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SJC-11601

                    COMMONWEALTH   vs.   ADAM SIMPKINS.



       Suffolk.       October 9, 2014. - January 21, 2015.

     Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly,
                           & Hines, JJ.



Homicide. Practice, Criminal, Required finding, Double
     jeopardy. Supreme Judicial Court, Superintendence of
     inferior courts. Accessory and Principal. Firearms.



     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on October 7, 2013.

    The case was reported by Gants, J.


     Robert L. Sheketoff (Kirsten M. O'Brien with him) for the
defendant.
     Cailin M. Campbell, Assistant District Attorney (Mark T.
Lee, Assistant District Attorney, with her) for the
Commonwealth.


    SPINA, J.     In 2011, the defendant, Adam Simpkins, was

indicted on charges of murdering Cordell MacAfee, armed assault

with intent to murder Christopher Jones, accessory after the

fact to murder, and unlawful possession of firearms.      The jury
                                                                    2

found the defendant guilty of unlawful possession of firearms

and accessory after the fact.   The jury were unable to reach a

verdict on the indictments charging murder and armed assault

with intent to murder, and the judge declared a mistrial as to

those indictments.1   The Commonwealth requested that sentencing

on the indictments on which the defendant was found guilty be

postponed until he could be retried on the indictments that were

mistried.   The defendant, in turn, moved to dismiss the mistried

indictments on two theories of double jeopardy, namely, (1) his

motion for required findings of not guilty at the close of the

Commonwealth's case should have been allowed, and (2) the

conviction of accessory after the fact has collateral estoppel

effect barring retrial of the indictments alleging murder and

armed assault with intent to murder.   The defendant's motion was

denied.   The defendant filed this petition under G. L. c. 211,

§ 3, alleging that the denial of his motion to dismiss violated

principles of double jeopardy and that the Commonwealth, having


     1
       The defendant was tried jointly with three other men. At
the conclusion of the Commonwealth's case-in-chief, motions for
required findings of not guilty were allowed as to all charges
against two codefendants, but denied as to motions for required
findings of not guilty filed by the defendant and the third
codefendant. The third codefendant did not file a written
motion for a required finding of not guilty, but his oral motion
was denied. The jury were unable to reach a verdict with regard
to the charges against the third codefendant (the only one the
Commonwealth had identified as a shooter), and the judge
declared a mistrial as to him. Although not a matter of record,
we are informed that the third codefendant was acquitted at his
retrial.
                                                                     3

convicted the defendant of being an accessory after the fact,

was estopped as a matter of law from trying him as a principal

for the same crime.    See Costarelli v. Commonwealth, 374 Mass.

677, 679-680 (1978).   The single justice reserved and reported

the case, without decision, to the full court.    We hold that the

defendant's motion for required findings of not guilty as to the

indictments charging murder and armed assault with intent to

murder should have been allowed.    Because of this holding, we

need not address the issue of collateral estoppel.

    1.   Facts.    We recite the evidence in the light most

favorable to the Commonwealth.    See Commonwealth v. Latimore,

378 Mass. 671, 677 (1979).    On May 7, 2010, two men in matching

cream-colored hooded sweatshirts shot at MacAfee and Jones, his

brother, as the two sat on the front porch of a home on Roseland

Street in the Dorchester section of Boston.    One eyewitness

testified that the defendant was not one of the shooters.

Before the two men began shooting, one asked MacAfee and Jones,

"What's up now?"    MacAfee was struck by two bullets of differing

calibers, once in the neck and once in the stomach.    Jones was

not injured.   The shooters fled in the direction of Dorchester

Avenue and then to the defendant's residence on St. Mark's Road.

    MacAfee did not die immediately from his wounds but made

his way to Dorchester Avenue, where he collapsed in the street.

Police quickly responded and canvassed the neighborhood for the
                                                                      4

shooters.   Their investigation soon centered on the defendant's

residence, where an eyewitness indicated the shooters had

entered.    Police surrounded the house and maintained a watch for

the next several hours.    There is no evidence of any

communication between the occupants of the house and police.

The defendant was the first to emerge from the house, followed

by his three codefendants and one other person shortly

thereafter.

    One week prior to the shooting, MacAfee and Jones had been

involved in an incident with a group of men at a parking lot in

another section of Dorchester.    MacAfee and Jones had traveled

separately to this location.     Jones arrived first, and a group

of men that included the defendant approached him.       An

unspecified member of the group asked Jones, "What's up?"     Jones

responded, "Ain't shit.   What's up?"    At this point, MacAfee

arrived and asked if there was a problem.     An unspecified member

of the group replied that there was not.     The encounter ended

with the group getting into a white Ford Taurus with out-of-

State license plates.

    Shortly before the shooting on May 7, 2010, while sitting

on the porch with MacAfee, Jones noticed a white Ford Taurus

travel north on Dorchester Avenue, turn onto King Street, and

eventually park on St. Mark's Road.     This vehicle was the same

one present at the encounter one week earlier.     Still prior to
                                                                   5

the shooting, a group of men then got out of the Taurus and

entered the defendant's residence on St. Mark's Road.    During

the investigation, the police recovered a set of fingerprints

that matched those of the defendant from the left rear passenger

window of a white Ford Taurus with a New Hampshire registration

parked on St. Mark's Road.    The registered owner of this vehicle

was the brother of the one codefendant specifically accused of

being one of the shooters.    That codefendant was a frequent

visitor at the defendant's house.

    Based on eyewitness testimony, the jury could have found

that the defendant was among the men who got out of the white

Ford Taurus and went into the defendant's home before the

shooting, and that the defendant was not one of the shooters.

