Supreme Judicial Court of Massachusetts, Worcester
January 5, 2018.
found and returned in the Superior Court Department on
December 13, 2013.
cases were tried before William F. Sullivan, J.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
Deborah Bates Riordan (Theodore F. Riordan also present) for
Michelle R. King, Assistant District Attorney, for the
David Rangaviz, Committee for Public Counsel
Services, for Erickson Resende, amicus curiae, submitted a
Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.
primary issue presented in this appeal is whether the
Commonwealth is required to prove a defendant knows that a
firearm in his or her possession is loaded in order to be
convicted of unlawful possession of a loaded firearm under G.
L. c. 269, § 10 (n).
police officers discovered a loaded firearm in the rear
console of a vehicle driven by the defendant, he was charged
with and convicted of unlawful possession of a firearm, G. L.
c. 269, § 10 (a.), and unlawful possession of a loaded
firearm, G. L. c. 269, § 10 (n),  The defendant
appealed from his convictions, and the Appeals Court vacated
the conviction of possession of a loaded firearm, after it
concluded that G. L. c. 269, § 10 (n), requires the
Commonwealth to prove a defendant's knowledge that the
firearm was loaded. See Commonwealth v. Brown, 91
Mass.App.Ct. 286, 287, 293 (2017) . Because the defendant
"could not have discerned whether the gun was loaded
merely by looking at it, " and the Commonwealth
presented no evidence that the defendant had knowledge that
the gun was loaded, the Appeals Court decided that there was
"no basis on which a rational juror could conclude
beyond a reasonable doubt that the defendant knew the gun was
loaded." Id. at 293. The Appeals Court affirmed
the conviction of possession of a firearm without a license,
concluding that the prosecutor's closing argument was not
improper and that, even if it was, it did not result in a
substantial risk of a miscarriage of justice. I_d. at 294. We
allowed both parties' applications for further appellate
brief to this court, the Commonwealth contends that G. L. c.
269, § 10 (n), is merely a sentencing enhancement for
the underlying offense of unlawful possession of a firearm,
G. L. c. 269, § 10 (a.) . In this view, an additional
element of knowledge that a firearm contains ammunition is
not required to prove a violation of G. L. c. 269, § 10
(n). All that is required is knowledge of possession of a
firearm. The defendant challenges the sufficiency of the
evidence to support a conviction of possession of a loaded
firearm and the Appeals Court's determination that the
prosecutor's closing argument did not create a
substantial risk of a miscarriage of justice.
conclude that, to sustain a conviction under G. L. c. 269,
§ 10 (n), the Commonwealth must prove that a defendant
knew the firearm he or she possessed was loaded. Because the
Commonwealth presented no evidence in this case that could
allow any rational trier of fact to find beyond a reasonable
doubt that the defendant knew the firearm was loaded, the
conviction of possession of a loaded firearm without a
license cannot stand. Further, because we conclude that the
Commonwealth's closing argument did not create a
substantial risk of a miscarriage of justice, we affirm the
conviction of possession of a firearm without a license, in
violation of G. L. c. 269, § 10 (a) .
Background. As the defendant challenges the
sufficiency of the evidence of his knowledge that the firearm
was loaded, we recite the evidence in the light most
favorable to the Commonwealth. Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979) .
morning of July 4, 2013, State police Trooper Matthew Moran
stopped a vehicle the defendant was driving on Interstate
Route 290 in Worcester for a defective rear brake light.
There were two passengers in the vehicle: a male passenger,
Horace Murphy, in the front passenger seat; and a female
passenger, Joelene Cataquet, in the back seat. Cataquet was
asleep when the vehicle was stopped. The defendant said that
he was returning from his former girl friend's house in
Worcester and was headed back to Boston. He gave the trooper
a Massachusetts identification card and a Massachusetts