Background
In June 2021, a Massachusetts State Police trooper stopped Davio Vardamis-Henry for texting while driving on Route 495. A license check revealed that although Vardamis-Henry held an active Maine driver’s license, his Massachusetts license was suspended for failure to pay fines. When the trooper arranged for the car to be towed, he opened the car door so Vardamis-Henry could retrieve personal belongings, and saw a firearm barrel protruding from a backpack on the front passenger floor. Vardamis-Henry told the trooper he had forgotten about the gun and kept it to protect his dog. He was arrested for carrying a firearm without a license.
A District Court jury convicted Vardamis-Henry of carrying a firearm without a license, possession of ammunition without a firearm identification card, improper storage of a firearm under G. L. c. 140, § 131L(a), and operating a motor vehicle with a suspended license. The first two convictions were subsequently vacated on Second Amendment grounds following New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), and the Supreme Judicial Court’s decision in Commonwealth v. Donnell, 495 Mass. 471 (2025). The improper storage and suspended-license convictions remained, and Vardamis-Henry appealed on two fronts: sufficiency of the evidence on both counts, and a Confrontation Clause challenge to the admission of an RMV Registrar’s certificate without live testimony.
The Court’s Holding
Affirmed on all issues.
On improper storage, the court focused on the statutory “immediate control” element. Under G. L. c. 140, § 131L(a), the obligation to secure a firearm in a locked container or with a mechanical lock applies only when the owner chooses not to carry it “or keep it under his immediate control.” Commonwealth v. McGowan, 464 Mass. 232, 243 (2013). The statute defines “control” as having the weapon “sufficiently nearby to prevent immediately its unauthorized use.” Commonwealth v. Patterson, 79 Mass. App. Ct. 316, 319 (2011). The defendant argued that because only a police trooper was in the vicinity and the defendant remained near the car, he retained immediate control. The court disagreed: at the moment Vardamis-Henry stepped out of the car, the trooper stood between him and the open driver’s side door, the firearm was in a backpack on the opposite (passenger) side floor, and a tow truck driver had arrived. A jury could rationally find that the defendant could not have “immediately prevented unauthorized use” of the firearm under those circumstances. The trooper’s testimony that the defendant “seemed very adamant to retrieve” the backpack was additional circumstantial evidence that the defendant understood control had slipped.
The defendant also argued that the Commonwealth was judicially estopped from contending on appeal that the firearm was not under his control, because the trial prosecutor had argued it was under his control to support the (now-vacated) possession charge. The court rejected this argument cleanly: the prosecutor never advanced any theory at trial about whether the defendant had immediate control of the gun when he stepped out of the car. There was no trial theory to be estopped from abandoning. See Commonwealth v. McGrath, 497 Mass. 369, 373–74 (2026) (“the Commonwealth’s ‘[a]rguments on appeal must be based on [the trial] theor[y]’”). Compare Commonwealth v. Cantelli, 83 Mass. App. Ct. 156, 171–72 (2013) (“control” for storage purposes is distinct from “control” as a possession element).
On the RMV records, the Commonwealth conceded — and the court agreed — that one sentence in the Registrar’s certificate was improperly admitted: the Registrar’s attestation that there had been “no reinstatement” of the defendant’s license is a testimonial out-of-court statement under Commonwealth v. Parenteau, 460 Mass. 1, 8 (2011), and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 322 (2009). But the error did not create a substantial risk of a miscarriage of justice because the properly admitted RMV driving history and suspension notices — which are non-testimonial business records maintained independent of any prosecutorial purpose, see Commonwealth v. Royal, 89 Mass. App. Ct. 168, 173–74 (2016) — independently established that the defendant’s Massachusetts license was suspended on the date of the stop. The contested certification was cumulative, not essential.
Key Takeaways
- “Immediate control” under G. L. c. 140, § 131L(a) is assessed at a specific moment in time, not as a general status. A firearm left in a parked car while the owner stands outside — with third parties present and physical barriers between the owner and the weapon — can support an improper storage conviction even if the owner remains nearby.
- The Commonwealth is not precluded on appeal from arguing a theory it never presented at trial. The estoppel rule bars the prosecution from abandoning a trial theory on appeal, not from arguing a point that was simply never addressed below. McGrath, 497 Mass. at 373–74.
- RMV driving records, suspension notices, and mailing confirmation records are non-testimonial business records freely admissible under G. L. c. 233, §§ 76 and 78. The Registrar’s certification of current license status (e.g., “no reinstatement”) is testimonial under Parenteau and must be redacted or supported by live testimony.
- Post-Bruen/Donnell: Massachusetts firearm licensing and ammunition charges face constitutional challenge; improper storage under G. L. c. 140, § 131L(a) and operation after suspension do not. Prosecutors should expect continuing litigation as courts work through the Second Amendment landscape.
Why It Matters
Commonwealth v. Vardamis-Henry provides useful precision on two recurring issues in Massachusetts firearms prosecutions. First, the “immediate control” exception to the improper storage statute has historically been analyzed in on-the-person scenarios. This case extends the situational analysis to a traffic stop where a vehicle’s owner has been directed outside, with a tow truck and an officer also present. Defense counsel in similar roadside firearms cases should focus attention on whether the Commonwealth can establish that control was lost at the precise moment in question, rather than at some earlier or later point in the encounter.
Second, the Registrar certificate issue is entirely preventable. Prosecutors who redact the “no reinstatement” language before trial — as Parenteau requires — face no confrontation problem with the rest of the RMV record package. Defense counsel who fail to object at trial are limited to the more forgiving “substantial risk of miscarriage of justice” standard on appeal, which, as this case shows, is a high bar when the erroneously admitted evidence is cumulative of properly admitted records.