Commonwealth v. Harris

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SJC-12607

COMMONWEALTH vs. BRIAN K. HARRIS.

Middlesex. November 5, 2018. - March 29, 2019.

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

Firearms. License. Constitutional Law, Right to bear arms,
Right to travel. Practice, Criminal, Instructions to jury,
Conduct of prosecutor.

Complaint received and sworn to in the Lowell Division of
the District Court Department on May 1, 2017.

A motion to dismiss was heard by Barbara Savitt Pearson,
J., and the cases were tried before James W. Coffey, J.

The Supreme Judicial Court granted an application for
direct appellate review.

Christopher DeMayo for the defendant.
Ashlee R. Mastrangelo, Assistant District Attorney (Melissa
Weisgold Johnsen, Assistant District Attorney, also present) for
the Commonwealth.
Maura Healey, Attorney General, & Thomas E. Bocian,
Assistant Attorney General, for the Attorney General, amicus
curiae, submitted a brief.

GAZIANO, J. This case concerns challenges to the firearms
 2

licensing statute by the defendant, a firearm owner licensed to

carry firearms in New Hampshire, who moved to the Commonwealth

and did not obtain a Massachusetts firearm license within the

sixty-day statutory time period for new residents.

Upon his return from a brief visit to New Hampshire, the

defendant, who was intoxicated, got into a confrontation with

his girlfriend in the early morning hours of September 12, 2015;

she fled the apartment and called police. Officers returned

with her to the apartment and spoke with the defendant, who

agreed that he owned a Glock 43 pistol, and told them that it

was in the trunk of his vehicle. Officers retrieved the weapon

for "safekeeping" and kept the defendant overnight at the police

station for his own safety after they determined he was too

intoxicated to drive.

The defendant was not arrested, but two criminal complaints

subsequently issued from the District Court charging him with

unlawful possession of a firearm in violation of G. L. c. 269,

§ 10 (h) (1); unlawful possession of ammunition in violation of

G. L. c. 269, § 10 (h) (1); and unlawful possession of a firearm

in violation of G. L. c. 269, § 10 (a).1 A District Court jury

1 Initially, the defendant also was charged with unlawful
possession of a large capacity weapon or large capacity feeding
device, in violation of G. L. c. 269, § 10 (m). The
Commonwealth did not proceed to trial on that charge. In
addition, the Commonwealth entered nolle prosequi with respect
to the charge of unlawful possession of a firearm in violation
 3

convicted the defendant on all charges. He appealed, and we

allowed his application for direct appellate review.

The defendant challenges the denial of his motion to

dismiss the complaint charging unlawful possession of a firearm

in violation of G. L. c. 269, § 10 (a), on constitutional

grounds.2 In the alternative, he requests a new trial on the

grounds of asserted errors in the jury instructions and

purported prejudice as a result of assertedly improper

questioning of a witness by the prosecutor. We affirm.3

Discussion. 1. Motion to dismiss. a. Factual

background. The limited facts before the judge were drawn

predominantly from a police report submitted as an exhibit to

the defendant's motion to dismiss.

In January 2015, Patty4 and the defendant started dating.

At the time, Patty was living in an apartment in Tewksbury. In

late May 2015, the defendant moved into Patty's apartment.

of G. L. c. 269, § 10 (h) (1). The conviction of unlawful
possession of ammunition in violation of G. L. c. 269,
§ 10 (h) (1), was placed on file, and the defendant was
sentenced to the mandatory minimum sentence of eighteen months'
incarceration for unlawful possession of a firearm in violation
of G. L. c. 269, § 10 (a).

2 The defendant did not appeal from his other convictions.

3 We acknowledge the amicus brief submitted by the Attorney
General.

4 A pseudonym.
 4

On June 4, 2015, Patty and the defendant removed some of

her belongings from the apartment to make room for the

defendant's belongings. That night, the defendant woke Patty by

yelling. He pushed her across the room and pinned her to a

wall. The defendant had found a photograph of Patty's former

boyfriend. The defendant said that he would "mutilate" the

former boyfriend "in front of [Patty] . . . or worse." He also

said that he would "assassinate anyone [he] want[ed] anytime

[he] want[ed]," and told Patty that he was "the most brutal

person [she] will meet." The defendant counted rounds of

ammunition and identified jackets he would wear at his victims'

funerals.

On September 11, 2015, the defendant and Patty were in the

Tewksbury apartment. They had a verbal argument about Patty's

work schedule, during which the defendant was verbally abusive.

He went to the bedroom closet, where he retrieved a weapon that

Patty identified as his "Glock." There was no indication that

the firearm was loaded, but Patty also saw ammunition.

