Commonwealth v. Burton

Citation450 Mass. 55,876 N.E.2d 411
Decision Date09 November 2007
Docket NumberSJC-09708.
PartiesCOMMONWEALTH v. Antwan BURTON.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Stephen Paul Maidman for the defendant.

John E. Bradley, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., GREANEY, COWIN, CORDY, & BOTSFORD, JJ.

COWIN, J.

The defendant, Antwan Burton, was convicted of murder in the first degree on the theory of felony-murder with armed home invasion as the predicate offense. He was also convicted of armed home invasion on a separate indictment charging that crime. The defendant appeals, claiming that he was improperly convicted of murder in the first degree because, at the time of the offense in this case the predicate offense, armed home invasion, was not a felony punishable by life imprisonment. The defendant also contends that certain evidence was improperly admitted at trial. Specifically, he asserts that statements he made to the police should have been excluded because they were involuntary and not electronically recorded, and that statements of other joint venturers were inadmissible because they were hearsay. He also maintains that his motions for a required finding of not guilty should have been allowed. Finally, he requests that we exercise our extraordinary power under G.L. c. 278, § 33E, to order a new trial. We conclude that armed home invasion was not a felony punishable by life imprisonment at the time of the instant offense, and, for that reason, reduce the conviction to murder in the second degree.1 We have also considered the defendant's remaining claims in the event that they might entitle the defendant to a new trial. We conclude that they do not, and we decline to exercise our authority under G.L. c. 278, § 33E, to grant further relief.

The defendant was tried on a joint venture theory. The Commonwealth claimed that he and three other men had entered the Brockton apartment of Richard Anderlot on the evening of October 24, 1999, in an attempt to rob him. During the course of the attempted armed robbery, Kenneth Taylor, one of the defendant's cohorts, shot and killed Anderlot. The evidence at trial was essentially the same as that at the trial of Taylor, see Taylor v. Commonwealth, 447 Mass. 49, 50-52, 849 N.E.2d 192 (2006), and need not be repeated here. To the extent necessary, we summarize the relevant evidence when we discuss each issue.

1. Armed home invasion statute. As stated, the defendant was convicted of murder in the first degree on a theory of felony-murder, with armed home invasion as the predicate offense. It is undisputed that the weapon used to perpetrate the crime was a firearm, a handgun. The defendant argues that his conviction of murder in the first degree was improper because, at the time of the incident, armed home invasion when committed with a firearm was not punishable by life imprisonment.

We start with the basic proposition that the predicate offense for a conviction of felony-murder in the first degree must be one "punishable with death or imprisonment for life." G.L. c. 265, § 1. See Commonwealth v. Jackson, 432 Mass. 82, 89, 731 N.E.2d 1066 (2000). See also Model Jury Instructions on Homicide at 15-16 (1999).2 Homicide committed during the commission or attempted commission of a felony punishable other than by death or life imprisonment is murder in the second degree, provided that the predicate felony is either "inherently dangerous" or, if not inherently dangerous, committed so that the circumstances demonstrate "the defendant's conscious disregard of the risk to human life." Commonwealth v. Matchett, 386 Mass. 492, 506, 508, 436 N.E.2d 400 (1982).

General Laws c. 265, § 18C, inserted by St.1993, c. 333, provided as follows:

"Whoever knowingly enters the dwelling place of another knowing or having reason to know that one or more persons are present within or knowingly enters the dwelling place of another and remains in such dwelling place knowing or having reason to know that one or more persons are present within while armed with a dangerous weapon, uses force or threatens the imminent use of force upon any person within such dwelling place whether or not injury occurs, or intentionally causes any injury to any person within such dwelling place shall be punished by imprisonment in the state prison for life or for any term of not less than twenty years. The sentence imposed upon a person who, after having been convicted of violating any provision of this section, commits a second or subsequent offense under the provisions of this section shall not be suspended or placed on probation."

Thus, the commission of a home invasion while armed with any dangerous weapon could result in a life sentence. Had the statute remained in this form, there would be no question that the predicate felony in this case was one punishable by life imprisonment and thus a proper vehicle for obtaining a conviction of murder in the first degree.

But, in 1998, the Legislature amended the statute, adding, in pertinent part, the following language:

"Whoever commits said crime [armed home invasion] while being armed with a firearm, shotgun, rifle, machine-gun, or assault weapon shall be punished by imprisonment in the state prison for 20 years. Said sentence shall not be reduced to less than ten years nor shall the person convicted be eligible for probation, parole, furlough, work release or receive any deduction from his sentence for good conduct...."

St.1998, c. 180, § 57.

