Commonwealth v. Colon
81 Mass. App. Ct. 8
| Mass. App. Ct. | 2011Background
- Defendant convicted in 2006 at first trial of assault and battery by means of a dangerous weapon, carrying a firearm without a license, and possession of ammunition without an FID card.
- In 2007, a second trial before a different jury convicted him of armed career criminal status under G. L. 269, § 10G(c) based on three predicate offenses.
- The Commonwealth introduced certified records of three prior convictions (2004 ABPO, 2001 ABPO, 2002 ABPO) identified only as assault and battery on a police officer and assault and battery, with no underlying facts provided.
- The trial judge instructed that assault and battery is a violent crime; defense objected to the instruction and to lack of underlying facts for predicates.
- Massachusetts ACCA uses a categorical approach, with a modified categorical approach in narrow cases; ABPO may qualify under the residual clause, while assault and battery may not depending on the underlying battery type.
- Court reversed the three-predicate armed career criminal finding, remanding for resentencing based on two predicate violent crimes (the ABPO convictions); other judgments affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is a certified conviction record sufficient for ACCA predicates? | State relies on certified records to prove three predicates. | Records lack underlying facts; insufficient to prove three violent predicates. | No for three predicates; ABPO qualifies, assault and battery does not. |
| Does ABPO constitute a Massachusetts ACCA predicate under the residual clause? | ABPO presents a serious risk of physical injury. | ABPO does not necessarily involve serious risk under the residual clause. | ABPO qualifies as a violent crime under the residual clause. |
| Does assault and battery qualify as a Massachusetts ACCA predicate under the force clause when based on offensive battery? | Assault and battery generally qualifies as violent force. | Offensive battery lacks the element of physical force. | Offensive battery does not meet the force-clause standard; harmful/reckless batteries do. |
Key Cases Cited
- Johnson v. United States, 130 S. Ct. 1265 (2010) (interprets 'physical force' as substantial force for the force clause)
- Begay v. United States, 553 U.S. 137 (2008) (explains risk framework for residual clause; purposeful, violent conduct)
- James v. United States, 550 U.S. 192 (2007) (examines residual clause scope and risk of physical injury)
- Latimore, 378 Mass. 671 (1979) (Latimore: sufficiency framework for predicate offenses under MA ACCA)
- Shepard v. United States, 544 U.S. 13 (2005) (modified categorical approach guide for prior convictions)
- Holloway, 630 F.3d 252 (1st Cir. 2011) (applies modified categorical approach in MA ACCA context)
- Dancy, 640 F.3d 455 (1st Cir. 2011) (ABPO as violent crime under MA ACCA residual framework)