Commonwealth v. Webb, 91 Mass. App. Ct. 1105 (MA Ct. App. 2017)
Date: February 9, 2017
Commonwealth v. Webb, 91 Mass. App. Ct. 1105 (MA Ct. App. 2017)
Appeals Court of Massachusetts
February 9, 2017, Entered
2017 Mass. App. Unpub. LEXIS 136 | 91 Mass. App. Ct. 1105 | 2017 WL 527954
Commonwealth vs. Frank J. Webb.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of murder in the second degree, armed assault with intent to murder, carrying a firearm without a license, possession of ammunition without a firearm identification (FID) card, discharging a firearm within 500 feet of a building, and receiving stolen property. On appeal, the defendant focuses almost entirely on the murder in the second degree conviction, which was presented to the jury on two theories: “murder with malice” and “felony-murder in the commission of felony firearm possession.” By way of a special verdict slip, the jury found the defendant guilty based on both theories. On appeal, the defendant argues: (a) the evidence supporting a felony-murder theory was insufficient as a matter of law; (b) the prosecutor committed various errors in his closing argument; and (c) there were multiple errors in the jury instructions. We affirm.
Background. The Commonwealth presented overwhelming evidence that the defendant fired the shots that caused the victim’s death, and in his own testimony, the defendant admitted this. What remained in contest were the specific circumstances of the killing and whether these justified, or at least mitigated, the homicide.
At the center of this case is a stolen cellular telephone (cell phone). As the defendant himself admitted in his trial testimony, he acquired the cell phone knowing that it might be stolen and, together with his friend Antwan Hamilton, took it to a cell phone store in Brockton to try to get it “unlocked.” While he was inside the store, he spotted other friends outside the store and left with Hamilton to speak with them. Meanwhile, Ezequiel Fernandes, the owner of the stolen cell phone, came to the store, according to his testimony, in order to terminate service to that cell phone and to acquire a new cell phone. While inside the store, he spotted his stolen cell phone on the counter. After Fernandes was informed that the person who had brought the cell phone was outside, Fernandes angrily left the store to confront the group standing there.  What followed was an altercation in which Fernandes pushed or punched Hamilton, leaving him bloodied. The defendant then drew a gun and fired shots in the direction of Fernandes. One of those shots struck and killed a passerby. Together with Hamilton, the defendant left the scene, unsuccessfully trying to secret the gun in a bush along the way. He later was apprehended and identified.
The defendant took the stand and admitted to the shooting. He claimed that he pulled his gun only after seeing Fernandes reaching for his own gun.  He also testified that when he fired the shots, he was not trying to hit Fernandes (or anyone else) but instead intended only to fire warning shots.
Felony-murder. As noted, the Commonwealth in part pursued a theory of felony-murder, with unlawful possession of the firearm as the predicate felony. Because the unlawful possession of a firearm is not considered inherently dangerous, to rely on such an offense as the basis for felony-murder, the Commonwealth was required to prove beyond a reasonable doubt that the firearm was unlawfully possessed “with conscious disregard . . . for the risk to human life.” Commonwealth v. Ortiz, 408 Mass. 463, 466-467, 560 N.E.2d 698 (1990). The test has been stated in the following terms: does the unlawful gun possession “as embedded in the nucleus of operative facts of a particular place, time, or manner . . . so enhance the risk to surrounding lives as to reach the level of inherent danger or conscious disregard for human life deemed sufficient to constitute a predicate for felony-murder in the second degree?” Commonwealth v. Garner, 59 Mass. App. Ct. 350, 358, 795 N.E.2d 1202 (2003).
The defendant argues that the circumstances of this case are markedly different from those of the cases in which appellate courts have found that unlawful possession of a firearm rises to the level of showing “conscious disregard for human life.” See Commonwealth v. Ortiz, supra; Commonwealth v. Garner, supra.  The defendant argues that, unlike in those cases, there were no particular reasons here to believe that he brought the gun into an inherently volatile situation.
In our view, there is at least some force to this argument. We also note that the Commonwealth’s counter arguments that there was evidence showing conscious disregard of human life principally go to the defendant’s ultimate use of the gun, not to his possession of it. However, we need not resolve whether the evidence was insufficient to support a felony-murder theory, because the jury separately found the defendant guilty based on “malice,” and, for the reasons discussed below, we discern no reversible error with regard to that.  See Commonwealth v. Dykens, 438 Mass. 827, 840-841, 784 N.E.2d 1107 (2003) (where, by special verdict slip, jury found defendant guilty based on multiple aggravating factors, only one needed to support conviction).
