Commonwealth v. Concepcion

Citation164 N.E.3d 842,487 Mass. 77
Decision Date16 March 2021
Docket NumberSJC-12382
Parties COMMONWEALTH v. Raymond CONCEPCION.
CourtUnited States State Supreme Judicial Court of Massachusetts

Elizabeth A. Billowitz, Boston, for the defendant.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Katherine E. Burdick, for Juvenile Law Center, amicus curiae, submitted a brief.

J. Leon Smith, Jr., Roxbury, for Citizens for Juvenile Justice & another, amici curiae, submitted a brief.

Present: Budd, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

LOWY, J.

On March 16, 2016, a jury convicted the defendant, Raymond Concepcion, of murder in the first degree, G. L. c. 265, § 1, for killing the victim, Nicholas Martinez.1 At the time of the offense, the defendant was fifteen years old and had a history of trauma, mental health issues, and impaired cognitive abilities. The judge sentenced the defendant to life with the possibility of parole after twenty years.2 ,3 The defendant appealed.

On appeal, the defendant does not contest that he killed the victim. Instead, he argues that his youth and mental impairments

were unlawfully ignored during his indictment, trial, and sentencing. Specifically, the defendant argues (1) that our decision in Commonwealth v. Walczak, 463 Mass. 808, 810, 979 N.E.2d 732 (2012), which requires prosecutors to instruct the grand jury on mitigating circumstances and defenses when seeking an indictment of a juvenile, applies retroactively to his case; (2) that both his sentence and G. L. c. 119, § 74 -- the statute mandating that juveniles charged with murder in the first or second degree committed when they were between fourteen and eighteen years old be tried in the Superior Court, not the Juvenile Court -- are unconstitutional; and (3) that several of the jury instructions were erroneous. Additionally, the defendant asks us to exercise our authority under G. L. c. 278, § 33E, to reduce the murder verdict. Although we reject the defendant's other arguments, in the circumstances of this case we do exercise our authority under G. L. c. 278, § 33E, and reduce the verdict to murder in the second degree.4

Background. 1. Facts. We summarize the facts the jury could have found, reserving certain details for discussion. Although the defendant did not know the victim, both had been members of the Mission Hill gang in Boston at different points in time. In September 2011, the victim left Massachusetts -- and apparently the gang -- returning to Boston in June 2012.5 Sometime around May 2012, the defendant joined the gang. The defendant was approximately fifteen years old at the time. He claims that, despite just recently having joined, he already wanted to leave the gang by the fall of 2012.

On October 17, 2012, fellow Mission Hill gang member Derrick Hunt told the defendant to retrieve a gun the defendant had purchased two months earlier.6 Hunt then told the defendant to get into a Nissan Maxima with two other members of the gang, Jaquan Hill and Shakeem Johnson. Other members told the defendant that shooting the victim was the only way that the defendant could leave the gang. The defendant believed that if he tried to leave the gang on his own accord, both he and his family would be harmed or killed.

Hill and Johnson proceeded to drive the defendant around Boston. They found the victim -- who was driving in his car -- and followed him for about twenty minutes. Although the defendant knew Johnson, he had not previously known Hill. Hill was five feet, eight inches tall and weighed 245 pounds, while Johnson was over six feet tall and weighed 300 pounds.7 The defendant was approximately five feet, seven inches tall and weighed 130 pounds. Hill and Johnson told the defendant that he had no choice but to follow their orders. Those orders issued while the three were stopped near a traffic light on Southampton Street. Hill told the defendant to get out of the car. Hill then pointed to the victim's car, which was stopped at the traffic light, and told the defendant to "get him."

The defendant got out of the Maxima and, gun in hand, approached the victim's car. From behind the driver's side of the victim's car, the defendant fired two rounds through the driver's side rear window at the victim. The defendant then readjusted his position and fired two to three more shots, this time straight through the driver's side window. The victim's car then accelerated and crashed into another vehicle. Three bullets in all struck the victim, who was later pronounced dead.

After shooting the victim, the defendant returned to the Maxima. Hill, Johnson, and the defendant fled the scene in the vehicle. A nearby police detective heard the gunshots. The detective saw the defendant reenter the Maxima and promptly followed the vehicle, activating his cruiser's lights and siren. A brief pursuit ensued, in which other officers joined and which ended when heavy traffic stopped the Maxima. Police arrested Hill, Johnson, and the defendant. Initially denying involvement, the defendant soon confessed to having shot the victim.

2. Procedural history. On December 4, 2012, a Suffolk County grand jury indicted the defendant on charges of murder, in violation of G. L. c. 265, § 1, and carrying a firearm without a license, in violation of G. L. c. 269, § 10 (a ). Hill and Johnson were also indicted as joint venturers. Soon after, the defendant filed a motion for transcription of the instructions to the grand jury, which was denied. The defendant's case was later severed from Hill and Johnson's cases.

