Commonwealth v. Beal ( 2016 )

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SJC-11938
COMMONWEALTH vs. DAUNTE BEAL.1
Suffolk. December 10, 2015. - May 24, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Firearms. Assault and Battery by Means of a Dangerous Weapon.
Assault by Means of a Dangerous Weapon. Practice,
Criminal, Duplicative convictions, Sentence. Evidence,
Prior violent conduct. Due Process of Law, Vagueness of
statute.
Indictments found and returned in the Superior Court
Department on November 14, 2008, and January 30, 2009.
The cases were tried before Thomas E. Connolly, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Jessica L. LaClair for the defendant.
Teresa K. Anderson, Assistant District Attorney (Joseph F.
Janezic, III, Assistant District Attorney, with her) for the
Commonwealth.
DUFFLY, J. This case arises from a shooting that occurred
1
As is our custom, we refer to the defendant by the name
appearing in the indictments.
2
at a cookout in the Dorchester section of Boston on a summer
night in 2008. The defendant was convicted by a Superior Court
jury on indictments charging unlawful possession of a firearm,
G. L. c. 269, § 10 (a); unlawful possession of ammunition, G. L.
c. 269, § 10 (h); carrying a loaded firearm, G. L. c. 269,
§ 10 (n); assault and battery by means of a dangerous weapon
causing serious bodily injury, G. L. c. 265,§ 15A; and two
counts of assault by means of a dangerous weapon, G. L. c. 265,
§ 15B (b).2 The indictments charging unlawful possession of a
firearm also alleged that the defendant previously had been
convicted of two violent crimes and thus was subject to enhanced
penalties under the Massachusetts armed career criminal act,
G. L. c. 269, § 10G (ACCA). In a separate trial following these
convictions, the same jury found the defendant guilty of the
subsequent offender portions of the indictments.
The defendant appealed from his convictions, and we allowed
his application for direct appellate review. The defendant
argues that (1) the evidence was insufficient to prove assault
and battery by means of a dangerous weapon causing serious
bodily injury; (2) the convictions of two counts of assault by
means of a dangerous weapon were duplicative of the conviction
of assault and battery by means of a dangerous weapon causing
2
The jury acquitted the defendant of armed assault with the
intent to commit murder.
3
serious bodily injury; and (3) the conviction of possession of
ammunition is duplicative of the conviction of possession of a
loaded firearm. He also contends that the evidence presented by
the Commonwealth in support of his prior convictions was
insufficient to establish that he had committed a "violent
crime," and therefore he cannot be convicted under the
subsequent offender portion of the indictments. For the reasons
set forth below, we affirm in part and reverse in part.
1. Background. We summarize the facts the jury could have
found, reserving additional facts for later discussion. On the
night of the shooting, Joao Pereira, the shooting victim, and
his brother, Ovidio Pereira,3 were celebrating a friend's
birthday at a cookout at a house on Howard Avenue in Dorchester.
As some of the guests were standing on the front porch, a man
who was walking past the house on the opposite side of the
street said to "Nelito," one of the partygoers, "Oh, what are
you looking at?" Nelito responded, "Oh, you are looking at me,
I'm just looking at you." The man continued walking down the
street, but returned with another man, who asked Joao if he
"[had] a problem." The two men eventually walked away and had a
conversation with two other men in a Toyota Corolla automobile
that was driving past. The Toyota continued up the street,
3
Because the two brothers share a last name, we will refer
to Ovidio Pereira and Joao Pereira by their first names.
4
turned around, and stopped in front of the house where the
cookout was taking place. By that time, there were
approximately eight people standing in front of the house, and
another round of verbal exchanges occurred between the occupants
of the Toyota and the guests at the party.
As the vehicle idled in the street, the driver said, "Oh,
you guys are still looking at us funny." Joao responded,
"Nobody's looking at you," to which the driver retorted, "Oh, if
you keep looking at me funny, I'm going to get out the car and
slap you." Joao replied, "You don't have no right to slap
nobody." Joao and another partygoer then threw beer bottles at
the Toyota; one bottle hit the driver in the head and another
bottle broke the rear side window on the driver's side.
The driver, later identified as the defendant,4 got out of
the vehicle, aimed a gun at the group on the porch, and fired
two shots. The partygoers scattered in different directions.
