Commonwealth v. Brown

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SJC-12348

COMMONWEALTH vs. TYRIEK BROWN.

Worcester. January 5, 2018. - May 22, 2018.

Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.

Firearms. Evidence, Firearm. Practice, Criminal, Argument by
prosecutor. Words, "Knowingly."

Indictments found and returned in the Superior Court
Department on December 13, 2013.

The cases were tried before William F. Sullivan, J.

After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.

Deborah Bates Riordan (Theodore F. Riordan also present)
for the defendant.
Michelle R. King, Assistant District Attorney, for the
Commonwealth.
David Rangaviz, Committee for Public Counsel Services, for
Erickson Resende, amicus curiae, submitted a brief.

GAZIANO, J. The primary issue presented in this appeal is

whether the Commonwealth is required to prove a defendant knows

that a firearm in his or her possession is loaded in order to be
 2

convicted of unlawful possession of a loaded firearm under G. L.

c. 269, § 10 (n).

After police officers discovered a loaded firearm in the

rear console of a vehicle driven by the defendant, he was

charged with and convicted of unlawful possession of a firearm,

G. L. c. 269, § 10 (a), and unlawful possession of a loaded

firearm, G. L. c. 269, § 10 (n).1 The defendant appealed from

his convictions, and the Appeals Court vacated the conviction of

possession of a loaded firearm, after it concluded that G. L.

c. 269, § 10 (n), requires the Commonwealth to prove a

defendant's knowledge that the firearm was loaded. See

Commonwealth v. Brown, 91 Mass. App. Ct. 286, 287, 293 (2017).

Because the defendant "could not have discerned whether the gun

was loaded merely by looking at it," and the Commonwealth

presented no evidence that the defendant had knowledge that the

gun was loaded, the Appeals Court decided that there was "no

basis on which a rational juror could conclude beyond a

reasonable doubt that the defendant knew the gun was loaded."

Id. at 293. The Appeals Court affirmed the conviction of

possession of a firearm without a license, concluding that the

1 Before trial, a separate charge of possession of
ammunition without a firearms identification card was dismissed
at the request of the Commonwealth. The defendant was acquitted
of possession of a firearm with a defaced serial number, and
pleaded guilty to operation of a motor vehicle without a valid
license.
 3

prosecutor's closing argument was not improper and that, even if

it was, it did not result in a substantial risk of a miscarriage

of justice. Id. at 294. We allowed both parties' applications

for further appellate review.

In its brief to this court, the Commonwealth contends that

G. L. c. 269, § 10 (n), is merely a sentencing enhancement for

the underlying offense of unlawful possession of a firearm,

G. L. c. 269, § 10 (a). In this view, an additional element of

knowledge that a firearm contains ammunition is not required to

prove a violation of G. L. c. 269, § 10 (n). All that is

required is knowledge of possession of a firearm. The defendant

challenges the sufficiency of the evidence to support a

conviction of possession of a loaded firearm and the Appeals

Court's determination that the prosecutor's closing argument did

not create a substantial risk of a miscarriage of justice.

We conclude that, to sustain a conviction under G. L.

c. 269, § 10 (n), the Commonwealth must prove that a defendant

knew the firearm he or she possessed was loaded. Because the

Commonwealth presented no evidence in this case that could allow

any rational trier of fact to find beyond a reasonable doubt

that the defendant knew the firearm was loaded, the conviction

of possession of a loaded firearm without a license cannot

stand. Further, because we conclude that the Commonwealth's

closing argument did not create a substantial risk of a
 4

miscarriage of justice, we affirm the conviction of possession

of a firearm without a license, in violation of G. L. c. 269,

§ 10 (a).2

1. Background. As the defendant challenges the

sufficiency of the evidence of his knowledge that the firearm

was loaded, we recite the evidence in the light most favorable

to the Commonwealth. Commonwealth v. Latimore, 378 Mass. 671,

677 (1979).

On the morning of July 4, 2013, State police Trooper

Matthew Moran stopped a vehicle the defendant was driving on

Interstate Route 290 in Worcester for a defective rear brake

light. There were two passengers in the vehicle: a male

passenger, Horace Murphy, in the front passenger seat; and a

female passenger, Joelene Cataquet, in the back seat. Cataquet

was asleep when the vehicle was stopped. The defendant said

that he was returning from his former girl friend's house in

Worcester and was headed back to Boston. He gave the trooper a

Massachusetts identification card and a Massachusetts learner's

permit. Murphy produced a Georgia driver's license. Moran

determined through registry of motor vehicles records that both

licenses were suspended in Massachusetts.

