Com. v. Plunkett

• Decision Date: 13 May 1996
• Citation: 422 Mass. 634,664 N.E.2d 833
• Parties: COMMONWEALTH v. Thomas J. PLUNKETT, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 833

664 N.E.2d 833

422 Mass. 634

COMMONWEALTH v. Thomas J. PLUNKETT, Jr.

Supreme Judicial Court of Massachusetts Bristol.

Argued Feb. 7, 1996.

Decided May 13, 1996.

INDICTMENTS found and returned in the Superior Court Department on October 19, 1990.

The cases were tried before Patrick F. Brady, J.

Kevin S. Nixon, Arlington, for defendant.

Kevin Connelly, Assistant District Attorney, for Commonwealth.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and FRIED, JJ.

WILKINS, Justice.

We reverse the defendant's conviction of murder in the first degree because only one of the two theories of guilt (deliberate premeditation and felony-murder) on which the case was submitted to the jury was supported by the evidence and, in the circumstances, we cannot fairly conclude that the jury reached their verdict on the theory for which there was evidentiary support.

It is well established in this Commonwealth that a verdict cannot stand unless it appears that the jury reached their verdict on a theory for which there was factual support. See Commonwealth v. Flynn, 420 Mass. 810, 818, 652 N.E.2d 888 (1995) (case submitted to jury on two theories of guilt of manslaughter, only one of which was supported by evidence; general verdict of guilty returned; new trial ordered on theory supported by evidence); Commonwealth v. Green, 420 Mass. 771, 781, 652 N.E.2d 572 (1995) ("The possibility that the verdicts were based on theories for which the Commonwealth failed to offer sufficient evidence for a rational jury to find guilt beyond a reasonable doubt necessitates our setting them aside"); Commonwealth v. Fickett, 403 Mass. 194, 197, 526 N.E.2d 1064 (1988) (new trial ordered because evidence was insufficient on one of the theories of murder in first degree submitted to jury and general verdict returned); Commonwealth v. Kickery, 31 Mass.App.Ct. 720, 724-725, 583 N.E.2d 869 (1991) (new trial ordered where evidence supported only one of two theories of aggravated rape submitted to jury; general verdict returned); Commonwealth v. Eldridge, 28 Mass.App.Ct. 936, 937-938, 549 N.E.2d 1139 (1990) (same, as to crime of compelling unnatural sexual intercourse by force or threat). Cf. Commonwealth v. Matchett, 386 Mass. 492, 511, 436 N.E.2d 400 (1982) (where evidence warranted guilty verdict for murder in the second degree on two theories but jury instructions were wrong on one theory, new trial ordered); Federal Deposit Ins. Corp. v. Holbrook & Johnston, 36 Mass.App.Ct. 424, 431 n. 12, 632 N.E.2d 424 (1994) ("Our decisions in criminal cases ... seem to look toward invalidating a verdict where an alternative is unsupported in fact").

In addition to the conviction of murder in the first degree, the jury convicted the defendant of unarmed robbery. The felony of unarmed robbery would support a conviction of murder in the first degree on the theory of felony-murder, but only if the death occurred in the course of the enterprise and the defendant committed the felony with conscious disregard for the risk to human life. Commonwealth v. Moran, 387 Mass. 644, 651, 442 N.E.2d 399 (1982). See Commonwealth v. Ortiz, 408 Mass. 463, 466, 560 N.E.2d 698 (1990). The evidence warranted a finding that the defendant committed an unarmed robbery with a conscious disregard for the risk to the victim's life and that the victim died during the course of the robbery.

Because the jury were not asked to identify the theory or theories on which they arrived at their verdict of guilty of murder in the first degree, we do not know whether the jury reached their verdict on the theory of felony-murder or on the theory of deliberate premeditated murder. Because, as we shall explain, the evidence was insufficient to warrant a guilty verdict on the theory of deliberate premeditation, there must be a new trial. This is not a case in which a new trial fairly can be avoided because a simultaneous guilty verdict on a felony indictment demonstrates necessarily and unavoidably that the jury reached its verdict of guilty of murder in the first degree on the theory of felony-murder. See Commonwealth v. Blackwell, 422 Mass. 294, 300, 661 N.E.2d 1330 (1996); Commonwealth v. Berry, 420 Mass. 95, 112, 648 N.E.2d 732 (1995).

