Appeals Court (January 22, 2007)

An individual may be charged with possession of a firearm or ammunition under a joint venture theory if the elements of a joint venture are met and there is sufficient evidence to support a conclusion that the defendant knew his joint venturer was armed. In such a prosecution, the defendant properly bears the burden of proving that the co-venturer was properly licensed.

The defendant arranged to buy drugs from the victim. Rather than buy the drugs; however, the defendant and another man armed with a gun attempted to rob the victim. During the altercation, the gun man shot the victim. The victim then heard the defendant tell the gun man to "shoot him again." The defendant was convicted on a joint venture theory of, among other things, possession of a firearm without a license and possession of ammunition without a firearm identification card.

On appeal the defendant argued that the Massachusetts firearms statutes impermissibly shift the burden of proof to a defendant to prove that a co-venturer possessed a proper license to carry a firearm or FID card. The defendant argued that either 1) the Commonwealth should bear the burden of proving the defendant's coventurer did not have a proper license, or 2) the crimes of possessing a gun and ammunition without a proper license should not be crimes which may be premised on joint venture culpability. The court disagreed.

The Commonwealth should not bear the burden:

In criminal cases involving firearms, a defendant has the burden of proving his lawful authority to possess the firearm. "A defendant in a criminal prosecution, relying for his justification upon a license . . . or authority, shall prove the same; and, until so proved, the presumption shall be that he is not so authorized." G.L. c. 278, § 7. A defendant is in a better position than the Commonwealth to know if his joint venturer is armed and properly licensed, and must assume the risk that his ignorance poses. If the jury may reasonably infer from the evidence that the defendant knew his coventurer was armed, it may also infer that the defendant knew whether his accomplice was also properly licensed.

Joint venture culpability:

A defendant can be convicted as a joint venturer if he is 1) present at the scene of the crime, 2) with knowledge that another intends to commit the crime or with intent to commit a crime, and 3) by agreement is willing and available to help the other if necessary. The Appeals Court ruled that an individual may be prosecuted for unlawful possession of a firearm or ammunition under a joint venture theory if the elements of a joint venture are met and there is sufficient evidence that the defendant knew his joint venturer was armed.