Commonwealth v. Smith

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SJC-13231
COMMONWEALTH vs. BRITTANY SMITH.
Franklin. April 10, 2023. - August 10, 2023.
Present: Budd, C.J., Gaziano, Cypher, Kafker, & Wendlandt, JJ.
Homicide. Joint Enterprise. Evidence, Joint enterprise. Jury
and Jurors. Practice, Criminal, Capital case, Venue, Jury
and jurors.
Indictments found and returned in the Superior Court
Department on December 19, 2016, and March 31, 2017.
The cases were tried before John A. Agostini, J.
Richard J. Shea for the defendant.
Cynthia M. Von Flatern, Assistant District Attorney, for
the Commonwealth.
KAFKER, J. A jury convicted the defendant, Brittany Smith,
of two counts of murder in the first degree on theories of
deliberate premeditation, extreme atrocity or cruelty, and
felony-murder for the deaths of Thomas Harty and Joanna Fisher.
The defendant's codefendant, Joshua Hart, was tried and
convicted separately of the same charges. The defendant, who
2
was tried after Hart, was convicted on a theory of joint
venture. She was also convicted of two counts of home invasion,
two counts of armed robbery, one count of larceny of a motor
vehicle, and one count of credit card fraud. Prior to trial,
the defendant filed a motion for a change of venue, which the
trial judge denied.1
On appeal, the defendant challenges her conviction of
murder in the first degree of Harty, on the basis of all three
theories supporting the verdict, and her conviction of murder in
the first degree of Fisher, solely on the basis of deliberate
premeditation.2 She raises three principal arguments: (1) that
because of extensive pretrial publicity, the judge erred in
denying her motion for change of venue, and that, as a result of
that denial, she was not tried by an impartial jury; (2) that
the evidence was insufficient to prove her guilt as a joint
venturer of murder in the first degree of Harty; and (3) that
the evidence was insufficient to prove her guilt as a joint
1 After a hearing on various pretrial motions including the
defendant's motion for a change of venue, the trial judge
withheld ruling on the change of venue motion, indicating that
he wanted to start empanelment in order to understand the extent
of pretrial publicity and to establish whether any prejudice
stemmed from that publicity. The judge did not subsequently
specifically rule on the motion, but venue was not changed.
2 The defendant raises no arguments with respect to her
other convictions.
3
venturer of murder in the first degree on the basis of
deliberate premeditation of Fisher.
We discern no reversible error in our review of the
defendant's appeal. Additionally, after a full review of the
record, we conclude that there is no reason to grant relief
pursuant to G. L. c. 278, § 33E.
Background. We summarize the facts as the jury reasonably
could have found them, reserving certain details for later
discussion.3 The charges against the defendant and Hart stem
from a home invasion that occurred in Orange on the evening of
October 5, 2016. The defendant and Hart, who were in a romantic
relationship and who both were then residing in the Orange area,
were making a plan to leave the area. The two had been arrested
several days earlier for the larceny of the defendant's great-
grandmother's car and were also under investigation as suspects
in other incidents -- of breaking and entering -- that had
occurred in the area. Additionally, the defendant, who had a
drug addiction (and who had met Hart through her drug dealer),
was due to appear in court on October 7 in connection with the
larceny charge. The defendant's mother intended to petition the
court to have the defendant committed, or "sectioned," for
3 At trial, the jury heard audio recordings of statements
that Hart and the defendant gave, separately, to the police
after the police arrested them. The facts set forth herein are
drawn largely from those recordings.
4
substance abuse treatment pursuant to G. L. c. 123, § 35. The
defendant, however, did not want to be committed because she did
not want to be separated from her young son or from Hart. Hart,
who had a prior criminal record and outstanding warrants in
other jurisdictions, also did not want to appear in court to
face the larceny charges.
