NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Horne 466 Mass. 440 (2013)

CONTRIBUTING EDITOR: FELICIA FLAHIVE I. Procedural History

The defendant, Daniel Horne, was convicted by a Superior Court jury of second-degree murder, possession of ammunition without proper firearm identification (FID), and two separate counts of unlicensed carrying of a rifle in an unpermitted area. 1 The defendant appealed, arguing for reversal of his convictions due to the numerous errors that occurred at trial.2 The Supreme Judicial Court of Massachusetts (SJC) vacated and set aside the conviction of second-degree murder, but affirmed the other convictions.3 II. Facts On October 16, 2009, the defendant s television was removed from his apartment in Springfield Massachusetts. 4 The defendant suspected that the individual who took his television was Joseph Darco. 5 On October 17, 2009, Darco attended a birthday party at the apartment where the victim, nineteen-year-old Brittany Perez, resided.6 This apartment was on the first floor of a building and a few houses away from the defendant s apartment.7 Shortly after sunset, a party guest observed the defendant holding a gun after hearing someone shout, I want my TV.8 The defendant approached Darco, who was standing in front of the victim s

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Commonwealth v. Horne, 466 Mass. 440, 441 (Mass. 2013). Id. Id. Id. at 441-442. See id. at 442. Id. Commonwealth v. Horne, supra. Id.

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apartment, and asked for Joe.9 While speaking with Darco, the defendant pulled out a large gun from his pants, which was identified as a .22 caliber rifle.10 The two spoke briefly and the defendant placed the rifle back in his pants and returned to his apartment. Darco returned inside to the birthday party.11 After a few hours had passed, the defendant was seen in front of the victims house with Ernest Haley and two other men. 12 Due to the disruptive commotion the four men were causing, the victims mother told them to take that down the street.13 They complied and headed towards the defendants apartment.14 At approximately 1:30 A.M. after the party ended, the victim and her mother stood inside the first-floor apartment in front of a window with a street view.15 The window was covered by venetian blinds and dark curtains.16 After hearing noises, the victims mother turned around and saw her daughter collapse onto the floor.17 The victims mother ran outside and saw the defendant running towards his apartment. 18 At the same time, one of the neighbors woke up to pop sounds and saw the defendant and Haley coming from the direction of the victims apartment.19 The neighbor also noticed an exchange between the two men, as though one had handed something to the other.20 The neighbor witnessed this from his bedroom window, facing a driveway that ran between his building and the defendants building.21 The last thing the neighbor saw was the two men place something next to the garage at the end of the driveway.22 Shortly after 1:30 A.M., Springfield police officers arrived at the scene of the crime.23 The victims mother provided the police officers with information for them to locate the defendant and Haley inside the

Id. Id. 11 Id. 12 Id. 13 Commonwealth v. Horne, supra. 14 Id. 15 Id. 16 Id. 17 Id. 18 Id. 19 Commonwealth v. Horne, supra. 20 Id. 21 Id. 22 Id. 23 Id.
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defendants apartment.24 After examining the cartridge casings found outside the victims apartment building, the police determined that the bullets fired were from the .22 caliber rifle recovered from the area near the defendants building.25 The police determined that eight bullets were fired at the window of the victims apartment, four of which struck and killed the victim.26 III. Issues Presented 1. Whether the defendants first-degree murder should be reversed because the judge erred in declining to instruct the jury on involuntary manslaughter.27 2. Whether the judge erred by instructing the jury on joint venture liability.28 3. Whether the judge abused his discretion in allowing the prosecutor to impeach a defense witnesss credibility by eliciting testimony from that witness concerning her failure to bring exculpatory information to the attention of the police.29 4. Whether the two separate convictions of the unlicensed carrying of a rifle are duplicative.30 IV. Holdings and Reasoning 1. The judge erred in declining to instruct the jury on involuntary manslaughter,
[W]here the jury reasonably could have found that the defendant did not know the room was occupied when he fired the rifle at the window and, therefore, that the defendants conduct was wanton or reckless but not necessarily conduct that, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would follow.31

An involuntary manslaughter instruction must be given when the

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Id. at 442-443. Commonwealth v. Horne, supra at 443. Id. at 441. Id. Id. Id. at 441, 447. Id. at 441. Commonwealth v. Horne, supra.

