Commonwealth v. Morrison

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21-P-699 Appeals Court
COMMONWEALTH vs. SCOTT MORRISON.
No. 21-P-699.
Norfolk. December 5, 2022. – September 11, 2023.
Present: Sacks, Singh, & Brennan, JJ.
Homicide. Kidnapping. Conspiracy. Identification. Evidence,
Photograph, Authentication, Identification. Practice,
Criminal, Required finding, Identification of defendant in
courtroom, Instructions to jury. Statute, Construction.
Words, "Thereby."
Indictments found and returned in the Superior Court
Department on July 31, 2014, and April 29, 2016.
The cases were tried before Robert C. Cosgrove, J.
Timothy J. Bradl for the defendant.
Pamela Alford, Assistant District Attorney, for the
Commonwealth.
BRENNAN, J. A Superior Court jury convicted the defendant
of involuntary manslaughter, G. L. c. 265, § 13; aggravated
kidnapping, G. L. c. 265, § 26; and conspiracy to commit
2
kidnapping, G. L. c. 274, § 7.1 On appeal, the defendant argues
that the trial judge erred by denying his motions for a required
finding of not guilty and instructing the jury improperly based
on a misinterpretation of the aggravated kidnapping statute,
admitting a photograph showing duct tape found near the victim's
remains, permitting a witness's in-court identification of the
defendant, and instructing the jury improperly on eyewitness
identification. We affirm.
1. Background. We summarize the facts the jury could have
found, reserving certain details for later discussion. On
January 1, 2014, the victim, James Robertson, was taken from his
home by two men purporting to be "constables." They promised
his mother that they would return him home after his "surprise
drug test." She never saw him again. Almost two years later,
hunters stumbled upon the victim's partial remains in a wooded
area in Upton. Police investigators searched the area and
located more of the victim's remains, his clothing, and personal
effects. They followed a trail of evidence that ultimately led
to James Feeney, Alfred Ricci, and the defendant.2
1 The defendant consented to proceeding on the conspiracy
indictment with the underlying indictments.
2 Feeney was convicted of murder in the first degree,
aggravated kidnapping, and conspiracy. His appeal is currently
pending before the Supreme Judicial Court. Ricci testified for
the prosecution as a cooperating witness. He subsequently
3
a. The parties. The victim was thirty-eight years old and
living in Avon with his mother, father, and brother at the time
he was kidnapped and murdered. He was on probation after a
brief period of incarceration in the fall of 2013. The victim
had been dating Andrea Morse for about one year, and stayed with
her in the fall of 2013 after he was released from prison.
Morse also had a long-term relationship with Feeney, who
supplied her with Percocet pills that she frequently shared with
the victim. Ricci was friendly with Feeney, obtained Percocet
from him, and saw him often in 2013. The defendant worked as
Feeney's mechanic and bought Percocet from him. The defendant
met Ricci through Feeney. Feeney used a wheelchair, and he
could not walk more than a "few feet" with a cane or walker. He
"did not like [the victim] at all," and became angry when Morse
called or sent text messages to the victim. Feeney told Morse
she had to choose between him and the victim. She "chose" the
victim.
b. The plan. Feeney was "distraught" when Morse chose the
victim over him. In the months leading up to the murder, Feeney
repeatedly indicated to the defendant and Ricci that he wanted
to "question" the victim about Morse. Feeney devised a plan for
the defendant and Ricci to dress as constables or probation
pleaded guilty to aggravated kidnapping and conspiracy in
connection with a plea and cooperation agreement.
4
officers and "grab" the victim. Feeney told them to use a
folder with a picture of the victim and the victim's "police
record" so they would "look like officers." He indicated that
he would provide them with a gun, badge, and handcuffs.3 The
defendant was to pick up Ricci, who did not drive, and then get
the victim and bring him to Feeney at Ricci's house. In
anticipation of Feeney's "face-to-face" questioning of the
victim, the defendant and Ricci bolted a metal chair to the
floor of Ricci's garage.
c. The kidnapping and killing. On January 1, 2014, the
defendant, Feeney, and Ricci exchanged numerous cell phone calls
and text messages (texts).4 After one such call from Feeney, the
defendant and Ricci drove to the victim's home. The defendant
parked his silver Toyota Camry across the front of the driveway
as the victim's brother was arriving with his girlfriend. The
defendant told the brother that they were there to bring the
victim in for a random drug test and showed him a paper with a
"Commonwealth stamp." The victim spoke briefly with the
3 Feeney had access to police equipment through Michael
Schoener, a Dedham police officer and another Percocet customer.
See Commonwealth v. Schoener, 491 Mass. 706, 706-707 (2023) (in
separate trial, Schoener was "convicted of being an accessory
before the fact to kidnapping").
4 Analysis of the defendant's cell phone showed thirty-eight
calls or texts with Feeney and nine with Ricci. Feeney and
Ricci exchanged twenty-two calls or texts.
