A grand jury returned twenty-two indictments against the defendant, Scott Hanright, including indictments charging murder in the first degree and various counts of masked armed robbery. The charges arose out of a robbery, perpetrated by Domenic Cinelli, of a jewelry counter at a department store in Woburn on December 26, 2010, and from other offenses Cinelli committed while attempting escape, including shooting a police officer to death. The Commonwealth is proceeding against the defendant as a joint venturer and coconspirator. In relevant part,
1. Facts. We recount the evidence presented to the grand jury in the light most favorable to the Commonwealth. See Commonwealth v. Walczak, 463 Mass. 808, 812 (2012) (Lenk, J., concurring). The defendant lived with his grandmother and met Cinelli, whom the defendant knew to have been imprisoned for over three decades for robbing jewelry stores, when Cinelli became romantically involved with the defendant’s grandmother. The defendant, aged nineteen at the time, did not own an automobile and did not drive, and Cinelli began driving the defendant to work. Approximately one month before the robbery, Cinelli mentioned the idea of robbing the jewelry counter while he and the defendant were out driving. Cinelli told the defendant that the plan was to go into the store with a gun and a mask, approach the jewelry counter, and demand money or jewelry. He also stated that he preferred to commit the robbery during a snow storm. The defendant knew that Cinelli had a gun because Cinelli had showed the defendant a gun when the two were in Cinelli’s apartment. On several occasions following the initial conversation about robbing the jewelry counter, Cinelli and the defendant drove possible escape routes. A few days before the robbery, Cinelli told the defendant that he had gone to the store by himself with the intention of robbing it, but changed his mind because police officers were present.
A blizzard dropped over a foot of snow on the evening of the robbery. Cinelli telephoned the defendant and asked if he wanted to go for a ride. Cinelli arrived at the defendant’s home shortly thereafter, and the defendant went outside and got into Cinelli’s automobile. The defendant realized that Cinelli intended to commit the robbery that evening because Cinelli was wearing a fake beard and a ski mask, and also because of the snow storm. The defendant later told the police that he did not see a gun in
Cinelli drove to the store and parked the car on the intended escape route. He left the key in the ignition and told the defendant to leave his door unlocked. Cinelli then gave the defendant a ski mask (which the defendant later told the police he put on his head but did not pull down over his face) and told the defendant that he was to run back to the car after Cinelli completed the robbery. Both Cinelli and the defendant left their cellular telephones in the automobile. The two then walked to the department store, and the defendant waited outside while Cinelli went inside. The defendant later denied that he was asked to, or did, play an active role in the robbery, and specifically denied that he was to serve as a lookout. He claimed that he merely went along because he was afraid of Cinelli, and because he hoped to share in some of the proceeds from the robbery.
Inside the store, Cinelli demanded jewelry from several department store employees, and collected it in a duffle bag. Responding to a telephone call that a robbery was in progress, Officer Grammar arrived on the scene. He observed the defendant standing outside, but then focused his attention on Cinelli, who was coming out of the department store carrying the duffle bag. Cinelli pointed a gun in Grammar’s direction, and a chase ensued. Matney, who was driving a snow plow, saw the chase and maneuvered the snow plow to block Cinelli’s exit. Although Matney did not observe a gun at that time, Cinelli raised his arm toward Matney as if preparing to shoot, causing Matney to raise the bucket on the snow plow to protect himself. Officer Maguire then arrived on the scene and joined in the chase. Upon seeing Cinelli, Maguire got out of his police vehicle and a gunfight ensued. Both Cinelli and Maguire died from gunshot wounds.
While the police were pursuing Cinelli, the defendant threw his ski mask into the trash and walked away from the scene of crime. As he was walking, he saw an elderly woman sweeping her porch and asked if he could use her telephone. He telephoned his aunt and asked for her boy friend’s telephone number, and then telephoned the boy friend and asked to be picked up in front of a nearby store. The defendant was arrested before the boy friend arrived.
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.”
Outside the narrow context of joint venture felony-murder,
This case presents a useful illustration of the divergent workings of the theories of joint venture liability for felony-murder as compared to joint venture liability for other crimes perpetrated by a coventurer while attempting escape from a crime in which a defendant participated as a joint venturer. Here, Cinelli shot and killed Maguire as Cinelli attempted to escape following the armed robbery. Consequently, a jury may find the defendant liable for Maguire’s death by virtue of the defendant’s complicity in the underlying armed robbery pursuant to the felony-murder
We are well aware that we are in the minority of jurisdictions that have “expressly rejected the ‘natural and probable consequences’ doctrine” of joint venture liability outside the joint venture felony-murder context.
“general application of the ‘natural and probable consequence’ rule of accomplice liability is unwarranted. A’s guilt as an accomplice to one crime should not per se be a basis for holding A accountable for a related crime merely because the latter offense was carried out by A’s principal, for this as well would result in A’s guilt of a crime as to which he did not have the requisite mental state.”
LaFave, supra at 362-363. Thus, we do not dispense with the intent requirement for joint venture liability for each of a coventurer’s escape-related crimes. Joint venture liability for escape-related crimes is not coextensive with joint venture liability for escape-related felony-murder.
