Com. v. Ambers

• Decision Date: 18 August 1976
• Citation: 352 N.E.2d 922,370 Mass. 835
• Parties: COMMONWEALTH v. Harry AMBERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 922

352 N.E.2d 922

370 Mass. 835

COMMONWEALTH

v. Harry AMBERS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 6, 1976.

Decided Aug. 18, 1976.

Daniel F. Toomey, Boston, for defendant.

Kathleen M. Curry, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER and KAPLAN, JJ.

HENNESSEY, Chief Justice.

On December 5, 1973, the defendant was convicted by a Suffolk County jury of murder in the first degree and armed robbery. The case is here on appeal under G.L. c. 278, §§ 33A--33G, the defendant claiming that the judge's instructions to the jury were so misleading and inaccurate as to deprive him of his right to have the jury decide the facts. We do not agree and therefore we affirm the convictions below.

The evidence may be summarized as follows. During the morning hours of November 27, 1972, a Massachusetts Bay Transportation Authority porter was found mortally injured in the Essex Street station. The turnstiles had been broken into, the cash boxes were missing, and the victim's wallet and personal papers were found in a collector's booth.

The Commonwealth's case rested primarily on the statements made by the defendant during a series of interviews with a detective of the homicide unit of the Boston police department. The defendant's confession, which was recorded with his knowledge and consent, was introduced in evidence over his objection. In substance, the defendant, after being advised of his Miranda rights (see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)), admitted that he, along with two others, had been involved in the incident at the Essex Street station on the morning of November 27, 1972.

The defendant stated that he and his two companions, his brother and one Lawrence Adams, had climbed a fence and had entered the station through a tunnel. Before entering the station, Adams told the defendant and his brother that there was a person in the station who was sleeping, but not to worry, for he, Adams, would 'take care of that.' Subsequently, the defendant saw Adams approach the collector's booth with a board and hit the porter over the head several times.

During the first interview, the defendant said that Adams had instructed the two brothers to go to opposite ends of the station and 'to pop the machines quick and to take the boxes' after he had hit the porter. But in response to a question by the detective, the defendant said that he thought that Adams was not going to harm the man but would only 'put a knife to the guy and tell him not to move.'

According to the defendant's statement, after the porter was struck with the plank of wood, Adams took a large, gold watch and some money from the victim. Thereafter, Adams and the defendant broke into five or six coin boxes with a sledge hammer while the defendant's brother stayed near the injured porter. Adams cut himself while prying open the boxes. As they fled the station, they dropped the boxes and some of the money on the subway tracks.

The defendant, the only defense witness, testified that his confession was fabricated in order to get revenge against his brother and Adams who he suspected had broken into his apartment and had stolen some of his belongings.

The remainder of the Commonwealth's case consisted of testimony and physical evidence tending to corroborate the details of the defendant's confession. The medical examiner testified that the porter's death was caused by multiple skull fractures resulting from successive blows to the head with a blunt instrument. The victim's wife testified that her husband had owned a gold watch with a large band and that she had not seen it since his death. Broken cash boxes were introduced in evidence, one of which had human bloodstains on it. Further, coins that had been found on the subway tracks were admitted in evidence.

At the close of all the evidence, the trial judge instructed the jury with respect to murder, including felony murder in the first and second degree (G.L. c. 265, § 1), and armed robbery (G.L. c. 265, § 17). He stated, when explaining the jury's duty to assess credibility, that their choice was a narrow one: if they believed what the defendant said in his interview with the detective, then a verdict of murder in the first or second degree would necessarily follow, but if they believed the defendant's court room testimony in which he recanted his prior statements, then he must be found not guilty. The judge, after defining joint enterprise, told the jury that if they believed the defendant's confession and found that he had engaged in a joint venture to commit robbery, then he too would be responsible for the homicide if the homicide occurred during the commission of the robbery. At the suggestion of the assistant district attorney, the judge instructed the jurors that if they found that larceny, rather than robbery by force or violence, had been the extent of the joint venture, then a verdict of murder in the second degree would be justified.

Defense counsel submitted no suggested instructions to the judge, took no exception to the charge, and in fact, indicated agreement with the instructions as given. Following their deliberations, the jury found the defendant guilty of murder in the first degree and armed robbery.

The defendant's attorney for this appeal is not the attorney who represented him at trial. Counsel now argues that the judge's charge, by instructing the jury to return a verdict of murder in the first or second degree if they believed the defendant's confession, amounted to a deprivation of the defendant's right to have the jury make findings of fact as to the scope of the joint venture. Defense counsel contends that the judge, in effect, usurped the jury's function by directing a finding that the defendant had participated in a scheme of which homicide was a natural and probable consequence.

As noted above, the defendant made no objection to the judge's instructions. It is well settled that 'an assignment of error under G.L. c. 278, §§ 33A--33G, brings nothing to this court unless based on a valid exception.' Commonwealth v. Chapman, 345 Mass. 251, 255--256, 186 N.E.2d 818, 821 (1962); Commonwealth v. Gibson, --- Mass. ---, --- ^a, 333 N.E.2d 400 (1975). This rule applies equally to capital cases within the definition of G.L. c. 278, § 33E. Commonwealth v. Hall,--- Mass. ---, ---, ^b 343 N.E.2d 388 (1976). Nevertheless, under the mandate of c. 278, § 33E we have considered the whole case broadly to determine whether there was any miscarriage of justice, Commonwealth v. Rego, 360 Mass. 385, 394, 274 N.E.2d 795 (1971), and we hold that no relief is warranted or required under § 33E.

Several legal principles are especially pertinent in this case, viz: the law of joint venture and felony murder and the related principles concerning first and second degree murder. We summarize these principles briefly.

Commonwealth v. Richards, 363 Mass. 299, 293 N.E.2d 854 (1973), defines the requirements for criminal liability in a joint enterprise. This standard, which requires that an accomplice intentionally encourage or assist in the commission of a crime and have the requisite mental state, id. at 307, 293 N.E.2d 854, is operative when determining liability for the felony which serves as the predicate for the application of the felony murder rule. Once it is determined that a defendant is a joint venturer in a felony and that a homicide occurred in the commission or attempted commission of that felony, complicity in the underlying felony is sufficient to establish guilt of murder in the first or second degree (see G.L. c. 265, § 1) if the homicide followed naturally and probably from the carrying out of the joint enterprise. See Commonwealth v. Rego, supra; Commonwealth v. Devlin, 335 Mass. 555, 141 N.E.2d 269 (1957); Commonwealth v. Lussier, 333 Mass. 83, 128 N.E.2d 569 (1955); Commonwealth v. Devereaux, 256 Mass. 387, 152 N.E. 380 (1926); COMMONWEALTH V. MANGULA, --- MASS.APP. ---, 322 N.E.2D 177 (1975)^C; W. R. LaFave & A. W. Scott, Jr., Criminal Law §§ 64, 71 (1972); Model Penal Code § 2.04(3), at 24--26. (Tent. Draft No. 1, 1953). ¹

Although the law provides that a homicide committed...