Lead Opinion
Wе 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 of 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 Common
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 felony-murder 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
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 crimе, 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.
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 win
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]ll [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.
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.
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, bаsed 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 felony-murder 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,
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.
Knowing participation in a criminal offense “may take any of several forms” and includes providing “aid or assistance in com
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,
It also is 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,
We conclude, therefore, that the jury reasonably could have found that the defendant was an active рarticipant 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
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 re-buttable 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 ah such circumstances occurred.
“Now, the jury may but not need necessarily infer from the conduct of a person that he intended the natural and prob-abl[e] consequences of his own acts.
“[T]he Commonwealth must also prove beyond a reasonable doubt that at the time the defendant knowingly participated in the commission of the crime and, as I’ve indicated, the felonies involved are attempted armed robbery and home invasion, that he possessed or shared the intent required for that crime. And when I define the essential elements, I’m going to be telling you what the intent is. You’re permitted but not required to infer the defendant’s mental state or intent, from his knowledge of the circumstances and any subsequent participation in the crime. The inferences you draw must be reasonable and you may rely upon your experience and common sense in determining the defendant’s knowledge or intent.”
The due process clause of the Fourteenth Amendment to the United States Constitution requires the Commonwealth to prove every essential element of the offense beyond a reasonable doubt. Matter of Winship,
As the United States Supreme Court noted in Francis,
To the contrary, here, rather than being “cast in the language of command,” the challenged instructions were permissive. The judge instructed that intent and knowledge ordinarily cannot be proved by direct evidence, and then added, “[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” (emphasis supplied). She then continued, “[T]he jury may but not need necessarily infer from the conduct of a person that he intended the natural and probabl[e] consequences of his own acts” (emphasis supplied). The judge instructed as follows on shared intent: “You’re permitted but not required to infer the defendant’s mental state or intent, from his knowledge of the circumstances and any subsequent participation in the crime” (emphasis supplied). See Hill v. Maloney,
Such permissive intent instructions do not run up against a defendant’s right to due process. See Commonwealth v. Van Winkle,
The defendant argues that the judge’s instructions on attempted armed robbery and home invasion were erroneous because she improperly linked the phrase “aider and abettor” with the definition of the elements of the underlying offenses. The defendant contends that “[t]hese instructions were confusing and implied that the jury should presume that the defendant was an aider and abettor, with the requisite knowledge and intent pertaining to home invasion and attempted armed robbery.” There was no error.
Before defining the elements of each underlying offense, the judge explained, “[W]henever I say the defendant, I always mean as an aider or abettor or a joint venturer.”
In his third claim of error in the instructions, the defendant argues that the judge made a misstatement at the end of her instructions on the predicate offenses, when she said, “If after
c. Prosecutor’s opening statement and closing argument. The defendant maintains that the prosecutor misstated the evidence, both in her opening statement and in her closing argument. For instance, the defendant points to the prosecutor’s asserted improper argument that the defendant ‘“planned and executed” the attempted armed robbery and the home invasion. The defendant contends that the prosecutor misstated the evidence by arguing that ‘“but for” the defendant’s participation, the crimes would not have occurred.
We begin with the prosecutor’s opening statement. Because defense counsel timely objected, we review for prejudicial error. See Commonwealth v. Santiago,
The purpose of an opening statement is to ‘“outline in a general way the nature of the case which the counsel expects to be able to prove or support by evidence” (citation omitted). Commonwealth v. Fazio,
The defendant raises a similar argument with respect to the prosecutor’s closing, which carried on the sports analogy. Because trial counsel did not object, we consider whether any of the
In closing, the prosecutor urged the jury to draw an inference, based on the evidence, that the defendant knew about the intended robbery and was an active participant in it. She pointed out that the defendant was aware that Hernandez had robbed two women earlier in the evening, the defendant was present when the men discussed robbing the two victims, and he knew that Hernandez would be bringing his gun to the robbery. The prosecutor described the defendant’s role as providing “the tools to the rest of the team to effectuate this armed robbery and home invasion.” This was not beyond the bounds of permissible advocacy.
