A Superior Court jury convicted the defendant of assault and battery by means of a dangerous weapon, G. L. c. 265, § 15B(¿); carrying a firearm without a license, G. L. c. 269, § 10(a); and possession of ammunition without a firearm identification card (FID card), G. L. c. 269, § 10(h). In a second trial, another Superior Court jury convicted him on one count of being an armed career criminal based on three predicate offenses, G. L. c. 269, § 10G(c), as a sentence enhancement on his conviction under G. L. c. 269, § 10(h). The defendant appeals. We find no error in his convictions from the first trial.
As to the second trial, the defendant’s appeal raises the issue whether a certified record of conviction constitutes sufficient evidence that the defendant was convicted of a predicate “violent crime,” see G. L. c. 140, § 121, as appearing in St. 1998, c. 180, § 8, for purposes of the armed career criminal sentencing enhancements, G. L. c. 269, § 10G(a)-(c). We hold that a certified record of conviction is sufficient when the predicate offense is assault and battery on a police officer (ABPO), G. L. c. 265, § 13D (two of the predicate offenses here), but that it is not when the predicate offense is assault and battery, G. L. c. 265, § 13A(a), which was one of the predicate offenses here. Accordingly, we reverse the defendant’s conviction under G. L. c. 269, § 10G(c), as an armed career criminal based on three predicate violent crimes and remand for his resentencing as an armed career criminal based on two predicate violent crimes, G. L. c. 269, § 10G(¿>).
1. Background. We recite the trial evidence related to the defendant’s claims of error on appeal.
a. The first trial. In April, 2006, the defendant was tried on three indictments charging assault and battery by means of a dangerous weapon, carrying a firearm without a license, and possession of ammunition without an FID card. The events giving
State troopers responded. They identified the vehicle in which the defendant was riding; stopped it; ordered its occupants, including the defendant, out; and arrested them. At first finding no weapons, the troopers walked along the road on which the vehicle had been stopped and found a firearm and a holster. The two occupants of the other car arrived for a showup and positively identified the defendant and his companions.
The defendant gave a statement to the State police. In this statement, he asserted that he and his companions had been shot at and that the driver of the car returned fire in self-defense. He confessed to throwing the firearm out the car window when he saw the troopers. Subsequently, he also confessed to being the one who fired at the other car.
Witnesses testified to the above facts at the first trial. The defendant neither testified nor presented evidence. His attorney, in his opening statement, put forth a self-defense theory. On cross-examination defense counsel questioned the driver of the other car, Hugo Paez, about his hobby of working with cars and whether he raced cars. Paez replied, “No, I don’t race. I have a perfect driving record.” The following day, defense counsel proffered a copy of Paez’s record of driving violations and requested that it be admitted for purposes of impeaching him by contradiction. The judge excluded the driving record as collateral to the issue of self-defense and insufficiently probative of Paez’s credibility or bias.
After hearing standard instructions, the jury convicted the defendant of all three charges. The defendant noticed his appeal from these convictions in May, 2006.
b. The second trial. In April, 2007, the defendant was tried before a different jury, see G. L. c. 278, § 11 A, on the count of the indictment for carrying a firearm without a license (G. L. c. 265, § 10[a\) that sought an enhanced sentence under G. L. c. 269, § 10G(c), for being an armed career criminal who had committed three prior violent crimes. Several probation department officials testified regarding the defendant’s criminal history,
The defendant requested that the judge strike his 2004 assault and battery conviction from evidence. He argued that, because the conviction resulted from a guilty plea to a complaint which originally charged him with armed robbery but was subsequently amended to charge assault and battery and attempted larceny
The defendant moved for a required finding of not guilty, arguing that the Commonwealth’s failure to introduce any evidence of the circumstances underlying his three convictions meant that there was insufficient evidence to show that he had been convicted of three “violent crimes.” The judge denied the motion, reasoning that assault and battery always has, as an element, at least minimal physical force, bringing it within the relevant statutory definition of “violent crime.” The judge also announced his intention to instruct according to this understanding, and the defendant objected.
