Commonwealth v. Scott

• Decision Date: 24 September 2015
• Docket Number: SJC–11097.
• Citation: 472 Mass. 815,37 N.E.3d 1054
• Parties: COMMONWEALTH v. Kenston SCOTT.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

472 Mass. 815

37 N.E.3d 1054

COMMONWEALTH

v.Kenston SCOTT.

SJC–11097.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued March 2, 2015.

Decided Sept. 24, 2015.

Chauncey B. Wood, Boston, for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

DUFFLY

, J.

The only issue that is properly before us in this interlocutory appeal, as we shall explain below, is whether the evidence at the defendant's trial was sufficient to warrant a finding of guilty of murder in the first degree based on a theory of felony-murder, with armed home invasion as the predicate felony. Specifically, the question is whether the Commonwealth presented evidence that would warrant a finding that the defendant committed two separate assaults, one to support a conviction of armed home invasion and a separate and distinct assault that constituted the homicide. In the absence of proof of two independent assaults, the evidence would not support a conviction of felony-murder based on an armed home invasion. We hold that the Commonwealth presented sufficient evidence to warrant a finding of two assaults.

Procedural history. The defendant was tried and convicted in the Superior Court, in 2010, on charges (one count each) of murder in the first degree, armed home invasion, and unlicensed carrying of a firearm.¹ The murder conviction was based on a theory of felony-murder, with armed home invasion as the predicate felony.² The defendant was sentenced to the mandatory term of life in prison without the possibility of parole for the murder, and a concurrent term of from four and one-half to five years for the firearm offense. The armed home invasion indictment was dismissed as duplicative.³

The defendant's appeal from his convictions was entered directly in this court in November, 2011, in accordance with G.L. c. 278, § 33E

. In June, 2012, while his appeal was pending, he filed in this court a “motion for postconviction relief” that we remanded to the Superior Court for consideration. His motion was focused entirely on the murder conviction and identified three bases for his claim that he was entitled to relief from that conviction: first, that the evidence was insufficient to support the conviction, specifically, that the conviction “was not supported by an independent homicidal act”; second, that the jury should have been instructed that, in order to find felony-murder, they were required “to find beyond a reasonable doubt that the act establishing the predicate felony was independent from the homicidal

act”; and, third, that his trial counsel was ineffective because counsel's “ignorance of the merger doctrine's relevance deprived him of an available and substantial ground of defense.” He accordingly sought a finding of not guilty on the felony-murder conviction or, in the alternative, a new trial on the murder charge.⁴

After an evidentiary hearing on the remanded motion, the trial judge concluded that the evidence at trial was sufficient to support a finding that there had been two separate and distinct assaults, and therefore that the felony-murder conviction was not legally deficient under the so-called merger doctrine. The judge agreed with the defendant, however, that the jury had not been instructed adequately on the law of felony-murder, specifically, that to convict the defendant of felony-murder based on the armed home invasion, they were required to find two separate and distinct assaults; in other words, they were not told that the act that caused the victim's death needed to be separate and distinct from the act that constituted the assault for purposes of the armed home invasion. The judge therefore granted a new trial on the basis of the absence of an appropriate jury instruction.

Despite having been granted a new trial, the defendant appeals from so much of the judge's ruling as determined that the evidence at the first trial was sufficient to support a finding of two separate and distinct assaults, and, consequently, a felony-murder conviction. He presses his claim that he is entitled to a finding of not guilty on the felony-murder charge. The Commonwealth has not appealed from the portion of the order that granted a new trial.

In his brief on appeal, however, the defendant gives relatively short shrift to the single issue that brings him back before the court at this interlocutory juncture—his challenge to the sufficiency of the evidence for his murder conviction. Instead, he devotes the bulk of his brief to other issues. He focuses primarily and at length on a pretrial order denying his motion to suppress statements he made to the police. He also presses a request he made for an instruction concerning identification that the judge declined to give at his first trial. Finally, he challenges an instruction that the judge gave on accomplice liability. Recognizing that

none of these additional issues is properly before the court at this interlocutory juncture, he nevertheless argues that we should address them now “in the interest of judicial economy.”

