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SJC-11879
COMMONWEALTH vs. KENNETH DYKENS.
Middlesex. October 5, 2015. - February 17, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Attempt. Burglary. Burglarious Implements. Practice,
Criminal, Plea, Postconviction relief, Duplicative
convictions, Double jeopardy, Indictment.
Indictments found and returned in the Superior Court
Department on March 31, 2005.
A motion to withdraw a plea and vacate convictions, filed
on October 11, 2013, was heard by Peter M. Lauriat, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Timothy St. Lawrence for the defendant.
Hallie White Speight, Assistant District Attorney, for the
Commonwealth.
CORDY, J. This case is before us following the denial by a
Superior Court judge of Kenneth Dykens's motion to vacate
several convictions resulting from his guilty pleas in
2
connection with a February, 2005, arrest for attempted burglary
and other offenses. See Mass. R. Crim. P. 30 (a), as appearing
in 435 Mass. 1501 (2001). Specifically, he seeks to vacate two
of his three convictions of attempted unarmed burglary in
violation of G. L. c. 274, § 6, contending they are duplicative
of his conviction on the third, and thus barred under principles
of double jeopardy. He also seeks to vacate his conviction of
possession of a burglarious tool or implement (a rock) in
violation of G. L. c. 266, § 49, on the ground that the
indictment failed to state a crime, and the Superior Court
therefore lacked jurisdiction to accept a guilty plea and impose
a sentence on it.
We transferred Dykens's appeal to this court on our own
motion to decide whether, where a defendant has pleaded guilty
to multiple counts of attempted unarmed burglary, he may
subsequently challenge his guilty pleas pursuant to Mass. R.
Crim. P. 30 (a), on double jeopardy grounds or whether he has
waived any such claim by pleading guilty; and whether, where a
defendant over the course of a single late evening and early
morning unsuccessfully tried to break into a home through three
different access points, he may be charged with multiple counts
of attempted unarmed burglary pursuant to G. L. c. 274, § 6, or
whether those acts constitute a single continuous course of
conduct rendering conviction on multiple counts duplicative.
3
We conclude that although Dykens the defendant may bring
his claim under rule 30 (a), the attempt statute, G. L. c. 274,
§ 6, permits multiple convictions for discrete, completed
attempts of unarmed burglary; that whether separate indictments
or complaints adequately charge separate attempts must be
determined on the particulars of each case; and in the present
case, that Dykens's multiple convictions and punishments were
for separate attempts, and therefore his multiple convictions
and punishments do not violate double jeopardy. We further
conclude that the court lacked jurisdiction to accept Dykens's
guilty plea as to the indictment charging possession of a
burglarious tool or implement because the indictment failed to
allege a crime. Accordingly, we affirm in part and reverse in
part the denial of Dykens's motion for postconviction relief.
1. Background. In the early morning hours of February 10,
2005, John and Jacqui Cram of Malden telephoned 911 after they
heard the sounds of breaking glass and saw a figure moving
around on their property. Malden police Officers Southbridge
and Killian responded to the call and observed the following on
their arrival: (1) a ladder that the Crams had last seen lying
on the ground had been placed against the house to provide
access to a second-story window; (2) a screen had been torn off
a first-floor window; and (3) a sliding glass door at the rear
of the house had been smashed. A large rock which had not
4
previously been on the deck lay nearby and apparently had been
used to break the glass.
The officers observed fresh footprints in the snow, which
Southbridge followed through neighboring streets and yards and
over a chain link fence; he discovered Dykens hiding among some
rocks. The officer ordered Dykens not to move, but Dykens
attempted to escape. The two men scuffled, and Killian
eventually arrived to assist. After a struggle, the officers
were able to subdue Dykens and handcuff him. As they stood him
up to transport him to the police station, Dykens kicked Killian
in the face with a shod foot.
In March, 2005, a grand jury indicted Dykens on seventeen
counts stemming from his arrest, including three counts of
attempted unarmed burglary1 and one count of possession of a
1
Three separate indictments were returned charging Kenneth
Dykens with violating G. L. c. 274, § 6, "on or about February
10." The first indictment charged, in relevant part, that
"Kenneth Dykens . . . did attempt to break and enter the
dwelling house of John Cram and Jacqui Cram in the nighttime
with intent to commit a felony therein, and in such attempt did
smash a glass sliding door in order to facilitate entry into the
home . . . but did fail in the perpetration of said offense, or
was intercepted, or prevented in the perpetration of the said
attempted offense" (emphasis added). The second indictment at
issue charged, in relevant part, that "Kenneth Dykens . . . did
attempt to break and enter the dwelling house of John Cram and
Jacqui Cram in the nighttime with intent to commit a felony, and
in such attempt did remove an outer screen in order to
facilitate entry into the home . . . but did fail in the
perpetration of said offense, or was intercepted, or prevented
in the perpetration of the said attempted offense" (emphasis
5
burglarious instrument (a heavy rock), which are at issue in
this appeal.2 Dykens pleaded not guilty to all charges at his
arraignment, and subsequently filed a motion to dismiss eight of
the seventeen indictments. As to two counts of attempted
unarmed burglary, Dykens argued that they were duplicative of a
third count. A judge denied the motion as to the multiple
indictments for attempted unarmed burglary.
