Heard: October 8, 2019.
Complaint received and sworn to in the Dorchester Division of
the Boston Municipal Court Department on July 20, 2018. The
case was tried before Jonathan R. Tynes, J.
M. Fox for the defendant.
Kathryn Sherman, Assistant District Attorney, for the
Present: Massing, Sacks, & Hand, JJ.
evidence that the defendant carried a loaded semiautomatic
pistol in his waistband sufficient, without more, to prove
beyond a reasonable doubt that he knew the pistol was loaded?
Concluding that it is not, we reverse the defendant's
conviction, after a jury trial, of carrying a loaded firearm
without a license, G. L. c. 269, § 10 (n). We affirm, as
supported by sufficient evidence, his convictions of carrying
a firearm without a license and of trespassing. See G. L. c. 269,
§ 10 (a); G. L. c. 266, § 120.
the evidence in the light most favorable to the Commonwealth,
the jury could have found the following facts. At about 7
P.M. on a July evening in 2018, Boston Police Detective
Ishmael Henriquez and three other detectives were driving
through Dorchester, looking for a young man for whom they had
an arrest warrant. The detectives spotted the man on a
bicycle, accompanied by another young man, later identified
as the defendant, also on a bicycle. The detectives drove to
a spot a few blocks ahead of the men and parked. As the men
approached on their bicycles, Henriquez's partners got
out of the cruiser and stopped and arrested the man for whom
they had a warrant.
meantime, the defendant, in Henriquez's words,
"attempted to flee" on his bicycle, steering with
one hand while clutching his waistband with the other.
Based on Henriquez's training about the characteristics
of armed persons, Henriquez was alert to the possibility that
the defendant was carrying a firearm.
riding past two houses, the defendant attempted to turn onto
a side street but, continuing to steer with only one hand,
lost control and fell off his bicycle. He broke his fall with
one hand, keeping the other on his waistband. Henriquez
pursued on foot and saw the defendant run down a driveway
toward the rear of a house, continuing to clutch his
waistband. Behind the house, the defendant, still holding his
waistband, climbed over a five- or six-foot wooden fence,
breaking it in the process, and entered an adjacent back yard
that in turn bordered on other back yards. Henriquez
attempted to follow, but a large dog appeared, causing
Henriquez to suspend the chase and lose sight of the
contacted his partners and other officers by radio and
arranged for them to set up a perimeter to ensure that no one
could leave the area of back yards without being
observed. The detectives began to search the yards.
Within ten minutes, on the far side of the yard that the
defendant had entered by climbing over the fence, they found
a white sock at the base of a second fence, approximately
four feet tall. Although the sock was knotted closed, they
could see that it contained an object shaped like a firearm.
Just on the other side of the fence, in another yard, they
found a pair of discarded sneakers.
further search located the defendant hiding in a back yard a
few houses down the block. He was wearing loose-fitting
sweatpants. He was not wearing any shoes, and on
cross-examination Henriquez agreed that one could infer the
defendant had "r[u]n out of his sneakers" because
he was "going so fast." The defendant was arrested
and frisked; no contraband was found. Nor was any other
contraband located in any of the back yards searched that
object inside the knotted sock proved to be a semiautomatic
pistol, loaded with a magazine capable of holding eight
rounds of ammunition and containing seven. No usable
fingerprints were found on any of the items. A police
firearms examiner found the pistol to be operable and to have
a barrel length of 3.75 inches.
examiner further testified that, unless the pistol's
slide were open, there would be no way to tell if the pistol
was loaded simply by looking at it. To make that determination,
one would have to attempt to fire it, or to remove the
magazine to see if it contained ammunition. Henriquez agreed;
he contrasted a pistol to a revolver, in which ammunition
would be visible in the cylinder before being rotated into
firing position. Henriquez further agreed that "in this
case, if [he] were to be given that weapon not knowing
anything about it, [he] couldn't tell if it was loaded or