Commonwealth v. Richardson

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SJC-11472

COMMONWEALTH vs. TARI RICHARDSON.

Plymouth. March 6, 2014. - August 7, 2014.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
& Lenk, JJ.1

Firearms. Practice, Criminal, Sentence, Execution of sentence,
Investigation of jurors, Voir dire. Evidence, Firearm,
Prior violent conduct, Identity. Jury and Jurors.
Statute, Construction.

Indictments found and returned in the Superior Court
Department on April 27, 2007.

The cases were tried before Jeffrey A. Locke, J., and a
posttrial motion to inquire of jurors or for alternative relief
was heard by him.

After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.

William W. Adams for the defendant.
Gail M. McKenna, Assistant District Attorney, for the
Commonwealth.
Michael J. Fellows, for Committee for Public Counsel,
amicus curiae, submitted a brief.

1
Justice Ireland participated in the deliberation on this
case prior to his retirement.
 2

GANTS, J. In Bynum v. Commonwealth, 429 Mass. 705, 707,

709 (1999), we declared that, where the Legislature enacts a

sentencing enhancement statute that provides for a longer

sentence where a defendant convicted of the crime has one or

more specified prior convictions, "[t]he prior offense is not an

element of the crime for which a defendant is charged but

concerns the punishment to be imposed if he is convicted . . .

and the prior offense is proved." We, therefore, concluded that

the Legislature did not intend that two sentences be imposed,

one for the underlying offense and a second for having committed

the offense after a prior conviction of the same offense. Id.

at 709. Here, the defendant was convicted of a firearms offense

for which there were two applicable sentencing enhancement

statutes, and the Commonwealth proved convictions of separate

prior offenses for each. The primary issue on appeal is whether

the defendant may be sentenced under both sentencing enhancement

statutes. We conclude that, unless the Legislature has

explicitly declared its intent to permit multiple sentencing

enhancements, a defendant may be sentenced under only one

sentencing enhancement statute.2

2
We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services.
 3

Background. Because the defendant challenges the

sufficiency of the evidence, we recite the evidence at trial in

the light most favorable to the Commonwealth. After midnight on

March 4, 2007, the defendant, an African-American man wearing a

white T-shirt, entered a night club in Brockton, along with

another African-American man wearing a white T-shirt. The club

manager, Aldo Fernandes, recognized the defendant from a prior

incident at the club, and pointed the defendant and his

companion out to two security staff members, Andy Alerte and

Aaron Crutchfield. After the club closed at 1 A.M., and the

staff ushered patrons outside, Brockton police Officer Francis

Czarnowski, who was working on paid security detail at the club

and was walking toward Main Street to direct vehicles exiting

its parking lot, heard gunshots coming from the direction of

Forest Avenue. Officer Czarnowski proceeded in the direction of

the shots, where he observed two groups arguing in the

intersection. Moments later, he saw an African American man

wearing a white T-shirt pick up a firearm from the ground, and

fire three shots into the larger group. Officer Czarnowski

yelled for the shooter to stop, whereupon the shooter and

another African-American man, who was wearing a brown shirt,

fled down Forest Avenue, with Officer Czarnowski in pursuit.

Fernandes, who was observing the departing patrons in the

parking lot, heard a gunshot from the intersection of Main
 4

Street and Forest Avenue, followed by more gunshots coming from

further down Forest Avenue. He then saw the defendant running

down Forest Avenue alone, with Officer Czarnowski close behind

him in hot pursuit. From where he was standing in the club

parking lot, Fernandes had an unobstructed and well-lit view of

the defendant being chased by Officer Czarnowski.3

Alerte was standing outside the club around closing time

when he saw one of the two men Fernandes had earlier pointed out

to him at the corner of Forest Avenue and Main Street, and heard

a loud bang, followed by another loud bang, coming from that

area. He saw one of the two men bend over, grab something from

the bushes, hold an object the way one would hold a firearm, and

then start running down Forest Avenue, with Officer Czarnowski

running behind him.

Officer Czarnowski pursued the two individuals into a

driveway of a nearby house. The man who had shot earlier fired

at Czarnowksi four times; the officer took cover behind two

barrels and returned fire. Thereafter, the shooter and his

companion jumped over the fence into the back yard of an

adjacent house and escaped.

