COMMONWEALTH vs. AMAURY REYES.

CORDY, J. The defendant, Amaury Reyes, was convicted of improperly carrying a firearm in a motor vehicle in violation of G. L. c. 140, § 131C (a) (carrying statute), and unlawfully storing a firearm (after leaving it in his motor vehicle) in violation of G. L. c. 140, § 131L (a) and (b) (storage statute). On appeal, the defendant argues that the storage statute is unconstitutionally vague in violation of his right to due process of law. He also contends that if the storage statute requires that a firearm stored in a locked motor vehicle be rendered further inoperable by locking it in an additional container or through the use of a tamper-resistant trigger lock, it unlawfully hinders his right to use the firearm in self-defense. Additionally, the defendant posits that there was insufficient evidence at trial to support his convictions under both the storage and carrying statutes. Finally, he asserts that the judge's jury instruction on the elements of the storage statute was deficient in that it failed to provide guidance on what qualifies as a "locked container." Based on these errors, the defendant asserts that he is entitled to either directed verdicts in his favor or a new trial.

We conclude that the defendant's arguments with respect to the constitutionality of the storage statute are without merit: the statute is neither impermissibly vague nor violative of his right to self-defense under the Second Amendment to the United States Constitution. We also conclude, however, that the evidence was insufficient to support the defendant's conviction under the carrying statute and he is entitled to a directed verdict of not guilty on that charge. Further, because the judge did not adequately instruct the jury regarding what qualifies as a "locked container," we reverse his conviction under the storage statute and remand the case to the District Court for a new trial with

Page 247

directions to the trial judge to instruct the jury in a manner consistent with this opinion.

1. Background. The jury could have found the following facts. [Note 1] The defendant was a correctional officer at the Essex County house of correction in Middleton. He had a class A license permitting him to carry a firearm for all lawful purposes. See G. L. c. 140, § 131 (a). On April 10, 2010, the defendant drove from his home to work, during which time he carried his personal firearm with him in a holster. There was no one else in the automobile when he drove to work. When the defendant arrived at the house of correction, he parked his motor vehicle in the employee parking lot directly in front of the entrance to the facility. He proceeded to an exterior window where one could obtain a gun locker key for the storage of his firearm during his work shift. All the lockers were full. He returned to his vehicle, removed the firearm and holster from his person, placed them in the glove box, and locked the vehicle. [Note 2]

On returning to the facility, the defendant was confronted by internal affairs officers, who asked if they could search his vehicle. The defendant agreed to the search. The officers asked the defendant whether there was anything in his vehicle about which they should be concerned. The defendant replied that his firearm was in the glove box of his vehicle. They asked if the firearm was outfitted with a cable locking device. The defendant replied that it was not. The officers and the defendant then walked back to the parked vehicle where the defendant unlocked it with a remote opener. The officers entered the vehicle from the passenger side, opened the glove box, and retrieved the firearm in its holster. The firearm contained a loaded magazine, but no round in the chamber.

On April 26, 2010, complaints issued from the Salem District Court, charging the defendant with violating the carrying and storage statutes. The defendant filed a motion to dismiss on

Page 248

April 15, 2011. The motion was heard and denied immediately prior to the defendant's jury trial on April 26, 2011. At the close of the Commonwealth's case, the defendant moved for required findings of not guilty. His motion was denied. Thereafter, the jury returned guilty verdicts on both charges. The defendant filed a timely notice of appeal. We transferred the defendant's appeal to this court on our own motion. [Note 3]

2. Discussion. a. Void for vagueness. The storage statute provides:

"It shall be unlawful to store or keep any firearm, rifle or shotgun including, but not limited to, large capacity weapons, or machine gun in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user. For purposes of this section, such weapon shall not be deemed stored or kept if carried by or under the control of the owner or other lawfully authorized user." (Emphasis added.)

