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SJC-12782

               COMMONWEALTH   vs.   FRANCISCO MARRERO.



       Middlesex.       December 6, 2019. - March 20, 2020.

   Present:    Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
                             Kafker, JJ.


Firearms. Intent. Identification.       Evidence, Intent, Firearm,
     Identification, Photograph.



     Indictments found and returned in the Superior Court
Department on September 22, 2016.

     A pretrial motion to suppress evidence was heard by Heidi
E. Brieger, J., and the cases were tried before Robert B.
Gordon, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Jon R. Maddox for the defendant.
     Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.
     David Rassoul Rangaviz, Committee for Public Counsel
Services, & Michelle Huynh, for Massachusetts Association of
Criminal Defense Lawyers, amicus curiae, submitted a brief.


    GAZIANO, J.     The defendant discharged a firearm twice into

the air.    Police were unable to find the weapon or any
                                                                     2


projectiles.    A Superior Court jury convicted the defendant of

unlawful possession of a firearm, unlawful possession of a

loaded firearm, and discharging a firearm within 500 feet of a

building.    The defendant argues that there was insufficient

evidence that he had knowledge of the physical characteristics

of the firearm that subjected it to regulation, and accordingly,

the convictions must be vacated.1    We conclude that, in order to

establish unlawful possession of a firearm, the Commonwealth

must prove only that the defendant knew the weapon was a firearm

in the conventional sense of the word.    The defendant need not

have had knowledge of the specific physical characteristics that

made the weapon a firearm according to statute.

     The defendant argues further that there was insufficient

evidence to establish that the weapon did in fact meet the

statutory definition of a firearm, and that two out-of-court

identifications were impermissibly suggestive.     We conclude

otherwise.     The evidence was sufficient for the jury to find

that the weapon met the statutory definition of a firearm, and

the identification procedures were not impermissibly suggestive.2




     1 The defendant also maintains that discharging a firearm
within 500 feet of a building requires proof of knowledge for
the element of discharge, a proposition foreclosed by our recent
decision in Commonwealth v. Kelly, 484 Mass. 53, 54, 66 (2020).

     2 We acknowledge the amicus brief of the Massachusetts
Association of Criminal Defense Lawyers.
                                                                      3


    Background.     We recite the facts the jury could have found

in the light most favorable to the Commonwealth, reserving some

details for later discussion.     See Commonwealth v. Palermo, 482

Mass. 620, 621 (2019).

    Nathaniel Perez, David Semprit, Vanessa Dubey, and Ricky

Alcantara attended a party and left together in Perez's

automobile.    They drove to a hotel, where another party was

underway.     Outside the hotel, they encountered the defendant,

who got into the vehicle.     The group then drove to the home of a

friend of Dubey's, and some or all of the vehicle's occupants

got out.     The defendant took a firearm that belonged to Perez

from the vehicle and discharged it twice into the air.

    Police officers responded to a report of shots fired in the

area.   They did not recover the weapon or any projectiles, but

they did find two shell casings imprinted with the characters

"9-M-M."     An officer testified that the casings were "consistent

with shell casings that would be left behind after a piece of

ammunition had been fired."

    Police obtained a surveillance video recording of the

intersection where the incident took place.     The recording

showed a man getting out of a vehicle, raising an object in the

air, and two flashes of light emitting from the object.     Based

on the recording, police interviewed Dubey, Perez, Semprit, and

Alcantara.    An officer showed Dubey an array of eight
                                                                      4


photographs, one of which was the defendant.     She identified the

defendant as "the guy with the gun."     Police later interviewed

Semprit and showed him the same photographic array.     He

identified the defendant as the person who had discharged the

weapon.

     Semprit and Perez each testified at trial that the

defendant had discharged the weapon.     Additionally, the

surveillance video recording was introduced in evidence.     Dubey

identified the man who appeared to discharge a firearm as the

defendant.3    A Superior Court jury convicted the defendant of

unlawful possession of a firearm, unlawful possession of a

loaded firearm, and discharging a firearm within 500 feet of a

building.     The defendant appealed from his convictions, and we

transferred the case from the Appeals Court on our own motion.

     Discussion.    1.   Unlawful possession of a firearm.   General

Laws c. 269, § 10 (a), states that "[w]hoever, except as

provided or exempted by statute, knowingly has in his

possession . . . a firearm, loaded or unloaded, as defined in

[G. L. c. 140, § 121,] . . . shall be punished . . . ."      A

firearm is defined as a "weapon . . . from which a shot or

bullet can be discharged and of which the length of the barrel

or barrels is less than [sixteen] inches."     G. L. c. 140, § 121.




     3   Ricky Alcantara did not testify.
                                                                   5


    The defendant argues that his conviction of unlawful

possession of a firearm required proof that he knew the facts

that caused the weapon to meet the statutory definition of a

firearm, and that the evidence of such knowledge in this case

was insufficient.

    Our objective in interpreting a statute "is to ascertain

and effectuate the intent of the Legislature."   Commonwealth v.

Newberry, 483 Mass. 186, 192 (2019), citing Commonwealth v.

Curran, 478 Mass. 630, 633 (2018).   To do so, "we look to the

words of the statute, 'construed by the ordinary and approved

usage of the language, considered in connection with the cause

of its enactment, the mischief or imperfection to be remedied

and the main object to be accomplished.'"    Commonwealth v. J.A.,

478 Mass. 385, 387 (2017), quoting Boston Police Patrolmen's

Ass'n, Inc. v. Boston, 435 Mass. 718, 720 (2002).

    Prior to 1974, the crime of unlawful possession of a

firearm did not contain a mandatory minimum punishment for

individuals who previously had not been convicted of a felony.

See G. L. c. 269, § 10 (a), as amended through St. 1973, c. 588.

Nor did it contain a mens rea requirement.   See id.   In 1974,

the Legislature enacted the so-called Bartley-Fox legislation,

which amended the statute to mandate a minimum punishment of one

year of imprisonment.   See Commonwealth v. Lemay, 11 Mass. App.

Ct. 992, 992 (1981), citing G. L. c. 269, § 10, as amended by
                                                                    6


St. 1974, c. 649, § 2.    In response to the change, and "mindful

of . . . the need to avoid possible constitutional doubts,"

(citation omitted), we interpreted the statute to contain an

implied requirement that a defendant knew he or she possessed a

firearm.   See Commonwealth v. Jackson, 369 Mass. 904, 916

(1976).    We later clarified the contours of this knowledge

requirement, and held that the Commonwealth must prove the

defendant knew that the weapon was a firearm "within the

generally accepted meaning of that term."    See Commonwealth v.

Sampson, 383 Mass. 750, 762 (1981), and cases cited.     See also

Commonwealth v. Bacon, 374 Mass. 358, 361 (1978) ("the

characteristics of a gun are obvious.    Therefore, in gun cases,

all an accused need know is that he [or she] is carrying a

gun"); Commonwealth v. Papa, 17 Mass. App. Ct. 987, 987-988

(1984), citing Sampson, supra at 762-763 & n.16 (where "a

conventional firearm with its obvious dangers is involved, the

Commonwealth need not prove that a defendant knows the exact

capabilities or characteristics of the gun which make it subject

to regulation").

    In 1990, the Legislature added the word "knowingly" to the

statute.    See St. 1990, c. 511, § 2; Commonwealth v. Cornelius,

78 Mass. App. Ct. 413, 416 & n.3 (2010).    The defendant argues

that this insertion abrogated our holding in Sampson, 383 Mass.

at 762.    He bases his argument on Commonwealth v. Cassidy, 479
                                                                    7


Mass. 527, 532 (2018), cert. denied, 139 S. Ct. 276 (2018), in

which we examined the mens rea requirements for a violation of

G. L. c. 269, § 10 (m).   That statute provides for punishment of

anyone who, without a license, "knowingly has in his [or her]

possession . . . a large capacity weapon" (as defined in G. L.

c. 140, § 121).   See G. L. c. 269, § 10 (m).   We stated that

"courts ordinarily read a phrase in a criminal statute that

introduces the elements of a crime with the word 'knowingly' as

applying that word to each element."   Cassidy, supra at 534,

quoting Flores–Figueroa v. United States, 556 U.S. 646, 652

(2009).   We therefore concluded that the Commonwealth must prove

that the defendant was aware of the facts that caused the weapon

to meet the statutory definition of a large capacity weapon.

Cassidy, supra at 536.

    The defendant argues that this principle of statutory

interpretation also should be applied to G. L. c. 269, § 10 (a),

which is worded similarly:   "Whoever . . . knowingly has in his

possession . . . a firearm, loaded or unloaded, as defined in

[G. L. c. 140, § 121,] . . . shall be punished. . . ."    But the

situation here is distinguishable for several reasons.    First,

the history of G. L. c. 269, § 10 (a), demonstrates that the

Legislature did not intend to require knowledge that the weapon
                                                                   8


met the statutory definition.   From 1984 through the present,4

the Criminal Model Jury Instructions for Use in the District

Court have stated that a defendant need know only that the

weapon is a firearm within the common meaning of the word.5

Since 1990, the Legislature repeatedly has amended G. L. c. 269,

§ 10, and has not demonstrated a clear intent to change the rule

articulated in Sampson, 383 Mass. at 762.   See Commonwealth v.




     4 Our case law during this period implicitly has endorsed
the rule set forth in Commonwealth v. Sampson, 383 Mass. 750,
762 (1981). See Commonwealth v. Young, 453 Mass. 707, 713 n.9
(2009), citing Commonwealth v. Jackson, 369 Mass. 904, 916
(1976), and Sampson, supra at 753 ("To establish a violation of
G. L. c. 269, § 10 [a], the Commonwealth must establish
that . . . the defendant knowingly possessed the firearm");
Commonwealth v. Sann Than, 442 Mass. 748, 752-753 nn.4, 5 (2004)
(quoting jury instructions regarding mens rea); Commonwealth v.
O'Connell, 432 Mass. 657, 663-664 (2000), citing Sampson, supra
at 762-763 & n.16, Commonwealth v. Bacon, 374 Mass. 358, 360-361
(1978), and Commonwealth v. Papa, 17 Mass. App. Ct. 987, 987-988
(1984) (in prosecution for violation of G. L. c. 269, § 10 [c],
defendant's "ignorance vis-à-vis . . . firearm's dimensions is
not a valid defense").

     5 See Instruction 7.600 of the Criminal Model Jury
Instructions for Use in the District Court (2013) ("Commonwealth
must prove beyond a reasonable doubt that the defendant . . .
knew that the item was a 'firearm,' within the common meaning of
that term. If it was a conventional firearm, with its obvious
dangers, the Commonwealth is not required to prove that the
defendant knew that the item met the legal definition of a
firearm"); Instruction 5.601 of the Model Jury Instructions for
Use in the District Court (1995) (same); Instruction 5.60 of the
Model Jury Instructions for Criminal Offenses Tried in the
District Court (1984) ("If the defendant knew that he [she] was
carrying a conventional weapon, the Commonwealth is not required
to prove that the defendant knew that it met the legal
definition of a firearm" [citing Papa, 17 Mass. App. Ct. at 987-
988]).
                                                                   9


Callahan, 440 Mass. 436, 441-442 (2003) (we presume that

Legislature is aware of decisions of this court and previous

legislation and would enact changes if it disagreed with our

interpretation of its intent); St. 1996, c. 20; St. 1996,

c. 151, §§ 487, 488; St. 1998, c. 180, §§ 68-70; St. 2006,

c. 48, §§ 5-7; St. 2014, c. 284, §§ 89, 90, 92.

    Moreover, the rule suggested by the defendant would be

unworkable and counterproductive.   See Ciani v. MacGrath, 481

Mass. 174, 178 (2019) ("we will not adopt a literal construction

of a statute if the consequences of doing so are absurd or

unreasonable" [quotation and citation omitted]).   General Laws

c. 269, § 10 (a), was intended to criminalize unlicensed

possession of a firearm, even absent discharge.    Compare id. (no

element of discharge) with G. L. c. 269, § 12E (prohibiting

discharge within 500 feet of building).   But proving knowledge

that a firearm met the statutory definition would entail proving

knowledge of the weapon's operability.    See G. L. c. 140, § 121.

This, in turn, often would require proof that the weapon had

been discharged previously, thereby running counter to the

statute's goal of criminalizing mere possession.   Cf. Cassidy,

479 Mass. at 537, quoting Staples v. United States, 511 U.S.

600, 615 n.11 (1994) ("firing a fully automatic weapon would
                                                                   10


make the regulated characteristics of the weapon immediately

apparent to its owner").6

     Lastly, the large capacity of a weapon often is not readily

apparent.    See Commonwealth v. Resende, 94 Mass. App. Ct. 194,

202 (2018) (insufficient evidence to infer knowledge of large

capacity).    Cf. Cassidy, 479 Mass. at 533, quoting Staples, 511

U.S. at 615 ("type of weapon owned by that defendant might 'give

no externally visible indication that it is fully automatic'").

