Commonwealth v. Flanagan
| Decision Date | 15 March 2010 |
| Docket Number | No. 08-P-995.,08-P-995. |
| Citation | 76 Mass.App.Ct. 456,923 N.E.2d 101 |
| Parties | COMMONWEALTH v. Kelly J. FLANAGAN. |
| Court | Appeals Court of Massachusetts |
COPYRIGHT MATERIAL OMITTED
Michael M. Harrington, Boston, for the defendant.
Rachel J. Eisenhaure, Assistant District Attorney, for the Commonwealth.
Present: GRASSO, FECTEAU, & HANLON, JJ.
The defendant appeals from guilty verdicts after a jury trial; she was convicted of two counts of causing serious bodily injury while operating a motor vehicle negligently and while under the influence of an intoxicating substance, G.L. c. 90, § 24L(1); and one count of reckless operation of a motor vehicle, G.L. c. 90, § 24(2)(a).1 She argues that (1) her conviction for two violations of G.L. c. 90, § 24L(1), based upon injury to two different victims, violates her rights under the double jeopardy clause of the Fifth Amendment to the United States Constitution; (2) the reckless operation charge was a lesser included offense of the G.L. c. 90, § 24L(1), charges, resulting in duplicative convictions; (3) the prosecutor's cross-examination violated her privilege against self-incrimination; (4) the evidence offered was insufficient to sustain her convictions; (5) the judge's final instructions to the jury defining operating under the influence of alcohol were flawed; and (6) a mistrial should have been declared when a juror revealed that her signature appeared on one of the medical records admitted in evidence. We affirm the convictions.
Facts. The jury could have found the following facts. On April 29, 2004, at about 6:30 p.m., Kim Mello was driving a minivan on a four-lane highway with two of her daughters and one of her daughter's friends. A Dodge Durango sports utility vehicle (SUV) came towards her from the opposite direction and hit her car head-on. Mello and her sixteen year old daughter were seriously injured.2
Eric Sousa was driving a short distance behind the SUV, with Michael Santos as his passenger; the road ahead was clear without any obstructions. The two men saw the SUV cross lanes into oncoming traffic and hit the right front fender of an Oldsmobile automobile traveling towards them. The SUV then continued into the next lane and hit Mello's minivan head-on. Sousa pulled to the side of the road and he and Santos went to help. Santos saw someone struggling, without success, from the outside of the SUV trying to get in to assist the occupant in the front. Eventually, that person opened the SUV's back hatch and climbed into the SUV. When Santos approached the SUV and looked inside, he saw only the defendant, with her back on the floor of the front passenger side and one of her legs on the front passenger seat and the other leg on the middle console. Apart from those who had gone into the SUV to help, Santos never saw anyone, other than the defendant, get out of the SUV.
Firefighter Robert Nolan arrived on the scene. He could not open either front door to the SUV and, after asking the responding bystander to step out, entered the SUV through a rear door and climbed over the seats to the front. Nolan observed the defendant lying on the floor of the SUV with her back on the front passenger side, her head up against the front passenger door, and her feet on the driver's side. The defendant was crying and sobbing and she said to him several times that she was in trouble, reiterating, "you don't understand, I'm in so much trouble, I'm in trouble." The "jaws of life" were needed to open the passenger side door to remove the defendant because the door was jammed into the doorframe. There were several signs in the SUV of alcohol use.3 The defendant, who also was seriously injured in the crash, testified at trial that, although it was her car, it was not she, but her friend Wendy, who was driving the SUV.4
Discussion. a. Double jeopardy. The defendant makes two, unsuccessful, double jeopardy arguments: first, she maintains that although there were two people injured, she cannot be convicted of two separate violations of G.L. c. 90, § 24L(1), causing serious bodily injury while operating negligently and under the influence of alcohol, 5 because there was
only one accident. She argues that the gravamen of the offense is causing an accident while under the influence of intoxicants; the serious bodily injury element is an aggravating factor only. Thus, she concludes, receiving two separate convictions, and two sentences, punishes her twice for committing the same offense.6 Her second claim is that her conviction for reckless operation of a motor vehicle under G.L. c. 90, § 24(2)(a), 7 is an impermissible lesser included offense of the § 24L(1) charges.
"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." Commonwealth v. Crawford, 430 Mass. 683, 686, 722 N.E.2d 960 (2000), quoting from Mahoney v. Commonwealth, 415 Mass. 278, 283, 612 N.E.2d 1175 (1993). In this case, like the court in Commonwealth v. Crawford, 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." Commonwealth v. Crawford, supra.
