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SJC-11634

                  COMMONWEALTH   vs.   MAURICE BOLDEN.



       Hampden.       October 9, 2014. - December 17, 2014.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


Burglary. Breaking and Entering. Constitutional Law, Double
     jeopardy. Practice, Criminal, Double jeopardy, Duplicative
     convictions, Amendment of indictment or complaint,
     Postconviction relief.



     Indictments found and returned in the Superior Court
Department on July 15, 1993.

     A motion to correct illegal sentences, filed on February 7,
2011, was heard by Bertha D. Josephson, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     William W. Adams for the defendant.
     Dianne M. Dillon, Assistant District Attorney, for the
Commonwealth.


    CORDY, J.     In the summer of 1993, the defendant broke into

several homes in the Springfield metropolitan area, attacking

the inhabitants and carrying off their possessions.      At trial,
                                                                    2


he was convicted on seventeen indictments, including three

counts of aggravated burglary that form the basis of this

appeal.   Two of the three counts arose from the burglary of a

dwelling in Agawam involving two assaults therein (Agawam

indictments).   The third count arose from a break into a home in

Springfield and an assault on one of its inhabitants

(Springfield indictment).

    The convictions on those indictments were affirmed.     42

Mass. App. Ct. 1105 (1997).   The defendant filed in the Superior

Court a motion for postconviction relief seeking to correct

illegal sentences, contending that the two Agawam indictments

were duplicative and that an amendment to the Springfield

indictment as to the person assaulted rendered that conviction

unconstitutional, in violation of art. 12 of the Declaration of

Rights of the Massachusetts Constitution, under the rule of

Commonwealth v. Snow, 269 Mass. 598 (1930).   A judge denied the

motion; the Appeals Court affirmed the denial in a memorandum

and order pursuant to its rule 1:28, 84 Mass. App. Ct. 1106

(2013), and we granted the defendant's application for further

appellate review.

    With respect to the Agawam indictments, we agree with the

defendant that G. L c. 266, § 14 (§ 14), permits only one

burglary conviction per dwelling and that the conviction on the

duplicative indictment must be vacated.   With respect to the
                                                                   3


Springfield indictment, we conclude that because § 14 permits

only a single conviction per dwelling, a conviction on the

original Springfield indictment would have precluded a

conviction on the amended one.      Therefore, the name of the

person assaulted was not an essential element and the conviction

on the amended Springfield indictment did not violate the rule

set forth in the Snow case.      Accordingly, we reverse in part and

affirm in part the order denying the defendant's motion for

postconviction relief.

    1.     Background.    The following facts are drawn from

testimony before the grand jury and are supplemented by

testimony at trial.      In the middle of the night on June 29,

1993, the defendant opened the unlocked rear door to a house on

Winthrop Street in Springfield, entered the dwelling, pilfered a

key to a 1989 Mercury Merkur automobile parked in the driveway,

and -- while in the dwelling attempting to abscond with a

television -- was confronted by one of the occupants, Sandra

Goodrow.   The defendant struck Sandra in the head, fled the

dwelling, and escaped in the Merkur.      Carmella Goodrow, her

mother-in-law and owner of the dwelling, reported the break-in

and assault to the Springfield police.

    Late in the evening on July 2, 1993, the defendant drove

the Merkur to a street near the home of Stanley and Alice

Glogowski in Agawam.     The defendant walked up to their home,
                                                                   4


opened a rear door and entered the dwelling.   Stanley heard a

noise, commenced an investigation, and soon discovered a two-by-

four piece of lumber lying by the unlocked rear door.   After

locking the door, he retrieved the lumber and carried it down to

the cellar.   The defendant, lying in wait, confiscated the

lumber and struck Stanley in the head and back.

    Alice, on hearing the commotion, went to the top of the

cellar stairs, where she observed the defendant standing over

Stanley, who was unconscious and lying on the floor.    This

prompted her to shut the door to the cellar and place the weight

of her body against it.   The defendant forced the door open and

grabbed Alice, striking her in the face and sending her tumbling

down the stairs, before kicking open and escaping through the

rear door from which he had entered.   Stanley called the police,

who, on arrival, found the blood-spattered piece of lumber

impressed with the defendant's fingerprint.

