Opinion
14-P-1700
03-28-2016
COMMONWEALTH v. DANIEL HORNE.
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
In this case, we consider whether the trial judge relied on improper factors at the defendant's sentencing hearing, and imposed a sentence for a crime of which the defendant was not convicted. We conclude that he did not and accordingly affirm.
Background. We excerpt the salient facts from the Supreme Judicial Court's decision in Commonwealth v. Horne, 466 Mass. 440, 441-443 (2013). On October 18, 2009, at approximately 1:30 A.M., eight bullets were fired at the front-room window of the victim's apartment, which was covered by venetian blinds and dark curtains. Four of those bullets struck and killed the nineteen year old victim as she stood near the window inside her own home, talking with her mother. The mother saw her daughter fall to the ground. The mother ran outside and saw the defendant running down the street toward his home. Subsequent investigation determined that cartridge casings recovered outside of the victim's apartment building were from bullets fired by the .22 caliber rifle that police retrieved from the immediate vicinity of the defendant's apartment building. A Superior Court jury convicted the defendant of murder in the second degree, possession of ammunition without a firearm identification card, and two separate counts of unlicensed carrying of a rifle outside his residence or place of business. Id. at 441. The judge sentenced the defendant to concurrent State prison terms of not less than three years nor more than five years on the unlicensed carrying of a rifle convictions; a concurrent sentence of two years in the house of correction on the possession of ammunition conviction; and a sentence of life imprisonment on the murder in the second degree conviction, to be served from and after the three to five year sentence on the unlicensed carrying of a rifle convictions.
The two convictions of unlicensed carrying of a rifle stemmed from the defendant brandishing the rifle outside the victim's home on the evening of October 17, 2009, followed by the defendant's subsequent return to that area in the early morning hours of October 18, and participation in the shooting.
The Supreme Judicial Court affirmed the convictions on the unlicensed carrying of a rifle and ammunition counts, but vacated the conviction of murder in the second degree, holding that the judge erred in failing to provide the jury an instruction on the lesser included offense of involuntary manslaughter. The Supreme Judicial Court remanded the case to the Superior Court, and gave the Commonwealth the option of retrying the defendant for murder in the second degree, or moving to have the defendant sentenced on the lesser included offense of involuntary manslaughter. The Commonwealth chose the latter course.
At the second sentencing hearing, the judge imposed a sentence of not less than fourteen years nor more than seventeen years on the involuntary manslaughter conviction, to be served from and after the three to five year sentences on the unlicensed carrying of a rifle convictions. This sentence was below the Commonwealth's recommendation, above the defendant's proposal, and within the statutory boundaries. The defendant's appeal followed.
The prosecutor requested a sentence of not less than nineteen years nor more than twenty years on the involuntary manslaughter conviction, to be served from and after the three to five year sentences on the unlicensed carrying of a rifle convictions. The defendant requested a sentence of eight to ten years on the involuntary manslaughter conviction, nunc pro tunc to the date on which the defendant was arrested, or, alternatively, a seven to nine year sentence on the involuntary manslaughter conviction, to be served from and after the three to five year sentence on the unlicensed carrying of a rifle conviction.
Discussion. The defendant claims that the judge improperly endorsed aggravating circumstances outlined by the prosecutor at the sentencing hearing, and thus improperly punished the defendant for murder in the second degree rather than involuntary manslaughter. We leave sentencing to the sound discretion of the trial judge, and do not review a sentence so long as it was not "tainted by error of law." Commonwealth v. Vega, 54 Mass. App. Ct. 249, 250 (2002). While such an error would include a judge punishing a defendant for a crime "other than that for which he stands convicted," Commonwealth v. Coleman, 390 Mass. 797, 804 (1984), a judge may rightfully consider the nature of the offense, the gravity of the results of the crime, and other aggravating circumstances while operating within the lawful bounds of his discretion. See Vega, supra at 251; Commonwealth v. Jones, 71 Mass. App. Ct. 568, 572-574 (2008). Where, as here, the defendant did not object at the sentencing hearing to the judge's allegedly inappropriate statements, we review the issue under the substantial risk of a miscarriage of justice standard. See Coleman, supra at 810 (1984); Commonwealth v. Henriquez, 440 Mass. 1015, 1016 n.1 (2003).