On the day of October 5, while at Hart's step-grandmother's
house, the defendant took certain medications -- Soma, a muscle
relaxant; and Gabapentin, an antianxiety medication -- to try to
avoid effects of heroin withdrawal because she did not have any
heroin. She and Hart decided that they would find a home to
break into to get money and a car so that they could leave town.
They left Hart's step-grandmother's house on foot. The
defendant then stopped at her grandmother's house on East River
Street, where she saw her mother, while Hart waited at a nearby
market; after that, the two continued on foot, walking along
East River Street. As the defendant's uncle was driving on East
River Street that evening, he saw her walking with a man.
After considering various other potential target houses,
Hart and the defendant eventually decided to break into a house
on East River Street, where they saw through a window an elderly
man seated in a chair. They also saw, in the house's garage, an
older model car, which Hart thought would be a good car to steal
because he thought it would be harder to track.
5
Hart initially tried to break into the house via a window,
with some assistance from the defendant, but ultimately the two
entered the home through the unlocked garage. In the garage,
before entering the house, they noticed that the car had keys in
it. Hart indicated that he and the defendant each picked up a
socket wrench in the garage and had the wrenches in hand when
they then entered the house. Hart also stated that, once inside
the house, he saw a knife on the kitchen counter and picked that
up because he thought it was a better weapon.
From the garage, before entering the rest of the house,
Hart saw the man -- Harty -- sitting in a chair in the living
room. Harty was ninety-five years old. Hart and the defendant
also knew, at that point, that a second person -- Fisher -- was
in the home and seated in her wheelchair, also in the living
room. Fisher was seventy-seven years old and had suffered a
spinal stroke three years earlier. Hart and the defendant made
a quick plan that, after entering the house, Hart would
"intimidate" Harty and the defendant would "intimidate" Fisher.
Hart stated that when Harty saw Hart coming into the house,
Harty stood up and started to approach him, which surprised
Hart. Hart then stabbed Harty with the knife that he had picked
up in the kitchen. He also held a pillow to Harty's face to
suffocate him. Hart initially told the police that he pushed
Fisher out of her wheelchair so that she fell to the floor,
6
stabbed her, hit her in the head with the socket wrench, and
briefly tried to suffocate her with a pillow. While this was
happening, according to what Hart initially told the police, the
defendant was searching the house for money.
The defendant, however, told the police that she had
attacked Fisher before Hart did so -- that she pushed Fisher out
of her wheelchair, put a pillow over Fisher's face and hit
Fisher with her fist through the pillow, and then attempted to
stab Fisher. Initially, the defendant told the police that she
"couldn't do it" -– that she attempted to stab Fisher in the
area of her hip and made contact with Fisher's clothes and skin
but did not "puncture" Fisher's skin. The defendant also later
acknowledged, however, during the police interview, that she may
have punctured Fisher's lung. After Hart learned from the
police that the defendant had admitted what she had done, he
also admitted to the police that the defendant had been involved
in the attack on Fisher. He stated that he had initially told
the police that only he had attacked Fisher because he wanted to
protect the defendant.4
4 Prior to trial, the defendant filed a motion in limine to
admit Hart's statements to the police, either as statements
against penal interest or as third-party culprit evidence. The
judge allowed the motion, indicating that all of Hart's
statements would be submitted to the jury. The defendant made a
reasonably calculated decision regarding the admission of Hart's
statements, and they were admitted at her own request. In
general, "the admission of a nontestifying codefendant's
7
When Hart and the defendant left the house, they took with
them money, credit cards, and cellular telephones belonging to
the victims. They also turned out the lights, closed the
shades, and disabled the house's cordless telephones. They
stopped at a nearby convenience store for cigarettes, drove to
Fitchburg where the defendant purchased heroin and cocaine, and
then drove south. They stopped at several department stores in
various States, purchasing new clothes and food; along the way,
Hart disposed of the clothes they had been wearing at the time
of the attack. He also disposed of the knife. The police
subsequently arrested them in Virginia on October 8, 2016 (three
days after the attack).
