Appeals Court, December 6, 2011

A certified record of conviction alone is sufficient evidence that the defendant was convicted of a predicate "violent crime," for purposes of the armed career criminal sentencing enhancements, G.L. c. 269, § 10G (a)-(c) when the predicate offense is assault and battery on a police officer (ABPO), G.L. c. 265, § 13D, but it is not sufficient evidence when the predicate offense is assault and battery, G.L. c. 265, § 13A (a).

A Superior Court jury convicted the defendant of assault and battery by means of a dangerous weapon, G.L. c. 265, § 15B (b); carrying a firearm without a license, G.L. c. 269, § 10 (a); and possession of ammunition without a firearm identification card (FID card), G.L. c. 269, § 10 (h).  In a second trial, another Superior Court jury convicted him on one count of being an armed career criminal based on three predicate offenses, G.L. c. 269, § 10G (c), as a sentence enhancement on his conviction under G.L. c. 269, § 10 (h).  During the trial, the Commonwealth presented evidence of three prior convictions, one for assault and battery and two for assault and battery on a police officer, through the testimony of probation officials and the introduction of the certified prior convictions as proof of the predicate offenses.  The certified records identified the convictions only by the terms "assault and battery on a police officer" and "assault and battery," yet the Commonwealth did not present evidence as to whether these convictions resulted from harmful, reckless, or offensive batteries, or as to the circumstances of the three predicate convictions.

The defendant appealed his conviction arguing that as to the second trial, a certified record of conviction alone, without other evidence, does not constitute sufficient evidence that the defendant was convicted of a predicate "violent crime," for purposes of the armed career criminal sentencing enhancements, G.L. c. 269, § 10G (a)-(c).

In order to sustain a conviction under the Massachusetts Armed Career Criminal Act, G.L. c. 269, § 10G (a)-(c), (MACCA) the Commonwealth must prove that the defendant has been previously convicted of at least one "violent crime."  A “violent crime” is 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 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."

The MACCA therefore has three components: (1) the "physical force" or "force" clause; (2) the enumerated crimes provisions; and (3) the residual clause.

The court determined that in these cases, a fact finder may use the “categorical approach” when determining whether a prior conviction qualifies as a predicate offense for purposes of the MACCA.  This would require the court to look only to the fact of the conviction and the statutory definition of the prior offense.  However, “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.” See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).  If a certified record of conviction identifies a statutory or common-law term which could refer to multiple crimes with different material elements, then the certified record permits any rational fact finder to conclude, beyond a reasonable doubt, that the defendant was convicted of a "violent crime" only if all crimes defined by that statutory or common-law term are "violent crimes." See ibid.; United States v. Holloway, 630 F.3d 252 (1st Cir. 2011)at 256-257.  See also Shepard v. United States, 544 U.S. 13 (2005) at 15-17, 24-26. If the statutory or common-law crime encompasses several offenses at least one of which is not a "violent crime," then a rational fact finder would require some additional evidence that the conviction at issue was of one of the offenses that constitutes a "violent crime" in order to conclude, beyond a reasonable doubt, that the defendant was previously convicted of a "violent crime." See Commonwealth v. Latimore, supra. Accord United States v. Holloway, 630 F.3d at 259-260.”
The court analyzed the offense of assault and battery and assault and battery on a police officer under the three components required for a predicate offense under the MACCA: (1) the "physical force" or "force" clause; (2) the enumerated crimes provisions; and (3) the residual clause.  

Assault and Battery:
“Assault and battery is a common law crime now set forth in G.L. c. 265, § 13A.... Because there are harmful batteries and offensive batteries, there is a bifurcation in the law of battery." Commonwealth v. Burke, 390 Mass. 480, 482 (1983). See Commonwealth v. Boyd, 73 Mass. App. Ct. 190, 194-195 (2008) (recognizing as distinct harmful battery, offensive battery, and battery defined as a "willful, wanton, and reckless act [resulting] in personal injury to another," i.e., reckless battery).  Harmful battery, reckless battery, and offensive battery have different material elements, so a certified record of conviction which refers only to "assault and battery" could refer to any one of these three sets of material elements.”

The court concluded that, while harmful battery and reckless battery are “violent crimes” under the MACCA, offensive battery is not and thus the Commonwealth must present evidence at trial of the facts and circumstances of the assault and battery.

Assault and Battery on a Police Officer:
The court found that the additional element of assault and battery on a police officer, even when based on offensive battery, qualifies as a "violent crime" under the residual clause.   “In addition to the elements required for assault and battery, conviction of assault and battery on a police officer requires proof ‘that the offense be committed on a 'public employee who was engaged in the performance of his duty at the time' of the assault and battery.’ Commonwealth v. Correia, 50 Mass. App. Ct. 455, 457 (2000), quoting from G.L. c. 265, § 13D, as amended by St. 1990, c. 498. The Commonwealth must also prove that the defendant knew his victim was a police officer. See Commonwealth v. Deschaine, 77 Mass. App. Ct. 506, 514-515 (2010). Thus, the Commonwealth may meet its burden by proving harmful battery, reckless battery, or offensive battery, plus the additional elements. See Commonwealth v. Correia, supra.”  Therefore, the court concluded that the offense of assault and battery on a police officer does qualify as a MACCA predicate offense as matter of law.

The court held that a certified record of conviction is sufficient when the predicate offense is assault and battery on a police officer, G.L. c. 265, § 13D, but that it is not when the predicate offense is assault and battery, G.L. c. 265, § 13A (a).  Consequently, the court reversed the defendant's conviction under G.L. c. 269, § 10G (c), as an armed career criminal based on three predicate violent crimes and remanded the defendant’s case for resentencing as an armed career criminal based on two predicate violent crimes, G.L. c. 269, § 10G (b).