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SJC-11669
COMMONWEALTH vs. TIMOTHY BROWN.
Middlesex. March 10, 2017. - September 20, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd,
& Cypher, JJ.1
Homicide. Felony-Murder Rule. Home Invasion. Robbery.
Firearms. Joint Enterprise. Accessory and Principal.
Practice, Criminal, Capital case, Instructions to jury,
Argument by prosecutor, Opening statement, Jury and jurors,
Voir dire, Presumptions and burden of proof. Evidence,
Joint venturer, Prior misconduct.
Indictments found and returned in the Superior Court
Department on December 22, 2009.
The cases were tried before Sandra L. Hamlin, J.
David H. Mirsky for the defendant.
Melissa Weisgold Johnsen, Assistant District Attorney, for
the Commonwealth.
GAZIANO, J. We address, in this opinion, the scope of
criminal liability under the common-law felony-murder rule. The
1
Justice Hines participated in the deliberation on this
case prior to her retirement.
2
charges stem from an attempted armed robbery and home invasion
into a Lowell townhouse shared by Hector and Tony Delgado. Two
armed gunmen fatally shot the brothers during the botched
robbery. The defendant was not present at the scene. The
Commonwealth alleged that the defendant was liable as an
accomplice to felony-murder because he supplied one of the
gunmen with a pistol and provided hooded sweatshirts to the
intruders to help them conceal their identities. A Superior
Court jury convicted the defendant of two counts of felony-
murder in the first degree based on the predicate felonies of an
attempted commission of armed robbery, home invasion, unlawful
possession of a firearm, and unlawful possession of ammunition.
The defendant raises the following claims on appeal: (1)
the Commonwealth failed to produce sufficient evidence to prove
that he was a knowing participant in the felony-murders; (2) the
judge provided erroneous instructions on shared intent and
accomplice liability; (3) portions of the prosecutor's opening
statement and closing argument were improper; (4) the judge
should have excluded prejudicial evidence of prior misconduct;
(5) the judge asked improper voir dire questions of potential
jurors; and (6) we should abolish the felony-murder rule. The
defendant also asks us to order a new trial under our
extraordinary authority pursuant to G. L. c. 278, § 33E.
3
We conclude that the Commonwealth introduced sufficient
evidence to prove that the defendant knowingly participated in
the underlying felonies and, therefore, was an accomplice to
felony-murder. We conclude also that the defendant's other
challenges do not raise error warranting reversal or a new trial
as to any of the convictions. Nonetheless, in the circumstances
of this case, we are convinced that, pursuant to our authority
under G. L. c. 278, § 33E, the interests of justice require that
the degree of guilt be reduced to that of murder in the second
degree.
As to whether we should abolish the common-law felony-
murder rule, a unanimous court concludes that the felony-murder
rule is constitutional. However, a majority of Justices,
through the concurrence of Chief Justice Gants, conclude that
the scope of felony-murder liability should be prospectively
narrowed, and hold that, in trials that commence after the date
of the opinion in this case, a defendant may not be convicted of
murder without proof of one of the three prongs of malice. As a
result, in the future, felony-murder is no longer an independent
theory of liability for murder. Rather, felony-murder is
limited to its statutory role under G. L. c. 265, § 1, as an
aggravating element of murder, permitting a jury to find a
defendant guilty of murder in the first degree where the murder
was committed in the course of a felony punishable by life
4
imprisonment even if it was not committed with deliberate
premeditation or with extreme atrocity or cruelty. Because the
majority holding as to common-law felony-murder liability is
prospective in effect, it does not affect the judgment reached
in this case. Because I disagree with that holding, I write
separately in a concurrence to explain my reasoning.
1. Background. Because the defendant challenges the
sufficiency of the evidence of the extent of his involvement in
the armed home invasion, and his shared intent to commit that
crime, we recite the facts the jury could have found in some
detail.
a. Facts. On the evening of October 22, 2009, the
defendant was a passenger in a green Honda Civic automobile that
was being driven around the Pawtucketville section of Lowell.
The other occupants of the vehicle were his friends Ariel
Hernandez, Giovanni Hill, and Darien Doby. Hernandez was the
driver. Hill was in the front passenger seat, and the defendant
and Doby shared the rear passenger seat. Hernandez drove past
two men walking on the street and raised the possibility of
robbing them. The passengers convinced Hernandez not to do so.
A short time later, Hill and Hernandez noticed two women
walking down the street. Hernandez pulled into a side street
and parked. Hill and Hernandez got out of the vehicle and
Hernandez removed a firearm from the trunk. The two rounded the
5
corner and confronted the women while the defendant and Doby
waited in the vehicle. Hill stood and watched from a few feet
away as Hernandez, gun in hand, grabbed their purses. The two
men returned to the vehicle, and Hernandez drove away, with the
purses and the handgun in his lap. He stopped at a friend's
house to exchange the green hooded sweatshirt he had been
wearing for a black sweatshirt without a hood.
The defendant, Doby, and Hill left the friend's house,
while Hernandez stayed behind. The four men later met at the
defendant's one-bedroom apartment. Hernandez stashed the
handgun he had used in the robbery (a nine millimeter pistol) in
a kitchen cabinet above the refrigerator. He rifled through the
purses, pulling out cash, driver's licenses, and automated
teller machine (ATM) cards. Hernandez found what appeared to be
a passcode for one of the ATM cards written on a scrap of paper,
and sent Hill to a bank to attempt to withdraw money with the
card. Before he left, Hill borrowed the defendant's black
sweatshirt so he could change out of the jacket he had worn
during the robbery. When he returned, Hill reported that he had
been unsuccessful in withdrawing any money.
Later, at approximately 12:15 A.M., two cousins, Jamal and
Karon McDougal, visited the defendant's apartment.2 They were
2
Because they share a last name, we refer to Jamal and
Karon McDougal by their first names.
6
joined by one of their friends, Joshua Silva. While gathered in
the kitchen with the defendant, Jamal asked Hernandez if he
wanted to participate in robbing someone who owed money to one
of Jamal's friends. Karon predicted that the robbery would be
"pretty easy." He warned the others, however, that they were
going to rob two "pretty big guys" who worked in bars.3
Hernandez agreed to participate in the robbery. Silva joined
them as the getaway driver.
Once Silva agreed to participate, Hernandez urged, "If
we're going to do it, let's go do it now." Hernandez retrieved
his gun from the kitchen cabinet, looked it over, and tucked it
inside his waistband. Still wearing the hoodless black
sweatshirt he had changed into after the earlier robbery,
Hernandez asked the defendant for a hooded sweatshirt so that he
could "hide his face." The defendant provided Hernandez with a
hooded sweatshirt with a front zipper. Hernandez complained
that the zipper was broken and that some part of his shirt would
be visible. The defendant then gave Hernandez a black and red
pullover-style hooded sweatshirt with a white Red Sox "B" logo
on the front. Jamal and Karon also borrowed hooded sweatshirts
3
In addition to his full-time job, Hector, one of the
victims, worked part time as a doorman at a local bar. Tony,
the other victim, managed that bar, and supplemented his income
by selling small "dime bag" quantities of marijuana from the
townhouse in Lowell where the brothers and their housemates
lived.
7
from the defendant.
Before leaving, Jamal asked to borrow the defendant's
"burner" (gun). At first, the defendant hesitated, stating his
concern that something might happen to his gun. Hernandez and
Karon then urged the defendant to allow Jamal to borrow the gun,
promising that "nothing's going to happen to it." The defendant
eventually gave Jamal a .380 pistol that had been stored
underneath his bed.
Jamal, Karon, Hernandez, and Silva left the defendant's
apartment and drove in Silva's Toyota Camry automobile to the
victims' townhouse. Silva drove, and Jamal gave directions.
After Silva parked on a nearby side street, Jamal, Karon, and
Hernandez got out and approached the townhouse, while Silva
waited in the vehicle. Shortly after 1 A.M., the occupants of
the townhouse heard loud banging on the front door. From a
fourth-floor window, Tony called out, "Who's there?" A voice
that sounded female responded "Nicole," or "Nicki." Tony went
downstairs and opened the front door. His housemates heard a
scuffle at the bottom of the stairs near the door, then Jamal
and Hernandez chased Tony up the stairs into the second-floor
living room.
A visitor had been sleeping on the living room couch. He
saw Jamal threaten Tony with a gun, demanding, "Where's
everything?" Tony responded that "[a]ll [he] see[s] is dimes."
8
The visitor was unable to identify Jamal, whose face was
obscured by a hooded sweatshirt. Hector and one of his
roommates, Brian Staples, headed downstairs from their third-
floor bedrooms and entered the living room. At that point,
Jamal had Tony in a headlock and was pointing the gun at his
head.4 Hernandez rushed toward Staples, brandishing a gun, and
ordered him upstairs. Staples and Hector ran upstairs to hide.
Tony managed to break free from Jamal and also ran up the
stairs. Jamal and Hernandez followed him.
From his hiding place, Staples heard Hector's door being
kicked in, followed by an argument, and then gunshots. Once the
shooting stopped, Hector was found lying face up on his bed,
gasping for air. He had been shot three times and shortly
thereafter died of multiple gunshot wounds. Tony, fatally shot
in the abdomen, managed to stagger to the fourth floor, where he
was treated at the scene before he died. Police recovered five
nine millimeter cartridge casings from Hector's bedroom.
After the gunshots, Jamal and Hernandez ran outside,
cheering and exchanging "high fives." They met up with Karon
and Silva, and drove back to the defendant's apartment. En
4
Jamal and Hernandez told Silva, the getaway driver, that
Staples had been unable to see the face of the person who
grabbed Tony because the assailant "had the hood on." Staples,
however, had been able to see a portion of the other intruder's
face. He described the individual as dark skinned with a
scruffy goatee, and later identified Hernandez from a
photographic array.
9
route to the apartment, Jamal and Hernandez informed Karon that
they had been unable to steal anything. Jamal remarked that
Hernandez was a good shot, and Hernandez responded, "Yeah, once
I seen them jump on you, I just started shooting." Jamal
returned the defendant's gun to him. Hernandez asked the
defendant if he could leave his own gun at the defendant's
apartment. When the defendant said no, Hernandez gave the gun
to Hill, and told him to put it in the trunk of the Honda Civic.
