463 Mass. 857 | Mass. | 2012
A Superior Court jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation, in violation of G. L. c. 265, § 1, for the killing of David Fleet.
Background. The defendant does not challenge the sufficiency of the evidence at trial. We summarize the key evidence supporting the jury’s guilty verdicts.
The victim, who was twenty-three years of age when he died, lived with two friends in a house in Natick. On the evening of May 7, 2004, a number of their friends who worked in local restaurants came to the house for an informal party. Two of the guests, Patrick Nadeau and Jeffrey Kline, unsuccessfully tried
None of the invited guests at the party knew the defendant, who was the only African-American at the party. The defendant wore distinctive garb: a dark T-shirt, dark green camouflage pants, and a camouflage hat. At approximately 1 a.m., after the victim had been told that one of the uninvited guests was trying to steal some items, the victim told the defendant that the defendant’s friends were trying to steal from the victim and that the defendant could stay but they had to leave. A scuffle broke out between the defendant and the victim, and Nadeau intervened and pulled them apart. The uninvited guests were about to leave when the defendant said that he wanted his hat, which had fallen off in the scuffle. When Nadeau retrieved the defendant’s hat for him, the defendant punched Nadeau in the forehead, and a fist fight followed. The victim and his friends forced the defendant to the ground and told him he had to go. They then allowed him to stand up, and the uninvited guests left.
Home, driving a blue Geo Tracker vehicle, dropped the To-lands off at their home; the defendant remained in the vehicle. After they left, Chad Rudolph, one of the victim’s roommates, discovered that fifty dollars in cash was missing from his desk drawer.
At approximately 1:30 a.m., Home returned to the party and said that he was angry because he had been punched by someone during the fight.
Seventeen year old Stephen Kelly, who had arrived at the party after the fight, went outside to the porch to speak with the defendant. He knew the defendant, whom he called Sosa, because he had “business dealings” with him during the summer and fall of 2003, and saw him every day during that period. The defendant told Kelly about the fight and how he had been kicked out of the house. Kelly urged him to leave and not retaliate. The defendant replied that he was there to get what “he had to do done,” and that he was going to shoot the victim.
At approximately 2:50 a.m. that morning, Framingham police Officer Brian Langelier spotted a blue Geo Tracker vehicle, which he soon learned was registered to Home. He stopped the vehicle and ordered the driver, who was Home, and the front seat passenger, who was the defendant, to leave the vehicle, which they did, leaving the front doors to the vehicle open.
The defendant was arrested, booked, and given the Miranda warnings. He agreed to speak with Natick police Detective John W. Doherty, Jr., but declined to have his statement tape recorded. The defendant said that the firearm belonged to Home, not to him, and denied that he shot anyone. When asked about his whereabouts that evening, he said that he left his apartment in Marlborough at 8 p.m. and was driven by a friend to “Samantha’s” house on Irvington Street in Framingham.
Discussion. 1. Supplemental jury instruction on premeditation. After the judge provided the jury with his final instructions of law, he informed them that he would not be in court during their deliberations, that another Superior Court judge would
The substitute judge informed the jury that their question “require[d] the attention of [the trial judge],” and instructed them not to continue to deliberate that day. The next morning, the substitute judge conducted a telephone conference with the trial judge, attended by the prosecutor, the defendant, and defense counsel, where the prosecutor and defense counsel, through the telephone’s “speaker” option, directly addressed the trial judge.
“To prove premeditation the Commonwealth must prove beyond a reasonable doubt that the defendant planned and intended to kill someone. If the Commonwealth proves that the defendant did intend to kill someone with deliberate premeditation, the fact that he may have killed someone other than that person is immaterial. The Commonwealth does not have to prove the identity of the intended victim.”
The defendant objected to the trial judge’s ruling of law, but not
The defendant argues that the supplemental instruction constituted reversible error because it was premised on a theory of transferred intent where there was insufficient evidence of transferred intent to warrant such an instruction. The defendant also argues that the instruction was fatally flawed because it failed adequately to explain the law of transferred intent, and failed to correct the jury’s apparent misconception that an intent to shoot necessarily implied an intent to kill.
