COMMONWEALTH VS. GABRIEL CRUZ

LYNCH, J. On June 17, 1996, a jury convicted the defendant of murder in the first degree on a theory of felony-murder, specifying both burglary with assault on an occupant and stealing from a building by confining or putting in fear as underlying felonies. The jury also convicted the defendant of three counts of burglary with an actual assault on an occupant; one indictment charging armed assault in a dwelling entered with intent to commit a felony; four counts of stealing from a building by confining or putting in fear; one indictment charging armed robbery; four counts of assault and battery by means of a dangerous weapon; and one indictment charging armed assault with intent to murder.

The defendant appeals primarily pursuant to G. L. c. 278, s. 33E, claiming a multitude of errors. Except for the burglary convictions, we affirm. Other than where noted, no objection was raised at trial concerning the arguments discussed below and, therefore, we review the unpreserved claims of error to determine whether the errors alleged created a substantial likeli-

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hood of a miscarriage of justice. See, e.g., Commonwealth v. Allard, 429 Mass. 756, 759 (1999); Commonwealth v. Pucillo, 427 Mass. 108, 115 (1998).

The jury were warranted in finding the following: On the evening of September 11, 1994, three men armed with guns broke into a third-floor apartment, after bludgeoning one of the occupants, Victor Rojas (Victor), with an aluminum baseball bat. Once inside, one of the intruders bound Victor's hands and feet with telephone wire, gagged his mouth by wrapping duct tape around his head, and covered him with a sheet. Meanwhile, the other occupants, a seven year old girl (victim) [Note 1] and her mother, were awakened, taken from their beds, and brought into the living room where they were similarly bound, gagged, and covered with a sheet. Because the duct tape covered her nose and mouth, the victim died of asphyxiation.

Two of the men descended to the first-floor apartment where they encountered Victor's elderly uncle. The two men severely beat the uncle and shot him several times before ransacking the apartment and stealing some jewelry.

Police investigation led to the arrest of the defendant and two others [Note 2]. The defendant gave investigators a written statement in which he admitted that he had met with Jack Marcelini, Francis Sepulveda, and Luis Raul Roque-Cruz in Marcelini's apartment located on the second floor of the building where the robbery occurred. At the meeting, these men informed the defendant of their intention to burglarize the two other apartments in the building and invited him to participate as a lookout.

The defendant said that he acted as a lookout while the others, carrying an aluminum bat and the tape, proceeded to the third-floor apartment. Soon after, Marcelini summoned him back into the apartment building and sent him down to the first floor apartment where the defendant watched as two of the others beat Victor's uncle as they demanded money from him. After leaving the first-floor apartment in search of Sepulveda, he returned to discover Marcelini with the uncle who was bleeding from several fresh gunshot wounds. Later, three of the men, including the defendant, met at a friend's house and divided jewelry taken from the apartment.

1. Murder in the second degree. The defendant for the first

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time on appeal argues that the facts warranted an instruction on murder in the second degree, and the failure to give such an instruction created a substantial likelihood of a miscarriage of justice. G. L. c. 278, s. 33E. The defendant posits that the malice requisite for an instruction on murder in the second degree could have been predicated on a finding that the act of gagging the victim with duct tape created a plain and strong likelihood that death would follow, i.e., third prong malice. Alternatively, the defendant argues that the jury could have found that the assaults on the victim's parents, crimes not punishable by life imprisonment, were in conscious disregard for the risk to human life, and thus, would also support a jury's finding of malice sufficient to require an instruction on felony-murder in the second degree. In view of the fact that the jury found the defendant guilty of felony-murder in the first degree, predicated on both potential underlying felonies, even if the evidence warranted the giving of an instruction on murder in the second degree, the failure so to instruct did not create a substantial likelihood of a miscarriage of justice, especially since the jury were instructed that they were responsible for determining the degree of murder. We are, therefore, confident that the jury's verdicts regarding felony-murder would have been returned even if the judge had fully instructed on murder in the second degree.

