Document Info

DocketNumber: AC 14-P-753

Judges: Cypher, Meade, Massing

Filed Date: 9/17/2015

Status: Precedential

Modified Date: 11/10/2024

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    14-P-753                                             Appeals Court
    COMMONWEALTH     vs.   DOMINIC REZENDES.
    No. 14-P-753.
    Plymouth.       May 11, 2015. - September 17, 2015.
    Present:    Cypher, Meade, & Massing, JJ.
    Firearms. Assault and Battery by Means of a Dangerous Weapon.
    Practice, Criminal, Prior conviction, Sentence. Delinquent
    Child. Words, "Violent crime," "Deadly weapon."
    Indictments found and returned in the Superior Court
    Department on February 18, 2011.
    The cases were tried before Merita A. Hopkins, J.
    James A. Reidy for the defendant.
    Jessica Heaton, Assistant District Attorney, for the
    Commonwealth.
    CYPHER, J.      This case requires us to consider the meaning
    of "violent crime" as used in the Massachusetts Armed Career
    Criminal Act (Massachusetts ACCA or statute), G. L. c. 269,
    § 10G, inserted by St. 1998, c. 180, § 71.     Specifically, we
    must interpret the term "deadly weapon," as used in the
    2
    definition of violent crime in G. L. c. 140, § 121, as amended
    by St. 1998, c. 180, § 8.    The defendant, Dominic Rezendes,
    appeals from a conviction under § 10G(c) of the Massachusetts
    ACCA, which was based, in part, on a juvenile adjudication for
    assault and battery by means of a dangerous weapon (a pen).
    We first conclude that the term "deadly weapon" in this
    context is distinct from the term "dangerous weapon" as applied
    in our common law.    We further hold that for the purposes of
    conviction under G. L. c. 269, § 10G, a deadly weapon is a
    weapon that is inherently deadly, and therefore conclude that a
    pen is not a deadly weapon under this statute.    Accordingly,
    under these circumstances, the defendant's juvenile adjudication
    for assault and battery by means of a dangerous weapon could not
    have formed the basis for a conviction under the Massachusetts
    ACCA.   We reverse the defendant's conviction under G. L. c. 269,
    § 10G(c), and remand for resentencing under G. L. c. 269,
    § 10G(b).
    Background.    In July, 2013, a jury convicted the defendant
    on two indictments charging assault and battery by means of a
    dangerous weapon and three indictments involving weapons
    charges:    unlawful possession of a firearm, in violation of
    G. L. c. 269, § 10(a); unlawful discharge of a firearm within
    500 feet of a building, in violation of G. L. c. 269, § 12E; and
    unlawful possession of a loaded firearm, in violation of G. L.
    3
    c. 269, § 10(n).1   The indictment charging unlawful possession of
    a firearm carried an additional count of being an armed career
    criminal2 under the Massachusetts ACCA, based on two prior
    convictions and an adjudication of delinquency for assault and
    battery.   Following a jury-waived trial on this count of the
    indictment, the judge concluded that the defendant had committed
    three predicate offenses and found him guilty of being an armed
    career criminal.3
    The three predicate offenses included an adjudication as
    delinquent for assault and battery by means of a dangerous
    weapon (a pen) from when the defendant was sixteen years old, as
    well as guilty pleas as an adult to charges of assault and
    1
    The defendant does not challenge these convictions, and
    the facts associated with these convictions are not relevant to
    his appeal.
    2
    "The term 'armed career criminal' derives from the Federal
    Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e) (2006),"
    Commonwealth v. Anderson, 
    461 Mass. 616
    , 626 n.10 (2012), but it
    also is used consistently in reference to the Massachusetts
    ACCA.
    3
    Consistent with the mandatory minimum sentencing
    guideline, the judge sentenced the defendant to from fifteen to
    sixteen years in State prison for carrying a firearm with three
    predicate offenses under the Massachusetts ACCA. She then
    sentenced him to from nine and one-half to ten years in State
    prison for each of the assault and battery by means of a
    dangerous weapon charges and three months in the house of
    correction for the firearm discharge conviction, all of them to
    run concurrently with the armed career criminal sentence.
