Section Review

Duplicative convictions and punishments: The Morey rule survives for convictions, but has a new rule been created for punishments?

Christina Miller is an assistant district attorney with the Suffolk County District Attorney's Office. This article represents the opinions and legal conclusions of its author and not necessarily those of the Suffolk County District Attorney's Office.

Introduction

Before the recent case of Commonwealth v. Jones,1 there existed confusing precedent about whether multiple convictions could be duplicative based on an element-based or fact-based analysis. Some cases indicated that if the same exact act occurred in the same exact time, the convictions would be duplicative even if each crime had different elements.2 Other cases used a strict element-based test, ruling that if each crime had an element the other did not, the convictions would not be duplicative.

In Jones, the Supreme Judicial Court re-established that convictions were not duplicative if the elements of the statutory offenses charged each required a different element.3 The Jones court also made clear that this was the only test applied in finding duplicative convictions.4 As for punishments, the court found that it was possible for punishments of two crimes that are not lesser-included offenses to be duplicative because they occurred during a "single event."5 Questions remain, however, as to the circumstances under which factually duplicative punishments can be found.

Duplicative convictions before Commonwealth v. Jones

In 1981, the Massachusetts Supreme Judicial Court appeared to resolve the dispute whether two convictions were duplicative when based on the same facts, but different elements. The court in Commonwealth v. Crocker,6 following Morey v. Commonwealth,7 found that convictions are not duplicative if each crime requires proof of an element that the other does not require.8 The Crocker court determined that this test would examine "the elements of the statutory offenses charged to determine whether each offense requires" a different element.9 One reason for adopting this test was to uphold the legislature's intent in establishing separate crimes.10 This test was applied without consideration of the actual facts presented.

After Crocker, both the Supreme Judicial Court and the Appeals Court, at times, used a fact-based test to analyze claims of duplicative convictions, an analysis inconsistent with the element-based test adopted in Morey and reinforced by Crocker. Two cases reversed convictions that were not lesser-included offenses by finding that the same facts supported both convictions, using a fact-based, "single event" test.11 Other cases mentioned a "single event" test where non-lesser included crimes were committed, and found that there was no "single event."12 There were also cases that upheld the use of the Morey test as recognized in Crocker, either eschewing any fact-based analysis or specifically rejecting a fact-based analysis.13 Given this confusing precedent, clarification of the law in this area was necessary.

Commonwealth v. Jones

Duplicative convictions

In Commonwealth v. Jones,14 any confusion was eliminated. The Jones court ruled that "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," reasserting the Crocker rule.15

The Jones court limited the use of a fact-based test to lesser-included offenses, stating:

a court may examine 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). In such cases, the defendant cannot properly be sentenced both for the more serious crime and the lesser included offense. See Commonwealth v. Thomas, 401 Mass. 109, 119-121 (1987) (indictment for indecent assault and battery dismissed where defendant convicted of rape). Cf. Commonwealth v. Jones, [382 Mass. 387,] 394 [(1981)] ("although vehicular homicide not lesser included crime of manslaughter, two offenses were sufficiently closely related so as to preclude punishment on both").16

When the court referred to criminal acts being "so closely related in fact," it proceeded to refer to "such cases" as those that involve lesser-included offenses.17 Therefore, a court should conduct a factual analysis to determine whether two crimes constitute a "single event" only when one crime is a lesser-included offense of the other.18 This is consistent with the legislature's intent and rules of statutory construction.

Underlying the Jones opinion is the premise that the element-based test is appropriate because, "departure from the Morey test, as applied to the prosecution of multiple offenses in a single criminal trial, runs the risk of unnecessary intrusion into the legislative prerogative to define crimes and fix punishments."19

Once the Legislature has acted by defining a crime and its punishment, the court's role in this area is limited to implementing the legislative intent behind the statute. In short, the prohibition against duplicitous convictions limits not the legislative power to declare substantive criminal law but rather the judicial interpretation of that law.20

Any rule other than the Morey rule concerning duplicative convictions would intrude on the legislature's power. "[T]he Legislature 'ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the 'same offense . . . they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.'"21 Therefore, when the offenses are not the "same," as defined by the Morey element-based test, it is the legislature's intent to have each crime treated separately.22 These precepts ensure that no court will substitute its judgment for the judgment of the legislature.23 Therefore, a person may be charged and convicted of two separate crimes with a single act if those crimes have mutually exclusive elements.

