Massachusetts Appeals Court Rules Defendant Cannot Be Convicted of Possessing a Loaded Firearm After Acquittal on Underlying Offense

The Massachusetts Appeals Court today reversed the conviction of a man who was found guilty of possessing a loaded firearm where the same jury found the defendant not guilty of carrying the gun to begin with.  The name of the case is Commonwealth v. Dancy. 

The defendant was attending a festival in Dorchester on the morning of August 25, 2012.  A passerby pointed to a group of people that included the defendant and told a Boston police officer that a man in the crowd had a gun.  The defendant and two others had started to walk away from the festival and multiple cops began following them.  One of the officers watched as the defendant, who had been walking quickly, showed down near a parked car.  The officer then heard a noise that sounded like a gun hitting the pavement.  The cops moved in to interrogate the defendant and found a loaded gun underneath the parked car.  The defendant was charged in the Boston Municipal Court with: unlawful possession of a gun; unlawful possession of ammunition; and unlawful possession of a loaded gun.  The defendant went to trial and a jury found him not guilty of possessing the gun and the ammunition, but guilty of possessing a loaded firearm.  He appealed, arguing he could not be simultaneously convicted of carrying a loaded firearm while acquitted of carrying a firearm.  The Appeals Court reversed.

A defendant can be charged with unlawfully carrying a firearm even if it is not loaded.  If the gun is loaded, the defendant is charged with the second crime of carrying a loaded gun.  The second crime acts as a sentencing enhancement with a penalty that is required to be imposed consecutively (from and after) the penalty on the predicate crime (simple unlawful possession of a gun).  Common sense would tell you, then, that in order to be convicted of carrying a loaded gun, you first must be convicted of carrying a gun.  The Appeals Court agreed with that common sense reading of the statute.  The Court pointed out that the statute that prohibits the carrying of a loaded gun requires a defendant to be “further punished” with jail or probation.  “Further punishment” can only happen if the defendant has been punished for the predicate offense.  If the defendant was acquitted of the predicate offense, as was the case here, there is no punishment to enhance.  The Court said inconsistent verdicts do not necessarily require reversal of a guilty finding.  However in a case like this, where a conviction for the second crime is premised on a conviction for the first crime, the guilty finding cannot stand.  The Suffolk District Attorney’s Office argued the conviction could stand as long as the defendant was charged with the predicate offense (even if he was acquitted).  The Court quickly disposed of this argument as being in conflict with the clear language of the law.

Massachusetts has some of the most strict gun laws in the country, and many convictions carry mandatory minimum jail sentences.  If you are charged with a firearms offense in the Commonwealth, you should immediately contact an experienced criminal defense attorney.