Com. v. Griffith

• Decision Date: 09 March 1989
• Citation: 404 Mass. 256,534 N.E.2d 1153
• Parties: COMMONWEALTH v. William J. GRIFFITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1153

534 N.E.2d 1153

404 Mass. 256

COMMONWEALTH v. William J. GRIFFITH.

Supreme Judicial Court of Massachusetts,

Franklin.

Argued Nov. 8, 1988.

Decided March 9, 1989.

Thomas Lesser (William C. Newman, Northampton, with him) for defendant.

Ariane D. Vuono, Asst. Dist. Atty., for the Com.

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

LIACOS, Justice.

The defendant, William J. Griffith, was convicted by a jury of murder in the first degree, attempted armed robbery, illegal possession of a firearm, and using a firearm while committing a felony. ¹ He appeals from the denial of his motion for a new trial and of his motion to set aside the verdict of murder in the first degree and to enter a finding of guilty of a lesser offense. The defendant argues numerous claims of error, each of which we discuss below. We conclude that we shall affirm the judgment of conviction.

We summarize the facts as the jury could have found them.

On the evening of March 28, 1980, the defendant went with his friends, Dawn and David Stowell, to a house in Worcester. At the house, the defendant received a revolver and a bag of marihuana from a friend consumed "a few beers," and shared a gram of cocaine with the friend, while the Stowells waited in the automobile. The defendant rejoined the Stowells and smoked between six and eight "joints" of marihuana with them. They then proceeded to the apartment of the defendant's cousin in Athol. The defendant smoked more marihuana with his cousin and another companion. He changed his clothing, replacing the jacket he was wearing with a green Army jacket. He then announced to his companions that he was going to rob "Bill's Market," an establishment about a block away.

The defendant left the apartment and walked to Bill's Market. He sat in the rain on the steps outside the store, waiting for the customers to leave. The defendant entered the store, showed his gun to the victim, and demanded money. The victim started yelling, and the victim's wife approached the two men. The defendant turned toward the wife, and the victim stepped into a side room. When the defendant turned to look for the victim, the victim's wife went to a telephone in the back to call the police. The victim emerged from a side room with a baseball bat, with which he struck the defendant on the shoulder, head, and arm. The defendant's gun fired, ² and the victim was struck in the head by a single bullet. ³ The victim slumped down to the floor, one hand clutching some paper money.

The defendant went to the cash register and unsuccessfully tried to open it. He returned to his cousin's apartment and related to those there what had transpired at Bill's Market.

1. Intoxication instruction. The defendant was convicted of murder in the first degree based solely on a theory of felony-murder. The underlying felony on which the murder conviction was based was attempted armed robbery. G.L. c. 265, § 1 (1986 ed.). The defendant contends that it was reversible error for the judge to instruct the jury not to consider evidence of the defendant's intoxication on the issue of his specific intent to steal, "an essential element of the crime of robbery." Commonwealth v. Sheehan, 376 Mass. 765, 772, 383 N.E.2d 1115 (1978). In making this argument, the defendant primarily relies on Commonwealth v. Henson, 394 Mass. 584, 476 N.E.2d 947 (1985), which, he says, applies retroactively to this case. The Commonwealth argues, however, that Henson, decided in 1985, is not applicable to this trial, which occurred in 1981. ^3a

In Commonwealth v. Henson, supra at 593, 476 N.E.2d 947 we held that "where proof of a crime requires proof of a specific criminal intent and there is evidence tending to show that the defendant was under the influence of alcohol or some other drug at the time of the crime, the judge should instruct the jury, if requested, that they may consider evidence of the defendant's intoxication at the time of the crime in deciding whether the Commonwealth has proved that specific intent beyond a reasonable doubt."

As of the time of the trial in this case, "the relevance of evidence of voluntary intoxication to the proof of specific intent under the Henson rule had been clearly foreshadowed by our earlier decisions." Commonwealth v. Shine, 398 Mass. 641, 655, 500 N.E.2d 1299 (1986), citing Commonwealth v. Sheehan, supra 376 Mass. at 773-775, 383 N.E.2d 1115 (listing the prerequisites for modification of the pre-Henson rule). The Henson decision, then, did not announce a "new rule" and may be applied retroactively to the case at hand. See Commonwealth v. Ennis, 398 Mass. 170, 175, 497 N.E.2d 950 (1986).

