Com. v. Hendricks

• Decision Date: 31 July 2008
• Docket Number: SJC-10152
• Citation: Com. v. Hendricks, 891 N.E.2d 209, 452 Mass. 97 (Mass. 2008)
• Court: Supreme Judicial Court of Massachusetts
• Parties: COMMONWEALTH v. Thomas HENDRICKS.

891 N.E.2d 209

452 Mass. 97

COMMONWEALTH v. Thomas HENDRICKS.

SJC-10152

Supreme Judicial Court of Massachusetts, Barnstable.

Argued May 7, 2008.

Decided July 31, 2008.

Allison J. Koury for the defendant.

Julia K. Holler, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

CORDY, J.

Having been convicted of reckless endangerment of a child in violation of G.L. c. 265, § 13L, Thomas Hendricks challenges the constitutionality of the recently enacted statute, claiming that it is vague and overbroad as applied to the circumstances of his case.¹ He also contends that there was insufficient evidence to sustain his conviction, and that his waiver of the right to a jury trial was not made knowingly and voluntarily. We affirm.

1. Background. On September 8, 2004, at approximately 9:45 P.M., while performing "stationary radar" in Mashpee, Officer Jason Arthurs observed Hendricks driving a grey sedan. From personal knowledge, Arthurs knew that Hendricks's driver's license had been revoked. He activated the emergency lights on his police cruiser in an attempt to pull over Hendricks's vehicle. Instead of pulling over, Hendricks accelerated and turned onto Route 151.

Arthurs proceeded to follow Hendricks with his emergency lights and siren blaring. When Arthurs was approximately twenty feet behind Hendricks's vehicle, the vehicle "rocketed forward," reaching a speed of approximately sixty-five miles per hour on roadways with posted speed limits of thirty and forty miles per hour.

Hendricks turned onto Algonquin Road, an unpaved roadway with a number of potholes that takes a sharp right by a pond and then narrows substantially. Hendricks continued to travel at a high rate of speed. Arthurs reduced his speed to thirty-five miles per hour because of the "terrible" road conditions, and fell further behind Hendricks, keeping his brake lights in sight.

Algonquin Road comes to a dead end from which a dirt pathway extends into the woods. At the dead end, there are rocks on either side of the roadway, and an embankment between them. The embankment's slope is approximately two feet high. Arthurs observed Hendricks's vehicle pass between the rocks, go up and over the embankment, and proceed down the dirt pathway into the woods. Arthurs called for backup, parked his cruiser, and proceeded to pursue Hendricks on foot.

Hendricks's vehicle was located, unoccupied, approximately 200 to 300 yards into the woods. Arthurs and a K-9 officer with his dog began to track Hendricks. They located him further in the woods, lying on his back, with his three year old child on his chest. Hendricks told them that he had his child with him and asked them not to send the dog. They complied, and Hendricks surrendered his child to the officers and followed their orders. While they were walking through the woods, Hendricks admitted to Arthurs that he should not have been driving like that with his daughter in the vehicle and that he should have stopped.

In addition to being charged with reckless endangerment of a child, Hendricks was charged with speeding and a number of criminal motor vehicle violations, including refusing to stop for the police, G.L. c. 90, § 25; operating a motor vehicle with a suspended license, G.L. c. 90, § 23; and reckless operation of a motor vehicle, G.L. c. 90, § 24(2) (a). After a jury-waived trial, the judge found Hendricks not guilty of operating a motor vehicle with a suspended license and of the reckless operation of a motor vehicle,² guilty of reckless endangerment of a child and of failing to stop for the police, and responsible on the speeding charge.

2. Discussion. a. Reckless endangerment of a child. General Laws c. 265, § 13L, inserted by St.2002, c. 322, § 2, became effective on December 11, 2002, and provides in relevant part:

"Whoever wantonly or recklessly engages in conduct that creates a substantial risk of serious injury or sexual abuse to a child or wantonly or recklessly fails to take reasonable steps to alleviate such risk where there is a duty to act shall be punished by imprisonment in the house of correction for not more than 2 1/2 years....

"For the purposes of this section, such wanton or reckless behavior occurs when a person is aware of and consciously disregards a substantial and unjustifiable risk that his acts, or omissions where there is a duty to act, would result in serious bodily injury or sexual abuse to a child. The risk must be of such nature and degree that disregard of the risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation."

