Commonwealth v. Richardson ( 2014 )

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SJC-11472
COMMONWEALTH vs. TARI RICHARDSON.
Plymouth. March 6, 2014. - August 7, 2014.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
& Lenk, JJ.1
Firearms. Practice, Criminal, Sentence, Execution of sentence,
Investigation of jurors, Voir dire. Evidence, Firearm,
Prior violent conduct, Identity. Jury and Jurors.
Statute, Construction.
Indictments found and returned in the Superior Court
Department on April 27, 2007.
The cases were tried before Jeffrey A. Locke, J., and a
posttrial motion to inquire of jurors or for alternative relief
was heard by him.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
William W. Adams for the defendant.
Gail M. McKenna, Assistant District Attorney, for the
Commonwealth.
Michael J. Fellows, for Committee for Public Counsel,
amicus curiae, submitted a brief.
1
Justice Ireland participated in the deliberation on this
case prior to his retirement.
2
GANTS, J. In Bynum v. Commonwealth, 429 Mass. 705, 707,
709 (1999), we declared that, where the Legislature enacts a
sentencing enhancement statute that provides for a longer
sentence where a defendant convicted of the crime has one or
more specified prior convictions, "[t]he prior offense is not an
element of the crime for which a defendant is charged but
concerns the punishment to be imposed if he is convicted . . .
and the prior offense is proved." We, therefore, concluded that
the Legislature did not intend that two sentences be imposed,
one for the underlying offense and a second for having committed
the offense after a prior conviction of the same offense. Id.
at 709. Here, the defendant was convicted of a firearms offense
for which there were two applicable sentencing enhancement
statutes, and the Commonwealth proved convictions of separate
prior offenses for each. The primary issue on appeal is whether
the defendant may be sentenced under both sentencing enhancement
statutes. We conclude that, unless the Legislature has
explicitly declared its intent to permit multiple sentencing
enhancements, a defendant may be sentenced under only one
sentencing enhancement statute.2
2
We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services.
3
Background. Because the defendant challenges the
sufficiency of the evidence, we recite the evidence at trial in
the light most favorable to the Commonwealth. After midnight on
March 4, 2007, the defendant, an African-American man wearing a
white T-shirt, entered a night club in Brockton, along with
another African-American man wearing a white T-shirt. The club
manager, Aldo Fernandes, recognized the defendant from a prior
incident at the club, and pointed the defendant and his
companion out to two security staff members, Andy Alerte and
Aaron Crutchfield. After the club closed at 1 A.M., and the
staff ushered patrons outside, Brockton police Officer Francis
Czarnowski, who was working on paid security detail at the club
and was walking toward Main Street to direct vehicles exiting
its parking lot, heard gunshots coming from the direction of
Forest Avenue. Officer Czarnowski proceeded in the direction of
the shots, where he observed two groups arguing in the
intersection. Moments later, he saw an African American man
wearing a white T-shirt pick up a firearm from the ground, and
fire three shots into the larger group. Officer Czarnowski
yelled for the shooter to stop, whereupon the shooter and
another African-American man, who was wearing a brown shirt,
fled down Forest Avenue, with Officer Czarnowski in pursuit.
Fernandes, who was observing the departing patrons in the
parking lot, heard a gunshot from the intersection of Main
4
Street and Forest Avenue, followed by more gunshots coming from
further down Forest Avenue. He then saw the defendant running
down Forest Avenue alone, with Officer Czarnowski close behind
him in hot pursuit. From where he was standing in the club
parking lot, Fernandes had an unobstructed and well-lit view of
the defendant being chased by Officer Czarnowski.3
Alerte was standing outside the club around closing time
when he saw one of the two men Fernandes had earlier pointed out
to him at the corner of Forest Avenue and Main Street, and heard
a loud bang, followed by another loud bang, coming from that
area. He saw one of the two men bend over, grab something from
the bushes, hold an object the way one would hold a firearm, and
then start running down Forest Avenue, with Officer Czarnowski
running behind him.
Officer Czarnowski pursued the two individuals into a
driveway of a nearby house. The man who had shot earlier fired
at Czarnowksi four times; the officer took cover behind two
barrels and returned fire. Thereafter, the shooter and his
companion jumped over the fence into the back yard of an
adjacent house and escaped.
The next day, Fernandes identified the defendant from an
array of photographs as the person he had seen at the night club
3
The defendant's expert testified that Aldo Fernandes was
222 feet away from the person he claimed to have identified as
the defendant.
