Commonwealth v. Colon

• Citation: 81 Mass.App.Ct. 8,958 N.E.2d 56
• Decision Date: 06 December 2011
• Docket Number: No. 10–P–23.,10–P–23.
• Parties: COMMONWEALTH v. Jason COLON.
• Court: Appeals Court of Massachusetts

81 Mass.App.Ct. 8

958 N.E.2d 56

COMMONWEALTH

v.Jason COLON.

No. 10–P–23.

Appeals Court of Massachusetts, Suffolk.

Argued Feb. 8, 2011.Decided Dec. 6, 2011.

Nona E. Walker, Boston, Committee for Public Counsel Services, for the defendant.

John P. Zanini, Assistant District Attorney, for the Commonwealth.

Present: KANTROWITZ, MILLS, & VUONO, JJ.

MILLS, J.

A Superior Court jury convicted the defendant of assault and battery by means of a dangerous weapon, G.L. c. 265, § 15B( b ); carrying a firearm without a license, G.L. c. 269, § 10( a ); and possession of ammunition without a firearm identification card (FID card), G.L. c. 269, § 10( h ). In a second trial, another Superior Court jury convicted him on one count of being an armed career criminal based on three predicate offenses, G.L. c. 269, § 10G( c ), as a sentence enhancement on his conviction under G.L. c. 269, § 10( h ). The defendant appeals. We find no error in his convictions from the first trial.

As to the second trial, the defendant's appeal raises the issue whether a certified record of conviction constitutes sufficient evidence that the defendant was convicted of a predicate “violent crime,” see G.L. c. 140, § 121, as appearing in St.1998, c. 180, § 8, for purposes of the armed career criminal sentencing enhancements, G.L. c. 269, § 10G( a )-( c ). We hold that a certified record of conviction is sufficient when the predicate offense is assault and battery on a police officer (ABPO), G.L. c. 265, § 13D (two of the predicate offenses here), but that it is not when the predicate offense is assault and battery, G.L. c. 265, § 13A( a ), which was one of the predicate offenses here. Accordingly, 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, G.L. c. 269, § 10G( b ).

1. Background. We recite the trial evidence related to the defendant's claims of error on appeal.

a. The first trial. In April, 2006, the defendant was tried on three indictments charging assault and battery by means of a dangerous weapon, carrying a firearm without a license, and possession of ammunition without an FID card. The events giving rise to this prosecution occurred early on June 7, 2004. The defendant and two companions were in a black vehicle with tinted windows. The defendant was in the passenger seat. The defendant fired numerous shots at another car with two occupants.

State troopers responded. They identified the vehicle in which the defendant was riding; stopped it; ordered its occupants, including the defendant, out; and arrested them. At first finding no weapons, the troopers walked along the road on which the vehicle had been stopped and found a firearm and a holster. The two occupants of the other car arrived for a showup and positively identified the defendant and his companions.

The defendant gave a statement to the State police. In this statement, he asserted that he and his companions had been shot at and that the driver of the car returned fire in self-defense. He confessed to throwing the firearm out the car window when he saw the troopers. Subsequently, he also confessed to being the one who fired at the other car.

Witnesses testified to the above facts at the first trial. The defendant neither testified nor presented evidence. His attorney, in his opening statement, put forth a self-defense theory. On cross-examination defense counsel questioned the driver of the other car, Hugo Paez, about his hobby of working with cars and whether he raced cars. Paez replied, “No, I don't race. I have a perfect driving record.” The following day, defense counsel proffered a copy of Paez's record of driving violations and requested that it be admitted for purposes of impeaching him by contradiction. The judge excluded the driving record as collateral to the issue of self-defense and insufficiently probative of Paez's credibility or bias.

After hearing standard instructions, the jury convicted the defendant of all three charges. The defendant noticed his appeal from these convictions in May, 2006.

b. The second trial. In April, 2007, the defendant was tried before a different jury, see G.L. c. 278, § 11A, on the count of the indictment for carrying a firearm without a license (G.L. c. 265, § 10[ a ] ) that sought an enhanced sentence under G.L. c. 269, § 10G( c ), for being an armed career criminal who had committed three prior violent crimes. Several probation department officials testified regarding the defendant's criminal history, including a 2004 conviction of assault and battery and 2001 and 2002 convictions of ABPO. Certified records of these three convictions were admitted as the Commonwealth's proof of predicate offenses. The certified records identified the convictions only by the terms “assault and battery on a police officer” and “assault and battery,” and no evidence was presented as to whether these convictions resulted from harmful, reckless, or offensive batteries, see part 3, infra, or as to the circumstances of the three predicate convictions.

