Commonwealth v. BastosCommonwealth v. Bastos
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Firearms. Assault and Battery by Means of a Dangerous Weapon. Dangerous Weapon. Statute, Retroactive application. Practice, Criminal, New trial, Juvenile delinquency proceeding, Prior conviction, Sentence, Motion to suppress, Standing, Waiver. Estoppel. Search and Seizure, Standing to object, Consent, Emergency.
Indictments found and returned in the Superior Court Department on September 2, 2011.
The cases were heard by Cornelius J. Moriarty, II, J.; motions for postconviction relief, filed on October 25, 2019, also were heard by him; and motions for postconviction relief also were heard by William F. Sullivan, J.
Michael J. Hickson for the defendant.
Mary H. Nguyen, Assistant District Attorney, for the Commonwealth.
Background. In 2011, the defendant was indicted for unlawful possession of ammunition as an “armed career criminal” under
We briefly outline the facts introduced at trial. On July 15, 2011, responding to a report of a shooting at the corner of Green and Newbury Streets in Brockton, Detective Nazaire Paul went to 45 Newbury Street and spoke with Anna Fernandes, the owner of the house. Fernandes led Paul around to the back door, which was open, where Paul encountered Amthomesha Gomes in the kitchen. Gomes said she was home alone and denied that anyone had run inside the house. Paul entered, with Fernandes behind him, and opened a bedroom door, where he found the defendant lying on the bed. Paul escorted the defendant outside, where other officers detained him. Paul, joined by Sergeant Mark Celia, returned to the house and questioned Gomes, who eventually told the officers that they would find bullets in the bedroom. The police found a plastic bag containing four .45 caliber bullets under the mattress on which the defendant had been lying. Gomes told the officers that the defendant had given her the bullets a few days earlier.2
The trial judge found the defendant guilty. At the subsequent bench trial on the ACCA indictment, defense counsel argued, to no avail, that the Legislature had intentionally distinguished between “deadly” weapons and “dangerous” weapons with respect to prior adjudications of delinquency. The judge found that the defendant had been previously convicted of only two prior violent crimes: the assault by means of a dangerous weapon, for which he was convicted as an adult, and the armed robbery, for which he was adjudicated a youthful offender.3 The judge sentenced the defendant to a State prison term of from ten years to ten years and one day, with credit for 777 days of time served. The defendant did not appeal from the judgment.
In 2019, the defendant filed three motions challenging various aspects of his 2013 conviction and sentence: a motion for a
Discussion. 1. Sentencing. Under
The record at the defendant‘s sentencing enhancement hearing is devoid of any evidence that his youthful offender adjudication
In his rule 25 (b) (2) motion, the defendant sought retroactive application of Rezendes, which was decided after his conviction and sentence became final.5 The Commonwealth argues that Rezendes does not apply to cases on collateral review because it constituted a new rule of criminal procedure and, under the “Teague-Bray framework,” applied only to cases pending on direct appeal. See Commonwealth v. Ashford, 486 Mass. 450,
457 (2020), citing Teague v. Lane, 489 U.S. 288, 307 (1989), and Commonwealth v. Bray, 407 Mass. 296, 303 (1990). The Teague-Bray framework is inapplicable here, however, because Rezendes involved a question of statutory construction. “In general, when we construe a statute, we do not engage in an analysis whether that interpretation is given retroactive or prospective effect; the interpretation we give the statute usually reflects the court‘s view of its meaning since the statute‘s enactment.” Ashford, supra at 453, quoting Eaton v. Federal Nat‘l Mtge. Ass‘n, 462 Mass. 569, 587 (2012).
Because the Rezendes court‘s construction of the ACCA was not constitutionally required, we have discretion to apply it prospectively only, but “[t]here must be good reason ‘to disturb the
We discern no good reason not to apply Rezendes retroactively to the defendant‘s conviction. Distinguishing a “deadly” weapon from a “dangerous” one was not a novel interpretation. The need to prove that a juvenile adjudication involved a “deadly” weapon is not only clear on the face of the statute, see Rezendes, 88 Mass. App. Ct. at 373, but was also signaled in Anderson, 461 Mass. at 631-632, which was decided before the defendant‘s trial. Retroactive application is consistent with the purpose of the ACCA, which maintains the legislative distinction between juvenile and youthful offender adjudications and adult criminal convictions. See Anderson, supra at 630-632. Finally, the interpretation could not be said to create hardship or inequity for the Commonwealth. The statute specifically uses the term “deadly weapon,” the defendant raised the distinction between “deadly” and “dangerous” weapons at sentencing, and even with abundant advance warning, the Commonwealth would not have been able to prove that a “fake gun” was a deadly weapon.
