Commonwealth v. Malik A. Koval.

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

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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

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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.

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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

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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.

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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."

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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.

18