Commonwealth v. Watson
Commonwealth v. Watson
Opinion of the Court
The defendants were convicted of the murder in the first degree of Jeffrey S. Boyajian. They appeal from their convictions, raising a common challenge to the admission of testimony from a witness who had been hypnotized and raising individual challenges on certain other issues. We conclude that Clay, who was a juvenile at the time of the crime, was properly transferred from the juvenile system for trial pursuant to the adult system. Neither defendant was substantially prejudiced, in the circumstances, by the admission of testimony from a witness who had been hypnotized. We find no justification pursuant to our duty under G. L. c. 278, § 33E, to alter the verdict as to Clay and affirm his conviction. Although we conclude that there was sufficient evidence to warrant Watson’s conviction on the theory of deliberately premeditated murder with malice aforethought, the judge’s charge on felony-murder did not place before the jury the crucial question whether Watson had knowledge of Clay’s possession of a weapon so as to warrant Watson’s conviction of murder in the first degree based on the theory of felony-murder. Therefore, because the jury may have found Watson guilty solely on the theory of felony-murder and because the omission of a charge concerning Watson’s knowledge of Clay’s possession of a gun presents a substantial likelihod of a miscarriage of justice (G. L. c. 278, § 33E), we order a new trial as to Watson.
About 4:20 a.m. on the same morning, Neal Sweatt, a resident of an apartment on Brookway Terrace in the Arch-dale Housing Project, in the Roslindale section of Boston, went to a parlor window, after his mother had called, “Look, they’re pulling a cab driver . . . out of the cab.” Sweatt testified that he recognized Watson, whom he had seen previously but whose name he did not know, and Clay, whose first name he knew. They and the third man pulled Boyajian from the taxicab. Sweatt heard Boyajian say, “Take what you want, but let me live.” The three men beat Boyajian. While Watson held Boyajian, Clay went through his pockets. Boyajian threw an object which Clay retrieved. Watson released Boyajian and disappeared from sight momentarily. Then Sweatt saw Clay point an arm in Boyajian’s direction. He heard at least three shots, after
1. Clay, who was sixteen at the time of the murder, challenges the decision of a judge sitting in the Juvenile Session of the West Roxbury District Court, acting pursuant to G. L. c. 119, § 61, to dismiss the juvenile complaint and to order a criminal complaint to issue. After Clay’s indictment, a judge of the Superior Court considered and denied Clay’s motion to dismiss, which challenged the propriety of the transfer order.
We have reviewed the Juvenile Session judge’s findings and conclude that they were warranted by the evidence. There was, to be sure, evidence that Clay was amenable to rehabilitation as a juvenile. The judge found the views of certain experts unpersuasive. Certainly he was not bound by their views. See Two Juveniles v. Commonwealth, 381 Mass. 736, 744-745 (1980). He found on clear and convincing evidence that (1) Clay presented a significant danger to the public and (2) Clay was not amenable to rehabilitation as a juvenile. He considered the five factors stated (a) through (e) in G. L. c. 119, § 61. He made subsidiary findings indicating the bases for his conclusions. See A Juvenile v. Commonwealth, 370 Mass. 272, 282 (1976).
There was no error in the admission of particular items of evidence at the transfer hearing. In his discretion, the judge was warranted in admitting the opinion of the acting regional director of Region 6 of the Department of Youth Services (DYS) that Clay was not a fit subject for the DYS. It is important that the witness had twenty-seven years’ experience in the system. See Commonwealth v. A Juvenile, 365 Mass. 421, 430 (1974). Further, it was within the judge’s discretion to admit Clay’s entire DYS file and to permit an assistant school principal to testify to the circumstances under which Clay had been suspended from school, three times, in 1978 and 1979. Under G. L. c. 119, § 61,
2. The defendants argue that they were prejudiced by the admission of testimony from Richard Dwyer, the taxicab driver, who had been hypnotized on two occasions after the crime. Prior to his hypnotic sessions, Dwyer had positively identified a photograph of Watson as one of the three men he had seen enter the taxicab shortly before its driver was shot. He was “about eight out of ten sure” that a photograph of Clay he saw before hypnosis was that of another one of the three men. After hypnosis, he was positive about both identifications.
In our opinion in Commonwealth v. Kater, ante 519, 524-531 (1983), released today, we considered extensively the question of the admissibility of testimony from a witness who has been hypnotized. We concluded that testimony is admissible from a witness as to his or her present memory of events remembered prior to hypnotism and that hypnotically aided testimony (that is, testimony that was not available prior to hypnosis) is inadmissible. We recognized that hypnotism itself and the manner in which an hypnotic session was conducted would be appropriate subjects of inquiry when testimony is proffered from a previously hypnotized witness concerning events as remembered prior to hypnosis.
The jury heard extensive testimony concerning the hypnotic sessions, including a tape recording of each session.
