Criminal – Murder – Armed home invasion

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Where a defendant was convicted of murder in the first degree, armed home invasion and illegal possession of a firearm, the armed home invasion conviction must be vacated because of ambiguity in the indictment.

“The defendant was indicted on a single charge of armed home invasion. The indictment specified that the charged offense occurred in North Adams on July 25, 2006, but did not identify the victim or the home. At trial the prosecutor presented evidence tending to show that the defendant (1) knowingly entered the dwelling place of both [Patricia] Higgs and [Theresa] Iberra; (2) knew that one or more persons were present within those dwelling places; (3) was armed with a handgun when so entering; and (4) used force against Higgs and threatened to kill the occupants of Iberra’s apartment. …

“Here, the grand jury were presented with evidence sufficient to charge the defendant with armed home invasion of both apartments but returned only one indictment that did not specify the apartment or the victim. The trial jury were then presented with similar testimony that could have supported convictions of armed home invasion as to both incidents. Due to the ambiguity in the indictment there is thus ‘a substantial risk that the defendant was convicted of a crime for which he was not indicted by a grand jury.’ … That is, we cannot be certain that the defendant was not indicted regarding his actions at Iberra’s home but convicted for his actions at Higgs’s home. …

“… The judge’s instruction on both armed home invasion and on the predicate felony for felony-murder limited the armed home invasion charge to the incident at Higgs’s apartment in which the victim was killed. This instruction, however, cannot correct the ambiguity in the indictment as the intent of the grand jury remains unclear. … Constitutional error of this sort does not permit harmless error analysis and, accordingly, we reverse the defendant’s conviction of armed home invasion. …

“The jury instruction provided by the judge did, however, prevent the remainder of the trial from being tainted. …”

The murder conviction will be affirmed, as (1) the defendant was not unfairly prejudiced by evidence of threats made against a witness and (2) trial counsel’s decision to advise the defendant not to testify was not manifestly unreasonable.

Commonwealth v. Smith (Lawyers Weekly No. 10-063-11) (31 pages) (Spina, J.) (SJC) Cases tried before Agostini, J., and a motion for a new trial heard by him. Stewart T. Graham Jr. for the defendant on appeal; Karen Carlo for the commonwealth (Docket No. SJC-10078) (April 26, 2011).