Opinion
14-P-174
02-19-2016
COMMONWEALTH v. ERIC G. CARPENITO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
This is the defendant Eric Carpenito's consolidated appeal from a jury conviction of voluntary manslaughter, on an indictment charging him with murder in the second degree, in violation of G. L. c. 265, § 13, and the denial of his motion for a new trial. The defendant contends that his conviction should be reversed for three reasons. First, the defendant argues that the judge erred when he instructed the jury on self-defense. Second, the defendant argues that the judge erred when he excluded a record indicating that the victim, David Lilley (Lilley), had been convicted of assault and battery on his mother, Janice Bunting (Bunting). Third, the defendant maintains that he received ineffective assistance of counsel during his trial. We affirm.
Bunting was deceased at the time of trial.
Background. We summarize the facts as the jury could have found them, in the light most favorable to the Commonwealth, reserving some facts for later discussion. Commonwealth v. Sanna, 424 Mass. 92, 93 (1997).
On May 24, 2011, around 10:00 P.M., the defendant telephoned 911 and informed the dispatcher that he had been fighting with Lilley and had inflicted stab wounds on him. The defendant and Lilley, who were roommates, had been involved in an altercation. The defendant claimed that Lilley "basically had [him] by the collar and [he] panicked." The defendant claimed self-defense because Lilley had him in a headlock from behind and he was afraid for his life because Lilley had told him he had been a Navy SEAL for twenty years. The defendant stabbed Lilley, who was pronounced dead shortly after he arrived at the hospital, three times with a knife that was on a desk near where they were fighting.
Lilley could be heard in the background moaning throughout the 911 call.
Joshua Schminky, a Navy Criminal Investigative Service employee testified that Lilley was in the Navy from March, 1986, until October, 1987, and was discharged under other than honorable conditions and that there was no record that he was a Navy SEAL or had trained to become one.
Discussion. 1. Jury instructions on self-defense. The defendant argues that the judge erred when he gave the jury instructions on self-defense because he said that the jury could not find that the defendant acted in self-defense if the Commonwealth proved that he "was the first to use or threaten deadly force and did not withdraw in good faith from the conflict and announce to the person he provoked his intention to withdraw and end the confrontation without any use of additional force." When reviewing a jury instruction "[w]e look to the charge as a whole to determine whether it fairly instructs the jury." Commonwealth v. Raymond, 424 Mass. 382, 386 (1997). "[T]he privilege to use self-defense arises only in circumstances in which the defendant uses all proper means to avoid physical combat." Commonwealth v. Benoit, 452 Mass. 212, 226 (2008), citing Commonwealth v. Niemic, 427 Mass. 718, 722 (1998).
In view of the entire jury instruction, the judge committed no error when instructing the jury on self-defense. Contrary to the defendant's argument, the instruction does not foreclose the availability of self-defense when one is the first to use deadly force. The entirety of the jury instructions articulated the circumstances in which the defendant was permitted to use deadly force. The judge also clearly explained the first aggressor principle, stating:
The judge instructed:
"The law does not permit retaliation or revenge. The proper exercise of self-defense arises from necessity of the moment and ends when the necessity ends. An individual may only use sufficient force to prevent occurrence or reoccurrence of the attack. The question of what force is needed in self-defense, however, is to be considered with due regard for human impulses and passions and is not to be judged too strictly.
"The Commonwealth satisfies its burden of proving that the defendant did not act in proper self-defense if it proves any one of the following five propositions beyond a reasonable doubt. First, that the defendant did not actually believe that he was in immediate danger of death or serious bodily harm from which he could save himself only by using deadly force. Deadly force is force that is intended or likely to cause death or serious bodily harm. Second, that a reasonable person in the same circumstances as the defendant would not reasonably have believed that he was in imminent danger of death or serious bodily harm from which he could save himself only by using deadly force. Third, that the defendant did not use or attempt to use all proper and reasonable means under the circumstances to avoid physical combat before resorting to the use of deadly force. Four, the defendant used more force than reasonably necessary under all the circumstances. Five, the defendant was the first to use or threaten deadly force and did not withdraw in good faith from the conflict and announce to the person he provoked his intention to withdraw and end the confrontation without any use of or additional use of force."
