Commonwealth v. Bastos

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revision and are superseded by the advance sheets and bound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

21-P-800 Appeals Court

COMMONWEALTH vs. CARLOS BASTOS.

No. 21-P-800.

Plymouth. May 3, 2023. – September 20, 2023.

Present: Massing, Ditkoff, & Singh, JJ.

Firearms. Assault and Battery by Means of a Dangerous Weapon.
Dangerous Weapon. Statute, Retroactive application.
Practice, Criminal, New trial, Juvenile delinquency
proceeding, Prior conviction, Sentence, Motion to suppress,
Standing, Waiver. Estoppel. Search and Seizure, Standing
to object, Consent, Emergency.

Indictments found and returned in the Superior Court
Department on September 2, 2011.

The cases were heard by Cornelius J. Moriarty, II, J.;
motions for postconviction relief, filed on October 25, 2019,
also were heard by him; and motions for postconviction relief
also were heard by William F. Sullivan, J.

Michael J. Hickson for the defendant.
Mary H. Nguyen, Assistant District Attorney, for the
Commonwealth.

MASSING, J. The defendant, Carlos Bastos, was convicted

after a bifurcated bench trial in the Superior Court of unlawful
2

possession of ammunition in violation of G. L. c. 269,

§ 10 (h) (1), and of being a prior violent offender with two

predicate convictions under the Massachusetts armed career

criminal act (ACCA), G. L. c. 269, § 10G (b). He did not appeal

from the judgment, but six years later simultaneously filed

three postconviction motions challenging the denial of his

motion to suppress, the immunization of a witness, and his

sentence. Because the defendant's prior adjudication as a

youthful offender for armed robbery did not involve a "deadly

weapon" and therefore did not qualify as a "violent crime"

within the meaning of the Massachusetts ACCA, we reverse the

defendant's conviction under G. L. c. 269, § 10G (b), and remand

for resentencing based on one predicate offense under G. L.

c. 269, § 10G (a). Discerning no other error in the denial of

the various motions, we affirm the orders denying them.

Background. In 2011, the defendant was indicted for

unlawful possession of ammunition as an "armed career criminal"

under G. L. c. 269, § 10G (c),1 based on three predicate

offenses: a 2007 conviction for assault by means of a dangerous

weapon, a 2003 adjudication of delinquency for assault and

battery by means of a dangerous weapon (ABDW), and a 2006

1 See Commonwealth v. Johnson, 102 Mass. App. Ct. 195, 206
n.9 (2023) (discussing use of term "armed career criminal").
3

youthful offender adjudication for armed robbery while masked.

The defendant filed a motion to suppress the ammunition and

other evidence, which a judge (first motion judge) denied after

an evidentiary hearing in 2012. In 2013, the defendant waived

his right to a jury trial and was tried before a different judge

(trial judge).

We briefly outline the facts introduced at trial. On July

15, 2011, responding to a report of a shooting at the corner of

Green and Newbury Streets in Brockton, Detective Nazaire Paul

went to 45 Newbury Street and spoke with Anna Fernandes, the

owner of the house. Fernandes led Paul around to the back door,

which was open, where Paul encountered Amthomesha Gomes in the

kitchen. Gomes said she was home alone and denied that anyone

had run inside the house. Paul entered, with Fernandes behind

him, and opened a bedroom door, where he found the defendant

lying on the bed. Paul escorted the defendant outside, where

other officers detained him. Paul, joined by Sergeant Mark

Celia, returned to the house and questioned Gomes, who

eventually told the officers that they would find bullets in the

bedroom. The police found a plastic bag containing four .45

caliber bullets under the mattress on which the defendant had
4

been lying. Gomes told the officers that the defendant had

given her the bullets a few days earlier.2

The trial judge found the defendant guilty. At the

subsequent bench trial on the ACCA indictment, defense counsel

argued, to no avail, that the Legislature had intentionally

distinguished between "deadly" weapons and "dangerous" weapons

with respect to prior adjudications of delinquency. The judge

found that the defendant had been previously convicted of only

two prior violent crimes: the assault by means of a dangerous

weapon, for which he was convicted as an adult, and the armed

robbery, for which he was adjudicated a youthful offender.3 The

judge sentenced the defendant to a State prison term of from ten

years to ten years and one day, with credit for 777 days of time

served. The defendant did not appeal from the judgment.

