A Superior Court jury found the defendant guilty of three offenses: murder in the first degree based on felonymurder, armed robbery, and assault and battery by means of a dangerous weapon. On appeal, the defendant asserts the following: (1) the trial judge erred in denying his motion for a required finding of not guilty on the charge of armed robbery, because, in the circumstances of this case, as a matter of law, the use of a sneaker in the perpetration of a robbery cannot constitute the use of a dangerous weapon for purposes of armed robbery; (2) the judge erred by denying his motion for a required finding of not guilty on the charge of felony-murder with armed robbery as the underlying felony because the act that is the basis of the dangerous weapon element of armed robbery, the use of a shod foot, is the same act that caused the death; (3) the judge erred in her instructions on felony-murder by failing to include an instruction that death had to be the natural and probable consequence of the felony and by permitting the jury to infer that the circumstances involved in this case were inherently dangerous; (4) the defendant was deprived of the effective assistance of trial counsel because his counsel waived a motion to suppress an out-of-court identification of the defendant; (5) the judge erred in allowing in evidence as an excited utterance a statement made by the victim at the hospital more than one-half hour after the incident and after she had spoken with the police and medical personnel; (6) the judge erred in admitting statements of the defendant made to an informant inmate; and (7) a retrial on any homicide charge would violate the defendant's constitutional right to be free from double jeopardy. He also asks us to invoke our extraordinary power pursuant to G. L. c. 278, § 33E, to order a new trial, or to direct entry of a verdict of a lesser degree of guilt as to the murder verdict. We affirm the convictions and decline to exercise our power under G. L. c. 278, § 33E, to order a new trial, or to reduce the murder conviction to a lesser degree of guilt.
The following is a recitation of the evidence in the light most favorable to the Commonwealth. Commonwealth v. Latimore,
Cecelia Peterson, an eyewitness, assisted Lyons following the attack. Lyons told Peterson that the assailant had stomped on her stomach. Lyons was upset and experiencing pain when she said this; she was also losing sensation in her legs.
Shortly thereafter, Officer Steven Williamson of the Brockton police department arrived. Lyons told him that a young white male had attacked her. Peterson described the assailant to Officer Williamson as approximately twenty years old, five feet ten inches tall, and 150 pounds. According to her, he had black hair, a mustache, and a goatee.
Officer Williamson requested an ambulance, and Lyons reluctantly agreed to go to the hospital. At the hospital, Lyons appeared anxious and in pain. About one-half hour after the incident she explained to Dr. John Steinmetz that a young man had attacked her, trying to steal her purse, and stomped twice on her stomach. Lyons's aorta was crushed, just above her navel, and the aorta remained crushed because it was calcified with cholesterol plaque. This impaired the blood flow to her spinal cord and lower extremities. Her condition deteriorated, and gangrene began spreading in both her legs. Despite surgery to repair her damaged aorta, she died three days later. The cause of death was complications due to blunt abdominal trauma.
Four days after the attack, police found a white Pontiac Bonneville automobile parked outside an apartment complex in
Peterson worked with State Trooper Scott Berna to prepare a composite sketch of the assailant on March 4, 1996, and a second sketch four days later. She met with Trooper Berna on March 5, 1996, to review an array of photographs. Peterson identified hair in one of the photographs as being similar to the assailant's hair. The defendant's photograph was not among those shown to Peterson.
On March 10, 1996, Trooper Berna showed Peterson a series of eighteen photographs. Included was a photograph of the defendant from three years earlier. Peterson did not make an identification. The next day, Peterson reviewed eight more photographs, one of which was a photograph of the defendant taken that morning. Peterson could not positively identify the assailant, but she believed that he resembled number six and number eight. The defendant's photograph was number seven.
On March 12, 1996, Peterson saw a picture of the defendant in a newspaper that reported that he was the man arrested for the attack on Lyons. Peterson telephoned Trooper Berna. She was concerned that the police may have arrested the wrong man because she did not recognize the defendant's picture as the man she remembered as the assailant. The picture, however, was blurred and showed the defendant's profile.
