Commonwealth v. Carter, No. 02-P-1391 (MA 5/21/2004)

• Decision Date: 21 May 2004
• Docket Number: No. 02-P-1391.,02-P-1391.
• Citation: 61 Mass. App. Ct. 205
• Parties: COMMONWEALTH v. GREGORY W. CARTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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COMMONWEALTH v. GREGORY W. CARTER.

No. 02-P-1391.

Appeals Court of Massachusetts.

January 12, 2004.

May 21, 2004.

Present: Laurence, Brown, & Berry, JJ.

Infernal Machine.

Indictment found and returned in the Superior Court Department on March 3, 2000.

The case was tried before Nonnie S. Burnes, J.

Jane Larmon White, Committee for Public Counsel Services, for the defendant.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

LAURENCE, J.

In an era plagued by daily homicidal bomb attacks somewhere in the world, it provides perspective, if not comfort, to note that our concerns about such criminal activity are not unprecedented. The Massachusetts Legislature felt compelled to enact a statute proscribing the possession of "any bomb or other high explosive," see G. L. c. 148, § 35, as early as 1847 when it gave cities and towns the power to regulate substances used as explosives, St. 1847, c. 51; and in 1930 saw the need for a separate statute criminalizing the possession of any "infernal machine . . . includ[ing] any device for endangering life or doing unusual damage to property, or both, by explosion" (now G. L. c. 266, § 102A, as amended by St. 1970, § 422). The defendant, Gregory W. Carter, here challenges his May, 2001, conviction for violating § 102A, contending that the Commonwealth's evidence fell short of proving that what he possessed constituted an infernal machine.

Carter's conviction resulted from the following circumstances. Dissatisfied with various aspects of a residential property he had purchased from one Michael Neilson, Carter issued several threats against Neilson for failure to redress the problems Carter perceived. The threats included attacking Neilson with a substance Carter boasted he possessed, identified as "C-4 plastic explosive," and blowing up Neilson's house. After Carter physically confronted Neilson in the latter's home with (according to Neilson) a long knife and renewed threats of similar nature, the local police intervened at Neilson's behest. They arrested Carter and searched his property (pursuant to a warrant) for the C-4 explosive he claimed to possess. In the course of the search, police officers found marijuana plants growing outside of Carter's house. In one drawer of a two-drawer metal cabinet outside the master bedroom, they discovered a "brick-shaped" block of C-4 explosive in a nylon bag, as well as a small plastic container holding ten percussion blasting caps. The container holding the blasting caps was located in a different part of the drawer, separated from the block by tools and other items.¹

Carter was indicted for armed home invasion, armed assault with intent to murder, unlawful cultivation of marijuana, and (most pertinent to this appeal) possession of an infernal machine. A Superior Court jury acquitted him of armed home invasion and armed assault with intent to murder, but convicted him of unlawful cultivation of marijuana and possession of an infernal machine. Carter's main argument on appeal² is that the trial judge erred in denying his motion for a required finding of not guilty on the infernal machine possession charge because the Commonwealth's proof failed to establish that he possessed an infernal machine within the meaning of G. L. c. 266, § 102A.

Carter contends that the Commonwealth needed to prove that he was in possession of a fully-assembled machine or device rather than merely the separate component parts (C-4 explosive and blasting caps) found in his drawer which had not yet been sufficiently integrated to constitute an infernal machine that could destroy or injure by fire or explosion. The Commonwealth counters that the statute contains no requirement that the forbidden device be fully assembled and ready to detonate, and it need merely be potentially destructive whenever combined, relying on the language in the next-to-last sentence, "whether or not contrived to ignite or explode automatically."

General Laws, c. 266, § 102A (set out in its entirety in the margin³), did not generate any legislative history clarifying its intent and scope. It remains sui generis⁴ and has been discussed little in appellate opinions.⁵ Contrary to both parties' shared underlying assumption that the statutory language is clear, exactly what is to be understood by the quaintly archaic term "infernal machine" is not comprehensible to a person of ordinary intelligence simply by reading the statute. Although it appears in dictionaries, the term is not one encountered in everyday usage.⁶ It is undefined in § 102A, which merely purports to provide examples of the kind of "machine" or "device" proscribed by reference to the injurious consequences of its use rather than by a description or explanation of its essential characteristics.⁷ Its synonyms in § 102A — "instrument, contrivance or device" — are similarly undefined, and their dictionary definitions provide relatively little assistance, because each word is circularly described in terms or as a species of the others.⁸

