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SJC-12496
COMMONWEALTH vs. JAMESON PHUON.
Middlesex. May 8, 2020. - October 19, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.1
Homicide. Firearms. Jury and Jurors. Practice, Criminal, Jury
and jurors, Verdict, Duplicative convictions, Lesser
included offense, Capital case.
Indictments found and returned in the Superior Court
Department on February 24, 2011.
The cases were tried before Heidi E. Brieger, J.
Theodore F. Riordan (Deborah Bates Riordan also present)
for the defendant.
Timothy Ferriter, Assistant District Attorney, for the
Commonwealth.
BUDD, J. Just after midnight on January 1, 2011, shots
were fired at a New Year's Eve house party. The defendant was
convicted of murder in the first degree of one victim, as well
1 Chief Justice Gants participated in the deliberation on
this case prior to his death.
2
as on twenty-four other indictments that included various
firearms charges and seventeen charges related to the injuries
he inflicted on several other victims.
On appeal, the defendant argues that he is entitled to a
new trial on the murder charge because the verdict slip
indicated that the jury found him guilty of both murder in the
first degree and murder in the second degree. He also argues
that his two convictions of possession of ammunition must be
dismissed because they are lesser included offenses of his
convictions of possession of a loaded firearm. Finally, the
defendant seeks to have his murder conviction reduced or to be
granted a new trial pursuant to G. L. c. 278, § 33E. We affirm
the defendant's conviction of murder in the first degree and
decline to exercise our extraordinary power under § 33E.
However, we dismiss the convictions of possession of ammunition
as duplicative of the convictions of possession of a loaded
firearm.
Background. We summarize the facts as the jury could have
found them. Late at night on December 31, 2010, the defendant
attended a house party with two friends, Sothy Voeun and
Sovanrathanak Binn.2 Soon after their arrival, the defendant and
Voeun had a gang-related disagreement with one or two of the
2 A fourth individual who was with the group remained in the
vehicle in which they arrived.
3
partygoers, which became physical and continued outside. Voeun
retrieved a rifle from the vehicle in which they arrived, and he
and the defendant took turns shooting it into the air. The
group then left the area and drove to the home of Naroht Chan,
where they obtained a second rifle; they then returned to the
party. Voeun and the defendant, who was wearing a face
covering, walked to the door, each carrying a rifle. The
defendant kicked the door in, entered, and yelled, "Don't move
or I'll shoot." He pushed a table toward Corinna Oeur. When
Oeur pushed the table toward the defendant, he shot her in the
torso. The defendant also shot seven others in the room before
leaving the scene. As the group drove away, the defendant said,
"I think we might have got them" and "I think I just killed
somebody."
Police responded to the scene at approximately 1:25 A.M.
Oeur, who was found unresponsive, succumbed to gunshot wounds to
her heart and lungs. Others at the party suffered from various
serious, but nonfatal, injuries. A search of Chan's home
yielded two rifles, one of which was fitted with a high capacity
magazine. Casings recovered from the scene matched casings that
were discharged from each firearm.
At trial, the defendant argued that he had been
misidentified. In support of that theory, he presented an
4
expert on eyewitness identification who testified as to factors
that may render identification witnesses unreliable.
Discussion. 1. Verdict on murder charge. At the
conclusion of their deliberations, the jury announced and
affirmed in open court that the defendant was guilty of murder
in the first degree on the theories of deliberate premeditation
and felony-murder. The verdict subsequently was recorded.
While polling the jury as to the murder conviction at the
request of trial counsel, the clerk noticed that the verdict
slip indicated that the defendant was guilty of murder in the
first degree as well as murder in the second degree, so the
clerk brought the matter to the judge's attention.
In conferring with both parties outside the presence of the
jury, the judge stated that the verdict was not inconsistent
because the finding of guilty of murder in the second degree was
"simply a lesser included guilty finding that is subsumed by the
guilty in the first degree." However, she proposed to have the
clerk continue to poll the jury to ask "how he or she finds on
those counts." After speaking with the defendant, trial counsel
waived further polling. The jury thereafter were discharged.
The defendant now argues that he should be given the
benefit of what he calls an "ambiguity" in the verdict slip and
that he is entitled either to a new trial or to a reduction in
the murder conviction to murder in the second degree. We note
5
that the defendant, who expressly declined the judge's offer to
make inquiry of the jury regarding the verdict slip, contends on
appeal that the judge should nevertheless have done so. We
agree that the better practice would have been to make inquiry
of the jury prior to discharging them, either by polling or
sending them back to the jury room to resolve any questions
about the verdict slip, if for no other reason than to foreclose
the possibility of the issue resurfacing on appeal.3
However, as the defendant waived his opportunity to poll or
otherwise request that the jury clarify their verdict, we
evaluate his claim to determine whether there is a substantial
likelihood of a miscarriage of justice. See Commonwealth v.
Fowler, 431 Mass. 30, 34 (2000); Commonwealth v. Lawson, 425
Mass. 528, 531 (1997). We conclude that the answer is no.
3 An instruction explicitly stating that the jury need not
consider the charge of murder in the second degree if they found
the defendant guilty of murder in the first degree might have
helped to avoid any misunderstanding the jury may have had in
this regard. The Model Jury Instructions on Homicide 43 (2018)
provide: "If you are unable to agree unanimously that the
Commonwealth has met its burden to prove beyond a reasonable
doubt any [either] of these theories of first degree murder, you
shall consider whether the Commonwealth has proved the defendant
guilty beyond a reasonable doubt of murder in the second
degree." We note, however, that in explaining the different
theories and degrees of murder, the judge correctly instructed
the jury that they had the duty to find the defendant guilty of
the most serious offense that the Commonwealth proved beyond a
reasonable doubt. Later, after discussing each theory of murder
in the first degree listed on the verdict slip, the judge stated
that murder in the second degree was a lesser included offense
that was "another possibility."