We set forth the evidence that the jury could have believed, including all evidence most favorable to the Commonwealth, on the issue of the defendant's deliberate premeditation. In the morning of September 11, 1990, the body of Louis Souza was found in his apartment in Fall River. He had been bound and gagged, with his hands tied behind his back and a towel tied around his face. A diamond ring that he usually wore was missing, and there were scratches on his ring finger indicating forcible removal of the ring. A T-shirt had been partially stuffed into his mouth and tied around his head. The shirt had been inserted so as to force his tongue in an "up" position. The medical examiner concluded that Souza died of suffocation resulting from the blockage of the upper air passages when, within one hour of the gag's being inserted, the victim's saliva decreased the flow of air through the gag. The victim had sustained other injuries that inferentially were caused by the defendant.

The police found the defendant's fingerprints on items in the victim's apartment. When the police first questioned the defendant, he admitted that he knew the victim but said that he had not seen him for two months and did not know where he lived. When pressed to explain why his fingerprints were found in the victim's apartment, the defendant conceded that he had been in the apartment but denied killing the victim.

The defendant gave a statement to the police in which he admitted that he had gone to the victim's apartment. He said that he took the victim's wallet and three rings when the victim was not looking. The victim made sexual advances toward him which the defendant resisted. He offered to tie the victim up if it would make him feel better. He tied the victim's hands behind his back. He put a towel over the victim's face and tied it behind his head. The defendant then left, with the victim calling for him to come back. The defendant repeated this account on videotape. In that statement, the defendant said, "When I left he was standing there; he was talking; he was trying to convince me to stay" and "so I figured that, you know, something happened afterwards." He admitted that he had sold the victim's rings to a jeweler. He admitted that he had thrown the victim's wallet where the police had earlier found it.

1. The evidence did not warrant submitting the case to the jury on the theory of deliberately premeditated murder in the first degree. It is an indispensable element of deliberately premeditated murder that the defendant intended to kill the victim. Commonwealth v. Chipman, 418 Mass. 262, 269, 635 N.E.2d 1204 (1994). Commonwealth v. Blaikie, 375 Mass. 601, 605, 378 N.E.2d 1361 (1978). Commonwealth v. Tucker, 189 Mass. 457, 494-495, 76 N.E. 127 (1905). It is only that aspect of malice that involves an intent to kill that can support a guilty verdict on the theory of deliberately premeditated murder. See Commonwealth v. Judge, 420 Mass. 433, 441, 650 N.E.2d 1242 (1995). Additionally, as the cited opinions indicate, the Commonwealth must prove that the defendant's resolution to kill followed a period of reflection.

The Commonwealth rightly does not argue that the evidence warranted a finding that the defendant intended to kill the victim or that the defendant reflected on whether to kill the victim before he did so. There is no doubt that there was evidence that would have warranted a finding that the defendant intended to bind and gag the victim and that the defendant reflected on what he was about to do before he did it. Although the evidence warranted a finding of malice on bases other than an intention to kill, it did not warrant an inference that the defendant intended to kill. The defendant did not bind and gag the victim to the degree that the victim was instantly suffocated. Death came because, when the gag became saturated with saliva, the passage of air was obstructed. There is no basis for inferring that the defendant intended this consequence of his conduct. The judge should have allowed the defendant's motion for a required finding of not guilty on so much of the murder indictment that charged deliberate premeditated murder. ¹

2. Although the verdict of guilty of murder in the first degree could not be substantiated on the theory of deliberate premeditated murder, the evidence was sufficient to permit the jury to find the defendant guilty of murder in the first degree on the theory of felony-murder. The jury returned a verdict of guilty of unarmed robbery, a felony that, as we have said, could support the murder verdict that the jury returned. The jury could reasonably have found that the victim died in the course of the unarmed robbery. The jury were instructed that such a felony (one not inherently dangerous to human life) could warrant a felony-murder first degree verdict only if they found that the defendant acted with a conscious disregard for the risk to human life. The evidence permitted a finding consistent with that instruction. See Commonwealth v. Scott, 408 Mass. 811, 822-823, 564 N.E.2d 370 (1990) (foreseeable that gag would cause death by asphyxia). Consequently, the judge was correct in denying the defendant's motion for a required finding of not guilty on so much of the murder indictment that charged murder in the first degree.

3. The verdict of guilty of murder in the first degree cannot stand. As we noted earlier, the general rule in the Commonwealth is that there must be a new trial if, as here, a jury, given two theories of guilt, returned a general verdict, and the evidence supported a guilty verdict on only one of those theories. This court has identified an exception to this general principle where it is apparent that the...