Opinion
No. 13–P–1594.
10-14-2016
COMMONWEALTH v. Jonathan CARVALHO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In the defendant's appeal from his conviction of murder in the second degree, he argues that (1) the trial judge committed numerous errors in her jury instructions, (2) the prosecutor improperly appealed to juror sympathy during her opening and closing arguments, (3) his motion to suppress certain statements he made to the police should have been allowed, and (4) the judge should have required a reason for one of the Commonwealth's peremptory challenges of a potential juror. We affirm.
The defendant was also convicted of carrying a firearm without a license. He makes no separate argument regarding that conviction in this appeal.
Background. We recite the facts in the light most favorable to the defendant in order to determine whether he was entitled to jury instructions on self-defense. See Commonwealth v. Pike, 428 Mass. 393, 396 (1998). We reserve further factual background for the discussion as required to address the remaining issues raised by the defendant.
Shortly after 11:00 A.M. on August 10, 2010, Hugo Valladares left work and returned to his apartment on the first floor of 230 Central Avenue in Chelsea. The defendant, a childhood friend of Valladares, was at the apartment. The defendant had been dating Daisy Lopez for several months. Lopez's former boy friend, Emanuel Flores, was friends with the victim, Luis Rodriguez. The victim's girl friend, Anmeris Burgos, lived on the second floor of the same building as Valladares. The defendant and Emanuel Flores had been involved in a dispute over Lopez, which had led to several prior physical altercations. The victim had also become involved in this dispute, resulting in a “beef” between the victim and the defendant. The defendant had told Valladares that he and the victim were going to “squash the beef,” or settle the dispute, through a fist fight. The victim had also told Valladares that he and the defendant were going to fight in order to settle the “beef.”
On that morning, when Valladares opened the door to his apartment and found the defendant inside, the defendant told Valladares that the victim's car was outside. He asked Valladares to go upstairs to Burgos's apartment and get the victim, so that he and the defendant could “scrap it out.” The victim eventually met the defendant in the parking lot outside of 230 Central Avenue. Geraldo Flores, who witnessed the altercation from the other side of the parking lot, testified that the two walked toward each other and met in the middle of the parking lot. The victim put his fists up while the two were circling one another. The victim was saying “come on, let's go” and advancing on the defendant while the defendant backed away and said, “hold on, relax” and “let me talk to you.”
Geraldo Flores is of no relation to Emanuel Flores. Because they share a surname, we refer to them using their first names.
As they moved closer to Geraldo, the victim still coming toward the defendant, Geraldo turned to walk away. Two seconds later, he heard the first gunshot. Geraldo turned back to face the pair and saw the defendant, about four yards away, pointing a gun at the victim as the victim, about ten yards away, ran back toward the door to 230 Central Avenue. The defendant fired a second shot, hitting the victim in the back and causing him to stumble into the door. A third shot was fired as Geraldo ran from the scene. The victim, who was unarmed, suffered a total of three gunshot wounds. The wound to his back proved fatal, and he died shortly after being taken to the hospital. A jury convicted the defendant of murder in the second degree and possession of a firearm without a license.
Discussion. 1. Jury instructions. The defendant takes issue with various aspects of the judge's instructions to the jury, which included the charges of murder in the first degree, murder in the second degree, and voluntary manslaughter. We consider in turn each of the defendant's claims of error.
a. Self-defense. The defendant contends that it was error for the judge to deny his request for a self-defense instruction. In a case such as this, a defendant who employed deadly force is entitled to a self-defense instruction if the evidence warrants “at least a reasonable doubt that the defendant: (1) had reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force, (2) had availed himself of all proper means to avoid physical combat before resorting to the use of deadly force, and (3) used no more force than was reasonably necessary in all the circumstances of the case.” Commonwealth v. Harrington, 379 Mass. 446, 450 (1980).
The defendant concedes that he used excessive force, but argues that he was nevertheless entitled to an instruction on self-defense employing excessive force.
