Commonwealth v. Pileeki

Brown, J.

(concurring in result). While I agree with the result reached by the majority, I write separately to set out my views on the current state of the law relating to duplicative convictions.

Alleged duplicative convictions. As noted, the defendant was convicted of arson of a dwelling and involuntary manslaughter. Citing Commonwealth v. Morin, 52 Mass. App. Ct. 780, 787 (2001), she now alleges that these two crimes “were so closely related in fact as to constitute but a single act” and, as a result, that her convictions are impermissibly duplicative — i.e., the convictions (and associated judgments) transgress double jeopardy principles. According to the defendant, multiple convictions “based on the identical conduct” are impermissible even where, as here, neither crime is a lesser included offense of the other. This represents a fundamental misapprehension of the law relating to duplicative offenses. While both convictions inarguably stem from precisely the same criminal acts, the compound punishments in this case are entirely consistent with the settled law of the Commonwealth.

*515 As the Supreme Judicial Court has repeatedly declared, “a defendant may properly be punished 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. Jones, 441 Mass. 73, 75 (2004), quoting from Commonwealth v. Valliere, 437 Mass. 366, 371 (2002). In applying this rule, as the Supreme Judicial Court recently reiterated, “the actual criminal acts alleged are wholly irrelevant . . . rather, the elements of the crimes charged are considered objectively, abstracted from the facts” (emphasis added). Commonwealth v. Jones, 441 Mass. at 76 , quoting from Commonwealth v. Jones, 59 Mass. App. Ct. 157, 162 (2003). Consistent with this approach, both this court and the Supreme Judicial Court have approved multiple convictions on the basis of a single act in a very large number of decisions. See Commonwealth v. Buckley, 410 Mass. 209, 222, 223 (1991) (murder and armed robbery); Commonwealth v. Charles, 428 Mass. 672, 683 (1999) (insurance fraud and larceny); Commonwealth v. Jones, 441 Mass. at 75-76 (burning a motor vehicle and burning insured property with intent to defraud insurer); Commonwealth v. Arriaga, 44 Mass. App. Ct. 382, 386-387 (1998) (assault with a dangerous weapon and assault with intent to murder); Commonwealth v. Diaz, 53 Mass. App. Ct. 209, 211 (2001) (assault and battery with a dangerous weapon and assault with intent to murder). See also Commonwealth v. Anolik, 27 Mass. App. Ct. 701, 712 (1989) (burning of a dwelling and burning of insured property), cited with approval in Commonwealth v. Jones, 441 Mass. at 76 . The multiple convictions here are likewise proper, premised as they are upon offenses that contain mutually exclusive elements. See Morey v. Commonwealth, 108 Mass. 433, 434 (1871), cited with approval in Commonwealth v. Jones, 441 Mass. at 75 .

We note for the purposes of clarity that there are circumstances in which conduct is relevant for assessing whether convictions are impermissibly duplicative; namely, where “cognate offenses” 1 are charged. In such cases, multiple convictions are permissible only where each conviction is premised *516 upon a distinct criminal act. This rule is easy to apply where the acts alleged are plainly separate in terms of time, place, victim, or purpose. However, the analysis is less straightforward in the context of a closely connected stream of events. In such cases, when assessing whether a continuous course of criminal conduct may be separated into discrete acts capable of supporting multiple convictions for cognate offenses, a court frequently must consider “whether the actions of a defendant were ‘so closely related in fact as to constitute in substance but a single crime.’ Commonwealth v. St. Pierre, 377 Mass. 650, 662-663 (1979).” Commonwealth v. Jones, 441 Mass. at 75 . See Commonwealth v. Sanchez, 405 Mass. 369, 381-382 (1989) (indecent assault and battery and rape in the context of multiple victims); Commonwealth v. Mamay, 407 Mass. 412, 418-419 (1990) (indecent assault and battery and rape); Commonwealth v. Maldonado, 429 Mass. 502, 509-510 (1999) (“single crime” analysis applied where assault and battery with a dangerous weapon and murder charged). Cf. Commonwealth v. LaCaprucia, 429 Mass. 440, 445-447 (1999) (sexual assault case involving multiple counts of same offense); Commonwealth v. Valliere, 437 Mass. 366, 371-372 (2002) (armed robbery and felony murder with armed robbery as underlying felony).

