NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1252
COMMONWEALTH
vs.
MALIK A. KOVAL.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial the defendant, Malik Koval,
was convicted of ten counts of a twelve-count indictment: two
counts (one and two) of armed assault with intent to murder,
G. L. c. 265, § 18 (b); two counts (three and four) of assault
and battery by discharge of a firearm, G. L. c. 265, § 15E; two
counts (five and six) of assault and battery on a police
officer, G. L. c. 265, § 13D; possession of a firearm without a
firearm identification (FID) card, G. L. c. 269, § 10 (h) (count
seven); possession of a loaded firearm without a license, G. L.
c. 269, § 10 (a) & (n) (count eight); possession of ammunition
without an FID card, G. L. c. 269, § 10 (h) (1) (count nine);
and disturbing the peace, G. L. c. 272, § 53 (count ten). On appeal, the defendant challenges the denial of his motions for
required findings of not guilty of counts one through six.1 We
affirm in part and reverse in part.
Background. "We recite the facts that the [fact finder]
could have found, viewing them in the light most favorable to
the Commonwealth, and reserving some details for later
discussion." Commonwealth v. Buttimer, 482 Mass. 754, 756
(2019). In July 2018, police responded to the defendant's
street following reports from a witness that the defendant was
throwing and smashing glass bottles in the road. One of the
responding officers, Officer DeMiranda, checked that the
defendant was unarmed by asking him to raise his shirt and turn
around; seeing no weapons, DeMiranda began questioning him.
DeMiranda noticed that the defendant was agitated and sweating
and "was talking a lot," saying that people don't take care of
animals and "the police are killing [B]lack people." When
DeMiranda identified himself to the defendant as a Black person,
the defendant responded that the officer was helping the police.
Officer Moore arrived and saw DeMiranda questioning the
defendant, whom he also perceived was upset and sweating. While
1 The defendant did not challenge the conviction of count seven, possession of a firearm without an FID card; rather, he conceded that he possessed a gun, and the parties stipulated at trial that the defendant did not have an FID card or license to carry. The defendant also did not challenge the conviction of count ten (disturbing the peace).
2 Moore was speaking with the reporting witness, Moore noticed the
defendant's body language and composure change in a way that
made Moore concerned for the safety of bystanders and DeMiranda.
Moore walked over and positioned himself behind the defendant's
right shoulder.
When Moore moved into that position, the defendant became
more agitated; he looked back at Moore and said, "you can't
stand behind me like that." In response, Moore -- concerned
that the defendant's behavior would continue to escalate --
stepped toward the defendant and put his hands out to pat frisk
him for weapons.
Once Moore moved, the defendant started running away across
the lawn. Moore gave chase, but the defendant's mother twice
stepped in the way and was pushed by Moore. Eventually, Moore
grabbed the defendant as the defendant was tripping him. Seeing
the defendant standing over Moore, DeMiranda ran toward them.
The defendant ran into the house.
DeMiranda followed the defendant into the house and saw him
in the corner of the kitchen manipulating something. Concerned
the defendant was grabbing a knife, DeMiranda grabbed the
defendant in a "bear hug from behind" to secure him. The
defendant started pivoting around, then DeMiranda heard popping
sounds and felt a stinging in his chest. DeMiranda turned and
3 ran from the defendant, passing the front door and moving toward
a staircase to get out of the defendant's line of sight.
Moore, still outside, heard two loud pops coming from
inside the house. He took a couple of steps into the house and
saw DeMiranda running from Moore's right to his left. Moore
heard popping sounds continue as he saw DeMiranda running.
Moore turned to the left and retreated to seek cover outside.
He did not see where DeMiranda went. As Moore turned to leave,
he was grazed by a bullet on the back of his head.
On the stairs, DeMiranda realized he was being shot at and
drew his firearm. He immediately saw the defendant, pistol in
his hand pointed at DeMiranda, coming from the kitchen.
DeMiranda started shooting toward the defendant and the front
door and hit the defendant, who went out the front door.
DeMiranda did not see anyone standing in or near the door before
he fired.
Moore saw the defendant come out of the house, go down the
front steps, and take a few steps onto the front lawn before
lying down on his stomach at the base of the front steps.
DeMiranda (who was wearing a bulletproof vest) was shot in
the chest and in his back left shoulder. Moore suffered a
grazing bullet wound to the back of his head at the hairline.
