Commonwealth v. Tyler

230 N.E.3d 409

COMMONWEALTH

v.Terrence TYLER.

SJC-12836

Supreme Judicial Court of Massachusetts, Essex.

Argued December 8, 2023.

Decided April 8, 2024.

Homicide. Felony-Murder Rule. Practice, Criminal, Retroactivity of judicial holding, Instructions to jury, Presumptions and burden of proof, Assistance of counsel, New trial, Capital case. Retroactivity of Judicial Holding. Evidence, Presumptions and burden of proof, Intent. Intent. Robbery. Assault with Intent to Rob.

Indictments found and returned in the Superior Court Department on December 18, 2014.

The cases were tried before James F. Lang, J.; a motion for a new trial, filed on March 10, 2021, was heard by him; and a second motion for a new trial, filed on April 4, 2022, was also heard by him.

James A. Reidy for the defendant.

Kathryn L, Janssen, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Kafker, & Georges, JJ.

GAZIANO, J.

At approximately 1:30 a.m on August 16, 2014, Wilner Parisse was shot through the chest and killed in his apartment in Lynn. The defendant, Terrence Tyler, was one of three participants in a plan to break into and rob the victim’s home. As part of the plan, the defendant’s friend, Monique Jones, attempted to distract the victim with sexual advances while the defendant and another friend, Rashad Shepherd, entered the apartment to steal the victim’s money and marijuana. However, the plan went awry. Jones failed to keep the victim preoccupied, leading to a physical altercation between the defendant and the victim. During the ensuing fight, Shepherd came to the defendant’s aid and fired the fatal shot.

Following a five-day jury trial, the defendant was found guilty of felony-murder in the first degree with the predicate felony of attempted unarmed robbery. He was also found guilty of assault with intent to rob. The defendant appealed. Thereafter, the defendant filed two motions for a new trial, which we remanded to the Superior Court. In his first motion, the defendant argued that the failure of his trial counsel to request an involuntary manslaughter jury instruction constituted ineffective assistance. In his second motion, the defendant requested that this court’s decision in Commonwealth v. Brown, 477 Mass. 805, 807, 81 N.E.3d 1173 (2017), cert. denied, — U.S. —, 139 S. Ct. 54, 202 L.Ed.2d 41 (2018), in which we held that "felony-murder is no longer an independent theory of liability for murder," be applied retroactively to the defendant’s case. Both motions were denied, The defendant’s appeals from the denials of his motions for a new trial have been consolidated with his direct appeal.

In his consolidated appeal, the defendant maintains that this court retroactively should apply the rule in Brown, 477 Mass. at 807, 81 N.E.3d 1173, and that his trial counsel was ineffective for failing to request an involuntary manslaughter instruction. Additionally, the defendant argues that the jury instruction on an element of felony-murder was erroneous and permitted the jury to find the defendant guilty of murder for conduct only sufficient for manslaughter. Finally, the defendant asks this court to exercise its authority under G. L. c. 278, § 33E (§ 33E), to reduce the verdict of murder in the first degree to a lesser degree of guilt.

We are not persuaded by the defendant’s arguments. First, as we repeatedly have emphasized, the rule in Brown was intended only to apply on a prospective basis. There is no reason to depart, from that limitation. Second, trial counsel did not err by failing to request an involuntary manslaughter instruction, as the pre-Brown default rule applies here -- that is, no involuntary manslaughter instruction ordinarily is required in a felony-murder case. Third, the trial judge’s instruction did not allow the jury to find the defendant guilty of felony-murder for conduct only sufficient to convict him of manslaughter, as the instruction adequately reflected the higher risk involved with felony-murder as compared to manslaughter. Last, we decline to grant relief pursuant to § 33E.

Background. 1. Facts. We recite the facts the jury could have found. See Brown, 477 Mass. at 808, 81 N.E.3d 1173; Commonwealth v. Neves, 474 Mass. 355, 356, 50 N.E.3d 428 (2016).

Although the defendant and the victim did not know each other, Jones would prove to be the linchpin that brought them together on the night of the attempted robbery, While she had been a friend of the defendant for over ten years, Jones had known the victim for "a couple of years" before the attempted robbery. The victim was a marijuana dealer, and Jones was one of his customers. Over time, they also became occasional sexual partners. It was noti uncommon for Jones to visit the victim’s apartment in Lynn, The victim lived on the second floor of three-floor apartment building. To reach the victim’s apartment, Jones would open the building’s outside door, ascend one flight of stairs, and open a second door leading directly into the apartment.