The defendant requested that the judge strike his 2004 assault and battery conviction from evidence. He argued that, because the conviction resulted from a guilty plea to a complaint which originally charged him with armed robbery but was subsequently amended to charge assault and battery and attempted larceny ¹ separately, he was improperly convicted. The judge rejected the request, and the conviction was admitted.

The defendant moved for a required finding of not guilty, arguing that the Commonwealth's failure to introduce any evidence of the circumstances underlying his three convictions meant that there was insufficient evidence to show that he had been convicted of three “violent crimes.” The judge denied the motion, reasoning that assault and battery always has, as an element, at least minimal physical force, bringing it within the relevant statutory definition of “violent crime.” The judge also announced his intention to instruct according to this understanding, and the defendant objected.

The judge instructed, inter alia, that “[a]s a matter of law, the definition of violent crime includes the crimes of assault and battery on a police officer and assault and battery....” The jury found the defendant guilty on the armed career criminal count of the indictment. The defendant noticed his appeal from this conviction on April 27, 2007.

c. Appeal. In this consolidated appeal, the defendant argues (1) insufficient evidence of, and erroneous jury instructions about, statutorily required predicate offenses in the second trial; (2) erroneous admission of one of the defendant's convictions as evidence at the second trial; and (3) erroneous exclusion of evidence in the first trial.

2. The armed career criminal act statutory scheme. Our decision requires some explication of the statutory scheme at issue, so we detour here for a detailed discussion.

a. The Massachusetts and Federal armed career criminal acts. In order to sustain a conviction under the Massachusetts armed career criminal act (Massachusetts ACCA), G.L. c. 269, § 10G( a )-( c ), the Commonwealth must prove that the defendant has been previously convicted of at least one “violent crime.” ² For purposes of the Massachusetts ACCA, a “violent crime” is defined as

“any crime punishable by imprisonment for a term exceeding one year ... 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.”G.L. c. 140, § 121, as appearing in St.1998, c. 180, § 8. See G.L. c. 269, § 10G( e ). The Massachusetts ACCA therefore has three components: (1) the “physical force” or “force” clause; (2) the enumerated crimes provisions; and (3) the residual clause.

The Massachusetts ACCA's language largely replicates the Federal armed career criminal act (Federal ACCA), 18 U.S.C. § 924(e) (2006). Commonwealth v. Ware, 75 Mass.App.Ct. 220, 223, 913 N.E.2d 869 (2009). The Federal ACCA mandates a sentencing enhancement for those previously convicted of three “violent felon[ies]” or serious drug offenses. 18 U.S.C. § 924(e)(1) (2006). The Federal ACCA further defines a “violent felony” in 18 U.S.C. § 924( e ) (2)(B) (2006) as

“any crime punishable by imprisonment for a term exceeding one year ... 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....”

The term “crime punishable by imprisonment for a term exceeding one year” is further defined to include certain State law misdemeanors. See 18 U.S.C. § 921(a)(20)(B) (2006); Logan v. United States, 552 U.S. 23, 27, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007).

The Federal ACCA definition of “violent felony” ³ is almost identical to the definition of “violent crime” that the Massachusetts Legislature adopted in G.L. c. 140, § 121, and incorporated into the Massachusetts ACCA by G.L. c. 269, § 10G( e ). The two statutes differ only in four ways. First, the Massachusetts ACCA uses the term “violent crime” while the Federal ACCA uses the term “violent felony”; this apparent distinction ultimately collapses because the Federal ACCA encompasses both felonies and misdemeanors as predicate offenses.⁴ See 18 U.S.C. § 921(a)(20)(B) (2006); Logan v. United States, supra. Second, the Massachusetts ACCA adds use of a deadly weapon to its force clause. Third, the Massachusetts ACCA adds kidnapping to its list of enumerated crimes. Fourth, the Massachusetts ACCA residual...