477 Mass. 805, 81 N.E.3d 737 (2017)
On the evening of October 22, 2009, the defendant rode as a passenger in a green Honda Civic driven by Ariel Hernandez through the Pawtucketville section of Lowell, accompanied by Giovanni Hill and Darien Doby.1 Hernandez suggested robbing two men walking on the street but the passengers dissuaded him.2
Shortly afterward Hernandez and Hill robbed two women at gunpoint while the defendant and Doby remained in the vehicle.3 Hernandez later exchanged his green hooded sweatshirt for a black one without a hood at a friend's house.4
The four men later gathered at the defendant's one-bedroom apartment. Hernandez hid the nine-millimeter pistol used in the earlier robbery in a kitchen cabinet above the refrigerator and searched through the stolen purses.5
At approximately 12:15 a.m. on October 23, cousins Jamal and Karon McDougal arrived with their friend Joshua Silva.6 While in the kitchen, Jamal proposed robbing two men who owed money to a friend, describing the targets as "pretty big guys" who worked in bars.7 Hernandez agreed to participate and Silva volunteered to serve as getaway driver.8
Before departing, Hernandez retrieved his pistol from the cabinet and tucked it into his waistband.9 The defendant supplied Hernandez with a black-and-red pullover hooded sweatshirt bearing a white Red Sox "B" logo after Hernandez complained that a zippered hoodie would not fully conceal his face.10 Jamal and Karon also borrowed hooded sweatshirts from the defendant.11
Jamal then asked to borrow the defendant's .380 pistol, which had been stored under the defendant's bed.12 After initial hesitation the defendant handed over the gun following assurances from Hernandez and Karon that nothing would happen to it.13
Jamal, Karon, Hernandez, and Silva drove in Silva's Toyota Camry to the Delgado brothers' townhouse.14 Jamal and Hernandez entered after a brief ruse at the door, confronted occupants including Tony Delgado, and during the ensuing struggle fatally shot both Hector and Tony Delgado.15 The defendant remained at his apartment throughout the incident.16
After the shootings Jamal and Hernandez returned to the apartment, where Jamal gave the defendant's pistol back to him and the borrowed sweatshirts were left in the living room.17
Lowell police stopped Hernandez and Hill in the green Honda Civic within an hour of the shootings and recovered Hernandez's pistol from the trunk.18 Detectives interviewed the defendant on October 24 and 25, 2009.19 He initially claimed he had purchased the .380 for protection but later admitted giving the gun to the group while knowing they intended to commit a robbery.20
The defendant was indicted on two counts of murder in the first degree and related charges.21 A Superior Court jury convicted him of two counts of felony-murder in the first degree on the theory of accomplice liability with predicate felonies of attempted armed robbery and home invasion, as well as the underlying felonies themselves.22 The defendant appealed to the Supreme Judicial Court, which granted review and considered the case under its authority pursuant to G. L. c. 278, § 33E.23
Whether the Commonwealth produced sufficient evidence to prove that the defendant knowingly participated in the predicate felonies of attempted armed robbery and home invasion as an accomplice?
To convict the defendant of felony-murder on a theory of accomplice liability, the Commonwealth was required to prove beyond a reasonable doubt that the defendant knowingly participated in the commission of one of the underlying felonies, alone or with others, with the intent required for that offense, and that the defendant knew one of his accomplices possessed a firearm.24
Yes. Under the Latimore standard the evidence must be viewed in the light most favorable to the prosecution to determine whether any rational trier of fact could find the essential elements beyond a reasonable doubt.25 The established facts show the defendant was present in his apartment when Jamal and Karon openly solicited others to rob two pretty big guys who worked in bars.26 Hernandez agreed to participate and retrieved his pistol from the defendant's kitchen cabinet.27
The defendant then supplied his own .380 pistol after initial hesitation and after receiving assurances that nothing would happen to it.28 The defendant also provided hooded sweatshirts to Hernandez, Jamal, and Karon so they could hide their faces during the robbery.29 In his police interview the defendant admitted he believed the group intended to commit a robbery when he handed over the gun.30 These specific acts of supplying the weapon and disguise materials, combined with the defendant's presence during the planning, permitted the jury to find knowing participation and shared intent beyond a reasonable doubt.31
The Commonwealth produced sufficient evidence of knowing participation in the predicate felonies.32
Whether the trial judge's instructions on intent, shared intent, and accomplice liability impermissibly shifted the burden of proof or misstated the Commonwealth's obligations?
No. The judge instructed the jury that it may determine the defendant's intent from statements, acts, or circumstances and that the jury may but need not infer that a person intended the natural and probable consequences of his acts.35 The judge further stated the jury was permitted but not required to infer the defendant's mental state from his knowledge of the circumstances and subsequent participation.36 These formulations use permissive language and therefore create only permissive inferences that do not violate due process.37 The judge also repeatedly instructed that the Commonwealth bore the burden to prove the defendant knowingly participated in the predicate offenses with the requisite shared intent, and the single slip of the tongue at the end of the instructions was isolated and cured by the overall charge.38
The instructions did not impermissibly shift the burden or misstate the Commonwealth's obligations.39
Whether the prosecutor's opening statement and closing argument contained improper statements or misstatements of the evidence?
A prosecutor may use analogies to explain the theory of the case and may draw reasonable inferences from the evidence but may not misstate the evidence in a manner that creates prejudice requiring reversal.40
No. The prosecutor employed a sports-team analogy in both opening and closing to describe the defendant as supplying the gun and hooded sweatshirts that enabled the team effort, which fairly tracked the evidence of the defendant's conduct.41 The single statement that the defendant helped plan the crime was an isolated characterization that did not alter the overall theory that the defendant supplied necessary instruments, and the statement was unlikely to have prejudiced the defendant given the strength of the properly admitted evidence.42
The prosecutor's statements did not contain improper arguments or prejudicial misstatements.43
Whether the trial judge abused her discretion by admitting evidence of a prior armed robbery and photographs showing the defendant brandishing handguns?
