A Massachusetts defendant convicted of possession of a firearm without an FID card was overturned by the Massachusetts Appeals Court as the Commonwealth failed to prove that the gun was a firearm under the statute. The case decided by the Massachusetts Appeals Court, Commonwealth v. Hollister, involved a case where the defendant raised on appeal that the Commonwealth did not prove that the firearm fell within the definition of a firearm under Massachusetts gun law. Under Massachusetts General Laws, Chapter 140 Section 121 a firearm is defined as follows: 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 16 inches or 18 inches in the case of a shotgun as originally manufactured.
The Commonwealth must prove that the firearm is capable of discharging a bullet. In the Hollister case, the Commonwealth relied exclusively on the ballistic certificate which was an affidavit from a ballistics expert stating that the gun met the definition under the statute and was test fired and found to be in working order. Prior to the United States Supreme Court decision in Melendez-Diaz v. Massachustts, 557 U.S. ___, (June 25, 2009), prosecutors were allowed to prove elements of cases, including drug cases and guns cases by way of affidavit. The Commonwealth relied on the statute that allowed the affidavit of the ballistics expert to be substituted for live testimony under Massachusetts General Laws.
The Commonwealth did not present any live testimony from any witnesses that verified that the gun was working. Hollister's criminal lawyer objected to the introduction of the ballistics certificate under Sixth Amendment Confrontation grounds and the case of Crawford v. Washington, 541 U.S. 36 (2004). The Appeals Court held that under and the recently decided Melendez-Diaz decision from the United States Supreme Court that the defendant was denied his right of confrontation under the Sixth Amendment.
The court found that the denial of the defendant's right of confrontation was not harmless error and reversed the defendant's gun possession conviction. This case demonstrates the importance of hiring an experienced Massachusetts criminal defense lawyer as the defendant was able to prevail on appeal because his lawyer preserved at trial his objection to the improperly admitted evidence.
