COMMONWEALTH vs. KENNETH T. WOOD.

COMMONWEALTH vs. KENNETH T. WOOD.

398 Mass. 135

April 8, 1986 - July 29, 1986

Middlesex County

Present: HENNESSEY, C.J., WILKINS, ABRAMS, NOLAN, & O'CONNOR, JJ.

A person who was a "new resident" of the Commonwealth within the meaning of G. L. c. 140, Section 129C (j), but who was not in compliance with the provisions of G. L. c. 140, Section 131G, at the time of his arrest for violation of G. L. c. 269, Section 10 (a), was not entitled to the exemption set forth in G. L. c. 269, Section 10 (a) (3), that would allow him to carry a firearm on his person or under his control in a motor vehicle without a license. [136-138]

COMPLAINT received and sworn to in the Cambridge Division of the District Court Department on November 8, 1984.

On appeal to the jury session of that court, a question of law was reported to the Appeals Court by Arthur Sherman, J. The Supreme Judicial Court transferred the case on its own initiative.

Martin C. Gideonse for the defendant.

Fredric Lee Ellis, Assistant District Attorney, for the Commonwealth.

NOLAN, J. A question was reported to the Appeals Court from a jury of six session of the District Court pursuant to Mass. R. Crim. P. 34, 378 Mass. 905 (1979): "Can a person who possesses and carries a firearm on his person or under his control in a vehicle without a license be convicted [of violating G. L. c. 269, Section 10 (a) (1984 ed.)] where that person is a 'new resident' within the meaning of G. L. c. 140, Section 129C (j)?" We transferred the case to this court on our own motion. We answer the question, "Yes." The relevant facts are not disputed.

In July, 1984, the defendant left his home in Baton Rouge, Louisiana, and drove to Massachusetts with the intention of

Page 136

completing his college education. Along with his other personal belongings, the defendant brought with him a .38 caliber firearm which he had inherited from his grandfather in 1972. The defendant arrived in thee Commonwealth on July 18, 1984. Shortly after his arrival, the defendant secured employment and accepted an invitation to stay as a guest at a friend's home in Somerville. [Note 1]

On August 20, 1984, at approximately 3 A.M., thee defendant was stopped by the Cambridge police. Under the driver's seat of the defendant's car was the loaded .38 caliber firearm. The firearm was seized and the defendant was arrested. In a complaint on November 8, 1984, the defendant was charged with violating G. L. c. 269, Section 10 (a).

Pursuant to G. L. c. 218, Section 26A (1984 ed.), the defendant waived his right to a first instance jury trial. The defendant was tried on January 24, 1985. He was found guilty, and he received the mandatory minimum one-year sentence required by G. L. c. 269, Section 10 (a). The defendant thereafter claimed a trial de novo pursuant to G. L. c. 218, Section 27A (1984 ed.). That trial has been postponed pending the answer to the reported question.

To carry a firearm lawfully within the Commonwealth, a person must either possess a valid license or qualify for one of the exemptions to the licensing requirements. See Commonwealth v. Seay, 376 Mass. 735 , 739 (1978). See also Commonwealth v. Lindsey, 396 Mass. 840 , 843-845 (1986). In this case, we must determine whether the defendant has satisfied the exemption set forth in G. L. c. 269, Section 10 (a) (3). This exemption provides a defense to a person charged with unlawfully carrying a firearm, if that person is "complying with the provisions of section one hundred and twenty-nine C and one hundred and thirty-one G of chapter one hundred and forty." G. L. c. 269, Section 10 (a) (3).

Page 137

The defendant urges the court to interpret c. 269, Section 10 (a) (3), so that a defendant who satisfies the provisions of G. L. c. 140, Section 129C, is immune from prosecution. [Note 2]

To adopt the defendant's interpretation of the statute would effectively disregard the distinction between the exemptions for the unlawful "possession" of a firearm and the exemptions for the unlawful "carrying" of a firearm. See Commonwealth v. Landry, 6 Mass. App. Ct. 404 , 405-406 (1978).

The individual exemptions set forth in G. L. c. 140, Section 129C, refer to those instances in which a person may "own or possess [a] firearm, rifle, shotgun or ammunition" without a firearm identification card issued pursuant to G. L. c. 140, Section 129B (1984 ed.) (emphasis supplied). The exemptions pertaining to the carrying of a firearm are set forth in G. L. c. 269, Section 10 (a) (1)-(4). The defendant does not meet any of the carrying exemptions.

