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14-P-1459 Appeals Court

COMMONWEALTH vs. KEITH HENDERSON (NO. 1).

No. 14-P-1459.

Hampden. October 5, 2015. - March 15, 2016.

Present: Vuono, Carhart, & Sullivan, JJ.

Motor Vehicle, Operation, Leaving scene of accident. Evidence, 

Intent. Intent. Practice, Criminal, Instructions to jury, 

Duplicative convictions, Double jeopardy. Constitutional 

Law, Double jeopardy.

Indictments found and returned in the Superior Court 

Department on April 9, 2013. 

The case was tried before Edward J. McDonough, J. 

Leslie H. Powers for the defendant.

Alyson C. Yorlano, Assistant District Attorney, for the 

Commonwealth.

SULLIVAN, J. Following a trial on multiple indictments, a

jury convicted the defendant, Keith Henderson, on two

indictments charging leaving the scene of an accident causing 

personal injury in violation of G. L. c. 90, § 24(2)(a1/2)(1), 

and on three indictments charging leaving the scene of an 
2

accident causing property damage in violation of G. L. c. 90, 

§ 24(2)(a).

1 On appeal, the defendant maintains that (1) the 

judge erred in failing to instruct that the Commonwealth must 

prove that he had the specific intent to leave the scene of the 

accident, and (2) he was convicted of multiple counts of leaving 

the scene of an accident in violation of his right to be free 

from double jeopardy.

2 We conclude that the jury were properly 

instructed, but that, on the facts presented, the convictions 

were duplicative. We therefore vacate the judgment on one of 

the counts of leaving the scene of an accident causing personal 

injury and the judgments on all but one of the counts of leaving 

the scene of an accident causing property damage. We affirm the 

remaining judgments.

Background. The evidence pertinent to the appeal may be 

summarized as follows. Sean Kydd's car was taken from him at 

gunpoint on March 5, 2013, by a man he was unable to identify. 

Kydd filed a police report that day, reporting the car stolen. 

 

1 The defendant was also convicted of one count of assault 

and battery by means of a dangerous weapon, to wit, a motor 

vehicle, in violation of G. L. c. 265, § 15A(b), and one count 

of receiving a stolen motor vehicle in violation of G. L. 

c. 266, § 28(a).

2 The defendant also presented other arguments, which we 

address in a memorandum and order pursuant to our rule 1:28, 

issued this same day. Commonwealth v. Henderson (No. 2), 

Mass. App. Ct. (2016). To the extent relevant to the 

convictions of leaving the scene, the memorandum and order is 

incorporated by reference.
3

Nine days later on March 14, 2013, Kydd spotted his car in 

Springfield and called the police. Two police officers in 

marked police cruisers met Kydd, and all three drove separately 

to where the car was located.

As the caravan passed Kydd's stolen car, one police officer 

made eye contact with the driver, who was later identified as 

the defendant. "[T]he [car] took off" in the opposite 

direction. The officers followed in pursuit. The defendant 

"continued accelerating" and "pull[ed] away at a good distance." 

The defendant approached a red light at the corner of Wilbraham 

Road and Alden Street and, instead of stopping, kept going. The 

car driven by the defendant "sideswipe[d]" a vehicle that was 

stopped at the red light, crossed the intersection, and crashed 

a "split second" later into two other vehicles in the oncoming 

lane of traffic. The officers estimated the defendant's speed 

at the time of the accident as fifty-five to sixty and sixtyfive to seventy miles per hour in a thirty-five miles per hour 

zone. Three cars were damaged, and two occupants of different 

vehicles were injured.

The defendant got out of the car, stumbled, and tried to 

run across the street toward a gas station on the corner. The 

defendant ran for approximately twenty feet before he was 

apprehended by police.
4

1. Jury instructions. At trial, the defendant argued that 

he had not fled the scene; rather, he merely stumbled as he got 

out of the car. Citing Commonwealth v. Liebenow, 470 Mass. 151, 

157 (2014), the defendant, for the first time on appeal, now 

attempts to recast his defense, stating that the judge should 

have instructed the jury that the defendant must have the 

subjective intent to flee the scene.3 The defendant's claim of 

error rests on his contention that specific intent to leave the 

scene is an element of the offense. The argument conflates 

knowledge and intent, which are not wholly coterminous. See 

Commonwealth v. Sama, 411 Mass. 293, 298 (1991). Knowledge is 

the operative element under the statute.

