Opinion
15-P-1425
07-21-2017
COMMONWEALTH v. Nicholas C. PILALAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of murder in the second degree. He filed a posttrial motion, pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995), seeking to reduce the verdict to manslaughter; the trial judge denied the motion. The defendant now appeals, asserting that the motion should have been allowed. We affirm.
The defendant was indicted and convicted after he fatally stabbed a man during a physical altercation arising out of his persistent and heated verbal exchanges with two groups of strangers, whom he had accosted shortly after midnight while he was driving alone on a rural street near his home. In denying the motion, the judge concluded that, while it was a "very close" call, there was no weakness in the evidence or other reason to suggest that the verdict resulted in a miscarriage of justice. The defendant now asserts that the judge ignored critical evidence suggesting that he had acted in a heat of passion upon reasonable provocation and that a voluntary manslaughter conviction would be more consonant with justice. Having reviewed the record and the judge's detailed and thoughtful memorandum of decision, we conclude that the ruling did not amount to an abuse of discretion, and therefore affirm.
Factual background. The evidence presented at trial, which included the transcript from a lengthy interview the police conducted with the defendant, Nicholas Pilalas, painted the following picture. Shortly after midnight on November 6, 2011, the twenty-six year old Pilalas was driving alone in his Chevrolet Blazer automobile on rural Cedar Street in the town of Middleborough, heading toward his nearby home, when he encountered a group of five young adults walking in the opposite direction. The group, consisting of Jodie Frye, Gareth Jenkins-Masterson, Jordan Borges, Thomas Gomes, and Ashlianna Felix, was walking back to Frye's home, which was nearby, after having visited two abandoned properties to do some "ghost hunting" and look at the stars. Neither the defendant nor any members of Frye's group had consumed alcohol or drugs that evening.
The sight of Frye's group, none of whom he knew, apparently piqued Pilalas's curiosity, so he reversed direction and eventually pulled his car up next to the group. Pilalas rolled down his window and began questioning the members of the group, demanding to know who they were, where they lived, and what they were doing out so late in his "hood." Members of the group were unnerved by Pilalas's aggressive approach and urged him to let them be. As Frye's group resumed walking down Cedar Street, however, Pilalas followed in his car, continuing to engage them verbally. He noted more than once that he could run the group over with his car. He asked whether they watched horror movies and suggested that, for all they knew, he could be an axe murderer, who could kill them without anyone knowing. He also reportedly stated that he could have a body in the back of his car.
The witness accounts differ as to the number of times Pilalas drove past Frye's group before he stopped the first time and the direction his car was facing at certain times.
Some members of Frye's group testified that they did not take these statements seriously. Pilalas also reportedly suggested that he could retrieve a gun and come back and "stab" them with it, a verbal blunder which Felix found to be "silly" and caused Frye's group to laugh.
Members of the group continued to ask Pilalas to leave them alone, with Frye specifically telling the defendant to "fuck off." Pilalas responded, calling Frye a "cunt" and a "bitch." Then, after Frye called him a "fat prick," Pilalas got out of his car and angrily approached the group, rolling up his sleeves and lifting up his sweatshirt, at which point some in Frye's group thought they observed a knife about his waist. Pilalas demanded that Frye apologize, which she refused to do, and the two continued yelling at one another. Concerned that Frye was escalating the situation, Borges and Gomes stepped in. Gomes, whom Pilalas later described as the "peacemaker" in the group, tried to defuse the situation by apologizing for any miscommunication, asking the defendant his name, and offering him a cigarette. Pilalas accepted the cigarette and seemed to calm down. Eventually, he returned to his car and started to drive away toward the intersection of Cedar and Plympton Streets, at the center of which was a large, triangular shaped traffic island.
Pilalas told the police the knife may have been in his front right pocket at that time.
Borges testified that while Pilalas was rude, Frye was even ruder, calling Pilalas "an f–––ing asshole," "dumb son of a bitch," "stupid mother fucker," "douche bag," and "fucking faggot." Frye acknowledged that she was "pretty pissed off" and "running her mouth."
Multiple witnesses testified that the defendant identified himself by the name "Azriel."
