Commonwealth v. Gibson ( 2023 )

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SJC-12649
COMMONWEALTH vs. DAX GIBSON.
Worcester. February 10, 2023. - August 10, 2023.
Present: Budd, C.J., Gaziano, Lowy, Wendlandt, & Georges, JJ.
Homicide. Felony-Murder Rule. Home Invasion. Armed Assault in
a Dwelling. Armed Assault with Intent to Rob. Firearms.
Joint Enterprise. Practice, Criminal, Capital case, New
trial, Assistance of counsel, Instructions to jury,
Duplicative convictions.
Indictments found and returned in the Superior Court
Department on August 12, 2013.
The cases were tried before Richard T. Tucker, J., and a
motion for a new trial, filed on July 29, 2021, was heard by
Valerie A. Yarashus, J.
Jennifer H. O'Brien for the defendant.
Donna-Marie Haran, Assistant District Attorney, for the
Commonwealth.
GAZIANO, J. In February 2016, a Superior Court jury
convicted the defendant of murder in the first degree on a
theory of felony-murder and related robbery and firearms
offenses in connection with the shooting death of Luis Rodriguez
2
during a botched robbery. At trial, the Commonwealth alleged
that the defendant was the shooter, recruited by Dinkue "D"
Brown,1 who wanted to teach the victim a lesson by robbing him.
In execution of this plan, the defendant went to the victim's
apartment, knocked on the door, and pushed past the victim into
the apartment when the victim answered the door. A fight
ensued, after which the defendant fatally shot the victim.
In his direct appeal, consolidated with his appeal from the
denial of his motion for a new trial, the defendant raises an
assortment of arguments. He first claims that a new trial is
necessary because trial counsel was ineffective for failing to
introduce exculpatory telephone records. The defendant also
contends that the predicate felony of armed assault in a
dwelling merged with the killing of the victim and could not
support his felony-murder conviction. Moreover, the defendant
argues that his conviction of armed assault with intent to rob
violated his right to be free from double jeopardy. The
defendant further claims that the trial judge erred in
instructing the jury on joint venture and submitting a general
verdict to the jury. In addition, the defendant requests that
we vacate his firearms-related convictions in light of our
1 After a jury trial in September 2016, Brown was convicted
of murder in the first degree and other offenses. His direct
appeal is pending in this court. Commonwealth vs. Brown, SJC-
12650.
3
recent opinion in Commonwealth v. Guardado, 491 Mass. 666(2023). Finally, the defendant asks this court to exercise its
extraordinary authority pursuant to G. L. c. 278, § 33E, and
grant him a new trial or reduce the murder conviction to a
lesser degree of guilt.
For the reasons that follow, we vacate the defendant's
firearms-related convictions. After having carefully examined
the record and considered the defendant's arguments, we affirm
the defendant's conviction of murder in the first degree based
on a theory of felony-murder, as well as his convictions of home
invasion and armed assault with intent to rob, and we also
affirm the denial of his motion for a new trial.2
1. Background. We summarize the facts the jury could have
found, reserving certain details for later discussion.
a. Events prior to the shooting. At the time of his
death, the victim lived on the third floor of an apartment
building in Fitchburg and was a known drug dealer. A mutual
friend of both the defendant and the victim, Brown sold drugs
supplied by the victim.
2 The defendant argues, and the Commonwealth concedes, that
his conviction of armed assault in a dwelling is a lesser
included offense that is duplicative of his conviction of murder
in the first degree based on the theory of felony-murder. We
therefore vacate the defendant's conviction of armed assault in
a dwelling. See Commonwealth v. Rivera, 445 Mass. 119, 132
(2005).
4
On the night of June 20, 2013, the victim and his
girlfriend, Cendy Mejia-Rincon, met the victim's friends,
including Brown, Mallory Nooks, and Joseph Dale, to go to a bar,
and they ended the night at the victim's apartment. During that
night, the victim made a disparaging comment to Brown, and
later, the victim intervened in an altercation between Brown and
Nooks, telling Brown he needed to show women more respect. At
some point, while the group was at the victim's apartment, the
victim asked Brown to pay a debt. Brown pulled out a one
hundred dollar bill and told the victim he would pay him the
rest later that day. The gathering ended around 6 A.M., and the
victim and Mejia-Rincon went to bed.
The next day, at around 9 A.M., Michele Kelley went to
Brown's apartment in Fitchburg to pick up Brown in her blue 2006
sport utility vehicle (SUV), so that the two could deliver
drugs. Kelley's friend, Jenna Kearchner, and Kelley's twenty
month old son joined Kelley and Brown on their delivery route.
They conducted from six to eight drug deliveries over the course
of one to two hours. During this time, Brown talked on his cell
phone and was aggravated because the victim was "badmouthing
him" and making him look "bad" by saying that Brown had not paid
money he owed the victim. Brown stated that "he needed to do
something about it."
5
Brown telephoned his girlfriend, Gihan Alcantara, and told
her that he needed his gun. He instructed Alcantara to leave it
under the seat of a vehicle parked in front of her house in
Fitchburg. Kelley drove to Alcantara's residence, and Brown
ordered Kearchner to retrieve the "package" from under the seat
of the parked vehicle. Kearchner complied and returned to the
car with a plastic shopping bag containing a revolver wrapped in
a T-shirt. Brown inspected the revolver and then telephoned the
defendant, telling him that Brown "needed him . . . right away"
to do "something," and that the defendant would "be paid well."
Brown then ordered Kelley to drive him to pick up the defendant.
At the time, the defendant had been dating and living with
his girlfriend, Ashley Fruguglietti, and their infant son in an
apartment in Gardner. On that day, Fruguglietti had arranged
for her friend, Alicia Francis, to drive her to an appointment
at 1 P.M. while the defendant was to stay with their son. At
some time between 11 A.M. and 12 P.M., after Francis had arrived
to meet Fruguglietti, the defendant received a telephone call
and provided the caller with directions to their home.3 He told
Fruguglietti that he could no longer watch their son, because
3 Fruguglietti testified that the telephone call occurred
between 11 A.M. and 11:30 A.M., while Francis testified that the
telephone call occurred around noon.
