Opinion
19-P-875
12-31-2020
COMMONWEALTH v. JOSE CORREIA.
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).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant was charged with unlicensed possession of a firearm, G. L. c. 269, § 10 (a); unlicensed carrying of a loaded firearm, G. L. c. 269, § 10 (n); discharging a firearm within 500 feet of a dwelling, G. L. c. 269, § 12E; assault and battery by means of a dangerous weapon (firearm), G. L. c. 265, § 15A (b); assault and battery by means of a dangerous weapon (metal pipes), G. L. c. 265, § 15A (b); and four counts of assault by means of a dangerous weapon (firearm), G. L. c. 265, § 15B (b). After trial, the defendant was convicted only of assault and battery by means of a dangerous weapon (metal pipes), and acquitted on all other charges. He now appeals.
Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found as follows. This case arose from an altercation in the early morning hours of June 16, 2013, in the Dorchester section of Boston. The defendant along with Eric Silva and two or three other men were drinking in a driveway outside the building in which Dorothy Gates lived on the second floor with her son Michael Gates and his friend Brian Guilfoyle. Bothered by noise, Dorothy called out to the men to leave, and the defendant responded by swearing at her. The defendant then began using bolt cutters to cut a chain securing a gate to the driveway. Dorothy yelled at the defendant to stop, which the defendant did only after swearing at her. The group of men left five minutes later, but soon returned and parked outside. Silva and the defendant were in the defendant's car with the defendant in the driver's seat and Silva in the passenger seat.
We refer to Dorothy Gates and Michael Gates by their first names to avoid confusion.
Dorothy called Michael and told him what was happening then and what had happened previously. Shortly thereafter, Michael and Guilfoyle arrived. They immediately confronted the defendant and Silva sitting in the defendant's car. They approached the car, Guilfoyle approaching the driver's side door where the defendant was sitting. Guilfoyle aggressively confronted the defendant about the confrontation with Dorothy. The defendant got out of the car. Guilfoyle, who was larger and heavier than the defendant, punched the defendant several times in the head, knocking him down. Guilfoyle then turned his attention to Silva, who was standing nearby with Michael. Guilfoyle aggressively confronted Silva and attacked him, punching Silva once or twice and ripping Silva's shirt off.
As Guilfoyle attacked Silva, the defendant retrieved two metal pipes from his car. The defendant attacked Guilfoyle with the pipes, striking him in the shoulder and hand. This action formed the basis of the defendant's conviction.
Guilfoyle was a former Boston Police Department (BPD) officer and in response to a public records request from the defendant pursuant to G. L. c. 66, § 10, the BPD produced records relating to seventeen internal affairs complaints involving Guilfoyle. The only one at issue is no. IA 176-01 (internal affairs file); the incident it describes occurred twelve years prior to the events at issue in this case. The redacted internal affairs file describes in detail a violent confrontation between Guilfoyle and an innocent suspect (victim): while the victim was handcuffed in a prisoner transport wagon, Guilfoyle slapped him so hard that the victim's head hit the interior wall of the wagon, and Guilfoyle repeatedly punched him in the head with both fists while falsely accusing him of drag racing and breaking into Guilfoyle's car.
The defendant filed a Mass. R. Crim. P. 17, 378 Mass. 885 (1979), motion calling for the production of an unredacted copy of the internal affairs file, seeking the names of civilian witnesses whom he might call at trial. The motion was denied and the defendant appeals from that denial.
The defendant argues that he was entitled to the names of the civilian witnesses whose testimony might have been useful to demonstrate which party first introduced deadly force into the encounter between Guilfoyle and the defendant. See Commonwealth v. Chambers, 465 Mass. 520, 529-530 (2013); Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005). The jury were instructed about the different rules of self-defense and defense of another, which permit the use of nondeadly force and the use of deadly force in certain circumstances. Although the case was not tried in a way that focused on the line between deadly and nondeadly force, the defendant argues that, with the testimony of civilian witnesses to the beating described in the internal affairs file, the jury might have concluded that the punches thrown by Guilfoyle prior to the defendant retrieving the metal pipes amounted to the introduction of deadly force, rather than some lesser amount of force. The jury might, his argument proceeds, therefore have concluded that the defendant's own use of the metal pipes was a commensurate use of force in defense of Silva, something the jury's guilty verdict demonstrates that they did not conclude.
To begin with, we note that this argument was not raised below. The defendant's written submission did not argue that the civilian witnesses to the events described in the internal affairs file might have had evidence relevant to who introduced deadly force. Consequently, the defendant is entitled to relief only if he can demonstrate that there was both error and that it created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
At trial, the defendant disclaimed any argument that Adjutant required the Commonwealth to turn over the unredacted internal affairs file. It may be that the submission preserved a claim that the evidence was relevant to the identity of the party who introduced a weapon into the fight; it did not say, and thus did not preserve the claim, that the evidence was needed to demonstrate which party introduced deadly force into the fight.
Adjutant created an exception to the ordinary rule of evidence that character evidence may not be introduced for purposes of showing action in conformity with character. In Adjutant, 443 Mass. at 664, the Supreme Judicial Court held that "where the identity of the first aggressor is in dispute and the victim has a history of violence, . . . the trial judge has the discretion to admit evidence of specific acts of prior violent conduct that the victim is reasonably alleged to have initiated, to support the defendant's claim of self-defense," regardless of whether the defendant knew of the victim's prior violent acts. The court held that such evidence "may be admitted as tending to prove that the victim and not the defendant was likely to have been the 'first aggressor'" because it may show "that the victim acted in conformance with his character for violence." Id. at 654.
In Commonwealth v. Chambers, 465 Mass. 520, 529-530 (2013), the Supreme Judicial Court expanded Adjutant by saying that evidence of a victim's character for initiating violence "is as relevant to the issue of who initiated the use or threat of deadly force as it is to the issue of who initiated an earlier nondeadly assault, and such evidence may be admitted to assist the jury where either issue is in dispute." Chambers was a case about who unreasonably escalated an altercation.
The defendant argues that what is at issue here is the identity of who introduced deadly force into the confrontation. As we read Commonwealth v. Camacho, 472 Mass. 587, 594-595 (2015), however, in that case the Supreme Judicial Court foreclosed this argument. Of course, the question of which person's act was the first that amounted to the use of deadly force is in some sense a question about the identity of the party who introduced deadly force into the confrontation, not in the sense that either of the participants who engaged in a particular act is unknown or might be someone else, but in the sense that the evidence bears on who, precisely, introduced deadly force. However, the Supreme Judicial Court held in Camacho, supra, that the question of who escalated the force across the line of deadly force was distinct from the question of the identity of who engaged in each violent act, and that when the latter is known, the rule in Chambers allowing in evidence of past violent acts is not applicable. Here, where it was undisputed that Guilfoyle was the first aggressor, that he threw several punches to the head of the defendant with sufficient force that they knocked the defendant down, and that he continued to punch Silva before Silva was able to flee, there is no dispute about the sequence of the various uses of force, or who engaged in them. Although we are not certain the distinction drawn by Camacho bears close scrutiny, it is clear that the defendant here seeks to prove through character evidence who escalated the confrontation, just in the way the court rejected in Camacho.
As we therefore see no error, the judgment is affirmed.
So ordered.
By the Court (Rubin, Desmond & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: December 31, 2020.