The defendant argues that the statute fails to make clear what qualifies as being "secured in a locked container," leaving gun owners without guidance on how to store their firearms properly and law enforcement officials without criteria for knowing when the statute has been violated. Consequently, it is void for vagueness. We are not persuaded. The text, legislative history, related statutory and regulatory provisions, and other secondary materials reflect a common understanding at least as to a core set of containers that when used properly ensure gun owners that they are properly storing their firearms.

The principles of the vagueness doctrine are well settled in our law. A basic tenet of due process requires that a criminal statute be sufficiently clear to give notice of the prohibited conduct. See Commonwealth v. Bohmer, 374 Mass. 368, 371-372 (1978). "Penal statutes must 'define the criminal offense with sufficient definitiveness that ordinary people can understand

Page 249

what conduct is prohibited.' " Commonwealth v. Zubiel, 456 Mass. 27, 30 (2010), quoting Commonwealth v. Twitchell, 416 Mass. 114, 123 (1993).

Due process also mandates that no statute have such a standardless sweep that arbitrary and discriminatory enforcement by the police and the courts is permitted. See Grayned v. Rockford, 408 U.S. 104, 108-109 (1972); Commonwealth v. A Juvenile, 368 Mass. 580, 595 n.15 (1975). "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large." Smith v. Goguen, 415 U.S. 566, 573 n.9 (1974), quoting United States v. Reese, 92 U.S. 214, 221 (1875).

Proscribed conduct, however, is not always capable of precise legal definition. Jaquith v. Commonwealth, 331 Mass. 439, 442 (1954). Accordingly, legislative language need not be afforded "mathematical precision" in order to pass constitutional muster. Commonwealth v. Bohmer, supra at 372. See Grayned v. Rockford, supra at 110. A statute is not vague "if it requires a person to conform his conduct to an imprecise but comprehensible normative standard." Commonwealth v. Orlando, 371 Mass. 732, 734 (1977). Its language will be adequate if it "conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice." Commonwealth v. Adams, 389 Mass. 265, 270 (1983), quoting Commonwealth v. Jarrett, 359 Mass. 491, 496-497 (1971). Uncertainty as to whether marginal offenses are included within the coverage of a statute does not render it unconstitutional if its scope is substantially clear. See United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 579 (1973); Commonwealth v. Jarrett, supra. Moreover, a law is not vague if its meaning is ascertainable by reference to similar or related statutes, and "even a vague statute may be made constitutionally definite by giving it a reasonable construction." Commonwealth v. Kenney, 449 Mass. 840, 851 (2007), quoting Commonwealth v. Arthur, 420 Mass. 535, 539 (1995).

We begin by acknowledging that the term "secured in a locked container" is not further explicated by the statute. However, even in the absence of further definition, the statute can be

Page 250

"interpreted according to the intent of the Legislature ascertained from all [the statute's] words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated." Hanlon v. Rollins, 286 Mass. 444, 447 (1934).

Massachusetts courts have consistently noted that the underlying purpose of firearms control legislation is to assuage "the societal concern with weapons reaching the hands of unauthorized users," Jupin v. Kask, 447 Mass. 141, 154 (2006), and "to prevent the temptation and the ability to use firearms to inflict harm, be it negligently or intentionally, on another or on oneself." Commonwealth v. Lee, 10 Mass. App. Ct. 518, 523 (1980). See Ruggiero v. Police Comm'r of Boston, 18 Mass. App. Ct. 256, 258 (1984) ("goal of firearms control legislation is to limit access to deadly weapons by irresponsible persons"). The Legislature has attempted to effectuate this purpose through the enactment of a wide ranging, but coherent, regulatory scheme that includes licensing requirements for the sale and possession of firearms and ammunition. Id. at 258-259 & n.3 (collecting statutory provisions regulating firearms).

