Commonwealth v. Beal

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SJC-11938

COMMONWEALTH vs. DAUNTE BEAL.1

Suffolk. December 10, 2015. - May 24, 2016.

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

Firearms. Assault and Battery by Means of a Dangerous Weapon.
Assault by Means of a Dangerous Weapon. Practice,
Criminal, Duplicative convictions, Sentence. Evidence,
Prior violent conduct. Due Process of Law, Vagueness of
statute.

Indictments found and returned in the Superior Court
Department on November 14, 2008, and January 30, 2009.

The cases were tried before Thomas E. Connolly, J.

The Supreme Judicial Court granted an application for
direct appellate review.

Jessica L. LaClair for the defendant.
Teresa K. Anderson, Assistant District Attorney (Joseph F.
Janezic, III, Assistant District Attorney, with her) for the
Commonwealth.

DUFFLY, J. This case arises from a shooting that occurred

1
As is our custom, we refer to the defendant by the name
appearing in the indictments.
 2

at a cookout in the Dorchester section of Boston on a summer

night in 2008. The defendant was convicted by a Superior Court

jury on indictments charging unlawful possession of a firearm,

G. L. c. 269, § 10 (a); unlawful possession of ammunition, G. L.

c. 269, § 10 (h); carrying a loaded firearm, G. L. c. 269,

§ 10 (n); assault and battery by means of a dangerous weapon

causing serious bodily injury, G. L. c. 265,§ 15A; and two

counts of assault by means of a dangerous weapon, G. L. c. 265,

§ 15B (b).2 The indictments charging unlawful possession of a

firearm also alleged that the defendant previously had been

convicted of two violent crimes and thus was subject to enhanced

penalties under the Massachusetts armed career criminal act,

G. L. c. 269, § 10G (ACCA). In a separate trial following these

convictions, the same jury found the defendant guilty of the

subsequent offender portions of the indictments.

The defendant appealed from his convictions, and we allowed

his application for direct appellate review. The defendant

argues that (1) the evidence was insufficient to prove assault

and battery by means of a dangerous weapon causing serious

bodily injury; (2) the convictions of two counts of assault by

means of a dangerous weapon were duplicative of the conviction

of assault and battery by means of a dangerous weapon causing

2
The jury acquitted the defendant of armed assault with the
intent to commit murder.
 3

serious bodily injury; and (3) the conviction of possession of

ammunition is duplicative of the conviction of possession of a

loaded firearm. He also contends that the evidence presented by

the Commonwealth in support of his prior convictions was

insufficient to establish that he had committed a "violent

crime," and therefore he cannot be convicted under the

subsequent offender portion of the indictments. For the reasons

set forth below, we affirm in part and reverse in part.

1. Background. We summarize the facts the jury could have

found, reserving additional facts for later discussion. On the

night of the shooting, Joao Pereira, the shooting victim, and

his brother, Ovidio Pereira,3 were celebrating a friend's

birthday at a cookout at a house on Howard Avenue in Dorchester.

As some of the guests were standing on the front porch, a man

who was walking past the house on the opposite side of the

street said to "Nelito," one of the partygoers, "Oh, what are

you looking at?" Nelito responded, "Oh, you are looking at me,

I'm just looking at you." The man continued walking down the

street, but returned with another man, who asked Joao if he

"[had] a problem." The two men eventually walked away and had a

conversation with two other men in a Toyota Corolla automobile

that was driving past. The Toyota continued up the street,

3
Because the two brothers share a last name, we will refer
to Ovidio Pereira and Joao Pereira by their first names.
 4

turned around, and stopped in front of the house where the

cookout was taking place. By that time, there were

approximately eight people standing in front of the house, and

another round of verbal exchanges occurred between the occupants

of the Toyota and the guests at the party.

As the vehicle idled in the street, the driver said, "Oh,

you guys are still looking at us funny." Joao responded,

"Nobody's looking at you," to which the driver retorted, "Oh, if

you keep looking at me funny, I'm going to get out the car and

slap you." Joao replied, "You don't have no right to slap

nobody." Joao and another partygoer then threw beer bottles at

the Toyota; one bottle hit the driver in the head and another

bottle broke the rear side window on the driver's side.