Closing argument. The defendant claims three errors in the prosecutor’s closing argument. Because the defendant raised no objections at trial, our review is limited to whether any errors caused a substantial risk of a miscarriage of justice. Commonwealth v. Alphas, 430 Mass. 8, 13, 712 N.E.2d 575 (1999).
In regard to the defendant’s claim to having seen Fernandes in possession of a gun, the prosecutor highlighted that none of the multiple eyewitnesses had observed this. This was fully consistent with the evidence presented, and the prosecutor simply was asking the jury to draw reasonable inferences from that evidence. See Commonwealth v. Staines, 441 Mass. 521, 537, 806 N.E.2d 910 (2004). There was no error, much less a substantial risk of miscarriage of justice. 
There was one particularly intrepid eyewitness who followed the defendant and Hamilton after the shooting. In his closing, the prosecutor characterized this eyewitness as a “hero.” Although the prosecutor did not argue that because the witness was a “hero” he was more credible, the defendant argues in effect that this was implicit in the characterization. Whatever the force of this argument, any error in this regard did not cause a substantial risk of a miscarriage of justice (viewed on its own or in conjunction with other alleged errors). See Commonwealth v. Mayne, 38 Mass. App. Ct. 282, 285-286, 647 N.E.2d 89 (1995) (although prosecutor’s reference to witness’s being “hero” for testifying amounted to improper vouching, it did not create substantial risk of miscarriage of justice). 
Finally, the defendant points to the following statements by the prosecutor with regard to a videotape that showed the defendant at a shopping mall earlier in the day: “At the end of that tape, you saw the father walk in with his little kid. Right next to them was the defendant with his handgun.” The defendant argues that these statements insinuating that the defendant had put the child in danger were gratuitous comments designed to play on the jury’s emotions, while the Commonwealth responds that this was relevant to its “conscious disregard” theory. Again, whatever the force of the defendant’s argument, even if there was error in the passing references to his earlier conduct, this did not cause a substantial risk of a miscarriage of justice (viewed on its own or in conjunction with other alleged errors).
Jury instructions as to the murder in the second degree charge. The defendant also argues that the judge committed error by effectively omitting an instruction on sudden combat as a mitigating circumstance and giving an incomplete explanation of the mitigating circumstance of excessive force in defense of another. We are not persuaded.
Contrary to the defendant’s contention, he was given a proper instruction on heat of passion by sudden combat.  The judge’s charge fully and accurately explained that heat of passion would have been a mitigating circumstance and made explicit reference to sudden combat as a potential cause of heat of passion. Nothing more was necessary. See Commonwealth v. Rollins, 470 Mass. 66, 82, 18 N.E.3d 670 (2014), quoting from Commonwealth v. Sinnott, 399 Mass. 863, 878, 507 N.E.2d 699 (1987) (“judges are not required to deliver their instructions in any particular form of words”).
Similarly, it was not necessary for the judge to read the entire model instruction on excessive force in self-defense in light of the evidence presented at trial. Ibid. Where the defendant admitted to having responded to a punch against a third party by firing a gun, there was no view of the evidence that would have required the jury to weigh nuances like the available room to maneuver or the relative size of the combatants in determining whether the defendant’s use of force was disproportionate to the victim’s. The Commonwealth does concede that the judge’s articulation of the Commonwealth’s burden of proof with respect to excessive force was deficient. However, we discern no error that would cause a substantial risk of a miscarriage of justice. 
Jury instructions as to the assault with intent to murder charge. The assault with intent to murder conviction was based on the defendant’s firing at Fernandes. The defendant challenges the instructions related to that charge. Because there was no objection, our review is again limited to whether any error caused a substantial risk of a miscarriage of justice.
The Commonwealth pressed this charge as an attempted battery, not as a threatened battery, and the jury therefore was instructed only with respect to that theory. See generally Commonwealth v. Porro, 458 Mass. 526, 530-531, 939 N.E.2d 1157 (2010) (describing both theories of assault). As the defendant points out, when the judge instructed the jury on this charge, he did not separately define the term “assault.” Instead, the judge jumped straight to examples of an assault pertinent to this case:
“An assault can be committed without any bullet hitting a person. An assault can be committed without a punch, actually delivering the blow and the blow connecting. The term assault in the law includes firing a gun at another person with the intent that the bullet strike him even if it misses. That is an assault in the law.”
