Commonwealth v. Henderson (No. 1) , 89 Mass. App. Ct. 205 ( 2016 )

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14-P-1459 Appeals Court
COMMONWEALTH vs. KEITH HENDERSON (NO. 1).
No. 14-P-1459.
Hampden. October 5, 2015. - March 15, 2016.
Present: Vuono, Carhart, & Sullivan, JJ.
Motor Vehicle, Operation, Leaving scene of accident. Evidence,
Intent. Intent. Practice, Criminal, Instructions to jury,
Duplicative convictions, Double jeopardy. Constitutional
Law, Double jeopardy.
Indictments found and returned in the Superior Court
Department on April 9, 2013.
The case was tried before Edward J. McDonough, J.
Leslie H. Powers for the defendant.
Alyson C. Yorlano, Assistant District Attorney, for the
Commonwealth.
SULLIVAN, J. Following a trial on multiple indictments, a
jury convicted the defendant, Keith Henderson, on two
indictments charging leaving the scene of an accident causing
personal injury in violation of G. L. c. 90, § 24(2)(a1/2)(1),
and on three indictments charging leaving the scene of an
2
accident causing property damage in violation of G. L. c. 90,
§ 24(2)(a).1 On appeal, the defendant maintains that (1) the
judge erred in failing to instruct that the Commonwealth must
prove that he had the specific intent to leave the scene of the
accident, and (2) he was convicted of multiple counts of leaving
the scene of an accident in violation of his right to be free
from double jeopardy.2 We conclude that the jury were properly
instructed, but that, on the facts presented, the convictions
were duplicative. We therefore vacate the judgment on one of
the counts of leaving the scene of an accident causing personal
injury and the judgments on all but one of the counts of leaving
the scene of an accident causing property damage. We affirm the
remaining judgments.
Background. The evidence pertinent to the appeal may be
summarized as follows. Sean Kydd's car was taken from him at
gunpoint on March 5, 2013, by a man he was unable to identify.
Kydd filed a police report that day, reporting the car stolen.
1
The defendant was also convicted of one count of assault
and battery by means of a dangerous weapon, to wit, a motor
vehicle, in violation of G. L. c. 265, § 15A(b), and one count
of receiving a stolen motor vehicle in violation of G. L.
c. 266, § 28(a).
2
The defendant also presented other arguments, which we
address in a memorandum and order pursuant to our rule 1:28,
issued this same day. Commonwealth v. Henderson (No. 2),
Mass. App. Ct. (2016). To the extent relevant to the
convictions of leaving the scene, the memorandum and order is
incorporated by reference.
3
Nine days later on March 14, 2013, Kydd spotted his car in
Springfield and called the police. Two police officers in
marked police cruisers met Kydd, and all three drove separately
to where the car was located.
As the caravan passed Kydd's stolen car, one police officer
made eye contact with the driver, who was later identified as
the defendant. "[T]he [car] took off" in the opposite
direction. The officers followed in pursuit. The defendant
"continued accelerating" and "pull[ed] away at a good distance."
The defendant approached a red light at the corner of Wilbraham
Road and Alden Street and, instead of stopping, kept going. The
car driven by the defendant "sideswipe[d]" a vehicle that was
stopped at the red light, crossed the intersection, and crashed
a "split second" later into two other vehicles in the oncoming
lane of traffic. The officers estimated the defendant's speed
at the time of the accident as fifty-five to sixty and sixty-
five to seventy miles per hour in a thirty-five miles per hour
zone. Three cars were damaged, and two occupants of different
vehicles were injured.
The defendant got out of the car, stumbled, and tried to
run across the street toward a gas station on the corner. The
defendant ran for approximately twenty feet before he was
apprehended by police.
