Commonwealth v. Spinucci , 472 Mass. 872 ( 2015 )

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SJC-10018
COMMONWEALTH vs. JOSEPH SPINUCCI.
Middlesex. April 10, 2015. - September 29, 2015.
Present: Gants, C.J., Botsford, Duffly, Lenk, & Hines, JJ.
Homicide. Assault and Battery by Means of a Dangerous Weapon.
Practice, Criminal, Instructions to jury, Hearsay, Capital
case. Malice. Evidence, Joint venturer, Hearsay. Joint
Enterprise. Dangerous Weapon.
Indictments found and returned in the Superior Court
Department on September 9, 2004.
The cases were tried before Paul A. Chernoff, J., and a
motion for postconviction relief was heard by him.
Joseph A. Hanofee for the defendant.
Fawn D. Balliro Andersen, Assistant District Attorney, for
the Commonwealth.
BOTSFORD, J. In June, 2006, a Middlesex County jury found
the defendant guilty of the murder in the first degree of Ryan
Sullivan on the theory of extreme atrocity or cruelty; he also
was found guilty of four related offenses involving two other
2
victims, William Tighe and Jules Stevens.1 He appeals from these
convictions and also appeals from the denial of his posttrial
motion for relief. He argues that the trial judge erred by
declining to instruct the jury on manslaughter on a provocation
theory; denying his motion for a new trial on the ground that a
manslaughter instruction on this theory clearly was required; in
connection with the murder charge, failing to instruct the jury
that before they could infer malice from the intentional use of
a dangerous weapon on the part of the defendant as a joint
venturer with Van Gustave (see note 1, supra), the jury must
find that the defendant knew Gustave was armed with a knife;
allowing the jury to consider hearsay evidence to establish the
defendant's knowledge that his alleged joint venturer Gustave
possessed a knife; and denying the defendant's motion for a
required finding of not guilty on the two charges relating to
the victim Stevens. He also claims that he is entitled to
relief under G. L. c. 278, § 33E. We affirm the defendant's
convictions and decline to grant relief pursuant to c. 278,
§ 33E.
Background. 1. Facts. We summarize the facts the jury
1
The defendant's codefendant, Van Gustave, was not tried
together with the defendant. The Commonwealth's theory at trial
was that the defendant and Gustave committed all of the crimes
charged as participants in a joint venture, although the
Commonwealth argued that the roles each played -- whether
"principal" or "joint venturer" or both -- differed in relation
to each crime.
3
could have found, reserving certain details for later discussion
in connection with the issues raised. On the night of July 1,
2004, the city of Somerville put on a fireworks display in Trum
Field. The defendant, Gustave, and their respective girl
friends, Claudine Dyer and Danielle Leblanc, met before the
fireworks and went together to the event. All four were
drinking before and during the fireworks display; Gustave and
Leblanc also had taken a number of Klonopin pills. As they were
walking together toward the fireworks, Leblanc asked Gustave if
she could hold his knife in case they ran into "anybody that I
had problems with." Gustave answered, "No." Dyer similarly
asked the defendant whether he had a knife and whether she could
hold it; the defendant also answered, "No." The defendant heard
the interchange between Gustave and Leblanc.
The foursome watched the fireworks from a garage roof on
Albion Street, where they drank beer and smoked marijuana; the
defendant and Dyer each drank approximately six beers. After
the fireworks were over, the four began to walk on Cedar Street.
