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SJC-12066
COMMONWEALTH vs. RANDY A. LeBLANC.
Franklin. September 8, 2016. - October 28, 2016.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.
Motor Vehicle, Leaving scene of accident. Statute,
Construction.
Complaint received and sworn to in the Orange Division of
the District Court Department on May 3, 2013.
The case was heard by David S. Ross, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Leslie H. Powers for the defendant.
Thomas H. Townsend, Assistant District Attorney, for the
Commonwealth.
BUDD, J. Following a jury-waived trial in the Orange
Division of the District Court Department in March, 2014, the
defendant, Randy A. LeBlanc, was found guilty of knowingly
causing damage to another automobile in a private driveway and
2
leaving without identifying himself to the owner under G. L.
c. 90, § 24 (2) (a).1 He appealed, and the Appeals Court
affirmed the conviction in a memorandum and order issued
pursuant to its rule 1:28. Commonwealth v. LeBlanc, 88 Mass.
App. Ct. 1112 (2015). We granted further appellate review to
determine whether the prohibition set forth in § 24 (2) (a)
against leaving the scene after causing property damage without
providing identification includes as an element of the crime
that the accident causing the damage occurred on a public way.2
We conclude that it does not and affirm the defendant's
conviction.
Background. The trial evidence would permit the following
facts to be found. In February, 2013, a friend of the defendant
telephoned him to ask for a ride to a nearby convenience store.
The defendant arrived in his pickup truck at the home where the
friend was staying and pulled into the driveway where the
homeowner's Chevrolet Cavalier automobile was already parked.
The friend entered the truck and the two men left. Upon their
return, the defendant backed his truck into the driveway. When
the friend got out of the truck, he noticed that the Cavalier's
1
The Commonwealth filed a nolle prosequi with respect to a
charge of operating a vehicle without insurance under G. L.
c. 90, § 34J.
2
The defendant raised the "public way" argument for the
first time on appeal after the Appeals Court panel requested
supplemental briefing on this issue.
3
hood was "pushed up" and that it had been pushed back into a
trailer. The friend waved his arms to signal to the defendant,
but the defendant "just left." The defendant later admitted to
the friend and to an investigating police officer that he had
accidentally hit the Cavalier.
Discussion. 1. Statutory interpretation. We begin with
the plain language of the statute. International Fid. Ins. Co.
v. Wilson, 387 Mass. 841, 853 (1983). Clear and unambiguous
language is conclusive as to legislative intent. Commissioner
of Correction v. Superior Court Dep't of the Trial Court for the
County of Worcester, 446 Mass. 123, 124 (2006). General Laws
c. 90, § 24 (2) (a), provides in part:
"[1] Whoever upon any way or in any place to which the
public has a right of access, or any place to which members
of the public have access as invitees or licensees,
operates a motor vehicle recklessly, or operates such a
vehicle negligently so that the lives or safety of the
public might be endangered, or upon a bet or wager or in a
race, or [2] whoever operates a motor vehicle for the
purpose of making a record and thereby violates any
provision of [G. L. c. 90, § 17,] or any regulation under
[G. L. c. 90, § 18], or [3] whoever without stopping and
making known his name, residence and the register number of
his motor vehicle goes away after knowingly colliding with
or otherwise causing injury to any other vehicle or
property, or [4] whoever loans or knowingly permits his
license or learner's permit to operate motor vehicles to be
used by any person, or [5] whoever makes false statements
in an application for such a license or learner's permit,
or [6] whoever knowingly makes any false statement in an
application for registration of a motor vehicle or [7]
whoever while operating a motor vehicle in violation of
[G. L. c. 90, §] 8M, 12A or 13B, such violation proved
beyond a reasonable doubt, is the proximate cause of injury
to any other person, vehicle or property by operating said
4
motor vehicle negligently so that the lives or safety of
the public might be endangered, shall be punished by a fine
of not less than twenty dollars nor more than [$200] or by
imprisonment for not less than two weeks nor more than two
years, or both; and [8] whoever uses a motor vehicle
without authority knowing that such use is unauthorized
shall, for the first offense be punished . . ." (bracketed
numbers and emphases added).