The evidence did not support an instruction on felony-murder in the second degree on the proposed alternate theory that the victim was killed in the commission of an assault and battery by means of a dangerous weapon on either of her parents, who were also bound with duct tape. The defendant correctly reasons that the dangerous use of duct tape to commit an assault and battery directly on the victim cannot be the underlying offense for felony-murder. Commonwealth v. Gunter, 427 Mass. 259, 272 (1999). However, there was no evidence that would allow the inference that any assault and battery by means of a dangerous weapon on either of the victim's parents was committed with conscious disregard for the risk to human life, or that the death of the victim was a natural and probable consequence of those felonies. Commonwealth v. Ortiz, 408 Mass. 463, 466-467 (1990), and cases cited [Note 3].

2. Manslaughter instruction. The defendant also contends

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that the judge's instruction on involuntary manslaughter erroneously tied the involuntary manslaughter instruction to the underlying felonies in the felony-murder charge. The judge instructed that, if the jury found that the defendant committed one or both of the felonies, but that the Commonwealth failed to prove that the victim's death occurred in the course of those crimes or if they found that the defendant only committed the felony of stealing or putting in fear, but that although death occurred in the course of it, the Commonwealth failed to prove the defendant acted with conscious disregard for the risk to human life, they should consider manslaughter. We conclude that no substantial likelihood of a miscarriage of justice arose from the judge's refusal to instruct on a theory that the jury ultimately never considered.

Moreover to convict the defendant of involuntary manslaughter, the Commonwealth would have had to prove that the defendant, either directly, or as a joint venturer, caused

"an unintentional death (1) during the commission of wanton or reckless conduct, as defined in Commonwealth v. Welansky, [ 316 Mass. 383, 399 (1944) ('wanton or reckless conduct is intentional conduct by way either of commission or of omission where there is . . . a high degree of likelihood that substantial harm will result to another')], or (2) during the commission of a battery, under the principles set forth in [Commonwealth v. Sheppard, 404 Mass. 774, 777 (1989) (requiring proof that battery was harmful and noting "[a] harmful battery occurs when the touching is done with such violence that harm is likely to result")], and other cases cited therein."

Commonwealth v. Catalina, 407 Mass. 779, 789 (1990). Thus, a finding that the Commonwealth had Wed to prove that the defendant was culpable as a joint venturer on either of the underlying felonies would eliminate the connection between whoever applied the duct tape and the defendant's vicarious

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participation in this act. See Commonwealth v. Burrell, 389 Mass. 804, 807-808 (1983), and cases cited. It follows then that a conviction of involuntary manslaughter would require a jury to conclude that the defendant had taped the victim's mouth and nose himself.

Where there was only slim evidence that the defendant was present on the third floor and no evidence to suggest that he personally applied the tape, the judge's manslaughter instruction was not erroneous and did not create a substantial likelihood of a miscarriage of justice.

Finally, we note that, even were we to conclude that the judge should have instructed the jury to consider manslaughter independently of the other two charges, this would not have helped the defendant. The jury found the defendant guilty of felony-murder on both underlying felonies, each punishable by life imprisonment, and the jury were obligated to return a guilty verdict on the most serious crime charged and proved beyond a reasonable doubt. It is therefore difficult to comprehend how instructing the jury that they could convict the defendant of yet another crime could have prejudiced the defendant. Had the jury acquitted the defendant on the two underlying felony charges, the defendant could hardly complain that he should nonetheless be entitled to a manslaughter conviction. As we recently stated in a similar context, "[w]here the felony-murder rule applies, generally the defendant is not entitled to an instruction on manslaughter." Commonwealth v. Selby, 426 Mass. 168, 172 (1997), quoting Commonwealth v. Evans, 390 Mass. 144, 151 (1983) [Note 4].

3. Inherently dangerous felony instruction. The defendant as-

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serts that the judge improperly stated that the felony of burglary with assault on an occupant is a crime that is inherently dangerous to human life. The defendant's argument ignores settled precedent. See Commonwealth v. Selby, supra (armed assault in dwelling "by its very nature . . . 'inherently dangerous to human life,' Commonwealth v. Claudio, 418 Mass. 103, 108 [1994] [armed burglary in dwelling with assault therein, under G. L. c. 266, s. 14, is inherently dangerous felony and supported conviction for felony-murder"]).

