Criminal – Felony-murder rule

Listen to this article

Where a jury convicted a defendant of two counts of felony-murder in the first degree, the interests of justice require that the degree of guilt be reduced to that of murder in the second degree.

“We address, in this opinion, the scope of criminal liability under the common-law felony-murder rule. The charges stem from an attempted armed robbery and home invasion into a Lowell townhouse shared by Hector and Tony Delgado. Two armed gunmen fatally shot the brothers during the botched robbery. The defendant was not present at the scene. The Commonwealth alleged that the defendant was liable as an accomplice to felony-murder because he supplied one of the gunmen with a pistol and provided hooded sweatshirts to the intruders to help them conceal their identities. A Superior Court jury convicted the defendant of two counts of felony-murder in the first degree based on the predicate felonies of an attempted commission of armed robbery, home invasion, unlawful possession of a firearm, and unlawful possession of ammunition. …

“We conclude that the Commonwealth introduced sufficient evidence to prove that the defendant knowingly participated in the underlying felonies and, therefore, was an accomplice to felony-murder. We conclude also that the defendant’s other challenges do not raise error warranting reversal or a new trial as to any of the convictions. Nonetheless, in the circumstances of this case, we are convinced that, pursuant to our authority under G.L.c. 278, section 33E, the interests of justice require that the degree of guilt be reduced to that of murder in the second degree.

“As to whether we should abolish the common-law felony-murder rule, a unanimous court concludes that the felony-murder rule is constitutional. However, a majority of Justices, through the concurrence of Chief Justice Gants, conclude that the scope of felony-murder liability should be prospectively narrowed, and hold that, in trials that commence after the date of the opinion in this case, a defendant may not be convicted of murder without proof of one of the three prongs of malice. As a result, in the future, felony-murder is no longer an independent theory of liability for murder. Rather, felony-murder is limited to its statutory role under G.L.c. 265, section1, as an aggravating element of murder, permitting a jury to find a defendant guilty of murder in the first degree where the murder was committed in the course of a felony punishable by life imprisonment even if it was not committed with deliberate premeditation or with extreme atrocity or cruelty. Because the majority holding as to common-law felony-murder liability is prospective in effect, it does not affect the judgment reached in this case. …”

            Commonwealth v. Brown (Lawyers Weekly No. 10-151-17) (65 pages) (Gaziano, J.) (Gants, C.J., concurring, with whom Lenk, Hines and Budd, JJ., join) (Gaziano, J., concurring, with whom Lowy and Cypher, JJ., join) Cases tried before Hamlin, J., in Superior Court. David H. Mirsky, of Mirsky & Petito, for the defendant on appeal; Melissa Weisgold Johnsen for the commonwealth (Docket No. SJC-11669) (Sept. 20, 2017).