COMMONWEALTH v. THOMAS (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the Superior Court, the defendant, Darryl Thomas, was convicted of multiple offenses arising from a fight, captured on surveillance video, outside of a bar in Worcester.² After a bench trial on the sentencing enhancement portion of his trial, the defendant was sentenced as an armed career criminal II (ACC II) and also sentenced as a habitual offender. On the count of the indictment charging the defendant as an ACC II, we reverse the judgment, set aside the finding, and remand for resentencing as an armed career criminal I (ACC I). We otherwise affirm the judgments and the order denying the motion for new trial.

Background. On the night of October 18, 2013, the victim and his cousins were at a bar in Worcester. At some point, the victim saw his cousins run out of the bar, and observed a fight taking place.³ During the fight, the defendant struck the victim on the shoulder with a gun, struck the victim on the head with the gun as the victim attempted to stand up, and, while the victim was lying on the ground, struck him on the head another time with the gun. As the victim again attempted to stand up, the defendant shot him in the chest at close range.⁴

After the police responded to the scene, Officer Terrance Gaffney watched the surveillance video of the shooting that other officers had obtained from the bar. Officer Gaffney recognized the defendant as the shooter. The owner of the bar, Jason Piskator, also watched the surveillance video and identified the defendant as the shooter.

The defense centered on mistaken identity. The defendant did not testify and did not call any witnesses to testify at trial.

Discussion. 1. Armed career criminal convictions. The defendant argues that his ACC convictions cannot stand because the indictments failed to list any qualifying previous convictions. He further argues that the judge erred by allowing the Commonwealth to de facto amend the indictments to rely on convictions that lacked probable cause and emanated from a single plea.

On September 23, 2005, the defendant pleaded guilty to an armed assault and a drug offense, either of which were sufficient to qualify for an ACC I enhancement. See G. L. c. 269, § 10G (a) (“Whoever, having been previously convicted of a violent crime or of a serious drug offense” is subject to ACC I sentencing enhancement). However, because the drug offense and the armed assault arose from the same guilty plea, this “represented a single ‘incidence’ for purposes of § 10G.” Commonwealth v. Resende, 474 Mass. 455, 470 (2016). The two offenses could therefore serve as the basis for an ACC I enhancement, but not as the basis for an ACC II enhancement. Id.

We agree with the Commonwealth's concession and accordingly reverse the defendant's conviction under G. L. c. 269, § 10G (b), as an armed career criminal based on two predicate offenses, and remand for his resentencing as an armed career criminal based on one predicate offense, G. L. c. 269, § 10G (a).⁵ Commonwealth v. Widener, 91 Mass. App. Ct. 696, 703-705 (2017).

2. Habitual offender convictions. There is no dispute that the predicate offenses for the habitual offender convictions involved separate qualifying crimes committed on separate dates. Nonetheless, the defendant contends, for the first time on appeal, that the habitual offender convictions under G. L. c. 279, § 25 (a), cannot stand because there was insufficient evidence presented for the grand jury to determine whether the prior convictions arose out of separate episodes.⁶ We disagree.

An indictment under G. L. c. 279, § 25 (a), must present the grand jury with probable cause that the defendant was previously convicted of two felonies, for which he received a sentence of not less than three years for each felony. G. L. c. 279, § 25 (a). The predicate convictions also must have occurred during “separate qualifying criminal incidents or episodes.” Commonwealth v. Ruiz, 480 Mass. 683, 690 (2018). However, the convictions may arise from a single bundled plea. Id. The defendant did not preserve this issue, and we therefore review for a substantial risk of a miscarriage of justice.⁷ See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

The grand jury were presented with an indictment for G. L. c. 279, § 25, that listed two qualifying convictions in 2005.⁸ The indictment lists the offenses along with the corresponding sentences and different docket numbers for each offense. Under the particular circumstances of this case, where the grand jury were presented with different docket numbers pertaining to different crimes and where the defendant did not argue insufficiency of the indictments at the prior proceedings, we are satisfied that the grand jury had probable cause to indict the defendant.⁹ See Commonwealth v. Barbosa, 477 Mass. 658, 675 (2017) (probable cause to sustain indictment is “low standard” [quotation omitted] ); Globe Newspaper Co. v. District Attorney for Middle Dist., 439 Mass. 374, 382 (2003) (docket numbers assigned chronologically).

