Com. v. Chipman

• Decision Date: 11 July 1994
• Citation: 635 N.E.2d 1204,418 Mass. 262
• Parties: COMMONWEALTH v. Scott E. CHIPMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1204

635 N.E.2d 1204

418 Mass. 262

COMMONWEALTH v. Scott E. CHIPMAN.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued April 4, 1994.

Decided July 11, 1994.

Joseph F. Krowski, Brockton, for defendant.

Frank M. Gaziano, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and GREANEY, JJ.

ABRAMS, Justice.

Following a jury trial, the defendant, Scott E. Chipman, was convicted of murder in the first degree, armed assault with intent to murder, assault and battery by means of a dangerous weapon, assault by means of a dangerous weapon, two indictments charging malicious injury to property exceeding $250, and unlawfully carrying a rifle or shotgun. On appeal, the defendant challenges the sufficiency of the evidence to show: (a) the identity of the defendant as the person who shot the victim; (b) joint venture; (c) deliberate premeditation and extreme atrocity or cruelty; (d) the admission of a video tape simulation of the sniper's view of the scene; and (e) the denial of the defendant's motion to suppress his statements to the police. ¹ We conclude that there was no reversible error. We also conclude that we should not exercise our power under G.L. c. 278, § 33E (1992 ed.), to order a new trial or to enter a lesser degree of guilt on the conviction for murder in the first degree. We affirm the judgments.

1. The facts. We set forth the facts in the light most favorable to the Commonwealth. Commonwealth v. Salemme, 395 Mass. 594, 595, 481 N.E.2d 471 (1985). At approximately 9:20 A.M. on January 5, 1991, the victim, fourteen year old Robyn Dabrowski, was fatally shot while riding in a school bus traveling on Route 25 in Plymouth. ² The lethal bullet was fired from a .30 caliber M-1 carbine. It was shot from a nearby wooded area and struck the bus in a direct line. The fatal shot did not ricochet.

Just before Dabrowski was fatally shot, Lance Magnusen, who was driving his Mercedes automobile along the same stretch of Route 25, heard a loud bang in the back of his car. His rear windshield had been shattered. He pulled over and saw a small hole in the passenger side of the rear window and two holes in the interior on the driver's side rear roof support. The police recovered fragments of a .30 caliber full "copper-jacketed" bullet from the driver's side rear roof support of the Mercedes. This bullet was fired from the same weapon as the bullet that killed Robyn Dabrowski.

A few minutes after the fatal shooting, Brian Patterson and Terry Everett saw an early 1980's gray Chevrolet Caprice automobile containing two white male occupants with short, dark hair and mustaches drive away from the area where the shots had been fired. Both the defendant and his near constant companion in late December, 1990, and early January, 1991, William Ferrara, had short, dark hair and mustaches on January 5, 1991. In addition, from January 3, 1991, through January 7, 1991, the defendant had a rented 1983 gray Chevrolet Caprice automobile.

In July, 1990, the defendant had purchased some stereo equipment from Scott DeMacedo of Yarmouthport. The transaction occurred in the living room of DeMacedo's house, where there was a gun cabinet containing a .30 caliber M-1 carbine rifle equipped with a telescopic sight and a .410 gauge shotgun. On January 2, 1991, the carbine and the shotgun were stolen from DeMacedo's gun cabinet. Other valuable items were not taken from DeMacedo's home.

On January 3, 1991, Caren Stenroos, a friend of both the defendant and Ferrara, went to Ferrara's house, where the defendant was then residing. Stenroos saw a gun clip on the dining room table. When the defendant came home, he displayed both an M-1 carbine and a .410 gauge shotgun to Stenroos and told her that both guns belonged to him.

On January 4, 1991, the defendant and Ferrara went to Worcester to purchase ammunition for the guns. That evening, from approximately 7:30 to 9:30 P.M., the defendant and Ferrara shot targets on the beach near Ferrara's house. Three of Ferrara's neighbors, Angela Pittsley, Malcolm MacKinnon, and Louise MacKinnon heard the gunfire associated with this target shooting. While the target practice was in progress, Pittsley saw two men shooting on the beach. After the gunfire ended, Malcolm and Louise MacKinnon saw the defendant and Ferrara walk up from the beach area carrying rifles. The police found two spent .30 caliber carbine cartridge casings on the beach. The carbine casings were fired from the same weapon as the bullet that killed Robyn Dabrowski.