The judge instructed, inter alla, that “[a]s a matter of law, the definition of violent crime includes the crimes of assault and battery on a police officer and assault and battery . . . .” The jury found the defendant guilty on the armed career criminal count of the indictment. The defendant noticed his appeal from this conviction on April 27, 2007.
c. Appeal. In this consolidated appeal, the defendant argues (1) insufficient evidence of, and erroneous jury instructions about, statutorily required predicate offenses in the second trial; (2) erroneous admission of one of the defendant’s convictions as evidence at the second trial; and (3) erroneous exclusion of evidence in the first trial.
a. The Massachusetts and Federal armed career criminal acts. In order to sustain a conviction under the Massachusetts armed career criminal act (Massachusetts ACCA), G. L. c. 269, § 10G(a)-(c), the Commonwealth must prove that the defendant has been previously convicted of at least one “violent crime.”
“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 or a deadly weapon against the person of another; (ii) is burglary, extortion, arson or kidnapping; (iii) involves the use of explosives; or (iv) otherwise involves conduct that presents a serious risk of physical injury to another.”
G. L. c. 140, § 121, as appearing in St. 1998, c. 180, § 8. See G. L. c. 269, § 10G(e). The Massachusetts ACCA therefore has three components: (1) the “physical force” or “force” clause; (2) the enumerated crimes provisions; and (3) the residual clause.
The Massachusetts ACCA’s language largely replicates the Federal armed career criminal act (Federal ACCA), 18 U.S.C. § 924(e) (2006). Commonwealth v. Ware,
“any crime punishable by imprisonment for a term exceed*13 ing 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 use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .”
The term “crime punishable by imprisonment for a term exceeding one year” is further defined to include certain State law misdemeanors. See 18 U.S.C. § 921(a)(20)(B) (2006); Logan v. United States,
The Federal ACCA definition of “violent felony”
When a Massachusetts statute “tracks [a] Federal statute, we have looked to the Federal case law for guidance in interpreting” our cognate statute. Commonwealth v. One 1986 Volkswagen GTI Auto.,
b. Massachusetts ACCA procedure. Although the Massachusetts ACCA largely replicates the Federal ACCA in its language, we pause to note one meaningful practical difference: a defendant facing sentence enhancement under the Massachusetts ACCA is entitled to a jury trial. See G. L. c. 278, § 11 A. In contrast, a defendant facing the Federal ACCA enhancement is not. See Shepard v. United States,
c. The “categorical approach” and the “modified categorical approach.” Under the Federal ACCA, 18 U.S.C. §§ 921(20) and 924(e), sentencing judges use the “categorical approach” to determine whether a prior conviction qualifies as a predicate offense. See, e.g., Taylor v. United States,
The Supreme Judicial Court followed this approach in interpreting similar language in the State pretrial detention statute, G. L. c. 276, § 58A.
The Young case, however, involved a statute that defined a predicate offense on the basis of the element or elements of the defense or “the nature” of the offense, which the court interpreted as “ focus [ing] on the elements of the crime rather than the particular facts underlying a complaint or indictment,” and did not consider the application of the categorical approach to offenses that may be based on different elements, that is, whose statutory definitions do not conclusively settle the issue whether the offense qualifies as a predicate offense. See id. at 713-715 & n.9. Absent controlling authority on this question under Massachusetts law, we look to Federal law for guidance.
We find this authority persuasive. We conclude that, for Massachusetts ACCA purposes, in the narrow range of cases where the statutory or common-law definition of a prior offense does not conclusively bring it within the category of “violent crimes,” the familiar sufficiency of the evidence standard mandates this modified categorical approach. See Commonwealth v. Latimore,
3. Assault and battery, ABPO, and the Massachusetts ACCA. We turn now to the defendant’s conviction on the armed career criminal enhancement charge based on three predicate convictions, one of assault and battery and two of ABPO. The defendant argues that there was insufficient evidence to sustain his armed career criminal conviction because the Commonwealth presented no evidence that his prior convictions of assault and battery and ABPO met the statutory definition of “violent crime.” On the same basis, he argues that the judge erroneously instructed that the statutory definition of “violent crime” included his prior convictions of assault and battery and ABPO as matter of law. We agree with the defendant as to his assault and battery conviction. We agree with the judge as to the ABPO convictions.
