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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. Souza, 428
Supreme Judicial Court of Massachusetts,
Argued
Decided
Stephen Neyman,
James P. McKenna, Special Assistant District
Attorney, for the Commonwealth.
Before WILKINS, C.J., and ABRAMS, LYNCH, FRIED and
MARSHALL, JJ.
MARSHALL, Justice.
On
The
convictions arose from events surrounding the shooting death of the chief of
police of the town of
On
Represented
by new counsel on appeal, the defendant challenges only his convictions of
murder in the first degree and armed robbery.
He claims error in the denial of his motion to suppress statements he
gave to the police; the judge's giving
of an instruction on self‑defense despite his request that no such
instruction be given; the judge's
refusal to give a requested instruction on involuntary manslaughter; the denial of his motion for a required
finding of not guilty on the armed robbery indictment; trial counsel's failure to request and the
judge's [428 Mass. 480] failure to give instructions on
lesser included offenses of armed robbery and on felony‑murder in the
second degree; and trial counsel's
failure to object to the form of the verdict slip for the murder indictment
because it did not require the jury to specify whether they found that the
defendant had acted as a principal or as a joint venturer. The defendant also challenges the armed
robbery conviction on the ground that it is duplicative. We affirm the defendant's convictions and see
no reason to grant any relief pursuant to our power under G.L. c. 278, § 33E.
1. Facts.
(FN1) On the morning of February 1, 1994, the defendant and two others,
Kenneth Padgett and Jamie Richards, committed two burglaries while armed with
handguns supplied by the defendant. While the coventurers fled from the second
burglary in a stolen van, the van collided with a city of Worcester department
of public works (DPW) truck and lodged in a snowbank. A DPW crew was working nearby. The defendant and his coventurers then took
the DPW truck at gunpoint. When that
vehicle got stuck in the snow after a few hundred yards, they abandoned it and
fled on foot.
Chief
Mortell received word of the burglaries and the incident involving the city
crew shortly afterward. Responding to a
call for help from the Holden police, he saw three men running across a road
into a thickly wooded area near the Kendall Reservoir. Leaving his car on the road, he pursued the
men into the woods on foot. As he passed
a bush behind which the defendant hid, the defendant shot him. Chief Mortell returned fire, and then
collapsed. The defendant fired at him
repeatedly, eleven times in all. The
fatal shot entered the victim's left side, just under his armpit, traveled through
his lungs and heart, exited his right side and lodged in the inside of his
upper right arm. A second shot hit the
victim while he was bent over. The
defendant threw his gun into the snow and fled.
The tracks in the snow suggested that the three coventurers split up
near the [428 Mass. 481] location of the victim's body: Padgett and Richards went in one direction,
the defendant went in another. The
police apprehended the defendant shortly after the shooting, and apprehended
Padgett and Richards the following day.
(FN2)
[1] 2. Suppression of the defendant's statements. The defendant first claims that, because of
an improper inducement by the police, the waiver of his Miranda rights and his
subsequent statements to the police were not voluntary and should have been
suppressed. At the scene of his arrest
in the woods, the defendant received Miranda warnings and indicated that he
understood them. He was taken to the
Holden police station, where he was first interviewed by State Trooper Robert
O'Keefe and Holden Detective Albert Bourget for approximately forty
minutes. At the beginning of the
interview Trooper O'Keefe again informed the defendant of his Miranda
rights. Trooper O'Keefe then told the
defendant it was in his "best interest" to "set the record
straight" and tell them what happened that day. (FN3)
The defendant characterizes O'Keefe's statement as "unsolicited
advice of a legal nature" designed to elicit a waiver of his rights in
violation of Commonwealth v. Meehan,
377 Mass. 552, 564, 387 N.E.2d 527 (1979), cert. dismissed, 445 U.S. 39, 100
S.Ct. 1092, 63 L.Ed.2d 185 (1980). In Meehan, supra, we said that an officer
may suggest that it would be " 'better' for a suspect to tell the
truth," but that "an assurance, express or implied," that a
statement "will aid the defense or result in a lesser sentence" is
prohibited. Id., and cases cited. More recently, we held that an officer's
suggestion that it would be in the defendant's "best interests to get out
his side of the story" did not violate the prohibitions of Meehan, "and was [428 Mass. 482] more closely related to 'suggest[ing] broadly that it would be
'better' for a suspect to tell the truth,' which we have expressly allowed
police officers to do." Commonwealth v. Raymond, 424 Mass. 382,
395‑396, 676 N.E.2d 824 (1997), quoting Commonwealth v. Meehan, supra at 564, 387 N.E.2d 527.
Trooper
O'Keefe's statement to the defendant is all but identical to the one at issue
in Raymond and, for the reasons we
explained in that case, fell within the permissible zone of questioning. Id.
at 395‑396, 676 N.E.2d 824. We do
not agree with the defendant that the officer's statement "implicitly
assures something short of a prosecution for first degree murder." The officer made no promises of any kind to
the defendant, express or implied. Commonwealth v. Meehan, supra at 564, 387
N.E.2d 527.
