Morey test in Massachusetts

2025See Crocker, supra ("The assumption underlying the Morey rule . . . is that the Legislature ordinarily does not intend to punish the same offense under two different statutes" [quotation and citation omitted]).

2025See Crocker, 384 Mass. at 360 ("where expressions of legislative intent indicate that double punishment should not be imposed, courts should implement that intent even though the offenses are distinct under the Morey test").

2023See Commonwealth v. Alvarez, 413 Mass. 224, 232 (1992), overruled in part on other grounds by Commonwealth v. Kelly, 484 Mass. 53 , 62 n.7 (2020) ("Where the Legislature has specifically authorized cumulative punishment under two statutes, even if the two statutes proscribe the same conduct under the Morey test, a court's job of statutory construction is terminated, and the intent of the Legislature is to be enforced").

2023See Commonwealth v. Alvarez, 413 Mass. 224, 232 (1992), overruled in part on other grounds by Commonwealth v. Kelly, 484 Mass. 53 , 62 n.7 (2020) ("Where the Legislature has specifically authorized cumulative punishment under two statutes, even if the two statutes proscribe the same conduct under the Morey test, a court's job of statutory construction is terminated, and the intent of the Legislature is to be enforced").

2024See Commonwealth v. Jones, 441 Mass. 73, 76 (2004) (under Morey test "[t]he actual criminal acts alleged are wholly irrelevant to application of [the rule]; rather, the elements of the crimes charged are considered objectively, abstracted from the facts" [citation omitted]); Commonwealth v. Crocker, 384 Mass. 353, 360 (1981) ("In order to determine whether the Legislature in a given situation has authorized conviction and sentence under two statutory offenses, the Morey test provides a fitting rule of interpretation"); Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 126 (2010), abrogated on ot

2024See Commonwealth v. Jones, 441 Mass. 73, 76 (2004) (under Morey test "[t]he actual criminal acts alleged are wholly irrelevant to application of [the rule]; rather, the elements of the crimes charged are considered objectively, abstracted from the facts" [citation omitted]); Commonwealth v. Crocker, 384 Mass. 353, 360 (1981) ("In order to determine whether the Legislature in a given situation has authorized conviction and sentence under two statutory offenses, the Morey test provides a fitting rule of interpretation"); Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 126 (2010), abrogated on ot

2024See Commonwealth v. Jones, 441 Mass. 73, 76 (2004) (under Morey test "[t]he actual criminal acts alleged are wholly irrelevant to application of [the rule]; rather, the elements of the crimes charged are considered objectively, abstracted from the facts" [citation omitted]); Commonwealth v. Crocker, 384 Mass. 353, 360 (1981) ("In order to determine whether the Legislature in a given situation has authorized conviction and sentence under two statutory offenses, the Morey test provides a fitting rule of interpretation"); Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 126 (2010), abrogated on ot

2024See Commonwealth v. Jones, 441 Mass. 73, 76 (2004) (under Morey test "[t]he actual criminal acts alleged are wholly irrelevant to application of [the rule]; rather, the elements of the crimes charged are considered objectively, abstracted from the facts" [citation omitted]); Commonwealth v. Crocker, 384 Mass. 353, 360 (1981) ("In order to determine whether the Legislature in a given situation has authorized conviction and sentence under two statutory offenses, the Morey test provides a fitting rule of interpretation"); Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 126 (2010), abrogated on ot

2024See Commonwealth v. Jones, 441 Mass. 73, 76 (2004) (under Morey test "[t]he actual criminal acts alleged are wholly irrelevant to application of [the rule]; rather, the elements of the crimes charged are considered objectively, abstracted from the facts" [citation omitted]); Commonwealth v. Crocker, 384 Mass. 353, 360 (1981) ("In order to determine whether the Legislature in a given situation has authorized conviction and sentence under two statutory offenses, the Morey test provides a fitting rule of interpretation"); Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 126 (2010), abrogated on ot

