440 Mass. 741 | Mass. | 2004
The defendant appeals from his convictions of murder in the first degree, home invasion, and unlawful possession of a firearm.
1. Facts. We set forth the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with specific issues raised. On the evening of August 9, 1999, Cecil Smith, the victim, was visiting his girl friend, Crystal Rego, at her apartment in Fall River. Smith also supplied Rego with marijuana which she used herself and sold to others. At about 10 p.m., Rego opened the door in response to
Shortly after the murder, Dana Mazyck, who had obtained marijuana from Rego at her apartment earlier that evening, arrived at his girl friend’s apartment and was smoking marijuana in the apartment’s “smoking room.” Ten to twenty minutes after Mazyck’s arrival, the defendant; the codefendant, Michael Holloway; and a third man, Alberto “Tito” Diaz, entered the “smoking room.” Interspersed with numerous failures of memory, Mazyck testified that the three men were “jumpy” and that Stokes said, “We just did some dirt.” He heard the three discuss “a guy being shot, and [that] they didn’t get anything.” Stokes said, “I got him. I think I hit him.” Mazyck also testified that all three of the men were discussing that they went to rob someone, thought the victim had a weapon, and so shot him.
The police located a .22 caliber discharged cartridge casing on the floor of the hall just outside the threshold of Rego’s apartment. They also found a loaded .22 caliber Ruger semiautomatic pistol in the grass less than twenty-five feet from the entrance of Rego’s apartment building. Ballistics testing
2. Required finding on theory of joint venture. The jury were instructed that they could convict the defendant on a theory of either joint venture or principal liability, and the verdict slip reflected that instruction. The defendant maintains that there was insufficient evidence that anyone other than he shot the victim and, thus, his motion for a required finding of not guilty on the murder indictment should have been granted as to his liability as a joint venturer. The defendant’s motion for a required finding did not alert the judge that he was seeking a required finding on a specific theory, i.e., joint venture liability. See Commonwealth v. Berry, 431 Mass. 326, 331 (2000). “[A] generally phrased motion for [a required finding] does not preserve for review the denial of the motion on a specific theory of liability when there was sufficient evidence to withstand the motion on an alternative theory . . . [W]hen the defendant submits a generally expressed motion for a required finding of not guilty in a murder case, the case may be submitted to the
Even had the defendant specified that he sought a required finding as to joint venture liability, there was no error. Liability as a joint venturer requires that the Commonwealth prove that the defendant was present at the scene of the crime, with knowledge that another intended to commit the crime or with intent to commit the crime, and by agreement was willing and available to help the other if necessary. Commonwealth v. Berry, supra at 330. Although the Commonwealth must present evidence that a principal other than the defendant committed the fatal act, the Commonwealth need not prove the identity of the actual perpetrator. Id. at 332. See Commonwealth v. Netto, 438 Mass. 686, 700-701 (2003), citing Commonwealth v. Souza, 428 Mass. 478, 488-489 (1998).
Here, the evidence of joint venture was sufficient to send the case to the jury on that theory. To support a joint venture conviction, “[t]he inferences drawn by the jury need only be reasonable and possible and need not be necessary or inescapable.” Commonwealth v. Brooks, 422 Mass. 574, 577 (1996). The evidence here meets the standard.
When the Commonwealth rested, Rego had identified the defendant as one of the two armed assailants at her door; the identity of the second man was unclear. There was evidence from which the jury could infer that the two men were acting together. The critical question was who fired the fatal shot. The forensic evidence together with Rego’s testimony permitted the inference that it was not the defendant but the second (unknown) assailant who fired the bullet that killed the victim. The evidence permitted the inference that two handguns were involved in the incident, a .22 caliber and a .45 caliber, and the forensic testimony was substantial that the .22 caliber handgun was the weapon that discharged the fatal shot. Rego testified that the person closest to her, i.e., the defendant, had a “square-looking”
As the defendant renewed his motion for a required finding at the close of all the evidence, we must determine whether the Commonwealth’s position deteriorated during the defendant’s case. See Commonwealth v. Johnson, 435 Mass. 113, 118 n.6 (2001); Commonwealth v. Basch, 386 Mass. 620, 622 & n.2 (1982). The identity of the shooter became even less clear during the defendant’s case. One witness testified that Tito Diaz had admitted to being the shooter, but Diaz’s own statements to the police, while suggesting his involvement in the crime, were unclear as to his precise role. Nevertheless, this had no impact on the sufficiency of the evidence, as described above, that the defendant was present at the murder but did not fire the fatal shot. At the close of all the evidence, therefore, it was proper to submit Stokes’s murder indictment to the jury on theories of both individual and joint venture liability. See Commonwealth v. Leftwich, 430 Mass. 865, 868-869 (2000) (with evidence that another had been present and involved in murder of victim, either as principal or joint venturer, proper to instruct on joint venture).