4
1. Jury instructions. At trial, the defendant argued that
he had not fled the scene; rather, he merely stumbled as he got
out of the car. Citing Commonwealth v. Liebenow, 470 Mass. 151,
157 (2014), the defendant, for the first time on appeal, now
attempts to recast his defense, stating that the judge should
have instructed the jury that the defendant must have the
subjective intent to flee the scene.3 The defendant's claim of
error rests on his contention that specific intent to leave the
scene is an element of the offense. The argument conflates
knowledge and intent, which are not wholly coterminous. See
Commonwealth v. Sama, 411 Mass. 293, 298 (1991). Knowledge is
the operative element under the statute.
"To prove the charge of leaving the scene of [property
damage], the Commonwealth must prove beyond a reasonable doubt
that (1) the defendant operated a motor vehicle (2) on a public
way (3) and collided with or caused injury in some other way to
another vehicle or to property; (4) the defendant knew that he
had collided with or caused injury in some other way to that
other vehicle or property; and (5) after such collision or
injury, the defendant did not stop and make known his name,
address, and the registration number of his motor vehicle.
3
Intent was not a live issue at trial. See Commonwealth v.
Gabbidon, 398 Mass. 1, 5 (1986). Counsel argued that the
defendant had not left and that, even if he intended to leave,
the police stopped him.
5
G. L. c. 90, § 24(2)(a)."4 Commonwealth v. Platt, 440 Mass. 396,
400 n.5 (2003). The elements of leaving the scene of an
accident causing personal injury are similar, except that the
Commonwealth must prove injury to the person rather than damage
to property. See G. L. c. 90, § 24(2)(a1/2)(1).5 See also
Commonwealth v. Muir, 84 Mass. App. Ct. 635, 638-639 (2013).
The knowledge required under each statute is virtually identical
-- the defendant's knowledge of the collision or the defendant's
knowledge of the injury or damage. The judge so instructed the
jury.
4
The statute provides: "Whoever upon any way or in any
place to which the public has a right of access, or any place to
which members of the public have access as invitees or
licensees, . . . without stopping and making known his name,
residence and the register number of his motor vehicle goes away
after knowingly colliding with or otherwise causing injury to
any other vehicle or property, . . . shall be punished by a fine
of not less than twenty dollars nor more than two hundred
dollars or by imprisonment for not less than two weeks nor more
than two years, or both . . . ." G. L. c. 90, § 24(2)(a),
inserted by St. 1975, c. 156, § 1.
5
The statute provides: "Whoever operates a motor vehicle
upon any way or in any place to which the public has right of
access, or upon any way or in any place to which members of the
public shall have access as invitees or licensees, and without
stopping and making known his name, residence and the
registration number of his motor vehicle, goes away after
knowingly colliding with or otherwise causing injury to any
person not resulting in the death of any person, shall be
punished by imprisonment for not less than six months nor more
than two years and by a fine of not less than five hundred
dollars nor more than one thousand dollars." G. L. c. 90,
§ 24(2)(a1/2)(1), inserted by St. 1991, c. 460, § 2.
6
The defendant construes one sentence in Platt to require
proof that the defendant "knowingly le[ft] the scene of an
accident involving property damage [or personal injury]."
Platt, supra at 401. From that sentence, the defendant derives
a requirement of subjective or specific intent to leave the
scene. The statute contains no requirement that the defendant
form the specific intent to leave the scene of an accident, and
the oft-used, though imprecise, shorthand description of the
offense contained in Platt does not add one.
Although there was at one time a statutory requirement that
a driver knowingly leave the scene, the statute has been amended
to remove the element of knowledge with respect to leaving the
scene of the accident. In 1909, the statute read, in pertinent
part: "who[ever] knowingly goes away without stopping and
making himself known after causing injury to any person or
property . . . shall be punished . . ." (emphasis supplied).
St. 1909, c. 534, § 22. The 1909 statute was interpreted to
require "a consciousness not only of the fact that [the
defendant] is going away, but of the further fact that he has
not made himself known." Commonwealth v. Horsfall, 213 Mass.
232, 237 (1913). The statute was amended in 1916 to require
knowledge of the collision or injury, but to remove the word
"knowingly" from the provision regarding leaving the scene of an
accident. See St. 1916, c. 290.
