The defendant, Dirceu Semedo, was convicted of murder in the first degree and assault and battery by means of a dangerous weapon. He appeals from the conviction of murder in the first degree, claiming that the trial judge committed error in (1) the denial of his motion for a required finding of not guilty; (2) the jury instructions on joint venture; (3) the jury instructions on extreme atrocity or cruelty and; (4) the denial of his request for a severance after his codefendants allegedly introduced evidence prejudicial to him.
We recite the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with specific issues raised. See Commonwealth v. Nichypor,
While Sarjeant and his companions were inside the restaurant, a group of young men, including Semedo, gathered on a traffic island in front of the restaurant. One of the young men, James Villaroel, threw a beer bottle against the front of the restaurant causing the victim and his companions to turn and look. He then shouted, “Let’s shut him down” (or words to that effect) and moved toward the restaurant. The rest of the group, including Semedo, followed. Villaroel entered the
One to one and one-half minutes into the attack, Villaroel pulled a knife from his back pocket and began stabbing Sarjeant. During the stabbing, the other attackers, including Semedo, continued to punch, kick, and stomp on the victim. The attackers left as a group when Sarjeant fell to the floor and became unconscious. Sarjeant was beaten about the head and face. He was stabbed repeatedly.
The police arrived promptly, followed by medical personnel. Their efforts to save Sarjeant were in vain. Sarjeant died while en route to the hospital. He had bled out his entire blood volume on the floor of the Tasty Chicken restaurant.
An autopsy of Sarjeant revealed seven or more independent areas of blunt trauma to the head and facial area, nine stab wounds to the neck, back, and thighs and one cutting wound. The medical examiner who performed the autopsy opined that no one head or facial trauma was in and of itself fatal but he could not determine with medical certainty whether the combined effect of the head and facial injuries was fatal. He concluded that Sarjeant died as a result of the combination of multiple stab wounds and blunt head trauma.
At and prior to trial, Semedo was identified by three witnesses as having participated in the attack.
I. Denial of motion for a required finding of not guilty. In reviewing a motion for a required finding of not guilty, the
To sustain a conviction of murder in the first degree by joint venture, the Commonwealth must prove beyond a reasonable doubt that the defendant was present at the scene of the crime, with knowledge that another intended to commit a crime, and by agreement was willing and available to help the other if necessary. Additionally, the Commonwealth must show that the defendant shared with the principal the mental state required for the crime of murder. Commonwealth v. Clarke,
Semedo followed Villaroel into the restaurant and actively participated with others in the brutal beating of Sarjeant. From this, the jury could infer agreement among the joint venturers. Commonwealth v. Longo,
The mental state required for murder is malice aforethought. Malice aforethought may be shown by proof that the defendant, without justification or excuse, intended to kill the victim. Malice aforethought 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. Judge,
The jury reasonably could have found that Semedo possessed malice. There was evidence that Semedo participated with five to eleven other men in a brutal battery on Sarjeant and that Semedo battered the victim’s head and body by means of a dangerous weapon, namely a shoe. See Commonwealth v. Mahoney,
If Semedo possessed the malice aforethought required for a conviction of murder, he is guilty as a joint venturer even if he did not hold the murder weapon or inflict the fatal blows.
Because the Commonwealth proceeded on the theory of murder in the first degree by extreme atrocity or cruelty, “the evidence must be of such a character as to show that the crime was committed [in] circumstances indicating something more than ordinary atrocity or cruelty.” Commonwealth v. Connolly,
Based on the evidence, there was no error in submitting to the jury the issue of the defendant’s guilt based on extreme
II. Jury instruction on murder by joint venture. The defendant contends that in order to convict him of murder by joint venture, the Commonwealth must prove beyond a reasonable doubt that he knew that the principal, Villaroel, was armed with a knife.
The judge ruled that the Commonwealth was not required to prove that Semedo knew the principal, Villaroel, was armed because possession of a dangerous weapon was not an element of the crime of murder by extreme atrocity or cruelty. The judge instructed the jury to this effect. He also instructed that the Commonwealth was required to prove beyond a reasonable doubt that a defendant who was not armed with a knife acted with malice. The charge is set forth in the margin.
