received and sworn to in the Lawrence Division of the
District Court Department on August 5, 2015, and September 2,
cases were tried before Holly V. Broadbent, J.
R. Bancroft for the defendant.
M. Johnson, Assistant District Attorney, for the
Present: Agnes, Maldonado, & Sacks, JJ.
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),  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.
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.
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.
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."
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.
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.
The G. L. c. 269, § 10 (n) ...