Com. v. Fickett

• Citation: 403 Mass. 194,526 N.E.2d 1064
• Parties: COMMONWEALTH v. Richard A. FICKETT.
• Decision Date: 10 August 1988
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1064

526 N.E.2d 1064

403 Mass. 194

COMMONWEALTH v. Richard A. FICKETT.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued May 2, 1988.

Decided Aug. 10, 1988.

Wendy Sibbison, Northampton, for defendant.

William T. Walsh, Jr., Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

WILKINS, Justice.

About 6 P.M., on December 27, 1980, a police officer found the body of John Devine lying on the side of a road in Agawam. Devine had recently died from two bullet wounds to the back of his head. On January 3, 1981, the police arrested the defendant and one David Morales for Devine's murder.

There was evidence that the victim had been shot by a handgun owned by Morales. There was also evidence that, on the day of his death, the victim and the defendant had spent several hours drinking at various bars in Hampden County. At the end of their travels, the victim and the defendant went to Morales's property in West Springfield, where Morales lived and also operated a motor vehicle repair service. The circumstances pointed to the possibility that Morales and the defendant acted together to take the victim's money and to kill him. The evidence, however, also permitted the conclusion that Morales or the defendant committed the crimes alone. At trial there was a sharp conflict between the testimony of Morales and the defendant as to how the victim reached Agawam and was killed.

The defendant was indicted and convicted of murder in the first degree, armed robbery, and assault and battery committed in Agawam. ¹ Represented by new counsel on appeal, the defendant raises numerous challenges to his convictions, and he further challenges the denial of his motion for a new trial. We conclude that the defendant's convictions cannot stand. Among the theories under which the armed robbery and the murder indictments were given to the jury was that Morales carried the murder weapon, shot the victim, and took his money while the defendant was acting as an accessory or joint venturer. There was no evidence presented during the Commonwealth's case in chief to show that the defendant knew Morales had a gun with him. Thus, as we shall explain, the murder and armed robbery convictions must be reversed. In discussing issues that may arise again on retrial, we note another error that would have required reversal of all three convictions in any event.

We set forth briefly sufficient facts to provide a background for our discussion of the issues. In the middle of the afternoon of December 27, 1980, a cabdriver picked up the defendant and the victim at a bar in Springfield. In the cabdriver's opinion, they both were intoxicated. They went successively to bars in Agawam, Southwick, and West Springfield. The victim, who was paying for all the drinks, had a substantial sum of money that the defendant wanted. In the course of these travels, the defendant spoke with Morales by telephone and told him the victim was a good target. Morales expressed an interest in joining with the defendant to take the victim's money. The cabdriver left the defendant and the victim at the bar in West Springfield, from which somewhat later they walked to Morales's house.

Morales and the defendant both testified that the other, acting alone, had killed the victim. Morales testified that the defendant stole his gun, loaded the victim into a truck owned by a customer of Morales, and drove off without Morales's permission. The defendant returned about fifteen to twenty minutes later, threw the gun on the table, took out a roll of bills, gave Morales $50, and said he had killed a man. There was other evidence that tended to show the defendant's guilt.

The defendant gave a statement to the police that tended to exonerate himself and to point the finger at Morales. His testimony at trial in large measure followed the same pattern. Although he had initially been interested in stealing the victim's money, he abandoned that project when the victim gave him $100. He told Morales that he had changed his mind. He did, however, go to Morales's property with the victim. There, according to the defendant, he told Morales that he did not want to have anything to do with robbing the victim. Morales agreed to drive the defendant home or to a bar. All three entered the truck with Morales driving. In Agawam Morales got out, pulled the victim from the truck, beat him, shot him twice, and took his money. He gave the defendant $50.