(1) G.L. c, 90, § 24L(1). Massachusetts cases interpreting various provisions of chapter 90 draw a distinction between those statutes addressed, on the one hand, to an action such as the operation of the vehicle or leaving the scene of an accident without making one's self known, and, on the other hand, to those primarily addressed to the resulting harm. Thus, in a prosecution for leaving the scene of an accident after causing injuries resulting in death, G.L. c. 90, § 24(2)(a)(2), the Supreme Judicial Court in Commonwealth v. Constantino, 443 Mass. 521, 524, 822 N.E.2d 1185 (2005), held
In Constantino, the court also held that for the crime of operating to endanger under G.L. c. 90, § 24(2)(a), Id. at 527, 822 N.E.2d 1185 (emphasis supplied). Significantly, the court noted that "a person may operate a vehicle in such a way that would endanger the public although no
other person is on the street." Id. at 526-527, 822 N.E.2d 1185.
In contrast, this court concluded in a motor vehicle homicide case, Commonwealth v. Meehan, 14 Mass.App.Ct. 1028, 1029, 442 N.E.2d 43 (1982), that "the Legislature intended that each death caused in one accident in violation of [G.L. c. 90,] § 24G[,] could be prosecuted and punished thereunder as a separate offense." The language of the statute at issue, § 24L(1), closely tracks the language of § 24G, the motor vehicle homicide statute, substitut-ing461 the words "serious bodily injury" for the words "causing the death of another person." The defendant argues that the use of the words "another person" distinguishes § 24G from § 24L(1), and she finds some support in the language of Commonwealth v. Meehan, which states that the "deliberate use of [the] words ['another person'] signifies a legislative determination that the gravamen of the offense is the killing of a human being as distinguished from unlawful operation of a motor vehicle." Ibid. (internal citation omitted). Nevertheless, we are more persuaded that the gravamen of § 24L(1) is the injury caused to the person.
The language of the two statutes, § 24G and § 24L(1), is essentially the same. Moreover, as the Commonwealth points out, § 24L(1) was enacted in 1986, well after this court's 1982 Meehan decision. We presume that when the Legislature enacts a statute Commonwealth v. Colturi, 448 Mass. 809, 812, 864 N.E.2d 498 (2007). When the Legislature tracked the language of § 24G in enacting § 24L(1), we reasonably infer it intended to adopt the judicial construction of the Meehan court that the appropriate unit of prosecution was the number of victims seriously injured by a defendant's negligent and intoxicated driving.
The language of § 24L(1) itself supports that view: "Whoever... operates a motor vehicle... while under the influence of intoxicating liquor... and so operates a motor vehicle recklessly or negligently so that the lives or safety of the public might be endangered, and, by any such operation so described causes serious bodily injury...." G.L. c. 90, § 24L(1) (emphasis supplied). Each of the three verbs in § 24L(1) describing the proscribed conduct is separated by "and," making each clause, including "causes serious bodily injury," an equal element of the crime described. Thus, the unit of prosecution is the injury caused to a victim by the defendant's impaired and negligent driving.8
(2) Reckless operation as a lesser included offense. The defendant's second double jeopardy claim, that her conviction for reckless operation...
To continue reading
Request your trial
-
Commonwealth v. Wassilie
..."strengthen forthwith the laws relative to the expectation of privacy of one's person." Preamble, St. 2014, c. 43. See Flanagan, 76 Mass. App. Ct. at 461, 923 N.E.2d 101 ("We presume that when the Legislature enacts a statute it is aware of the prior state of the law as explicated by the de......
-
Commonwealth v. Guaman
...108 Mass. 433, 434 (1871) ; Commonwealth v. Vick, 454 Mass. 418, 431–432, 910 N.E.2d 339 (2009) (Vick ); Commonwealth v. Flanagan, 76 Mass.App.Ct. 456, 462, 923 N.E.2d 101 (2010). A lesser offense is considered duplicative of a greater offense if all of its elements are included within the ......
-
Commonwealth v. Hristo Bote V.
...N.E.2d 1102 (2006). See Mass.R.Crim.P. 28(e), as amended, 453 Mass. 1501 (2009). 3. To the same effect is Commonwealth v. Flanagan, 76 Mass.App.Ct. 456, 460–461, 923 N.E.2d 101 (2010), holding that the number of victims is the appropriate unit of prosecution for the crime of causing serious......
-
Commonwealth v. Filoma
...of intoxicating liquor (the OUI element), (4) so as to cause serious bodily injury to a victim.5 Compare Commonwealth v. Flanagan, 76 Mass.App.Ct. 456, 463, 923 N.E.2d 101 (2010) ( G.L. c. 90, § 24L [1] ). The Commonwealth could establish the OUI element by either of two methods. By the “pe......