On October 17, 2005, Dykens pleaded guilty to the three
counts of attempted unarmed burglary, being a habitual offender,
assault with intent to maim, assault and battery with a
dangerous weapon, possession of a burglarious instrument,
assault and battery on a public employee, and resisting arrest.
Dykens was sentenced to from seven years to seven years and one
day in State prison on the indictment charging him with assault
with intent to maim, five years in State prison concurrent with
that sentence on the indictment charging him with attempted
added). The third indictment at issue charged, in relevant
part, that "Kenneth Dykens . . . did attempt to break and enter
the dwelling house of John Cram and Jacqui Cram in the nighttime
with intent to commit a felony therein, and in such attempt did
position a ladder in order to facilitate entry into the home
. . . but did fail in the perpetration of said offense, or was
intercepted, or prevented in the perpetration of the said
attempted offense" (emphasis added).
2
Dykens also was indicted for assault with the intent to
maim, assault and battery with a dangerous weapon (a shod foot),
malicious destruction of property with a value over $250,
assault and battery on a public employee (two counts), resisting
arrest, and being a habitual offender.
6
unarmed burglary as a habitual offender, and five years
probation from and after his completed sentences on the other
counts.
After Dykens was released from prison, a probation
violation warrant issued. On March 22, 2013, a Superior Court
judge held a final probation surrender hearing. He found Dykens
in violation of the term of his probation and sentenced him to
two years in a house of correction on the charge of assault and
battery with a dangerous weapon, and an additional two years on
the charge of possessing a burglarious implement, to be served
from and after that. The judge also terminated Dykens's
probation on the remaining convictions.
On October 11, 2013, Dykens moved to vacate two of his
convictions of attempted armed burglary and his conviction of
possessing a burglarious tool or implement pursuant to rule
30 (a). In his motion, Dykens asserted that the convictions of
attempted burglary were duplicative, and should therefore be
vacated and dismissed. He also argued that the rock he used to
break the sliding door was not a burglarious instrument within
the meaning of G. L. c. 266, § 49, and that his conviction under
the statute should be vacated because the indictment was
defective for failing to state a crime. On September 2, 2014,
the judge denied the motion. Dykens timely appealed.
7
2. Discussion. a. Collateral attack on guilty plea. Both
the double jeopardy clause of the Fifth Amendment to the United
States Constitution and Massachusetts common law prohibit the
imposition of multiple punishments for the same offense.
Commonwealth v. Rollins, 470 Mass. 66, 70 (2014), citing
Marshall v. Commonwealth,
463 Mass. 529, 534 (2012). It is well
settled in our jurisprudence that a "guilty plea will not
preclude a court from hearing a constitutional claim that the
State should not have tried the defendant at all." Commonwealth
v. Negron,
462 Mass. 102, 104 (2012), quoting Commonwealth v.
Clark,
379 Mass. 623, 626 (1980).
A guilty plea is "an admission of the facts charged and is
itself a conviction" (quotation and citation omitted), Negron,
462 Mass. at 105, and is properly challenged under rule 30 (a),
which provides:
"Any person who is imprisoned or whose liberty is
restrained pursuant to a criminal conviction may at
any time, as of right, file a written motion
requesting the trial judge to release him or her or to
correct the sentence then being served upon the ground
that the confinement or restraint was imposed in
violation of the Constitution or laws of the United
States or of the Commonwealth of Massachusetts."
Mass. R. Crim. P. 30.
In Negron, 462 Mass. at 106-107, we held that a defendant
is not precluded from challenging his convictions (based on
guilty pleas) on double jeopardy grounds where the defendant
8
claims that the charges pleaded to are duplicative on their face
and further expansion of the record or evidentiary findings are
not required. Having concluded that the defendant could
challenge the convictions as duplicative, the court went on to
analyze whether they were in fact duplicative.3 Id. at 108-111.
The relevant convictions in Negron were for different
crimes, armed assault in a dwelling and aggravated burglary,
under different statutes, but arising out of the same criminal
conduct. Id. at 103. The court analyzed the elements of the
crimes and concluded that the former was not a lesser included
offense of the latter.
Id. at 109-111. Consequently, they were
not duplicative and convictions of both did not violate double
jeopardy.
Id. at 109.
