Commonwealth v. Epshod Jeune

• Court: Massachusetts Supreme Judicial Court
• Decided: October 18, 2024
• Docket: SJC-13447
• Status: Published

Opinion

SUPREME JUDICIAL COURT

COMMONWEALTH vs. EPSHOD JEUNE

Docket:	SJC-13447
Dates:	April 5, 2024 – October 18, 2024
Present:	Budd, C.J., Gaziano, Kafker, & Wendlandt, JJ.
County:	Middlesex
Keywords:	Homicide. Felony-Murder Rule. Robbery. Home Invasion. Armed Assault in a Dwelling. Firearms. Practice, Criminal, Jury and jurors, Instructions to jury, Capital case. Evidence, Identification, Accident. Jury and Jurors. Malice. Identification. License. Constitutional Law, Right to bear arms.

      Indictments found and returned in the Superior Court Department on August 15, 2015.

      The cases were tried before Bruce R. Henry, J.

      Steven J. Rappaport for the defendant.

      Christa Elliott, Assistant District Attorney, for the Commonwealth.

      GAZIANO, J.  On the night of July 1, 2015, the defendant, Epshod Jeune, and his accomplice, Derrell Fisher, robbed or attempted to rob three women working as escorts at three separate hotels.  The defendant contacted each woman by calling a telephone number advertised on a website (Backpage).  The first woman denied them entry to her room.  The second woman was robbed at gunpoint.  The third woman was shot and killed.  After the defendant and Fisher were tried jointly, a jury convicted both of them of murder in the first degree based on a theory of felony-murder, among other charges.

      In this direct appeal, the defendant contends that he is entitled to a new trial for the following reasons:  the judge erred in dismissing two Black jurors for cause; a police officer improperly identified the defendant in a video recording at trial; the judge's instructions to the jury on third prong malice were erroneous; and the judge failed to provide a requested accident instruction.  The defendant also asserts that his conviction of unlawful possession of a firearm must be vacated in accordance with our holding in Commonwealth v. Guardado, 491 Mass. 666, 693 (Guardado I), S.C., 493 Mass. 1, 12 (2023) (Guardado II), cert. denied, 144 S. Ct. 2683 (2024).  Finally, pursuant to G. L. c. 278, § 33E, the defendant asks this court to reduce his murder conviction to involuntary manslaughter.[1]

      We agree with the defendant that his conviction of unlawful possession of a firearm must be vacated.  We conclude, however, that there was no prejudicial error requiring reversal of the remaining charges, and that the defendant is not entitled to a reduction in his sentence under G. L. c. 278, § 33E.[2]

      1.  Background.  a.  Facts.  We recite the facts that the jury could reasonably have found, reserving certain facts for later discussion.  See Commonwealth v. Tyler, 493 Mass. 752, 754 (2024).

      i.  The crimes.  From the evening of July 1, 2015, to the early morning hours of July 2, 2015, the defendant and Fisher traveled to three different hotels to rob three different women:  Sarah,[3] Emily,[4] and Sanisha Johnson.  The defendant found each woman through her advertisement for escort services on Backpage and posed as a customer to arrange a meeting with each of the three women.

      The defendant and Fisher first targeted Sarah.  On July 1, Sarah was staying at a hotel in Saugus (Saugus hotel).  Around 11 P.M., she received a telephone call from the defendant regarding her availability and the prices for her services.  Sarah sent text messages to the defendant containing the address of the Saugus hotel and instructions to call her on his arrival.  The defendant later called Sarah, who provided her room number.

      A security camera at the Saugus hotel recorded a light-colored Toyota Camry arriving at the hotel that night at approximately 11:30 P.M.  The Camry's gasoline cap cover and front right quarter panel appeared to be different colors from the Camry's body, and its left rear hubcap was missing.[5]  Further footage depicted Fisher walking through the front entrance of the hotel minutes after the Camry arrived.  Fisher entered a hotel hallway and opened an exterior door, allowing a second man into the hotel.  This second man was wearing a dark-colored hooded sweatshirt, a hat with stickers on the brim, dark-colored jeans, and dark-colored footwear.

