Com. v. Espada

• Decision Date: 20 February 2008
• Docket Number: SJC-09381.
• Citation: 450 Mass. 687,880 N.E.2d 795
• Parties: COMMONWEALTH v. Gabriel ESPADA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

880 N.E.2d 795

450 Mass. 687

COMMONWEALTH v. Gabriel ESPADA.

SJC-09381.

Supreme Judicial Court of Massachusetts, Hampden.

Argued November 9, 2007.

Decided February 20, 2008.

Richard J. Shea, Boston, for the defendant.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, & CORDY, JJ.

IRELAND, J.

In April, 2003, a Hampden County jury convicted the defendant, Gabriel Espada, of murder in the first degree of Nathaniel Pereira on a theory of deliberate premeditation. He was convicted of assault and battery by means of a dangerous weapon on Darius Shepard, of assault by means of a dangerous weapon on Sharif Laster, and of armed assault with intent to murder Shepard and Laster. He also was found guilty of unlawful possession of a firearm and unlawful possession of a firearm or ammunition without an identification card. The defendant appealed. In September, 2005, the defendant filed a motion for a new trial in this court, which we remanded to the Superior Court, In May, 2006, the trial judge denied the defendant's motion without a hearing. The defendant again appealed. The defendant requests that we reverse his convictions and reverse the denial of the motion for a new trial, arguing that the judge erred in refusing to instruct the jury on self-defense and voluntary manslaughter and that his trial counsel provided ineffective assistance. Because we conclude that the defendant's claims of error are without merit and discern no basis to grant relief under G.L. c. 278, § 33E, we affirm his convictions and the denial of his motion for a new trial.

Background. 1. The Commonwealth's case. We summarize the facts that the jury were warranted in finding, reserving certain details for our discussion of the issues. On November 18, 2001, two brothers, Nathaniel (Nate) and Bernabe (Bernie) Pereira, were celebrating their birthdays. Sharif Laster picked up the brothers and Phillip Langley and drove them to the apartment of another friend, Patrick Bass. Prior to their arrival at Bass's apartment, Laster had telephoned Bass to arrange to purchase twenty dollars' worth of marijuana from the defendant. When the group arrived at Bass's apartment, the defendant was present as was Iraida Rolon, Bass's girl friend. After Nate took the marijuana he told the defendant, "Now we are even." This statement led to an argument over whether the defendant owed Nate money. The argument became so heated that Rolon asked them to "go outside." Everyone but Rolon did so.

Once outside, the argument between Nate and the defendant continued. Laster, Bass, and Langley walked toward Laster's car. The argument between Nate and the defendant escalated; Nate attempted to leave. The defendant took off his watch and made a fist with his hand down. Bernie, who was standing near the defendant, thought that the defendant was going to hit Nate, so Bernie hit the defendant in the back of the head with a liquor bottle. The defendant "backed up and said, `Oh, you guys going to jump me now?'" Bernie and Nate replied, "No, we are leaving." The defendant then stated, "I know where you live." Bernie responded by slashing one of the defendant's tires with a box cutter. Laster drove Bernie, Nate, Langley, and Bass to Laster's house.

The defendant returned, injured and upset, to Bass's apartment. Rolon asked him to leave but instead he used the telephone. During the telephone call, Rolon overheard the defendant tell the person at the other end that he had been beaten for his marijuana, and that he thought that he might be "jumped," and she overheard the defendant "plead" with the person to bring him some "heat." As the defendant was leaving the apartment, Rolon heard him say to himself, "I am going to blast [them]."¹

Meanwhile, another friend, Darius Shepard, joined the group at Laster's house. The group stayed at Laster's house for approximately one and one-half hours. They then drove back to Bass's apartment and parked the car in the parking lot behind the apartment building. At that time, the defendant's car was not there. Over the course of two to three hours, they watched television at Bass's apartment. During their stay, Rolon told them about the conversation she overheard in which the defendant requested "some heat."