After the prosecutor outlined the Commonwealth's sentencing recommendation and factors purportedly justifying it, the judge immediately addressed the nature of the offense and his view of the aggravating factors. He stated:
The prosecutor referenced, inter alia, the victim's mother witnessing her daughter's death; the killing occurring in the victim's home; the victim's and mother's innocence and lack of involvement in any dispute that could have "prompted" the shooting; the shooting of eight bullets through the window to their home; the fact that "regardless of the defendant's intent," the mother's daughter was killed in her presence; and the "very fine line" between involuntary manslaughter and second degree murder.
"I recall well the words that I used at the first sentencing when I referred to this criminal episode as an unspeakable horror. Of course, my mind hasn't changed about that. I also recall highlighting the fact that this young girl was gunned down in the sanctuary of her own home. And my view of the aggravation of that fact has not changed."The judge then chastised the prosecutor for failing to follow the Supreme Judicial Court's order. He lamented that "[t]here doesn't seem to be any recognition by the Commonwealth that I'm called upon now to sentence the defendant for a different crime that has a different maximum and a very different sentencing guideline range." Before imposing the sentence, the judge reiterated as follows:
"I have been directed to impose a sentence on a crime that is very different from the one that you were initially convicted of. This is the crime of involuntary manslaughter which carries a different sentencing range. Although I understand the Commonwealth's recommendation, I also must take notice of the fact that we are here for a different purpose in sentencing for a different criminal act. Therefore, I'm not going to impose the sentence the Commonwealth requests."The defendant insists, however, that the judge's reference to the existence of "aggravating factors as outlined by [the prosecutor]," and comment that his mind had not "changed about the nature of the crime," demonstrates that the judge improperly punished the defendant for a crime for which he was not convicted. We disagree.
The transcript from the first sentencing hearing confirms that the judge had stated: "To lose a child at any time under any circumstances is, of course, a traumatic event that causes much suffering, but to have your child indiscriminately gunned down in your home, in the sanctuary of your own home in your presence is, by any measure, an unspeakable horror. Time will never heal those wounds. The defendant, of course, must be held accountable for that tragedy."
The judge's comments, viewed in their entirety and in context, reflect an acute awareness and understanding of the distinction between murder in the second degree and involuntary manslaughter, and of the Supreme Judicial Court's remand order. The defendant's attempt to transform the judge's comments into an endorsement of the prosecutor's argument is not supported on this record. To adopt the defendant's argument would require that we ignore: the judge's repeated recognition of the necessity to follow the Supreme Judicial Court's order; the judge's myriad statements regarding the different crime, different purpose, and different sentencing structure presently at issue; the judge's criticism of the prosecutor for failing to follow the Supreme Judicial Court's directive; the judge's rejection of the prosecutor's recommendation, and imposition of a lesser sentence; and the judge's explicit recognition of the "young girl [being] gunned down in the sanctuary of her own home" as constituting the aggravating factor. The defendant contended at oral argument that the judge's references to the Supreme Judicial Court's directive were "just words," whereas the brief reference to the "aggravating factors" showed reliance on improper considerations raised by the prosecutor. "We think it distorts the judge's comments to read them as signifying a de facto sentence for murder" in the second degree. Vega, 54 Mass. App. Ct. at 251. A fair examination of the judge's comments compels the conclusion that he did not rely on inappropriate factors in imposing the defendant's sentence. Contrast Commonwealth v. Franks, 365 Mass. 74, 81 (1974) (defendant improperly sentenced for forcible rape in case involving statutory rape conviction); Commonwealth v. Mills, 436 Mass. 387, 401 (2002) (resentencing by different judge necessitated by, inter alia, judge's discussion of his personal religious experiences and his commentary on defendant's failure to admit culpability). On this record, we cannot say that there was error, much less a substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Cypher, Wolohojian & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 28, 2016.