Commonwealth v. Christian

• Decision Date: 14 January 2000
• Citation: 430 Mass. 552,722 NE 2d 416
• Parties: COMMONWEALTH v. FREDERICK CHRISTIAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 552

722 NE 2d 416

COMMONWEALTH v. FREDERICK CHRISTIAN.

Supreme Judicial Court of Massachusetts, Plymouth.

September 8, 1999.

January 14, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, & IRELAND, JJ.

Ruth Greenberg for the defendant.

Gail M. McKenna, Assistant District Attorney, for the Commonwealth.

MARSHALL, C.J.

The defendant, Frederick Christian, was convicted on two indictments charging murder in the first degree on a theory of felony-murder, G. L. c. 265, § 1.¹ The jury found that he was a joint venturer with another individual, Russell Horton, in an armed robbery that served as the predicate felony for his murder convictions. The jury also convicted the defendant of assault. The judge had allowed, in part, a motion for a required finding of not guilty on the indictment charging assault with intent to murder, and reduced the charge to assault. The defendant was sentenced to two concurrent terms of life in prison on the murder convictions and a concurrent term of two and one-half years on the assault conviction.

On appeal, the defendant claims that the evidence against him was insufficient to prove armed robbery and that he should not have been convicted of felony-murder in the first degree. He further claims that the predicate felony of armed robbery cannot support his convictions of murder in this case because of the doctrine of merger. The defendant challenges several of the jury instructions and the prosecutor's conduct both during cross-examination of the defendant and closing argument. We affirm the defendant's convictions, and see no reason to exercise our power under G. L. c. 278, § 33E, to order a new trial or reduce the murder verdicts.

1. Facts. The evidence is recited in its aspect most favorable to the Commonwealth. At approximately 10 P.M. on May 25, 1994, Carlos Araujo (Carlos), his brother, Manuel Araujo (Manny), and Kepler Desir were each shot in the head by Horton. Manny and Desir died immediately from single gunshot wounds. Carlos survived.

Earlier that day another individual, Henry Garcia, was at the defendant's apartment in Brockton. Garcia told the defendant that he and Desir planned to go to New York City that evening to restock their supply of narcotics, and that Desir planned to buy more than two ounces of cocaine. Cocaine in that amount would cost over $1,500. The defendant was also interested in purchasing narcotics in New York, but could not afford to do so. Garcia testified that he paged Desir for the defendant, who then asked Desir to lend him some drugs to sell, but Desir refused to do so. After Garcia left the defendant's apartment, Horton arrived. A roommate testified that Horton used the telephone, and Horton and the defendant then left the apartment. As they left, the defendant took his gun from beneath a couch.

In the meantime, Desir had joined Manny and Carlos. Around 8 P.M. that same evening, those three picked up the defendant and Horton by car. While in the car, Desir and Horton discussed a plan to rob some local drug dealers. On Horton's instructions, Manny drove the car to the drug dealers' house, where Horton and the defendant got out of the car. They were gone for about five minutes, returned to the car, and informed the others they would return later to carry out the robbery. Back in the car Horton sat behind the driver, Manny. The defendant sat in the middle. Carlos was seated behind Desir on the passenger side of the car. At Horton's direction, Manny drove the car to a parking lot near a school building where he stopped the car and they all waited.

Without warning, Horton opened fire on Carlos, Manny, and Desir. He shot each in the head with single shots. Carlos was the only survivor. While feigning death, Carlos heard either the defendant or Horton say, "Turn off the lights," and other snippets of conversation discussed below. The defendant and Horton then left the car. Carlos dragged himself out of the car and obtained help. When the police arrived they found Manny and Desir dead. Desir's shirt had been pulled up, suggesting that his pockets had been searched. The police found little more than one dollar in his pockets.

The defendant and Horton fled to Barry Stephens's apartment nearby. Horton told Stephens in the defendant's presence that he had killed three men and asked Stephens to hide a gun. Stephens refused. As the defendant and Horton left, the defendant turned to Stephens and told him to "keep it under your hat." The defendant made efforts to evade arrest, but the police took him into custody the next day. He gave several contradictory statements to the police, at first denying any knowledge of the killings, a statement he later disavowed.

