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SJC-08768
COMMONWEALTH vs. JAMES ANTHONY MARTIN.
Middlesex. December 5, 2019. - May 5, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Homicide. Felony-Murder Rule. Constitutional Law, Assistance of counsel, Retroactivity of judicial holding. Retroactivity of Judicial Holding. Practice, Criminal, Capital case, Assistance of counsel, Retroactivity of judicial holding, Request for jury instructions.
Indictment found and returned in the Superior Court Department on December 14, 1976.
The case was tried before Robert A. Mulligan, J., and a motion for a new trial, filed on February 18, 2016, was heard by Merita A. Hopkins, J.
Claudia Leis Bolgen for the defendant. Timothy Ferriter, Assistant District Attorney, for the Commonwealth.
GANTS, C.J. On the evening of September 9, 1976, the
defendant, James Anthony Martin, attempted to steal the cash
that Richard Paulsen and his older brother, Edward, brought to 2
purchase drugs from Gordon Kent Brown in Brown's apartment in
Cambridge. In doing so, the defendant shot and killed Edward1
with a single gunshot in the chest. The defendant then fled to
Canada, where he was apprehended late in 1999. On May 10, 2001,
a Superior Court jury found the defendant guilty of murder in
the first degree on the theory of felony-murder. He
subsequently moved for a new trial, which motion was denied by a
judge other than the trial judge, who had retired. We
consolidated the defendant's direct appeal from his conviction
with his appeal from the denial of the motion for a new trial.
The defendant makes three arguments on appeal. First, he
contends that his motion for a new trial was wrongly denied
because he was deprived of his constitutional right to the
effective assistance of counsel, especially in light of
strategic errors his attorney made in his opening statement,
which resulted in a substantial likelihood of a miscarriage of
justice. Second, the defendant claims that we should extend the
reach of our holding in Commonwealth v. Brown, 477 Mass. 805,
807 (2017), cert. denied, 139 S. Ct. 54 (2018), to his case,
where the appeal was pending when Brown was decided, even though
we limited that holding to cases where trial commenced after the
date of the opinion, which would exclude this case. Third, the
1 To avoid confusion, we refer to Richard by his first name and Edward as the victim. 3
defendant argues that the trial judge committed prejudicial
error when he declined the defendant's request that the jury be
instructed on the elements of voluntary and involuntary
manslaughter.
The defendant also asks that we exercise our extraordinary
authority under G. L. c. 278, § 33E, and order a new trial or
reduce the defendant's conviction to murder in the second
degree, because his conviction of murder in the first degree is
not consonant with justice. We affirm the defendant's
conviction of murder in the first degree and the denial of his
motion for a new trial, and after plenary review of the entirety
of the record, we decline to exercise our authority under § 33E.
Background. We recite the facts as the jury could have
found them in the light most favorable to the Commonwealth,
reserving certain details for later discussion.
In 1976, the victim introduced Richard to a drug dealer,
Brown, who could supply Richard with drugs. Richard's first
purchase from Brown took place outside Symphony Hall in Boston.
The victim accompanied Richard, who paid cash to Brown in
exchange for the drugs. As testified to by Richard, the
transaction went "very smoothly" and was a "friendly"
interaction.
Richard's second purchase from Brown took place at Brown's
apartment on the second floor of a three-story house in 4
Cambridge. The victim again accompanied Richard to the
transaction, and in the living room of the apartment, Brown
handed Richard the drugs in exchange for cash. During these
first two transactions, Richard purchased an amount of marijuana
for $150 and one pound of hashish for $900.2
For the third purchase, the victim arranged for Richard to
buy one kilogram of hashish from Brown for $1,600 at Brown's
apartment. On September 9, 1976, the victim and Richard arrived
at the apartment between 9 P.M. and 9:30 P.M. Richard carried
with him a box with a scale inside to weigh the hashish and
$1,600 for the purchase. When they entered the apartment, Brown
appeared to be agitated and uneasy, which was completely
different from his "happy-go-lucky" demeanor during the first
two transactions. Brown told Richard and the victim that the
person bringing the drugs had not yet arrived. Brown said he
was going to step out and buy some beer but would be right back.
