Petition for Writ of Certiorari — Antonio Rodrigues, Petitioner v. Massachusetts

Supreme Court briefMar 19, 2020

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PETITION APPENDIX

Commonwealth v. DaCosta, 96 Mass App Ct 105,

132 N.E.3d 1067 (2019)

Commonwealth v. Rodrigues, 483 Mass 1107 (2010)

Caution

As of: March 13, 2020 5:03 PM Z

Commonwealth v. DaCosta

Appeals Court of Massachusetts

April 1, 2019, Argued; September 19, 2019, Decided

Nos, 17-P-201 & 17-P-234.

Reporter

96 Mass. App. Ct. 105 *; 132 N.E.3d 1067 **; 2019 Mass. App. LEXIS 121 ***; 2019 WL

4509098

COMMONWEALTH vs. HAILTON DACOSTA

(and a companion case?),

Subsequent History: Appeal denied by

Commonwealth v. Dacosta, 483 Mass.

1105, 2019 Mass. LEXIS 688 (Mass.,

Nov. 14, 2019)

Prior History: [***1] Bristol.

INDICTMENTS found and returned in the

Superior Court Depart- [*106] ment on

February 27, 2014, and April 11, 2014.

The cases were tried before Renee P.

Dupuis, J.

Commonwealth v. Dacosta, 91 Mass.

App. Ct. 1123, 2017 Mass. App. Unpub.

LEXIS 528, 86 N.E.3d 248 (May 22,

2017)

Disposition: Judgments affirmed.

1 Commonwealth vs. Antonio Rodrigues.

Counsel: Jennifer H. O'Brien for Hailton

DaCosta.

Stephen C. Nadeau, Assistant District

Attorney, for the Commonwealth.

John M. Thompson (Linda J. Thompson

also present) for Antonio Rodrigues.

Judges: Present: KINDER, SINGH, &

McDonouGh, JJ.

Opinion by: KINDER

Opinion

[**1072] KINDER, J. On November

23, 2013, defendants Hailton DaCosta

and Antonio Rodrigues, together with

Samir Baptista and Elito Mendes,

executed a plan to rob drug dealer

96 Mass. App. Ct. 105, *106; 132 N.E.3d 1067, **1072; 2019 Mass. App. LEXIS 121, ***1

Sharone Stafford in New _ Bedford.

Stafford was fatally shot by DaCosta

during the botched robbery. The

defendants were indicted for murder, G.

L.c. 265, & 1; armed assault with intent

to rob, G. Ll. c. 265, § 18 (b): and

unlawfully possessing a firearm, G. L. c.

269, § 10 (a). Baptista and Mendes

agreed to cooperate with the

Commonwealth, pleaded guilty to

various offenses, and testified against

the defendants at a joint trial. A Superior

Court jury found the defendants guilty of

unlawful [***2] possession of a

firearm and felony-murder in the second

degree.2,3

The defendants' principal claim of error

on appeal is that the judge failed to

conduct individual voir dire of the jurors

to determine the extent and effect of the

jury's exposure to excluded evidence

during deliberations, as required by

Commonwealth v. Jackson, 376 Mass.

790. 383 N.E.2d 835 (1978), and its

progeny. The judge further erred, they

claim, in failing to declare a mistrial on

that basis. The defendants raise several

other claims, including the sufficiency of

the evidence, the propriety of the

prosecutor's closing argument, and the

failure to instruct on felony-murder and

merger. We affirm.

Background. 1. The murder. We

summarize the evidence in the light

most favorable to the Commonwealth,

see Commonwealth _v. Latimore. 378

Mass. 671, 677-678, 393 _N.E.2d 370

(1979), reserving some facts for our

2 The predicate felony for felony-murder in the second

degree was armed assault with intent to rob.