Meanwhile, on the morning following the attack, a nurse who
visited Fisher regularly at home to provide physical therapy
services arrived as scheduled. Her coworker arrived shortly
thereafter, and as they made their way into the house together,
they noticed things out of place -- among other things, they
statement, naming the defendant as a participant in the crime
. . . violate[s] the defendant's right to confrontation under
the Sixth Amendment [to the United States Constitution]."
Commonwealth v. Resende, 476 Mass. 141, 150 (2017), citing
Bruton v. United States, 391 U.S. 123, 126 (1968). Although the
issue often arises in cases where codefendants are tried
together, the admission of Hart's statements might have raised a
concern pursuant to Bruton, even where the defendant and Hart
were tried separately. Because, however, Hart's statements were
admitted at the defendant's own request, the Bruton rule is not
implicated.
8
noticed items strewn across the ramp that Fisher used to access
the house in her wheelchair, and that the door from the garage
to the kitchen, which was usually closed, was wide open. When
they entered the house, the nurse heard Fisher, who was still
alive, moaning. Fisher then called out to the nurse and told
her that there had been an "invasion" and that "they" tried to
kill her. The nurse and her coworker immediately contacted the
police, who arrived shortly thereafter and found that Harty was
dead. Fisher was brought to a hospital with multiple stab
wounds, multiple rib fractures on the right side, and a small
pneumothorax or punctured lung. Although Fisher initially
survived, she subsequently died on November 10, 2016, as a
result of the attack.5
Discussion. 1. Change of venue. In light of media
coverage of the murders, both at the time they occurred and just
prior to trial, the defendant sought a change of venue pursuant
to Mass. R. Crim. P. 37 (b), 378 Mass. 914 (1979).6 As noted,
5 The initial charges against both Hart and the defendant
included one count of murder and one count of attempted murder.
After Fisher died, Hart and the defendant were each subsequently
charged with a second count of murder.
6 Because Hart's trial took place shortly before the
defendant's trial, the pretrial publicity related to the
defendant included not only media coverage of the murders at the
time that they occurred in 2016 but also more recent coverage of
Hart's trial, including that a jury convicted him of the
murders.
9
see note 1, supra, the judge declined to rule on the motion at
the time he heard it and chose instead to wait to see whether an
impartial jury could be empanelled. More specifically, the
judge stated that he wanted to start empanelment "in order to
understand the extent of saturation of media coverage and to
establish prejudice, if any, stemming from extensive pretrial
publicity or settled community opinion."
Determining whether extensive pretrial publicity violates a
defendant's right to a trial by an impartial jury pursuant to
the Sixth Amendment to the United States Constitution and art.
12 of the Massachusetts Declaration of Rights requires a two-
step analysis. "First, we examine 'whether a change of venue
was required because the jury were presumptively prejudiced
against [the defendant].' [Commonwealth v. Toolan, 460 Mass.
452, 462 (2011), S.C., 490 Mass. 698 (2022).] If it is
determined that the jury were not presumptively prejudiced, 'we
next examine whether the defendant has shown actual juror
prejudice.' Id." Commonwealth v. Mack, 482 Mass. 311, 315
(2019). Here, the defendant does not allege, and the record
does not reflect, presumptive prejudice, and we therefore
consider only whether the defendant has shown actual juror
prejudice. See id.To demonstrate actual juror prejudice, the defendant "must
show that, in the totality of the circumstances, pretrial
10
publicity deprived [her] of [her] right to a fair and impartial
jury." Commonwealth v. Hoose, 467 Mass. 395, 408 (2014), citing
Commonwealth v. Morales, 440 Mass. 536, 542 (2003). "A
defendant's right to a fair and impartial jury does not require
that the jury members have no prior knowledge of the crime."
Morales, supra, quoting Commonwealth v. Colon-Cruz, 408 Mass.
533, 551 (1990). Where, as here, a case "has been the subject
of pretrial publicity, the voir dire procedures utilized by the
judge are particularly important." Hoose, supra, citing Toolan,
460 Mass. at 466-467.
The voir dire procedure in this case was extensive.
