Commonwealth v. Paulding

• Decision Date: 24 October 2002
• Citation: 438 Mass. 1,777 NE 2d 135
• Parties: COMMONWEALTH v. EDWARD PAULDING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

438 Mass. 1

777 NE 2d 135

COMMONWEALTH v. EDWARD PAULDING.

Supreme Judicial Court of Massachusetts, Suffolk.

September 9, 2002.

October 24, 2002.

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

Stephen Hrones for the defendant.

Rami M. Vanegas, Assistant District Attorney, for the Commonwealth.

GREANEY, J.

A jury in the Superior Court convicted the defendant of unlawful possession of a firearm and of felony-murder in the first degree based on his participation in three armed robberies in which one victim was shot and killed.¹ Represented by new counsel on appeal, the defendant argues that the judge (1) violated G. L. c. 265, § 1, and his Federal due process rights, when she instructed the jury that they could find him guilty of murder in the second degree, but refused to instruct on the elements of that crime; and (2) abused her discretion in allowing the prosecutor to impeach him by his prior convictions. Resolution of the first point requires reexamination of Commonwealth v. Dickerson, 372 Mass. 783, 795-798 (1977), in which it was stated, and of Commonwealth v. Brown, 392 Mass. 632, 643-645 (1984), in which it was later held (and related subsequent cases²), that G. L. c. 265, § 1, requires a judge to instruct on murder in the first and second degrees when there is evidence of murder in the first degree, even though no reasonable view of the evidence supports a conviction of murder in the second degree. We now reject the referenced constructions of G. L. c. 265, § 1, in the Dickerson and Brown cases, and conclude that the circumstances of this case do not warrant reversal of the defendant's murder conviction. We also reject the defendant's second point concerning his impeachment. Finally, we find no reason to exercise our authority under G. L. c. 278, § 33E, to reduce the degree of guilt on the murder conviction or to order a new trial. Accordingly, we affirm the defendant's convictions of murder in the first degree and unlawful possession of a firearm. We vacate, as duplicative, the defendant's conviction on one of the armed robbery charges and order that that indictment be dismissed.

Based on the Commonwealth's evidence, the jury could have found the following facts. At approximately 11 P.M. on August 23, 1996, Wendell Diaz arrived at Dennis Street Park in the Roxbury section of Boston, where he met an acquaintance, Victor Fantauzzi, and two other men, the murder victim and Eliot Flores. The men were sitting on a park bench smoking a "blunt," a cigar containing marijuana. Diaz joined them. Diaz saw the defendant and a second man, later identified as Jose Duarte, ride by on bicycles. Diaz then left the park. As he left, the defendant and Duarte rode by him. The defendant was wearing a sweater with a hood over his head.

After Diaz left the park, the defendant and Duarte approached Fantauzzi, Flores, and the victim. The defendant and Duarte, with their faces covered, rode up to the men. Duarte, who had a hand gun, cocked and pointed it at the men and said, "Run you all shit." Understanding this command to mean that they were to turn over their belongings, Flores handed the defendant a knife and Fantauzzi handed the defendant a chain and a "Walkman." The victim tossed his wallet on the ground toward the defendant. Duarte then asked the defendant repeatedly, "Le tiru?" which Flores and Fantauzzi understood to be similar to the Spanish phrase, "Should I shoot?" Flores, Fantauzzi, and the victim then ran, and a shot was fired. A bullet hit Fantauzzi in the shoulder at the same time the victim fell to the ground. Flores and Fantauzzi continued running, and ran to Fantauzzi's house.

Boston police officers responded to the park. They found the victim lying face down with a gunshot wound to the back of his head. They found a cigar on the bench on which Diaz, Fantauzzi, Flores, and the victim had been sitting. They also found a wallet and set of keys on the ground in front of the bench. The victim died the following day. Subsequently, the defendant was questioned by police and admitted that he had participated in the armed robbery.

The defendant testified as the sole witness for the defense. His testimony was as follows. On August 23, 1996, he and Duarte went to the park to commit a robbery. The defendant knew Duarte had a loaded gun. Duarte told Flores, Fantauzzi, and the victim to "run your shit." After the men handed over their belongings to the defendant, Duarte said "bounce," which meant "run." When the victims ran, the defendant also ran, but in another direction. The defendant then heard a shot. The defendant testified that he did not know the meaning of the phrase "le tiru." The defendant was impeached with a prior assault and battery conviction and convictions on two counts of possession of a class B controlled substance.

