COMMONWEALTH vs. JOHN NICHYPOR.

ABRAMS, J. Convicted of murder in the first degree by reason of extreme atrocity or cruelty and felony-murder, see

Page 210

G. L. c. 265, Section I (1992 ed.), the defendant appeals. The defendant's conviction of murder in the first degree was based on joint venture. [Note 1] The defendant claims that the judge improperly: (1) instructed the jury on joint venture; (2) refused to instruct the jury on manslaughter; and (3) failed to instruct the jury on the humane practice rule. The defendant also asks that we exercise our power under G. L. c. 278, Section 33E (1992 ed.), and enter a lesser degree of guilt. We affirm the conviction and decline to exercise our power under Section 33E in favor of the defendant.

I. Facts. We set forth the facts in the light most favorable to the Commonwealth. Commonwealth v. Burnett, 417 Mass. 740, 741 (1994). On September 28, 1988, the defendant telephoned Kevin Pierce. The two men talked about "rolling a fag" that evening. Shortly after their telephone conversation, the defendant and Pierce went to a restaurant in Gloucester, accompanied by Joshua Halbert. Pierce then telephoned the victim, David McLane. Pierce told the defendant and Halbert that McLane was homosexual.

McLane picked the three men up and drove them to his apartment in Gloucester. The four men drank some alcohol and watched pornographic movies at McLane's apartment. During the movie, Halbert and Pierce went into the kitchen. The defendant remained in the living room with McLane. When Halbert and Pierce reentered the room, Pierce said that he, Halbert, and the defendant were homosexual. McLane, who was sitting on a couch still watching the television, asked Halbert, "Josh, what do you want to do?" Interpreting the question as a sexual overture, Halbert responded, "I'm not into that stuff." Then Pierce approached the victim from behind and locked his arm around McLane's neck. Pierce choked the victim until the victim's face turned purple. During this struggle, the defendant "threw one punch" at the victim, and Halbert clubbed the victim in the head

Page 211

and groin with an empty whisky bottle stating, "You're going to get hurt, cause I'm not queer."

Halbert then pulled a razor blade from his back pocket and cut the victim's throat several times. Pierce went into the kitchen and grabbed a steak knife, which he thrust into the victim's left temple. Halbert ran to the kitchen and grabbed a second knife, which he placed on the couch. Either Pierce or Halbert picked up the second knife and thrust that through the victim's left temple. One knife was flush with the skin surface with its tip protruding from the right side of the victim's neck; the other knife was out approximately three inches from the skin on the left temple. Pierce repeatedly said, "Die faggot. Die faggot." The victim was "making strange noises." Pierce told the defendant to put a cushion over the victim's face to keep him quiet and muffle his moans. In compliance, the defendant placed a couch cushion over the victim's face. All three men then knelt down in the victim's blood and prayed for forgiveness.

After the attack, the defendant, Pierce, and Halbert took a framed, uncut sheet of dollar bills and a box of coins from the apartment. The defendant took a share of the stolen property. The three men also tried to remove any fingerprints they left in the apartment. One of the men found the victim's automobile keys. After being asked by Pierce and Halbert to drive the victim's automobile, the defendant got into the driver's seat but could not start the automobile. The three men then left the scene on foot. Several days after the killing the police arrested the defendant. The defendant gave a signed statement to the police. Occult blood was found on the defendant's hands, forearms, and the pants he wore on the night of the killing, as well as on the driver's side of the victim's automobile.

II. Joint venture and extreme atrocity and cruelty. The defendant's brief suggests that he could not be found guilty of murder in the first degree because he was not a participant in the crime. The defendant argues that he was present and in fear for his life, but that he was not responsible for the murder because he did not act "with a shared criminal

Page 212

intent to render aid, assistance, or comfort to Halbert and Pierce." He asserts that the judge's instructions on joint venture were erroneous and his conviction for murder in the first degree must be reversed. We do not agree.

There was ample evidence from which a jury could conclude that the defendant was a joint venturer in the murder by extreme atrocity or cruelty and by felony-murder. "A joint venturer is `one who aids, commands, counsels, or encourages commission of a crime, while sharing with the principal the mental state required for the crime.'" Commonwealth v. Daughtry, 417 Mass. 136, 138 (1994), quoting Commonwealth v. Soares, 377 Mass. 461, 470, cert. denied, 444 U.S. 881 (1979). The evidence permitted the jurors to determine that the defendant was ready, willing, and able to assist Pierce and Halbert in their criminal assault on the victim. The jury could conclude from the evidence that the defendant was present, saw the escalating violence, and willingly helped his coventurers. See Commonwealth v. Bianco, 388 Mass. 358, 366, S.C., 390 Mass. 254 (1983).

There is no error in submitting to the jury the issue of the defendant's guilt based on extreme atrocity or cruelty. The defendant was present in circumstances that would lead a reasonable person to believe that the victim was experiencing pain. His continuing participation in the crime with this knowledge constitutes cruelty. Commonwealth v. Podlaski, 377 Mass. 339, 346 (1979) ("The victim's extensive and serious injuries certainly warranted a finding that whoever participated in the beating of the victim did so with extreme atrocity or cruelty" [citations omitted]).

