Com. v. Santos

• Decision Date: 15 September 2009
• Docket Number: SJC-0994
• Citation: Com. v. Santos, 912 N.E.2d 985, 454 Mass. 770 (Mass. 2009)
• Parties: COMMONWEALTH v. Daniel SANTOS.
• Court: Supreme Judicial Court of Massachusetts

912 N.E.2d 985

454 Mass. 770

COMMONWEALTH v.Daniel SANTOS.

SJC-0994

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 8, 2009.

Decided September 15, 2009.

Jeffrey L. Baler for the defendant.

Marguerite T. Grant, Assistant District Attorney(Kevin L. Ryle, Assistant District Attorney, with her) for the Commonwealth.

Present: IRELAND, SPINA, COWIN, BOTSFORD, & GANTS, JJ.

COWIN, J.

A jury in the Superior Court convicted the defendant of murder in the first degree on the theory of deliberate premeditation.The defendant, appealing from the conviction and from the denial of his motion for a new trial, asserts that the jury instructions on voluntary manslaughter were erroneous; that admission of testimony of the medical examiner (who was not the medical examiner who performed the autopsy on the victim) violated the defendant's right of confrontation; and that it was error to deny his motion for a new trial, where, at a minimum, the motion judge¹ should have authorized funds for a ballistics expert.²We conclude that the trial judge's instructions on manslaughter with respect to the use of excessive force in self-defense were erroneous and that, although not objected to at trial, the error created a substantial likelihood of a miscarriage of justice.Accordingly, we reverse the conviction.³

1.Background.There was no dispute that the defendant, angered by sexual advances the victim had made to the defendant's girl friend, confronted the victim in the victim's apartment and killed him.The victim's naked body was discovered by the Lowell police on the evening of October 18, 2002, "slumped" in the bathtub, with the water running from the faucet.It did not appear to the police that there had been a struggle in the bathroom.The room was small, approximately six feet two inches by five feet eight inches, and the tub consumed about half that space; the victim and defendant weighed over 200 pounds each; and most of the items on the bathroom shelves were standing upright when the police observed the scene.

Discharged cartridge casings were found on the bathroom floor, on the bathroom shelf, and in the toilet bowl.A nine-millimeter spent projectile was located under the victim in the tub and a second bullet was found in his body during the autopsy.A State police ballistician opined that three shots were fired in the bathroom, all from the same weapon, and that the third projectile was washed down the open tub drain in the running water.

The shower curtain had three bullet holes in it, two of which were made by the same bullet passing through a fold in the curtain.A State police chemist believed that, because these holes contained copper and lead but no gunpowder residue, they were made by a gun fired from at least three to four feet away.Bullets had struck but not penetrated the vinyl in the shower "surround" in two places; one was fifty-eight inches from the bottom of the tub and the other was twenty inches.

The Commonwealth contended that the defendant came to the apartment and shot the defenseless victim three times while the victim was in his bathtub.The defense theory was that the killing occurred in self-defense.The defendant's girl friend testified⁴ that, when the defendant approached the victim, the victim "grabbed" a gun from a cupboard above the bathroom sink, the two men grappled for the weapon, and while they were fighting over it, the victim "got shot," with the defendant left holding the gun.

In his own statement to the police, repeated at trial by a police officer, the defendant stated that, when the victim reached for a gun on the shelf, he(the defendant) pushed the victim into the tub, grabbed the gun and shot the victim."If I didn't he would have killed me."

2. Discussion. a. Erroneous jury instruction.The defendant contends that error in the judge's instructions on excessive force in self-defense requires reversal.Trial counsel did not object to the instructions on the grounds the defendant now asserts.We therefore determine whether there was error and, if so, whether that error created a substantial likelihood of a miscarriage of justice.SeeCommonwealth v. Carlino,429 Mass. 692, 695-696, 710 N.E.2d 967(1999).

