Opinion
17-P-1166
03-27-2019
COMMONWEALTH v. CHITEARA M. THOMAS.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of murder in the first degree, arson, and thirteen counts of attempted murder. The Supreme Judicial Court affirmed the arson conviction, but vacated the murder in the first degree conviction as well as the attempted murder convictions; the vacated convictions were remanded for a new trial. Commonwealth v. Thomas, 469 Mass. 531, 552c-552d (2014). At the retrial, the parties stipulated that the defendant had been convicted of arson; the jury then found the defendant guilty on the lesser included charge of second-degree felony-murder, and acquitted her on the attempted murder charges. The judge dismissed the arson conviction as duplicative.
The court "conclude[d] that the judge erred in denying the motion to suppress [some, but not all of the defendant's statements and] . . . that the error was not harmless beyond a reasonable doubt with respect to the convictions of murder in the first degree and attempted murder, but was harmless beyond a reasonable doubt with respect to the conviction of arson of a dwelling house." Thomas, 469 Mass. at 532-533. The court therefore vacated the attempted murder convictions, affirmed the conviction of arson of a dwelling house, and, with respect to the conviction of murder in the first degree, gave the Commonwealth "the option of either accepting a reduction of the verdict to felony-murder in the second degree or having the conviction vacated and proceeding with a new trial on the murder indictment." Id. at 533.
The defendant now appeals, arguing that the second-degree felony-murder conviction was based upon legally insufficient evidence; former appellate counsel was ineffective; the spontaneous in-court identification of the defendant created prejudicial error; it was error for the judge to discuss with the lawyers, without the defendant's presence, whether to give a Tuey-Rodriquez charge; it was error to order the jurors to resume deliberations after a later communication from them; the denial of the defendant's motion to reduce the verdict was an abuse of discretion; and the holding in Commonwealth v. Brown, 477 Mass. 805 (2017), regarding felony-murder should be applied retroactively to this case.
See Commonwealth v. Rodriquez, 364 Mass. 87, 101-102 (1973); Commonwealth v. Tuey, 8 Cush. 1, 2-3 (1851).
Background. We summarize the facts that the jurors heard, reserving some additional facts for later discussion. In the early morning hours of July 6, 2006, residents of the first-floor apartment of a three-family house in Brockton awoke to find an orange glow coming from one of the rooms. They realized that the curtains in the room had caught fire and they attempted unsuccessfully to extinguish the fire. The fire then engulfed the residence. Several people were forced to jump from the windows; some, including small children, were dropped from the windows and others, including a one month old baby, were rescued by firefighters. The baby's mother, twenty-eight year old Sandra (Olinda) Calderon, suffered from third- and fourth-degree burns and later died from smoke inhalation.
Michelle Johnson lived in the first-floor apartment of the building and several friends, including the defendant's boyfriend, had stayed with her intermittently that summer. The defendant also had been sleeping there with her boyfriend, in Johnson's daughter's vacant room. It was a back room, with a window covered by curtains looking out into a back alleyway. Before the fire, Johnson and the defendant had argued and Johnson had told the defendant that she could not be on her premises when Johnson was not at home. On the night before the fire, the defendant had called Johnson's residence repeatedly, "upset[,] irate, crying," and threatening to burn down Johnson's house.
Andrea Pierre-Louis, who lived near Johnson's house, testified that, on July 3, 2006, she saw a woman and a man arguing. The woman was "just so upset; like she couldn't control [herself]. She was beating on him; she was yelling at him." The man went into the building and she heard the woman say, "[I]f I'm not gonna have a home, you're not gonna have a home, I'll be back to torch the place." Pierre-Louis later selected a photograph of the woman she believed she had seen on July 3.
