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13-P-1730 Appeals Court
COMMONWEALTH vs. DANIEL LEE LOPEZ.
No. 13-P-1730.
Essex. November 10, 2014. - July 29, 2015.
Present: Rubin, Brown, & Maldonado, JJ.
Homicide. Felony-Murder Rule. Robbery. Practice, Criminal,
Required finding, Instructions to jury, Lesser included
offense. Evidence, Consciousness of guilt, Identification,
Testimony before grand jury. Grand Jury. Witness.
Indictments found and returned in the Superior Court
Department on October 2, 2009, and February 28, 2011.
After review by this court, 80 Mass. App. Ct. 390 (2011),
the cases were tried before David Lowy, J.
Amy M. Belger for the defendant.
David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.
RUBIN, J. The defendant was indicted on charges of first
degree murder and unarmed robbery. After the trial court
allowed a motion to dismiss so much of the murder indictment as
was grounded on a theory of felony-murder, the Commonwealth
2
appealed. We reversed that order, see Commonwealth v. Lopez, 80
Mass. App. Ct. 390 (2011) (Lopez I), and reinstated the
indictment. An additional indictment was then brought against
the defendant, charging manslaughter. On remand, after a jury
trial, the defendant was acquitted of felony-murder, and was
convicted of involuntary manslaughter on a theory of wanton and
reckless conduct, and of unarmed robbery. On the involuntary
manslaughter charge, he was sentenced to fifteen to eighteen
years in State prison, and on the unarmed robbery charge he was
sentenced to a subsequent five years of probation. He now
appeals. We address each issue presented in turn.
1. Sufficiency of the evidence. The defendant argues
first that the evidence was insufficient on the charge of
involuntary manslaughter. The defendant's argument is that the
conduct that formed the basis of his involuntary manslaughter
conviction (a single punch to the victim's head) did not
"involve[] a high degree of likelihood that substantial harm
[would] result to another." Commonwealth v. Welansky, 316 Mass.
383, 399 (1944) (internal citations omitted). This argument is
difficult to maintain in light of our prior decision in Lopez I.
We need not rehearse in detail the facts that the jury might
have found viewing the evidence in the light most favorable to
the Commonwealth, as they turned out to be essentially the same
as those outlined in Lopez I, where the court examined the
3
evidence before the grand jury. This case involves a "sucker"
punch by the defendant to the head of an utterly unprepared
delivery person who was walking up steps carrying Chinese food
ordered by the defendant for delivery to an address that was not
his own. This punch from above sent the victim, Thu Nguyen,
falling backwards until his head struck the sidewalk with
audible impact. The victim began to gasp for air and to foam at
the mouth. The defendant got down on his knees next to the
victim, not to aid him, but to search his pockets, stealing
$125, as well as the Chinese food. Fifteen hours later, his
skull fractured by impact with the sidewalk, Nguyen died.
In Lopez I, we concluded that the evidence was sufficient
to provide the grand jury with probable cause to believe that
felony-murder had been committed in that the defendant's act was
"committed with conscious disregard of the risk to human life,"
that is, that because of the manner or method of the commission
of the underlying felony, here, unarmed robbery, the crime
created a "foreseeable risk of death." Lopez I at 394.
As we explained, "Conscious disregard demands conduct more
dangerous than that required for involuntary manslaughter. . . .
Involuntary manslaughter requires wanton or reckless conduct,
that is, conduct involving 'a high degree of likelihood that
substantial harm will result to another.' . . . Conduct evincing
conscious disregard . . . requires more than a mere threat of
4
substantial physical harm; conduct supporting felony-murder
liability must pose a foreseeable risk of actual loss of life."
Id. at 394 n.5 (internal citations omitted).
Having reached the conclusion in Lopez I that evidence
essentially identical to that put before the petit jury in this
case was sufficient to demonstrate probable cause that felony-
murder had been committed under a conscious disregard of risk to
human life theory, a fortiori such evidence was sufficient to
support at least a finding of probable cause that the defendant
committed involuntary manslaughter on a wanton and reckless
theory.
To be sure, "probable cause is 'considerably less exacting
than a requirement of sufficient evidence to warrant a guilty
finding.'" Lopez I at 393, quoting from Commonwealth v. O'Dell,
392 Mass. 445, 451 (1984). Our decision in Lopez I therefore
does not actually control this case. But the evidence of the
defendant's conduct produced at trial here was sufficient to
support the jury's finding beyond a reasonable doubt that he
committed the crime of involuntary manslaughter by delivering
the deadly blow to the victim. We therefore independently
conclude, for the reasons set forth in Lopez I, that the
evidence presented to the jury here was sufficient to
demonstrate the high degree of likelihood that substantial harm
5
would result essential to support the defendant's conviction of
involuntary manslaughter.
2. Submission of the felony-murder charge. The defendant
next argues that he should not have faced trial for felony-
murder, and that the submission of that count to the jury
prejudiced him by inviting the jury to compromise on a verdict
of involuntary manslaughter.
