Appeals – G.L.c. 211, §3

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Where a petitioner whose motion to dismiss indictments on double jeopardy and collateral estoppel grounds was denied sought extraordinary relief pursuant to G.L.c. 211, §3, his request for relief is premature, so a single justice’s decision to deny the petition should be affirmed.

“The petitioner, Lance Hullum, appeals from a judgment of the county court denying his petition for extraordinary relief pursuant to G.L.c. 211, §3. …

“In 2014, Hullum was indicted on various aggravated assault charges stemming from an incident in which he allegedly attacked multiple individuals, including Raymond Girard and Richard Saunders. With respect to the attack on Girard, Hullum was charged with armed assault with intent to murder a victim sixty years or older, in violation of G.L.c. 265, §18(a) (indictment three); assault and battery by means of a dangerous weapon on a victim sixty years or older, in violation of G.L.c. 265, §15A(a) (indictment five); and assault with intent to maim, in violation of G.L.c. 265, §15 (indictment seven). Hullum faced similar charges with respect to the attack on Saunders.

“Hullum was tried, pro se, before a jury in the Superior Court in Plymouth County. At the conclusion of trial, with respect to the charges of armed assault with intent to murder (indictments three and nine), the jury found Hullum guilty of the lesser included offense of assault. The jury returned guilty verdicts on the remaining indictments.

“On direct appeal, the Appeals Court concluded that Hullum did not validly waive his right to counsel. As a result, on all but one of the charges, the verdicts were set aside and the matter was remanded for a new trial. … On remand, Hullum moved to dismiss the surviving indictments on the grounds of double jeopardy and collateral estoppel. With respect to indictments three and nine, for which Hullum had been convicted of the lesser included offenses of assault, the motion judge concluded that Hullum could not be retried on the underlying, greater offense, but denied his motions to dismiss.

“Hullum then filed the instant petition in the county court, seeking relief from the denial of the motions to dismiss. The single justice determined that review of the merits was appropriate, … but concluded that the motions to dismiss had been properly denied. …

“… Here, the verdicts on indictments three and nine, in which the jury found Hullum guilty of the lesser included offenses of assault, necessarily implied that the jury acquitted Hullum of the greater offenses of armed assault with intent to murder a victim sixty years or older (as to Girard) and armed assault with intent to murder (as to Saunders). … Accordingly, the motion judge correctly ruled, and the single justice correctly recognized, that the Commonwealth may only retry Hullum on the lesser included offense of simple assault on indictments three and nine. Hullum nonetheless argues that the lesser assault charges, as well as the charges for assault and battery by means of a dangerous weapon, must be dismissed because they are lesser included offenses of armed assault with intent to maim, and stem from the same course of conduct.

“As a general matter, absent legislative authorization, a defendant may not be convicted of both a greater and lesser included offense in a single criminal proceeding unless ‘each conviction is premised on a distinct criminal act.’ … If a jury does return verdicts that are duplicative, vacatur of one of the convictions is appropriate, and ‘the determination as to which conviction to vacate lies with the sentencing judge.’ Commonwealth v. Rivas, 466 Mass. 184, 190–191 (2013). Here, however, Hullum has yet to be retried, let alone convicted, on the pending indictments. Thus, even assuming, arguendo, that any of the indictments are duplicative, his request for relief is premature. … Accordingly, the single justice did not commit an error of law or otherwise abuse her discretion in denying relief.”

Hullum v. Commonwealth (Lawyers Weekly No. 10-112-24) (4 pages) (Rescript) Rachel T. Rose for the petitioner; Elizabeth A. Mello Marvel for the commonwealth (Docket No. SJC-13453) (Oct. 2, 2024).

Click here to read the full text of the opinion.