Commonwealth v. McNeil, 20-P-1197

CourtAppeals Court of Massachusetts
Decision Date20 April 2022
Docket Number20-P-1197



No. 20-P-1197

Appeals Court of Massachusetts

April 20, 2022

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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).


The defendant, Michael Johnson McNeil, appeals his convictions of carrying a firearm without a license on July 11, 2015, possession of a firearm without a firearm identification card (FID) on July 15, 2015, and possession of ammunition without an FID on July 15, 2015. A Suffolk County grand jury had indicted the defendant on seven charges: (1) murder, in violation of G. L. c. 265, § 1 (occurring on July 11, 2015); (2) armed assault with intent to murder, in violation of G. L. c. 265, § 18 (b) (occurring on July 11, 2015); (3) possession of cocaine, in violation of G. L. c. 94C, § 34 (occurring on July 15, 2015); (4) possession of a firearm without being present in his residence or place of business or having a license to carry


firearms (LTC), in violation of G. L. c. 269, § 10 (a.) (occurring on July 11, 2015); (5) possession of a firearm without an FID, in violation of G. L. c. 269, § 10 (h) (1) (occurring on July 15, 2015); (6) possession of ammunition without an FID, in violation of G. L. c. 269, § 10 (h) (1) (occurring on July 15, 2015); and (7) accessory after the fact to murder, in violation of G. L. c. 274, § 4 (occurring on July 11, 2015). Before trial, the defendant filed a motion to sever the July 15 charges (counts 3, 5, and 6) from the July 11 charges. The trial judge denied this motion as to counts 5 and 6 (the firearms charges) and allowed it as to count 3 (the cocaine charge). At trial, the defendant moved for a required finding of not guilty as to all remaining charges at the close of the Commonwealth's evidence, which motion the trial court denied. The jury found the defendant guilty of counts 4, 5, and 6, and not guilty on each of the remaining charges, including murder. We reverse as to count 4 and affirm as to counts 5 and 6.


Viewing the evidence from trial in the light most favorable to the Commonwealth, the jury could have found the following:

July 11, 2015, shooting.

The Commonwealth alleged that on July 11, 2015, the defendant engaged in a joint venture with Tyshawn Pereira to murder twenty year old Jean Louis, which also


resulted in the attempted murder of sixteen year old Kilo Boutwell. Two other men, Bobby Gilmere and Keyshawn Huggins, were allegedly involved as well.

On July 11, 2015, Louis and Boutwell rode in Edwin Christopher's red Mercury to a birthday party. Louis sat in the front passenger seat, Boutwell was in the back seat, and Christopher drove. Around 5:45 £.M., Christopher stopped on Bailey Street at the intersection of Dorchester Avenue in the Dorchester section of Boston, to pay a cellular telephone bill at a nearby store. Boutwell exited the car with Christopher and then proceeded to a different, nearby store, while Louis remained in the front passenger seat of the Mercury. At about 5:52 £.M., two BMWs, one black and one blue, pulled at the same time to the left side of Bailey Street, just down the street from Christopher's car, around a bend in the road and out of the Mercury's line of sight. The defendant drove the black BMW, with Pereira in the front passenger seat, while Gilmere drove the blue BMW, with Huggins in the passenger seat. One of the alleged shooters, Pereira, immediately exited the front passenger seat of the defendant's black BMW, met with Huggins, who had exited the blue BMW, and the two then proceeded together down Bailey Street towards Christopher's car. The defendant and Gilmere allegedly stayed seated in their idling cars.


As Boutwell returned to Christopher's car, he passed both Huggins and Pereira, one of whom began to lift his shirt. After passing Boutwell and arriving at Christopher's car, Pereira allegedly fired multiple shots towards the front passenger side of the vehicle, shattering the window and causing shards of broken glass to graze Boutwell's ear as he ducked and ran down the street. At some point, Louis fired back from inside the car. Fourteen shots were heard in total, and a witness testified that Pereira shot four times, with one of the shots hitting Louis in the chest. After the gunfire ceased, Christopher sped away, picking up Boutwell and rushing Louis to the hospital. As Christopher drove away, Louis threw a nine caliber pistol out of the car. Louis was later pronounced dead at the hospital. On July 12, 2015, Dr. Mindy Hull performed an autopsy on Louis, concluding that he sustained a single gunshot wound to the torso from less than two feet away, which hit his heart and caused his death. Dr. Hull retrieved one thirty-eight caliber bullet from Louis's body.

