Supreme Judicial Court of Massachusetts, Middlesex
Heard: March 10, 2017.
found and returned in the Superior Court Department on
December 22, 2009.
cases were tried before Sandra L. Hamlin, J.
H. Mirsky for the defendant.
Melissa Weisgold Johnsen, Assistant District Attorney, for
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, &
Cypher, JJ. 
address, in this opinion, the scope of criminal liability
under the common-law felony-murder rule. The charges stem
from an attempted armed robbery and home invasion into a
Lowell townhouse shared by Hector and Tony Delgado. Two armed
gunmen fatally shot the brothers during the botched robbery.
The defendant was not present at the scene. The Commonwealth
alleged that the defendant was liable as an accomplice to
felony-murder because he supplied one of the gunmen with a
pistol and provided hooded sweatshirts to the intruders to
help them conceal their identities. A Superior Court jury
convicted the defendant of two counts of felonymurder in the
first degree based on the predicate felonies of an attempted
commission of armed robbery, home invasion, unlawful
possession of a firearm, and unlawful possession of
defendant raises the following claims on appeal: (1) the
Commonwealth failed to produce sufficient evidence to prove
that he was a knowing participant in the felony-murders; (2)
the judge provided erroneous instructions on shared intent
and accomplice liability; (3) portions of the
prosecutor's opening statement and closing argument were
improper; (4) the judge should have excluded prejudicial
evidence of prior misconduct; (5) the judge asked improper
voir dire questions of potential jurors; and (6) we should
abolish the felony-murder rule. The defendant also asks us to
order a new trial under our extraordinary authority pursuant
to G. L. c. 278, § 33E.
conclude that the Commonwealth introduced sufficient evidence
to prove that the defendant knowingly participated in the
underlying felonies and, therefore, was an accomplice to
felony-murder. We conclude also that the defendant's
other challenges do not raise error warranting reversal or a
new trial as to any of the convictions. Nonetheless, in the
circumstances of this case, we are convinced that, pursuant
to our authority under G. L. c. 278, § 33E, the
interests of justice require that the degree of guilt be
reduced to that of murder in the second degree.
whether we should abolish the common-law felonymurder rule, a
unanimous court concludes that the felony-murder rule is
constitutional. However, a majority of Justices, through the
concurrence of Chief Justice Gants, conclude that the scope
of felony-murder liability should be prospectively narrowed,
and hold that, in trials that commence after the date of the
opinion in this case, a defendant may not be convicted of
murder without proof of one of the three prongs of malice. As
a result, in the future, felony-murder is no longer an
independent theory of liability for murder. Rather,
felony-murder is limited to its statutory role under G. L. c.
265, § 1, as an aggravating element of murder,
permitting a jury to find a defendant guilty of murder in the
first degree where the murder was committed in the course of
a felony punishable by life imprisonment even if it was not
committed with deliberate premeditation or with extreme
atrocity or cruelty. Because the majority holding as to
common-law felony-murder liability is prospective in effect,
it does not affect the judgment reached in this case. Because
I disagree with that holding, I write separately in a
concurrence to explain my reasoning.
the defendant challenges the sufficiency of the evidence of
the extent of his involvement in the armed home invasion, and
his shared intent to commit that crime, we recite the facts
the jury could have found in some detail.
evening of October 22, 2009, the defendant was a passenger in
a green Honda Civic automobile that was being driven around
the Pawtucketville section of Lowell. The other occupants of
the vehicle were his friends Ariel Hernandez, Giovanni Hill,
and Darien Doby. Hernandez was the driver. Hill was in the
front passenger seat, and the defendant and Doby shared the
rear passenger seat. Hernandez drove past two men walking on
the street and raised the possibility of robbing them. The
passengers convinced Hernandez not to do so.
time later, Hill and Hernandez noticed two women walking down
the street. Hernandez pulled into a side street and parked.