The defendant contends also that a portion of the prosecutor’s closing argument misstated the evidence. While discussing Hernandez’s attempt to hide his gun in the defendant’s apartment after the attempted robbery, the proseсutor said the defendant “knew that that gun was just used in a crime. The crime that he helped plan.” The defendant maintains that this statement “reiterated the false theme that [he] was a planner whose role was critical.” In the context of the closing argument as a whole, however, see Commonwealth v. Foxworth,
d. Evidence of uncharged prior misconduct. The defendant maintains that the judge abused her discretion in allowing the introduction of evidence of the prior armed robbery, as well as photographs showing the defendant and an accomplice brandishing handguns. The defendant argues that this evidence “over
Evidence of a defendant’s prior or subsequent bad acts is not admissible to show ‘“bad character or criminal propensity.” Commonwealth v. Lally,
In the circumstances here, the judge did not abuse her discretion in allowing the introduction of evidence concerning the armed robbery earlier in the afternoon on the day of the killing, while the defendant waited in the vehicle; such evidence was probative of Hernandez’s intent to rob the Delgado brothers, and the defendant’s shared intent to participate in that crime by supplying the guns and the means for potential disguise. Indeed, in his statement to police, the defendant admitted that, as a result of the earlier robbery, he believed Hernandez and the others intended to commit another armed robbery at the time he handed them his gun.
We also discern no error in the introduction of the photographs showing the defendant brandishing his gun. The photographs were introduced to establish his access to a weapon that was used in the commission of the underlying felonies — the armed home invasion and the attempted armed robbery. See Commonwealth v. Corliss,
e. Jury voir dire. During a pretrial hearing, the judge informed counsel that she intended to ask the venire a question concerning joint venture liability. Defense counsel responded, “Yes, I think that would be fine, Judge.” At trial, the judge asked potential jurors, “Is there anything about the concept of aiding аnd abetting that would prohibit your ability to listen and apply the law as I will explain it to you at the conclusion of the trial and be a fair and impartial juror?” The defendant did not object.
On appeal, the defendant contends that this question reduced the Commonwealth’s burden of proof and “ensur[ed] a jury predisposed to find [him] guilty.” Because the issue is unpreserved, we review to determine whether asking the question was erroneous and, if so, whether it created a substantial likelihood of a miscarriage of justice. Wright,
During jury selection, a judge is required to “examine jurors fully regarding possible bias or prejudice where ‘it appears that there is a substantial risk that jurors may be influenced by factors extraneous to the evidence presented to them.’ ” Commonwealth v. Perez,
We do not share the defendant’s view that the disputed question predisposed the jury to convict the defendant. A question may not be introduced if it “commit[ted] the jury to a verdict in advance” or “[had] the effect of identifying and selecting jurors who were predisposed to convicting the defendant based on evidence the Commonwealth would present.” Gray,
At the beginning of jury selection, the judge provided the members of the venire with a prelintinary instruction that the
f. Abolition of the felony-murder rule. The felony-murder rule “imposes criminal liability for homicide on all participants in a certain common criminal enterprise if a death occurred in the course of that enterprise.” Hanright,
Felony-murder is a common-law crime.
We consistently have rejected the argument that the felony-murder rule is unconstitutional, see Commonwealth v. Moran,
More recently, in Commonwealth v. Tejeda,
g. Review under G. L. c. 278, § 33E. The defendant asks also that we exercise our authority under G. L. c. 278, § 33E, to grant him a new trial because the felony-murder verdicts, ‘“as indicated by the prosecutor’s reliance on innuendo and misrepresentation,” were against the weight of the evidence. We have carefully reviewed the entire record pursuant to our duty under G. L. c. 278, § 33E, and conclude that the verdicts of felony-murder were neither contrary to our joint venture felony-murder jurisprudence nor against the weight of the evidence.
Our authority under G. L. c. 278, § 33E, however, also requires us to consider whether the convictions of murder in the first degree are consonant with justice. Commonwealth v. Gould,
We are cognizant that the court’s authority under G. L. c. 278, § 33E, should be used sparingly and with restraint. See Commonwealth v. Lannon,
Nonetheless, we have recognized that “the doctrines of felony-murder and joint venture may, on some hypothetical fact patterns, produce a conviction of murder in the first degree that would appear out of proportion to a defendant’s culpability.” Commonwealth v. Rolon,
4. Conclusion. The verdicts of murder in the first degree and the sentences imposed are vacated and set aside. The matter is remanded to the Superior Court where verdicts of guilty of murder in the second degree are to be entered, and the defendant is to be sentenced accordingly. The defendant’s remaining convictions are affirmed.
So ordered.
Notes
Because they share a last name, we refer to Jamal and Karon McDougal by their' first names.
In addition to his full-time job. Hector, one of the victims, worked part time as a doorman at a local bar. Tony, the other victim, managed that bar and supplemented his income by selling small “dime bag” quantities of marijuana from the townhouse in Lowell where the brothers and their housemates lived.
