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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Netto, 438 Mass 686 (2003)
Present:
Steven J. Rappaport for Nancy J. Netto.
Charles W. Rankin for Joseph T. Netto.
Sharon L. Sullivan-Puccini, Assistant District Attorney, for the Commonwealth.
SOSMAN, J.
The defendants were convicted of armed robbery
and murder in the first degree in connection with the stabbing death of their
next door neighbor. The murder indictments were submitted to the jury on
theories of deliberate premeditation, extreme atrocity or cruelty, and
felony-murder (predicated on armed robbery). The jury found Joseph Netto guilty
on all three theories. Nancy Netto was convicted only on the theory of
felony-murder. Both defendants now appeal from their convictions, and ask that
we exercise our power under G. L. c. 278, § 33E, to reverse the
convictions or reduce the degree of guilt on the murder convictions. For the
following reasons, we affirm Joseph Netto's conviction of armed robbery, we
vacate as duplicative Nancy Netto's conviction of armed robbery,[2] we
affirm both murder convictions, and we decline to exercise our power under G.
L. c. 278, § 33E.
1. Facts. Viewed in the light most favorable to the Commonwealth, the facts are
as follows. The victim, Robert Levesque, lived alone in a second-floor
apartment at
The defendants, Joseph and Nancy Netto, husband and wife, lived in the apartment
next to Levesque, having moved in only a few weeks prior to Levesque's murder.
Another apartment on the second floor was occupied by Michelle Griffin and
Bennie White, who were friends of the Nettos. The Nettos were impoverished and
addicted to heroin. They had few possessions and, much of the time, no food.
They received a Social Security check at the beginning of each month, but spent
most of the little money they had on heroin.
Levesque had helped the Nettos acquire their apartment and, for some brief
period after they moved in, the Nettos had been on friendly terms with
Levesque. Nancy Netto would visit Levesque in his apartment on occasion.
However, approximately one week prior to his murder, there had been some
friction between Levesque and Nancy Netto; as a result, she was no longer
welcome in his apartment.[3] At some point prior to the murder, Joseph
Netto told Bennie White that he did not like Levesque, predicting that Levesque
would "end up with a knife in his back."
On
As of the next morning, Friday, November 19, the Nettos were in desperate need
of money for heroin. Nancy Netto was described as "very dope sick,"
suffering withdrawal to the point that she was drooling. She asked
In the late afternoon, Levesque had closed up his restaurant and stopped in at
a local club that he often patronized. At the club, he was seen with
significant cash, including many hundred dollar bills. He left the club at
approximately
At approximately
While they were out, Michelle Griffin stopped in briefly at the Nettos's
apartment. Joseph Netto was there, barefoot and wearing nothing but shorts.
Costanzo left, at which point Nancy Netto asked White to give her a ride to buy
groceries. As they were about to leave, Joseph Netto reminded White that he was
not to say anything to
White took Nancy Netto to two different stores, at which she spent
approximately one hundred dollars on groceries. While they were out,
Nancy and White did return shortly thereafter, loaded with grocery bags.
At approximately
When Levesque failed to show up at his restaurant at the usual time that
Saturday morning, one of the restaurant workers went to his home. Discovering
Levesque's vehicle in the lot, and getting no response from knocking on his
door, she telephoned the police. The police broke down the door to Levesque's
apartment and found his body lying ten feet inside the doorway with a knife
sticking out of his back. He had been stabbed nineteen times. He had also
suffered multiple cuts in the nature of defensive wounds, and a blow from a
blunt object to his forehead. The knife in his back matched those in a set
found in a drawer in the kitchen. The apartment was "a shambles,"
with items turned over, drawers opened, and contents strewn about.
Forensic examination of blood samples at the scene identified two samples where
the blood types and groupings were consistent with a combination of Levesque's
blood and Joseph Netto's blood.[5] A bloody footprint on a piece of
floor tile matched Joseph's right footprint. A fingerprint on the handle of the
bathroom door matched Nancy Netto's right thumb. That thumbprint was determined
to be "fairly fresh," based on the speed with which it reacted to the
application of chemicals and on the fact that the print had been left in a
location that would, in the ordinary course, be subjected to frequent handling.
The police obtained arrest warrants for the Nettos and a warrant to search
their apartment. That search uncovered eighteen dollars under a television set
in the bedroom and clothes soaking in the bathroom tub and sink. There was no
sign that the apartment had been or was in the process of being painted.
