COMMONWEALTH vs. DAUNTE BEAL.
SJC-11883
Supreme Judicial Court of Massachusetts
May 24, 2016
474 Mass. 341 (2016)
Suffolk. December 10, 2015. - May 24, 2016. Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.
At a criminal trial, the evidence was sufficient to permit a rational fact finder to find beyond a reasonable doubt the essential elements of the crime of assault and battery by means of a dangerous weapon resulting in serious bodily injury, where, despite the absence of medical evidence or testimony from the victim regarding his injuries, the jury could have concluded, without undue speculation, that the gunshot wound caused the victim‘s injuries, given that the evidence of the injuries that was presented (i.e., the inability to use one‘s legs, the need to use a wheelchair, and the necessity of using crutches and braces in order to walk) was within the ordinary, common experience of a reasonable juror. [345-347]
This court vacated the defendant‘s conviction of assault by means of a dangerous weapon with regard to one victim as duplicative of the defendant‘s conviction of assault and battery by means of a dangerous weapon causing serious bodily injury to that same victim, where the record did not permit this court to determine on which facts each conviction rested [347-348]; however, this court concluded that the conviction of assault by means of a dangerous weapon with regard to a second victim was not duplicative of the defendant‘s conviction of assault and battery by means of a dangerous weapon causing serious bodily injury to the first victim [348]; finally, this court concluded that the defendant‘s conviction of unlawful possession of ammunition was a lesser offense included within his conviction of unlawful possession of a loaded firearm [348-349].
This court concluded that the residual clause of the Massachusetts armed career criminal act,
INDICTMENTS found and returned in the Superior Court Department on November 14, 2008, and January 30, 2009.
The cases were tried before Thomas E. Connolly, J.
The Supreme Judicial Court granted an application for direct appellate review.
Jessica L. LaClair for the defendant.
Teresa K. Anderson, Assistant District Attorney (Joseph F. Janezic, III, Assistant District Attorney, also present) for the Commonwealth.
DUFFLY, J. This case arises from a shooting that occurred at a cookout in the Dorchester section of Boston on a summer night in 2008. The defendant was convicted by a Superior Court jury on indictments charging unlawful possession of a firearm,
The defendant appealed from his convictions, and we allowed his application for direct appellate review. The defendant argues that (1) the evidence was insufficient to prove assault and battery by means of a dangerous weapon causing serious bodily injury; (2) the convictions of two counts of assault by means of a dangerous weapon were duplicative of the conviction of assault and battery by means of a dangerous weapon causing serious bodily injury; and (3) the conviction of possession of ammunition is duplicative of the conviction of possession of a loaded firearm. He also contends that the evidence presented by the Commonwealth in support of his prior convictions was insufficient to establish that he had committed a “violent crime,” and therefore
1. Background. We summarize the facts the jury could have found, reserving additional facts for later discussion. On the night of the shooting, Joao Pereira, the shooting victim, and his brother, Ovidio Pereira,3 were celebrating a friend‘s birthday at a cookout at a house on Howard Avenue in Dorchester. As some of the guests were standing on the front porch, a man who was walking past the house on the opposite side of the street said to “Nelito,” one of the partygoers, “Oh, what are you looking at?” Nelito responded, “Oh, you are looking at me, I‘m just looking at you.” The man continued walking down the street, but returned with another man, who asked Joao if he “[had] a problem.” The two men eventually walked away and had a conversation with two other men in a Toyota Corolla automobile that was driving past. The Toyota continued up the street, turned around, and stopped in front of the house where the cookout was taking place. By that time, there were approximately eight people standing in front of the house, and another round of verbal exchanges occurred between the occupants of the Toyota and the guests at the party.
As the vehicle idled in the street, the driver said, “Oh, you guys are still looking at us funny.” Joao responded, “Nobody‘s looking at you,” to which the driver retorted, “Oh, if you keep looking at me funny, I‘m going to get out the car and slap you.” Joao replied, “You don‘t have no right to slap nobody.” Joao and another partygoer then threw beer bottles at the Toyota; one bottle hit the driver in the head and another bottle broke the rear window on the driver‘s side.
The driver, later identified as the defendant,4 got out of the vehicle, aimed a gun at the group on the porch, and fired two shots. The partygoers scattered in different directions. Joao and Ovidio ran to the back of the house with the defendant chasing after them; they tried to get inside, but the door was locked. They ran back to the front porch where the defendant, standing on the first step, fired several more shots at them. One bullet struck Joao in the lower back.
The defendant testified in his own defense and admitted to having been in the Toyota on the night of the shooting, but claimed that another occupant of the vehicle had fired the shots. In support of this contention, the defendant asserted that he was not wearing the white T-shirt and dark baseball hat that a witness testified the shooter had been wearing.