4. Omission of larceny definition. The defendant next contends that the judge erred by failing to define larceny when she instructed the jury that larceny underlying the burglary is a felony. He argues that the judge precluded the jury from independently finding that the defendant intended (as a joint venturer) permanently to deprive the occupants of items valued at less than $250, thus rendering the underlying crime a misdemeanor. However, larceny in a building is a felony regardless of the value of the items stolen. See Commonwealth v. Ronchetti, 333 Mass. 78, 82 (1955). There was no error, therefore, and no substantial likelihood of a miscarriage of justice resulted from this instruction.

5. Defective indictment claim. The defendant next argues that the indictment for burglary with an assault on a person lawfully within, G. L. c. 266, s. 14, failed to allege the underlying felony on which the Commonwealth relied to satisfy the specific intent requirement, and is therefore fatally defective.

We recently addressed an analogous point within the context of a felony-murder indictment with a similar omission in Commonwealth v. Gunter, 427 Mass. 259, 274 (1998). In that case the indictment on a charge of murder made no mention of three assaults on which the Commonwealth predicated its felony murder theory. Despite the omission, in concluding that no substantial likelihood of a miscarriage of justice occurred, we stated, "the statutory form of indictment is sufficient to charge murder by whatever means it may have been committed, including by means of felony-murder." Id. We also suggested that a

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separate indictment on the independent felony would help to remedy any undue prejudice to the defendant. Id. Here there were separate indictments on all potential underlying felony counts. Further, before trial, the defendant was fully aware of the Commonwealth's theory of the case, and therefore, any deficiency in the indictment could not have created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Cantres, 405 Mass. 238, 241-242 (1989) (applying similar rationale to uphold judge's denial of defendant's motion for bill of particulars outlining crime on which conspiracy charge was based).

6. "Stealing from a building" instruction. The defendant also contends that the judge erroneously failed to define the crime of "stealing from a building" under G. L. c. 266, s. 20, apparently in connection with the following instruction:

"The crime that is defined in our statute provides . . . Whoever, with intent to commit larceny or any felony, confines, maims, injures, or wounds, or attempts to put any person in fear for the purpose of stealing from a building, bank, safe, vault, or other depository of money, bonds, or other valuables, shall, whether he succeeds or fails in the perpetration of such larceny or felony, be punished.

"In order to prove the defendant guilty of this crime, the Commonwealth must prove, beyond a reasonable doubt, the following:

"First, that the defendant, as a joint venturer, confined, injured, or wounded, in this instance, Victor Rojas, Delia Diaz, or [the victim], or Felix Rojas, or put that particular person in fear;

"Second, that he did so, sharing the intent with the actual perpetrators, to commit larceny;

"Third, the he did so for the purpose of, or again with the intent or shared the intent of stealing from a building, bank, safe, vault or other depository of money, bonds or other valuables."

The defendant apparently contends that, because the judge did not further define the phrase "stealing from a building," by

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instructing the jury on the elements of a conviction under G. L. c. 266, s. 20 (stealing in a building), the jury could not have founded their convictions under G. L. c. 265, s. 21 (confining or putting in fear a person for the purpose of stealing), on this act.

The defendant's citation to Commonwealth v. Sollivan, 40 Mass. App. Ct. 284, 286 (1996), does not support this contention. There the Appeals Court reasoned:

"For over 100 years, it has been held that in order to obtain a conviction for the crime of larceny in a building, 'it is not enough [for the Commonwealth] to prove that the property stolen was in a building at the time of the theft, and that the defendant was the thief. It is necessary to show also that the property was under the protection of the building, placed there for safe keeping, and not under the eye or personal care of some one in the building.' Commonwealth v. Lester, 129 Mass. 101, 103 (1880). See Robinson v. Van Auken, 190 Mass. 161, 163, 165, 167-168 (1906). See also McDermott v. W.T Grant Co., 313 Mass. 736, 737 (1943) (shoplifting in a store 'would [not] . . . constitute larceny in a building under [G. L.] c. 266, s. 20, for the property was under the protection of the [store's] servants rather than that of the building')."

