Commonwealth v. MoranCommonwealth v. Moran
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- O'Connor
The defendants appeal from convictions, following a jury trial, of murder in the first degree and unarmed robbery. The murder convictions were based on the felony-murder doctrine. The defendants argue that that doctrine, as it has previously been applied in this Commonwealth, is unconstitutional and therefore that it was error for the judge to instruct the jury on felony-murder. We hold that the doctrine is constitutional. However, we examine the felony-murder doctrine as it applies to the common law felony of unarmed robbery, and hold that it was error to instruct the jury that the malice necessary to convict of murder is supplied solely by participation in an unarmed robbery. Accordingly, we reverse the murder convictions. We also reverse the unarmed robbery convictions on the ground that severance of the trial of the defendants was required. We affirm the denial of Moran’s motions for required findings of not guilty.
We recite some of the facts that the jury could have found, reserving others for discussion in conjunction with specific issues raised. The defendants briefly conversed with the victim, William Wronski, outside a bar in Adams on the evening of August 14, 1980. Following that conversation, Wronski and the defendants entered the bar, and Wronski bought them one or more drinks. Wronski left the bar and walked up the street to his pick-up truck. The defendants left the bar and followed Wronski up the street. There was a confrontation at the truck. One or both defendants hit Wronski several times about the head. The defendants placed Wronski in the cab of his truck.
Wronski was intoxicated and had recently eaten a full meal. Because of this intoxication, the blows to his head, and the position of his body in the truck, Wronski vomited
1. Sufficiency of the evidence. At the close of the Commonwealth’s case, Moran moved for required findings of not guilty on the charges of unarmed robbery and murder. The motions were denied, and Moran appeals, contending that the evidence introduced by the Commonwealth was insufficient for the jury to conclude that he intended to take or did take Wronski’s wallet, or that he formed such an intent before or during the assault. Based on these contentions, Moran argues that he would not be guilty of either robbery or felony-murder predicated on robbery.
Robbery may be punished more severely than larceny from the person. Compare
Evidence of the following facts was admitted against Moran as part of the Commonwealth’s case to prove his participation in the robbery. On the evening of his death, Wronski had at least $70, which he had put into his wallet, and with which he bought one or more drinks for the defendants in the bar. After Wronski had left the bar and had walked toward the truck, Moran emerged from the bar and told Chenail to go and get Wronski because he owed them another drink. Chenail and Moran then both jogged after
Moran argues that this evidence shows only that he had an opportunity to take Wronski’s wallet and does not permit an inference that he either intended to or did take it, or that he formed such an intent before or during the assault. We disagree. Criminal intent generally can be proved only by inferences from facts, and those inferences need only be reasonable. Commonwealth v. Casale, 381 Mass. 167, 173-174 (1980). The evidence warranted inferences that Moran knew Wronski had money, that he directed Chenail to stop Wronski in order to obtain more to drink, that he assaulted Wronski with the intent to take his money, and that he took the money, either as principal actor or as joint venturer with Chenail. See Commonwealth v. Ambers, 370 Mass. 835, 839 (1976). Here, as in Commonwealth v. Blow, 370 Mass. 401, 407 (1976), the evidence was sufficient for the jury to “find that [the defendants] . . . formed a plan to rob [the victim], or had, at least, an understanding to take advantage of an intoxicated [man] that encompassed a probability of robbery.” We hold that the evidence was sufficient to satisfy a rational trier of fact beyond a reasonable doubt of each element of the crime of robbery. Commonwealth v. Toney, 385 Mass. 575, 582 (1982). Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). Moran’s motions for required findings of not guilty of unarmed robbery and of murder based on the felony-murder rule, grounded on the contention that there was insufficient evidence of unarmed robbery, were correctly denied.
2.
Constitutionality of the felony-murder rule.
Both defendants were tried and convicted of murder based solely on the application of the felony-murder rule. They objected to the judge’s instructing the jury on felony-murder, arguing that felony-murder “as structured in Massachusetts” is unconstitutional. The defendants’ argument is based on
Sand-
The felony-murder rule is that a homicide committed in the commission or attempted commission of a felony is murder. The rule is defined by common law and is the law of this Commonwealth.
Commonwealth
v.
Matchett,
386 Mass. 492, 502 (1982).
Commonwealth
v.
Ambers,
370 Mass. 835, 839 (1976).
Commonwealth
v.
Rego,
360 Mass. 385, 395 (1971).
2
The defendants argue that murder is an unlawful killing with malice aforethought,
Commonwealth
v.
Campbell,
375 Mass. 308, 312 (1978);
Commonwealth
v.
Amazeen,
375 Mass. 73, 80 (1978);
Commonwealth
v.
