scorecardresearch Skip to main content

Asthmatic’s death forges new legal ground

DA says gunfire triggered attack

In 2013, Shirley Rowell, mother of Kelvin Rowell, wiped away tears. Her son fled a shooting, but had an asthma attack and died later.JOSH REYNOLDS FOR THE BOSTON GLOBE

The young man was aiming at a rival on a January evening in 2012 when he sent a barrage of bullets into a group on Blue Hill Avenue, prosecutors say. Everyone scattered, and no one was hit. But about a block away, a 40-year-old man fleeing the gunfire began gasping for air. He was having an asthma attack so severe that it left him in a coma. Six weeks later, he was dead.

Michael “Fresh” Stallings, 26 , the alleged shooter, is now facing trial on charges of first-degree murder for the asthma-triggered death of Kelvin Rowell as he ran, panicked, from the gunfire. Prosecutors say Rowell was not a gang member, and had no part in the feud.


Related: 2013: Dorchester man ordered held without bail in death

Opening statements in the unusual case are expected this week in Suffolk Superior Court.

Legal precedent holds that a defendant can be prosecuted for murder if the defendant’s act set in motion a chain of events that led to death. But some experts say the Stallings case raises questions about how far prosecutors can push the boundaries of culpability and causation.

“You don’t have to be the one that strikes the fatal blow to be convicted of murder,” said Suffolk University Law School professor D. Christopher Dearborn, who, like the other legal specialists and doctor interviewed, had no connection to the case and was given details by a reporter. “Whether this is a prudent course of action to pursue, and whether it is something the jury is going to find to be a little far-fetched, is a different question.”

A verdict of first-degree murder would require the jury to find that Stallings acted with premeditation, or with extreme atrocity or cruelty.

A conviction carries a mandatory sentence of life in prison without parole.


A spokesman for Suffolk District Attorney Daniel F. Conley declined to comment on the case on the eve of trial. But in a 2013 release about the charge, Conley cited two Supreme Judicial Court cases to help explain the legal underpinning.

The 1997 decision in Commonwealth v. Santiago, states that “the defendant’s acts need not be the sole or exclusive cause of death.” The other case, the 1980 decision in Commonwealth v. Rhoades, says that a defendant’s acts can be the “proximate cause” of a victim’s death when those acts, “in the natural and continuous sequence, produced the death, and without [them] the death would not have occurred.”

A Massachusetts Appeals Court decision, Commonwealth v. Allen R. Jenner, bears striking similarities to the Stallings case.

That 1987 ruling involved an elderly man who had a tracheotomy, and breathed through a surgically implanted tube in his neck. Jenner robbed him and then left him facedown on the ground during the Blizzard of ’78.

The court found that Jenner properly pleaded guilty to manslaughter after the man died. Jenner was initially charged with first-degree murder.

The victim had run from Jenner, fallen, and died of exposure, suffocation, or both. His breathing problem may have contributed to his death.

The court noted that “injury during an escape is within the scope of foreseeability by persons intending physical violence,” and that the actions of the person who causes another to flee and die are the “proximate cause” of death.

That Jenner did not know about the victim’s tracheotomy did not matter, the court ruled.


“The question is: You fire into a crowd, it’s foreseeable that people would then run. Are you then accountable if it turns out one of the people who ran has asthma?” said Daniel S. Medwed, a Northeastern University criminal law professor. “Let’s take it another step. . . . It’s foreseeable that someone who ran for their life would get hit by a car. To what extent is that different? The fact that the means of death is unusual, does that matter when the fact of death is foreseeable?”

About 7 percent of Americans have asthma, and about 4,500 of them die from attacks every year, said Dr. Elliot Israel, director of Clinical Research in the Pulmonary Division at Brigham and Women’s Hospital.

Attacks can be triggered by exercise, stress, environmental factors like smoke, or they can be spontaneous, he said.

A person suffering an attack, he said, experiences a feeling of suffocation, which can last for a few minutes or longer.

“The sensation of not being able to get your breath is an awful one, that’s used to torture people,” said Israel. “Waterboarding is the sensation that you’re drowning, and that gets people to give up their secrets.”

He said it was difficult without knowing the evidence to speculate about whether prosecutors could prove conclusively that the fear and running sparked by the shooting caused Rowell’s asthma attack, but said, “I think you could make a pretty good case.”


But criminal defense attorney Christopher Belezos said he saw the Stallings case not as first-degree murder, but as involuntary manslaughter, which is charged when an individual acts recklessly and with disregard for the safety of others, but with no intent to kill.

There are simply too many intervening factors, Belezos said, between the shots fired and the asthma attack for Stallings’s acts to be considered the “proximate cause” of death.

In the Rhoades case, Belezos noted, the defendant was accused of setting a fire in an apartment. Three residents were killed, and a firefighter had a fatal heart attack while fighting the fire.

Though the defendant’s conviction in the firefighter’s death was overturned because of a flawed jury instruction, the court found that “the evidence supported an inference that Rhoades’ actions were the proximate cause of [the firefighter’s] death.”

Belezos said it is foreseeable that a firefighter would show up to a fire and risk his life. It is not foreseeable, he said, that a bystander might have an asthma attack. And every time the sequence of events that leads to death is interrupted by an unexpected factor, proximate cause grows harder to prove.

“This is so attenuated,” said Belezos. “This is sort of, ‘For want of a nail, the kingdom was lost.’ ”

Belezos also noted that in the Rhoades case, the defendant was convicted of second-degree murder for the death of the firefighter, not first.

Attorney Timothy M. Burke, who has prosecuted more than 25 murder cases and now has a private practice in Needham, said he also believed the facts pointed to involuntary manslaughter, but said prosecutors were within their rights to file first-degree charges.


“If this is a gang-related shooting, there’s not going to be any empathy for anyone who does something like this,” said Burke. “The fact that it’s a novel theory of law, or essentially untested, doesn’t mean that they couldn’t or shouldn’t initiate these charges.”

Stallings’s attorney, Stephen J. Weymouth, said his client was overcharged, and there was no evidence Stallings knew Rowell had asthma. He declined to comment further because of the proximity to trial.

Rowell’s family members declined to comment.

“The facts of this case are novel, but the reasoning is not,” Conley said in his 2013 release. “Those who carry and use illegal firearms in this city need to know something: When you fire a gun at someone, you’re responsible for whatever happens next.”

John R. Ellement of the Globe staff contributed to this report. Evan Allen can be reached at Follow her on Twitter @evanmallen.