Commonwealth v. Santos

• Decision Date: 06 February 2003
• Citation: 797 NE 2d 1191,440 Mass. 281
• Parties: COMMONWEALTH vs. NEICO SANTOS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

440 Mass. 281

797 NE 2d 1191

COMMONWEALTH vs. NEICO SANTOS.

Supreme Judicial Court of Massachusetts, Suffolk.

February 6, 2003.

October 31, 2003.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Jon R. Maddox for the defendant

Kajal K. Chattopadhyay, Assistant District Attorney, for the Commonwealth.

SOSMAN, J.

A jury convicted the defendant of armed robbery, assault by means of a dangerous weapon, and threatening to commit a crime.¹ In an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed the convictions. Commonwealth v. Santos, 54 Mass. App. Ct. 1116 (2002). We granted the defendant's application for further appellate review. We now affirm the conviction of armed robbery and vacate the conviction of assault by means of a dangerous weapon.²

1. Facts. Taking the evidence in the light most favorable to the Commonwealth, the facts are as follows. On September 23, 1997, at approximately 2:30 A.M., Brenda Joyce Cole was asleep in the first-floor apartment that she shared with her son, James Glover, and her niece, Laura Walker, when she was awakened by the sound of Glover talking with someone outside the apartment. She observed Glover enter the apartment and attempt to close the door behind him. Before he could shut the door, the defendant pushed it open and entered the apartment accompanied by three other men. Cole recognized the defendant (whom she had known for years) and one of the other perpetrators. The other two were unknown to her. She saw the four men pursue Glover into his bedroom, heard them arguing with Glover, and went to Glover's room to see what was happening. There, she saw one of the men (not the defendant) pointing a gun at Glover's head. Cole asked them what they were doing, to which one of the perpetrators replied that Glover owed them $200. Another one of the perpetrators, realizing that Cole recognized him, left the apartment at that juncture. Cole told the defendant and the remaining two assailants that she would get the money for them, and left the room intending to telephone police.

One of the assailants saw Cole heading toward the telephone and asked what she was doing. Cole responded that she was "calling the cops." The man approached Cole with a switchblade knife, telling her to hang up the telephone. She complied, whereupon the man proceeded to cut the telephone cord. Cole then went to her bedroom and retrieved $200 in cash. She gave the money to one of the assailants and asked them all to leave. Ignoring her request, the men went to Cole's bedroom, stating that Glover owed them an additional $300. Cole retrieved an envelope containing $1,300 in cash, and handed over another $300 from that envelope. At that point, the defendant "snatched" the envelope from Cole's hand and handed it to one of his cohorts. The defendant told him "not to take it all," but that instruction was immediately countermanded by one of the other men, who announced that they would "take it all."

The men then ordered Cole to get on her bed, where they tied her hands behind her back with an extension cord. They also brought Glover into Cole's bedroom, tied him up, and placed him on the floor. As she lay on the bed, Cole observed the assailants, including the defendant, taking turns pointing the gun at Glover's head. One of the men asked if anyone else was in the apartment. Cole replied that her niece, Laura Walker, was there. The assailants then went into Walker's room and, pointing a gun at her, forced her to look for money in various places in the apartment. At one point, the men brought Walker to Cole's bedroom, where she saw Glover tied up. While pointing the gun at Glover's head, they said to Walker, "You don't want nothing to happen to your cousin, so find the money." Walker looked around the apartment, but was unable to find any more money. The assailants ultimately brought Walker back to Cole's bedroom and told her to lie on the bed, which she did. Cole looked over toward Glover, and saw one of the assailants still pointing the gun at Glover's head as if he were preparing to pull the trigger. The assailant told Cole to turn her head, and someone threw something over Cole's face so she could no longer see. She heard the defendant tell Glover "that if he say anything that he'll get him on the street." Another of the assailants announced, "If you call the cops, we'll come back and kill you." The three men then left the apartment. Afterward, it was discovered that additional money from Walker's bedroom, three cameras, three pagers, and some jewelry were also missing, inferably taken by the defendant and his two companions.