As to the defendant Watson, we have no difficulty in concluding that he was not prejudiced by the admission of Dwyer’s testimony following hypnosis. The evidence showed that Dwyer’s identification of Watson’s photograph
We reach the same conclusion as to Dwyer’s identifications of Clay’s photograph and his identification of Clay at the trial. The circumstances of Dwyer’s hypnosis and its possible effect on his testimony were presented to the jury. The evidence demonstrated that hypnosis could, and likely did, enhance Dwyer’s confidence. In his closing argument, the prosecutor asked the jury to disregard Dwyer’s posthypnotic certainty and only to use Dwyer’s prehypnotic identification as corroboration of Sweatt’s identification of Clay.
The judge did not charge the jury on the possibility of finding Watson guilty of murder in the first degree based on the felony of unarmed robbery. Because the maximum penalty for unarmed robbery is a sentence of imprisonment in the State prison for life (G. L. c. 265, § 19), a conviction of murder in the first degree could be based on the death of the victim in the course of the commission of the felony of unarmed robbery. G. L. c. 265, § 1. If the judge had charged the jury on the possibility of unarmed robbery being the underlying felony, without instructing them that they must find from the circumstances of any unarmed robbery that Watson consciously disregarded risk to human life, we would have to direct that there be a new trial, as we did in the Moran case.
Here we are dealing with a jury charge on felony-murder in which the only underlying felony presented for the jury’s
Watson could not be guilty of murder in the course of the commission of armed robbery unless he knew that Clay had a gun. Such a factual finding is essential to a finding that Watson was guilty of felony-murder. Our cases concerning accessorial responsibility for the possession of a weapon by another have involved circumstances in which the person not in possession of the weapon knew that the other person had a weapon. See Commonwealth v. Ferguson, 365 Mass. 1, 8 (1974); Commonwealth v. Clark, 363 Mass. 467, 472-473 (1973); Commonwealth v. Richards, 363 Mass. 299, 308 (1973); Commonwealth v. Benders, 361 Mass. 704, 707-708 (1972).
If, in some way, this general language about sharing Clay’s specific intent might implicitly have told the jury that they had to find Watson knew Clay had a gun (and we think it did not), what next happened dispels any such inference. On the day following the charge, the jury sought further instructions. One of the questions was: “Is it armed robbery if a robbery is committed when one of the participants has a weapon in his possession even though
We recognize that Watson’s counsel did not specifically request an instruction concerning proof of Watson’s knowledge, nor did he object to the absence of such an instruction. Our cases have indicated the requirement of such knowledge in order to establish accessorial responsibility. See Commonwealth v. Ferguson, 365 Mass. 1, 8 (1974). The judge’s charge, however, instructed the jury explicitly that Watson could be guilty of felony-murder simply if Clay had a gun and implicitly instructed the jury that it did not matter whether Watson knew Clay had a gun. In the exercise of our obligation under G. L. c. 278, § 33E, we conclude that there was a substantial risk of a miscarriage of justice in the failure to charge the jury that Watson could be guilty of felony-murder, based on armed robbery, only if he had knowledge of Clay’s possession of a gun. There must therefore be a new trial as to the defendant Watson.
We conclude that the jury would have been warranted, based on the facts and reasonable inferences from the facts, in finding that Watson was guilty of deliberately premeditated murder. The jury could have found the following: Watson, Clay, and the unidentified third man agreed to rob a taxicab driver. Watson knew Clay had a gun. Their plan was to enter a taxicab on Washington Street and have it driven to the Archdale Housing Project where they would rob the driver. They did so. At Brookway Terrace, they pulled the victim out of the taxicab. They threatened and beat him. The victim pleaded that they let him live. The victim had reason to believe his life was threatened, inferentially by a gun. Watson heard the victim’s plea. Clay went through the victim’s pockets, while Watson held the victim
5. Pursuant to our duty to review the case under G. L. c. 278, § 33E, we see no reason to disturb the verdict against Clay. The judgment against Clay is affirmed. The judgment against Watson is reversed, the verdict is set aside, and the case is remanded to the Superior Court for a new trial.
So ordered.
Prior to trial, a judge, not the trial judge, held a hearing on Watson’s motion to suppress Dwyer’s testimony because Dwyer had been hypnotized. He denied the motion. For reasons over which the trial judge had no control and contrary to what he correctly regarded as appropriate practice, Clay’s similar motion was not passed on before trial and was considered during the trial, he and the jury hearing the evidence at the same time. The trial judge denied Clay’s motion to suppress.
We said in Commonwealth v. Kater, supra at 526-531, that a jury could not be expected to evaluate whether testimony was created as a result of hypnosis, but that we would allow proponents and opponents of testimony based on prehypnotic memory to present expert evidence as to the effect on the manner and certainty of that testimony. The events here fit this latter situation.