A transferred intent instruction provides that if a defendant intends to kill a person and in attempting to do so mistakenly kills another person, such as a bystander, the defendant is treated under the law as if he intended to kill the bystander. See, e.g., Commonwealth v. Shea, 460 Mass. 163, 172-174 & n.7 (2011); Commonwealth v. Pitts, 403 Mass. 665, 669 & n.6 (1989). The same principle of transferred intent applies to the element of premeditation: where a defendant decides after deliberation to kill one person and mistakenly kills another, the defendant’s premeditation is transferred to the actual, unintended victim. See Commonwealth v. Diaz, 431 Mass. 822, 831-832 (2000) (defendant guilty of premeditated murder under doctrine of transferred intent where he planned to kill former girl friend but mistakenly killed her sister); Commonwealth v. Santiago, 425 Mass. 491, 502 (1997), S.C., 427 Mass. 298, and 428 Mass. 39, cert. denied, 525 U.S. 1003 (1998) (premeditated intent to kill man on sidewalk may be transferred to actual victim).
A transferred intent instruction is appropriate regarding the element of deliberate premeditation where there is sufficient evidence for a jury to find beyond a reasonable doubt that the defendant decided after deliberation to kill one person but, in attempting to do so, killed another person that he may not have planned to kill. See Commonwealth v. Pitts, supra at 669. A comparable but slightly different instruction is appropriate regarding the element of deliberate premeditation where there is sufficient evidence that the defendant decided after deliberation to kill someone within a group and, in attempting to do so, killed a member of that group. Cf. Commonwealth v. Reaves, 434 Mass. 383, 390-391 (2001) (deliberate premeditation where
Here, a reasonable jury may have concluded from the evidence that, when the defendant returned to the house and stood on the porch, he decided to kill the victim, but they also reasonably may have concluded that he decided to kill anyone in the house who participated in the fight, and simply happened to shoot the victim because he was standing on the other side of the glass door trying to prevent the defendant from entering. When the judge initially instructed the jury as to the element of deliberate premeditation, he told them, “The Commonwealth must prove that the defendant actually intended to cause the death of David Fleet in order for the defendant to be found guilty of first degree murder by deliberate premeditation.” The jury’s question suggests that they sought guidance as to whether, in order to find deliberate premeditation, they needed to find that the defendant specifically planned to kill the actual victim or whether it was sufficient for them to find that he planned to kill someone inside the house.
We understand that there could be circumstances where such an instruction, unless more carefully delineated, may constitute reversible error. For instance, in State v. Batson, 339 Mo. 298, 300 (1936), the defendant accused a justice of the peace of having forged the defendant’s signature on a document and shot the justice at point-blank range. When a deputy constable charged toward the defendant, the defendant fired at him, but missed and struck a dentist who was standing beside the constable, killing the dentist. Id. The trial judge instructed the jury that, if they found that the defendant “willfully, deliberately, premeditat-edly, and with malice aforethought” attempted to shoot the justice and in the attempt shot and killed the dentist, then any such wilfulness, deliberation, premeditation, and malice must be attributed to the defendant in the killing of the dentist. Id. at 303. The Supreme Court of Missouri reversed the defendant’s conviction of murder for the killing of the dentist, concluding that the instruction was prejudicial where it told the jury that they could find the defendant guilty of murder in the first degree for the killing of the dentist if they found he was attempting to murder the justice, when all the evidence showed that he was shooting at the constable, not the justice, when he shot the dentist. Id. at 307.
Similarly, in State v. Hall, 722 N.W.2d 472, 475 (Minn. 2006), the defendant threatened a clerk at a gasoline station and then, after leaving the station, fought with unidentified men outside the station. He told his friends that he “got jumped” by three men, and said he was going to kill them. Id. He then left his apartment with a gun and shot the clerk (who was not involved in the earlier fight) at point-blank range. Id. The judge instructed the jury, “If the [defendant acted with premeditation and with the intent to cause the death of another, the element of premeditation and intent to kill is satisfied, even though the [djefendant did not intend to kill [the actual victim].” Id. at 476. The
The circumstances that caused reversal in those cases are not present in this case. Here, there was no evidence that the defendant premeditated the killing of anyone other than the actual victim or a group of persons that included the actual victim. If the jury found that the defendant deliberately premeditated someone’s murder before returning to the victim’s house or while standing on the porch outside the victim’s house, they reasonably could have found either that he decided to kill the actual victim, as suggested by Kelly’s testimony, or that he decided to kill someone inside the house who participated in the earlier fight (a group that included the actual victim). If they found that he did not decide to kill until he was barred from entering the house, then they reasonably could have found that he decided to kill the actual victim, because he would have been able to see the actual victim through the window of the porch door before he shot him at close range. In short, there was no risk here that the jury concluded that the defendant premeditated the killing of someone other than the actual victim or a member of a group of persons that did not include the actual victim, and transferred that premeditation to the killing of the actual victim.
