425 Mass. 751 | Mass. | 1997
The defendant appeals from his conviction of murder in the first degree on the theories of felony-murder and extreme atrocity or cruelty and from his conviction of armed
The jury would have been warranted in finding that the defendant and Paul Ouellette entered the Fall River apartment of the victim intending to rob him of substantial sums of money that they knew he regularly carried.
The defendant challenges the denial of his motion to suppress certain evidence, the judge’s instructions on felony-murder, and the denial of his motion for a required finding of not guilty on the robbery indictment. He also asserts that the judge’s dismissal of the two indictments charging accessory crimes did not adequately cure the legally inconsistent verdicts that convicted the defendant of being both a principal in, and an accessory to, the same crimes.
1. The defendant challenges the denial of his motion to suppress the warrantless seizure of a van that a witness identified to the police as the van that had left the area of the homicide shortly after the death was believed to have occurred. The defendant rightly concedes that the police had probable cause to search the van. He asserts, however, that there were no exigent circumstances justifying a warrantless search. When seized, the vehicle was parked in a public place and was apparently capable of being moved. Our recent opinion in Commonwealth v. Motta, 424 Mass. 117 (1997), held that, given the mobility of such a vehicle, no further exigency is required. Id. at 124. The motion to suppress evidence obtained in the van was rightly denied.
2. The defendant also challenges the denial of his motion to suppress incriminating statements that he made to a cellmate while being held in lieu of bail in the Bristol County house of
The motion judge correctly ruled that, in the circumstances, the cellmate was not an agent of the government. See Commonwealth v. Harmon, 410 Mass. 425, 428 (1991); Commonwealth v. Rancourt, 399 Mass. 269, 274 (1987). The cellmate’s motivation might well cast doubt on the reliability of his testimony, but the government did not encourage his actions or seek his assistance. In the absence of government encouragement, the defendant’s right to counsel was not violated by the cellmate’s questioning. Cf. United States v. Henry, 447 U.S. 264, 273-274 (1980).
3. The defendant argues that the judge created a substantial likelihood of a miscarriage of justice by his instructions on felony-murder. We disagree.
The judge made no distinction in his charge between armed robbery, which is inherently dangerous to human life (Commonwealth v. Bourgeois, 404 Mass. 61, 64 [1989]), and unarmed robbery, which is not (Commonwealth v. Moran, 387 Mass. 644, 651 [1982]). An unarmed robbery may support a felony-murder conviction only if, in the circumstances, the jury find that the defendant demonstrated a conscious disregard of the risk to human life. Commonwealth v. Mello, 420 Mass. 375, 391 (1995). Here, the judge instructed the jury that for each felony, armed as well as unarmed robbery, the jury could consider it as the basis of a felony-murder conviction only if they found that the defendant committed or attempted to commit that felony with a conscious disregard of the risk to human life. The defendant did not object to the instruction. Indeed, the instruction was more favorable to the defendant than he was entitled to. There was no miscarriage of justice.
4. There is no merit to the defendant’s argument that the judge erred in denying his motion for a required finding of not guilty on the robbery indictment. He makes only one argument: that the evidence did not establish that the stabbing occurred in connection with the taking or attempted taking of any money.
5. A defendant may not properly be convicted of a crime and of being an accessory after the fact to the same crime. Commonwealth v. Berryman, 359 Mass. 127, 129 (1971). The jury returned verdicts of guilty on each indictment: murder, accessory after the fact to that murder, armed robbery, and accessory after the fact to that armed robbery. The defendant did not object to the judge’s instructions concerning permissible verdicts and did not request the judge to send the jury back to deliberate when the inconsistent verdicts were returned. The defendant argues that the verdicts were void and that trial counsel’s failure to object created a substantial likelihood of a miscarriage of justice. When the judge considered the sentences to be imposed, on request of the prosecutor, he dismissed each accessory indictment without prejudice.
We recently dealt with a similar situation in Commonwealth v. Nascimento, 421 Mass. 677 (1996), where the jury found the defendant guilty of receiving stolen property and of stealing the same property. In that opinion, we said that the dismissal of the indictment for receiving stolen property was an adequate cure for the inconsistencies in the verdicts. Id. at 684-685. This is the practice in a majority of jurisdictions in this country. Id. at 683-684. The verdicts were not void; they were correctable at
6. This case presents no basis for the exercise of our statutory authority under G. L. c. 278, § 33E, in favor of the defendant.
Judgments affirmed.
Ouellette pleaded guilty to murder in the second degree and armed robbery and received a life sentence on the murder conviction and a concurrent sentence of from fifteen to twenty years on the armed robbery conviction.
We need not consider the defendant’s argument that there was not enough evidence to submit the case to the jury on the theory of murder in the first degree committed with extreme atrocity or cruelty. The conviction of the defendant of murder in the first degree on the theory of felony-murder was error free. Any error in submitting the theory of extreme atrocity or cruelty to the jury was, therefore, not prejudicial.
