Commonwealth v. OrtizCommonwealth v. Ortiz
- Reporters:
- , ,
- Before:
- O'Connor
A jury found the defendant guilty of murder in the second degree as charged in two indictments, based on a felony-murder theory, and of unlawfully carrying a firearm under his control in a vehicle, attempted assault
At the close of the Commonwealth’s case, and again at the close of all the evidence, the defendant moved for required findings of not guilty on all the indictments. The judge de: nied those motions as well as similar postverdict motions. On appeal, the defendant argues that the judge’s rulings with respect to the sufficiency of the evidence to support the convictions of murder and assault and battery by means of a dangerous weapon were erroneous.
In reviewing the trial judge’s rulings on the motions for required findings of not guilty, we’ consider whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to permit a jury to infer beyond a reasonable doubt the essential elеments of the crimes charged. Commonwealth v. Walsh, 407 Mass. 740, 741 (1990). Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
The evidence most favorable to the Commonwealth in this case may be fairly summarized as follows. On November 12, 1985, the defendant and his brother, Eddie Ortiz, left their father’s apartment in Springfield and got into an automobile to search for Jose Rodriguez. The Ortiz and Rodriguez families had had a longstanding feud. The Ortizes believed that Jose Rodriguez was one of three men who had been at the father’s apartment earlier on November 12 with what looked like a handgun. They were looking for Eddie. Eddie and the defendant brought a firearm and some ammunition with them in the automobile. Eddie drove the automobile to the neighborhood in which Rodriguez lived and drove around the block six times hoping to find him. Rodriguez was not found,
As the Ortiz vehicle was arriving at the apartment, a police cruiser with two officers in it, with its lights flashing, pulled up behind the vehicle. The driver of the cruiser, Officer Alain Beauregard, got out and approached the drivеr’s side of the Ortiz vehicle. His partner, Michael Schiavina, briefly remained in the police cruiser to use the car radio. Beauregard tried unsuccessfully to open the driver’s side door of the Ortiz vehicle, after which he was shot and killed by Eddie. By then, Schiavina had opened the vehicle’s passenger door and was trying to pull the defendant from the vehicle. Schiavina was then shot and killed by Eddie. There was evidence that, as the police officers approached the automobile, both the defendant and Eddie reached for the firearm but Eddie grabbed it first. There was no evidence that- the defendant fired the gun. After the shootings, the defendant and Eddie fled the scene. The defendant was found several hours later hiding in a tent in the backyard of his sister’s home. Eddie committed suicide before he could be taken into custody.
As to the murder indictments, the Commonwealth’s theory at trial was that the defendant was guilty of felony-murder because the two homicides took place during the commission of one or more of the following felonies for which the defendant was responsible: unlawfully carrying a firearm in a motor vеhicle; attempted assault and battery by means of a dangerous weapon on Rodriguez; attempted assault by means of a dangerous weapon on Rodriguez. By a special verdict, the jury found unlawfully carrying a firearm in a motor vehicle to be the sole. predicate felony underlying the two felony-murder convictions.
“As developed by the case law, the felony-murder rule in the Commonwealth imposes criminal liability for homicide on all participants in a certain common criminal enterprise if a death occurred in the course of that enterprise.”
Common
In addition, in order for this case to come within the felony-murder rule, the underlying felony — the carrying of a firearm in a vehicle — must be inherently dangerous to human life or the crime actually must have been committed with conscious disregard on the part of the defendant for the risk to human life.
Commonwealth
v.
Carter,
396 Mass. 234, 234-235 (1985).
Commonwealth
v.
Moran,
387 Mass. 644, 648-651 (1982).
Commonwealth
v.
Matchett,
386 Mass.
We are satisfied that the evidence was sufficient to warrant the murder convictions. It is clear that the evidence recited above would warrant a finding that the defendant was a joint venturer with his brother, Eddie Ortiz, in carrying a firearm in a vehicle. Furthermore, while it may be fairly arguable that carrying a firearm in a vehiсle is not inherently dangerous (especially if the firearm is not loaded), the jury in any event reasonably could have found that the defendant in this case committed that crime with conscious disregard for the risk to human life because of the obvious risk presented by the defendant and his brother’s driving around with a loaded .357 Magnum revolver between them looking for an individual with whom their family had а longstanding feud.
There was evidence of the other elements of felony-murder, too. The same evidence that supported a finding of the defendant’s conscious disregard for the risk to human life also warranted a finding that homicide was a natural and probable consequence of the felonious carrying of a firearm. Finally, the jury could properly have found thаt the underlying felony, one that was clearly independent of the homicides in the sense that it was distinct from the acts of violence which resulted in the police officers’ deaths, and therefore not offensive to the rule of Commonwealth v. Quigley, 391 Mass. 461, 466 (1984), was sufficiently connected with and incident to the homicides for the felony-murder rule to apply. We note as well the presence of сonsciousness of guilt evidence, in the form of evidence of flight. We conclude that the evidence was sufficient to warrant the two verdicts of murder in the second degree.
Before confronting the defendant’s argument that the evidence was insufficient to warrant his conviction of attempted
Because the defendant did not object to the jury instructions, our review of the instructions is limited to a determination whether there is a substantial risk of a miscarriage of justice.