In 2019, the defendant filed three motions challenging

various aspects of his 2013 conviction and sentence: a motion

for a required finding of not guilty pursuant to Mass. R. Crim.

P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), and two

2 Gomes testified at the defendant's trial under a grant of
immunity pursuant to G. L. c. 233, §§ 20C-20E. She testified,
contrary to her statements to the police and her grand jury
testimony, that the defendant had not given her the bullets.

3 The judge did not articulate which of the two prior
convictions he relied upon. The parties agree that the judge
did not rely on the adjudication of delinquency for ABDW (shod
foot), which occurred when the defendant was thirteen years old.
5

motions for new trial pursuant to Mass. R. Crim. P. 30 (b), as

appearing in 435 Mass. 1501 (2001). The defendant argued in his

rule 25 (b) (2) motion that the evidence at the sentencing

enhancement trial was insufficient to prove two predicate

offenses because the youthful offender adjudication involved

armed robbery with a "fake handgun," and under Commonwealth v.

Rezendes, 88 Mass. App. Ct. 369 (2015), that adjudication did

not qualify as a violent crime. The defendant argued in his

rule 30 motions that the trial judge erred by granting the

Commonwealth's application to grant immunity to Gomes to compel

her testimony, and that the first motion judge erred by denying

the defendant's 2012 motion to suppress. The trial judge denied

the defendant's rule 25 (b) (2) motion, but did not act on the

new trial motions. A third judge (second motion judge) denied

the rule 30 motions. The defendant timely appealed from the

denial of each motion.

Discussion. 1. Sentencing. Under G. L. c. 269,

§ 10G (e), "violent crime" has the meaning set forth in G. L.

c. 140, § 121, which, as relevant here, defines the term as "any

act of juvenile delinquency involving the use or possession of a

deadly weapon that would be punishable by imprisonment for [a

term exceeding one year] if committed by an adult, that . . .

has as an element the use, attempted use or threatened use of

physical force or a deadly weapon against the person of
6

another." In Rezendes, 88 Mass. App. Ct. at 377-378, we held

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." See

Commonwealth v. Anderson, 461 Mass. 616, 631-632 (2012) ("where

a defendant has been previously 'convicted' as a juvenile of a

'violent crime,' the prior 'conviction' should trigger the

enhanced sentencing provisions of § 10G only where the act of

juvenile delinquency, apart from the other requirements,

involves 'the use or possession of a deadly weapon'").4 The

Commonwealth must prove that the juvenile adjudication involved

a deadly weapon "without inquiring into the manner in which [it]

was used." Rezendes, supra at 379.

The record at the defendant's sentencing enhancement

hearing is devoid of any evidence that his youthful offender

adjudication for armed robbery involved a deadly weapon. The

use of a deadly weapon could not be inferred merely from the

fact of the adjudication, because the crime refers to "being

armed with a dangerous weapon," G. L. c. 265, § 17, not a deadly

one. See Rezendes, 88 Mass. App. Ct. at 373 ("'deadly' has both

A youthful offender adjudication is considered an "act of
4

juvenile delinquency" under G. L. c. 140, § 121. See Anderson,
461 Mass. at 629-632.
7

a stronger and narrower meaning than 'dangerous'"). The

Commonwealth presented no evidence of the type of weapon the

defendant possessed. With his rule 25 (b) (2) motion, however,

the defendant submitted the relevant indictment, which charged

him with being "armed with a dangerous weapon, namely: a fake

handgun." While a fake or toy handgun can be considered a

"dangerous weapon" under G. L. c. 265, § 17, depending on how it

is used, see Commonwealth v. Powell, 433 Mass. 399, 401-402

(2001), nothing in the record indicates that the fake handgun

used here was "inherently deadly." The defendant's youthful

offender adjudication for armed robbery does not qualify as a

"violent crime."

