Com. v. Furr

• Decision Date: 16 May 2003
• Docket Number: No. 01-P-618.,01-P-618.
• Parties: COMMONWEALTH v. Willie FURR.
• Court: Appeals Court of Massachusetts

788 N.E.2d 592

58 Mass. App. Ct. 155

COMMONWEALTH v. Willie FURR.

No. 01-P-618.

Appeals Court of Massachusetts, Suffolk.

Argued December 19, 2002.

Decided May 16, 2003.

Dennis Shedd for the defendant. Kajal K. Chattopadhyay, Assistant District Attorney, for the Commonwealth.

Present: GREENBERG, KASS, & COHEN, JJ.

KASS, J.

Section 10G of G.L. c. 269, inserted by St.1998, c. 180, § 71, imposes enhanced penalties upon any person who violates certain firearm control laws if that person has previously been convicted of a violent crime or of a serious drug offense, both as defined in § 10G(e).¹ The primary question raised by the defendant Willie Furr's appeal is whether his prior adjudication on May 13, 1998, in Juvenile Court, as a youthful offender, on charges of armed carjacking, kidnapping, armed robbery, and assault and battery with a dangerous weapon constitutes a "conviction" that may serve as a basis for imposing on him the enhanced sentences set forth in § 10G. The defendant's position is that only an adult conviction can serve as the predicate offense for purposes of charging a defendant under § 10G. There are subsidiary appellate issues.

On October 6, 2000, the defendant was convicted by a jury in Juvenile Court on youthful offender indictments charging him with: unlawful possession of a firearm (G.L. c. 269, § 10[a]); receiving a firearm with an altered serial number (G.L. c. 269, § 11[c]); attempted intimidation of a witness; and obstruction of justice (both under G.L. c. 274, § 6).

1. Whether a prior adjudication as a youthful offender is a basis for invoking the enhanced penalties provisions of G.L. c. 269, § 10G. Section 10G(a), which is prototypical of the enhanced penalties in the statute, provides:

"Whoever, having been previously convicted of a violent crime or of a serious drug offense, as defined herein, violates the provisions of paragraph (a), (c) or (h) of section 10 shall be punished by imprisonment in the state prison for not less than three years nor more than 15 years" (emphases supplied).

Section 10G(e) provides in pertinent part: "For the purposes of this section, `violent crime' shall have the meaning set forth in section 121 of chapter 140."

Section 121 of G.L. c. 140 was wholly rewritten by the same act of the Legislature that inserted G.L. c. 269, § 10G, into the General Laws. That statute, St.1998, c. 180, bears the caption: "An Act Relative to Gun Control in the Commonwealth." General Laws c. 140, § 121, consists almost entirely of definitions. The definition of "violent crime" is:

"[A]ny 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 of the use, attempted use or threatened use of physical force or a deadly weapon against the person of another ..." (emphasis supplied).

The offenses for which the defendant, at age 14, was adjudicated a youthful offender in 1998 (armed carjacking, kidnapping, and assault and battery with a dangerous weapon) contained the elements that satisfy § 121; i.e., they were punishable by imprisonment for a term exceeding one year and involved the use of physical force and the display of a firearm, a deadly weapon. We think the language we have underscored in the preceding quotations from statutes, and the context in which that language appears, communicate unmistakably a legislative intent that an adjudication of a juvenile as a youthful offender, a form of aggravated juvenile delinquency,² be taken as a "conviction" for purposes of G.L. c. 269, § 10G. Were it otherwise, there would be little point in having § 10G refer to the definition of violent crime that appears in G.L. c. 140 § 121, which expressly includes "an act of juvenile delinquency."

In an analogous context, the question arose in Commonwealth v. Connor C., a juvenile, 432 Mass. 635, 635-637, 738 N.E.2d 731 (2000), whether a prior adjudication of delinquency for possession of a firearm under G.L. c. 269, § 10(a), constituted a "conviction" for purposes of invoking the repeat offender provision that appears in § 10(d). The court concluded that it did. Id. at 646, 738 N.E.2d 731. The same considerations which led the court in Connor C. to its conclusion pertain here, an intent of the Legislature to increase penalties for children who offend firearms laws and who, by parity of reasoning in the case before us, follow up the commission of serious crimes with an offense against the firearms laws. As the court observed in Connor C., supra at 642, 738 N.E.2d 731, "If a prior `adjudication' does not satisfy the `conviction' requirement of G.L. c. 269, § 10 (d), then the Commonwealth could never indict a child for a second or subsequent firearms offense under G.L. c. 269, § 10 (d), because a child is never `convicted' of violating a statute...."

