Com. v. Carrion

Citation407 Mass. 263,552 N.E.2d 558
Decision Date17 April 1990
CourtUnited States State Supreme Judicial Court of Massachusetts

Header ends here. Jonathan Shapiro, Boston, Joshua Dohan with him for defendant.

Lauren Inker, Asst. Dist. Atty., for Com.


LYNCH, Justice.

A Superior Court jury found the defendant, Fernando D. Carrion, guilty of the murder in the first degree of Reynaldo Santiago, based on extreme atrocity or cruelty. On appeal, the defendant asserts that the judge made five errors in the conduct of the trial: (1) in denying him a jury instruction on voluntary manslaughter; (2) in charging the jury on the defendant's choice to remain silent; (3) in excluding a question on cross-examination of the Commonwealth's chief witness; (4) in allowing in evidence the contents of a police "wanted" flyer; and (5) in his charge on consciousness of guilt. In addition, the defendant asks us to use our discretionary power under G.L. c. 278, § 33E (1988 ed.), to order a new trial or to reduce the verdict to murder in the second degree. We conclude that there was no error, and that the defendant is not entitled to relief under § 33E. We therefore affirm.

The Commonwealth's case relies heavily on the testimony of Maria Perez, the girl friend1 of the victim. According to Perez, on September 8, 1986, she and the victim set off for the basement of a house at 17 Hendry Street in the Dorchester section of Boston, where drug users congregated ("shooting gallery"), to get high on drugs. The house was located across from an empty lot on Downer Court, where Perez lived with her mother. After sitting on the back steps of the house for awhile, the two descended into the basement and injected heroin. At some point, Santiago left Perez in the "shooting gallery," and walked alone to a nearby store at thecorner of Downer Court and Bowdoin Street. Five to ten minutes after Santiago's departure, the defendant "rushed" into the basement, looking for Santiago. He appeared to be angry and frustrated. The defendant left the "shooting gallery" several minutes later, and Perez went outside to sit on the back steps where she waited for Santiago until he returned from the store.

Some time later, the defendant reappeared and both men began at once to argue loudly.2 Santiago threw his soda bottle to the ground by his feet, smashing it, and walked away in the direction of Downer Court. The defendant followed him, and the two kept arguing. Santiago went over a fence onto a vacant lot on Downer Court, and the defendant climbed over after him. Perez remained seated on the back steps of 17 Hendry Street, but she was no longer watching.

Santiago's loud screams brought Perez to her feet, at which point she looked over the fence and saw the defendant stab Santiago twice, as the latter held onto an abandoned car for support. At that time, the defendant looked up, ran toward Perez, climbed over the fence, and dashed back toward Hendry Street, in the direction from which he had first appeared. Perez noticed his clothes and hands were covered with blood. The victim was taken to Boston City Hospital, and by the time Perez arrived at the hospital, Santiago was dead.

A medical examiner testified that the autopsy reports showed that the victim had been stabbed in six different places--twice in the chest, and once each in the head, shoulder, arm, thigh, and back--with a knife that was at least five inches long. Either of the two chest wounds, having penetrated each lung, alone would have been sufficient to cause death. One ofthese wounds, which punctured the victim's left lung, had "separate tracks," indicating the knife had been plunged in, retracted part of the way, and plungedin again. The head wound penetrated not only the scalp but part way into the skull bone as well. The medical examiner testified at length about the severe pain each of these wounds individually would have caused the victim, for the approximately one-half hour that elapsed before he lost consciousness.

There was no witness to any physical contact between Santiago and the defendant prior to the two stab wounds Perez saw the defendant inflict on Santiago. No weapon was found either on the victim's body or during the police search on Downer Court. The police issued an arrest warrant for the defendant on October 6, 1986, and on October 14, 1986, circulated a "wanted" flyer describing the defendant and stating that he was being sought in connection with the murder of Santiago. The defendant was arrested at his home on August 5, 1987. At the police station, he gave the police a false address as well as a false name, and he signed that false name to the booking sheet.

At the time of the defendant's trial, Perez was incarcerated in the Massachusetts Correctional Institution at Framingham (Framingham), for having violated probation on a previous conviction of possession of a hypodermic needle. Perez identified the defendant at his trial, and also described the changes in his appearance from the day she saw him kill her boy friend.

1. The failure to give a jury instruction on voluntary manslaughter. The defendant requested a jury instruction on voluntary manslaughter, which was refused. While the defendant did not object to the judge's failure to give this particular charge after the jury instructions were complete, the judge had explicitly told defense counsel prior to the instructions that he would "save his rights" with regard to the manslaughter question, and so the issue is properly preserved for appellate review. Commonwealth v. Dunton, 397 Mass. 101, 102 n. 2, 489 N.E.2d 1012 (1986).

