Commonwealth v. Brown

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SJC-11570
COMMONWEALTH vs. ENFRID BROWN, JR.
(and a companion case1).2
Suffolk. October 9, 2014. - February 11, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Homicide. Practice, Criminal, Double jeopardy, Capital case,
Verdict. Constitutional Law, Double jeopardy.
Indictments found and returned in the Superior Court on May
16, 1973.
Following review by this court, 367 Mass. 24 (1975) and 378
Mass. 165 (1979), motions for a new trial, filed on September
23, 2009, and July 26, 2012, were considered by Frank M.
Gaziano, J.
A request for leave to appeal was allowed by Gants, J., in
the Supreme Judicial Court for the county of Suffolk.
1
Commonwealth vs. William J. Johnson, Jr.
2
According to the defendants' brief, Enfrid Brown's correct
first name is Efrid and William Johnson's current name is
Abdullah K. Sabree. We follow the custom of the court and refer
to the defendants by the names used in their indictments. See
Commonwealth v. Anderson, 425 Mass. 685, 685 n.1 (1997).
2
Ryan M. Schiff, Committee for Public Counsel Services, for
William J. Johnson.
Matthew Sears, Assistant District Attorney, for the
Commonwealth.
Robert L. Sheketoff, for Enfrid Brown, Jr., was present but
did not argue.
HINES, J. The defendants, Enfrid Brown, Jr., and William
J. Johnson, were indicted on charges of murder and armed entry
with the intent to commit a felony in connection with the 1973
death of the victim, Hakim A. Jamal.3 The defendants were
convicted by a jury of murder in the first degree at their first
trial.4 We reversed the first convictions on grounds not
pertinent to this appeal and remanded for a new trial.
Commonwealth v. Brown, 367 Mass. 24, 32 (1975) (Brown I). They
were retried and again convicted. We affirmed the second
convictions. Commonwealth v. Brown, 378 Mass. 165, 166 (1979)
(Brown II).
After various proceedings, which we detail below, the
defendants filed a third5 motion for a new trial in July, 2012,
arguing that the jury's initial report of not guilty verdicts in
3
The victim also was known as Allen Donaldson.
4
The defendants were also convicted by a jury of armed
entry with the intent to commit a felony at their first trial;
they were not retried on the armed entry indictments.
5
This motion is referred to as the "supplemental" motion by
the defendants, but the single justice adopted the reference
used by the Commonwealth, and we too shall refer to this as the
"third" motion.
3
the first trial was in fact an acquittal of murder in the first
degree on the theory of deliberate premeditation and the retrial
on that same theory in the second trial violated their double
jeopardy rights. In a thoughtful memorandum of decision, a
Superior Court judge denied the motion. The defendants
petitioned a single justice of this court, pursuant to the
"gatekeeper" provision of G. L. c. 278, § 33E, for leave to
appeal. The single justice allowed the appeal to proceed on the
question whether the jury's initial verdict has the double
jeopardy consequence, under Federal constitutional law and the
statutory and common law of Massachusetts, of barring retrial on
a theory of premeditated murder. For the reasons explained
below, we conclude that the defendants suffered no violation of
their double jeopardy rights and affirm the denial of the motion
for a new trial.
1. Background. We set forth the facts the jury could have
found, as detailed in Brown II:
"On May 1, 1973, Hakim Jamal occupied a third-floor
apartment with Hane Jamal, who described herself as Hakim's
wife in a "spiritual" but not a legal sense, and with Crab
Jamal, Kidogo Jamal, Linda Jacobs, and Linda's son Anthony
Jacobs. On the morning of May 1, . . . Kidogo had an
argument with one Louella Burns (also known as Sister
Cissy).
"Burns informed members of an organization called 'De
Mau Mau' of her argument with Kidogo. Included among the
members of the organization were the . . . defendants [and
4
John Clinkscales],[6] as well as [Phillips] Key and [Isaac]
Mitchell. These five individuals procured various firearms
including handguns, carbines, and a rifle and drove to the
Jamal apartment about 11 P.M.[7] Leaving their car locked
but with the engine running, all five ascended the stairs
carrying the firearms. Key knocked on the door of the
Jamal apartment and Kidogo answered. A German shepherd dog
left the apartment while the door was open. Kidogo
attempted to close the front door, ran into the living
room, and blocked the living room door closed with his
body. Hakim, Hane, and Crab were also present in the
living room. At the same moment, Anthony was in a bedroom
at the other end of an interior hallway. Linda was in the
kitchen, which was located between the bedroom and the
living room.