William Tighe came running down the street from the bicycle path
near them, and Leblanc confronted him with a statement or
question about her brother and drugs. A heated dispute between
Leblanc and Tighe ensued, in the course of which Tighe came up
very close to Leblanc, shouting and threatening her, Dyer then
approached Tighe and punched him in the face, and Tighe
4
responded by pushing Dyer down against a fence. As this
confrontation was taking place, Sullivan and Stevens came
walking down the street and were standing behind Tighe, whom
they knew through Tighe's younger brother. Neither Sullivan nor
Stevens carried a weapon, and neither said anything or joined
the dispute. After Tighe pushed Dyer, the defendant and Gustave
began to approach him, and they both took out their knives;
Tighe did not have a weapon. Tighe began to run down Warwick
Street, and told Stevens and Sullivan to run; Gustave and the
defendant ran after Tighe in pursuit. Tighe stumbled as he ran;
the defendant caught up to him, and stabbed him with a knife in
the back, inflicting a superficial wound. Tighe got up and
continued to run. The defendant and Gustave ran toward Stevens
and Sullivan. Gustave grabbed Stevens by the waist and stabbed
him in the side; Stevens fell to the ground. The defendant did
not attack Stevens, but connected with Sullivan. At this point,
the entire group was on Warwick Street. The defendant stood and
then crouched over Sullivan, with his arm repeatedly stabbing
him in the stomach area. Gustave then joined the defendant in
stabbing Sullivan; Sullivan appeared to be fighting against
them. Leblanc kicked Sullivan a few times in the head as he lay
on the ground, and Dyer also may have kicked him.
As these events were unfolding on Warwick Street, Michael
McCormack, Tighe's stepfather, who was in the backyard of his
5
house on Warwick Street, heard a young male voice say, "Get off
me. Leave me alone," and came running out of his driveway. He
saw the defendant and Gustave bending over Sullivan and Stevens,
who were both lying on the ground. McCormack ran toward the
defendant and Gustave, swearing at them, and "bowled them over."
The defendant and Gustave ran away, as did Dyer and Leblanc.
As they ran, Dyer stopped and asked Gustave and the
defendant why "that kid" was bleeding, and Gustave responded,
"Because we just stabbed them. We just stabbed them." The
defendant said, three times, "I'm on probation." He also said,
"I can't believe this." Dyer was running a little behind the
defendant, and as they ran, a resident who was out on a porch
heard the defendant say, "Hurry the fuck up. I just stabbed
three people, three guys, and I'm going to jail for three
years." The defendant, Gustave, Dyer, and Leblanc ultimately
ended up at Leblanc's house in Somerville.
In the meantime, McCormack and his wife, Elizabeth
McCormack, who is Tighe's mother, tried to tend to the two prone
victims; each recognized both Sullivan and Stevens. A telephone
call was made to 911. Sullivan and Stevens were taken to the
hospital. Sullivan died within one hour, having received at
least seven stab wounds; he was sixteen years of age. Stevens
lost his kidney and spent thirty days in the hospital; he was
6
seventeen years of age.2
2. Procedural history. On September 9, 2004, a Middlesex
County grand jury returned indictments against the defendant and
Gustave, charging each of them with murder in the first degree
of Sullivan (count one); armed assault with intent to murder
Stevens and Tighe (counts two and three); assault and battery of
Stevens by means of a dangerous weapon, causing serious bodily
injury (count four); and assault and battery of Tighe by means
of a dangerous weapon (count five). The defendant's case was
severed from Gustave's before trial. See note 5, infra. The
jury found the defendant guilty of murder in the first degree of
Sullivan on the theory of extreme atrocity or cruelty, as well
as on counts four and five, charging assault and battery by
means of a dangerous weapon of Stevens and Tighe, respectively.3
On the charges of armed assault with intent to murder Stevens
and Tighe, the jury convicted the defendant of the lesser
included offense of assault by means of a dangerous weapon.4 The
2
The defendant and Gustave were in their mid-twenties.
3
The jury did not find the defendant guilty of deliberately
premeditated murder.
4
The defendant was sentenced to life imprisonment without
parole on the murder indictment; a term of from nine to ten
years on count four to be served concurrently with the life
sentence; and, on count five, a term of from seven to eight
years to be served concurrently with the life sentence and from
and after the sentence on count four. Counts two and three were
placed on file with the defendant's consent.
7
defendant filed a timely appeal in this court.5
In November, 2007, the defendant filed, pro se, his
posttrial motion in the Superior Court.6 Thereafter, the
defendant's appeal to this court was stayed while the defendant
pursued his posttrial motion. The trial judge heard the motion,
taking evidence on the defendant's claim of ineffective
assistance of counsel. After that evidentiary hearing, the
judge denied the defendant's posttrial motion. The defendant's
appeal from the denial of that motion has been consolidated with
his direct appeal of his convictions.
