Com. v. Toon

• Decision Date: 22 August 2002
• Docket Number: No. 00-P-1053.,00-P-1053.
• Citation: 773 N.E.2d 993,55 Mass. App. Ct. 642
• Parties: COMMONWEALTH v. Troy A. TOON.
• Court: Appeals Court of Massachusetts

773 N.E.2d 993

55 Mass. App. Ct. 642

COMMONWEALTH v. Troy A. TOON.

No. 00-P-1053.

Appeals Court of Massachusetts, Dukes.

Argued April 8, 2002.

Decided August 22, 2002.

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Ruth Greenberg, Swampscott, for the defendant.

Julia K. Holler, Assistant District Attorney, for the Commonwealth.

Present: RAPOZA, MASON, & GRASSO, JJ.

GRASSO, J.

In the early morning of Saturday, July 11, 1998, the defendant Troy A. Toon stabbed Gary Moreis on Warwick Avenue in the Oak Bluffs section of Martha's Vineyard. Moreis bled to death. A jury found the defendant guilty upon indictments charging murder in the second degree and assault and battery by means of a dangerous weapon, a knife.¹ On appeal, the defendant contends that (1) erroneous instructions on self-defense and the use of excessive force in self-defense prevented the jury from returning a verdict of voluntary manslaughter, and (2) a requested, but erroneous, instruction on inferences shifted the burden of proof. He also maintains that the trial judge erred in denying his motion for a new trial, which contended that coaching of a witness by a court room spectator may have influenced the jury.

We conclude that the defendant was not entitled to a self-defense instruction at all and, therefore, was not entitled to an instruction on the use of excessive force in self-defense. We also conclude that the judge did not err in instructing the jury on inferences and did not abuse his discretion in denying the motion for a new trial. Accordingly, we affirm the conviction.

1. Background. At trial, there was no dispute that, in the course of a street fight, the defendant had stabbed Moreis, who was unarmed. The issue was whether Moreis's death was a justified exercise of self-defense, murder, or a mitigated killing — voluntary manslaughter. The judge instructed the jury on second degree murder, self-defense, and voluntary manslaughter based upon the mitigating factors of excessive force in self-defense, sudden transport of passion or heat of blood upon a reasonable provocation (sometimes referred to as "heat of passion"), and transport of passion or heat of blood upon sudden combat.² The defendant does not challenge the correctness of the judge's instructions on reasonable provocation based upon heat of passion or sudden combat.

The Commonwealth did not challenge, nor did the trial judge dwell upon, whether the evidence adequately raised self-defense. Faced with subtle and complex issues best resolved by meticulous combing of the record, trial judges will understandably err on the side of caution in determining that self-defense has been raised sufficiently to warrant an instruction. We are not so constrained on appeal. Whether an allegedly erroneous instruction on self-defense (and excessive force in self-defense) is prejudicial (or creates a substantial risk of a miscarriage of justice) necessarily involves examining first whether self-defense was raised sufficiently. If not, the defendant received more than he was entitled to. See Commonwealth v. Curtis, 417 Mass. 619, 632, 632 N.E.2d 821 (1994); Commonwealth v. Torres, 420 Mass. 479, 492-493, 651 N.E.2d 360 (1995); Commonwealth v. Doucette, 430 Mass. 461, 470, 720 N.E.2d 806 (1999); Commonwealth v. Taylor, 32 Mass.App.Ct. 570, 578-579, 591 N.E.2d 1108 (1992).

2. Raising self-defense. Before the defendant is entitled to an instruction on the right to use deadly force in self-defense, see Commonwealth v. Rodriguez, 370 Mass. 684, 687-688, 352 N.E.2d 203 (1976), the evidence must raise a reasonable doubt as to the defendant's right to use such force.³ As stated in Commonwealth v. Harrington, 379 Mass. 446, 450, 399 N.E.2d 475 (1980):

"A defendant is entitled to have the jury at his trial instructed on the law relating to self-defense if the evidence, viewed in the light most favorable to him, is sufficient to raise the issue. Commonwealth v. Monico, 373 Mass. 298, 299, 366 N.E.2d 1241 (1977). There must be evidence warranting at least a reasonable doubt that the defendant: (1) had reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force, (2) had availed himself of all proper means to avoid physical combat before resorting to the use of deadly force, and (3) used no more force than was reasonably necessary in all the circumstances of the case. Commonwealth v. Harris, 376 Mass. 201, 208, 380 N.E.2d 642 (1978), and cases cited."⁴

Harrington, inquires whether, viewed in the light most favorable to the defendant, the evidence, together with the reasonable inferences, raises a reasonable doubt as to each of the predicates for the use of deadly force in self-defense.⁵ See Commonwealth v. Haddock, 46 Mass.App. Ct. 246, 249, 704 N.E.2d 537 (1999) ("meeting the threshold burden merely provides a permissible basis for an inference that the defense in question applies" and a jury instruction is warranted). "In determining whether sufficient evidence of self-defense exists, all reasonable inferences should be resolved in favor of the defendant, and no matter how incredible his testimony, that testimony must be treated as true." Commonwealth v. Pike, 428 Mass. 393, 395, 701 N.E.2d 951 (1998).

