Massachusetts Supreme Court Announces Requirement Prosecution Prove Defendant Knew Firearm Was Loaded Applies Retroactively
In the backseat of car driven by Lee W. Ashford, police recovered a pistol loaded with four rounds of ammunition in its magazine. Ashford denied knowledge of the gun. He was ultimately convicted of several offenses, including Loaded Firearm Possession and of a sentencing enhancement under the ACCA for two prior violent crimes – an armed robbery and the A & B w/weapon conviction. To prove the prior A & B conviction, the Commonwealth submitted a certified copy of his record of conviction.
Ashford filed a “motion for required findings of not guilty,” Mass. R. Crim. P. 25., arguing that his convictions must be vacated because the holding in Brown applies retroactively and arguing that since A & B w/weapon can be accomplished recklessly, it is not categorically a violent crime for ACCA purposes. Ashford’s motion was denied, and the SJC granted direct appeal.
The SJC observed that in Brown the court held that in order for a defendant to be convicted of Loaded Firearm Possession, the Commonwealth must prove the defendant knew the weapon was loaded. When interpreting a statute, the SJC gives its view of the statute’s meaning since the statute’s enactment. Eaton v. Federal Nat’l Mtge. Ass’n, 969 N.E.2d 1118 (Mass. 2012). If an interpretation is novel and not constitutionally required, the SJC has limited discretion to apply it only prospectively. Id.
But the interpretation in Brown was not novel. It was based on Commonwealth v. Johnson, 958 N.E.2d 25 (Mass. 2011), in which the SJC held that “[a]ll of the required elements of unlawful possession of ammunition [including the element of knowledge] were encompassed by the elements of unlawful possession of a loaded firearm.” It was a logical step that the element of knowledge required by the lesser included offense of unlawful possession of ammunition must be shown to convict a defendant of the greater offense of unlawful possession of a loaded firearm. The SJC concluded that because Brown’s interpretation of the statute applies to the statute since it was enacted, it is not a “new rule,” so it applies retroactively to cases on collateral review. Commonwealth v. Silvelo, 154 N.E.3d 904 (Mass. 2020).
In the instant case, the evidence showed only that the gun was recovered from Ashford’s vehicle. He denied ownership of the weapon. There was no evidence that he had knowledge it was loaded, e.g., no evidence that he had handled the gun or had it on his person. While a jury may infer knowledge from circumstantial evidence, Commonwealth v. Sullivan, 15 N.E.3d 690 (Mass. 2014), it is equally true that “no essential element of the crime may rest in surmise, conjecture, or guesswork.” Commonwealth v. Lopez, 140 N.E.3d 427 (Mass. 2020). Consequently, the SJC ruled that the evidence was insufficient to show “in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Brown.
Regarding the enhancement based on the prior A & B w/weapon conviction, the Massachusetts ACCA imposes harsher punishments predicated on prior convictions for violent crimes and defines “violent crime” as “any crime punishable by imprisonment 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 [“force clause”]; (ii) is burglary, extortion, arson, or kidnapping [“enumerated crimes clause”]; (iii) involves use of explosives; or (iv) otherwise involves conduct that presents a serious risk of physical injury to another [“residual clause”].” G.L. c. 140, § 121, Commonwealth v. Beal, 52 N.E.3d 998 (Mass. 2016). Because Massachusetts’s ACCA largely replicates 18 U.S.C. § 924(e) (“Federal ACCA”), the SJC “often look[s] to the federal courts for guidance on issues relating to the meaning and scope of this statute.” Beal.
In Johnson v. United States, 576 U.S. 591 (2015), the U.S. Supreme Court held that the residual clause of the Federal ACCA was unconstitutionally vague. In Beal, the SJC adopted Johnson’s reasoning and held the residual clause of the Massachusetts ACCA is unconstitutionally vague.
Then in Welch v. United States, 136 S. Ct. 1257 (2016), the U.S. Supreme Court held that Johnson applies retroactively to include cases on collateral review. The Welch Court reached this conclusion because “Johnson changed the substantive reach of the [Federal ACCA], altering the range of conduct or class of persons that the [act] punishes.” Welch, quoting Schriro v. Summerlin, 542 U.S. 348 (2004) (explaining Teague v. Lane, 469 U.S. 288 (1989)). The SJC had adopted Teague’s principles in Commonwealth v. Bray, 553 N.E.2d 538 (Mass. 1990), and following Welch’s reasoning, applied Beal’s ruling retroactively to Massachusetts’ ACCA.
This meant the residual clause of Massachusetts’ ACCA could not apply to Ashford, so his prior A & B w/weapon was a qualifying predicate only if it met the requirements of the force clause. This determination ordinarily required courts to employ the categorical approach, i.e., if the elements of the underlying crime of conviction could be satisfied only by violent conduct, it was categorically a qualifying predicate. Commonwealth v. Eberhart, 965 N.E.2d 791 (Mass. 2012). When a predicate offense is categorically violent, a certified copy of the prior conviction is sufficient to establish the defendant had committed a prior violent crime.
But if the statute under which the defendant had been convicted encompasses multiple crimes, not all of which are violent crimes, courts are to employ the “modified categorical approach.” Under that approach, the prosecution must submit evidence that would support a finding that a defendant’s particular conduct is a crime of violence within the meaning of Massachusetts’ ACCA. Commonwealth v. Wentworth, 128 N.E.3d 14 (Mass. 2019).
In Massachusetts, an A & B w/weapon can be committed intentionally or recklessly. Commonwealth v. Ford, 677 N.E.2d 1149 (Mass. 1997). In Wentworth, the court held that reckless assault and battery is a violent crime within the meaning of the ACCA. But that holding was predicated on a challenge to the amount of force used. Id. Ashford argued that A & B w/weapon based on reckless conduct is not categorically violent because the ACCA requires that the force be used against another person, meaning the force must be intentional. The SJC observed that in Leocal v. Ashcroft, 543 U.S. 1 (2004), the U.S. Supreme Court addressed precisely this issue and unanimously ruled that negligent conduct does not satisfy the “use of force” clause of 18 U.S.C. § 16 (which has language that is materially identical to the ACCA’s force clause). But the U.S. Supreme Court created ambiguity by later ruling reckless domestic assaults are qualifying predicates under the Federal ACCA. Voisine v. United States, 136 S. Ct. 2272 (2016). But the majority of post-Voisine decisions from the U.S. District Court in Massachusetts have ruled that A & B w/weapon is not categorically a violent crime under either the Federal or Massachusetts ACCA. United States v. Lattanzio, 232 F.Supp.3d 220 (D. Mass. 2017). And in United States v. Windley, 864 F.3d 36 (1st Cir. 2017), the court ruled that an A & B w/weapon is not a categorically violent crime under the Federal ACCA. The SJC was persuaded by these federal decisions. Further, the rule of lenity requires that the ambiguity created by Voisine be resolved in Ashford’s favor. United States v. Davis, 139 S. Ct. 2319 (2019).
Thus, the SJC held that A & B w/weapon is not categorically a violent crime. And in the instant case, the prosecutor failed to offer any evidence to support a finding that Ashford’s actions in the underlying A & B w/weapon satisfied the force clause of the ACCA as required by the modified categorical approach.
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Related legal case
Commonwealth v. Ashford
| Year | 2020 |
|---|---|
| Cite | 159 N.E.3d 125 (Mass. 2020) |
| Level | State Supreme Court |
| Conclusion | Bench Verdict |
