Commonwealth v. Melton

• Decision Date: 07 September 2000
• Docket Number: P-216
• Citation: Commonwealth v. Melton, 741 N.E.2d 69, 50 Mass. App. Ct. 637 (Mass. App. 2000)
• Parties: (Mass.App.Ct. 2001) COMMONWEALTH vs. LAJUAN MELTON. 99-
• Court: Appeals Court of Massachusetts

741 N.E.2d 69 (Mass.App.Ct. 2001)

COMMONWEALTH vs. LAJUAN MELTON.

99-P-216.

Massachusetts Court of Appeals

September 7, 2000

January 2, 2001

Assault by Means of a Dangerous Weapon. Practice, Criminal, Sentence. Evidence, Identification, Testimony of third party respecting identification. Identification. Joint Enterprise.

Complaint received and sworn to in the Brockton Division of the District Court Department on April 3, 1998.

The case was tried before Richard D. Savignano, J.

Anne E. Gowen, Committee for Public Counsel Services, for the defendant.

Patrick C. Lee, Assistant District Attorney, for the Commonwealth.

Brown, Greenberg, & Duffly, JJ.

BROWN, J.

The defendant appeals from his convictions of multiple offenses arising out of a drive-by shooting.¹ The Commonwealth's evidence tended to show that during a drive-by incident, one of four occupants of a vehicle fired a single shot into another vehicle which also contained four occupants. The judge sentenced the defendant on the counts for unlawful possession of a firearm and for the assaults to five consecutive terms.² The defendant's main contention on appeal is that three of his four assault convictions must be vacated because the evidence showed that the shooter intended to commit, at most, one battery. The defendant also claims that there was insufficient evidence to convict him either as a joint venturer or as a principal on the assault counts as well as the count for malicious damage to a motor vehicle.³ We affirm the convictions.

We rehearse the facts the jury could have found. On the evening of April 1, 1998, Daniel Marcellus (Daniel), was a passenger in a 1991 Honda Accord automobile traveling on Main Street in Brockton. In the vehicle were Daniel's brother Michael, Johnson Danger, Gael Calixce, and Shamond Rowell. As the Honda proceeded down Main Street, it passed the defendant, who was standing in front of a bar with David Benedict, Donald Everett, and Catima Andrews. One or two of the individuals in the latter group "threw their hands up," which Daniel interpreted as a solicitation to engage in a fight. The Honda turned around and came back to where the defendant and his group were standing. Daniel and Michael stepped out of the Honda, and Michael asked what was the problem. There previously had been tension between the defendant and Daniel regarding a friend of the defendant (referred to as "Gerald"), who had been killed in a car accident. Apparently prompted by Michael's suggestion that the dispute be settled, there was an agreement that the defendant and Daniel would fight, "one-on-one." Daniel testified that the defendant took off his jacket and sweater, removed a gun from his waistband,⁴ and then wrapped the gun in his sweater or jacket, briefly went out of sight behind a building,⁵ and returned, apparently without the weapon.

Daniel and the defendant fought with fists, "blow for blow." Shortly thereafter, the parties backed away from each other, the defendant appearing "winded." The defendant's friends, however, encouraged him to continue fighting. The fight apparently had concluded as the police arrived. Both parties apparently emerged relatively unscathed. Daniel told the police that the fight was over and that no weapons had been used. Daniel testified that David Benedict was a passive spectator during this incident and that he did not see Benedict with a weapon.

When the police left, Daniel and his companions drove off in the Honda. After dropping Danger off at his home, Calixce, feeling shaky, asked Daniel to drive. Calixce took the front passenger seat, Michael the rear seat on the driver's side, and Rowell the rear seat on the passenger side. As the Honda turned on to Summer Street, Daniel observed through the side-view mirror a vehicle coming up "real fast." Daniel testified that the other vehicle crossed into the opposite lane of traffic and came up almost directly abreast of the Honda. He saw a "light-skinned hand coming out the window" next to the rear passenger seat; the hand contained a weapon, the same weapon Daniel had seen the defendant with just prior to their fight. He recognized it because it was all black and had a long barrel. Daniel then heard what sounded like a "cap gun or a firecracker . . . going off."⁶ Asked what was his state of mind after he heard the noise, Daniel replied over objection that "[a]t that time [he] just figured it was [the defendant] who shot it. That's what was in [his] head at the time." Daniel testified that after the shot, he looked into the other vehicle, which Calixce later testified was an "old blue Chrysler" which had been seen in the vicinity of the bar at the time of the fight.⁷ Daniel stated that Donald Everett was driving, that Catima Andrews was in the front passenger seat, that David Benedict was in the rear seat, driver's side, and that the defendant occupied the rear seat on the passenger side. None of the other Honda occupants saw the weapon or was able to identify the persons in the other vehicle, either because the Chrysler's windows were fogged up, or because the occupants of the Honda had ducked down after hearing the noise.

