Commonwealth v. Rodriguez ( 2017 )

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SJC-12093
COMMONWEALTH vs. BRANDON RODRIGUEZ.
Bristol. October 5, 2016. - February 1, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.
Receiving Stolen Goods. Larceny. Constitutional Law, Double
jeopardy. Practice, Criminal, Dismissal, Double jeopardy,
Collateral estoppel. Due Process of Law, Collateral
estoppel, Prosecutorial vindictiveness. Estoppel.
Collateral Estoppel. Judicial Estoppel.
Complaint received and sworn to in the New Bedford Division
of the District Court Department on July 24, 2013.
A motion to dismiss was heard by Lisa F. Edmonds, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Roger L. Michel, Jr., Assistant District Attorney, for the
Commonwealth.
Timothy St. Lawrence for the defendant.
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
2
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
1
This background section is based on the prosecutor's
opening statement at trial, as the judge directed a verdict of
not guilty before any evidence was introduced. The defendant
maintains he is innocent. That the facts are disputed has no
bearing on our decision in this appeal.
3
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
2
As discussed infra, this was an erroneous statement of the
law.
4
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
3
It is not apparent from the record why this judge heard
this motion, as it had already been decided. The judge denied
the prosecutor's request for an opportunity to brief the matter
despite his protest that a different prosecutor had briefed and
argued the issue previously.
5
that the defendant was the thief. Commonwealth v. Corcoran, 69
Mass. App. Ct. 123, 127 (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 (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, cert. denied, 510 U.S. 815 (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 (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 (2002), cert. denied, 538 U.S. 962
(2003).
4
General Laws c. 263, § 7, provides: "A person shall not
be held to answer on a second indictment or complaint for a
crime of which he has been acquitted upon the facts and merits
. . . ."
6
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
5
In a case of successive prosecutions, the defendant has
already been "put in jeopardy" for the first charge. The
pertinent double jeopardy question that arises prior to the
second trial is whether the defendant is being prosecuted again
for an offense of which he was previously acquitted or
convicted. See Morey v. Commonwealth, 108 Mass. 433, 434 (1871)
(prior acquittal or conviction is bar to subsequent prosecution
for same offense). In a single prosecution, the question of
double jeopardy arises at the sentencing stage. See, e.g.,
Commonwealth v. Valliere, 437 Mass. 366, 371-372 (2002) ("The
appropriate remedy for duplicative convictions, so as to prevent
multiple punishments, is to vacate both the conviction and
sentence on the lesser included offense, and to affirm on the
more serious offense" [emphasis added]).
6
We and the United States Supreme Court have already
rejected two other tests that have emerged over the years.
The same transaction test would require a prosecutor to
bring "all charges arising out of the same incident or
transaction" in a single prosecution. See Commonwealth v.
Gallarelli, 372 Mass. 573, 578-579 (1977) (discussing and
rejecting same transaction test). It would bar separate
prosecutions for multiple crimes committed during the course of
a crime spree, or for conspiracy and the substantive act. See,
e.g., Glawson v. Commonwealth, 445 Mass. 1019, 1020 (2005),
cert. denied, 547 U.S. 1118 (2006). Although the Model Penal
Code and at least one Justice of the Supreme Court have
advocated for adoption of this test, see Model Penal Code
§ 1.07(2) (1962); Ashe v. Swenson, 397 U.S. 436, 452-456 (1970)
7
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, 12 Pick. 496
(1832). See Blockburger v. United States, 284 U.S. 299, 304
(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 (1990) 7 (Scalia, J., dissenting)
("We have applied the Roby-Morey-Gavieres-Blockburger
(Brennan, J., concurring), we and the Supreme Court have
consistently rejected it. See Mass. R. Crim. P. 9 (a), 378
Mass. 859 (1979) (permitting but not requiring joinder by
prosecutor of offenses based on same criminal conduct or
episode); United States v. Dixon, 509 U.S. 688, 709 n.14 (1993);
Glawson, supra ("no double jeopardy violation merely because a
defendant is tried separately for different offenses arising
from a single transaction or series of events").
The same evidence test "would prevent the government from
introducing in a subsequent prosecution any evidence that was
introduced in a preceding prosecution." Grady v. Corbin, 495
U.S. 508, 521 n.12 (1990), overruled by Dixon, 509 U.S. at 704.
Here, for example, the Commonwealth could not introduce the
allegedly stolen ring in a trial on the larceny complaint if the
ring had been used in the prosecution of the receipt charge.
This test has been soundly rejected. See Dixon, supra;
Commonwealth v. Woods, 414 Mass. 343, 351, cert. denied, 510
U.S. 815 (1993).
7
As we discuss infra, the Grady case was expressly
overruled insofar as it required any test except the same
elements test. See Dixon, 509 U.S. at 704.