2024See Commonwealth v. Jones, 441 Mass. 73, 76 (2004) (under Morey test "[t]he actual criminal acts alleged are wholly irrelevant to application of [the rule]; rather, the elements of the crimes charged are considered objectively, abstracted from the facts" [citation omitted]); Commonwealth v. Crocker, 384 Mass. 353, 360 (1981) ("In order to determine whether the Legislature in a given situation has authorized conviction and sentence under two statutory offenses, the Morey test provides a fitting rule of interpretation"); Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 126 (2010), abrogated on ot

2024See Commonwealth v. Jones, 441 Mass. 73, 76 (2004) (under Morey test "[t]he actual criminal acts alleged are wholly irrelevant to application of [the rule]; rather, the elements of the crimes charged are considered objectively, abstracted from the facts" [citation omitted]); Commonwealth v. Crocker, 384 Mass. 353, 360 (1981) ("In order to determine whether the Legislature in a given situation has authorized conviction and sentence under two statutory offenses, the Morey test provides a fitting rule of interpretation"); Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 126 (2010), abrogated on ot

2024See Commonwealth v. Jones, 441 Mass. 73, 76 (2004) (under Morey test "[t]he actual criminal acts alleged are wholly irrelevant to application of [the rule]; rather, the elements of the crimes charged are considered objectively, abstracted from the facts" [citation omitted]); Commonwealth v. Crocker, 384 Mass. 353, 360 (1981) ("In order to determine whether the Legislature in a given situation has authorized conviction and sentence under two statutory offenses, the Morey test provides a fitting rule of interpretation"); Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 126 (2010), abrogated on ot

2002The court emphasized that the “assumption underlying the Morey rule, which was adopted by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 (1932), is that the Legislature ‘ordinarily does not intend to punish the same offense under two different statutes.

2002The court emphasized that the “assumption underlying the Morey rule, which was adopted by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 (1932), is that the Legislature ‘ordinarily does not intend to punish the same offense under two different statutes.

2020See Commonwealth v. Alvarez, 413 Mass. 224, 232 (1992) (noting that "same evidence" rule expressed in Morey v. Commonwealth, 108 Mass. 433, 434 [1871], is not constitutionally based and that "[w]here the Legislature has specifically authorized cumulative punishment under two statutes, even if the two statutes proscribe the same conduct under the Morey test, a court's job of statutory construction is terminated, and the intent of the Legislature is to be enforced").

2020See Commonwealth v. Alvarez, 413 Mass. 224, 232 (1992) (noting that "same evidence" rule expressed in Morey v. Commonwealth, 108 Mass. 433, 434 [1871], is not constitutionally based and that "[w]here the Legislature has specifically authorized cumulative punishment under two statutes, even if the two statutes proscribe the same conduct under the Morey test, a court's job of statutory construction is terminated, and the intent of the Legislature is to be enforced").

2010In Com monwealth v. Vick, 454 Mass. 418, 431 (2009), the court held that the traditional, element-based Morey rule “remains the standard for determining whether multiple convictions stemming from one criminal transaction are duplicative.” The “elements-based approach recognizes ‘the role of the Legislature as the primary body that creates, and defines, crimes, and the fact that, in punishing related offenses, the Legislature usually intends to further distinct policies.’ ” Id. at 431-432, quoting from Commonwealth v. Jones, 441 Mass. at 75 .

2010In Com monwealth v. Vick, 454 Mass. 418, 431 (2009), the court held that the traditional, element-based Morey rule “remains the standard for determining whether multiple convictions stemming from one criminal transaction are duplicative.” The “elements-based approach recognizes ‘the role of the Legislature as the primary body that creates, and defines, crimes, and the fact that, in punishing related offenses, the Legislature usually intends to further distinct policies.’ ” Id. at 431-432, quoting from Commonwealth v. Jones, 441 Mass. at 75 .

2009“The error in Catania was important; it demonstrated that a departure from the elements-based Morey test in favor of a judicial assessment of the evidence at a trial of multiple offenses (the so-called ‘conduct-based’ test) . . . ‘runs the risk of unnecessary intrusion into the legislative prerogative to define crimes and fix punishments.’ ” Commonwealth v. Oliveira, 53 Mass. App. Ct. 480, 484 (2002), quoting from Commonwealth v. Crocker, supra at 359 .

