Section Review

Double jeopardy double: Has the Appeals Court quietly added a second test to double jeopardy analysis?

John P. Puleo is an associate at Hassan & Reardon, P.C. in Boston, a litigation firm that specializes in professional liability, health law, employment law, criminal defense and general practice. Prior to joining the firm, he served as a state prosecutor in Boston and Detroit, Mich., for approximately 20 years. He teaches criminal justice at Northeastern University.
Toby M. Jesson is an associate at Hassan & Reardon, P.C. in Boston, a litigation firm that specializes in professional liability, health law, employment law, criminal defense and general practice. He served as a judge advocate and special assistant United States attorney in the United States Army Judge Advocate General's Corps for approximately four years prior to joining the firm.

In 1998, the Massachusetts Appeals Court issued its opinion in Commonwealth v Arriaga,1 a criminal appeal involving a claim of double jeopardy. The court undertook an extensive look into the history and development of double jeopardy law in the commonwealth. In dicta, the court purported to reach a tentative conclusion that the protection afforded by the prohibition against double jeopardy varied according to the procedural nature of the prosecution. That is to say, that the application of double jeopardy principles differed according to whether the charges were brought in a single proceeding, as opposed to successive prosecutions.

It is suggested herein that the Arriaga dicta relative to successive prosecutions was erroneous. Since its opinion, the court has addressed several criminal appeals involving double jeopardy challenges, and the court has cited to the Arriaga opinion many times. The citations to Arriaga vary, however, as to whether it stands for the existence of a bifurcated rule or a single rule. Consequently, since its decision in Arriaga, the Appeals Court has varied in its application of double jeopardy principles to the facts of the cases that come before it, and thus the law has grown more uncertain.

This article will first discuss the state of the law of double jeopardy before Arriaga. Then it will examine the Arriaga opinion itself. Finally, the article will describe the legal landscape in the commonwealth in the aftermath of Arriaga, where we are left to wonder whether there are two rules of double jeopardy enforced in Massachusetts or just one.

The law of double jeopardy

The Double Jeopardy Clause is located within a long list of criminal safeguards contained in the Fifth Amendment to the United States Constitution and reads as follows: "…nor shall any person be subject for the same offense to be twice put in jeopardy of life and limb."2 The clause enunciates the simple and fundamentally fair principle that an individual should not be punished twice for one individual wrong. There is no such language in this commonwealth's Declaration of Rights, but Massachusetts case law has indicated that this protection is embraced within Massachusetts common law and the state constitution's due process of law provisions.3 The law of double jeopardy in Massachusetts has historically been viewed as commensurate with federal law.4

The United States Supreme Court has held that the clause protects against three separate evils: (1) a second prosecution for the same offenses after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.5 Any meaningful application of these protections requires an understanding of the phrase "same offense." If two offenses are not the "same," then double jeopardy is not implicated. Likewise, if a person commits more than one offense, of course that person can be tried and punished for each separate offense without violating double jeopardy.6

The legislature has broad power to define crimes and to create punishments for those crimes.7 There are, of course, limits to this legislative power. For example, the legislature cannot criminalize speech that is protected by the First Amendment or require punishment that is cruel or unusual in violation of the Eighth Amendment. In the context of double jeopardy, however, the limitation on this legislative power is concerned with multiple prosecutions or punishments for the "same offense." If offenses are not the "same," then double jeopardy is not implicated.

Deciding whether offenses are the "same" or not, at least for purposes of double jeopardy, is not always as straightforward as one might think. Since the legislature is the branch of government that defines crimes, the first recourse is to look to the language of the statute that creates the offense in question. Oftentimes the legislative intent to create separate and distinct offenses is apparent from the plain language of the statute. When such is the case, the offenses are not the "same" and double jeopardy is not implicated. When the legislative intent is not clear, then rules of statutory interpretation must be employed in order to discern and effectuate the legislative intent.

Due to the large number of criminal offenses defined by the legislature, and their overlapping nature in both elements and policy objectives, oftentimes a single act by an individual may constitute a violation of more than one criminal statute. The common law in Massachusetts long ago recognized the potential inequity in allowing multiple prosecution and punishment for these overlapping or inclusive offenses for what amounted to essentially one criminal wrong. It was presumed that in certain of these circumstances the legislature may not have intended multiple prosecutions and punishments to stem from a single criminal act.

