Commonwealth v. Buttimer
128 N.E.3d 74
Mass.2019Background
- Defendant stayed in victim's home, became angry after being asked to move out, and was later implicated by DNA, fingerprints, and other physical evidence in breaking into a locked gun safe and removing a .32-.40 Winchester lever‑action rifle and ammunition.
- Shortly after a single gunshot was heard, the victim was found mortally wounded on the stairs; autopsy showed a .22‑class projectile killed her at close range.
- A .223 Remington cartridge casing was recovered in the basement and, by firing‑pin analysis, linked to the Winchester rifle; the bullet in the victim was a smaller ".22 class" projectile compatible with being fired from a larger‑chamber gun.
- Defendant later emerged from nearby woods with the damaged Winchester rifle, pulled the lever, raised and aimed it at a paramedic and a police officer; an officer fired at defendant, who was subdued; the rifle’s wooden stock was broken and ballistics testing later required repairs to make it fire.
- Jury convicted defendant of first‑degree murder (deliberate premeditation), assault by means of a dangerous weapon (G. L. c. 265, § 15B(b)), armed assault with intent to murder (G. L. c. 265, § 18(b)), larceny of a firearm, and counts for possession without an FID card; defendant appealed raising sufficiency, operability, jury instruction, and G. L. c. 278, § 33E claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency to prove defendant shot and killed victim | Commonwealth: circumstantial evidence (DNA, theft, single shot, cartridge casing linked to rifle, motive/opportunity) supports conviction | Kafker: defendant argued expert could not conclusively match .22 projectile to the .223 casing/winchester; pointed to brother as alternative perpetrator | Conviction affirmed: reasonable inferences supported that the Winchester fired compatible cartridge and defendant was shooter; third‑party theory did not negate Commonwealth’s proof |
| Whether firearm must be operable for assault by means of a dangerous weapon (G. L. c. 265, § 15B) | Commonwealth: dangerous‑weapon element satisfied where a weapon reasonably appeared capable of causing serious injury | Defendant: argued convictions require proof rifle was operable | Court: No operability requirement; apparent ability suffices (Henson); rifle’s brandishing and aiming met the element |
| Whether firearm must be operable for armed assault with intent to murder (G. L. c. 265, § 18(b)) | Commonwealth: defendant’s conduct and ammunition support finding he believed weapon operable and had intent to kill | Defendant: argued weapon was inoperable so cannot have specific intent to murder or satisfy statute | Court: Statute does not require actual operability, but specific intent requires defendant believed weapon operable; evidence supported inference defendant believed it was operable when he aimed it |
| Jury instructions and claim for new trial under G. L. c. 278, § 33E | Defendant: judge gave confusing/incorrect operability instructions and should have instructed differently; sought new trial/reduction under § 33E | Commonwealth: errors were either correctable or harmless given evidence and benefited defendant where applicable | Court: Some instructions were erroneous (judge required operability for § 18(b) and flatly declared rifle a dangerous weapon), but errors were harmless or benefitted defendant; no new trial or § 33E relief warranted |
Key Cases Cited
- Commonwealth v. Latimore, 378 Mass. 671 (sets standard for viewing evidence in light most favorable to Commonwealth)
- Commonwealth v. Henson, 357 Mass. 686 (weapon need only have "apparent ability" to injure for assault by dangerous weapon)
- Commonwealth v. Powell, 433 Mass. 399 (definition/instruction for "dangerous weapon" when operability is in question)
- Commonwealth v. Morgan, 449 Mass. 343 (circumstantial evidence may suffice to identify shooter)
- Commonwealth v. Ayala, 481 Mass. 46 (standard for reviewing sufficiency of evidence)
- Musacchio v. United States, 136 S. Ct. 709 (an erroneous jury instruction that adds an element does not change statutory elements for sufficiency review)
- United States v. Zanghi, 189 F.3d 71 (patently incorrect instruction does not become law of the case)
- Commonwealth v. Pytou Heang, 458 Mass. 827 (admissibility/reliability of firing‑pin analysis)
- Commonwealth v. Bartholomew, 326 Mass. 218 (context for operability requirement in firearm‑possession statutes)