      After allowing the second man into the hotel, Fisher approached Sarah's hotel room and knocked on the door.  Sarah looked through the peephole and observed Fisher on the other side of the door.  Sarah said, "I'm sorry, but I don't do [B]lack guys."  Fisher responded that he was Spanish, not Black.  Nonetheless, Sarah testified at trial that "[h]e just didn't look right to [her]," and she did not answer the door.  Fisher and the second man then left the hotel through a side door.[6]

      The defendant and Fisher next sought out Emily.  Although Emily lived in West Palm Beach, Florida, she was staying at a hotel in Woburn (Woburn hotel) on the night of July 1.  Like Sarah, Emily was contacted by the defendant via text message that evening at around 10:40 P.M.  The defendant booked an appointment with Emily for her services that evening.  Between 10:40 P.M. and 11:53 P.M., Emily continued to exchange text messages with the defendant to confirm where she was located, including her room number; the prices for her services; and the time of the defendant's arrival.

      As seen on surveillance footage recorded that night at the Woburn hotel, a light-colored Camry missing its left rear hubcap pulled into the hotel's parking lot at around 11:50 P.M.  After the Camry parked, the same man who had been seen with Fisher at the Saugus hotel entered the lobby of the Woburn hotel wearing a hat with an "'A's' logo" on it.  This man approached a side door of the hotel, opened it, and peered outside a few times.  He propped the side door open and exited through the lobby entrance while using his cell phone.  Moments later, this man and Fisher walked through the parking lot together and entered the hotel through the propped-open side door.

      At 11:53 P.M., Emily sent a text message with her room number to the defendant.  Shortly after, she heard a knock on her door.  Emily looked through the peephole and saw Fisher.  Once Emily opened the door, a second man, by inference the defendant, barged into her room.  Emily testified that this person was a stocky, medium-toned Black man wearing a gray hooded sweatshirt.  She also testified that this man was roughly her height -- five feet, four inches tall.[7]  She did not recall seeing facial hair or any tattoos on his fingers.[8]  The defendant grabbed the bottom part of Emily's face and pushed her into a closet and against its back wall.  After pulling out a gun and placing it against Emily's forehead, the defendant stated, "If you scream, believe me, I can scream louder.  Where da money at?  I'm not playin'.  Where da money at?"

      Emily agreed to give the two men her money and went to a nearby dresser to retrieve her purse.  Emily's purse contained not only her wallet but also various cards for herself and her children, including medical cards, Social Security cards, and an identification card, as well as receipts from stores in West Palm Beach.  The dresser also contained approximately "five joints worth" of marijuana.  After getting her purse from the dresser drawer, Emily recalled that she had hidden $700 elsewhere in the room and informed the men.  As Emily began to reach underneath the end table for the hidden money, the defendant, continuing to aim the gun at Emily, moved her away and instructed Fisher to take the hidden cash, which he did.  Fisher also looked through Emily's purse, which contained her wallet.

      The defendant told Emily to get on the floor by the foot of the bed closest to the window.  In response to the defendant's instruction to search the room, Fisher began ransacking the area.  After Fisher's search was complete and as both men were leaving the hotel room, the defendant told Emily, "I'll get back at you.  I'm gonna holler at you."  The whole encounter lasted from three to four minutes.  At 12:05 A.M. on July 2, the two men exited the hotel through the same side door they had entered and proceeded to drive away in the Camry.

      Around the same time, Johnson was staying at a hotel in Burlington (Burlington hotel).  Like the other two women, Johnson also had been communicating with the defendant and scheduled an appointment for that evening.

      Around 12:14 A.M. on July 2, security footage from a nearby business recorded a light-colored Camry entering the Burlington hotel's parking lot.  Minutes later, Fisher walked into the Burlington hotel through the front door.  As he walked through the lobby, Fisher appeared to be using his cell phone.

      Soon after, as depicted on the Burlington hotel's security footage, the same man who accompanied Fisher on the two prior outings to the Saugus and Woburn hotels, entered a side door of the hotel.  This man, by inference the defendant, was wearing dark pants and a dark hooded sweatshirt, with the hood pulled up over his head.  The hotel security footage shows that once inside, he waited a few seconds at an internal door leading to a hallway and then entered.  Minutes later, at around 12:23 A.M., both men ran through the internal hallway door and out the external side door.  The Camry was then driven from the hotel parking lot with its headlights off until it turned onto the street shortly afterward.

