COMMONWEALTH v. JUSTIN BREAKSPEAR (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Justin Breakspear, appeals from his convictions of five counts of assault with a dangerous weapon (rifle), see G. L. c. 265, § 15B (b); possession of a firearm without a license, see G. L. c. 269, § 10 (a); two counts of possession of ammunition without an FID card, see G. L. c. 269, § 10 (h) (1); six counts of possession of a large capacity feeding device, see G. L. c. 269, § 10 (m); discharging a firearm within 500 feet of a building, see G. L. c. 269, § 12E; and carrying a loaded firearm without a license, see G. L. c. 269, § 10 (n).¹ He asserts the judge erred when she denied his motion for a required finding of not guilty, admitted unduly prejudicial evidence, and erroneously denied his motions to strike. Concluding there was no error, we affirm.

1. Sufficiency. The defendant asserts that there was insufficient evidence of five separate counts of armed assault with a dangerous weapon under an attempted battery theory based on the transferred intent doctrine. For purposes of the sufficiency analysis, we recount the relevant facts viewed in the light most favorable to the Commonwealth, see Commonwealth v. Andrade, 488 Mass. 522, 543 (2021), reserving other facts for later discussion with respect to the other grounds for appeal.

Framingham police officers arrived at the defendant's girlfriend's home after she called 911 to report that the defendant had a gun and was en route to the police station to “take out as many as [he] can.” The defendant told his girlfriend to call the police after showing her a firearm and ammunition located in the front passenger seat of his SUV, which was parked in her driveway. As the police converged at the home, they saw the defendant standing near the SUV; a black strap ran across his back. The defendant paced back and forth on the front lawn, walked back and forth to his SUV, and knelt in a “firing position” while holding a firearm.

An officer twice called the defendant's name and told him to put the gun down. The defendant said “not gonna happen, bro.” He stepped out of the officer's view and assumed the firing position on one knee. One officer saw the defendant turn and fire his weapon. Five officers testified they heard a sound consistent with firing a rifle and took cover. One officer heard a bullet “whizzing” by near him.² Officers then heard a sound consistent with repeated (though apparently unsuccessful) attempts to “rack” a rifle.³

The defendant fled to the roof of a nearby business. He was eventually persuaded to come down and was apprehended. In a recorded telephone call from a correctional center after his arrest the defendant stated, “I wish I had killed every single one of them.”

The evidence was sufficient to support convictions on five counts of assault with a dangerous weapon under an attempted battery theory. “Under the attempted battery theory, the Commonwealth must prove that the defendant intended to commit a battery, took some overt step toward accomplishing that intended battery, and came reasonably close to doing so.” Commonwealth v. Melton, 436 Mass. 291, 295 (2002) (upholding four convictions of assault with a dangerous weapon based on a single shot). “The critical element is the potential harm to which the victim was exposed. ․ 'An attempted but unsuccessful battery is criminal not because it actually harms the victim ․ but rather because it imperils the victim.'” Commonwealth v. Lednum, 75 Mass. App. Ct. 722, 725 (2009), quoting Melton, supra at 299.

The evidence here was sufficient to show that the defendant intended to imperil each of the officers. The defendant stated that he was going to “take out as many as he can.” When he learned the police were on their way, he armed himself with a rifle and took a “firing position” pointing toward the road. When the police arrived and tried to speak with him, he responded with, “not gonna happen, bro” and fired his weapon. All five officers heard the shot and took cover; one officer heard the movement of the bullet “whizzing” past him.

The defendant claims that the doctrine of transferred intent does not support a verdict of guilt as to all five officers where only a single shot was fired, but this case is governed in all material respects by Melton, supra. In Melton, the Supreme Judicial Court rejected the argument that the defendant could not be convicted of four counts of attempted battery by firing a single shot into a car with four occupants. “[T]he defendant's argument erroneously assumes that the intent element requires the Commonwealth to prove an intent to batter each and every one of the victims in order for there to be multiple assaults. ․ We have never required that a defendant's intent be directed at the precise victim of the crime.” Melton, 436 Mass. at 296. “Rather, once [mens rea is] established as to any victim, it satisfies that element with respect to all other victims, even if those victims are unintended or even unknown to the defendant.” Id. at 298.⁴ In this case, the number of officers may have been unknown, but by the defendant's own admission injury was intended, and peril ensued. The evidence was more than sufficient to prove assault with a dangerous weapon.