7
This amendment was purposeful. In Horsfall, the court
said, "It would have been simple for the Legislature to have
made the act of going away by the driver of an automobile
without making himself known after injuring person or property a
crime, and this would have been accomplished by omitting the
word 'knowingly' from the statute." Horsfall, supra at 236-237.
Clearly, the Legislature accepted this invitation in 1916.
Since 1924, this amendment has been consistently construed
to mean that "the act [of leaving the scene], irrespective of
intent, was made criminal." Commonwealth v. Coleman, 252 Mass.
241, 244 (1925). See Commonwealth v. Nurmi, 250 Mass. 128, 131
(1924) ("If [the defendant] had knowledge of such collision, it
was his duty under the statute not only to stop, but also to
make known his name, residence, and number of his motor
vehicle"). See also Commonwealth v. McMenimon, 295 Mass. 467,
468-470 (1936) (describing the change by the Legislature after
the Horsfall case). The judge's instructions were correct.
2. Duplicative convictions. The defendant maintains that
he could be properly convicted of and sentenced on only one
count of leaving the scene of personal injury and one count of
leaving the scene of property damage.6 He contends that his
6
The defendant appropriately acknowledges that he may be
convicted, consistent with double jeopardy purposes, of one
count each of the wholly separate offenses of leaving the scene
8
multiple convictions are duplicative and violate his right under
the Federal constitution to be free from double jeopardy. See
Commonwealth v. Constantino, 443 Mass. 521, 523-526 (2005).
"The double jeopardy clause of the Fifth Amendment to the
United States Constitution protects against three distinct
abuses: [1] a second prosecution for the same offense after
acquittal; [2] a second prosecution for the same offense after
conviction; and [3] multiple punishments for the same offense."
Id. at 523 (quotation omitted). Here, as in Constantino, "[w]e
are concerned with the third category of protection." Ibid.
Because this issue was not raised at trial, we review for a
substantial risk of a miscarriage of justice, mindful of the
fact that a duplicative conviction may constitute such a risk.
Id. at 526.
The statute is silent on this subject; hence we must
determine "whether the Legislature, in enacting the statute,
intended to punish the leaving of the scene of an accident
resulting in [personal injury or property damage] separately for
each victim [or item of property] or intended that a single
penalty attach to the unlawful course of conduct." Id. at 523.
In Constantino the Supreme Judicial Court held that a defendant
who had left the scene of an accident causing multiple deaths
of an accident causing property damage and leaving the scene of
an accident causing personal injury.
9
could be convicted of only a single count of leaving the scene.
We deal here with the same statute and amendment that the
Supreme Judicial Court was called upon to interpret in
Constantino. See G. L. c. 90, § 24(2); St. 1991, c. 460. In
Constantino the court interpreted the statute with respect to
the crime of leaving the scene of an accident causing personal
injury resulting in death, whereas here we confront personal
injury and property damage. See G. L. c. 90, § 24(2)(a1/2)(1);
G. L. c. 90, § 24(2)(a). The operative words of the statute, as
amended in 1991, are virtually identical with respect to leaving
the scene, whether it be the scene of an accident causing death,
personal injury, or property damage, and the rationale of
Constantino is fully applicable.
"[T]he proper 'unit of prosecution' under the statute is
the act of leaving the scene of the accident, not the number of
accident victims [or items of property damaged]." Constantino,
supra at 524. This is because the statute is "directed at
punishing the defendant for conduct offensive to society, as
distinct from punishing the defendant for the effect of that
conduct on particular victims." Commonwealth v. Traylor, 472
Mass. 260, 268-269 (2015) (quotation omitted). See Constantino,
supra. The Commonwealth maintains that multiple convictions are
appropriate because, unlike the single car accident in
Constantino, here there were three collisions involving damage
10
to three cars and injury to two passengers. Only one penalty
may be assessed under each statute for a single act of leaving
the scene, however, because "the proscribed act is scene
related, not victim related." Ibid., and cases cited.7
Our analysis does not end here, however. Multiple
convictions for the same offense may stand where the convictions
are predicated on separate and distinct acts, here the act of
leaving the scene. See Commonwealth v. Vick, 454 Mass. 418,
435-436 (2009). The Commonwealth argues that the defendant left
the scene of an accident twice, once when he sideswiped the
first car, and a second time when he ran away after colliding
with the other two cars. If so, at least two of the convictions
of leaving the scene of property damage would be upheld, as
would both of the convictions of leaving the scene of an
accident causing personal injury.
