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