Practice, Criminal, Duplicitous punishment, Sentence, Plea. Homicide. Where there was nothing in the record of a criminal case to indicate that the defendant's plea of guilty to second degree murder rested on a felony-murder theory, the imposition of consecutive life sentences after pleas of guilty to the murder and to a related indictment charging armed robbery was not shown to have violated the principles established in Commonwealth v. Stewart, 375 Mass. 380 (1978), and Commonwealth v. Wilson, 381 Mass. 90 (1980). [113-118]
Practice, Criminal, Duplicitous punishment, Sentence. Homicide. There was no error in the imposition of consecutive sentences on defendants who, after closing arguments at their trial, pleaded guilty to armed robbery indictments and to so much of murder indictments as charged murder in the second degree where during the course of the trial each defendant testified to facts sufficient to warrant a conclusion that the defendants, as joint venturers, knew there was a substantial likelihood someone would be shot during the course of the robbery and that they were willing participants in the acts which led to the victim's death; the principles enunciated in Commonwealth v. Stewart, 375 Mass. 380 (1978), and Commonwealth v. Wilson, 381 Mass. 90 (1980), precluding consecutive sentences for murder and an underlying felony when the basis of the murder conviction has been, or may have been, felony-murder, were not applicable in the circumstances. [305-308]
We first note the nature of the defendant's pretrial motion for exculpatory evidence because "where there has been no defense request whatsoever or only a general request for `all Brady' or `all exculpatory' evidence, the prosecutor must disclose only that evidence which is in fact material." Commonwealth v. Wilson, 381 Mass. 90, 108-109 n. 39 (1980). The reason for this, as detailed in Wilson, is that "the due process clause does not require prosecutorial clairvoyance.
Under either of his alternative arguments, petitioner seeks to bring himself within the purview of several decisions of the SJC which have gleaned from the legislative history an intent to preclude consecutive sentencing for felony murder and the underlying felony. Shabazz v. Commonwealth, 387 Mass. 291, 439 N.E.2d 760 (1982); Commonwealth v. Wilson, 381 Mass. 90, 407 N.E.2d 1229 (1980); Commonwealth v. Stewart, 375 Mass. 380, 377 N.E.2d 693 (1978). In Shabazz, the SJC vacated a life sentence for armed robbery that was to run from and after two concurrent life sentences on convictions for first degree murder.
Where there is delay in the disclosure of potentially exculpatory evidence that was part of a defendant's general discovery request, "we ask whether the prosecution's disclosure was sufficiently timely to allow the defendant 'to make effective use of the evidence in preparing and presenting his case.'" Commonwealth v. Wilson, 381 Mass. 90, 114 (1980), quoting Commonwealth v. Adrey, 376 Mass. 747, 755 (1978). Delay alone does not constitute prejudice. Commonwealth v. Stole, 433 Mass. 19, 23 (2000).
He argues that, at the very least, the case should be remanded to the Superior Court for juror interviews because the jury were exposed to an extraneous influence that was extremely prejudicial to the defendant. In Commonwealth v. Wilson, 381 Mass. 90 (1980), this court affirmed the defendant's convictions of murder in the first degree of three members of a Tewksbury family. The defendant's brother, Donald, testified in that case under a grant of immunity, and was promised he would be given a new identity.
It is, however, the defendant who has the burden of showing prejudice warranting or requiring a new trial order. See Commonwealth v. Monteiro, 396 Mass. 123, 130 (1985); Commonwealth v. Wilson, 381 Mass. 90, 110 (1980). 1. The governing principles.
We agree with this conclusion, although we note the result is the same under the law of the Commonwealth. See Commonwealth v. Wilson, 381 Mass. 90 (1980). The question then arises whether this court can and should order the restructuring of Shabazz's sentences so as to make the life sentences for murder in the first degree consecutive and the armed robbery sentence concurrent with the first life sentence for murder.
The key question before the judge was, in light of all the evidence, "whether, given a timely disclosure, [the defendant] would have been able to prepare and present [his] case in such a manner as to create a reasonable doubt that would not otherwise have existed." Commonwealth v. Wilson, 381 Mass. 90, 114, 407 N.E.2d 1229 (1980). The Commonwealth's case, although undoubtedly bolstered by the testimony of Perez and the other students, primarily consisted of Rodriguez's testimony and corroborating physical evidence.
Commonwealth v. Adrey, 376 Mass. 747, 755, 383 N.E.2d 1110 (1978). See Commonwealth v. Wilson, 381 Mass. 90, 107, 407 N.E.2d 1229 (1980), quoting United States v. Pollack, 534 F.2d 964, 973 (D.C. Cir.), cert. denied, 429 U.S. 924, 97 S.Ct. 324, 50 L.Ed.2d 292 (1976) (prosecution must disclose material, exculpatory evidence in its possession "at such a time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case"). Newly discovered evidence "warrants a new trial if that evidence ‘casts real doubt on the justice of the conviction,’ in the sense that the evidence ‘would probably have been a real factor in the jury's deliberations.’ "