2 We acknowledge the amicus brief submitted by Erickson
Resende.
 5

After a second trooper, Patrick Mahady, arrived in response

to Moran's request for backup, the defendant was arrested for

driving with a suspended license and was placed in Mahady's

cruiser. Moran then read the defendant the Miranda rights, and

the defendant indicated that he understood those rights. At

that point, Moran determined that, because Cataquet did not have

a driver's license, the vehicle would have to be towed from the

highway, as none of the occupants legally could drive it. In

preparation for towing, Moran conducted an inventory search of

the vehicle while the defendant was in Mahady's cruiser and the

two passengers waited behind the vehicle near the guardrail.

Moran discovered a handgun loaded with five rounds of ammunition

in the console between the rear passenger seats. After this

discovery, Mahady arrested both passengers.

On the drive to the State police barracks, the defendant

initiated a conversation with Mahady, saying that he thought

Murphy had a license to carry a firearm. The defendant also

said that he had gone to his former girl friend's house in

Worcester that morning to pick up some clothing. While he was

there, the girl friend's sister began arguing with an unknown

male and waving a firearm around. The defendant said that he

grabbed the gun from the woman and left the house. When he

returned to the vehicle, where Murphy and Cataquet were waiting,

he handed the gun to Cataquet and said that they would get rid
 6

of the gun later. Upon their arrival at the barracks, Mahady

was called to another incident and left the defendant with Moran

without mentioning the conversation. When Moran again advised

the defendant of his Miranda rights, the defendant declined to

speak with officers. At trial, Mahady testified to the

substance of the conversation in the cruiser.

During booking, Cataquet gave a written statement, a

redacted version of which was read in evidence by Mahady.3 As

Mahady read it, the statement said,

"It is my firearm. I claim full responsibility for
the firearm. I took it out of my purse and slid it into
the rear console because it made my purse heavy . . . .

"I took a nap while we were riding on the highway, and
the two men in front, [the defendant] and [Murphy], did not
know at all that I was carrying a fully loaded clip firearm
in the vehicle. And when I woke up out of my nap, both the
men were in handcuffs. The officer asked me if it was
mine. I said no, but I was scared. But most importantly,
I can't let two men lose their freedom because I . . . had
the firearm on the ride to the station. I realized that,
and that's why I'm writing this written statement. I take
responsibility for my actions. The reasons I have a gun is
because I was recently raped and felt the need to have a
gun to protect myself. Once again, I take full
responsibility."

There were no useable fingerprints on the firearm, the

magazine, or the ammunition. A forensic scientist was unable to

obtain the serial number for use in tracing the owner of the

3 Cataquet's handwritten statement was introduced as a
declaration against penal interest. See Mass. G. Evid.
§ 804(b)(3) (2018). The written form and its discussion of
Miranda warnings were redacted before being given to the jury.
 7

firearm. The defendant was convicted of unlawful possession of

a firearm in a vehicle and unlawful possession of a loaded

firearm in a vehicle, and acquitted of possession of a firearm

with a defaced serial number.4 The Appeals Court reversed the

conviction of possession of a loaded firearm without a license

and affirmed the conviction of possession of a firearm (in a

vehicle) without a license to carry. We allowed both parties'

applications for further appellate review.

2. Discussion. a. Mens rea requirement for G. L. c. 269,

§ 10 (n). General Laws c. 269, § 10 (a), defines the offense of

possession of a firearm, not in an individual's home or

business, without a license. The statute is violated, inter

alia, when an individual "knowingly has in his possession[,] or

knowingly has under his control in a vehicle[,] a firearm,

loaded or unloaded, . . . without either . . . being present in

or on his residence or place of business . . . or having in

effect a license to carry firearms . . . ." See Commonwealth v.

Sann Than, 442 Mass. 748, 752 (2004).

