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SJC-12496

COMMONWEALTH vs. JAMESON PHUON.

Middlesex. May 8, 2020. - October 19, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.1

Homicide. Firearms. Jury and Jurors. Practice, Criminal, Jury 

and jurors, Verdict, Duplicative convictions, Lesser

included offense, Capital case.

Indictments found and returned in the Superior Court 

Department on February 24, 2011.

The cases were tried before Heidi E. Brieger, J.

Theodore F. Riordan (Deborah Bates Riordan also present) 

for the defendant.

Timothy Ferriter, Assistant District Attorney, for the 

Commonwealth.

BUDD, J. Just after midnight on January 1, 2011, shots 

were fired at a New Year's Eve house party. The defendant was 

convicted of murder in the first degree of one victim, as well 

 

1 Chief Justice Gants participated in the deliberation on 

this case prior to his death.
2

as on twenty-four other indictments that included various 

firearms charges and seventeen charges related to the injuries 

he inflicted on several other victims.

On appeal, the defendant argues that he is entitled to a 

new trial on the murder charge because the verdict slip 

indicated that the jury found him guilty of both murder in the 

first degree and murder in the second degree. He also argues 

that his two convictions of possession of ammunition must be 

dismissed because they are lesser included offenses of his 

convictions of possession of a loaded firearm. Finally, the 

defendant seeks to have his murder conviction reduced or to be 

granted a new trial pursuant to G. L. c. 278, § 33E. We affirm 

the defendant's conviction of murder in the first degree and 

decline to exercise our extraordinary power under § 33E. 

However, we dismiss the convictions of possession of ammunition 

as duplicative of the convictions of possession of a loaded 

firearm.

Background. We summarize the facts as the jury could have 

found them. Late at night on December 31, 2010, the defendant 

attended a house party with two friends, Sothy Voeun and 

Sovanrathanak Binn.2 Soon after their arrival, the defendant and 

Voeun had a gang-related disagreement with one or two of the

 

2 A fourth individual who was with the group remained in the 

vehicle in which they arrived.
3

partygoers, which became physical and continued outside. Voeun 

retrieved a rifle from the vehicle in which they arrived, and he 

and the defendant took turns shooting it into the air. The 

group then left the area and drove to the home of Naroht Chan,

where they obtained a second rifle; they then returned to the 

party. Voeun and the defendant, who was wearing a face 

covering, walked to the door, each carrying a rifle. The 

defendant kicked the door in, entered, and yelled, "Don't move 

or I'll shoot." He pushed a table toward Corinna Oeur. When 

Oeur pushed the table toward the defendant, he shot her in the 

torso. The defendant also shot seven others in the room before 

leaving the scene. As the group drove away, the defendant said, 

"I think we might have got them" and "I think I just killed 

somebody."

Police responded to the scene at approximately 1:25 A.M.

Oeur, who was found unresponsive, succumbed to gunshot wounds to 

her heart and lungs. Others at the party suffered from various 

serious, but nonfatal, injuries. A search of Chan's home 

yielded two rifles, one of which was fitted with a high capacity 

magazine. Casings recovered from the scene matched casings that 

were discharged from each firearm.

At trial, the defendant argued that he had been 

misidentified. In support of that theory, he presented an
4

expert on eyewitness identification who testified as to factors 

that may render identification witnesses unreliable.

Discussion. 1. Verdict on murder charge. At the 

conclusion of their deliberations, the jury announced and 

affirmed in open court that the defendant was guilty of murder

in the first degree on the theories of deliberate premeditation 

and felony-murder. The verdict subsequently was recorded. 

While polling the jury as to the murder conviction at the 

request of trial counsel, the clerk noticed that the verdict 

slip indicated that the defendant was guilty of murder in the 

first degree as well as murder in the second degree, so the 

clerk brought the matter to the judge's attention.