The common law sought to give effect to this presumed legislative intent in the context of double jeopardy clause analysis in what became known as the Morey rule, derived from Commonwealth v. Morey.8 The rule is utilized to determine whether two offenses are the "same" for purposes of double jeopardy analysis. The rule states that as long as each offense requires proof of an element that the other does not, the offenses are not the "same" for double jeopardy purposes.9 A familiar example is seen in a prosecution for assault and battery by means of a dangerous weapon and armed assault with intent to murder. Because assault and battery by means of a dangerous weapon requires proof of a battery, and armed assault with intent to murder does not, and armed assault with intent to murder requires proof of intent to murder, and assault and battery by means of a dangerous weapon does not, then the offenses are not the "same" for purposes of double jeopardy. Thus, a single act may constitute two separate punishable offenses, neither of which is "the same" as the other.10

The Morey rule is a rule of statutory construction, to be applied only where the legislature's intent as to multiple prosecutions and punishments is not clear.11 A case illustrating the situation in which the legislative intent to create a separate offense is clear is Commonwealth v. Alvarez.12 In Alvarez, the defendant was charged and convicted of possessing cocaine with intent to distribute, in violation of Massachusetts General Laws chapter 94C, section 32A, and of possessing cocaine with intent to distribute in a school zone, in violation of General Laws chapter 94C, section 32J, better known as the "school zone" statute. Upon conviction, the school zone statute expressly requires a mandatory minimum term of imprisonment of not less than two years, to be served from and after the sentence on the underlying offense. The defendant argued that the lower court's imposition of multiple punishments for offenses rising out of a single act violated his right not to be punished twice for the "same offense," an argument rooted in the defendant's application of the Morey rule to his charged offenses.13

The Supreme Judicial Court disagreed, noting that the Morey rule is merely a principle of statutory construction, the application of which is unnecessary where legislative intent is clear.14 The court held that in this instance the legislature had made it clear that it intended multiple punishments because it had expressly required that any sentence imposed on the school zone offense must begin from and after the sentence imposed on the underlying drug offense.15 Since the legislature had clearly stated its intention to punish separately the two offenses, there was no need to resort to the Morey test to determine whether the offenses are the "same."16

An additional aspect of Alvarez worth noting is the language of the opinion that appears to limit the dual prosecution and successive punishment of a defendant under this particular "school zone" statute to situations where the offenses are tried in a single proceeding.17 Indeed, the facts of Alvarez, as well as the facts of the cases on which it relies, speak to a scenario in which all offenses are tried in a single proceeding. For a variety of reasons, including judicial economy, prosecutorial efficiency and fairness to the defendant, a single criminal proceeding is representative of the normal manner in which multiple charges are brought. However, the double jeopardy clause does not require, either expressly or implicitly, that all charges be brought in a single proceeding or trial. Such a requirement, sometimes referred to as a "same transaction" or "same-conduct" test, was briefly adopted at the federal level by the United States Supreme Court in Grady v. Corbin.18 This type of double jeopardy analysis, however, was never expressly adopted by the Supreme Judicial Court. This interpretation was short lived at the federal level, as the United States Supreme Court quickly reverted back to the pure elements-based approach, embodied in Morey, within three years of adopting the same transaction test.19 The Court held that the "same transaction" test was not only wrong in principle, but also unstable in application.20 Thus, the Morey elements test remained the recognized test of double jeopardy in the absence of clearly expressed legislative intent.

Commonwealth v. Arriaga

In 1998, the Appeals Court decided the Arriaga case. The facts and the holding in Arriaga are straightforward, and one wonders why the Appeals Court even chose to publish the opinion. During an altercation in a shared apartment, the defendant attacked the victim, his wife, with a screwdriver.21 He entered guilty pleas to indictments charging assault and battery by means of a dangerous weapon and armed assault with intent to murder, and was sentenced to imprisonment on the assault and battery by means of a dangerous weapon and probation on the armed assault with intent to murder, to commence from and after his release from imprisonment.22 The defendant served his full prison sentence, and during his ensuing probationary term he violated the terms of his probation.23 The defendant was found guilty of the probation violation and was then sentenced to prison on the assault with intent to murder charge.24 The defendant then appealed, claiming that his consecutive sentences for the two convictions constituted unlawful duplicative punishment under both state and federal double jeopardy principles.25

