COMMONWEALTH vs. MICHAEL L. STALLINGS.

RUBIN, J. The defendant was convicted of involuntary manslaughter, in violation of G. L. c. 265, § 13, and unlawful possession of a firearm, in violation of G. L. c. 269, § 10 (a). The victim died of an asthma attack apparently triggered by flight from gunshots that sparked return gunfire. After trial, the judge ordered a new trial on grounds of ineffective assistance of counsel. The Commonwealth appealed from that order, and a panel of

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this court reversed. Commonwealth v. Stallings, 93 Mass. App. Ct. 1119 (2018). The defendant now appeals from the judgments of conviction, arguing that there was not sufficient evidence to prove he was the first shooter rather than the shooter who returned fire. [Note 1]

Background. On the night of January 23, 2012, Kelvin Rowell suffered an ultimately fatal asthma attack after running away from gunfire on Blue Hill Avenue in Boston. The trial evidence showed the following: video surveillance from Blue Hill Avenue showed that around 7:54 p.m., the time shown on the video's date stamp, two men stood on the sidewalk in front of 522 Blue Hill Avenue, between Supple Road and Pasadena Street. Trial testimony indicated that they were Kelvin Rowell and Derrick Rogers. Rowell and Rogers were from the Castlegate Road neighborhood, and this area on Blue Hill Avenue sat in the heart of Castlegate Road gang territory. The defendant, however, was a known member of a rival gang, H-Block. That night, the defendant, who was on probation, came from his own neighborhood into the Castlegate neighborhood. There was evidence that he was seen before the shooting, driving a car on Blue Hill Avenue, past Rowell, Rogers, James Thornton, and Louis Bodden-Maximo, coming from the direction of Pasadena Street.

At 7:56 p.m. by the video date stamp, Rowell and Rogers, standing on the sidewalk in front of 522 Blue Hill Avenue, were joined by a third person. This person remained with Rogers and Rowell in front of 522 Blue Hill Avenue until shooting began around 7:58 p.m. Security officers Jason Wright and Frederick Sharp, both witnesses at trial, testified that just before 8 p.m., they were parked in front of 534 Blue Hill Avenue and they observed the group of three by 522 Blue Hill Avenue. Sharp testified that just before 8 p.m., he saw a tall man in a "black hoodie" approach the group from Supple Road, north of 522 Blue Hill Avenue, and begin firing at them.

The defendant wore a global positioning system (GPS) monitor as part of his probation that periodically reported his location from 7:45 p.m. to 8:14 p.m. Although the Commonwealth's evidence indicated that the GPS was not precise enough to report a specific location to within a range of feet, and that its accuracy may "range a little bit" in poor weather conditions, testimony also

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described this GPS monitoring as accurate to a specific address. According to the defendant's GPS monitor, the defendant approached Blue Hill Avenue from Wayne Street around 7:56 p.m. and then traveled north up Blue Hill Avenue toward Castlegate Road for approximately one block. The GPS monitor indicated that he then traveled back down Blue Hill Avenue, eventually passing the intersection of Blue Hill Avenue and Supple Road and heading south down Blue Hill Avenue. Thornton also testified that the defendant approached Rowell and Rogers on Blue Hill Avenue and confronted them immediately before shots were fired.

When the first shooter began to fire down Blue Hill Avenue, the video surveillance showed, and Wright and Sharp saw, Rogers and Rowell sprinting away from the first shooter, running down the sidewalk toward Pasadena Street, south of 522 Blue Hill Avenue. Rogers testified that he and Rowell ran when they first heard gunshots; they fled down Blue Hill Avenue, rounded the corner onto Pasadena Street, and sought shelter in a nearby house. Rowell, running away from the gunfire, suffered an asthma attack and collapsed in front of the house on Pasadena Street. He ultimately died as a result.

