Commonwealth v. Brown

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SJC-11570

COMMONWEALTH vs. ENFRID BROWN, JR.

(and a companion case1).2

Suffolk. October 9, 2014. - February 11, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &

Hines, JJ.

Homicide. Practice, Criminal, Double jeopardy, Capital case,

Verdict. Constitutional Law, Double jeopardy.

Indictments found and returned in the Superior Court on May

16, 1973.

Following review by this court, 367 Mass. 24 (1975) and 378

Mass. 165 (1979), motions for a new trial, filed on September

23, 2009, and July 26, 2012, were considered by Frank M.

Gaziano, J.

A request for leave to appeal was allowed by Gants, J., in

the Supreme Judicial Court for the county of Suffolk.

1

Commonwealth vs. William J. Johnson, Jr.

2

According to the defendants' brief, Enfrid Brown's correct

first name is Efrid and William Johnson's current name is

Abdullah K. Sabree. We follow the custom of the court and refer

to the defendants by the names used in their indictments. See

Commonwealth v. Anderson, 425 Mass. 685, 685 n.1 (1997).

2

Ryan M. Schiff, Committee for Public Counsel Services, for

William J. Johnson.

Matthew Sears, Assistant District Attorney, for the

Commonwealth.

Robert L. Sheketoff, for Enfrid Brown, Jr., was present but

did not argue.

HINES, J. The defendants, Enfrid Brown, Jr., and William

J. Johnson, were indicted on charges of murder and armed entry

with the intent to commit a felony in connection with the 1973

death of the victim, Hakim A. Jamal.3 The defendants were

convicted by a jury of murder in the first degree at their first

trial.4 We reversed the first convictions on grounds not

pertinent to this appeal and remanded for a new trial.

Commonwealth v. Brown, 367 Mass. 24, 32 (1975) (Brown I). They

were retried and again convicted. We affirmed the second

convictions. Commonwealth v. Brown, 378 Mass. 165, 166 (1979)

(Brown II).

After various proceedings, which we detail below, the

defendants filed a third5 motion for a new trial in July, 2012,

arguing that the jury's initial report of not guilty verdicts in

3

The victim also was known as Allen Donaldson.

4

The defendants were also convicted by a jury of armed

entry with the intent to commit a felony at their first trial;

they were not retried on the armed entry indictments.

5

This motion is referred to as the "supplemental" motion by

the defendants, but the single justice adopted the reference

used by the Commonwealth, and we too shall refer to this as the

"third" motion.

3

the first trial was in fact an acquittal of murder in the first

degree on the theory of deliberate premeditation and the retrial

on that same theory in the second trial violated their double

jeopardy rights. In a thoughtful memorandum of decision, a

Superior Court judge denied the motion. The defendants

petitioned a single justice of this court, pursuant to the

"gatekeeper" provision of G. L. c. 278, § 33E, for leave to

appeal. The single justice allowed the appeal to proceed on the

question whether the jury's initial verdict has the double

jeopardy consequence, under Federal constitutional law and the

statutory and common law of Massachusetts, of barring retrial on

a theory of premeditated murder. For the reasons explained

below, we conclude that the defendants suffered no violation of

their double jeopardy rights and affirm the denial of the motion

for a new trial.

1. Background. We set forth the facts the jury could have

found, as detailed in Brown II:

"On May 1, 1973, Hakim Jamal occupied a third-floor

apartment with Hane Jamal, who described herself as Hakim's

wife in a "spiritual" but not a legal sense, and with Crab

Jamal, Kidogo Jamal, Linda Jacobs, and Linda's son Anthony

Jacobs. On the morning of May 1, . . . Kidogo had an

argument with one Louella Burns (also known as Sister

Cissy).

"Burns informed members of an organization called 'De

Mau Mau' of her argument with Kidogo. Included among the

members of the organization were the . . . defendants [and

4

John Clinkscales],[6] as well as [Phillips] Key and [Isaac]

Mitchell. These five individuals procured various firearms

including handguns, carbines, and a rifle and drove to the

Jamal apartment about 11 P.M.[7] Leaving their car locked

but with the engine running, all five ascended the stairs

carrying the firearms. Key knocked on the door of the

Jamal apartment and Kidogo answered. A German shepherd dog

left the apartment while the door was open. Kidogo

attempted to close the front door, ran into the living

room, and blocked the living room door closed with his

body. Hakim, Hane, and Crab were also present in the

living room. At the same moment, Anthony was in a bedroom

at the other end of an interior hallway. Linda was in the

kitchen, which was located between the bedroom and the

living room.

