Argued: October 9, 2014.
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 7, 2013.
The case was reported by Gants, J.
Robert L. Sheketoff ( Kirsten M. O'Brien with him) for the defendant.
Cailin M. Campbell, Assistant District Attorney ( Mark T. Lee, Assistant District Attorney, with her) for the Commonwealth.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines, JJ.
[22 N.E.3d 945] Spina, J.
In 2011, the defendant, Adam Simpkins, was indicted on charges of murdering Cordell MacAfee, armed assault with intent to murder Christopher Jones, accessory after the fact to murder, and unlawful possession of firearms. The jury found the defendant guilty of unlawful possession of firearms and accessory after the fact. The jury were unable to reach a verdict on the indictments charging murder and armed assault with intent to murder, and the judge declared a mistrial as to those indictments. The Commonwealth requested that sentencing on the indictments
on which the defendant was found guilty be postponed until he could be retried on the indictments that were mistried. The defendant, in turn, moved to dismiss the mistried indictments on two theories of double jeopardy, namely, (1) his motion for required findings of not guilty at the close of the Commonwealth's case should have been allowed, and (2) the conviction of accessory after the fact has collateral estoppel effect barring retrial of the indictments alleging murder and armed assault with intent to murder. The defendant's motion was denied. The defendant filed this petition under G. L. c. 211, § 3, alleging that the denial of his motion to dismiss violated principles of double jeopardy and that the Commonwealth, having convicted the defendant of being an accessory after the fact, was estopped as a matter of law from trying him as a principal for the same crime. See Costarelli v. Commonwealth, 374 Mass. 677, 679-680, 373 N.E.2d 1183 (1978). The single justice reserved and reported the case, without decision, to the full court. We hold that the defendant's motion for required findings of not guilty as to the indictments charging murder and armed assault with intent to murder should have been allowed. Because of this holding, we need not address the issue of collateral estoppel.
We recite the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 677, 393 N.E.2d 370 (1979). On May 7, 2010, two men in matching cream-colored hooded sweatshirts shot at MacAfee and Jones, his brother, as the two sat on the front porch of a home on Roseland Street in the Dorchester section of Boston. One eyewitness testified that the defendant was not one of the shooters. Before the two men began shooting, one asked MacAfee and Jones, " What's up now?" MacAfee was struck by two bullets of differing calibers, once in the neck and once in the stomach. Jones was not injured. The shooters fled in the direction of Dorchester Avenue and then to the defendant's residence on St. Mark's Road.
MacAfee did not die immediately from his wounds but made his way to Dorchester [22 N.E.3d 946] Avenue, where he collapsed in the street. Police quickly responded and canvassed the neighborhood for the shooters. Their investigation soon centered on the defendant's residence, where an eyewitness indicated the ...