The opinion
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-558
COMMONWEALTH
vs.
TIMOTHY BROWN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this appeal we revisit various issues associated with
the murder prosecution of defendant Timothy Brown, see
Commonwealth v. Brown, 477 Mass. 805 (2017), cert. denied, 139
S. Ct. 54 (2018). On June 25, 2013, a jury found Brown guilty
of multiple charges, including felony-murder in the first degree
and home invasion. On direct appeal, the Supreme Judicial Court
rejected all claims of error with regard to Brown's convictions,
and we refer the reader to that opinion for a detailed
discussion of the facts. Id. at 807. Relevant for present
purposes is that Brown was not present in the home where the
murders occurred, but instead was tried and convicted on the
theory that he had jointly participated in planning two
felonies -- attempted armed robbery and home invasion -- and
that Brown's coventurers had committed two murders in the course
of that planned robbery. Id. at 808-811, 812, 814.
In upholding Brown's convictions, the Supreme Judicial
Court explicitly held that the evidence was sufficient to
convict Brown of felony-murder in the first degree under
Massachusetts law, and that convicting Brown of felony-murder in
the first degree did not violate Federal or Massachusetts
constitutional principles. Brown, 477 Mass. at 814, 822-823.
Importantly, a separate concurrence, joined by a majority of the
justices, went on to hold that for future prosecutions,
Massachusetts law would no longer recognize the felony-murder
crimes of which Brown had been convicted; rather, going forward:
"criminal liability for murder in the first or second
degree will be predicated on proof that the defendant acted
with malice or shared the intent of a joint venturer who
acted with malice. The sole remaining function of felony-
murder will be to elevate what would otherwise be murder in
the second degree to murder in the first degree where the
killing occurs during the commission of a life felony."
Id. at 832 (Gants, C.J., concurring).
Having concluded that it would change the Massachusetts
common law of felony-murder, the majority was explicit that its
change would not apply to Brown's case, but would apply only
prospectively:
"The abolition of felony-murder liability from our common
law of murder is prospective, applying only to cases where
trial begins after our adoption of the change. It will
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have no effect on felony-murder cases already tried,
including this case (which is why this is a concurrence
rather than a dissent)."
Brown, 477 Mass. at 834.
Finally, the court performed its review of Brown's
convictions of murder in the first degree under G. L. c. 278,
§ 33E, and concluded that on the facts before it, verdicts of
murder in the second degree were more "consonant with justice."
Brown, 477 Mass. at 824. Brown's first-degree murder
convictions were accordingly vacated and the case remanded for
resentencing. This appeal is taken from the judgments
resentencing the defendant in accordance with verdicts of murder
in the second degree, as well as of armed home invasion. For
the reasons that follow, we affirm.
Discussion. 1. The murder convictions. The defendant
raises a variety of arguments, which we address in turn. He
first argues that his convictions of murder in the second degree
must be overturned because the Commonwealth failed to prove
every element of the crime, and thus violated the due process
clause of the Fourteenth Amendment. Although not entirely
clear, this argument appears to stem from the notion that the
law applicable at the time of the murders required proof that
the defendant acted with malice. The short answer to this
argument is that the Supreme Judicial Court has already ruled
that there was sufficient evidence to find the defendant guilty
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of murder in the first degree under the laws of the Commonwealth
as of the time the defendant was tried and convicted. The
defendant's insufficient evidence argument is thus barred by
direct estoppel. See Commonwealth v. Sanchez, 485 Mass. 491,
498 (2020). Furthermore, the reduction of the verdicts to
murder in the second degree was done pursuant to the court's
powers under § 33E, and thus the decision to reduce the
convictions provides no basis for an insufficiency of the
evidence or other constitutional argument. Indeed, the
defendant has not argued that the court violated any
constitutional provision, Federal or State, by exercising its
§ 33E powers in that fashion.1
The defendant next argues that under the United States
Supreme Court decision in Fiore v. White, 531 U.S. 225 (2001),
the verdicts of murder in the first degree must be reversed
because the law of first-degree murder that the court announced
in Brown must be applied to the charges against Brown himself.
This argument is also incorrect. Fiore dealt with a criminal
prosecution in Pennsylvania where, after the defendant had been
convicted, the Pennsylvania Supreme Court (in a different case)
1 The defendant also argues that there was insufficient
evidence to convict him because he was not "at, or near the
scene" at the time his coventurers committed the murders. This
argument, or a like argument, was addressed and rejected on the
defendant's direct appeal. Brown, 477 Mass. at 811-814. It is
also barred by direct estoppel. See Sanchez, 485 Mass. at 498.