Later that night, police found and arrested the Nettos in their room at the
motel. Among the items in their possession at the time of their arrest were
jewelry, an ashtray, a toaster, and keys, which were later identified as
belonging to Levesque. They also had cash, including ten one hundred dollar
bills, three of which had spots of blood on them.[6] Examination of
Joseph Netto's hand revealed a fresh cut between his thumb and forefinger.[7]
Counsel for Joseph Netto presented evidence that Costanzo had spent
considerable amounts of money in the days immediately following the murder, and
that he had not obtained such a sum of money from work. Counsel also presented
evidence of a telephone call made to his office by Bennie White two months
prior to the trial, during which White suggested that he knew more about the
murder than he had told the police (or the jury). Counsel for both defendants
suggested in closing argument that the crime had been perpetrated by either
Costanzo or White.
2. Motion to suppress. Joseph Netto moved to suppress all evidence seized from
the motel room.[8] After an evidentiary hearing, the motion judge
allowed the motion to suppress. The Commonwealth's application for
interlocutory review was allowed, and the appeal was heard by the
The motion judge's findings, amplified by undisputed testimony at the
evidentiary hearing, are as follows. Pursuant to arrest warrants, the police
arrested the Nettos in their motel room at approximately
The day after the defendants' arrest, the manager of the motel contacted the
police and advised that the motel wanted to clean the room and prepare it for
new guests. The manager asked the police to remove the items remaining in the
room. Officers returned to the motel and retrieved from the motel room a
plastic trash bag containing a toaster and an ashtray (later identified as
Levesque's).[10]
a. Search incident to arrest. The motion judge held that the seizure of the
items at the time of the defendants' arrest exceeded the permissible scope of a
search incident to arrest because the seizure was effected after the defendants
had already been handcuffed and taken out of the room. The sequence of events,
undisputed at the hearing, was that the "search" of the room
occurred, and the items were noticed, while the defendants were still present,
but that the items were physically "seized" after the defendants were
escorted out of the room. We agree with the Appeals Court that nothing in this
sequence takes this search and seizure outside the permissible limits of a
search incident to arrest.
The defendants argue that their being placed in handcuffs restricted the
spatial limitations on any search incident to their arrest, and that the items
taken from the room were no longer within their reach at the precise moment the
items were seized. The scope of a search incident to arrest is not as narrowly
confined as the defendants suggest. In Commonwealth v. Elizondo, 428 Mass. 322,
324-325 (1998), this court upheld a search of a bathroom as a search incident
to arrest, even though the defendant was arrested and already handcuffed
"four or five feet" outside the bathroom. Obviously, the interior of
the bathroom itself was beyond the immediate reach of the handcuffed defendant
at the exact time of the search, but the defendant had obtained drugs from
within the bathroom during a controlled buy immediately prior to his arrest.
Here, the police were dealing with two murder suspects in the close confines of
a small motel room. They had probable cause to believe that the suspects still
had with them the fruits of their robbery and murder.[11] As in
Commonwealth v. Elizondo, supra, it is inappropriate to suppress evidence based
on hindsight measurements of precisely how far each defendant could have
reached at the moment the item in question was seized. See Commonwealth v. Dickerson,
372 Mass. 783, 786-787, 791-792 (1977), overruled on other grounds,
Commonwealth v. Paulding, ante 1 (2002) (upholding seizure and search of bag
found at foot of defendant's hospital bed as search incident to arrest even
though defendant was suffering from multiple gunshot wounds and outnumbered by
two officers); Commonwealth v. Turner, 14 Mass. App. Ct. 1023, 1024 (1982)
(search of pillowcase and tote bag placed on floor outside hotel room at time
of arrest upheld as search incident to arrest even though defendants taken
inside adjacent room prior to actual search). "While the need for the
incident-to-arrest exception is indeed grounded on the need to protect law
enforcement officers and evidence, the validity of such a search does not end at
the instant the risks justifying the search come to an end. Even though the
warrant exception is well grounded on the existence of exigent risks attending
arrest, the pragmatic necessity of not invalidating such a search the instant
the risks pass is well accepted. . . . [Officers] need not reorder the sequence
of their conduct during arrest simply to satisfy an artificial rule that would
link the validity of the search to the duration of the risks." United
States v. Nelson, 102 F.3d 1344, 1347 (4th Cir. 1996), cert. denied, 520 U.S.
1203 (1997) (upholding search of shoulder bag as search incident to arrest,
even though bag was searched after defendant was arrested and removed to
another room). Here, the defendants acknowledge that the officers could have
seized the items at the time they first entered the room. That the officers
handcuffed the defendants and removed them from the room (for obvious purposes
of officer safety) should not preclude them from seizing those same items
immediately following the removal of the defendants.
