Com. v. Souza, 92-P-441

• Decision Date: 28 June 1993
• Docket Number: No. 92-P-441,92-P-441
• Citation: 612 N.E.2d 680,34 Mass.App.Ct. 436
• Parties: COMMONWEALTH v. Ronald SOUZA.
• Court: Appeals Court of Massachusetts

Page 680

612 N.E.2d 680

34 Mass.App.Ct. 436

COMMONWEALTH v. Ronald SOUZA.

No. 92-P-441.

Appeals Court of Massachusetts,

Bristol.

Argued March 16, 1993.

Decided May 4, 1993.

Further Appellate Review Denied June 28, 1993.

Dana A. Curhan, Boston, for defendant.

Kevin E. Connelly, Asst. Dist. Atty., for the Com.

FINE, JACOBS and GREENBERG, JJ.

FINE, Judge.

After separate trials, the defendant and Richard J. Viveiros were convicted of second degree murder in the death of Joseph Brum. ¹ On appeal, the defendant claims that the evidence was insufficient to prove that his acts were the proximate cause of Brum's death, that errors in the instructions created a substantial risk of a miscarriage of justice, and that the judge erred in allowing a leather wrist band with metal spikes on it to be displayed to the jury. We affirm the defendant's conviction.

On the basis of the Commonwealth's evidence against the defendant, the jury could have found the following facts. During the afternoon of July 21, 1987, Brum, his two teen-aged sons, a neighbor, the defendant, and Viveiros were drinking beer and wine and socializing on the front porch of 47 Boutwell Street in Fall River. When the discussion turned to the subject of gangs, Viveiros and the defendant became upset and expressed anger towards Brum. Viveiros said to the defendant, "Let's get the fuck out of here," and to Brum, "We'll be back." The defendant shook Brum's hand. Viveiros and the defendant then left the porch and drove away. Brum, very drunk, crossed the street to a parked truck in which he lay down. After a while he attempted to get out of the truck but fell from a step. First his hands, then his face, then his feet, and eventually his whole body hit the ground. He got up, staggered, and reentered the truck. Fifteen or twenty minutes later, the defendant and Viveiros returned to the area in a car. They brought with them a baseball bat, and the defendant wore a black leather wrist band with metal spikes on it. For a short while they visited, and drank beer, in an apartment on the first floor of 47 Boutwell Street. Then they approached Brum, said something to him, and proceeded for the next twenty minutes or so to beat him up. The defendant hit Brum in the face with the spiked wrist band. When Brum fell, they kicked him with their boots and hit him with the bat all over his body, including his stomach. During the beating, either the defendant or Viveiros warned Brum that if he were to "[get] anyone else into it," they would come back and kill him. With Brum lying on the ground covered with blood, the defendant and Viveiros gave a "thumbs up" sign to an observer. One of them told Brum, "You're lucky you're staying there alive," and they drove away. Brum was taken to the hospital and died the next day. Dr. George Lauro performed an autopsy and found that the cause of death was "peritonitis secondary to an infarcted bowel resulting from blunt trauma."

1. Causation. "[P]roximate cause ... 'is a cause, which, in the natural and continuous sequence, produces the death, and without which the death would not have occurred.' California Jury Instructions, Criminal § 8.55 (4th rev. ed. 1979)." Commonwealth v. Rhoades, 379 Mass. 810, 825, 401 N.E.2d 342 (1980). The defendant contends that his motion for a required finding of not guilty of murder ² should have been allowed under the standard set forth in Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979), as, he argues, no rational trier of fact could have found beyond a reasonable doubt that his actions were the proximate cause of Brum's death. We consider the contention even though it is made for the first time on appeal, because if, indeed, there were insufficient evidence to take the case to a jury, it would be a miscarriage of justice to let the verdict stand.

Dr. Lauro's opinion was that a blunt force injury caused Brum's peritonitis which, in turn, caused his death. The blunt force, according to Dr. Lauro, could have been any one of a number of instruments, such as a fist, a heel of a shoe, or a baseball bat, or it could have been the striking of the ground in a fall. The defendant contends that Dr. Lauro's testimony does not support the verdict because, given the evidence that Brum sustained a fall, the testimony was equally consistent with two propositions: that Brum's fatal peritonitis was caused by the fall, for which the defendant was not responsible; and that it was caused by the beating, for which he was responsible. A verdict of guilty, the defendant therefore contends, could only have been based upon pure speculation. See Berry v. Commonwealth, 393 Mass. 793, 796, 473 N.E.2d 1115 (1985); Commonwealth v. Salemme, 395 Mass. 594, 599-601, 481 N.E.2d 471 (1985).

