Com. v. Peppicelli, 06-P-931.

• Citation: 70 Mass. App. Ct. 87,872 N.E.2d 1142
• Decision Date: 06 September 2007
• Docket Number: No. 06-P-931.,06-P-931.
• Parties: COMMONWEALTH v. David PEPPICELLI (and a companion case<SMALL><SUP>1</SUP></SMALL>).
• Court: Appeals Court of Massachusetts

872 N.E.2d 1142

70 Mass. App. Ct. 87

COMMONWEALTH v. David PEPPICELLI (and a companion case¹).

No. 06-P-931.

Appeals Court of Massachusetts, Suffolk.

Argued May 15, 2007.

Decided September 6, 2007.

Lisa J. Steele, Boston, for David Peppicelli.

Steven J. Brooks for Paul Peppicelli.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.

Matthew H. Bower, of Virginia, & Karen L. MacNutt, for National Rifle Association of America, amicus curiae, submitted a brief.

Present: COWIN, BROWN, & MEADE, JJ.

MEADE, J.

The defendants were each indicted for murder in the first degree of David Stivaletta (David S.) in violation of G.L. c. 265, § 1, two counts of armed assault with intent to murder in violation of G.L. c. 265, § 18(b), and two counts of assault and battery by means of a dangerous weapon in violation of G.L. c. 265, § 15A. After a joint trial, David Peppicelli (David P.) was convicted of voluntary manslaughter, and Paul Peppicelli (Paul P.) was convicted of one count of assault and battery by means of a dangerous weapon (a cane). On appeal from the judgments and the denial of their new trial motion, the defendants claim that the trial judge improperly removed a deliberating juror and failed properly to instruct the jury regarding the removal, abused his discretion by excluding the defendants' expert witness, and failed retroactively to apply the common law rule of evidence announced in Commonwealth v. Adjutant, 443 Mass. 649, 824 N.E.2d 1 (2005). We affirm.

Background. 1. The crimes. Based on testimony at trial, the jury were entitled to find the following.² On September 2, 1999, while Timothy Martin was driving in Kenmore Square in Boston, his car was struck from behind by a car driven by Anna Aliano, causing minor damage to both cars. Martin did not know Aliano by name, but he knew that she and her boyfriend, Joseph Peppicelli (Joseph P.), the defendants' brother, patronized the same gym to which he belonged. An argument ensued as to who was at fault for the accident, which culminated in Martin threatening to kill Aliano and her boyfriend.³

On the morning of September 4, 1999, a store owner in the North End section of Boston told Martin that he had seen "four big guys," one of whom was using a cane, outside Martin's North Street apartment building, looking up at the windows and checking the door bells. Believing that the traffic incident had escalated, Martin called his friend Arthur Stivaletta (Arthur S.), who in turn gathered together David S.; David S.'s son, Scott Stivaletta (Scott S.); and their friend Christopher Luciano, and drove to meet Martin at his apartment.

Martin, Luciano, and the three Stivalettas (collectively, the Stivaletta group) walked from North Street to Michelangelo Street, where they believed the defendants lived. Michelangelo Street is a small dead-end street off of Charter Street in the North End. Martin was armed with a "sap stick"⁴ and an unlicensed .38 caliber revolver. No one else in the group was armed. Upon reaching what he thought was the Peppicelli home, Martin announced himself in the event that anyone was looking for him. Receiving no response, the Stivaletta group walked back to the corner of Charter Street.

Nearing the corner, the Stivaletta group came upon David P., Paul P., and a third man. Paul P. approached the group and asked for Martin to identify himself. Paul P. said words to the effect of, "So you're the guy that threatened my brother," and began hitting Martin in the head with his cane. A fistfight ensued. While fighting, Martin heard someone say, "What do you want, some of this?" He looked in the direction of the voice and saw a man waving a gun. When his attention was refocused on his fistfight, he heard a gunshot. David P. had shot David S. in the stomach at close range. As David S. fell, he told his son to run. Scott S. and Luciano fled the scene. Arthur S., engaged in a separate altercation with the defendants' knife-wielding companion, eventually fled as well.

While this was occurring, Martin ducked behind some cars parked on Charter Street and took out his gun. When Paul P. saw Martin's drawn gun he said, "Oh, do you want to play like that?" Paul P. then drew his own gun and started firing at Martin. David P. fired at Martin as well. Several bullets hit the cars in the area where Martin was hiding, and one bullet grazed the back of Martin's head. Bleeding from his head, Martin too fled the scene.

