Petition for Writ of Certiorari — Timothy Brown, Petitioner v. Massachusetts

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2014

TIMOTHY BROWN,

Petitioner,

-V.-

COMMONWEALTH OF MASSACHUSETTS

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME JUDICIAL COURT FOR

THE COMMONWEALTH OF MASSACHUSETTS

David H. Mirsky, Esquire

(MA B.B.O. # 559367)

Counsel of Record for Petitioner

Mirsky & Petito, Attorneys at Law

P.O. Box 1063

Exeter, NH 03833

Tel.: 603-580-2132

dmirsky@comeast.net

QUESTIONS PRESENTED

1. Whether the Fourteenth Amendment’s Due Process Clause requires a State to apply

retroactively a new rule of criminal law defining an element of a criminal offense.

2. Whether the Fourteenth Amendment’s Due Process Clause requires a State to apply

retroactively, to a case pending on direct appellate review, a new rule of criminal law defining an

element of a criminal offense.

TABLE OF CONTENTS

PAGE

Questions Presented 0.0... csensssecssssseceessssssseassceseeasessesssseesevesssirensessrseseeseapentsesestiaverseseaeenterey i

Table of Contents. 00... eeeessaesssesersesneststennesescsueenssasssevesescatsenenansenetees soeseaeecaeeoeesereneteeesassseeasanees ii

Table of Citations.....cscssesssssesessecesssesssreusereaesesesestsvessenessessetuerrecassesssssinensaeassstzensaesnenseustseesese rss iti

Citations to the Opinions Below 0... ececesseereesnereeteeceeesecesedereeessssatsesnseaesesenrcassesseessnenenaesenenes 1

Statement of Jurisdiction... eccsssesssscceseessssesesssescsunsessessssssssesssssssecneasseneinsssssaneessrssusateneasserses 2

Relevant Constitutional Provisions, Statutes, and Rules ......cs.sccecssscesensserrenssenesseesensarsseasoneesseen 2

Statement of the Case... cccccsesctceecereesecseteresssersceceserseessrsrtecenseretverecsetasearancesisanesaaessssenessencars 10

Reasons for Granting Review occ. ssessstesssnsssecstssseseesesssssesenntsasssusesessesssoeresecasearieveceseaeens 30

COnCHUSION ve essecectceesecenecsscesenecaestevenrsedecestecscasavenstssessasdeeseedscsssseatousesasenanesaaecenscasusceensensacersereseses 40

Certificate Of Service ......cseescesstsscesecscecsessescnenesstecaearsessenssssedencerecsearsceasaseunensesusanursenensseeeanenees 41

Affidavit of Timely Filing by Mail

Appendix

Full Opinion of the Supreme Judicial Court for the Commonwealth of Massachusetts,

Commonwealth v. Timothy Brown, No. SJC-11669, as published as

Commonwealth v. Brown, 477 Mass. 805, 81 N.E.3d 1173, 2017 Mass. LEXIS 710

(2017) cecscscssssctceerssescccrsnssssersseseseresescsoseaneseascrnensvenssaneresssanenansescetesrnesencersesesaeeets Appendix A.

Petition for Rehearing, Commonwealth v, Timothy Brown, Supreme Judicial Court for the

Commonwealth of Massachusetts No. SJC-11669 (filed October 2, 2017; docketed

October 3, 2017) ciecceccssssesstcecnsaseesisseseeuuseesssssvsnsnesssssesceseseensneseseeseeeareesseneess Appendix B

Notice of Denial of Petition for Rehearing, Commonwealth vs, Timothy Brown, Supreme

ii

Judicial Court for the Commonwealth of Massachusetts No. SJC-11669 (November 7,

QOD) eeececsecscsnececscesesrsccseenesessssessssseseasaaeerssvenssessuseeseseesuseetisseaeeenterseaserententanes Appendix C

Docket Entries, Commonwealth v. Timothy Brown, Middlesex Superior Court No.

0981 CROI511 (MICR2009-01511) voce cesserctetcsseeessssessssssaeseeeeassseeneseeeeesens Appendix D

Docket Entries, Commonwealth v. Timothy Brown, Supreme Judicial Court for the

Commonwealth of Massachusetts No. SJC-11669

Verdict Slip, Commonwealth v. Timothy Brown, Middlesex Superior Court

Indictment No. MICR-2009-01511-001 (First Degree Felony Murder) ..........0000 Appendix F

Verdict Slip, Commonwealth y. Timothy Brown, Middlesex Superior Court

Indictment No. MICR-2009-01511-002 (First Degree Felony Murder) .............0+ Appendix G

TABLE OF CITATIONS

; PAGE

CASES

Batson v. Kentucky, 476 U.S. 79 (1986) -.scccsessesesssssssssssssssnssssusssesssnecenenssnsnenimenenininnesenaseed 33

Bejarano v. State, 122 Nev. 1066, 146 P.2d 265 (2006)... ceesscsssesseseeresessenssreeneseesoercennees 38

Bousley v. United States, 523 U.S. 614 (1998) ees seeessssssssensessseseseasereresenensessesesenserines 34, 35

Commonwealth v. Benitez, 464 Mass. 686, 985 N.E.2d 102 (2013) ....cesssscscsseeeseeseeeees 31 n. 12

Commonwealth v. Bray, 407 Mass. 296, 553 N.E.2d 538 (1990) ...cssscccssseecsnseesreseessserrene 23,27

Commonwealth v. Brown, 477 Mass. 805, 81 N.E.3d 1173, 2017 Mass. LEXIS 710 (2017) ........

bucesenecseseseseseeeesesessseeeacsassasescanesereanes 1, 2, 21, 22, 23, 25, 27, 29, 30, 31, 31 n, 12, 32, 33, 34, 35, 37

Commonwealth v. Grey, 399 Mass. 469, 505 N.E.2d 171 (1987).....ccscsseseeeereee 22 n, 7,31 n. 12

iti

Commonwealth v. Judge, 420 Mass. 433, 650 N.E.2d 1242 (1995) oceans 22.7

Commonwealth v. Pidge, 400 Mass. 350, 509 N.E.2d 281 (1987) .....sesscsesscsessesessseeesssesseansesees 24

Commonwealth v. Rolon, 438 Mass. 808, 784 N.E.2d 1092 (2003) ...sscssesceseesserseesessesessssseeees 25

Commonwealth v, Sanna, 424 Mass. 92, 674 N.E.2d 1067 (1997)... sees 22 n. 7, 31 n. 12

Commonwealth v. Sires, 413 Mass. 292, 596 N.E.2d 1018 (1992)... scenester isseee 220.7

Davis v. United States, 417 U.S. 333 (1974)... trite esseeentsseantatseeeneevenss 34, 34 n. 14, 35, 37

Fiore v. White, 531 U.S. 225 (2001)... eeesssseeseessesesseseessseesseerseensresssasteseseesanesnssseeaseseanes 36, 37