We acknowledge that the defendant was a "new resident" of the Commonwealth within the meaning of G. L. c. 140, Section 129C (j), at the time of his arrest. See note 1 supra. This status entitled the defendant to own or to possess a firearm during his first sixty days in the State, notwithstanding his noncompliance with the ordinary licensing requirements. This exemption does not allow the defendant, however, to "carry" a firearm during this same time period. See G. L. c. 140, Section 129C (j) (referring to possession). [Note 3]

Page 138

We next consider the defendant's argument that requiring a person to comply with the provisions of both G. L. c. 140, Section 129C and Section 131G, essentially eliminates the exemption provided by G. L. c. 269, Section 10 (a) (3). We note that G. L. c. 140, Section 131G, by its own terms, permits the carrying of a firearm. Thus, there is no need to satisfy the provisions of both Sections 129C and 131G of c. 140 in all circumstances. In this case, however, the defendant has only satisfied the exemption for possession. See G. L. c. 140, Section 129C (j).

The defendant also argues that G. L. c. 140, Section 129C, as amended through St. 1984, c. 172 (effective October 7, 1984), represents a "ratification" of his position that G. L. c. 140, Section 129C, provides a defense to the charge of carrying a firearm unlawfully under G. L. c. 269, Section 10 (a). [Note 4] We disagree. The remainder of the statute, which was not changed by the amendment, provides, as we indicated, supra, a defense to the charge of the unlawful possession of a firearm, not to the charge of unlawfully carrying a firearm.

Our interpretation of this statute is "consistent with our firm and established view of the prohibitions of Section 10 (a)." See Commonwealth v. Lindsey, 396 Mass. 840 , 843 (1986).

Page 139

The answer to the reported question is, "Yes." The case is remanded to the District Court for proceedings consistent with this opinion.

So ordered.

FOOTNOTES

[Note 1] The parties have stipulated that the defendant was a "new resident" of the Commonwealth within the meaning of G. L. c. 140, Section 129C (j) (1984 ed.), at the time of his arrest.

[Note 2] The defendant cites four cases for the proposition that the provisions of G. L. c. 140, Section 129C, provide a defense to the charge of unlawfully carrying a firearm under G. L. c. 269, Section 10 (a). See Commonwealth v. Seay, 376 Mass. 735 , 739 n.2 (1978); Commonwealth v. Morse, 12 Mass. App. Ct. 426 , 428 (1981); Commonwealth v. Lee, 10 Mass. App. Ct. 518 , 520-525 (1980); Commonwealth v. Landry, 6 Mass. App. Ct. 404 , 405-406 (1978). Although the defendant's reading of these cases is plausible, it does not accurately represent the holdings of the courts. In Commonwealth v. Landry, supra at 405, the Appeals Court explicitly rejected the interpretation of the statute urged by the defendant. See also Commonwealth v. Jones, 372 Mass. 403 , 405-406 (1977) (compliance with the provisions of Section 129C and Section 131G required).

[Note 3] We recognize that this statute may be thought to apply to a defendant who has been within the Commonwealth for no more than a few hours en route to his new Massachusetts residence, when he is arrested. Obviously the Legislature intended to protect new residents, but it did so in words which exempt the new resident only as to possession, not carrying. Possession of the firearm within the Commonwealth would ordinarily be preceded by at least a brief carrying of the firearm by the new arrival on the way to his new Massachusetts residence. The Legislature did not intend any exemption where, as in the case before us, the new resident was carrying the loaded gun in his automobile more than one month after he arrived in Massachusetts. The Legislature may wish to address the question whether a new resident in the Commonwealth for only a few hours en route to his new residence should face mandatory imprisonment.

[Note 4] Prior to St. 1984, c. 172, G. L. c. 140, Section 129C, as amended through St. 1978, c. 551, Section 1, read in part: "Neither the provisions of [Section 129C] nor the possession of a firearm identification card issued under [Section 129B] shall entitle any person to carry a firearm in violation of [c. 269, Section 10]." Compare G. L. c. 140, Section 129C (1984 ed.): "The possession of a firearm identification card issued under [Section 129B] shall not entitle any person to carry a firearm in violation of [c. 269, Section 10]."