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Commonwealth v. Robinson-Stewart

Superior Court of Massachusetts, Suffolk

June 15, 2016

Lovell Robinson-Stewart No. 133952


          Peter B. Krupp, Justice of the Superior Court.

         Facing firearms and ammunition charges, defendant Lovell Robinson-Stewart moves pursuant to Commonwealth v. McCarthy, 385 Mass. 160, 430 N.E.2d 1195 (1982), to dismiss the portions of the indictments that charge a sentencing enhancement under the Massachusetts armed career criminal act (" ACCA"), G.L.c. 269, § 10G.[1] He argues the Commonwealth failed to introduce sufficient evidence for the grand jury to conclude his prior convictions for assault and battery and for unarmed robbery constituted ACCA predicates. For the following reasons, the motion is ALLOWED .


         After the grand jury voted to indict defendant for unlawfully possessing firearms and ammunition on November 11, 2015, the Commonwealth presented evidence to the grand jury that defendant had the following two prior convictions: (1) a conviction on November 24, 2010 in the South Boston Division of the Boston Municipal Court for assault and battery; and (2) a conviction on June 3, 2011 in Suffolk Superior Court for unarmed robbery. With respect to the assault and battery conviction, the Commonwealth presented testimony that on January 29, 2010 defendant " grabb[ed] the collar of the victim, " " deliberately prevent[ing] that victim from pursuing individuals that had just robbed the victim on that day." The grand jury heard no additional information or evidence about the unarmed robbery conviction. The Commonwealth did not introduce a police report, plea colloquy, trial transcript, or stipulation of facts regarding either of the prior convictions.

         Defendant moves to dismiss the ACCA enhancement. He argues the Commonwealth failed to present evidence that the assault and battery was of a " violent, " and not simply an " offensive, " character; and failed to present evidence that the crime of unarmed robbery was committed in a manner so as to constitute a " violent crime" within the meaning of the ACCA.


         I. The Armed Career Criminal Act

         The ACCA provides a staircase of mandatory minimum and maximum punishments for certain weapons-related offenses depending on the offender's prior criminal record.[2] A defendant convicted of a first offense of unlawful possession of a firearm under G.L.c. 269, § 10(h), faces a maximum penalty of two years in the house of correction (" HOC") and no mandatory minimum sentence. See G.L.c. 269, § 10(h). The same offense committed after a person incurs two prior convictions for " a violent crime" or " a serious drug offense" (" an ACCA-predicate conviction"), or one of each, carries a 10-year mandatory minimum and up to 15 years in state prison (" SP"). The following chart outlines the penalties provided under the applicable statutes, including the ACCA, for a violation of G.L.c. 269, § 10(h):

         Number of ACCA-Predicate Convictions




         Three or



         2 yrs. HOC

         15 yrs. SP

         15 yrs. SP

         20 yrs.


         Mandatory minimum:


         3 yrs. SP

         10 yrs. SP

         15 yrs.


See G.L.c. 269, § § 10(h) and 10G(a)-(c).[3]

         As is relevant here, the phrase " violent crime" is defined as " 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; (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. See G.L.c. 269, § 10G(e). Only the first clause of this definition is in play in this case.[4] To qualify as a prior conviction for a violent crime under the first clause, " the relevant crime must include, as an element, " the use, or attempted or threatened use, of " violent or substantial force capable of causing pain or injury." Commonwealth v. Colon (" Colon "), 81 Mass.App.Ct. 8, 18, 958 N.E.2d 56 (2011).[5] See also Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (construing the elements clause of the definition of " violent felony" in the federal ACCA, 18 U.S.C. § 924(e)(2)(B)(i), to require the use, or attempted or threatened use, of " violent force--that is, force capable of causing physical pain or injury to another person" (emphasis in original)).

         The Supreme Judicial Court has taken a modified categorical approach to determining whether a prior conviction meets the definition of " violent crime." Commonwealth v. Eberhart, 461 Mass. 809, 815, 965 N.E.2d 791 (2012). If all violations of a criminal statute meet the definition of " violent crime, " the issue is clear and a conviction for a violation of that particular statute will constitute an ACCA-predicate conviction. Colon, 81 Mass.App.Ct. at 15-16. In such a situation, " a certified record of conviction referencing [the] particular statute" will be sufficient to prove the defendant was convicted of a violent crime. Eberhart, 461 Mass. at 817. Where, however, the crime " encompasses several offenses at least one of which is not a 'violent crime, ' then . . . additional evidence" that the conviction was for a " violent crime" is required. Colon, 81 Mass.App.Ct. at 16-17 (emphasis in original). This does not involve relitigation of the prior conviction. Rather, " the Commonwealth need only prove which statutory or common-law definition was the basis of the prior conviction." Id. at 16, n.8 (emphasis in original).

         The Commonwealth does not dispute that the ACCA sentencing enhancement must be submitted to and found by the grand jury. See generally Commonwealth v. Miranda, 441 Mass. 783, 788, 809 N.E.2d 487 (2004) (approving amendment of indictment because " it did not alter the nature of the charges or the jeopardy the defendant faced " (emphasis added)); Bynum v. Commonwealth, 429 Mass. 705, 711 N.E.2d 138 (1999). In evaluating a McCarthy motion in this context, I must look to the evidence presented to the grand jury to determine if it allows the grand jury to find probable cause to believe defendant committed the " violent crime" predicates necessary to justify the ACCA enhancement. McCarthy, 385 Mass. at 163. " Probable cause to sustain an indictment is a decidedly low standard." Commonwealth v. Hanright, 466 Mass. 303, 311, 994 N.E.2d 363 (2013), citing Commonwealth v. Moran, 453 Mass. 880, 883-84, 906 N.E.2d 343 (2009), and Commonwealth v. Hason, 387 Mass. 169, 174, 439 N.E.2d 251 (1982). The evidence presented to the grand jury must, however, consist of " reasonably trustworthy information . . . sufficient to warrant a prudent man in believing, " Hanrigh ...

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