The defendant, John Tague, was convicted of murder in the first degree of Jason Linsky on theories of deliberate premeditation and extreme atrocity or cruelty, armed assault of Brian McLaughlin with intent to murder, six indictments charging assault and battery (of three others) by means of a dangerous weapon, and two indictments charging assault and battery (of six people, including the five described in the other indiсtments).
1. We summarize the facts the jury could have found, reserving other details for discussion of the issues. During the evening of October 26, 1996, while the defendant and several friends were at the apartment of Larry Sullivan in Franklin, seven more friends arrived. They explained that they had just been thrown out of a Halloween party
The group went out seeking reinforcements, finding one. Eventually numbering thirteen, they drove to the party in two cars. They formed a semicircle around the guests sitting outdoors by the fire. A melee broke out. Four guests were stabbed and others were kicked, punched, and beaten. Linsky, the guest who was dressed as a red devil, died. He suffered nine stab wounds, five to the front of his chest, one to the right side of his chest, one to his lower back, one to his left thigh, and one to his right thigh. Two of the chest wounds were potentially fatal: one penetrated six inches, severing the right internal mammary artery and puncturing the right lung; the other, four and one-half inches deep, punctured the right lung, diaphragm, and liver. While Linsky was lying on the ground, a white male with a shaved head, about six feet tall, wearing stonewashed blue jeans and a green flight jacket, crouched over him and delivered several violent downward blows for approximately twenty seconds. It was the Commonwealth’s theory that this was the defendant. At the same time another white male weаring a cranberry-colored flight jacket kicked Linsky twice, and a third person stood close by.
The attack ended abruptly when thé defendant yelled, “Rally.” As the group fled, some were pursued by Brian McLaughlin. The defendant jumped McLaughlin from behind and stabbed him several times, puncturing both lungs and nicking a kidney.
The defendant left in Tougas’s car with one-half of the original group. The other half never left, as the poliсe arrived and stopped them. Back at Sullivan’s apartment, the defendant washed his hands and said he had stabbed someone. As the group was discussing alibis, the defendant said, “Well, nobody saw me there the first time, nobody would recognize me.” He boasted that he could “get away with it.” At one point he went to a convenience store across from Sullivan’s apartment and
The defendant gave several statements to the police. He denied stabbing anyone, but he admitted striking three people with a baseball bat. He admitted that three or four kitchen knives were passed around in the car in which he rode. He said he did not take any, but he touched at least one. Police recovered three knives at the scene, but could not identify any fingerprints on them.
2. Motion to dismiss. The defendant argues that it was error to deny his motion to dismiss the murder indictment because the Commonwealth was proceeding exclusively on a theory of joint venturе, and where none of the other coventurers had been charged with murder there was no principal actor with whom he could have shared the requisite mental state. The defendant is mistaken in his assertion that the Commonwealth did not proceed against him as a principal. The prosecutor announced in his opening that the Commonwealth was proceeding against the defendant bоth as a joint venturer and as a principal, and the judge instructed the jury under both theories. Even if the defendant had been prosecuted solely on a theory of joint venture, it was not error to permit the Commonwealth to proceed under that theory.
The validity of a conviction under a theory of joint venture does not depend on all coventurers being charged with the same offense. A conviction under a theory of joint venture may be obtained where the identity of the principal is unknown, and therefore no principal has been charged. See Commonwealth v. Drumgold,
The relevant inquiry here is whether the evidence presented to the grand jury was sufficient to support the indictment for murder under the theory that the defendant was involved in a joint venture, that is, that he (1) was present at the scene of the crime; (2) with knowledge that another intended to commit the crime (of murder); (3) that by agreement he was willing and availаble to help the principal, if necessary; and (4) that he shared with the principal the mental state required for the crime. See Commonwealth v. Silanskas,
A prosecutor’s decision to treat coventurers differently in the charging process does not affect the evidentiary basis for proceeding against a defendant under a theory of joint venture.