The defendant removed articles of his clothing from the

closet; packed them, with the Glock, in a backpack; and left the

apartment. The defendant planned to "stay in New Hampshire for

the night." The defendant did not end up staying in New

Hampshire. Rather, at approximately 1 A.M. on September 12,

2015, "after drinking," he came home to Tewksbury. He was
 5

intoxicated. Patty was asleep and did not hear the defendant

enter the apartment.

The defendant "threw on the lights and pulled the blankets

off" Patty. He became enraged when she told him that "he was

drunk" and that she "wanted nothing to do with him in [that]

state." He began throwing items around and "trashing the

apartment," while yelling at Patty and using obscene language.

Thinking about the Glock and the defendant's earlier

actions, Patty became fearful for her safety. In an attempt to

calm the defendant, Patty called his father, but this resulted

in the defendant becoming yet more enraged. Patty grabbed her

dog and keys, and called police as she fled the apartment; the

defendant ran after her. After Patty got into her vehicle, the

defendant "banged on" its exterior. Patty drove to a

prearranged location, where she waited for the police.

At approximately 1:30 A.M., multiple uniformed officers

responded in marked cruisers. Patty informed them that she was

unsure if the defendant "had the Glock in [his] vehicle or in

his possession," and consented to a protective sweep of the

apartment.

The officers formed a contact team and entered the

apartment building. An officer used a cellular telephone to

call the defendant, and requested that he step outside. The

defendant complied. He said that he "had gone out drinking"
 6

before "coming home" to Tewksbury. He also acknowledged that he

did not have a Massachusetts firearm license. Instead, he

produced a New Hampshire firearm license. The defendant said

that he had a Glock 43 (a nine millimeter pistol) in the trunk

of his vehicle. He consented to a search of the vehicle, during

which officers located the firearm and ammunition.

At the scene, Patty requested an emergency protection order

under G. L. c. 209A. A judge issued the order, which was served

on the defendant. Pursuant to the order, officers confiscated

the defendant's firearm and ammunition for safe keeping. While

they were doing so, the defendant commented that he "had

connections" and would regain possession of the Glock. He also

said that the protection order "won't stick." The defendant was

not arrested. Rather, he was placed in protective custody when,

after he failed multiple sobriety tests, officers determined

that he would be unable to drive safely from the scene.

As a result of the restraining order, the Atkinson, New

Hampshire, police chief revoked the defendant's New Hampshire

firearm license.

Criminal complaints against the defendant ultimately were

filed; he moved to dismiss the complaints. At a hearing on the

motion, the defendant asserted an affirmative defense predicated

on his by-then-revoked New Hampshire firearm license. In

addition, he maintained that he was a New Hampshire resident who
 7

had been traveling "in or through the Commonwealth" at the time

of the domestic dispute. The judge noted, however, that the

defendant's residency status was a disputed issue of fact that

could not be decided on a motion to dismiss. The judge denied

the defendant's motion and found probable cause to believe the

defendant was a resident of the Commonwealth and had been living

with Patty in Tewksbury while unlawfully possessing a firearm.

We discern no error in the judge's decision.

b. Massachusetts firearm license. In his motion to

dismiss, the defendant raised both facial and as-applied

challenges to the constitutionality of G. L. c. 269, § 10 (a).

On appeal, he pursues only a facial challenge, and that only

summarily.5

"A facial challenge is an attack on a statute itself as

opposed to a particular application." Los Angeles v. Patel, 135

S. Ct. 2443, 2449 (2015). "Facial challenges are disfavored"

5 Often, as here, those who do not apply for a Massachusetts
firearm license are not entitled to assert as-applied challenges
to the licensing laws because they cannot demonstrate that they
sought, and were denied, a Massachusetts firearm license. See
Commonwealth v. Johnson, 461 Mass. 44, 58 (2011). The defendant
gave no indication that he had applied for a Massachusetts
firearm license. Nor has he argued that applying for a license
would have been futile. See Hamilton v. Pallozzi, 848 F.3d 614,
620-621 (4th Cir.), cert. denied, 138 S. Ct. 500 (2017).
Therefore, he would not have been able to proceed on an as-
applied challenge. See Commonwealth v. Cassidy, 479 Mass. 527,
539 n.10, cert. denied, 139 S. Ct. 276 (2018); Commonwealth v.
Allen, 474 Mass. 162, 174 (2016); Commonwealth v. Powell, 459
Mass. 572, 590 (2011), cert. denied, 565 U.S. 1262 (2012).
 8

because they "run contrary to the fundamental principle of

judicial restraint" and "threaten to short circuit the

democratic process by preventing laws embodying the will of the

people from being implemented in a manner consistent with the

Constitution" (citation omitted). See Washington State Grange

v. Washington State Republican Party, 552 U.S. 442, 450-451

(2008). See also Hightower v. Boston, 693 F.3d 61, 76-77 (1st

Cir. 2012). A facial challenge fails when the statute at issue

has a "plainly legitimate sweep" (citation omitted). Washington

State Grange, supra at 449.