Indeed, the defendant does not argue otherwise; nor does she
argue that the judge failed to address any potential juror bias.
Over the course of four days, the judge conducted individual
voir dire of 139 potential jurors, during which the judge and
counsel for both parties questioned the potential jurors, each
of whom had also completed a detailed questionnaire. Of the
fourteen seated jurors, three had heard nothing about the case
prior to the trial. The remaining eleven jurors all indicated
that they had heard about the case but nothing more than what
11
the judge had set forth in the summary that he provided for the
entire venire.7,8
As each juror was selected, the judge instructed the juror
not to discuss the case with anyone, including fellow jurors;
not to read, see, or hear anything about the case; not to go to
any scenes that the judge may have described in his brief
summary of the allegations; and not to conduct any independent
research related to the case. Furthermore, throughout the
trial, the judge reminded the jurors of these instructions as
they were dismissed at the end of each day of trial, and he
7 That summary set forth the outlines of the Commonwealth's
"allegations" -- that Hart and the defendant entered the
victims' home intending to rob them and steal their car; that
Hart brutally attacked Harty, killing him; that the defendant,
and then Hart, attacked Fisher and that the attack did not
result in her immediate death; that Hart and the defendant left
her on the floor and disabled the telephones; that Fisher
crawled outside to seek help, was unsuccessful, and then lay on
the floor inside for twelve hours until she was found the next
day; that she subsequently died as a result of the attack; and
that Hart and the defendant stole money and credit cards from
the victims and fled to Virginia.
8 One of the seated jurors indicated that he was aware that
there had been another trial (i.e., Hart's trial) and that he
believed that there had been a conviction but that he had not
followed the story "too closely." Although other jurors who
indicated awareness of Hart's trial were excused, the seated
juror, who was extensively questioned, clearly stated that
knowing that information would not affect his judgment in the
defendant's case because the two cases needed to be considered
separately, i.e., the juror could remain impartial. Defense
counsel also chose not to exercise a peremptory challenge for
this juror, even though she had numerous challenges remaining at
the time.
12
inquired of the jurors whether anyone had done any of those
things when they returned to court each day (to which there were
never any affirmative responses).
The steps taken by the judge "to safeguard the defendant's
right to an impartial jury," see Hoose, 467 Mass. at 409, did
just that. The defendant argues, among other things, that a
high percentage of the venire were aware of the crimes due to
pretrial publicity, but, again, a juror need not have no prior
knowledge in order to be impartial. See Morales, 440 Mass. at
542. She also raises certain arguments that would apply to any
potential jurors, not just those exposed to the crimes through
pretrial publicity, including a concern that the nature of the
crimes would likely arouse strong sympathy for the victims and
anger at Hart and the defendant. The judge was "well aware of
the potential for prejudice in the minds of the jurors and
proceeded with extreme caution to assure that the jurors
selected were unswayed by any media publicity and were
impartial." Id. at 542-543, citing Colon-Cruz, 408 Mass. at
551. The defendant has failed to show any actual juror
prejudice or that she was tried by anything but a fair and
impartial jury.
2. Sufficiency of the evidence. "In reviewing the
sufficiency of the evidence, . . . [w]e consider whether, after
viewing the evidence in the light most favorable to the
13
Commonwealth, any rational trier of fact could have found the
essential elements of the crimes beyond a reasonable doubt."
Commonwealth v. Ayala, 481 Mass. 46, 51 (2018), citing
Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). "The
evidence may be direct or circumstantial, and we draw all
reasonable inferences in favor of the Commonwealth." Ayala,
supra, citing Commonwealth v. Rakes, 478 Mass. 22, 32 (2017).
a. Harty. The defendant argues that the evidence was
insufficient to convict her of the murder of Harty on any of the
three bases upon which the jury reached their verdict. To prove
a defendant guilty as a joint venturer under both the theory of
deliberate premeditation and the theory of extreme atrocity or
cruelty, the Commonwealth has to "prove beyond a reasonable
doubt that the defendant knowingly participated in the
commission of the crime charged, and that the defendant had or
shared the required criminal intent" (quotation and citation
omitted). Commonwealth v. Watson, 487 Mass. 156, 162 (2021).
i. Knowing participation. There was sufficient evidence
that the defendant knowingly participated in the murder of
Harty. She and Hart set out to rob someone and steal a car and
armed themselves as they proceeded to carry out their plan.
