Commonwealth v. LugoCommonwealth v. Lugo
In Commonwealth v. Okoro, 471 Mass. 51, 62 (2015), we concluded that the mandatory sentencing scheme as applied to juveniles convicted of second-degree murder was constitutional. We left for another day, however, the question whether juvenile homicide offenders require individualized sentencing. We stated: “Given the unsettled nature of the law in this area and the indication that it is still evolving, we think it prudent to allow this process to continue before we decide whether to revisit our interpretation of [Miller v. Alabama, 567 U.S. 460 (2012),] and the scope of its holding.” Okoro, supra at 61. Now, nearly four years after our decision in Okoro, the defendant asks us to address that very issue. For the same reasons stated in Okoro, we continue to leave the individualized sentencing question for another day and reject the defendant‘s other arguments.3
Background. We summarize the facts that the jury could have found, reserving pertinent facts for the discussion of the defendant‘s arguments. In addition, we reserve the facts that the motion judge found for the discussion of the defendant‘s motion to suppress.
The defendant and three friends, Alison Deshowitz, Devante Thames, and Brian Moulton, developed a plan to rob the victim of marijuana. Deshowitz, who had dated the victim, contacted him under the guise that she was arranging a drug transaction. The plan was for the group to meet the victim at a restaurant, bring him to his home tо secure the marijuana, and then rob him of the marijuana. The defendant drove the group in his mother‘s black sport utility vehicle (SUV) to meet the victim. On the way to the restaurant, he informed the group that he was armed with a revolver.
The group met the victim at the restaurant and drove him to his house to get the marijuana. After going inside the victim‘s house to measure the marijuana, the victim and Thames walked back to the SUV that was idling in the victim‘s driveway. The victim leaned into the front passenger‘s side window of the SUV
Police quickly discovered that the victim was last seen alive with Deshowitz. After going to Deshowitz‘s house and learning that she was not home, police spoke to her on her cell phone. Police then attempted to locate her cell phone by “pinging” it. Deshowitz‘s cell phone location, coupled with other information that police gathered, indicated that she was located at the defendant‘s house. Police proceeded to the
At the defendant‘s house, police discovered a black SUV in the garage. Police recovered several bags of marijuana in the dеfendant‘s bedroom and a .22 caliber revolver, later revealed to be the murder weapon, hidden in a hollowed-out hole under a patio brick.
2. Procedural history. The offenses were committed three months before the defendant‘s eighteenth birthday. At the conclusion of trial, he was sentenced to life in prison with the possibility of parole after fifteen years on the charge of murder in the second degree. At the sentencing hearing, although defense counsel acknowledged that the judge had no discretion in imposing a sentence for murder in the second degree, he asked for a continuance so that he could present evidence of mitigation. Defense counsel informed the judge that he had retained an expert in juvenile psychology and that he wanted to present the expert‘s testimony at sentencing. According to defense counsel, this testimony would have discussed “unique things about juveniles, their perception, their need for instant gratification, their likelihood of success and rehabilitation . . . all things that are important.” The judge acknowledged the possible importance of this information when the defendant is eligible for parole, but
The defendant timely filed a notice of appeal, which was stayed so that he could pursue a motion for a new trial. In his motion, the defendant argued, among other things, that the statutorily mandated sentence of life with the possibility of parole after fifteen years violated provisions of the State and Federal Constitutions; certain instructions given on the homicide charge were erroneous; and counsel was ineffective in failing to object to improper instructions. After a nonevidentiary hearing, the motion was denied. The motion judge, who was also the trial judge, found that
“[r]eview of the Okoro ruling makes clear that a person in [the defendant‘s] position is not under the law as presently enunciated in a position to argue that he must receive an individualized sentencing hearing after his cоnviction of second degree murder, an offense which requires the imposition of the mandatory sentence called for in [
G. L. c. 265, § 2 ].”
The defendant‘s appeal from that denial was consolidated with his direct appeal, and we granted his application for direct appellate review.
