NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-909
COMMONWEALTH
vs.
DEREK MANCEVICE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Derek Mancevice, appeals from his conviction
of possession of ammunition without a license, pursuant to G. L.
c. 269, § 10 (h) (1). His principal argument is that he was
convicted in violation of the Second Amendment to the United
States Constitution, because he had a lawfully issued license to
carry firearms and ammunition that he claims was wrongfully
suspended by the licensing officer, the chief of police of
Barre, six days before the defendant was found to be still in
possession of ammunition. Relying on New York State Rifle &
Pistol Ass'n v. Bruen, 597 U.S. 1 (2022) (Bruen), the defendant
argues that the suspension violated the Second Amendment because
the "suitability" requirement of G. L. c. 140, §§ 131 (d) and (f), and related provisions (as in effect in 2018), granted too
much discretion to the licensing authorities to suspend firearm
licenses, and thus were unconstitutional either on their face or
as applied.1
For the reasons that follow, we affirm the defendant's
conviction. As to the defendant's facial challenge, to be
unconstitutional on their face, G. L. c. 140, §§ 131 (d) and
(f), would have had to violate the Second Amendment in all of
their applications. See United States v. Rahimi, 602 U.S. 680,
693 (2024). The statutes did not fail under this test, because
they provided for suspension of licenses for many valid reasons,
such as when a person has been convicted of a felony or
determined to be a threat to another person pursuant to G. L.
c. 209A. See G. L. c. 140, §§ 131 (d), (f), as amended through
St. 2018, c. 123, §§ 11-12. Licenses to carry may certainly be
suspended for those reasons, or any time the license holder has
been "found by a court to pose a credible threat to the physical
1 As discussed in more detail infra, the defendant's arguments focus in particular on the "may issue" language of §§ 131 (d) and (f), as those sections existed in 2018 and were applicable to his case. The "may issue" language has since been removed from the statute by amendment, although the "suitability" requirement remains. See St. 2022, c. 175, §§ 7, 9, 10, 12. This memorandum and order addresses the statutes as they existed at the time of the defendant's license suspension and criminal acts in 2018.
2 safety of another," as the United States Supreme Court recently
held in Rahimi, supra at 702.
Nor has the defendant mounted a meritorious as-applied
challenge, because as framed his as-applied challenge is not
materially different from his facial challenge. Put
differently, the defendant has not raised a specific challenge
to the reason for the suspension. And in any event, here the
defendant's license to carry was suspended under G. L. c. 140,
§ 131 because he was charged with the crime of witness
intimidation, G. L. c. 268, § 13B, and also, apparently, because
a few weeks after he was charged with witness intimidation, he
was involved in an altercation at a local market, at which he
brandished a firearm. Suspending a license to carry under those
circumstances fits comfortably within the Supreme Court's
approval of "firearm laws [that] . . . prevent[] individuals who
threaten physical harm to others from misusing firearms,"
Rahimi, 602 U.S. at 690. Accordingly, the defendant has shown
no constitutional infirmity in his conviction. As we discern no
merit in the other arguments the defendant raises, we affirm.
Background. In 2018, the defendant Mancevice had a license
to carry firearms issued by the police chief of Barre. On July
3, 2018, Mancevice was charged with intimidation of a witness
under G. L. c. 268, § 13B. A separate incident occurred a few
weeks later, on August 25, 2018, when witnesses claimed
3 Mancevice was involved in an altercation in which he brandished
a firearm.
The Barre chief of police suspended Mancevice's license to
carry two days after the second incident, on August 27, 2018.
The chief of police did so through a notification sent by
certified mail, which Mancevice received on September 6. The
notification stated that the reason for the suspension was that
Mancevice was "deemed to be an unsuitable person" because
"[l]icensee has been charged with a felony under [G. L. c. 268,
§ 13B]." Mancevice was informed that he was required to turn
over to the Barre police department "without delay, your
firearms license(s) and all firearms, rifles, shotguns, machine
guns, large capacity feeding devices, and ammunition which you
have in your possession or which are owned by you" (emphasis
added). The notification further informed Mancevice that his
failure to do so would be a crime.
