Commonwealth v. Brown
| Decision Date | 20 September 2017 |
| Docket Number | SJC-11669 |
| Citation | 81 N.E.3d 1173,477 Mass. 805 |
| Parties | COMMONWEALTH v. Timothy BROWN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
David H. Mirsky for the defendant.
Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.1
We address, in this opinion, the scope of criminal liability under the common-law felony-murder rule. The charges stem from an attempted armed robbery and home invasion into a Lowell townhouse shared by Hector and Tony Delgado. Two armed gunmen fatally shot the brothers during the botched robbery. The defendant was not present at the scene. The Commonwealthalleged that the defendant was liable as an accomplice to felony-murder because he supplied one of the gunmen with a pistol and provided hooded sweatshirts to the intruders to help them conceal their identities. A Superior Court jury convicted the defendant of two counts of felony-murder in the first degree based on the predicate felonies of an attempted commission of armed robbery, home invasion, unlawful possession of a firearm, and unlawful possession of ammunition.
The defendant raises the following claims on appeal: (1) the Commonwealth failed to produce sufficient evidence to prove that he was a knowing participant in the felony-murders; (2) the judge provided erroneous instructions on shared intent and accomplice liability; (3) portions of the prosecutor's opening statement and closing argument were improper; (4) the judge should have excluded prejudicial evidence of prior misconduct; (5) the judge asked improper voir dire questions of potential jurors; and (6) we should abolish the felony-murder rule. The defendant also asks us to order a new trial under our extraordinary authority pursuant to G.L.c. 278, § 33E.
We conclude that the Commonwealth introduced sufficient evidence to prove that the defendant knowingly participated in the underlying felonies and, therefore, was an accomplice to felony-murder. We conclude also that the defendant's other challenges do not raise error warranting reversal or a new trial as to any of the convictions. Nonetheless, in the circumstances of this case, we are convinced that, pursuant to our authority under G.L.c. 278, § 33E, the interests of justice require that the degree of guilt be reduced to that of murder in the second degree.
As to whether we should abolish the common-law felony-murder rule, a unanimous court concludes that the felony-murder rule is constitutional. However, a majority of Justices, through the concurrence of Chief Justice Gants, conclude that the scope of felony-murder liability should be prospectively narrowed, and hold that, in trials that commence after the date of the opinion in this case, a defendant may not be convicted of murder without proof of one of the three prongs of malice. As a result, in the future, felony-murder is no longer an independent theory of liability for murder. Rather, felony-murder is limited to its statutory role under G.L.c. 265, § 1, as an aggravating element of murder, permitting a jury to find a defendant guilty of murder in the first degree where the murder was committed in the course of a felony punishable by life imprisonment even if it was not committed with deliberate premeditation or with extreme atrocity or cruelty. Because the majority holding as to common-law felony-murder liability is prospective in effect, it does not affect the judgment reached in this case. Because I disagree with that holding, I write separately in a concurrence to explain my reasoning.
1. Background . Because the defendant challenges the sufficiency of the evidence of the extent of his involvement in the armed home invasion, and his shared intent to commit that crime, we recite the facts the jury could have found in some detail.
a. Facts . On the evening of October 22, 2009, the defendant was a passenger in a green Honda Civic automobile that was being driven around the Pawtucketville section of Lowell. The other occupants of the vehicle were his friends Ariel Hernandez, Giovanni Hill, and Darien Doby. Hernandez was the driver. Hill was in the front passenger seat, and the defendant and Doby shared the rear passenger seat. Hernandez drove past two men walking on the street and raised the possibility of robbing them. The passengers convinced Hernandez not to do so.
A short time later, Hill and Hernandez noticed two women walking down the street. Hernandez pulled into a side street and parked. Hill and Hernandez got out of the vehicle and Hernandez removed a firearm from the trunk. The two rounded the corner and confronted the women while the defendant and Doby waited in the vehicle. Hill stood and watched from a few feet away as Hernandez, gun in hand, grabbed their purses. The two men returned to the vehicle, and Hernandez drove away, with the purses and the handgun in his lap. He stopped at a friend's house to exchange the green hooded sweatshirt he had been wearing for a black sweatshirt without a hood.
The defendant, Doby, and Hill left the friend's house, while Hernandez stayed behind. The four men later met at the defendant's one-bedroom apartment. Hernandez stashed the handgun he had used in the robbery (a nine millimeter pistol) in a kitchen cabinet above the refrigerator. He rifled through the purses, pulling out cash, driver's licenses, and automated teller machine (ATM) cards. Hernandez found what appeared to be a passcode for one of the ATM cards written on a scrap of paper, and sent Hill to a bank to attempt to withdraw money with the card. Before he left, Hill borrowed the defendant's black sweatshirt so he could change out of the jacket he had worn during the robbery. When he returned, Hill reported that he had been unsuccessful in withdrawing any money.
Later, at approximately 12:15 A.M. , two cousins, Jamal and Karon McDougal, visited the defendant's apartment.2 They were joined by one of their friends, Joshua Silva. While gathered in the kitchen with the defendant, Jamal asked Hernandez if he wanted to participate in robbing someone who owed money to one of Jamal's friends. Karon predicted that the robbery would be "pretty easy." He warned the others, however, that they were going to rob two "pretty big guys" who worked in bars.3 Hernandez agreed to participate in the robbery. Silva joined them as the getaway driver.