When reviewing jury instructions, we look to the charge in
When the theory of first degree murder is murder by extreme atrocity or cruelty, knowledge of a joint venturer’s possession of a weapon is not necessary. Commonwealth v. Colon-Cruz,
The judge correctly instructed the jury on the three prongs of malice and properly instructed them that they could not convict the defendant of murder in the first degree without first determining that the defendant himself possessed malice. The judge properly and repeatedly instructed the jury that they could not infer malice on the part of the defendant Semedo from the possession of a dangerous weapon by Villaroel unless the Commonwealth proved beyond a reasonable doubt that Semedo had knowledge at the time of the joint venture that Villaroel possessed a weapon.
The defendant would have us hold that the jury could only determine that he possessed malice if they found that he knew at the time of the assault that Villaroel possessed a knife.
III. Jury instruction on extreme atrocity or cruelty. Relying on Commonwealth v. Hunter,
In Commonwealth v. Cunneen, supra, we delineated a number of evidentiary considerations which jurors may consider in deciding whether a murder was committed with extreme atrocity or cruelty. We said the jurors should consider evidence of indifference to or taking pleasure in the victim’s suffering, consciousness and degree of suffering of the victim, extent of physical injuries, number of blows, manner and force with which they were delivered, instrument employed, and disproportion between the means needed to cause death and those employed. Cunneen, supra at 227. In
The issue before us is whether the principle enunciated in Hunter should be applied retrospectively to a case tried before this court issued its opinion in Hunter. We conclude that Hunter is not retroactive. The defendant was tried before our decision in Hunter, he did not request instructions in accord with what we decided in Hunter, and he did not object to the charge given. In these circumstances, we apply the Hunter principle only if there is a substantial likelihood of a miscarriage of justice. See Commonwealth v. Cunneen, supra at 229; Commonwealth v. Shelley,
We conclude that there is no substantial likelihood of a miscarriage of justice requiring reversal on the basis of the instructions on extreme atrocity or cruelty. See Commonwealth v. Rosa, ante 18, 31 (1996) (no substantial likelihood of miscarriage of justice where charge made repeated reference to Cunneen factors). The judge clearly and properly delineated the Cunneen factors in his instructions. After uttering the sentence at issue, the judge again discussed the Cunneen factors and instructed the jurors that they “should determine, based upon the factors previously stated and
We add that, in the future, judges should not instruct jurors that “extreme atrocity or cruelty is not limited to cases with such evidence.” In accord with Hunter, from the date of this opinion, the judge should delineate the factors for the jurors’ consideration and inform the jurors that they must base their verdict of guilty of murder by extreme atrocity or cruelty on evidence of at least one of the delineated considerations.
IV. Denial of motion to sever. Semedo asserts that severance of his case was required because the judge allowed his two codefendants to offer evidence prejudicial to him. Specifically he asserts that the judge admitted in evidence hearsay statements of witnesses. He also alleges the judge erred in admitting evidence of a prior unrelated robbery. We conclude that there was no error in the denial of Semedo’s motion to sever because he was not prejudiced by the evidence offered at the joint trial. We consider each of the allegedly prejudicial statements in turn.
a. Hearsay statements of eyewitnesses. In furtherance of their defenses, the codefendants Rezende and Barbosa offered
Semedo’s counsel participated with the judge, prosecutor, and other defense attorneys in redacting the statements to remove prejudice to Semedo. The Commonwealth argues that Semedo waived his objection to admission of the testimony by cooperating with the judge in redacting the statements. We reject the Commonwealth’s argument that by participating in the redaction Semedo waived objection to the admission of the statements. A defendant does not waive his objection to the admission of evidence by cooperating with counsel and the court on redaction, if he objects to admissions of the statement after it has been redacted.
The defendant, however, is not entitled to relief as he was not prejudiced by the error. All redactions requested by the defendant were made, including redaction of an identification of Semedo by one of the declarants as a participant in the attack. As redacted, this statement was merely cumulative of other evidence which placed Semedo at the scene and described the nature of the attack. Cf. Commonwealth v. Helfant,
b. Evidence of chain snatching. Over the objection of Semedo, counsel for the codefendant Rezende was allowed to elicit from a witness, on redirect examination, that on the night of the murder, the witness, with his girl friend, was in the vicinity of the homicide. A group of young, black men approached them and one of the men snatched a chain from the girl friend’s neck. Neither of the codefendants was among the group. On recross-examination by Semedo, the witness said that Semedo was standing apart from the group when the young man snatched the chain. Immediately following this testimony, the judge instructed the jury that the testimony as to the chain-snatching incident was admitted in evidence solely as to whether the witness would remember who was present and whether he would be friendly or unfriendly toward the people present.
