Com. v. Buckley

• Decision Date: 15 January 2010
• Docket Number: No. 08-P-1507.,08-P-1507.
• Citation: 920 N.E.2d 73,76 Mass. App. Ct. 123
• Parties: COMMONWEALTH v. Joseph H. BUCKLEY.
• Court: Appeals Court of Massachusetts

920 N.E.2d 73

76 Mass. App. Ct. 123

COMMONWEALTH v. Joseph H. BUCKLEY.

No. 08-P-1507.

Appeals Court of Massachusetts, Plymouth.

Argued November 17, 2009.

Decided January 15, 2010.

Michael J. Hickson for the defendant.

Carolyn A. Burbine, Assistant District Attorney, for the Commonwealth.

Present: BERRY, GRAHAM, & MEADE, JJ.

MEADE, J.

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, § 24G(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 The judge who accepted the defendant's guilty pleas denied the motion, and the defendant now appeals. We affirm.

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, Lorna 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 oncoming traffic in an effort to pass other westbound drivers. During one such maneuver, the defendant struck an oncoming vehicle and damaged it. With Officer Able in pursuit, the defendant entered Route 3 and traveled in the breakdown lane at speeds between ninety and one hundred miles per hour.

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, Lorna 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, 416 N.E.2d 502 (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, 387 N.E.2d 1135 (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 traditional elements-based test of Morey v. Commonwealth, 108 Mass. 433 (1871). "The traditional rule in Massachusetts, as embodied in Morey, [supra], and its progeny, is that a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not." Commonwealth v. Valliere, 437 Mass. 366, 371, 772 N.E.2d 27 (2002).

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, 424 N.E.2d 524 (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, 424 N.E.2d 524. 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, 691 N.E.2d 585 (1998). See Commonwealth v. Niels N., 73 Mass.App.Ct. 689, 704-713, 901 N.E.2d 166 (2009) (Cypher, J., dissenting in part). See also Commonwealth v. Jones, 441 Mass. 73, 76, 803 N.E.2d 319 (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, 840 N.E.2d 998 (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 Commonwealth v. Vick, 454 Mass. 418, 431, 910 N.E.2d 339 (2009), the court held that the traditional, element-based Morey rule "remains the standard for determining whether multiple convictions stemming from one criminal transaction are duplicative." The "elements-based approach recognizes `the role of the Legislature as the primary body that creates, and defines, crimes, and the fact that, in punishing related offenses, the Legislature usually intends to further distinct policies.'" Id. at 431-432, 910 N.E.2d 339, quoting from Commonwealth v. Jones, 441 Mass. at 75, 803 N.E.2d 319. While the court acknowledged that several of its cases left the appearance of a jurisprudential shift away from a pure analysis of the elements to permit a conduct-based analysis of the facts of a particular case to assess whether closely related acts constituted but a single offense,<sup>2</sup> it made clear that it was not the court's intention to do so. Commonwealth v. Vick, supra at 433-434, 910 N.E.2d 339. Rather, it continued to adhere to the view it had expressed in Crocker, where it held that "a departure from the elements-based Morey test, in favor of a judicial assessment of the evidence introduced in a single criminal trial of multiple offenses, `runs the risk of unnecessary intrusion into the legislative prerogative to define crimes and fix punishments.'" Id. at 434, 910 N.E.2d 339, quoting from Commonwealth v. Crocker, 384 Mass. at 359, 424 N.E.2d 524.

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, 387 N.E.2d 1135], becomes pertinent in a single criminal proceeding [is when] one crime is a lesser included offense of the other, or where there are multiple counts of the same offense." Commonwealth v. Vick, supra at 435, 910 N.E.2d 339. See Commonwealth v. Kulesa, 455 Mass. 447, 450-451, 917 N.E.2d 762 (2009); Commonwealth v. Putnam, 75 Mass.App.Ct. 472, 480-481, 914 N.E.2d 969 (2009). See also United States v. Dixon, 509 U.S. 688, 704-711, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (overruling the unprincipled, confusing, and unstable conduct-based test for double jeopardy violations announced in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 [1990], in favor of the time-tested elements-based approach derived from Morey)....