Commonwealth v. Hanright

• Decision Date: 28 August 2013
• Docket Number: SJC–11404.
• Parties: COMMONWEALTH v. Scott HANRIGHT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

466 Mass. 303

994 N.E.2d 363

COMMONWEALTH

v.Scott HANRIGHT.

SJC–11404.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 6, 2013.

Decided Aug. 28, 2013.

Casey E. Silvia, Assistant District Attorney (Marian T. Ryan, District Attorney, with her) for the Commonwealth.

John P. Osler, Committee for Public Counsel Services, for the defendant.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

SPINA, J.

A grand jury returned twenty-two indictments against the defendant, Scott Hanright, including indictments charging murder in the first degree and various counts of masked armed robbery. The charges arose out of a robbery, perpetrated by Domenic Cinelli, of a jewelry counterat a department store in Woburn on December 26, 2010, and from other offenses Cinelli committed while attempting escape, including shooting a police officer to death. The Commonwealth is proceeding against the defendant as a joint venturer and coconspirator. In relevant part,¹ the defendant moved to dismiss indictments relating to Cinelli's offenses committed outside the department store as Cinelli tried to flee the scene of the armed robbery on the ground that the charges were not supported by sufficient evidence.² See Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982). These charges include: (1) assault and battery with a deadly weapon against a person over sixty years or older against Officer John Maguire, G.L. c. 265, § 15A; (2) assault and battery on a public employee against Maguire, G.L. c. 265, § 13D; (3) assault by means of a dangerous weapon against Officer Glenn Grammar, G.L. c. 265, § 15B; (4) assault by means of a dangerous weapon against Douglas Matney, G.L. c. 265, § 15B; and (5) discharge of a firearm within 500 feet of a building, G.L. c. 269, § 12E. In addition, the defendant moved to dismiss so much of the indictment alleging the murder of Maguire as included any theory of murder other than felony-murder. The motion judge allowed the portion of the defendant's motion that sought dismissal of the listed charges and so much of the murder indictment as included theories of deliberate premeditation and extreme atrocity or cruelty because the judge determined that the Commonwealth presented no evidence that the defendant either participated in or intended any of the events after Cinelli left the department store following the robbery. See Commonwealth v. McCarthy, supra. The Commonwealth appealed, and we transferred the case to this court on our own motion. We reverse the portion of the motion judge's decision that dismissed the challenged indictments and precluded the Commonwealth from proceeding at trial on all three theories of murder.

1. Facts. We recount the evidence presented to the grand jury in the light most favorable to the Commonwealth. See Commonwealth v. Walczak, 463 Mass. 808, 812, 979 N.E.2d 732 (2012) (Lenk, J., concurring). The defendant lived with his grandmother and met Cinelli, whom the defendant knew to have been imprisoned for over three decades for robbing jewelry stores, when Cinelli became romantically involved with the defendant's grandmother. The defendant, aged nineteen at the time, did not own an automobile and did not drive, and Cinelli began driving the defendant to work. Approximately one month before the robbery, Cinelli mentioned the idea of robbing the jewelry counter while he and the defendant were out driving. Cinelli told the defendant that the plan was to go into the store with a gun and a mask, approach the jewelry counter, and demand money or jewelry. He also stated that he preferred to commit the robbery during a snow storm. The defendant knew that Cinelli had a gun because Cinelli had showed the defendant a gun when the two were in Cinelli's apartment. On several occasions following the initial conversation about robbing the jewelry counter, Cinelli and the defendant drove possible escape routes. A few days before the robbery, Cinelli told the defendant that he had gone to the store by himself with the intention of robbing it, but changed his mind because police officers were present.

A blizzard dropped over a foot of snow on the evening of the robbery. Cinelli telephoned the defendant and asked if he wanted to go for a ride. Cinelli arrived at the defendant's home shortly thereafter, and the defendant went outside and got into Cinelli's automobile. The defendant realized that Cinelli intended to commit the robbery that evening because Cinelli was wearing a fake beard and a ski mask, and also because of the snow storm. The defendant later told the police that he did not see a gun in the automobile, but that he “just knew” that Cinelli was armed and was afraid that Cinelli would shoot someone.