    The defendant was apprehended by the Springfield police and

confessed to the break-ins.   A grand jury convened in Hampden

County and heard excerpts from the defendant's statement to the

police, as well as the testimony of a Springfield police officer

that:   "On 6/29/93 Carmello [sic] Goodrow of . . . Winthrop

Street reported that her home had been broken into and that

during the break the subject had slapped her across the head
                                                                   5


before fleeing the house . . . ."    The grand jury returned the

Springfield indictment, which provided, in pertinent part:

    "MAURICE BOLDEN . . . did break and enter the dwelling
    house in the nighttime of Carmella Goodrow . . . with
    intent therein to commit a felony, or after having entered
    with such intent, did break such dwelling house in the
    nighttime, the said Carmella Goodrow being then lawfully
    therein, and the said Maurice Bolden did make an actual
    assault on said Carmella Goodrow, a person lawfully
    therein."

The grand jury also returned the two Agawam indictments,

premising one on the armed assault of Stanley and the other on

the armed assault of Alice.

    Prior to trial, the Commonwealth filed a motion to amend

the Springfield indictment to change the name of the assault

victim from Carmella Goodrow to Sandra Goodrow.    The defendant

consented to the amendment, the judge allowed the motion, and

the indictment was duly amended.    The defendant was tried by

jury on the Springfield and Agawam indictments, each resulting

in judgments of conviction.   He was sentenced on the Agawam

indictments to two concurrent life terms in the State prison and

on the Springfield indictment to a minimum term of ten years in

the State prison.   The Appeals Court affirmed the convictions,

42 Mass. App. Ct. at 1105, and we denied the defendant's

application for further appellate review.

    The defendant filed a motion in the Superior Court pursuant

to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass. 1501
                                                                           6


(2001), seeking to correct certain illegal sentences, which

motion was denied as to the Springfield indictment (indictment

no. 93-1183) and Agawam indictments (indictment nos. 93-1181 and

93-1182).    The Appeals Court affirmed, 84 Mass. App. Ct. at

1106, and we initially denied the defendant's application for

further appellate review.      466 Mass. 1108 (2013).    On

reconsideration, however, we granted the application.           467 Mass.

1101 (2014).

    2.      Discussion.   a.   The Agawam indictments.   "Under the

double jeopardy clause of the Fifth Amendment to the United

States Constitution and Massachusetts common law, no person may

be convicted twice for the same offense."       Commonwealth v.

Horne, 466 Mass. 440, 449 (2013).      Where, as here, a defendant

is convicted twice under the same statute, we endeavor to

"examine the statute and ask what 'unit of prosecution' was

intended by the Legislature as the punishable act."           Id. at 449-

450, quoting Commonwealth v. Rabb, 431 Mass. 123, 128 (2000).

This inquiry is informed by the language and purpose of the

statute, as well as the rule of lenity, which requires us to

resolve any ambiguities in the defendant's favor.        Horne, supra

at 450.

    The crime of aggravated burglary is defined in G. L.

c. 266, § 14.    In identifying the intended unit of prosecution

for violations of § 14, we do not write on a pristine page.          The
                                                                    7


Appeals Court thoroughly analyzed this issue in Commonwealth v.

Gordon, 42 Mass. App. Ct. 601 (1997).    See Commonwealth v. Cruz,

430 Mass. 182, 196 (1999).   In that case, the defendant broke

and then entered a dwelling, threatening the lawful inhabitants

with a sawed-off shotgun.    Gordon, supra at 601-602.   The

Commonwealth obtained three convictions under § 14, each

premised on indictments that were identical apart from the names

of the assault victims.   As in the present case, the defendant

argued that the convictions were duplicative.    Id. at 602.

     The Appeals Court agreed, framing its analysis around the

two disjunctive clauses that comprise the first paragraph of

§ 14.1   Gordon, 42 Mass. App. Ct. at 603-605.   The first clause

embraces the predicate offense of common-law burglary, the

elements being met by one who (i) "breaks and enters a dwelling

house in the night time, with intent to commit a felony," or

(ii) "after having entered with such intent, breaks such

dwelling house in the night time."   G. L. c. 266, § 14; see

Commonwealth v. Hope, 22 Pick. 1, 4-5 (1839), quoting 1 Hale,

Pleas of the Crown 559 (1800) ("Lord Hale says . . . 'to make up

     1
       "Whoever breaks and enters a dwelling house in the night
time, with intent to commit a felony, or whoever, after having
entered with such intent, breaks such dwelling house in the
night time, any person being then lawfully therein, and the
offender being armed with a dangerous weapon at the time of such
breaking or entry, or so arming himself in such house, or making
an actual assault on a person lawfully therein, shall be
punished by imprisonment in the state prison for life or for any
term of not less than ten years." G. L. c. 266, § 14.
                                                                   8


burglary, it must not be only to break and enter a house in the

night time, but either a felony must be committed in the house,

or it must be to the intent to commit a felony'").2

     The second clause embraces the various methods by which

common-law burglary may be aggravated into a violation of § 14:

(i) "any person being then lawfully therein, and the offender

being armed with a dangerous weapon at the time of such breaking

or entry," or (ii) "so arming himself in such house," or (iii)

"making an actual assault on a person lawfully therein."   G. L.

c. 266, § 14.   The Appeals Court reasoned that " when viewed from

the perspective that the assault aggravates the burglary, there

can be only one conviction under G. L. c. 266, § 14, for armed

burglary, regardless of how many people the perpetrator assaults

once inside the dwelling."   Gordon, 42 Mass. App. Ct. at 605.

     The Commonwealth attempts to distinguish the Gordon case on

its facts, pointing out that the present case involved separate

     2
       Although deeply rooted in the common law, burglary has
been punished by statute in Massachusetts since at least 1642.
Commonwealth v. Hope, 22 Pick. 1, 9 (1839). At that time, the
General Court pronounced: "if any person shall commit Burglary:
by breaking up any dwelling house, . . . such person so
offending shall for the first offence, be branded on the
forehead, with the letter (B) And if he shall offend in the same
kind, the second time, he shall be branded as before & also be
severely whipped; and if he shall fall into the like offence,
the third time, he shall be put to death as being incorrigible."
General Laws of Massachusetts Colony, at 7 (1660), reprinted in
Colonial Laws of Massachusetts 1660-1672 (1889). The present
iteration, at G. L. c. 266, § 15, continues to track the common-
law elements of the crime, while scaling back the penal
consequences considerably.
                                                                    9


and discrete criminal acts underlying each conviction.    Indeed,

here, the defendant first broke into the dwelling and assaulted

Stanley; and then broke from the cellar into the interior of the

dwelling and assaulted Alice.   We think the Commonwealth draws a

distinction without a difference.

    The language of § 14 regarding an intruder who, "after

having entered with such intent [to commit a felony] breaks such

dwelling house in the night time," is clearly a reference to one

who first enters the home through an open door or window and

then commits a proper "break" once inside the dwelling.    This

alternate element tracks the traditional rule that one who

simply enters through the open door or window of a home commits

no burglary absent proof of some interior break.   See E. Coke,

The Third Part of the Institutes of the Laws of England 63-65

(E. and R. Brooke ed. 1797) ("So it is if the window of the

house be open, and a thiefe with a hook or other engine draweth

out some of the goods of the owner:   this is no burglary because

there is no actual breaking of the house").   See also State v.

Wilson, 1 N.J.L. 439, 441 (1793) ("If a man lifts up the latch

of an outward door, or if an outward door, being open, a thief

enters and unlatches or unlocks a chamber door, with a felonious

intent, in either case his act comes up to the idea affixed by

the law to the word breaking, so as to constitute the crime of

burglary").   Our review of the common law suggests that multiple
                                                                    10


breaks of a single dwelling did not create distinct, punishable

burglaries, but "were in law but one transaction."    People v.

Gibson, 25 N.W. 316, 317 (Mich. 1885).    Finding no intent by the

Legislature to depart from this precept, we conclude that once a

dwelling is "broken," any subsequent breaks occurring therein --

reasonably close in time and purpose -- are but a continuation

of the offense and thus insufficient to support separate

convictions under § 14.    See Commonwealth v. Burke, 392 Mass.

688, 690 (1984), quoting Commonwealth v. Knapp, 9 Pick. 495, 514

(1830) ("As has long been recognized, a statute should not be

interpreted as being at odds with the common law 'unless the

intent to alter it is clearly expressed'").    See generally

Horne, 466 Mass. at 450 (describing continuous offense

doctrine).