Nor did the trial judge err in failing specifically to remind the jury that, despite the wording of their question, deliberate premeditation required a decision to kill, not merely to shoot. The supplemental instruction clearly informed the jury that “ [t] o prove premeditation, the Commonwealth must prove beyond a reasonable doubt that the defendant planned and intended to kill someone.” There is no significant risk that the jury understood from the judge’s earlier instructions and the
2. Alleged violation of Mass. R. Crim. P. 38 (a). The defendant claims that it was a violation of rule 38 (a) for a judge other than the trial judge to provide the jury with a supplemental instruction where the trial judge was neither sick nor disabled, and where the substitute judge did not certify in writing that he had familiarized himself with the record of the trial.
Rule 38 (a) provides:
“If by reason of death, sickness, or other disability the judge before whom a jury trial has commenced is unable to proceed with the trial, any other judge of that court or properly assigned to that court, upon certifying in writing that he has familiarized himself with the record of the trial, may proceed with and finish the trial.”
Here, there is no evidence in the record that the trial judge was sick or disabled, and the substitute judge did not certify in writing that he had familiarized himself with the record of the trial. However, the trial judge presided over the trial in person until the jury began their deliberations, and the only matter of substance addressed by the substitute judge was the question posed by the jury. The trial judge participated in a telephone conference attended by the substitute judge, counsel, and the defendant to frame an answer to the question, and the instruction provided in answer to the jury’s question was approved by the trial judge during that conference.
We need not reach the issue whether the substitute judge in these circumstances “proceed[ed] with and finish[ed] the trial” in violation of rule 38 (a) because the defendant did not object to the substitution, and we conclude that, even if there were a violation, no substantial likelihood of a miscarriage of justice arose from the violation. See Commonwealth v. Trapp, 396 Mass. 202, 213-214 (1985), S.C., 423 Mass. 356, cert. denied,
3. Ineffective assistance of counsel. The defendant claims that he was denied effective assistance of counsel because his attorney in opening statement promised the jury that he would “prove” that the defendant did not shoot the victim and that the camouflage clothing worn by the shooter was commonly worn by African-American males. The defendant argues that, by offering to “prove” these assertions, his attorney assumed the burden of proving the defendant innocent, which was irreconcilable with his constitutional right to the presumption of innocence. See People v. Dean, 50 A.D.3d 1052, 1053 (N.Y. 2008). He also argues that it was particularly egregious to promise to prove that the defendant was not the shooter where he was the only African-American at the party, he wore camouflage pants at the party and when he was arrested, and nine witnesses who were at the party identified him in a photographic array. Moreover, he notes that, despite his promise of proof, his attorney offered no evidence to show that camouflage clothing was commonly worn by African-American males.
We acknowledge that a defense attorney should be cautious in making promises to a jury in an opening statement that he may be unable to keep. We also recognize the danger that a defense counsel’s offer to “prove” facts may be misunderstood by a jury as accepting a burden of proof that both our Federal and State Constitutions impose on the Commonwealth. But even if defense counsel failed to exercise appropriate caution in his opening statement, we conclude from the entirety of the trial record that the defendant was not denied the effective assistance of counsel. Rather, even though faced with overwhelming evidence — nine eyewitness identifications, the discovery of the firearm used in the shooting below the seat the defendant had occupied in Home’s vehicle, the defendant’s statements to Kelly of his intention to retaliate, and his implausible alibi in his statement to police — defense counsel identified the flaws in the witness identifications, challenged the ballistics evidence, effectively cross-examined Kelly as to his credibility, and in closing argument marshaled the meager evidence suggesting that the defendant did not shoot the victim and that the killing was voluntary manslaughter, not murder. It is easy in hindsight for the defendant to question a defense strategy that attempted to challenge the identification evidence, but the record reflects that the defendant told the police after he was arrested that he did not commit the shooting, and there is nothing before us to suggest that the defendant was willing at trial to surrender any chance of a not guilty verdict and seek a verdict of voluntary manslaughter.