General Laws c. 269, § 10 (n), provides a sentencing

enhancement to the crime of unlicensed possession of a firearm

4 As mentioned, after trial on the firearms charges, the
defendant pleaded guilty to the charge of operating a motor
vehicle with a suspended license. He does not appeal from that
conviction, and it is not before us.
 8

where an unlicensed firearm was loaded.5 It does not create a

stand-alone offense; in order to be convicted under G. L.

c. 269, § 10 (n), an individual must first have been convicted

under G. L. c. 269, § 10 (a) or (c). Commonwealth v. Loadholt,

456 Mass. 411, 423-424 (2010), S.C., 460 Mass. 723 (2011). See

Commonwealth v. Dancy, 90 Mass. App. Ct. 703, 705 (2016) ("We

interpret the plain language of this section to require a

finding that § 10[a] or § 10[c] has been violated before the

penalty enhancement provision in § 10[n] can apply").

At the close of all the evidence in this case, the judge

indicated that he would give the jury instruction for the charge

of unlawful possession of a loaded firearm proposed by defense

counsel. Under the wording of that instruction, the

Commonwealth was required to prove that (1) the defendant

possessed or had control over a firearm; (2) the weapon met the

legal definition of a firearm; (3) the defendant knew that he

possessed a firearm; and (4) ammunition was contained in the

weapon or within the feeding device attached to the weapon. The

5 General Laws c. 269, § 10 (n), provides, in its entirety:

"Whoever violates paragraph (a) or paragraph (c), by
means of a loaded firearm, loaded sawed off shotgun or
loaded machine gun shall be further punished by
imprisonment in the house of correction for not more than
[two and one-half] years, which sentence shall begin from
and after the expiration of the sentence for the violation
of paragraph (a) or paragraph (c)."
 9

judge ultimately gave an instruction that combined language

requested by the defendant and by the Commonwealth, and which

mistakenly stated that five elements were required, while

including only the four elements listed above. During

deliberations, the jury sent the judge the following question:

"[O]ur instruction[] says there must be five elements, and we

were only provided with four. Does the defendant have to know

whether the firearm was loaded, or just that he possessed it and

it was loaded?" The judge conferred with each attorney and

ultimately decided, with the agreement of both attorneys, to

explain that the word "five" had been a misprint and should have

been "four," and then to read the version of the instruction

that the defendant had requested as to the required elements of

the offense.

In his appeal to the Appeals Court, the defendant

challenged the sufficiency of the evidence to sustain the

conviction under G. L. c. 269, § 10 (n), arguing that the

Commonwealth was required to prove that he knew the firearm was

loaded. Relying on our prior case law that unlawful possession

of ammunition, G. L. c. 269, § 10 (h), is a lesser included

offense of unlawful possession of a loaded firearm, and requires

the Commonwealth to prove that a defendant knowingly possessed

ammunition, the Appeals Court concluded that it was bound by the

reasoning of Commonwealth v. Johnson, 461 Mass. 44, 52-53
 10

(2011), and adopted the defendant's argument. See Brown, 91

Mass. App. Ct. at 291-293; Johnson, supra at 53 (conviction of

possession of unlicensed firearm requires knowledge that object

possessed met definition of firearm, and possession of

ammunition without firearms identification card requires

knowledge that ammunition possessed met legal definition of

ammunition; because "[a]ll of the required elements of unlawful

possession of ammunition were encompassed by the elements of

unlawful possession of a loaded firearm, . . . the former crime

was a lesser included offense of the latter crime"). As the

evidence here showed that the defendant "could not have

discerned whether the gun was loaded merely by looking at it,"

and the Commonwealth presented no evidence that the defendant

knew it was loaded, the Appeals Court concluded that there was

"no basis on which a rational juror could conclude beyond a

reasonable doubt that the defendant knew the gun was loaded" and

set aside the verdict on that charge. See Brown, supra at 293.

The Commonwealth argues that G. L. c. 269, § 10 (n), is

merely a sentencing enhancement for which a separate element of

mens rea is not required beyond that necessary to prove the

underlying offense, G. L. c. 269, § 10 (a). See Commonwealth v.

Rodriguez, 415 Mass. 447, 452-453 (1993) (in convicting

defendant of trafficking instead of possession, Commonwealth

need prove only quantity of drugs, not defendant's knowledge of
 11

quantity); Commonwealth v. Alvarez, 413 Mass. 224, 228-230

(1992) (statute providing sentencing enhancement for drug-

dealing offense committed within 1,000 feet of school does not

violate due process). The Commonwealth suggests that G. L.

c. 269, § 10 (n), "is not totally void of any mens rea

requirement," Alvarez, supra at 229, in that the Commonwealth

must prove the intent of the underlying possessory offense.