Uncomfortable with Brown's behavior, the victim and Richard
decided to leave the apartment. As they walked downstairs, they
passed two people ascending the stairs -- a woman and a man --
later identified as Meredith Weiss and the defendant, who
carried a paper bag. Once the victim and Richard were outside,
Richard could see that the defendant and Weiss were inside
2 Richard testified that he could not recall which of the two transactions involved hashish and which involved marijuana. 5
Brown's apartment. The victim and Richard returned to the
apartment and asked Brown, who had since returned, whether those
two individuals were the people with the drugs. Brown said that
they were not, so the victim and Richard left again and drove
around for fifteen minutes before returning to the apartment,
with Richard still carrying the box containing the scale and the
money. Brown, his demeanor still uneasy, let the brothers into
the apartment and brought them into a bedroom. Brown then left
them alone in the bedroom, telling them that he had to speak
with his landlord.
Immediately after Brown left, the defendant entered the
bedroom from an adjoining room. The defendant pointed a gun at
Richard and the victim and asked them where the money was. The
victim raised his hands in the air, palms wide open, and told
the defendant to "wait a minute." The defendant then shot the
victim in the chest from a distance of approximately five feet.
The victim fell backwards, and Richard ran to him, guiding him
to the floor. The defendant again asked where the money was,
and Richard told him that the money was in their car. The
defendant searched the victim's pockets and left.
After the defendant left the bedroom, Richard went out the
window onto the porch and dropped to the ground. He saw people
playing softball at a field across the street, so he ran over,
screaming for help. Richard then led some ball players back to 6
the apartment, and two individuals performed cardiopulmonary
resuscitation on the victim until emergency services arrived.
The victim died that night of a single gunshot wound to the left
chest.
Weiss, who was the defendant's girlfriend at the time,
testified that she had driven the defendant to the apartment
that evening. The defendant told her that he needed to go to
Brown's apartment for a drug deal, although Weiss did not see
any drugs that day. The defendant also told Weiss that he was
carrying a gun for protection because he was concerned about
selling drugs to individuals he did not know. Weiss and the
defendant passed two men as they went up the stairs to Brown's
apartment. After Brown spoke privately with the defendant, the
defendant asked Weiss to wait downstairs, so she returned to the
vehicle. She had waited there about ten to twenty minutes when
she heard a bang.
Five minutes later, Brown entered Weiss's car, followed
shortly by the defendant. Both men appeared panicked, and the
defendant told Weiss, "Let's get out of here." Weiss drove
Brown and the defendant to the apartment in Somerville that she
shared with the defendant and then to Medford, where they stayed
for two nights at a friend's apartment.3 After learning that the
3 Weiss testified that she could not recall if Brown was still with them when she and the defendant went to Medford. 7
victim had died, Weiss drove the defendant and Brown to a
Boston-area bridge, where the firearm was thrown into the water,
and continued on to the Port Authority bus station in New York
City, where she dropped off the defendant and Brown. Weiss
continued on to her parents' home in New Jersey, where she was
arrested and charged with being an accessory after the fact to
murder.4
Brown and the defendant traveled by bus to California,
where the defendant telephoned his cousin, Douglas Nesbitt, late
one night and asked if they could stay with him. Less than an
hour later, the defendant and Brown appeared at Nesbitt's
apartment. Nesbitt testified that the defendant explained that
he was in California because he had been involved in a drug deal
in Cambridge involving "two white guys" that had "gone bad."5
The defendant told Nesbitt that, while he was negotiating the
drug deal, one of the white guys pulled out a gun and "tried to
stick them up." He and one of the white guys wrestled over the
gun, and the older white guy got shot. When Nesbitt returned
home the next day, the defendant and Brown had left.
4 This charge was dismissed without prejudice in 1977. In 1982 Weiss entered into an agreement with the Commonwealth in which the Commonwealth agreed not to renew charges against her if she agreed to testify against Brown at his 1982 trial and against the defendant if and when he was arrested and tried.
