Commonwealth v. Rodriguez

• Decision Date: 01 February 2017
• Docket Number: SJC–12093
• Citation: 68 N.E.3d 635,476 Mass. 367
• Parties: COMMONWEALTH v. Brandon RODRIGUEZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

476 Mass. 367

68 N.E.3d 635

COMMONWEALTH

v.Brandon RODRIGUEZ.

SJC–12093

Supreme Judicial Court of Massachusetts, Bristol..

Argued October 5, 2016.

Decided February 1, 2017.

Roger L. Michel, Jr., Assistant District Attorney, for the Commonwealth.

Timothy St. Lawrence for the defendant.

Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

BUDD, J.

In this case we consider whether an acquittal on a charge of receipt of stolen property bars a subsequent prosecution for larceny of the same property. We conclude that principles of double jeopardy are not a bar to such action and that the successive prosecutions here do not violate the equitable principles that must be considered in such cases.

Background and procedure. 1. The Commonwealth's allegations.¹ In 2012, the defendant went to his friend's house. While the friend searched for his cellular telephone, he discovered the defendant in his mother's bedroom, standing in front of her jewelry box. A drawer in the jewelry box was open. The defendant claimed he had been petting the friend's dog, who was in the bedroom. The defendant asked his friend if he wanted the defendant "to shake [his] pockets out," but the friend declined. The next day, the friend's mother discovered that a family ring was missing. Later, her daughter saw a photograph online of the defendant in which he was wearing the ring on a chain around his neck.

2. The receipt of stolen property charge. The Commonwealth initially sought a complaint in the New Bedford Division of the District Court Department against the defendant on the charges of both larceny in excess of $250 and receipt of stolen property, pursuant to G. L. c. 266, §§ 30 (1) and 60, respectively. Apparently, because the friend was unavailable at the time, the Commonwealth was unable to present the factual evidence necessary to establish probable cause of larceny by the defendant. As a result, the clerk-magistrate issued a complaint only for receipt of stolen property. On the morning of trial, the friend, who could supply the evidence supporting the larceny charge, became available as a witness. After jury empanelment, the trial judge learned that the testimony of the new witness related to larceny rather than receipt of stolen property.

The judge told the parties that he would instruct the jury that if they found that the defendant was the thief, then they could not convict him of receiving stolen property.² The judge denied the prosecutor's motion to amend the complaint to include larceny but stated that the Commonwealth was free to bring a new complaint for larceny at a later date. Following the Commonwealth's opening statement, the judge invited and allowed the defendant's motion for a required finding of not guilty.

3. The larceny charge. Weeks later, the Commonwealth filed a complaint against the defendant for larceny over $250. The defendant was arraigned on October 11, 2013. He moved to dismiss the complaint on the ground of double jeopardy, arguing that he previously had been acquitted of receipt of stolen property, and the object of both prosecutions was the same allegedly stolen ring. A different judge denied the motion to dismiss, as well as a motion for reconsideration. A third judge, however, allowed the defendant's motion to dismiss, finding that larceny and receipt of stolen property were very closely related and based on the same facts.³ The Commonwealth appealed from the dismissal of the larceny charge. We allowed the defendant's application for direct appellate review.

We reverse the allowance of the motion to dismiss, as larceny and receipt of stolen property are not the same offense for double jeopardy purposes. Further, other equitable doctrines—due process, collateral estoppel, and judicial estoppel—do not weigh in this defendant's favor.

Discussion. 1. Double jeopardy. Both parties agree that the trial judge erred in directing a verdict of not guilty on the charge of receipt. Under our common law, it has long been the rule that a defendant may be charged with both larceny and receipt of stolen property, although, for reasons unrelated to double jeopardy, he may be convicted of only one of these offenses. See Commonwealth v. Haskins, 128 Mass. 60, 61 (1880). This bar against convictions of both crimes does not mean that the Commonwealth cannot prove receipt using evidence showing that the defendant was the thief.

Commonwealth v. Corcoran, 69 Mass.App.Ct. 123, 127, 866 N.E.2d 948 (2007).

The defendant argues that the subsequent larceny complaint was properly dismissed on the ground of double jeopardy. We disagree.

