Com. v. Catalina

• Decision Date: 03 July 1990
• Citation: 556 N.E.2d 973,407 Mass. 779
• Parties: COMMONWEALTH v. Louis CATALINA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 973

556 N.E.2d 973

407 Mass. 779

COMMONWEALTH v. Louis CATALINA.

Supreme Judicial Court of Massachusetts Essex.

Argued March 5, 1990.

Decided July 3, 1990.

S. Jane Haggerty, Asst. Dist. Atty., for the Com.

David A. Whynott, Gloucester, for defendant.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

GREANEY, Justice.

A grand jury in Essex County returned indictments against the defendant for involuntary manslaughter, G.L. c. 265, § 13 (1988 ed.), and for the unlawful distribution of a class A controlled substance, namely heroin, G.L. c. 94C, § 32(a ) (1988 ed.). The indictments stemmed from testimony before the grand jury of the defendant's sale of heroin to Grace Randazza and her death after use of the heroin. The defendant filed a motion to dismiss the manslaughter indictment on various grounds, including an assertion that the evidence presented to the grand jury was insufficient to justify the return of an indictment for involuntary manslaughter. See Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982). A judge of the Superior Court did not rule on the motion to dismiss. Instead, acting pursuant to Mass.R.Crim.P. 34, 378 Mass. 905-906 (1979), ¹ the judge reported the following two questions to the Appeals Court:

"1. Was the evidence presented to the Grand Jury sufficient to support an indictment for manslaughter under the principle of 'unlawful act-manslaughter'?

"2. Was the evidence presented to the Grand Jury sufficient to support an indictment for manslaughter under the principles of Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944) (wanton and reckless conduct)?" ²

We allowed a joint application for direct appellate review. We conclude that the defendant cannot be charged on the theory of unlawful-act manslaughter, but that the evidence before the grand jury is sufficient to support his prosecution under Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944).

The evidence presented to the grand jury, viewed in the light most favorable to the Commonwealth, indicated the following. On the afternoon of October 31, 1986, Christine Murphy Pratt, who was driving her automobile in Gloucester, picked up Peter Gabriele. Gabriele told Pratt that he was looking for heroin. Pratt advised Gabriele that the defendant had "some dope." Gabriele knew the defendant as a heroin dealer and had previously purchased heroin from him.

Pratt and Gabriele drove to a cafe where they picked up the defendant and Randazza. After Randazza and the defendant entered the vehicle, there was a conversation about purchasing heroin. The defendant told Randazza that he had "Seven-Life" heroin which was "very potent stuff [and] that she shouldn't fool around with it." The defendant told Randazza not to "do a whole one."

Pratt dropped Gabriele and Randazza at a sub shop and then drove the defendant a short distance to his house. The defendant quickly entered his house and returned to Pratt's car. On the return trip to the sub shop, Pratt purchased one bag of "Seven-Life" heroin from the defendant for $50.

Randazza and Gabriele were in the sub shop when the defendant returned. Randazza said to Gabriele, "[H]e's here, give me the money." Gabriele witnessed the defendant hand Randazza three bags of "Seven-Life" heroin. Randazza then handed Gabriele two bags for which he had paid $100. She kept one bag for herself.

Randazza was known to the defendant and to Pratt as a heroin user, and to Gabriele as a heroin addict. The defendant acknowledged that Randazza could not handle a full bag of "Seven-Life" heroin. The defendant further acknowledged that "he had helped [Randazza] from overdosing" on several occasions. The defendant also admitted to the police that he was aware of another overdose of "Seven-Life" heroin which had almost resulted in an individual's death.

Randazza returned home between 2:30 P.M. and 3:30 P.M. At approximately 5:30 P.M., a relative of Randazza found her unconscious in a bedroom in his home. His attempt at resuscitation was unsuccessful. Found near Randazza were a hypodermic needle, syringe and "cooker spoons," which were turned over to the police. An analysis of the spoons revealed heroin residue; no controlled substance was found in the needle and syringe.

Randazza was transported to the hospital where a nurse retrieved a glassine bag labeled "Seven-Life" from her dungaree pocket. The glassine bag was turned over to the police; analysis revealed that it contained heroin residue.

An autopsy was performed on the body of Randazza. According to the pathologist's report, Randazza died of "pulmonary congestion as a result of combined drug use." The combined drugs were heroin and alcohol. Although the alcohol alone would not have caused her death, according to the pathologist, the heroin found in her body was a lethal dose.

