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07/11/94 COMMONWEALTH v. SCOTT E. CHIPMAN.

July 11, 1994

COMMONWEALTH
v.
SCOTT E. CHIPMAN.



Plymouth. Indictments found and returned in the Superior Court Department on March 4, 1991. A pretrial motion to suppress evidence was heard by J. Harold Flannery, J., and the cases were tried before him.

Present: Liacos, C.j., Abrams, Nolan, Lynch, & Greaney, JJ.

The opinion of the court was delivered by: Abrams

Identification. Joint Enterprise. Homicide. Practice, Criminal, Required finding, Capital case. Evidence, Demonstration, Videotape, Admissions and confessions. Constitutional Law, Admissions and confessions.

ABRAMS, J. Following a jury trial, the defendant, Scott E. Chipman, was convicted of murder in the first degree, armed assault with intent to murder, assault and battery by means of a dangerous weapon, assault by means of a dangerousweapon, two indictments charging malicious injury to property exceeding $250, and unlawfully carrying a rifle or shotgun. On appeal, the defendant challenges the sufficiency of the evidence to show: (a) the identity of the defendant as the person who shot the victim; (b) joint venture; (c) deliberate premeditation and extreme atrocity or cruelty; (d) the admission of a video tape simulation of the sniper's view of the scene; and (e) the denial of the defendant's motion to suppress his statements to the police. *fn1 We conclude that there was no reversible error. We also conclude that we should not exercise our power under G. L. c. 278, § 33E (1992 ed.), to order a new trial or to enter a lesser degree of guilt on the conviction for murder in the first degree. We affirm the judgments.

1. The facts. We set forth the facts in the light most favorable to the Commonwealth. Commonwealth v. Salemme, 395 Mass. 594, 595, 481 N.E.2d 471 (1985). At approximately 9:20 A.M. on January 5, 1991, the victim, fourteen year old Robyn Dabrowski, was fatally shot while riding in a school bus traveling on Route 25 in Plymouth. *fn2 The lethal bullet was fired from a .30 caliber M-1 carbine. It was shot from a nearby wooded area and struck the bus in a direct line. The fatal shot did not ricochet.

Just before Dabrowski was fatally shot, Lance Magnusen, who was driving his Mercedes automobile along the same stretch of Route 25, heard a loud bang in the back of his car. His rear windshield had been shattered. He pulled over and saw a small hole in the passenger side of the rear window and two holes in the interior on the driver's side rear roof support. The police recovered fragments of a .30 caliber full "copper-jacketed" bullet from the driver's side rear roof support of the Mercedes. This bullet was fired from the same weapon as the bullet that killed Robyn Dabrowski.

A few minutes after the fatal shooting, Brian Patterson and Terry Everett saw an early 1980's gray Chevrolet Caprice automobile containing two white male occupants with short, dark hair and mustaches drive away from the area where the shots had been fired. Both the defendant and his near constant companion in late December, 1990, and early January, 1991, William Ferrara, had short, dark hair and mustaches on January 5, 1991. In addition, from January 3, 1991, through January 7, 1991, the defendant had a rented 1983 gray Chevrolet Caprice automobile.

In July, 1990, the defendant had purchased some stereo equipment from Scott DeMacedo of Yarmouthport. The transaction occurred in the living room of DeMacedo's house, where there was a gun cabinet containing a .30 caliber M-1 carbine rifle equipped with a telescopic sight and a .410 gauge shotgun. On January 2, 1991, the carbine and the shotgun were stolen from DeMacedo's gun cabinet. Other valuable items were not taken from DeMacedo's home.

On January 3, 1991, Caren Stenroos, a friend of both the defendant and Ferrara, went to Ferrara's house, where the defendant was then residing. Stenroos saw a gun clip on the dining room table. When the defendant came home, he displayed both an M-1 carbine and a .410 gauge shotgun to Stenroos and told her that both guns belonged to him.

On January 4, 1991, the defendant and Ferrara went to Worcester to purchase ammunition for the guns. That evening, from approximately 7:30 to 9:30 P.M., the defendant and Ferrara shot targets on the beach near Ferrara's house. Three of Ferrara's neighbors, Angela Pittsley, Malcolm MacKinnon, and Louise MacKinnon heard the gunfire associated with this target shooting. While the target practice was in progress, Pittsley saw two men shooting on the beach. After the gunfire ended, Malcolm and Louise MacKinnon saw the defendant and Ferrara walk up from the beach area carrying rifles. The police found two spent .30 caliber carbine cartridge casings on the beach. The carbine casings werefired from the same weapon as the bullet that killed Robyn Dabrowski.

At approximately 9:30 P.M., the defendant and Ferrara arrived at Stenroos' house, where they proceeded to discuss the target shooting. The defendant told Stenroos that he had used the "more high tech" gun. The defendant stated that Ferrara's marksmanship "sucked" and that he had to teach Ferrara "how to hold the gun and shoot it."

At 10:30 A.M. on the day of the shooting, January 5, 1991, Malcolm and Louise MacKinnon saw two rifles protruding from the front door of Ferrara's house. The rifles were being fired in the direction of the beach in front of Ferrara's house. The MacKinnons saw the defendant leave the house and then return fifteen minutes later. When the defendant returned, several more shots were fired from the house.

At 11:10 A.M. on January 5, 1991, the defendant appeared at Stenroos' house and said that he and Ferrara had been out shooting by the power lines, which run parallel to Route 25, earlier that morning. The defendant told Stenroos that Ferrara's marksmanship had again "sucked" but that, because of the telescopic sight the defendant had on his gun, he "could . . . hit anything that he aimed at."

In a search of the area around the power lines, the police found several spent .30 caliber carbine and .410 gauge shotgun casings, an unexpended .30 caliber round and three expended .30 caliber projectiles. The pattern of these casings and the expended projectiles indicated that the area had been used for target shooting. One of the targets shot at in this area was an ...


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