Commonwealth v. Garrett

• Decision Date: 25 November 2015
• Docket Number: SJC–11852.
• Citation: 41 N.E.3d 28,473 Mass. 257
• Parties: COMMONWEALTH v. Raheem B. GARRETT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

473 Mass. 257

41 N.E.3d 28

COMMONWEALTH

v.Raheem B. GARRETT.

SJC–11852.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Sept. 8, 2015.

Decided Nov. 25, 2015.

Michael J. Hickson, Springfield, for the defendant.

John P. Bossé, Special Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

DUFFLY, J.

The defendant was convicted by a Superior Court jury on three indictments charging armed robbery with a firearm while masked, in violation of G.L.c. 265, § 17, the armed robbery

statute.¹ To prove that the defendant was armed with a “firearm,” the Commonwealth relied on evidence that the defendant used a BB gun to perpetrate each of the robberies. The defendant appealed from his convictions, and we allowed the Commonwealth's petition for direct appellate review. The defendant contends that the evidence was insufficient to support his convictions because a BB gun is not a “firearm” within the meaning of the armed robbery statute. The defendant maintains also that the indictments were facially invalid, certain errors in the jury instructions require reversal, and his trial counsel provided constitutionally ineffective assistance in several respects.

Because we conclude that a BB gun does not satisfy the statutory requirement of a “firearm” within the meaning of G.L.c. 265, § 17, the defendant's convictions of armed robbery by means of a firearm cannot stand. Accordingly, those convictions must be vacated, and the matter remanded to the Superior Court for entry of judgments of guilt on the lesser included offense of unarmed robbery.

Background. We recite the facts the jury could have found, reserving certain facts for later discussion of individual issues. In 2011, the defendant was experiencing financial difficulties after he and his then live-in girl friend, Laura Methe, lost their jobs and were unable to find new employment. In an effort to improve their financial circumstances, the defendant and Methe robbed stores in the city of Pittsfield. To commit the robberies, the defendant used a BB gun that he and Methe had purchased for that purpose at a sporting goods store.²

The first robbery was of a pizza shop. The defendant entered the store wearing a homemade black mask, pointed at the assistant store manager what appeared to him to be a gun, and demanded the money from the cash register. Methe, acting as the getaway driver, waited in her white GMC sport utility vehicle (SUV). The two later split the cash. The second robbery was of

a convenience store. Again, the defendant wore a black mask and pointed the BB gun at two clerks, one of whom the defendant ordered to open the safe and hand him the money. Approximately two months later, the defendant and Methe returned to the pizza shop. The same assistant store manager, who was in the store along with another employee, recognized the mask and clothing worn by the robber as those worn during the previous robbery, and the weapon as the same one the prior robber had brandished. The robber demanded that the manager open the cash register and give him the money; the manager recognized the robber's voice as identical to that of the first robber. The manager handed over the money.

After the robber left the store, the manager ran outside and saw a white SUV, either a GMC Jimmy or a Chevrolet Blazer, leaving the parking lot quickly and driving north without any headlights. He telephoned 911 and reported the location of the SUV. A Pittsfield police department sergeant responded to the radio dispatch. With the aid of another officer, he ultimately located and apprehended the defendant and Methe, who was driving, in her SUV.

Discussion. 1. Whether a BB gun is a firearm within the meaning of the armed robbery statute. For the first time on appeal, the defendant claims that a BB gun does not meet the statutory definition of a “firearm,” and therefore that the evidence was insufficient to support his conviction. Although the defendant's claim of insufficiency was not preserved, we nonetheless consider it because “findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice.” Commonwealth v. McGovern, 397 Mass. 863, 867–868, 494 N.E.2d 1298 (1986). See Commonwealth v. Hinds, 437 Mass. 54, 63, 768 N.E.2d 1067 (2002), cert. denied, 537 U.S. 1205, 123 S.Ct. 1280, 154 L.Ed.2d 1049 (2003). Whether, as a matter of statutory interpretation, a BB gun is a “firearm” is a question of law. See, e.g., Commonwealth v. Fenton, 395 Mass. 92, 94–95, 478 N.E.2d 949 (1985), quoting Commonwealth v. Sampson, 383 Mass. 750, 761, 422 N.E.2d 450 (1981).