The driver, later identified as the defendant,4 got out of

the vehicle, aimed a gun at the group on the porch, and fired

two shots. The partygoers scattered in different directions.

Joao and Ovidio ran to the back of the house with the defendant

chasing after them; they tried to get inside, but the door was

locked. They ran back to the front porch where the defendant,

standing on the first step, fired several more shots at them.

One bullet struck Joao in the lower back.

4
This identification was through circumstantial evidence
and not witness identification; the identity of the driver was
vigorously contested at trial, as the defendant pursued a
defense of misidentification.
 5

The defendant ran back to the Toyota and jumped in, and the

vehicle sped away. Police responded to a 911 call that had been

placed by a neighbor, who had seen the events unfold from his

bedroom window. Shortly thereafter, the defendant was arrested

at his house. He was bleeding from the side of his head, and

had dried blood on his hands and face. The defendant's mother

provided police with a key to the Toyota that the defendant had

given her.5 Investigating officers found a firearm on the floor

of the Toyota and broken glass scattered throughout the vehicle.

Swabs of reddish brown stains were collected from the firearm,

the ground in front of the Howard Avenue house, and the floor of

an apartment the defendant had visited shortly before his

arrest. Tests performed on the deoxyribonucleic acid (DNA) that

was recovered from these locations included the defendant as a

possible contributor to each of the samples.6

5
After the shooting, the defendant was driven in the
Toyota, which belonged to his mother, to a nearby apartment
building. He left the Toyota in the parking lot of that
building.
6
A deoxyribonucleic acid (DNA) criminalist from the Boston
police crime laboratory testified that she extracted the same
DNA profile from each of the three samples, and that she was
able to "get a full complete profile [of] characteristics at all
[sixteen] locations." When asked about the statistical
significance of her findings that the defendant was a "possible
source of the DNA," she explained that the DNA profiles
extracted from the three samples were "the same exact profile"
extracted from a DNA swab taken from the defendant, and that the
profile "could be found in 1 in 110 quintillion Caucasians, 1 in
120 quintillion African-Americans, and 1 in 1.6 quintillion
 6

The defendant testified in his own defense and admitted to

having been in the Toyota on the night of the shooting, but

claimed that another occupant of the vehicle had fired the

shots. In support of this contention, the defendant asserted

that he was not wearing the white T-shirt and dark baseball hat

that a witness testified the shooter had been wearing.

At the close of the Commonwealth's case and again at the

close of all the evidence, the defendant filed motions for

required findings of not guilty; the motions were denied. After

the jury returned their verdicts, a trial was conducted on the

subsequent offender portion of the indictments. The same jury

heard evidence that the defendant previously had been convicted,

pursuant to his guilty pleas, of assault and battery upon a

public employee and assault and battery. Certified copies of

these convictions were introduced, and the defendant stipulated

that he was the individual who had been convicted of those

crimes. After the Commonwealth rested, the defendant filed a

motion for a required finding, arguing that the Commonwealth had

failed to establish that both prior offenses constituted

"violent crimes" within the meaning of the ACCA. The judge

Southeastern Hispanics." The criminalist testified that the DNA
profile was "very rare," and that the statistics describing the
probability that a randomly chosen person would have the same
DNA profile include people of all races, although only three
racial categories are identified by name. The defendant is from
Cape Verde.
 7

denied the motion, and the jury found him guilty.

2. Sufficiency of the evidence of assault and battery by

means of a dangerous weapon resulting in serious bodily injury.

We review the denial of a motion for a required finding to

determine whether "any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt."

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979). The defendant

contends that the evidence was insufficient to support a

conviction of assault and battery by means of a dangerous weapon

resulting in serious bodily injury, G. L. c. 265, § 15A (c) (i),

because the Commonwealth did not introduce testimony from Joao,

testimony from medical personnel who treated his injuries, or

his medical records.

"Serious bodily injury" means "bodily injury which results

in a permanent disfigurement, loss or impairment of a bodily

function, limb or organ, or a substantial risk of death." G. L.

c. 265, § 15A (d).7 We have said that "impairment of a limb

occurs when, because of significant damage to its structure, its

capacity to perform its usual function is compromised."