Hill and Hernandez got out of the vehicle and Hernandez
removed a firearm from the trunk. The two rounded the corner
and confronted the women while the defendant and Doby waited
in the vehicle. Hill stood and watched from a few feet away
as Hernandez, gun in hand, grabbed their purses. The two men
returned to the vehicle, and Hernandez drove away, with the
purses and the handgun in his lap. He stopped at a
friend's house to exchange the green hooded sweatshirt he
had been wearing for a black sweatshirt without a hood.
defendant, Doby, and Hill left the friend's house, while
Hernandez stayed behind. The four men later met at the
defendant's one-bedroom apartment. Hernandez stashed the
handgun he had used in the robbery (a nine millimeter pistol)
in a kitchen cabinet above the refrigerator. He rifled
through the purses, pulling out cash, driver's licenses,
and automated teller machine (ATM) cards. Hernandez found
what appeared to be a passcode for one of the ATM cards
written on a scrap of paper, and sent Hill to a bank to
attempt to withdraw money with the card. Before he left, Hill
borrowed the defendant's black sweatshirt so he could
change out of the jacket he had worn during the robbery. When
he returned, Hill reported that he had been unsuccessful in
withdrawing any money.
at approximately 12:15 A.M., two cousins, Jamal and Karon
McDougal, visited the defendant's
apartment. They were joined by one of their friends,
Joshua Silva. While gathered in the kitchen with the
defendant, Jamal asked Hernandez if he wanted to participate
in robbing someone who owed money to one of Jamal's
friends. Karon predicted that the robbery would be
"pretty easy." He warned the others, however, that
they were going to rob two "pretty big guys" who
worked in bars.Hernandez agreed to participate in the
robbery. Silva joined them as the getaway driver.
Silva agreed to participate, Hernandez urged, "If
we're going to do it, let's go do it now."
Hernandez retrieved his gun from the kitchen cabinet, looked
it over, and tucked it inside his waistband. Still wearing
the hoodless black sweatshirt he had changed into after the
earlier robbery, Hernandez asked the defendant for a hooded
sweatshirt so that he could "hide his face." The
defendant provided Hernandez with a hooded sweatshirt with a
front zipper. Hernandez complained that the zipper was broken
and that some part of his shirt would be visible. The
defendant then gave Hernandez a black and red pullover-style
hooded sweatshirt with a white Red Sox "B" logo on
the front. Jamal and Karon also borrowed hooded sweatshirts
from the defendant.
leaving, Jamal asked to borrow the defendant's
"burner" (gun). At first, the defendant hesitated,
stating his concern that something might happen to his gun.
Hernandez and Karon then urged the defendant to allow Jamal
to borrow the gun, promising that "nothing's going
to happen to it." The defendant eventually gave Jamal a
.380 pistol that had been stored underneath his bed.
Karon, Hernandez, and Silva left the defendant's
apartment and drove in Silva's Toyota Camry automobile to
the victims' townhouse. Silva drove, and Jamal gave
directions. After Silva parked on a nearby side street,
Jamal, Karon, and Hernandez got out and approached the
townhouse, while Silva waited in the vehicle. Shortly after 1
A.M., the occupants of the townhouse heard loud banging on
the front door. From a fourth-floor window, Tony called out,
"Who's there?" A voice that sounded female
responded "Nicole, " or "Nicki." Tony
went downstairs and opened the front door. His housemates
heard a scuffle at the bottom of the stairs near the door,
then Jamal and Hernandez chased Tony up the stairs into the
second-floor living room.
visitor had been sleeping on the living room couch. He saw
Jamal threaten Tony with a gun, demanding, "Where's
everything?" Tony responded that "[a]11 [he] see[s]
visitor was unable to identify Jamal, whose face was obscured
by a hooded sweatshirt. Hector and one of his roommates,
Brian Staples, headed downstairs from their third-floor
bedrooms and entered the living room. At that point, Jamal
had Tony in a headlock and was pointing the gun at his
head. Hernandez rushed toward Staples,
brandishing a gun, and ordered him upstairs. Staples and
Hector ran upstairs to hide. Tony managed to break free from
Jamal and also ran up the stairs. Jamal and Hernandez
his hiding place, Staples heard Hector's door being
kicked in, followed by an argument, and then gunshots. Once
the shooting stopped, Hector was found lying face up on his
bed, gasping for air. He had been shot three times and
shortly thereafter died of multiple gunshot wounds. Tony,
fatally shot in the abdomen, managed to stagger to the fourth
floor, where he was treated at the scene before he died.
