Facts: The
defendants, Walter Norris and Valentino Facey were convicted of murder in the
first degree. The charges revolved
around the shooting death of Bernard Johnson that occurred in a parking lot of
a Somerville apartment building. The
shooting was the result of an altercation over the victims gold chain. In their appeals, Facey argues that the
evidence was not sufficient to sustain a murder conviction as a joint venture,
both Facey and Norris argue that the jury instructions should have been on
defense of another; and Norris argues that he is entitled to a jury instruction
that one of the necessary elements for possession of a firearm is the lack of a
license.
Issue #1:
Was the evidence sufficient to convict Facey as guilty of murder in the first
degree as a joint venture?
Yes – In
order to prove joint venture, the commonwealth has the burden of proof to show
that Facey was (1) present at the scene of the crime, (2) with knowledge that
another intends to commit the crime or with intent to commit [the] crime, and
(3) by agreement, [was] willing and available to help the other if
necessary.” Facey was present at the
scene of the crime and even if the jury found that Facey did not know of the gun
that shot Johnson prior to the fight, there was sufficient evidence to
demonstrate that Facey knew of the gun when Norris ran down and stood nearby
Facey while pointing the gun at the victim. It could also be inferred through
his actions that he allowed Norris to take the shot at Johnson. Moreover after Norris shot Johnson six times,
Facey kicked Johnson in the face while he laid on the ground motionless.
Issue
#2: Should the judge have given the jury
instruction that defense of another is a defense to murder sua sponte and did
the defendant’s counsel deprive the defendants of effective assistance of
counsel because they did not request such an instruction at trial?
No-The
court concludes that counsel for each defendant could have decided for
strategic reasons not to request an instruction on defense of another. First, because at trial the Commonwealth
pursued a theory of felony-murder for both defendants with the felony if
Facey’s attempted armed robbery of the gold chain. The defendant's counsel argued self defense in
order to diminish close ties that Facey may have with Norris. Moreover, defense of another was inconsistent
with Norris’s testimony. Therefore, pursuing such a theory would undermine the
defendants credibility and counsel could have reasonably concluded that a
theory of self-defense was more valuable because Norris’s testimony supported
it. On the defendant’s second claim, the
judge was not required to give an instruction on defense of another sua sponte
because neither defendant placed any reliance on the theory of defense of
another at trial nor was there testimony that supported that Norris believed
Facey was in danger or wanted to protect him.
Issue
#3: Should the judge have instructed the
jury that he could be convicted of unlawful possession of a firearm only if the
Commonwealth proved beyond a reasonable doubt that he did not have a license to
carry?
No- Precedent demonstrates that under
Massachusetts law, licensure is an affirmative defense and does not constitute
an element of the crime. Commonwealth v. Powell, 459 Mass. 572,
582 (2011); Commonwealth v. Jones,
372 Mass. 403, 406 (1977). The burden of
producing evidence that Norris held a license is on him and not on the
Commonwealth.
Judgments Affirmed (CA)
