COMMONWEALTH v. HART (2025)

The defendant, Joshua Hart, and his girlfriend entered the home of an elderly couple, Thomas Harty and Joanna Fisher, stabbed and suffocated the two victims, stole their valuables, and fled the Commonwealth in the victims’ car.¹ Harty died immediately. Fisher, a seventy-seven year old woman who was nonambulatory and a full-time wheelchair user, initially survived the assault but later succumbed to her injuries; the cause of death was complications from multiple stab wounds to her ears, neck, left flank, and chest. In Commonwealth v. Hart, 493 Mass. 130, 222 N.E.3d 455 (2023), we affirmed the defendant's convictions of, inter alia, murder in the first degree for the killing of each victim; and as to Fisher, we also affirmed the defendant's conviction of attempted murder. Id. at 131, 222 N.E.3d 455.

In connection with our G. L. c. 278, § 33E, review, we noted that the jury instruction for the charge of attempted murder erroneously included the failure to complete the murder as an element of the offense.² See Hart, 493 Mass. at 147 n.9, 222 N.E.3d 455, citing Commonwealth v. LaBrie, 473 Mass. 754, 765, 46 N.E.3d 519 (2016) (“[N]onachievement of murder is not an element of attempted murder”). As a result, the jury found that the defendant engaged in conduct that did not result in Fisher's death for purposes of the attempted murder charge but also found that the defendant engaged in conduct that resulted in Fisher's death on the charge of murder in the first degree. We raised the question whether these were “legally inconsistent verdicts” such that both “must be set aside.” Hart, supra, quoting Commonwealth v. Resende, 476 Mass. 141, 147, 65 N.E.3d 1148 (2017). To allow the defendant the benefit of avoiding “potential constraints involving gatekeeper petitions,” we permitted him the option to raise the issue with this court in the first instance. Hart, supra.

The defendant did so, filing a motion to vacate his convictions of murder in the first degree and attempted murder as legally inconsistent; in turn, we transferred the motion to the Superior Court for consideration of the motion as well as the following specific, related questions: first, whether the “acts providing evidence of attempted murder of Fisher [were] sufficiently separate and distinct such that the jury could have found the defendant guilty of attempted murder in connection with one act (or set of acts) and [murder in the first degree] in connection with another act (or set of acts), depending on its determination regarding which acts caused Fisher's death”; and second, if the jury could so find, whether the defendant “receive[d] adequate notice of these alternate theories.”³ In a thorough, well-reasoned opinion, the motion judge, who was also the trial judge, answered “yes” to both questions and denied the defendant's motion. The defendant timely appealed. We affirm.

1. Discussion. a. Standard of review. The defendant did not object to the erroneous jury instruction for attempted murder. Accordingly, “we review any error for a substantial likelihood of a miscarriage of justice.” Commonwealth v. Andre, 484 Mass. 403, 416, 142 N.E.3d 60 (2020). See Commonwealth v. Doughty, 491 Mass. 788, 802-803, 207 N.E.3d 513 (2023). As we previously indicated, to assess whether the erroneous jury instruction created a substantial likelihood of a miscarriage of justice, we consider whether the verdicts were legally inconsistent, and if not, we next examine whether the defendant was provided with sufficient notice of the Commonwealth's theories as to each offense. We review the legal question whether the verdicts were legally inconsistent de novo. Commonwealth v. Rodriguez, 476 Mass. 367, 369, 68 N.E.3d 635 (2017). See, e.g., Resende, 476 Mass. at 146-149, 65 N.E.3d 1148; Commonwealth v. Medeiros, 456 Mass. 52, 56-60, 921 N.E.2d 98 (2010).

b. Legally inconsistent verdicts. The “breed of ‘inconsistent’ verdicts which is not allowed to stand under our cases is small indeed.” Commonwealth v. Scott, 355 Mass. 471, 475, 245 N.E.2d 415 (1969). Relevant to our analysis, we have concluded that “ ‘[i]n limited circumstances,’ ” Resende, 476 Mass. at 147, 65 N.E.3d 1148, quoting Medeiros, 456 Mass. at 58, 921 N.E.2d 98, where two verdicts returned by the same jury are “impossible at law,”⁴ Commonwealth v. Sherry, 386 Mass. 682, 698, 437 N.E.2d 224 (1982), they each must be set aside, Resende, supra.