There is some force to the defendant’s argument that the judge erred by, in effect, defining the defendant’s actions as an “assault” (so long as the defendant intended to strike Fernandes). However, under the facts presented, this did not cause a substantial risk of a miscarriage of justice. The defendant admitted firing his gun, and there was overwhelming evidence that he fired it in Fernandes’s direction. The key question was whether the defendant thereby intended to hit and kill Fernandes. Because firing a gun at someone is a quintessential example of an assault, we are confident the jury would have come to the same guilty verdict had it been given a textbook definition of assault.  See Commonwealth v. Slaney, 345 Mass. 135, 138-139, 185 N.E.2d 919 (1962) (defining assault in case involving shots fired).
By the Court (Milkey, Massing & Sacks, JJ.), 
1. There was conflicting evidence on whether Fernandes was alone or accompanied by at least one friend.
2. One witness testified that while he himself was backing away from the altercation toward the street, he saw Fernandes reach down by his waist (at which point the witness was hit by a car). Neither that witness, nor any of the other multiple eyewitnesses to the altercation or its immediate aftermath saw a gun on Fernandes.
3. In Ortiz, the defendant brought the gun along while driving around with his brother in search of an individual against whom he had a longstanding grudge and who he believed had come to his home armed earlier that day. Ortiz, supra at 464-465. In Garner, the defendant had orchestrated a joint venture to smuggle the weapon into a crowded nightclub where shootings had occurred in the past. Garner, supra.
4. Because we do not affirm the murder in the second degree conviction based on a felony-murder theory, we need to address the defendant’s arguments that the manslaughter instructions were deficient. Compare Commonwealth v. Selby, 426 Mass. 168, 172, 686 N.E.2d 1316 (1997) (“[w]here the felony-murder rule applies, generally the defendant is not entitled to an instruction on manslaughter”).
5. We discern no merit in the defendant’s argument that this aspect of the closing ran afoul of “weapon focus” or “weapon effect,” the theory that a witness’s ability to make a reliable identification of a perpetrator is impaired in a crime of short duration if there is a weapon present. See Commonwealth v. Gomes, 470 Mass. 352, 380 n.4, 22 N.E.3d 897 (2015). Moreover, as the Commonwealth points out, where the issue is whether eyewitnesses saw a weapon on Fernandes, the weapon focus theory presents a double-edged sword.
6. Unlike in Mayne, supra, the prosecutor here did not characterize the witness as being a “hero” for coming to court to testify. Therefore, any vouching here was far less egregious than that in Mayne.
7. To the extent that the defendant argues that the instruction given might have been confusing to the jury, that confusion was of the defendant’s own making. At the defendant’s request, the judge first removed any reference to sudden combat from the jury’s written instructions, and then later, again at the defendant’s request, added the reference back in. The judge did ask for and receive confirmation, after the final revision, that all of the jurors properly understood how he was changing the instruction.
8. As the Commonwealth correctly points out, the jury rejected the evidence that Fernandes drew a gun first, which, if credited, would have warranted acquittal under pure self-defense or defense of another theories. In the alternative, the Commonwealth’s evidence showed that the defendant responded to the non-deadly punch thrown at Hamilton with the deadly force of gunfire, in which case voluntary manslaughter was not possible under an excessive force in self-defense theory. See Commonwealth v. Walker, 443 Mass. 213, 218, 820 N.E.2d 195 (2005) (“voluntary manslaughter under a theory of excessive force in self-defense becomes impossible if the Commonwealth proves that the defendant was not entitled to use deadly force”).
9. There is no merit to the defendant’s argument that the judge improperly instructed the jury that they could consider Hamilton’s actions as evidence of the defendant’s consciousness of guilt. The judge did refer to an individual in a gray sweatshirt, the clothing that Hamilton was wearing on the day of the crime. However, the judge’s instruction simply provided an illustration, which explained to the jury that the actions of an individual could be considered as evidence of consciousness of guilt in the mind of that individual only. If that distinction were not clear enough from the judge’s initial statement, he reinforced it by saying, “so those are just some examples for you to consider.”
10. The panelists are listed in order of seniority.