Commonwealth v. Guardado
| Docket Number | SJC-13315 |
| Decision Date | 26 October 2023 |
| Parties | COMMONWEALTH v. CARLOS GUARDADO. |
| Court | United States State Supreme Judicial Court of Massachusetts |
1
COMMONWEALTH
v.
CARLOS GUARDADO.
No. SJC-13315
Supreme Judicial Court of Massachusetts, Middlesex
October 26, 2023
Heard: September 11, 2023
Indictments found and returned in the Superior Court Department on June 26, 2019.
A pretrial motion to suppress evidence was heard by C. William Barrett, J., and the cases were tried before Paul D. Wilson, J. After review by this court, 491 Mass. 666 (2023), a motion for reconsideration was allowed in part.
Elaine Fronhofer for the defendant.
Jamie Michael Charles, Assistant District Attorney, for the Commonwealth.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
GAZIANO, J.
This is a companion case to Commonwealth v. Guardado, 491 Mass. 666 (2023) (Guardado I), concerning the
proper remedy for the constitutional violations described therein. A Superior Court jury convicted the defendant of, among other things, unlawfully carrying a firearm, unlawfully carrying a loaded firearm, and unlawfully carrying ammunition. See id. at 667. On appeal, this court determined that, in light of the United States Supreme Court's decision in New York State Rifle & Pistol Ass'n v. Bruen, 142 S.Ct. 2111, 2122 (2022), which was issued after the defendant's convictions, absence of licensure is an essential element of those crimes. See Guardado I, supra at 690, 692. Accordingly, we held that the trial judge erred when he failed to instruct the jury that, to convict the defendant of those crimes, they would have to find that the defendant lacked a firearms license. See id. at 691. We vacated the defendant's convictions and ordered that the Superior Court judge enter judgments of not guilty on the indictments, precluding the Commonwealth from retrying the defendant on those charges. See id. at 694.
The Commonwealth has moved for reconsideration, arguing that because the constitutional rule established in Bruen, 142 S.Ct. at 2122, did not exist at the time the defendant was convicted, the Commonwealth should have an opportunity to retry the defendant. We conclude that the Commonwealth is correct. Ordinarily, the prohibition against double jeopardy bars retrial if, as the Commonwealth concedes, there was insufficient
evidence at trial to establish an essential element of the crime. However, the Commonwealth had no reason to introduce evidence of the defendant's lack of licensure under then-prevailing law. Because the Commonwealth is not being given a second bite at the proverbial apple to supply evidence that it was required to muster in the earlier trial, double jeopardy does not bar retrial.
1. Background.
a. Trial.
In June 2019, a grand jury issued indictments charging the defendant with one count of illegal possession of a firearm, G. L. c. 269, § 10 (a); two counts of illegal possession of a large capacity feeding device, G. L. c. 269, § 10 (m); one count of illegal possession of ammunition, G. L. c. 269, § 10 (h); and one count of illegal possession of a loaded firearm, G. L. c. 269, § 10 (n). The facts underlying those charges are recited in Guardado I, 491 Mass. at 668-673.
When the judge instructed the jury at trial, he did not include absence of a firearms license among the elements that the Commonwealth would have to prove for the jury to convict the defendant. The defendant did not object to this omission from the jury instructions.
In June 2021, the defendant was convicted on all counts except for one count of illegal possession of a large capacity
feeding device. The defendant filed a timely notice of appeal, and we transferred the case to this court on our own motion.
b. Appeal.
The defendant argued on appeal that the judge erred by failing to instruct the jury that absence of licensure is an essential element of the crimes of unlawful possession of a firearm and unlawful possession of ammunition. The defendant relied on the Supreme Court's holding in Bruen, 142 S.Ct. at 2122, that the Second Amendment to the United States
Constitution protects an individual's right to carry a firearm outside the home. The defendant contended that, as a result of Bruen, his convictions of unlawful possession of a firearm, unlawful possession of ammunition, and unlawful possession of a loaded firearm should be reversed.