The explanation the judge gave on the first aggressor principle was from the model jury instructions on homicide articulated by the Supreme Judicial Court. See Commonwealth v. Chambers, 465 Mass. 520, 528 n.8 (2013), quoting from Model Jury Instructions on Homicide 28-29 & n.68 (2013).
"The right of self-defense cannot be claimed by a defendant who was the first to use or threaten deadly force because the defendant must have used or attempted to use all proper and reasonable means under the circumstances to avoid physical combat before resorting to the use of deadly force. A defendant who provokes or initiates such a confrontation must withdraw in good faith from the conflict and announce to the person he provoked his intention to withdraw and end the confrontation without the use of force or additional force. For the purpose of determining who attacked whom first in the altercation you may consider evidence of the deceased's past violent conduct, whether or not the defendant knew of it."We discern no error with the instructions given, which are in accord with the model jury instructions on self-defense, see Model Jury Instructions on Homicide 28-29 (2013). We do not view this instruction as being incompatible with the judge's instruction, also given in this case (and also included in the Supreme Judicial Court's model homicide instructions), that the defendant could use deadly force to defend himself if he had a reasonable but mistaken belief that he was in immediate danger of serious bodily harm or death. If the jury credited the evidence that the defendant stabbed Lilley only after Lilley grabbed him in a choke hold that the defendant believed to be life-threatening, the instructions, taken as a whole, would have permitted the jury to find a valid claim of self-defense. In any event, we also note that the defendant was not prejudiced by the instructions given. The defendant was charged with murder in the second degree but found guilty of the lesser included offense of manslaughter. As the judge noted in ruling on the motion for new trial, this suggested that the "jury concluded that the defendant reasonably feared the victim in determining that the mitigating factors of reasonable provocation and sudden combat and/or the use of excessive force in self-defense were present." See Commonwealth v. Whitman, 430 Mass. 746, 749-757 (2000) (explaining mitigating factors applicable to voluntary manslaughter).
2. Record of conviction of assault and battery on Bunting. The defendant argues that the judge erred when he excluded Adjutant evidence which indicated that Lilley was convicted of assault and battery on Bunting. "[W]here 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." Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005).
The judge did not abuse his discretion when he declined to admit Lilley's record of assault and battery on Bunting even though the judge admitted the record of assault and battery on Thomas Boyden (Boyden), and the testimony regarding the assault on Boyden, as Adjutant evidence. Boyden testified in a voir dire about the altercation that took place between Lilley, Lilley's brother, Bunting, and himself. Boyden testified that he thought the police report was "embellished" and did not remember Lilley touching Bunting. Furthermore, Lilley did not plead guilty to the assault and battery against Bunting and Boyden, but admitted to sufficient facts and the case was continued without a finding. It was well within the judge's discretion to exclude the record of the assault and battery on Bunting.
3. Ineffective assistance of counsel. The defendant claims trial counsel was ineffective for failing to specifically elicit from John Pavidis (Pavidis), during direct examination, that the defendant feared Lilley and that the defendant thought that Lilley could beat him up. We review the claim of ineffective assistance of counsel under the familiar standard established in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (whether "behavior of counsel f[ell] measurably below that which might be expected from an ordinary fallible lawyer . . . [and] whether it has likely deprived the defendant of an otherwise available, substantial ground of defence"). Generally, ineffective assistance of counsel is not established merely by showing counsel failed to introduce evidence. See Commonwealth v. Medina, 20 Mass. App. Ct. 258, 261 (1985). Here, this evidence had been presented through the testimony of other witnesses. Accordingly, the failure of the defendant's trial counsel to elicit cumulative evidence from Pavidis was not ineffective assistance of counsel. See Commonwealth v. Britt, 465 Mass. 87, 94 (2013).
Judgment affirmed.
Order denying motion for new trial affirmed.
By the Court (Trainor, Agnes & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 19, 2016.