Commonwealth v. Dwight Landry.

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-1082

COMMONWEALTH

vs.

DWIGHT LANDRY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the

defendant, Dwight Landry, was convicted of carrying a firearm

without a license.1 On appeal, he claims that (1) the judge

failed to instruct the jury that the Commonwealth must prove

that he lacked a license to carry a firearm, a claim the

Commonwealth concedes, and (2) the evidence was insufficient.

He also raises a number of constitutional claims. We vacate the

judgment and remand the matter to the District Court to allow

the Commonwealth to retry the defendant if it so chooses.

1The jury found the defendant not guilty of carrying a
loaded firearm without a license.
Background. The jury could have found the following facts.

On July 14, 2019, at approximately 1 P.M., Townsend police

officer Christopher Low stopped the defendant for speeding. Low

learned that the defendant had an outstanding default warrant

and arrested him. A search incident to arrest yielded a

necklace, wallet, jewelry, and cell phone. During booking, the

defendant said that he was wearing "an antique revolver from his

grandfather" around his neck. He said that he "just wanted to

make [the officers] aware of [the revolver] so that [they] could

properly take care of it." Low recovered a "Derringer-type

firearm," with a pearlescent white handle, "suspended from a

necklace in [a] small, leather holster that was around [the

defendant's] neck." Low described the revolver as a "Derringer-

type pistol" based on its size, shape, "stubby" grip, and

"smaller" barrel. Inside the revolver, there was live

ammunition and one spent shall casing, which Sergeant George

Reidy2 removed.

A State police ballistician test fired the revolver using

one of the live rounds of ammunition recovered from the cylinder

and concluded that it was "capable of discharging a shot." He

noted that the revolver was a North American Arms brand .22

2 At the time of the arrest, Reidy was a patrol officer.

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caliber Magnum mini revolver, and that it met the legal

definition of a firearm.

Discussion. 1. Jury instructions. Here, the Commonwealth

agrees with the defendant's claim that the judge did not

instruct the jury that the Commonwealth must prove that he did

not have a license to carry a firearm. And, the Commonwealth

did not present any evidence that the defendant was in fact

unlicensed. "[W]e therefore set aside [the] verdict without

further discussion and remand for further proceedings."

Commonwealth vs. Noguera, Supreme Judicial Ct., No. SJC-13045,

slip op. at 3 (Sept. 24, 2025), citing Commonwealth v. Guardado,

493 Mass. 1, 2-3 (2023), cert. denied, 144 S. Ct. 2683 (2024).

2. Sufficiency of evidence. The defendant next argues

that the evidence was insufficient to prove that he knowingly

possessed a firearm. He contends that the revolver "was not a

conventional firearm with obvious dangers," and that the

Commonwealth was thus required to prove that he knew it met the

legal definition of a firearm. He claims that it was "a small,

decorative ornament used as jewelry" rather than a "conventional

firearm." We are not persuaded. When reviewing a claim of

insufficient evidence, we view the evidence in the light most

favorable to the Commonwealth and determine whether it, together

with any inferences permissibly drawn therefrom, is sufficient

to permit the jury to find each essential element of the crime

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charged beyond a reasonable doubt. See Commonwealth v.

Latimore, 378 Mass. 671, 676-677 (1979). To prove that a

defendant knowingly possessed a firearm, "the Commonwealth must

prove the defendant knew that the weapon was a firearm 'within

the generally accepted meaning of that term.'" Commonwealth v.

Marrero, 484 Mass. 341, 344 (2020), quoting Commonwealth v.

Sampson, 383 Mass. 750, 762 (1981). "A firearm is defined as 'a

pistol, revolver or other weapon of any description, loaded or

unloaded, from which a shot or bullet can be discharged and of

which the length of the barrel or barrels is less than [sixteen]

inches or [eighteen] inches in the case of a shotgun.'"

Commonwealth v. Watkins, 98 Mass. App. Ct. 419, 421-422 (2020),

quoting G. L. c. 140, § 121. "[W]here 'a conventional firearm

with its obvious dangers is involved, the Commonwealth need not

prove that a defendant knows the exact capabilities or

characteristics of the gun which make it subject to

regulation.'" Watkins, supra at 423, quoting Commonwealth v.

Papa, 17 Mass. App. Ct. 987, 987-988 (1984).

Here, there was ample evidence that the revolver was a

conventional firearm with obvious dangers, and that the

defendant knowingly possessed it. The revolver was a .22 Magnum

caliber mini revolver manufactured by North American Arms. Its

appearance was consistent with that of a small firearm, having a

barrel, grip, handle, cylinder, hammer, and trigger. Police

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witnesses described it as a "firearm," "weapon," "pistol,"

"revolver," "mini revolver," and "Derringer." Further, the

revolver was loaded with four live rounds of ammunition and

contained one spent casing. Reidy had to make it "safe" at the

police station by removing the live ammunition. The

ballistician explained how the revolver operated, including that

it discharged a bullet when fired, and thus met the legal

definition of a firearm. In addition, the defendant told

officers during booking that he was carrying "an antique

revolver from his grandfather" around his neck.3 In the light

most favorable to the Commonwealth, the jury could reasonably

conclude that the revolver was "a firearm 'within the generally

accepted meaning of that term'" (citation omitted), Marrero, 484

Mass. at 344, as well as "a conventional firearm with its

obvious dangers" (citation omitted). Watkins, 98 Mass. App. Ct.

at 423.

3. Constitutional claims. The defendant raises several

constitutional claims, many of which were not raised or

preserved in the District Court.4 Generally, "[w]e do not reach

3 Defense counsel conceded at oral argument that the firearm
is not an antique subject to the licensure exception under G. L.
c. 140, § 121.

4 Specifically, the defendant claims that (1) the Supreme
Judicial Court "redefin[ed]" G. L. c. 269, § 10 (a), and thereby
exceeded the scope of the judicial power; (2) § 10 (a) violates
the due process clause; (3) the mandatory minimum sentence set

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constitutionally based issues when there is a statutory or other

nonconstitutional basis on which the case can be decided."

Bynum v. Commonwealth, 429 Mass. 705, 710 (1999). We also

"generally decline to consider constitutional issues for the

first time on appeal in order to avoid an unnecessary

constitutional decision." Commonwealth v. Castro, 99 Mass. App.

Ct. 502, 511-512 (2021), quoting Commonwealth v. Guzman, 469

Mass. 492, 500 (2014). Considering these principles, and our

conclusion that the defendant is entitled to a new trial, we

decline to address the defendant's constitutional claims.

Conclusion. The judgment is vacated, the verdict set

aside, and the matter remanded to the District Court to allow

the Commonwealth to retry the defendant if it so chooses.

So ordered.

By the Court (Blake, C.J.,
Desmond & Singh, JJ.5),

Clerk

Entered: October 2, 2025.

forth in § 10 (a) is cruel and unusual punishment; and (4) § 10
(a) violates the Second Amendment to the United States
Constitution.
5 The panelists are listed in order of seniority.

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