Opinion
No. 11–P–643.
2012-05-22
COMMONWEALTH v. Vladimir SAMUEL.
By the Court (GRAHAM, VUONO & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial in the District Court, the defendant, Vladimir Samuel, was convicted of possession of marijuana with intent to distribute and possession of a firearm and ammunition without a firearm identification card (FID card). On appeal, he contends that his convictions on the firearm and ammunition charges must be reversed because the licensing requirement of G.L. c. 269, § 10( h )(1), is unconstitutional as applied to him, citing the United States Supreme Court decisions of McDonald v. Chicago, ––– U.S. ––––, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) ( McDonald ), and District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) ( Heller ),
and that, especially in light of McDonald and Heller, the requirement of G.L. c. 278, § 7, that the defendant prove his possession of a license, violates his due process rights.
Although McDonald was decided after the date of the defendant's convictions, his challenge is nevertheless properly before us. See Commonwealth v. Powell, 459 Mass. 572, 587, 946 N.E.2d 114 (2011).
He notes that on the date on which he was arrested, he would have been eligible for a license had he applied for one. We affirm.
We note that although the defendant filed a general notice of appeal, he argues error only with respect to the possession of a firearm and ammunition without an FID card convictions.
Factual background. Pursuant to a valid search warrant, on November 21, 2008, police officers searched the defendant's home and, along with a significant quantity of marijuana and cash, discovered a firearm—specifically, a .41 caliber Smith & Wesson revolver—and ammunition in a locked safe in the defendant's home. The defendant did not produce a license to possess the firearm or ammunition at his jury-waived trial, nor did he allege that he had applied for one.
Discussion. a. Second Amendment challenge. As the Supreme Judicial Court has made clear, Commonwealth v. Powell, 459 Mass. 572, 589–590, 946 N.E.2d 114 (2011); Commonwealth v. Wallace, 460 Mass. 118, 122–123, 949 N.E.2d 908 (2011); Commonwealth v. Loadholt, 460 Mass. 723, 725, 954 N.E.2d 1128 (2011), a defendant who elects to violate the law rather than apply for a license (and be denied) cannot challenge his convictions pursuant to G.L. c. 269, § 10( h )(1), under the Second or Fourteenth Amendment. The defendant's eligibility for a license on the date of his arrest is irrelevant.
b. Due process claim. “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, 954 N.E.2d 1128. Because § 7 does not shift to the defendant the burden of proof on an element of the crime, the defendant's due process argument is without merit. See Powell, supra at 582, 946 N.E.2d 114.
Judgments affirmed.