COMMONWEALTH vs. WILLIAM J. HEBB
Supreme Judicial Court of Massachusetts
June 30, 2017
477 Mass. 409 (2017)
Suffolk. February 7, 2017. Present: GANTS, C.J., LENK, HINES, GAZIANO, LOWY, & BUDD, JJ.
Principles of double jeopardy did not preclude the Commonwealth from retrying the defendant on a criminal complaint charging a violation of
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
The defendant sought relief in the county court pursuant to
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 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 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
In December, 2015, a second criminal complaint issued against the defendant, charging one count of operating with a blood alcohol level percentage of .08 or greater, fourth violation, under
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
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 the same
First, the statute as written provides that a defendant may be convicted on one or both violations. In 2003, the Legislature amended
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,
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 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
Conclusion. For the reasons explained above, we remand the matter to the county court for entry of an order denying the defendant‘s
So ordered.