Criminal Defense Attorney

Possession of a Firearm, Larceny of a Firearm, Larceny from a Building – Charges Reduced – District Court

While working in a home, BMC, a 19-year-old laborer, stole a gun (along with other items) from a drawer in the owner’s basement. Later that night BMC returned the gun (and most of the belongings) to the local police station. At the police station he made a confession, describing how he stole the weapon. He was charged with Possession of a Firearm without a License, under G.L. c. 269, s. 10(a), Larceny of a Firearm, and Larceny from a Building. 

Possession of a Firearm without a License carries a mandatory minimum jail sentence of 18 months. In other words, if BMC were to be convicted of the crime he would have to go to jail for at least 18 months; no parole, no good time, no work release.

Henry wrote a “breakdown request” to the prosecutor, asking that they consider reducing the charge to a less serious one, whereby BMC would not be exposed to the mandatory minimum sentence. Henry cited BMC’s youth, lack of record, and fact that he returned the weapon. The prosecutor’s office initially agreed to reduce the charge to one less serious, under a different section of the same statute (G.L. c. 269, s. 10(h)). Unfortunately, BMC got into trouble again; this time, he was charged with an assault after a fight with his girlfriend. This new charge caused the prosecutors to revoke the breakdown.

In addition, to no one’s surprise, Motions to Suppress the defendant’s admission and seizure of the firearm were denied. 

Trial became the only option. At a trial, in order to prove that a person carried a firearm, the prosecutor must show, amongst other elements, that the weapon was indeed a “working firearm” at the time it was possessed by the defendant. In this case, because BMC had the weapon in his hand when he returned it to the police, it was quite easy for the government to show that BMC “possessed” the weapon. In gun cases where the weapon is not fired by the suspect, the government must bring in an expert ballistician to show that the weapon is operational. In this case, the weapon was test fired by a ballistics expert from the Massachusetts State Police. However, in a turn of luck for BMC, the expert was not available for trial. Nevertheless, the Commonwealth attempted to go forward by attempting to bring in another state police ballistician whom happened to have been present when the expert was firing the gun. Henry argued that the substitute witness was barred from testifying, as he would be considered a “substitute analyst” and that allowing his testimony would deprive BMC of his “Right of Confrontation” of the person that actually performed the test. After a lengthy hearing the judge agreed with Henry, he did not allow the secondary trooper to testify.

At this point the government’s case weakened, they would not be able to prove that the firearm was indeed “working.” BMC agreed to take a 6-month jail sentence on lesser included offenses. 

A side note – even if the primary ballistics expert had been available for trial, the government might have had a problem proving the case, as there was significant break in the “chain of custody” of the weapon. Specifically, shortly after BMC’s arrest the gun had been checked out of evidence and returned to the owner; it stayed with the owner for 8 months and was then brought back to the police to be tested by the State Police.