Commonwealth v. McCravy

• Decision Date: 05 November 1999
• Citation: Commonwealth v. McCravy, 430 Mass. 758, 723 N.E.2d 517 (Mass. 1999)
• Parties: COMMONWEALTH v. MICHAEL A. MCCRAVY.
• Court: Supreme Judicial Court of Massachusetts

430 Mass. 758

723 NE 2d 517

COMMONWEALTH v.MICHAEL A. MCCRAVY.

Supreme Judicial Court of Massachusetts, Norfolk.

November 5, 1999.

February 14, 2000.

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

Henry F. Owens, III(Bronwyn Lee Roberts with him) for the defendant.

Brian A. Wilson,Assistant District Attorney, for the Commonwealth.

MARSHALL, C.J.

This matter is before us on the defendant's appeal from his conviction of driving negligently or recklessly so as to endanger the safety of the public, G. L. c. 90, § 24 (2)(a).¹We transferred the case to this court on our own motion.He claims error in three respects.First, he contends that the Commonwealth impermissibly presented to the grand jury the same evidence that had already been found insufficient by a prior grand jury.Second, he challenges certain remarks of the prosecutor during his closing argument.Finally, he argues that the sentence imposed by the trial judge was unlawful because it took into account the death of the passenger in the car the defendant was driving, a homicide for which the jury had not found the defendant responsible.We affirm the conviction, but remand the case to the Superior Court for resentencing.

1.We summarize evidence of the circumstances of the accident, before turning to the indictments.On the night of July 30, 1995, the defendant spent several hours with his friend, Daniel Archibald, at a nightclub in Quincy.Shortly after the club closed at midnight, the defendant and Archibald left together in the defendant's Corvette automobile.The defendant was driving.While on West Squantum Street, a windy road through Quincy and Milton, the defendant's automobile flipped over.The circumstances leading to that event were contested at trial.

The defendant, who testified, contended that the accident had been caused when he was "cut off" by another driver speeding past him in a Porsche automobile as they approached a sharp, left-bearing curve near the Quincy-Milton line.The Commonwealth contended that the driver of the Porsche was traveling ahead of the defendant's Corvette, that the defendant had been traveling above the speed limit, was intoxicated, and had lost control of the Corvette as he entered the sharp curve.

After the accident, the defendant was able to remove himself from his vehicle.Archibald, however, was trapped in the wreckage.With the assistance of several individuals who stopped at the scene, the defendant managed to free Archibald, who was unconscious and badly injured.

Paramedics transported the defendant and Archibald to a local hospital, where Archibald was pronounced dead.A blood alcohol concentration test taken at the hospital revealed that the defendant's blood had an alcohol content of 0.12 per cent.²Evidence that a person's blood alcohol level is 0.08 per cent creates a permissible inference that a person is under the influence of alcohol.SeeG. L. c. 90, § 24 (1)(e)(1994 ed. & Supp. 1995).Two Milton police officers then arrested the defendant at the hospital.

On September 13 and September 27, 1995, the Commonwealth presented evidence to a grand jury in Norfolk County concerning the motor vehicle accident and Archibald's death.The grand jury returned only one indictment charging the defendant with operating a motor vehicle while under the influence of intoxicating liquor.

The Commonwealth did not proceed on that indictment.Rather, on October 4, 1995, the Commonwealth presented its case to a second grand jury in Norfolk County that returned six indictments against the defendant: (1) homicide by a motor vehicle while operating while under the influence of an intoxicating substance and while operating recklessly or negligently in violation of G. L. c. 90, § 24G (b);(2) homicide by a motor vehicle while operating while under the influence of an intoxicating substance in violation of G. L. c. 90, § 24G (a);(3) homicide by a motor vehicle while operating recklessly or negligently in violation of G. L. c. 90, § 24G (a);(4) operating a motor vehicle while under the influence of an intoxicating substance in violation of G. L. c. 90, § 24 (1)(a)(1)(1994 ed.);(5) negligently or recklessly operating a motor vehicle so as to endanger the safety of the public in violation of G. L. c. 90, § 24 (2)(a)(1994 ed.); and (6) speeding in violation of G. L. c. 90, § 17.

In October, 1997, the defendant was tried before a jury in the Superior Court.The defendant was convicted of two misdemeanors: negligently or recklessly operating a motor vehicle so as to endanger the safety of the public, G. L. c. 90, § 24 (2)(a), and speeding, G. L. c. 90, § 17.See note 1, supra.He was acquitted on all of the other charges.The judge sentenced the defendant to one year in a house of correction, six months to be served, and the balance suspended for two years.