    Lastly, the judge sentenced him to one day in the house of
    correction for the possession of a loaded firearm charge to be
    served from and after his armed career criminal sentence.
    4
    battery and assault and battery by means of a dangerous weapon.
    The juvenile adjudication involved an altercation at a juvenile
    detention facility in which the defendant was seen "gouging at
    the victim" with a pen.
    Discussion.   The Massachusetts ACCA provides for enhanced
    penalties for the unlawful possession of a firearm by
    individuals who have been previously convicted of violent
    crimes, as defined in G. L. c. 140, § 121.4   For the purposes of
    the statute, the Legislature defined violent crime as follows:
    "any crime punishable by imprisonment for a term exceeding
    one year, or any act of juvenile delinquency involving the
    use or possession of a deadly weapon that would be
    punishable by imprisonment for such term if committed by an
    adult, 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" (emphasis supplied).
    G. L. c. 140, § 121.
    The defendant argues that because his prior juvenile
    adjudication for assault and battery by means of a dangerous
    weapon did not involve a deadly weapon, it was not a violent
    crime under the Massachusetts ACCA, and, therefore, could not
    4
    The statute also applies to individuals with prior
    convictions of serious drug offenses, as defined in G. L.
    c. 269, § 10G(e), or some combination of violent crimes and
    serious drug offenses. The statute requires the imposition of
    mandatory minimum sentences of increasing severity for
    individuals with one, two, or three qualifying convictions or
    adjudications.
    5
    qualify as a predicate offense to support a conviction as an
    armed career criminal under G. L. c. 269, § 10G(c).      Because
    this is a question of law, we conduct an independent review.
    See Commonwealth v. Rogers, 
    444 Mass. 234
    , 235 n.2 (2005).
    It is undisputed that, if committed by an adult, an assault
    and battery by means of a dangerous weapon would be punishable
    by imprisonment for a term exceeding one year and thus would
    constitute a violent crime under the Massachusetts ACCA.
    However, when committed by a juvenile, an act may be used to
    enhance a firearm sentence only when it "involv[ed] the use or
    possession of a deadly weapon."   G. L. c. 140, § 121.    See
    Commonwealth v. Anderson, 
    461 Mass. 616
    , 628-629 (2012).
    Therefore, the defendant's appeal hinges on whether there is a
    distinction between the term "deadly weapon," as used in this
    definition of violent crime, and "dangerous weapon," as that
    term is defined under our common law.
    1.   Legal significance of the term "deadly weapon."
    Because the Legislature did not define "deadly weapon" in § 121,5
    5
    By the explicit terms of G. L. c. 140, § 121, its
    definitions do not apply to other terms defined within that
    section itself, so no other language in the section informs the
    meaning of the term "deadly weapon." See Commonwealth v.
    Foreman, 
    63 Mass. App. Ct. 801
    , 803 (2005). Furthermore, the
    Legislature has not defined "deadly weapon" elsewhere in the
    General Laws. In addition to its use in G. L. c. 140, § 121,
    the term "deadly weapon" appears only three other times in the
    General Laws, none of which provide guidance on the
    Legislature's intended meaning of the term in the context at
    6
    we apply well-established principles of statutory construction
    to determine its meaning.    The Commonwealth argues that the
    Legislature intended "deadly weapon" to be interpreted as
    synonymous with the term "dangerous weapon" as used in our
    common law.   We disagree.
    In general, "a statute is to be interpreted 'according to
    the intent of the Legislature ascertained from all its words
    construed by the ordinary and approved usage of the language,
    considered in connection with the cause of its enactment, the
    mischief or imperfection to be remedied and the main object to
    be accomplished, to the end that the purpose of its framers may
    be effectuated.'"   Commonwealth v. Welch, 
    444 Mass. 80
    , 85
    (2005), quoting from Commonwealth v. Galvin, 
    388 Mass. 326
    , 328
    (1983).   To interpret the term "deadly weapon" as
    interchangeable with the term "dangerous weapon" in this context
    would be inconsistent with the ordinary usage of the terms, the
    intent of the Legislature, and the language of the Federal
    analog, on which the Massachusetts ACCA was modeled.
    a.    Plain meaning.   We begin of course "with the language
    of the statute itself and 'presume, as we must, that the
    Legislature intended what the words of the statute say.'"
    issue here. See G. L. c. 209A, § 6; G. L. c. 258E, § 8; and
    G. L. c. 127, § 133E. Likewise, the Legislature has not defined
    "dangerous weapon" in the General Laws. See Commonwealth v.