Dykens's double jeopardy challenge to his multiple
convictions of attempted unarmed burglary does not involve a
claim that some of the charges are lesser included offenses of
the others (and thus duplicative), but rather that the
underlying conduct on which they are based constitutes but a
single continuing offense and thus multiple convictions and
3
The court in Commonwealth v. Negron, 462 Mass. 102, 108
n.6 (2012), left open the question whether the defendant, having
pleaded guilty, would relinquish his entitlement to bring a
double jeopardy challenge where a claim of duplicative
convictions required an expansion of the record or an
evidentiary hearing. We need not answer that question in this
case.
9
punishments for that offense are duplicative and violative of
his right to be free from double jeopardy.
The record in this case includes the three indictments,
each alleging a different act in furtherance of each attempt,
and the transcript of the hearing at which Dykens pleaded guilty
to all three. During the plea hearing, the prosecutor briefly
described the evidence that would have been presented as to each
of the three indictments, including Dykens's failed efforts to
gain entry by different means through three separate points of
access: a window on the second floor (toward which he placed a
ladder against the house); a window on the first floor (from
which he removed a screen); and a sliding glass door on the
first floor in the rear of the home (which he shattered with a
rock). Dykens admitted that he had done each of the things
alleged by the prosecutor with the intent to enter the home
through the three different access points, and thus, that he was
guilty of three different attempts to burglarize the same home.
Where the indictments on their face charge three attempts
to burglarize the same residence on or about the same date, and
the record includes at least a minimal description of the key
evidence establishing each of those attempts, we can decide
whether the indictments are duplicative without going beyond the
record, and therefore, Dykens may bring a double jeopardy
challenge.
10
b. Duplicative convictions. Where a single statute is
involved, we must decide "whether two [or more] discrete
offenses were proved under that statute rather than a single
continuing offense" (citations omitted). Commonwealth v.
Traylor, 472 Mass. 260, 268 (2015).
Our inquiry starts with what "unit of prosecution" the
Legislature intended as the punishable act for violations of the
attempt statute, G. L. 274, § 6. See Rollins, 470 Mass. at 70;
Commonwealth v. Rabb,
431 Mass. 123, 128 (2000).4 We begin with
the language and purpose of the statute to determine whether it
explicitly addresses the appropriate unit of prosecution, and if
it does not, "to ascertain that unit, keeping in mind that any
ambiguity that arises in the process must be resolved, under the
rule of lenity, in the defendant's favor."
Rollins, supra,
quoting
Rabb, supra. Also "[r]elevant to discerning a criminal
statute's unit of prosecution is the continuous offense
doctrine, which recognizes that certain criminal statutes are
intended to punish just once for a continuing course of conduct,
rather than for each and every discrete act comprising that
4
Although many of our cases have defined the appropriate
unit of prosecution under a particular statute, we have not
defined the term itself. We decide now that a unit of
prosecution is a criminal act or course of conduct punishable at
law. See United States v. Universal C.I.T. Credit Corp., 344
U.S. 218, 225-226 (1952).
11
course of conduct." Commonwealth v. Horne, 466 Mass. 440, 450
(2013).
The Massachusetts attempt statute, G. L. 274, § 6, punishes
"[w]hoever attempts to commit a crime by doing any act toward
its commission, but fails in its perpetration, or is intercepted
or prevented in its perpetration . . . ." Here, we construe the
attempt statute in conjunction with the underlying substantive
offense of unarmed burglary.5
The language of the attempt statute is not explicit as to
the permissible unit of prosecution. Dykens asks us to
interpret the language in § 6 according to the rules for
construction of statutes set out in G. L. c. 4, § 6, Fourth,
which provides in relevant part that "[w]ords importing the
singular number may extend and be applied to several persons or
things, words importing the plural number may include the
singular . . ." (emphasis added). When applied to the language
of the attempt statute, in Dykens's view, "any act" becomes "any
act or acts." Accordingly, Dykens believes, we can infer
5
General Laws c. 266, § 15, punishes "[w]hoever breaks and
enters a dwelling house in the night time, with the intent [to
commit a felony], or, having entered with such intent, breaks
such dwelling house in the night time, the offender not being
armed, nor arming himself in such house, with a dangerous
weapon, nor making an assault upon a person lawfully therein
. . . ."
12
legislative intent that all overt acts directed toward the
commission of a crime be punished by a single attempt charge.
We are not persuaded by Dykens's reasoning. By its plain
language, the purpose of the attempt statute is to penalize
those individuals who would have achieved their criminal
objective but for factual circumstances that result in failure,
interception, or prevention of the crime. See Commonwealth v.
Kennedy, 170 Mass. 18, 20 (1897) ("aim of the [attempt statute]
is not to punish sins, but is to prevent certain external
results"). Therefore, we conclude that the Legislature did not
intend to reward a defendant who, on failing to accomplish his
criminal endeavor in one manner, undertakes to achieve the
substantive crime anew in another.
