Commonwealth v. Taylor, 18-P-1310

• Decision Date: 26 September 2019
• Docket Number: No. 18-P-1310,18-P-1310
• Citation: 133 N.E.3d 828,96 Mass.App.Ct. 143
• Parties: COMMONWEALTH v. Keyshaun TAYLOR.
• Court: Appeals Court of Massachusetts

96 Mass.App.Ct. 143
133 N.E.3d 828

COMMONWEALTH
v.
Keyshaun TAYLOR.

No. 18-P-1310

Appeals Court of Massachusetts, Norfolk..

Argued April 12, 2019
Decided September 26, 2019

Seena A. Pidani for the defendant.

Susanne M. O'Neil, Assistant District Attorney, for the Commonwealth.

Present: Vuono, Wolohojian, & Hand, JJ.

HAND, J.

96 Mass.App.Ct. 143

This case was reported to us by a judge of the District Court (motion judge) pursuant to Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004). As we explain in greater detail below, a different District Court judge (trial judge) entered a required finding of not guilty on a complaint charging the defendant with

96 Mass.App.Ct. 144

carrying a loaded firearm in violation of G. L. c. 269, § 10(n ) ; the defendant was later charged in a second complaint alleging a violation of G. L. c. 269, § 10(a ), carrying a firearm without a license. The second complaint was dismissed on double jeopardy grounds,¹ and the Commonwealth moved for reconsideration. After a hearing, the motion judge took the matter under advisement. She subsequently issued the rule 34 report, which included the procedural history of the two complaints and rulings of law outlining the judge's revised legal conclusion that the Commonwealth could proceed with its prosecution on the second complaint.²

Background. On April 4, 2017, the defendant was arraigned on a single count of carrying a loaded firearm in violation of G. L. c. 269, § 10(n ) (first complaint).^{3 ,4}

133 N.E.3d 831

A jury trial on the first complaint was held on December 14, 2017. At the close of the Commonwealth's evidence, the defendant moved for a required finding of not guilty, arguing that without an accompanying charge of one of the predicate offenses to § 10(n ), either G. L. c. 269, § 10(a ) (carrying a firearm without a license), or G. L. c. 269, § 10(c ) (possession of a machine gun or sawed-off shotgun), "it would be impossible" for the Commonwealth to prove a violation of § 10(n ). In response, the Commonwealth asked the trial judge to "conform to the evidence" by instructing the jury on a charge of violation of G. L. c. 269, § 10(a ).⁵ After that request was denied, the Commonwealth moved to amend the complaint. Defense counsel objected

96 Mass.App.Ct. 145

to any amendment on the ground that § 10(a ) is not a lesser included offense of § 10(n ), and argued that the "only proper avenue" was for the trial judge to enter a required finding of not guilty.⁶ Defense counsel noted that if the Commonwealth later wished to bring a new complaint including a § 10(a ) charge, it was "certainly free to do so, but [the defendant's] argument would be that there are double jeopardy implications because we have now tried the matter." The trial judge allowed the defendant's motion for a required finding of not guilty on the charge of violating G. L. c. 269, § 10(n ).⁷ There is no dispute that the judge allowed the motion for a required finding of not guilty based on the Commonwealth's charging error, and not because the evidence was insufficient to prove a violation of either § 10(n ) or § 10(a ).

Within a few weeks of the conclusion of the defendant's trial, the Commonwealth obtained a second complaint, which charged the defendant with one count of violating G. L. c. 269, § 10(a ), carrying a firearm without a license, based on the same conduct underlying the first complaint. In lieu of bail, the defendant was released subject to pretrial electronic monitoring and a curfew. Initially, the motion judge allowed the defendant's motion to dismiss the second complaint on the basis that double jeopardy precluded the Commonwealth from charging the defendant with violating § 10(a ) in light of the not guilty finding that had entered on the violation of § 10(n ) charged in the first complaint. The Commonwealth moved for reconsideration.

133 N.E.3d 832

Taking the motion under advisement, the judge prepared a revised legal analysis concluding that in the circumstances of this case, the doctrine of

96 Mass.App.Ct. 146

judicial estoppel applied, defeating the defendant's protection against double jeopardy.⁸ The judge thereupon reported the following four questions to us:

"1. Is G. L. c. 269, § 10(n ) [,] a freestanding crime?

"2. Is G. L. c. 269, § 10(a ) [,] a lesser included offense of G. L. c. 269, § 10(n ) under Morey v. Commonwealth, 108 Mass. 433 (1871) ?