    Wynton W., 
    459 Mass. 745
    , 747 (2011).
    7
    Commonwealth v. Williamson, 
    462 Mass. 676
    , 679 (2012), quoting
    from Commonwealth v. Young, 
    453 Mass. 707
    , 713 (2009).       Here,
    had the Legislature intended for the Massachusetts ACCA to apply
    to all juvenile adjudications involving dangerous weapons, it
    could have used the term "dangerous weapon" rather than "deadly
    weapon."
    Furthermore, "[w]here the language of a statute is plain,
    it must be interpreted in accordance with the usual and natural
    meaning of the words."   Commonwealth v. Kerns, 
    449 Mass. 641
    ,
    651 (2007) (quotation omitted).    See G. L. c. 4, § 6, third par.
    ("Words and phrases shall be construed according to the common
    and approved usage of the language; but technical words and
    phrases and such others as may have acquired a peculiar and
    appropriate meaning in law shall be construed and understood
    according to such meaning").     Contrary to the Commonwealth's
    argument, the words "deadly" and "dangerous" do not have the
    same meaning under ordinary usage.     Webster's Third New
    International Dictionary 580 (2002) (Webster's) defines "deadly"
    as "tending to produce death."     Notably, it identifies "mortal,"
    "lethal," "fatal," and "deathly" as synonyms of deadly, but does
    not include dangerous on this list.     In contrast, Webster's
    defines "dangerous" as "able or likely to inflict injury;
    causing or threatening harm."     
    Id. at 573.
                                                                         8
    These definitions make clear that "deadly" has both a
    stronger and narrower meaning than "dangerous."    "Deadly"
    connotes an inevitability of death, or at least a higher
    certainty of death than does "dangerous."     In other words, what
    is deadly is patently also dangerous, but it does not follow
    that what is dangerous is necessarily deadly.
    Our conclusion is bolstered by the additional and similar
    principle of statutory construction that requires us to presume
    that the Legislature was well aware of the use of the term
    "dangerous weapon" in our statutes and the meaning attributed to
    that term in our decades of decisional law.    See generally
    Commonwealth v. Russ R., 
    433 Mass. 515
    , 520 (2001) ("Legislature
    is presumed to be aware of existing statutes when it . . .
    enacts a new one"); Commonwealth v. Garcia, 
    82 Mass. App. Ct. 239
    , 244 (2012).   Together, our decisional and statutory law
    outlines an expansive description of what may constitute a
    dangerous weapon, and that description may well draw within its
    purview weapons that may be dangerous, but not deadly.    See
    generally Commonwealth v. Appleby, 
    380 Mass. 296
    , 303-304
    (1980).
    This historical background, in addition to the plain
    statutory language, suggests that the Legislature intended to
    distinguish the type of weapon that would support a conviction
    under the Massachusetts ACCA by requiring proof of not merely a
    9
    dangerous weapon, but proof of a deadly weapon.    That the
    Legislature used the term "deadly weapon" and not "dangerous
    weapon" speaks to its intent that the term carry a narrow
    meaning in the context of the armed career criminal statute.     By
    contrast, the Commonwealth's proposed interpretation would
    eliminate the significance of the Legislature's choice of
    language.    We instead construe the statute so as to give meaning
    to all of its terms.    See Commonwealth v. Mendonca, 50 Mass.
    App. Ct. 684, 687 (2001).