Such legally inconsistent verdicts involve “mutually exclusive crimes, where it is impossible for the Commonwealth to prove the elements of both offenses with respect to a particular defendant.” Commonwealth v. Andrade, 488 Mass. 522, 527, 174 N.E.3d 281 (2021), quoting Resende, 476 Mass. at 147, 65 N.E.3d 1148. See, e.g., Medeiros, 456 Mass. at 59-60, 921 N.E.2d 98 (reversing one defendant's conviction of aggravated rape by joint enterprise because joint venture requires “united act of two or more individuals,” and defendant's only coventurer was acquitted in same jury trial); Commonwealth v. Benesch, 290 Mass. 125, 135-137, 194 N.E. 905 (1935) (reversing defendant's conspiracy conviction where evidence at trial was insufficient to show that coconspirators shared necessary criminal intent, because conspiracy necessarily requires more than one actor); Commonwealth v. Slate, 11 Gray 60, 63, 77 Mass. 60 (1858) (noting that reversal is warranted in prosecution for conspiracy or rioting where, in same jury trial, one defendant was convicted but coventurer was acquitted, because conspiracy and rioting require “united act of two or more individuals”).

In these rare cases, we are “sufficiently troubled” by the legal inconsistency of the verdicts that the general rationale for restraint, see note 4, supra, “is counteracted by the concern that the jury may have fundamentally misunderstood the nature of the crime charged and convicted the defendant even though the Commonwealth did not prove an essential element of the crime beyond a reasonable doubt.” Medeiros, 456 Mass. at 58-59, 921 N.E.2d 98.

i. Separate and distinct acts. In this case, we previously identified that, with regard to Fisher, the jury verdicts for attempted murder and murder in the first degree might be legally inconsistent if, because of the erroneous jury instruction, the jury found that the same act (or set of acts) both did not result in Fisher's death for purposes of the attempted murder charge, yet did result in Fisher's death for purposes of the charge of murder in the first degree. See Resende, 476 Mass. at 147, 65 N.E.3d 1148 (observing that verdicts are legally inconsistent where it is impossible to prove elements of both offenses). If, on the other hand, the jury were presented with evidence from which they could reasonably find one act (or set of acts) for attempted murder that did not result in the victim's death, and another, separate and distinct act (or set of acts) that did, then the verdicts are not inconsistent and may stand “provided there is sufficient evidence to support them.” Medeiros, 456 Mass. at 57-58, 921 N.E.2d 98.

We agree with the motion judge that this case falls within the latter scenario. Specifically, the jury could have found that the defendant attempted but failed to kill Fisher by means of smothering her; and the jury could have found that the defendant succeeded in killing Fisher, either by his own acts or as a coventurer with his girlfriend, by stabbing her multiple times in her ears, neck, left flank, and chest.

With respect to the attempted murder charge, the jury heard evidence that the defendant attempted to suffocate Fisher by smothering her with pillows, but that the attempt failed to kill her. In his statement to police officers, the defendant said:

“I tried to do the thing with the pillow over her, but I couldn't do it. She was too frail. I just couldn't do it. It was too wrong. Just everything wrong ․ That's why there was three different pillows there, ‘cause I kept starting and I couldn't do it.”

Fisher's nurse, who discovered Fisher the morning after the assault by the defendant and his girlfriend, also testified that Fisher, still in an excited state, told her that “they tried to kill her,” “they kept putting a pillow over her face and tried to smother her,” but she was “tough” and survived the attempt. Hart, 493 Mass. at 132, 222 N.E.3d 455.⁵

With respect to the murder charge, the jury heard evidence that the defendant and his coventurer stabbed Fisher multiple times in her ears, neck, left flank, and chest, and that these injuries caused Fisher's death. In his statements to police, the defendant recalled stabbing Fisher “a couple more times” and “more than once” in “her right [hip].”⁶

