Opinion
13-P-841
01-16-2015
COMMONWEALTH v. ENRIQUE R. DIAZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from the denial of the defendant's second motion for a new trial. The defendant was convicted in 2004 of assault by means of a dangerous weapon, armed assault with intent to murder, possession of a firearm in the commission of a felony, assault and battery by a means of a dangerous weapon, carrying a firearm without authority, and intimidation of a witness in connection with the shooting of Nathaniel Conway on December 20, 2002. After the jury returned its verdict, the defendant entered a plea of guilty to an indictment charging him with being an armed career felon. Those convictions and the denial of the defendant's motion for a new trial were affirmed on appeal. See Commonwealth v. Diaz, 71 Mass. App. Ct. 1114 (2008).
The facts of the case are set forth in our earlier order and need not be repeated here.
In 2013, the defendant filed a second motion for a new trial in which he argued, among other claims, that his convictions of possession of a firearm during the commission of a felony (which we occasionally refer to as the "firearm use" conviction for ease of reference) and armed assault with intent to murder are duplicative. The judge, who was also the trial judge, denied the new trial motion on this ground. On appeal, the defendant contends that the judge erred and also asserts for the first time that the firearm use conviction should be vacated because the indictment, which did not specify a predicate felony, failed to allege a crime. We affirm.
1. Duplicative convictions. The defendant concedes that he waived the issue of duplicative convictions as a result of his failure to timely raise the issue. Therefore, the standard of review is whether a substantial risk of a miscarriage of justice occurred. Commonwealth v. Randolph, 438 Mass. 290, 293-294 (2002).
There can be no dispute that convictions of armed assault with intent to murder under the second sentence of G. L. c. 265, § 18(b), and of "firearm use" are duplicative as the elements of the former are subsumed within the latter. We agree with the defendant that his indictment for armed assault with intent to murder, which specified that the defendant was "armed with a dangerous weapon, to wit: a firearm" could not serve as predicate felony for the charge of possession of a firearm during the commission of a felony. The judge concluded, however, that a new trial was not warranted because the jury also convicted the defendant of the felonies of assault and battery by means of a dangerous weapon and intimidation of a witness. The judge reasoned that because the offense of intimidation of a witness and assault and battery by means of a dangerous weapon are felonies that could qualify as the predicate for the firearm use conviction, there was no substantial risk of a miscarriage of justice. We agree.
We are not persuaded by the defendant's argument that the continuous offense doctrine, see Commonwealth v. Horne, 466 Mass. 440, 450 (2013), renders the convictions of possession of a firearm during the commission of a felony and intimidation of a witness duplicative. The defendant was not, as he claims, punished twice for "the same continuous possession of a firearm" simply because the Commonwealth relied on the same firearm to prove the armed assault with intent to murder conviction which carries a statutory enhancement for being "armed" with a weapon. The Federal cases upon which the defendant relies in support of his position are distinguishable. In each of those cases the issue was whether a defendant who commits two or more predicate offenses with the use of one firearm may only be convicted of one single violation of 18 U.S. C. § 924(c), the cognate Federal statute upon which the Massachusetts statute is modelled. As the defendant points out, many Federal courts (and some State appellate courts) have rejected the notion that multiple predicate offenses can result in multiple firearm use convictions where only one firearm is used. However, the analysis employed in those cases is not applicable here for two reasons. First, while the defendant was convicted of multiple felonies, he was convicted of only one count of possession of a firearm during the commission of a felony. Second, even though the Commonwealth relied on the same firearm to convict the defendant of armed assault with intent to murder and possession of a firearm during the commission of a felony, the underlying felony (or felonies) is a separate and distinct crime for which the Legislature intended to impose an additional sentence. We discern no infringement to the double jeorpardy clause in these circumstances.
We note that the judge did not explicitly rule that the convictions are duplicative. Rather, he ruled that the issue had been waived, but went on to explain that even if the issue had been preserved, there was no substantial risk of a miscarriage of justice.
To decide whether there was a substantial risk of a miscarriage of justice requires consideration of four related questions:
"(1) Was there error? . . .(2) Was the defendant prejudiced by the error? . . . (3) Considering the error in the context of the entire trial, would it be reasonable to conclude that the error materially influenced the verdict? . . . (4) May we infer from counsel's failure to object or raise a claim of error at an earlier date was not a reasonable tactical decision? . . . Only if the answer to all four questions is 'yes' may we grant relief."Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002). The answer to the first question is "yes." Two errors occurred at trial. First, in his closing argument, the prosecutor informed the jury that the armed assault with intent to murder qualified as a predicate felony for the crime of possession of a firearm during the commission of a felony. As noted earlier, this theory of conviction would be duplicative. Second, when the judge instructed the jury on the elements of the offense of possession of a firearm during the commission of a felony, he explained that the offenses of armed assault with intent to murder, assault and battery by means of a dangerous weapon, and intimidation of a witness were felonies, any of which could serve as the predicate for a "firearm use" conviction. This instruction was partially incorrect because, as noted, the armed assault with intent to murder indictment under the second sentence of G. L. c 265, § 18(b) could not serve as a predicate felony for the "firearm use" indictment.
Despite these errors, we agree with the judge's conclusion that no substantial risk of a miscarriage of justice occurred because the defendant suffered no prejudice. The fact remains that the defendant was convicted of two additional qualifying felonies which were affirmed on appeal. Had the judge instructed the jury correctly and, assuming as we must, that the jury would have followed the correct instructions, the defendant necessarily would have been found guilty of possessing a firearm during the commission of a felony. More to the point, it is not reasonable to conclude that the errors "materially influenced the verdict" because it is not reasonable to assume, as the defendant suggests, that the jury would disregard the law or return inconsistent verdicts. Commonwealth v. Randolph, 438 Mass. at 298. While either scenario is possible, neither is probable and a conclusion that justice has miscarried cannot be based on speculation.
It matters not, as the defendant argues, that because this was a general verdict we cannot ascertain which of the three felonies the jury relied on in returning its verdict. Clearly, had the defendant been acquitted of one of the two remaining felonies our analysis -- and the result -- would be different.
In sum, the answer to the second and third questions is "no." Therefore, the judge did not abuse his discretion in denying the new trial motion.
2. The indictment. We now turn to the question whether the indictment charging the defendant with possession of a firearm during the commission of a felony is defective. The indictment followed the statutory language of G. L. c. 265, § 18(b) and reads in pertinent part as follows: "Enrique R. Diaz . . . . . did, while committing an offense which may be punishable by imprisonment in the state prison, have in his possession or under his control a firearm in violation of Massachusetts General laws, Chapter 265, section 18B."
As the defendant correctly points out, the indictment does not specifically identify the underlying felony. This did not render the indictment defective. "A complaint or indictment will not be dismissed . . . 'if the offense is charged with sufficient clarity to show a violation of law and to permit the defendant to know the nature of the accusation against him.'" Commonwealth v. Canty, 466 Mass. 535, 547 (2013), quoting from Commonwealth v. Fernandes, 430 Mass. 517, 519-520 (1999). The indictment at issue provided fair notice of the crime charged. Further, as we recently observed in Commonwealth v. Shippee, 83 Mass. 659, 665 (2013), "[a]n indictment shall not be dismissed or be considered defective or insufficient . . . for lack of any description or information which might be obtained by requiring a bill of particulars." Ibid., quoting from Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 129 (2010). Here, as in Shippee, no bill of particulars was requested. Therefore, no relief will be granted on appeal. Id. at 666.
Order denying motion for a new trial affirmed.
By the Court (Grasso, Vuono & Rubin, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: January 16, 2015.