Griffith v, Kentucky, 479 U.S. 314 (1987) .ccccsssssecctsesssiseesererserescsssseneseersaseeneey 23, 27, 32, 33

In. re Lopez, 246 Cal, App. 4!" 350 (2016) wessscssssssscsssesessscssssesecscneseerssennetteccennecssnensecensneeres 39, 40

In re Martinez, 3 Cal. 5" 1216 (2017) ssn sean savsesaeseavensestessescsenstsuasssonesensasensesesaees 39

In re Winship, 397 U.S. 358 (1970) ..csssesssseseessesneerens 23, 23 n. 8, 24, 26, 28, 28 n. 9, 29, 35-36, 37

Jackson v. Virginia, 443 U.S, 307 (1979)... eect cssesesessssnsesssnsssesssssseccaseecreasitecnetepesesseseeesenes 37

Johnson v. United States, 135 S. Ct. 2551 (2015) oe ecessssesesssecseoesersssssessseersessuneastesensenseesen 34

McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004)... escesesssssessssosssereeesesnsseeaeeresseerenses 38

People v. Chiu, 59 Cal, 4% 155 (2014). ecseccssesesssecssesssnecessecsenecnseseansecavesseecenetennvesneeesetesnaeess 39, 40

People v. Feingold, 7 N.Y.3d 288 (2006) ...scscsssssssenssessseseeeseeeeees 23, 28, 28 n. 10, 38, 38 n. 16

People v. Hill, 85 N.Y.2d 256 (1995) sessecaesnecsevsacssesacsusssssecsseesseseesaeennnasassssasessconessess 23, 28, 38, 39

People v. Jean-Baptiste, 11 N.Y.3d 539 (2008)... scssssescrseseeeseccenersterrenersosperesessenes 23, 28, 38, 39

People v. Ryan, 82 N.Y.2d 497, 626 N.E.2d 51, 605 N.Y.S.2d 235 (1993) vcccssessssessseseessreeens 39

People v. Vasquez, 88 N.Y.2d 561, 573, 670 N.E.2d 1328, 647 N.Y.S.2d 697 (1996) ......scceee 39

Saffle v. Parks, 494 U.S. 484, 495 (1990) wescescssssssesssssssvensssssssssssesnsssstesnesceseese pune 23, 27, 32, 36

Schriro v. Summerlin, 542 U.S. 348 (2004) .ccseeccssesssssssssesissesenssssseessereees 33, 34, 35, 38, 40

iv

Teague v. Lane, 489 U.S. 288 (1989) oc ccsssssenssresestessesesssseseeesessesenneerennes 23, 27, 32, 32 n. 13, 36

United States v. Addonzio, 442 U.S. 178 (1979)....cesscssssssscssssertseasesssseneereecsesersensesees 34 n. 14

Welch v. United States, 136 S. Ct. 1257 (2016) ..ccsseseesesssscereseaneessess 33, 34, 34-35 n, 15, 35, 37

Whorton v. Bockting, 549 U.S. 406 (2007)... ssssessecrssseestsassssnesessenesesienees 23, 27, 32, 33, 36

STATUTES

28 ULS.C. § 1257 (8) wececcessecsessectestenesessesenseesnssersorenseesssassesseesssensssersessasasenayerasresecenaecsscsnneneeseess 2,3

Mass, Gen. L. c. 127, § 335A. cee ccssccscscesessesseccsesseetacsesseeeansesacsensacseceesecesseaeeetegsaeetseasaeees 4-5,12n.4

Mass. Gen. L. 6. 265, § 1 cscs cescsnccseeseesesssetserenesersenoeressessecausensenecsansesserseedeneeoetasteaseasenranss 4, 10, 30

Mass. Gen. L. ©. 265, §§ 2(a), (C) vssssessessssesseseesscssenssssseseensesssesssenssnsssscesenssestessnssssesorecsanes 4,120.4

Mass. Gen. L. 6. 265, § 17 oc escsssscccecscssnsenseceeeceenensneccseneseacsesssenenearsseseqecnsavaeaerdeavanessnansensare 5, 11

Mass. Gen. L. 6. 265, § 18C..cccecsscssesessesssesescasenseseecanapescssepestsseseaeesenessssseeesersaveceeseseseseteansen 6, 10

Mass. Gen. L. ¢. 269, § LOUD)... ec esessesecesnesesssssssesatsseeeccessecesassecsemossnssssessenetscsesasseaseenseesees 6, 10

Mass, Gen. L. ©. 278, § 33 Bvcccssessessssesscsoessessssevssseseesssesssecsessssessvecsseeserspeseeessrnerevenss 7, 21, 22, 27, 35

Mass, Gen, L. 6. 279, § 24 vcssscssseressssesessscsesssetesssersessasseasevsssegecceesnenecsenespisseseecscarsnenes 4,5,12n.4

Pa. Stat. Amm. Tit. 35, § 6018(8) occ ssesscesssesseecescetescsnssessesnsessneeesnesesneseennanasenensseeate 8, 36-37

18 U.S.C. § 92208) ..ecssseseesssscsssssessersssseessssnsvsssessesssssssecatenussnesesssssesusssesseesnesesseesses 7, 8, 34-35 n. 15

18 U.S.C. § 924 (a) (2)... cssssecsesneesseresseseessssssanssteassrsesssisesussesersessesssredensinesserseenseeeeeens 8, 34-35 n. 15

18 U.S.C.S. § 924(e)(2)(B)Gi) [residual clause of Armed Career Criminal Act of 1984]...

sovsvaveceseceesessseeesssverssusssonasassssossousssssonssvstsenegtecearssueeaneatnen evvesensunsnssseseensnannsserenens 8 34, 34-35 1. 15, 35

CONSTITUTIONAL PROVISIONS

ULS, Const. amend. VI .cessesssscsescccsscsssseccesessssssecnsensensseesessssessessssreaceteessnieensasasentecatsaneess 2, 21,27

U.S. Const. amend. XIV ....... i, 3, 21, 23 n. 8, 24, 26, 28, 28-29, 27, 28 n. 9, 29, 30, 33, 36, 37, 39

Article XII, Declaration of Rights, Constitution of Massachusetts .......0.ccecieeseeeseenestseeeeeee 3, 24

RULES

Rule 10(b), Rules of the Supreme Court of the United States... :scsceessssenereesenenstesees 8, 30, 37

Rule 10(c), Rules of the Supreme Court of the United States 00... cc ecesescsesenssenesesessanareree 9, 30

Rule 13(3), Rules of the Supreme Court of the United States... ccssesssseessessesesseeesnssesees 1,9

Rule 27(a), Massachusetts Rules of Appellate Procedure... ccsecssrecesrsreerseseetetenesseee 1, 2, 10, 22

vi

Petitioner Timothy Brown respectfully prays that a writ of certiorari issue to review

the judgment of the Supreme Judicial Court for the Commonwealth of Massachusetts.