2009In Commonwealth v. Crocker, supra at 359 , we stated that a departure from the elements-based Morey test, in favor of a judicial assessment of the evidence introduced in a single criminal trial of multiple offenses, “runs the risk of unnecessary intrusion into the legislative prerogative to define crimes and fix punishments.” See Commonwealth v. Oliveira, 53 Mass. App. Ct. 480, 482-487 (2002) (distinct legislative policies embedded in statutes criminalizing indecent assault and battery and assault with intent to rape mandated conclusion that Legislature intended to punish each offense even tho

2009See Commonwealth v. King, 445 Mass. 217, 225 (2005), cert, denied, 546 U.S. 1216 (2006) (convictions of greater and lesser included offenses “must rest on separate and distinct acts”); Commonwealth v. Sanchez, 405 Mass. 369,381-382 (1989) (conduct-based analysis appropriate where crimes charged are greater and lesser offenses); Commonwealth v. Gallant, supra at 413-416 (distinguishing Morey test from conduct-based analysis); Commonwealth v. Pileeki, 62 Mass. App. Ct. 505, 515-517 (2004) (Brown, J., concurring in result) (same); Commonwealth v. Howze, 58 Mass. App. Ct. 147 , 152-153 & n.7 (2003

2006See, e.g., Commonwealth v. Sanchez, 405 Mass. 369, 381-382 (1989); Commonwealth v. Mamay, 407 Mass. 412, 418-419 (1990); Commonwealth v. Maldonado, 429 Mass. 502, 509-510 (1999). 8 Further, and more important, it is difficult to see how such a conduct-based test could ever possibly mesh with the Morey standard.

2002See also Commonwealth v. Rivera, 397 Mass. 244 (1986), discussing Commonwealth v. Jones, 382 Mass. 387 (1981), and approving the holding in Jones that even when, as in Jones , the Morey standard for permitting separate punishments for a single incident is satisfied, “the Legislature did not intend to punish a defendant for homicide by motor vehicle or [for] operating so as to endanger if he has already been punished for manslaughter arising out of the same incident . . .” (emphasis added).

2002See also Commonwealth v. Rivera, 397 Mass. 244 (1986), discussing Commonwealth v. Jones, 382 Mass. 387 (1981), and approving the holding in Jones that even when, as in Jones , the Morey standard for permitting separate punishments for a single incident is satisfied, “the Legislature did not intend to punish a defendant for homicide by motor vehicle or [for] operating so as to endanger if he has already been punished for manslaughter arising out of the same incident . . .” (emphasis added).

1987Compare, for situations where concurrent sentences were held to be improper, Kuklis v. Commonwealth, 361 Mass. 302, 309 (1972); Commonwealth v. White (No. 2), 365 Mass. 307, 311 (1974), cert. denied, 419 U.S. 1111 (1975); Commonwealth v. Jones, 382 Mass. 387, 395 (1981) (“We now conclude . . . that the protection against multiple punishments embodied in the Morey test for duplicitous convictions extends as well to the imposition of concurrent sentences for what amounts to the same offense”).

1987Compare, for situations where concurrent sentences were held to be improper, Kuklis v. Commonwealth, 361 Mass. 302, 309 (1972); Commonwealth v. White (No. 2), 365 Mass. 307, 311 (1974), cert. denied, 419 U.S. 1111 (1975); Commonwealth v. Jones, 382 Mass. 387, 395 (1981) (“We now conclude . . . that the protection against multiple punishments embodied in the Morey test for duplicitous convictions extends as well to the imposition of concurrent sentences for what amounts to the same offense”).

1998The Costarelli decision, 374 Mass. at 683-684 , while arguably applying a conduct-based test, expressly purports to apply the Morey standard.

1998The Costarelli decision, 374 Mass. at 683-684 , while arguably applying a conduct-based test, expressly purports to apply the Morey standard.

2025See, e.g., Commonwealth v. Rivas, 466 Mass. 184 , 189 n.7 (2013) (although, under Morey test, unlawful possession of firearm, G.

2025See, e.g., Commonwealth v. Rivas, 466 Mass. 184 , 189 n.7 (2013) (although, under Morey test, unlawful possession of firearm, G.