6
"he had to go take care of something." The defendant left the
apartment at around 12:10 P.M.
When Kelley's car arrived at the defendant's residence, the
defendant entered the back seat with a black duffel bag
containing firearms and knives, and he was wearing a black
hooded sweatshirt, black pants, sneakers, and a black hat.
During the twenty-minute car ride to the victim's residence, the
defendant and Brown discussed how the defendant would rob the
victim of his drugs and cash, and that Brown would keep the cash
and the defendant would keep the drugs. The defendant removed
the revolver from the bag and examined it. As Kelley's car
approached the victim's residence in Fitchburg, Brown provided
the defendant with instructions and a description of the layout
of the victim's apartment; Brown warned the defendant that the
victim's girlfriend, Mejia-Rincon, might be present.
After surveying the apartment and street, the group
returned to Brown's apartment, where Brown ordered Kearchner and
Kelley's son to stay with Dale, to be held as "collateral."4
Kelley, Brown, and the defendant then left for the victim's
apartment in Kelley's blue SUV; Kelley drove, Brown sat in the
front passenger's seat, and the defendant sat in the middle seat
of the row behind Kelley and Brown. Kelley parked near the
4 Dale was tried jointly with the defendant on three charges
of kidnapping, on which he was acquitted.
7
victim's building, with her car angled slightly outward so that
they could leave quickly. The defendant wrapped a black T-shirt
around his head and face, leaving only his eyes visible, stepped
out of the vehicle, and walked to the victim's apartment.
b. The shooting. Mejia-Rincon testified that at "[a]bout
twelve" or "noontime," she heard a knock at the door; she
remained in the bedroom while the victim tossed a gun on the
bed, left the bedroom, went to the door, and asked who was
there. Mejia-Rincon heard, "It's D," but she did not readily
recognize the man's voice. The victim opened the door, and a
fight ensued, causing a couch to shift and a glass to fall on
the floor. When Mejia-Rincon peeked from one of the two bedroom
doors that opened into the living room, the fighting had
stopped, and she saw a person "wearing all black" with "a black
hat that covered the whole head" pointing an "old-fashioned gun"
with a cylinder at the victim, who was standing against the
wall. After observing the two individuals "for less than a
minute," Mejia-Rincon closed the bedroom door and heard people
running, followed by two or three gunshots. When Mejia-Rincon
opened the second door to the bedroom, which provided a view of
the entrance, she saw the man dressed in black with his head
covered walk out of the apartment. She noticed marks on the
back of the shooter's neck, which appeared to be tattoos, but
she was not wearing her eyeglasses. Mejia-Rincon did not see
8
the victim. Mejia-Rincon testified that she thought the shooter
might have been Brown but was not sure because she never saw the
shooter's face. The incident "happened quick[ly]," in "a short
time," over the course of "maybe like ten, fifteen minutes."
On the day of the shooting, at exactly noon, Amanda
Compton, the victim's first-floor neighbor, heard a "bunch of
noise," like people wrestling, followed by what sounded like a
"herd of elephants" coming down the stairs. She did not recall
hearing gunshots.
"[A] couple of minutes" after the defendant left her
vehicle, Kelley heard approximately three gunshots. About one
minute later, she observed the victim leave the apartment
building, shirtless and bleeding from the chest, and "[dive]
into what looked like bushes." Right after, the defendant also
left the residence and got into the back seat of the vehicle,
stating that his "life [was] over" because his deoxyribonucleic
acid (DNA) would be in the victim's apartment. The defendant
removed his T-shirt, and Kelley believed that the defendant had
cut his hand, which is why he expressed concern that his DNA
would be in the apartment. The defendant cried and said that
the victim fought back, and that he did not want to kill the
victim, but that the victim was going to die. On Brown's
command, Kelley "peeled out" and left the area.
9
The victim's neighbor, Gary Laaksonen, arrived home from
work and was outside at around 12:45 P.M. From his front yard,
about forty to fifty feet away, he observed a "bluish-gray"
colored SUV parked across the street with two people in it -- a
woman with reddish hair in a pulled back style in the driver's
seat and a man with a shaved head in the front passenger's side.
Laaksonen then saw his neighbor, the victim, who appeared to be
scared, come out of his apartment building. Approximately one
to two minutes later, Laaksonen observed a second man leave the
victim's apartment building, go to the vehicle parked across the
street, enter by the rear passenger's side door, and say, "Let's
go, let's get out of here."
c. Aftermath of the shooting. Kelley drove to a
convenience store, where Brown instructed her to park behind the
store so that they could "get rid of the guns." He also ordered
Kelley to clean blood from the back seat where the defendant had
sat. The defendant expressed concern that Kelley was a witness
to the events surrounding the shooting, so Brown made her
promise not to tell anyone.
The defendant, Brown, and Kelley then entered Tiffany
Phillinger's apartment, which was in a building connected to the
convenience store. According to Phillinger, a friend of the
defendant, the defendant and Brown arrived between 1 P.M. and
1:30 P.M. The defendant and Brown were "fidgety," and the
10
defendant appeared nervous. She also noticed that the defendant
had "a couple of spots of blood on his leg." The defendant used
Phillinger's bathroom to shower, and Phillinger gave the
defendant and Brown a change of clothes. They then went to the
kitchen to listen to a police scanner to see whether anyone had
reported Kelley's license plate. While listening to the
scanner, Brown asked the defendant, "Why did you do that?" and
the defendant responded, "What did you expect me to do? He was
fighting me." A day or two later, the defendant telephoned
Phillinger and told her to "say that he wasn't at [her] house"
and "not to mention [his] name, or else."