Following the general rule that decisions interpreting statutes are fully retroactive, the defendant is entitled to application of Rezendes here. His youthful offender adjudication for armed robbery with a “fake gun” did not qualify as a prior “violent crime” within the meaning of the ACCA. The defendant should have been sentenced as a violent criminal with only one predicate offense under
2. New trial motions. The defendant‘s two new trial motions both asserted violations of the rights of Amthomesha Gomes. The defendant contends that the trial judge committed reversible error by improperly compelling Gomes to testify under a grant of immunity, and that the first motion judge should have allowed his motion to suppress because the entry and search of Gomes‘s bedroom without a warrant lacked constitutional justification. “On a written motion, a judge ‘may grant a new trial at any time if it appears that justice may not have been done.‘” Commonwealth v. Sanchez, 485 Mass. 491, 498 (2020), quoting
a. Gomes‘s grant of immunity. The defendant asserts that the trial judge erred in granting Gomes immunity because the defendant‘s case did not involve any of the crimes specified in
We do not reach either of these issues because the defendant plainly does not have standing to argue that an immunized witness testified under an improper grant of immunity. See Commonwealth v. Figueroa, 451 Mass. 566, 578 (2008); Smith v. Commonwealth, 386 Mass. 345, 349 (1982). “[T]he statutory procedure for a grant of immunity is designed to accommodate the witness‘s rights and the State‘s need for evidence. The statute is simply not addressed to the interests of defendants.” Figueroa, supra, quoting Smith, supra.
b. Motion to suppress. The defendant does have standing to challenge the seizure of the ammunition that he was found guilty of possessing. “[A] defendant may rely on another‘s reasonable expectation of privacy . . . where the defendant has been charged with possessing contraband at the time of the search and, also at the time of the search, the property was . . . in a place where the codefendant had a reasonable expectation of privacy.” Commonwealth v. DeJesus, 489 Mass. 292, 296-297 (2022). The indictment specified that the charged act of possession occurred on the date of the search. Gomes qualifies as a “codefendant” because
The defendant did not appeal from his conviction and therefore did not challenge the denial of his motion to suppress on direct appeal. The Commonwealth argues that although “[a] motion for new trial under rule 30 (b) may include a request to reconsider a ruling on a motion to suppress evidence,” Commonwealth v. Rodriguez, 443 Mass. 707, 709 (2005), his request to do so here is barred by direct estoppel, see id. at 709-710.
“For direct estoppel to apply, the Commonwealth must show that the issues raised in the defendant‘s rule 30 (b) motion were actually litigated and determined on the defendant‘s original motion to suppress, that such determination was essential to the defendant‘s conviction, and that the defendant had an opportunity to obtain review of the determination of [the] motion to suppress” (emphasis added). Rodriguez, 443 Mass. at 710. See Sena v. Commonwealth, 417 Mass. 250, 260 (1994) (“for collateral estoppel to preclude litigation of an issue, there must have been available some avenue for review of the prior ruling on the issue“). Here, the motion to suppress was litigated and determined, the denial of the motion was essential to the conviction, and the defendant had an available avenue and opportunity to appeal. However, we are not aware of any Massachusetts precedent in which the doctrine of direct estoppel has been applied against a criminal defendant who did not actually take an appeal from the decision adjudicating the issue sought to be relitigated.
We think that this case is best treated as one in which the defendant waived his claim by failing to assert it at the earliest opportunity, which we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002); Commonwealth v. Azar, 435 Mass. 675, 685 (2002); Commonwealth v. Crawford, 430 Mass. 683, 685 (2000). Cf. Commonwealth v. Smith, 460 Mass. 318, 320-321 (2011) (“in a capital case, issues raised in a postappeal motion for a new trial that were or could have been raised at trial or in the direct appeal are to be measured by the substantial risk of a miscarriage of justice standard“). In addition, if the defendant had a meritorious appeal from the denial of his motion to suppress, but he did not pursue the appeal because of neglect or erroneous advice on the part of counsel, he may well have a viable new trial motion based on ineffective assistance. See White v. Commonwealth, 479 Mass. 1023, 1024 (2018); Commonwealth v. Cowie, 404 Mass. 119, 122–123 (1989); Commonwealth v.Claudio, 96 Mass. App. Ct. 787, 794 (2020). Whether we review the defendant‘s late-raised claim directly under the substantial risk of a miscarriage of justice standard, or indirectly as a claim of ineffective assistance of counsel, “our approach is essentially the same.” Azar, supra at 686-687.
We discern no risk of a miscarriage of justice based on the initial entry or search of Gomes‘s bedroom. As the second motion judge concluded, Paul‘s warrantless entry into the bedroom, where he located and arrested the defendant, was both justified, based on information that a person who had just been involved in a shooting nearby had fled inside the building, and limited in scope. See Commonwealth v. Peters, 453 Mass. 818, 823-825 (2009); Commonwealth v. McCollum, 79 Mass. App. Ct. 239, 250-251 (2011). In addition, Paul entered the dwelling with the permission of Fernandes, whom he encountered unloading groceries from her car parked in the driveway. Fernandes told Paul that she and her husband owned the building and then accompanied Paul to the rear entrance. Where Paul relied on Fernandes‘s apparent authority, as he responded to an ongoing emergency, the denial of the motion to suppress did not create a risk of a miscarriage of justice. See Commonwealth v. Porter P., 456 Mass. 254, 270-271 (2010); Commonwealth v. Santos, 97 Mass. App. Ct. 719, 723 (2020).
The subsequent search of the bedroom was conducted only after the officers inquired further into the ownership and occupancy of the premises and obtained written consent from Gomes‘s mother, who lived with Gomes in the first-floor unit.6 The record supports the second motion judge‘s conclusion that Gomes‘s mother shared common authority over the home and had actual authority to consent to the search. See Porter P., 456 Mass. at 262. To the extent the officers could have been more diligent in verifying Gomes‘s mother‘s authority to consent to the search, see id. at 271, we do not perceive a substantial risk of a
Conclusion. The orders denying the defendant‘s motions for new trial are affirmed. The order denying the defendant‘s rule 25 (b) (2) motion is reversed. The matter is remanded to the Superior Court, where the judgment of conviction under
So ordered.