The defendant suffered multiple gunshot wounds to various parts
4 of his body: left flank, right neck, right shoulder, left
wrist, right buttock, and right thigh.
After the shooting, the defendant was transported to the
hospital by ambulance accompanied by two detectives. One of the
detectives, Detective Loewen, had served as a school resource
officer at the high school the defendant attended and was
familiar with him. When Loewen asked the defendant what
happened, the defendant told the detective he became scared when
Moore came to stand behind him, because the police "kill people
like [him]," and he was not going to let them. After Loewen
responded "[t]hat's not how all cops act," the defendant said "I
wouldn't have shot you, Loewen. You are one of the good ones."
The defendant told the detectives that he "got mad when
[he] saw [his] mother get tossed to the ground, and that's when
[he] did it." Asked for clarification, the defendant said he
"ran into the house, grabbed the gun, and [he] shot them."
At the close of the testimony, the defendant moved for
required findings of not guilty of counts one through six,
maintaining that the Commonwealth failed to present evidence of
specific intent to kill, that the defendant was acting in self-
defense, and that there was insufficient evidence the defendant
shot Moore. The motion was denied. After placing the
defendant's medical records in evidence, the defense rested and
renewed the motion, which was again denied.
5 Discussion. "The standard for evaluating a motion for a
required finding of not guilty is 'whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.'" Commonwealth v.
James, 424 Mass. 770, 784 (1997), quoting Commonwealth v.
Latimore, 378 Mass. 671, 677 (1979). "[W]e keep in mind that
the evidence relied on to establish a defendant's guilt may be
entirely circumstantial, and that the inferences a [fact finder]
may draw from the evidence 'need only be reasonable and possible
and need not be necessary or inescapable'" (citation omitted).
Commonwealth v. Linton, 456 Mass. 534, 544 (2010), S.C., 483
Mass. 227 (2019). "To the extent that conflicting inferences
may be drawn from the evidence, it is for the [fact finder] to
decide which version to credit." Buttimer, 482 Mass. at 761,
quoting Commonwealth v. Webster, 480 Mass. 161, 167 (2018).
"Because the defendant moved for required findings at the close
of the Commonwealth's case and again at the close of all the
evidence," we also must "determine whether the Commonwealth's
position as to proof deteriorated after it closed its case."
Commonwealth v. O'Laughlin, 446 Mass. 188, 198 (2006), quoting
Commonwealth v. Sheline, 391 Mass. 279, 283 (1984).
1. Self-defense (armed assault with intent to murder,
assault and battery by means of a firearm, assault and battery
6 on a police officer). To convict the defendant of armed assault
with intent to murder, the Commonwealth must prove "three
elements: assault; intent to kill; and malice, which in this
context means an absence of justification, excuse, or
mitigation." Commonwealth v. Moran, 453 Mass. 880, 884 (2009).
See G. L. c. 265, § 18 (b). The defendant asserts that his
shootings of DeMiranda and Moore were justified by self-defense,
negating the necessary element of malice and entitling him to
required findings of not guilty of counts one and two.2
"'[J]ustification' and 'excuse' have been used synonymously
in criminal law to indicate the instances where homicide,
although intentional, is not unlawful," including lawful self-
defense.3 Commonwealth v. Nardone, 406 Mass. 123, 130 (1989).
"In a deadly force self-defense case, the Commonwealth may
establish the absence of proper use of self-defense by proving
2 This argument also goes to the sufficiency of the evidence for the additional shooting charges in counts three through six. Because the only disputed element for these charges is whether "the [conduct] was unjustified," Commonwealth v. Brule, 98 Mass. App. Ct. 89, 94 (2020), the sufficiency claim is foreclosed by our conclusion below that the Commonwealth proved the defendant's actions were not justified by self-defense.
3 The defendant does not argue that his actions were excused by mitigation, which includes "heat of passion induced by reasonable provocation, sudden combat, or excessive force in self-defense," Commonwealth v. Johnston, 446 Mass. 555, 558 (2006), and we therefore do not address that issue.
