Com. v. Wojcik

• Decision Date: 08 October 1997
• Docket Number: No. 96-P-138,96-P-138
• Citation: 686 N.E.2d 452,43 Mass.App.Ct. 595
• Parties: COMMONWEALTH v. Robert WOJCIK (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 452

686 N.E.2d 452

43 Mass.App.Ct. 595

COMMONWEALTH v. Robert WOJCIK (and a companion case ¹).

No. 96-P-138.

Appeals Court of Massachusetts,

Hampden.

Argued Nov. 12, 1996.

Decided Oct. 8, 1997.

David P. Hoose, Springfield, for Robert Wojcik.

Charles K. Stephenson, Granby, for Stephen Wojcik.

Brett J. Vottero, Assistant District Attorney, for the Commonwealth.

Before BROWN, LAURENCE and FLANNERY, JJ.

FLANNERY, Justice.

Upon indictments for first degree murder, a Superior Court jury found the defendants, Robert Wojcik (Robert) and his uncle Stephen D. Wojcik (Stephen), guilty of murder in the second degree. G.L. c. 265, § 1. ² The Commonwealth's evidence tended to show that on June 3, 1993, the defendants, who were passengers in a rental truck being driven by one Marc-Anthony Usher, engineered a motor vehicle collision in Springfield for purposes of insurance fraud, causing the death of Paul Langevin. Usher was the principal witness for the Commonwealth at trial. Both defendants appeal on several common grounds, ³ and Stephen adds one peculiar to himself. They contend: (1) that evidence of Robert's prior bad acts was erroneously admitted; (2) that there was improper limitation of cross-examination of a prosecution witness for bias; (3) that the contents of two telephone calls were admitted in evidence despite insufficient authentication; (4) that a post-incident conversation between Robert and a licensed social worker was privileged and that its admission in evidence was error; (5) that evidence of malice was lacking; (6) that there was impropriety in the Commonwealth's closing argument; and (7) that their posttrial motions pursuant to Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), should have been allowed. In addition, Stephen asserts that the errors necessitating a new trial for Robert require reversal of his conviction because the Commonwealth's only theory at trial was that he was Robert's joint venturer. We affirm the convictions, addressing first the principal contentions going to the validity of the second degree murder verdicts against both defendants.

1. Robert's conviction of murder with malice. Under the instructions delivered to them by the trial judge, the jury were permitted to convict each defendant of alternative theories, second degree murder on the basis of malice aforethought, second degree felony-murder (as to which the predicate felony was larceny over $250 or attempted larceny), or both. The jury were also instructed that they could return a verdict of involuntary manslaughter, and they were instructed on joint venture. The jury found Robert guilty of second degree murder with malice and Stephen guilty of felony-murder.

The jury were instructed that they could return a second degree murder verdict based upon malice if they found that, "in the circumstances known to the defendant, ⁴ a reasonably prudent person would have known that according to common sense there was a plain and strong likelihood that death would follow the contemplated act." ⁵ This is the so-called "third prong of malice." See Commonwealth v. Sires, 413 Mass. 292, 303 n. 14, 596 N.E.2d 1018 (1992). ⁶ We conclude that the evidence against Robert on this theory was sufficient to take the case to the jury.

Robert concedes that a reasonably prudent person would have recognized that a serious injury could result from the collision and that such a person would understand that a death could have resulted. Robert submits, however, that a reasonably prudent person would not have recognized that the deliberate striking of another vehicle, in which the impact caused only minor damage to both vehicles, would create a "plain and strong" likelihood of death. Robert maintains that the conduct at issue here was much more consistent with the standard required for a conviction of involuntary manslaughter, to wit: a "high degree of likelihood that substantial harm will result to another." See Commonwealth v. Catalina, 407 Mass. 779, 789, 556 N.E.2d 973 (1990). Robert's motions for required findings of not guilty (Stephen filed such motions as well), filed at the close of the Commonwealth's evidence and renewed at the close of all the evidence, were denied.

As noted, the principal witness for the Commonwealth at trial was Marc-Anthony Usher, who was the operator of the vehicle in which the defendants were passengers. ⁷ To provide context for the discussion, we briefly summarize the events of June 2, the day before the collision. Usher testified that on that day Robert, who was an acquaintance of his, telephoned him and suggested that he (Usher) had an opportunity to make some money moving some trash. Robert told Usher that he needed someone to rent a truck as he did not have a driver's license and indicated that he would pay for the truck. In Stephen's vehicle, the three drove to a U-Haul rental agency in Chicopee. Robert selected the vehicle (a "big U-Haul truck"), and when Usher remarked that because of its size a special operator's license was required, Robert replied that that was not necessary. Robert suggested that they purchase additional insurance, which he paid for. The vehicle was insured for $20,000.

