Commonwealth v. Todd

• Decision Date: 21 July 2010
• Docket Number: 09-P-1021
• Parties: COMMONWEALTH v. JOHN TODD, III. [FN1]
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

COMMONWEALTH

v.JOHN TODD, III.¹

09-P-1021

Commonwealth Of Massachusetts Appeals COURT

Entered: July 21, 2010.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Lenk, Katzmann & Fecteau, JJ.

The defendant, John Todd, III, appeals from a Superior Court judge's denial of a motion for release pursuant to Mass.R.Crim.P. 30(a) and (b), as appearing in 435 Mass. 1501 (2001), and from the denial of his motion for reconsideration. We affirm.

Background. On June 17, 1985, the defendant pleaded guilty to the charges of kidnapping, G. L. c. 265, § 26, hostage taking of a correctional employee, G. L. c. 127, § 38A, and assault and battery on a correctional employee, G. L. c. 127, § 38B. Nearly twenty-three years later, on May 27, 2008, he filed in Superior Court a motion to be released, which was denied. A subsequent motion for reconsideration was also denied.

Discussion. 1. Sufficiency of the indictments. 'A challenge to the sufficiency of an indictment must be raised by a motion to dismiss prior to trial or it will be deemed waived, unless the defendant raises a claim that the court lacks jurisdiction or the indictment fails to charge an offense.' Commonwealth v. Senior, 454 Mass. 12, 14 (2009).

'A defendant's guilty plea, made knowingly, voluntarily and with the benefit of competent counsel, waives all nonjurisdictional defects in the proceedings prior to the entry of the guilty plea.... '[A] counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case.... A guilty plea... renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is... established.''

Commonwealth v. Fanelli, 412 Mass. 497, 500 (1992), quoting from Commonwealth v. Stokes, 18 Mass. App. Ct. 637, 641 (1984). Here, even if we review the claims on the basis that they assert the indictments fail to allege facts necessary to form an offense, and are thus a matter of jurisdiction not subject to waiver, we conclude the indictments were not defective.

Indictments must contain a 'plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof.' Mass.R.Crim.P. 4(a), 378 Mass. 849 (1979). The defendant, in essence, contends that all three indictments did not charge any crimes because they failed to adequately define the crimes charged. We disagree. First, the indictments track the exact language of the statutes. Second, as to the crime of hostage taking, although Commonwealth v. Spearin, 446 Mass. 599, 609 (2006), delineated four elements which must be proved at trial, the mens rea element was not required to put the defendant on notice of the charged crime. See Commonwealth v. Bacon, 374 Mass. 358, 360-361 (1978). See also Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 129 (2010), quoting from Commonwealth v. Gonzalez, 22 Mass. App. Ct. 274, 284 (1986) ('An indictment shall not be dismissed or be considered defective or insufficient if it is sufficient to enable the defendant to understand the charge and to prepare his defense; nor shall it be considered defective or insufficient for lack of any description or information which might be obtained by requiring a bill of particulars').

2. Double jeopardy. The defendant contends that the indictments for assault and battery on a correctional employee and kidnapping are duplicative, thus subjecting him to multiple punishments for the same offense in violation of double jeopardy. We agree with the Commonwealth that the defendant waived his double jeopardy claim via his guilty pleas. See Commonwealth v. Buckley, supra at 128-129. See also United States v. Broce, 488 U.S. 563, 569-570 (1989).

Even assuming the defendant did not waive this claim, no double jeopardy violation occurred. Double jeopardy is violated if crimes share common elements, or if one crime is a lesser included offense of another. See Alperin & Chase, Summary of Basic Law § 7.282 (4th ed. 2006). Neither assault and battery nor kidnapping is a lesser-included offense of the other, nor do they share the same elements. Kidnapping occurs where a defendant 'forcibly or secretly confines' another person against his will, Commonwealth v. Perry, 432 Mass. 214, 231 (2000); assault and battery does not require proof of confinement, and it requires the additional element of either the intentional use of force upon another without consent or 'the intentional commission...