a. Assault and battery. “Assault and battery is a common law crime now set forth in G. L. c. 265, § 13A. . . . Because there are harmful batteries and offensive batteries, there is a bifurcation in the law of battery.” Commonwealth v. Burke,
We conclude that, while harmful battery and reckless battery
i. The enumerated crimes. The Massachusetts ACCA expressly enumerates, as predicate offenses, “burglary, extortion, arson or kidnapping; ... [or any offense that] involves the use of explosives.” G. L. c. 140, § 121. None of the crimes defined by G. L. c. 265, § 13A(a), falls into these classifications, so an assault and battery conviction does not qualify under these subsections of the definition of violent crime in G. L. c. 140, § 121, as a Massachusetts ACCA predicate offense.
ii. The force clause. A crime qualifies as a predicate offense under the Massachusetts ACCA if it is “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 or a deadly weapon against the person of another.” G. L. c. 140, § 121. We have not previously applied this language to assault and battery, so we look to the Federal interpretation of the nearly identical language in the Federal ACCA for guidance.
In Johnson v. United States,
While Johnson interprets the Federal ACCA, we find its reasoning persuasive in interpreting the Massachusetts statute. See part 2.a, supra. We therefore hold that, in order to qualify as a “violent crime” as defined in G. L. c. 140, § 121, the relevant crime must include, as an element, violent or substantial force capable of causing pain or injury.
We find Johnson persuasive because of its application of
The Commonwealth urges that we interpret “physical force” broadly so as to include any touching, no matter how slight. Even were we persuaded that the Commonwealth’s interpretation is permissible, we would reach the same result. At best, the Commonwealth’s proffered interpretation is just as plausible as the interpretation we adopt here. If two readings of a statute are equally plausible, the statute is ambiguous. It is well-established that “we cannot interpret an ambiguous statute in a manner that disadvantages a criminal defendant.” Commonwealth v. Hamilton,
Accordingly, we conclude that the Legislature, by using “violent” to describe the predicate offenses necessary for a Massachusetts ACCA enhancement, intended to require the “element [of] the use ... of physical force” necessary for such offenses to include only substantial physical force capable of causing pain or injury. Applying this definition to the crimes punishable by G. L. c. 265, § 13A(o), we conclude that, while
Harmful battery is “[a]ny touching ‘with such violence that bodily harm is likely to result.’ ” Commonwealth v. Burke, 390 Mass, at 482, quoting from Commonwealth v. Farrell,
Reckless battery is a “wilful, wanton, and reckless act [resulting] in personal injury to another.” Commonwealth v. Boyd,
But offensive battery, defined as “an offensive touching” which is an “affront to the victim’s personal integrity,” Commonwealth v. Burke, 390 Mass, at 483, does not have, as an element, the use of “physical force” as we have defined it.
iii. The residual clause.
The Federal courts have applied this language to a wide variety of crimes. See, e.g., James v. United States,
The enumerated crimes provide guidance as to the level of risk required in order to constitute a predicate offense. Id. at 2273, 2276. “[T]he proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a
Offensive battery
b. ABPO. In addition to the elements required for assault and battery, conviction of ABPO requires proof “that the offense be committed on a ‘public employee who was engaged in the performance of his duty at the time’ of the assault and battery.” Commonwealth v. Correia,
The residual clause, as discussed above, qualifies an offense as a “violent crime” for purposes of the Massachusetts ACCA if the offense “otherwise involves conduct that presents a serious risk of physical injury to another.” G. L. c. 140, § 121. We again focus on the ordinary case of ABPO. To be convicted of ABPO, the perpetrator must know that his victim was a law enforcement officer, and the officer must be on duty. See Commonwealth v. Correia,
We find persuasive the reasoning of the United States Court of Appeals for the First Circuit in United States v. Dancy,
Moreover, we agree with the Dancy court’s conclusion that “in the ABPO context purposeful conduct is the norm, and . . . the crime of ABPO ‘nearly always involves the intentional striking of a police officer.’ ” Id. at 469, quoting from United
Accordingly, we conclude that the additional elements of ABPO, in the ordinary case, present a sufficient additional risk of serious physical injury to bring the offense within the meaning of a “violent crime” as defined by the residual clause. We therefore conclude that ABPO qualifies as a Massachusetts ACCA predicate offense as matter of law.
