Commonwealth v. Malone

100 Mass.App.Ct. 399

177 N.E.3d 560

COMMONWEALTH

v.Patrick MALONE.

19-P-916

Appeals Court of Massachusetts, Suffolk.

Argued March 10, 2021.

Decided October 13, 2021.

William S. Smith, Northboro, for the defendant.

Erin D. Knight, Assistant District Attorney, for the Commonwealth.

Present: Green, C.J., Neyman, & Grant, JJ.

NEYMAN, J.

Following a trial in the Superior Court, a jury convicted the defendant, Patrick Malone, of murder in the second degree as a joint venturer, and unarmed robbery.¹ On appeal, the defendant challenges the sufficiency of the evidence, the jury instruction on joint venture, the prosecutor's closing argument, a statement by an immunized witness, and the admission in evidence of a photograph depicting the defendant's global positioning system (GPS) bracelet. We affirm the judgments and the order denying the defendant's motion to set aside or reduce the verdict.²

Background. 1. Facts. We recite the facts adduced at trial, reserving certain details for later discussion. In 2012, the defendant lived at 61 Faneuil Street in the Faneuil Street housing development in the Brighton section of Boston. The defendant's friend, Robert Williams, lived at 41 Faneuil Street, which was also in the Faneuil Street housing development. The defendant attended elementary school with Williams, and they had been friends for years.

In 2012, the victim, LeRoy Cooper, lived across the street from the Faneuil Street housing development.³ The victim was known to sell marijuana and had previously sold marijuana to a friend of the defendant. The defendant had also attempted to purchase marijuana from the victim in the past.

On the afternoon of November 19, 2012, the victim was visiting his friend, Salar Yaraghi, at Yaraghi's apartment at One Longfellow Place in downtown Boston. The victim's acquaintance, Athanasios Paloukos, later joined them. Throughout that same day, the defendant and the victim communicated about a drug purchase via text messages and cell phone calls.⁴ The defendant wanted to buy marijuana from the victim, but claimed that he could not get a ride to Longfellow Place and thus needed the victim to come to Brighton. The victim told the defendant that he could not do so because he was "chillin by the garden,"⁵ and "waiting on peeps too." The defendant again asked the victim to come to Brighton. The victim responded that the defendant could get a ride or take the "T." The victim also offered to pay for the defendant's taxicab fare for his return trip to Brighton. The defendant then claimed that he could not leave due to his brother's curfew. Following additional texts and cell phone calls, the victim agreed to travel to Brighton. He texted, "Ok we are coming," to which the defendant responded, "Ight same place." What the defendant did not mention to the victim was that he was wearing a GPS bracelet, which tracked his movements and required him to be within a particular distance or "inclusion zone" at or near his residence on Faneuil Street. In the meantime, the defendant and Williams had multiple communications on their cell phones in the minutes leading up to the crime.

At approximately 5 P.M. , the victim, Yaraghi, and Paloukos drove to Brighton in a red, rented "Zipcar." Yaraghi drove the car, the victim rode in the front passenger's seat, and Paloukos rode in the rear seat directly behind Yaraghi. All three were unarmed. The victim, who was communicating on his cell phone with the defendant, provided directions to Yaraghi during the ride. Yaraghi parked near the Faneuil Street housing development and picked up the defendant and Williams. The defendant sat in the rear middle seat while Williams sat in the rear seat directly behind the victim. Yaraghi started to drive and took a right turn onto Market Street. Either the defendant or Williams advised Yaraghi to turn onto Morrow Road, "a quiet road" off Market Street. Yaraghi did so and then parked on Morrow Road.

