460 Mass. 311 | Mass. | 2011
The defendant, Code Stokes, was convicted of felony-murder in the first degree based on the predicate felony of attempted armed robbery, and related crimes. The charges concerned the 1999 shooting death of Cecil Smith inside the home of Smith’s girl friend, Crystal Rego. This court affirmed his convictions. Commonwealth v. Stokes, 440 Mass. 741 (2004) (Stokes). Before us is the defendant’s appeal from the denial of
1. Background. As recited in more detail in Stokes, on the evening of August 9, 1999, Rego opened the door of her apartment in Fall River in response to a knock; the defendant and another man stood at the threshold, “waving guns” and pointing them at Rego.
Following these events, the defendant and his codefendant, Michael Holloway, were charged with murder in the first degree, armed home invasion committed with a firearm (armed home invasion) against Smith,
In 2008, the defendant filed a motion for a new trial.
2. Instruction on felony-murder in the second degree. In this appeal, the defendant first argues that the charged offense of armed home invasion, as set out in the indictment naming Smith as the victim, could have served as a predicate felony for felony-murder in the second degree, despite potential conflicts with the merger doctrine.
Felony-murder in the second degree consists of a homicide
We accept the defendant’s point that the trial evidence was sufficient for the jury to consider whether Smith was killed during the commission of an armed home invasion against Rego.
A contrary rule has an obvious potential to undermine the policy of finality of criminal convictions. It is likely that in almost every case where a defendant has been convicted of felony-murder in the first degree predicated on a felony punishable by life imprisonment, an argument can later be made that the trial evidence also supported the existence of one or more uncharged felonies not punishable by fife imprisonment, and that therefore the jury should have been instructed on felony-murder in the second degree. Limiting the availability of such a claim to cases where the felony later advanced as presenting a basis for a charge of felony-murder in the second degree was the subject of a separate indictment may strike an appropriate balance. The existence of the indictment puts the Commonwealth (as well as the trial judge) on notice that at least there is a theoretical possibility of conviction of felony-murder in the second degree.
3. Armed assault. The defendant argues that his separate conviction of armed home invasion merges with his felony-murder conviction and must be vacated. The claim, not part of the motion for a new trial, is not properly before the court and we need not consider it.
Order denying motion for a new trial affirmed.
Evidence was sufficient to conclude that the arm of at least one assailant crossed the threshold of the apartment, thus satisfying the entry element of armed home invasion. Commonwealth v. Stokes, 440 Mass. 741, 748-749 (2004) (Stokes).
The defendant claims that the evidence at trial of attempted armed robbery was “extremely slim,” and the evidence overall more plausibly may have suggested that the purpose of the attack was not robbery but rather to get rid of a rival drug dealer. In particular, he argues that Dana Mazyck was not a reliable witness because, by Mazyck’s own admission, he was intoxicated by marijuana at the time he overheard the statements, he withheld information from the police, and his memory of the evening was spotty. See Stokes, 440 Mass. at 743 & n.3.
The indictment charging armed home invasion alleged that the defendant entered the dwelling of Crystal Rego, but identified Cecil Smith, Jr., as the victim of the crime — that is, the victim of the use of force, threatened use of force, or intentional injury that is an element of the crime. See G. L. c. 265, § 18C, as amended by St. 1998, c. 180, § 57 (§ 18C).
The motion included as well requests for reduction of the verdict to murder in the second degree and resentencing.
At the time of the murder at issue in this case, § 18C provided that a person committing the crime of home invasion while armed with a firearm, shotgun, rifle, machine gun, or assault weapon was subject to a maximum sentence of twenty years’ imprisonment, whereas one who committed the crime while armed with any other dangerous weapon could receive a life sentence. See G. L. c. 265, § 18C, as amended by St. 1998, c. 180, § 57; Commonwealth v. Burton, 450 Mass. 55,58-59 (2007) (Burton); Commonwealth v. Brown, 431 Mass. 772, 775, 779-781 (2000). Because armed home invasion committed with a firearm (armed home invasion) is an inherently dangerous felony, see Commonwealth v. Doucette, 430 Mass. 461, 468 n.6 (1999), but was not punishable by life imprisonment, it could have served as the predicate felony for felony-murder in the second degree. Burton, supra at 57-60. We note that § 18C was amended again in 2004, and currently provides that one who commits the crime while armed with a firearm may receive a maximum sentence of life imprisonment. G. L. c. 265, § 18C, as amended through St. 2004, c. 150, § 17.
