Commonwealth v. Ashford

Citation159 N.E.3d 125,486 Mass. 450
Decision Date16 December 2020
Docket NumberSJC-12874
Parties COMMONWEALTH v. Lee W. ASHFORD.
CourtUnited States State Supreme Judicial Court of Massachusetts

Timothy St. Lawrence for the defendant.

B. Patrick Nevins, Assistant District Attorney, for the Commonwealth.

Jessica LaClair, for Paris Tillery, amicus curiae, submitted a brief.

Michael Tumposky, Boston, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.1

GAZIANO, J.

When State police troopers attempted to stop the defendant's vehicle for speeding, he fled, first in the vehicle and then on foot. After he was apprehended, police recovered drugs they saw him throw into a Dumpster as well as a loaded gun from a bag on the rear seat of the vehicle. On appeal, the defendant argues that our holding in Commonwealth v. Brown, 479 Mass. 600, 601, 97 N.E.3d 349 (2018) -- that the Commonwealth must prove he knew that the gun was loaded in order to establish a violation of G. L. c. 269, § 10 (n ) -- applies retroactively to his case on collateral review. The defendant also asks us to consider whether assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b ), a crime that can be accomplished either intentionally or recklessly, is categorically a violent crime, as required to serve as a predicate offense under G. L. c. 269, § 10G, the Massachusetts armed career criminal act (ACCA or Massachusetts ACCA).

We conclude that Brown, 479 Mass. at 608, 97 N.E.3d 349, did not announce a new rule, and therefore it applies retroactively to cases on collateral review. We also conclude that in order for a conviction of assault and battery by means of a dangerous weapon to count as a predicate offense for purposes of the ACCA, the Commonwealth must use the modified categorical approach to prove that the defendant was convicted of intentional assault and battery by means of a dangerous weapon. This is so because there is substantial ambiguity as to whether the force clause of the ACCA encompasses reckless conduct; accordingly, under the rule of lenity, the defendant is entitled to the narrower reading of the criminal statute.

Background. 1. Arrest. Shortly after 9 P.M. on February 8, 2010, a State police trooper began following the defendant's vehicle as it pulled out of a gasoline station in Brockton. When the vehicle started traveling at thirty-five miles per hour in a zone with a speed limit of thirty miles per hour, the trooper activated his blue lights and attempted to stop the vehicle. The defendant accelerated, and the trooper pursued. After another police vehicle joined the chase, the defendant parked and fled on foot.

The troopers then continued the pursuit on foot, and eventually caught up to the defendant, who had his hands in his pockets. When they ordered him to take his hands out of his pockets, the defendant "motioned" towards a nearby Dumpster. One of the officers testified that something came out of the defendant's pocket and went into the container. The defendant was arrested, and an officer later recovered three plastic bags from the Dumpster. The bags contained a substance that subsequently was identified as "crack" cocaine. One of the bags held two smaller "twists" that had lesser portions of the drug, and a third contained fourteen "twists."

Another trooper searched the defendant's vehicle and found a plastic bag on the rear seat that contained a pistol, a scale, and a bottle of a cologne named "Very Sexy." A magazine, containing four rounds of ammunition, was fully inserted into the weapon.

On the drive to the State police barracks, a trooper read the defendant his Miranda rights2 and then proceeded to ask him what type of cologne he was wearing. The defendant replied, "Very Sexy." He said that the cologne, drugs, and scale were his, but denied all knowledge of a handgun. He told police that he fled because of the drugs.

2. Prior proceedings. At a jury trial in the Superior Court, the defendant was convicted of unlawful possession of a firearm, in violation of G. L. c. 269, § 10 (a ) ; unlawful possession of a loaded firearm, in violation of G. L. c. 269, § 10 (n ) ; and possession of cocaine with the intent to distribute, in violation of G. L. c. 94C, § 32A (c ). Then, in a jury-waived trial before the same judge, the defendant was convicted of a sentencing enhancement for two prior violent crimes under the ACCA. See G. L. c. 269, § 10G (b ). At the trial on the ACCA charge, the Commonwealth submitted evidence that the defendant previously had been convicted of armed robbery and assault and battery by means of a dangerous weapon. As to this latter conviction, the Commonwealth's evidence consisted of identification testimony by the officer who had booked the defendant, and a certified record of the conviction.

In a consolidated judgment on the convictions of unlawful possession of a firearm and the ACCA enhancement, the judge sentenced the defendant to a term of incarceration of not less than ten years and not more than ten years and one day, the mandatory minimum under the ACCA. That sentence was to run concurrently with a sentence of not less than two years and not more than three years for possessing cocaine in violation of G. L. c. 94C, § 32A (c ). In addition, the defendant was sentenced to two years of probation on the loaded firearm conviction, G. L. c. 269, § 10 (n ), which was to run from and after his ten-year sentence under the ACCA.

