The defendant was convicted of the murder in the first-degree of Cristian Giambrone on the theory of felony-murder with armed robbery as the predicate felony. The defendant was also convicted of assault and battery with a dangerous weapon, to wit, a knife, arising from his attack on Henry Young.
We reject the defendant's arguments and, after review of the entire record, conclude that there is no reason to exercise our extraordinary power pursuant to G. L. c. 278, § 33E, to reduce the murder verdict or to grant him a new trial. We affirm the defendant's convictions.
1. Background. A jury could have found the following facts. The defendant and two friends, Tashia Sneed and Quinnace Horton, admittedly "professional" shoplifters, habitually shoplifted merchandise from small stores, selling it to support their drug habits. On February 16, 2004, the defendant and the two others were engaged in shoplifting at the CVS store on Longwood Avenue in Boston. When the defendant was detected stealing toothpaste, he ran from the store, chased by Cristian Giambrone, a CVS clerk. Henry Young and Showky Lara, two other CVS employees, became aware of the situation and joined the chase. Two or three employees wore blue CVS uniform shirts with the CVS logo on the front. Giambrone was the first to catch up to the defendant and "flung" him against a wall. The employees struggled with the defendant as toothpaste fell from his coat. Lara told the defendant that they were taking him back to the CVS store because he had been shoplifting. The defendant refused to go and reached into his pocket, "flick[ed]" something and stabbed Young and then Giambrone. The latter died from his injuries.
The defense at trial was lack of identification of the defendant as the stabber. In the event the defendant were the stabber, he claimed self-defense. In addition, the defendant attacked the quality of the police investigation.
2. Armed robbery instruction. As stated, armed robbery was
The judge's instruction was proper. It conveyed to the jury that a conviction of armed robbery must be based on a conclusion that the defendant was armed with a dangerous weapon during his taking of the property or his escape from the scene.
Our decision in Commonwealth v. Mavredakis, 430 Mass. 848, 854-855 (2000), illustrates that the crime is not to be segmented as the defendant would have us do. In the Mavredakis case, the defendant and his joint venturers broke into an
Other cases have similarly refused to adopt the defendant's approach. In Commonwealth v. Rajotte, 23 Mass.App.Ct. 93 (1986), discussed with approval in Commonwealth v. Mavredakis, supra at 854-855, the defendant's theft was interrupted by a restaurant employee. After being convicted of armed robbery, the defendant argued on appeal, much as the defendant does here, that the taking was "not effected by force or threat of force" and thus was only a larceny and not a robbery. He contended that the intimidation occurred only after he was caught by the employee. Rejecting the defendant's theory, the Appeals Court held that the larceny was converted into a robbery because the assault was committed on a person with a "protective concern" for the goods taken (akin to that of the victims in the present case) who had interfered with the completion of the theft (similarly to the victims here). Id. at 94-96. See Commonwealth v. Sheppard, 404 Mass. 774, 778 (1989) ("Even if the jury believed that the defendant pushed [the victim] immediately after the defendant actually took the [property], the jury were free to draw the reasonable inference that the defendant used the force to facilitate the larceny"); Commonwealth v. Smith, 21 Mass.App.Ct. 619, 624 (1986), S.C., 400 Mass. 1002 (1987) (fact finder may look at episode "as a continuum and reject as a manufactured abstraction" idea that assault occurred after taking was completed). Cf. Commonwealth v. Goldstein, 54 Mass.App.Ct. 863, 867-870 (2002). Our appellate courts have refused to segment the crime of armed robbery; we continue to refuse to do so.
The defendant maintains, however, that "if Rogers armed
Moreover, the concept of abandonment is not applicable here. "Abandonment" is a term associated with joint venture and requires that there be "at least an appreciable interval between the alleged termination and [the commission of the crime], a detachment from the enterprise before the [crime] has become so probable that it cannot reasonably be stayed." Commonwealth v. Miranda, 458 Mass. 100, 118 (2010), quoting Commonwealth v. Cook, 419 Mass. 192, 202 (1994).