The shooters were seen in the area prior to the arrival of the

Taurus.   The defendant assisted in concealing the firearms used

in the shooting.

    2.    Discussion.   "[B]ecause double jeopardy principles

prohibit trying a defendant twice for the same offense, . . .

the defendant is entitled to a review of the legal sufficiency

of the evidence before another trial takes place" when the

defendant has moved for a required finding of not guilty and a

judge declares a mistrial after the jury fail to agree on a

verdict in the first trial (citations omitted).    Berry v.

Commonwealth, 393 Mass. 793, 798 (1985).    We view the evidence
                                                                    6

presented in the Commonwealth's case-in-chief in the light most

favorable to the Commonwealth and ask whether any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt.   Latimore, supra.

    At trial, the Commonwealth did not pursue the theory that

the defendant was one of the shooters.   Instead, the

Commonwealth sought to prove the defendant's guilt under a

theory of aiding and abetting the shooter.   Commonwealth v.

Zanetti, 454 Mass. 449, 467 (2009).   In order to convict the

defendant, the Commonwealth had to prove that the defendant

knowingly participated in the commission of the crime charged,

and that the defendant had or shared the required criminal

intent.   Id.

    The Commonwealth argues that the incident between the

victim and the group that included the defendant one week before

the shooting clearly can be linked to the shooting itself

because of the presence of the white Ford Taurus in both places

and the use of the words "What's up?" and "What's up now?"

separately during the incidents.   Additionally, the Commonwealth

argues that the temporal proximity of the arrival of the Taurus

on St. Mark's Road to the shooting, when coupled with the flight

of the shooters to the defendant's home, lends weight to the

conclusion that the defendant assisted in the planning of the
                                                                   7

enterprise.   We disagree that the evidence reflects the

essential elements of the crime here at issue.

    The Commonwealth claims that the incident the week prior to

the shooting and the presence of the white Ford Taurus at both

times constitute some evidence of motive and thus demonstrate

the requisite intent sufficient to survive a motion for a

required finding of not guilty.    We disagree.   There is

insufficient evidence about the nature of the encounter one week

before the shooting to imply an intent to kill or even a motive

to kill on the part of anyone involved.    Even were we to infer

from the presence of the Taurus that the shooters had been

present at that earlier encounter, we still would lack any

evidence demonstrating that they had any contact at all with the

defendant prior to the shooting.

    Moreover, even if the shooters were referring to the

encounter from the prior week when one asked, "What's up now?"

that is not enough to implicate the defendant in the killing.

Similarly, the presence of the white Ford Taurus at both

incidents may create some causal link between the two but, even

were we to assume that the defendant rode in the vehicle both

times, nothing further suggests knowing participation by the

defendant in the shooting itself or the planning thereof.

Instead, we are asked to draw an inference that the defendant

aided and abetted the shooters prior to the shooting because the
                                                                    8

shooting occurred after the defendant arrived home in the Ford

Taurus and then assisted in concealing the murder weapons by

putting them inside a wall in his home.   Such an inferential

leap asks too much.   Compare Commonwealth v. Swafford, 441 Mass.

329, 339 (2004).

    The defendant's role in hiding the murder weapons occurred

after the commission of the crimes and explains his indictment

charging him with being an accessory after the fact.   The

Commonwealth presented no fact which could prove beyond a

reasonable doubt that such involvement was contemplated prior to

the shooting.

    Seizing on our language in Zanetti, 454 Mass. at 470

(Appendix), that "aid or assistance . . . in escaping, if such

help becomes necessary" can suffice to impose criminal

liability, the Commonwealth urges that the flight of the

shooters to the defendant's home and the disposal of the weapons

are proof that the defendant gave aid and assistance to the

shooters in their escape.   Id. at 467.   That the defendant gave

aid and assistance to the shooters in their escape is true, but

this conduct was correctly charged as accessory after the fact,

not as "aiding and abetting."   The Commonwealth's argument

parses our holding incorrectly for purposes of imposing

liability under Zanetti for the crime of murder.   In the jury

instruction provided in that case, we said liability can be
                                                                     9

imposed on participation in a crime when the conduct "take[s]

the form of agreeing to stand by at, or near the scene of the

crime to act as a lookout, or to provide aid or assistance in

committing the crime, or in escaping, if such help becomes

necessary" (emphasis added).   Id. at 470 (Appendix).   We went on

to state:   "Mere knowledge that a crime is to be committed is

not sufficient to convict the defendant. . . .   Mere presence at

the scene of the crime is not enough to find a defendant guilty.

Presence alone does not establish a defendant's knowing

participation in the crime, even if a person knew about the

intended crime in advance and took no steps to prevent it. . . .

It is not enough to show that the defendant simply was present

when the crime was committed or that he . . . knew about it in

advance."   Id.

    The close proximity of the shooters to the defendant's home

prior to the murder and their flight simply do not support a

finding beyond a reasonable doubt of any express or implied

agreement by the defendant before or during the commission of

the crime to act in concert during or after the shooting.

Accordingly, as a matter of law, the Commonwealth did not

satisfy its burden of proof.   The defendant's motion for

required findings of not guilty on the charges of murder and

assault with intent to murder should have been allowed.
                                                                  10

    3.   Conclusion.   Because we hold that the motion for

required findings of not guilty was improperly denied, we do not

consider the defendant's double jeopardy claims.    We reverse the

denial of the motion for required findings of not guilty as to

the charges of murder and assault with intent to murder, and we

direct entry of verdicts of not guilty as to those indictments.

The case is remanded to the Superior Court for sentencing on the

indictments alleging illegal possession of firearms and

accessory after the fact to murder.

                                      So ordered.
