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Single Act or Separate Act: Duplicative Convictions on Lesser Included Offenses in Massachusetts

The Fifth Amendment to the U.S. Constitution provides that no one shall "be subject for the same offense to be twice put in jeopardy of life or limb."  Most people understand that the Fifth Amendment protects a person from being tried for the same offense after being acquitted, but it also prohibits convictions for both greater and lesser included offenses, unless those offenses are based on separate acts.A lesser included offense is one for which all of the elements are included in the charged offense.  The Supreme Judicial Court recently considered whether actions that lead to separate injuries in a single incident constitute a single act or separate acts in the case of Commonwealth v. Figueroa.


The victim and her co-worker were on the same bus as the defendant.   At the victim's stop, the defendant spoke to her. When she said she did not want to talk to him, he grabbed her and struck her.  She could not get away because the defendant was holding her.  She noticed that the defendant had a knife and felt burning on her neck and face.  The co-worker pulled her away, and the two women ran.  The victim had injuries on her neck, face, ear, and arm.  She had lacerations and scars on her neck and face.

At issue in the appeal were charges of mayhem, Massachusetts General Laws c. 265, § 14, and assault and battery by means of a dangerous weapon causing serious bodily injury, Massachusetts General Laws c. 265, § 15A(c)(i).  The jury was instructed that the mayhem charge applied only to the victim's facial injuries, and the assault and battery charge applied only to the injuries to her neck.  The judge made clear that, for each charge, the jury was not to consider injuries to any part of the victim other than what they had been instructed to consider.

The Supreme Judicial Court found that the assault and battery offense is a lesser included offense of mayhem.  The defendant would only be subject to convictions for both if each crime was based on a different act.

The Supreme Judicial Court found that the two crimes here were based on separate acts.  The judge had provided clear instructions to the jury to consider only the cutting of the victim's face in the mayhem charge and only the cutting of her neck in the assault and battery charge.  The Supreme Judicial Court found that those were two separate acts.  The charges here were not duplicative, and the defendant's conviction on the mayhem and assault and battery by means of a dangerous weapon causing serious bodily injury charges were both upheld.

The trial judge gave clear and specific instructions that separated the two offenses, but that is not always the case.  If you are facing multiple charges related to assault and battery, you need a skilled Massachusetts criminal defense attorney to protect your rights.  Call the Law Offices of Richard Mucci at (781) 729-3999.

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