The defendant puts forward two theories for why the felony-
murder charge should not have been submitted to the jury. The
first is that the evidence was insufficient to show that he
acted with a conscious disregard of the risk to human life.
This argument is uphill in light of Lopez I, something the
defendant acknowledges.
The second argument is that the merger doctrine barred
submission of the felony-murder charge to the jury. In
Commonwealth v. Bell, 460 Mass. 294, 300 (2011), the Supreme
Judicial Court stated that "[i]n felony-murder the conduct which
constitutes the felony must be separate from the acts of
personal violence which constitute a necessary part of the
homicide itself" (citations omitted). In Bell, the defendant
had been convicted of felony-murder with a predicate felony of
armed home invasion. The fourth element of that predicate
felony was the use of force or the threat of the imminent use of
force. See ibid. Although the court found that the only force
6
the defendant actually used was the force that led to the
victim's death, see id. at 300-301, the felony-murder conviction
was ultimately reversed on other grounds. The court also found
that there was an additional threat of imminent force proven.
See id. at 302. But the court held that because of the merger
doctrine, on any retrial of the felony-murder charge with armed
home invasion as the predicate felony, "the jury must be
instructed," as they were not in the first trial, "that they may
not find the defendant guilty of felony-murder unless, with
respect to armed home invasion, they find that the Commonwealth
has proved the fourth element of the crime, i.e., conduct of the
defendant that was separate and distinct from the acts that
caused the victim's death." Id. at 303.1
In light of Bell, there is some strength to the defendant's
argument about merger, as in this case the element of stealing
or taking "by force and violence, or by assault and putting in
fear," G. L. c. 265 § 19(b), essential to the conviction of
unarmed robbery, was proved by the same conduct that caused the
death of the victim.
1
There had been no objection to the instruction at the
first trial, and, in light of the conclusion that a retrial was
required on other grounds, the court did not determine whether
the omission of this language from the instruction created a
substantial likelihood of a miscarriage of justice. 460 Mass.
at 302.
7
On the other side of the balance, the Commonwealth cites
Commonwealth v. Christian, 430 Mass. 552, 556 (2000). In
Christian, the defendant was convicted of armed robbery, which,
like unarmed robbery in the instant case, requires a taking "by
force and violence, or by assault and putting in fear." Ibid.,
citing G. L. c. 265, §§ 17, 19. Yet the court there stated that
"[w]e can envision no situation in which an armed robbery would
not support a conviction of felony-murder" under the merger
doctrine. Ibid.
The defendant argues in essence that Bell overruled
Christian. It is an interesting question whether and how the
two decisions can coexist; one that the Supreme Judicial Court
doubtless will one day have to address. But we need not here
decide whether the trial judge should have declined to charge
the jury on felony-murder, because the defendant's argument
founders on his need to show prejudice.
The defendant argues that a conviction of involuntary
manslaughter in a case in which felony-murder was improperly
submitted to the jury may reflect an improper compromise verdict
that would not have entered but for the jury's having had before
it the improper felony-murder charge. There is some strength to
this argument in both logic and law. Although Massachusetts
appellate courts have not squarely decided the issue, several
8
States have reversed involuntary manslaughter convictions in
such circumstances.
The defendant would rely on cases from these States, but,
as he conceded at argument, there is no State in which, in these
circumstances, the prejudice of a compromise verdict is
presumed. In New Jersey, for example, if a jury has deliberated
upon the guilt of an accused for a greater offense than is
warranted by the evidence, the defendant must demonstrate that
the verdict on the lesser included offense constituted an
"unjust result" if he is to prevail on appeal. State v. Wilder,
193 N.J. 398, 418 (2008).
Even assuming arguendo that the felony-murder charge here
should not have been submitted to the jury, and even were we to
follow those States that sometimes invalidate lesser included
offense convictions in some such circumstances, we cannot
conclude that the conviction of involuntary manslaughter in this
case was unjust. Because the defendant is unable to carry his
burden to meet such a standard, we conclude that his second
argument is without merit.
3. Jury instructions. a. Consciousness of guilt. The
defendant next challenges the trial judge's sua sponte
consciousness of guilt instruction, which the judge gave
unexpectedly, and as to which the defendant preserved his claim
9
of error by objecting at the first possible moment after the
instructions were finished.
The defendant relies on Commonwealth v. Groce, 25 Mass.
App. Ct. 327 (1988), to argue that the instruction conveyed to
the jury that the judge believed it was the defendant who fled.
Groce, however, involved a case in which there was no dispute
that the individual fleeing from the scene was the perpetrator
of the crime. The only issue at trial was identification. Id.
at 331-332. In those circumstances, the court concluded, the
consciousness of guilt instruction might "have conveyed the
notion to the jury that [the judge] believed that it was the
defendant who fled and, thus, that the victim's identification
testimony was accurate." Id. at 332. The consciousness of
guilt instruction there added nothing to the mix with respect to
guilt, since, if the defendant was the one who fled, he was also
guilty.