The Supreme Judicial Court found as much in Crocker,24 reversing the parts of Commonwealth v. Catania25 and Commonwealth v. Cerveny,26 that "looked beyond the required elements of the statutory offenses (which is the focus of Morey) to the actual evidence introduced at the defendant's trial."27 As such, the defendant's convictions in Crocker for both larceny and uttering were upheld because they had mutually exclusive elements, even though based on a singular act.28 Also, as in Jones, the defendant's convictions for burning a motor vehicle and burning to defraud an insurer were not duplicative because the first required proof that the object burned was a motor vehicle as defined by Massachusetts General Laws chapter 90, section 1 and the later required proof of intent to defraud an insurer.29

In reaffirming the Morey test for convictions, the court addressed its recent decision in Commonwealth v. Santos.30 The Santos court found two convictions factually duplicative and vacated one conviction.31 The Santos opinion left the impression that the court was overturning Crocker, sub silentio, by reversing a conviction that was not a lesser-included offense where the convictions were based on the same facts.32 However, the Jones court made clear that the finding in that case was "predicated on a concession" by the commonwealth in its brief.33 The Jones court also rejected the holding in Santos as a broad rule, stating that "a defendant may be properly convicted of both [crimes] when a single criminal episode leads to his prosecution on both charges."34 The result in Santos was "case specific and does not modify the traditional rule in any respect."35 The Jones court clarified that Santos was based on a briefing waiver by the parties, not an intent to overrule Crocker. Therefore, Santos cannot support an argument that convictions are factually duplicative.

Duplicative punishments

Although convictions for two different crimes complies with double jeopardy protections when neither is a lesser-included offense of the other, the Supreme Judicial Court's cases have expressed concern where a defendant is punished twice for the same exact act. Such concern was expressed in Commonwealth v. St. Pierre,36 stating "there may be an element of harassment in the use of multiple charges in the same prosecution when they open up a prospect of 'double' punishment for crimes not duplicative in a technical sense, but so closely related in fact as to constitute in substance but a single crime."37 The St. Pierre court found that "aggravation of punishments" is avoided when it "impose[s] . . . concurrent sentences."38 The St. Pierre court did not vacate one of the two charges that the defendant claimed were factually duplicative (but were not duplicative under the Morey test) because concurrent sentences were imposed.39 With this background, the Jones court addressed duplicative punishments.

The Jones court accepted the possibility that consecutive punishments for the same conduct can be barred.40 The Jones court stated, "the defendant can be punished for violating both [non-lesser-included offenses] unless it can be said with certainty that his actions were 'so closely related in fact as to constitute in substance but a single crime.'"41 The Jones court did not find duplicative punishments because the defendant's "actions were separated both temporally and by different forms of conduct," those "forms" being expressed by "separate intents."42 The court identifies (1) temporality and (2) the "form" of the conduct as the two factors used to determine if punishments are factually duplicative.43

Before looking at these factors, it is significant to note that the second factor constitutes a change in existing law. In most of the cases where factual duplicativeness has been found, the defendant's acts were deemed to be a "single event," irrespective of the "form" the criminal act took or how many "intents" the defendant exhibited. A "single event" has typically been found when the exact same act constituted two different crimes, as in Commonwealth v. Richard Jones,44 where the defendant's singular act of hitting a van while drunk and killing three persons in that van could not support separate punishments for vehicular homicide and manslaughter. The previously used factor of temporality and the new factor of form of conduct each raise questions about future application.