7 beyond a reasonable doubt at least one of the following
propositions:"
"(1) the defendant did not actually believe that he was in immediate danger of death or serious bodily harm from which he could save himself only by using deadly force; (2) a reasonable person in the defendant's position would not reasonably have believed that he was in immediate danger of death or serious bodily harm from which he could save himself only by using deadly force; (3) the defendant did not use or attempt to use all proper and reasonable means in the circumstances to avoid physical combat before resorting to the use of deadly force; or (4) the defendant used more force than was reasonably necessary in all the circumstances."
Commonwealth v. Grassie, 476 Mass. 202, 210 (2017), S.C., 482
Mass. 1017 (2019).
Here, the Commonwealth's evidence proved at least two of
these propositions, permitting "a rational [fact finder] to
conclude that the Commonwealth had proved beyond a reasonable
doubt that the defendant did not act in the proper exercise of
self-defense." Grassie, 476 Mass. at 210-211.
First, the evidence established that the defendant
anticipated a confrontation. A neighbor testified that on the
day of the incident the defendant "seemed angry" prior to police
officers arriving, and -- in the context of talking about the
police coming -- said he "would be ready." Compare Commonwealth
v. Bertrand, 385 Mass. 356, 362 (1982) (defendant not entitled
to self-defense instruction when he made statements to police
that he "anticipated a fight"). The defendant's statements
8 after the incident supported the inference that he went into his
house intending to get the gun and shoot the officers -- as he
did -- rather than to retreat. "Such a mental state is
inconsistent with the defendant harboring a subjective fear of
serious bodily injury from which he could only save himself by
using deadly force." Grassie, 476 Mass. at 211.
Second, "there was no evidence that [the defendant]
attempted to avoid further physical combat, nor that he was
unable to do so." Commonwealth v. Pike, 428 Mass. 393, 398
(1998). The defendant tripped one of the officers, then
retreated to his house to arm himself with a gun, escalating the
situation to one involving deadly force. See id. at 397-398
(defendant not entitled to self-defense instruction where, after
altercation ended, defendant re-engaged with victim and threw
radio at victim's head). See also Commonwealth v. Teixeira, 486
Mass. 617, 623 (2021) ("[a]cting out of a feeling of anger or
revenge resulting from the first stage of [an] altercation does
not support a contention that a defendant acted out of fear of
imminent danger of death or serious bodily harm" [quotation and
citation omitted]).
The defendant's fear of police officers does not change
this calculus; "[t]he proper standard for determining whether a
defendant's particular actions were justifiably undertaken in
self-defense depends on the level of force he used on his victim
9 and the circumstances that prompted those actions." Pike, 428
Mass. at 395. "Self-defense using deadly force is not
justified" in the absence of a threat "that would cause the
defendant serious bodily injury." Id. at 396. Cf. Commonwealth
v. Reed, 427 Mass. 100, 103 (1998) (evidence defendant "became
'scared'" insufficient for self-defense instruction). Even
though the defendant "reasonably perceived [him]self to be in
danger of personal harm" when approached by the officers, "[he]
nevertheless was not entitled to respond with a dangerous
weapon." Commonwealth v. Vickers, 60 Mass. App. Ct. 24, 29
(2003). See Pike, supra at 396 (for reasonable belief of
imminent danger of death "the victim must have committed some
overt act against the defendant").
Here, while each officer made physical contact with the
defendant -- Moore attempted to grab him and DeMiranda "bear
hugged" him -- the officers were "permitted to use force in
carrying out [their] official duties if such force [wa]s
necessary and reasonable." Commonwealth v. Asher, 471 Mass.
580, 588-589 (2015), quoting Instruction 9.260 of the Criminal
Model Jury Instructions for Use in the District Court, at 12
(2009). "The question whether an officer's use of force is
reasonable or necessary is one to be decided by the fact finder
considering all of the surrounding circumstances." Commonwealth
v. Garvey, 99 Mass. App. Ct. 139, 146 (2021). There was no
10 error in the trial judge's implicit conclusion that neither of
these contacts was an act of deadly force justifying deadly
force by the defendant.
The defendant contends that DeMiranda's pursuit into the
home was unlawful. The Commonwealth disagrees, countering that
once the defendant tackled Moore, the defendant could be
arrested for assaulting a police officer. We need not resolve
the issue because even were we to assume that DeMiranda's entry
to the home was not lawful, the defendant was not entitled to
shoot him. See Commonwealth v. Gomes, 59 Mass. App. Ct. 332,
339 (2003) (that officer grabbed defendant in his home to effect
an arrest was "neither conscience-shocking nor egregious").
