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Commonwealth v. Grayson

Appeals Court of Massachusetts, Suffolk

December 20, 2019


          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.

          James M. Fox for the defendant.

          Kathryn Sherman, Assistant District Attorney, for the Commonwealth.

          Present: Massing, Sacks, & Hand, JJ.

          SACKS, J.

         Is 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.[1] See G. L. c. 269, § 10 (a); G. L. c. 266, § 120.


         Viewing 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.

         In the meantime, the defendant, in Henriquez's words, "attempted to flee" on his bicycle, steering with one hand while clutching his waistband[2] 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.

         After 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, [3] 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 defendant.

         Henriquez 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.[4] 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.

         A 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 day.

         The 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.

         The 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.[5] 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 unloaded."

         D ...

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