Opinion
14-P-298
08-05-2015
COMMONWEALTH v. GIROLD GRAND PIERRE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was indicted on two counts of carrying a firearm without a license, G. L. c. 269, § 10(a), the first count enhanced as a subsequent offense under G. L. c. 269, § 10(a), and the second count enhanced by the armed career criminal provision, G. L. c. 269, § 10(g); two counts of carrying a loaded firearm without a license, G. L. c. 269, § 10(n); and two counts of carrying ammunition without a firearm identification card, G. L. c. 269, § 10(h).
The defendant had a jury trial on all six counts, excluding the enhancements. After acquitting the defendant of both counts of carrying a loaded firearm, the jury were hung as to the rest of the charges, and the judge declared a mistrial with respect to the remaining four counts. The defendant then filed a motion to dismiss the counts charging him with illegally carrying ammunition, arguing collateral estoppel applied based on the jury's finding him not guilty of both counts of carrying a loaded firearm. That motion was denied.
At the second trial (before a second judge) on the four remaining counts (again, excluding the enhancements on two of them), the jury found the defendant guilty of all charges. The defendant then pleaded guilty to the enhancements on the counts charging him with carrying a firearm without a license. He received sentences of four years to four years and one day on the enhanced counts, to run concurrently, and two years of probation on the ammunition possession counts. The defendant filed a timely notice of appeal.
The defendant's first argument is that he is entitled to "dead time" credit for time spent in jail on a prior Boston Municipal Court case. In that case, on September 26, 2007, the defendant was found guilty of carrying a firearm without a license and disorderly conduct. He was sentenced to two and one-half years in the house of correction. On January 28, 2010, his convictions were reversed by the Appeals Court (which directed an entry of acquittal on the count charging disorderly conduct). See Commonwealth v. Grandpierre, 76 Mass. App. Ct. 1110 (2010). Apparently, shortly thereafter, the Commonwealth indicated its intention to retry the defendant. The instant crimes were committed on April 27, 2011. The defendant was retried in the Boston Municipal Court, on the original charge of carrying a firearm without a license, on June 14, 2012. In this retrial, he was acquitted. His argument now is that the time he served because of the Boston Municipal Court case, a case in which he was acquitted of all charges, amounts to dead time, for which he is entitled to credit on his instant sentences.
The defendant filed a motion for postconviction relief in the instant case six months after he was sentenced, arguing, as he does on appeal, that he was entitled to jail credit for dead time. The motion was denied by the second trial judge and the defendant filed a motion to reconsider, which was also denied. The defendant's appeal from the denial of the motion to reconsider was consolidated with the underlying appeal.
At first blush, his claim appears to present an interesting question left open by the Supreme Judicial Court's decision in Commonwealth v. Holmes, 469 Mass. 1010 (2014). In that decision the Supreme Judicial Court ruled that the prohibition on banked time -- giving credit for time already served, when the defendant knew at the time he committed the new offense that he had such credit in the "bank" -- outweighs concerns that "a prisoner should not be required to serve 'dead time' on a vacated sentence for which he otherwise would not receive credit." Id. at 1011.
In this case, the time served on the previous charges is not properly characterized as "banked time," at least in the traditional sense. At the time the defendant committed the instant offenses, the defendant knew two things regarding his prior sentence imposed by the Boston Municipal Court: (1) he was acquitted of one of the charges, for disorderly conduct; and (2) his conviction of carrying a firearm without a license was reversed. Although he knew he could be retried for the latter offense, he could not have known that he would be acquitted at the retrial; he did not know he had banked time.
Holmes included some further teaching on the proper use of dead time credits. The court concluded that as a general matter, dead time credits are not available for time previously served on unrelated crimes, that is, where "there was no substantive or temporal connection between the earlier sentence and new sentence." Id. at 1012. That describes the (lack of) relationship between the two sets of offenses at issue here.
The Holmes court, however, did suggest that there may be circumstances in which a criminal defendant could receive credit for time previously served on an unrelated crime: "where an earlier conviction had been vacated on the ground of actual innocence." Id. at 1012 n.3. In essence, the defendant argues that this case presents a circumstance in which he should receive dead time credit for time served on previous charges, not because he has been found actually innocent after conviction, but because he was acquitted altogether of both previous charges (once by order of the Appeals Court, once by a jury).
Whether dead time credit must be given in such a circumstance presents an interesting question, but we need not decide it here because ultimately, the question the defendant raises is not adequately presented on the record before us. The defendant failed to provide the second trial judge with sufficient supporting documents to verify his assertion that he was in custody for the challenged time period on the Boston Municipal Court charges. As the Commonwealth points out, the record here is inadequate for us to determine the length or dates of the sentence for which he seeks credit, and makes it impossible to find that he was not serving other valid sentences concurrent with the time he was incarcerated on the charges discussed.
In his reply brief, the defendant includes two documents that were not before the second trial judge when he ruled on the motion for postconviction relief. The Commonwealth has moved to strike. Even were we to consider them, however, they do not provide adequate information to allow a judge to make the finding described in the text above.
The defendant's remaining arguments are not availing. He argues that a detective's testimony went to the ultimate issue in the case, causing unfair prejudice to him and requiring reversal. The judge in this instance however instructed the jury to disregard that testimony and the defendant did not seek any further remedy. The question then is only whether testimony from the detective -- that he thought the defendant was armed -- created a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). In light of the judge's instruction to the jury, we conclude that there was no such substantial risk.
The defendant objects next to evidence about the statistical unlikelihood of recovering fingerprints from firearms, evidence relevant here because no fingerprints were found on the gun at issue. Whether viewed as a claim that this evidence was more unfairly prejudicial than probative, or that it interfered with the possibility of the defendant's raising a Bowden defense, see Commonwealth v. Bowden, 379 Mass. 472, 486 (1980) -- an argument not made below -- we disagree with the defendant's contention. We are not persuaded that this evidence was either impermissible per se or, in this case, more unfairly prejudicial than probative.
Finally, the defendant renews his claim that his acquittal in the first trial on two counts of possessing a loaded firearm precludes on collateral estoppel grounds his second trial on the remaining counts of possession of a firearm and possession of ammunition where the only ammunition he is alleged to have possessed was loaded in the firearms. This argument is foreclosed by the Supreme Judicial Court's decision in Commonwealth v. Charles, 463 Mass. 1008, 1009 (2012).
Judgments affirmed.
Order denying motion to reconsider denial of motion for postconviction relief affirmed.
By the Court (Kafker, C.J., Rubin & Milkey, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 5, 2015.