Nor do we conclude that the continuing offense doctrine
advances Dykens's reading of the statute to impose a single
punishment for distinct attempts. Dykens relies on a decision
from the Appeals Court for the proposition that charged offenses
are duplicative where the acts underlying the offense are part
of a "continuous stream of conduct occurring within a short time
frame and governed by a single criminal design," and thus united
in "time, place, and intent." Commonwealth v. Howze, 58 Mass.
App. Ct. 147, 153 (2003), overruled on other grounds by
Commonwealth v. Kelly,
470 Mass. 682, 700-701 (2015). In
Howze,
supra at 147, 153, the Appeals Court held that, where the
13
defendant was convicted of indecent assault and battery on a
child and of rape of a child, "the act of removing the victim's
clothing was sufficiently bound up with and necessary to the act
of penetration that due process [forbade] separating the conduct
into discrete units for prosecution." See also Commonwealth v.
Suero, 465 Mass. 215, 220-221 (2013) (conviction of indecent
assault and battery vacated as duplicative of rape convictions
where former rested on removal of rape victim's underwear that
was "incidental and necessary to the rape").
Howze and Suero are inapposite. Although Dykens's acts
occurred close together in time and at the same home, his acts
were not "bound up with and necessary to" one another as the
defendant's actions were in those cases. Howze, 58 Mass. App.
Ct. at 153. Rather, his attempts to gain access via different
entry points of the dwelling each could have resulted in a
successful break of the dwelling. A different conclusion could
be drawn if the defendant was charged with three separate
attempts based on the acts of: (1) the placement of a ladder to
reach a window, (2) the removal of the screen from that same
window, and (3) the use of a rock to then break the glass on
that window in an effort to gain access. In such circumstances,
the three acts would in fact be "bound up with and necessary to"
the completion of a single crime, much as the removal of
underwear in the perpetration of a rape.
14
Dykens also points to our decision in Commonwealth v.
Bolden, 470 Mass. 274, 274-275 (2014), in which we held that a
defendant could not be twice convicted of aggravated burglary
under G. L. c. 266, § 14, for breaking and entering a single
dwelling. In that case, the defendant broke into a dwelling
where a husband and wife resided and assaulted the husband in
the basement. Id. at 275-276. He then broke through an
interior door leading to the first floor and assaulted the wife.
Id. at 276. He was subsequently charged with two counts of
aggravated burglary, one premised on the break into the house
and the assault of the husband, and the other on the break of
the interior door and assault of the wife. Id. at 276. We
vacated the conviction on the second indictment, concluding 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." Id. at 279. We stated:
"Once a person has broken and entered any part of
the dwelling, at night, . . . with intent to commit a
felony therein, the predicate offense of burglary as
to that dwelling is complete. 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."
Id. at 280. Dykens argues that if multiple breaks of a single
dwelling do not create distinct, punishable offenses, then
15
multiple attempted breaks into a single dwelling must also
constitute a continuous offense.
Dykens's reliance on Bolden is misplaced. The unit of
prosecution for aggravated burglary is different from the unit
of prosecution for attempted burglary. For the latter the
proper unit of prosecution is the act necessary to prove the
inchoate offense of attempt, and not the substantive crime of
burglary. Thus, although in Bolden the unit of prosecution was
the act of breaking and entering a singular dwelling, the unit
of prosecution for attempted burglary is "any act toward [the
substantive crime's] commission." G. L. c. 274, § 6.
We have consistently interpreted the attempt statute to
require "a showing that the defendant, after preparing to commit
the crime, has taken such overt acts toward fulfilling the crime
that 'come near enough to the accomplishment of the substantive
offence to be punishable.'" Commonwealth v. Bell, 455 Mass.
408, 412 (2009), quoting Commonwealth v. Peaslee,
177 Mass. 267,
271 (1901). Moreover, where distinct acts form the basis of
separate indictments, the Commonwealth must still prove all
elements required by the attempt statute for each charge.6
6
Dykens does not dispute that he possessed the requisite
intent, nor does he contest that he failed to achieve the
substantive crime of unarmed burglary. We therefore focus on
whether the facts alleged in each indictment support a finding
of distinct overt acts that support independent convictions.
16
Here, each of Dykens's acts, as alleged in the indictments,
fit squarely within the definition of an overt act. See
Commonwealth v. Foley, 24 Mass. App. Ct. 114, 115 (1987)
(complaint or indictment charging attempt must specify overt
act). Positioning a ladder to facilitate entry into the
dwelling, removing an outer screen to facilitate entry into the
dwelling, and smashing a glass sliding door to facilitate entry
each constitute an independent act sufficient to warrant a
charge of attempt. In each instance, Dykens, after having
entered upon the Crams' property with the intent to break into
their home, was in a position to accomplish the substantive
offense absent his apparent inability to gain entry at the
different access points. In other words, with each failure to
break into the dwelling, the crime of attempt was complete.
Although the proximity in time, manner, and place of
Dykens's conduct is relevant to distinguishing discrete acts
from a continuous act, such factors are not in and of themselves
dispositive. Rather, Dykens's attempts to gain entry at
different access points of the dwelling weigh heavily against a
determination that there was a "continuous stream of conduct."
