Com. v. Barros

• Decision Date: 28 July 1997
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Adriano BARROS (and five companion cases 1 ).

Page 849

682 N.E.2d 849

425 Mass. 572

COMMONWEALTH v. Adriano BARROS (and five companion cases ¹).

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Dec. 2, 1996.

Decided July 28, 1997.

Lawrence P. Murray (Henry F. Owens, III, with him), Boston, for Adriano Barros.

Willie J. Davis, Boston, for Aristides Duarte.

Murray A. Kohn, Brighton, for James Villaroel.

Mark D. Zanini, Assistant District Attorney (James J. Larkin, Assistant District Attorney, with him), for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, O'CONNOR and GREANEY, JJ.

O'CONNOR, Justice.

Adriano Barros, Aristides Duarte, James Villaroel and Lamar Johnson were tried together before a jury. The jury convicted them of murder in the first degree and assault and battery by means of a dangerous weapon. They have appealed. Johnson's appeal was severed from those of his codefendants. In the present appeals, the defendants Barros, Duarte, and Villaroel have raised many issues which we discuss below. ² We affirm the convictions. We decline to exercise our extraordinary power under G.L. c. 231, § 33E, to order a new trial or direct the entry of a verdict of a lesser degree of guilt.

We summarize the relevant background evidence as follows, reserving further discussion of evidence as it relates to specific issues. On the night of April 22, 1992, Charleston Sarjeant, with his wife and a friend, Eddy Toomer, entered the Tasty Chicken restaurant in the Dorchester section of Boston and ordered food. While Toomer, Sarjeant, Sarjeant's wife, and a customer named Terrance Hudson waited for their orders, a group of young men that included the defendants gathered on a traffic island in front of the restaurant. Without provocation, the defendant Villaroel threw a beer bottle against the front of the restaurant and shouted, "Let's shut this place down," or words to that effect, and moved toward the restaurant. The group, including the defendants Duarte and Barros, followed.

Villaroel, carrying a large portable radio, sometimes described as a "boom box," entered the restaurant ahead of the others and struck Sarjeant on the head with the radio, using enough force to draw blood. Within seconds, ten to twelve men encircled Sarjeant and began beating, punching, and kicking him. Villaroel pulled out a knife and began stabbing Sarjeant. During the repeated stabbing the other attackers continued to punch, kick, and stomp Sarjeant about his head and face until he eventually lost consciousness. Police and medical personnel arrived promptly but were unable to save Sarjeant's life.

An autopsy revealed seven or more areas of blunt trauma to the head and face, nine stab wounds to the neck, back and thighs, and one cutting wound. The medical examiner who conducted the autopsy concluded that Sarjeant had died as a result of multiple stab wounds with blunt head trauma.

At the trial, several witnesses identified Villaroel, Duarte, and Barros as having participated in the attack on Sarjeant.

We now address the numerous issues on appeal.

I. We begin with Villaroel's contention that "[t]his court should reverse [his] conviction because the trial court refused to instruct the jury, specifically, that it may consider evidence of intoxication in deciding whether [he] reasonably acted in self-defense because (1) there was evidence of his intoxication, (2) in the past, he was beaten and robbed, stabbed three times, and shot once, and (3) he suspected that [the victim] was a former assailant reaching for a weapon." Villaroel testified that he had stabbed Sarjeant. He also testified, however, that, on the day of the murder, beginning shortly after he awoke and continuing through that day and evening, he consumed a large amount of beer and liquor, smoked marihuana, ingested cocaine and the prescription drug Percoset, and as a result was intoxicated at the time of the killing at the Tasty Chicken restaurant later that night. He testified that, his perceptions being distorted, he believed that Sarjeant had attacked and stabbed him several years previously and, thinking that Sarjeant was reaching for a weapon when he moved his hand to his side, Villaroel struck Sarjeant first with the "boom box" and then, after Villaroel was knocked down and punched, he drew his knife and stabbed Sarjeant.

An instruction on self-defense is required in a homicide case if the evidence most favorable to the defendant warrants a conclusion 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. Harris, 376 Mass. 201, 208 (1978), and cases cited." Commonwealth v. Harrington, 379 Mass. 446, 450, 399 N.E.2d 475 (1980).