Therefore, in Cassidy, supra at 536, it was logical to require

knowledge of the large capacity of the weapon prior to imposing

criminal responsibility.    See Staples, supra at 621-622 ("mere

unregistered possession of certain types of regulated weapons --

often difficult to distinguish from other, nonregulated types,

has been held inadequate to establish the requisite knowledge"

[quotation, citation, and alterations omitted]).    Here,

conversely, the "characteristics of a gun are obvious."     See

Sampson, 383 Mass. at 763, quoting Bacon, 374 Mass. at 361.       See


     6 Courts in some other jurisdictions have come to the same
conclusion that requiring knowledge of the physical
characteristics that subject a weapon to regulation would
undermine the goals of the statutory scheme. See State v.
Winders, 366 N.W.2d 193, 196 (Iowa Ct. App. 1985) ("To hold
otherwise would only serve to undermine the very purpose of the
provision in regulating possession of weapons in the interest of
public safety. Furthermore, it would place an almost impossible
burden of proof on the State . . ."); State v. Hill, 970 S.W.2d
868, 873 (Mo. Ct. App. 1998), citing Winders, supra (same);
State v. Watterson, 198 N.C. App. 500, 512 (2009) (noting
difficulty of proving knowledge of barrel length).
                                                                  11


also United States v. Jones, 222 F.3d 349, 353 (7th Cir. 2000)

("Based on the rifle's obvious characteristics[,] . . . the jury

could infer that [the defendant] knew that the instrument he

possessed was a firearm, not a BB gun"); Papa, 17 Mass. App. Ct.

at 987 ("conventional firearm with its obvious dangers").

Therefore, under G. L. c. 269, § 10 (a), it is sensible to

require knowledge only that the "instrument is a firearm within

the generally accepted meaning of that term."   See Sampson,

supra at 762.

    In light of the above, we conclude that G. L. c. 269,

§ 10 (a), does not require knowledge of the facts that make the

weapon a firearm according to the statutory definition.

    The defendant raises three other arguments that are

dependent on his mens rea argument.   First, he asserts that the

evidence before the grand jury was insufficient to establish

probable cause that he knew the firearm was capable of

discharging a shot or a bullet.   Second, he argues that there

was a substantial risk of a miscarriage of justice created by

the trial judge's failure to instruct the jury that the

defendant must have known of the physical characteristics that

made the weapon a firearm according to the statute.   Third, he

contends that if this type of knowledge is required for a

conviction under G. L. c. 269, § 10 (a) (unlawful possession of

a firearm), it necessarily must be required for a conviction
                                                                   12


under G. L. c. 269, § 10 (n) (unlawful possession of a loaded

firearm).   See Commonwealth v. Brown, 479 Mass. 600, 604 (2018)

("in order to be convicted under G. L. c. 269, § 10 [n], an

individual must first have been convicted under G. L. c. 269,

§ 10 [a] or [c]").   Because we conclude that a defendant need

not be aware of the physical characteristics that brought a

weapon within the statutory definition of a firearm, these three

claims are unavailing.

    2.   Sufficiency.    The defendant argues further that the

evidence was insufficient to establish that the weapon was

capable of discharging a shot or bullet, as required by G. L.

c. 140, § 121.   We do not agree.

    In Commonwealth v. Housewright, 470 Mass. 665, 680 (2015),

a witness testified that the defendant loaded a weapon and fired

it at someone, creating a flash and a loud sound.   We held that

the evidence was sufficient for the jury to find that the weapon

met the statutory definition of a firearm, despite the fact that

neither the weapon nor any projectiles were recovered.     See id.

See also Commonwealth v. Williams, 422 Mass. 111, 120-121 (1996)

("jury could properly have considered eyewitness testimony that

the defendant had a firearm in his possession, even in the

absence of the recovery of such a firearm" [citation omitted]);

Commonwealth v. Tuitt, 393 Mass. 801, 810 (1985), citing

Commonwealth v. Fancy, 349 Mass. 196, 204 (1965) (expert
                                                                    13


testimony was not necessary to establish that weapon met

statutory definition of firearm).

    Here, Perez testified that the defendant "had my gun, and

he shot it."   Semprit testified that the defendant "set off a

shot."   Surveillance video footage showed the defendant holding

an object resembling a firearm in the air, and two flashes of

light emitting from it.    Two shell casings labelled "9-M-M" were

found at the scene, and an officer answered affirmatively when

asked whether the casings were "consistent with actual working

ammunition."   This evidence is substantially similar to that in

Housewright, 470 Mass. at 680.

