Com. v. Moran

Citation387 Mass. 644,442 N.E.2d 399
PartiesCOMMONWEALTH v. Timothy S. MORAN (and three companion cases 1 ).
Decision Date18 November 1982
CourtUnited States State Supreme Judicial Court of Massachusetts

John B. DeRosa, North Adams (David E. O'Connor & Michael J. Ripps, North Adams, with him), for Timothy S. Moran.

David O. Burbank, Pittsfield, for Matthew A. Chenail.

Daniel A. Ford, Asst. Dist. Atty., for the Commonwealth.

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

O'CONNOR, Justice.

The defendants appeal from convictions, following a jury trial, of murder in the first degree and unarmed robbery. The murder convictions were based on the felony-murder doctrine. The defendants argue that that doctrine, as it has previously been applied in this Commonwealth, is unconstitutional and therefore that it was error for the judge to instruct the jury on felony-murder. We hold that the doctrine is constitutional. However, we examine the felony-murder doctrine as it applies to the common law felony of unarmed robbery, and hold that it was error to instruct the jury that the malice necessary to convict of murder is supplied solely by participation in an unarmed robbery. Accordingly, we reverse the murder convictions. We also reverse the unarmed robbery convictions on the ground that severance of the trial of the defendants was required. We affirm the denial of Moran's motions for required findings of not guilty.

We recite some of the facts that the jury could have found, reserving others for discussion in conjunction with specific issues raised. The defendants briefly conversed with the victim, William Wronski, outside a bar in Adams on the evening of August 14, 1980. Following that conversation, Wronski and the defendants entered the bar, and Wronski bought them one or more drinks. Wronski left the bar and walked up the street to his pick-up truck. The defendants left the bar and followed Wronski up the street. There was a confrontation at the truck. One or both defendants hit Wronski several times about the head. The defendants placed Wronski in the cab of his truck.

Wronski was intoxicated and had recently eaten a full meal. Because of this intoxication, the blows to his head, and the position of his body in the truck, Wronski vomited some time that night, aspirated the vomit, and was asphyxiated. His body was discovered in the truck the next morning. Wronski's wallet, containing no money, was found in a nearby river a day later.

1. Sufficiency of the evidence. At the close of the Commonwealth's case, Moran moved for required findings of not guilty on the charges of unarmed robbery and murder. The motions were denied, and Moran appeals, contending that the evidence introduced by the Commonwealth was insufficient for the jury to conclude that he intended to take or did take Wronski's wallet, or that he formed such an intent before or during the assault. Based on these contentions, Moran argues that he could not be guilty of either robbery or felony-murder predicated on robbery.

Robbery may be punished more severely than larceny from the person. Compare G.L. c. 265, § 19, with G.L. c. 266, § 25. The principal policy served by this greater punishment is deterrence of the use of force (and the accompanying risk to human life) to obtain money or other property. See M.C. Bassiouni, Substantive Criminal Law 336 (1978). This policy is not served where the intent to steal is not formed until after the assault. We conclude, therefore, that where the intent to steal is no more than an afterthought to a previous assault, there is no robbery. See Commonwealth v. Rego, 360 Mass. 385, 274 N.E.2d 795 (1971); Commonwealth v. Novicki, 324 Mass. 461, 464, 87 N.E.2d 1 (1949); Commonwealth v. Weiner, 255 Mass. 506, 509, 152 N.E. 359 (1926). We hold, however, that there was sufficient evidence to warrant a finding that the intent to steal was not an afterthought.

Evidence of the following facts was admitted against Moran as part of the Commonwealth's case to prove his participation in the robbery. On the evening of his death, Wronski had at least $70, which he had put into his wallet, and with which he bought one or more drinks for the defendants in the bar. After Wronski had left the bar and had walked toward the truck, Moran emerged from the bar and told Chenail to go and get Wronski because he owed them another drink. Chenail and Moran then both jogged after Wronski. Two witnesses driving by saw someone wearing clothing like that worn by Moran, punching another person inside the truck. Wronski's body was found the next morning, and his wallet without money was found in a nearby river a day later.