      Between the times that the two men arrived at and departed from the Burlington hotel, guests staying near Johnson's hotel room reported to police that they heard screams and a gunshot.  Two guests in an adjacent room recalled hearing a woman call out, "Help me, help me," followed by a loud bang.  Another guest similarly reported hearing a woman scream, "Somebody help me, please," and then a loud bang.  Additionally, an overnight employee of the Burlington hotel, who independently heard a loud bang, received two telephone calls from guests regarding the sound of gun shots.  After answering the second telephone call, the overnight employee called the police.

      Robert Dingess, a long-term guest who had been staying for several months at the Burlington hotel, was among the guests who had heard a gunshot.  During his stay, Dingess came to know the defendant, who was employed at the Burlington hotel around the time of the shooting.  They exchanged several text messages over the course of Dingess's extended stay and saw each other nearly daily.  Dingess also bought marijuana from the defendant.

      At 1:33 A.M., just over one hour after the two individuals fled through the side door of the Burlington hotel, Dingess received a text message from the defendant.  The defendant asked Dingess what had happened at the hotel, and Dingess explained to the defendant that someone had heard a woman scream, followed by a gunshot.  The defendant asked Dingess if anyone from any news stations had arrived so he could "katch [sic] anything" on the news.  Dingess replied that no one had arrived.  Unprompted, Dingess sent a text message to the defendant at about 3 A.M. to notify him that someone had been found dead at the hotel.  The defendant responded minutes later via text message, requesting that Dingess delete the defendant's cell phone number and messages between the two.  The defendant, at about 5 A.M., provided an alternative telephone number for Dingess to use to contact him.

      ii.  The investigation.  At around 12:30 A.M. on July 2, in response to a radio call, officers from the Burlington police department arrived at the Burlington hotel, where they discovered Johnson's body in her hotel room.  One officer observed an injury to Johnson's torso that he believed to be a potential gunshot wound.  A medical examiner later confirmed Johnson's cause of death was a gunshot wound to her torso caused by a .38 caliber projectile.

      After officers obtained statements from hotel guests, they spoke with the overnight employee at the front desk.  This employee gave one of the officers a wallet that had been turned in earlier that morning to the hotel's lost and found.  Later that morning, the officer inspected the contents of the wallet, finding, among other items, a receipt from a variety store in West Palm Beach.

      On the evening of July 3, Emily contacted the police after seeing coverage of the Burlington hotel incident on television.  The next day, officers traveled to where Emily was staying to speak with her in person.  The officers then drove Emily to the police station, where she was asked to identify the men who robbed her.  From a photographic array, Emily selected one photograph stating that while she was "[p]retty sure" that the photograph depicted the man who robbed her, as he had the "same features," she was "[n]ot positive."  The photograph Emily selected was not that of the defendant, despite the defendant's photograph being included in the array.

      Sometime later, another officer sent a text message to Emily containing photographs of the receipt and wallet that had been turned in at the Burlington hotel's lost and found.  Emily responded that the receipt was from a store she frequented in Florida and confirmed that the wallet was hers.

      On July 2, 2015, State Police Trooper Sean O'Brien retrieved security video footage from the Burlington hotel.  During his visit to the Burlington hotel, he observed a nearby building with a security camera that recorded the entrance and exit of the Burlington hotel and retrieved video footage from this camera as well.  O'Brien viewed these videos dozens of times.  O'Brien later traveled to both the Woburn hotel and the Saugus hotel to obtain and view further security footage.

      Based on a review of telephone records and other information, O'Brien and another officer drove by the defendant's residence in Burlington on the morning of July 3.  As they approached the residence, the officers observed a light-colored four-door Camry, which was missing its left rear hubcap and had a dark front right quarter panel, parked in the driveway.  O'Brien recognized the car as the same vehicle in the surveillance videos he had viewed.  While the officers were setting up their surveillance on a nearby street, the defendant's Camry left the driveway.  The officers were notified later that evening that the Camry was spotted at a fast-food restaurant in Winchester.  After traveling to the restaurant, the officers found the defendant's Camry parked adjacent to the drive-through window.  When the officers approached the vehicle, they discovered the defendant and Fisher inside, with a third man sitting in the back seat.

