Commonwealth v. Jeffery P. Donnelly.

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-343

COMMONWEALTH

vs.

JEFFERY P. DONNELLY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant

was convicted of failing to surrender a revoked or suspended

license to carry a firearm or firearms in violation of G. L.

c. 269, § 10 (i). The defendant raises numerous issues on

appeal, none of which warrant reversal of his conviction. We

address each issue in turn.

1. Denial of motion to dismiss the complaint. On May 10,

2021, a clerk magistrate of the Springfield District Court

issued a criminal complaint charging the defendant with a

violation of G. L. c. 269, § 10 (i).1 Following his arraignment,

1The Commonwealth maintains that the defendant's failure to
include a copy of the criminal complaint in the record appendix
precludes us from reviewing his argument. While the
the defendant moved to dismiss the complaint, asserting, among

other things, that the complaint application failed to set forth

probable cause to believe that he had committed the charged

offense.2 After a nonevidentiary hearing, the motion was denied

in a margin endorsement. The defendant argues that the judge

erred in denying his motion to dismiss the complaint.

A motion to dismiss a complaint for lack of probable cause

is decided from the information within the "four corners" of the

complaint application. Commonwealth v. Humberto H., 466 Mass.

562, 565 (2013). The complaint application, like a grand jury

presentment, must contain sufficient evidence to establish the

identity of the accused and provide probable cause as to each

element of the crime charged. Commonwealth v. Leonard, 90 Mass.

App. Ct. 187, 190 (2016). Probable cause "exists where the

facts and circumstances . . . [are] sufficient in themselves to

warrant a [person] of reasonable caution in the belief that an

offense has been . . . committed" (quotations and citation

omitted). Commonwealth v. Coggeshall, 473 Mass. 665, 667

Commonwealth is correct that the defendant has the burden to
provide us with an adequate record to address his claims, we
conclude that the issue is properly before us.

2 We have not overlooked the additional arguments advanced
by the defendant in support of his motion to dismiss. However,
because they are not relevant to the validity of the criminal
complaint, we do not address them.

2
(2016). "We view the allegations set forth in support of

probable cause in the light most favorable to the Commonwealth."

Leonard, supra.

The police report submitted in support of the complaint

application set forth the following facts. On April 12, 2021,

Springfield police Deputy Chief Kent revoked the defendant's

license to carry firearms based on an unrelated criminal case.

The report listed twenty-six firearms that the defendant had not

turned over to the police. On May 7, 2021, Detective Shink of

the Springfield police department contacted the defendant by

calling his cell phone. During that conversation, the defendant

stated that "he would not surrender his firearms and [license to

carry] to the police." The defendant further stated that "he

was going to transfer his firearms to Vermont so that [the

Springfield police] could not obtain them." About twenty

minutes after that conversation concluded, Springfield police

Sergeant Podgurski called the defendant. During the ensuing

conversation, the defendant stated that "he felt that he was not

required to surrender his firearms and they were already in

Vermont." The last sentence in the police report states: "[The

defendant]'s story on the [whereabouts] of his firearms and

other related topics kept changing and again [he] refused to

comply with the order."

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A violation of the statute at issue here required the clerk

magistrate to find probable cause that the defendant knowingly

failed to surrender his license to carry a firearm or firearms

after his license was suspended or revoked. See G. L. c. 269,

§ 10 (i). The facts described above, particularly the

defendant's statement that he would not surrender his license or

firearms to the police and his conflicting statements regarding

the location of the firearms, were sufficient to establish

probable cause to believe that the defendant had violated the

statute. Accordingly, the judge did not err in denying the

motion to dismiss.

2. Violation of the defendant's right to confront

witnesses against him. Detective Shink authored the report

submitted in support of the complaint application and, as

previously noted, spoke with the defendant about surrendering

both his license to carry a firearm and his firearms. However,

Detective Shink did not testify at trial. When the parties

appeared in court for trial on April 28, 2022, the defendant

learned that Detective Shink was on long-term leave from service

due to an injury and, therefore, was not available. The

defendant objected and informed the court that he had intended

to "grill" the detective and his absence placed the defendant at

a disadvantage. Ultimately, at the defendant's request, the

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trial was continued to permit the defendant to file a motion to

dismiss based on the detective's unavailability. That motion

was filed and subsequently denied after a hearing held on May 6,

2022.

The defendant argues that his motion to dismiss should have

been allowed because the failure to produce Detective Shink

violated his Sixth Amendment right to confront witnesses against

him. Apart from the fact that the defendant never subpoenaed

Detective Shink, as he was free to do, there was no

constitutional violation where, as here, none of the detective's

out-of-court statements were admitted in evidence. See

Commonwealth v. Caruso, 476 Mass. 275, 294 (2017).3

3. Sufficiency of the evidence. The defendant's claim

that the evidence was insufficient to support his conviction

beyond a reasonable doubt also fails. Viewing the evidence in

the light most favorable to the Commonwealth, see Commonwealth

v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have

reasonably found that the defendant knew he was required to

surrender his license and firearms to the Springfield police

department. Deputy Chief Kent testified that he signed a

Furthermore, even if a constitutional violation had
3

occurred, the appropriate remedy would be to grant a new trial
and not to dismiss the complaint. In any event, the defendant
is not entitled to any relief as there was no error.

