author: Altice, Judge.

text:
    Christopher DARRING, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 49A02-1706-CR-1426
    Court of Appeals of Indiana.
    FILED May 2, 2018
    Attorneys for Appellant: James H. Voyles, Jr., Tyler D. Helmond, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Tyler G. Banks, Deputy Attorney General, Indianapolis, Indiana
   Altice, Judge.

Case Summary

[1] Christopher Darring brings this interlocutory appeal of the trial court's denial of his motion to suppress evidence obtained as the result of a search of his home. Specifically, he contends that the probable cause affidavit used to secure the search warrant contained false information and material omissions in reckless disregard for the truth.

[2] We affirm.

Facts & Procedural History

[3] After 2:00 in the morning on August 22, 2014, Officer Dwayne May of the Indianapolis Metropolitan Police Department (IMPD) was dispatched to 3132 W. 61st Street. He was responding to Darring's 911 call indicating that another man-later identified as Jason Holland, his next-door neighbor-was drunk and trying to start an altercation with Darring. Officer May spoke with both men briefly and learned that the argument was about money. Before leaving, he instructed them to stop acting like children, work it out, and sober up.

[4] Around the same time the next morning, Holland called 911 to report that Darring had shot him. Officer May was again dispatched to the scene. He parked along the road between the two properties and immediately smelled the odor of burnt marijuana after getting out of his vehicle. Officer May first spoke with Holland, who was intoxicated and had an injury to his leg. Officer May did not smell marijuana on Holland's person.

[5] After speaking with Holland, Officer May walked up the driveway toward Darring's house. Darring came out the front door and met Officer May in the driveway about twenty feet from the door. Officer May could smell the odor of raw marijuana, which he believed was coming from the house. He also smelled the odor of burnt marijuana on Darring's person as they spoke. Darring admitted shooting at the pavement to get Holland to leave his property. Officer May then asked Darring for identification and the two walked onto the front porch. Darring opened the storm door and then slightly opened the main door before closing it and telling Officer May that he did not want him to come inside. At that time, Officer May smelled the odor of marijuana coming from inside the house. Officer May then placed Darring under arrest for criminal recklessness for the shooting incident.

[6] Additional IMPD officers arrived at the scene to assist. Several noticed the strong odor of raw marijuana near the house. Each time the exhaust fan on top of the house kicked on, the marijuana smell became stronger outside. Additionally, two potted marijuana plants were located directly behind Darring's shed and marijuana pieces-referred to as shake-were discovered along the fence line between the Darring's and Holland's properties. Darring had several surveillance cameras around the outside of his house, one of which Officer May took down at some point.

[7] Officer May called for a narcotics detective because he believed Darring had a grow operation inside the house. IMPD Sergeant Stephan Crooke arrived on the scene around 4:30 a.m. and spoke with Officer May and then Holland. Holland told Sergeant Crooke about the incident and then informed him that he had been in Darring's house the prior week and observed thirty pounds of marijuana. Holland indicated that he had been in Darring's house several times and had smoked marijuana with Darring inside the house before. Darring, who was handcuffed outside, refused to speak with Sergeant Crooke. Sergeant Crooke then knocked on the front door and walked around the house. In addition to smelling a strong odor of raw marijuana near the shed and fence line, Sergeant Crooke could smell it coming from inside the house. Based on his training and experience Sergeant Crooke felt confident that there was "probably a grow in there possibly, or a large amount" of raw marijuana inside. Transcript Vol. III at 44.

[8] After gathering information from the scene, Sergeant Crooke returned to his office to prepare a probable cause affidavit for a search warrant. The affidavit written by Crooke read, in relevant part, as follows:

On 8/23/2014 at approximately 2:12 AM, Officer D. May and Officer S Greene received a run to a person shot at 3132 W 61st St. When Officer May arrived he spoke with the victim, a Jason Holland. Holland stated that his neighbor, Chris Darring, had shot at him with a semi automatic handgun while the two were in the yard between their residences. Chris Darring lives at 3132 W. 61st St and Jason Holland lives in the residence immediately to the east.
Officer May went to...Darring's residence, and knocked on the door. Chris Darring answered the door and came onto the porch to talk with officers. Officer May could immediately smell a strong odor of what he recognized as marijuana coming from inside the residence. Officer May has been in Law Enforcement for 18 years. Officer May knows the odor of marijuana from his training as a law enforcement officer and past experience investigating numerous marijuana cases.
While assisting Officers were conducting their investigation into the person shot report by looking for spent shell casings in the yard between the two residences, Officer S Greene and Officer Kazanauth identified two marijuana plants outside by the shed at 3132 W. 61st St.
I arrived on scene at approximately 430 AM. At that time I went to 3132 W 61st St. and knocked on the door. I observed cameras on the outside of the residence, and I could also smell the odor of raw marijuana. I spoke with Chris Darring. I attempted to obtain consent to search and Darring stated he wanted an attorney.
Through my training and experience as a law enforcement officer, I have become familiar with the odor of marijuana. I was exposed to the sight and odor of both raw and burned marijuana at the training academy and have participated in hundreds of arrests for marijuana. I immediately knew, based on this training and experience with the sight and odor of marijuana, that the odor inside of the residence was raw marijuana.
I also talked with the victim Jason Holland. Holland had a small graze on his leg that appeared consistent with a graze wound from a gun shot. Holland further said that he was in the residence at 3132 W 61st St last week and observed about 30 pounds of marijuana inside the residence. Holland stated he is a casual smoker of marijuana and knows marijuana. Holland stated that he would buy marijuana from Chris Darring and they were friends for awhile.
Based upon the facts and circumstances set forth above, I believe, and have good cause to believe, that probable cause exists to believe that there is a controlled substance, that is: Marijuana, inside of the residence...which would constitute evidence of a crime under the Indiana Uniform Controlled Substances Act.

Motion to Suppress Exhibits , Defendant's Exhibit 27. The warrant was issued at 8:46 a.m.

[9] During the subsequent search of the residence, police recovered approximately fifteen pounds of marijuana contained in heat-sealed packages and ball jars, as well as cocaine, psilocybin mushrooms, and 155 Xanax pills. Officers also found evidence of marijuana wax being manufactured in the kitchen and garage. Additionally, glass smoking pipes, scales, a heat-sealing device, a ledger, a safe, a surveillance system, and over $13,000 in cash were found.

The raw marijuana smell "overtook" Officer May when he walked inside the home to perform the search. Transcript Vol. II at 185.

[10] On August 26, 2014, the State charged Darring with Level 3 felony dealing in a schedule IV controlled substance, Level 5 felony dealing in marijuana, Level 6 felony possession of cocaine, Class B misdemeanor possession of marijuana, Class A misdemeanor possession of a controlled substance, and Class B misdemeanor criminal recklessness. The State later amended the charging information to elevate the criminal recklessness count to a Level 6 felony.

[11] In September 2015, Darring filed a motion to suppress the evidence found inside his house, challenging the validity of the search warrant and, particularly, the affidavit supporting the warrant. The trial court held a Franks hearing on February 22, 2016, and September 19, 2016. The parties later filed written arguments in support of their respective positions. Darring's arguments were laid out more precisely in the memorandum he filed with the trial court on April 20, 2017. Specifically, he argued that the affidavit upon which the search warrant was based contained material factual omissions that were made with reckless disregard as to whether the omissions made the affidavit misleading. Darring complained that Sergeant Crooke left out the following facts from the affidavit: Officer May had responded to the same location the previous morning to break up a dispute between Darring and Holland; marijuana shake was discovered along the fence line; raw marijuana could be smelled along the fence line and near the shed; and Officer May smelled marijuana throughout the neighborhood upon exiting his vehicle on the night in question. In addition to these omissions, Darring noted that due to a misunderstanding, the affidavit alleged that Officer May talked with Darring after knocking on the front door and smelled marijuana when the door was opened. Darring also emphasized his expert witness's testimony opining that no odor of raw marijuana would have been emanating from the home at the time the officers were on the scene because of the way the marijuana was packaged.

[12] In sum, Darring argued that if the correct and full information had been included in the affidavit, "it may have suggested to the issuing magistrate that the smell of marijuana may have been coming from somewhere outside the house" rather than inside the residence and that "Holland's statements were motivated by ill-will toward Darring". Appendix Vol. II at 57.

[13] On April 27, 2017, the trial court issued an order denying Darring's motion to suppress. Thereafter, Darring filed a motion to certify the ruling for interlocutory appeal, which the trial court granted on June 19, 2017. This court accepted jurisdiction of the appeal on August 7, 2017, pursuant to Ind. Appellate Rule 14(B). The interlocutory appeal is now before us.

Discussion & Decision

[14] Our review of the denial of a motion to suppress evidence is similar to other sufficiency issues. Keeylen , 14 N.E.3d at 871. We will affirm if there was substantial evidence of probative value to support the trial court's ruling. Id. In making this determination, we will not reweigh the evidence, and we will consider conflicting evidence most favorably to the ruling. Id. Unlike other sufficiency matters, however, we will consider uncontested evidence that is favorable to the defendant. Id.

[15] Darring argues that the probable cause affidavit contained false information and material omissions and was, therefore, submitted by Sergeant Crooke with a reckless disregard for the truth. Further, Darring contends that adding back in the material omissions and removing the false information results in the affidavit lacking probable cause.

[16] The Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution both require probable cause for the issuance of a search warrant. Keeylen , 14 N.E.3d at 871. The determination of probable cause is based on the facts of each case and requires the issuing magistrate to "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular place." Id.

[17] "A warrant is invalid where the defendant [establishes] by a preponderance of the evidence that the affidavits used to obtain the warrant contain perjury by the affiant, or a reckless disregard for the truth by him, and the rest of the affidavit does not contain materials sufficient to constitute probable cause." Jones v. State , 783 N.E.2d 1132, 1136 (Ind. 2003) (citing Franks , 438 U.S. at 171-72, 98 S.Ct. 2674 ). "[M]istakes and inaccuracies of fact stated in a search or arrest affidavit will not vitiate the reliability of the affidavits so long as such mistakes were innocently made." Utley v. State , 589 N.E.2d 232, 236-37 (Ind. 1992).

