Com. v. Zanetti

• Citation: 454 Mass. 449,910 N.E.2d 869
• Decision Date: 03 August 2009
• Docket Number: SJC-09995
• Parties: COMMONWEALTH v. Timothy L. ZANETTI.
• Court: United States State Supreme Judicial Court of Massachusetts

910 N.E.2d 869

454 Mass. 449

COMMONWEALTH v. Timothy L. ZANETTI.

SJC-09995

Supreme Judicial Court of Massachusetts, Worcester.

Argued November 6, 2008.

Decided August 3, 2009.

Stephen Paul Maidman for the defendant.

Michelle R. King, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

GANTS, J.

Shortly before midnight on July 15, 2004, Hector Rivera was shot and killed while driving on Main Street in Worcester. The fatal bullet was fired from an automobile in which the defendant was a passenger. The defendant was indicted on a charge of murder in the first degree, and at a jury trial, the Commonwealth proceeded against him on the theory of deliberate premeditation based on both principal and joint venture liability. The jury convicted the defendant of murder in the first degree as a joint venturer. On appeal, the defendant primarily argues that his motion for a required finding of not guilty should have been granted because there was insufficient evidence that he deliberately premeditated the murder as part of a joint venture. We agree and reverse the defendant's conviction. We conclude, however, that the Commonwealth presented sufficient evidence to support the defendant's conviction based on principal liability and is not precluded from retrying the defendant solely as a principal. Accordingly, we remand the case for a new trial.

Toward the end of this opinion, we address the traditional jury instruction on joint venture and conclude that our law on joint venture will be better understood, and ultimately more fair and just, if in the future judges simply instruct juries in appropriate cases that a defendant is guilty of a crime if he knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that crime. See Appendix. We also discuss the practical consequences of this shift from the language of joint venture to the language of aiding and abetting.

1. Background. We summarize the Commonwealth's evidence in the light most favorable to it, paying particular attention to the evidence of joint venture.¹

At approximately 11:45 P.M. on the night of the shooting, the defendant and Jorge Lopez separately left the Club Octaine in Worcester. Each asked Fuquan Toney for a ride in the automobile Toney was driving, and Toney agreed. In the automobile were Toney, in the driver's seat; Michael Faison, in the front passenger seat; Lopez, in the back left seat behind the driver; and the defendant, in the back right seat behind Faison. All four occupants of the automobile were members of a gang called the Vice Lords. Lopez and Toney were half-brothers, and had grown up together. Toney and Faison were close friends. The defendant had been a member of the Vice Lords for less than two months. According to Lopez, a new member could move faster in the gang by "fighting and stuff like that, like just getting a reputation for yourself."

Shortly before midnight, Toney's automobile stopped at a traffic light at the intersection of Main and Pleasant Streets in Worcester. Toney's automobile was in the left lane. A automobile driven by Hector Rivera, the victim, stopped in the right lane next to Toney's automobile. The victim was alone in his automobile. Lopez had known the victim for a couple of years, and knew he associated with another gang. As the two drivers waited for the light to change, an argument began between the occupants of Toney's automobile and the victim, apparently initiated by someone—it is not clear from which automobile—saying, "What the fuck are you looking at?"

While the two cars were still stopped at the light, a automobile driven by Holly Dusoe, with Cheryl Mazzuchelli in the front passenger seat, stopped directly behind the victim's automobile. Dusoe and Mazzuchelli were nurses who were driving home together from their work at the University of Massachusetts Memorial Medical Center. It appeared to Dusoe that "everybody" in Toney's automobile was "[verbally] fighting with" the victim; she "heard fighting," but she could not make out any words. At one point, however, she saw the victim moving and gesturing with his arms as if he "was pleading his case." She also saw the two rear passengers in Toney's car nervously looking back and forth, left to right. Dusoe testified that the person sitting in the front passenger seat of Toney's automobile was wearing a white windbreaker (Faison), the person in the back seat on the driver's side had long hair with beads in it (Lopez), and the person in the back seat on the passenger side was light-skinned with short, dirty blond hair (the defendant).² Dusoe was unable to describe the driver.

