The defendant's codefendants, John F. Petetabella and Gerald Sousa, were also found guilty of murder in the first degree, multiple counts of armed robbery, and assault and battery by means of a dangerous weapon. See Commonwealth v. Petetabella, 459 Mass. 177, 178 & nn. 2–3, 944 N.E.2d 582 (2011)( Petetabella );Commonwealth v. Sousa, 350 Mass. 591, 593, 215 N.E.2d 910 (1966). They each received a life sentence. Of the three men, only Sousa filed a direct appeal, and this court affirmed his convictions.
Commonwealth v. Godwin, 60 Mass.App.Ct. 605, 609, 804 N.E.2d 940 (2004), quoting from Commonwealth v. Villanueva, 47 Mass.App.Ct. 905, 906, 711 N.E.2d 608 (1999). See Commonwealth v. Petetabella, 459 Mass. 177, 183, 944 N.E.2d 582 (2011). As a result, the motion judge's application of harmless error analysis, in which the weight of the evidence may be considered, was inappropriate.
We agree. Because the defendant objected to the instruction at trial, we will affirm the convictions only if the error was harmless beyond a reasonable doubt. See Commonwealth v. Petetabella, 459 Mass. 177, 189 (2011). Cf. Commonwealth v. Klein, 400 Mass. 309, 314-315 (1987) (instruction did not create substantial risk of miscarriage of justice).
We agree. Because the defendant objected to the instruction at trial, we will affirm the convictions only if the error was harmless beyond a reasonable doubt. See Commonwealth v. Petetabella , 459 Mass. 177, 189, 944 N.E.2d 582 (2011). Cf. Commonwealth v. Klein , 400 Mass. 309, 314-315, 509 N.E.2d 265 (1987) (instruction did not create substantial risk of miscarriage of justice).
In the absence of objection, “even structural errors can be waived when they are not properly preserved.” Commonwealth v. Petetabella, 459 Mass. 177, 186 n. 9, 944 N.E.2d 582 (2011) (in dicta, discussing waiver of exclusion of women from jury). Cf. Commonwealth v. Burnett, 428 Mass. 469, 476, 702 N.E.2d 803 (1998) (waiver of error in reasonable doubt instruction; “structural error objections can be waived”); Commonwealth v. Vargas, 475 Mass. 338, 357, 57 N.E.3d 920 (2016) and cases cited (waiver of right to public trial).
In fact, the Supreme Court has held that a trial court's "failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution." Kentucky v. Whorton, 441 U.S. 786, 789 (1979); see Commonwealth v. Petetabella, 944 N.E.2d 582, 589-90 (Mass. 2011) (focusing on whether overall jury charge contained "all elements required when instructing on the presumption of innocence," i.e., that guilt may not be inferred from the fact of the indictment, that the verdict must be based on evidence rather than conjecture or speculation, and that the Commonwealth bears the burden of proof beyond a reasonable doubt). The Supreme Court has found error of constitutional dimensions where trial courts refused to instruct juries about the presumption of innocence only where such refusal implicated due process principles under the particular circumstances presented.
Maldonado, supra at 753, 2 N.E.3d 145. A judge's responsibility for the safety, security, and integrity of the court room requires an acute attention and an appropriate response to the risks of violence and intimidation. Maldonado, 466 Mass. at 753, 2 N.E.3d 145. See Commonwealth v. Petetabella, 459 Mass. 177, 187, 944 N.E.2d 582 (2011) (trial judge has discretion to take into account special circumstances like security concerns to protect court room and its occupants). That response may be proactive as well as reactive.
"To find a defendant guilty of felony-murder, a jury are only required to find that the defendant intended to commit an underlying felony during which a death occurred." Commonwealth v. Petetabella, 459 Mass. 177, 191 (2011). "[I]n the context of felony-murder, a defendant who uses a deadly weapon in the course of committing [a felony] will be held responsible for the injuries or deaths that occur as a consequence, regardless of his intent to inflict those consequences."
Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). See Commonwealth v. Petetabella, 459 Mass. 177, 181, 944 N.E.2d 582 (2011). See also Commonwealth v. Melo, 472 Mass. 278, 293, 34 N.E.3d 289 (2015), quoting Commonwealth v. Thomas, 469 Mass. 531, 539, 21 N.E.3d 901 (2014) ("We review de novo any findings of the motion judge that were based entirely on the documentary evidence, [such as] the recorded interviews of the defendant").
"To find a defendant guilty of felony-murder, a jury are only required to find that the defendant intended to commit an underlying felony during which a death occurred." Commonwealth v. Petetabella, 459 Mass. 177, 191, 944 N.E.2d 582 (2011). "[I]n the context of felony-murder, a defendant who uses a deadly weapon in the course of committing [a felony] will be held responsible for the injuries or deaths that occur as a consequence, regardless of his intent to inflict those consequences."