In 2014, about a month before the attempted robbery, the defendant learned through Jones that the victim was a drug dealer and that he routinely kept money and marijuana in his bedroom closet. The defendant, "desperate for money," subsequently began asking Jones how much money and marijuana the victim typically had in his possession. The defendant repeatedly broached with Jones the idea of robbing the victim, telling her that the robbery would be "easy" and an "in and out" job. Due to her friendship with the victim, Jones claimed to have brushed off these suggestions until the night of August 15, 2014.

That evening, Jones planned to go to a restaurant in Lynn that she frequented with her friend, Shea McMillan. Jones had been drinking "a lot" by the time she started to drive to the restaurant in her rental car. On a whim, Jones picked up the defendant and Shepherd on her way. After Jones parked outside of the restaurant, McMillan ran inside to use the restroom.

Jones, still in the car, shared with the defendant and Shepherd that she was upset by rumors that she had talked to the police about an unrelated matter. The defendant consoled Jones and again broached the idea of robbing the victim. Emotional and intoxicated, Jones finally agreed.

The plan was simple: Jones would drive to the victim’s apartment with the defendant and Shepherd. Jones would enter the apartment alone, leaving both the outside door and the door into the victim’s second-floor apartment unlocked. Meanwhile, the defendant and Shepherd would wait outside, giving Jones time to distract the victim by engaging in sexual activity with him. After approximately twenty minutes, the defendant and Shepherd would enter the home, steal the victim’s marijuana and money from his bedroom closet while he remained distracted, and run away.

With the plan in place, Jones, Shepherd, and the defendant entered the restaurant. Using Jones’s cell phone, both the defendant (posing as Jones) and Jones herself proceeded to send provocative text messages to the victim to coax him into meeting that night. The victim ultimately agreed and invited Jones to his apartment.

Later that evening, Jones, McMillan, Shepherd, and the defendant got back into Jones’s car and went to the victim’s apartment; Jones purposefully parked the car a few houses away.¹ On arriving, Jones let herself in, as the victim had left both doors into the apartment open for her. She then entered the victim’s bedroom, closing the door behind her, and began smoking marijuana with the victim. Soon after Jones’s arrival, and sooner than she expected, the victim "wanted to fool around heavily." Because the victim’s behavior expedited the timeline for the attempted robbery, Jones entered the bathroom directly next to the victim’s bedroom, quickly called the defendant on her cell phone, and told him to speed up the plan. In response, the defendant told her that he and Shepherd were on their way inside.

On Jones’s return from the bathroom, the victim closed and locked his bedroom door. Realizing that her associates would be unable to execute the robbery with the bedroom door locked, Jones sent a text message to the defendant instructing him to "wait." Jones then asked the victim to get her something to drink so that the victim would unlock the door. When the victim opened his door to go out into the kitchen, which was directly outside his bedroom, he walked right into the defendant.

The two men immediately began fighting, quickly moving from the kitchen into the bedroom. The victim grabbed a baseball bat near his bedroom door and started swinging at the defendant, prompting the defendant to rush him. At this point, Jones was on the bed and Shepherd was near the entry door in the kitchen, watching the fight. The fight returned to the kitchen and continued as the two men fell to the ground, with the victim biting the defendant and both men screaming. As the defendant screamed for Shepherd to help him, Jones grabbed her clothes in a panic and ran into the bathroom. Moments later, she heard gunshots.

When Jones exited the bathroom, the defendant was running down the stairs, Shepherd was gone, and the victim was bleeding out on the kitchen floor, but alive and reaching out to her. After the victim could not get up, Jones "knew he had passed" and ran out of the apartment and to her car. As she started driving away, Jones paused to pick up the defendant, whose finger was bleeding from a bite wound sustained during the fight, and they drove to Boston to spend the night. Jones did not see Shepherd again that night.

After the three participants in the robbery had fled the scene, the victim's roommate wakened in the middle of the night to find the victim lying on the kitchen floor in a pool of blood. Frantic, the roommate ran outside and managed to flag down two police officers. The roommate explained that there was someone bleeding on the floor of his apartment and brought the officers inside. There, the...