On September 10, four days after receiving the notice,
Mancevice went to the Barre police station and turned over
various firearms. He did not at that time turn over his license
to carry, nor any ammunition. On September 11, Mancevice
returned to the police station, where a Barre police officer,
William Recos, informed Mancevice that he still needed to turn
over his license to carry. Mancevice then tendered his license
to carry, stating he was doing so "under protest." After
4 Mancevice left, Recos printed a list of all firearms registered
to Mancevice and determined that there were six firearms still
outstanding. Recos thereafter received a report that Mancevice
was attempting to transfer certain firearms and ammunition to
others. Based on this information, Recos obtained a search
warrant for Mancevice's residence.
The Barre police executed the search warrant on September
12. The police found alleged ammunition strewn throughout
Mancevice's apartment, as well as pieces of firearms including
barrels, stocks, and receivers. During the search, Mancevice
arrived and was advised of his Miranda rights. Mancevice was
asked why he had not turned over his ammunition, and he
responded that he was not able to turn over "every little piece
that he owned." Mancevice was also asked what "without delay"
meant to him, and he stated "as soon as humanly possible."
Mancevice was charged with multiple counts of (1) failure
to surrender firearms and failure to surrender a license to
carry or possess firearms, G. L. c. 269, § 10 (i), as amended
through St. 2014, c. 284, § 90, and (2) possession of ammunition
without a firearm identification (FID) card, G. L. c. 269,
§ 10 (h) (1), as amended through St. 2014, c. 284, § 90.2
2These included twenty-one counts of failure to surrender a license to carry firearms or failure to surrender firearms, twenty of which were later dismissed, and two counts of
5 Mancevice filed two separate motions to dismiss the charges,
each of which raised arguments based on the Second Amendment,
and each of which was denied. In April of 2019 -- prior to the
Supreme Court's decision in Bruen -- Mancevice raised two
principal arguments: first, that G. L. c. 269, § 10 (i), which
criminalizes the knowing failure to surrender a suspended
license, is unconstitutional on its face, because it "violates
the Second Amendment's right to possess arms in the home for
self-defense." The focus of this argument was that the police
had not provided Mancevice with adequate time to comply with the
suspension order, because they had executed a search warrant, in
his home, within days of the suspension decision.3 Second,
Mancevice argued that § 10 (i) was unconstitutional as applied
to him, because the statute's requirement of surrender "without
delay" was too vague under the circumstances, and given the
Second Amendment rights at stake.
Subsequently, in 2022, after Bruen was decided, the
defendant filed a "renewed" motion to dismiss under the Second
possession of ammunition without an FID card, one of which was later dismissed.
3 Mancevice also argued that under G. L. c. 140, § 129D, as amended through St. 2014, c. 284, §§ 42-44, and G. L. c. 140, § 131 (f), as amended through St. 2018, c. 123, §§ 11-12, he was entitled to a ninety-day period to surrender his firearms, and therefore he could not have violated the surrender requirement as a matter of law.
6 Amendment. That motion focused on Bruen's holding that a
firearm regulation must be "consistent with the Nation's
historical tradition" of such regulation, Bruen, 597 U.S. at 24,
and argued that the prohibition on the unlicensed possession of
ammunition was not supported by historical analogs. That
argument was rejected by the motion judge, and is not pressed on
appeal. While the renewed motion also made a passing reference
challenging the "process" by which the license was suspended,
the renewed motion did not directly raise the argument the
defendant now presses -- the defendant did not argue below that
the "suitability" provisions of G. L. c. 140, §§ 131 (d) and
(f), granted unconstitutional discretion to the licensing
authority to suspend or to deny firearm licenses.
The case was tried to a jury on February 17, 2023. Prior
to trial, Mancevice filed a motion in limine "to exclude
purported opinion testimony, whether lay or expert, . . . that
the items seized . . . meet the definition of 'ammunition.'"
The Commonwealth did not object and this motion was allowed. At
trial, Officer Recos, who conducted the search of the
defendant's home, testified several times that he had found
"ammunition" in the home. The last of these references drew an
7 objection from defense counsel, although the resolution of that
objection is unclear on the record.4
After the Commonwealth rested, Mancevice filed a motion for
a required finding of not guilty on several grounds, including
that the Commonwealth had failed to adduce evidence that the
alleged ammunition was in fact ammunition. This motion was
denied. At the conclusion of trial, the jury returned a verdict
of guilty on the charge of possession of ammunition without an
FID card, and not guilty on the charge of failure to surrender a
license to carry. Mancevice appeals.