"To prove the charge of leaving the scene of [property 

damage], the Commonwealth must prove beyond a reasonable doubt 

that (1) the defendant operated a motor vehicle (2) on a public 

way (3) and collided with or caused injury in some other way to 

another vehicle or to property; (4) the defendant knew that he 

had collided with or caused injury in some other way to that 

other vehicle or property; and (5) after such collision or 

injury, the defendant did not stop and make known his name, 

address, and the registration number of his motor vehicle. 

 

3 Intent was not a live issue at trial. See Commonwealth v. 

Gabbidon, 398 Mass. 1, 5 (1986). Counsel argued that the 

defendant had not left and that, even if he intended to leave, 

the police stopped him.
5

G. L. c. 90, § 24(2)(a)."4 Commonwealth v. Platt, 440 Mass. 396, 

400 n.5 (2003). The elements of leaving the scene of an 

accident causing personal injury are similar, except that the 

Commonwealth must prove injury to the person rather than damage 

to property. See G. L. c. 90, § 24(2)(a1/2)(1).5 See also

Commonwealth v. Muir, 84 Mass. App. Ct. 635, 638-639 (2013). 

The knowledge required under each statute is virtually identical

-- the defendant's knowledge of the collision or the defendant's 

knowledge of the injury or damage. The judge so instructed the 

jury.

 

4 The statute provides: "Whoever upon any way or in any 

place to which the public has a right of access, or any place to 

which members of the public have access as invitees or 

licensees, . . . without stopping and making known his name, 

residence and the register number of his motor vehicle goes away 

after knowingly colliding with or otherwise causing injury to 

any other vehicle or property, . . . shall be punished by a fine 

of not less than twenty dollars nor more than two hundred 

dollars or by imprisonment for not less than two weeks nor more 

than two years, or both . . . ." G. L. c. 90, § 24(2)(a), 

inserted by St. 1975, c. 156, § 1.

5 The statute provides: "Whoever operates a motor vehicle 

upon any way or in any place to which the public has right of 

access, or upon any way or in any place to which members of the 

public shall have access as invitees or licensees, and without 

stopping and making known his name, residence and the 

registration number of his motor vehicle, goes away after 

knowingly colliding with or otherwise causing injury to any 

person not resulting in the death of any person, shall be 

punished by imprisonment for not less than six months nor more 

than two years and by a fine of not less than five hundred 

dollars nor more than one thousand dollars." G. L. c. 90, 

§ 24(2)(a1/2)(1), inserted by St. 1991, c. 460, § 2.
6

The defendant construes one sentence in Platt to require 

proof that the defendant "knowingly le[ft] the scene of an 

accident involving property damage [or personal injury]." 

Platt, supra at 401. From that sentence, the defendant derives 

a requirement of subjective or specific intent to leave the 

scene. The statute contains no requirement that the defendant 

form the specific intent to leave the scene of an accident, and 

the oft-used, though imprecise, shorthand description of the 

offense contained in Platt does not add one.

Although there was at one time a statutory requirement that 

a driver knowingly leave the scene, the statute has been amended 

to remove the element of knowledge with respect to leaving the 

scene of the accident. In 1909, the statute read, in pertinent 

part: "who[ever] knowingly goes away without stopping and 

making himself known after causing injury to any person or 

property . . . shall be punished . . ." (emphasis supplied). 

St. 1909, c. 534, § 22. The 1909 statute was interpreted to 

require "a consciousness not only of the fact that [the

defendant] is going away, but of the further fact that he has 

not made himself known." Commonwealth v. Horsfall, 213 Mass. 