    Alternatively, the Commonwealth asks us to overrule the

Gordon case and adopt a victim-based unit of prosecution.      We

decline that invitation.   In addition to the historical accuracy

and commonsense appeal of the Gordon court's analysis, we are

persuaded by the Legislature's placement of § 14 in a chapter

devoted to "Crimes against Property."    That placement is in

contrast to the placement of the similar home invasion statute,

G. L. c. 265, § 18C (entering dwelling place armed and using

force or threatening same against any person therein), in a

chapter devoted to "Crimes against the Person."    See
                                                                   11


Commonwealth v. Levia, 385 Mass. 345, 348 (1982).    Whereas the

language and placement of the latter supports separate

prosecutions for each victim, the language and placement of the

former does not.    Compare Commonwealth v. Doucette, 430 Mass.

461, 471 (1999) (two counts of armed home invasion under G. L.

c. 265, § 18C, not duplicative of each other), with Gordon, 42

Mass. App. Ct. at 605.

     Once a person has broken and entered any part of the

dwelling, at night, and with intent to commit a felony therein,

the predicate offense of burglary as to that dwelling is

complete.3   Because arming oneself with a dangerous weapon and

assaulting the inhabitants of that dwelling merely aggravate

that singular predicate offense, the Commonwealth may not

aggregate such actions into multiple units of prosecution under

§ 14.    See Commonwealth v. Hogan, 249 Mass. 555, 564 (1924)

("The offence is an offence which may be committed in either of

the acts charged, and whether singly or together subjects the

defendant on conviction to one punishment").    Notwithstanding

this limitation, the Commonwealth was free to -- and, in fact,

did -- prosecute the defendant for other crimes committed

     3
       We need not address the question posed by the defendant
whether breaking out for purposes of escape is sufficient to
constitute the "break" required under G. L. c. 266, § 14. The
Commonwealth does not allege such a construction, nor is such a
construction necessary to the Commonwealth's case. The evidence
is ample that the defendant committed the required break by
opening the rear door to the dwelling and thereupon entering it.
                                                                  12


against the inhabitants of the dwelling.   See, e.g., G. L.

c. 265, § 18 (a) (armed assault of person sixty years of age or

older with intent to rob).

     There is no question that, on the evening of July 2, 1993,

the defendant committed the predicate offense of burglary in

Agawam; nor is there any question that the defendant aggravated

that offense by arming himself with a dangerous weapon and

assaulting the lawful inhabitants of the burgled dwelling.

However, the defendant cannot stand twice convicted for this

singular violation of § 14.4   Because each conviction carried

identical, concurrent life sentences, there is little profit in

a remand.   Contrast Commonwealth v. Rivas, 466 Mass. 184, 190-

192 & n.9 (2013).   The judgment of conviction on indictment no.

93-1182 is vacated, the verdict is set aside, and the indictment

is dismissed.


     4
       We also reject the Commonwealth's direct estoppel and
waiver arguments. The defendant raised the duplicative
conviction issue in his direct appeal and was entitled to the
benefit of the decision in Commonwealth v. Gordon, 42 Mass. App.
Ct. 601 (1997), which was issued during the pendency of his
initial application for further appellate review. To the extent
the defendant failed to raise this argument in his initial
motions for postconviction relief, we review for a substantial
risk of a miscarriage of justice. Commonwealth v. Azar, 435
Mass. 675, 675-676 (2002), S.C., 444 Mass. 72 (2005). It is
well established that duplicative convictions pose such a risk,
even where the punishments are imposed concurrently.
Commonwealth v. Jones, 382 Mass. 387, 395-396 (1981).
Accordingly, there is no procedural bar to the relief sought by
the defendant. See Commonwealth v. Stewart, 375 Mass. 380, 393
(1978); Gallinaro v. Commonwealth, 362 Mass. 728, 737 (1973).
                                                                13


     b.   The Springfield indictment.   The defendant next

challenges the amendment of the Springfield indictment,

hearkening back to our pronouncement in the case of Commonwealth

v. Blood, 4 Gray 31, 32 (1855):

     "Nothing can be more clear than the duty of the
     Commonwealth to prove the identity of the offence charged
     in a complaint or indictment, with that on which it seeks
     to convict the party charged before the jury of trials.
     The fundamental principles of our government require this
     as an essential safeguard to the rights and liberty of the
     citizen. If it were not so, the constitutional privilege
     of a party, before he is held to answer to an offence, to
     have it 'fully and plainly, substantially and formally
     described to him,' and to be secure from arrest until 'the
     cause or foundation of the warrant be previously supported
     by oath or affirmation,' might be violated at the pleasure
     of prosecutors."