Discussion. 1. Manslaughter instruction. The defendant
argues that the judge committed reversible error in declining to
instruct the jury on voluntary manslaughter as a lesser included
offense of the murder charge. He claims that, as the judge
"found" in ruling on the defendant's motion for a new trial,
5
The parties assert that, some months after the defendant's
trial and convictions, Gustave pleaded guilty to murder in the
second degree and to the other charges against him.
6
The motion is entitled, "motion for required finding of
not guilty, or guilty of a lesser included offense, or lesser
degree of guilt pursuant to [Mass. R. Crim. P.] 25 (b) (2)[, 378
Mass. 896 (1979),] and reversal of the imposition of sentence of
first degree life pursuant to [Mass. R. Crim. P.] 28[, 378 Mass.
898 (1979)]" (posttrial motion). The trial judge treated the
defendant's posttrial motion as a combined motion for a required
finding of not guilty under Mass. R. Crim. P. 25 (b), and a
motion for a new trial under Mass. R. Crim. P. 30, as appearing
in 435 Mass. 1501 (2001). We consider the substance of the
posttrial motion in the same manner.
8
there was evidence that Sullivan had jumped on the defendant's
back and the defendant pushed him off.7 He then asserts that
this evidence would permit the jury to find that the defendant,
in stabbing Sullivan thereafter, was acting in a heat of passion
on reasonable provocation or induced by sudden combat. We
disagree.8
The defendant is correct that if any view of the evidence
7
The defendant contends that the judge found as a fact that
Danielle Leblanc saw Ryan Sullivan jump on the defendant's back.
The judge made no such finding. In his posttrial ruling, the
judge summarized and discussed Leblanc's trial testimony, and
described Leblanc as having testified that she saw "a third man"
jump on Spinucci's back. The judge referred to Leblanc's
"testimony that she saw Sullivan jump on Spinucci's back before
Spinucci thr[e]w him off" (emphasis added). However, in her
testimony, Leblanc never identified the man. Nor could the
judge have made a finding that Leblanc saw Sullivan jump on the
defendant's back, given that at the evidentiary hearing held on
the defendant's posttrial motion, the only person who was sworn
and testified as a witness was the defendant's trial counsel,
whose testimony did not refer at any point to Leblanc's alleged
observation.
8
During the charge conference at trial, the judge rejected
the defendant's request for a manslaughter instruction, stating
that he did not think the evidence supported such an
instruction. In making the request for the instruction,
however, the defendant's counsel did not mention Leblanc's
testimony about seeing a person jump on the defendant's back;
counsel focused only on the defendant's alleged heat of passion
caused by William Tighe's attack on the defendant's girl friend,
Claudine Dyer. In his ruling on the defendant's posttrial
motion, the judge concluded that no manslaughter instruction was
called for because the physical contact between the defendant
and Sullivan as described by Leblanc was not sufficient to
warrant an instruction, even if the contact had been initiated
by Sullivan. We conclude that an instruction on voluntary
manslaughter was not warranted but for different reasons.
9
would permit a finding of voluntary manslaughter, an instruction
on this lesser offense must be given. See, e.g., Commonwealth
v. Garabedian, 399 Mass. 304, 313 (1987). It is also the case
that such an instruction cannot be refused even if the evidence
on which the claim for a manslaughter instruction is based is
not "of a character to inspire belief" (citation omitted). See
id. But an instruction on voluntary manslaughter is only
warranted "if there is evidence of provocation deemed adequate
in law to cause the accused to lose his self-control in the heat
of passion, and if the killing followed the provocation before
sufficient time had elapsed for the accused's temper to cool."
Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006), quoting
Commonwealth v. Andrade, 422 Mass. 236, 237 (1996). The jury
also must be able to infer from the evidence "that a reasonable
person would have become sufficiently provoked and that, in
fact, the defendant was provoked," and that "there is a causal
connection between the provocation, the heat of passion, and the
killing" (quotations and citations omitted). Garabedian, supra.The defendant does not contend that Leblanc identified the
person she saw jump on the defendant's back, but argues that by
process of elimination, the unidentified person had to have been
Sullivan, because Leblanc identified the person as a male and
stated that the male was not McCormack; the person was not
Tighe, because Tighe ran back to his home after being stabbed by
10
the defendant; and the person was not Stevens because, the jury
could find, Gustave previously had "stabbed and disabled"
Stevens. To this, the defendant adds that he already was upset
by Tighe's attack on his girl friend that had taken place only
seconds before, and that if the jury were to find that the
defendant had attacked Sullivan,9 Sullivan's physical assault of
the defendant independently provoked his emotions so that when
the defendant attacked Sullivan, he was acting in the heat of
passion due to provocation or sudden combat. See Commonwealth
v. Hinds, 457 Mass. 83, 90-91 (2010), quoting Commonwealth v.
Ruiz, 442 Mass. 826, 838-839 (2004) ("provocation must come from
the victim").
The defendant's argument is defeated by an absence of
evidentiary support. The evidence from which the jury could
find that the defendant stabbed Sullivan came from three
witnesses: Dyer, McCormack, and Stevens. Each of the three
testified to seeing the defendant standing or crouching next to
or over Sullivan's body, inferably engaged in stabbing him.10
9
At trial, the defendant's theory of the case was that the
defendant stabbed Tighe, but played no role in Gustave's attack
on Stevens or Sullivan -- that Gustave was acting entirely on
his own.
10
Claudine Dyer testified that she saw the defendant and
Gustave standing next to a person lying on the ground and
repeatedly moving their hands downward toward the body --
testimony that permits the inference that the defendant and
Gustave were engaged in stabbing the person -- but she did not
11
But none of them testified to seeing anyone jump on the
defendant's back or indeed interact physically with the
defendant before each saw the defendant standing over and
stabbing Sullivan. Leblanc was the sole source of evidence
concerning someone jumping on the defendant's back. She
testified that she saw the person jump on the defendant's back
and saw the defendant push the person off. At no point did she
testify to seeing any further interactions between the defendant
and the person he had pushed off his back. Rather, all she
stated was that she had observed the person jump on the
defendant's back either while or soon after she kicked the body
of a male11 lying on the ground on Warwick Street, and that this
incident had happened around the time that she began to run down
Warwick Street away from the body on the ground and she saw
McCormack running on Warwick Street toward her.12
identify the person as Sullivan. McCormack and Stevens both
identified the defendant as the person they saw standing over
and, inferably, stabbing Sullivan.
11
Leblanc did not identify the male whom she saw lying on
the street.
12
Leblanc's testimony on direct examination suggested that
she saw someone jump on the defendant's back right before
Gustave ran by her and urged her to run and she saw Michael
McCormack running towards her. On cross-examination and
redirect, Leblanc suggested that she witnessed the jumping
incident after Gustave ran by and she saw McCormack. In any
event, the reasonable inference is that Leblanc saw the person
jump on the defendant's back right around the time that she
began to run and saw McCormack on Warwick Street.
12
The jury, of course, were free to believe or disbelieve, in
whole or in part, the testimony of each witness. See, e.g.,
Commonwealth v. Hawkesworth, 405 Mass. 664, 675 (1989).
Accordingly, the jury in theory could have credited Leblanc's
testimony that she saw the body of only one person lying on the
ground, and that the body she was kicking was that of Stevens,
not Sullivan, and infer that the person who jumped on the
defendant's back was Sullivan.13 But the jury were not entitled
to attribute to any witness, including Leblanc, a statement or
statements that the witness did not make. See Commonwealth v.
McInerney, 373 Mass. 136, 144 (1977). Given the state of the
evidentiary record, with no evidence of contact between the
defendant and Sullivan following the alleged jump on the
defendant's back, there simply was no factual basis on which it
could be found that the defendant stabbed Sullivan in an
emotionally heated response to the physical interaction between
the two. Put another way, the evidence necessary to support the
essential causal link between any heat of passion on the
defendant's part resulting from Sullivan's jumping on his back,
13
If the jury were to make such findings, they would be
required to reject the testimony of Dyer and McCormack that
there were two bodies lying on Warwick Street at the time
McCormack ran onto the scene, and the testimony of McCormack and
Stevens that one of those prone bodies belonged to Sullivan --
because obviously, if Sullivan were then on the ground, he could
not have been the person who jumped on the defendant's back.
