Commonwealth v. Arias

• Decision Date: 30 October 2013
• Docket Number: No. 11–P–2170.,11–P–2170.
• Citation: 84 Mass.App.Ct. 454,997 N.E.2d 1200
• Parties: COMMONWEALTH v. Randy ARIAS.
• Court: Appeals Court of Massachusetts

84 Mass.App.Ct. 454

997 N.E.2d 1200

COMMONWEALTH

v.Randy ARIAS.

No. 11–P–2170.

Appeals Court of Massachusetts, Essex.

Argued March 21, 2013.

Decided Oct. 30, 2013.

Theodore F. Riordan, Quincy, for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Present: KATZMANN, MEADE, & SULLIVAN, JJ.

MEADE, J.

After a jury trial, the defendant was convicted of murder in the second degree in the shooting death of Julio Zuniga (Zuniga), in violation of G.L. c. 265, § 1, and assault and battery by means of a dangerousweapon causing serious bodily injury to Roberto Francisco Sanchez Rios (Sanchez Rios), in violation of G.L. c. 265, § 15A( c ).¹ The principal issue at trial was the identity of the shooter. On appeal, the defendant claims the judge failed to properly instruct the jury on defense of another. We conclude the defendant's claim was not preserved for appeal. The judge's defense of another instruction, when considered as a whole against the backdrop of the trial, would have been interpreted by a reasonable juror to have adequately conveyed the nature of the defense and its components. Even if the instruction were infirm, given the nature of the defense was that the defendant did not shoot anyone and defense of another was not a live issue that was contested at trial, there was no substantial risk of a miscarriage of justice. We affirm.

1. Background. a. The club. At approximately 11:00 p.m. on October 11, 2008, Zuniga went to a nightclub in Lawrence to watch a televised soccer game. He was accompanied by his brothers, Francisco “Paco” Zuniga (Paco) and Altero Zuniga (Altero),² his cousin Sanchez Rios, and two friends, Oscar Bolanos and Jesus Estrella. Zuniga's group arrived at the club courtesy of Paco's Ford Explorer sport utility vehicle (SUV).

At 12:15 a.m. on October 12, the defendant, Frederich Frias, and Edward Rosario entered the same club. The defendant's group arrived in a light brown Acura sedan driven by, and registered to, the defendant. The defendant's group spent some time in the downstairs area of the club, then proceeded upstairs; Zuniga's group was upstairs watching soccer.

When the club closed at 1:00 a.m., Zuniga's group walked to a lot across the street from the club where Paco had parked his SUV. When they got to the SUV, Zuniga told the others he wanted something to eat, and they walked back across the street to a food cart. Altero and Bolanos went back into the club. After buying some sandwiches, Zuniga and the remainder of his group walked back across the street to where the SUV was parked. When the defendant's group left the club, they also crossed the street to an alley where the defendant had parked his Acura. The area was not well lit.

b. The shootings. The Commonwealth's three key witnesses provided varying accounts of the shootings. Sanchez Rios testified that after they bought their sandwiches and were returning to the SUV, he heard Frias ³ exchange words with Zuniga. Zuniga did not understand what had been said and asked, “Well, what is it that you want?” Frias then started a fistfight with Zuniga; the defendant approached Zuniga from behind and hit him in the back. Sanchez Rios ran over to assist Zuniga and pulled the defendant away and began to beat him. Sanchez Rios continued to beat the defendant, who was then on the ground. At some point, Rosario said he did not want to have any problems, and Sanchez Rios suggested that the defendant's group leave.

At this point, either Rosario or the defendant pushed Sanchez Rios onto his side. As Sanchez Rios sat up, he heard two or three shots, looked at Zuniga, and heard more shots. During the second volley of shots, Sanchez Rios could see that the defendant was the shooter, as his face was illuminated by the flashes of the discharging gun.⁴ The shooter wore a dark-colored or black long-sleeved shirt and was standing next to the open door of the Acura. When the shooting ended, Sanchez Rios saw the Acura drive away, and he fell to the ground because he had been shot.⁵

Paco testified that when he went to get the SUV in the lot across the street, he could see that it was blocked in by other cars. Paco was told that a fight had erupted, and he saw Zuniga fighting with three or four people near the defendant's Acura. Zuniga was fighting with the defendant, Sanchez Rios, and Frias, and Rosario was hitting Estrella. Paco hit Rosario in defense of Estrella, and Rosario withdrew and walked toward the Acura. When Paco turned to help Zuniga and Sanchez Rios, Rosario resumed his beating of Estrella. Paco then chased Rosario in the direction of the Acura, and Rosario said he was done fighting. Paco heard some shots and turned around and saw a “person” with a gun. Paco heard Zuniga say something like “[shoot] me if you have balls,” and then the gunman fired more shots. Zuniga grabbed his chest in pain and Paco ran around the Acura towards the shooter; Rosario ran away. Paco heard more shots and saw the shooter get into the Acura and drive away at a high rate of speed. He did not see anyone else in the Acura.⁶

