Commonwealth v. Desiderio ( 2023 )

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SJC-13338
COMMONWEALTH vs. NICHOLAS DESIDERIO.
Worcester. February 8, 2023. – May 4, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Armed Home Invasion. Robbery. Joint Enterprise. Evidence,
Joint venturer. Practice, Criminal, Instructions to jury.
Indictments found and returned in the Superior Court
Department on March 3, 2015.
The cases were tried before Richard T. Tucker, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
MarySita Miles for the defendant.
Nathaniel R. Beaudoin, Assistant District Attorney, for the
Commonwealth.
LOWY, J. A jury in the Superior Court convicted the
defendant, Nicholas Desiderio, of one count of armed home
invasion and three counts of armed robbery while masked. The
indictments were based on a theory of joint venture. The jury,
2
however, were not instructed that, to convict the defendant of
those charges on a joint venture theory, the Commonwealth was
required to prove that the defendant knew that at least one
coventurer was armed (for the count of armed home invasion), and
that at least one coventurer was both armed and masked (for the
counts of armed robbery while masked). Those instructions were
required. See Commonwealth v. Bolling, 462 Mass. 440, 450
(2012).
The issue in this appeal is whether the failure to instruct
the jury of these requirements created a substantial risk of a
miscarriage of justice. To decide whether an error creates a
substantial risk of a miscarriage justice, we must determine "if
we have a serious doubt whether the result of the trial might
have been different had the error not been made." Commonwealth
v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass. 72 (2005),
quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). In
making this determination, we consider four factors, where
applicable: "[(1)] the strength of the Commonwealth's case,
[(2)] the nature of the error, [(3)] the significance of the
error in the context of the trial, and [(4)] the possibility
that the absence of an objection was the result of a reasonable
tactical decision." Azar, supra.
Although we recently have analyzed the question of
substantial risk of a miscarriage of justice where an element of
3
a crime has been omitted from the jury instructions by
determining whether "the evidence was 'so overwhelming' that
'there is no likelihood that the omitted instruction materially
influenced the jury's verdict[],'" Commonwealth v. Silvelo, 486
Mass. 13, 17-18 (2020), quoting Commonwealth v. Lutskov, 480
Mass. 575, 581 (2018), we now recognize that this formulation
confuses rather than accurately reflects the necessary
considerations of the substantial risk analysis in this context.
As in all contexts, where an element of the crime charged
has been omitted from the jury instructions, the factors for
determining whether there was a substantial risk of a
miscarriage of justice remain the focus of the analysis. The
factors applicable to circumstances where an element has been
omitted in particular, however, and the manner in which they
should be considered, are captured in the standard we
articulated in Azar: whether the presence of the omitted
element was an ineluctable inference from the evidence at trial.
See Azar, 435 Mass. at 687. This standard, although undoubtedly
high, is best understood as an explanation of the applicable
substantial risk factors, and not a deviation from their
application. Where an element of a crime is omitted from the
instructions, the jury are erroneously excused from applying the
facts, as they find them, to that element. This creates a risk
of conviction in circumstances where the Commonwealth failed to
4
meet its burden of proof beyond a reasonable doubt as to the
missing element. Our substantial risk of a miscarriage of
justice analysis in these circumstances thus must be
correspondingly exacting.
Because, in this case, the defendant's knowledge that the
coventurers were armed or masked cannot be ineluctably inferred
from the evidence at trial, the instructional error leaves us
with a serious doubt whether the result of the trial might have
been different had the jury been correctly instructed. We
therefore conclude that the error created a substantial risk of
a miscarriage of justice. As a result, we reduce the
defendant's convictions of armed robbery while masked to unarmed
robbery, and we vacate the judgment on the conviction of armed
home invasion and set aside the verdict.
Background. We recite the relevant facts adduced at trial
to establish the defendant's guilt as a coventurer.
