Com. v. Cataldo, 92-P-1320

• Decision Date: 06 December 1994
• Docket Number: No. 92-P-1320,92-P-1320
• Citation: 642 N.E.2d 1056,37 Mass.App.Ct. 957
• Parties: COMMONWEALTH v. Anthony E. CATALDO.
• Court: Appeals Court of Massachusetts

Page 1056

642 N.E.2d 1056

37 Mass.App.Ct. 957

COMMONWEALTH v. Anthony E. CATALDO.

No. 92-P-1320.

Appeals Court of Massachusetts.

Dec. 6, 1994.

Further Appellate Review Granted Jan. 24, 1995.

Anthony M. Cardinale (Nicholas J. Di Mauro with him), for defendant.

John P. Zanini, Asst. Dist. Atty., for Com.

RESCRIPT.

Claiming that the Superior Court judge's jury instructions on self-defense and defense of another were erroneous and that the errors created a substantial risk of a miscarriage of justice, the defendant seeks reversal of his conviction on an indictment charging him with assault by means of a dangerous weapon. We conclude that the defendant is entitled to a new trial and reverse.

1. The evidence. We recite the evidence, viewing it in the light most favorable to the defendant. See Commonwealth v. Harrington, 379 Mass. 446, 450, 399 N.E.2d 475 (1980); Commonwealth v. Epsom, 399 Mass. 254, 257, 503 N.E.2d 954 (1987). During the early morning hours of March 18, 1990, the defendant, while driving his tow truck in the Copley Square area of Boston, met two friends. He agreed to follow and join the two men at a lounge on Tremont Street. His friends double-parked in front of the lounge, and the defendant parked his truck, which had his name written on the door, in a nearby alley. After about fifteen minutes in the lounge, the three men walked a short way down the street to a pizza window. While the defendant waited to buy a piece of pizza, he was pushed by several male patrons who were also standing in line. One of the men tried to grab a gold chain from the defendant's neck. The defendant pushed him away, and a scuffle broke out among eight or nine of the men milling about the window. Someone who knew the defendant called out his name and pulled him away from the others. The defendant became apprehensive and angry that his name, which appeared on his tow truck, had been called out for everyone to hear.

As this scuffle was going on, a bystander ran back into the lounge and spoke to two men whom he knew to be Boston police officers. Detectives Joseph Britt and John Martel, both in plainclothes, had stopped into the lounge after completing their shift at about 1 A.M. The bystander told the detectives that there was a fight outside the bar, and Martel and Britt went outside. At this point, the defendant was a few feet from his friend's car, and his friend, Kevin Hardy was in the driver's seat. Martel, who had drawn his service revolver, stood about seven to twelve feet from the defendant. As Britt went around the rear of the vehicle on the driver's side, Hardy got out of the car and started to walk toward Britt. Britt drew his revolver, pulled Hardy to the rear of the car, pushed him onto the trunk, and pointed his gun at his head.

According to the defendant, it was at this point that he reached beneath his sweatshirt for the handgun in his belt. ¹ When he did so, Britt shot him in the chest and he fell to the ground. The officers ran to retrieve the defendant's gun and yelled that they were police officers. Although Britt and Martel testified that they had identified themselves as police officers from the outset, the defendant stated that everything happened so quickly that he never heard either officer identify himself, that he thought Britt was part of the melee at the pizza window, and that he did not realize they were police officers until after he had been shot.

2. The jury instructions. Erroneously proceeding on the basis of the evidence most favorable to its position, the Commonwealth argues that the defendant was the aggressor and, therefore, not entitled to jury instructions on self-defense and defense of another. As might be expected in circumstances such as those here presented, the testimony of the witnesses sometimes conflicted on different and important points, such as whether the defendant had drawn his gun and was pointing it at the detectives and whether the defendant had to have heard Britt and Martel state that they were police officers. As noted, however, "[a] defendant is entitled to have the jury at his trial instructed on the law relating to self-defense if the evidence, viewed in its light most favorable to him, is sufficient to raise the issue." Commonwealth v. Harrington, 379 Mass. at 450, 399 N.E.2d 475. The defendant's testimony, which was corroborated by some witnesses and contradicted by others, was more than sufficient to put the issues of self-defense and defense of another (Hardy) to the jury. See Commonwealth v. Epsom, 399 Mass. at 257-258, 503...