General Laws c. 269, § 10 (a), provides for punishment of

any individual who, "except as provided or exempted by statute,

knowingly has in his possession; or knowingly has under his

control in a vehicle; a firearm, loaded or unloaded."

The statute defines a number of categories of persons who

are "exempted by statute" from punishment under G. L. c. 269,

§ 10 (a). Exemptions apply to new residents of the

Commonwealth, see G. L. c. 140, § 129C (j); holders of a

Massachusetts firearm license, see G. L. c. 140, §§ 131 (a),

(b), 131F; holders of certain firearm licenses issued by other

jurisdictions, see G. L. c. 140, §§ 129C (u), 131G; those with

firearm identification (FID) cards who possess firearms in their

residences or places of business, see G. L. c. 269,

§ 10 (a) (1); G. L. c. 140, § 129C; and certain nonresidents
 9

traveling in or through the Commonwealth, see G. L. c. 140,

§§ 129C (h), 131F, 131G. In addition, exemptions exist for

specific types of firearms, certain persons, and specified uses.6

The defendant contends that the statutory exemption for an

individual who possesses a Massachusetts firearm license, see

G. L. c. 140, §§ 131 (a), (b), 131F; G. L. c. 269, § 10 (a) (2),

(3), on its face violates Federal due process protections and

rights under the Second Amendment to the United States

Constitution, because, to invoke the exemption, a defendant must

proffer evidence of a Massachusetts firearm license. The

defendant argues that the initial burden of production as to a

license, or lack thereof, should rest on the Commonwealth

because "lack of a license" is an element of G. L. c. 269,

§ 10 (a), rather than an affirmative defense to the offense. On

this basis, the defendant asks this court to reverse the denial

of his motion to dismiss and, accordingly, his conviction under

G. L. c. 269, § 10 (a).

This court previously has rejected similar arguments. We

have long held that possession of a Massachusetts firearm

license is an affirmative defense to G. L. c. 269, § 10 (a), and

not an element of that offense. See Commonwealth v. Allen, 474

Mass. 162, 174 (2016); Commonwealth v. Gouse, 461 Mass. 787,

6 See G. L. c. 140, §§ 121, 129C (a)-(u), 131, 131F, 131G;
G. L. c. 269, § 10 (a) (1)-(4).
 10

803-805 (2012); Commonwealth v. Powell, 459 Mass. 572, 582

(2011), cert. denied, 565 U.S. 1262 (2012). Because it is an

affirmative defense, a defendant has the initial burden of

production as to possession of a Massachusetts firearm license.

See Gouse, supra at 802. "If such evidence is presented,

however, the burden is on the prosecution to persuade the trier

of facts beyond a reasonable doubt that the defense does not

exist" (citation omitted). Id. See G. L. c. 278, § 7.7 This

system comports with due process, Commonwealth v. Jefferson, 461

Mass. 821, 834-835 (2012), and the Second Amendment. See

Commonwealth v. Eberhart, 461 Mass. 809, 813 (2012); Gouse,

supra at 801; Commonwealth v. Loadholt, 460 Mass. 723, 727

(2011).

Moreover, the defendant's argument cannot redress his

grievance, i.e., the denial of his motion to dismiss. As noted,

he argues that "the prosecution must prove non-licensure" as an

element of G. L. c. 269, § 10 (a). It was undisputed, however,

7 In relevant part, G. L. c. 278, § 7, states that "[a]
defendant in a criminal prosecution, relying for his
justification upon a license . . . shall prove the same; and,
until so proved, the presumption shall be that he is not so
authorized." This court has said that "[a]lthough the language
of § 7 suggests that the defendant must shoulder the entire
burden of proof (i.e., the burden of production and the burden
of persuasion) as discussed, we have interpreted it only to
impose the burden of production on the defendant, maintaining
the ultimate burden of disproving a properly raised affirmative
defense on the prosecution." Commonwealth v. Gouse, 461 Mass.
787, 807 (2012).
 11

that the defendant lacked a Massachusetts firearm license. He

told police that he did not have a Massachusetts firearm

license, and agreed in his memorandum in support of his motion

to dismiss, as well as at the hearing on that motion, that he

lacked such a license. In his appellate brief, the defendant

asserts that he "did not have a Massachusetts firearms license."