8
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 (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 (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, 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
9
which the defendant has already been prosecuted." Grady, 495
U.S. at 510. 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
(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. 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, 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 (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 double jeopardy where
10
offenses are "perfectly distinct in point of law, however nearly
they may be connected in fact"). See Commonwealth v. Johnson,
406 Mass. 533, 536 (1990) (adhering to same elements test months
before Grady was decided). We deviated from this tradition in
deference to Grady, which was subsequently overruled. 8 See
Woods, 414 Mass. at 346 (applying Grady test before Dixon was
decided). Since Dixon, we have again rejected the same conduct
test in the context of a single prosecution. See Vick, 454
Mass. at 433-434. By urging us to differentiate between single
and successive prosecutions, the defendant would have us
overturn long-standing precedent: Morey, the seminal case
articulating the same elements test, involved successive
prosecutions (albeit prosecutions in the same term of the
court). See Morey, 108 Mass. at 434. See also Commonwealth v.
Gallant, 65 Mass. App. Ct. 409, 414-415 (2006) ("it is difficult
to see how . . . a conduct-based test could ever possibly mesh
with the Morey standard").
8
The cases to which the defendant cites do not change this
tradition, as those cases did not decide to apply any test other
than the same elements test, but only noted that defendants in
successive prosecutions may require additional protection. We
discuss this in more detail in part 3, infra, in the section on
equitable protections. See, e.g., Commonwealth v. Crocker, 384
Mass. 353, 359 n.7 (1981) ("Determining whether such cases
involve reprosecution for the 'same offense' may require
consideration of the actual facts developed at trial in support
of the charge tried first" [emphasis added]).
11
We are also guided by the historical adherence to the same
elements test, which best balances protection of the defendant
with other considerations: due process and fairness,
prosecutorial discretion, a desire to allow for severance of
defendants and offenses into separate trials, and respect for
the dignity of multiple victims of criminal behavior. See Ashe
v. Swenson, 397 U.S. 436, 468-469 (1970) (Burger, C.J.,
dissenting on other grounds); Commonwealth v. Gallarelli, 372
Mass. 573, 578 (1977). Thus, the same elements test remains the
only appropriate analysis, in both single and successive
prosecutions.
b. Application of the same elements test. To prove
larceny, the Commonwealth must show that (1) the defendant took
and carried away property; (2) the property was owned or
possessed by someone other than the defendant; and (3) the
defendant did so with the intent to deprive that person of the
property permanently. G. L. c. 266, § 30 (1) ("Whoever steals
. . . the property of another . . . shall be guilty of larceny
. . ."). See Commonwealth v. Donovan, 395 Mass. 20, 25-26
(1985). Receipt of stolen property requires that (1) the
property in question was stolen; (2) the defendant knew that the
property had been stolen; and (3) the defendant received or
aided in the concealment of the stolen property. G. L. c. 266,
§ 60 ("Whoever buys, receives or aids in the concealment of
12
stolen . . . property, knowing it to have been stolen . . .
shall be punished . . ."). See Commonwealth v. Donahue, 369
Mass. 943, 949, cert. denied, 429 U.S. 833 (1976). Larceny thus
requires that the defendant be the thief, whereas receipt
"requires that the property already be stolen at the time of
receipt." Corcoran, 69 Mass. App. Ct. at 127 n.6. As a result,
the offenses are not identical, and neither is a lesser included
offense of the other. Instead, any intuitive connection between
larceny and receipt arises because they have a principal-
accessory relationship. See Commonwealth v. Finn, 108 Mass.
466, 468 (1871) ("The offence of receiving stolen goods is
accessory, only, to the principal offence of larceny. The
receiver is an accessory after the fact"). See also
Commonwealth v. Berryman, 359 Mass. 127, 129 (1971) ("under our
law one cannot be both a principal in a crime and an accessory
after the fact to the same crime"); Commonwealth v. DiStasio,
297 Mass. 347, 357, cert. denied, 302 U.S. 683 and 302 U.S. 759
(1937) (principal and accessory offenses are distinct for double
jeopardy purposes), citing Roby, 12 Pick. at 504. See generally
Commonwealth v. Nascimento, 421 Mass. 677, 683 (1996) (defendant
may be charged with both larceny and receipt, but logically may
not be convicted of both offenses). Because larceny and receipt
are not the same offense for double jeopardy purposes, dismissal
13
of the larceny complaint on double jeopardy grounds is not
warranted.