5 The victim and Richard are Caucasian; the defendant is black. 8
The defendant remained a fugitive for many years. In
December 1999, he was apprehended by Canadian authorities in
Montreal, where he lived under a different name, and was brought
to Massachusetts to be tried for murder.
Richard Kaufman, a forensic chemist at the State police
crime laboratory, analyzed the victim's jacket for gunpowder
residue in the area where the bullet penetrated the victim's
chest and did not detect any nitrate particles or partially
burned gunpowder particles around the hole in the jacket. He
testified that if the weapon had been fired close to the
garment, there would be gunpowder residue in that area.
William Duke, a State police ballistician, attended the
victim's autopsy and offered the opinion that, in light of the
lack of evidence of any surrounding tissue damage or powder on
the skin, the wound was not a contact wound, that is, the muzzle
of the weapon was not touching or very close to the victim or to
the victim's clothing when it was fired. Duke further opined
that, if the firearm had been shot within one foot of the
victim, he would expect to see plainly visible gunshot residue
particles on the jacket; if the firearm had been shot within six
inches, he would expect to see a heavier concentration of
gunshot residue with less spread; and if the firearm had been
pressing up against the jacket when it was fired, he would
expect to see an entrance wound almost the size of a golf ball, 9
with heavy black singe and burn marks plainly visible on the
jacket.
Discussion. 1. Ineffective assistance of counsel. The
defendant gives three reasons why he was deprived of his
constitutional right to the effective assistance of counsel.
First, defense counsel in his opening statement told the jury
that Brown would testify that "this was an armed robbery and not
a drug deal," even though the prosecutor had not expressly
promised to call Brown as a witness, and defense counsel did not
intend to call him; Brown ultimately did not testify at trial.
Second, defense counsel promised in his opening statement to
elicit through cross-examination of the testifying police
officers "how drug deals are handled," but never elicited that
testimony at trial. Third, defense counsel visited the
defendant only six times before trial and failed adequately to
prepare for trial. We address each claim in turn.
a. Describing Brown's anticipated trial testimony in
opening statement. Before jury empanelment, at a motion in
limine hearing, the judge asked the prosecutor, "Is Mr. Brown
going to be a witness in this case?" The Commonwealth replied
that Brown would be brought into court and that his attorney had
indicated that he would testify if called. But the prosecutor
added, "Strategically, I don't know. . . . [H]e will be
available to testify. I'm not promising him to the jury." In 10
his opening statement, the prosecutor did not promise the jury
that Brown would be a witness or describe evidence that only
Brown would have known. But in defense counsel's opening
statement, he declared:
"You will hear from Gordon Brown during the course of this case, Gordon Kent Brown. And Gordon Kent Brown has been in jail for a substantial period of time. And in 1999 he had a parole hearing, and he was turned down for parole. The police came to see Gordon Kent Brown shortly after he was turned down for parole and asked him about [the defendant], asked him if he knew where he was, wanted information about him, so that they could arrest [the defendant]. Mr. Brown's response to that was in the negative initially, but there was a second visit shortly after the first during which Mr. Brown began negotiations for [the defendant's] whereabouts. That is, he wanted money in exchange for bringing information that he could provide him about [the defendant].
"A year after the first parole hearing there was a second parole hearing. Mr. Brown who had been turned down for parole previously wanted to get this parole this time, and, so, during the course of the parole hearing he agreed to assist the police, to help the government in this prosecution against [the defendant] who had by that time been arrested, and based at least in part upon the representations that he made, that he was going to help, he was granted parole. At the time he was granted parole he knew [Richard] Paulsen's story. He knew that [Richard] Paulsen had told the police that this was an armed robbery and not a drug deal, and he knew that he had to agree with that story in order to get parole. And, so, he did."
At a sidebar conference after defense counsel's opening
statement, the prosecutor stated, "I just want to be clear. I
never promised the jury Gordon Brown," and "on the record I said
that I was -- I don't want to say ambivalent, but I didn't know
whether I was going to call Mr. Brown." The prosecutor asked 11
that the jury be reinstructed that opening statements are not
evidence; the judge declined to do so. Neither the Commonwealth
nor defense counsel called Brown to testify during the course of
trial.