CITATIONS TO THE OPINIONS BELOW —

The Supreme Judicial Court for the Commonwealth of Massachusetts (“Supreme

Judicial Court’) affirmed petitioner Timothy Brown’s convictions and sentence in the

Massachusetts Superior Court in a criminal case, which judgment was entered on September

20, 2017. The opinion of the Supreme Judicial Court of Massachusetts affirming Mr.

Brown’s convictions and sentence is reported as Commonwealth v. Brown, 477 Mass. 805,

81 N.E.3d 1173, 2017 Mass, LEXIS 710 (2017). A copy of the opinion below of the

Supreme Judicial Court of Massachusetts is attached hereto as Appendix A. The petitioner

timely filed a Petition for Rehearing (attached hereto as Appendix B) in the Supreme Judicial

Court by mail on October 2, 2017, which was docketed in the Supreme Judicial Court on

October 3, 2017. See Docket Entries, Commonwealth v. Timothy Brown, Supreme Judicial

Court for the Commonwealth of Massachusetts No. SIC-11669 (attached hereto as Appendix

E) (hereinafter, “Supreme Judicial Court Docket Entries”), at 3, Petition for Rehearing,

Commonwealth v. Timothy Brown, Supreme Judicial Court for the Commonwealth of

Massachusetts No. SJC-11669 (filed October 2, 2017; docketed October 3, 2017, as paper

#34) (Appendix B); Mass. R. App. P. 27(a); compare Sup. Ct. R. 13(3). On November 7,

2017, the Supreme Judicial Court denied the defendant’s Petition for Rehearing. See Notice

of Denial of Petition for Rehearing, Commonwealth vs. Timothy Brown, Supreme Judicial

Court for the Commonwealth of Massachusetts No. SJC-11669 (November 7, 2017)

(Appendix C); Supreme Judicial Court Docket Entries (Appendix E), at 2. This petition

follows.

STATEMENT OF JURISDICTION

The Supreme Judicial Court for the Commonwealth of Massachusetts (“Supreme

Judicial Court”) affirmed petitioner Timothy Brown’s convictions and sentence in the

Massachusetts Superior Court in a criminal case, which judgment was entered on September

20, 2017. The opinion of the Supreme Judicial Court affirming Mr. Brown’s convictions and

sentence is reported as Commonwealth v. Brown, 477 Mass. 805, 81 N.E.3d 1173, 2017

Mass. LEXIS 710 (2017) (attached hereto as Appendix A). Mr. Brown timely filed a

Petition for Rehearing on October 2, 2017 (attached hereto as Appendix B). See Mass. R.

App. P. 27(a) (petition for rehearing must be filed within fourteen days of the rescript).

Upon consideration by the Supreme Judicial Court, said petition for rehearing was denied on

November 7, 2017. The order denying Mr. Brown’s petition for rehearing, Notice of Denial

of Petition for Rehearing, Commonwealth vs. Timothy Brown, Supreme Judicial Court for

the Commonwealth of Massachusetts No. SJC-11669 (November 7, 2017), is attached hereto

as Appendix C.) See Supreme Judicial Court Docket Entries, (attached hereto as Appendix

E), at 2. Jurisdiction in this Court is conferred by 28 U.S.C. § 1257(a).

RELEVANT CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES

CONSTITUTIONAL PROVISIONS

1. Amendment VI of the Constitution of the United States

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and district whergin the crime shall have been

committed, which district shall have been previously ascertained by law, and to be informed

of the nature and cause of the accusation, to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in his favor, and to have the Assistance of

2

Counsel for his defence.

2. Amendment XTV of the Constitution of the United States

Section 1. All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws... .

3. Article XII of the Declaration of Rights, Constitution of Massachusetts

Art. XIE. Prosecutions Regulated; Jury Trial.

No subject shall be held to answer for any crimes or offense, until the same is fully and

plainly, substantially and formally, described to him; or be compelled to accuse, or furnish

evidence against himself. And every subject shall have a right to produce all proofs, that

may be favorable to him; to meet the witnesses against him face to face, and to be fully heard

in his defence by himself, or his counsel, at his election. And no subject shall be arrested,

imprisoned, despodiled, or deprived of his property, immunities, or privileges, put out of the

protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of

his peers, or the law of the land. And the legislature shall not make any law, that shall

subject any person to a capital or infamous punishment, excepting for the government of the

army and navy, without trial by jury.

STATUTES

4, 28 U.S.C, § 1257(a)

§ 1257. State courts; certiorari

(a) Final judgments or decrees rendered by the highest court of a State in which a decision

could be had, may be reviewed by the Supreme Court by writ of certiorari where the validity

of a treaty or statute of the United States is drawn in question or where the validity of a

statute of any State is drawn in question on the ground of its being repugnant to the

Constitution, treaties, or laws of the United States, or where any title, right, privilege, or

immunity is specially set up or claimed under the Constitution or the treaties or statutes of, or

any commission held or authority exercised under, the United States. ...

5. Massachusetts General Laws, chapter 265, section 1.

§ 1. Murder.

Murder committed with deliberately premeditated malice aforethought, or with extreme

atrocity or cruelty, or in the commission or attempted commission of a crime punishable with

death or imprisonment for life, is murder in the first degree. Murder which does not appear

to be in the first degree is murder in the second degree, Petit treason shall be prosecuted and

punished as murder. The degree of murder shall be found by the jury.

6. Massachusetts General Laws, chapter 265, section 2.

§ 2. Murder — Penalty.

(a) Except as provided in subsection (b), any person who is found guilty of murder in the

first degree shall be punished by imprisonment in the state prison for life and shall not

be eligible for parole pursuant to section 133A of chapter 127... .

(c) Any person who is found guilty of murder in the second degree shall be punished by

imprisonment in the state prison for life and shall be eligible for parole after the term of

years fixed by the court pursuant to section 24 of chapter 279....

7. Massachusetts General Laws, chapter 127, § 133A.

4

§ 133A. Eligibility for Parole; Permits; Violations,

Every prisoner who is serving a sentence for life in a correctional institution of the

commonwealth, . . . , except prisoners serving a life sentence for murder in the first degree

who had attained the age of 18 years at the time of the murder . . . shall be eligible for parole

at the expiration of the minimum term fixed by the court under section 24 of chapter 279. . . .

8. Massachusetts General Laws, chapter 279, section 24.

If a convict is sentenced to the state prison, except as an habitual criminal, the court shall not

fix the term of imprisonment, but shall fix a maximum and a minimum term for which he

may be imprisoned. . . . In the case of a sentence to life imprisonment, except in the case of a

sentence for murder in the first degree, and in the case of multiple life sentences arising out

of separate and distinct incidents that occurred at different times, where the second offense

occurred subsequent to the first conviction, the court shall fix a minimum term which shall be

not less than 15 years nor more than 25 years.

9. Massachusetts General Laws, chapter 265, section 17.

§ 17. Robbery --- Penalty in Certain Cases.