13
and the defendant's stabbing of Sullivan, see Garabedian, 399
Mass. at 313, was missing. The judge did not err in declining
to include the charge on voluntary manslaughter in his
instructions to the jury.
2. Instruction on malice in connection with joint venture
murder charge. With respect to the charge of murder in the
first degree, the Commonwealth's theory at trial was that the
defendant and Gustave committed the crime as part of a joint
venture. More particularly, the Commonwealth argued that the
defendant acted as a principal by stabbing Sullivan repeatedly
with his knife, or as a joint venturer with Gustave who himself
stabbed Sullivan repeatedly, or both. The defendant's theory at
trial, see note 9, supra, was that Gustave alone attacked
Sullivan -- i.e., Gustave was the principal in the crime -- and
that the defendant did not participate in that attack or share
Gustave's intent, but actually tried to stop Gustave from
continuing with that attack. The judge instructed the jury that
the Commonwealth's theory was that the defendant committed the
crime of murder as part of a joint venture, and explained what
the Commonwealth had to prove in order to establish that the
defendant was guilty under this theory. He also separately
instructed on the elements of murder in the first degree. In
his instruction on the concept of malice in relation to murder
under the theory of extreme atrocity or cruelty, he told the
14
jury:
"Malice, for this theory of murder, also includes an
intent 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 follow.
"Under this third meaning of malice, you must
determine whether based on what the defendant actually knew
at the time that he acted, a reasonable person would have
recognized that such conduct created a plain and strong
likelihood that death would result.
"In determining whether the Commonwealth has proven
this third meaning of malice, you must consider the
defendant's actual knowledge of the circumstances at the
time that he acted. Where there is evidence that a person
brought a dangerous weapon to a scene and used the
dangerous weapon on another, you may consider that evidence
as relevant in proving malice" (emphasis added).
The defendant's argument on appeal is not entirely clear,
but appears to be that it was error for the judge to include
this instruction concerning use of a dangerous weapon because,
insofar as the Commonwealth was proceeding on a joint venture
theory, the jury could infer the malice necessary for murder on
the defendant's part from Gustave's use of a dangerous weapon,
without any proof that the defendant knew Gustave was armed.
Put another way, the defendant appears to claim that in the
joint venture context presented by the Commonwealth, it was
necessary to instruct the jury that the Commonwealth must prove
that the defendant knew Gustave had a knife before they might
infer malice on the defendant's part from Gustave's intentional
use of that knife.
15
The argument fails. First, the instruction that the judge
gave is most reasonably understood as referring to defining
malice directly only in connection with the defendant. Thus,
the reference in the quoted instruction to a "person" who brings
and uses a dangerous weapon follows directly after the direction
that the jury must consider the defendant's "actual knowledge"
of the circumstances, suggesting that the "person" being
referred to is the defendant. It seems highly unlikely the jury
would interpret this instruction as indicating that if they
found that Gustave had brought and used a dangerous weapon, they
might infer from that finding the existence of malice on the
defendant's part. Second, even if one were to conclude that the
jury might understand the dangerous weapon reference in this
instruction as meaning they could somehow consider Gustave's use
of a dangerous weapon in considering the element of malice on
the defendant's part, the judge's joint venture instructions --
given both as part of the judge's final charge and again in
response to a jury question -- specifically told the jury that
if the other person in the joint venture actually committed the
substantive crime, the jury must find that the defendant himself
had or shared the intent necessary for that crime, thus
indicating that the jury must consider the defendant's intent on
its own, not as an automatic transfer of the intent of the
coventurer. These instructions were correct.
