Com. v. Benson

• Decision Date: 15 June 1983
• Citation: 451 N.E.2d 118,389 Mass. 473
• Parties: COMMONWEALTH v. Albert B. BENSON et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 118

451 N.E.2d 118

389 Mass. 473

COMMONWEALTH v. Albert B. BENSON et al. ¹

Supreme Judicial Court of Massachusetts Suffolk.

Argued Feb. 8, 1983.

Decided June 15, 1983.

Murray P. Reiser, Boston (Eric H. Karp, Boston, with him), for Viktor E. Benson.

John C. Martland, Boston, for Albert B. Benson.

Martin E. Levin, Asst. Atty. Gen., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

LIACOS, Justice.

On January 11, 1979, Albert and Viktor Benson were indicted for conspiracy to commit arson. On May 17, 1982, the defendants filed a motion in the Superior Court to dismiss the indictment. They alleged that, having been acquitted previously on the substantive charges of arson and of breaking and entering in the nighttime with the intent to commit arson, the doctrine of collateral estoppel bars the prosecution of the defendants for the crime of conspiracy to commit arson. In the alternative, the defendants allege that the Commonwealth is precluded by the principles of collateral estoppel from relitigating all facts and issues necessarily determined in their favor at the prior trial. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Commonwealth v. Lopez, 383 Mass. 497, 420 N.E.2d 319 (1981). A motion to reserve and report to the Appeals Court the defendants' motion to dismiss the indictment was filed and granted by a judge of the Superior Court. Mass.R.Crim.P. 34, 378 Mass. 905 (1979). We transferred the report here on our own motion. ² The case has been continued for trial pending our decision.

While the defendants correctly state the proposition that the principles of collateral estoppel are embodied in the Fifth Amendment guarantee against double jeopardy, Ashe v. Swenson, supra, and are therefore enforceable against the Commonwealth through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the defendants have failed to satisfy their burden of showing that collateral estoppel is applicable in these circumstances. Commonwealth v. Lopez, supra. We therefore conclude that the motion to dismiss the indictment should be denied.

We summarize the facts. On the evening of December 20, 1978, State police observed Albert and Viktor Benson entering an office building in Boston. Shortly after they left the building, it burst into flames. The Bensons were arrested and indicted on identical charges of arson, breaking and entering in the nighttime with the intent to commit arson, and conspiracy to commit arson. The Commonwealth first prosecuted the defendants for the substantive crimes. ³ The jury returned general verdicts acquitting the defendants of the substantive crimes of arson, and breaking and entering with the intent to commit arson.

The Commonwealth subsequently undertook to renew proceedings on the conspiracy indictment. In October, 1979, the defendants filed their first motion to dismiss the conspiracy indictment based on the Commonwealth's acknowledgment that (1) it had no direct evidence of the existence of a conspiracy, (2) it had no evidence that a conspiracy had occurred on any date other than that of the fire, and (3) it could not identify any alleged coconspirators other than the defendants. A Superior Court judge denied the relief sought by the defendants.

Through later pleadings, filed on March 14, 1980, the Commonwealth indicated that it intended to introduce evidence of three other fires and the alleged involvement of the defendants therein. The defendants, in response, successfully moved for an order barring the Commonwealth from introducing such evidence. The defendants also filed a motion in limine seeking to preclude the Commonwealth from relitigating, at the conspiracy trial, all facts and issues necessarily determined against it by the prior acquittal of the defendants on the substantive charges. A renewed motion to dismiss was filed also on the same principles of collateral estoppel. The trial memorandum filed by the Commonwealth at the request of the court summarized the evidence the Commonwealth intends to introduce at the conspiracy trial. ⁴ Both motions were denied. Thereafter the defendants filed an application with a single justice of this court for leave to file an interlocutory appeal in the Supreme Judicial Court. After a hearing, the application was denied without prejudice, allowing the defendants to renew their contentions during the course of the trial.

