Com. v. Chase

• Decision Date: 31 July 1997
• Docket Number: No. 95-P-1344,95-P-1344
• Citation: 42 Mass.App.Ct. 749,679 N.E.2d 1021
• Parties: COMMONWEALTH v. Charles M. CHASE, Third.
• Court: Appeals Court of Massachusetts

Page 1021

679 N.E.2d 1021

42 Mass.App.Ct. 749

COMMONWEALTH v. Charles M. CHASE, Third.

No. 95-P-1344.

Appeals Court of Massachusetts Bristol.

Argued Feb. 6, 1997.

Decided May 30, 1997.

Further Appellate Review Denied July 31, 1997.

James L. Sultan, Boston, for defendant.

Shaun S. McLean, Assistant District Attorney, for the Commonwealth.

Before WARNER, C.J., and JACOBS and LAURENCE, JJ.

WARNER, Chief Justice.

The defendant was indicted on charges of first degree murder, motor vehicle homicide, larceny of a motor vehicle, and larceny of property of a value of 250 or more dollars. He pleaded guilty to the larceny charges on the first day of trial. ¹ A Superior Court jury convicted him of second degree felony-murder and motor vehicle homicide. The court dismissed the motor vehicle homicide indictment as duplicative of the murder conviction.

The defendant contends that his felony-murder conviction should be reversed on the following grounds: (1) felony-murder may not be predicated on the crime of larceny; (2) the jury instructions on felony-murder contained errors; (3) the defendant's motion to suppress custodial statements should have been granted; and (4) the Commonwealth destroyed potentially exculpatory evidence. We affirm the conviction.

Evidence presented at trial. We summarize the relevant evidence elicited at trial. On October 22, 1991, the defendant and a Roy Farias went to the Dartmouth Mall in North Dartmouth. There, the defendant broke into Albert Renauld's tool truck, "jimmied" the ignition, and started the engine. According to eyewitnesses, he accelerated quickly, tires squealing. Renauld emerged from the mall and began to run toward the driver's side door of his truck. The defendant drove directly toward Renauld without slowing down. Renauld was struck in the chest and stomach by the door of the truck, thrown into the air, and left lying on the ground. The defendant continued on, driving out of the mall. Renauld died of head injuries the next day.

The defendant was interviewed about the foregoing events on November 7, 1991, at the Dartmouth house of correction. At that time, he was being held in jail on an unrelated matter. He was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and made a written waiver of those rights. A State police officer who interviewed the defendant testified that he gave the following account. He and Farias had driven to the Dartmouth Mall intending to steal a truck. They were looking for tools to steal as well, and chose the victim's truck because it had tool boxes on its side. The defendant broke the truck's window, unlocked the door, entered, broke the ignition off with a claw hammer and pliers, and started the engine. As he began to drive across the parking lot, he saw someone running toward him. He told the police interviewer, "[If] I had a gun I'd have shot him. I wasn't going to stop." As the man kept coming toward him, he yelled "Get the fuck out of the way." The man kept coming and swung a shopping bag at the truck. The defendant hit him with the left front quarter of the truck, and the man rolled backward hitting "what [the defendant] termed the rear view, which [the police interviewer] took to mean the side view mirror of the truck." The defendant then told the police interviewer, "The son of a bitch, if he--He didn't have to stay in front of the truck," and "I just hit the fucking guy. I think he was the owner of the truck." After hitting Renauld, the defendant accelerated and drove around the corner, where he met with his confederate. An acquaintance of the defendant testified that two days after the incident he told her that when the truck's owner came running toward him, he "just gunned it" and ran Renauld down.

Additional facts appear below concerning the defendant's motion to dismiss and his motion to suppress statements he made to the police on November 7, 1991.

1. Felony-murder predicated on the crime of larceny. The defendant, relying on the Supreme Judicial Court's decision in Commonwealth v. Matchett, 386 Mass. 492, 436 N.E.2d 400 (1982), argues that the trial judge impermissibly expanded the existing felony-murder rule by allowing the case to go to the jury on a felony-murder theory predicated on a crime against property. He further argues that if at present the law does not clearly prohibit this application of the felony-murder rule, the law should be clarified or changed to do so.

Prior to Matchett, a case of felony-murder required proof only that "the defendant committed a homicide while engaged in the commission of a felony." Commonwealth v. Matchett, 386 Mass. at 502, 436 N.E.2d 400, citing Commonwealth v. Watkins, 375 Mass. 472, 486-487, 379 N.E.2d 1040 (1978). Noting that the felony-murder rule rests on "the theory that the intent to commit the felony is equivalent to the malice aforethought required for murder," id. at 507, 436 N.E.2d 400, the court reasoned in Matchett that "[f]or this theory to be tenable the nature of the felony must be such that an intent to commit that crime exhibits a conscious disregard for human life, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty." Ibid., quoting from Commonwealth v. Bowden, 456 Pa. 278, 287, 309 A.2d 714 (1973) (Nix, J., concurring).