    The Commonwealth correctly notes that the terms "dangerous
    weapon" and "deadly weapon," at times, have been used
    interchangeably in our case law.   However, until recently, no
    statute has required us to consider the difference between the
    two terms.   We have not found, and the Commonwealth does not
    identify, any published case in which our court or the Supreme
    Judicial Court has compared the definitions of the two terms or
    adopted a position that the two terms are synonymous as a matter
    of law, and we decline to adopt such a position here.6
    6
    The terms are not used interchangeably in two of the cases
    on which the Commonwealth relies. At issue in Commonwealth v.
    Shea, 
    38 Mass. App. Ct. 7
    (1995), was whether the ocean can be
    considered a weapon within the meaning of G. L. c. 265, § 15A.
    Our only mention of the term "deadly weapon" in that case was in
    a footnote explaining that the definition of dangerous weapon
    adopted in the Proposed Criminal Code of Massachusetts c. 263,
    § 3(i) (noted with approval in Commonwealth v. Tarrant, 
    367 Mass. 411
    , 417 n.6 [1975], to which we were citing), tracked the
    definition of "deadly weapon" set out in § 210 of the Model
    10
    Furthermore, the inherent deadliness of the weapon was not at
    issue in any of the cases in which the terms were used
    interchangeably.7
    Penal Code (1980). See Shea, supra at 15 n.7. In so observing,
    we did not adopt a definition of deadly weapon or suggest that
    the two terms are in fact synonymous under Massachusetts law.
    Rather, we were noting that both definitions require that a
    weapon be some sort of object or instrumentality that was
    capable of being possessed or controlled, unlike the ocean.
    We also do not read the Supreme Judicial Court's use of the
    terms in Commonwealth v. 
    Kerns, 449 Mass. at 651-655
    , to be
    interchangeable. Kerns involved a juvenile who was charged with
    "threatening to use deadly weapons" under G. L. c. 269, § 14(b).
    
    Id. at 642.
    The court interpreted the statute at issue in that
    case as intending to "punish the communication of any threat
    that a deadly, dangerous, or destructive device, substance, or
    item is or will be present or used at a specified place or
    location." 
    Id. at 652.
    The court's use of the three adjectives
    suggests that it did not assign precisely the same meaning to
    each. This interpretation is consistent with the plain language
    of G. L. c. 269, § 14(b)(1), as amended by St. 2002, c. 313,
    § 2, which includes "any other device, substance or item capable
    of causing death, serious bodily injury or substantial property
    damage," clearly covering devices capable of causing varying
    degrees of harm, not only those that are deadly. Consequently,
    the court's interpretation of G. L. c. 269, § 14(b), supports
    our conclusion that the terms "deadly weapon" and "dangerous
    weapon" have distinct meanings under the common law.
    7
    In two out of the three cases to which the Commonwealth
    appropriately points, the weapon at issue was a firearm, which
    would clearly qualify as both a dangerous and a deadly weapon.
    See Commonwealth v. Maldonado, 
    429 Mass. 502
    , 509 n.6, 510
    (1999); Commonwealth v. Williams, 
    18 Mass. App. Ct. 945
    , 946
    (1984). This leaves only one case identified by the
    Commonwealth in which the use of the term "deadly weapon" is
    inconsistent with our interpretation today, and the nature of
    the weapon used was not at issue in that case. See Commonwealth
    v. Wilson, 
    72 Mass. App. Ct. 416
    , 417-418 (2008) (once referring
    to crime of "assault and battery with a dangerous weapon" as
    "assault and battery with a deadly weapon" but evaluating
    11
    Instead, while the meaning of deadly weapon has not been
    widely explored in our case law, our limited discussion of the
    term suggests that the term has independent legal significance.
    Although decided after the enactment of G. L. c. 140, § 121, we
    concluded in Commonwealth v. Foreman, 
    63 Mass. App. Ct. 801
    , 803
    (2005), that "[t]he definition of violent crime in [G. L.
    c. 140,] § 121[,] uses 'deadly weapon' in the general, common-
    law sense."   We relied, in part, on Commonwealth v. Claudio, 
    418 Mass. 103
    , 108 (1994), which stated, "[a]s a general principle,
    our cases treat those felonies involving the use of a deadly
    weapon, such as a knife or a loaded gun, as inherently dangerous
    to human life."   See Commonwealth v. Turner, 
    59 Mass. App. Ct. 825
    , 828-830 (2003) (knife is commonly thought of as deadly
    weapon).