We also conclude that, even if counsel’s conduct fell measur
4. Review under G. L. c. 278, § 33E. The defendant claims under G. L. c. 278, § 33E, that, in light of the evidence, a conviction of voluntary manslaughter or murder in the second degree would be more consonant with justice. After careful review of the trial transcript, we disagree. The weight of the evidence does not support the defendant’s contention that the killing occurred in a heat of passion arising from reasonable provocation. The defendant had left the victim’s home in Home’s vehicle after the fight and chose to return to the victim’s house with a firearm after the Toland brothers were dropped off at their home. There was ample time for him to have cooled off after the fight. Nor is it credible that the killing was triggered by pain the defendant suffered when the porch door closed on his arm as he tried to force his way into the victim’s residence. Not only does the evidence strongly support the conclusion that the decision to kill was made before he “rush[ed] the door,” but there was no sign of any bruises or cuts on the defendant’s hands when he was booked following his arrest and little in the evidence to suggest that the defendant suffered greatly before he pulled his arm from the door. We conclude that the defendant received a fair trial, and that the interests of justice do not require the reduction of the murder conviction to a lesser degree of guilt or a new trial.
Judgments affirmed.
The defendant also was convicted of unlawful possession of a firearm, in violation of G. L. c. 269, § 10 (a). He was sentenced to life in prison without the possibility of parole on the murder conviction, and to from four to five years in State prison on the firearm conviction, to be served concurrently with his life sentence.
At approximately 1:24 a.m., a surveillance camera at the convenience store across the street from the victim’s house captured Kenneth Home making a purchase; the defendant was not seen on the videotape.
Stephen Kelly initially testified that the defendant said “[tjhat he was going to shoot Dave,” but when asked if the defendant used the victim’s name, he replied, “No, not that I recall.”
The defendant moved to suppress the firearm, claiming that it arose from an unlawful stop of the vehicle. The motion judge (who was not the trial judge) denied the motion, finding that the officer had probable cause to stop the vehicle. On appeal, the defendant does not challenge the denial of the motion to suppress. Nonetheless, as part of our plenary review under G. L. c. 278, § 33E, we have reviewed the transcript of the motion hearing and conclude that the motion was properly denied.
Later in the interview, the defendant said that he received a telephone call from Samantha at 10 p.m. and an hour later his friend, Marco, drove him to Samantha’s house. He was unable to provide Samantha’s last name or telephone number; nor could he provide a last name for Marco. There is no Irvington Street in Framingham, but there is an Irving Street in the town.
The record reflects that the judge said that he would be away for one week on a long-scheduled commitment. There is nothing in the record to suggest that his absence was due to sickness or disability.
The defendant agreed to this procedure. The substitute judge offered to telephone the trial judge from the court room, but noted that the court room telephone did not have an external speaker. The defendant asked that the conference call be conducted in the judge’s lobby.
The trial judge provided the jury with a tape recording of his instructions of law and gave each juror a written copy of the jury instructions.
We recognize that the substitute judge initially drafted the proposed instruction, but conclude that this is immaterial where, as here, the instruction was revised during a telephone conference with the trial judge, defendant, and counsel, and the final instruction was specifically approved by the trial judge.
In Commonwealth v. Trapp, 396 Mass. 202, 214 (1985), S.C., 423 Mass. 356, cert. denied, 519 U.S. 1045 (1996), we declared, “We need not decide whether such a substitution is reversible error because the defendant did not object to the substitution of judges at the time, nor did he claim dissatisfaction with the answers given to the jury by the first substitute judge.” Here, the defendant objected to the instruction provided by the substitute judge to the supplemental question, but unlike in the Trapp case, where the substitute judge alone answered the jury’s questions, the instruction was approved by the trial judge during a telephone conference attended by counsel and the defendant.
Under Mass. R. Crim. P. 38 (b), 378 Mass. 916 (1978), “Any judge of a court or any judge properly assigned to that court may receive a verdict of the jury.” We shall ask the standing advisory committee on the rules of criminal procedure to consider whether rule 38 (a) should be amended expressly to permit a judge to substitute for a trial judge who is unable to be physically present in court for reasons other than death, sickness, or other disability after a jury begin their deliberations, where the trial judge is available to confer with the substitute judge, counsel, and all defendants by telephone on the record and, as here, approves any instruction provided in answer to a jury question.