Com. v. Scott

• Decision Date: 10 November 1998
• Citation: 701 N.E.2d 629,428 Mass. 362
• Parties: COMMONWEALTH v. John A. SCOTT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 629

701 N.E.2d 629

428 Mass. 362

COMMONWEALTH v. John A. SCOTT.

Supreme Judicial Court of Massachusetts Bristol.

Argued Oct. 6, 1998.

Decided Nov. 10, 1998.

Charles K. Stephenson, Granby, for defendant.

David B. Mark, Special Assistant District Attorney, for the Commonwealth.

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

ABRAMS, Justice.

The defendant, John A. Scott, appeals from convictions of murder in the first degree on the theory of felony murder and unarmed robbery. He also appeals from the denial of his motion for a new trial. The defendant's principal contentions are that the judge erroneously instructed the jury on felony-murder, and that defense counsel provided ineffective assistance. We affirm the defendant's conviction of murder in the first degree. We also affirm the order denying the defendant's motion for a new trial. We vacate the conviction of unarmed robbery as it is duplicative of the conviction of murder in the first degree. See Commonwealth v. Gunter, 427 Mass. 259, 275-276, 692 N.E.2d 515 (1998). We decline to exercise our power under G.L. c. 278, § 33E, in favor of the defendant.

The jury could have found the following facts. In the early morning hours of December 17, 1992, the victim, Steven Consoli, approached the defendant and attempted to purchase cocaine. The defendant sold the victim a bag which purportedly contained cocaine but actually contained baking soda. The victim paid for the "cocaine" with a counterfeit twenty-dollar bill, yelled "Gotcha," and drove away in his pickup truck. Angered, the defendant pursued, first on foot and then in an automobile, with his girl friend and two male friends. The defendant intercepted the victim's truck at the next block. The defendant approached the truck and struck the victim in the face. A struggle ensued. The victim left the truck and attempted to flee. The defendant followed him and hit him several times. During the struggle, two of the defendant's friends--Curtis Roderick and Lawrence Gelmette--joined in the attack. ¹ As the defendant continued to strike the victim, Roderick kicked the victim and Gelmette stabbed the victim. A third friend, Wayne Costa, approached the scene, and saw the defendant and Gelmette struggling with the victim. He heard the defendant say, "Where's my ... money?" When Costa inquired as to what was happening, the attack ended. The defendant, Roderick, and Gelmette left the scene. The victim staggered toward his truck.

A police officer arrived at the scene of the attack and found the victim in an unresponsive state, bleeding, and lying on the ground. The victim was rushed to a hospital where he died of stab wounds. The defendant was arrested later that day. The victim's wallet was recovered from the trash can in the defendant's girl friend's kitchen.

The defendant subsequently was indicted for armed robbery and murder in the first degree. The jury convicted the defendant of murder in the first degree based on a theory of felony-murder and unarmed robbery. In the Superior Court, the defendant unsuccessfully moved to reduce his conviction of murder in the first degree.

Thereafter, this appeal was entered and then stayed by a single justice of this court. In the interim, the defendant moved for a new trial and for funds to hire an investigator. The motion was remanded to the Superior Court. After several evidentiary hearings, the judge denied the motion for a new trial. The defendant appealed. We consolidated the appeal of the defendant's conviction of murder in the first degree and the appeal from the denial of the motion for a new trial.

1. Felony-murder jury instruction. The defendant contends that the judge's instructions on felony-murder were incorrect. ² After correctly stating the elements of felony-murder, the judge instructed: "[Y]ou must also determine whether or not the Commonwealth has proven beyond a reasonable doubt that the actual or attempted crime was inherently dangerous to human life or was carried out by [the defendant] in a manner that exhibited a conscious disregard for human life." ³ The judge's instructions do not accord with our cases.

We have delineated several felonies, including armed robbery, as "inherently dangerous." See Commonwealth v. Matchett, 386 Mass. 492, 505 n. 15, 436 N.E.2d 400 (1982). These felonies, as a matter of law, may support a conviction of felony-murder. There is no need to show a "conscious disregard for human life because the risk is implicit in the intent required for the felony." Commonwealth v. Cook, 419 Mass. 192, 206, 644 N.E.2d 203 (1994).