The judge instructed the jury on the law of self-defense, he said, "out of an abundance of caution." Villaroel argues that the judge erred in his instruction because he failed to inform the jury that they could consider Villaroel's intoxication in evaluating whether he reasonably believed that he was in imminent danger of serious bodily injury or death. There was no error. The evidence was insufficient to warrant an instruction on self-defense. Therefore, we do not reach the question whether the instruction that was given was complete.

Whether, due to his intoxication, Villaroel actually believed that he was in imminent danger of being killed or seriously injured by Sarjeant and responded by attacking Sarjeant, is of no consequence for two reasons, the first of which is that the evidence did not warrant a finding that such a belief would have been objectively reasonable. The defendant's belief cannot be deemed reasonable on the ground that, due to intoxication, he misapprehended the situation. In Commonwealth v. Albert, 391 Mass. 853, 466 N.E.2d 78 (1984), the judge instructed the jury in relevant part: "If the assailant is threatening him [the defendant] or doing some act endangering his personal safety, and if he reasonably thought that his personal safety or life was in peril, he is to be judged by the situation in which he is placed. And if he acted as a person of ordinary prudence and firmness of mind, even though he may have misjudged the situation, and if he reasonably believed that his life or person was in danger, then the law says he may protect himself by adequate and appropriate means" (emphasis added). Id. at 861 n. 3, 466 N.E.2d 78. This court, in Albert, noted that the defendant's "first criticism [was] that it was error for the judge to employ an 'objective' standard in his self-defense instructions with respect to the defendant's apprehension of danger and his reaction to the threat." Id. at 861, 466 N.E.2d 78. The court then responded, "The judge's charge was correct; its language closely tracked the self-defense standard we enunciated in Commonwealth v. Harrington, 379 Mass. 446, 450 (1980). As we noted in a related context regarding the distinction between murder and manslaughter, '[s]ince malice does not require any actual or subjective intent to kill or to inflict grievous bodily harm, there is no basis in our law for the defendant's suggestion that provocation should be viewed subjectively.' Commonwealth v. Amaral, 389 Mass. 184, 190 (1983). See Commonwealth v. Starling, 382 Mass. 423, 428 (1981). The same holds true for the self-defense test, which requires that the defendant 'had reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm' and that he 'used no more force than was reasonably necessary in all the circumstances of the case.' Harrington, supra at 450 " (emphasis in original). (Footnote omitted.) Id. See also Commonwealth v. Kendrick, 351 Mass. 203, 211, 218 N.E.2d 408 (1966). A determination as to whether a defendant's belief concerning his exposure to danger was reasonable may not take into account his intoxication.

The second reason that it is of no consequence that Villaroel may have believed that he was in imminent danger of being killed or seriously injured by Sarjeant and responded by attacking Sarjeant is that the evidence did not warrant a finding that Villaroel availed himself of all proper means to avoid physical combat before resorting to the use of deadly force. See Commonwealth v. Naylor, 407 Mass. 333, 334-335, 553 N.E.2d 542 (1990). Commonwealth v. Harrington, supra at 450, 399 N.E.2d 475. Here, there was no evidence that Villaroel could not have retreated on seeing Sarjeant make a move as if to reach for a weapon, as Villaroel testified he did.

II. Villaroel also argues that "[t]his court should reverse [his] conviction because intoxication was a central theory of [his] defense and the trial court refused to re-instruct the jury to consider the effect of [his] intoxication on whether the government proved malice even after re-instructing on malice, at the jury's request, after hours of deliberation, thereby confusing the jury and violating the defendant's common law and constitutional due process rights." After the jury had deliberated for several hours, they requested the judge to "[r]edefine malice aforethought." Villaroel asked the judge also to reinstruct the jury on the relevance of intoxication to malice. The jury did not request, and the judge did not give, such a reinstruction. It is true that evidence of intoxication may be considered in determining whether the Commonwealth has proved that the defendant acted with malice. Commonwealth v. Delaney, 418 Mass. 658, 665-666, 639 N.E.2d 710 (1994). The judge properly instructed the jury in that regard in his main instruction. Villaroel does not suggest otherwise. The judge was not required to repeat that instruction in...