At trial, the defendant did not contest that he shot the victim. Rather, he argued that his age, previous trauma, and multiple mental impairments

precluded him from forming the requisite intent. To this end, a clinician who worked with the defendant while he was in a Department of Youth Services (DYS) detention center awaiting trial testified that the defendant acted at times like someone who was eight or nine years old, rather than someone who was fifteen years old. Specifically, the clinician noted that the defendant would go through cycles where he threw "temper tantrums" and then started to cry uncontrollably before staff would have to soothe him. The clinician further testified that the defendant was a "follower" and that "other kids would tell him to do certain things and he would do them."

The defendant's mother testified that the defendant had previously witnessed a series of traumatic incidents. When the defendant was around eight years old, he watched his father get shot five times in one incident and survive. The defendant later witnessed a violent robbery of a store while playing outside. Further, the defendant saw his uncle accidently shoot himself in the leg while cleaning a pistol. Finally, the defendant witnessed a police officer shoot his brother, who also survived the episode.

As an expert witness for the defense, a psychologist who had examined the defendant over the course of ten hours and performed several psychological tests testified that the defendant functioned at the level of someone who was nine or ten years old and that he lacked age-level adaptive skills. According to the psychologist, the defendant had an intelligence quotient of sixty-six, a limited capacity for abstraction or problem-solving, and a limited capacity to form intent. The psychologist further testified that the defendant had global developmental delay

of moderate severity and submitted a report detailing how the defendant suffered from posttraumatic stress disorder and a persistent depressive disorder. Boston Children's Hospital and DYS records also referenced a history of traumatic brain injury and documented concerns about the defendant's cognitive delay.8 As a consequence of these conditions combined with the defendant previously having witnessed multiple people being shot, the psychologist testified that the defendant lacked the ability to understand the full meaning of killing someone.

The psychologist's testimony was disputed by the Commonwealth's expert, a psychiatrist who had examined the defendant for little more than one hour sometime before the trial. The psychiatrist testified that the defendant's cognitive ability was "in the average range" and that he had "adequate day to day street savvy to go about his circumstances." As a result, the psychiatrist believed that the defendant had no psychological, cognitive, or emotion conditions that would have impaired his ability to form intent.9

On March 16, 2016, the jury found the defendant guilty of murder in the first degree based on extreme atrocity or cruelty and guilty of unlawful firearm possession. The judge sentenced the defendant to life with the possibility of parole after twenty years on the murder conviction and from four to five years in State prison on the firearm conviction, to be served concurrently with the murder sentence. The defendant filed a timely notice of appeal.

Discussion. 1. Grand jury proceeding. Days after the defendant was indicted, we decided Walczak, holding that when the Commonwealth seeks to indict a juvenile for murder and presents to the grand jury "substantial evidence of mitigating circumstances or defenses (other than lack of criminal responsibility)," the prosecutor must "instruct the grand jury on the elements of murder and on the significance of the mitigating circumstances and defenses." Walczak, 463 Mass. at 810, 979 N.E.2d 732. Soon after his indictment, the defendant filed a motion for transcription of the grand jury instructions, arguing that Walczak’s rule applied retroactively to his case and that the grand jury instructions were necessary for him to put forward that argument. The judge denied the motion. The defendant now argues that Walczak should apply retroactively to his case.

Despite the defendant's argument otherwise, the issue of retroactivity does not fully arise here.10 The evidence of mitigating circumstances that Walczak requires be introduced to the grand...

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    • United States
    • North Carolina Supreme Court
    • 17 Junio 2022
    ...or ‘unusual’ would seem necessarily broader than the set of punishments which are both ‘cruel’ and ‘unusual.’ "); Commonwealth v. Concepcion , 487 Mass. 77, 86, 164 N.E.3d 842, cert. denied sub nom. Concepcion v. Massachusetts , ––– U.S. ––––, 142 S. Ct. 408, 211 L.Ed.2d 219 (2021) (stating......
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    • United States State Supreme Judicial Court of Massachusetts Supreme Court
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    ...condition" alone to kill the victim. Commonwealth v. Colleran, 452 Mass. 417, 434, 895 N.E.2d 425 (2008). See Commonwealth v. Concepcion, 487 Mass. 77, 95, 164 N.E.3d 842 (2021) ("Mental illness alone is generally insufficient to support a verdict reduction under G. L. c. 278, § 33E"). On t......
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    ...leg and abdomen. The act of doing so clearly created a plain and strong likelihood that death would follow. See Commonwealth v. Concepcion, 487 Mass. 77, 92, 164 N.E.3d 842, cert. denied, ––– U.S. ––––, 142 S. Ct. 408, 211 L.Ed.2d 219 (2021). See also Lopez, 485 Mass. at 485, 151 N.E.3d 367......
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