7
General Laws c. 265, § 13A (b) (i), establishes enhanced
penalties for an assault and battery that causes "serious bodily
injury," and uses the same definition of "serious bodily injury"
as does G. L. c. 265, § 15A (d). See G. L. c. 265, § 13A (c).
Therefore, we look to cases interpreting G. L. c. 265,
§ 13A (c), for guidance.
 8

Commonwealth v. Scott, 464 Mass. 355, 359 (2013). Clearly, "the

loss of a limb . . . would have a substantial impact on a victim

on a par with injuries causing permanent disfigurement or

risking death." Id. But the impairment "need not be permanent

to meet the definition of 'serious bodily injury.'"

Commonwealth v. Marinho, 464 Mass. 115, 118 (2013).

Here, the evidence established that the defendant shot Joao

in the lower back. Ovidio testified that Joao spent two months

in a Boston hospital, where he was taken immediately following

the shooting, and then spent six months at an inpatient

rehabilitation hospital. Upon returning home, Joao used a

wheelchair; he was unable to walk without the use of crutches

and braces on his legs; he had to be carried up and down the

stairs leading to his second-floor apartment; and he was unable

to get in and out of the shower stall without assistance. One

witness testified that Joao has not been able to walk properly

since the shooting.

Jurors are permitted to draw reasonable inferences from the

evidence based on their common sense and life experience. See

Commonwealth v. Kostka, 370 Mass. 516, 536 (1976). Based on the

evidence presented in this case, the jury were permitted to find

that the gunshot wound inflicted by the defendant caused Joao to

suffer an impairment of his limbs, which resulted in

"significant damage" to the structure of his legs, and that the
 9

capacity of his legs "to perform [their] usual function [was]

compromised." See Commonwealth v. Scott, supra. The impairment

of Joao's legs plainly meets the definition of substantial

bodily injury as set forth in the statute. See id.; G. L.

c. 265, § 15A (d). Moreover, Joao was able to walk without

impediment before he was shot in the back, and after the

shooting he was at first unable to walk and later unable to walk

without assistance. It would have been reasonable for the jury

to infer that the gunshot caused the impairment, based on the

chronology of events following the shooting, and in the absence

of any other theory presented to explain the cause of Joao's

injuries. See Commonwealth v. Marinho, supra at 119

(Commonwealth must prove "that the defendant either directly

caused or 'directly and substantially set in motion a chain of

events that produced' the serious injury in a natural and

continuous sequence").

The defendant maintains that the jury could not reach this

conclusion absent medical evidence or testimony from the victim.

In these circumstances, we do not agree. Although the evidence

did not explain the precise biological mechanism by which the

gunshot wound could have impaired Joao's ability to walk or to

use his legs without assistance, the jury were permitted to

conclude, based on common sense, that the gunshot wound to

Joao's back compromised his ability to use his lower limbs. The
 10

defendant's reliance on Commonwealth v. Scott, supra, is

misplaced. There, the victim's medical records established that

she suffered from "a 'grade II' laceration of the liver," id.

at 357, but the Commonwealth did not introduce medical testimony

to explain the "technical terminology" used in the reports or to

establish whether such a laceration "affected the liver's

ability to fulfil its functional role." See id. at 362, 364.

Absent such evidence, we determined that the jury could not have

reached the conclusion that the victim's injury constituted an

impairment of her liver "based on information that was within

the ordinary, common experience of a reasonable juror." Id.

at 364. By contrast, the evidence of the injuries presented

here -- the inability to use one's legs, the need to use a

wheelchair, and the necessity of crutches and braces in order to

walk -- was within the ordinary, common experience of a

reasonable juror. The jury could have concluded, without undue

speculation, that the gunshot wound caused Joao's injuries.

Thus, the evidence supports the conviction of assault and

battery resulting in "serious bodily injury."

3. Duplicative convictions. The defendant contends that

his convictions on two indictments charging assault by means of

a dangerous weapon (one assault against Joao and the other

against Ovidio) were duplicative of his conviction of the

greater offense of assault and battery by means of a dangerous
 11

weapon causing serious bodily injury against Joao. The

Commonwealth's theory at trial was that the defendant fired

shots at Joao and Ovidio in two distinct episodes: one when the

defendant got out of the Toyota and fired two shots, and another

after the defendant chased Joao and Ovidio to the rear of house

and back around to the front porch, at which point he fired

several more shots, one of which hit Joao in the back. The

judge did not instruct the jury that these offenses must be

based on separate and distinct acts, nor did the judge explain

which of the alleged acts corresponded to each of the charges.