Jamal and Hernandez told Silva, the getaway driver, that Staples had been unable to see the face of the person who grabbed Tony because the assailant “had the hood on.” Staples, however, had been able to see a portion of the other intruder’s face. He described the individual as dark skinned with a scruffy goatee, and he later identified Hernandez from a photographic array.
As for the substantive offenses, to support a finding of guilt of armed robbery requires proof that the defendant (or an accomplice) while armed with a dangerous weapon assaulted the victim and took money or property from the victim with the intent (or shared intent) to steal it. Commonwealth v. Williams,
For example, at the beginning of her instructions on home invasion, the judgе explained:
“To prove the defendant guilty of the crime of home invasion, the Commonwealth must convince you the jury of four elements beyond a reasonable doubt. That the defendant as an aider and abettor unlawfully entered the dwelling house of another. In other words, he doesn’t have to physically go there himself if he aided/abetted the entry.”
The defendant also argues that the prosecutor misstated the evidence by arguing that Jamal entered the townhouse because he was armed with the defendant’s pistol; Hernandez participated in the robbery because he wore a hoodie supplied by the defendant; and nobody would have entered the townhouse unless the defendant had supplied a firearm and disguises. There was no error. The Commonwealth was entitled to analyze the evidence and suggest reasonable inferences that the jury could draw from that evidence. Commonwealth v. Cole,
Felony-murder also falls within the province of G. L. c. 265, § 1, which establishes two degrees of murder. That statute provides: “Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree. Murder which does not appear to be in the first degree is murder in the second degree.” General Laws c. 265, § 1, was enacted to “mitigate the harshness of the common law rule imposing a mandatory death penalty on all murderers.” Commonwealth v. Paulding,
Concurrence Opinion
(concurring, with whom Lenk, Hines, and Budd, JJ., join). I agree with the court that, where the defendant’s only
As noted in the opinion of the court, following the issuance of this concurring opinion, which is joined by three other Justices, a conviction of felony-murder will require a finding of actual malice, not merely constructive malice. As a result, felony-murder will no longer be an independent theory of liability for murder. Rather, felony-murder will be 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 neither premeditated nor committed with extreme atrocity or cruelty but was committed in the course of a felony punishable by life imprisonment.
The court correctly concludes that, under our existing common law, the defendant committed felony-murder in the first degree: he knowingly aided and abetted the commission of a life felony (attempted armed robbery and home invasion), in which his accomplices killed two victims. Under our existing common law of felony-murder, it is legally irrelevant that the defendant was not present at the scene of the attempted armed robbery; he is criminally responsible for every act resulting in death committed by his accomplices during the attempted commission of the armed robbery. See Commonwealth v. Tejeda,
We have long recognized that ‘“[t]he common law felony-murder rule is of questionable origin.” Commonwealth v. Matchett,
“By the time of the American Revolution, the rule that an accidental death in the course of any felony was murder had become a standard theme in scholarly writing about the common law of homicide .... Yet no English court had ever actually aрplied such a rule. ... By the end of the eighteenth century, some judges thought cofelons were automatically implicated in any murder committed in attempt of a felony, but most judges required participation in or encouragement of the act causing death.”
Binder, The Origins of American Felony Murder Rules, 57 Stan. L. Rev. 59, 98 (2004). An analysis of early American cases leads to a similar conclusion — in most instances murder liability was imposed only where there was independent proof of malice. See id. at 193-194.
The absence of any clear preexisting concept of “felony-murder” also becomes evident when examining the provenance of the Massachusetts murder statute. In 1784, Massachusetts enacted a statute providing “[tjhat whosoever shall commit wilful murder, of malice aforethought, . . . shall suffer the pains of death.” St. 1784, c. 44. It was only in 1858 that the Massachusetts Legislature established two degrees of murder, and provided that the degree of murder is to be found by the jury. St. 1858, c. 154, §§ 1, 2. “The legislative documents that precede the enactment of St. 1858, c. 154, suggest that murder was divided into degrees largely to mitigate the harshness of the common law rule imposing a mandatory death penalty on all murderers.” Commonwealth v. Dickerson,
It is not surprising that the first Massachusetts statute that refers to murder in the commission of a felony treated it simply as an aggravating element that made the murder worthy of the death penalty. In the vast majority of the cases where a victim was killed during the commission of a felony, the defendant had killed the victim in furtherance of the crime or to facilitate his or her escape, and intended to kill or to commit grievous bodily harm, so there was no need for a distinct theory of felony-murder that substituted the intent to commit the underlying felony for the malice necessary for a murder conviction. In these cases, the killing already met the definition of murder. See Binder, supra at 65-66. Nor is it surprising that this statute included only “an attempt to commit any crime punishable with imprisonment for life,” rather than the commission of a completed crime.
