Supreme Judicial Court (August 3, 2009)
For future cases where there is evidence that more than one person may have participated in the commission of the crime, judges are to instruct on aiding and abetting, rather than joint venture liability. The jury should be instructed that the defendant is guilty if the Commonwealth has proved beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense. This case also proposes a model jury instruction in the appendix of the opinion.
The victim in this case was shot and killed while driving in Worcester. The fatal bullet was fired from another car in which the defendant was a passenger. The defendant was indicted on a charge of murder in the first degree, and at trial, the Commonwealth proceeded against him on the theory of deliberate premeditation based on both principal and joint venture liability. A special verdict slip was given to the jury with instruction to specify whether they found the defendant guilty as a principal or as a joint venture, but that they could not find him guilty on both. The jury found the defendant guilty as a joint venturer.
On appeal, the defendant argued that his motion for a required finding of not guilty should have been granted because there was insufficient evidence that he deliberately premeditated the murder as part of a joint venture. The SJC agreed and reversed the defendant's conviction. However, the SJC also held that the defendant could be retried based on principal liability and the case was remanded for a new trial.
The SJC analyzed the common-law history of joint venture liability, and concluded that the statutory aiding and abetting law, c. 274, §2, was much less confusing for jurors: "Whoever aids in the commission of a felony, or is accessory thereto before the fact by counseling, hiring or otherwise procuring such felony be committed, shall be punished in the manner provided for the punishment of the principal felon." While the case law on joint venture liability states that the accomplice commits the crime no less than the principal, the language of the current jury instruction often retains that distinction which results in special verdict slips. The problem with these special verdict slips is that a greater number of mistrials will arise from hung juries, because jurors may all agree that the defendant knowingly participated in the commission of the crime, but differ as to whether he did so as a principal or a joint venturer.
Currently, the model jury instructions encourage judges to instruct on the required elements of the charged offense, and then separately instruct on joint venture liability, identifying the three elements that the Commonwealth must prove to establish guilt as a joint venturer: 1) present at the scene of the crime; 2) with knowledge that another intends to commit the crime or with intent to commit a crime; and 3) by agreement is willing and available to help the other if necessary. It is written as if the required elements of the charged offense only apply to prove principal liability and the joint venture elements only apply to prove joint venture liability. The SJC found this to be confusing to jurors when there is a more reasonable, and far simpler alternative:
1) Instruct the jury that the defendant is guilty if the Commonwealth has proved beyond a reasonable doubt that the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense;
2) Continue to permit the trial judge to furnish the jury with a general verdict even when there is differing evidence that the defendant committed the crime as a principal or as an accomplice; and
3) On conviction, 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.
As the SJC stated, "This formulation is hardly novel; it best reflects the spirit behind the common law as now reflected in the aiding and abetting statute which declares the aider and abettor to be as culpable as the chief perpetrator of the offense. . . .We therefore now adopt the language of aiding and abetting rather than joint venture for use in [future] trials."
Note: The SJC announced an appropriate jury instruction on this issue in the appendix of the opinion.