In the meantime, another car, a Ford Mustang, came upon the scene, containing three young adult males, Dylan Pitts, Andrew Walker (the driver), and twenty-year old Dalton Goulart. They were coming from a party in a neighboring town. According to the trial testimony, Walker had not consumed any alcohol or drugs that evening, while Pitts and Goulart had consumed "a couple" and "a few" beers, respectively. As they approached the intersection of Cedar and Plympton Streets, their attention was drawn to Frye's group; members of the group appeared to be yelling at someone in a car, later revealed to be Pilalas. Goulart recognized Frye, whom he had not seen in several years, and called out to her. Frye then approached Walker's car and informed Goulart's group that Pilalas had been harassing them.
Pitts testified that he could hear Pilalas screaming "cunt" and "bitch" at Frye as they pulled up in Walker's car, and this angered him.
By this time, Pilalas had reached the stop sign at the opposite end of the triangular intersection. After hearing what Frye had to say, Goulart and/or Pitts started yelling angrily at Pilalas, who, according to his statement hours later, was "pissed off" at this turn of events and quickly drove his car around the island and pulled up next to Walker's car, with the two automobiles now facing in opposite directions. Another heated verbal exchange ensued between Goulart's group, all three of whom had, at some point, gotten out of Walker's car, and Pilalas, who was still seated in his own car, with the engine running. Pilalas demanded to know who the three newcomers were and what their "problem" was. The members of Goulart's group, in turn, were all standing at the driver's door of Pilalas's car, yelling back, advising him to leave, and chastising him for directing vulgarities at Frye. Pilalas responded, stating that the three newcomers had no right to tell him to leave, and asking, "What are you, the fucking sheriff?"
Pilalas told police that he would have driven in the same direction, directly past Walker's car, to return to his home on nearby Soule Street.
According to at least two witnesses, one of the members of Goulart's group then struck the hood of Pilalas's car, possibly more than once. Hours later, Pilalas also told the police that Walker had attempted to open the door of his car, but was unable to do so because it was locked. Meanwhile, Pitts, who acknowledged acting aggressively and getting progressively angrier as the defendant continued to direct vulgarities at Frye, then slapped the cigarette that Pilalas was smoking out of his hand. Pilalas told the police that he responded to this with words to the effect of, "What's your fucking problem. Don't touch my shit." According to Pitts, Pilalas responded by saying, "I'm going to fucking kill you." By his own admission, Pitts then "slammed" the side-view mirror on Pilalas's car and effectively invited the defendant to try to kill him. Pilalas viewed Pitts's actions as a ploy to lure him out of his car. Even though nothing was blocking the path of his car or otherwise preventing him from driving away in either direction (forward or reverse), Pilalas did get out of the car. Before doing so, Pilalas also retrieved a knife that he kept in his car and placed it in his sweatshirt pocket "for protection."
Pilalas told the police that Walker's attempt to open the door was "illegal" and "an invasion" that he viewed as escalating matters to another level and as providing him with grounds for defending himself.
Pilalas told the police that Pitts was acting "furious," "bouncing up and down," and "screaming and yelling and going nuts over nothing."
Pitts testified at trial that Pilalas waved the lit cigarette in his face, but Pitts had not mentioned that in his prior statements to the police or when he appeared before the grand jury.
Frye, Borges, and Walker similarly testified that, at some point during this exchange, Pilalas made reference to killing someone or everyone, although neither Borges nor Walker had ever mentioned that in their prior statements, interviews, or grand jury testimony.
When the police inspected Pilalas's car later that day, a "chunk" of the side-view mirror was missing.
Felix testified that a member of Goulart's group told Pilalas to get out of his car.
As Pilalas got out of his car, Pitts stepped back to let him out. According to the defendant, he told Pitts, "You made the wrong fucking move." He then approached Pitts and asked him, "What's your fucking problem?" Pitts responded by pushing him. The two then exchanged shoves, before Pitts punched Pilalas in the eye. According to Pitts, however, Pilalas charged at him as soon as he got out of the car and grabbed the collar of his shirt, whereupon Pitts slapped Pilalas's hand away. Then, when Pilalas grabbed him again, Pitts punched him in the eye. Other witnesses testified that Pilalas initiated the physical contact by pushing or grabbing Pitts. All of the witnesses agreed that the punch Pitts landed to Pilalas's left eye was solid, staggering the defendant and immediately causing a noticeable black eye.