Police recovered five nine millimeter cartridge casings from
the gunshots, Jamal and Hernandez ran outside, cheering and
exchanging "high fives." They met up with Karon and
Silva, and drove back to the defendant's apartment. En
route to the apartment, Jamal and Hernandez informed Karon
that they had been unable to steal anything. Jamal remarked
that Hernandez was a good shot, and Hernandez responded,
"Yeah, once I seen them jump on you, I just started
shooting." Jamal returned the defendant's gun to
him. Hernandez asked the defendant if he could leave his own
gun at the defendant's apartment. When the defendant said
no, Hernandez gave the gun to Hill, and told him to put it in
the trunk of the Honda Civic. Jamal, Karon, and Hernandez
removed the borrowed sweatshirts and left them in the
defendant's living room.
an hour of the shootings, Lowell police spotted Hernandez
driving the green Honda Civic that had been used in the
earlier robbery. They stopped the vehicle, arrested Hernandez
and Hill, and found the gun Hernandez had used in the
shooting hidden in the trunk.
interviewed the defendant on October 24 and 25, 2009. He
initially told police that he had purchased a .380 handgun
"for protection, " which he kept under his
mattress. Eventually, the defendant admitted to having given
this gun to Hernandez and the other men on the evening of the
shootings. The defendant first said that he did not know what
Hernandez and the other men were going to do with the gun.
Eventually he stated that he believed they were going to rob
someone, based on conversations that he overheard inside his
apartment and the fact that Hernandez had robbed two women
earlier that evening.
defendant was indicted on two counts charging murder in the
first degree in the deaths of Hector and Tony Delgado, home
invasion, unlawful possession of a firearm, and unlawful
possession of ammunition. The defendant was tried before a
Superior Court jury on the theory of felonymurder with the
underlying offenses of attempted armed robbery and home
invasion as the predicate felonies. The jury convicted the
defendant on all charges.
defendant's primary argument on appeal is that the
Commonwealth failed to produce sufficient evidence to prove
that he participated in the underlying felonies, i.e., that
he shared the intent of the other participants to commit an
armed robbery. He also argues that the judge erroneously
instructed the jury on the issues of shared intent and
accomplice liability; portions of the prosecutor's
opening statement and closing argument were improper; the
judge abused her discretion by allowing the introduction of
evidence of uncharged misconduct; and, during voir dire, the
judge asked potential jurors an impermissible question. The
defendant contends also that this court should abolish the
felony-murder rule. In addition, he asks us to exercise our
extraordinary authority under G. L. c. 278, § 33E, to
reverse the murder convictions as against the weight of
evidence. We address each argument in turn.
Sufficiency of the evidence.
reviewing the denial of a motion for a required finding of
not guilty, we apply the familiar Latimore standard.
See Commonwealth v. Latimore, 378 Mass. 671, 677-678
(1979). "[The] question is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt."
Id. at 677, quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979) . Under this standard of review, we
resolve issues of witness credibility in favor of the
Commonwealth. Commonwealth v. Dilone, 385 Mass. 281,
286 (1982). In determining whether a reasonable jury could
find each element of the crime charged, we also do not weigh
the supporting evidence against conflicting evidence.
Commonwealth v. Lao, 443 Mass. 770, 779 (2005) .
convict the defendant of felony-murder on a theory of
accomplice liability, the Commonwealth was required to prove
beyond a reasonable doubt that the defendant knowingly
participated in the commission of one of the underlying
felonies, alone or with others, with the intent required for
that offense. Commonwealth v. Zanetti, 454
Mass. 449, 466 (2009). See Commonwealth v. Silva,
471 Mass. 610, 621 (2015) (Commonwealth required to prove
defendant's "knowing participation in some manner in
the commission of the offense" together with shared
intent); Commonwealth v. Akara, 465 Mass. 245, 253
(2013) (court considers whether defendant actively
participated in events leading to victims' deaths);
Marshall v. Commonwealth, 463 Mass. 529, 536-537
(2012) (conduct that historically had been described as
accessory before fact "plainly falls under the rubric of
accomplice liability"). In this case, where the
predicate felonies were attempted armed robbery and armed
home invasion, the Commonwealth also was required to prove
that the defendant knew that one of his accomplices possessed
a firearm. Commonwealth v. Garcia, 470 Mass. 24, 31
participation in a criminal offense "may take any of
several forms, " and includes providing "aid or
assistance in committing the crime." Zanetti,
454 Mass. at 470 (Appendix). To establish guilt on a theory
of accomplice liability, the Commonwealth is not required to
prove that a defendant was physically present at the scene of
the offense. Commonwealth v. Ortiz, 424 Mass. 853,
858-859 (1997). A defendant may be convicted as a coventurer
when he or she is not present at the scene of a crime
"so long as the jury [find] [that the defendant] had
actually associated [himself or herself] with the criminal
venture and assisted in making it a success."