"Key, Mitchell, [Clinkscales,] and the . . .

defendants entered the apartment. Johnson turned down the

hall toward the bedroom. He kicked open the bedroom door

and pointed a rifle at Anthony. Linda and Anthony, both of

whom knew Johnson well, asked him not to hurt Anthony, and

Johnson backed away. Key forced open the living room door,

pinning Kidogo between the open door and a wall. Hakim

attempted to raise a shotgun lying next to the chair in

which he was sitting. Key quickly lay down on the floor.

Mitchell fired several shots at Hakim, killing him. At

some point during these events, Brown and Clinkscales were

in the foyer area of the apartment where they were

observed, respectively, by Linda and Anthony." (Footnotes

omitted.)

Brown II, 378 Mass. at 166-168.

To provide context for the defendant's double jeopardy

claim, we describe additional aspects of the defendants' trials

and the relevant procedural history.

6

John Clinkscales was tried in 1973 and 1975 together with

the defendants appealing here and was convicted of the same

charges as the defendants, but he has since died and is not a

party to this appeal.

7

The theory presented by the Commonwealth was that the

defendants and other participants went to the apartment to pick

up Kidogo Jamal and implement "black justice."

5

a. First trial. After a ten-day trial,8 the jury reported

that they had reached verdicts and the judge summoned them to

the court room to announce the verdicts. In response to the

clerk's inquiry, the jury foreman initially announced not guilty

verdicts as to each of the murder indictments and guilty

verdicts as to the armed entry indictments. Within minutes,

however, the jury reentered the court room and amended the

previously announced not guilty verdicts to find the defendants

guilty of murder in the first degree. The jury confirmed its

initial guilty verdicts as to the indictments for armed entry of

a dwelling with intent to murder. The circumstances of the

change in the jury's verdicts from not guilty to guilty of

murder in the first degree, although mired in confusion and

ambiguity, form the factual core of the defendants' double

jeopardy claim. This court in Brown I described the events

surrounding the verdicts as follows:

"On the afternoon of the second day of their deliberations,

the jury returned verdicts of not guilty on the . . .

murder indictments and guilty on the . . . indictments for

armed entry. The verdicts were affirmed by the jury and

recorded, and the jury were discharged and allowed to

retire. Four minutes later the jury returned to the court

room and were permitted to correct the verdicts. The

foreman said, 'The way the [c]lerk read the charges to us,

or the indictments, was not the same as the form that we

8

This murder trial commenced on July 20, 1973,

approximately two months after the return of the indictment on

May 16, 1973, and nearly three months after the murder on May 1,

1973.

6

were using in the case. . . . We had written down 'not

guilty' of the intent of entering to murder.[9] But we did

find him guilty of murder in the first degree on the charge

of a felonious murder.' Corrected verdicts of guilty of

murder in the first degree and guilty of armed entry were

then returned, affirmed and recorded, and the jury were

again permitted to retire."

Brown I, 367 Mass. at 27.

We recount additional details of the reporting of the

jury's verdicts as gleaned from the record available to us.10

After instructing the jury on the law, the judge suggested a

procedure for recording the verdicts in the jury room. He

provided copies of the indictments and directed the jury foreman

to indicate the verdicts on those copies "so that [the foreman

9

The trial judge had asked the jury to write their verdicts

on copies of the indictments, and the clerk requested the copies

from the foreman of the jury after the verdicts were read, but

the foreman indicated to the clerk that he did not want to turn

them in. After reading the corrected verdicts, the foreman

handed the clerk the marked copies. The copies of the murder

indictments stated "Guilty" and there were erasure marks where

the foreman had erased "Not"; the copies of the armed entry

indictments stated "Guilty, First Degree."

