Opinion
10-P-1880
01-26-2015
COMMONWEALTH v. JOSE RAPOSO.
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
Following a jury trial held in Superior Court, the defendant was convicted of murder in the second degree. The defendant subsequently filed a motion for a new trial, which the trial judge denied after holding an evidentiary hearing. In this consolidated appeal, we affirm.
The defendant had been charged with murder in the first degree and was convicted of murder in the second degree as a lesser included offense.
The defendant also filed a supplemental motion for a new trial, which was denied. The defendant appealed from the order denying that motion. To the extent that there is overlap between the motion for new trial and the supplemental motion, we have disposed of the arguments on the merits. Any additional arguments based on the denial of that motion have been waived through the defendant's failure to press them. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
Sufficiency. The defendant has consistently admitted that he killed the victim, Jonathan Bor, with a knife, but claimed that he did this in self-defense. He now argues that his murder conviction cannot stand, because there was insufficient evidence to disprove his claim of self-defense beyond a reasonable doubt. In assessing that argument, we read the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
The defendant at various times had been romantically involved with Christy Veigas, with whom he had two children. At the time of the stabbing, Veigas was dating Bor. Just before midnight on June 10, 2005, the defendant heard a smashing noise outside his residence on Tinkham Street in New Bedford. He and his friend, Leon Housewright, went outside to find Bor holding a baseball bat standing next to the defendant's damaged car. After at least angry words were exchanged, Bor eventually left on foot and turned the corner onto Brook Street. The defendant followed Bor onto Brook Street, where he confronted him and stabbed him nine times with a folding knife. Bor died from these wounds.
According to the defendant (in an account he gave to the police), he stabbed Bor to protect himself only after Bor knocked him down with the bat and continued to hit him while he was prostrate. To be sure, there was robust evidence substantiating the defendant's contentions that Bor had swung the bat at him and that he was hit with it at least once. However, there was conflicting testimony regarding when the stabbing occurred in relation to any hitting with the bat. Jorge Andrade, the Commonwealth's key eyewitness to the altercation between the two men once they both made it to Brook Street, testified that at that point, the defendant was the aggressor. According to Andrade, in response to Houseright's imploring the defendant to leave ("Let's go. Leave him alone. Let's go. Get out of here."), the defendant told Housewright, "No, he's going to get it, no." When Bor started swinging the bat at the defendant, the defendant stayed "on the move . . . kind of intent to approach [Bor]." During a "split second" when Bor stopped swinging the bat, the defendant grabbed him around the waist with one arm and stabbed him repeatedly with the other.
Indeed, the prosecutor effectively conceded as much during his summation, stating: "The bat swings, he got hit with the bat."
Andrade did not actually see a knife in the defendant's hand and thought that the defendant's thrusts at Bor were punches. There was overwhelming evidence that this was where the defendant stabbed Bor to death, not the least of it the "blood spatter trail" that was found there.
Based on Andrade's testimony, which was corroborated by other evidence, there was an ample basis for the jury to conclude that the Commonwealth had proven beyond a reasonable doubt that the defendant did not act in self-defense. Even if we assumed arguendo that Bor had hit the defendant with the bat when the men were still in the defendant's driveway (a finding that the evidence does not compel), the defendant easily could have avoided the deadly confrontation simply by letting Bor walk away. See Commonwealth v. Pasteur, 66 Mass. App. Ct. 812, 820 (2006). Instead of disengaging in that manner, the defendant followed Bor onto Brook Street, initiated a confrontation there with the stated intent of having Bor "get it," and seized the opportunity to stab Bor to death. The jury were well entitled to reject the claim of self-defense.
The defendant also argues that there was insufficient evidence to prove the absence of mitigating circumstances -- such as reasonable provocation -- that, if present, would have negated the element of malice. He therefore argues that the murder conviction cannot stand and that, at most, he could be convicted of the lesser included offense of voluntary manslaughter. See Commonwealth v. Colon, 449 Mass. 207, 220 (2007), quoting from Commonwealth v. Andrade, 422 Mass. 236, 237 (1996), ("A voluntary manslaughter instruction based on provocation is appropriate '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 arguing that there were mitigating circumstances, the defendant highlights that it was largely uncontested that the confrontation arose just after Bor had smashed his car, and that Bor was armed with a bat and at some point hit the defendant with it. However, whether such circumstances would have caused a reasonable person in the defendant's position "to lose self-control in the heat of passion" and whether there was "sufficient time" for the defendant's "temper to cool" were fact questions for the jury to consider. Especially where the stabbing occurred after the defendant had followed the victim around the corner onto the next street and in the face of Houseright's urging the defendant to disengage, we cannot conclude that the jury were required to find the presence of sufficient mitigating circumstances to negate the element of malice. See Commonwealth v. McAfee, 430 Mass. 483, 495-496 (1999).