Therefore, even if licensure were an element of G. L. c. 269,

§ 10 (a), there was no doubt that the defendant lacked a

Massachusetts firearm license. The judge did not err in denying

the motion to dismiss.

c. Traveling in or through the Commonwealth. General Laws

c. 140, § 129C (h), establishes a statutory exemption that may

be raised as an affirmative defense to an alleged violation of

G. L. c. 269, § 10. See G. L. c. 269, § 10 (a) (4). Under

G. L. c. 140, § 129C (h), nonresidents may travel "in or through

the commonwealth" while in "[p]ossession of rifles and shotguns

and ammunition," provided that the "rifles or shotguns are

unloaded and enclosed in a case."

In his memorandum in support of his motion to dismiss, and

at the motion hearing, the defendant argued that he was a

resident of New Hampshire who "fit[] precisely within the class

of exempted persons . . . set forth" in G. L. c. 140,

§ 129C (h). The judge determined, however, that there was no

probable cause to believe that the defendant was traveling in or
 12

through the Commonwealth. Rather, she found probable cause to

believe that the defendant was living in the Commonwealth with

his girlfriend.8

On appeal, the defendant adopts a new and different

argument. He contends that G. L. c. 269, § 10 (a), and G. L.

c. 140, § 129C (h), are facially unconstitutional because, taken

together, they violate the right to interstate travel, the right

to equal protection, and rights guaranteed by the Second

Amendment, as they prohibit a nonresident from traveling in or

through the Commonwealth with a handgun, unless the nonresident

first obtains a Massachusetts firearm license. Therefore, the

defendant argues, the judge erred in denying the motion to

dismiss.

The defendant's arguments are unavailing. On appeal, he

does not explain how G. L. c. 269, § 10 (a), and G. L. c. 140,

§ 129C (h), act together to prohibit nonresidents from traveling

with handguns in or through the Commonwealth. As indicated, he

provided no such explanation below. Nor does he address on

appeal the language of G. L. c. 140, § 131G, under which a

nonresident of Massachusetts, who is a resident of the United

8 As discussed, G. L. c. 140, § 129C (h), exempts
nonresidents who are traveling in or through the Commonwealth
with rifles and shotguns. There is no indication that the
defendant ever possessed a rifle or a shotgun in the
Commonwealth. Accordingly, G. L. c. 140, § 129C (h), is
inapplicable to these facts.
 13

States, and who possesses a firearm permit or license issued by

a jurisdiction that prohibits licensure of felons and those

convicted of certain narcotics offenses, "may carry a pistol or

revolver in or through" Massachusetts for a number of purposes.

In any event, because the defendant did not raise this argument

below, it is waived. See Mass. R. Crim. P. 13 (a) (2), as

appearing in 442 Mass. 1516 (2004). See also Commonwealth v.

Alexis, 481 Mass. 91, 101 (2018); Commonwealth v. Bettencourt,

447 Mass. 631, 633 (2006).

d. New Hampshire firearm license. The defendant argues

that, at the time police took the Glock for "safekeeping," he

possessed a valid New Hampshire firearm license that allowed him

to carry firearms in the Commonwealth notwithstanding any

Massachusetts firearms provisions. The United States Supreme

Court has said, however, that the full faith and credit clause9

"does not compel a state to substitute the statutes of other

states for its own statutes dealing with a subject matter

concerning which it is competent to legislate" (quotation and

citation omitted). Baker v. General Motors Corp., 522 U.S. 222,

232 (1998). In our Federal system, "each state is permitted to

9 Article IV, § 1, of the United States Constitution states,
"Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of every other
State. And the Congress may by general Laws prescribe the
Manner in which such Acts, Records and Proceedings shall be
proved, and the Effect thereof."
 14

create its own laws so long as they do not run afoul of the

Constitution, federal laws, and treaties." Hamilton v.

Pallozzi, 848 F.3d 614, 628 (4th Cir.), cert. denied, 138 S. Ct.

500 (2017). See art. VI, cl. 2, of the United States

Constitution.

At the time police discovered the defendant's firearm, a

New Hampshire statute allowed a New Hampshire licensee to "carry

a loaded pistol or revolver in [that] state."10 See N.H. Rev.

Stat. Ann. § 159:6. Although the Commonwealth afforded

exceptions to nonresidents who possessed certain firearm and

hunting licenses issued by other jurisdictions, see G. L.

c. 140, §§ 129C (f), 131G, and allowed nonresidents to obtain

temporary firearm licenses, see G. L. c. 140, § 131F, no statute

in the Commonwealth granted full reciprocity to holders of New

Hampshire firearm licenses. Similarly, when New Hampshire's

licensing requirement was in effect, the statute did not provide

reciprocity to holders of Massachusetts firearm licenses. See

N.H. Rev. Stat. Ann. § 159:6-d.