The storage statute, enacted in 1998, [Note 4] plays an important role in this regulatory scheme. Its legislative history leaves no doubt that the measure was intended to prevent accidental injuries and deaths resulting from firearms falling into the hands of children [Note 5]

Page 251

and other unauthorized users, by criminalizing negligent storage. [Note 6] Commonwealth v. Patterson, 79 Mass. App. Ct. 316, 319 (2011) (purpose of storage statute is to guard against use of firearms by "unauthorized, incompetent, or irresponsible persons"). In furtherance of its purpose, the storage statute requires that gun owners utilize one of two lawful and comparable storage alternatives when firearms are not in their physical possession. A gun owner can comply with the statute by making the firearm mechanically inoperable through the use of a tamper-resistant mechanical lock, or by restricting physical access to the firearm by securing it in a locked container sufficient to keep it out of the hands of an unauthorized person.

In light of its purpose, we discern significance in the Legislature's use of the word "secured" (rather than "stored" or "placed") as it relates to "locked container." That is, in order to prevent children and other unauthorized persons from gaining access to firearms and harming themselves or others, the "locked container" must make the firearm "secure." [Note 7] See

Page 252

Commonwealth v. Parzick, 64 Mass. App. Ct. 846, 850 (2005); State v. Wilchinski, 242 Conn. 211, 225 (1997) (construing "secure" to mean "preventing minors from gaining access to guns and on preventing them from being able to misuse the weapon"). In this regard, we agree with the Appeals Court that, as a general proposition, to be secure, "guns [must] be maintained in locked containers in a way that will deter all but the most persistent from gaining access." Commonwealth v. Parzick, supra (door lock that was easily defeatable by using "bobby pin" did not prevent access to unauthorized persons other than owner and therefore was "not secure").

What then qualifies as a securely locked container? At a minimum, to be secure, any qualifying container must be capable of being unlocked only by means of a key, combination, or other similar means. 18 U.S.C. § 921(a)(34)(C) (2006) (requiring "secure gun storage or safety device" be designed to unlock only by means of key, combination, or other similar means). Beyond this requirement, the types of containers that might qualify are plainly varied. Although not enumerated in the storage statute itself, several types of qualifying containers are identified in other Massachusetts and Federal statutes regulating the storage of firearms. These provisions provide significant guidance on the subject, and we can presume that gun owners are familiar with them because in order to obtain either a firearm

Page 253

identification card or a license to carry a firearm in Massachusetts, a prospective gun owner must receive a basic firearm safety certificate after completing a course approved by the colonel of the State police. The curriculum of that course must cover "(a) the safe use, handling and storage of firearms; (b) methods for securing and childproofing firearms; (c) applicable laws relating to the possession, transportation and storage of firearms; and (d) knowledge of the operation, potential dangers and basic competency in the ownership and usage of firearms" (emphasis added). G. L. c. 140, § 131P (b).

Statutory and regulatory references to acceptable containers include safes, [Note 8] weapon boxes, [Note 9] locked cabinets, [Note 10] gun cases, [Note 11] lock boxes, and locked trunks of vehicles. [Note 12] A leading secondary source, Law Enforcement Guide to Firearms Law (20th ed.

Page 254

2012), published by the Municipal Police Institute, Inc., [Note 13] states that a securely locked container can include a soft gun case secured with a padlock, "as well as an expensive gun safe," and that even "glass front furniture style gun cabinets are acceptable providing that they are capable of being locked." Id. at 93. [Note 14]

In sum, these references are sufficient to establish a common understanding and practice regarding the secure storage of firearms in locked containers, against which to measure conduct proscribed under the storage statute. As such, they dispose of the defendant's vagueness challenge. Commonwealth v. Orlando, 371 Mass. 732, 734 (1977) (law not vague if it requires person to conform his conduct to imprecise but comprehensible normative standard); Commonwealth v. Jarrett, 359 Mass. 491, 496-497 (1971) (uncertainty as to whether marginal offenses are included within coverage of statute does not render it unconstitutional if its scope is sufficiently definite).