5
defendant, who had a badge, was carrying a pair of handcuffs,
and was armed with a black gun in a holster. Looking through
her kitchen bay window, the victim's mother could see the
defendant standing in her driveway talking to Ricci. She
followed the victim outside and spoke to the defendant, who
reassured her that he and Ricci would bring the victim home
after the drug test. The defendant then put the victim in the
rear of the car with Ricci.
After Ricci handcuffed the victim, the defendant drove to
Ricci's house in Canton where Feeney was waiting. The defendant
gave Feeney a duffel bag from the front seat of the Toyota that
contained, among other things, a baton. Feeney directed the
defendant and Ricci to bring the victim to the garage, where
they seated the victim in the metal chair that they had bolted
into the floor one week earlier. Feeney entered the garage
wearing all black clothing and a black ski mask, and carrying
the bag that he got from the defendant. The baton was on top of
the bag. Feeney shackled the victim to the chair and told the
defendant and Ricci to leave; he also instructed them that no
one was allowed in the garage.
The defendant and Ricci drove to a nearby hardware store to
purchase duct tape for a car repair. After working on Ricci's
mother's car for approximately twenty minutes, the defendant
left to fix a different car. Feeney also left Ricci's house
6
shortly thereafter. At approximately 12:25 A.M. the next
morning, Ricci saw the defendant and Feeney back in his garage
standing over the victim's dead body. Feeney directed the
defendant and Ricci to put the body in the trunk of his car.
All three men drove to a nearby wooded area, where the defendant
and Ricci left the victim's body in the underbrush.
d. The investigation. On January 2, 2014, the victim's
mother reported that her son was missing. She told police about
the men who had taken the victim for a "drug test" and provided
a description of them. Over the next several weeks, police
investigators interviewed the defendant, Feeney, and Ricci,
focusing on their activities on the day the victim disappeared.
On February 27, 2014, police searched Feeney's apartment and
seized two handguns; photographs of the victim; and a duffel bag
containing, among other things, a black police baton, handcuffs,
leg irons, and zip ties. Blood found on the baton and other
items was later matched to the victim.
e. Identification of the defendant. In January 2014, the
police showed the victim's mother two photographic arrays in an
effort to identify the men last seen with her son. Although
"one person . . . seemed to have some of the facial
characteristics" of one of the perpetrators, she could not
positively identify anyone from the first array. In the second
array she identified one person as having the "driver's mouth."
7
The defendant's photograph was not included in either array.
Sometime thereafter, the victim's mother and the girlfriend of
the victim's brother helped create composite pictures of the two
suspects. According to the victim's mother, neither of them was
"happy" with the final composites because they did not resemble
the suspects. On July 29, 2014, the victim's mother
participated in a videotaped lineup procedure at the Norwood
police station. During this procedure, she positively
identified the defendant as one of the constables who took her
son away on January 1, 2014.5
2. Discussion. a. Kidnapping statute. The defendant
raises interrelated claims regarding the sufficiency of the
evidence and the judge's instructions to the jury on the charge
of aggravated kidnapping. Under the relevant portion of the
kidnapping statute, "[w]hoever commits any offense described in
this section while armed with a dangerous weapon and inflicts
serious bodily injury thereby upon another person or who
sexually assaults such person shall be punished" (emphasis
added). G. L. c. 265, § 26, third par., inserted by St. 1998,
c. 180, § 63. The defendant asserts that "the word 'thereby'
must be construed to relate back and mean that the dangerous
weapon used for kidnapping must have caused the injury." He
5 The girlfriend of the victim's brother was unable to
identify anyone in the photographic arrays or the lineup.
8
posits that the trial judge's failure to interpret and apply the
statute accordingly, both when ruling on the defendant's motion
for a required finding of not guilty and when instructing the
jury, was prejudicial error. We disagree. Aggravated
kidnapping, on the theory before this jury, requires that a
person commit a kidnapping while armed with a dangerous weapon
and that the commission of the armed kidnapping cause serious
bodily injury to the victim, regardless of the instrumentality
of that injury.
"In interpreting the meaning of a statute, we look first to
the plain statutory language." Commonwealth v. Perez Narvaez,
490 Mass. 807, 809 (2022), quoting Cavanagh v. Cavanagh, 490
Mass. 398, 405 (2022). "Ordinarily, where the language of a
statute is plain and unambiguous, it is conclusive as to
legislative intent." Malloch v. Hanover, 472 Mass. 783, 788
(2015), quoting Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444
(2008). We do not determine the plain meaning of a statute in
isolation; rather, we consider its specific language in the
context of the surrounding text and apply "standard rules of
statutory construction and grammar." Rowley v. Massachusetts
Elec. Co., 438 Mass. 798, 802 (2003). "All the words of a
statute are to be given their ordinary and usual meaning, and
each clause or phrase is to be construed with reference to every
other clause or phrase without giving undue emphasis to any one
9
group of words, so that, if reasonably possible, all parts shall
be construed as consistent with each other so as to form a
harmonious enactment effectual to accomplish its manifest
purpose" (citation omitted). Worcester v. College Hill Props.,
LLC, 465 Mass. 134, 139 (2013).