      O'Brien informed the defendant, who was in the driver's seat, that he was not under arrest and requested that he step out of the vehicle to speak.  O'Brien asked the defendant where he was on the night of July 1, and the defendant answered that he was with his girlfriend in Roxbury from 10 P.M. to 7 A.M. the next morning.  The defendant declined to provide a name or address for his girlfriend.  The defendant also asserted that he was the only one with keys to his Camry and that on the night of July 1, no one else had used this car, which was parked at his girlfriend's residence.

      Based on its similar appearance to the vehicle in the surveillance footage, the defendant's Camry was seized as evidence.  When police later executed a warrant to search the Camry, they found the defendant's Alcatel brand cell phone (with an assigned telephone number matching the alternative number that the defendant had provided Dingess); a bag of marijuana; and a hotel room card and a hotel employee nametag bearing the defendant's nickname, Remy, both bearing the same hotel name as the Burlington hotel.

      After searching the defendant's Alcatel cell phone pursuant to a warrant, police discovered that the cell phone had accessed Backpage's escort section 199 times and had been used to view Sarah's, Emily's, and Johnson's advertisements on the evening of July 1.  Approximately one hour after Johnson's body was discovered by police, this cell phone was used to check for breaking news.  The cell phone also was used to monitor various online news outlets throughout the afternoon of July 2 and over the following days for articles concerning the shooting death of the victim at the Burlington hotel.

      The defendant further used his cell phone to stay in frequent contact with Fisher throughout the day on July 2, exchanging several calls and text messages.  Among the exchanges, the defendant sent a text message to Fisher on the afternoon of July 2 that stated:  "Ima kall u in a min.  Its on da news."  The defendant also repeatedly called and sent text messages to the mother of his child from the same cell phone, referencing news coverage of the murder.  As in his interactions with Dingess, the defendant requested she delete his text messages and calls.

      Police obtained a warrant allowing them to access cell phone records containing location data associated with the defendant's cell phone numbers.  These records reveal that one of the defendant's cell phones activated towers in Saugus, Woburn, and Burlington on the night of July 1 and in the early morning of July 2 at the times the cell phone was being used to communicate with Sarah, Emily, and Johnson, respectively.

      Police additionally secured a warrant authorizing a search of the defendant's residence.  On July 4, after arriving at the defendant's residence, one officer observed a blue Jeep Cherokee sport utility vehicle with a flat tire in the driveway.  The vehicle did not have any license plates.  However, it did have an inspection sticker on the windshield with a license plate number that matched the license plate number affixed to the defendant's Camry.  Officers later confirmed that the blue Jeep was registered to the defendant.

      The officer searched the blue Jeep.  Underneath a blanket on the front passenger seat, the officer discovered various cards, each bearing either Emily's name or the name of one of her family members, including Social Security cards, health care cards, a debit card, an identification card, and a business card.  Emily later verified that these cards belonged to her.  The officer continued to search the vehicle and noticed an unzipped black backpack on the rear seat of the driver's side.  Within this backpack was a clear plastic bag containing .38 caliber ammunition -- the same caliber of the projectile recovered from Johnson's body.  When the officers searched the defendant's home, they found a box for an Alcatel cell phone, an "Oakland A's" hat similar to the hat the second man was wearing in the security footage, and a hotel key card exhibiting the same hotel name as the Burlington hotel.

      b.  Procedural history.  On August 15, 2015, a grand jury indicted the defendant for (1) murder in the first degree in violation of G. L. c. 265, § 1; (2) attempted armed robbery of Johnson in violation of G. L. c. 274, § 6; (3) unlawful possession of a firearm in violation of G. L. c. 269, § 10 (a); (4) armed robbery of Emily in violation of G. L. c. 265, § 17; (5) home invasion of Emily in violation of G. L. c. 265, § 18C; and (6) armed assault in the dwelling of Emily in violation of G. L. c. 265, § 18A.

