-: SJC-12836, Commonwealth versus Terrence Tyler.
-: Okay, Attorney Reidy. -: Morning, your honors.
May I please the court, my name is James Reidy,
and I represent the defendant, Terrence Tyler.
Mr. Tyler participated in an attempted unarmed robbery
that led to the shooting death of Wilner Parisse.
As Tyler was not the shooter
and there was no evidence presented of malice,
the Commonwealth proceeded under felony murder theory.
The central question at trial was whether Tyler acted
with a conscious disregard for the risk to human life.
In other words, the question was whether the robbery
was planned in a way that ignored the likelihood
that death would result.
-: You didn't bring an insufficiency
of evidence claim on that.
-: I did not because I think clearly,
the jury could have made that conclusion.
However, given the jury instruction on conscious disregard,
which provided the jury both an option to convict Mr. Tyler
under a theory that only satisfies involuntary manslaughter
as well as satisfies the conscious disregard standard,
I don't think this court can draw anything
from the jury's conclusion that he acted
with a conscious disregard.
-: Well, you obviously fault the model instruction.
The judge followed the model instruction.
-: Correct. -: on conscious disregard,
and one thing that permeates your appeal
is kind of a blurring of the lines
between the necessity of an involuntary manslaughter
and the applicability of involuntary manslaughter
in a felony murder case and this jury instruction.
Aren't these separate inquiries?
-: Well, so they are,
but I think that they have certainly overlapping themes
and overlapping questions, right?
For the model jury instruction,
if it allowed the jury to make a conclusion
that conscious disregard is satisfied
by an act that's only dangerous to life,
that could satisfy the involuntary manslaughter standard,
which describes dangerous to life
in the sense of a substantial risk of death.
Now, obviously- -: And we distinguish
between them by degrees of harm, correct?
-: Correct. The risk is the distinguishing.
Substantial risk of death would be involuntary manslaughter.
Likelihood of death would be conscious disregard.
Given the facts of the case, given what the plan was,
and there wasn't much of a question about what the plan was-
-: That's why I opened with sufficiency, right?
And that was what basically was argued,
and the lawyer obviously did a good job
because convinced them that he didn't have knowledge
of the firearm. -: Correct.
-: Right, so yeah, to me, it was a close case, frankly,
-: I think- -: Actually,
it's a very close case. -: It's a very close case,
but I think it would be, frankly,
a little disingenuous to argue that there wasn't sufficiency
of the evidence in the sense that I think that the jury
could have had a conclusion based on, I think,
what the Commonwealth lays out in its brief
that the plan is involved a drug dealer, et cetera.
But the jury also could've reached the opposite conclusion,
and so that's why it's not a sufficiency
of the evidence argument.
It's more that the jury instruction didn't provide the jury
with enough of a narrowing to ensure
that jury what came to the same conclusion.
-: What would a better jury instruction say?
-: Dangerous to life and a likelihood to cause death.
-: Dangerous to life. -: It's the likelihood of death
that is the distinguishing factor.
The fact that the court uses the word or,
the model jury instruction uses the word or signals
to the jury that that dangerous to life is something
that is less than a likelihood of death.
-: Dangerous to life, likely to cause death is-
-: Dangerous to life and likely to cause death.
-: And. -: And.
That's exactly what the court said in Matchett.
It's what came from Serne, which is that English case,
which is sort of the modern foundation of felony murder,
which said that it has to be dangerous to life
and likely in itself to cause death.
-: If that's what it said in Matchett,
did you know how that came to be in the jury instructions?
-: I don't.
There's no footnote in the jury instruction
that says we're getting the language from here.
It is simply says likely dangerous to life
or likely to cause death.
And in my research, I couldn't find,
there's no really discussion of it,
and I'd suggest that that is probably because,
anecdotally, most felony murder cases involve armed robbery
or a handgun or an act that is inherently dangerous,
and where an act is inherently dangerous,
conscious disregard is presumed.
It's not a question really for the jury. It's by law.
There's a conscious disregard. -: So post-Matchett,
you tried to track this down as to how this went.
-: I did, and I couldn't find anything.
I didn't see anything
in the model homicide instructions prior to 2013.
The model jury instructions
after 2013 tracked that language.
-: And they only cite Matchett, I assume.
-: There's no citation at all in the,
at least in 2013, I didn't find anything in,
at least off the top of my head
'cause I think it would've gone
down that rabbit hole if I did, and I did not.
I couldn't track where that came from.
-: Can I ask you about the involuntary manslaughter?
James: Of course.
-: The general rule as you recognize
is that you don't get involuntary manslaughter
in a felony murder case, period.