"Thereby" is an adverb, defined as "[b]y that means" or "in
that way." Black's Law Dictionary 1781 (11th ed. 2019).
Because it is an adverb, "thereby" must describe a verb, an
adjective, or another adverb. See M. Shertzer, Elements of
Grammar 35 (1986). In the operative sentence of the kidnapping
statute, the word "thereby" modifies the verb "inflicts" and in
context creates the adverbial phrase, "inflicts serious bodily
injury thereby," which in turn modifies the entire verb clause,
"commits any offense described in this section while armed with
a dangerous weapon," at the beginning of the sentence. See
Commonwealth v. Rodriguez, 83 Mass. App. Ct. 267, 270-271 (2013)
(interpreting aggravated kidnapping as "commit[ting]" kidnapping
while armed, with additional requirement of either serious
bodily injury or sexual assault).6 Because "weapon" is a noun,
6 In Rodriguez, 83 Mass. App. Ct. at 272-273, we vacated the
defendant's conviction of aggravated kidnapping, applying the
rule of lenity where the judge's instruction omitted the
requirement that the defendant be armed under the sexual assault
prong of the offense and the statute reasonably could be
interpreted as requiring that the defendant be armed under
either theory. Here, because the meaning and application of
"thereby" in the statute cannot plausibly be found to be
10
by simple rules of grammar, it cannot be modified by the adverb
"thereby" or by the adverbial phrase "inflicts serious bodily
injury thereby." See Elements of Grammar, supra (nouns are
limited, identified, or described by adjectives). We thus
discern no error in the trial judge's reasoning that "the more
natural reading is that the thereby is [a] reference to the
entire crime [of kidnapping] and not specifically to the
firearm." To the contrary, we conclude that it is the logical
and grammatically correct interpretation of the statute.
We are not persuaded by the defendant's contention that
"thereby" is the equivalent of "by means of" as that phrase is
used in the crime of assault and battery by means of a dangerous
weapon. Beyond the grammatical misassignment of linking
"thereby" to the weapon as discussed above, this argument
ignores the use of the phrase "while armed with a dangerous
weapon" in the aggravated kidnapping provision. The Legislature
consistently has defined "armed" as possessing but not
necessarily using a dangerous weapon. See, e.g., Commonwealth
v. Nickologines, 322 Mass. 274, 277 (1948) (armed robbery);
Commonwealth v. Werner, 73 Mass. App. Ct. 97, 101-103 (2008)
(armed assault in dwelling house). Moreover, "when the
Legislature has intended to distinguish crimes that are
ambiguous, the rule of lenity is not implicated. See
Commonwealth v. Carrion, 431 Mass. 44, 45-46 (2000).
11
committed 'by means of a dangerous weapon' from other crimes
that are committed simply by 'being armed with a dangerous
weapon,' whether or not the weapon is actually used, it has
. . . done so." Commonwealth v. Dunn, 43 Mass. App. Ct. 58, 61-
62 (1997).
Given our interpretation of the statute, we need not linger
long on the defendant's particular arguments regarding the
deficiencies in its application at trial. The defendant moved
for a required finding of not guilty on the ground that there
was no evidence that the gun used in the kidnapping inflicted
serious bodily injury on the victim and objected to the judge's
failure to instruct that the same dangerous weapon used to
kidnap must cause the victim serious bodily injury. Because we
discern no such requirement in the plain language of the
statute, and instead conclude that a kidnapping is aggravated by
the arming of the defendant and the infliction of bodily injury,
these interrelated arguments necessarily fail. There was no
error in the judge's denial of the defendant's motion for a
required finding on the charge of aggravated kidnapping, see
Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979), and the
jury here were properly instructed on the crime of aggravated
kidnapping.7
7 As a corollary to his argument regarding the meaning of
"thereby" in the statute, the defendant asserts that the judge
12
b. Admission of photograph depicting duct tape. The
defendant contends that the judge erred in admitting a
photograph of and testimony about a piece of duct tape because
the Commonwealth failed to lay a proper foundation for the
evidence. The defendant argues that the photograph should not
have been admitted because it was not properly authenticated by
a witness who had personal knowledge. We disagree. The
photograph was authenticated by State police Trooper Bruce
Tobin, who was present in the woods when multiple items,
including the duct tape, were recovered. He testified, over the
defendant's objection, that he remembered seeing a piece of tape
and that the photograph of the duct tape was a fair and accurate
representation of how he saw the tape in the woods. His
testimony was sufficient to authenticate the photograph. See
Commonwealth v. Cintron, 435 Mass. 509, 521 (2001) ("The only
foundation required for the testimony of lay witnesses is the
ability to perceive, recall, and recount information within the
witness's personal knowledge"); Commonwealth v. Figueroa, 56
effectively "imposed strict liability" on him as a joint
venturer because there was no evidence of his coventurer's
"surprise intent to inflict serious bodily injury on [the
victim]." This argument misapprehends the requisite shared
intent for aggravated kidnapping. See Commonwealth v. Johnson,
92 Mass. App. Ct. 538, 544 (2017) (no intent to injure is
required for assault and battery by means of dangerous weapon
causing serious bodily injury); Commonwealth v. Bibby, 54 Mass.
