Commonwealth v. Taylor

• Decision Date: 17 December 2020
• Docket Number: SJC-12877
• Citation: 486 Mass. 469,159 N.E.3d 143
• Parties: COMMONWEALTH v. Keyshaun TAYLOR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

486 Mass. 469

159 N.E.3d 143

COMMONWEALTH

v.Keyshaun TAYLOR.

SJC-12877

Supreme Judicial Court of Massachusetts, Norfolk..

Argued April 7, 2020.

Decided December 17, 2020.

Seena A. Pidani for the defendant.

Michael McGee, Assistant District Attorney (Emil Ata, Assistant District Attorney, also present), for the Commonwealth.

Timothy St. Lawrence, for Lee Ashford, amicus curiae, submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.¹

GAZIANO, J.

General Laws c. 269, § 10 (n ), provides that whoever violates G. L. c. 269, § 10 (a ), carrying a firearm without a license, or G. L. c. 269, § 10 (c ), unlawful possession of a machine gun or sawed-off shotgun, "by means of a loaded [weapon] shall be further punished by imprisonment in the house of correction for not more than [two and one-half] years, which sentence shall begin from and after the expiration of the sentence for the violation of [ § 10 (a ) or (c ) ]." The Commonwealth charged the defendant with carrying a loaded firearm, in violation of § 10 (n ), but not either of the required predicate offenses of § 10 (a ) or (c ). See Commonwealth v. Brown, 479 Mass. 600, 604, 97 N.E.3d 349 (2018). At trial, after the close of the Commonwealth's case, a District Court judge granted the defendant's motion for a required finding of not guilty based on this defect in charging. The Commonwealth subsequently obtained a second complaint charging the defendant with violating G. L. c. 269, § 10 (a ), based on the same alleged conduct. The defendant moved to dismiss on grounds of double jeopardy, and the motion judge reported four questions to the Appeals Court.² After the Appeals Court issued its decision, we allowed the defendant's application for further appellate review. We conclude that double jeopardy bars the current prosecution because the termination of the trial, which properly is considered a mistrial rather than an acquittal, was not justified by manifest necessity.³

Background. In April of 2017, a complaint issued against the defendant, charging him with a single count of carrying a loaded firearm, in violation of G. L. c. 269, § 10 (n ). That count contained the allegation that the defendant carried a loaded firearm, in violation of both G. L. c. 269, § 10 (a ) (carrying a firearm without a license), and G. L. c. 269, § 10 (n ) (carrying a loaded firearm), as well as descriptions of the potential penalties for each of those offenses. The complaint did not, however, contain a separate count for either of the required predicate offenses, G. L. c. 269, § 10 (a ), or G. L. c. 269, § 10 (c ) (unlawful possession of a machine gun or sawed-off shotgun). See Brown, 479 Mass. at 604, 97 N.E.3d 349.

After the close of the Commonwealth's case, the defendant moved for a required finding of not guilty. He argued that the Commonwealth could not prove a finding of a violation of a predicate crime, an element of G. L. c. 269, § 10 (n ). The trial judge agreed that the lack of a predicate charge impeded the prosecution, and he stated that a charge under § 10 (n ) requires an additional count of one of the predicate offenses.

The Commonwealth did not dispute this interpretation, but requested that the judge instruct the jury on G. L. c. 269, § 10 (a ), rather than § 10 (n ). In response, the defendant argued that amendment would be improper because § 10 (a ) was not a lesser included offense of § 10 (n ). The defendant also said that if the Commonwealth were to bring charges again, that would implicate the protections against double jeopardy. The Commonwealth later moved to amend the complaint to a single violation of G. L. c. 269, § 10 (a ). Without explicitly ruling on either of the Commonwealth's requests, the trial judge allowed the defendant's motion for a required finding of not guilty on the solitary count of § 10 (n ).

The Commonwealth subsequently charged the defendant in a second complaint with a violation of G. L. c. 269, § 10 (a ), based on the same conduct as the previous complaint, and the defendant moved to dismiss on double jeopardy grounds. A District Court judge, who was not the trial judge in the first prosecution, at first allowed the defendant's motion to dismiss; after the Commonwealth sought reconsideration, the motion judge reported the following questions to the Appeals Court:⁴

"1. Is G. L. c. 269, § 10 (n ) [,] a freestanding crime?"⁵

"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 [C]ommonwealth 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?"

See Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004).

