Commonwealth v. Brea

• Decision Date: 06 August 2021
• Docket Number: SJC-12753
• Citation: 488 Mass. 150,171 N.E.3d 1141
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. Charlie BREA.

488 Mass. 150

171 N.E.3d 1141

COMMONWEALTH

v.Charlie BREA.

SJC-12753

Supreme Judicial Court of Massachusetts, Suffolk.

Argued October 5, 2020.

Decided August 6, 2021.

Amy M. Belger, Holliston, for the defendant.

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

Present: Budd, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

LOWY, J.

The defendant, Charlie Brea, was convicted of murder in the first degree on a theory of deliberate premeditation.¹ The jury could have found that, during a scuffle outside a bar, he fired multiple shots, one of which struck and killed the victim, Luis Montanez.

The defendant makes four claims on appeal: (1) that the judge erred in failing to instruct on voluntary manslaughter as the defendant had requested; (2) that the judge erred in allowing a Boston police detective to testify about the contents of a certain record of the United States Customs and Border Protection agency (Customs) that he saw on a computer screen at Logan Airport, showing that the defendant left the country shortly after the shooting; (3) that the judge improperly instructed the jury in response to the defendant's closing argument, in which his attorney argued the absence of evidence of motive; and (4) that the prosecutor in his closing argument improperly asked the jurors to recall an event, unrelated to the case, that occurred during a view of the crime scene. We affirm, and having reviewed the entire record, we decline to grant relief pursuant G. L. c. 278, § 33E.

Background.² The shooting occurred in the early morning hours of October 23, 2010, outside the Breezeway bar on Blue Hill Avenue in the Roxbury section of Boston. The defendant and several of his friends and acquaintances arrived at the bar shortly after 1 A.M. Some of them had also been together at a different bar in the South Boston section of Boston earlier in the night. Among the group was Wendy Perellu, who had been romantically involved with the defendant.³ Also in the group were the defendant's friend Jonathan Aguasvivas and Aguasvivas's younger brother, Waldo Aguasvivas, who was casually acquainted with the defendant.⁴ The defendant, Perellu, and another friend had traveled to the Breezeway from South Boston in the defendant's automobile.

There was some evidence that while the defendant and his group were inside the bar, one of the other patrons directed a homophobic slur at Waldo. There was no physical altercation, and the situation was eventually defused by Jonathan. At some point after that incident, the defendant told Perellu to wait for him and then left the bar.

Some of the following relevant events were captured by security cameras that were mounted outside the Breezeway and on a market located a short distance away on Blue Hill Avenue. Footage from both locations was in evidence. The footage showed that the defendant left the bar at approximately 1:43 A.M. and spoke with the Aguasvivases’ uncle outside for about one minute. He then walked to his car, which was parked near the market, and entered the vehicle. The defendant then started the engine, turned on the headlights, and made some type of movements near the dashboard and center console. Fewer than two minutes later, he turned off the vehicle and the headlights, left the vehicle, and walked back to the bar.

A police search of the defendant's car days after the shooting revealed that the vehicle had a secret compartment ("hide") located behind the dashboard. The hide could be unlocked by turning on the vehicle and the headlights; activating the rear window defroster, the button for which was located on the dashboard; and pressing the control button for the side mirrors on the driver's side door.⁵ The Commonwealth maintained at trial that, when he went to his vehicle, the defendant retrieved a firearm from the hide that he later used to shoot the victim. Because there was evidence that patrons sometimes were frisked when they entered the bar, and because there was also evidence, described infra, that the defendant shot the victim shortly after returning from his vehicle, the jury could infer that the defendant was not armed when he entered the establishment earlier in the night and that he retrieved the weapon from his vehicle after leaving the bar.

