Massachusetts Appeals Court Says a Pen is not a Deadly Weapon

The Massachusetts Appeals Court today ruled that a pen does not qualify as a deadly weapon pursuant to the Massachusetts Armed Career Criminal Act (ACCA).  The name of the case is Commonwealth v. Rezendes.

A jury convicted the defendant in 2013 of indictments charging him with assault and battery with a dangerous weapon and several firearms charges.  Following his convictions for the underlying offenses, a judge found beyond a reasonable doubt that the defendant had been convicted (or adjudicated as a juvenile) of three prior violent crimes.  These prior convictions in conjunction with the underlying gun convictions in this case mandated that the defendant receive an enhanced prison sentence as an armed career criminal.  The defendant was sentenced to serve 15-16 years in state prison.

One of the predicate offenses involved a case where the defendant was adjudicated delinquent of assault and battery with a dangerous weapon (a pen) when he was a juvenile.  In that case, the defendant was witnessed using a pen to gouge at the victim while in custody at a juvenile detention facility.

The Massachusetts Legislature has defined violent crime as any crime that carries more than a one-year period of incarceration, or any act of juvenile delinquency that involves use or possession of a deadly weapon, that, among other things, involves the use, attempted use, or threatened use of force.  The issue on appeal was whether the pen used by the defendant in an assault in the juvenile detention facility qualified as a deadly weapon.  The trial judge concluded that it did and the Appeals Court reversed.

The Commonwealth argued that “deadly weapon” was synonymous with “dangerous weapon.”  In Massachusetts criminal law, a dangerous weapon includes inherently dangerous weapons (such as guns and knives), but it also includes any other item that is intentionally used as a weapon in a dangerous way.  Therefore, a pen can be a dangerous weapon if it is used to stab another person.  The Appeals Court disagreed with the Commonwealth’s analysis, ruling that “deadly” has a stronger and narrower definition than “dangerous.”  The Court said that “deadly” suggests a higher certainty of death than “dangerous,” and no appellate court of the Commonwealth has ever concluded that the terms mean the same thing.  Additionally, the Legislature specifically chose to use the word “deadly” instead of “dangerous.”  If the Legislature wanted to expose juveniles to future ACCA liability for all cases charging assault and battery with a dangerous weapon, it could have done so by using the word “dangerous” in the statute.  Because a deadly weapon is inherently dangerous to human life, a pen does not qualify.

As a result of the Court’s decision, the defendant’s case was remanded for re-sentencing.  With only two prior violent crimes instead of three, he will likely receive a significantly reduced penalty.  There are a few Massachusetts statutes, most notably the ACCA and the habitual criminal statute, that mandate extremely harsh mandatory minimum penalties for defendants who have been convicted of certain prior crimes.  These statutes provide a good reason for defendants to seriously consider whether pleading guilty to a case, even a seemingly minor district court case, is in their best interests.  Under the ACCA statute, a defendant can very quickly accumulate the types of convictions that can result in a devastatingly lengthy state prison sentence.