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SJC-12281

OMARI PETERSON vs. COMMONWEALTH.

Suffolk. September 5, 2017. - November 29, 2017.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.

Erroneous Conviction. Practice, Civil, Motion to dismiss, 

Review of interlocutory action.

Civil action commenced in the Superior Court Department on 

December 12, 2014.

A motion to dismiss was heard by Peter M. Lauriat, J.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Adam R. LaGrassa, Assistant Attorney General, for the 

Commonwealth.

William S. Smith for the plaintiff.

LOWY, J. After the Appeals Court reversed the conviction 

of the plaintiff, Omari Peterson, and set aside the verdict on a 

charge of unlawful possession of a dangerous weapon, he filed a 

civil complaint in the Superior Court seeking compensation under 

the erroneous convictions statute, G. L. c. 258D. A judge 
2

denied the Commonwealth's motion to dismiss the complaint, and 

the Commonwealth appealed.1 We transferred the case here on our 

own motion to determine whether, under G. L. c. 258D, § 1 (B) 

(ii), Peterson is eligible to pursue a claim for compensation. 

Because we conclude that Peterson's conviction was not reversed 

by the Appeals Court on "grounds which tend to establish" his 

innocence within the meaning of this statute, he is not eligible 

to seek compensation under it. Accordingly, we vacate the order 

denying the Commonwealth's motion to dismiss and remand the case 

to the Superior Court, where judgment shall enter for the 

Commonwealth.

Background and prior proceedings. We recite the 

uncontested facts. The charge underlying Peterson's conviction 

stemmed from a traffic stop of the motor vehicle Peterson was

driving. The officers stopped the vehicle in an area known for 

gang activity after observing the driver commit several traffic 

infractions. The officers approached the driver's side of the 

vehicle and asked Peterson for his driver's license and 

registration, both of which he promptly provided. Despite 

confirming that Peterson's driver's license and registration 

 

1 The Commonwealth is entitled, under the doctrine of 

present execution, to seek interlocutory review of the order 

denying its motion to dismiss with respect to Omari Peterson's 

eligibility under G. L. c. 258D, § 1 (B) (ii). See Irwin v. 

Commonwealth, 465 Mass. 834, 842 (2013).
3

were valid, the officers ordered Peterson to step out of the 

vehicle. As Peterson did so, the officers noticed that a knife 

was clipped to his jeans. Peterson was then placed under arrest 

for carrying a dangerous weapon, G. L. c. 269, § 10 (b).

Peterson moved to suppress the knife prior to trial,

arguing that the exit order lacked constitutional justification. 

That motion was denied, and the case proceeded to trial. A jury 

found Peterson guilty of unlawful possession of a dangerous 

weapon, G. L. c. 269, § 10 (b), and he was sentenced to two and 

one-half years in a house of correction.

On direct appeal, Peterson challenged his conviction on the

grounds that (1) the judge erred in denying his motion to 

suppress because the exit order, resulting in discovery of the 

knife, was not supported by reasonable suspicion; (2) there was 

insufficient evidence to establish that the knife was a 

"dangerous weapon" within the meaning of G. L. c. 269, § 10 (b); 

and (3) jury instructions. In its unpublished memorandum and 

order pursuant to its rule 1:28, see Commonwealth v. Peterson, 

82 Mass. App. Ct. 1118 (2012), a panel of the Appeals Court 

determined that the exit order was invalid because it was devoid 

of specific, articulable facts to support a reasonable 

apprehension of danger or that a crime had been committed; the 

police inquiry should have terminated once Peterson produced a 

valid driver's license and registration. Concluding that the 
4

motion to suppress the knife should have been granted, the 

Appeals Court reversed Peterson's conviction and set aside the 

verdict, but did not reach his additional claims on the ground 

that they were rendered moot. Accordingly, that court did not 

address whether there was sufficient evidence to establish that 

the knife was a dangerous weapon under the governing statute.

After Peterson filed his complaint in the Superior Court 

seeking compensation under the erroneous convictions statute, 

the Commonwealth moved to dismiss pursuant to Mass. R. Civ. P.

12 (b) (6), 365 Mass. 754 (1974). A Superior Court judge denied

the Commonwealth's motion, reasoning that the effect of the 

Appeals Court's decision was that there was no longer a judicial 

determination that the knife found on Peterson was dangerous 

under G. L. c. 269, § 10 (b), and that absent a determination by 

the Appeals Court that the knife was legal, it would be 

speculative to presume that the reversal of Peterson's 

conviction rested on grounds tending to establish innocence.

Statutory overview. The Legislature enacted the erroneous 

convictions statute, G. L. c. 258D, in 2004 in response to the 

steady increase in exonerations in Massachusetts and throughout 

the nation. See Guzman v. Commonwealth, 458 Mass. 354, 355

(2010). See also Irwin v. Commonwealth, 465 Mass. 834, 847-850
5

(2013).

