Commonwealth v. Crawford

• Decision Date: 28 January 2000
• Citation: 430 Mass. 683,722 NE 2d 960
• Parties: COMMONWEALTH v. MICHAEL L. CRAWFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 683

722 NE 2d 960

COMMONWEALTH v. MICHAEL L. CRAWFORD.

Supreme Judicial Court of Massachusetts, Suffolk.

November 4, 1999.

January 28, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, SPINA, & COWIN, JJ.

Matthew S. Robinowitz for the defendant.

John P. Zanini, Assistant District Attorney (Lisa Scalcione Dreitlein, Assistant District Attorney, with him) for the Commonwealth.

SPINA, J.

The defendant, Michael L. Crawford, was convicted of the involuntary manslaughter of his girl friend and her unborn fetus. His convictions were affirmed on direct appeal. Commonwealth v. Crawford, 417 Mass. 358 (1994). The defendant filed a postappeal "motion to correct sentences" under Mass. R. Crim. P. 30 (a), 378 Mass. 900 (1979), claiming that double jeopardy principles under the Fifth and Fourteenth Amendments to the United States Constitution as well as under our common law barred his multiple convictions and consecutive sentences for a single criminal act. That motion was denied on February 27, 1997, and the defendant appealed.¹ On January 7, 1998, the defendant filed a "motion to vacate the denial of his original rule 30 motion and to amend his rule 30 motion,"² together with an "amended motion for a new trial and/or to correct his sentences" under Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979). In his amended motion the defendant renewed his double jeopardy claim and raised claims that (1) the homicide statutes are unconstitutionally vague as applied to a viable fetus, (2) the trial judge's instruction on viability unconstitutionally lowered the Commonwealth's burden of proof, and (3) the judge's instructions incorrectly permitted the jury to find the defendant guilty of homicide of the fetus without proof of his knowledge of its existence and viability. The "amended motion" impliedly was treated as a second motion under rule 30 and was denied on grounds that the issues raised had been waived. We affirm the denial of all motions.

The background facts are set forth in Commonwealth v. Crawford, supra at 359-361, which we briefly summarize. On July 7, 1990, the defendant shot Kimberly Noblin in the face. Noblin's body was found more than four hours later, after rigor mortis had set in. At the time of the shooting, Noblin was at least seven months pregnant³ with the defendant's baby. A medical examiner offered uncontroverted testimony that the fetus died of oxygen deprivation but had been viable, "meaning it was old enough and had mature enough systems to survive outside of the mother." Id. at 359 n.l. At trial, the defendant offered alibi evidence that was contradicted by other witnesses.

1. First motion under rule 30. The defendant's first motion for postconviction relief under rule 30 was filed after his direct appeal. The motion judge, who was not the trial judge, considered the merits of the motion and denied it, finding that the defendant's separate sentences for killing both Noblin and her viable fetus did not violate double jeopardy principles. Where a judge fully considers the merits of an original motion for postconviction relief filed after a defendant's direct appeal, containing arguments that could have been but were not argued on direct appeal, and denies the motion, the proper test for appellate review of the denial of the motion is whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Hallet, 427 Mass. 552, 553 (1998); Commonwealth v. Curtis, 417 Mass. 619, 623 (1994).

The defendant argues that, because the fetus and the mother were killed as a result of the same criminal act, his multiple convictions and sentences constitute double punishment in violation of double jeopardy principles. He further contends that double jeopardy principles preclude multiple punishments in circumstances where the court, rather than the Legislature, has defined the crime. "The double jeopardy clause of the Fifth Amendment to the United States Constitution protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." Mahoney v. Commonwealth, 415 Mass. 278, 283 (1993). We are concerned with the third category of protection, which requires us to determine whether the Legislature intended to authorize imposition of multiple punishments for concurrent violations of the same statute arising out of a single transaction. See Ohio v. Johnson, 467 U.S. 493, 499 (1984); Commonwealth v. Levia, 385 Mass. 345, 347 (1982).