3 We note that felony-murder in the second degree has

been abolished as a separate theory. See Model Jury

Instructions on Homicide (2018).

discussion of the issues. In 2013,

Baptista regularly used “crack” cocaine

purchased on many occasions from the

defendants, Mendes, and the victim. In

the week before the murder, Rodrigues

told Baptista that he (Rodrigues)

planned to rob other drug dealers to “get

the[m] off the streets.” On November

23, [*107] 2013, Baptista bought

cocaine from Rodrigues in the parking lot

of the Portuguese Sports Club (club) in

New Bedford. At the time, Rodrigues was

in [***3] Mendes's black Nissan Sentra

with Mendes and DaCosta; DaCosta

asked Baptista to telephone drug dealers

to help him (DaCosta) with his plan to

rob them. Baptista agreed to help later

that evening, as the defendants and

Mendes continued’ discussing _ their

scheme to rob drug dealers. Baptista

called various dealers and eventually

arranged to meet the victim on Winsor

Street to purchase cocaine. Rodrigues

gave Baptista money so as not to arouse

the victim's suspicion.

The defendants, Mendes, and Baptista

left the club in the Nissan. Before

departing, Mendes and DaCosta

retrieved DaCosta's handgun from the

Nissan's trunk. They dropped Baptista

off near Winsor Street to avoid being

seen by the victim.

Baptista walked to Winsor Street,

located the victim, and entered his car.

As they talked, the Nissan drove by. The

victim became suspicious and ordered

Baptista out of his car. As Baptista left

the victim's car, Mendes parked the

Nissan and the defendants got out.

DaCosta approached the victim's car and

opened the driver's door. After DaCosta

and the victim “had words,” the victim

closed the door and DaCosta shot him

twice through the car window. DaCosta

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96 Mass. App. Ct. 105, *107; 132 N.E.3d 1067, **1072; 2019 Mass. App. LEXIS 121, ***3

ran to Mendes's car, he [**1073] and

Rodrigues got in, [***4] and Mendes

drove away. Meanwhile, Baptista

approached the victim, who lay dead on

the street. He searched the victim's car

for drugs or money but found none.

Baptista took a cell phone and left the

area.

After the shooting, the defendants and

Mendes returned to the club, where

Mendes moved the gun from under the

passenger seat of the Nissan to

DaCosta's mother's car. Inside the club,

Rodrigues and Mendes asked DaCosta

why he had shot the victim. DaCosta

explained that the victim had been

trying to take the gun from him. He then

physically demonstrated how he shot the

victim by raising his right hand parallel

to the ground. Meanwhile, Baptista went

to a bar after the shooting, then

returned to the club to look for

Rodrigues. By the time Baptista returned

to the club, the defendants and Mendes

had left.

Baptista left the club and met the

defendants and Mendes on_ Division

Street, where he told them that the

victim was dead. DaCosta threatened to

kill Baptista and his family if he went to

the police. Rodrigues intervened and

assured DaCosta that Baptista would

remain silent. When Baptista showed

them the victim's cell phone, DaCosta

took it and smashed it on the ground.

[*108] Baptista gave

Rodrigues [***5] his money back.

Baptista then went to a Hess gasoline

station, where, he told the attendant

that he had just shot someone with a

shotgun. After smoking crack cocaine,

Baptista returned to the crime scene,

where police officers observed him

pacing and saying, “I can't believe this

happened.” Baptista was taken to the

police station, where he agreed to

cooperate.

Although the murder weapon was never

found, two spent projectiles and two

shell casings were recovered from the

victim's body and the crime scene. A

ballistics examination revealed that the

projectiles were .38 caliber class

ammunition. Pursuant to a plea and

cooperation agreement, Baptista agreed

to testify truthfully in exchange for a

joint recommendation of a_ prison

sentence of from nine to ten years on an

indictment charging assault with intent

to rob. Similarly, Mendes agreed to

cooperate in exchange for a _ prison

sentence of from seven to fifteen years

on a “reduced charge.”* Baptista's and

Mendes's plea agreements were

introduced in evidence at trial, and the

judge instructed the jury before they

testified that, bearing in mind the

potential “future benefits” conferred by

the plea agreements, the jury were to

examine their testimony “with

caution [***6] and great care.”

Neither defendant testified. The

defendants’ theory of defense was that

Baptista and Mendes were responsible

for the victim's death, and that their

testimony should not be believed.