The privilege to conceal and carry a loaded pistol or

revolver that was conferred by New Hampshire's firearm licensing

10In 2017, New Hampshire repealed its licensure
requirement, see 2017 N.H. Laws § 1:1, effective Feb. 22, 2017;
this allowed its residents to conceal and carry loaded pistols
and revolvers in New Hampshire without a license. See N.H. Rev.
Stat. Ann. § 159:6.III.
 15

statute, N.H. Rev. Stat. Ann. § 159:6, is conferred in the

Commonwealth through a "Class A" license, the issuance of which

is subject to limitations for certain classes of persons, such

as convicted felons, substance abusers, and the mentally ill.

See G. L. c. 140, § 131 (a), (d).11 See, e.g., Chief of Police

of Worcester v. Holden, 470 Mass. 845, 853 (2015); Jefferson,

461 Mass. at 830; Loadholt, 460 Mass. at 726 & n.6. A New

Hampshire firearm license was available to any "suitable

person." See N.H. Rev. Stat. Ann. § 159:6(I)(a).

Ultimately, this matter concerns different jurisdictions

making differing determinations about firearm licensing and

regulation. See Hamilton, 848 F.3d at 628 & n.15. The

Commonwealth is not required to substitute its statutes for

those of New Hampshire. See Pacific Employers Ins. Co. v.

Industrial Acc. Comm'n of Cal., 306 U.S. 493, 502 (1939) ("the

conclusion is unavoidable that the full faith and credit clause

does not require one state to substitute for its own statute,

applicable to persons and events within it, the conflicting

11We note that Federal law contemplates similar
restrictions on the possession and transport of firearms. See
18 U.S.C. § 922(g) ("It shall be unlawful for" felons,
fugitives, users or addicts of controlled substances, those with
mental illness, aliens, dishonorably discharged service members,
those subject to protection orders, and those convicted of
domestic violence to "possess" or "transport" interstate "any
firearm or ammunition"). See also District of Columbia v.
Heller, 554 U.S. 570, 626-627 (2008).
 16

statute of another state").

The judge who denied the defendant's motion to dismiss

found probable cause to believe that the defendant had been

living in Massachusetts when police became aware of his firearm.

The facts available indicated that, at that point, the defendant

had been a resident of Massachusetts for several months.

Under Massachusetts requirements, a "new resident moving

into the commonwealth, with respect to any firearm . . . then in

his [or her] possession," may lawfully possess such firearms

"for [sixty] days," G. L. c. 140, § 129C (j), after which he or

she must obtain a Massachusetts firearm license in order to

possess the firearm outside the home or place of business.12 See

12In Commonwealth v. Wood, 398 Mass. 135, 137 (1986), this
court addressed whether G. L. c. 140, § 129C (j), served as an
exemption to the version of G. L. c. 269, § 10 (a), that was
then in effect. At that time, G. L. c. 269, § 10 (a), punished
those who "carrie[d]" firearms, and G. L. c. 140, § 129C (j),
exempted those who "possesse[d]" firearms. See Wood, supra; St.
1990, c. 511, §§ 2, 3. Therefore, this court concluded that
G. L. c. 140, § 129C (j), did not serve as an exemption to G. L.
c. 269, § 10 (a). See Wood, supra. General Laws c. 269,
§ 10 (a), was amended in 1990, however, to prohibit the unlawful
"possession" of a firearm. See St. 1990, c. 511, §§ 2, 3. The
purpose of the amendment was to "regulate the possession of
firearms . . . for the immediate preservation of the public
welfare." See St. 1990, c. 511. The amendment remains
applicable today. See G. L. c. 269, § 10 (a). Therefore, G. L.
c. 140, § 129C (j), which applies to the possession of firearms,
now serves as an exemption to G. L. c. 269, § 10 (a), which
prohibits the unlawful possession of firearms. See Commonwealth
v. Cornelius, 78 Mass. App. Ct. 413, 419 (2010) ("by satisfying
the exception set out in G. L. c. 140, § 129C[j], new
residents . . . satisfy the firearm exemption set out in G. L.
c. 269, § 10[a][4], for a limited period of time, without also
 17

G. L. c. 140, § 131 (a), (b); G. L. c. 269, § 10 (a) (2). The

defendant could have applied for a Massachusetts firearm license

within the sixty-day period following his arrival in the

Commonwealth, but during more than three months of residency, he

chose not to do so. There was no error in the denial of the

motion to dismiss.

2. New trial. In the alternative, the defendant seeks a

new trial on the grounds of purportedly improper jury

instructions13 and the prosecutor's questioning of one of the

witnesses.

a. Jury instructions. The defendant argues that a new

trial is required because the judge denied his request for an

instruction on 18 U.S.C. § 926A, as well as because the judge

assertedly did not instruct on G. L. c. 269, § 10 (a) (1). This

latter instruction was not requested at trial, but in fact was

complying with the provisions of G. L. c. 140, § 131G").