[18] In addition to the inclusion of false or misleading testimony in the affidavit, the defendant may also establish that the affiant omitted information "essential to a finding of probable cause". Keeylen , 14 N.E.3d at 872. In the case of an alleged omission, the defendant must establish that the affiant engaged in deliberate falsehood or reckless disregard for the truth in omitting the information and show that probable cause would no longer exist if such omitted information were considered by the issuing judge. Id. " Franks protects only against omissions that are 'designed to mislead, or that are made in reckless disregard of whether they would mislead' ". Id. (quoting United States v. Colkley , 899 F.2d 297, 301 (4th Cir. 1990) ).

[19] We turn first to the inaccurate information contained in the affidavit. There is no dispute that Sergeant Crooke got it wrong when he indicated in the affidavit that Officer May initially knocked on Darring's door, Darring then came out to talk with him on the porch, and Officer May immediately smelled a strong odor of marijuana coming from inside. In fact, Darring met Officer May outside about twenty feet from the door. A few minutes later, Officer May followed closely behind as Darring went onto the porch and started to enter through the front door to obtain his identification, and Officer May then smelled the odor of raw marijuana coming from inside the house.

[20] As Darring conceded below, this mistake was due to a misunderstanding. We can find no indication in the record that this misinformation in the affidavit was made with reckless disregard for the truth or that the mistake was anything other than innocently made. Nor do we believe this slight mischaracterization of when Officer May smelled marijuana at the front door was critical to the probable cause determination. Further, we find meritless Darring's unsupported assertion that Sergeant Crooke engaged in reckless disregard for the truth when he signed the affidavit without having personal knowledge of the events prior to his arrival and without Officer May's review. See Utley , 589 N.E.2d at 236 ("as long as participating officers seeking the issuance of a search warrant collectively have probable cause, their individual knowledge can be imputed to the officer signing the affidavit in support of the search warrant").

[21] As for the omissions, we initially observe that Darring improperly asserts several alleged omissions that he did not raise below. Most notably, Darring argues for the first time on appeal that Sergeant Crooke failed to state in the affidavit that the potted marijuana plants found behind the shed were in an area where there was no fence dividing the properties and that it was not clear which property the pots were actually on. Because Darring did not advance this basis below, it is waived. See Merritt v. State , 803 N.E.2d 257, 261 (Ind. Ct. App. 2004) (issue waived where the State did not advance the argument in its memorandum in opposition to the motion to suppress or at the suppression hearing).

[22] We will limit our discussion to the omissions raised in Darring's memorandum to the trial court in support of his motion to suppress. Darring alleges the following material omissions: 1) the previous day, Officer May had responded to a disturbance between Holland and Darring; 2) marijuana shake was found along the fence line; 3) officers smelled the odor of raw marijuana along the fence line and near the shed; and 4) Officer May smelled the odor of marijuana throughout the neighborhood upon exiting his vehicle on the night in question.

[23] Aside from noting these factual omissions, Darring makes no attempt to establish that Sergeant Crooke made them deliberately to mislead the issuing magistrate or with reckless disregard. Moreover, we cannot agree with Darring that these factual omissions were material to the determination of probable cause. See Query v. State , 745 N.E.2d 769, 772 (Ind. 2001) ("The typical formulation of 'material' facts is that they cast doubt on the existence of probable cause.").

[24] With respect to the first omission, Darring argues that the previous day's police run was critical information to a fair probable cause determination because it would have "established for the issuing magistrate a motive for Holland to accuse Darring." Appellant's Brief at 16. We agree with the State that this evidence was immaterial because the animosity between Holland and Darring was apparent from the fact that Darring shot at Holland.

[25] Additionally, we reject Darring's undeveloped claim that Holland's statements to Sergeant Crooke should not have been included in the affidavit because his credibility was unknown. Darring simply directs us to Jaggers for the proposition that "uncorroborated hearsay from a source whose credibility is itself unknown, standing alone, cannot support a finding of probable cause to issue a search warrant." Jaggers , 687 N.E.2d at 182. Unlike in Jaggers , however, Holland's identity was not unknown to the officers. See id. (observing that use of information from anonymous informants presents heightened reliability concerns because there is no possibility of criminal liability for filing a false police report). Further, Holland lived next door to Darring, had just been shot at and injured by Darring, and implicated himself in criminal activity when speaking with Sergeant Crooke. Holland's statements were properly included in the probable cause affidavit and were just a small part of the evidence supporting probable cause.

[26] Finally, we turn to the omissions related to the odor and existence of raw marijuana on the curtilage of Darring's home, as well as the general odor of marijuana Officer May detected upon exiting his vehicle. The affidavit referenced the two marijuana plants near the shed but did not indicate that marijuana shake was found along the fence line or that marijuana odor was detected in these areas and generally in the neighborhood. Darring argues that, if included, these facts would have caused the magistrate to "conclude that there was not a reasonable ground to believe Darring's residence was emitting the odor." Appellant's Brief at 15. We cannot agree. The fact that there were other sources of the odor does not negate the fact that both Officer May and Sergeant Crooke smelled the odor of raw marijuana coming from inside the house. In particular, Sergeant Crooke averred that he knocked on the door, observed cameras on the outside of the home, and could smell the odor of raw marijuana. Sergeant Crooke went on to state in the affidavit that based on his training and experience, he immediately knew that the odor inside the residence was raw marijuana.

[27] In sum, even if all of this omitted evidence had been included in the affidavit, probable cause for the issuance of the search warrant would still exist. Accordingly, the trial court properly denied Darring's motion to suppress evidence discovered as a result of the search.

[28] Affirmed.

Robb, J. and Vaidik, C.J., concur.

      Darring had, in fact, shot at the ground near Holland's feet and the bullet ricocheted and hit Holland in the leg, causing a grazing injury.

      This count was alleged in a separate part to be a Level 6 felony on the basis of a prior conviction.

      In Franks v. Delaware , 438 U.S. 154, 155-56, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court held that an evidentiary hearing is required "where the defendant makes a substantial preliminary showing that a false statement knowingly or intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause". At this hearing, referred to as a Franks hearing, the defendant is allowed to challenge the factual statements made in a search warrant affidavit. Id. ; see also Keeylen v. State , 14 N.E.3d 865, 870 n.3 (Ind. Ct. App. 2014), clarified on reh'g , 21 N.E.3d 840 (2014), trans. denied .

      Both Officer May and Sergeant Crooke testified that they smelled the odor of raw marijuana coming from inside the house. Darring directs us to his expert's testimony opining that it would have been impossible for the officers to attribute the smell to the house. We agree with the State that Darring's argument in this regard is an improper request to reweigh the evidence and judge the credibility of the witnesses.

      We do not agree that this case is similar to Jaggers v. State , 687 N.E.2d 180 (Ind. 1997). In Jaggers , police obtained a search warrant of the defendant's home based on an anonymous tip and an officer's testimony that two marijuana plots were located near the defendant's home. Actually, however, the plots were two and six miles from the home. Our Supreme Court held that this mischaracterization, even if innocent, was "critical when viewed in the factual context." Id. at 185. The Court explained: "Placing the plots 'near' Jaggers's residence implied a link between Jaggers and the plots that was not supported by the evidence. This, in turn, implied involvement by Jaggers in marijuana trafficking that was otherwise not reasonably inferable from the officer's testimony." Id. In the case at hand, the evidence establishes that Officer May smelled the odor of marijuana at the front door when Darring opened it. We do not find critical to the probable cause determination whether this occurred when Officer May first spoke with Darring or a few minutes later.


source: Caselaw Access Project

author: CYPHER, J.

license: Public Domain

text:
    COMMONWEALTH v. Richard O'LEARY.
    SJC-12445
    Supreme Judicial Court of Massachusetts, Norfolk..
    Argued March 5, 2018 Decided July 12, 2018
    Douglas T. Babcock for the defendant.
    Pamela Alford, Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Gaziano, Lowy, Cypher, & Budd, JJ.
   CYPHER, J.

The defendant, Richard O'Leary, asks this court to determine whether the Commonwealth met its burden of proving compliance with the citation requirement of G. L. c. 90C, § 2, which mandates the issuance of a traffic citation "at the time and place of the violation," despite the fact that a State police trooper did not issue a traffic citation at the scene of the violation or at the hospital following the interviews he conducted. Instead, before issuing the citation, the trooper submitted an accident report to his supervisor for approval, which the trooper received nine days later. Because we consider this unexplained, nine-day delay in the citation's issuance to be inconsistent with one of the two legislative purposes of the "no-fix" provision-specifically, the antiabuse purpose-we affirm the dismissal of the indictments.

Facts and procedural history. We adopt the Superior Court judge's factual findings, which we do not disturb absent clear error, and supplement them with uncontroverted details from the record.

Commonwealth v. Burnham, 90 Mass. App. Ct. 483, 484 n.1, 60 N.E.3d 396 (2016), citing Commonwealth v. Eckert, 431 Mass. 591, 592, 728 N.E.2d 312 (2000). Around 10:30 P.M. on April 19, 2014, State police Trooper Jared Gray responded to an accident on a highway off-ramp. Gray arrived to find that a single vehicle had rolled over and dislodged a highway sign; the police had closed the off-ramp, and emergency medical services were at the scene. Two individuals, the defendant and a passenger, Patricia Murphy, had been injured in the accident. Both the defendant and Murphy claimed to be passengers in the vehicle, and both were transported to a hospital.

Gray followed the ambulances to the hospital to interview the defendant and Murphy. He left his citation book in his vehicle. He first spoke with Murphy, who reiterated that she had been a passenger in the vehicle. During this interview, it appeared to Gray that Murphy was intoxicated. Gray then spoke with the defendant. Gray gave the defendant Miranda warnings, and the defendant admitted that he had been the driver of the vehicle and that he had had "a couple of beers." The defendant's "eyes were glassy" and "his speech was slurred." At the time of the accident, the defendant was on probation for operating a motor vehicle while under the influence of alcohol (OUI), subsequent offense. His license had been suspended, and he was not legally permitted to drive. Gray informed the defendant that he would be receiving a summons in the mail for OUI, a marked lanes violation, and operating with a suspended or revoked license.