Shortly after the light turned green, the victim's automobile moved slowly through the intersection.³ Dusoe and Mazzuchelli provided different accounts of what happened next. According to Dusoe, the victim's car moved into the left lane, ahead of Toney's car, and Toney's car then drove around to the right, so that the victim's car was on its left. Dusoe saw someone wearing a white windbreaker (Faison) extend his arm out of the front passenger side window, reach around to the left, and fire two shots at the victim's car. Dusoe saw this person holding a silver gun, which may have been a revolver. After the shots, Toney's car kept driving ahead, while Dusoe stopped and telephoned the police.

According to Mazzuchelli, when the two cars ahead of them began to move after the light turned green, she saw the victim's car drift into the left lane, close enough to Toney's car that she feared there might be a collision. She heard one gunshot, and saw Toney's car move into the oncoming traffic lane (i.e., a little farther to the left), perhaps at the same time. The victim's car came to rest, and Dusoe stopped her car. When Mazzuchelli ran back to the victim's car to help him, she observed blood coming from the left side of his head.

The Commonwealth introduced a statement that the defendant had given to the police after receiving Miranda warnings,⁴ and called Lopez and Faison as witnesses. The three men presented conflicting accounts of events that took place inside Toney's car at the time of the shooting. The defendant claimed in his statement that only he, Lopez, and Toney were in the car; he did not mention Faison or any fourth occupant. According to the defendant, he sat in the front passenger seat, with Lopez behind him in the back right seat. The defendant surmised that Toney knew the victim, because Toney and the victim started arguing. The defendant saw the victim reach for something, and shouted that the victim had a gun. The defendant ducked down and heard a shot. After hearing the shot, the defendant saw Lopez pass a gun inside a sock to Toney.⁵ Toney kept driving for several blocks then gave the gun to the defendant and instructed him to get out of the car and dispose of it. The defendant told police he then got out of the car and concealed the gun under a dumpster. The gun was never found.

Lopez testified to very different facts. He stated that, when Toney's car stopped at the intersection, he (Lopez) was sitting in the back left seat, with the defendant to his right, and Toney and Faison in the front two seats. Lopez glanced up when he heard the argument with the victim at the intersection and saw the defendant take a gun wrapped in a sock from his pants. After the cars began to move, the victim's car swerved to the left toward Toney's, and Lopez saw the defendant cock the gun and shoot the victim. Lopez testified that the gun was out for ten to fifteen seconds before it was fired. Lopez further testified that he did not know the identity of the victim at the time of the shooting, because the victim's car was slightly ahead of Toney's car when stopped at the intersection and his view of the victim's car was blocked by the front passenger seat.⁶ Lopez also testified that the shooting resulted from a simple traffic argument and was unrelated to gang membership or an ongoing quarrel. According to Lopez, after the gun was fired, he asked the defendant, "Did you just shoot that kid?" The defendant did not respond. At some point thereafter, Toney stopped the car, and the occupants of the car "kicked [the defendant] out."

Faison testified simply that he had been seated in the front passenger side of the car, but that he had been too drunk to remember any of the events of the evening.⁷

The victim was taken to a hospital and died shortly after midnight. A medical examiner for the Commonwealth testified that the victim had been shot once in the left side of the head, directly behind the ear.

In the course of the police investigation, all four occupants of Toney's car were arrested. When the police arrested Toney seven days after the murder, they seized, among other items, a box of ammunition from Toney's apartment. When Lopez was arrested (on the same day as Toney), the police seized a loaded handgun, "crack" cocaine, and some cash from Lopez's apartment. A firearms expert testified that the revolver taken from Lopez could not have fired the fatal projectile, nor could that projectile have been fired from any weapon designed for the ammunition seized from Toney.

2. Discussion. a. Sufficiency of the evidence. The Commonwealth proceeded at trial on the theory that the defendant was guilty of murder in the first degree by deliberate premeditation as the shooter, or, alternatively, guilty of that crime as a joint venturer. The judge presented both alternatives to the jury in his instructions. The judge further instructed the jury that, if they found the defendant guilty, they were to specify whether they found him guilty as a principal or as a joint venturer, but they could not find him guilty both as a principal and as a joint venturer. The jury verdict slip was written so that the jury could make this choice. As has been stated, the jury found the...