In this case, identification was also at issue. However,
there was no evidence from any witness to the fatal punch. This
case, therefore, is controlled by Commonwealth v. Vick, 454
Mass. 418 (2009): "Unlike Groce, the jury here could have found
that the defendant fled from the immediate scene of the [crime]
. . . without already having determined that the defendant was
the [perpetrator]." Id. at 427. Thus, even assuming the
instruction given in this case provided no greater emphasis than
10
the instruction in Groce that it was for the jury to determine
whether the defendant fled the scene, and that consciousness of
guilt was relevant only if they did so, "[t]he defendant's
flight from the immediate scene of the [crime] . . . could be
considered by the jury as consciousness of guilt" evidence.
Ibid.
b. Involuntary manslaughter. The defendant challenges two
portions of the jury instructions on involuntary manslaughter
that he claims are in error. At one point the judge instructed
the jury:
"So if the Commonwealth proves to you each of those
three elements beyond a reasonable doubt, your verdict on
involuntary manslaughter under a theory of wanton and
reckless conduct would be guilty. If the Commonwealth
fails to prove one or more of those elements to you beyond
a reasonable doubt, under that theory of involuntary
manslaughter, your verdict would be not guilty."
The defendant argues that the use of the word "would" in the two
places it appears in this quotation were error.
As to the second use of "would," the defendant argues that
the jury should have been commanded that they "must not return a
verdict of guilty," and that "would" suggests some wiggle room.
To be sure, the jury instruction should be clear at every point
that in the absence of a finding that each element of an offense
is proved beyond a reasonable doubt, it is mandatory that the
jury verdict be one of not guilty. Because this claimed error
was not objected to, we review the claim to determine whether
11
any error created a substantial risk of a miscarriage of
justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
Reading the jury instructions as a whole, in which the judge
said four times that if there was a reasonable doubt, the
defendant "must be acquitted," we cannot conclude that the
judge's use of the word "would" in one portion of the
instruction created a substantial risk of a miscarriage of
justice.
As to the first use of the word "would," the defendant
argues that the judge should have instructed that the jury
verdict "should [be] guilty." We see no error. Moreover, given
the defendant's argument that "would" is insufficiently
directive, the judge's instruction here was more beneficial to
the defendant than what he suggests was proper.
4. Wainer Caba's grand jury testimony. The judge
determined that Wainer Caba, a witness before the grand jury and
at trial, was, at trial, feigning lack of memory. Consequently,
consistent with Mass. G. Evid. § 801(d)(1)(A) (2014), Caba's
grand jury testimony2 was admitted substantively as inconsistent
with his claim of lack of memory. See Commonwealth v. Sineiro,
432 Mass. 735, 745 & n.12 (2000).
2
In pertinent part, Caba testified at the grand jury that
he saw the defendant carrying a small brown delivery bag with
something in it.
12
The defendant now argues that the grand jury testimony was
coerced.3 The defendant did not object at trial to the admission
of the grand jury testimony on the ground that the witness was
coerced. He raised coercion only in relation to the witness's
right to counsel, see infra. Consequently, in order to prevail
on this claim, he must demonstrate both that the grand jury
testimony was indeed coerced, and that admission of the
testimony created a substantial risk of a miscarriage of
justice. See Commonwealth v. Alphas, 430 Mass. at 13. And,
because the issue was not raised before the judge, he made no
finding with respect to coercion. Thus, in order to reverse on
this ground, the defendant must show that a finding that the
witness was not coerced would have been clear error.
The record here is inadequate to support such a conclusion.
In particular, we are in no position to judge the credibility of
the witness's testimony to the extent it may have indicated
coercion. The defendant's claim must therefore fail, at least
in the posture in which it was presented in this direct appeal.
As part of his argument concerning the grand jury
testimony, the defendant notes that Caba was not provided
counsel at the grand jury stage of these proceedings. The
3
Specifically, the defendant argues that statements Caba
made during police interviews were coerced, and that Caba felt
his grand jury testimony needed to be consistent with the
statements he had made to the police.
13
argument that Caba's lack of counsel introduced error is
premised on a conclusion that the grand jury testimony was
coerced. The defendant argues that the presence of counsel
might have assisted Caba at the point at which he was allegedly
coerced. Because we cannot conclude that a factual finding of
coercion was compelled by the evidence, this argument also is
unavailing.
The defendant also argues that had Caba been provided
counsel at trial, "he may have benefitted from the advice
counsel could offer him regarding how to explain and convey his
predicament to the jury." However, even if in light of the
inconsistent testimony at the grand jury and at trial, the
witness's Fifth Amendment rights were at issue such that the
judge ought to have appointed counsel for him at trial, see,
e.g., Commonwealth v. Hesketh, 386 Mass. 153, 155 (1982),
something we do not decide, the defendant lacks standing to
assert the witness's right in this regard. See Commonwealth v.
Peloquin, 30 Mass. App. Ct. 960, 961 n.1 (1991) ("The defendant
argues that had the witness been advised of his right to
counsel, he might have elected not to testify. Aside from the
purely speculative nature of the claim, the defendant has no
standing to assert the claim, because [the witness's] right to
counsel is his alone to assert").
Judgments affirmed.