[2] The
defendant also argues that his statements were the product of physical and
psychological intimidation. We conclude
that the judge's finding that the police conduct from the time of the
defendant's arrest until his arraignment "was not coercive or otherwise
overbearing or deceptive," is warranted by the evidence. See
Commonwealth v. Raymond, supra at 395, 676 N.E.2d 824. At the Holden police station, the defendant
was placed in a cell and told to remove his clothing, except his
underwear. The defendant was given a
blanket to cover himself, and taken to an interview room approximately eight
feet by ten feet. He was seated in a
chair in a corner directly across from a glass paneled door, and was handcuffed
to a bar on the wall, where he remained until he was arraigned later that
afternoon. The defendant points to the
fact that he was questioned by a series of officers over approximately three and
one‑half hours. After the initial
forty‑minute interrogation, a Worcester detective interviewed the
defendant for approximately one and three‑quarter hours. (FN4)
A State trooper also interviewed the defendant for approximately twenty
minutes. (FN5) The judge's conclusion that the interviews,
conducted in the middle of the day, were "not a stratagem designed to wear
[the defendant] down" but were reasonable and investigative is fully
supported: the defendant was a suspect
in the murder of a police officer, and the subject of an investigation in which
several local police departments and the State police were involved.
[428 Mass. 483] The defendant further claims that he was "humiliated"
and "deprived of his dignity" because he was questioned while stripped
of his clothing, handcuffed to a bar in a small room, observed in this
condition by percipient witnesses and deprived of his privacy. We would not tolerate the custodial
interrogation of a suspect who is nude.
See Commonwealth v. Collins,
11 Mass.App.Ct. 126, 131, 414 N.E.2d 1008 (1981) (the "coercive effect of
being nude during custodial interrogation is well settled"). But the defendant was not nude; he was permitted to wear his underwear and
the police provided him with a blanket to cover himself. The removal of his clothing was not for
coercive purposes: the police had a
legitimate interest in preserving his clothing as possible evidence. The judge also made no error in concluding
that the police took reasonable precautions by handcuffing the defendant to a
bar: the defendant was an escape
risk. (FN6) He makes no claim that the handcuffs caused
him any pain, nor does he suggest that he was in any other kind of
discomfort. (FN7) Five workers from the Worcester DPW arrived
at the Holden police station during the interrogation and looked at him through
the glass door. The judge found this was
for the purpose of identifying the suspect.
For the police to seek assistance in identifying a suspect in this
manner is not inappropriate.
[3] "The test for voluntariness of a
confession (FN8) is 'whether, in light
of the totality of the circumstances surrounding the making[428 Mass. 484] of the statement, the will of the defendant
was overborne to the extent that the statement was not the result of a free and
voluntary act.' " Commonwealth v. Raymond, supra at 395,
676 N.E.2d 824, quoting Commonwealth v.
Selby, 420 Mass. 656, 663, 651 N.E.2d 843 (1995). On our own review of the record of the
hearing, we are satisfied that the defendant's statements were voluntary. Id.
(FN9)
[4][5] 3. Self‑defense instruction. The defendant next claims that the judge
committed reversible error by instructing the jury on self‑defense over
his objection. (FN10) First, he says, the instruction was not warranted
by the evidence. Were the defendant
correct‑‑and we conclude he is not‑‑any error would not
be prejudicial. A defendant is rarely
prejudiced when a judge has given an instruction on self‑defense to which
he is not entitled because the instruction is generally "more favorable to
the defendant than he deserved." Commonwealth v. Torres, 420 Mass. 479,
492, 651 N.E.2d 360 (1995). See Commonwealth v. Curtis, 417 Mass. 619,
632, 632 N.E.2d 821 (1994) (where defendants were not entitled to any
instruction on self‑defense, "whatever the judge said about self‑defense,
and the use of excessive force in self‑defense, was more favorable to the
defendants than they deserved and could not have prejudiced their
positions"). We conclude, however,
that the evidence did support an instruction on self‑defense.
During his
postarrest interrogations the defendant told the officers, "I'm a
[breaking and entering] guy. Maybe I've
committed some [breaking and enterings].
But just because someone is [breaking and entering], doesn't give the
police the right to shoot them."
When asked if he was suggesting that the police fired first, the
defendant responded, "If I'm given a chance to [428 Mass. 485] stop, I
stop," a statement he repeated on several occasions. He also stated three times that "he was
being shot at, he had no choice."
Those statements were in evidence.
Collectively, they permit an inference that the victim, rather than the
defendant, fired the first shot or shots.
(FN11) We recognize that there
was scant evidence from which the jury could have concluded that the defendant,
assuming that he had not been the first to fire, used no more force than was
reasonably necessary. See Commonwealth v. Torres, supra, quoting Commonwealth v. Curtis, supra at 632, 632
N.E.2d 821. Nevertheless, taking the
facts in the light most favorable to the defendant, Torres, supra at 492, 651 N.E.2d 360, we cannot conclude that it
was error for the judge to interpret the defendant's postarrest statements as
requiring a self‑defense instruction.
(FN12) See Commonwealth v. Reed, 427 Mass. 100, 102, 691 N.E.2d 560 (1998).