Once Silva agreed to participate, Hernandez urged, "If we're going to do it, let's go do it now." Hernandez retrieved his gun from the kitchen cabinet, looked it over, and tucked it inside his waistband. Still wearing the hoodless black sweatshirt he had changed into after the earlier robbery, Hernandez asked the defendant for a hooded sweatshirt so that he could "hide his face." The defendant provided Hernandez with a hooded sweatshirt with a front zipper. Hernandez complained that the zipper was broken and that some part of his shirt would be visible. The defendant then gave Hernandez a black and red pullover-style hooded sweatshirt with a white Red Sox "B" logo on the front. Jamal and Karon also borrowed hooded sweatshirts from the defendant.
Before leaving, Jamal asked to borrow the defendant's "burner" (gun). At first, the defendant hesitated, stating his concern that something might happen to his gun. Hernandez and Karon then urged the defendant to allow Jamal to borrow the gun, promising that "nothing's going to happen to it." The defendant eventually gave Jamal a .380 pistol that had been stored underneath his bed.
Jamal, Karon, Hernandez, and Silva left the defendant's apartment and drove in Silva's Toyota Camry automobile to the victims' townhouse. Silva drove, and Jamal gave directions. After Silva parked on a nearby side street, Jamal, Karon, and Hernandez got out and approached the townhouse, while Silva waited in the vehicle. Shortly after 1 A.M. , the occupants of the townhouse heard loud banging on the front door. From a fourth-floor window, Tony called out, "Who's there?" A voice that sounded female responded "Nicole," or "Nicki." Tony went downstairs and opened the front door. His housemates heard a scuffle at the bottom of the stairs near the door, then Jamal and Hernandez chased Tony up the stairs into the second-floor living room.
A visitor had been sleeping on the living room couch. He saw Jamal threaten Tony with a gun, demanding, "Where's everything?" Tony responded that "[a]ll [he] see[s] is dimes." The visitor was unable to identify Jamal, whose face was obscured by a hooded sweatshirt. Hector and one of his roommates, Brian Staples, headed downstairs from their third-floor bedrooms and entered the living room. At that point, Jamal had Tony in a headlock and was pointing the gun at his head.4 Hernandez rushed toward Staples, brandishing a gun, and ordered him upstairs. Staples and Hector ran upstairs to hide. Tony managed to break free from Jamal and also ran up the stairs. Jamal and Hernandez followed him.
From his hiding place, Staples heard Hector's door being kicked in, followed by an argument, and then gunshots. Once the shooting stopped, Hector was found lying face up on his bed, gasping for air. He had been shot three times and shortly thereafter died of multiple gunshot wounds. Tony, fatally shot in the abdomen, managed to stagger to the fourth floor, where he was treated at the scene before he died. Police recovered five nine millimeter cartridge casings from Hector's bedroom.
After the gunshots, Jamal and Hernandez ran outside, cheering and exchanging "high fives." They met up with Karon and Silva, and drove back to the defendant's apartment. En route to the apartment, Jamal and Hernandez informed Karon that they had been unable to steal anything.
Jamal remarked that Hernandez was a good shot, and Hernandez responded, "Yeah, once I seen them jump on you, I just started shooting." Jamal returned the defendant's gun to him. Hernandez asked the defendant if he could leave his...
To continue reading
Request your trial
-
Gonzalez v. Warden, State Prison
... ... which he is charged." In re Winship , 397 U.S ... 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See also ... Commonwealth v. Webster, 59 Mass. 295, 296 (1850), ... abrogated on other grounds by Commonwealth v ... Russell, 470 Mass. 464, 23 N.E.3d 867 ... that the defendant- who was the driver- "knew that his ... accomplices had guns"); Commonwealth v. Brown, ... 477 Mass. 805, 812, 81 N.E.3d 1173 (2017), 139 S.Ct. 54, 202 ... L.Ed.2d 41 (2018) ("[i]n this case, where the predicate ... ...
-
Commonwealth v. Adams
...law."5 Chapman, supra at 69. See, e.g., Commonwealth v. Carter, 481 Mass. 352, 364, 115 N.E.3d 559 (2019) ; Commonwealth v. Brown, 477 Mass. 805, 822, 81 N.E.3d 1173 (2017), cert. denied, ––– U.S. ––––, 139 S. Ct. 54, 202 L.Ed.2d 41 (2018) ; Commonwealth v. Paulding, 438 Mass. 1, 8, 777 N.E......
-
Commonwealth v. Quiles
...quoting Commonwealth v. Hanright, 466 Mass. 303, 307, 994 N.E.2d 363 (2013), overruled on another ground by Commonwealth v. Brown, 477 Mass. 805, 81 N.E.3d 1173 (2017), cert. denied, ––– U.S. ––––, 139 S. Ct. 54, 202 L.Ed.2d 41 (2018). "Once a defendant participates in the underlying felony......
-
Commonwealth v. Grier
...where he or she unable to set aside preconceived opinion concerning case and "properly weigh the evidence"); Commonwealth v. Brown, 477 Mass. 805, 821, 81 N.E.3d 1173 (2017) (during jury selection, judge must examine potential jurors to guard against risk that jurors will be "influenced by ......
-
FELONY MURDER LIABILITY FOR HOMICIDES BY POLICE: TOO UNFAIR & TOO MUCH TO BEAR.
...felony and requires at least mens rea of "wanton disregard for human life" (citing Doucette, 470 A.2d at 682)); Commonwealth v. Brown, 81 N.E.3d 1173, 1191 (Mass. 2017) (Gants, C.J., concurring) (court majority insists "murder" conviction requires "actual malice," not merely "constructive m......