Unlawful-act manslaughter. The first reported question asks whether the evidence presented to the grand jury was sufficient to support the defendant's prosecution for manslaughter under the theory of so-called unlawful-act manslaughter. The indictment, however, reads in relevant part as set forth below, ³ and is framed in terms of whether the defendant committed manslaughter under the principles set forth in Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944). There is an obvious reason for this. Under our common law, involuntary manslaughter cannot be charged under the theory of unlawful-act manslaughter when a death occurred during the commission of a felony. The distribution of heroin, a class A controlled substance is a felony. See G.L. c. 94C, § 32(a ) (1988 ed.); G.L. c. 274, § 1 (1988 ed.). Involuntary manslaughter of the type mentioned in the first reported question presently pertains only to deaths occurring in the commission of misdemeanors or other acts malum in se, but not to the commission of felonies. See Commonwealth v. Campbell, 352 Mass. 387, 397, 226 N.E.2d 211 (1967).

A defendant cannot be prosecuted for an act which was not a crime when it was performed, Lembersky v. Parole Bd. of the Dep't of Correction, 332 Mass. 290, 293, 124 N.E.2d 521 (1955). An indictment which is narrow and precise in scope cannot be read to encompass a new and different definition of the crime that did not exist at the time of the occurrence which gave rise to it. For these reasons, unlawful-act manslaughter cannot be used as a basis to prosecute the defendant in this case.

The parties, however, have briefed and argued questions about the state of certain aspects of involuntary manslaughter after the decision in Commonwealth v. Matchett, 386 Mass. 492, 436 N.E.2d 400 (1982), which modified our common law of felony-murder. The issues they raise are important, and they deserve resolution in order to clarify the state of our manslaughter law. See Commonwealth v. Giang, 402 Mass. 604, 608, 524 N.E.2d 383 (1988); Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220 (1943). We proceed to consider them.

There is no statutory definition of manslaughter in Massachusetts; its elements are derived from common law. Commonwealth v. Godin, 374 Mass. 120, 126, 371 N.E.2d 438 (1977), cert. denied, 436 U.S. 917, 98 S.Ct. 2263, 56 L.Ed.2d 758 (1978). We have said that "[i]nvoluntary manslaughter is an unlawful homicide, unintentionally caused (1) in the commission of an unlawful act, malum in se, ⁴ not amounting to a felony nor likely to endanger life ..., or (2) by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct." Commonwealth v. Campbell, supra 352 Mass. at 397, 226 N.E.2d 211. The first type of manslaughter mentioned in this passage is sometimes called unlawful-act manslaughter, while the second type is manslaughter according to the principles stated in Commonwealth v. Welansky, 316 Mass. 383, 399, 55 N.E.2d 902 (1944). We have also consistently stated that " '[a] battery that causes death is manslaughter.' " Commonwealth v. Sheppard, 404 Mass. 774, 776, 537 N.E.2d 583 (1989), quoting Commonwealth v. Bianco, 388 Mass. 358, 362, 446 N.E.2d 1041 (1983). See Commonwealth v. Mahnke, 368 Mass. 662, 703, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959 (1976); Commonwealth v. Campbell, supra; Commonwealth v. Sostilio, 325 Mass. 143, 145, 89 N.E.2d 510 (1949); Commonwealth v. Gricus, 317 Mass. 403, 404 (1944); Commonwealth v. Welansky, supra 316 Mass. at 401, 55 N.E.2d 902. ⁵ This type of manslaughter recognizes the danger inherent in the intentional infliction of bodily harm associated with a criminal battery. ⁶

The present state of unlawful-act manslaughter suffers from the same problem that affected second degree felony-murder prior to the Matchett decision. In Commonwealth v. Matchett, supra 386 Mass. at 492, 436 N.E.2d 400, we moderated our previous common law felony-murder rule, which automatically imposed "criminal liability for homicide on all participants in a certain common criminal enterprise if a death occurred in the course of that enterprise." Id. at 502, 436 N.E.2d 400, quoting Commonwealth v. Watkins, 375 Mass. 472, 486, 379 N.E.2d 1040 (1978). We reasoned that "[a] felony-murder rule that punishes all homicides committed in the perpetration of a felony whether the death is intentional, unintentional or accidental, without the necessity of proving the relation of the perpetrator's state of mind to the homicide, violates the most fundamental principle of the criminal law--'criminal liability for causing a particular result is not justified in the absence of some culpable mental state in respect to that result,' " 386 Mass. at 506-507, 436 N.E.2d 400, quoting People v. Aaron, 409 Mich. 672, 719, 299 N.W.2d 304 (1980). Accordingly, we held that a felony must pass one of two tests before it may be used as a predicate offense for a second degree felony-murder prosecution. The felony must either (1) be "inherently dangerous,"...