Gray did not issue a citation at that time. Gray later submitted his investigation report to his supervisor, who approved the report nine days later, on April 28, 2014. On that day, Gray issued citations to the defendant for a marked lanes violation, operation of a motor vehicle with license suspended for OUI, operation of a motor vehicle with license revoked, and OUI, fifth offense. Gray then placed the citations in the barracks mailbox. Due to a ZIP code error in the State police reports system, however, the defendant did not receive the citation until approximately five to six weeks after the incident.

A Superior Court judge granted the defendant's motion to dismiss on the grounds that Gray had failed to issue a citation "at the time and place of the violation," as required under § 2, and because the Commonwealth did not meet its burden of demonstrating that an exception in § 2 applied. The Appeals Court reversed, holding that the case fit within the third statutory exception, which excuses delayed delivery of citation "where the court finds that a circumstance, not inconsistent with the purpose of [ § 2 ] ..., justifies the failure." Commonwealth v. O'Leary, 92 Mass. App. Ct. 282, 284, 286-287, 83 N.E.3d 186 (2017), quoting G. L. c. 90C, § 2. While noting that there did not appear to be "any strong reason for the delay" in issuing the citation, id. at 286, 83 N.E.3d 186, the court considered dismissal unnecessary where "there was no manipulation or misuse of the citation, and [Gray] notified the defendant as soon as he had completed his interview ... that a citation would be issued." Id. at 286-287, 83 N.E.3d 186, quoting Commonwealth v. Moulton, 56 Mass. App. Ct. 682, 685, 779 N.E.2d 698 (2002). We granted the defendant's motion for further appellate review.

Discussion. Section 2 requires a police officer assigned to traffic enforcement duty to

"record the occurrence of automobile law violations upon a citation, filling out the citation and each copy thereof as soon as possible and as completely as possible .... Said police officer shall inform the violator of the violation and shall give a copy of the citation to the violator.... A failure to give a copy of the citation to the violator at the time and place of the violation shall constitute a defense in any court proceeding for such violation, except where the violator could not have been stopped or where additional time was reasonably necessary to determine the nature of the violation or the identity of the violator, or where the court finds that a circumstance, not inconsistent with the purpose of this section to create a uniform, simplified and non-criminal method for disposing of automobile law violations, justifies the failure. In such case the violation shall be recorded upon a citation as soon as possible after such violation ...."

In 1965, then Governor John A. Volpe proposed what has been referred to as the "no-fix" provision, in response to the concern that "[t]he nature of traffic citations renders them uniquely suited to manipulation and misuse." Commonwealth v. Pappas, 384 Mass. 428, 431, 425 N.E.2d 323 (1981), citing 1965 Senate Doc. No. 839, at 2. See Newton Police Ass'n v. Police Chief of Newton, 63 Mass. App. Ct. 697, 699, 828 N.E.2d 952 (2005). Prior to the provision's insertion, a "police officer who witnessed a traffic offense would record the violation on a citation form and submit it to police headquarters. Within three days from the receipt of the citation, the police chief or a designated officer of at least sergeant grade would decide [how] to proceed"-for instance, by issuing a written warning or court complaint, or by voiding the citation. Id.

By inserting § 2 in the statute to require the issuance of a citation "at the time and place of the violation," the Legislature sought to eliminate "opportunity for subsequent maneuvering or pressure" that the prior three-day approval window created. 1965 Senate Doc. No. 839, at 2. See Newton Police Ass'n, 63 Mass. App. Ct. at 700-701, 828 N.E.2d 952 (in enacting § 2, Legislature deliberately transferred discretion from police chief to police officer at scene to deal with perceived evil of traffic citation manipulation).

"Where the requirements of the statute are not followed, the complaint shall be dismissed regardless of whether the defendant was prejudiced by the failure." Commonwealth v. Carapellucci, 429 Mass. 579, 581, 709 N.E.2d 818 (1999), citing Commonwealth v. Mullins, 367 Mass. 733, 735, 328 N.E.2d 503 (1975). In this case, it is undisputed that the defendant did not receive "a copy of the citation ... at the time and place of the violation." G. L. c. 90C, § 2. It is therefore the Commonwealth's burden to establish that one of the three statutory exceptions applies. See Mullins, supra at 734-735, 328 N.E.2d 503.

The Commonwealth argues that the third statutory exception applies in these circumstances. This exception excuses the "failure to give a copy of the citation to the violator at the time and place of the violation ... where the court finds that a circumstance, not inconsistent with the purpose of this section to create a uniform, simplified and non-criminal method for disposing of automobile law violations, justifies the failure." G. L. c. 90C, § 2. The defendant maintains that the third exception does not apply to these facts, and argues further that, even if it does, the case still must be dismissed in light of additional statutory language requiring that a citation be issued "as soon as possible" after the violation.

We determine the applicability of the third exception with reference to the dual purposes of § 2. The first purpose, which "is apparent from the common name of the statute, the 'no-fix' law," Pappas, 384 Mass. at 431, 425 N.E.2d 323, is to prevent "manipulation or misuse of the citation process because of any unnecessary or unreasonable delay." Commonwealth v. Cameron, 416 Mass. 314, 316 n.2, 621 N.E.2d 1173 (1993), citing Pappas, supra. The second purpose is "to afford prompt and definite notice of the nature of the alleged violation to the putative violator." Pappas, supra. We also bear in mind the principle that, under the no-fix statute, "[e]ach case must be decided on its own peculiar facts." Commonwealth v. Provost, 12 Mass. App. Ct. 479, 484, 426 N.E.2d 453 (1981).

In the trial court and before us, the Commonwealth's arguments have focused primarily on whether the defendant was placed on notice of the impending criminal charges, such that the notice purpose of the no-fix statute was satisfied. To be sure, in some cases (including those on which the Commonwealth relies), the question of notice was dispositive of whether the third exception in § 2 applied, because the circumstances of those cases did not also implicate the antiabuse purpose of the no-fix provision. See, e.g., Cameron, 416 Mass. at 316 n.2, 621 N.E.2d 1173 ("The other purpose of the 'no-fix' law is not involved in this case. There is no suggestion of manipulation or misuse of the citation process because of any unnecessary or unreasonable delay"); Moulton, 56 Mass. App. Ct. at 683, 685, 779 N.E.2d 698 (no-fix purpose of statute satisfied where "there was no manipulation of misuse of the citation," and officer promptly issued citation to defendant on day of accident); Commonwealth v. Kenney, 55 Mass. App. Ct. 514, 518, 772 N.E.2d 53 (2002) ("The defendant makes no contention that the 'no-fix' ticket manipulation aspect of the statute is implicated. Rather, the defendant's principal claim rests upon the notice provision").

Here, however, the facts mandate that we also consider whether the antiabuse purpose of § 2 has been satisfied. We conclude that it has not. Gray did not give the defendant a citation at the scene of the accident or at the hospital. This is despite the fact that "[t]he defendant was present at the scene of the accident and Gray completed his investigation into the nature of the violation and the identity of the violator by the time he left [the hospital]." Rather, Gray returned to the police station, drafted an accident report, and submitted that report to his supervisor-who took nine days to approve Gray's report. Only then did the citation issue. The Superior Court judge deemed this delay "[i]nexplicabl[e]." What is more, Gray's testimony at the hearing indicates that the approval process and ensuing delay were attributable to the regular procedure of his department:

Q.: "Now, after you had left the hospital, what is the procedure you underwent to inform [the defendant] of the charges?"
A.: "Basically when it's a summons, we go back; we complete our investigation, write the report, print out the documentation, submit it to a supervisor. A supervisor then approves that report. Once it's approved, you print it and submit all your court paperwork. At that time, I wrote the citation and put it in the mail for [the defendant]."

The third exception of G. L. c. 90C, § 2, excuses delayed delivery of a citation where "a circumstance, not inconsistent with the purpose of this section ..., justifies the failure." As mentioned, the no-fix provision was added to § 2 to eliminate not only actual manipulation or misuse of the citation process, but also the " 'opportunity for subsequent maneuvering or pressure' afforded by the [prior] three-day [approval] period" (emphasis added). Newton Police Ass'n, 63 Mass. App. Ct. at 699, 828 N.E.2d 952, quoting 1965 Senate Doc. No. 839. Under the earlier practice that the Legislature sought to eliminate, an officer on traffic duty would record the citation and submit it to headquarters for later approval by the officer's supervisors. Newton Police Ass'n, supra.

The circumstances that caused the delay in this case are strikingly similar: rather than issue a citation "at the time and place of the violation," G. L. c. 90C, § 2, Gray drafted an accident report and submitted it to his supervisor, whose approval was necessary for the citation to issue. It was this very practice of traffic officers requiring supervisory approval, and the delay in time that this created between the traffic violation and the ultimate issuance of the citation, that the Legislature deemed too great an "opportunity for subsequent maneuvering or pressure." Newton Police Ass'n, 63 Mass. App. Ct. at 699, 828 N.E.2d 952, quoting 1965 Senate Doc. No. 839. Here, the delay was for an "[i]nexplicabl[e]" nine days. We cannot conclude, based on the history and antiabuse purpose of the no-fix provision, that these circumstances somehow remain "[ ]consistent with the purpose of [ § 2 ]." G. L. c. 90C, § 2. Even if it were undisputed that the defendant received sufficient notice of the impending charges against him, this same fundamental problem would remain.

The Commonwealth argues that the accident itself was so serious that it created an "ineradicable record of the event," Carapellucci, 429 Mass. at 581, 709 N.E.2d 818, such that any potential for a "fix" was eliminated. Indeed, our cases recognize that "the very seriousness of particular charges tends to minimize the importance of absolute observance of the [citation] procedures because ... 'fix' is virtually excluded, and notice is implicit." Commonwealth v. Babb, 389 Mass. 275, 283, 450 N.E.2d 155 (1983). In Pappas, 384 Mass. at 431-432, 425 N.E.2d 323, for example, where the defendant's vehicle "crossed the center line of a public street and struck a pedestrian," causing fatal injuries, we acknowledged that it was "unlikely in such circumstances that police officers responding at the scene would regard this as a minor accident in which their discretion concerning whether to issue a citation would be absolute and unchecked." See Babb, supra at 284, 450 N.E.2d 155, citing Pappas, supra (same). On the other hand, in Carapellucci, 429 Mass. at 580, 709 N.E.2d 818, the defendant's vehicle collided head on with a lamp post, resulting in minor injuries to the defendant's passenger. This court observed that that was "not a case in which the serious injuries resulting from the traffic violation ... put the defendant on notice of the potential charges against him and created an ineradicable record of the event." Id. at 581, 709 N.E.2d 818, citing Pappas, supra at 431, 425 N.E.2d 323. See Carapellucci, supra at 582, 709 N.E.2d 818 (no-fix purpose furthered by "the causing of a serious injury, which creates such a record that manipulation is extremely unlikely").