2. Required finding of not guilty. The defendant argues that the evidence at trial was insufficient to prove armed robbery, the predicate felony of his convictions of felony-murder in the first degree. Rather, he contends, the evidence supported only an inference that his intent to steal occurred, if at all, subsequent to the killings, and that the evidence was insufficient to show he shared any intent with Horton to commit any act or that he knew Desir was carrying any money.

In reviewing the denial of a motion for a required finding of not guilty we consider whether "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). Although it may be arguable in a particular case that other inferences could be drawn from some of the evidence, our calculus does not include the fact "that some of the evidence could be characterized as equivocal or contradictory." Commonwealth v. James, 424 Mass. 770, 785 (1997), quoting Commonwealth v. Ruci, 409 Mass. 94, 97 (1991). Using this standard, the Commonwealth offered more than sufficient evidence from which a rational jury could have found beyond a reasonable doubt that the defendant, as a joint venturer, committed an armed robbery.

Garcia testified that the defendant knew Desir was going to New York that evening to purchase cocaine for which he would be carrying a significant amount of money. That evening the defendant took his gun as he went with Horton to meet Desir and the Araujo brothers. Immediately after the shootings, Carlos heard the defendant ask Horton, "Did you do him?," and Horton replied, "go through his pockets," after which Carlos felt the defendant moving about the car. Desir's shirt had been pulled up raising an inference that the defendant had searched Desir's pockets. Perhaps as significant is what Carlos did not recall hearing after the shooting: the defendant did not express surprise or consternation, he did not plead for his own life, and he did not attempt to escape. Horton did not shoot the defendant, suggesting that the defendant was part of the plan to rob Desir. After the killings both men went to the home of Stephens where the defendant told Stephens to keep the killings "under [his] hat." Based on this evidence the jury could have found, beyond a reasonable doubt, that the defendant acted in concert with Horton to carry out their prearranged plan to rob Desir of his money. The judge did not err in denying those portions of the motion for a required finding of not guilty that the defendant now challenges.

3. Felony-murder merger doctrine. The defendant argues that he is entitled to a directed verdict of acquittal because of the merger doctrine governing convictions of felony-murder. An armed robbery by force, as opposed to threat of force, he claims, is not sufficiently independent of the murder to constitute a separate offense, particularly where, as here, a defendant shoots a victim before taking his property. The defendant misapprehends the doctrine.

We can envision no situation in which an armed robbery would not support a conviction of felony-murder. See Commonwealth v. Currie, 388 Mass. 776, 785 (1983). The crime of robbery is the (1) stealing or taking of personal property of another (2) by force and violence, or by assault and putting in fear. G. L. c. 265, § 19.² Robbery is enhanced to an armed robbery when a defendant is armed. G. L. c. 265, § 17. It is the first element of the crimes of robbery and armed robbery, namely the stealing or taking of property, that qualifies them for application of the felony-murder rule. It is the intent to do that conduct (here stealing from Desir) that serves as the substitute for the malice requirement of murder.³ Where a defendant commits the felony of larceny, that crime could not serve as the predicate felony for felony-murder in the first degree, for larceny is not punishable by life imprisonment. The element that enhances larceny to a felony punishable by life in prison, namely the second element of robbery, by force and violence, or by assault and putting in fear, does not negate the intent to steal or take property that is the substitute for the malice requirement of murder. Cf. Commonwealth v. Wade, 428 Mass. 147, 153 (1998) ("element that provides for the enhancement of the crime of rape to a felony punishable by life in prison [kidnapping, or infliction of serious bodily injury], does not negate the intent to commit the rape that is the substitute for the malice requirement of murder"). The manner in which a robber accomplishes the taking of property does not inform the merger analysis, and a defendant who commits a robbery in a manner that intentionally heightens the possibility of the victim's death, by shooting the victim first, cannot escape application of the felony-murder rule. As a matter of logic and policy, those who inflict bodily injury on their victims before they complete their crimes are not treated more leniently than those who do not.

4. Instruction on larceny. The defendant asked the...