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13-P-1730                                                 Appeals Court

                     COMMONWEALTH vs. DANIEL LEE LOPEZ.


                               No. 13-P-1730.

            Essex.       November 10, 2014. - July 29, 2015.

               Present:    Rubin, Brown, & Maldonado, JJ.


Homicide. Felony-Murder Rule. Robbery. Practice, Criminal,
     Required finding, Instructions to jury, Lesser included
     offense. Evidence, Consciousness of guilt, Identification,
     Testimony before grand jury. Grand Jury. Witness.



     Indictments found and returned in the Superior Court
Department on October 2, 2009, and February 28, 2011.

     After review by this court, 80 Mass. App. Ct. 390 (2011),
the cases were tried before David Lowy, J.


     Amy M. Belger for the defendant.
     David F. O'Sullivan, Assistant District Attorney, for the
Commonwealth.


    RUBIN, J.        The defendant was indicted on charges of first

degree murder and unarmed robbery.       After the trial court

allowed a motion to dismiss so much of the murder indictment as

was grounded on a theory of felony-murder, the Commonwealth
                                                                      2


appealed.    We reversed that order, see Commonwealth v. Lopez, 80

Mass. App. Ct. 390 (2011) (Lopez I), and reinstated the

indictment.    An additional indictment was then brought against

the defendant, charging manslaughter.     On remand, after a jury

trial, the defendant was acquitted of felony-murder, and was

convicted of involuntary manslaughter on a theory of wanton and

reckless conduct, and of unarmed robbery.     On the involuntary

manslaughter charge, he was sentenced to fifteen to eighteen

years in State prison, and on the unarmed robbery charge he was

sentenced to a subsequent five years of probation.     He now

appeals.    We address each issue presented in turn.

    1.     Sufficiency of the evidence.   The defendant argues

first that the evidence was insufficient on the charge of

involuntary manslaughter.     The defendant's argument is that the

conduct that formed the basis of his involuntary manslaughter

conviction (a single punch to the victim's head) did not

"involve[] a high degree of likelihood that substantial harm

[would] result to another."     Commonwealth v. Welansky, 316 Mass.

383, 399 (1944) (internal citations omitted).     This argument is

difficult to maintain in light of our prior decision in Lopez I.

We need not rehearse in detail the facts that the jury might

have found viewing the evidence in the light most favorable to

the Commonwealth, as they turned out to be essentially the same

as those outlined in Lopez I, where the court examined the
                                                                    3


evidence before the grand jury.   This case involves a "sucker"

punch by the defendant to the head of an utterly unprepared

delivery person who was walking up steps carrying Chinese food

ordered by the defendant for delivery to an address that was not

his own.   This punch from above sent the victim, Thu Nguyen,

falling backwards until his head struck the sidewalk with

audible impact.   The victim began to gasp for air and to foam at

the mouth.   The defendant got down on his knees next to the

victim, not to aid him, but to search his pockets, stealing

$125, as well as the Chinese food.   Fifteen hours later, his

skull fractured by impact with the sidewalk, Nguyen died.

    In Lopez I, we concluded that the evidence was sufficient

to provide the grand jury with probable cause to believe that

felony-murder had been committed in that the defendant's act was

"committed with conscious disregard of the risk to human life,"

that is, that because of the manner or method of the commission

of the underlying felony, here, unarmed robbery, the crime

created a "foreseeable risk of death."   Lopez I at 394.

    As we explained, "Conscious disregard demands conduct more

dangerous than that required for involuntary manslaughter. . . .

Involuntary manslaughter requires wanton or reckless conduct,

that is, conduct involving 'a high degree of likelihood that

substantial harm will result to another.' . . . Conduct evincing

conscious disregard . . . requires more than a mere threat of
                                                                   4


substantial physical harm; conduct supporting felony-murder

liability must pose a foreseeable risk of actual loss of life."

Id. at 394 n.5 (internal citations omitted).

