Criminal – Firearm possession – Rifle

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Where a defendant has challenged his two convictions of unlawful possession of a rifle, the convictions must be reversed because there was no competent evidence that the weapon at issue had a rifled bore.

“Following a trial in the Boston Municipal Court, a jury found the defendant, Julio C. Ferreira Artur, guilty of possession of a rifle without a license, G.L.c. 269, §10(a); possession of an unloaded rifle, on a public way, that is not enclosed in a case, G.L.c. 269, §12D(b); and possession of ammunition without a firearm identification (FID) card, G.L.c. 269, §10(h)(1). On appeal, the defendant claims that his two convictions of unlawful possession of a rifle must be reversed because there was insufficient evidence that the weapon on which the convictions were based met the statutory definition of a rifle: ‘a weapon having a rifled bore with a barrel length equal to or greater than 16 inches and capable of discharging a shot or bullet for each pull of the trigger.’ G.L.c. 140, §121. The defendant also contends that his conviction of possession of ammunition must be vacated because, without the benefit of the Supreme Judicial Court’s guidance in Commonwealth v. Guardado, 491 Mass. 666, 692-693 (Guardado I), S.C., 493 Mass. 1 (2023) (Guardado II), cert. denied, 144 S. Ct. 2683 (2024), the judge did not instruct the jury that the absence of an FID card is an essential element of the offense and that error was not harmless beyond a reasonable doubt. We agree on both grounds. Accordingly, we reverse the judgments, set aside the verdicts, and order judgments to enter for the defendant on the two convictions involving possession of a rifle, and we vacate the judgment of conviction of possession of ammunition without an FID card. The Commonwealth may retry the defendant on the ammunition possession charge if it so chooses. …

“Among the witnesses who testified for the Commonwealth was a detective from the police department’s firearms analysis unit who had inspected the weapon. …

“The defendant contends that the judge erred in denying his motions for required findings of not guilty on the two charges involving unlawful possession of a rifle because the Commonwealth did not prove beyond a reasonable doubt that the weapon found near the defendant was a rifle under G.L.c. 140, §121. We agree. …

“… The detective never testified that the weapon in this case had a rifled bore, or even that he examined its bore. He did not explain what a rifled bore means, other than obliquely suggesting it was something other than ‘smooth.’ The Commonwealth argues that that the jury could still infer that the weapon had a rifled bore from the fact that the detective asserted it met the statutory definition of a rifle. The problem with that argument is that the detective twice defined what a rifle is — first generally, and then in connection with what he asserted the ‘Mass General Law’ requires — and both times he omitted the rifled bore requirement. Absent any other discussion of the weapon’s bore, it cannot be reasonably inferred from the detective’s testimony that this requirement of the definition was satisfied. …

“Apart from the detective’s testimony, the Commonwealth contends that a rifled bore is ‘a distinct physical characteristic’ which the jury could have seen ‘to some extent by simply staring down the barrel of the gun.’ We are not persuaded. While it is true that court officers made the rifle, magazines, and ammunition available to the jury for viewing (at different times) during their deliberations, it is unclear whether the jurors would have been able to inspect the interior of the rifle’s barrel, given safety concerns. Even if they had, the rifling of a bore is not a ‘universally familiar’ and understood attribute of a weapon such that jurors can identify it ‘simply by looking at one.’ … No witness told the jury what a rifled bore is, and the judge did not do so either in his instructions. …

“… Because there was no competent evidence that the weapon at issue had a rifled bore, the defendant’s convictions for unlawful possession of a rifle under G.L.c. 269, §§10(a) and 12D(b) must be reversed. …

“The judgments of conviction on the charges of possession of a rifle without a license and possession of an unloaded rifle on a public way are reversed, the verdicts are set aside, and judgments shall enter for the defendant. The judgment of conviction on the charge of possession of ammunition without an FID card is vacated, the verdict is set aside, and the case is remanded to the Boston Municipal Court for further proceedings consistent with this opinion.”

Commonwealth v. Ferreira Artur (Lawyers Weekly No. 11-033-25) (15 pages) (Toone, J.) The case was tried before Mark H. Summerville, J., in Boston Municipal Court. K. Hayne Barnwell on appeal for the defendant; Alyssa Hatfield (Mackenzie Slyman also present) for the commonwealth (Docket No. 24-P-235) (May 15, 2025).

Click here to read the full text of the opinion.