The defendant argues that he was abandoning the toothpaste, but there was no evidence of abandonment. The defendant was simply caught in the act of stealing the toothpaste and seeking to make his escape. The evidence indicates that the goods were falling from his clothing. There was no evidence that he was actively throwing anything from his person. Even if his actions could theoretically be viewed as abandonment, there must be "an appreciable interval between the alleged termination and the fatal [act.]" Commonwealth v. Dellelo, 349 Mass. 525, 529-530 (1965). In that case, we were discussing the time necessary between a robbery and a killing for the robbery to have ended and therefore to be separate from the killing. We said that
Id. The same concepts apply in this case.
3. Reasonable force to detain shoplifter. In another attack on the armed robbery conviction, the defendant alleges that the judge should not have instructed, as reprinted in the margin,
The right to detain shoplifters arises from G. L. c. 231, § 94B,
Few of our cases have addressed the application of G. L. c. 231, § 94B. See Coblyn v. Kennedy's, Inc., supra; Proulx v. Pinkerton's Nat'l Detective Agency, Inc., supra. Neither case clarifies whether physical force may ever constitute "a reasonable manner" of detention. In Coblyn v. Kennedy's, Inc., supra at 320, the elderly plaintiff was detained by a suspicious store employee who "firmly grasped" his arm. We noted that "[w]e need not decide whether the detention was effected in a reasonable manner for ... there were no reasonable grounds for believing that the plaintiff was committing larceny and, therefore, he should not have been detained at all." Id. at 323. In dicta, we observed that some features of the detention, including but not limited to "physical restraint ... imposed upon the plaintiff," could be found "to constitute an unreasonable method by which to effect detention." Id.
In Proulx v. Pinkerton's Nat'l Detective Agency, Inc., supra at 391-392, the plaintiff store employee was detained and questioned. We held that she was not "detained in an unreasonable way or for an unreasonable time." Id. at 393. In holding her detention reasonable, we noted among other factors that "[t]here
Many other States have "shopkeeper's privilege" statutes similar to G. L. c. 231, § 94B. See Annot., Construction and Effect, in False Imprisonment Action, of Statute Providing for Detention of Suspected Shoplifters, 47 A.L.R.3d 998 (1973 & Supp. 2010) (collecting cases construing these statutes). Because most, if not all, of those statutes contain the phrase "in a reasonable manner" found in G. L. c. 231, § 94B,
In general, cases in other jurisdictions suggest that force may be a component of a reasonable detention so long as the force used is itself reasonable. See Kmart Corp v. Perdue, 708 So.2d 106, 110 (Ala. 1997) (privilege applied where employee did not
The defendant argues that the Restatement (Second) of Torts supports his claim that force may not be used. He notes that the Restatement permits a merchant, faced with a suspected shoplifter, "without arresting the other, to detain him on the premises." Restatement (Second) of Torts § 120A (1965). He argues that, because "arrest" means "forcible restraint," the Restatement permits detention but not the use of physical force.
Contrary to the defendant's assertion, the Restatement supports explicitly the Commonwealth's view that reasonable force is permitted. The comments accompanying § 120A are clear:
Id. at § 120A comment h.
4. Self-defense. We have concluded above, see parts 2 and 3, supra, that the flight from the CVS store did not terminate the felony and that the CVS employees could use reasonable force to detain the defendant. In a letter submitted pursuant to Mass. R. A. P. 16 (1), as amended, 386 Mass. 1247 (1982), the defendant maintains that he was entitled to assert self-defense as a defense to a murder committed during a felony that he initiated.
Generally, in Massachusetts, one who commits an armed robbery cannot assert a claim of self-defense. See, e.g., Commonwealth v. Vives, 447 Mass. 537, 544 n.6 (2006), citing Commonwealth v. Griffith, 404 Mass. 256, 265 (1989) ("The right to claim self-defense is forfeited by one who commits armed robbery"). But see Commonwealth v. Roderick, 429 Mass. 271, 278 n.2 (1999) (where armed robbery was predicate of felony-murder conviction, instruction on self-defense "was entirely proper").