    Having reached the conclusion in Lopez I that evidence

essentially identical to that put before the petit jury in this

case was sufficient to demonstrate probable cause that felony-

murder had been committed under a conscious disregard of risk to

human life theory, a fortiori such evidence was sufficient to

support at least a finding of probable cause that the defendant

committed involuntary manslaughter on a wanton and reckless

theory.

    To be sure, "probable cause is 'considerably less exacting

than a requirement of sufficient evidence to warrant a guilty

finding.'"   Lopez I at 393, quoting from Commonwealth v. O'Dell,

392 Mass. 445, 451 (1984).   Our decision in Lopez I therefore

does not actually control this case.   But the evidence of the

defendant's conduct produced at trial here was sufficient to

support the jury's finding beyond a reasonable doubt that he

committed the crime of involuntary manslaughter by delivering

the deadly blow to the victim.   We therefore independently

conclude, for the reasons set forth in Lopez I, that the

evidence presented to the jury here was sufficient to

demonstrate the high degree of likelihood that substantial harm
                                                                    5


would result essential to support the defendant's conviction of

involuntary manslaughter.

    2.   Submission of the felony-murder charge.   The defendant

next argues that he should not have faced trial for felony-

murder, and that the submission of that count to the jury

prejudiced him by inviting the jury to compromise on a verdict

of involuntary manslaughter.

    The defendant puts forward two theories for why the felony-

murder charge should not have been submitted to the jury.     The

first is that the evidence was insufficient to show that he

acted with a conscious disregard of the risk to human life.

This argument is uphill in light of Lopez I, something the

defendant acknowledges.

    The second argument is that the merger doctrine barred

submission of the felony-murder charge to the jury.   In

Commonwealth v. Bell, 460 Mass. 294, 300 (2011), the Supreme

Judicial Court stated that "[i]n felony-murder the conduct which

constitutes the felony must be separate from the acts of

personal violence which constitute a necessary part of the

homicide itself" (citations omitted).   In Bell, the defendant

had been convicted of felony-murder with a predicate felony of

armed home invasion.   The fourth element of that predicate

felony was the use of force or the threat of the imminent use of

force.   See ibid.   Although the court found that the only force
                                                                    6


the defendant actually used was the force that led to the

victim's death, see id. at 300-301, the felony-murder conviction

was ultimately reversed on other grounds.    The court also found

that there was an additional threat of imminent force proven.

See id. at 302.   But the court held that because of the merger

doctrine, on any retrial of the felony-murder charge with armed

home invasion as the predicate felony, "the jury must be

instructed," as they were not in the first trial, "that they may

not find the defendant guilty of felony-murder unless, with

respect to armed home invasion, they find that the Commonwealth

has proved the fourth element of the crime, i.e., conduct of the

defendant that was separate and distinct from the acts that

caused the victim's death."   Id. at 303.1

    In light of Bell, there is some strength to the defendant's

argument about merger, as in this case the element of stealing

or taking "by force and violence, or by assault and putting in

fear," G. L. c. 265 § 19(b), essential to the conviction of

unarmed robbery, was proved by the same conduct that caused the

death of the victim.




    1
       There had been no objection to the instruction at the
first trial, and, in light of the conclusion that a retrial was
required on other grounds, the court did not determine whether
the omission of this language from the instruction created a
substantial likelihood of a miscarriage of justice. 460 Mass.
at 302.
                                                                       7


    On the other side of the balance, the Commonwealth cites

Commonwealth v. Christian, 430 Mass. 552, 556 (2000).    In

Christian, the defendant was convicted of armed robbery, which,

like unarmed robbery in the instant case, requires a taking "by

force and violence, or by assault and putting in fear."       Ibid.,

citing G. L. c. 265, §§ 17, 19.   Yet the court there stated that

"[w]e can envision no situation in which an armed robbery would

not support a conviction of felony-murder" under the merger

doctrine.    Ibid.