The descriptions of what happened after Pitts punched Pilalas in the eye varied in some respects from witness to witness. According to Pilalas, the punch caused "everything to go black" for a moment. Once he gathered himself, he went to fight back at Pitts, only to have two others, whom he assumed were Goulart and Walker, join with Pitts and start punching him about the head and face. One or two others from Frye's group also joined in. Pilalas estimated that they hit him twenty to thirty times. As he described it to police hours later, "I was circled with people all around me.... So, I've got at least five guys punching me in the face. And it's at this time when I take the knife out of my pocket and start just fucking swinging it blindly." Pilalas stated he was not making a stabbing motion with the knife—"It wasn't my intention to stab someone." He insisted that he was just trying to ward off the others and didn't think the knife connected with anyone. When questioned by police regarding his state of mind, Pilalas said, "I was worried for my safety.... [T]here was several people around me, I was extremely worried and looking out for myself. I was defending myself, self-defense." After a short while, the others did, in fact, back off. At that point, Pilalas got in his car and headed toward his house. Goulart's group, meanwhile, "scrambled" to get in Walker's car. When Pilalas pulled into his driveway moments later, he saw a police car pull in behind him and he put his hands out the window, "[n]ot wanting to cause any trouble."
In contrast, Jenkins-Masterson testified that Goulart and Walker rushed in to break up the fight between Pitts and Pilalas after Pitts landed his punch.
When pressed by police, Pilalas said he "was scared" and that his "knees were buckling a bit."
Pilalas's perception that he was surrounded and being hit by multiple individuals was supported to some extent by other witnesses. Borges testified that Goulart, Walker, and Pitts all started beating Pilalas, punching him hard at least twenty times, after Pitts landed his punch to the defendant's eye. Deeming the situation "unfair" and concerned that Pilalas might get hurt, Borges stepped in and separated Goulart's group from the defendant. Frye testified that she herself grabbed Pilalas by his shirt and pulled him backward as soon as he and Pitts started shoving one another. Once she let Pilalas go, Pitts punched the defendant. A "brawl" then broke out between Goulart's group and Pilalas—"It was three on one." To Frye, the four appeared like a "ball of people" with "arms flailing around." Gomes testified that Pilalas fell back and covered his face with his elbow upon being punched in the eye. Gomes then saw Pilalas reach into his pocket with his other hand, pull out a knife, and start "jabbing wildly" without any particular direction. Goulart, Pitts, and Walker were all around Pilalas at this point. Gomes then heard a "popping" sound, after which he observed a break develop between Goulart's group and the defendant.
Frye testified that, before Pilalas got out of the Blazer, she had to hug Goulart to "back him off" and "calm him down" because he was coming to her defense and demanding to know if Pilalas was "fucking with" her.
Pitts and Walker both described a more limited fight, lasting considerably less than a minute. According to Pitts, Pilalas stumbled backward and put his hand over his eye after Pitts first punched him. Pilalas then "fumbled around" near the front pocket of his sweatshirt and came charging back at Pitts, who tried to punch him a second time. The second punch glanced off Pilalas's jaw and the defendant fell into Pitts. At that point, Walker and Goulart grabbed Pilalas and threw him into the side of his own car. Pitts never saw Pilalas with a knife. According to Walker, Pilalas, after Pitts punched him in the eye, stumbled backward into Walker and Goulart, both of whom grabbed him and pushed him toward his car. The next thing Walker recalled seeing was Pilalas standing with a knife in his hand, "flipping" it shut. Walker yelled at Pilalas to leave, which he did. Walker then returned to his own car with Goulart and Pitts.
Pitts told the police that Goulart and Walker shoved the defendant "over the hood" of his car.
By all accounts, no one realized that Goulart had been stabbed during the altercation. It appears that Goulart himself may not have realized it until after he climbed into the back seat of Walker's two-door car, for it was at that moment that he announced he had been stabbed and needed to go to the hospital. Walker then started to drive away, only to be stopped immediately by one of two Middleborough police officers who had already responded to the scene in their separate marked cruisers. Goulart got out of Walker's car and quickly collapsed, bleeding from the chest and experiencing difficulty breathing. An ambulance was summoned and transported him to a nearby hospital, where he was pronounced dead a short time later. An autopsy revealed the cause of death to be a penetrating stab wound to the heart, two and one-half inches deep.
The police officer who stopped Walker's car then left to pursue Pilalas to his house, while the second officer attended to Goulart.
The blade of Pilalas's knife, which was recovered from his car when he was arrested, measured four inches in length, suggesting that it did not go all the way in. There were no twists or turns to the wound path. The medical examiner opined that the force necessary to inflict the wound was force sufficient "to perforate the skin."