Discussion. 1. Constitutionality of the defendant‘s sentence. The defendant argues that the statutory sentencing scheme for juveniles convicted of murder in the second degree,
In Diatchenko I, we held that, in light of the United States Supreme Court‘s decision in Miller,5 the Massachusetts statute imposing a sentence of mandatory life without parole,
In Okoro, 471 Mass. at 58, we “[left] for later day the question whether juvenile homicide offenders require individualized sentencing” for several reasons. First, we held
At that point, we thought it prudent to allow this area of the law to settle further before revisiting our interpretation of Miller. For the same reasons we stated in Okoro, we remain unwilling to revisit our interpretation in regard to individualized sentencing. The Commonwealth suggests that in the four years since Okoro, our case law has only affirmed that the opportunity to seek parole after fifteen years is an
The defendant further contends that the judge violated his due process rights in denying his request for a continuance of sentencing so that he could present evidence of mitigation. He argues that evidence available to him at the time of sentencing -- at a minimum, evidence of his mental state and immaturity -- may not be available to him at the time of his first parole hearing. The judge acknowledged the possible importance of this evidence when the defendant is eligible for parole but denied the defendant‘s request. The judge believed that the information was better suited to be presented to the parole boаrd at the time of the parole hearing.
Here, we agree with the judge. Although the defendant constitutionally is entitled to funds to establish mitigating evidence that will be relevant before the parole board, he or she is not entitled to make a record through an adversarial process before sentencing. The defendant may, for example, immеdiately seek funds for an expert report explaining the relationship between a defendant‘s neurobiological immaturity and culpability. However, the appropriate time to make a record of any expert evidence will be at the parole board hearing.6
2. Jury instructions. At trial, the defendant sought, but did not receive, jury instructions on accident, involuntary
a. Accident instruction. The judge declined to instruct the jury on the defense of accident. The defendant argues that the evidence at trial was sufficient to warrant such an instruction. The Commonwealth argues that the judge was correct in not providing the accident instruction because the evidence did not support one and it would have contradicted the defendant‘s theory at trial of self-defense or defense of another. We conclude that the evidence presented at trial did not warrant an accident instruction.
An accident instruction is warranted where “the evidence at trial fairly raised the possibility that [the defendant caused the victim‘s death] unintentionally while engaged in conduct
Here, viewed in the light most favorable to the defendant, there is no evidence that the victim‘s fatаl injuries were caused by an accident. The evidence at trial showed that the defendant, along with his cohorts, planned to rob the victim of marijuana. The defendant armed himself with a revolver and told his confederates not to “worry” about the robbery because he had ready access to the weapon and that he “wouldn‘t be afraid to use it.” Once the victim realized that the payment was short, the defendant effectuated the plan, “threw the car in reverse,” and backed out of the victim‘s driveway with the victim still
Citing testimony from the Commonwealth‘s firearms expert, the defendant argues that evidence that the firearm used in the killing required a small amount of trigger pressure supported his request for an accident instruction because it would have been “very easy” for the gun to have discharged accidentally. This evidence does not warrant an accident instruction alone, and there was no additional evidence to support the contention that the firearm was discharged accidentally. In fact, the jury heard evidence that the defendant extended his arm with the gun across the passenger seat and shot the victim in the chest. The evidence showed that the defendant‘s intentional conduct caused the gun to fire, not mere “inadvertence, mistake, or negligence.” See Figueroa, 56 Mass. App. Ct. at 650.
b. Involuntary and voluntary manslaughter instructions. The defendant argues that the judge erred in denying his request to instruct the jury on involuntary manslaughter. He further contends that trial counsel was ineffective in failing to object to the judge‘s decision not to give the instruction. We review for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 296 (2002) (equating ineffective assistance of counsel standard to substantial risk
We have “stated repeatedly that, ‘when the evidence permits a finding of a lesser included offense, a judge must, upon request, instruct the jury on the possibility of conviction of the lesser crime.‘” Commonwealth v. Gaouette, 66 Mass. App. Ct. 633, 639 (2006), quoting Commonwealth v. Woodward, 427 Mass. 659, 662-663 (1998). If a manslaughter charge is not supported by any view of the evidence, however, then a judge does not commit error by deсlining to give such an instruction. Commonwealth v. Nichypor, 419 Mass. 209, 216 (1994). “In deciding whether the evidence might have supported a manslaughter instruction, we draw all reasonable inferences in the defendant‘s favor.” Commonwealth v. Bins, 465 Mass. 348, 368 (2013), quoting Commonwealth v. Masello, 428 Mass. 446, 449 (1998).