Joao and Ovidio ran to the back of the house with the defendant
chasing after them; they tried to get inside, but the door was
locked. They ran back to the front porch where the defendant,
standing on the first step, fired several more shots at them.
One bullet struck Joao in the lower back.
4
This identification was through circumstantial evidence
and not witness identification; the identity of the driver was
vigorously contested at trial, as the defendant pursued a
defense of misidentification.
5
The defendant ran back to the Toyota and jumped in, and the
vehicle sped away. Police responded to a 911 call that had been
placed by a neighbor, who had seen the events unfold from his
bedroom window. Shortly thereafter, the defendant was arrested
at his house. He was bleeding from the side of his head, and
had dried blood on his hands and face. The defendant's mother
provided police with a key to the Toyota that the defendant had
given her.5 Investigating officers found a firearm on the floor
of the Toyota and broken glass scattered throughout the vehicle.
Swabs of reddish brown stains were collected from the firearm,
the ground in front of the Howard Avenue house, and the floor of
an apartment the defendant had visited shortly before his
arrest. Tests performed on the deoxyribonucleic acid (DNA) that
was recovered from these locations included the defendant as a
possible contributor to each of the samples.6
5
After the shooting, the defendant was driven in the
Toyota, which belonged to his mother, to a nearby apartment
building. He left the Toyota in the parking lot of that
building.
6
A deoxyribonucleic acid (DNA) criminalist from the Boston
police crime laboratory testified that she extracted the same
DNA profile from each of the three samples, and that she was
able to "get a full complete profile [of] characteristics at all
[sixteen] locations." When asked about the statistical
significance of her findings that the defendant was a "possible
source of the DNA," she explained that the DNA profiles
extracted from the three samples were "the same exact profile"
extracted from a DNA swab taken from the defendant, and that the
profile "could be found in 1 in 110 quintillion Caucasians, 1 in
120 quintillion African-Americans, and 1 in 1.6 quintillion
6
The defendant testified in his own defense and admitted to
having been in the Toyota on the night of the shooting, but
claimed that another occupant of the vehicle had fired the
shots. In support of this contention, the defendant asserted
that he was not wearing the white T-shirt and dark baseball hat
that a witness testified the shooter had been wearing.
At the close of the Commonwealth's case and again at the
close of all the evidence, the defendant filed motions for
required findings of not guilty; the motions were denied. After
the jury returned their verdicts, a trial was conducted on the
subsequent offender portion of the indictments. The same jury
heard evidence that the defendant previously had been convicted,
pursuant to his guilty pleas, of assault and battery upon a
public employee and assault and battery. Certified copies of
these convictions were introduced, and the defendant stipulated
that he was the individual who had been convicted of those
crimes. After the Commonwealth rested, the defendant filed a
motion for a required finding, arguing that the Commonwealth had
failed to establish that both prior offenses constituted
"violent crimes" within the meaning of the ACCA. The judge
Southeastern Hispanics." The criminalist testified that the DNA
profile was "very rare," and that the statistics describing the
probability that a randomly chosen person would have the same
DNA profile include people of all races, although only three
racial categories are identified by name. The defendant is from
Cape Verde.
7
denied the motion, and the jury found him guilty.
2. Sufficiency of the evidence of assault and battery by
means of a dangerous weapon resulting in serious bodily injury.
We review the denial of a motion for a required finding to
determine whether "any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt."
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979). The defendant
contends that the evidence was insufficient to support a
conviction of assault and battery by means of a dangerous weapon
resulting in serious bodily injury, G. L. c. 265, § 15A (c) (i),
because the Commonwealth did not introduce testimony from Joao,
testimony from medical personnel who treated his injuries, or
his medical records.
"Serious bodily injury" means "bodily injury which results
in a permanent disfigurement, loss or impairment of a bodily
function, limb or organ, or a substantial risk of death." G. L.
c. 265, § 15A (d).7 We have said that "impairment of a limb
occurs when, because of significant damage to its structure, its
capacity to perform its usual function is compromised."
7
General Laws c. 265, § 13A (b) (i), establishes enhanced
penalties for an assault and battery that causes "serious bodily
injury," and uses the same definition of "serious bodily injury"
as does G. L. c. 265, § 15A (d). See G. L. c. 265, § 13A (c).