We need not resolve the issue on this record. Assuming without deciding that the defendant was entitled to an instruction on self-defense in the circumstances of this case, the judge instructed on this issue and the instruction was proper.
5. Instruction that the Commonwealth "proved the killing was unlawful." The defendant next contends that, in her instruction on involuntary manslaughter, the judge erred by instructing that "the Commonwealth proved the killing was unlawful." The defendant quotes the judge correctly. The subject instruction is reprinted in the margin.
We construe jury instructions as a whole. Isolated misstatements included in a comprehensive charge to the jury do not constitute reversible error when there is little likelihood that the jury would have misunderstood the correct import of the entire charge. See Commonwealth v. Niemic, 427 Mass. 718, 720 (1998), quoting Commonwealth v. Galford, 413 Mass. 364, 371-372 (1992), cert. denied, 506 U.S. 1065 (1993) (appellate court reviews instructions as whole, considering adequacy in light of over-all impact on jury). The judge instructed properly on the Commonwealth's burden to prove an unlawful killing nine times. Indeed, the judge twice instructed that if the Commonwealth had failed to prove "an unlawful killing" of the victim, "that's the end of [the] inquiry" "on the [murder] indictment." The one improper reference considered in the context of the instructions as a whole could not have affected the verdict. See Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 (1998). See also Commonwealth v. Grant, 418 Mass. 76, 85 (1994) ("A reasonable juror could not have ... been misled by [the] slip of the tongue" in the instruction).
In addition, the jury convicted the defendant of murder in the first degree; therefore, they did not reach the question of involuntary manslaughter. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 805 (2009) (judge's slip of tongue in instruction on murder in second degree did not create "even a remote likelihood of a miscarriage of justice" where "the jury found the defendant guilty of murder in the first degree, and therefore did not reach the question of murder in the second degree").
6. Shoplifting as lesser included offense of armed robbery. The defendant argues that the judge erred when she refused to instruct on shoplifting as a lesser included offense of armed robbery. The defendant requested such an instruction and objected when the judge refused to give it. There was no error because shoplifting is not a lesser included offense of armed robbery. A crime is not a lesser included offense of another if each requires proof of an additional element that the other does not. See
7. Closure of the court room. The defendant asserts that his right to a public trial, guaranteed by the Sixth Amendment to the United States Constitution, was violated because the court room was closed during jury selection. Such a violation, if it occurred, is a structural error not subject to harmless error analysis. Even so, we must determine whether the defendant raised the issue in a timely manner because "the right to a public trial, like other structural rights, can be waived." Commonwealth v. Cohen (No. 1), 456 Mass. 94, 105-106 (2010), quoting Commonwealth v. Edward, 75 Mass.App.Ct. 162, 173 (2009). See Mains v. Commonwealth, 433 Mass. 30, 33 n.3 (2000) ("Our cases have held that even structural error is subject to the doctrine of waiver").
A defendant claiming a violation of his right to a public trial must show that the court room was closed to the public. Some affirmative act by the court or one acting on its behalf is required. Commonwealth v. Cohen (No. 1), supra at 107-108. The defendant has not met his burden of showing either that the trial judge did anything to close the court room or that the court room was closed without the judge's knowledge. To the contrary, the only incident to which he points indicates that the judge sought to make the court room open to the public. The judge ordered that the back door of the court room remain open during jury empanelment so that the defendant's mother, and presumably other members of the public, could observe the empanelment.
Even if there were a partial closure, which has not been established on the present record, the defendant has waived this claim. See Commonwealth v. Cohen (No. 1), supra at 105-106. Having indicated his assent to the judge's remedy for the overcrowding (i.e., the opening of the back door), the defendant may not now be heard to complain of the strategy that was adopted.