In conferring with both parties outside the presence of the 

jury, the judge stated that the verdict was not inconsistent 

because the finding of guilty of murder in the second degree was 

"simply a lesser included guilty finding that is subsumed by the 

guilty in the first degree." However, she proposed to have the 

clerk continue to poll the jury to ask "how he or she finds on 

those counts." After speaking with the defendant, trial counsel 

waived further polling. The jury thereafter were discharged.

The defendant now argues that he should be given the 

benefit of what he calls an "ambiguity" in the verdict slip and 

that he is entitled either to a new trial or to a reduction in 

the murder conviction to murder in the second degree. We note 
5

that the defendant, who expressly declined the judge's offer to 

make inquiry of the jury regarding the verdict slip, contends on 

appeal that the judge should nevertheless have done so. We 

agree that the better practice would have been to make inquiry 

of the jury prior to discharging them, either by polling or 

sending them back to the jury room to resolve any questions 

about the verdict slip, if for no other reason than to foreclose 

the possibility of the issue resurfacing on appeal.3

However, as the defendant waived his opportunity to poll or 

otherwise request that the jury clarify their verdict, we 

evaluate his claim to determine whether there is a substantial 

likelihood of a miscarriage of justice. See Commonwealth v. 

Fowler, 431 Mass. 30, 34 (2000); Commonwealth v. Lawson, 425 

Mass. 528, 531 (1997). We conclude that the answer is no.

 

3 An instruction explicitly stating that the jury need not 

consider the charge of murder in the second degree if they found 

the defendant guilty of murder in the first degree might have 

helped to avoid any misunderstanding the jury may have had in 

this regard. The Model Jury Instructions on Homicide 43 (2018)

provide: "If you are unable to agree unanimously that the 

Commonwealth has met its burden to prove beyond a reasonable 

doubt any [either] of these theories of first degree murder, you 

shall consider whether the Commonwealth has proved the defendant 

guilty beyond a reasonable doubt of murder in the second 

degree." We note, however, that in explaining the different 

theories and degrees of murder, the judge correctly instructed 

the jury that they had the duty to find the defendant guilty of 

the most serious offense that the Commonwealth proved beyond a 

reasonable doubt. Later, after discussing each theory of murder

in the first degree listed on the verdict slip, the judge stated 

that murder in the second degree was a lesser included offense 

that was "another possibility."
6

The defendant relies on Commonwealth v. Dunn, 478 Mass. 

125, 137 (2017), to argue that because the jury were instructed 

to find him guilty of "the most serious offense that the 

Commonwealth has proved beyond a reasonable doubt," the fact 

that the jury indicated that the defendant was guilty of murder

in the second degree suggests that that was the highest offense 

proved. This argument is unavailing.

The jury were properly instructed on each of the three 

theories of murder in the first degree: deliberate 

premeditation, extreme atrocity or cruelty, and felony-murder. 

At the conclusion of their deliberations, they specified on the 

verdict slip that the defendant was guilty of murder in the 

first degree on two of the three theories presented to them:

deliberate premeditation and felony-murder. The mere fact that 

the jury additionally marked an "X" next to "Guilty of Lesser 

Included Offense of Murder 2nd Degree" on the verdict slip in no 

way demonstrates that murder in the second degree was the 

highest degree of guilt they found. To the contrary, it is 

clear from the verdict slip that the jury determined that murder 

in the first degree (by way of two separate theories) was the 

most serious murder offense that the Commonwealth proved beyond 

a reasonable doubt. It appears that the jury simply found the 

elements that comprise murder in the second degree in addition 

to having found the elements of murder in the first degree on 
7

the theories of premeditation and felony-murder,4 or 

alternatively, they did not find the defendant guilty of murder 

in the first degree on the theory of extreme atrocity or cruelty 

so instead found him guilty of murder in the second degree as to 

this theory.5

Moreover, in the judge's instructions, the only underlying 

felony presented to the jury for consideration with regard to 

the theory of felony-murder was armed home invasion, which is 

punishable by life imprisonment. By finding the defendant 

 