Therefore, we look to cases interpreting G. L. c. 265,
§ 13A (c), for guidance.
8
Commonwealth v. Scott, 464 Mass. 355, 359 (2013). Clearly, "the
loss of a limb . . . would have a substantial impact on a victim
on a par with injuries causing permanent disfigurement or
risking death." Id. But the impairment "need not be permanent
to meet the definition of 'serious bodily injury.'"
Commonwealth v. Marinho, 464 Mass. 115, 118 (2013).
Here, the evidence established that the defendant shot Joao
in the lower back. Ovidio testified that Joao spent two months
in a Boston hospital, where he was taken immediately following
the shooting, and then spent six months at an inpatient
rehabilitation hospital. Upon returning home, Joao used a
wheelchair; he was unable to walk without the use of crutches
and braces on his legs; he had to be carried up and down the
stairs leading to his second-floor apartment; and he was unable
to get in and out of the shower stall without assistance. One
witness testified that Joao has not been able to walk properly
since the shooting.
Jurors are permitted to draw reasonable inferences from the
evidence based on their common sense and life experience. See
Commonwealth v. Kostka, 370 Mass. 516, 536 (1976). Based on the
evidence presented in this case, the jury were permitted to find
that the gunshot wound inflicted by the defendant caused Joao to
suffer an impairment of his limbs, which resulted in
"significant damage" to the structure of his legs, and that the
9
capacity of his legs "to perform [their] usual function [was]
compromised." See Commonwealth v. Scott, supra. The impairment
of Joao's legs plainly meets the definition of substantial
bodily injury as set forth in the statute. See id.; G. L.
c. 265, § 15A (d). Moreover, Joao was able to walk without
impediment before he was shot in the back, and after the
shooting he was at first unable to walk and later unable to walk
without assistance. It would have been reasonable for the jury
to infer that the gunshot caused the impairment, based on the
chronology of events following the shooting, and in the absence
of any other theory presented to explain the cause of Joao's
injuries. See Commonwealth v. Marinho, supra at 119
(Commonwealth must prove "that the defendant either directly
caused or 'directly and substantially set in motion a chain of
events that produced' the serious injury in a natural and
continuous sequence").
The defendant maintains that the jury could not reach this
conclusion absent medical evidence or testimony from the victim.
In these circumstances, we do not agree. Although the evidence
did not explain the precise biological mechanism by which the
gunshot wound could have impaired Joao's ability to walk or to
use his legs without assistance, the jury were permitted to
conclude, based on common sense, that the gunshot wound to
Joao's back compromised his ability to use his lower limbs. The
10
defendant's reliance on Commonwealth v. Scott, supra, is
misplaced. There, the victim's medical records established that
she suffered from "a 'grade II' laceration of the liver," id.
at 357, but the Commonwealth did not introduce medical testimony
to explain the "technical terminology" used in the reports or to
establish whether such a laceration "affected the liver's
ability to fulfil its functional role." See id. at 362, 364.
Absent such evidence, we determined that the jury could not have
reached the conclusion that the victim's injury constituted an
impairment of her liver "based on information that was within
the ordinary, common experience of a reasonable juror." Id.
at 364. By contrast, the evidence of the injuries presented
here -- the inability to use one's legs, the need to use a
wheelchair, and the necessity of crutches and braces in order to
walk -- was within the ordinary, common experience of a
reasonable juror. The jury could have concluded, without undue
speculation, that the gunshot wound caused Joao's injuries.
Thus, the evidence supports the conviction of assault and
battery resulting in "serious bodily injury."
3. Duplicative convictions. The defendant contends that
his convictions on two indictments charging assault by means of
a dangerous weapon (one assault against Joao and the other
against Ovidio) were duplicative of his conviction of the
greater offense of assault and battery by means of a dangerous
11
weapon causing serious bodily injury against Joao. The
Commonwealth's theory at trial was that the defendant fired
shots at Joao and Ovidio in two distinct episodes: one when the
defendant got out of the Toyota and fired two shots, and another
after the defendant chased Joao and Ovidio to the rear of house
and back around to the front porch, at which point he fired
several more shots, one of which hit Joao in the back. The
judge did not instruct the jury that these offenses must be
based on separate and distinct acts, nor did the judge explain
which of the alleged acts corresponded to each of the charges.
