A grand jury indicted the defendants of the crimes of unarmed robbery, see G. L. c. 265, § 19(b), and murder in the first degree on a theory of felony-murder, see G. L. c. 265, § 1. The defendants moved to dismiss the murder indict
Background. The evidence before the grand jury, taken in the light most favorable to the Commonwealth, showed the following. See Commonwealth v. Levesque, 436 Mass. 443, 444 (2002). On the night of July 30, 2009, Ramos attended a birthday party on West Dalton Street in Lawrence (city), an address in the city’s so-called “Stadium projects.” Police officers broke up the party at around 10:00 p.m. Ramos and others left and walked to the nearby comer of Osgood and West Dalton Streets, where a group was gathering. Some in the group were seen carrying baseball bats, and some were heard shouting “SP,” a street gang name standing for “Stadium projects.”
Lopez arrived at the comer in a taxicab. He greeted Ramos and one Wainer Caba. Lopez told Caba that he had just come from buying new clothes and planned to “go do something.” Lopez alone then entered a building in the Stadium projects and returned moments later, still alone. Caba asked Lopez what he was doing, and Lopez responded, “I’m abouts to go do me.” Caba took this to mean that Lopez planned to go do something by himself.
Around the same time, a restaurant in the city received a telephone order for Chinese food to be delivered to the Stadium projects. The address given was 230 Osgood Street, which was near the comer of Osgood and West Dalton Streets. The caller was a young male with a Spanish accent; a female voice could be heard giggling in the background. Investigating officers later learned that the resident of 230 Osgood Street did not place the food order. Officers also learned that the telephone call to the
Thu Nguyen had worked for the restaurant on and off for fifteen years, returning most recently in early 2009 after a “retirement” due to a surgery.
Nguyen started to ascend the stairs, delivery bag in hand. Lopez at first motioned as if to hand Nguyen money but then, without warning, delivered a single closed-fist blow to Nguyen’s head. Entirely caught off guard, Nguyen had no time to drop the bag, to balance, or to defend himself. The force of the punch caused him to fall backwards onto the pavement below. He struck his head against the pavement with audible impact, and most of the onlookers fled. Nguyen began to gasp for air and to foam at the mouth. Lopez got down on his knees next to Nguyen and searched Nguyen’s pockets. Ramos stood a few feet from Nguyen’s head, holding the bag of Chinese food. Lopez took $125 from Nguyen’s pockets and ran away, in concert with Ramos.
A security guard found Nguyen within minutes. Nguyen was unconscious but still breathing. His car was parked, running, with the driver’ s-side door still open. Nguyen died in the hospital fifteen hours later, from the trauma to his head. His skull had been fractured by the impact with the sidewalk.
On the day following the attack, Lopez told a friend that he punched Nguyen because he was “hungry” and “wanted some liquor.” Lopez said that he arrived at the liquor store with the stolen money five minutes before it closed, and that he ate the Chinese food. Ramos, for his part, admitted to a police officer that he saw Nguyen lying on the sidewalk but said that he did not know what had happened to him. Ramos denied knowing
In early August, Lopez went to New Hampshire to stay with one Julia Elswick, a family friend. When Elswick asked him why he was there, Lopez told her that he “messed up” and that “the cops [were] looking for [him] because [he] hit a guy and stole Chinese food.” When asked if he had acted alone, Lopez told Elswick that there were “other people” but did not give names. Police eventually located Lopez at Elswick’s residence and arrested him.
Discussion. To sustain an indictment, “the grand jury must hear sufficient evidence to establish the identity of the accused . . . and probable cause to arrest him” for the crimes charged. Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). Commonwealth v. Moran, 453 Mass. 880, 883 (2009). “Probable cause requires sufficient facts to warrant a person of reasonable caution in believing that an offense has been committed.” Levesque, 436 Mass. at 447. We stress that probable cause is “considerably less exacting than a requirement of sufficient evidence to warrant a guilty finding.” Commonwealth v. O’Dell, 392 Mass. 445, 451 (1984). See Commonwealth v. Riley, 73 Mass. App. Ct. 721, 726-727 (2009). The standard “offers no sure mechanical guide for assessing sufficiency, but it has been employed primarily to strike down indictments in cases where a grand jury has heard ... no evidence whatever that would support an inference of the defendant’s involvement.” Commonwealth v. Goldstein, 54 Mass. App. Ct. 863, 866-867 (2002), quoting from Commonwealth v. Truong Vo Tam, 49 Mass. App. Ct. 31, 37 (2000).
The defendants were indicted for murder in the first degree on a theory of felony-murder — Lopez as a principal and Ramos as a joint venturer — with unarmed robbery as the predicate offense. “Felony-murder may only be premised on unarmed robbery if the Commonwealth [shows] that the defendant committed the felony with a conscious disregard for human life.” Commonwealth v. Scott, 428 Mass. 362, 364 (1998). See Commonwealth v. Cook, 419 Mass. 192, 205 (1994). The judge reasoned that death resulting from a single punch is an inherently unforeseeable occurrence inconsistent with conscious disregard for life and, therefore, dismissed the murder indictments.
The defendants argue that a single punch cannot establish the mental state required for murder, but only that required for manslaughter.