In the early morning hours of July 6, 2006, Pierre-Louis was lying awake when she heard a noise. She testified, "I heard the young lady coming down the street." The prosecutor asked, "And when you say the young lady, are you referring to the person you identified [in the photo]?" Defense counsel objected and the judge sustained the objection "as to form." The prosecutor, rephrasing the question, asked, "Who are you referring to when you say the young lady?" Pierre-Louis responded, "The lady right there. I don't know her name." Defense counsel objected and then moved for a mistrial, arguing that he was surprised by the in-court identification and that it had been the understanding of everyone throughout the trial that there would not be an in-court identification. The judge denied the motion, saying that he was convinced the prosecutor had not intended that result and pointing out that counsel had objected to the earlier, admittedly leading, question. The judge then struck and instructed the jury to disregard "the witness'[s] last answer and gesture."
Pierre-Louis then testified that she had seen the woman in the photo with something in her hand that looked like a "lighter or something." She saw the woman walk in the alleyway to Johnson's house and put her hand in the window. She saw the room "go up, red, green, orange. It just lit up." She then saw the woman running. Afterwards, she saw a man catch a little baby, who had been tossed from a window of the house. The fire department arrived "maybe five or 10 minutes" later.
Discussion. 1. Second-degree felony-murder conviction. The defendant first contends that the victim's death was not "the natural and probable consequence" of the defendant's actions. Citing Commonwealth v. Matchett, 386 Mass. 492, 507 (1982), she argues that "the defendant's actions -- though criminal and felonious -- did not 'possess a sufficient danger to human life to justify the application of the doctrine.'" That is, "[i]t was not reasonable to expect that the building would go up in flames almost instantaneously, that no fire or smoke alarms would sound, that people would have no means of escape, and that someone would die as a result."
We disagree. "To support a conviction of felony-murder in the second degree, there must be a homicide that occurs during the commission or attempted commission of a felony; the homicide must be a 'natural and probable consequence' of the predicate felony, see Commonwealth v. Stokes, 460 Mass. 311, 315 (2011); and the felony must be either 'inherently dangerous' or 'committed so that the circumstances demonstrate "the defendant's conscious disregard of the risk to human life."' Commonwealth v. Burton, [450 Mass. 55, 57 (2007)], quoting . . . Matchett, 386 Mass. [at] . . . 508." Commonwealth v. Garcia, 470 Mass. 24, 38 (2014).
Throughout her brief, the defendant repeatedly cites the opinion of the Supreme Judicial Court in Thomas, the prior appeal of this case, for the proposition that "the felony-murder conviction was based on legally insufficient evidence." In fact, the court in Thomas determined exactly the opposite. See Thomas, 469 Mass. at 552b. The court reiterated that "[t]he elements of felony-murder in the second degree are as follows: '1. The defendant committed or attempted to commit a felony with a maximum sentence of less than imprisonment for life. 2. The death occurred during the commission or attempted commission of the underlying felony. 3. The underlying felony was inherently dangerous (or) the defendant acted with a conscious disregard for the risk to human life.' Model Instructions on Homicide 60 (2013). As the judge [in the first trial] explained to the jury, arson of a dwelling house is an inherently dangerous felony. Commonwealth v. Bell, 460 Mass. 294, 308 (2011)." Id. at 552b n.15.
In this second trial, as the trial judge and the Supreme Judicial Court had noted in regard to the first trial, the evidence of the defendant's conduct satisfies both possibilities of the final element. That is, arson has long been recognized as an "inherently dangerous felony," Bell, 460 Mass. at 308, and the defendant's actions permitted the jury to find a conscious disregard of the risk to human life. Specifically, at 5:30 in the morning, the defendant reached into the first-floor window of an unoccupied room in the back of a three-family house, and set fire to the curtains. She had stayed in the house before, and therefore had reason to know that it was occupied and that 5:30 A.M. was a time when it was reasonable to expect that at least some of the occupants would be sleeping and unable to respond quickly either to deal with the fire or to escape. As noted by the defendant, there were no visible fire escapes. The defendant earlier had threatened to set the house on fire on more than one occasion.