With Usher driving, the men left the rental agency. Usher testified that he had never driven a truck that size (he stated that the truck was about eighteen feet long on the inside). Initially, Usher had some difficulty driving the vehicle, having a problem with the clutch. Near West Springfield, Robert remarked that they could make more money if Usher "banged into something." Usher testified that when they approached an intersection near Riverdale Road, Robert said, "You can just hit a car as it's moving," and that there would be "good money involved." When a vehicle containing children approached, the defendants chanted "Go ahead. Do it. Go ahead. It's a good car." Describing himself as "very nervous," Usher watched the vehicle pass by, and told the defendants, "That was messed up, there w[ere] children in the car." The defendants told Usher not to worry about it, they would do it later. That evening, Robert took the truck to his home.

The next morning, June 3, the defendants appeared at Usher's house, and it was agreed that they would remove some debris from a location at Allen and Groveton Streets. Usher drove to the location, with Robert seated next to him and Stephen on the outside. When the men saw that there was no debris on the lot to remove, Usher got back into the truck, backed it up, and proceeded toward Allen Street. As Usher was approaching a stop sign on Groveton, Robert said that "this would be a good place to hit a car." According to Usher, Stephen agreed. The defendants were chanting, "Go ahead. Do it. It's a good place." Usher stated that he was not considering this course of action, and because he was very nervous, he got out of the truck, ostensibly to inspect the front of the property for debris. When Usher returned, approximately a minute later, he told the defendants that the truck would be returned. There was no response from the defendants. Usher proceeded to "inch out" into the intersection, and he saw a vehicle coming from his left. When he was three or four feet into the intersection, Robert put his left foot onto Usher's right foot and depressed the accelerator. Usher "lost control" of the truck, and, although he tried to brake it, the truck "skinned" the oncoming vehicle, a Chevrolet Cavalier, which then veered off to the left and struck a utility pole. Before Langevin's vehicle hit the utility pole, one of the defendants exclaimed, "Yah, baby. We got one." Usher proceeded to the Langevin vehicle and saw that Langevin was completely underneath the steering wheel. Usher, who was unnerved, began vomiting. Robert then told him, "Don't worry about it. We're going to get paid."

We conclude that the question of whether the defendants could have anticipated that there was a plain and strong likelihood of death, as opposed to a risk of substantial harm to the occupant of any vehicle struck by the U-Haul truck (the standard for manslaughter), was properly left to the jury. On the facts that could have been found by them, the jury could have inferred malice from the action of Robert in deliberately causing a large truck to collide with a much smaller vehicle. Robert was aware of Usher's limited experience in driving a truck of that size. We think this result is a logical extension of the principles found in cases in which the operator of the vehicle struck a pedestrian. See Commonwealth v. Cherubin, 35 Mass.App.Ct. 919, 920, 620 N.E.2d 797 (1993) (jury could properly find malice in circumstances where the defendants deliberately aimed his vehicle at the victim and one of her friends, who were pedestrians, striking both of them, and then ran over the victim's body); Commonwealth v. Russell, 38 Mass.App.Ct. 199, 201-202, 646 N.E.2d 760 (1995). In circumstances where a reasonably prudent person would have known of the plain and strong likelihood that death would follow a contemplated act, "malice may be found without any actual intent to kill or to do grievous bodily harm [see note 5, supra ] and without any foresight by the defendant of such consequences." Commonwealth v. Grey, 399 Mass. 469, 472 n. 4, 505 N.E.2d 171 (1987).

2. Stephen's conviction of felony-murder. The jury found Stephen guilty of felony-murder. In a case such as this one, where the predicate felony (larceny or attempted larceny), is not inherently dangerous to human life, the defendant must be shown to have had a "conscious disregard of the risk to human life." Commonwealth v. Matchett, 386 Mass. 492, 508, 436 N.E.2d 400 (1982). See Commonwealth v. Chase, 42 Mass.App.Ct. 749, 751-753, 679 N.E.2d 1021 (1997). Stephen does not argue that the evidence was insufficient to convict on felony-murder. His challenge is limited to the significance to him of the jury's verdict against Robert, viz., that the verdicts against...