Jamal, Karon, and Hernandez removed the borrowed sweatshirts and
left them in the defendant's living room.
Within an hour of the shootings, Lowell police spotted
Hernandez driving the green Honda Civic that had been used in
the earlier robbery. They stopped the vehicle, arrested
Hernandez and Hill, and found the gun Hernandez had used in the
shooting hidden in the trunk.
Detectives interviewed the defendant on October 24 and
25, 2009. He initially told police that he had purchased a .380
handgun "for protection," which he kept under his mattress.
Eventually, the defendant admitted to having given this gun to
Hernandez and the other men on the evening of the shootings.
The defendant first said that he did not know what Hernandez and
the other men were going to do with the gun. Eventually he
stated that he believed they were going to rob someone, based on
conversations that he overheard inside his apartment and the
10
fact that Hernandez had robbed two women earlier that evening.
b. Prior proceedings. The defendant was indicted on two
counts charging murder in the first degree in the deaths of
Hector and Tony Delgado, home invasion, unlawful possession of a
firearm, and unlawful possession of ammunition. The defendant
was tried before a Superior Court jury on the theory of felony-
murder with the underlying offenses of attempted armed robbery
and home invasion as the predicate felonies. The jury convicted
the defendant on all charges.
2. Discussion. The defendant's primary argument on appeal
is that the Commonwealth failed to produce sufficient evidence
to prove that he participated in the underlying felonies, i.e.,
that he shared the intent of the other participants to commit an
armed robbery. He also argues that the judge erroneously
instructed the jury on the issues of shared intent and
accomplice liability; portions of the prosecutor's opening
statement and closing argument were improper; the judge abused
her discretion by allowing the introduction of evidence of
uncharged misconduct; and, during voir dire, the judge asked
potential jurors an impermissible question. The defendant
contends also that this court should abolish the felony-murder
rule. In addition, he asks us to exercise our extraordinary
authority under G. L. c. 278, § 33E, to reverse the murder
convictions as against the weight of evidence. We address each
11
argument in turn.
a. Sufficiency of the evidence. In reviewing the denial
of a motion for a required finding of not guilty, we apply the
familiar Latimore standard. See Commonwealth v. Latimore, 378
Mass. 671, 677-678 (1979). "[The] question is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Id.
at 677, quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Under this standard of review, we resolve issues of witness
credibility in favor of the Commonwealth. Commonwealth v.
Dilone, 385 Mass. 281, 286 (1982). In determining whether a
reasonable jury could find each element of the crime charged, we
also do not weigh the supporting evidence against conflicting
evidence. Commonwealth v. Lao, 443 Mass. 770, 779 (2005).
To convict the defendant of felony-murder on a theory of
accomplice liability, the Commonwealth was required to prove
beyond a reasonable doubt that the defendant knowingly
participated in the commission of one of the underlying
felonies, alone or with others, with the intent required for
that offense.5 Commonwealth v. Zanetti, 454 Mass. 449, 466
5
As for the substantive offenses, to support a finding of
guilt of armed robbery requires proof that the defendant (or an
accomplice) while armed with a dangerous weapon assaulted the
victim and took money or property from the victim with the
12
(2009). See Commonwealth v. Silva, 471 Mass. 610, 621 (2015)
(Commonwealth required to prove defendant's "knowing
participation in some manner in the commission of the offense"
together with shared intent); Commonwealth v. Akara, 465 Mass.
245, 253 (2013) (court considers whether defendant actively
participated in events leading to victims' deaths); Marshall v.
Commonwealth, 463 Mass. 529, 536-537 (2012) (conduct that
historically had been described as accessory before fact
"plainly falls under the rubric of accomplice liability"). In
this case, where the predicate felonies were attempted armed
robbery and armed home invasion, the Commonwealth also was
required to prove that the defendant knew that one of his
accomplices possessed a firearm. Commonwealth v. Garcia, 470
Mass. 24, 31 (2014).
Knowing participation in a criminal offense "may take any
of several forms," and includes providing "aid or assistance in
committing the crime." Zanetti, 454 Mass. at 470 (Appendix).
To establish guilt on a theory of accomplice liability, the
intent (or shared intent) to steal it. Commonwealth v.
Williams, 475 Mass. 705, 710 (2016). An attempt is defined as:
(1) an intent to commit the underlying crime; (2) an overt act
towards its commission, and (3) nonachievement of the
substantive crime. Commonwealth v. Van Bell, 455 Mass. 408, 412
(2009). To prove armed home invasion, the Commonwealth must
establish that the defendant (or his accomplice) entered a
dwelling, while armed with a dangerous weapon, and "use[d] force
or threaten[ed] the imminent use of force upon any person within
such dwelling." Commonwealth v. Bois, 476 Mass. 15, 29 (2016),
quoting G. L. c. 265, § 18C.
13
Commonwealth is not required to prove that a defendant was
physically present at the scene of the offense. Commonwealth v.
Ortiz, 424 Mass. 853, 858-859 (1997). A defendant may be
convicted as a coventurer when he or she is not present at the
scene of a crime "so long as the jury [find] [that the
defendant] had actually associated [himself or herself] with the
criminal venture and assisted in making it a success."
Commonwealth v. Silanskas, 433 Mass. 678, 690 n.13 (2001),
quoting Ortiz, supra. See Commonwealth v. Hanright, 466 Mass.
303, 310 (2013) ("[C]omplicity in the underlying felony is
sufficient to establish guilt of [felony-murder] if the homicide
followed naturally and probably from the carrying out of the
joint enterprise" [citation omitted]); Commonwealth v. Benitez,
464 Mass. 686, 690 n.6 (2013) ("a person need not be physically
present at the scene of the crime in order to participate as a
joint venturer").
We do not agree with the defendant's contention that the
evidence, at best, established that he was present inside an
apartment where others planned a robbery, and that his mere
"acquiescence in a request to produce clothing or a firearm does
not confer joint venture liability." There was sufficient
evidence from which a reasonable jury could have found beyond a
reasonable doubt that the defendant knowingly participated in
the predicate felonies. He was present in his apartment when
14
Jamal and Karon openly solicited others to help rob "the pretty
big" "Puerto Rican guy." Hernandez agreed to join the robbery,
announced that he would use his own gun, and retrieved it from
its hiding place inside the defendant's kitchen cabinet. Jamal
then asked to borrow the defendant's gun. The defendant
expressed concern over the possibility that something would
happen to it. Karon and Hernandez urged the defendant to lend
the gun to Jamal, assuring him, "Nothing is going to happen to
it." The defendant agreed and gave Jamal the gun.
In his statement to police, the defendant admitted that he
gave the gun to Hernandez and the other men knowing that it was
going to be used in a robbery. See Benitez, 464 Mass. at 690
(act of providing accomplice with gun supports finding that
defendant knowingly and actively participated in armed robbery);
Commonwealth v. Melton, 436 Mass. 291, 301 (2002) (defendant's
participation in joint venture supported by evidence that he
supplied firearm to shooter). See also Commonwealth v. Gunter,
427 Mass. 259, 261, 265 (1998) (defendant who remained in
vehicle while his accomplices entered apartment and robbed rival
drug dealers actively participated in felony-murder). The jury
also reasonably could have found that the defendant gave hooded
sweatshirts to his accomplices to help them avoid detection.
Prior to the robbery, Hernandez asked the defendant for a hooded
sweatshirt so that he could "hide his face." The defendant
15
provided Hernandez with a hooded sweatshirt with a front zipper.
When Hernandez complained that the zipper was broken, and that
some part of his shirt would be visible, the defendant gave him
a pullover-style hooded sweatshirt. Jamal and Karon also
borrowed hooded sweatshirts from the defendant. After the
robbery, Hernandez, Karon, and Jamal drove directly to the
defendant's apartment and returned the sweatshirts to him rather
than wearing them in public.
It is also reasonable to infer that the instruments
supplied by the defendant played an important role in the
underlying crimes of attempted armed robbery and home invasion.
Jamal, armed with the defendant's pistol, forced his way into
the Delgados' townhouse. See Commonwealth v. Netto, 438 Mass.
686, 702-703 (2003) (circumstances may dictate that weapon is
necessary to overcome anticipated resistance from victims).
Once inside, Jamal used the gun to threaten Tony and demand
money and drugs. Further, the hooded sweatshirts provided by
the defendant hindered the ability of the other occupants of the
townhouse to identify the intruders.
We conclude, therefore, that the jury reasonably could have
found that the defendant was an active participant in the
commission of the underlying felonies.
b. Jury instructions. The defendant contends that three
of the judge's instructions concerning shared intent and
16
accomplice liability were erroneous. First, he argues that the
judge's instruction on intent and shared intent shifted the
burden of proof by imposing a "mandatory rebuttable
presumption," which instructed the jury that the defendant's
conduct "necessarily indicated [his] knowledge and support of
every aspect of criminal conduct that occurred." Second, he
argues that it was error for the judge to refer to the theory of
accomplice liability while instructing on the substantive felony
charges. Third, he argues that the judge misstated the burden
of proof. Because there was no objection to these instructions,
we review these claims to determine whether there was error and,
if so, whether it created a substantial likelihood of a
miscarriage of justice. Commonwealth v. Wright, 411 Mass. 678,
681 (1992).
We turn first to the defendant's argument that the
instruction on intent impermissibly shifted the Commonwealth's
burden of proof to him. The defendant characterizes the
following jury instructions as having created an impermissible
"mandatory rebuttable presumption":
"[Y]ou may determine the defendant's intent from any
statement or act committed or omitted and from all the
other circumstances that indicate a state of mind provided
first you find that any or all such circumstances occurred.
"Now, the jury may but not need necessarily infer from
the conduct of a person that he intended the natural and
probabl[e] consequences of his own acts.
17
". . .
"[T]he Commonwealth must also prove beyond a
reasonable doubt that at the time the defendant knowingly
participated in the commission of the crime and, as I've
indicated, the felonies involved are attempted armed
robbery and home invasion, that he possessed or shared the
intent required for that crime. And when I define the
essential elements, I'm going to be telling you what the
intent is. You're permitted but not required to infer the
defendant's mental state or intent, from his knowledge of
the circumstances and any subsequent participation in the
crime. The inferences you draw must be reasonable and you
may rely upon your experience and common sense in
determining the defendant's knowledge or intent."