Discussion. The defendant raises four arguments on appeal:
(1) that the defendant's license was "suspended under a
discretionary 'unsuitability' statute that Bruen held
unconstitutional," (2) that under G. L. c. 140, § 129D, as
amended through St. 2014, c. 284, §§ 42-44, the defendant should
have been allowed ninety days to surrender his firearms and
4 During his direct examination, Recos testified without objection that he found "numerous amounts of ammunition" at Mancevice's residence. The prosecutor asked if Recos recalled "where the ammunition you found was," and Recos testified that it was strewn throughout the apartment. The prosecutor then placed a bag in front of the witness and asked: "How are you familiar with the contents of that bag?" Recos answered, "This is all ammunition that was seized the --" at which point he was cut off by defense counsel's objection. The attorneys conferred with the judge at sidebar; however, the bulk of their discussion, including the judge's ruling on the issue, was not included in the record. The physical evidence in the bag was admitted.
8 ammunition, (3) that it was error to allow Officer Recos's
testimony that he found "ammunition" during the search of the
defendant's home, and (4) that there was insufficient evidence
that the items seized met the legal definition of "ammunition."
We address each argument in turn.
1. Second Amendment arguments. The defendant argues that
§§ 131 (d) and (f) (as in effect in 2018) were unconstitutional
under Bruen, because they vested discretion in the licensing
authority to deny a license based upon "unsuitability," and thus
impinged on his right to bear arms.5 The defendant had
previously applied for, and received, a "license to carry"
firearms, as authorized by G. L. c. 140, § 131 (d), as amended
through St. 2018, c. 123, §§ 11-12. In 2018, § 131 (d) provided
that the "licensing authority"6 "may issue" a license to carry if
5 The defendant does not claim on appeal that the statute under which he was convicted, G. L. c. 269, § 10 (h) (1) (possession of ammunition without an FID card), is unconstitutional. Mancevice instead challenges §§ 131 (d) and (f), arguing that because the suspension of his license was unconstitutional, he could not be convicted of possessing ammunition unlawfully. On appeal the Commonwealth argues that because Mancevice never challenged the suspension of his license through the statutory appeal procedure, he cannot challenge the constitutionality of his conviction. Put differently, the Commonwealth's view is that Mancevice could be guilty of unlicensed possession even if the suspension of the license was unconstitutional. As we decide today that Mancevice's constitutional challenges to the suspension of his license fail, we need not address the Commonwealth's argument.
6 The licensing authority was "the chief of police or the board or officer having control of the police in a city or town,
9 certain conditions were met, including that "the applicant is
not a prohibited person as set forth in this section."7,8
Section 131 (d) went on to state, however, that the licensing
authority "may" deny or suspend a license to carry,
"if, in a reasonable exercise of discretion, the licensing authority determines that the applicant or licensee is unsuitable to be issued or to continue to hold a license to carry. A determination of unsuitability shall be based on: (i) reliable and credible information that the applicant or licensee has exhibited or engaged in behavior that suggests that, if issued a license, the applicant or licensee may create a risk to public safety; or (ii) existing factors that suggest that, if issued a license, the applicant or licensee may create a risk to public safety."
or persons authorized by them." G. L. c. 140, § 121, as amended through St. 2018, c. 123, §§ 1-7.
7 A "prohibited person" was one who falls into a number of categories, including persons convicted of a felony or various other offenses, persons committed for mental illness or alcohol or substance abuse, persons under twenty-one, aliens who were not permanent residents, persons subject to protection orders under G. L. c. 209A, persons who were the subject of an outstanding arrest warrant, persons dishonorably discharged from the military, fugitives from justice, and persons who renounced their U.S. citizenship. G. L. c. 140, § 131 (d), as amended through St. 2018, c. 123, §§ 11-12.
8 The Supreme Court's decision in Bruen rendered invalid the language in § 131 (d) that required that the applicant show "good reason" for the license to issue. See Bruen, 597 U.S. at 15 n.2, 71. Section 131 (d) was subsequently amended by St. 2022, c. 175, §§ 4-17A, and St. 2024, c. 135, § 49, and now does not impose a "good reason" requirement. See G. L. c. 140, § 131 (d).
