Wednesday, April 27, 2011
The Second Amendment provides that
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Meanwhile, the Confrontation Clause of the Sixth Amendment provides that
In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him....
It is not very often that a defendant claims that a criminal prosecution violated both his Second Amendment and Sixth Amendment rights, but that was exactly the case in Commonwealth v. Patterson, 2011 WL 1520025 (Mass.App.Ct. 2011).In Patterson,
Responding to an abandoned 911 telephone call, police went to 48 Forest Street in Franklin where, as they approached, they saw a scared and crying five year old girl, who was repeatedly yelling, "no police." Near her was her mother, who appeared shaken and nervous. The police entered the residence and saw an empty gun holster on the kitchen floor. At that point, the defendant entered the kitchen from the living room and the child said, "He pushed Mommy into the wall. He had a gun." The defendant identified himself as a police officer and stated that he was unarmed. One of the responding police officers ushered him outside. Another officer, accompanied by the mother, the girl, and her seven year old brother, then went upstairs. In the hall, the officer observed a foot-wide indentation in the wall about three feet up from the floor. In the pocket of a jacket hanging in an upstairs bedroom closet, the officer located a Smith & Wesson .38 caliber handgun. The unloaded gun did not have a trigger lock and was not secured in a locked container. Also in the same pocket was hollow point .38 caliber ammunition.
The defendant was thereafter charged with improper storage of a firearm under G.L. c. 140, § 131L(a). After he was convicted, the defendant appealed, first claiming that G.L. c. 140, § 131L(a) was unconstitutional under District of Columbia v. Heller, 554 U.S. 570 (2008), as applied to the states in McDonald v. Chicago, 130 S.Ct. 3020 (2010). The Appeals Court of Massachusetts disagreed, finding that under the D.C. Code provision found violative of the Second Amendment, a person registered to keep a firearm (apart from law enforcement personnel) was prohibited in any circumstance from carrying or keeping a loaded firearm in his or her home. Conversely, as the Supreme Judicial Court of Massachusetts held in Commonwealth v. Runyan, 922 N.E.2d 794 (Mass. 2010), under under G.L. c. 140, § 131L(a),
an individual with a valid firearms identification card...is not obliged to secure or render inoperable a firearm while the individual carries it or while it remains otherwise under the individual's control. A gun owner may therefore carry or keep a loaded firearm under his or her control in his or her home without securing it with a trigger lock or comparable safety device. The gun owner's obligation to secure the firearm in accordance with the statute arises only when the firearm is stored or otherwise outside the owner's immediate control.
The defendant's second argument on appeal was that the admission of the child's statement, "He pushed Mommy into the wall. He had a gun," violated his right to confrontation under the Sixth Amendment." The court again disagreed, finding that
The child's statement here was made spontaneously, without police questioning, as the officers walked into a volatile and unstable scene of domestic disturbance. There is nothing to suggest that the statement was made for any purpose other than to secure aid, let alone that the five year old child had in mind that the statement would or could be used to prove some fact at a future criminal trial. The statement, accordingly, was not testimonial for purposes of the Sixth Amendment.
And, because the statement was not testimonial, its admission could not violate the Confrontation Clause.