Nonetheless, the defendant quotes from the opinion in the earlier appeal, out of context, the following language: "[T]he defendant's manner of setting the fire (using a cigarette lighter to set fire to the curtain in one window of the house, without adding any accelerant and without making any apparent effort to block egress from the first-floor apartment) was not reasonably likely to result in . . . death."
The full quotation provides as follows: "There was sufficient evidence, apart from the erroneously admitted statements of the defendant, to permit a reasonable jury to infer an intent to kill from the defendant's earlier threats to kill Johnson, the persistent feud between them, and the time the fire was set, which was shortly after 5:30 A.M., when the residents of the house presumably were in bed. See Commonwealth v. Maloney, 399 Mass. 785, 788 (1987). But the evidence supporting a finding of an intent to kill was not overwhelming, and the defendant's manner of setting the fire (using a cigarette lighter to set fire to the curtain in one window of the house, without adding any accelerant and without making any apparent effort to block egress from the first-floor apartment) was not reasonably likely to result in Johnson's death. In these circumstances, we cannot conclude with the required confidence that admission of the defendant's statements, made over the course of more than three hours of interrogation, . . . was harmless beyond a reasonable doubt to the jury's finding that the defendant intended to kill Johnson, and therefore harmless to their guilty verdicts on the indictments charging murder and attempted murder" (emphasis added). Thomas, 469 Mass. at 552b-552c.
At the end of the prior trial, the defendant stood convicted of murder in the first degree, various counts of attempted murder, and arson. On appeal, the court ruled that most of the defendant's statements should have been suppressed and the issue became whether the erroneous admission of the statements was harmless error. The court concluded, "The jury, through their guilty verdicts, necessarily concluded beyond a reasonable doubt that the defendant intentionally set the fire and that the fire caused Calderon's death. In view of the evidence at trial, especially the defendant's confession to setting the fire during the postbooking interview, which was consistent with the neighbor's observations of the defendant moments before the house went up in flames and the fire investigator's opinion regarding the cause and origin of the fire, the erroneous admission of the defendant's July 6 and July 7 prebooking statements could not reasonably have affected these two conclusions. These findings alone (along with the undisputed fact that the house was a dwelling) were sufficient to support guilty verdicts of arson of a dwelling house and, with respect to the indictment charging murder, of the lesser crime of felony-murder in the second degree, with arson of a dwelling house as the predicate felony. The erroneous admission of the statements, therefore, was harmless as to these convictions. [Emphasis added.]" Thomas, at 552a-552b.
The language the defendant cites relates to the issue whether the evidence was sufficient to prove that the defendant intended to kill Johnson, which was necessary to sustain her convictions of murder in the first degree and attempted murder (on the theory of premeditation, not felony-murder). On the issue of whether the evidence was sufficient to sustain her conviction of second-degree felony-murder, as noted, the court held specifically that it was; moreover, the defendant concedes that the "evidence [at the second trial] was substantially the same at the first trial."
In addition, the jury properly could have found that the "natural and continuous sequence" of the fire caused Calderon's death from smoke inhalation. See Commonwealth v. Carlson, 447 Mass. 79, 83 (2006) ("Conduct is a proximate cause of death if the conduct, 'by the natural and continuous sequence of events, causes the death and without which the death would not have occurred.' Commonwealth v. Rosado, 434 Mass. 197, 202, cert. denied, 534 U.S. 963 [2001]"). Her death occurred after the arson itself, but that is not dispositive. In Commonwealth v. Morin, 478 Mass. 415, 422 (2017), the court held that a homicide and predicate felony "need only to have occurred as part of one continuous transaction," and the connection is adequate if the underlying felony and homicide occurred at "substantially the same time and place" (quotation omitted). In sum, the facts here, viewed in the light most favorable to the Commonwealth, were sufficient to support the jury's verdict of second-degree felony-murder. See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
There was evidence that the autopsy on Calderon was performed on July 10, 2006, at approximately 1:00 P.M., with a State Police officer present. She had severe burn injuries, and died from smoke inhalation.