The judge allowed the defendant’s request for resentencing on the conviction of armed home invasion against Smith (see note 4, supra) and otherwise denied the motion. There is no question that the original sentence the defendant received on the armed home invasion charge was legally impermissible. It was a sentence of from twenty to twenty-five years, whereas under the applicable version of § 18C, the maximum sentence that could be imposed was twenty years. See note 5, supra. The sentence was not a matter that was raised or addressed in the defendant’s direct appeal. See Stokes, 440 Mass. at 742, 751.
The Commonwealth asserts that because he did not request an instruction on felony-murder in the second degree at trial and did not raise the issue on direct appeal, the defendant has waived the claim he now argues. The defendant responds that no waiver occurred, reasoning that until this court decided Burton, 450 Mass. at 57-60, in 2007 — well after both his trial and his direct appeal •— he could not have been expected to argue that armed home invasion as defined in § 18C, as amended by St. 1998, c. 180, § 57, the version of the statute that applied to the defendant, carried a maximum twenty-year sentence and therefore could be the predicate for felony-murder in the second degree only, and not for felony-murder in the first degree. See id. We acknowledge that significant confusion has surrounded the meaning of this version of § 18C — confusion shared by attorneys, trial judges, and this court. The single justice, as gatekeeper, has allowed the defendant to raise his claim, and therefore we will consider whether the error asserted by the defendant created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 293 n.7, 294-295 (2002).
The defendant contends that the pointing of guns at Smith constituted an “imminent use of force” within the meaning of the armed home invasion statute, § 18C, that was separate from and did not merge with the use of force that killed Smith. We disagree. Where Rego testified the entire incident occupied “a matter of seconds,” Stokes, 440 Mass, at 746 n.4, any threatened use of force against Smith himself was part of the shooting that killed him. Therefore, under the merger doctrine, the armed home invasion with respect to Smith could not form a predicate felony for a felony-murder conviction. See Commonwealth v. Gunter, 427 Mass. 259, 270-274 (1998). Contrast Commonwealth v. Kilbum, 438 Mass. 356, 358-359 (2003) (defendant’s brandishing of gun and pushing victim immediately on entering apartment completed crime of armed assault in dwelling, G. L. c. 265, § 18A, and did not merge with fatal shooting of same victim that followed “[a]fier a short interlude . . .”).
A person commits armed home invasion if he “knowingly enters the dwelling place of another knowing or having reason to know that one or more persons are present within . . . while armed with a dangerous weapon, [and] uses force or threatens the imminent use of force upon any person within such dwelling place whether or not injury occurs, or intentionally causes any injury to any person within such dwelling place.” § 18C. To find that the assailants “threaten[ed] the imminent use of force” on Rego, the jury would have needed to conclude that she was a target of a threat and not just a bystander during an attack on Smith. Given the short duration of the entire incident, we have some doubt on this point. However, because the assailants pointed guns at her, see Stokes, 440 Mass. at 748, and because the Commonwealth’s theory of the case was that Rego was the intended victim of the attempted armed robbery, we accept that the evidence was sufficient for the jury to find that the assailants threatened Rego with the imminent use of force.
There are cases where a defendant has been convicted of felony-murder in the first degree and where this court has ordered a new trial or reduction in the degree of murder due to the absence of an instruction on felony-murder in the second degree, even though there had been no request for the instruction at trial. In each of these cases, however, the predicate felony for the charge of felony-murder in the second degree was itself the subject of a separate indictment. See Commonwealth v. Bell, ante 294, 295 (2011); Commonwealth v. Rego, 360 Mass. 385, 393-394 (1971).
In addition to being improperly raised, the defendant’s argument is without