232, 237 (1913). The statute was amended in 1916 to require 

knowledge of the collision or injury, but to remove the word 

"knowingly" from the provision regarding leaving the scene of an 

accident. See St. 1916, c. 290.
7

This amendment was purposeful. In Horsfall, the court 

said, "It would have been simple for the Legislature to have 

made the act of going away by the driver of an automobile 

without making himself known after injuring person or property a 

crime, and this would have been accomplished by omitting the 

word 'knowingly' from the statute." Horsfall, supra at 236-237. 

Clearly, the Legislature accepted this invitation in 1916.

Since 1924, this amendment has been consistently construed 

to mean that "the act [of leaving the scene], irrespective of 

intent, was made criminal." Commonwealth v. Coleman, 252 Mass. 

241, 244 (1925). See Commonwealth v. Nurmi, 250 Mass. 128, 131 

(1924) ("If [the defendant] had knowledge of such collision, it 

was his duty under the statute not only to stop, but also to 

make known his name, residence, and number of his motor 

vehicle"). See also Commonwealth v. McMenimon, 295 Mass. 467, 

468-470 (1936) (describing the change by the Legislature after 

the Horsfall case). The judge's instructions were correct.

2. Duplicative convictions. The defendant maintains that 

he could be properly convicted of and sentenced on only one 

count of leaving the scene of personal injury and one count of 

leaving the scene of property damage.6 He contends that his 

 

6 The defendant appropriately acknowledges that he may be 

convicted, consistent with double jeopardy purposes, of one 

count each of the wholly separate offenses of leaving the scene 
8

multiple convictions are duplicative and violate his right under 

the Federal constitution to be free from double jeopardy. See 

Commonwealth v. Constantino, 443 Mass. 521, 523-526 (2005).

"The double jeopardy clause of the Fifth Amendment to the 

United States Constitution protects against three distinct 

abuses: [1] a second prosecution for the same offense after 

acquittal; [2] a second prosecution for the same offense after 

conviction; and [3] multiple punishments for the same offense." 

Id. at 523 (quotation omitted). Here, as in Constantino, "[w]e 

are concerned with the third category of protection." Ibid. 

Because this issue was not raised at trial, we review for a 

substantial risk of a miscarriage of justice, mindful of the 

fact that a duplicative conviction may constitute such a risk. 

Id. at 526.

The statute is silent on this subject; hence we must 

determine "whether the Legislature, in enacting the statute, 

intended to punish the leaving of the scene of an accident 

resulting in [personal injury or property damage] separately for 

each victim [or item of property] or intended that a single 

penalty attach to the unlawful course of conduct." Id. at 523. 

In Constantino the Supreme Judicial Court held that a defendant 

who had left the scene of an accident causing multiple deaths 

 

of an accident causing property damage and leaving the scene of 

an accident causing personal injury.
9

could be convicted of only a single count of leaving the scene. 

We deal here with the same statute and amendment that the 

Supreme Judicial Court was called upon to interpret in 

Constantino. See G. L. c. 90, § 24(2); St. 1991, c. 460. In 

Constantino the court interpreted the statute with respect to 

the crime of leaving the scene of an accident causing personal 

injury resulting in death, whereas here we confront personal 

injury and property damage. See G. L. c. 90, § 24(2)(a1/2)(1); 

G. L. c. 90, § 24(2)(a). The operative words of the statute, as 

amended in 1991, are virtually identical with respect to leaving 

the scene, whether it be the scene of an accident causing death, 

personal injury, or property damage, and the rationale of 

Constantino is fully applicable.

"[T]he proper 'unit of prosecution' under the statute is 

the act of leaving the scene of the accident, not the number of 

accident victims [or items of property damaged]." Constantino, 

supra at 524. This is because the statute is "directed at 

punishing the defendant for conduct offensive to society, as 

distinct from punishing the defendant for the effect of that 

conduct on particular victims." Commonwealth v. Traylor, 472 

Mass. 260, 268-269 (2015) (quotation omitted). See Constantino, 

supra. The Commonwealth maintains that multiple convictions are 

appropriate because, unlike the single car accident in 

Constantino, here there were three collisions involving damage 
10

to three cars and injury to two passengers. Only one penalty 

may be assessed under each statute for a single act of leaving 

the scene, however, because "the proscribed act is scene 

related, not victim related." Ibid., and cases cited.