Cinelli drove to the store and parked the car on the intended escape route. He left the key in the ignition and told the defendant to leave his door unlocked. Cinelli then gave the defendant a ski mask (which the defendant later told the police he put on his head but did not pull down over his face) and told the defendant that he was to run back to the car after Cinelli completed the robbery. Both Cinelli and the defendant left their cellular telephones in the automobile. The two then walked to the department store, and the defendant waited outside while Cinelli went inside. The defendant later denied that he was asked to, or did, play an active role in the robbery, and specifically denied that he was to serve as a lookout. He claimed that he merely went along because he was afraid of Cinelli, and because he hoped to share in some of the proceeds from the robbery.

Inside the store, Cinelli demanded jewelry from several department store employees, and collected it in a duffle bag. Responding to a telephone call that a robbery was in progress, Officer Grammar arrived on the scene. He observed the defendant standing outside, but then focused his attention on Cinelli, who was coming out of the department store carrying the duffle bag. Cinelli pointed a gun in Grammar's direction, and a chase ensued. Matney, who was driving a snow plow, saw the chase and maneuvered the snow plow to block Cinelli's exit. Although Matney did not observe a gun at that time, Cinelli raised his arm toward Matney as if preparing to shoot, causing Matney to raise the bucket on the snow plow to protect himself. Officer Maguire then arrived on the scene and joined in the chase. Upon seeing Cinelli, Maguire got out of his police vehicle and a gunfight ensued. Both Cinelli and Maguire died from gunshot wounds.

While the police were pursuing Cinelli, the defendant threw his ski mask into the trash and walked away from the scene of crime. As he was walking, he saw an elderly woman sweeping her porch and asked if he could use her telephone. He telephoned his aunt and asked for her boy friend's telephone number, and then telephoned the boy friend and asked to be picked up in front of a nearby store. The defendant was arrested before the boy friend arrived.

[466 Mass. 307]2. Joint venture liability for escape-related crimes. The issue in this appeal is whether the defendant may be held liable on a theory of joint venture for the offenses Cinelli committed outside the store while attempting escape on the ground that such crimes were part of the over-all scheme of the underlying armed robbery. We conclude that the defendant may be liable for Cinelli's escape-related crimes, but only if the Commonwealth proves beyond a reasonable doubt that he participated in, and intended, such crimes.

The felony-murder rule “imposes criminal liability for homicide on all participants in a certain common criminal enterprise if a death occurred in the course of that enterprise.” ³Commonwealth v. Matchett, 386 Mass. 492, 502, 436 N.E.2d 400 (1982), quoting Commonwealth v. Watkins, 375 Mass. 472, 486, 379 N.E.2d 1040 (1978). To establish liability for felony-murder on a theory of joint venture the Commonwealth must prove “that a homicide occurred in the commission or attempted commission of that felony[.] [C]omplicity in the underlying felony is sufficient to establish guilt of murder in the first or second degree ... if the homicide followed naturally and probably from the carrying out of the joint enterprise” (emphasis added). Commonwealth v. Ambers, 370 Mass. 835, 839, 352 N.E.2d 922 (1976). “The effect of the felony-murder rule,” both for principals and accomplices, “is to substitute the intent to commit the underlying felony for the malice aforethought required for murder” (emphasis added). Commonwealth v. Matchett, supra. See Commonwealth v. Housen, 458 Mass. 702, 708, 940 N.E.2d 437 (2011); Commonwealth v. Ambers, supra. Consequently, a defendant may be liable for felony-murder on a theory of joint venture not because he or she shared with the principal the requisite mental state for murder, but because he or she shared with the principal the intent to commit the underlying felony, which satisfies the intent requirement for felony-murder. See Commonwealth v. Housen, supra;Commonwealth v. Ambers, supra.

Outside the narrow context of joint venture felony-murder, we have held that joint venture liability should not extend to unintended crimes, even if such unintended crimes are the “natural and probable” consequences of a crime in which a defendant participated as a joint venturer. See Commonwealth v. Hogan, 379 Mass. 190, 193, 396 N.E.2d 978 (1979), and cases cited; Commonwealth v. Richards, 363 Mass. 299, 306–307, 293 N.E.2d 854 (1973). In Commonwealth v. Richards, supra at 305–308, 293 N.E.2d 854, we considered whether a joint venturer in an armed robbery may be liable for a coventurer's crime of assault with intent to murder a police officer who arrived on the scene where the assault was committed in the course of, as opposed to during escape from, the armed robbery. We “firmly rejected” the argument that a joint venturer should be liable for “any crime committed by any of his...