At approximately 9:30 P.M., the defendant and Ferrara arrived at Stenroos' house, where they proceeded to discuss the target shooting. The defendant told Stenroos that he had used the "more high tech" gun. The defendant stated that Ferrara's marksmanship "sucked" and that he had to teach Ferrara "how to hold the gun and shoot it."

At 10:30 A.M. on the day of the shooting, January 5, 1991, Malcolm and Louise MacKinnon saw two rifles protruding from the front door of Ferrara's house. The rifles were being fired in the direction of the beach in front of Ferrara's house. The MacKinnons saw the defendant leave the house and then return fifteen minutes later. When the defendant returned, several more shots were fired from the house.

At 11:10 A.M. on January 5, 1991, the defendant appeared at Stenroos' house and said that he and Ferrara had been out shooting by the power lines, which run parallel to Route 25, earlier that morning. The defendant told Stenroos that Ferrara's marksmanship had again "sucked" but that, because of the telescopic sight the defendant had on his gun, he "could ... hit anything that he aimed at."

In a search of the area around the power lines, the police found several spent .30 caliber carbine and .410 gauge shotgun casings, an unexpended .30 caliber round and three expended .30 caliber projectiles. The pattern of these casings and the expended projectiles indicated that the area had been used for target shooting. One of the targets shot at in this area was an abandoned stove. The bullets which had been fired at this stove had passed completely through it.

The police also conducted a search along the Gas Line Road, which is in the immediate vicinity of the power lines. Specifically, the police searched a dirt path which runs up from the Gas Line Road to Route 25. Along this dirt path, the police found several expended .30 caliber carbine casings. Five of these casings were found in a cluster. The police determined that it was from this "casing cluster" site, which afforded a clear view of the middle lane of Route 25, 126 yards away, that the fatal shot was fired. ³ According to State Trooper, and firearms identification expert, Michael Robert Arnold, the carbine casings found at this site and those found by the power lines and on the beach in front of Ferrara's house, along with the projectiles that were recovered from the school bus, from the Mercedes automobile and from the area by the power lines, were all fired from the same weapon.

During the evening of January 5, 1991, Stenroos was with the defendant as he moved his belongings out of Ferrara's house. When the defendant took the carbine out of the house, he held it straight down along the left side of his body so that it was even with his leg. Stenroos asked the defendant "[W]hy he was trying to hide the gun?" He responded, "You never know what neighbors are going to do."

Later that evening, as the defendant, Stenroos, and Ferrara sat talking in Stenroos' house, they saw a news report on television concerning the shooting of Robyn Dabrowski. When Ferrara heard the news report, he said that "he hoped it wasn't them who did it." The defendant then stated that he needed a place to put his gun. Stenroos told the defendant that he could not keep the gun at her house and that, as far as she was concerned, "he could throw it in the [Cape Cod] Canal." ⁴

As the defendant and Ferrara left Stenroos' house, Ferrara brought up the subject of the highway shooting and the defendant told him to "shut up." The defendant then told Ferrara that, "if anything came back on [the defendant] about the shooting, [the defendant] would know where it came from and he would come back."

On January 6, 1991, the defendant went to the home of Richard Edwards in Hyannis to watch football games and to drink beer. At some point, the game was interrupted by a news bulletin concerning the search for the weapon used in the highway shooting. The defendant declared that if he had been the sniper, he "would have thrown [the rifle] in the [Cape Cod Canal]."

On or about January 6, 1991, Edwards found a telescopic sight underneath a chair in his living room. On the morning of January 8, 1991, the defendant went to Edwards' house and asked if anyone had seen the "scope." When Edwards could not find the scope, the defendant became very angry and stated that someone "better find it."

On January 7, 1991, while the defendant was riding in an automobile with Billy Criscoe and Philip Spencer, a report concerning the highway shooting was broadcast over the radio. Noting that the lethal bullet had passed through the metal side of a school bus, Criscoe remarked that the sniper must have used "a pretty powerful weapon ... something like a .30-.30 Winchester." The defendant replied that "it could have been an M-1 carbine ... those are powerful weapons, too."

2. The sufficiency of the evidence with respect to the identity of the defendant as the person who shot the victim and joint venture. Relying on Salemme, supra, the defendant argues that the Commonwealth failed to present sufficient evidence to permit a rational trier of fact to infer that he, not Ferrara, fired the fatal shot. We do not agree.

Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), the evidence would permit a rational jury to infer that the defendant, not...