Not Guilty After Trial of Carrying A Loaded Firearm without a license c269 § 10(a) and Defendant Avoids 18 Month Mandatory Committed Jail Sentence.

• Steven Topazio wrote this July 5, 2019 at 2:58 pm

The client was arrested when he was found in possession of a loaded firearm and did not possess a valid FID card.  According to the case, while the police were preserving and analyzing an active crime scene, the client ducked under the yellow Boston Police crime scene tape and proceeded to walk on the sidewalk through the crime scene.  The police approached the client and told him that he had entered the Boston Police Department crime scene and that he would have to leave the crime scene until the police finished their investigation. During this interaction with the police the defendant was found to be in possession of a loaded handgun and placed under arrest after he was unable to present a license to carry. According to statute, whoever knowingly has in his possession a firearm, loaded or unloaded, without having in effect a license to carry firearms shall be punished by imprisonment in the state prison for not less than two and one-half years nor more than five years, or for not less than 18 months nor more than two and one-half years in a jail or house of correction. The sentence imposed on such person shall not be reduced to less than 18 months, nor suspended, nor shall any person convicted under this subsection be eligible for probation, parole, work release, or furlough or receive any deduction from his sentence for good conduct until he shall have served 18 months of such sentence.  The weapon taken from the client was an EKOL, Model Dicle, caliber 9mm P.A.K., semi-automatic pistol, that had 9mm Luger cartridges in the detachable magazine.  During trial, Attorney Topazio challenged the state’s evidence arguing that the EKOL, Model Dicle was not a firearm despite having modified 9mm Lugar slugs in the magazine and one in the chamber.  The ballistician who testified for the Commonwealth testified only that she successfully test fired a primed only cartridge, and with that certified that the weapon was a firearm as defined by law.  Attorney Topazio questioned the Ballistician as to why she did not test fire a live round and learned that the ballistician feared that the weapon, which was not designed for firing live rounds, might explode and out of safety only test fired a primed only cartridge which the EKOL was designed for.  Attorney Topazio elicited testimony from the ballistician that the Ekol model Dicle is a nice replica of the Beretta Cougar and is a starter pistol and also includes an adapter for firing signal flares.    Attorney Topazio argued that the device that is neither designed nor actually used as a weapon cannot be deemed a weapon that must be licensed because its owner intended to use it as a weapon at some time in the future time.  He argued that if a starter pistol or flare device here constituted a weapon, then the prosecution would have to prove the device was capable of discharging a shot or bullet within the meaning of the law as the proscription against carrying applies to working firearms only. As the expert testimony at trial indicated, some preparation was required to enable the Ekol starter pistol to discharge a shot. No bullets however were used in the test firing of the Ekol starter pistol because of the risk of harm to the person test-firing. Attorney Topazio argued that it is only the potential danger of the device as a firearm (i.e., a weapon capable of firing shots or bullets) that c. 269, Section 10 (a), was designed to guard against. The use of gunpowder or other explosive during the test-firing of the starter  device might have required more substantial or elaborate alteration and might have resulted in the device rupturing or misfiring in other respects. In Massachusetts, when faced with the issue of whether weapons such as starter pistols were capable of firing shots so as to be firearms encompassed by licensing laws, courts have focused on whether there was sufficient proof of test-firing without substantial alteration and without rupturing the barrel or causing any structural damage. Attorney Topazio argued that there was no evidence whether the Ekol starter pistol would actually fire or propel a shot, and that the device could have ruptured with the result of the shot barely dribbling out of the 9mm cartridge.  Attorney Topazio argued that the ballistician merely established that the Ekol starter pistol was proven to work as a starter pistol and that a device that is neither designed nor actually used as a weapon cannot be deemed a weapon that must be licensed because its owner intends to use it as a weapon at some time in the future.  Given these deficiencies in the testing process, the commonwealth to prove that the device was sufficiently capable of discharging a shot without malfunction so as to come within the proscription of c. 269, Section 10 (a), and the defendant was found not guilty.