2 The erroneous convictions statute provides a cause of 

action against the Commonwealth for certain "erroneous felony 

conviction[s] resulting in incarceration." G. L. c. 258D, § 1

(A). The class of claimants eligible to pursue relief includes

"those who have been granted judicial relief by a [S]tate court 

of competent jurisdiction, on grounds which tend to establish 

the innocence of the individual." G. L. c. 258D, § 1 (B)

(ii).

3,4

 

2 In construing the erroneous convictions statute's language 

setting out the requirement that to be eligible for recovery 

under the statute, a person must show that his or her conviction 

was reversed "on grounds which tend to establish" innocence, we 

have examined the "exchange between the legislative and 

executive branches" in order to discern a legislative intent 

relative to threshold eligibility. Guzman v. Commonwealth, 458 

Mass. 354, 358 (2010). "The version of the bill initially 

passed by the Legislature and sent to the Governor for signature 

provided for eligibility where judicial relief had been granted 

'on grounds consistent with . . . innocence.'" Id., quoting 

2004 House Doc. No. 4166, as replaced by 2004 House Doc. No. 

4981. The final bill enacted into law, however, adopted the 

Governor's proposed amendments that replaced "the phrase 

'consistent with' with the phrase 'which tend to establish' in 

§ 1 (B) (ii)." Guzman, supra, quoting 2004 House Doc. No. 4166, 

as replaced by 2004 House Doc. No. 5030.

3 An individual seeking eligibility under G. L. c. 258, § 1 

(B) (ii), must also show that the indictment or complaint 

underlying his conviction has been dismissed, that a nolle

prosequi has been entered, or that he was found not guilty at a 

new trial.

4 "[T]he eligibility requirement is 'separate and distinct 

from the merits of the claim of relief that a claimant must 

establish at trial,' namely that he or she did not commit the 

charged offense." Renaud v. Commonwealth, 471 Mass. 315, 319 

(2015), quoting Irwin, 465 Mass. at 842. At trial, the burden 
6

We have previously construed the eligibility language at 

issue, "grounds which tend to establish [] innocence." G. L. 

c. 258D, § 1 (B) (ii). The statute does not restrict 

eligibility "to individuals whose convictions were vacated or 

reversed strictly on the basis 'of compelling or overwhelming 

exculpatory evidence,' that is, on the grounds that they were 

actually innocent." Irwin, 465 Mass. at 844, quoting Guzman,

458 Mass. at 359. "Rather, 'grounds which tend to establish' a 

plaintiff's innocence require that a conviction be overturned 

'on grounds resting upon facts and circumstances probative of 

the proposition that the claimant did not commit the crime.'"

Irwin, supra, quoting Guzman, supra.

"We have cautioned, however, that such grounds must 'tend[] 

to do more than merely assist the defendant's chances of 

acquittal.'" Irwin, supra, quoting Guzman, supra at 360. 

"[C]onvictions that are reversed only because of 'procedural or 

evidentiary errors or structural deficiencies at . . . trial[] 

that could well be 'consistent' with innocence without any

tendency to establish it' would not meet the statutory 

definition." Irwin, supra at 846, quoting Guzman, supra at 358.

 

on individuals eligible to seek relief under the erroneous 

convictions statute is much greater: they bear the burden of 

establishing by "clear and convincing evidence" that they did 

not commit the crimes with which they were charged. G. L. 

c. 258D, § 1 (C).
7

Discussion. Both the Commonwealth and Peterson rely on 

previous case law to argue whether Peterson's conviction was 

reversed "on grounds which tend to establish" his innocence

under G. L. c. 258D, § 1 (B) (ii). See Drumgold v. 

Commonwealth, 458 Mass. 367, 376-378 (2010); Guzman, 458 Mass.

at 357-362. See also Renaud v. Commonwealth, 471 Mass. 315, 

318-320 (2015); Irwin, 465 Mass. at 843-847, 850.

