Com. v. Ortiz

• Decision Date: 16 October 1990
• Citation: 560 N.E.2d 698,408 Mass. 463
• Parties: COMMONWEALTH v. Juan R. ORTIZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 698

560 N.E.2d 698

408 Mass. 463

COMMONWEALTH v. Juan R. ORTIZ.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued May 7, 1990.

Decided Oct. 16, 1990.

John M. Thompson (Linda J. Thompson, Springfield, with him), for defendant.

Elizabeth Dunphy Farris, Asst. Dist. Atty., for the Com.

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

O'CONNOR, Justice.

A jury found the defendant guilty of murder in the second degree as charged in two indictments, based on a felony-murder theory, and of unlawfully carrying a firearm under his control in a vehicle, attempted assault and battery by means of a dangerous weapon on Jose Rodriguez, and unlawful possession of firearm ammunition. The indictment for possession of firearm ammunition was filed with the defendant's consent. The defendant was sentenced for the other crimes and appealed. We transferred the case from the Appeals Court to this court on our own initiative. We now affirm the two convictions of murder in the second degree and unlawfully carrying a firearm in a vehicle. We reverse the conviction of attempted assault and battery by means of a dangerous weapon on Jose Rodriguez.

At the close of the Commonwealth's case, and again at the close of all the evidence, the defendant moved for required findings of not guilty on all the indictments. The judge denied those motions as well as similar postverdict motions. On appeal, the defendant argues that the judge's rulings with respect to the sufficiency of the evidence to support the convictions of murder and assault and battery by means of a dangerous weapon were erroneous.

In reviewing the trial judge's rulings on the motions for required findings of not guilty, we consider whether the evidence, viewed in the light most favorable to the Commonwealth, was sufficient to permit a jury to infer beyond a reasonable doubt the essential elements of the crimes charged. Commonwealth v. Walsh, 407 Mass. 740, 741, 555 N.E.2d 593 (1990). Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979).

The evidence most favorable to the Commonwealth in this case may be fairly summarized as follows. On November 12, 1985, the defendant and his brother, Eddie Ortiz, left their father's apartment in Springfield and got into an automobile to search for Jose Rodriguez. The Ortiz and Rodriguez families had had a longstanding feud. The Ortizes believed that Jose Rodriguez was one of three men who had been at the father's apartment earlier on November 12 with what looked like a handgun. They were looking for Eddie. Eddie and the defendant brought a firearm and some ammunition with them in the automobile. Eddie drove the automobile to the neighborhood in which Rodriguez lived and drove around the block six times hoping to find him. Rodriguez was not found, so Eddie drove the automobile back to his father's apartment. While Eddie was driving, the gun lay fully loaded in the front passenger compartment of the automobile, between the defendant and Eddie.

As the Ortiz vehicle was arriving at the apartment, a police cruiser with two officers in it, with its lights flashing, pulled up behind the vehicle. The driver of the cruiser, Officer Alain Beauregard, got out and approached the driver's side of the Ortiz vehicle. His partner, Michael Schiavina, briefly remained in the police cruiser to use the car radio. Beauregard tried unsuccessfully to open the driver's side door of the Ortiz vehicle, after which he was shot and killed by Eddie. By then, Schiavina had opened the vehicle's passenger door and was trying to pull the defendant from the vehicle. Schiavina was then shot and killed by Eddie. There was evidence that, as the police officers approached the automobile, both the defendant and Eddie reached for the firearm but Eddie grabbed it first. There was no evidence that the defendant fired the gun. After the shootings, the defendant and Eddie fled the scene. The defendant was found several hours later hiding in a tent in the backyard of his sister's home. Eddie committed suicide before he could be taken into custody.

As to the murder indictments, the Commonwealth's theory at trial was that the defendant was guilty of felony-murder because the two homicides took place during the commission of one or more of the following felonies for which the defendant was responsible: unlawfully carrying a firearm in a motor vehicle; attempted assault and battery by means of a dangerous weapon on Rodriguez; attempted assault by means of a dangerous weapon on Rodriguez. By a special verdict, the jury found unlawfully carrying a firearm in a motor vehicle to be the sole predicate felony underlying the two felony-murder convictions.