10

The transcript from the first trial is missing even-

numbered pages in the portion of the trial that includes the

trial judge's instructions to the jury, the jury verdicts, and

the foreman's statements made in connection with the corrected

verdicts. In place of the missing pages, both parties cite to

our decision after review of the defendants' direct appeal

pursuant to G. L. c. 278, § 33E, Commonwealth v. Brown, 367

Mass. 24 (1975) (Brown I), which contains factual information

that is missing from the transcript. To the extent the

defendants' claim rests on the missing portions of the

transcripts, that claim is waived by the defendants' failure to

follow the procedure under Mass. R. A. P. 8 (c), as amended, 378

Mass. 932 (1979), for reconstructing the record. See

Commonwealth v. Hunt, 22 Mass. App. Ct. 932, 933 (1986).

7

would] not have any confusion in reporting." In his explanation

of this process, the judge began first with the armed entry

indictments and ended with the murder indictments, adding

information about how the foreman was to report the verdicts in

the event of guilty findings on that offense. However, in

calling for the verdicts, the clerk did not follow the order of

the judge's instructions for reporting of the verdicts.

Instead, the clerk inquired first regarding the verdict on the

murder indictments. The foreman replied, "Not guilty." As the

jury left the court room and before they were released, the

foreman alerted the court officer, stating, "There is something

wrong in the verdict." The court officer advised the foreman to

say no more and reported this exchange to the chief court

officer. The chief court officer immediately reported the

matter to the judge who was still in the court room in the

presence of counsel and the defendants. The defendants had not

yet been discharged on the indictments.

The judge summoned the jury back to the court room for

further inquiries into the matter of the verdicts. When the

jury returned to the court room, the foreman announced guilty

verdicts on each of the indictments. Apparently by way of

explanation, the foreman stated, "We signed these affidavits in

the fashion that we voted. The way the [c]lerk read the charges

to us, or the indictments, was not the same as the form that we

8

were using in this case." The foreman continued, "We had

written down 'not guilty' of the intent of entering to murder.

But we did find him guilty of murder in the first degree on the

charge of a felonious murder." Brown I, 367 Mass. at 27.

Additional details of the trial judge's charge to the jury

also provide context for the foreman's explanation regarding the

changed verdicts. In reaching their verdicts on the murder

indictments, the jury were required to parse the instructions on

two different felonies: the kidnapping of Kidogo as the

predicate felony for felony-murder; and the separate felony of

armed entry with the intent to murder Hakim. As to the latter,

the jury were instructed that if there was a reasonable doubt

"that [the defendants] went [to the apartment] to murder Hakim,

these defendants must be found not guilty" on this second

indictment.11 Brown I, supra at 29. The foreman's statement,

"We had written down 'not guilty' of the intent of entering to

murder," was an apparent reference to this instruction on the

armed entry charge.

After the jury were permitted to correct the verdicts, the

defendants moved for a mistrial, arguing that the jury had no

power to change its verdicts after being discharged. The

defendants claimed that the jury were free to mingle and talk

11

The court observed that this instruction may well have

been "too favorable" to the defendants. Brown I, supra at 29.

9

with alternate jurors and that the changed verdicts indicate

prejudicial confusion. The trial judge conducted an evidentiary

hearing and denied the defendants' motions, concluding that the

jury had the power to correct the verdicts because they were

"still within the control of the [c]ourt and in the custody of

the court officers" and had not mingled or discussed the case

with others prior to correcting their verdict. Adding his own

gloss to what had occurred, the trial judge stated, "It is clear

beyond all doubt that it was the decision of the jury that the

defendants were guilty of murder in the first degree, such

murder having been committed during the commission of a felony

punishable by life imprisonment." The judge made no comment

concerning deliberately premeditated murder.

