34 N.E.3d 750
Mass. App. Ct.2015Background
- Defendant struck deliveryman Thu Nguyen with a single "sucker" punch as Nguyen ascended steps delivering food; Nguyen fell, hit his head on the sidewalk, later suffered a skull fracture and died about 15 hours after the assault.
- Defendant searched Nguyen’s pockets at the scene and stole $125 and the food; no witness observed the punch directly.
- Defendant was indicted for first‑degree murder (including a felony‑murder theory predicated on unarmed robbery) and unarmed robbery; prior appellate decision (Lopez I) reversed a trial court dismissal of the felony‑murder theory and remanded.
- On retrial the defendant was acquitted of felony‑murder but convicted of involuntary manslaughter (wanton/reckless conduct) and unarmed robbery; sentenced to 15–18 years for manslaughter plus probation for robbery.
- Defendant appealed, arguing (inter alia) insufficiency of the evidence for involuntary manslaughter, improper submission of felony‑murder (merger), erroneous jury instructions (consciousness of guilt and wording), and improper admission of a witness’s grand jury testimony.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Lopez) | Held |
|---|---|---|---|
| Sufficiency of evidence for involuntary manslaughter (wanton/reckless) | Evidence (sucker punch, fall, audible impact, subsequent gasping/foaming, theft, death) supports high likelihood of substantial harm beyond reasonable doubt | Single punch insufficient to show high likelihood of substantial harm | Affirmed: evidence sufficient; consistent with Lopez I probable‑cause findings and supports conviction beyond reasonable doubt |
| Submission of felony‑murder to jury / merger doctrine | Felony‑murder submission proper because robbery can support felony‑murder (Christian) and evidence could show conscious disregard | Merger barred felony‑murder because the force used to effect robbery was same force causing death (Bell); submission prejudiced defendant via compromise verdict | No reversible error: even if submission arguable under Bell, defendant failed to show prejudice or unjust compromise verdict; conviction stands |
| Jury instruction on consciousness of guilt | Instruction permissible; flight can be considered as consciousness of guilt when identification is at issue (Vick) | Sua sponte instruction suggested judge believed defendant fled/was perpetrator (per Groce) and prejudiced defendant | Affirmed: instruction lawful here because identification was contested and flight could be considered as consciousness of guilt |
| Admission of witness (Caba) grand jury testimony | Testimony admitted as inconsistent with witness’s trial feigned memory; admissible under Mass. G. Evid. § 801(d)(1)(A) and Sineiro | Grand jury testimony coerced; lack of counsel at grand jury and potential coercion render testimony inadmissible | Affirmed: record inadequate to show coercion or substantial risk of miscarriage of justice; claim fails and lack‑of‑counsel argument dependent on coercion not proved |
Key Cases Cited
- Commonwealth v. Lopez, 80 Mass. App. Ct. 390 (2011) (prior appellate decision finding probable cause for felony‑murder under conscious disregard theory)
- Commonwealth v. Welansky, 316 Mass. 383 (1944) (definition of involuntary manslaughter as wanton/reckless conduct involving high likelihood of substantial harm)
- Commonwealth v. Bell, 460 Mass. 294 (2011) (merger doctrine requires predicate felony conduct to be separate from lethal act)
- Commonwealth v. Christian, 430 Mass. 552 (2000) (holding armed robbery can support felony‑murder)
- Commonwealth v. Vick, 454 Mass. 418 (2009) (flight can be considered consciousness of guilt where identity is not already established)
- Commonwealth v. Sineiro, 432 Mass. 735 (2000) (admission of prior grand jury testimony where witness’s in‑court assertions are inconsistent)