Whoever, being armed with a dangerous weapon, assaults another and robs, steals or takes

from his person money or other property which may be the subject of larceny shall be

punished by imprisonment in the state prison for life or for any term of years; provided,

however, that any person who commits any offence described herein while masked or

disguised or while having his features artificially distorted shall, for the first offence be

sentenced to imprisonment for not less than five years and for any subsequent offence for not

less than ten years. Whoever commits any offense described herein while armed with a

firearm, shotgun, rifle, machine gun or assault weapon shall be punished by imprisonment in

5

the state prison for not less than five years. Any person who commits a subsequent offense

while armed with a firearm, shotgun, rifle, machine gun or assault weapon shall be punished

by imprisonment in the state prison for not less than 15 years.

10. Massachusetts General Laws, chapter 265, section 18C.

§ 18C. Home Invasion.

Whoever knowingly enters the dwelling place of another knowing or having reason to know

that one or more persons are present within or knowingly enters the dwelling place of another

and remains in such dwelling place knowing or having reason to know that one or more

persons are present within while armed with a dangerous weapon, uses force or threatens the

imminent use of force upon any person within such dwelling place whether or not injury

occurs, or intentionally causes any injury to any person within such dwelling place shall be

punished by imprisonment in the state prison for life or for any term of not less than twenty

years.

11. Massachusetts General Laws, chapter 269, section 10(h)

§ 10. Weapons -- Dangerous Weapons -- Unlawfully Carrying.

(h) (1) Whoever owns, possesses or transfers a firearm, rifle, shotgun or ammunition without

complying with the provisions of section 129C of chapter 140 shall be punished by

imprisonment in a jail or house of correction for not more than 2 years or by a fine of not

more than $500. Whoever commits a second or subsequent violation of this paragraph shall

be punished by imprisonment in a house of correction for not more than 2 years or by a fine

of not more than $1,000, or both. Any officer authorized to make arrests may arrest without

a warrant any person whom the officer has probable cause to believe has violated this

paragraph.

12. Massachusetts General Laws, chapter 278, section 33E.

§ 33E. Capital Cases --- Appeals.

In a capital case as hereinafter defined the entry in the supreme judicial court shall transfer to

that court the whole case for its consideration of the law and the evidence. Upon such

consideration the court may, if satisfied that the verdict was against the law or the weight of

the evidence, or because of newly discovered evidence, or for any other reason that justice

may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of

guilty, and remand the case to the superior court for the imposition of sentence. For the

purpose of such review a capital case shall mean: (i) a case in which the defendant was tried

on an indictment for murder in the first degree and was convicted of murder in the first

degree; or (ii) the third conviction of a habitual offender under subsection (b) of section 25 of

chapter 279. After entry of the appeal in a capital case and until the filing of the rescript by

the supreme judicial court motions for a new trial shall be presented to that court and shall be

dealt with by the full court, which may itself hear and determine such motions or remit the

same to the trial judge for hearing and determination. If any motion is filed in the superior

court after rescript, no appeal shall lie from the decision of that court upon such motion

unless the appeal is allowed by a single justice of the supreme judicial court on the ground

that it presents a new and substantial question which ought to be determined by the full court.

13. 18 U.S.C. § 922(g), [felon in possession of a firearm].

§ 922. Unlawful acts

(g) It shalt be unlawful for any person--

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term

exceeding one year... . to ship or transport in interstate or foreign commerce, or possess in

7

or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition

which has been shipped or transported in interstate or foreign commerce.

14, 18 U.S.C. § 924(a)(2).

§ 924. Penalties

(a) (2) Whoever knowingly violates subsection .. . (g). . . of section 922 [18 USCS § 922]

shall be fined as provided in this title, imprisoned not more than 10 years, or both.

15, 18 U.S.C. § 924(e) (2) (B) (ii) fresidual clause, Armed Career Criminal Act of 1984].

§ 924. Penalties

(e)....(@) As used in this subsection -- ....(B) the term “violent felony” means any

crime punishable by imprisonment for a term exceeding one year, or any act of juvenile

delinquency involving the use or carrying of a firearm, knife, or destructive device that

would be punishable by imprisonment for such term if committed by an adult, that-- .. . . (ii)

is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that

ptesents a serious potential risk of physical injury to another ....

16. Pennsylvania Statutes Annotated, Title 35, section 6018.401(a).

§ 6018.401. Management of hazardous waste.

(a) No person or municipality shall store, transport, treat, or dispose of hazardous waste

within this Commonwealth unless such storage, transportation, treatment, or disposal is

authorized by the rules and regulations of the department; no person or municipality shall

own or operate a hazardous waste storage, treatment and disposal facility unless such person

or municipality has first obtained a permit for the storage, treatment and disposal of

hazardous waste from the department; and, no person ot municipality shall transport

hazardous waste within the Commonwealth unless such person or municipality has first

8

obtained a license for the transportation of hazardous waste from the department.

RULES

17. Rule 10, Rules of the Supreme Court of the United States [“Sup. Ct. R. 10”]

Rule 10. Considerations Governing Review on Certiorari

Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition

for a writ of certiorari will be granted only for compelling reasons. The following, although

neither controlling nor fully measuring the Court’s discretion, indicate the character of the

reasons the Court considers: . . . . (b) a state court of last resort has decided an important

question of federal law in a way that conflicts with the decision of another state court of last

resort or of a United States court of appeals; (¢) a state court or a United States court of

appeals has decided an important question of federal law that has not been, but should be,

settled by this Court, or has decided an important federal question in a way that conflicts with

relevant decisions of this Court. ...

18. Rule 13(3), Rules of the Supreme Court of the United States. (“Sup. Ct. R. 13(3)”)

Rule 13. Review on Certiorari: Time for Petitioning

3. The time to file a petition for a writ of certiorari runs from the date of entry of the

judgment or order sought to be reviewed, and not from the issuance date of the mandate (or

its equivalent under local practice). But if a petition for rehearing is timely filed in the lower

court by any patty, or if the lower court appropriately entertains an untimely petition for

rehearing or sua sponte considers rehearing, the time to file the petition for a writ of

certiorari for all parties (whether or not they requested rehearing or joined in the petition for

rehearing) runs from the date of the denial of rehearing or, if rehearing is granted, the

subsequent entry of judgment... .

19. Rule 27(a), Massachusetts Rules of Appellate Procedure (“Mass. R. App. P. 27(a)”)

RULE 27. PETITION FOR REHEARING

(a) Time for Filing; Content; Answer; Action by Court if Granted. A petition for

rehearing should be filed with the clerk of the appellate court within fourteen days after

the date of the rescript unless the time is shortened or enlarged by order. It shall state

with particularity the points of law or fact which it is contended the court has

overlooked or misapprehended and shall contain such argument in support of the

petition as the petitioner desires to present... .

