Commonwealth v. Kilburn

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: COWIN, J.
• Citation: 780 NE 2d 1237,438 Mass. 356
• Decision Date: 03 January 2003
• Parties: COMMONWEALTH v. ANDREW W. KILBURN.

438 Mass. 356
780 NE 2d 1237

COMMONWEALTH
v.
ANDREW W. KILBURN

Supreme Judicial Court of Massachusetts, Suffolk.

October 11, 2002.

January 3, 2003.

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

Stephen Hrones for the defendant.

Jane A. Sullivan, Assistant District Attorney, for the Commonwealth.

COWIN, J.

In 1993, a jury convicted the defendant of murder in the first degree based on a theory of felony-murder and joint venture. We affirmed the conviction and denied relief after reviewing the entire record pursuant to G. L. c. 278, § 33E. See Commonwealth v. Kilburn, 426 Mass. 31, 38 (1997). In June, 2001, the defendant filed a motion for release from unlawful restraint pursuant to Mass. R. Crim. P. 30 (a), 378 Mass. 900

438 Mass. 357

(1979). The motion was denied by the trial judge, as was a motion for reconsideration. The defendant then sought leave to appeal by petitioning a single justice of this court pursuant to the "gatekeeper" provision of G. L. c. 278, § 33E.¹ The single justice allowed the defendant's petition with regard to two issues: (1) whether the defendant may be convicted of joint venture felony-murder when the acts constituting the predicate felony, armed assault in a dwelling with intent to commit a felony, G. L. c. 265, § 18A, also caused the death of the victim; and (2) whether the defendant waived this issue by failing to raise it in his direct appeal. We affirm the denial of the motion for a new trial

The jury could have found the following facts relating to the defendant's current claim. On September 2, 1992, an unknown gunman shot and killed Charles Laliberte in his apartment in the South Boston section of Boston. Alex Loer, the only witness to the shooting, was visiting Laliberte when an assailant, brandishing a handgun, burst into the apartment, pushing Laliberte away from the doorway. When the gunman noticed Loer he first appeared confused, and then began to order both Loer and Laliberte about the apartment. After approximately one minute of seemingly random directions, the gunman ordered Loer into the bedroom. Five seconds later Loer heard the sound of a gunshot. When Loer looked over his shoulder Laliberte was dead, shot in the back of the head, and the gunman had departed.

The gunman was seen escaping in an automobile driven by another person. The investigation quickly focused on the defendant, who owned the automobile. He admitted being present in his car when the incident occurred and made several other incriminating statements. After he was arrested and given the Miranda warnings, the defendant told the police that he had

438 Mass. 358

not realized that the gunman had shot Laliberte while in the apartment; "they had just gone there to `do'" Laliberte, and he "should have never died."

1. The Defendant's Merger Claim.

The defendant asks us to overturn his felony-murder conviction because the necessary predicate felony, armed assault in a dwelling, G. L. c. 265, § 18A,² merged with the murder itself. The defendant's claim is complicated by the fact that the evidence presented to the jury indicates that the gunman (and hence the defendant, who is liable as a joint venturer) committed not one, but two separate armed assaults on Laliberte,³ and both were encompassed within the Commonwealth's theory of the crime.

The first armed assault on Laliberte occurred immediately after the gunman entered Laliberte's apartment. According to Loer's uncontested testimony, Laliberte opened the door for an individual who immediately brandished a gun and pushed the victim backward, thereby committing an armed assault in a dwelling. At this point, the gunman noticed Loer for the first time and (again according to Loer's uncontested testimony) stopped in confusion. At that time the elements of an assault, namely objectively menacing conduct intended to arouse fear or the apprehension of imminent bodily harm, see Commonwealth v. Gorassi, 432 Mass. 244, 247 (2000), had already been satisfied. After a short interlude, during which the gunman ordered both Loer and the victim about the apartment, the gunman shot the victim in the back of the head, thus violating § 18A a second time.

438 Mass. 359

The doctrine of felony-murder provides that "the conduct which constitutes the felony must be `separate from the acts of personal violence which constitute a necessary part of the homicide itself'" (emphasis added). Commonwealth v. Gunter, 427 Mass. 259, 272 (1998), quoting Commonwealth v. Quigley, 391 Mass. 461, 466 (1984), cert. denied, 471 U.S. 1115 (1985). Absent this requirement, the assault that precedes every killing would serve as the predicate for felony-murder in the first degree, and the distinction between degrees of murder would be lost. Whether a particular felony is sufficiently independent from a killing to support a felony-murder conviction is a question that defies categorical analysis; we therefore review claims of merger on a "case-by-case basis with reference to specific facts." Commonwealth v. Gunter, supra at 275 n.15. In the case of an armed assault in a dwelling, merger occurs when "the acts constituting that assault also cause the homicide." Id. at 273-274

While the act of shooting Laliberte (the second assault on the victim) clearly caused the homicide in this case, the gunman's brandishing of a pistol with the intention of arousing fear in Laliberte (the first assault on the victim) did not. Laliberte died of a gunshot wound; he did not die of fright. Applying the causation test for merger articulated in the Gunter case, we conclude that, while the second of the two assaults on Laliberte merged with the murder, the first did not.⁴

This determination, by itself, does not resolve the defendant's claim. The judge did not distinguish between the two possible violations of § 18A when he charged the jury on felony-murder.⁵

438 Mass. 360

Thus we are unable to determine whether the jury found that the predicate felony for the felony-murder was the first assault on Laliberte, the second assault on Laliberte, or both

2. Standard of Review.

The defendant...