Opinion
21-P-683
08-24-2022
COMMONWEALTH v. DARRYL HODGES, JR.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was charged in the Boston Municipal Court with unlawfully carrying a firearm and unlawful possession of ammunition. At the jury-waived trial, he presented evidence supporting an affirmative defense that the weapon at issue was an antique and thus exempt from the prohibition in G. L. c. 2 69, § 10 (a.), against carrying a firearm without a license. See Commonwealth v. Jefferson, 461 Mass. 821, 829 (2012). The judge convicted the defendant on each charge and sentenced him to concurrent terms of eighteen months in the house of correction. Because the judge's explanation of his verdict indicates that he prematurely assessed the credibility of the defendant's evidence in support of the antique firearm defense, see Commonwealth v. Rang, 91 Mass.App.Ct. 182, 184-185 (2017), and that he therefore erroneously failed to hold the Commonwealth to its burden to disprove that affirmative defense, we vacate the defendant's conviction on the charge of unlicensed possession of a firearm.
Background.
Prior to trial, the defendant timely notified the Commonwealth of his intent to offer as an affirmative defense to the charge of unlicensed possession of a firearm that the gun he possessed was an antique, that is, "manufactured in or prior to the year 1899." G. L. c. 140, § 121. See Jefferson, 461 Mass. at 830. See also Mass. R. Crim. P. 14 (b) (3), as appearing in 442 Mass. 1518 (2004) (defendant relying on defense based on license or exemption must notify prosecutor within time for filing pretrial motions).
At trial, the Commonwealth called an expert witness, Detective Tyrone Camper, to prove that the gun at issue met the requirements of a "firearm" for the purposes of G. L. c. 269, § 10 (a.) . Camper testified that the gun was a Harrington & Richardson Victor model .38 Smith & Wesson caliber revolver, and that according to the "firearm reference table" he consulted as part of his research, the Victor model was manufactured between 1913 and 1936.
The defendant also offered a firearms expert, Greg Danas.Danas, too, testified that the gun was a Harrington & Richardson .38 caliber revolver, but disagreed with Camper's conclusion that it was a Victor model. Relying on his review of a publication that Danas testified was relied upon by others in his field, Danas opined that he was ninety-nine and one-half percent sure that the revolver was an American Double Action model, manufactured between 1883 and 1895.
The Commonwealth conceded that Danas was an expert "for purposes of testing firearms," but objected to his qualifications as "to dates or the history of certain brands and the types of guns." The judge permissibly reserved ruling on the objection. See Palandj ian v. Foster, 446 Mass. 100, 111 (2006) (judge not required to conduct voir dire to determine qualifications of expert witness). In closing, the prosecutor conceded to "Mr. Danas'[s] bona[ ]fides when it comes to identifying firearms." Where the judge explicitly stated that he "accepted [Danas's] testimony [as an expert]," subject to his own assessment of "how much weight to give it," we conclude that the judge qualified Danas as an expert in firearms identification, as well as in firearms testing. To the extent that the Commonwealth argues otherwise, we are not persuaded. No explanation has been provided as to why Danas's expertise did not extend to determining the range of possible manufacture dates by consulting secondary sources. That is precisely how the Commonwealth's expert determined the range of possible manufacture dates.
J.T. Vorisek, A Short Illustrated History of the Harrington & Richardson Arms Company (1871 to 1960) .
Prior to announcing his verdicts, the judge reviewed his reasoning, including his assessment of the affirmative defense. He first astutely summarized the analytical framework set out in Jefferson, and then explained how he applied the test:
We appreciate the judge's diligence but note that this explanation was not required.
A task complicated by the differing, but equally incorrect, interpretations given by counsel during each of their closing arguments.
"After hearing from all of the witnesses . . . by a preponderance [of the evidence], the Court does not find
that the defendant met his burden of producing evidence of the affirmative defense that the firearm was manufactured before 1900.
"Even finding the witness an expert in certain areas of his profession . . ., the Court, the factfinder, is ultimately the one who decides whether or not to credit a witness' testimony based on a number of factors. What the witness actually testifies to, as well as how the witness testifies and whether or not the Court finds the witness credible. In this case, the Court does not [find Danas credible]."
Following his conclusion that Danas was not a credible witness, the judge found that the Commonwealth had proven the essential elements of each of the offenses charged and sentenced the defendant. The defendant appeals from his conviction of possession of a firearm without a license to carry.
The defendant raises no issue concerning the conviction of unlawful possession of ammunition.
Discussion.
1. "Antique firearm."
Pursuant to G. L. c. 140, § 121, firearm licensing requirements in Massachusetts do not apply to "any firearm, rifle or shotgun manufactured in or prior to the year 1899." Thus, the fact that a firearm was manufactured before 1900 is an affirmative defense to a charge of unlicensed possession of that weapon. See Jefferson, 461 Mass. at 830.
