Com. v. Fontes

• Decision Date: 12 February 1986
• Citation: 396 Mass. 733,488 N.E.2d 760
• Parties: COMMONWEALTH v. William J. FONTES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 760

488 N.E.2d 760

396 Mass. 733

COMMONWEALTH v. William J. FONTES.

Supreme Judicial Court of Massachusetts Bristol.

Argued Nov. 6, 1985.

Decided Feb. 12, 1986.

Robert L. Sheketoff, Boston, for defendant.

Patricia O. Ellis, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

WILKINS, Justice.

By an unpublished order, the Appeals Court affirmed the defendant's conviction of the murder in the second degree of John N. Beauvais-Warr (victim) in Fairhaven in March, 1982. Commonwealth v. Fontes, 19 Mass.App.Ct. 1108, 475 N.E.2d 438 (1985). We granted the defendant's application for further appellate review. We did so principally to consider whether we should adopt a new rule that evidence of a victim's specific acts of violence, known to the defendant and occurring not long before a killing, is admissible to prove one element of self-defense, that at the time of the killing the defendant reasonably believed "he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force." Commonwealth v. Harrington, 379 Mass. 446, 450, 399 N.E.2d 475 (1980). See Commonwealth v. Albert, 391 Mass. 853, 861, 466 N.E.2d 78 (1984). The Appeals Court concluded that this issue was not preserved for appellate review and did not address it. We conclude that, in the proper circumstances, evidence of a defendant's knowledge of specific instances of a victim's prior acts of violence is admissible. Even if the issue was preserved on appeal, however, exclusion of such evidence in this case was not reversible error. We therefore affirm the conviction.

The jury could have found the following facts. The defendant was living with the former wife of the victim, who had remarried. Animosity and disagreements arose between the two households, some of which concerned the custody and upbringing of the children of the victim and his former wife. In the days immediately before the killing, several altercations occurred between the defendant and the victim. On the day of the killing, the defendant, accompanied in a motor vehicle by the victim's former wife and her (and the victim's) children, followed for a short distance a truck driven by the victim. Turning off along a different route, the defendant maneuvered his vehicle so as to confront the truck and block it, face to face, on a street in Fairhaven. The victim had a tear gas pistol which his wife had recently given him for protection. The defendant had a shotgun. The defendant left his vehicle and approached the cab of the truck holding an iron bar. When the victim displayed his gun, the defendant felt threatened and returned to his vehicle for his shotgun. He went back to the truck, pointed the gun at the victim, fired it, and killed him. Several disinterested persons witnessed the shooting. The defendant dropped the gun and said he did not know it was loaded.

The defendant argues that the trial judge improperly excluded relevant evidence tending to show that, in his confrontation with the victim, the defendant reasonably feared for his safety and, therefore, that he acted in self-defense. In this Commonwealth, where the evidence could raise a reasonable doubt as to whether the defendant acted in self-defense in killing the victim, evidence of the victim's character as "a powerful, dangerous, quarrelsome or violent person, if known to the defendant, may be admitted" as tending to show the defendant's reasonable apprehension for his safety. Commonwealth v. Rubin, 318 Mass. 587, 588, 63 N.E.2d 344 (1945). See Commonwealth v. Dilone, 385 Mass. 281, 285, 431 N.E.2d 576 (1982), and cases cited. A defendant may present evidence of the victim's reputation as a violent or quarrelsome person and of his knowledge of that reputation by his own testimony, by the testimony of others, or both. Commonwealth v. Edmonds, 365 Mass. 496, 502, 313 N.E.2d 429 (1974). Evidence of the victim's threats of violence against the defendant, even if unknown by a defendant asserting self-defense, is admissible as tending to show that the victim was attempting to carry out his threat and that the defendant was in danger. Commonwealth v. Rubin, supra at 588-589, 63 N.E.2d 344. It has been our rule, however, that evidence of the victim's specific acts of violence against others, even if known to the defendant at the time of the killing, is inadmissible to prove either the victim's general reputation for violence or the defendant's concern for his safety. See Commonwealth v. Connolly, 356 Mass. 617, 626, 255 N.E.2d 191, cert. denied, 400 U.S. 843, 91 S.Ct. 87, 93, 27 L.Ed.2d 79 (1970); Commonwealth v. Lacasse, 1 Mass.App.Ct. 590, 595, 304 N.E.2d 438 (1973), S.C., 365 Mass. 265, 311 N.E.2d 47 (1974). Cf. Commonwealth v. Roberts, 378 Mass. 116, 129, 389 N.E.2d 989 (1979) (specific instances of conduct inadmissible to prove either propensity or general reputation for violence).