2024See Commonwealth v. Jones, 441 Mass. 73, 76 (2004) (under Morey test "[t]he actual criminal acts alleged are wholly irrelevant to application of [the rule]; rather, the elements of the crimes charged are considered objectively, abstracted from the facts" [citation omitted]); Commonwealth v. Crocker, 384 Mass. 353, 360 (1981) ("In order to determine whether the Legislature in a given situation has authorized conviction and sentence under two statutory offenses, the Morey test provides a fitting rule of interpretation"); Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 126 (2010), abrogated on ot

2024See Commonwealth v. Jones, 441 Mass. 73, 76 (2004) (under Morey test "[t]he actual criminal acts alleged are wholly irrelevant to application of [the rule]; rather, the elements of the crimes charged are considered objectively, abstracted from the facts" [citation omitted]); Commonwealth v. Crocker, 384 Mass. 353, 360 (1981) ("In order to determine whether the Legislature in a given situation has authorized conviction and sentence under two statutory offenses, the Morey test provides a fitting rule of interpretation"); Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 126 (2010), abrogated on ot

2024See Commonwealth v. Jones, 441 Mass. 73, 76 (2004) (under Morey test "[t]he actual criminal acts alleged are wholly irrelevant to application of [the rule]; rather, the elements of the crimes charged are considered objectively, abstracted from the facts" [citation omitted]); Commonwealth v. Crocker, 384 Mass. 353, 360 (1981) ("In order to determine whether the Legislature in a given situation has authorized conviction and sentence under two statutory offenses, the Morey test provides a fitting rule of interpretation"); Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 126 (2010), abrogated on ot

2024See Commonwealth v. Jones, 441 Mass. 73, 76 (2004) (under Morey test "[t]he actual criminal acts alleged are wholly irrelevant to application of [the rule]; rather, the elements of the crimes charged are considered objectively, abstracted from the facts" [citation omitted]); Commonwealth v. Crocker, 384 Mass. 353, 360 (1981) ("In order to determine whether the Legislature in a given situation has authorized conviction and sentence under two statutory offenses, the Morey test provides a fitting rule of interpretation"); Commonwealth v. Buckley, 76 Mass. App. Ct. 123, 126 (2010), abrogated on ot

2023See Commonwealth v. Porro, 458 Mass. 526, 534 (2010) (noting relevance, in application of Morey test, of "Legislature's statutory grouping" of offenses); Commonwealth v. Crocker, 384 Mass. 353, 361 (1981) (for purposes of discerning legislative intent, placement of crimes in different chapters of General Laws "further[s] distinct legislative policies").

2009See Whalen v. United States, 445 U.S. at 692-695 .

2009See Whalen v. United States, 445 U.S. at 692-695 .

2009See Commonwealth v. King, 445 Mass. 217, 225 (2005), cert, denied, 546 U.S. 1216 (2006) (convictions of greater and lesser included offenses “must rest on separate and distinct acts”); Commonwealth v. Sanchez, 405 Mass. 369,381-382 (1989) (conduct-based analysis appropriate where crimes charged are greater and lesser offenses); Commonwealth v. Gallant, supra at 413-416 (distinguishing Morey test from conduct-based analysis); Commonwealth v. Pileeki, 62 Mass. App. Ct. 505, 515-517 (2004) (Brown, J., concurring in result) (same); Commonwealth v. Howze, 58 Mass. App. Ct. 147 , 152-153 & n.7 (2003

2009See Commonwealth v. King, 445 Mass. 217, 225 (2005), cert, denied, 546 U.S. 1216 (2006) (convictions of greater and lesser included offenses “must rest on separate and distinct acts”); Commonwealth v. Sanchez, 405 Mass. 369,381-382 (1989) (conduct-based analysis appropriate where crimes charged are greater and lesser offenses); Commonwealth v. Gallant, supra at 413-416 (distinguishing Morey test from conduct-based analysis); Commonwealth v. Pileeki, 62 Mass. App. Ct. 505, 515-517 (2004) (Brown, J., concurring in result) (same); Commonwealth v. Howze, 58 Mass. App. Ct. 147 , 152-153 & n.7 (2003