Because some provisions of the firearms statute explicitly

include a mens rea requirement ("knowingly"), the Commonwealth

maintains, the omission of any explicit language requiring

knowledge in the words of G. L. c. 269, § 10 (n), must indicate

that the Legislature intentionally omitted a knowledge

requirement for enhanced sentencing under G. L. c. 269,

§ 10 (n).

"Our primary duty in interpreting a statute is 'to

effectuate the intent of the Legislature in enacting it.'"

Sheehan v. Weaver, 467 Mass. 734, 737 (2014), quoting Water

Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass.

740, 744 (2010). "Ordinarily, where the language of a statute

is plain and unambiguous, it is conclusive as to legislative

intent." Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008).

That said, "[w]e will not adopt a literal construction of a

statute if the consequences of such construction are absurd or

unreasonable." Attorney Gen. v. School Comm. of Essex, 387
 12

Mass. 326, 336 (1982). See Black's Law Dictionary 11-12 (10th

ed. 2014) (defining "absurdity" as "being grossly unreasonable"

and "[a]n interpretation that would lead to an unconscionable

result, esp. one that . . . the drafters could not have

intended"). We therefore interpret statutes "so as to render

the legislation effective, consonant with sound reason and

common sense." Harvard Crimson, Inc. v. President & Fellows of

Harvard College, 445 Mass. 745, 749 (2006).

The absence of any explicit language requiring knowledge in

the enhancement provision of G. L. c. 269, § 10 (n), is not

dispositive. We previously have concluded that other provisions

of the firearms statute that do not explicitly contain a mens

rea requirement, among them G. L. c. 269, § 10 (c) and (h), and

previous versions of G. L. c. 269, § 10, implicitly require

knowledge. See Johnson, 461 Mass. at 53; Commonwealth v.

O'Connell, 432 Mass. 657, 663 (2000) (requiring knowledge of

possession, but not knowledge of barrel length, to be convicted

of possession of sawed-off shotgun with barrel less than

statutory minimum, G. L. c. 269, § 10 [c]); Commonwealth v.

Jackson, 369 Mass. 904, 916 (1976) (concluding that implicit

knowledge requirement existed in previous version of G. L.

c. 269, § 10 [a]); Commonwealth v. Boone, 356 Mass. 85, 87

(1969) (concluding that knowledge requirement was implicit in

former G. L. c. 269, § 10, predecessor to current G. L. c. 269,
 13

§ 10 [a]). With respect to G. L. c. 269, § 10 (a), the

Legislature ultimately revised the statutory language to include

the element of "knowing" after our decision in Jackson, supra;

it has not modified other provisions such as G. L. c. 269,

§ 10 (c) or (h).

We agree with the Appeals Court's analysis of our reasoning

in Johnson, 461 Mass. at 53, concerning lesser included firearms

offenses, and its implications in this case. "Under our long-

standing rule derived from Morey v. Commonwealth, 108 Mass. 433,

434 (1871), a lesser included offense is one whose elements are

a subset of the elements of the charged offense. . . . Thus, a

lesser included offense is one which is necessarily accomplished

on commission of the greater crime" (citation and quotations

omitted). Commonwealth v. Porro, 458 Mass. 526, 531 (2010).6 We

6 In Commonwealth v. Porro, 458 Mass. 526, 532 (2010), we
noted that there are "rare circumstances where the purposes of
our lesser included offense jurisprudence are not served by a
strict application of the doctrine in a particular case." This
is not such a case. "In general, the cases where we have
diverged from a strict application of the . . . rule have
involved instances where, although each offense contains an
element that the other does not, the different element in the
lesser included offense is routinely undisputed and was not in
dispute in the particular case." Id. See Commonwealth v.
Walker, 426 Mass. 301, 304-305 (1997) (no dispute as to age of
victims in convicting defendant of lesser included offense of
indecent assault and battery on child under fourteen years of
age); Costarelli v. Commonwealth, 374 Mass. 677, 683-684 (1978)
(unauthorized use of motor vehicle is lesser included offense of
larceny of motor vehicle where "use on a public way" is not
 14

repeatedly have reaffirmed our holding in Johnson, 461 Mass. at

52-53, that unlawful possession of ammunition is a lesser

included offense of unlawful possession of a loaded firearm

where the only ammunition at issue is contained in the firearm.