    The defendant argues in essence that Bell overruled

Christian.   It is an interesting question whether and how the

two decisions can coexist; one that the Supreme Judicial Court

doubtless will one day have to address.    But we need not here

decide whether the trial judge should have declined to charge

the jury on felony-murder, because the defendant's argument

founders on his need to show prejudice.

    The defendant argues that a conviction of involuntary

manslaughter in a case in which felony-murder was improperly

submitted to the jury may reflect an improper compromise verdict

that would not have entered but for the jury's having had before

it the improper felony-murder charge.     There is some strength to

this argument in both logic and law.    Although Massachusetts

appellate courts have not squarely decided the issue, several
                                                                    8


States have reversed involuntary manslaughter convictions in

such circumstances.

    The defendant would rely on cases from these States, but,

as he conceded at argument, there is no State in which, in these

circumstances, the prejudice of a compromise verdict is

presumed.   In New Jersey, for example, if a jury has deliberated

upon the guilt of an accused for a greater offense than is

warranted by the evidence, the defendant must demonstrate that

the verdict on the lesser included offense constituted an

"unjust result" if he is to prevail on appeal.   State v. Wilder,

193 N.J. 398, 418 (2008).

    Even assuming arguendo that the felony-murder charge here

should not have been submitted to the jury, and even were we to

follow those States that sometimes invalidate lesser included

offense convictions in some such circumstances, we cannot

conclude that the conviction of involuntary manslaughter in this

case was unjust.   Because the defendant is unable to carry his

burden to meet such a standard, we conclude that his second

argument is without merit.

    3.   Jury instructions.   a.   Consciousness of guilt.   The

defendant next challenges the trial judge's sua sponte

consciousness of guilt instruction, which the judge gave

unexpectedly, and as to which the defendant preserved his claim
                                                                       9


of error by objecting at the first possible moment after the

instructions were finished.

    The defendant relies on Commonwealth v. Groce, 25 Mass.

App. Ct. 327 (1988), to argue that the instruction conveyed to

the jury that the judge believed it was the defendant who fled.

Groce, however, involved a case in which there was no dispute

that the individual fleeing from the scene was the perpetrator

of the crime.   The only issue at trial was identification.     Id.

at 331-332.   In those circumstances, the court concluded, the

consciousness of guilt instruction might "have conveyed the

notion to the jury that [the judge] believed that it was the

defendant who fled and, thus, that the victim's identification

testimony was accurate."   Id. at 332.   The consciousness of

guilt instruction there added nothing to the mix with respect to

guilt, since, if the defendant was the one who fled, he was also

guilty.

    In this case, identification was also at issue.    However,

there was no evidence from any witness to the fatal punch.      This

case, therefore, is controlled by Commonwealth v. Vick, 454

Mass. 418 (2009):   "Unlike Groce, the jury here could have found

that the defendant fled from the immediate scene of the [crime]

. . . without already having determined that the defendant was

the [perpetrator]."   Id. at 427.   Thus, even assuming the

instruction given in this case provided no greater emphasis than
                                                                   10


the instruction in Groce that it was for the jury to determine

whether the defendant fled the scene, and that consciousness of

guilt was relevant only if they did so, "[t]he defendant's

flight from the immediate scene of the [crime] . . . could be

considered by the jury as consciousness of guilt" evidence.

Ibid.

     b.   Involuntary manslaughter.   The defendant challenges two

portions of the jury instructions on involuntary manslaughter

that he claims are in error.   At one point the judge instructed

the jury:

          "So if the Commonwealth proves to you each of those
     three elements beyond a reasonable doubt, your verdict on
     involuntary manslaughter under a theory of wanton and
     reckless conduct would be guilty. If the Commonwealth
     fails to prove one or more of those elements to you beyond
     a reasonable doubt, under that theory of involuntary
     manslaughter, your verdict would be not guilty."

The defendant argues that the use of the word "would" in the two

places it appears in this quotation were error.

     As to the second use of "would," the defendant argues that

the jury should have been commanded that they "must not return a

verdict of guilty," and that "would" suggests some wiggle room.