App. Ct. 158, 160-161 (2002) (no specific intent required for
first clause of kidnapping statute).
13
Mass. App. Ct. 641, 646 (2002) ("testimony that the scene [the
photograph] show[s] is a fair and accurate representation of
something the witness actually saw" sufficient to authenticate
photograph). Additional testimony elicited by defense counsel
from Trooper Tobin that conflicted with his initial statements
went to the weight, and not the admissibility, of the evidence.
See Commonwealth v. Meola, 95 Mass. App. Ct. 303, 313 (2019),
quoting United States v. Vayner, 769 F.3d 125 (2d Cir. 2014)
("Thus, after the proponent of the evidence has adduced
sufficient evidence to support a finding that the proffered
evidence is what it is claimed to be, the opposing party remains
free to challenge the reliability of the evidence, to minimize
its importance, or to argue alternative interpretations of its
meaning, but these and similar other challenges go to the weight
of the evidence -- not to its admissibility"). A judge ruling
on a preliminary question of admissibility, like a judge ruling
on a motion to suppress, is "not required to discard testimony
that appears to contain internal inconsistencies, but may credit
parts of a witness's testimony and disregard other potentially
contradictory portions" (quotation and citation omitted).
Commonwealth v. Guardado, 491 Mass. 666, 676 (2023).
c. In-court identification. The defendant claims that the
judge erred in allowing the victim's mother (witness) to make an
in-court identification of the defendant because the witness
14
failed to first make an unequivocal out-of-court identification.
See Commonwealth v. Collins, 470 Mass. 255, 259-267 (2014).8
Because the defendant moved in limine to exclude the
identification testimony and objected at trial, we review for
prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591
(2005). In reviewing a judge's determination that a witness
made an unequivocal pretrial identification, "we must confine
ourselves to determining whether the judge abused his
discretion, . . . meaning that he must have 'made a clear error
of judgment in weighing the factors relevant to the decision
. . . such that the decision falls outside the range of
reasonable alternatives.'" Commonwealth v. Collins, 92 Mass.
App. Ct. 395, 397 (2017), quoting L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014). We discern no such error.
"A witness makes an 'unequivocal positive identification'
where he or she successfully identifies the defendant as the
perpetrator, such that the statement of identification is clear
and free from doubt." Commonwealth v. Dew, 478 Mass. 304, 315
(2017), quoting Collins, 470 Mass. at 262. In Collins, supra at
266, the Supreme Judicial Court announced a prospective rule
requiring "good reason" to permit an in-court identification by
8 The defendant conceded at oral argument that Commonwealth
v. Crayton, 470 Mass. 228 (2014), was inapplicable to the extent
that the witness here made a previous out-of-court
identification.
15
an eyewitness who participated in a pretrial identification
procedure but did not make an "unequivocal positive
identification" of the defendant. See Mass. G. Evid.
§ 1112(c)(1)(A), (2)(A) (2023). However, in Collins, supra at
259-261, the eyewitness plainly failed to make an "unequivocal"
pretrial identification where she initially said "no" to each of
the eight photographs she viewed in an array and then testified
that two of the photographs "looked like" the defendant.
Here, by contrast, the witness participated in a lineup
that was video recorded, where she positively identified the
defendant as one of the two constables who took the victim from
her home for a purported drug test. Whereas the witness had
earlier indicated, when viewing the two photographic arrays that
did not include the defendant,9 that "nobody seemed right" and
she "couldn't identify anybody for certain," during the lineup
procedure she asserted that she was "certain it was [the
defendant]."10 Moreover, at trial, she testified that she was
9 Although we disagree with the defendant's characterization
of these as instances of "misidentifications," we note that the
judge, relying on language in the eighth numbered paragraph of
the model jury instruction on eyewitness identification, see
Model Jury Instructions on Eyewitness Identification, 473 Mass.
1051 (2015), ruled that "so long as a positive identification is
made, previous failures to identify or previous
misidentifications go to the weight of identification and not
the admissibility."