See Commonwealth v. Rivas, 466 Mass. 184, 188-189 (2013);

Commonwealth v. Charles, 463 Mass. 1008, 1008 (2012), cert.

denied, 568 U.S. 1238 (2013); Commonwealth v. Jefferson, 461

Mass. 821, 828 n.7 (2012); Commonwealth v. Anderson, 461 Mass.

616, 632 n.17, cert. denied, 568 U.S. 946 (2012). Each element

of the charge of unlawful possession of ammunition, therefore,

must be an element of unlawful possession of a loaded firearm.

Because the Commonwealth is required to prove that a defendant

knowingly possesses ammunition that meets the legal definition

of ammunition, see Johnson, supra, we conclude that the

Commonwealth also must prove the element of knowing that the

firearm was loaded with ammunition in order to convict a

defendant of unlawful possession of a loaded firearm under G. L.

c. 269, § 10 (n).

b. Evidence of defendant's knowledge. In reviewing a

claim of insufficient evidence, we ask "whether, after viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

often contested in practice). By contrast, knowledge whether
the firearm was loaded was and is disputed here.
 15

of the crime beyond a reasonable doubt" (emphasis in original).

Latimore, 378 Mass. at 677, quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979). Here, we consider the sufficiency of the

Commonwealth's evidence as to the defendant's knowledge whether

the firearm he possessed was loaded.

We have observed that, in particular circumstances, a

rational jury could infer that an individual who possessed a

firearm was aware that it was loaded. See Commonwealth v.

Cassidy, 479 Mass. 527, 537 (2018). "[K]nowledge can be

inferred from circumstantial evidence, including any external

indications signaling the nature of the weapon." Staples v.

United States, 511 U.S. 600, 615 n.11 (1994) ("firing a fully

automatic weapon would make the regulated characteristics of the

weapon immediately apparent to its owner"). See Commonwealth v.

Romero, 464 Mass. 648, 653 (2013) ("Proof of possession of

[contraband] may be established by circumstantial evidence, and

the inferences that can be drawn therefrom" [citation omitted]).

In this case, however, it was not possible to discern

merely by observation whether the pistol found in the

defendant's vehicle was loaded; the magazine was inserted inside

the handle and was not visible. In addition, the Commonwealth

did not present any evidence from which an inference could be

drawn that the defendant was aware that the firearm was loaded.

See Brown, 91 Mass. App. Ct. at 293 & n.13 ("In its brief, the
 16

Commonwealth defended the sufficiency of the evidence based only

on its argument that it need not prove that the defendant knew

that the gun was loaded. When pressed on the issue at oral

argument, the Commonwealth characterized any proof of such

knowledge as 'thin'").

Accordingly, on the facts of this case, no rational trier

of fact could have found beyond a reasonable doubt that the

defendant knew the firearm was loaded, and the conviction of

possession of a loaded firearm without a license cannot stand.

c. Closing argument. The defendant also challenges the

propriety of certain portions of the prosecutor's closing

argument in which he suggested that Cataquet might have been the

defendant's "new" girl friend, and that, consequently, she had a

motive to fabricate and might have given the statement about the

gun in order to protect him.

In his closing argument, the prosecutor argued that this

was "a case about confessions." He urged the jury to credit

Mahady's testimony concerning the defendant's statement about

the gun, because he had no reason to lie, he did not "look" like

he had been lying, and "his testimony makes sense." By the same

token, the prosecutor urged the jury to disbelieve Cataquet's

written statement that the gun belonged to her and that the

defendant was unaware that it was in the vehicle, as likely

motivated by Cataquet's relationship with the defendant. In
 17

conjunction with that argument, the prosecutor emphasized

inconsistencies in Cataquet's statement: Cataquet told police

that the firearm had a "fully loaded clip" and that she had

removed it from her purse because it was too heavy, yet the

magazine was "half full"7 and no purse was collected from

Cataquet at booking. The prosecutor then suggested that the

defendant's relationship with his former girl friend must have

ended recently, that Cataquet had remained in the vehicle when

the defendant went to pick up clothes from his former girl

friend's house "to avoid the ex," and that "it is certainly

possible that Cataquet was covering for her boyfriend." The

prosecutor then ended his closing as he had begun, by saying,

"It's that simple: He said it was his gun. And this isn't a

case about accusations. It's a case about confessions."

