Summary
The Supreme Judicial Court of Massachusetts held that a BB gun is not a “firearm” for purposes of the armed robbery statute, G. L. c. 265, § 17. It vacated the defendant’s firearm-armed robbery convictions and remanded for entry of judgments of guilt on the lesser included offense of unarmed robbery. The court also addressed the validity of the indictments, jury instructions, ineffective assistance claims, and the availability of a lesser-included-offense remedy.
Topics
Practice areas
Questions Presented
- Whether a BB gun is a firearm within the meaning of the armed robbery statute, G. L. c. 265, § 17.
- Whether the indictments were facially invalid because the charging language referred to a handgun rather than expressly using the word firearm.
- Whether the jury instruction improperly permitted conviction for firearm-armed robbery based on a replica or toy weapon.
- Whether trial counsel was constitutionally ineffective for failing to argue that admitted DNA evidence was exculpatory.
- Whether the court could vacate the firearm-armed robbery convictions and remand for entry of convictions on the lesser included offense of unarmed robbery despite the absence of a lesser-offense instruction.
Holdings
- A BB gun is not a firearm for purposes of the armed robbery statute. Because the evidence did not establish the firearm element, the convictions for armed robbery by means of a firearm could not stand.
- The indictments were valid because their caption identified firearm-armed and masked robbery under G. L. c. 265, § 17, and the allegation that Garrett was armed with a handgun gave him fair notice of the charged offense.
- The instruction was erroneous insofar as it suggested that a replica or toy weapon could satisfy the firearm element of firearm-armed robbery. The error did not independently require reversal because the defendant did not object, the instruction did not affect other elements, and the firearm convictions were being vacated on the statutory-definition issue.
- Counsel was not ineffective for failing to make the proposed DNA argument because the evidence did not support the argument and there was no reasonable probability that the argument would have changed the result.
- The court could vacate the firearm-armed robbery convictions and remand for entry of judgments of guilt on unarmed robbery because the jury's findings necessarily established all elements of that lesser included offense.
Key quotations
“In sum, we conclude that a BB gun is not a firearm for purposes of the armed robbery statute, G. L. c. 265, § 17.” (263-264)
“The judgments of conviction of armed robbery are vacated and set aside. The matter is remanded to the Superior Court for entry of judgments of guilt on the lesser included offense of unarmed robbery, and for resentencing.” (267)
Factual background
In 2011, Garrett and Laura Methe, facing financial difficulties, committed three store robberies in Pittsfield. Garrett used a BB gun that had been spray-painted to resemble a real gun, wore a mask, threatened store employees, and took money from the stores. Witnesses testified that they believed the weapon was real and felt afraid. Police later apprehended Garrett and Methe while they were fleeing in Methe's SUV.
Procedural history
Garrett was convicted in the Superior Court on three indictments charging armed robbery with a firearm while masked. The Commonwealth relied on evidence that Garrett used a BB gun. On direct appellate review, Garrett challenged the sufficiency of the evidence, the validity of the indictments, jury instructions, and the effectiveness of trial counsel. The Supreme Judicial Court vacated the firearm-armed robbery convictions and remanded for entry of judgments of guilt on the lesser included offense of unarmed robbery and for resentencing.
Remand instructions
Vacate and set aside the judgments of conviction for armed robbery with a firearm while masked. Remand to the Superior Court for entry of judgments of guilt on the lesser included offense of unarmed robbery and for resentencing.