Commonwealth v. Hebb , 477 Mass. 409 ( 2017 )

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SJC-12158
COMMONWEALTH vs. WILLIAM J. HEBB.
Suffolk. February 7, 2017. - June 30, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.
Motor Vehicle, Operating under the influence. Constitutional
Law, Double jeopardy. Practice, Criminal, Double jeopardy,
Verdict.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on July 19, 2016.
The case was reported by Spina, J.
Christopher DeMayo for the defendant.
Donna-Marie Haran, Assistant District Attorney, for the
Commonwealth.
Timothy St. Lawrence, pro se, amicus curiae, submitted a
brief.
HINES, J. In this case, we decide whether double jeopardy
principles preclude the Commonwealth from retrying the defendant
on a complaint charging a violation of G. L. c. 90,
§ 24 (1) (a) (1), on the theory of operation of a motor vehicle
with a percentage of alcohol in his blood of .08 or greater (per
2
se violation), after a jury acquitted him on the theory of
operation of a motor vehicle while under the influence of
intoxicating liquor (impaired ability violation). The
Commonwealth prosecuted the one-count complaint on both
theories, and after the jury returned a verdict on the impaired
ability violation only, the judge declared a mistrial on the per
se violation. A new complaint issued charging only a per se
violation of G. L. c. 90, § 24 (1) (a) (1). Claiming that
retrial violated his double jeopardy rights where the complaint
issued after an acquittal on the impaired ability violation, the
defendant filed a motion to dismiss the complaint. The judge
denied the motion.
The defendant sought relief in the county court pursuant to
G. L. c. 211, § 3. The case is before us on a reservation and
report from a single justice of this court. We conclude that
double jeopardy principles do not preclude retrial where the
Commonwealth prosecuted the case on both theories and the jury
reached a verdict on only one of those theories.
Background. We set forth the facts the jury could have
found. On May 16, 2013, the defendant was struck by a vehicle
while he was operating his motorcycle on a public way.1 At the
scene of the collision, the defendant admitted to having had
1
The parties stipulated that the defendant was operating
his motorcycle on a public way.
3
several alcoholic beverages and was uncooperative with the
paramedics. After the defendant complained of pain, he was
transported to the Milford Hospital emergency department.
The treating physician observed that the defendant's skin
appeared "flushed" and that his speech was slurred, and detected
"an odor of alcohol on [his] breath." Based on these
observations, the physician determined that the defendant was
"intoxicated[,] probably with alcohol." With the defendant's
consent, medical personnel drew blood samples for alcohol levels
to be determined. Subsequent testing of the blood samples by a
blood analyst in the State police crime laboratory showed a
blood alcohol level of .133. On cross-examination, the blood
analyst acknowledged that the tubes holding the defendant's
blood samples also contained an anticoagulant to prevent blood
clotting and that if the anticoagulant is not properly
activated, the blood sample could clot, and yield an
artificially high blood alcohol test result.
During closing arguments, defense counsel urged a finding
that the defendant had not been impaired while operating his
motorcycle, and that the blood alcohol test results were
unreliable because the Commonwealth failed to present evidence
that the anticoagulant was properly activated prior to testing.
The prosecutor argued that (1) the defendant's behavior and
appearance at the scene of the collision and at the hospital
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proved the impaired ability violation; and (2) the defendant's
blood alcohol level of .133 proved the per se violation.
The verdict slip conformed to the complaint, charging both
the impaired ability violation and the per se violation, and
provided the jury the following options: (I) "Operating a Motor
Vehicle Under the Influence of Liquor: 1. Not Guilty; 2.
Guilty"; and (II) "Operating a Motor Vehicle with a Blood
Alcohol Level of .08% or greater: 1. Not Guilty; 2. Guilty."
During the deliberations, the jury reported in writing the
following: "Made decision on first count; however, saw evidence
that was supposed to be redacted, swaying our decision [on the
second count]. What is our next step?" In response, the judge
summoned the jury to the court room and conducted a voir dire.
During the colloquy, the judge learned that although the
information indicating that the defendant was being prosecuted
for a fourth offense had been redacted from the exhibits, the
jury were able to discern the word "fourth" next to OUI. This
information swayed the jury's decision as to option II, the per
se violation, but not as to option I, on which the jury returned
a not guilty verdict. The jury left the verdict slip blank for
option II, marking neither "not guilty" nor "guilty."
Accordingly, the judge accepted the verdict on option I and
declared a mistrial on option II.
In December, 2015, a second criminal complaint issued
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against the defendant, charging one count of operating with a
blood alcohol level percentage of .08 or greater, fourth
violation, under G. L. c. 90, § 24 (1) (a) (1). The defendant
filed a motion to dismiss, arguing that retrial violated his
double jeopardy rights. A second judge denied the motion, and
the defendant filed a petition pursuant to G. L. c. 211, § 3,
seeking review of that judge's order. A single justice of this
court reserved and reported the case to the full court on August
12, 2016.
Discussion. Generally, "[t]he denial of a motion to
dismiss in a criminal case is not appealable until after trial,
and we have indicated many times that G. L. c. 211, § 3, may not
be used to circumvent that rule." Jackson v. Commonwealth, 437
Mass. 1008, 1009 (2002). However, we have recognized a limited
exception "where a defendant's motion to dismiss raises a double
jeopardy claim of substantial merit." Azubuko v. Commonwealth,
464 Mass. 1002, 1003 (2012). Because the double jeopardy issue
raises a question of law, our review of the judge's decision is
de novo. See Commonwealth v. Rodriguez, 476 Mass. 367, 369
(2017); Commonwealth v. Carlino, 449 Mass. 71, 72 n.7 (2007).
