Commonwealth v. Lewis, 960 N.E.2d 324

On July 26, 2006, Troopers Demos and Keane stopped a vehicle with Le driving, Pho in passenger seat, and the defendant in the back; a gun was found on Pho.
Demos chased the defendant after he fled, observed the defendant reach toward his waistband, and then the defendant drew a gun and pointed it at Demos.
Demos shot the defendant after he did not drop the gun; a later shot incapacitated the defendant, who then surrendered the weapon.
The Colt pistol was recovered near the defendant after the shooting; ammunition remained in the clip, but the chamber was empty.
The defense contended Demos planted the Colt; Pho and Le testified for the defense and were impeached with prior records.
The defendant was convicted of assault with intent to murder and related firearms offenses; he appealed alleging insufficiency of intent, improper admission of a statement, and improper closing arguments.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there sufficient evidence of specific intent to kill	Le argues no specific intent to kill Demos existed.	Le contends the evidence shows at best intent to frighten or injure, not to kill.	Yes; reasonable inferences supported intent to kill.
Admissibility of defendant's statement	Statement admissible as rebuttal to defense theory that Demos planted the gun.	Statement ambiguous and prejudicial; admissibility flawed.	Admissible to rebut defense; no abuse of discretion.
Prosecutor's closing arguments were improper and prejudicial	Prosecutor repeatedly used improper characterizations and hypothetical insinuations.	Such remarks violated limits of argument and unfairly biased the jury.	Some statements improper; prejudicial impact not shown to change outcome; overall verdict affirmed.
Effect of improper arguments given trial judge's lack of curative instructions	Improper remarks were not promptly cured, risking prejudice.	Judge failed to give contemporaneous curative instructions.	Nevertheless, overwhelming evidence supported guilt; no reversal required.

Commonwealth v. Latimore, 378 Mass. 671 (Mass. 1979) (standard for reviewing sufficiency on motion for required finding)
Commonwealth v. Moran, 453 Mass. 880 (Mass. 2009) (intent may be inferred from the circumstances)
Commonwealth v. Williams, 312 Mass. 553 (Mass. 1942) (intent may be inferred from surrounding circumstances)
Commonwealth v. Henson, 394 Mass. 584 (Mass. 1985) (malice required for specific intent distinction)
Commonwealth v. Kozec, 399 Mass. 514 (Mass. 1987) (limits of prosecutor argument and prejudice analysis)
Commonwealth v. Santiago, 425 Mass. 491 (Mass. 1997) (prejudicial error when improper argument obscures evidence)
Commonwealth v. McCravy, 430 Mass. 758 (Mass. 2000) (prosecutor's improper argument should be rejected)
Commonwealth v. Smith, 387 Mass. 900 (Mass. 1983) (necessity of timely curative instructions for prejudicial evidence)