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Commonwealth v. Taylor

Appeals Court of Massachusetts, Norfolk

September 26, 2019

COMMONWEALTH
v.
KEYSHAUN TAYLOR.

          Heard: April 12, 2019.

          Firearms. Judicial Estoppel. Practice, Criminal, Double jeopardy, Required finding. Constitutional Law, Double jeopardy. Complaint received and sworn to in the Quincy Division of the District Court Department on December 26, 2017.

         Motions to dismiss and for reconsideration were heard by Diane E. Moriarty, J., and the case was reported by her.

          Seena A. Pidani for the defendant.

          Susanne M. O'Neil, Assistant District Attorney, for the Commonwealth.

          Present: Vuono, Wolohojian, & Hand, JJ.

          HAND, J.

         This case was reported to us by a judge of the District Court (motion judge) pursuant to Mass. R. Crim. P. 34, as amended, 442 Mass. 1501 (2004). As we explain in greater detail below, a different District Court judge (trial judge) entered a required finding of not guilty on a complaint charging the defendant with carrying a loaded firearm in violation of G. L. c. 269, § 10 (n); the defendant was later charged in a second complaint alleging a violation of G. L. c. 269, § 10 (a.), carrying a firearm without a license. The second complaint was dismissed on double jeopardy grounds, [1] and the Commonwealth moved for reconsideration. After a hearing, the motion judge took the matter under advisement. She subsequently issued the rule 34 report, which included the procedural history of the two complaints and rulings of law outlining the judge's revised legal conclusion that the Commonwealth could proceed with its prosecution on the second complaint.[2]

         Background.

         On April 4, 2017, the defendant was arraigned on a single count of carrying a loaded firearm in violation of G. L. c. 269, § 10 (n) (first complaint) .[3]'[4]

         A jury trial on the first complaint was held on December 14, 2017. At the close of the Commonwealth's evidence, the defendant moved for a required finding of not guilty, arguing that without an accompanying charge of one of the predicate offenses to § 10 (n), either G. L. c. 269, § 10 (a.) (carrying a firearm without a license), or G. L. c. 269, § 10 (c0 (possession of a machine gun or sawed-off shotgun), "it would be impossible" for the Commonwealth to prove a violation of § 10 (n). In response, the Commonwealth asked the trial judge to "conform to the evidence" by instructing the jury on a charge of violation of G. L. c. 269, § 10 (a.) .[5] After that request was denied, the Commonwealth moved to amend the complaint. Defense counsel objected to any amendment on the ground that § 10 (a.) is not a lesser included offense of § 10 (n), and argued that the "only proper avenue" was for the trial judge to enter a required finding of not guilty.[6] Defense counsel noted that if the Commonwealth later wished to bring a new complaint including a § 10 (a.) charge, it was "certainly free to do so, but [the defendant's] argument would be that there are double jeopardy implications because we have now tried the matter." The trial judge allowed the defendant's motion for a required finding of not guilty on the charge of violating G. L. c. 269, § 10 (n).[7] There is no dispute that the judge allowed the motion for a required finding of not guilty based on the Commonwealth's charging error, and not because the evidence was insufficient to prove a violation of either § 10 (n) or § 10 (a.) .

         Within a few weeks of the conclusion of the defendant's trial, the Commonwealth obtained a second complaint, which charged the defendant with one count of violating G. L. c. 269, § 10 (a.), carrying a firearm without a license, based on the same conduct underlying the first complaint. In lieu of bail, the defendant was released subject to pretrial electronic monitoring and a curfew. Initially, the motion judge allowed the defendant's motion to dismiss the second complaint on the basis that double jeopardy precluded the Commonwealth from charging the defendant with violating § 10 (a.) in light of the not guilty finding that had entered on the violation of § 10 (n) charged in the first complaint. The Commonwealth moved for reconsideration. Taking the motion under advisement, the judge prepared a revised legal analysis concluding that in the circumstances of this case, the doctrine of judicial estoppel applied, defeating the defendant's protection against double jeopardy.[8] The judge thereupon reported the following four questions to us:

"1. Is G. L. c. 269, § 10 (n)[, ] a freestanding crime?
"2. Is G. L. c. 269, § 10 (a.) [, ] a lesser included offense of G. L. c. 269, § 10 (n) under Morey v. Commonwealth, 108 Mass. 433 (1871)?
"3. In the context of double jeopardy, is the doctrine of judicial estoppel applicable as ...

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