In a felony-murder case, the intent to commit the underlying felony substitutes for the malice element required in an ordinary murder case. Commonwealth v. Matchett, 386 Mass. 492, 502, 436 N.E.2d 400 (1982). In order to convict a defendant of felony-murder, the Commonwealth must prove beyond a reasonable doubt all the elements of the underlying felony. Where attempted armed robbery is the underlying felony, the Commonwealth must prove beyond a reasonable doubt the specific intent necessary to that underlying felony.

While the judge's instruction to the jury precluding them from considering evidence of intoxication was erroneous under Henson, these errors did not create a substantial likelihood of a miscarriage of justice. ⁴ Although there was evidence that the defendant had consumed drugs and alcohol, there was virtually no evidence that this consumption had any effect on the defendant's capacity to form the specific intent to steal, a necessary element of the crime of armed robbery. See Commonwealth v. Fano, 400 Mass. 296, 307, 508 N.E.2d 859 (1987); Commonwealth v. Gil, 393 Mass. 204, 221, 471 N.E.2d 30 (1984). The conduct of the defendant, as related by the prosecution's witnesses at trial, did not reveal any manifestations of intoxication. Commonwealth v. Fano, supra. The defendant had obtained a gun before ingesting any drugs or alcohol and sat outside the store in the rain waiting until all customers and passersby had departed so that there would be fewer witnesses present to identify him. After shooting the victim, the defendant tried to take money from the cash register. In addition, the defendant had told his friends before the incident "that he was going to rob Bill's Market." Additionally, the defendant himself acknowledged at trial that he had entered the store and pulled out his gun "for the purpose of committing an armed robbery." In short, "[t]he evidence of guilt ... was overwhelming." Commonwealth v. Shine, supra 398 Mass. at 655, 500 N.E.2d 1299. The trial judge's charge to the jury on intoxication did not create a substantial likelihood of a miscarriage of justice.

2. Felony-murder. The defendant claims that the judge erred in failing to instruct the jury that the Commonwealth had the burden of proving that the shooting was not accidental. In a nonfelony-murder case, the fact that the shooting was accidental negates the malice element required for murder. Lannon v. Commonwealth, 379 Mass. 786, 790, 400 N.E.2d 862 (1980). However, in a felony-murder case, accident does not negate malice. Commonwealth v. Evans, 390 Mass. 144, 151-152, 454 N.E.2d 458 (1983). "The effect of the felony-murder rule is to substitute the intent to commit the underlying felony for the malice aforethought required for murder." Commonwealth v. Matchett, 386 Mass. 492, 502, 436 N.E.2d 400 (1982). Consequently, assuming proof of specific intent to commit the predicate felony, the fact that the shooting was accidental has no effect on the malice element in a felony-murder case. "A defendant who kills a victim in the commission or attempted commission of a robbery, while the defendant is armed with a gun, is guilty of murder by application of the felony-murder rule.... The fact that, according to the defendant, the gun was discharged accidently is of no consequence." Commonwealth v. Evans, supra 390 Mass. at 151-152, 454 N.E.2d 458. There was no error.

3. Ballistics expert. The defendant, citing Commonwealth v. Seit, 373 Mass. 83, 92, 364 N.E.2d 1243 (1977), asserts that the judge impermissibly permitted the Commonwealth's ballistics expert to state his opinion whether a blow to the defendant's arm could have caused his gun to discharge accidentally. That such an opinion was within the expertise of the expert is a matter within the sound discretion of the trial judge. Id. There was no error. Additionally, even if we assume there was error, it was harmless.

The defendant claimed that he accidentally fired the gun when the victim hit him on the arm with a baseball bat. The Commonwealth's ballistics expert testified that it would have been impossible for the gun to have discharged as a result of a blow on the arm. As discussed above, in a case tried solely under a felony-murder theory, it is of no consequence that the gun allegedly discharged accidentally. See Commonwealth v. Evans, supra 390 Mass. at 152, 454 N.E.2d 458. Even if the jury had credited the ballistics expert's testimony and had found that there was no accident, such a conclusion would have had no bearing on whether the defendant was guilty of felony-murder. ⁵

4. Effective assistance of counsel. The defendant asserts that he must be granted a new trial because he was deprived of effective assistance of counsel. We disagree.

When presented with a claim of ineffective assistance of counsel, we must make "a discerning examination and appraisal of the specific circumstances of the given case to see whether there has been serious incompetency, inefficiency, or inattention of counsel--behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer--and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v....