8. Trial errors. a. Medical examiner's testimony. The defendant maintains that his Sixth Amendment right to confront witnesses was violated when Dr. Flomenbaum, a medical examiner who did not perform the autopsy of the victim, was permitted to testify as to cause of death. The defendant filed a motion in limine to exclude Dr. Flomenbaum's testimony on this ground, which was denied, and he objected to the testimony when it was offered. Thus, we review to determine whether there was error, and if so whether that error was harmless beyond a reasonable doubt. Commonwealth v. Durand, 457 Mass. 574, 586-588 (2010).
The testimony of Dr. Flomenbaum and the defendant's objection thereto took place after Crawford v. Washington, 541 U.S. 36 (2004) (Crawford); Commonwealth v. Gonsalves, 445 Mass. 1 (2005), cert. denied, 548 U.S. 926 (2006); and Commonwealth v. Verde, 444 Mass. 279 (2005). However, the case was tried before our decision in Commonwealth v. Nardi, 452 Mass. 379 (2008) (Nardi). In Crawford, supra at 53-54, the United States Supreme Court held that the Sixth Amendment prohibits the admission of testimonial out-of-court statements unless the declarant is unavailable to testify and the defendant had a prior
Of particular relevance to the present case, Nardi restated our case law that testifying expert witnesses may base their opinions on (1) facts personally observed; (2) facts assumed in the questions put to the expert and supported either by admitted facts or by the testimony of other witnesses already given or to be given at the trial; or (3) facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion. Nardi, supra at 388, quoting Commonwealth v. Markvart, 437 Mass. 331, 337 (2002). See Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986). We stated further, see Nardi, supra at 388-391, that a substitute medical examiner may testify to his or her own opinion concerning the victim's cause of death. A testifying medical examiner, however, may not testify on direct examination to the underlying factual findings contained in an autopsy report prepared by a different medical examiner. Nardi, supra at 391. See Commonwealth v. Avila, 454 Mass. 744, 760-762 (2009). See also Commonwealth v. Durand, supra at 583-585.
In the present case, Dr. Flomenbaum reviewed the autopsy report of Dr. Evangelista (the medical examiner who performed the autopsy), Dr. Evangelista's photographs and notes, "notes" from the emergency medical technician, the emergency room doctors'"notes," toxicology reports, and other material. Based on his review of these materials, Dr. Flomenbaum opined that the cause of death was "the stab wound to [the victim's] neck." The opinion of the cause of death was not contested at trial. It was stated as well in the death certificate which was properly admitted. In addition, there was extensive eyewitness testimony that the victim had been stabbed in the neck.
Dr. Flomenbaum based his testimony primarily on two autopsy photographs, both of which were admitted in evidence at trial.
Dr. Flomenbaum appeared as a witness, opined as an expert on the basis of information on which experts ordinarily and properly rely, and was subject to cross-examination. These aspects of his testimony are controlled by Nardi, supra (right of confrontation not violated when medical examiner who did not perform autopsy allowed to testify to his own opinion of cause of death).
However, Dr. Flomenbaum also testified on direct examination to the length and depth of the stab wound, and that the bleeding came "through the air pipe, not as a result of injury to the lung itself." These underlying factual findings (presumably from the autopsy report) should not have been admitted on direct examination. See id. at 391-394. They were not relevant, however, to any contested issues. As mentioned, the defense was lack of identification of the defendant as the stabber, self-defense (if the defendant were the stabber) and shoddy police work. Any error in admitting these factual findings was harmless.
b. CVS training video recording. The defendant maintains
c. Still surveillance video recording. The defendant complains that he was prejudiced by the admission, over his objection, of a digital video recording. He argues that the recording was comprised of a few still photographs (all concededly independently admitted) based on "assumptions that were not true (e.g., the images from the camera were not captured at a constant rate although each of the images on the [recording] were reproduced so that they appear on the screen for the same number of seconds)." This procedure made it appear "misleadingly" as if the person seen was running from the CVS, was the only person present, and was dropping or kicking something (which the Commonwealth alleged were two toothpaste boxes).
"When, as here, the demonstrative photograph is generated as a digital image or video image, the judge must determine whether the image fairly and accurately presents what it purports to be, whether it is relevant, and whether its probative value outweighs any prejudice to the other party." Renzi v. Paredes, 452 Mass. 38, 52 (2008). "Concerns regarding the completeness or production of the image go to its weight and not its admissibility." Id.
