Commw. v. Elliot, 122899, SJC-07971

• Decision Date: 28 December 1999
• Docket Number: No. SJC-07971,SJC-07971
• Citation: 721 N.E.2d 388
• Parties: (Mass. 1999) COMMONWEALTH v. RONNY ELLIOT
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

721 N.E.2d 388 (Mass. 1999)

COMMONWEALTH v. RONNY ELLIOT.

No. SJC-07971

SUPREME COURT OF THE STATE OF MASSACHUSETTS

Argued October 6, 1999.

December 28, 1999

Suffolk County

The Supreme Judicial Court granted an application for direct appellate review.

Practice, Criminal, Required finding, Severance. Homicide. Joint Enterprise. Evidence, Joint

enterprise, Relevancy and materiality. Malice.

Indictments found and returned in the Superior Court Department on August 8, 1995.

The cases were tried before Robert W. Banks, J.

Esther J. Horwich for the defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Marshall, C.J., Abrams, Lynch, Greaney, & Ireland, JJ.

LYNCH, J.

After being tried in the Superior Court jointly with his codefendant, Michael

McAfee, see Commonwealth v. McAfee, ante (1999), the defendant, Ronny Elliot, was convicted

of murder in the second degree, armed assault with intent to kill, and possession of a firearm. On

appeal, he argues that there was insufficient evidence to support the jury's verdict on the murder

charge and that the judge committed prejudicial error in excluding the testimony of a defense

witness and denying his motions to sever his trial from McAfee's. We granted the

Commonwealth's application for direct appellate review and heard argument along with

McAfee's appeal from his conviction of murder in the first degree. See Commonwealth v.

McAfee, supra at (1999). We affirm the defendant's convictions.

1. Facts. The facts as the jury could have found them are recited in Commonwealth v.

McAfee, supra at .

2. Sufficiency of the evidence. The defendant contends that the judge erred in denying his

motion for a required finding of not guilty on the murder charge.¹ In reviewing such a claim of

error, we inquire whether the evidence, viewed in the light most favorable to the Commonwealth,

was sufficient to satisfy any rational trier of fact that the essential elements of the crime had been

proved beyond a reasonable doubt. See Commonwealth v. Coonan, 428 Mass. 823, 828 (1999),

and cases cited; Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). We conclude that there

was no error.

The defendant argues that the Commonwealth failed to prove beyond a reasonable doubt that he

was guilty of murder as a joint venturer, because there was insufficient evidence that he had the

requisite state of mind for murder or that he acted consciously with McAfee to carry out the

offense. We disagree. "In order to convict a defendant as a joint venturer, the Commonwealth

must establish that the defendant 'was (1) present at the scene of the crime, (2) with knowledge

that another intends to commit the crime or with intent to commit a crime, and (3) by agreement .

. . willing and available to help the other if necessary.'" Commonwealth v. Pucillo, 427 Mass.

108, 112 (1998), quoting Commonwealth v. Bianco, 388 Mass. 358, 366, S.C., 390 Mass. 254

(1983). Additionally, the Commonwealth must prove that the defendant shared with the principal

the mental state required for murder, namely, malice aforethought. See Commonwealth v.

Pucillo, supra. Malice includes intent to kill or to cause grievous bodily injury. Alternatively,

malice may be inferred if, in circumstances known to the defendant, "a reasonably prudent

person would have known that according to common experience there was a plain and strong

likelihood that death would follow the contemplated act." Id., quoting Commonwealth v. Grey,

399 Mass. 469, 470 n.1 (1987).

The jury reasonably could have found that the defendant shared McAfee's malice and intent to

shoot the victim.² "The jury may infer the requisite mental state from the defendant's

knowledge of the circumstances and subsequent participation in the offense." Commonwealth v.

Pucillo, supra, quoting Commonwealth v. Soares, 377 Mass. 461, 470, cert. denied, 444 U.S. 881

(1979). Moreover, inferences drawn by the jury regarding the defendant's mental state "need only

be reasonable and possible and need not be necessary or inescapable." Commonwealth v. Pucillo,

supra at 113, quoting Commonwealth v. Casale, 381 Mass. 167, 173 (1980). Here, there was

evidence of a confrontation between the codefendants and Sanders earlier in the day and of a

subsequent pursuit of the codefendants by Sanders and the victim. The defendant, despite having

reached the safety of his house, chose to come back out with a loaded rifle, thereby introducing a

deadly weapon into a hostile situation. After emerging with the rifle and standing on the porch,

he voluntarily stepped down to the sidewalk and joined McAfee behind an automobile,

approximately ten to fifteen feet from the victim, where he deliberately raised and pointed the

rifle at the victim and Sanders. Although the defendant did not himself shoot the victim,

nevertheless the evidence, viewed in the light most favorable to the Commonwealth, established

that the defendant voluntarily handed the rifle to McAfee in a "pass and grab" motion after