Before a defendant is entitled to an instruction on self-defense with a dangerous weapon likely to cause serious injury or death, there must be evidence that he had a reasonable apprehension of great bodily harm or death and a reasonable belief that no other means would suffice to prevent such harm.That is, the proper exercise of self-defense means that a person in the defendant's circumstances would reasonably believe that he was about to be attacked and that he was in immediate danger of being killed or seriously injured, and that there was no other way to avoid the attack.A person using a dangerous weapon (or deadly force) in self-defense must also have actually believed that he was in imminent danger of serious harm or death.A person may not use force in self-defense until he has availed himself of all proper means to avoid physical combat, and must use no more force than reasonably necessary in all the circumstances.SeeCommonwealth v. Harrington,379 Mass. 446, 450, 399 N.E.2d 475(1980).The defendant is entitled to an instruction on self-defense with a dangerous weapon if the evidence, from any source, would warrant a finding in his favor on that issue.Id.The testimony from the defendant's girl friend that the victim grabbed a gun and that the defendant struggled with the victim for the gun during which time the gun went off, together with the defendant's statement to the police that he believed the victim would kill him, was sufficient to require an instruction on self-defense with a dangerous weapon.SeeCommonwealth v. Kendrick,351 Mass. 203, 211, 218 N.E.2d 408(1966).

The Commonwealth argues that, once the defendant pushed the victim into the tub and disarmed him, the naked victim "no longer presented a threat to anyone,"Commonwealth v. Medina,430 Mass. 800, 811, 723 N.E.2d 986(2000), and that self-defense could not explain why the defendant shot the victim three times.The Commonwealth's version of events ignores the girl friend's testimony.⁵For purposes of determining whether the evidence warrants an instruction on self-defense with a dangerous weapon, we do not balance the testimony of the witnesses for each side, nor do we consider the credibility of the evidence.Commonwealth v. Vanderpool,367 Mass. 743, 746, 328 N.E.2d 833(1975).The evidence most favorable to the defendant is that the gun went off during a struggle, thereby entitling the defendant to a self-defense instruction.

An instruction on the use of excessive force was also appropriate."Ordinarily the question how far a party may properly go in self defen[s]e is a question for the jury, not to be judged of very nicely, but with due regard to the infirmity of human impulses and passions."Commonwealth v. Kendrick, supra,quotingMonize v. Begaso,190 Mass. 87, 89, 76 N.E. 460(1906).We proceed to consider whether the judge's instructions on the use of excessive force in self-defense were correct.

After explaining the right of self-defense, the judge stated:

"[E]ven if a person is entitled to use force in self-defense, he may not use excessive force in defending himself.A person may use only such force in self-defense as appears reasonably necessary to prevent the initiation, a continuation, or the recurrence of an attack.The law does not permit retaliation, and if a person's conduct is not privileged when greater force or harsher means are used than reasonably appear to be necessary, then that person is not entitled to a defense of self-defense."

This passage effectively informed the jury that, if a defendant otherwise entitled to defend himself uses excessive force, he loses the defense of self-defense altogether.The correct rule is that a defendant who uses excessive force in self-defense is entitled to a verdict of manslaughter.Here, the instruction communicated the opposite, specifically, that a finding of excessive force eliminated any consideration of self-defense, and that the jury were free to return a verdict of murder if otherwise satisfied that a murder had occurred.Thus, we cannot discern from the verdict whether the jury returned a verdict of murder because they rejected the defendant's assertion of self-defense altogether, or because they had been led to believe that excessive force in self-defense permitted a murder finding.SeeCommonwealth v. Kendrick, supra.

The dissent states that the court has taken this instruction "out of context" and failed to recognize that this instruction "defined the excuse or justification of self-defense ... , which it did correctly, and did not define the mitigating factor of excessive use of force in self-defense."See454 Mass. at 780, 912 N.E.2d at 994.The concept that the judge conveyed to the jury was that excessive force negates self-defense altogether, a proposition that is incorrect.This error could have influenced the outcome of the deliberations, particularly in conjunction with the judge's later equation of excessive force with murder.Seeinfra.

Citing Commonwealth v. Glacken,451 Mass. 163, 167, 883 N.E.2d 1228(2008)andCommonwealth v. Little,431 Mass. 782, 787, 730 N.E.2d 304(2000), the dissent states that, in the event that the Commonwealth proves that the defendant used excessive force, "then the defense of self-defense fails, but the mitigating factor of use of excessive force in self-defense survives, and the jury would be warranted only to return a verdict of voluntary manslaughter, not of murder."454 Mass. at 781, 912 N.E.2d at 995.

The Glacken and Little decisions say nothing about the defense of self-defense "failing" in these circumstances, and such a concept defies logic.The jury cannot reach the question of excessive force in self-defense unless they decide that the...