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 defendants, Terrell Rainey and Kadeem Foreman, appeal from their convictions of involuntary manslaughter and murder in the second degree, respectively, claiming that the evidence was insufficient to support the jury's verdicts and that the prosecutor's closing argument was improper and unfairly prejudiced the defendants. We discern no cause to disturb the convictions and affirm, addressing the defendants' claims in turn.
Foreman was also convicted of assault and battery by means of a dangerous weapon, possession of a firearm without a license, and unlawful possession of a loaded firearm.
1. Sufficiency of the evidence. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence at trial included the following. Two victims were shot while standing in the foyer of an apartment building; one of the victims died from her wounds. The door to the foyer was closed. Police responded to the scene after hearing several gunshots. Upon their arrival at the scene moments later, police observed Foreman firing shots in the direction of the door. While Foreman was firing his weapon, police observed Rainey next to Foreman, crouched down and waving his hands. After police made their presence known, Foreman and Rainey fled together in the direction of Rainey's home. They were found shortly thereafter, hiding together behind a tree. Police searched along their flight path and recovered two handguns, one a semiautomatic and the other a .38 caliber revolver. The semiautomatic handgun had palm prints matching Foreman.
The metal exterior of the door to the foyer showed an indentation that could have been caused by a bullet, and a bullet matched by ballistics to the .38 caliber revolver was found in the street near where police had observed Foreman and Rainey; that bullet was deformed in a manner consistent with having struck the metal door exterior. The door also had two bullet holes in it.
Both victims were struck in soft tissue, but the bullets remained inside their bodies. The bullets, later recovered, showed a "mushroom" expansion, consistent with first having struck (or passed through) an object. Expert testimony suggested that a bullet entering a victim's body at normal velocity (i.e., without having been slowed by impact with an object before entering the soft tissue) ordinarily would have traveled through the victim's body and exited. Ballistics excluded both the .38 caliber revolver and the semiautomatic handgun as the weapon that fired the bullets that struck the victims; that weapon was never found.
On the foregoing evidence, a rational jury could conclude that Foreman and Rainey were acting in concert with each other in directing an armed assault on the occupants of the apartment building foyer. While the murder weapon was never found, a rational jury could infer that the fatal shots were those fired shortly before police arrived on the scene, and that penetrated the door before coming to rest within the bodies of the two victims. Both the mushroom shape of the bullets recovered from the victims and the fact that the bullets did not travel through the victims' bodies, even though striking nothing but soft tissue, support that inference. Because the shots inferably were fired moments before police arrived on the scene, and Foreman and Rainey were engaged in an armed assault against the apartment foyer when police observed them, a rational jury could also infer either that Rainey or Foreman fired the fatal shot or that a third person, with whom Rainey and Foreman had joined in the assault, fired the shot and fled before police arrived. That Rainey acted in concert with Foreman is supported by Rainey's use of hand gestures directed toward Foreman as he was shooting toward the door, as well as the fact that the two of them fled and hid together before they were found by police behind a tree. See Commonwealth v. Deane, 458 Mass. 43, 50 (2010); Commonwealth v. Dixon, 79 Mass. App. Ct. 701, 711-712 (2011). As the Commonwealth observes, it is not necessary to establish a joint venturer's precise role in a joint venture. See Commonwealth v. Phillips, 452 Mass. 617, 634 (2008); Commonwealth v. Akara, 465 Mass. 245, 255-256 (2013).
The defendants' suggestion at oral argument that the sizes of the entry wounds on the victims are inconsistent with the possibility that the bullets acquired their mushroom shape before entering the victims' bodies is not compelled by the evidence. There was, for example, no medical or other testimony describing the relationship between bullet size and a penetration wound.
The evidence is also sufficient to establish that Foreman held the requisite intent to support his conviction of murder in the second degree. His act of firing a weapon toward the door, behind which he was aware people were standing, creates a plain and strong likelihood of death. See Commonwealth v. Alebord, 68 Mass. App. Ct. 1, 7-8 (2006).
2. Closing argument. The defendants challenge the prosecutor's closing argument on two separate grounds. First, they contend that the prosecutor mischaracterized the evidence by suggesting that Rainey fired the .38 caliber revolver and by suggesting that both defendants were present with the person who fired the shots that struck the victims. Second, the defendants contend that the prosecutor appealed improperly to jurors' sympathy when he suggested that the person who fired the shots that struck the victims had fled before police arrived and, thereby, "got away with murder," and then implored the jurors (by reference to the defendants) "to not let another man get away with murder."
For the reasons described in our discussion of the sufficiency of the evidence, the evidence (and fair inferences therefrom) supported the prosecutor's suggestion that the defendants were present when the shots that struck the victims were fired, moments before police arrived on the scene. The evidence likewise supported the prosecutor's suggestion that Rainey could have fired the .38 caliber revolver at the door, only to have the bullet ricochet off the door and land behind him. It was for the jury to weigh the evidence and determine whether to adopt that hypothesis.
The prosecutor's admonition to the jury that they not let another man get away with murder would have been better left unsaid. However, the judge noted the concern and directed specific portions of her final charge to the jury to recognize that arguments are not evidence, that jurors should rely on their own understanding of the evidence rather than the attorneys' descriptions of it, and that they should not be swayed by prejudice or sympathy.
The panelists are listed in order of seniority. --------
Clerk Entered: May 4, 2016.