10The Commonwealth entered the video recording of the
lineup in evidence. During the procedure, the witness appeared
16
"[o]ne hundred percent" certain it was the defendant in the in-
person lineup.11 On these facts, the judge reasonably could have
found that the witness's pretrial identification qualified as an
unequivocal positive out-of-court identification, thereby taking
it outside the scope of Collins. We therefore conclude that the
judge did not abuse his discretion by admitting the witness's
in-court identification of the defendant, including her level of
certainty. See Commonwealth v. German, 483 Mass. 553, 565
(2019) ("It is well established that an eyewitness may be
permitted to testify as to his or her level of certainty, and
the weight of this evidence is for the jury"); Dew, 478 Mass. at
314-315. Cf. Collins, 470 Mass. at 265-266 (witness's in-court
identification of defendant constituted "unnecessarily
suggestive in-court showup" where out-of-court identification
was "less than an unequivocal positive identification").
d. Jury instruction. The defendant asserts that the judge
erred in failing to give his requested jury instruction on
identification. Because the defendant objected to the judge's
eyewitness identification instruction, we review for prejudicial
error. See Commonwealth v. Herndon, 475 Mass. 324, 328 (2016).
to have a physical reaction to the defendant when he entered the
room.
11The judge initially reserved his ruling on admitting
testimony about the level of certainty the witness expressed,
and later allowed the full identification in evidence.
17
The defendant requested that the judge begin the jury
instructions with language from the model jury instruction on
eyewitness identification that said, "the Commonwealth has the
burden of proving beyond a reasonable doubt that the defendant
is the person who committed or participated in the alleged
crimes." Model Jury Instructions on Eyewitness Identification,
473 Mass. 1051. The judge indicated that the requested language
would be provided in the paragraph immediately preceding
identification and that he was "not inclined to change the way I
have it." The judge ultimately instructed the jury: "As to any
charge, ladies and gentlemen, you must be satisfied beyond a
reasonable doubt that the crime was committed and that the
defendant committed it. As to the second requirement, that the
defendant committed the crime, it's not necessary that a witness
observe the crime or is certain of the identity of the
defendant, but whatever means are employed, . . . the
Commonwealth must satisfy you, the jury, beyond a reasonable
doubt that the defendant committed the crime." He then
instructed the jurors on identification. Where, as here, the
content mirrored the model jury instruction and the defendant's
requested language, we discern no abuse of discretion in the
judge's instruction. See Commonwealth v. Cruz, 445 Mass. 589,
597 (2005), quoting Commonwealth v. Daye, 411 Mass. 719, 739
(1992) ("The judge is not required to grant a particular
18
instruction so long as the charge, as a whole, adequately covers
the issue").
Judgments affirmed.
SACKS, J. (dissenting in part). I respectfully disagree
with the majority's conclusion that the aggravated kidnapping
statute unambiguously establishes being armed with a dangerous
weapon and inflicting serious bodily injury as two entirely
independent, unconnected aggravating circumstances.1 Ante
at . The statute is ambiguous, and the defendant's
interpretation, under which the serious bodily injury must be
inflicted by the dangerous weapon, is just as plausible as the
majority's. "The rule of lenity requires us to give a defendant
'the benefit of any rational doubt' where we conclude that a
'statute is ambiguous or [we] are unable to ascertain the intent
of the Legislature.'" Commonwealth v. Rossetti, 489 Mass. 589,
599 (2022), quoting Commonwealth v. Montarvo, 486 Mass. 535, 542
(2020). See Commonwealth v. Ashford, 486 Mass. 450, 467 (2020)
(rule of lenity applies where statute could "plausibly be found
to be ambiguous" or where there is "any reasonable doubt" as to
its meaning [quotations and citations omitted]); Commonwealth v.
Lopez, 91 Mass. App. Ct. 485, 489 (2017) (where both defendant's
and Commonwealth's interpretations are plausible, "we are
required to accept the defendant's interpretation under the rule
of lenity"). Therefore, I would vacate the conviction of
1 I agree with the majority's resolution of the other issues
on appeal.
2
aggravated kidnapping and remand for resentencing on the lesser
included offense of kidnapping.
The statute provides, as relevant here, that "[w]hoever
commits any offense described in this section while armed with a
dangerous weapon and inflicts serious bodily injury thereby upon
another person or who sexually assaults such person shall be
punished" (emphasis added). G. L. c. 265, § 26, third par. For
ease of discussion, we may safely substitute "kidnapping" for
"any offense described in this section," and "SBI" for "serious
bodily injury," so that a short form of the provision would be:
"whoever commits kidnapping while armed with a dangerous weapon
and inflicts SBI thereby upon another person . . . shall be
punished." As the majority recognizes, interpreting this
provision requires us to decide the significance of the word
"thereby."
I agree with the majority that "thereby" is an adverb; that
it means "by that means" or "in that way"; and that it modifies
the verb phrase, "inflicts [SBI]." Ante at . So I agree
with the majority that the statute may be read to provide:
"whoever commits kidnapping while armed with a dangerous weapon
and inflicts SBI by that means [or in that way] upon another
person . . . shall be punished." The question thus becomes,
what is the "that means" or "that way" to which this provision
3
refers? Clearly, it must be some "means" or "way" already
mentioned earlier in the sentence.