They eventually settled on the victims' house, and entered the
house knowing that two people were inside. They also did so
after seeing that the car that they intended to steal already
14
had the keys in it and could therefore be stolen without
confronting those in the house.
When they entered the house, they were each armed with a
socket wrench, and, at least according to the defendant, Hart
also had a knife that he had taken with him from his step-
grandmother's house. Once inside the home, while Hart was
stabbing Harty, the defendant was herself engaged in physically
attacking Fisher. The attacks, resulting in the deaths of both
victims, were coordinated. Before they left the victims' house,
Hart and the defendant took credit cards and cellular
telephones. They also disabled the victims' cordless
telephones, making it impossible for Fisher, who was then still
alive, to call for help. Additionally, they closed the blinds
or shades in the house so that no one could see in from the
outside. And then they fled.
ii. Criminal intent. There was also sufficient evidence
from which the jury could conclude that the defendant "shared
the mental state of malice aforethought for murder in the first
degree under the theories of deliberate premeditation and
extreme atrocity or cruelty." Watson, 487 Mass. at 163. In
order to convict the defendant on the basis of deliberate
premeditation, the Commonwealth was required to prove that she
knew that Hart intended to kill Harty and that she shared that
intent. See id. The defendant's presence does not alone
15
establish her participation, but there was sufficient evidence
that the defendant "consciously . . . act[ed] together [with
Hart] before or during the crime with the intent of making the
crime succeed." Commonwealth v. Gonzalez, 475 Mass. 396, 414
(2016), quoting Commonwealth v. Zanetti, 454 Mass. 449, 470
(2009) (Appendix). The evidence was sufficient to demonstrate a
coordinated, concerted, armed, and deadly attack against both
victims. Importantly, "a plan to murder may be formed in
seconds" (citation omitted). Commonwealth v. Tavares, 471 Mass.
430, 435 (2015).
The jury could have found that Hart intended to kill Harty.
Hart entered the home armed with a socket wrench, and a knife
from his step-grandmother's house.9 The defendant also knew that
Hart had both a knife and a socket wrench on his person when he
entered the house. When Harty stood up from his chair and
started toward Hart, Hart stabbed him multiple times. The jury
could also have found that the defendant's "actions demonstrated
'knowledge of the circumstances and participation in the crime,'
leading to the conclusion that the defendant shared [Hart's]
intent with respect to killing [Harty]." Tavares, 471 Mass. at
9 In his interview with the police, Hart stated that he
picked up the knife that he used to stab the victims from the
kitchen counter in the victims' house. He also stated that he
could not remember whether he had one knife or two. The jury
could have found that Hart came armed with a knife, as the
defendant stated in her interview with the police.
16
435. As explained supra, the defendant knew that Hart was armed
with a knife and a socket wrench. She likewise entered the
house armed, after they specifically chose the victims' house
and knowing that there were two people inside. Hart and the
defendant also coordinated their attack, with Hart attacking the
elderly male victim while the defendant attacked the elderly
female victim.
As to proving that the defendant committed murder in the
first degree on the basis of extreme atrocity or cruelty, the
Commonwealth also proved that she had the required malice: "an
intent to cause death, to cause grievous bodily harm, or to do
an act which, in the circumstances known to the defendant, a
reasonable person would have known created a plain and strong
likelihood that death would follow." Watson, 487 Mass. at 164,
quoting Commonwealth v. Sokphann Chhim, 447 Mass. 370, 377
(2006). The evidence that, among other things, Hart and the
defendant entered the house armed and that Hart used a knife to
attack Harty, while the defendant pushed, punched, and stabbed
the wheelchair-bound Fisher, was sufficient to demonstrate the
necessary intent. There was also sufficient evidence to prove
the murder was committed with extreme atrocity or cruelty.
