Commonwealth v. Rezendes

• Decision Date: 17 September 2015
• Docket Number: No. 14–P–753.,14–P–753.
• Citation: 88 Mass.App.Ct. 369,37 N.E.3d 672
• Parties: COMMONWEALTH v. Dominic REZENDES.
• Court: Appeals Court of Massachusetts

88 Mass.App.Ct. 369

37 N.E.3d 672

COMMONWEALTH

v.Dominic REZENDES.

No. 14–P–753.

Appeals Court of Massachusetts, Plymouth.

Argued May 11, 2015.

Decided Sept. 17, 2015.

James A. Reidy for the defendant.

Jessica Heaton, Assistant District Attorney, for the Commonwealth.

Present: CYPHER, MEADE, & MASSING, JJ.

Opinion

CYPHER

, J.

This case requires us to consider the meaning of “violent crime” as used in the Massachusetts Armed Career Criminal Act (Massachusetts ACCA or statute), G.L. c. 269, § 10G

, inserted by St. 1998, c. 180, § 71. Specifically, we must interpret the term “deadly weapon,” as used in the definition of violent crime in G.L. c. 140, § 121, as amended by St. 1998, c. 180, § 8. The defendant, Dominic Rezendes, appeals from a conviction under § 10G(c ) of the Massachusetts ACCA, which was based, in part, on a juvenile adjudication for assault and battery by means of a dangerous weapon (a pen).

We first conclude that the term “deadly weapon” in this context is distinct from the term “dangerous weapon” as applied in our common law. We further hold that for the purposes of conviction under G.L. c. 269, § 10G

, a deadly weapon is a weapon that is inherently deadly, and therefore conclude that a pen is not a deadly weapon under this statute. Accordingly, under these circumstances, the defendant's juvenile adjudication for assault and battery by means of a dangerous weapon could not have formed the basis for a conviction under the Massachusetts ACCA. We reverse the defendant's conviction under G.L. c. 269, § 10G(c ), and remand for resentencing under G.L. c. 269, § 10G(b ).

Background. In July, 2013, a jury convicted the defendant on two indictments charging assault and battery by means of a dangerous weapon and three indictments involving weapons charges: unlawful possession of a firearm, in violation of G.L. c. 269, § 10(a )

; unlawful discharge of a firearm within 500 feet of a building, in violation of G.L. c. 269, § 12E ; and unlawful possession of a loaded firearm, in violation of G.L. c. 269, § 10(n ).¹ The indictment charging unlawful possession of a firearm carried an additional count of being an armed career criminal² under the Massachusetts ACCA, based on two prior convictions and an adjudication of delinquency for assault and battery. Following a jury-waived trial on this count of the indictment, the judge concluded that the defendant had committed three predicate offenses

and found him guilty of being an armed career criminal.³

The three predicate offenses included an adjudication as delinquent for assault and battery by means of a dangerous weapon (a pen) from when the defendant was sixteen years old, as well as guilty pleas as an adult to charges of assault and battery and assault and battery by means of a dangerous weapon. The juvenile adjudication involved an altercation at a juvenile detention facility in which the defendant was seen “gouging at the victim” with a pen.

Discussion. The Massachusetts ACCA provides for enhanced penalties for the unlawful possession of a firearm by individuals who have been previously convicted of violent crimes, as defined in G.L. c. 140, § 121

.⁴ For the purposes of the statute, the Legislature defined violent crime as follows:

“any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or possession of a deadly weapon that would be punishable by imprisonment for such term if committed by an adult, 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” (emphasis supplied).

G.L. c. 140, § 121

.

The defendant argues that because his prior juvenile adjudication for assault and battery by means of a dangerous weapon did

not involve a deadly weapon, it was not a violent crime under the Massachusetts ACCA, and, therefore, could not qualify as a predicate offense to support a conviction as an armed career criminal under G.L. c. 269, § 10G(c )

. Because this is a question of law, we conduct an independent review. See Commonwealth v. Rogers, 444 Mass. 234, 235 n. 2, 827 N.E.2d 669 (2005).

It is undisputed that, if committed by an adult, an assault and battery by means of a dangerous weapon would be punishable by imprisonment for a term exceeding one year and thus would constitute a violent crime under the Massachusetts ACCA. However, when committed by a juvenile, an act may be used to enhance a firearm sentence only when it “involv[ed] the use or possession of a deadly weapon.” G.L. c. 140, § 121

. See Commonwealth v. Anderson, 461 Mass. 616, 628–629, 963 N.E.2d 704 (2012). Therefore, the defendant's appeal hinges on whether there is a distinction between the term “deadly weapon,” as used in this definition of violent crime, and “dangerous weapon,” as that term is defined under our common law.