At the close of the Commonwealth‘s case and again at the close of all the evidence, the defendant filed motions for required findings of not guilty; the motions were denied. After the jury returned their verdicts, a trial was conducted on the subsequent offender portion of the indictments. The same jury heard evidence that the defendant previously had been convicted, pursuant to his
2. Sufficiency of the evidence of assault and battery by means of a dangerous weapon resulting in serious bodily injury. We review the denial of a motion for a required finding to determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). The defendant contends that the evidence was insufficient to support a conviction of assault and battery by means of a dangerous weapon resulting in serious bodily injury,
“Serious bodily injury” means “bodily injury which results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death.”
Here, the evidence established that the defendant shot Joao in the lower back. Ovidio testified that Joao spent two months in a Boston hospital, where he was taken immediately following the
Jurors are permitted to draw reasonable inferences from the evidence based on their common sense and life experience. See Commonwealth v. Kostka, 370 Mass. 516, 536 (1976). Based on the evidence presented in this case, the jury were permitted to find that the gunshot wound inflicted by the defendant caused Joao to suffer an impairment of his limbs, which resulted in “significant damage” to the structure of his legs, and that the capacity of his legs “to perform [their] usual function [was] compromised.” See Commonwealth v. Scott, supra. The impairment of Joao‘s legs plainly meets the definition of substantial bodily injury as set forth in the statute. See id.;
The defendant maintains that the jury could not reach this conclusion absent medical evidence or testimony from the victim. In these circumstances, we do not agree. Although the evidence did not explain the precise biological mechanism by which the gunshot wound could have impaired Joao‘s ability to walk or to use his legs without assistance, the jury were permitted to conclude, based on common sense, that the gunshot wound to Joao‘s back compromised his ability to use his lower limbs. The defendant‘s reliance on Commonwealth v. Scott, supra, is misplaced. There, the victim‘s medical records established that she suffered from “a ‘grade II’ laceration of the liver,” id. at 357, but the Commonwealth did not introduce medical testimony to explain the “technical terminology” used in the reports or to establish
3. Duplicative convictions. The defendant contends that his convictions on two indictments charging assault by means of a dangerous weapon (one assault against Joao and the other against Ovidio) were duplicative of his conviction of the greater offense of assault and battery by means of a dangerous weapon causing serious bodily injury against Joao. The Commonwealth‘s theory at trial was that the defendant fired shots at Joao and Ovidio in two distinct episodes: one when the defendant got out of the Toyota and fired two shots, and another after the defendant chased Joao and Ovidio to the rear of house and back around to the front porch, at which point he fired several more shots, one of which hit Joao in the back. The judge did not instruct the jury that these offenses must be based on separate and distinct acts, nor did the judge explain which of the alleged acts corresponded to each of the charges.
Because the defendant did not raise the issue of duplicative convictions in the Superior Court, we review his claim to determine whether there was an error that created a substantial risk of a miscarriage of justice. See Commonwealth v. Kelly, 470 Mass. 682, 697-698 (2015). As the defendant argues, assault by means of a dangerous weapon is a lesser included offense of assault and battery by means of a dangerous weapon causing serious bodily injury. See Commonwealth v. Porro, 458 Mass. 526, 529 (2010). “Convictions of both greater and lesser included acts are permitted only when they ‘rest on separate and distinct acts.’ ” Commonwealth v. Gouse, 461 Mass. 787, 798 (2012), quoting Commonwealth v. Jackson, 80 Mass. App. Ct. 528, 529 (2011). The jury must determine whether a defendant‘s acts “constitute separate and distinct acts or must be considered a single crime.”
We examine the convictions of assault by means of a dangerous weapon and assault and battery by means of a dangerous weapon causing serious bodily injury based on the actions against Joao. As we explained in Commonwealth v. Kelly, supra, even if “there was evidence of separate and distinct acts sufficient to convict with respect to each ... charge, the judge‘s failure to instruct the jury that each charge must be based on a separate and distinct act create[s] a substantial risk of a miscarriage of justice.” Id. at 702. Accordingly, although the prosecutor argued in closing that the defendant‘s shooting at Joao occurred in two separate episodes that could support two distinct convictions, and the facts might support that conclusion, we are unable to determine on which facts each conviction rested. Contrary to the Commonwealth‘s argument, the judge‘s instruction that each charge must be considered separately does not cure the error. See id. at 701. Therefore, because we have “serious doubt” whether the jury impermissibly based the convictions of the greater and lesser included offenses on the same act, the conviction of assault by means of a dangerous weapon against Joao must be vacated. See id. at 700-701.