At around 1:20 P.M., while still at the victim's residence,
Mejia-Rincon telephoned two of the victim's friends and
explained that she did not know where the victim had gone or
what had happened to him.5 The victim's two friends arrived
within the next twenty minutes; they searched for the victim but
could not locate him. After they "heard a lady scream" from
outside, the three decided to stop their search and leave. They
left the apartment before police arrived.
5 On the day of the shooting, Nooks received a telephone
call about the shooting from her brother, one of the victim's
friends, who had helped search for the victim. Nooks then
called Brown to ask him about what had happened; she testified
that the call occurred between 11:30 A.M. and 12 P.M.
11
After the defendant and Brown cleaned up at Phillinger's
apartment, the defendant left and went to Fruguglietti's
mother's house. The defendant arrived there at around 2:30 P.M.
He was upset, had tears in his eyes, a cut on his hand, and
blood on his sneakers. The defendant told Fruguglietti that he
had been in a fight, that he had "fucked up," and that he was
sorry.
Francis drove the defendant and Fruguglietti back to
Gardner. The defendant told Fruguglietti and Francis to provide
him an alibi and to tell police that he was with them "from
twelve to five" that day. The defendant told Francis that he
had "messed up," that he had been "in a fight for his life," and
that he had tried to rob someone, but it had gone wrong; he then
asked her to bring his sneakers to her work and to get rid of
them in the Dumpster. Francis complied.
Later that night, the defendant told Francis and
Fruguglietti that he needed a ride the next morning, June 22,
2013, to meet a van that would bring him to New York City. He
also told them that he was "sorry," and that his intent was to
rob the victim, but "it went wrong." After being pressed by
Fruguglietti, the defendant further explained what had occurred:
he had knocked on the victim's door, pushed his way into the
apartment, and pointed a gun at the victim when he realized the
victim also had a gun. He then said that "they [had] got[ten]
12
in a physical fight, and that the gun [had gone] off a few
times; and he [had] looked around for something to take out of
the house, and he [had] seen a girl in the house, so he ran
out." The defendant admitted that Brown told him the victim had
drugs and money at his apartment, and "it was too good of an
opportunity to pass up."
d. Police investigation. At 2:16 P.M., emergency medical
workers and police officers responded to a telephone call from a
neighbor indicating that there was a man in need of assistance;
they found the victim's body on the rear porch of a building
near his apartment building. A blood trail went from the
victim's body, up some steps to a sidewalk and eventually to the
front exterior stairs, the front porch, and through the interior
stairs and hallway of the victim's apartment building, leading
to his third-floor apartment. The medical examiner who
performed the autopsy reported that the victim had two gunshot
wounds and "two graze gunshot wounds." The victim also had
abrasions on the side of his left abdomen, on the right side of
his back, and on his right hip area; abrasions or scratches on
both knees; and lacerations on his scalp and on the left side of
his neck. The cause of death was determined to be a gunshot
wound to the torso.
Inside the victim's apartment, police located three scales
and a knife in the front bedroom, and two intertwined white T-
13
shirts with blood stains, a folding knife, and a .40 caliber
Smith & Wesson semiautomatic pistol in the living room. In the
kitchen, police observed a hole in the door trim to the pantry,
wooden fragments on the kitchen table, a mark on the wall above
the sink, a mark on the ceiling, and a projectile on the kitchen
floor. Police did not recover any shell casings, which the
Commonwealth's ballistics expert testified is consistent with
shots fired from a revolver. He further opined that the
projectile found in the kitchen, along with the two projectiles
removed from the victim's body, could not have been fired by the
firearm located in the victim's apartment. Based on the
markings in the victim's kitchen and the spent projectiles, the
ballistics expert concluded that the shots were fired from the
front of the living room into the kitchen area.
On June 23, 2013, Kelley went to the Fitchburg police
station and gave statements to police about the murder. When
she arrived at the police station, Kelley gave the officers the
keys to her vehicle and told them that evidence of the murder
would be in her car.
Police searched the vehicle, finding blood stains at the
back of the front passenger's seat "near the bottom of the arm-
rest area," and in the rear passenger's seat toward the middle
seats on both the seat back and seat bottom. The major male DNA
profile obtained from the swab of the rear passenger's seat
14
matched the victim. The defendant, Brown, and the victim were
excluded as the source of the major DNA profile from the swab of
the back of the front passenger's seat.
On June 25, 2013, the defendant telephoned Fruguglietti and
warned her "that the police were going to come to [her] house,
and not to be stupid." A few minutes later, police arrived and
brought Fruguglietti and Francis to the police station for
questioning. Per the defendant's request, Fruguglietti and
Francis both lied to police officers, telling them that the
defendant had been with them from 12 P.M. to 5 P.M. on the day
of the shooting.
Officers interviewed Francis again on July 9, during which
she gave a statement that differed from her earlier interview
when she said that she had been with the defendant on June 21
from 12 P.M. to 5 P.M. The defendant fled from Massachusetts,
and he later was apprehended with Fruguglietti in Virginia on
July 25.
e. Prior proceedings. In August 2013, a grand jury
returned indictments charging the defendant with murder in the
first degree, G. L. c. 265, § 1; home invasion, G. L. c. 265,
§ 18C; armed assault in a dwelling, G. L. c. 265, § 18A; armed
assault with intent to rob, G. L. c. 265, § 18 (b); three counts
of kidnapping, G. L. c. 265, § 26; possession of a firearm
without a firearm identification (FID) card, as a career
15
criminal, G. L. c. 269, §§ 10 (h) (1), 10G (a); possession of
ammunition without an FID card, as a career criminal, G. L.
c. 269, §§ 10 (h) (1), 10G (a); unlawfully carrying a loaded
firearm without a license, G. L. c. 269, § 10 (a), (n); and
threatening to commit a crime, G. L. c. 275, § 2.
