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Date: 03-18-2017

Case Style:


Case Number: 15-P-1731

Judge: Elspeth Cypher

Court: Massachusetts Appeals Court

Plaintiff's Attorney:

Susan Leigh Harris, Assistant District Attorney

Defendant's Attorney:

Bob Sheketoff


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The incident in question arises from a roadside
confrontation between the defendant and another driver.2 During
this confrontation, the second driver seized a firearm from the
defendant and contacted police after the defendant left the
scene in his vehicle. Police recovered this firearm, a small
silver revolver, from the pavement near the other driver, and
located the defendant a short distance from the scene. Officers
discovered the firearm to be loaded, and later ballistic testing
revealed it was capable of firing.
At trial, the defendant did not contest possession. He
testified that the firearm was his, and that he was aware that
it was loaded. The defendant claimed, however, that the
Commonwealth had failed to meet its burden to prove operability,
arguing that the chain of custody evidence was insufficient, as
were the qualifications of the police officer conducting the


1. Exclusion of antique firearm evidence.
Prior to trial, the defendant indicated his intent to rely on
the defense of exemption from the firearm licensure requirements
for an antique firearm manufactured prior to 1900.3 See
Commonwealth v. Jefferson, 461 Mass. 821 (2012). In support of
his defense, the defendant wanted to testify that he had
purchased the firearm from "the online [Internet] store,
antiqueguns.com," from "a section of the store entitled Pre-1898
manufactured firearms." He sought also to testify that he was
interested in and had researched antique firearm ownership, and
that he "specifically looked for" an antique firearm. He sought
to testify that he believed that the firearm he had purchased
was in fact an antique.
The trial judge indicated that she would allow the
defendant to testify about where he purchased the firearm, but
not that it was specifically from the pre-1898 section of the
Web site. She precluded him from testifying as to his own
belief in the antiquity of the firearm.
At trial, the defendant testified that he had taken a
firearms safety course and subsequently learned that in the city
in which he resided, it was "almost impossible to gain a
[firearms] license." He testified that he investigated other
methods of legally owning a firearm, and eventually purchased a
weapon on the antiqueguns.com Web site. He was precluded from
explaining why he wanted to purchase the specific weapon at
issue. On redirect, the defendant was permitted to testify that
the Web site was arranged into categories "sectioned off by
years," and that he purchased his firearm from the section of
the Web site indicating that it contained firearms manufactured
prior to 1898.
The only portion of the defendant's proffered testimony
that the judge ultimately excluded was the defendant's belief
that his firearm was an antique, and that he had purchased the
firearm based on that belief. This testimony was properly
excluded. The mens rea required for conviction pursuant to
G. L. c. 269, 10(a), is simply the defendant's knowledge that
he was carrying a firearm.4 See Commonwealth v. Jackson, 369
Mass. 904, 916 (1976). Neither 10 nor G. L. c. 140, 121,
provides for the affirmative defense of a defendant's honest but
mistaken belief that he is exempt from firearms licensure
requirements. The defendant has provided no authority to the
contrary. The defendant's personal belief in the antiquity of
the firearm was therefore irrelevant, and was properly excluded.

2. Failure to instruct on antique firearm exemption. At
the close of evidence, the defendant requested that the jury be
instructed on the antique firearm exemption from licensure
requirements. In support of his request, he relied on his
testimony as described supra, as well as the appearance of the
firearm itself.5 The judge denied the request, finding that the
defendant had failed to produce sufficient evidence to properly
raise the defense. The defendant challenges the denial of his
request for the instruction.
To properly raise a defense of antique firearm, a defendant
"bears the burden of producing evidence of the affirmative
defense that the firearm was manufactured before 1900."
Jefferson, 461 Mass. at 834.6 Whether a defense has been
6 Despite the specific guidance of Jefferson, the defendant, relying on Commonwealth v. Humphries, 465 Mass. 762 (2013), argues that he should merely bear the burden of notice of the affirmative defense rather than the burden of production, because whether the firearm was an antique was not "peculiarly within the knowledge of the defendant." Id. at 770 (citation omitted). We do not view Humphries to have overruled Jefferson on this issue, nor do we perceive the facts of Humphries to be meaningfully similar to those in the case at bar. In Humphries, the court found that a defendant need not bear the burden of production where he alleges the defense of licensure as to a firearm possessed by a coventurer third party. See ibid. Here, no third party was involved, and the defendant purchased the firearm himself from an online store of his own choosing after learning that he would likely not be able to obtain a firearms
properly raised is a legal issue for the court to determine.
See Commonwealth v. Kingston, 46 Mass. App. Ct. 444, 449-450
(1999). Generally, "if any view of the evidence would provide
support for an affirmative defense," a defendant is entitled to
a jury instruction on that defense. Commonwealth v. Monico, 373
Mass. 298, 299 (1977). In assessing the evidence, "all
reasonable inferences should be resolved in favor of the
defendant, and, no matter how incredible his testimony, that
testimony must be treated as true." Commonwealth v. Pike, 428
Mass. 393, 395 (1998). "The precise quantum of proof necessary
to discharge the defendant's burden of production and thereby to
impose upon the Commonwealth the burden of proof as to an
affirmative defense has not been defined by our courts."
Kingston, supra at 450 n.10. Nonetheless, a defendant
ultimately "is not entitled to a charge on a hypothesis which is
not supported by the evidence." Monico, supra at 299.
The defendant's submission was insufficient to meet his
burden of production to raise the affirmative defense that the
firearm was an antique, and thereby exempt from licensure
requirements. At trial, the defendant offered evidence
consisting merely of the hearsay labeling of the Web site from
which he purchased the firearm, combined with the hearsay title
of the section in which the firearm was listed. The defendant
proffered no evidence regarding the reliability of the Web site
or its labeling, any relevant features of the firearm itself, or
any materials or certificates accompanying the weapon.


There is no requirement that expert testimony be presented in support of an affirmative defense of antique firearm
exemption. Indeed, we do not prescribe any particular method of
meeting a defendant's burden on this issue, as the circumstances
of each case will no doubt present distinct factual issues.
Bare uncorroborated hearsay unaccompanied by any indicia of
reliability will not suffice to adequately raise the defense,
and thereby will not entitle a defendant to a jury instruction.
Accordingly, the defendant's request was properly denied.

Judgments affirmed.

Plaintiff's Experts:

Defendant's Experts:


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