Commonwealth v. Buckley
Commonwealth v. Buckley
Opinion of the Court
On December 11, 2002, the defendant pleaded guilty to eight indictments charging him with manslaughter in violation of G. L. c. 265, § 13 (indictment no. 001); motor vehicle homicide by reckless or negligent operation in violation of G. L. c. 90, § 2AG(b) (no. 002); leaving the scene of a property damage accident in violation of G. L. c. 90, § 24 (no. 003); operating a motor vehicle so as to endanger in violation of G. L. c. 90, § 24(2)(a) (no. 004); failure to stop for a police officer in violation of G. L. c. 90, § 25 (no. 005); operating a motor vehicle after suspension or revocation of a license for operating under the influence in violation of G. L. c. 90, § 23 (no. 006); operating a motor vehicle after suspension or revocation of a license in violation of G. L. c. 90, § 23 (no. 007); and operating a motor vehicle after suspension or revocation of a license, subsequent offense, in violation of G. L. c. 90, § 23 (no. 008). Six years after pleading guilty, the defendant moved pursuant to Mass.R.Crim.P. 30(a), as appearing in 435 Mass. 1501 (2001), to vacate and dismiss his convictions on indictments no. 002 and no. 004, because they were duplicative of indictment no. 001; to vacate his conviction on indictment no. 006 because it did not state a crime; and to vacate his conviction on indictment no. 008 because it was ambiguous.
1. Background. The facts admitted to by the defendant at his plea hearing are as follows. In January, 2002, the defendant was stopped by Officer Jason Able of the Marshfield police department because one of the tail lights on his red Chevrolet Caprice automobile was out. When Able approached the car, he noticed that the defendant was arguing with his passenger, Loma Hanley. Before Able reached the driver’s side window, the defendant rapidly accelerated, turned onto Route 139, and cut off traffic in the process.
As the defendant drove westbound, he swerved into oncom
When the defendant attempted to turn off Route 3 onto Route 228, he lost control of his car. The car became airborne, hit a tree, and burst into flames. The car came to rest in a ravine, and the defendant either was able to get out of the car or he had been ejected. The defendant’s passenger, Loma Hanley, died in the crash. After the fire was extinguished, she was found in the front passenger seat with her seatbelt still fastened. She was twenty-three years old.
At the time of the accident, the defendant’s license had been suspended based on a prior conviction of operating under the influence, and his license had been suspended in the past due to his other “numerous” convictions. The evidence would have also shown that the defendant knew he was being pursued by the police and that he failed to stop.
2. Discussion, a. Elements vs. conduct. The defendant claims that the judge erred in refusing to dismiss his motor vehicle homicide and his operating to endanger convictions because they are duplicative of his manslaughter conviction. We disagree. In support of his claim, the defendant relies on Commonwealth v. Jones, 382 Mass. 387, 394 (1981), where the Supreme Judicial Court held that although the defendant’s conviction of motor vehicle homicide was not a lesser included offense of his manslaughter conviction, i.e., each offense contained an element that the other did not, the court nonetheless determined that these offenses were “sufficiently closely related so as to preclude punishment on both.”
