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Commonwealth v. Buth

Supreme Judicial Court of Massachusetts, Essex

July 17, 2018

COMMONWEALTH
v.
PHAP BUTH.

          Heard: March 9, 2018.

         Indictments found and returned in the Superior Court Department on September 7, 2005. The cases were tried before Richard E. Welch, III, J., and a motion for a new trial, filed on June 17, 2015, was heard by him.

          John H. Cunha, Jr. (Charles Allan Hope also present) for the defendant.

          Catherine L. Semel, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Gaziano, Budd, & Kafker, JJ.

          BUDD, J.

         A jury in the Superior Court convicted the defendant, Phap Buth, on two indictments charging murder in the first degree for the shooting deaths of Amy Dumas and her father, Robert Finnerty. Both murder indictments were based on a theory of joint venture felony-murder, with armed home invasion as the predicate offense. On appeal, the defendant argues that, because there was insufficient evidence to show that he knew that his companions were armed, his convictions must be overturned. He also claims that the merger doctrine prevents his convictions and that the felony-murder doctrine should be abolished.[1] We affirm and decline to grant extraordinary relief pursuant to G. L. c. 278, § 33E.

         Background.

         We summarize the facts the jury could have found, reserving certain details for discussion of the issues.

         1. The crime.

         Robert and Judith Finnerty lived with their sixteen year old daughter, Amy Dumas, in Lynn. After suffering a stroke, Robert was partially paralyzed and unable to work.[2]Judith left her full-time job to care for Robert, and began selling marijuana to family, friends, and "people that [she] knew" to earn money.

         Shortly after 11 £.M- on May 16, 2005, the defendant knocked at the Finnertys' door, seeking to purchase marijuana. Although Judith had sold marijuana to the defendant on other occasions, she informed him that she no longer sold it, but would "do it this one time." The defendant entered the apartment, purchased a bag of marijuana, and left.

         Within seconds, the defendant returned to the Finnertys' door and knocked again. Judith opened the door partway to speak to the defendant, who asked to purchase additional marijuana. When she refused, he swung open her door and stepped back out of the way, making room for two other individuals wearing black clothes, black gloves, and ski masks to enter. As Judith ran toward her husband to protect him, she fell to the floor. When she looked up, she saw the assailants standing with guns in their hands. She began screaming for help. Robert raised his walker to defend himself and was shot once in the chest. Dumas came running out of her bedroom and was shot twice in the back.

         The intruders fled after shooting the victims, and Judith ran to the door to yell for help. She saw the defendant standing at the end of the driveway, looking back and forth. When the defendant saw Judith, he "smirk[ed]." Law enforcement soon arrived at the scene; Robert and Dumas were pronounced dead a short time later.

         2. The investigation.

         A neighbor telephoned 911, alerting law enforcement to the crimes. Based on the information that Judith related to one of the officers, other officers canvassed the neighborhood, looking for an individual matching the ...


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