Commonwealth v. Melendez

692 N.E.2d 61, 427 Mass. 214, 1998 Mass. LEXIS 163
CourtMassachusetts Supreme Judicial Court
DecidedApril 10, 1998
StatusPublished
Cited by12 cases

This text of 692 N.E.2d 61 (Commonwealth v. Melendez) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Melendez, 692 N.E.2d 61, 427 Mass. 214, 1998 Mass. LEXIS 163 (Mass. 1998).

Opinion

Wilkins, C.J.

The defendant appeals from convictions of murder in the first degree on the theory of felony-murder and of armed robbery and from the denial of his motion for a new trial. We affirm the convictions and the denial of his motion for a new trial. The defendant is not entitled to relief pursuant to G. L. c. 278, § 33E.

[215]*215The jury could have found the following. Late in the afternoon of March 4, 1994, the defendant and four other men decided to rob a “drug house” located in a second-floor apartment at 23 Dane Street in Lowell. Each had been a solicitor of business for that cocaine-selling enterprise. The defendant was armed with a knife. When the victim opened the door of the apartment part way in response to a knock, the defendant kicked the door in. He struggled with the victim and held a knife to his neck. Two other intruders fought with the only other occupant of the apartment. The remaining intruders searched the apartment for drugs and took some cocaine. The defendant stabbed the victim in the left calf and shouted, “Let’s go. I stabbed him.” The victim bled to death because the wound had severed his left posterior tibial artery.

One of the five men, Alexis Jiminez, admitted his involvement to the police and identified the defendant as the intruder who had stabbed the victim. The defendant, however, introduced evidence that another man, Jimmy Rodriguez, had admitted, had even boasted, that he had stabbed the victim.

There is no doubt that an intruder stabbed the victim with a knife during the robbery of the Dane Street apartment. The jury concluded that the defendant had participated in the intrusion. The question remained for the jury whether the evidence showed beyond a reasonable doubt that the defendant was guilty of felony-murder. If the jury were to find that the defendant himself stabbed the victim, guilt of felony-murder would unquestionably be established. We conclude that the judge’s instruction allowed the jury to find felony-murder only if they found that the defendant was the assailant. The defendant vigorously contests this conclusion and most particularly, based on his motion for a new trial, challenges portions of the judge’s supplemental jury instructions, to which he did not object at trial. The question, therefore, is whether any error in the supplemental jury instructions created a substantial likelihood of a miscarriage of justice. We devote most of our discussion to this issue.

1. The defendant’s principal contention is that the judge permitted the jury to convict him of felony-murder on the theory of joint venture in the commission of an armed robbery, during which the victim was killed, without effectively advising the jury that they had to find that, if a coventurer killed the victim, the defendant knew the coventurer was armed.

It is, of course, correct that joint venture guilt for the com[216]*216mission of a crime involving the use of a dangerous weapon may not be imposed on a defendant unless he knew that one of his companions was armed. See Commonwealth v. Claudio, 418 Mass. 103, 111 (1994), and cases cited. We agree with the defendant that the omission of the knowledge element in instructing on such a crime would require a new trial, even (as here) in the absence of an objection. See Commonwealth v. Watson, 388 Mass. 536, 546 (1983), S.C., 393 Mass. 297 (1984). Cf. Commonwealth v. Thomas, 401 Mass. 109, 117-118 (1987); Commonwealth v. Lennon, 399 Mass. 443, 447-449 (1987).

The defendant relies on what he asserts is a deficient written instruction given in response to a jury question. To assess the merits of that argument we must first set forth what the judge instructed the jury before they began their deliberations, instructions that the defendant does not challenge. The judge first defined what the jury would have to find to convict the defendant of armed robbery: (1) the defendant was armed with a dangerous weapon at the time of the crime; (2) the defendant assaulted the victim; (3) the defendant or a joint venturer took property from the control of the victim; and (4) did so with the intent to steal. This instruction referred to joint venture in the stealing of property (items [3] and [4] above), but it did not do so as to assault and the possession of a dangerous weapon (items [1] and [2] above).

The judge then instructed the jury on the principles of joint venture as applied to armed robbery, stating that the defendant had to be armed or know that a coventurer was armed with a dangerous weapon and had to assist the principal in the commission of the crime while sharing the mental state required for that crime.

After defining the elements of the crime of armed assault in a dwelling (as to which the jury returned a verdict of not guilty), the judge instructed the jury on first degree felony-murder. He told the jury that the Commonwealth had to prove that “the defendant committed an unlawful killing,” while engaged, by himself or with others, in committing or attempting to commit a crime punishable by life in prison that was either inherently dangerous to human life or committed with conscious disregard for the risk to human life. He added that the Commonwealth had to prove that the defendant unlawfully killed the victim while committing or attempting to commit either of the felonies charged. These instructions unambiguously told the jury that the [217]*217defendant could be found guilty of murder only if he himself killed the victim.

On the day after the jury received the case, they asked for “a written description of joint venture” and an explanation of the charge for armed robbery: “does the charge say [the defendant] was the one armed with the knife during the robbery[?]” After discussion and with the concurrence of the prosecutor and defense counsel,1 the judge read and then delivered to the jury in writing a three-element definition of joint venture, which is set forth in the margin.2 No one suggested the addition of the requirement that a defendant must have known that a coventurer was armed in order to be convicted of armed robbery as a coventurer. That a coventurer had been armed was not the theory on which the judge had instucted the jury on felony-murder with armed robbery as the underlying felony. Also, the defendant could be guilty of armed robbery, as the judge instructed, if he was the coventurer who was armed. The judge’s response left unanswered, at least directly, the jury’s question whether the armed robbery charge said that the defendant was the one armed with the knife during the robbery.

Later that day, the transcript does not say when, the jury returned and pressed the joint venture issue again. They asked, “does joint venture apply to the armed robbery and assault charges[?] Also, does joint venture apply to [the] first-degree murder charge[?]” The judge and counsel agreed that the jury should be told that joint venture applied to the charge of armed robbery but not to the charge of armed assault in a dwelling. Defense counsel argued that the jury should be told that joint venture did not apply to the murder charge. After discussion, the judge instructed the jury as follows on the murder charge:

“Joint venture only applies to the felony-murder charge [218]*218if you are of the opinion following your review of the .

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Bluebook (online)
692 N.E.2d 61, 427 Mass. 214, 1998 Mass. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-melendez-mass-1998.