The defendant contends that these suggested inferences were

improper and that, as a result, a new trial is required.

Because the defendant did not object to these remarks at trial,

we review for a substantial risk of a miscarriage of justice.

See Commonwealth v. Dirgo, 474 Mass. 1012, 1016 (2016). "The

7 The testimony of the ballistician was that there had been
five bullets in the magazine, and one was fired during
ballistics testing, so four new bullets and one spent projectile
were introduced in evidence. There was no evidence how much
ammunition the magazine held, or how many bullets would have
been required in order for it to be "half full," but the
evidence did indicate that the magazine was not full.
 18

substantial risk standard requires us to determine 'if we have a

serious doubt whether the result of the trial might have been

different had the error not been made.'" Id., quoting

Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass.

72 (2005). The Appeals Court did not determine whether the

suggested inferences were reasonable, because it concluded that

any error would not have created a substantial risk of a

miscarriage of justice. See Brown, 91 Mass. App. Ct. at 294

("We are confident that the jury's verdict would not have been

different had the prosecutor not raised the possibility that the

two individuals were dating").

"Prosecutors must limit the scope of their arguments to

facts in evidence and inferences that may be reasonably drawn

from the evidence." Commonwealth v. Coren, 437 Mass. 723, 730

(2002). Nonetheless, "[t]he inferences . . . need only be

reasonable and possible and need not be necessary or

inescapable," Commonwealth v. Dinkins, 415 Mass. 715, 725

(1993). "In analyzing a claim of improper argument, the

prosecutor's remarks must be viewed in light of the 'entire

argument, as well as in light of the judge's instruction to the

jury and the evidence at trial.'" Commonwealth v. Lamrini, 392

Mass. 427, 432 (1984), quoting Commonwealth v. Bourgeois, 391

Mass. 869, 885 (1984).
 19

The prosecutor did not explicitly present the purported

relationship as outright fact, arguing that "it is certainly

possible" that the defendant and Cataquet were involved in a

relationship, but the prosecutor did rely on this suggested

inference. The defendant contends that such an inference was

unreasonable where there was no evidence that the two were

involved in a romantic relationship, particularly as there was a

third passenger in the vehicle and Cataquet was in the back

seat.

As the Commonwealth maintains, the suggested inference that

the defendant and Cataquet were in a relationship did support a

motive for lying, but, given the evidence introduced, the

suggestion itself is, at best, a stretch. There was no evidence

to indicate that Cataquet and the defendant were involved in a

romantic relationship, and we do not adopt the Commonwealth's

suggestion that being a rear seat passenger in a vehicle the

defendant was driving, with another passenger in the front seat,

would suggest as much. The inference that the defendant and

Cataquet were involved in a romantic relationship so close that

she would lie about having committed a crime in order to protect

him went too far.

Nonetheless, the discrepancies in Mahady's and Cataquet's

statements were squarely before the jury, as was the lack of

evidentiary support for Cataquet's statements. In the
 20

circumstances here, even if the challenged inference of a motive

for a "coverup" was not reasonable, we conclude that there was

no substantial risk of a miscarriage of justice in the

prosecutor's statements. While the remarks should not have been

made, the judge properly instructed the jury that closing

arguments are not evidence and that they must "confine [their]

consideration to the evidence and nothing but the evidence."

See Commonwealth v. Resende, 476 Mass. 141, 154-155 (2017). We

are confident that the result of the trial would not have been

different if the prosecutor had relied solely on the

inconsistencies in Cataquet's statement in arguing that she was

lying, and had not suggested that she and the defendant were

involved in a relationship, or, indeed, had relied solely on

Mahady's lack of a motive to lie in the course of his duty. The

prosecutor properly urged the jury, several times, to use their

"common sense" in considering Cataquet's statement. Whatever

her motive for making it, the jury would not have drawn a

different conclusion about the reliability of Cataquet's

statement that she removed the gun from her purse (not found at

the scene or at booking) because it was too heavy, and placed it

in the rear seat console. Because it would have made no

difference in the result, the challenged statements in the

prosecutor's closing argument do not require a new trial.
 21

3. Conclusion. The conviction of possession of a firearm

without a license is affirmed. The conviction of possession of

a loaded firearm without a license is vacated and set aside, and

judgment shall enter for the defendant on that indictment.

So ordered.