Accompanying her report, the motion judge included a legal analysis. She determined that G. L. c. 269, § 10 (n ), is a freestanding offense, of which G. L. c. 269, § 10 (a ), is a lesser included offense. She concluded, however, that judicial estoppel precluded the defendant's double jeopardy claim. Because, in response to the Commonwealth's request for the judge to instruct on § 10 (a ), the defendant had argued that § 10 (a ) was not a lesser included offense of § 10 (n ), the motion judge reasoned that the defendant subsequently was precluded from arguing that double jeopardy bars the current prosecution of § 10 (a ) as a lesser included offense of the prior § 10 (n ) charge.

The Appeals Court concluded that G. L. c. 269, § 10 (n ), is not a freestanding crime, but, rather, a sentencing enhancement. See Commonwealth v. Taylor, 96 Mass. App. Ct. 143, 146, 133 N.E.3d 828 (2019), citing Brown, 479 Mass. at 604, 97 N.E.3d 349. Based on this conclusion, the court determined that § 10 (a ) cannot be a lesser included offense of § 10 (n ). See Taylor, supra at 146-147, 133 N.E.3d 828. The court then ruled that judicial estoppel did not preclude the defendant's arguments. See id. at 147-149, 133 N.E.3d 828.

Lastly, the Appeals Court ruled that double jeopardy did not bar the current prosecution. See Taylor, 96 Mass. App. Ct. at 149, 133 N.E.3d 828. The court reasoned that because G. L. c. 269, § 10 (n ), is a sentencing enhancement, the first complaint was a nullity over which the District Court had no jurisdiction. See Taylor, supra at 151, 133 N.E.3d 828. Therefore, the court concluded, under the jurisdictional exception, jeopardy never attached. See id., citing Commonwealth v. Love, 452 Mass. 498, 504, 895 N.E.2d 744 (2008). The court further determined that, even if jeopardy had attached, it did not terminate because the acquittal was not on the "facts and merits." See Taylor, supra, quoting Commonwealth v. Gonzalez, 437 Mass. 276, 282, 771 N.E.2d 134 (2002), cert. denied, 538 U.S. 962, 123 S.Ct. 1748, 155 L.Ed.2d 514 (2003). We subsequently granted the defendant's application for further appellate review.

Discussion. We conclude that G. L. c. 269, § 10 (n ), is not a freestanding crime. Moreover, under the facts of this case, G. L. c. 269, § 10 (a ), is a lesser included offense of § 10 (n ). Additionally, we agree with the Appeals Court that judicial estoppel does not preclude the defendant's argument that a trial on § 10 (a ) would be prohibited under the protections against double jeopardy.

As to the substance of the double jeopardy claim, we conclude that jeopardy attached when the jury were sworn, but that the trial judge's order was not based on the facts and merits of the evidence; thus, the order was equivalent to the declaration of a mistrial. Because the defendant did not consent to reprosecution, the second complaint is barred unless there was a manifest necessity for the mistrial. As an alternative to ending the trial, the judge could have granted the Commonwealth's request to instruct on the lesser included offense of G. L. c. 269, § 10 (a ), instead of the defective, greater offense of § 10 (n ). Thus, there was no manifest necessity for the mistrial, and the defendant's motion to dismiss on double jeopardy grounds should be granted.

To set the stage for our double jeopardy analysis, we first discuss certain aspects of the statutes at issue.

1. Statutory scheme. General Laws c. 269, § 10 (a ), provides for the punishment of anyone who knowingly possesses a firearm, outside the individual's residence or place of business, absent compliance with the relevant licensing provisions. General Laws c. 269, § 10 (n ), states that "[w]hoever violates [ § 10 (a ) or (c ) ] by means of a loaded firearm ... shall be further punished by imprisonment in the house of correction for not more than [two and one-half] years, which sentence shall begin from and after the expiration of the sentence for the violation of [ § 10 (a ) or (c ) ]" (emphasis added).⁶ "Further punishment, of course, can only occur if there is punishment in the first instance."

Commonwealth v. Dancy, 90 Mass. App. Ct. 703, 705, 63 N.E.3d 1128 (2016). By the same token, the § 10 (n ) sentence can be "from and after" only if there is a previous sentence. Cf. Commonwealth v. Taylor, 413 Mass. 243, 246 n.2, 596 N.E.2d 333 (1992).

For these reasons, we have held that "in order to be convicted under G. L. c. 269, § 10 (n ), an individual must first have been convicted under G. L. c. 269, § 10 (a ) or (c )." Brown, 479 Mass. at 604, 97 N.E.3d 349. See 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). Thus, the parties and the trial judge properly concluded that, had the jury been instructed only on G. L. c. 269, § 10 (n ), the defendant could not have been convicted lawfully.

The foregoing observations, however, do not answer all...