Because the defendant did not raise the issue of

duplicative convictions in the Superior Court, we review his

claim to determine whether there was an error that created a

substantial risk of a miscarriage of justice. See Commonwealth

v. Kelly, 470 Mass. 682, 697-698 (2015). As the defendant

argues, assault by means of a dangerous weapon is a lesser

included offense of assault and battery by means of a dangerous

weapon causing serious bodily injury. See Commonwealth v.

Porro, 458 Mass. 526, 529 (2010). "Convictions of both greater

and lesser included acts are permitted only when they 'rest on

separate and distinct acts.'" Commonwealth v. Gouse, 461 Mass.

787, 798 (2012), quoting Commonwealth v. Jackson, 80 Mass. App.

Ct. 528, 529 (2011). The jury must determine whether a

defendant's acts "constitute separate and distinct acts or must
 12

be considered a single crime." Commonwealth v. Kelly, supra at

699, quoting Commonwealth v. Vick, 454 Mass. 418, 435 n.16

(2009).

We examine the convictions of assault by means of a

dangerous weapon and assault and battery by means of a dangerous

weapon causing serious bodily injury based on the actions

against Joao. As we explained in Commonwealth v. Kelly, supra,

even if "there was evidence of separate and distinct acts

sufficient to convict with respect to each . . . charge, the

judge's failure to instruct the jury that each charge must be

based on a separate and distinct act create[s] a substantial

risk of a miscarriage of justice." Id. at 702. Accordingly,

although the prosecutor argued in closing that the defendant's

shooting at Joao occurred in two separate episodes that could

support two distinct convictions, and the facts might support

that conclusion, we are unable to determine on which facts each

conviction rested. Contrary to the Commonwealth's argument, the

judge's instruction that each charge must be considered

separately does not cure the error. See id. at 701. Therefore,

because we have "serious doubt" whether the jury impermissibly

based the convictions of the greater and lesser included

offenses on the same act, the conviction of assault by means of

a dangerous weapon against Joao must be vacated. See id. at

700-701.
 13

A different analysis applies to the defendant's conviction

of assault by means of a dangerous weapon against Ovidio. As to

this charge, the judge instructed that the defendant's acts must

have been directed against Ovidio. The defendant was not

charged with the greater offense of assault and battery by means

of a dangerous weapon against him. In this context, even if the

jury convicted the defendant of the assault against Ovidio based

on the gunshot that hit Joao, which is the same act underlying

the defendant's conviction of assault and battery by means of a

dangerous weapon against Joao, those two convictions are not

duplicative. "'[W]henever a single criminal transaction gives

rise to crimes of violence which are committed against several

victims, then multiple indictments (and punishments)' for the

crime against each victim 'are appropriate.'" Commonwealth v.

Traylor, 472 Mass. 260, 268 (2015), quoting Commonwealth v.

Donovan, 395 Mass. 20, 31 (1985). Consequently, the judge was

not required to instruct the jury on separate and distinct acts

with respect to this charge.

The defendant also contends, and the Commonwealth now

concedes, that his conviction of unlawful possession of

ammunition under G. L. c. 269, § 10 (h), is a lesser offense

included within his conviction of unlawful possession of a

loaded firearm under G. L. c. 269, § 10 (n). See Commonwealth

v. Johnson, 461 Mass. 44, 52-54 (2011). We agree that where all
 14

of the ammunition was loaded in the firearm, these convictions

are duplicative, and conclude that the conviction under G. L.

c. 269, § 10 (h), cannot stand.

4. Conviction under the Massachusetts armed career

criminal act. The ACCA imposes an enhanced sentence on an

individual who is convicted of possession of a firearm if that

person previously has been convicted of a "violent crime" or a

serious drug offense. See Commonwealth v. Eberhart, 461 Mass.