10 G. L. c. 140, § 131 (d), as amended through St. 2018, c. 123,
§§ 11-12.9
Section 131 (d) thus granted explicit authority to suspend
the license to carry of an "unsuitable" person.10 And, § 131 (f)
addressed the question as well:
"A license issued under this section shall be revoked or suspended by the licensing authority, or his designee, upon the occurrence of any event that would have disqualified the holder from being issued such license or from having such license renewed. A license may be revoked or suspended by the licensing authority if it appears that the holder is no longer a suitable person to possess such license" (emphasis added).
G. L. c. 140, § 131 (f), as amended through St. 2018, c. 123,
§§ 11-12.
As indicated, the defendant argues that these two sections
of the Massachusetts statutes violated the Second Amendment,
both on their face and as applied to his circumstances. The
9 This section was also materially amended in 2022 by removing the "may issue" and "reasonable exercise of discretion" language, St. 2022, c. 175, §§ 7, 9, 10, such that § 131 (d) now states (in relevant part, after further amendments in 2024) that a licensing authority "shall issue" a license to carry "only if it appears that the applicant is neither a prohibited person nor determined to be unsuitable to be issued a license as set forth in . . . section 121F."
10Following the 2024 updates to the statutory scheme, the definition of unsuitability now states: "A determination of unsuitability shall be based on reliable, articulable and credible information that the applicant has exhibited or engaged in behavior that suggests that . . . the applicant may create a risk to public safety or a risk of danger to themselves or others." G. L. c. 140, § 121F (k).
11 thrust of his argument is that Bruen declared that all such "may
issue" statutory schemes are unconstitutional, because they
provide too much discretion to licensing authorities to deny
persons the ability to carry a firearm.11 As indicated, the
argument the defendant advances in this court is not the same
Second Amendment argument that he pressed below -- at most, the
argument he now presses was referenced so vaguely that it cannot
fairly be said to have been raised.12 Although not raised below,
we have in the past reviewed unpreserved claims that a charge
should have been dismissed for vagueness for a substantial risk
of a miscarriage of justice, see Commonwealth v. St. Louis, 473
Mass. 350, 355 (2015); Commonwealth v. Mienkowski, 91 Mass. App.
Ct. 668, 674 (2017), and we assume without deciding that the
same review applies to claims under the Second Amendment. "A
11The Massachusetts firearm licensing scheme in effect in 2018 also authorized the granting of FID cards, which allowed a person to possess a firearm but granted fewer privileges than a license to carry. G. L. c. 140, § 129B, as amended through St. 2018, c. 123, §§ 9, 10; G. L. c. 140, § 129C, as amended through St. 2014, c. 284, §§ 40, 41. Mancevice did not have an FID card, as his license to carry provided all the privileges of an FID card. See G. L. c. 140, § 131 (a), as amended through St. 2018, c. 123, §§ 11-12.
12In particular, the defendant never argued below, and did not argue to this court, that his actions did not meet the definition of "unsuitability" in § 131 (d). Nor did he or does he argue constitutional infirmity in the statute's definition of unsuitability; in particular, the defendant does not specifically argue that the statute is or was unconstitutional because the actions the statute defines as unsuitable are overbroad.
12 substantial risk of a miscarriage of justice exists when we have
a serious doubt whether the result of the trial might have been
different had the error not been made" (quotation omitted).
Commonwealth v. Curran, 488 Mass. 792, 794 (2021), quoting
Commonwealth v. Valentin, 470 Mass. 186, 189 (2014). We
conclude that there was no error and no substantial risk of a
miscarriage of justice here.
The defendant posits that the Massachusetts licensing
scheme (as of 2018) was "flatly unconstitutional under Bruen,
because the Bruen Court already found no historical analog for
. . . 'may issue' statutes" such as § 131 (d). This argument
challenges the Massachusetts statute on its face. The
defendant's reading of Bruen is incorrect.
Bruen struck down a New York license to carry statute under
which a firearm license applicant had to show, among other
things, that there was "proper cause" to obtain the license.
