Source: Criminal Model Jury Instructions for Use in the District Court
Revised: July 2023
Statute: G.L. c. 269, § 10(a)
Historical note: The offense was previously referred to as "carrying" a firearm and required movement. "Carrying" was removed and replaced with possession by St. 1990, c. 511 (effective January 2, 1991).
The Commonwealth must prove four (five) things beyond a reasonable doubt:
Fifth element options (if evidence supports):
- A. (Residence/business) The defendant possessed the weapon outside their residence or place of business.
- B. (Exemption) The defendant did not qualify for a statutory exemption under G.L. c. 140, § 129C.
Direct physical control: A person possesses something if they have direct physical control of it.
Control in a vehicle: Not enough that defendant was present in same vehicle. Commonwealth must also prove defendant knew it was there, and had both the ability and intention to exercise control. Exclusive control not required.
Constructive possession: An object is in a person's possession without physical custody if they have:
- Knowledge of the object
- Ability to exercise control over it (directly or through another person)
- Intent to exercise control over it
Brzezinski, 405 Mass. 401, 409 (1989); Costa, 65 Mass. App. Ct. 227, 234 (2005); Sann Than, 442 Mass. 748, 755 (2004).
Mere presence is not enough: Being present near an item, even knowing it is there, does not amount to possession without evidence of intent to control. Romero, 464 Mass. 648, 654 (2013). Presence must be augmented by additional inculpatory evidence. Albano, 373 Mass. 132, 134 (1977).
Guilt by association: Possession is not proved simply because defendant was associated with a person who controlled the item or the property where it was found.
Firearm: Pistol, revolver or other weapon from which a shot or bullet can be discharged, with barrel length less than 16 inches. G.L. c. 140, § 121. Jury can determine from inspection; no expert testimony needed. Tuitt, 393 Mass. 801, 810 (1985). Testimony about "revolver" or "handgun" supports inference barrel under 16 inches. Sperrazza, 372 Mass. 667, 670 (1977).
Rifle: Rifled bore, barrel 16+ inches, capable of discharging per trigger pull.
Shotgun: Smooth bore, barrel 18+ inches, overall length 26+ inches, capable of discharging per trigger pull.
Stun gun: Portable device from which electrical current designed to incapacitate may be directed. A firearm under the law. St. 2018, c. 123, § 4.
Flare gun: NOT a firearm. Sampson, 383 Mass. 750, 753-761 (1981).
Defendant must have known they possessed a (firearm) and knew it was a (firearm) within the common meaning. Commonwealth not required to prove defendant knew item met legal definition. Marrero, 484 Mass. 341, 346-347 (2020); Sampson, 383 Mass. 750, 762 (1981); Papa, 17 Mass. App. Ct. 987, 987-988 (1984). Knowledge need not be alleged in complaint. Bacon, 374 Mass. 358, 359 (1978). Knowledge must be proved. Jackson, 369 Mass. 904, 916-917 (1976).
Commonwealth must prove defendant not licensed as an element. Guardado, 491 Mass. 666, 668 (2023), overruling Gouse. Applies prospectively and to cases active/pending on direct review as of June 23, 2022 (date of Bruen).
Proof methods: Defendant's own statements; properly certified government records from local PD or Firearms Records Bureau (G.L. c. 233, §§ 76, 78, 79J; Mass. R. Crim. P. 40(a)). But Confrontation Clause likely prohibits admission of agency certificates without a testifying witness familiar with the records. Guardado, 491 Mass. at 695 (Lowy, J., concurring).
FID card distinction: An FID card allows possession within residence or place of business only (for firearms). It is a defense to carrying a rifle or shotgun but not other firearms. G.L. c. 269, § 10(a)(5).
Residence/place of business does not include common areas of apartment or office buildings; only areas under person's exclusive control. Guardado, 491 Mass. at 682-685; Coren, 437 Mass. 723, 734 (2002); Seay, 376 Mass. 735, 743 (1978). Vehicle in residence exemption: only if vehicle is located within or on defendant's residence. Harris, 481 Mass. 767, 780 (2019). This exemption is an affirmative defense. Guardado, 491 Mass. at 683.
Sufficient evidence cases:
- Santos, 95 Mass. App. Ct. 791, 800 (2019): car controlled by defendant, shotgun partially in plain view and within reach, concealment, false info to police, repair of shotgun
- Albano, 373 Mass. 132, 134-136 (1977): gun in plain view, defendant acted suspiciously
- Bailey, 29 Mass. App. Ct. 1007, 1008 (1990): gun in plain view near feet, broken-into car, attempted escape
- Montgomery, 23 Mass. App. Ct. 909, 910 (1986): gun on defendant's side of auto, matching ammunition clip
- Lucido, 18 Mass. App. Ct. 941, 943 (1984): gun in glove compartment with defendant's personal letters
- Donovan, 17 Mass. App. Ct. 83, 85-86 (1983): gun under seat surrounded by defendant's property
Insufficient evidence cases:
- Brown, 401 Mass. 745, 747 (1988): stolen car, guns under passenger seat, no admissions
- Almeida, 381 Mass. 420, 422-423 (1980): gun inside covered console of borrowed auto
- Boone, 356 Mass. 85, 87 (1969): defendant was passenger, gun under driver's seat
- Hill, 15 Mass. App. Ct. 93, 94-97 (1983): gun inside woman's purse at male passenger's feet
Probable cause: Possession of a firearm alone, without indication of criminal activity, does not provide probable cause to believe person was unlicensed. Couture, 407 Mass. 178 (1990). Additional evidence of criminal activity and flight can establish probable cause. Brookins, 416 Mass. 97, 104 (1993).
Ballistics certificate: Admission without opportunity to cross-examine is constitutional error. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Muniz, 456 Mass. 166, 168 (2010).
Notice of affirmative defenses: Under Mass. R. Crim. P. 14(b)(3), defendant must file advance notice of exemption defense with prosecutor and clerk-magistrate.