Opinion
18-P-303
06-11-2020
COMMONWEALTH v. EDWARD FLEURY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant appeals from his convictions by a Superior Court jury of twelve counts of improperly storing a large capacity weapon, in violation of G. L. c. 140, § 131L (a). We affirm.
Background. On September 11, 2014, members of the State Police and local police departments located within Hampshire County executed a search warrant at the defendant's residence in Pelham. The warrant authorized the seizure of one handgun; however, the police found 240 firearms throughout the home during the course of the search. On December 16, 2014, the defendant was indicted by a grand jury and charged with multiple firearm offenses, including one count of improper storage of a handgun, in violation of § 131L (a), and twenty-one counts of improper storage of a large capacity weapon, also in violation of § 131L (a) (2014 indictment). In a separate indictment returned on September 15, 2015, the defendant was charged with five additional counts of improperly storing a large capacity weapon based on weapons retrieved from his attic, in violation of G. L. c. 140, §§ 131L (a) and (b) (2015 indictment).
Although the indictments state on a preprinted form that they were returned "[o]n this 15th day of September, 2014," the docket sheet shows that they were returned on that date in 2015.
Before trial on either indictment, the defendant filed a motion to dismiss the improper firearm storage charges in both the 2014 and 2015 indictments on the ground that the definition of "large capacity weapon" set forth at G. L. c. 140, § 121, is unduly vague, rendering § 131L unconstitutional on its face and as applied to him. A Superior Court judge held an evidentiary hearing on the motion to dismiss and denied the motion in a well-reasoned written decision. The judge concluded that the defendant's facial challenge to § 131L "must fail" for lack of standing, because the statute does not implicate rights under the First or Second Amendments to the United States Constitution. He further concluded that § 131L was not unconstitutional as applied to the defendant because the definition of "large capacity weapon" is not unduly vague.
The assault by means of a dangerous weapon (handgun) charge in the 2014 indictment, and the five improper firearm storage charges alleged in the 2015 indictment, proceeded to trial first before a jury and a different judge. The defenses at trial were that (1) he was entrapped by the police to leave his home without securing his firearms when they called him to the police station so that he would not be there while they executed the search warrant, and (2) the Commonwealth's evidence regarding the five firearms retrieved from the attic was insufficient to establish that the firearms were improperly stored, because the officer who located and retrieved those firearms did not testify, and thus, the Commonwealth offered no evidence as to the manner in which those firearms were stored. The trial resulted in acquittals on all of the charges. Because he had been acquitted of improperly storing the five firearms removed from his attic that were the subject of the 2015 indictment, the defendant moved to dismiss the twenty-two remaining counts of the 2014 indictment, alleging improper storage of different firearms, on the grounds of double jeopardy and collateral estoppel. The same judge who had ruled on the motion to dismiss the indictments succinctly denied that motion in a margin endorsement that was limited to the issue of collateral estoppel. He then presided over the defendant's second trial, which addressed twenty-two counts of improper storage of a firearm alleged in the 2014 indictment, twenty-one of which identified a large capacity firearm. The jury convicted the defendant of twelve counts of improperly storing a large capacity weapon and acquitted him of the remaining ten counts.
The judge wrote: "After hearing, during which the parties told me what the evidence was in the previous case and what the Commonwealth expects the evidence to be in the instant case, I conclude that the issue of whether the guns in this case were improperly stored or secured, or whether these guns were under the control of the defendant or another authorized user at the time the police entered the premises, was not necessarily decided in the previous case. Moreover, there is no way of knowing whether the jury in the previous case based their verdict on the doctrine of entrapment, i.e., whether that issue was necessarily decided."
We need not recite the facts underlying the convictions because they are not relevant to the defendant's claims on appeal: that (1) § 131L is unconstitutional on its face, and (2) his second trial for improperly storing firearms violated principles of double jeopardy because he was previously tried for and acquitted of five counts of improperly storing a large capacity weapon. The defendant preserved these claims by filing motions to dismiss. See Commonwealth v. Carlino, 449 Mass. 71, 76 n.13 (2007); Commonwealth v. Peace Chou, 433 Mass. 229, 238 (2001). Both claims present questions of law that we review de novo. See Commonwealth v. Rodriguez, 476 Mass. 367, 369 (2017) (double jeopardy); Commonwealth v. McGhee, 472 Mass. 405, 412 (2015) (facial challenge).
The defendant has abandoned his vague as-applied challenge.
We reject the Commonwealth's contention that the double jeopardy claim is not preserved because the defendant focused on, and the motion judge only analyzed, the doctrine of collateral estoppel. That doctrine "operates in criminal proceedings as part of the guarantee against double jeopardy." Commonwealth v. Woods, 414 Mass. 343, 353 (1993).
Statutory framework. Section 131L "is part of an over-all scheme of gun control legislation designed to prevent the temptation and the ability to use firearms to inflict harm" (citation and quotation omitted). Commonwealth v. Patterson, 79 Mass. App. Ct. 316, 319 (2011). With the exception of antique firearms that are not at issue in this case, "[i]t shall be unlawful to store or keep any firearm" in this Commonwealth, "including, but not limited to, large capacity weapons, in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully unauthorized user." G. L. c. 140, § 131L (a). A "large capacity weapon" includes any semiautomatic weapon equipped with, capable of accepting, or readily modifiable to accept a "large capacity feeding device." G. L. c. 140, § 121. "Large capacity feeding device" is defined as a magazine that holds more than ten rounds of ammunition. Id. "For purposes of this section, such weapon shall not be deemed stored or kept if carried by or under the control of the owner or other lawfully authorized user." G. L. c. 140, § 131L (a).