This evidence was relevant to the codefendants’ defense as it supported their contention that they were not in the vicinity of the murder. The testimony did not implicate Semedo in the prior criminal activity and the judge gave prompt and comprehensive limiting instructions. There was no prejudice to Semedo. See Commonwealth v. Jackson,
V. Relief under G. L. c. 278, § 33E. We have considered the entire case on the law and the evidence, see G. L. c. 278, § 33E, and we conclude that the interests of justice do not
Judgment affirmed.
Notes
Semedo has not appealed from the conviction of assault and battery by means of a dangerous weapon. We, therefore, review only the conviction of murder in the first degree.
The witnesses were Shahid Butt and Fazal Manzoor Khan, co-owners of the Tasty Chicken restaurant, and Fazal Mansoor Khan, cook at the Tasty Chicken. Each independently identified Semedo’s photograph from an array containing twenty photographs. Semedo has not challenged the array on appeal.
Barbosa and Rezende were acquitted of all charges. In a separate trial, codefendants Villaroel, Johnson, Duarte, and Barros were convicted of murder in the first degree and assault and battery by means of a dangerous weapon. Appeals have not yet been heard.
“If the Commonwealth proves beyond a reasonable doubt that a defendant was part of a joint venture and that he acted, he, himself, acted with malice under one of the three prongs of the definition of malice, under any one of the three prongs of the definition of malice, and that a joint venturer
“The Commonwealth is not required to prove that a defendant who was not armed with a dangerous weapon; for example, a knife, knew that a co-defendant was armed with a knife. However, the Commonwealth is required to prove beyond a reasonable doubt that a defendant who was not armed with a knife acted with malice, and that he himself intended to inflict grievous bodily harm on [the victim], or he intended to kill [the victim], or he intended to commit an act which would create a plain and strong likelihood that death would follow the contemplated act.”
The judge instructed as follows: “Now, before you may infer malice in the intentional use of a dangerous weapon against any joint venturer who is unarmed himself, the Commonwealth must satisfy you beyond a reasonable doubt that he knew that a joint venturer with whom he was then engaged in a joint venture was using a dangerous weapon. So you can’t draw an inference of malice or the intentional use of a dangerous weapon against a joint venturer who is not armed with a dangerous weapon unless the Commonwealth satisfies you, unless the Commonwealth satisfies you that he knew that another joint venturer was, during the joint venture at the time, using a dangerous weapon.”
In response to a question from the jury, the judge reiterated this instruction, informing the jury as follows: “[Y]ou cannot, you shall not draw an inference of malice against an unarmed joint venturer from an armed joint venturer’s use of a dangerous weapon unless the Commonwealth proves beyond a reasonable doubt that the unarmed joint venturer knew that the armed joint venturer was armed with and was using a dangerous weapon during the joint venture. When I say during the joint venture, that is while the unarmed joint venturer was still part of the joint venture.”
While not relying on this ground, we note that because the jurors were properly instructed on the joint venture theory of assault and battery by means of a knife and they convicted Semedo under this theory, the jury necessarily must have concluded that Semedo had knowledge at the time of the joint venture that Villaroel had a knife.
Because the defendant neither objected at trial to the instruction on extreme atrocity or cruelty (it was objected to only by a codefendant who was acquitted) nor briefed the issue to this court, we consider only whether relief under G. L. c. 278, § 33E, is appropriate. See Commonwealth v. Rosa, ante 18, 29-30 (1996) (where trial counsel did not object to instruction on grounds proffered on appeal, we look only for a substantial likelihood of a miscarriage of justice).
The cases cited as support by the Hunter court did not address the issue whether presence of one of the factors was mandatory. See Commonwealth v. Freiberg,
The validity of their exercise of this privilege is not challenged.
The witnesses admitted witnessing the crime but denied being inside the restaurant or involved in the attack. The statements exculpated rather than inculpated the declarants.
The girl friend later testified substantially in accordance with the witness. No limiting instruction was requested or given regarding her testimony. Nor was there a renewal of Semedo’s objection, his request for severance or his request for mistrial.