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SJC-12058

               COMMONWEALTH   vs.   WAYNE MIRANDA.



                          May 12, 2016.


Practice, Criminal, Postconviction relief.   Joint Enterprise.
     Evidence, Joint venturer.


     Wayne Miranda was convicted of murder in the second degree
and other offenses in 2008, and this court affirmed the
convictions. Commonwealth v. Miranda, 458 Mass. 100 (2010),
cert. denied, 132 S. Ct. 548 (2011). Miranda has filed a
petition in the Federal District Court for a writ of habeas
corpus. A Federal judge stayed the petition and held it in
abeyance to permit Miranda to exhaust State remedies. Miranda
accordingly filed a motion for relief from unlawful restraint
pursuant to Mass. R. Crim. P. 30 (a), as appearing in 435 Mass.
1501 (2001), and a judge in the Superior Court denied the
motion. We granted Miranda's application for direct appellate
review. We affirm.

     At issue is whether, on direct appeal, we properly applied
Commonwealth v. Zanetti, 454 Mass. 449 (2009), to determine that
the evidence was sufficient to support his convictions. In
Zanetti, we clarified the legal principles concerning joint
venture liability. Id. at 461-468. In particular, we stated
that, in an appeal following a conviction, we will "examine
whether the evidence is sufficient to permit a rational juror to
conclude beyond a reasonable doubt that the defendant knowingly
participated in the commission of the crime charged, with the
intent required to commit the crime, rather than examine the
sufficiency of the evidence separately as to principal and joint
venture liability." Id. at 468. Miranda argues that this
reformulation applies only to cases tried after we decided
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Zanetti and that our application of it to his case violated ex
post facto principles and his due process rights.

     Since deciding Zanetti, we have made it clear that "[w]e
apply the principles clarified in [Zanetti] to claims concerning
the sufficiency of the evidence of joint venture, even though
the trial preceded that decision." Commonwealth v. Benitez, 464
Mass. 686, 689 n.5 (2013). "[T]he only prospective application
of the principles announced in our Zanetti decision pertains to
our recommended jury instruction." Commonwealth v. Jansen, 459
Mass. 21, 28 n.20 (2011). Moreover, our decision in Zanetti
"d[id] not enlarge or diminish the scope of existing joint
venture liability," but was intended simply "to provide clearer
guidance to jurors and diminish the risk of juror confusion in
cases where two or more persons may have committed criminal
acts." Zanetti, supra. Nothing in Zanetti criminalized any
action that was lawful when Miranda committed it or deprived
Miranda of any previously available defense. Nor can it be said
that our decision in Zanetti was "unexpected and indefensible by
reference to the law which had been expressed prior to the
conduct at issue." Rogers v. Tennessee, 532 U.S. 451, 461
(2001), quoting Bouie v. Columbia, 378 U.S. 347, 354 (1964). As
our discussion in Zanetti makes clear, our decision was an
outgrowth of decades, even centuries, of common law. Zanetti,
supra at 461-468.

     Finally, even if, as Miranda argues, he was entitled to
have the evidence of principal liability and joint venture
liability evaluated separately, the outcome would have been no
different. As we said in Miranda's direct appeal, the evidence
presented at trial was sufficient to convict Miranda as either
the principal shooter or as a joint venturer. There were three
witnesses, Reis, Andrade, and Rodriguez, all of whom "observed
events that immediately preceded the shooting but did not see
the shooting itself." Miranda, supra at 101. Reis testified
that she "saw [Miranda] hand the gun to [his brother] Fagbemi,
saw Fagbemi raise his arm and point the gun . . . and then heard
two shots." Id. at 103. Andrade and Rodriguez heard the shots,
saw the two brothers, but "did not see [Miranda] hand the gun
over to anyone else." Id. "Andrade saw one of the Miranda
brothers pass the gun to the other, but could not say which one
passed the gun or which one received the gun." Id. at 103-104.
Based on this testimony, "[t]he jury reasonably could have
inferred the defendant knowingly participated in the shooting by
committing the shooting himself (crediting the testimony of
Andrade and Rodriguez) or by supplying Fagbemi with the means to
commit the shooting (handing him the gun), with the intent that
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Fagbemi do so (crediting Reis's testimony." Id. at 114. Even
under the pre-Zanetti formulation, the evidence was sufficient
to establish either principal or joint venture liability under
Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

     The order denying Miranda's motion for relief from unlawful
restraint is affirmed.

                                   So ordered.

     Robert F. Shaw, Jr., for the defendant.
     Shoshana E. Stern, Assistant District Attorney, for the
Commonwealth.