This case hews more closely to Carapellucci, as it involves only a single-vehicle accident in which no third person was injured (let alone injured seriously or fatally). To be certain, the accident in this case was significant: the defendant's vehicle rolled over, the defendant and Murphy were transported to the hospital on stretchers, and Murphy testified that she broke several ribs. However, the Commonwealth-whose burden it is to establish that a statutory exception in § 2 applies-cites no authority holding that such a single-vehicle accident involving nonfatal injuries to a passenger but no third person creates an "ineradicable record of the event," such that the antiabuse purpose of § 2 is satisfied. Carapellucci, 429 Mass. at 581, 709 N.E.2d 818. Cf. Burnham, 90 Mass. App. Ct. at 490, 60 N.E.3d 396 ("we are unaware of any authority, and the Commonwealth cites to none, which has held that a single-[vehicle] accident, standing alone, provides a defendant with sufficient implied notice that satisfies the requirements of G. L. c. 90C, § 2").

Conclusion. While "failure to comply with [the citation requirement of § 2 ] is not fatal where the purposes of the statute have not been frustrated," Babb, 389 Mass. at 283, 450 N.E.2d 155, here, one of those purposes has been frustrated. The nine-day delay in the issuance of the citation, in the absence of any justification (legitimate or otherwise), contravenes the original, antiabuse purpose of the statute, such that the third exception in § 2 does not apply. "[W]here an important feature of the statutory arrangements was flouted through sloth or sheer inattention of the police, the subsequent complaint [must be] dismissed." Commonwealth v. Perry, 15 Mass. App. Ct. 281, 283, 444 N.E.2d 1319 (1983), citing Mullins, 367 Mass. at 735-736, 328 N.E.2d 503. The order dismissing the complaint against the defendant is affirmed.

So ordered.

      State police trooper Jared Gray testified at the motion to dismiss hearing that, upon leaving the hospital, his shift was over so he went home. The record does not establish exactly when Gray submitted the report to his supervisor.

      Gray testified that, when sending mail, officers from his department "put mail in our barracks mail box. That barracks mail box is transported to headquarters in Middleboro, and then sent out from there." He agreed that "it would have been at least several days" between when he placed an item in the mail box and when that item was mailed.

      The relevant statutory language took its present form in 1985 through St. 1985, c. 794, § 3. See Newton Police Ass'n v. Police Chief of Newton, 63 Mass. App. Ct. 697, 700 n.5, 828 N.E.2d 952 (2005).

      The first exception, which excuses immediate issuance of a citation "where the violator could not have been stopped," is not applicable here. Nor do these facts support an application of the second exception, "where additional time was reasonably necessary to determine the nature of the violation or the identity of the violator." G. L. c. 90C, § 2. The Superior Court judge observed that "[t]he defendant was present at the scene of the accident and Gray completed his investigation into the nature of the violation and the identity of the violator by the time he left [the hospital]."

      The Appeals Court observed in its opinion that "there does not appear to have been any strong reason for the delay," adding that it "[did] not condone Trooper Gray's election to await review and 'approval' of his report by his supervisor before issuing a citation." Commonwealth v. O'Leary, 92 Mass. App. Ct. 282, 286 & n.8, 83 N.E.3d 186 (2017).

      As the Appeals Court noted, "[t]here are no medical records pertaining to the injuries suffered by the defendant or Murphy in the record before us. However, Murphy testified that she suffered several broken ribs." O'Leary, 92 Mass. App. Ct. at 283 n.3, 83 N.E.3d 186.

      Given our holding that the antiabuse purpose of the no-fix provision was frustrated by the initial nine-day delay in the citation's issuance, we need not address the additional five to six weeks that it took for the defendant to actually receive the citation. Nor do we address the defendant's additional argument that the citation was not issued "as soon as possible" after the violation, as required under § 2.


author: LOWY, J.

text:
    COMMONWEALTH v. John FREDETTE.
    SJC-11931
    Supreme Judicial Court of Massachusetts, Worcester..
    Argued November 7, 2017 Decided July 13, 2018
    Ellyn H. Lazar-Moore, Assistant District Attorney, for the Commonwealth.
    Joseph A. Hanofee, Northampton, for the defendant.
    Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
   LOWY, J.

In 2014, a Superior Court jury convicted the defendant, John Fredette, of murder in the first degree on a theory of felony-murder, with aggravated kidnapping as the predicate felony.

The jury based their finding of aggravated kidnapping on the third paragraph of the current version of the kidnapping statute, which punishes a kidnapping committed "while armed with a dangerous weapon and inflict[ing] serious bodily injury thereby upon another person." G. L. c. 265, § 26, third par.

The defendant appealed and, after his appeal was entered in this court, he filed a motion for a new trial, arguing that the trial judge erred in not providing a merger doctrine instruction to the jury sua sponte. As discussed infra, the merger doctrine limits the application of the felony-murder rule by requiring the Commonwealth to prove that the defendant committed or attempted to commit a felony that is independent of the conduct necessary to cause the victim's death. This prevents every assault that results in a homicide from serving as the predicate for felony-murder. The defendant claimed that because a single act of violence (a shooting) caused the victim's death and satisfied an element of the aggravated kidnapping, the felony of aggravated kidnapping merged with the killing and could not serve as the predicate for felony-murder. The motion judge, who was also the trial judge, agreed. The judge concluded that a new trial was required because the omission of an instruction on merger created a substantial risk of a miscarriage of justice. The Commonwealth appealed from that ruling, which is the matter presently before us. We conclude that because the underlying predicate felony-kidnapping-has an intent or purpose separate and distinct from the act causing physical injury or death, aggravated kidnapping is sufficiently independent of the resulting homicide and, therefore, the merger doctrine is inapplicable. Accordingly, the omission of a merger instruction was not an error, and the defendant's motion for a new trial should not have been granted on that ground.

In the course of deciding the Commonwealth's appeal, however, we discovered that the current version of the kidnapping statute, G. L. c. 265, § 26, under which the defendant was prosecuted, is materially different from the version that was in effect when the killing occurred in 1994. Specifically, in 1994, G. L. c. 265, § 26, did not include the form of aggravated kidnapping that the Commonwealth relied on as the predicate for murder in the first degree on a theory of felony-murder (i.e., kidnapping aggravated by being armed with a dangerous weapon and inflicting serious bodily injury on the victim). Moreover, G. L. c. 265, § 26, as it existed in 1994, carried a maximum sentence of ten years in prison and, as it relates to the defendant's case, could not have supported a conviction of murder in the first degree on a theory of felony-murder because it was not a felony punishable by up to life imprisonment (i.e., a life felony). The Commonwealth now acknowledges that, because of this error, the defendant's conviction of murder in the first degree cannot stand. Accordingly, we also vacate the defendant's conviction of murder in the first degree and remand the case to the trial judge to determine whether, on this record, a conviction of murder in the second degree should enter or whether the defendant is entitled to a new trial.

Background. 1. Facts. We summarize the facts the jury could have found as set forth by the judge in her written decision on the defendant's motion, supplemented with uncontroverted testimony from trial. On the evening of February 15, 1994, the victim walked out of a bar in Worcester, leaving behind his favorite Boston Celtics jacket, house keys, a package of cigarettes, and an unfinished beer. He was never seen again. The victim's disappearance remained unsolved for eighteen years. On February 15, 2012, a Worcester County grand jury returned an indictment charging the defendant with murder. Matteo Trotto and Elias Samia, two of the defendant's cohorts in his illegal drug operation, were also indicted for the murder.

The defendant had been arrested for trafficking in cocaine a few months before the victim disappeared, following an undercover investigation into the defendant's drug operation. The defendant and Trotto believed that the victim might have been the informant who provided the police with information leading to the defendant's arrest. To evade conviction, the defendant and Trotto concocted a scheme to have the victim testify on the defendant's behalf and offer an exculpatory, perjured story. According to this plan, the victim would testify that he was the confidential informant who provided the information to the police that established probable cause to arrest the defendant, and explain that the information he provided was false. To ensure that the victim would testify, the defendant and Trotto gave him copious amounts of cocaine, while also threatening his life.

On the day of the defendant's trial, the victim never appeared in court to testify. As a result, on February 14, 1994, the defendant pleaded guilty to a reduced offense. He was sentenced to a State prison sentence, but execution of that sentence was stayed.

On the evening of February 15, 1994, the victim was sitting in the bar when Trotto appeared, coaxed the victim outside, and ushered him into a motor vehicle occupied by the defendant and Samia. Soon after the victim entered the vehicle, the defendant and Samia began severely beating him. In the course of the beating, Samia shot and killed the victim. The defendant, Samia, and Trotto buried the victim's body in a shallow grave. The victim's body was never recovered.

2. The jury instructions. Insofar as relevant here, the judge instructed the jury on murder in the first degree as a joint venturer on the theories of deliberate premeditation and felony-murder, with aggravated kidnapping as the predicate felony. Specifically, she instructed the jury that the Commonwealth had the burden to prove beyond a reasonable doubt that

"the defendant committed the kidnapping while armed with a dangerous weapon and inflicted serious bodily injury against [the victim], or knowingly participated with Matteo Trotto and Elias Samia in doing so, with the knowledge that Elias Samia possessed a weapon and that the defendant knew Elias Samia would or could use that weapon in the commission of the crime."

See G. L. c. 265, § 26, third par.

The judge also instructed the jury that the Commonwealth had to prove beyond a reasonable doubt that the defendant committed the kidnapping while armed with a dangerous weapon and that a firearm was a dangerous weapon. The defendant did not request a merger instruction, and the judge did not provide such an instruction sua sponte. The jury convicted the defendant of murder in the first degree on a theory of felony-murder.