The Matchett court held that because the underlying felony in that case, extortion, was a crime that could be committed in a manner not inherently dangerous to human life, "when a death results from the perpetration or attempted perpetration of the statutory felony of extortion, there can be no conviction of felony-murder in the second degree unless the jury find that the extortion involved circumstances demonstrating the defendant's conscious disregard of the risk to human life." Id. at 508, 436 N.E.2d 400. In the years following, the holding in Matchett has been extended to crimes other than extortion. See Commonwealth v. Moran, 387 Mass. 644, 648-651, 442 N.E.2d 399 (1982) (unarmed robbery); Commonwealth v. Ortiz, 408 Mass. 463, 466-467, 560 N.E.2d 698 (1990) (unlawful carrying of a firearm in a vehicle), and cases cited.

The defendant, pointing out that no felony-murder conviction in Massachusetts has been predicated on a pure property crime since Matchett, incorrectly contends that no post-Matchett cases approve the application of the felony-murder rule to "pure property crimes." In Commonwealth v. Fickett, 403 Mass. 194, 202, 526 N.E.2d 1064 (1988), for example, the court stated that "[i]f the evidence at retrial warrants a finding that the defendant was guilty of larceny ... instructions would be required on both larceny and on felony-murder in the second degree, coupled with the necessary element that the circumstances must show beyond a reasonable doubt the defendant's conscious disregard of the risk to human life." See also Commonwealth v. Walker, 17 Mass.App.Ct. 194, 196-197, 457 N.E.2d 638 (1983).

The now well established test that a felony must pass before it can be a predicate offense for felony-murder is that "[t]he felony must either (1) be 'inherently dangerous' ... or (2) if not inherently dangerous, be committed in a manner which 'involved circumstances demonstrating the defendant's conscious disregard of the risk to human life.' " Commonwealth v. Catalina, 407 Mass. 779, 785, 556 N.E.2d 973 (1990), quoting from Commonwealth v. Matchett, 386 Mass. at 508, 436 N.E.2d 400. See Commonwealth v. Mello, 420 Mass. 375, 391, 649 N.E.2d 1106 (1995). In the present case, the judge instructed the jury three times that in order to support a conviction of second degree felony-murder, the prosecution must prove beyond a reasonable doubt that the underlying felony was committed with a conscious disregard of the risk to human life.

There was ample evidence from which the jury could have concluded that the defendant's theft of the truck and its contents was committed with a conscious disregard of the risk to human life. The defendant drove off in the stolen truck, tires squealing, saw Renauld running toward him, and continued to drive directly toward Renauld, striking him and throwing him into the air. The fleeing defendant never slowed down. Two days later, he told a friend that when he saw the victim approaching, he accelerated. He also told the police that he had seen a person whom he assumed was the truck's owner coming toward the truck, but that he had no intention of stopping. In view of these facts, the defendant's contention that the danger to human life was not reasonably foreseeable because the predicate felony was larceny lacks any semblance of persuasiveness.

Similarly unpersuasive is the defendant's attempt to analogize the facts of this case to the situation hypothesized in Matchett, where the court questioned whether a driver, who, on his way to receive stolen property, kills a pedestrian en route, has committed felony-murder. 386 Mass. at 507, 436 N.E.2d 400. As the court has stated repeatedly, the facts specific to each case must be assessed when applying the felony-murder rule. Id. at 504, 436 N.E.2d 400. Commonwealth v. Moran, 387 Mass. at 650, 442 N.E.2d 399. Commonwealth v. Claudio, 418 Mass. 103, 108, 634 N.E.2d 902 (1994). In this case, the defendant saw a man running toward the truck he was stealing and continued to drive directly toward him, never slowing down. The danger to human life was evident.

Finally, we decline the defendant's request that we change the law concerning felony-murder. Cf. Burke v. Toothaker, 1 Mass.App.Ct. 234, 239, 295 N.E.2d 184 (1973).

2. The instructions on felony-murder. The defendant contends that the jury charge on felony-murder, to which he did not object at trial, contained errors which created a substantial risk of a miscarriage of justice. See Commonwealth v. Amirault, 424 Mass. 618, 647 n. 21, 677 N.E.2d 652 (1997). He points specifically to the judge's failure to instruct that the...