Howze, 58 Mass. App. Ct. at 153. With each failure to gain
entry, Dykens had the opportunity to abandon his endeavors.
Instead, he moved on to another potential point of access to the
home and committed further unrelated acts in an effort to break
17
in, finally fleeing when he awakened the residents inside. The
Legislature surely did not intend to reward such persistence by
encompassing multiple, discrete attempts within a single unit of
prosecution.
Of course, our analysis is not so granular as to say that
picking up a ladder is not part of the same course of conduct
where the defendant then proceeds to place the ladder against a
house. Similarly, a defendant who repeatedly batters a single
door with the purpose of gaining entry has likely committed only
one attempt at breaking and entering. Dykens's case highlights
a long-standing comprehension in our jurisprudence of the
distinction between constituent acts that, taken together, may
amount to an attempt and discrete acts that, in and of
themselves, establish the elements required to prove the
inchoate offense. See Peaslee, 177 Mass. at 271 (distinguishing
between act sufficient to establish attempt and those
preparatory actions that, taken together, may amount to
attempt).7 See also Commonwealth v. Burns,
8 Mass. App. Ct. 194,
7
A similar distinction is made in United States v.
Resendiz-Ponce, 549 U.S. 102, 109 n.5 (2007), which Dykens
relies on in his brief for the position that "an attempt
involving multiple overt acts might conceivably qualify for
several separate offenses, thus perversely enhancing, rather
than avoiding, the risk of successive prosecution for the same
wrong." In Resendiz-Ponce, the defendant, a Mexican citizen,
was charged with attempting to unlawfully enter the United
States based on the following acts: he walked into an
18
196 (1979), citing Peaslee, supra at 271-274 ("The essence of
the crime of attempt is that the defendant has taken a step
towards a criminal offense with specific intent to commit that
particular crime. . . . It is not enough to allege that a
defendant has formed the intent to commit a crime or that he has
merely made preparations for the commission of a crime"
[quotation and citation omitted]).
Thus, we conclude that multiple attempted breaks of a
single dwelling furthered by separate acts, each coming near to
the accomplishment of the crime of burglary, and not bound up
with and necessary to each other, may be charged as separate
offenses. The question whether factual allegations within
multiple indictments adequately charge separate attempts so as
to permit their prosecution is one of fact and law and dependent
on the particulars in each case. The question is one that, in
the first instance, may be for the motion or trial judge in the
context of a motion to dismiss and, should the case proceed to
trial, is a factual question that a properly instructed jury
inspection area; presented a misleading identification card; and
lied to the inspector. Id. at 103, 109. The United States
Supreme Court explained that "[i]ndividually and cumulatively,
those acts tend to prove the charged attempt -- but none was
essential to the finding of guilt in this case. All three acts
were rather part of a single course of conduct culminating in
the charged 'attempt.'" Id. at 109. Thus the charged conduct
constituted a single attempt, which failed a single time. In
contrast, Dykens committed acts at three separate access points.
19
must decide. In any event, after a jury verdict of guilty on
multiple convictions, and on the request of defense counsel for
a judgment notwithstanding the verdict, "a judge also must
determine whether the convictions violate the defendant's
rights" under the principles of double jeopardy. Suero, 465
Mass. at 222.8
c. Jurisdictional defect. Dykens also asserts that his
conviction under G. L. c. 266, § 49, for possession of a
burglarious tool or implement must be vacated because a rock is
not a tool or an implement within the meaning of the statute.9
8
Under the doctrine of merger, where the facts support
multiple attempt charges but where the defendant ultimately
succeeds in committing the substantive crime, the attempt
resulting in completion of the crime would merge with the
substantive offense. Any other charged attempts, however, could
stand as separate convictions so long as the Commonwealth proved
the requisite elements of the separately charged attempts
including the intent to commit the underlying crime, and an
overt act coming near to its accomplishment. The analysis here
is straightforward where Dykens admitted to having the requisite
intent in connection with each attempt to break and enter the
Crams' home, as well as to having committed separate overt acts
while on the victims' property in his efforts to gain access to
the home through three different points of entry.
9
General Laws c. 266, § 49, punishes "[w]hoever makes or
mends, or begins to make or mend, or knowingly has in his
possession, an engine, machine, tool or implement adapted and
designed for cutting through, forcing or breaking open a
building, room, vault, safe or other depository, in order to
steal therefrom money or other property, or to commit any other
crime, knowing the same to be adapted and designed for the
purpose aforesaid, with intent to use or employ or allow the
same to be used or employed for such purpose, or whoever
knowingly has in his possession a master key designed to fit
20
He seeks review on the ground that the indictment was defective
in failing to allege a crime, and the court lacked jurisdiction
to accept his plea and impose a sentence for such conduct. "No
court has jurisdiction to sentence a defendant for that which is
not a crime." Commonwealth v. Wilson, 72 Mass. App. Ct. 416,
418, quoting Commonwealth v. Andler,
247 Mass. 580, 582 (1924).
We agree.