13The defendant also contends that the Commonwealth
"misconstrued" the firearm-licensing statute during closing
argument by addressing a statutory exemption that was available
to a nonresident "passing through [the Commonwealth] with his
firearm." The defendant did not object at trial. Thus, we
review for a substantial risk of a miscarriage of justice. See
Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011).
General Laws c. 140, §§ 131F and 131G, allow nonresidents of the
Commonwealth to travel in or through Massachusetts with a pistol
or revolver, provided several conditions are met. The judge
instructed the jury as to both G. L. c. 140, §§ 131F and 131G.
The Commonwealth's closing argument did not misconstrue the
applicable statutory provisions. Therefore, the defendant's
argument is without merit.
 18

given by the judge. The defendant contends further that the

instructions deprived him of an affirmative defense under G. L.

c. 140, § 129C (j), and potentially confused the jury. The

defendant did not object to the instructions at trial.

We evaluate the instructions provided to a jury "as a

whole, looking for the interpretation a reasonable juror would

place on the judge's words," and not in a hypermechanical manner

(citation omitted). See Commonwealth v. Vargas, 475 Mass. 338,

349 (2016).

i. Interstate transportation of firearms. Because the

defendant requested an instruction with respect to

18 U.S.C. § 926A, and objected when the request was denied, we

review for prejudicial error.14 See Commonwealth v. Okoro, 471

Mass. 51, 67 (2015). Under that analysis, we determine, first,

whether there was error and, if so, whether the error was

prejudicial. See Commonwealth v. Cruz, 445 Mass. 589, 591

(2005). An error is not prejudicial when we can say with

confidence that it "did not influence the jury, or had but very

slight effect" (citation omitted). Commonwealth v. Brown, 456

Mass. 708, 725 (2010). On the other hand, if we are unable to

say "with fair assurance," and "after pondering all that

14The defendant argues also that 18 U.S.C. § 926A preempts
the Massachusetts firearms statutes. As the judge properly
denied the request for an instruction on 18 U.S.C. § 926A, we
need not reach this issue. See 18 U.S.C. § 927.
 19

happened without stripping the erroneous action from the whole,

that the judgment was not substantially swayed by the error,"

then the error was prejudicial (citation omitted). See Allen,

474 Mass. at 168.

Pursuant to 18 U.S.C. § 926A, any person who is not

prohibited under Federal law from transporting, shipping, or

receiving a firearm

"shall be entitled to transport a firearm for any
lawful purpose from any place where he may lawfully
possess and carry such firearm to any other place
where he may lawfully possess and carry such firearm
if, during such transportation the firearm is
unloaded, and neither the firearm nor any ammunition
being transported is readily accessible or is directly
accessible from the passenger compartment of such
transporting vehicle."

The defendant maintains that 18 U.S.C. § 926A is applicable

here because, at the time his firearm was discovered by

Tewksbury police, he was a nonresident "in the midst of a trip"

from Londonderry, New Hampshire, to Atkinson, New Hampshire, "by

way of Tewksbury." The defendant points to no authority

supporting his interpretation of 18 U.S.C. § 926A, nor are we

aware of any.

This provision consistently has been construed to "allow[]

a person to transport a firearm and ammunition from one state

through a second state to a third state, without regard to the

second state's gun laws, provided that the traveler is licensed

to carry a firearm in both the state of origin and the state of
 20

destination and that the firearm is not readily accessible

during the transportation." Revell v. Port Auth. of N.Y. &

N.J., 598 F.3d 128, 132 (3d Cir. 2010), cert. denied, 562 U.S.

1178 (2011). See 18 U.S.C. § 926A; Torraco v. Port Auth. of

N.Y. & N.J., 615 F.3d 129, 132 (2d Cir. 2010) (18 U.S.C. § 926A

"allows individuals to transport firearms from one state in

which they are legal, through another state in which they are

illegal, to a third state in which they are legal, provided that

several conditions are met"). See also Bieder v. United States,

662 A.2d 185, 188-189 (D.C. 1995) (where possession of firearm

is lawful in Virginia and New York, 18 U.S.C. § 926A warrants

instruction for defendant arrested in District of Columbia while

driving from Virginia to New York).

We decline to depart from the accepted understanding of

18 U.S.C. § 926A. Therefore, we consider whether an instruction

concerning that statute was warranted given the facts at trial.