Moreover, the jury heard the testimony of the Commonwealth's medical experts, a trauma surgeon and a medical examiner, who described the multiple stab wounds that caused Fisher's death. Describing Fisher's injuries upon her intake at the hospital, the trauma surgeon recalled that “[s]he had a stab wound to the left flank, which penetrated the chest cavity”; “a stab wound to both sides of her neck”; and “stab wounds or slash wounds to both ears.” The medical examiner similarly observed a “sharp-force injury that was on [Fisher's] left chest,” as well as a “significant amount of fluid in both chest cavities,” injuries that indicated the type of “complications following multiple sharp-force injuries involving right and left ear and neck and left flank, with penetration of left chest,” that caused her death.⁷

In sum, the jury heard evidence of the defendant's attempt to smother Fisher with pillows, which did not result in her death, and of the multiple stabbings to her ears, neck, side, and chest, which did.⁸ Based on this evidence of these separate and distinct acts, we agree with the motion judge that the verdicts of guilty of attempted murder and murder in the first degree are not legally inconsistent. We therefore are not faced here with the rare “breed” of cases requiring judicial intervention to set aside the verdicts. Scott, 355 Mass. at 475, 245 N.E.2d 415.

ii. Continuing course of conduct. On appeal, the defendant contends that the aforementioned acts -- smothering Fisher with pillows and inflicting multiple stab wounds throughout her body -- were not separate and distinct; he maintains that the acts comprised one continuous criminal transaction and that therefore the jury could not have found that some acts resulted in a failed attempt to murder while others resulted in murder. Because the acts here -- smothering on the one hand, and multiple stabbings of the victim's ears, neck, side, and chest, on the other -- were not “bound up with and necessary to each other,” we disagree. Commonwealth v. Dykens, 473 Mass. 635, 645, 45 N.E.3d 580 (2016).

Our decision in Dykens informs our analysis. There, the defendant attempted to burglarize the same home at approximately the same time through three different access points: a window on the second floor next to which he placed a ladder; a window on the first floor from which he removed a screen; and a sliding glass door, which he shattered with a rock. See Dykens, 473 Mass. at 640, 45 N.E.3d 580. He was convicted of three counts of attempted unarmed burglary. Id. at 635, 45 N.E.3d 580. On appeal, the defendant contended that the convictions were duplicative in violation of double jeopardy principles because the three acts occurred in geographic and temporal proximity and thus constituted a “single continuing offense.” Id. at 639, 45 N.E.3d 580.

We rejected the argument, noting that each attempt stood on its own. Id. at 641-642, 45 N.E.3d 580. We reasoned that the Legislature “surely did not intend to reward” a defendant for trying once, failing, and then trying again. Id. at 644, 45 N.E.3d 580. We distinguished the defendant's three separate attempts from the hypothetical situation where a defendant placed a ladder alongside a window, removed the screen from the same window, and then used a rock to break that same window. Id. at 642, 45 N.E.3d 580. In the latter circumstance, each act would be “bound up with and necessary to” the completion of the single crime and thus would constitute one act of attempted burglary. Id. See, e.g., Commonwealth v. Howze, 58 Mass. App. Ct. 147, 153, 788 N.E.2d 586 (2003), overruled on other grounds by Commonwealth v. Kelly, 470 Mass. 682, 700-701, 25 N.E.3d 288 (2015) (holding that where defendant was convicted of indecent assault and battery on child and rape, “the act of removing the victim's clothing was sufficiently bound up with and necessary to the act of penetration that due process [forbade] separating the conduct into discrete units for prosecution”).