In his rule 25 (b) (2) motion, the defendant sought

retroactive application of Rezendes, which was decided after his

conviction and sentence became final.5 The Commonwealth argues

that Rezendes does not apply to cases on collateral review

because it constituted a new rule of criminal procedure and,

under the "Teague-Bray framework," applied only to cases pending

on direct appeal. See Commonwealth v. Ashford, 486 Mass. 450,

5 A motion for relief under the second sentence of rule
25 (b) (2), which allows the judge to set aside a verdict and
order a new trial, order the entry of a finding of not guilty,
or order the entry of a finding of guilty of any lesser included
offense, can be filed at any time. See Commonwealth v. Gilbert,
447 Mass. 161, 166 (2006).
8

457 (2020), citing Teague v. Lane, 489 U.S. 288, 307 (1989), and

Commonwealth v. Bray, 407 Mass. 296, 303 (1990). The Teague-

Bray framework is inapplicable here, however, because Rezendes

involved a question of statutory construction. "In general,

when we construe a statute, we do not engage in an analysis

whether that interpretation is given retroactive or prospective

effect; the interpretation we give the statute usually reflects

the court's view of its meaning since the statute's enactment."

Ashford, supra at 453, quoting Eaton v. Federal Nat'l Mtge.

Ass'n, 462 Mass. 569, 587 (2012).

Because the Rezendes court's construction of the ACCA was

not constitutionally required, we have discretion to apply it

prospectively only, but "[t]here must be good reason 'to disturb

the presumptively retroactive application' of a statutory

interpretation." Ashford, 490 Mass. at 453, quoting American

Int'l Ins. Co. v. Robert Seuffer GmbH & Co. KG, 468 Mass. 109,

121, cert. denied, 574 U.S. 1061 (2014). "This discretion is

guided by consideration of the novelty of the interpretation,

whether retroactivity is consistent with the purposes of the

rule announced, and whether 'hardship or inequity would result

from retroactive application.'" Ashford, supra, quoting

American Int'l Ins. Co., supra.

We discern no good reason not to apply Rezendes

retroactively to the defendant's conviction. Distinguishing a
9

"deadly" weapon from a "dangerous" one was not a novel

interpretation. The need to prove that a juvenile adjudication

involved a "deadly" weapon is not only clear on the face of the

statute, see Rezendes, 88 Mass. App. Ct. at 373, but was also

signaled in Anderson, 461 Mass. at 631-632, which was decided

before the defendant's trial. Retroactive application is

consistent with the purpose of the ACCA, which maintains the

legislative distinction between juvenile and youthful offender

adjudications and adult criminal convictions. See Anderson,

supra at 630-632. Finally, the interpretation could not be said

to create hardship or inequity for the Commonwealth. The

statute specifically uses the term "deadly weapon," the

defendant raised the distinction between "deadly" and

"dangerous" weapons at sentencing, and even with abundant

advance warning, the Commonwealth would not have been able to

prove that a "fake gun" was a deadly weapon.

Following the general rule that decisions interpreting

statutes are fully retroactive, the defendant is entitled to

application of Rezendes here. His youthful offender

adjudication for armed robbery with a "fake gun" did not qualify

as a prior "violent crime" within the meaning of the ACCA. The

defendant should have been sentenced as a violent criminal with

only one predicate offense under G. L. c. 269, § 10G (a).
10

2. New trial motions. The defendant's two new trial

motions both asserted violations of the rights of Amthomesha

Gomes. The defendant contends that the trial judge committed

reversible error by improperly compelling Gomes to testify under

a grant of immunity, and that the first motion judge should have

allowed his motion to suppress because the entry and search of

Gomes's bedroom without a warrant lacked constitutional

justification. "On a written motion, a judge 'may grant a new

trial at any time if it appears that justice may not have been

done.'" Commonwealth v. Sanchez, 485 Mass. 491, 498 (2020),

quoting Mass. R. Crim. P. 30 (b). As a general matter, we

review the decision on a motion for new trial only for

significant errors of law or other abuse of discretion;