First of all, Sollivan involved the application of G. L. c. 266, s. 20, rather than G. L. c. 265, s. 21, the statute at issue here. Moreover Sollivan stands for the proposition that the Legislature never intended that shoplifting, a crime traditionally prosecuted under G. L. c. 266, s. 30 (1), and more recently under G. L. c. 266, s. 30A, be prosecuted under G. L. c. 266, s. 20. Id. at 285-286. Here the defendant was convicted of burglary and the judge's instruction, tracking the wording of the statute, was entirely proper. See Commonwealth v. Lewis, 346 Mass. 373, 377-378 (1963), cert. denied, 376 U.S. 933 (1964); Commonwealth v. Ronchetti, supra. Accordingly, no substantial likelihood of a miscarriage of justice resulted from this instruction.

7. Lack of specific unanimity and independence instructions. The defendant next argues several interrelated points which require some introductory explanation. The jury convicted the defendant of felony-murder in the first degree on two distinct felonies: stealing by confining and putting in fear, G. L. c. 265, s. 21;

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and burglary with assault on a person lawfully in a dwelling, G. L. c. 266, s. 14. The judge instructed the jury that they could convict the defendant of the burglary charge if they concluded that the Commonwealth had proved that the defendant shared the specific intent to commit one of two alternative felonies: larceny or stealing by confining or putting in fear.

In instructing the jury as to unanimity, the judge stated:

"I am going to repeat this, but I should say this to you: Obviously, in order to find the defendant guilty of felony murder, you must find that the Commonwealth has proved, initially, that the defendant, as a joint venturer, committed one or both of these felonies at issue, here.

"Your finding, if you do find that, must be unanimous. All of you deliberating must agree on the particular felony or felonies that you find the Commonwealth has proved. You may all agree that the Commonwealth has proved both of the felonies; you may all agree that the Commonwealth has proved one of the felonies; or, you may find that the Commonwealth has failed to [have] proved either of the felonies. The point is that, if you find that the Commonwealth has proved one or both of the felonies, all of you must agree."

Later, in giving curative instructions the judge stated:

"The other [than murder] verdict slips are pretty much self-explanatory. Each of them gives you an option of finding the defendant 'not guilty' or 'guilty' of the crime charged.

"Your verdicts must be unanimous, whichever way it is. There is no other option; it is 'guilty' or 'not guilty' of the crime charged."

On the basis of these instructions, the defendant first contends that the judge improperly declined to give instructions that the jury's verdict had to be unanimous as to which count on either or both crimes charged underlay the felony-murder conviction. The defendant further argues that the judge's failure to instruct the jury that the felony for a felony-murder conviction had to be

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independent of the homicide compounded the prejudice arising from the failure to give the requested instruction [Note 5].

The argument is that one or more jurors may have convicted the defendant of felony-murder as predicated on one count of a given underlying felony indictment, while others may have based their conviction on a different count of that same underlying felony indictment. If this occurred, the defendant asserts that such a conviction would lack unanimity because there would be no way to determine whether some members of the jury improperly based the felony-murder conviction on any of the counts pertaining to the deceased victim. As to the conviction based on the underlying felony of stealing by confining or putting in fear, some or all members of the jury could have based their vote to convict on the count alleging the mistreatment of the victim. If so, the act of binding and gagging her would not be independent of the act that killed her. Alternatively, as to the burglary-based conviction, because stealing by confining or putting in fear may have been the felony, some of the jury members could have convicted the defendant of felony murder based on the assault of binding and gagging the victim. Either way, contends the defendant, the instructions as given were prejudicial.

The judge should have provided both a unanimity instruction and, at least with regard to the felony-murder theory alleging stealing by confining or putting in fear as a prerequisite, an independence instruction. In Commonwealth v. Claudio, 418 Mass. 103 (1994), we concluded that "the elements of a breaking and entering in a residence in the night time sufficiently distinguish a violation of G. L. c. 266, s. 14, from armed assault in other circumstances, so as to justify treating a violation of that statute as predicating a charge of murder in the first degree by reason of felony-murder." Thus, the judge here did not err in declining to instruct the jury that they had to find that, whichever burglary count they relied on to convict, was sufficiently independent from the homicide. Accordingly, it is of no moment that the jury may have based the burglary on the underlying felony of stealing by confining or putting in fear as applicable to the victim; the burglary would still be sufficiently independent of the murder.

