Commonwealth v. Kelly J. Flanagan, March 15, 2010
76 Mass. App. Ct. 456
Double Jeopardy; Lesser Included Offense; Operation of Motor Vehicle.
The defendant made two double jeopardy claims on appeal. She was convicted (i) of two counts of causing serious bodily injury while operating a motor vehicle negligently and while intoxicated (M.G.L. c. 90, s. 24L(1)) and (ii) of reckless operation of a motor vehicle (M.G.L. c. 90, s. 24(2)(a)).
In her first double jeopardy claim, the defendant argued that her two convictions of causing serious bodily injury violated the double jeopardy clause because both convictions stemmed from the same incident, and thus that she was receiving multiple punishments for the same offense. The appellate court rejected this claim. The court looked to the text of the criminal statute, to legislative intent and to the comparable vehicular homicide statute to determine that the law in question addressed a particular harm/injury and not a particular action/incident. The unit of prosecution therefore was the injury caused to a victim by the defendant’s negligent driving. The defendant here injured two people and accordingly there was no double jeopardy violation
In her second double jeopardy claim, the defendant contended that the reckless operation charge was a lesser-included offense of the causing serious bodily injury while operating a motor vehicle negligently charge, thus resulting in duplicative convictions. The court also rejected this argument. The rule stated by the court is that a defendant may be punished for two crimes arising out of the same conduct/incident as long as each crime requires proof of an element that the other does not. The court determined that (as the Commonwealth proceeded on the charges) the M.G.L. c. 90 s. 24L(1) charge required proof of negligence (but not recklessness) while the M.G.L. c. 90, s. 24(2)(a) charge required proof of recklessness (but not negligence). Accordingly there was no double jeopardy violation.
Sufficiency of the Evidence; Circumstantial Evidence.
The defendant argued insufficient evidence. The court rejected this contention, noting that while the Commonwealth’s case was circumstantial, it was strong and sufficient for the jury’s verdict.
Right Against Self-Incrimination.
The defendant contended that her right to remain silent was violated by the prosecutor’s questioning of the defendant while on the stand, on the matter of defendant’s calls to the police on the days following the accident. The court found that the prosecutor’s questioning was not improper. The defendant voluntarily waived her right to remain silent in contacting the police and the prosecutor did not come too close to commenting on her right to remain silent.
Jury Instruction.
The defendant argued that a portion of the judge’s final instructions to the jury (regarding the definition of operating under the influence of alcohol) was improper. The court rejected this argument for the portion challenged was read verbatim as appeared in the instructions. Further, the defense counsel at trial did not object to nor suggest alternative language
Juror
The defendant lastly argued that a mistrial was required because ten minutes into jury deliberations, the judge was told that one of the jurors recognized the defendant’s signature on some medical records given to the jury. The juror in question had no memory of the defendant, did not comment on the records or signature other than alerting that she recognized the signature and she was then immediately replaced. The records had been admitted by agreement. The trial judge found no prejudice and the appellate court found no abuse of discretion.
