NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
14-P-753 Appeals Court
COMMONWEALTH vs. DOMINIC REZENDES.
No. 14-P-753.
Plymouth. May 11, 2015. - September 17, 2015.
Present: Cypher, Meade, & Massing, JJ.
Firearms. Assault and Battery by Means of a Dangerous Weapon.
Practice, Criminal, Prior conviction, Sentence. Delinquent
Child. Words, "Violent crime," "Deadly weapon."
Indictments found and returned in the Superior Court
Department on February 18, 2011.
The cases were tried before Merita A. Hopkins, J.
James A. Reidy for the defendant.
Jessica Heaton, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. This case requires us to consider the meaning
of "violent crime" as used in the Massachusetts Armed Career
Criminal Act (Massachusetts ACCA or statute), G. L. c. 269,
§ 10G, inserted by St. 1998, c. 180, § 71. Specifically, we
must interpret the term "deadly weapon," as used in the
2
definition of violent crime in G. L. c. 140, § 121, as amended
by St. 1998, c. 180, § 8. The defendant, Dominic Rezendes,
appeals from a conviction under § 10G(c) of the Massachusetts
ACCA, which was based, in part, on a juvenile adjudication for
assault and battery by means of a dangerous weapon (a pen).
We first conclude that the term "deadly weapon" in this
context is distinct from the term "dangerous weapon" as applied
in our common law. We further hold that for the purposes of
conviction under G. L. c. 269, § 10G, a deadly weapon is a
weapon that is inherently deadly, and therefore conclude that a
pen is not a deadly weapon under this statute. Accordingly,
under these circumstances, the defendant's juvenile adjudication
for assault and battery by means of a dangerous weapon could not
have formed the basis for a conviction under the Massachusetts
ACCA. We reverse the defendant's conviction under G. L. c. 269,
§ 10G(c), and remand for resentencing under G. L. c. 269,
§ 10G(b).
Background. In July, 2013, a jury convicted the defendant
on two indictments charging assault and battery by means of a
dangerous weapon and three indictments involving weapons
charges: unlawful possession of a firearm, in violation of
G. L. c. 269, § 10(a); unlawful discharge of a firearm within
500 feet of a building, in violation of G. L. c. 269, § 12E; and
unlawful possession of a loaded firearm, in violation of G. L.
3
c. 269, § 10(n).1 The indictment charging unlawful possession of
a firearm carried an additional count of being an armed career
criminal2 under the Massachusetts ACCA, based on two prior
convictions and an adjudication of delinquency for assault and
battery. Following a jury-waived trial on this count of the
indictment, the judge concluded that the defendant had committed
three predicate offenses and found him guilty of being an armed
career criminal.3
The three predicate offenses included an adjudication as
delinquent for assault and battery by means of a dangerous
weapon (a pen) from when the defendant was sixteen years old, as
well as guilty pleas as an adult to charges of assault and
1
The defendant does not challenge these convictions, and
the facts associated with these convictions are not relevant to
his appeal.
2
"The term 'armed career criminal' derives from the Federal
Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e) (2006),"
Commonwealth v. Anderson, 461 Mass. 616, 626 n.10 (2012), but it
also is used consistently in reference to the Massachusetts
ACCA.
3
Consistent with the mandatory minimum sentencing
guideline, the judge sentenced the defendant to from fifteen to
sixteen years in State prison for carrying a firearm with three
predicate offenses under the Massachusetts ACCA. She then
sentenced him to from nine and one-half to ten years in State
prison for each of the assault and battery by means of a
dangerous weapon charges and three months in the house of
correction for the firearm discharge conviction, all of them to
run concurrently with the armed career criminal sentence.
Lastly, the judge sentenced him to one day in the house of
correction for the possession of a loaded firearm charge to be
served from and after his armed career criminal sentence.
4
battery and assault and battery by means of a dangerous weapon.
The juvenile adjudication involved an altercation at a juvenile
detention facility in which the defendant was seen "gouging at
the victim" with a pen.
Discussion. The Massachusetts ACCA provides for enhanced
penalties for the unlawful possession of a firearm by
individuals who have been previously convicted of violent
crimes, as defined in G. L. c. 140, § 121.4 For the purposes of
the statute, the Legislature defined violent crime as follows:
"any crime punishable by imprisonment for a term exceeding
one year, or any act of juvenile delinquency involving the
use or possession of a deadly weapon that would be
punishable by imprisonment for such term if committed by an
adult, that: (i) has as an element the use, attempted use
or threatened use of physical force or a deadly weapon
against the person of another; (ii) is burglary, extortion,
arson or kidnapping; (iii) involves the use of explosives;
or (iv) otherwise involves conduct that presents a serious
risk of physical injury to another" (emphasis supplied).