5
just after midnight, and who he later observed being chased down
the street by Officer Czarnowski. Alerte identified two
photographs from the array, including a photograph of the
defendant, stating both resembled the person Fernandes pointed
out to him, whom he later saw pick up an object from the bushes.
While being shown the array, he did not favor one photograph
over the other, but at trial he testified that he favored the
photograph of the defendant. Crutchfield also identified the
defendant as the person Fernandes had asked him to keep an eye
on, and whom he had later asked to move along in the parking
lot. Officer Czarnowski was unable to select the defendant's
photograph from the array.
The defendant was questioned by police two days after the
shooting. After waiving the Miranda rights, he initially denied
being at the club on the night of the shooting, then admitted
that he arrived late and alone. He stated that he heard a shot
go off when he was in the middle of Main Street and ducked down,
fearful of being hit by a stray bullet. He denied that he had
been on Forest Avenue, stating that he later ran down another
street to escape from the shooting.
The defendant was indicted on charges of armed assault with
intent to murder, in violation of G. L. c. 265, § 18 (b), and
unlawful possession of a firearm, in violation of G. L. c. 269,
6
§ 10 (a).4 The latter indictment incorporated three counts, the
first alleging only the unlawful possession itself; the second
alleging unlawful possession by a person previously convicted of
a like firearms offense, in violation of G. L. c. 269, § 10 (d);5
and the third alleging unlawful possession by a person
previously convicted of a violent crime or serious drug offense,
in violation of G. L. c. 269, § 10G (a).6 A Superior Court jury
found the defendant guilty of armed assault with intent to
murder and unlawful possession of a firearm, and after a jury-
waived trial, the judge found under the sentencing enhancement
provisions of § 10 (d) that the defendant previously had been
convicted of unlawful possession of a firearm, and under the
sentencing enhancement provisions of § 10G (a) that the
4
The defendant was also indicted on a charge of assault by
means of a dangerous weapon, in violation of G. L. c. 265, § 15B
(b), but the judge at trial concluded that this offense was a
lesser included offense of assault with intent to murder and
entered a required finding of not guilty.
5
General Laws c. 269, § 10 (d), provides, "Whoever, after
having been convicted of any of the [unlawful possession of a
firearm] offenses set forth in paragraph (a). . . commits a like
offense . . . shall be punished by imprisonment in the state
prison for not less than five years nor more than seven years .
. . ."
6
General Laws § 269, § 10G (a), provides, "Whoever, having
been previously convicted of a violent crime or of a serious
drug offense, both as defined herein, violates the provisions of
paragraph (a) . . . of section 10 shall be punished by
imprisonment in the state prison for not less than three years
nor more than [fifteen] years . . . ."
7
defendant previously had been convicted of assault and battery
on a police officer.
The judge sentenced the defendant to from eighteen to
twenty years in State prison on the conviction of armed assault
with intent to murder.7 With respect to the sentencing
enhancements on the conviction of unlawful possession of a
firearm, the judge imposed a sentence of from six to seven years
in the State prison on the repeat offender count under § 10 (d),
and a sentence of from six to ten years in the State prison on
the prior violent offender count under § 10G (a),8 both to run
concurrently with each other and with the sentence on the
conviction of armed assault with intent to murder.9
In an unpublished memorandum and order pursuant to Appeals
Court rule 1:28, a panel of that court affirmed the defendant's
7
The Appellate Division of the Superior Court amended the
sentence on this conviction to from fifteen to twenty years in
State prison.
8
We characterize a person who is subject to sentencing
under § 10G after being convicted of the unlawful carrying of a
firearm as an "armed career criminal" only where the defendant
has three prior convictions of a violent crime or serious drug
offense. Commonwealth v. Anderson, 461 Mass. 616, 626 n.10
(2011). The defendant was found to have only one prior
conviction of a violent crime, so we characterize him as a prior
violent offender.
9
The trial judge initially ordered the sentences for the
two counts to run concurrent with each other, but from and after
the sentence on the conviction of assault with intent to murder;
the Appellate Division of the Superior Court amended the
sentences to run concurrent both with each other and with the
sentence on the conviction of assault with intent to murder.
8
convictions of assault with intent to murder and unlawful
possession of a firearm. However, the panel vacated the two
sentences imposed pursuant to the sentencing enhancement
statutes, and remanded the matter for "resentencing pursuant to
a single sentencing enhancement provision, whereupon the count
under the remaining sentencing enhancement provision shall be
dismissed and the finding set aside." Commonwealth v.