      In November 2017, the defendant and Fisher were tried jointly before a jury.  The jury convicted the defendant on each indictment.  For the charge of murder in the first degree, the jury found the defendant guilty on a theory of felony-murder, with attempted armed robbery as the predicate offense.

      The defendant timely appealed from his convictions to this court.

      2.  Discussion.  a.  Juror dismissal.  The defendant argues that the trial judge's dismissal of two Black jurors -- juror nos. 14 and 65 -- for cause resulted in structural error.  The Commonwealth contends that it was not an error to dismiss either juror where the record illustrates that the judge had legitimate concerns about each juror's ability to comprehend the legal proceedings.  Both parties acknowledge that this is an identical issue to the one presented and rejected by this court in Commonwealth v. Fisher, 492 Mass. 823, 842-849 (2023).  We conclude there is no reason to depart from our prior holding.

      During a voir dire examination of juror no. 14, the juror was asked about the presumption of innocence and responded:  "I do not exactly know what [presumption of innocence] means, so I don't think I really have a position here.  It's sad."  The Commonwealth asked the juror if she would be "able to look at each defendant individually and determine on the evidence whether the case is proved against them beyond a reasonable doubt."  The juror responded, "Um, I do not know.  No?"  Juror no. 65 expressed a concern that her language abilities could make it difficult for her to be a juror, as English was not her first language.  When the trial judge inquired into her answers to the juror questionnaire, it became apparent that the juror had misunderstood some of the questions.  For instance, although the juror indicated on the questionnaire that she knew someone from the district attorney's office for Middlesex County, she told the judge that she did not know anyone from that office.  Both jurors were excused for cause.[9]

      We review a judge's dismissal of jurors for an abuse of discretion.  Fisher, 492 Mass. at 846, citing Commonwealth v. Grier, 490 Mass. 455, 467 (2022).  Absent a judge's "'clear error of judgment in weighing' the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives," we must uphold the judge's decision.  L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).  A judge must ensure that jurors can "fairly evaluate the evidence and apply the judge's instructions on the law."  Commonwealth v. Williams, 481 Mass. 443, 453 (2019).  Key to these concerns is whether a juror comprehends the proceedings.  See Grier, supra at 468 (lack of candor and lack of comprehension are "both . . . legitimate reasons to doubt the juror's suitability to serve").  See also G. L. c. 234A, § 67A (where judge, on examination of juror, finds juror does not understand certain core concepts of criminal trial, including presumption of innocence, "another juror shall be called in").

      As we pointed out in Fisher, 492 Mass. at 848, both jurors "gave answers that illustrated their lack of comprehension, despite both of their seemingly genuine efforts to understand."  Because lack of comprehension is a "legitimate reason[] to doubt [a] juror's suitability to serve," the dismissal of these jurors was not an abuse of discretion.  Grier, 490 Mass. at 468.  See Fisher, supra.

      b.  O'Brien's identification of the defendant.  The defendant next argues that he was prejudiced by the erroneous admission of O'Brien's identification of the defendant in the surveillance footage.  O'Brien testified at trial that, based on a video of the defendant at work as well as the Woburn and Burlington hotels' security footage, he believed that the second person accompanying Fisher in all three hotel security videos was the defendant.  We conclude, as we did in Fisher, 492 Mass. at 851, that while the identification was admitted in error, it did not result in prejudice that requires us to reverse the defendant's conviction.

      Prior to trial, the defendant moved to exclude lay opinion testimony regarding the identity of persons in the surveillance videos from the three hotels.  In his motion, the defendant argued that this case did not "present the unique circumstance in which witnesses have been allowed to offer lay opinions concerning the identity of persons in photographs and videos," such as poor image quality, officer familiarity with the defendant, and changes in the appearance of the defendant at trial.  The Commonwealth opposed the motion and filed its own motion seeking to allow the testimony.  Ultimately, the judge allowed the Commonwealth's motion in part, writing in a margin endorsement:

"ALLOWED as to one witness (Trooper O'Brien).  I have reviewed the videos in question and find they are generally of good quality, but neither unmistakably clear nor hopelessly obscure.  The appearances of the defendants as they will be seen in court are different than the appearances of the persons in the videos, where hats and hooded sweatshirts obscure some of the features.  One of the defendants is wearing glasses in court and it is not clear that the persons in the video[s] are wearing glasses.  Finally, the Trooper's familiarity with the defendants based on his investigation of this matter is a factor weighing in favor of the admissibility of such an identification."

