Opinion
No. 11–P–2026.
2013-09-12
COMMONWEALTH v. Arnaldo FLORES.
By the Court (GRAINGER, BROWN & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury of murder in the second degree and possession of a firearm without a firearm identification card. His claims on appeal lack merit. We will address each in turn.
1. Sufficiency of the evidence. The defendant argues that the evidence of murder was insufficient because there was proof he acted in self-defense or had used excessive force in self-defense and the prosecution failed to carry its burden to disprove either beyond a reasonable doubt.
That evidence is conflicting does not demand a conclusion that it is insufficient. See Commonwealth v. Merry, 453 Mass. 653, 660–661 (2009).
Accordingly, the defendant claims the killing was not unlawful or, alternatively, that malice was mitigated by the use of excessive force in self-defense and his conviction of murder must be reduced to voluntary manslaughter. See Commonwealth v. King, 460 Mass. 80, 83 & n. 2 (2011). See also Commonwealth v. Silva, 455 Mass. 503, 525–526 (2009). The defendant focuses on the narrow swath of facts that suggest he “was suddenly aggressed by an armed drug-dealer threatening to kill and rob him” and thus acted in self-defense.
The flaw in the defendant's reasoning is that the jury were not required to credit any of the evidence supporting his contention. See Hartfield v. Commonwealth, 443 Mass. 1022, 1022–1023 (2005).
We pass the question whether the defendant's denial of any intent to kill the victim or to discharge the weapon undercuts his theory of self-defense. See Commonwealth v. Turner, 24 Mass.App.Ct. 902, 903 (1987).
There was ample evidence, viewed in the light most favorable to the Commonwealth, that allowed the jury to find proof of murder beyond a reasonable doubt.
There was evidence that the defendant knew of the victim's imminent arrival at his apartment for a prearranged meeting and that the defendant retrieved the .45 caliber handgun he knew was in the basement to address the lingering dispute between him and the victim regarding their drug trade. Upon the victim's arrival, the defendant allowed the victim into his apartment. The evidence permitted the inference that when the dispute was not resolved to the defendant's satisfaction, he shot the victim. The location and seriousness of the wounds provide the strongest evidence of murder. The first shot could have been to the victim's thigh because it may have caused him to turn in an attempt to flee or protect himself and, therefore, when the defendant fired the next shot, it passed through the victim's back. Apparently the victim was still not disabled, as the blunt force trauma on the victim's head suggested the defendant may have struck him on the head with the gun. The downward trajectory of the chest wound suggests the defendant fired a fatal wound to the victim's chest as he was falling to the ground or already on the ground. Because the gunshot wound to the chest would have caused the victim's almost instantaneous collapse and death, it would have been immediately apparent that no additional shots were necessary.
Murder requires proof of “(1) an unlawful killing and (2) malice.” Commonwealth v. Earle, 458 Mass. 341, 346 (2010). About two years after the defendant's convictions were obtained, the Model Jury Instructions on homicide 20 (1999) were rewritten and the terms “unlawful” and “malice” were replaced with more specific language that has come to define each element. Model Jury Instructions on Homicide 57–63 (2013). Because the Supreme Judicial Court made clear at the outset of the revised instructions that they reflect existing statutory and case law, it is clear that the changes are ones of form not substance. See Model Jury Instructions on Homicide 1 n. 1 (2013).
That the medical examiner could not give a medical opinion on the order in which the shots were fired does not preclude a fact-finder from drawing a reasonable inference based on all the evidence, including the medical evidence, that the shot to the chest would have been almost instantly fatal. See, e.g., Commonwealth v. Fitzpatrick, 463 Mass. 581, 591 (2012) (“Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense”), quoting from Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S. C., 450 Mass. 215 (2007), and 460 Mass. 12 (2011).
This view of the incident is also supported by the evidence that the defendant did not suffer from any injuries after the incident, and by evidence of his consciousness of guilt, suggested by his immediate flight to another State, only turning himself in after finding out that there was a warrant out for his arrest. See Commonwealth v. Carrion, 407 Mass. 263, 277 (1990) (“Flight is perhaps the classic evidence of consciousness of guilt”).