The Appeals Court held that the consecutive punishments for the offenses of armed assault with the intent to murder and assault and battery by means of a dangerous weapon did not violate double jeopardy principles at either the state or federal level.26 This result was easily reached applying the Morey test, as the two offenses each have mutually exclusive elements. What is noteworthy, however, was the Appeals Court's decision to launch into extended dicta, purporting to review and analyze the history and development of double jeopardy law.27 Of particular interest was the following assertion:

We are aware that our analysis leads to the conclusion that Massachusetts today enforces precisely the same double jeopardy rule as that adopted by the United States Supreme Court in Grady - i.e., a potentially conduct-based examination in instances of successive prosecution, but an elements-based approach in the context of multiple punishments imposed at a single trial - a position that was repudiated later by the Supreme Court in United States v. Dixon, 509 U.S. at 704. However, Crocker points to that outcome. Indeed, as noted, that decision expressly adverts to the creation of a bifurcated rule, which applies different standards to instances of multiple punishments at a single trial versus successive prosecutions. See Commonwealth v Crocker, 384 Mass. at 359 n. 7.28

Thus, the Arriaga court stated it was compelled to acknowledge a bifurcated rule of double jeopardy in Massachusetts due to the creation of such bifurcation in footnote seven of Crocker. The problem is that footnote seven of Crocker expressly does not create such a bifurcated rule. The full text of footnote seven of Crocker reads as follows:

We do not address cases of successive prosecution for offenses arising from one criminal transaction. Determining whether such cases involve reprosecution for the "same offense" may require consideration of the actual facts developed at trial in support of the charge tried first, as different problems are presented when multiple prosecutions are involved.29

The Crocker decision, then, did not address cases of successive prosecution, as indeed there was no occasion for the Supreme Judicial Court to do so in that case, the facts there involving a single trial for both larceny over $100 and uttering a forged check. The fact that the Supreme Judicial Court in Crocker was itself pondering the issue of whether successive prosecutions may require a different rule is itself peculiar, as that court had a mere three years earlier confronted that very question and rejected the notion, finding the Morey-based elements test to be the rule whether the prosecutions be single or successive. See Commonwealth v Cepulonis.30

Thus, footnote seven of Crocker is itself nothing more than dictum by the Supreme Judicial Court. The Arriaga opinion's citation to, and purported reliance on, footnote seven of Crocker is itself dictum by the Appeals Court. Dicta, by definition, are a court's idle thoughts on a matter not properly before it, and can be at times enlightening, perhaps providing guidance on a court's future direction in an otherwise unsettled question of law. But what of dicta that improperly cites prior law? And what becomes of established precedent when the prior law, improperly cited, is itself erroneous dicta? These are the questions left in the wake of the Arriaga decision.

Appeals Court cases since Arriaga

Subsequent Appeals Court panels have cited often and at times indiscriminately the Arriaga opinion, including, specifically, the above-quoted excerpt. Some panels merely cite Arriaga for the unremarkable proposition that the Morey-based elements test remains the law of double jeopardy in Massachusetts.31 Others cite to it as authority for a bifurcated system of double jeopardy law in the commonwealth.32 Still other panels have cited Arriaga in support of the proposition that Morey guides the double jeopardy analysis in single-proceeding scenarios only, yet leave open the possible existence of an alternative conduct-based standard in successive-prosecution settings.33 A review of some of these decisions reveals the current state of apparent uncertainty of double jeopardy law in the commonwealth.

In Commonwealth v. Smith,34 a case involving a single prosecution for carjacking, unarmed robbery of a victim over 65 years of age and kidnapping, the court applied the appropriate Morey rule and cited Crocker and Arriaga as supporting authority, but used language that conditioned its application on a single prosecution.35 In Commonwealth v. Katsirubis,36 a case involving a single prosecution for forgery, uttering and knowingly submitting false nomination papers, the court again applied the traditional Morey rule, but this time cited Arriaga for the proposition that "Crocker dictates the outcome, i.e., a conduct-based standard in instances of successive prosecution, but an elements-based approach in the context of multiple punishments imposed at a single trial."37 In Commonwealth v. Williams,38 a case involving a single prosecution for assault and battery by means of a dangerous weapon and assault with intent to kill, the court was able to dispose of the defendant's double jeopardy claim, without discussion, in one sentence.39 This brevity is particularly remarkable when one considers that these charges are nearly identical to the charges in the Arriaga case itself.