      At trial, O'Brien testified to several key facts about the investigation, including his review of the various surveillance video recordings.  O'Brien explained to the jury that he had viewed these videos "[m]ultiple times, dozens and dozens of times."  Discussing the hotel surveillance videos collectively, O'Brien testified that he believed the same two men were depicted in all three videos.  He identified one man as Fisher and the other as the defendant.  O'Brien further noted that the man he believed to be the defendant was wearing a dark sweatshirt with a hood, dark-colored jeans, and dark footwear consistently in the surveillance videos from each of the three hotels.  O'Brien also observed that a video of the defendant working showed the defendant's "distinctive" gait.  According to O'Brien, this matched the gait of the second man in the security footage from the Saugus and Woburn hotels, who "walked . . . almost with his toes in a pointed outward direction."

      The defendant objected to O'Brien's identification at trial, and we therefore review the admission of O'Brien's testimony identifying the defendant for prejudicial error.  Fisher, 492 Mass. at 850.  In Fisher, we explained that "identifying a person from a video image is admissible only where the subject matter to which the testimony relates cannot be reproduced or described to the jury precisely as it appeared to the witness at the time" (quotations omitted).  Id., quoting Commonwealth v. Wardsworth, 482 Mass. 454, 475 (2019).  We held that it was error to allow O'Brien to identify Fisher in the surveillance footage, reasoning that the jury could view for themselves the surveillance footage and other photographs of Fisher taken close in time to the night of Johnson's death, there was no indication that Fisher's appearance changed substantially from the time of the recordings to the time of trial, and O'Brien lacked sufficient familiarity with Fisher.  See Fisher, supra at 851.

      We next examined whether this error resulted in prejudice.  As we explained, we previously have determined that "no prejudice existed in specific circumstances where the evidence against the defendant was strong, where the identification was fleeting, or where the defendant admitted to being present at the scene."  Fisher, 492 Mass. at 851.  In concluding that Fisher was not prejudiced, we reasoned that although Fisher did not admit to being at the scene, the evidence against Fisher was strong.  Id. at 852.  This included Fisher's physical similarity to the man in the video footage, his presence in the defendant's car on the day after the shooting, his lies to officers about his whereabouts at the time of the crimes, the incriminating text messages between Fisher and the defendant, and the cell site location information placing Fisher in Boston before and after the murder.  Id.  We further noted that "most impactful" to our determination were the judge's "several forceful instructions regarding O'Brien's identification."  Id. at 853.  We determined that "[t]his evidence, connected with the abundance of evidence against [the defendant], [Fisher's] joint venturer, support[ed] our conclusion" that there was no prejudice.  Id. at 852.

      The same reasoning applies here with equal, if not greater, force.  It was an error to admit O'Brien's identification of the defendant where the jury could directly view the security footage and arrive at their own conclusions about the appearance and gait of the man that O'Brien identified as the defendant.  Additionally, O'Brien lacked familiarity with the defendant and there was no evidence of any marked changes in the defendant's appearance between the night of the murder and the time of the trial.  Nonetheless, the improper testimony was not prejudicial to the defendant.