In Levia, we upheld the imposition of consecutive sentences for the armed robbery of two individuals in the course of a single incident as nonviolative of double jeopardy because the statutory emphasis on the assault element of robbery was seen as a manifestation of legislative intent authorizing separate punishment as to each person robbed. We held that robbery constituted an offense against each person, and was not just one offense against the owner of the property taken. Id. at 350-351. Citing our holding in Levia, we later observed that, "[w]henever a single criminal transaction gives rise to crimes of violence which are committed against several victims, then multiple indictments (and punishments) are appropriate." Commonwealth v. Donovan, 395 Mass. 20, 31 (1985). Consecutive sentences are commonly imposed for multiple homicides arising out of the same incident. See, e.g., Commonwealth v. Wilson, 381 Mass. 90, 123 (1980) (three consecutive sentences for convictions of felony-murder in the first degree arising from armed home invasion); Commonwealth v. Rhoades, 379 Mass. 810, 812 n.12 (1980) (consecutive sentences for convictions of murder in the second degree arising from arson); Commonwealth v. Davila, 17 Mass. App. Ct. 511, 515 (1984) (three consecutive sentences for convictions of murder in the second degree arising from arson); Commonwealth v. Meehan, 14 Mass. App. Ct. 1028, 1029 (1982) (consecutive sentences for double vehicular homicide appropriate where "the Legislature has expressly provided for punishment of any violation of [G. L. c. 90,] § 24G[,] which causes the death of `another person'"). We have implicitly approved the imposition of consecutive sentences for crimes of violence committed against multiple victims because the appropriate "unit of prosecution" for such crimes is the person assaulted or killed, not the underlying criminal act. Commonwealth v. Donovan, supra,

quoting People v. Wakeford, 418 Mich. 95, 112 (1983).

In Commonwealth v. Cass, 392 Mass. 799, 807 (1984), we announced our intent to depart from the common-law rule⁴ that the object of a homicide must be a person who had been born alive. We said, "[i]f a person were to commit violence against a pregnant woman and destroy the [viable] fetus within her, we would not want the death of the fetus to go unpunished" (footnotes omitted). Thereafter, in Commonwealth v. Lawrence, 404 Mass. 378 (1989), we affirmed the convictions of a defendant who received consecutive sentences for the murder in the first degree of a sixteen year old girl and the involuntary manslaughter of the twenty-seven week old fetus she was carrying. Our common law expressly authorizes multiple punishment for unlawfully killing a woman and her viable fetus.

There is no merit to the defendant's contention that he may not be punished for two homicides when he fired only one shot. The "probable harmful consequences," Commonwealth v. Vanderpool, 367 Mass. 743, 747 (1975), of a single gunshot, like the fire started by a single match or the car running out of control due to a single reckless miscalculation, are not limited to one death. The defendant's reliance on Ladner v. United States, 358 U.S. 169 (1958), is misplaced. There a defendant received consecutive sentences for wounding two Federal officers with a single shotgun blast. In reversing the convictions, the Court looked to the statute to determine whether Congress authorized such punishment and determined that the statute was ambiguous. Id. at 177. It did not decide the case on double jeopardy grounds. Id. at 173. Significantly, the Court did not hold that multiple punishments could never be imposed for each victim of a single act.

The defendant next contends that consonant with principles of double jeopardy the Legislature alone may authorize multiple punishments for criminal acts, and that our decision in Commonwealth v. Cass, supra,

which paved the way for his prosecution for unlawfully killing the fetus, violated those principles. The defendant relies on a passage from Brown v. Ohio, 432 U.S. 161, 165 (1977), where the Supreme Court said:

"The Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense...."

The passage from Brown does not support his proposition. There the Supreme Court went on to explain that the double jeopardy clause provides a check on courts to assure that they do not exceed their authority to punish. Id. The Court did not say, nor did it imply, that for double jeopardy purposes courts from common-law jurisdictions could not define crimes. It merely admonished that punishment must fall within authorized limits. The statute proscribing manslaughter, G. L. c. 265, § 13, is a codification of the common law, Commonwealth v. Webster, 5 Cush. 295, 303 (1850), a matter within our power to develop. The Legislature has exercised its authority over the subject of manslaughter only to the extent of setting the punishment. It has left definition of the crime for the courts. Id. We exercised our authority to develop common law in Commonwealth v. Cass, supra at 803-807, by holding that a viable fetus is a person for purposes of homicides committed after...