Shepard was the first person to leave. He noticed that the defendant's car was parked in the back, almost blocking Laster's car. Immediately, he went back into the house and told everyone that the defendant's car was outside. Nate, Langley, and Bass went out to look around. No one saw the defendant. The group got in the car. As Laster tried "inching his way by" the defendant's car, the defendant appeared from the dumpster area. He approached the car, and hopped and banged on the trunk, yelling, "Where is Nate?" Shepard saw a gun in the defendant's hand and yelled, "He's got a gun." As Laster was trying to drive away two shots were fired. After the first shot Nate began to scream, and Laster sped up in an attempt to get away. The defendant continued to fire, and Shepard was shot in the left ankle. Laster continued driving toward a hospital.

Nate died at the hospital from a gunshot wound through his back to his aorta that caused "massive bleeding." While Shepard was being treated for his gunshot wound, he identified the defendant, who had been brought to the hospital by the police, as the person who had shot at them.

The police found a spent projectile in the trunk of Laster's car and four spent casings from a .38 caliber pistol at the scene. The medical examiner also recovered a spent projectile during Nate's autopsy. The police seized a .38 caliber pistol and magazine from a garage belonging to the defendant's father. A State police ballistics expert, John Schrijn, examined the seized gun and magazine and concluded that the projectiles from the autopsy and the vehicle had been fired from the seized gun.

2. The defendant's case. At trial, the defendant did not deny shooting at Laster's car, killing Nate, and injuring Shepard.² However, he claimed he was acting in self-defense. Evidence pertinent to self-defense is viewed in the light most favorable to the defendant. See Commonwealth v. Pike, 428 Mass. 393, 395, 701 N.E.2d 951 (1998); and cases cited.

The defendant was a good friend of Bass. On the night of the incident, Bass asked him to bring some marijuana to his home. The defendant testified that he believed the debt that sparked the argument with Nate was because of an incident that occurred a week before where Nate, Bernie, and Shepard "jumped" on a "kid" who was trying to purchase marijuana. After the group beat up the "kid," some of his money fell to the ground and the defendant picked it up. The defendant later used the money to buy pizza for the group.

The argument between the defendant and Nate escalated. Nate told the defendant to hit him, but the defendant did not do so. The defendant stated that, during the argument, someone said that if the defendant did anything or tried to do anything, they would "jump" him. The defendant testified that, during the argument, Laster received a telephone call and gave the telephone to Nate. The defendant overheard Nate say something about "getltingi the heat." After Bernie struck the defendant on the head, the defendant thought that the group was going to jump him. He returned to Bass's apartment and telephoned his brother-in-law to ask for a ride, but was told that his brother-in-law was busy. The defendant denied asking for "heat" during this telephone conversation and denied stating that he was going to "blast" anyone. The defendant drove his car down the street, parked it, and walked home. At home, the defendant cleaned up and used his brother-in-law's cellular telephone to contact an acquaintance named "Madness." He purchased a gun from Madness for his own protection.

The defendant took the gun and returned to his car to fix his flat tire. He testified that he could not change the tire because it was on a hill, so he moved it to an alleyway in front of a dumpster.³ As he changed the tire he noticed that Laster's "car was back in the alleyway." The defendant saw Shepard come out and then go back inside. The defendant went to get in his car, but the whole group came outside "cussing" and talking to each other. They walked toward the defendant, and the defendant showed the group the gun at his waist. Once the defendant showed the gun, the group stopped and went to Laster's car. The defendant stated that he went behind the dumpster to avoid the car's lights as it pulled out of its parking spot. As the car pulled away, the defendant ran up to the window and asked to speak to Nate. The tinted window rolled down, and the defendant saw something "like a movement, like a reflection of somebody's hand," or a "flash." He was unsure of what he saw, but thought it could have been "a weapon of some type." After the flash, the defendant pulled his gun and shot at the car.

The car drove off; the defendant drove to his father's house and hid the gun in the garage. At some point the police took the defendant to the hospital so that Shepard could identify him. While the defendant was at the police station he told the police where he had hidden the gun.

Discussion. 1. Jury instructions. a. Self-defense. The defendant claims that the judge erred in refusing to instruct the jury on self-defense. "A defendant is entitled to have the jury 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. 446, 450, 399 N.E.2d 475 (1980). There must be evidence that "permits at least a reasonable doubt that the defendant reasonably and actually believed that he was in `imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force.'" Commonwealth v. Pike, supra at 396, 701 N.E.2d 951, ...