Commonwealth v. Francisco Nunez Severino (2025): Appeals Court Bars Retrial Where Commonwealth Failed to Prove Co-Venturer’s Lack of Firearms License
Introduction
The Massachusetts Appeals Court’s decision in Commonwealth v. Francisco Nunez Severino marks a major development in how prosecutors must handle firearms-possession cases that rely on joint-venture or aiding-and-abetting theories.
In a detailed opinion authored by Justice Englander, the court vacated two firearm convictions—carrying a firearm without a license and carrying a loaded firearm without a license—because the Commonwealth failed to prove that the shooter’s lack of a license was an essential element of the crime.
The opinion builds directly on the Supreme Judicial Court’s twin decisions in Commonwealth v. Guardado I (2023) and Guardado II (2023), which re-defined what constitutes “unlawful possession” after New York State Rifle & Pistol Ass’n v. Bruen (2022).
In short, if a defendant is charged as an aider and abettor in a gun case, the Commonwealth must prove beyond a reasonable doubt that the actual possessor—the co-venturer—was unlicensed. Failure to do so means acquittal, not retrial.
The Facts: Two Shootings in Lawrence
The charges arose from two connected shootings in Lawrence in August 2021.
Francisco Nunez Severino and another man (identified as “Doe”) attended a party in a fourth-floor apartment. A fight broke out. Both men left, but Nunez later drove Doe back in his black SUV.
Moments later, Doe approached the apartment armed with a handgun and fired a shot through the door. About fifteen minutes later, as one partygoer got into his van outside, the same SUV pulled alongside him. Doe jumped out again and fired several rounds into the vehicle before getting back in.
Police arrested Nunez shortly thereafter driving the same SUV. They found fake DEA badges but no firearm. The gun was never recovered.
The Commonwealth charged Nunez with multiple counts, including:
Assault and battery with a dangerous weapon (seven counts)
Discharging a firearm within 500 feet of a building
Carrying a firearm without a license
Carrying a loaded firearm without a license
The prosecution’s theory was that Nunez drove the shooter, participated in both attacks, and was therefore guilty as a joint venturer or, alternatively, because he constructively possessed the gun.
The Trial: Faulty Jury Instructions and a 911 Call
At the June 2023 trial—months after Guardado I—the judge instructed the jury that Nunez could be found guilty if he “knowingly participated in the commission of the crime charged, alone or with others.”
However, the judge did not instruct the jury that, to convict on an aiding-and-abetting theory, it had to find that Doe lacked a license. The Commonwealth offered no proof on that point.
The judge also allowed the jury to consider whether Nunez constructively possessed the firearm himself and told jurors they could infer guilt if he “had the gun under his control in a vehicle.” The parties stipulated that Nunez himself did not have a license, but no evidence addressed Doe’s status.
Separately, prosecutors introduced a 911 call from an apartment occupant. The call, made roughly an hour after the first shooting, described “a black Ford SUV … with a plate ending in 66.” The defense objected, arguing that the lapse of time made the statement hearsay. The judge admitted it as an excited utterance, reasoning that the caller was still under stress because the suspects remained outside.
The jury convicted Nunez on all firearm and assault counts.
The Appeal: Was the License Element Missing?
On appeal, Nunez raised two central arguments:
That the judge’s failure to instruct on the co-venturer’s lack of license required reversal; and
That the 911 call should not have been admitted.
The Commonwealth conceded that the instruction was erroneous but argued that the convictions could stand because the evidence of constructive possession was sufficient.
The Appeals Court’s Holding
1. Failure to Prove the Co-Venturer Was Unlicensed
The court agreed that the jury instruction was wrong. After Guardado I, the absence of a license became an element of every firearm possession offense. That means when the Commonwealth prosecutes under an aiding-and-abetting theory, it must prove that the principal—the person actually holding the gun—was unlicensed.
Because no evidence established whether Doe had a license, the conviction could not stand.