The court in Carlson also noted, "The standard of causation under G. L. c. 90, § 24G, is the same as that employed in tort law. See Commonwealth v. Berggren, 398 Mass. 338, 340 (1986)." Carlson, 447 Mass. at 83.
The defendant next argues that the arson charge merged with the felony-murder charge and that, as a result, the felony-murder conviction must be reversed for insufficient evidence. This argument also fails.
In Commonwealth v. Fredette, 480 Mass. 75, 76, 81, 83 (2018), the court explained that "the merger doctrine limits the application of the felony-murder rule by requiring the Commonwealth to prove that the defendant committed or attempted to commit a felony that is independent of the conduct necessary to cause the victim's death. This prevents every assault that results in a homicide from serving as the predicate for felony-murder. . . . [D]etermining whether a predicate felony merges with the homicide depends on the resolution of two distinct inquiries. First, if the underlying predicate felony has an intent or purpose separate and distinct from the act causing physical injury or death, the merger doctrine is inapplicable, and the felony may serve as the predicate for felony-murder; no further analysis is required. . . . Accordingly, a felony with an independent purpose, despite containing an element of assault, is not capable of merging with the resulting killing. See Morin, . This analytical framework illustrates why we have long held that rape, arson, robbery and burglary are sufficiently independent of the homicide, . . . [but] aggravated battery toward the deceased will not do for felony murder" (quotation omitted). See Commonwealth v. Holley, 478 Mass. 508, 519-520 (2017) (Merger doctrine not applicable in an armed robbery case. "Since intent to steal does not cause a homicide, the armed robbery does not merge with the killing").
Applying this analysis to the facts of the case before us, it is clear that the merger doctrine does not apply. The predicate felony was arson, long recognized as a crime with a purpose independent of the behavior that resulted in death; clearly, the immediate purpose was to set fire to the house. See Commonwealth v. Quigley, 391 Mass. 461, 466 (1984) ("although rape, arson, robbery and burglary are sufficiently independent of the homicide, . . . aggravated battery toward the deceased will not do for felony murder").
2. Ineffective assistance of counsel. The defendant next claims that her prior appellate counsel was ineffective because he failed to argue that the evidence at trial was insufficient to prove that she had the specific intent to commit arson. In order to sustain a claim of ineffective assistance of counsel, the defendant must establish a "serious incompetency . . . [where] behavior of counsel fall[s] measurably below that which might be expected from an ordinary fallible lawyer and . . . it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). This claim fails for the simple reason, if no other, that the Supreme Judicial Court in the previous appeal found essentially the same evidence sufficient to support the defendant's conviction of arson. See Thomas, 469 Mass. at 552a-552b. See also Commonwealth v. Alcequiecz, 465 Mass. 557, 566 (2013), quoting Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983) ("trial counsel was not ineffective for failing to make an argument that had a 'minimal chance of success'").
3. In-court identification. Citing Commonwealth v. Collins, 470 Mass. 255 (2014), the defendant argues that Pierre-Louis's in-court identification unfairly prejudiced her by relieving the Commonwealth of its burden of proving she committed the crime. We disagree.
Collins stands for the proposition that "good reason" is required to admit an in-court identification by an eyewitness who has participated in a nonsuggestive pretrial identification procedure, but did not make an unequivocal positive identification of the defendant (quotation omitted). Collins, 470 Mass. at 261-262.
First, as the defendant concedes in her brief, "this was not litigated as an identification case." Defense counsel also made that representation to the judge during the trial. Also, as noted, during the trial, the defendant stipulated that she earlier had been found guilty of the charge of arson on these facts.
Defense counsel stated, "[Identification is] not the issue in the case, Your Honor. I'm trying the case on a totally different -- ."