Because the defendant did not raise the issue of
duplicative convictions in the Superior Court, we review his
claim to determine whether there was an error that created a
substantial risk of a miscarriage of justice. See Commonwealth
v. Kelly, 470 Mass. 682, 697-698 (2015). As the defendant
argues, assault by means of a dangerous weapon is a lesser
included offense of assault and battery by means of a dangerous
weapon causing serious bodily injury. See Commonwealth v.
Porro, 458 Mass. 526, 529 (2010). "Convictions of both greater
and lesser included acts are permitted only when they 'rest on
separate and distinct acts.'" Commonwealth v. Gouse, 461 Mass.
787, 798 (2012), quoting Commonwealth v. Jackson, 80 Mass. App.
Ct. 528, 529 (2011). The jury must determine whether a
defendant's acts "constitute separate and distinct acts or must
12
be considered a single crime." Commonwealth v. Kelly, supra at
699, quoting Commonwealth v. Vick, 454 Mass. 418, 435 n.16
(2009).
We examine the convictions of assault by means of a
dangerous weapon and assault and battery by means of a dangerous
weapon causing serious bodily injury based on the actions
against Joao. As we explained in Commonwealth v. Kelly, supra,
even if "there was evidence of separate and distinct acts
sufficient to convict with respect to each . . . charge, the
judge's failure to instruct the jury that each charge must be
based on a separate and distinct act create[s] a substantial
risk of a miscarriage of justice." Id. at 702. Accordingly,
although the prosecutor argued in closing that the defendant's
shooting at Joao occurred in two separate episodes that could
support two distinct convictions, and the facts might support
that conclusion, we are unable to determine on which facts each
conviction rested. Contrary to the Commonwealth's argument, the
judge's instruction that each charge must be considered
separately does not cure the error. See id. at 701. Therefore,
because we have "serious doubt" whether the jury impermissibly
based the convictions of the greater and lesser included
offenses on the same act, the conviction of assault by means of
a dangerous weapon against Joao must be vacated. See id. at
700-701.
 13
A different analysis applies to the defendant's conviction
of assault by means of a dangerous weapon against Ovidio. As to
this charge, the judge instructed that the defendant's acts must
have been directed against Ovidio. The defendant was not
charged with the greater offense of assault and battery by means
of a dangerous weapon against him. In this context, even if the
jury convicted the defendant of the assault against Ovidio based
on the gunshot that hit Joao, which is the same act underlying
the defendant's conviction of assault and battery by means of a
dangerous weapon against Joao, those two convictions are not
duplicative. "'[W]henever a single criminal transaction gives
rise to crimes of violence which are committed against several
victims, then multiple indictments (and punishments)' for the
crime against each victim 'are appropriate.'" Commonwealth v.
Traylor, 472 Mass. 260, 268 (2015), quoting Commonwealth v.
Donovan, 395 Mass. 20, 31 (1985). Consequently, the judge was
not required to instruct the jury on separate and distinct acts
with respect to this charge.
The defendant also contends, and the Commonwealth now
concedes, that his conviction of unlawful possession of
ammunition under G. L. c. 269, § 10 (h), is a lesser offense
included within his conviction of unlawful possession of a
loaded firearm under G. L. c. 269, § 10 (n). See Commonwealth
v. Johnson, 461 Mass. 44, 52-54 (2011). We agree that where all
14
of the ammunition was loaded in the firearm, these convictions
are duplicative, and conclude that the conviction under G. L.
c. 269, § 10 (h), cannot stand.
4. Conviction under the Massachusetts armed career
criminal act. The ACCA imposes an enhanced sentence on an
individual who is convicted of possession of a firearm if that
person previously has been convicted of a "violent crime" or a
serious drug offense. See Commonwealth v. Eberhart, 461 Mass.
809, 814 (2012) (Eberhart); G. L. c. 269, § 10G. Under the
ACCA, a "violent crime" is "any crime punishable by imprisonment
for a term exceeding one year . . . that: (i) has as an element
the use, attempted use or threatened use of physical force or a
deadly weapon against the person of another; (ii) is burglary,
extortion, arson or kidnapping; (iii) involves the use of
explosives; or (iv) otherwise involves conduct that presents a
serious risk of physical injury to another." G. L. c. 140,
§ 121. See G. L. c. 269, § 10G (e) (defining "violent crime" as
having meaning set forth in G. L. c. 140, § 121, for purposes of
enhanced sentences for firearms and ammunition convictions).