Harty was ninety-five years old and stabbed multiple times by
Hart while the defendant attacked his wheelchair-bound seventy-
seven year old wife in Harty's presence. Hart and the defendant
17
also ensured that no one could discover or assist the victims by
disabling the telephones, turning out the lights, and closing
the shades. As they left the murder scene, the defendant called
her drug dealer, further displaying her indifference to the
victims' suffering.
iii. Felony-murder. There was also ample evidence to
support the defendant's conviction of Harty's murder on the
basis of felony-murder. For purposes of felony-murder, a jury
may "find a defendant guilty of murder in the first degree where
the murder was committed in the course of a felony punishable by
life imprisonment even if it was not committed with deliberate
premeditation or with extreme atrocity or cruelty."
Commonwealth v. Brown, 477 Mass. 805, 807-808 (2017), cert.
denied, 139 S. Ct. 54 (2018). A conviction of felony-murder
requires a finding of actual malice, and therefore,
"a defendant who commits an armed robbery as a joint
venturer will be found guilty of murder where a killing was
committed in the course of that robbery if he or she
knowingly participated in the killing with the intent
required to commit it -- that is, with the intent either to
kill, to cause grievous bodily harm, or to do an act which,
in the circumstances known to the defendant, a reasonable
person would have known created a plain and strong
likelihood that death would result."
Id. at 832 (Gants, C.J., concurring).
Harty was killed in the course of Hart and the defendant's
armed robbery of his and Fisher's home. The jury could
reasonably have concluded, based on the evidence set forth
18
supra, that the required malice was present as a part of, and
during the course of, that armed robbery -- that Hart and the
defendant entered the victims' home armed and with an intent to
cause grievous bodily harm or to do an act that the defendant
would have known created a "plain and strong likelihood" of
death.10
b. Fisher. In appealing from her conviction of the murder
of Fisher, the defendant concedes that there was sufficient
evidence of malice and argues only that there was not sufficient
evidence of deliberate premeditation. In other words, she does
not contest the conviction on the theory of extreme atrocity or
cruelty or on the theory of felony-murder; she contests only the
conviction in so far as it was based on a theory of premeditated
murder. The evidence that supported the conviction of the
murder of Harty on the theory of deliberate premeditation
similarly supports the conviction of the murder of Fisher on
that theory. The attacks against the victims, as described
supra, were concerted, coordinated, and armed. The defendant
tossed Fisher, a frail, wheelchair-bound, seventy-seven year old
10 To the extent that the defendant suggests that she did
not know what she was doing -- that she could not have knowingly
participated or formed the requisite intent for murder --
because she was "not all there" or "high," there was sufficient
evidence from which the jury could have inferred that the drugs
that the defendant had taken that day because she did not have
any heroin, Soma and Gabapentin, would not have had this effect
on her.
19
woman, out of her wheelchair, punched her and stabbed her, and
left her to die. Even if this were not sufficient evidence of
deliberate premeditation, and we conclude that it was, the
defendant would still be guilty of murder on the theories of
both extreme atrocity or cruelty and felony-murder, which,
again, she does not contest. See Commonwealth v. Samia, 492
Mass. 135, 140-141 (2023), citing Commonwealth v. Wadlington,
467 Mass. 192, 208 (2014) (conviction of murder in first degree
based on deliberate premeditation still stands even where
conviction based on felony-murder is vacated).
3. Review under G. L. c. 278, § 33E. Finally, we have
reviewed the entire record in accordance with G. L. c. 278,
§ 33E, and discern no basis to set aside or reduce the verdicts
of murder in the first degree.
Judgments affirmed.