2. Exposure to excluded evidence. A

surveillance video recording from the

club was played during Baptista's

testimony and introduced in evidence.

The audio portion of the recording

revealed that Baptista asked the

bartender to use her telephone before

stating that “[s]omebody got shot down

4The record does not specify the charges to which

Mendes pleaded guilty.

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96 Mass. App. Ct. 105, *108; 132 N.E.3d 1067, **1073; 2019 Mass. App. LEXIS 121, ***6

the street.” In response to a question

from the bartender, Baptista denied that

he was the shooter. The judge excluded

the audio portion of the recording on

hearsay grounds, but expressed a

willingness to revisit the issue _ if

Baptista's earlier statement to the Hess

employee (that he shot someone with a

shotgun) was raised on_ crossexamination. The video portion of the

recording was then played for the jury

without the audio. Although Baptista was

cross-examined about his statements to

the Hess employee, the [**1074]

Commonwealth did not seek to introduce

the audio portion of the recording.

On the second day of deliberations, the

judge received a note from the jury,

which stated, “Exhibit 36 Portuguese

Sports Club, [*109] in the [***7]

courtroom only video was presented, we

have just found it to have audio. Is there

any issue with us listening to the video?”

The judge confirmed that exhibit 36

included the audio portion that had been

excluded. The defendants immediately

moved for a mistrial, which the judge

denied. Although counsel for DaCosta

initially suggested individual voir dire to

determine what each juror heard, he

agreed with the judge's decision to first

ask the foreperson “how much of the

audio tape ... was listened to.” Before the

foreperson entered the court room, the

judge found “that the error was

inadvertent and was not intentionally

done.” The foreperson explained in an

unsworn statement that the jury “just

heard Baptista say someone shot

someone outside. That's all we heard

and we stopped it because we didn't

hear that in here.” In response to a

question from the judge, the foreperson

confirmed that the jury heard nothing

before or after that statement.

The judge denied the defendants’

renewed motion for a mistrial, noting

that she would have admitted the entire

recording “under the doctrine of

rehabilitation” had the Commonwealth

offered the audio portion after Baptista's

cross-examination. Counsel [***8] for

DaCosta then requested that the judge

inquire of each juror individually whether

they could abide by her instruction and

strike the audio recording from their

minds. Ultimately, he agreed that the

judge could “ask them as a group.”

When the jury reentered, the judge

reminded them that the audio portion of

the recording had not been admitted in

evidence and explained that she “had

the foreman come in so that we could

explore exactly how much of that audio

you listened to and it seemed to be a

very brief section of the audio.” She then

instructed them “in very, very forceful

terms that you are to strike whatever

you heard, whatever portion of the audio

that you heard from Exhibit 36 from

your minds and you are not to consider

it at all in your deliberations.” When the

judge inquired if any juror was unable to

follow those instructions, no juror

responded in the affirmative.

After a recess, the defendants renewed

their request for a mistrial on the ground

that the judge had not conducted an

individual voir dire of the jurors. The

defendants declined the judge's offer to

conduct individual voir dire at that point,

stating, “that's just calling more

attention to it at this point.”

The [***9] renewed motion for a

mistrial was denied.

Discussion. Both defendants challenge

(1) the judge's failure to conduct

individual voir dire of the jurors

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regarding the audio [*110] recording;

(2) the denial of the motion for a

mistrial; (3) the sufficiency of the

evidence supporting the firearm

conviction, their knowledge that a

coventurer was armed, and_ the

maximum penalty for armed assault with

intent to rob; and (4) the propriety of

the prosecutor's closing argument.®

Rodrigues also claims that certain of

Baptista's testimony should not have

been admitted. DaCosta alone claims

that the armed assault with intent to rob

merged with the murder such that his

conviction violated his constitutional

right [**1075] to be free from double

jeopardy. DaCosta also raises several

arguments pursuant to Commonwealth

v. Moffett, 383 Mass. 201, 208-209. 418

N.E.2d 585 (1981).® First, he argues that

trial counsel was ineffective in not

moving to sever the trials. Next, he

claims that the judge should have given

a manslaughter instruction. Finally, he

claims that certain cell phone records

should not have been admitted. We

address each claim in turn.