1. The home invasion. On the evening of January 5, 2014,
the homeowner, his daughter, and her boyfriend, who was visiting
for the evening, were all in the home. The homeowner (victim)1
went to bed at approximately 9 P.M., as he did most nights,
after all the doors to his home were locked. Not long after
1 We recognize that the daughter and her boyfriend were also
victims, but we refer to them by their relational titles to
avoid confusion.
5
9 P.M., two masked men entered the home: a shorter, heavy-set
man with "Hispanic, African-American kind of complexion" and a
tall, Caucasian man.2 The taller man carried a gun, and the
shorter, heavier-set man carried a ten to twelve inch crowbar.
It is undisputed that neither man was the defendant.
The two men first entered the daughter's bedroom, where the
daughter and her boyfriend were watching television. The men
carried two zip ties. They tied the boyfriend's hands behind
his back with one of the zip ties, and then whispered to each
other. The daughter heard one say, "Just go duct tape her," and
the men proceeded to tie the daughter's hands behind her back
with duct tape. The men also placed duct tape over the mouths
of the daughter and her boyfriend. The men forced both to lie
on the floor and placed a blanket over their heads. They asked
the daughter where her father was, but they did not ask about
her mother, who was deceased.
The men next went to the victim's bedroom. The heavier-set
man jostled the victim awake and flipped him over in bed. He
tied the victim's hands behind his back with the second zip tie.
The men pulled the victim out of bed and pushed him down the
hallway toward the living room where there was a stone chimney.
2 The man with the darker complexion did not have his face
fully covered by the mask, and while the lighter-complexioned
man had a "full-fledged mask" on, the skin under his eyes was
visible.
6
A picture that ordinarily hung on the chimney to hide a safe
that was installed there had already been removed. The safe was
exposed. At the taller gunman's insistence, the victim provided
the men with the combination to unlock the safe. Unable to open
the safe, the men freed the victim's hands so that he could
input the combination. Once the safe was unlocked, the heavier-
set man with the crowbar again bound the victim's hands, this
time using duct tape. Meanwhile, the taller man filled a
pillowcase with the safe's contents, which included $50,000 in
cash in one hundred dollar bills, and numerous pieces of jewelry
belonging to the victim, his daughters, and his deceased wife.
The men also took "a couple hundred" dollars from the victim's
wallet, as well as the victim's father's Purple Heart and other
military medals from a chest inside the victim's bedroom.
After emptying the safe, the men led the victim to his
daughter's bedroom, where the daughter and her boyfriend
remained hand-bound on the floor. The men forced the victim to
get on the floor, and they put the blanket over his head as
well. The men asked if there was any more money or drugs in the
house, and "ransack[ed]" the room, checking drawers and the
mattress. They then left with the cell phones of all three.
After hearing the men leave, the boyfriend slipped his right
hand loose from the zip tie and freed the victim. The boyfriend
next went to the window and saw the two men get into the front
7
and rear passenger seats of a waiting vehicle. The vehicle was
driven away, and the boyfriend found a telephone and dialed 911.
Police were dispatched to the house at 9:52 P.M. When police
arrived, no signs of forced entry were detected.
2. Evidence connecting the defendant. The defendant and
the victim met around 2009, while the defendant was dating the
daughter of the victim's cousin. The defendant began to work
for the victim's home construction business, and he did so for
approximately three years until the victim scaled back his
business in 2012 due to health issues. During that time, the
defendant was "like a family member" to the victim and often
frequented the victim's home. Indeed, the defendant became
"very familiar" with the victim's home. The defendant knew that
the victim had a safe inside the stone chimney hidden behind a
framed picture and that the victim kept large amounts of cash in
this safe. Further, the defendant knew that the victim's wife
was deceased and that he lived with one of his daughters.
