Com. v. Cannon

• Decision Date: 17 July 2007
• Docket Number: SJC-09186.
• Citation: 869 N.E.2d 594,449 Mass. 462
• Parties: COMMONWEALTH v. Damon J. CANNON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

869 N.E.2d 594

449 Mass. 462

COMMONWEALTH v. Damon J. CANNON.

SJC-09186.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued January 5, 2007.

Decided July 17, 2007.

Greg T. Schubert for the defendant.

Julia K. Holler, Special Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, & COWIN, JJ.

MARSHALL, C.J.

In the early hours of April 19, 2001, the victim, a dealer in illegal drugs, was shot to death in his apartment during an incident involving the defendant and two other men. The defendant was indicted for murder in the first degree, armed robbery,¹ attempted armed robbery, and unlawful possession of a sawed-off shotgun unconnected to the shooting.

At trial the Commonwealth sought to prove the murder charge based on theories of extreme atrocity or cruelty and felony-murder (the armed robbery or attempted armed robbery constituting the underlying felony), proceeding against the defendant on both principal and joint venture liability. The defendant pursued an alibi defense. The jury convicted the defendant of murder in the first degree based on both felony-murder (attempted armed robbery) and extreme atrocity or cruelty.² The jury did not specify whether they did so based on principal or joint venture liability.

On appeal the defendant claims that the Commonwealth's evidence was insufficient to prove murder in the first degree under the doctrine of felony-murder, whether on a theory of principal or joint venture liability.³ Specifically, he argues that the Commonwealth failed to prove that he shared an intent with his cohorts to rob the victim or that he knew that one of his cohorts was armed.

We conclude that the evidence was sufficient to warrant a finding of murder in the first degree based on the defendant's joint venture participation in an attempted armed robbery, but was insufficient to prove his guilt under the theory of extreme atrocity or cruelty on that basis. We also conclude that the evidence of principal liability (under either theory) was insufficient. We therefore reverse the defendant's conviction of murder in the first degree because we cannot know whether any juror based the verdict on a legally unsupported theory. See Commonwealth v. Plunkett, 422 Mass. 634, 635, 664 N.E.2d 833 (1996).

1. Facts. We summarize the evidence at trial in its light most favorable to the Commonwealth, Commonwealth v. Salemme, 395 Mass. 594, 595, 481 N.E.2d 471 (1985), reserving certain details for discussion in connection with the issues raised.

The victim sold marijuana from his third-floor apartment, where he lived with his girl friend, Kerry Murphy. The defendant was a regular customer of the victim and was known to Murphy.⁴ There was no remote entry buzzer at the front door of the building where the victim and Murphy lived and therefore no remote access by which to admit customers or other visitors. A resident had to open the front door to the building personally when summoned by a visitor. The victim's practice when hearing the doorbell was to look down from the balcony of his apartment to identify the visitor, and then either throw the front door keys down to the visitor waiting at the building entrance, or go downstairs himself to open the door.

At approximately midnight on the night of the killing, two witnesses who were seated in an automobile outside the apartment building saw a reddish Toyota Camry automobile arrive and park in front of the building, out of which three men emerged, their heads covered by hats or hoods. Two of the men immediately entered the building (the front door to the building was likely propped open with a piece of wood as, Murphy testified, it was from time to time) and proceeded up the stairs while the third man, "staying by the bell," appeared to ring the bell. He then joined the others inside.