STATEMENT OF THE CASE’

On December 22, 2009, a Middlesex County grand jury returned indictments

charging defendant Timothy Brown with first degree murder in the death of Luis Antonio

Delgado, G. L. c. 265, § 1 (indictment no. 2009-1511-001), first degree murder in the death

of Hector Delgado, G. L. c. 265, § 1 (indictment no. 2009-1511-002), home invasion, G, L. c,

265, § 18[C] (indictment no. 2009-1511-003), possession of a firearm, a .380 High Point

Model CF380 semi-automatic pistol, Serial Number P854596, without FID card, G. L. c.

269, § 10(h) (indictment no. 2009-1511-004), and possession of ammunition without FID

card, G. L. C. 269, § 10(h) (indictment no. 2009-1511-005), (R.A.1-10) On June 4, 5, 6, 7,

10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25 and 26, 2013, Brown was tried before the Hon.

2 Citation to Defendant's Record Appendix refers to the Record Appendix filed in the

Supreme Judicial Court as an attachment to Defendant's Brief. Defendant’s Record

Appendix is hereinafter cited as “(R.A.(page number))”.

10

Sandra L. Hamlin, J,, and a jury.? (R.A.39-40) On June 25, 2013, he was found guilty: on

#001 of first degree felony murder by attempted armed robbery, see G. L. c. 265, § 17, and

home invasion, Verdict Slip, Commonwealth y. Timothy Brown, Middlesex Superior Court

Indictment No. MICR-2009-01511-001 (First Degree Felony Murder) (attached hereto as

Appendix F); on #002 of first degree felony murder by attempted armed robbery and home

invasion, Verdict Slip, Commonwealth v, Timothy Brown, Middlesex Superior Court

Indictment No. MICR-2009-01511-002 (First Degree Felony Murder) (attached hereto as

Appendix G); on #003 of home invasion; on #004 of possession of a firearm, and on #005 of

possession of ammunition. Docket Entries, Commonwealth v. Timothy Brown, Middlesex

Superior Court No. 0981CR01511 (MICR2009-01511) (attached hereto as Appendix D), at

1-2, 11.

On June 26, 2013, he was sentenced as to #001, to life imprisonment without the

3 Transcript, Commonwealth v. Brown, No. MICR2009-01511, “Motion to Dismiss”, April

17, 2013, Before: Haggerty, J.; Transcript, Commonwealth v. Brown, No. MICR2009-01511,

“Jury Trial — Day 1”, June 4, 2013, Before: The Honorable Sandra L, Hamlin, J. “Tr.

6/4/2013/(page number)”); id., “Jury Trial — Day 2”, June 5, 2013 (“Tr. 6/5/2013/(page

number)”); id., “Jury Trial — Day 3”, June 6, 2013 (“Tr. 6/6/2013/(page number)"); [There is

no trial transcript volume labeled “Jury Trial — Day 4” or “Volume 4”); id., “Tury Trial - Day

5”, June 10, 2013 “Tr. 6/10/2013 (page number)”); id., “Jury Trial — Day 6”, June 11, 2013

(“Tr. 6/11/ 2013/(page number)”); id., “Jury Trial — Day 7”, June 12, 2013 (Pages: 1-61)

(“Tr. 6/12/2013/(page number)”); id., “Trial By Jury, Before The Honorable Sandra Hamlin”,

June 13, 2013 (labeled, “Volume: I” but hereinafter “Tr. 6/14/2013/(page number)”); id.,

June 14, 2013 (labeled, “Volume: II” but referred to as “Tr. 6/14/2013/(page number)”)); id.,

June 17, 2013 (Pages: 1-137)(labeled, “Volume: IIT”, but referred to as “Tr. /17/2013/(page

number)”); id., June 18, 2013 (Pages: 1-109)(labeled, “Volume: IV” but referred to as “Tr.

6/18/2013/(page number)”); id., June 20, 2013 (labeled, “Volume: VI” but referred to “Tr.

6/20/2013/(page number)”); id., June 21, 2013 (labeled, “Volume: VII” but referred to as

“Tr, 6/21/2013/(page number”); id., June 24, 2013 (labeled, “Volume: VIII” but referred to

as “Tr. 6/24/2013/(page number)”); id., June 25, 2013 (labeled “Volume: IX” but referred to

as “Tr. 6/25/2013page number)”); id., June 26, 2013 (labeled “Volume: X” but referred to

as “Tr. 6/26/2013/(page number)”).

il

possibility of parole* at M.C.I. Cedar Junction; as to #002, to life imprisonment without the

possibility of parole at M.C.L. Cedar Junction, from and after #001; as to #003, to M.C.I.

Cedar Junction for 20 years to 20 years and 1 day, concurrent with #001; on #004, to 2 years

in the House of Correction, concurrent with #001; as to #005, to 2 years in the House of

Correction, concurrent with #001. (R.A.46) On July 3, 2013, Brown filed a notice of appeal

in the Superior Court. (R.A.35, 46) The case was entered in the Supreme Judicial Court of

Massachusetts on May 5, 2014.

1. Trial Evidence

The Commonwealth moved to admit (R.A.11-15), and Brown moved to exclude

(R.A.16-20), evidence of an alleged prior armed robbery of two women on October 22, 2009,

by Ariel Hernandez, driver of a green Honda Civic, who got out of his car with Giovanni Hill

and pointed a gun at the two and grabbed their purses, as Hill was standing a short distance

away, laughing, and they got back in the car, where Timothy Brown and Darien Doby were

allegedly present. (Tr. 6/4/2013/16, 16-24)

Giovanni Hill testified:

In the evening of October 22, 2009, Hill was a passenger in a green Honda Civic, in

Pawitucketville. Ariel Hernandez was driving; Timothy Brown and Darien Doby were in the

back seat. (Tr. 6/20/2013/6-10) Hernandez drove around the block and saw two women.

Hernandez parked, and said, “Get out of the car and help me rob these two women.” (Tr.

6/20/2013/10-11) Hernandez was wearing a green jacket with a hood. When Hill and

Hernandez. got out of the car, Hernandez grabbed his gun and wrestied the girls for their

4G. L. c. 265, §§ 2(a), (c); G. L. &. 127, § 133A; G. L. ¢. 279, § 24.

12

pocketbooks and went back to the car. He stopped the car in the middle of the street and put

the pocketbooks and gun in the trunk. (Tr. 6/20/2013/10-13) They traveled to a friend i

Simon's house. Hernandez asked Simon for a sweater that he could switch for his jacket;

Simon gave him a black sweater. Simon, Hernandez, Hill, Brown and Doby drove to the

Centerville Dunkin’ Donuts. Hernandez and Simon left; Hill, Brown and Doby went to

Dunkin’ Donuts, met a friend, Natasha, and stayed for 45 minutes, then walked to Brown’s

apartment on Bridge Street. Hernandez and Simon were at the front door; Hernandez had the

purses, Brown’s apartment was a one bedroom, In the purses, Hernandez found $80.00 in

cash, credit cards and IDs. He put his gun in a cabinet on top of the fridge. (Tr.

