Criminal – Murder – Inconsistent verdicts

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Where a jury found that a defendant engaged in conduct that did not result in death for purposes of an attempted murder charge but also found that the defendant engaged in conduct that did result in death on a first-degree murder charge, the verdicts were not inconsistent.

Denial of motion to vacate affirmed.

“The defendant, Joshua Hart, and his girlfriend entered the home of an elderly couple, Thomas Harty and Joanna Fisher, stabbed and suffocated the two victims, stole their valuables, and fled the Commonwealth in the victims’ car. Harty died immediately. Fisher, a seventy-seven year old woman who was nonambulatory and a full-time wheelchair user, initially survived the assault but later succumbed to her injuries; the cause of death was complications from multiple stab wounds to her ears, neck, left flank, and chest. In Commonwealth v. Hart, 493 Mass. 130 (2023), we affirmed the defendant’s convictions of, inter alia, murder in the first degree for the killing of each victim; and as to Fisher, we also affirmed the defendant’s conviction of attempted murder.

“In connection with our G.L.c. 278, §33E, review, we noted that the jury instruction for the charge of attempted murder erroneously included the failure to complete the murder as an element of the offense. … As a result, the jury found that the defendant engaged in conduct that did not result in Fisher’s death for purposes of the attempted murder charge but also found that the defendant engaged in conduct that resulted in Fisher’s death on the charge of murder in the first degree. We raised the question whether these were ‘legally inconsistent verdicts’ such that both ‘must be set aside.’ … To allow the defendant the benefit of avoiding ‘potential constraints involving gatekeeper petitions,’ we permitted him the option to raise the issue with this court in the first instance. …

“The defendant did so, filing a motion to vacate his convictions of murder in the first degree and attempted murder as legally inconsistent; in turn, we transferred the motion to the Superior Court for consideration of the motion as well as the following specific, related questions: first, whether the ‘acts providing evidence of attempted murder of Fisher [were] sufficiently separate and distinct such that the jury could have found the defendant guilty of attempted murder in connection with one act (or set of acts) and [murder in the first degree] in connection with another act (or set of acts), depending on its determination regarding which acts caused Fisher’s death’; and second, if the jury could so find, whether the defendant ‘receive[d] adequate notice of these alternate theories.’ In a thorough, well-reasoned opinion, the motion judge, who was also the trial judge, answered ‘yes’ to both questions and denied the defendant’s motion. The defendant timely appealed. We affirm. …

“In sum, the jury heard evidence of the defendant’s attempt to smother Fisher with pillows, which did not result in her death, and of the multiple stabbings to her ears, neck, side, and chest, which did. Based on this evidence of these separate and distinct acts, we agree with the motion judge that the verdicts of guilty of attempted murder and murder in the first degree are not legally inconsistent. We therefore are not faced here with the rare ‘breed’ of cases requiring judicial intervention to set aside the verdicts. …

“On appeal, the defendant contends that the aforementioned acts — smothering Fisher with pillows and inflicting multiple stab wounds throughout her body — were not separate and distinct; he maintains that the acts comprised one continuous criminal transaction and that therefore the jury could not have found that some acts resulted in a failed attempt to murder while others resulted in murder. Because the acts here — smothering on the one hand, and multiple stabbings of the victim’s ears, neck, side, and chest, on the other — were not ‘bound up with and necessary to each other,’ we disagree. Commonwealth v. Dykens, 473 Mass. 635, 645 (2016). …

“In sum, no substantial likelihood of a miscarriage of justice stemmed from the erroneous jury instruction. The defendant’s convictions are not legally inconsistent because the evidence before the jury was sufficient to show separate and distinct acts underpinning each conviction, and the defendant received adequate notice of the acts relevant for each conviction. …

“We affirm the order denying the defendant’s motion to vacate his convictions of murder in the first degree and attempted murder.”

Commonwealth v. Hart (Lawyers Weekly No. 10-138-25) (15 pages) (Wendlandt, J.) A motion for postconviction relief was heard by John A. Agostini, J., in Superior Court. Stephen Paul Maidman on appeal for the defendant; Cynthia M. Von Flatern for the commonwealth (Docket No. SJC-13217) (Dec. 26, 2025).

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