Indeed, in Commonwealth v. Madera, 402 Mass. 156, 160-161 (1988), this court
upheld the search of a gym bag taken from the defendant at the time of his
arrest even though "the police presence was substantial and the risk of
the defendant successfully repossessing the bag was minimal." There, as
here, the object of the search was evidence relating to the same crime for
which the defendant had been arrested. Rather than "rely[ing] on the
existence of a tenuous or perhaps even imaginary exigency to uphold the
search," the court held that "[t]he police are entitled to a bright
line rule that permits them, even in the absence of exigent circumstances, to
search a bag carried by a person whom they lawfully arrest on probable cause, or
otherwise, where there is also probable cause to believe that the bag contains
evidence of the crime for which the arrest was made." Id.
b. Search of the motel room the day following the arrest. The toaster and
ashtray were not seized until the day after the defendants' arrest, and that
seizure therefore cannot be justified as a search incident to arrest. By that
time, however, the defendants no longer had a reasonable expectation of privacy
with respect to items left in the motel room. A guest does not have any
expectation of privacy in his hotel room once his rental period has expired.
See Commonwealth v. Paszko, 391 Mass. 164, 185 (1984), quoting United States v.
Jackson, 585 F.2d 653, 658 (4th Cir. 1978); Commonwealth v. Brass, 42 Mass.
App. Ct. 88, 89-90 (1997), and cases cited.
The defendants argue, however, that there was no evidence of the precise check
out time at the motel, and thus no evidence as to whether the police entry into
the room that day was before or after the defendants' rental period for the
room had expired. Of course, the burden is initially on the defendants to
demonstrate that they had a reasonable expectation of privacy in the motel room
and its contents at the time of the search.
Moreover, even if the motel manager let the police into the room slightly prior
to the customary checkout time, a hotel guest relinquishes any expectation of
privacy during the remainder of the rental period once the guest abandons the
room. See Commonwealth v. Paszko, supra at 184-185 (where guest departed motel
room two days prior to end of rental period, registered at another motel, and
was traveling to another city, he had no intent to return prior to checkout
time and was found to have abandoned room). Where circumstances make it
apparent to hotel personnel that a guest has left and will not be returning
prior to the checkout time deadline, that guest has no reasonable expectation
of privacy in the formerly occupied room, as it is to be expected that hotel
staff will enter the room, remove any belongings left behind, and rent the room
to the next guest. This is true without regard to the circumstances that caused
the guest to depart, as long as it is clear that the guest is not returning.
Thus, the fact that a guest's premature departure from the hotel was
involuntary does not operate to extend the period of the guest's expectation of
privacy in the room. Rather, it is the fact of abandonment, not the circumstances
that gave rise to the abandonment, that causes the previously reasonable
expectation of privacy to end. Here, the guests' abandonment of the room was
due to their arrest on murder charges. As of the next day, when the rental was
to expire, they had not returned to retrieve their belongings, made any
arrangements to have someone else retrieve their belongings, or taken any steps
to extend the rental period. From the motel's point of view, the room had been
abandoned. In such circumstances, they no longer had any reasonable expectation
of privacy in the room, as it would not have been reasonable for them to expect
that motel personnel would not disturb the room or the belongings they had left
behind. See United States v. Huffhines, 967 F.2d 314, 318 (9th Cir. 1992) (no
expectation of privacy in motel room after initial rental period expired,
rejecting argument that expectation should be extended because arrest prior to
termination of rental period had prevented guest from extending rental); United
States v. Croft, 429 F.2d 884, 887 (10th Cir. 1970) (same); United States v.
Reyes, 908 F.2d 281, 285-286 (8th Cir. 1990), cert. denied, 499 U.S. 908 (1991)
(no continued expectation of privacy where arrest prevented defendant from
extending his rental of locker). See also Abel v.
3. Voluntariness of Joseph Netto's statement to White. Joseph Netto claims that
the judge erred in not conducting a voir dire to determine the voluntariness of
his statement to Bennie White, in which the defendant predicted that Levesque
would "end up with a knife in his back." At trial, the defendant never
raised any objection on grounds of alleged involuntariness, and never requested
a voir dire on the issue.[14] His theory at trial was that the statement
was never made. His counsel impeached White by demonstrating that White had
never told the police of this alleged statement (despite its obvious relevance
to the investigation), and argued that White's eve of trial invention of such a
statement was the product of White's efforts to shift blame to the defendant.