3. Equitable protections. Successive prosecutions raise
concerns not present in single prosecutions. See Dixon, 509
U.S. at 724 (White, J., concurring in part and dissenting in
part) ("To subject an individual to repeated prosecutions
exposes him to embarrassment, expense and ordeal, . . . violates
principles of finality, . . . and increases the risk of a
mistaken conviction" [citations omitted]). Despite these
concerns, "[i]t is quite central to a prosecutor's necessary
discretion that he retain the prerogative, after obtaining a
first set of indictments, to initiate additional prosecutions
for separate and distinct crimes." Johnson, 406 Mass. at 538-
539. See E.B. Cypher, Criminal Practice and Procedure § 25:56
(4th ed. 2014) ("there is no statutory or constitutional right
on the part of any person to be charged simultaneously, either
by complaint or indictment, with all the offenses of which the
police or prosecution might then be aware and which might have
been committed in the course of a single act").
Defendants facing successive prosecutions have three
additional sources of protection aside from the bar against
double jeopardy: due process protection (against prosecutorial
overreach), collateral estoppel, and judicial estoppel. Given
14
the procedural background that preceded the larceny complaint,
these factors are not present here.
a. Due process. Due process concerns would arise when a
defendant could show prosecutorial vindictiveness or
retaliation. See Commonwealth v. Gonzalez, 388 Mass. 865, 870
n.9 (1983) (same elements test is constitutionally sufficient
"unless successive prosecutions are used to harass the
defendant"). A defendant has a heavy burden to demonstrate that
there was prosecutorial vindictiveness: there must be a high
likelihood of actual vindictiveness, and application of the
doctrine must not "unduly undermine normal prosecutorial
discretion" to bring charges in multiple prosecutions. Johnson,
406 Mass. at 537. Here, the Commonwealth brought the new charge
after the trial judge (erroneously) dismissed the pending charge
of receipt of stolen property. The Commonwealth initially
applied for a single complaint charging both offenses, but
failed because a key witness was unavailable to the police until
the day of the trial. See Glawson v. Commonwealth, 445 Mass.
1019, 1021 (2005, cert. denied, 547 U.S. 1118 (2006) (noting
that Commonwealth sought to consolidate issues). As the second
complaint was not the result of prosecutorial vindictiveness,
due process concerns are inapplicable here.
b. Collateral estoppel. Collateral estoppel, also known
as issue preclusion, is another possible form of protection for
15
defendants who face successive prosecutions. See generally
Yeager v. United States, 557 U.S. 110, 119 n.4 (2009). The
doctrine bars relitigation of an issue where the defendant can
show that "there is (1) a common factual issue; (2) a prior
determination of that issue in litigation between the same
parties; and (3) a showing that the determination was in favor
of the party seeking to raise the estoppel bar" (footnotes
omitted). Krochta v. Commonwealth, 429 Mass. 711, 715-716
(1999). See Kimbroughtillery v. Commonwealth, 471 Mass. 507,
510–512 (2015) (principles of collateral estoppel barred
successive probation revocation proceedings).
In applying the doctrine, courts recognize that even where
the offenses charged in successive prosecutions do not rise to
the level of double jeopardy, relitigation of issues that are
common to both cases may harm the defendant. See Brown v. Ohio,
432 U.S. 161, 166 n.6 (1977); Commonwealth v. Scala, 380 Mass.
500, 505 (1980). In this case, when the trial judge directed
the verdict of acquittal, he made a determination (erroneously)
only on the issue of receipt -- which is not an element of
larceny and thus not a common factual issue. Collateral
estoppel does not apply.
c. Judicial estoppel. The final doctrine potentially
available to a defendant in the case of successive prosecutions
is judicial estoppel, which "prevent[s] the manipulation of the
16
judicial process by litigants" (citation omitted). Commonwealth
v. DiBenedetto, 458 Mass. 657, 671 (2011), S.C., 475 Mass. 429
(2016). As an equitable doctrine, judicial estoppel may be
appropriate where "a party has adopted one position, secured a
favorable decision, and then taken a contradictory position in
search of legal advantage." Otis v. Arbella Mut. Ins. Co., 443
Mass. 634, 641 (2005), quoting InterGen N.V. v. Grina, 344 F.3d
134, 144 (1st Cir. 2003). For example, where the Commonwealth
has already secured a conviction against a defendant, it may not
bring a new charge positing a different theory of the same
underlying act. Commonwealth v. Gardner, 67 Mass. App. Ct. 744,
747-748 (2006) (conviction constituted favorable decision for
Commonwealth). In the instant case, however, the defendant was
effectively acquitted of the charge of receipt. As the trial
judge expressly rejected the Commonwealth's position with
respect to receipt, judicial estoppel does not preclude the
complaint for larceny.
Conclusion. Because the charges alleged in the two
complaints were not the same offense and other equitable
concerns do not weigh in favor of dismissal, we reverse the
allowance of the defendant's motion to dismiss on the ground of
double jeopardy.
So ordered.