Commonwealth v. Lewis, 987 N.E.2d 1218

Defendant was convicted of assault with intent to murder and multiple firearm offenses; the Appeals Court affirmed; review granted.
Troopers Demos and Keane stopped a Maxima suspected of drug activity; occupants acted nervously and smelled marijuana.
A black Beretta and a brownish-silver Colt were involved; Pho possessed the Beretta, the Colt, and drugs; the Colt was defaced.
Demos shot the defendant after the defendant turned with a gun; the defendant was wounded and taken to hospital.
Defendant argued the Colt was planted by Demos and offered alternative theories through Pho and Le; the defense was impeached.
The trial court admitted the ambiguous statement by the defendant and allowed the consciousness-of-guilt theory only after the defense proffered a theory of planting.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of intent element for assault with intent to murder	State relied on flight and weapon threats	No clear intent to kill; no prior hostility	Sufficient evidence of specific intent to kill
Admissibility of ambiguous statement as consciousness of guilt	Statement admissible under party-opponent rule	Ambiguous and could imply prior bad act	Admissible; ambiguity for jury to resolve
Prosecutor’s closing argument prejudice	Closing praised witnesses and argued defense as sham	Excessive, but within closing argument rights	Prejudicial error; new trial granted on all charges
Judge’s assault-with-intent-to-murder instruction	Model instruction acceptable with minor modification	Gun example improper	No prejudice; instruction remanded for potential non-gun example at retrial

Commonwealth v. Moran, 453 Mass. 880 (Mass. 2009) (inference of specific intent from facts and circumstances permitted)
Commonwealth v. Latimore, 378 Mass. 671 (Mass. 1979) (standard for sufficiency review; rational juror could find intent beyond reasonable doubt)
Commonwealth v. Smith, 461 Mass. 438 (Mass. 2012) (victim’s state of mind not always probative of defendant’s intent)