3. The defendant's motion for a new trial. Although the defendant did not request a merger instruction at trial, he contended in his motion for a new trial that the trial judge's failure to provide the instruction, sua sponte, created a substantial risk of a miscarriage of justice. Specifically, he claimed that because a single act of violence (the shooting) caused the victim's death and thus completed an element of aggravated kidnapping (inflicting serious bodily injury), the felony of aggravated kidnapping merged with the killing and could not have served as the predicate for felony-murder. As mentioned, the judge agreed, and the Commonwealth appealed from that ruling.

Discussion. We review the disposition of a motion for a new trial to determine whether there has been "a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). We conclude that the judge erred in granting the defendant's motion for a new trial because the intent or purpose underlying the felony of aggravated kidnapping was separate and distinct from the assault that resulted in the homicide; thus, the merger doctrine was inapplicable.

Before we explain the reasons for our conclusion, we reiterate the analytical framework required to determine whether a felony merges with a subsequent killing, as it applies to cases tried prior to Commonwealth v. Brown, 477 Mass. 805, 807, 81 N.E.3d 1173 (2017), where this court prospectively abolished the concept of constructive malice, which in turn eliminated our common-law felony-murder rule as an independent theory of murder. 1. The merger doctrine. "The effect of the felony-murder rule is to substitute the intent to commit the underlying felony for the malice aforethought required for murder. Thus, the rule is one of 'constructive malice.' " Commonwealth v. Gunter, 427 Mass. 259, 271, 692 N.E.2d 515 (1998), quoting Commonwealth v. Matchett, 386 Mass. 492, 502, 436 N.E.2d 400 (1982). The merger doctrine functions as a constraint on the application of the felony-murder rule by limiting the circumstances in which a felony may serve as the predicate for felony-murder. See Commonwealth v. Morin, 478 Mass. 415, 430, 85 N.E.3d 949 (2017). Specifically, the doctrine requires the Commonwealth to prove that the defendant committed or attempted to commit a felony that is independent of the act necessary for the killing. See Commonwealth v. Holley, 478 Mass. 508, 519, 87 N.E.3d 77 (2017) ; Morin, supra. This requirement ensures that not every assault that results in a death may serve as the predicate for felony-murder. Morin, supra. Without the merger doctrine, the distinction between murder and other homicides would be rendered meaningless because all homicides could be enhanced to murder on the theory of felony-murder with the assaultive conduct preceding the homicide serving as the predicate felony. Id., quoting Gunter, 427 Mass. at 272, 692 N.E.2d 515. See Morin, supra, citing Crump & Crump, In Defense of the Felony Murder Doctrine, 8 Harv. J.L. & Pub. Pol'y 359, 377 (1985) (merger doctrine prevents prosecution from bootstrapping lesser-included homicide offenses into murder). For this reason, "where the only felony committed [apart from the murder itself] was the assault upon the victim which resulted in the death of the victim, the assault merge[s] with the killing and [cannot] be relied upon by the state as an ingredient of a 'felony murder.' " Commonwealth v. Quigley, 391 Mass. 461, 466, 462 N.E.2d 92 (1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2356, 86 L.Ed.2d 258 (1985), quoting State v. Branch, 244 Or. 97, 100, 415 P.2d 766 (1966).

As detailed infra, determining whether a predicate felony merges with the homicide depends on the resolution of two distinct inquiries. First, if the underlying predicate felony has an intent or purpose separate and distinct from the act causing physical injury or death, the merger doctrine is inapplicable, and the felony may serve as the predicate for felony-murder; no further analysis is required. See Holley, 478 Mass. at 519-520, 87 N.E.3d 77 ("intent to steal does not cause a homicide"); Morin, 478 Mass. at 431, 85 N.E.3d 949. If the felony does not have an independent intent or purpose, the second inquiry is whether the conduct constituting the felony is separate and distinct from the conduct that caused the homicide itself. See Commonwealth v. Kilburn, 438 Mass. 356, 358-359, 780 N.E.2d 1237 (2003) (armed assault in dwelling). If the conduct is distinct, the felony does not merge with the homicide. See id. at 359, 780 N.E.2d 1237. However, where the underlying felony does not have an independent intent or purpose, and the same act that is necessary to complete the felony also causes the homicide, the felony merges with the homicide and cannot serve as the predicate for felony-murder. Id.

a. First inquiry: whether there is an independent felonious purpose. Determining whether a felony is capable of merging with the resulting homicide appears to be a source of confusion in our case law. Compare Commonwealth v. Christian, 430 Mass. 552, 556-557, 722 N.E.2d 416 (2000) (analyzing intent of underlying felony, armed robbery, to determine whether merger applies), overruled on other grounds by Commonwealth v. Paulding, 438 Mass. 1, 777 N.E.2d 135 (2002), with Commonwealth v. Bell, 460 Mass. 294, 299-303, 951 N.E.2d 35 (2011) (analyzing assaultive element of felony, armed home invasion, to determine whether merger applies). See Commonwealth v. Lopez, 87 Mass. App. Ct. 642, 646, 34 N.E.3d 750 (2015) (analyzing whether and how analytical frameworks set forth in Christian, supra, and Bell, supra, can coexist). We emphasize that the merger doctrine analysis must always begin with resolving the first inquiry-whether the underlying felony is capable of merging with the killing. See Holley, 478 Mass. at 520, 87 N.E.3d 77, citing Morin, 478 Mass. at 430, 85 N.E.3d 949. The merger doctrine is inapplicable to felonies that have an underlying intent or purpose separate and distinct from the intent to cause physical injury or death. Holley, supra. Morin, supra. See State v. Marquez, 376 P.3d 815, 823 (N.M. 2016) ("there must be a felonious purpose that is independent from the purpose of endangering the physical health of the victim before the dangerous felony can be used" as predicate for felony-murder).

Determining whether a felony has an intent or purpose separate and distinct from the act causing physical injury or death requires an objective analysis of the predicate felony, which is not influenced by the defendant's subjective motivation or intent to commit the underlying felony. See id. ("a dangerous felony may only serve as a predicate to felony murder when the elements of any form of the predicate felony-looked at in the abstract-require a felonious purpose independent from the purpose of endangering the physical health of the victim"). See also Holley, 478 Mass. at 520, 87 N.E.3d 77 ; Christian, 430 Mass. at 556-557, 722 N.E.2d 416. We further emphasize that this analysis focuses on the intent or purpose underlying the predicate felony, irrespective of any assaultive element contained in that felony. See Christian, supra (armed robbery does not merge with killing because underlying purpose of armed robbery is to steal, which is independent of intent to harm victim); Commonwealth v. Wade, 428 Mass. 147, 153, 697 N.E.2d 541 (1998), S.C., 467 Mass. 496, 5 N.E.3d 816 (2014) and 475 Mass. 54, 55 N.E.3d 409 (2016) (aggravated rape does not merge with killing because underlying purpose of rape is independent of assault causing serious bodily injury and death). We examine the purpose of the underlying predicate felony, separate from any assaultive element, because it is the intent to commit the underlying felony, not the intent to commit an assault, that "serves as the substitute for the malice requirement of murder." Morin, 478 Mass. at 431, 85 N.E.3d 949, quoting Christian, supra at 556, 722 N.E.2d 416. See Commonwealth v. Prater, 431 Mass. 86, 96-97, 725 N.E.2d 233 (2000) ("The focus of the analysis is on the substitution of the intent, not on the number of assaults"). Accordingly, a felony with an independent purpose, despite containing an element of assault, is not capable of merging with the resulting killing. See Morin, supra. This analytical framework illustrates why we have long held that "rape, arson, robbery and burglary are sufficiently independent of the homicide, ... [but] aggravated battery toward the deceased will not do for felony murder" (citation omitted). Quigley, 391 Mass. at 466, 462 N.E.2d 92.

The felony of armed robbery, which this court has analyzed on several occasions, further elucidates the importance of analyzing the intent or purpose of the underlying felony to determine whether the merger doctrine is applicable. See Holley, 478 Mass. at 520, 87 N.E.3d 77 ; Morin, 478 Mass. at 430-431, 85 N.E.3d 949 ; Prater, 431 Mass. at 96-97, 725 N.E.2d 233 ; Christian, 430 Mass. at 556, 722 N.E.2d 416. We have concluded that the crime of armed robbery is independent of any killing that results in the course of the commission or attempted commission of that crime because "it is the intent to steal, rather than the intent to assault, which is substituted for malice[, and because] intent to steal does not cause a homicide, the armed robbery does not merge with the killing." Holley, supra. See Christian, supra (robbery is "[1] stealing or taking of personal property of another [2] by force and violence, or by assault and putting in fear," and "[r]obbery is enhanced to an armed robbery when a defendant is armed"). Even where a single act of violence not only completes the armed robbery but also causes the victim's death (e.g., a single gunshot), armed robbery does not merge with the killing because the intent or purpose underlying an armed robbery is the intent to steal, not to cause physical injury or death, regardless of the eventual outcome of that crime. See Christian, supra at 557, 722 N.E.2d 416. For this reason, "[w]e can envision no situation in which an armed robbery would not support a conviction of felony-murder." Id. at 556, 722 N.E.2d 416.

We do not deviate from analyzing the intent or purpose of the underlying felony where the crime at issue is an aggravated felony and the aggravating element embodies assaultive conduct. See Wade, 428 Mass. at 152-153, 697 N.E.2d 541 (rape enhanced to aggravated rape where committed during commission of kidnapping or otherwise resulted in serious bodily injury to victim). Although the aggravated form of a felony may enhance that crime to a life felony, the assaultive component "does not negate the intent to commit the [underlying felony] that is the substitute for the malice requirement of murder." Id. at 153, 697 N.E.2d 541. See Christian, 430 Mass. at 556, 722 N.E.2d 416 (although "[r]obbery is enhanced to an armed robbery when a defendant is armed," that does not change underlying purpose of felony, i.e., to steal). For example, in Wade, supra, the predicate felony was aggravated rape, where the pertinent aggravating factor was the infliction of serious bodily injury on the victim. We concluded that the crime of aggravated rape did not merge because it was the "intent to commit the rape, not the intent to inflict serious bodily harm, [that] was the substitute for the malice requirement of murder." Id. at 153, 697 N.E.2d 541. Although the victim died as a result of the serious bodily injury she sustained during the rape, we concluded that the crime of aggravated rape did not implicate the merger doctrine because the intent to rape was separate and distinct from the intent to cause physical injury or death. Id.

