# Commonwealth v. Zanetti > Massachusetts Supreme Judicial Court · August 3, 2009 · 454 Mass. 449 URL: https://www.frixlaw.com/law-library/cases/6454139 ## Case - **Full name:** Commonwealth v. Timothy L. Zanetti - **Court:** Massachusetts Supreme Judicial Court - **Decided:** August 3, 2009 - **Citations:** 454 Mass. 449; 910 N.E.2d 869; 2009 Mass. LEXIS 427 - **Precedential status:** Published - **Opinion:** Dissent by Cowin - **Judges:** Cowin, Gants - **Cited by:** 164 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled — as noted by a later court. - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6454139 ## How later opinions describe it (automated extraction) - finding no need for specific unanimity in joint venture cases as to liability as a principal or a joint venturer, and noting that “[t]he inevitable risk posed by special verdict slips is a greater number of mistrials arising from hung juries, because jurors may all agree that … - holding that, to prove joint venture liability, the Commonwealth must prove “that the defendant knowingly participated in the commission of the crime charged, alone or with others, with the intent required for that offense” - holding that conviction as accomplice does not imply acquittal or bar retrial as principal ## Opinion text Cowin, J. (dissenting). The concept of criminal liability based on joint venture is a difficult one, and the court’s opinion thoughtfully explores some of the problems that have arisen in applying that concept. But rather than adopting available solutions consistent with the nature of joint venture criminal liability, the court treats the problems essentially by defining them out of existence, conflating two different offenses into one, and abandoning meaningful judicial review of questions regarding sufficiency of evidence. While this approach may make life easier for trial and appellate judges, it does so at the expense of due process for affected defendants. Accordingly, I respectfully dissent. The court labels our traditional distinction between a principal and an accomplice (i.e., a joint venturer) a “false distinction,” and relies on Commonwealth v. Santos, 440 Mass. 281, 290 (2003), for the proposition that principal liability is not a separate “theory” distinct from joint venture liability. Ante at 464. Ignoring the fact that this distinction has existed in the common law for centuries, and is reflected not only in our statutes, see G. L. c. 274, §§ 2 and 3, but also in those of many other jurisdictions, the court erases fundamental differences between the criminal offender as principal and the criminal offender as joint venturer. The court’s view that crimes committed by a principal and those committed by a joint venturer can be tried and adjudicated as if they were the same thing appears to arise, at least in part, from the joint venture statute itself. That statute provides: “Whoever aids in the commission of a felony, or is accessory thereto before the fact by counselling, hiring or otherwise procuring such felony to be committed, shall be punished in the manner provided for the punishment of the principal felon.” G. L. c. 274, § 2. The court concludes that, because the statute “declares the aider and abettor to be as culpable as the chief perpetrator of the offense,” ante at 467, any distinction between them is essentially meaningless, and potentially a source of confusion in instructing a jury or reviewing a record to determine whether a conviction is supported by sufficient evidence. The statute in question, of course, does not say any of this. *472 Rather, it retains the traditional distinction between principal and accessory criminal liability by using precisely those terms. Of greater importance, the statute does not attempt to define or redefine offenses at all. It does nothing more than establish a sentencing policy. The court expands the statute by concluding that, if the sentences for principal and joint venture liability are the same, then those crimes must be the same, a judge-created inference unsupported by the statutory language. In fact, the offenses are not the same at all. One charged with a crime as a principal must have performed the act or acts that constitute the crime, e.g., pulled the trigger, sold the contraband, taken the money, or entered the building. He may or may not have had assistance; if so, criminal proceedings may be instituted against others. But his conviction as a principal does not depend on any association with, or assistance from, any other person. By contrast, joint venture liability is based on a concept of association in a criminal enterprise. It requires the participation of at least two people. Furthermore, the association must have two characteristics, each of which must be proved by the Commonwealth beyond a reasonable doubt. Unlike a conspiracy, there need be no agreement as such between the participants, 1 but they must each satisfy a requirement regarding their respective states of mind: specifically, each must possess the intent necessary for the criminal enterprise to be achieved. In addition, the joint venturer must act to some extent in support of the criminal effort. This can be satisfied by nothing more than willingness and ability to furnish assistance to the principal