At the evidentiary hearing on the motion for a new trial on
October 5, 2018, defense counsel testified that he never
intended to call Brown as a witness but expected from his
experience as a defense attorney that the Commonwealth would
call Brown to testify because Brown was on the witness list, had
entered into a "plea agreement" with the Commonwealth, and was
still in custody. Based on his understanding of the research on
opening statements "and the concepts of primacy and recency in
persuading jurors," he wanted the jury to know of "Brown's
baggage . . . from the get go, and not after he'd been
introduced by the prosecutor," who, on direct examination, would
make "an effort to diminish the import of what his prior life
had been." He conceded, "[H]indsight being 20/20, I might not
have done that today."
"Where, as here, the defendant's ineffective assistance of
counsel claim is based on a tactical or strategic decision, the
test is whether the decision was 'manifestly unreasonable when
made'" (quotation omitted). Commonwealth v. Kolenovic, 471
Mass. 664, 674 (2015), S.C., 478 Mass. 189 (2017), quoting
Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). In making 12
this determination, we "focus on the point in time when counsel
made the challenged strategic decision," not with the benefit of
hindsight, and decide whether "lawyers of ordinary training and
skill in the criminal law" would consider the strategic or
tactical decision to be "competent" (citation omitted).
Kolenovic, supra. "The manifestly unreasonable test, therefore,
is essentially a search for rationality in counsel's strategic
decisions, taking into account all the circumstances known or
that should have been known to counsel in the exercise of his
[or her] duty to provide effective representation to the client
and not whether counsel could have made alternative choices."
Id. at 674-675.
The thrust of the defense, as articulated by defense
counsel in opening statement, was that "this was a drug deal
gone bad during the course of which the gun was flashed, a
struggle ensued, the gun went off accidentally, and [the victim]
was killed." We conclude that, where defense counsel did not
intend to call Brown as a witness, where the prosecutor earlier
that day had told the judge in the presence of defense counsel
that, strategically, he was not sure he would call Brown, and
where the prosecutor did not tell the jury that Brown would
testify or describe any evidence that only Brown could testify
to, it was manifestly unreasonable to tell the jury that Brown
would testify that what had occurred here was an armed robbery. 13
To be sure, if Brown were to have testified, it would have been
reasonable for defense counsel to discuss Brown's anticipated
testimony in opening statement and his motivation for giving
that testimony with the goal of influencing the jury's first
impression of the credibility of that testimony. But where the
prosecutor had told the judge that he had yet to decide whether
to call Brown, defense counsel relied on an informed guess as to
whether Brown actually would testify. The risk of telling the
jury that Brown would testify and corroborate Richard's version
of events far exceeded the benefit of influencing the jury's
first impression of Brown if he were to testify. No competent
attorney would have taken this risk and made this choice.
Counsel's ineffective assistance, however, requires a new
trial only if it created a substantial likelihood of a
miscarriage of justice, that is, only if it was reasonably
likely to have influenced the jury's conclusion. See
Commonwealth v. Field, 477 Mass. 553, 556 (2017); Commonwealth
v. Brown, 462 Mass. 620, 630 (2012). We conclude that it was
not reasonably likely in this case. The overwhelming evidence
at trial was that Richard and the victim thought this was to be
a drug deal, but the defendant and Brown knew it was to be a
drug "rip-off" (to steal the cash), i.e., an armed robbery. The
only evidence that supported the defense theory that Richard or
the victim had brought the firearm to the drug deal to conduct 14
their own drug rip-off to steal the drugs and that the victim
was killed during a struggle over the gun came from the
defendant's description of events to Nesbitt. That self-serving
story, told to a distant cousin whose help the defendant sought
while "on the lam," is inconsistent with Richard's testimony
(and with his conduct immediately after the shooting),
inconsistent with Weiss's testimony that the defendant brought a
gun to the apartment, and inconsistent with the forensic
evidence, which suggests that this was not a contact wound fired
at close range, as one would expect if it were an accidental
shooting during a struggle for the gun. Defense counsel's
characterization of Brown's anticipated testimony was never
mentioned again during the presentation of evidence at trial or
in closing argument. In short, where the prosecutor had not
decided to call Brown as a witness and defense counsel did not
intend to, it was manifestly unreasonable for defense counsel in
opening statement to have told the jury that Brown would
characterize what happened as an armed robbery, but it
reasonably could not have influenced the jury in reaching their
verdict.