Thus, where a predicate offense has an independent felonious purpose separate and distinct from the intent to cause physical injury or death, the merger doctrine is inapplicable and the felony may serve as the predicate for felony murder.

b. Second inquiry: whether the conduct constituting the felony was separate from the conduct necessary to cause the homicide. If the underlying predicate felony does not have an independent felonious purpose, the court must then undertake a second step in the analysis, to determine whether the felony merges with the killing as a matter of fact. See, e.g., Kilburn, 438 Mass. at 359, 780 N.E.2d 1237 (armed assault in dwelling with intent to commit felony capable of merging with resulting killing).

Not all felonies lacking an independent felonious purpose necessarily merge with the resulting homicide. See id. at 358-360, 780 N.E.2d 1237. A felony does not merge with the killing if "the conduct which constitutes the felony [is] 'separate from the acts of personal violence which constitute a necessary part of the homicide itself.' " Gunter, 427 Mass. at 272, 692 N.E.2d 515, quoting Quigley, 391 Mass. at 466, 462 N.E.2d 92. Otherwise stated, the predicate felony does not merge if the assaultive conduct that constituted the felony was separate and distinct from the act of violence necessary to complete the killing. See Kilburn, 438 Mass. at 358-359, 780 N.E.2d 1237 (first instance of armed assault in dwelling completed before assault that killed victim). Because this is a fact-dependent inquiry, we review this portion of the analysis "on a case-by-case basis [and] with reference to specific facts." Id. at 359, 780 N.E.2d 1237, quoting Gunter, 427 Mass. at 275 n.15, 692 N.E.2d 515. See Commonwealth v. Scott, 472 Mass. 815, 820, 37 N.E.3d 1054 (2015), quoting Kilburn, supra at 359, 780 N.E.2d 1237 (second step of analysis "defies categorical analysis" and requires examination of particular facts of each case).

We have determined that armed assault in a dwelling, a crime without an independent felonious purpose from the intent to cause physical injury or death, may serve as the predicate for felony-murder so long as the conduct that constitutes the armed assault (the underlying felony) is separate and distinct from the conduct necessary to kill the victim. Kilburn, 438 Mass. at 358-359, 780 N.E.2d 1237. In the Kilburn case, the defendant, the shooter's coventurer, was convicted of murder in the first degree on a theory of felony-murder with armed assault in a dwelling as the predicate felony. Id. at 358, 780 N.E.2d 1237. We observed that there were two discrete assaults. The first assault occurred when one assailant opened the victim's apartment door, brandished a firearm, and pushed the victim backward into the apartment. Id."After a short interlude, during which the gunman ordered ... the victim about the apartment, the gunman shot the victim in the back of the head, thus violating [the armed assault in a dwelling statute] a second time." Id. We concluded that although the second assault (the fatal shooting) merged with the killing, the first did not because the first assault was completed when the gunman opened the door, brandished a firearm, and pushed the victim backward. Kilburn, supra at 358-359, 780 N.E.2d 1237. Because the first violation of the armed assault in a dwelling statute was accomplished by separate and distinct acts from the conduct necessary to cause the killing, the first assault did not merge with the killing and could serve as the predicate for felony-murder. Id. at 359, 780 N.E.2d 1237 (victim "died of a gunshot wound ; he did not die of fright"). Accord Commonwealth v. Scott, 472 Mass. at 823-825, 37 N.E.3d 1054 (no merger where assailant's struggle with victim at front door constituted first assault, and subsequent gunshot that killed victim was second independent assault). Contrast Commonwealth v. Stokes, 460 Mass. 311, 314 n.8, 951 N.E.2d 48 (2011) (armed home invasion could not serve as predicate felony because act of pointing gun at victim in course of shooting him was not sufficiently separate from shooting itself).

In sum, where the felony at issue does not have an independent purpose from the intent to cause bodily injury or death, the court must examine whether the act that constituted the felony is separate and distinct from the act causing the homicide. If the underlying felony was separate and distinct from the homicide, the felony does not merge and may serve as the predicate for felony-murder. In contrast, if the same act accomplished both the felony and the killing, the felony merges with the killing.

2. The motion for a new trial: whether aggravated kidnapping implicates the merger doctrine. In this case, the predicate crime of kidnapping required the Commonwealth to prove beyond a reasonable doubt that the defendant, "without lawful authority, forcibly or secretly confine[d] or imprison[ed] another person within this commonwealth against his will." G. L. c. 265, § 26, first par. Kidnapping itself is not a life felony, however, and thus could not have served as the predicate for a finding of felony-murder in the first degree. But kidnapping becomes aggravated kidnapping, which is a life felony, when the defendant commits the kidnapping, among other things, "while armed with a firearm, rifle, shotgun, machine gun or assault weapon," § 26, second par., or "while armed with a dangerous weapon and inflicts serious bodily injury thereby upon another person," § 26, third par. Neither form of aggravated kidnapping implicates merger because the "essential element of kidnapping is not the level of violence [or assaultive element] but rather the defendant's forcible or secret confinement or imprisonment of the victim against his will." Commonwealth v. Oberle, 476 Mass. 539, 548, 69 N.E.3d 993 (2017), quoting Commonwealth v. Robinson, 48 Mass. App. Ct. 329, 334, 720 N.E.2d 480 (1999). Given that the jury here were instructed only on aggravated kidnapping under the third paragraph of G. L. c. 265, § 26, the element that enhanced kidnapping to a life felony (being armed with a dangerous weapon and inflicting serious bodily injury) did not negate the intent to commit the kidnapping that is the substitute for the malice requirement of murder. The intent to commit the kidnapping (confining or imprisoning another person against his or her will), not the infliction of serious bodily injury, is what substituted for the malice requirement of murder. See Wade, 428 Mass. at 153, 697 N.E.2d 541. Because aggravated kidnapping involves an intent independent from the killing, neither form of aggravated kidnapping implicates the merger doctrine. Accordingly, the judge's order allowing the motion for new trial must be reversed.

3. Defendant's improper conviction of murder in the first degree on a theory of felony-murder based on aggravated kidnapping. As discussed supra, the Commonwealth relied on aggravated kidnapping as the predicate felony to support the defendant's conviction of murder in the first degree based on a theory of felony-murder. The Commonwealth proved aggravated kidnapping under G. L. c. 265, § 26, third par. (i.e., kidnapping "while armed with a dangerous weapon and inflict[ing] serious bodily injury thereby upon another person"), as the statute existed at the time of the defendant's trial in 2014. However, this theory of aggravated kidnapping ( G. L. c. 265, § 26, third par.) did not exist when the defendant committed the killing in 1994. An amendment in 1998 added what are now the second and third paragraphs of § 26. Compare G. L. c. 265, § 26, as amended through St. 1979, c. 465, § 1, with G. L. c. 265, § 26, as amended by St. 1998, c. 180, § 63. Thus, it was not until 1998 that either form of aggravated kidnapping discussed herein first appeared in the statute. G. L. c. 265, § 26, as amended by St. 1998, c. 180, § 63. Simply stated, the defendant's conviction of murder in the first degree was based on a predicate felony that did not exist when the killing took place in 1994. Kidnapping under G. L. c. 265, § 26, as it existed in 1994, could not serve as the predicate for a murder in the first degree conviction because kidnapping by itself, i.e., absent any aggravated form, was not then and is not now a life felony and carries a maximum sentence of only ten years in State prison. See Commonwealth v. Licciardi, 387 Mass. 670, 673 n.1, 443 N.E.2d 386 (1982) (analyzing substantially similar version of G. L. c. 265, § 26, predating inclusion of aggravated forms of kidnapping in second and third paragraphs of statute).

We raised this concern on our own initiative, while the Commonwealth's appeal from the order granting a new trial was under advisement, and we asked the parties to brief it. The Commonwealth concedes that the defendant's conviction of murder in the first degree cannot stand. The defendant's conviction is based on a predicate felony that did not exist when the defendant committed the killing in 1994. Since the defendant committed the crime in 1994, applying G. L. c. 265, § 26, third par., as it existed in 2014, would give ex post facto effect to the subsequent law. See Commonwealth v. Cory, 454 Mass. 559, 564, 911 N.E.2d 187 (2009), quoting Commonwealth v. Bargeron, 402 Mass. 589, 590, 524 N.E.2d 829 (1988) ("An ex post facto law is ... one that 'changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed' "). See also Johnson v. United States, 529 U.S. 694, 699, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) (challenged law must operate retroactively, i.e., it must apply to conduct completed before its enactment, and it must raise penalty from whatever law provided when defendant acted).

We also asked the parties to brief the question of how best to dispose of the matter if we were to conclude, as we now do, that the conviction of murder in the first degree cannot stand. After careful consideration of their suggestions, we conclude that the best course is to vacate the verdict of murder in the first degree at this time, as if we had discovered the issue in the course of considering the defendant's direct appeal pursuant to G. L. c. 278, § 33E. It makes little sense, and would require an unnecessary expenditure of time and resources, to wait for the direct appeal to be briefed and argued before we reach what the parties now agree is this inevitable result. We thus remand the case to the trial judge, who is in the best position to determine the appropriate next step. She may order the entry of a finding of a lesser degree of guilt, i.e., murder in the second degree based on the predicate felony of kidnapping as it existed at the time of the homicide, if the record supports it, or she may grant a new trial if that is necessary and appropriate in the circumstances. Neither side will be prejudiced by this approach. The defendant, who has not yet briefed his direct appeal in this court, will be able to pursue a direct appeal to the Appeals Court if the judge orders the entry of a verdict of murder in the second degree, and the Commonwealth may of course appeal to the Appeals Court if the judge orders a new trial.