3. Firearm conviction. The defendant also argues that his conviction for possession of a firearm during the commission of a felony under G. L. c. 265, § 18B, cannot stand because the indictment was not linked to any of the other charges, and all of the other charges are disqualified because of the prohibition against double jeopardy. This argument was not preserved for review, and we therefore review for a substantial risk of a miscarriage of justice.¹⁰ See Alphas, 430 Mass. at 13. We discern no such risk.

The defendant's charges could not provide the root felony for G. L. c. 265, § 18B, because they “consist[ed] in whole or in part of using a dangerous weapon” (quotation omitted). Commonwealth v. Hawkins, 21 Mass. App. Ct. 766, 768 (1986). However, G. L. c. 265, § 18B, does not require the root felony to be a charged offense.¹¹ See Commonwealth v. Gernrich, 476 Mass. 249, 251 (2017) (“The language of a statute is interpreted in accordance with its plain meaning”).

The surveillance video, played for the jury and admitted as an exhibit at trial, shows the defendant strike the victim with a firearm three distinct times. However, the defendant was only charged with two counts of assault and battery by means of a dangerous weapon. The third, uncharged strike could have served as the predicate offense for G. L. c. 265, § 18B.¹² Under the circumstances of this case, where (a) the defendant did not raise this issue at trial; (b) the alleged error had nothing to do with the defense proffered at trial; and (c) the evidence from the video demonstrates the defendant committing the predicate felony just prior to the shooting, we discern no substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 13.

4. Motion for a new trial. The defendant challenges the identification of the defendant by Gaffney and Piskator and argues that the motion judge erred in denying his motion for a new trial due to the flawed identifications.¹³ We disagree.

In determining the admissibility of a lay witness's identification of a person appearing in a photograph or video, the courts consider several factors, including the quality of the images; the level of familiarity of the witness with the person depicted in the video; and whether the suspect has altered his appearance since the time of the crime or was disguised in the video. Commonwealth v. Pleas, 49 Mass. App. Ct. 321, 325-326 (2000).

Here, the judge did not err in allowing Gaffney's and Piskator's identifications. First, the surveillance video is somewhat grainy and shot at night, albeit on a well-lit street corner.¹⁴ See Pleas, 49 Mass. App. Ct. at 325, quoting United States v. Jackman, 48 F.3d 1, 5 (1st Cir. 1995) (lay opinion may be admitted if video is neither “so unmistakably clear or so hopelessly obscure that the witness is no better-suited than the jury to make the identification”). Moreover, both Gaffney and Piskator were familiar with the defendant prior to their identifications of him.¹⁵ See Pleas, supra at 325-326. The video quality and the witnesses' familiarity with the defendant make it more likely that they were in a better position than the jury to make a correct identification of the defendant from the surveillance video. See id. Therefore, the judge did not err or abuse his discretion in admitting the identifications of the defendant.¹⁶

In addition, the basis of the defendant's motion for a new trial consisted of his identification arguments. Where we discern no error with the judge's admission of the identifications, we also discern no abuse of discretion in the judge's denial of the motion for a new trial, without an evidentiary hearing.¹⁷ Commonwealth v. Vargas, 475 Mass. 338, 354 (2016) (denial of motion for new trial “lies within the sound discretion of the judge and will not be reversed unless it is manifestly unjust or unless the trial was infected with prejudicial constitutional error” [quotation permitted] ). Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004).

5. Conclusion. On the count of the indictment charging the defendant as an ACC II, the judgment is reversed and the finding is set aside; the matter is remanded for resentencing as an ACC I. See Commonwealth v. Sallop, 472 Mass. 568, 570 (2015), quoting Commonwealth v. Cole, 468 Mass. 294, 310 (2014) (“Under double jeopardy principles, the new sentence on a conviction must not increase the ‘aggregate punishment’ imposed under the original sentence”). See also Commonwealth v. Scott, 86 Mass. App. Ct. 812, 816-817 (2015) (judge may resentence defendant on count on which he has not completed his sentence). The remaining judgments are affirmed. The order denying the motion for new trial is affirmed.

So ordered.

Reversed in part; affirmed in part

FOOTNOTES

2.   The jury convicted the defendant of two counts of assault and battery by means of a dangerous weapon, unlawful possession of a firearm, unlawful possession of ammunition, unlawful possession of a loaded firearm, and unlawful possession of a firearm while in the commission of a felony. The jury found the defendant not guilty of armed assault with intent to murder.

3.   Surveillance video captured the fight, including the defendant's actions. The video was played for the jury during the trial and introduced as an exhibit.

