427 Mass. 108 | Mass. | 1998
A jury convicted the defendant of murder in the first degree as a joint venturer under theories of deliberate premeditation and extreme atrocity or cruelty. On appeal, the defendant claims that the judge erred in (1) denying his motion to suppress incriminating statements he made to police; (2) denying his motion for a required finding of not guilty; and
Facts. We set forth the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with certain issues raised. See Commonwealth v. Nichypor, 419 Mass. 209, 210 (1994); Commonwealth v. Burnett, 417 Mass. 740, 741 (1994). On the evening of June 3, 1993, the defendant, two companions, and the victim purchased a case of beer and a bottle of vodka, and then proceeded to an area known as “Sharon Woods” in Sharon. The four spent the next two hours drinking in a secluded area of the woods near Gavin’s Pond. While still in the woods at approximately 9 p.m., the defendant and his two companions secretly made plans to “jump” the victim. Soon thereafter, the three attacked the victim by wrapping a jacket or shirt around the victim’s head, knocking him to the ground, and beating him with their fists and feet. They also removed the victim’s clothing as he lay motionless on the ground. One of the defendant’s companions then found a stick with which he subsequently penetrated the victim’s rectum and struck his testicles. For his part, the defendant conceded that he “just kept hitting” and “kicking” the victim. The attack lasted about thirty minutes. At this point, the victim’s face was still covered, and there were no signs that he was either conscious or breathing. The defendant’s two companions then dragged the victim to the edge of the pond and held his head under water for an extended period. The defendant checked the victim’s pulse and found none. Finally, one of the defendant’s companions stabbed the victim in the neck. They then covered the half-submerged body with a blanket and sticks from the woods, and the three left the scene.
After finding the victim’s body and learning that he had last been seen in the company of the defendant and his two companions, the police interviewed the defendant on the morning of Saturday, June 5. He told them at that time that, on the night of the victim’s disappearance, he and his two companions had dropped off the victim at 8 p.m. at Wrentham Center. He then left the police station. At approximately 6 p.m., however, the defendant voluntarily returned to the station, and was
1. The defendant’s statement. At a suppression hearing, the motion judge found the following facts. On his arrest the defendant was advised of his Miranda rights, and chose not to make any statements at that time. After his father encouraged him to speak openly with the police, the defendant agreed to be interviewed again. The interview was tape recorded by the police. At the outset, the defendant was given a written form containing Miranda warnings. State police Lieutenant Robert Zepf then read the form aloud to the defendant. The defendant acknowledged that he understood each right, and subsequently signed the Miranda form. Over the next hour and twenty minutes, the defendant made statements linking himself to the victim’s death.
On appeal, the defendant claims that the judge erred in denying the defendant’s motion to suppress these statements. “In reviewing a judge’s determination regarding a knowing waiver of Miranda rights and voluntariness, we ‘grant substantial deference to the judge’s ultimate conclusions and we will not reject a judge’s subsidiary findings if they are warranted by the evidence.’ ” Commonwealth v. Mandile, 397 Mass. 410, 412 (1986), quoting Commonwealth v. Benoit, 389 Mass. 411, 419 (1983). “However, we conduct an independent review to ascertain whether the judge properly applied the law.” Commonwealth v. Rodriguez, 425 Mass. 361, 364 (1997). The Commonwealth has the burden of proving beyond a reasonable doubt that a Miranda waiver was valid. Commonwealth v. Magee, 423 Mass. 381, 386 (1996). “To be valid [a] waiver must be made voluntarily, knowingly, and intelligently.” Id., quoting Commonwealth v. Edwards, 420 Mass. 666, 670 (1995). In determining the voluntariness of a waiver, “the court must examine the totality of the circumstances surrounding the making of the waiver.” Commonwealth v. Magee, supra at 386, quoting Commonwealth v. Edwards, supra at 670. The relevant factors include “promises or other inducements, conduct of the defendant, the defendant’s age, education, intelligence and emotional stability, experience with and in the criminal justice system, physical and mental condition, the initiator of the discussion of a deal or leniency (whether the defendant or the police), and the details of the interrogation, including the recitation of Miranda warnings.” Commonwealth v. Mandile, supra at 413.
2. Motion for required finding of not guilty. The defendant
Specifically, the defendant claims that the Commonwealth failed to prove beyond a reasonable doubt that he shared the requisite intent for conviction under a joint, venture theory. In order to convict a defendant as a joint venturer, the Commonwealth must establish that the defendant “was (1) present at the scene of the crime, (2) with knowledge that another intends to commit the crime or with intent to commit a crime, and (3) by agreement . . . willing and available to help the other if necessary.” Commonwealth v. Bianco, 388 Mass. 358, 366, S.C., 390 Mass. 254 (1983). “Additionally, the Commonwealth must show that the defendant shared with the principal the mental state required for the crime of murder.” Commonwealth v. Semedo, 422 Mass. 716, 719 (1996). The mental state required for murder is malice aforethought. Malice aforethought includes intent to kill or cause grievous bodily injury. Alternatively, malice may be inferred if, in the circumstances known to the defendant, “a reasonably prudent person would have known that according to common experience there was a plain and strong likelihood that death would follow the contemplated act.” Commonwealth v. Grey, 399 Mass. 469, 470 n.l (1987).
