Com. v. Nichypor

Decision Date20 December 1994
Citation419 Mass. 209,643 N.E.2d 452
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Murray A. Kohn (Elliot M. Weinstein with him), Brighton, for defendant.

Margaret J. Perry, Asst. Dist. Atty., for Commonwealth.


ABRAMS, Justice.

Convicted of murder in the first degree by reason of extreme atrocity or cruelty and felony-murder, see G.L. c. 265, § 1 (1992 ed.), the defendant appeals. The defendant's conviction of murder in the first degree was based on joint venture. 1 The defendant claims that the judge improperly: (1) instructed the jury on joint venture; (2) refused to instruct the jury on manslaughter; and (3) failed to instruct the jury on the humane practice rule. The defendant also asks that we exercise our power under G.L. c. 278, § 33E (1992 ed.), and enter a lesser degree of guilt. We affirm the conviction and decline to exercise our power under § 33E in favor of the defendant.

I. Facts. We set forth the facts in the light most favorable to the Commonwealth. Commonwealth v. Burnett, 417 Mass. 740, 741, 632 N.E.2d 1206 (1994). On September 28, 1988, the defendant telephoned Kevin Pierce. The two men talked about "rolling a fag" that evening. Shortly after their telephone conversation, the defendant and Pierce went to a restaurant in Gloucester, accompanied by Joshua Halbert. Pierce then telephoned the victim, David McLane. Pierce told the defendant and Halbert that McLane was homosexual.

McLane picked the three men up and drove them to his apartment in Gloucester. The four men drank some alcohol and watched pornographic movies at McLane's apartment. During the movie, Halbert and Pierce went into the kitchen. The defendant remained in the living room with McLane. When Halbert and Pierce reentered the room, Pierce said that he, Halbert, and the defendant were homosexual. McLane, who was sitting on a couch still watching the television, asked Halbert, "Josh, what do you want to do?" Interpreting the question as a sexual overture, Halbert responded, "I'm not into that stuff." Then Pierce approached the victim from behind and locked his arm around McLane's neck. Pierce choked the victim until the victim's face turned purple. During this struggle, the defendant "threw one punch" at the victim, and Halbert clubbed the victim in the head and groin with an empty whisky bottle stating, "You're going to get hurt, cause I'm not queer."

Halbert then pulled a razor blade from his back pocket and cut the victim's throat several times. Pierce went into the kitchen and grabbed a steak knife, which he thrust into the victim's left temple. Halbert ran to the kitchen and grabbed a second knife, which he placed on the couch. Either Pierce or Halbert picked up the second knife and thrust that through the victim's left temple. One knife was flush with the skin surface with its tip protruding from the right side of the victim's neck; the other knife was out approximately three inches from the skin on the left temple. Pierce repeatedly said, "Die faggot. Die faggot." The victim was "making strange noises." Pierce told the defendant to put a cushion over the victim's face to keep him quiet and muffle his moans. In compliance, the defendant placed a couch cushion over the victim's face. All three men then knelt down in the victim's blood and prayed for forgiveness.

After the attack, the defendant, Pierce, and Halbert took a framed, uncut sheet of dollar bills and a box of coins from the apartment. The defendant took a share of the stolen property. The three men also tried to remove any fingerprints they left in the apartment. One of the men found the victim's automobile keys. After being asked by Pierce and Halbert to drive the victim's automobile, the defendant got into the driver's seat but could not start the automobile. The three men then left the scene on foot. Several days after the killing the police arrested the defendant. The defendant gave a signed statement to the police. Occult blood was found on the defendant's hands, forearms, and the pants he wore on the night of the killing, as well as on the driver's side of the victim's automobile.

II. Joint venture and extreme atrocity and cruelty. The defendant's brief suggests that he could not be found guilty of murder in the first degree because he was not a participant in the crime. The defendant argues that he was present and in fear for his life, but that he was not responsible for the murder because he did not act "with a shared criminal intent to render aid, assistance, or comfort to Halbert and Pierce." He asserts that the judge's instructions on joint venture were erroneous and his conviction for murder in the first degree must be reversed. We do not agree.