    The defendant argues that the discharges could have been

blanks, and the weapon might have been incapable of firing an

actual shot or bullet.    This farfetched explanation does not

negate the strong evidence that the weapon was operable.      See

Commonwealth v. Santana, 420 Mass. 205, 214 (1995), quoting

Commonwealth v. Merola, 405 Mass. 529, 533 (1989) (evidence

"need not exclude every reasonable hypothesis of innocence,

provided the record as a whole supports a conclusion of guilt

beyond a reasonable doubt").   See also Commonwealth v. Combs,

480 Mass. 55, 61–62 (2018), citing Commonwealth v. Gonzalez, 475

Mass. 396, 407 (2016) ("Proof of an essential element of a crime

may be based on reasonable inferences drawn from the evidence,

but it may not be based on conjecture").    Here, there was
                                                                  14


sufficient evidence that the weapon met the statutory definition

of a firearm.

    3.   Discharge of firearm within 500 feet of building.     The

defendant contends that we should interpret G. L. c. 276, § 12E,

to contain an implied requirement that the discharge be done

knowingly.   He further argues that, after we infer that the word

"knowingly" modifies the element of discharge, we should apply

the analysis from Cassidy, 479 Mass. at 534, to require

knowledge of all elements of the statute.   The first part of the

defendant's argument is foreclosed by our recent decision in

Commonwealth v. Kelly, 484 Mass. 53, 54, 66 (2020), in which we

held that the statute did not contain a mens rea requirement for

the element of discharge.   The second part of the defendant's

argument relies on the first, and therefore falls with it.

    4.   Photographic array.   The defendant argues that the

Superior Court judge who heard his pretrial motion to suppress

the out-of-court identifications made by Dubey and Semprit

(motion judge) erred in denying the motion.   "[T]he defendant

must show by a preponderance of the evidence that, in light of

the totality of the circumstances, the procedures employed were

so unnecessarily suggestive and conducive to irreparable

misidentification as to deny the defendant due process of law."

Commonwealth v. Arzola, 470 Mass. 809, 813 (2015), cert. denied,

136 S. Ct. 792 (2016), quoting Commonwealth v. Cavitt, 460 Mass.
                                                                     15


617, 632 (2011).   "'[W]e accept the [motion] judge's findings of

fact . . . absent clear error,' but we independently determine

'the correctness of the judge's application of constitutional

principles to the facts as found.'"     Commonwealth v. Amaral, 482

Mass. 496, 499 (2019), quoting Commonwealth v. Molina, 467 Mass.

65, 72 (2014).

    The motion judge found that the eight photographs showed

men of the same eye color, race, and hair color, with similar

facial hair and similar facial features; two of the men had

slightly higher hairlines.    In the photographs, four men wore

white shirts, one had a black shirt, and two were shirtless.

The defendant was the only individual wearing a red shirt.      The

officers who administered the photographic arrays knew that the

defendant was a suspect.     The judge concluded that the

photographic arrays were not impermissibly suggestive.

    The defendant argues that because he was the only person

wearing a red shirt, the identification procedures were

inherently suggestive.     See Commonwealth v. Thornley, 406 Mass.

96, 100 (1989) ("we disapprove of an array of photographs which

distinguishes one suspect from all the others on the basis of

some physical characteristic" [citation omitted]).     The man who

discharged the firearm, however, was not described as wearing a

red shirt.   Indeed, a witness testified that he might have been

shirtless.   Therefore, any suggestibility created by the red
                                                                   16


shirt was minimal.   See Arzola, 470 Mass. at 813 (array was not

impermissibly suggestive despite fact that perpetrator wore gray

shirt and defendant's photograph was only one shown wearing gray

shirt).   Contrast Thornley, supra at 100-101 (fact that only

photograph in array with individual wearing glasses was

defendant's photograph was impermissibly suggestive because

eyewitnesses relied on glasses in making identification).

    The defendant also argues that the identification was

tainted because the administering officers knew his identity and

that he was a suspect.   "[I]t is the better practice to have an

identification procedure administered by a law enforcement

officer who does not know the identity of a suspect . . . ."

Commonwealth v. Watson, 455 Mass. 246, 253 (2009).    The absence

of such a procedure, however, does not mean that the

identification was inevitably impermissible.    See id., citing

Commonwealth v. Silva–Santiago, 453 Mass. 782, 797 (2009).

Importantly, the motion judge found that the witnesses knew the

defendant prior to the incident.   This familiarity outweighed

any suggestiveness created by the officers' knowledge of the

defendant's identity.    See Commonwealth v. Thomas, 476 Mass.

451, 461 (2017).   The judge's finding was not clearly erroneous.

                                     Judgments affirmed.