A manslaughter instruction is required if, on "any view of the evidence," regardless of the credibility, manslaughter may be found. Commonwealth v. Pitts, 403 Mass. 665, 667, 532 N.E.2d 34 (1989).Commonwealth v. Bellamy, 391 Mass. 511, 514, 461 N.E.2d 1215 (1984). Commonwealth v. Vanderpool, 367 Mass. 743, 745-746, 328 N.E.2d 833 (1975). However, the defendant is not entitled to such a charge if there is no evidence which would support a finding of manslaughter. Commonwealth v. Freiberg, 405 Mass. 282, 302, 540 N.E.2d 1289 (1989). Commonwealth v. Bellamy, supra. Commonwealth v. Vanderpool, supra.

Voluntary manslaughter is unlawful homicide arising not from malice, but "from the frailty of human nature," as in a case of "sudden passion induced by reasonable provocation, sudden combat, or excessive force in self-defense." Commonwealth v. Nardone, 406 Mass. 123, 130-131, 546 N.E.2d 359 (1989). For a defendant to be entitled to a charge on voluntary manslaughter, there must be some evidence that could raise a reasonable doubt that the killing occurred in the heat of sudden passion. Commonwealth v. Walden, 380 Mass. 724, 727, 405 N.E.2d 939 (1983). In the absence of evidence of reasonable provocation, sudden combat, or self-defense, "[t]he jury could not be permitted merely to speculate on whether the defendant in the course of [a] struggle might have been roused to the heat of passion." Id. Commonwealth v. Freiberg, supra. Commonwealth v. Pitts, supra 403 Mass. at 668, 532 N.E.2d 34. Commonwealth v. Garabedian, 399 Mass. 304, 315, 503 N.E.2d 1290 (1987). Commonwealth v. Bellamy, supra 391 Mass. at 515, 461 N.E.2d 1215.

In this case, the only evidence of the dispute between the defendant and the victim, prior to the actual stabbing of the victim, is of a loud argument. "Insults or quarrelling alone cannot provide a reasonable provocation." Commonwealth v. Zukoski, 370 Mass. 23, 28, 345 N.E.2d 690 (1976). Commonwealth v. Vanderpool, supra 367 Mass. at 746, 328 N.E.2d 833.There was nothing that could raise a reasonable doubt that "reasonable provocation" or "sudden combat" spurred the defendant to kill the victim in the heat of passion. For cases where no charge was required, see Commonwealth v. Zukoski, supra 370 Mass. at 28-29, 345 N.E.2d 690 (defendant testified that victim threw glass of beer and swore at him; he knocked her to ground and then kicked her repeatedly until she died); Commonwealth v. Vanderpool, supra 367 Mass. at 745 n. 2, 328 N.E.2d 833 (defendant testified that victim called him a liar andtook a swing at him, but being intoxicated, missed); Commonwealth v. Griffin, 19 Mass.App.Ct. 174, 188, 472 N.E.2d 1354 (1985) (defendant testified that victim, while riding a motorcycle on the road alongside car defendant was driving, gestured at defendant in an obscene way, and kicked his car door).

The evidence did not raise a reasonable doubt as to whether the defendant acted in self-defense. Therefore, an instruction on manslaughter based on the use of excessive force in self-defense was not required. A defendant is not entitled to a jury instruction on self-defense unless the evidence warrants at least a reasonable doubt that he had "reasonable ground to believe, and actually did believe that he was in imminent danger of death or serious bodily harm." Commonwealth v. Harrington, 379 Mass. 446, 450, 399 N.E.2d 475 (1980). In general, self-defense is unavailable to the person who initiates the fray. Commonwealth v. Bellamy, supra 391 Mass. at 515, 461 N.E.2d 1215. Commonwealth v. Johnson, 379 Mass. 177, 180-181, 396 N.E.2d 974 (1979). There was evidence that the defendant was angry and looking for the victim. No weapons were ever discovered, and there was testimony that the victim carried no weapon on the day of his death. The evidence at trial indicates that the victim, rather than the defendant, attempted to walk away from the argument at the outset, and was pursued by the defendant over the fence. Also, the stabbing occurred in a vacant lot fronting on a public street. Further, there were no facts or reasonable inferences that would raise a reasonable doubt that the defendant may have been acting defensively, albeit with excessive force.

The defendant also asserts that the judge invaded the province of the jury...

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1 cases
  • Com. v. Carrion
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 17 Abril 1990

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