    In addition, while reviewing other jurisdictions' law on
    the issue of a weapon's apparent ability to inflict harm for the
    purposes of assault by means of a dangerous weapon, the Supreme
    Judicial Court has noted that "some [jurisdictions'] decisions
    are based on the application of statutes relating to assaults
    with 'deadly weapons' which may mean something different from or
    more than the words 'dangerous weapon' used in [G. L. c. 265,
    whether assault and battery can be on Commonwealth rather than
    on person).
    12
    § 15A]" (emphasis supplied).     Commonwealth v. Henson, 
    357 Mass. 686
    , 691 n.1 (1970).
    b.    Legislative purpose.   Next, our interpretation of the
    term deadly weapon is consistent with the Legislature's intent
    in enacting the Massachusetts ACCA.
    In 1998, the Legislature adopted the current version of
    G. L. c. 140, § 121 (and its definition of violent crime)
    together with the armed career criminal sentencing enhancements
    in G. L. c. 269, § 10G, as part of an extensive package of
    legislative revisions by which it substantially altered the gun
    control laws.    See St. 1998, c. 180, §§ 8 (defining terms for
    firearms laws), 71 (adopting armed career criminal provision).
    See also Commonwealth v. Furr, 
    58 Mass. App. Ct. 155
    , 157-158
    (2003).   In enacting G. L. c. 269, § 10G, the Legislature
    intended to increase penalties for individuals convicted of
    serious crimes who subsequently violated firearms laws.      See 
    id. at 158.
    However, it is clear from its restriction of the qualifying
    juvenile offenses that the Legislature intended the law to treat
    prior delinquency adjudications differently from adult
    convictions.    As the Commonwealth acknowledges, the
    Legislature's facially apparent purpose for this distinction is
    to restrict the statute's application to juvenile offenses to
    those that involved a risk to life.     Again, if the Legislature
    13
    had intended to provide for sentencing enhancements when a prior
    juvenile adjudication involved any dangerous weapon, it could
    have done so explicitly.    Therefore, to construe the phrase
    "deadly weapon" broadly so as to encompass all dangerous weapons
    would be at odds with the apparent legislative intent of the
    statute.
    c.    Federal Armed Career Criminal Act.   Moreover, in
    construing the definition of "deadly weapon" as distinct from
    "dangerous weapon," our construction of the statute is
    consistent with the language of the Federal Armed Career
    Criminal Act (Federal ACCA), to which our courts have long
    turned for interpretive guidance.   See generally Commonwealth v.
    Colon, 
    81 Mass. App. Ct. 8
    , 14 (2011).8
    Where the Massachusetts ACCA allows sentence enhancement
    only where acts of juvenile delinquency "involve the use or
    possession of a deadly weapon" (emphasis supplied), G. L.
    c. 140, § 121, the Federal analog allows enhancement only where
    such acts "involv[e] the use or carrying of a firearm, knife, or
    destructive device" (emphasis supplied).    18 U.S.C.
    8
    The language of the Massachusetts ACCA closely tracks that
    of the Federal analog, with only a few differences. For
    example, the Federal ACCA uses the term "violent felony" rather
    than the term violent crime. Compare 18 U.S.C. § 924(e)(1)
    (2006) with G. L. c. 239, § 10G. See Commonwealth v. 
    Colon, supra
    at 12-14.
    14
    § 924(e)(2)(B).9    The Federal ACCA does not allow enhancement for
    all juvenile offenses involving dangerous weapons, but only for
    a subset of weapons that our common law would recognize as
    deadly.    The Massachusetts ACCA achieves the same result by
    explicitly using the term "deadly" instead of listing deadly
    weapons.
    d.    Narrow construction.   Finally, it is well established
    as a general matter that criminal statutes are to be construed
    narrowly, further constraining us to resolve any reasonable
    doubt as to the statute's use of the term deadly weapon in favor
    of the defendant.    See Commonwealth v Kerr, 
    409 Mass. 284
    , 286
    (1991); Commonwealth v. Pagan, 
    445 Mass. 161
    , 167 (2005).
