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Commonwealth v. Pileeki11/29/2004
like Commonwealth v. Morin, 52 Mass. App. Ct. at 787, the case on which the defendant chiefly relies. The notion that two offenses, while not greater and lesser crimes by reference to a pure elements-based test, but which are nonetheless "so closely related in fact as to constitute in substance but a single crime," first arose in dicta in Commonwealth v. St. Pierre, 377 Mass. at 663. As noted above, this phrase was quickly coopted by cases focusing on the question whether a stream of related criminal conduct could be divided into separate and independent acts. This is the context in which that standard now is properly employed.
However, in its original context in St. Pierre, supra, as the cases cited there make plain, the phrase was intended to capture situations in which two offenses with small, technical differences in their statutory elements might nonetheless be deemed cognate crimes. In Costarelli v. Commonwealth, 374 Mass. 677, 684 (1978), for example, the court concluded that use without authority is included within larceny of a motor vehicle, despite the fact that the latter does not require evidence of use on a public way. It was enough for the court that all of the elements ordinarily in issue where unauthorized use is charged are likewise elements of larceny of a motor vehicle. Ibid. A similar approach was adopted by the Supreme Judicial Court in Commonwealth v. Walker, 426 Mass. 301, 304-305 (1997). In Walker, the Supreme Judicial Court considered whether G. L. c. 265, § 13B, indecent assault and battery of a child under fourteen years of age, could be considered a lesser included offense of G. L. c. 265, § 22A, forcible rape of a child under sixteen years of age, in view of the disparity in the age thresholds. While conceding that the case presented a close question, the court ultimately concluded that the two offenses were, in fact, cognate crimes, at least where a victim, in fact, was aged less than fourteen years. Id. at 306.
This form of analysis, a minor departure from a strictly mechanical approach to the elements-based test for defining cognate crimes, nonetheless still examines "the elements of the crimes charged . . . objectively, abstracted from the facts." Commonwealth v. Jones, 441 Mass. at 76 quoting from Commonwealth v. Jones, 59 Mass. App. Ct. 157, 162 (2003). However, to the extent that St. Pierre's "so closely related in fact as to constitute in substance but a single crime" test is now commonly used in cases where conduct is relevant (that is, where cognate crimes are charged), it is perhaps easy to conflate the two applications of this standard -- its original meaning in St. Pierre and its current use in "separate acts" analysis -- and mistakenly arrive at the conclusion that (a) the elements-based test is subject to exceptions, and (b) conduct is relevant to determining whether such an exception applies in a particular case. That, however, is not the law.
Another potential source of confusion is the fact that some decisions take a belt-and-suspenders approach to rebutting claims of duplicative convictions; that is to say, they consider both whether the crimes charged are cognate offenses and whether the offenses may be pegged to separate acts. This provides additional emphasis in situations where either approach will provide a basis for affirmance. Typical of this category is Commonwealth v. Wolinski, 431 Mass. 228, 238-239 (2000). In Wolinski, the defendant was charged with assault and battery by means of a dangerous weapon and armed robbery. First, the court engaged in a strict elements-based review of the two offenses and concluded that the convictions were not duplicative "because each crime required proof of a fact that the other did not." Id. at 23
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