Commonwealth v. Pike,

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: GREANEY, J.
• Citation: 431 Mass. 212,726 NE 2d 940
• Decision Date: 13 April 2000
• Parties: COMMONWEALTH v. JULIE A. PIKE.

431 Mass. 212
726 NE 2d 940

COMMONWEALTH
v.
JULIE A. PIKE

Supreme Judicial Court of Massachusetts, Franklin.

February 10, 2000.

April 13, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, IRELAND, SPINA, & COWIN, JJ.

James L. Sultan (Catherine J. Hinton with him) for the defendant.

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Judith Ellen Pietras, Assistant District Attorney, for the Commonwealth

GREANEY, J.

The defendant, Julie A. Pike, was charged with murder in the first degree. A jury in the Superior Court considered that charge and convicted her of murder in the second degree.¹ The defendant's boy friend, Barry Loring, had also been indicted for murder in the first degree. He testified against her at her trial under an agreement with the Commonwealth that allowed him to enter a plea of guilty to murder in the second degree. Represented by new counsel on appeal, the defendant argues that the trial judge erred in (1) submitting the case to the jury on the theory of joint venture; and (2) instructing the jury on the elements of second degree felony-murder and on malice. The defendant also argues that the judge who decided her motion for a new trial² improperly denied the motion. We granted the defendant's application for direct appellate review. We discern no error in any of the matters raised by the defendant. Accordingly, we affirm the defendant's conviction and the denial of her motion for a new trial.

Based on the evidence most favorable to the Commonwealth, and the reasonable inferences that could be drawn therefrom, the jury could have found the following facts. On September 23, 1994, the defendant and Loring broke into the Greenfield home of Don W. Maynard (Maynard), having formed a plan to wait until Maynard returned home, kill him, and steal his automobile. While waiting inside Maynard's house, the defendant and Loring changed into Maynard's clothes, used the clothes dryer in the basement to dry their own wet clothes and sneakers, made sandwiches, and ate them sitting on the kitchen floor. Having discovered two firearms on a rack in the dining room, the defendant and Loring searched the house for ammunition, which they found in a bedroom closet. Loring then loaded one firearm, a .22 caliber rifle, while the defendant lay

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on Maynard's bed. The two planned that, on Maynard's return, Loring would use this rifle to kill him. When Maynard returned home a short time after noon, however, Loring was downstairs, checking their sneakers that were still in the dryer, and the rifle was in the bedroom with the defendant. Maynard entered the kitchen and was aware that someone was in the house. Loring, coming up the basement stairs, grabbed Maynard by the left arm and swung him around. At the same time, the defendant, whom Loring had not seen enter the kitchen, killed Maynard with a shot to the back of his head, fired at close range

Together, the defendant and Loring cleaned away Maynard's blood from the scene. After removing Maynard's wallet from his pants pocket, they wrapped his body in plastic and in a green bedspread, fitted it into a plastic trash barrel, and loaded the barrel into the trunk of Maynard's automobile. They then filled trash bags with cleaning supplies and towels they had used to clean, and loaded these trash bags, with a mop and a bucket, into the vehicle's trunk. At one point, the telephone rang. The defendant answered it and convincingly told the caller that Maynard was away on a personal emergency. After taking other items, a guitar and two cameras, from the house, the defendant and Loring drove Maynard's automobile to a wooded area in Vermont, where they threw the items from the trunk, including Maynard's body, into a ravine.

The two drove to a laundromat to wash their clothes, where the defendant, who was seven months' pregnant at the time, chatted with two people about the baby. They then drove to a motel in Brattleboro, Vermont, where they spent the night, before driving to Keene, New Hampshire, the following morning. There, the defendant entered a pawn shop, where she sold the guitar and one camera, and a camera store, where she sold the other camera stolen from Maynard's home. Because they needed more money, the defendant made a telephone call to a friend, who wired her $200. The defendant and Loring then took a bus to Boston, where they used Maynard's credit card to purchase airline tickets to Los Angeles. The two were arrested several weeks later, in Los Angeles, where they were living in an empty movie theater.