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clarified the necessary elements of the crime of which the
defendant had been convicted. Fiore, 531 U.S. at 226, 229. The
clarification showed that the defendant in Fiore could not have
been convicted of the crime at the time he was tried, because
the prosecution could not have established all the elements.
Fiore is plainly distinguishable from this case, because here
the Supreme Judicial Court's ruling makes clear that Brown was
properly convicted at the time he was tried, and that the court
changed the law for future prosecutions only.
Finally, the defendant argues, in essence, that Brown's
convictions must be vacated because the Supreme Judicial Court
was required by law to apply its new common-law rule to Brown's
case. Brown, 477 Mass. at 807-808. To the extent the
defendant's argument is based in Massachusetts retroactivity
law, it of course is without merit, as the Supreme Judicial
Court is the final arbiter of such an issue, and has already
decided it. Id. at 808, 834. To the extent the defendant's
argument is based on the Federal Constitution, the Supreme
Judicial Court also has already concluded that its decision to
announce a new common-law rule, but not to apply it to Brown,
did not violate any Federal constitutional provision. The court
addressed such arguments in Commonwealth v. Martin, 484 Mass.
634, 644 (2020), where the defendant argued that "as a matter of
due process, equal protection, and basic fairness, we should
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extend our holding in Brown to his case, [because his case] was
tried before the opinion in Brown and the appeal was pending
when Brown was decided." The court concluded that Federal law
was not violated by the court's refusal to apply its new common-
law rule to cases tried before (and including) Brown, "[b]ecause
Brown neither established a new Federal constitutional rule nor
a new Federal rule of criminal procedure." Martin, 484 Mass. at
644. We of course are bound by the Supreme Judicial Court's
ruling on that issue. See Commonwealth v. Dube, 59 Mass. App.
Ct. 476, 485-486 (2003). To the extent that the defendant
argues the due process holding of Martin should not apply
because the due process clause of the Fourteenth Amendment
requires that where the substantive law changes while an appeal
is pending, the new, current law must be given effect in cases
on appeal where the judgment is not final, we think that
argument, raised by the defendant in Martin, was resolved by
Martin, which we follow.
2. The armed home invasion conviction. The defendant also
argues that his armed home invasion conviction must be vacated,
for two reasons: (1) because there was insufficient evidence of
his "actual participation" in the crime, and (2) because the
home invasion conviction is duplicative of his convictions of
felony-murder in the first degree. The defendant's
insufficiency of the evidence argument was considered and
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explicitly rejected in the Brown decision itself. Brown, 477
Mass. at 814. The defendant's duplicative conviction argument
also fails. Where as here a defendant is convicted of felony-
murder based on two different underlying felonies, only the
offense that is "better suited to serve as the predicate felony"
is duplicative of the felony-murder conviction. Commonwealth v.
Simon, 481 Mass. 861, 872 (2019), quoting Commonwealth v.
Rasmusen, 444 Mass. 657, 666 (2005). Here Brown was not
separately convicted of the predicate felony of attempted armed
robbery, and such a conviction would have been duplicative and
thus invalid. But his conviction of home invasion may stand
independently.
3. Arguments based on Commonwealth v. Guardado. Finally,
the defendant argues, based on the Supreme Judicial Court's
decisions in Commonwealth v. Guardado, 491 Mass. 666, 690, 692
(Guardado I), S.C., 493 Mass. 1 (2023) (Guardado II), that we
are required to reverse his convictions of unlawful possession
of a firearm, and unlawful possession of ammunition. In
Guardado I, supra at 693, however, the Supreme Judicial Court
expressly held that its decision only applied to cases on direct
appeal as of the time Guardado I was decided on April 13, 2023;
Guardado I did not apply to reopen convictions that were final
as of April 13, 2023. The defendant's firearm convictions
became final as of the decision on direct appeal in Brown, in
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2017. We disagree with the defendant's contrary argument that
his firearm convictions were not final because, after the
Supreme Judicial Court's decision in Brown, the Superior Court
engaged in resentencing with respect to the reduced convictions
of murder in the second degree. Indeed, as the Commonwealth
points out, the defendant was sentenced to two years in the
house of correction for the firearm convictions in 2013, and
thus had already served his sentences for the firearm
convictions by the time the case was remanded for resentencing
in 2017.
Judgments affirmed.
By the Court (Rubin,
Englander & D'Angelo, JJ.2),
Assistant Clerk
Entered: May 30, 2024.
2 The panelists are listed in order of seniority.
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