The first Supreme Judicial Court case that specifically addressed the issue of liability for a death occurring during the commission of a felony (felony-murder liability)
The Campbell opinion identifies two principles of law on which our common law of felony-murder liability rests that we reject elsewhere in our criminal jurisprudence: vicarious substantive criminal liability for every act committed by a joint venturer, and the conclusive presumption of malice from the intent to commit an inherently dangerous felony. See Tejeda,
The first of these principles is the rule of law that a person engaged in a criminal joint venture is criminally liable for all the acts of his or her accomplices committed in furtherance of the joint venture. This rule was adopted by the United States Supreme Court in Pinkerton v. United States,
We no longer adhere to this Pinkerton theory of accomplice liability. See Commonwealth v. Stasiun,
‘“While it has been said that a conspiracy is a ‘partnership in crime’ (United States v. Socony-Vacuum Oil Co., Inc., 310*830 U.S. 150, 253 [(1940)]), that metaphor should not be pressed too far. It does not follow that such a partnership is governed by the same principles of vicarious liability as would apply in civil cases. Our criminal law is founded on the principle that guilt, for the more serious offences, is personal, not vicarious. One is punished for his own blameworthy conduct, not that of others. Perkins on Criminal Law, 550 [(1957)]. Sayre, Criminal Responsibility for the Acts of Another, 43 Harv. L. Rev. 689 [(1930)] .... To ignore the distinction between the crime of conspiracy and the substantive offence would enable ‘the government through the use of the conspiracy dragnet to convict a conspirator of every substantive offense committed by any other member of the group even though he had no part in it or even knowledge of it.’ United States v. Sall,116 F.2d 745 , 748 (3d Cir. [1940]).”
Under our common law of joint venture liability, a defendant is criminally responsible for a crime committed by an accomplice only where the defendant knowingly participates in the crime with the intent required to commit it. Seе Commonwealth v. Zanetti,
The second principle set forth in Campbell, 1 Allen at 543 — ‘“that a person engaged in the commission of an unlawful act is legally responsible for all the consequences which may naturally or necessarily flow from it” — has evolved in our common law of felony-murder into a rule that, where a defendant commits an inherently dangerous felony, such as armed robbery, he or she is criminally responsible for the cоnsequences of every act by a joint venturer during the commission of the felony where the consequence is death. See Hanright,
We have noted that, in this regard, our common law of felony-murder is an exception to our general rule that ‘“we require proof of a defendant’s intent to commit the crime charged, and do not conclusively presume such intent from the intent to commit another crime.” Tejeda,
The consequence of this exception to ‘“the most fundamental principle of the criminal law” is that, if a defendant drops his or her firearm and accidentally shoots someone during the commission of a felony, the defendant is guilty of both the undеrlying felony and felony-murder if the shooting proves fatal. But if the
We have recognized that the application of the felony-murder rule erodes “the relation between criminal liability and moral culpability.” Matchett,
Thus, a defendant who commits an armed robbery as a joint venturer will be found guilty of murder where a killing was committed in the course of that robbery if he or she knowingly participated in the killing with the intent required to commit it — that is, with the intent either to kill, to cause grievous bodily harm, or to do an aсt which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result. Model Jury Instructions on Homicide 57 & n.131 (2013), citing Commonwealth v. Earle,
We are not the first to do this. Great Britain has abolished felony-murder liability by statute, providing that “[wjhere a person kills another in the course or furtherance of some other offence, the killing shall not amount to murder unless done with the same malice aforethought ... as is required for a killing to amount to murder when not done in the course or furtherance of another offence.” Homicide Act of 1957, 5 & 6 Eliz. 2, c. 11, § 1. See Tejeda,
Without felony-murder liability, our common law of murder will be spared much of the confusion that has arisen from applying legal principles we have otherwise abandoned. General Laws c. 265, § 1, provides that ‘“[t]he degree of murder shall be found by the jury,” but we have held that this statutory directive cannot be met when a defendant is charged with felony-murder and the only underlying felony is a fife felony, because in such a case ‘“no reasonable view of the evidence supports a conviction of murder in the second degree.” See Paulding,
The abolition of felony-murder liability from our common law of murder is prospective, applying only to cases where trial begins after our adoption of the change. It will have no effect on felony-murder cases already tried, including this case (which is why this is a concurrence rather than a dissent). I recognize that a felony-murder case might have been tried very differently if the prosecutor had known that liability for murder would need to rest on proof of actual malice. For instance, a prosecutor might have asked for an involuntary manslaughter instruction if he or she had known that the jury could not rest a finding of murder on felony-murder liability.
