Lead Opinion
The defendant, Michael L. Crawford, was convicted of the involuntary manslaughter of his girl friend and her unborn fetus. His convictions were affirmed on direct appeal. Commonwealth v. Crawford,
The background facts are set forth in Commonwealth v. Crawford, supra at 359-361, which we briefly summarize. On July 7, 1990, the defendant shot Kimberly Noblin in the face. Noblin’s body was found more than four hours later, after rigor mortis had set in. At the time of the shooting, Noblin was at least seven months pregnant
1. First motion under rule 30. The defendant’s first motion for postconviction relief under rule 30 was filed after his direct appeal. The motion judge, who was not the trial judge, considered the merits of the motion and denied it, finding that the defendant’s separate sentences for killing both Noblin and her viable fetus did not violate double jeopardy principles. Where a judge fully considers the merits of an original motion for postconviction relief filed after a defendant’s direct appeal, containing arguments that could have been but were not argued on direct appeal, and denies the motion, the proper test for appellate review of the denial of the motion is whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Hallet,
The defendant argues that, because the fetus and the mother were killed as a result of the same criminal act, his multiple convictions and sentences constitute double punishment in violation of double jeopardy principles. He further contends that double jeopardy principles preclude multiple punishments in circumstances where the court, rather than the Legislature, has defined the crime.
In Levia, we upheld the imposition of consecutive sentences for the armed robbery of two individuals, in the course of a single incident as nonviolative of double jeopardy because the statutory emphasis on the assault element of robbery was seen as a manifestation of legislative intent authorizing separate punishment as to each person robbed. We held that robbery constituted an offense against each person, and was not just one offense against the owner of the property taken. Id. at 350-351. Citing our holding in Levia, we later observed that, “[wjhenever a single criminal transaction gives rise to crimes of violence which are committed against several victims, then multiple indictments (and punishments) are appropriate.” Commonwealth v. Donovan,
In Commonwealth v. Cass,
There is no merit to the defendant’s contention that he may not be punished for two homicides when he fired only one shot. The “probable harmful consequences,” Commonwealth v. Vanderpool,
The defendant next contends that consonant with principles of double jeopardy the Legislature alone may authorize multiple punishments for criminal acts, and that our decision in Commonwealth v. Cass, supra, which paved the way for his prosecution for unlawfully killing the fetus, violated those principles. The defendant relies on a passage from Brown v. Ohio,
*688 “The Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes qnd fix punishments; but once the legislature has acted courts may not impose more than one punishment for the same offense . . . .”
The passage from Brown does not support his proposition. There the Supreme Court went on to explain that the double jeopardy clause provides a check on courts to assure that they do not exceed their authority to punish. Id. The Court did not say, nor did it imply, that for double jeopardy purposes courts from common-law jurisdictions could not define crimes. It merely admonished that punishment must fall within authorized limits. The statute proscribing manslaughter, G. L. c. 265, § 13, is a codification of the common law, Commonwealth v. Webster,
We see no basis in these circumstances for providing any greater protection under our common-law principles of double jeopardy than that afforded by the Fifth Amendment. See Lydon v. Commonwealth,
2. Second motion under rule 30. Having said that the motion to amend the first motion was properly denied, see note 2, supra, the “amended” motion was properly treated as a second motion for a new trial. The second motion was denied by another judge on grounds that the issues raised were waived. “All grounds for relief claimed by a defendant under . . . this rule shall be raised by the defendant in his original or amended motion. Any grounds not so raised are waived unless the judge in his discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been
a. Vagueness. The defendant claims that the term “viability,” as applied to a fetus under criminal homicide statutes, is unconstitutionally vague because it has not been defined by the Legislature or by the courts. A statute is unconstitutionally vague if “men of common intelligence must necessarily guess at its meaning.” Commonwealth v. Sefranka,
In the civil context, we defined a “viable fetus” to be a fetus “so far formed and developed that if then bom it would be capable of living.” Torigian v. Watertown News Co.,
b. Lowered burden. The defendant claims that the Commonwealth’s burden of proof was lowered when the trial judge defined viability as “having reached such a stage of development as to be potentially able of living outside the mother’s womb, notwithstanding artificial aid” (emphasis added). Relying on a California case, the defendant argues that the proper definition of viability is that the fetus must attain such form and development of organs as to be “ ‘normally capable of living outside of the uterus’ ... a better than even chance — a probability” (emphasis added). People v. Davis,
The word “potential,” as defined in Black’s Law Dictionary 1168 (6th ed. 1990), means “[ejxisting in possibility but not in [f]act. Naturally and probably expected to come into existence at some future time, though not now existing” (emphasis added). Thus, the term “potentially” connotes a degree of probability greater than a “possibility,” the term which the court in People v. Davis, supra, found lacking because it impermissibly lowered the threshold for viability to the point where a fetus incapable of surviving outside the womb would nonetheless be considered viable. Given that the trial judge’s use of the term “potentially” had the effect of instructing the jury that they had to find that Noblin’s fetus had a “better than even chance” for survival before they could convict the defendant, the instruction given here did not lower the Commonwealth’s burden. See id.