Here, the statute comprises several self-contained
"whoever" clauses.3 The language referring to a "public way" is
found in the first clause, making it unlawful to "recklessly,
. . . negligently[,] . . . or upon a bet or a wager or in a
race" operate a motor vehicle "upon any way or in any place to
which the public has a right of access." G. L. c. 90, § 24 (2)
(a). The "public way" language4 is not found in any of the
remaining "whoever" clauses. It, thus, modifies only the first
"whoever" pronoun. See The Chicago Manual of Style § 5.175 at
248 (16th ed. 2010) ("If a prepositional phrase equally modifies
all the elements of a compound construction, the phrase follows
the last element in the compound"). See also Rowley v.
Massachusetts Elec. Co., 438 Mass. 798, 802 (2003) (court uses
standard rules of grammar when interpreting statutory language).
3
The parties agree that the only language at issue is that
found before the section's first semicolon (located at the end
of the seventh clause).
4
Our discussion uses the shorthand "public way," "public
way element," or "public way predicate" to refer to the
following text found in the first clause of G. L. c. 90, § 24
(2) (a): "any way or in any place to which the public has a
right of access, or any place to which members of the public
have access as invitees or licensees."
5
The use of the phrase "or whoever" to create discrete clauses,
each with its own prohibitions, indicates that the clauses
"stand on their own grammatical feet" (citation omitted), Carter
v. United States, 530 U.S. 255, 273 (2000) (statute's discrete
prohibitions and their elements were separated by pronoun
"whoever"). Therefore, based on a plain reading of the statute,
the "public way" language does not attach to any clause except
the first. See United States Nat'l Bank of Oregon v.
Independent Ins. Agents of Am., Inc., 508 U.S. 439, 454 (1993)
("the meaning of a statute will typically heed the commands of
its punctuation").
The defendant argues that the public way element is
necessary to make sense not only of the clause at issue but
others as well. For instance, he points to the seventh clause
which refers to "operating a motor vehicle in violation of
[G. L. c. 90, §] . . . 12A." G. L. c. 90, § 24 (2) (a).
General laws, c. 90, § 12A, bans the use of cellular telephones
while operating public transportation vehicles. The defendant
asserts that the public way element must apply to this clause
because it would be unreasonable to prosecute a school bus
driver who is using her cellular telephone while driving the bus
in a private bus yard. In fact, because school buses generally
transport children, public safety is at least one good reason
6
for prohibiting this activity whether it occurs on public or
private property.
Contrary to the defendant's claims, none of the "whoever"
clauses following the first requires the public way predicate in
order to make sense. Indeed, adding a public way element to the
fifth and sixth clauses, which prohibit making "false
statements" in an application for a driver's license, learner's
permit, or motor vehicle registration, would be illogical. See
Lowery v. Klemm, 446 Mass. 572, 578-579 (2006) ("we will not
adopt a construction of a statute that creates 'absurd or
unreasonable' consequences" [citation omitted]).
The defendant also argues that if the public way element is
not applicable to the crime of leaving the scene of a motor
vehicle accident after causing property damage, G. L. c. 90,
§ 24 (2) (a), would be inconsistent with G. L. c. 90, § 24 (2)
(a 1/2), which prohibits leaving the scene of a motor vehicle
accident after causing personal injury and contains a public way
predicate.5 The result is that a driver can be convicted of
5
General Laws c. 90, § 24 (2) (a 1/2), provides in relevant
part:
"(1) Whoever operates a motor vehicle upon any way or
in any place to which the public has right of access, or
upon any way or in any place to which members of the public
shall have access as invitees or licensees, and without
stopping and making known his name, residence and the
registration number of his motor vehicle, goes away after
knowingly colliding with or otherwise causing injury to any
7
leaving the scene of an accident causing property damage
regardless of whether it occurred on a public or private way,
but can only be convicted of leaving the scene of an accident
causing personal injury if the accident occurred on a public
way. Although the two statutory provisions may appear
inconsistent, we cannot read language into a statute that is not
there.6 "[I]t is the function of the judiciary to apply [the
statutory language], not amend it." Commissioner of Revenue v.
Cargill, Inc., 429 Mass. 79, 82 (1999).
