492 Mass. 604
Mass.2023Background:
- On October 5, 2016, Brittany Smith and her then‑partner Joshua Hart broke into the Orange, MA home of Thomas Harty (age 95) and Joanna Fisher (age 77, wheelchair‑bound) intending to steal money and a car.
- Smith and Hart entered the garage, armed themselves (socket wrenches; Hart also used a kitchen knife), coordinated attacks on both occupants, and disabled phones and lights before leaving with victims’ property.
- Hart stabbed and suffocated Harty; both Hart and Smith assaulted Fisher (pushing her from her wheelchair, punching, stabbing, and attempting to suffocate her). Fisher initially survived but died on November 10, 2016 from her injuries.
- Smith was tried after Hart and convicted as a joint venturer of two counts of first‑degree murder (theories: deliberate premeditation, extreme atrocity/cruelty, and felony‑murder), plus multiple property and related offenses. She had sought a change of venue, which was not granted.
- On appeal Smith challenged (1) denial of change of venue based on pretrial publicity and juror impartiality, (2) sufficiency of evidence to convict her as a joint venturer of Harty’s murder, and (3) sufficiency of evidence to convict her of Fisher’s murder on the theory of deliberate premeditation.
Issues:
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Smith) | Held |
|---|---|---|---|
| Change of venue / juror impartiality | Extensive voir dire showed jurors could be impartial; no presumptive prejudice and no actual juror bias. | Pretrial publicity saturated the community and denied Smith a fair trial by an impartial jury. | Denial affirmed: no presumptive prejudice; voir dire and instructions adequately protected impartiality. |
| Sufficiency — Harty (joint venture; premeditation & extreme atrocity) | Evidence of coordinated, armed entry, contemporaneous attacks on both victims, disabling phones, theft, and flight supported knowing participation and shared murderous intent. | Smith lacked requisite intent or was too impaired by drugs to form intent; mere presence insufficient. | Conviction affirmed: evidence sufficient to show knowing participation and shared intent for deliberate premeditation and extreme atrocity. |
| Sufficiency — Harty (felony‑murder) | Killing occurred in course of armed robbery; joint venturer liability and demonstrated malice support first‑degree felony‑murder. | Smith did not have the requisite malice/intent for felony‑murder as a joint venturer. | Conviction affirmed: evidence supported felony‑murder as killing occurred during armed robbery with requisite malice. |
| Sufficiency — Fisher (deliberate premeditation) | Coordinated, armed attack on a frail, wheelchair‑bound victim supports premeditation; alternative theories (extreme atrocity, felony‑murder) also viable. | Insufficient proof Smith formed deliberate premeditated intent to kill Fisher. | Conviction affirmed: evidence sufficient for deliberate premeditation (and, in any event, other first‑degree theories remained supported). |
| G. L. c. 278, § 33E review | Record contains no basis to set aside or reduce convictions. | Requested relief under § 33E. | No relief granted after full review; judgments affirmed. |
Key Cases Cited
- Commonwealth v. Toolan, 460 Mass. 452 (procedure for presumptive prejudice and venue review)
- Commonwealth v. Hoose, 467 Mass. 395 (totality of circumstances and importance of voir dire in publicity cases)
- Commonwealth v. Morales, 440 Mass. 536 (prior knowledge of crime does not require juror exclusion)
- Bruton v. United States, 391 U.S. 123 (confrontation concerns from codefendant statements)
- Commonwealth v. Watson, 487 Mass. 156 (joint venturer liability and required shared criminal intent)
- Commonwealth v. Brown, 477 Mass. 805 (felony‑murder principles and malice requirement)
- Commonwealth v. Tavares, 471 Mass. 430 (premeditation can form in seconds)
- Commonwealth v. Ayala, 481 Mass. 46 (sufficiency review standard)