After the defendant had left the victim's employ, the
victim's health improved, and he purchased a two-family house to
remodel and sell. The victim learned that the defendant was
displeased with his living situation, and he offered to allow
the defendant to live in the second-story apartment of the two-
family house in exchange for the defendant's assistance with
remodeling and maintenance. The defendant agreed. The
8
relationship, however, broke down in the summer of 2013 when the
victim sold the house and informed the defendant that he needed
to find another place to live. The defendant refused to leave
and "threatened" the victim by stating, "If you weren't such an
old, you know, SOB, I'd kick the shit out of you." The victim
retained counsel and paid the defendant a sum of money, after
which the defendant agreed to vacate the premises. The victim
and the defendant had minimal contact following that dispute.
Around the time of the home invasion on January 5, 2014,
the defendant and Timothy Lavin shared three telephone calls and
one text message. At the time, the defendant and Lavin had
known each other for twelve to thirteen years. There was
considerable testimony at trial that Lavin matched the
description of the tall, Caucasian gunman involved in the
invasion. The first call was placed from Lavin's cell phone at
9:08 P.M. It connected to the defendant's cell phone at
9:09 P.M., and it lasted fifteen seconds on the defendant's cell
phone.3 The second call was placed at 9:15 P.M., and it lasted
twenty-two seconds on the defendant's cell phone. At 9:33 P.M.,
Lavin sent a text message to the defendant that went unanswered.
The third call was placed at 9:48 P.M., and it lasted seven
3 There was some discrepancy between the length of the
telephone calls registered to Lavin's and the defendant's cell
phones due to the time it took to connect to the defendant's
cell phone and for the defendant to answer.
9
seconds on the defendant's cell phone. Each of the three calls
connected to a cell tower that was less than one mile from the
victim's home.
On January 22, just over two weeks after the home invasion,
Lavin, who had a suspended license, was observed by police
driving a BMW motor vehicle.4 Lavin was known to have an
inconsistent work history and money issues, and investigation by
police revealed that he had purchased the BMW six days earlier,
on January 16, for $3,700 in cash. The BMW was registered to
Lavin's longtime friend, Gerald Bates. Lavin was arrested that
day for operating a motor vehicle with a suspended license, and
his bail was set for an amount between $1,500 and $2,000. Lavin
paid most of his bail with a "bundle of hundred dollar bills"
that he had on his person. The defendant and his girlfriend
drove to the police station, and his girlfriend went inside and
paid the remaining amount while the defendant waited in the car.
Eight days later, police executed a search warrant at
Lavin's residence. Inside the residence, police discovered a
mask, a firearm, and two locked safes. One of the safes
contained $2,700 in cash, and inside the other, multiple pieces
of jewelry were found. Among the jewelry recovered, the victim
and his daughter identified the victim's high school class ring,
4 Lavin stipulated at trial that his license was suspended
on that date and that he had notice of the suspension.
10
the victim's wedding ring, the victim's deceased wife's watch
and rings, and a necklace given to the daughter by her
grandparents for graduating high school.
3. Procedural history. A grand jury indicted the
defendant on one count of armed home invasion and three counts
of armed robbery while masked.5 The defendant's cases were
joined with Lavin's for trial.6 At trial, the Commonwealth
proceeded against the defendant under a theory of joint venture,
contending that the defendant provided the coventurers with the
necessary information to execute the home invasion and robbery
and that he acted as the getaway driver.
During the main jury charge, in accordance with
Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009), the judge
instructed the jury that, to find the defendant guilty beyond a
reasonable doubt of the crimes charged under a theory of joint
venture, the Commonwealth was required to prove that the
defendant knowingly participated in the commission of the
offenses and shared or had the requisite intent for the
offenses. However, the judge did not instruct the jury that, to
prove that the defendant shared the intent required for those
5 The defendant also was indicted on one count of
conspiracy, which was dismissed at the Commonwealth's request.
6 The shorter, heavy-set man involved in the home invasion
was never identified or charged.