However, we have expressly held that unarmed robbery is not inherently dangerous to human life. See Cook, supra at 205, 644 N.E.2d 203. Felony-murder may only be premised on unarmed robbery if the Commonwealth proves that the defendant committed the felony with a conscious disregard for human life. See Commonwealth v. Moran, 387 Mass. 644, 651, 442 N.E.2d 399 (1982). The erroneous instructions permitted the jury to conclude that the actual or attempted armed or unarmed robbery was either inherently dangerous to human life or that the robbery was carried out with a conscious disregard for human life. It is not the province of the jury to determine whether a felony is inherently dangerous. Rather, it is incumbent on the judge to instruct that, should the jury choose to base a felony-murder conviction on a felony not designated as "inherently dangerous," the jury must determine that the felony was committed with a conscious disregard for human life in order to support a verdict of murder in the first or second degree.

Defense counsel did not object to the judge's instructions. However, the judge addressed this issue in denying the defendant's motion for a new trial. Therefore, we consider the erroneous instructions as though they were properly preserved. See Commonwealth v. Hallet, 427 Mass. 552, 555, 694 N.E.2d 845 (1998). Evaluating the evidence in a light most favorable to the defendant, the judge's errors in the instructions on felony-murder were not prejudicial. The defendant's conduct, even in a light most favorable to him, evinces a conscious disregard of the risk to human life.

The defendant admitted chasing the victim after the drug deal went awry. He pursued the victim and forced the victim to stop his truck. He approached the victim and, after seeing the victim reach under his seat, hit him in the face. The defendant acknowledged that, although the victim attempted to flee, he continued to strike the victim. He continued the assault as two acquaintances joined in, knowing that one of the acquaintances customarily carried a knife. Although the defendant asserts that he stopped hitting the victim when he realized the victim was being stabbed, ⁴ the beating did not cease until another friend approached the scene. The defendant then fled to attend to his own minor injuries, leaving the dying victim in a dark, unfamiliar street.

At oral argument, the defendant asserted that Commonwealth v. Plunkett, 422 Mass. 634, 664 N.E.2d 833 (1996), was closely analogous to this case. We do not agree. In Plunkett, the jurors were instructed on felony-murder and premeditated murder. See id. at 635, 664 N.E.2d 833. The jurors returned a general verdict of guilty of murder in the first degree and a verdict of guilty of unarmed robbery. See id. at 636, 664 N.E.2d 833. However, the evidence in Plunkett did not warrant submitting the case to the jury on the theory of deliberate premeditated murder. Because it was unclear on what theory the jurors based the conviction of murder in the first degree, that conviction was reversed. The conviction of unarmed robbery, however, was affirmed. See id. at 639, 641, 664 N.E.2d 833. In Plunkett, the victim died because a T-shirt stuffed in his mouth during a robbery caused him to suffocate. See id. at 636, 664 N.E.2d 833. We noted that, although the jurors convicted the defendant of unarmed robbery, the jurors did not necessarily determine that the death occurred in the course of the robbery. We observed that, although there was sufficient evidence to justify a conclusion that the robbery was committed with "a conscious disregard for human life, that conclusion was not compelled." Id. at 639, 664 N.E.2d 833. We stated that the evidence could support either a determination of recklessness or a determination of conscious disregard for human life. See id. at 639, 664 N.E.2d 833.

Unlike in Plunkett, the jury in this case specifically determined guilt on a theory of felony-murder. The evidence fully supported the jurors' determination of guilty of murder in the first degree on the theory of felony-murder. In light of the facts set forth, supra at , the jury would have to conclude that the defendant acted with a conscious disregard for the risk to human life. Thus, on these facts, the errors in the instructions were not prejudicial.

2. Jury request for clarification. The defendant contends that the judge's response to a jury question was inadequate. Because the defendant did not object at trial, our review is limited to determining whether there was a substantial likelihood of a miscarriage of justice. See Commonwealth v. Wright, 411 Mass. 678, 681, 584 N.E.2d 621 (1992).

After deliberating for nearly one hour, the jury submitted the following question to the judge: "Is it the responsibility of the Commonwealth to have proven to us beyond a reasonable doubt that Lawrence Gelmette did in fact murder one Steven Consoli?" The judge found the question ambiguous: the jury could have been asking whether they had to determine that Gelmette had stabbed the victim, causing death, or whether Gelmette acted with malice aforethought. After conferring with counsel, the judge sent the jury a note asking for clarification. The jury did not clarify the question; rather, they returned a verdict of guilty of murder in the first degree.

The proper response to a jury...