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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
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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
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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.
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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.