2. Insufficient Evidence → No Retrial
Under ordinary circumstances, an erroneous jury instruction leads to a new trial. But double-jeopardy principles bar retrial when the evidence was insufficient at the first trial.
Here, the Commonwealth should have known—after Guardado I and before Guardado II—that it needed to prove the co-venturer’s lack of a license. Since it failed to do so, the court ruled that Nunez cannot be retried on that theory.
3. Constructive Possession Also Fails
The Commonwealth argued that even without aiding-and-abetting, Nunez could be convicted because he constructively possessed the gun. The Appeals Court disagreed.
Constructive possession requires proof that the defendant knew of the firearm and had the ability and intent to exercise control over it. Simply driving the shooter, even twice, does not show control. The gun was in Doe’s actual possession, and no evidence indicated that Nunez ever handled it or could command its use.
Because the evidence lacked this “plus factor,” the court held that the constructive-possession theory also failed. Double jeopardy barred retrial on that ground as well.
4. The 911 Call Was Properly Admitted
Finally, the Appeals Court upheld the trial judge’s decision to admit the 911 call. Although about an hour had passed, the caller was still under the stress of ongoing danger—the shooter was reportedly outside the apartment waiting in a vehicle. The caller’s repetition and urgency showed genuine agitation. The court found no abuse of discretion in treating the call as an excited utterance.
Outcome
The Appeals Court:
Reversed the convictions for carrying a firearm without a license and carrying a loaded firearm without a license.
Ordered judgments of not guilty on those indictments, because the Commonwealth’s proof was insufficient.
Affirmed all remaining convictions, including assault and discharging a firearm within 500 feet of a building.
What This Means for Massachusetts Gun Cases
The decision in Commonwealth v. Nunez Severino continues the post-Bruen and post-Guardado evolution of Massachusetts firearms law. It cements three key rules that every defense attorney and prosecutor must understand.
1. License Status Is an Element of the Crime
After Guardado I, possession of a firearm is not unlawful unless the possessor is unlicensed. The Commonwealth now carries the burden of proving lack of license beyond a reasonable doubt, whether the defendant is the actual possessor or an aider and abettor.
2. Joint Venture Requires Proof of the Principal’s Unlicensed Status
If the prosecution claims that the defendant helped someone else carry or use a gun, it must prove that the person holding the gun was unlicensed. Without that evidence, a conviction cannot stand.
3. Double Jeopardy Bars a Second Try
Where the Commonwealth should have known the legal standard and still failed to meet it, retrial is forbidden. That rule preserves finality and protects defendants from repeated prosecution after the State’s own error.
The Concurring Opinion: Why “Zanetti” Does Not Fit Possession Crimes
Judge Toone, joined by Judge Wood, wrote a separate concurring opinion explaining that the streamlined framework from Commonwealth v. Zanetti (2009)—which treats principal and joint-venture liability as one—does not work for firearm-possession offenses.
Under Zanetti, juries are told simply that a defendant is guilty if he “knowingly participated in the commission of the crime charged, alone or with others.” But in a possession case, those are two different underlying crimes:
For principal liability, the Commonwealth must prove the defendant himself possessed the gun and lacked a license.
For aiding and abetting, the Commonwealth must prove someone else possessed the gun and that both people were unlicensed.
Merging the two theories under a single “knowing participation” instruction confuses jurors and obscures which act was actually unlawful. The concurrence urged Massachusetts courts to treat possession-based joint ventures as analytically distinct, requiring their own tailored instructions.
Broader Takeaways for Criminal Defense Attorneys
Track the License Proof
After Nunez Severino, defense counsel should always examine the record for evidence of both defendants’ license status. If the Commonwealth proves only that your client lacked a license—but not the co-venturer’s status—the aiding-and-abetting theory collapses.
