Com. v. Semedo

• Decision Date: 22 May 1996
• Citation: 422 Mass. 716,665 N.E.2d 638
• Parties: COMMONWEALTH v. Dirceu SEMEDO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 638

665 N.E.2d 638

422 Mass. 716

COMMONWEALTH v. Dirceu SEMEDO.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Feb. 6, 1996.

Decided May 22, 1996.

Micheal A. Collora, Boston, for defendant.

Mark D. Zanini, Assistant District Attorney, for Commonwealth.

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

ABRAMS, Justice.

The defendant, Dirceu Semedo, was convicted of murder in the first degree and assault and battery by means of a dangerous weapon. He appeals from the conviction of murder in the first degree, claiming that the trial judge committed error in (1) the denial of his motion for a required finding of not guilty; (2) the jury instructions on joint venture; (3) the jury instructions on extreme atrocity or cruelty and; (4) the denial of his request for a severance after his codefendants allegedly introduced evidence prejudicial to him. ¹ We conclude that the conviction of murder in the first degree should be affirmed. We decline to order a new trial, or to exercise our extraordinary power under G.L. c. 278, § 33E (1994 ed.), to enter a verdict of a lesser degree of guilt.

We recite the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with specific issues raised. See Commonwealth v. Nichypor, 419 Mass. 209, 210, 643 N.E.2d 452 (1994); Commonwealth v. Salemme, 395 Mass. 594, 595, 481 N.E.2d 471 (1985). On the night of April 22, 1992, close to midnight, the victim, Charleston Sarjeant (Sarjeant), with his wife and a friend, Eddy Toomer, entered the Tasty Chicken restaurant in the Dorchester section of Boston and ordered food. Sarjeant and his companions waited facing the counter, with their backs to the glass door in the front of the restaurant.

While Sarjeant and his companions were inside the restaurant, a group of young men, including Semedo, gathered on a traffic island in front of the restaurant. One of the young men, James Villaroel, threw a beer bottle against the front of the restaurant causing the victim and his companions to turn and look. He then shouted, "Let's shut him down" (or words to that effect) and moved toward the restaurant. The rest of the group, including Semedo, followed. Villaroel entered the restaurant first, carrying a large radio. Without saying a word, Villaroel struck Sarjeant in the back and side of the head with the radio. Within seconds, ten to twelve men encircled Sarjeant and began beating, punching, and kicking him. Witnesses testified that this attack on Sarjeant lasted from five to ten minutes. During the attack, Semedo held Sarjeant by the hood of Sarjeant's jacket, tearing the hood from the jacket. Witnesses saw Semedo kick, punch, and stomp on Sarjeant, particularly Sarjeant's head.

One to one and one-half minutes into the attack, Villaroel pulled a knife from his back pocket and began stabbing Sarjeant. During the stabbing, the other attackers, including Semedo, continued to punch, kick, and stomp on the victim. The attackers left as a group when Sarjeant fell to the floor and became unconscious. Sarjeant was beaten about the head and face. He was stabbed repeatedly.

The police arrived promptly, followed by medical personnel. Their efforts to save Sarjeant were in vain. Sarjeant died while en route to the hospital. He had bled out his entire blood volume on the floor of the Tasty Chicken restaurant.

An autopsy of Sarjeant revealed seven or more independent areas of blunt trauma to the head and facial area, nine stab wounds to the neck, back, and thighs and one cutting wound. The medical examiner who performed the autopsy opined that no one head or facial trauma was in and of itself fatal but he could not determine with medical certainty whether the combined effect of the head and facial injuries was fatal. He concluded that Sarjeant died as a result of the combination of multiple stab wounds and blunt head trauma.

At and prior to trial, Semedo was identified by three witnesses as having participated in the attack. ² Deborah Sarjeant, the victim's wife, also identified Semedo at trial as one of the men who attacked her husband. The defendant testified that he was present for part of the attack but that he did not participate in the attack.