b. Promising to elicit from testifying police officers
about "how drug deals are handled." In his opening statement,
defense counsel told the jury: 15
"There's an alternative scenario that we would suggest to you that this was in fact a drug deal . . . and through the cross-examination of the police officers we suggest that we will show you how drug deals are handled. The drugs and the money are not generally in the same place at the same time. And in this circumstance that a sample of drugs was taken to the premises, a gun was carried in order to protect the individual from people he didn't know that were supposedly buying from him, that this was a drug deal gone bad during the course of which the gun was flashed, a struggle ensued, the gun went off accidentally, and [the victim] was killed."
The defendant correctly notes that, at trial, defense counsel
never did elicit during his cross-examination of the testifying
police officers "how drug deals are handled," or that "[t]he
drugs and the money are not generally in the same place at the
same time" during a typical drug deal. Nor, pragmatically,
could defense counsel have expected to elicit such testimony,
where none of the testifying police officers had substantial
experience investigating drug deals. But we need not dwell long
on this claim of ineffective assistance because, in the context
of this case, it amounts to nothing.
The Commonwealth's theory of this case, amply supported by
Richard's testimony, was that this armed robbery occurred during
what Richard and the victim intended to be a drug deal. Richard
testified that he and the victim came to the apartment to buy
drugs, and the defendant attempted to rob them of the money they
had brought to pay for the drugs. There was no need for defense
counsel to cross-examine the police officers to elicit from them 16
that this was meant to be a drug deal, because that was never in
dispute. What was disputed is whether the defendant sought to
negotiate a drug deal, as the defendant told Nesbitt in
California, or whether the defendant simply used Richard and the
victim's belief that they were going to purchase drugs from
Brown as an opportunity for an armed robbery, as Richard
testified. There is no risk that this assertion in opening
statement, or defense counsel's failure to elicit the promised
testimony, in any way influenced the jury's verdict.
c. Defense counsel's failure to visit the defendant in
jail more than six times before trial. Between the date of
arraignment and the commencement of trial on May 8, 2001,
defense counsel visited the defendant six times while he was in
jail awaiting trial: on January 12, 2000; March 23, 2000; June
17, 2000; April 26, 2001; May 1, 2001; and May 2, 2001. The
defendant also contends that he received discovery from defense
counsel that counsel and the defendant never had the opportunity
to discuss; that they did not agree about trial strategy; that
he tried to telephone defense counsel numerous times between
January 2000 and April 26, 2001, but was never able to speak
with him; and that they never engaged in any written dialogue
about the case. The defendant, however, has failed to
articulate how his defense would have been materially different
if defense counsel had visited him more often or been more 17
responsive to his attempts to contact defense counsel. At the
close of the evidence at trial, the judge asked the defendant if
he felt satisfied with defense counsel's representation of him;
the defendant answered "yes." There is nothing in the
defendant's briefs and nothing we can discern from the record
that suggests that more or better communication between the
defendant and defense counsel would have yielded anything likely
to influence the jury's verdict in this case.