1. Legal significance of the term “deadly weapon.” Because the Legislature did not define “deadly weapon” in § 121

,⁵ we apply well-established principles of statutory construction to determine its meaning. The Commonwealth argues that the Legislature intended “deadly weapon” to be interpreted as synonymous with the term “dangerous weapon” as used in our common law. We disagree.

In general, “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. Welch, 444 Mass. 80, 85, 825 N.E.2d 1005 (2005)

,

quoting from Commonwealth v. Galvin, 388 Mass. 326, 328, 446 N.E.2d 391 (1983)

. To interpret the term “deadly weapon” as interchangeable with the term “dangerous weapon” in this context would be inconsistent with the ordinary usage of the terms, the intent of the Legislature, and the language of the Federal analog, on which the Massachusetts ACCA was modeled.

a. Plain meaning. We begin of course “with the language of the statute itself and ‘presume, as we must, that the Legislature intended what the words of the statute say.’ ” Commonwealth v. Williamson, 462 Mass. 676, 679, 971 N.E.2d 250 (2012)

, quoting from Commonwealth v. Young, 453 Mass. 707, 713, 905 N.E.2d 90 (2009). Here, had the Legislature intended for the Massachusetts ACCA to apply to all juvenile adjudications involving dangerous weapons, it could have used the term “dangerous weapon” rather than “deadly weapon.”

Furthermore, “[w]here the language of a statute is plain, it must be interpreted in accordance with the usual and natural meaning of the words.” Commonwealth v. Kerns, 449 Mass. 641, 651, 871 N.E.2d 433 (2007)

(quotation omitted). See G.L. c. 4, § 6, third par. (“Words and phrases shall be construed according to the common and approved usage of the language; but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in law shall be construed and understood according to such meaning”). Contrary to the Commonwealth's argument, the words “deadly” and “dangerous” do not have the same meaning under ordinary usage. Webster's Third New International Dictionary 580 (2002) (Webster's) defines “deadly” as “tending to produce death.” Notably, it identifies “mortal,” “lethal,” “fatal,” and “deathly” as synonyms of deadly, but does not include dangerous on this list. In contrast, Webster's defines “dangerous” as “able or likely to inflict injury; causing or threatening harm.” Id. at 573.

These definitions make clear that “deadly” has both a stronger and narrower meaning than “dangerous.” “Deadly” connotes an inevitability of death, or at least a higher certainty of death than does “dangerous.” In other words, what is deadly is patently also dangerous, but it does not follow that what is dangerous is necessarily deadly.

Our conclusion is bolstered by the additional and similar principle of statutory construction that requires us to presume that the Legislature was well aware of the use of the term “dangerous weapon” in our statutes and the meaning attributed to that term in

our decades of decisional law. See generally Commonwealth v. Russ R., 433 Mass. 515, 520, 744 N.E.2d 39 (2001)

(“Legislature is presumed to be aware of existing statutes when it ... enacts a new one”); Commonwealth v. Garcia, 82 Mass.App.Ct. 239, 244, 972 N.E.2d 40 (2012). Together, our decisional and statutory law outlines an expansive description of what may constitute a dangerous weapon, and that description may well draw within its purview weapons that may be dangerous, but not deadly. See generally Commonwealth v. Appleby, 380 Mass. 296, 303–304, 402 N.E.2d 1051 (1980).

This historical background, in addition to the plain statutory language, suggests that the Legislature intended to distinguish the type of weapon that would support a conviction under the Massachusetts ACCA by requiring proof of not merely a dangerous weapon, but proof of a deadly weapon. That the Legislature used the term “deadly weapon” and not “dangerous weapon” speaks to its intent that the term carry a narrow meaning in the context of the armed career criminal statute. By contrast, the Commonwealth's proposed interpretation would eliminate the significance of the Legislature's choice of language. We instead construe the statute so as to give meaning to all of its terms. See Commonwealth v. Mendonca, 50 Mass.App.Ct. 684, 687, 740 N.E.2d 1034 (2001)

.

The Commonwealth correctly notes that the terms “dangerous weapon” and “deadly weapon,” at times, have been used interchangeably in our case law. However, until recently, no statute has required us to consider the difference between the two terms. We have not...