Licensure instruction required despite felon status

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A defendant convicted of carrying a firearm without a license and carrying a loaded firearm without a license has been granted a new trial by the Supreme Judicial Court because he was entitled to, but did not receive, a jury instruction that the commonwealth was required to prove that he did not possess a firearms license.

“The Commonwealth argues, however, that the failure to provide the instruction was harmless because, as a felon at the time he was charged with the firearm possession crimes, he was ineligible as a matter of law to obtain a firearms license,” Chief Justice Kimberly S. Budd wrote for the SJC.

“In making this argument, the Commonwealth relies on Commonwealth v. Bookman, 492 Mass. 396, 401 (2023), where we concluded that the failure to instruct that the lack of a firearms license was an element of the offense was harmless beyond a reasonable doubt. There, however, the Commonwealth presented uncontroverted testimony from a police officer that the defendant did not possess a firearms license. … In contrast, here, the Commonwealth did not present evidence that the defendant did not have a firearms license by proving that the defendant was a felon (and thus was ineligible to obtain a firearms license). Thus, the convictions of possession of a firearm (G.L.c. 269, §10[a]) and possession of a loaded firearm (G.L.c. 269, §10[n]) must be vacated and a new trial ordered,” Budd wrote.

The 11-page decision is Commonwealth v. Ferrara, Lawyers Weekly No. 10-103-25.

Click here to read the full text of the opinion.