The defendant's conviction could be affirmed solely on extreme atrocity or cruelty. "Where a crime can be committed in any one of several ways . . . [t]hen the defendant should be convicted if it is proved that he committed the crime in any of those ways." Commonwealth v. Chipman, 418 Mass. 262, 270 n. 5 (1994), quoting Commonwealth v. Dowe, 315 Mass. 217, 219-220 (1943). Both parties, however, have focused on the felony-murder theory of the defendant's conviction and we now address that issue.

Page 213

III. Felony-murder instruction. The judge denied the defendant's request for an instruction that if the jury found that his two coventurers hatched a secret plan unknown to the defendant to murder the victim during the agreed robbery, then they could not convict the defendant as a joint venturer of murder in the first degree by reason of felony-murder. [Note 2] In substance, the judge instructed the jury that regardless whether a separate and independent plan was formulated by Halbert and Pierce to kill the victim, if the killing occurred during the course of the robbery, and the robbery posed an inherent risk to human life, then, if the jurors concluded that the defendant was a joint venturer in that felony, the defendant could be convicted of murder in the first degree by reason of felony-murder. [Note 3]

The defendant challenges the judge's instruction on felony-murder on two grounds. First, the defendant argues that his

Page 214

intent to engage in unarmed robbery was not transferrable to the killing under the felony-murder doctrine if Pierce and Halbert's murder plan was not a foreseeable consequence of the unarmed robbery. Second, the defendant takes the position that an independent plan to kill between his joint venturers breaks the causal link between the underlying felonious joint venture and the murder.

In Commonwealth v. Matchett, 386 Mass. 492, 502 (1982), we said that the felony-murder rule under G. L. c. 265, Section 1, "does not serve to transform a death, without more, into a murder." The Commonwealth still must establish the malice aforethought required for murder, but the felony-murder rule substitutes the intent to commit the underlying felony for the intent required for the conviction of murder in the first degree. See Commonwealth v. Matchett, supra at 502; Commonwealth v. Watkins, 375 Mass. 472, 486-487 (1978); Commonwealth v. Devlin, 335 Mass. 555, 567 (1957); Commonwealth v. Gricus, 317 Mass. 403, 412 (1944); Commonwealth v. Venuti, 315 Mass. 255, 258 (1943); Commonwealth v. Chance, 174 Mass. 245, 252 (1899). We also have said that only felonies which are inherently dangerous to human life justify application of the felony-murder rule. See, e.g., Commonwealth v. Moran, 387 Mass. 644, 651 (1982) (because unarmed robbery is "not inherently dangerous to human life," a jury must conclude that in agreeing to participate in the unarmed robbery, "the defendant consciously disregarded risk to human life"). "Where . . . the acts which constitute felonious conduct do not possess a sufficient danger to human life to justify the application of the doctrine of common law felony-murder, the doctrine is inapplicable because there is a failure to establish the requisite state of mind from the forming of the intention to commit the felony." Commonwealth v. Matchett, supra at 507, quoting Commonwealth v. Bowden, 456 Pa. 278, 287 (1973) (Nix, J., concurring).

Whatever the defendant may have intended when he agreed to "roll[ ] a fag," the evidence supports the jury's determination that after seeing Halbert pull out a razor

Page 215

blade, and after seeing Halbert and Pierce bring knives from the kitchen and use them on the victim, the defendant knew that the circumstances of the robbery were inherently dangerous to human life. The defendant did not abandon the robbery, [Note 4] but he joined in the criminal attack by trying to punch the victim, and by acceding to Pierce's request to quiet the victim by placing a cushion over the victim's face. See Commonwealth v. Cook, ante 192 (1994). The underlying felony in which the defendant participated clearly posed a risk to human life and supports a conviction of murder in the first degree based on felony-murder.

We are not persuaded by the defendant's second argument that, because he could not foresee the secret plan between his joint venturers, the killing was not causally linked to the robbery. "[A]s long as the homicide [ ] [was] connected with and incident to the [robbery] and as long as the [robbery and the homicide] took place at substantially the same time and place," then the defendant is guilty of felony-murder. Commonwealth v. Ortiz, 408 Mass. 463, 466 (1990). Even if a killing were not intended, a participant in an underlying felony which poses an inherent risk to human life is responsible for a killing which is a natural and probable consequence of the felony. Commonwealth v. Moran, supra at 648 ("The felony-murder rule is that a homicide committed in the commission or attempted commission of a felony is murder"). As a joint venturer, the defendant was responsible for the natural and foreseeable consequences of the robbery, regardless of whether his attempt to throw a punch and his use of the couch cushion were the proximate causes of the victim's death.

In sum, the jury could conclude that the defendant was engaged in a joint venture, see Commonwealth v. Soares, 377 Mass. 461, 470 (1979), saw the increasingly violent nature of the robbery and joined in the crime. A defendant cannot

Page 216

escape responsibility by claiming that he was unaware that the violence in which he joined was preplanned by his confederates without his knowledge.