1. Extraneous influence. “In [Jackson,

376 Mass. at 800], [the] court set forth

procedures for courts to follow when a

claim of extraneous influence on the

jury [***10] is brought to the

5DaCosta has joined the arguments contained in

Rodrigues's brief “as applicable to him.” See Mass, R.

A. P._16 (j) (2), as appearing in 481 Mass. 1633

(2019) (“In cases involving more than one appellant ...

any appellant or appellee may adopt by reference any

part of the brief of another”).

6 Pursuant to Moffett, 383 Mass. at 208, “[i]f there is

nothing to support a contention which the defendant,

despite counsel's attempts to dissuade him, insists on

pursuing, we think it preferable that counsel present

the contention succinctly in the brief in a way that will

do the least harm to the defendant's cause.”

attention of a trial judge.”

Commonwealth v. Tennison, 440 Mass.

553, 557, 800 N.E.2d 285 (2003),

Where, as in this case, there is no

question that the entire jury were

exposed to extraneous material, the

judge is required to conduct individual

voir dire “to determine the extent of

[each] juror’s exposure to the material

and its effects on the juror's ability to

render an impartial verdict.” Jackson

supra at 800-801. See Commonwealth v.

Blanchard, 476 Mass. 1026. 1027, 70

N.E.3d 471 (2017); Commonwealth v.

Mejia, 461 Mass. 384, 394-395. 961

N.E.2d 72 (2012); Tennison. supra;

Commonwealth v. Kamara, 422 Mass.

614. 616, 664 N.E.2d 825 (1996), The

judge must then exercise her discretion

to determine whether the jurors remain

impartial and can_ disregard the

extraneous information. Commonwealth

v. Womack, 457 Mass. 268 281, 929

N.E.2d 943 (2010). Next, the judge

must “determine whether juror exposure

to extraneous information requires the

declaration of a mistrial in order to

protect the defendant's right to a fair

and impartial trial, or whether a less

drastic remedy is appropriate.”

Blanchard, [*2i1i7 supra at 1028. See

Womack, supra at 280-281. “The judge

has broad discretion to fashion an

appropriate remedy, if one is necessary.”

Blanchard. supra.

It is undisputed that in this case, the

judge did not conduct individual voir dire

to determine precisely what each juror

heard and whether it affected his or her

impartiality. The Commonwealth

concedes that this was error. Because

the error implicates the defendants' right

under the Sixth Amendment _to the

United States Constitution to trial by an

unbiased [***11] jury, we must

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96 Mass. App. Ct. 105, *111; 132 N.E.3d 1067, **1075; 2019 Mass. App. LEXIS 121, ***11

determine whether the error was

harmless beyond a reasonable doubt.

Commonwealth v. Morales, 76 Mass.

App, Ct. 663, 665. 925 N.E.2d 551

2010). “[I]n determining whether a

constitutional error was harmless, we

ask ‘whether the record establishes

beyond a reasonable doubt that the

error complained of did not contribute to

the verdict obtained.” Id. at 667,

quoting Cormonweaith v. Peixoto, 430

Mass. 654, 660. 722 N.E.2d 470 (2000).

See Chapman v. California, 386 U.S. 18,

24, 87 S. Ct. 824 17 L. Ed. 2d 705

1967), For the reasons that follow, we

are confident that the error did not

contribute to the guilty verdict and did

not require the declaration of a mistrial.

See Commonwealth v. Gallagher. 408

Mass. 510, 517, 562 N.E.2d 80 (1990)

(“Whether to declare a mistrial is within

the trial judge's discretion”).

First, Baptista's recorded statement that

“[s]omebody got shot down the street”

did not prejudice the defendants because

that statement was cumulative of

Baptista's trial testimony, “I spoke to the

bartender and I told [her] somebody got

[**1076] shot.” Thus, that portion of

the audio recording did not expose the

jury to new information. See

Commonwealth v. Barbosa, 463 Mass.

