Appeals Court Reverses Shooting Conviction Based on Insufficient Evidence

March 31, 2014
By Parker Scheer LLP on March 31, 2014 1:53 PM |

In Commonwealth v. Lobo, the defendant was convicted of two counts of assault and battery by means of a dangerous weapon, after he was tried for the shootings of two brothers on Hancock Street in Brockton in 2005. At trial, the Commonwealth called only one eyewitness to testify. That witness, the victims' father, testified that he heard rapid gunshots fired while a white car was driving in front of him and his sons. He did not see a gun, a muzzle flash, or the faces of any of the people in the car. He was unable to say whether the gunshot sounds had come from the area of the white car, but assumed that they had.

The father further testified that when the white car drove away, he discovered that his sons had both been shot. He then heard the car return at a high speed and a car door open. He momentarily saw a male, who he later identified as the defendant, standing outside of the car. The father testified that he then heard two or three more shots fired, but he could not tell where those shots had come from. He never saw a gun in the defendant's possession.

Shortly after the white car sped away, the police stopped it, finding three occupants inside. The defendant was in the backseat with a cut on his hand, and he told the police that he was just on Hancock Street and had been shot. During a search of the car, the police did not find a gun or shell casings. Nor did the police or their gun-sniffing dogs find a discarded gun between the scene of the shooting and the location where the police stopped the white car. Although the police testified that the driver of the white car seemed to have an odor of fresh gun powder coming from him, the police did not have the clothes of any of the vehicle's occupants tested for gun powder residue.

Based on this evidence, the jury convicted the defendant for the shootings. The Appeals Court reviewed the evidence and disagreed with the verdict. According to the court, the evidence could reasonably have suggested to the jury that the victims were injured by shots that were fired at the same time the white car passed; that those shots were fired by someone in the white car; that the defendant was in the back seat of the white car at the time of the shooting; and that the defendant was the person whom the father saw standing outside of the car before he heard the second round of shots. However, the Appeals Court concluded that these findings were insufficient to find the defendant guilty beyond a reasonable doubt.

The Commonwealth was required to prove that the defendant was to person who fired the initial shots, which were the shots that injured the brothers. But the Commonwealth's own evidence suggested that, if any person in the white car fired the shots, it was more likely to be the driver, who was the only occupant from whom the police detected a smell of fresh gun powder. And, because the Commonwealth only pursued a theory of principal liability and not joint venture liability - and principal liability was the only theory on which the jury had been instructed - conviction of the defendant required that evidence be sufficient to establish that the defendant was in fact the person who shot the gun.

Based upon the evidence presented at trial, the Appeals Court found that "no rational trier of fact could conclude beyond a reasonable doubt that the defendant, rather than another party present at the scene [shot the victims]. For the jury to find the facts according to the Commonwealth's theory of principal liability, they inevitably had to engage in impermissible conjecture or surmise." Accordingly, the Appeals Court concluded that there was insufficient evidence for the jury to convict the defendant on a theory of principal liability, and therefore vacated the judgment, set aside the jury verdict, and ordered that judgment enter in favor of the defendant.