Finally, it is clear that the Commonwealth did not intend to offer an in-court identification and that the identification was volunteered spontaneously by the witness. The trial judge so found. Thereafter the judge struck the testimony and ordered the jury to disregard it. "Except for extraordinary circumstances absent here, we presume that the jury will obey such instructions. See Commonwealth v. Cameron, 385 Mass. 660, 668 (1982); Commonwealth v. Mendes, 441 Mass. 459, 470 (2004); Commonwealth v. Thad T., 59 Mass. App. Ct. 497, 508 (2003)." Commonwealth v. Baptista, 86 Mass. App. Ct. 28, 32-33 (2014). We see no error and certainly no abuse of discretion in the denial of the defendant's motion for a mistrial. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
4. Defendant's presence. The defendant now contends that the trial judge abused his discretion when he discussed with both counsel whether to give the jury a so-called Tuey-Rodriquez instruction. The defendant was not present at that time for what the judge described as "logistic[al]" reasons, and the defendant now describes that discussion as a "critical stage[]" of the trial. During the discussion, defense counsel essentially had assured the judge that the defendant's presence was not necessary and that "she[ was] aware of what[ was] going on." Both counsel urged the judge not to give the instruction at that time; the judge agreed and, when the judge offered to repeat his ruling for the defendant, defense counsel said that he would "relay the information to her."
Some jurors had not yet reported to court.
The confrontation clause of the Sixth Amendment to the United States Constitution guarantees a defendant the "right to be present at all critical stages of criminal proceedings." Commonwealth v. Bacigalupo, 49 Mass. App. Ct. 629, 632 (2000). See Mass. R. Crim. P. 18 (a), 378 Mass. 887 (979) ("Presence of Defendant. In any prosecution for crime the defendant shall be entitled to be present at all critical stages of the proceedings"). Further, "[t]he law requires a judge to allow counsel a meaningful opportunity to assist in the framing of the response to a jury's communication before an answer is given to the jury." Bacigalupo, supra at 633.
Here, there was no evidentiary hearing. See Mass. R. Crim. P. 18 (a) (3). Nor was there communication from the jury, and the judge did not instruct them further at that time. Moreover, the judge offered to suspend the discussion of the Tuey-Rodriquez charge and reconvene when the defendant was present. Defense counsel assured the judge that he had discussed the matter with the defendant and would relay to her the information discussed. We see no abuse of discretion and certainly no harm or risk of a miscarriage of justice.
5. General Laws c. 234A, § 68C. The defendant next claims that the trial judge abused his discretion by ordering the jury to continue to deliberate after reaching an impasse on two occasions. In her view, that action violated G. L. c. 234A, § 68C, which provides,
"If a jury, after due and thorough deliberation, returns to court without having agreed on a verdict, the court may state anew the evidence or any part of the evidence, explain to them anew the applicable law to the case and send them out for further deliberation; but if they return a second time without having agreed on a verdict, they shall not be sent out again without their own consent, unless they ask from the court some further explanation of the law."
Here, the jury only once returned a communication reporting an "impasse" or deadlock. In the first instance, the jury reported, "We are currently at an impasse. We do not know how to proceed from here." The judge then, with agreement from both parties, read a modified Tuey-Rodriquez instruction. The jury next reported, in relevant part, "X amount of jurors believe in one particular verdict, however, we can all unanimously agree on a separate verdict. Are we obligated to choose the one verdict we can all agree on?" Defense counsel asked for a mistrial, but did not object when the judge responded that it did not sound like the jury were deadlocked. The judge then reinstructed the jury, reviewing the verdict slip and the various options it provided, and concluded, "[W]hatever your verdict . . . , it must be unanimous."
The entire text of the jury's note read, "As a jury, we are at an impasse. X amount of jurors believe in one particular verdict, however, we can all unanimously agree on a separate verdict. Are we obligated to choose the one verdict we can all agree on? If not, I believe we are a hung jury."
