Opinion
13-P-1602
02-11-2015
COMMONWEALTH v. BILLEOUM PHAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Billeoum Phan, was convicted of voluntary manslaughter and firearms charges after a fight in Lowell in 2006. He argues that his motion for a required finding of not guilty should have been granted for every offense covered in the murder indictment. We affirm.
Background. On the evening of August 12, 2006, a fight erupted at a house on Royal Street in Lowell after a party. The defendant, fourteen years old at the time, was living in the first-floor apartment at least temporarily and belonged to a gang that wore red. Rival gang members, wearing blue, arrived at the party. A brawl ensued, and the defendant retreated inside his apartment. The blue gang members threw boards, rocks, and bricks into the defendant's apartment and pushed in air conditioner units. About thirty or forty people were involved in the fracas.
Once inside, the defendant retrieved a revolver and fired a single shot out of a living room window and over the heads of the people outside. The defendant then fired a second shot out of a bedroom window. The second bullet struck and killed the victim, apparently a rival gang member. A witness later testified that the defendant had stated prior to the altercation that he wanted to fight the blue gang members. The next day police arrested the defendant, who said that he hid the gun in the basement of the Royal Street house. While police were transporting him, he asked an officer whether the blue gang members had a gun. The officer did not answer.
On September 28, 2006, the defendant was indicted on charges of murder in the first degree, carrying a firearm without a license, and possession of a firearm with a defaced serial number during a felony. At trial, on December 12, 2008, the defendant moved for a required finding of not guilty on all charges. On the murder indictment, the judge allowed the motion as it pertained to murder in the first degree, but not the lesser included offenses. He also partially allowed the motion on the charge of carrying a firearm without a license because the defendant's legal residence was unclear. On December 15, 2008, a jury found the defendant guilty of voluntary manslaughter as well as the two firearms charges. He was sentenced and this appeal followed.
The defendant argues that the judge should have allowed his motion for a required finding of not guilty on the murder indictment and its lesser included aspects as he fired in self-defense.
"The only issue raised by a motion for a required finding of not guilty is whether the Commonwealth presented sufficient evidence of the defendant's guilt to submit the case to the jury. . . . [W]e consider the evidence, together with permissible inferences from that evidence, in the light most favorable to the Commonwealth and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . [W]e look only to the evidence presented by the Commonwealth, and disregard any contrary evidence presented by the defendant. Furthermore, in evaluating the sufficiency of the evidence, we resolve all issues of credibility in favor of the Commonwealth."Commonwealth v. Platt, 440 Mass. 396, 400-401 (2003) (quotations and citations omitted).
A murder indictment may result in conviction of an offense other than murder in the first degree.
"Lesser included offenses are those necessarily included in the offense as charged. . . . [M]urder in the second degree could be described as a lesser included offense of murder in the first degree. The latter is murder in the second degree with the additional aggravating factor of premeditation, extreme atrocity or cruelty, or the commission of murder in the course of the commission of a life felony. . . .
"A charge of murder properly may result in a verdict or finding of voluntary manslaughter only if it
appears from the evidence that the killing arises from a sudden transport of passion or heat of blood upon a reasonable provocation or upon sudden combat. . . . In these instances, reasonable provocation negates malice in [an] unjustified killing, warranting a verdict of manslaughter rather than murder. A verdict or finding of manslaughter depends on evidence establishing what logically may be referred to as an additional element not present in murder; that is, reasonable provocation that is accepted as sufficient in law to mitigate, but not excuse, an unlawful killing."Ariel A. v. Commonwealth, 420 Mass. 281, 285-286 (1995) (quotations and citations omitted).
Here, the judge allowed the defendant's motion as it pertained to murder in the first degree, but denied it for the lesser included offenses. There was no error. Considering the evidence in the light most favorable to the Commonwealth, see Commonwealth v. Platt, 440 Mass. at 400-401, the ultimate verdict was justified.
Witnesses testified that after the defendant fired the first shot, people outside were scrambling and running away, and not running toward the defendant or threatening the life of anyone in his apartment. A witness testified that despite the objects thrown at or into the defendant's first floor apartment, no rival gang members entered that apartment. A witness also testified that the defendant stated prior to the brawl that he wanted to fight members of the rival gang.
The jury permissibly found the defendant guilty of voluntary manslaughter as "the killing [arose] from a sudden transport of passion or heat of blood upon a reasonable provocation or upon sudden combat," and there was a "reasonable provocation that is accepted as sufficient in law to mitigate, but not excuse, an unlawful killing." Ariel A. v. Commonwealth, 420 Mass. at 285-286. The judge properly allowed the jury to consider lesser included offenses. See Commonwealth v. Platt, 440 Mass. at 400-401.
For these reasons, and for substantially those in the brief of the Commonwealth, we find no error.
Judgments affirmed.
By the Court (Cypher, Kantrowitz & Carhart, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: February 11, 2015.