That said, the blow is not to be viewed in isolation. Whether a particular felony (here, unarmed robbery) was committed with conscious disregard for life is a largely fact-dependent inquiry resting “upon a case-by-case analysis of the nucleus of facts in which that felony is embedded.” Commonwealth v. Garner, 59 Mass. App. Ct. 350, 357 (2003). A particular felony may be committed with conscious disregard in one factual context, but without it in another. Ibid.
The evidence before the grand jury permitted them to infer that Lopez achieved his robbery with a blow significantly more dangerous and devastating than an ordinary punch. From his elevated position, Lopez delivered a downward closed-fist blow to Nguyen’s head. See Commonwealth v. Hadley, 78 Mass. App. Ct. 405, 409 (2010). The situation was not one of mutual combat; the blow was a “sucker punch” thrown unexpectedly and without warning, in circumstances in which Nguyen was prepared only for a routine commercial transaction. Contrast Mahnke, supra. Lopez struck while Nguyen was holding a bag of food and was beginning to ascend the stairs. Nguyen was located below Lopez, in a position of obvious physical vulnerability. It fairly may be inferred that the circumstances were set up by Lopez so as to render Nguyen unable to defend or to balance himself, or to break his fall. All of these circumstances — particularly Nguyen’s exposed position and the surprise nature of the blow — enhanced the risk that Lopez’s actions would result in death.
The force of the blow was enough to propel Nguyen backwards onto the pavement below. Nguyen’s head audibly struck the
The final determination of Lopez’s mental state is “best reserved for a petit jury to sort out” with a more complete picture of the evidence and proper instructions from the trial judge. Goldstein, 54 Mass. App. Ct. at 868. “To require more than was presented to the grand jury here [would] conflate[] and confuse[] the accusatory role of the grand jury, the adjudicatory role of the petit jury, and the quantum of proof required at two very different stages of criminal proceedings.” Riley, 73 Mass. App. Ct. at 726. In sum, we think that at this stage of the proceedings, the Commonwealth met its burden with respect to Lopez’s mental state.
Ramos, however, stands on a different footing. He was indicted as a joint venturer and not as a principal. To sustain the indictment against him, the Commonwealth needed to present sufficient evidence to support a finding of probable cause that Ramos “knowingly participated in the commission of the crime charged . . . with the intent required for that offense.” Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009). See Commonwealth v. Reveron, 75 Mass. App. Ct. 354, 357 n.2 (2009). In other words, the Commonwealth needed to show that Ramos participated in the robbery while sharing Lopez’s mental state of conscious disregard for the risk to human life.
The evidence before the grand jury indicated that Lopez greeted Ramos upon arriving at the comer, and that Ramos was in a position to hear Lopez say to Caba that he planned to “go do something.” The evidence also showed that, in contrast to
Taken together, this evidence was insufficient to sustain the indictment of murder in the first degree against Ramos on a joint venture theory. See Commonwealth v. Lee, 460 Mass. 64, 68-70 (2011). The Commonwealth did not present any evidence to suggest that Ramos knew, at or before the moment of Lopez’s punch, that Lopez intended a severe and life-threatening attack upon Nguyen, or even that Lopez intended to punch and to rob Nguyen at all. For all the evidence showed, Ramos was nothing more than a bystander until the moment the robbery began. His presence and participation after the attack, together with evidence of postrobbery consciousness of guilt, were not sufficient to support an inference as to his state of mind before the fatal blow was struck. Ibid. See Reveron, 75 Mass. App. Ct. at 358-359.
So much of the order on the defendants’ motions to dismiss as dismisses the indictment of Lopez on murder in the first degree is reversed, and the matter is remanded to Superior Court for further proceedings. The remainder of the order is affirmed.
So ordered.
This appeal does not involve the unarmed robbery indictment against either defendant. Lopez did not move to dismiss that charge below, and Ramos does not appeal from the denial of his motion to dismiss it.
The grand jury heard no testimony regarding the nature of Nguyen’s surgery or the length of his “retirement,” nor did it hear any testimony regarding Nguyen’s age. While the grand jury could have inferred that Nguyen was at least middle aged, there was no testimony to suggest that Nguyen was elderly or in a visibly weakened state.
The “rationale underlying the felony-murder rule” is “to reduce the disproportionate number of accidental homicides which occur during the commission of the enumerated predicate felonies by punishing the party responsible for the homicide not merely for manslaughter, but for murder.” Commonwealth v. Claudio, 418 Mass. 103, 108 (1994), quoting from People v. Miller, 32 N.Y.2d 157, 161 (1973).
Conscious disregard demands conduct more dangerous than that required for involuntary manslaughter. See Commonwealth v. Sneed, 413 Mass. 387, 394 (1992); Commonwealth v. Fortes, 47 Mass. App. Ct. 214, 218 (1999). Involuntary manslaughter requires wanton or reckless conduct, that is, conduct involving “a high degree of likelihood that substantial harm will result to another.” Commonwealth v. Earle, 458 Mass. 341, 347 (2010), quoting from Commonwealth v. Welansky, 316 Mass. 383, 399 (1944). Conduct evincing conscious disregard thus requires more than a mere threat of substantial physical harm; conduct supporting felony-murder liability must pose a foreseeable risk of actual loss of life.