Temporal separation. The largest problem with temporal separation analysis lies in evaluating which facts are included in a "single event" and which are not. Essentially, the question is, where does one event stop and the next one begin? Does the event have to be the same exact act as in Richard Jones,45 where defendant hit one car while driving drunk, to find duplicative punishments? Can the event be a series of acts as in Morin, where defendant touched the victim's breasts, locked her in her apartment, told her he wanted to have anal sex with her and attempted to pull down her shorts,46 to find duplicative punishments. Can the event span some longer period of time, several days perhaps, and still be found the same event as long as the acts used to prove both crimes are the same? With such flexible boundaries as to when an event is "singular" or not, the potential for inconsistent applications, as can be seen among cases such as Jones and Morin, is high.47 The court's finding in Jones, that the defendant's actions "were separated . . . temporally," leaves open the possibility that a defendant very well may be subject to fewer convictions for his actions if he commits them within a short period of time, as in Richard Jones, as compared to a defendant who spreads out his crimes, as in Wolinski, where convictions for assault and battery with a dangerous weapon and armed robbery were not found duplicative under the element-based test where the defendant hit the victim multiple times with a flashlight and took her money while holding the flashlight in his hand during a singular incident.48

Forms of conduct and intents. The Jones court also left open the possibility that multiple punishments will be upheld even when the defendant's acts are the same, if the defendant perpetrates "different forms of conduct."49 The court was most likely addressing a case such as Commonwealth v. Johnson.50 In Johnson, the defendant threatened the victim and, by such act, violated a protective order. A pure fact-based analysis would require consecutive sentences for each crime because both crimes were committed by exactly the same act. Treating this one act as duplicative, however, would be against the strong weight of legislative intent to punish both acts.

By addressing the separate intents required for the defendant to commit the separate acts, the Jones51 court was addressing the "forms" of conduct the legislature intends to punish separately.52 Therefore, the court seemed to be indicating that a singular act may be punished twice if the legislature furthers separate goals by making the same act criminal through two different statutes. The problem with this approach is the subjective nature of reading the legislature's intent outside of the Morey rule. For example, consider a defendant who assaults a person by brandishing a knife, taking money, and then commits a separate battery by stabbing the person. Arguably, the defendant has committed an armed robbery and an assault and battery with a dangerous weapon.53 Does the legislature intend to punish each crime separately? Although the armed robbery requires the taking of property and the assault and battery by means of a dangerous weapon requires an actual battery, both are punishing the use of violence. It could be argued that the legislature intended to punish the extra act of taking the victim's property over and above the use of violence. It could be argued that the legislature intended to punish the extra act of causing physical injury to the victim. Yet, it also could be argued that the stabbing aided the armed robbery and all of the actions were a "single event." With little guidance, significant questions remain that will have to be addressed on a case-by-case basis.

Conclusion

In Jones, the Supreme Judicial Court has definitively resolved that convictions are not duplicative when each crime has an element the other does not - eliminating any possibility that convictions can be found factually duplicative. Duplicative punishments, on the other hand, can potentially be found when a single criminal act or series of events allow(s) prosecution and conviction under different statutes. Questions remain as to how temporality and forms of conduct can be consistently applied to different sets of facts.

End notes

1. 441 Mass. 73 (Feb. 13, 2004).[back]

2. See Commonwealth v. Morin, 52 Mass. App. Ct. 780, 787-88 (2001) (reversed indecent assault and battery conviction as duplicative of assault with intent to rape conviction where defendant grabbed victim's breast, locked her in an apartment, told her he wanted to have sex with her and attempted to pull down her shorts).[back]

3. Jones, 441 Mass. at 75.[back]

4. Id. at 75-76.[back]

5. Id. at 76.[back]

6. 384 Mass. 353, 357 (1981).[back]

7. 108 Mass. 433, 434 (1871).[back]

8. Crocker, 384 Mass. at 357. See also Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932) (adopting this test for federal offenses). For collected cases supporting "the proposition that statutory construction continues to govern the question of whether charged offenses are separate," see United States v. Mireles, 17 M.J. 781, 783 n.2 (U.S. Air Force C.M.R. 1983).[back]