To take a familiar illustration, the question “whether the actions of a defendant were so closely related in fact as to constitute in substance but a single crime,” Commonwealth v. Jones, 441 Mass. at 75 , arises frequently in cases of sexual assault. In Commonwealth v. Thomas, 401 Mass. 109, 119-120 (1987), for example, a defendant was convicted of both indecent assault and battery and forcible rape. To the extent that the former is a lesser included offense of the latter, see Commonwealth v. Egerton, 396 Mass. 499 , 503 n.3 (1986), the two convictions could stand only if each conviction were premised on a separate act — e.g., an indecent touching distinct from the act of penetration. After a review of the record, the court in Thomas concluded that the defendant’s actions, united in time, place, and purpose, “were so closely related in fact as to constitute in substance but a single crime,” and on that basis vacated the conviction for the lesser included offense. Id. at 120 , quoting from Commonwealth v. St. Pierre, 377 Mass. at *517 662-663 . However, it is only in this context — where cognate crimes are charged — that the question whether actions are “so closely related as a matter of fact as to constitute in substance but a single crime” is material; where, as in the present case, the crimes charged have mutually exclusive elements, the nature of the conduct underlying the charges is “wholly irrelevant.” Commonwealth v. Jones, 441 Mass. at 76 , quoting from Commonwealth v. Jones, 59 Mass. App. Ct. at 162 .

Thus, the defendant, by invoking the “so closely related in fact as to constitute in substance but a single crime” standard, has attempted to import an analytical approach that is utterly inapposite to her situation. Again, that standard is relevant only to the question of how many separate criminal acts a defendant has committed, not to the independent question whether multiple convictions based upon a single act are lawful. The latter depends solely on whether the crimes charged have mutually exclusive elements. Where they do, no further inquiry is required.

Over the years, the Supreme Judicial Court has repeatedly emphasized its reliance on such an elements-based approach to determining whether multiple convictions on the basis of a single act are permissible, frequently clarifying its own opinions to make this very point. In Commonwealth v. Crocker, 384 Mass. 353, 358-359 (1981), for example, the court expressly overruled Commonwealth v. Catania, 377 Mass. 186, 191 (1979), and Commonwealth v. Cerveny, 373 Mass. 345, 355-356 (1977), to the extent that either case “looked beyond the required elements of the statutory offenses ... to the actual evidence introduced at . . . trial” in determining whether multiple convictions based upon a single act violated double jeopardy protections. Likewise, in Commonwealth v. Jones, 441 Mass. at 76 , the Supreme Judicial Court sharply limited its holding in Commonwealth v. Santos, 440 Mass. 281, 292-294 (2003), a decision in which conduct arguably was considered in assessing whether multiple convictions for noncognate offenses was permissible. In Jones, the Supreme Judicial Court’s most recent articulation of the law in this area, the court made it clear that nothing in Santos was intended to impugn the elements- *518 based approach, concluding its decision with the admonition that the “result [in Santos] ... is case specific and does not modify the traditional rule in any respect.” Commonwealth v. Jones, 441 Mass. at 77 .

To summarize, multiple convictions based upon a single act are lawful provided that none of the crimes charged is a lesser included offense of any other. In determining whether one offense is included within another, courts must look exclusively to the statutory elements, without regard to the actual conduct alleged. Conduct is relevant only where a defendant is convicted of cognate crimes (as determined by reference to the latter elements-based standard), and only for the purpose of determining whether each conviction is based upon an independent act. Multiple convictions of cognate crimes are permissible only where such convictions are based on discrete acts. Here, to the extent that the defendant concedes that arson of a dwelling and manslaughter have mutually exclusive elements, the question whether the convictions are based on a single act or multiple acts is wholly irrelevant. In either case, there would be no infirmity in the multiple convictions.

Needless to say, to the extent that it is generally a simple matter to determine whether one offense is included within another, most appellate decisions involving the question of duplicative convictions present situations where the inquiry is focused on the comparatively thornier question of how many discrete acts, each capable of supporting an independent conviction, a particular defendant has committed. For this reason, the analysis in most cases involving alleged duplicative convictions is framed in terms of “whether the actions of a defendant were so closely related in fact as to constitute in substance but a single crime.” However, as Tocqueville observed, the familiar should not be confused with the necessary. 2 Where noncognate offenses are charged, no inquiry into conduct is necessary. That is the situation here.

Before concluding, it is worth exploring the roots of the confusion that bedevils both the majority opinion, as well, as decisions like Commonwealth v. Morin, 52 Mass. App. Ct. at *519 787 , the case on which the defendant chiefly relies. The notion that two offenses, while not greater and lesser crimes by reference to a pure elements-based test, may nonetheless be “so closely related in fact as to constitute in substance but a single crime,” first arose in dicta in Commonwealth v. St. Pierre, 377 Mass. at 663 . As noted above, this phrase was quickly coopted by cases focusing on the question whether a stream of related criminal conduct could be divided into separate and independent acts. This is the context in which that standard now is properly employed.

