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Commonwealth v. Paul

Appeals Court of Massachusetts, Essex

October 17, 2019

COMMONWEALTH
v.
JAMES R. PAUL

          April 5, 2019.

         Complaints received and sworn to in the Lawrence Division of the District Court Department on August 5, 2015, and September 2, 2015.

         The cases were tried before Holly V. Broadbent, J.

          Alison R. Bancroft for the defendant.

          Kayla M. Johnson, Assistant District Attorney, for the Commonwealth.

          Present: Agnes, Maldonado, & Sacks, JJ.

          AGNES, J.

         The principal issue in this case is whether the law that exempts a "new resident moving into the commonwealth" from the requirement of a license to possess a firearm "for 60 days after such . . . entry into the commonwealth," G. L. c. 140, § 129C (j), applies to the circumstances of this case. The defendant, James R. Paul, appeals from his convictions of possession of a firearm without a license, in violation of G. L. c. 269, § 10 (a.); possession of ammunition without a firearm identification card (FID), in violation of G. L. c. 269, § 10 (h) (1); and possession of a loaded firearm without a license, in violation of G. L. c. 269, § 10 (n), [1] For the following reasons, we conclude that the exemption does not apply. Thus, we affirm the convictions, except for the loaded firearm conviction, which we vacate on a separate ground and remand.

         On August 5, 2015, at approximately 6:58 A.M., Trooper Michael O'Brien responded to a radio broadcast of a pedestrian, the defendant, walking southbound on Interstate Highway 93 approximately six miles south of the New Hampshire border. The trooper located the defendant walking between the guardrail and the tree line. The trooper pulled over into an emergency cutout in the road ahead of him and told the defendant that he could not walk on the highway. In the ensuing conversation, the defendant told the trooper that he was coming from New Hampshire and trying to get to a gasoline (gas) station a few exits south of Interstate Highway 495 to meet a friend. The defendant stated that he was homeless and that, although he "still travels the country," "his end goal was to get to Michigan." He appeared to the trooper as if he had camped the night before because he looked disheveled, wore unclean clothes, and "hadn't bathed in a couple of days." The trooper offered to drive the defendant to the gas station he was walking to, and the defendant accepted the invitation.

         The trooper asked the defendant if he had any weapons, to which the defendant replied in the affirmative, pointing to his backpack, stating that "his uniform" was in it and that he worked for Homeland Security. The trooper repeated his question, and the defendant "stated that there was a firearm in the bag." The defendant complied with the trooper's instruction to step back. The defendant directed the trooper to where in the backpack the firearm was located. The trooper located a Ruger SR9 semiautomatic pistol in its holster, loaded with five rounds of ammunition, and a second fully loaded magazine, and secured the weapon. Other items in the bag included an active New Hampshire license to carry a firearm, a New Hampshire driver's license, the defendant's passport, a water purification kit, and other items indicative of someone camping. The defendant did not produce any law enforcement credentials or a Massachusetts license to carry a firearm.

         Trooper O'Brien advised the defendant of his Miranda rights. The defendant stated that he could not speak with the trooper about his clearance but would speak with the trooper's supervisor. The defendant was taken into custody and driven to the Andover State police barracks, where he spoke with the station commander. The defendant reiterated that he worked for "Homeland" but declined to speak further. At booking, Trooper O'Brien advised the defendant of the charges against him, and the defendant replied that "the firearm was for life and property."

         Prior to trial, the defendant filed a motion to dismiss the charges, which, following a hearing on the motion, the court denied on February 10, 2016. Also prior to trial, the defendant filed a "Notice of Intent to Rely Upon Exemption," referring in particular to G. L. c. 140, § 129C (j), which provides in part that "any new resident moving into the commonwealth" is exempt from the firearm licensing laws for sixty days after such person enters into the Commonwealth.

         A two-day jury trial commenced on July 27, 2017. As to the defendant's request to present the § 129C (j) exemption as a defense, the judge indicated that, based on the defendant's proffer, she was not yet persuaded that there was sufficient evidence for her to instruct the jury on that defense. Following the close of evidence, the defendant filed a motion for a required finding of not guilty, which, after a hearing, was denied. The court also denied the defendant's request to instruct the jury on the new resident exemption, to which the defendant objected. The jury found the defendant guilty on all counts.

         Discussion.

         1. The G. L. c. 269, § 10 (n) ...


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