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You fall asleep with a gun tucked under your arm, odds are good you're going to know if it was loaded or not, court rules

Seized gun

The gun in question. Photo by BPD.

The Massachusetts Appeals Court today upheld a Dorchester man's conviction for illegal possession of a loaded firearm, seized when Boston police officers found him asleep in a playground outside the Oliver Wendell Holmes School, the gun tucked under his arm.

In his appeal of his conviction, Rodney Cooper, 18 at the time of his arrest, argued that prosecutors failed to prove beyond a reasonable doubt that he knew the gun was loaded, let alone loaded with four bullets in a magazine, when he was awoken shortly before 6 a.m. on a platform in the playground near Thane and Athelwood streets on Aug. 17, 2016.

The court, however, agreed with prosecutors - and the Boston gun-court judge who found Cooper guilty - that the evidence was overwhelming there's no way Cooper would have been sleeping outdoors with an unloaded gun.

The court started with Cooper's own statements in the police station to which he'd been brought after his arrest, starting with the phone call he made, apparently to his mother:

The officer heard the defendant mention a "small pistol" as the reason for his arrest, and heard him repeatedly refer to a "recent homicide," and then say, "I don't want to be the next one." In an interview with police, the lawfulness of which is not contested by the defendant, a detective asked the defendant, "Why are you carrying what you were carrying?" The defendant responded, "Yeah. . . . I live around a lot of violence. Someone was killed right around the corner for no reason."

Four days before his arrest, Carlos Fortes Neves-Silva was shot to death a couple blocks away on Algonquin Street.

Still, Cooper's attorney argued the case was comparable to decisions reversing other loaded-gun convictions, one involving a man charged for the loaded gun in the console of another person's pickup truck he happened to be driving, another involving a man arrested for driving without a license, after which police found a loaded gun in a rear console of his car. The Supreme Judicial Court reversed the convictions because prosecutors could not prove he knew the gun was loaded.

But the justices in Cooper's case noted that the justices in the pickup case agreed that circumstantial evidence could be enough to sustain a guilty verdict. And appeals court ruled there was more than enough of that in Cooper's case.

To begin with, the defendant was out of doors, and the gun was neither holstered, nor concealed, but was drawn. As we recently said in Commonwealth v. Mitchell, "[i]t is reasonable to infer that one that brings a gun to a location knows whether or not it is loaded . . . ." 95 Mass. App. Ct. 406, 419 (2019). Further, the judge could have found that the gun was tucked into the defendant's armpit area.

Citing another case, involving a man found with a loaded gun in his waistband, the court said it's a "commonsense inference" that somebody would know if a gun they're tucking in close to their body is loaded or not.

Finally, the defendant's statements indicating that he had obtained the gun following a recent homicide for self-protective purposes - a purpose for which many people obtain a firearm - supports an inference that this was a gun that the defendant had deliberately obtained, not merely one he had, for example, found or taken from someone. This reduces the likelihood that the defendant would be unaware of whether the gun was loaded because he had no substantial connection to it, and thus strengthens the inference that he would have known whether or not it was loaded. On all the facts and circumstances here, then, although the inference of knowledge is not inescapable, it is a reasonable one, Commonwealth v. Powell, 459 Mass. 572, 579, cert. denied, 565 U.S. 1262 (2011), and the evidence is sufficient to support the judge's finding beyond a reasonable doubt that the defendant knew the gun was loaded.

Written and oral arguments in the case.

PDF icon Complete ruling80.83 KB

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Looks like a Makarov. Standard Soviet police and military issue.

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