if necessary. See Commonwealth v. Ortiz, 424 Mass. 853, 856 (1997). We have often recognized that criminal liability as a principal and criminal liability as an aider or abettor (joint venturer) are conceptually different. See Commonwealth v. Berry, 431 Mass. 326, 332-334 (2000); Commonwealth v. Green, 420 Mass. 771, 779-781 (1995); Commonwealth v. Chipman, 418 Mass. 262, 267-268 (1994); Commonwealth v. Daughtry, 417 Mass. 136, 137-141 (1994). Subsequently, we noted in Commonwealth v. Santos, supra at 290 , that principal liability and joint venture *473 liability are not separate “theories” underlying the crime charged. That comment, in a case that does not particularly focus on joint venture concepts, relates to the proposition that the jury need not be unanimous in deciding whether the defendant was a principal or a joint venturer as long as there was sufficient evidence to support either role. Id. Now the court removes the statement about separate “theories” from its context to support a merging of principal and joint venture liability. In my view, commission of crimes as a principal or as a joint venturer involves more than simply different theories; the acts are in fact different crimes, with different elements, each of which must be proved by the Commonwealth beyond a reasonable doubt. They require different instructions by the trial judge. The fact that the penalties for the crimes are the same does not transform them into a single offense. Nevertheless, the court concludes that the offenses need not be distinguished in the instructions, thus virtually guaranteeing juror confusion by treating the principal as merely another kind of joint venturer. The chance of an unlawful verdict is then compounded by the decision of the court to restrict the scope of appellate review of the sufficiency of the evidence. I appreciate the superficial appeal of the court’s approach because it emphasizes certain characteristics that do in fact appear in both principal and joint venture liability: knowing participation in the commission of an offense and the requisite intent. But it ignores the factors that distinguish the role of the principal from that of the joint venturer. This introduces into the process a potential for confusion that is unfair to a defendant, and by reducing the scope of appellate review to whether there is evidence of knowing participation and intent, today’s decision comes perilously close to the Federal standard of review in principal-joint venture cases set forth in Griffin v. United States, 502 U.S. 46, 54-56 (1991) (if evidence warrants guilty verdict on one theory but not another, verdict may stand), which we sensibly rejected in Commonwealth v. Plunkett, 422 Mass. 634, 639-640 (1996). The court appears to seek to make it easier to sustain convictions: it refers to “[t]he inevitable risk posed by special verdict[s] [of] a greater number of mistrials arising from hung juries.” Ante at 465. The court also defends its change as one that “avoids *474 burdening the jury with the legal construct of joint venture and allows them instead to focus on the essence of a joint venture allegation.” Ante at 467. It is necessary that the jury bear this burden in order to ensure that convictions are based on sufficient evidence informed by instructions that clearly define the elements of the offenses charged. I prefer greater clarity in jury verdicts regarding principal and joint venture liability, not less. I would continue to have trial judges instruct on the differences between the concepts as they presently do. 2 We should then require, not merely define as “better” practice, see Commonwealth v. Perry, 432 Mass. 214 , 221 n.5 (2000), the use of special verdict slips so that we will know what the jury actually found. Because, as I have suggested, these are different offenses, I would abandon the holdings of Commonwealth v. Ellis, 432 Mass. 746, 761 (2000), and subsequent cases, and require that a finding that a defendant is guilty as a principal or as a joint venturer be unanimous. 3 Although I believe that these changes would assist in securing due process for defendants in these circumstances, I recognize that they would be significant alterations that we might not want to adopt all at once. I would at least prefer continuing the present state of the law governing joint venture cases to pretending that principal and joint venture liability are effectively the same thing, and accordingly I dissent. However, there is an ambiguous use of the word “agreement” in Commonwealth v. Bianco, 388 Mass. 358, 366 , S.C., 390 Mass. 254 (1983), which is repeated in some later decisions. See, e.g., ante at 463 n.15. I would, however, take this opportunity to clarify the requirement, or lack thereof, that the joint venturer be “present at the scene of the crime.” Compare Commonwealth v. Bianco, supra, with Commonwealth v. Ortiz, 424 Mass. 853 , 856 & n.4 (1997), and cases cited. If the evidence warrants, a defendant may be convicted on both theories. In addition, where there is sufficient evidence of a joint venture, it is not necessary that the principal be identified. See Commonwealth v. Netto, 438 Mass. 686, 700-701 (2003). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6454139. Public record. Not legal advice.