Commonwealth v. Castillo

• Citation: 153 N.E.3d 1210,485 Mass. 852
• Decision Date: 13 February 2020
• Docket Number: SJC-12316
• Parties: COMMONWEALTH v. Peter CASTILLO.
• Court: United States State Supreme Judicial Court of Massachusetts

485 Mass. 852

153 N.E.3d 1210

COMMONWEALTH

v.Peter CASTILLO.

SJC-12316

Supreme Judicial Court of Massachusetts, Suffolk..

February 13, 2020.

October 6, 2020.

Robert L. Sheketoff, Boston, for the defendant.

Ian MacLean, Assistant District Attorney, for the Commonwealth.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.¹

GANTS, C.J.

Early in the morning on April 28, 2012, a senseless exchange of insults triggered a fight between two different groups of friends, culminating when the defendant, Peter Castillo, shot the victim, Stephen Perez, once in the back, killing him. A Superior Court jury convicted the defendant of murder in the first degree on the theory of extreme atrocity or cruelty, and the trial judge imposed the mandatory sentence of life without the possibility of parole.²

The defendant claims that the judge erred in declining to instruct the jury on defense of another, in denying his motion for a required finding of not guilty on the issue of extreme atrocity or cruelty, and in instructing the jury regarding all of the extreme atrocity or cruelty factors set forth in Commonwealth v. Cunneen, 389 Mass. 216, 227, 449 N.E.2d 658 (1983), where the evidence at most supported a finding as to only one of the factors. The defendant also asks that we reconsider our jury instruction regarding the meaning of "extreme atrocity or cruelty," specifically the instruction that a jury may find extreme atrocity or cruelty if the finding is based on one of the Cunneen factors, because that instruction does not provide "a fair measure to distinguish between murder in the first degree and murder in the second degree." Finally, the defendant requests that we exercise our authority pursuant to G. L. c. 278, § 33E, to reduce the jury's verdict to murder in the second degree based on the paucity of evidence of extreme atrocity or cruelty.

We discern no error in the judge's decision not to instruct the jury on defense of another or in his denial of the defendant's motion for a required finding of not guilty on the conviction of murder in the first degree on the theory of extreme atrocity or cruelty. However, we agree that we must revise our jury instructions regarding the Cunneen factors prospectively to more closely comport with the meaning we have always given to the term "extreme atrocity or cruelty." We accordingly include a new provisional jury instruction in an Appendix to this opinion. We also conclude that, based on the meager evidence of extreme atrocity or cruelty in this case, we should exercise our authority under G. L. c. 278, § 33E, to reduce the degree of guilt to murder in the second degree, which is a verdict more consonant with justice in light of the facts in this case.

Background. Where the defendant claims that the evidence is insufficient as a matter of law to support the jury's finding of extreme atrocity or cruelty, we present the facts in the light most favorable to the Commonwealth. See Commonwealth v. Conkey, 443 Mass. 60, 72, 819 N.E.2d 176 (2004).

On Friday, April 27, 2012, the victim and four of his friends went to a nightclub in Boston. Just before 2 A . M . on Saturday morning, as the group headed back to their car, they asked a bystander to take a photograph of them together. While the bystander took the photograph, a woman in a passing car, Jasmine Montero, shouted, "you fucking white boys," at the group, and the victim responded by shouting back, "fat spic." The car stopped, and the two continued yelling at each other. Montero then got out of the car and angrily approached the victim and his friends. The driver, Hector Lopez, also got out of the car, initially trying to calm Montero down; however, he soon started arguing with the victim, and the two eventually got into a fist fight.

Lopez and Montero had been out that night with a group of their friends: Luis Sepulveda, Sepulveda's girlfriend, Hector Ramirez, Marlon Ramirez, Jonathan Gonzalez, and the defendant. When the fight broke out between Lopez and the victim, this group had been heading back to their minivan in a nearby parking garage. Gonzalez was speaking with Montero on his cellular telephone when he heard "screaming and yelling" on Montero's end. Knowing where Montero had parked, he ran out of the parking garage in her direction to see what was happening and found her having an argument with the victim and his friends, while Lopez and the victim were exchanging blows. He tried to hold Montero and Lopez back and then called Marlon³ to help him break up the fight. Marlon ran toward the fight, followed by Sepulveda and the defendant, who first grabbed a loaded handgun from the minivan.