2009See also Commonwealth v. Gallarelli, supra at 578 (disapproving adoption of “same transaction” rule and concluding that court was not “inclined as a matter of policy to modify [its] approval of the ‘same evidence’ rule as first clearly enunciated in Morey”); Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 709-710 (2009) (Cypher, J., dissenting in part) (analyzing development of line of case departing from doctrinal principles of Morey and Blockburger); Commonwealth v. Gallant, 65 Mass. App. Ct. 409, 414-415 (2006) (stating that “it is difficult to see how such a conduct-based test could ever

2009See also Commonwealth v. Gallarelli, supra at 578 (disapproving adoption of “same transaction” rule and concluding that court was not “inclined as a matter of policy to modify [its] approval of the ‘same evidence’ rule as first clearly enunciated in Morey”); Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 709-710 (2009) (Cypher, J., dissenting in part) (analyzing development of line of case departing from doctrinal principles of Morey and Blockburger); Commonwealth v. Gallant, 65 Mass. App. Ct. 409, 414-415 (2006) (stating that “it is difficult to see how such a conduct-based test could ever

2009See Blockburger, supra at 304 , quoting from Gavieres v. United States, 220 U.S. 338, 342 (1911), quoting from Morey v. Commonwealth, 108 Mass, at 434: “A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” While the language “proof of an additional fact” has been the source of some confusion for courts applying the Blockburger test, the Supreme Court has since explained that “[t]he same

2009See Blockburger, supra at 304 , quoting from Gavieres v. United States, 220 U.S. 338, 342 (1911), quoting from Morey v. Commonwealth, 108 Mass, at 434: “A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.” While the language “proof of an additional fact” has been the source of some confusion for courts applying the Blockburger test, the Supreme Court has since explained that “[t]he same

2009See Commonwealth v. King, 445 Mass. 217, 225 (2005), cert, denied, 546 U.S. 1216 (2006) (convictions of greater and lesser included offenses “must rest on separate and distinct acts”); Commonwealth v. Sanchez, 405 Mass. 369,381-382 (1989) (conduct-based analysis appropriate where crimes charged are greater and lesser offenses); Commonwealth v. Gallant, supra at 413-416 (distinguishing Morey test from conduct-based analysis); Commonwealth v. Pileeki, 62 Mass. App. Ct. 505, 515-517 (2004) (Brown, J., concurring in result) (same); Commonwealth v. Howze, 58 Mass. App. Ct. 147 , 152-153 & n.7 (2003

2009See also Commonwealth v. Gallarelli, supra at 578 (disapproving adoption of “same transaction” rule and concluding that court was not “inclined as a matter of policy to modify [its] approval of the ‘same evidence’ rule as first clearly enunciated in Morey”); Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 709-710 (2009) (Cypher, J., dissenting in part) (analyzing development of line of case departing from doctrinal principles of Morey and Blockburger); Commonwealth v. Gallant, 65 Mass. App. Ct. 409, 414-415 (2006) (stating that “it is difficult to see how such a conduct-based test could ever

2009See also Commonwealth v. Gallarelli, supra at 578 (disapproving adoption of “same transaction” rule and concluding that court was not “inclined as a matter of policy to modify [its] approval of the ‘same evidence’ rule as first clearly enunciated in Morey”); Commonwealth v. Niels N., 73 Mass. App. Ct. 689, 709-710 (2009) (Cypher, J., dissenting in part) (analyzing development of line of case departing from doctrinal principles of Morey and Blockburger); Commonwealth v. Gallant, 65 Mass. App. Ct. 409, 414-415 (2006) (stating that “it is difficult to see how such a conduct-based test could ever

2006In Commonwealth v. Wolinski, 431 Mass. 228, 238-239 (2000), for example, the Supreme Judicial Court first employed the Morey test for the purpose of determining that the crimes charged had mutually exclusive elements, and so multiple convictions based on a single act would be permissible.

2006In Commonwealth v. Wolinski, 431 Mass. 228, 238-239 (2000), for example, the Supreme Judicial Court first employed the Morey test for the purpose of determining that the crimes charged had mutually exclusive elements, and so multiple convictions based on a single act would be permissible.