Evidence of prior bad acts is admissible when relevant to prove intent, knowledge, or common scheme and when the probative value is not substantially outweighed by the risk of unfair prejudice.44
No. The prior armed robbery was probative of Hernandez's intent to commit another robbery and of the defendant's shared intent when he later supplied the gun and sweatshirts, especially because the defendant himself admitted in his police interview that the earlier robbery caused him to believe the group intended to commit another armed robbery.45 The photographs, taken weeks before the shootings, established the defendant's access to the .380 pistol that was used in the home invasion and were therefore relevant to the underlying felonies; any prejudicial impact was minimal because the guns themselves were introduced in evidence.46
The trial judge did not abuse her discretion in admitting the prior-robbery evidence or the photographs.47
Whether the trial judge's voir dire question to potential jurors regarding their ability to follow instructions on aiding and abetting was improper?
A trial judge has discretion during voir dire to ask questions designed to determine whether prospective jurors can set aside personal opinions, weigh the evidence, and follow the judge's legal instructions on accomplice liability.48
No. The judge asked whether anything about the concept of aiding and abetting would prohibit a juror from listening to and applying the law as explained at the conclusion of the trial.49 The question sought to identify jurors unwilling or unable to follow instructions on joint-venture liability and did not commit any juror to a particular verdict.50 One prospective juror who expressed qualms was excused without objection, and the judge provided preliminary instructions on the presumption of innocence and the Commonwealth's burden before and during empanelment.51
The voir dire question was proper and created no substantial likelihood of a miscarriage of justice.52
Whether the common-law felony-murder rule violates article 12 of the Massachusetts Declaration of Rights?
The felony-murder rule is constitutional because it substitutes the intent to commit the underlying felony for the malice aforethought required for murder and does not relieve the Commonwealth of proving a defendant's own moral culpability.53
No. The court has consistently rejected constitutional challenges to the felony-murder rule under article 12, holding that the rule imposes liability on all participants in a common criminal enterprise when a death occurs in the course of that enterprise.54 The rule does not violate due process or the requirement of personal culpability because the intent to commit the predicate felony supplies the necessary malice element.55
The common-law felony-murder rule does not violate article 12 of the Massachusetts Declaration of Rights.56
Related opinions on this issue
Joined by Lenk, Hines, And Budd, Jj.
Chief Justice Gants agreed that the felony-murder rule is constitutional under existing precedent but wrote separately to advocate a prospective narrowing of the doctrine.57 He argued that the common-law rule rests on two principles the court has otherwise abandoned: vicarious liability for every act of an accomplice and a conclusive presumption of malice from the intent to commit an inherently dangerous felony.58 Gants concluded that future convictions for murder should require proof of one of the three prongs of actual malice rather than constructive malice derived solely from the underlying felony.59
He explained that the rule substitutes the intent to commit the felony for malice, which is an exception to fundamental principles of criminal jurisprudence.60
Joined by Lowy And Cypher, Jj.
Justice Gaziano concurred that the felony-murder rule is constitutional and defended its continued application.61 He emphasized that criminal blameworthiness rests on both mens rea and actus reus, including the harm caused by the defendant's conduct.62 Gaziano argued that abolishing the rule would prevent convictions in cases where defendants engaged in violent felonies that resulted in death and that the existing mechanism of review under G.
L. c. 278, § 33E, adequately addresses any rare disproportionate verdicts.63
He maintained that the actus reus component, including the societal harm from the felony, must be considered alongside mens rea in assessing culpability.64
Whether the murder convictions should be reduced under the court's authority pursuant to G. L. c. 278, § 33E?
Under G. L. c. 278, § 33E, the Supreme Judicial Court may reduce a conviction of murder in the first degree to a lesser degree of guilt if the court concludes that the verdict, although supported by the evidence, is not consonant with justice.
Yes. Although the evidence was sufficient to support the felony-murder convictions in the first degree, the defendant's conduct consisted solely of supplying a firearm and hooded sweatshirts while remaining at his apartment during the botched robbery.65 The established facts place the defendant on the remote outer fringes of the joint venture.66 Reducing the verdicts to murder in the second degree therefore produces results more consonant with justice than the mandatory life sentences without parole that accompany first-degree felony-murder convictions.67
The murder convictions are reduced to murder in the second degree pursuant to G. L. c. 278, § 33E.68
Related opinions on this issue
Joined by Lenk, Hines, And Budd, Jj.
Chief Justice Gants joined the reduction of the verdicts to murder in the second degree.69 He noted that under existing law the jury reached the only verdicts reasonably available, yet those verdicts were not consonant with justice given the defendant's limited role.70 Gants used the case to illustrate why the common-law doctrine should be narrowed prospectively so that future juries would receive instructions on murder in the second degree even when the predicate felony is punishable by life imprisonment.71
He stressed that the jury's correct application of current law produced an unjust outcome due to the absence of an instruction option for second-degree murder.72
Joined by Lowy And Cypher, Jj.
Justice Gaziano agreed that the verdicts should be reduced under G. L. c.
278, § 33E because the defendant's participation was limited to providing a gun and clothing.73 He maintained, however, that the reduction should be accomplished through the court's statutory authority rather than by altering the common-law felony-murder rule itself, arguing that the 33E power provides a more measured and case-specific remedy for disproportionate outcomes.74 He contended that abolishing the rule would create confusion in grading homicides and that the existing 33E mechanism suffices to address rare cases of disproportion without undermining the doctrine's application to violent felonies resulting in death.75