56 Mass. App. Ct. 60 | Mass. App. Ct. | 2002
In 1991, the defendant, Frank C. Young, Jr. (defendant or Frank), and his brother, Dion Young (Dion), were convicted by a jury of unlawful possession of a firearm and of second degree murder arising out of a confrontation with, and the shooting of, an antagonist. The convictions were affirmed,
1. The new trial motion and the issue of waiver. The three issues advanced by the defendant in the new trial motion were not raised in the direct appeal in Young I. “[T]he long-standing rule that issues not raised at trial or pursued in available appellate proceedings are treated as waived [is subject to the] trial judge’s discretionary power to give relief from such a waiver ... in those extraordinary cases where, upon sober reflection,
2. The third prong malice error. In the aftermath of the 1998 decision in Vizcarrondo, which held erroneous a third prong malice instruction that included reference to inflicting grievous bodily harm, there have been a series of appellate challenges by collateral review in new trial motions, as in this case, involving the same flaw in the third prong malice instruction. These underlying trials all occurred in the twilight period before Viz-carrondo during which there was conflicting precedent suggesting that inclusion of the grievous bodily injury language in a third prong malice charge was acceptable — a construction later soundly rejected in Vizcarrondo. Appellate review has focused on whether the erroneous third prong malice instruction “created a risk that the jury would find the presence of malice, and therefore a risk that they would find murder, on mere proof of a plain and strong likelihood of grievous bodily harm.” Commonwealth v. Azar, 435 Mass. 675, 687 (2002).
“The same error [in the inclusion of grievous bodily harm in the third prong malice instruction] has required reversals and new trials in some cases. See Commonwealth v. Williams, 428 Mass. 383 (1998); Commonwealth v. Vizcarrondo, supra; Commonwealth v. Pichardo, 45 Mass. App. Ct. 296 (1998); Commonwealth v. DiRenzo, 44 Mass. App. Ct. 95 (1997). [This is in contrast to] other cases [where] it has not been necessary to order new trials because the evidence in the cases did not warrant a finding of a risk of harm less than a plain and strong likelihood of death.”
Ibid. The common characteristics of the latter class of cases deemed not to warrant reversal have
“involved the use of an inherently dangerous weapon, such as a gun, knife, or explosive device, or clear evidence of a prolonged and calculated assault. See, e.g., Commonwealth v. Freeman, 430 Mass. 111. 123 (1999); Commonwealth v. Murphy, 426 Mass. 395, 401 (1998); Commonwealth v. Fryar, 425 Mass. 237, 248, cert. denied, 522 U.S. 1033 (1997); Commonwealth v. Mello, 420 Mass. 375, 390 (1995); Commonwealth v. Niland, 45 Mass. App. Ct. 526, 532 (1998); Commonwealth v. Caines, 41 Mass. App. Ct. 812, 816-817 (1996).”4
Id. at 688.
In our view, the instant case falls within that class of cases where reversal is not warranted because from the evidence, the
In the first appeal, this court concluded that “[tjhese events amply supported the jury’s finding of malice.” Young I, 35 Mass. App. Ct. at 434. In reviewing the evidence as a whole against the background of the erroneous third prong malice instruction, that determination remains accurate. “A new trial will be ordered only in the extraordinary situation where, after such a review, we are left with uncertainty that the defendant’s guilt has been fairly adjudicated.” Commonwealth v. Chase, 433 Mass. 293, 299 (2001) (omitting citation). This is not such a case.
3. The self-defense instruction. The defendant claims that the self-defense instruction incorrectly omitted reference to the potential use of nondeadly force in self-defense. In the first place, the defendant’s proposed self-defense instruction did not
4. The joint venture issue. The defendant contends that he was not engaged in a joint venture and argues that the supplemental joint venture instruction compelled his conviction for the same offense as Dion, depriving him of the prospect of a lesser conviction. The first issue of the defendant participating in a joint venture was decided adversely to him in his direct appeal. See Young I, supra at 435-437. “The defendant now attempts to use the same factual circumstances which gave rise to his unsuccessful argument in the Appeals Court [in Young 7] in fashioning a new argument which he previously could have
In a newly advanced attack relating to the joint venture, the defendant contends that the judge’s supplemental instruction given in response to a jury question on joint venture
In response to the jury inquiry, the judge in the supplemental instruction provided a lengthy and comprehensive restatement of the law of joint venture, which, in the main, tracked the original charge. The judge repeated the elements of a joint venture and emphasized that the jury must find that the defendant shared the intent required to commit the crime, that there must be proof that the defendant intentionally participated
The defendant claims that the judge erred because the instruction stated that, if the jury found the defendants engaged in a joint venture, both of the joint venturers would be guilty of the same crime.