Hendricks essentially claims that the statute was intended to apply to a person whose conduct exposes a child to (or fails to protect a child from) the substantial risk of serious injury only from physical or sexual abuse, and not from other sources of harm. He further contends that if his conduct, which he describes as "speeding" and "failing to stop for police," is determined to constitute reckless endangerment under the statute, then the statute is unconstitutionally vague in that it failed to provide adequate notice of that consequence, and sufficiently explicit standards for its application. We disagree.

As to the reach of the statute, Hendricks relies on the preamble to its enactment, St.2002, c. 322, § 1, which contains legislative findings with regard to the "growing numbers of complaints concerning the sexual abuse of minors by non-custodial adults who have been recklessly placed or retained in positions of trust and authority," and the "necessity to protect children from physical and sexual abuse by penalizing reckless behavior that creates a risk of serious physical injury or sexual abuse to a child." Id.³ While we acknowledge that the preamble contains these findings and that the Legislature intended to penalize conduct that creates a substantial risk of physical or sexual abuse, the plain language of the statute enacted sweeps more broadly to proscribe all wanton and reckless conduct that creates a "substantial [and unjustifiable] risk of serious bodily injury" to a child. There is no ambiguity in the statutory language that would lead us to limit its application in the manner Hendricks suggests. See Commissioner of Correction v. Superior Court Dep't of the Trial Court for the County of Worcester, 446 Mass. 123, 124, 842 N.E.2d 926 (2006) (where language is clear and unambiguous, it is conclusive as to legislative intent). Nor does its application as written lead to an irrational result. See Commonwealth v. McLeod, 437 Mass. 286, 290, 771 N.E.2d 142 (2002), quoting Sullivan v. Brookline, 435 Mass. 353, 360, 758 N.E.2d 110 (2001) ("statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result"); Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 355, 294 N.E.2d 393 (1973) (we must avoid construction of statutory language that produces irrational results). It is perfectly reasonable for the Legislature to protect children from the wanton and reckless acts of adults that pose serious and substantial risks to children's physical safety. If the Legislature had intended a narrower set of protections, it readily could have drafted the statute to accomplish that more limited objective. See, e.g., Commonwealth v. Cahill, 442 Mass. 127, 134, 810 N.E.2d 1196 (2004) ("If the Legislature had intended for the amended paragraphs of [the statute] governing license revocation to apply to second offenders ... it easily could have included language to that effect"); Brittle v. Boston, 439 Mass. 580, 590, 594, 790 N.E.2d 208 (2003), quoting Commonwealth v. McLeod, supra at 294, 771 N.E.2d 142 ("We will not add words to a statute that the Legislature did not put there, either by inadvertent omission or by design"; restrictive language of statute demonstrated that Legislature purposely drafted statute with "narrow focus").

The questions we must therefore resolve are whether the statute "provides a reasonable opportunity for a person of ordinary intelligence" to know that the type of conduct in which Hendricks engaged was prohibited, Commonwealth v Jasmin, 396 Mass. 653, 655, 487 N.E.2d 1383 (1986) and whether it provides "comprehensible standards that limit prosecutorial and judicial discretion" and thus avoid discriminatory or arbitrary enforcement. Commonwealth v. Pagan, 445 Mass. 161, 173, 834 N.E.2d 240 (2005). See Commonwealth v. Gallant, 373 Mass. 577, 580, 369 N.E.2d 707 (1977). If the answer to either question is "no," the statute will fail under the vagueness doctrine, which is grounded in the due process guarantees of the Massachusetts Declaration of Rights and the United States Constitution. Commonwealth v. Jasmin, supra ("A law is unconstitutionally vague and denies due process of law if it fails to provide a reasonable opportunity for a person of ordinary intelligence to know what is prohibited or if it does not provide explicit standards for those who apply it"). However, as we have explained, that "doctrine requires simply that the statute be drafted in such form as to present `ascertainable standards of guilt,'" Opinion of the Justices, 378 Mass. 822, 827, 393 N.E.2d 313 (1979), quoting Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 92 L.Ed. 840 (1948); and is not "designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited." Commonwealth v. Gallant, supra, quoting Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). In other words, a law is "not vague ... if it requires a person to conform his conduct to an imprecise but comprehensible...