Peterson met with Trooper Berna on March 13, 1996. She asked him if he had any pictures of the defendant, and he showed her about one dozen photographs of him. She did not make, nor was she asked to make, an identification of the assailant that day. The two discussed the case and Trooper Berna told Peterson that police had found the defendant's fingerprint in the Pontiac Bonneville.
On March 15, 1996, Peterson called Trooper Berna and told him that she was confident that the defendant was in fact the assailant. Peterson explained that when she saw the assailant's face on the day of the attack, he was grinning. She said that initially she looked for that same expression in the pictures Trooper Berna showed her. Once she removed that grin from
At the time of the attack, the defendant was living with his girl friend at an apartment complex in Fall River, approximately a five-minute walk from where the Pontiac Bonneville had been stolen. About 6 A.M. on March 2, 1996, the defendant stopped by the Brockton home of John Reggiani, described as the defendant's "surrogate" stepfather. (He had lived with the defendant's mother when the defendant was a child.) While there, the defendant smoked a piece of crack cocaine. He stayed for about forty-five minutes and, before leaving, mentioned that he wanted to get more crack cocaine.
The defendant returned to Reggiani's home at about 8 A.M. He told Dorothea Hustus, who lived with Reggiani, that he and a friend were involved in robberies at Shaw's supermarkets in Easton and Abington. He also said that he had stolen a car that was "real hot." On hearing this, Hustus asked the defendant to leave, but he wanted to wait a few minutes until things "calmed down." He then counted his money; he had seventeen dollars, and he asked to borrow three more from Hustus. A piece of crack cocaine costs twenty dollars. The defendant was acting nervous and repeatedly looked out the windows. The defendant had been to Hustus's home many times before and generally arrived in a stolen car. However, he did not usually appear so nervous. Before leaving, he asked Hustus to check outside for police, which she did. He then walked over to a white car parked down the street, paced back and forth for about twenty minutes while he looked around the area, and finally got into the car and drove off.
The defendant returned to Hustus's home in the white car about twenty minutes later. He told Hustus that he had gotten into an accident and needed a place to stay because the police might be looking for him. He stayed with Hustus until about 10 A.M. The following week, Hustus was taken to the Brockton police department and recognized a white car in the police garage as the car the defendant drove to her house on March 2, 1996. She identified a photograph of the Pontiac Bonneville as the car she saw at the police station.
The defendant was arrested on March 11, 1996. When he was arrested, he told the police that he probably had been at his girl friend's house in Fall River on the night of March 1, 1996. He
1. Sneakers as dangerous weapon. The defendant claims that the judge erred in denying his motion for a required finding of not guilty on the charge of armed robbery, because, as a matter of law, in the circumstances of this case, the use of a sneaker in the perpetration of a robbery cannot constitute the use of a dangerous weapon for purposes of armed robbery. We reject the defendant's claim that there was insufficient evidence to establish that his sneakers had been employed as a dangerous weapon.
Armed robbery is an aggravated form of robbery and requires that the defendant be armed with a dangerous weapon. Commonwealth v. Howard, 386 Mass. 607, 611 (1982). Our statutes do not define the term "dangerous weapon," but we have consistently said that there are things that are dangerous per se and those that are dangerous as used. Commonwealth v. Appleby, 380 Mass. 296, 303 (1980), citing Commonwealth v. Farrell, 322 Mass. 606, 615 (1948). See Commonwealth v. Wolinski, 431 Mass. 228, 236 & n.13 (2000). In the former class are those "instrumentalit[ies] designed and constructed to produce death or great bodily harm." Commonwealth v. Appleby, supra. The latter class consists of those things that become dangerous weapons because they are "used in a dangerous fashion." Id. at 304. "The essential question, when an object which is not dangerous per se [such as sneakers] is alleged to be a dangerous weapon ... [is] `whether the object, as used by the defendant, is capable of producing serious bodily harm.'" Commonwealth v. Mercado, 24 Mass.App.Ct. 391, 397 (1987), quoting Commonwealth v. Marrero, 19 Mass.App.Ct. 921, 922 (1984). Accord Commonwealth v. Sexton, 425 Mass. 146, 149 (1997), and cases cited. "Resolution of these questions is invariably for the fact finder ... and involves not only consideration of any evidence as to the nature and specific features of the object but also attention to the circumstances surrounding the assault and the use of the object, and the manner in which it was handled or controlled" (citations omitted). Commonwealth v. Marrero, supra.