[6][7] The
defendant's second claim that, even if warranted by the evidence, it was reversible
error for the judge to give a self‑defense instruction sua sponte and
over his express objection raises a different question. The defendant did not present a self‑defense
theory to the jury; at trial he never
contended that self‑defense played any role in the case. He claims the instruction violated his right
to choose his theory of defense and vitiated his "rather strong"
defense that he was not the shooter who killed the victim. (FN13)
" 'It is the rule that where the issue of self‑defense has
been sufficiently raised by the evidence,
the defendant is entitled to an instruction which places on the Commonwealth
the burden of disproving the factor of self‑defense [428 Mass. 486] beyond
a reasonable doubt' " (emphasis supplied). Commonwealth v. Curtis, supra
at 631, 632 N.E.2d 821, quoting
Commonwealth v. Maguire, 375 Mass. 768, 772, 378 N.E.2d 445 (1978). We have also said that a judge "must instruct on self‑defense in a
homicide case if the evidence most favorable to the defendant warrants a
reasonable doubt whether 'the defendant:
(1) had reasonable ground to believe and actually did believe that he
was in imminent danger of death or serious bodily harm, from which he could
save himself only by using deadly force, (2) had availed himself of all proper
means to avoid physical combat before resorting to the use of deadly force, and
(3) used no more force than was reasonably necessary in all the circumstances
of the case' " (emphasis supplied). Commonwealth v. Torres, supra at 492, 651
N.E.2d 360, quoting Commonwealth v.
Curtis, supra at 632, 632 N.E.2d 821.
But we have not addressed previously whether a defendant may veto a self‑defense
instruction in a case where the evidence may warrant the instruction.
Although a
defendant's trial strategy is respected,
Breese v. Commonwealth, 415 Mass. 249, 251, 612 N.E.2d 1170 (1993), and
although there was no requirement that the judge give a self‑defense
instruction because there was no such request from the defendant or the
Commonwealth, we conclude that in this case it was not prejudicial to do
so. First, the defendant's story to the
police‑‑a story that the jury, correctly, were permitted to hear‑‑suggested
that he had no choice but to shoot at his pursuer. There was, of course, conflicting evidence
that undermined the story the defendant gave to the police. But the jury reasonably could have concluded
that a police officer pursuing a suspect might have fired one or more shots
first. See note 11,supra. The self‑defense
instruction was favorable to the defendant precisely because it permitted the
jury to consider that evidence in a way that was wholly beneficial to him. (FN14)
Second, to negate the element of malice, the defendant requested and the
judge gave an instruction on hot blood upon sudden combat (FN15);
the evidence, he said, supported the conclusion that the victim was the first
to [428 Mass. 487] shoot. In requesting that instruction, the defendant
must have concluded that the jury might disbelieve his defense that he was not
the shooter. The self‑defense
instruction similarly anticipated that the jury might disbelieve the
defendant's story that he was not the shooter.
Any prejudice that the defendant claims resulted from the self‑defense
instruction is no different than the "prejudice" that resulted from
the hot blood upon sudden combat instruction he requested and received. (FN16)
Finally,
the defendant claims that the self‑defense instruction gave the
Commonwealth an opportunity to comment unfavorably on such a defense in its
closing argument and thereby shifted the burden to the defendant to justify his
earlier statements to the police suggesting that he acted in self‑defense. (FN17)
Here, the prosecutor based his closing argument on the evidence, [428 Mass. 488] and it would have been proper even in the absence of an
instruction on self‑defense. See Commonwealth v. Connor, 392 Mass. 838,
853, 467 N.E.2d 1340 (1984). The
"opportunity" to make the argument arose from the defendant's own
statements to the police, not from any anticipation that the judge would give a
self‑defense instruction. Nor was
the burden shifted to the defendant. The
judge instructed the jury that the Commonwealth bore the burden of proving that
the defendant had not shot the victim in self‑defense, and the burden of
proof never shifted.
[8] 4. Joint venture theory of murder. The judge instructed the jury on individual
liability and joint venture theories of murder.
The defendant claims that the evidence was insufficient to warrant a
finding that he acted not as the shooter, but as a joint venturer, (FN18) and
because the jury were not asked to specify on which basis‑‑principal
or joint venturer‑‑he was guilty, he may have been convicted
improperly as a joint venturer. Viewing
the facts in the light most favorable to the Commonwealth, there was adequate
evidence to support a conviction of murder on a theory of joint venture. It is, therefore, immaterial that the jury
did not specify whether they convicted him as a principal or a joint venturer. See
Commonwealth v. Cohen, 412 Mass. 375, 380, 589 N.E.2d 289 (1992).
[9] To
prove joint venture beyond a reasonable doubt, the Commonwealth had to
establish that the "defendant was (1) present at the scene of the crime,
(2) with knowledge that another intends to commit the crime or with intent to
commit a crime, and (3) by agreement is willing and available to help the other
if necessary." Commonwealth v. Williams, 422 Mass. 111,
121, 661 N.E.2d 617 (1996). See Commonwealth v. Semedo, 422 Mass. 716,
719, 665 N.E.2d 638 (1996) (Commonwealth must show that defendant "shared
with the principal the mental state required for the crime of
murder"). The defendant complains
that there was no evidence even "remotely suggesting" that either
Padgett or Richards had ambushed the victim and the defendant could only have
been convicted as a principal.