A particularly interesting decision is that of Commonwealth v. Gaskins,40 a case involving a single prosecution for possession of a firearm under General Laws chapter 269, section 10(a), and possession of ammunition under General Laws chapter 269, section 10(h). The Appeals Court noted that the plain language of Section 10(h) of the statute makes clear, "A violation of this subsection shall not be considered a lesser included offense to a violation of subsection (a)."41 This is an example of clear legislative intent, previously discussed in Alvarez, the case in which the Supreme Judicial Court upheld consecutive sentences for a drug violation in a school zone. The Appeals Court in Gaskins likewise noted, "Where there is specific authorization for cumulative punishments, there is no prohibition against duplicative convictions," citing Alvarez.42 Notwithstanding such clear legislative intent to create two separate "offenses," the Appeals Court in Gaskins nevertheless applied the traditional Morey elements test to uphold both convictions.43 The court even stated in its opinion, "The legislative provision, however, is not the basis of our decision; we rely on the principles expressed in Arriaga, following the elements based rule of Morey."44 Thus, the Appeals Court (1) ignored a clear expression of legislative intent; (2) cited but ignored the controlling language of the Supreme Judicial Court in Alvarez; and (3) applied a rule of statutory construction (Morey) to give effect to presumed legislative intent.45

Another interesting citation to Arriaga occurred in Commonwealth v Bennett,46 a case involving successive prosecutions for assault and battery by means of a dangerous weapon and operating to endanger. In Bennett, despite the successive prosecutions, the court nevertheless applied Morey, but questioned whether Crocker and Arriaga required a different result under common law.47 The court further noted, "recent decisions of the Supreme Judicial Court fortify our view that the distinction would not change the result," but acknowledged, as had Arriaga, that "such questions are for the Supreme Judicial Court to resolve."48
Perhaps the most interesting case of recent vintage from the Appeals Court to reflect the current state of misunderstanding of double jeopardy law is Commonwealth v. Howze,49 a case involving a single prosecution for indecent assault and battery on a child and statutory rape. This case, like many from the Appeals Court recently, involved the oftentimes difficult analysis of whether the defendant's criminal behavior constituted discrete criminal acts.50 Along the way, however, the court advanced the current state of confusion surrounding double jeopardy law in several areas. First, the court misstated the famous language from North Carolina v. Pearce regarding the three protections afforded by the double jeopardy clause, attempting to broaden that language to include protections against not just the "same offense" but rather the "same or a related offenses."51 The cited language simply does not appear in North Carolina v. Pearce52 or in Luk v. Commonwealth, the Massachusetts case specifically cited by the Appeals Court. Second, the court in Howze also suggested that the third protection, i.e., the protection against successive punishments for the same offense, is "subject to legislative override."53 It is submitted that a protection explicitly listed in the United States Constitution cannot be "subject to legislative override."

As discussed previously, when the legislature explicitly articulates its intent to create separate offenses, the offenses, by definition, are not the "same" for purposes of double jeopardy. This is the notion the Supreme Judicial Court understood and correctly applied in Alvarez. It also is the same notion the Appeals Court ignored in Bennett. Third, the court in Howze stated, "Indeed, the court in Crocker expressly overruled any prior decisions to the extent that they suggested that it was ever necessary to look beyond an elements-based standard in determining whether multiple punishments were permissible in the case of noncognate crimes," citing Crocker and Arriaga.54 It is fascinating to observe, however, that this is not what Arriaga in fact held.

Finally, the most recent Appeals Court decision in this area is Commonwealth v Jones,55 a case involving a single prosecution for burning a motor vehicle and burning insured property with intent to defraud. The court, citing to Arriaga, applied the elements test, after noting that Crocker had rejected the same evidence test in favor of a strict elements-based approach.56 The court stated, "Since Crocker, this has been the consistent law of the Commonwealth."57 In light of the discussion above, at least as far as Appeals Court decisions are concerned, such a claim appears debatable.