Justice Gaziano’s concurrence identifies various factual scenarios, some of which come from Massachusetts criminal cases, where a victim was killed during the commission of a felony. See post at 836, 838-840. Through these examples, that concurrence seeks to show, first, that a verdict of murder in the first degree would not be possible on these facts without felony-murder liability and, second, that any lesser conviction would not be consonant with justice. See id. In fact, the examples show that, without felony-murder liability, each of these cases could yield convictions that are entirely consonant with justice.
Without felony-murder liability, the rapist who smothers the child rape victim could be found guilty of murder with actual malice if a jury found, either from the violence of the rape or the
The armed robbers who accidently discharged a fatal shot while vaulting over the counter or when struck by the victim’s baseball bat likely could not be found guilty of murder in the first degree because their intent with respect to the killing probably did not satisfy any of the three prongs of malice. See post at 836, 839-840; Commonwealth v. Vizcarrondo,
should not escape notice that this is the first time we have exercised our authority under G. L. c. 278, § 33E, to reduce a conviction of murder in the first degree on the theory of felony-murder to murder in the second degree where the evidence more than sufficed to support the verdict. See Commonwealth v. Rolon,
“We recognize that the doctrines of felony-murder and joint venture may, on some hypothetical fact patterns, produce a conviction of murder in the first degree that would appear out of proportion to a defendant’s culpability. It may in some circumstances seem harsh to convict a defendant of murder in the first degree if the defendant was on the remote outer fringes of a joint venture to commit some felony that satisfied the felony-murder rule in only some hypertechnical way.”
Id. at 824. But in Rolon we simply assumed, “without deciding, that reduction of a verdict in such circumstances could be appropriate under [Mass. R. Grim. R 25 (b) (2), as amended,
The statute was revised in 1860 to include “[m]urder committed ... in the commission of, or attempt to commit, any crime.” St. 1860, c. 160, § 1.
In this opinion “felony-murder liability” refers to liability for murder absent independent proof of malice. This is distinguishable from felony-murder as a statutory aggravator that merely elevates what would otherwise be murder in the second degree, based on proof of actual malice, to murder in the first degree where the killing occurred during the commission of a life felony — the concept codified in G. L. c. 265, § 1.
This will entirely eliminate the concept of “felony-murder in the second degree.” See Model Jury Instructions on Homicide 58-63 (2013).
Justice Gaziano’s concurrence correctly notes that this concurring opinion is in conflict with the reasoning in the court’s unanimous opinion in Commonwealth v. Hanright,
Concurrence Opinion
(concurring, with whom Lowy and Cypher, JJ., join). A rapist smothers a distraught child victim to silence her sobbing. To his surprise, the child dies. An armed robber enters a convenience store and threatens the store clerk with a handgun. The store clerk, frozen in fear, fails to comply with his demands. The frustrated armed robber vaults over the counter to empty the cash register, and in the process accidently discharges a fatal shot. See Binder, The Culpability of Felony Murder, 83 Notre Dame L. Rev. 965, 966 (2008) (Binder I). Neither of these offenders would be convicted of murder under Chief Justice Gants’s abrogated
Although an offender’s mental state is an important component of assessing blameworthiness, it is not “the only legitimate determinant of the grade of a homicide resulting from a felony.” Crump & Crump, In Defense of the Felony Murder Doctrine, 8 Harv. J.L. & Pub. Pol’y 359, 366 (1985) (Crump). See Binder I, supra at 1059 (accurate assessment of culpability requires consideration of fatal result). It is a fundamental tenet of criminal law that blameworthiness is premised on two factors, not just the offender’s state of mind. Commonwealth v. Lopez,
The criminal law, in general, considers the harm caused by an individual in evaluating the severity of an offense. Binder, Mak
To provide needed context, I address several instances where blameworthy defendants, who did not kill intentionally or recklessly, were convicted of felony-murder in the first degree. Each of these defendants would not be convicted of murder under Chief Justice Gants’s reformulation of the felony-murder rule.