    2.    Meaning of "deadly weapon" under the statute.   Because
    we conclude that "deadly weapon" is a term with independent
    legal significance, we must now determine its meaning as used by
    9
    The Federal statute defines "violent felony" as follows:
    "any crime punishable by imprisonment for a term exceeding
    one year, or any act of juvenile delinquency involving the
    use or carrying of a firearm, knife, or destructive device
    that would be punishable by imprisonment for such term if
    committed by an adult, 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 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).
    15
    the Legislature in its definition of violent crime for the
    purposes of G. L. c. 269, § 10G.   The Commonwealth argues that
    the Legislature intended the armed career criminal statute to
    apply to prior juvenile offenses involving weapons that were
    deadly as used, not only to those involving weapons that are
    inherently deadly.   We disagree and conclude that for the
    purposes of the Massachusetts ACCA, a prior juvenile offense may
    serve as a predicate offense only if the Commonwealth can prove
    that the weapon used or possessed in the commission of the
    offense was inherently deadly.
    a.   Scope of inquiry into prior convictions.   To interpret
    the term "deadly weapon" in the context of this statutory scheme
    to include weapons that are not inherently deadly would be
    contrary to the United States Supreme Court's recent reasoning
    in Johnson v. United States, 
    135 S. Ct. 2551
    (2015), as to the
    appropriate scope of inquiry into prior convictions for the
    purposes of finding a defendant to be an armed career criminal.10
    The Supreme Court has long curtailed extensive fact finding
    by the sentencing court.   It has held that other than in a
    narrow range of cases, the Federal ACCA "mandates a formal
    categorical approach [in determining whether a prior offense
    qualifies as a predicate offense], looking only to the statutory
    10
    
    Johnson, supra
    , involved the residual clause of the
    Federal ACCA, but the Court's reasoning applies here as well.
    See note 11, infra.
    16
    definitions of the prior offenses, and not to the particular
    facts underlying those convictions."   Taylor v. United States,
    
    495 U.S. 575
    , 600-602 (1990), cited favorably by 
    Johnson, supra
    at 2562.   See Shepard v. United States, 
    544 U.S. 13
    , 16 (2005).
    The Court in 
    Johnson, supra
    at 2557, recently concluded
    that the residual clause of the Federal ACCA11 was
    unconstitutionally vague, reasoning, in part, that the language
    of the clause requires sentencing judges to evaluate specific
    facts surrounding the commission of the predicate offense,
    rather than simply consider the elements of the offense.     For us
    to hold that deadly weapons for the purposes of the
    Massachusetts ACCA includes weapons that are deadly only when
    used in a particular manner -- in other words, that are not
    inherently deadly -- would require exactly the type of analysis
    that the Supreme Court rejected in Johnson.   The fact finder
    necessarily would have to evaluate whether, in the commission of
    a prior offense, the defendant used an object in a manner that
    was deadly, rather than simply whether the element of the crime
    11
    "Under the [Federal ACCA], a defendant convicted of being
    a felon in possession of a firearm faces more severe punishment
    if he has three or more previous convictions for a 'violent
    felony,' a term defined to include any felony that 'involves
    conduct that presents a serious potential risk of physical
    injury to another'" (emphasis supplied). 
    Johnson, supra
    at
    2555, quoting from 18 U.S.C. § 924(e)(2)(B). The emphasized
    clause is known as that statute's residual clause. 
    Id. at 2556.
                                                                      17
    charged required proof that the weapon used was deadly.   Cf.
    
    Johnson, supra
    .12
    Therefore, unless the Commonwealth can prove, without
    inquiring into the manner in which the weapon was used, that a
    prior adjudication involved a deadly weapon, the adjudication
    12
    We also have adopted the categorical approach under the
    Massachusetts ACCA for cases in which "the statutory definition
    of the prior offense unambiguously qualifies that offense as a
    predicate conviction." Commonwealth v. 
