MEMORANDUM AND ORDER ON DEFENDANT'S REVISED
MOTION TO DISMISS ARMED CAREER CRIMINAL II
B. Krupp, Justice of the Superior Court.
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. 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 .
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.
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.
The Armed Career Criminal Act
ACCA provides a staircase of mandatory minimum and maximum
punishments for certain weapons-related offenses depending on
the offender's prior criminal record. 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):
of ACCA-Predicate Convictions
See G.L.c. 269, § § 10(h) and
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. 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). 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)).
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).
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 ...