Frias testified that he was on his cellular telephone yelling at his girlfriend when the defendant's group was near the Acura. Frias believed that Zuniga's group mistakenly thought Frias was addressing them, which resulted in Zuniga's group confronting the defendant's group. A fight began. Frias claimed he was stomped and kicked while he was on the ground, and the defendant and Rosario abandoned him there. As Frias saw Rosario running away, he heard two shots, and then a third. Frias looked at the defendant standing next to the Acura, and Frias saw the flash of the gun as more shots were fired. Frias then saw the defendant, alone, drive away quickly; Frias ran down an alley and met up with Rosario a few blocks away.

c. The defendant threatens Frias. Later that morning at 9:30 a.m., the defendant spoke to Frias on the telephone and admitted to Frias “that [the defendant] had killed somebody and he did it for” Frias. Frias denied that the defendant had done it for Frias because they were all merely fighting and the defendant unnecessarily escalated the matter by using a gun. The defendant warned Frias that if he said “anything about this,” the defendant would “send Cesar after” him. Frias knew Cesar, and Frias told the police that he was afraid of the defendant.

2. The defense. The main premise of the defense was misidentification. ⁷ In support, Sugeily Perez (Sugeily) testified that she went to the club that night with her husband, her cousin Vanessa Perez (Vanessa), and her brother-in-law in Vanessa's car. They left the club around 12:50 a.m., and walked toward the food cart while Sugeily took Vanessa's car keys to move her car. While crossing the street, Sugeily saw two men standing near the rear bumper of the defendant's car, which was parked in the alley.⁸ Frias, who stood on the driver's side, wore a shirt with a “skull design” (also described as a “gas mask”) on the front, and the other man, on the passenger side, wore a black sweater.

Sugeily believed the men were looking for a fight, but they told her she would not get shot because she was female. Sugeily quickly got into Vanessa's car and moved it to the street in front of the food cart. Sugeily saw Zuniga's group walking from the cart and saw the man in the black sweater yell at them, and a fight began with the defendant's group. She saw Frias on the ground getting kicked by Zuniga's group, and the man in the black sweater quickly entered and exited the car, followed by smoke and the sound of “firecrackers” coming from the passenger's side. Frias and the man in black got into the car and drove away. Sugeily told the police that Zuniga had not been in the fight at all and was minding his own business when he got shot.

The defense contended that the defendant wore a red sweater or shirt that night and the shooter wore a black sweater or black jacket. This implied that Rosario, not the defendant, was the other man Sugeily saw with Frias behind the car.

3. The instructions. After explaining the definition of proof beyond a reasonable doubt and in conjunction with the elements of murder in the first degree, the judge stated that to be murder, a killing must be unlawful. Further explaining, he stated:

“An unlawful killing ... is a killing done without excuse. Now not all killings are unlawful. A killing maybe excused, for example, in the case of self-defense or defense of another. And the evidence in this case does raise the issue of whether this killing was ... excuse[d] as a result of self-defense or the defense of another.” ⁹

The judge instructed the jury that it was the Commonwealth's burden to “prove beyond a reasonable doubt that the killing was not the result of the defendant's acts of self-defense or defense of another.” ¹⁰

After instructing on murder and before discussing manslaughter, the judge reiterated that the jury must find an unlawful killing in order to convict the defendant of either degree of murder, and he returned to the concepts of self-defense and defense of another. He stated:

“If someone is acting in a legitimate exercise of self-defense, then they are not guilty of murder. They're not guilty of second degree murder. They're not guilty of manslaughter. They're not guilty of anything, because you are entitled, in the appropriate circumstances, to use deadly force against someone, or a legitimate use of self-defense or defense of another.”

The judge also reminded the jury that it was the Commonwealth's burden to prove beyond a reasonable doubt that the defendant did not act in self-defense or defense of another.

Following this, the judge instructed on self-defense, the use of deadly force, reasonable fear and apprehension of death or serious bodily injury, and again, the Commonwealth's burden of proof as it related to these terms. In conjunction with self-defense, the judge again instructed the jury on defense of...