Pilalas was also taken to an area hospital within hours of the altercation. There, he was observed to have a black left eye, some visible scratches on his neck, and tenderness in the lower right side of his chest. He was then taken to the Middleborough police station, where he waived his Miranda rights and submitted to an approximately three-hour interview.
Procedural background. Pilalas was indicted for murder, G. L. c. 265, § 1, in connection with Goulart's death, and on various other charges arising from the altercation with the other members of the Frye and Goulart groups. On October 28, 2014, nearly three years to the date of the altercation, trial began on the murder charge and the other charges that then remained. After eight days of trial, the jury returned a verdict, finding Pilalas guilty on all charges, including, with respect to Goulart's death, murder in the second degree. Pilalas was sentenced the same day to a mandatory life term in State prison on the murder conviction.
Days before trial, two counts of assault by means of a dangerous weapon were dismissed on the Commonwealth's motion and the defendant pleaded guilty to one count of threatening to commit murder.
Pilalas also was found guilty on two counts of assault by means of a dangerous weapon, G. L. c. 265, § 15B(b ), on Pitts and Walker, and one count of assault and battery, G. L. c. 265, § 13A, on Pitts. He was sentenced on those convictions, as well as the count of threats to commit murder that he pleaded guilty to prior to trial, with all of those sentences deemed served due to time he spent in pretrial detention.
Following the verdict, Pilalas filed the motion at issue, asking the trial judge to exercise his discretion, pursuant to Mass.R.Crim.P. 25(b)(2), to reduce the murder in the second degree conviction to manslaughter. The Commonwealth opposed the motion. After a hearing, the trial judge issued a twenty-three page memorandum of decision, denying the motion. This appeal followed.
The motion did not address the convictions on the other charges and Pilalas has not challenged them on appeal.
Standard. Rule 25(b)(2) provides, in pertinent part, that "[i]f a verdict of guilty is returned, the judge may on motion set aside the verdict and ... order the entry of a finding of guilty of any offense included in the offense charged in the indictment or complaint." The "guiding principles" for both a trial judge's consideration of a rule 25(b)(2) motion and an appellate court's review of the trial judge's ruling, are as follows:
"A trial judge has the authority, pursuant to rule 25(b)(2), to reduce a verdict, despite the presence of sufficient evidence to support the jury's verdict.... Although the purpose of the power to reduce a verdict is to ensure that the result in every case is consonant with justice, ... the power is to be used sparingly, ... and the judge is not to sit as a second jury.... A most important consideration is whether the jury verdict is markedly inconsistent with verdicts returned in similar cases.... Our role is not to decide whether we would have acted as the trial judge did. The judge has the advantage of face to face evaluation of the witnesses and the evidence at trial and is therefore in a far better position than we[ ] to make the judgment required by [ rule 25(b)(2) ].... We decide only whether the judge abused his discretion or committed other error of law....
"A judge's discretion to reduce a verdict pursuant to rule 25(b)(2) is appropriately exercised where the weight of the evidence in the case, although technically sufficient to support the jury's verdict, points to a lesser crime. Thus, for example, where evidence of premeditation was slim, the judge did not abuse his discretion in reducing a verdict of murder in the first degree to murder in the second degree.... Similarly, where the weight of the evidence suggests that the defendant did not act with malice, a murder verdict may be reduced to manslaughter...."
Commonwealth v. Pagan, 471 Mass. 537, 542 (2015), quoting from Commonwealth v. Chhim, 447 Mass. 370, 381–382 (2006). A "judge considering a motion to reduce a verdict under Mass.R.Crim.P. 25(b)(2) may rely on essentially the same considerations as does [the Supreme Judicial Court] when deciding whether to reduce a verdict to a lesser degree of guilt pursuant to G. L. c. 278, § 33E." Commonwealth v. Reavis, 465 Mass. 875, 891-892 (2013) ( rule 25 [b][2], like § 33E, "may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge's own error, or ... the interaction of several causes").
Analysis. Our analysis begins with the trial judge's memorandum of decision. Since the defendant does not contend that the trial judge committed an error of law in denying the rule 25(b)(2) motion, we review the memorandum of decision to determine whether "the judge made a clear error of judgment in weighing the factors relevant to the decision ... such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (establishing the standard for a finding of abuse of discretion) (citations and quotations omitted). It does not. The decision is thoughtful and thorough, and it addresses all of the arguments advanced in the motion, reflecting a firm grasp of the evidence and applicable law. The memorandum of decision also reflects the trial judge's consideration of all of the relevant factors. Accordingly, we conclude that, whether or not we would have reached the same decision, this is not one of those "exceedingly rare" occasions where a judge abused his or her discretion under rule 25(b)(2). Commonwealth v. Cinelli, 389 Mass. 197, 204-205 (1983).