Webster,
5 Cush. 295, 304 (1850), and that malice aforethought consists of unexcused intent to kill, to do grievous bodily harm, or to do an act creating a strong and plain likelihood that death or grievous harm will follow,
Commonwealth v. Huot,
380 Mass. 403, 408 (1980);
Commonwealth
v.
Chance,
174 Mass. 245, 252 (1899). The defendants contend that, by conclusively presuming one of these three intentions, the felony-murder rule relieves the Commonwealth of proving an essential element of murder, in
We have said that “[t]he effect of the felony-murder rule is to substitute the intent to commit the underlying felony for the malice aforethought required for murder.”
Commonwealth
v.
Matchett, supra.
This statement suggests that malice aforethought is not an essential element of murder in the circumstances of a homicide occurring in the course of a felony. See
People
v.
Aaron,
409 Mich. 672, 740-742 (1980) (Ryan, J., concurring in part and dissenting in part) (“Malice has nothing to do with common-law felony murder; it is not an element of the crime, and is not properly considered by the jury.”
Id.
at 742). We have also held, however, that felony-murder does require malice aforethought.
Commonwealth
v.
Gricus,
317 Mass. 403, 412 (1944). See
Commonwealth
v.
Balliro,
349 Mass. 505, 512 (1965). In
Commonwealth
v.
Madeiros,
255 Mass. 304, 310, 315 (1926), we approved a jury instruction that “[wjhere a defendant is engaged in the commission or attempted commission of some crime of the degree of felony — that is, a crime punishable by death or imprisonment in the state prison — and some act done by him in the commission or attempted commission of such felony results in the death of some person, the killing is with ‘malice aforethought’ within the meaning of the law, and the killing is murder, although the defendant did not intend to kill or even to harm the deceased. The intention to commit some other felony amounts to ‘malice aforethought’ making the crime murder.” See also
Commonwealth
v.
Gricus, supra
at 411;
Commonwealth
v.
Chance, supra
at 252-253;
People
v.
Aaron, supra
at 714-717; W.R. LaFave & A.W. Scott, Jr., Criminal Law 528 (1972). Assuming, therefore, as the defendants contend, that our common law requires malice aforethought for every type of murder, in felony-murder the intent to commit the underlying felony
is
the required malice aforethought. Our long-standing recognition of a type of malice aforethought peculiar to felony-murder is not inconsistent with our definition of malice aforethought in the nonfelony-
3. Applicability of the felony-murder rule. We observed in Commonwealth v. Matchett, supra at 504-505, that “[t]his court has never automatically applied the felony-murder rule without viewing the facts of the case” and that “[w]e have never delineated exactly which felonies give rise to application of the rule.” In Matchett, we held that, where the underlying felony is extortion, the defendant cannot be convicted of murder based on the felony-murder rule, unless the jury find that the extortion involved circumstances demonstrating the defendant’s conscious disregard of the risk to human life. Id. at 508. Since trial of the present case was completed before Matchett was decided, and substantial justice requires proper application of the felony-murder rule, we review the judge’s jury instructions on felony-murder even though the defendants’ objection was to the constitutionality of the rule and not to its common law application to the facts of this case. Commonwealth v. Stokes, 374 Mass. 583, 587-589 (1978). Commonwealth v. Freeman, 352 Mass. 556, 561-564 (1967). Commonwealth v. Conroy, 333 Mass. 751, 757 (1956).
The holding in Matchett was based on our recognition that extortion can be committed without danger to human life and on the principle that “criminal liability for causing a particular result is not justified in the absence of some culpable mental state in respect to that result.” Matchett, supra at 507, quoting from Gegan, Criminal Homicide in the Revised New York Penal Law, 12 N.Y.L.F. 565, 586 (1966). “A felony-murder rule that punishes [as murder] all homicides committed in the perpetration of a felony whether the death is intentional, unintentional or accidental, without the necessity of proving the relation of the perpetrator’s state of mind to the homicide, violates [this] most fundamental principle . . . .” Matchett, supra at 506-507.
The judge instructed the jury that the “malice aforethought that is required in murder is supplied by the participation in a felony so serious as to call for life imprisonment.” Because the judge gave no instruction that the jury must find conscious disregard of risk to human life in order to apply the felony-murder rule, we reverse the murder convictions. 3
4.
Severance.
