Opinion
No. 16–P–11.
01-06-2017
COMMONWEALTH v. Antonio CAPUA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Antonio Capua, appeals from his convictions of discharging a firearm within 500 feet of a building in violation of G.L. c. 269, § 12E, malicious destruction of property in violation of G.L. c. 266, § 127, carrying a firearm without a license in violation of G.L. c. 269, § 10(a ), and unlawful possession of ammunition without a firearm identification (FID) card in violation of G.L. c. 269, § 10(h ). On appeal he challenges only the firearm carrying conviction, claiming that (1) the judge erred when he declined to instruct the jury that the Commonwealth bore the burden to prove the age of the firearm, and (2) it was the Commonwealth's burden to prove that the defendant was not licensed to carry a firearm. We affirm.
The defendant has withdrawn a third argument based on the jury instructions.
1. Antique firearm. The defendant maintains that where, as here, the firearm was not recovered, the failure to instruct the jury that the Commonwealth bore the burden of proving the age of the firearm violated due process. He further asserts that requiring him to produce some evidence that the firearm is an antique, see Commonwealth v. Jefferson, 461 Mass. 821, 828834 (2012), would require him to waive his right against self-incrimination.
We need not reach either question because the defendant has failed to preserve the issue of the age of the firearm for trial or appeal. To raise the defense that the firearm was an antique, the defendant must give notice in accordance with Mass.R.Crim.P. 14(b)(3), as appearing in 442 Mass. 1518 (2004). See Jefferson, supra at 833 (applying rule 14 procedures to exemption defense based on age of firearm).
Rule 14(b)(3) provides as follows:
"If a defendant intends to rely upon a defense based upon a license ... or exemption, the defendant shall, within the time provided for the filing of pretrial motions by [Mass.R.Crim.P.] 13(d)(2) [, as appearing in 442 Mass. 1516 (2004),] or at such later time as the judge may direct, notify the prosecutor in writing of such intention and file a copy of such notice with the clerk. If there is a failure to comply with the requirements of this subdivision, a license ... or exemption may not be relied upon as a defense. The judge may for cause shown allow a late filing of the notice or grant additional time to the parties to prepare for trial or make such other order as may be appropriate."
Here, the defendant did not notify the prosecutor or file a notice with the clerk. The defendant did not request an instruction placing the burden on the Commonwealth until the first day of trial. Even if such a request satisfied the notice requirement, a question we do not reach, the instruction was not requested until long after the time periods set forth in rules 13(d)(2) and 14(b)(3) had elapsed.
Passing on the defendant's argument that the Commonwealth can be required to produce evidence of the age of the firearm where the defendant has not, the facts of this case underscore the necessity of timely notice. One of the witnesses gave a description of the firearm, and shell casings were recovered. Because the Commonwealth had no notice of the defense, it had no opportunity to present more detailed eyewitness evidence or develop expert testimony.
The defendant relies on Federal cases where, after full factual development and trial, a Federal appellate court has ruled on the sufficiency of the evidence of an affirmative defense based on the age of a firearm. See, e.g., United States v. Lawrence, 349 F.3d 109, 123 (3d Cir.2003) (holding defendant's proffer insufficient to raise affirmative defense of antique firearm). Each case must be decided on its own record, and the failure to provide notice of the defense means we have no record to review. Moreover, Lawrence, and cases therein cited, place the burden of the affirmative defense on the defendant. Id. at 122 ("Every circuit court of appeals that has considered this issue has agreed that [the antique firearm exception] is an affirmative defense that must initially be raised by sufficient evidence to justify shifting a burden of proof to the government"). The case cited is inapposite.
The Supreme Judicial Court has held that "[f]ailure to provide notice under rule 14 ‘renders [a] claim [of license] unavailable as a defense.’ Commonwealth v. O'Connell, 438 Mass. 658, 665 (2003)." Commonwealth v. Humphries, 465 Mass. 762, 771 (2013). Similarly here, "[g]iven the absence of notice pursuant to rule 14, the Commonwealth had no burden to prove the [age of the firearm] beyond a reasonable doubt, see Commonwealth v. O'Connell, supra, and the defendant's failure to comply with the notice requirement is fatal to his claim."Humphries, supra. See generally Commonwealth v. Loadholt, 460 Mass. 723, 727 (2011).
2. License. The defendant contends that the judge erred when he declined the defendant's request that the jury be instructed that it was the Commonwealth's burden to prove that the defendant did not have a license to carry a firearm. As a general matter, this argument is foreclosed by Jefferson, 461 Mass. at 834–835, which upheld the constitutionality of the statutory presumption set forth in G.L. c. 278, § 7. See Commonwealth v. Jones, 372 Mass. 403, 406–409 (1977) ; Commonwealth v. Gouse, 461 Mass. 787, 802–808 (2012).
The presumption shifts the burden of production to the defendant to show that he is licensed to carry a firearm. Once such evidence is produced, the burden remains with the Commonwealth to prove beyond a reasonable doubt the absence of a license. See Gouse, 461 Mass. at 807.
The defendant attempts to distinguish Jefferson and Gouse on the basis that it is no longer difficult for the Commonwealth to prove the absence of a license, and it is therefore improper to shift the burden of production to the defendant. Specifically, the defendant relies on the existence of the Statewide Firearms Records Bureau to belie the concern expressed in Gouse, supra at 806, that obtaining firearms license data would be a "daunting task."
In Gouse the Supreme Judicial Court took note of the existence of a central data repository, but nonetheless concluded that carrying the initial burden of production as to the absence of a license would pose a significant burden on the Commonwealth. This holding reflects the reality that proving a negative is a difficult task. While "licensing authorities are required to record all issued licenses in their ‘books, forms or electronic files' and notify the Department of Criminal Justice Information Services (department) of such actions," it is still an "onerous burden" to require the Commonwealth to prove the defendant's lack of license. Gouse, 461 Mass. at 805–806. Shifting the burden of production to the Commonwealth "would require a prosecutor ... to review the department's records and the police departments in any towns or cities in which the defendant may have lived." Id. at 806. Such a task becomes even more difficult in cases where "the defendant may have assumed an alias or resided at different, or suspect locations, or where there is a potential delay in processing the records at either the local or State level." Ibid.
The Commonwealth further argues that the central registry may not be up to date, and that there is an exemption for a limited class of expired licenses for which there is no database. See G.L. c. 140, § 131(m) ; Commonwealth v. Farley, 64 Mass.App.Ct. 854, 857 (2005) ; Commonwealth v. Indrisano, 87 Mass.App.Ct. 709, 711–715 (2005). To the extent that any of the Commonwealth's arguments, and those of the defendant in response, raise a question of fact regarding the accuracy or completeness of registry records, the failure of the defendant to provide notice of the rule 14(b)(3) license defense is fatal to his claims on appeal. See Humphries, 465 Mass. at 771.
Placing the burden of production on the defendant is not onerous because "the existence of a license is within the defendant's firsthand knowledge, and the act of producing it would not require his testimony." Ibid. Therefore, "it is ‘entirely appropriate’ to require the defendant to produce some evidence of that license in order to raise it as an issue at trial." Ibid., quoting from Commonwealth v. Cabral, 443 Mass. 171, 181 (2005).
Judgments affirmed.