G. L. c. 140, § 121.
The defendant argues that because his prior juvenile
adjudication for assault and battery by means of a dangerous
weapon did not involve a deadly weapon, it was not a violent
crime under the Massachusetts ACCA, and, therefore, could not
4
The statute also applies to individuals with prior
convictions of serious drug offenses, as defined in G. L.
c. 269, § 10G(e), or some combination of violent crimes and
serious drug offenses. The statute requires the imposition of
mandatory minimum sentences of increasing severity for
individuals with one, two, or three qualifying convictions or
adjudications.
5
qualify as a predicate offense to support a conviction as an
armed career criminal under G. L. c. 269, § 10G(c). Because
this is a question of law, we conduct an independent review.
See Commonwealth v. Rogers, 444 Mass. 234, 235 n.2 (2005).
It is undisputed that, if committed by an adult, an assault
and battery by means of a dangerous weapon would be punishable
by imprisonment for a term exceeding one year and thus would
constitute a violent crime under the Massachusetts ACCA.
However, when committed by a juvenile, an act may be used to
enhance a firearm sentence only when it "involv[ed] the use or
possession of a deadly weapon." G. L. c. 140, § 121. See
Commonwealth v. Anderson, 461 Mass. 616, 628-629 (2012).
Therefore, the defendant's appeal hinges on whether there is a
distinction between the term "deadly weapon," as used in this
definition of violent crime, and "dangerous weapon," as that
term is defined under our common law.
1. Legal significance of the term "deadly weapon."
Because the Legislature did not define "deadly weapon" in § 121,5
5
By the explicit terms of G. L. c. 140, § 121, its
definitions do not apply to other terms defined within that
section itself, so no other language in the section informs the
meaning of the term "deadly weapon." See Commonwealth v.
Foreman, 63 Mass. App. Ct. 801, 803 (2005). Furthermore, the
Legislature has not defined "deadly weapon" elsewhere in the
General Laws. In addition to its use in G. L. c. 140, § 121,
the term "deadly weapon" appears only three other times in the
General Laws, none of which provide guidance on the
Legislature's intended meaning of the term in the context at
6
we apply well-established principles of statutory construction
to determine its meaning. The Commonwealth argues that the
Legislature intended "deadly weapon" to be interpreted as
synonymous with the term "dangerous weapon" as used in our
common law. We disagree.
In general, "a statute is to be interpreted 'according to
the intent of the Legislature ascertained from all its words
construed by the ordinary and approved usage of the language,
considered in connection with the cause of its enactment, the
mischief or imperfection to be remedied and the main object to
be accomplished, to the end that the purpose of its framers may
be effectuated.'" Commonwealth v. Welch, 444 Mass. 80, 85
(2005), quoting from Commonwealth v. Galvin, 388 Mass. 326, 328
(1983). To interpret the term "deadly weapon" as
interchangeable with the term "dangerous weapon" in this context
would be inconsistent with the ordinary usage of the terms, the
intent of the Legislature, and the language of the Federal
analog, on which the Massachusetts ACCA was modeled.
a. Plain meaning. We begin of course "with the language
of the statute itself and 'presume, as we must, that the
Legislature intended what the words of the statute say.'"
issue here. See G. L. c. 209A, § 6; G. L. c. 258E, § 8; and
G. L. c. 127, § 133E. Likewise, the Legislature has not defined
"dangerous weapon" in the General Laws. See Commonwealth v.
Wynton W., 459 Mass. 745, 747 (2011).
7
Commonwealth v. Williamson, 462 Mass. 676, 679 (2012), quoting
from Commonwealth v. Young, 453 Mass. 707, 713 (2009). Here,
had the Legislature intended for the Massachusetts ACCA to apply
to all juvenile adjudications involving dangerous weapons, it
could have used the term "dangerous weapon" rather than "deadly
weapon."
Furthermore, "[w]here the language of a statute is plain,
it must be interpreted in accordance with the usual and natural
meaning of the words." Commonwealth v. Kerns, 449 Mass. 641,
651 (2007) (quotation omitted). See G. L. c. 4, § 6, third par.