2. Retroactive application of Brown. The defendant argues
that we should extend the reach of our holding in Brown to his
case, even though we limited that holding to cases tried after
the opinion was issued. In Brown, 477 Mass. at 807, we revised
our common law of murder by declaring that, "in trials that
commence[d] after the date of the opinion in [that] case,"
felony-murder would no longer be an independent theory of
liability for murder but simply an aggravating element under
G. L. c. 265, § 1, permitting a verdict of murder in the first
degree where the jury found one of the three prongs of malice
but did not find deliberate premeditation or extreme atrocity or
cruelty. In doing so, we abandoned "the fiction of constructive
malice -- that where a killing occurs in the commission of a
felony, the intent to commit the felony is sufficient alone to
establish malice." Id. at 825 (Gants, C.J., concurring). The
defendant contends that, as a matter of due process, equal 18
protection, and basic fairness, we should extend our holding in
Brown to his case, even though it was tried before our opinion
in Brown and the appeal was pending when Brown was decided. We
have declined to do so in other cases. See, e.g., Commonwealth
v. Bin, 480 Mass. 665, 681 (2018); Commonwealth v. Phap Buth,
480 Mass. 113, 120, cert. denied, 139 S. Ct. 607 (2018). We
decline to do so here.
We made clear in Brown that "[f]elony-murder is a common-
law crime"; we determine its elements. Brown, 477 Mass. at 822.
We declared that, in future trials, the element of malice would
no longer be satisfied simply by proof of intent to commit the
underlying crime: one of the three prongs of malice would have
to be proved. Id. at 807. This was not a clarification of
existing common law; it constituted a change to our common law.
Nor was it a change to our law of criminal procedure; it was a
change to our substantive criminal law. We made equally clear
that our earlier felony-murder rule, which substituted the
intent to commit the underlying felony for the malice required
for murder, was not unconstitutional. Id. at 823. Our decision
in Brown therefore did not announce a new constitutional rule.
Id.
Because Brown neither established a new Federal
constitutional rule nor a new Federal rule of criminal
procedure, the United States Supreme Court precedent on which 19
the defendant relies is inapplicable. See Griffith v. Kentucky,
479 U.S. 314, 328 (1987) (Federal Constitution requires Federal
and State courts to retroactively apply new Federal
constitutional rules of criminal procedure to direct appeals
from convictions); Commonwealth v. Waters, 400 Mass. 1006, 1007
(1987) ("Griffith does not require this court to give
retroactive application to rules that are not based on the
Federal Constitution"). Nor do Supreme Court precedents that
provide that subsequent clarifications of existing substantive
criminal law have retroactive effect apply here, because Brown
clearly involved a change in the common law of felony-murder and
not a mere clarification. See Fiore v. White, 531 U.S. 225,
228-229 (2001) (because Pennsylvania Supreme Court "clarified"
that crime of operating hazardous waste facility without permit
did not apply to someone who had permit but deviated from its
terms, defendant's conviction ran afoul of due process because
defendant had permit and therefore never violated statute). See
also Bunkley v. Florida, 538 U.S. 835, 840 (2003) ("[t]he proper
question under Fiore is not whether the law has changed," but
rather what law required at time of defendant's conviction).
Thus, where we revise our substantive common law of murder, we
are free to declare that our new substantive law shall be
applied prospectively, much like the Legislature may do when it
revises substantive criminal statutes. See Commonwealth v. 20
Dagley, 442 Mass. 713, 721 n.10 (2004), cert. denied, 544 U.S.
930 (2005) ("When announcing a new common-law rule . . . there
is no constitutional requirement that the new rule or new
interpretation be applied retroactively, and we are therefore
free to determine whether it should be applied only
prospectively"). Cf. Commonwealth v. Galvin, 466 Mass. 286, 290
(2013), quoting G. L. c. 4, § 6, Second ("a newly enacted
[penal] statute is presumptively prospective, and '[t]he repeal
of a statute shall not affect any punishment, penalty or
forfeiture incurred before the repeal takes effect'").
