Com. v. Jones
| Decision Date | 30 January 1981 |
| Citation | 382 Mass. 387,416 N.E.2d 502 |
| Parties | COMMONWEALTH v. Robert K. JONES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Edward F. Fitzgerald, East Bridgewater, for defendant.
Don L. Carpenter, Asst. Dist. Atty., for the Commonwealth.
Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS and ABRAMS, JJ.
This is an appeal from the defendant's convictions of manslaughter, homicide by motor vehicle, and operating to endanger. On July 16, 1977, at approximately 5:30 A.M., the defendant, Robert K. Jones, an off-duty Mansfield police officer, while driving his car on the mid-Cape Highway in Barnstable, travelled in the wrong direction in the eastbound lane and collided head-on with an approaching van. As a result of the collision, two people in the van were killed instantly, and a third died on July 31, 1977. Indictments were returned charging the defendant with three counts of manslaughter; three counts of vehicular homicide caused by the operation of a motor vehicle negligently so as to endanger public safety (G.L. c. 90, § 24G); and operating to endanger (G.L. c. 90, § 24(2)(a )). Prior to trial the defendant filed several motions to dismiss the indictments on multiple grounds. All the motions were denied. At trial before a jury in the Superior Court, the Commonwealth contended that the defendant was acutely intoxicated at the time of the accident. The defendant presented evidence that he was not criminally responsible because he was suffering from stage four dyssomnia (sleepwalking) at the time of the accident. He was found guilty on all counts and sentenced to concurrent terms in a house of correction. 1
On appeal to the Appeals Court, the defendant alleged eleven assignments of error concerning the denial of his motions to dismiss, procedures leading up to the indictments, and various events that occurred at trial. In a lengthy opinion, the Appeals Court affirmed the convictions. Commonwealth v. Jones, --- Mass.App. --- a, 399 N.E.2d 1087 (1980). We granted further appellate review. For the reasons stated below, we affirm the conviction of manslaughter and vacate the convictions of homicide by motor vehicle and of negligently operating to endanger.
Of the eleven issues originally raised by the defendant, this opinion addresses in depth only those two issues concerning the relationship between the statutory crime of homicide by motor vehicle and the common law crime of involuntary manslaughter caused by the reckless operation of a motor vehicle.
The defendant first contends that the Legislature's enactment of G.L. c. 90, § 24G, inserted by St. 1976, c. 227 (), 2 impliedly repealed the common law crime of involuntary manslaughter arising out of wanton or reckless operation of a motor vehicle. Under G.L. c. 90, § 24G, homicide by motor vehicle may be committed in any one of three ways. The defendant may cause a death by operating under the influence of intoxicating liquor; by operating negligently; or by operating recklessly. The three ways are stated disjunctively and create separate and independent grounds for prosecution. A finding of ordinary negligence suffices to establish a violation of the statute. Fadden v. Commonwealth, --- Mass. ---, --- b, 382 N.E.2d 1054 (1978). Commonwealth v. Burke, --- Mass.App. ---, --- - --- c, 383 N.E.2d 76 (1978).