3. Evidence of home invasion. To obtain a conviction of home
The defendant maintains that “no direct testimony or circumstantial evidence [permitted the jury to infer] entry of any body part.” Our reading of the transcript finds otherwise. Rego testified that when she opened her apartment door, the assailants’ feet were “[a]t the threshold of the door” and they were “waving guns . . . [b]ack and forth really fast” and pointing them at her. Without objection, the judge described Rego’s demonstration of this arm-waving as “clearly indicating] extended arms, moving left to right.” From Rego’s testimony and demonstration, a rational jury could infer that one with feet at the threshold of the apartment would cross that threshold with at least some part of his arm in order to wave the gun back and forth and point it at Rego. There was sufficient evidence for the jury to conclude that at least one, if not both, assailants had broken the plane of the door with his arm and thus that the
4. Supplemental instruction on felony-murder. The judge instructed that the Commonwealth was proceeding against the defendant on the murder indictment on theories of deliberate premeditation
We judge the adequacy of a particular instruction not in isolation but in the context of the entire charge, as the adequacy of instructions is determined by their over-all impact on the jury. Commonwealth v. Carrion, 407 Mass. 263, 270 (1990), and cases cited. The scope of supplemental instructions is within the judge’s discretion, Commonwealth v. Johnson, 429 Mass. 745, 753 (1999), and cases cited, and the judge need not repeat all or any part of the original instructions, Commonwealth v. King, 366 Mass. 6, 11 (1974), cert, denied sub nom. McAllister v. Massachusetts, 419 U.S. 1115 (1975). Issues not explicitly raised by the question may be omitted. Commonwealth v. Sellon, 380 Mass. 220, 233-234 & n.20 (1980). Here, the jury sought clarification only of the difference between murder in the first degree and murder in the second degree. Accordingly, the judge needed only to reinstruct on that which differentiated the two degrees of murder. He did so. Further, he informed the jury that he was only summarizing the elements of murder in the first degree and in the second degree and that all his instructions were to be taken as a whole. He had previously instructed that attempted armed robbery was the predicate felony for a conviction of murder in the first degree; repetition was unnecessary. See Commonwealth v. Amazeen, 375 Mass. 73, 82 (1978) (unnecessary to repeat manslaughter instruction when jury inquired what constituted murder in first and second degrees). Finally, the fact that neither defense counsel objected to the supplemental instruction supports the conclusion that the instruction was not deficient.
5. Evidence probative of consciousness of guilt. The Commonwealth elicited evidence that the first time State Trooper Ronald Blais (who was involved in the investigation in this case) had ever seen the defendant was in Georgia two and one-half weeks after the murder. The defendant objected to the admission of this evidence. Later, in his final charge, the judge instructed the jurors to disregard it. The defendant argues that the judge abused his discretion by admitting this evidence as
6. Dismissal of juror. The defendant posits that the judge abused his discretion by dismissing a juror who appeared to be falling asleep during various parts of the trial without conducting a voir dire to determine whether the juror in fact had been “dozing off.” General Laws c. 234A, § 39, provides: “The Court shall have the discretionary authority to dismiss a juror at any time in the best interests of justice.” The judge observed the juror “dozing off” on three of the five trial days and brought this to the attention of counsel. Counsel for the codefendant Holloway also mentioned that the juror had “appeared [to her] to be sleeping at some point.” After the judge noticed the same juror “dozing off at least three times timing the charge as well,” and that her body movements indicated she was falling asleep, he informed counsel that he would excuse her in the “interest of justice.” Stokes objected (although counsel for Holloway and the prosecutor did not) but did not provide any reason for his objection and did not request a voir dire. There was no error. It is obviously not in the interest of justice to have a juror deliberate who has not heard the evidence or parts of the judge’s charge.
7. Relief pursuant to G. L. c. 278, § 33E. Having reviewed the whole record, we conclude that there is no reason to exercise our power under G. L. c. 278, § 33E, to order a new trial or to direct entry of a lesser degree of guilt.
Judgments affirmed.
He was also convicted of conspiracy to commit armed robbery. This conviction was placed on file and is not before us on appeal.
The codefendant, Michael Holloway, tried at the same time, was acquitted of all charges.
As to this part of the conversation, Mazyck said that he “[couldn’t] say who was doing the talking, or . . . the most talking.”
However, Rego agreed that she knew little about guns; that the incident only took “a matter of seconds”; and that she was terrified and got only “a very brief look” at the weapons.
The fact that Holloway was acquitted does not affect our decision. The jury’s determination that Holloway was not the second assailant does not lessen the evidence against the defendant but simply reflects that the Commonwealth had not proved beyond a reasonable doubt that the second person involved was Holloway. There was still sufficient evidence that a second person fired the fatal shot and that that second person was someone other than the defendant. Contrast Commonwealth v. Berry, 431 Mass. 326, 332 (2000).
Commonwealth v. Green, 420 Mass. 771, 779 (1995), cited by the defendant, does not support his argument. In that case, there was no evidence
There is no disagreement that the “dwelling place of another” is Rego’s apartment and not the common hallway outside her apartment door. Although a secured common area of a multi-family residential structure may constitute a resident’s “dwelling place” for purposes of G.L. c. 265, § 18C, see Commonwealth v. Doucette, 430 Mass. 461, 467 (1999), here the only evidence was that the outer entry door of Rego’s apartment building was not locked and was open at the relevant time.
Although we have commented that “we do not consider the term ‘enters’ as used in the burglary statutes entirely the same as the term ‘enters’ for purposes of the crime of armed home invasion,” Commonwealth v. Mahar, 430 Mass. 643, 652 n.5 (2000), that comment was made in connection with the issue of permission to “enter” or a reasonable belief that one had a right to “enter.” For our present purposes, concerning the physical nature of the entry, there is no distinction.
For purposes of this case, it is not necessary to decide whether an entry occurs when only an instrument used to commit the intended felony crosses the threshold. See Commonwealth v. Cotto, 52 Mass. App. Ct. 225, 229 (2001), for a helpful discussion of the issue.
The jury did not find deliberate premeditation.