(FN19) We disagree. To support a joint venture conviction,
"[t]he inferences drawn by the jury need [428 Mass. 489] only be reasonable
and possible and need not be necessary or inescapable," Commonwealth v. Brooks, 422 Mass. 574,
577, 664 N.E.2d 801 (1996), and cases cited.
The evidence meets that standard.
All three coventurers fled into the woods together. At some point they parted, but the evidence
concerning their tracks in the snow is not inconsistent with a theory that
Padgett and the defendant had hidden close to each other (FN20) and waited for the victim to approach
before Padgett or the defendant shot the victim. The defendant knew that at least one of his
coventurers was armed, and there was overwhelming evidence that one or another
of the coventurers shot the victim.
"Direct evidence of who shot the victim[ ] 'is not required where,
as here, there is strong circumstantial evidence that one of the [assailants]
shot' the victim [ ]." Commonwealth v. Cohen, supra at 381, 589
N.E.2d 289, quoting Commonwealth v.
Casale, 381 Mass. 167, 174, 408
N.E.2d 841 (1980). See Commonwealth v. Brooks, supra at 577,
664 N.E.2d 801 ("[a]lthough there was no direct evidence that the
defendant fired a gun, there was sufficient circumstantial evidence that the
defendant was either one of the shooters or had joined in the others'
intent"). While the Commonwealth
did not dwell on this theory of liability, the evidence was sufficient to
convict the defendant on this basis.
[10] 5. Sufficiency of the evidence: armed robbery. The indictment for armed robbery was tied to
the events surrounding the confrontation between the coventurers and the DPW
crew. By a motion for a required finding
of not guilty, denied by the judge before he instructed the jury, the defendant
raised the question whether sufficient evidence existed to convict him of armed
robbery. He claimed that the
Commonwealth had not proved that he intended permanently to deprive the owner of‑‑that
is, to steal‑‑its DPW truck.
(FN21) He challenges the judge's
denial of his motion.
[11][12]
"The standard for evaluating a motion for a required finding of not guilty
is 'whether, after viewing the evidence in the light [428 Mass. 490] most
favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt' " (emphasis in original). Commonwealth v. James, 424
Mass. 770, 784, 678 N.E.2d 1170 (1997), quoting Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370
(1979). "One who takes property
without the authority of the owner and so uses or disposes of it as to show
indifference whether the owner recovers possession may be found to intend to
deprive the owner of it permanently." Commonwealth v. Salerno, 356 Mass. 642,
648, 255 N.E.2d 318 (1970). (FN22) There was evidence that the truck was taken
at gunpoint and that the defendant and his coventurers drove off in the truck. The jury could have inferred that the
defendant intended to drive the truck to effectuate his escape and that he did
not intend to return it. This was no
"joyride." (FN23) See
Commonwealth v. Pena, 39 Mass.App.Ct. 332, 334, 656 N.E.2d 315 (1995),
citing Commonwealth v. Latimore, supra
at 677‑678, 393 N.E.2d 370. The
judge properly submitted this issue to the jury. "Whether the taking was larcenous was
for the jury to decide on all the evidence." Id. "To the extent
that conflicting inferences are possible from the evidence, 'it is for the jury
to determine where the truth lies.' " Commonwealth v. Pena, supra at 334, 656
N.E.2d 315, quoting Commonwealth v.
Wilborne, 382 Mass. 241, 245, 415 N.E.2d 192 (1981). We do not agree with the defendant that he
took the city vehicle as an "afterthought" in
response to the "offer" of the foreman. The defendant was intent on escaping and
secured an escape vehicle at gunpoint.
See Commonwealth v. Padgett,
44 Mass.App.Ct. 359, 364, 691 N.E.2d 239 (1998). It matters little that he was forced to
abandon the stolen vehicle shortly afterward.
(FN24) The judge properly denied
the defendant's motion [428 Mass.
491] for a required finding of not
guilty of armed robbery. (FN25)
[13] One
further aspect of the defendant's claim requires comment. We have sustained a conviction of larceny for
the taking of a vehicle to effectuate an escape because the intent to deprive
the owner permanently may be found
where the defendant uses or disposes of the vehicle so "as to show
indifference" whether the owner recovers possession of it.
