Heard: September 17, 2015.
found and returned in the Superior Court Department on August
15, 2006. The case was tried before S. Jane Haggerty, J.
review by the Appeals Court, the Supreme Judicial Court
denied leave to obtain further appellate review, but remanded
the case to the Appeals Court for reconsideration.
Belger for the defendant.
Randall F. Maas & Bethany Stevens, Assistant District
Attorneys, for the Commonwealth.
Present: Katzmann, Meade, & Rubin, JJ.
Commonwealth v. Coutu, 8 8
Mass.App.Ct. 68 6 (2015) (Coutu No. 1), this court
affirmed the defendant's convictions of aggravated rape,
home invasion, mayhem, armed robbery, and kidnapping, and
reversed his convictions of assault and battery by means of a
dangerous weapon causing serious bodily injury and attempt to
burn personal property. Thereafter, the Commonwealth sought
further appellate review and challenged the reversal of the
defendant's conviction of attempt to burn personal
property. The Supreme Judicial Court denied the application
without prejudice and remanded the matter to this
court. Commonwealth v. Coutu,
474 Mass. 1103 (2016). On remand, we have been instructed to
reconsider our reversal of that conviction (based on
insufficient evidence) in light of Commonwealth
v. LaBrie, 473 Mass. 757 (2016). Having
done so, we now affirm the defendant's conviction of
attempt to burn personal property.
facts of this case are set out in detail in Coutu (No.
1), supra at 687-692. In broad outline, the
defendant, a stranger to the victim, broke into her apartment
by tunneling through the wall of an adjacent apartment with a
crowbar, and then beat and raped the victim with the crowbar
before setting fire to a box of items. Relative to the
attempted arson, we recited the following facts, which
occurred after the defendant repeatedly struck the
victim's head with the crowbar until she "was
"When the victim regained consciousness, she saw a pool
of blood next to her and she smelled smoke. The smoke was
coming from a box the defendant had stuck in a hole in the
wall. She dragged the flaming box into the bathtub and
retrieved a fire extinguisher from the kitchen. After reading
the instructions, she was able to use it to extinguish the
Id. at 689.
time of the release of Coutu (No. 1), the Supreme
Judicial Court's most recent cases discussing attempt
under the general attempt statute, G. L. c. 274, § 6,
required proof of three elements: (1) the intent to commit
the substantive crime, (2) an overt act in furtherance of
commission of the substantive crime, and (3) nonachievement
of the substantive offense. See Commonwealth
v. Bell, 455 Mass. 408, 412 (2009);
Commonwealth v. Marzilli, 457
Mass. 64, 66 (2010).
Commonwealth v. LaBrie, 473 Mass.
at 764, the court held that even though there was support in
its prior cases for the proposition that the crime of attempt
had three elements, the court was no longer going to follow
that analysis. As a result, "nonachievement of the
substantive crime" has been demoted from its erstwhile
status as an element of the crime of attempt. Ibid.
Instead, that language has been relegated as "a further
refinement of the definition of the overt act."
Ibid., quoting from Commonwealth
v. Aldrich (No.1), 8 8 Mass.App.Ct. 113,
118 (2015). As the court explained, the nonachievement
language reinforces the fact "that attempt is a crime
separate and distinct from the substantive offense to which
it is connected, one that focuses on, and punishes, acts that
threaten the accomplishment of the substantive offense, not
the substantive offense itself." Commonwealth
v. LaBrie, supra. With that said,
the court nonetheless noted that
"[t]he substantive crime is clearly both relevant and
important, because what the crime of attempt aims to punish
are acts that bear a proximate relation to that crime; put
another way, the substantive crime helps to define and
delimit what acts may have the requisite proximity. But the
acts stand on their own, and whether a particular act
qualifies as an overt act that, combined with proof of the
requisite intent, constitutes a ...