"[A]bsent the use of excessive or unnecessary force by police
upon his person, an individual may not forcibly resist even an
unlawful entry into his residence by one who he knows or has
good reason to believe is a police officer engaged in the
performance of his duties." Id. at 333. See Commonwealth v.
Tyson, 104 Mass. App. Ct. 739, 745 (2024).4
Neither officer drew their firearm until after the
defendant began shooting. Viewing the facts in the light most
4 The defendant's citation to the "castle rule," see G. L. c. 278, § 8A, is unpersuasive; having retreated into the home to arm himself, the defendant was not then entitled to shoot responding officers who gave no sign of being "about to inflict great bodily injury or death."
11 favorable to the Commonwealth, "[a] rational [fact finder] could
thus infer that the defendant had no reasonable basis to believe
that he was in imminent danger of suffering death or serious
bodily harm from the victim[s] and that he had not 'availed all
proper means to avoid physical combat.'" Commonwealth v.
McAfee, 430 Mass. 483, 496 (1999), quoting Commonwealth v.
Niemic, 427 Mass. 718, 722 (1998).
2. Conviction of count one, armed assault with intent to
murder Moore. The defendant claims error in the denial of his
motion for a required finding on the indictment for armed
assault with intent to murder Moore, asserting that the evidence
tended equally to suggest that Moore was shot by DeMiranda. We
are not persuaded.
The evidence showed that (1) Moore was inside the front
door when he saw DeMiranda run from the kitchen to the living
room, and continued to hear shots as he turned to flee; (2) the
defendant quickly followed DeMiranda into the living room; (3)
DeMiranda did not see anyone but the defendant inside the house
before he fired at the defendant; (4) rounds were ejected from
the magazine of the defendant's gun and four casings recovered
inside the house were connected to that gun; and (5) Moore was
treated for a grazing gunshot wound to the back of his head.
Applying the familiar Latimore standard, this evidence,
taken together, adequately supports the conclusion that Moore
12 was not in the doorway when DeMiranda was firing at the
defendant and that the defendant shot the bullet that wounded
Moore in the back of his head. See Buttimer, 482 Mass. at 764
(evidence taken together "formed a mosaic of evidence"
sufficient to prove beyond reasonable doubt that defendant was
shooter [citation omitted]). See also Commonwealth v. Arroyo,
442 Mass. 135, 139 n.5 (2004) (shell casings found at scene
"tend to prove that the victims were shot" with gun possessed by
defendant, even where there was no definitive match between gun
and casings). Accordingly, "there was sufficient evidence for
the [judge] to find that the defendant committed assault" with
the intent to murder Moore. Buttimer, 482 Mass. at 770.
3. Motion at the close of the defendant's case. The proof
as to counts one through six did not deteriorate after the
presentation of the defendant's case. Although the defendant's
medical records reveal that he may have been experiencing mental
health issues at the time of this incident, those records do not
establish that the Commonwealth's evidence was "incredible or
conclusively incorrect" for any of the charges.5 O'Laughlin, 446
Mass. at 204, quoting Kater v. Commonwealth, 421 Mass. 17, 20
5 We also reject the defendant's claim that the submission of medical records required the Commonwealth to prove he was criminally responsible. This matter was resolved at a pretrial competency hearing at which the defendant's trial attorney agreed that criminal responsibility was not an issue. See Commonwealth v. Wright, 479 Mass. 124, 138 n.17 (2018).
13 (1995). The fact finder was "free to disbelieve the defendant's
account," and the judge "properly denied the defendant's renewed
motion for a required finding of not guilty" of counts one
through six. Commonwealth v. Walker, 401 Mass. 338, 343-344
(1987).
4. Count eight, possession of a loaded firearm without a
license.6 The Commonwealth was required to "prove that the
defendant, (1) possessed, (2) a firearm capable of discharging a
shot or bullet, (3) outside his residence or place of business
(4) without a license or an FID card." Commonwealth v.
McCollum, 79 Mass. App. Ct. 239, 247 (2011). Only the third
element is at issue: the parties stipulated that the defendant
did not have a license or FID card and the evidence showed the
defendant possessed a gun capable of firing.
The defendant's "residence" includes his home and the
outside areas "over which [he] retains exclusive control."
