Com. v. Arriaga

• Citation: 691 N.E.2d 585,44 Mass.App.Ct. 382
• Decision Date: 10 March 1998
• Docket Number: No. 96-P-272,96-P-272
• Parties: COMMONWEALTH v. Heriberto ARRIAGA.
• Court: Appeals Court of Massachusetts

Page 585

691 N.E.2d 585

44 Mass.App.Ct. 382

COMMONWEALTH v. Heriberto ARRIAGA.

No. 96-P-272.

Appeals Court of Massachusetts Hampden.

Argued Nov. 12, 1997.

Decided March 10, 1998.

Further Appellate Review Denied April 28, 1998.

Brownlow M. Speer, Committee for Public Counsel Services, Boston, for defendant.

Lori K. Odierna, Assistant District Attorney, for the Commonwealth.

Before BROWN, SMITH and LAURENCE, JJ.

BROWN, Justice.

The defendant pleaded guilty to indictments charging assault and battery by means of a dangerous weapon, G.L.c. 265, § 15A, and armed assault with intent to murder, G.L. c. 265, § 18. He received consecutive sentences as follows: a committed State prison sentence with respect to the former offense, and a sentence of probation with respect to the latter. The defendant served his full State prison sentence (i.e., he was not paroled), was released from custody, and began to serve his probation sentence. After violating the terms of his probation, the defendant was surrendered, and a committed State prison sentence was imposed. On appeal, the defendant alleges that the initial consecutive sentences for his two convictions constituted unlawful duplicative punishment under both State and Federal double jeopardy principles. As a result, the defendant argues, both his probation sentence and the committed sentence that he received after his surrender must be set aside. We reject the defendant's claim and affirm the order revoking probation and imposing a prison sentence.

We briefly summarize the facts adduced at the plea hearing. The defendant and the victim were husband and wife. During a fight in their shared apartment, the defendant attacked the victim with a screwdriver. He stabbed her several times, and then threw the victim onto the floor. As the victim scrambled to her feet, the defendant grabbed her and stabbed her several more times. The victim made a second effort to flee, but the defendant held her and continued to stab her. Eventually, the defendant released the victim and left the apartment. An ambulance was summoned by a neighbor, and the victim was taken to a nearby hospital. The victim suffered fifteen to twenty separate stab wounds on her face, head, leg, arms, and stomach.

We include such other relevant facts as are necessary in our analysis of the legal issue presented.

At the core here is the issue whether the defendant's State or Federal double jeopardy protections were violated--specifically, whether the consecutive sentences imposed by the trial judge amount to improper multiple punishments for what the defendant asserts is a single criminal act. Before we begin our analysis, we briefly review the relevant governing law.

Both the Massachusetts common law double jeopardy rule ¹ and the double jeopardy clause of the Fifth Amendment to the United States Constitution protect criminal defendants against three specific abuses: "a second prosecution for the same offense after acquittal[;] ... a second prosecution for the same offense after conviction[;] [a]nd [unless expressly authorized by the Legislature[ ²]] ... multiple punishments for the same offense" (emphasis supplied). North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Luk v. Commonwealth, 421 Mass. 415, 419, 658 N.E.2d 664 (1995).

Absent from the above list of proscribed types of prosecutions is any prohibition against simultaneous prosecutions for the "same" offense. As the Supreme Court stated in Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425 (1984), "[w]hile the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting [a defendant] for such multiple offenses in a single prosecution" (emphasis supplied). Applying this rule in Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), the Supreme Court authorized a simultaneous trial on charges of violating 18 U.S.C. § 1955 (1994), the gambling provisions of the Organized Crime Control Act of 1970, and conspiracy to commit the same crime. "We do not consider initial dismissal of the conspiracy charge to be required [here]. When both charges are considered at a single trial, the real problem is the avoidance of dual punishment. This problem is analogous to that presented by the threat of conviction for a greater and a lesser included offense, and should be treated in a similar manner." Id. at 786 n. 18, 95 S.Ct. at 1294 n. 18. See Ohio v. Johnson, 467 U.S. at 500, 104 S.Ct. at 2541 ("the State is not prohibited by the Double Jeopardy Clause from charging respondent with greater and lesser included offenses and prosecuting those offenses in a single trial"). See also United States v. Gaddis, 424 U.S. 544, 550, 96 S.Ct. 1023, 1027, 47 L.Ed.2d 222 (1976); Brown v. Ohio, 432 U.S. 161, 165-169, 97 S.Ct. 2221, 2225-2228, 53 L.Ed.2d 187 (1977).