The Appeals Court can claim the law has been consistent since Crocker, and that may be the case as far as the Supreme Judicial Court is concerned. However, the Appeals Court cases reviewed above hardly bear this out. There remain sufficient bases for practitioners to continue to wonder whether the Massachusetts Appeals Court has indeed pulled a double jeopardy double.

End notes

1. 44 Mass. App. Ct. 382 (1998).[back]

2. U.S. Const. amend. V.[back]

3. See Commonwealth v. Forte, 423 Mass 672, 674, 671 N.E.2d 1218 (1996). [back]

4. Id. at 674.[back]

5. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969).[back]

6. This is true even when the offenses are committed close together in time and location. At some point, such scenarios are addressed by what may be characterized as "discrete act" analysis. See Roger Michel, Multiple Convictions Based on a Single Criminal Act, 86 Mass. L. Rev. 165 (2002).[back]

7. See Commonwealth v. Alvarez, 413 Mass. 224, 231 (1992).[back]

8. 108 Mass 433 (1871).[back]

9. Id. at 434.[back]

10. Id.[back]

11. See Alvarez, 413 Mass. at 232.[back]

12. 413 Mass. 224 (1992).[back]

13. Id. at 230.[back]

14. Id. at 232.[back]

15. Id.[back]

16. Id.[back]

17. Alvarez, 413 Mass. at 231.[back]

18. 495 U.S. 508, 109 L.Ed. 2d 548, 110 S.Ct. 2084 (1990) (holding that even if two successive prosecutions were not barred by an elements-based analysis, such prosecutions could be barred under a conducts-based analysis).[back]

19. U.S. v Dixon, 509 U.S. 688 (1993).[back]

20. See id. at 709.[back]

21. Arriaga, 44 Mass. App. Ct. at 383.[back]

22. Id. at 382-83.[back]

23. Id.[back]

24. Id.[back]

25. Id. at 383. [back]

26. Arriaga, 44 Mass. App. Ct. at 383.[back]

27. Id. at 384-92 (detailing historical developments of double jeopardy law at both state and federal levels in analyzing and dismissing defendant's claim that multiple punishments violated his state and federal rights under double jeopardy).[back]

28. 44 Mass. App. Ct. at 391 (footnotes omitted).[back]

29. 384 Mass. at 359 (citations omitted, emphasis added).[back]

30. 374 Mass. 487 (1978).[back]

31. See Commonwealth v. Poff, 56 Mass. App. Ct. 201, 206 (2002); Commonwealth v. Morin, 52 Mass. App. Ct. 780, 786 (2001); Commonwealth v. Hammond, 50 Mass. App. Ct. 171, 174-75 (2000); Commonwealth v. Glanden, 49 Mass. App. Ct. 250, 252 (2000); Commonwealth v. Fernandez, 48 Mass. App. Ct. 530, 535 (2000).[back]

32. Commonwealth v. Katsirubis, 45 Mass. App. Ct. 132 (1998); Commonwealth v. Smith, 44 Mass. App. Ct. 394 (1998).[back]

33. Commonwealth v. Bennett, 52 Mass. App. Ct. 905 (2001).[back]

34. 44 Mass. App. Ct. 394 (1998).[back]

35. Id. at 395.[back]

36. 45 Mass. App. Ct. 132 (1998).[back]

37. Id. at 137.[back]

38. 46 Mass. App. Ct. 700 (1998).[back]

39. Id. at 704.[back]

40. 49 Mass. App. Ct. 903 (2000).[back]

41. Id. at 904.[back]

42. Id. [back]

43. Id.[back]

44. Id. [back]

45. Gaskins, 49 Mass. App. Ct. at 904.[back]

46. 52 Mass. App. Ct. 905 (2001).[back]

47. Id. at 906-07.[back]

48. Id. at 907.[back]

49. 58 Mass. App. Ct. 147 (2003).[back]

50. See supra note 6.[back]

51. Howze, 58 Mass. App. Ct. at 150 n.1.[back]

52. 395 U.S. 711, 717 (1969).[back]

53. Howze, 58 Mass. App. Ct. at 150 n.1.[back]

54. Id. at 153 n.7.[back]

55. 59 Mass. App. Ct. 157 (2003).[back]

56. Id. at 162.[back]

57. Id. at 163.[back]

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