The evidence at trial was insufficient to permit a finding
of separate and distinct instances of leaving the scene of an
7
Other jurisdictions have reached the same conclusion. See
People v. Newton, 155 Cal. App. 4th 1000, 1002-1005 (2007)
(chain reaction multi-car accident causing injury to multiple
individuals; one scene); Yeye v. State, 37 So. 3d 324, 326 (Fla.
Dist. Ct. App. 2010) (chain reaction multi-car accident; one
scene); State v. Ustimenko, 137 Wash. App. 109, 116-119 (2007)
(chain reaction car accident causing injury to two individuals
and damage to a signpost; one scene); State v. Stone, 229 W. Va.
271, 276-281 (2012) (chain reaction multi-car accident causing
multiple deaths and injuries; one scene).
11
accident.8 There was a near instantaneous collision with three
cars, and flight from that single scene. In light of the
testimony of the witnesses that the two collisions occurred
within a split second, leaving the defendant with no opportunity
to stop after the first collision, the two incidents are "so
closely related in fact as to constitute in substance but a
single crime." Commonwealth v. Vick, supra at 435 (quotation
omitted). The defendant's "actions occurred 'in a single stream
of conduct' that was 'governed by a single criminal design.'"
Commonwealth v. Suero, 465 Mass. 215, 220 (2013), quoting from
Commonwealth v. Howze, 58 Mass. App. Ct. 147, 153 (2003).
Contrast Commonwealth v. Maldonado, 429 Mass. 502, 509-510
8
As a general rule, it is first for the judge to decide
whether the evidence is sufficient to permit the jury to find
separate and distinct acts. See Commonwealth v. Figueroa, 471
Mass. 1020, 1021-1022 (2015). Thereafter, whether there were
separate and distinct acts of leaving the scene, or a single
collision resulting in a single instance of leaving the scene,
would be a question for the jury. See ibid. See also
Commonwealth v. Maldonado, 429 Mass. 502, 509 (1999). Even if
we were to conclude that the evidence was sufficient to permit a
jury to find that there were separate and distinct instances of
leaving the scene, the Commonwealth did not argue at trial that
the defendant left the scene on two occasions. The jury were
not instructed that they had to find that the defendant left the
scene on two occasions. The jury may have convicted the
defendant of multiple counts of leaving the scene even though
they found that he had left the scene just once. "In such a
situation, even if the defendant does not object to the
duplicative convictions below," the duplicative convictions must
be vacated. Commonwealth v. Sanchez, 405 Mass. 369, 382 (1989).
Compare Commonwealth v. Mamay, 407 Mass. 412, 418-419 (1990)
(Commonwealth's closing argument obviated the risk);
Commonwealth v. Figueroa, supra (judge's instruction adequately
informed the jury of its task).
12
(1999). "Accordingly, we conclude that convicting the defendant
of [multiple] violations, rather than one, . . . was error and
gives rise to a substantial risk of a miscarriage of justice."
Constantino, 443 Mass. at 526.
Conclusion. The judgment on one of the indictments for
leaving the scene of an accident causing personal injury is
vacated, the verdict on that indictment is set aside, and that
indictment is dismissed.9 The judgments on two of the
indictments for leaving the scene of an accident causing
property damage are vacated, the verdicts on those indictments
are set aside, and those indictments are dismissed.10 The
remaining judgments are affirmed.
So ordered.
9
The indictments charging personal injury are 13-496-1 and
13-496-2.
10
The indictments charging property damage are 13-496-5,
13-496-6, and 13-496-7.