116, 129-130, 972 N.E.2d 987 (2012)

(no prejudice from inadmissible evidence

that is cumulative of other _ trial

testimony). Moreover, the substance of

the statement, that someone had been

shot, was never a contested issue at

trial. The defendants' suggestion that

the jury may also have heard Baptista

deny that he was the shooter is not

supported by the record. [***12] ’ See

7 Although the defendants now fault the judge for

relying on the foreperson's unsworn representations

Commonweaith v. Colon, 482 Mass. 162

167. 121 N.E.3d 1157 (2019)

(“defendant bears the burden of

demonstrating an extraneous influence

by a preponderance of the evidence”).

Our review must “be focused on the jury

in this case, not on [what] a hypothetical

jury” may have heard. Kamara. 422

Mass. at 616. Simply put, the jury's brief

exposure to Baptista's recorded

statement that some- [*112] body had

been shot “could not have tainted [their]

verdict,” Gallagher, 408 Mass. at 518,

where the jury had already heard the

substance of that statement, the

accuracy of the statement was not

contested, and the jury also heard

eyewitness testimony from two

cooperating coventurers.

Second, the judge gave a curative

instruction incorporating all of the

defendants’ suggestions. She instructed

the jury in “forceful terms” to strike from

their minds “whatever portion of the

audio” they heard. We presume the jury

followed those instructions. See

Tennison, 440 Mass. at 558. Finally, we

note that although the judge did not

adhere strictly to the Jackson protocol,

she did, through collective questions,

seek to determine how much the jury

had heard and whether they could

disregard it. These’ efforts were

consistent with Jackson and Blanchard,

insofar as they were directed to the

scope of the jury's exposure to

extraneous matter and its impact. No

juror [***13] indicated they heard

more than what the foreperson stated

they heard, and no juror expressed an

inability to disregard that information

regarding how much of exhibit 36 was played during

the jury's deliberations, neither objected at trial to the

foreperson not being sworn.

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and remain impartial. Having observed

the jury over the course of the ten-day

trial, the judge was in the best position

to assess the credibility of those

responses. See Tennison, supra at 560.

Further, the defendants ultimately

declined the judge's offer to conduct

individual voir dire when they brought it

to her attention a second time. In these

circumstances, in the absence of any

evidence that the extraneous matter

prejudiced the defendants, the judge's

denial of the motion for mistrial did not

“falll ] outside the range of reasonable

alternatives.” L.L. v. Commonweaith,

470 Mass. 169, 185 n.27, 20 N.E.3d 930

(2014).

2. Sufficiency. The defendants challenge

the sufficiency of the evidence that they

knew a coventurer was armed. They also

claim there was_ insufficient evidence

that the murder weapon was a firearm,

that is, that it had a barrel length less

than sixteen’ inches. Finally, the

defendants contend that the

Commonwealth failed to offer sufficient

proof that the maximum penalty for

armed assault with intent to rob, the

predicate felony for the conviction of

felony-murder in the second degree, was

less than life imprisonment. [***14]

We analyze these claims to determine

“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 [these crimes] beyond a reasonable

doubt (emphasis in original).” Latimore.

378 Mass. at 677, [**1077] quoting

Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

[*113] a. Knowledge of a gun. The

defendants’ convictions of felony-murder

required proof that they participated in

an armed assault with intent to rob and

that the victim's death occurred in the

commission or attempted commission of

that crime. Commonwealth v. Cooley

477 Mass. 448 451. 78 N.E.3d 77

(2017). “The elements of armed assault

with intent to rob are that the

defendant, armed with a dangerous

weapon, assault{[ed] a person with a

specific or actual intent to rob the person

assaulted.” Commonwealth v. Rivera

445 Mass. 119, 130 7.15, 833 _N.E.2d

1113 (2005). Where, as here, the

defendants were prosecuted on a theory

of joint venture, knowledge that one of

the coventurers was armed with a

dangerous weapon was an element that

the Commonwealth was required to

prove. See Commonweaith v. Britt, 465

Mass. 87, 99, 987 N.E.2d 558 (2013):

Commonwealth v. Gorman, 84 Mass.