11
crimes, the Commonwealth needed to prove that the defendant knew
that at least one coventurer was armed, for the charge of armed
home invasion, and that at least one coventurer was armed and
masked, for the charges of armed robbery while masked. See
Commonwealth v. Buth, 480 Mass. 113, 116, cert. denied, 139 S.
Ct. 607 (2018) (under joint venture theory, "[w]here . . . an
element of the offense is that the perpetrator is armed, the
Commonwealth must prove that the defendant knew that at least
one coventurer was armed"); Commonwealth v. Quinones, 78 Mass.
App. Ct. 215, 219 (2010) ("To support a conviction on the charge
of armed robbery while masked, the Commonwealth, proceeding on a
joint venture theory of the defendant's guilt, had the burden of
proving that the defendant knew that the principal perpetrators
of the robbery . . . would be both armed and masked"). The
defendant did not object to the jury instructions. The jury
convicted him of all four counts.
The defendant appealed. The Appeals Court, in a divided
opinion, concluded that the failure to instruct the jury that
the Commonwealth was required to prove that the defendant knew
that his coventurers were armed and masked created a substantial
risk of a miscarriage of justice because, pursuant to the
standard we articulated in Silvelo, 486 Mass. at 18, "the
evidence . . . was not 'so overwhelming' that 'there is no
likelihood that the omitted instruction materially influenced
12
the jury's verdict[].'"7 Commonwealth v. Lavin, 101 Mass. App.
Ct. 278, 279 (2022). We allowed the Commonwealth's application
for further appellate review, limited to the issue whether the
failure to instruct the jury on the Commonwealth's burden to
prove that the defendant knew that one of the coventurers was
armed and masked created a substantial risk of a miscarriage of
justice.
Discussion. 1. Standard of review. Because the defendant
did not object to the erroneous jury instructions, we review the
case to determine whether the instructional error created a
substantial risk of a miscarriage of justice. See Bolling, 462
Mass. at 452. "The substantial risk standard requires us to
determine 'if we have a serious doubt whether the result of the
trial might have been different had the error not been made.'"
Azar, 435 Mass. at 687, quoting LeFave, 430 Mass. at 174. In
conducting this analysis, we are guided by four factors: "[w]e
consider [(1)] the strength of the Commonwealth's case, [(2)]
the nature of the error, [(3)] the significance of the error in
the context of the trial, and [(4)] the possibility that the
7 The Appeals Court, at the Commonwealth's request, reduced
the defendant's convictions of armed robbery while masked to
unarmed robbery and remanded for resentencing of those charges,
but vacated the defendant's conviction of armed home invasion,
leaving to the Commonwealth the decision whether to retry the
defendant on that charge. See Commonwealth v. Lavin, 101 Mass.
App. Ct. 278, 301 (2022).
13
absence of an objection was the result of a reasonable tactical
decision." Azar, supra. See Commonwealth v. Alphas, 430 Mass.
8, 13 (1999) (setting forth factors applicable to standard of
review for unpreserved errors in noncapital cases). See also
Commonwealth v. Randolph, 438 Mass. 290, 298 (2002)
(articulating formulation as series of questions).