Because it involves a question of law, we review the motion judge's decision de novo. See Commonwealth v. Carlino, 449 Mass. 71, 72 n.7, 865 N.E.2d 767 (2007). Double jeopardy protection stems from the Fifth Amendment to the United States Constitution and from Massachusetts common and statutory law.⁴ Commonwealth v. Woods, 414 Mass. 343, 346, 607 N.E.2d 1024, cert. denied, 510 U.S. 815, 114 S.Ct. 65, 126 L.Ed.2d 35 (1993). Traditional double jeopardy principles bar a second prosecution for the same offense after either an acquittal or a conviction, as well as multiple punishments for the same offense. Mahoney v. Commonwealth, 415 Mass. 278, 283, 612 N.E.2d 1175 (1993). As the defendant argues that his acquittal on the receipt of stolen property charge bars a subsequent larceny prosecution, he must show that receipt and larceny of the same property constitute the "same offense" for double jeopardy purposes. See Commonwealth v. Gonzalez, 437 Mass. 276, 281, 771 N.E.2d 134 (2002), cert. denied, 538 U.S. 962, 123 S.Ct. 1748, 155 L.Ed.2d 514 (2003).

a. Appropriate test. The parties disagree as to the appropriate test for determining whether two charges constitute the same offense in the case of successive prosecutions.⁵ The Commonwealth asserts that we should apply the same elements test, which normally governs our double jeopardy analysis. The defendant argues that, in addition to the same elements test, we should also use the same conduct test, which, he maintains, would address concerns unique to successive prosecutions.⁶ We conclude that the same elements test, firmly rooted in our history and our case law, is the only appropriate test to apply in both single and successive prosecution scenarios.

i. Same elements test. The same elements test has a long history in both Massachusetts and Federal double jeopardy jurisprudence. See, e.g., Morey v. Commonwealth, 108 Mass. 433, 434–435 (1871), citing Commonwealth v. Roby, 29 Mass. 496, 12 Pick. 496 (1832). See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (adopting same elements test from Morey as applicable to double jeopardy clause of Fifth Amendment). See also Grady v. Corbin, 495 U.S. 508, 535–536, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990)⁷ (Scalia, J., dissenting) ("We have applied the Roby– Morey–Gavieres– Blockburger formulation in virtually every case defining the ‘same offense’ decided since Blockburger"). Under this test, a defendant may face successive prosecutions "for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not." Commonwealth v. Valliere, 437 Mass. 366, 371, 772 N.E.2d 27 (2002), citing Morey, 108 Mass. at 434. This means that a defendant facing successive prosecutions must show either that the new charge has the same elements as the first charge, or that one of the charged crimes is a lesser included offense of the other. The defendant argues that, in applying the same elements test, we have historically examined whether the acts underlying both offenses "are so closely related [in fact] as to constitute in substance [but] a single crime." Commonwealth v. Vick, 454 Mass. 418, 433, 910 N.E.2d 339 (2009). We have done so, however, only where one of the crimes was a lesser included offense of the other, or where multiple counts of the same charge were brought together. See id. at 435, 910 N.E.2d 339, and cases cited. If a defendant cannot meet his burden under the same elements test, the underlying facts are irrelevant.

ii. Same conduct test. The same conduct test considers what conduct the government would prove at trial, and would "bar[ ] a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Grady, 495 U.S. at 510, 110 S.Ct. 2084. The defendant argues that we should apply the same conduct test to mitigate the uncertainty and expense that defendants experience when facing successive prosecutions.

Although the United States Supreme Court briefly adopted the same conduct test in successive prosecutions in Grady, the Court quickly reversed course, expressly overruling Grady three years later in United States v. Dixon, 509 U.S. 688, 697, 704, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). There, the Court held that the Federal Constitution requires application only of the same elements test in both single and successive prosecutions. Id. at 710–712, 113 S.Ct. 2849. By arguing that we should apply the same conduct test in the case of successive prosecutions, the defendant asks us to provide a higher level of protection than is required by the United States Constitution. Although State common law and statutory law may provide greater protection against double jeopardy, Commonwealth v. Carlino, 449 Mass. at 79 n.20, 865 N.E.2d 767, as a general matter, "we have long recognized a protection against double jeopardy that is coextensive with Federal protection." MacLean v. State Bd. of Retirement, 432 Mass. 339, 350 n.14, 733 N.E.2d 1053 (2000).

We decline to go further here. Since the early Nineteenth Century, we have held that a prior acquittal does not bar a subsequent prosecution unless the two charges are legally the same offense. Roby, 12 Pick. at 504 (no...