6/20/2013/13-17) Having found a PIN number, be gave the ATM cards to Hill and told him

to go to the bank and try to withdraw money. Hill did this. (Tr. 6/20/2013/17-19) Hill was

unable to withdraw money, and went back to Brown’s apartment. Hill, Hernandez, Simon,

Natasha, Brown and Doby smoked marijuana; some drank Hennessey. At about 11:30 or

11:45, Karon “Mick” McDougal, Josh and Jamal arrived. Karon pulled Hernandez aside and

asked him if he wanted to be involved in a robbery; when this occurred, they were first in the

kitchen and then went in the bathroom; they were in the bathroom for three or four minutes,

during which Karon asked his cousin, Jamal, to come into the bathroom. Brown was not

ptesent in the bathroom for that conversation.” (Tr. 6/20/2013/19-28) Hernandez asked

Brown for a sweater with a hoodic; Brown gave Hernandez a hoodie from the side of his

5 When Ariel was pulled aside and was asked about whether he wanted to do an armed

robbery, Ariel was originally in the kitchen and he came out of the kitchen. Ariel and Karon

went into the bathroom and they closed the door. They called Jamal into the bathroom, and

they were in the bathroom for a period of time, and all that time the defendant was in the

kitchen. (Tr. 6/20/2013/54-57)

13

couch. Hernandez asked for another sweater, one without a zipper, and Brown gave

Hernandez a sweater without a zipper.

The Commonwealth introduced conflicting evidence regarding retrieval of a gun.

Hill testified that Hernandez asked Brown if Brown could lend Hernandez his gun, and

Brown went to his room and grabbed the gun and gave it to Jamal. (Tr. 6/20/2013/29)

Commonwealth witness Joshua Silva testified that when Jamal asked Tim if he could use

Tim’s gun, Tim kind of brushed him off, Tim was reluctant or didn’t want to give J amal his

gun. Then Karon and Ariel didn’t approach Tim. “He just said it while we was all in the

living room.” And Tim kind of resisted Jamal again, brushed him off again. The next thing

that happened is Jamal went into Tim’s room and grabbed the gun. (Tr. 6/24/2013/53-57)

Giovanni Hill further testified to the following:

Jamal, Josh, Hernandez, and Karon left to do the robbery. Ariel had his own gun.

Jamal had Tim’s gun. Exhibit 79 is Tim’s gun. They left and came back in approximately an

hour to an hour and a half. When they came back they all came in together. Hill asked Ariel

what happened in the presence of Tim, Darien, Karon, and Josh, and Ariel said nothing. Hill

saw Jamal hand Tim’s gun back to Tim. They gave Tim back his hoodies. They stayed not

even five minutes, then Karon, Jamal and Josh left. Josh came back to get his keys. Brown

didn’t want Ariel to leave his gun in Brown’s house. Ariel asked Brown to take it and Brown

said, “No.” Hill got in the green Honda Civic, with Darien and Ariel. They dropped off

Darien and were stopped by the Lowell Police. Ariel screamed at the top of his lings,

“Don’t say anything. I’m going to fuck you up.” (Tr. 6/20/2013/30-34) After Tim gave the

gun to Jamal, Ariel said “he needed a gun to do the robbery.” (Tr. 6/20/2013/83) Before

Tim gave the gun to Jamal, Karon said the robbery was going to be the easy robbery and he

14

just needed another sweater. Tim gave him a sweater. (Tr. 6/20/2013/83) When they came

out of the bathroom, Karon said they needed Tim’s gun to break into the apartment so they

could do the robbery, (Tr. 6/20/2013/83-84)°

State Police Sgt. Bruce O’ Rourke testified:

On October 23, 2009, around 2:00 a.m. he became involved at 7 Marshal Terrace in

Lowell. On October 24, 2009, around 1:30 p.m., O’Rourke and Detective Ciabola

interviewed Brown at the police station. (Tr. 6/21/2013/4-6, 10) A video of the interview

was played for the jury. (Tr. 6/21/2013/15-16) In the search of Brown’s apartment, 9mm

ammunition was found. A .380 High Point gun was found in Brown’s bedroom between the

mattress and box spring. (Tr. 6/21/2913/48-49)

Brian Staples testified:

In October of 2009, Staples lived at 7 Marshall Terrace with Tony Martinez and

Hector Delgado. On the night of October 22 or October 23 , Staples heard a loud knock, then

voices, and a scuffle in the kitchen. (Tr. 6/14/2013/55-58) Tony was yelling. Staples and

Hector went downstairs; Tony was in a headlock with a gun pointed at his head; another

person pointed a gun at Staples and said “Get the fuck upstairs.” (Tr. 6/14/2013/60-63)

That person wore a red letterman’s jacket with beige, yellowish sleeves and a little emblem

on it, and a grayish hoodie under the jacket. (6/14/2013/63, 76)

Michael Delgreco testified:

On October 22 to October 23, 2009, Delgreco lived at 7 Marshall Terrace, with Tony,

6 The transcript does not indicate that Karon told Timothy Brown that Timothy Brown’s gun

was needed “to break into the apartment so they could do the robbery.” See Tr.

6/20/2013/83-84. ;

15

Hector, and Staples. (6/18/2013/72) At about 1:00 or 1:15 a.m. on October 23, there was

banging at the front door, Tony yelled back, and came down to the front door. There was

scuffling and arguing, then two guys came up the stairs, one had Tony at gunpoint and one

ran at Delgreco with his gun pointed at him, asked Delgreco to get on the floor repeatedly

and wrapped Delgreco in a blanket. (6/18/2013/72-75) The person who came at Delgreco

had a gray hooded sweatshirt, a dark mask and a black gun; he hit Delgreco with the butt end

of the gun on the back right-hand side of his head, then wrapped Delgreco’s head in a

blanket. The person with Tony was wearing black clothes and had a gun to Tony’s head.

Tony was down on all knees as Delgreco was being wrapped up. Both guns were black.

(6/18/2013/76-77, 84, 89)

Joshua Silva testified:

Silva testified pursuant to a cooperation agreement by which a charge of first degree

murder had been reduced by the Commonwealth to manslaughter, on which he was

sentenced to 7 years to 7 years and one day, and 5 years of probation on home invasion. (Tr.

6/24/2013/13-14) On October 22, 2009, Silva got a call from Jamal McDougal who said he

was at Brown’s house hanging out and to come by. He arrived at 12:15 or 12:20 a.m.,

present were Karon “Mick” McDougal, Jamal, Ariel, Giovanni, Darien, Timothy, and two

people Silva didn’t know. People were drinking, smoking, and playing Play Station. (Ir.

6/24/2013/14-19) While Silva was in the living room and Brown was in the kitchen, Jamal

asked Silva if he wanted to make a “quick buck” as “the driver” for a robbery; Silva agreed

to do so. (Tr. 6/24/2013/20) When Jamal came over to Silva there was a little noise in the

place, music was playing and the Play Station game was making noise. (Tr. 6/24/2013/53-54)

In the kitchen with Silva, Brown, Karon, Jamal, and Hill, Ariel pulled a black gun with a

16

brown handle from the top cabinet; he said, “This is the gun I’m using.” Silva went in the

living room, where Ariel said, “If we’re going to do it, let’s go do it now.” (Tr.