9. Review under G. L. c. 278, § 33E. Although not raised by the defendant, our review of the record reveals issues relating to the judge's instructions. The judge instructed:
The situation was a complex one; the instructions lengthy; and the judge understandably could have misspoken here. Assuming that the defendant was entitled to have his claim of self-defense go to the jury, there are two problems with the above instruction. First, after initially stating the proposition correctly, the judge then defined the Commonwealth's burden erroneously by stating that "the Commonwealth [must] ... prove either that the defendant acted in self-defense or that he used only the reasonable amount of force necessary to protect himself under the circumstances." The burden is in fact the opposite. To prevail, the Commonwealth must prove either that the defendant did not justifiably act in self-defense or that, in defending himself, he
We conclude, however, that the misstatement could not have affected the outcome. Having returned a verdict of murder in the first degree, the jury had to have rejected the theory of self-defense altogether. Had the jury believed the defendant acted in self-defense, either at an appropriate or excessive level of force, they could not have arrived at a verdict of murder in the first degree.
Second, the judge deprived the defendant of an instruction to which he was entitled,
We conclude, however, that this omission also could not have affected the outcome. The judge made it clear elsewhere in her instructions that, in order to convict the defendant of murder, the Commonwealth must prove, beyond a reasonable doubt, that the killing was unlawful.
Moreover, at the end of her charge, after consulting with the attorneys at sidebar, the judge stated:
This instruction informed the jury that the proper exercise of self-defense should result in an acquittal. Thus she explained sufficiently that, if the defendant engaged in the proper exercise of self-defense, there can be no verdict of murder. Despite the earlier misstatement, her final instructions on self-defense clarified the proper role of self-defense. See Commonwealth v. Van Winkle, 443 Mass. 230, 240-241 (2005) (judge erred in failing to instruct that Commonwealth had to prove beyond reasonable doubt that defendant did not act on reasonable provocation, but instructions as whole were adequate because elsewhere in charge judge explained properly Commonwealth's burden); Commonwealth v. Niemic, 427 Mass. 718, 720-722 (1998) (errors in instructions on adequate provocation and Commonwealth's burden did not create substantial likelihood of miscarriage of justice taking charge as whole).
We have reviewed the entire record and have considered all the issues on appeal. We conclude that there is no reason to exercise our power under G. L. c. 278, § 33E, to order a new trial or to reduce the defendant's murder conviction to a lesser degree of guilt.
10. Other conviction. As the defendant makes no independent argument concerning his conviction of assault and battery by means of a dangerous weapon, and that conviction is not subject to review pursuant to G. L. c. 278, § 33E, we affirm that conviction as well.
"The law of armed robbery does not require the Commonwealth [to] show that the instrument or the weapon was actually used. It is enough if the Commonwealth proves beyond a reasonable doubt that the defendant was actually armed with a dangerous weapon at some point during the course of the robbery. The point at which the defendant became armed is not important as long as he becomes armed at a point that directly related to the commission and completion of the robbery. Completion of the robbery not only includes the taking of the property but also includes the escape or successful completion of the robbery.
"The second element that the commonwealth must prove beyond a reasonable doubt is that the defendant either applied actual force or violence to the body of the person identified in the indictment, or by words or gestures put him in fear. In other words, that he committed an assault on that person.
"The third element that the Commonwealth must prove beyond a reasonable doubt is that the defendant took the money or other property, or the property of another with intent to steal it....
"If the Commonwealth proves beyond a reasonable doubt that the defendant armed himself with a dangerous weapon after the taking of the property and used that dangerous weapon to effectuate the taking of the property or to effectuate his escape from the scene, that would be sufficient to convert the taking of the property into an armed robbery. If, however, the defendant armed himself with a dangerous weapon after the taking of the property for a purpose unrelated to the taking or successful completion of the taking of the property, that would not be sufficient for armed robbery."