Supreme Judicial Court of Massachusetts, Plymouth
Heard: February 8, 2019.
found and returned in the Superior Court Department on
September 23, 2013. The cases were tried before Cornelius J.
Moriarty, II, J.
Theodore F. Riordan (Deborah Bates Riordan also present) for
Nathaniel Kennedy, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Gaziano, Lowy, & Kafker, JJ.
about being asked to move out of the victim's home, the
defendant broke into a locked gun safe, stole one of the
weapons, shot and killed the victim, and aimed the gun at
first responders. A jury convicted the defendant of murder in
the first degree with deliberate premeditation; assault by
means of a dangerous weapon under G. L. c. 265, § 15B
(b); armed assault with intent to murder under G. L. c. 265,
§ 18 (b); one count of larceny of a firearm under G. L.
c. 266, § 30; and four counts of possession of a firearm
without a firearm identification card under G. L. c. 269,
§ 10 (h) (1). He was sentenced to life in prison without
the possibility of parole for the murder conviction, with
terms of imprisonment for the other convictions to run
concurrently with the life sentence.
appeal focuses on the operability of firearms and the effect
of an inoperable gun on the charges of armed assault with
intent to murder and assault by means of a dangerous weapon.
More particularly, the defendant contends (1) the evidence
was insufficient to sustain his murder conviction because it
did not connect the ".22 caliber class projectile"
that killed the victim with a .223 caliber cartridge casing
shown to have been fired from the .32-40 caliber Winchester
rifle recovered from his person; and these deficiencies and
other evidence supported the existence of a third-party
culprit (the victim's husband's brother); (2) a
required finding of not guilty should have been entered as to
the charges of armed assault with intent to murder and
assault with a dangerous weapon because when the defendant
aimed the Winchester rifle at the first responders it was not
operable; (3) a new trial should be granted because the judge
gave conflicting and confusing operability instructions with
respect to armed assault by means of intent to murder and
assault with a dangerous weapon; and (4) we should grant a
new trial pursuant to G. L. c. 278, § 33E.
reasons stated infra, we conclude that there was no
reversible error. The evidence was sufficient to prove that
the defendant shot and killed the victim with a ".22
caliber class projectile" fired from a .32-.40 caliber
Winchester rifle. We also clarify that a firearm or other gun
need not be operational to prove either assault by means of a
dangerous weapon or armed assault with intent to murder. It
is enough for assault by means of a dangerous weapon that the
weapon appear dangerous to the victim of the assault; the
weapon does not actually have to be operational. Armed
assault with intent to murder requires that the defendant
think his or her weapon is operational - otherwise the
defendant lacks the specific intent to murder - but not that
the weapon actually be operational. Although the instructions
were not correct in this regard in the instant case, the
defendant here was the beneficiary of the error, as the judge
needlessly required the firearm to be operational for armed
assault with intent to murder. The jury so found, and the
evidence supported such a finding, because the gun fired when
it killed the victim and a jury could infer that it was
operational after that. Finally, after a thorough review of
the record, we also find no reason to exercise our authority
under G. L. c. 278, § 33E, to grant a new trial or to
reduce or set aside the verdict of murder in the first
degree. We therefore affirm the defendant's convictions.
recite the facts that the jury could have found, viewing them
in the light most favorable to the Commonwealth, and
reserving some details for later discussion. Commonwealth
v. Latimore, 378 Mass. 671, 676-677 (1979) . The victim
and her husband lived in a home in a rural part of
Middleborough. In 2011, the husband's brother moved into
the home. Between them, the husband and the brother owned
approximately ten guns for hunting, mostly rifles, which were
kept in closets in their bedrooms or locked in a metal gun
safe in the basement.
defendant was an acquaintance and occasional coworker of the
brother. In mid-June 2013, the defendant began temporarily
staying at the victim's home to be close to a repair job
he and the brother had at a hotel. Near the end of June, the
victim invited the defendant to remain at the home. The
defendant continued living at the home to work with the
brother on another job. The brother and the defendant also
worked on a house the victim owned to prepare it for sale.
morning of Thursday, July 11, 2013, the brother found a note
that the victim had left for him requesting that he and the
defendant move out. Later that day, when the brother told the
defendant about the note, the defendant grew angry and upset.
He asked, "What's wrong with that bitch?" and
expressed unhappiness that he had to continue performing
repairs on the victim's home that weekend. The defendant
remained upset through the afternoon about having to work on
the victim's house that weekend despite being asked to
move out. At dinner with the husband and brother, he still
"wasn't pleased" that he had to leave, even
though the brother told him that he had begun looking for
apartments for them to move into together.
