Commonwealth v. Housen

• Decision Date: 20 January 2011
• Docket Number: SJC–10534.
• Citation: 458 Mass. 702,940 N.E.2d 437
• Parties: COMMONWEALTHv.Corinthian Calvin HOUSEN, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

458 Mass. 702

940 N.E.2d 437

COMMONWEALTH

v.Corinthian Calvin HOUSEN, Jr.

SJC–10534.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Sept. 14, 2010.Decided Jan. 20, 2011.

Stewart T. Graham, Jr., for the defendant.Robert C. Thompson, Assistant District Attorney, for the Commonwealth.Present: MARSHALL, C.J., IRELAND, SPINA, CORDY, BOTSFORD, & GANTS, JJ. ¹SPINA, J.

The defendant was convicted of murder in the first degree on a theory of joint venture felony-murder and of the predicate felony, attempted armed robbery. The latter conviction was placed on file and is not before us on appeal. The defendant argues that he is entitled to a new trial, because (1) there was insufficient evidence of principal liability and the jury did not specify whether they found the defendant guilty as a principal or as a joint venturer; (2) the Commonwealth violated the defendant's due process rights by arguing contradictory theories of principal liability at the separate trials of the defendant and his codefendant; (3) a medical examiner and a firearms expert testified as to hearsay contained in an autopsy report and diagrams prepared by a nontestifying medical examiner, and they gave opinions based on those materials as well as autopsy photographs taken by the nontestifying medical examiner, in violation of the defendant's right to confront and cross-examine witnesses under the Sixth Amendment to the United States Constitution; (4) trial counsel was ineffective for stipulating to the admission of the autopsy photographs; and (5) the judge incorrectly instructed that attempted armed robbery required the Commonwealth to prove general intent rather than specific intent to rob. We affirm the conviction of murder and decline to exercise our power under G.L. c. 278, § 33E.

1. Background. The jury could have found the following facts. We reserve other details for discussion of particular issues.

The victim made a living selling marijuana from his third-floor apartment at 180–182 Green Street in Brockton, where he lived with his girl friend. The front door to the apartment building was always kept locked, and it had no electronic unlocking system. The victim's customers would ring his doorbell outside the front door to the apartment building. The victim either would go down to the front door and let them in or would go to the third-floor porch and ask who it was. If he knew the person he would throw down the key to the front door. The victim owned a .40 caliber semiautomatic handgun that he kept loaded at all times with two bullets. The gun was kept inside the middle cushion of the couch in his living room.

On the night of April 18, 2001, shortly before midnight, Joaquim Costa and his girl friend, who lived in a second-floor apartment at 180–182 Green Street, were sitting and talking in his car outside the apartment building. A maroon Toyota Camry automobile pulled up and parked in front of them. Three African–American men wearing hooded jackets got out of the Toyota and approached the apartment building. Two men entered the building. The third remained outside and rang the doorbell. He eventually entered.

The victim's girl friend, who was in bed by herself, heard people entering their apartment. One voice, which she recognized as that of Damon Cannon, said, “I don't know, an ounce.” She previously had seen Cannon, who lived at 102 Green Street, at the apartment about seven or eight times buying marijuana. As she was getting out of bed she heard a deeper, louder voice say, “Run him,” or “Run it,” which she understood to mean the victim was being robbed. The defendant's voice is deeper and lower than Cannon's voice, which is “a little high pitched.”

The victim's girl friend then heard three gunshots in rapid succession, followed by a fourth shot after a brief pause. As she approached the living room, she saw an African–American man run out the living room door into the common hallway. Damon Cannon was standing in front of the fish tank in the living room. He “looked shocked, surprised, [and] scared.” He turned and ran out the door. She did not notice if he had a weapon, but he did not appear to have anything in his hands or tucked under his waistband.

The victim was lying on his back on the living room floor near the couch. He was bleeding and his eyes were twitching. His girl friend telephoned 911. The victim's gun was on the floor near his left hand. It had two live rounds of ammunition. His wallet was on the floor near the gun. It was empty, but he had spent all his cash on dinner with his girl friend earlier that evening.