"We interpret statutory language to give effect consistent
with its plain meaning and in light of the aim of the
Legislature unless to do so would achieve an absurd or illogical
result" (quotations omitted). Commonwealth v. Scott, 464 Mass.
355, 358 (2013). In 1853, the Legislature enacted the
predecessor of G. L. c. 266, § 49, entitled, "An Act concerning
Implements of Burglary." See St. 1853, c. 194. The statute
came after the Committee on the Judiciary was tasked with
"consider[ing] the [e]xpediency of providing for the punishment
of persons making [b]urglar tools, or having such in their
possession, with intent that they shall be used." 1853 House J.
at 629. The bill containing the apparent final version of the
statute was reported from the Committee on the Judiciary and
passed by both the House of Representatives and the Senate;
more than one motor vehicle, with intent to use or employ the
same to steal a motor vehicle or other property therefrom
. . . ."
21
there is no mention of any amendments to the bill. See 1853
House J. at 680, 762; 1853 Senate J. at 529, 538, 551.
From this history we can infer that the statute was enacted
with the purpose of punishing individuals making or possessing
burglar's tools. A question remains, however, as to what
constitutes a "tool" or "implement" under § 49, as the statute
does not define these terms. We therefore look to the ordinary
meaning of the word as of 1853, the year the statute was
enacted. See Kerins v. Lima, 425 Mass. 108, 111 n.5 (1997)
(where term in statute is undefined, we may conclude that
Legislature intended definition that would have been available
at time original statute enacted). The 1845 edition of
Webster's dictionary defined "tool" as "[a]n instrument of
manual operation, particularly such as are used by farmers and
mechanics; as, the tools of a joiner, cabinet-maker, smith or
shoemaker." An American Dictionary of the English Language 798,
vol. II (1845). "Implement" was defined as "[w]hatever may
supply wants: particularly, as now used, tools, utensils,
vessels, instruments; the tools or instruments of labor . . . ."
An American Dictionary of the English Language 870, vol. I
(1845).
From these definitions, we can conclude that the words
"tool" and "implement" refer to man-made, rather than naturally
occurring, items. This conclusion is supported by other
22
language in the statute, which further describes tools and
implements as those "adapted and designed for cutting through,
forcing or breaking open." G. L. c. 266, § 49.
Our reading of § 49 to exclude naturally occurring objects
is also consistent with this court's prior interpretations of
the statute. We have long recognized that the statute
encompasses both ordinary tools and those designed specifically
for burglary. See Commonwealth v. Tivnon, 8 Gray 375, 381
(1857) ("A chisel or centre-bit, though a tool in common use for
ordinary purposes, is quite as efficacious in the hands of a
burglar to carry out his felonious intent, as a jimmy or a lock-
picker, which is made for the sole purpose of being used to
break and enter buildings."); Commonwealth v. Jones, 355 Mass.
170, 176-177 (1969) (ordinary tools may take on character of
burglarious tools if they are intended to be used for
burglarious purposes). See also Commonwealth v. Krasner,
358
Mass. 727, 731, S.C.,
360 Mass. 848 (1971) (battering ram a
burglarious implement under § 49); Commonwealth v. Faust,
81
Mass. App. Ct. 498, 500-501 (2012) (screwdrivers, knife, and
flashlights are burglarious instruments under § 49);
Commonwealth v. Aleo,
18 Mass. App. Ct. 916, 916-917 (1984)
(screwdrivers and dent pullers are burglarious implements under
§ 49); Commonwealth v. Dreyer,
18 Mass. App. Ct. 562, 565 (1984)
(screwdriver a burglarious implement under § 49). In no case
23
have we found that a naturally occurring object, such as a rock,
is a tool or an implement within the meaning of the statute.
Notwithstanding this fact, the Commonwealth contends that
the rock used by Dykens to smash the Crams' glass door could
have been altered in some way to make it more efficacious in
smashing windows. Even if this were the case, in light of the
purpose and meaning of § 49, we cannot conclude that a rock is a
tool or an implement designed or adapted to effect an
individual's burglarious intent. Rather we hold that the words
"tool" and "implement," as they appear in § 49, refer to man-
made instruments.
In one of our earliest cases addressing § 49, we held that
an indictment alleging a violation of St. 1853, c. 194 is
supported by proof that some of the implements described in the
indictment were in the possession of the defendant, and "adapted
and designed for the unlawful purpose specified." Tivnon, 8
Gray at 380. Here, the indictment failed to identify an
implement "adapted and designed" for breaking into a building,
G. L. c. 266, § 49, because a rock is not a tool or implement
within the meaning of § 49. Where an indictment fails to allege
a fact necessary to constitute an offense, it is defective, and
"no court has jurisdiction to entertain it." Commonwealth v.
