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13-P-1327 Appeals Court
COMMONWEALTH vs. KENNETH FORD.
No. 13-P-1327. November 18, 2014.
Dangerous Weapon. Evidence, Knife. Arrest. Practice,
Criminal, Instructions to jury.
Following a two-day jury trial in the Roxbury Division of
the Boston Municipal Court Department, the defendant was
convicted of carrying a dangerous weapon, a knife, in violation
of G. L. c. 269, § 10(b).1 He appeals, claiming the judge erred
by: (1) failing to enter a required finding of not guilty, as
the evidence was insufficient to submit to the jury, and (2)
instructing the jury that the knife was per se dangerous. We
reverse.
1. Sufficiency of the evidence. In the light most
favorable to the Commonwealth, Commonwealth v. Latimore, 378
Mass. 671, 676–677 (1979), the jury could have found the
following facts. Sometime after 10:00 P.M. on November 1, 2011,
Jose Romero reported to police that, when walking home after
work on Blue Hill Avenue, two men in a van offered him a ride,
which he accepted. One man was reported to have a knife, the
other a gun. Romero said that the men threatened him with the
weapons and robbed him of his cash. After taking this report,
the police agreed to drive Romero home. Just prior to arriving
at Romero's home, a radio transmission was broadcast that the
suspects in the robbery had been stopped. The officers brought
Romero to the location and he identified both individuals,
1
The defendant was acquitted of larceny from a person and
assault by means of a dangerous weapon. Prior to trial, the
Commonwealth dismissed charges of kidnapping and unlicensed
operation of a motor vehicle.
2
including the defendant. The defendant was arrested and
transported to the police station for booking. Police had
searched the defendant at the time of the initial stop and no
weapon was located. During booking, a second search of the
defendant revealed a knife in his pocket. At some point, the
police learned the defendant had active warrants.
In order to prove the defendant guilty of carrying a
dangerous weapon in violation of G. L. c. 269, § 10(b), the
Commonwealth was required to show that he was either carrying
one of the weapons enumerated in the statute or that, "when
arrested upon a warrant for an alleged crime, or when arrested
while committing a breach or disturbance of the public peace,"
he had on his person "a billy or other dangerous weapon other
than those herein mentioned." G. L. c. 269, § 10(b), as amended
by St. 1986, c. 581, § 1. On appeal, the parties agree that the
knife in this case did not fall within the types of weapons
enumerated in the statute.
At the close of the Commonwealth's case, the defendant
moved for a required finding of not guilty. The trial judge
allowed the motion to the extent that the charge was based on
the theory that the defendant carried a dangerous weapon in
breach of the peace, but denied it to the extent that it rested
on the theory that the defendant carried a dangerous weapon
"when arrested upon a warrant." Ibid. The defendant now argues
that the evidence presented does not support that theory of the
crime.
This case centers on the meaning of that portion of the
statute that reads: "when arrested upon a warrant." Ibid. Our
analysis of this phrase is guided by the familiar principle that
"statutory language should be given effect consistent with its
plain meaning and in light of the aim of the Legislature unless
to do so would achieve an illogical result." Sullivan v.
Brookline, 435 Mass. 353, 360 (2001). "Courts must ascertain
the intent of a statute from all its parts and from the subject
matter to which it relates, and must interpret the statute so as
to render the legislation effective, consonant with sound reason
and common sense." Twomey v. Middleborough, 468 Mass. 260, 268
(2014).
The Commonwealth suggests the discovery of the active
warrant and the knife occurred close enough in time to meet the
statutory requirement that the defendant carried a dangerous
weapon "when arrested upon a warrant." That interpretation
ignores the common sense and plain meaning of the phrase "when
3
arrested upon a warrant," which requires that police knowledge
of the warrant must precede any arrest and also be the reason
for the arrest.
Here, it is undisputed that the defendant was arrested
based on Romero's report that he had been robbed. There was no
evidence that the defendant's outstanding warrants played any
role in the decision to arrest the defendant. The detection of
the knife occurred during the second of the two searches, and at
a time when the defendant was already under arrest for the
robbery. The police learned of active warrants at some point
following his arrest. The Commonwealth presented no evidence
that the police knew of those warrants when the defendant was
taken into custody. While the Commonwealth is correct that a
defendant can be arrested for multiple reasons, the record does
not support a finding that the defendant was simultaneously
arrested for the robbery and on active warrants. On these
facts, no "rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt," Commonwealth
v. Latimore, supra at 677 (quotation omitted), and the charge
should not have been submitted to the jury.
2. Jury instructions. The defendant contends that the
trial judge improperly instructed the jury that the knife in
question was per se a dangerous weapon. While we need not reach
that issue in light of our disposition above, we note that under
the language of G. L. c. 269, § 10(b), not every knife is per se
a dangerous weapon. See Commonwealth v. Miller, 22 Mass. App.
Ct. 694, 694 n.1 (1986) ("clear that the Legislature did not
intend to encompass all knives in its enumeration of 'per se'
dangerous weapons"); Commonwealth v. Higgins, 85 Mass. App. Ct.
534, 537 (2014).
Judgment reversed.
Verdict set aside.
Judgment for the
defendant.
Nicholas G. MacInnis for the defendant.
Kathryn E. Leary, Special Assistant District Attorney, for
the Commonwealth.