We think that the concerns articulated in the Blood case, since

refined through the development of our statutory and common law,

have been satisfied in this case.

     One of those refinements occurred by way of the

Legislature's enactment of St. 1926, c. 227, providing that:

"Upon motion of the district attorney or prosecuting officer,

the court may order the complaint or indictment amended in

relation to allegations or particulars as to which the defendant

would not be prejudiced in his defence."5   The breadth and



     5
       The substance of this statute, codified at G. L. c. 277,
§ 35A, and repealed by St. 1979, c. 344, § 35, now applies in
broader terms by way of Mass. R. Crim. P. 4 (d), 378 Mass. 849
(1979): "Upon his own motion or the written motion of either
party, a judge may allow amendment of the form of a complaint or
                                                                   14


constitutionality of this enactment were tested in Commonwealth

v. Snow, 269 Mass. 598 (1930), a case on which the defendant

leans heavily.

       The crime charged in the Snow case was extortion, carried

out by a threat against the person and property of one Nora

Downs.   Id. at 599.   The question posed was whether the grand

jury's indictment could be modified, consistent with art. 12, to

premise the extortion on a threat against the safety of Nora

Downs's child.   Snow, 269 Mass. at 604-605.   We observed that an

indictment may be properly amended only in "matters of form and

those not essential to the description of the crime charged."

Id. at 606.   The materiality of the amendment, in turn, depended

on "whether judgment of conviction or acquittal on the

indictment as drawn would be a bar to a new indictment drawn in

the form in which it stood after the amendment."    Id. at 609-

610.   Concluding that a judgment on the original indictment

would not have raised such a bar, we reversed the allowance of

the amendment.   Id. at 610.

       Although we agree that the Snow case is controlling here,

that will be cold comfort to the defendant.    As we explain

today, § 14 may support only one conviction per burglary.

Applying the test set forth in the Snow case, it is plain that a



indictment if such amendment would not prejudice the defendant
or the Commonwealth."
                                                                   15


judgment of conviction on the indictment as originally drawn

would bar a new indictment drawn in its amended form, as each

indictment was premised on the same burglary.    The name of the

assault victim was, therefore, not an essential element to the

crime charged in this case.    It follows, therefore, that the

change was one of form rather than substance, and we detect no

constitutional error in the conviction on the amended

Springfield indictment.6

     Absent such constitutional concerns, a judge may amend an

indictment on the motion of the Commonwealth so long as it does

not prejudice the defendant.    Mass. R. Crim. P. 4 (d), 378 Mass.

849 (1979).   Here, in light of the defendant's statement to the

police and his consent to the pretrial amendment, he suffered no

prejudice.    Commonwealth v. Miranda, 441 Mass. 783, 789-790

(2004) (no prejudice where defendant was fully informed of


     6
       The amendment did not materially change the work of the
grand jury. See Commonwealth v. Benjamin, 358 Mass. 672, 679-
680 (1971). Properly contextualized, the reasonable inference
flowing from the grand jury testimony was that the defendant
struck the woman he encountered, who, regardless of the name
ascribed to her, appeared to be a lawful inhabitant of the
dwelling. Where, as here, the amended indictment charges the
same crime as the original indictment, and the crime described
to both the grand jury and the trial jury is the same in all
material respects, there is no interference with the art. 12
guaranty to an indictment by grand jury. See, e.g.,
Commonwealth v. Roby, 462 Mass. 398, 405 (2012) (nonmaterial
variance based on trial evidence "did not materially change the
work of the grand jury"); Campagna v. Commonwealth, 454 Mass.
1006, 1008 (2009) ("there is no confusion about the conduct
underlying the indictments").
                                                                  16


nature of charge and assented to amendment).   Accordingly, the

Commonwealth's motion was properly allowed and the defendant is

not entitled to relief from the judgment of conviction on

indictment no. 93-1183.

    3.   Conclusion.   The order denying the defendant's motion

to correct illegal sentences is affirmed as to indictment nos.

93-1181 and 93-1183, and reversed as to indictment no. 93-1182.

                                    So ordered.