The contention, now raised on appeal, that the statement should have been
excluded for lack of voluntariness is premised on the fallacious assumption
that voluntariness is even germane to statements made prior to the crime. See
Commonwealth v. Boateng, ante at 498, 504 (2003). Here, we are not dealing with
any form of admission or confession to a crime that has been obtained in
circumstances giving rise to a question whether it was given involuntarily.
Rather, we are dealing with a defendant's expression of his state of mind, made
prior to the crime, concerning his dislike of the victim. Here, as in
Commonwealth v. Boateng, supra, the defendant cites no authority for the
proposition that such precrime statements are only admissible if they meet the
test of voluntariness that we apply to a defendant's postcrime admission or
confession. See Fifth Amendment to the
4. Sufficiency of the evidence of joint venture. Joseph Netto argues that there
was insufficient evidence to submit his indictment to the jury on the
alternative theory of joint venture,[15] because the Commonwealth failed
to introduce sufficient evidence that Nancy Netto was the actual stabber.
Although the defendant moved for a required finding of not guilty, his motion
did not specify the defect in the evidence that he now raises on appeal.
"[A] generally phrased motion for directed verdict 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"
(emphasis in original). Commonwealth v.
The defendant's argument is based on a misperception as to the elements of
joint venture. To succeed on a joint venture theory, the Commonwealth need not
prove the identity of the actual perpetrator and need not prove that someone
other than the defendant was the actual perpetrator.
5. Sufficiency of the evidence as to Nancy Netto. Nancy Netto argues that there
was insufficient evidence of her presence, knowledge of a weapon, or
participation in the crime to warrant a conviction of felony-murder as a joint
venturer predicated on armed robbery. We disagree. As to her presence at the
scene, the Commonwealth introduced evidence that her fingerprint was on the
bathroom door handle in Levesque's apartment, that it was a "fairly fresh"
print, and that Nancy Netto had not been allowed into the apartment for one
week prior to the crime. In combination, that evidence, viewed in the light
most favorable to the Commonwealth, was sufficient to prove that Nancy Netto
had been in Levesque's apartment at the time of the crime. See Commonwealth v.
Clark, 378 Mass. 392, 405-406 (1979), quoting McNeil v. State, 227 Md. 298, 300
(1961) ("fingerprint evidence found at the scene of a crime must be
coupled with evidence of other circumstances tending to reasonably exclude the
hypothesis that the print was impressed at a time other than that of the
crime"); Commonwealth v. LaCorte, 373 Mass. 700, 703 (1977) ("when
the prosecution can establish that fingerprints found at the scene of the crime
could have been impressed only during the commission of the crime, fingerprint
evidence pointing to the defendant almost certainly will support a
conviction").[17] There was sufficient evidence of Nancy Netto's
physical presence in Levesque's apartment on the night of the robbery and
murder.
The defendant also argues that there was insufficient evidence of her knowledge
that her coventurer was armed with a dangerous weapon, thus precluding any
conviction of armed robbery or felony-murder predicated on armed robbery.
The defendant argues that, because the murder weapon came from inside
Levesque's apartment and was not brought to the scene by her joint venturer,
the use of the weapon could have been totally unplanned and unforeseen, and she
would not have had any opportunity to observe her coventurer carrying the
weapon. That argument, although it might persuade a jury not to draw any
inference of the defendant's knowledge of the weapon, does not prevent the jury
from drawing that inference. Inferences must be reasonable, but they do not
have to be inescapable. The mere existence of some argument against the
inference does not make the inference impermissible.
Moreover, her argument ignores other evidence suggesting that Levesque was also
struck in the head with a blunt object. From the combination of wounds and the
location of the body, it would appear that Levesque was struck with some object
just inside the door and, when that blow proved inadequate to subdue him,[18]
one of the defendants obtained a more lethal weapon from the kitchen. Joseph
Netto then used that weapon to kill Levesque. On this evidence, it was
permissible for the jury to infer that Nancy Netto had knowledge that her
coventurer in the robbery was armed.
6. Lesser included offense of unarmed robbery. Nancy Netto argues on appeal
that the judge erred in not instructing the jury on the lesser included offense
of unarmed robbery and not instructing the jury on felony-murder predicated on
an unarmed robbery. At trial, counsel made no request with respect to any
lesser included offenses. The judge expressly noted the absence of any such
requests, and recognized that there were valid strategic reasons for not
requesting lesser included offenses on the verdict slips. Having waived this
issue below, Nancy Netto now contends that failure to instruct on unarmed
robbery, and on felony-murder predicated on unarmed robbery, creates a
substantial likelihood of a miscarriage of justice such that we should reverse
the conviction pursuant to G. L. c. 278, § 33E.