Moran argues that this evidence shows only that he had an opportunity to take Wronski's wallet and does not permit an inference that he either intended to or did take it, or that he formed such an intent before or during the assault. We disagree. Criminal intent generally can be proved only by inferences from facts, and those inferences need only be reasonable. Commonwealth v. Casale, 381 Mass. 167, --- - ---, Mass.Adv.Sh. (1980) 1711, 1717-1718, 408 N.E.2d 841. The evidence warranted inferences that Moran knew Wronski had money, that he directed Chenail to stop Wronski in order to obtain more to drink, that he assaulted Wronski with the intent to take his money, and that he took the money, either as principal actor or as joint venturer with Chenail. See Commonwealth v. Ambers, 370 Mass. 835, 839, 352 N.E.2d 922 (1976). Here, as in Commonwealth v. Blow, 370 Mass. 401, 407, 348 N.E.2d 794 (1976), the evidence was sufficient for the jury to "find that [the defendants] ... formed a plan to rob [the victim], or had, at least, an understanding to take advantage of an intoxicated [man] that encompassed a probability of robbery." We hold that the evidence was sufficient to satisfy a rational trier of fact beyond a reasonable doubt of each element of the crime of robbery. Commonwealth v. Toney, 385 Mass. 575, 582, 433 N.E.2d 425 (1982). Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). Moran's motions for required findings of not guilty of unarmed robbery and of murder based on the felony-murder rule, grounded on the contention that there was insufficient evidence of unarmed robbery, were correctly denied.

2. Constitutionality of the felony-murder rule. Both defendants were tried and convicted of murder based solely on the application of the felony-murder rule. They objected to the judge's instructing the jury on felony-murder, arguing that felony-murder "as structured in Massachusetts" is unconstitutional. The defendants' argument is based on Sandstrom v. Montana 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In that case the defendant was convicted of "deliberate homicide," in that he "purposely or knowingly" caused a death. Id. at 512, 99 S.Ct. at 2453. The defendant's purposeful state of mind with respect to the death was the critical issue. Id. at 520-521, 99 S.Ct. at 2457-58. The jury were instructed that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts." Id. at 513, 515, 99 S.Ct. at 2453, 2454. In reversing the conviction the Supreme Court held that this charge violated the Fourteenth Amendment's requirement that the State prove every element of a crime beyond a reasonable doubt. Id. at 524, 527, 99 S.Ct. at 2459, 2461. The defendants here contend that the felony-murder rule violates this constitutional requirement because it presumes the mental state required for murder from the intent required for the underlying felony.

The felony-murder rule is that a homicide committed in the commission or attempted commission of a felony is murder. The rule is defined by common law and is the law of this Commonwealth. Commonwealth v. Matchett, 386 Mass. 492, 502, 436 N.E.2d 400 (1982). Commonwealth v. Ambers, 370 Mass. 835, 839, 352 N.E.2d 922 (1976). Commonwealth v. Rego, 360 Mass. 385, 395, 274 N.E.2d 795 (1971). 2 The defendants argue that murder is an unlawful killing with malice aforethought, Commonwealth v. Campbell, 375 Mass. 308, 312, 376 N.E.2d 872 (1978); Commonwealth v. Amazeen, 375 Mass. 73, 80, 375 N.E.2d 693 (1978); Commonwealth v. Webster, 5 Cush. 295, 304 (1850), and that malice aforethought consists of unexcused intent to kill, to do grievous bodily harm, or to do an act creating a strong and plain likelihood that death or grievous harm will follow, Commonwealth v. Huot, 380 Mass. 403, --- Mass.Adv.Sh. (1980) 977, 982, 403 N.E.2d 411; Commonwealth v. Chance, 174 Mass. 245, 252, 54 N.E. 551 (1899). The defendants contend that, by conclusively presuming one of these three intentions, the felony-murder rule relieves the Commonwealth of proving an essential element of murder, in violation of the Fourteenth Amendment to the United States Constitution and contrary to Sandstrom.

We have said that "[t]he 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, supra. This statement suggests that malice aforethought is not an essential element of murder in the circumstances of a homicide occurring in the course of a felony. See People v. Aaron, 409 Mich. 672, 740-742, 299 N.W.2d 304 (1980) (Ryan, J., concurring in part and dissenting in part) ("Malice has nothing to do with common-law felony murder; it is not an element of the crime, and is not properly considered by the jury." Id. at 742, 299 N.W.2d 304). We have also held, however, that felony-murder does require malice aforethought. Commonwealth v. Gricus, 317 Mass. 403, 412, 58 N.E.2d 241 (1944). See Commonwealth v. Balliro, 349 Mass. 505, 512, 209 N.E.2d 308 (1965). In Commonwealth v. Madeiros, 255 Mass. 304, 310, 315, 151 N.E. 297 (1926), we approved a jury instruction that "[w]here a defendant is engaged in the commission or attempted commission of some crime of...

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