Com. v. Norman

• Decision Date: 26 April 1989
• Docket Number: No. 88-P-266,88-P-266
• Parties: COMMONWEALTH v. Andre NORMAN.
• Court: Appeals Court of Massachusetts

Page 816

534 N.E.2d 816

27 Mass.App.Ct. 82

COMMONWEALTH v. Andre NORMAN.

No. 88-P-266.

Appeals Court of Massachusetts,

Essex.

Argued Nov. 9, 1988.

Decided March 6, 1989.

Further Appellate Review Granted April 26, 1989.

Janis M. Berry for defendant.

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

Before BROWN, KAPLAN and KASS, JJ.

KASS, Justice.

In Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977), the Supreme Court held that, "Whatever the sequence may be, the [double jeopardy clause of the] Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense."

1. The problem. We are to decide whether the Brown v. Ohio decision renders unlawful the defendant's conviction in the Superior Court on December 4, 1986, of armed robbery of a motor vehicle (a 1985 Honda coupe). Earlier, on June 26, 1986, the defendant had been convicted in the District Court of larceny of the same car, a lesser included offense within armed robbery. If the principle announced in Brown invalidates Norman's second--and more serious--conviction, it alters a rule of long standing in Massachusetts: that a trial of a lesser offense in a lower court does not bar the trial of the defendant on the greater offense if the lower court did not have jurisdiction over the greater offense. Jeopardy does not attach, the thought was, to a crime the forum cannot try. Commonwealth v. McCan, 277 Mass. 199, 204-206 178 N.E. 633 (1931) (indecent assault and battery in the Municipal Court, rape in the Superior Court). Commonwealth v. Jones, 288 Mass. 150, 151-152, 192 N.E. 522 (1934) (operating to endanger in the District Court, manslaughter in the Superior Court). Commonwealth v. Mahoney, 331 Mass. 510, 513-514, 120 N.E.2d 645 (1954) (larceny in the Municipal Court, robbery in the Superior Court). The question of the effect of the Brown case on the classic rule was adverted to in Commonwealth v. Gonzalez, 388 Mass. 865, 870 n. 9, 448 N.E.2d 759 (1983), but not reached because the proceedings in the District Court were determined to be an inquiry into probable cause, not a trial.

Following publication of the Brown opinion in 1977, two Massachusetts cases, Commonwealth v. Lovett, 374 Mass. 394, 396-400, 372 N.E.2d 782 (1978), and Commonwealth v. Nazzaro, 7 Mass.App.Ct. 859, 859-860, 385 N.E.2d 1009 (1979), applied what looks at first like the classic Massachusetts rule. In each of those cases, however, the complaint in the District Court had been faulty because it alleged a crime over which a District Court had no jurisdiction, thus rendering the lower court proceeding a nullity. Commonwealth v. Roby, 29 Mass. (12 Pick.) 496, 501 (1832). ¹ Although the defendant had been brought to the bar, there had been, in the eyes of the law, no trial and no punishment.

2. The facts. We turn to the facts in the case before us. On November 22, 1985, the defendant, with a woman ² accomplice, ambushed Cynthia Cowing as Cowing walked from her car to her apartment. A struggle ensued during which the assailants demanded Cowing's car keys. As the three grappled, the assailants repeatedly pummeled the victim, until, in fear and overwhelmed, she surrendered her keys.

Three days later, a Boston police officer investigated a Honda parked late at night in Franklin Park. He surprised a man (the defendant) and a woman, both naked, in the passenger seat. While they dressed, the officer ran a stolen car check and learned the Honda had been stolen in Lynn.

On November 29, 1985, the Commonwealth complained against Norman in the West Roxbury District Court for larceny of a motor vehicle (G.L. c. 266, § 28). Subsequently, on December 9, 1985, the Commonwealth brought a complaint in the Lynn District Court for armed robbery (G.L. c. 265, § 17) of Cowing's 1985 Honda. The latter complaint was supplanted by an indictment of Norman, for armed robbery of Cowing's 1985 Honda, handed up by an Essex County grand jury on January 6, 1986.

So the matter stood when the larceny complaint came up for trial in the District Court in June, 1986. Norman admitted to sufficient facts, was adjudged guilty, and sentenced to two and one-half years in a house of correction.