In fact, this case illustrates the wisdom of prospective
application of our new common law of felony-murder. The
Commonwealth chose here to proceed on only one theory of murder
in the first degree, felony-murder, which at the time of trial
did not require the jury to find one of the three prongs of
malice -- that is, that the defendant shot the victim with an
intent to kill, or with an intent to cause grievous bodily harm,
or intended to do an act that, in the circumstances known to the
defendant, a reasonable person would have known created a plain
and strong likelihood that death would result. See Model Jury
Instructions on Homicide 15-19 (1999). Our decision in Brown
would have permitted the Commonwealth to obtain a verdict of
murder in the first degree on the theory of felony-murder, but
only if the jury were to find one of the three prongs of malice. 21
See Model Jury Instructions on Homicide 59-60 (2018). If we had
applied our new common law of felony-murder retroactively, we
would have been required to order a new trial in this case
because the jury were not instructed that they had to find one
of the three prongs of malice in order to find the defendant
guilty of felony-murder in the first degree. But this would
have been unfair to the Commonwealth because, had the jury been
so instructed, it likely would have found that the defendant
acted with malice in shooting the victim, and that he did so
during the commission of an attempted armed robbery, which would
have resulted in a verdict of murder in the first degree on the
theory of felony-murder.6
3. Request for jury instruction on voluntary and
involuntary manslaughter. The defendant argues that the judge
committed prejudicial error in declining the defendant's request
that the jury be instructed on voluntary and involuntary
manslaughter. We agree that the judge erred, but we conclude
that the error was not prejudicial in the context of his other
instructions.
Although the Commonwealth proceeded solely on the theory of
felony-murder, the judge, in accordance with our guidance at the
6 The jury, had they been so instructed, might also have found the defendant guilty of murder in the first degree on the theory of deliberate premeditation. 22
time of trial, also instructed the jury regarding murder in the
second degree, setting forth the three prongs of malice.7 Where
an instruction was to be given regarding murder in the second
degree based on a finding of malice, defense counsel asked for
jury instructions regarding the lesser included offenses of
voluntary and involuntary manslaughter. "A manslaughter
instruction is required if the evidence, considered in the light
most favorable to a defendant, would permit a verdict of
manslaughter . . . ." Commonwealth v. Pina, 481 Mass. 413, 422
(2019). Here, viewing the evidence in that most favorable
light, a reasonable jury could have credited the defendant's
description of what occurred as related to Nesbitt and concluded
that the killing occurred after Richard or the victim displayed
7 In Commonwealth v. Brown, 392 Mass. 632, 645 (1984), an appeal from a conviction of murder in the first degree on the theory of felony-murder, we held that "G. L. c. 265, § 1, requires a trial judge to instruct on murder in the first and second degrees if there is evidence of murder in the first degree, even though there appears to be no hypothesis in the evidence to support a verdict of murder in the second degree." See Commonwealth v. Dickerson, 372 Mass. 783, 795-796 (1977). Where the judge had denied that defendant's request for an instruction on murder in the second degree, we exercised our authority under G. L. c. 278, § 33E, to direct the entry of a verdict of murder in the second degree. Brown, supra at 643- 644. However, in Commonwealth v. Paulding, 438 Mass. 1, 10 (2002), decided one year after the trial in the instant case, we changed course and held that a judge need not instruct the jury on murder in the second degree where the Commonwealth proceeds only on the theory of felony-murder and there is no evidence of malice that would support a verdict of murder in the second degree. 23
a gun while they were negotiating a drug deal and the victim
either was accidentally killed during the struggle or shot in a
heat of passion arising from reasonable provocation or sudden
combat. Therefore, the judge erred in declining the defendant's
request for these instructions.
Where the defendant requested such instructions and
objected to their absence, we must determine whether the error
was prejudicial. Pina, 481 Mass. at 422. "An error is not
prejudicial only if the Commonwealth can show 'with fair
assurance . . . that the judgment was not substantially swayed'
by it." Commonwealth v. Rosado, 428 Mass. 76, 79 (1998),
quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). We
conclude, with fair assurance, that the defendant suffered no
prejudice from this error.