By contrast, each of the Dykens defendant's three overt acts “constitute[d] an independent act,” warranting the three charges and convictions of attempt. Dykens, 473 Mass. at 644, 45 N.E.3d 580. Similarly, here, the defendant's acts -- smothering Fisher with pillows and the multiple stabbings -- constituted independent acts that were not “bound up with and necessary to each other.” Id. at 645, 45 N.E.3d 580. The jury were warranted in treating independently the defendant's acts that did not result in Fisher's killing from those that did.

iii. Speculation. The defendant's next contention, that the record is unclear whether the jury relied upon the same acts for attempt as they did for murder, fares no better. The trial judge instructed the jury that to prove the defendant guilty of murder in the first degree, the Commonwealth had to prove, inter alia, that the defendant's act “result[ed] in [Fisher's] death.” As mentioned supra, the trial judge also (erroneously) instructed the jury that to prove the defendant guilty of attempted murder, the Commonwealth had to prove, inter alia, “that the defendant's act did not result in [Fisher's death]” (emphasis added). Because “[w]e presume that the jury followed the judge's instructions” (quotation and citation omitted), Commonwealth v. Lowery, 487 Mass. 851, 868, 170 N.E.3d 690 (2021), we conclude that in finding the defendant guilty of both attempted murder and murder in the first degree, the jury necessarily found that the acts comprising attempt “did not result in” Fisher's death.

As the evidence shows, only some of the defendant's acts fit that description -- namely, his attempt to smother Fisher with pillows. Thus, the jury did not convict the defendant for the attempted murder charge and the charge of murder in the first degree based on the same acts.

c. Notice. We next examine whether the defendant received notice as to the acts relevant for each conviction; we agree with the motion judge that he did. The indictment for attempted murder alleged that the defendant “did attempt to commit murder by cutting the throat of and/or ․ attempting to smother another person, [Fisher].” Thus, the defendant was on notice from the onset that the attempted murder charge was based on his acts of smothering Fisher with pillows. The defendant also was obviously aware that during his police interviews he stated that he had attempted, unsuccessfully, to kill Fisher by smothering her with pillows.

The defendant also had notice that the charge of murder in the first degree was predicated on his and his girlfriend's separate acts of stabbing the victim multiple times. The murder indictment, while not expressly referencing the stabbings, charged that the defendant “did assault and beat Joanna Fisher with intent to murder her and by such assault and beating did kill and murder [her].” Moreover, the defendant was aware of his own statements to officers acknowledging that he stabbed Fisher multiple times. And the defendant received the grand jury minutes and was aware of the medical examiner's opinion as to the cause of death. The defendant did not seek a bill of particulars or file a motion to dismiss, which was further indication that the defendant understood the basis of the charges against him. See Commonwealth v. Martino, 412 Mass. 267, 279 n.8, 588 N.E.2d 651 (1992). We therefore agree with the motion judge that the defendant received adequate notice.

In sum, no substantial likelihood of a miscarriage of justice stemmed from the erroneous jury instruction. The defendant's convictions are not legally inconsistent because the evidence before the jury was sufficient to show separate and distinct acts underpinning each conviction, and the defendant received adequate notice of the acts relevant for each conviction.

2. Conclusion. We affirm the order denying the defendant's motion to vacate his convictions of murder in the first degree and attempted murder.

So ordered.

FOOTNOTES

1.   We recite the facts relevant to the limited issues raised on appeal. For a more fulsome recitation, see Commonwealth v. Hart, 493 Mass. 130, 131-134, 222 N.E.3d 455 (2023).

2.   The trial judge instructed the jury as follows:“In order to prove the defendant guilty of an attempt to commit the murder, the Commonwealth must prove beyond a reasonable doubt each of the three essential elements of that crime and they are: [f]irst, that the defendant had the specific intent to commit the crime of the murder of Joanna Fisher; [second], that the defendant took an overt act toward committing that crime which was part of carrying out the crime and came reasonably close to actually carrying out the crime; and, third, that the defendant's act did not result in the completed crime” (emphasis added).

3.   Alternatively, if the answer to the first question was “no,” we asked the judge to consider the appropriate remedy. Because the answer to the first question was “yes,” the judge did not consider this question.