In January 2016, the defendant's joint trial with his
codefendant, Dale, commenced and spanned two weeks. In February
2016, the jury convicted the defendant of murder in the first
degree on the theory of felony-murder, in addition to all the
remaining charges, except for the three kidnapping charges and
threatening charge, on which he was acquitted. The defendant
filed his notice of appeal soon thereafter, and the Commonwealth
subsequently entered a nolle prosequi for the unlawful
possession of ammunition charges.
The defendant's appeal was docketed in this court in 2018.
The defendant then filed a motion to stay his appeal and a
motion for a new trial, which was remanded to the Superior
Court. The motion judge, who was not the trial judge, denied
the defendant's motion for a new trial after a nonevidentiary
hearing, and the defendant again appealed. We allowed the
defendant's motion to consolidate his direct appeal with his
appeal from the denial for his motion for a new trial.
2. Discussion. a. Ineffective assistance of counsel.
The defendant argues that his trial counsel was ineffective for
16
failing to introduce three categories of telephone records,
thereby depriving him of an otherwise available, substantial
ground of defense, namely, that Brown was the shooter, while the
defendant was at home in Gardner the entire time.
When reviewing a defendant's appeal from the denial of a
motion for a new trial in conjunction with the direct appeal of
a conviction of murder in the first degree, "we do not evaluate
his ineffective assistance claim under the traditional standard
set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974)"
(citation omitted). Commonwealth v. Melendez, 490 Mass. 648,
656-657 (2022). Instead, we apply the more favorable standard
of G. L. c. 278, § 33E, and review the defendant's claim for a
substantial likelihood of a miscarriage of justice. Id. at 657.
Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C. 469
Mass. 447 (2014). Under this standard, "we first ask whether
defense counsel committed an error in the course of trial," and
if there was error, "we ask whether it was likely to have
influenced the jury's conclusion." Commonwealth v. Ayala, 481
Mass. 46, 62 (2018), citing Commonwealth v. Seino, 479 Mass.
463, 472-473 (2018).
We conclude that any errors by trial counsel did not create
a substantial likelihood of a miscarriage of justice. See
Ayala, 481 Mass. at 62. Accordingly, the motion judge did not
abuse her discretion in denying the defendant's motion for a new
17
trial. See Commonwealth v. Hernandez, 481 Mass. 189, 195, cert.
denied, 140 S. Ct. 168 (2019), quoting Commonwealth v. Phinney,
446 Mass. 155, 158 (2006), S.C., 448 Mass. 621 (2007) ("As the
motion judge was not the trial judge, and as the motion judge
conducted a nonevidentiary hearing, we are in 'as good a
position as the motion judge to assess the trial record'"
[footnote omitted]).
Trial counsel explained that the Commonwealth provided him
with telephone records of various witnesses and involved parties
prior to trial. From what he could recall, he did not introduce
the telephone records because it was unclear to whom the
telephone numbers belonged or who was using the telephones at
the relevant times. Trial counsel nonetheless conceded that his
decision not to introduce telephone records in furtherance of
the defendant's alibi defense was an oversight; he did not know
there were telephone records that could have supported the
defendant's alibi or "defense in any way."
There are three categories of telephone records at issue:
a 12:16 P.M. telephone call from the defendant's landline to
Brown on the day of the shooting; Kelley's cell phone records
between 11 A.M. and 1 P.M. on the day of the shooting,
indicating her ability to access and use her cell phone; and
Brown's cell phone records, specifically, a twenty-one minute
18
period of inactivity from 12:22 P.M. to 12:43 P.M. on the day of
the shooting. We analyze each in turn.
i. Telephone call at 12:16 P.M. The defendant argues that
the 12:16 P.M. telephone was important alibi evidence; it would
be impossible for the defendant to be the shooter, where
multiple witnesses testified that the shooting occurred at or
around noontime and where the telephone call proves he was still
at his house in Gardner at that time. The motion judge
concluded this information was not material because, even if the
defendant had made that telephone call, it was possible for him
still to travel the distance between Gardner and Fitchburg and
to commit the murder in the time frame described "by at least
some of the witnesses." We agree.
The witnesses provided varying testimony about when exactly
the shooting occurred, which makes it difficult to discern a
concrete timeline of events to support the defendant's theory
that he could not have been in Fitchburg at the time of the
shooting. For instance, the victim's girlfriend, Mejia-Rincon,
and the woman who was in the first-floor apartment on that day,
Compton, both testified that the events occurred at noon.
Laaksonen offered differing testimony, telling the jury that he
saw the victim and an individual in pursuit of him leave the
victim's residence at around 12:45 P.M. Nooks recalled calling
Brown to ask him about the shooting between 11:30 A.M. and
19
12 P.M., and one of the two friends who helped search for the
victim received a telephone call from Mejia-Rincon at "around"
1:20 P.M. immediately after the shooting. According to
Phillinger, the defendant and Brown arrived at her apartment
between 1 P.M. and 1:30 P.M. Finally, emergency personnel
responded to a dispatch at 2:16 P.M., and Fruguglietti and
Francis both testified that the defendant arrived at
Fruguglietti's mother's house at around 2:30 P.M. As the motion
judge noted, all of the trial testimony "is consistent with the
crucial events occurring between noon and 2 P.M., but beyond
that, there are multiple differing estimates of the precise time
of the shooting and surrounding circumstances."
Considering the timeline evidence in its totality, even if
trial counsel had introduced the 12:16 P.M. telephone call at
trial and were able to prove the defendant was the individual
who made that call, it likely would have had little effect on
the jury's verdicts. See Commonwealth v. Moore, 489 Mass. 735,
743-745 (2022) (no ineffective assistance of counsel where "cell
phone records [did] not establish a different timeline from that
developed at trial"). It cannot be said that trial counsel was
ineffective where there is nothing that indicates "better work
might have accomplished something material for the defense."