To be sure, the jury instruction should be clear at every point

that in the absence of a finding that each element of an offense

is proved beyond a reasonable doubt, it is mandatory that the

jury verdict be one of not guilty.    Because this claimed error

was not objected to, we review the claim to determine whether
                                                                  11


any error created a substantial risk of a miscarriage of

justice.    See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

Reading the jury instructions as a whole, in which the judge

said four times that if there was a reasonable doubt, the

defendant "must be acquitted," we cannot conclude that the

judge's use of the word "would" in one portion of the

instruction created a substantial risk of a miscarriage of

justice.

     As to the first use of the word "would," the defendant

argues that the judge should have instructed that the jury

verdict "should [be] guilty."   We see no error.   Moreover, given

the defendant's argument that "would" is insufficiently

directive, the judge's instruction here was more beneficial to

the defendant than what he suggests was proper.

     4.    Wainer Caba's grand jury testimony.   The judge

determined that Wainer Caba, a witness before the grand jury and

at trial, was, at trial, feigning lack of memory.    Consequently,

consistent with Mass. G. Evid. § 801(d)(1)(A) (2014), Caba's

grand jury testimony2 was admitted substantively as inconsistent

with his claim of lack of memory.   See Commonwealth v. Sineiro,

432 Mass. 735, 745 & n.12 (2000).



     2
       In pertinent part, Caba testified at the grand jury that
he saw the defendant carrying a small brown delivery bag with
something in it.
                                                                    12


     The defendant now argues that the grand jury testimony was

coerced.3   The defendant did not object at trial to the admission

of the grand jury testimony on the ground that the witness was

coerced.    He raised coercion only in relation to the witness's

right to counsel, see infra.    Consequently, in order to prevail

on this claim, he must demonstrate both that the grand jury

testimony was indeed coerced, and that admission of the

testimony created a substantial risk of a miscarriage of

justice.    See Commonwealth v. Alphas, 430 Mass. at 13.    And,

because the issue was not raised before the judge, he made no

finding with respect to coercion.    Thus, in order to reverse on

this ground, the defendant must show that a finding that the

witness was not coerced would have been clear error.

     The record here is inadequate to support such a conclusion.

In particular, we are in no position to judge the credibility of

the witness's testimony to the extent it may have indicated

coercion.   The defendant's claim must therefore fail, at least

in the posture in which it was presented in this direct appeal.

     As part of his argument concerning the grand jury

testimony, the defendant notes that Caba was not provided

counsel at the grand jury stage of these proceedings.      The

     3
       Specifically, the defendant argues that statements Caba
made during police interviews were coerced, and that Caba felt
his grand jury testimony needed to be consistent with the
statements he had made to the police.
                                                                  13


argument that Caba's lack of counsel introduced error is

premised on a conclusion that the grand jury testimony was

coerced.   The defendant argues that the presence of counsel

might have assisted Caba at the point at which he was allegedly

coerced.   Because we cannot conclude that a factual finding of

coercion was compelled by the evidence, this argument also is

unavailing.

    The defendant also argues that had Caba been provided

counsel at trial, "he may have benefitted from the advice

counsel could offer him regarding how to explain and convey his

predicament to the jury."   However, even if in light of the

inconsistent testimony at the grand jury and at trial, the

witness's Fifth Amendment rights were at issue such that the

judge ought to have appointed counsel for him at trial, see,

e.g., Commonwealth v. Hesketh, 386 Mass. 153, 155 (1982),

something we do not decide, the defendant lacks standing to

assert the witness's right in this regard.   See Commonwealth v.

Peloquin, 30 Mass. App. Ct. 960, 961 n.1 (1991) ("The defendant

argues that had the witness been advised of his right to

counsel, he might have elected not to testify.   Aside from the

purely speculative nature of the claim, the defendant has no

standing to assert the claim, because [the witness's] right to

counsel is his alone to assert").

                                    Judgments affirmed.