We first interpreted the eligibility requirement language 

in Guzman, 458 Mass. at 357-362. In that case, a Superior Court 

judge allowed Guzman's motion for a new trial because trial 

counsel, to avoid what he perceived to be a conflict of 

interest, took actions that prejudiced Guzman's defense of 

misidentification and deprived him of a fair trial. Id. at 363-

364. More specifically, the judge found that Guzman was denied 

the effective assistance of counsel because trial counsel failed 

to call two percipient witnesses who would have testified that 

someone other than Guzman committed the crimes. Id. at 363.5 

Although presented in the context of an ineffective assistance 

claim, we held that Guzman's reversal "rest[ed] upon facts and 

 

5 Guzman's trial counsel had represented a percipient 

witness in a recently completed case, who, if called to testify

at Guzman's trial, would have contradicted the testimony of the 

Commonwealth's key witnesses. Guzman, 458 Mass. at 363. Not 

only did counsel fail to call these witnesses at trial, but he 

also moved successfully to prevent one of the two from being 

called as a witness by the Commonwealth. Id. at 363 n.16.
8

circumstances probative of the proposition that Guzman did not 

commit the crimes charged as required by G. L. c. 258D, § 1 (B) 

(ii)." Id. at 365. Essential to our analysis was that 

"counsel's ineffective assistance took the form of depriving 

Guzman of the introduction of evidence tending to establish his 

actual innocence." Id. at 365 n.20.

In Drumgold, 458 Mass. at 376-379, decided the same day as 

Guzman, this court held that the order granting a new trial, 

based the absence of critical evidence that undermined the 

credibility of two key prosecution witnesses, satisfied the 

eligibility requirement of § 1 (B) (ii). Drumgold was convicted 

of murder in the first degree based, in large part, on the 

testimony of two eyewitnesses who identified him as the 

assailant. Id. at 378. One witness was discovered to have had

terminal brain cancer, which significantly diminished her 

testimonial faculties, id. at 372-373, and the other had 

received undisclosed inducements to testify at Drumgold's trial,

id. at 373-375. These omissions, which prevented meaningful 

cross-examination of key prosecution witnesses, detracted from 

the reliability of the Commonwealth's identification of Drumgold

as one of the perpetrators and, therefore, from the strength of 

his alibi defense. Id. at 375, 378. The grounds for the 

allowance of Drumgold's motion for a new trial, accordingly, 
9

"rested on facts and circumstances probative of [his] 

innocence." Id. at 378.

In contrast, this court concluded in Irwin, 465 Mass. at 

854-855, that the grant of a new trial based on the erroneous 

inclusion at Irwin's initial trial of consciousness of guilt

evidence related to his prearrest silence did not rest on facts 

and circumstances tending to establish his innocence. We 

explained that while the inclusion of improper consciousness of 

guilt evidence was an error of law, its exclusion "did not 

change the weight of the properly admitted evidence." Id. at 

854. Nor did its exclusion "make it more likely that Irwin did 

not commit the offense charged." Id. at 855. Thus, reversal of 

his conviction on this basis did not constitute "grounds which 

tend to establish" innocence under the statute, and the 

eligibility requirement therefore was not met. Id.

More recently, in Renaud, 471 Mass. at 319-320, we held 

that reversal of Renaud's convictions by the Appeals Court on 

the basis of insufficient evidence to prove that Renaud was the 

person who committed the crimes charged constituted "grounds 

which tend to establish" innocence under G. L. c. 258D, § 1 (B) 

(ii). Renaud's convictions, all of which related to a break-in, 

rested "almost entirely" on an electronic bank transfer card 

bearing his name that police found at the burglarized home. 

Renaud, supra at 316-317. In determining that Renaud was 
10

eligible under the erroneous convictions statute, our conclusion 

rested on "the unique facts" of that case, that is, that "the 

Commonwealth's 'insufficient evidence' pertained to [] 

[Renaud's] identity." Id. at 319.

Here, similar to Irwin, Peterson's conviction was not 

overturned on grounds probative of the proposition that he did 

not commit the crime of which he was convicted. Peterson's 

conviction was overturned because of the improper denial of his 

pretrial motion to suppress the knife obtained during the 

unjustified exit order. Reversal on this basis is not probative 

of the proposition that Peterson did not commit the crime for 

which he was convicted. The Appeals Court's decision reversing 

Peterson's conviction implicates only the constitutionality of 

the police officers' conduct. See Ornelas v. United States, 517 

U.S. 690, 704 (1996) ("[T]he issue in these probable-cause and 

reasonable-suspicion cases is not innocence but deterrence of 

unlawful police conduct"); Commonwealth v. Lora, 451 Mass. 425, 

438 (2008) ("The suppression of evidence under the exclusionary 

rule is a 'judicially created remedy,' whose 'prime purpose is 

to deter future unlawful police conduct'" [citation omitted]). 

Suppression of the knife based on the unjustified exit order, 

therefore, is not probative of whether Peterson possessed a 

dangerous weapon. This is true notwithstanding the fact that 

the Appeals Court's decision, as a practical matter, required
11

the dismissal or nolle prosequi of the underlying criminal 

charge.

In sum, unlike in Guzman and Drumgold, where the grounds 

for relief were based on omissions that would have detracted 

from the weight of the Commonwealth's evidence and were 

probative of the proposition that the defendants in those cases 

did not commit the crimes charged, or Renaud, where the grounds 

for relief rested on insufficient evidence pertaining to the 

defendant's identity as the person who burglarized the home, 

Peterson's reversal was unrelated to the weight of the evidence 

establishing that he was in possession of a dangerous weapon. 

