Commonwealth v. Coutu (Lawyers Weekly No. 11-127-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 08-P-986 Appeals Court COMMONWEALTH vs. DAVID COUTU. No. 08-P-986. Middlesex. September 17, 2015. – September 15, 2016. Present: Katzmann, Meade, & Rubin, JJ. Burning of Property. Attempt. Practice, Criminal, Required finding. Indictment found and returned in the Superior Court Department on August 15, 2006. The case was tried before S. Jane Haggerty, J. After review by the Appeals Court, the Supreme Judicial Court denied leave to obtain further appellate review, but remanded the case to the Appeals Court for reconsideration. Amy M. Belger for the defendant. Randall F. Maas & Bethany Stevens, Assistant District Attorneys, for the Commonwealth. MEADE, J. In Commonwealth v. Coutu, 88 Mass. App. Ct. 686 (2015) (Coutu No. 1), this court affirmed the defendant’s convictions of aggravated rape, home invasion, mayhem, armed robbery, and kidnapping, and reversed his convictions of assault and battery by means of a dangerous weapon causing serious bodily injury and attempt to burn personal property. Thereafter, the Commonwealth sought further appellate review and challenged the reversal of the defendant’s conviction of attempt to burn personal property. The Supreme Judicial Court denied the application without prejudice and remanded the matter to this court.[1] Commonwealth v. Coutu, 474 Mass. 1103 (2016). On remand, we have been instructed to reconsider our reversal of that conviction (based on insufficient evidence) in light of Commonwealth v. LaBrie, 473 Mass. 757 (2016). Having done so, we now affirm the defendant’s conviction of attempt to burn personal property. The facts of this case are set out in detail in Coutu (No. 1), supra at 687-692. In broad outline, the defendant, a stranger to the victim, broke into her apartment by tunneling through the wall of an adjacent apartment with a crowbar, and then beat and raped the victim with the crowbar before setting fire to a box of items. Relative to the attempted arson, we recited the following facts, which occurred after the defendant repeatedly struck the victim’s head with the crowbar until she “was completely out”: “When the victim regained consciousness, she saw a pool of blood next to her and she smelled smoke. The smoke was coming from a box the defendant had stuck in a hole in the wall. She dragged the flaming box into the bathtub and retrieved a fire […]