Thus, to constitute a violent crime under the ACCA, the crime
must fall within the scope of either (1) the force clause;
(2) the enumerated crimes provision; or (3) the residual clause.
Eberhart, supra at 815.
15
The defendant previously was convicted of assault and
battery, G. L. c. 265, § 13A (a), and assault and battery upon a
public employee, G. L. c. 265, § 13D. As he did at trial, the
defendant argues that the certified copies of convictions, which
were the only evidence the Commonwealth introduced, were
insufficient to prove that he committed two "violent crimes"
within the meaning of the ACCA. After the case was fully
briefed, the United States Supreme Court decided Johnson v.
United States, 135 S. Ct. 2551, 2555-1556, 2563 (2015)
(Johnson), holding that the residual clause of the "violent
felony" provision of the Federal armed career criminal act
(Federal ACCA) is unconstitutionally vague under the due process
clause of the Fourteenth Amendment to the United States
Constitution. In terms of its definitions of predicate crimes,
the Massachusetts ACCA "largely replicates" the Federal ACCA,
and, as a consequence, we often look to the Federal courts for
guidance on issues relating to the meaning and scope of this
statute. See Eberhart, supra. The parties submitted
supplemental briefs setting forth their positions on how
Johnson, supra, affects the inquiry in this case.
Under the invalidated residual clause in the Federal ACCA,
18 U.S.C. § 924(e)(2)(B) (2012), a crime constituted a "violent
felony" if it was punishable by imprisonment for more than one
year and "otherwise involve[d] conduct that present[ed] a
16
serious potential risk of physical injury to another."8 The
United States Supreme Court's decision in Johnson, supra at
2557, began by acknowledging the well-established rule that
courts must use the "categorical approach" to determine whether
an offense constitutes a violent felony by "pictur[ing] the kind
of conduct that the crime involves in 'the ordinary case,'
and . . . judg[ing] whether that abstraction presents a serious
potential risk of physical injury" (citation omitted). The
Court then concluded, based largely on the arbitrariness of
hypothesizing the "ordinary case" of any given crime, that
"[i]ncreasing a defendant's sentence under the clause denies due
process of law" because "the indeterminacy of the wide-ranging
inquiry required by the residual clause both denies fair notice
to defendants and invites arbitrary enforcement by judges." Id.
8
At the time the United States Supreme Court issued its
decision in Johnson v. United States, 135 S. Ct. 2551 (2015)
(Johnson), a "violent felony" under the Federal armed career
criminal act (Federal ACCA) was defined as:
"any crime punishable by imprisonment for a term exceeding
one year . . . that --
"(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
"(ii) is burglary, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another."
18 U.S.C. § 924(e)(2)(B) (2012). Congress does not yet appear
to have amended the language of the Federal ACCA to remove the
residual clause that the Court concluded was invalid.
17
The Court was particularly concerned with the "grave
uncertainty" regarding "how to estimate the risk posed by a
crime" and "how much risk it takes for a crime to qualify as a
violent felony." Id. at 2557-2558. The Court looked no further
than its own cases to find a level of uncertainty that was
constitutionally impermissible. See id. at 2558-2560. The
Court in Johnson thus invalidated the residual clause of the
Federal ACCA. Id. at 2557.
The language of the residual clause in the Massachusetts
ACCA is almost identical to that in the Federal ACCA; the only
difference is that the Federal ACCA uses the term "potential" to
qualify the level of risk required. Compare 18 U.S.C.
§ 924(e)(2)(B) ("conduct that presents a serious potential
risk"), with G. L. c. 140, § 121 ("conduct that presents a
serious risk"). We think the additional term does not create a
meaningful difference between the two provisions.9 We agree with
the Court's analysis in Johnson, supra, and conclude that the
residual clause of the Massachusetts ACCA is unconstitutionally
vague.
We turn next to the defendant's argument that the evidence
was insufficient to support his conviction under the ACCA
9
We note also that, in its supplemental brief, the
Commonwealth supports the position that Johnson renders the
residual clause of the Massachusetts ACCA unconstitutionally
vague, on the same reasoning as the United States Supreme Court.