Commonwealth v. Valiton, 432 Mass. 647, 737 N.E.2d 1257 (2000), argued and decided on the same dates as Connor C., strikes a similar chord. In the Valiton case, the defendant, on April 21, 1996, when he was sixteen years old, admitted to facts sufficient to warrant an adjudication of delinquency on a charge of operating a motor vehicle while under the influence of alcohol. A judge of the Juvenile Court suspended Valiton's license for 210 days and ordered him placed on probation. The judge ordered that during his period of probation Valiton was to receive counseling and evaluation at the Berkshire Council on Alcoholism and Addiction. Fourteen months later, on the request of the probation department, the Juvenile Court judge dismissed the case against Valiton. On January 26, 1999, Valiton was again charged with driving under the influence and entered a plea of guilty. The court decided that the component of the probation order to receive counseling was tantamount to Valiton having been assigned to an alcohol education, treatment or rehabilitation program. See Commonwealth v. Valiton, 432 Mass. at 648-650, 737 N.E.2d 1257. He therefore could be charged as a repeat offender under G.L. c. 90, § 24(1)(a)(1). Although the court did not regard the probation order as a "conviction" for purposes of triggering the enhanced penalty provision of G.L. c. 90, § 24(1)(a)(1), id. at 650 n. 4, 737 N.E.2d 1257, the court rejected the defense contention that the provision did not apply to children adjudicated delinquent. Id. at 653, 737 N.E.2d 1257.

In the case now before us, we conclude that the Juvenile Court was right to treat the adjudications of the defendant as a youthful offender as predicate offenses for application of the repeat firearm offense charged under G.L. c. 269, § 10G.

On appeal, the defendant also argues that G.L. c. 269, § 10G, is vague and that application of it may not depend on a crime for which the defendant was punished, i.e., the predicate offense, that occurred before § 10G was enacted in 1998. Prescinding from the question whether the defendant waived those points by not raising them in the Juvenile Court, neither has potency. Our discussion, interpretation, and application of § 10G in this case dispose of the claim that it is unfathomable. As to the retroactivity argument, the defendant is not being punished by § 10G for the prior offense; he is being punished now for the subsequent offense, which provides punishment in part on the basis that it is a repeat offense, namely the enhanced sentence. That is not retroactive application of a statute. Commonwealth v. Bruno, 432 Mass. 489, 497-498, 735 N.E.2d 1222 (2000).

2. Other issues raised by the defendant on appeal. In connection with the other issues that the defendant has raised, we summarize the pertinent facts. Around 7:45 A.M. on November 3, 1999, Boston police officers parked in an unmarked cruiser in front of Dorchester High School heard gunshots coming from the side of the school building. They drove in the direction of the noise and saw two boys running. One boy, the defendant, tossed away a firearm and shouted to the other, "Yo, Six, grab the gun." The defendant stumbled and collapsed; he had been shot. One officer tended to the defendant while the other searched for the second boy, later identified as Rahshjeem Benson. When flushed out by the second officer from behind parked cars, Benson said, "There's a burner on the ground right there." That gun, which the officer picked up, looked like the one he had seen the defendant toss away. There were seven rounds in its magazine, and its serial number had been obscured by abrasion and drilling.

Benson gave a written statement about the incident to the police. The defendant learned about the statement and wrote Benson a threatening letter. That letter was the basis of the charge against the defendant of attempted intimidation of a witness and attempted obstruction of justice.

(a) Admission in evidence of Benson's written statement. Benson's written statement was admitted in evidence. The defense does not dispute the statement's admissibility in connection with the obstruction and intimidation charges but argues that it was unfairly prejudicial as to the firearm possession charge. Jurors cannot, the defense urges, be expected to consider Benson's statement as to intimidation and obstruction while disregarding it as to the possession charges, despite the judge's instruction that they do so. For support, the defendant relies on Bruton v. United States, 391 U.S. 123, 125 n. 2, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), in which jurors were instructed that they might consider a defendant's out-of-court confession — implicating both himself and his jointly-tried codefendant — against the defendant but not against his codefendant. The confessing defendant in the Bruton case did not testify and, therefore, was not available for cross-examination. In such circumstances, the Court decided that although jurors generally are presumed...