The prosecutor said, in this respect: “And I will ask you this: to consider the testimony of Richard Dwyer only in so far as it corroborates Neal Sweatt. And I ask you from the Commonwealth’s point of view to disregard any identification of Frederick Clay over eighty percent, or over ‘somewhere around an eight,’ or over ‘pretty sure.’ Because on his prehypnotic testimony, corroborated by Detective Berio, he tells you that when he came to the police station, before he was hypnotized, he picked out a photograph of two people — two photographs. One positively: Watson. And one ‘pretty sure’: Clay.
“And ask yourself, doesn’t that corroborate what Neal Sweatt has told you here?”
At the retrial of Watson, which we have ordered for other reasons, the Commonwealth will have no right, in its case in chief, to present evidence
In Commonwealth v. Mangula, 2 Mass. App. Ct. 785, 790 (1975), the Appeals Court, citing the Ferguson case, assumed for the purposes of that case that “to be found guilty of armed robbery the defendant must have had knowledge of the possession of the weapon by his joint venturers.” Where a defendant is charged as an aider and abettor of an aggravated robbery, requiring proof of use of a dangerous weapon, “the Government must show that the accomplice knew a dangerous weapon would be used or at least that he was on notice of the likelihood of its use.” United States v. Sanborn, 563 F.2d 488, 491 (1st Cir. 1977). See State v. Plakke, 31 Wash. App. 262, 266-267 (1982), citing Commonwealth v. Ferguson, supra.
We note parenthetically the important fact that it would not be sufficient to convict Watson of felony-murder simply by showing that he knew that Clay had a gun. It must be “further shown that [Watson] intentionally assisted [Clay] in the commission of the crime and that he did this, sharing with [Clay] the mental state required for that crime.” Com
The jury added this comment: “Our difficulty is where does the robbery stop and the murder begin it, in fact, it can be separated so that a verdict of murder in the first degree or murder in the second degree could be rendered.”
Watson makes no argument that the evidence did not warrant a finding that he had knowledge that Clay had a gun. The jury could infer knowledge from the circumstances. What Justice Kaplan said for the court in Commonwealth v. Ferguson, supra at 9, is apt here: “There was no proof of prior discussion or consultation among the actors which often appears in cases of armed robbery or other crimes committed by multiple offenders, and provides a basis for reasoning about the participants’ awareness of or intentions with respect to weapons. But there was evidence of a common venture, and a person joining in a robbery under conditions like the present, and apprehending that the intended victim might resist, could suppose that the other actors might be furnished with
On the facts, even if Watson did not know that Clay had a gun and was thus only involved (from his point of view) in an unarmed robbery, the judge would have been warranted in submitting to the jury the question whether, pursuant to the Matchett and Moran cases, Watson in the circumstances of the unarmed robbery consciously disregarded the risk to human life.
Of course, Clay, who according to the evidence had a gun and used it, is not entitled to the benefit of the rule we apply to Watson.
Although we conclude that there was sufficient evidence to warrant Watson’s conviction of murder with deliberate premeditation, we do not know the theory or theories on which the jury reached their verdict, and, therefore, the error in the instructions of felony-murder requires that there be a new trial.
Dissenting Opinion
(dissenting with whom Hennessey, C.J., and Lynch, J., join). I dissent. Although the judge did not specifically instruct the jury that they had to find that Watson knew that Clay had a gun, justice does not require a new trial of this case. An eyewitness saw Watson, Clay, and another man pull Boyajian from the taxicab. The same eyewitness saw Watson and the others beat Boyajian after he pleaded for his life. The same eyewitness saw Watson hold Boyajian while Clay went through his pockets. After Clay pumped five bullets into Boyajian’s head, the three men ran away. There was a moment in time, apparently just before Clay shot Boyajian, when Watson disappeared from the sight of the witness. The jury had every right to believe, as they evidently did believe, that Watson was present in that fleeting moment.
The court attaches great significance to the jury’s request for further instruction. Admittedly, the judge answered the jury correctly. The judge had already correctly charged on the elements of armed robbery. He had already correctly instructed the jury on the law of joint criminal enterprise. He said that the Commonwealth must “prove beyond a reasonable doubt that the person that they allege is guilty on the theory of joint criminal venture with another was actively involved in the participation of the crime that was the object of the venture. That he shared the specific intent to see the successful completion of that crime. And that he actively did something in pursuance of that crime . . . .” This instruction is faithful to our law on joint criminal, enterprise. See Commonwealth v. Whitehead, 379 Mass. 640, 650-652 (1980). It is difficult to understand how the jury could conclude that Watson met these criteria for a joint undertaking if they found that he did not know that Clay had a gun and would use it, if necessary. It is even more difficult to believe on the overwhelming evidence in this case that Watson did not know of the gun.
A judge is not required to “instruct on every subsidiary fact and possible inference.” Commonwealth v. Chasson, 383 Mass. 183, 188 (1981). Further, it was open to Watson
The requirement demanded by the court today is unreasonable, especially in light of the failure of defense counsel to request such an instruction before the charge and his failure to object to its omission after the charge.
Reference
- Full Case Name
- Commonwealth vs. James J. Watson (And a Companion Case)
- Cited By
- 71 cases
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- Published