Commonwealth v. Watt, 484 Mass. 742, 764 (2020), quoting
Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
20
Moreover, trial counsel elicited testimony to place the
alibi defense in front of the jury. Fruguglietti testified that
the defendant did not leave their apartment in Gardner until
12:10 P.M. Counsel highlighted this fact in his closing
argument, stating that the defendant "at noontime on June 21,
2013, is in Gardner, twenty to thirty minutes away from [the
victim's apartment]." Although introducing the 12:16 P.M.
telephone call could have corroborated Fruguglietti's testimony,
failure to introduce this evidence cannot be said to have
resulted in a substantial likelihood of a miscarriage of
justice. See Commonwealth v. Hensley, 454 Mass. 721, 736
(2009), citing Commonwealth v. Medeiros, 395 Mass. 336, 347
(1985) ("There is no requirement that trial counsel always
present . . . documentary evidence to support an argument,
especially where other evidence is presented to support it").
ii. Kelley's cell phone records. Next, the defendant
argues that Kelley's cell phone records, showing that she was
sending and receiving text messages and telephone calls between
11 A.M. and 1 P.M. on the day of the shooting, indicates that
she did have access to her cell phone while she was held
captive, despite testifying that she did not, significantly
undermining her credibility as a witness. This argument is
unavailing.
21
As an initial matter, "[e]ven [using] the more favorable
standard of review under § 33E, a claim of ineffective
assistance based on failure to use particular impeachment
methods is difficult to establish." Commonwealth v. Fisher, 433
Mass. 340, 357 (2001). Further, both trial counsel and
investigating officers explained that it was difficult to
distinguish who was using which cell phone. A State police
detective who investigated the victim's death testified that
because there was "a lot of handing of cell phones back and
forth," "there [was] no reliability as to who to associate,
phone-to-number." Even if trial counsel introduced Kelley's
cell phone records to attempt to show that she did have access
to and used her cell phone while she was being held captive, the
jury already had heard that the cell phone records were an
unreliable means of determining who was actually making a given
telephone call.
Trial counsel also diligently and thoroughly impeached
Kelley by questioning her about her differing versions of events
over time,6 her drug use and her dependency on Brown as her drug
dealer, and the benefits she received from the prosecution for
testifying in the defendant's trial. Further impeachment of
6 At a prior hearing in this case, Kelley testified that
Brown was the individual who went into the victim's building to
attempt to rob the victim.
22
Kelley with her cell phone records likely would not have
affected the jury's verdict in this case, where "it would have
been cumulative of the ample information trial counsel already
had available and used effectively." Watt, 484 Mass. at 764.
See Fisher, 433 Mass. at 357 ("absent counsel's failure to
pursue some obviously powerful form of impeachment available at
trial, it is speculative to conclude that a different approach
to impeachment would likely have affected the jury's
conclusion").
iii. Brown's cell phone records. Finally, the defendant
maintains that trial counsel was ineffective for failing to
introduce Brown's cell phone records, which would have shown a
twenty-one minute period of inactivity between 12:22 P.M. and
12:43 P.M. on the day of the shooting. He argues that this
period of inactivity supports the theory that Brown was the one
who shot the victim, and not the defendant.
We cannot say that introduction of these records would have
influenced the jury verdict. See Ayala, 481 Mass. at 62. As
the motion judge correctly noted, introduction of Brown's cell
phone records could have hurt the defense, because they showed
multiple telephone calls between the defendant and Brown on the
day of the shooting. They also corroborated Kelley's and
Fruguglietti's testimony that the defendant received a telephone
call from Brown in the time leading up to the shooting.
23
Although the period of silence in Brown's telephone usage
supported the defendant's theory that Brown was the shooter, it
equally would have tied the defendant to Brown, where the
Commonwealth's theory was the defendant participated in a joint
venture to rob and kill the victim. The fact that Brown was not
using his cell phone actively from 12:22 P.M. to 12:43 P.M. may
have provided some support for the theory that Brown was the
shooter, but those same records would have aided a theory that
the defendant nonetheless was guilty of murder in the first
degree as a joint venturer. Where introduction of the cell
phone records had the simultaneous potential to incriminate and
exculpate the defendant, there can be no substantial likelihood
of a miscarriage of justice. See, e.g., Commonwealth v. Jacobs,
488 Mass. 597, 604 (2021) (counsel was not ineffective for
failing to call witnesses where testimony "could cause more harm
than good to the defense's case").
Given the overwhelming evidence of the defendant's guilt,
we are confident that even if trial counsel had offered the
telephone records, they would not have influenced the jury's
conclusion that the defendant shot the victim. We discern no
error in the judge's denial of the defendant's motion for a new
trial on this basis.
b. Felony-murder merger doctrine. The defendant was
convicted of felony-murder with the predicate felonies being
24
armed home invasion and armed assault in a dwelling. At oral
argument before this court, the issue of merger arose
surrounding the Commonwealth's reliance on these charges to
serve as the predicates for the charge of felony-murder in the
first degree. The parties were permitted to file supplemental
briefing on this issue. In his supplemental filing, the
defendant argues that the trial judge erred by failing to
instruct the jury on the merger doctrine of felony-murder, where
armed assault in a dwelling was the predicate offense. We agree
that the trial judge should have instructed on merger, but it
did not result in a substantial likelihood of a miscarriage of
justice.
"The merger doctrine functions as a constraint on the
application of the felony-murder rule by limiting the
circumstances in which a felony may serve as the predicate for
felony-murder." Commonwealth v. Fredette, 480 Mass. 75, 80
(2018).7 Specifically, "the conduct which constitutes the felony
must be separate from the acts of personal violence which
constitute a necessary part of the homicide itself" (quotation
and citation omitted). Commonwealth v. Gunter, 427 Mass. 259,
7 As both the murder and the defendant's trial occurred
before our decision in Commonwealth v. Brown, 477 Mass. 805, 807
(2017), cert. denied, 139 S. Ct. 54 (2018), we do not address
the effect that that decision has on the ongoing vitality of the
merger doctrine. See Fredette, 480 Mass. at 80 n.9.
