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Massachusetts Appeals Court Summary Dispositions Pursuant to Rule 23.0 (formerly Rule 1:28)

Docket Number - 24-P-0738main content

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COMMONWEALTH vs. SHAWN WALKER.
5/9/2025
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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
24-P-738
COMMONWEALTH
vs.
SHAWN WALKER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Shawn Walker, appeals from a conviction,
after a jury trial in the District Court, of assault by means of
a dangerous weapon, G. L. c. 265, § 15B (b). Concluding that
the judge's answer to a jury question did not create a
substantial risk of a miscarriage of justice, we affirm.
1. Standard of review. "The proper response to a jury
question must remain within the discretion of the trial judge,
who has observed the evidence and the jury firsthand and can
tailor supplemental instructions accordingly." Commonwealth v.
Robinson, 449 Mass. 1, 7-8 (2007), quoting Commonwealth v.
Watkins, 425 Mass. 830, 840 (1997). "We evaluate the adequacy
of a supplemental instruction in the context of the entire
2
charge." Commonwealth v. West, 487 Mass. 794, 804 (2021).
"When reviewing jury instructions, we 'evaluate the instruction
as a whole, looking for the interpretation a reasonable juror
would place on the judge's words.'" Commonwealth v. Odgren, 483
Mass. 41, 46 (2019), quoting Commonwealth v. Vargas, 475 Mass.
338, 349 (2016). "Where, as here, the defendant failed to
object to the instruction at trial, we review the instruction to
determine whether any error in the instruction created 'a
substantial risk of a miscarriage of justice.'" Commonwealth v.
Telcinord, 94 Mass. App. Ct. 232, 241-242 (2018), quoting
Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
2. Response to jury question. Regarding the dangerous
weapon element of the crime, the judge instructed
"The next element is that it has to be done by means of a
dangerous weapon. A dangerous weapon, under the law, is an
item which is designed for the purpose of causing serious
injury or death. I instruct you, as a matter of law, that
a firearm is a dangerous weapon."
The jury then came back with three questions, one of which
was, "If a person feels threatened, does that meet the standard
of the charge of assault with a deadly weapon?" With the
agreement of both parties, the judge reinstructed the jury on
the elements of assault. He then stated, "The last element
would be a dangerous weapon. I also earlier instructed you on
the elements of dangerous weapon. Do I need to instruct you on
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that as well?" When the foreperson replied in the affirmative,
the judge instructed, without objection,
"Okay. A dangerous weapon is an item which is designed for
the purpose of causing serious injury or death. I instruct
you, as a matter of law, that a firearm is a dangerous
weapon."
Although it would have been better to include the first
sentence of the dangerous weapon element instruction (that "it
has to be done by means of a dangerous weapon") in the
supplemental instruction, it seems unlikely that the jury would
have interpreted this instruction as negating the judge's
earlier instruction that the assault had to be done by means of
the dangerous weapon. See Commonwealth v. Deconinck, 480 Mass.
254, 270-273 (2018) (incomplete instruction in response to jury
question proper in light of earlier, complete instruction). See
also Commonwealth v. Delacruz, 463 Mass. 504, 518 (2012) (judge
not required to repeat entire charge in response to jury
question).
Moreover, even if a juror could have misconstrued the
response as allowing a conviction where the defendant merely
possessed, but did not use, a dangerous weapon, there is no
substantial risk of a miscarriage of justice. The victim
testified that the defendant opened the door with a gun "pointed
right at" him and said, "I should've shot you . . . a long time
ago." The victim described no other assaultive behavior, and
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"was surprised that [the defendant] even had a gun." The
defendant's girlfriend testified that the defendant and the
victim merely argued and "it wasn't, like, aggressive to the
point where they were going to fight." She testified that the
defendant had nothing in his hands and she never saw a gun in
his possession that evening. In short, there was no evidence of
an assault that did not include the use of a gun and no evidence
that the defendant possessed a gun other than in using it in the
assault. Accordingly, there is no risk that the jury convicted
the defendant for possessing a gun during an assault without
finding that he used the gun to commit the assault. See
Commonwealth v. Young, 461 Mass. 198, 211 (2012) (possible error
in response to jury question did not create substantial
likelihood of miscarriage of justice where point at issue "was
never contested at trial").
Judgment affirmed.
By the Court (Ditkoff,
Singh & Smyth, JJ. ),
1
Clerk
Entered: May 9, 2025.
1
The panelists are listed in order of seniority.