We are thus dealing with a statute that must be deemed ambiguous, not merely because of the difficulties presented in penetrating the meaning of its unusual, seemingly anachronistic central term, "infernal machine," but also because that critical term can plausibly be understood — and has been by the parties — in at least two different senses. See AT&T v. Automatic Sprinkler Appeals Bd., 52 Mass. App. Ct. 11, 14 (2001). See also New England Med. Center Hosp., Inc. v. Commissioner of Rev., 381 Mass. 748, 750 (1980) (a statute is unambiguous if virtually all reasonable people would fairly attribute only one meaning to it and would consider alternative meanings strained, far-fetched, unusual, or unlikely). We are persuaded on the basis of several factors that Carter's position — the infernal machine condemned by § 102A must be an assembled object, rather than separate detached parts — must prevail.

Although we are hindered in applying the usual tests for resolving ambiguity,⁹ the language used in § 102A does afford insights that point to resolution of its appropriate meaning. First, the very singularity of each term used — "an infernal machine" or "a similar instrument, contrivance or device" — connotes something that constitutes an individual object, whether inherently unitary or rendered so by the integration of several objects. None of the terms logically gives rise to an image of discrete, disconnected components that are scattered or physically separated from each other.

Moreover, the principal dictionary definitions of the most significant term, "machine," lend support to the conception of an "infernal machine" as consisting of one, not several, things. See Webster's Third New Intl. Dictionary 1353 (3d ed. 1993) ("machine . . . (1): an assemblage of parts . . . that transmit forces, motion, and energy one to another in some predetermined manner and to some desired end") (emphasis added); The American Heritage Dictionary of the English Language 1047 (4th ed. 2000) ("machine . . . 1a. A device consisting of fixed and moving parts that modifies mechanical energy and transmits it in a more useful form") (emphasis added). See also The Columbia Encyclopedia 1706 (6th ed. 2000) ("machine . . . arrangement of moving and stationary mechanical parts used to perform some useful work") (emphasis added).¹⁰ device similar to any of the devices described in the preceding clauses; . . . and (C) any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B) and from which a destructive device may be readily assembled" (emphasis added). See, e.g., United States v. Lussier, 128 F.3d 1312, 1315 (9th Cir. 1997), cert. denied, 523 U.S. 1131 (1998) ("[o]n its face, subsection [C] [of 18 U.S.C. § 921(a)(4)] applies only to materials that have not yet been assembled into a whole: it speaks of `parts' designed or intended `for use in converting' something into a bomb or similar device. In contrast, subsection [A] applies only to an assembled device, i.e., parts that have been converted into a bomb or similar device"). Section 921 was enacted in 1968 (Pub. L. 90-351, Title IV, § 902, 82 Stat. 226) and thus existed when the Legislature added § 102A½ to G. L. c. 266, punishing "hoax devices" appearing to be infernal machines, without elaborating but merely reiterating the descriptions contained in § 102A.

More significantly in favor of Carter's position is the well-established rule of lenity consisting of interrelated principles mandating that "criminal statutes are to be construed narrowly," Commonwealth v. Kerr, 409 Mass. 284, 286 (1991), and "strictly against the Commonwealth," Commonwealth v. Wotan, 422 Mass. 740, 742 (1996), quoting from Commonwealth v. Gagnon, 387 Mass. 567, 569, S.C., 387 Mass. 768 (1982), cert. denied, 461 U.S. 921, and cert. denied, 464 U.S. 815 (1983); and that "[w]e must resolve in favor of criminal defendants any reasonable doubt as to [a] statute's meaning," Commonwealth v. Connolly, 394 Mass. 169, 174 (1985), to the end that "[i]f the statutory language `can plausibly be found to be ambiguous,' . . . the defendant [must] be given `the benefit of the ambiguity,'" Commonwealth v. Carrion, 431 Mass. 44, 45-46 (2000), quoting from Commonwealth v. Roucoulet, 413 Mass. 647, 652 (1992). In short, we must resolve any doubt that lingers as to the reach of an ambiguous criminal statute in favor of a defendant, that is, against finding a criminal violation. See Commonwealth v. Gagnon, supra at 569. See also Rewis v. United States, 401 U.S. 808, 812 (1971).

As applied to the facts of this case, the rule of lenity, combined with the singular number of the key terms in the statute, the most common concept of a "machine" as something whole made up of constituent parts, and the Legislature's failure to adopt the specificity of the cognate Federal statute, persuades us that what...