We reviewed the defendant's argument under a standard that ordinarily is reserved for issues preserved at trial. We reasoned that the defendant "did not have an adequate opportunity at the time of his trial" to object to the jury instructions, because the Court's decision in Bruen had not issued until after the defendant had been convicted. Guardado I, 491 Mass. at 686. Under the "clairvoyance exception," which allows a defendant to raise an unpreserved issue on appeal "when the constitutional theory on which the defendant has relied was not sufficiently developed at the time of trial," Commonwealth v. Rembiszewski,
391 Mass. 123, 126 (1984), the defendant was entitled to review of the issue, Guardado I, supra.
We concluded, in light of Bruen, that absence of licensure is an essential element of the crimes of unlawful possession of a firearm and unlawful possession of ammunition. See Guardado I, 491 Mass. at 690. Accordingly, we held that the judge erred by omitting absence of licensure from his instructions on those crimes to the jury. See id. at 691. We vacated the defendant's convictions on the indictments charging unlawful possession of a firearm, unlawful possession of ammunition, and unlawful possession of a loaded firearm,[1] and we remanded the matter to the Superior Court for entry of judgments of not guilty on those indictments. See id. at 694.
c. Motion to reconsider.
In May 2023, the Commonwealth moved for reconsideration of the remedy this court issued in Guardado I, 491 Mass. at 694. We granted the Commonwealth's motion for reconsideration in part and asked the parties to file briefs on the following issue: "[W]hether the court should continue to hold that the remedy in [Guardado I] for an erroneous jury instruction relieving the Commonwealth of the burden of proving absence of firearm[s] licensure is vacatur of
the conviction and remand for entry of a judgment of acquittal. . . . Or, should the court consider the jury instruction, which conformed to controlling precedent at the time, to be trial error that results in vacatur of the conviction and remand for a new trial."[2]
2. Discussion.
Based on their differing applications of the double jeopardy principle, the parties disagree as to what the appropriate remedy should be for the erroneous jury instructions. The Commonwealth argues that we erred by ordering the Superior Court to enter judgments of not guilty on the defendant's convictions. According to the Commonwealth, because the evidence it presented at trial was insufficient only because of a postconviction change in the law, double jeopardy does not bar retrial. The defendant contends that, because the Commonwealth's evidence at trial was not sufficient according to
the state of the law at the time of his appeal, double jeopardy requires the entry of judgments of acquittal.
"At its core, the prohibition against double jeopardy, which flows from the Fifth Amendment to the United States Constitution, as well as the statutory and common law of Massachusetts, provides that 'a person cannot twice be put in jeopardy for the same offense.'" Commonwealth v. Sanchez, 485 Mass. 491, 506 (2020), quoting Marshall v. Commonwealth, 463 Mass. 529, 534 (2012). This prohibition protects defendants against the possibility that "prosecutors could treat trials as dress rehearsals until they secure the convictions they seek." Currier v. Virginia, 138 S.Ct. 2144, 2149 (2018). It also ensures that defendants will not receive "multiple punishments" for the same offense. United States v. Ursery, 518 U.S. 267, 273 (1996). To prevent such injustices, double jeopardy protections forbid the Commonwealth from prosecuting the defendant for the same offense after a final verdict has been entered. See Commonwealth v. Brown, 470 Mass. 595, 603 (2015), quoting Marshall, supra.
The prohibition against double jeopardy generally precludes retrial if the Commonwealth presented insufficient evidence at the original trial to support the defendant's conviction. See Commonwealth v. Bolling, 462 Mass. 440, 453 (2012). See also United States v. Wacker, 72 F.3d 1453, 1465 (10th Cir. 1995),
cert. denied, 523 U.S. 1035 (1998), citing Burks v. United States, 437 U.S. 1, 10 (1978) ("by reversing a conviction for insufficient evidence, the reviewing court is actually making a determination that the trial court erred in failing to direct a verdict of acquittal on the evidence; accordingly, the defendant should be treated as though he or she were acquitted"). Otherwise, the Commonwealth would be able to take advantage of a trial error by presenting a stronger case the second time around, thereby "getting a second bite at the proverbial apple" (quotation and citation omitted). Commonwealth v. Claudio, 484 Mass. 203, 208 (2020). If, given the evidence presented at trial, no "trier of fact could have found the essential elements of the crime beyond a reasonable doubt," the Commonwealth does not get to try again (citation omitted). Commonwealth v. Brown, 479 Mass. 600, 608, 611 (2018).
The double jeopardy principle, however, "does not prevent the government from retrying a defendant who succeeds in getting his conviction set aside . . . because of some error in the proceedings leading to conviction." United States v. Acosta-Sierra, 690 F.3d 1111, 1123 (9th Cir. 2012), cert. denied, 568 U.S. 1183 (2013), quoting Lockhart v. Nelson, 488 U.S. 33, 38-39 (1988). See Commonwealth v. DiBenedetto, 414 Mass. 37, 45 (1992), S.C., 427 Mass. 414 (1998), 458 Mass. 657 (2011), and 475 Mass. 429 (2016) (double jeopardy did not bar retrial where
conviction was...
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