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Additionally, because the jury unanimously convicted the defendant of each count underlying this theory of felony-murder, this case is distinguishable from Commonwealth v. Conefrey, 420 Mass. 508 (1995), on which the defendant mistakenly relies. There we held that a requested unanimity instruction was required as to which acts gave rise to the conviction where the defendant was charged with multiple counts of rape, reasoning that "there exists the distinct [possibility] that the jury did not agree about which of the numerous incidents actually occurred. Some jurors may have convicted the defendant on the basis of one alleged incident, while others may have convicted him based upon any of the seven other incidents." Id. at 514. In the instant case this danger is not present because it is readily apparent that a unanimous jury concluded that the defendant committed each of the three charged acts of burglary under G. L. c. 266, s. 14.

In sum, because we conclude that the defendant's conviction on the felony-murder charge based on the burglary convictions is untainted, we need not consider the alternative theory based on G.L. c. 265, s. 21.

8. The defendant's knowledge of how the duct tape would be used. a. Confining by stealing or putting in fear charge. The defendant next challenges the judge's failure to instruct that the taping of victim's mouth could not be the basis for finding that the act of stealing by confining or putting in fear was done with a conscious disregard for human life, and, consequently, this charge could not underlie the felony-murder conviction [Note 6]. We have already concluded that the defendant's conviction under G. L. c. 266, s. 14, amply supports the felony-murder conviction.

b. Armed assault in a dwelling or assault and battery by means of a dangerous weapon charges. The defendant also argues that, because he did not know that the duct tape would be used as a dangerous weapon, the judge should have allowed his motion for a required finding of not guilty on the indictments charging armed assault in a dwelling, G. L. c. 265, s. 18A, and assault and battery by means of a dangerous weapon, G. L. c. 265, s. 15A (b). Because defense counsel

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objected to the denial of this motion, we review to determine "whether the evidence, considered in the light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact of the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Woodward, 427 Mass. 659, 682 (1998); Commonwealth v. Martino, [ 412 Mass. 267, 271272 (1992)1; Commonwealth v. Cordle, 404 Mass. 733, 738-739 (1989), S.C., 412 Mass. 172 (1992)." Commonwealth v. Coonan, 428 Mass. 823, 828 (1999).

The evidence, taken in the light most favorable to the Commonwealth, establishes that the defendant's coventurers entered the premises armed with a baseball bat and a pistol and assaulted the occupants, and that the defendant was aware of these weapons when he participated in the crime. Accordingly, the defendant's knowledge of how the duct tape would be used is irrelevant to the armed assault in a dwelling indictment and the judge did not err in instructing the jury accordingly.

The judge also denied the defendant's motion for a required finding of not guilty on the four counts of assault and battery by means of a dangerous weapon, pursuant to G. L. c. 265, s. 15A (b). With respect to the counts pertaining to Victor and his uncle, there was no error because the Commonwealth relied on the baseball bat, the gun, or both as satisfying the dangerous weapon requirement.

But the judge also instructed the jury that they could find that the duct tape, as used on the victim and her mother could constitute a dangerous weapon to support convictions on these charges. In Commonwealth v. Appleby, 380 Mass. 296, 304 (1980), we stated the applicable rule that "[w]eapons which are not dangerous per se, but which may be used in a dangerous fashion, may also be 'dangerous weapons.' . . . Generally it is held to be a question for the fact finder whether the, instrument was so used in a particular case."

Thus, the question becomes whether the evidence, taken in the light most favorable to the Commonwealth would permit a reasonable finder of fact to conclude beyond a reasonable doubt that (1) the defendant was aware that the duct tape would be used to bind any hostages the intruders encountered, and (2) the act of binding a hostage constitutes a dangerous use of duct tape, sufficient to view the tape as a dangerous weapon. See id. at 304-305; Commonwealth v. Ferguson, 365 Mass. 1, 8 (1974). With regard to the former, there was testimony indicating that

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the defendant knew duct tape would be used to tape at least one of the occupants' feet, hands, and mouth.