2. Discussion. a. Specific unanimity instruction. The defendant argues that the trial judge committed reversible error by refusing the defendant's requests for specific unanimity instructions with respect to the indictment charging armed robbery. In particular, the defendant requested an instruction requiring that the jury be unanimous as to whether he was liable as a principal or a joint venturer, and that they be unanimous as to whether the "assault" element of armed robbery (see G. L. c. 265, § 17) had been established by proof that he had used force on the victim or by proof that he had placed the victim in fear.³ The judge declined to give either of the requested specific unanimity instructions, and the defendant objected. The verdict slip for the armed robbery indictment was in the form of a general verdict, and thus did not specify whether the conviction was premised on principal liability or joint venture liability or which form of "assault" had been used to perpetrate the armed robbery.

The judge committed no error. "It is beyond dispute that the jury verdict in a criminal trial . . . must be unanimous." Commonwealth v. Berry, 420 Mass. 95, 111 (1995), quoting Commonwealth v. Hebert, 379 Mass. 752, 754 (1980). We have recognized that, in some circumstances, the general instruction that the verdict must be unanimous will not suffice to ensure the requisite unanimity. None of those circumstances is present in this case.

One circumstance calling for a specific unanimity instruction is when, on a single charged offense, the prosecutor presents evidence of separate, discrete incidents, any one of which would suffice by itself to make out the crime charged. There, in order to find the defendant guilty of the charged offense, the jury must all agree as to at least one, specific incident. See Commonwealth v. Conefrey, 420 Mass. 508, 513-514 (1995) (where defendant was charged in single indictment alleging indecent assault and battery on child occurring "on divers dates and times," and child complainant testified to eight distinct episodes of sexual contact, it was error to refuse defendant's request for specific unanimity instruction). Unless the jury all agree that there is proof beyond a reasonable doubt as to one of the specific criminal acts alleged, there is not unanimous agreement that he has committed any crime. Absent a specific unanimity instruction, the jury might mistakenly believe that they could convict the defendant even if they disagreed as to which of the alleged criminal acts he had committed. Thus, if the evidence raises the possibility of this form of juror confusion, and the defendant requests a specific unanimity instruction, the instruction must be given. Id. at 514. See Commonwealth v. Comtois, 399 Mass. 668, 676-677 & n.11 (1987); Commonwealth v. Lemar, 22 Mass. App. Ct. 170, 172 (1986).

However, if the offense is alleged to have been committed as part of a single episode, there is no such risk of juror confusion and no specific unanimity instruction need be given. The jury must be unanimous that the crime was committed on the occasion alleged, but they need not agree as to every detail concerning how the crime was committed. See Commonwealth v. Cyr, 433 Mass. 617, 620, 623 (2001) (judge properly declined to give specific unanimity instruction with respect to whether defendant murdered victim by stabbing her or by setting her on fire, despite defendant's claim that his mental state was different at time of each event). "When a single count is charged and where the spatial and temporal separations between acts are short, that is, where the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a specific unanimity instruction is not required." Commonwealth v. Thatch, 39 Mass. App. Ct. 904, 905 (1995) (judge not required to give specific unanimity instruction where rape was alleged to have occurred as part of single episode, despite victim's testimony as to multiple acts of penetration). The same is true if the prosecution presents evidence of a single criminal scheme or plan carried out consistently over time. In the absence of some distinguishing differences between the successive events, there is no reason to fear that the jury will pick and choose among the alleged incidents and convict the defendant while disagreeing as to which of them were committed. See Commonwealth v. Sanchez, 423 Mass. 591, 599-600 (1996) (where child victim described repeated identical pattern of sexual assaults, but did not describe particular incidents, specific unanimity instruction not required). See also Commonwealth v. Pimental, 54 Mass. App. Ct. 325, 327-328 (2002); Commonwealth v. Lewis, 48 Mass. App. Ct. 343, 350-352 (1999).

The present case involves a single criminal episode, with multiple applications of force and threats of force inflicted on the occupants of the apartment during that episode, culminating in the taking of Cole's money and other property. There was no requirement that the jury agree as to precisely which threat, or which application of force, caused the victim to part with her money, and it would thus be pointless to require them to agree that it was one or more of the threats as opposed to one or more of the applications of force that...