The judge instructed the jury that, to find the defendant
guilty of murder in the first degree on the theory of felony-
murder, they must find beyond a reasonable doubt that the
defendant brought the gun to the room in the apartment where the
brothers were waiting, took it and displayed it in a threatening
way, and did so with the intent to rob Richard and the victim of
the money they had brought. The judge also instructed that, to
find the defendant guilty of murder in the second degree, they
must find that he came into the room with a gun and
intentionally pointed it at one of the brothers. The judge 24
further instructed that, to find the defendant guilty of murder
in the first or second degree, the jury must find beyond a
reasonable doubt that "there was an intentional act, that [the
defendant] shot the gun, that it wasn't an accident," and "that
he pulled the trigger intentionally."8 As a result, if the jury
had a reasonable doubt whether the events had occurred as
described by the defendant to Nesbitt (which itself is
extraordinarily unlikely), they were required to find the
defendant not guilty. In view of these instructions and the
feeble evidence supporting a finding of manslaughter, it is
plain that the defendant was not prejudiced by the failure to
instruct the jury regarding the law governing voluntary and
involuntary manslaughter.
4. Review under G. L. c. 278, § 33E. As part of our
plenary review, we have examined the record and conclude that a
8 With respect to the charge of murder in the first degree on the theory of felony-murder, the accident instruction was far more favorable to the defendant than he was entitled to under the law. See Commonwealth v. Brown, 477 Mass. 805, 831 (2017), cert. denied, 139 S. Ct. 54 (2018) (Gants, C.J., concurring) (under felony-murder rule "a defendant who participates in an armed robbery is guilty of felony-murder in the first degree if the defendant or an accomplice commits any act that results in death, even if the act is accidental and unintended"); Commonwealth v. Evans, 390 Mass. 144, 151–152 (1983) ("A defendant who kills a victim in the commission or attempted commission of a robbery, while the defendant is armed with a gun, is guilty of murder by application of the felony-murder rule. . . . The fact that, according to the defendant, the gun was discharged accidently is of no consequence"). 25
conviction of murder in the first degree is consonant with
justice. We therefore decline the defendant's request to order
a new trial or to reduce the verdict to murder in the second
degree.
We specifically address only one claim of error that was
not raised in the briefs but emerged in oral argument and was
argued by the defendant in a letter submitted under Mass. R. A.
P. 16 (l), as amended, 386 Mass. 1247 (1982): that the judge
erred in failing to give an instruction on felony-murder in the
second degree, based on the uncharged offenses of (1) conspiracy
to violate the drug laws, G. L. c. 94C, § 40; (2) unlicensed
carrying of a firearm, G. L. c. 269, § 10 (a); and (3) armed
assault with intent to rob, G. L. c. 265, § 18.
We have previously held "that the felony on which a charge
of felony-murder is premised may be uncharged, so long as the
evidence supports it." Commonwealth v. Stokes, 460 Mass. 311,
315 (2011). The defendant is correct that the evidence would
support at least the last two of the three uncharged felonies he
identifies. "But where the felony later advanced by a defendant
as the predicate for an instruction on felony-murder in the
second degree is not itself the subject of a separate
indictment, no error occurs if the trial judge does not charge
the jury on it even though there may be sufficient evidence
supporting such a charge -- at least where, as here, no party 26
requested such an instruction or even brought the issue to the
judge's attention at trial." Id. We reasoned:
"A contrary rule has an obvious potential to undermine the policy of finality of criminal convictions. It is likely that in almost every case where a defendant has been convicted of felony-murder in the first degree predicated on a felony punishable by life imprisonment, an argument can later be made that the trial evidence also supported the existence of one or more uncharged felonies not punishable by life imprisonment, and that therefore the jury should have been instructed on felony-murder in the second degree. Limiting the availability of such a claim to cases where the felony later advanced as presenting a basis for a charge of felony-murder in the second degree was the subject of a separate indictment may strike an appropriate balance. The existence of the indictment puts the Commonwealth (as well as the trial judge) on notice that at least there is a theoretical possibility of conviction of felony-murder in the second degree."
Id. at 316. Applying that reasoning here, we conclude that
there was no error. Nor do we find a substantial likelihood of
a miscarriage of justice arising from the absence of an
instruction regarding felony-murder in the second degree
premised on other felonies that were not punishable by life in
prison. The overwhelming evidence in this case was that the
defendant committed an attempted armed robbery.
Conclusion. We affirm the defendant's conviction of
felony-murder in the first degree and the denial of his motion
for a new trial.
So ordered.