After the shot was fired, the other vehicle sped off, and Daniel accelerated in an attempt to obtain the license plate number. After the others in the Honda expressed concern about the possibility of another incident, Daniel drove directly to the police station. He testified that he told the police that he "figured" that it was the defendant who had fired the shot.

The next day, however, when Daniel went to school at Brockton High School, he spoke with several persons, including the defendant's girlfriend, Ruth Andrade, who told him that it was David Benedict who fired the shot.⁸ Daniel testified that he began to have second thoughts about his identification of the defendant because the hand which came out of the window was not a "dark-skinned hand," as inferentially that of the defendant was. Daniel testified at the grand jury that he told Officer Linehan and Detective Reardon that it "probably wasn't even [the defendant] who really shot" at the Honda. Officer Linehan subsequently testified that Daniel told him that he wasn't sure at that time if it was the defendant's hand which came out of the window, and that it was Benedict, known to Daniel as "Dag," who was the shooter. Linehan also stated that at the station Daniel told him that he was unable to identify anyone else in the vehicle.⁹

1. Conviction on four counts of assault by means of a dangerous weapon. The crime of assault by means of a dangerous weapon requires proof of an overt act "undertaken with the intention of putting another person in fear of bodily harm and reasonably calculated to do so, whether or not the defendant actually intended to harm the victim." Commonwealth v. Domingue, 18 Mass. App. Ct. 987, 990 (1984). See Commonwealth v. Gorassi, 432 Mass. 244, 248 (2000) ("the central aspect of an assault is an attempted application of physical force or a threat of the use of physical force, either by an attempt to do bodily harm, or by placing the victim in fear of imminent bodily harm").¹⁰ See also Commonwealth v. Musgrave, 38 Mass. App. Ct. 519, 521-525 (1995), S.C., 421 Mass. 610 (1996).

The defendant was charged with separate counts of assault by means of a dangerous weapon for each of the four occupants of the Honda. He argues that evidence of a single gunshot fired with no warning and followed by the immediate departure of the shooter is not sufficient to prove that the shooter attempted to batter four victims rather than one, and that in these circumstances, it would not have been possible to have shot all four occupants with a single bullet.¹¹

Commonwealth v. Dello Iacono, 20 Mass. App. Ct. 83, 89 (1985), which relied upon

Commonwealth v. Levia, 385 Mass. 345, 347-351 (1982),¹² is instructive on the question presented here.¹³ In Dello Iacono, multiple shots were fired through windows in a residence containing two victims, and the court held that the defendant properly could be convicted on multiple counts of assault, and, in the judge's discretion, given consecutive sentences. The defendant concedes this point but stresses that the present case is distinguishable because only a single shot was fired at the Honda. In Dello Iacono, the court referred to the fact that in the Levia case, the court considered the legislative design and held that the number of persons intimidated measured the number of offenses, noting that the offense of armed robbery fell under the statutory heading "Crimes Against the Person," the text defining the person as the object of protection.¹⁴ Commonwealth v. Dello Iacono, supra at 89.

The decision in Commonwealth v. Gordon, 41 Mass. App. Ct. 459 (1996), cited by both parties, and involving the offense of armed assault with intent to murder, a specific intent crime, is not inconsistent with these principles. There, the defendant pointed a weapon at two pursuing police officers three times. The defendant may have fired once at the officers, the gun jamming after he had fired the single shot. The court did not accept the defendant's argument that a single act of pointing a gun at the officers and shooting once was insufficient to prove two separate armed assaults with intent to murder. In fact, the court held, it was irrelevant that the weapon jammed because the specific intent is measured at the moment the defendant pointed the pistol at the officers. Id. at 465-466. See People v. Mimms, 40 Ill. App. 3d 942, 945-946 (1976).

The defendant's argument that Commonwealth v. Gordon, supra, is not dispositive in the present circumstances because it could be inferred that the defendant there intended to fire not one but several shots to accomplish his purpose to kill both officers misses the mark. That the court looks to the legislative intent in these circumstances to determine whether to charge the defendant with multiple counts as the...