A neighbor who lived in the other third-floor apartment heard the gunshots, followed by two voices saying, “Let's go, let's go.” He then heard, in sequence, people running down the stairs and “a car screeching off.” A second-floor tenant heard two people running down the stairs just after the gunshots. She saw the driver of the Toyota help one person into the back seat of the car. A third person was already in the car. Joaquim Costa was still sitting in his car with his girl friend when he saw the same three men come out of the apartment building, get into the Toyota, and speed off. He did not specify whether the three men emerged from the building together. A woman who lived across the street heard the four gunshots and then saw two men run out of the apartment building and get into the Toyota, which then sped away.

The victim sustained two gunshot wounds to the back of his neck, and one to the back of his right wrist. Death was caused by a combination of (1) blood from the two neck wounds entering his airways, making it difficult for him to breathe, (2) loss of blood from the two neck wounds, and (3) brain damage resulting from shock waves produced by the bullet that entered the middle of the neck and traveled toward the right cheek, where a portion of the bullet exited the body.

Four projectiles were recovered. One was on the rug behind the couch, and a second went through the rug and into the floor. A third was recovered from the victim's clothing at a hospital. A portion of a fourth was recovered from the victim's right cheek at autopsy by a medical examiner. Two small lead fragments from one of the projectiles also were removed at autopsy from the victim's right wrist. A firearms expert opined that all four projectiles were fired from a single .38 caliber class weapon, which was not the victim's gun.

A medical examiner who did not perform the autopsy and the firearms expert opined that the presence of soot inside one of the neck wounds meant the gun that fired the bullet causing that wound was no more than six inches from the victim's neck at the time of discharge. The two experts differed as to the distance between the second neck wound and the end of the gun barrel at the time of discharge. Based on the pattern of stippling, the medical examiner opined that distance to be four to eight inches, while the firearms expert believed the distance to be one to two feet. Both experts testified that the stippling pattern around the victim's wrist wound was produced by a gun that was fired within a distance of two feet.

Deoxyribonucleic acid (DNA) testing of blood on a coffee cup in the victim's apartment, blood on the wall by the living room door, blood on the walls of the interior common stairway leading to the front door of the building, and blood on the sidewalk leading up to the curb indicated that the defendant was the source of the blood. The defendant, using the name Corey Davis, sought medical attention the next day for lacerations on his left ring finger and thumb.

The defendant testified that he accompanied Cannon and Leroy Drane to the victim's apartment to purchase marijuana. He said the victim was standing in front of him when his facial expression changed. The victim reached into the couch and took out a gun. The defendant turned to flee when Cannon, who was behind him, fired a gun. A bullet hit the defendant's hand. He heard three more shots as he was leaving the apartment. He ran downstairs and entered the Toyota. Drane then emerged from the apartment building, followed by Cannon. The defendant denied knowing Cannon had a gun, and he denied involvement in the planning of a robbery.

2. Sufficiency of the evidence. The defendant contends that the evidence was insufficient to convict him as a principal in a joint venture felony-murder, and where the jury did not specify whether their verdict was based on a finding of principal or joint venture liability, his conviction must be reversed.

We do not “examine the sufficiency of the evidence separately as to principal and joint venture liability.” Commonwealth v. Zanetti, 454 Mass. 449, 468, 910 N.E.2d 869 (2009). Instead, “we ... examine whether the evidence is sufficient to permit a rational juror to conclude beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, with the intent required to commit the crime.” Id. The evidence in this case was sufficient to support a finding that the defendant was the shooter, and in any event it supported a finding that he participated in the joint venture.

The evidence was sufficient, see Commonwealth v. Latimore, 378 Mass. 671, 676–678, 393 N.E.2d 370 (1979), to support a conviction of the defendant for felony-murder based on a predicate offense of attempted armed robbery and the principle of joint venture liability. There was ample evidence that the defendant and others planned to rob the victim, and attempted to rob him. The three men approached the apartment building wearing “hoodies” that concealed their features. Two entered while one stayed behind to ring the doorbell. Cannon, a customer of the victim, would have been in a position to know that the victim would open the door to his apartment and, to see who rang, either go downstairs to the front door, or go out to the third-floor porch and look down at the front door. Once...