We previously have addressed the particular suitability of
the substantial risk of a miscarriage of justice standard to
situations where the elements of a crime are stated erroneously
or are omitted from the jury instructions. See Silvelo, 486
Mass. at 17 n.7, quoting Azar, 435 Mass. at 687. In Azar, where
the judge provided an erroneous definition of the "so-called
third prong of malice" in a murder trial, which lowered the
Commonwealth's burden of proof, we surveyed cases where the same
error had or had not required reversal. See Azar, supra at 682,
687-688, and cases cited. We deduced from those cases that a
new trial is not required where the evidence at trial did not
permit a finding of lesser proof than what is required under the
third prong of malice -- the erroneously stated element. Id. at
687-688. We therefore stated that the proper question in such
circumstances is "whether the evidence required the jurors to
find [the omitted or erroneously stated element, had it been
correctly stated]." Id. at 688. In other words, where the
presence of the omitted or erroneously stated element, "as it is
14
correctly understood, can be 'ineluctably inferred' from the
evidence," a new trial is not necessary. Id., quoting
Commonwealth v. Vizcarrondo, 427 Mass. 392, 397 (1998), S.C.,
431 Mass. 360 (2000).
More recently, in Silvelo, 486 Mass. at 17, where the judge
omitted from the jury instructions an essential element of the
crime of possession of a loaded firearm, and the defendant
failed to object, we similarly applied the substantial risk of a
miscarriage of justice standard. There, we stated that our
consideration in this context was "to determine whether the
evidence was 'so overwhelming' that 'there is no likelihood that
the omitted instruction materially influenced the jury's
verdict[].'" Id. at 17-18, quoting Lutskov, 480 Mass. at 581.
In so stating, we specifically acknowledged that "this
formulation diverge[d] from Azar, 435 Mass. at 688, under which
we analyzed whether the 'evidence required the jury to [have
found]' or to have 'ineluctably inferred' that the Commonwealth
carried its burden of proving the omitted element beyond a
reasonable doubt." Silvelo, supra at 18 n.9. We nevertheless
emphasized that, in using this particular formulation, we did
not "intend this semantic difference in language to change the
stringency of the standard announced in Azar." Id. We meant
it.
15
The reason the substantial risk of a miscarriage of justice
standard is stringent in this context is not because we apply a
different test to this type of error from the one we apply to
others. In all noncapital cases,8 where a defendant has waived a
claim of error, our review is limited to the substantial risk of
a miscarriage of justice standard, which "calls for us to decide
if we have a serious doubt whether the result of the trial might
have been different had the error not been made."9 LeFave, 430
Mass. at 174-175 & n.6. However, in making this determination,
we must consider the relevant factors applicable to the
substantial risk analysis, including the nature of the error and
its significance in the context of the evidence presented at
trial. See Alphas, 430 Mass. at 13. Omitting an element from
the jury instructions is an error of constitutional dimension,
see Neder v. United States, 527 U.S. 1, 12-14 (1999), that poses
a significant risk that the jury will convict the defendant on
8 In capital cases, we review claims of unpreserved error
for a substantial likelihood of a miscarriage of justice.
Commonwealth v. Duke, 489 Mass. 649, 659 (2022).
9 We also have said that "[a]n error creates a substantial
risk of a miscarriage of justice unless we are persuaded that it
did not 'materially influence[]' the guilty verdict." Alphas,
430 Mass. at 13, quoting Commonwealth v. Freeman, 352 Mass. 556,
564 (1967). The two explanations produce the same result: "An
error may be said to have materially influenced the verdict only
if we are left with 'a serious doubt [as to] whether the result
of the trial might have been different had the error not been
made'" (citation omitted). Commonwealth v. Horne, 476 Mass.
222, 228 (2017).
16
proof less than what is required for the crime charged. See
Azar, 435 Mass. at 688-689. And on appeal, "our role is not to
sit as a second jury." Id. at 689. Thus, in order for us not
to have serious doubt that the defendant's guilt has been fairly
adjudicated, such that the error did not create a substantial
risk of miscarriage of justice, we must analyze the evidence
pertaining to that element with an exacting lens. See id. at
687-688.
This substantial risk analysis contemplates whether the
evidence addressing the omitted or erroneously stated element
was overwhelming or uncontested at trial. Compare Lutskov, 480
Mass. at 581 (omitted instruction on Commonwealth's burden to
prove defendant's age created no substantial risk of miscarriage
of justice where evidence of age was "so overwhelming that [it]
was not a contested issue at trial"), with Bolling, 462 Mass. at
450-452 (omitted instruction on Commonwealth's burden to prove
defendant knew coventurer was armed created substantial risk of
miscarriage of justice where evidence of defendant's knowledge
that one coventurer was armed "was not overwhelming" and was
contested at trial). Cf. Johnson v. United States, 520 U.S.