18
because the Commonwealth failed to present evidence that his two
predicate offenses were "violent crimes." As noted, the only
evidence the Commonwealth introduced relative to those
convictions was the copies of the certified convictions of the
defendant's prior offenses (assault and battery, and assault and
battery on a public employee).
Our decision in Eberhart resolves this issue. In that
case, we explained that we use the "modified categorical
approach" to determine whether a defendant had been convicted of
a violent crime when the defendant was "convicted under a broad
statute that encompasses multiple crimes," not all of which are
categorically "violent crimes." Eberhart, supra at 816. Unlike
the Federal ACCA, under Massachusetts law a defendant is
entitled to a jury trial to determine whether a sentence
enhancement for being an armed career criminal is applicable.10
See id. The evidence presented at that trial "must suffice to
prove, beyond a reasonable doubt, that the [previous] crime for
which [the defendant] was convicted was a violent crime." Id.
10
Under Federal law, a judge determines whether a
defendant's prior offenses are considered predicate felonies
under the Federal ACCA; the judge's inquiry is limited to trial
records of the prior felonies. See Commonwealth v. Eberhart,
461 Mass. 809, 816 (2012). In applying the modified categorical
approach under Federal law, courts are permitted to examine "the
elements, rather than the facts, of a crime." Descamps v.
United States, 133 S. Ct. 2276, 2285 (2013).
19
Applying this analysis, in Eberhart, supra at 818, we
concluded that only two of the three variants of common-law
battery encompassed by G. L. c. 265, § 13A -- harmful battery
and reckless battery -- qualify as "violent crimes" under the
force clause, which requires that the crime "has as an element
the use, attempted use or threatened use of physical force."11
See G. L. c. 140, § 121. Offensive battery, which "can be
committed through such de minimis touchings as tickling and
spitting," is not a violent crime. Eberhart, supra at 818-819.
Because not all of the crimes encompassed within the battery
statute are violent crimes, we concluded that "a certified
conviction of assault and battery is insufficient to prove
beyond a reasonable doubt that a defendant committed a 'violent
crime' for the purpose of sentencing enhancement under [the
ACCA]." Id. at 819. Here, as discussed, the only evidence
presented to establish that the defendant's prior conviction of
assault and battery was a violent crime was a certified copy of
the conviction. The Commonwealth now concedes that, for the
reasons set forth in Eberhart, supra, this evidence was
insufficient to support the defendant's conviction under the
ACCA based on the predicate offense of assault and battery. Id.
11
In Commonwealth v. Eberhart, supra at 819, we also
reached the same determination under the residual clause. In
light of our conclusion today that the residual clause is
unconstitutionally vague, we do not consider the defendant's
prior acts under the residual clause.
20
The determination that assault and battery is not
categorically a "violent crime" leads to the conclusion that
assault and battery upon a public employee also is not a violent
crime. The offense of assault and battery upon a public
employee, G. L. c. 265, § 13D, differs from assault and battery,
G. L. c. 265, § 13A, in three respects. First, the crime must
be committed "upon any public employee when such person is
engaged in the performance of his duties at the time of such
assault and battery." G. L. c. 265, § 13D. Second, the offense
carries a minimum punishment of imprisonment for ninety days,
while assault and battery carries no minimum punishment. Id.
Third, a person who commits that offense may be arrested upon
probable cause without a warrant if the victim is a public
employee operating a public transit vehicle. Id.
These differences, however, do not change the underlying
acts that constitute an assault and battery. Like the general
crime of assault and battery, assault and battery upon a public
employee can be committed through a harmful battery, a reckless
battery, or an offensive battery. Therefore, the same reasoning
underlying our conclusion that assault and battery is not a
violent crime, see Eberhart, supra at 818-819, leads to the
conclusion that assault and battery on a public employee is not
categorically a violent crime. See id. at 814, 818, quoting
21
G. L. c. 140, § 121, and Commonwealth v. Colon, 81 Mass. App.
Ct. 8, 12-22 (2011).
