Opinion
14-P-1635
03-25-2016
COMMONWEALTH v. DESMOND PAGE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction, after a jury trial, of assault and battery by means of a dangerous weapon. As we agree with his contention that the evidence was insufficient to establish his guilt, we reverse.
Background. The Commonwealth presented the following evidence at trial. On November 20, 2012, Springfield police responded to a 911 call to 75 Bowles Street in Springfield that a woman had been shot. The responding officer found the defendant in the street holding his girl friend, who had gunshot wounds in both legs. The defendant told the officer that an unidentified black male had approached them behind the Rebecca Johnson School and fired shots. As the victim was placed in the ambulance, the officer asked her what had happened, and she said it was an accident. The defendant then told the police that he had gotten into a physical altercation with the black male, at which point the assailant fired shots at him, hitting the victim instead. The defendant was arrested pursuant to an unrelated outstanding arrest warrant and taken to the police station.
At the station, the defendant offered yet another version of events, stating that the black male reached down into the car where he and the victim were sitting and fired a gun, shooting the victim in the legs. The police initially found no car on the scene at 75 Bowles Street. They later found it parked at 126 Bowles Street. There was a bullet hole in the driver's side door, and a shell casing near the passenger seat. The police found no evidence of a third-party shooter. The crime laboratory found no traces of gunshot primer residue on the defendant's hands. However, the Commonwealth's expert explained that residue could be removed by rubbing or washing one's hands.
Discussion. In reviewing the defendant's challenge to the sufficiency of the evidence, we consider the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Here, the jury were instructed on two theories of assault and battery by means of a dangerous weapon: intentional and reckless. See Commonwealth v. Cruzado, 73 Mass. App. Ct. 803, 807-808 (2009). Neither theory had adequate evidentiary support. The Commonwealth presented no evidence showing that the defendant intentionally fired a gun at the victim. Likewise, the Commonwealth adduced no proof that the defendant chose to engage in reckless conduct disregarding the high likelihood that he would cause substantial harm to another. See Commonwealth v. Welch, 16 Mass. App. Ct. 271, 274-275 (1983).
The most significant evidence the Commonwealth put forward regarding the circumstances of the shooting was the victim's statement that it was an accident. However, this statement provides no information regarding who shot the gun or the events leading up to the shooting. In his closing argument, the prosecutor emphasized the fact that a bullet hole was found on the driver's side of the car and that a shell casing was found on the passenger's side. Again, however, this evidence does not illuminate the circumstances under which the gun was fired.
The victim invoked her privilege under the Fifth Amendment to the United States Constitution and did not testify at trial. The jury were not aware that she had invoked this privilege.
The judge correctly instructed the jury that to prove assault by means of a dangerous weapon under the second theory, "[i]t is not enough for the Commonwealth to prove that the defendant acted negligently, that is, in a manner that a reasonably careful person would not. It must be shown that the defendant's actions went beyond mere negligence and amounted to recklessness." This evidence does not show recklessness on the part of the defendant.
The Commonwealth also points to evidence of what it refers to as the defendant's consciousness of guilt, namely, that the shooting apparently took place in a car but the victim was found in the street, that the defendant gave differing accounts of what happened, and that he did not claim that what happened was accidental. However, even if this conduct can be considered consciousness of guilt evidence as to the crime of assault by means of a dangerous weapon, the defendant's intent either to discharge the gun at the victim, or to engage in reckless conduct that led to its discharge, cannot be inferred from it. We conclude that the evidence was insufficient.
The trial judge granted the defendant's motion for required findings of not guilty on the charges of carrying a firearm without a license, possession of a firearm without an FID card, and discharging a firearm within 500 feet of a building on the basis of insufficiency of the evidence on those charges.
Deciding as we do, we need not address other issues raised by the defendant.
Judgment reversed.
Verdict set aside.
Judgment for the defendant.
By the Court (Cohen, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 25, 2016.