Opinion
20-P-1394
03-07-2022
COMMONWEALTH v. Devon MCLEOD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Devon McLeod, directly appeals from his conviction, by jury, of home invasion, G. L. c. 265, § 18C. The jury acquitted the defendant of several other charges, including multiple firearm-related offenses, and acquitted his codefendant, Kasiem Smith, of the same firearm-related charges as well as home invasion. On appeal, the defendant contends that his conviction must be set aside (1) as legally inconsistent with the jury's "not guilty" verdicts on the firearm-related charges, and (2) because the trial judge gave inadequate jury instructions. Concluding that the verdicts are not legally inconsistent and that the jury instructions were adequate, we affirm.
The other charges included four counts of armed assault in a dwelling, G. L. c. 265, § 18A ; four counts of armed robbery, G. L. c. 265, § 17 ; seven counts of assault by means of a dangerous weapon, G. L. c. 265, § 15B ; unlawful possession of a firearm, G. L. c. 269, § 10 (a ) ; unlawful possession of ammunition, G. L. c. 269, § 10 (h ) ; unlawful possession of a loaded firearm, G. L. c. 269, § 10 (n ) ; possession of a firearm in the commission of a felony, G. L. c. 265, § 18B ; and possession of marijuana with intent to distribute, G. L. c. 94C, § 32C (a).
Background. Based on the evidence at trial, the jury could have found that, on August 29, 2013, at about 11 P.M. , two masked men attacked Brianna Sargent outside her apartment in Worcester, causing her to scream, and -- with a gun to her head -- forced her to her apartment's back door. In the apartment were Sargent's boyfriend, Zachary Bergeron, Bergeron's uncle, Alphonse Roberts, and Sargent's roommate, Jonathan Ren. Bergeron heard Sargent scream outside, so he grabbed a kitchen knife and called the police. With a gun to her back, under orders, Sargent used her keys to open the door into the apartment's kitchen, where she and the masked men encountered Bergeron and Roberts. Bergeron saw each masked man pointing a gun at Sargent, while Roberts saw only one gun. The masked men ordered Sargent, Bergeron, and Roberts to sit on the kitchen floor. The taller and thinner of the masked men watched over the victims in the kitchen, while the defendant, shorter and stocky, went into Ren's bedroom.
Eventually, a cell phone rang, blue lights were visible outside the apartment, and the masked men "freaked out that the cops were coming" to the apartment. Three Worcester police officers arrived outside the apartment and heard a commotion and angry male voices coming from inside, including a male voice yelling, "Put your fucking hands up." Two officers went to the front of the apartment building while a third remained at the back door. Inside, the defendant returned to the kitchen, then both masked men opened the apartment's back door. Seeing an officer's flashlight, they retreated, shut the door, and ran into Ren's bedroom. Sargent, Bergeron, and Roberts hid in the laundry room.
Soon after, officers heard glass shatter, saw an air conditioner fall out of a side window, saw muzzle flashes, and heard two gunshots. The victims also heard gunshots. The police then saw the defendant jump from the window, yelling, "They are shooting at me." He was arrested. No gun was found on his person. The second masked man, tall and thin, emerged from the window with a gun in his hand, dropped the gun to the ground, jumped from the window, and ran away; officers lost him. On the same street, the officers subsequently arrested Smith, who was sweaty and fit the description of the second intruder.
Police officers recovered a gun and a pocketknife on the ground outside of the apartment. Police officers also found a gun in a closet inside the apartment, and a second knife.