"Key, Mitchell, [Clinkscales,] and the . . .
defendants entered the apartment. Johnson turned down the
hall toward the bedroom. He kicked open the bedroom door
and pointed a rifle at Anthony. Linda and Anthony, both of
whom knew Johnson well, asked him not to hurt Anthony, and
Johnson backed away. Key forced open the living room door,
pinning Kidogo between the open door and a wall. Hakim
attempted to raise a shotgun lying next to the chair in
which he was sitting. Key quickly lay down on the floor.
Mitchell fired several shots at Hakim, killing him. At
some point during these events, Brown and Clinkscales were
in the foyer area of the apartment where they were
observed, respectively, by Linda and Anthony." (Footnotes
omitted.)
Brown II, 378 Mass. at 166-168.
To provide context for the defendant's double jeopardy
claim, we describe additional aspects of the defendants' trials
and the relevant procedural history.
6
John Clinkscales was tried in 1973 and 1975 together with
the defendants appealing here and was convicted of the same
charges as the defendants, but he has since died and is not a
party to this appeal.
7
The theory presented by the Commonwealth was that the
defendants and other participants went to the apartment to pick
up Kidogo Jamal and implement "black justice."
5
a. First trial. After a ten-day trial,8 the jury reported
that they had reached verdicts and the judge summoned them to
the court room to announce the verdicts. In response to the
clerk's inquiry, the jury foreman initially announced not guilty
verdicts as to each of the murder indictments and guilty
verdicts as to the armed entry indictments. Within minutes,
however, the jury reentered the court room and amended the
previously announced not guilty verdicts to find the defendants
guilty of murder in the first degree. The jury confirmed its
initial guilty verdicts as to the indictments for armed entry of
a dwelling with intent to murder. The circumstances of the
change in the jury's verdicts from not guilty to guilty of
murder in the first degree, although mired in confusion and
ambiguity, form the factual core of the defendants' double
jeopardy claim. This court in Brown I described the events
surrounding the verdicts as follows:
"On the afternoon of the second day of their deliberations,
the jury returned verdicts of not guilty on the . . .
murder indictments and guilty on the . . . indictments for
armed entry. The verdicts were affirmed by the jury and
recorded, and the jury were discharged and allowed to
retire. Four minutes later the jury returned to the court
room and were permitted to correct the verdicts. The
foreman said, 'The way the [c]lerk read the charges to us,
or the indictments, was not the same as the form that we
8
This murder trial commenced on July 20, 1973,
approximately two months after the return of the indictment on
May 16, 1973, and nearly three months after the murder on May 1,
1973.
6
were using in the case. . . . We had written down 'not
guilty' of the intent of entering to murder.[9] But we did
find him guilty of murder in the first degree on the charge
of a felonious murder.' Corrected verdicts of guilty of
murder in the first degree and guilty of armed entry were
then returned, affirmed and recorded, and the jury were
again permitted to retire."
Brown I, 367 Mass. at 27.
We recount additional details of the reporting of the
jury's verdicts as gleaned from the record available to us.10
After instructing the jury on the law, the judge suggested a
procedure for recording the verdicts in the jury room. He
provided copies of the indictments and directed the jury foreman
to indicate the verdicts on those copies "so that [the foreman
9
The trial judge had asked the jury to write their verdicts
on copies of the indictments, and the clerk requested the copies
from the foreman of the jury after the verdicts were read, but
the foreman indicated to the clerk that he did not want to turn
them in. After reading the corrected verdicts, the foreman
handed the clerk the marked copies. The copies of the murder
indictments stated "Guilty" and there were erasure marks where
the foreman had erased "Not"; the copies of the armed entry
indictments stated "Guilty, First Degree."