The defendants appealed their convictions, raising a number

of issues, including the trial judge's denial of the motions for

a mistrial. We reversed the convictions and remanded for a new

trial based on the trial judge's use of an impermissibly

coercive version of the charge modeled in Commonwealth v. Tuey,

8 Cush. 1, 2 (1851). Brown I, 367 Mass. at 32. We reviewed the

circumstances of the corrected verdicts and noted that the

"present record shows no impropriety in the correction of the

verdicts on the murder indictments." Id. at 29. We questioned,

however, whether the armed entry convictions could stand in

light of the foreman's explanation, "We had written down 'not

10

guilty' of the intent of entering to murder. But we did find

him guilty of murder in the first degree on the charge of

felonious murder." Because we reversed based on the Tuey

charge, we did not review the point further and noted that "[i]t

is sufficient for present purposes that the erroneous 'not

guilty' verdicts on the murder indictments do not preclude a new

trial." Id.

b. Second trial. The defendants were retried only on the

murder indictments, and both were convicted of murder in the

first degree by a jury on July 31, 1975. The trial judge had

instructed the jury to consider both "deliberately premeditated"

murder and "felony murder" as theories supporting the

indictments. The jury returned general verdicts of guilty of

murder in the first degree without specifying the theory of

culpability, as was the practice at the time.12 See Commonwealth

12

At the time of the defendants' trials, the jury were

allowed to return a guilty verdict on a murder indictment even

if fewer than twelve jurors agreed on a particular theory of

murder. Commonwealth v. Berry, 420 Mass. 95, 111 (1995), citing

Commonwealth v. Devlin, 335 Mass. 555, 567-568 (1957). In 1995,

this court recognized that the right to a unanimous jury should

extend to the theory of culpability where the offense charged

contains more than one theory. Berry, supra at 112 & n.17.

Accordingly, juries in murder trials now must unanimously agree

on the theory underlying a guilty verdict and mark such

determinations on a special verdict slip. See Commonwealth v.

Carlino, 449 Mass. 71, 77-78 (2007); Berry, supra at 112. This

rule, however, applied only prospectively, and at the time of

the defendants' trials, there was no expectation that the jury

should unanimously agree on theories underlying a verdict.

Berry, supra at 111-112.

11

v. Devlin, 335 Mass. 555, 567-568 (1957), S.C., 361 Mass. 287

(1972) and 363 Mass. 171 (1973).

c. Posttrial motions. After the second trial, the

defendants filed a first motion for a new trial on the grounds

of newly discovered evidence and in the interest of justice,

based on information obtained during the trial of Phillips Key

and Isaac Mitchell for the same murder. We affirmed the

convictions following the second trial and the denial of the

first motion for a new trial. Brown II, 378 Mass. at 166.

In September, 2009, the defendants filed a second motion

for a new trial, asserting, among other claims, that their

second trial violated their double jeopardy rights because a

jury had acquitted them of murder in the first degree in their

first trial.13 The judge denied this motion, and the defendants

petitioned a single justice of this court, pursuant to the

gatekeeper provision of G. L. c. 278, § 33E, for leave to appeal

the denial. The Commonwealth assented to the defendants'

request to stay the gatekeeper proceedings pending the

defendants' filing of their third motion for new trial. In the

13

The defendants' second motion for a new trial made

essentially the same argument asserted in their petition for

habeas corpus relief. The judge dismissed the petition,

concluding that "the erroneous verdict of not guilty in the

first trial was not a final determination of the proceedings

against the petitioners and . . . , therefore, their second

trial did not violate their right not to be twice placed in

jeopardy." Brown v. Gunter, 428 F. Supp. 889, 891 (D. Mass.),

aff'd, 562 F.2d 122 (1st Cir. 1977).

12

third new trial motion, the defendants revised their double

jeopardy argument and for the first time argued that the jury

had actually acquitted them of murder in the first degree on a

theory of deliberate premeditation in their first trial and,

therefore, double jeopardy protections precluded retrial on that

same theory. The same judge who had denied the second motion

for a new trial (motion judge) also rejected this claim, ruling

that the defendants were not acquitted of murder in the first

degree murder on a theory of deliberate premeditation and,

therefore, the Commonwealth was not barred from retrying the

defendants on that theory.