6/24/2013/22) Karon, Jamal and Ariel asked Brown if they could use his sweaters, Ariel

said he preferred ones with hoodies so he could cover his face. Brown went in his room and

grabbed hoodies; they were dark, one had a “B” on it. Jamal, Karon and Ariel got hoodies.

(Tr. 6/24/2013/23)

When Karon, Jamal and Ariel asked for sweaters, Jamal asked Brown if he could use

his gun. In response, Brown

kind of brushed him off like, hold on, like he didn’t really want him to use his gun.

So then everybody kept getting ready and then Jamal asked him again if he could use

his gun. And then Timmy was like, hold on, And I told him, no, but he was brushing

him off, and then that’s when Ariel and Karon told Timmy, “Just let him use the gun.

Nothing’s going to happen to it.”

And that’s when Timmy said, “All right. It’s in my room under my bed.”

(Tr. 6/24/2013/24-25) Jamal went in the room and got it. Jamal came out of Brown’s room

with the gun; it was black with a silver stripe at the top, When everyone had their hoodies

on, Jamal had Brown’s gun, and Ariel’s gun was on his waist, Silva, Karon, Jamal and Ariel

left Brown’s house and went downstairs. Brown remained, as did Doby and Hill. At

Silva’s car, Karon-asked Silva to take him to buy a cigar, and Silva took Karon to Store 24.

From Store 24, Silva and Karon went back to Brown’s house to pick up Ariel and Jamal, but

when Silva got there, they weren’t there anymore. (Tr. 6/24/2013/24-27) Subsequently, they

appeared outside Brown’s apartment and got in Silva’s car. Silva drove Karon, Jamal and

Ariel; Jamal directed Silva to a side street; on that street was a business where cars were sold

and fixed. Silva pulled over to the left, the wrong side of the street, then Karon and Ariel

told him to “wait right here and they'll be right back.” Jamal, Ariel and Karon got out of the

17

car and “went to the right like through a driveway, into another driveway type of area”, then

Silva didn’t see them; he stayed in the car and waited. (6/24/2013/27-29) Silva waited for 3

or 4 minutes before Karon came out and asked Silva if he had seen Jamal and Ariel; Silva

responded, “They were with you.” Karon said, “Once we got in the house, we went our

separate ways.” Then Karon told Silva to turn the car around, which Silva did. The auto

place was on Silva’s right. Karon got in the passenger seat. (Tr. 6/24/2013/30) Silva and.

Karon were in the car for 3 to 4 minutes before Jamal and Atiel jumped back in. (Tr.

6/24/2013/30-31) Over defendant’s objection, Silva further testified:

When I was driving back to Timothy’s house, Karon asked Jamal and Ariel if they

got anything, and they both said, no. And then Karon was like, “What the fuck do

you mean you didn’t get nothing?”

They were like, “We didn’t get nothing.” So then Jamal was, you know - - I

mean, sorty - - Karon was mad. He didn’t say nothing after that. And then on the

way back he heard Jamal in the back seat moving around to see if he got shot.

(Tr. 6/24/2013/30-31) Jamal stated that Ariel was a good shot; Ariel said, “Yeah, once I seen

them jump on you, I just started shooting.” (Tr. 6/24/2013/31) Jamal said he knew that

somebody was dead. As Silva drove them back to Brown’s house, Ariel told everybody in

the car, “When we get back to Timmy’s house, don’t say nothing. Say we didn’t get

nothing.” There was conversation in the car about, “don’t talk about anything that happened”

and “what happens stays in the car”. (Tr, 6/24/2013/32, 63) They got back to Brown’s house.

Brown, Hill and Doby were in the living room when Jamal, Ariel, Karon and Silva came in,

asking them what happened; nobody said anything while Silva was there, and there was no

acting out of what happened at the house or anything fike that. (Tr. 6/24/2013/32, 63-64)

They stayed at Brown’s house for five minutes “tops”. (Tr. 6/24/2013/33)

Darien Doby testified:

18

Doby was testifying pursuant to a grant of immunity. Around 6:30 p.m. on October

22, 2009, Doby, Ariel, Giovanni, and Brown were driving around Pawtucketville, and saw

two girls walking down the street. (Tr. 6/13/2013/40-47)

The defendant objected to admission of any evidence pertaining to the incident

involving the two girls, (Tr. 6/13/2013/47-48) Over that objection, Doby further testified:

After seeing those two girls, Hernandez and Hill robbed them. Hernandez saw them,

parked on the side street, got out of the car with Hill, got a gun, went around the corner,

robbed them, and came back with two purses. Hill was wearing a red Boston jacket with tan

sleeves. (Tr. 6/13/2013/48-49) After Ariel put the guns and purses in the trunk, they went to

Simon’s, where Ariel got a jacket from Simon. After that they left with Simon in the car and

went to Dunkin Donuts on Bridge Street; Ariel and Simon left. Doby, Hill, and Brown left

Dunkin Donuts at 10:00 and went to Brown’s apartment. Ariel and Simon were in the

hallway. They all went inside. Ariel went through the purses in the kitchen. Doby, Simon,

Brown, and Hill were there. In the purses were IDs, bank cards, and money. (Tr.

6/13/2013/51-54)

The petitioner filed pretrial a Motion in Limine — Photographs of Defendant Posing

for Camera with Gun (R.A.21-22), which the court took under advisement. (Tr. 6/4/2013/25-

30) The petitioner renewed his objections to these photographs, Exhibit 5 and Exhibit 6, at

trial, and the court noted the petitioner’s rights were saved. (Tr. 6/13/2013/55-57)

Doby saw Ariel’s gun on top of the refrigerator. Exhibit 5 is a photograph of Doby,

Timmy, and Ariel, with Timmy holding his gun, and Ariel holding his gun. (R.A.23) The

court noted the petitioner’s objection to Exhibit 5. Over the petitioner’s objection, the court

admitted as Exhibit 6 a photograph of Tim with Ariel’s and Timmy’s guns (R.A.24); that was

19

the same night, a week or two before October 23. (Tr. 6/13/2013/56-59) Timothy Brown’s

gun is “the black one with the gray stripe.” (Tz. 6/13/2013/59-60)

2. Motions at the Close of Evidence

At the close of the prosecution’s evidence, petitioner Timothy Brown moved for a

required finding of not guilty on all offenses except the gun charge, and moved to strike

testimony as to statements allegedly made outside of the presence and hearing of Timothy

Brown between other members of this alleged group, as not made in furtherance of a joint

venture and not joint venture statements in the first place. ((Tr. 6/24/2013/64-65)