Turning first to "that means," to what word or phrase
earlier in the sentence does it refer? The word "means," as
used here, is a noun.2 Which noun earlier in the sentence is
meant? It could be either "kidnapping" (i.e., "any offense
described in this section") or "dangerous weapon."
If we substitute "kidnapping" for "that means," the
provision would read, "whoever commits kidnapping while armed
with a dangerous weapon and inflicts SBI by kidnapping upon
another person . . . shall be punished." This is essentially
the majority's interpretation. It does not require that the SBI
be inflicted by the dangerous weapon, and it is plausible.3
But if instead we substitute "dangerous weapon" for "that
means," the provision would read, "whoever commits kidnapping
2 "Means" is the plural of "mean," Webster's Third New
International Dictionary 1399 (2002), and "mean" is defined in
pertinent part as "something (as a step, stage, connection)
intervening, intermediate, or intermediary" or "something by the
use or help of which a desired end is attained or made more
likely," id. at 1398.
3 The meaning would be no different if instead of
"kidnapping" we substituted the full phrase, "kidnapping while
armed with a dangerous weapon," so that the whole provision
would read, "whoever commits kidnapping while armed with a
dangerous weapon and inflicts SBI by kidnapping while armed with
a dangerous weapon upon another person . . . shall be punished."
This language, too, would not require that the SBI have been
inflicted by the dangerous weapon.
4
while armed with a dangerous weapon and inflicts SBI by
dangerous weapon upon another person . . . shall be punished."
This is the defendant's interpretation. It does require that
the SBI be inflicted by the dangerous weapon, and it, too, is
plausible. (Indeed, the trial judge said it was "by no means a
frivolous argument.")
Turning to the alternative meaning of "thereby," which is
"in that way," the result is no different. To what word or
phrase earlier in the sentence does "that way" refer? It refers
to a verb phrase, but which? It could refer either to "commits
kidnapping" or "armed with a dangerous weapon."
If we substitute "commits kidnapping" for "in that way,"
the provision would read, "whoever commits kidnapping while
armed with a dangerous weapon and inflicts SBI commit[ting]4
kidnapping upon another person . . . shall be punished." This,
once again, is essentially the majority's interpretation; it
does not require that the SBI be inflicted by the dangerous
weapon, and it is plausible.5
4 Changing "commits" to "committing" merely makes the
majority's interpretation of "thereby" more intelligible, after
we explicate that interpretation by the process of substituting
phrases of equivalent meaning. The same is true of omitting the
word "in" when substituting a verb phase from earlier in the
sentence for the phrase "in that way."
5 Much as described in note 3, supra, the meaning would be
no different if instead of "kidnapping" we substituted the full
phrase, "kidnapping while armed with a dangerous weapon." Doing
5
But if instead we substitute "armed with a dangerous
weapon" for "in that way," the provision would read, "whoever
commits kidnapping while armed with a dangerous weapon and
inflicts SBI armed with a dangerous weapon upon another person
. . . shall be punished." This, once again, is the defendant's
interpretation; it does require that the SBI be inflicted by the
dangerous weapon, and it, too, is plausible.
The majority offers no way to choose among these plausible
interpretations. I address the majority's points in order.
1. Grammar. The majority's discussion of the rules of
grammar, while interesting, misses a key point. In asserting
that the word "thereby" must describe or modify a verb (or an
adjective or another adverb) and therefore cannot modify
"weapon," ante at , the majority glosses over the fact that
the word "thereby," to be given any meaning, must also refer to
some other word or phrase. I agree with the majority that
"thereby" modifies "inflicts," but that does not tell us what
"thereby" means or refers to. "Thereby," as used in any
particular sentence, gains meaning only when we know where in
the sentence the "there" is. More specifically, once we agree
so would make the whole provision read, "whoever commits
kidnapping while armed with a dangerous weapon and inflicts SBI
committing kidnapping while armed with a dangerous weapon upon
another person . . . shall be punished." This language, too,
would not require that the SBI have been inflicted by the
dangerous weapon.
6
(as the majority does) that "thereby" means "by that means" or
"in that way," we need to know which means or way is referred
to. The majority's grammatical analysis does not answer that
question.
2. The Rodriguez decision. If the majority's citation of
Commonwealth v. Rodriguez, 83 Mass. App. Ct. 267 (2013), is
meant to suggest that that decision addressed the particular
interpretive issue before us, the suggestion is incorrect. See
ante at . Simply put, Rodriguez, supra at 269-272, addressed
only whether, under the sexual assault branch of aggravated
kidnapping -- set forth in the same sentence of the statute as
is at issue here -- the defendant must be armed with a dangerous
weapon. The defendant in Rodriguez argued that proof he was so
armed was required, but that the jury had not been so
instructed, whereas the Commonwealth argued that no such proof
was required. See id. at 269-270.