From the time he moved to Tewksbury in late May 2015, until

September 12, 2015, the defendant possessed at least one handgun

in the Tewksbury apartment. As a new resident of the

Commonwealth, he was afforded sixty days in which to obtain a

Massachusetts FID card or firearm license. See G. L. c. 140,

§ 129C (j); G. L. c. 269, § 10 (a) (4). There is no indication

that the defendant did so, or attempted to do so, during this

period.
 21

On September 11, 2015, the defendant placed a handgun in a

backpack and transported it from Tewksbury to a shooting range

in New Hampshire. He spent several hours at the range, and

thereafter "had a couple beers." After several hours of

drinking beer, the defendant drove to Londonderry, New

Hampshire, to deposit multiple firearms in a storage unit. He

then drove to Manchester, New Hampshire, where he dropped off a

friend. He returned to Tewksbury between 11:30 P.M. on

September 11 and 1 A.M. on September 12. Officers responded to

the scene at approximately 1:30 A.M. on September 12 and later

discovered the Glock in the trunk of the defendant's vehicle.

In sum, on the evening of September 11, 2015, the defendant

began his journey in the Commonwealth, he sojourned in New

Hampshire, and he returned to Massachusetts sometime late in the

evening on September 11 or in the early morning hours of

September 12. He did not transport a firearm "from one state

through a second state to a third state." Revell, 598 F.3d at

132. See Torraco, 615 F.3d at 132. Moreover, because he had

not obtained a Massachusetts FID card or firearm license within

sixty days of moving to the Commonwealth, he was unable lawfully

to possess firearms in the Commonwealth, and therefore was

unable to transport firearms lawfully into or from the

Commonwealth pursuant to 18 U.S.C. § 926A. See Torraco, supra

at 138 (because petitioners "began the pertinent legs of their
 22

travels in New Jersey," under 18 U.S.C. § 926A, "possession and

carriage of the firearms in that state needed to be lawful" in

order for that statute to apply).

There was no error in the trial judge's decision that an

instruction concerning the provisions of 18 U.S.C. § 926A was

not warranted.

ii. Residence or place of business. The defendant argues

for the first time on appeal that the judge erred in not

instructing the jury to consider whether he had possessed the

firearm outside his residence or place of business. The

defendant did not request the instruction at trial, nor did he

object. Therefore, we must determine whether there was a

substantial risk of a miscarriage of justice. See Jefferson,

461 Mass. at 836. We conclude there was not.

General Laws c. 269, § 10 (a) (1), establishes a statutory

exemption that allows an individual who has a Massachusetts FID

card lawfully to possess a firearm in his or her residence or

place of business. See Powell, 459 Mass. at 587-588 ("FID card

allows the holder to own or possess a firearm within the

holder's residence or place of business"). See also

Commonwealth v. McGowan, 464 Mass. 232, 240-241 (2013). Thus,

G. L. c. 269, § 10 (a) (1), is an affirmative defense. See,

e.g., Commonwealth v. Anderson, 445 Mass. 195, 214 (2005).

Although the defendant did not raise this defense, the judge, as
 23

was proper, nonetheless instructed the jury that G. L. c. 269,

§ 10 (a) (1), "exempts a defendant . . . who was present in or

on his or her residence or place of business." The defendant is

mistaken in his argument before this court that the judge did

not instruct on this exemption.

In any event, the firearm was recovered from the

defendant's vehicle, and, at trial, he argued consistently that

he had no residence or place of business in the Commonwealth.

The defendant, therefore, provided little basis for the judge to

have instructed on G. L. c. 269, § 10 (a) (1). Moreover, there

was no indication that the defendant had applied for or obtained

an FID card. Absent such a card, the defendant could not have

been acquitted under G. L. c. 269, § 10 (a) (1). He suffered no

prejudice.

iii. Sixty-day grace period and temporary licenses. The

defendant argues that the jury instruction with respect to G. L.

c. 140, § 129C (j), deprived him of a "potential" defense under

that provision. In addition, he argues that a portion of the

instruction might have confused the jury concerning temporary

Massachusetts firearm licenses that are issued under G. L.

c. 140, § 131F. Because the defendant did not object at trial,

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

See Jefferson, 461 Mass. at 836.

Because the defendant did not have a Massachusetts firearm
 24

license, the central issue at trial was whether he was living in

Massachusetts on September 12, 2015, and, if so, for how long

prior to that date. The Commonwealth's theory was that the

defendant lived in Massachusetts from late May 2015 through

September 12, 2015, a period of more than sixty days. The

defendant maintained that he had never lived in Massachusetts.

A number of provisions of the Massachusetts firearm

licensing scheme create exceptions for new residents and

nonresidents. The judge properly instructed the jury on them.

As discussed, for example, G. L. c. 140, § 129C (j),

provides a sixty-day period during which a new resident of the

Commonwealth who arrives in Massachusetts with firearms may

possess those firearms without a Massachusetts FID card or

firearm license. See G. L. c. 269, § 10 (a) (4). In his

charge, the judge explained that G. L. c. 140, § 129C (j),

exempted any "new resident moving into the Commonwealth with

respect to a firearm, rifle, shotgun, or ammunition then in his

possession for [sixty] days after" moving to "the Commonwealth."

