SJC reverses conviction on illegal firearm possession charge

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Criminal defense attorneys say the Supreme Judicial Court‘s recent reversal of a gun conviction reinforces the principle that a conviction must be based on evidence actually presented at trial.

The SJC found that defendant Erik Ferrara, who was convicted on charges of possessing a firearm without a license, should be granted a new trial on grounds that the judge did not instruct the jury that, in order to convict, the commonwealth had to prove Ferrara actually did not have a firearms license.

The commonwealth argued to the SJC that the lack of such an instruction constituted harmless error because, as a felon at the time he was charged with firearm crimes, he was ineligible as a matter of law to obtain such a license.

But the SJC disagreed, distinguishing the case from its 2023 ruling in Commonwealth v. Bookman, in which the court determined that the failure to instruct that the lack of a firearms license was an element of the offense was, in fact, harmless.

“[In Bookman], the Commonwealth presented uncontroverted testimony from a police officer that the defendant did not possess a firearms license,” Chief Justice Kimberly S. Budd wrote. “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.”

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

‘Theoretical fact’

Defense counsel Adela Aprodu of Danvers said Ferrara is a reasonable decision given Bookman and other rulings.

“I don’t think it’s fair to decide a person should be guilty or not based on what isn’t in the trial record,” she said.

Boston attorney Michael L. Tumposky, who represented the defendant in Bookman, also thought the SJC made the right decision.

“The commonwealth made a harmless error argument based on evidence that they theoretically could have presented to a jury instead of evidence that was actually presented to a jury,” Tumposky said, referencing the possession-without-a-license charges. “That’s not an appropriate basis to uphold a conviction based on a harmless error standard. In Bookman, there was actual evidence presented to the jury that the defendant didn’t have a firearm license. It was not a theoretical fact. And that was the basis for finding harmless error.”

More broadly, Tumposky said, the case shows that the SJC intends on following a strict harmless error standard based on evidence actually entered into the record at trial, not based on facts that may exist in the real world but are not presented in court.

Ryan P. Sullivan of Andover said the decision is one the commonwealth should have seen coming.

“After [the SJC’s 2023 decision in Commonwealth v.] Guardado, harmless error isn’t about what the prosecutor might have shown at retrial; it’s about what the jury actually heard at trial,” Sullivan said. “If the commonwealth wants to argue that someone couldn’t be licensed, they have to prove it in the courtroom. That didn’t happen here, and the court wasn’t willing to fill in the blanks.”

Boston attorney Alyssa T. Hackett noted that the ruling follows closely on the heels of the SJC’s controversial Commonwealth v. Collins decision earlier this summer, which allowed the commonwealth to introduce evidence of a prior felony in order to prove a charge of carrying a license without a firearm.

According to Hackett, Collins stacked the deck against people facing trial on gun cases.

“Collins placed the defendant in the unenviable position of stipulating to an element of the offense or allowing the jury to hear highly prejudicial preponderance evidence of a prior felony,” she said. “The commonwealth has received a windfall from Collins, allowing them to introduce the fact that the defendant has a felony conviction, despite long-held prohibitions against preponderance evidence.”

Hackett also said the introduction of felony convictions at gun trials would be slightly less offensive if everyone in the criminal law community was not already aware that mandatory minimum penalties for gun and drug crimes drive the disproportionate representation of people of color in the state’s prisons.

Arne Hantson of the Plymouth County District Attorney’s Office represented the commonwealth. The office did not respond to requests for comment.

Flawed instruction?

On July 4, 2021, an East Bridgewater police officer observed two men riding a moped without helmets.

He followed them to a cul-de-sac, where he initiated a traffic stop.

At the stop, the officer identified the operator as John Pena and confirmed Pena had a suspended license and an outstanding default warrant.

Neither Pena nor defendant Ferrara, who was Pena’s passenger, was licensed to drive the moped.

Because the moped could not be secured, the officer arranged to have it towed.

Before impounding the moped, the officer performed an inventory search and discovered a backpack in the unlocked storage compartment under the seat.

When he picked up the backpack, he felt something that he suspected to be a weapon.

Upon opening the backpack, the officer found a loaded handgun with the serial number removed. He also found personal belongings, including Ferrara’s Massachusetts ID.

The defendant, who was arrested, claimed ownership of several items in the backpack but denied that the firearm was his and denied having any knowledge of it.

The commonwealth charged Ferrara with possession of a firearm without a license, possession of a loaded firearm without a license, and defacing a firearm.

At trial, Superior Court Judge Daniel E. Hourihan apparently did not instruct the jury that the commonwealth had the burden of proving beyond a reasonable doubt, as an element of the offense, that Ferrara did not, in fact, possess a license to carry a firearm.

Hourihan instructed the jury that to support the defacement charge, the commonwealth had to prove Ferrara “intentionally removed, defaced, altered, obliterated, or mutilated” the gun’s serial number.

Ferrara was convicted on the gun possession charges.

He was also convicted of defacement, though the commonwealth apparently introduced the defaced firearm to support the charge without providing evidence that the defendant had defaced it knowingly and intentionally.

Ferrara appealed.

Harmful error

Addressing the gun possession convictions, the SJC noted that, in 2022, the U.S. Supreme Court ruled in New York State Rifle & Pistol Ass’n v. Bruen that an individual has a constitutional right to carry a firearm outside the home.

Applying Bruen to its own case law, under which the defendant previously had the burden of asserting as an affirmative defense that he or she possessed a license, Budd added that the SJC ruled in Guardado that in order to convict an individual of unlawful gun possession, the commonwealth had to prove beyond a reasonable doubt that the defendant did not have a license to carry.

Budd also noted that the new rule applied to cases that were active or pending on appeal as of the date Bruen was decided, and that if a defendant was convicted in that timeframe without the jury being properly instructed on the commonwealth’s burden, the defendant was entitled to a new trial.

“As the defendant’s appeal was pending after Bruen was decided, 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,” Budd said.

Along those lines, the SJC rejected the commonwealth’s argument that the lack of such an instruction was harmless error, since as a felon at the time of the alleged offense, Ferrara was ineligible to obtain a firearm license as a matter of law.

Distinguishing the case from Bookman, in which the SJC ruled that the lack of such an instruction indeed was harmless error, the court noted that in Bookman, the commonwealth had still presented evidence that the defendant lacked a license.

Here, where no such evidence was presented, the conviction had to be vacated and a new trial ordered, Budd said.

The court also threw out the defacement conviction and remanded it for an entry of a not-guilty judgment.

“[E[ven though evidence of possession of the defaced firearm constitutes prima facie evidence of a violation of the statute, absent any evidence proving the theory upon which the jury were instructed, i.e., that the defendant knowingly and intentionally defaced the firearm, the conviction must be reversed,” Budd said.