We agreed in Rodriguez that the defendant's interpretation
was "reasonabl[e]" and "plausible," id. at 270, 272, that the
statute was ambiguous on this point, see id. at 272, and that
the rule of lenity applied, meaning that the defendant's
interpretation prevailed and his conviction must be set aside,
see id. at 272-273. But nowhere does the Rodriguez decision
discuss, let alone imply a view on, whether the SBI branch of
aggravated kidnapping requires that the SBI be inflicted with a
7
dangerous weapon. Rodriguez is most notable here for its
recognition that this sentence of the statute contains an
ambiguity, and that both the defendant's interpretation and the
Commonwealth's were "somewhat grammatically awkward." Id. at
271 n.5. See id. at 272 n.9. Perhaps we should not be
surprised that the sentence contains more than one ambiguity.
3. Legislative usage. That the statute uses the phrase,
"while armed with a dangerous weapon," whereas the Legislature
typically says "by means of a dangerous weapon" when it intends
to require use of the weapon, ante at , does not answer the
key question: to what does "thereby" refer? To illustrate,
suppose that the statute, instead of saying (in the short form
adopted above), "whoever commits kidnapping while armed with a
dangerous weapon and inflicts SBI thereby upon another person
. . . shall be punished," said, "whoever commits kidnapping by
means of a dangerous weapon and inflicts SBI thereby upon
another person . . . shall be punished." This would certainly
tell us that the kidnapping must be accomplished by using the
dangerous weapon -- a requirement absent from the statute as
enacted. But it would not tell us whether the SBI must also be
inflicted by using the dangerous weapon. This is because the
sentence would still contain the word "thereby" -- which, in
identifying the means by which (or the way in which) the SBI was
inflicted, still could plausibly refer back either to the
8
kidnapping (or the kidnapping as accomplished using the
dangerous weapon), or alternatively to the weapon itself.
To be sure, if the Legislature had intended the defendant's
interpretation, it could have said so more clearly, by avoiding
the word "thereby." For example, it could have provided that
"whoever commits kidnapping while armed with a dangerous weapon
and inflicts SBI by means of such weapon upon another person
. . . shall be punished." But the converse is equally true. If
the Legislature had intended the Commonwealth's interpretation,
it could have said so more clearly, by providing that "whoever
commits kidnapping while armed with a dangerous weapon and
inflicts SBI while armed with such weapon upon another person
. . . shall be punished." The Legislature did neither of these
things, instead leaving us to guess regarding which phrase
"thereby" refers to.6
4. Legislative history. Finally, the majority cites
nothing in the legislative history of the aggravated kidnapping
statute that makes the defendant's interpretation any less
plausible than the Commonwealth's. As the majority notes, the
language at issue here was added, as a new third paragraph of
6 Similarly, had the Legislature intended the defendant's
interpretation, it could have said, "inflicts serious bodily
injury therewith." But it is equally true that if the
Legislature had intended the Commonwealth's interpretation, it
could have said, "inflicts serious bodily injury in the course
thereof." Unfortunately, the Legislature did neither.
9
G. L. c. 265, § 26, by St. 1998, c. 180, § 63. That 1998
statute was entitled "An Act relative to gun control in the
Commonwealth." Among other things, it amended numerous statutes
establishing criminal offenses, by adding language providing
that committing such an offense "while armed with a firearm,
shotgun, rifle, machine gun or assault weapon" was an
aggravating factor, permitting and in many instances mandating a
longer term of incarceration.7 Those provisions did not, at
least by their terms, require that the aggravated offenses be
committed "by means of" the specified weapons, but only that
they be committed "while armed with" one of those weapons. From
this, one might conclude that a main purpose of the 1998 statute
was to deter the commission of crimes "while armed with" one of
the specified weapons, and that the aggravated kidnapping
language at issue here should be interpreted in the same manner.
The problem with such an approach is that, although the
1998 statute did insert language in the kidnapping statute to
accomplish that purpose, that language is separate from the
7 Sections of St. 1998, c. 180, that inserted language like
that quoted in text include § 50 (amending G. L. c. 265, § 17,
concerning armed robbery); §§ 51-53 (amending G. L. c. 265,
§ 18, concerning assault with intent to rob); § 55 (amending
G. L. c. 265, § 18A, concerning assault in dwelling house); § 58
(amending G. L. c. 265, § 21A, concerning assault with intent to
steal motor vehicle); § 59 (amending G. L. c. 265, § 22 [b],
concerning rape); and § 61 (amending G. L. c. 265, § 24,
concerning assault with intent to rape). See St. 1998, c. 180,
§§ 62, 64-67.