In its broadest sweep, "[t]he double jeopardy principle
'protects against three specific evils -- "a second prosecution
for the same offense after acquittal; a second prosecution for
the same offense after conviction; and multiple punishments for
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the same offense"'" (citation omitted). Commonwealth v. Brown,
470 Mass. 595, 603 (2015). The "evil" to be prevented by the
double jeopardy principle in the circumstances presented by this
case is a second prosecution after an acquittal. Thus, the
issue to be decided here is whether an acquittal of only one of
the charged violations is, in effect, an acquittal of both
violations. We conclude that it is not.
First, the statute as written provides that a defendant may
be convicted on one or both violations. In 2003, the
Legislature amended G. L. c. 90, § 24 (OUI statute), "to
strengthen the protections afforded the public from drivers who
might be impaired by the consumption of alcohol." Commonwealth
v. Colturi, 448 Mass. 809, 813 (2007). With this amendment,
"the Legislature added language to the OUI statute, making it a
violation to operate a motor vehicle not only under the
influence of intoxicating liquor [(impaired ability violation)],
but also with a blood alcohol level of .08 or more [(per se
violation)]." Id. at 811. Thus, the statutory framework
created by the 2003 amendment established alternative theories
under which a violation of the OUI statute could be charged and
proved, each containing a factual element not necessary to prove
the other. See Commonwealth v. Filoma, 79 Mass. App. Ct. 16, 20
(2011). In other words, to prove a per se violation of the OUI
statute, the Commonwealth need not establish that the defendant
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was under the influence of intoxicating liquor. See G. L.
c. 90, § 24 (1) (a) (1). See also Filoma, supra. Likewise, to
prove an impaired ability violation of the statute, the
Commonwealth need not show that the defendant's blood alcohol
level was .08 per cent or more. See id. at 20-21.
Here, the complaint charged the defendant with an impaired
ability violation and, in the alternative, a per se violation.
Thus, the charging decision was consistent with the legislative
purpose to minimize the risk to public safety from drivers who
are either actually impaired or presumed to be impaired based on
their blood alcohol level. Consistent with its charging
decision, the Commonwealth affirmatively pursued both
alternatives at trial, and the verdict slip permitted the jury
to choose either or both alternatives.
Second, "the protection of the [d]ouble [j]eopardy [c]lause
by its terms applies only if there had been some event, such as
an acquittal, which terminates the original jeopardy."
Commonwealth v. Johnson, 426 Mass. 617, 625 (1998), quoting
Richardson v. United States, 468 U.S. 317, 325 (1984). And, as
we have said, "where a verdict does not specifically resolve all
the elements of the offense charged, it is defective and cannot
operate as either an acquittal or a conviction," Brown, 470
Mass. at 603-604, and thus does not trigger double jeopardy
protections. Therefore, double jeopardy protections were not
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triggered here, because the jury's not guilty verdict on the
impaired ability charge did not resolve the factual element
necessary to establish a per se violation -- that the defendant
operated a motor vehicle with a blood alcohol level of .08 per
cent or greater. The jury's resolution of that factual element,
a live issue in the prosecution, was foreclosed by the mistrial
declaration. In sum, the double jeopardy bar does not prohibit
the Commonwealth from seeking to retry a defendant "where other
theories (supported by evidence at a first trial) would support
a defendant's conviction in the second." Marshall v.
Commonwealth, 463 Mass. 529, 538 (2012).
Our conclusion that double jeopardy principles do not bar
retrial on the per se violation where the defendant was
acquitted on the impaired ability violation is consistent with
this court's application of double jeopardy principles in cases
involving trials for murder under multiple theories. For
example, in Commonwealth v. Zanetti, 454 Mass. 449, 459-461
(2009), we held that the Commonwealth could retry a defendant
for murder on a theory on which the jury had not reached a
verdict at the first trial. Likewise, in Brown, 470 Mass. at
605-606, we held that where the jury in the first trial failed
to reach a verdict on the "facts and merits" of the charge of
murder in the first degree on the theory of deliberate
premeditation, double jeopardy principles did not prohibit the
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Commonwealth from retrying the defendant on that theory at a
second trial. "The 'interest in giving the prosecution one
complete opportunity to convict those who have violated its
laws' justifies treating the jury's inability to reach a verdict
as a nonevent that does not bar retrial." Yeager v. United
States, 557 U.S. 110, 118 (2009), quoting Arizona v. Washington,
434 U.S. 497, 509 (1978).
The defendant contends that the United States Supreme
Court's decision in Sanabria v. United States, 437 U.S. 54
(1978), forecloses retrial on the per se violation because the
jury acquitted him on the impaired ability violation. We
disagree. In Sanabria, the trial judge entered an acquittal on
the entire count charging violations of 18 U.S.C. § 1955,
"without specifying that [the judge] did so only with respect to
one theory of liability." Id. at 67. Because Sanabria is
distinguishable from this case, it does not advance the
defendant's argument.
Conclusion. For the reasons explained above, we remand the
matter to the county court for entry of an order denying the
defendant's G. L. c. 211, § 3, petition.
So ordered.