The defendant makes the additional argument that his conviction should be reduced to voluntary manslaughter because the evidence showed that this was a “killing fueled by sudden passion induced by reasonable provocation, sudden combat, or excessive force in self-defense.” We disagree.
Apart from his not having pursued any claim of mitigation at trial, other than excessive force in self-defense (addressed above), the defendant failed to support voluntary manslaughter with the required proof of intentional conduct. Not only did the defendant disclaim an intent to kill the victim, there was no evidence that he did so while under the sway of reasonable provocation. See Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006). Rather, the defendant claimed he acted purely out of fear for his life and that he and the victim were struggling for the weapon when it discharged. The defendant's claim hinges on believing that he accurately assessed the danger and that he properly responded to that danger. When paired with the additional evidence that immediately thereafter the defendant cleaned the apartment and disposed of the body, the evidence does not evince a loss of self-control, but instead reflects a presence of mind that is inconsistent with the emotional state required for reasonable provocation. Absent some evidence that the defendant was so “provoked” that he was incapable of reflection or restraint and that he had not “cooled off” by the time of the killing, he cannot properly avail himself of a defense based on reasonable provocation. Ibid. See Commonwealth v. Sirois, 437 Mass. 845, 854–855 (2002); Commonwealth v. Glover, 459 Mass. 836, 844 (2011); Commonwealth v. Walczak, 463 Mass. 808, 818–822 & n. 12 (2012).
2. Self-defense instruction. The defendant argues for the first time on appeal that the instruction on self-defense was flawed. He claims that the so-called “castle law instruction” (G.L. c. 278, § 8A), which permits an occupant to defend himself without retreating from a person who is an unlawful intruder, was muddled by the judge's inclusion of language explaining the defendant's obligation to retreat if the jury found that the victim was lawfully in the apartment. See Commonwealth v. Peloquin, 437 Mass. 204, 208 (2002) (an occupant of a dwelling is relieved of the duty to retreat before defending himself only when confronted by a person who is unlawfully on the premises).
The judge's instruction on self-defense followed the Model Jury Instructions on Homicide 54–57 (1999) nearly verbatim. “In general, when a judge employs the Model Jury Instructions on Homicide (1999), which have been approved by the Supreme Judicial Court, there is no need to instruct further on the concepts contained therein.” Commonwealth v. Sosa, 79 Mass.App.Ct. 106, 115–116 (2011). This case is no exception. Whether the victim was a lawful occupant or an armed intruder was a live issue at trial and the judge properly instructed the jury as to the effect of either possibility.
3. Ineffective assistance. The defendant argues that his attorney was ineffective for failing to request an accident instruction. Generally speaking, accident is unintentional conduct and is treated, like self-defense, as if it is an affirmative defense. See Commonwealth v. Podkowka, 445 Mass. 692, 699 (2006); Commonwealth v. Figueroa, 56 Mass.App.Ct. 641, 648–650 (2002). “When the issue of accident is ‘fairly raised,’ the judge, at least on request, must instruct the jury that the Commonwealth must disprove accident beyond a reasonable doubt.” Commonwealth v. Podkowka, supra.
Assuming, without concluding, that the evidence raised the possibility of an accident, we review any error to determine whether the lack of a specific instruction on accident created a substantial risk of a miscarriage of justice. See Commonwealth v. Conley, 43 Mass.App.Ct. 385, 396 (1997). Here, the judge did not give a specific instruction on accident but instructed that the Commonwealth had to prove the death was the result of an unlawful killing and that a killing may be excused by “self-defense, defense of another, or in some cases, accident.” She further emphasized at least six times that the Commonwealth bore the burden to prove malice in order to find the defendant guilty of murder in the second degree, and in defining malice, she emphasized at least eight times that malice required proof of intentional conduct. Considering the charge as a whole, we conclude that the judge clearly placed the burden of proving malice beyond a reasonable doubt on the Commonwealth. See Commonwealth v. Jewett, 442 Mass. 356, 370 (2004). See also Commonwealth v. Lowe, 391 Mass. 97, 110–112 (1984), cert. denied, 469 U.S. 840 (1984). Thus, the instructions did not create a substantial risk of a miscarriage of justice. See id. at 112.