      The evidence of the defendant's role as an active participant in the fatal robbery is even more compelling than the evidence against Fisher.  Introduced in evidence were photographs of the defendant that had been taken close in time to the night of the murder, including photographs of the defendant found on his Alcatel cell phone, photographs documenting the defendant's encounter with the police at the fast-food restaurant the day after the shooting, and a booking photograph of the defendant.  These photographs provided an independent source from which the jury could determine if the defendant was the man present in the security footage.  The defendant's cell phone records further revealed that the defendant was present in Burlington, Saugus, and Woburn during the night of July 1 and the early hours of July 2; had accessed each of the three women's Backpage advertisements; sent text messages to each woman to arrange a meeting; communicated with Dingess requesting information about the shooting one hour after the two men had fled the Burlington hotel; and repeatedly searched for news of a shooting death at a hotel in Burlington hours after Johnson was killed.  Additionally, visible in each of the hotel surveillance videos is a light-colored Camry with unique features matching the car registered to the defendant and found at his residence.  In another vehicle registered to the defendant, bullets matching the caliber of the projectile that killed Johnson were discovered, along with several identification cards belonging to Emily that were taken from her possession on the evening of July 1.  The strength of this collective evidence, which was properly admitted, weighs against a determination of prejudice.  See Commonwealth v. Vacher, 469 Mass. 425, 442 (2014) ("The testimony . . . did not overwhelm the other compelling, properly admitted evidence against the defendant"); Commonwealth v. Austin, 421 Mass. 357, 366 (1995) ("The evidence pointing to the defendant was overwhelming and the officer's testimony was merely cumulative of other identification evidence properly admitted against the defendant").

      Next, the trial judge made "several forceful instructions regarding O'Brien's identification of the defendant on the video recording."  Fisher, 492 Mass. at 853.  One instruction was contemporaneous with O'Brien's testimony and two additional instructions were given after the close of evidence.  In each instruction, the judge explicitly mentioned O'Brien's name and emphasized that it was the jury's "determination and [their] determination alone" regarding the identity of the perpetrators.  Because we presume that the jury follows the judge's instructions, this further weighs against a finding of prejudice.  See Commonwealth v. Andrade, 468 Mass. 543, 549 (2014).

      Based on the strength of the properly admitted evidence linking the defendant to the crimes and the trial judge's repeated instructions, we hold that this error did not prejudice the defendant.

      c.  Erroneous jury instruction.  Before the defendant was tried, we decided Commonwealth v. Brown, 477 Mass. 805, 807 (2017), cert. denied, 139 S. Ct. 54 (2018), in which we "[did] away with constructive malice and abolish[ed] felony-murder as an 'independent theory of liability for murder'" (citation omitted).  Tyler, 493 Mass. at 759.  The Commonwealth therefore needed to prove actual malice -- i.e., that the defendant either "intended to kill or to cause grievous bodily harm, or intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result."  Brown, supra at 825 (Gants, C.J., concurring).

      The trial judge instructed the jury that to find the defendant guilty of felony-murder, the Commonwealth was required to

"prove beyond a reasonable doubt that the defendants knowingly participated in the commission of the underlying felony, here an attempted armed robbery, that he did so with the intent required to commit the underlying crime, and that he had or shared the intent to kill, the intent to cause grievous bodily harm, or the intent to do an act which in the circumstances known to him a reasonable person would have known created a plain and strong likelihood that death would result."

      During deliberations, the jury asked for clarification whether "[i]ntended to do an act" meant "attempted armed robbery or the discharge of a firearm."  The trial judge answered the jury, over the defendant's objection, as follows: 

"You must determine separately for each defendant from the totality of the circumstances which you find occurred whether what occurred constitutes an intent to do an act which in the circumstances known to the defendant a reasonable person would have known created a plain and strong likelihood that death would occur."

The defendant argues that the instructions the trial judge provided ran afoul of Brown and "permitted the jury to find the defendant guilty of murder based upon constructive malice for merely acting as a participant in an attempted armed robbery."  He maintains that the judge should have instructed the jury to "focus . . . on the defendant's intent at 'the moment of the discharge of the firearm.'"  Because the defendant objected to these instructions at trial, we review for prejudicial error.  See Commonwealth v. Odgren, 483 Mass. 41, 46 (2019).

We considered the same challenge to the same jury instructions in Fisher, 492 Mass. at 861.  We concluded that the judge's instructions were consistent with Brown, 477 Mass. at 832, and comported with the model jury instructions, and that the evidence supported the jury's finding of malice.  Fisher, supra at 861-863.  We explained that for purposes of third prong malice, the "act," which we left undefined in Brown, "could be the shooting of a gun," but "could also reasonably be the commission of a dangerous attempted armed robbery, which a reasonable person would have known created a plain and strong likelihood that death would occur."  Fisher, supra at 862.  As we previously held, there was no error in these jury instructions.

d.  Accident instruction.  The defendant further argues that the trial judge erred in denying a requested accident instruction as a defense to the murder charge based on the theory that the shot that killed Johnson accidentally was discharged.  See Commonwealth v. Zezima, 387 Mass. 748, 756 (1982).  Where a defendant objects, as he did here, we review for prejudicial error.  Commonwealth v. Pina, 481 Mass. 413, 417-418 (2019).

