Commonwealth v. Garrett, 473 Mass. 257

Defendant convicted by Superior Court jury on three armed robbery with a firearm while masked indictments; BB gun used to commit robberies; statutory definition issue centers on whether BB gun qualifies as a firearm
Commonwealth argues BB gun falls within firearm definition via gun control act; Massachusetts courts historically distinguish BB guns from firearms
Legislation treats BB guns separately from firearms; gun control act broad not extended to BB guns; 1998 act added sentencing enhancements for firearms but did not redefine firearm to include BB guns
Defendant contends BB gun not a firearm, so evidence insufficient and indictments/instructions flawed; trial counsel issues raised
Robberies involved three incidents in Pittsfield; BB gun was spray-painted to resemble real firearm; victims feared for their safety; defendant apprehended with co‑defendant Methe
Court vacates armed robbery convictions, remands for entry of guilt on unarmed robbery; resentencing ordered; case remitted for entry of lesser included offense conviction

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a BB gun is a firearm under the armed robbery statute	Commonwealth contends BB gun qualifies as firearm under statute	Fenton framework; BB gun not a firearm; separate BB gun regulation persists	BB gun not a firearm; convictions vacated; remand for unarmed robbery
Validity of indictments alleging armed robbery with a firearm while masked	Indictments provided fair notice; caption referenced firearm-armed robbery	Indictments failed to use the word firearm explicitly in the charge	Indictments valid; fair notice; sufficient to charge offense
Jury instruction permitting replica weapon as firearm error	Instruction supported conviction	Instruction improper since BB gun not a firearm and not charged as dangerous weapon	Instruction erroneous as applied to firearm element; harmless given outcome
Ineffective assistance regarding alleged exculpatory DNA evidence	Counsel should have argued DNA favored defendant	DNA evidence not dispositive; likelihood of different outcome minimal	No reasonable probability of different outcome; no ineffectiveness due to lack of merit
Unarmed robbery as lesser included offense after BB gun not firearm	Jury conviction for armed robbery unsupported; unarmed robbery should be sole conviction	No lesser included-offense instruction given	Vacate armed robbery convictions; remand for unarmed robbery conviction and resentencing

Commonwealth v. Fenton, 395 Mass. 92 (1985) (BB gun not a firearm under prior framework; separate regulation remains)
Commonwealth v. Sayers, 438 Mass. 238 (2002) (broad firearm definitions can include BB guns in school-context statute; not controlling here)
Commonwealth v. Galvin, 388 Mass. 326 (1983) (interpret statute by ordinary language and legislative history)
Commonwealth v. Canty, 466 Mass. 535 (2013) (indictment sufficiency; fair notice principle)
Commonwealth v. Sperrazza, 372 Mass. 667 (1977) (absence of explicit firearm word does not defeat indictment)
Commonwealth v. Labadie, 467 Mass. 81 (2014) (courts can correct for lack of greater-offense conviction by entering lesser included offense)
Commonwealth v. French, 462 Mass. 41 (2012) (inherent authority to enter guilt on lesser included offense)
Commonwealth v. Powell, 433 Mass. 399 (2001) (dangerous weapon theory where replica looks real; supports alternative charging)