Here, the jury could reasonably have found from the evidence presented by the Commonwealth that the defendant shared malice aforethought with his companions. “The jury may infer the requisite mental state from the defendant’s knowledge of the circumstances and subsequent participation in the offense.” Commonwealth v. Soares, 377 Mass. 461, 470, cert. denied, 444 U.S. 881 (1979). According to his own statement to the police, the defendant struck the first or second blow of the attack, knocking the victim to the ground. He subsequently hit the victim “in the chest” and “on the jaw,” and “kicked” him during the next thirty minutes. From this evidence, the jury could
3. Joint venture instructions. The defendant next claims that the judge’s joint venture instructions were erroneous in several respects. We reject the defendant’s claims, but will address each individually.
First, the defendant maintains that the judge’s instructions effectively permitted the jury to find joint venture based merely
“[Wjhat is required is that the Commonwealth prove beyond a reasonable doubt that [the defendant] intentionally participated in some meaningful way in the offense either by counseling, hiring, otherwise procuring the principal or the other venturers to commit the crime, by agreeing to stand by, at or near the scene, to render aid, assistance, encouragement if it became necessary or to assist the perpetrators of the crime in making an escape from the scene. . . . The Commonwealth must show that the defendant somehow participated in the venture . . . to the extent that he sought to make that venture succeed. . . . However, Jurors, mere knowledge that a crime is being committed is not sufficient. . . . The evidence must show more than mere presence at the scene even coupled with the knowledge of the planned act. Mere acquiescence, passive acquiescence, is not sufficient to warrant a conviction. There must be some evidence of some actual participation and assistance by [the defendant] in the perpetration of the crime.” (Emphasis added.)
The judge subsequently explained to the jury that “the Commonwealth must prove beyond a reasonable doubt that [the defendant] shared the mental state or the intent of the persons, the other persons, allegedly perpetrating the crime.” We conclude that the judge’s instructions adequately conveyed all the requirements for conviction under a joint venture theory.
Second, the defendant contends that the judge should have
Third, the defendant maintains that the judge improperly instructed the jury regarding abandonment and withdrawal.* *
4. General Laws c. 278, § 33E. Finally, the defendant requests us, pursuant to our power under G. L. c. 278, § 33E, to order a new trial or to reduce the conviction to a lesser degree of guilt. He maintains that there was insufficient evidence to support his conviction as a joint venturer. He alternatively contends that his conviction for murder in the first degree was unfair, in light of the fact that one of his coventurers pleaded guilty to murder in the second degree. After reviewing the entire record, however, we have concluded that the evidence was sufficient to convict the defendant of murder under a joint venture theory. Moreover, the undisputed brutality of this attack leaves us with little doubt that a conviction of murder in the first degree, and nothing less, was appropriate. Accordingly, we decline to exercise our power under G. L. c. 278, § 33E, to order a new trial or to reduce the conviction.
Judgment affirmed.
For similar reasons, we also reject the defendant’s claim that his statement was involuntary. “Due process requires a separate inquiry into the voluntariness of the [defendant’s] statement, apart from the validity of the Miranda waiver.” Commonwealth v. Magee, 423 Mass. 381, 387 (1996). Although the validity of a Miranda waiver and voluntariness are distinct issues, “they are both determined in light of the totality of the circumstances and they share many of the same relevant factors.” Commonwealth v. Edwards, 420 Mass. 666, 673 (1995). As previously discussed, the judge in the present case found that the defendant was seventeen years old, had a tenth-grade education, and was generally coherent at the time of his statements. He received Miranda warnings both orally and in writing, and subsequently waived his rights. In addition, there was no evidence of improper behavior by the police. Indeed, the interrogation lasted less then two hours, and included a nineteen-minute
The defendant does not contest the sufficiency of the evidence on premeditation. The evidence recited demonstrates that there was ample evidence warranting the jury’s finding in this regard.
The defendant claims that he objected to the charge on this basis, but the Commonwealth maintains that the defendant only objected to the Commonwealth’s request for instructions and did not raise this objection which he now seeks to raise on appeal. We do not resolve the dispute and treat the defendant’s objection as though it had been raised below.
The judge’s statement, to which the defendant takes particular exception, that, “[i]f one is in agreement and in a position to render aid, he is an abettor even if he did not participate in the actual perpetration of the crime because his presence may have encouraged the perpetrators by giving the hope of immediate assistance,” was wholly appropriate. See Commonwealth v. Costa, 407 Mass. 216, 224-225 (1990); Commonwealth v. Longo, 402 Mass. 482, 486 (1988). Similarly, her instruction that “sharing [intent] may be in a conditional sense,” has consistently been approved by this court. See Com
Again it is doubtful whether this claim was raised below but we pass over this question and dispose of it on the merits.