When the police and emergency medical personnel arrived, they found David S. lying in the street. He was conscious but confused and unable to say more than a few garbled phrases. There were no weapons on or near him. He was taken to the hospital, where he died soon after from the single gunshot wound to his abdomen.

The police found the defendants and a third man, Walter Belmonte, standing nearby with their hands raised. The police recovered from the scene two Glock .40 caliber semiautomatic pistols, four magazines that fit the Glocks, and eighteen spent .40 caliber shell casings. The defendants were the licensed owners of the Glocks.⁵ Seven shots had been fired by Paul P.'s gun, and eleven by David P.'s gun. The only other firearm recovered by the police was Martin's .38 caliber revolver, but they found no evidence that it or any unrecovered gun had been fired at the scene.

2. The defense. From the defense witnesses, the following emerged: David P was armed that day and he carried a gun as a matter of routine; he was unaware of the traffic incident involving Martin and Aliano. David P. and his brother Paul P., who recently had knee surgery and used a cane, were walking to their home in the North End when they saw Martin yelling, "Are you fucking looking for me? I'm fucking Timmy Martin, are you looking for me?" Paul P. said, "Who's Timmy Martin?"

David P. then saw the Stivaletta group, and what appeared to be a gun in Martin's right hand. From David P.'s perspective, the Stivaletta group was "rushing at us all at one time," but he was nonetheless focused on Martin because he saw that Martin had a gun in his hand. When Martin started to raise the gun, David P. yelled "Paul, gun," in order to warn his brother. Paul P. slapped Martin's hand, which held the gun, and began swinging the cane at him. David P. then saw "a hand come up from the back" of the group and point what appeared to be another gun, which fired a shot. He thought the second gunman was Scott S. David P. then turned to the right and saw David S. standing directly in front of him with a silver revolver in his hand. David P. reacted by pulling his gun and shooting David S. once in the abdomen.

After being shot, David S. walked a short distance and appeared to hand something to Scott S.,⁶ who then ran away with Luciano. David P. approached David S. with his gun in a "safe position" and demanded to know where David S.'s gun was; David S. reportedly replied that he no longer had it. The defendants yelled for someone to call 911. Within a few moments, David P. saw Martin behind the parked cars with a gun. Martin fired a shot at Paul P., and both defendants returned fire toward Martin before Martin fled. Upon hearing sirens, the defendants unloaded their guns and placed them on a nearby table, raised their hands in the air, and waited for the police to arrive.⁷

3. The removal of the deliberating juror.⁸ On a Monday, the trial judge dismissed a deliberating juror one week after deliberations had begun. On the previous Friday, the jury had reported reaching verdicts on four of the indictments, but they were deadlocked on the remaining six counts. The judge delivered a Tuey-Rodriquez instruction, see Commonwealth v. Tuey, 62 Mass. 1, 8 Cush. 1, 2-3 (1851); Commonwealth v. Rodriquez, 364 Mass. 87, 101-102, 300 N.E.2d 192 (1973), and deliberations resumed. No further progress was made by the end of the day, and the jury were sent home for the weekend.

Over the weekend, the juror in question was shopping at a Home Depot store in the Boston area. While he stood in a check-out line, the juror initiated a conversation with another patron. The patron, who was a stranger to the juror, was Kevin Todd who worked as a police officer for the Department of Public Health. The juror told Todd that it was "good to be out" and that he had been serving as a juror on a murder trial for the past six weeks. The juror mentioned the Peppicellis and asked Todd if he knew the Stivalettas. Todd said yes because he had read about the case in newspaper accounts. The juror then said, "As far as I'm concerned they're going to walk. I didn't see a shred of evidence that would convict either one of them, the brothers. I considered it self-defense." Todd responded, "Well, yeah, they're all pieces of crap anyway." The juror added that the Stivalettas were looking for trouble, and that based on toxicology reports, "they must have been snorting [cocaine] all night."

The conversation lasted about three minutes; the juror did most of the talking. Todd later notified the Boston police department about the encounter, and the matter was brought to the attention of the trial judge. After conducting an evidentiary hearing in which he heard testimony from both Todd and the juror, and over the defendants' objections, the trial judge excused the juror from further service. The judge opined that the juror's testimony had not been "candid."⁹

The judge stated that he dismissed the juror because he had violated the judge's "repeated and emphatic" instructions not to discuss the case with anyone. The judge found the violation to be "egregious" and to have exposed the juror to extraneous information concerning the trial's participants that he should not have heard. The defendants asked for a two-hour recess to permit them to research the relevant case law for juror removal, but the judge denied the request.

Before announcing the juror's dismissal to the remaining members of the jury, the judge asked defense counsel if ...