Salerno, supra at 648, 255 N.E.2d 318. See
Commonwealth v. Padgett, supra at 364, 691 N.E.2d 239, citing State v. Barts, 316 N.C. 666, 690, 343
S.E.2d 828 (1986) (taking and subsequent abandonment of truck indicated
complete lack of concern as to whether the owner ever recovered it and
constituted sufficient evidence of an intent to deprive the owner permanently
of his property). After the judge gave
the jury an initial instruction that was consistent with our holding in Salerno, defense counsel challenged the
instruction. He argued that it was
erroneous to instruct the jury "to the effect that that would include any
indifference to whether or not the owner recovered. I believe there must be a specific intent to
permanently deprive." The judge
agreed, apparently relying on Commonwealth
v. Moore, 36 Mass.App.Ct. 455, 457, 632 N.E.2d 1234 (1994). (FN26)
Accordingly, the judge revised his initial instruction and told the jury
that the defendant's [428 Mass. 492] indifference to the city's recovery
of its truck would not be sufficient to prove the element of permanent
deprivation. (FN27) The revised instruction, argues the
defendant, is indicative of the judge's own conclusion that evidence of the use
of the
vehicle merely to escape would not be sufficient to prove larceny
and would "eradicat[e]" the element of permanent deprivation. The judge's revised instructions to the jury
were erroneous, but are not challenged by the defendant. The defendant concedes that the judge's
initial (and correct) instructions, "if considered by the jury, could have
conceivably justified a robbery conviction." In these circumstances, there is no
substantial likelihood of a miscarriage of justice even though the jury
considered the evidence through the lens of an erroneous instruction.
[14][15]
6. Involuntary manslaughter. The defendant claims that the judge erred in
refusing to instruct the jury on involuntary manslaughter. "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 Mass. 28, 33,
642 N.E.2d 579 (1994), citing
Commonwealth v. Sires, 413 Mass. 292, 301, 596 N.E.2d 1018 (1992). During a lobby conference, defense counsel
told the judge that the jury could conclude that the defendant fired at the
victim in order to slow him down, and that such an action would constitute
wanton and reckless conduct, as opposed to an intentional killing. The judge was correct to refuse to give the instruction.
[16][17]
An involuntary manslaughter instruction is warranted if death [428 Mass. 493] was "the unintentional result of an act committed with such
disregard of its probable harm to another as to amount to wanton or reckless
conduct." (FN28)
Commonwealth v. Nichypor, 419 Mass. 209, 217, 643 N.E.2d 452
(1994). But "[a]n involuntary
manslaughter charge is not required when it is obvious that 'the risk of
physical harm to the victim creates a "plain and strong likelihood that
death would follow." ' " Commonwealth v. Brooks, supra at 578, 664
N.E.2d 801, quoting Commonwealth v.
Fitzmeyer, 414 Mass. 540, 547, 609 N.E.2d 81 (1993). (FN29)
The victim was shot twice, once through the heart, and once in the back
while he was kneeling down and bent over.
Another bullet hit the tree against which the victim fell, lodging near
where his head rested. The defendant
fired at least eleven times, emptying the magazine of his nine millimeter
handgun. It is obvious that a
"plain and strong likelihood that death would follow" can be found in
these actions, making an involuntary manslaughter charge unsupportable. See
Commonwealth v. Brooks, supra at 578, 664 N.E.2d 801. See also
Commonwealth v. Johnson, 426 Mass. 617, 623, 689 N.E.2d 1327 (1998)
("defendant shot his victim three times, twice after he had fallen and was
lying helpless in the street. There can
be no doubt that [he] subjectively understood that a plain and strong
likelihood of death would result from his actions").
[18][19][20][21]
7. Lesser included offense instructions. The defendant claims that his trial
counsel's failure to request, and the judge's failure to give, jury
instructions on larceny, use without authority, and "carjacking," as
lesser included offenses of armed robbery, as well as a corresponding instruction
on second degree felony murder, created a substantial likelihood of a
miscarriage of justice. (FN30) "As a general rule, the jury should receive
an instruction on a particular offense where:
(1) the offense is, as a matter [428
Mass. 494] of law, a lesser included
offense of the crime charged; and (2)
'the evidence provides a rational basis for acquitting the defendant of the
crime charged and convicting him of the lesser included offense.' "
Commonwealth v. Donovan, 422 Mass. 349, 352, 662 N.E.2d 692 (1996),
quoting Commonwealth v. Santo, 375
Mass. 299, 305, 376 N.E.2d 866 (1978).
"Even when evidence is introduced that would justify conviction for
a lesser included offense, the defendant is not entitled to an instruction
thereupon unless the proof on the 'elements differentiating the two crimes is
sufficiently in dispute so that the jury may consistently find the defendant
innocent of the greater and guilty of the lesser included offense.' "
Commonwealth v. Egerton, 396 Mass. 499, 504, 487 N.E.2d 481 (1986),
quoting United States v. Brischetto,
538 F.2d 208, 209 (8th Cir.1976). See Commonwealth v. Pearce, 43 Mass.App.Ct.
78, 81, 681 N.E.2d 296 (1997), S. C.,
427 Mass. 642, 695 N.E.2d 1059 (1998) ("the jury must be presented with
some rational basis on which to reject the Commonwealth's proof on one or more
of the requisite elements of the greater offense"). Larceny and use of a motor vehicle without
authority are lesser included offenses of armed robbery, as is "carjacking"
in the circumstances of this case.
(FN31) The omission of these
instructions did not create a substantial likelihood of a miscarriage of
justice where the evidence was uncontroverted that the defendant, armed with a
nine millimeter handgun, took the truck at gunpoint from the foreman, who had
been in lawful possession of and driving it immediately beforehand.