We do not think, however, that a fair appraisal of the evidence would have left a rational fact finder in the realm of speculation. The witness who testified about the fall was clear that Brum first hit the ground with his hands, then his head, then his feet, and then the rest of his body. On the other hand, the testimony about the beating indicated that it was severe and protracted and that Brum received multiple blows to his abdominal area with a baseball bat and shod feet. The jury could reasonably have inferred that the trauma to Brum's abdominal area was substantially greater from the beating than from the fall and that it was the beating, therefore, which caused the peritonitis. While a reasonable juror could have believed that it was possible that the fall was the blunt force that caused the fatal condition, the Commonwealth was not required to "exclude every reasonable hypothesis of innocence." Commonwealth v. Merola, 405 Mass. 529, 533, 542 N.E.2d 249 (1989).

The defendant produced testimony from Dr. Phillip Walton Smith, who treated Brum when he arrived at the hospital. Dr. Smith testified that, in his opinion, Brum died as a result of cardiac arrest, caused by delirium tremens which, in turn, resulted from excessive alcohol consumption. (Brum's blood alcohol level upon entering the hospital was recorded at levels which varied between .42 and .49.) Even had the defendant renewed his motion for a required finding of not guilty at the conclusion of all the evidence, which he did not, Dr. Smith's testimony would not affect our conclusion as to the validity of the verdict. The conflict in the evidence between Dr. Smith's testimony, in which there were weaknesses, ^{3 3} and Dr. Lauro's did not cause the Commonwealth's case to "deteriorate," and it was for the jury to resolve the conflict. See Commonwealth v. Hastings, 22 Mass.App.Ct. 930, 931, 493 N.E.2d 508 (1986).

2. Instructions on malice. The judge directed a verdict as to so much of the indictment as alleged first degree murder. As to second degree murder, the judge charged the jury on all three prongs of malice. On the first two prongs of malice, intent to kill and intent to do grievous bodily harm, the judge instructed the jury that they could consider the defendant's intoxication in determining whether he had the requisite intent. See Commonwealth v. Grey, 399 Mass. 469, 470-471, 505 N.E.2d 171 (1987). As to the third form of malice, which "may be inferred if, in the circumstances known to the defendant, a reasonably prudent person would have known that according to common experience there was a plain and strong likelihood that death would follow the contemplated act," id. at 470 n. 1, 505 N.E.2d 171, the judge told the jury that "voluntary intoxication does not operate to prevent a defendant from forming the general intent as specified in that third form of malice." The defendant did not object to the instruction. According to Commonwealth v. Sama, 411 Mass. 293, 298, 582 N.E.2d 498 (1991), decided after the trial in this case, there was error in the charge. We consider, therefore, whether the error created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Costa, 414 Mass. 618, 627, 609 N.E.2d 465 (1993). We conclude that it did not.

A correct instruction would have informed the jurors that they could consider the defendant's intoxication in determining his knowledge of the relevant circumstances, the only subjective part of the third prong of malice. See Commonwealth v. Blake, 409 Mass. 146, 155, 564 N.E.2d 1006 (1991); Commonwealth v. Sires, 413 Mass. 292, 299, 596 N.E.2d 1018 (1992). In this case, knowledge of the relevant circumstances would have consisted of the defendant's awareness that he and Viveiros were kicking Brum and beating him with the bat and the spiked wrist band. The question is whether a correct instruction on the third prong of malice might have created reasonable doubt in the minds of the jurors that the defendant had knowledge of those circumstances.

There was considerable evidence before the jury that the defendant had been drinking beer and wine and was intoxicated. While on the porch, the entire group socializing there was described by witnesses as "tipsy" and "drunk," and Viveiros and the defendant were described as "wobbly" as they walked away from the porch. When they returned to the area about an hour later, they were described by a witness as "drunk," and before the attack they had yet another beer.

On the other hand, the actions and comments of the defendant and Viveiros throughout the episode strongly indicate awareness of the relevant circumstances. The defendant left the group in the company of Viveiros after an argument with Brum and after Viveiros promised to return. They drove to some location where they changed clothes and obtained the bat and spiked wrist band. They drove back to the area and found Brum in the truck. After they talked to Brum, the defendant joined Viveiros in the beating. In the course of the beating, either the defendant or Viveiros said, "if [Brum] got anyone else into it, ... they were going to come back and kill him." When a neighbor said, "Look, don't you think...