809, 814 (2012) (Eberhart); G. L. c. 269, § 10G. Under the

ACCA, a "violent crime" is "any crime punishable by imprisonment

for a term exceeding one year . . . 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." G. L. c. 140,

§ 121. See G. L. c. 269, § 10G (e) (defining "violent crime" as

having meaning set forth in G. L. c. 140, § 121, for purposes of

enhanced sentences for firearms and ammunition convictions).

Thus, to constitute a violent crime under the ACCA, the crime

must fall within the scope of either (1) the force clause;

(2) the enumerated crimes provision; or (3) the residual clause.

Eberhart, supra at 815.
 15

The defendant previously was convicted of assault and

battery, G. L. c. 265, § 13A (a), and assault and battery upon a

public employee, G. L. c. 265, § 13D. As he did at trial, the

defendant argues that the certified copies of convictions, which

were the only evidence the Commonwealth introduced, were

insufficient to prove that he committed two "violent crimes"

within the meaning of the ACCA. After the case was fully

briefed, the United States Supreme Court decided Johnson v.

United States, 135 S. Ct. 2551, 2555-1556, 2563 (2015)

(Johnson), holding that the residual clause of the "violent

felony" provision of the Federal armed career criminal act

(Federal ACCA) is unconstitutionally vague under the due process

clause of the Fourteenth Amendment to the United States

Constitution. In terms of its definitions of predicate crimes,

the Massachusetts ACCA "largely replicates" the Federal ACCA,

and, as a consequence, we often look to the Federal courts for

guidance on issues relating to the meaning and scope of this

statute. See Eberhart, supra. The parties submitted

supplemental briefs setting forth their positions on how

Johnson, supra, affects the inquiry in this case.

Under the invalidated residual clause in the Federal ACCA,

18 U.S.C. § 924(e)(2)(B) (2012), a crime constituted a "violent

felony" if it was punishable by imprisonment for more than one

year and "otherwise involve[d] conduct that present[ed] a
 16

serious potential risk of physical injury to another."8 The

United States Supreme Court's decision in Johnson, supra at

2557, began by acknowledging the well-established rule that

courts must use the "categorical approach" to determine whether

an offense constitutes a violent felony by "pictur[ing] the kind

of conduct that the crime involves in 'the ordinary case,'

and . . . judg[ing] whether that abstraction presents a serious

potential risk of physical injury" (citation omitted). The

Court then concluded, based largely on the arbitrariness of

hypothesizing the "ordinary case" of any given crime, that

"[i]ncreasing a defendant's sentence under the clause denies due

process of law" because "the indeterminacy of the wide-ranging

inquiry required by the residual clause both denies fair notice

to defendants and invites arbitrary enforcement by judges." Id.

8
At the time the United States Supreme Court issued its
decision in Johnson v. United States, 135 S. Ct. 2551 (2015)
(Johnson), a "violent felony" under the Federal armed career
criminal act (Federal ACCA) was defined as:

"any crime punishable by imprisonment for a term exceeding
one year . . . 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 the 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) (2012). Congress does not yet appear
to have amended the language of the Federal ACCA to remove the
residual clause that the Court concluded was invalid.
 17

The Court was particularly concerned with the "grave

uncertainty" regarding "how to estimate the risk posed by a

crime" and "how much risk it takes for a crime to qualify as a

violent felony." Id. at 2557-2558. The Court looked no further

than its own cases to find a level of uncertainty that was

constitutionally impermissible. See id. at 2558-2560. The

Court in Johnson thus invalidated the residual clause of the

Federal ACCA. Id. at 2557.

The language of the residual clause in the Massachusetts

ACCA is almost identical to that in the Federal ACCA; the only

difference is that the Federal ACCA uses the term "potential" to

qualify the level of risk required. Compare 18 U.S.C.

§ 924(e)(2)(B) ("conduct that presents a serious potential

risk"), with G. L. c. 140, § 121 ("conduct that presents a

serious risk"). We think the additional term does not create a

meaningful difference between the two provisions.9 We agree with

the Court's analysis in Johnson, supra, and conclude that the

residual clause of the Massachusetts ACCA is unconstitutionally

vague.