In October, 1993, a farmhand named Robert Wade abducted the farm owner’s eighty-three year old mother from her house. Wade dragged the victim, who suffered from Alzheimer’s disease, along a dirt road to the shack wherе he lived. Commonwealth v. Wade,
On March 28, 1980, William Griffith spent the evening smoking marijuana, ingesting cocaine, and drinking alcohol. Commonwealth v. Griffith,
The second issue raised in Chief Justice Gants’s concurrence involves the imposition of vicarious criminal liability for every act committed by an accomplice, in furtherance of the felony, that results in death. See Commonwealth v. Tejeda,
Chief Justice Gants’s concurrence repudiates the court’s recent decision in Commonwealth v. Hanright,
Addressing joint venture liability for escape-related crimes, the court stated, “To establish liability for felony-murder on a theory of joint venture the Commonwealth must prove ‘that a homicide occurred in the commission or attempted commission of that felony[.] [Cjomplicity in the underlying felony is sufficient to establish guilt of murder in the first or second degree if the homicide . . . followed naturally and probably from the carrying out of the joint enterprise’ ” (emphasis in original; citation omitted). Id, at 307. Recognizing that “the felony-murder rule operates according to a unique set of principles,” the court concluded that the felony-murder doctrine allowed a jury to find the defend
The conclusion reached by Chief Justice Gants is that revision of the common-law felony-murder rule is necessary to vanquish the “fiction of constructive malice” and yield “verdicts that are just and fair in light of the defendant’s criminal conduct.” See ante at 825, 836. Yet, under this narrowed version of felony-murder, the defendant in this case likely would be convicted of murder in the first degree on the basis of his joint participation in an act of third prong malice.
Chief Justice Gants describes joint venture felony-murder liability as follows: “a defendant who commits an armed robbery as a joint venturer will be found guilty of murder where a killing was committed in the course of that robbery if he or she knowingly participated in the killing with the intent required to commit it — that is, with the intent either to kill, to cause grievous bodily harm, or to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result.” Ante at 832.
Here, the Commonwealth established that the defendant knowingly participated in the killing by supplying an accomplice with a loaded .380 handgun and other accomplices with hooded sweatshirts to be used to conceal their identities. See Commonwealth v. Zanetti,
In Commonwealth v. Rolon,
Thus, rather than abolish common-law felony-murder, Chief Jushce Gants’s concurrence offers a muddled version of the same crime. In the future, felony-murder liability will hinge on hne gradahons between third-prong malice, wanton and reckless involuntary manslaughter, negligence, and accident — with predictably unpredictable results. See Crump, supra at 372 (discussing disparity in verdicts created by ambiguous felony-murder rule). To be sure, there will be instances where morally culpable individuals will not be held responsible for the death of a rape victim, gasoline stahon attendant, or convenience store clerk. Rather than create such confusion, I would, instead, rely on the existing mechanism under G. L. c. 278, § 33E, to remedy those rare cases, such as the one presented here, where a verdict is not consonant with the interests of justice. In my view, the abrogation of common-law felony-murder to address the perceived unfairness of this convichon, at the expense of innocent victims of violent crime, is not necessary.
Tlie concurring opinion by Chief Justice Gants relies on Commonwealth v. Matchett,
The court’s decision in Commonwealth v. Wade,
“To compel another by force to acquiesce in the violation of an important right is to express contempt for a victim’s autonomy and status by asserting mastery over him or her. The death of a victim under the offender’s dominion and as a result of the offender’s coercion, typifies the wrongfulness of assuming power over another’s fate in order to wrong her. Felony murder rules appropriately impose liability for negligently causing death for a very depraved motive, as long as the predicate felony involves coercion or destruction, and a felonious purpose independent of the fatal injury. In evaluating the offender’s motives, felony murder rules are compatible with other rules of American criminal law . . . .”
Binder, The Culpability of Felony Murder, 83 Notre Dame L. Rev. 965, 1059-1060 (2008) (Binder I).
According to Chief Justice Gants’s concurrence, the factual scenarios discussed above, in which the victim was killed in the course of a sexual assault, would result in a conviction of murder. This is a misreading of the fact patterns. The rapist described in the hypothetical is intent on one “selfish aim[ ],” and does not recognize the obvious risks that his conduct imposes on the victim. Binder I, supra at 966. Similarly, Robert Wade’s intent was to abduct and rape the elderly victim; he dragged her out of the farmhouse and beat her to accomplish this purpose. She died weeks later due to medical complications. Wade,