2. Due process. The defendant further asserts that the application of the doctrine of transferred intent violates his due process rights by extending criminal culpability for a single gun shot to all five officers on the scene. Again, as a legal matter, the circumstances here are indistinguishable from Melton, where the Supreme Judicial Court stated “the conduct here ․ placed four people in equally grave peril. ․ The suggestion that they were not victims of any crime, when they all suffered the very peril that the crime of assault by means of a dangerous weapon is intended to address, is contrary to common sense.” Melton, 436 Mass. at 299. Moreover, facts over and above those in Melton are at play in this case. The defendant expressly communicated his intent to injure the officers both before and after the shooting. He shot in their direction, took affirmative steps (racking the gun) to fire again, and expressed his regret that he had not done more harm. We discern no violation of due process where the defendant shot indiscriminately in the direction of the officers with the stated intent to injure all of them. “Whatever the outer limits of the [transferred intent] doctrine may be, there is no due process violation here.” Commonwealth v. Oswaldo O., 94 Mass. App. Ct. 550, 556 (2018), citing Melton, supra at 298. Cf. Andrade, 488 Mass. at 529.

3. Post arrest statements. The defendant made a telephone call from Souza Baranowski Correctional Center on a recorded line and said (among other things), “I wish I was sitting here on twenty murders instead of ․ some attempted murders. ․ I wish I had killed every single one of them.” The defendant asserts that the redacted recording of the telephone call was improperly admitted because it was unduly prejudicial. The trial judge overruled his objection, stating “the statement is probative of the Defendant's state of mind. At the time of the alleged criminal conduct and his ongoing state of mind which is probative of consciousness of guilt.”

“It would be difficult to argue” that the content of the defendant's telephone call “was not prejudicial ․ [b]ut the question is not whether admission of the telephone call containing this language was prejudicial; it is rather whether it was unduly prejudicial, or more prejudicial than probative.” Commonwealth v. Rosa, 468 Mass. 231, 241 (2014). “[T]he substantive contents of the recorded call were directly relevant to the crimes charged. In particular, the recorded conversation included statements by the defendant about his participation in the shooting incident ․ [and reflected] consciousness of guilt.” Id. at 242. The statements were probative of the defendant's intent -- and in particular transferred intent -- with respect to all five officers, whom he explicitly stated he wished to harm both before and after the shooting. The judge did not abuse her discretion in determining that the statement was more probative than prejudicial. Id.

4. Motions to strike. After the parties had rested, the defendant brought two motions to strike physical exhibits as to which no objection had been lodged at trial. First, he sought to strike the rifle found at the scene because the serial number on the rifle recovered did not correspond with the serial number on the item tag of the rifle, and because of inconsistencies in the lab testing dates. Second, he sought to strike two magazines of ammunition found in the defendant's car on the grounds that inconsistencies in the testimony permitted an inference that the magazines found in the car were not the magazines tested in the lab. The judge denied both motions. She acknowledged that there were discrepancies in the evidence, but that there was sufficient “testimonial evidence identifying [the] items as the items that were seized from the scene.”

The denial of a motion to strike is reviewed for an abuse of discretion. Commonwealth v. Neves, 474 Mass. 355, 441 (2016); Commonwealth v. Dirring, 354 Mass. 523, 534 (1968). Leaving aside the propriety of making a motion to strike so late in the game, the judge did not abuse her discretion in determining that the evidence was sufficiently reliable to be considered by the jury. We agree that the inconsistencies in the evidence suggesting defects in the chain of custody went to weight, not admissibility. See Commonwealth v. Mack, 482 Mass. 311, 318-319 (2019). Cf. Commonwealth v. Diaz, 478 Mass. 481, 492 (2017).

Judgments affirmed.

FOOTNOTES

1.   The jury found the defendant not guilty of five counts of assault with intent to murder. After the verdicts were returned, the Commonwealth entered a nolle prosequi with respect to possession of a large capacity firearm, carrying a loaded firearm, and possession of a firearm to the extent that the indictment charged a second or subsequent firearms offense. In a subsequent jury-waived trial, the defendant was found guilty of being an armed career criminal with respect to three counts of the indictments.

2.   A discharged cartridge in the driveway matched those test-fired from the rifle taken at the scene.

3.   There was evidence that such conduct is a common response when a weapon malfunctions during reload.

4.   The defendant also contends that because the jury returned a general verdict that did not specify which theory of battery (immediate threatened battery or attempted battery) the jurors relied upon, the verdict must be vacated. However, “[b]ecause attempted battery and threatened battery are closely related ․ [w]e do not require the jury to signify by special verdict the theory of assault under which the verdict is returned.” Commonwealth v. Boodoosingh, 85 Mass. App. Ct. 902, 903-904 (2014), quoting Commonwealth v. Porro, 458 Mass. 526, 534 (2010).