Bruen, 597 U.S. at 12, 71. The New York courts had equated the
term "proper cause" with a "special need for self-protection
distinguishable from that of the general community" (citation
omitted). Id. at 12. The Bruen Court held that such "proper
cause" restrictions on firearm licensing are unconstitutional,
because such regulations had no historical precedent from the
periods when the Bill of Rights and the Fourteenth Amendment to
the United States Constitution were adopted. See id. at 34-35,
13 38-39. In so holding, however, the Court was focused on New
York's "proper cause" requirement, and not on "may issue"
language in general. See id. at 71 ("New York's proper-cause
requirement violates the Fourteenth Amendment" [emphasis
added]). The Bruen court made it clear that firearm licensing
schemes generally are constitutional, as two of the six-person
majority emphasized in a separate concurrence. See id. at 79
(Kavanaugh, J., concurring) ("the Court's decision does not
prohibit States from imposing licensing requirements for
carrying a handgun for self-defense"). And footnote 1 of the
majority opinion itself canvassed existing State laws, and
indicated that the licensing schemes in at least three States
(Connecticut, Delaware, and Rhode Island) that contained
discretionary language, including a "suitability" requirement,
nevertheless were constitutional -- because those States did not
require applicants to show "proper cause," or some analogous
showing, before obtaining a license to carry. See, e.g., id. at
13 n.1, quoting Dwyer v. Farrell, 193 Conn. 7, 12 (1984) ("Three
States -- Connecticut, Delaware, and Rhode Island -- have
discretionary criteria but appear to operate like 'shall issue'
jurisdictions. . . . Although Connecticut officials have
discretion to deny a concealed-carry permit to anyone who is not
a 'suitable person,' . . . the 'suitable person' standard
precludes permits only to those 'individuals whose conduct has
14 shown them to be lacking the essential character of temperament
necessary to be entrusted with a weapon'").
Bruen thus simply does not hold that any licensing statute
that employs the language "may issue" is unconstitutional. It
is true that the Massachusetts statute, § 131 (d), had a "good
reason" requirement prior to the decision in Bruen. But that
provision has since been removed from the statute by amendment,
and that (former) provision is irrelevant to the issues the
defendant raises here. The defendant's license was not
suspended because he had not shown good cause to obtain or to
maintain a license; rather, the defendant's license was
suspended because of his actions, by which the chief of police
had deemed the defendant to be a risk to public safety.
Whereas the Supreme Court's Bruen decision does not aid the
defendant's facial challenge, the Supreme Court's recent
decision in Rahimi dooms it. As part of his facial challenge,
the defendant suggests that §§ 131 (d) and (f) must be struck
down because they were overbroad -- that is, that they were
unconstitutional in some of their applications, even if not
unconstitutional as applied to the defendant. But the Supreme
Court made clear in Rahimi that overbreadth doctrine does not
apply in this context; rather, to be unconstitutional on its
face "a defendant [must] 'establish that no set of circumstances
exists under which the Act would be valid.'" Rahimi, 602 U.S.
15 at 693, quoting United States v. Salerno, 481 U.S. 739, 745
(1987). This the defendant plainly cannot do. For example,
Rahimi itself validates a firearm regulation that "bars an
individual from possessing a firearm if [he is subject to a]
restraining order [that] includes a finding that he poses 'a
credible threat to the physical safety' of a protected person."
Rahimi, supra, quoting 18 U.S.C. § 922(g)(8)(C)(i). Consistent
with Rahimi, pursuant to the unsuitability provisions of
§§ 131 (d) and (f), a licensing authority could suspend or
revoke a license to carry where a license holder has recently
been determined to be a dangerous person in a restraining order
proceeding under G. L. c. 209A. As another example, the
statutes explicitly prohibit convicted felons from obtaining
licenses; again, such provisions have been approved by the
Supreme Court. See Rahimi, supra at 699, quoting District of
Columbia v. Heller, 554 U.S. 570, 626, 627, n.26 (2008) ("many
such prohibitions, like those on the possession of firearms by
'felons and the mentally ill,' are 'presumptively lawful'").
Sections 131 (d) and (f) are not unconstitutional on their face.
The defendant also purports to raise an "as applied"
challenge, but the argument he presents is no more than a
reprise of his facial challenge. He states that the defendant's
"unsuitability determination was made under a highly
discretionary standard that does not pass constitutional
16 muster." The defendant cites no additional case law, and no
additional facts, in support of this argument, and for the
reasons stated above it is incorrect. We note as well that it
is incorrect to say that the statute's unsuitability standard
(as of 2018) was "highly discretionary." To the contrary, the
statute specifically defined unsuitability, requiring, for
example, "reliable and credible information that the . . .
licensee has exhibited or engaged in behavior that suggests that
. . . the . . . licensee may create a risk to public safety."