The due process clause of the Fourteenth Amendment to the
United States Constitution requires the Commonwealth to prove
every essential element of the offense beyond a reasonable
doubt. Matter of Winship, 397 U.S. 358, 364 (1970).
"Instructions to the jury that would lead them to believe
otherwise are constitutional error." Commonwealth v. Cruz, 456
Mass. 741, 752 (2010), citing Sandstrom v. Montana, 442 U.S.
510, 521 (1979). See Francis v. Franklin, 471 U.S. 307, 313
(1985) (due process clause prohibits use of evidentiary
presumption that relieves government of its burden). An
instruction that the jury reasonably could have interpreted as a
mandatory presumption violates due process and cannot stand.
See DeJoinville v. Commonwealth, 381 Mass. 246, 252 (1980). By
contrast, there is no constitutional infirmity where a jury
instruction creates only a permissive inference. Id. at 253.
See Commonwealth v. Ely, 388 Mass. 69, 76 (1983) (permissive
18
inference that allows jury to infer elemental fact from proof by
prosecutor of another fact does not shift burden of proof).
As the United States Supreme Court noted in Francis, 471
U.S. at 313, the analysis is relatively straightforward -- a
reviewing court must determine whether the challenged portion of
an instruction created an unconstitutional mandatory presumption
or merely a permissive inference. In this case, we conclude
that the instructions on intent created permissive inferences.
The judge did not instruct the jury that they were to presume
that certain facts were proved, or that they were required to
reach a particular conclusion. Compare id. at 316 (instruction
that person of sound mind and discretion is presumed to intend
natural and probable consequences of his or her actions is
mandatory presumption "cast in the language of command");
Commonwealth v. Nolin, 448 Mass. 207, 217-218 (2007)
(instruction that person is presumed to intend natural and
probable consequences of his or her acts improperly shifts
burden of proof to defendant).
To the contrary, here, rather than being "cast in the
language of command," the challenged instructions were
permissive. The judge instructed that intent and knowledge
ordinarily cannot be proved by direct evidence, and then added,
"[Y]ou may determine the defendant's intent from any statement
or act committed or omitted and from all the other circumstances
19
that indicate a state of mind provided first you find that any
or all such circumstances occurred" (emphasis supplied). She
then continued, "[T]he jury may but not need necessarily infer
from the conduct of a person that he intended the natural and
probabl[e] consequences of his own acts" (emphasis supplied).
The judge instructed as follows on shared intent: "You're
permitted but not required to infer the defendant's mental state
or intent, from his knowledge of the circumstances and any
subsequent participation in the crime" (emphasis supplied). See
Hill v. Maloney, 927 F.2d 646, 651 (1st Cir. 1990) (words "you
may infer" clearly indicated that inferences of malice and
intent were permissive).
Such permissive intent instructions do not run up against a
defendant's right to due process. See Commonwealth v. Van
Winkle, 443 Mass. 230, 239 (2005) (no error in instruction that
"jury may infer, though it is not required to do so, that a
person intends the natural and probable consequences of an act
that is knowingly done"); Ely, 388 Mass. at 76 (instruction that
permits, but does not require, jury to infer intent does not
violate due process). Indeed, the inferences on permissive
intent also are included in the model jury instructions on
homicide, explaining shared intent: "You are permitted, but not
required, to infer the defendant's mental state or intent from
his [or her] knowledge of the circumstances or any subsequent
20
participation in the crime." Model Jury Instructions on
Homicide 15 (2013). A similar instruction is included in the
instruction concerning the intentional use of a dangerous
weapon: "As a general rule, you are permitted (but not
required) to infer that a person who intentionally uses a
dangerous weapon on another person intends to kill that person
. . . ." Id. at 92.
The defendant argues that the judge's instructions on
attempted armed robbery and home invasion were erroneous because
she improperly linked the phrase "aider and abettor" with the
definition of the elements of the underlying offenses. The
defendant contends that "[t]hese instructions were confusing and
implied that the jury should presume that the defendant was an
aider and abettor, with the requisite knowledge and intent
pertaining to home invasion and attempted armed robbery." There
was no error.
Before defining the elements of each underlying offense,
the judge explained, "[W]henever I say the defendant, I always
mean as an aider or abettor or a joint venturer."6 In Zanetti,
6
For example, at the beginning of her instructions on home
invasion, the judge explained:
"To prove the defendant guilty of the crime of home
invasion, the Commonwealth must convince you the jury of
four elements beyond a reasonable doubt. That the
defendant as an aider and abettor unlawfully entered the
dwelling house of another. In other words, he doesn't have
21
454 Mass. at 468 n.22, we recommended that judges incorporate
the concept of accessory liability within their instructions on
substantive offenses. Here, the judge properly and consistently
instructed the jury that the Commonwealth bore the burden to
prove that the defendant knowingly participated in the predicate
offense, with the requisite shared intent.
In his third claim of error in the instructions, the
defendant argues that the judge made a misstatement at the end
of her instructions on the predicate offenses, when she said,
"If after your consideration of all the evidence you find the
Commonwealth has not proven any one of these elements beyond a
reasonable doubt you must find the defendant guilty of murder in
the first degree." This misstatement was a clear slip of the
tongue that went unnoticed by the judge and by the attorneys.
Throughout her comprehensive charge, the judge properly
instructed the jury on the presumption of innocence and the
Commonwealth's burden of proving each essential element of the
offense beyond a reasonable doubt. Thus, the misstatement was
isolated, and did not result in a substantial likelihood of a
miscarriage of justice. See Commonwealth v. Oliveira, 445 Mass.
837, 844-845 (2006).
c. Prosecutor's opening statement and closing argument.
to physically go there himself if he aided/abetted the
entry."
22
The defendant maintains that the prosecutor misstated the
evidence, both in her opening statement and in her closing
argument. For instance, the defendant points to the
prosecutor's asserted improper argument that the defendant
"planned and executed" the attempted armed robbery and the home
invasion. The defendant contends that the prosecutor misstated
the evidence by arguing that "but for" the defendant's
participation, the crimes would not have occurred.
We begin with the prosecutor's opening statement. Because
defense counsel timely objected, we review for prejudicial
error. See Commonwealth v. Santiago, 425 Mass. 491, 500 (1997).
The purpose of an opening statement is to "outline in a
general way the nature of the case which the counsel expects to
be able to prove or support by evidence" (citation omitted).
Commonwealth v. Fazio, 375 Mass. 451, 454 (1978). Here, the
prosecutor's opening statement did not exceed the bounds of
propriety. She used a sports analogy to explain the
Commonwealth's theory of the case, stating that the defendant
had been part of a team that planned and executed a botched home
invasion. She emphasized that each team member played a
particular role, and that the defendant contributed to the team
effort by supplying a firearm and some clothing needed for
disguise. The prosecutor also argued that the team effort
ultimately resulted in the deaths of the Delgado brothers. The
23
prosecutor's characterization of the defendant's role in the
shootings as the person who allegedly provided "that .380 gun
and hoodies to the team" did not misstate the evidence.
The defendant raises a similar argument with respect to the
prosecutor's closing, which carried on the sports analogy.
Since trial counsel did not object, we consider whether any of
the challenged statements was improper and, if so, whether it
created a substantial likelihood of a miscarriage of justice.
See Commonwealth v. Penn, 472 Mass. 610, 626-627 (2015), cert.
denied, 136 S. Ct. 1656 (2016).
In closing, the prosecutor urged the jury to draw an
inference, based on the evidence, that the defendant knew about
the intended robbery and was an active participant in it. She
pointed out that the defendant was aware that Hernandez had
robbed two women earlier in the evening, the defendant was
present when the men discussed robbing the two victims, and he
knew that Hernandez would be bringing his gun to the robbery.
The prosecutor described the defendant's role as providing "the
tools to the rest of the team to effectuate this armed robbery
and home invasion." This was not beyond the bounds of
permissible advocacy.
The defendant contends also that a portion of the
prosecutor's closing argument misstated the evidence. While
discussing Hernandez's attempt to hide his gun in the
24
defendant's apartment after the attempted robbery, the
prosecutor said the defendant "knew that that gun was just used
in a crime. The crime that he helped plan." The defendant
maintains that this statement "reiterated the false theme that
[he] was a planner whose role was critical." In the context of
the closing argument as a whole, however, see Commonwealth v.
Foxworth, 473 Mass. 149, 161 (2015), this isolated statement was
unlikely to have prejudiced the defendant. Throughout the
trial, the prosecutor clearly proceeded on the theory that the
defendant was liable because he had supplied necessary
instruments that facilitated the commission of the underlying
felonies, just as she presented his role on the "team" in her
opening statement.7
d. Evidence of uncharged prior misconduct. The defendant
maintains that the judge abused her discretion in allowing the
introduction of evidence of the prior armed robbery, as well as
photographs showing the defendant and an accomplice brandishing
handguns. The defendant argues that this evidence "overwhelmed"
the case with unfair prejudice. This argument is unavailing.
7
The defendant also argues that the prosecutor misstated
the evidence by arguing that Jamal entered the townhouse because
he was armed with the defendant's pistol; Hernandez participated
in the robbery because he wore a hoodie supplied by the
defendant; and nobody would have entered the townhouse unless
the defendant had supplied a firearm and disguises. There was
no error. The Commonwealth was entitled to analyze the evidence
and suggest reasonable inferences that the jury could draw from
that evidence. Commonwealth v. Cole, 473 Mass. 317, 333 (2015).
25
Evidence of a defendant's prior or subsequent bad acts is
not admissible to show "bad character or criminal propensity."
Commonwealth v. Lally, 473 Mass. 693, 712 (2016). It may be
admissible, however, where it is relevant for another purpose,
such as to establish a "common scheme, pattern of operation,
absence of accident or mistake, identity, intent, or motive."
Commonwealth v. Helfant, 398 Mass. 214, 224-225 (1986). We
review questions of admissibility, probative value, and unfair
prejudice for abuse of discretion, id. at 229, and do not
disturb a trial judge's decision absent a clear error of
judgment in weighing the relevant factors. See L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014). In deciding
whether to allow the admission of such evidence, a judge must
decide whether the probative value of the evidence is outweighed
by the risk of unfair prejudice to the defendant. See
Commonwealth v. Crayton, 470 Mass. 228, 249 (2014).