The defendant makes a reasonable argument that, where evidence in a homicide case could raise a reasonable doubt that a defendant acted in defense of himself, the defendant should be allowed to prove that at the time of the killing he knew of specific violent acts recently committed by the victim. We join the weight of authority in this country in concluding, as a matter of common law principle, that a defendant in a homicide case may introduce evidence of recent, specific instances of the victim's violent conduct, known to the defendant at the time of the homicide, to support his assertion that he acted justifiably in reasonable apprehension of bodily harm. See Commonwealth v. Stewart, 483 Pa. 176, 182, 394 A.2d 968 (1978); State v. Tribble, 428 A.2d 1079, 1083 (R.I.1981). ¹ The incidents must not be remote (a discretionary matter for the trial judge) and other competent evidence must raise the question whether the defendant may have acted justifiably in his own defense. ²

The admission of evidence of specific acts of violence known to the defendant is not without its potential disadvantages. The trial could be extended unreasonably by consideration of collateral points. Negative information about the victim may divert the jury from focusing on their basic task by causing them either to consider the victim's character and worth or to draw the impermissible inference that the victim acted in conformity with his prior behavior. Indeed, the fact of the victim's former violent conduct may have no warranted bearing on the defendant's state of mind at the time of the homicide. See Maggitt v. Wyrick, 533 F.2d 383, 386 n. 5 (8th Cir.), cert. denied, 429 U.S. 898 (1976); People v. Miller, 39 N.Y.2d 543, 550-551, 384 N.Y.S.2d 741, 349 N.E.2d 841 (1976); State v. Tribble, 428 A.2d 1079, 1084 (R.I.1981); McAllister v. State, 74 Wis.2d 246, 251, 246 N.W.2d 511 (1976). On the other hand, as all the opinions just cited recognize, the defendant's state of mind and the reasonableness of his apprehension for his safety can be significant and difficult issues for the jury. Knowledge that the victim recently had engaged in specific acts of violence is likely to have more of an effect on a defendant's state of mind than is knowledge of the victim's general reputation for violence. A jury assessing the reasonableness of the defendant's reaction to the events leading to the homicide should in fairness have that information. See People v. Burress, 183 Colo. 146, 152-153, 515 P.2d 460 (1973); People v. Miller, supra 39 N.Y.2d at 551-552, 384 N.Y.S.2d 741, 349 N.E.2d 841; State v. Tribble, supra at 1086. Trial judges can control undue investigation of collateral matters, keeping in mind that the central issue is not what the victim actually did in specific instances, but rather what was in the defendant's mind when he confronted the victim. See People v. Miller, supra 39 N.Y.2d at 552-553, 384 N.Y.S.2d 741, 349 N.E.2d 841; State v. Tribble, supra at 1085.

Although we accept the defendant's contention that, given a proper foundation, evidence of a victim's recent, specific acts of violence known to the defendant is normally admissible, the exclusion of any such evidence in this case was not reversible error. We summarize the defendant's testimony bearing on the victim's conduct that tended to substantiate the defendant's asserted concern for his own safety. On the Sunday evening before the homicide, he heard the victim's voice under the second-floor window of the house in which he lived, and he saw the victim and two men "staging" a fight. Later, after midnight, the defendant became frightened...