Commonwealth v. Garvey (Lawyers Weekly No. 10-073-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-12110 COMMONWEALTH vs. JAMES GARVEY. Suffolk. December 8, 2016. – May 9, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1] Habitual Offender. Controlled Substances. Grand Jury. Practice, Criminal, Dismissal, Grand jury proceedings. Indictments found and returned in the Superior Court Department on April 1, 2014. A motion to dismiss was heard by Carol S. Ball, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Zachary Hillman, Assistant District Attorney (Kathleen Celio, Assistant District Attorney, also present) for the Commonwealth. Robert A. O’Meara (Joseph M. Perullo also present) for the defendant. BUDD, J. This case requires us to interpret G. L. c. 279, § 25 (a), one provision in the habitual criminal statute, G. L. c. 279, § 25. Section 25 (a) provides for an enhanced penalty where a defendant has two prior convictions resulting in State or Federal prison sentences of three years or more (qualifying sentences). We conclude that § 25 (a) requires that the underlying convictions arise from separate incidents or episodes of criminal behavior. We also conclude that, in this case, the Commonwealth failed to provide the grand jury with sufficient evidence to support the habitual offender portions of the indictments. We therefore affirm the order dismissing the habitual offender portions of the indictments currently pending against the defendant. Background. The defendant, James Garvey, was indicted on charges alleging violations of the controlled substances law, G. L. c. 94C. After returning eight indictments relating to the charged drug crimes, the grand jury received evidence concerning the defendant’s prior convictions, which the prosecutor introduced to establish probable cause for enhanced penalties to be available in relation to these drug offenses. In particular, the grand jury heard that on March 13, 2002, the defendant was convicted of four offenses, each described in a separate count of a single indictment, and was sentenced to at least three years in State prison on each offense. The offenses were (1) kidnapping, (2) receiving stolen property, (3) possession of a firearm with an obliterated serial number, and (4) unlawful possession of a firearm. The grand jurors did not, however, hear any evidence as to when these offenses occurred.[2] The grand jury also heard that on December 5, […]