Commonwealth v. Traylor (Lawyers Weekly No. 10-126-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11788 COMMONWEALTH vs. MATTHEW TRAYLOR. Suffolk. February 3, 2015. – July 22, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Child Abuse. Assault and Battery. Reckless Endangerment of a Child. Constitutional Law, Double jeopardy. Practice, Criminal, Double jeopardy. Indictments found and returned in the Superior Court Department on September 12, 2008. The cases were tried before Elizabeth M. Fahey, J., and a motion to stay execution of sentence was heard in the Appeals Court by Francis R. Fecteau, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. David Hirsch for the defendant. Kevin J. Curtin, Assistant District Attorney (Elizabeth A. Dunigan, Assistant District Attorney with him) for the Commonwealth. LENK, J. After trial by jury, the defendant was convicted in the Superior Court of seven indictments charging offenses under G. L. c. 265, § 13J (b). That statute, in relevant part, imposes criminal penalties on a person who, “having care and custody of a child, wantonly or recklessly permits bodily injury [or substantial bodily injury] to such child or wantonly or recklessly permits another to commit an assault and battery upon such child, which assault and battery causes bodily injury [or substantial bodily injury].” Id. The seven separate indictments did not allege seven different instances on which the defendant wantonly or recklessly permitted bodily injury to a child, or seven different victims who were harmed as a result of the defendant’s conduct. Instead, the seven different indictments were each based on a distinct injury or set of injuries to the victim, Rory,[1] the defendant’s son, who was then approximately four months old. The defendant appealed, contending, inter alia, that the indictments were duplicative. Commonwealth v. Traylor, 86 Mass. App. Ct. 84, 86 (2014). The Appeals Court affirmed, id., and we granted the defendant’s application for further appellate review. We hold that, to establish multiple violations of G. L. c. 265, § 13J (b), the Commonwealth must prove either that the defendant engaged in separate and discrete instances of criminal conduct, or that multiple victims were harmed as a result of the defendant’s criminal conduct. The Commonwealth may not establish multiple convictions solely by showing multiple injuries to a single child. Accordingly, we reverse all but one of the defendant’s convictions. 1. […]