2.Before trial, the defendant filed a motion to dismiss all indictments on the ground that the resubmission of the same evidence³ to a second grand jury impaired the integrity of the grand jury process.The motion was denied.The defendant argues that order violated his right to due process and "fair presentment," as guaranteed under art. 12 of the Massachusetts Declaration of Rights.SeeCommonwealth v. Moran,353 Mass. 166, 171(1967)("Article 12 pertains to certain basic rights of an accused, including our equivalent of the Fourteenth Amendment's due process clause").

The right of an individual citizen to be secure from the "public accusation of crime, and from the trouble, expense and anxiety of a public trial, before a probable cause is established by the presentment and indictment of a grand jury,"Jones v. Robbins,8 Gray 329, 344(1857), is not specifically mentioned in art. 12.⁴Cf.Fifth Amendment to the United States Constitution("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury ...").⁵Nevertheless, presentment and indictment by a grand jury is "one of the great securities of private right, handed down to us as among the liberties and privileges which our ancestors enjoyed at the time of their emigration, and claimed to hold and retain as their birthright."Jones v. Robbins, supra at 342.SeeCommonwealth v. Mayfield,398 Mass. 615, 622 n.3(1986)(right to grand jury indictment as to serious crime is "constitutionally based" in art. 12);Lataille v. District Court of E. Hampden,366 Mass. 525, 531(1974)(same);Commonwealth v. Holley,3 Gray 458, 459(1855)("The great principle asserted by the Declaration of Rights is that no man shall be put to answer a criminal charge until the criminating evidence has been laid before a grand jury and they have found probable cause, at least, to believe the facts true on which the criminality depends").

As "one of the ancient immunities and privileges of English liberty,"Jones v. Robbins, supra at 344, the right to indictment by a grand jury carried no attendant limitation on a prosecutor precluding resubmission of the same evidence to successive grand juries.Rather, at common law, a prosecutor retained the discretion to resubmit a charge to a grand jury after having been dismissed by a previous grand jury.SeeUnited States v. Martin,50 F. 918, 918(W.D. Va.1892)("The doctrine in [the United States] is that the ignoring of an indictment by one grand jury is no bar to a subsequent grand jury investigating the charge and finding an indictment for the same offense").See also2 W.R.LaFave & J.H. Israel, Criminal Procedure§ 15.2(b), at 287(1984).

While art. 12 preserved the right of the accused to indictment by a grand jury, we have not had occasion to recognize a correlative right to limit to one grand jury, and one only, submission of the same evidence.We decline to do so now.Under Federal law, it is settled that the same matters may be considered by more than one grand jury.See, e.g., In re Grand Jury Proceedings,658 F.2d 782, 783(10th Cir.1981), citingUnited States v. Thompson,251 U.S. 407, 413-414(1920).A minority of States restrict the resubmission of criminal charges to a second grand jury, but in each instance the restriction is the result of legislative enactment rather than by judicial decision.⁶See2 S.S.Beale, W.C. Bryson, J.E. Felman, & M.J. Elston, Grand Jury Law and Practice§ 8:6, at 8-36, 8-39 to 8-40 & n.9 (2d ed. 1997 & Supp. 1998).Most of those statutes require that the government first obtain leave of court before criminal charges may be resubmitted to a second grand jury.Id.The Massachusetts Legislature has not imposed any such requirement on Massachusetts prosecutors.Moreover, we are not aware of any judicial decision limiting the discretion of the government to resubmit a case to a second grand jury in the absence of a statute.CompareState v. Rizzo,704 A.2d 339, 342 n.3(Me.1997)(declining to decide whether court may bar resubmission to second grand jury in absence of new evidence).Our decision in Commonwealth v. Westerman,414 Mass. 688(1993), is not to the contrary, for in that casewe considered only whether a second grand jury could consider matters currently under consideration by a prior grand jury whose term had been extended.Id. at 702-703.SeeCommonwealth v. Leavitt,17 Mass. App. Ct. 585, 590, cert. denied, 469 U.S. 835(1984)(same).

We are asked to consider here only whether a prosecutor may present the same evidence to a second grand jury.We do not consider whether repeated submissions of the same evidence to multiple grand juries would withstand scrutiny.The Commonwealth suggests that there is no such outer limit because, unlike the protections afforded a defendant by the privilege against double jeopardy, forcing an individual to appear before multiple grand juries would not be unduly harassing.But the purpose of indictment by a grand jury is to shield "the innocent against hasty, malicious and...