Opinion
No. 11–P–1248.
2013-03-22
COMMONWEALTH v. Treon MAYERS.
By the Court (GRASSO, BROWN & GREEN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
As most of the defendant's arguments are controlled by settled principles, we will treat each claim of error in summary manner, merely citing, where appropriate, relevant case law.
1. Motion to suppress. The motion judge correctly concluded that the defendant was not seized until he had abandoned the firearm. See and compare Commonwealth v. Franklin, 456 Mass. 818, 822–823 (2010); Commonwealth v. Perry, 62 Mass.App.Ct. 500, 502, 503–504 (2004). Contrast Commonwealth v. Mubdi, 456 Mass. 385, 393 n.8 (2010); Commonwealth v. Powell, 459 Mass. 572, 578 (2011).
2. Sufficiency of evidence. This issue is controlled by the reasoning set out in Commonwealth v. Whitlock, 39 Mass.App.Ct. 514, 519 (1995), and Commonwealth v. Rupp, 57 Mass.App.Ct. 377, 386 (2003).
3. 911 call. The judge was well within his discretion in ruling that the 911 call did not qualify as an excited utterance. See and compare Commonwealth v. Beatrice, 460 Mass. 255, 256–257 (2011). In any event, the information supplied by the 911 call does not bear on the determination whether the defendant possessed a loaded firearm. 4. Duplicative convictions. a. As the Legislature has authorized consecutive convictions under G.L. c. 269, § 10( n ), and § 10( a ), the convictions of possession of a firearm and possession of a loaded firearm are not duplicative. Cf. Commonwealth v. Alvarez, 413 Mass. 224, 230–233 (1992).
b. The Commonwealth has conceded that convictions of both possession of ammunition under G.L. c. 269, § 10( h ), and possession of a loaded firearm under § 10( n ), are duplicative. In light of the reasoning of Commonwealth v. Johnson, 461 Mass. 44, 52–53 (2011), and the particular circumstances presented here, we agree.
5. Second Amendment to the United States Constitution. Based substantially on the reasoning set out in Commonwealth v. Powell, 459 Mass. 572, 589–590 (2011), the defendant's challenge to his conviction on Second Amendment grounds fails.
6. Conclusion. On the indictment charging unlawful possession of ammunition under G.L. c. 296, § 10( h ), the judgment is vacated, the verdict is set aside, and the indictment is to be dismissed. The remaining judgments of conviction are affirmed, however we vacate the sentences on those convictions and remand for resentencing. See Commonwealth v. Ruggerio, 32 Mass.App.Ct. 964, 966 (1992).
So ordered.