3. The witnesses called by the Commonwealth. The Commonwealth presented testimony from all the percipient witnesses to the altercation. Through cross-examination, the defense sought to convey that the defendant had stabbed Moreis after Moreis had pinned the defendant against a van and was choking him, thereby suggesting that (1) the defendant must have believed he was in imminent danger of death or grievous bodily harm from which he could save himself only by using deadly force, and (2) he could not have retreated at the time of the stabbing. The focus was on when and where the stabbing had occurred and at what point the defendant had threatened to cut Moreis with a knife. Against this backdrop, we have examined in careful detail the evidence bearing on self-defense.⁶

With the victim was his cousin, Evelyn Larkin. With the defendant were his brother, Matthews, and two female companions, Maria Gomes and Megan Jennings. As might be expected, Larkin presented an account more favorable to Moreis. Matthews, Jennings, and Gomes presented accounts more favorable to the defendant. From their testimony emerged uncontroverted facts, as well as diametrically different views of what transpired.

Minor inconsistencies aside, the testimony established that at about 10:45 P.M. on Friday, July 10, Moreis, who was thirty-six years old and lived on Martha's Vineyard, had a chance encounter with his cousin Larkin. They socialized for about two hours at the Atlantic Connection, a local bar. There, Larkin observed Moreis consume one drink.⁷

The defendant, who was twenty-four, had come to Martha's Vineyard to visit his father and his brother, Ducas Matthews. Prior to the fatal altercation, the defendant, Matthews, and Gomes had been together all evening, first at a private residence where Gomes had consumed a considerable amount of alcohol. At about 11:30 P.M. they proceeded to the Lamp Post, another local bar. Because, at nineteen, Matthews was underage, he could not accompany the defendant and Gomes inside the Lamp Post. He remained outside, where he encountered Jennings. As the bars began to close, each group headed off.

Larkin set out to drive Moreis to a campground where he lived with his girlfriend, Andrea Hayden. En route, Moreis asked Larkin to stop briefly at Warwick Avenue, where he owned a garage. Coincidentally, the defendant, Matthews, Jennings, and Gomes were headed toward Warwick Avenue to locate a man named Robert Correia, some marijuana, and a party.

At this point, the specifics diverge, with the testimony of Jennings, Matthews, and Gomes differing starkly from that of Larkin.⁸ According to the defendant's companions, Moreis had encountered the defendant, Matthews, Gomes, and Jennings around 1:00 A.M. on Warwick Avenue. Moreis approached the group and yelled epithets, directed particularly toward the defendant, asking what the defendant was doing on Moreis's street. Moreis, who was five feet seven inches tall, 190 pounds, and well built, was acting "crazy." We examine more closely the testimony of Jennings, Matthews and Gomes.

Jennings's testimony. According to Jennings, the confrontation began when Moreis approached and, amidst a barrage of profanities, called the defendant a "pretty boy." The defendant responded that he wasn't looking for trouble, but for Rob (Correia). Meanwhile, Matthews sought to defuse the situation. Ignoring Matthews's attempts at diplomacy, Moreis continued to yell and called the defendant a "pretty boy" and told the defendant that he would "whip [his] ass." According to Jennings, the defendant said, "If you want to fight we fight, but I am not going to back off because you are an older man.... Knock it off, or I'll doink [stab] you." Jennings did not see a knife in the defendant's hand as he said this. Moreis told the defendant to go ahead and "doink" him "if that's going to make you a bigger man." Jennings was unequivocal (as were Matthews and Gonsalves) that Moreis struck the first blow.

Jennings testified that Moreis grabbed the defendant by the shirt and pushed him back against the van, but that the defendant was able to push Moreis off him. The defendant told Moreis to back off him, but Moreis did not and continued to call the defendant a "punk" and a "pretty boy," and told the defendant to leave the area. Jennings stated that when Moreis stepped back, she saw blood on Moreis's shirt.

Jennings (and all the witnesses) testified that Moreis continued to fight with the defendant even after he had been stabbed. Moreis ripped off his shirt, grabbed the defendant by the throat, and threw him against a van. He pummeled ...