("Words and phrases shall be construed according to the common
and approved usage of the language; but technical words and
phrases and such others as may have acquired a peculiar and
appropriate meaning in law shall be construed and understood
according to such meaning"). Contrary to the Commonwealth's
argument, the words "deadly" and "dangerous" do not have the
same meaning under ordinary usage. Webster's Third New
International Dictionary 580 (2002) (Webster's) defines "deadly"
as "tending to produce death." Notably, it identifies "mortal,"
"lethal," "fatal," and "deathly" as synonyms of deadly, but does
not include dangerous on this list. In contrast, Webster's
defines "dangerous" as "able or likely to inflict injury;
causing or threatening harm." Id. at 573.
8
These definitions make clear that "deadly" has both a
stronger and narrower meaning than "dangerous." "Deadly"
connotes an inevitability of death, or at least a higher
certainty of death than does "dangerous." In other words, what
is deadly is patently also dangerous, but it does not follow
that what is dangerous is necessarily deadly.
Our conclusion is bolstered by the additional and similar
principle of statutory construction that requires us to presume
that the Legislature was well aware of the use of the term
"dangerous weapon" in our statutes and the meaning attributed to
that term in our decades of decisional law. See generally
Commonwealth v. Russ R., 433 Mass. 515, 520 (2001) ("Legislature
is presumed to be aware of existing statutes when it . . .
enacts a new one"); Commonwealth v. Garcia, 82 Mass. App. Ct.
239, 244 (2012). Together, our decisional and statutory law
outlines an expansive description of what may constitute a
dangerous weapon, and that description may well draw within its
purview weapons that may be dangerous, but not deadly. See
generally Commonwealth v. Appleby, 380 Mass. 296, 303-304
(1980).
This historical background, in addition to the plain
statutory language, suggests that the Legislature intended to
distinguish the type of weapon that would support a conviction
under the Massachusetts ACCA by requiring proof of not merely a
9
dangerous weapon, but proof of a deadly weapon. That the
Legislature used the term "deadly weapon" and not "dangerous
weapon" speaks to its intent that the term carry a narrow
meaning in the context of the armed career criminal statute. By
contrast, the Commonwealth's proposed interpretation would
eliminate the significance of the Legislature's choice of
language. We instead construe the statute so as to give meaning
to all of its terms. See Commonwealth v. Mendonca, 50 Mass.
App. Ct. 684, 687 (2001).
The Commonwealth correctly notes that the terms "dangerous
weapon" and "deadly weapon," at times, have been used
interchangeably in our case law. However, until recently, no
statute has required us to consider the difference between the
two terms. We have not found, and the Commonwealth does not
identify, any published case in which our court or the Supreme
Judicial Court has compared the definitions of the two terms or
adopted a position that the two terms are synonymous as a matter
of law, and we decline to adopt such a position here.6
6
The terms are not used interchangeably in two of the cases
on which the Commonwealth relies. At issue in Commonwealth v.
Shea, 38 Mass. App. Ct. 7 (1995), was whether the ocean can be
considered a weapon within the meaning of G. L. c. 265, § 15A.
Our only mention of the term "deadly weapon" in that case was in
a footnote explaining that the definition of dangerous weapon
adopted in the Proposed Criminal Code of Massachusetts c. 263,
§ 3(i) (noted with approval in Commonwealth v. Tarrant, 367
Mass. 411, 417 n.6 [1975], to which we were citing), tracked the
definition of "deadly weapon" set out in § 210 of the Model
10
Furthermore, the inherent deadliness of the weapon was not at
issue in any of the cases in which the terms were used
interchangeably.7
Penal Code (1980). See Shea, supra at 15 n.7. In so observing,
we did not adopt a definition of deadly weapon or suggest that
the two terms are in fact synonymous under Massachusetts law.
Rather, we were noting that both definitions require that a
weapon be some sort of object or instrumentality that was
capable of being possessed or controlled, unlike the ocean.
We also do not read the Supreme Judicial Court's use of the
terms in Commonwealth v. Kerns, 449 Mass. at 651-655, to be
interchangeable. Kerns involved a juvenile who was charged with
"threatening to use deadly weapons" under G. L. c. 269, § 14(b).