Conclusion. The order granting a new trial on the basis of merger is reversed, and an order shall enter in the Superior Court denying the motion on that ground. Further, as discussed, we vacate the defendant's conviction of murder in the first degree, because it was predicated on a theory of aggravated kidnapping ( G. L. c. 265, § 26, third par.) that did not exist at the time of the homicide. We remand the case to the trial judge to determine whether a finding of murder in the second degree is supported by the record and should be entered, or whether a new trial is necessary and appropriate in these circumstances. The docket of the defendant's direct appeal in this court will be closed, and each side will be free to proceed in the Appeals Court with any appeal it may have from the judge's order on remand.

So ordered.

      The jury did not find the defendant guilty of murder in the first degree on a theory of deliberate premeditation.

      At our request, the parties submitted additional briefing concerning whether the merger doctrine is applicable to the predicate felony of aggravated kidnapping.

      At our request, the parties submitted additional briefing concerning whether this discrepancy constituted an ex post facto violation and, if so, what would be the appropriate disposition for the defendant's appeal.

      If the Superior Court judge determines that a new trial is warranted, we note that, as discussed in note 9, infra, Commonwealth v. Brown, 477 Mass. 805, 807, 81 N.E.3d 1173 (2017), eliminated felony-murder in the second degree as a theory of murder for cases tried after Brown was decided.

      Matteo Trotto and Elias Samia were tried separately and were both convicted. Their appeals are currently pending.

      Although the defendant was not charged separately with aggravated kidnapping, likely because the statute of limitations had expired, the Commonwealth relied on it as the predicate felony for the prosecution of murder in the first degree on a theory of felony-murder.

      The Commonwealth did not request an instruction on aggravated kidnapping under G. L. c. 265, § 26, second par., and such an instruction was not provided. In contrast to aggravated kidnapping under the third paragraph of G. L. c. 265, § 26, aggravated kidnapping under the second paragraph of G. L. c. 265, § 26, would have been required the Commonwealth to prove beyond a reasonable doubt only that the defendant committed a kidnapping "while armed with a firearm, rifle, shotgun, machine gun or assault weapon," or knowing that Elias Samia was so armed.

      The jury also were instructed on murder in the second degree as a lesser included offense of murder in the first degree committed by deliberate premeditation and felony-murder in the second degree as a lesser included offense of felony-murder in the first degree.

      After Brown, 477 Mass. at 807, 81 N.E.3d 1173, "felony-murder" serves only to enhance a murder occurring during the commission of a life felony to a murder in the first degree. Id. at 832, 81 N.E.3d 1173 (Gants, C.J., concurring). Although we need not decide whether this change renders the merger doctrine obsolete, Brown eliminated the perceived injustice of the felony-murder rule that the merger doctrine was designed to mitigate. Id. at 831, 81 N.E.3d 1173 (Gants, C.J., concurring). In Brown, we also observed that Michigan had already abolished the felony-murder rule under its common law. Id. at 833, 81 N.E.3d 1173 (Gants, C.J., concurring), citing Commonwealth v. Tejeda, 473 Mass. 269, 277 n.9, 41 N.E.3d 721 (2015) (discussing People v. Aaron, 409 Mich. 672, 727-729, 299 N.W.2d 304 [1980] ). We note that following the abolition of the felony-murder rule in Michigan, appellate courts in that State have rejected the claim that the merger doctrine is still applicable. See People v. Magyar, 250 Mich. App. 408, 411-412, 648 N.W.2d 215 (2002) ; People v. Jones, 209 Mich. App. 212, 214-215, 530 N.W.2d 128 (1995). We did not address this issue in Brown and we do not do so here because the merger doctrine is inapplicable to aggravated kidnapping.
      Were we to assume, without deciding, that the merger doctrine is generally obsolete after Brown, a vestige of the doctrine would nevertheless apply to certain cases. Where a murder occurred prior to our decision in Brown, but the defendant's trial were to begin after our decision in Brown, and the Commonwealth were to proceed on a theory of felony-murder where the predicate felony did not have an independent purpose from the intent to cause physical injury or death (e.g., armed assault in a dwelling), the jury should be instructed on the merger doctrine-i.e., that the conduct constituting the felony must be separate from the acts of personal violence necessary to commit the killing. A merger instruction in those circumstances would protect against possible disparate outcomes, e.g., if the case had been tried prior to our decision in Brown. If, after having been provided the merger instruction, the jury should conclude that the felony merged with the killing, the defendant could be found guilty of, at most, murder in the second degree (assuming there were no other theories of murder in the first degree presented by the Commonwealth). In those circumstances, the defendant could be found guilty only of murder in the second degree, but not on a felony-murder theory because Brown eliminated felony-murder in the second degree.

      Because the crime of aggravated kidnapping has an independent felonious purpose from the intent to cause physical injury or death, the merger doctrine is inapplicable and we need not proceed to the second inquiry.

      The Commonwealth did not proceed, and on these facts could not have proceeded, at trial on a theory that the defendant kidnapped the victim "with intent to extort money or other valuable[s]," which was an offense punishable by up to life imprisonment at the time the offense was committed, see G. L. c. 265, § 26, as amended through St. 1979, c. 465, § 1, and which was retained in the current version of the statute.


text:
    Mary SHIEL v. John ROWELL & another.
    SJC-12432
    Supreme Judicial Court of Massachusetts, Norfolk..
    Argued March 8, 2018. Decided July 16, 2018.
    William F. Spallina for the plaintiff.
    Daniel S. McInnis, Boston, for the defendants.
    Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

      Keli-Jo Rowell.

   CYPHER, J.

At the root of this case lies a distinctively neighborly type of dispute about who should have the responsibility for monitoring and cutting back an intruding tree. The defendants, Keli-Jo and John Rowell, own the property adjacent to the plaintiff, Mary Shiel. On the Rowells' property sits a one hundred foot tall sugar oak tree with branches reaching over Shiel's property. Shiel filed a complaint with claims of private nuisance and trespass against the Rowells after the tree allegedly caused algae buildup on the roof of Shiel's home and the Rowells refused to cut it down. Shiel sought money damages for the damage to her roof and an injunction demanding that the overhanging branches be cut back.

A District Court judge dismissed Shiel's claims as precluded by Ponte v. DaSilva, 388 Mass. 1008, 1008, 446 N.E.2d 77 (1983) (individual whose property is injured by neighbor's healthy tree has no cause of action against landowner of property upon which tree lies). The Appellate Division of the District Court affirmed, Shiel appealed, and we granted her application for direct appellate review. Shiel concedes that Ponte is controlling but asks that we overrule it and related cases. The Rowells urge us to ground our decision in stare decisis and not to disturb existing law. We affirm.

Discussion. 1. Massachusetts rule. The law in Massachusetts has long been that a landowner may not hold a neighbor liable for damage caused by that neighbor's healthy trees. See Ponte, 388 Mass. at 1008, 446 N.E.2d 77 ; Michalson v. Nutting, 275 Mass. 232, 232-233, 175 N.E. 490 (1931). See also Kurtigian v. Worcester, 348 Mass. 284, 290, 203 N.E.2d 692 (1965) (rule does not apply to unhealthy trees). In Michalson, supra at 232-233, 175 N.E. 490, roots from the defendants' poplar tree clogged the plaintiffs' sewer and drain pipes and cracked the plaintiffs' cement cellar, risking serious damage to the house's foundation. We concluded that the defendants could not be held liable for that damage because "an owner of land is at liberty to use his land, and all of it, to grow trees." Id. at 233, 175 N.E. 490, citing Bliss v. Ball, 99 Mass. 597, 598 (1868). We recognized that the plaintiffs had the right to cut off intruding boughs and roots and reasoned that "it is wiser to leave the individual to protect himself, if harm results to him from this exercise of another's right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden, of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious." Michalson, supra at 234, 175 N.E. 490.

We reaffirmed this rule in Ponte, where the plaintiff sought damages for personal injuries after slipping in her driveway, which was covered by debris from her neighbor's tree. Ponte, 388 Mass. at 1008, 446 N.E.2d 77 ("The failure of a landowner to prevent the blowing or dropping of leaves, branches, and sap from a healthy tree onto a neighbor's property is not unreasonable and cannot be the basis of a finding of negligence or private nuisance"). Landowners who are disturbed by their neighbor's trees are not without recourse. A property owner retains "the right to remove so much of the tree as overhangs his property." Id., citing Michalson, 275 Mass. at 233-234, 175 N.E. 490. This rule has come to be known as the "Massachusetts rule." See, e.g., Melnick v. C.S.X. Corp., 312 Md. 511, 520, 540 A.2d 1133 (1988).

2. Hawaii rule. Shiel urges us to adopt the so-called "Hawaii rule," which grants neighbors a right of action to resolve disputes in court over healthy trees. It allows a neighbor to require that the tree owner pay for damage and cut back branches and roots if the tree causes, or there is an imminent danger of it causing, sensible harm to the neighbor's property. Whitesell v. Houlton, 2 Haw. App. 365, 367, 632 P.2d 1077 (1981). The neighbor could not hold the tree owner liable for harm caused by the tree casting shade or dropping leaves, flowers, or fruit. Id. The Hawaii rule, like the Massachusetts rule, allows the neighbor to retain the right to cut back overhanging branches or intruding roots. Id.

Shiel contends that the Massachusetts rule is outdated and should be replaced by the Hawaii rule because today people are living in closer proximity to one another on smaller tracts of land than they were when the Massachusetts rule was adopted. She argues that trees today are more likely to cause damage to neighbors' property and tree owners are better able to manage their trees, which justifies giving parties a right of action to resolve disputes in court. The Rowells urge us not to disturb the Massachusetts rule, based on the doctrine of stare decisis and because, in their view, the Massachusetts rule is more sensible. They argue that there is no compelling reason to abandon the Massachusetts rule and that upholding precedent supports certainty in the law.