G. L. c. 140, § 131 (d), as amended through St. 2018, c. 123,
§§ 11-12. This definition is narrow, specific, and dovetails
with the Supreme Court's approval, in Rahimi, of "firearm laws
[that] . . . prevent[] individuals who threaten physical harm to
others from misusing firearms." Rahimi, 602 U.S. at 690.13
Finally, the defendant does not argue that the facts of his case
do not meet the unsuitability standard or cannot be a
constitutional basis for suspension of his license. Indeed, the
13 Prior to Bruen, the Supreme Judicial Court, in Chief of Police of Worcester v. Holden, 470 Mass. 845 (2015), considered a challenge to a prior version of § 131 (d), which contained a less specific unsuitability standard. The defendant in Holden had his license to carry suspended on the grounds of unsuitability, based on an incident where the defendant engaged in domestic violence. Id. at 847-848. The Holden court ruled that § 131 (d) did not violate the Second Amendment, either on its face or as applied. Id. at 847. In so ruling the court rejected the argument that the prior version of § 131 (d) conferred excessive discretion on the licensing authority. See id. at 859-861.
17 briefs barely mention the facts that led to the license
suspension, and our record is incomplete on that issue. The
defendant has not carried his burden to show a Second Amendment
violation, let alone a substantial risk of a miscarriage of
justice.
2. Lawfulness of possession of ammunition. The defendant
next urges us to overturn his conviction on the grounds that it
was not unlawful for him to possess ammunition at the time when
the Barre police searched his residence, which was six days
after he received the license suspension notice by certified
mail. He raises two grounds for this claim: (1) that a "safe-
harbor" provision in G. L. c. 140, § 129D, as amended through
St. 2014, c. 284, §§ 42-44 (§ 129D),14 made it lawful for him to
possess ammunition during the ninety-day appeal period by G. L.
c. 140, § 131 (f), as amended through St. 2018, c. 123, §§ 11-12
(§ 131 [f]),15 and (2) that the requirement under § 129D to
surrender ammunition "without delay" was unconstitutionally
vague. We take each issue in turn.
a. Applicability of safe-harbor provision. To begin, the
defendant is incorrect that he was entitled to a ninety-day
14This safe-harbor provision also has been removed from the statute. See G. L. c. 140, § 129D.
15The appeal procedure is now contained within G. L. c. 140, § 121F (v) (2).
18 grace period before turning in his licenses and firearms. It is
true that as of 2018 there was a discrepancy in the statutes,
between §§ 129D and 131 (f). The Supreme Judicial Court
resolved that discrepancy, however, in Commonwealth v. Adams,
482 Mass. 514, 533-534 (2019). There the court harmonized
§§ 131 (f) and 129D by ruling that the licensing scheme gives a
licensing authority two options when suspending or revoking a
firearms license. Id. at 533. Under the first option, a
licensing authority can suspend a license and order immediate
surrender of firearms, in which case the licensee cannot obtain
a stay of the suspension and the surrender obligations even if
the licensee appeals the suspension under § 131 (f). Id. at
533-534. Alternatively, a licensing authority could suspend a
license without seeking immediate surrender of the licensee's
firearms, in which case a licensee could stay the obligation to
surrender firearms if the licensee appealed the suspension
order. Id. at 534.
The defendant argues that his obligation to turn over his
firearms "without delay" should have been stayed under the
circumstances, because (he claims) the licensing authority sent
his notice of the suspension only by certified mail, and thus
did not order "immediate surrender" per Adams. See Adams, 482
Mass. at 533. This argument fails for two reasons. First, the
defendant never appealed the suspension. Thus, regardless of
19 which method of revocation the licensing authority used, the
defendant had no basis for a stay under Adams. Second, the
Barre police in fact used the first Adams method and required
immediate surrender, as the certified letter sent to the
defendant required the defendant "to turn in . . . without
delay, your firearms license(s) and all firearms . . . and
ammunition." Thus, under no circumstance was the defendant
entitled to a stay of his obligation to turn over his ammunition
without delay.
b. Vagueness of § 129D. The defendant also argues that
"without delay," as used in § 129D, is unconstitutionally vague.