Id. at 642. The court interpreted the statute at issue in that
case as intending to "punish the communication of any threat
that a deadly, dangerous, or destructive device, substance, or
item is or will be present or used at a specified place or
location." Id. at 652. The court's use of the three adjectives
suggests that it did not assign precisely the same meaning to
each. This interpretation is consistent with the plain language
of G. L. c. 269, § 14(b)(1), as amended by St. 2002, c. 313,
§ 2, which includes "any other device, substance or item capable
of causing death, serious bodily injury or substantial property
damage," clearly covering devices capable of causing varying
degrees of harm, not only those that are deadly. Consequently,
the court's interpretation of G. L. c. 269, § 14(b), supports
our conclusion that the terms "deadly weapon" and "dangerous
weapon" have distinct meanings under the common law.
7
In two out of the three cases to which the Commonwealth
appropriately points, the weapon at issue was a firearm, which
would clearly qualify as both a dangerous and a deadly weapon.
See Commonwealth v. Maldonado, 429 Mass. 502, 509 n.6, 510
(1999); Commonwealth v. Williams, 18 Mass. App. Ct. 945, 946
(1984). This leaves only one case identified by the
Commonwealth in which the use of the term "deadly weapon" is
inconsistent with our interpretation today, and the nature of
the weapon used was not at issue in that case. See Commonwealth
v. Wilson, 72 Mass. App. Ct. 416, 417-418 (2008) (once referring
to crime of "assault and battery with a dangerous weapon" as
"assault and battery with a deadly weapon" but evaluating
11
Instead, while the meaning of deadly weapon has not been
widely explored in our case law, our limited discussion of the
term suggests that the term has independent legal significance.
Although decided after the enactment of G. L. c. 140, § 121, we
concluded in Commonwealth v. Foreman, 63 Mass. App. Ct. 801, 803
(2005), that "[t]he definition of violent crime in [G. L.
c. 140,] § 121[,] uses 'deadly weapon' in the general, common-
law sense." We relied, in part, on Commonwealth v. Claudio, 418
Mass. 103, 108 (1994), which stated, "[a]s a general principle,
our cases treat those felonies involving the use of a deadly
weapon, such as a knife or a loaded gun, as inherently dangerous
to human life." See Commonwealth v. Turner, 59 Mass. App. Ct.
825, 828-830 (2003) (knife is commonly thought of as deadly
weapon).
In addition, while reviewing other jurisdictions' law on
the issue of a weapon's apparent ability to inflict harm for the
purposes of assault by means of a dangerous weapon, the Supreme
Judicial Court has noted that "some [jurisdictions'] decisions
are based on the application of statutes relating to assaults
with 'deadly weapons' which may mean something different from or
more than the words 'dangerous weapon' used in [G. L. c. 265,
whether assault and battery can be on Commonwealth rather than
on person).
12
§ 15A]" (emphasis supplied). Commonwealth v. Henson, 357 Mass.
686, 691 n.1 (1970).
b. Legislative purpose. Next, our interpretation of the
term deadly weapon is consistent with the Legislature's intent
in enacting the Massachusetts ACCA.
In 1998, the Legislature adopted the current version of
G. L. c. 140, § 121 (and its definition of violent crime)
together with the armed career criminal sentencing enhancements
in G. L. c. 269, § 10G, as part of an extensive package of
legislative revisions by which it substantially altered the gun
control laws. See St. 1998, c. 180, §§ 8 (defining terms for
firearms laws), 71 (adopting armed career criminal provision).
See also Commonwealth v. Furr, 58 Mass. App. Ct. 155, 157-158
(2003). In enacting G. L. c. 269, § 10G, the Legislature
intended to increase penalties for individuals convicted of
serious crimes who subsequently violated firearms laws. See id.
at 158.
However, it is clear from its restriction of the qualifying
juvenile offenses that the Legislature intended the law to treat
prior delinquency adjudications differently from adult
convictions. As the Commonwealth acknowledges, the
Legislature's facially apparent purpose for this distinction is
to restrict the statute's application to juvenile offenses to
those that involved a risk to life. Again, if the Legislature
13
had intended to provide for sentencing enhancements when a prior
juvenile adjudication involved any dangerous weapon, it could
have done so explicitly. Therefore, to construe the phrase
"deadly weapon" broadly so as to encompass all dangerous weapons
would be at odds with the apparent legislative intent of the
statute.
c. Federal Armed Career Criminal Act. Moreover, in
construing the definition of "deadly weapon" as distinct from
"dangerous weapon," our construction of the statute is
consistent with the language of the Federal Armed Career
Criminal Act (Federal ACCA), to which our courts have long
turned for interpretive guidance. See generally Commonwealth v.