The Issues Raised Below

In Defendant’s Brief, docketed in the Supreme Judicial Court of Massachusetts on

October 3, 2016, with attached Defendant's Record Appendix, paper #25, Supreme Judicial

Court Docket Entries (Appendix E), at 2, the petitioner argued seven listed issues, including:

(1) Whether the defendant’s two convictions of first degree felony murder and conviction of

home invasion must be reversed because the evidence was insufficient for the jury to find

beyond a reasonable doubt that the defendant was guilty as a joint venturer in an attempted

armed robbery or home invasion; (2) Whether the trial judge’s jury instructions

impermissibly reduced the prosecution’s burden of proving beyond a reasonable doubt every

fact necessary to convict, requiring reversal; (3) Whether the defendant’s convictions must be

reversed because the prosecutor made improper and highly prejudicial remarks

mischaracterizing and misstating the evidence during the Commonwealth’s opening

statement and closing argument, by representing the evidence falsely as indicating that the

defendant planned and executed attempted armed robbery and home invasion, where the

20

evidence indicated no such conduct; (4) Whether the trial judge abused her discretion by

admitting over defendant’s objection prior bad act evidence of (a) an alleged armed robbery

by Ariel Hernandez and Giovanni Hill on two women occurring on October 22, 2009; (b) a

photograph of the defendant posing with codefendants while holding guns; and/or (c) a

photograph of the defendant holding guns, requiring reversal; (5) Whether the trial judge

violated the 6" and 14% Amendments, requiring reversal, by indicating to prospective jurors

that they could not be fair and impartial jurors if they had any doubt regarding the concept of

aiding and abetting; (6) Whether the common law felony murder rule is fundamentally unjust

and should be abrogated, requiring reversal of the defendant’s convictions of first degree

murder; and (7) Whether the defendant’s convictions of first degree felony murder should be

reversed pursuant to G. L. c. 278, § 33E, as being against the weight of the evidence.

In Commonwealth v. Brown, 477 Mass. 805, 807 (2017) (Appendix A), the Supreme

Judicial Court of Massachusetts affirmed the defendant’s convictions, but reduced the

defendant’s two first degree felony murder convictions to second degree murder, pursuant to

G. L. c. 278, § 33E. In Brown, supra, the Supreme Judicial Court of Massachusetts

referenced “two principles of law on which our common law of felony-murder liability rests

that we reject elsewhere in our criminal jurisprudence: [(1)] vicarious substantive criminal

liability for every act committed by a joint venturer, and [(2)] the conclusive presumption of

malice from the intent to commit a dangerous felony,” Commonwealth v. Brown, supra, 477

Mass. at 832, and with respect to those two principles the Supreme Judicial Court of

Massachusetts announced the following new rule of law:

It is time for us to eliminate the last vestige of these two abandoned principles and

end their application in our common law of felony-murder. Doing so means that

criminal liability for murder in the first or second degree will be predicated on

21

proof that the defendant acted with malice or shared the intent of a joint

yenturer 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 (emphasis

added).

Commonwealth vy. Brown, supra, 477 Mass. at 832. The Supreme Judicial Court of

Massachusetts ordered that the above-mentioned new rule (that “a defendant may not be

convicted of murder without proof of one of the three prongs of malice”) was to be applied

prospectively and not retroactively (not even to the pending case of Mr. Brown). Id., 477

Mass. at 807. The Supreme Judicial Court also reduced the defendant’s two first degree

felony murder convictions to second degree murder, pursuant to G. L. c. 278, § 33E.

In response, on October 2, 2017, the petitioner timely filed in the Supreme Judicial

Court of Massachusetts, pursuant to Mass. R. App. P. 27(a), his Petition for Rehearing

(Appendix B), in which the petitioner argued that the above-mentioned new rule should be

applied retroactively to petitionet’s case because (1) the petitioner’s case was still pending on

7 Tn Massachusetts,

It is well established that to convict a defendant of murder in the first or second

degree, a jury must find that the defendant formed the mens tea of malice

aforethought. Commonwealth v. Sires, 413 Mass. 292, 296, 596 N.E.2d 1018 (1992)

(“The presence of malice is what makes an unlawful killing murder”). Without

malice, an unlawful killing can be no more than manslaughter. Id.

Commonwealth v. Judge, 420 Mass. 433, 437, 650 N.E.2d 1242 (1995),

The definition of malice aforethought, as set forth in Commonwealth v. Grey, 399

Mass. 469, 470 n. 1, 505 N.E.2d 171 (1987), and its progeny, has three “prongs:” (1)

specific intent to cause death; (2) specific intent to cause grievous bodily harm, or (3)

knowledge of a reasonably prudent person that, in the circumstances known to the

defendant, the defendant’s act was very likely to cause death.

Commonwealth v. Sanna, 424 Mass. 92, 101 n. 13, 674 N.E.2d 1067 (1997).

22

direct review; (2) the new rule is substantive as it adds the element of actual malice to the

homicide crimes as to which the defendant was convicted in this case, and (3) the new rule is

also a watershed rule of criminal procedure implicating the fundamental fairness and

accuracy of the criminal proceeding in that the new rule precludes the use of the

presumption® of constructive malice to convict an individual of murder. Petition for

Rehearing (Appendix B), at 1-3 (citing Whorton v. Bockting, 549 U.S. 406, 416 (2007)

(construing Teague v. Lane, 489 U.S. 288 (1989) and citing Griffith v. Kentucky, 479 U.S,

314 (1987) and quoting Saffle v. Parks, 494 U.S. 484, 495 (1990) (quoting Teague v. Lane,

supra, 489 U.S. at 311); citing accord Commonwealth v, Bray, 407 Mass. 296, 303, 553

N.E.2d 538 (1990) (quoting Teague v. Lane, supra, 489 U.S. at 315, 313), 3 ». 3 (citing In re

Winship, 397 U.S. 358, 358-364 (1970)). In his Petition for Rehearing (Appendix B), the

petitioner also argued that retroactive application of the new rule to Timothy Brown in this

case is also supported by People v, Jean-Baptiste, 11 N.Y.3d 539 (2008), in which the mental

state requirement of a homicide crime had been changed by the case of People v. Feingold, 7

N.Y.3d 288 (2006), while Jean-Baptiste, supra, was pending on direct review, and the new

rule of Feingold was applied in Jean-Baptiste, supra, because a conclusion that the new rule

was not retroactive “would result in a person’s guilt even though one of the elements of the

crime had not been established.’” Jean-Baptiste, supra, 11 N.¥.3d at 542 (quoting and

applying People v. Hill, 85 N.Y.2d 256 (1995)). In his Petition for Rehearing (Appendix B),

8 The existence of a presumption is a matter of procedure. See In re Winship, 397 U.S. 358,

358-364 (1970), in which the U.S. Supreme Court noted the principle that the presumption of

innocence rests on the Fourteenth Amendment Due Process Clause, and its requirement of

proof beyond a reasonable doubt of every fact necessary to convict. Id.

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