Inside the parked car, the victim passed a rectangular one-foot long bag of marijuana to the defendant. The prearranged sale price for the marijuana was $4,000.⁶ The victim "mentioned an amount of money," but neither the defendant nor Williams paid him. Instead, Williams opened the rear passenger's side door and left the car. The defendant then left the car, too, with the marijuana. According to Paloukos, the defendant and Williams "exit[ed] together." "[I]t was just a robbery, like they were just gonna run off at that point, but they weren't moving fast." The victim, Yaraghi, and Paloukos "started voicing concerns" and asked what was going on. Immediately thereafter, Williams reached back inside the car, pointed a black gun behind or under the headrest of the front passenger's seat, and fired a shot at the victim. Yaraghi fled from the vehicle while Paloukos "rolled up in a ball." The defendant and Williams fled from the scene and ran back to Williams's home on Faneuil Street.⁷

After the defendant and Williams fled, Yaraghi returned to the scene. The victim was "really quiet at first," but then said, "Oh my God, I think I've been shot." He was "like crying and just kind of making like, you know, noises.... [His] breathing was getting very heavy." "He kept on holding his chest and gasping." Yaraghi drove to try to find a hospital, but ultimately pulled the car onto a dead-end street and called 911.⁸ Boston police officers and emergency medical services arrived there and attempted to render aid. The victim had a gunshot wound to the left chest area; he had no pulse or heartbeat, and he was not breathing. The emergency medical technicians "declared him deceased at the scene."

Paloukos and Yaraghi spoke to Boston Police Detective Mark Maregni soon after the incident.⁹ Paloukos described and showed Detective Maregni the route they had traveled earlier and directed the detective to the area on Morrow Road where the shooting occurred. Boston police detectives found a single shell casing there. Two or three days later, Boston police detectives located a spent bullet near the scene on Morrow Road.

Paloukos and Yaraghi subsequently identified the defendant and Williams from photographic arrays. Through their investigation, Boston police detectives learned that the defendant had been wearing a GPS bracelet and was at the crime scene at the critical time. See note 7, supra. They further obtained the cell phone records of the defendant, Williams, and the victim, which showed that the defendant and Williams had been in continual communication on their cell phones leading up to the shooting, and in the days following the crime.

2. Procedural and postjudgment matters. Before trial, a judge (not the trial judge) allowed the defendant's motion to sever his case from Williams's.¹⁰ The Commonwealth proceeded to trial on the theory that the defendant was guilty of murder in the first degree as a joint venturer on a theory of felony-murder, with a predicate felony of armed robbery. The defendant moved before trial to dismiss so much of the indictment as asserted murder in the first degree on the ground that there would be no evidence that the defendant knew that Williams was armed, but the judge deferred ruling on the motion. Following the close of the Commonwealth's case, the judge allowed the defendant's motion for a required finding of not guilty to the extent that he reduced the charge of murder in the first degree to murder in the second degree and reduced the charge of armed robbery to unarmed robbery. In his final charge, the judge instructed the jury on murder in the second degree based on malice. He also instructed the jury on the lesser included offense of involuntary manslaughter.

After the judgments entered, the defendant filed a "motion to set aside the jury verdict and order the entry of a finding of not guilty or in the alternative reduce the verdict to guilty of the lesser included charge of involuntary manslaughter" (postjudgment motion). The judge denied the postjudgment motion in a written decision. He concluded, inter alia, that the jury could have found that the defendant "initiated the drug deal, an inherently dangerous activity," and "brought Williams to quash any anticipated resistance" and "inflict harm on the [victim] if the robbery went awry." The defendant "assumed a successful robbery of drugs would lead to violence, or at least resistance." He "then stole a substantial quantity of marijuana from the [victim] [and] ... exited the vehicle without paying for it." Following the shooting, he "fled with [Williams] to his residence." The judge repeated his earlier determination that the evidence did not prove that the defendant knew that Williams was armed, and the judge expressed concern that he "may be masking the second degree murder conviction with activity that could be more reasonably ... charged as involuntary manslaughter." Nonetheless, he concluded that the Commonwealth had met its burden to prove murder in the second degree on a theory of third prong malice, as it was "probable that the jury concluded the defendant intended to do an act which, in the circumstances known to [him], a reasonable person would have known created a plain and strong likelihood that death would result." The defendant appeals from the judgments and from the order denying the postjudgment motion.

Discussion. 1. Sufficiency of the evidence. The defendant argues that the Commonwealth presented insufficient evidence to sustain convictions of unarmed robbery and murder in the second degree. We apply the familiar test to determine "whether, after viewing the evidence in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis and citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). "If, from the evidence, conflicting inferences are possible, it is for the jury to determine where the truth lies, for the weight and credibility of...