9. Id.[back]

10. Id.[back]

11. See Commonwealth v. Santos, 440 Mass. 281, 293-94 (2003) (reversed assault with a dangerous weapon conviction as factually duplicative of armed robbery where defendant pointed gun to the victim's head and then took her money); Morin, 52 Mass. App. Ct. at 787-88 (reversed indecent assault and battery conviction as duplicative of assault with intent to rape conviction where defendant grabbed victim's breast, locked her in an apartment, told her he wanted to have sex with her and attempted to pull down her shorts). [back]

12. See Commonwealth v. Wolinski, 431 Mass. 228, 238-39 (2000) (assault and battery with a dangerous weapon not lesser-included offense of armed robbery under Morey test where the defendant hit victim multiple times with flashlight and took money while holding flashlight in his hand); Commonwealth v. Maldonado, 429 Mass. 502, 509-10 (1999) (although no Morey analysis was conducted, assault and battery with a dangerous weapon and murder did not arise out of a single event where there were multiple shootings of each victim); Commonwealth v. Rivera, 397 Mass. 244, 252-54 (1986) (kidnapping and rape convictions not lesser-included offenses where separate facts supported each crime).[back]

13. See Commonwealth v. Buckley, 410 Mass. 209, 222-23 (1991) (convictions of murder with extreme atrocity and cruelty and armed robbery not duplicative under Morey test and no factual analysis raised, even where conducted plenary review); Commonwealth v. LeFave, 407 Mass. 927, 943 (1990) (indecent assault and battery is not lesser-included offense of statutory rape where, at the time, it required proof of lack of consent); Commonwealth v. Cepulonis, 384 Mass. 495, 502 (1981) (rejecting defendant's claim of duplicative convictions as "factually related," citing the Crocker test); Commonwealth v. Diaz, 53 Mass. App. Ct. 209, 211-12 (2001) (specifically refusing to analyze facts for duplicativeness, citing Commonwealth v. Arriaga, 44 Mass. App. Ct. 382, 389 (1998), and Kuklis v. Commonwealth, 361 Mass. 302, 306 (1972)); Commonwealth v. Johnson, 45 Mass. App. Ct. 473, 479-80 (1998) (noting this court "abandoned the conduct-based approach advocated here by the defendant, and 'permitted the imposition of multiple punishments'"); Arriaga, 44 Mass. App. Ct. at 387 ("the Supreme Judicial Court has abandoned the type of conduct-based approach endorsed in Costarelli, St. Pierre, and Jones, in favor of the Morey test").[back]

14. 441 Mass. 73 (Feb. 13, 2004).[back]

15. Id. at 75. [back]

16. Id.[back]

17. Id.[back]

18. Id. [back]

19. Crocker, 384 Mass. at 358-59.[back]

20. Id. at 360 (citing Whalen v. United States, 445 U.S. 684, 688-90 (1980); Brown v. Ohio, 432 U.S. 161, 165 (1977); Commonwealth v. Jones; 382 Mass. 387, 393-94 (1981)) (remaining citations omitted). [back]

21. Crocker, 384 Mass. at 360 (quoting Whalen, 445 U.S. at 692). See also Commonwealth v. Gordon, 42 Mass. App. Ct. 601, 604 (1997) ("The Legislature has the power to define criminal offenses," citing Commonwealth v. Jackson, 369 Mass. 904, 909 (1976)).[back]

22. See Commonwealth v. Katsirubis, 45 Mass. App. Ct. 132, 136 (1998) ("Where a newly enacted statute is silent about an already existing one, the indication is that the Legislature did not intend to repeal the existing one," citing 1A Singer, Sutherland Statutory Construction ß 23.10, at 353 (5th ed. 1992 & 1998 Supp.); Commonwealth v. Vickery, 381 Mass. 762, 765-66 (1980)).[back]