The Supreme Court had addressed the meaning of “viability” on two occasions before the defendant’s trial. In Colautti v. Franklin,
Although we have concluded that the judge’s instruction, taken from Roe v. Wade, supra, was adequate, the definition of “viability” used in Colautti v. Franklin, supra (“reasonable
c. Intent and knowledge. The defendant’s contention that the Commonwealth should be required to show that he knew of the fetus’s existence and viability is without merit. The defendant was convicted of involuntary manslaughter, a crime which does not require proof of awareness of a particular victim. See Commonwealth v. Welansky,
The Commonwealth reasonably could not be required to prove that the defendant knew the fetus was viable because viability is an issue that involves a medical judgment. See Co-lautti v. Franklin, supra at 388-389; Planned Parenthood of Cent. Mo. v. Danforth,
Even if these issues had not been waived, the result would not be different. At trial, the defendant presented evidence of alibi, a strategy which was not unreasonable in the circumstances. The ability to instill reasonable doubt that he had killed Noblin would necessarily benefit his defense of the indictment alleging that he killed her fetus. Interjecting issues about the defendant’s knowledge of the existence of the fetus or its viability would have diluted his alibi defense. They also are issues that appear to have had little chance of success. The defendant lived with Noblin and their four year old daughter approximately three days a week at Noblin’s apartment. There was evidence that the defendant knew that Noblin was pregnant,
The denials of the defendant’s motions under Mass. R. Crim. R 30 are affirmed.
So ordered.
Notes
The defendant’s notice of appeal was filed on April 24, 1997, and we dismissed the appeal on the Commonwealth’s motion. We subsequently reinstated the appeal from the denial of the first motion on the defendant’s showing that notice of denial of the first motion had not been sent until March 31, 1997. We reject the Commonwealth’s argument that the appeal from the denial of the first motion was not timely.
The defendant’s claim that the motion judge abused her discretion by denying his motion to amend the first motion to include new issues is without merit. The first motion had been argued, considered, and denied. Not only did the defendant file his motion to amend more than ten months after his original motion was denied, a period of time which the motion judge could have concluded was unreasonable, but he sought to include three new issues unrelated to the one issue previously presented. Cf. Commonwealth v. Cronk,
“At the time of the shooting, the male fetus weighed about two and one half pounds, was fifteen inches in length, and was between twenty-eight and thirty weeks in gestational age.” Commonwealth v. Crawford,
See Commonwealth v. Edelin,
The medical examiner’s testimony that the fetus was between twenty-eight and thirty weeks in gestational age comports with the observations in Roe v. Wade,
Concurrence Opinion
(concurring, with whom Marshall, C.J., joins). In Commonwealth v. Cass,
Subsequently, in Commonwealth v. Lawrence,
Given that Cass and Lawrence remain the law of this Commonwealth, I concur in the court’s decision in the instant case. If one takes as a premise that a viable fetus in útero can be the victim of a homicide, then the court’s legal conclusions follow. However, I continue to adhere to the views expressed in the dissent in Cass and in my concurrence in Lawrence.
If a “person of ordinary intelligence” cannot determine that “his contemplated conduct is forbidden” by a law, then that law runs afoul of the due process required by our Constitution. See Colautti v. Franklin, supra. This case, like Cass and Lawrence, does not directly raise the issue of the scienter required for a conviction of homicide of a viable fetus in útero because the defendant was convicted of involuntary manslaughter. “The Commonwealth need only prove wanton and reckless conduct resulting in the death of a person. Wantonness and recklessness are determined by the conduct involved . . . .” Ante at 691.
However, the court also writes that “[t]he Commonwealth reasonably could not be required to prove that the defendant knew the fetus was viable because viability is an issue that involves a medical judgment.” Ante at 691. In support of this dictum, the court quotes my concurrence in Lawrence, supra at 399 (Abrams, J., concurring), that “[t]he mental element needed for conviction of murder cannot depend on a medical determination that can only be made by experts after the fact.” Ante at 691.
It was the concern that a person of ordinary intelligence might not be able to determine that he or she was committing two homicides that prompted me to write the words quoted by the court. See Lawrence, supra. Where proof offered at a criminal trial focuses on the victim’s medical status and not the defendant’s acts and state of mind, I think the court strays from the purposes of the criminal laws. “The focus of a criminal trial must be on the defendant’s mental state, not the victim’s physical condition.” Id.
As I observed in Lawrence, supra, “[sjuch issues . . . are not before us in this case. They await a case-by-case determination.” However, the fact that such issues continue to lurk in the law of homicide as this court has extended that law suggests to me that the creation of crimes is best left to the Legislature, as it always had been until Cass, supra.