25
272 (1998), S.C., 456 Mass. 1017 (2010) and 459 Mass. 480, cert.
denied, 565 U.S. 868 (2011). The doctrine "ensures that not
every assault that results in death will serve as a basis for
murder in the first degree on the theory of felony-murder."
Commonwealth v. Scott, 472 Mass. 815, 819 (2015).
In Fredette, we established a two-step framework to analyze
whether a felony merges with a subsequent killing in cases that
predate our decision in Commonwealth v. Brown, 477 Mass. 805(2017), cert. denied, 139 S. Ct. 54 (2018). See Fredette, 480
Mass. at 81. The first step is to inquire whether, as a matter
of law, the felony is capable of merger. See Commonwealth v.
Phap Buth, 480 Mass. 113, 118 n.8, cert. denied, 139 S. Ct. 607
(2018). The second step is a factual inquiry; "[i]f merger is a
possibility, it is for the jury to determine whether the felony
that occurred was separate from the killing as a matter of
fact." Id., citing Fredette, supra at 84.
i. Separate intent or purpose. A predicate felony is
incapable of merger with the killing itself if it has "an intent
or purpose separate and distinct from the act causing physical
injury or death." Fredette, 480 Mass. at 81. Kidnapping, armed
robbery, rape, and arson are examples of predicate felonies that
are categorically incapable of merging with murder because they
have an intent or purpose separate and distinct from the act of
killing. See id. at 86 ("Because aggravated kidnapping involves
26
an intent independent from the killing, neither form of
aggravated kidnapping implicates the merger doctrine");
Commonwealth v. Christian, 430 Mass. 552, 556 (2000) (armed
robbery does not merge with killing because underlying purpose
of armed robbery is to steal, which is independent of intent to
harm victim); Commonwealth v. Wade, 428 Mass. 147, 153 (1998),
S.C., 467 Mass. 496 (2014) and 475 Mass. 54 (2016) ("the intent
to commit the rape, not the intent to inflict serious bodily
harm, was the substitute for the malice requirement of murder");
Commonwealth v. Quigley, 391 Mass. 461, 466 (1984), cert.
denied, 471 U.S. 1115 (1985) (for purposes of merger doctrine,
"rape, arson, robbery and burglary are sufficiently independent
of the homicide" [citation omitted]). If this condition is
satisfied, no further analysis is required. Fredette, supra
at 81.
Here, however, one of the potential predicate offenses was
armed assault in a dwelling, which lacks "an independent
felonious purpose from the intent to cause physical injury or
death." Fredette, 480 Mass. at 85. See Gunter, 427 Mass.
at 274-275 (there are circumstances "wherein armed assault in a
dwelling is not a suitably independent felony to support a
conviction of murder in the first degree"). Therefore, it was
error for the trial judge not to instruct the jury on merger; it
was for the jury to decide whether the conduct underlying the
27
felony was distinct from the act that caused the killing. See
Phap Buth, 480 Mass. at 118. Because the defendant did not
object at trial to the lack of instruction, we consider whether
that error created a substantial likelihood of a miscarriage of
justice. See id. at 119; Gunter, supra at 274.
ii. Independent acts. "If the underlying predicate felony
does not have an independent felonious purpose, the court must
then undertake a second step in the analysis, to determine
whether the felony merges with the killing." Fredette, 480
Mass. at 84. We turn next to whether the predicate felony
merged with the shooting as a matter of fact. See Phap Buth,
480 Mass. at 118 n.8. Armed assault in a dwelling "may serve as
the predicate for felony-murder so long as the conduct that
constitutes the armed assault (the underlying felony) is
separate and distinct from the conduct necessary to kill the
victim." Fredette, supra at 85, citing Commonwealth v. Kilburn,
438 Mass. 356, 358-359 (2003).
Here, the defendant argues that there was a single struggle
between the defendant and the victim that resulted in the death
of the victim thereby implicating the merger doctrine. We
disagree. Testimony by Mejia-Rincon, who was present at the
time of the shooting, in addition to Fruguglietti's testimony
and evidence of the victim's injuries, support that there were
at least two separate assaults of the victim.
28
Mejia-Rincon testified that there was a knock at the door,
and when the victim opened the door, a fight ensued. After the
fighting had ceased, Mejia-Rincon opened the bedroom door and
looked out into the living room, where she saw the defendant
pointing a gun at the victim, who was standing against the wall.
After she closed the door again, she heard running and then two
or three gun shots. Fruguglietti also testified at trial,
recounting the defendant's version of events. The defendant
told Fruguglietti that he knocked on the victim's door, pushed
his way into the apartment, and proceeded to get into a physical
fight with the victim. The gun then went off a few times.
Mejia-Rincon testified that "[e]verything happened quick[ly],"
in "a short time," over the course of "maybe like ten, fifteen
minutes."
Based on the testimony given at trial there was at least
one, and possibly two, assaults that occurred prior to the shots
being fired that resulted in the death of the victim. First,
the defendant told Fruguglietti that he pushed his way into the
victim's apartment. Second, there also was a fight between the
defendant and the victim and time between the "scuffle" and the
shooting of the victim -- enough time that Mejia-Rincon closed
the bedroom door and heard running. The defendant's and the
victim's injuries also are consistent with an assault having
occurred prior to the shooting. The defendant had a cut on his
29
hand from the victim "fighting" back, and the victim had
multiple abrasions and lacerations on his abdomen, back, knees,
neck, and head. The evidence was sufficient to establish that
there were, at a minimum, two discrete assaults. See Scott, 472
Mass. at 823 (defendant's conviction of felony-murder in first
degree with home invasion as predicate felony affirmed where
defendant's struggle with victim at front door constituted first
assault, and where gunshot killing victim, which occurred "right
after," was second independent assault); Kilburn, 438 Mass.
at 359 (no merger where person in home opened door, gunman
committed first assault by entering, brandishing gun, and
pushing victim backward, and after short interlude, gunman then
shot victim, committing second act). Contrast Commonwealth v.