We have also said that, in a robbery, "whether the weapon is actually used to inflict harm is largely irrelevant. Rather ... the relevant point is the `objectively menacing conduct of the defendant ... [producing] the fear of harm which it was intended to produce ....'" Commonwealth v. Tarrant, 367 Mass. 411, 415 (1975), quoting Commonwealth v. Slaney, 345 Mass. 135, 140 (1962). "[T]he proper inquiry is whether the instrumentality is such as to present an objective threat of danger to a person of reasonable and average sensibility." Commonwealth v. Tarrant, supra at 416. In sum, the issue, where a neutral object is involved, turns on whether the instrumentality under the control of the perpetrator has the apparent ability to inflict harm, whether the victim reasonably so perceived it, and whether the perpetrator by use of the instrumentality intended to elicit fear in order to further the robbery. Here, the defendant's sneakers, when used to stomp on the victim's stomach, had the apparent ability to inflict harm; they were
The defendant argues that, if the victim had not suffered from severe atherosclerosis (i.e., hardening of the arteries), her aorta would have returned to normal after the attack instead of collapsing and restricting the blood flow to her lower extremities and eventually causing her death. Thus, he argues, his use of the sneakers would not have resulted in serious bodily harm to a healthy individual.
The victim's physical condition is relevant to the determination whether the sneakers were used as a dangerous weapon, but not relevant in the manner suggested by the defendant. A dangerous weapon is one capable of doing serious damage to the victim of the assault. See United States v. Bey, 667 F.2d 7, 11 (5th Cir. 1982) (factors relevant to determination whether object is dangerous weapon include circumstances under which object is used and size and condition of assaulting and assaulted persons); State v. Riddick, 315 N.C. 749, 760 (1986), quoting State v. Cawley, 244 N.C. 701, 707 (1956) ("The deadly character of the weapon depends sometimes more upon the manner of its use and the condition of the person assaulted, than upon the intrinsic character of the weapon itself"). These criteria are consistent with the obvious public interest in deterring violence. Cf. Commonwealth v. Perry, 6 Mass.App.Ct. 531, 535 (1978) (evidence sufficient to warrant finding that toy gun was "dangerous weapon" within meaning of G. L. c. 265, § 18A [armed assault in dwelling with intent to commit felony]). Using sneakers to stomp on the stomach of an elderly woman is using them in a manner that renders them capable of inflicting serious injury. See Commonwealth v. Fernandez, supra at 315-316.
A victim's condition may include facts of which an assailant
The defendant also claims that the use of the weapon must demonstrate an intent on the part of the perpetrator to employ the instrumentality as a weapon. Although the judge, in an abundance of caution, added this requirement to her instructions concerning a dangerous weapon, our cases have never imposed such a requirement. See Commonwealth v. Appleby, 380 Mass. 296, 308 (1980); Commonwealth v. Connolly, 49 Mass.App.Ct. 424, 425 (2000). This additional instruction to which the Commonwealth objected simply placed a further and unrequired burden on the Commonwealth.