"3. In the context of double jeopardy, is the doctrine of judicial estoppel applicable as against a defendant?

"4. If the answers to questions 1-3 are ‘Yes,’ did the court, in the circumstances of this case, properly conclude that the commonwealth may proceed upon the complaint charging the defendant with a violation of G. L. c. 269, § 10(a ) [,] without violating the defendant's protections afforded under principles of double jeopardy?"⁹

We answer the questions "insofar as it is necessary to resolve the issues raised by the record." Commonwealth v. Markvart, 437 Mass. 331, 333, 771 N.E.2d 778 (2002).

Discussion. We turn now to the reported questions.

1. Is G. L. c. 269, § 10(n), a freestanding crime? No. General Laws c. 269, § 10(n ), provides a sentencing enhancement provision applicable to § 10(a ) and § 10(c ), not an independent crime. See Commonwealth v. Brown, 479 Mass. 600, 604, 97 N.E.3d 349 (2018), citing Commonwealth v. Loadholt, 456 Mass. 411, 423-424, 923 N.E.2d 1037 (2010), S.C., 460 Mass. 723, 954 N.E.2d 1128 (2011) ( section 10 [n ] provides a "sentencing enhancement"); Commonwealth v. Dancy, 90 Mass. App. Ct. 703, 705, 63 N.E.3d 1128 (2016) (same). A defendant cannot be convicted of a violation of § 10(n ) without first being convicted of violating § 10(a ) or § 10(c ). Brown, supra.

2. Is G. L. c. 269, § 10( a ) , a lesser included offense of G. L. c. 269, § 10( n ) , under Morey v. Commonwealth, 108 Mass. 433 (1871) ? No. Section 10(n ) is a sentencing enhancement of § 10(a ) and § 10(c ), not an independent crime. See Brown, 479 Mass. at 604, 97 N.E.3d 349. Accordingly, while § 10(a ) is one of the predicate offenses of

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§ 10(n ), § 10(a ) is not and cannot be its lesser included offense.

3. In the context of this case, does judicial estoppel preclude the defendant from arguing that double jeopardy protects him from being prosecuted on the second complaint?¹⁰ No.¹¹ Judicial estoppel

133 N.E.3d 833

is an equitable doctrine that "prevent[s] the manipulation of the judicial process by litigants." Commonwealth v. Rodriguez, 476 Mass. 367, 375, 68 N.E.3d 635 (2017), quoting Commonwealth v. DiBenedetto, 458 Mass. 657, 671, 941 N.E.2d 580 (2011), S.C., 475 Mass. 429, 57 N.E.3d 987 (2016). It applies where "a party has adopted one position, secured a favorable decision, and then taken a contradictory position in search of legal advantage." Rodriguez, supra, quoting Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 641, 824 N.E.2d 23 (2005). The doctrine has been interpreted to mean that "[a] party who has successfully maintained a certain position at a trial cannot in a subsequent trial between the same parties be permitted to assume a position relative to the same subject that is directly contrary to that taken at the first trial." Commonwealth v. Prophete, 443 Mass. 548, 555 n.10, 823 N.E.2d 343 (2005), quoting East Cambridge Sav. Bank v. Wheeler, 422 Mass. 621, 623, 664 N.E.2d 446 (1996). Here, having argued for a required finding of not guilty on the § 10(n ) charge at the trial of the first complaint, and faced with an oral motion to amend that charge to one of violating § 10(a ), defense counsel initially argued that § 10(a ) is not a lesser included offense of § 10(n ). Later in the sidebar discussion, counsel signaled that, should the Commonwealth bring a subsequent complaint charging violation of § 10(a ), the defendant would move to dismiss on double jeopardy grounds. Counsel did just that, arguing for dismissal of the § 10(a ) charge in the second complaint on the basis that § 10(a ) is a lesser included offense of § 10(n ). Because in addressing the § 10(n ) charge in the first complaint, the defendant neither staked out a

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firm legal position nor obtained a favorable ruling, judicial estoppel does not apply here.

First, the defendant did not ultimately "secure[ ] a favorable decision" when he argued for a required finding of not guilty in the first trial. Rodriguez, 476 Mass. at 375, 68 N.E.3d 635. Despite the judge's entry of a not guilty finding, any beneficial effect of that ruling was, as we conclude below, fleeting: while the ruling terminated the first complaint, it was not an "acquittal upon the facts and merits" of the case, G. L. c. 263, § 7, and so could not terminate any jeopardy that had attached to the prosecution of the first complaint. See Commonwealth v. Brown, 470 Mass. 595, 603-604, 24 N.E.3d...