c. The Commonwealth’s proof. Given our interpretation of the Massachusetts ACCA as applied to assault and battery and ABPO, the Commonwealth was required to demonstrate that the defendant’s assault and battery conviction resulted from a harmful or reckless battery, not from offensive battery, in order to show that the assault and battery conviction was a “violent crime.” The Commonwealth could rely solely on a certified record of conviction to demonstrate that ABPO was “violent crime” for purposes of the Massachusetts ACCA.
Here, the Commonwealth offered only certified records of conviction identifying the defendant’s predicate offenses as assault and battery and ABPO. The Commonwealth presented no extrinsic evidence to indicate whether the convictions were based on harmful, reckless, or offensive battery. Nor did the Commonwealth present evidence of the underlying facts of the defendant’s convictions from these matters. Given our interpretation of the definition of “violent crime” in G. L. c. 140, § 121, for purposes of the Massachusetts ACCA, the Commonwealth’s evidence, viewed under the standard of Commonwealth v. Latimore, 378 Mass, at 676-677, was insufficient to sustain the armed career criminal conviction based on three predicate offenses because there was insufficient proof that the defendant’s assault and battery conviction was based on harmful or reckless battery.
Therefore, on the count of the indictment for sentence enhancement under G. L. c. 269, § 10G(c), we reverse the judgment, set aside the verdict, and remand for resentencing under the armed career criminal enhancement provision based on two predicate “violent crimes,” G. L. c. 269, § 10G(¿). See Commonwealth v. Kastner,
4. Other claims. We briefly address the defendant’s two other claims of error. Neither has merit.
a. Evidence of improper conviction. The defendant argues that the judge erroneously denied his request to strike his 2003 assault and battery conviction from evidence because it resulted from a guilty plea to a procedurally defective amended complaint. There was no error.
The defendant, having never challenged that conviction on direct appeal or pursuant to Mass.R.Crim.P. 30(b), as appearing in
b. Evidentiary ruling. The defendant argues that the judge’s decision to exclude the certified driving record of the driver of the other car, Paez, from evidence impermissibly intruded on his right to cross-examine Paez to demonstrate lack of credibility and bias. The defendant has the burden to demonstrate that the judge abused his discretion in restricting the defendant’s right to cross-examination. Commonwealth v. Avalos,
The defendant has not met this burden. We conclude that the
5. Conclusion. On the count of the indictment for armed career criminal enhancement of the sentence based on three predicate violent crimes, G. L. c. 269, § 10G(c), the judgment is reversed, the verdict is set aside insofar as it finds the defendant had committed three prior violent crimes, and the matter is remanded for resentencing on the lesser included offense of an armed career criminal enhancement based on two predicate violent crimes, G. L. c. 269, § 10G(Z?). The remaining judgments are affirmed.
So ordered.
Notes
The Commonwealth voluntarily dismissed the attempted larceny charge.
As relevant to this prosecution, the Massachusetts ACCA, G. L. c. 269, § 10G(c), inserted by St. 1998, c. 180, § 71, provides, “Whoever, having been previously convicted of three violent crimes . . . arising from separate incidences, violates the provisions of said paragraph (a), (c), or (h) of . . . section 10 shall be punished by imprisonment in the state prison for not less than 15 years nor more than 20 years” (emphasis supplied). The provisions for sentence enhancement based on one predicate offense, G. L. c. 269, § lOG(a), and two predicate offenses, G. L. c. 269, § 10G(6), also refer, respectively, to a predicate “violent crime” or “violent crimes.”