Challenge Constructive Possession Cases
Mere presence or proximity to a gun does not equal control. Where the gun is in another person’s hands, prosecutors must produce evidence of the defendant’s intent and ability to control it—such as shared use, handling, or storage. Without that “plus factor,” the evidence is insufficient.
Understand When Retrial Is Barred
If the governing law was already clear when the Commonwealth failed to meet its burden, the defense can demand entry of judgments of not guilty, not just a new trial. The Appeals Court explicitly used that remedy here.
Use This Case in Motions to Dismiss and Renew Rule 25(b)(2)
For pending firearm cases where the Commonwealth has not proven the co-venturer’s lack of a license, Nunez Severino provides direct precedent for dismissal.
Practical Example
Imagine a driver and a passenger stopped by police. The passenger has a gun, and the Commonwealth charges the driver with aiding and abetting unlawful possession.
Under Guardado I and Nunez Severino, the prosecution must prove the passenger had no license.
If that proof is missing, and the trial occurs after 2023, the driver cannot be retried once the conviction is reversed.
This transforms how prosecutors approach joint firearm cases and how defense lawyers craft their strategies.
How This Decision Protects Constitutional Rights
Massachusetts courts are aligning state law with the U.S. Supreme Court’s recognition in Bruen that carrying a firearm for self-defense is constitutionally protected conduct. Criminal punishment now turns on failure to comply with licensing requirements—not on the mere act of possession.
By requiring the Commonwealth to prove the absence of a license beyond a reasonable doubt, Nunez Severino ensures that Second Amendment rights and due-process protections remain intact.
Conclusion
Commonwealth v. Francisco Nunez Severino reinforces a simple but vital principle: the government must prove every element of a crime, including the absence of a firearm license, before it can convict.
When prosecutors overlook that duty, dismissal—not a do-over—is the result. For defense lawyers, the opinion is both a powerful precedent and a roadmap for challenging weak firearm prosecutions.
If you or someone you know is charged with unlawful possession or aiding and abetting a firearm offense in Massachusetts, contact Benzaken, Sheehan & Wood, LLP today. Our Brockton criminal defense attorneys understand the evolving landscape of post-Bruen gun law and know how to protect your rights.
Q & A: Understanding Commonwealth v. Nunez Severino
Q1: What did the Appeals Court decide in Nunez Severino (2025)?
It reversed firearm-possession convictions because the Commonwealth failed to prove that the co-venturer—the man holding the gun—was unlicensed.
Q2: Why can’t the Commonwealth retry the defendant?
Because the trial took place after Guardado I, prosecutors should have known that lack of license was an element. Their failure to prove it made the evidence insufficient, and double-jeopardy rules bar a second trial.
Q3: Does this case affect all joint-venture gun prosecutions?
Yes. Whenever a defendant is accused of aiding someone else’s gun possession, the Commonwealth must prove that the actual possessor had no license.
Q4: What about constructive possession?
Driving or being near a gun is not enough. The Commonwealth must show that the defendant had both the ability and the intent to control the weapon.
Q5: What did the court say about the 911 call?
It upheld admission of the call as an excited utterance because the caller was still under stress and believed the shooter was outside.
Closing
The decision in Commonwealth v. Francisco Nunez Severino underscores the Supreme Judicial Court’s growing insistence that prosecutors meet every element of proof in firearm prosecutions, especially in joint-venture cases. It reminds judges, lawyers, and citizens alike that constitutional rights do not vanish when the Commonwealth overreaches or the law evolves. For defendants, it means that unlawful possession cannot be presumed — it must be proven.
If you or someone you care about is facing a Massachusetts gun charge, especially one involving allegations of joint venture or aiding and abetting, the defense must be handled with precision. The attorneys at Benzaken, Sheehan & Wood, LLP have extensive experience challenging firearm prosecutions and protecting clients’ constitutional rights across Brockton, Plymouth, and all Massachusetts courts.
Contact us today for a confidential consultation. Justice delayed is one thing — but justice denied is never acceptable.