To determine whether a BB gun is a firearm for the purposes of the armed robbery statute, we analyze the statutory language under the familiar principle of statutory construction that a statute is to be interpreted “according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be

remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” Commonwealth v. Galvin, 388 Mass. 326, 328, 446 N.E.2d 391 (1983), quoting Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513, 333 N.E.2d 450 (1975). Although we begin with the plain language of the statute, Commonwealth v. Cory, 454 Mass. 559, 563, 911 N.E.2d 187 (2009), where the language is not conclusive as to the Legislature's intent, we may seek guidance from the legislative history and the language of related statutes. See Commonwealth v. Wynton W., 459 Mass. 745, 747, 947 N.E.2d 561 (2011) ; Commonwealth v. McLeod, 437 Mass. 286, 290, 771 N.E.2d 142 (2002).

The armed robbery statute, G.L.c. 265, § 17, contains no explicit definition of the term “firearm.” Nor does the statute incorporate explicitly any definition from another statute. The term “firearm,” however, is defined in G.L.c. 140, § 121, a part of the statute that governs licensing and regulation of firearms. See G.L.c. 140, §§ 121 –131Q. Under this provision, a “firearm” is, with certain exclusions for weapons that resemble other objects, defined as a “pistol, revolver or other weapon of any description, loaded or unloaded, from which a shot or bullet can be discharged and of which the length of the barrel or barrels is less than [sixteen] inches or [eighteen] inches in the case of a shotgun as originally manufactured.” See G.L.c. 140, § 121 (gun control act). This definition, which has not been altered significantly since 1934, is the foundation for the Legislature's gun control framework; indeed, the definition was incorporated virtually unchanged from the 1934 version of the statute when the Legislature rewrote the gun control act in 1998. See St. 1934, c. 359, § 1; St. 1998, c. 180 § 8 (“An act relative to gun control in the Commonwealth”).³

The Commonwealth argues that the definition of “firearm” in the gun control act may be viewed as the source of the definition of a “firearm” in the armed robbery statute and that the BB gun at issue here falls within that definition. We do not agree. Nothing within the framework of the gun control act supports an interpretation that the Legislature intended to regulate BB guns in the same manner as it regulates firearms.⁴ To the contrary, such an interpretation is inconsistent with the gun control act, which does

not mention BB guns, and with the Legislature's long-standing separate regulation of BB guns.

The statutory regulation of “air rifle[s] or so-called BB gun[s]” reflects that the Legislature was responding primarily to the risk of misuse of BB guns in the hands of minors.⁵ See G.L.c. 269, § 12A (“Air rifles; sale to minors”); G.L.c. 269, § 12B (“Air rifles; possession by minors; shooting”). These provisions were made part of the General Laws in 1951, by an act “regulating the sale and use of air rifles or so-called BB guns.” See St. 1951, c. 263.⁶ General Laws c. 269, § 12A, regulates the sale of air guns or BB guns to minors.⁷ General Laws c. 269, § 12B, is concerned primarily with the actions of minors in possession of BB guns. It provides:

“No minor under the age of eighteen shall have an air rifle or so-called BB gun in his possession while in any place to which the public has a right of access unless he is accompanied by an adult or unless he is the holder of a sporting or hunting license and has on his person a permit ... granting him the right of such possession. No person shall discharge a BB shot, pellet or other object from an air rifle or so-called BB gun into, from or across any street, alley, public way or railroad or railway right of way, and no minor under the age of eighteen shall discharge a BB shot, pellet or other object from an air rifle or BB gun unless he is accompanied by an adult or is the holder of a sporting or hunting license. Whoever violates this section shall be punished by a fine of not more than one hundred dollars, and the air rifle or BB gun or other weapon shall be confiscated.”

G.L.c.269, § 12B.

Notably, adults who possess BB guns are not subject to the same restrictions as are minors. See Commonwealth v. Fenton, 395 Mass. 92, 95, 478 N.E.2d 949 (1985) (Fenton ); Commonwealth v. Rhodes, 389 Mass. 641, 645, 451 N.E.2d 1151 (1983) (Rhodes ). For persons other than minors, the Legislature prohibits the discharge of BB guns “into, from or across any street, alley, public way or railroad or railway right of way,” G.L.c. 269, § 12B, and prohibits possession of a loaded BB gun in any place where birds or mammals might be found, with certain exceptions for hunting. See G.L.c. 131, § 66. Since G.L.c. 269, §§ 12A and 12B, were enacted in 1951, the Legislature has not amended the statutory scheme to provide explicitly that BB guns should be treated in the same manner as firearms for purposes of the gun...