The next day, Fernandes identified the defendant from an

array of photographs as the person he had seen at the night club

3
The defendant's expert testified that Aldo Fernandes was
222 feet away from the person he claimed to have identified as
the defendant.
 5

just after midnight, and who he later observed being chased down

the street by Officer Czarnowski. Alerte identified two

photographs from the array, including a photograph of the

defendant, stating both resembled the person Fernandes pointed

out to him, whom he later saw pick up an object from the bushes.

While being shown the array, he did not favor one photograph

over the other, but at trial he testified that he favored the

photograph of the defendant. Crutchfield also identified the

defendant as the person Fernandes had asked him to keep an eye

on, and whom he had later asked to move along in the parking

lot. Officer Czarnowski was unable to select the defendant's

photograph from the array.

The defendant was questioned by police two days after the

shooting. After waiving the Miranda rights, he initially denied

being at the club on the night of the shooting, then admitted

that he arrived late and alone. He stated that he heard a shot

go off when he was in the middle of Main Street and ducked down,

fearful of being hit by a stray bullet. He denied that he had

been on Forest Avenue, stating that he later ran down another

street to escape from the shooting.

The defendant was indicted on charges of armed assault with

intent to murder, in violation of G. L. c. 265, § 18 (b), and

unlawful possession of a firearm, in violation of G. L. c. 269,
 6

§ 10 (a).4 The latter indictment incorporated three counts, the

first alleging only the unlawful possession itself; the second

alleging unlawful possession by a person previously convicted of

a like firearms offense, in violation of G. L. c. 269, § 10 (d);5

and the third alleging unlawful possession by a person

previously convicted of a violent crime or serious drug offense,

in violation of G. L. c. 269, § 10G (a).6 A Superior Court jury

found the defendant guilty of armed assault with intent to

murder and unlawful possession of a firearm, and after a jury-

waived trial, the judge found under the sentencing enhancement

provisions of § 10 (d) that the defendant previously had been

convicted of unlawful possession of a firearm, and under the

sentencing enhancement provisions of § 10G (a) that the

4
The defendant was also indicted on a charge of assault by
means of a dangerous weapon, in violation of G. L. c. 265, § 15B
(b), but the judge at trial concluded that this offense was a
lesser included offense of assault with intent to murder and
entered a required finding of not guilty.
5
General Laws c. 269, § 10 (d), provides, "Whoever, after
having been convicted of any of the [unlawful possession of a
firearm] offenses set forth in paragraph (a). . . commits a like
offense . . . shall be punished by imprisonment in the state
prison for not less than five years nor more than seven years .
. . ."
6
General Laws § 269, § 10G (a), provides, "Whoever, having
been previously convicted of a violent crime or of a serious
drug offense, both as defined herein, violates the provisions of
paragraph (a) . . . of section 10 shall be punished by
imprisonment in the state prison for not less than three years
nor more than [fifteen] years . . . ."
 7

defendant previously had been convicted of assault and battery

on a police officer.

The judge sentenced the defendant to from eighteen to

twenty years in State prison on the conviction of armed assault

with intent to murder.7 With respect to the sentencing

enhancements on the conviction of unlawful possession of a

firearm, the judge imposed a sentence of from six to seven years

in the State prison on the repeat offender count under § 10 (d),

and a sentence of from six to ten years in the State prison on

the prior violent offender count under § 10G (a),8 both to run

concurrently with each other and with the sentence on the

conviction of armed assault with intent to murder.9

In an unpublished memorandum and order pursuant to Appeals

Court rule 1:28, a panel of that court affirmed the defendant's

7
The Appellate Division of the Superior Court amended the
sentence on this conviction to from fifteen to twenty years in
State prison.
8
We characterize a person who is subject to sentencing
under § 10G after being convicted of the unlawful carrying of a
firearm as an "armed career criminal" only where the defendant
has three prior convictions of a violent crime or serious drug
offense. Commonwealth v. Anderson, 461 Mass. 616, 626 n.10
(2011). The defendant was found to have only one prior
conviction of a violent crime, so we characterize him as a prior
violent offender.
9
The trial judge initially ordered the sentences for the
two counts to run concurrent with each other, but from and after
the sentence on the conviction of assault with intent to murder;
the Appellate Division of the Superior Court amended the
sentences to run concurrent both with each other and with the
sentence on the conviction of assault with intent to murder.
 8

convictions of assault with intent to murder and unlawful

possession of a firearm. However, the panel vacated the two

sentences imposed pursuant to the sentencing enhancement

statutes, and remanded the matter for "resentencing pursuant to

a single sentencing enhancement provision, whereupon the count

under the remaining sentencing enhancement provision shall be

dismissed and the finding set aside." Commonwealth v.