Commonwealth
v. Freeman, 352 Mass. 556, 563-564 (1967). In response to the Commonwealth’s request, the judge charged the jury that they should decide whether the defendant was a joint venturer with Eddie Ortiz with respect to the crime of attempted assault and battery with a dangerous weapon. However, in connection with the indictment for carrying a firearm in a vehicle, the Commonwealth informed the judge that it was not proceeding on a joint venture theory, but only on the theory that the defendant’s possession of the gun in the vehicle was joint possession. As a result, the judge did not instruct thе jury concerning joint venture principles as they might apply to that indictment. Since the carrying charge was found by the jury to be the sole predicate felony for application of the felony-murder rule, and since there was no evidence that the defendant personally shot the police officers, the defendant argues not only that the judge committed error by omitting from his charge any discussion of joint venture and its importance in assessing the defendant’s guilt on the murder indictment based on the carrying
We are not persuaded by the defendant’s argument. As we have discussed above, the evidence warranted a finding of joint venture as to the carrying charge, аnd, in our view, in light of the jury’s finding that the defendant was guilty of carrying a firearm without reference to a joint venture theory, it is highly unlikely that, had the jury been instructed as to joint venture principles in connection with the carrying charge, the jury’s verdicts on the murder indictments would, have been different. It seems probable that, correctly instructed, the jury would have been satisfied beyond a reasonаble doubt that the defendant assisted or encouraged Eddie Ortiz to carry the .357 Magnum revolver and shared with him the intent to do so.
Lastly, with respect to the jury instructions concerning the murder indictments, we conclude that the judge’s failure to instruct the jury that the defendant was not responsible for the homicides unless the jury were to find that they were the natural and probable consequenсes of the underlying felony, while constituting error, did not create a substantial risk of a miscarriage of justice within the rule laid down by Commonwealth v. Freeman, supra. The evidence set forth earlier in this opinion not only was legally sufficient to warrant a finding that the homicides were foreseeable consequences of Eddie Ortiz and the defendant’s jointly carrying a firearm in a vehicle, but also appears tо be sufficiently persuasive to counter the contention that there is a substantial risk that, correctly instructed, the jury would not have found that the homicides were natural and probable consequences of the felony.
The defendant has made a plethora of other arguments relative to the murder convictions. He argues here for the first time that the judge erred by instructing the jury that they could consider evidence of the defendant’s flight as bearing on consciousness of guilt. There was no error in this regard. The defendant also argues that the judge improperly admitted evidence offered by the Commonwealth, permitted
We turn to the defendant’s challenge to the sufficiency of the evidence to warrant a finding that the defendant was guilty of attempted assault and battery with a dangerous weapon on Jose Rodriguez, the man for whom, according to the evidence, Eddie Ortiz and the defendant searched unsuccessfully.
In
Commonwealth
v.
Kennedy,
170 Mass. 18, 20 (1897), we “assume [d] that an act may be done which is expected and intended to accomplish a crime, which is not near enough to the result to constitute an attempt to commit it . . . ,” and in
Commonwealth
v.
Peaslee, 177
Mass. 267 (1901), we considered how proximate the overt act must be
The court, in
Peaslee,
in an opinion written by Chief Justice Holmes, reasoned: “The statute does not punish every act done toward the commission of a crime, but only such acts done in an attempt to commit it. The most common types of аn attempt are either an act which is intended to bring about the substantive crime and which sets in motion natural forces that would bring it about in the expected course of events but for an unforeseen interruption, as in this case if the candle had been set in its place and lighted but had been put out by the police, or an act which is intended to bring about the substantive crime аnd would bring it about but for a mistake of judgment in a matter of nice estimate or experiment, as when a pistol is fired at a man but misses him, or when one tries to pick a pocket which turns out to be empty. In either case the would-be criminal has done his last act. . . . That an overt act although coupled with an intent to commit the crime commonly is not punishable if further acts are contemplated as needful, is expressed in the familiar rule that preparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor although there is still a
locus penitentiae
[opportunity to withdraw] in the need of a
In reversing the conviction, the Peaslee court concluded that, although the evidence was sufficient tо show that the defendant had an intent to set the fire himself, the evidence was insufficient for conviction on that theory because it did not show that he had that intent “at a time and place where he was able to carry it out.” Id. at 273-274. “On the other hand,” the court said, “if the offence [was] to be made out by showing a preparation of the room and a solicitation of sоme one else to set the fire, which solicitation if successful would have been the defendant’s last act, the solicitation must be alleged [in the indictment] as one of the overt acts.” Id. at 274. Since the solicitation was not alleged in the indictment, the conviction was .reversed.
We think that the lesson of the
Kennedy
and
Peaslee
cases is that, even though the evidence would have warranted a finding that the defendant intеnded and prepared for an assault and battery by means of a dangerous weapon on Jose Rodriguez, the evidence was insufficient to show a violation of
Our decision is in accord with the decisions in People v. Rizzo, 246 N.Y. 334, 336-339 (1927), and State v. Christensen, 55 Wash. 2d 490, 491-493 (1960). We are aware that statutes in a few other States and the Model Penal Code, § 5.01 (2) (Proposed Official Drаft 1962) (“lying in wait, searching for or following the contemplated victim of the crime,” if such conduct is “strongly corroborative of the actor’s criminal purpose,” “shall not be held insufficient [to constitute an attempt] as a matter of law”), would call for a different result. However, to date the Legislature in this Commonwealth has not enacted such a statute, and we therefore follow the trend of our decisions, as few as they may be.
So ordered.