-: Correct. -: Then there's Donovan
and Campbell, which are the only exceptions, correct?
-: Correct. -: In your reply brief,
you circled back to the inherently dangerous language.
-: Correct. -: But I don't think that's
appropriate because you have to deal
with constructive malice in felony murder,
and when I read Donovan and Campbell,
they're all instances where the felonious intent
could be something different.
In this case,
you agree that the felonious intent was to steal, correct?
-: Yes, based upon the fact
that defense counsel took that position.
-: Well, it'd be hard not to. -: It'd be hard not to. Agreed.
-: Given it was his idea. -: Agreed, agreed.
-: So how do you get around the fact
that you have a felonious intent
and the only felonious intent in this case
that matches the predicate felony,
and in Campbell and in Donovan,
there was evidence of different intent?
-: Well, let's go back to what Donovan was about.
So when Donovan, the defendant was charged
under two theories, was charged under felony murder
and was charged under conscious disregard,
and it proceeded to trial under both of those theories.
The court, upon a motion of the defendant,
directed out the deliberate premeditation theory.
So it only went forward under a felony murder theory.
However, prior to directing that out,
defense counsel had asked
for an involuntary manslaughter instruction
under the theory of voluntary manslaughter,
which was denied, and didn't matter at the time
when it came to appeal
because the deliberate premeditation was directed out.
The defendant specifically argued
that involuntary manslaughter
is a lesser included offense of felony murder,
and that's what the court decided.
The court said specifically,
"We are deciding this as a lesser included offense,"
which is why they
applied the substantial likelihood standard
because it wasn't a preserved error
because counsel at trial only asked
for the involuntary manslaughter
as a voluntary manslaughter
under the voluntary manslaughter theory.
It then said that where there is a question
of whether the defendant acted with a conscious disregard,
involuntary manslaughter can be a lesser included offense
of felony murder. -: No.
It says (chuckles) when the defendant acted without malice,
and what they should've said is constructive malice,
but he acts with wanton and reckless disregard.
You're reading in unfairly, I think,
the conscious disregard standard.
The facts in that case
could have shown the defendant punched the victim.
The defendant didn't know the juvenile defendant was armed,
which is your case, basically, but then importantly,
the defendant didn't know of robbery plans,
and the defendant didn't participate in a robbery.
That's not your case. -: Agreed, that's not my case.
However, I think that there is still a question of-
-: On these facts,
he could have been acquitted of felony murder
because he did not share the co-defendant's intent
to rob and could've been convicted.
That's what the court held.
So the felonious intent on the facts
could have been different as opposed to these facts.
-: But if we decide that,
it's the felonious intent that matters,
and if you have a felonious intent
and a death occurs during the commission
of that felonious intent, it is automatically felony murder.
-: Correct. No, that's why you don't get the instruction.
That's the general rule. -: Well-
-: You're trying to read out the general rule,
and then to think it cites Campbell.
Campbell, you've read Campbell.
-: Campbell's like crazy, the factual, you know,
and they said, "Hey, as unbelievable as the defendant is,
you take him at his word,"
and the guy gets on the witness stand and says,
"Oh, I didn't rape her.
You know, she was yelling.
I put my hand on her throat, my hand slipped,
and next thing, she wasn't moving,
and then we undressed her and dumped her."
So they said, "With a predicate is assault
with intent to rape," he gives this farfetched,
but his story that it wasn't a rape.
It was actually this accident.
The court says,
"Well, his intent could have been this crazy thing,
so he gets involuntary manslaughter."
Again, no felonious intent.
-: But if we have a felonious intent,
we're essentially saying there's a bright line rule that,
if there's a felonious intent and a death occurs-
-: Yeah, the felonious intent being the predicate,
importantly the predicate felony for felony murder.
-: Correct, but there there is also a recognition
that someone can have a felonious intent but not be involved
in a plan that is likely to result in death
because we have the- -: But that's a separate thing
the government has to prove.
So the issue is whether you get involuntary manslaughter,
the whole purpose, which obviously post-Brown doesn't-
-: Right, it doesn't. -: Right, right.
-: It's an academic, well not for Mr. Tyler, but-
-: Not for Mr. Tyler. Exactly, exactly.
The point of felony murder pre-Brown
was that constructive malice takes you out of malice, right?
-: Right. -: Any of the prongs.
So therefore, we're only dealing
with what did this defendant intend
with respect to the charge felony, nothing else.
-: Well, except- -: An involuntary manslaughter,
any manslaughter negates the three prongs of malice
'cause you don't have an intent to kill, et cetera.
You have this wanton and reckless conduct.
-: Agreed.