"A defendant is entitled to an accident instruction in a shooting death 'only where there is evidence of an unintentional or accidental discharge of a firearm.'"  Pina, 481 Mass. at 418, quoting Commonwealth v. Millyan, 399 Mass. 171, 182 (1987).  The defendant argues that the "issue of accident was fairly raised on the facts of the case" but points to no evidence presented at trial.  As we noted in Fisher, 492 Mass. at 863 n.43, "[i]n the absence of any evidence that the murder of Johnson was an accident, the defendant was not entitled to an instruction on accident."  Because there was no evidence demonstrating that the defendant was entitled to an accident instruction, the judge did not err in denying this requested instruction.

e.  Firearm conviction.  The defendant was found guilty of unlawful possession of a firearm in violation of G. L. c. 269, § 10 (a).  There was no instruction at trial that required the Commonwealth to prove, as an essential element of the crime, that the defendant lacked a firearms license, and no such evidence was presented at trial.  The defendant's Second Amendment and due process rights were therefore violated.  See Guardado I, 491 Mass. at 693.  As the Commonwealth concedes, the proper remedy for this error is to remand for a new trial on that charge.  See Guardado II, 493 Mass. at 6.  We therefore vacate the defendant's conviction of unlawful possession of a firearm and remand for a new trial on that charge.  See Commonwealth v. Gibson, 492 Mass. 559, 579 (2023).

f.  Review under G. L. c. 278, § 33E.  Finally, with respect to the defendant's conviction of murder in the first degree, the defendant asks this court to direct the entry of a verdict of a lesser degree of guilt -- involuntary manslaughter -- pursuant to G. L. c. 278, § 33E.  After reviewing the entire record, we decline to do so.

3.  Conclusion.  We vacate the judgment convicting the defendant of unlawful possession of a firearm, set aside that verdict, and remand the case to the Superior Court to allow for a new trial on that charge.  We further vacate the judgment convicting the defendant of attempted armed robbery as duplicative and affirm the remaining judgments.

So ordered.

footnotes

[1] The defendant advances several arguments that largely mirror those raised on appeal by Fisher, whose convictions we recently affirmed.  See Commonwealth v. Fisher, 492 Mass. 823 (2023).

[2] As the Commonwealth concedes, the defendant's conviction of attempted armed robbery is a lesser included offense that is duplicative of the defendant's felony-murder conviction.  See Commonwealth v. Tyler, 493 Mass. 752, 757 n.4 (2024).  Because a defendant "cannot simultaneously be convicted of a crime and of its lesser included offense," we vacate the defendant's conviction of attempted armed robbery.  Commonwealth v. Rivera, 445 Mass. 119, 132 (2005).

[3] A pseudonym.

[4] A pseudonym.

[5] Police later learned that a light-colored four-door Camry, missing its left rear hubcap and with a dark front right quarter panel, was registered to the defendant.

[6] The defendant was not charged with the attempted robbery of Sarah.  The trial judge instructed the jury that evidence of this first incident was to be used "only for the limited purpose of determining the issues of motive, knowledge, state of mind, intent, plan, pattern of operation, common scheme or modus operandi, the absence of accident or a mistake, or the possession of instrumentalities capable of inflicting injury and identity."

[7] Emily also testified that the two men were about the same height.  Fisher is approximately six feet tall.

[8] At the time of his booking, the defendant had facial hair and distinctive tattoos on his hands.

[9] The defendant objected to the dismissal of juror no. 65 but acknowledges that he withdrew an objection to the dismissal of juror no. 14.  However, he asserts that because Fisher also objected to juror no. 14's dismissal and did not withdraw his objection, the objection was preserved for each party.  See Commonwealth v. Bookman, 492 Mass. 396, 398 (2023).  Because we conclude no error resulted from the judge's dismissal, we do not decide this issue.