Before trial Moran moved for severance of his trial from that of Chenail. The following reports of oral statements made by Chenail to the police were made known to the judge at the hearing on the motion. A report written by Officer Stanley Misiuk stated: “Chenail told me that he did observe Wronski at Chick’s sitting right next to Timothy Moran and two seats from him. It seems Moran was arguing with Wronski about buying some drinks. Wronski left the bar at about 11:30 p.m. and Chenail and Moran followed. Chenail said he stayed by Chick’s while Moran headed south on Columbia Street toward Wronski. Chenail then went south on Columbia Street and caught up with Moran but Wronski was already in his truck. Wronski got
Moran argued that Chenail’s statements would be offered by the Commonwealth against Chenail, that they would seriously prejudice Moran despite any instruction that the jury should only consider them in the case against Chenail, and that Moran was not assured of an opportunity to cross-examine Chenail, and thereby would be denied his Sixth
Chenail’s counsel made an opening statement immediately following that of the prosecutor. Chenail’s counsel told the jury that Chenail would take the stand despite his right to remain silent and would testify that he accompanied Moran to Wronski’s truck, that he saw Wronski lunge and saw Moran punch him once, and that after helping put Wronski back into the truck he left. Counsel also predicted that Chenail would testify that he knew nothing about the wallet until Moran joined him at the car. In short, the opening indicated that Chenail’s testimony would parallel the full statement he gave to Officer Misiuk.
On direct examination by the Commonwealth, after a jury instruction limiting the evidence to Chenail’s case, Officer Misiuk testified to Chenail’s statement as edited by the judge’s pretrial order. On cross-examination by Chenail, over Moran’s objection, Officer Misiuk testified fully to Chenail’s unedited statement inculpating Moran. During this cross-examination the judge again instructed the jury that the evidence was admissible only against Chenail. Moran unsuccessfully renewed his motion to sever and moved for a mistrial. Later, over Moran’s objection, Lieutenant Sibley testified to Chenail’s statement set forth above.
Each defendant was cross-examined extensively by counsel for the other. Cross-examination brought out a number of inconsistencies in each defendant’s testimony and reemphasized those portions of the Commonwealth’s evidence that were particularly damaging to the defendant being cross-examined.
Because Chenail took the stand and was cross-examined by Moran’s counsel, there was no denial of Moran’s right to confront witnesses against him. Bruton v. United States, 391 U.S. 123 (1968). Commonwealth v. Hicks, 377 Mass. 1, 5 (1979). Commonwealth v. Nolin, 373 Mass. 45, 49 (1977). However, our inquiry as to the necessity of severance does not end there.
“If it appears that a joinder ... of defendants is not in the best interests of justice, the judge may upon his own motion or the motion of either party . . . grant a severance of defendants, or provide whatever other relief justice may require.”
In
United States
v.
Crawford,
581 F.2d 489 (5th Cir. 1978), two defendants were convicted of possessing an unregistered sawed-off shotgun, in violation of
Other Federal Courts of Appeal have applied the rule and reasoning of
Crawford.
In
United States
v.
Ziperstein,
601 F.2d 281, 285 (7th Cir. 1979), cert. denied, 444 U.S. 1031 (1980), the court stated: “This circuit has a well-established standard for determining when the claim of ‘mutually antag
In Johnson v. United States, 398 A.2d 354 (D.C. 1979), the trial judge had denied severance motions with the observation, “[Tjhat’s why you prosecute two people caught in the automobile at the same time. One hangs the other.” Id. at 368. In reversing, the court held that the trial judge’s rationale violated the principle of such cases as Rhone v. United States, 365 F.2d 980 (D.C. Cir. 1966), in which the court stated that codefendants must be granted severance when they offer conflicting and irreconcilable defenses such that the jury “will unjustifiably infer that this conflict alone demonstrates that both are guilty.” Id. at 981.
Decisions of the courts of several States accord with the principle enunciated in the cases referred to above. In People v. Hurst, 396 Mich. 1 (1976), the court reversed a conviction where severance had been requested and denied by the trial judge. The court held that a “defendant is entitled to a trial separate . . . from a codefendant who it appears may testify to exculpate himself and incriminate the defendant seeking a separate trial.” Id. at 4. See State v. Holup, 167 Conn. 240, 246 (1974) (“The defenses of the codefendants were not only incompatible but completely antagonistic”); People v. Meisenhelter, 381 Ill. 378, 388 (1942) (“Where defenses are antagonistic and one defendant accuses the other, thus making it impossible for the defendant asking for a severance to have a fair trial, the severance should be granted”); State v. Thibodeaux, 315 So.2d 769, 771 (La. 1975), quoting from State v. Birbiglia, 149 La. 4, 30 (1921) (“There is no case more appropriate for the granting of a severance . . . than a case where each defendant attempts to put the blame upon the other”).
In Murray v. State,
528 P.2d 739 (Okla. Crim. App. 1974), the defendants Murray and Grizzle were tried together and
In this Commonwealth severance is usually a matter within the sound discretion of the trial judge. Commonwealth v. Cepulonis, 374 Mass. 487, 499 (1978). Commonwealth v. Hogg, 365 Mass. 290, 296 (1974). Joinder expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice time and energy to serve upon juries, and avoids the necessity of recalling witnesses to successive trials. Johnson v. United States, supra at 367. Such considerations, however, must yield at some point to the rights of the accused. That point is reached when the prejudice resulting from a joint trial is so compelling that it prevents a defendant from obtaining a fair trial. In such circumstances, and upon the making of a timely motion, failure to sever constitutes an abuse of discretion. 5
This is not a case of codefendants merely pursuing inconsistent trial strategies, as in
Commonwealth
v.