This is not to say that locked containers beyond those types referenced in statutes do not qualify as secure under the storage statute. Ultimately, the matter is one of fact for a properly instructed fact finder to determine at trial.

In the case before us, we have two potentially qualifying locked containers, a locked motor vehicle and a locked (or unlocked) glove compartment in a locked motor vehicle. With respect to the motor vehicle itself, we look at the particular manner in which the Legislature has dealt with the possession and transportation of firearms in motor vehicles. See generally

Page 255

G. L. c. 140, § 131C. A class A license holder can of course carry a loaded firearm "under [his] direct control" in a vehicle. The question, however, is whether the Legislature intended that the motor vehicle itself would be a securely locked container under the storage statute when a firearm is kept there and not under the owner's direct control. The other provisions of § 131C lead us to conclude that the Legislature did not. Section 131C (b), relating to the possession of firearms in motor vehicles by class B license holders, requires that the weapon be "contained within a locked trunk . . . or in a locked case or other secure container." Similarly, § 131C (c), relating to the possession of large capacity rifles and shotguns in motor vehicles by class A and class B license holders, provides that they must be "contained within the locked trunk of such vehicle or in a locked case or other secure container." A contextual reading of these statutory provisions, focused particularly on firearms in motor vehicles, leads us to conclude that the Legislature did not consider a locked motor vehicle itself to be a secure container for the storage of firearms. [Note 15]

This does not resolve whether a locked glove compartment might be adequate under the storage statute. We are of the view that it might depending on the particular factual circumstances including the nature of the locking mechanism, whether the

Page 256

motor vehicle was also locked and alarmed, and ultimately whether in the circumstances it was adequate to "deter all but the most persistent from gaining access." This is a question of fact, properly decided by the fact finder at trial.

b. Second Amendment violation. The defendant contends that the storage statute violates his constitutionally protected right to self-defense as explicated by the Supreme Court in District of Columbia v. Heller, 554 U.S. 570, 635 (2008) (District of Columbia's ban on handgun possession in home and requirement that lawfully owned firearms be rendered inoperable in home violated Second Amendment's individual right to possess firearms for self-defense), and McDonald v. Chicago, 130 S. Ct. 3020, 3042, 3050 (2010) (Second Amendment right to bear arms applicable to States). More specifically, he asserts that requiring further locking mechanisms or security measures on a firearm already stored in a locked motor vehicle substantially defeats a person's right to self-defense by preventing immediate access to that firearm.

In addressing the defendant's argument, we agree with his observation that our decision in Commonwealth v. Runyan, 456 Mass. 230 (2010) (Runyan), was limited to whether the storage statute infringed on one's right to possess a firearm for self-defense in the home. [Note 16] Our decision in Runyan did not, however, address whether Heller applied with equal force to circumstances outside the home, nor have we ever specifically held this to be the case. We decline to do so here. [Note 17]

Page 257

Yet, even assuming for the purposes of this analysis only that Heller applied to firearm possession outside the home, our analysis in Runyan, supra at 235- 237, leads us to conclude that the storage statute would pass constitutional muster. The storage statute plainly does not bar the defendant from carrying a firearm on his person or under his control without a trigger lock or the need to secure it in a locked container either inside or outside of a motor vehicle. [Note 18] See G. L. c. 140, § 131C (a)-(b) (specifically permitting gun owner holding class A license to carry to possess or carry firearm on his person for all lawful purposes). Here, as in Runyan, the storage statute would not infringe on the defendant's Second Amendment right to self-defense because it only imposes storage restrictions where the firearm is not within the gun owner's possession or control.

Moreover, given our conclusion in Commonwealth v. McGowan, ante 232, 244 (2012), that the restrictions imposed by the storage statute fall outside the scope of protection afforded by the Second Amendment and that rational basis is the appropriate level of scrutiny, we assume that the storage statute would also pass that low threshold in a context outside the home, where the State's interest in preventing unauthorized access to firearms is arguably even greater. Consequently, we reject the defendant's contention that the storage statute infringes on his right to self-defense in this context.

c. Sufficiency of the evidence. The defendant next contends that there was insufficient evidence at trial to support his convictions under the carrying and storage statutes. We discuss each in turn.

