Massachusetts Criminal Defense Lawyer Blog

Massachusetts criminal defense lawyers defending gun charges must prove that the defendant did not exercise dominion and control over the firearm. If a firearm is not found on a defendant, the Commonwealth will argue that the defendant constructively possessed the firearm, either by arguing that the defendant had access to the firearm or that it was discarded prior to the police arriving. Massachusetts gun charges, of ="_blank">possession of a firearm without an FID card or unlawful discharge of a firearm, carry mandatory jail sentence, typically involve the prosecutor asking for a high bail and are cases that are a priority on the court docket.

In Commonwealth v. Mendes, the Massachusetts Appeals Court affirmed a conviction for possession of a firearm without an FID card and unlawful discharge of a firearm within 500 feet of a building after a trial in the New Bedford District Court.

Mendes involved a situation where an officer was on patrol, heard gun shots and saw the defendant running toward her; when the defendant saw the officer, he tried to hide and avoid the officer. The defendant ran around a car and was stopped by the officer and the officer testified that she noticed the smell of gunpowder. The gun was found underneath a minivan and police testify established that the defendant was scene in the area of the minivan.

The gun smelled as if it had been recently fired. The defendant was given a gunpowder residue test that came back negative and no fingerprints were found on the gun.

The Appeals Court found sufficient evidence to prove constructive possession based on the defendant's close proximity to the gun shots, his flight from the area, the officer's detection of the smell of gunpowder as she confronted the defendant, the defendant's presence in the area where the gun was found. This case seemed to present very little evidence that the defendant shot the firearm, and was not in the wrong place at the wrong time. A jury's verdict cannot be based on speculation or conjecture and it seems as though the jury assumed that the defendant fired the shots, despite the most compelling evidence, fingerprint evidence and gunpowder residue failing to connect the defendant to the gun. The defendant will likely seek further review of his conviction by the Massachusetts Supreme Judicial Court.