The defendant was not entitled to a self-defense instruction, because the evidence, viewed in the light most favorable to him, did not raise even the possibility that he used all reasonable, available means of retreat before resorting to the use of force. Even assuming that the victim was the aggressor and the defendant reasonably feared imminent risk of death or serious bodily harm, the evidence is uncontroverted that the altercation took place in the middle of the day, in a parking lot abutting a public street. There was no evidence that the defendant's means of egress was blocked, or that he, armed with a gun, could not have simply run away from the victim's raised fists. See Commonwealth v. Curtis, 417 Mass. 619, 632 (1994) ; Commonwealth v. Berry, 431 Mass. 326, 335 (2000) ; Commonwealth v. Espada, 450 Mass. 687, 693 (2008).
Necessity is the touchstone of self-defense. “The right of self-defence does not accrue to a person until he has availed all proper means to avoid physical combat.” Commonwealth v. Kendrick, 351 Mass. 203, 212 (1966). See Pike, supra at 399 (defendant must use every available means of escape available before acting in self-defense). Because the evidence, viewed in the light most favorable to the defendant, does not show that he was entitled to use self-defense, the trial judge did not err in failing to so instruct the jury.
b. Reasonable provocation. Defense counsel made a pretrial request for an instruction informing the jury that heat of passion upon reasonable provocation may arise from the victim's “aggressive approach,” which need “not include ... that the victim struck a blow.” The trial judge instead gave the model jury instruction on reasonable provocation, which states that “physical contact, even a single blow, may amount to reasonable provocation.” Model Jury Instructions on Homicide 29 (1999). The defendant objected and maintains on appeal that the instruction improperly conveyed to the jury that physical contact was required in order for them to conclude that the victim's approach constituted reasonable provocation.
Reading the instructions as a whole, see Commonwealth v. Jiles, 428 Mass. 66, 71 (1998), we do not believe reasonable jurors would have understood that they could not find reasonable provocation in the absence of physical contact. The judge's instructions stated generally that reasonable provocation is that “which would likely produce [in] a reasonable person such a state of anger, fear, passion, fright and nervous excitement which would have overcome his capacity for reflection and restraint and did actually produce such a state of mind of the defendant.” This closely tracked the model instructions then in effect. See Model Jury Instructions on Homicide 28. This avoided any possibility that the jury would reasonably have interpreted the phrase “physical contact” in the manner suggested by the defendant. The case the defendant relies upon, Commonwealth v. Morales, 70 Mass.App.Ct. 526, 531–533 (2007), is not on point, as there this court held it error for the trial judge to have expressly instructed the jury that physical contact was required in order to find reasonable provocation.
c. Sudden combat. In her instructions on mitigating circumstances, the judge instructed the jury that “[s]udden combat involves unplanned combat.” The defendant takes issue with these instructions for the first time on appeal, arguing that neither the 1999 nor the 2013 versions of the Model Jury Instructions on Homicide includes the word “unplanned.” He argues that this term led the jury to believe that combat could not be sudden if, as in this case, the meeting at which the combat took place was planned. We disagree. Nothing in the judge's instructions suggested that “unplanned combat” could not occur at a meeting that was planned. The jury were free to consider whether the alleged assault of the defendant by the victim was “sudden” so as to mitigate the charge from murder to voluntary manslaughter.
2. Alleged prosecutorial misconduct. The defendant argues that a new trial is required because the prosecutor improperly played on the jury's sympathy and emotion during her opening and closing statements by repeatedly referring to the fact that the victim was an expectant father. He argues that the error was compounded by “the constant presence in the courtroom of a picture of the deceased, as well as the crying and angry family members of the deceased exhibiting themselves to the jury venire and the jury.” He contends that the judge erred in failing to give a curative jury instruction regarding the “spectacle” of family members in the courtroom combined with the prosecutor's comments.