We agree that, had they been requested, instructions on the lesser included
offense of unarmed robbery, and corresponding instructions on felony-murder
predicated on unarmed robbery, would have been required. While, as discussed
above, the evidence permitted the jury to infer that Nancy Netto had the
requisite knowledge that her coventurer was armed, the jury were not compelled
to draw such an inference. It was thus permissible for the jury to conclude
that Nancy Netto had been a joint venturer in a robbery but, if unconvinced
that she knew about the weapon, she only had the requisite knowledge and intent
to participate in an unarmed robbery. And, while unarmed robbery is a felony,
it is not within the category of crimes that are inherently dangerous to human
life. Commonwealth v. Moran, 387
That instruction on these points would have been appropriate if requested does
not mean that failure so to instruct necessarily gives rise to a substantial
likelihood of a miscarriage of justice. We have previously noted that there are
sound tactical reasons for a defendant to decline an instruction on unarmed
robbery as the predicate for felony-murder, as such an instruction merely gives
the jury an alternative basis on which to convict the defendant of
felony-murder.
Rather, as indicated in Commonwealth v. Melendez, supra, it is potentially
beneficial to the defendant to forgo any instruction on unarmed robbery and, in
the hope of obtaining an acquittal, capitalize on the weaknesses in the
Commonwealth's evidence concerning knowledge of a weapon. That is precisely the
argument that defense counsel made below. His closing argument highlighted the
various ways in which the Commonwealth's evidence of Nancy Netto's involvement
in the actual crime was missing, e.g., the lack of any blood samples linked to
her, the lack of any injuries on her (as opposed to her codefendant's cut
hand), and the uncertainty as to when the allegedly inculpatory fingerprint
might have been placed on the bathroom door handle.[19] In the same
vein, his closing argument stressed the lack of evidence with regard to Nancy
Netto's awareness of any weapon, providing a further example of the weaknesses
in the case against Nancy Netto. It would not have aided the defense to have
the judge tell the jury that what was being argued to them as a fatal weakness
in the Commonwealth's evidence was not in fact an impediment to the jury's
finding her guilty of felony-murder in the first degree. Counsel's concurrence
in the judge's statement that there were strategic reasons for not wanting an
instruction on unarmed robbery was reasonable and appropriate.[20] Where
counsel's failure to request such an instruction, or to make any objection to
the instructions on this issue, was a reasonable tactical decision, we do not
find a substantial likelihood of a miscarriage of justice.
7. Conclusion. We therefore vacate as duplicative the armed robbery conviction
as to Nancy Netto (see note 2, supra), affirm the remaining convictions as to
both defendants, and decline to grant relief pursuant to G. L. c. 278, § 33E.
So ordered.
FOOTNOTES:
[1] Two against Nancy J. Netto and one against Joseph
T. Netto.
[2] As to Nancy Netto, the Commonwealth concedes that
the conviction of armed robbery is duplicative of the felony-murder conviction
and that the armed robbery conviction must therefore be vacated.
[3] The Commonwealth attempted to introduce evidence
that the reason for that friction was Levesque's suspicion that Nancy Netto was
trying to steal things from him, but the judge sustained the defendants'
objection to that evidence.
[4] In fact, it was Bennie White who had telephoned
the police, not Levesque.
[5] There was no DNA analysis performed on any of the
samples.
[6] The Nettos moved to suppress all of the evidence
seized from their motel room. Details of those seizures are discussed below in
connection with our analysis of the motion to suppress.
[7] The Commonwealth's theory was that the murder
weapon had become slippery with blood, causing Joseph Netto's hand to slide
down and be cut against the blade.
[8] Nancy Netto later filed an essentially identical
motion.
[9] The defendants were "not dressed" at
the time the officers entered the room. The clothes lying on the chair were
presumably the clothes that the defendants had been wearing earlier.
[10] Officers had seen the trash bag at the time of
the arrest the day before, but, at that time, they had no information
concerning any missing toaster or ashtray and had therefore not recognized the
items in that bag as having any evidentiary value.
[11] The search of the defendants' apartment earlier
that day had not uncovered any jewelry or any substantial amount of money. It
would be logical to assume that the defendants, on leaving their apartment, had
taken with them any stolen monies or stolen personal items still in their
possession.