1. One theory on which the judge submitted the indictments of murder and of armed robbery to the jury was that the defendant participated in a joint venture during which Morales carried and used the gun. It was essential to the proof of this theory of guilt that the Commonwealth establish beyond a reasonable doubt that the defendant knew Morales had a gun with him. "Our cases concerning accessorial responsibility for the possession of a weapon by another have involved circumstances in which the person not in possession of the weapon knew that the other person had a weapon." Commonwealth v. Watson, 388 Mass. 536, 544, 447 N.E.2d 1182 (1983), S.C., 393 Mass. 297, 471 N.E.2d 88 (1984). Thus, the defendant could not properly be found guilty of the felony of joint venture armed robbery or of joint venture felony-murder with armed robbery as the underlying felony unless, at the close of the Commonwealth's case, the evidence warranted a finding beyond a reasonable doubt that the defendant knew that Morales had a gun. See Commonwealth v. Grant, 391 Mass. 645, 648-649, 464 N.E.2d 33 (1984); Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

The Commonwealth does not argue that the defendant has not properly raised this issue for appellate review. At the close of the Commonwealth's case, the defendant filed a generalized motion for a required finding of not guilty on all charges. He did not specifically argue that he was entitled to a required finding on so much of the indictments as charged him with joint venture armed robbery or murder based on the theory of joint venture felony-murder (based on armed robbery). Certainly the defendant was not entitled in all respects to required findings of not guilty on the indictments charging armed robbery and murder because there was evidence that would have warranted guilty verdicts on these indictments on other theories. Even if the defendant did not preserve his rights in the most complete manner, the point was adequately preserved so that, quite apart from our duty under G.L. c. 278, § 33E (1986 ed.), we have before us the issue whether the evidence was sufficient to warrant verdicts on the murder and armed robbery indictments on each of the joint venture theories on which the case went to the jury. If, as we conclude, there was insufficient evidence to justify submission of the case to the jury on any of these theories, there must be a new trial because we do not know the theory or theories on which the jury reached their verdicts of guilty on these indictments.

The Commonwealth's brief does not respond to the defendant's contention in his brief that no evidence permitted a finding that the defendant knew Morales was armed when they left Morales's garage with the victim. The Commonwealth points to evidence warranting a finding of deliberate premeditated murder with the defendant being the shooter, and to evidence of unarmed robbery and thus of a felony-murder based on unarmed robbery. Because of this evidence the motions for required findings of not guilty on the relevant charges could not properly have been allowed in full. But we have found no evidence that would have warranted a finding that the defendant knew that Morales had a gun with him on the fatal trip. The convictions for murder and armed robbery, therefore, must be vacated, and the case remanded for retrial on those theories of guilt which were established on the evidence as permissible bases of convictions of those crimes. ²

We add that there was no evidence that would have warranted a finding beyond a reasonable doubt that the defendant shared with Morales a state of mind that would have justified a finding of his guilt of murder on the theory of joint venture premeditated murder. Such evidence is required to prove joint venture premeditated murder. See Commonwealth v. Mandile, 403 Mass. 93, 102, 525 N.E.2d 1322 (1988). ³ On an alternative theory, there was evidence that would have warranted a finding that the defendant himself killed the victim with deliberate premeditation. However, because the evidence did not warrant a conviction on joint venture premeditated murder, the defendant's motion for a required finding on the indictment for murder should have been allowed to that extent.

The defendant now may be retried for murder in the first degree only on the theory that he fired the fatal shots (subject to a possible problem discussed below) and on the theory of joint venture felony-murder with unarmed robbery as the underlying felony. ⁴ In the latter instance, the Commonwealth would have to establish that the manner of execution of the unarmed robbery demonstrated the defendant's conscious disregard of the risk to human life. See Commonwealth v. Moran, 387 Mass. 644, 651, 442 N.E.2d 399 (1982). As to the former theory, the evidence would have warranted a guilty verdict on the theory of premeditated murder in the first degree. But the Commonwealth's right to retry the defendant on the theory that he fired the fatal shots may be foreclosed by the jury verdict finding the defendant not guilty of carrying a firearm on his person without authority at Agawam on December 27, 1980 (G.L. c. 269, § 10 [a ] [1986 ed.] ). See Ashe v. Swenson, 397 U.S. 436, 443-444, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970); Commonwealth v. Lopez, 383 Mass. 497, 498-499, 420 N.E.2d 319 (1981). We point to the question. It has not been argued, and we do not decide it.

2. In considering issues...