The crime of manslaughter is not defined by statute in this Commonwealth. Two distinct forms of manslaughter have arisen as the product of common law development. Only one of these involuntary manslaughter is at issue in this case. Involuntary manslaughter is defined as an unlawful homicide unintentionally caused by an act that constitutes such a disregard of the probable harmful consequences to another as to amount to wanton or reckless conduct. Commonwealth v. Campbell, 352 Mass. 387, 397, 226 N.E.2d 211 (1967), and cases cited. 3
Before the enactment of G.L. c. 90, § 24G, in 1976, a defendant who had killed another person unintentionally by reason of his improper operation of a motor vehicle might have been prosecuted for any of a variety of misdemeanor offenses, such as driving so as to endanger, c. 90, § 24(2)(a ), 4 or for involuntary manslaughter, which carries a maximum penalty of twenty years imprisonment in State prison. G.L. c. 265, § 13. 5 The legislative history of § 24G indicates that prosecutors faced with this choice hesitated to proceed on a manslaughter theory, even when the facts so warranted, because of the reluctance of jurors to convict fellow drivers on such a serious charge. See memorandum from Mr. Endicott Peabody to the Judiciary Committee of the Massachusetts General Court, dated March 29, 1976, regarding 1976 S.Doc.No.703. On the other hand, the penalties established for the misdemeanor of driving to endanger did not seem commensurate with the crime of causing a death. Id. From this history, it seems clear that the purpose of c. 90, § 24G, was to provide a middle ground between the felony of manslaughter and the misdemeanor of driving so as to endanger. 6
The c. 90, § 24G, indictment returned in this case was framed exclusively under that portion of the statute which makes negligently operating to endanger culpable, and the defendant was prosecuted only on that theory. The defendant's prosecution on the manslaughter indictment was predicated on his wanton or reckless operation of a motor vehicle. It is the manslaughter conviction that the defendant contends is invalid. He points out, correctly, that one of the c. 90, § 24G, standards (causing the death of a person by operating "recklessly") appears indistinguishable from the common law definitions of involuntary manslaughter based on reckless conduct. He argues from this that the Legislature intended the § 24G offense to be the sole offense applicable where death is caused by a defendant's conduct in recklessly operating a motor vehicle, precluding any further prosecutions for involuntary manslaughter based on such conduct. Although conceding that this asserted legislative intent was nowhere made express, the defendant contends that the portion of § 24G based on recklessness is so inconsistent with the gravamen of involuntary manslaughter by motor vehicle as to effectively repeal the latter in part. 7
Bearing in mind the very strong presumption against implied repeal, see Commonwealth v. Hayes, 372 Mass. 505, 511-512, 362 N.E.2d 905 (1977), and cases cited, we do not think there is sufficiently clear indication that the Legislature intended to preclude further involuntary manslaughter prosecutions based on reckless driving. 8 The "recklessly or negligently" language of G.L. c. 90, § 24G, appears to have been taken virtually verbatim from the driving so as to endanger statute, G.L. c. 90, § 24(2)(a ), with the added requirement that the defendant's conduct cause a death. We cannot accept the premise that the Legislature intended significant consequences to attach to its failure to delete one word ("recklessly") when it imported language from the operating to endanger statute into the vehicular homicide statute. In reaching this conclusion, we take notice that by custom and usage the element of "recklessness" has been of little or no significance in the application of the operating to endanger statute. Because a violation of § 24G may be established by proving that the defendant's negligent or intoxicated driving caused a death, the statutory word "recklessly" seems to be surplusage. We conclude that the Legislature, by its enactment of c. 90, § 24G, did not impliedly repeal the common law crime of involuntary manslaughter, and therefore the trial judge was correct in denying the defendant's motion to dismiss the manslaughter indictment. Indeed, we consider that it was the legislative intent to create an additional offense for cases similar to this one, and the judge implemented that intent by submitting to the jury two homicide offenses: Manslaughter based on recklessness, and vehicular homicide based on negligence.
A second pretrial motion brought by the defendant sought dismissal of the c. 90, § 24G, indictment on the ground that it was duplicitous of the manslaughter indictment. The judge, relying on our decision in Commonwealth v. Maguire, 313 Mass. 669, 671-673, 48 N.E.2d 665 (1943), ruled that the c. 90, § 24G, offense was not a lesser-included crime within the manslaughter charge and denied the motion. Although we agree that the G.L. c. 90, § 24G, offense is not a lesser-included offense of manslaughter, we are persuaded that, in the situation here, the Legislature did not intend to permit convictions for both offenses.
In determining whether, on the basis of a single act, a defendant may be prosecuted and punished for two statutory or common law crimes, the long-prevailing test in this Commonwealth is whether each crime requires proof of an additional fact that the other does not. Morey v. Commonwealth, 108 Mass. 433, 434 (1871). Kuklis v. Commonwealth, 361 Mass. 302, 306-307, 280 N.E.2d 155 (1972). See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (). If so, 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 duplicitous. See, e. g., Salemme v. Commonwealth, 370 Mass. 421, 423-424, 348 N.E.2d 799 (1976).
Applying the Morey test to the two homicide offenses of which the defendant was convicted, we conclude that each offense plainly requires proof of an additional fact that the other does not. A conviction of vehicular homicide under G.L. c. 90, § 24G, requires the operation of a motor vehicle upon a way or in a place to which members of the public have access; a conviction of manslaughter requires...
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