Richardson, 80 Mass. App. Ct. 1103 (2011). We granted the
defendant's application for further appellate review.
Discussion. 1. Multiple sentencing enhancements.
Statutes providing for enhanced sentencing based on a
defendant's prior convictions "do not create independent crimes,
but enhance the sentence for the underlying crime."
Commonwealth v. Johnson, 447 Mass. 1018, 1019-1020 (2006),
citing Bynum, 429 Mass. at 708-709. Therefore, the violations
of § 10 (d) and § 10G (a) are not separate crimes; instead, they
are separate sentencing enhancements for the same underlying
crime of unlawful possession of a firearm, in violation of
§ 10 (a).
The Legislature has "broad power to define crimes, and to
create punishments for them." Commonwealth v. Alvarez, 413
Mass. 224, 231 (1992). This power includes the authority to
require that a defendant be sentenced under multiple sentencing
enhancements where his prior convictions subject him to enhanced
9
punishment under multiple statutes. Id. See Missouri v.
Hunter, 459 U.S. 359, 368 (1983) ("[s]imply because two criminal
statutes may be construed to proscribe the same conduct . . .
does not mean that the Double Jeopardy Clause precludes the
imposition, in a single trial, of cumulative punishments
pursuant to those statutes").
The limitation on the imposition of multiple sentencing
enhancements is not legislative authority, but legislative
intent. "Where the Legislature has specifically authorized
cumulative punishment under two statutes, even if the two
statutes proscribe the same conduct . . . , a court's job of
statutory construction is terminated, and the intent of the
Legislature is to be enforced." Alvarez, supra at 232. Here,
neither § 10 (d) nor § 10G, nor any other statutory provision,
describes what is to happen when a defendant is convicted of a
crime and is found to have prior convictions that subject him to
sentencing under more than one enhancement. The Commonwealth
asserts, without citation to the statutory text or legislative
history, that, where multiple sentencing enhancements apply, the
Legislature intended to mandate a penalty between the highest
minimum and the highest maximum possible sentences under both
enhancements. As applied here, because § 10 (d) provides for a
minimum sentence of five years and a maximum sentence of seven
years, and § 10G (a) provides for a minimum sentence of three
10
years and a maximum sentence of fifteen years, the Commonwealth
contends that the judge should be able to impose a sentence of
no less than five years and no more than fifteen years, in one
"consolidated" judgment under both sentencing enhancements.10
It would certainly be permissible for the Legislature to so
provide, and we recognize that it is arguable that the
Legislature intended that a defendant with a prior conviction of
a drug charge or a crime of violence who unlawfully possesses a
firearm be required to serve no less than five years in State
prison, and that a defendant who has also been convicted of a
prior firearms offense be subject to a prison term of up to
fifteen years. But, where there is nothing in the statutory
language or the legislative history to suggest that the
Legislature intended to combine the minimum and maximum terms of
multiple sentencing enhancement provisions in this manner, we
must conclude that the legislative intent regarding this
question is ambiguous. See Busic v. United States, 446 U.S.
398, 407 (1980) (statutes ambiguous where they "fail[ed] to
address . . . whether Congress intended . . . to provide a
duplicative enhancement [for] the underlying felony" which
already contained firearm enhancement), superseded by statute as
recognized by United States v. Gonzales, 520 U.S. 1, 9-11 (1997)
10
The Commonwealth concedes that, pursuant to Bynum v.
Commonwealth, 429 Mass. 705, 707, 709 (1999), the defendant's
sentence must consist of a single judgment.
11
(statutory amendment clarified congressional intent to authorize
enhanced penalties under both statutes).
Under the rule of lenity, "if we find that the statute is
ambiguous or are unable to ascertain the intent of the
Legislature, the defendant is entitled to the benefit of any
rational doubt." Commonwealth v. Constantino, 443 Mass. 521,
524 (2005). "This principle applies to sentencing as well as
substantive provisions." Commonwealth v. Gagnon, 387 Mass. 567,
569 (1982). Based on this well-established principle of
statutory construction, we will not presume, absent a clear
statement, that the Legislature intended to impose multiple
sentencing enhancements to a single underlying offense.11
Because neither of the enhancement provisions at issue in this
case contains a clear statement of legislative intent regarding
the imposition of multiple sentencing enhancements, the
defendant may only be sentenced pursuant to one of the
enhancement statutes.