Cantres, 405 Mass. 238, 239-240 (1989). Because we conclude
that a rock is not a tool or implement under § 49, the
24
indictment in Dykens's case failed to allege a crime for which
the court could accept a guilty plea, and Dykens's conviction
must be vacated.
3. Conclusion. For the reasons discussed herein, the
denial of Dykens's motion to vacate two of his convictions of
attempted unarmed burglary is affirmed. The denial of his
motion to vacate his conviction of possession of a burglarious
tool or implement is reversed, and the matter is remanded to the
Superior Court for the dismissal of that indictment.
So ordered.
DUFFLY, J. (dissenting, with whom Lenk and Hines, JJ.,
join). The court today upholds three convictions of attempted
unarmed burglary of a single dwelling on a single night, based
on the defendant's guilty pleas acknowledging his intent to
commit unarmed burglary of the dwelling. It is conceivable that
a person properly could be convicted of three attempts of
unarmed burglary of the same dwelling in a single night, and the
defendant here acknowledged in his plea that he intended to
commit an unarmed burglary and undertook the acts separately
alleged in the indictments: removing an outer screen,
positioning a ladder, and smashing a glass door with a rock. As
to the indictment alleging the overt act of "smash[ing] a glass
sliding door in order to facilitate entry into the home", I
concur in the judgment of the court that the evidence supports a
conviction of attempted unarmed burglary. In addition to
acknowledging that he had smashed the glass door with a rock,
intending to burglarize the dwelling, the defendant agreed with
the prosecutor's statement at the plea colloquy that, before
fleeing, he had been standing on the deck, at the rear door, and
that he "had been trying to force the rear door."
As to the other two acts which form the basis of the other
two indictments, but were "not the final act in a necessary
sequence," Commonwealth v. McWilliams, 473 Mass. , (2016)
(McWilliams), the evidence fails to show that each act was "so
2
close to the commission of the crime that a reasonable jury
could conclude that it was virtually certain that he would have"
committed the substantive offense of unarmed burglary. Id.
Therefore, I respectfully dissent.
The attempt statute, G. L. c. 274, § 6, was enacted in
1832. See St. 1832, c. 62. It criminally punishes "[w]hoever
attempts to commit a crime by doing any act toward its
commission, but fails in its perpetration, or is intercepted or
prevented in its perpetration . . . ." The analytical framework
which heretofore has informed our understanding of the statutory
crime of attempt was developed well over a century ago and has
remained unaltered to this day. As we recently reiterated,
"[t]here are two categories of attempt." McWilliams, supra at
. In the first category, a defendant has undertaken "the last
act required to complete the crime, but for some unanticipated
reason, his or her efforts are thwarted, whether by bad aim or a
mistake in judgment." Id. See Commonwealth v. Bell, 455 Mass.
408, 413 (2009) (Bell), quoting Commonwealth v. Peaslee,
177
Mass. 267, 271 (1901) (Peaslee).1 Ascertaining "criminal
1
The "last act" required to be undertaken by a defendant
refers to the act "which sets in motion natural forces that
would bring [the substantive crime] about in the expected course
of events" or to "an act which is intended to bring about the
substantive crime and would bring it about but for a
mistake . . . ." See Commonwealth v. Peaslee, 177 Mass. 267,
271 (1901).
3
liability for this sort of failed attempt is uncomplicated and
noncontroversial." Bell, supra at 424 (Gants, J., dissenting).
In the second category, which we have described as "more
complicated," McWilliams, supra at , a defendant has been
interrupted in the "preparatory mode," before having undertaken
the last act necessary to commit the offense. See id.;
Bell,
supra at 413.
An overt act, even when coupled with the intent to commit
a crime, "commonly is not punishable if further acts are
contemplated as needful." Peaslee, supra at 272. Where, as
here, a defendant has been interrupted before having undertaken
the last necessary act, the focus of the inquiry is whether a
defendant's "overt acts . . . , although not the final act in a
necessary sequence, were so close to the commission of the crime
that a reasonable jury could conclude that it was virtually
certain that he would have" committed the substantive offense.
McWilliams, supra at . See
Bell, supra at 413-414;
Peaslee,
supra at 272. The distance between the overt act and the
completion of the "crime must be 'relatively short' and
'narrow,'" McWilliams, supra at , quoting
Bell, supra at 415.
How narrow depends on "the gravity of the crime, the uncertainty
of the result, and the seriousness of harm that is likely to
result." McWilliams, supra at , citing
Bell, supra at 414.