2. The defendant next argues that, if we do conclude that the use of the sneakers in this situation may constitute an armed
3. Jury instructions. a. The defendant claims that the judge erred by denying his motion for a required finding of not guilty on the charge of felony murder with armed robbery as the underlying felony because the act that was the basis of the dangerous weapon element of armed robbery, the use of a shod foot, is the same act that caused the victim's death. In essence, the defendant's contention is that the armed robbery was not sufficiently independent of the homicide to support a conviction
b. The defendant claims error in the judge's instructions concerning the felony-murder rule. She instructed the following:
The defendant did not object to this formulation. Thus, we review in order to determine whether, if there were any error, the judge's instruction created a substantial likelihood of a miscarriage of justice. Commonwealth v. Casey, 428 Mass. 867, 868 (1999).
The defendant maintains that the judge erred in failing to instruct the jury that the death must be a natural and probable consequence of the defendant's actions. We have recently upheld the use of language similar to that used by the judge in this case. See Commonwealth v. Pike, 431 Mass. 212, 216 (2000) (the jury were properly instructed that, before they could convict of murder, they must conclude that `the action of [the defendant] was the proximate cause of [the victim's] death ... a cause, which, in natural continuous sequence, produces a death, and
We note that the Commonwealth is incorrect when it suggests that "natural and probable consequence" is the equivalent of "proximate cause." While the defendant's felonious undertaking may be a proximate cause of the death, death may not necessarily be a probable consequence of the defendant's act. However, as we said in Commonwealth v. Wade, supra at 151, quoting Commonwealth v. Chase, 42 Mass.App.Ct. 749, 754 (1997): "Because the judge made clear `the necessary causative relation between the defendant's act and the victim's death,'... there is no substantial likelihood of a miscarriage of justice created by the judge's failure to include the specific phrase `natural and probable consequence.'"
4. Allegation of ineffective assistance of counsel. The defendant claims that he was deprived of the effective assistance of counsel because his trial counsel waived a motion to suppress challenging the eventual out-of-court identification of the defendant by Cecelia Peterson. The record confirms that trial counsel and the defendant considered this issue for a "few months" and that, after an explanation of the strategic ramifications, the defendant "expressed faith in [his trial counsel's] judgment" whether to waive the suppression motion. During the consideration of the issue of waiver of the motion to suppress the identification, the judge expressly noted the experience and "trial ability" of defense counsel. Nothing in the record indicates that the decision to waive the motion to suppress was made without great thought and consideration. The decision was also clearly based on the advice of counsel with considerable experience. The defendant cannot be relieved at this juncture of his part in this strategic decision. Commonwealth v. Finstein, 426 Mass. 200, 203-204 (1997) (when defendant and counsel
Assuming that the identification was suggestive and ignoring defendant's apparent acquiescence in the decision not to pursue the motion to suppress, the record does not support the proposition that waiving the motion to suppress constituted ineffective assistance. On the contrary, it appears that there was a sound tactical basis for the decision. The evidence against the defendant, even without Peterson's identification, was extremely strong. The defendant's fingerprint was found in the stolen car identified as the one used by the perpetrator. He had been in the general area just prior to the robbery and was described as anxious to obtain money to purchase more crack cocaine. He was in the area again shortly after the robbery and was in an unusually nervous state. Moreover, he admitted to committing the murder to an inmate in a house of correction. Finally, even if Peterson's eventual identification of the defendant had been suppressed, her initial description of him (which occurred long before any hint of police suggestiveness) would have been admissible; it very accurately described the defendant, at least as to height, weight, hair color, and facial hair. Similarly, the composites Peterson prepared were not the subject of suppression motions and examination of them reveals that they resembled the defendant.