There was also potentially the added emotional overlay created by the fact that Bor was now dating the mother of his children, although there was no direct proof that the defendant in fact was aware of this.
Answer to the jury's question. After closing arguments, the judge instructed the jury on voluntary manslaughter, and the defendant claims no error in that instruction. The judge provided the jury a transcript of his instructions. During their deliberations, the jury requested clarification regarding the judge's specific instruction that "the use of a dangerous weapon in self-defense, or in the heat of passion, upon provocation or sudden combat, would not give rise to an inference of malice." In a colloquy with the attorneys, the judge indicated his intention to respond to the inquiry by pointing them to a later portion of the instructions in which the potential for mitigating circumstances was discussed in greater detail. Defense counsel signaled his agreement with this plan, stating "just direct them to the pages, that's the best we could do." The judge followed this course of action, and no objection was lodged. Nevertheless, the defendant now claims error in the judge's response, apparently faulting the judge for directing the jury to the later discussion without specifically reminding "the jury that there can be absolutely no showing of malice if a dangerous weapon is used in self-defense, heat of passion, or upon provocation or sudden combat." The defendant has not shown how the judge's referring the jury to the most detailed discussion of mitigating circumstances in the transcript, in response to a request for clarification of those mitigating circumstances, amounted to error, much less a substantial risk of a miscarriage of justice.
Ineffective assistance. In his closing argument, defense counsel argued that the jury should acquit his client because he acted in self-defense. He did not focus on the lesser-included charge of voluntary manslaughter; instead, he relied on the judge's instructing the jury on that point and on the verdict form that expressly listed voluntary manslaughter as one of the options they could select.
In his motion for a new trial, the defendant argued that his trial counsel simply "forgot" to argue for voluntary manslaughter and that this amounted to ineffective assistance. Trial counsel supported that claim in testimony he gave at the evidentiary hearing on the motion. The motion judge, who was also the trial judge, rejected this testimony as not credible, characterizing counsel's claim of forgetting "as an instance of loyalty to the client and zealous advocacy overriding the reality of the well designed and executed closing argument actually delivered." Even putting aside that "[t]he judge is the 'final arbiter on matters of credibility,'" Commonwealth v. Scott, 467 Mass. 336, 344 (2014), quoting from Commonwealth v. Schand, 420 Mass. 783, 787 (1995), the prominent role that manslaughter played in the attorney-judge colloquies throughout the trial lends inherent implausibility to trial counsel's claim that he simply forgot to argue manslaughter. All signs pointed to trial counsel's having made a strategic choice to focus on self-defense in his closing argument, while leaving it to the judge to put the manslaughter option before the jury. The cases have long recognized that this can be a reasonable strategy. See, e.g., Colon, 449 Mass. at 219-220 (recognizing that it can be a reasonable defense strategy to focus on one theory in the closing statement with the judge instructing the jury on other theories). On this record, we cannot say this choice was manifestly unreasonable. In sum, we discern no error in the judge's rejecting the defendant's ineffective assistance claim and denying the motion for new trial.
For example, during the charge conference, the judge aptly referred to "the question of voluntary manslaughter" as "what one might view as the core of this case."
The defendant also argued that a new trial was warranted on the grounds that one of his attorneys -- who played some role in the trial but who had not even filed an appearance -- was barred from the courtroom during the jury charge. The judge found that the attorney in fact had not been barred, rejecting the relevant testimony again on credibility grounds. In addition, no objection to any alleged barring was lodged at trial, and the defendant has not argued, much less shown, how he was harmed by the lawyer's absence (given that even now he claims no error in the jury instructions the judge provided while the lawyer was not present).
Judgment affirmed.
Orders denying postjudgment relief affirmed.
By the Court (Rubin, Milkey & Carhart, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: January 26, 2015.