4.   By contrast, “[t]he rule is well established in criminal cases that mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury.” Medeiros, 456 Mass. at 57, 921 N.E.2d 98, quoting Scott, 355 Mass. at 475, 245 N.E.2d 415. See Resende, 476 Mass. at 147, 65 N.E.3d 1148. When considered together, these “factually inconsistent” verdicts “suggest inconsistent interpretations of the evidence presented at trial.” Commonwealth v. Andrade, 488 Mass. 522, 527, 174 N.E.3d 281 (2021), quoting Resende, supra. We nonetheless leave such factually inconsistent verdicts undisturbed. See, e.g., Commonwealth v. Hamilton, 411 Mass. 313, 323-324, 582 N.E.2d 929 (1991) (declining to disturb guilty verdict of armed robbery by means of shotgun where same jury acquitted defendant of carrying shotgun); Commonwealth v. Jones, 403 Mass. 279, 290, 526 N.E.2d 1288 (1988) (declining to disturb verdict where defendant and codefendant were charged with committing single crime and only defendant was convicted following separate trials); Commonwealth v. Connearney, 359 Mass. 200, 202-203, 268 N.E.2d 662 (1971) (declining to disturb verdict where two defendants were tried together for committing same crime and only one was convicted); Scott, supra (declining to disturb robbery conviction despite inconsistency with same jury's acquittal of defendant on felony-murder for killing that occurred during robbery).The rule against setting aside factually inconsistent verdicts is based, in part, on the recognition that “there are ‘any number of factors having nothing to do with the defendant's actual guilt’ that can drive an acquittal,” such as compassion or prejudice, and that the prosecution cannot appeal from an acquittal. Medeiros, 456 Mass. at 57, 921 N.E.2d 98, quoting Commonwealth v. Cerveny, 387 Mass. 280, 285, 439 N.E.2d 754 (1982). See also United States v. Powell, 469 U.S. 57, 65, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (“Inconsistent verdicts therefore present a situation where ‘error,’ in the sense that the jury [have] not followed the court's instructions, most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, and the fact that the Government is precluded from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course”).

5.   The Commonwealth's closing argument repeatedly referenced the defendant's failed attempts to kill Fisher by smothering. For example, the prosecutor described that the defendant “attempted to ․ suffocate[ ] [Fisher] on the ground”; stated that the defendant left Fisher “after attempting with his own body to kill her by ․ putting a pillow over her face”; and emphasized that, even “know[ing that he] attempted to suffocate her, nevertheless, the defendant stands on her chest and attempts with pillows to kill her, as well.”

6.   The defendant was also liable for any stab wounds inflicted by his coventurer. See Commonwealth v. Gunter, 427 Mass. 259, 269, 692 N.E.2d 515 (1998), S.C., 456 Mass. 1017, 924 N.E.2d 687 (2010) and 459 Mass. 480, 945 N.E.2d 386, cert. denied, 565 U.S. 868, 132 S.Ct. 218, 181 L.Ed.2d 119 (2011) (defendant liable for coventurers’ acts where he “shared the intent of his coventurers to commit the underlying crime, and ․ he intended for those crimes to occur” [quotation omitted]). See also Commonwealth v. O'Brien, 494 Mass. 288, 299 n.13, 236 N.E.3d 115 (2024), quoting Commonwealth v. Semedo, 422 Mass. 716, 719, 665 N.E.2d 638 (1996) (“Murder in the first degree by joint venture requires proof that ‘the defendant was present at the scene of the crime, with knowledge that another intended to commit a crime, and by agreement was willing and available to help the other if necessary ․ [and] that the defendant shared with the principal the mental state required for the crime of murder’ ”).

7.   The Commonwealth notes that the trauma surgeon also testified that Fisher suffered fractured ribs, eventually causing respiratory failure. As the Commonwealth notes, however, the jury could conclude that the fractured ribs were not caused by the defendant's attempt to smother Fisher.

8.   The defendant contends that the medical experts’ failure to focus on smothering as causing Fisher's death suggests that smothering was not separate and distinct from the defendant's other conduct. To the contrary, the experts’ identification of the multiple stabbings as the cause of Fisher's death confirms what the defendant's own statements and those of Fisher established -- that the defendant's attempts to suffocate Fisher by smothering her did not cause her death. As discussed infra, smothering Fisher was not “bound up with and necessary” to the stabbings. See Commonwealth v. Dykens, 473 Mass. 635, 645, 45 N.E.3d 580 (2016) (rejecting argument that three independent attempts to burglarize were not separate and distinct despite geographic and temporal proximity).

WENDLANDT, J.