The defendants then petitioned the single justice for leave

to appeal from this ruling. The single justice allowed the

defendants' petition to appeal the double jeopardy claim made in

their third motion for a new trial.14

2. Discussion. a. Standard of review. In reviewing the

denial or grant of a new trial motion, we examine the motion

14

The single justice determined that the defendants' claim

was "new" in that they had not previously focused their double

jeopardy argument on the deliberate premeditation theory,

reasoning that "this variant of the defendants' double jeopardy

argument was not raised at trial or on direct review, was not

argued or addressed on appeal, and reasonably could not have

been addressed because the applicable law was not sufficiently

developed at the time of the direct appeal." Accordingly,

review is limited to whether the defendants were acquitted at

the first trial of murder in the first degree on a theory of

deliberate premeditation. We do not address the Commonwealth's

waiver argument because we affirm the denial of the defendants'

third motion for a new trial on other grounds.

13

judge's conclusion only to determine whether there has been an

abuse of discretion or significant error of law. Commonwealth

v. Wright, 469 Mass. 447, 461 (2014). If the motion judge did

not preside at the trial, as is the case here, "we . . . 'regard

ourselves in as good a position as the motion judge to assess

the trial record.'" Id., quoting Commonwealth v. Weichell, 446

Mass. 785, 799 (2006).

b. Analysis. "[T]he [d]ouble [j]eopardy [c]lause

precludes the [g]overnment from relitigating any issue that was

necessarily decided by a jury's acquittal in a prior trial."

Yeager v. United States, 557 U.S. 110, 119 (2009), citing Ashe

v. Swenson, 397 U.S. 436 (1970). "[T]he prohibition against

double jeopardy, which flows from the Fifth Amendment to the

United States Constitution, as well as the statutory and common

law of Massachusetts, provides that 'a person cannot twice be

put in jeopardy for the same offence.'" Marshall v.

Commonwealth, 463 Mass. 529, 534 (2012), quoting Commonwealth v.

Burke, 342 Mass. 144, 145 (1961). See G. L. c. 263, § 7.15 The

double jeopardy principle "protects against three specific evils

-- 'a second prosecution for the same offense after acquittal; a

second prosecution for the same offense after conviction; and

15

General Laws c. 263, § 7, provides in relevant part: "A

person shall not be held to answer on a second indictment or

complaint for a crime of which he has been acquitted upon the

facts and merits . . . ."

14

multiple punishments for the same offense.'" Marshall, supra,

quoting Mahoney v. Commonwealth, 415 Mass. 278, 283 (1993). The

defendants' double jeopardy claim derives from the prohibition

of a second trial after an acquittal.

The defendants' double jeopardy claim depends not on what

the jury explicitly stated in the report of the verdict but on

the defendants' interpretation of what the jury must have

intended. They argue that despite the confusion surrounding the

announcement of the verdicts in the first trial, the trial judge

correctly interpreted the jury foreman's statement that the jury

reached guilty verdicts "on the charge of a felonious murder"

when he inferred that the jury intended to acquit the defendants

of deliberately premeditated murder. Consequently, they claim

that the motion judge erred in concluding that the jury did not

specifically reject the theory of deliberate premeditation and

that the jury's pronouncement, therefore, was not an acquittal

barring a retrial. We disagree. No acquittal occurred where

the jury's pronouncement of its verdicts did not unequivocally

reject the defendant's guilt on the theory of deliberate

premeditation.

An "acquittal requires a verdict on 'the facts and

merits.'" Commonwealth v. Gonzalez, 437 Mass. 276, 282 (2002),

cert. denied, 538 U.S. 962 (2003), quoting G. L. c. 263, § 7.

This disposition properly may be claimed only when the fact

15

finder reaches "a resolution, correct or not, of some or all of

the factual elements of the offense charged." Commonwealth v.

Babb, 389 Mass. 275, 281 (1983), quoting United States v. Martin

Linen Supply Co., 430 U.S. 564, 571 (1977). Thus, where a

verdict does not specifically resolve all the elements of the

offense charged, it is defective and cannot operate as either an

acquittal or a conviction. Commonwealth v. Call, 21 Pick. 509,

514-515 (1839).

The defendants do not claim that the jury unequivocally

found that the Commonwealth failed to meet its burden of proof

on the theory of deliberate premeditation. Rather, the

defendants urge us to conclude that the jury intended to acquit

them of murder on a theory of deliberate premeditation. This

alleged intent is to be deduced from an interpretation of

postverdict statements of the trial judge and jury foreman

immediately before correcting the verdicts. We are invited to

interpret the meaning of the foreman's statements and defer to

statements made by the trial judge. We decline to do so.