We briefly discuss the procedure to be followed when a
defendant is charged with multiple sentencing enhancement
provisions applicable to a single underlying offense. The
11
Cf. Commonwealth v. Hawkins, 21 Mass. App. Ct. 766, 769-
770 (1986), citing Simpson v. United States, 435 U.S. 6, 14
(1978) (absent clear statement from Legislature, no extra
enhancement for use of firearm during commission of felony when
underlying felony -- armed robbery -- already contains
aggravating factor).
12
Commonwealth may charge a defendant under multiple sentencing
enhancement statutes, especially where it may be unsure which of
a defendant's prior convictions it will be able to prove at
trial. It may then exercise its prosecutorial prerogative to
decide which enhancement provision will apply at sentencing by
entering a nolle prosequi of all but one sentencing enhancement
count, provided it does so before sentencing. See Mass. R.
Crim. P. 16, 378 Mass. 885 (1979) ("prosecuting attorney may
enter a nolle prosequi of pending charges at any time prior to
the pronouncement of sentence. . . . After jeopardy attaches, a
nolle prosequi entered without the consent of the defendant
shall have the effect of an acquittal of the charges contained
in the nolle prosequi"). Where, as here, the Commonwealth did
not exercise its authority to enter a nolle prosequi of one of
the enhancement counts before sentencing, the decision regarding
which sentence will survive on remand rests with the sentencing
judge. See Commonwealth v. Rivas, 466 Mass. 184, 190-191 & n.9
(2013).
2. Sufficiency of the evidence. The defendant claims that
the evidence was insufficient as a matter of law to identify him
as the person who possessed the firearm and fired multiple times
at Officer Czarnowski. Viewing the evidence in the light most
favorable to the Commonwealth, as we must in evaluating such
claims, see Commonwealth v. Latimore, 378 Mass. 671, 676-677
13
(1979), we conclude that the evidence described earlier in this
opinion was sufficient to support the jury's verdicts.
3. Postverdict inquiry of jurors. The defendant contends
that the judge abused his discretion by failing to order a
postverdict inquiry of female jurors. Ten days after the jury's
verdict, the defendant's brother signed an affidavit in which he
attested that, during a recess in trial proceedings, he
overheard a woman, who was between twenty-five and thirty years
of age, say during a telephone call that her boss was the
brother or cousin of the prosecutor who was trying the case.
The defendant's brother was not certain that the woman he
overheard was a juror, but he had seen her in the court room and
had also seen her speaking with a juror when she was outside the
court room. The defendant requested the trial judge either to
conduct a voir dire of the jurors or to show jurors' photographs
to the witness to determine whether the woman he saw was a
juror. The judge, over the Commonwealth's objection, allowed
the defendant's motion to the extent that he permitted defense
counsel to obtain copies of juror photographs through the
registry of motor vehicles so that they could be shown to the
defendant's brother.12
12
The Commonwealth appealed the judge's decision to the
single justice, and then to the full court, claiming that the
order subjected the jurors to an unwarranted risk to their
14
As a result of the order, photographs of five of the seven
female jurors were provided to defense counsel,13 and were
included in an array of nineteen photographs that was shown to
the defendant's brother. He did not recognize anyone depicted
in the photographs. Notwithstanding this failure, the defendant
renewed his motion for a judicially supervised voir dire of the
female jurors. The judge denied the motion. The judge noted
that the claim was not juror exposure to extraneous information,
see Commonwealth v. Guisti, 434 Mass. 245, 251 (2001), but
rather possible juror bias based on an undisclosed connection to
the prosecutor. The judge concluded, based on all the
circumstances, that the defendant had "failed to make a
reasonable or colorable showing that there was a possible juror
bias that would warrant further inquiry." We agree with the
Appeals Court that the judge did not abuse his discretion in
denying the renewed motion.
Conclusion. We affirm the defendant's convictions of armed
assault with intent to murder and unlawful possession of a
firearm. We remand the case to the Superior Court with
instructions that the judge vacate the sentence, as revised by
the Appellate Division of the Superior Court, of one of the two
safety. The judge's order was affirmed. Commonwealth v.
Richardson, 454 Mass. 1005 (2009).
13
The other two female jurors, according to their juror
questionnaires, were fifty-six and sixty-five years of age.
15
sentencing enhancement counts under G. L. c. 269, §§ 10 (d) and
10G (a), leaving the sentence on the other count in effect.
So ordered.