The defendants then filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. §§ 2241 and 2254 (1976), and a complaint for declaratory and injunctive relief, pursuant to 42 U.S.C. § 1983 (1976 & Supp. V 1981), in the United States District Court for the District of Massachusetts. Both remedies sought were grounded on the claim of collateral estoppel. Concluding that the Bensons had exhausted their State remedies, the United States District Court for the District of Massachusetts nevertheless denied the petition for habeas corpus and complaint for injunctive relief, but declared that "the Commonwealth will be foreclosed from claiming or arguing that [the Bensons] set the fire in the building or that they did aid, counsel or procure the burning of the building. However, that alone would not be enought to bar prosecution of the conspiracy indictment ...." Amendment of memorandum of decision dated February 26, 1981 (March 6, 1981), for Benson v. Superior Court Dep't of the Trial Court, 507 F.Supp. 975, 978 (D.Mass.1981) (hereinafter cited as Benson I ). On appeal by the defendants of the denial of the writ of habeas corpus, the United States Court of Appeals for the First Circuit vacated in part and affirmed in part the District Court judge's ruling. Benson v. Superior Court Dep't of the Trial Court, 663 F.2d 355, 359 (1st Cir.1981) (hereinafter cited as Benson II ). Affirming the denial of the request for injunctive relief and the writ of habeas corpus, the First Circuit Court of Appeals vacated that part of the District Court judge's decision which foreclosed the Commonwealth from offering specific evidence at the trial on the conspiracy charge, holding that the issue was not ripe because the court did not know how the State would marshal its evidence. ⁵ Id. at 360-361.

The defendants then filed a petition for relief by the Supreme Judicial Court pursuant to its supervisory power. G.L. c. 211, § 3. After a hearing, a single justice continued the action, pending the defendants' filing a motion in the Superior Court to reserve and report a motion to dismiss. On May 17, 1982, the defendants filed with the Superior Court the motion to dismiss now before us. It is this motion which is here on the reservation and report.

The parties argue a variety of legal issues. We consider only those dispositive of the report. Collateral estoppel is an established rule of criminal law. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Commonwealth v. Lopez, 383 Mass. 497, 420 N.E.2d 319 (1981). Collateral estoppel "means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, supra 397 U.S. at 443, 90 S.Ct. at 1194. See Commonwealth v. Scala, 380 Mass. 500, 503, 404 N.E.2d 83 (1980). The doctrine of collateral estoppel may work in two ways. First, it may bar totally a subsequent prosecution if one of the issues necessarily decided at the first trial is an essential element of the alleged crime in the second trial. Second, even if a prosecutor may proceed to a second trial, the doctrine may bar the introduction of certain facts determined in the defendant's favor at the first trial. See United States v. Lee, 622 F.2d 787, 790 (5th Cir.1980). The doctrine of collateral estoppel will preclude either the subsequent prosecution or the introduction or argument of certain facts, only if the jury could not have based their verdict rationally on an issue other than the one the defendant seeks to foreclose. See Ashe v. Swenson, supra 397 U.S. at 444, 90 S.Ct. at 1194. Whenever the doctrine of collateral estoppel is raised by a defendant, the task of the court is to decide exactly what issues were, or should have been, determined at the first trial. ⁶ See Sealfon v. United States, 332 U.S. 575, 578-579, 68 S.Ct. 237, 239-40, 92 L.Ed. 180 (1948). Such inquiry must be conducted in a realistic and practical manner by reviewing the proceedings as a whole. See Ashe v. Swenson, supra.

We first consider whether the acquittal of the defendants on the substantive charges of arson, and breaking and entering with the intent to commit arson, bars completely the prosecution for a conspiracy to commit arson. We conclude that the subsequent prosecution for conspiracy is not barred.

It long has been settled that "[a] 'substantive offence and a conspiracy to commit that offence' each constitute a 'distinct offence and each may be separately punished.' " Commonwealth v. French, 357 Mass. 356, 393, 259 N.E.2d 195 (1970), judgments vacated as to death penalty sub nom. Limone v. Massachusetts, 408 U.S. 936, 92 S.Ct. 2848, 33 L.Ed.2d 754 (1972), quoting Commonwealth v. Stasiun, 349 Mass. 38, 48, 206 N.E.2d 672 (1965). See Commonwealth v. Gallarelli, 372 Mass. 573, 576-577, 362 N.E.2d 923 (1977); Commonwealth v. Shea, 323 Mass. 406, 411, 82 N.E.2d 511 (1948); Sealfon v. United States, supra 332 U.S. at 578, 68 S.Ct. at 239. The judge at the first trial properly instructed the jury as to the elements of arson. He stated: "Whoever willfully and maliciously sets fire to, burns or causes to be burned or whoever aids, causes or procures the burning of a building, whether the same is the property of his or others, whether occupied, unoccupied or vacant, shall be guilty of ... arson." See G.L. c. 266, § 2; Commonwealth v. Niziolek, 380 Mass. 513, 526, 404 N.E.2d 643 (1980). The...