In order to prove felony murder,
the Commonwealth must still prove conscious disregard,
obviously.
They must still prove that as I phrase a dangerous life-
-: What Matchett says is if we have someone
who's a pickpocket and they're running away
and they kill someone, we're not gonna do this.
And you're absolutely true, right,
that 90% of these cases, it's not an issue.
-: And that might be low. -: Yeah, it might be low.
You're right.
That's why- -: But frankly-
-: That's why I go to A, either sufficiency, or B, 33E.
Again, all those who said it's Mr. Tyler,
it's more of an academic question,
but I find it difficult to fathom
that there is not a lesser included of felony murder
in the sense that a death still occurs
during the commission of a felony,
but if that felony was wanton and reckless,
there was a substantial risk of death
but not a likelihood of death,
that without that likelihood of death,
the act is still unpunished,
and that's where frankly that I think Donovan
was trying to get to.
I understand the court's reading,
and I certainly don't think
that that's an inaccurate reading,
but I do think there's another-
-: The Commonwealth read it that way, too.
-: They did, but I think that- -: Your way.
-: I do think that there's another possibility
that there is something,
there can be an act that results in death
that doesn't involve a conscious disregard-
-: I do agree if it wasn't the charge predicate felony,
if it wasn't a qualifying felony.
-: I mean, any felony is a qualifying felony.
-: Well-
-: It's either first degree or second degree,
and it depends on sentence. -: You're right,
and the jury, of course, rejected the B&E.
Can you address? -: Well,
maybe they didn't even reach the B&E.
-: Well, they had-
James: 'Cause it came back first degree.
-: Right, they had it as an option. They didn't pick it.
-: Well, because the defense counsel told the jury
that he committed and attempted armed robbery,
I think, which is a fairly significant concession.
-: Yeah, I think he was putting his eggs
in the sufficiency basket, and it didn't work out.
-: So I disagree with that.
I don't think he asked for second-degree murder
if he's putting his eggs in a sufficiency basket.
He asked for straight second-degree murder,
not second-degree felony murder,
straight second-degree murder,
and that, to me, doesn't speak of a defense attorney
who has a coherent strategy that, "I'm going for it all.
I'm going for an insufficiency,
but I'm asking for a second degree."
-: Can you help me out as far as 33E goes?
-: Sure. -: How would we analyze this
under our 33E standard to get to a second degree?
-: I don't think you get to a second degree.
If involuntary manslaughter's
not a less included felony murder.
-: Right, assume that.
Then I guess you're going all for nothing, so right?
-: So that argument is based on the-
-: It's a constant with justice standard.
-: Correct. -: Right?
But assume for sake of argument that I don't agree with you
that involuntary manslaughter isn't at play.
How do I get to a second-degree constant with justice
where this was a very close case?
-: Well, I think assuming also that the court
doesn't make a decision that the jury instruction
created an issue that required a remand,
given the fact that the, and I know it's different,
but given the fact that the trial court found
that there's no second or third prong malice,
given the fact that there was no evidence
from one can even find malice,
at least as far as malice murder is concerned
under second or third prong,
and also given what this court has said
in Dawson about the validity
of an involuntary manslaughter instruction when it comes
to a death that occurs during the commission of a felony
and drawing a distinction between felony murder
and involuntary manslaughter, again,
assuming that the court comes out the Commonwealth's way
on the first argument,
the evidence of this case speaks of just a dumb decision
but not one that was either intended
or reasonably, could be concluded,
would've resulted in a death.
They were going into a house. It was a snatch and grab.
They were expecting him to be,
for lack of a better term, distracted and in a position
that he would not be able to physically react.
There's two people involved.
One grabs the marijuana, one grabs the cash,
and they're out. -: There was no evidence
that they thought he was armed as well.
-: There's no evidence that they thought he was armed.
The Commonwealth makes a lot of the fact
that he had two pit bulls, but in one,
there's not really evidence
that the defendant knew they had pit bulls.
Secondly, I think that really depends
on the perception of what pit bulls
-: And the jury- -: are.
And the jury was told the pit bulls were kept
in the room by the defense roommate said,
"We kept those pit bulls in the room
because they would be all over people when they came in
in the sense of they would be overly friendly
and really kind of annoying,"
and that's why they kept them locked up,
not because they were attack dogs.
-: And jury rejects the firearm knowledge.
-: The jury rejects the firearm ultimately.
There was no evidence
that he would've known there was a firearm.
The Commonwealth tried to make a trial to say,
"Well, look at the way that Mr. Shepherd is walking,
and that Mr. Tyler would've seen that."
Even in the video, there's no evidence that he saw it.
They're moving sort of separately. It's dark.