App. Ct. 482, 489, 998 N.E.2d 344

(2013).

DaCosta's argument on _ this _ point

requires little discussion. There was

ample evidence from which a rational

juror could infer that DaCosta had

knowledge of the gun. Mendes testified

that the gun used in the’ robbery

belonged to DaCosta, that it was placed

in Mendes's trunk at

DaCosta's [***15] direction, that he

and DaCosta retrieved it from the trunk

before the robbery, and that DaCosta

used it to shoot the victim.

The sufficiency of the evidence

supporting Rodrigues's knowledge that

DaCosta was armed presents a closer

question. Bearing in mind that “[p]roof

beyond a reasonable doubt may be

established by evidence that is entirely

circumstantial, and the inferences a jury

may draw from the evidence need only

be reasonable and _ possible, not

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necessary or inescapable,”

Commonwealth v. Quinones. 78 Mass.

Apo. Ct, 215, 219 936 N.E.2d 436

‘2010), we conclude that the evidence

was sufficient.

The Commonwealth's evidence

established that both defendants

discussed a plan to rob drug dealers

during the week and evening preceding

the murder and that they carefully

planned the robbery to avoid alerting the

victim. The jury could infer that this plan

involved finding “a means ... to persuade

the intended victim to part with his

money.” <ommonwealth v. Tracy. 27

Mass. As Ct. 455. 457. 539 N.E.2d

1043 (1989). See id. at 458 (jury could

infer defendant's knowledge that

codefendant was armed from fact that

they “had spent the afternoon together

prior to the robbery, a time when they

had an opportunity to plan the

undertaking”). That DaCosta called for a

gun to be delivered, and that he and

Mendes retrieved the gun from the trunk

of the [***16] Nissan before the group

left for Winsor Street, demonstrate that

the coventurers [*114] anticipated

resistance from the victim and

recognized “the need for some means by

which to overcome that resistance.”

Commonwealth v. Netto, 438 Mass, 686,

703, 783 N.E.2d 439 (2003). We have

repeatedly held that “[a] reasonable

juror could conclude that a plan to rob a

drug dealer would include a gun where

the victim's resistance was reasonably

anticipated.” Cooley, 477 Mass. at 452.

See Commonwealth v. Cannon. 449

Mass. 462 470, 869 N.E.2d 594 (2007):

Gorman, 84 Mass. App. Ct. at 488;

Quinones, 78 Mass. App. Ct. at 219.

“[T]he jury were [further] warranted in

inferring that [Rodrigues] acted in

concert with his companions” to use a

gun in the course of robbing the victim

based on evidence that he (1) took an

active role in planning the robbery and

[**1078] gave Baptista money to

show the victim, (2) rode in the Nissan

to Winsor Street with DaCosta, who had

just retrieved a gun from the trunk, (3)

got out of the Nissan at the murder

scene with DaCosta, (4) reentered the

Nissan immediately after DaCosta fired

the fatal shots, (5) remained with

DaCosta for the rest of the evening, and

(6) intervened to assure DaCosta that

Baptista would remain silent.

Commonwealth v. Brooks. 422 Mass.

574, 577. 664 N.E.2d 801 (1996). See

Cannon, 449 Mass. at 470-471 (jury

could find beyond reasonable doubt that

defendant participated in armed robbery

where he failed to telephone 911 or

render aid to victim, made no attempt to

dissociate [***17] himself from his

cohorts, and fled scene with them);

Commonwealth v. Blake, 428 Mass. 57,

64, 696 N.E.2d 929 (1998) (“Joint

venture may be proved by circumstantial

evidence, including that the defendant

was among those fleeing the scene”);

Commonwealth v. Evans, 390 Mass.