1. The defendant admits that Loring's testimony that she shot and killed the victim warranted submission of the case to the jury on the basis that she could be convicted as a principal. She maintains, however, that there was no evidence presented by the

431 Mass. 215

Commonwealth tending to prove that Loring was the shooter. As a result, she argues that she could have been convicted as a joint venturer only by speculation on the part of the jury that Loring had shot the victim while she stood by ready to assist him or actually assisting him. Thus, she concludes that, in the absence of sufficient evidence of joint venture, the jury should not have been allowed to consider that theory, and, because the jury did not differentiate in their verdict form between principal and joint venture liability, she is entitled to a new trial. See Commonwealth v. Green, 420 Mass. 771, 781 (1995) (if jury may have relied on theory of liability inadequately supported by evidence, defendant entitled to new trial). We reject the argument

The evidence most favorable to the Commonwealth supported a finding by the jury beyond a reasonable doubt that the defendant and Loring were involved in a joint venture during which the victim was killed. It was beyond dispute that either the defendant or Loring, while participating in the joint venture, fired the fatal shot. Direct evidence was not necessary to show that Loring may have been the shooter. See Commonwealth v. Chipman, 418 Mass. 262, 268 (1994), and cases cited. The evidence was such that the jury could have inferred that Loring "lied to protect himself in testifying that [the defendant shot the victim] and then reasonably believed his other testimony." Commonwealth v. Daughtry, 417 Mass. 136, 140 n.1 (1994). See Commonwealth v. DeCicco, 44 Mass. App. Ct. 111, 116 (1998). That being the case, it was "needless[] to decide who was a principal and who a helper — for each [could on the evidence be found by the jury] guilty whether acting in one or the other role or successively in both." Commonwealth v. Sanchez, 40 Mass. App. Ct. 411, 419 (1996). See Commonwealth v. Frias, 47 Mass. App. Ct. 293, 298 (1999), and cases cited. The judge properly submitted the case to the jury for them to consider whether the defendant was guilty of murder as a joint venturer, a ruling apparently acknowledged as correct at the time by the defendant's experienced trial counsel when no specific argument was made on the insufficiency of the Commonwealth's evidence as to the defendant's possible liability as a participant in a joint criminal enterprise.

2. The defendant's arguments concerning the jury instructions lack merit.

(a) The judge's failure to instruct the jury, in connection with

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the felony-murder theory, that the killing must be found to be a natural and probable consequence of the defendant's acts, was inconsequential. No objection was made by the defendant's trial counsel. The instruction is unnecessary unless the evidence raises an issue requiring an explanation of the point. See Model Jury Instructions on Homicide of the Supreme Judicial Court 67-68 n.8 (1999). The evidence warranted the finding that the victim's death was proximately caused by the defendant's acts during the commission of the predicate felonies, and the jury were properly instructed that, before they could convict of murder, they must conclude that "the action of [the defendant] was the proximate cause of [the victim's] death ... a cause which, in natural continuous sequence, produces a death, and without which the death would not have occurred." No more was necessary.

We also reject the defendant's somewhat perfunctory argument that the felony-murder rule is inapplicable to the underlying predicate felonies in this case (breaking and entering in the daytime with intent to commit a felony and larceny of a motor vehicle). The jury were warranted in finding that both felonies were committed with a conscious disregard of the risk to human life and were independent of the murder. We reject the suggestion that a second degree felony-murder conviction cannot be based on property crimes such as those committed here, so long as the evidence supports a finding that the crimes were committed with a conscious disregard of the risk to the victim's life. See Commonwealth v. Chase, 42 Mass. App. Ct. 749, 751-753 (1997).

(b) In his malice instruction, the judge used language similar to the "frame of mind" language that was disapproved in Commonwealth v. Eagles, 419 Mass. 825, 836 (1995). No objection was made by the defendant's trial counsel. The instructions on malice correctly defined all three prongs of malice and were correct in all other respects. The nature of the killing, a shot from a .22 caliber rifle fired at contact, or near contact, with the back of the victim's head, displayed malice in the plainest sense. The "frame of mind" language could not have affected the jury's determination of malice.

3. We now come to the principal issue which concerns the defendant's motion for a new trial. The defendant maintained at trial that she was not inside Maynard's home at the time when he was killed. She testified that, following Loring's instructions,

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she had waited at a bridge until he returned, and only then did she enter the house, to find that Maynard had been shot and killed. According to the defendant, her participation in the killing was limited to...