3. Stare decisis. The principle of stare decisis is not absolute. Stonehill College v. Massachusetts Comm'n Against Discrimination, 441 Mass. 549, 562, 808 N.E.2d 205, cert. denied, 543 U.S. 979, 125 S.Ct. 481, 160 L.Ed.2d 356 (2004). "Stare decisis is not, like the rule of res judicata, a universal inexorable command," but "[w]hether it shall be followed or departed from is a question entirely within the discretion of the court." Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-406, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting), quoting Hertz v. Woodman, 218 U.S. 205, 212, 30 S.Ct. 621, 54 L.Ed. 1001 (1910). However, adhering to precedent is our "preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). "It also reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation." Kimble v. Marvel Entertainment, LLC, --- U.S. ----, 135 S.Ct. 2401, 2409, 192 L.Ed.2d 463 (2015). "Parties should not be encouraged to seek reexamination of determined principles and speculate on a fluctuation of the law with every change in the expounders of it." Mabardy v. McHugh, 202 Mass. 148, 152, 88 N.E. 894 (1909). Reliance upon judicial precedent is of particular concern in "contract and property law cases, in which reliance upon existing judicial precedent often influences individual action." Halley v. Birbiglia, 390 Mass. 540, 545, 458 N.E.2d 710 (1983).

We may uproot precedent when "the values in so doing outweigh the values underlying stare decisis." Franklin v. Albert, 381 Mass. 611, 617, 411 N.E.2d 458 (1980). Overruling precedent requires something above and beyond mere disagreement with its analysis. Stonehill College, 441 Mass. at 588, 808 N.E.2d 205 (Sosman, J., concurring) ("Thus, in order to overrule a prior case, it is not enough that some or all of the Justices of this court have some intellectual or academic disagreement with the earlier analysis of the issue"). A lack of unforeseen problems caused by precedent justifies adhering to precedent unless there are developments that justify revisiting the law. Id. at 588-589, 808 N.E.2d 205 (Sosman, J., concurring) (we are "disinclined to fix something that is not broken").

We would discern a need to change the Massachusetts rule if it were outdated and no longer fit the circumstances of contemporary life. "One of the great virtues of the common law is its dynamic nature that makes it adaptable to the requirements of society at the time of its application in court." Lewis v. Lewis, 370 Mass. 619, 628, 351 N.E.2d 526 (1976), quoting State v. Culver, 23 N.J. 495, 505, 129 A.2d 715, cert. denied, 354 U.S. 925, 77 S.Ct. 1387, 1 L.Ed.2d 1441 (1957). We invite challenges to antiquated laws. "When the rationales which gave meaning and coherence to a judicially created rule are no longer vital, and the rule itself is not consonant with the needs of contemporary society, a court not only has the authority but also the duty to reexamine its precedents rather than to apply by rote an antiquated formula." Lewis, 370 Mass. at 620, 628, 351 N.E.2d 526 (abolishing interspousal tort immunity, which had developed when "common law treated husband and wife as 'a single person, represented by the husband' " [citation omitted] ). Our case law reflects our adaptability to fit such shifting needs, even with respect to real property, where the rules of stare decisis are particularly important. We once distinguished between types of visitors in premises liability law derived from English common law, but concluded that the distinction could no longer be "justified in an urban industrial society." Mounsey v. Ellard, 363 Mass. 693, 706-707, 297 N.E.2d 43 (1973) (establishing common duty of reasonable care owed to all lawful visitors). In the seven years following Mounsey, we reformed premises liability law to be consistent with this decision. See Papadopoulos v. Target Corp., 457 Mass. 368, 372, 930 N.E.2d 142 (2010), citing Young v. Garwacki, 380 Mass. 162, 166, 402 N.E.2d 1045 (1980).

4. Massachusetts rule is not outdated. We see no reason to consider the Massachusetts rule outdated. It may be true that people today are living in closer proximity to one another on smaller tracts of land than they were when the Massachusetts rule was adopted in the early Twentieth Century. But if changes in property ownership would lead us to believe that tree owners are now better able to monitor their trees, the same would be true for their neighbors to monitor and trim encroaching trees. It may be easier to recognize impending or potential harm to one's own property from overhanging branches and intruding roots than it would be for the tree owner to recognize what is happening next door. And even if it is also true that trees today are more likely to cause property damage to neighbors' property, it would be "undesirable to categorize living trees, plants, roots, or vines as a 'nuisance' to be abated." Melnick, 312 Md. at 520-521, 540 A.2d 1133.

Other jurisdictions have referenced the Massachusetts rule as being outdated. See Herring v. Lisbon Partners Credit Fund, Ltd. Partnership, 2012 ND 226, ¶¶ 19-20, 823 N.W.2d 493 ; Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 361 (Tenn. 2002) ; Fancher v. Fagella, 274 Va. 549, 555, 650 S.E.2d 519 (2007). A comprehensive analysis of the Massachusetts rule demands that we examine the rationale of other jurisdictions leading them to conclude our rule to be obsolete. A fair analysis of the parties' arguments also requires such an analysis because the plaintiff relied heavily on the analysis of other jurisdictions to support her argument and our review of these court opinions leaves our conclusion undisturbed. We agree that the traditional rule of nonliability, which preceded the Massachusetts rule, is outdated with respect to unhealthy trees. The law arose when land was so unsettled and uncultivated that the burden of inspecting it and putting it in a safe condition would have been unduly onerous and "out of all proportion to any harm likely to result." W.L. Prosser & W.P. Keeton, Torts § 57, at 354 (4th ed. 1971). The increased feasibility of inspecting for and resolving debilitated conditions on one's property removes the justification for a law that would discourage improvements to one's land. See, e.g., Young, 380 Mass. at 168, 402 N.E.2d 1045 (doing away with landlord-tenant liability law that discouraged repairs of rented premises). The same rationale does not apply to the Massachusetts rule, which pertains only to healthy trees. See Kurtigian, 348 Mass. at 290, 203 N.E.2d 692.

Shiel does not point to consequences of the Massachusetts rule that would not have been thoroughly appreciated by this court when Michalson and Ponte were decided. The growth of trees "naturally and reasonably will be accompanied by the extension of boughs and the penetration of roots over and into adjoining property of others." Michalson, 275 Mass. at 233, 175 N.E. 490. Our resolution has been and remains to authorize the cutting back of overhanging branches and intruding roots.

5. Benefits of Massachusetts rule. There are multiple benefits to the Massachusetts rule still relevant to circumstances of contemporary life. The rule simplifies assignment of responsibility. See Sterling v. Weinstein, 75 A.2d 144, 148 (D.C. 1950) (adopting Massachusetts rule because it leaves "no doubt as to the rights and obligations of the parties"). It also minimizes legal costs to parties and the unnecessary burdening of courts. Other courts have recognized as much. See, e.g., Richmond v. General Eng'g Enters. Co., 454 So.2d 16, 17 (Fla. Dist. App. Ct. 1984) ("It seems to us that the recognition of an action of this type to redress a claimed wrong which might otherwise be obviated by the time-honored remedy of self-help would represent a wasteful and needless use of the judicial system"). Furthermore, we were concerned in Michalson, 275 Mass. at 234, 175 N.E. 490, about vexatious lawsuits. The Massachusetts rule today, just as it did when Michalson was decided, may prevent unnecessary legal harassment from neighbors who merely have an axe to grind for reasons other than purported tree problems.

Conclusion. For these reasons, we decline to fell judicial precedent and instead reaffirm the Massachusetts rule established in Michalson and Ponte. We retain the law that an individual whose property is damaged by a neighbor's healthy tree has no cause of action against a landowner of the property upon which the tree lies. The District Court judge's order allowing the defendants' motion to dismiss is affirmed.

So ordered.

      The plaintiff, Mary Shiel, brings all claims against both defendants, so we refer to the defendants collectively as "the Rowells."

      The court in Whitesell v. Houlton, 2 Haw. App. 365, 632 P.2d 1077 (1981), did not define "sensible harm," and no Hawaii appellate court opinions have defined the phrase. The only definition of "sensible" in Black's Law Dictionary that could fit the context here is "[p]erceptible through the senses; appreciable." Black's Law Dictionary 1569 (10th ed. 2014).

      We recognize that this is a tort case, but also one that implicates property law.

      "If the plaintiff was an invitee, defined as a person invited onto the property by the property owner for the property owner's benefit, the property owner owed a duty to use reasonable care to keep the premises in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.... If the plaintiff was a licensee, defined as a person who entered onto the landowner's property for the licensee's own convenience and pleasure, the property owner owed a duty only to forbear from inflicting wilful or wanton injury on him.... If the plaintiff was a trespasser, the property owner's only duty was to refrain from wanton and wilful misconduct." (Emphases in original; quotations and citations omitted.) Papadopoulos v. Target Corp., 457 Mass. 368, 371-372, 930 N.E.2d 142 (2010).

      Some jurisdictions note that the Massachusetts rule "has been" criticized for being outdated, but do not explain how changes in property ownership justify disregarding the Massachusetts rule for that reason. See, e.g., Fancher v. Fagella, 274 Va. 549, 555, 650 S.E.2d 519 (2007) (adopting Hawaii rule after stating that "[t]he 'Massachusetts [r]ule' has been criticized on the ground that it is unsuited to modern urban and suburban life"). See also Herring v. Lisbon Partners Credit Fund, Ltd. Partnership, 2012 ND 226, ¶ 19, 823 N.W.2d 493, quoting Lane v. W.J. Curry & Sons, 92 S.W.3d 355, 361 (Tenn. 2002) (criticizing Massachusetts rule for being outdated). We trace this back to Lane, which incorrectly interpreted and quoted another jurisdiction as if it had criticized the Massachusetts rule for being outdated.6Lane, supra, citing Chandler v. Larson, 148 Ill. App. 3d 1032, 1036-1037, 102 Ill.Dec. 691, 500 N.E.2d 584 (1986) ("The Massachusetts Rule, however, has been criticized as being outdated, having evolved in an earlier time when land was mostly unsettled and people lived predominately in rural settings"). The criticism in Chandler was that the "traditional rule of nonliability," not the Massachusetts rule, was outdated, having "developed at a time when land was mostly unsettled and uncultivated." Chandler, supra at 1036, 102 Ill.Dec. 691, 500 N.E.2d 584, quoting Mahurin v. Lockhart, 71 Ill. App. 3d 691, 692, 28 Ill.Dec. 356, 390 N.E.2d 523 (1979). The traditional rule shielded property owners, out of necessity, from liability for defective or unsound trees. Chandler, supra, quoting Mahurin, supra at 692-693, 28 Ill.Dec. 356, 390 N.E.2d 523.

      Shiel challenges the unfairness of the Massachusetts rule and argues that it replaces the law of orderly judicial process with self-help as the only way to adjust the rights and responsibilities of disputing neighbors.