NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-343

COMMONWEALTH

vs.

JEFFERY P. DONNELLY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the District Court, the defendant 

was convicted of failing to surrender a revoked or suspended 

license to carry a firearm or firearms in violation of G. L. 

c. 269, § 10 (i). The defendant raises numerous issues on 

appeal, none of which warrant reversal of his conviction. We 

address each issue in turn.

1. Denial of motion to dismiss the complaint. On May 10,

2021, a clerk magistrate of the Springfield District Court 

issued a criminal complaint charging the defendant with a 

violation of G. L. c. 269, § 10 (i).1 Following his arraignment,

1 The Commonwealth maintains that the defendant's failure to 

include a copy of the criminal complaint in the record appendix 

precludes us from reviewing his argument. While the 
2

the defendant moved to dismiss the complaint, asserting, among 

other things, that the complaint application failed to set forth 

probable cause to believe that he had committed the charged 

offense.2 After a nonevidentiary hearing, the motion was denied 

in a margin endorsement. The defendant argues that the judge 

erred in denying his motion to dismiss the complaint.

A motion to dismiss a complaint for lack of probable cause 

is decided from the information within the "four corners" of the 

complaint application. Commonwealth v. Humberto H., 466 Mass. 

562, 565 (2013). The complaint application, like a grand jury 

presentment, must contain sufficient evidence to establish the 

identity of the accused and provide probable cause as to each 

element of the crime charged. Commonwealth v. Leonard, 90 Mass. 

App. Ct. 187, 190 (2016). Probable cause "exists where the 

facts and circumstances . . . [are] sufficient in themselves to 

warrant a [person] of reasonable caution in the belief that an 

offense has been . . . committed" (quotations and citation

omitted). Commonwealth v. Coggeshall, 473 Mass. 665, 667 

Commonwealth is correct that the defendant has the burden to 

provide us with an adequate record to address his claims, we 

conclude that the issue is properly before us.

2 We have not overlooked the additional arguments advanced 

by the defendant in support of his motion to dismiss. However,

because they are not relevant to the validity of the criminal 

complaint, we do not address them.
3

(2016). "We view the allegations set forth in support of 

probable cause in the light most favorable to the Commonwealth." 

Leonard, supra.

The police report submitted in support of the complaint 

application set forth the following facts. On April 12, 2021,

Springfield police Deputy Chief Kent revoked the defendant's

license to carry firearms based on an unrelated criminal case. 

The report listed twenty-six firearms that the defendant had not 

turned over to the police. On May 7, 2021, Detective Shink of 

the Springfield police department contacted the defendant by 

calling his cell phone. During that conversation, the defendant 

stated that "he would not surrender his firearms and [license to 

carry] to the police." The defendant further stated that "he 

was going to transfer his firearms to Vermont so that [the 

Springfield police] could not obtain them." About twenty 

minutes after that conversation concluded, Springfield police 

Sergeant Podgurski called the defendant. During the ensuing

conversation, the defendant stated that "he felt that he was not 

required to surrender his firearms and they were already in 

Vermont." The last sentence in the police report states: "[The 

defendant]'s story on the [whereabouts] of his firearms and 

other related topics kept changing and again [he] refused to 

comply with the order."
4

A violation of the statute at issue here required the clerk 

magistrate to find probable cause that the defendant knowingly 

failed to surrender his license to carry a firearm or firearms 

after his license was suspended or revoked. See G. L. c. 269,

§ 10 (i). The facts described above, particularly the 

defendant's statement that he would not surrender his license or 

firearms to the police and his conflicting statements regarding 

the location of the firearms, were sufficient to establish 

probable cause to believe that the defendant had violated the 

statute. Accordingly, the judge did not err in denying the 

motion to dismiss.

2. Violation of the defendant's right to confront 

witnesses against him. Detective Shink authored the report 

submitted in support of the complaint application and, as 

previously noted, spoke with the defendant about surrendering 

both his license to carry a firearm and his firearms. However,

Detective Shink did not testify at trial. When the parties 

appeared in court for trial on April 28, 2022, the defendant 

learned that Detective Shink was on long-term leave from service 

due to an injury and, therefore, was not available. The 

defendant objected and informed the court that he had intended 

to "grill" the detective and his absence placed the defendant at 

a disadvantage. Ultimately, at the defendant's request, the 
5

trial was continued to permit the defendant to file a motion to 

dismiss based on the detective's unavailability. That motion 

was filed and subsequently denied after a hearing held on May 6,

2022.

The defendant argues that his motion to dismiss should have 

been allowed because the failure to produce Detective Shink 

violated his Sixth Amendment right to confront witnesses against 

him. Apart from the fact that the defendant never subpoenaed

Detective Shink, as he was free to do, there was no 

constitutional violation where, as here, none of the detective's 

out-of-court statements were admitted in evidence. See 

Commonwealth v. Caruso, 476 Mass. 275, 294 (2017).3

3. Sufficiency of the evidence. The defendant's claim 

that the evidence was insufficient to support his conviction 

beyond a reasonable doubt also fails. Viewing the evidence in 

the light most favorable to the Commonwealth, see Commonwealth

v. Latimore, 378 Mass. 671, 676-677 (1979), the jury could have 

reasonably found that the defendant knew he was required to 

surrender his license and firearms to the Springfield police 

department. Deputy Chief Kent testified that he signed a 

3 Furthermore, even if a constitutional violation had 

occurred, the appropriate remedy would be to grant a new trial 

and not to dismiss the complaint. In any event, the defendant 

is not entitled to any relief as there was no error.
6

"suspension notice" regarding the defendant's license to carry a 

firearm on April 12, 2021.4 Sergeant Podgurski testified that he 

spoke with the defendant on the telephone on May 7, 2021, and 

informed him that he had to surrender his license and firearms 

and, if he did not comply, a warrant would be issued. According 

to the Sergeant, the defendant replied that he would not 

surrender his license or firearms and claimed that he was not 

required to do so. The Sergeant also related that the defendant 

provided conflicting information about the location of the 

firearms, and he testified that when he pressed the defendant 

for an answer, the defendant said the firearms had been 

transferred to Vermont but would not provide an address or 

otherwise specify their whereabouts. Ultimately, the defendant

surrendered his license after he was ordered by the court to do 

so, and the firearms were retrieved by Springfield police 

officers in Vermont.