10
The transcript from the first trial is missing even-
numbered pages in the portion of the trial that includes the
trial judge's instructions to the jury, the jury verdicts, and
the foreman's statements made in connection with the corrected
verdicts. In place of the missing pages, both parties cite to
our decision after review of the defendants' direct appeal
pursuant to G. L. c. 278, § 33E, Commonwealth v. Brown, 367
Mass. 24 (1975) (Brown I), which contains factual information
that is missing from the transcript. To the extent the
defendants' claim rests on the missing portions of the
transcripts, that claim is waived by the defendants' failure to
follow the procedure under Mass. R. A. P. 8 (c), as amended, 378
Mass. 932 (1979), for reconstructing the record. See
Commonwealth v. Hunt, 22 Mass. App. Ct. 932, 933 (1986).
7
would] not have any confusion in reporting." In his explanation
of this process, the judge began first with the armed entry
indictments and ended with the murder indictments, adding
information about how the foreman was to report the verdicts in
the event of guilty findings on that offense. However, in
calling for the verdicts, the clerk did not follow the order of
the judge's instructions for reporting of the verdicts.
Instead, the clerk inquired first regarding the verdict on the
murder indictments. The foreman replied, "Not guilty." As the
jury left the court room and before they were released, the
foreman alerted the court officer, stating, "There is something
wrong in the verdict." The court officer advised the foreman to
say no more and reported this exchange to the chief court
officer. The chief court officer immediately reported the
matter to the judge who was still in the court room in the
presence of counsel and the defendants. The defendants had not
yet been discharged on the indictments.
The judge summoned the jury back to the court room for
further inquiries into the matter of the verdicts. When the
jury returned to the court room, the foreman announced guilty
verdicts on each of the indictments. Apparently by way of
explanation, the foreman stated, "We signed these affidavits in
the fashion that we voted. The way the [c]lerk read the charges
to us, or the indictments, was not the same as the form that we
8
were using in this case." The foreman continued, "We had
written down 'not guilty' of the intent of entering to murder.
But we did find him guilty of murder in the first degree on the
charge of a felonious murder." Brown I, 367 Mass. at 27.
Additional details of the trial judge's charge to the jury
also provide context for the foreman's explanation regarding the
changed verdicts. In reaching their verdicts on the murder
indictments, the jury were required to parse the instructions on
two different felonies: the kidnapping of Kidogo as the
predicate felony for felony-murder; and the separate felony of
armed entry with the intent to murder Hakim. As to the latter,
the jury were instructed that if there was a reasonable doubt
"that [the defendants] went [to the apartment] to murder Hakim,
these defendants must be found not guilty" on this second
indictment.11 Brown I, supra at 29. The foreman's statement,
"We had written down 'not guilty' of the intent of entering to
murder," was an apparent reference to this instruction on the
armed entry charge.
After the jury were permitted to correct the verdicts, the
defendants moved for a mistrial, arguing that the jury had no
power to change its verdicts after being discharged. The
defendants claimed that the jury were free to mingle and talk
11
The court observed that this instruction may well have
been "too favorable" to the defendants. Brown I, supra at 29.
9
with alternate jurors and that the changed verdicts indicate
prejudicial confusion. The trial judge conducted an evidentiary
hearing and denied the defendants' motions, concluding that the
jury had the power to correct the verdicts because they were
"still within the control of the [c]ourt and in the custody of
the court officers" and had not mingled or discussed the case
with others prior to correcting their verdict. Adding his own
gloss to what had occurred, the trial judge stated, "It is clear
beyond all doubt that it was the decision of the jury that the
defendants were guilty of murder in the first degree, such
murder having been committed during the commission of a felony
punishable by life imprisonment." The judge made no comment
concerning deliberately premeditated murder.
