Criminal – Getaway driver – Joint venture

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Where a defendant was convicted of armed home invasion and armed and masked robbery, a substantial risk of a miscarriage of justice was created when the trial judge failed to instruct the jury that the commonwealth had to prove that the defendant, the alleged driver of a getaway car, knew that his coventurers were armed and masked.

Because of that instructional error, the judgment of conviction of home invasion is vacated the defendant’s three convictions of armed robbery are reduced to unarmed robbery.

“The defendants, Timothy M. Lavin and Nicholas Desiderio, appeal from convictions, after a Superior Court jury trial, of armed home invasion, G.L.c. 265, section18C; and three counts each of armed and masked robbery, G.L.c. 265, section17. Lavin also appeals from convictions of unlawfully carrying a firearm, G.L.c. 269, section10(a), as an armed career criminal, G.L.c. 269, section10G(c); unlawful possession of ammunition, G.L.c. 269, section10(h)(1), as an armed career criminal; and operating a motor vehicle after a suspension, G.L.c. 90, section23, and from the order denying their motion for a new trial. The trial judge failed to instruct the jury that the Commonwealth had to prove that Desiderio, the alleged driver of the getaway car, knew that his coventurers were armed and masked. Applying the Supreme Judicial Court’s decision in Commonwealth v. Silvelo, 486 Mass. 13 (2020), we conclude that this omission created a substantial risk of a miscarriage of justice, because the evidence against Desiderio, although sufficient, was not ‘“so overwhelming” that “there is no likelihood that the omitted instruction materially influenced the jury’s verdict[].”‘ …

“We further conclude that the judge who considered the defendants’ motion for a new trial (this was a judge other than the trial judge) did not err in denying that motion, which sought inquiry of a juror, where a witness friendly to Lavin stated after trial that one of the jurors was an umpire in a softball league in which the witness and Lavin had played. We also conclude that the trial judge acted within his discretion in admitting a State trooper’s testimony about cell site location information (CSLI) evidence, at least as the trooper qualified it. Finally, we conclude that the trial judge properly denied the defendants’ various motions to suppress evidence obtained from searches conducted pursuant to search warrants of Lavin’s home and for both defendants’ CSLI data. We affirm Lavin’s convictions. As to Desiderio, because of the instructional error, we vacate the judgment of conviction of home invasion and set aside the verdict; we reduce his three convictions of armed robbery to unarmed robbery and remand for resentencing on those convictions. …

“As the Supreme Judicial Court has held, when the jury are not instructed on an element of the crime, the omission creates a substantial risk of a miscarriage of justice unless the evidence is ‘“so overwhelming” that “there is no likelihood that the omitted instruction materially influenced the jury’s verdict[]”‘ (citation omitted). Silvelo, 486 Mass. at 18. Because the evidence of Desiderio’s knowledge does not meet that standard, we conclude that the instructional omission here created a substantial risk of a miscarriage of justice. …

“This is not to say that the inferences of Desiderio’s knowledge of the intruders’ use of weapons and masks were not sufficient. But the inferences were not ‘so overwhelming’ that we can be fully confident that the jury, if instructed on the need to find Desiderio’s knowledge in order to convict, would have done so. …

“The judgments against Lavin, and the orders denying the defendants’ motions to suppress and for a new trial are affirmed. As for the judgments against Desiderio, consistent with the Commonwealth’s request and the defendant’s acknowledgment of our authority to do so, we reduce his three convictions of armed robbery to unarmed robbery, and we remand the matter for resentencing on those convictions. We vacate the judgment against Desiderio on the charge of home invasion and set aside the verdict, leaving the Commonwealth free to retry him on that charge if it chooses.”

Dissenting judge’s comments

Ditkoff, J., with whom Meade, J., joins. “The concept of a ‘substantial risk of a miscarriage of justice’ can be distilled to a simple test: ‘A substantial risk of a miscarriage of justice exists when we have a “serious doubt whether the result of the trial might have been different had the error not been made.”‘ … Thus, where we seriously doubt that the conviction is untainted by the error, we reverse. Where we have no serious doubt whether the outcome was changed by the error, we affirm. Because this is the test that should be applied in this case, I respectfully dissent.

“It is worth considering what we do whenever we depart from this test. We announce to the public that, despite the fact that we have no serious doubt the outcome would have been the same without the error, we are ordering a new trial anyhow. It is hard to understand, and harder to explain, why we would reverse a criminal conviction on the basis of an unpreserved error where we have no serious doubt about the correctness of the result. …

“As the case law establishes that the standard for reviewing whether a substantial risk of a miscarriage of justice is created by the omission of an instruction regarding a defendant’s knowledge that a joint venturer is armed or masked is to determine whether we have a serious doubt whether the result of the trial might have been different had the error not been made, I respectfully dissent.”

Commonwealth v. Lavin (and 10 companion cases) (Lawyers Weekly No. 11-057-22) (52 pages) (Sacks, J.) (Ditkoff, J., with whom Meade, J., joins, dissenting) Pretrial motions to suppress evidence were heard by Richard T. Tucker, J.; the cases were tried before him; and a motion for a new trial was considered by Michael K. Callan, J., in Superior Court. Justin Drechsler on appeal for Timothy M. Lavin; MarySita Miles on appeal for Nicholas Desiderio; Nathaniel R. Beaudoin for the commonwealth (Docket Nos. 18-P-1652 and 18-P-1653) (June 23, 2022).

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