Richardson, 80 Mass. App. Ct. 1103 (2011). We granted the

defendant's application for further appellate review.

Discussion. 1. Multiple sentencing enhancements.

Statutes providing for enhanced sentencing based on a

defendant's prior convictions "do not create independent crimes,

but enhance the sentence for the underlying crime."

Commonwealth v. Johnson, 447 Mass. 1018, 1019-1020 (2006),

citing Bynum, 429 Mass. at 708-709. Therefore, the violations

of § 10 (d) and § 10G (a) are not separate crimes; instead, they

are separate sentencing enhancements for the same underlying

crime of unlawful possession of a firearm, in violation of

§ 10 (a).

The Legislature has "broad power to define crimes, and to

create punishments for them." Commonwealth v. Alvarez, 413

Mass. 224, 231 (1992). This power includes the authority to

require that a defendant be sentenced under multiple sentencing

enhancements where his prior convictions subject him to enhanced
 9

punishment under multiple statutes. Id. See Missouri v.

Hunter, 459 U.S. 359, 368 (1983) ("[s]imply because two criminal

statutes may be construed to proscribe the same conduct . . .

does not mean that the Double Jeopardy Clause precludes the

imposition, in a single trial, of cumulative punishments

pursuant to those statutes").

The limitation on the imposition of multiple sentencing

enhancements is not legislative authority, but legislative

intent. "Where the Legislature has specifically authorized

cumulative punishment under two statutes, even if the two

statutes proscribe the same conduct . . . , a court's job of

statutory construction is terminated, and the intent of the

Legislature is to be enforced." Alvarez, supra at 232. Here,

neither § 10 (d) nor § 10G, nor any other statutory provision,

describes what is to happen when a defendant is convicted of a

crime and is found to have prior convictions that subject him to

sentencing under more than one enhancement. The Commonwealth

asserts, without citation to the statutory text or legislative

history, that, where multiple sentencing enhancements apply, the

Legislature intended to mandate a penalty between the highest

minimum and the highest maximum possible sentences under both

enhancements. As applied here, because § 10 (d) provides for a

minimum sentence of five years and a maximum sentence of seven

years, and § 10G (a) provides for a minimum sentence of three
 10

years and a maximum sentence of fifteen years, the Commonwealth

contends that the judge should be able to impose a sentence of

no less than five years and no more than fifteen years, in one

"consolidated" judgment under both sentencing enhancements.10

It would certainly be permissible for the Legislature to so

provide, and we recognize that it is arguable that the

Legislature intended that a defendant with a prior conviction of

a drug charge or a crime of violence who unlawfully possesses a

firearm be required to serve no less than five years in State

prison, and that a defendant who has also been convicted of a

prior firearms offense be subject to a prison term of up to

fifteen years. But, where there is nothing in the statutory

language or the legislative history to suggest that the

Legislature intended to combine the minimum and maximum terms of

multiple sentencing enhancement provisions in this manner, we

must conclude that the legislative intent regarding this

question is ambiguous. See Busic v. United States, 446 U.S.

398, 407 (1980) (statutes ambiguous where they "fail[ed] to

address . . . whether Congress intended . . . to provide a

duplicative enhancement [for] the underlying felony" which

already contained firearm enhancement), superseded by statute as

recognized by United States v. Gonzales, 520 U.S. 1, 9-11 (1997)

10
The Commonwealth concedes that, pursuant to Bynum v.
Commonwealth, 429 Mass. 705, 707, 709 (1999), the defendant's
sentence must consist of a single judgment.
 11

(statutory amendment clarified congressional intent to authorize

enhanced penalties under both statutes).

Under the rule of lenity, "if we find that the statute is

ambiguous or are unable to ascertain the intent of the

Legislature, the defendant is entitled to the benefit of any

rational doubt." Commonwealth v. Constantino, 443 Mass. 521,

524 (2005). "This principle applies to sentencing as well as

substantive provisions." Commonwealth v. Gagnon, 387 Mass. 567,

569 (1982). Based on this well-established principle of

statutory construction, we will not presume, absent a clear

statement, that the Legislature intended to impose multiple

sentencing enhancements to a single underlying offense.11

Because neither of the enhancement provisions at issue in this

case contains a clear statement of legislative intent regarding

the imposition of multiple sentencing enhancements, the

defendant may only be sentenced pursuant to one of the

enhancement statutes.