Pointing to cases from Federal courts and the Appeals Court
that have concluded that assault and battery on a police officer
(not public employee) is categorically a violent crime under the
now-defunct residual clause, see, e.g., United States v. Dancy,
640 F.3d 455, 469-470 (1st Cir.), cert. denied, 132 S. Ct. 564
(2011), and Commonwealth v. Colon, supra at 22-23, the
Commonwealth urges us to conclude that the offense is
categorically a violent crime under the force clause. We
decline to adopt this approach. General Laws c. 265, § 13D,
encompasses all assault and batteries against "any public
employee," and is not restricted to police officers. It would
be contrary to the "categorical approach" to determine that a
single subset of a particular offense is categorically a violent
crime. See, e.g., Descamps v. United States, 133 S. Ct. 2276,
2285 (2013) (describing categorical approach and modified
categorical approach).
More importantly, however, we do not think that the
reasoning employed by courts that have concluded that assault
and battery against a public employee, when committed against a
police officer, constitutes a violent crime under the residual
clause is applicable to the inquiry under the force clause. For
instance, in Commonwealth v. Colon, supra at 22, the Appeals
22
Court concluded that an assault and battery committed against a
police officer, even if of the offensive battery type, is a
violent crime under the residual clause because "even a minor
dispute with a civilian distracts from the officer's duties" and
"creates a public risk." This line of reasoning is not relevant
to our inquiry in light of the conclusion we adopt today
concerning the constitutional infirmity of the residual clause.
The question we must answer is whether assault and battery upon
a public employee qualifies as a "violent crime" under the force
clause. For the reasons set forth with respect to our analysis
of assault and battery, we conclude that it does not.
Consequently, because the Commonwealth failed to introduce
evidence other than the certified copies of the defendant's
convictions to support the charge under the ACCA, the evidence
was insufficient for a conviction, where the predicate offense
was assault and battery against a public official.
Finally, we decline the Commonwealth=s request that we
remand the matter so that the Commonwealth may present at a
second trial evidence sufficient to establish that the defendant
violated the ACCA. The prohibition against double jeopardy
"forbids a second trial for the purpose of affording the
prosecution another opportunity to supply evidence which it
failed to muster in the first proceeding." Burks v. United
States, 437 U.S. 1, 11 (1978). See Berry v. Commonwealth, 393
23
Mass. 793, 797-798 (1985). As the Commonwealth argues, "the
double jeopardy principle does not automatically bar retrial
'where an insufficiency of evidence appeared only when material
held on appellate review to have been erroneously admitted was
notionally removed from the case'" (citation omitted).
Commonwealth v. DiBenedetto, 414 Mass. 37, 45 (1992), S.C., 427
Mass. 414 (1998). But that principle is not applicable in this
case. Here, the jury convicted the defendant based on evidence
properly introduced by the Commonwealth, and our reversal of the
conviction rests on the ground that the evidence was
insufficient to support it. There was no improper receipt or
exclusion of evidence, only a failure to marshal the evidence
necessary to support a conviction. In such a context, remand is
not appropriate.12 Marshall v. Commonwealth, 463 Mass. 529, 538
(2012) ("The State . . . generally cannot retry a defendant
12
We also decline the Commonwealth's suggestion that remand
is appropriate because the judge incorrectly instructed the
jury. Before trial, the defendant asserted that the
Commonwealth's reliance on the certified copies of his
convictions would be insufficient because neither of his prior
offenses is categorically a "violent crime." The prosecutor
countered that the Commonwealth was not required to submit
evidence other than the certified convictions on the issue of
"violent crime." The judge agreed with the Commonwealth, and
the prosecutor chose to rely solely on the certified convictions
at trial. The judge then incorrectly instructed the jury that
the defendant's prior convictions were "violent crimes by
definition" under Massachusetts law. However, the dispositive
issue here is sufficiency of the evidence; even if the judge had
instructed the jury properly, the result on appeal would be no
different because the evidence the Commonwealth introduced was
insufficient.
24
'when an appellate court overturns a conviction because of
insufficient evidence'" [citation omitted]).
5. Conclusion. The judgment of conviction of assault by
means of a dangerous weapon against Joao Pereira, G. L. c. 265,
§ 15B (b), and the judgment of conviction under the armed career
criminal act, G. L. c. 269, § 10G, are reversed. The remaining
convictions are affirmed.
So ordered.