461, 470 (1997) (unpreserved error of omitted instruction on
materiality in perjury prosecution created no "miscarriage of
justice" where "evidence supporting materiality was
17
'overwhelming,'" and "[m]ateriality was essentially
uncontroverted at trial" [citation omitted]).
Thus, in providing another articulation of how we analyze
substantial risk of a miscarriage of justice in the omitted
element context in Silvelo, 486 Mass. at 17-18, we asked
"whether the evidence was 'so overwhelming' that 'there is no
likelihood that the omitted instruction materially influenced
the jury's verdict[]'" (citation omitted). We now acknowledge
that this articulation of the standard is flawed. It is so, in
part, because it mirrors our prior explanation of the standard
for analyzing harmless error -- the standard applicable to
preserved constitutional error. See Commonwealth v. Castano,
478 Mass. 75, 82 (2017), quoting Commonwealth v. Dagraca, 447
Mass. 546, 555 (2006) ("an error may be harmless beyond a
reasonable doubt where the Commonwealth's evidence is so
'overwhelming' that it 'nullif[ies] any effect the erroneously
admitted [evidence] might have had on the jury or the
verdict'"). But more so, this formulation poses a question
that, in most cases, is extremely difficult to answer: whether,
because the evidence was "so overwhelming," there is no
likelihood, theoretical or otherwise, that the error materially
influenced the verdict. Silvelo, supra.
Our review of unpreserved errors is not whether there is
any risk of a miscarriage of justice, but rather, it is whether
18
that risk is a substantial one. See Azar, 435 Mass. at 676,
quoting LeFave, 430 Mass. at 175 ("society's justified interest
in finality . . . has long been implicit, and sometimes
explicit, in our announcements that any late-arriving issue will
prevail only if the issue presents a substantial risk of a
miscarriage of justice"). See also Commonwealth v. Russell, 439
Mass. 340, 351 (2003) ("As the terminology implies, a
'substantial risk of a miscarriage of justice' refers to a risk
that has some genuine substance to it. That standard does not
encompass an abstract, theoretical possibility of a miscarriage
of justice, utterly divorced from the case as it was
tried. . . . [If] the only risk identified is one that is
totally removed from or at odds with that 'context,' we may rest
assured that the error did not give rise to a substantial risk
of a miscarriage of justice").
To be sure, whether the Commonwealth's evidence is
"overwhelming," let alone "so overwhelming," is certainly a
consideration in the substantial risk calculus as a general
matter. It is, however, one part of that analysis. See Alphas,
430 Mass. at 13. The analysis of substantial risk of a
miscarriage of justice must consider the four factors as they
apply to the individual circumstances of each case. But not all
of the factors will be applicable in every case, and the way
that they apply may vary depending on the particular
19
circumstances. Where the nature of the error is omitting an
element from the jury instructions, specifically, our assessment
of the strength of the Commonwealth's evidence must focus on the
evidence addressing the element that was stated erroneously or
omitted from the jury instructions.
In this case, notably, the Commonwealth does not argue that
the fourth factor -- whether it can be inferred that the
defendant's failure to object to the erroneous jury instructions
was a reasonable tactical decision -- is applicable. See
Alphas, 430 Mass. at 13. Nor can we now contemplate a case
where the failure to object to jury instructions relieving the
Commonwealth of its burden to prove a necessary element beyond a
reasonable doubt would be the result of a reasonable tactical
decision.10 See Bolling, 462 Mass. at 452 ("it seems unlikely
that the failure to request the instruction was a reasonable
10We note that the circumstances here are distinguishable
from those where a defendant strategically declines to request
an instruction on the elements of a lesser included offense.