"[w]here, however, the motion judge did not preside at trial and

did not conduct an evidentiary hearing, as happened here, we are

in as good a position as the motion judge to assess the trial

record and therefore review the motion judge's decision de

novo." Commonwealth v. Watkins, 486 Mass. 801, 804 (2021).

a. Gomes's grant of immunity. The defendant asserts that

the trial judge erred in granting Gomes immunity because the

defendant's case did not involve any of the crimes specified in

G. L. c. 233, § 20D. Although the enumerated crimes include

"firearm violations" and "any felony," the defendant argues that

the unlawful possession of ammunition is a misdemeanor and not a
11

firearm violation. The second motion judge held that because

the defendant was charged as an armed career criminal and faced

the possibility of a State prison sentence, his case did involve

a felony. The judge did not reach the question whether unlawful

possession of ammunition under G. L. c. 269, § 10 (h) (1), which

criminalizes unlawful possession, ownership, or transfer of "a

firearm, rifle, shotgun or ammunition," is a firearm violation

within the meaning of G. L. c. 233, § 20D.

We do not reach either of these issues because the

defendant plainly does not have standing to argue that an

immunized witness testified under an improper grant of immunity.

See Commonwealth v. Figueroa, 451 Mass. 566, 578 (2008); Smith

v. Commonwealth, 386 Mass. 345, 349 (1982). "[T]he statutory

procedure for a grant of immunity is designed to accommodate the

witness's rights and the State's need for evidence. The statute

is simply not addressed to the interests of defendants."

Figueroa, supra, quoting Smith, supra.

b. Motion to suppress. The defendant does have standing

to challenge the seizure of the ammunition that he was found

guilty of possessing. "[A] defendant may rely on another's

reasonable expectation of privacy . . . where the defendant has

been charged with possessing contraband at the time of the

search and, also at the time of the search, the property

was . . . in a place where the codefendant had a reasonable
12

expectation of privacy." Commonwealth v. DeJesus, 489 Mass.

292, 296-297 (2022). The indictment specified that the charged

act of possession occurred on the date of the search. Gomes

qualifies as a "codefendant" because she could have been charged

with the same crime as the defendant. See id. at 293 n.2.

The defendant did not appeal from his conviction and

therefore did not challenge the denial of his motion to suppress

on direct appeal. The Commonwealth argues that although "[a]

motion for a new trial under rule 30 (b) may include a request

to reconsider a ruling on a motion to suppress evidence,"

Commonwealth v. Rodriguez, 443 Mass. 707, 709 (2005), his

request to do so here is barred by direct estoppel, see id. at

709-710.

"For direct estoppel to apply, the Commonwealth must show

that the issues raised in the defendant's rule 30 (b) motion

were actually litigated and determined on the defendant's

original motion to suppress, that such determination was

essential to the defendant's conviction, and that the defendant

had an opportunity to obtain review of the determination of

[the] motion to suppress" (emphasis added). Rodriguez, 443

Mass. at 710. See Sena v. Commonwealth, 417 Mass. 250, 260

(1994) ("for collateral estoppel to preclude litigation of an

issue, there must have been available some avenue for review of

the prior ruling on the issue"). Here, the motion to suppress
13

was litigated and determined, the denial of the motion was

essential to the conviction, and the defendant had an available

avenue and opportunity to appeal. However, we are not aware of

any Massachusetts precedent in which the doctrine of direct

estoppel has been applied against a criminal defendant who did

not actually take an appeal from the decision adjudicating the

issue sought to be relitigated.