There was ample evidence from which a jury could conclude that the defendant was a joint venturer in the murder by extreme atrocity or cruelty and by felony-murder. "A joint venturer is 'one who aids, commands, counsels, or encourages commission of a crime, while sharing with the principal the mental state required for the crime.' " Commonwealth v. Daughtry, 417 Mass. 136, 138, 627 N.E.2d 928 (1994), quoting Commonwealth v. Soares, 377 Mass. 461, 470, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). The evidence permitted the jurors to determine that the defendant was ready, willing, and able to assist Pierce and Halbert in their criminal assault on the victim. The jury could conclude from the evidence that the defendant was present, saw the escalating violence, and willingly helped his coventurers. See Commonwealth v. Bianco, 388 Mass. 358, 366, 446 N.E.2d 1041, S.C., 390 Mass. 254, 454 N.E.2d 901 (1983).

There is no error in submitting to the jury the issue of the defendant's guilt based on extreme atrocity or cruelty. The defendant was present in circumstances that would lead a reasonable person to believe that the victim was experiencing pain. His continuing participation in the crime with this knowledge constitutes cruelty. Commonwealth v. Podlaski, 377 Mass. 339, 346, 385 N.E.2d 1379 (1979) ("The victim's extensive and serious injuries certainly warranted a finding that whoever participated in the beating of the victim did so with extreme atrocity or cruelty" [citations omitted] ).

The defendant's conviction could be affirmed solely on extreme atrocity or cruelty. "Where a crime can be committed in any one of several ways ... [t]hen the defendant should be convicted if it is proved that he committed the crime in any of those ways." Commonwealth v. Chipman, 418 Mass. 262, 270 n. 5, 635 N.E.2d 1204 (1994), quoting Commonwealth v. Dowe, 315 Mass. 217, 219-220, 52 N.E.2d 406 (1943). Both parties, however, have focused on the felony-murder theory of the defendant's conviction and we now address that issue.

III. Felony-murder instruction. The judge denied the defendant's request for an instruction that if the jury found that his two coventurers hatched a secret plan unknown to the defendant to murder the victim during the agreed robbery, then they could not convict the defendant as a joint venturer of murder in the first degree by reason of felony-murder. 2 In substance, the judge instructed the jury that regardless whether a separate and independent plan was formulated by Halbert and Pierce to kill the victim, if the killing occurred during the course of the robbery, and the robbery posed an inherent risk to human life, then, if the jurors concluded that the defendant was a joint venturer in that felony, the defendant could be convicted of murder in the first degree by reason of felony-murder. 3

The defendant challenges the judge's instruction on felony-murder on two grounds. First, the defendant argues that his intent to engage in unarmed robbery was not transferrable to the killing under the felony-murder doctrine if Pierce and Halbert's murder plan was not a foreseeable consequence of the unarmed robbery. Second, the defendant takes the position that an independent plan to kill between his joint venturers breaks the causal link between the underlying felonious joint venture and the murder.

In Commonwealth v. Matchett, 386 Mass. 492, 502, 436 N.E.2d 400 (1982), we said that the felony-murder rule under G.L. c. 265, § 1, "does not serve to transform a death, without more, into a murder." The Commonwealth still must establish the malice aforethought required for murder, but the felony-murder rule substitutes the intent to commit the underlying felony for the intent required for the conviction of murder in the first degree. See Commonwealth v. Matchett, supra at 502, 436 N.E.2d 400; Commonwealth v. Watkins, 375 Mass. 472, 486-487, 379 N.E.2d 1040 (1978); Commonwealth v. Devlin, 335 Mass. 555, 567, 141 N.E.2d 269 (1957); Commonwealth v. Gricus, 317 Mass. 403, 412, 58 N.E.2d 241 (1944); Commonwealth v. Venuti, 315 Mass. 255, 258, 52 N.E.2d 392 (1943); Commonwealth v. Chance, 174 Mass. 245, 252, 54 N.E. 551 (1899). We also have said that only felonies which are inherently dangerous to human life justify application of the felony-murder rule. See, e.g., Commonwealth v. Moran, 387 Mass. 644, 651, 442 N.E.2d 399 (1982) (because unarmed robbery is "not inherently dangerous to human life," a jury must conclude that in agreeing to participate in the unarmed robbery, "the defendant consciously disregarded risk to human life"). "Where ... the acts which constitute felonious conduct do not possess a sufficient danger to human life to justify the application of the doctrine of common law felony-murder, the doctrine is inapplicable because there is a failure to establish the requisite state of mind from the forming of the intention to commit the felony." Commonwealth v. Matchett, supra, 386 Mass. at 507, 436 N.E.2d 400, quoting Commonwealth v. Bowden, 456 Pa. 278, 287, 309 A.2d 714 (1973) (Nix, J., concurring).

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