Thus, Peterson cannot meet the threshold eligibility requirement 

because reversal on the basis of an unjustified exit order does 

"not rest on facts and circumstances probative of the 

proposition that [Peterson] did not commit the crimes charged" 

in the complaint. Guzman, 458 Mass. at 365.

To the extent that Peterson claims eligibility under G. L. 

c. 258D based on an argument that he raised in his direct appeal 

but that was not considered by the Appeals Court -- namely, that 

the knife he was carrying in fact did not qualify as a dangerous 

weapon within the meaning of G. L. c. 269, § 10 (b) -- there is 

nothing in the language of the erroneous convictions statute or 

our cases interpreting it that suggests arguments raised but not 

relied on in reversing or vacating a conviction render an 
12

individual eligible to seek relief under that statute.6 See 

Guzman, 458 Mass. at 361, citing Norfolk & Dedham Mut. Fire Ins. 

Co. v. Morrison, 456 Mass. 463, 468 (2010) ("Unless the plain 

meaning of the statute requires it, we will not expand or limit 

its meaning").

Conclusion. We conclude that Peterson's conviction was not 

overturned on grounds tending to establish his innocence, 

thereby rendering him ineligible for compensation under G. L. 

c. 258D, § 1 (B) (ii). The order denying the Commonwealth's 

motion to dismiss is vacated and set aside. The case is 

remanded to the Superior Court, where judgment shall enter for 

the Commonwealth.

So ordered.

 

6 Peterson's position is that the knife was not a dangerous 

weapon under G. L. c. 269, § 10 (b). As the Appeals Court has 

recognized, the fact that a knife blade can be locked in place, 

without more, is insufficient to qualify as a dangerous weapon; 

there must also be "a 'device or case' that allow[s] the blade 

to be drawn at a locked position." Commonwealth v. Higgins, 85 

Mass. App. Ct. 534, 536 (2014), quoting G. L. c. 269, § 10 (b). 

The record before this court is inadequate to resolve whether 

the knife Peterson was carrying qualified under the statute.
GANTS, C.J. (concurring). I agree with the court that the 

ground on which the Appeals Court vacated Omari Peterson's 

conviction of unlawful possession of a dangerous weapon, G. L. 

c. 269, § 10 (b) -- the unconstitutional exit order that led to 

the discovery of the knife clipped to his jeans -- was not a 

ground "which tend[s] to establish [his] innocence" of the crime 

charged, and therefore not a ground that makes him eligible for 

compensation under G. L. c. 258D, § 1 (B) (ii). I write 

separately to note that, if Peterson is correct that the knife 

which he was convicted of possessing was not the type of knife 

whose possession is a crime under G. L. c. 269, § 10 (b), the 

Appeals Court denied him the opportunity to seek the 

compensation that he might be entitled to by resting its 

reversal solely on the unconstitutional exit order and not 

reaching the question whether the evidence was insufficient as a 

matter of law. And if Peterson is correct that his possession 

of the knife was not a crime, there is the additional unfairness 

that he is denied the opportunity to seek compensation for his 

wrongful conviction only because he suffered a separate 

constitutional violation that, when considered alone, was 

sufficient to require the dismissal of the criminal complaint.

A lesson learned from this appeal is that, in the absence 

of corrective legislation, appellate courts in criminal cases 

need to be mindful of the practical consequences of not reaching 
2

a defendant's claim that the evidence at trial was insufficient 

as a matter of law to permit a guilty verdict, where reversal of 

the conviction on this ground would tend to establish the 

innocence of the individual, see, e.g., Renaud v. Commonwealth, 

471 Mass. 315, 319-320 (2015), and where the ground that is the 

basis for reversal would not. The practice of this court has 

generally been to address challenges to the sufficiency of the 

evidence before evaluating other claims, because a determination 

that the evidence was insufficient as a matter of law to support 

a conviction will always result in dismissal of the complaint 

with prejudice, but a determination of error on other grounds 

may result in reversal of the conviction but not dismissal of 

the complaint. See, e.g., Commonwealth v. Aldana, 477 Mass. 

790, 797 (2017); Commonwealth v. Morse, 468 Mass. 360, 375 n.21 

(2014). I recognize that the Appeals Court here dismissed the 

complaint after concluding that the motion to suppress the knife 

should have been allowed. But if Peterson is correct that his 

possession of the knife was not a crime, the unintended 

consequence of the Appeals Court's not reaching the issue of the 

sufficiency of the evidence might be to deny him compensation to 

which he otherwise might be entitled for a wrongful conviction.