While Rowell and Rogers ran, the third member of their group returned fire directly after the first shooter fired his first five rounds. Sharp saw this second shooter step into the bike lane on Blue Hill Avenue and fire eight rounds at the first shooter. Wright testified that the second shooter was firing as he moved across Blue Hill Avenue toward Nazing Street, south of 522 Blue Hill Avenue. A forensic expert testified, based on analysis of a bullet hole in the sheet metal of a white sport utility vehicle (SUV) parked facing north on Blue Hill Avenue between 522 Blue Hill Avenue and Supple Road that was found and photographed by the police at the scene, that at least one shot was fired from the area behind the SUV toward the front at an angle, presumably by the second shooter.

From the scene of the shooting, police recovered three shell casings, all from the same weapon, on Blue Hill Avenue, although as we explain, there was a dispute at trial about whether these casings could have come from the first or second shooter. Two were found in the bike lane and one in the street just north of 522 Blue Hill Avenue, near the front of the parked, white SUV. They found a detachable magazine that held .40 caliber cartridges and a single live .40 caliber round. Police also photographed the bullet holes in

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cars parked on the east side of Blue Hill Avenue. The shell casings were found to have come from a .40 caliber Smith & Wesson semiautomatic pistol.

Months later, in August of 2012, police recovered a .40 caliber semiautomatic pistol from the defendant. The Commonwealth's firearms analyst, Christopher Finn, conducted ballistics testing on this pistol, comparing the Blue Hill Avenue shell casings to those test-fired from the defendant's pistol. This testing revealed the Blue Hill Avenue shell casings were fired from the .40 caliber semiautomatic pistol seized from the defendant.

The defendant was ultimately convicted of involuntary manslaughter for causing the death of Rowell. The defendant now appeals on three grounds. For the following reasons, we affirm.

Analysis. 1. The defendant argues first that the evidence presented at trial was insufficient to support his involuntary manslaughter conviction because the Commonwealth did not prove beyond a reasonable doubt that the defendant was the first person to fire shots on Blue Hill Avenue.

To begin with, the defendant contends that unless the jury could have found beyond a reasonable doubt that the defendant was the first shooter, they could not have found that he caused Rowell's death. We agree. The running that triggered Rowell's fatal asthma attack was caused by the initial gunshots. On the evidence here, the shots fired after Rowell was already running away could not have been found beyond a reasonable doubt to have played a role in the chain of causation leading to his death. Indeed, in the previous successful appeal by the Commonwealth in this case, our decision depended on the fact that if the defendant had not been the first shooter, he would have been acquitted. In that appeal from the trial judge's allowance of a motion for a new trial on ineffective assistance of counsel grounds, a panel of this court reversed specifically because the defendant's "causation theory" had strength. Counsel pursued a defense theory that the defendant's guilt on the involuntary manslaughter charge depended on the defendant being found the first shooter, instead of a self-defense theory which could have still allowed a conviction even if he were the second shooter. Stallings, 93 Mass. App. Ct. at 1119. The panel held that there was no ineffective assistance of counsel because this causation theory, the same one that the defendant now argues on appeal, "would have resulted in acquittal if successful" at trial. Id.

Turning to whether the evidence was sufficient to support a conclusion beyond a reasonable doubt that the defendant

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was the first shooter, we must view the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). In point of fact, the primary factual dispute at trial was whether the defendant was the first shooter, who approached from Supple Road and fired at the group, or the second shooter, who was initially standing with Rogers and Rowell in front of 522 Blue Hill Avenue. The Commonwealth argued that this second shooter was Louis Bodden-Maximo, a Castlegate gang member. The Commonwealth argued that the defendant had fired on the group of Rogers, Rowell, and Bodden-Maximo and that he started firing from near the intersection of Blue Hill Avenue and Supple Road. The defendant argued that he had instead been the third member of the group depicted in the video surveillance, and had been speaking with Rowell and Rogers until Bodden-Maximo began firing at him.