I. Denial of motion for a required finding of not guilty. In reviewing a motion for a required finding of not guilty, the critical inquiry is whether, after viewing the evidence, including inferences that are not too remote according to the usual course of events, in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), and cases cited. The crime is murder in the first degree. The Commonwealth proceeded on a theory of extreme atrocity or cruelty. The Commonwealth proceeded against Semedo, Virgilio Barbosa, and Carlos Rezende on the theory that the murder was committed by joint venture. ³

To sustain a conviction of murder in the first degree by joint venture, the Commonwealth must prove beyond a reasonable doubt that the defendant was present at the scene of the crime, with knowledge that another intended to commit a crime, and by agreement was willing and available to help the other if necessary. Additionally, the Commonwealth must show that the defendant shared with the principal the mental state required for the crime of murder. Commonwealth v. Clarke, 418 Mass. 207, 214, 635 N.E.2d 1197 (1994). The defendant admitted presence at the brutal beating and stabbing of Sarjeant. The jury reasonably could have inferred from the testimony of eyewitnesses that Semedo participated in the beating and that he continued to kick and stomp on Sarjeant after Villaroel began stabbing Sarjeant. The defendant also held Sarjeant's hood and prevented his escape. Based on this evidence, the jury could reasonably infer that Semedo was willing and available to help Villaroel in the commission of the murder.

Semedo followed Villaroel into the restaurant and actively participated with others in the brutal beating of Sarjeant. From this, the jury could infer agreement among the joint venturers. Commonwealth v. Longo, 402 Mass. 482, 488, 524 N.E.2d 67 (1988) (conduct of group of men converging on victim and administering beating permitted jury to infer agreement). An agreement between joint venturers need not be express. 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 jury may infer the requisite mental state from the defendant's knowledge of the circumstances and subsequent participation in the offense").

The jury need not have found that the defendant had an unwavering intent to commit murder when he began the beating. "[I]t would suffice if the purpose to murder in the mind of [one defendant] was a conditional or contingent one, a willingness to see the [knifing] take place should it become necessary." Commonwealth v. Hennessey, 17 Mass.App.Ct. 160, 163, 456 N.E.2d 1146 (1983). See Soares, supra at 471-472, 387 N.E.2d 499 ("if an individual is, by agreement, in a position to render aid, he is an abettor even if he does not participate in the actual perpetration of the crime, '[f]or the presence of the abettor under such circumstances must encourage and embolden the perpetrator to do the deed, by giving him hopes of immediate assistance' ").

The mental state required for murder is malice aforethought. Malice aforethought may be shown by proof that the defendant, without justification or excuse, intended to kill the victim. Malice aforethought may be inferred if, in the circumstances known to the defendant, a reasonably prudent person would have known that according to common experience there was a plain and strong likelihood that death would follow the contemplated act. Commonwealth v. Judge, 420 Mass. 433, 437-438 & n. 3, 650 N.E.2d 1242 (1995); Commonwealth v. Grey, 399 Mass. 469, 470 n. 1, 505 N.E.2d 171 (1987); Commonwealth v. Chance, 174 Mass. 245, 252, 54 N.E. 551 (1899).

The jury reasonably could have found that Semedo possessed malice. There was evidence that Semedo participated with five to eleven other men in a brutal battery on Sarjeant and that Semedo battered the victim's head and body by means of a dangerous weapon, namely a shoe. See Commonwealth v. Mahoney, 406 Mass. 843, 848, 550 N.E.2d 1380 (1990) (defendants should have known as vicious beating progressed that victim could suffer death). The jury could reasonably have concluded that Semedo's intention was to inflict injury and that this intention was coupled with an awareness that death might result from the injuries he participated in inflicting. Under the third prong of malice, the jury could infer that "in the circumstances known to the defendant, a reasonably prudent person would have known that according to common experience there was a plain and strong likelihood that death would follow [from his] act." See Judge, supra; Grey, supra.

If Semedo possessed the malice aforethought required for a conviction of murder, he is guilty as a joint venturer even if he did not hold the murder weapon or inflict the fatal blows. See Commonwealth v. Colon-Cruz, 408 Mass. 533, 546-547, 562 N.E.2d 797 (1990); Commonwealth v. Mahoney, supra at 846-848, 550 N.E.2d 1380 (evidence that defendant present at scene of and actively involved in savage beating sufficient to convict of joint venture; not necessary for Commonwealth to establish that defendant struck fatal blows). It is also not necessary that the Commonwealth prove that Semedo knew that his coventurer was armed with a dangerous weapon. See Commonwealth v. Champagne, 399 Mass. 80, 87, 503 N.E.2d 7 (1987) (facts warrant inference that defendant shared premeditated malice aforethought with others with respect to physical assault; irrelevant to conviction of murder in...