In the circumstances here, the judge did not abuse her
discretion in allowing the introduction of evidence concerning
the armed robbery earlier in the afternoon on the day of the
killing, while the defendant waited in the vehicle; such
evidence was probative of Hernandez's intent to rob the Delgado
brothers, and the defendant's shared intent to participate in
that crime by supplying the guns and the means for potential
disguise. Indeed, in his statement to police, the defendant
26
admitted that, as a result of the earlier robbery, he believed
Hernandez and the others intended to commit another armed
robbery at the time he handed them his gun.
We also discern no error in the introduction of the
photographs showing the defendant brandishing his gun. The
photographs were introduced to establish his access to a weapon
that was used in the commission of the underlying felonies --
the armed home invasion and the attempted armed robbery. See
Commonwealth v. Corliss, 470 Mass. 443, 450 (2015) (judge has
discretion to admit evidence that defendant previously possessed
weapon that could have been used to commit crime); Commonwealth
v. Tassinari, 466 Mass. 340, 353 (2013) (information about
defendant's possession of firearms admissible where connected to
commission of crime). The photographs, which were taken a few
weeks before the shootings, showed the defendant and Hernandez
displaying their respective weapons. Because both guns were
introduced in evidence, the prejudicial impact of the
photographs was minimal.
e. Jury voir dire. During a pretrial hearing, the judge
informed counsel that she intended to ask the venire a question
concerning joint venture liability. Defense counsel responded,
"Yes, I think that would be fine, Judge." At trial, the judge
asked potential jurors, "Is there anything about the concept of
aiding and abetting that would prohibit your ability to listen
27
and apply the law as I will explain it to you at the conclusion
of the trial and be a fair and impartial juror?" The defendant
did not object.
On appeal, the defendant contends that this question
reduced the Commonwealth's burden of proof and "ensur[ed] a jury
predisposed to find [him] guilty." Because the issue is
unpreserved, we review to determine whether asking the question
was erroneous and, if so, whether it created a substantial
likelihood of a miscarriage of justice. Wright, 411 Mass. at
681.
During jury selection, a judge is required to "examine
jurors fully regarding possible bias or prejudice where 'it
appears that there is a substantial risk that jurors may be
influenced by factors extraneous to the evidence presented to
them.'" Commonwealth v. Perez, 460 Mass. 683, 688 (2011),
quoting Commonwealth v. Garuti, 454 Mass. 48, 52 (2009). The
judge may ask questions designed to "determine whether jurors
[can] set aside their own opinions, weigh the evidence . . . ,
and follow the instructions of the judge." Commonwealth v.
Bryant, 447 Mass. 494, 501 (2006), quoting Commonwealth v.
Leahy, 445 Mass. 481, 495 (2005). The scope of jury voir dire
is committed to the judge's sound discretion, and we will uphold
the judge's questioning "absent a clear showing of abuse of
discretion." Commonwealth v. Gray, 465 Mass. 330, 338 (2013),
28
quoting Perez, supra at 689, and cases cited.
We do not share the defendant's view that the disputed
question predisposed the jury to convict the defendant. A
question may not be introduced if it "commit[ted] the jury to a
verdict in advance" or "[had] the effect of identifying and
selecting jurors who were predisposed to convicting the
defendant based on evidence the Commonwealth would present."
Gray, 465 Mass. at 339, quoting Perez, 460 Mass. at 691. Here,
the judge sought to identify jurors who were unwilling or unable
to follow her instructions regarding accomplice liability.
Indeed, one potential juror reported, "I have more qualms about
aiding and abetting being charged as a murder case." That juror
was excused without objection.
At the beginning of jury selection, the judge provided the
members of the venire with a preliminary instruction that the
Commonwealth was required to prove each essential element of the
offense beyond a reasonable doubt. In addition, the judge
instructed that it was the Commonwealth's burden to prove joint
venture liability by establishing that the defendant knowingly
participated in the commission of the crime with the requisite
intent to commit that crime. After jury selection, the judge
properly instructed the seated jury a number of times that, in
order for them to find the defendant guilty of felony-murder,
the Commonwealth was required to prove that the defendant aided
29
and abetted at least one of the underlying felonies. See
Commonwealth v. Gray, 465 Mass. at 341 (court considers issues
raised by question to venire in context with judge's conduct of
entire empanelment and judge's legal instructions on topic). We
conclude that the judge had discretion to ask the venire a
question regarding their ability to follow her legal
instructions, and that the defendant has failed to demonstrate a
substantial likelihood of a miscarriage of justice.
f. Abolition of the felony-murder rule. The felony-murder
rule "imposes criminal liability for homicide on all
participants in a certain common criminal enterprise if a death
occurred in the course of that enterprise." Hanright, 466 Mass.
at 307, quoting Commonwealth v. Matchett, 386 Mass. 492, 502
(1982). The defendant invites the court to abolish the felony-
murder rule, arguing that it is arbitrary and unjust, and in
violation of art. 12 of the Massachusetts Declaration of Rights.
According to the defendant, the imposition of felony-murder
liability is contrary to the fundamental notion that an
individual is culpable for his or her own misconduct.
Felony-murder is a common-law crime.8 See Matchett, 386
8
Felony-murder also falls within the province of G. L.
c. 265, § 1, which establishes two degrees of murder. That
statute provides: "Murder committed with deliberately
premeditated malice aforethought, or with extreme atrocity or
cruelty, or in the commission or attempted commission of a crime
punishable with death or imprisonment for life, is murder in the
30
Mass. at 502. The felony-murder rule imposes criminal liability
"on all participants in a certain common criminal enterprise if
a death occurred in the course of that enterprise."
Commonwealth v. Watkins, 375 Mass. 472, 486 (1978). "'The
effect of the felony-murder rule,' both for principals and
accomplices, 'is to substitute the intent to commit the
underlying felony for the malice aforethought required for
murder.'" Hanright, 466 Mass. at 307, quoting Matchett, supra.
We consistently have rejected the argument that the felony-
murder rule is unconstitutional, see Commonwealth v. Moran, 387
Mass. 644, 649-650 (1982), and Watkins, 375 Mass. at 486-487, or
that it relieves the Commonwealth of its obligation to prove a
defendant's own moral culpability. See Hanright, 466 Mass. at
307-310; Commonwealth v. Richards, 363 Mass. 299, 307 (1973) ("A
broad conception of complicity is indeed at work in the special
field of so called felony-murder . . .").
More recently, in Commonwealth v. Tejeda, 473 Mass. 269,
277 (2015), we considered the continued viability of the common-
law felony-murder rule, but did not reach the issue. Discussing
the scope of vicarious liability, we noted that felony-murder is
first degree. Murder which does not appear to be in the first
degree is murder in the second degree." General Laws c. 265,
§ 1, was enacted to "mitigate the harshness of the common law
rule imposing a mandatory death penalty on all murderers."
Commonwealth v. Paulding, 438 Mass. 1, 8 (2002), discussing
Commonwealth v. Dickerson, 372 Mass. 783, 803-805 (1977)
(Quirico, J., concurring).
31
an exception to the general rule that "[o]ne is punished for his
own blameworthy conduct, not that of others" (citation omitted).
Id. at 276. Under the felony-murder rule, "a person who
knowingly participates in one crime as part of a joint venture
is 'ipso facto also guilty' of [murder] committed by an
accomplice in furtherance of the joint venture." Id. We
discern no reason to deviate from our decisions in Moran and
Watkins, and to accept the defendant's invitation that we
abolish the felony-murder rule.
g. Review under G. L. c. 278, § 33E. The defendant asks
also that we exercise our authority under G. L. c. 278, § 33E,
to grant him a new trial because the felony-murder verdicts, "as
indicated by the prosecutor's reliance on innuendo and
misrepresentation," were against the weight of the evidence. We
have carefully reviewed the entire record pursuant to our duty
under G. L. c. 278, § 33E, and conclude that the verdicts of
felony-murder were neither contrary to our joint venture felony-
murder jurisprudence nor against the weight of the evidence.
Our authority under G. L. c. 278, § 33E, however, also
requires us to consider whether the convictions of murder in the
first degree are consonant with justice. Commonwealth v. Gould,
380 Mass. 672, 680 (1980). "If upon our examination of the
facts, we should, in our discretion, be of [the] opinion that
there was a miscarriage of justice in convicting the defendant
32
of murder in the first degree, and that a verdict of guilty of
murder in the second degree or of manslaughter would have been
more consonant with justice, it is now our power and duty so to
declare." Commonwealth v. Baker, 346 Mass. 107, 109 (1963).
The authority granted us under G. L. c. 278, § 33E, includes the
discretion to reduce a conviction of felony-murder in the first
degree in circumstances where the jury do not have that option.
Commonwealth v. Paulding, 438 Mass. 1, 10 (2002) (it is left to
court's authority under G. L. c. 278, § 33E, and is not within
jury's role in reaching verdict, to reduce felony-murder in
first degree to felony-murder in second degree).
We are cognizant that the court's authority under G. L.
c. 278, § 33E, should be used sparingly and with restraint. See
Commonwealth v. Lannon, 364 Mass. 480, 486 (1974). The court
does not serve as a second jury. Commonwealth v. Prendergast,
385 Mass. 625, 638 (1982). Moreover, the doctrines of felony-
murder and joint venture liability "are well established and
should not be undermined on an ad hoc basis." Commonwealth v.
Hooks, 375 Mass. 284, 298 (1978).
Nonetheless, we have recognized that "the doctrines of
felony-murder and joint venture may, on some hypothetical fact
patterns, produce a conviction of murder in the first degree
that would appear out of proportion to a defendant's
culpability." Commonwealth v. Rolon, 438 Mass. 808, 824 (2003).
33
Here, by contrast, the defendant was involved in the "remote
outer fringes" of the attempted armed robbery and armed home
invasion. See id. As discussed, the defendant should be held
liable for felony-murder as a supplier of a firearm and clothing
utilized by his cohorts in the commission of the underlying
felonies. Having carefully reviewed the facts and circumstances
of this case, we conclude that the defendant's conduct, as an
individual who participated on the "remote outer fringes" of the
joint venture, makes verdicts of murder in the second degree
more consonant with justice.