In the apartment, Murphy was awakened in her bedroom by the sound of men's voices in the living room.⁵ She testified that she heard the voices of "more than one" person, other than the victim. She identified one voice as that of the defendant, asking to buy drugs: "I don't know. An ounce." She then heard someone else — she did not recognize the voice — say, "Run him. Run him." Murphy testified that she understood the phrase to mean "rob him."⁶

Immediately thereafter, Murphy testified, she heard three to four gunshots.⁷

She ran down the hall toward the living room and caught sight of an African-American man wearing dark-colored clothes "duck[ing]" as he ran out the apartment's front door. She saw the defendant standing in the living room looking "surprised and scared." Murphy testified that she and the defendant stared at each other, eye to eye, for approximately fifteen seconds before the defendant fled, trying to shut the apartment door behind him. She did not see the defendant's hands or whether he was holding a gun. The victim was lying bleeding on the floor with his own gun lying next to him.⁸ He had been shot in the right wrist and twice in the neck.⁹

The two witnesses in the automobile outside the building heard shots from inside. A resident on the third floor of the apartment building awoke to the sound of gunshots and heard different voices saying, "Let's go," three times, followed by the sound of people (he could not say how many) running down the stairs.¹⁰ He heard an automobile "screeching" away approximately forty seconds later.¹¹ A resident in a nearby building, with windows facing the victim's apartment building, testified that she heard three shots and then saw three men get into a burgundy-colored automobile and "fly" away without turning on the headlights.

Murphy telephoned 911 and then concealed the victim's gun. When asked by the 911 operator who had done the shooting, Murphy replied that she did not know; she did not identify the defendant.¹² She also initially told the police that she did not know the identity of the victim's assailants. Murphy later left the apartment with the police, taking with her the victim's wallet, which she initially did not show to the police.¹³ She testified that at the time she was in a state of shock, and could not say why she had hidden the victim's gun or taken his wallet.

At trial Murphy testified that she originally had refrained from telling the police that the victim dealt in illegal drugs because she did not know that the victim had been killed, she "was scared that he would go to jail," and she was "scared for [her] life." After learning of the victim's death, Murphy told the police that the victim had been selling marijuana from the apartment. She also then told the police for the first time that she had heard the defendant's voice in the apartment shortly before the shooting, and had seen him in the apartment after the victim had been shot.

Police recovered four spent .38 caliber bullets, two from the apartment and two from the clothes and body of victim. A ballistics expert testified that three of the bullets were fired from the same .38 caliber weapon; the fourth bullet, recovered "lying on the rug" in the apartment, was consistent with having been fired by the same weapon.

The police discovered a trail of blood through the building and "smeared on the walls" in the stairwell. A deoxyribonucleic acid (DNA) test of the blood conducted one and one-half years after the shooting linked the blood to Corinthian "Calvin" Housen. Two cousins of the defendant identified Housen from a photographic array as someone with whom the defendant "hung around."¹⁴

The defendant was arrested the day after the shooting at the home of his cousin, who lived in an apartment building on the same street as the victim (approximately 150 yards away).¹⁵ Police discovered the defendant hiding in the bedroom of his cousin's son and, during a search of that room, recovered a sawed-off shotgun from the closet. When arrested, the defendant was checked by the police but had no cuts, scratches, or other wounds.

2. Required finding of not guilty. The defendant claims that there was insufficient evidence for the jury to find beyond a reasonable doubt that he was the principal, i.e., the shooter, or that he was a joint venturer in an attempted armed robbery. We address each theory in turn, reviewing the defendant's claims under the familiar standard: "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" (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

We consider first the sufficiency of the evidence to convict the defendant of murder in the first degree on a theory of principal liability. The Commonwealth argues that the jury could infer that the defendant fired the shots at the victim in an attempt to rob him at "Housen's exhortation to `run him,'" pointing to evidence that the exhortation was followed almost immediately by gunshots; that (other than the victim) Housen, not the defendant, was injured; that Murphy saw only two people in the apartment; and that one neighbor in the building heard what sounded like two people "almost crashing" down the stairs.

We have carefully reviewed all of the evidence before the jury and conclude that the evidence, collectively, was insufficient for the jury to find beyond a reasonable doubt that the defendant was the shooter. Rather, it is just as likely that Housen or a third man was the shooter. See Commonwealth v. Fancy, 349 Mass. 196, 200, 207 N.E.2d 276 (1965) ("When the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof").

First, there is no direct evidence that the defendant held or fired a gun. It is reasonable to infer that there was sufficient time for the third man to join the first...