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evidence, in light most favorable to the defendant, permits a reasonable jury to find wanton and reckless conduct rather than conduct with a plain and strong likelihood of death resulting.32 In viewing the evidence in a light most favorable to the defendant, the SJC found that when the defendant fired his rifle at the window, it was 1:30 A.M., the party had ended, and the window was covered by venetian blinds and dark curtains.33 The jury could have found that a reasonable person under these circumstances would have known and appreciated that firing at the window created a high degree of likelihood that substantial harm would result to another, but not a plain and strong likelihood of death.34 As a result, the judges failure to instruct the jury on involuntary manslaughter entitles the defendant to a new trial on the indictment charging seconddegree murder.35 2. The judge did not err by instructing the jury on joint venture liability because there was sufficient evidence, including evidence used by the defendant as part of his defense, that another person was involved in the shooting.36 Further evidence supporting joint venture included the following: (1) the jury heard evidence that Haley and the defendant were together prior to the shootings; (2) the defendant and Haley discussed the theft of the defendants television; (3) Haley accompanied the defendant during the second visit to the victims apartment; (4) after the shooting, the defendant and Haley were seen coming from the direction of the victim s apartment and working together to hide what the jury could have inferred was the rifle; and (5) the defendant and Haley were also located at the defendants apartment by the police.37 The SJC articulated that since joint venture is not a crime or an element of a crime, the participation of another person does not become an element of the offense or a defense. 38 Therefore, the judge appropriately instructed the jury on joint venture because the defendant met the participation and intent requirements of the offense and there was some evidence that the defendant acted with Haley during the incident.39 3. The judge did not abuse his discretion by allowing the prosecutor to

32 Id. at 444 (citing Commonwealth v. Braley, 449 Mass. 316, 331 (2007), quoting Commonwealth v. Jenks, 426 Mass. 582, 585 (1998)). 33 34 35 36 37 38 39

Id. Id. Id. at 445-446. Id. at 446 & n.4 (citing Commonwealth v. Smith, 460 Mass. 385, 389 (2011)). Commonwealth v. Horne, supra at 446. Id. (quoting Commonwealth v. Fluellen, 454 Mass. 449, 468 (2010)). Id. at 446-447.

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impeach a defense witnesss credibility.40 To properly impeach a witnesss credibility by eliciting testimony regarding the witness s prior silence, counsel must determine that: (1) the witness knew of the charges against the defendant in sufficient detail enough to realize that she had exculpatory evidence; (2) the witness had a reason to make this information available; and (3) the witness was familiar with the manner of reporting such information to the authorities.41 Once this proper foundation is established, a witnesss silence is treated as a prior inconsistent statement.42 The SJC found that the prosecution laid the foundation by showing: (1) the witness Houle understood that Haley s statement was important and potentially exculpatory because he told her the defendant was a dirty dog who should take the rap for the crime; (2) the witness was motivated to help the defendant since her elicited testimony indicated that she was friendly with the defendant, having worked with him for years, and she lent him a television to replace the stolen one; and (3) the witness had the chance to convey the information to authorities.43 In addition, the SJC rejected the defendants argument that Houle did not tell the police about the statement due to her position as a night-shift worker making her vulnerable to violent retaliation because this was never presented to the jury, mentioned to the judge at sidebar, or brought up by defense counsel during redirect. 44 As a result, the prosecution laid the proper foundation and the SJC held that the judge did not err in allowing the prosecutor to impeach Houles credibility.45 4. The SJC found that the two firearm convictions were not duplicative.46 The Court concluded that an individual commits a single violation of Massachusetts General Laws, chapter 269, section 10(a), for the duration of the uninterrupted period that the individual carried a rifle outside his or her residence or place of business. 47 A second violation is committed if this period is interrupted by the individual returning to his residence with the rifle and then goes back outside with the rifle. 48 The jury found that on October 17, 2009, the defendant was in possession of a .22 caliber rifle while interacting with Darco outside of the victim s

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Id. at 449. Id. at 448 (quoting Commonwealth v. Cintron, 435 Mass. 509, 522 (2001)). Id. (quoting Commonwealth v. Brown, 11 Mass. App. Ct. 288, 296 (1981)). Commonwealth v. Horne, supra at 447. Id. at 448-449. Id. at 449. Id. at 441. Id. at 452. Commonwealth v. Horne, supra.

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apartment.49 Trial evidence suggested that the defendant returned home shortly after the two men interacted, and the jury reasonably inferred that upon returning home, the defendant brought the rifle with him. 50 The jury also found that on October 18, 2009, the defendant again carried the rifle outside of his residence.51 Consequently, the evidence sufficed to support the two separate convictions.52 V. Impact on the Law Commonwealth v. Horne depicts the importance of the jurys reasonable person mentality when considering a case. 53 The SJC focused on how the jury must receive the appropriate jury instructions.54 The Court clarified that when a judge fails to instruct the jury on a conviction, even if there is only a small amount of evidentiary support, a defendant is entitled to a new trial.55 This judgment maintains efficiency in the Massachusetts criminal justice system because it guarantees that a defendant will receive a fair trial by striving to ensure that jurors will always receive proper instructions of a conviction.56

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Id. Id. Id. Id. (citing G.L. c. 269, 10(a)). See id. at 444. See id. See Commonwealth v. Horne, supra. See id. at 452.