The carrying statute provides in relevant part that "no person carrying a loaded firearm . . . shall carry the same in a vehicle unless such firearm while carried therein is under the direct control of such person." The defendant contends that there was no evidence that his firearm was out of his possession (or his direct control) when he traveled to work in his vehicle. Consequently, he was carrying his firearm consistent with the requirements

Page 258

of the statute. The Commonwealth, on the other hand, argues that so long as the firearm remained in the defendant's vehicle -- even after he had left and locked it -- the firearm was being carried by him in a vehicle within the meaning of the statute. And, because the firearm was no longer under his direct control, he violated the carrying statute. We agree with the defendant.

The issue in dispute is not a factual one. There was no evidence presented at trial that the firearm was out of the defendant's control while he was traveling in his motor vehicle. Indeed, all of the evidence was to the contrary. The only question, then, is whether the carrying statute applies once the defendant leaves his vehicle and leaves the firearm in it. Our reading of the interrelationship between the carrying and storage statutes leads us to conclude that it does not. [Note 19]

Once the defendant left his motor vehicle and the firearm in it, he became subject to the storage statute because he was storing or keeping his firearm in a "place" neither on his person nor "under the control of the owner or other lawfully authorized user." G. L. c. 140, § 131L (a). Consequently, the evidence at trial was insufficient as a matter of law to support a verdict of guilty on the carrying charge, and a judgment of not guilty must be entered on his behalf.

With respect to the sufficiency of the evidence on the storage charge, we examine the evidence in light of our conclusion that a motor vehicle is not itself a securely locked container within the meaning of the storage statute, but that the storage of a firearm in a securely locked container within a motor vehicle would satisfy its requirements. The evidence was conflicting on whether the glove compartment was locked or unlocked. At least one witness called by the Commonwealth testified that it was unlocked, while the defendant maintained that it was locked. Consequently, the jury properly could have concluded that the defendant stored his loaded firearm in an unlocked container

Page 259

within a motor vehicle. This is sufficient to support his conviction under the storage statute.

d. Jury instructions. Finally, we turn to the defendant's argument that the jury instructions were deficient. Although the defendant cites a variety of reasons why the jury instructions were wanting, [Note 20] we focus our attention exclusively on the judge's failure to provide the jury with any guidance regarding what qualifies as a securely locked container for purposes of the storage statute. [Note 21]

"A judge must instruct a jury on the law applicable to the crime for which a defendant is charged . . . [by] defin[ing] or explain[ing] the offense charged [including] words or phrases in the statutes or cases establishing the offense." W.C. Flanagan, Trial Practice § 20.12, at 642-643 (2d ed. 2005). Commonwealth v. Shaffer, 367 Mass. 508, 512 (1975) (jury must receive complete instructions from judge, including explanation of proper factors to be considered in determining issue). Because the defendant objected to the instructions, we review under a harmless error standard. An error is nonprejudicial only "[i]f . . . the conviction

Page 260

is sure that the error did not influence the jury, or had but very slight effect . . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected." Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). Because the jury's determination concerning whether a locked glove box within a locked motor vehicle qualifies as a securely "locked container" was central to the defense, the judge should have offered additional guidance regarding the term's meaning. [Note 22] His failure to include such guidance was not harmless error, and the defendant is entitled to a new trial on the storage charge.

3. Conclusion. In sum, although we reject the defendant's constitutional claims, we nevertheless reverse his conviction under the carrying statute and direct a verdict in his favor based on the insufficiency of the evidence. Additionally, we reverse the defendant's conviction under the storage statute due to the judge's deficient jury instructions, and we remand the case to the District Court for retrial on the complaint charging a violation of G. L. c. 140, § 131L (a) and (b).

So ordered.