There is nothing in this case that speaks of
that Mr. Tyler would've had a reasonable perception-
-: We don't have Brown obviously
'cause he was there and he planned it.
He's not in the outer fringes of a conspiracy.
-: He's not in the outer fringes of the conspiracy,
and when I had the portion of the brief talking
about the retroactivity of Brown,
I was coming from the perspective
of give the defendant an opportunity
to demonstrate there is no malice,
not that there was no malice at trial
because I do think that balancing
of how the Commonwealth would've proceeded
is obviously important, but there couldn't have been.
There was no evidence of malice,
regardless of how this case proceeded based
on what the Commonwealth knew.
-: The basic position, I think,
on 33E is it's just unfair for him
to do life without parole -: It is.
-: on these facts. -: It is.
-: I mean, is that the bottom line?
-: That's the bottom line, that, on these facts,
given what he knew, given how the plan was supposed to go,
given the lack of any evidence that the victim had a weapon
or that he was not supposed to be able to react,
that this wasn't supposed to involve any sort
of confrontation whatsoever.
And while we may think that it's not the best plan,
it doesn't mean that it was a plan designed
or even would've hinted at death,
and it's fundamentally unfair for Mr. Tyler
to spend life in prison despite the fact
that Mr. Parisse tragically lost his life,
for him to spend life in prison,
to never leave those walls.
-: I should know the answer to this,
but can you tell me what happened with the co-defendant?
-: So Mr. Shepherd was surprisingly also convicted
of a felony murder with unarmed robbery
as the predicate felony.
-: In a separate trial, correct?
-: Separate trials, and that suggests,
and those courts already heard Mr. Shepherd's appeal.
I would suggest that that part of that has to do
with the defense at the second trial.
The defense at the second trial really focused on the idea
that Ms. Jones could be the shooter,
the way she was the person seen leaving.
There was a woman who screamed, et cetera.
And I'd suggest that that jury's conclusion
about Mr. Shepherd was we don't know
if it was Mr. Shepherd or Ms. Jones that was the shooter,
but regardless, they both participated
in an attempted unarmed robbery
that resulted in a death along with Mr. Tyler,
and there was no question whether Mr. Tyler was the shooter.
-: We resolved Mr. Shepherd's case?
-: No, you heard Mr. Shepherd's case
approximately six weeks ago. -: Okay.
-: Mostly that had to do with the application
of the felony murder rule and systemic racial injustice.
Justice Gaziano: Okay, all right.
-: It was tried very differently.
It was tried with the idea that it's not necessarily
that Mr. Shepherd was the shooter.
There was also evidence that Ms. Jones was the shooter,
and it suggests that's why the jury came back
with the same verdict, but they were tried very differently.
And if there are no further questions from the court,
I'd rest on the remainder of my arguments on my brief.
-: Thank you. -: Thank you.
-: Okay, Attorney Janssen. -: Good morning.
May it please the court,
Kathryn Janssen for the Commonwealth.
I'd first like to address the jury instruction
on conscious disregard,
and I think it's important to look
at what the actual standards are.
For involuntary manslaughter,
wanton and reckless conduct is a likelihood,
a high degree of likelihood a substantial harm
will result to another whereas conscious disregard
is the risk of loss of life, so-
-: You know how we got the or versus the and in Matchett?
-: I'm not totally sure.
I think in Matchett, it was just citing,
(coughs) excuse me, the principle from England
about what's necessary for conscious disregard.
I don't think it's wedded to the and language,
and I think the case law as it's developed
from Matchett talks about it being dangerous to life
and a foreseeable risk of loss of life,
and I would cite Cook 419 Mass 195 at 205 through 207.
It's a 1994 case, and that's,
again, just articulating the standard.
I think what the defense essentially trying to argue
is saying a likelihood of death.
That's essentially a third prong malice,
which is a plaintiff's substantial likelihood
of death will result.
So the degrees of risk are all different,
and this case in this court discuss that in Sneed,
Commonwealth v. Sneed.
And so I would suggest that jury instruction
with the or was appropriate.
It was this court's instruction that told judges to use.
It would've been reversible error to not use that,
and, of course, the defense attorney below
did not object to that language at all.
And I think where you have the dangerous to life
or likely to cause death,
the likely to cause death is more consistent
with the third prong malice, but dangerous to life
is another way of saying foreseeable risk of loss of life,
and therefore, I think it adequately informs the jury
of the amount of risk necessary for conscious disregard,
and it's different from wanton reckless conduct.
-: Why did your office agree in the motion for new trial
on the involuntary manslaughter lesser included?
