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Commonwealth v. Brown

Supreme Judicial Court of Massachusetts, Middlesex

September 20, 2017


          Heard: March 10, 2017.

         Indictments found and returned in the Superior Court Department on December 22, 2009.

         The cases were tried before Sandra L. Hamlin, J.

          David H. Mirsky for the defendant.

          Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ. [1]

          GAZIANO, J.

         We 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 ammunition.

         The 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.

         We 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.

         As to 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.

         1. Background.

         Because 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.

         a. Facts.

         On the 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.

         A short 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.

         The 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.

         Later, at approximately 12:15 A.M., two cousins, Jamal and Karon McDougal, visited the defendant's apartment.[2] 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.[3]Hernandez agreed to participate in the robbery. Silva joined them as the getaway driver.

         Once 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.

         Before 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.

         Jamal, 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.

         A 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] is dimes."

         The 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.[4] 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 followed him.

         From 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 Hector's bedroom.

         After 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.

         Within 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.

         Detectives 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.

         b. Prior proceedings.

         The 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.

         2. Discussion.

         The 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.

         a. Sufficiency of the evidence.

         In 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) .

         To 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.[5] 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 (2014) .

         Knowing 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").

         We do 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.

         In his 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 public.

         It is 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.

         We conclude, therefore, that the jury reasonably could have found that the defendant was an active participant in the commission of the underlying felonies.

         b. Jury instructions.

         The 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) .

         We turn 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 probabl[e] ...

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