"As developed by the case law, the felony-murder rule in the Commonwealth imposes criminal liability for homicide on all participants in a certain common criminal enterprise if a death occurred in the course of that enterprise." Commonwealth v. Matchett, 386 Mass. 492, 502, 436 N.E.2d 400 (1982), quoting Commonwealth v. Watkins, 375 Mass. 472, 486, 379 N.E.2d 1040 (1978). In order to invoke the felony-murder rule in this case, the Commonwealth first had the burden to establish that the defendant was a participant in a felonious enterprise. The Commonwealth was required to prove in that regard that the defendant intentionally encouraged or assisted Eddie Ortiz in the commission of a felony and that he did so while sharing with Eddie Ortiz the mental state required for that crime. Commonwealth v. Ambers, 370 Mass. 835, 839, 352 N.E.2d 922 (1976). Commonwealth v. Richards, 363 Mass. 299, 307, 293 N.E.2d 854 (1973). In addition, the Commonwealth had to prove that the homicides occurred in the course of that enterprise. For the killings to have occurred in the course of the only felonious enterprise found by the jury to have been the predicate felony, the unlawful carrying of a firearm in a vehicle, the killings and the felonious carrying need only to have occurred as part of one continuous transaction. It was not necessary for the Commonwealth to show that the homicides occurred while the carrying of the firearm was still in progress, as long as the homicides were connected with and incident to the carrying and as long as the carrying and the homicides took place at substantially the same time and place. It would be enough if the homicides occurred as part of the defendant's effort to escape responsibility for the underlying felony. Commonwealth v. Tarver, 369 Mass. 302, 315-317, 345 N.E.2d 671 (1975). Commonwealth v. Dellelo, 349 Mass. 525, 529-530, 209 N.E.2d 303 (1965). Commonwealth v. Gricus, 317 Mass. 403, 412, 58 N.E.2d 241 (1944). Commonwealth v. Green, 302 Mass. 547, 555, 20 N.E.2d 417 (1939). Commonwealth v. Osman, 284 Mass. 421, 425, 188 N.E. 226 (1933).

In addition, in order for this case to come within the felony-murder rule, the underlying felony--the carrying of a firearm in a vehicle--must be inherently dangerous to human life or the crime actually must have been committed with conscious disregard on the part of the defendant for the risk to human life. Commonwealth v. Carter, 396 Mass. 234, 234-235, 484 N.E.2d 1340 (1985). Commonwealth v. Moran, 387 Mass. 644, 648-651, 442 N.E.2d 399 (1982). Commonwealth v. Matchett, 386 Mass. 492, 502-505, 436 N.E.2d 400 (1982). Also, for the rule to apply, the deaths must have been natural and probable consequences of the felony, id. at 504-505, 436 N.E.2d 400; Commonwealth v. Devlin, 335 Mass. 555, 566-567, 141 N.E.2d 269 (1957), and the felony must have been independent of the homicides, see Commonwealth v. Quigley, 391 Mass. 461, 465-466, 462 N.E.2d 92 (1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2356, 86 L.Ed.2d 258 (1985).

We are satisfied that the evidence was sufficient to warrant the murder convictions. It is clear that the evidence recited above would warrant a finding that the defendant was a joint venturer with his brother, Eddie Ortiz, in carrying a firearm in a vehicle. Furthermore, while it may be fairly arguable that carrying a firearm in a vehicle is not inherently dangerous (especially if the firearm is not loaded), the jury in any event reasonably could have found that the defendant in this case committed that crime with conscious disregard for the risk to human life because of the obvious risk presented by the defendant and his brother's driving around with a loaded .357 Magnum revolver between them looking for an individual with whom their family had a longstanding feud.

There was evidence of the other elements of felony-murder, too. The same evidence that supported a finding of the defendant's conscious disregard for the risk to human life also warranted a finding that homicide was a natural and probable consequence of the felonious carrying of a firearm. Finally, the jury could properly have found that the underlying felony, one that was clearly independent of the homicides in the sense that it was distinct from the acts of violence which resulted in the police officers' deaths, and therefore not offensive to the rule of Commonwealth v. Quigley, 391 Mass. 461, 466, 462 N.E.2d 92 (1984), was sufficiently connected with and incident to the homicides for the felony-murder rule to apply. We note as well the presence of consciousness of guilt evidence, in the form of evidence of flight. We conclude that the evidence was sufficient to warrant the two verdicts of murder in the second degree.

Before confronting the defendant's argument that the evidence was insufficient to warrant his conviction of attempted assault and battery by means of a dangerous weapon on Jose Rodriguez, we address other contentions that the defendant makes with respect to the murder convictions. Although the defendant did not object at trial to the judge's instructions to the jury, he argues on appeal that the judge committed reversible error by failing to instruct the jury that the defendant could not be found guilty of murder on a theory...