Discussion. 1. Inconsistent verdicts. The defendant contends that his home invasion conviction must be set aside because it is legally inconsistent with the jury's "not guilty" verdicts on the firearm-related charges. "Inconsistency of verdicts in criminal cases is not a matter for judicial inquiry unless the inconsistent verdicts are impossible as matter of law." Commonwealth v. Graves, 35 Mass. App. Ct. 76, 88 (1993). Legally inconsistent verdicts occur when, "removed from the factual context of the particular case, the government could not possibly have proved the elements of both crimes with respect to the defendant." Commonwealth v. Elliffe, 47 Mass. App. Ct. 580, 584 (1999). "[T]he rule is well established in criminal cases that mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury." Commonwealth v. Scott, 355 Mass. 471, 475 (1969), and cases cited. See Graves, supra at 88-89 (guilty verdict on charge of aggravated rape not legally inconsistent with verdict of not guilty on charge of assault by means of dangerous weapon). See also Commonwealth v. Hamilton, 411 Mass. 313, 323-324 (1991) (guilty verdict of armed robbery by means of shotgun could stand notwithstanding that same jury found defendant not guilty of carrying dangerous weapon, to wit: same shotgun).
In this case, the defendant's acquittal of the firearm-related charges is not legally inconsistent with a conviction of home invasion. Contrast Commonwealth v. Medeiros, 456 Mass. 52, 57-60 (2010) (conviction of one member of conspiracy could not stand when other coconspirators acquitted because crime requires multiple individuals). The jury could permissibly have concluded that the defendant had a weapon other than a firearm (knives were found in the apartment and on the ground outside the window); found that he had a gun based on the testimony of the witness who saw each masked intruder with a gun; or found the defendant liable as a coventurer for a gun used by the other masked man. See Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009).
We also discern no factual inconsistency in the jury's verdict, but even if we did, factual inconsistencies are not grounds for setting aside a conviction in any event. Commonwealth v. Resende, 476 Mass. 141, 147 (2017). Lastly, speculation as to the jury's verdict is ill-advised and often fruitless. See Elliffe, 47 Mass. App. Ct. at 586 ("A finding of not guilty can result from factors having nothing to do with actual guilt"). See also Commonwealth v. Cerveny, 387 Mass. 280, 285 (1992) ("the jury may assume the power to acquit out of compassion or prejudice"). Because the home invasion conviction is not inconsistent with the verdicts of not guilty on the firearm-related charges, we will not disturb the jury's verdict.
2. Jury instructions. The defendant contends that the judge failed to properly instruct the jury by not explaining to the jury that it had to find that the defendant was armed with a gun in order to convict him of home invasion. "We evaluate jury instructions as a whole and interpret them as would a reasonable juror." Commonwealth v. Marinho, 464 Mass. 115, 122 (2013). "We do not require that judges use particular words, but only that legal concepts are properly conveyed." Id. "Because the defendant did not object to the jury instruction at trial, we review his claim to determine first whether there was error, and if so, we then inquire whether the error created a substantial risk of a miscarriage of justice." Id. Since the judge properly instructed the jury on home invasion, there is no error.
The defendant raised this claim in his new trial motion and the judge rejected it, concluding that he was not required to instruct the jury in the manner requested by the defendant, that he appropriately followed the model jury instruction on home invasion, and that he properly instructed the jury on what constitutes a dangerous weapon. The defendant does not appeal the order denying his motion for a new trial.
The instruction on home invasion drew from the text of G. L. c. 265, § 18C, and the model jury instruction on home invasion. See Massachusetts Superior Court Criminal Practice Jury Instructions § 4.2 (Mass. Cont. Legal Educ. 2018). The judge was not required to instruct the jury that it had to find that the defendant was armed with a gun to convict him of home invasion. On the element pertinent to the defendant's claim -- armed with a dangerous weapon -- the court instructed that the jury was required find that the defendant was armed with a dangerous weapon at the time of entry to convict him. This was sufficient. See G. L. c. 265, § 18C. The judge also provided an appropriate and comprehensive instruction on what constitutes a dangerous weapon and included guns in the instruction. See Commonwealth v. Tevlin, 433 Mass. 305, 312 n.3 (2001). Viewed as a whole, the charge plainly conveyed that the Commonwealth was required to prove that the defendant was armed with a dangerous weapon at the time of entry and was a proper and accurate recitation of the law.
Judgment affirmed.