4 We note that, here, the elements of murder in the first 

degree on a theory of deliberate premeditation coincide with the 

elements of murder in the second degree. The elements of the 

murder in the first degree on a theory of deliberate 

premeditation are that (1) the defendant caused the death of the 

victim, (2) the defendant intended to kill the victim, and (3) 

the defendant acted with deliberate premeditation. The elements 

of murder in the second degree are that (1) the defendant caused 

the death of the victim and (2) the defendant intended to kill 

the victim, to cause grievous bodily harm to the victim, or to 

do an act which, in the circumstances known to the defendant, a 

reasonable person would have known created a plain and strong 

likelihood that death would result. Here, by marking that the 

defendant was guilty of murder in the first degree on a theory 

of deliberate premeditation, it is clear that the jury plainly 

found all three elements that comprise murder in the first 

degree on that theory. As the first two of those three elements 

comprise murder in the second degree, the jury appear to have 

indicated that on the verdict slip as well.

5 The elements of the murder in the first degree on a theory 

of extreme atrocity or cruelty are that (1) the defendant caused 

the death of the victim; (2) the defendant intended to cause 

grievous bodily harm to the victim, or to do an act which, in 

the circumstances known to the defendant, a reasonable person 

would have known created a plain and strong likelihood that 

death would result; and (3) the defendant acted with extreme 

atrocity or cruelty.
8

guilty on a theory of felony-murder, where this life felony was 

the only underlying felony on which such a conviction could be 

premised, the jury had to have found the defendant guilty of 

murder in the first degree. G. L. c. 265, § 1.

Even assuming, as the defendant argues, that the verdict 

slip did not clearly indicate the will of the jury, the verdict 

announced by the foreperson in open court and affirmed 

unanimously by the jury removed any doubt that it was the jury's 

intention to convict the defendant of murder in the first degree

on the theories of deliberate premeditation and felony-murder. 

See Dunn, 478 Mass. at 136, quoting Commonwealth v. Harris, 23 

Mass. App. Ct. 687, 692 (1987) ("The only verdict which can be 

received and regarded, as a complete and valid verdict of a 

jury, upon which a judgment can be rendered, is an open and 

public verdict given in and assented to in open court, as the 

unanimous act of the jury, and affirmed and entered of record,

in the presence and under the sanction of the court"); Lawrence

v. Stearns, 11 Pick. 501, 502 (1831).

Thus, although it is true that "[i]f there were any 

reasonable possibility that the jury intended the lesser 

verdict[] we would give the defendant the benefit of the lesser 

conviction[,] there is no such reasonable possibility here." 

Dunn, 478 Mass. at 137. We therefore decline to disturb the 

verdict of murder in the first degree.
9

2. Duplicative convictions. The jury also found the

defendant guilty on each of the other indictments, including two 

counts of unlawful possession of a loaded firearm, and two 

counts of unlawful possession of ammunition. Both parties agree 

that the defendant was convicted of both possession of a loaded 

firearm and possession of the ammunition contained within it, 

making the latter convictions duplicative. At the conclusion of 

the trial, the convictions of possession of ammunition were 

placed on file without objection from the defendant. However,

there is a possibility, albeit slim, that the defendant could be 

sentenced on those convictions. This would subject him to being 

punished a second time for possession of the same ammunition. 

Because such an outcome would violate the principles of double 

jeopardy, we hereby dismiss the two convictions of possession of 

ammunition. See Commonwealth v. Johnson, 461 Mass. 44, 54

(2011).

3. Relief pursuant to G. L. c. 278, § 33E. Finally, the 

defendant asks us to exercise our extraordinary power under 

G. L. c. 278, § 33E. Upon review of the entire record, we 

discern no error that resulted in a substantial likelihood of a 

miscarriage of justice. We therefore decline to order a new 

trial or to reduce the degree of guilt under § 33E.
10

Conclusion. For the foregoing reasons, the defendant's 

convictions are affirmed, with the exception of the convictions 

of possession of ammunition, which are hereby dismissed.

So ordered.