[12] A defendant's clothing is often seized incident
to an arrest.
[13] The defendants also contend that, because any
exigency at the scene had passed by the time the officers returned to the
police station, the further search of the seized items could not be performed
at the station. Again, Commonwealth v.
[14] There was only a general objection to White's
testimony, without any subsequent indication of the basis for the objection.
Then, when White testified that the defendant was under the influence of heroin
at the time of the statement (the ground asserted for the present claim of lack
of voluntariness), the defendant objected that the testimony was "not
responsive" to the question. Neither of these objections raised an issue
of lack of voluntariness.
[15] He acknowledges that there was sufficient
evidence to convict him as the principal.
[16] Even if the evidence of joint venture were
insufficient, the submission of that theory to the jury does not give rise to a
substantial likelihood of a miscarriage of justice. It is evident from the
verdicts returned that the jury convicted Joseph Netto as the actual stabber.
Joseph Netto was found guilty of murder in the first degree on theories of
deliberate premeditation, extreme atrocity or cruelty, and felony-murder,
whereas Nancy Netto was convicted only on the basis of felony-murder. Moreover,
during their deliberations, the jury asked a question expressing doubt whether
Nancy Netto was even present during the actual stabbing, and asking whether her
presence at and participation in the robbery would suffice for a conviction of
joint venture felony-murder even if she had not been physically present at the
time of the killing itself. See note 19, infra. From the combination of
verdicts returned, and from the question posed by the jury, it is apparent that
Joseph Netto was convicted as a principal, not as a joint venturer.
[17] While the fingerprint may have been the
strongest evidence of Nancy Netto's physical presence at the scene, there was
abundant other evidence linking her to this crime. She made immediate use of
the proceeds of the crime, calling Costanzo for a ride (for the purpose of
getting heroin that she had been unable to afford earlier in the day) at around
[18] The downstairs neighbor heard raised men's
voices coming from Levesque's apartment shortly after the time Levesque would
have returned home. This suggests that Levesque did indeed put up some degree
of resistance once he realized the Nettos's plans.
[19] These arguments were sufficiently persuasive as
to cause the jury to ask for further instructions concerning the timing of
Nancy Netto's physical presence in Levesque's apartment. In response to the jury's
question whether joint venture felony-murder required the defendant to be
physically present at the time of the actual stabbing (see note 16, supra), the
judge provided a thorough and complete explanation of the requirement that the
killing had to be "incidental to and the natural and probable consequence
of the armed robbery," see Commonwealth v. Nichypor, 419 Mass. 209, 215
(1994), specifically advising the jury that "[i]n order for the killing to
be incidental to and a natural and probable consequence of the nonstabber's
participation in the armed robbery, the killing must have taken place during a
single logically related continuing criminal transaction at a time when the
nonstabber was actively involved as a participant in the armed robbery."
He then articulated further that, if a joint venturer in an armed robbery
"was no longer actively involved and the killing took place after the
nonstabber was no longer actively involved in committing a crime, then the
nonstabber is not guilty of armed robbery felony murder." He also
instructed the jury that if the joint venturer did not become involved until
after the victim had already been killed, the joint venturer would not be
guilty of armed robbery or of any form of murder. In considering these issues,
the judge instructed the jury to consider several factors: whether there was
"a break in the logical chain of events" between the robbery in which
the joint venturer was involved and the killing, whether there was "a
separation of an appreciable amount of time" between the robbery and the
killing, and whether the killing "occurr[ed] at a place that was different
and separate from the nonstabber." Counsel for both defendants stated that
they were satisfied with these supplemental instructions; neither defendant
raises any claim of error with respect to these supplemental instructions; and,
reviewing them under G. L. c. 278, § 33E, we are satisfied that these
supplemental instructions provided the jury with correct guidance in response
to their question. As such, the jury's doubt as to whether Nancy Netto was
physically present during the actual stabbing did not prevent the jury from
finding her guilty of felony-murder, as, having been instructed on the
ramifications of that aspect of the facts, they concluded that the killing of
Levesque occurred incidental to and as a natural and probable consequence of
her involvement in the armed robbery.
[20] Appellate counsel misinterprets the transcript
to suggest that counsel failed to see that there were any lesser included
offenses that would have been supported by the evidence. Trial counsel
accurately noted that, as to Nancy Netto, there was no basis for a verdict of
murder in the second degree. Unarmed robbery can form the predicate for
felony-murder in the first degree, as long as the Commonwealth proves the
requisite conscious disregard of the risk to human life. Commonwealth v.