Horton,
376 Mass. 380, 390 (1978), cert. denied sub nom.
Wideman
v.
Massachusetts,
440 U.S. 923 (1979), nor is it like
Common
Failure to sever in such circumstances has several unacceptable consequences. First, each codefendant’s jeopardy invites his perjured testimony, to the detriment of the other codefendant. The Commonwealth’s use of such testimony to obtain a conviction is fundamentally unfair and does not serve the public’s interest in justice. Second, where there is convincing evidence that a crime has been committed by at least one of the defendants, a jury, disinclined for any reason to convict a particular defendant, may be inclined to find the other guilty. There is a danger that the jury will feel compelled to choose between defendants rather than to assess the proof against each defendant separately. Finally, with one defendant pitted against the other, there is a danger that the jury will unjustifiably infer from the conflicting defenses alone that both defendants are guilty. Rhone v. United States, 365 F.2d 980, 981 (D.C. Cir. 1966). Moran’s and Chenail’s defenses were mutually antagonistic and irreconcilable. The prejudice to each defendant was compelling. Tried together, neither defendant could have a fair trial. Severance was required.
The denial of a requested severance does not require reversal unless the request is made at a time when the necessity for severance has been firmly established. A premature request for severance, not renewed when the necessity to sever
Moran supported his severance motions by emphasizing that the irreconcilable differences between the defendants’ extrajudicial statements, and between Chenail’s extrajudicial statements and Moran’s defense, violated his Sixth Amendment right to confront witnesses against him. Our decision is based on a rationale only suggested, but not developed, by Moran at the trial. Nevertheless, substantial justice requires reversal of his unarmed robbery conviction. See Commonwealth v. Stokes, 374 Mass. 583, 587-589 (1978); Commonwealth v. Freeman, 352 Mass. 556, 561-564 (1967); Commonwealth v. Conroy, 333 Mass. 751, 757 (1956).
Although Chenail filed a motion for severance before trial, he did not press it or renew it during trial, nor has he
Judgments reversed.
Verdicts set aside.
Notes
The rule we announce today applies to cases that are pending on direct appeal or as to which the time for direct appeal has not expired on the date of this decision. Our decision does not provide a basis for collateral attack of final judgments. See Linkletter v. Walker, 381 U.S. 618, 627-629, 636-640 (1965); Reddick v. Commonwealth, 381 Mass. 398, 400-404 (1980).
However, the judge’s editing of the testimony of the Commonwealth’s witnesses relative to Chenail’s inculpatory extrajudicial statements was not sufficient to avoid Bruton problems. We expressed the view in Commonwealth v. LeBlanc, 364 Mass. 1, 8 (1973), that a statement of a defendant that neither names nor plainly refers to a codefendant may nevertheless be inculpatory under Bruton if the codefendant otherwise easily can be connected with the statement. “[Tjhere is a danger that juries will make severe implications even from indefinite references, for association is all too easy with a defendant who is conspicuously present in court and who has already been in some way tied to the criminal episode.” Id. at 8.
Here, one police officer was allowed to testify on direct examination by the prosecutor that Chenail had stated, “[H]e was still alive when we left him” (emphasis added). Another police officer, also on direct examination by the prosecutor, testified that when asked how much money he had gotten from Wronski’s wallet, Chenail had responded, “Twenty. We split twenty dollars” (emphasis added). Both of these statements were in-culpatory because the use of the term “we,” in the circumstances of this case, clearly included reference to the other defendant. See Commonwealth v. Sarro, 356 Mass. 100, 101-102 (1969) (admission of statement by one of two defendants charged with auto theft that “[w]e are stealing them for parts” held reversible error under Bruton).
Unfairness to the defendant need not reach the level of deprivation of constitutionally guaranteed due process in order to require severance. In Commonwealth v. McGrath, 358 Mass. 314, 321 (1970), this court noted in dictum that “[a] motion for severance is within the discretion of the trial judge, unless severance is required by constitutional principles.” To the extent this dictum in McGrath is contrary to our decision today, we do not follow McGrath.
Severing the trial of codefendants does not necessarily require mistrial as to both defendants. Here, the trial judge should have granted Moran’s motions for severance and mistrial. However, since Chenail did not timely move for severance, and never moved for mistrial, the judge should have continued Chenail’s trial after granting Moran’s motions. Indeed, the judge having granted Moran’s motions, his failure to continue the trial of Chenail could have barred any retrial of Chenail on double jeopardy grounds. See Jones v. Commonwealth, 379 Mass. 607, 615-620 (1980).