Commonwealth v. Silanskas, 433 Mass. 678, 690 n.13
(2001), quoting Ortiz, supra. See
Commonwealth v. Hanright, 466 Mass. 303, 310 (2013)
("[C]omplicity in the underlying felony is sufficient to
establish guilt of [felony-murder] if the homicide followed
naturally and probably from the carrying out of the joint
enterprise" [citation omitted]); Commonwealth v.
Benitez, 464 Mass. 686, 690 n.6 (2013) ("a person
need not be physically present at the scene of the crime in
order to participate as a joint venturer").
not agree with the defendant's contention that the
evidence, at best, established that he was present inside an
apartment where others planned a robbery, and that his mere
"acquiescence in a request to produce clothing or a
firearm does not confer joint venture liability." There
was sufficient evidence from which a reasonable jury could
have found beyond a reasonable doubt that the defendant
knowingly participated in the predicate felonies. He was
present in his apartment when Jamal and Karon openly
solicited others to help rob "the pretty big"
"Puerto Rican guy." Hernandez agreed to join the
robbery, announced that he would use his own gun, and
retrieved it from its hiding place inside the defendant's
kitchen cabinet. Jamal then asked to borrow the
defendant's gun. The defendant expressed concern over the
possibility that something would happen to it. Karon and
Hernandez urged the defendant to lend the gun to Jamal,
assuring him, "Nothing is going to happen to it."
The defendant agreed and gave Jamal the gun.
statement to police, the defendant admitted that he gave the
gun to Hernandez and the other men knowing that it was going
to be used in a robbery. See Benitez, 464 Mass. at
690 (act of providing accomplice with gun supports finding
that defendant knowingly and actively participated in armed
robbery); Commonwealth v. Melton, 436 Mass. 291, 301
(2002) (defendant's participation in joint venture
supported by evidence that he supplied firearm to shooter).
See also Commonwealth v. Gunter, 427 Mass. 259, 261,
265 (1998) (defendant who remained in vehicle while his
accomplices entered apartment and robbed rival drug dealers
actively participated in felony-murder). The jury also
reasonably could have found that the defendant gave hooded
sweatshirts to his accomplices to help them avoid detection.
Prior to the robbery, Hernandez asked the defendant for a
hooded sweatshirt so that he could "hide his face."
The defendant provided Hernandez with a hooded sweatshirt
with a front zipper. When Hernandez complained that the
zipper was broken, and that some part of his shirt would be
visible, the defendant gave him a pullover-style hooded
sweatshirt. Jamal and Karon also borrowed hooded sweatshirts
from the defendant. After the robbery, Hernandez, Karon, and
Jamal drove directly to the defendant's apartment and
returned the sweatshirts to him rather than wearing them in
also reasonable to infer that the instruments supplied by the
defendant played an important role in the underlying crimes
of attempted armed robbery and home invasion. Jamal, armed
with the defendant's pistol, forced his way into the
Delgados' townhouse. See Commonwealth v. Netto,
438 Mass. 686, 702-703 (2003) (circumstances may dictate that
weapon is necessary to overcome anticipated resistance from
victims). Once inside, Jamal used the gun to threaten Tony
and demand money and drugs. Further, the hooded sweatshirts
provided by the defendant hindered the ability of the other
occupants of the townhouse to identify the intruders.
conclude, therefore, that the jury reasonably could have
found that the defendant was an active participant in the
commission of the underlying felonies.
defendant contends that three of the judge's instructions
concerning shared intent and accomplice liability were
erroneous. First, he argues that the judge's instruction
on intent and shared intent shifted the burden of proof by
imposing a "mandatory rebuttable presumption, "
which instructed the jury that the defendant's conduct
"necessarily indicated [his] knowledge and support of
every aspect of criminal conduct that occurred." Second,
he argues that it was error for the judge to refer to the
theory of accomplice liability while instructing on the
substantive felony charges. Third, he argues that the judge
misstated the burden of proof. Because there was no objection
to these instructions, we review these claims to determine
whether there was error and, if so, whether it created a
substantial likelihood of a miscarriage of justice.
Commonwealth v. Wright, 411 Mass. 678, 681 (1992) .
first to the defendant's argument that the instruction on
intent impermissibly shifted the Commonwealth's burden of
proof to him. The defendant characterizes the following jury
instructions as having created an impermissible
"mandatory rebuttable presumption":
"[Y]ou may determine the defendant's intent from any
statement or act committed or omitted and from all the other
circumstances that indicate a state of mind provided first
you find that any or all such circumstances occurred.
"Now, the jury may but not need necessarily infer from
the conduct of a person that he intended the natural and