[22] 8. Duplicative conviction. The defendant urges us to vacate his armed
robbery conviction because, he claims, it is duplicative of his conviction of
murder in the first degree on the theory of felony‑murder, with armed
robbery as the underlying felony. The
jury specified, and the evidence supports, that the defendant's conviction of
murder was based on a theory of deliberate premeditation and on a theory of
felony‑murder. Because the former
is an "additional, independent basis ... for the conviction of murder in
the first degree, a separate sentence for the underlying felony is
appropriate." Commonwealth v. Payne, 426 Mass. 692,
702, 690 N.E.2d 443 (1998), citing
Commonwealth v. Raymond, supra at 396‑397, 676 N.E.2d 824;
Commonwealth v. Buckley, 410 Mass. 209, 222, 571 N.E.2d 609 (1991).
[428 Mass. 495] 9. We have reviewed the record in accordance with our statutory
obligations under G.L. c. 278, § 33E, and determine that there is no
substantial likelihood of a miscarriage of justice in the defendant's
convictions. We have considered and
rejected each of the defendant's claims of legal error. We further observe that to escape arrest, the
defendant ambushed a pursuer whom he reasonably must have known was a law
enforcement officer. Had the defendant
surrendered, as he readily could have, the homicide of the officer would in all
likelihood have been avoided. In these
circumstances the interests of justice do not warrant a reduction of the crimes
of which the defendant was convicted.
Judgments affirmed.
(FN1.) Our recitation of the facts is taken
entirely from the evidence introduced by the Commonwealth at trial. The defendant objects to the Commonwealth's
inclusion in its appendix of statements made to the police by Padgett and
Richards after their respective arrests.
The statements were not introduced in evidence at the trial in this
case. They were introduced at the joint
hearing on the motions to suppress the statements filed by each of the three
coventurers, but the statements were not relevant to any issues pertaining to
the defendant's motion to suppress and were not referred to by the motion judge
in ruling on Souza's motion. We have not
referred to the statements of Padgett and Richards or relied on them in any
respect in reaching our decision.
(FN2.)
The conviction of Kenneth Padgett of murder in the second degree on a theory of
felony‑murder and of ten other offenses was affirmed on appeal.
Commonwealth v. Padgett, 44 Mass.App.Ct. 359, 691 N.E.2d 239
(1998). On July 5, 1995, Jamie Richards
pleaded guilty to murder in the second degree and other offenses.
(FN3.)
At the hearing on the motion to suppress, Trooper O'Keefe testified as
follows: "We began by telling him
again why we were there, and we thought that he should speak to us in regards
to this matter. Especially after we had
learned that he was Michael Souza, that he had been arrested for [breaking and
enterings] before and so forth. In fact,
the investigation included [breaking and enterings] in the town of Holden. We said to Michael that we thought it was in
his best interest to deal with us at this point, to set the record straight in
regards to what happened today. We said,
'What happened today?' During these
questions that we're asking Michael, Michael would momentarily cry and he would
state, 'What does it matter? Nothing
matters. I've [sic ] never going home again.
I'm never going to see my kid again.
A cop got shot.' "
(FN4.)
The detective was sent from Worcester to conduct the interview because he
thought he knew the defendant. He
immediately realized that he was mistaken, but nevertheless continued the
interview.
(FN5.)
The trooper was also sent to interview the defendant because he thought he knew
him, but realized immediately that he, too, was mistaken.
(FN6.)
The judge found that during one interview the defendant said that
"everything had gone wrong," and that the police "could let him
escape out the door and then shoot him."
He said that "he would not go to trial, that he would take his own
life first." He found that the
defendant told another officer that "in all likelihood the other suspects
would be apprehended and that there was nothing they could say that would help
him." See note 3, supra.
(FN7.)
Near the end of the third interview, the trooper noticed some dried blood in the
defendant's ear. The defendant then
indicated for the first time that he was injured. The defendant was examined and treated later in
the day at the infirmary at the jail and then at St. Vincent's Hospital, where
it was discovered that he had suffered a ruptured eardrum. The defendant's medical history indicated
that he had long‑term difficulties with that ear. The judge concluded that it was impossible to
determine whether the rupture had occurred in connection with his arrest. The judge also concluded that the injury to
the defendant's ear did not cause him any particular distress until just before
he was arraigned. His findings are
supported by the evidence.
(FN8.)
The defendant did not confess to the shooting of the victim. The judge found that "[m]ost of the
statements made by him were quite guarded and designed to allow himself to
later explain his actions as well as could be done under the
circumstances. He provided only the
information he wished to provide and he did so very carefully."
(FN9.) The defendant also claims error in the
judge's failure to give the jury a humane practice instruction sua sponte. The voluntariness of the defendant's
statements to the police was not a live issue at trial, Commonwealth v. Tavares, 385 Mass. 140, 150, 430 N.E.2d 1198,
cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982). There is, in any event, no substantial likelihood
of a miscarriage of justice because the defendant waived his rights and made
his subsequent statements voluntarily.
(FN10.) The judge instructed the jury:
"The
evidence in this case raises the issue of whether this killing was justified or
excused as a result of acts of self‑defense. The defendant does not bear the burden of
proving the justification or excuse.