7

Our analysis does not end here, however. Multiple

convictions for the same offense may stand where the convictions

are predicated on separate and distinct acts, here the act of

leaving the scene. See Commonwealth v. Vick, 454 Mass. 418,

435-436 (2009). The Commonwealth argues that the defendant left

the scene of an accident twice, once when he sideswiped the

first car, and a second time when he ran away after colliding

with the other two cars. If so, at least two of the convictions

of leaving the scene of property damage would be upheld, as

would both of the convictions of leaving the scene of an

accident causing personal injury.

The evidence at trial was insufficient to permit a finding 

of separate and distinct instances of leaving the scene of an 

 

7 Other jurisdictions have reached the same conclusion. See

People v. Newton, 155 Cal. App. 4th 1000, 1002-1005 (2007) 

(chain reaction multi-car accident causing injury to multiple 

individuals; one scene); Yeye v. State, 37 So. 3d 324, 326 (Fla. 

Dist. Ct. App. 2010) (chain reaction multi-car accident; one 

scene); State v. Ustimenko, 137 Wash. App. 109, 116-119 (2007)

(chain reaction car accident causing injury to two individuals 

and damage to a signpost; one scene); State v. Stone, 229 W. Va. 

271, 276-281 (2012) (chain reaction multi-car accident causing 

multiple deaths and injuries; one scene).
11

accident.

8 There was a near instantaneous collision with three

cars, and flight from that single scene. In light of the

testimony of the witnesses that the two collisions occurred

within a split second, leaving the defendant with no opportunity

to stop after the first collision, the two incidents are "so

closely related in fact as to constitute in substance but a

single crime." Commonwealth v. Vick, supra at 435 (quotation

omitted). The defendant's "actions occurred 'in a single stream

of conduct' that was 'governed by a single criminal design.'" 

Commonwealth v. Suero, 465 Mass. 215, 220 (2013), quoting from

Commonwealth v. Howze, 58 Mass. App. Ct. 147, 153 (2003).

Contrast Commonwealth v. Maldonado, 429 Mass. 502, 509-510

 

8 As a general rule, it is first for the judge to decide

whether the evidence is sufficient to permit the jury to find

separate and distinct acts. See Commonwealth v. Figueroa, 471

Mass. 1020, 1021-1022 (2015). Thereafter, whether there were

separate and distinct acts of leaving the scene, or a single

collision resulting in a single instance of leaving the scene,

would be a question for the jury. See ibid. See also

Commonwealth v. Maldonado, 429 Mass. 502, 509 (1999). Even if

we were to conclude that the evidence was sufficient to permit a

jury to find that there were separate and distinct instances of

leaving the scene, the Commonwealth did not argue at trial that

the defendant left the scene on two occasions. The jury were

not instructed that they had to find that the defendant left the

scene on two occasions. The jury may have convicted the

defendant of multiple counts of leaving the scene even though

they found that he had left the scene just once. "In such a 

situation, even if the defendant does not object to the 

duplicative convictions below," the duplicative convictions must 

be vacated. Commonwealth v. Sanchez, 405 Mass. 369, 382 (1989). 

Compare Commonwealth v. Mamay, 407 Mass. 412, 418-419 (1990) 

(Commonwealth's closing argument obviated the risk); 

Commonwealth v. Figueroa, supra (judge's instruction adequately 

informed the jury of its task).
12

(1999). "Accordingly, we conclude that convicting the defendant 

of [multiple] violations, rather than one, . . . was error and 

gives rise to a substantial risk of a miscarriage of justice." 

Constantino, 443 Mass. at 526.

Conclusion. The judgment on one of the indictments for

leaving the scene of an accident causing personal injury is

vacated, the verdict on that indictment is set aside, and that 

indictment is dismissed.9 The judgments on two of the 

indictments for leaving the scene of an accident causing 

property damage are vacated, the verdicts on those indictments 

are set aside, and those indictments are dismissed.10 The 

remaining judgments are affirmed.

So ordered.

 

9 The indictments charging personal injury are 13-496-1 and 

13-496-2.

10 The indictments charging property damage are 13-496-5, 

13-496-6, and 13-496-7.