The defendant argues that the evidence is insufficient 

because 1) he was not notified in writing of the fact that his 

4 Although not relevant to the question whether the 

Commonwealth had met its burden of proof, we note that the 

defendant raised the question whether Deputy Chief Kent had the 

authority to suspend the license to carry on May 7, 2021, the 

day he was notified of the suspension, if, as the defendant 

contended, that license had expired on April 24, 2021. Deputy 

Chief Kent responded that he believed he had such authority and 

explained that there is a grace period following the expiration 

date during which the license remains valid.
7

license had been suspended or revoked, 2) at the time his 

license was revoked it had already expired, and 3) he had 

transferred his firearms to Vermont and therefore, in his view,

any refusal to surrender them to the police in Massachusetts did 

not constitute a criminal offense. The problem with the

defendant's argument is that none of the points he raises 

diminish the sufficiency of the Commonwealth's evidence. 

Rather, they provide a rationale or excuse for the defendant's 

conduct. The testimony of the two officers, Deputy Chief Kent 

and Sergeant Podgurski, established that the defendant knew his 

license had been suspended and, was informed that he was 

required to surrender the license and the firearms in his 

possession, and that he refused to comply. Nothing more was 

required for the Commonwealth to meet its burden of proving the 

offense beyond a reasonable doubt.

4. Jury instructions. The defendant next contends that 

the judge improperly instructed the jury with respect to the 

elements of the crime. Because the defendant raised a timely 

objection to the instruction, we review his claim for 

prejudicial error. Commonwealth v. Allen, 474 Mass. 162, 168 

(2016). We discern none. The judge largely instructed the jury 

in accordance with the Criminal Model Jury Instructions for use 

in the District Court. See Commonwealth v. Odgren, 483 Mass. 
8

41, 54 (2019) (not error for judge to give instruction in 

accordance with operable model jury instructions). The judge 

instructed the jury as follows:

"To prove the defendant guilty of this offense the 

Commonwealth must prove two things beyond a reasonable 

doubt: First, that the defendant knew that his license to 

carry, FI -- license to carry/firearm ID card had been 

revoked or suspended; and [t]hat the defendant failed to 

surrender without delay to the police department where he 

lives his license to carry a firearm or firearm 

identification card or firearms, rifles, shotguns or 

machine guns. The Commonwealth is required to prove beyond

a reasonable doubt that the defendant knew that his license 

to carry, firearm identification ID card was suspended or 

revoked either by having received a copy of the suspension 

revocation notice or by having learned of it in some other 

way."

The judge then continued:

"The defendant is charged with failing to surrender 

his license to carry a firearm or his firearm

identification card or his firearms, rifles, shotguns or 

machine guns after having his license to carry a firearm or 

firearm identification card suspended or revoked. To prove 

the defendant guilty of this offense the Commonwealth must 

prove two things beyond a reasonable doubt: First, that 

the defendant knew his license to carry a firearm ID card 

had been revoked or suspended; and [s]econd, that the 

defendant failed to surrender without delay to the police 

department where he lives his license to carry a firearm or 

firearm identification card or firearms, rifles, shotguns 

or machine guns. The Commonwealth is required to prove 

beyond a reasonable doubt that the defendant knew his 

license to carry firearm ID card was suspended or revoked

either by having received a copy of the suspension

revocation notice or by having learned of it in some other 

way. You should consider all of the evidence and any 

reasonable inferences you choose to draw from that evidence 

to determine the extent of the defendant's knowledge at the 

time when it is alleged his license to carry a firearm FID 

card was suspended or revoked."
9

The thrust of the defendant's challenge to the jury 

instructions is that the jury was not informed of his theory of 

the case, which was that he could not be found guilty unless he

received a written notice of suspension or revocation of his 

license, and that he did not commit an offense in Massachusetts 

because he brought his firearms to Vermont. However, the judge 

was not required to frame the instruction in a manner that 

reflects the defendant's interpretation of the statute or his 

theory of the defense. See Commonwealth v. Doughty, 491 Mass. 

788, 801 (2023). The instructions, as given, accurately defined 

the elements of the offense and properly conveyed the applicable 

legal standards. Accordingly, there was no error.

5. Second Amendment violation. The defendant's final 

argument is that the statute violates his right to bear arms

under the Second Amendment to the United States Constitution. 

Relying on New York State Rifle & Pistol Association. v. Bruen,

591 U.S. 1, 140 S. Ct. 1891 (2020), the defendant claims that 

the statute unlawfully interferes with his ability to possess 

and carry firearms. We are not persuaded by the defendant's 

assertion that the Supreme Court's decision in Bruen has 

resulted in a wholesale invalidation of the licensing scheme in 

Massachusetts and, more particularly, we are not persuaded that 

the statute in question is unconstitutional. Accordingly, we 
10

reject the claim that the decision in Bruen requires us to 

vacate the defendant's conviction.

Judgment affirmed.

By the Court (Vuono,

Massing & Toone, JJ.5),

Clerk

Entered: September 13, 2024.

5 The panelists are listed in order of seniority.