The defendants appealed their convictions, raising a number
of issues, including the trial judge's denial of the motions for
a mistrial. We reversed the convictions and remanded for a new
trial based on the trial judge's use of an impermissibly
coercive version of the charge modeled in Commonwealth v. Tuey,
8 Cush. 1, 2 (1851). Brown I, 367 Mass. at 32. We reviewed the
circumstances of the corrected verdicts and noted that the
"present record shows no impropriety in the correction of the
verdicts on the murder indictments." Id. at 29. We questioned,
however, whether the armed entry convictions could stand in
light of the foreman's explanation, "We had written down 'not
10
guilty' of the intent of entering to murder. But we did find
him guilty of murder in the first degree on the charge of
felonious murder." Because we reversed based on the Tuey
charge, we did not review the point further and noted that "[i]t
is sufficient for present purposes that the erroneous 'not
guilty' verdicts on the murder indictments do not preclude a new
trial." Id.b. Second trial. The defendants were retried only on the
murder indictments, and both were convicted of murder in the
first degree by a jury on July 31, 1975. The trial judge had
instructed the jury to consider both "deliberately premeditated"
murder and "felony murder" as theories supporting the
indictments. The jury returned general verdicts of guilty of
murder in the first degree without specifying the theory of
culpability, as was the practice at the time.12 See Commonwealth
12
At the time of the defendants' trials, the jury were
allowed to return a guilty verdict on a murder indictment even
if fewer than twelve jurors agreed on a particular theory of
murder. Commonwealth v. Berry, 420 Mass. 95, 111 (1995), citing
Commonwealth v. Devlin, 335 Mass. 555, 567-568 (1957). In 1995,
this court recognized that the right to a unanimous jury should
extend to the theory of culpability where the offense charged
contains more than one theory. Berry, supra at 112 & n.17.
Accordingly, juries in murder trials now must unanimously agree
on the theory underlying a guilty verdict and mark such
determinations on a special verdict slip. See Commonwealth v.
Carlino, 449 Mass. 71, 77-78 (2007); Berry, supra at 112. This
rule, however, applied only prospectively, and at the time of
the defendants' trials, there was no expectation that the jury
should unanimously agree on theories underlying a verdict.
Berry, supra at 111-112.
11
v. Devlin, 335 Mass. 555, 567-568 (1957), S.C., 361 Mass. 287(1972) and 363 Mass. 171 (1973).
c. Posttrial motions. After the second trial, the
defendants filed a first motion for a new trial on the grounds
of newly discovered evidence and in the interest of justice,
based on information obtained during the trial of Phillips Key
and Isaac Mitchell for the same murder. We affirmed the
convictions following the second trial and the denial of the
first motion for a new trial. Brown II, 378 Mass. at 166.
In September, 2009, the defendants filed a second motion
for a new trial, asserting, among other claims, that their
second trial violated their double jeopardy rights because a
jury had acquitted them of murder in the first degree in their
first trial.13 The judge denied this motion, and the defendants
petitioned a single justice of this court, pursuant to the
gatekeeper provision of G. L. c. 278, § 33E, for leave to appeal
the denial. The Commonwealth assented to the defendants'
request to stay the gatekeeper proceedings pending the
defendants' filing of their third motion for new trial. In the
13
The defendants' second motion for a new trial made
essentially the same argument asserted in their petition for
habeas corpus relief. The judge dismissed the petition,
concluding that "the erroneous verdict of not guilty in the
first trial was not a final determination of the proceedings
against the petitioners and . . . , therefore, their second
trial did not violate their right not to be twice placed in
jeopardy." Brown v. Gunter, 428 F. Supp. 889, 891 (D. Mass.),
aff'd, 562 F.2d 122 (1st Cir. 1977).
12
third new trial motion, the defendants revised their double
jeopardy argument and for the first time argued that the jury
had actually acquitted them of murder in the first degree on a
theory of deliberate premeditation in their first trial and,
therefore, double jeopardy protections precluded retrial on that
same theory. The same judge who had denied the second motion
for a new trial (motion judge) also rejected this claim, ruling
that the defendants were not acquitted of murder in the first
degree murder on a theory of deliberate premeditation and,
therefore, the Commonwealth was not barred from retrying the
defendants on that theory.