We briefly discuss the procedure to be followed when a

defendant is charged with multiple sentencing enhancement

provisions applicable to a single underlying offense. The

11
Cf. Commonwealth v. Hawkins, 21 Mass. App. Ct. 766, 769-
770 (1986), citing Simpson v. United States, 435 U.S. 6, 14
(1978) (absent clear statement from Legislature, no extra
enhancement for use of firearm during commission of felony when
underlying felony -- armed robbery -- already contains
aggravating factor).
 12

Commonwealth may charge a defendant under multiple sentencing

enhancement statutes, especially where it may be unsure which of

a defendant's prior convictions it will be able to prove at

trial. It may then exercise its prosecutorial prerogative to

decide which enhancement provision will apply at sentencing by

entering a nolle prosequi of all but one sentencing enhancement

count, provided it does so before sentencing. See Mass. R.

Crim. P. 16, 378 Mass. 885 (1979) ("prosecuting attorney may

enter a nolle prosequi of pending charges at any time prior to

the pronouncement of sentence. . . . After jeopardy attaches, a

nolle prosequi entered without the consent of the defendant

shall have the effect of an acquittal of the charges contained

in the nolle prosequi"). Where, as here, the Commonwealth did

not exercise its authority to enter a nolle prosequi of one of

the enhancement counts before sentencing, the decision regarding

which sentence will survive on remand rests with the sentencing

judge. See Commonwealth v. Rivas, 466 Mass. 184, 190-191 & n.9

(2013).

2. Sufficiency of the evidence. The defendant claims that

the evidence was insufficient as a matter of law to identify him

as the person who possessed the firearm and fired multiple times

at Officer Czarnowski. Viewing the evidence in the light most

favorable to the Commonwealth, as we must in evaluating such

claims, see Commonwealth v. Latimore, 378 Mass. 671, 676-677
 13

(1979), we conclude that the evidence described earlier in this

opinion was sufficient to support the jury's verdicts.

3. Postverdict inquiry of jurors. The defendant contends

that the judge abused his discretion by failing to order a

postverdict inquiry of female jurors. Ten days after the jury's

verdict, the defendant's brother signed an affidavit in which he

attested that, during a recess in trial proceedings, he

overheard a woman, who was between twenty-five and thirty years

of age, say during a telephone call that her boss was the

brother or cousin of the prosecutor who was trying the case.

The defendant's brother was not certain that the woman he

overheard was a juror, but he had seen her in the court room and

had also seen her speaking with a juror when she was outside the

court room. The defendant requested the trial judge either to

conduct a voir dire of the jurors or to show jurors' photographs

to the witness to determine whether the woman he saw was a

juror. The judge, over the Commonwealth's objection, allowed

the defendant's motion to the extent that he permitted defense

counsel to obtain copies of juror photographs through the

registry of motor vehicles so that they could be shown to the

defendant's brother.12

12
The Commonwealth appealed the judge's decision to the
single justice, and then to the full court, claiming that the
order subjected the jurors to an unwarranted risk to their
 14

As a result of the order, photographs of five of the seven

female jurors were provided to defense counsel,13 and were

included in an array of nineteen photographs that was shown to

the defendant's brother. He did not recognize anyone depicted

in the photographs. Notwithstanding this failure, the defendant

renewed his motion for a judicially supervised voir dire of the

female jurors. The judge denied the motion. The judge noted

that the claim was not juror exposure to extraneous information,

see Commonwealth v. Guisti, 434 Mass. 245, 251 (2001), but

rather possible juror bias based on an undisclosed connection to

the prosecutor. The judge concluded, based on all the

circumstances, that the defendant had "failed to make a

reasonable or colorable showing that there was a possible juror

bias that would warrant further inquiry." We agree with the

Appeals Court that the judge did not abuse his discretion in

denying the renewed motion.

Conclusion. We affirm the defendant's convictions of armed

assault with intent to murder and unlawful possession of a

firearm. We remand the case to the Superior Court with

instructions that the judge vacate the sentence, as revised by

the Appellate Division of the Superior Court, of one of the two

safety. The judge's order was affirmed. Commonwealth v.
Richardson, 454 Mass. 1005 (2009).
13
The other two female jurors, according to their juror
questionnaires, were fifty-six and sixty-five years of age.
 15

sentencing enhancement counts under G. L. c. 269, §§ 10 (d) and

10G (a), leaving the sentence on the other count in effect.

So ordered.