Opinion
19-P-219
03-06-2020
COMMONWEALTH v. Eric T. COMINOLI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted after a bench trial of assault by means of a dangerous weapon, G. L. c. 265, § 15B (b ), and assault and battery, G. L. c. 265, § 13A (a ). In this his direct appeal, he argues that the evidence was insufficient to permit the judge, as the trier of fact, to find beyond a reasonable doubt that he did not act in self-defense. We affirm.
Believing he had successfully blackmailed a former girlfriend to meet him to perform oral sex in exchange for his not disseminating nude photographs of her, the defendant met the woman in a store parking lot after 10 P.M. one night. Unbeknownst to him, the woman had no intention of performing oral sex, and had instead arranged for several friends to be present to help obtain and destroy the pictures. There was evidence that the friends were chosen at least in part because they were physically large and not afraid to fight or otherwise force the defendant to delete the images. One friend approached the passenger side of the woman's vehicle (where the defendant was seated), one drove his truck behind the woman's vehicle, and one got into the driver's seat after the woman left the car. The defendant was surrounded on three sides by men he did not know, but whom he could easily presume were not friendly towards him. There was no evidence, however, that any of the three verbally threatened him, made any threatening gestures, or physically assaulted the defendant before the defendant punched one of the men in the face as soon as the man got in the car and said "hey." A fight between the two erupted within the confines of the car, and the defendant pressed a firearm against the man's side, saying he was going to shoot him. On these facts, the judge could find that the defendant was the first to use physical force, and that no one other than the defendant used a dangerous weapon.
Although the defendant did not testify and there was thus no direct evidence of his state of mind, one could easily infer that the defendant found himself in an unexpected and potentially threatening situation. It does not necessarily follow, however, that the evidence required the judge to find that the defendant acted in self-defense when he threw the first punch and escalated the situation by brandishing a deadly weapon. In the circumstances, the judge could find that the Commonwealth proved beyond a reasonable doubt that the defendant had not used all reasonable means to avoid physical combat and that the degree of force used was unreasonable when he threw the first punch. See Commonwealth v. King, 460 Mass. 80, 87 (2011). The judge could also find that the Commonwealth proved beyond a reasonable doubt that the defendant did not have a reasonable belief that no other means would suffice to prevent great bodily harm before he used his firearm. See Commonwealth v. Houston, 332 Mass. 687, 691 (1953).
Judgments affirmed.