Heard: March 9, 2018.
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.
H. Cunha, Jr. (Charles Allan Hope also present) for the
Catherine L. Semel, Assistant District Attorney, for the
Present: Gants, C.J., Gaziano, Budd, & Kafker, JJ.
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. We affirm and decline to grant
extraordinary relief pursuant to G. L. c. 278, § 33E.
summarize the facts the jury could have found, reserving
certain details for discussion of the issues.
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.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.
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.
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.
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.
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 ...