Opinion
10-P-2143
03-14-2012
COMMONWEALTH v. HENRY IBANEZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of one count of carrying a loaded firearm without a license in violation of G. L. c. 269, § 10(a) and (n); one count of possession of ammunition without a firearm identification (FID) card in violation of G. L. c. 269, § 10(h); one count of carrying a firearm without a license in violation of G. L. c. 269, § 10(a); one count of receiving stolen property in excess of $250 in violation of G. L. c. 266, § 60; one count of operating a motor vehicle with a suspended license in violation of G. L. c. 90, § 23; and one count of operating an uninsured motor vehicle in violation of G. L. c. 90, § 34J. The judge also found the defendant responsible for one count of failing to stop for a school bus in violation of G. L. c. 90, § 14. The jury were instructed that the Commonwealth bore the burden of proof on all the elements of the charged criminal offenses beyond a reasonable doubt, including the absence of a firearm license, elements of G. L. c. 269, § 10(a), and the absence of an FID card under G. L. c. 269, § 10(h).
The defendant argues that both G. L. c. 269, § 10(a), which prohibits possession of a firearm without a license, and G. L. c. 269, § 10(h), which prohibits possession of ammunition without an FID card, violate the right to bear arms protected by the Second Amendment to the United States Constitution made applicable to the States by the Fourteenth Amendment to the United States Constitution. See McDonald v. Chicago, 130 S. Ct. 3020 (2010) (holding that the Second Amendment right to keep and bear arms is incorporated against the States). See also District of Columbia v. Heller, 554 U.S. 570 (2008) (articulating the scope of the Second Amendment right to keep and bear arms). In two recent cases, however, Commonwealth v. Loadholt, 460 Mass. 723, 725 (2011), acknowledged by the defendant, and Commonwealth v. Powell, 459 Mass. 572, 589-590 (2011), the Supreme Judicial Court held that where, as here, a defendant has not 'asserted or made any showing that he applied for (and was denied)' an FID card or a license, he lacks standing to challenge these statutes. Loadholt, supra at 725.
The defendant also argues that there was insufficient evidence of carrying a loaded firearm without a license in violation of G. L. c. 269, § 10(a) and (n), of carrying a firearm without a license in violation of G. L. c. 269, § 10(a), and of possession of ammunition without an FID card in violation of G. L. c. 269, § 10(h).
A police officer testified that her partner had demanded at the scene that the defendant 'hand over his firearm identification card and his license to carry,' and that after this demand was made the defendant 'stated that he did not have a license to carry a firearm.' This suffices to support the defendant's convictions for carrying a firearm without a license and carrying a loaded firearm without a license.
Assuming without deciding that this evidence alone is insufficient to support the conviction for possession of ammunition without an FID card, as the Commonwealth points out, '[T]he Commonwealth does not need to present evidence to show that the defendant did not have a license or FID card because the burden is on the defendant, under G. L. c. 278, § 7, to come forward with such evidence.' Powell, supra at 582 (footnote omitted). The defendant argues for the first time on appeal that the application of this burden-shifting statute violates due process. The Supreme Judicial Court, however, in Powell, recently reiterated its due process holding that 'G. L. c. 278, § 7, did not create an unconstitutional presumption because it did not shift to the defendant the burden of proof on an element of the crime.' Id. at 582. And in Loadholt, citing Powell, the court said, 'Nothing in the McDonald and Heller decisions has altered or abrogated the state of the law concerning the statutory presumption set forth in G. L. c. 278, § 7.' Loadholt, supra at 727.
That statute reads, 'A defendant in a criminal prosecution, relying for his justification upon a license . . . shall prove the same; and, and until so proved, the presumption shall be that he is not so authorized.' G. L. c. 278, § 7.
The defendant also raises several claims of trial error, none of which has any merit. There was no error in either the testimony or the prosecutor's closing with respect to a laser sight that was attached to the gun found in the defendant's car. The presence of the laser sight was not, as the defendant contends, overemphasized. The judge's curative instruction with respect to an improper question by the prosecutor sufficed to cure the error. There was no abuse of discretion or other error in the judge's refusing to give an instruction according to Commonwealth v. Bowden, 379 Mass. 471, 485-486 (1990); the decision whether to give such an instruction is always within the judge's sound discretion. See Commonwealth v. Avila, 454 Mass. 744, 767 (2009).
Finally, we agree with the defendant that, as the Commonwealth essentially conceded at argument, the evidence about marijuana having been found in the car was not relevant, and therefore it should not have been admitted. Ultimately, however, in light of the strength of the other evidence in the case, this error was not prejudicial.
For these reasons, the judgments are affirmed.
So ordered.
By the Court (Cypher, Vuono & Rubin, JJ.),