Com. v. Perez

• Decision Date: 07 October 1983
• Citation: 390 Mass. 308,455 N.E.2d 632
• Parties: COMMONWEALTH v. Luis PEREZ.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 632

455 N.E.2d 632

390 Mass. 308

COMMONWEALTH v. Luis PEREZ.

Supreme Judicial Court of Massachusetts Middlesex.

Argued April 5, 1983.

Decided Oct. 7, 1983.

John F. Palmer, Boston, for defendant.

James W. Sahakian, Asst. Dist. Atty., for the Commonwealth.

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

NOLAN, Justice.

The defendant appeals from convictions of murder in the first degree, armed robbery, arson, and larceny of a motor vehicle, rendered on January 23, 1973. ¹ We find no reversible error. Accordingly, we affirm the judgments.

The Commonwealth presented evidence from which the jury could have found the following facts. The victim, Peter Kyriazopoulos (also known as Peter Poulos), was entertaining Judy Varoski, Maureen Donahue, and a man identified as "George," in the victim's apartment on April 21, 1971. During this visit, "George" took five one thousand dollar bills out of the victim's closet and flashed them in front of the women. George then attempted to kiss Maureen Donahue. The victim became angry and he and George left the apartment for about ten minutes. In this interlude, Varoski grabbed two of the bills from the closet and gave Maureen one of them. The next day, April 22, 1971, Varoski told her erstwhile paramour, Luis Alvarez, about the money. Knowing that his friend, the defendant, needed money, Alvarez mentioned to him that Varoski knew someone who had money. Alvarez, the defendant, and one Tony Mangula, ² met Varoski, and they drove to the victim's apartment building. Discovering that the victim's car was not there, they drove to a bakery where Varoski believed the victim worked. Alvarez said he wanted to know what the victim looked like in case he was there when they broke in later that day. They were informed that the victim had been transferred to another bakery. The four drove back to the victim's apartment building, and Varoski and Alvarez went inside so that Alvarez would know where the victim's apartment was located. When they emerged from the building, the defendant was pointing a gun at a window of the apartment and suggested that he shoot the locks off the window. After Alvarez reminded them that they were going to break in after dark, the defendant abandoned his more dramatic approach, and the four individuals left the area. The four then drove to a bakery in Chelmsford to find the victim, but he was not there. During the journey from Chelmsford to the defendant's home, the four individuals agreed to break into the victim's apartment and steal the money. Varoski's role in the scheme was to get the victim out of the apartment so that the three men would encounter no opposition during the burglary.

At approximately 4:30 P.M. the same day, Alvarez, Mangula, and the defendant met in a white automobile which the defendant drove. Fifteen minutes later they arrived at the victim's apartment building. Mangula waited in the car. Alvarez and the defendant entered the building. The defendant waited behind while Alvarez knocked on the victim's door. Two minutes later the victim opened the door, and the defendant, carrying a rifle, entered the apartment with Alvarez. When the victim attempted to pick up the telephone, Alvarez pulled the telephone cord out of the wall. Alvarez removed the money from the closet. At this point the victim, clad only in his shorts, made some kind of a motion, and the defendant shot him once in the face and again in the head. Between the first and second shots Alvarez told the defendant that the money was fake. As Alvarez was leaving the apartment, he saw the defendant put the rifle to the victim's head. As he turned away, he heard a third shot.

Alvarez returned to the car with the money, and five minutes later the defendant emerged from the building. The defendant said, "The firemen will be here soon," and placed the rifle back in the car. Upon returning to the defendant's home, Alvarez got out of the white Ford and entered the defendant's blue Ford Mustang. He followed the defendant, who stopped at a bridge and threw the rifle into a river. Alvarez then followed the defendant into a wooded area where the defendant set the white car afire.

The Lowell fire department extinguished a fire in the victim's apartment building and discovered the victim's body. The victim died as a result of the three gunshot wounds to his head. Alvarez was arrested and he directed the police to the places where the defendant had discarded the rifle and burned the car. The police discovered the burned car at a nearby garage, though there is no explanation in the record as to how the car was moved from the wooded area to the garage. They subsequently learned that it had been stolen.