10
language at issue here. More specifically, St. 1998, c. 180,
§ 63, inserted both a new second paragraph and a new third
paragraph in G. L. c. 265, § 26. It was the new second
paragraph that established kidnapping "while armed" or "while
being armed" with specified weapons as aggravated forms of
kidnapping, warranting greater punishment.8 This was the
language that furthered the purpose of deterring kidnapping
"while armed" or "while being armed" with the specified weapons.
The language at issue in this case, however, is in the new
and distinct third paragraph of the kidnapping statute. It
addresses kidnapping while armed with any "dangerous weapon,"
rather than being limited, as is the second paragraph, to
kidnapping while armed with a firearm, rifle, shotgun, machine
gun, or assault weapon. Thus, that one purpose of the 1998
statute was to deter the commission of crimes "while armed with"
8 The new second paragraph provides: "Whoever commits any
offense described in this section while armed with a firearm,
rifle, shotgun, machine gun or assault weapon shall be punished
by imprisonment in the state prison for not less than ten years
or in the house of correction for not more than two and one-half
years. The provisions of the preceding sentence shall not apply
to the parent of a child under 18 years of age who takes custody
of such child. Whoever commits such offense described in this
section while being armed with a firearm, rifle, shotgun,
machine gun or assault weapon with the intent to extort money or
other valuable thing thereby shall be punished by imprisonment
in the state prison for life or for any term of years but not
less than 20 years." G. L. c. 265, § 26, second par., inserted
by St. 1998, c. 180, § 63. The parties here do not argue that
this provision, including its use of the word "thereby," has any
bearing on the interpretive issue before us.
11
one of the specified weapons sheds no light on the proper
interpretation of the language now before us.
There is, however, one snippet of legislative history that
may be useful. The language that became § 63 of the 1998
statute was first added to the relevant bill by a floor
amendment in the House of Representatives. See 1998 House J.
1973-1974 (June 23, 1998). In the floor amendment, the
pertinent language read as follows: "Whoever commits such
offense with any dangerous weapon and inflicts serious physical
injury upon another person or who sexually abuses said person
shall be punished by imprisonment in the state prison for not
less than [twenty-five] years." Id. at 1974. This version of
the bill suggested, if anything, that the kidnapping must be
committed "with" (not merely "while armed with") a dangerous
weapon. More to the point, it lacked the word "thereby," and
thus it suggested no necessary connection between the weapon and
the infliction of injury.
But later, in a conference committee appointed to reconcile
the competing House and Senate versions of the bill, the
language was amended, including by adding the word "thereby,"
which may be read to suggest just such a connection between the
weapon and the injury.9 As so amended, it was enacted into law,
9 The language appeared in section 63 of the conference
report, 1998 Senate Doc. No. 2276, which was enacted by both
12
to read (as it does today): "[w]hoever commits any offense
described in this section while armed with a dangerous weapon
and inflicts serious bodily injury thereby upon another person
or who sexually assaults such person shall be punished by
imprisonment in the state prison for not less than [twenty-five]
years."
I do not assert that this snippet of legislative history
makes the defendant's interpretation more plausible than the
Commonwealth's. But certainly his interpretation is no less
plausible. The statute presents "an ambiguity that must be
resolved in favor of the defendant under the rule of lenity."
Rossetti, 489 Mass. at 599.
Accordingly, because the jury were not asked to determine
whether the gun possessed by the defendant during the kidnapping
caused the victim any serious bodily injury, and because there
was no evidence that the gun caused the victim any such injury,10
houses and signed by the Acting Governor. See 1998 House J.
2077, 2080 (July 20, 1998); 1998 Senate J. 2146 (July 20, 1998);
St. 1998, c. 180.
10The victim's remains showed no evidence of a gunshot
wound, and in opposing the defendant's motion for a required
finding of not guilty, the Commonwealth cited no evidence that
the victim was injured with the gun. As for the police baton,
assuming arguendo that there was sufficient evidence for the
jury to find (1) that the baton was used to inflict SBI and (2)
that the defendant was liable on a joint venture theory for that
use of the baton, the problem remains that the jury were not
instructed on the need to find that the baton (or any dangerous
weapon) caused the SBI.
13
I would vacate the judgment on the aggravated kidnapping offense
and remand for entry of judgment on the lesser included offense
of kidnapping, see G. L. c. 265, § 26, first par., and for
sentencing on that offense.11 See Commonwealth v. Lavin, 101
Mass. App. Ct. 278, 301 n.28 (2022), S.C., 491 Mass. 809 (2023).
11The evidence would also have supported a conviction of
another form of aggravated kidnapping. As mentioned, G. L.
c. 265, § 26, second par., provides: "Whoever commits any
offense described in this section while armed with a firearm,
rifle, shotgun, machine gun or assault weapon shall be punished
by imprisonment in the state prison for not less than ten years
or in the house of correction for not more than two and one-half
years." It was undisputed that the defendant was armed with a
firearm during the kidnapping, and the defendant conceded that
this charge could be submitted to the jury. However, the jury
were not asked to and did not find that fact.