See, e.g., Commonwealth v. Glover, 459 Mass. 836, 844 (2011)
(reasonable strategic decision not to request instruction on
voluntary manslaughter so as to proceed solely on theory of
self-defense). But see id. at 843 n.8 ("However, where defense
counsel's strategic decision not to request an instruction on a
lesser included offense . . . is manifestly unreasonable, a
judge may need to exercise the inherent authority to give the
instruction sua sponte to protect the case from the risk of
reversal on appeal"). We also note that a judge may always
provide an instruction on a lesser included offense that is
warranted from the evidence, regardless of whether the defendant
or the Commonwealth objects. See Commonwealth v. Russell, 470
Mass. 464, 480 (2015).
20
tactical decision because requiring the jury to make an
additional finding about the defendant's state of mind before
convicting him could not have prejudiced his case"); Azar, 435
Mass. at 689 ("there is no reasonable tactical basis for a
failure to object to a mistaken and unfavorable [to the
defendant] definition of an element of the crime").
Accordingly, where an element that the Commonwealth is
required to prove beyond a reasonable doubt is omitted from the
jury instructions, our analysis of substantial risk of a
miscarriage of justice is limited to considering the three
remaining factors, which focus on the strength of the
Commonwealth's evidence in light of the nature of the error and
its significance in the context of the trial. These factors are
all captured by the standard articulated in Azar, 435 Mass. at
688. We therefore clarify today that, to determine whether a
substantial risk of a miscarriage of justice is created by the
omission of a required element from the jury instructions, the
question is, as we said in Azar, supra, whether the presence of
the omitted element was an ineluctable, or inescapable,
inference from the evidence presented at trial. In light of the
nature and significance of this type of error, only when the
answer to that question is "yes," in this context, will the
error not create a substantial risk of a miscarriage of justice.
In other contexts, of course, the substantial risk determination
21
will depend on the circumstances of each case, considering the
applicable factors. See Alphas, 430 Mass. at 13.
2. Application. To prove beyond a reasonable doubt that
the defendant was guilty of armed home invasion and armed
robbery while masked under a theory of joint venture, the
Commonwealth was respectively required to prove that the
defendant knew that one coventurer was armed, and that one
coventurer was both armed and masked. We therefore must
determine whether the presence of these elements was an
ineluctable inference from the evidence at trial.11 Because, as
to either element, we conclude it was not, we are left with a
serious doubt whether the result of the trial might have been
different had the instructional error not been made.
There was no direct evidence that the defendant knew that
the coventurers were armed or masked. This is "not
determinative," however, because a defendant's knowledge that a
coventurer is armed or masked may be proved by circumstantial
11The Commonwealth's argument that this standard should not
apply in this case because the requirements of joint venture are
not elements of the underlying crimes is unavailing. While
"joint venture is neither a crime nor an element of a crime,"
Commonwealth v. Fluellen, 456 Mass. 517, 522 (2010), the
perpetrator being armed is an element of both underlying crimes
in this case. See G. L. c. 265, §§ 17, 18C. Thus, to convict
the defendant of those crimes under a joint venture theory, the
Commonwealth needed to prove that the defendant knew that one
coventurer was armed. See Buth, 480 Mass. at 116. The same is
true of the preparator being masked for the charge of armed
robbery while masked. See Quinones, 78 Mass. App. Ct. at 219.
22
evidence. See Commonwealth v. Ellis, 432 Mass. 746, 762 (2000).
The Commonwealth directs our attention to nine pieces of
circumstantial evidence that it asserts should leave us with no
serious doubt that the defendant's guilt as a coventurer was
fairly adjudicated.