Consonant with these principles, it has not been uncommon in Massachusetts for a defendant to be indicted and tried in a single proceeding for multiple crimes that indisputably constitute the "same offense" for double jeopardy purposes. See, e.g., Commonwealth v. Chappee, 397 Mass. 508, 523, 492 N.E.2d 719 (1986); Commonwealth v. Figueroa, 412 Mass. 745, 745-746 & n. 1, 592 N.E.2d 1309 (1992); Commonwealth v. Owens, 414 Mass. 595, 608, 609 N.E.2d 1208 (1993); Commonwealth v. Nascimento, 421 Mass. 677, 683, 659 N.E.2d 745 (1996) (involving simultaneous prosecution for stealing and receiving the same stolen property); Commonwealth v. Filippidakis, 29 Mass.App.Ct. 679, 679 n. 1, 564 N.E.2d 596 (1991) (involving a greater and a lesser included offense). While such duplicative charges, if pressed in successive trials, would violate the double jeopardy rule, there is no constitutional or common law infraction where (1) all of the indictments are tried in a single proceeding and (2) the defendant ultimately is not subjected to multiple penalties for the same offense. See Commonwealth v. DeCicco, 44 Mass.App.Ct. 111, 125-126, 688 N.E.2d 1010 (1998) (defendant may not be subjected to multiple punishments for possession of infernal machine, G.L. c. 266, § 102A, and the wilful throwing of explosives at or near persons or property, G.L. c. 266, § 102, where former is lesser included offense of latter).

In view of the foregoing, there is no question that this defendant lawfully was tried for violations of both G.L. c. 265, § 18, and G.L. c. 265, § 15A. The only open question then is whether his multiple sentences transgress either the Commonwealth's common law double jeopardy rule or the due process clause of the Fifth Amendment to the Federal Constitution, at least as that provision was construed at the time the offenses here were committed. Although acknowledging that the two crimes of which he was convicted have mutually exclusive elements and so neither is technically a lesser included offense of the other, the defendant contends that because both convictions are predicated upon the same conduct, the multiple convictions are nonetheless prohibited.

We turn first to the defendant's State common law claim. The traditional rule in Massachusetts, as embodied by Morey v. Commonwealth, 108 Mass. 433, 434 (1871), and its progeny, is that a defendant properly may be punished for two crimes arising out of a single course of conduct provided that each requires proof of an element that the other does not. See Kuklis v. Commonwealth, 361 Mass. 302, 306-307, 280 N.E.2d 155 (1972). See also Commonwealth v. Kiley, 373 Mass. 454, 461, 367 N.E.2d 837 (1977); Commonwealth v. Buckley, 410 Mass. 209, 222, 571 N.E.2d 609 (1991). So long as each offense includes an additional element that the other does not, "neither crime is a lesser-included offense of the other, and convictions on both are deemed to have been authorized by the Legislature and hence not duplic[ative]." Commonwealth v. Jones, 382 Mass. 387, 393, 416 N.E.2d 502 (1981). Here, as already noted, the defendant was convicted of assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A, and armed assault with intent to murder, G.L. c. 265, § 18. The former requires proof of battery while the latter does not; and the latter offense demands proof of a specific intent to kill, while the former requires only a showing of a general intent. Under the rule in Morey, therefore, the defendant's multiple convictions and sentences were not improper.

The defendant argues, however, that the strict elements-based approach of Morey has been tempered somewhat over the years. He points, for example, to Commonwealth v. Woods, 414 Mass. 343, 347, 607 N.E.2d 1024, cert. denied, 510 U.S. 815, 114 S.Ct. 65, 126 L.Ed.2d 35 (1993), in which the Supreme Judicial Court stated, quoting from Grady v. Corbin, 495 U.S. 508, 521, 110 S.Ct. 2084, 2093, 109 L.Ed.2d 548 (1990), that in applying the double jeopardy rule "the critical inquiry is what conduct the State [must] prove, not the evidence the State will use to prove that conduct" (emphasis added in Woods ). The court in Woods, 414 Mass. at 348 n. 7, 607 N.E.2d 1024, also stated, "[i]n light of double jeopardy concerns, if two offenses describe the same conduct, then we presume that the Legislature did not intend consecutive punishments." Consistent with this language, the defendant asserts that the double jeopardy rule is offended where, as here, proof of precisely the same conduct results in multiple punishments.

In support of this approach, the defendant points chiefly to Commonwealth v. Jones, 382 Mass. at 394, 416 N.E.2d 502, in which the Supreme Judicial Court determined that, although vehicular homicide is not technically a lesser included offense of manslaughter (that is, each offense contains an element the other does not), the defendant could not receive sentences for both, since, in the particular circumstances of that case, the two...