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14

- P

- 1459 Appeals Court

COMMO NWEALTH 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 , Inst ructions to jury, Duplicative convictions, Double jeopardy. Constitutional
Law , Double jeopardy.

I ndictments 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 a n accident causing

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

and on three indictments charging leaving the scene of an2

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 scen e 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 call ed the police. Two police officers in

marked police cruisers met Kydd, and all three dro ve 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 defendan t

. " [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 A lden 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 sixty

five to seventy miles per hour in a thirty

- five miles per hour

zone. Three cars were damage d , and two occupants of different

vehicles were injured

.

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

run across the street to ward 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 instruct ed 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 co nflates

knowledge and intent, which are not wholly coterminous

. S ee

Commonwealth v. Sama , 411 Mass. 293, 29 8 (1991). Knowledge is

the operative element under the statute.

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

damage], the Commonwealth m ust 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 (19 86). 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). T he elements of leaving the scene of an

accident causing personal injury are similar, e xcept that the

Commonwealth must prove injury to the person rather than damage

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

Commonwealth v. Muir , 84 Mass. App. Ct. 635, 638

- 6 39 (2013).

The knowledge required under each statute is virtually identical

-- the defendant's knowledge of the collision or the defe ndant'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 T he 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 an d 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)( a 1/2)(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

for m 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 causin g injury to any person or

property

. . . shall be punished

. . . " (emphasis supplied ).

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

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

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

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

232, 237 (1913)

. T he 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. 191 6 , 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

wit hout 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, t he Legislature accepted this invitation in 1916.

Since 1924 , this amendment has been consistently construed

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

intent, was made criminal

. " Commonwealth v. Coleman , 2 52 Mass.

241, 2 44 (1925). See Commonwealth v. Nurmi , 250 Mass. 128, 131

(1924) ("I f [ 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

- 4 70 (1936) (describin g the change by the L egislature after

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

2

. Duplicative convictions

. Th e defendant maintain s 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

c onvicted, consistent with double jeopardy purposes, o f one count each of the wholly separate offenses of leaving the scene8

multiple convictions are duplicative and violate his right under

the F ederal constitution to be free from double jeopardy. See

Commonwealth v. Constantino , 443 Mass. 521, 523

- 5 26 (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 ris k.

I d

. at 52 6

.
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

penal ty 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 de al 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 th e 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)( a 1/2)(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 p rosecution' 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

. Th is is because th e statute is "directed at

punishing the defendant for conduct offensive to soci ety, 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 damage10

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

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

the scen e, 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 ra n 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.

T he 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. S t ate , 37 So. 3 d 324 , 326 (Fla. Dist . Ct. App. 2010) ( chain reaction multi

- car accident; one

scene ); State v. Ustimenko , 137 Wash . App. 109 , 116

- 119 (2007) ( c hain 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 T here was a near instantaneous collision with three

cars, and flight from that single sc ene

. 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 i n 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 Commonwealt h 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 conviction s must be vacated. Commonwealth v. Sanchez , 405 Mass

. 369 , 38 2 ( 1989). Compare Comm onwealth 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 indictment s are dismis sed. 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 ar e 13

- 496

- 5, 13

- 496

- 6, and 13

- 496

- 7.