Stokes, 460 Mass. 311, 314 & n.8 (2011) (armed home invasion
could not serve as predicate felony because act of pointing gun
at victim in course of shooting him was not sufficiently
separate from shooting itself). It is not dispositive that the
shooting occurred within a short period of time after the
defendant entered the victim's apartment. See Scott, supra
at 824 (fact that entry into residence and shooting "occurred
within a matter of seconds" was not fatal to merger analysis).
In sum, the trial judge should have instructed the jury on
merger where the predicate felony for felony-murder was armed
assault in a dwelling, and there was only one victim. See Model
30
Jury Instructions on Homicide 63 (2018) (merger instruction
required "where [1] the underlying felony contains an element of
assault and [2] the underlying felony, by its nature, does not
have an intent or purpose separate and distinct from the act
causing physical injury or death"). Nevertheless, given the
evidence at trial, the jury could have found beyond a reasonable
doubt that the defendant committed at least two distinct
assaults on the victim; the lack of instruction did not result
in a substantial likelihood of a miscarriage of justice. See
Phap Buth, 480 Mass. at 120, citing Gunter, 427 Mass. at 274.
c. Armed assault with intent to rob. The defendant argues
that his conviction of armed assault with intent to rob must be
vacated as duplicative of his conviction of armed assault in a
dwelling where the predicate felony for felony-murder was armed
assault in a dwelling, and the armed assault with intent to rob
served as the "fourth element" for armed assault in a dwelling.
Specifically, the defendant's argument is that, because the
Commonwealth had to prove that the defendant had the specific
intent to commit an armed assault with intent to rob, his
convictions of both armed assault in a dwelling and armed
assault with intent to rob are duplicative. Unpacking this
nested argument requires a review of the elements of both armed
assault in a dwelling and armed assault with intent to rob.
31
At trial, the judge correctly instructed the jury that to
convict the defendant of armed assault in a dwelling, as the
predicate offense for felony-murder, the Commonwealth must prove
beyond a reasonable doubt that "(1) the defendant entered a
dwelling that was not his own while armed with a dangerous
weapon; (2) the defendant assaulted another inside the dwelling;
and (3) the assault was committed with the intent to commit a
felony." Commonwealth v. Negron, 462 Mass. 102, 109 (2012),
citing G. L. c. 265, § 18A. To convict an individual of armed
assault with intent to rob, the Commonwealth must prove that the
defendant (1) was armed with a dangerous weapon; (2) assaulted a
person; and (3) had a specific or actual intent to rob the
person assaulted. Commonwealth v. Rivera, 445 Mass. 119, 130
n.15 (2005), citing G. L. c. 265, § 18.
The defendant argues that the actions were related so
closely that the verdicts are duplicative, citing Commonwealth
v. Santos, 440 Mass. 281, 293 (2003), in support of this
proposition. Our decision in Santos was overruled by our
decision in Commonwealth v. Anderson, 461 Mass. 616, 632-633,
cert. denied, 568 U.S. 946 (2012), where we explicitly rejected
the closely related conduct-based approach except where one
crime is a lesser included offense of the other or where there
are multiple counts of the same offense. See id., quoting
Commonwealth v. Vick, 454 Mass. 418, 431 (2009) ("elements-based
32
approach remains the standard for determining whether multiple
convictions stemming from one criminal transaction are
duplicative"). Because here we do not have multiple counts of
the same offense and armed assault with intent to rob is not a
lesser included offense of armed assault in a dwelling, we apply
the traditional same elements test. See Vick, supra, citing
Morey v. Commonwealth, 108 Mass. 433, 434 (1871). "[A]
defendant may be properly punished for two crimes arising out of
the same course of conduct provided that each crime requires
proof of an element that the other does not." Vick, supra,quoting Commonwealth v. Valliere, 437 Mass. 366, 371 (2002).
The defendant's argument that these two convictions are
duplicative fails because armed assault in a dwelling and armed
assault with intent to rob both require proof of an element that
the other does not -- entry into a dwelling while armed with a
dangerous weapon and an intent to rob the person assaulted,
respectively. While we recognize that the defendant's
conviction of armed assault in a dwelling rested on proof of the
defendant's specific intent to commit a robbery, "we consider
only the elements of the crimes, not the facts to be proved or
the evidence adduced to prove them." Vick, 454 Mass. at 431,
quoting Commonwealth v. Cabrera, 449 Mass. 825, 827 (2007). See
Commonwealth v. Jones, 441 Mass. 73, 76 (2004) ("the elements of
the crimes charged are considered objectively, abstracted from
33
the facts [of the case]" [citation omitted]). For the purposes
of our application of the same elements test involving a
conviction of armed assault in a dwelling, we do not consider
the felony that the defendant intended to commit. See People v.
Miller, 498 Mich. 13, 19 (2015) (under legal elements test, "two
offenses will only be considered the 'same offense' where it is
impossible to commit the greater offense without also committing
the lesser offense"). We therefore affirm the defendant's
conviction of armed assault with intent to rob.
d. Joint venture jury instructions. The defendant further
argues that a new trial is warranted because the judge
erroneously instructed the jury on joint venture liability and
allowed the jury to return a general verdict without requiring
the jury to specify whether the defendant was guilty under
principal liability or joint venture liability. At trial, the
defendant objected to the jury instructions on joint venture, so
we review the judge's instructions for prejudicial error. See
Commonwealth v. Murphy, 442 Mass. 485, 508-509 (2004). He did
not otherwise object to the verdict slip used, so we review any
error with respect to the verdict slip for a substantial
likelihood of a miscarriage of justice. See Wright, 411 Mass.
at 681.