The defendants then petitioned the single justice for leave
to appeal from this ruling. The single justice allowed the
defendants' petition to appeal the double jeopardy claim made in
their third motion for a new trial.14
2. Discussion. a. Standard of review. In reviewing the
denial or grant of a new trial motion, we examine the motion
14
The single justice determined that the defendants' claim
was "new" in that they had not previously focused their double
jeopardy argument on the deliberate premeditation theory,
reasoning that "this variant of the defendants' double jeopardy
argument was not raised at trial or on direct review, was not
argued or addressed on appeal, and reasonably could not have
been addressed because the applicable law was not sufficiently
developed at the time of the direct appeal." Accordingly,
review is limited to whether the defendants were acquitted at
the first trial of murder in the first degree on a theory of
deliberate premeditation. We do not address the Commonwealth's
waiver argument because we affirm the denial of the defendants'
third motion for a new trial on other grounds.
13
judge's conclusion only to determine whether there has been an
abuse of discretion or significant error of law. Commonwealth
v. Wright, 469 Mass. 447, 461 (2014). If the motion judge did
not preside at the trial, as is the case here, "we . . . 'regard
ourselves in as good a position as the motion judge to assess
the trial record.'" Id., quoting Commonwealth v. Weichell, 446
Mass. 785, 799 (2006).
b. Analysis. "[T]he [d]ouble [j]eopardy [c]lause
precludes the [g]overnment from relitigating any issue that was
necessarily decided by a jury's acquittal in a prior trial."
Yeager v. United States, 557 U.S. 110, 119 (2009), citing Ashe
v. Swenson, 397 U.S. 436 (1970). "[T]he prohibition against
double jeopardy, which flows from the Fifth Amendment to the
United States Constitution, as well as the statutory and common
law of Massachusetts, provides that 'a person cannot twice be
put in jeopardy for the same offence.'" Marshall v.
Commonwealth, 463 Mass. 529, 534 (2012), quoting Commonwealth v.
Burke, 342 Mass. 144, 145 (1961). See G. L. c. 263, § 7.15 The
double jeopardy principle "protects against three specific evils
-- 'a second prosecution for the same offense after acquittal; a
second prosecution for the same offense after conviction; and
15
General Laws c. 263, § 7, provides in relevant part: "A
person shall not be held to answer on a second indictment or
complaint for a crime of which he has been acquitted upon the
facts and merits . . . ."
14
multiple punishments for the same offense.'" Marshall, supra,
quoting Mahoney v. Commonwealth, 415 Mass. 278, 283 (1993). The
defendants' double jeopardy claim derives from the prohibition
of a second trial after an acquittal.
The defendants' double jeopardy claim depends not on what
the jury explicitly stated in the report of the verdict but on
the defendants' interpretation of what the jury must have
intended. They argue that despite the confusion surrounding the
announcement of the verdicts in the first trial, the trial judge
correctly interpreted the jury foreman's statement that the jury
reached guilty verdicts "on the charge of a felonious murder"
when he inferred that the jury intended to acquit the defendants
of deliberately premeditated murder. Consequently, they claim
that the motion judge erred in concluding that the jury did not
specifically reject the theory of deliberate premeditation and
that the jury's pronouncement, therefore, was not an acquittal
barring a retrial. We disagree. No acquittal occurred where
the jury's pronouncement of its verdicts did not unequivocally
reject the defendant's guilt on the theory of deliberate
premeditation.
An "acquittal requires a verdict on 'the facts and
merits.'" Commonwealth v. Gonzalez, 437 Mass. 276, 282 (2002),
cert. denied, 538 U.S. 962 (2003), quoting G. L. c. 263, § 7.
This disposition properly may be claimed only when the fact
15
finder reaches "a resolution, correct or not, of some or all of
the factual elements of the offense charged." Commonwealth v.
Babb, 389 Mass. 275, 281 (1983), quoting United States v. Martin
Linen Supply Co., 430 U.S. 564, 571 (1977). Thus, where a
verdict does not specifically resolve all the elements of the
offense charged, it is defective and cannot operate as either an
acquittal or a conviction. Commonwealth v. Call, 21 Pick. 509,
514-515 (1839).
The defendants do not claim that the jury unequivocally
found that the Commonwealth failed to meet its burden of proof
on the theory of deliberate premeditation. Rather, the
defendants urge us to conclude that the jury intended to acquit
them of murder on a theory of deliberate premeditation. This
alleged intent is to be deduced from an interpretation of
postverdict statements of the trial judge and jury foreman
immediately before correcting the verdicts. We are invited to
interpret the meaning of the foreman's statements and defer to
statements made by the trial judge. We decline to do so.
