Com. v. Claudio

• Decision Date: 14 June 1994
• Citation: 418 Mass. 103,634 N.E.2d 902
• Parties: COMMONWEALTH v. Pedro CLAUDIO, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 902

634 N.E.2d 902

418 Mass. 103

COMMONWEALTH v. Pedro CLAUDIO, Jr.

Supreme Judicial Court of Massachusetts,

Essex.

Argued March 8, 1994.

Decided June 14, 1994.

M. Page Kelley, Committee for Public Counsel Services, for the defendant.

Robert J. Bender, Asst. Dist. Atty. (David W. Duncan, Asst. Dist. Atty., with him), for Com.

Before LIACOS, C.J., and NOLAN, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

A jury in the Superior Court convicted the defendant, Pedro Claudio, Jr., of breaking and entering a dwelling in the night time with intent to commit a felony and assaulting a person lawfully therein, see G.L. c. 266, § 14 (1992 ed.), and murder in the first degree by reason of felony-murder. ¹ The defendant is represented by new counsel on appeal. We reject his argument that an unlawful breaking and entering into a dwelling in the night time, with intent to commit an armed assault on a lawful occupant of the dwelling, which is followed by an actual assault, cannot serve as the predicate for a conviction of murder in the first degree under the felony-murder rule. However, we accept the defendant's contention that omissions in the jury instructions concerning joint venture and the elements of the underlying felony require reversal of both convictions and a new trial.

The jury could have found the following background facts. On the night of June 14, 1991, on Summer Street in Lawrence, two men, one of whom was Gregory Fernandez, began to fight. The defendant, a friend of Fernandez, attempted to keep others from interfering with the fight. In doing so, the defendant became involved in an argument with two other men, Felix Figueroa and Samuel Abreu, the victim, who tried to break up the fight in response to a plea for assistance made by Fernandez's wife. Figueroa threw a rock at the defendant's automobile, breaking a window.

After threatening to return to the place of the fight, the defendant drove away. About twenty minutes later, he returned with six companions. Figueroa, who was outside, ran into the building in which his apartment was located, pursued by the defendant and two of his companions. The victim was already inside the apartment. Figueroa indicated that he and the victim briefly attempted to hold the door (which opened into the apartment) against their pursuers, and then abandoned the attempt. Figueroa ran through the apartment and out a back door, hiding until he saw the defendant and his companions drive away. Shortly after the defendant and his companions pushed their way into Fernandez's apartment, the victim was found near the front door, with the single stab wound to his chest which caused his death.

1. Felony-murder and the merger doctrine. The defendant argues that his conviction of murder in the first degree must be reversed because the felony established by G.L. c. 266, § 14, of breaking and entering a dwelling in the night time with intent to commit armed assault on an occupant of the dwelling, and commission of such an assault, ² cannot predicate a conviction of murder in the first degree by reason of felony-murder. The defendant contends that, when an armed assault culminates in a homicide, even when that assault is preceded by an unlawful breaking and entering into a dwelling in the night time, "the conduct which constitutes the felony [is not sufficiently] 'separate from the acts of personal violence which constitute a necessary part of the homicide itself,' " Commonwealth v. Quigley, 391 Mass. 461, 466, 462 N.E.2d 92 (1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2356, 86 L.Ed.2d 258 (1985), quoting W.R. Lafave & A.W. Scott, Jr., Criminal Law § 71, at 559 (1972), to predicate felony-murder. In essence, the defendant contends that, in these circumstances, the armed assault with which he is charged "merges" with, or is an element of, the homicide. See State v. Branch, 244 Or. 97, 100, 415 P.2d 766 (1966), quoted with approval in Commonwealth v. Quigley, supra ("[C]ourts ... have held that where the only felony committed [apart from the murder itself] was the assault upon the victim which resulted in the death of the victim, the assault merged with the killing and could not be relied upon by the state as an ingredient of a 'felony murder' "). ³ We have not had occasion to consider whether an assault culminating in a homicide, preceded by an illegal breaking and entering into a dwelling in the night time that had as its purpose the commission of an armed assault, satisfies the requirements of the Commonwealth's felony-murder rule. Other courts that have considered the question have differed on whether, on facts like those present here, the felony-murder rule may be applied.