The trial judge informed the jury that "the Commonwealth
claims that [the defendant] acted individually or as a joint
34
venturer with . . . Brown in committing the offenses of murder,
armed assault in a dwelling, armed assault with intent to rob,
home invasion, and the firearm[s] charges." He then instructed
the jury on joint venture in accordance with the then current
Model Jury Instructions on Homicide 16 (2013) and our opinion in
Commonwealth v. Zanetti, 454 Mass. 449, 470 (2009) (Appendix).
The defendant argues that the jury instructions on joint
venture were erroneous because it was possible, based on the
instruction given, that the jury convicted him of merely being
present at the time of the shooting. There was no error in the
trial judge's joint venture instructions. He stated:
"Mere presence at the scene of the crime is not enough to
find a defendant guilty. Presence alone does not establish
a defendant's knowing participation in the crime, even if a
person knew about the intended crime in advance and took no
steps to prevent it. To find a defendant guilty, there
must be proof that the defendant intentionally participated
in some fashion in committing that particular crime and had
or shared the intent required to commit the crime. It is
not enough to show that the defendant simply was present
when the crime was committed, or that she knew about it in
advance."
The instructions adequately informed the jury that the
Commonwealth must prove more than mere presence to convict the
defendant. See Zanetti, 454 Mass. at 470 (Appendix).8
8 The defendant requests that we reconsider our holding
Zanetti, 454 Mass. 449 (establishing modified test and jury
instructions on joint venture). We decline to do so. See
Commonwealth v. Miller, 486 Mass. 78, 94 n.6 (2020).
35
Nor did the judge err in supplying a general verdict slip
to the jury. In Zanetti, 454 Mass. at 466-467, we issued the
following guidance for trial judges when instructing the jury on
joint venture liability:
"(1) instruct the jury that the defendant is guilty if the
Commonwealth has proved beyond a reasonable doubt that the
defendant knowingly participated in the commission of the
crime charged, alone or with others, with the intent
required for that offense; (2) continue to permit the trial
judge to furnish the jury with a general verdict even when
there is differing evidence that the defendant committed
the crime as a principal or as an accomplice; and (3) on
conviction, examine whether the evidence is sufficient to
permit a rational juror to conclude beyond a reasonable
doubt that the defendant knowingly participated in the
commission of the crime charged, with the intent required
to commit the crime."
Id. Thus, the Commonwealth "need not establish a defendant's
precise role in the crime, i.e., whether the defendant acted as
a principal or accomplice," Commonwealth v. Bonner, 489 Mass.
269, 277 (2022), only that the defendant knowingly participated
in the commission of the crime charged with the required
criminal intent. See Commonwealth v. Watson, 487 Mass. 156, 162
(2021), citing Zanetti, supra at 467. The defendant concedes
that there was sufficient evidence of his involvement in the
shooting as either a joint venturer or a principal. There is no
basis, therefore, to grant a new trial on these grounds.
e. Defendant's firearms convictions. The defendant
requests that we vacate his convictions of unlawful possession
of a firearm and unlawful possession of a loaded firearm in
36
light of our recent decision in Guardado, 491 Mass. 666. In
that case, we held that the due process clause and the Second
Amendment to the United States Constitution require the
Commonwealth to bear the burden of disproving that a defendant
had a license to possess a firearm when prosecuting a defendant
for unlawful possession of a firearm, and the jury instructions
must relay this burden. Id. at 692-693. Where the jury is not
instructed on this burden, and where there is no record evidence
on the lack of license, the defendant is entitled to vacatur of
the conviction. See id. at 692-694. The holding in that case
applies prospectively "and to those cases that were active or
pending on direct review as of the date of the issuance of [New
York State Rifle & Pistol Ass'n v. Bruen, 142 S. Ct. 2111
(2022)]." Id. at 694. As the defendant's direct appeal was
pending at the time of the issuance of Bruen on June 23, 2022,
he is entitled to the benefit of our decision in Guardado.
The trial judge's jury instruction on the charge of
unlawful possession of a firearm was as follows:
"In order to prove the defendant guilty of [unlawful
possession of a firearm], the Commonwealth must prove three
things beyond a reasonable doubt: first, that the
defendant possessed an item; second, that the item meets
the legal definition of 'firearm'; and third, that the
defendant knew that he possessed that firearm."
There was no instruction that required the Commonwealth to
disprove that the defendant had a license to possess a firearm.
37
Further, after a review of the record, evidence of the
defendant's lack of license never was introduced at trial.
Thus, the defendant's conviction of unlawful possession of a
firearm must be vacated. Because unlawful possession of a
loaded firearm under G. L. c. 269, § 10 (n), "is not an
independent charge but, rather, 'constitute[s] further
punishment of a defendant who also [has] been convicted under
G. L. c. 269, § 10 (a),'" the defendant's conviction of unlawful
possession of a loaded firearm also must be vacated. See
Guardado, 491 Mass. at 670 n.4, quoting Commonwealth v. Tate,
490 Mass. 501, 520 (2022).
f. Review under G. L. c. 278, § 33E. Pursuant to our duty
under G. L. c. 278, § 33E, we have conducted a thorough review
of the entire record and discern no basis upon which to exercise
our extraordinary authority to order a new trial or to reduce
the verdicts.
3. Conclusion. The defendant's convictions of murder in
the first degree, home invasion, and armed assault with intent
to rob, and the order denying his motion for a new trial, are
affirmed. The conviction of armed assault in a dwelling is
vacated, and the charge shall be dismissed. The convictions of
38
unlawful possession of a firearm and unlawful possession of a
loaded firearm are also vacated.9
So ordered.
9 The issue whether retrial shall be permitted on the
firearms convictions vacated pursuant to Guardado, 491 Mass.
666, is currently pending before this court and is scheduled for
oral argument in September 2023. See Commonwealth vs. Guardado,
No. SJC-13315. The rescript in this opinion shall be stayed
pending our decision in that case.