Among the challenged conduct, only the prosecutor's own comments are attributable to the Commonwealth. Furthermore, defense counsel objected only to the prosecutor's opening statement. We discern no error, as the prosecutor's comments were supported by testimony and within the scope of permissible argument. “The prosecutor is entitled to tell the jury something of the person whose life [has] been lost in order to humanize the proceedings.” Commonwealth v. Rodriguez, 437 Mass. 554, 566 (2002) (quotation omitted). Her three comments that the victim was about to become a father again (two of which described the anticipated testimony of two prosecution witnesses) did not rise to the level of improper appeals to sympathy or emotion. Contrast Commonwealth v. Santiago, 425 Mass. 491, 494–495 (1997) (twelve references to victim's being seventeen and pregnant); Commonwealth v. Rosa, 73 Mass.App.Ct. 540, 545 (2009) (nineteen references to victim's being a firefighter or being on fire engine). See Mass. G. Evid. § 1113(b)(3)(C) & note (2016). Even if the comments had amounted to prosecutorial misconduct, we have considered the factors bearing on whether such misconduct requires reversal, see Santiago, supra at 500, and concluded that reversal would not be warranted here.
3. Miranda issues. Shortly after the shooting, the defendant boarded a bus bound for Florida. He was apprehended en route in Savannah, Georgia, and held at the county jail in that city. A Massachusetts State police trooper and a detective flew to Savannah the following day. They took custody of the defendant, transported him to the Savannah airport, and traveled with him by plane to Atlanta. The three then boarded a connecting flight from Atlanta to Boston. During the trip, the defendant made numerous statements to both the detective and the trooper, some of which implicated him in the crime. The defendant was not advised of his Miranda rights until he was booked at the Chelsea police department following his arrival in Boston.
The defendant filed a pretrial motion to suppress all of his statements made during the trip. The motion judge denied the motion, concluding that although the defendant was in custody, none of his statements between Savannah and Boston was the product of police interrogation. She found that the detective and the trooper did not engage the defendant in conversation or do anything to provoke or elicit his statements, which were “spontaneous and volunteered” by the defendant of his own accord. She thus concluded that the officers were not required to provide Miranda warnings.
The defendant contends that, under art. 12 of the Massachusetts Declaration of Rights, the statements should have been suppressed because the atmosphere of “sustained and prolonged custody in close quarters with two officers” was “presumptively coercive” and Miranda warnings were required. We disagree. Miranda warnings were not required simply because the defendant was in police custody. See Commonwealth v. Torres, 424 Mass. 792, 796–797 (1997) (Miranda doctrine safeguards defendant's rights during custodial interrogation, not mere custody itself). Custody during a long period of transport does not itself require that the defendant be Mirandized. See Commonwealth v. Figueroa, 56 Mass.App.Ct. 641, 645 (2002). We decline the defendant's invitation to expand the protections afforded by art. 12 by holding that Miranda warnings are required under these circumstances.
4. Peremptory challenge to juror no. 3. The Commonwealth exercised six peremptory challenges to prospective jurors, including juror no. 3, who was Hispanic. The judge then asked, “[A]re there any other [people] of Hispanic descent still on the jury?” The prosecutor did not know the answer, and neither she nor the judge pursued the matter further. Defense counsel did not object. Relying on Commonwealth v. Maldonado, 439 Mass. 460, 463 n.5 (2003), the defendant claims on appeal that the judge's sua sponte inquiry into the challenge was, in effect, a prima facie finding of impropriety in jury selection under Commonwealth v. Soares, 377 Mass. 461, 490, cert. denied, 444 U.S. 881 (1979), requiring the judge to ask the prosecutor for an explanation. We disagree.
In Maldonado, unlike in this case, the judge, on her own initiative, “demanded a reason” for the prosecutor's challenge to the only black potential juror. 439 Mass. at 461. The Supreme Judicial Court held that the judge's sua sponte inquiry included an implicit finding under Soares that a prima facie case of discrimination was made. See id. at 463 n.5. Here the judge made no such inquiry and thus no such implicit finding. There was no error.