The foreman's statements were not sufficiently clear and

unequivocal to show that the jury actually reached a resolution

of the "factual elements" of deliberate premeditation. Babb,

389 Mass. at 281. The foreman's statement, "We had written down

'not guilty' of the intent of entering to murder. But we did

find him guilty of murder in the first degree on the charge of a

16

felonious murder." Brown I, 367 Mass. at 27, is silent as to

the jury's verdict on the theory of deliberate premeditation.

Because an acquittal may not be based on such silence, we accord

no legal significance to the jury not expressly declaring their

intent on deliberately premeditated murder. See Commonwealth v.

Carlino, 449 Mass. 71, 80 (2007) (absence of indication of any

decision on third theory of culpability not acquittal on that

theory even though jury indicated culpability on first two

theories). Thus, we may not definitively conclude that the jury

intended to acquit the defendants of deliberately premeditated

murder.

Because of the ambiguity in the foreman's statements, we do

not and cannot know what the jury intended even if it were

possible, in the absence of a clear expression, to effectuate

that intent. See Carlino, 449 Mass. at 78 n.18 ("The jury might

have intended an acquittal . . . ; they might have been unable

to reach a unanimous verdict; or they might not have deliberated

on that theory at all"). "[T]he interests of justice are not

served by entry of an acquittal by accident or supposition."

Id. at 80.

The trial judge's instructions to the jury also support the

inference that the jury did not intend to acquit the defendants

of murder on a theory of deliberate premeditation. As

instructed by the judge, the only charge that required an

17

"intent of entering to murder" was armed entry with the intent

to commit a felony. The jury could find the defendants guilty

of murder on a theory of deliberate premeditation even if the

defendants did not have the intent to murder upon entry but

developed that intent while inside the apartment. Accordingly,

the foreman's explanation that the jury intended to vote not

guilty of "the intent of entering to murder" is consistent with

this court's interpretation in Brown I that the jury may have

intended to acquit the defendants of the armed entry charges

only.16 Brown I, 367 Mass. at 29 ("there is a serious question

whether any of the verdicts on the armed entry indictments can

stand").

Although the defendants suggest that we adopt the trial

judge's explanation of the jury's intention, this suggestion

also is unavailing. Based on the record, the trial judge could

not reasonably have concluded that the jury unequivocally and

unanimously intended to return a guilty verdict only on the

theory of felony-murder without impermissible speculation into

16

The foreman's markings on the verdict slips further

support this theory. After being instructed that the possible

verdicts for armed entry were not guilty or guilty and the

possible verdicts for murder were not guilty, guilty of first

degree murder, or guilty of second degree murder, the foreman

had marked, "Guilty, First Degree," on the armed entry

indictments and marked, "Not Guilty" -- later erasing the "Not"

-- on the murder indictments.

18

jury deliberations.17 See Yeager, 557 U.S. at 122; Carlino, 449

Mass. at 80. The foreman did not testify at the posttrial

hearing on the motions for mistrial, nor did any other jurors.18

In these circumstances, where the trial judge's explanation

contradicts the foreman's statements, we accord it no deference.

We do not and cannot know what the jury intended. "The jury

might have intended an acquittal . . . ; they might have been

unable to reach a unanimous verdict; or they might not have

deliberated on that theory at all." See Carlino, supra at 78

n.18.

3. Conclusion. Because the first trial produced no

"verdict on 'the facts and merits'" of the charge of murder in

the first degree on a theory of deliberate premeditation, the

motion judge did not err in concluding that there was no

acquittal and therefore no error in prosecuting the defendants

on that same theory in the second trial. Gonzalez, 437 Mass. at

282, quoting G. L. c. 263, § 7.

Order denying motion for a

17

The defendants also ask us to adopt the prosecutor's

statement at the posttrial hearing regarding the jury's intent,

which is similarly only speculation and not binding on our

analysis.

18

The issue before the trial judge was whether the jury had

the power to correct their verdict in light of the assertion

that they were free to mingle with alternate jurors and other

persons before making such correction. The issue of what the

jury intended when they changed their verdict was not in

dispute.

19

new trial affirmed.