Commonwealth v. Stokes, SJC–10681.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.
• Citation: 2011 WL 3211202,951 N.E.2d 35,460 Mass. 311
• Parties: COMMONWEALTHv.Corie STOKES.
• Docket Number: SJC–10681.
• Decision Date: 01 August 2011

460 Mass. 311
2011 WL 3211202,951 N.E.2d 35

COMMONWEALTH
v.
Corie STOKES.

SJC–10681.

Supreme Judicial Court of Massachusetts, Bristol.

Argued April 4, 2011.Decided Aug. 1, 2011.

Daniel Klubock, Fitchburg, for the defendant.David J. Gold, Assistant District Attorney, for the Commonwealth.Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.BOTSFORD, J.

[2011 WL 1 , 460 Mass. 311] The defendant, Corie Stokes, was convicted of felony-murder in the first degree based on the predicate felony of attempted armed robbery, and related crimes. The charges concerned the 1999 shooting death of Cecil Smith inside the home of Smith's girl friend, Crystal Rego. This court affirmed his convictions. Commonwealth v. Stokes, 440 Mass. 741, 802 N.E.2d 88 (2004) ( Stokes ). Before us is the defendant's appeal from the denial of [460 Mass. 312] his postappeal motion for a new trial. He contends that the jury should have been instructed that an alternative underlying felony for the felony-murder charge was armed home invasion committed with a firearm, a crime that at the relevant time did not carry a life sentence and therefore could have served as the predicate for felony-murder in the second degree. We affirm the denial of the defendant's motion for a new trial.

1. Background. As recited in more detail in Stokes, on the evening of August 9, 1999, Rego opened the door of her apartment in Fall River in response to a knock; the defendant and another man stood at the threshold, “waving guns” and pointing them at Rego.¹ Id. at 742–743, 748, 802 N.E.2d 88. Within “a matter of seconds,” a shot was fired into the apartment and killed Smith. Id. at 742–743, 746 n. 4, 802 N.E.2d 88. Shortly after the murder, Dana Mazyck overheard the defendant and two other men say they had gone to rob someone, had thought the victim had a gun, and so had shot him. ² Id. at 743, 802 N.E.2d 88.

Following these events, the defendant and his codefendant, Michael Holloway, were charged with murder in the first degree, armed home invasion committed with a firearm (armed home invasion) against Smith,³ unlawful possession of a firearm, and conspiracy to commit armed robbery. Id. at 742 & nn. 1, 2, 746–747, 802 N.E.2d 88. In connection with the murder charge, the trial judge instructed the jury on theories of deliberate premeditation and felony-murder in the first degree with an attempted armed robbery[460 Mass. 313] as the predicate felony. Id. at 749, 802 N.E.2d 88. The judge also instructed on murder in the second degree but did not include an instruction on felony-murder in the second degree. The jury found the defendant guilty of murder in the first degree on the theory of felony-murder only, not deliberate premeditation. The jury also returned guilty verdicts on the charges of armed home invasion, conspiracy to commit armed robbery, and unlawful possession of a firearm. Id. at 742 & n. 1, 802 N.E.2d 88.

In 2008, the defendant filed a motion for a new trial.⁴ In it he argued for the first time that the judge erred in failing to give an instruction on felony-murder in the second degree with armed home invasion, G.L. c. 265, § 18C, as amended by St.1998, c. 180, § 57 ( § 18C), as the predicate felony.⁵ The judge denied the motion in relevant part.⁶ The judge concluded that the armed home invasion indictment, expressly naming Smith as the victim, see note 3, supra, could not be the predicate felony underlying the felony-murder of Smith because it effectively merged with the homicide. See [460 Mass. 314] Commonwealth v. Gunter, 427 Mass. 259, 270–274, 692 N.E.2d 515 (1998). A single justice allowed the defendant's gatekeeper petition seeking to appeal from the denial of the motion for a new trial.⁷ See G.L. c. 278, § 33E.

[2011 WL 2] 2. Instruction on felony-murder in the second degree. In this appeal, the defendant first argues that the charged offense of armed home invasion, as set out in the indictment naming Smith as the victim, could have served as a predicate felony for felony-murder in the second degree, despite potential conflicts with the merger doctrine.⁸ However, his principal argument focuses on a different theory: that an uncharged armed home invasion involving threatened use of force against Rego—the waving and pointing of a gun at her—could have served as the predicate felony for a charge of felony-murder in the second degree. Therefore, the defendant contends, an instruction on felony-murder in the second degree should have been given.

Felony-murder in the second degree consists of a homicide [460 Mass. 315] committed during the commission or attempted commission of a felony with a maximum sentence of less than life imprisonment, provided that the predicate felony is either inherently dangerous or committed in conscious disregard of risk to human life. See Commonwealth v. Burton, 450 Mass. 55, 57, 876 N.E.2d 411 (2007) ( Burton ). For a felony-murder instruction to be proper, evidence must support the inference that the victim's death was “a natural and probable consequence” of the predicate felony. See Commonwealth v. Cruz, 430 Mass. 182, 185, 714 N.E.2d 813 (1999). The defendant need not be indicted separately on the predicate felony. See Commonwealth v. Matchett, 386 Mass. 492, 497–498 & n. 7, 436 N.E.2d 400 (1982).

We accept the defendant's point that the trial evidence was sufficient for the jury to consider whether Smith was killed during the commission of an armed home invasion against Rego.⁹ However, it is also the case that the only indictment charging the defendant with armed home invasion specifically named Smith as the victim; there was no separate indictment for armed home invasion naming Rego as the victim. It is true, as previously noted, that the felony on which a charge of felony-murder is...