Joint venture

[Where there is evidence of joint venture]

The Commonwealth is not required to prove that the defendant himself performed the act that caused the victim's death.[22] However, to establish that a defendant is guilty of murder [or voluntary manslaughter or involuntary manslaughter], the Commonwealth must prove two things beyond a reasonable doubt. First, the Commonwealth must prove that the defendant knowingly participated in the commission of the crime [identify the crime if needed to avoid confusion]. Second, the Commonwealth must prove that he did so with the intent required to commit the crime.[23] 

A defendant may knowingly participate in a crime in several ways.  He may personally commit the acts that constitute the crime.  He may aid or assist another in those acts.[24] He may ask or encourage another person to commit the crime, or help to plan the commission of the crime.[25]  Alternatively, the defendant may knowingly participate by agreeing to stand by at or near the scene of the crime to act as a lookout, or by providing aid or assistance in committing the crime, or in escaping, if such help becomes necessary.[26] An agreement to help if needed does not need to be made through a formal or explicit written or oral advance plan or agreement; it is enough if the defendant and at least one other person consciously acted together before or during the crime with the intent of making the crime succeed.[27]

     The Commonwealth must also prove beyond a reasonable doubt that, at the time the defendant knowingly participated in the commission of the crime [identify the crime if needed to avoid confusion], he had the intent required for that crime.[28]  You are permitted, but not required, to infer the defendant's mental state or intent from his knowledge of the circumstances or any subsequent participation in the crime.[29] The inferences you draw must be reasonable, and you may rely on your experience and common sense in determining the defendant's knowledge and intent.[30]

Mere knowledge that a crime is to be committed is not sufficient to convict the defendant.[31] The Commonwealth must also prove more than mere association with the perpetrator of the crime, either before or after its commission.[32] It must also prove more than a failure to take appropriate steps to prevent the commission of the crime.[33]

Mere presence at the scene of the crime is not enough to find a defendant guilty.  Presence alone does not establish a defendant's knowing participation in the crime, even if a person knew about the intended crime in advance and took no steps to prevent it.  To find a defendant guilty, there must be proof that the defendant intentionally participated in some fashion in committing that particular crime and that he had or shared the intent required to commit the crime.  It is not enough to show that the defendant simply was present when the crime was committed or that he knew about it in advance.[34]

[Where felony-murder is charged]

Where a defendant is charged with felony-murder, the Commonwealth must prove beyond a reasonable doubt that the defendant knowingly participated in the commission of the underlying crime [identify the life felony to avoid confusion], that he did so with the intent required to commit the underlying crime, and that he had or shared the intent to kill, the intent to cause grievous bodily harm, or the intent to do an act which, in the circumstances known to him, a reasonable person would have known created a plain and strong likelihood that death would result.[35] 

[Where felony-murder is charged and an underlying offense has as one of its elements the use or possession of a weapon]  

Where an element of an offense is that a person who committed the crime possessed, carried, or used a weapon, the Commonwealth must prove beyond a reasonable doubt either that the defendant himself possessed a weapon, or that the defendant knew that a person with whom he participated in the commission of the crime was armed with a weapon.[36] However, mere knowledge that a participant in the crime was armed is not sufficient to hold the defendant liable for the acts of that participant. The Commonwealth must also prove that the defendant knowingly participated in the commission of the crime, with the intent required to commit the crime.[37]

[Note to Judge:  Where the defendant claims withdrawal from knowing participation in the commission of the crime and there is evidence supporting this claim, the judge should give the following instruction.38]

The defendant is not guilty of knowingly participating in the commission of the crime if there is a reasonable doubt whether he withdrew from the planned crime in an effective and timely manner.[39] A defendant withdraws from a planned crime by clearly communicating his intent not to be involved in the crime and ending his involvement.[40] A withdrawal is effective and timely only if: (1) the defendant withdraws from the planned crime before the commission of the crime has begun; (2) the defendant, by words or conduct, clearly communicates his withdrawal to the other participant[s] in the planned crime; and (3) the communication of the withdrawal is done early enough that the other participant[s] has [have] a reasonable opportunity to abandon the crime.[41] A withdrawal is not timely and effective if it comes so late that the crime cannot reasonably be stopped.[42] 

[Note to Judge:  Where there is evidence of multiple crimes and that the defendant withdrew from knowing participation in the commission of a subsequent crime after knowingly participating in one or more earlier crimes, the judge should give the following instruction after the withdrawal instruction.[43]]

The defendant is charged with having committed a number of crimes with other participants. For each such crime, the Commonwealth must prove that the defendant was a knowing participant during that crime and did not withdraw in a timely and effective manner.  For example, a defendant may knowingly participate in one crime, and thus may be guilty of that offense, but then may withdraw from any later planned crime, and, if the withdrawal is timely and effective, the defendant is not guilty of the later offense.[44]

Additional Resources

Footnotes

[22] Commonwealth v. Deane, 458 Mass. 43, 50-51 (2010) ("Commonwealth is not required to prove exactly how a joint venturer participated in the murders . . . or which of the two did the actual killing").  See Commonwealth v. Zanetti, 454 Mass. 449, 467, 470-471 (2009) (promulgating model jury instruction).  Cf. Commonwealth v. Echavarria, 428 Mass. 593, 598 & n.3 (1998) (giving "exemplary" example, but one that uses obsolete joint venture language).