The victim and two of his friends arrived at the bar at approximately 1:46 A.M. , a few minutes after the defendant had left and gone to his vehicle but before he returned. They remained outside the bar. A handful of others were outside as well. The defendant returned from his vehicle at 1:47 A.M. and remained outside, too. Within a minute or two, most of the members of his group left the bar and gathered outside. At approximately 1:50 A.M. , an argument occurred and a fistfight broke out.⁶ There was evidence that the fight began after someone "sucker punched" Waldo. The security footage showed both the victim and the defendant entering the fray just moments after the fistfight began; there was no testimony, however, and the footage does not show, that anyone physically struck the defendant at any point either before or after the fight began. Within seconds, someone fired multiple shots, one of which hit the victim in the face and killed him.⁷

The Commonwealth presented two witnesses who described the shooter. Tyrone Brooks, one of the victim's friends, testified that the shots were fired from behind him, and when he turned to look in that direction, he saw a person holding what "looked like a gun." He described the person as a male, shorter than him,⁸ weighing approximately 260 pounds or more, and wearing a gray hooded sweatshirt. He identified the person he believed to be the shooter on the bar's security footage. Two other witnesses who had testified previously -- Perellu and Joseph Monette -- each identified the defendant on the security footage as he entered the bar earlier that night; the jury could see the defendant's heavy-set build and the fact that he was wearing a gray hooded sweatshirt. From this, the jury could conclude that the man described by Brooks (and pointed out by him on the video footage) was the defendant.

The second witness to describe the shooter was Abdullah Galloway, a security employee of the bar who was off duty but present outside the bar that night. Galloway initially stated at trial that he did not see who fired the shots. However, given Galloway's evasiveness in response to the prosecutor's questions, the judge permitted the prosecutor to read from Galloway's grand jury testimony. The judge instructed the jury that they could use that testimony as substantive proof in the case if they believed it. See Commonwealth v. Daye, 393 Mass. 55, 65-75, 469 N.E.2d 483 (1984). See also Commonwealth v. Sineiro, 432 Mass. 735, 741, 740 N.E.2d 602 (2000). Galloway had testified before the grand jury that the shots were fired by "someone in a gray hoodie"; "about five-six, five seven"; and "a lot heavier" than 250 pounds. He also had testified that he was "about two or three feet" from the shooter and had an unobstructed view of him.

Most of those who were near the shooting -- including the defendant, members of his group, and the two friends with whom the victim had arrived -- ran from the scene.⁹ The security footage shows the defendant pulling up the hood on his gray sweatshirt to conceal his face as he fled. He then got into his car and drove away quickly, without waiting for Perellu or the other friend with whom he had arrived. Perellu, who up until that point had remained inside the bar, then left the building and departed in a different vehicle driven by one of the defendant's other friends.

The Commonwealth adduced evidence that the defendant not only fled the scene after the shooting, but also left the country. Perellu, who lived next door to the defendant in the same housing complex in South Boston, testified that she saw him only once or twice in the days afterward. Perellu testified at trial that the defendant had spoken previously about going to the Dominican Republic to visit his father. The judge also allowed the prosecutor to read from Perellu's grand jury testimony, see Daye, 393 Mass. at 75, 469 N.E.2d 483, in which she stated that the defendant had told her he was planning to go to the Dominican Republic in December, "but not so fast like that." The other witnesses who knew the defendant testified at trial that they did not see him at all after the shooting.

In addition, the Commonwealth presented testimony from Boston police Detective Steven Ridge, who had personally observed a record in the Customs computerized database that showed, among other things, that on October 30, 2010, seven days after the shooting, the defendant purchased a one-way ticket to travel to the Dominican Republic the next day, and that he in fact boarded the flights. Although the defendant objected to this particular testimony and challenges it on appeal, as discussed infra, he did not dispute that he had traveled to the Dominican Republic and remained there until he was extradited in May 2017 to face the charges in this case.

The defense at trial was twofold. First, the defendant argued mistaken identification, i.e., that he was not the shooter. Second, and in the alternative, he maintained that he acted in response to reasonable provocation and sudden combat and in defense of Waldo.

Discussion. 1. Request for manslaughter instruction. The defendant contends that the judge erred in failing to instruct the jury on manslaughter based on reasonable provocation, sudden combat, and excessive use of force in defense of another. Because the defendant preserved the issues, we review for prejudicial error. See Commonwealth v. Odgren, 483 Mass. 41, 46, 130 N.E.3d 677 (2019).

"[V]oluntary manslaughter is an intentional killing that is mitigated by extenuating circumstances." Commonwealth v. Haith, 452 Mass. 409, 415, 894 N.E.2d 1122 (2008). The Commonwealth must prove beyond a reasonable doubt that no mitigating circumstances, such as...