"[T]he defendant bears the burden of producing evidence . . . that the firearm was manufactured before 1900." Jefferson, 461 Mass. at 834. This burden of production is light: "[g]enerally, 'if any view of the evidence would provide support for an affirmative defense,' a defendant is entitled to a jury instruction on that defense." Kang, 91 Mass.App.Ct. at 185, quoting Commonwealth v. Monico, 373 Mass. 298, 299 (1977). Further, and of critical importance to our analysis, "[i]n assessing the evidence, 'all reasonable inferences should be resolved in favor of the defendant, and, no matter how incredible his testimony, that testimony must be treated as true'" (emphasis added). Kang, supra, quoting Commonwealth v. Pike, 428 Mass. 393, 395 (1998). In other words, in determining whether the defendant has met his burden of production for the defense, the judge is not permitted to assess the credibility of the defendant's evidence.
If "any view of the evidence" supports the defense, see Kang, supra at 185, -- that is, if the defendant meets his burden of production -- the prosecution then assumes the burden "[of] prov[ing] beyond a reasonable doubt that the firearm was manufactured after 1899." Jefferson, 461 Mass. at 834. If it fails to do so, the defendant is entitled to an acquittal. We review the judge's decision that the defendant did not meet his burden of production for prejudicial error and, to the extent that we discern error, will reverse unless "the Commonwealth [has] show[n] 'with fair assurance' that the error did not 'substantially sway[]' the outcome of the case." Commonwealth v. Graham, 62 Mass.App.Ct. 642, 651 (2004), quoting Commonwealth v. Rosado, 428 Mass. 76, 79 (1998).
The record reflects that through Danas's testimony and his report, the latter of which was admitted into evidence without objection, the defendant introduced adequate evidence to meet his burden to produce evidence that the gun was an antique. Although the judge was obligated to credit the evidence the defendant provided at that stage, see Kang, 91 Mass.App.Ct. at 185, quoting Pike, 428 Mass. at 395, his explanatory statements show that he did not do so; instead, he rejected the affirmative defense at the burden of production stage based on his credibility determination. This was error. See Kang, supra. Because the judge's rejection of the defendant's antique firearm defense meant that the judge did not then shift the burden to disprove that defense to the Commonwealth, the effect of the judge's rejection was, as in Jefferson, to relieve the Commonwealth of the burden of proving that the gun was manufactured after 1899. See Jefferson, 461 Mass. at 831-832.
The Commonwealth did not object to Danas's description of his identification process or his belief that the characteristics of the gun were consistent with an "early model" "American Double Action," that it could not be a Victor model based on the serial number, and that it was "common knowledge" that the American Double Action was exclusively manufactured between 1883 and 1895.
Because we conclude that this error was ultimately reversible, we do not address the judge's articulation of the quantum of proof required to meet the burden of production.
Here, the Commonwealth's evidence that the firearm had been manufactured after 1899 was hardly compelling. Rather, it consisted of what Camper described as a "firearm reference table" that he printed out, stating that the Victor was manufactured "circa 1913 to 1936. " Camper testified that he did no further research as to the date of manufacture. He forthrightly admitted that "if the weapon was made prior to 1968, it sometimes is very difficult to ascertain when it was manufactured or how old it is." He testified that he "still can't say for any level of certainty if, in fact, it was manufactured between ... or any other time." Even if the trial judge discredited Danas's testimony regarding the date of manufacture completely, it far from certain that he would have found that Camper's testimony and report established beyond a reasonable doubt that the firearm was manufactured after 1899. In this circumstance, the judge's finding that the Commonwealth had proven that the gun otherwise "met the legal definition of a firearm" did not eliminate the prejudice occasioned by the premature rejection of the affirmative defense.
The table identifies itself as "Firearms Reference Table, Specialized Policing Services, Royal Canadian Mounted Police. Version 4.9-1, February 2018." No further explanation of this source material was provided at trial.
2. Sufficiency of the evidence.
"In evaluating the sufficiency of evidence, we ask whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Jefferson, 461 Mass. at 825-826, quoting Commonwealth v. Marshall, 434 Mass. 358, 361 (2001). Here, the defendant challenges only the sufficiency of the Commonwealth's evidence that the firearm was manufactured after 1899. Although the evidence in this regard was far from overwhelming, the trial judge could have credited Camper's report and found that the firearm was manufactured "circa 1913 to 1936." That Camper expressed some uncertainty went only "to the weight of the evidence." Commonwealth v. Dumas, 83 Mass.App.Ct. 536, 538 (2013), quoting Commonwealth v. Campbell, 60 Mass.App.Ct. 215, 222 (2003). "Any uncertainty in the [witness's] testimony did not render the Commonwealth's case legally insufficient." Dumas, supra.
3. Conclusion.
The judgment on the charge of unlicensed possession of a firearm is vacated, and the finding is set aside. The judgment for unlawful possession of ammunition is affirmed. The case is remanded for further proceedings consistent with this memorandum.
So ordered.
The panelists are listed in order of seniority.