[23] Commonwealth v. Deane, 458 Mass. at 50-51; Commonwealth v. Zanetti, 454 Mass. at 467-468, 470-471 (promulgating model jury instruction).  See Commonwealth v. Marrero, 459 Mass. 235, 247 (2011); Commonwealth v. Housen, 458 Mass. 702, 706-707 (2010); G. L. c. 274, § 2.

[24] Commonwealth v. Zanetti, 454 Mass. at 462-464.  Commonwealth v. Santos, 440 Mass. 281, 290 (2003); Commonwealth v. Soares, 377 Mass. 461, 470, cert. denied, 444 U.S. 881 (1979).

[25] Commonwealth v. Zanetti, 454 Mass. at 462-463; Commonwealth v. Soares, 377 Mass. at 470.

[26] Commonwealth v. Mavredakis, 430 Mass. 848, 863-864 (2000), quoting Commonwealth v. Colon–Cruz, 408 Mass. 533, 545 (1990) (escape); Commonwealth v. Miranda, 441 Mass. 783, 791-792 (2004), quoting Commonwealth v. James, 30 Mass. App. Ct. 490, 499 n.10 (1991) (lookout).

[27] Commonwealth v. Zanetti, 454 Mass. at 466-467; Commonwealth v. Deane, 458 Mass. at 50-51; Commonwealth v. Echavarria, 428 Mass. at 598 n.3.

[28] A joint venturer need not be proved to have committed the murder with extreme atrocity or cruelty, as long as one joint venturer committed the killing with extreme atrocity or cruelty.  See Commonwealth v. Chaleumphong, 434 Mass. 70, 79-80 (2001), quoting Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983) (finding no error in instruction that "[i]t is not necessary for the Commonwealth to prove that [the defendants] had a conscious awareness that the acts were being committed with extreme atrocity or cruelty or that either of them desired the acts to be carried out in that manner . . . .  We have consistently held that 'proof of malice aforethought is the only requisite mental intent for a conviction of murder in the first degree based on murder committed with extreme atrocity or cruelty'").

[29] Commonwealth v. Carnes, 457 Mass. 812, 823 (2010), citing Commonwealth v. Soares, 377 Mass. at 470.

[30] Commonwealth v. Carnes, 457 Mass. at 837 ("reasonable"); Commonwealth v. Zanetti, 454 Mass. at 470.

[31] Commonwealth v. Soares, 377 Mass. at 471; Commonwealth v. Perry, 357 Mass. 149, 151 (1970).

[32] Commonwealth v. Echavarria, 428 Mass. at 598 n.3.

[33] Commonwealth v. Zanetti, 454 Mass. at 470-471 (appendix providing model jury instruction); Commonwealth v. Maynard, 436 Mass. 558, 564-565 (2002), quoting Commonwealth v. Ortiz, 424 Mass. 853, 859 (1997).

[34] Commonwealth v. Deane, 458 Mass. at 58, citing Commonwealth v. Ortiz, 424 Mass. at 859; Commonwealth v. Zanetti, 454 Mass. at 470-471 (appendix providing model jury instruction).

[35] Commonwealth v. Brown, 477 Mass 805, 832 (2017).

[36] Commonwealth v. Britt, 465 Mass. 87, 100 (2013) ("The Commonwealth should only bear the burden of proving that a joint venturer had knowledge that a member of the joint venture had a weapon where the conviction on a joint venture theory is for a crime that has use or possession of a weapon as an element").  Therefore, "the requirement of knowledge of a weapon in the context of murder in the first degree on a joint venture theory applies only where the conviction is for felony-murder and the underlying felony has as one of its elements the use or possession of a weapon."  Id.  Neither possession nor use of a firearm is an element of murder in the first degree based on deliberate premeditation or extreme atrocity or cruelty.  See id.

[37] Commonwealth v. Akara, 465 Mass. 245, 254 (2013); Commonwealth v. Zanetti, 454 Mass. at 467-468.

[38] Commonwealth v. Rivera, 464 Mass. 56, 74 (2013), quoting Commonwealth v. Miranda, 458 Mass. 100, 118 (2010) (defendant entitled to withdrawal instruction only where there is evidence of "an appreciable interval between the alleged termination and [the commission of the crime], a detachment from the enterprise before the [crime] has become so probable that it cannot reasonably be stayed, and such notice or definite act of detachment that other principals in the attempted crime have opportunity also to abandon it").

[39] Commonwealth v. Fickett, 403 Mass. 194, 201 n.7 (1988).

[40] Commonwealth v. Miranda, 458 Mass. at 118; Commonwealth v. Fickett, 403 Mass. at 201

[41] See Commonwealth v. Rivera, 464 Mass. at 74, quoting Commonwealth v. Miranda, 458 Mass. at 118; Commonwealth v. Pucillo, 427 Mass. 108, 116 (1998) (no error where judge instructed jury that "the withdrawal and abandonment must be 'in a timely and effective manner,'" that "if [the] withdrawal comes so late that the crime cannot be stopped, then it is too late and it is not effective," and "that 'a withdrawal is effective only if it is communicated to the other persons in the joint venture'").

[42] Commonwealth v. Pucillo, 427 Mass. at 116.

[43] Commonwealth v. Hogan, 426 Mass. 424, 434 (1998).

[44] Id.

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Date published: April 25, 2018

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