We think that this case is best treated as one in which the

defendant waived his claim by failing to assert it at the

earliest opportunity, which we review for a substantial risk of

a miscarriage of justice. See Commonwealth v. Randolph, 438

Mass. 290, 294-295 (2002); Commonwealth v. Azar, 435 Mass. 675,

685 (2002); Commonwealth v. Crawford, 430 Mass. 683, 685 (2000).

Cf. Commonwealth v. Smith, 460 Mass. 318, 320-321 (2011) ("in a

capital case, issues raised in a postappeal motion for a new

trial that were or could have been raised at trial or in the

direct appeal are to be measured by the substantial risk of a

miscarriage of justice standard"). In addition, if the

defendant had a meritorious appeal from the denial of his motion

to suppress, but he did not pursue the appeal because of neglect

or erroneous advice on the part of counsel, he may well have a

viable new trial motion based on ineffective assistance. See

White v. Commonwealth, 479 Mass. 1023, 1024 (2018); Commonwealth

v. Cowie, 404 Mass. 119, 122–123 (1989); Commonwealth v.
14

Claudio, 96 Mass. App. Ct. 787, 794 (2020). Whether we review

the defendant's late-raised claim directly under the substantial

risk of a miscarriage of justice standard, or indirectly as a

claim of ineffective assistance of counsel, "our approach is

essentially the same." Azar, supra at 686-687.

We discern no risk of a miscarriage of justice based on the

initial entry or search of Gomes's bedroom. As the second

motion judge concluded, Paul's warrantless entry into the

bedroom, where he located and arrested the defendant, was both

justified, based on information that a person who had just been

involved in a shooting nearby had fled inside the building, and

limited in scope. See Commonwealth v. Peters, 453 Mass. 818,

823-825 (2009); Commonwealth v. McCollum, 79 Mass. App. Ct. 239,

250-251 (2011). In addition, Paul entered the dwelling with the

permission of Fernandes, whom he encountered unloading groceries

from her car parked in the driveway. Fernandes told Paul that

she and her husband owned the building and then accompanied Paul

to the rear entrance. Where Paul relied on Fernandes's apparent

authority, as he responded to an ongoing emergency, the denial

of the motion to suppress did not create a risk of a miscarriage

of justice. See Commonwealth v. Porter P., 456 Mass. 254, 270-

271 (2010); Commonwealth v. Santos, 97 Mass. App. Ct. 719, 723

(2020).
15

The subsequent search of the bedroom was conducted only

after the officers inquired further into the ownership and

occupancy of the premises and obtained written consent from

Gomes's mother, who lived with Gomes in the first-floor unit.6

The record supports the second motion judge's conclusion that

Gomes's mother shared common authority over the home and had

actual authority to consent to the search. See Porter P., 456

Mass. at 262. To the extent the officers could have been more

diligent in verifying Gomes's mother's authority to consent to

the search, see id. at 271, we do not perceive a substantial

risk of a miscarriage of justice.

Conclusion. The orders denying the defendant's motions for

new trial are affirmed. The order denying the defendant's rule

25 (b) (2) motion is reversed. The matter is remanded to the

Superior Court, where the judgment of conviction under G. L.

c. 269, § 10G (b), based on two predicate violent crimes, shall

be reversed and the finding set aside. Judgment shall enter

6 The evidence at the suppression hearing showed that
Fernandes and her husband, Arthur DePina, coowned the building,
a two-family dwelling, and lived on the second floor. The
first-floor unit was occupied by Gomes's and DePina's mother and
Gomes. DePina also gave Paul written consent to search the
first-floor unit, but upon learning that DePina did not reside
in that unit, Paul obtained written consent from Gomes's mother,
who did. Although the consent form had to be translated for
Gomes's mother, nothing in the record causes us to question the
first motion judge's determination that her consent was knowing
and voluntary.
16

under G. L. c. 269, § 10G (a), based on one predicate violent

crime, and the defendant shall be resentenced accordingly.

So ordered.