Commonwealth v. Horne, 995 N.E.2d 773

Eight bullets fired at a first-floor Springfield apartment window; victim Brittany Perez killed; blinds and curtains blocked view.
Defendant fled scene; convicted of second-degree murder, possession of ammunition without a firearm ID card, and two counts of unlicensed carrying of a rifle outside residence.
Defense challenged trial on involuntary manslaughter instruction, joint venture instruction, and credibility-impeachment of a defense witness; argued duplicative rifle convictions.
Court held error in declining involuntary manslaughter instruction; evidence could support wanton/reckless conduct short of plain and strong likelihood of death; new trial on second-degree murder required.
Firearm-joint venture instruction deemed proper given evidence of another participant; not error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Involuntary manslaughter instruction required?	Commonwealth contends evidence supported involuntary manslaughter.	Duffly argues no reasonable view supports involuntary manslaughter.	New trial required for second-degree murder; involuntary manslaughter instruction warranted.
Validity of joint venture instruction?	Commonwealth asserts sufficient evidence of joint participation.	Duffly argues lack of evidence of more than one participant.	Instruction proper; no error in joint venture instruction.
Impeachment by silence as to exculpatory information?	Commonwealth argues proper foundation for impeachment established.	Houle’s silence should not be admissible without adequate foundation.	No error; proper foundation shown; impeachment allowed.
Duplicative firearms convictions under G. L. c. 269, § 10 (a)?	Commonwealth contends two separate violations for continuous possession outside residence.	Duffly contends two convictions for same continuous possession.	Two convictions valid; continuous possession doctrine applied; unit of prosecution defined.

Commonwealth v. Lyons, 444 Mass. 289 (Mass. 2005) (distinguishes plain and strong likelihood of death vs. high likelihood of substantial harm; involuntary manslaughter instruction may be required)
Commonwealth v. Sires, 413 Mass. 292 (Mass. 1992) (defines plain and strong likelihood standard for death in murder based on third prong malice)
Commonwealth v. Jenks, 426 Mass. 582 (Mass. 1998) (firing toward persons yields plain and strong likelihood of death; limits on mere proximity)
Commonwealth v. Braley, 449 Mass. 316 (Mass. 2007) (discusses when firing near vs at individuals constitutes murder or manslaughter)
Commonwealth v. Latimore, 378 Mass. 671 (Mass. 1979) (sufficiency standard for joint venture participation)
Commonwealth v. Hart, 455 Mass. 230 (Mass. 2009) (impeachment foundations for witness silence; credibility impact)
Commonwealth v. Cintron, 435 Mass. 509 (Mass. 2001) (foundation requirements for impeachment based on prior silence)
Commonwealth v. Gagnon, 408 Mass. 185 (Mass. 1990) (scope of cross-examination for credibility determinations)
In re Snow, 120 U.S. 274 (U.S. 1887) (continuous offense concept for multi-year charges)
United States v. Jones, 533 F.2d 1387 (6th Cir. 1976) (possession as continuing offense; unit of prosecution)