In its simplest terms, "to justify a reduction in the verdict [under rule 25(b)(2) ], there must be some weakness in the critical evidence, or some weakness in the evidence coupled with trial error." Commonwealth v. Lyons, 444 Mass. 289, 291-292 (2005) (citations omitted). Here, the trial judge's decision reflects that he focused carefully on the evidence. He provided the jury with the full panoply of instructions arguably warranted by the evidence, including murder in the first and second degree, and voluntary and involuntary manslaughter. At trial, the judge also instructed the jury on self-defense, and, of particular note, given the thrust of the subsequent motion, the three mitigating circumstances that would warrant a voluntary manslaughter verdict: heat of passion upon reasonable provocation; heat of passion induced by sudden combat; and use of excessive force in self-defense. The defendant has not suggested that any additional instructions were required or that there was error in the substance of those that were given.
According to the defendant, the judge committed an error of judgment when, in analyzing the possibility that the defendant acted in a heat of passion upon reasonable provocation, he failed to consider critical evidence. Specifically, the defendant suggests that the judge failed to consider his statements to the police to the effect that, once he got out of his car after the verbal exchange with Goulart's group, it was Pitts who initiated the physical altercation by pushing him and then punching him in the eye. The defendant further suggests that the judge ignored his statement, which was supported, to some extent, by Borges, Frye, and Gomes, that he was surrounded by five or more people, including Goulart, who were hitting him about the head and face, before he resorted to pulling out his knife. In short, he argues that the judge failed to consider "events" that occurred after he got out of his car to confront Goulart's group as relevant to the issue of provocation.
Pilalas cites the trial judge's statement that certain "events" did not "warrant[ ] even an instruction, much less a conclusion by the jury that the defendant had been reasonably provoked." The trial judge at that point, however, was merely referring to defense counsel's suggestion in closing argument that there was "a lot of provocation" from Goulart's group before Pilalas got out of his car, including the slamming of the hood of his car, the smashing of the side-view mirror, and the slapping of the cigarette out of his hand. The judge was not suggesting those were the only "events" relevant to the theory of provocation.
Contrary to the defendant's assertion, however, the judge did consider that evidence, albeit in the broader context of the related theories of excessive force in self-defense and reasonable provocation. Consider the following excerpts from the memorandum of decision:
While the two voluntary manslaughter theories are distinct, and while the theory of self-defense does not automatically incorporate a theory of reasonable provocation, the theories of reasonable provocation and excessive force in self-defense are closely related. See Commonwealth v. Acevedo, 446 Mass. 435, 448 (2006) ; Commonwealth v. Glover, 459 Mass. 836, 841-842 (2011).
"The defendant told the police that after he got out of the car, Pitts grabbed him by the collar,[ ] thereby initiating the fight that ensued. Considered in the light most favorable to the defendant, the jury could have credited this evidence and found that the defendant did not initiate the physical conflict. There was ample evidence, however, in the testimony of Borges, Walker, and Pitts himself, that it was the defendant who seized Pitts first, and that Pitts then responded by punching the defendant. The jury was entitled to credit the latter testimony, and to discount the defendant's version as self-serving and inconsistent with other evidence.
"...
"The jury could have ... disbeliev[ed] as self-serving or otherwise false the defendant's unsworn statement to the police that he was encircled and being struck by five or more people.... [The emergency room doctor's] testimony was that after the fight, the defendant displayed only a bruised eye (consistent with the punch from Pitts) and some ‘superficial linear abrasions,’ not ‘no abrasions per se.’ In effect, no physical evidence supported the defendant's account of suffering ‘multiple punches.’ "
While not material, Pilalas told the police that Pitts initiated the physical altercation by pushing him, not by grabbing his collar.
"[U]nder rule 25(b)(2), a judge may review all the evidence, including the defendant's version of the facts, in deciding whether the verdict comports with justice ..." (emphasis added). Commonwealth v. Woodward, 427 Mass. 659, 668 (1998). The judge did that here and concluded that, although it was a "very close" call, the murder in the second degree verdict was supported by the evidence and was just.