We turn next to the defendant's argument that the evidence

was insufficient to support his conviction under the ACCA

9
We note also that, in its supplemental brief, the
Commonwealth supports the position that Johnson renders the
residual clause of the Massachusetts ACCA unconstitutionally
vague, on the same reasoning as the United States Supreme Court.
 18

because the Commonwealth failed to present evidence that his two

predicate offenses were "violent crimes." As noted, the only

evidence the Commonwealth introduced relative to those

convictions was the copies of the certified convictions of the

defendant's prior offenses (assault and battery, and assault and

battery on a public employee).

Our decision in Eberhart resolves this issue. In that

case, we explained that we use the "modified categorical

approach" to determine whether a defendant had been convicted of

a violent crime when the defendant was "convicted under a broad

statute that encompasses multiple crimes," not all of which are

categorically "violent crimes." Eberhart, supra at 816. Unlike

the Federal ACCA, under Massachusetts law a defendant is

entitled to a jury trial to determine whether a sentence

enhancement for being an armed career criminal is applicable.10

See id. The evidence presented at that trial "must suffice to

prove, beyond a reasonable doubt, that the [previous] crime for

which [the defendant] was convicted was a violent crime." Id.

10
Under Federal law, a judge determines whether a
defendant's prior offenses are considered predicate felonies
under the Federal ACCA; the judge's inquiry is limited to trial
records of the prior felonies. See Commonwealth v. Eberhart,
461 Mass. 809, 816 (2012). In applying the modified categorical
approach under Federal law, courts are permitted to examine "the
elements, rather than the facts, of a crime." Descamps v.
United States, 133 S. Ct. 2276, 2285 (2013).
 19

Applying this analysis, in Eberhart, supra at 818, we

concluded that only two of the three variants of common-law

battery encompassed by G. L. c. 265, § 13A -- harmful battery

and reckless battery -- qualify as "violent crimes" under the

force clause, which requires that the crime "has as an element

the use, attempted use or threatened use of physical force."11

See G. L. c. 140, § 121. Offensive battery, which "can be

committed through such de minimis touchings as tickling and

spitting," is not a violent crime. Eberhart, supra at 818-819.

Because not all of the crimes encompassed within the battery

statute are violent crimes, we concluded that "a certified

conviction of assault and battery is insufficient to prove

beyond a reasonable doubt that a defendant committed a 'violent

crime' for the purpose of sentencing enhancement under [the

ACCA]." Id. at 819. Here, as discussed, the only evidence

presented to establish that the defendant's prior conviction of

assault and battery was a violent crime was a certified copy of

the conviction. The Commonwealth now concedes that, for the

reasons set forth in Eberhart, supra, this evidence was

insufficient to support the defendant's conviction under the

ACCA based on the predicate offense of assault and battery. Id.

11
In Commonwealth v. Eberhart, supra at 819, we also
reached the same determination under the residual clause. In
light of our conclusion today that the residual clause is
unconstitutionally vague, we do not consider the defendant's
prior acts under the residual clause.
 20

The determination that assault and battery is not

categorically a "violent crime" leads to the conclusion that

assault and battery upon a public employee also is not a violent

crime. The offense of assault and battery upon a public

employee, G. L. c. 265, § 13D, differs from assault and battery,

G. L. c. 265, § 13A, in three respects. First, the crime must

be committed "upon any public employee when such person is

engaged in the performance of his duties at the time of such

assault and battery." G. L. c. 265, § 13D. Second, the offense

carries a minimum punishment of imprisonment for ninety days,

while assault and battery carries no minimum punishment. Id.

Third, a person who commits that offense may be arrested upon

probable cause without a warrant if the victim is a public

employee operating a public transit vehicle. Id.

These differences, however, do not change the underlying

acts that constitute an assault and battery. Like the general

crime of assault and battery, assault and battery upon a public

employee can be committed through a harmful battery, a reckless

battery, or an offensive battery. Therefore, the same reasoning

underlying our conclusion that assault and battery is not a

violent crime, see Eberhart, supra at 818-819, leads to the

conclusion that assault and battery on a public employee is not

categorically a violent crime. See id. at 814, 818, quoting
 21

G. L. c. 140, § 121, and Commonwealth v. Colon, 81 Mass. App.

Ct. 8, 12-22 (2011).