4. Conclusion. The verdicts of murder in the first degree
and the sentences imposed are vacated and set aside. The matter
is remanded to the Superior Court where verdicts of guilty of
murder in the second degree are to be entered, and the defendant
is to be sentenced accordingly. The defendant's remaining
convictions are affirmed.
So ordered.
GANTS, C.J. (concurring, with whom Lenk, Hines, and Budd,
JJ., join). I agree with the court that, where the defendant's
only participation in the crimes was to provide a firearm and
hooded sweatshirts to his friends, knowing they intended to use
them in the commission of an armed robbery, convictions of
murder in the first degree on the theory of felony-murder are
not consonant with justice. I write separately to explore how
our common law of felony-murder led to convictions of murder in
the first degree that are not consonant with justice, and to
explain why it is time for us to narrow the scope of liability
for that common-law crime. I believe that, in the future, a
defendant should not be convicted of murder without proof of one
of the three prongs of malice: that he or she intended to kill
or to cause grievous bodily harm, or intended 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. I also believe that we should abandon
the fiction of constructive malice -- that where a killing
occurs in the commission of a felony, the intent to commit the
felony is sufficient alone to establish malice.
As noted in the opinion of the court, following the
issuance of this concurring opinion, which is joined by three
other Justices, a conviction of felony-murder will require a
finding of actual malice, not merely constructive malice. As a
2
result, felony-murder will no longer be an independent theory of
liability for murder. Rather, felony-murder will be limited to
its statutory role under G. L. c. 265, § 1, as an aggravating
element of murder, permitting a jury to find a defendant guilty
of murder in the first degree where the murder was neither
premeditated nor committed with extreme atrocity or cruelty but
was committed in the course of a felony punishable by life
imprisonment.
The court correctly concludes that, under our existing
common law, the defendant committed felony-murder in the first
degree: he knowingly aided and abetted the commission of a life
felony (attempted armed robbery and home invasion), in which his
accomplices killed two victims. Under our existing common law
of felony-murder, it is legally irrelevant that the defendant
was not present at the scene of the attempted armed robbery; he
is criminally responsible for every act resulting in death
committed by his accomplices during the attempted commission of
the armed robbery. See Commonwealth v. Tejeda, 473 Mass. 269,
272 (2015). It is also legally irrelevant that he did not share
his accomplices' intent to kill or to cause grievous bodily harm
during the attempt; his intent to commit the armed robbery
substitutes for the malice aforethought generally required for
murder. Id. Because the underlying crimes were both felonies
punishable by life in prison, the jury properly were not
3
instructed on felony-murder in the second degree, because the
evidence did not permit such a verdict. See Commonwealth v.
Paulding, 438 Mass. 1, 10 (2002). In short, under our existing
common law of felony-murder, the jury reached the correct
verdicts. Indeed, guilty verdicts of murder in the first degree
on the theory of felony-murder are the only verdicts they
reasonably could have reached on this evidence. It is not the
fault of the jury that the verdicts they reached are not
consonant with justice; it is the fault of our common law of
felony-murder.1
1
It should not escape notice that this is the first time we
have exercised our authority under G. L. c. 278, § 33E, to
reduce a conviction of murder in the first degree on the theory
of felony-murder to murder in the second degree where the
evidence more than sufficed to support the verdict. See
Commonwealth v. Rolon, 438 Mass. 808, 824 n.19 (2003) ("This
court has reduced convictions of murder in the first degree
predicated on felony-murder only where the evidence suggested
that the felony intended by the defendant would not suffice for
felony-murder in the first degree"). Until now, "[t]his court's
power under G. L. c. 278, § 33E, has never been exercised to
relieve a defendant of the consequences of participation in a
felony that does qualify as the predicate for felony-murder in
the first degree." Id. In Rolon, we declared:
"We recognize that the doctrines of felony-murder and
joint venture may, on some hypothetical fact patterns,
produce a conviction of murder in the first degree that
would appear out of proportion to a defendant's
culpability. It may in some circumstances seem harsh to
convict a defendant of murder in the first degree if the
defendant was on the remote outer fringes of a joint
venture to commit some felony that satisfied the felony-
murder rule in only some hypertechnical way."
4
We have long recognized that "[t]he common law felony-
murder rule is of questionable origin." Commonwealth v.
Matchett, 386 Mass. 492, 503 n.12 (1982). A look at the early
English law reveals that there was no precedent in English cases
for what we now refer to as "felony-murder." Professor Guyora
Binder, in an exhaustive analysis of the origins of American
felony-murder rules, concluded:
"By the time of the American Revolution, the rule that
an accidental death in the course of any felony was murder
had become a standard theme in scholarly writing about the
common law of homicide . . . . Yet no English court had
ever actually applied such a rule. . . . By the end of the
eighteenth century, some judges thought cofelons were
automatically implicated in any murder committed in attempt
of a felony, but most judges required participation in or
encouragement of the act causing death."
Binder, The Origins of American Felony Murder Rules, 57 Stan. L.
Rev. 59, 98 (2004). An analysis of early American cases leads
to a similar conclusion -- in most instances murder liability
was imposed only where there was independent proof of malice.
See id. at 193-194.
Id. at 824. But in Rolon we simply assumed, "without deciding,
that reduction of a verdict in such circumstances could be
appropriate under [Mass. R. Crim. P. 25 (b) (2), as amended, 420
Mass. 1502 (1995)]." Id. We did not need to decide that issue
because we determined that the case did "not present such
circumstances." Id. Here, it is not accurate to say that the
defendant's conduct constituted felony-murder "in only some
hypertechnical way." However, the court correctly recognizes
that a conviction of murder in the first degree, with its
mandatory sentence of life in prison without the possibility of
parole, is not consonant with justice where the defendant's role
was limited to providing a firearm and hooded sweatshirts to his
accomplices for the commission of an armed robbery.
5
The absence of any clear preexisting concept of "felony-
murder" also becomes evident when examining the provenance of
the Massachusetts murder statute. In 1784, Massachusetts
enacted a statute providing "[t]hat whosoever shall commit
wilful murder, of malice aforethought, . . . shall suffer the
pains of death." St. 1784, c. 44. It was only in 1858 that the
Massachusetts Legislature established two degrees of murder, and
provided that the degree of murder is to be found by the jury.
St. 1858, c. 154, §§ 1, 2. "The legislative documents that
precede the enactment of St. 1858, c. 154, suggest that murder
was divided into degrees largely to mitigate the harshness of
the common law rule imposing a mandatory death penalty on all
murderers." Commonwealth v. Dickerson, 372 Mass. 783, 803
(1977) (Quirico, J., concurring). Murder in the first degree,
punishable by death, was defined as "[m]urder, committed with
deliberately premeditated malice aforethought, or in the
commission of an attempt to commit any crime punishable with
imprisonment for life, or committed with extreme atrocity or
cruelty." St. 1858, c. 154, § 1. This statute is described by
Professor Binder as a "felony aggravator statute," in that it
provided that where a defendant committed "murder" and where
that murder was committed in the attempt to commit a life
felony, the murder was murder in the first degree regardless of
whether it was premeditated or committed with extreme atrocity
6
or cruelty. See Binder, supra at 120. The statute did not
define "murder" and did not declare that a person is guilty of
murder whenever a death occurs during the commission of a
felony; the elements of murder liability continued to rest in
the domain of the common law. See People v. Aaron, 409 Mich.
672, 721 (1980) ("[t]he use of the term 'murder' in the first-
degree statute requires that a murder must first be established
before the statute is applied to elevate the degree").
It is not surprising that the first Massachusetts statute
that refers to murder in the commission of a felony treated it
simply as an aggravating element that made the murder worthy of
the death penalty. In the vast majority of the cases where a
victim was killed during the commission of a felony, the
defendant had killed the victim in furtherance of the crime or
to facilitate his or her escape, and intended to kill or to
commit grievous bodily harm, so there was no need for a distinct
theory of felony-murder that substituted the intent to commit
the underlying felony for the malice necessary for a murder
conviction. In these cases, the killing already met the
definition of murder. See Binder, supra at 65-66. Nor is it
surprising that this statute included only "an attempt to commit
any crime punishable with imprisonment for life," rather than
7
the commission of a completed crime.2 The law of attempt during
this time period was still evolving, and felony-murder was a
means to ensure that the attempt was appropriately punished
where it resulted in death. Id. at 92.
The first Supreme Judicial Court case that specifically
addressed the issue of liability for a death occurring during
the commission of a felony (felony-murder liability3) was issued
in 1863, five years after the enactment of the statute. See
Commonwealth v. Campbell, 7 Allen 541 (1863). In Campbell, a
man was killed by a gun shot during a draft riot but it was not
clear whether the shot was fired by a rioter or by a soldier who
was defending the armory from the rioters. Id. at 541, 543.
The court considered the prosecutor's request for a jury
instruction declaring that, if the defendant was a participant
in the riot, and if the homicide occurred during the attack on
the armory, the defendant "is in law guilty of manslaughter"
even if the evidence fails to show whether the shot was fired by
a rioter or a soldier. Id. at 543. The court held that the
2
The statute was revised in 1860 to include "[m]urder
committed . . . in the commission of, or attempt to commit, any
crime." St. 1860, c. 160, § 1.
3
In this opinion "felony-murder liability" refers to
liability for murder absent independent proof of malice. This
is distinguishable from felony-murder as a statutory aggravator
that merely elevates what would otherwise be murder in the
second degree, based on proof of actual malice, to murder in the
first degree where the killing occurred during the commission of
a life felony -- the concept codified in G. L. c. 265, § 1.
8
jury should be instructed that the defendant is entitled to an
acquittal unless the jury finds "beyond a reasonable doubt that
the deceased was killed by means of a gun or other deadly weapon
in the hands of the prisoner, or of one of the rioters with whom
he was associated and acting." Id. at 547-548. The court
reasoned that its conclusion flowed from the general rule of law
"that a person engaged in the commission of an unlawful act is
legally responsible for all the consequences which may naturally
or necessarily flow from it, and that, if he combines and
confederates with others to accomplish an illegal purpose, he is
liable [criminally] for the acts of each and all who participate
with him in the execution of the unlawful design." Id. at 543-
544. But he is not criminally liable for acts that are not
"committed by his own hand or by some one acting in concert with
him or in furtherance of a common object or purpose." Id. at
544.
