Date December 10, 2015.
found and returned in the Superior Court Department on
November 14, 2 008, and January 30, 2 009. The cases were
tried before Thomas E. Connolly, J.
Supreme Judicial Court granted an application for direct
Jessica L. LaClair for the defendant.
K. Anderson, Assistant District Attorney (Joseph F. Janezic,
III, Assistant District Attorney, with her) for the
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
case arises from a shooting that occurred at a cookout in the
Dorchester section of Boston on a summer night in 2008. The
defendant was convicted by a Superior Court jury on
indictments charging unlawful possession of a firearm, G. L.
c. 269, § 10 (a.); unlawful possession of ammunition, G.
L. c. 269, § 10 (h); carrying a loaded firearm, G. L. c.
269, § 10 (n); assault and battery by means of a
dangerous weapon causing serious bodily injury, G. L. c. 265,
§ 15A; and two counts of assault by means of a dangerous
weapon, G. L. c. 265, § 15B (b). The indictments charging
unlawful possession of a firearm also alleged that the
defendant previously had been convicted of two violent crimes
and thus was subject to enhanced penalties under the
Massachusetts armed career criminal act, G. L. c. 269, §
10G (ACCA). In a separate trial following these convictions,
the same jury found the defendant guilty of the subsequent
offender portions of the indictments.
defendant appealed from his convictions, and we allowed his
application for direct appellate review. The defendant argues
that (1) the evidence was insufficient to prove assault and
battery by means of a dangerous weapon causing serious bodily
injury; (2) the convictions of two counts of assault by means
of a dangerous weapon were duplicative of the conviction of
assault and battery by means of a dangerous weapon causing
serious bodily injury; and (3) the conviction of possession
of ammunition is duplicative of the conviction of possession
of a loaded firearm. He also contends that the evidence
presented by the Commonwealth in support of his prior
convictions was insufficient to establish that he had
committed a "violent crime, " and therefore he
cannot be convicted under the subsequent offender portion of
the indictments. For the reasons set forth below, we affirm
in part and reverse in part.
summarize the facts the jury could have found, reserving
additional facts for later discussion. On the night of the
shooting, Joao Pereira, the shooting victim, and his brother,
Ovidio Pereira,  were celebrating a friend's birthday
at a cookout at a house on Howard Avenue in Dorchester. As
some of the guests were standing on the front porch, a man
who was walking past the house on the opposite side of the
street said to "Nelito, " one of the partygoers,
"Oh, what are you looking at?" Nelito responded,
"Oh, you are looking at me, I'm just looking at
you." The man continued walking down the street, but
returned with another man, who asked Joao if he "[had] a
problem." The two men eventually walked away and had a
conversation with two other men in a Toyota Corolla
automobile that was driving past. The Toyota continued up the
street, turned around, and stopped in front of the house
where the cookout was taking place. By that time, there were
approximately eight people standing in front of the house,
and another round of verbal exchanges occurred between the
occupants of the Toyota and the guests at the party.
vehicle idled in the street, the driver said, "Oh, you
guys are still looking at us funny." Joao responded,
"Nobody's looking at you, " to which the driver
retorted, "Oh, if you keep looking at me funny, I'm
going to get out the car and slap you." Joao replied,
"You don't have no right to slap nobody." Joao
and another partygoer then threw beer bottles at the Toyota;
one bottle hit the driver in the head and another bottle
broke the rear side window on the driver's side.
driver, later identified as the defendant,  got out of the
vehicle, aimed a gun at the group on the porch, and fired two
shots. The partygoers scattered in different directions. Joao
and Ovidio ran to the back of the house with the defendant
chasing after them; they tried to get inside, but the door
was locked. They ran back to the front porch where the
defendant, standing on the first step, fired several more
shots at them. One bullet struck Joao in the lower back.
defendant ran back to the Toyota and jumped in, and the
vehicle sped away. Police responded to a 911 call that had
been placed by a neighbor, who had seen the events unfold
from his bedroom window. Shortly thereafter, the defendant
was arrested at his house. He was bleeding from the side of
his head, and had dried blood on his hands and face. The
defendant's mother provided police with a key to the
Toyota that the defendant had given her. Investigating
officers found a firearm on the floor of the Toyota and
broken glass scattered throughout the vehicle. Swabs of
reddish brown stains were collected from the firearm, the
ground in front of the Howard Avenue house, and the floor of
an apartment the defendant had visited shortly before his
arrest. Tests performed on the deoxyribonucleic acid (DNA)
that was recovered from these locations included the
defendant as a possible contributor to each of the
defendant testified in his own defense and admitted to having
been in the Toyota on the night of the shooting, but claimed
that another occupant of the vehicle had fired the shots. In
support of this contention, the defendant asserted that he
was not wearing the white T-shirt and dark baseball hat that
a witness testified the shooter had been wearing.
close of the Commonwealth's case and again at the close
of all the evidence, the defendant filed motions for required
findings of not guilty; the motions were denied. After the
jury returned their verdicts, a trial was conducted on the
subsequent offender portion of the indictments. The same jury
heard evidence that the defendant previously had been
convicted, pursuant to his guilty pleas, of assault and
battery upon a public employee and assault and battery.
Certified copies of these convictions were introduced, and
the defendant stipulated that he was the individual who had
been convicted of those crimes. After the Commonwealth
rested, the defendant filed a motion for a required finding,
arguing that the Commonwealth had failed to establish that
both prior offenses constituted "violent crimes"
within the meaning of the ACCA. The judge denied the motion,
and the jury found him guilty.
Sufficiency of the evidence of assault and battery by means
of a dangerous weapon resulting in serious bodily
review the denial of a motion for a required finding to
determine whether "any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt." Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979), quoting
Jackson v. Virginia, 443 U.S. 307,
319 (1979) . The defendant contends that the evidence was
insufficient to support a conviction of assault and battery
by means of a dangerous weapon resulting in serious bodily
injury, G. L. c. 265, § 15A (c0 (i), because the
Commonwealth did not introduce testimony from Joao, testimony
from medical personnel who treated his injuries, or his
bodily injury" means "bodily injury which results
in a permanent disfigurement, loss or impairment of a bodily
function, limb or organ, or a substantial risk of
death." G. L. c. 265, § 15A (d) . We have said that
"impairment of a limb occurs when, because of
significant damage to its structure, its capacity to perform
its usual function is compromised."
Commonwealthv.Scott, 464 Mass.
355, 359 (2013) . Clearly, "the loss of a limb . . .
would have a substantial impact on a victim on a par with
injuries causing permanent disfigurement or risking
death." I_d. But the impairment "need not be