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SJC 13453, Commonwealth versus Lance Hollum.
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Okay.
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Attorney Rose, whenever you're ready.
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Thank you.
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Good morning, and may it please the court.
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My name is Rachel T. Rose and I represent Lance Hollum.
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Hollum's motion to dismiss should have been granted
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as to some of the charges.
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The single Justice's analysis wasn't quite right
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because the situation has changed
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now that we're locked into the realities of the first trial.
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The Commonwealth chose to structure
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Hollum's prosecution in an unusual way
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by indicting him for the shiv attacks
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via a bunch of subtly differentiated charges
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that all stemmed from the common route of assault.
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Instead of starting
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with the most serious charge for each attack,
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and asking the jury to work its way down through lesser-
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Slow down just a bit.
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Instead of starting with the most serious charge
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for each attack, and then asking the jury
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to work its way down through lesser included offenses
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until it reached the appropriate level of culpability.
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They asked the jury instead to take each charge
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and place it against the evidence to see if it fit.
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They weren't told anything other than what the elements were
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and what Hollum was alleged to have done.
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So they were measuring the same incident,
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the same quick attack with something sharp
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against each statute.
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That means that when they rejected
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the only aspect of assault with intent to murder
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that differentiated it from the other charges,
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they rejected the only thing making it non-duplicative.
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So it's not an implied acquittal,
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it's an actual acquittal on the intent element,
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followed by merger of the now duplicative charges.
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The Commonwealth couldn't have originally indicted
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and tried him for assault and ABDW for the same shiv attack
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without it being duplicative,
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and so they shouldn't be able to do it now
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just because they started out with something worse.
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Hollum's entitled to dismissal of the assault charges
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before his second trial, but even if they ran it again
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and he was convicted of both assault and ABDW,
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he'd be entitled to have those lesser charges
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dismissed afterwards anyway.
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In order to try him on assault
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as well as assault with intent to maim,
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or assault and battery with a deadly weapon,
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the prosecution would've had to run the trial
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completely differently.
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Maybe asking for an instruction
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tying the assault charges to the victim's claims
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that Hollum squirted shampoo at their eyes
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to make them flinch before going for them with the shiv.
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But it's too late for that
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because the indictment was for assault to murder
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with the shiv.
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The jury didn't find Hollum's guilt in a second assault
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as well as the shiv attack.
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What they found was that the shiv attack
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wasn't an armed assault with the intent to murder.
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Respecting the jury's verdict
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means that those charges have to be dismissed,
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as well as any of the others
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for which the jury in his second trial finds him guilty
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only of the lesser included offense of assault.
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Unless, of course, that's the last charge
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for that particular victim.
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And that brings us to the assault to maim mayhem
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second theory in the ABDW charge.
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Well, the Commonwealth is right
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that under the Maury Elements test,
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these two can be distinguished from each other.
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Under Crocker from my 16L letter,
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that's not always the last word on the issue.
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Again, the difference here
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is that we're locked into the realities of the first trial,
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and that limitation is what makes ABDW
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a lesser included offense of assault to maim
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under the route taken through the mayhem statute.
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Mayhem second theory includes an intentional touching
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because it punishes those who assault someone
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with a dangerous weapon,
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thereby causing serious or permanent physical injury.
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So ABDW is considered to be
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a lesser included offense of that.
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That what was charged as assault to maim
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and not mayhem itself normally would be enough
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to distinguish the two charges,
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but not when we've already run the trial before.
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There's no question whether a touching occurred.
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So all we're asking a new jury to decide
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by looking at both statutes
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is whether the elevated level of intent
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and intended injuries from the mayhem statute was present.
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That means assault and battery with a dangerous weapon
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is a duplicative charge.
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Had the Commonwealth originally charged it as mayhem,
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the jury could have worked that
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through mayhem, assault to maim,
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and assault and battery with a deadly weapon.
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It doesn't seem fair that they should be able
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to circumvent that by charging an assault
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rather than a completed one
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when they know you're gonna get both.
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Even if the Maury standards is satisfied in the indictments,
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once we know exactly what evidence is coming out at trial,
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it's safe to say that in these circumstances,
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the two offenses are sufficiently closely related
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so as to preclude punishment of both.
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The retrial for Hollum should proceed
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with the charges against him
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winnowed down to for each victim
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only the most serious of those for which the jury found
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his guilt beyond a reasonable doubt.
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That's ABDW for one victim,
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and assault to maim for the other.
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Doing this is the constitution's answer
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to the Commonwealth's tactic taken here
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of overcharging him via multiple different paths
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to capturing the same criminal wrong for each victim.
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Does anyone have any questions for me?
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Then I'll rest on my brief.
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Thank you.
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Okay, Attorney Marble.
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Good afternoon, if it may please the court.
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Elizabeth Melo Marble for the Commonwealth.
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It is the Commonwealth's position
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that there has not been a clear error of law,
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nor has there been an abuse of discretion
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made by the single Justice
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in denying the motions to dismiss.
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In other words, in upholding the Superior Court judge's
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denial of the defendant's motion to dismiss.
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The reason for that being
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that double jeopardy is not implicated here.
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These were multiple indictments of various offenses.
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Each had elements distinct from the other.
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So for those reasons, they're not duplicative.
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In addition, the convictions were vacated
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so his longstanding principle that says
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that where a conviction has been vacated,
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and it wasn't because of insufficient evidence,
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it wasn't sufficiency of the evidence issue.
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It was a procedural issue as was in this matter.
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The colloquy given to the defendant who proceeded pro se
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was deemed by the appeals court to be insufficient.
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So it was a procedural issue
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that led to the convictions being vacated.
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That kind of overturning, vacating of those convictions
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does not bar the commonwealth from retrying.
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He just can't be sentenced
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on duplicative.
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Correct.
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So he can be retried but he just can't be sentenced.
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Correct, but we're-
Not there yet.
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That's not where we're at.
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So the issue here is whether or not
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the Commonwealth is barred from retrying,
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which is the Commonwealth's intention
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as laid out in the brief,
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and as well as noted in the decision
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by the Superior Court judge, as well as the single Justice.
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For all of those reasons, the Commonwealth's position
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that we are not precluded from going forward
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and would ask that this court affirm that decision.
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Are there any questions?
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No?
I think we're all set.
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Then the Commonwealth would rest on its brief.
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Thank you.