Because G. L. c. 269 does not define the term "resident,"

the judge instructed that a defendant "can only have one

domicile under the law," but "can have lots of residences[,] so

we use the [term] residence in its common everyday meaning and

understanding that a person may have more than one residence at

any one given time." The judge instructed further that, for the
 25

purposes of G. L. c. 140, § 129C (j), the Commonwealth had the

burden of proving beyond a reasonable doubt that the defendant

had been a Massachusetts resident.

While the defendant did not request an instruction on G. L.

c. 140, § 129C (j), the evidence suggested that he was a new

resident of the Commonwealth. Accordingly, the judge properly

instructed the jury on that provision. See Commonwealth v.

Gonzalez, 465 Mass. 672, 682 (2013). Relying on these

instructions, had the jury found that the defendant was a

resident of the Commonwealth on September 12, 2015, but that he

had resided in Massachusetts for fewer than sixty days, they

would have been required to acquit him.

In addition, the judge instructed that a nonresident who

obtains a Massachusetts temporary firearm license pursuant to

G. L. c. 140, § 131F, lawfully may carry firearms in the

Commonwealth for specific purposes. The judge also explained

that, under G. L. c. 140, § 131G, a nonresident without a

Massachusetts firearm license may carry

"a pistol or revolver in or through the Commonwealth
for the purpose of taking part in a pistol or revolver
competition or attending any meeting or exhibition of
any organized group of firearm collectors or for the
purpose of hunting provided that such person is a
resident of the United States and has a permit or
license to carry firearms issued under the laws of any
state, district, or territory which has licensing
requirements which prohibit the issuance of permits or
licenses to persons who have been convicted of a
felony or who have been convicted of unlawful use or
 26

possession or sale of narcotics or harmful drugs."

Given these instructions, had the jury found that the

defendant was a nonresident when police discovered his firearm,

and that he had acquired a temporary Massachusetts firearm

license under G. L. c. 140, § 131F, or that he was traveling in

or through Massachusetts to participate in a firearm

competition, a firearm collectors' meeting or exhibition, or to

hunt, they would have been obligated to acquit him.

In sum, the instructions encompassed exemptions under which

the defendant could have been acquitted regardless of whether

the jury found that he was a resident, as the Commonwealth

asserted, or a nonresident, as he maintained. The instructions

accurately informed the jury of the elements of the offense, as

well as the affirmative defenses. They did not deprive the

defendant of an affirmative defense under G. L. c. 140,

§ 129C (j), and were not likely to confuse the jury with respect

to the exemption for nonresidents who possess Massachusetts

temporary firearm licenses. See G. L. c. 140, § 131F. We

conclude that the instructions did not create a substantial risk

of a miscarriage of justice.

b. Asserted prosecutorial misconduct. The defendant

contends that the Commonwealth caused him prejudice by asking

Patty whether he "had something against Massachusetts." Because

the defendant did not object, we review for a substantial risk
 27

of a miscarriage of justice. See Commonwealth v. Ferreira, 460

Mass. 781, 788 (2011).

During cross-examination, defense counsel asked Patty

whether the defendant told "just about everybody that he had no

intention of ever living in Massachusetts," to which Patty

responded, "I can't answer that in a yes or no without

explanation." On redirect, the Commonwealth probed the same

issue; the prosecutor asked whether the defendant had told Patty

that he "never wanted to live in Massachusetts," but nonetheless

had moved into the Tewksbury apartment with her. Patty answered

in the affirmative. The prosecutor then clarified, "So he had

something against Massachusetts . . . [b]ut he found himself

here anyway?" To which Patty responded, "Correct."

Evidence "that otherwise may be inadmissible may become

admissible where the defendant opens the door to its admission."

Commonwealth v. Quinn, 469 Mass. 641, 732-733 (2014). Here,

"defense counsel invited a fuller explanation" of Patty's

testimony, see Commonwealth v. McCowen, 458 Mass. 461, 479

(2010), and the prosecutor was permitted to respond. See id.

The defendant's dislike of Massachusetts was a cornerstone

of his defense strategy. On direct examination of the

defendant's uncle, counsel asked, "[H]as [the defendant] ever

expressed any statement about living in Massachusetts?" The

uncle responded, "He dislikes Massachusetts." Later, the
 28

defendant himself testified, "I'm not good with [Massachusetts]

gun laws. . . . I just don't like -- I don't like it down here

basically." Given this, the question that the prosecutor posed

to Patty did not create a substantial risk of a miscarriage of

justice.

Judgment affirmed.