144, 151, 454 N.E.2d 458 (1983)

(sufficient evidence to support felonymurder conviction where there was “no

evidence that the defendant had ceased

his participation in the armed robbery at

the time of the killing”). These actions

are also evidence of Rodrigues's

consciousness of guilt. “While a

conviction may not be based solely on

evidence of consciousness of guilt,

indications of a defendant's state of

mind, coupled with other evidence, can

be sufficient to establish guilt” (citation

454

Mass. 418, 424, 910 N.E.2d 339 (2009),

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Viewing all the evidence in the light most

favorable to the Commonwealth, a juror

could reasonably infer that Rodrigues

knew that DaCosta possessed a firearm.

b. Barrel length.® A conviction under G.

L. c. 269, § 10 (a), requires proof that

the “pistol, revolver or other weapon”

capable of [*115] discharging a bullet

has a barrel length less than sixteen

inches. See G. L. c. 140, § 121 (defining

firearm). “Whether a gun is a ‘firearm’ ...

is a question of fact for the jury.”

Commonweaith v. Soerrazza, 372 Mass.

667, 670. 363 N.E.2d 673 (1977).

The ballistician testified that the bullets

that killed the victim came from a

weapon capable of

chambering [***18] nine millimeter

caliber ammunition. Although nine

millimeter ammunition is capable of

being fired by a rifle or revolver, “[t]he

very high majority” of weapons firing

that ammunition are semiautomatic

pistols like those carried by _ police

officers. A revolver, like a pistol, is a

“short firearm[ ]” whose barrels jurors

can infer are less than sixteen inches.

Sperrazza, 372 Mass. at 670. A rifle is

longer, having “a barrel length equal to

or greater than [sixteen] inches.” G. L.

c. 140, § 121.

The jury were entitled to conclude that

the murder weapon was not a rifle from

Baptista's testimony that he never saw a

gun, either when DaCosta and Mendes

entered the Nissan or when DaCosta got

8 Although the defendants did not move for a required

finding of not guilty on this charge, we address it

because “findings based on legally insufficient

evidence are inherently serious enough to create a

substantial risk of a miscarriage of justice.”

Commonwealth v. McGovern, 397 Mass. 863. 867-

868, 494 N.E.2d 1298 (1986).

out. He only “saw the fire” when

DaCosta shot the _ victim. Mendes

confirmed that DaCosta was hiding the

gun, and that he did not see it in

DaCosta's hand when DaCosta got out of

the Nissan or when he reentered after

the shooting. “[T]he absence of any

statement by either [Mendes or

Baptista] of having seen a barrel” when

the gun was under the seat in the Nissan

or when DaCosta was holding it support

an inference that the weapon was a

handgun. Commonweaith v. Naylor. 73

Mass. Aop. Ct. 518 525, [**i1G797T

899 N.E.2d 862 (2009). Further, the jury

could infer that the murder weapon was

a handgun from Mendes's testimony that

DaCosta demonstrated [***19] how

he held the gun with one hand to shoot

the victim. See Commonwealth _v.

Manning, 44 Mass. App. Ct. 695, 707,

693 N.E.2d 704 (1998). In short, “[t]he

jury [were] permitted to draw rational

inferences from the evidence,” Tennison,

440 Mass. at 565, and we agree with

them that the evidence was sufficient to

establish that the murder weapon was a

firearm.

c. Penalty for armed assault with intent

to rob. The defendants claim that their

felony-murder convictions must be

vacated because the Commonwealth

presented no evidence of the maximum

penalty for armed assault with intent to

rob. We disagree. Criminal penalties are

set by statute, and whether a felony can

serve as a predicate for murder in the

first or second degree is a question of

law. The judge was not required to

submit the issue to the jury. [*116]

See Commonwealth v. Scott, 428 Mass.

362, 364, 701 N.E.2d 629 (1998) (“It is

not the province of the jury to determine

whether a_ felony’ is inherently

dangerous”). The judge instructed the

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96 Mass. App. Ct. 105, *116; 132 N.E.3d 1067, **1079; 2019 Mass. App. LEXIS 121, ***19

jury that armed assault with intent to

rob “is a felony with a maximum

sentence of less than life imprisonment,”

and her instruction was correct. See

Commonwealth v.Wadlinaton. 467

Mass. 192, 208. 4 N.E.3d 296 (2014),