16
The defendant contends that to prove joint venture first-
degree murder under a theory of extreme atrocity or cruelty
where a dangerous weapon is involved, the Commonwealth should be
required to prove that the joint venturer both knew the
principal had a dangerous weapon and shared the principal's
intent to commit the murder in an atrocious or cruel way. That
is not the law. Where use of a weapon is not an element of the
crime -- and it is not an element of murder in the first degree
-- there is no requirement for the Commonwealth to prove
knowledge on the part of a joint venturer that the principal was
armed. See Commonwealth v. Rosa, 468 Mass. 231, 245 (2014),
citing Commonwealth v. Britt, 465 Mass. 87, 100 (2013). In
addition, in a case of joint venture first-degree murder
committed with extreme atrocity or cruelty, malice alone defines
the intent that the Commonwealth must prove. See Commonwealth v
Chaleumphong, 434 Mass. 70, 79-80 (2001) (intent necessary for
murder in first degree under theory of extreme atrocity or
cruelty is malice alone; "[i]f the Commonwealth has no burden to
prove that a defendant who acted alone knew that his acts were
extremely atrocious or cruel, then it has no such burden where
the defendant acts in a joint venture"); Commonwealth v.
Cunneen, 389 Mass. 216, 227 (1983) (same); Commonwealth v.
Monsen, 377 Mass. 245, 254-255 (1979) (same). Although in
Commonwealth v. Berry, 466 Mass. 763, 777-778 (2014) (Gants, J.,
17
concurring), and Commonwealth v. Riley, 467 Mass. 799, 828
(2014) (Duffly, J., concurring), the concurring opinions
suggested that it may be time to revisit the intent element of
murder in the first degree committed with extreme atrocity or
cruelty, this is not the case in which to do so. There was
significant evidence indicating that the defendant himself was
engaged in repeatedly stabbing the victim Sullivan, that
Sullivan struggled to avoid the harm being inflicted, and that
the stabbing wounds he received would have been painful. The
judge properly instructed the jury under the principles of law
that governed at the time; we leave to another day the question
whether to change or modify those governing legal principles.
3. Evidence of defendant's knowledge that his joint
venturer was armed with knife. Over the defendant's objection,
the judge permitted Leblanc to testify that while she was
walking with Dyer, Gustave, and the defendant to the fireworks,
she asked Gustave for "the knife" in case she ran into anyone
she "had problems with," and he said, "No." She also testified
that she did not ask whether Gustave had a knife at that time,
but assumed that he did. At the conclusion of Leblanc's
testimony, the judge gave a limiting instruction to the jury to
the effect that if they found that Gustave had stated that he
possessed a knife and that the defendant had heard him make the
statement, the jury could consider that evidence as relevant
18
only to the issue whether the defendant knew that Gustave was
armed with a knife.14 The defendant argues that despite the
limiting instruction, Leblanc's testimony about her exchange
with Gustave was admitted for its truth, and constituted
improper hearsay evidence.
There was no error. The issue whether the defendant knew
Gustave was carrying a knife was clearly relevant in this case,
if for no other reason than that the Commonwealth's theory was
that the two men were acting together as part of a joint
venture, and that the crimes charged relating to Stevens and
Tighe included as an element the possession or use of a
dangerous weapon. See, e.g., Commonwealth v. Lee, 460 Mass. 64,
69-70 (2011), citing Commonwealth v. Claudio, 418 Mass. 103, 111
(1994), overruled on another ground by Britt, 465 Mass. at 99
(to convict defendant as joint venturer rather than principal of
crime involving use or possession of dangerous weapon,
Commonwealth must prove defendant knew his coventurer was armed
14
The limiting instruction was actually more favorable to
the defendant than the evidence dictated, in that there was no
evidence before the jury that Gustave said he had a knife:
Leblanc testified that she did not ask Gustave (and
inferentially he did not state) whether he had a knife, but
rather that she assumed he did. Accordingly, the jury, if they
were following the judge's limiting instruction literally, could
not have inferred from Leblanc's testimony that Gustave stated
he had a knife, and therefore could not have inferred that the
defendant had knowledge that Gustave was carrying a knife. We
will assume, however, that the jury may have understood Leblanc
as indicating that Gustave (inferentially) stated he had a
knife.