6
The defendant relies on Commonwealth v. Dunn, 478 Mass.
125, 137 (2017), to argue that because the jury were instructed
to find him guilty of "the most serious offense that the
Commonwealth has proved beyond a reasonable doubt," the fact
that the jury indicated that the defendant was guilty of murder
in the second degree suggests that that was the highest offense
proved. This argument is unavailing.
The jury were properly instructed on each of the three
theories of murder in the first degree: deliberate
premeditation, extreme atrocity or cruelty, and felony-murder.
At the conclusion of their deliberations, they specified on the
verdict slip that the defendant was guilty of murder in the
first degree on two of the three theories presented to them:
deliberate premeditation and felony-murder. The mere fact that
the jury additionally marked an "X" next to "Guilty of Lesser
Included Offense of Murder 2nd Degree" on the verdict slip in no
way demonstrates that murder in the second degree was the
highest degree of guilt they found. To the contrary, it is
clear from the verdict slip that the jury determined that murder
in the first degree (by way of two separate theories) was the
most serious murder offense that the Commonwealth proved beyond
a reasonable doubt. It appears that the jury simply found the
elements that comprise murder in the second degree in addition
to having found the elements of murder in the first degree on
7
the theories of premeditation and felony-murder,4 or
alternatively, they did not find the defendant guilty of murder
in the first degree on the theory of extreme atrocity or cruelty
so instead found him guilty of murder in the second degree as to
this theory.5
Moreover, in the judge's instructions, the only underlying
felony presented to the jury for consideration with regard to
the theory of felony-murder was armed home invasion, which is
punishable by life imprisonment. By finding the defendant
4 We note that, here, the elements of murder in the first
degree on a theory of deliberate premeditation coincide with the
elements of murder in the second degree. The elements of the
murder in the first degree on a theory of deliberate
premeditation are that (1) the defendant caused the death of the
victim, (2) the defendant intended to kill the victim, and (3)
the defendant acted with deliberate premeditation. The elements
of murder in the second degree are that (1) the defendant caused
the death of the victim and (2) the defendant intended to kill
the victim, to cause grievous bodily harm to the victim, or to
do an act which, in the circumstances known to the defendant, a
reasonable person would have known created a plain and strong
likelihood that death would result. Here, by marking that the
defendant was guilty of murder in the first degree on a theory
of deliberate premeditation, it is clear that the jury plainly
found all three elements that comprise murder in the first
degree on that theory. As the first two of those three elements
comprise murder in the second degree, the jury appear to have
indicated that on the verdict slip as well.
5 The elements of the murder in the first degree on a theory
of extreme atrocity or cruelty are that (1) the defendant caused
the death of the victim; (2) the defendant intended to cause
grievous bodily harm to the victim, or to do an act which, in
the circumstances known to the defendant, a reasonable person
would have known created a plain and strong likelihood that
death would result; and (3) the defendant acted with extreme
atrocity or cruelty.
8
guilty on a theory of felony-murder, where this life felony was
the only underlying felony on which such a conviction could be
premised, the jury had to have found the defendant guilty of
murder in the first degree. G. L. c. 265, § 1.
Even assuming, as the defendant argues, that the verdict
slip did not clearly indicate the will of the jury, the verdict
announced by the foreperson in open court and affirmed
unanimously by the jury removed any doubt that it was the jury's
intention to convict the defendant of murder in the first degree
on the theories of deliberate premeditation and felony-murder.
See Dunn, 478 Mass. at 136, quoting Commonwealth v. Harris, 23
Mass. App. Ct. 687, 692 (1987) ("The only verdict which can be
received and regarded, as a complete and valid verdict of a
jury, upon which a judgment can be rendered, is an open and
public verdict given in and assented to in open court, as the
unanimous act of the jury, and affirmed and entered of record,
in the presence and under the sanction of the court"); Lawrence
v. Stearns, 11 Pick. 501, 502 (1831).
Thus, although it is true that "[i]f there were any
reasonable possibility that the jury intended the lesser
verdict[] we would give the defendant the benefit of the lesser
conviction[,] there is no such reasonable possibility here."
Dunn, 478 Mass. at 137. We therefore decline to disturb the
verdict of murder in the first degree.
9
2. Duplicative convictions. The jury also found the
defendant guilty on each of the other indictments, including two
counts of unlawful possession of a loaded firearm, and two
counts of unlawful possession of ammunition. Both parties agree
that the defendant was convicted of both possession of a loaded
firearm and possession of the ammunition contained within it,
making the latter convictions duplicative. At the conclusion of
the trial, the convictions of possession of ammunition were
placed on file without objection from the defendant. However,
there is a possibility, albeit slim, that the defendant could be
sentenced on those convictions. This would subject him to being
punished a second time for possession of the same ammunition.
Because such an outcome would violate the principles of double
jeopardy, we hereby dismiss the two convictions of possession of
ammunition. See Commonwealth v. Johnson, 461 Mass. 44, 54
(2011).
3. Relief pursuant to G. L. c. 278, § 33E. Finally, the
defendant asks us to exercise our extraordinary power under
G. L. c. 278, § 33E. Upon review of the entire record, we
discern no error that resulted in a substantial likelihood of a
miscarriage of justice. We therefore decline to order a new
trial or to reduce the degree of guilt under § 33E.
10
Conclusion. For the foregoing reasons, the defendant's
convictions are affirmed, with the exception of the convictions
of possession of ammunition, which are hereby dismissed.
So ordered.