When Marlon reached the scene, he saw Lopez, with his face bloody, surrounded by the victim and his friends. The fighting had calmed down by that point, and the two groups had largely separated, but Marlon reignited the violence by punching one of the victim's friends, Christopher Testa, twice in the face. Testa put his hands up in a defensive posture and said that he had nothing to do with the fight, at which point Marlon switched his attention to the victim. Marlon and Lopez both advanced toward the victim, and Marlon and the victim exchanged several punches. While the two continued to fight, the defendant drew his gun and shot the victim once in the back from a few feet away.

After the shooting, the defendant fled the scene and was picked up by his friends in the minivan. Marlon, meanwhile, apparently unaware that the victim had been shot, chased him through the parking lot, still trying to fight, until he saw Hector, who said that someone was shooting. Marlon and Hector left the scene and were picked up by Montero, Lopez, Gonzalez, and the defendant in the minivan. The group headed to a party in Lynn, where the defendant cleaned the gun. The next day, he threw it into a body of water and booked a ticket to the Dominican Republic, where he was eventually apprehended and extradited back to the United States.

When first responders arrived at the scene, they found the victim collapsed on the ground, struggling to breathe and in apparent pain. As paramedics transferred him to a stretcher, the victim sat up and reached out. Several times in the ambulance, and again in the hospital, the victim opened his eyes, gasped for breath, and tried to grasp for anything within reach. The gunshot wound

ultimately caused his death: the bullet had entered the left side of his back and had severed his abdominal aorta, the main large blood vessel carrying blood to the body, causing him to bleed out internally.

The jury in this case were literally able to see the fight because two people at the scene used their cellular telephones to video-record the altercation as it happened, one person from ground level and the other from above within the parking garage. The ground-level video captured the actual shooting: in that video and the still photograph taken from it, the jury could see the defendant firing the sole fatal shot.

Discussion. 1. Defense of another. At trial, the focus of the defense case was that the shooting was justified because the defendant acted in lawful defense of his friend Marlon, who was fighting the victim when the shot was fired. However, over defense counsel's objection, the judge declined to instruct the jury on defense of another. On appeal, the defendant argues that he was entitled to the instruction and that the judge erred in declining to provide it. We disagree.

Because the defendant objected to the judge's decision not to provide the instruction, we review his claim for prejudicial error. See Commonwealth v. Vargas, 475 Mass. 338, 348, 57 N.E.3d 920 (2016). "The elements of defense of another are well settled: ‘An actor is justified in using force against another to protect a third person when (a) a reasonable person in the actor's position would believe his intervention to be necessary for the protection of the third person, and (b) in the circumstances as that reasonable person would believe them to be, the third person would be justified in using such force to protect himself.’ " Commonwealth v. Allen, 474 Mass. 162, 168, 48 N.E.3d 427 (2016), quoting Commonwealth v. Young, 461 Mass. 198, 208, 959 N.E.2d 943 (2012). A defendant is entitled to an instruction on defense of another only "if the evidence, viewed in its light most favorable to him, is sufficient to raise a reasonable doubt as to both these elements." Commonwealth v. Adams, 458 Mass. 766, 774, 941 N.E.2d 1127 (2011).

Here, even in the light most favorable to the defendant, the evidence does not support an instruction on defense of another. According to the defendant's own testimony, when he reached the scene, the fighting had settled down, and it was Marlon who "squared up" against the victim and moved closer before the victim punched Marlon in the face. Marlon then "went to approach [the victim] again," and the victim punched him a second time. It was at that point, as Marlon and the victim exchanged additional blows, that the defendant shot the victim. In these circumstances, no reasonable person would believe that Marlon would have been justified in using deadly force to protect himself. See Adams, supra.

A person who initiates a fight cannot generally claim self-defense. Commonwealth v. Barbosa, 463 Mass. 116, 136, 972 N.E.2d 987 (2012), quoting Commonwealth v. Maguire, 375 Mass. 768, 772, 378 N.E.2d 445 (1978) ("the right of self-defense ordinarily cannot be claimed by a person who provokes or initiates an assault"). Only if the initial aggressor "withdraws [from the fight] in good faith and announces his intention to retire" can he then claim self-defense if the other party continues to attack. Commonwealth v. Rodriquez, 461 Mass. 100, 110, 958 N.E.2d 518 (2011), citing Commonwealth v. Naylor, 407 Mass. 333, 335, 553 N.E.2d 542 (1990). And "the privilege to use deadly force ‘arises only in circumstances in which the defendant uses all proper means to avoid...