19
with dangerous weapon). Contrary to the defendant's suggestion,
however, the evidence was not admitted to prove that in fact
Gustave had a knife. Contrast, e.g., Commonwealth v. Lowe, 391
Mass. 97, 104-105, cert. denied, 469 U.S. 840 (1984) (victim's
statements to others about facts of past events inadmissible
under state of mind exception to hearsay rule). Rather, the
judge's limiting instruction specifically restricted the
relevance and the jury's use of the statement to the defendant's
state of knowledge and, as such, it was not hearsay. See
Commonwealth v. Romero, 464 Mass. 648, 652 n.5 (2013). See also
Mass. G. Evid. § 801(c) note (2015).
4. Sufficiency of evidence of defendant's guilt on charges
relating to Stevens. The defendant was found guilty of assault
and battery by means of a dangerous weapon causing serious
bodily injury to the victim Stevens. The verdict was
necessarily premised on a determination by the jury that the
defendant was acting solely as a joint venturer with Gustave,
because the undisputed evidence was that Stevens was stabbed
only by Gustave.
As he did at the close of the Commonwealth's case when he
moved for a required finding of not guilty, the defendant
challenges the sufficiency of the evidence that he was guilty of
this crime as a joint venturer. We review the evidence to
determine whether a rational juror could conclude beyond a
20
reasonable doubt that the defendant knowingly participated in
the crime at issue with the requisite intent. See Commonwealth
v. Marrero, 459 Mass. 235, 247 (2011), quoting Commonwealth v.
Zanetti, 454 Mass. 449, 468 (2009). See generally Commonwealth
v. Latimore, 378 Mass. 671, 677-678 (1979).
The evidence permitted a reasonable juror to find that the
defendant and Gustave were close friends; that the two had come
to the scene together with their respective girl friends; that
the two took out and displayed their knives at the same time to
confront the victim Tighe; and that the two chased the three
victims -- Tighe, Stevens, and Sullivan -- and they both joined
in physically attacking Sullivan. The attacks on all the
victims took place in a very short period of time and at least
the attacks on Sullivan and Stevens took place in a
circumscribed physical area: when the police arrived, Stevens
and the victim Sullivan were lying on the ground within a few
feet of each other.15 Considered as a whole, the evidence was
sufficient to warrant the jury's guilty verdict on this charge.
See Latimore, 378 Mass. at 677-678. The defendant's motion for
a required finding of not guilty was properly denied.16
15
McCormack also testified that Sullivan and Stevens were
lying on the ground one or two feet apart when McCormack first
saw them.
16
In connection with this charge relating to Stevens, the
judge did not instruct the jury that the Commonwealth must prove
21
5. Relief under G. L. c. 278, § 33E. The defendant argues
that relief under G. L. c. 278, § 33E, is warranted here because
of the prosecutor's closing argument -- the defendant claims
improper appeals to emotion and that the prosecutor argued facts
not in evidence, errors in the judge's instructions, and
mitigating factors. We have thoroughly reviewed the entire
record of this case. We conclude that the prosecutor's closing
was not improper and find no reason that would warrant relief
under G. L. c. 278, § 33E.
Judgments affirmed.
the defendant knew that Gustave was armed with a knife. The
instruction should have been given. See, e.g., Commonwealth v.
Lee, 460 Mass. 64, 69-70 (2011). There was no objection raised
at trial, however, and the question therefore is whether the
failure of the judge to give such an instruction created a
substantial risk of a miscarriage of justice. See Commonwealth
v. Bolling, 462 Mass. 440, 452 (2012). We agree with the
Commonwealth that there was no such likelihood. There was
strong circumstantial evidence that the defendant knew Gustave
was armed with a knife at the time he stabbed Stevens, including
the conversation between Leblanc and Gustave relating to
Gustave's knife that the defendant could have overheard while
they were all walking toward the fireworks; and evidence
permitting the inference that the defendant saw Gustave holding
a knife when they both confronted Tighe preceding Gustave's
attack on Stevens. See Commonwealth v. Kilburn, 426 Mass. 31,
35 & n.7 (1997), S.C., 438 Mass. 356 (2003) (knowledge that
accomplice had weapon may be shown from circumstantial
evidence).