A successful motion to suppress Peterson's identification would not seriously have weakened the Commonwealth's case. Permitting the identification testimony and then attacking the strength and circumstances of the identification provided the defense with a basis on which to attack the police procedure. The defendant argued that his arrest and prosecution were the result of a police rush to judgment in a highly publicized murder case in which the police were under pressure to make an arrest. Peterson's identification, and the police conduct that led to that identification, were used to illustrate that rush to judgment. The defendant could impeach Peterson's identification in an effort to develop enough question on that issue that might create a reasonable doubt about the entire case. Indeed, a large segment of the defendant's opening statement and closing argument were devoted to that precise point. In short, Peterson's identification was weak and provided the defense with an issue
5. Spontaneous exclamation. The defendant contends that the judge erred in admitting as a spontaneous exclamation the victim's statement to the doctor at the hospital made approximately one-half hour after the incident. The doctor testified that the victim's response to his inquiry about "what [had] happened" to cause her injuries was that the perpetrator had stomped "twice" on her abdomen. The defendant objected to this testimony. The defendant claims that the statement is excluded from the spontaneous exclamation exception to the hearsay rule because it was made too long after the exciting event and after the victim had already spoken to other people, including the police.
"A statement made under the impulse of excitement or shock is admissible if its utterance was spontaneous to a degree that reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize, or explain the underlying event." P.J. Liacos, Massachusetts Evidence § 8.16, at 551 (7th ed. 1999); Commonwealth v. Snell, 428 Mass. 766, 777, cert. denied, 527 U.S. 1010 (1999). Although the time elapsed between the occurrence and the statement is important, the statement need not be strictly contemporaneous with the exciting cause to be admissible, provided that the underlying event has not lost its sway or been dissipated and the victim has not been influenced by contemplation or other factors. Commonwealth v. DiMonte, 427 Mass. 233, 239 (1998). Commonwealth v. Grant, 418 Mass. 76, 80-82 (1994) (statements of shooting victim admissible where due to circumstances of shooting and provision of medical treatment she had been nearly hysterical from time of shooting to her police interview one hour later). In Commonwealth v. DiMonte, supra at 240, we noted that the interval of time between the incident and the facsimile message (at least eight and one-half hours and perhaps as long as eleven hours after the presumed time of the
Here, the statement was made approximately one-half hour after the robbery while the victim remained in pain and emotional distress. She was an elderly woman who had suffered a vicious assault, her aorta had been crushed, and she was losing sensation in her legs. She was clearly terrified (she had not even wanted to give her name or address for fear of further harm).
6. Statements of inmate. The defendant next claims that Michael Dubis was acting as an agent of the police when he obtained inculpatory statements from the defendant and that these statements should not have been admitted. Dubis, housed in the Plymouth County house of correction with the defendant, informed a State trooper that the defendant had admitted to the
Under the Sixth Amendment, the Commonwealth may not "deliberately elicit" statements from the defendant in the absence of his counsel, once formal adversary proceedings have begun. See Massiah v. United States, 377 U.S. 201, 206 (1964). Evidence deliberately elicited in violation of that proscription must be suppressed. See Maine v. Moulton, 474 U.S. 159, 172-176 (1985). This prohibition applies to informants acting as government agents as well as to police officers. Commonwealth v. Reynolds, 429 Mass. 388, 393 (1999). "An informant `who has not entered into any agreement with the government, and who reports incriminating evidence to police out of conscience or even "an unencouraged hope to curry favor" is not acting as a government agent.'" Id., quoting Commonwealth v. Harmon, 410 Mass. 425, 428 (1991). "If nothing is `offered to or asked of the informant, his actions will not be attributed to the Commonwealth." Commonwealth v. Reynolds, supra, citing Commonwealth v. Rancourt, 399 Mass. 269, 274 (1987).
When Dubis first met with a State trooper, he indicated a desire to be transferred from the Plymouth County house of correction to the facility on Martha's Vineyard. The trooper did not promise him anything, but merely said she "would take his information and ... present it to the district attorney's office."
There was no evidence that anything was offered to or asked of Dubis, or even any evidence that the police sought any further information from him; the most that can be said is that the government indicated that his request for a transfer would be considered. Indeed, after the first conversation with Dubis in which he reported that the defendant had already confessed to the murder it would seem that no more was needed.
7. Relief pursuant to G. L. c. 278, § 33E. We have considered the entire record pursuant to our obligation under G. L. c. 278, § 33E. There is no reason to exercise our authority to reduce the jury's murder verdict or to order a new trial. The defendant