Supreme Judicial Court of Massachusetts, Middlesex
November 5, 2018.
motion to dismiss was heard by Barbara Savitt Pearson, J.,
and the cases were tried before James W. Coffey, J.
Supreme Judicial Court granted an application for direct
Christopher DeMayo for the defendant. Ashlee R. Mastrangelo,
Assistant District Attorney (Melissa Weisgold Johnsen,
Assistant District Attorney, also present) for the
Healey, Attorney General, & Thomas E. Bocian, Assistant
Attorney General, for the Attorney General, amicus curiae,
submitted a brief.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, &
case concerns challenges to the firearms licensing statute by
the defendant, a firearm owner licensed to carry firearms in
New Hampshire, who moved to the Commonwealth and did not
obtain a Massachusetts firearm license within the sixty-day
statutory time period for new residents.
his return from a brief visit to New Hampshire, the
defendant, who was intoxicated, got into a confrontation with
his girlfriend in the early morning hours of September 12,
2015; she fled the apartment and called police. Officers
returned with her to the apartment and spoke with the
defendant, who agreed that he owned a Glock 43 pistol, and
told them that it was in the trunk of his vehicle. Officers
retrieved the weapon for "safekeeping" and kept the
defendant overnight at the police station for his own safety
after they determined he was too intoxicated to drive.
defendant was not arrested, but two criminal complaints
subsequently issued from the District Court charging him with
unlawful possession of a firearm in violation of G. L. c.
269, § 10 (h) (1); unlawful possession of ammunition in
violation of G. L. c. 269, § 10 (h) (1); and unlawful
possession of a firearm in violation of G. L. c. 269, §
10 (a.), A District Court jury convicted the
defendant on all charges. He appealed, and we allowed his
application for direct appellate review.
defendant challenges the denial of his motion to dismiss the
complaint charging unlawful possession of a firearm in
violation of G. L. c. 269, § 10 (a.), on constitutional
grounds. In the alternative, he requests a new
trial on the grounds of asserted errors in the jury
instructions and purported prejudice as a result of
assertedly improper questioning of a witness by the
prosecutor. We affirm.
1. Motion to dismiss. a. Factual
background. The limited facts before the judge were
drawn predominantly from a police report submitted as an
exhibit to the defendant's motion to dismiss.
January 2015, Patty and the defendant started dating. At the
time, Patty was living in an apartment in Tewksbury. In late
May 2015, the defendant moved into Patty's apartment.
4, 2015, Patty and the defendant removed some of her
belongings from the apartment to make room for the
defendant's belongings. That night, the defendant woke
Patty by yelling. He pushed her across the room and pinned
her to a wall. The defendant had found a photograph of
Patty's former boyfriend. The defendant said that he
would "mutilate" the former boyfriend "in
front of [Patty] ... or worse." He also said that he
would "assassinate anyone [he] want[ed] anytime [he]
want[ed]," and told Patty that he was "the most
brutal person [she] will meet." The defendant counted
rounds of ammunition and identified jackets he would wear at
his victims' funerals.
September 11, 2015, the defendant and Patty were in the
Tewksbury apartment. They had a verbal argument about
Patty's work schedule, during which the defendant was
verbally abusive. He went to the bedroom closet, where he
retrieved a weapon that Patty identified as his
"Glock." There was no indication that the firearm
was loaded, but Patty also saw ammunition.
defendant removed articles of his clothing from the closet;
packed them, with the Glock, in a backpack; and left the
apartment. The defendant planned to "stay in New
Hampshire for the night." The defendant did not end up
staying in New Hampshire. Rather, at approximately 1 A.M. on
September 12, 2015, "after drinking," he came home
to Tewksbury. He was intoxicated. Patty was asleep and did
not hear the defendant enter the apartment.
defendant "threw on the lights and pulled the blankets
off" Patty. He became enraged when she told him that
"he was drunk" and that she "wanted nothing to
do with him in [that] state." He began throwing items
around and "trashing the apartment," while yelling
at Patty and using obscene language.
about the Glock and the defendant's earlier actions,
Patty became fearful for her safety. In an attempt to calm
the defendant, Patty called his father, but this resulted in
the defendant becoming yet more enraged. Patty grabbed her
dog and keys, and called police as she fled the apartment;
the defendant ran after her. After Patty got into her
vehicle, the defendant "banged on" its exterior.
Patty drove to a prearranged location, where she waited for
approximately 1:30 A.M., multiple uniformed officers
responded in marked cruisers. Patty informed them that she
was unsure if the defendant "had the Glock in [his]
vehicle or in his possession," and consented to a
protective sweep of the apartment.
officers formed a contact team and entered the apartment
building. An officer used a cellular telephone to call the
defendant, and requested that he step outside. The defendant
complied. He said that he "had gone out drinking"
before "coming home" to Tewksbury. He also
acknowledged that he did not have a Massachusetts firearm
license. Instead, he produced a New Hampshire firearm
license. The defendant said that he had a Glock 43 (a nine
millimeter pistol) in the trunk of his vehicle. He consented
to a search of the vehicle, during which officers located the
firearm and ammunition.
scene, Patty requested an emergency protection order under G.
L. c. 2O9A. A judge issued the order, which was served on the
defendant. Pursuant to the order, officers confiscated the
defendant's firearm and ammunition for safe keeping.
While they were doing so, the defendant commented that he
"had connections" and would regain possession of
the Glock. He also said that the protection order
"won't stick." The defendant was not arrested.
Rather, he was placed in protective custody when, after he
failed multiple sobriety tests, officers determined that he
would be unable to drive safely from the scene.
result of the restraining order, the Atkinson, New Hampshire,
police chief revoked the defendant's New Hampshire
complaints against the defendant ultimately were filed; he
moved to dismiss the complaints. At a hearing on the motion,
the defendant asserted an affirmative defense predicated on
his by-then-revoked New Hampshire firearm license. In
addition, he maintained that he was a New Hampshire resident
who had been traveling "in or through the
Commonwealth" at the time of the domestic dispute. The
judge noted, however, that the defendant's residency
status was a disputed issue of fact that could not be decided
on a motion to dismiss. The judge denied the defendant's
motion and found probable cause to believe the defendant was
a resident of the Commonwealth and had been living with Patty
in Tewksbury while unlawfully possessing a firearm. We
discern no error in the judge's decision.
Massachusetts firearm license. In his motion to
dismiss, the defendant raised both facial and as-applied
challenges to the constitutionality of G. L. c. 269, §
10 (a.) . On appeal, he pursues only a facial challenge, and
that only summarily.
facial challenge is an attack on a statute itself as opposed
to a particular application." Los Angeles v.
Patel, 135 S.Ct. 2443, 2449 (2015). "Facial
challenges are disfavored" because they "run
contrary to the fundamental principle of judicial
restraint" and "threaten to short circuit the
democratic process by preventing laws embodying the will of
the people from being implemented in a manner consistent with
the Constitution" (citation omitted). SeeWashington State Grange v. Washington State Republican
Party, 552 U.S. 442, 450-451 (2008). See also
Hightower v. Boston, 693 F.3d 61, 76-77 (1st Cir.
2012). A facial challenge ...