2. Rule of lenity. The defendant argues in the
alternative that § 24 (2) (a) is ambiguous and we therefore
should apply the rule of lenity in construing it. See
Commonwealth v. Constantino, 443 Mass. 521, 525 (2005) (if
person not resulting in the death of any person, shall be
punished by imprisonment for not less than six months nor
more than two years and by a fine of not less than [$500]
nor more than [$1,000]" (emphasis added).
6
A review of the legislative history of G. L. c. 90, § 24
(2) (a) and (a 1/2), shows that these two provisions have always
presented this dichotomy. That is, the property damage
provision has always appeared in § 24 (2) (a) as one of several
clauses demarcated by "or whoever" but has never included the
public way predicate that appears in the first clause. See,
e.g., St. 1908, c. 648, § 7, amending St. 1906, c. 412, § 4;
G. L. c. 90, § 24 (1927); G. L. c. 90, § 24 (1932); G. L. c. 90,
§ 24 (2) (a) (1990). By contrast, the personal injury
provision, which in 1991 became a separate section, § 24 (2) (a
1/2), has always included a public way predicate. See St. 1991,
§ 2. If nothing else, the history of the personal injury clause
demonstrates that when the Legislature intends to include a
public way predicate in § 24 (2) (a) beyond the first clause, it
knows how to do so.
8
criminal statute found to be ambiguous, defendant should be
given benefit of ambiguity).
To support this argument the defendant partly relies on
Commonwealth v. Platt, 440 Mass. 396, 400 n.5 (2003), where this
court mistakenly stated in a footnote that the crime of leaving
the scene of an accident involving property damage includes a
public way element as one of five distinct elements of the
crime. We acknowledge that this likely caused some confusion,
as reflected in a number of Appeals Court decisions following
Platt, and in the District Court's model jury instructions.7
However, the existence, or not, of a public way predicate as an
element of the crime was not raised as an issue in the Platt
case, and its inclusion in the listed elements of the crime was
dictum. Unlike in Platt, the issue is squarely before us today,
and we here seek to clear up the confusion. As discussed above,
the plain language of the portion of G. L. c. 90, § 24 (2) (a),
under which the defendant was convicted does not contain a
public way element. The statute is unambiguous; the rule of
lenity does not apply.
Judgment affirmed.
7
See Commonwealth v. Henderson (No. 1), 89 Mass. App. Ct.
205, 207 (2016); Commonwealth v. Martinez, 87 Mass. App. Ct.
582, 584 (2015); Commonwealth v. Velasquez, 76 Mass. App. Ct.
697, 698-699 (2010); Criminal Model Jury Instructions for Use in
the District Court 5.180 (rev. 2016).
GANTS, C.J. (concurring, with whom Lenk, J., joins). I
agree entirely with the court that, under G. L. c. 90, § 24 (2)
(a), regardless of whether the accident occurred on a public way
or on private property, it is a crime for the driver of a motor
vehicle, "after knowingly colliding with or otherwise causing
injury to any other vehicle or property," to leave the scene of
the accident without "stopping and making known his name,
residence, and the register number of his motor vehicle." I
write separately only to invite the Legislature to consider
whether it should revise G. L. c. 90, § 24 (2) (a 1/2) (1) and
(2), to eliminate the public way element in those provisions and
harmonize them with § 24 (2) (a).
As the law stands now, if the operator of a motor vehicle
drives onto someone's front yard and collides with a fence, the
operator violates § 24 (2) (a) if he or she fails to stop and
identify himself or herself. But if the same operator drives
onto someone's front yard and strikes a person, injuring or
killing that person, the operator does not violate § 24 (2) (a
1/2) (1) or (2) if he or she leaves the scene without stopping
to identify himself or herself, because each of these provisions
includes the required element that the operation of the motor
vehicle occur "upon any way or in any place to which the public
has a right of access." I can discern no rational basis for
requiring that public way element where death or injury results
2
from the accident, but not requiring it where only property
damage results from the accident. Nor can I discern any reason
why the law would allow a driver who has injured or killed a
person with his or her motor vehicle on private property to
leave the scene of an accident without identifying himself or
herself. The need for identification is the same regardless of
whether the accident occurs on a public way or on private
property.