Rather, the Commonwealth must prove to you beyond a reasonable doubt
that the killing was not the result of the defendant's acts of self‑defense. If it fails in its burden to prove the
killing was unlawful and not in self‑defense, then you need not proceed
further, but must return a verdict on the entire charge of murder, that is, not
guilty of murder in the first degree, and the lesser included charges of murder
in the second degree, and manslaughter."
(FN11.) At trial a police officer who had
joined in the search for the armed burglars testified that someone other than
the victim fired the initial volley of shots.
The jury were not required to believe that evidence.
(FN12.) In denying the defendant's motion for
a new trial, the judge stated that "the jury could have inferred that the
defendant was a house breaker who on the day in question was fleeing with two
accomplices after having committed a number of house breaks. It was his practice under those circumstances
in the past when he was told to stop fleeing by the police he always did
so. In other words, he did not resist
arrest, but gave up immediately and peacefully." It was the judge's view that this evidence
"required an explanation to the jury of the law of self‑defense."
(FN13.) The motion judge noted that the
relationship between the defendant's trial strategy and the instruction on self‑defense
"became much clearer during the closing arguments when the defendant
raised the argument for the first time that a codefendant was the
shooter." We note that in his
opening statement defense counsel told the jury that the evidence would show
that the defendant was not the shooter.
(FN14.) The defendant's reliance on Commonwealth v. Deeran, 10 Mass.App.Ct.
646, 649, 411 N.E.2d 488 (1980), is misplaced.
In that case, the judge concluded, and the Appeals Court agreed, that
the evidence was insufficient to raise the issue of self‑defense. Id.
at 648‑649, 411 N.E.2d 488.
(FN15.) The defendant requested the following
instruction:
"
'HOT BLOOD' ARISING FROM SUDDEN COMBAT.
If you have a reasonable doubt concerning whether the defendant acted
with malice, as I have described it, you may not find the defendant guilty of
murder. If, however, you are convinced
beyond a reasonable doubt that an intent 1. to kill, 2. to do serious bodily
harm, or 3. to do an act creating a plain and strong likelihood that death
would follow, arose in the defendant's mind but you are not persuaded beyond a
reasonable doubt that such intent did not arise when he was in a state of hot
blood upon sudden combat, you shall find the defendant guilty of
manslaughter."
The
judge agreed with the defendant's request and instructed the jury:
"Voluntary
manslaughter is an unlawful, intentional killing without malice resulting from
a sudden transport of the passions of fear, anger, fright, nervous excitement
or heat of blood when there is no time to deliberate, and when such passion or
heat of blood is produced by sudden combat.
And that passion produced by sudden combat is such that it will be
likely to produce in an ordinary person, an abnormal state of mind and did
actually produce such a state of mind in the defendant."
(FN16.) The defendant also requested an
instruction on involuntary manslaughter, discussed infra, that ostensibly created the same type of
"prejudice."
(FN17.)
The prosecutor argued in closing, "He's confronted with the possibility,
ladies and gentlemen, that others are going to get caught and provide evidence
or other evidence will come up, or that somebody might give a statement, what
does he do? He changes his mode and he
goes into the self‑defense mode.
Think about that. 'When I'm told
to stop, I stop. He just kept shooting,
I had no choice.' Is there any
ambiguity about that comment? Is there
anything left to guesswork? 'He just
kept shooting, I had no choice.' You
already know who the shooter is....
"And
when [other] evidence came in, the bullet going in here from the side ... and
the chief's ... left side exposed to his shooter ... when that evidence came
in, the gig was up. The self‑defense
wasn't going to work anymore. He knew
when this evidence came in ... the self‑defense wasn't going to
work. Self‑defense wasn't going to
work so, now it is Plan B. Now it is blame Kenneth Padgett."
(FN18.) The defendant does not contend that
there was insufficient evidence to support the conviction of premeditated
murder, i.e., that he acted as the principal.
(FN19.) Trial counsel took a different
position. He told the jury that it was
Padgett who had shot the victim:
"And it is clear, ladies and gentlemen, from the evidence in this
case, that [the shooter] is Kenneth Padgett." Similarly, on appeal the defendant insists
that his only defense at trial was that Padgett had killed the victim.
(FN20.) Trial counsel told the jury,
"[M]aybe you believe from the evidence that maybe [the defendant] was ...
sitting next to Padgett when Padgett was firing. It is not the only conclusion you can
reach."
(FN21.) General Laws c. 265, § 17, states in
relevant part: "Whoever, being
armed with a dangerous weapon, assaults another and robs, steals or takes from
his person money or other property which may be the subject of larceny shall be
punished by imprisonment in the state prison for life or for any term of
years...."
(FN22.) As discussed below, the judge
erroneously instructed the jury on this element of the offense.
(FN23.) See J.R. Nolan & B.R. Henry,
Criminal Law § 346, at 258 (2d ed. 1988)
("If a person should take an automobile, the property of another for a
'joy ride' and returns it within a short time to the place where it was taken,
a charge of larceny would be difficult to sustain").
