Commonwealth v. Dancy

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15-P-1139 Appeals Court
COMMONWEALTH vs. DAMONTE DANCY.
No. 15-P-1139.
Suffolk. October 21, 2016. - November 29, 2016.
Present: Cypher, Kinder, & Lemire, JJ.
Firearms.
Complaint received and sworn to in the Dorchester Division
of the Boston Municipal Court Department on September 5, 2012.
After transfer to the Central Division of the Boston
Municipal Court Department, the case was tried before Michael J.
Coyne, J.
Mehmet Baysan for the defendant.
Priscilla A. Guerrero (Helle Sachse, Assistant District
Attorney, with her) for the Commonwealth.
LEMIRE, J. Following a jury trial in the Boston Municipal
Court, the defendant, Damonte Dancy, was convicted of possession
of a loaded firearm without a license, G. L. c. 269, § 10(n).
On appeal, the defendant challenges the sufficiency of the
evidence, the denial of his motion to suppress photographs
2
seized from his cellular telephone, and certain evidentiary
rulings at trial. He also claims that his conviction was
unlawful because he was acquitted of possession of a firearm
without a license under G. L. c. 269, § 10(a), the predicate
offense for conviction under G. L. c. 269, § 10(n).1 Because we
agree that the conviction was unlawful, we reverse without
reaching the defendant's other claims of error.
Background. We summarize the facts the jury could have
found. On the morning of August 25, 2012, the defendant was
among a large group of people attending a festival in
Dorchester. An unknown passerby stopped a Boston police
officer, stated that "a man had a gun," and pointed to a small
group of black males, which included the defendant, walking down
the street away from the parade. Officers then began to follow
and surveil that group. At one point, when the defendant was
near a parked vehicle, one of the officers, who was on the
opposite side of the street, observed the defendant, who was
walking at a fast pace, "[s]low[] down a little bit" next to the
vehicle, and heard a noise that, based on his experience, was
consistent with a gun hitting the pavement. The two other males
from the group were about ten to fifteen feet away from the
1
The defendant was also charged with and acquitted of
possession of ammunition without a firearm identification card
under G. L. c. 269, § 10(h)(1).
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defendant at that time. After stopping the group to ask
questions, the police canvassed the immediate area. A loaded
firearm was recovered from beneath the parked vehicle, and the
defendant was arrested.
The defendant was charged with possession of a firearm
without a license, G. L. c. 269, § 10(a), possession of
ammunition without a firearm identification card, G. L. c. 269,
§ 10(h)(1), and possession of a loaded firearm without a
license, G. L. c. 269, § 10(n). He was acquitted of the § 10(a)
and § 10(h)(1) charges and convicted of the § 10(n) charge.
Discussion. The defendant contends that because he was
acquitted of possession of a firearm under § 10(a), he cannot be
convicted of possession of a loaded firearm under § 10(n),
because § 10(n) is simply a sentencing enhancement provision
that requires a conviction under either § 10(a) or § 10(c) as a
predicate.2 The Supreme Judicial court addressed a similar issue
in Commonwealth v. Loadholt, 456 Mass. 411 (2010), S.C., 460
Mass. 723 (2011). There, the defendant was convicted under
G. L. c. 269, § 10(n); however, due to an oversight by the
Commonwealth, he was never charged with either predicate
offense, G. L. c. 269, § 10(a) or (c). Id. at 423-424. The
2
The defendant was not charged with G. L. c. 269, § 10(c)
(possession of a machine gun or sawed-off shotgun), and there is
nothing in the record to show a violation of that statute.
4
Supreme Judicial Court ordered that the defendant's conviction
under § 10(n) be vacated because "in order properly to convict
the defendant under § 10(n), he first must be charged pursuant
to § 10(a) or (c)." Ibid.
Here, the defendant was charged under G. L. c. 269,
§ 10(a); however, he was acquitted of that crime. The
Commonwealth contends that Loadholt stands for the limited
proposition that a conviction under § 10(n) only requires that
the defendant be charged with a predicate offense, § 10(a) or
(c), but that conviction of a predicate offense is not
necessary. In cases involving statutory construction, we start
"with the language of the statute itself and 'presume, as we
must, that the Legislature intended what the words of the
statute say.'" Commonwealth v. Williamson, 462 Mass. 676, 679
(2012), quoting from Commonwealth vs. Young, 453 Mass. 707, 713
(2009). "The statutory language, when clear and unambiguous,
must be given its ordinary meaning." Bronstein v. Prudential
Ins. Co. of Am., 390 Mass. 701, 704 (1984).
General Laws c. 269, § 10(n), inserted by St. 2006, c. 48,
§ 7, states as follows:
"Whoever violates paragraph (a) or paragraph (c),[3] by
means of a loaded firearm, loaded sawed off shotgun or
loaded machine gun shall be further punished by
imprisonment in the house of correction for not more than 2
3
"[P]aragraph (a) or paragraph (c)" refers to G. L. c. 269,
§ 10(a), and G. L. c. 269, § 10(c), respectively.
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1/2 years, which sentence shall begin from and after the
expiration of the sentence for the violation of paragraph
(a) or paragraph (c)."
We interpret the plain language of this section to require a
finding that § 10(a) or § 10(c) has been violated before the
penalty enhancement provision in § 10(n) can apply. This
interpretation is supported by the clear language of the statute
that provides that "[w]hoever violates paragraph (a) or
paragraph (c), by means of a loaded firearm . . . shall be
further punished" and the sentence must begin after the
"expiration of the sentence for the violation of paragraph (a)"
(emphasis supplied). Further punishment, of course, can only
occur if there is punishment in the first instance. Absent a
conviction for violating § 10(a) or § 10(c), there would be no
punishment to enhance.
It is well established that "mere inconsistency in
verdicts, one of which is an acquittal, will not render the
verdict of guilty erroneous even though such inconsistency may
have indicated the possibility of compromise on the part of the
jury." Commonwealth v. Charles, 463 Mass. 1008, 1008-1009
(2012), quoting from Commonwealth v. Gonzalez, 452 Mass. 142,
150-151 (2008) (that defendant acquitted of possession of
ammunition under G. L. c. 269, § 10[h][1], did not dictate entry
of judgment for defendant on possession of loaded firearm under
§ 10[n], where only ammunition found was inside of loaded
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firearm and defendant also was convicted of possession of
firearm under § 10[a]). But here, there was more than mere
inconsistency. The defendant was acquitted of the offense that
was the predicate for liability under the penalty enhancement
section. In these circumstances, the defendant's conviction
under G. L. c. 269, § 10(n), cannot stand.
The judgment is reversed, the verdict is set aside, and
judgment shall enter for the defendant.
So ordered.