This circumstantial evidence includes (1) evidence
suggesting that the defendant told the coventurers intimate
details about the victim's home, such as the location of the
safe, indicated by the removal of the picture from the chimney;
(2) evidence suggesting that the defendant knew and told the
coventurers that the victim kept large amounts of cash in the
safe; (3) evidence suggesting that the defendant told the
coventurers that only two people would be in the home, such as
them having brought only two zip ties; (4) evidence suggesting
that the defendant told the coventurers that the victim's wife
was deceased, such as the coventurers not asking the daughter
where her mother was; (5) evidence that the defendant had a
motive to seek revenge and steal money from the victim due to
their animosity arising out of the defendant's living
arrangement in the summer of 2013; (6) evidence that the
defendant and Lavin communicated via cell phone on the night of
the home invasion; (7) historical cell site location information
(CSLI) evidence placing the defendant in the vicinity of the
home invasion at the time it occurred; (8) evidence that the
23
defendant and his girlfriend drove to the police station to pay
Lavin's bail, but the defendant stayed in the car, inferably to
avoid police connecting him with Lavin; and (9) evidence that
the defendant and Lavin had a close relationship.
There is no question that the coalescence of this
circumstantial evidence told a powerful and persuasive story
that the defendant was substantially involved in the home
invasion and subsequent robbery. It did not, however, require
the jury to find that the defendant knew that his coventurers
were armed and masked during the commission of those crimes.
See Azar, 435 Mass. at 688. While the evidence suggesting that
the defendant assisted with orchestrating the crimes and acted
as the getaway driver may have been sufficient for the jury to
infer that the defendant possessed the requisite knowledge, see
Commonwealth v. Netto, 438 Mass. 686, 703 (2003), such
inferences were hardly ineluctable.12
At trial, there was no evidence -- direct or circumstantial
-- that one of the coventurers conspicuously possessed a weapon
or a mask around the defendant. The most forceful evidence that
the defendant knew that the coventurers were armed and masked
was the evidence that placed him in the vicinity of the home on
12For sufficiency purposes, "[i]nferences must be
reasonable, but they do not have to be inescapable." Netto, 438
Mass. at 703. The same is not true of our calculus here.
24
the night in question and suggested that he drove the getaway
vehicle. However, as the Commonwealth has acknowledged, to
adjudicate the defendant guilty as a coventurer, the jury were
not required to find that the defendant participated in the
crimes by driving the getaway vehicle. Given the other evidence
of his participation, and the defendant's vehement challenges to
the accuracy of the CSLI evidence placing him near the victim's
home that night,13 it is not readily apparent that the jury did
so find. Even if the jury did find that the defendant was the
getaway driver, although it would have been permissible for them
to infer the defendant's knowledge from this fact, see
Commonwealth v. Cannon, 449 Mass. 462, 470-471 (2007), the
absence of evidence that the coventurers exhibited weapons or
masks when leaving or entering the vehicle could also have led
the jury to reach the opposite inference.
In short, while the evidence that the defendant knew that
the coventurers were armed and masked during the home invasion
13Specifically, on cross-examination of the State police
trooper who testified for the Commonwealth about the defendant's
CSLI, the defendant elicited testimony that historical CSLI such
as that used in this case is the least accurate method to
identify the location of a cell phone. The trooper further
testified on cross-examination that a cell site tower may have a
range of five or more miles, and that cell phones do not always
connect to the cell tower to which they are physically closest.
In closing, the defendant relied heavily on this testimony to
undermine the Commonwealth's position that the defendant's CSLI
placed him in the vicinity of the victim's home at the time of
the crimes.
25
and robbery was certainly sufficient, and from that evidence the
jury were more than entitled to draw those inferences, we cannot
say that the inferences were ineluctable. Without proper
instruction informing the jury that the Commonwealth was
required to prove the defendant's knowledge of those two
particulars beyond a reasonable doubt, we are left with a
serious doubt whether the outcome of the trial would have been
different had the instructional error not been made. The error
therefore created a substantial risk of a miscarriage of
justice.
Conclusion. Consistent with the Commonwealth's request in
the Appeals Court, the defendant's convictions of armed robbery
while masked are reduced to unarmed robbery, and the matter is
remanded to the Superior Court for resentencing of those
offenses. The judgment on the defendant's conviction of armed
home invasion is vacated and the verdict is set aside.
So ordered.