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Lastarandre Bell Ruling

Lastarandre Bell Ruling

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Published by: Greg Saulmon on Aug 02, 2011
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COMMONWEALTH
vs.
Lastarandre BELL. SJC-10394. December 10, 2010. - August 1, 2011. 
Homicide. Armed Home Invasion. Burning a Dwelling House. Constitutional Law,
Assistance of counsel.
Felony-Murder Rule. Practice, Criminal,
Assistance of counsel, Empanelment of jury,Voir dire, Postconviction relief, Capital case, Instructions to jury.
Jury and Jurors. 
INDICTMENTS found and returned in the Superior Court Department on February 13, 2007. The cases were tried before
Cornelius J. Moriarty, II,
J., and a motion for postconviction relief,filed on June 23, 2009, was heard by him. 
Joseph A. Hanofee
for the defendant. 
Katherine E. McMahon,
Assistant District Attorney, for the Commonwealth. Present: Ireland, Spina, Cordy, Botsford, Gants, & Duffly, JJ. BOTSFORD, J. A Superior Court jury convicted the defendant Lastarandre Bell of murder in the first degreeof Julie Ann Nieves on a theory of felony-murder. [FN1] The defendant also was convicted of armed home invasion, arson, and two charges of violation of an abuse prevention order. Thedefendant appeals both from his convictions and from the denial of his motion for a new trial.He claims that (1) the merger doctrine renders legally impossible his felony-murder convictionbecause the underlying felony and the homicide share the same conduct, and defense counselwas ineffective for not raising the issue; and (2) defense counsel was ineffective as well inseveral other respects, including the manner in which he investigated and tried the case. Thedefendant argues also that relief is warranted pursuant to G.L. c. 278, § 33E. For reasonsdifferent from those advanced by the defendant, we conclude, pursuant to our review of theentire case under § 33E, that the absence of an instruction on felony-murder in the seconddegree with arson as the predicate felony requires a reversal of the defendant's conviction of felony-murder in the first degree. [FN2] Accordingly, we reverse the defendant's convictionof that crime, set aside the verdict, and remand the case to the Superior Court for further proceedings. On remand, at the Commonwealth's option, a verdict of guilty of felony-murder inthe second degree may be entered in lieu of a new trial on the murder indictment. We affirm thedefendant's other convictions. 
Background.
The events giving rise to this case resulted in a grand jury charging the defendantwith nine separate offenses by indictments handed up in February of 2007:(1) murder in thefirst degree of Julie Ann Nieves, G.L. c. 265, § 1; (2) arson, G.L. c. 266, § 1; (3) armed homeinvasion, G.L. c. 265, § 18C; (4)-(5) two charges of assault by means of a dangerous weapon,a knife, against Julie Ann Nieves and Tiffany Cruz, respectively, G.L. c. 265, § 15B (
b
); (6)assault and battery by means of a dangerous weapon, a hammer or knife, against Julissa Cruz,G.L. c. 265, § 15A (
b
); (7) assault and battery by means of a dangerous weapon, gasoline,against Larry Key, G.L. c. 265, § 15A (
b
); and (8)-(9) two charges of violating an abuseprevention order, G.L. c. 209A, § 7. All nine charges did not, however, reach the jury. Before jury empanelment began, the prosecutor stated that the Commonwealth would file a nolle
 
prosequi on Counts 4 and 5, and the Commonwealth did not proceed on either charge at trial.[FN3] At the close of the Commonwealth's case-in-chief, defense counsel moved for entry of arequired finding of not guilty on Count 6, which the Commonwealth did not oppose and whichthe trial judge allowed. As indicated, the jury convicted the defendant on the charges of murder,arson, armed home invasion, and the two charges of violation of an abuse prevention order (Counts 1, 2, 3, 8, and 9). [FN4] The jury acquitted the defendant of the charge of assault andbattery by means of a dangerous weapon against Larry Key (Count 7). After he filed a notice of appeal from his convictions, the defendant filed in this court a motionfor a new trial that we remanded to the Superior Court for disposition. The trial judge denied themotion. We summarize the facts as the jury could have found them at trial. On January 7, 2007, JulieAnn Nieves, her daughter Jessica Nieves, and her son Daniel Nieves were living at 11 Warner Street in Springfield. [FN5] This was the home of Julie Ann's sister, Caroline Cruz, who livedthere with her two daughters, Tiffany Cruz and Julissa Cruz, [FN6] and Tiffany's boy friend,Larry Key. The defendant, at the time Jessica's boy friend, had moved with the Nieves family toSpringfield from New York City in October, 2006, and into Caroline's apartment. On November 3, 2006, both Jessica and Caroline obtained restraining orders against the defendant. Accordingto Jessica, the basis for the restraining orders was the fact that the defendant had "madethreatening comments towards [her] as far as hurting [her] or [her] family." On November 6, thedefendant moved out of 11 Warner Street to an apartment building a short distance away. On the night of January 7, 2007, all the residents of the Warner Street apartment were at home.The defendant dialed Daniel's Nextel cellular telephone twice, both calls occurring shortly before9:30 P.M. [FN7] The first time, the defendant asked to speak with Jessica, but Daniel ignoredthe call. A few minutes later, the defendant called Daniel again, asking in an angrier tone tospeak to Jessica; Daniel again ignored the call. Around 9:30 P.M., the occupants of the home,at the time in various rooms, heard what sounded like glass shattering and also heard Julissascream. Arriving in the kitchen area, they saw the defendant approaching them from the livingroom where a window had been broken. He was holding a bottle or container in his hand fromwhich he sprayed some type of liquid around him as he ran toward those present in or justoutside of the kitchen. [FN8] Key saw a knife sticking out of the defendant's pocket and alsosaw the defendant, while holding something sharp, swing at Julie Ann and Tiffany as they ranpast him. 
[FN9] The family members together ran into Caroline's bedroom and locked thedoor. They realized that the victim was not with them. Caroline heard an argumentensuing between the victim and the defendant on the other side of the closeddoor; Jessica and Daniel heard the victim scream. They all then emerged from thebedroom. At that point, the victim's bedroom was on fire, the defendant was tryingto open the front door and his leg appeared to be on fire, and the victim, appearingto be on fire herself, was walking slowly toward the front door. The defendant leftthe house; Key chased him, but quickly abandoned the pursuit. Jessica eventuallygrabbed a sheet or quilt and wrapped it around her mother to put out the flames.
 