The origin of this conduct-based approach can be traced to dictum in Commonwealth v. St. Pierre, 377 Mass. 650, 662-663 (1979), where the court remarked that “there may be an element of harassment in the use of multiple charges in the same prosecution when they open up a prospect of ‘double’ punishment for crimes not duplicative in the technical sense, but so closely related in fact as to constitute in substance but a single crime.” Jones and St. Pierre represented departures from the
The initial problem with the defendant’s claim is that the siren song of the conduct-based approach has been silenced. In Commonwealth v. Crocker, 384 Mass. 353, 360 (1981), decided eight months after Jones, the court held that “the prohibition against duplic[ative] convictions at a single criminal proceeding is properly limited to ensuring that the court does not exceed its legislative authorization by imposing multiple punishments for a single legislatively defined offense .... In order to determine whether the Legislature in a given situation has authorized conviction and sentence under two statutory offenses, the Morey test provides a fitting rule of interpretation.” In addition, the court in Crocker held that the conduct-based approach, to the extent that it has been incorporated into Massachusetts common-law rule, applies only to instances of successive prosecution, not multiple charges tried in a single proceeding. Id. at 359 n.7. Although Crocker did not expressly overrule Jones or St. Pierre, we have said that those cases have implicitly been repudiated. Commonwealth v. Arriaga, 44 Mass. App. Ct. 382, 388 (1998). See Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 704-713 (2009) (Cypher, 1, dissenting in part). See also Commonwealth v. Jones, 441 Mass. 73, 76 (2004) (the actual criminal conduct alleged is wholly irrelevant to the application of the Morey rule; rather, the elements of the crimes charged are considered objectively, without regard to the facts); Commonwealth v. Gallant, 65 Mass. App. Ct. 409, 414-415 (2006) (“[I]t is difficult to see how such a conduct-based test could ever possibly mesh with the Morey standard, [because] the Morey rule only applies to situations in which two or more convictions arise out of precisely the same act, let alone acts ‘closely related in fact’ ”).
To the extent there remained any uncertainty about the continuing vitality of the conduct-based approach in a single proceeding, the Supreme Judicial Court recently put it to rest. In Com
Specifically addressing the conduct-based seed planted in St. Pierre, the court clarified that nowhere in that case did the court “suggest that the traditional elements-based approach enunciated in Morey should be supplemented with or replaced by a conduct-based approach for analyzing purported duplicative offenses.” Commonwealth v. Vick, supra. In fact, the only time “[t]he question whether two offenses are ‘so closely related in fact as to constitute in substance but a single crime,’ Commonwealth v. St. Pierre, supra [at 662-663], becomes pertinent in a single criminal proceeding [is when] one crime is a lesser
b. Pleading guilty. An additional circumstance that sets this case apart from Commonwealth v. Jones, 382 Mass. at 394, and also disposes of the defendant’s remaining claims, is that Jones was convicted after trial, and here the defendant pleaded guilty. “A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.” United States v. Broce, 488 U.S. 563, 569 (1989). Commonwealth v. Mazzantini, 74 Mass. App. Ct. 915, 915 (2009). Because the defendant pleaded guilty to three indictments “with facial allegations of distinct offenses,” he conceded that he committed three separate crimes. United States v. Broce, supra at 570. To the extent the defendant believed the Legislature did not intend that he be punished for motor vehicle homicide, negligent operation as
The defendant’s remaining claims are similarly afflicted. The first of these is the defendant’s claim that indictment no. 006, which charged him with operating a motor vehicle after suspension or revocation of a license for operating under the influence in violation of G. L. c. 90, § 23, does not allege a crime. The defendant’s last claim is that indictment no. 008, which charged the defendant with operating a motor vehicle after his license had been suspended or revoked, is “inherently ambiguous and prejudicial” for listing four predicate offenses in the alternative. We disagree with both claims.
“An indictment shall not be dismissed or be considered defective or insufficient if it is sufficient to enable the defendant to understand the charge and to prepare his defense; nor shall it be considered defective or insufficient for lack of any description or information which might be obtained by requiring a bill of particulars.” Commonwealth v. Gonzalez, 22 Mass. App. Ct. 274, 284 (1986), quoting from G. L. c. 277, § 34. See Commonwealth v. Hrycenko, 417 Mass. 309, 313 n.5 (1994). To the extent the defendant believed that indictment no. 006 did not allege a crime, or that indictment no. 008 was fatally ambiguous, he could have moved to dismiss them pursuant to Mass.R.Crim.P. 13(c), as appearing in 442 Mass. 1516 (2004), and G. L. c. 277, § 47A. Also, to the extent he failed to comprehend the nature of the charges to properly prepare his defense to either indictment, he could have sought a bill of particulars pursuant to Mass.R.Crim.P. 13(b), as appearing in 442 Mass. 1516 (2004).