23. As Commonwealth v. Clerk-Magistrate, 439 Mass. 352, 355-56 (2003), makes clear:
It is a standard canon of statutory construction that "the primary source of insight into the intent of the Legislature is the language of the statute." International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983). A court may not add words to a statute that the Legislature did not put there. See General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 803 (1999), and cases cited. "Statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result." Sullivan v. Brookline, 435 Mass. 353, 360 (2001). See O'Brien v. Massachusetts Bay Transp. Auth., 405 Mass. 439, 443-444 (1989).[back]

24. Crocker, 384 Mass. at 359.[back]

25. 377 Mass. 186, 191 (1979).[back]

26. 373 Mass. 345, 355-56 (1977).[back]

27. Crocker, 384 Mass. at 359.[back]

28. Id. at 361. [back]

29. Jones, 441 Mass. at 76.[back]

30. Santos, 440 Mass. 281.[back]

31. Id.[back]

32. Id.[back]

33. Jones, 441 Mass. at 77.[back]

34. Id.[back]

35. Id.[back]

36. 377 Mass. 650, 661-63.[back]

37. There is indecision about whether the protection against duplicative punishments is rooted in the U.S. Constitution, is based in the Massachusetts Constitution or is merely a rule of statutory construction. See Missouri v. Hunter, 459 U.S. 359, 103 S. Ct. 673, 74 L. Ed.2d 535 (1983) (the same-element test is merely a rule of statutory construction to assist in ascertaining whether the legislative body intended cumulative punishment under the two statutes at issue and is not constitutionally based); Arriaga, 44 Mass. App. Ct. at 383 n.14 ("In recent years, the Supreme Judicial Court has engaged in increased speculation as to whether the Massachusetts double jeopardy rule is simply a common law protection or rather has a State constitutional grounding. As the Supreme Judicial Court stated in Commonwealth v. Forte, 423 Mass. 672, 674 (1996): 'The Commonwealth's Constitution has no explicit double jeopardy provision. However, certain double jeopardy concepts are no doubt embraced within the Massachusetts Constitution's due process of law provisions . . . .'").[back]

38. St. Pierre, 377 Mass. at 663.[back]

39. See id. at 662 & n.14 (assault and battery by means of a dangerous weapon not lesser-included offense of mayhem).[back]

40. Jones, 441 Mass. at 76.[back]

41. Id. (quoting Commonwealth v. St.Pierre, 377 Mass. 650, 662-63 (1979)) (emphasis added).[back]

42. Id. [back]

43. Id.[back]

44. 382 Mass. 387, 394 (1981).[back]

45. Id. at 393-94.[back]

46. Morin, 52 Mass. App. Ct. at 787-88.[back]

47. Compare Wolinski, 431 Mass. at 239 (even though one event, which encompassed separate acts of two blows to victim with flashlight and a separate threat with flashlight in hand while demanding money, multiple convictions not factually duplicative), with Morin, 52 Mass. App. Ct. at 787-88 (even though separate acts of touching victim's breasts, locking her in apartment, telling her he wanted to have anal sex and attempting to pull down her shorts, convictions found factually duplicative).[back]

48. Wolinski, 431 Mass. at 238-39. Additionally, findings of factually duplicative punishments deprives the sentencing court of their discretion to sentence the defendant for all the non-lesser included crimes committed.[back]

49. Jones, 441 Mass. at 76.[back]

50. 45 Mass. App. Ct. 473, 479-80 (1998). [back]

51. Jones, 441 Mass. at 76.[back]

52. See also Cepulonis, 384 Mass. at 502 (while possession of a machine gun and assault and battery by means of a dangerous weapon are both "designed to protect against violent crime . . . they further distinct legislative policies"); Crocker, 384 Mass. at 361 ("the statutes further distinct legislative policies"); Commonwealth v. Oliveira, 53 Mass. App. Ct. 480, 485-87 (2002) (where two statues contained in one chapter were "noticeably distinct in purpose," convictions not duplicative). [back]

53. Mass. Gen. Laws. ch. 265, ßß 15A, 17.[back]

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