Moreover, we doubt that the absence of a specific accident instruction deprived the defendant of an otherwise available ground of defense. In particular, the gunshot wound to the victim's back, and to a lesser extent the gunshot wound to his chest, defy a claim the gun was discharged accidently while they both had their hands on it.
4. Omission of instruction on reasonable provocation. The defendant argues that counsel should have requested instructions on voluntary manslaughter based on reasonable provocation. At the conclusion of the evidence, and before closing argument, the judge asked counsel if self-defense was the only mitigating circumstance. Counsel said he wanted to discuss the matter with his client and would answer the next morning. No request was forthcoming and counsel did not object when such an instruction was omitted from the judge's charge to the jury.
There are at least three reasons why counsel's decision was not manifestly unreasonable. See, e.g., Commonwealth v. Adams, 374 Mass. 722, 728–729 (1978); Commonwealth v. Glover, 459 Mass. at 843–846. First, if the jury credited the defendant's claim of self-defense (overcoming, as the jury is permitted to do, the hurdle posed by his denial of intentional conduct), he would be acquitted, whereas reasonable provocation would only reduce the charge to voluntary manslaughter. Second, arguing that the defendant had been provoked could weaken the force of his claim that he acted purely out of fear for his life. Third, the evidence more strongly supported excessive force in self-defense, given that he adamantly adhered to his explanation that he acted solely out of fear for his life, implicitly denying that he had been provoked. See ibid. In addition, the lack of any injury to the defendant and his immediate attempt to clean up the apartment and dispose of the body are inconsistent with the emotional state required to show reasonable provocation. See id. at 844. See also Commonwealth v. Acevedo, 446 Mass. at 443, quoting from Commonwealth v. Andrade, 442 Mass. 236, 237 (1996) (An “instruction on reasonable provocation is only warranted ‘if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused's temper to cool’ ”).
In addition, because the record indicates that counsel apparently consulted with the defendant on the decision whether to request an instruction on reasonable provocation, we can fairly infer that the decision not to do so was a tactical one.
See Commonwealth v.. Glover, supra at 845.
We note in passing that the jury's general questions on murder in the second degree, voluntary manslaughter, and excessive force in self-defense suggest that they were, in fact, exploring additional mitigating circumstances.
5. Sua sponte instruction. Similarly, there is no merit to the defendant's claim that the judge was required to give an instruction on reasonable provocation sua sponte. The defendant did not place any reliance on this theory of defense at trial, and there was little, if any, evidence that the defendant “was provoked and did not cool off.” Commonwealth v. Acevedo, supra at 442 n. 12. See Commonwealth v. Norris, 462 Mass. 131, 143–144 (2012) (sua sponte instruction on defense of another not required where defendant did not pursue that theory at trial). In these circumstances, an instruction was not required and for the reasons stated above, its omission, even if error, did not create a substantial risk of a miscarriage of justice.
6. Closing argument. Contrary to the defendant's claim on appeal, the evidence and inferences that could reasonably be drawn supported the prosecutor's argument that the defendant was armed with a .45 caliber weapon when the victim entered the apartment. Specifically, there was evidence that the defendant knew the location of the .45 caliber handgun hidden in the basement of his apartment. There was undisputed evidence that all of the bullets, including the one lodged in the victim's chest that caused his death, were fired from the same .45 caliber weapon. Finally, there was evidence that there was a dispute between the victim and the defendant over payment for drugs and that the defendant knew the victim was on his way to the apartment. These facts, taken together, permit the inference, if not compel the conclusion, that the defendant armed himself with the .45 caliber gun before the victim arrived, and used it to kill the victim.
Judgments affirmed.