The Campbell opinion identifies two principles of law on
which our common law of felony-murder liability rests that we
reject elsewhere in our criminal jurisprudence: vicarious
substantive criminal liability for every act committed by a
joint venturer, and the conclusive presumption of malice from
the intent to commit an inherently dangerous felony. See
Tejeda, 473 Mass. at 276 ("the common law of felony-murder is an
9
exception to two basic principles of our criminal
jurisprudence"). I discuss each in turn.
The first of these principles is the rule of law that a
person engaged in a criminal joint venture is criminally liable
for all of the acts of his or her accomplices committed in
furtherance of the joint venture. This rule was adopted by the
United States Supreme Court in Pinkerton v. United States, 328
U.S. 640, 645-648 (1946), which held that a defendant may be
found guilty of substantive offenses committed by his
coconspirator in furtherance of the conspiracy, even if he did
not participate directly in the commission of those substantive
offenses.
We no longer adhere to this Pinkerton theory of accomplice
liability. See Commonwealth v. Stasiun, 349 Mass. 38, 47-49
(1965) ("To be liable for the substantive offence, a
coconspirator must participate or aid in the commission of it").
We declared in Stasiun, supra at 48:
"While it has been said that a conspiracy is a
'partnership in crime' (United States v. Socony-Vacuum Oil
Co., Inc., 310 U.S. 150, 253 [(1940)]), that metaphor
should not be pressed too far. It does not follow that
such a partnership is governed by the same principles of
vicarious liability as would apply in civil cases. Our
criminal law is founded on the principle that guilt, for
the more serious offences, is personal, not vicarious. One
is punished for his own blameworthy conduct, not that of
others. Perkins on Criminal Law, 550 [(1957)]. Sayre,
Criminal Responsibility for the Acts of Another, 43 Harv.
L. Rev. 689 [(1930)]. . . . To ignore the distinction
between the crime of conspiracy and the substantive offence
10
would enable 'the government through the use of the
conspiracy dragnet to convict a conspirator of every
substantive offense committed by any other member of the
group even though he had no part in it or even knowledge of
it.' United States v. Sall, 116 F.2d 745, 748 (3d Cir.
[1940])."
Under our common law of joint venture liability, a
defendant is criminally responsible for a crime committed by an
accomplice only where the defendant knowingly participates in
the crime with the intent required to commit it. See
Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009). But until
now, we have retained one exception: under our common law of
felony-murder, a defendant was still vicariously responsible for
all the acts of his or her accomplices that resulted in death
committed during the course of the felony. Tejeda, 473 Mass. at
275-276. The consequence of this exception was that, if an
accomplice shot and killed a victim during the commission of an
armed robbery, the defendant was guilty of felony-murder even if
he or she sat outside in the getaway vehicle and had implored
the accomplices to hurt no one in committing the crime.
However, if the accomplice committed the same shooting but the
victim survived, the defendant sitting in that getaway vehicle
would have been guilty only of the underlying armed robbery, not
of the shooting. "Only where a dangerous felony result[ed] in
death [did] we adopt a principle that we otherwise [had] 'firmly
rejected' -- that a person who knowingly participates in one
11
crime as part of a joint venture is "ipso facto also guilty" of
all other crimes committed by an accomplice in furtherance of
the joint venture." Id., quoting Commonwealth v. Richards, 363
Mass. 299, 306 (1973). See Commonwealth v. Hanright, 466 Mass.
303, 307-310 (2013), quoting 2 W.R. LaFave, Substantive Criminal
Law § 13.3 (b), at 362-363 (2d ed. 2003) ("we remain committed
to the view that . . . A's guilt as an accomplice to one crime
should not per se be a basis for holding A accountable for a
related crime merely because the latter offense was carried out
by A's principal").
The second principle set forth in Campbell, 7 Allen at 543
-- "that a person engaged in the commission of an unlawful act
is legally responsible for all the consequences which may
naturally or necessarily flow from it" -- has evolved in our
common law of felony-murder into a rule that, where a defendant
commits an inherently dangerous felony, such as armed robbery,
he or she is criminally responsible for the consequences of
every act by a joint venturer during the commission of the
felony where the consequence is death. See Hanright, 466 Mass.
at 307-310, citing Matchett, 386 Mass. at 502. As a result of
this rule, a defendant who participates in an armed robbery is
guilty of felony-murder in the first degree if the defendant or
an accomplice commits any act that results in death, even if the
act is accidental and unintended. As a result, although in
12
every other circumstance a killing constitutes murder only where
it is committed with actual malice, where the killing occurs in
the commission of an inherently dangerous felony, proof of
actual malice is not required; a felony-murder conviction may
rest on proof of constructive malice, which is defined simply as
the intent to commit the underlying felony.
We have noted that, in this regard, our common law of
felony-murder is an exception to our general rule that "we
require proof of a defendant's intent to commit the crime
charged, and do not conclusively presume such intent from the
intent to commit another crime." Tejeda, 473 Mass. at 276. In
fact, we have said, "A felony-murder rule that punishes all
homicides committed in the perpetration of a felony whether the
death is intentional, unintentional or accidental, without the
necessity of proving the relation of the perpetrator's state of
mind to the homicide, violates the most fundamental principle of
the criminal law -- 'criminal liability for causing a particular
result is not justified in the absence of some culpable mental
state in respect to that result.'" Matchett, 386 Mass. at 506-
507, quoting Aaron, 409 Mich. at 708.
The consequence of this exception to "the most fundamental
principle of the criminal law" is that, if a defendant drops his
or her firearm and accidentally shoots someone during the
commission of a felony, the defendant is guilty of both the
13
underlying felony and felony-murder if the shooting proves
fatal. But if the victim survives, the defendant is guilty only
of the underlying felony, and is not criminally responsible for
the shooting. The defendant's liability for the shooting rests,
not on the defendant's conduct, but on whether the victim lives
or dies. See, e.g., Hanright, 466 Mass. at 308-309 ("The intent
to commit armed robbery, although sufficient to support
liability for felony-murder on a theory of joint venture, is
insufficient to support liability for" additional offenses
against other, surviving police officers who attempted to
apprehend accomplice); Richards, 363 Mass. at 302, 307-308
(defendant who was waiting near getaway vehicle in armed robbery
may be found guilty of assault with intent to murder police
officer committed by accomplice only if defendant had specific
intent to kill police officer).
We have recognized that the application of the felony-
murder rule erodes "the relation between criminal liability and
moral culpability." Matchett, 386 Mass. at 507, quoting People
v. Washington, 62 Cal. 2d 777, 783 (1965). It is time for us to
eliminate the last vestige of these two abandoned principles and
end their application in our common law of felony-murder. Doing
so means that criminal liability for murder in the first or
second degree will be predicated on proof that the defendant
acted with malice or shared the intent of a joint venturer who
14
acted with malice. The sole remaining function of felony-murder
will be to elevate what would otherwise be murder in the second
degree to murder in the first degree where the killing occurs
during the commission of a life felony.4
Thus, a defendant who commits an armed robbery as a joint
venturer will be found guilty of murder where a killing was
committed in the course of that robbery if he or she knowingly
participated in the killing with the intent required to commit
it -- that is, with the intent either to kill, to cause grievous
bodily harm, 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. Model Jury
Instructions on Homicide 57 & n.131 (2013), citing Commonwealth
v. Earle, 458 Mass. 341, 346-347 & n.9, 350 (2010), and
Commonwealth v. Grey, 399 Mass. 469, 470 n.1, 472 n.4 (1987).
Where a defendant participates in an armed robbery but does not
have the requisite intent for murder, the defendant will be
found guilty of involuntary manslaughter if he or she acted
wantonly or recklessly. Where a defendant does not participate
in the killing or otherwise lacked the intent required to prove
murder or manslaughter, the defendant will not go free because
he or she can still be convicted of the underlying armed robbery
4
This will entirely eliminate the concept of "felony-murder
in the second degree." See Model Jury Instructions on Homicide
58-63 (2013).
15
he or she committed, and a judge in setting the sentence on that
underlying felony can take into account the aggravating factor
that the felony resulted in a victim's death. Where the
defendant is found guilty of murder and the murder is committed
"in the commission or attempted commission of a crime punishable
with . . . imprisonment for life," the defendant will be guilty
of murder in the first degree, regardless of whether the murder
was premeditated or committed with extreme atrocity or cruelty.
G. L. c. 265, § 1.
We are not the first to do this. Great Britain has
abolished felony-murder liability by statute, providing that
"[w]here a person kills another in the course or furtherance of
some other offence, the killing shall not amount to murder
unless done with the same malice aforethought . . . as is
required for a killing to amount to murder when not done in the
course or furtherance of another offence." Homicide Act of
1957, 5 & 6 Eliz. 2, c. 11, § 1. See Tejeda, 473 Mass. at 277
n.9. Michigan has abolished felony-murder liability under its
common law, id., citing Aaron, 409 Mich. at 727-729, and Hawaii
and Kentucky have abolished felony-murder liability by statute.
Tejeda, supra, citing 7A Hawaii Rev. Stat. § 707-701 commentary,
and Ky. Rev. Stat. Ann. § 507.020, 1974 commentary. Other
States have not abolished the doctrine but have significantly
departed from the traditional formulation. See Tejeda, supra,
16
citing State v. Doucette, 143 Vt. 573, 582 (1983) (holding that
felony-murder requires proof of malice, but that malice can be
inferred "from evidence presented that the defendant
intentionally set in motion a chain of events likely to cause
death or great bodily injury, or acted with extreme indifference
to the value of human life"), Del. Code Ann. tit. 11, §§ 635,
636 (2007) (requiring defendant to act with recklessness, for
murder in the first degree, or criminal negligence, for murder
in the second degree), and N.Y. Penal Law §§ 125.25(3), 125.27
(McKinney 2009) (setting forth affirmative defense where joint
venturer rather than defendant commits act causing death). The
Model Penal Code also has abandoned the traditional doctrine of
felony-murder, requiring the homicide to be purposeful, knowing,
or reckless in order to constitute murder, but providing for a
rebuttable presumption of recklessness where the homicide
occurred during the commission of certain felonies. Model Penal
Code §§ 1.12(5), 210.2(1)(b) (Official Draft and Revised
Comments 1985). See Matchett, 386 Mass. at 503 n.12.