Other Federal statutes define predicate offenses using language similar to the “has, as an element, the use, attempted use, or threatened use of physical force” language of the Federal ACCA. See 18 U.S.C. § 16(a) (2006) (defining “crime of violence”); 18 U.S.C. § 921(a)(33) (2006) (defining “misdemeanor crime of domestic violence”).
The Commonwealth argues that the Legislature’s decision to deviate from the language of the Federal ACCA by using “violent crime” in place of “violent felony” alters the analysis of qualifying predicate offenses. Compare 18 U.S.C. § 924(e) with G. L. c. 269, § 10G. We are not persuaded. Like the Massachusetts ACCA, the Federal ACCA is not limited to crimes formally defined as felonies; Congress chose to define “violent felony” to include State law misdemeanors punishable by more than two years’ imprisonment. 18 U.S.C. § 921(a)(20)(B) (2006) (defining “crime punishable by imprisonment for a term exceeding one year” as used in 18 U.S.C. § 924[e][2][B]). See Logan v. United. States,
The Commonwealth urges that we consider only Federal authority as it existed at the time of the enactment of the Massachusetts ACCA. We see no reason so to limit our consideration of persuasive authority. See Scaccia v. State Ethics Commn.,
This point is not entirely free from doubt. Compare Apprendi v. New Jersey,
At the time the defendants in Young were charged, G. L. c. 276, § 58A, as amended by St. 1996, c. 393, § 5, provided, in relevant part, “The [C]ommonwealth may move ... for an order of pretrial detention or release on conditions for a felony offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person of another, or any other felony that by its nature involves a substantial risk that physical force against the person of another may result. . . .” The November, 2010, amendment to G. L. c. 276, § 58A, did not alter this language. See St. 2010, c. 256, § 125.
We need not detail all the possible forms that this evidence might take. Because the defendant is entitled to a jury trial on the count seeking an armed
“An assault is an offer or attempt to do a battery. See Commonwealth v. Shaffer, 361 Mass. 508, 515 (1975). Every battery includes an assault. Commonwealth v. Stratton,
The fact that “[e]very battery includes an assault,” Commonwealth v. Burke, supra at 482, does not alter the result. Because an offensive battery does not have, as an element, the use of “physical force” as we have interpreted it, we conclude that an assault based on “an offer or attempt to do” an offensive battery, ibid., concomitantly does not have, as an element, “attempted use” or “threatened use” of “physical force” within the meaning of G. L. c. 140, § 121.
Though we apply the Massachusetts ACCA to assault and battery to reach this conclusion, we emphasize that our decision works no change in the longstanding law of assault and battery. See, e.g., Commonwealth v. McCan,
“Even before Johnson, other Federal courts reached this same conclusion when confronted with similar State criminal statutes. See, e.g., Flores v. Ashcroft,
“Neither party raised the applicability of the residual clause below, and neither party argues its applicability on appeal. Nevertheless, “a reviewing court is free to rely on an alternative legal theory” if supported by the record and the findings. Commonwealth v. Va Meng Joe,
The proper standard has generated considerable dispute, and at least one current member of the Supreme Court of the United States has expressed the view that the residual clause is unconstitutionally vague. See, e.g., Sykes v. United States,
Because we conclude that harmful battery and reckless battery qualify as “violent crimes” under the force clause, we need not consider whether they qualify under the residual clause.
Of course, “[o]ne can always hypothesize unusual cases in which” an ordinarily nonviolent crime does pose a serious risk of injury. See James v. United States,
A conviction of ABPO based on an offensive battery (or an assault based on a threat or offer to commit an offensive battery) would not qualify under the force clause. See part 2.a.ii, supra. Again, the Commonwealth did not argue, at the second trial or in this appeal, that the defendant’s convictions qualified as predicate offenses under the residual clause. See note 13, supra.
SimiIarly, the judge’s instruction that assault and battery is, as matter of law, a “violent crime” was erroneous and prejudiced the defendant. See Commonwealth v. Flebotte,