3. Status of District Court judgment. There is an enigmatic (because it precedes the judgment by two days) entry on the West Roxbury District Court docket: "Appeal Fwd. BMC." An appeal from a bench trial to a jury-of-six session, ³ as the government is quick to call to attention, vacates the judgment in the primary session. Commonwealth v. Duquette, 386 Mass. 834, 846, 438 N.E.2d 334, and cases cited (1982). Smith, Criminal Practice & Procedure § 2798 (2d ed. 1983, Supp.1988). In this case it does not appear that the appeal was ever entered and prosecuted in the jury-of-six session. See G.L. c. 278, § 24. The judgment and sentence rendered at the bench trial will then have been reimposed in the jury-of-six session. Ibid. If the appeal has been prosecuted, the judgment will perforce be superseded by a judgment of the jury-of-six session for the Commonwealth or for the defendant. The larceny proceeding will not, as the government seems to suggest, self-destruct and vanish. Moreover, the idea of the primary District Court proceeding being supplanted by a trial in the jury-of-six session recognizes that the latter is a repeat trial of the same offense brought to a higher level of the same tribunal by the defendant's choice. What occurs is not double jeopardy but continuing jeopardy, in which, without having to establish error, the defendant has a second chance. See Justices of the Boston Mun. Court v. Lydon, 466 U.S. 294, 304-313, 104 S.Ct. 1805, 1811-16, 80 L.Ed.2d 311 (1984). That is not what happens if the jury-of-six trial never occurs and that is not what happens if the government, at its choice, brings a brand new action in a new forum encompassing the same offense. When the government, on its initiative, brings a successor prosecution, it produces precisely the result which the double jeopardy principle bans: use of the power of the State to wear down the defendant. Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). Costarelli v. Commonwealth, 374 Mass. 677, 681, 373 N.E.2d 1183 (1978). The prohibition against double jeopardy is a constitutional guarantee of a "policy of finality for the defendant's benefit." United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). Brown v. Ohio, 432 U.S. at 165, 97 S.Ct. at 2225.

4. Was the larceny charge a lesser included offense of the robbery charge? One must pause to ask whether Norman's larceny of Cowing's Honda is, indeed, a lesser included offense of his armed robbery of the same vehicle at the same time. Larceny, in the cases, is "routinely considered a lesser included offense of robbery." Commonwealth v. Kelly, 24 Mass.App.Ct. 181, 185, 507 N.E.2d 777 (1987). See also Commonwealth v. Novicki, 324 Mass. 461, 465-467, 87 N.E.2d 1 (1949); Commonwealth v. Hogg, 365 Mass. 290, 295, 311 N.E.2d 63 (1974); Commonwealth v. Johnson, 379 Mass. 177, 181, 396 N.E.2d 974 (1979). Larceny in the instant case occurred as a result of the unlawful taking away of the Honda, with the intent to deprive Cowing of it permanently. Robbery included all those elements with the additional element of exercising force against Cowing or putting her in fear. See ibid. See Heard v. Jago, 515 F.Supp. 162, 164 (S.D.Ohio 1980) (grand theft of auto as lesser included offense of robbery); Kingsbury v. United States, 537 A.2d 208, 211 (D.C.App.1988) (unauthorized use of a auto as lesser included offense of robbery). Cf. Costarelli v. Commonwealth, 374 Mass. at 683-684, 373 N.E.2d 1183 (unauthorized use of a motor vehicle as lesser included offense of larceny of a motor vehicle). Compare Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980) (careless failure to reduce speed may not be lesser included offense of manslaughter); Commonwealth v. Dellinger, 383 Mass. 780, 784-785, 422 N.E.2d 1346 (1981).

5. Failure to raise double jeopardy below. At the Superior Court level, Norman did not move to dismiss on the ground of double jeopardy. On appeal, he skirts the question whether the double jeopardy defense was waived, choosing instead to argue that the failure to raise the question below constituted ineffective assistance of counsel and that thereby the question is preserved.

Ineffective assistance of counsel, however, is something other than a failure of omniscience. Counsel's failings must be grave and fundamental. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). The deficient conduct must fall "measurably below that which might be expected from an ordinary fallible lawyer." Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). See Commonwealth v. McGann, 20 Mass.App.Ct. 59, 61-62, 477 N.E.2d 1075 (1985).

To be sure, Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, had been on the books for some eight years when Norman came to trial in the Superior Court, yet its applicability to the settled Massachusetts practice (discussed supra ) of trying a lesser offense in the District Court and the greater offense in the Superior Court had not been discussed. A lawyer of exceptionally alert and retentive mind might have seized on the hint in note 9 of Commonwealth v. Gonzalez, 388 Mass. at 870, 448 N.E.2d 759, to launch an assault on the familiar procedure. Missing a defense that at the time was novel in Massachusetts is the sort of mistake that may be forgiven the ordinary, fallible lawyer. Compare Commonwealth v. Reid, 400 Mass. 534, 537, 511 N.E.2d 331 (1987).

Although the Commonwealth has not argued that the double jeopardy point is waived for failure to raise it below, see Commonwealth v. Steward, 396 Mass. 76, 77, 483 N.E.2d 1091 (1985), we consider whether the issue is still open on appeal. Protection against...