The minority view is represented by People v. Wilson, 1 Cal.3d 431, 82 Cal.Rptr. 494, 462 P.2d 22 (1969), in which the Supreme Court of California considered a case where the defendant, estranged from his wife, broke into his wife's apartment and shot her. The instructions given to the jury permitted them to find that the defendant had entered "with an intent to commit an assault with a deadly weapon and thereby committed a burglary, in the course of which he killed his wife and thus committed first degree felony murder." Id. at 439, 82 Cal.Rptr. 494, 462 P.2d 22. The court concluded that a jury should not be instructed that "the intent to assault makes the [illegal] entry burglary and that the burglary raises the homicide resulting from the assault to first degree murder without proof of malice aforethought and premeditation." Id. at 441, 82 Cal.Rptr. 494, 462 P.2d 22. The court went on to state the following: "To hold otherwise, we would have to declare that because burglary is not technically a lesser offense included within a charge of murder, burglary constitutes an independent felony which can support a felony-murder instruction. ... [We think that] a burglary based on intent to assault with a deadly weapon is included in fact within a charge of murder, and cannot support a felony-murder instruction." Id. See also Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987) (for purpose of Arkansas felony-murder statute, burglary must have objective independent of commission of assault which leads to murder).

The majority, and, in our opinion, better reasoned view is to the contrary. See 2 W.R. LaFave & A.W. Scott, Jr., Substantive Criminal Law § 7.5, at 230 (1986) (collecting cases). In the leading case of People v Miller, 32 N.Y.2d 157, 344 N.Y.S.2d 342, 297 N.E.2d 85 (1973), the New York Court of Appeals rejected the argument that a breaking and entering with the intent to commit an armed assault could not serve as the felony underlying a conviction for felony-murder. Under the Penal Law of New York, only certain enumerated felonies (which, in general, would be classified under the Commonwealth's criminal law as felonies inherently dangerous to human life) may serve as the basis for a charge of felony-murder. Burglary, defined as an unlawful entry into a building with intent to commit a crime in the building entered, is one of these enumerated felonies. Id. at 159, 344 N.Y.S.2d 342, 297 N.E.2d 85. See N.Y.Penal Law § 140.20 (McKinney 1991).

In the Miller decision, the court commented that, in imposing greater punishment for a criminal act committed within a domicil than for the same act committed on the street, the New York Legislature had "recognized that persons within domiciles are in greater peril from those entering the domicile with criminal intent, than persons on the street who are being subjected to the same criminal intent," id. at 160, 344 N.Y.S.2d 342, 297 N.E.2d 85, and that this principle applies with equal force to a person entering a domicil with the intent to commit an assault as it does to the person entering a domicil with the intent to commit, for example, an armed robbery. The court observed that, "[w]hen the assault takes place within the domicile, the victim may be more likely to resist the assault [and] less likely to be able to avoid the consequences of the assault, since his paths of retreat and escape may be barred.... Further, it is also more likely that when the assault occurs in the victim's domicile, there will be present family or close friends who will come to the victim's aid and be killed." (Footnote omitted.) Id. at 160-161, 344 N.Y.S.2d 342, 297 N.E.2d 85. The court concluded that the New York Legislature intended its codification of the felony-murder rule to encompass, as a predicate felony, an unlawful entry with intent to commit armed assault, and that this interpretation of the statutory criminal law was entirely consistent with the rationale underlying the felony-murder rule, which seeks "to reduce the disproportionate number of accidental homicides which occur during the commission of the enumerated predicate felonies by punishing the party responsible for the homicide not merely for manslaughter, but for murder." Id. at 161, 344 N.Y.S.2d 342, 297 N.E.2d 85.

The felony-murder rule in Massachusetts "is defined by common law." Commonwealth v. Moran, 387 Mass. 644, 648, 442 N.E.2d 399 (1982). "We have never delineated exactly which felonies give rise to application of the rule," Commonwealth v. Matchett, 386 Mass. 492, 505, 436 N.E.2d 400 (1982). Instead, we have considered on a case-by-case basis, and sometimes by reference to specific facts, whether a particular felony was (or was committed in such a way as to be) "inherently dangerous to human life." Commonwealth v. Moran, supra, 387 Mass. at 651, 442 N.E.2d 399.

As a general principle, our cases treat those felonies involving the use of a deadly weapon, such as a knife or a loaded gun, as inherently dangerous to human life. See Commonwealth v. Currie, 388 Mass. 776, 785, 448 N.E.2d 740 (1983); Commonwealth v. Watson, 388 Mass. 536, 544, 447 N.E.2d 1182 (1983). Imposition of liability under the felony-murder rule, when a homicide occurs in the commission of an offense while armed, is justified bec...