Viewed in the required light, we conclude that the evidence presented to the jury was sufficient to find beyond a reasonable doubt that the defendant was the first shooter (and that Bodden-Maximo was the second shooter). First, James Thornton, a witness from the Castlegate neighborhood called by the Commonwealth at trial, had previously testified before the grand jury that he had been present on Blue Hill Avenue on the night of the shooting and had seen the defendant approach Rowell, Rogers, and Bodden-Maximo and pull something shiny out of his waistband. He testified before the grand jury that he heard the first gunshots immediately thereafter. Thornton's grand jury testimony was admitted as substantive evidence under Commonwealth v. Daye, 393 Mass. 55, 71-72 (1984), when, the judge found, Thornton feigned memory loss at trial.

The gang affiliations of the defendant and Bodden-Maximo also support a finding that the defendant was the first shooter. Officer Brian Johnson of the Boston Police Department's gang unit, testified that the defendant was a member of H-Block. H-Block was engaged in a tense rivalry with the neighboring Castlegate Road gang. Rowell and Rogers lived in the Castlegate neighborhood, and Bodden-Maximo was a known Castlegate gang member. The jury could have found that the defendant was the first shooter because he came armed to the territory of a rival gang, had a motive to attack a member of that rival gang, and was not likely to be standing armed in such territory for two and one-half minutes talking with individuals who lived there and were at least friendly with members of that rival gang.

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There is also forensic evidence supporting the contention that the defendant was the first shooter. Although the defendant claims the shell casings that admittedly came from his gun were found from where the second shooter fired, they were on the ground in front of the white SUV parked on Blue Hill Avenue between 522 Blue Hill Avenue and Supple Road. The jury could have found their location consistent with the location of the first shooter as described by Wright and Sharp. Neither Sharp nor Wright testified as to how far south on Blue Hill Avenue the second shooter stood but Sharp's testimony suggested that the first shooter was firing down Blue Hill Avenue toward the second shooter, who was standing to the south and firing back north toward Supple Road. The defendant could have fired in the location where his shell casings were found and still have been the first shooter aiming south down the street toward Bodden-Maximo, who could have been standing farther south, closer to Pasadena Street.

Indeed, testimony by the Commonwealth's witness Kevin Kosiorek suggested that this was the case. A supervisor in the Boston police crime laboratory's criminalistics section who specialized in shooting reconstructions, Kosiorek analyzed a photograph of a bullet hole in the white SUV parked along Blue Hill Avenue. Based on the overall shape and characteristics of the damage around the bullet hole, he concluded that the bullet that struck the SUV traveled in the direction from the back of the car to the front. The jury could have found, as the Commonwealth argued at trial, that this evidence meant that the second shooter returned fire from a point south of the SUV, firing northward toward the first shooter, who was standing where the shell casings were found.

Finally, the video surveillance showed that the second shooter was essentially stationary in front of 522 Blue Hill Avenue for approximately two and one-half minutes (from 7:55:58 p.m. to 7:58:19 p.m.) before the first shooter opened fire. The defendant's GPS monitor [Note 2] suggested that at no point did the defendant stand still for over two minutes, either at 522 Blue Hill Avenue, or elsewhere, during the relevant time period. [Note 3] In light of all this evidence, a reasonable jury could have found that the defendant

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was the first shooter, not the third member of Rowell's and Rogers's group.

The defendant argues that Thornton's grand jury testimony is the only evidence supporting a conclusion that the defendant was the first shooter and that the conviction therefore must be reversed. See Commonwealth v. Clements, 436 Mass. 190, 193 & n.3 (2002) (corroborating evidence is required when grand jury testimony concerns essential element of crime but that evidence alone need not be sufficient to prove that element). But the other evidence described above sufficiently corroborates the grand jury testimony to support the conviction. He also argues that the grand jury testimony cannot be relied upon because it was "overwhelmingly outweighed by evidence that the defendant was the second shooter," and he points to Thornton's prior inconsistent statements to police, made close in time to the shootings, in which he said that Bodden-Maximo fired the first shots, and to the location of the shell casings, which, he argues, definitively proves that the defendant was the second shooter. Given the evidence outlined above, including the fact that the significance of the location in which the shell casings were found is ambiguous, to the extent this argument might have force despite the other evidence outlined above, we conclude it lacks merit.