P..M., the brother went to bed in his bedroom on the second
floor, while the defendant and the husband watched television
in the living room on the first floor. The brother was asleep
by 10 £.M. At some point the husband also went to bed.
acid (DNA), fingerprint, footprint, blood, and hair evidence
showed that, sometime that evening, the defendant went into
the basement of the house. He used a shovel to force open the
gun safe and remove several rifles, injuring himself in the
process. He left his DNA on the shovel and his fingerprint, a
footprint, blood, and hair on the gun safe (and blood and
hair on the surrounding floor). He then used a pair of pliers
to cut the gun lock off a .32-.40 caliber Winchester rifle
(the Winchester rifle) that belonged to the husband, and
loaded it with ammunition, leaving his DNA on the pliers, a
box of ammunition, and two .22 caliber rifles.
victim had been having dinner with her daughter that evening
and returned home after 11 P..M. A neighbor heard a single
gunshot coming from the direction of the home at
approximately 11:45 P.M.
shooting the victim, the defendant returned to the basement
and struck the rifle against the floor to remove the spent
.223 caliber Remington cartridge casing. In the process, he
broke the rifle's wooden stock. Fragments of wood from
the Winchester rifle were subsequently discovered on the
basement floor. The defendant then left the basement through
the bulkhead, which investigating officers later found open,
and went into the woods.
around midnight on July 12, the husband woke up the brother,
came out of his room to see the victim on the landing of the
staircase covered in blood, not conscious, and bleeding from
her nose and mouth. The brothers could not tell what was
causing the victim's bleeding. The husband telephoned 911
to report a medical emergency and then attempted to apply
cardiopulmonary resuscitation. The brother also tried to tend
to the victim.
brother subsequently went downstairs, where he noticed more
blood on the stairs and in the living room and the kitchen.
In the kitchen, he washed the victim's blood off his
hands and obtained a flashlight that he took to the end of
the dark driveway to help direct emergency personnel.
Firefighters arrived at the home within minutes to attend to
the victim, followed shortly by an ambulance service and two
police officer and a paramedic, as well as the brother, were
outside the home when the defendant emerged from the woods
carrying the Winchester rifle. The paramedic saw the
defendant pull the lever action of the weapon down and back,
suggesting that the rifle was being readied for
firing. The paramedic immediately began running
toward the house; to alert the police officer, he shouted
words to the effect of, "Does that guy have a fucking
gun?" While running, he turned around and saw the
defendant raise the gun to firing position and aim it at him
and the police officer.
by the paramedic, the police officer saw the defendant aiming
the rifle at him from approximately thirty yards away. The
officer attempted to move out of the way, but the defendant
"tracked" him with his rifle, causing the officer
to fear for his life. The officer shouted to the defendant to
"drop [his] gun" and then fired his service weapon
at the defendant. The defendant fell to the ground but
attempted to raise his rifle again, causing the officer to
fire further shots until the defendant was no longer moving
and the gun was completely on the ground. The officer fired a
total of ten shots at the defendant, striking him three
second police officer disarmed the defendant by kicking the
rifle away and then throwing it out of the defendant's
reach. The lever of the defendant's rifle was open, a
live round of .223 caliber ammunition was on the ground
nearby, and the defendant had three additional live rounds of
.223 caliber ammunition in his pockets. However, the stock of
the defendant's rifle was broken, and a police ballistics
expert later determined that the rifle could not fire without
certain repairs. As discussed supra, there was
evidence that the defendant struck his rifle against the
floor of the basement before confronting the first
the defendant had been subdued, two firemen began treating
the defendant for his gunshot wounds. The defendant was
visibly angry and said, "Next time I'll come back
with a bigger gun." The defendant was handcuffed and
transported to a hospital, where, in addition to receiving
medical treatment, his clothes were seized by the State
police. The brother and the victim's husband were also
handcuffed and placed in separate police cars. They were
later interrogated at the police station before being
released early in the morning.
medical examiner who performed the autopsy subsequently
estimated that the victim had died within minutes due to a
bullet that pierced her lung, penetrated her pulmonary artery
and vein, and lodged itself in her spine. Based on gunpowder
residue around the wound, the medical examiner estimated that
the victim was shot from no more than two feet away.
trial, a police ballistics expert employed various forensic
ballistics techniques to try to determine whether the bullet
recovered from the victim and the cartridge casing in the
basement were fired by the Winchester rifle recovered from
the defendant's person. The expert testified that the
bullet recovered from the victim's body was a ".22
caliber class projectile" that was in "very good
condition" but only had "rifling" in trace
amounts on its base, and no rifling on its
sides. The expert concluded that the bullet had
been fired from a larger barreled gun than the kind for which
it was designed, although, due to the lack of rifling, he was
"inconclusive" about whether the bullet came from
the Winchester rifle.
based on a comparison between the unique firing pin marks on
the cartridge and those of bullets test-fired from the
rifle,  the ballistics expert was able to conclude
to a "reasonable degree of ballistics certainty"
that the .223 caliber cartridge casing found in the basement
"was fired by the .32-.40 Winchester lever action
rifle." The expert also testified that the physical
condition of the cartridge "was consistent with being
fired out of a larger caliber weapon than a .223
Remington," such as the Winchester rifle.
the testimony and physical evidence presented at trial, the
Commonwealth argued as follows: the defendant was angry at
the victim for asking him to move out. He broke into the gun
safe in the basement using the shovel, injuring himself in
the process. He then cut the gunlock off the Winchester
rifle, loaded it with ammunition, and shot the victim on the
first floor of the home. The victim attempted to climb the
stairs and collapsed on the landing, where she was discovered
by her husband. After shooting the victim, the defendant
returned to the basement, struck the rifle against the floor
to remove the spent cartridge casing (breaking the
rifle's wooden stock in the process), and reloaded the
rifle. The defendant went out of the basement through the
open bulkhead and into the woods before aiming his rifle at
the emergency personnel as described supra.
jury convicted the defendant on all charges. ...