4.   The victim was brought to the hospital and survived the shooting.

5.   We disagree that the indictments failed to list any qualifying previous convictions and that the judge erroneously allowed a de facto amendment of the indictments. The indictment stated that the defendant “had previously been convicted of two violent crimes or two serious drug offenses, as defined in [G. L. c. 269, § 10G (e) ], or any combination thereof totaling one, making [the defendant] subject to the penalty provisions of [G. L. c. 269, § 10G].” This statement, coupled with the citations in the indictment to the ACC statute, provided sufficient information on which to indict the defendant, and provided the defendant with notice of the charges.

6.   The defendant limits this argument to the grand jury phase of the proceedings.

7.   The defendant did not file a motion to dismiss the indictment pursuant to Commonwealth v. McCarthy, 385 Mass. 160, 162 (1982), he did not raise this issue in his motion for a new trial, he did not claim ineffective assistance of counsel on this issue, and he did not claim the evidence at trial was insufficient on this issue. See Commonwealth v. Shippee, 83 Mass. App. Ct. 659, 665 (2013), quoting Commonwealth v. Senior, 454 Mass. 12, 14 (2009) (defendant must raise challenge to sufficiency of indictment “by a motion to dismiss prior to trial or it will be deemed waived, unless the defendant raises a claim that the court lacks jurisdiction or the indictment fails to charge an offense”).

8.   The Commonwealth presented evidence at the sentencing hearing that the predicate offenses arose from “separate qualifying criminal incidents or episodes.” See Ruiz, 480 Mass. at 690.

9.   The defendant's citation to Commonwealth v. Garvey, 477 Mass. 59 (2017), and Commonwealth v. Hawkins, 21 Mass. App. Ct. 766 (1986), is unpersuasive. In Garvey, the defendant raised the sufficiency argument in a motion to dismiss, which was not done here. Garvey, supra at 61. Hawkins involved a jurisdictional challenge to the indictment, which likewise is not the case here. Hawkins, supra at 767.

10.   We note that the defendant did not raise this issue in a McCarthy motion, a motion for new trial, or as an ineffective assistance of counsel claim.

11.   General Laws c. 265, § 18B, provides, in pertinent part: “Whoever, while in the commission of or the attempted commission of an offense which may be punished by imprisonment in the state prison, has in his possession or under his control a firearm, rifle or shotgun shall, in addition to the penalty for such offense, be punished ․”

12.   Additionally, the language of G. L. c. 265, § 18B, is similar to the language in the felony-murder statute. The Supreme Judicial Court has held that uncharged offenses may serve as the predicate felony for a felony-murder conviction. See Commonwealth v. Rivera, 464 Mass. 56, 81 (2013); Commonwealth v. Stokes, 460 Mass. 311, 315 (2011); Commonwealth v. Smiley, 431 Mass. 477, 491 (2000); Commonwealth v. Eagles, 419 Mass. 825, 839 n.16 (1995).

13.   The defendant contends that the judge erred by allowing the admission of Officer Gaffney's and Piskator's in-court and out-of-court identification from the surveillance video. He also argues that Piskator's identification procedure was unduly suggestive.

14.   We have viewed the videotape. See Commonwealth v. Hoyt, 461 Mass. 143, 148-149 (2011) (appellate court in same position as trial court in reviewing videotape and will take independent review of documentary evidence).

15.   As Gaffney testified, he had observed the defendant about five times during the year prior to the shooting, with one encounter consisting of a conversation in “very close proximity” for about ten minutes. Gaffney also testified that he observed the defendant throughout the city in his vehicle. After a voir dire with Gaffney, the judge ruled that Gaffney had “independent knowledge and familiarity” of the defendant. Piskator testified that he had known the defendant for ten years from bartending in Worcester. He also testified that on the night of the shooting, he greeted the defendant while the defendant was outside of the bar in a vehicle.

16.   We further note that there was no error in admitting Piskator's out-of-court identification because the identification was not “unnecessarily suggestive” where Piskator had familiarity with the defendant for ten years and the defendant did not show that Piskator's identification was influenced by the presence of police during his identification. See Commonwealth v. Martin, 447 Mass. 274, 279-280 (2006). We also disagree that the judge erred in allowing the in-court identifications, because the witnesses made prior identifications of the defendant and therefore this was not analogous to an “in-court showup.” See Commonwealth v. Crayton, 470 Mass. 228, 241 (2014).

17.   Moreover, the defendant could not show that trial counsel's representation prejudiced him. See Commonwealth v. Millien, 474 Mass. 417, 432 (2016) (we do not “have a serious doubt whether the jury verdict would have been the same had the defense been presented”).