The defendant presented evidence from which the jury could have found the following facts. The defendant on April 22, 1971, discussed with Varoski, Alvarez, and Mangula a plan to break into the victim's apartment while the victim was not at home, and steal the victim's money. The group then drove to the victim's apartment building. Varoski and Alvarez alighted from the car and entered the building. Because the victim was not at home, Varoski and Alvarez returned to the car, and the four individuals drove to a bakery where Varoski believed the victim was employed. However, the victim was not there, and they drove to a second bakery under the impression that the victim would be there. Again the victim was not found. At this stage, the group agreed to break into the victim's apartment at 5 P.M. that afternoon. The defendant testified that he never saw a rifle in the car. The group parted company, and Mangula took the defendant's car, a blue Mustang. The defendant ate lunch at a restaurant near his home and returned to his apartment at 2:30 P.M. Two hours later Mangula arrived at the defendant's apartment, alone. At approximately 4:50 P.M. Alvarez drove up to the defendant's apartment house in a white car. Alvarez told his two associates that he had just taken five one thousand dollar bills. Looking at the bills, the defendant laughed and told Alvarez that they were fake, to which Alvarez replied, "Well, I just killed a man for that." The defendant said he did not believe Alvarez. The three men left the defendant's apartment. The defendant and Mangula entered the defendant's car and followed Alvarez who drove the white car. Alvarez drove the car into the woods, disappeared from sight, and returned on foot, rejoining the defendant and Mangula. The defendant never was in the victim's apartment, and he never saw the victim.

1. Instructions to the jury. The judge described in general the indictments against the defendant.

He then turned his attention to the murder indictment. With respect to murder in the first degree, he charged the jury on deliberate premeditation, extreme atrocity and cruelty, and felony murder. He instructed the jury that armed robbery was a felony punishable by imprisonment for life. The judge defined second degree murder as an unlawful killing with malice aforethought. The judge carefully defined the term "malice aforethought." The judge then charged the jury on the joint enterprise and the felony murder doctrines. The judge then instructed the jury on consciousness of guilt and summarized the evidence. He then stated the following: "The sole question, then, it appears, is, have you been convinced beyond a reasonable doubt to a moral certainty that Perez committed these crimes, either by himself or aided and abetted by Alvarez, as Alvarez says he was? If he did, if he was participating with Alvarez, Perez, on the theory of concert of action, must be found guilty. If you have a reasonable doubt that Perez participated in the commission of these crimes, you will, of course, acquit him." Later in the charge, the judge made reference to the dual issues of whether the defendant murdered the deceased or "did participate in the commission of the crime."

After the judge completed his charge, defense counsel took exception to the instructions on joint enterprise. Defense counsel requested that the judge instruct the jury that "although they [Alvarez, Varoski, Mangula, and the defendant] had plans to break and enter, if in fact Alvarez went there without Perez to break and enter and a murder ensued, that Perez would not be guilty of acting in concert because he could have no knowledge that Alvarez was going there to do that act." The judge declined so to charge the jury. The defendant was convicted of murder in the first degree, armed robbery, arson, and larceny of a motor vehicle. On appeal he argues that the judge's instructions concerning joint enterprise presented to the jury an overly broad concept of criminal responsibility, which resulted in the possibility that he was convicted by a jury who were not adequately instructed on the law.

At the outset we point out that "we read 'the charge as a whole, and [do] not ... scrutiniz[e] bits and pieces removed from their context.' " Commonwealth v. Hill, 387 Mass. 619, 624-625, 442 N.E.2d 24 (1982), quoting Commonwealth v. Cundriff, 382 Mass. 137, ---, Mass.Adv.Sh. (1980) 2519, 2535, 415 N.E.2d 172, cert. denied, 451 U.S. 973, 101 S.Ct. 2054, 68 L.Ed.2d 353 (1981). Commonwealth v. Bradshaw, 385 Mass. 244, 278, 431 N.E.2d 880 (1982). We are concerned with the overall impact of the charge upon the jury. Commonwealth v. Little, 384 Mass. 262, ---, Mass.Adv.Sh. (1981) 1818, 1822, 424 N.E.2d 504. Commonwealth v. Sellon, 380 Mass. 220, 231-232, 402 N.E.2d 1329 (1980). Viewing the charge in this light we see no reversible error in it, though we concede that the instructions on joint criminal undertaking were probably unnecessary in light of the evidential posture of this case.

The theory presented to the jury by defense counsel was that the defendant agreed with his three associates to break and enter the victim's apartment while the victim was not at home and steal the victim's money, but that Alvarez went...