However, in its original context in St. Pierre, supra, as the cases cited there make plain, the phrase was intended to capture situations in which two offenses with small, technical differences in their statutory elements might nonetheless be deemed cognate crimes. 3 In Costarelli v. Commonwealth, 374 Mass. 677, 684 (1978), for example, the court concluded that use without authority is included within larceny of a motor vehicle, despite the fact that the latter does not require evidence of use on a public way. It was enough for the court that all of the elements ordinarily in issue where unauthorized use is charged are likewise elements of larceny of a motor vehicle. Ibid. A similar approach was adopted by the Supreme Judicial Court in Commonwealth v. Walker, 426 Mass. 301, 304-305 (1997). In Walker , the Supreme Judicial Court considered whether G. L. c. 265, § 13B, indecent assault and battery of a child under fourteen years of age, could be considered a lesser included offense of G. L. c. 265, § 22A, forcible rape of a child under sixteen years of age, in view of the disparity in the age thresholds. While conceding that the case presented a close question, the court ultimately concluded that the two offenses were, in fact, cognate crimes, at least where a victim, in fact, was aged less than fourteen years. Id. at 306.

This form of analysis, a minor departure from a strictly mechanical approach to the elements-based test for defining cognate crimes, nonetheless still examines “the elements of the *520 crimes charged . . . objectively, abstracted from the facts.” Commonwealth v. Jones, 441 Mass. at 76 , quoting from Commonwealth v. Jones, 59 Mass. App. Ct. 157, 162 (2003). However, to the extent that St. Pierre’s “so closely related in fact as to constitute in substance but a single crime” test is now commonly used in cases where conduct is relevant (that is, where cognate crimes are charged), it is perhaps easy to conflate the two applications of this standard — its original meaning in St. Pierre and its current use in “separate acts” analysis — and mistakenly arrive at the conclusion that (a) the elements-based test is subject to exceptions, and (b) conduct is relevant to determining whether such an exception applies in a particular case. That, however, is not the law. 4

Another potential source of confusion is the fact that some decisions take a belt-and-suspenders approach to rebutting claims of duplicative convictions; that is to say, they consider both whether the crimes charged are cognate offenses and whether the offenses may be pegged to separate acts. This provides additional emphasis in situations where either approach will provide a basis for affirmance. Typical of this category is Commonwealth v. Wolinski, 431 Mass. 228, 238-239 (2000). In Wolinski , the defendant was charged with assault and battery by means of a dangerous weapon and armed robbery. First, the court engaged in a strict elements-based review of the two offenses and concluded that the convictions were not duplicative “because each crime required proof of a fact that the other did not.” Id. at 238 . Then, the court noted, as an *521 independent basis for affirmance, that the jury could have concluded that the two convictions were, in any event, based on separate acts. Id. at 239 . However, the court made it clear that these were alternate bases for affirmance; either would have been sufficient to defeat the defendant’s allegations of duplication.

A case like Wolinski , however, might be misinterpreted to stand for the proposition that unless a court finds both separate acts and noncognate offenses, multiple convictions violate double jeopardy protections. This misconstrues the law. Either is sufficient, standing alone, to support multiple convictions.

In any event, as the multiple convictions here are proper, I concur in the majority’s result.

Cognate offenses are those where one crime is a lesser included offense of the other or where there are multiple counts of the same offense.

See Griffin v. Illinois, 351 U.S. 12, 20 (1956) (Frankfurter, J., concurring).

St. Pierre itself involved the technical question whether assault and battery is a lesser included offense of both species of mayhem, i.e., actual mutilation and assault with intent to mutilate. Commonwealth v. St. Pierre, 377 Mass. at 661-662 . See G. L. c. 265, § 14.

It is also worth noting that it is unclear whether this portion of St. Pierre survived Commonwealth v. Crocker, 384 Mass. at 358-359 , decided two years later. As noted, Crocker overruled Commonwealth v. Catania, 377 Mass. at 191 , one of the cases on which the relevant dicta in St. Pierre relied. See Commonwealth v. Arriaga, 44 Mass. App. Ct. at 387-388 (dicta in St. Pierre that is at odds with strict elements-based approach to defining cognate crimes was overruled by Crocker); Michel, Multiple Convictions Based on a Single Act, 86 Mass. L. Rev. 165 , 166-167 (2002) (St. Pierre relevant only to cases involving cognate crimes). Along these lines, no Supreme Judicial Court decision since Crocker ■— at least none that was not subsequently overruled or limited — has ever held that convictions were duplicative when the crimes charged had mutually exclusive elements under a strict elements-based test. Commonwealth v. Walker, 426 Mass. at 303 , did not actually involve alleged duplicative convictions, but rather was focused on the propriety of the trial judge’s lesser included offense instructions.