-: Well, I think this area of law is admittedly complicated,
and I think that the Commonwealth's position on appeal
is the correct one under reading of Campbell and Donovan,
and, of course, this court under 33E is not bound.
It has to review the whole record. It's not bound obviously
by the Commonwealth's prior concessions,
I guess I would say.
And I think you hit the nail on the head
under reading of Campbell and Donovan.
There, there was evidence on the record
that the defendant intended to do something
other than a felony, and when you look at Donovan,
the language you cited, it was that the jury
could find the defendant
didn't share the requisite felonious intent,
and I think that's what we're looking at
whether involuntary manslaughter is required
or not as an instruction.
-: Tell me why this is a life without parole case.
-: Sure.
So first of all, I would argue that,
because the jury was instructed
on conscious disregard appropriately,
and I think these facts support that in that,
well, and I understand the jury did not come back
with armed robbery or armed home invasion,
but that just suggests maybe they
didn't find actual knowledge,
but it doesn't mean that they didn't find
that there was a reasonable possibility or probability
that he was aware that Shepherd was armed,
and I think the fact that-
-: Wait, wait, we got a complete rejection of that theory.
-: Well, no, complete rejection of the theory
of actual knowledge,
which is what the Commonwealth was required to prove
for the armed home invasion and armed robberies predicate.
-: I think you have an uphill battle,
at least it convinced me
Kathryn: (chuckles) Understood, your Honor.
-: that he knew a firearm was involved.
So what I have is this foolish plan to distract him.
They go in trying to get weed and money,
and then bad things happen with a guy
who thinks it's an unarmed robbery,
and if I look at people who do life without parole,
(chuckles) this doesn't match up well.
-: Well, I think when you look at the fact
that this was going to be,
you're going into a drug dealer's home late at night,
and the case law is clear that you can,
I don't wanna say assume, but there's a high likelihood
that you're gonna be met with violent resistance
in somebody's home, especially when drug dealing
is involved, and that,
although I will admit there was no evidence, I believe,
from Jones' testimony that he definitely is armed or-
-: Yeah, I mean, in Brown, these are two tough guys, right?
They both worked as bouncers,
and there's a necessity to be armed
to confront these two tough guys,
but we don't have any of that in this case, right?
-: I know- -: We have him as drug dealer.
-: I think give him as drug dealer.
I do think the fact that he has pit bulls
and say what you want about them,
I think a reasonable person and from society
might view pit bulls having a certain, almost-
-: The dog in "The Little Rascals" was a pit bull,
but that might be dating myself.
(everyone laughs)
-: But also I think you can't divorce the fact that,
and I would point to Commonwealth v. Netto,
and, of course, that was an armed robbery,
but the court also talked about unarmed robbery.
And if the defendant had gone in
with the belief that it was gonna be unarmed,
that there was more than enough
to warrant conscious disregard there,
that you're going into somebody's house late at night
and that they weren't welcome there.
I think here the fact that the defendant knew
that the plan wasn't going according to plan,
that he wasn't indisposed-
-: Aren't all the things that you're talking about now go
to whether or not a firearm would be involved?
-: Well, and I still do think, and I'm willing to say
that the jury rejected actual knowledge,
but I still think that they may have found,
based on the video evidence from 8 Carlton Street,
I can't remember the exhibit number
'cause they were different between the two trials,
I apologize, but you can see Shepherd manipulating something
in his waistband,
and you can see -: Oh wait, I'm sorry.
-: Tyler looking at him. -: Right.
So say we don't agree that the,
because the jury did not find
that he knew about the firearm,
say we don't agree with you.
Is there anything else that you can point to
that would suggest that he should get life without parole?
-: Well, I feel like the fact
that he brought another person with him,
even if, say, doesn't know about the firearm with Shepherd,
the fact that he brought another person, Shepherd,
the only reason why you would bring him
is to help meet resistance,
and I think the fact that you're, again,
going in late at night, a drug dealer,
you could assume that it might turn violent.
And I think also the fact that he or he knew that the victim
wasn't indisposed and he went in anyway
because there's evidence he was talking to Jones,
and Jones was saying, "Wait, you know,
the plan's not going according to the plan,"
and he went in anyway.
So I think those are important facts, and, again,
I understand the court's position about the firearm,
but I would say there's a distinguishing fact
about actual knowledge
and what the jury rejected actual knowledge
and maybe that they thought that he thought there
was a possibility that Shepherd might've been armed,
but I understand the court's position on that,
but that would be the Commonwealth's reading
and why that would be appropriate in this case.
Person On Radio: Head downstairs.
(people speak indistinctly)
-: Commonwealth is happy to answer any additional questions
or rest on its brief if there are none.