3. Sufficiency of the evidence. Of course, just because it is not sufficient for joint venture liability (with the exception of liability for joint venture felony-murder) that a coventurer’s crimes follow “naturally and probably” from the underlying joint venture does not mean that the Commonwealth cannot charge a joint venturer for a coventurer’s crimes committed while attempting escape. See Commonwealth v. Richards, supra; Commonwealth v. Fillippini, supra. The Commonwealth simply must establish that the joint venturer knowingly participated in
Probable cause to sustain an indictment is a decidedly low standard. See Commonwealth v. Moran, supra; Commonwealth v. Hason, 387 Mass. 169, 174 (1982). See also Brinegar v. United States, 338 U.S. 160, 175-176 (1949), and cases cited. “[A]t the very least the grand jury must hear sufficient evidence to establish the identity of the accused . . . and probable cause to arrest him” for the crime charged. Commonwealth v. Moran, supra at 883, quoting Commonwealth v. McCarthy, supra. Prob
Here, the grand jury had probable cause to find that the defendant intentionally participated as a joint venturer in the assault and battery crimes against Maguire, the assault crimes against Grammar and Matney, and the discharge of a firearm. See Commonwealth v. Richards, supra. Certainly, the evidence suggests that Cinelli was the principal in the armed robbery and the escape-related offenses, and that the defendant played a relatively minor role in the over-all scheme. Cf. id. Nevertheless, there was evidence that the defendant participated in the planning of an escape: he and Cinelli mapped out escape routes several times in the month leading up to the robbery. Although he denies
Likewise, the Commonwealth presented sufficient evidence of the defendant’s participation and intent to support the indictment for Maguire’s murder insofar as it advances theories of deliberate premeditation and extreme atrocity or cruelty. To sup
Assuming the Commonwealth decides to proceed on the challenged indictments and theories of murder in the first degree other than felony-murder, we lastly consider the requisite jury instructions. In light of the intent required to establish the defendant’s liability on a theory of joint venture for Cinelli’s crimes committed while attempting escape and that did not result in death (assault and battery by means of a deadly weapon against a person sixty or over; assault and battery on a public employee; two counts of assault by means of a dangerous weapon; and
4. Conclusion. We reverse the grant of the defendant’s motion to dismiss the indictments that charge the defendant with the assault and battery and firearm crimes perpetrated by Cinelli during his flight following the armed robbery. We likewise reverse the grant of the defendant’s motion to dismiss that prevents the Commonwealth from proceeding at trial on all three theories of murder.
So ordered.
The defendant also moved to dismiss the charge of murder in the first degree based on a theory of felony-murder on the ground that the felony-murder rule is unconstitutional. Tfhe motion judge denied that portion of the defendant’s motion, and the defendant does not press his challenge to the constitutionality of the felony-murder rule on appeal. He also concedes that the evidence presented to the grand jury established probable cause to support the felony-murder charge and, therefore, does not challenge that theory of murder.
The defendant does not challenge the sufficiency of the evidence to prosecute him as a joint venturer to the underlying robbery offenses committed by Domenic Cinelli when Cinelli was inside the store.
We have recognized that escape efforts may be attributed to the underlying, predicate felony for the purposes of the application of the felony-murder doctrine. See Commonwealth v. Rogers, 459 Mass. 249, 252-256, cert. denied, 132 S. Ct. 813 (2011); Commonwealth v. Dellelo, 349 Mass. 525, 529-530 (1965).
In its brief, the Commonwealth argued that the defendant need not have shared with Cinelli the intent to commit the escape-related crimes to be held liable on a theory of joint venture. At oral argument, however, the Commonwealth appears to have conceded its burden to establish intent as to each of Cinelli’s escape-related crimes.
The Commonwealth also wishes to proceed against the defendant for joint venture murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty. To succeed on either theory, unlike under a theory of joint venture felony-murder, the Commonwealth must prove that the defendant intended the harm to Maguire. See Commonwealth v. Earle, 458 Mass. 341, 346 (2010); Commonwealth v. Richards, 363 Mass. 299, 306-308 (1973).
For other jurisdictions that follow a similar approach to joint venture liability outside the limited context of felony-murder, see Gonzales v. Duenas-Alvarez, 549 U.S. 183, at 196 Appendix B (2007), and 2 W.R. LaFave, Substantive Criminal Law § 13.3(b), at 363 n.35 (2d ed. 2003) (LaFave), and sources cited.
Nor does the scope of joint venture liability extend, as the Commonwealth argues, to the unintended crimes of a coventurer committed “in furtherance of” a joint venture. We have used the phrase “in furtherance of” to delineate the scope of the joint venture exception to the rule against hearsay, and to determine whether an act of a defendant constitutes participation in a joint venture. See Commonwealth v. Bright, 463 Mass. 421, 426 (2012); Commonwealth v. Borans, 379 Mass. 117, 146 (1979); Commonwealth v. Blow, 370 Mass. 401, 407-408 (1976). Such language is not used to define the scope of the criminal liability of an accomplice. Moreover, in the related conspiracy context, we have rejected the view that members of a conspiracy are liable for the substance offenses of coconspirators committed “in furtherance of” the conspiracy. Commonwealth v. Richards, supra at 306. “Under the better view, one is not an accomplice to a crime merely because that crime was committed in furtherance of a conspiracy of which he is a member, or because that crime was a natural and probable consequence of another offense as to which he is an accomplice.” LaFave, supra at § 13.3, at 356.
We offer no comment concerning whether the evidence is sufficient to defeat a motion for a required finding of not guilty.
After his arrest following the robbery, the defendant told police that he asked Cinelli if Cinelli was worried about violating his parole and going back to jail, and that Cinelli indicated that he knew he would spend the rest of his life in jail if he were caught.
Murder in the first degree (other than on a felony-murder theory) requires proof of these elements and also of either deliberate premeditation or extreme atrocity or cruelty. Commonwealth v. Earle, supra at 346 n.7.
In Commonwealth v. Scanlon, 373 Mass. 11, 18-19 n.1 (1977), we determined that the following instruction on the requisite intent of an accomplice was proper: “[I]t is not enough if [the defendant] merely thought a crime might or may be committed, that the victim might get killed. Even if that happened . . . it is not enough. He has to know that there is more than a possibility or more than a ‘maybe.’ He has to know that there is a substantial chance that the victim will be killed.”