The defendant appealed and also filed a motion for a new trial; that motion was denied following an evidentiary hearing. The Appeals Court consolidated the direct appeal and the appeal from the denial of the motion. See Commonwealth v. Ashford, 87 Mass. App. Ct. 1113, 28 N.E.3d 12 (2015). In April 2015, the court affirmed both the judgment and the denial of the motion for a new trial. Id.

In January 2019, the defendant challenged both the loaded firearm conviction and the ACCA enhancement in a motion for required findings of not guilty, pursuant to Mass. R. Crim. P. 25, as amended, 420 Mass. 1502 (1995), or, in the alternative, to vacate an unlawful sentence. The motion was denied, and we granted the defendant's motion for direct appellate review.

Discussion. 1. Possession of a loaded firearm. a. Retroactivity of Brown on collateral review. In Brown, 479 Mass. at 601, 97 N.E.3d 349, we held that in order for a defendant to be convicted of possessing a loaded firearm under G. L. c. 269, § 10 (n ), the Commonwealth had to prove that the defendant knew the weapon was loaded. The defendant contends that he is entitled to the retroactive effect of that decision on collateral review. We agree.

"In general, when we construe a statute, we do not engage in an analysis whether that interpretation is given retroactive or prospective effect; the interpretation we give the statute usually reflects the court's view of its meaning since the statute's enactment." Eaton v. Federal Nat'l Mtge. Ass'n, 462 Mass. 569, 587, 969 N.E.2d 1118 (2012), citing McIntire, petitioner, 458 Mass. 257, 261, 936 N.E.2d 424 (2010), cert. denied, 563 U.S. 1012, 131 S.Ct. 2909, 179 L.Ed.2d 1253 (2011). Where the statutory interpretation at issue is not constitutionally required, however, we retain some discretion to apply the rule only prospectively. See Eaton, supra at 588, 969 N.E.2d 1118, quoting Commonwealth v. Dagley, 442 Mass. 713, 721 n.10, 816 N.E.2d 527 (2004), cert. denied, 544 U.S. 930, 125 S.Ct. 1668, 161 L.Ed.2d 494 (2005). This discretion is guided by consideration of the novelty of the interpretation, whether retroactivity is consistent with the purposes of the rule announced, and whether "hardship or inequity would result from retroactive application" (citation omitted). American Int'l Ins. Co. v. Robert Seuffer GMBH & Co. KG, 468 Mass. 109, 121, 9 N.E.3d 289, cert. denied, 574 U.S. 1061, 135 S.Ct. 871, 190 L.Ed.2d 703 (2014). There must be good reason "to disturb the presumptively retroactive application" of a statutory interpretation. Id. See Eaton, supra (prospective effect was given in those "very limited circumstances" because retroactive application would have clouded title to thousands of property transactions).

We discern no reason here to exercise our discretion and to apply the holding in Brown only prospectively. While Brown decided an open question of law, its interpretation was not entirely novel. See Brown, 479 Mass. at 608, 97 N.E.3d 349. It relied on Commonwealth v. Johnson, 461 Mass. 44, 53, 958 N.E.2d 25 (2011), where we held that "[a]ll of the required elements of unlawful possession of ammunition [including the element of knowledge] were encompassed by the elements of unlawful possession of a loaded firearm." From that conclusion, it is a logical step to the holding in Brown, supra, that the element of knowledge required by the lesser included offense must be shown in order to convict a defendant of the greater offense. Furthermore, any inequity or hardship to the Commonwealth resulting from any lack of warning that it was required to prove knowledge is outweighed by our concern for the inequity and hardship visited upon a defendant, like this one, who might have been convicted and sentenced without the Commonwealth proving an essential element of the crime. Thus, as we have held, the holding in Brown that the Commonwealth must prove a defendant knew that the gun was loaded in order to sustain a conviction under G. L. c. 269, § 10 (n ), applies to cases on collateral review. See Commonwealth v. Silvelo, 486 Mass. 13, 17, 154 N.E.3d 904 (2020), citing Commonwealth v. Paul, 96 Mass. App. Ct. 263, 265-266, 132 N.E.3d 544 (2019).

b. Sufficiency. Having determined that the holding in Brown is applicable here, we next must decide whether there was sufficient evidence for the jury to have found the defendant knew that the gun was loaded. In reviewing the sufficiency of the evidence, we exam...

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