Without felony-murder liability, our common law of murder
will be spared much of the confusion that has arisen from
applying legal principles we have otherwise abandoned. General
Laws c. 265, § 1, provides that "[t]he degree of murder shall be
found by the jury," but we have held that this statutory
directive cannot be met when a defendant is charged with felony-
17
murder and the only underlying felony is a life felony, because
in such a case "no reasonable view of the evidence supports a
conviction of murder in the second degree." See Paulding, 438
Mass. at 3. As a result, when a defendant fatally shoots a
victim but does not do so during the commission of a felony, the
jury must be given the option of finding the defendant guilty of
murder in the second degree. But when a defendant, as in this
case, provides a weapon and hooded sweatshirts to friends to
help them commit what turns out to be a botched armed robbery,
the jury is denied that option.
The abolition of felony-murder liability from our common
law of murder is prospective, applying only to cases where trial
begins after our adoption of the change. It will have no effect
on felony-murder cases already tried, including this case (which
is why this is a concurrence rather than a dissent). I
recognize that a felony-murder case might have been tried very
differently if the prosecutor had known that liability for
murder would need to rest on proof of actual malice. For
instance, a prosecutor might have asked for an involuntary
manslaughter instruction if he or she had known that the jury
could not rest a finding of murder on felony-murder liability.
Justice Gaziano's concurrence identifies various factual
scenarios, some of which come from Massachusetts criminal cases,
where a victim was killed during the commission of a felony.
18
See post at . Through these examples, that concurrence seeks
to show, first, that a verdict of murder in the first degree
would not be possible on these facts without felony-murder
liability and, second, that any lesser conviction would not be
consonant with justice. See id. In fact, the examples show
that, without felony-murder liability, each of these cases could
yields convictions that are entirely consonant with justice.
Without felony-murder liability, the rapist who smothers
the child rape victim could be found guilty of murder with
actual malice if a jury found, either from the violence of the
rape or the smothering of the child, that the defendant had an
intent to commit grievous bodily harm or intended to do an act
that, in the circumstances known to the defendant, a reasonable
person would have known created a plain and strong likelihood
that death would result. See post at . Had the jury been so
instructed, Robert Wade, too, could have been found guilty of
murder without felony-murder liability based on his rape of the
eighty-three year old woman, his dragging her along a dirt road,
and his violent assault on her body, which would more than
suffice to support a finding of those two prongs of malice. See
id. at ; Commonwealth v. Wade, 428 Mass. 147, 148-149, 153
(1998) (jury instructed only on felony-murder in first and
second degree and manslaughter). Had the jury found actual
malice, each would have been convicted of murder in the first
19
degree under G. L. c. 265, § 1, because the murder was committed
in the commission of a life felony.
The armed robbers who accidently discharged a fatal shot
while vaulting over the counter or when struck by the victim's
baseball bat likely could not be found guilty of murder in the
first degree because their intent with respect to the killing
probably did not satisfy any of the three prongs of malice. See
id. at ; Commonwealth v. Vizcarrondo, 427 Mass. 392, 397
(1998). But they might be found guilty of involuntary
manslaughter if the jury found that the death arose from their
wanton or reckless conduct that created a high degree of
likelihood that substantial harm will result to another person.
See Model Jury Instructions on Homicide 73 & n.158 (2013),
citing Commonwealth v. Earle, 458 Mass. 341, 347 (2010);
Commonwealth v. Sneed, 413 Mass. 387, 393-394 (1992). And, even
if the jury found that the death did not arise from their wanton
or reckless conduct, they could still be sentenced to life in
prison on the armed robbery conviction. See G. L. c. 265, § 17.
Convictions of both armed robbery and involuntary manslaughter,
or of armed robbery alone, with a possible sentence of life in
prison, should not be perceived as "getting off easy" for an
accidental killing during an armed robbery.5
5
Justice Gaziano's concurrence correctly notes that this
concurring opinion is in conflict with the reasoning in the
20
Felony-murder liability is a creation of our common law,
and this court is responsible for the content of that common
law. When our experience with the common law of felony-murder
liability demonstrates that it can yield a verdict of murder in
the first degree that is not consonant with justice, and where
we recognize that it was derived from legal principles we no
longer accept and contravenes two fundamental principles of our
court's unanimous opinion in Commonwealth v. Hanright, 466 Mass.
303 (2013), where we reversed the judge's dismissal of
indictments charging crimes related to an accomplice's attempted
escape following an armed robbery and shooting and so much of an
indictment charging murder in the first degree as included
theories other than felony-murder. Where that opinion discussed
the distinction between joint venture liability for the escape-
related crimes and the joint venture principles in the common
law of felony-murder, I agree that the reasoning differs, but
that reasoning was premised on principles that this concurring
opinion changes. The reference to that case is apt, however,
because its facts illustrate the need for this change in our
jurisprudence if our law of homicide is to be more consonant
with justice. Under our current law of felony-murder, Scott
Hanright, who was nineteen years old at the time, could have
been convicted of murder in the first degree, with a mandatory
life sentence without the possibility of parole, if he were
found to have served as an unarmed lookout or getaway driver
during a department store robbery committed by his accomplice,
who was his grandmother's boyfriend. Id. at 305-306. The
accomplice killed a police officer who responded to the robbery;
Hanright never entered the department store and, when he saw
police officers pursuing his accomplice before the shooting,
walked away from the scene of the crime. Id. at 306. The
prosecutor ultimately did not seek a conviction of murder in the
first degree; Hanright pleaded guilty to murder in the second
degree. Man, 23, Guilty in Slaying of Officer, Boston Globe,
May 28, 2015, at B1. A conviction of murder in the second
degree would not have been legally possible except through our
review under G. L. c. 278, § 33E, if Hanright had been found
guilty of felony-murder in the first degree with armed robbery
as the predicate felony.
21
criminal jurisprudence, we must revise that common law so that
it accords with those fundamental principles and yields verdicts
that are just and fair in light of the defendant's criminal
conduct. "And if not now, when?" C. Taylor, Sayings of the
Jewish Fathers 23 (2d ed. 1897) (quoting Hillel the Elder).
GAZIANO, J. (concurring, with whom Lowy and Cypher, JJ.,
join). A rapist smothers a distraught child victim to silence
her sobbing. To his surprise, the child dies. An armed robber
enters a convenience store and threatens the store clerk with a
handgun. The store clerk, frozen in fear, fails to comply with
his demands. The frustrated armed robber vaults over the
counter to empty the cash register, and in the process
accidently discharges a fatal shot. See Binder, The Culpability
of Felony Murder, 83 Notre Dame L. Rev. 965, 966 (2008) (Binder
I). Neither of these offenders would be convicted of murder
under Chief Justice Gants's abrogated version of felony-murder.
In this view, charging the rapist and the armed robber with
murder would be unfair and unjust because each's criminal
liability is disconnected from moral culpability for the
respective crimes. This approach, which is predicated on an
extremely narrow view of moral culpability (or blameworthiness),
diminishes the seriousness of violent felonies that result in
the deaths of innocent victims.1
1
The concurring opinion by Chief Justice Gants relies on
Commonwealth v. Matchett, 386 Mass. 492, 507 (1982), in support
of the proposition that application of the felony-murder rule
erodes "the relation between criminal liability and moral
culpability." Ante at . Prior to the decision in that case,
"a defendant could be found guilty of murder on a theory of
felony-murder if he or she committed a homicide while engaged in
the commission or attempted commission of a felony punishable by
life in prison." Commonwealth v. Prater, 431 Mass. 86, 95
(2000). In Matchett, supra, we addressed those concerns by
2
Although an offender's mental state is an important
component of assessing blameworthiness, it is not "the only
legitimate determinant of the grade of a homicide resulting from
a felony." Crump & Crump, In Defense of the Felony Murder
Doctrine, 8 Harv. J.L. & Pub. Pol'y 359, 366 (1985) (Crump).
See Binder I, supra at 1059 (accurate assessment of culpability
requires consideration of fatal result). It is a fundamental
tenet of criminal law that blameworthiness is premised on two
factors, not just the offender's state of mind. Commonwealth v.
Lopez, 433 Mass. 722, 725 (2001), citing Morissette v. United
States, 342 U.S. 246, 250 (1952). A criminal defendant's
blameworthiness depends on "a showing that the prohibited
conduct (actus reus) was committed with the concomitant mental
state (mens rea) prescribed for the offense." Lopez, supra,
citing Morissette, supra. See Crump, supra at 362 ("Differences
in result must be taken into account as part of actus reus if
classification and grading are to be rational"). The actus reus
component of a criminal offense refers to all of the physical
elements of the crime, including the individual's offense
conduct and the consequences of the act. See Commonwealth v.
Williams, 399 Mass. 60, 64-65 (1987). See also Black's Law
narrowing the scope of the felony-murder rule to require that
the Commonwealth prove that the underlying felony is either
inherently dangerous to human life or was committed with a
conscious disregard of the risk to human life.
3
Dictionary 44 (10th ed. 2014) (actus reus includes attendant
circumstances and societal harm caused by criminal act, all of
which make up physical components of offense).
The criminal law, in general, considers the harm caused by
an individual in evaluating the severity of an offense. Binder,
Making the Best of Felony Murder, 91 B.U. L. Rev. 403, 427
(2011) (Binder II) ("the evaluation of ends pervades American
criminal law"). Chief Justice Gants's exclusive focus on the
mens rea component of the crime ignores the human costs of an
offender's actions, and overlooks numerous examples in the
criminal law to the contrary. For example, it is a misdemeanor
to drive a motor vehicle while under the influence of alcohol.
See G. L. c. 90, § 24. If one intoxicated driver strikes and
kills a pedestrian, whereas another manages to avoid any
accident, the former offense is elevated to the serious felony
of motor vehicle homicide. See G. L. c. 90, § 24G (a). A
defendant who shoots and kills his or her intended target, and
an individual who attempts to shoot someone, but misses, may
share the same intent to kill, yet it is clear that they are not
equally blameworthy. See Commonwealth v. LaBrie, 473 Mass. 754,
760 (2016) (discussing mens rea of attempted murder).
