In a recent Massachusetts Appeals Court opinion, Commonwealth v. Taylor, the court allowed the Commonwealth to essentially get “two bites at the apple” when prosecuting a defendant for firearm possession.
The defendant was first charged with “carrying a loaded firearm.” The charge of “carrying a loaded firearm,” as written in the statute, requires a predicate offense of either “carrying a firearm without a license” or “possession of a machine gun or sawed-off shotgun.” In essence, in order to charge the defendant with the charge of “carrying a loaded firearm,” the Commonwealth would have first had to charge the defendant with either of the two predicate offenses.
At the close of trial, the defendant argued that he must be found not guilty because the Commonwealth failed to charge him with either of the predicate offenses, and the trial judge granted the motion.
A few weeks later, the Commonwealth charged the defendant with “carrying a firearm without a license” based on the same conduct used to charge the defendant the first time. Initially, it was found that double jeopardy precluded the Commonwealth from doing as much, but upon further consideration, the motion judge submitted the following 4 questions to be answered by the Massachusetts Appeals Court:
- Is “carrying a loaded firearm” a freestanding crime?
- Is “carrying a firearm without a license” a lesser included offense of “carrying a loaded firearm”?
- Is the doctrine of judicial estoppel applicable against the defendant in the context of double jeopardy?
- If the answers to questions 1-3 are “yes,” can the Commonwealth proceed with charging the defendant with “carrying a firearm without a license”?
Upon review, the Massachusetts Appeals Court answered “no” to the first three questions, but “yes” to the fourth question for reasons not relied upon by the motion judge to find that charging the defendant with the second complaint of “carrying a firearm without a license” did not violate the prohibition against double jeopardy.
In coming to this conclusion, the Massachusetts Appeals Court first reviewed how the double jeopardy doctrine developed in Massachusetts, noting that double jeopardy “protects criminal defendants against being subjected to consecutive prosecutions for the same offense after acquittal or conviction…”
The court further noted that, “[t]he double jeopardy doctrine does not, however, prohibit consecutive prosecutions in every instance: its application is limited to instances in which jeopardy has actually attached and has then actually been terminated.”
In this case, the court found that the first crime the defendant was charged with was not an independent crime, but a sentencing enhancement, which made the prosecution void, and therefore, , jeopardy did not attach.
Additionally, the court reasoned that even if jeopardy had attached, jeopardy was not terminated by the entry of the required finding of not guilty because the finding of not guilty was based solely on the Commonwealth’s charging error and based on the evidence.
Despite this finding, the court acknowledged that it was allowing the Commonwealth “two bites at the apple” even though the second prosecution was allowed based on the Commonwealth’s charging error which should and could have been avoided unilaterally by the Commonwealth.
After recognizing the significant consequences these findings have for the defendant, e.g., repeated loss of liberty, subjection to electronic monitoring, and the emotional and financial toll of enduring prosecution, the court went on to suggest that if another motion to dismiss were bought on alternative grounds by the defendant, a judge could consider whether the prosecuting attorney’s conduct was unreasonably lacking in diligence and whether that conduct resulted in prejudice to the defendant.
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