Commonwealth v. Furr5/16/2003
Suffolk.
December 19, 2002.
Firearms. Practice, Criminal , Prior conviction, Sentence, Instructions to jury, Assistance of counsel. Evidence, Inflammatory evidence.
Indictments found and returned in the Superior Court Department on December 23, 1999, and June 29, 2000.
On transfer to the Juvenile Court Department, the cases were tried before R. Marc Kantrowitz, J.
Section 10G of G. L. c. 269, inserted by St. 1998, c. 180, § 71, imposes enhanced penalties upon any person who violates certain firearm control laws if that person has previously been convicted of a violent crime or of a serious drug offense, both as defined in § 10G(e). The primary question raised by the defendant Willie Furr's appeal is whether his prior adjudication on May 13, 1998, in Juvenile Court, as a youthful offender, on charges of armed carjacking, kidnapping, armed robbery, and assault and battery with a dangerous weapon constitutes a "conviction" that may serve as a basis for imposing on him the enhanced sentences set forth in § 10G. Furr's position is that only an adult conviction can serve as the predicate offense for purposes of charging a defendant under § 10G. There are subsidiary appellate issues.
On October 6, 2000, Furr was convicted by a jury in Juvenile Court on youthful offender indictments charging him with: unlawful possession of a firearm (G. L. c. 269, § 10 ); receiving a firearm with an altered serial number (G. L. c. 269, § 11 ); attempted intimidation of a witness; and obstruction of justice (both under G. L. c. 274, § 6).
1.
Whether a prior adjudication as a youthful offender is a basis for invoking the enhanced penalties provisions of G. L. c. 269, § 10G. Section 10G(a), which is prototypical of the enhanced penalties in the statute, provides:
"Whoever, having been previously convicted of a violent crime or of a serious drug offense, as defined herein, violates the provisions of paragraph (a), (c) or (h) of section 10 shall be punished by imprisonment in the state prison for not less than three years nor more than 15 years" (emphases supplied).
Section 10G(e) provides in pertinent part:
"For the purposes of this section, 'violent crime' shall have the meaning set forth in section 121 of chapter 140."
Section 121 of G. L. c. 140 was wholly rewritten by the same act of the Legislature that inserted G. L. c. 269, § 10G, into the General Laws. That statute, St. 1998, c. 180, bears the caption: "An Act Relative to Gun Control in the Commonwealth." General Laws c. 140, § 121, consists almost entirely of definitions. The definition of "violent crime" is:
" ny 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 of the use, attempted use or threatened use of physical force or a deadly weapon against the person of another . . . ." (emphasis supplied).
The offenses for which Furr, at age 14, was adjudicated a youthful offender in 1998 (armed carjacking, kidnapping, and assault and battery with a dangerous weapon) contained the elements that satisfy § 121; i.e., they were punishable by imprisonment for a term exceeding one year and involved the use of physical force and the display of a firearm, a deadly weapon. We think the language we have underscored in the preceding quotations from statutes, and the context in which that language appears, communicate unmistakably a legislative intent that an adjudication of a juvenile as a youthful o
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