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"suspension notice" regarding the defendant's license to carry a

firearm on April 12, 2021.4 Sergeant Podgurski testified that he

spoke with the defendant on the telephone on May 7, 2021, and

informed him that he had to surrender his license and firearms

and, if he did not comply, a warrant would be issued. According

to the Sergeant, the defendant replied that he would not

surrender his license or firearms and claimed that he was not

required to do so. The Sergeant also related that the defendant

provided conflicting information about the location of the

firearms, and he testified that when he pressed the defendant

for an answer, the defendant said the firearms had been

transferred to Vermont but would not provide an address or

otherwise specify their whereabouts. Ultimately, the defendant

surrendered his license after he was ordered by the court to do

so, and the firearms were retrieved by Springfield police

officers in Vermont.

The defendant argues that the evidence is insufficient

because 1) he was not notified in writing of the fact that his

4 Although not relevant to the question whether the
Commonwealth had met its burden of proof, we note that the
defendant raised the question whether Deputy Chief Kent had the
authority to suspend the license to carry on May 7, 2021, the
day he was notified of the suspension, if, as the defendant
contended, that license had expired on April 24, 2021. Deputy
Chief Kent responded that he believed he had such authority and
explained that there is a grace period following the expiration
date during which the license remains valid.

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license had been suspended or revoked, 2) at the time his

license was revoked it had already expired, and 3) he had

transferred his firearms to Vermont and therefore, in his view,

any refusal to surrender them to the police in Massachusetts did

not constitute a criminal offense. The problem with the

defendant's argument is that none of the points he raises

diminish the sufficiency of the Commonwealth's evidence.

Rather, they provide a rationale or excuse for the defendant's

conduct. The testimony of the two officers, Deputy Chief Kent

and Sergeant Podgurski, established that the defendant knew his

license had been suspended and, was informed that he was

required to surrender the license and the firearms in his

possession, and that he refused to comply. Nothing more was

required for the Commonwealth to meet its burden of proving the

offense beyond a reasonable doubt.

4. Jury instructions. The defendant next contends that

the judge improperly instructed the jury with respect to the

elements of the crime. Because the defendant raised a timely

objection to the instruction, we review his claim for

prejudicial error. Commonwealth v. Allen, 474 Mass. 162, 168

(2016). We discern none. The judge largely instructed the jury

in accordance with the Criminal Model Jury Instructions for use

in the District Court. See Commonwealth v. Odgren, 483 Mass.

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41, 54 (2019) (not error for judge to give instruction in

accordance with operable model jury instructions). The judge

instructed the jury as follows:

"To prove the defendant guilty of this offense the
Commonwealth must prove two things beyond a reasonable
doubt: First, that the defendant knew that his license to
carry, FI -- license to carry/firearm ID card had been
revoked or suspended; and [t]hat the defendant failed to
surrender without delay to the police department where he
lives his license to carry a firearm or firearm
identification card or firearms, rifles, shotguns or
machine guns. The Commonwealth is required to prove beyond
a reasonable doubt that the defendant knew that his license
to carry, firearm identification ID card was suspended or
revoked either by having received a copy of the suspension
revocation notice or by having learned of it in some other
way."

The judge then continued:

"The defendant is charged with failing to surrender
his license to carry a firearm or his firearm
identification card or his firearms, rifles, shotguns or
machine guns after having his license to carry a firearm or
firearm identification card suspended or revoked. To prove
the defendant guilty of this offense the Commonwealth must
prove two things beyond a reasonable doubt: First, that
the defendant knew his license to carry a firearm ID card
had been revoked or suspended; and [s]econd, that the
defendant failed to surrender without delay to the police
department where he lives his license to carry a firearm or
firearm identification card or firearms, rifles, shotguns
or machine guns. The Commonwealth is required to prove
beyond a reasonable doubt that the defendant knew his
license to carry firearm ID card was suspended or revoked
either by having received a copy of the suspension
revocation notice or by having learned of it in some other
way. You should consider all of the evidence and any
reasonable inferences you choose to draw from that evidence
to determine the extent of the defendant's knowledge at the
time when it is alleged his license to carry a firearm FID
card was suspended or revoked."

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The thrust of the defendant's challenge to the jury

instructions is that the jury was not informed of his theory of

the case, which was that he could not be found guilty unless he

received a written notice of suspension or revocation of his

license, and that he did not commit an offense in Massachusetts

because he brought his firearms to Vermont. However, the judge

was not required to frame the instruction in a manner that

reflects the defendant's interpretation of the statute or his

theory of the defense. See Commonwealth v. Doughty, 491 Mass.

788, 801 (2023). The instructions, as given, accurately defined

the elements of the offense and properly conveyed the applicable

legal standards. Accordingly, there was no error.

5. Second Amendment violation. The defendant's final

argument is that the statute violates his right to bear arms

under the Second Amendment to the United States Constitution.

Relying on New York State Rifle & Pistol Association. v. Bruen,

591 U.S. 1, 140 S. Ct. 1891 (2020), the defendant claims that

the statute unlawfully interferes with his ability to possess

and carry firearms. We are not persuaded by the defendant's

assertion that the Supreme Court's decision in Bruen has

resulted in a wholesale invalidation of the licensing scheme in

Massachusetts and, more particularly, we are not persuaded that

the statute in question is unconstitutional. Accordingly, we

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reject the claim that the decision in Bruen requires us to

vacate the defendant's conviction.

Judgment affirmed.

By the Court (Vuono,
Massing & Toone, JJ.5),

Clerk

Entered: September 13, 2024.

5 The panelists are listed in order of seniority.

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