To provide needed context, I address several instances
where blameworthy defendants, who did not kill intentionally or
recklessly, were convicted of felony-murder in the first degree.
4
Each of these defendants would not be convicted of murder under
Chief Justice Gants's reformulation of the felony-murder rule.
In October, 1993, a farmhand named Robert Wade abducted the
farm owner's eighty-three year old mother from her house. Wade
dragged the victim, who suffered from Alzheimer's disease, along
a dirt road to the shack where he lived. Commonwealth v. Wade,
428 Mass. 147, 147-149 (1998). In the process, the victim's
shoulders, knees, and buttocks were badly scraped, and gravel
was embedded in the torn tissue of her back. Id. at 149. Wade
brutally raped her. Id. at 148. "The victim's clothing [was]
torn and was covered with human blood. She . . . suffered
bruises to her eyes and to her neck . . . , her left wrist was
fractured and there was evidence that she . . . suffered a blow
to the head." Id. at 148-149. The farmer found his mother
lying naked on the defendant's bed. Id. at 148. Her hip had
been fractured during the sexual assault. Id. at 149. She had
hip replacement surgery, but contracted pneumonia and died three
weeks after the rape. Id. The court affirmed the defendant's
conviction of felony-murder in the first degree with aggravated
rape as the predicate felony. Id. at 147-148. The court also
determined that there was no basis on which to grant relief
under G. L. c. 278, § 33E, for this "brutal attack on a
5
vulnerable, older woman." Id. at 155.2,3
On March 28, 1980, William Griffith spent the evening
smoking marijuana, ingesting cocaine, and drinking alcohol.
Commonwealth v. Griffith, 404 Mass. 256, 258 (1989).
Thereafter, he announced that he was going to rob a convenience
store located about a block away. Id. Griffith waited for the
2
The court's decision in Commonwealth v. Wade, 428 Mass.
147, 147-149 (1998), supports the position that a rapist whose
actions result in death, regardless of whether the death is
intended, is sufficiently blameworthy for the imposition of
felony-murder liability due to the depraved nature of this
crime.
"To compel another by force to acquiesce in the
violation of an important right is to express contempt for
a victim's autonomy and status by asserting mastery over
him or her. The death of a victim under the offender's
dominion and as a result of the offender's coercion,
typifies the wrongfulness of assuming power over another's
fate in order to wrong her. Felony murder rules
appropriately impose liability for negligently causing
death for a very depraved motive, as long as the predicate
felony involves coercion or destruction, and a felonious
purpose independent of the fatal injury. In evaluating the
offender's motives, felony murder rules are compatible with
other rules of American criminal law . . . ."
Binder, The Culpability of Felony Murder, 83 Notre Dame L. Rev.
965, 1059-1060 (2008) (Binder).
3
According to Chief Justice Gants's concurrence, the
factual scenarios discussed above, in which the victim was
killed in the course of a sexual assault, would result in a
conviction of murder. This is a misreading of the fact
patterns. The rapist described in the hypothetical is intent on
one "selfish aim[]," and does not recognize the obvious risks
that his conduct imposes on the victim. Binder I, supra at 966.
Similarly, Robert Wade's intent was to abduct and rape the
elderly victim; he dragged her out of the farmhouse and beat her
to accomplish this purpose. She died weeks later due to medical
complications. Wade, 428 Mass. at 147-149.
6
store to empty of customers, and entered armed with a revolver.
Id. He demanded money from the victim at gunpoint. Id. The
victim managed to slip away during a chaotic moment when his
wife confronted Griffith. Id. The victim then emerged from a
back room armed with a baseball bat, and struck Griffith on the
shoulder, head, and arm. Id. During this confrontation,
Griffith accidently shot the victim in the head. Id. The
defendant was convicted of felony-murder, and the court
concluded that his claim that the shooting was an accident did
not absolve him of liability. Id. 257, 260-261. "A defendant
who kills a victim in the commission or attempted commission of
a robbery, while the defendant is armed with a gun, is guilty of
murder by application of the felony-murder rule. . . . The fact
that, according to the defendant, the gun was discharged
accidently is of no consequence." Id. at 261, quoting
Commonwealth v. Evans, 390 Mass. 144, 151-152 (1983). See
Commonwealth v. Neves, 474 Mass. 355, 371 (2016) (defendant
convicted of felony-murder in death of taxicab driver
notwithstanding defendant's claim that gun discharged accidently
when victim accelerated and grabbed his hand).
The second issue raised in Chief Justice Gants's
concurrence involves the imposition of vicarious criminal
liability for every act committed by an accomplice, in
furtherance of the felony, that results in death. See
7
Commonwealth v. Tejeda, 473 Mass. 269, 276 (2015). Under this
reformulation of felony-murder, an accomplice would be liable
for a death resulting from the commission of a felony only if
the Commonwealth were able to prove that he or she shared the
intent of a joint venturer who acted with malice.
Chief Justice Gants's concurrence repudiates the court's
recent decision in Commonwealth v. Hanright, 466 Mass. 303, 310
(2013). In that case, the nineteen year old defendant
participated in a masked armed robbery of a department store by
an acquaintance, Domenic Cinelli. Id. at 304-305. The
defendant, who was unarmed, walked to the store with Cinelli,
and waited outside while Cinelli entered. Id. at 306. He told
the police that he did not act as a lookout. Id. He claimed
that he merely went along because he was afraid of Cinelli, and
because he hoped to share in some of the proceeds from the
robbery. Id. Responding to a report of a robbery in progress,
police observed the defendant standing outside, but focused on
Cinelli, who left the store carrying a duffle bag. Id. Cinelli
pointed a gun at the first responding officer, a chase ensued,
and Cinelli fatally shot one of the officers. Id. The
defendant had walked away from the store during the pursuit, and
was not involved in the subsequent confrontation. Id.
Addressing joint venture liability for escape-related
crimes, the court stated, "To establish liability for felony-
8
murder on a theory of joint venture the Commonwealth must prove
'that a homicide occurred in the commission or attempted
commission of that felony[.] [C]omplicity in the underlying
felony is sufficient to establish guilt of murder in the first
or second degree if the homicide . . . followed naturally and
probably from the carrying out of the joint enterprise'"
(emphasis in original; citation omitted). Id. at 307.
Recognizing that "the felony-murder rule operates according to a
unique set of principles," the court concluded that the felony-
murder doctrine allowed a jury to find the defendant liable for
the police officer's death by virtue of his complicity in the
underlying armed robbery. Id. at 308-309. Thus, the jury were
not required to find that the defendant specifically intended to
harm the officer. Id. See Commonwealth v. Devereaux, 256 Mass.
387, 392 (1926) ("it is no defence for the associates engaged
with others in the commission of a robbery, that they did not
intend to take life in its perpetration, or that they forbade
their companions to kill").
The conclusion reached by Chief Justice Gants is that
revision of the common-law felony-murder rule is necessary to
vanquish the "fiction of constructive malice," and yield
"verdicts that are just and fair in light of the defendant's
criminal conduct." See ante at . Yet, under this narrowed
version of felony-murder, the defendant in this case likely
9
would be convicted of murder in the first degree on the basis of
his joint participation in an act of third prong malice.
Chief Justice Gants describes joint venture felony-murder
liability as follows: "a defendant who commits an armed robbery
as a joint venturer will be found guilty of murder where a
killing was committed in the course of that robbery if he or she
knowingly participated in the killing with the intent required
to commit it -- that is, with the intent either to kill, to
cause grievous bodily harm, 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." Ante at .
Here, the Commonwealth established that the defendant
knowingly participated in the killing by supplying an accomplice
with a loaded .380 handgun and other accomplices with hooded
sweatshirts to be used to conceal their identities. See
Commonwealth v. Zanetti, 454 Mass. 449, 470 (2009) (Appendix)
(knowing participation includes aid or assistance in committing
the crime). The evidence also would support a reasonable
inference that the defendant had or shared the intent to carry
out the crime of armed home invasion or armed robbery. The
defendant supplied the handgun and disguises knowing that his
accomplices were planning to enter an occupied residence at
night to rob two large men, both drug dealers, at gunpoint. In
10
Commonwealth v. Selby, 426 Mass. 168, 172 (1997), the court
concluded that a jury could infer third-prong malice from
evidence that an individual entered an occupied house, carrying
a loaded firearm, with the intent to commit a robbery. See
Commonwealth v. Childs, 445 Mass. 529, 533 (2005) (act of
cocking and pointing loaded gun at three people creates plain
and strong likelihood of death to one of them).
In Commonwealth v. Rolon, 438 Mass. 808, 824 (2003), the
court noted that "the doctrines of felony-murder and joint
venture may, on some hypothetical fact patterns, produce a
conviction of murder in the first degree that would appear out
of proportion to a defendant's culpability." The reasonable and
far simpler remedy to the problem of a disproportionate
conviction of murder in the first degree is to exercise the
court's statutory authority under G. L. c. 278, § 33E, to reduce
the verdict in those extraordinary cases not consonant with
justice. See Zanetti, 454 Mass. at 466 ("All of this . . .
might be tolerable if there were no reasonable alternative, but
there is a reasonable, and far simpler, alternative . . ."). As
Chief Justice Gants's concurrence points out, this is the first
time that the court has exercised its authority under G. L.
c. 278, § 33E, to reduce a conviction of felony-murder in the
first degree in similar circumstances. See ante at .
Thus, rather than abolish common-law felony-murder, Chief
11
Justice Gants's concurrence offers a muddled version of the same
crime. In the future, felony-murder liability will hinge on
fine gradations between third-prong malice, wanton and reckless
involuntary manslaughter, negligence, and accident -- with
predictably unpredictable results. See Crump, supra at 372
(discussing disparity in verdicts created by ambiguous felony-
murder rule). To be sure, there will be instances where morally
culpable individuals will not be held responsible for the death
of a rape victim, gasoline station attendant, or convenience
store clerk. Rather than create such confusion, I would,
instead, rely on the existing mechanism under G. L. c. 278,
§ 33E, to remedy those rare cases, such as the one presented
here, where a verdict is not consonant with the interests of
justice. In my view, the abrogation of common-law felony-murder
to address the perceived unfairness of this conviction, at the
expense of innocent victims of violent crime, is not necessary.