After the shootout, Pereira and Huggins ran back to the black BMW and entered the vehicle before the defendant sped off. Cellular telephone records showed that the defendant and Pereira called each other multiple times until about twenty minutes before the shooting.


July 13, 2015, police chase.

Two days after the shooting, on July 13, 2015, at approximately 1:45 £.M., Gilmere and Pereira were involved in a police chase in the blue BMW. During the chase, two loaded firearms were thrown out of the car in a residential area: a Taurus thirty-eight caliber special revolver and a forty-five caliber semiautomatic Ruger pistol. Pereira's global positioning system (GPS) confirmed that he was in the area where and when these two firearms were discarded. Cellular telephone records indicated that, immediately after Pereira and Gilmere discarded the firearms, Pereira called the defendant multiple times. Detective Tyrone Camper and Officer Nina Jefferson of the Boston Police Department Firearms Analysis Unit examined the ballistics evidence recovered from the scene of the shooting and from the Taurus and Ruger that were discarded during the police chase. Detective Camper testified that, to a reasonable degree of ballistic certainty, the thirty-eight caliber Taurus fired the bullet recovered from Louis's body, the two copper jackets and an additional bullet found on Bailey Street, and a copper jacket found in the rear passenger door panel of the red Mercury.

July 15, 2015, search.

At around 9 A.M. on July 15, 2015, as part of an unrelated drug investigation, officers executed a search warrant at 15 Violet Street, the home of the defendant's grandfather, where the defendant also allegedly lived. When the


officers arrived, they observed the defendant exit the home, leave in a red car, and then return ten minutes later with Pereira in his car. The two men then exited the vehicle, and Pereira, who was shirtless, held a white T-shirt in a triangular shape in his forearm, potentially concealing an item such as a firearm. Pereira and the defendant entered 15 Violet Street and left about twenty minutes later. At this time Pereira was wearing a white shirt. They entered the black BMW that the defendant had driven on the day of the shooting (owned by his grandfather), with the defendant driving. After the defendant and Pereira left, the officers entered the home to execute the warrant and recovered the following items from inside a room that also contained the defendant's identification on top of a dresser: a Ruger thirty-eight caliber special revolver and a live thirty-eight caliber special cartridge, which were on a futon, with the revolver in plain view; and forty-one live, forty-five caliber automatic cartridges that were found rolled up in a sock on the floor. The defendant was subsequently arrested and admitted both to living at 15 Violet Street, and to driving the black BMW on July 11, 2015.

Detective Camper testified that the thirty-eight caliber round found in the bedroom at 15 Violet Street on July 15, 2015, was compatible with both the Ruger thirty-eight special revolver recovered that day from the same location, which was not linked


to the July 11 shooting, as well as the Taurus thirty-eight special, which was used in the shooting. Camper also testified that the forty-one live rounds of forty-five caliber ammunition discovered in the bedroom on July 15, 2015, were compatible with the forty-five caliber semiautomatic Ruger pistol recovered on July 13, 2015.


1. Sufficiency of the evidence to support the possession convictions.

The defendant contends that his convictions on the firearms charges should be overturned because the Commonwealth failed to present sufficient evidence from which a rational jury could have found, beyond a reasonable doubt, that he possessed either the Taurus thirty-eight special used in the shooting on July 11, 2015 (murder weapon), as alleged in count 4, or the Ruger thirty-eight special and ammunition recovered from the room in his grandfather's residence on July 15, 2015, as alleged in counts 5 and 6.

a. Standard of review.

When reviewing a claim that the evidence at trial was insufficient to sustain a guilty verdict, we view the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) .



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