As to the latter, "[o]f course where the neutral object is in fact used to inflict serious injury, it would clearly be a dangerous weapon." Commonwealth v. Tarrant, 367 Mass. 411, 416 n.4 (1975) (affirming conviction of armed robbery where "dangerous weapon" was German shepherd dog). While the jury could have found that the tape was not used as a dangerous weapon, they were not required to do so, and the judge did not err in letting the jury decide this question of fact. As we noted in Commonwealth v. Appleby, supra at 307 n.5:

"Of course, the question whether a weapon is dangerous as used is always one for the fact finder. 'In resolving this issue the jury may consider the nature, size, and shape of the object as well as the way in which it is handled or controlled.' Commonwealth v. Tarrant, [supra at 4161. Thus the holding of the present case should not be construed to mean that any intentional unjustified touching with an object previously held in a different case to have been capable of being a dangerous weapon constitutes a crime . . . . A reasonable jury might well reach a different conclusion as to a riding crop when used in different circumstances." (Emphasis in original.)

Thus, once the Commonwealth established that the defendant knew that his confederates would use duct tape to subdue the occupants, the jury could permissibly infer from the resulting death that the tape was used as a dangerous weapon. Contrary to the defendant's apparent contention, the Commonwealth was not required to prove that the defendant believed the, other intruders would use the tape to harm the occupants. The judge instructed that jury that "[i]t is for you to determine, based on all the facts and circumstances, whether the duct tape, in this instance, qualifies as a dangerous weapon." Accordingly, as applied to these facts and drawing all inferences in the Commonwealth's favor as we must, the judge properly submitted the issue to the jury.

9. Ineffective assistance of counsel. The defendant next argues that his trial counsel's failure to request more favorable jury

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instructions [Note 7], or to object to the instructions discussed above constituted ineffective assistance of counsel. However, as we have consistently stated in the past:

"[I]f a defendant convicted of murder in the first degree is unable to show on his direct appeal that, as to an unpreserved claim of error, there is a substantial likelihood of a miscarriage of justice, he would not prevail by asserting as to the same issue the ineffectiveness of his counsel."

Commonwealth v. Wright, 411 Mass. 678, 682 (1992). Therefore, the defendant's counsel was not ineffective in failing to object to the jury instructions.

10. Duplicative convictions. In Commonwealth v. Gordon, 42 Mass. App. Ct. 601, 602 & n.1 (1997), the Commonwealth indicted the defendant on multiple counts of burglary under G. L. c. 266, s.14, each naming a different victim, despite the fact that the counts arose out of a single breaking and entering. The Appeals Court, relying on Commonwealth v. Levia, 385 Mass. 345, 347 (1982), concluded that the single act of breaking and entering could support only one conviction and dismissed all but one of the counts. Commonwealth v. Gordon, supra at 603-606.

Here, the Commonwealth correctly concedes that were we to follow the rule enunciated in Commonwealth v. Gordon, supra, we must dismiss all but one of the defendant's multiple convictions under G. L. c. 266, s. 14. We decline the Commonwealth's invitation to "reconsider" Commonwealth v. Gordon, supra.

Furthermore, we have previously held that, where a defendant is convicted of felony-murder, the underlying felony merges into the murder conviction as a lesser included offense. See, e.g., Commonwealth v. Gunter, 427 Mass. 259, 275-276 (1998); Commonwealth v. Payne, 426 Mass. 692, 702 (1998), citing Commonwealth v. Anderson, 425 Mass. 685, 692 (1997), and Commonwealth v. Raymond, 424 Mass. 382, 396 (1997). Because our analysis above compels the conclusion that the remaining conviction under G. L. c. 266, s. 14, is thus the sole

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basis of a felony-murder conviction, we vacate the convictions of burglary under G. L. c. 266, s. 14.

11. General Laws c. 278, s. 33E, review. The defendant also urges us to reduce his sentence on the basis of the aggregate effect of his claims of error and on the ground that his sentence (life without possibility of parole) was disproportionately harsh. The defendant asserts that, because death was inadvertent, his knowledge of the duct tape's potential danger was questionable, and where he merely acted as a lookout, the sentence was not "consonant with justice." However, the defendant was present throughout this incident, and accepted a share of the stolen property even after witnessing his companions' mistreatment of the uncle. We, therefore, do not consider the defendant's role in this crime to be a minor one. More importantly, our plenary review of the record indicates that the Commonwealth's case was a strong one and we see no basis for relief under G. L. c.278,s. 33E.

So ordered.