Opinion
10-P-2157
03-30-2012
COMMONWEALTH v. ANDY O. REVERON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After the defendant arranged a cocaine transaction, one of the buyers was shot and killed by sellers to whom the defendant had introduced them. A jury found the defendant guilty of second degree murder, G. L. c. 265, § 1, and conspiracy to violate the controlled substance laws, G. L. c. 94C, § 40. Following the verdict, the trial judge granted the defendant's renewed motion for a required finding of not guilty on the murder charge. Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1501 (1996). The Commonwealth appeals the grant of that motion, arguing that there was sufficient evidence to convict the defendant on a felony-murder theory. The defendant cross appeals from his conspiracy conviction. We affirm. 1. The felony-murder charge. The Commonwealth's felony-murder theory was based on joint venture in attempted cocaine trafficking as the predicate felony. In order to obtain a conviction on that theory, the Commonwealth was required to prove that: (1) a homicide was committed; (2) during the commission or attempted commission of a felony; and (3) the felony was either 'inherently dangerous or committed in conscious disregard of risk to human life.' Commonwealth v. Stokes, 460 Mass. 311, 314- 315 (2011). We consider the evidence in the light most favorable to the Commonwealth to determine whether a rational trier of fact could have found each element of the crime proven beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
We agree with the trial judge that there was insufficient evidence to prove beyond a reasonable doubt that the defendant committed an inherently dangerous felony or acted with conscious disregard of a risk to human life. Felonies characterized as inherently dangerous under our case law include common law felonies of arson, rape, burglary, and robbery, Commonwealth v. Matchett, 386 Mass. 492, 505 n.15 (1982), as well as statutory felonies such as armed home invasion. Commonwealth v. Doucette, 430 Mass. 461, 468 (1999). The Commonwealth acknowledges that no Massachusetts case has held that drug trafficking is an inherently dangerous felony, and we decline to hold otherwise now. Although our cases recognize that drug transactions often result in violence, see e.g., Commonwealth v. Cannon, 449 Mass. 462, 470 (2007), the Supreme Judicial Court has refused 'to adopt a blanket rule that all persons suspected of drug activity are to be presumed armed and dangerous.' Commonwealth v. Washington, 449 Mass. 476, 482-483 (2007).
Deciding as we do, we need not consider the sufficiency of the remaining aspects of the Commonwealth's proof.
Where, as here, the predicate felony is not inherently dangerous, the Commonwealth must prove that it was committed with 'conscious disregard for the risk to human life.' Matchett, 386 Mass. at 508. 'Whether a particular felony . . . was committed with conscious disregard for life is a largely fact-dependent inquiry resting 'upon a case-by-case analysis of the nucleus of facts in which that felony is embedded.' A particular felony may be committed with conscious disregard in one factual context, but without it in another.' Commonwealth v. Lopez, 80 Mass. App. Ct. 390, 395 (2011), quoting from Commonwealth v. Garner, 59 Mass. App. Ct. 350, 357 (2003). The facts to which the Commonwealth points -- the size of the drug transaction, the fact that the parties were strangers, and the fact that each participant brought 'back-up' -- are characteristics of drug transactions generally and do not alone suffice to prove beyond a reasonable doubt that the defendant acted with conscious disregard for a risk to human life. There is no evidence that the defendant knew that any of the participants was armed or that he had any other indication that violence was likely. Contrast id. at 358 (joint venture in unlawful possession of firearm demonstrated conscious disregard where defendant helped smuggle a gun into a crowded club where alcohol was present and shots had been fired in the past).
2. The conspiracy charge. The defendant argues that there was insufficient evidence that the two unknown sellers shared his intent to traffic in cocaine. See Commonwealth v. Nee, 458 Mass. 174, 180-181 (2010) (conspiracy requires proof that the defendant joined with another or others with the intent to commit an illegal act). Taking the evidence, as we must, in the light most favorable to the Commonwealth, we are not persuaded. The evidence showed that, looking to satisfy the buyers' request to buy cocaine, the defendant called the sellers, who arrived shortly thereafter. The defendant represented to the buyers that the sellers could get them the cocaine they wanted. There was a discussion among the buyers, the sellers, and the defendant about terms and quantity. Once an agreement was reached, the sellers told the buyers (in the presence of the defendant) to get in the car so they could drive together to get the cocaine. Every aspect of the negotiations and preparations -- including the buyers' behavior and reactions -- was consistent with a finding that the sellers shared the defendant's intent to sell cocaine.
The defendant also argues that the trial judge erred in denying his request for an instruction on 'feigned intent.' Superior Court Criminal Practice Jury Instructions § 4.5.1(a)F (Mass. Cont. Legal Ed. 1st Supp. 2003). We review the defendant's preserved objection to determine whether there was error and, if so, whether the error was prejudicial. Commonwealth v. Rogers, 459 Mass. 249, 252-253 (2011). There was no error. The trial judge properly instructed the jury on conspiracy, giving the model instruction. See Superior Court Criminal Practice Jury Instructions § 4.5 (2003). The judge also gave an additional clarifying instruction on intent, specifying that 'both parties, the alleged conspirators, must have agreed to distribute cocaine.' The fact that the judge did not use the exact phrase 'feigned intent' did not render the instruction inadequate. See Commonwealth v. Torres, 420 Mass. 479, 484 (1995) ('We do not require that any specific words be spoken in a jury instruction').
For these reasons, the order granting the motion for a required finding of not guilty on the second degree murder charge is affirmed, and the judgment on the conspiracy charge is affirmed.
So ordered.
By the Court (Cypher, Cohen & Wolohojian, JJ.),