Involuntary manslaughter is an unintentional killing occurring while a defendant is engaged in wanton or reckless conduct that creates a high degree of likelihood that substantial harm will result to another. Commonwealth v. Power-Koch, 69 Mass. App. Ct. 735, 736-737 (2007). “[W]here a defendant is charged with murder, an instruction on involuntary manslaughter is appropriate if any ‘reasonable view of the evidence would [permit] the jury to find “wanton [or] reckless”
Here, an involuntary manslaughter instruction was not warranted. The evidence shоwed that the defendant armed himself with a firearm and planned to rob the victim. A reasonable view of the evidence suggests that the defendant exhibited conduct from which a plain and strong likelihood of death would result. The defendant pulled out a revolver and pointed it at the victim before shooting him in the chest. See Commonwealth v. Alebord, 68 Mass. App. Ct. 1, 7 (2006) (“The likelihood of death ensuing when a loaded weapon is aimed at a person or group of people and then intentionally discharged is plain and strong indeed“).
The defendant also raises the same arguments regarding the judge‘s denial of his request for a voluntary manslaughter instruction. Specifically, he argues that the judge erred in not instructing the jury on reasonable provocation and sudden combat.7
Voluntary manslaughter is “a killing from a sudden transport of passion or heat of blood, upon a reasonable
In cases where sudden combat is the claimed provocation, the victim generally must attack the defendant, or at least
3. Motion to suppress cell phone location. Prior to trial, the defendant filed a motion to suppress the evidence of his cell site location information (CSLI) that police obtained from his cell phone carrier. The motion judge denied the motion, concluding that the emergency aid exception justified the warrantless pinging of Deshowitz‘s and the defendant‘s cell phones. In reviewing a decision on a motion to suppress, “we accept the judge‘s subsidiary findings absent clear error ‘but
In the interim, Tuitt received a telephone call from Deshowitz‘s mother, who told Tuitt that she believed something was wrong with her daughter. When police received Deshowitz‘s cell phone coordinates at 1:26 A.M., they discovered that the cell phone was located in Brockton. Tuitt asked Deshowitz‘s mother if Deshowitz knew anyone in Brockton. The mother replied that she knew a “Nate” and gave his address. The mother accompanied Tuitt to the address, where Tuitt observed a vehicle registered to the defendant‘s mother parked in the driveway. McCormack also learned from registry records that a licensed driver named “Nathan Lugo” resided at the residence.
As part of the exigency request, the cell phone carrier also provided police with the cell phone numbers and subscriber names for cell phones that either received or made сalls to Deshowitz‘s cell phone. Among those numbers was a cell phone
At approximately 3 A.M., police arrived at the defendant‘s residence and were allowed in by the defendant‘s mother. Police retrieved Deshowitz and asked her to speak with responding officers. Later that morning, the officers procured a search warrant. During their search, police discovered evidence linking the defendant to the killing, including the murder weapon. The officers proceeded to arrest the defendant, Deshowitz, Thames, and Moulton.
On appeal, the defendant argues that the motion judge erred in denying his motion to suppress the evidence obtained as a result of the pinging of Deshowitz‘s and his cell phones. He argues that the emergency aid exception to the warrant requirement does not apply because police had no objectively reasonable basis to believe that Deshowitz was injured or was in “imminent danger of physical harm” (citation omitted). Commonwealth v. Entwistle, 463 Mass. 205, 213 (2012), cert. denied, 568 U.S. 1129 (2013). The Commonwealth argues that the defendant lacked standing to contest the real-time “pinging” of Deshowitz‘s cell phone and that the motion judge‘s undisputed factual findings supported the application of the emergency exception to the search.
We conclude that the action by police of causing Deshowitz‘s and the defendant‘s cell phones to reveal their real-time location constituted a search in the constitutional sense. See Commonwealth v. Almonor, 482 Mass. , (2019) (“society reasonably expects that the policе will not be able to secretly manipulate our personal cell phones for any purpose, let alone for the purpose of transmitting our personal location data“). Although the police‘s conduct was a search in the constitutional sense, our analysis does not end there.
a. Deshowitz‘s cell phone. We first look to determine if the defendant has standing to challenge the search of Deshowitz‘s cell phone. We conclude that he does not. See
In any event, the defendant‘s challenge of the search of Deshowitz‘s cell phone would be futile because the search was justified by the emergency aid exception. See Commonwealth v. Raspberry, 93 Mass. App. Ct. 633, 640-641 (2018) (emergency exception applied where police had objectively reasonable grounds to believe that emergency aid might be needed). Police were investigating a homicide and learned that the victim was last seen alive with Deshowitz. Tuitt spoke with her on her cell phone, but was concerned that she was speaking in a whisper and pausing before answering his questions. There were rеasonable grounds to believe emergency aid might be needed especially after Deshowitz, in answering Tuitt‘s coded questions, indicated that she was not able to speak freely.
Conclusion. We affirm the defendant‘s convictions and the order denying his motion for a new trial.
So ordered.