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Commonwealth v. Buttimer

Supreme Judicial Court of Massachusetts, Plymouth

August 7, 2019


          Heard: February 8, 2019.

         Indictments 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 the defendant.

          Nathaniel Kennedy, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, & Kafker, JJ.

          KAFKER, J.

         Angry 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.

         This 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.

         For the 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.

         1. Facts.

         We 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.

         The 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.

         On the 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.[1] 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.

         At 9:30 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.

         Deoxyribonucleic 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.

         The 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.

         After 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.

         At around midnight on July 12, the husband woke up the brother, [2] who 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.

         The 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 officers.[3]

         A 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.[4] 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.

         Alerted 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.[5] 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 times.

         A 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.[6] As discussed supra, there was evidence that the defendant struck his rifle against the floor of the basement before confronting the first responders.

         After 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.

         The 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.

         At 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.[7] 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.

         However, based on a comparison between the unique firing pin marks on the cartridge[8] and those of bullets test-fired from the rifle, [9] 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.[10]

         From 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.

         The jury convicted the defendant on all charges.[11] ...

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