Discussion. We decline the defendant's invitation to consider issues other than the sufficiency of the evidence at the first trial to support his murder conviction. As to that limited issue, the defendant has a right under Massachusetts law to appellate review before he is retried because, if the evidence at the first trial was insufficient to support the conviction, a retrial would be barred by principles of double jeopardy. See Neverson v. Commonwealth, 406 Mass. 174, 175–176, 546 N.E.2d 876 (1989)

, and cases cited. See also Choy v. Commonwealth, 456 Mass. 146, 149–150, 927 N.E.2d 970, cert. denied, 562 U.S. 986, 131 S.Ct. 425, 178 L.Ed.2d 330 (2010). Typically this type of issue arises when the first trial ends in a mistrial, but we see no reason why the same principles should not also apply here, where the defendant has been convicted and, while his appeal is pending, he has been granted a new trial.⁵

That said, interlocutory review between trials to determine the sufficiency of the evidence, in order to ensure that a retrial would not violate double jeopardy principles, does not encompass all other interlocutory issues that the defendant raises. The right to interlocutory review in these circumstances exists strictly as a safeguard against double jeopardy. The other issues the defendant raises do not implicate double jeopardy principles. Nor is there any “judicial efficiency” to be gained by encumbering the limited interlocutory review afforded in these circumstances for double jeopardy purposes with multiple other issues that may or may not arise in the same way at the retrial and that, in any event, can be adequately dealt with, if necessary, in the course of the ordinary appellate review that will follow if the defendant is convicted

again.^{6 , 7}

We now turn to the merits of the sufficiency of the evidence issue. We begin with the elemental principle that, in felony-murder prosecutions, “the conduct which constitutes the felony must be ‘separate from the acts of personal violence which constitute a necessary part of the homicide itself.’ ” Commonwealth v. Gunter, 427 Mass. 259, 272, 692 N.E.2d 515 (1998)

, S.C., 459 Mass. 480, 945 N.E.2d 386, cert. denied, ––– U.S. ––––, 132 S.Ct. 218, 181 L.Ed.2d 119 (2011), quoting Commonwealth v. Quigley, 391 Mass. 461, 466, 462 N.E.2d 92 (1984), cert. denied, 471 U.S. 1115, 105 S.Ct. 2356, 86 L.Ed.2d 258 (1985). See Model Jury Instructions on Homicide 54 (2013) (“The act of violence that is an element of the underlying felony may not be the same act that caused the victim's death”). This requirement ensures that not every assault that results in a death will serve as a basis for murder in the first degree on the theory of felony-murder. Commonwealth v. Kilburn, 438 Mass. 356, 359–360, 780 N.E.2d 1237 (2003). Gunter, supra. If an assault that is an element of an underlying felony is not separate and distinct from the assault that results in the death, then the assault is said to merge with the killing, in which case the underlying felony cannot serve as a predicate felony for purposes of the felony-murder doctrine. Model Jury Instructions on Homicide, supra at 53 n. 121 (“Under the merger doctrine, if the only felony committed was the assault upon the victim which resulted in the victim's death, the assault merges with the killing and cannot be relied on by the Commonwealth to support felony-murder”).⁸

, ⁹

“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 [and] with reference to specific facts.’ ” Kilburn, 438 Mass. at 359, 780 N.E.2d 1237

, quoting Gunter, 427 Mass. at 275 n. 15, 692 N.E.2d 515. See Commonwealth v. Bell, 460 Mass. 294, 300, 951 N.E.2d 35 (2011). We thus turn to the specific facts of this case, focusing mainly on the evidence of events immediately before and during the home invasion and shooting. Because we are examining the legal sufficiency of the evidence, we apply the well-settled and familiar Latimore standard; that is, viewing the evidence in the light most favorable to the Commonwealth, we ask whether the evidence and the inferences that reasonably could be drawn from it were “of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of [guilt] beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979), and cases cited. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (stating the standard as “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” [emphasis in original] ), cited with approval in Latimore, sup...