A different analysis applies to the defendant‘s conviction of assault by means of a dangerous weapon against Ovidio. As to this charge, the judge instructed that the defendant‘s acts must have been directed against Ovidio. The defendant was not charged with the greater offense of assault and battery by means of a dangerous weapon against him. In this context, even if the jury convicted the defendant of the assault against Ovidio based on the gunshot that hit Joao, which is the same act underlying the defendant‘s conviction of assault and battery by means of a dangerous weapon against Joao, those two convictions are not duplicative. “[W]henever a single criminal transaction gives rise to crimes of violence which are committed against several victims, then multiple indictments (and punishments) for the crime against each victim are appropriate.” Commonwealth v. Traylor, 472 Mass. 260, 268 (2015), quoting Commonwealth v. Donovan, 395 Mass. 20, 31 (1985). Consequently, the judge was not required to instruct the jury on separate and distinct acts with respect to this charge.
The defendant also contends, and the Commonwealth now concedes, that his conviction of unlawful possession of ammunition under
4. Conviction under the Massachusetts armed career criminal act. The ACCA imposes an enhanced sentence on an individual who is convicted of possession of a firearm if that person previously has been convicted of a “violent crime” or a serious drug offense. See Commonwealth v. Eberhart, 461 Mass. 809, 814 (2012);
The defendant previously was convicted of assault and battery,
Under the invalidated residual clause in the Federal ACCA,
The language of the residual clause in the Massachusetts ACCA is almost identical to that in the Federal ACCA; the only difference
We turn next to the defendant‘s argument that the evidence was insufficient to support his conviction under the ACCA because the Commonwealth failed to present evidence that his two predicate offenses were “violent crimes.” As noted, the only evidence the Commonwealth introduced relative to those convictions was the copies of the certified convictions of the defendant‘s prior offenses (assault and battery, and assault and battery on a public employee).
Our decision in Eberhart resolves this issue. In that case, we explained that we use the “modified categorical approach” to determine whether a defendant had been convicted of a violent crime when the defendant was “convicted under a broad statute that encompasses multiple crimes,” not all of which are categorically “violent crimes.” Eberhart, supra at 816. Unlike the Federal ACCA, under Massachusetts law a defendant is entitled to a jury trial to determine whether a sentence enhancement for being an armed career criminal is applicable.10 See id. The evidence presented at that trial “must suffice to prove, beyond a reasonable doubt, that the [previous] crime for which [the defendant] was convicted was a violent crime.” Id.
Applying this analysis, in Eberhart, supra at 818, we concluded that only two of the three variants of common-law battery encompassed by
The determination that assault and battery is not categorically a “violent crime” leads to the conclusion that assault and battery upon a public employee also is not a violent crime. The offense of assault and battery upon a public employee,
These differences, however, do not change the underlying acts that constitute an assault and battery. Like the general crime of assault and battery, assault and battery upon a public employee can be committed through a harmful battery, a reckless battery, or an offensive battery. Therefore, the same reasoning underlying our conclusion that assault and battery is not a violent crime, see Eberhart, supra at 818-819, leads to the conclusion that assault and battery on a public employee is not categorically a violent
Pointing to cases from Federal courts and the Appeals Court that have concluded that assault and battery on a police officer (not public employee) is categorically a violent crime under the now-defunct residual clause, see, e.g., United States v. Dancy, 640 F.3d 455, 469-470 (1st Cir.), cert. denied, 132 S. Ct. 564 (2011), and Commonwealth v. Colon, supra at 22-23, the Commonwealth urges us to conclude that the offense is categorically a violent crime under the force clause. We decline to adopt this approach.
More importantly, however, we do not think that the reasoning employed by courts that have concluded that assault and battery against a public employee, when committed against a police officer, constitutes a violent crime under the residual clause is applicable to the inquiry under the force clause. For instance, in Commonwealth v. Colon, supra at 22, the Appeals Court concluded that an assault and battery committed against a police officer, even if of the offensive battery type, is a violent crime under the residual clause because “even a minor dispute with a civilian distracts from the officer‘s duties” and “creates a public risk.” This line of reasoning is not relevant to our inquiry in light of the conclusion we adopt today concerning the constitutional infirmity of the residual clause. The question we must answer is whether assault and battery upon a public employee qualifies as a “violent crime” under the force clause. For the reasons set forth with respect to our analysis of assault and battery, we conclude that it does not. Consequently, because the Commonwealth failed to introduce evidence other than the certified copies of the defendant‘s convictions to support the charge under the ACCA, the evidence was insufficient for a conviction, where the predicate offense was assault and battery against a public official.
Finally, we decline the Commonwealth‘s request that we remand the matter so that the Commonwealth may present at a second trial evidence sufficient to establish that the defendant violated the ACCA. The prohibition against double jeopardy
5. Conclusion. The judgment of conviction of assault by means of a dangerous weapon against Joao Pereira,
So ordered.
Notes
“any crime punishable by imprisonment for a term exceeding one year ... that —
“(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
“(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”