This 1998 version of the statute was in effect on October 24, 1999, the date of the offense in this case. The plain language of the statute creates the anomalous situation in which armed home invasion committed by means of a dangerous weapon such as a knife was punishable by life imprisonment, but the same crime committed with a far more dangerous weapon, such as a firearm or a machine gun, could not be. We noted in Commonwealth v. Brown, 431 Mass. 772, 780, 730 N.E.2d 297 (2000), that the 1998 amendment to the armed home invasion statute was "lacking in coherence," "problematic for several reasons," and "appears to impose a lesser penalty for a more serious offense (home invasion by one armed with the most dangerous weapons)." We concluded that these problems were "simply the result of a legislative oversight, one we cannot remedy," and we "invite[d] the Legislature to clarify [the statute]." Id. at 781, 730 N.E.2d 297.

Whether in response to our suggestion or otherwise, in 2004, the Legislature amended the armed home invasion statute by striking the penalty provision for the commission of the crime by means of a firearm, shotgun, rifle, machine gun, or assault weapon. This amendment made armed home invasion once again punishable by imprisonment in the State prison for life (or any term of not less than twenty years), regardless of the type of dangerous weapon employed. See St.2004, c. 150, § 17.3

As the above history makes clear, the defendant's conviction of murder in the first degree is not legally permissible. Given that the maximum punishment for armed home invasion with a firearm was twenty years in October, 1999, the Commonwealth could not show that the homicide occurred in the course of a life felony, and therefore, the conviction was effectively based on insufficient evidence.

We recognize that it could be considered "absurd" to punish a crime committed with a firearm less harshly than the same crime committed with a different weapon. Cf. Perry v. Commonwealth, 438 Mass. 282, 286-287, 780 N.E.2d 53 (2002) ("It is absurd to believe that the Legislature intended that computer-stored child pornography could not be purchased or possessed but could be disseminated freely"); Commonwealth v. Rahim, 441 Mass. 273, 278, 805 N.E.2d 13 (2004) (court "need not adhere strictly to the statutory words if to do so would lead to an absurd result or contravene the clear intent of the Legislature"). The problem here is that we simply are unable to discern what the Legislature intended by the 1998 amendment. While the Legislature may have intended to punish a home invasion committed with a gun, rifle, or assault weapon more leniently than one committed with a knife, we are unable to determine what in fact the Legislature did intend by the change in the law. See Commonwealth v. Brown, supra at 780-781, 730 N.E.2d 297. Nor can we resolve uncertainties in criminal statutes in favor of the Commonwealth. "[O]rdinary rules of statutory construction require us to construe any criminal statute strictly against the Commonwealth." Commonwealth v. Marrone, 387 Mass. 702, 706, 442 N.E.2d 735 (1982), quoting Aldoupolis v. Commonwealth, 386 Mass. 260, 267, 435 N.E.2d 330, cert. denied, 459 U.S. 864, 103 S.Ct. 142, 74 L.Ed.2d 120 (1982). We are thus left to apply the statute as written.

Because the jury convicted the defendant of murder in the first degree and also found that the predicate felony was armed home invasion, we reduce the verdict to murder in the second degree. All the elements of that crime have been proved beyond a reasonable doubt. The defendant committed a homicide during the commission of a crime punishable by less than life imprisonment and said crime is an inherently dangerous one.4

2. Defendant's statement to police. Prior to trial, the defendant filed a motion to suppress statements he made to the police in September, 2000 (almost one year after the homicide), and after an evidentiary hearing, the motion was denied. The motion judge (who was not the trial judge) found that the defendant's statements "were voluntary and made with a knowing, intelligent and voluntary waiver of his Miranda rights." He also determined beyond a reasonable doubt that "the defendant read and understood the Miranda warnings and voluntarily agreed to speak with the officers about the investigation until the point when he said he needed an attorney." The judge found that the officers...

To continue reading

Request your trial
26 cases
  • Commonwealth v. Winquist
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 14 Junio 2016
  • Commonwealth v. Santana
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 29 Mayo 2013
    ...the judge's ultimate findings, and we accept the judge's subsidiary findings unless they are clearly erroneous.” Commonwealth v. Burton, 450 Mass. 55, 61, 876 N.E.2d 411 (2007), citing Commonwealth v. Cunningham, 405 Mass. 646, 655, 543 N.E.2d 12 (1989). We conclude that, even if certain po......
  • Commonwealth v. Trotto
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 24 Junio 2021
    ...during commission of felony that is "punishable with death or imprisonment for life" is murder in first degree); Commonwealth v. Burton, 450 Mass. 55, 57, 876 N.E.2d 411 (2007). At a minimum, therefore, the defendant's conviction must be reduced to felony-murder in the second degree.b. Suff......
  • Commonwealth v. Rodriguez .
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 9 Agosto 2010
    ...ordering a new trial.” Commonwealth v. Lennon, 399 Mass. 443, 449, 504 N.E.2d 1051 (1987), and cases cited. See Commonwealth v. Burton, 450 Mass. 55, 60, 876 N.E.2d 411 (2007); Commonwealth v. Gilbert, supra at 176, 849 N.E.2d 1246. 27 In the interests of justice we vacate the verdict of mu......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT