Opinion
20-P-533
02-22-2022
COMMONWEALTH v. Anthony D. MILLER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury trial in the Superior Court, the defendant was convicted of aggravated rape, G. L. c. 265, § 22 (a ), and assault and battery by means of a dangerous weapon (ABDW), G. L. c. 265, § 15A (b ). The defendant argues on appeal that the two convictions are duplicative. We agree, and therefore vacate the defendant's ABDW conviction. We otherwise affirm.
The defendant was also convicted of the remainder of the crimes with which he was charged: kidnapping, G. L. c. 265, § 26 ; assault and battery on a family or household member, G. L. c. 265, § 13M (a ) ; witness intimidation, G. L. c. 268, § 13B (b ) (iii) ; and strangulation or suffocation, G. L. c. 265, § 15D (b).
Background. This case was submitted to the jury on the theory that the defendant "strangled, beat[ ], and raped [the victim] during one continuous episode." The victim was sitting in the kitchen when the defendant first attacked her. The defendant strangled the victim, punched her with his fists, and struck her multiple times with an oxygen tank before dragging her upstairs and raping her. The Commonwealth charged one count of ABDW premised on the defendant's use of the oxygen tank to strike the victim. The Commonwealth, relying on the theory that the defendant's conduct constituted one continuous episode, also charged one count of aggravated rape with the aggravating element predicated on an ABDW. As noted, the jury found the defendant guilty of both counts.
On the second day of trial, during a conversation about the jury instructions, the judge asked the prosecutor to identify "the aggravating circumstance that the Commonwealth is alleging [relative to the aggravated rape]." The prosecutor responded, "That it was committed within the same course of conduct when the assault and battery with a dangerous weapon was committed."
The prosecutor also communicated this theory to the jury during his closing argument, stating that "you're going to hear in the jury instructions from the Judge that for aggravated rape, the assault and battery with the oxygen tank and the rape, they do not have to happen at the same time."
Discussion. For the first time on appeal, the defendant argues that the two convictions are duplicative, and thus in violation of double jeopardy principles, because the jury were not instructed that the convictions must be based on separate acts. We review to determine "whether there is any significant possibility that the jury may have based the convictions of the greater and lesser included offenses on the same act." Commonwealth v. Kelly, 470 Mass. 682, 701 (2015).
"Both the double jeopardy clause of the Fifth Amendment to the United States Constitution and Massachusetts common law prohibit the imposition of multiple punishments for the same offense." Commonwealth v. Dykens, 473 Mass. 635, 638 (2016). Convictions are duplicative "[w]here the elements of one offense are wholly a subset of those of another." Commonwealth v. Howze, 58 Mass. App. Ct. 147, 149 (2003). The crime of ABDW is an element of the crime of aggravated rape when it is the sole aggravating element alleged in the aggravated rape indictment. See Commonwealth v. Donovan, 58 Mass. App. Ct. 631, 632 n.1 (2003). The offense of ABDW becomes, in essence, a lesser included offense of the aggravated rape. Cf. Commonwealth v. Rasmusen, 444 Mass. 657, 666-667 (2005), quoting Commonwealth v. Gunter, 427 Mass. 259, 276 (1998) ("When a murder conviction is based on a felony-murder theory, the underlying felony, whatever it may be, is always a lesser included offense and the conviction for that felony, in addition to the conviction of murder, is duplicative"). Accordingly, "[i]n order to sustain both convictions, the acts used to support one conviction cannot be the same acts used to support the other." Commonwealth v. Berrios, 71 Mass. App. Ct. 750, 753 (2008).
The Commonwealth argues that the jury heard evidence of additional, uncharged conduct sufficient to serve as the predicate ABDW for the aggravated rape conviction. The Commonwealth's argument, that potentially duplicative convictions may stand where the record contains sufficient evidence, beyond the charged predicate, from which a jury could have found the aggravating element, misstates the standard of review. Commonwealth v. Gilbert, 94 Mass. App. Ct. 168, 175 (2018), is not to the contrary. In Gilbert, where the defendant's convictions stemmed from guilty pleas, the question was not whether the jury were properly instructed, but rather whether "the facts admitted to at the plea colloquy supported a conclusion that each aggravated rape conviction was supported by an uncharged aggravating offense." Id. But here, because the defendant was tried and convicted by a jury, "the test ... is not whether there was sufficient evidence to support multiple convictions, but whether there is any significant possibility that the multiple convictions were based on the same act." Commonwealth v. Traylor, 472 Mass. 260, 276-277 (2015).
Normally, whether a defendant committed separate and distinct acts sufficient to support both cognate convictions is a question of fact for the jury. See Commonwealth v. Maldonado, 429 Mass. 502, 509 (1999). "Where, however, the judge does not clearly instruct the jury that they must find that the defendant committed separate and distinct criminal acts to convict on the different charges, the conviction of the lesser included offense must be vacated as duplicative." Kelly, 470 Mass. at 700.
See Massachusetts Superior Court Criminal Practice Jury Instructions § 6.12 (Mass. Cont. Legal Educ. 3d ed. 2018).
The judge first instructed the jury on the elements of ABDW, "because it plays a role in different charges and [he] want[ed the jury to] have that in mind." The judge explained that the dangerous weapon, as charged in the indictment, was the oxygen tank. He cautioned the jury that, to find the defendant guilty on this charge, they "must unanimously agree on the specific touching." Next, the judge instructed the jury on the elements of aggravated rape, "aggravated by the allegation that the rape was committed during the commission of the crime of assault and battery by means of a dangerous weapon." Although the judge did not make specific mention of the oxygen tank in defining the aggravating element of aggravated rape, he asked the jury to "keep in ... mind [his] definition of assault and battery by means of a dangerous weapon that [he] previously provided to [the jury] in considering this element." Contrast Commonwealth v. Gouse, 461 Mass. 787, 799 (2012) (judge clearly instructed jury as to separate conduct alleged to constitute cognate indictments). In sum, the jury were told explicitly to reference the instructions on the elements of ABDW -- including the requirement of specific unanimity -- when considering whether the Commonwealth had proved beyond a reasonable doubt the aggravating element necessary to convict the defendant of aggravated rape. Under these circumstances, we conclude that the absence of a separate acts instruction created a significant possibility that the jury rested both convictions on the same facts, namely a single and distinct strike with the oxygen tank. See Kelly, 470 Mass. at 701-702 ; Commonwealth v. Petrillo, 50 Mass. App. Ct. 104, 110-111 (2000), cert. denied, 532 U.S. 1030 (2001). "Because the Commonwealth is entitled to a verdict on the highest crime charged," the ABDW conviction must be vacated as duplicative. Commonwealth v. Vao Sok, 435 Mass. 743, 759 (2002).
Conclusion. On the indictment charging assault and battery by means of a dangerous weapon, the judgment is vacated, the verdict is set aside, and that indictment is to be dismissed. On the remaining indictments charging aggravated rape, kidnapping, assault and battery on a family or household member, witness intimidation, and strangulation or suffocation, the judgments are affirmed.
Although "[d]ouble jeopardy is only violated if ... multiple punishments are imposed for the same offense," Luk v. Commonwealth, 421 Mass. 415, 430 (1995), Massachusetts common law requires that the duplicative conviction, as well as the sentence, be vacated. See Commonwealth v. Mello, 420 Mass. 375, 398 (1995) ("The appropriate remedy for the imposition of duplicative convictions is to vacate both the conviction and sentence on the lesser included offense"); Commonwealth v. Jones, 382 Mass. 387, 396-397 (1981) (recognizing collateral consequences of fact of conviction). See also Commonwealth v. Gomes, 470 Mass. 352, 353 n.2 (2015), S.C., 478 Mass. 1025 (2018) (vacating ABDW conviction as duplicative of mayhem conviction).
"Because the defendant's sentence [on the ABDW conviction] did not increase the amount of time that he would spend incarcerated, ... we need not remand this matter for resentencing." Commonwealth v. Johnson, 461 Mass. 44, 54 n.12 (2011).
So ordered.
vacated in part; affirmed in part