The terms "capable of accepting a large capacity feeding device" and "readily modifiable to accept a large capacity feeding device" are further defined in regulations promulgated by the Secretary of Public Safety. See 501 Code Mass. Regs. § 7.02 (2007).
To effectuate its purpose as a public welfare statute, that is, one "criminaliz[ing] conduct that has not necessarily caused harm but is 'potentially harmful or injurious,'" Commonwealth v. Kelly, 484 Mass. 53, 58 (2020), quoting Staples v. United States, 511 U.S. 600, 607 (1994), § 131L authorizes punishment by fine, imprisonment, or both, in amounts that vary based on the level of risk presented by the violation. Minimum and maximum fine amounts and terms of imprisonment are set forth in the statute, and increase "in the case of a large capacity weapon" that is improperly stored. G. L. c. 140, § 131L (b). Penalties increase even more "in the case of a rifle or shotgun that is not a large capacity weapon" but was kept somewhere a minor "may have access without committing an unforeseeable trespass." G. L. c. 140, § 131L (c). The harshest penalties are imposed "in the case of a rifle or shotgun that is a large capacity weapon" and was kept somewhere a minor may have access. G. L. c. 140, § 131L (d). A violation of § 131L is evidence of wanton or reckless conduct in certain proceedings where a minor has "acquired access to a weapon" without authorization. G. L. c. 140, § 131L (e). "These subsections highlight the Legislature's specific interest in protecting children." Commonwealth v. Reyes, 464 Mass. 245, 250 n.5 (2013). They also demonstrate the "important role" the storage statute plays in the regulatory scheme. Id. at 250.
Discussion. 1. Vagueness. The Supreme Judicial Court has held that § 131L falls outside the scope of the right to bear arms that is protected by the Second Amendment to the United States Constitution. See Chief of Police of Worcester v. Holden, 470 Mass. 845, 853 (2015); Commonwealth v. McGowan, 464 Mass. 232, 244 (2013). Thus, as the judge who denied the defendant's motion to dismiss the indictments correctly held, "the defendant cannot seek relief on the basis that the statute is unconstitutional on its face." Commonwealth v. Golding, 86 Mass. App. Ct. 55, 59 (2014). See Commonwealth v. Jasmin, 396 Mass. 653, 655 (1986), and cases cited.
In any event, we agree with the judge's conclusion that this claim would not succeed on its merits because the statute is not vague. All semiautomatic firearm owners in this Commonwealth "can take simple steps to ensure compliance with" § 131L in the event their weapon becomes a large capacity one without their knowledge, Kelly, 484 Mass. at 61, by storing their firearm as provided in the statute.
2. Double jeopardy. We are not persuaded by the defendant's claim that his second trial, for improperly storing twenty-two other firearms, including twenty-one large capacity ones, ran afoul of the prohibition on "multiple punishments for the same offense." Mahoney v. Commonwealth, 415 Mass. 278, 283 (1993). Section 131L is not ambiguous with respect to the proper unit of prosecution, as the defendant claims, because the words "any firearm" clearly import the singular when they are considered with the rest of the language in the statute and the purpose of § 131L. See Commonwealth v. Wassilie, 482 Mass. 562, 567 (2019) (we look to language and purpose of statute in order to determine appropriate unit of prosecution). See also G. L. c. 4, § 6, Fourth ("words importing the plural number may include the singular"). "Any firearm" is modified in the first and last sentences of subsection (a) by "such weapon," making it clear that "any firearm" not in the control of an owner may not be stored in this Commonwealth unless "such weapon" is secured to prevent unauthorized access. That each firearm is the subject of its own safe storage requirement is reinforced by the fact that the penalty for a violation increases "in the case of . . . a large capacity . . . firearm," or "a rifle or shotgun," to which a minor may gain access (emphasis added). G. L. c. 140, § 131L (d). Liability also may be imposed on a gun owner if a minor acquires access to "a weapon" because it has not been securely stored (emphasis added). G. L. c. 140, § 131L (e).
Section 131L therefore is unlike the Federal statute at issue in United States v. Verrecchia, 196 F.3d 294 (1st Cir. 1999), which is the sole case upon which the defendant relies. The court in that case held that a defendant can only be convicted once for possessing multiple weapons at the same time in violation of 18 U.S.C. § 922(g)(1), because that statute "focuses on the person, not the firearm." Id. at 300. The court's conclusion in Verrecchia rested, in part, on the fact that "[e]ach possession of a firearm by a felon is of equal seriousness" under the statute. Id. at 301. By contrast, the seriousness of each violation of § 131L depends on the nature of the weapon and the manner in which it was stored.
The defendant's acquittal of improperly storing the five large capacity Glock firearms retrieved from the defendant's attic and identified by serial number in the 2015 indictment "resolved only one factual issue." Commonwealth v. Woods, 414 Mass. 343, 348 (1993). That issue was whether the defendant improperly stored those particular firearms. As a matter of law, the defendant's failure properly to store the twenty-two firearms alleged in the 2014 indictment, which we know are different firearms because they are also identified by serial number, could not have been a lesser included offense of any of those charges. The failures for which the defendant was on trial the second time were not "based on the same acts performed with the same [firearms]" that were at issue in the first trial. Commonwealth v. Rabb, 431 Mass. 123, 128 (2000).
The prosecution was required to prove that the defendant improperly stored "a separate set of [guns] in [the] subsequent prosecution." Therefore, "the defendant [wa]s not placed twice in jeopardy for the same offense." Woods, supra, citing Illinois v. Vitale, 447 U.S. 410, 416 (1980).
Judgments affirmed.
By the Court (Vuono, Lemire & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 11, 2020.