IV. Manslaughter instruction. The defendant argues that the issue of the appropriateness of a manslaughter instruction was preserved for appeal by his request at trial for an instruction on "manslaughter A and B." We seriously doubt that the defendant adequately preserved the issue for appellate review. "It is a fundamental rule of practice that where a party alleges error in a charge, he must bring the alleged error to the attention of the judge in specific terms in order to give the judge an opportunity to rectify the error, if any." Commonwealth v. McDuffee, 379 Mass. 353, 357 (1979). We shall assume, for purposes of this appeal, that the issue is preserved.

If a manslaughter charge is not supported by any view of the evidence, then a judge does not commit error by refusing to give such an instruction in a murder case. Commonwealth v. Campbell, 352 Mass. 387, 392 (1967). All reasonable inferences are drawn in favor of the defendant in deciding whether a manslaughter instruction was supported by the evidence. Commonwealth v. Vanderpool, 367 Mass. 743, 746 (1975).

Voluntary manslaughter is "a killing from a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat." Commonwealth v. Vanderpool, supra at 746, quoting Commonwealth v. Soaris, 275 Mass. 291, 299 (1931). There was no evidence that the three men were provoked, attacked, or otherwise assaulted by the victim. See Commonwealth v. Halbert, 410 Mass. 534, 539 (1991) ("The victim's question ['Josh, what do you want to do?']) was neither insulting nor hostile" and was not sufficient evidence of provocation to warrant manslaughter instruction); Commonwealth v. Pierce, ante 28, 32 (1994) (nonthreatening invitation accompanied by physical gesture were insufficient evidence to warrant manslaughter instruction).

Page 217

A defendant is guilty of involuntary manslaughter if the homicide he is charged with was (a) the unintentional result of an act committed with such disregard of its probable harm to another as to amount to wanton or reckless conduct, or (b) an unintentional death which results from the commission of a battery. See Commonwealth v. Sheppard, 404 Mass. 774, 776 (1989), and cases cited. "A killing without malice does not automatically become involuntary manslaughter. The traditional elements of involuntary manslaughter must be shown by evidence that the jury might believe before an instruction on involuntary manslaughter is required." Commonwealth v. Sires, 413 Mass. 292, 302-303 (1992).

Evidence of wanton and reckless conduct amounting to involuntary manslaughter was not raised by the testimony. The risk of harm associated with stabbing a person in the head with knives and slashing a person's throat with a razor blade is the kind of risk that could only lead to a determination of malice. Commonwealth v. Ferreira, 417 Mass. 592, 599 (1994).

The defendant's argument that the evidence required an instruction on the theory of a battery not amounting to a felony-manslaughter also is unsupported by the evidence. "The law of this Commonwealth recognizes unlawful-act manslaughter . . . if the unlawful act is a battery not amounting to a felony, when the defendant knew or should have known that the battery he was committing endangered human life." Commonwealth v. Sires, supra at 302 n. 10. The testimony does not support a claim that the victim's death was an unintentional death resulting from a battery not amounting to a felony.

The defendant's trial strategy was a claim that he was present and fearful [Note 5] of Halbert and Pierce but that he was

Page 218

not a participant or a joint venturer in the homicide by felony-murder or extreme atrocity or cruelty. If the jurors believed that the defendant was merely present and fearful, then they were required to acquit him. If the jurors believed that the defendant was part of a felonious joint venture which was inherently dangerous to human life or that he was ready, willing, and able to assist his coventurers in their criminal assault on the victim, then the jury could convict the defendant of murder in the first degree. There is no basis on the record for an instruction on either voluntary or involuntary manslaughter.

V. Instruction under the humane practice rule. The defendant concedes that a humane practice instruction was not requested at trial, but argues on appeal that the voluntariness of his signed statement remained a live issue at trial and that the judge erred in not instructing the jury sua sponte under the humane practice rule. Commonwealth v. Tavares, 385 Mass. 140, cert. denied, 457 U.S. 1137 (1982). We do not agree.

The defendant asserts that voluntariness became a live issue because he denied on cross-examination that he made several of the statements in the written version of his statement to police. The defendant argues that voluntariness also was raised by evidence of the defendant's intoxication, limited education, emotional state, and the circumstances of the interrogation. The defendant's claim at trial was not that the statements were involuntary, but that he did not make some of the statements testified to by police. The defendant did not

Page 219

raise voluntariness. There was no substantial likelihood that a miscarriage of justice occurred in not instructing on the humane practice because voluntariness of his statement was not a live issue. [Note 6]

VI. G. L. c. 278, Section 33E. The defendant also seeks a reduction of the verdict pursuant to G. L. c. 278, Section 33E. We conclude that the Commonwealth presented sufficient evidence of the defendant's participation in the underlying robbery and of the extremely brutal manner in which the victim was killed to support his conviction for murder in the first degree. The defendant's argument that he was in special needs classes during his primary education and that he was from a "disadvantaged" background do not justify a reduction to the lesser degree of guilt. We have considered the entire case on the law and the evidence, see G. L. c. 278, Section 33E, and conclude that the interests of justice do not require a new trial or entry of a verdict of a lesser degree of guilt.

Judgment affirmed.