That second communication from the jury affirmatively stated they had reached at least one unanimous verdict. For that reason, § 68C is inapplicable because the jury did not "return a second time without having agreed on a verdict." And further, they did "ask the court for some further explanation of law," that is, whether they were "obligated to choose the one verdict [they] all agreed upon." As the court held in Commonwealth v. Valliere, 366 Mass. 479, 496 (1974), a return to court "to receive answers to questions asked by the jury does not bring the statute into operation." We are not persuaded by the defendant's argument that the question "can hardly be construed as 'some further explanation of the law'" because the need for a unanimous verdict had already been explained. We see no violation of the statute and no abuse of discretion. See L.L., 470 Mass. at 185 n.27.
6. Denial of motion to reduce verdict. The defendant next argues that the judge abused his discretion by failing to reduce her second-degree felony-murder conviction to involuntary manslaughter, given her sleep deprived state, exacerbated by her use of alcohol and cocaine. In Commonwealth v. Lyons, 444 Mass. 289, 291 (2005), the court explained, "'Pursuant to [Mass. R. Crim. P.] 25 (b) (2), [as amended, 420 Mass. 1502 (1995),] a trial judge has the authority to reduce a verdict, despite the presence of evidence sufficient to support the jury's original verdict.' Commonwealth v. Rolon, 438 Mass. 808, 820 (2003), citing Commonwealth v. Woodward, 427 Mass. 659, 666-667 (1998), and cases cited. . . . The purpose of such postconviction powers is 'to ensure that the result in every criminal case is consonant with justice.' Commonwealth v. Woodward, supra at 666." The court warned, however, that, "[i]n exercising this power, the judge is required 'to consider the whole case broadly to determine whether there was any miscarriage of justice' (quotations omitted). Commonwealth v. Jones, 366 Mass. 805, 807 (1975), and cases cited. As [the court has] previously cautioned, 'judge[s] should use this power sparingly,' [Woodward, supra] at 667, and not sit as a 'second jury.' Commonwealth v. Keough, 385 Mass. 314, 321 (1982). However, we will disturb a judge's order reducing a verdict only where the judge abused his discretion or committed an error of law. Commonwealth v. Woodward, supra at 668, quoting Commonwealth v. Millyan, 399 Mass. 171, 188 (1987)." Lyons, 444 Mass. at 291. After careful review, and having in mind all of the facts of this case and the applicable law, we cannot say that the judge abused his discretion when he refused to reduce the verdict to involuntary manslaughter.
7. Application of Commonwealth v. Brown. The defendant's final argument is that the court's ruling in Commonwealth v. Brown, 477 Mass. 805 (2017), should be applied to her case. In Brown, the court ruled that for "trials . . . commenc[ing] after [September 20, 2017], a defendant may not be convicted of murder without proof of one of the three prongs of malice. As a result, in the future, felony-murder is no longer an independent theory of liability for murder." Id. at 807. In the defendant's view, refusing to apply Brown retroactively, at least to cases pending on direct review, is unconstitutional.
However, the Supreme Judicial Court recently has made it clear that the holding is to be applied prospectively only. See Commonwealth v. Buth, 480 Mass. 113, 120 (2018) ("[T]he defendant seeks the benefit of our holding in . . . Brown, 477 Mass. . . . [at] 825 . . . (Gants, C.J., concurring), in which we limited felony-murder to its statutory role as an aggravating element by holding that 'a defendant may not be convicted of murder without proof of one of the three prongs of malice.' Id. at 807-808. In Brown, however, we also held that the new rule was prospective only. Id. at 807. We decline to depart from that holding"). For that reason, we, too, decline to apply Brown retroactively to this case.
Judgment affirmed.
Order denying motion to reduce verdict affirmed.
By the Court (Hanlon, Sullivan & Desmond, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: March 27, 2019.