Pointing to cases from Federal courts and the Appeals Court

that have concluded that assault and battery on a police officer

(not public employee) is categorically a violent crime under the

now-defunct residual clause, see, e.g., United States v. Dancy,

640 F.3d 455, 469-470 (1st Cir.), cert. denied, 132 S. Ct. 564

(2011), and Commonwealth v. Colon, supra at 22-23, the

Commonwealth urges us to conclude that the offense is

categorically a violent crime under the force clause. We

decline to adopt this approach. General Laws c. 265, § 13D,

encompasses all assault and batteries against "any public

employee," and is not restricted to police officers. It would

be contrary to the "categorical approach" to determine that a

single subset of a particular offense is categorically a violent

crime. See, e.g., Descamps v. United States, 133 S. Ct. 2276,

2285 (2013) (describing categorical approach and modified

categorical approach).

More importantly, however, we do not think that the

reasoning employed by courts that have concluded that assault

and battery against a public employee, when committed against a

police officer, constitutes a violent crime under the residual

clause is applicable to the inquiry under the force clause. For

instance, in Commonwealth v. Colon, supra at 22, the Appeals
 22

Court concluded that an assault and battery committed against a

police officer, even if of the offensive battery type, is a

violent crime under the residual clause because "even a minor

dispute with a civilian distracts from the officer's duties" and

"creates a public risk." This line of reasoning is not relevant

to our inquiry in light of the conclusion we adopt today

concerning the constitutional infirmity of the residual clause.

The question we must answer is whether assault and battery upon

a public employee qualifies as a "violent crime" under the force

clause. For the reasons set forth with respect to our analysis

of assault and battery, we conclude that it does not.

Consequently, because the Commonwealth failed to introduce

evidence other than the certified copies of the defendant's

convictions to support the charge under the ACCA, the evidence

was insufficient for a conviction, where the predicate offense

was assault and battery against a public official.

Finally, we decline the Commonwealth=s request that we

remand the matter so that the Commonwealth may present at a

second trial evidence sufficient to establish that the defendant

violated the ACCA. The prohibition against double jeopardy

"forbids a second trial for the purpose of affording the

prosecution another opportunity to supply evidence which it

failed to muster in the first proceeding." Burks v. United

States, 437 U.S. 1, 11 (1978). See Berry v. Commonwealth, 393
 23

Mass. 793, 797-798 (1985). As the Commonwealth argues, "the

double jeopardy principle does not automatically bar retrial

'where an insufficiency of evidence appeared only when material

held on appellate review to have been erroneously admitted was

notionally removed from the case'" (citation omitted).

Commonwealth v. DiBenedetto, 414 Mass. 37, 45 (1992), S.C., 427

Mass. 414 (1998). But that principle is not applicable in this

case. Here, the jury convicted the defendant based on evidence

properly introduced by the Commonwealth, and our reversal of the

conviction rests on the ground that the evidence was

insufficient to support it. There was no improper receipt or

exclusion of evidence, only a failure to marshal the evidence

necessary to support a conviction. In such a context, remand is

not appropriate.12 Marshall v. Commonwealth, 463 Mass. 529, 538

(2012) ("The State . . . generally cannot retry a defendant

12
We also decline the Commonwealth's suggestion that remand
is appropriate because the judge incorrectly instructed the
jury. Before trial, the defendant asserted that the
Commonwealth's reliance on the certified copies of his
convictions would be insufficient because neither of his prior
offenses is categorically a "violent crime." The prosecutor
countered that the Commonwealth was not required to submit
evidence other than the certified convictions on the issue of
"violent crime." The judge agreed with the Commonwealth, and
the prosecutor chose to rely solely on the certified convictions
at trial. The judge then incorrectly instructed the jury that
the defendant's prior convictions were "violent crimes by
definition" under Massachusetts law. However, the dispositive
issue here is sufficiency of the evidence; even if the judge had
instructed the jury properly, the result on appeal would be no
different because the evidence the Commonwealth introduced was
insufficient.
 24

'when an appellate court overturns a conviction because of

insufficient evidence'" [citation omitted]).

5. Conclusion. The judgment of conviction of assault by

means of a dangerous weapon against Joao Pereira, G. L. c. 265,

§ 15B (b), and the judgment of conviction under the armed career

criminal act, G. L. c. 269, § 10G, are reversed. The remaining

convictions are affirmed.

So ordered.