Colon, 81 Mass. App. Ct. 8, 14 (2011).8
Where the Massachusetts ACCA allows sentence enhancement
only where acts of juvenile delinquency "involve the use or
possession of a deadly weapon" (emphasis supplied), G. L.
c. 140, § 121, the Federal analog allows enhancement only where
such acts "involv[e] the use or carrying of a firearm, knife, or
destructive device" (emphasis supplied). 18 U.S.C.
8
The language of the Massachusetts ACCA closely tracks that
of the Federal analog, with only a few differences. For
example, the Federal ACCA uses the term "violent felony" rather
than the term violent crime. Compare 18 U.S.C. § 924(e)(1)
(2006) with G. L. c. 239, § 10G. See Commonwealth v. Colon,
supra at 12-14.
14
§ 924(e)(2)(B).9 The Federal ACCA does not allow enhancement for
all juvenile offenses involving dangerous weapons, but only for
a subset of weapons that our common law would recognize as
deadly. The Massachusetts ACCA achieves the same result by
explicitly using the term "deadly" instead of listing deadly
weapons.
d. Narrow construction. Finally, it is well established
as a general matter that criminal statutes are to be construed
narrowly, further constraining us to resolve any reasonable
doubt as to the statute's use of the term deadly weapon in favor
of the defendant. See Commonwealth v Kerr, 409 Mass. 284, 286
(1991); Commonwealth v. Pagan, 445 Mass. 161, 167 (2005).
2. Meaning of "deadly weapon" under the statute. Because
we conclude that "deadly weapon" is a term with independent
legal significance, we must now determine its meaning as used by
9
The Federal statute defines "violent felony" as follows:
"any crime punishable by imprisonment for a term exceeding
one year, or any act of juvenile delinquency involving the
use or carrying of a firearm, knife, or destructive device
that would be punishable by imprisonment for such term if
committed by an adult, that --
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another."
18 U.S.C. § 924(e)(2)(B).
15
the Legislature in its definition of violent crime for the
purposes of G. L. c. 269, § 10G. The Commonwealth argues that
the Legislature intended the armed career criminal statute to
apply to prior juvenile offenses involving weapons that were
deadly as used, not only to those involving weapons that are
inherently deadly. We disagree and conclude that for the
purposes of the Massachusetts ACCA, a prior juvenile offense may
serve as a predicate offense only if the Commonwealth can prove
that the weapon used or possessed in the commission of the
offense was inherently deadly.
a. Scope of inquiry into prior convictions. To interpret
the term "deadly weapon" in the context of this statutory scheme
to include weapons that are not inherently deadly would be
contrary to the United States Supreme Court's recent reasoning
in Johnson v. United States, 135 S. Ct. 2551 (2015), as to the
appropriate scope of inquiry into prior convictions for the
purposes of finding a defendant to be an armed career criminal.10
The Supreme Court has long curtailed extensive fact finding
by the sentencing court. It has held that other than in a
narrow range of cases, the Federal ACCA "mandates a formal
categorical approach [in determining whether a prior offense
qualifies as a predicate offense], looking only to the statutory
10
Johnson, supra, involved the residual clause of the
Federal ACCA, but the Court's reasoning applies here as well.
See note 11, infra.
16
definitions of the prior offenses, and not to the particular
facts underlying those convictions." Taylor v. United States,
495 U.S. 575, 600-602 (1990), cited favorably by Johnson, supra
at 2562. See Shepard v. United States, 544 U.S. 13, 16 (2005).
The Court in Johnson, supra at 2557, recently concluded
that the residual clause of the Federal ACCA11 was
unconstitutionally vague, reasoning, in part, that the language
of the clause requires sentencing judges to evaluate specific
facts surrounding the commission of the predicate offense,
rather than simply consider the elements of the offense. For us
to hold that deadly weapons for the purposes of the
Massachusetts ACCA includes weapons that are deadly only when
used in a particular manner -- in other words, that are not
inherently deadly -- would require exactly the type of analysis
that the Supreme Court rejected in Johnson. The fact finder
necessarily would have to evaluate whether, in the commission of
a prior offense, the defendant used an object in a manner that
was deadly, rather than simply whether the element of the crime
11
"Under the [Federal ACCA], a defendant convicted of being
a felon in possession of a firearm faces more severe punishment
if he has three or more previous convictions for a 'violent
felony,' a term defined to include any felony that 'involves
conduct that presents a serious potential risk of physical
injury to another'" (emphasis supplied). Johnson, supra at
2555, quoting from 18 U.S.C. § 924(e)(2)(B). The emphasized
clause is known as that statute's residual clause. Id. at 2556.