Order denying motion for new trial affirmed.
The direct appeal involved consolidated review of the appellate claims of Frank and Dion.
A detailed statement of the facts is set forth in Commonwealth v. Young, 35 Mass. App. Ct. 427, 429-433 (1993) (Young I). As background to the issues raised in this second appeal from the denial of a motion for a new trial, the following brief summary provides the relevant information. Frank and Dion planned to attend a party. The victim, Anthony Edwards, was also going to the party. Two weeks before the party, there had been an altercation, assault, and threats of violence between the two brothers and Edwards. Shortly thereafter, the defendant and his brother obtained handguns to bring to the party. Each brother knew the other was in possession of a weapon. At the party, Edwards taunted the defendant and approached him with a mop handle. Edwards swung the stick, but missed the defendant. At that point, Dion stepped in front of the defendant and shot Edwards. Both brothers then ran from the scene, and the defendant hid the two guns in a nearby vacant truck. When arrested, both brothers gave incriminating statements. In his statement, the defendant acknowledged that, after Edwards tried to hit him with the stick, the defendant reached into his back pocket and drew his weapon. He later stated that he fired the gun, but missed Edwards.
The record contains an affidavit from appellate counsel stating that had he realized the errors asserted in the new trial motion, he would have advanced them in the direct appeal and that the omission of the issues was not a strategic decision.
These cases with an erroneous third prong malice instruction held not to require reversal and a new trial all involved extreme acts of violence and
This addresses the subjective component of third prong malice. See Commonwealth v. Grey, 399 Mass. 469, 472 n.4 (1987); Commonwealth v. Mello, 420 Mass. at 389-390. That subjective component is not at issue here.
As was noted in Young I, the judge’s charge included “a thorough and detailed discussion of self-defense and defense of another, pointing out the distinction between justification and mitigation (but without resorting excessively to that terminology), as well as the Commonwealth’s burden to prove beyond a reasonable doubt that Dion did not act in self-defense or in defense of his brother, or, alternatively, that Dion used excessive force in response to the provocation which, if proven by the Commonwealth, would constitute manslaughter.” Id. at 439.
The Federal court also denied the defendant’s habeas corpus petition based, inter alla, on challenges to the evidentiary basis of the joint venture and whether the defendant manifested the requisite state of mind to have been found a participant in the joint venture with Dion. See Young vs. Duval, U.S. Dist. Ct., Civ. A. No. 95-10549 (D. Mass. 1996).
The jury’s question was: “Joint venture ... If individual No. 1 is determined guilty of the charge, then does individual No. 2 if determined guilty have to be found guilty of exactly the same charge?”
Joint venture may be found where the defendant (i) was present at the scene of the crime, (ii) with knowledge that another intended to commit the crime, or with intent to commit the crime, and (iii) acted in aid and assistance to the crime or by agreement was willing and available to render such assistance to the other if necessary. See generally Commonwealth v. Longo, 402 Mass. 482, 486 (1988). The prosecution must show that the defendant shared the mental state required for the crime charged. Id. at 486-487. On indictments charging murder, as in this case, “[a] joint venturer need only intend that the victim be killed or know that there is a substantial likelihood of the victim’s being killed.” Commonwealth v. Podlaski, 377 Mass. 339, 347 (1979).
The defendant cites Commonwealth v. Cote, 5 Mass. App. Ct. 365 (1977), as the principal support for the novel proposition that, under the law of joint venture, it is error to instruct that joint venturers are guilty of the same crime. Cote does not stand for that proposition. The error in Cote was that the judge usurped the jury’s factfinding function by stating his personal opinion that, “[i]t is inconceivable that you could find one of the defendants guilty and one not guilty. They are either not guilty or guilty on the evidence that came in in this case.” Id. at 369. We also note it is not clear that Cote even involved a joint venture.