McAfee had twice loudly commanded him to "lace" the victim and Sanders and had thereby

made plain his own murderous intent. Moreover, the defendant fled the scene after the shooting

and remained at large for eight weeks. A rational jury could infer from this evidence that the

defendant intended, or knew that McAfee intended, to injure the victim, and that he reasonably

should have known that his act of passing the rifle to McAfee created a plain and strong

likelihood that the victim's death would result. See, e.g., Commonwealth v. Pucillo, supra at

112-113 (defendant's prior knowledge of intended attack on victim supports rational inference of

malice under joint venture theory); Commonwealth v. Brooks, 422 Mass. 574, 577 (1996)

(sufficient evidence for joint venture murder conviction where jury could have found that

defendant carried firearm to scene of shooting, approached victims, and fled scene with others);

Commonwealth v. Chipman, 418 Mass. 262, 268 (1994) (defendant guilty of murder as joint

venturer where jury could infer that he provided firearm to principal, knew or should have known

that principal was shooting at passing traffic, and was present at scene when fatal shot was fired);

Commonwealth v. Longo, 402 Mass. 482, 487-488 (1988) (jury could infer joint venturers'

malice where principal had stated his intent to harm victim, and they knew that principal was

armed). Moreover, this evidence also supports a rational inference that the defendant willingly

assisted McAfee in committing the offense, showing that "at the climactic moment the parties

consciously acted together in carrying out the criminal endeavor." Commonwealth v. Sexton, 425

Mass. 146, 152 (1997), quoting Commonwealth v. Young, 35 Mass. App. Ct. 427, 435

(1993).³

Nor are we persuaded by the defendant's argument that the evidence warranted at most a

manslaughter verdict because the Commonwealth failed to prove beyond a reasonable doubt that

he did not act in the heat of passion on reasonable provocation. As we reasoned in

Commonwealth v. McAfee, supra at , even if we assume that the evidence sufficed to raise

provocation as an issue,⁴ a reasonable jury could have found that the Commonwealth had met

its burden of proof on this issue. Specifically, the jury could have found that the victim and

Sanders, although they chased the defendant and McAfee to Catawba Street, were unarmed at the

scene of the shooting, challenged the defendant and McAfee at most to a fist fight, and never

actually hit or even attempted to hit the defendant. Moreover, the defendant, despite having

reached and entered his house, opted not to remain there or to make a telephone call to the police

for assistance, but instead retrieved a loaded rifle and returned outside to confront the victim and

Sanders. The jury could reasonably have found that these circumstances would not have

overcome an ordinary person's capacity for reflection or restraint and provoked him to kill, and

that the defendant did not actually experience this impassioned state of mind. See

Commonwealth v. Curtis, 417 Mass. 619, 629 (1994). See also Commonwealth v. Masello, 428

Mass. 446, 449-450 (1998) (evidence insufficient to require provocation instruction where victim

argued and struggled with defendant and even threw punches at him; sufficient time for

defendant to have "cooled off" before he shot victim); Commonwealth v. Zukoski, 370 Mass. 23,

28-29 (1976) (no provocation instruction warranted where victim swore and threw glass of beer

at defendant; threat from thrown glass had passed before defendant struck victim). Moreover, a

rational jury could also have found that the Commonwealth had adequately disproved the use of

excessive force in self-defense, inasmuch as the evidence sufficed to establish that the defendant,

having reached the safety of his house before he reemerged with the rifle, had no reasonable

basis to believe that he was in imminent danger of suffering death or serious bodily harm from

the victim and had not "availed all proper means to avoid physical combat." Commonwealth v.

Niemic, 427 Mass. 718, 722 (1998), quoting Commonwealth v. Kendrick, 351 Mass. 203, 212

(1966).

3. Exclusion of testimony. The defendant claims that the judge committed reversible error by

refusing to allow him to call a witness, Alasandrea Pomales, who, he claimed, had made

statements to his trial counsel and private investigator shortly after the shooting that lent support

to his self-defense and provocation theories, but who had been intimidated by Boston police

officers and by her father to recant these statements at trial. Although the witness, on voir dire,

denied having made these statements and claimed to know nothing relevant to issues at trial, the

defendant claims that nevertheless he ought to have been permitted to call and to impeach her by

means of her prior inconsistent...