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Massachusetts Supreme Judicial Court • 2015

Commonwealth v. Scott

472 Mass. 815 | 37 N.E.3d 1054

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Takeaway

In short, this case holds that a forcible entry assault can independently support armed home invasion when a later shooting causes death, allowing felony-murder treatment without violating the merger doctrine.

Background

Scott and two companions planned to rob Nelson Pina's Brockton home, believing drugs and money were there. One man used a staged car breakdown to get Pina to the front door. Pina's girlfriend heard a struggle as Pina apparently tried to close the door while an assailant pushed his way in; gunshots followed immediately. Physical evidence showed damage and bullet holes at the door, firearms discharge evidence inside and outside the home, and Pina's body eight to twelve feet inside the house. Pina died from a single .32-caliber gunshot wound.

A jury convicted Scott in 2010 of first-degree felony murder, armed home invasion, and unlawfully carrying a firearm. The felony-murder verdict identified armed home invasion as the predicate felony, and the home-invasion conviction was dismissed as duplicative. While his direct appeal was pending, Scott sought postconviction relief, arguing that the home invasion merged with the killing, that the jury lacked a proper merger instruction, and that counsel had been ineffective.

The Superior Court judge ruled that the evidence could support two distinct assaults and thus was legally sufficient for felony murder. But because the jury had not been instructed that the assault establishing armed home invasion had to be separate from the fatal assault, the judge granted Scott a new trial on the murder charge. Scott nevertheless appealed the sufficiency ruling, seeking a required finding of not guilty that would bar retrial on double-jeopardy grounds.

Issues

Issue #1

Whether interlocutory review after the grant of a new trial extends beyond the sufficiency of the evidence supporting Scott's first trial conviction.

Holding

No. The court would review only the sufficiency issue that bore on Scott's double-jeopardy right not to be retried on legally insufficient evidence.

Reasoning

A defendant who faces retrial is entitled to a pretrial determination whether the evidence at the first trial was sufficient, because a retrial after evidentiary insufficiency would violate double-jeopardy principles. Although Scott had first been convicted and then received a new trial while his appeal was pending, his request for a finding of not guilty served the same essential function as a pretrial motion to dismiss after a mistrial.

Scott's other claims—including challenges to the denial of his suppression motion and to jury instructions on identification and accomplice liability—did not present double-jeopardy questions. Addressing them now would improperly expand narrow interlocutory review and would not promote efficiency, because those issues could be reconsidered at retrial or raised in an ordinary appeal after any later conviction.

Issue #2

Whether the evidence permitted a finding that armed home invasion was independent of the fatal assault and therefore could serve as the predicate felony for first-degree felony murder.

Holding

Yes. Viewed in the Commonwealth's favor, the evidence warranted a finding of two separate assaults: a forcible struggle to enter the home and a later fatal shooting inside it.

Reasoning

Under Massachusetts's merger doctrine, the conduct constituting the predicate felony must be separate from the personal violence that constitutes the homicide. For armed home invasion, the relevant question was whether the defendant used or threatened force against someone in the dwelling independently of the shooting that killed Pina. Without such an independent assault, the home invasion would merge with the killing and could not support felony murder.

The court applied the Latimore sufficiency standard, viewing the evidence and reasonable inferences in the light most favorable to the Commonwealth. Codling's testimony permitted a jury to find an initial physical confrontation at the door: Pina tried to close it while the intruder pushed his way inside. That struggle itself could supply the force element of armed home invasion.

A jury also could find that the fatal shot was a distinct second assault. Codling heard the struggle first and then heard gunshots; the physical evidence supported an encounter at the damaged doorway followed by shooting inside the house, where Pina's body, spent casings, and a .32-caliber bullet were found. The evidence did not compel that conclusion, which was why the missing merger instruction justified a new trial, but it was sufficient to permit the conclusion beyond a reasonable doubt.

The case differed from Commonwealth v. Stokes, where pointing guns at the victim and firing the fatal shot occurred as one inseparable event. Here, the Commonwealth's evidence supported a finding that the initial assault was the assailant's physical effort to force entry against Pina's resistance, followed by a separate shooting. The facts therefore resembled cases in which a forcible entry or threatening conduct preceded a fatal act closely enough in time to be distinct for merger purposes.

Issue #3

Whether the court should decide before retrial if felony murder could instead be predicated on armed robbery or attempted armed robbery.

Holding

No. The issue was not properly before the court, although the court explained that a completed armed robbery need not occur if the evidence supports a killing during its attempted commission.

Reasoning

Scott raised the armed-robbery issue only after briefing and had not included it in his postconviction motion. Because the court had already concluded that retrial on the felony-murder charge was permissible, it had no need to resolve a possible alternative predicate at that interlocutory stage.

The court nevertheless noted that first-degree felony murder may rest on a killing committed in the course of, or attempted commission of, a crime punishable by life imprisonment. Thus, if the Commonwealth produces sufficient evidence of armed robbery—a life felony—the jury may consider felony murder even if it finds that the robbery was attempted rather than completed. If the evidence does not warrant armed robbery, that theory cannot go to the jury.