(FN24.) The Commonwealth relies on State v. Houseman, 70 Ohio App.3d 499,
591 N.E.2d 405 (1990), which we find persuasive. In that case, a fleeing felon crashed and
abandoned a truck he had stolen at gunpoint. Id. at 505, 591 N.E.2d 405. The court stated:
"It
would not have been reasonable for the jury to find against the state on the
element of purpose to deprive the owner of property. It is evident from the events occurring that
appellant intended to use the truck to escape.
The fact that he was unsuccessful in using the ... truck to escape
because he wrecked it in the attempt does not mean the jury could have
reasonably determined this element of the offense was not proven by the
state."
Id. at 506, 591 N.E.2d 405. See
State v. Barts, 316 N.C. 666, 690, 343 S.E.2d 828 (1986).
(FN25.) On appeal, the defendant also claims,
for the first time, that the judge erred in denying his motion for a required
finding of not guilty because insufficient evidence existed to prove that he
took the truck by force or by placing the victim in fear. This contention is without merit. The defendant brandished a nine millimeter
handgun, ordered the city workers to the ground, fired a shot in the air, and
twice pointed his gun at the crew foreman.
This was "objectively menacing conduct by the defendant, Commonwealth v. White, 110 Mass. 407,
409 (1872), undertaken with the intent to put the victim in fear for the
purpose of stealing his property,
Commonwealth v. McCarthy, 360 Mass. 566, 568, 276 N.E.2d 696 (1971), and
resulting in reasonable fear or apprehension on the part of the victim,
facilitating the theft, Commonwealth v.
Richards, 363 Mass. 299, 304, 293 N.E.2d 854 (1973)."
Commonwealth v. Marcotte, 18 Mass.App.Ct. 391, 394, 466 N.E.2d 127
(1984). The issue of force was properly
submitted to the jury.
(FN26.)
In fact Commonwealth v. Moore, 36
Mass.App.Ct. 455, 457, 632 N.E.2d 1234 (1994), did not alter our holding in Commonwealth v. Salerno, 356 Mass. 642,
648, 255 N.E.2d 318 (1970). Moore held that it was erroneous for a
judge to instruct that the jury must find the defendant "to have intended
to permanently deprive the owner of the property or ... to have taken the property without authority in a state of
mind wherein he was indifferent to whether [the owner] ever got it back or
not. He's either got to intend to permanently interfere with the ownership
of the property or be indifferent to
whether the defendant got it back or not" (emphasis in original). Id.
at 457, 632 N.E.2d 1234. In other
words, in that case the judge erroneously instructed the jury that they must find that the defendant intended
permanent deprivation if they found that he was indifferent as to whether the
owner recovered possession, making it easier for the jury to find the required
intent.
(FN27.) The judge instructed: "When I was discussing the charge of
armed robbery, I made a statement to you regarding one of the elements of that
offense which I wish to correct. I won't
repeat [it] in its entirety. When I was
discussing about the intent that the offender must have to permanently deprive
the owner of his property, and that that intent can be inferred if the jury so
chooses from a defendant's words or conduct, I gave an example that said that
such an intent to steal may be inferred where a person takes property without
the owner's permission and then uses or disposes of it in a way which shows
indifference as to whether the owner recovers possession or not. I am going to strike that and ask you to
disregard it. So far as it states this
concept of using or disposing of property in a way which shows
indifference. Rather, the intention of
the person stealing, taking property, must be the intention of depriving the
owner of it permanently."
(FN28.) "A verdict of involuntary manslaughter
is possible only where the defendant caused an unintentional death (1) during
the commission of an act amounting to wanton or reckless conduct, or (2) during
the commission of a battery." Commonwealth v. Brooks, 422 Mass. 574,
578, 664 N.E.2d 801 (1996). The
defendant requested that the judge instruct the jury on the wanton and reckless
conduct prong of involuntary manslaughter only.
(FN29.) The evidence also does not support the
inference that the victim's death occurred unintentionally during the
commission of a nonfelonious battery.
See Commonwealth v. Fitzmeyer,
414 Mass. 540, 547, 609 N.E.2d 81 (1993).
Shooting the victim with a gun constitutes the felony of assault and
battery by means of a dangerous weapon.
G.L. c. 265, § 15A (b ).
(FN30.) Because the defendant did not preserve
these issues for appeal, we review them to see whether the errors, if any,
created a substantial likelihood of a miscarriage of justice.
Commonwealth v. Williams, 428 Mass. 383, 387, 701 N.E.2d 945 (1998).
(FN31.) See
Commonwealth v. Smith, 44 Mass.App.Ct. 394, 691 N.E.2d 583 (1998), holding
that unarmed robbery and carjacking constitute separate offenses because each
requires proof of an element that the other does not, but noting that
"where the indictment specifies
that a car was the object of the unarmed robbery, carjacking might ... be a
lesser included offense of unarmed robbery, even under the elements‑based
test of Morey v. Commonwealth, [108
Mass. 433, 434 (1871) ]" (emphasis in original). Id. at 397 n. 2, 691 N.E.2d
583. In this case the Commonwealth did
indict the defendant for robbery of a motor vehicle.