Opinion
13-P-1745
04-15-2015
COMMONWEALTH v. SANTOS PORTILLO.
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
An indictment was returned on October 7, 2011, charging the defendant, Santos Portillo, with (1) murder in the first degree in violation of G. L. c. 265, § 1, and (2) carrying a firearm without a license in violation of G. L. c. 269, § 10(a). After a jury trial, the defendant was found not guilty of murder in the first degree, but was found guilty of the lesser included offense of murder in the second degree. He was also found guilty of the firearm charge. On appeal, the defendant challenges two aspects of the trial judge's instructions to the jury: (1) the intoxication instruction, and (2) the absence of a manslaughter instruction. We affirm.
Background. On the evening of July 15, 2011, and into the early morning hours of July 16, 2011, the defendant was drinking alcohol and socializing with friends. The defendant and his cohorts started their evening in Chelsea, but made several stops elsewhere -- to play soccer, to eat, and to drink -- before making their final trip back to Chelsea, where the defendant and his friend ventured out on their own to find more beer. During their walk, they came across the victim and his companions drinking on the porch of 104 Central Avenue. The victim and his companions were unarmed. Though the interactions between the two groups started innocuously enough, the situation quickly escalated and resulted in the defendant pulling out a handgun and shooting the victim in the head at close range. The victim's gunshot wounds resulted in his death.
Discussion. On appeal, the defendant claims that he is entitled to a new trial because the trial judge failed to instruct the jury that if the defendant did not have the requisite intent to commit murder in the first or second degree because of intoxication, they could find the defendant guilty of the general intent crime of manslaughter. At trial, the defendant did not seek a manslaughter instruction. What the defendant did request and did receive was a jury instruction on intoxication. After instructing the jury as requested that they could consider any credible evidence of intoxication in determining whether the Commonwealth met its burden of proving the defendant's intent or knowledge regarding murder in the first or second degree, the trial judge went on to say:
The judge instructed the jury as follows: "[Y]ou may consider any credible evidence of the defendant's consumption of alcohol in determining whether the defendant deliberately premeditated the killing of the deceased, that is . . . whether the defendant intended to kill or cause grievous bodily harm to the deceased or was aware that his conduct created a plain and strong likelihood that death would result."
"So, jurors, the government is entitled to a verdict on the highest crime which it has proven beyond a reasonable doubt. If it has failed in its proof of first degree murder, you would then consider whether it's proven second degree murder. If it has failed in its proof of second degree murder, your verdict would be not guilty on the murder indictment."There was no objection to this instruction or to the instruction on intoxication, so we review the defendant's claim only to determine whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Sanchez, 70 Mass. App. Ct. 699, 700-701 (2007).
Massachusetts case law has long held that "a defendant's mental condition and any effects of the consumption of drugs, including alcohol, may be considered whenever the Commonwealth has the burden of proving the defendant's intent or the defendant's knowledge." Commonwealth v. Sires, 413 Mass. 292, 299 (1992). However, a defendant is not entitled to an intoxication instruction when it is not supported by the evidence. See id. at 299-300.
The evidence at trial that the defendant had consumed "some quantity of beer prior to the killing" did not support a reasonable inference that the defendant was so intoxicated at the time of the incident that he was incapable of forming the necessary intent or possessing the requisite knowledge for the crimes charged. Commonwealth v. James, 424 Mass. 770, 789 (1997). See Commonwealth v. Herbert, 421 Mass. 307, 316 (1995) (Defendant not entitled to intoxication instruction because "[n]o testimony or other evidence suggested that the defendant appeared impaired to any degree by the consumption of alcohol").
Thus, the defendant was not prejudiced by the judge's intoxication instruction. In fact, the defendant received two windfalls: (1) the benefit of the unwarranted intoxication instruction itself, and (2) the incorrect inference that if the jury found him to be intoxicated at the time of the killing, they should also find him not guilty. Therefore, there can be no substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 298 (2002).
The defendant is correct in maintaining that intoxication is not a defense to all crimes, as a finding that a defendant was intoxicated at the time of an offense only exonerates him from specific intent and knowledge crimes, not crimes such as manslaughter, which require only general intent. Commonwealth v. Fano, 400 Mass. 296, 305 n.14 (1987). However, as we have explained, the evidence does not support the inference that the defendant was so intoxicated at the time of the killing as to negate the necessary intent. As such, the defendant was not entitled to an involuntary manslaughter instruction. Compare Commonwealth v. Braley, 449 Mass. 316, 332 (2007) ("Absent some evidence that the defendant's knowledge was impaired, intentionally discharging a firearm in the direction of another person creates a plain and strong likelihood of death," thus no involuntary manslaughter instruction required).
Judgments affirmed.
By the Court (Cypher, Kafker & Green, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 15, 2015.