Commonwealth v. Coren, 437 Mass. 723, 734 (2002). "Public
streets, sidewalks, and common areas to which occupants of
multiple dwellings have access, on the other hand, are not
considered part of one's residence." Id.
6 To the extent that the defendant maintains there was a defect in this indictment, "[f]ailing to object to such a defect prior to trial ordinarily waives any argument pertaining to that defect." Commonwealth v. Lamont L., 438 Mass. 842, 845 (2003). See G. L. c. 277, § 47A. In any event, given our conclusion, we need not reach this issue.
14 The defendant lived in a single-family home with his mother
and stepfather. The trial evidence showed he did not travel
farther than a few steps from his front door with the gun,
remaining on the front lawn of the home. Compare Commonwealth
v. Horne, 466 Mass. 440, 452 (2013) (defendant "confronted
[victim] in the middle of the street near the defendant's
home"); Commonwealth v. Seay, 376 Mass. 735, 743 (1978) (G. L.
c. 269, § 10 [a], "prohibits the unlicensed carrying of a
firearm in a foyer or other common area of an apartment building
by one who merely happens to rent an apartment therein"). The
evidence "was insufficient to sustain the Commonwealth's burden
of proving beyond a reasonable doubt that the gun was possessed
outside of the residence." Coren, 437 Mass. at 735. It was
error to deny the defendant's motion for a required finding on
this count.
5. Count nine, unlicensed possession of ammunition. "To
convict for unlicensed possession of ammunition, the
Commonwealth must show that the defendant (1) possessed, (2)
ammunition designed for use in any firearm, and (3) without
complying with the FID card requirements as provided by the
applicable statute. G. L. c. 269, § 10 (h)." McCollum, 79
Mass. App. Ct. at 245. Since the ammunition was recovered from
one of the upstairs bedrooms in the defendant's house, the
Commonwealth must show constructive possession, which "requires
15 only proof of knowledge coupled with the ability and intention
to exercise dominion and control" (quotations and citation
omitted). Commonwealth v. Tiscione, 482 Mass. 485, 494 (2019).
"This proof 'may be established by circumstantial evidence, and
the inferences that can be drawn therefrom.'" Id., quoting
Commonwealth v. Dagraca-Teixeira, 471 Mass. 1002, 1004 (2015).
"[A] sufficiency of the evidence evaluation for constructive
possession is necessarily fact-specific, and turns on the
totality of the evidence." Commonwealth v. Santana, 95 Mass.
App. Ct. 265, 268 (2019), citing Commonwealth v. Albano, 373
Mass. 132, 134 (1977).
The evidence here was inadequate. Testimony established
that the defendant was one of at least three occupants of the
house where the ammunition was found, the defendant used a gun,
and the gun was loaded when it was recovered by Officer
DeMiranda. There was no evidence that tied the ammunition found
in an upstairs bedroom to the defendant or to the firearm.
There was no evidence about the room in which the ammunition was
found -- no testimony, for example, regarding the clothes in the
closet or dressers, or that any documents were found in the room
bearing the defendant's name -- nor any ballistics or police
testimony that the ammunition was of a type or size consistent
with the firearm the defendant used. The Commonwealth suggests
that no other firearms were recovered from the home. This is
16 not enough. See Santana, 95 Mass. App. Ct. at 269-270. See
also Commonwealth v. Frongillo, 66 Mass. App. Ct. 677, 678-681
(2006) (evidence from which jury reasonably could infer that
defendant resided in apartment, or at least spent great deal of
time there, combined with men's clothing in closet where
firearms were found and evidence that husband of defendant's
fiancé had moved out, sufficient to permit reasonable inference
that defendant had knowledge of firearms and ammunition found in
closet and ability to control them, but inadequate to show
intention to do so); Commonwealth v. Brown, 50 Mass. App. Ct.
253, 257 (2000) (probability that one of three defendants fired
handgun insufficient to implicate any specific defendant or
convict others of joint and constructive possession).
Conclusion. The judgments of conviction of counts eight
and nine, possession of a loaded firearm without a license and
of ammunition without an FID card, are reversed, the findings on
17 those counts are set aside, and judgments shall enter for the
defendant. The remaining judgments are affirmed.
So ordered.
By the Court (Englander, Hershfang & Brennan, JJ.7),
Clerk
Entered: March 11, 2025.
7 The panelists are listed in order of seniority.