A statute is unconstitutionally vague if it does not provide
"(1) a reasonable opportunity for a person of ordinary
intelligence to ascertain what the statute prohibits; and
(2) comprehensible standards that limit prosecutorial and
judicial discretion and thus avoid discriminatory or arbitrary
enforcement." Commonwealth v. Brown, 481 Mass. 77, 84 (2018).
There is no such vagueness here, where "without delay" has a
common meaning that provides a person of ordinary intelligence a
reasonable opportunity to understand what is prohibited. See
id. "Without delay" means "immediately," or as near thereto as
can reasonably be accomplished. The defendant admitted as much
at the scene of the search, when he stated that "without delay"
20 meant "as soon as humanly possible." The term "without delay"
is not unconstitutionally vague.
3. Alleged improper testimony. The defendant also argues
that his conviction must be reversed because Officer Recos
testified that certain items seized during the search of the
defendant's residence were "ammunition." The defendant alleges
that this testimony was improper lay opinion, and that it
asserted his guilt as to the ultimate issue in the case. We
disagree.
First, the defendant is incorrect that his assented-to
motion in limine that was allowed prior to trial excluded
Recos's testimony. The defendant's motion in limine sought to
exclude opinion testimony only as to the ultimate issue in the
case -- that is, "purported opinion testimony, whether lay or
expert . . . that the items seized . . . meet the definition of
'ammunition.'" Leaving aside the question whether such a motion
in limine has merit, Recos's testimony that he was familiar with
the evidence before him, because it was "ammunition" seized from
the defendant, did not constitute "testimony . . . that the
items seized from Derek Mancevice meet the definition of
ammunition," and thus did not fall within the ambit of the
motion in limine.
Furthermore, although defense counsel did object on one
occasion to Recos's use of the term "ammunition," prior to that
21 objection Recos had testified at least two other times that he
found "ammunition" when searching Mancevice's apartment, without
objection. Thus, the additional reference to "ammunition" was
merely cumulative of evidence admitted without objection and was
not prejudicial. See Commonwealth v. Barnoski, 418 Mass. 523,
539 n.12 (1994).
4. Sufficiency of the evidence of ammunition. Finally,
the defendant argues that his conviction must be overturned
because the evidence was insufficient to prove that the items
seized from him met the legal definition of ammunition. In
reviewing the sufficiency of the evidence, we take the evidence
in the light most favorable to the Commonwealth, and determine
whether a rational jury could have found the requisite elements
of the crime beyond a reasonable doubt. Commonwealth v.
Latimore, 378 Mass. 671, 677-678 (1979).
Here, the evidence was sufficient to allow a rational jury
to find that the items seized were ammunition as defined by
G. L. c. 269, § 10 (o), as amended through St. 2014, c. 284,
§ 90. The Commonwealth had to show only that the items were
"cartridges or cartridge cases, primers (igniter), bullets or
propellant powder designed for use in any firearm, rifle or
shotgun," id., and the Commonwealth could do so by relying upon
"percipient evidence and the fact finder's common sense and life
experience." Commonwealth v. Velez, 82 Mass. App. Ct. 12, 18
22 (2012). Expert testimony was not required. See id. Here, the
items themselves were entered into evidence, without objection.
They included bags with manufactured labels stating "black rifle
powder," as well as a box of one hundred metal objects that
appear to be bullets. The items were placed in evidence bags,
and several were identified as ammunition by attached police
evidence labels, including labels describing "green box w/ 22
assort. rounds of ammo" and ".22 caliber rounds," among others.
Furthermore, the defendant essentially admitted at the scene of
the search that what was seized from his apartment was
ammunition by stating, in response to Officer Recos's question
why the defendant had not turned over his ammunition, that "he
wasn't able to get every little piece that he owned and turn it
in." Taking the evidence in the light most favorable to the
Commonwealth, a rational jury could find that the items met the
statutory definition of ammunition.
Judgment affirmed.
By the Court (Sacks, Englander & Grant, JJ.16),
Clerk
Entered: January 21, 2025.
16 The panelists are listed in order of seniority.