Order denying motion for post-conviction relief affirmed.
Indictments no. 002, 005, 007, and 008 were placed on file with the defendant’s consent. “Ordinarily, we do not consider appeals from indictments placed on file, . . . but in the interest of efficiency and in a suitable case we may choose to do so.” Commonwealth v. Chappee, 397 Mass. 508, 523 (1988). This is such a case.
See Commonwealth v. St. Pierre, 377 Mass. at 662-663; Commonwealth v. Wolinski, 431 Mass. 228, 238-239 (2000); Commonwealth v. Jones, 441 Mass. at 76; Commonwealth v. Keohane, 444 Mass. 563, 574-575 (2005); Commonwealth v. Cabrera, 449 Mass. 825, 827-828 (2007). This court has, in the past, left the same misimpression. See Commonwealth v. Morin, 52 Mass. App. Ct. 780, 787-788 (2001); Commonwealth v. Pileeki, 62 Mass. App. Ct. 505, 513-514 (2004); Commonwealth v. Kegler, 65 Mass. App. Ct. 907, 909 (2006); Commonwealth v. Boyd, 73 Mass. App. Ct. 190, 194-195 (2008); Commonwealth v. Niels N., 73 Mass. App. Ct. at 697-699.
The defendant’s claim that his operating to endanger conviction is duplicative of his conviction of motor vehicle homicide by reckless or negligent operation stands on a different footing because the former is a lesser-included offense of the latter. See Commonwealth v. Constantino, 443 Mass. 521, 526 (2005); Commonwealth v. Williams, 73 Mass. App. Ct. 833, 838 (2009). However, the defendant’s convictions of two cognate offenses may be sustained here because the facts to which he admitted during his guilty plea included different acts to support each conviction, and he does not claim otherwise. See Commonwealth v. Berrios, 71 Mass. App. Ct. 750, 753 (2008). Specifically, when first approached by Officer Able, the defendant’s act of rapidly accelerating and cutting off traffic on Route 139 is separate from his reckless act of attempting to leave Route 3 at a high rate of speed, which caused his car to become airborne and resulted in Hanley’s death.
To the extent the defendant’s claim can be construed as jurisdictional, and thus not waived by his guilty plea, see Commonwealth v. Palladino, 358 Mass. 28, 31 (1970); Commonwealth v. Wilson, 72 Mass. App. Ct. 416, 417-418 (2008), we note that indictment no. 006 properly alleged a crime. Contrary to the defendant’s claim, the indictment properly alleged operation on a public way, and there was no requirement that it specify what substance the defendant was operating under the influence of when his license was suspended or revoked. A complaint or indictment is not subject to dismissal “if the offense is charged with sufficient clarity to show a violation of law and to permit the defendant to know the nature of the accusation against him.” Commonwealth v. Fernandes, 430 Mass. 517, 520 (1999), cert. denied sub nom. Martinez v. Massachusetts, 530 U.S. 1281 (2000), quoting from Commonwealth v. Green, 399 Mass. 565, 566 (1987). “It is not necessary for the Commonwealth to set forth in the complaint or indictment every element of the crime to withstand a motion to dismiss.” Ibid. In addition, the indictment’s caption put him on sufficient notice that he was being charged with a violation of G. L. c. 90, § 23, see Commonwealth v. Fernandes, supra at 519, and there was no need to cite G. L. c. 90, § 24, in order to allege a crime.
Finally, we note, on an alternative basis, that the defendant’s challenge to indictment no. 008 also lacks merit. An indictment, such as this, may properly set forth four alternative bases supporting the charge. The use of the disjunctive in this manner was proper. See Commonwealth v. Murphy, 415 Mass. 161, 164 (1993).
Reference
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- Commonwealth v. Joseph H. Buckley
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