4
See Commonwealth v. Kennedy, 170 Mass. 18, 22 (1897).2 See also
Commonwealth v. Gosselin,
365 Mass. 116, 121 (1974).
In this case, where each indictment alleged a nonviolent
crime, not directed against a person, perpetrated by an unarmed
individual, the degree of proximity between the overt act and
completion of the crime must be quite narrow. Contrast
McWilliams, supra at . In the circumstances here, a
defendant's conduct at the point when he or she was interrupted
must have brought the defendant so close to perpetration of the
offense as to render it "virtually certain" that, but for the
interruption, the defendant would have committed the substantive
crime. See id. To determine whether a defendant properly may
be convicted of attempt requires that we examine any acts
remaining in the sequence, as well as "all conduct short of the
last act as 'preparation'". See Bell, supra at 428 (Gants, J.,
dissenting), quoting
Peaslee, supra at 272.3
2
As stated by Chief Justice Holmes in Commonwealth v.
Kennedy, 170 Mass. 18, 22 (1897), "the gravity of the crime, the
uncertainty of the result, and the seriousness of the
apprehension, coupled with the great harm likely to result from
poison even if not enough to kill, would warrant a holding of
liability for an attempt to begin at a point more remote from
the possibility of accomplishing what is expected than might be
the case with lighter crimes."
3
Examining all relevant prior acts undertaken by a
defendant that culminate in the overt act is also necessary to
determine whether the defendant harbored the intent necessary to
commit the substantive offense. See McWilliams, 473 Mass. ,
5
Here, the indictments alleged that the defendant "did smash
a glass sliding door," "did remove an outer screen," and "did
position a ladder in order to facilitate entry into the home."
To find the defendant guilty of three separate crimes of
attempt, each act must be considered independently, without the
context provided by the other acts alleged.
Considering first the conviction based on the defendant's
admissions that he removed an outer screen from a first-floor
window and that he intended to commit a burglary, nothing in the
indictment or in the plea colloquy indicates that the absence of
the screen alone would have enabled the defendant to enter the
dwelling without undertaking several additional steps. If the
window were located anywhere above the basement level (the
record does not indicate the location or size of the window),
entry might have required locating the means, such as a box, to
reach the window to achieve entry; the defendant then would have
had to climb or stand on that object; if the window were locked,
the defendant would have had to break or pick the lock, or break
the window, having first obtained an implement with which to do
so, before attempting entry into the dwelling. On this record,
(2016). Here, on the basis of each separately indicted act, it
is not possible to determine whether the defendant intended to
commit a burglary, but because he admitted that he harbored the
necessary intent, this requirement needs no further
consideration.
6
given the steps that remained before the defendant could have
completed the substantive offense, I cannot agree that the act
of merely removing an outer screen was "so close to the
commission of the crime that a reasonable jury could conclude it
was virtually certain that he would have" burglarized the house.
McWilliams, supra at .
The conviction based on the defendant's admission to
placing a ladder against the house raises similar concerns. The
defendant agreed only that he moved a ladder "in order to
facilitate entry" into the dwelling.4 Based on the facts in the
record, even if the ladder had been placed directly under a
second-floor window, and had been long enough to reach the
window (neither fact being established in the record and, given
the actions with the rock, the contrary apparently being the
case), the defendant still would have had to climb the ladder in
4
This language appears in the indictment. The grand jury
heard testimony from a police officer that "a ladder that [the
homeowner] kept at the side of the house had been moved to the
deck and was partially propped up against the house." At the
plea colloquy, the defendant agreed to the prosecutor's
statement that a "ladder that had been [lying] flat behind the
house had been moved to provide access to a second-story window
by some unknown party." The prosecutor's account, to which the
defendant agreed, certainly establishes that the defendant moved
the ladder with the intention to use it to enter the home, but
it does not establish as a factual matter how close the
defendant came to breaking into the house with the use of the
ladder. It is possible that the defendant found the ladder to
be too heavy to use, or too short to reach the window, and so he
left it "partially propped" horizontally against the house. The
record contains no other facts concerning the ladder.
7
order to reach the window and thereafter find a way to break
either the lock or the window in order to enter the house. In
the context of the established facts, these are acts of
preparation that involve arranging the means necessary in order
to be able to commit a burglary, not sufficient overt acts to
permit a reasonable fact finder to conclude that it was
"virtually certain" that he would have committed the burglary
with each discrete act.
The court concludes that each act came near enough "to the
accomplishment of the crime of burglary" to be punishable, ante
at , without explaining how it arrives at this conclusion.
In light of the scant facts in the record and the gaps discussed
above, the court must be inferring from the defendant's guilty
pleas the existence of the additional facts that would be
required to show that he came sufficiently close to committing
burglary to support three convictions of attempt. Such an
inference, however, is improper; "an admission to a crime
generally will not function in itself as an admission to all of
the elements of that crime." Commonwealth v. Sherman, 451 Mass.
332, 337 (2008). See
id. at 336-338 (discussing dismissal of
guilty plea where defendant claimed his agreement to facts
recited by prosecutor did not satisfy elements of crime).
Accordingly, I respectfully dissent.