3. Third-party culprit evidence. Before calling Marlene Eich to testify, the prosecutor filed a motion in limine to prevent defense counsel from asking her about her conversation with Sullivan at the scene. Sullivan had been isolated and handcuffed for safety considerations because he was being particularly aggressivе toward a female officer as members of the opposing groups were yelling at one another after the first two of many police officers arrived. Eich, who had worked with Sullivan at a local restaurant for four months, approached him and said, “Larry . . . you stabbed my boyfriend” (Linsky). The judge permitted defense counsel to impeach Eich with her statement that Sullivan stabbed Linsky because it was аnticipated that she would testify that she never witnessed the stabbing. The judge refused to admit evidence of Sullivan’s response because it was anticipated that there would be no evidence that Sullivan knew that Linsky was Eich’s boy friend. Defense counsel made an offer of proof that, if permitted to testify as to Sullivan’s response, Eich would say that he “turned around and smiled at her and nodded.” The defendаnt argues that it was error to refuse to admit evidence of Sullivan’s response because he “is entitled to present evidence tending to show that someone else committed the crime for which he stands accused.” Commonwealth v. Galloway,
Before a stаtement may be admitted as a declaration against penal interest, “[1] the declarant’s testimony must be unavailable; [2] the statement must so far tend to subject the declarant to criminal liability ‘that a reasonable man in his position would not have made the statement unless he believed it to be true’; and [3] the statement, if offered to exculpate the accused, must be corroborated by circumstances clearly indicating its trustworthiness.” Commonwealth v. Drew,
Sullivan’s statement met the foundational requirements of an adoptive admission. According to the defendant’s offer of proof, Sullivan must have heard and understood Eich’s accusation because he turned to her and responded. The accusation was one which, if untrue, he would be expected to deny. Any ambiguity in the response goes to its weight, not its admissibility. See Brown v. Commonwealth,
The statement was admissible as a declaration against penal interest. The Commonwealth conceded at trial that Sullivan was unavailable. Sullivan’s response subjected him to criminal liability and any reasonable person in his position would have known as much, and for that reason would not have made the statement without believing it to be true. The statement must be corroborated by evidence of its trustworthiness. This elemеnt of the test requires the judge “to assess the credibility of the declarant [here, Sullivan] and to admit a statement if ‘there is some reasonable likelihood that the statement could be true.’ ” Commonwealth v. Galloway, supra at 208, quoting Commonwealth v. Drew, supra at 76. We have urged judges to be
However, we are persuaded that the error was harmless beyond a reasonable doubt. Had Sullivan’s adoptive admission been admitted, the Commonwealth’s case against the defendant as joint venturer would have remained overwhelming. The Commonwealth’s pathologist testified that Linsky’s wounds were consistent with being inflicted by one or more of the knives recovered by police at the scene. Sullivan’s admission, if believed,
4. Involuntary manslaughter. The defendant claims that the judge erred by denying his request for an instruction on involuntary manslaughter. He bases this on the evidence that he and the other members of his group went to the party only intending to fight, and that no one else was indicted for murder.
“An instruction on involuntary manslaughter is required where any view of the evidence will permit a finding of manslaughter and not murder.” Commonwealth v. Pierce, 419
The most favorable evidence has the defendant in the company of a dozen people armed with pipes, sticks, wrenches, belts, and three or four knives, driving through two towns to fight a group of unsuspecting partygoers, whom they then ambushed. The defendant admitted hitting three people with a baseball bat. He knew several of his associates were armed with deadly weapons. Linsky was kicked and he was stabbed nine times while he lay on the ground. Two of his wounds were caused when onе or more knives were thrust deep into his chest, killing him. The ferocity of the attack on Linsky is inconsistent with unintentional, reckless behavior. See Commonwealth v. Snow,
The defendant’s own testimony about his use of the baseball bat on four people and the part others played during the raid, including their use of dangerous weapons and their possession of knives, suggests that he did not believe “that only a simple assault and battery was to be committed by the participants and [that] he had no knowledge that it would esсalate into the use of a dangerous weapon on the victim,” as might warrant an
5. Postconviction discovery. The defendant filed motions for postconviction discovery of the clothing worn by Sullivan for the presence of blood matching that of Linsky. The motions were denied.
Before postconviction discovery may be ordered, a defendant must establish “a prima facie case for relief.” Mass. R. Crim. P. 30 (c) (4),
6. Motion for a new trial. The defendant filed a motion for a nеw trial on the basis of newly discovered evidence. See Mass. R. Crim. P. 30 (b),
The newly discovered evidence must be admissible. Id. at 306. Commonwealth v. Stewart,
The motion for a new trial did not present any newly discovered evidence, as such, and was properly denied. Because the motion did not raise a substantial issue supported by a substantial evidentiary showing, the judge was not required to hold a hearing. See Commonwealth v. Lopez,
7. General Laws c. 278, § 33E. We have reviewed the entire record, the transcripts, the briefs, and the arguments and discern no reason to reduce the verdict or order a new trial.
Judgments affirmed.
Order denying motion for a new trial affirmed.
Notes
At sentencing, the judge dismissed two assault and battery convictions as duplicative, and a third was nol pressed by the Commonwealth. The defendant also had been found not guilty on an indictment charging intimidation of a witness.
None of the seven had been invited to the party. When they arrived and were told that costumes were needed, the group drew swastikas and X’s on their foreheads, and thereby impersonated the Charles Manson “family.” It was this choice of fashion that caused them to fall out of favor quickly with the invited guests. As the seven left, one of them yelled at the person in the red devil costume, “I’m coming back for you!”
Tougas testified under a grant of immunity.
The attack on McLaughlin resulted in the defendant’s conviction of armed assault with intent to murder MсLaughlin. The defendant has not asserted any error with respect to that conviction.
The defendant also points to an incorrect statement by the prosecutor before trial to the effect that, even though the defendant went beyond the scope of the joint venture, he remained a joint venturer essentially for all purposes. The judge was not bound by the prosecutor’s statements, and incorrect legal assertions by the prosecutor have no bearing on our assessment of whether the judge committed error. The judge’s decision must be, and was, guided by the sufficiency of evidence of joint venture, not the prosecutor’s theories. See Commonwealth v. Silanskas,
The prosecutor represented at sidebar that, shortly after the exchange with Eich, Sullivan denied stabbing anyone. Sullivan’s denial would be аdmissible as a prior inconsistent statement to impeach Sullivan’s credibility, as if he had testified. See Proposed Mass. R. Evid. 806; Commonwealth v. Pina,
Sullivan submitted an affidavit, dated eight months after the Globe article, stating nothing more than that he had possession of information that would exonerate the defendant. He furnished no details, and expressed concern that, if he did furnish details in an affidavit, he might be charged with another crime.