The foreman's statements were not sufficiently clear and
unequivocal to show that the jury actually reached a resolution
of the "factual elements" of deliberate premeditation. Babb,
389 Mass. at 281. The foreman's statement, "We had written down
'not guilty' of the intent of entering to murder. But we did
find him guilty of murder in the first degree on the charge of a
16
felonious murder." Brown I, 367 Mass. at 27, is silent as to
the jury's verdict on the theory of deliberate premeditation.
Because an acquittal may not be based on such silence, we accord
no legal significance to the jury not expressly declaring their
intent on deliberately premeditated murder. See Commonwealth v.
Carlino, 449 Mass. 71, 80 (2007) (absence of indication of any
decision on third theory of culpability not acquittal on that
theory even though jury indicated culpability on first two
theories). Thus, we may not definitively conclude that the jury
intended to acquit the defendants of deliberately premeditated
murder.
Because of the ambiguity in the foreman's statements, we do
not and cannot know what the jury intended even if it were
possible, in the absence of a clear expression, to effectuate
that intent. See Carlino, 449 Mass. at 78 n.18 ("The jury might
have intended an acquittal . . . ; they might have been unable
to reach a unanimous verdict; or they might not have deliberated
on that theory at all"). "[T]he interests of justice are not
served by entry of an acquittal by accident or supposition."
Id. at 80.
The trial judge's instructions to the jury also support the
inference that the jury did not intend to acquit the defendants
of murder on a theory of deliberate premeditation. As
instructed by the judge, the only charge that required an
17
"intent of entering to murder" was armed entry with the intent
to commit a felony. The jury could find the defendants guilty
of murder on a theory of deliberate premeditation even if the
defendants did not have the intent to murder upon entry but
developed that intent while inside the apartment. Accordingly,
the foreman's explanation that the jury intended to vote not
guilty of "the intent of entering to murder" is consistent with
this court's interpretation in Brown I that the jury may have
intended to acquit the defendants of the armed entry charges
only.16 Brown I, 367 Mass. at 29 ("there is a serious question
whether any of the verdicts on the armed entry indictments can
stand").
Although the defendants suggest that we adopt the trial
judge's explanation of the jury's intention, this suggestion
also is unavailing. Based on the record, the trial judge could
not reasonably have concluded that the jury unequivocally and
unanimously intended to return a guilty verdict only on the
theory of felony-murder without impermissible speculation into
16
The foreman's markings on the verdict slips further
support this theory. After being instructed that the possible
verdicts for armed entry were not guilty or guilty and the
possible verdicts for murder were not guilty, guilty of first
degree murder, or guilty of second degree murder, the foreman
had marked, "Guilty, First Degree," on the armed entry
indictments and marked, "Not Guilty" -- later erasing the "Not"
-- on the murder indictments.
18
jury deliberations.17 See Yeager, 557 U.S. at 122; Carlino, 449
Mass. at 80. The foreman did not testify at the posttrial
hearing on the motions for mistrial, nor did any other jurors.18
In these circumstances, where the trial judge's explanation
contradicts the foreman's statements, we accord it no deference.
We do not and cannot know what the jury intended. "The jury
might have intended an acquittal . . . ; they might have been
unable to reach a unanimous verdict; or they might not have
deliberated on that theory at all." See Carlino, supra at 78
n.18.
3. Conclusion. Because the first trial produced no
"verdict on 'the facts and merits'" of the charge of murder in
the first degree on a theory of deliberate premeditation, the
motion judge did not err in concluding that there was no
acquittal and therefore no error in prosecuting the defendants
on that same theory in the second trial. Gonzalez, 437 Mass. at
282, quoting G. L. c. 263, § 7.
Order denying motion for a
17
The defendants also ask us to adopt the prosecutor's
statement at the posttrial hearing regarding the jury's intent,
which is similarly only speculation and not binding on our
analysis.
18
The issue before the trial judge was whether the jury had
the power to correct their verdict in light of the assertion
that they were free to mingle with alternate jurors and other
persons before making such correction. The issue of what the
jury intended when they changed their verdict was not in
dispute.
19
new trial affirmed.