1. The challenged jury instruction issue arose in the following manner. The Commonwealth submitted the case to the jury solely on the theory that, as a joint venturer, the defendant committed felony-murder in the first degree, the predicate felony being one of the armed robberies. In her main charge, the judge instructed fully and correctly on joint venture, and the elements of armed robbery and felony-murder in the first degree. Before instructing the jury on felony-murder in the first degree, the judge advised the jury of the provisions of G. L. c. 265, § 1, which reads as follows:

"Murder committed with deliberately premeditated malice aforethought, or with extreme atrocity or cruelty, or in the commission or attempted commission of a crime punishable with death or imprisonment for life, is murder in the first degree. Murder which does not appear to be in the first degree is murder in the second degree. Petit treason shall be prosecuted and punished as murder. The degree of murder shall be found by the jury."

The judge then clarified for the jury that the only theory of murder before them was felony-murder in the first degree. After defining felony-murder in the first degree, the judge instructed the jury as follows:

"I told you that the statute [G. L. c. 265, § 1] provides that the degree of murder is always up to the jury and I've defined for you what felony-murder is. If you find the Commonwealth has proved all of the elements that I've told you that make up the crime of felony-murder in the first degree, you would find him guilty of that crime and you are, indeed, obligated to find a defendant guilty of the highest degree of crime that is proved beyond a reasonable doubt. But in the end the degree of murder, whether it is first degree or second degree is up to you as the jury.... And you will have with you on the verdict slip [with respect to the murder indictment the] options of finding the defendant not guilty of felony-murder, guilty of felony-murder in the first degree, or guilty of murder in the second degree and that's going to be up to you."

During deliberations, the jury asked, "What conditions have to be met to convict a person of `murder in the second degree?" The judge answered the jury's inquiry by reinstructing on the elements of felony-murder in the first degree and then stating:

"I did explain to you that under our murder statute it specifically provides that the degree of murder, whether it is first degree murder or second degree murder, is up to the jury. So you, as a jury, if you find that there was — that the Commonwealth has proved there was an unlawful killing of [the victim], and that the elements of felony-murder have been proved, in the end, it is up to you whether to find the defendant guilty of first degree murder or second degree murder.

"And so that option of second degree murder is there because the statute vests in the jury the right to determine the degree of murder. But I cannot explain to you any more factors or conditions on that."

The defendant's trial counsel made timely and specific objections to the judge's failure to define the elements of murder in the second degree by instructing the jury on the three prongs of malice that could warrant the return of a verdict of murder in the second degree. The defendant's appellate counsel argues that the language in G. L. c. 265, § 1, stating that it is for the jury to decide the degree of murder, as construed in Commonwealth v. Dickerson, supra,

and Commonwealth v. Brown, supra, required the judge to define the elements of murder in the second degree in the traditional sense, even though no hypothesis in the evidence in this case would support the instruction. The defendant's appellate counsel concludes that a new trial is necessary because the judge's instruction violated both G. L. c. 265, § 1, and the defendant's Federal due process rights. The case thus squarely presents the issue whether the discussion in the Dickerson case, and the holding in the Brown case (based on Dickerson), provide a correct construction of the meaning of the provision in G. L. c. 265, § 1, that "[t]he degree of murder shall be found by the jury," when, as here, the evidence supports only the view that the defendant is guilty or not guilty of felony-murder in the first degree.

(a) In the Dickerson case, the defendant unsuccessfully appealed from his convictions of murder in the first degree, armed robbery, and unlawfully carrying a handgun on his person. Commonwealth v. Dickerson, supra at 784-785. "[T]he only theory advanced by the Commonwealth to support a conviction of murder in the first degree was that of felony murder." Id. at 795. The judge instructed the jury that they had the option of returning one of three verdicts on the murder charge, not guilty, guilty of murder in the first degree, or guilty of murder in the second degree. Id. Chief Justice Hennessey, writing for the court, explained in dictum:

"The judge, in our view, was correct in submitting verdicts of murder in both the first and second degree for the jury's consideration, even though it could be argued that the evidence

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