17
charged required proof that the weapon used was deadly. Cf.
Johnson, supra.12
Therefore, unless the Commonwealth can prove, without
inquiring into the manner in which the weapon was used, that a
prior adjudication involved a deadly weapon, the adjudication
12
We also have adopted the categorical approach under the
Massachusetts ACCA for cases in which "the statutory definition
of the prior offense unambiguously qualifies that offense as a
predicate conviction." Commonwealth v. Colon, 81 Mass. App. Ct.
at 5.
However, we have held that "in the narrow range of cases
where the statutory or common-law definition of a prior offense
does not conclusively bring it within the category of 'violent
crimes,' the familiar sufficiency of the evidence standard
mandates [a] modified categorical approach," which "permits a
court to determine which statutory phrase was the basis for the
conviction by consulting the trial record -- including charging
documents, plea agreements, transcripts of plea colloquies,
findings of fact and conclusions of law from a bench trial, and
jury instructions and verdict forms." Id. at 16 (quotation
omitted).
Accepting the determination that the Legislature intended
the term "deadly weapon" to have independent legal significance
under the statute, the elements of assault and battery by means
of a dangerous weapon do not "unambiguously qualif[y] that
offense as a predicate conviction," Colon, supra, when the
offense was committed as a juvenile because to qualify, the
offense must have been committed with a deadly weapon.
Therefore, under Colon, the fact finder for a charge under the
Massachusetts ACCA may consult the trial record to determine if
the dangerous weapon used in the underlying juvenile offense was
also a deadly weapon. Such an inquiry is still appropriate
under Johnson, insofar as the question is whether the weapon
used was inherently deadly. The nature of the weapon itself can
easily be ascertained from the record without requiring
additional fact finding about the use of the weapon, which may
not be apparent from the trial record. We cannot assume that
because a jury found that the weapon used was dangerous (either
inherently or as used), they also would have found that the
defendant used the weapon in a deadly manner.
18
cannot qualify as a predicate offense for a conviction under
G. L. c. 269, § 10G. To hold otherwise would render the clause
unconstitutionally vague under Johnson.
b. Ordinary usage and common-law meanings. The
Commonwealth also argues that because our common-law
understanding of "dangerous weapon" includes weapons that are
not inherently dangerous, the same must be true of our
definition of "deadly weapon." Such a conclusion does not
necessarily follow and conflicts with the ordinary meaning of
the word "deadly."
The Commonwealth points to, and we have found, no cases in
which we have applied this construction to the term "deadly
weapon." To the contrary, as discussed above, our cases
discussing deadly weapons have generally involved the use of
those that are "inherently dangerous to human life."
Commonwealth v. Claudio, 418 Mass. at 108. See Commonwealth v.
Drew, 4 Mass. 391, 396 (1808) (describing deadly weapon as one
that would "necessarily," was "likely to," or would "probably,"
kill or do great bodily harm).
Finally, to include weapons that are deadly only as used
for the purposes of the Massachusetts ACCA would effectively
eliminate the discrete distinction between "deadly weapon" and
"dangerous weapon" and, consequently, equate the two terms. For
the reasons already stated, we decline to interpret the statute
19
in such a way that fails to give meaning to the Legislature's
choice of words.13
3. A pen is not a deadly weapon for the purposes of the
Massachusetts ACCA. Because we hold that, for the purposes of a
conviction under G. L. c. 269, § 10G, a deadly weapon must be
one that is inherently deadly, and because a pen is not
inherently deadly, we need not reach the defendant's alternative
argument that the manner in which he used the pen in the
commission of his juvenile offense was not deadly.14
Conclusion. We reverse the defendant's conviction under
G. L. c. 269, § 10G(c), as an armed career criminal based on
three predicate violent crimes and remand for his resentencing
as an armed career criminal based on two predicate violent
crimes under G. L. c. 269, § 10G(b). The remaining judgments
are affirmed.
So ordered.
13
If the Legislature intended "deadly" to be synonymous
with "dangerous," it is free to amend the statute to reflect
that purpose.
14
We do not comment on all of the weapons that would be
considered inherently deadly except to say that the category
clearly includes loaded firearms, certain knives, and explosive
devices. See Commonwealth v. Claudio, 418 Mass. at 108.