When police arrived, the house itself was on fire, and the victim was wrapped in blanketson the front porch. After speaking with the family, four police officers, in a police cruiser,searched for the defendant. They pulled over before arriving at the defendant's nearbyapartment to discuss their strategy and saw the defendant walking toward them,
 
saying, "I'm here. I'm the one you're looking for. I'm the one who started the fire." [FN10]After the officers placed the defendant in handcuffs, Officer Kevin Ashworth conducteda patfrisk search, which revealed matches in the defendant's pocket. The defendantstated, "That's what I used to start the fire." The officers told the defendant to stop talkingand read him his Miranda rights. Realizing the defendant had burns on his face, hands, andlegs, the officers called for an ambulance. As the defendant was being brought toward theambulance, another officer commented that the defendant smelled of gasoline, and thedefendant again stated, "That's what I used to start the fire." [FN11] A substantially burned red plastic gasoline can was found in a bedroom at 11 Warner Street,and a black gasoline filler pipe or nozzle was found in the living room area. Liquid takenfrom the gasoline can tested positive for gasoline residue, as did the black plastic nozzle.During a subsequent search of the defendant's nearby apartment, police found an empty,unburned red plastic gasoline can in the front hall closet. The victim died on January 29, 2007, as a result of the burn injuries she received onJanuary 7. 
Discussion.
1.
Merger.
The defendant argues that his conviction of felony- murder cannotstand because the predicate felony, armed home invasion, effectively merged into the killingof the victim--that is, he claims, the acts of personal violence against the victim that causedher death were the same acts that satisfied one of the elements of armed home invasion,and therefore there was no separate felony on which the felony-murder conviction could bebased. The defendant did not raise this claim before or during the trial, but he presented itas one of the grounds in support of his motion for a new trial, arguing that his trial counselwas ineffective for failing to make the merger argument. We review the issue to determinewhether there is a substantial likelihood of a miscarriage of justice. See
Commonwealth v.Bly,
444 Mass. 640, 648 (2005) (when unpreserved error offered as ground for new trialbased on ineffective assistance of counsel in case of murder in first degree, court appliessubstantial likelihood of miscarriage of justice standard of review). "[I]n felony-murder the conduct which constitutes the felony must be separate fromthe acts of personal violence which constitute a necessary part of the homicide itself."
Commonwealth v. Gunter,
427 Mass. 259, 272 (1998), quoting
Commonwealth v. Quigley,
 391 Mass. 461, 466 (1984), cert. denied, 471 U.S. 1115 (1985) (quotations and citationomitted). Accord
Commonwealth v. Pagan,
440 Mass. 84, 92 n. 8 (2003). The predicatefelony of armed home invasion has four separate elements. In particular, "the Commonwealth must show that the defendant (1) 'knowingly enter[ed] the dwellingplace of another'; (2) 'knowing or having reason to know that one or more persons arepresent within' (or entered without such knowledge but then remained in the dwellingplace after acquiring or having reason to acquire such knowledge); (3) 'while armed with adangerous weapon'; and (4) 'use[d] force or threaten[ed] the imminent use of force uponany person within such dwelling place whether or not injury occur[red], or intentionallycause[d] any injury to any person within such dwelling place.' " 
Commonwealth v. Doucette,
430 Mass. 461, 465-466 (1999), quoting G.L. c. 265, §18C. The issue of merger presented here by the defendant arises in connection with thefourth element; the question is whether there was evidence presented that the defendantused force, threatened the imminent use of force, or intentionally injured someone inthe apartment, independent of the burning of the victim that ultimately caused herdeath. "Whether a particular felony is sufficiently independent from a killing to support afelony-murder conviction is a question that defies categorical analysis; we therefore review

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