2. The defendant next argues that the trial judge committed reversible error by failing to instruct the jury that the defendant must be found to be the first shooter in order to be the cause of Rowell's death. We disagree.

The jury were properly instructed that they may only find that the defendant's act was the cause of Rowell's death "where the act in a natural and continuous sequence result[s] in death and without such act by the defendant death would not have occurred." See Commonwealth v. Askew, 404 Mass. 532, 535 (1989); Commonwealth v. Rhoades, 379 Mass. 810, 825 (1980). The defendant argued unequivocally before the jury that only the first shooter could have been the legal cause of Rowell's death and that if the jury found the defendant to be the second shooter, they could not convict him of involuntary manslaughter. The Commonwealth did not disagree and argued its case, both in its opening and closing statements, on the theory that the defendant was the first shooter. [Note 4] Although the Commonwealth argues that the defendant's conviction

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could be sustained even if he were the second shooter, an argument we have rejected, the Commonwealth did not argue to the jury that the defendant could be responsible for Rowell's death even if he were the second shooter.

We presume that the jury followed the instructions given by the trial judge. See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997). Assuming they did so, and given the way the case was tried and argued before them, the jury could have convicted the defendant only if they first found that he was the first shooter. Although there would have been no error in specifically instructing the jury on this point, we see no abuse of discretion in the judge's failure to do so.

3. Finally, the defendant seeks to challenge an order issued by a single justice of the Supreme Judicial Court, in response to an emergency petition filed by the Commonwealth pursuant to G. L. c. 211, § 3, seeking review of an interlocutory order of the trial judge. Specifically, the single justice ordered that "[t]he jury should not be instructed that before they may consider the grand jury testimony of Mr. Thornton as substantive evidence of identification, they must make a preliminary or separate finding that other evidence corroborates the identification of the defendant as the perpetrator." The defendant argues that this was error, as made clear in the subsequent decision in Commonwealth v. White, 475 Mass. 724, 741 (2016) (upon defendant's request, jury should have been instructed regarding Commonwealth's obligation to provide corroborating evidence because "while it is the judge's role to determine whether sufficient corroborative evidence has been presented, the jury must decide whether to credit that evidence").

We lack jurisdiction, however, to hear an appeal from an order of the single justice of the Supreme Judicial Court entered under G. L. c. 211, § 3, which provides only for petitions of which the Supreme Judicial Court "of course, has exclusive jurisdiction." McMenimen v. Passatempo, 452 Mass. 178, 190 (2008). Although the order of the single justice might be viewed as, in some sense, interlocutory, "[a]n action seeking relief under G. L. c. 211, § 3, is regarded as a new and separate civil action in the county court [i.e., the Supreme Judicial Court for Suffolk County]. Though there often is an interlocutory ruling from a trial court at issue [in G. L. c. 211, § 3, actions], that is not necessarily the case. Significantly,

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the G. L. c. 211, § 3, action culminates in a final 'judgment' in the county court, and there is a statute that renders that judgment appealable as a matter of right. G. L. c. 231, § 114 ('A party aggrieved by a final judgment of a single justice of [the Supreme Judicial Court] may appeal therefrom to the full court . . .')." Id. at 191. "[A] judgment of a single justice of this court [i.e., the Supreme Judicial Court] on a matter under G. L. c. 211, § 3, is appealable to the full court." Id. at 192. See Carrasquillo v. Commonwealth, 422 Mass. 1014, 1014 (1996) ("An appeal from a ruling under G. L. c. 211, § 3, such as is involved here, lies with the full bench of the Supreme Judicial Court"). Such a judgment is not appealable to the Appeals Court.

Judgments affirmed.