In arriving at that conclusion, the judge also considered, as he should have, how the facts in this case compared to those in other cases where murder in the second degree convictions were reduced to manslaughter, most notably Commonwealth v. Jones, 366 Mass. 805 (1975), and Commonwealth v. Keough, 385 Mass. 314 (1982). Several of the comparisons and contrasts drawn by the judge are worth mentioning. As he noted, the present case shared several factors with other cases in which murder verdicts had been reduced. First and foremost, the incident here, involving a minor argument between complete strangers that rapidly escalated and resulted in the death of a human being, was, like the incidents in Jones and Keough, "senseless" and "tragic." Like the defendants in the other cases, Pilalas also had no prior criminal history. So, too, there was evidence that Goulart and other members of the Frye and Goulart groups, like the victims and the other actors in Jones and Keough, engaged in inflammatory and otherwise regrettable conduct as the events at issue unfolded. There was even some evidence that Goulart, like the victim in Keough, pursued contact with Pilalas, joining with Pitts and Walker in pummeling him.
While the defendant cited Jones and Keough extensively in his motion below, he has not referenced them on appeal. Instead, his brief cites extensively to Commonwealth v. Morales, 70 Mass. App. Ct. 526 (2007), a case in which a verdict was set aside due to an improper jury instruction to the effect that physical contact was a necessary component of either reasonable provocation or sudden combat required to reduce murder to voluntary manslaughter. Id. at 530-533. As no similar error was committed in this case, Morales has no material relevance.
At sentencing, the trial judge acknowledged that, while Pilalas bore legal responsibility for Goulart's death, there were others "who could reflect on the wisdom of their actions and what moral responsibility they have for the outcome of the events that night."
At the same time, as the judge noted, this case presents significant differences. Pilalas, unlike the defendants in Jones and Keough, was not under the influence of any alcohol or drugs on the night in question. He also appeared to be looking for a fight. He repeatedly injected himself into the lives of complete strangers, late at night on a rural road, and then reacted angrily when they told him repeatedly to leave them alone, to no avail. Twice he got out of his car, which was unobstructed at all times and could have carried him safely away, to confront those strangers in an aggressive manner. On the first occasion, the evidence suggests he had a knife on his person. On the second occasion, it is undisputed that he had a knife. As the judge noted, Pilalas's arming himself with an inherently dangerous weapon by itself permits an inference that he acted with malice. See Commonwealth v. Trinh, 458 Mass. 776, 784 (2011). Moreover, he took the knife with him on the second occasion for, in his own words, "protection." As the judge pointed out, a jury could reasonably conclude from this that the "deadly weapon was thus not carried ‘incidentally, but was brought purposely to the fight.’ Commonwealth v. Gaouette, 66 Mass. App. Ct. 633, 641 (2006)." Witnesses also testified that Pilalas expressed an intent to kill as he got out of the car the second time. Thus, even if Pitts initiated the physical altercation after Pilalas got out of his car, and even if Pilalas quickly found himself overwhelmed by multiple adversaries, including Goulart, he "came to fight, considered an escalation of the violence possible, and armed himself for it in advance by bringing [the knife]." Id. at 642. See Commonwealth v. Anderson, 408 Mass. 803, 805-806 n.1 (1990) (for there to be legally cognizable provocation, the "act must be the product of the provocation ... rather than some preexisting ... intention to kill or [grievously] injure"). In light of all of this, the judge concluded that there was sufficient evidence for the jury to conclude, as it did, that Pilalas acted with malice, not in a heat of passion upon reasonable provocation or even through the use of excessive force in self-defense.
To that end, even if, arguendo, the judge had overlooked some evidence of provocation in considering the motion, there is no reason to believe that the jury did. To the contrary, not only were the jury instructed, and properly so, regarding provocation, the only question they asked during deliberations concerned that very issue. As the judge concluded, "[i]t is apparent that the jury thoroughly considered but completely rejected the argument that the defendant acted in self-defense or out of reasonable provocation." In turn, we conclude that the judge, who sat through the trial and evaluated the witnesses and evidence firsthand, acted within his discretion in deferring to the jury's verdict.
The jury asked, in effect, whether they could consider any provocation by Pitts as a mitigating circumstance relative to Pilalas's stabbing of Goulart, or whether the provocation had to come from Goulart himself. With the assent of both parties, the judge instructed the jury that, "[i]n order to have the mitigating circumstance of provocation, provocation must either come directly from the victim himself or by the victim acting in concert with the person or persons creating the reasonable provocation at the time of the provocation."
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Order denying motion for judgment of acquittal notwithstanding the verdict affirmed.