    Colon, 81 Mass. App. Ct. at 5
    .
    However, we have held that "in the narrow range of cases
    where the statutory or common-law definition of a prior offense
    does not conclusively bring it within the category of 'violent
    crimes,' the familiar sufficiency of the evidence standard
    mandates [a] modified categorical approach," which "permits a
    court to determine which statutory phrase was the basis for the
    conviction by consulting the trial record -- including charging
    documents, plea agreements, transcripts of plea colloquies,
    findings of fact and conclusions of law from a bench trial, and
    jury instructions and verdict forms." 
    Id. at 16
    (quotation
    omitted).
    Accepting the determination that the Legislature intended
    the term "deadly weapon" to have independent legal significance
    under the statute, the elements of assault and battery by means
    of a dangerous weapon do not "unambiguously qualif[y] that
    offense as a predicate conviction," 
    Colon, supra
    , when the
    offense was committed as a juvenile because to qualify, the
    offense must have been committed with a deadly weapon.
    Therefore, under Colon, the fact finder for a charge under the
    Massachusetts ACCA may consult the trial record to determine if
    the dangerous weapon used in the underlying juvenile offense was
    also a deadly weapon. Such an inquiry is still appropriate
    under Johnson, insofar as the question is whether the weapon
    used was inherently deadly. The nature of the weapon itself can
    easily be ascertained from the record without requiring
    additional fact finding about the use of the weapon, which may
    not be apparent from the trial record. We cannot assume that
    because a jury found that the weapon used was dangerous (either
    inherently or as used), they also would have found that the
    defendant used the weapon in a deadly manner.
    18
    cannot qualify as a predicate offense for a conviction under
    G. L. c. 269, § 10G.   To hold otherwise would render the clause
    unconstitutionally vague under Johnson.
    b.     Ordinary usage and common-law meanings.   The
    Commonwealth also argues that because our common-law
    understanding of "dangerous weapon" includes weapons that are
    not inherently dangerous, the same must be true of our
    definition of "deadly weapon."    Such a conclusion does not
    necessarily follow and conflicts with the ordinary meaning of
    the word "deadly."
    The Commonwealth points to, and we have found, no cases in
    which we have applied this construction to the term "deadly
    weapon."   To the contrary, as discussed above, our cases
    discussing deadly weapons have generally involved the use of
    those that are "inherently dangerous to human life."
    Commonwealth v. 
    Claudio, 418 Mass. at 108
    .    See Commonwealth v.
    Drew, 
    4 Mass. 391
    , 396 (1808) (describing deadly weapon as one
    that would "necessarily," was "likely to," or would "probably,"
    kill or do great bodily harm).
    Finally, to include weapons that are deadly only as used
    for the purposes of the Massachusetts ACCA would effectively
    eliminate the discrete distinction between "deadly weapon" and
    "dangerous weapon" and, consequently, equate the two terms.     For
    the reasons already stated, we decline to interpret the statute
    19
    in such a way that fails to give meaning to the Legislature's
    choice of words.13
    3.   A pen is not a deadly weapon for the purposes of the
    Massachusetts ACCA.     Because we hold that, for the purposes of a
    conviction under G. L. c. 269, § 10G, a deadly weapon must be
    one that is inherently deadly, and because a pen is not
    inherently deadly, we need not reach the defendant's alternative
    argument that the manner in which he used the pen in the
    commission of his juvenile offense was not deadly.14
    Conclusion.     We reverse the defendant's conviction under
    G. L. c. 269, § 10G(c), as an armed career criminal based on
    three predicate violent crimes and remand for his resentencing
    as an armed career criminal based on two predicate violent
    crimes under G. L. c. 269, § 10G(b).     The remaining judgments
    are affirmed.
    So ordered.
    13
    If the Legislature intended "deadly" to be synonymous
    with "dangerous," it is free to amend the statute to reflect
    that purpose.
    14
    We do not comment on all of the weapons that would be
    considered inherently deadly except to say that the category
    clearly includes loaded firearms, certain knives, and explosive
    devices. See Commonwealth v. 
    Claudio, 418 Mass. at 108
    .