Commonwealth v. Iacoviello
| Decision Date | 15 September 2016 |
| Docket Number | No. 13–P–1818.,13–P–1818. |
| Citation | 90 Mass.App.Ct. 231,58 N.E.3d 1032 |
| Parties | COMMONWEALTH v. Robert IACOVIELLO (and three companion cases). |
| Court | Appeals Court of Massachusetts |
Sara A. Laroche (Patricia L. Garin with her), Boston, for Robert Iacoviello.
Willie J. Davis, Boston, for James Heang.
Cailin M. Campbell, Assistant District Attorney (Edmond J. Zabin, Assistant District Attorney, with her) for the Commonwealth.
Present: CYPHER, KATZMANN, & MASSING, JJ.
In the early morning hours of September 29, 2007, two groups converged in the dark near a baseball field behind Revere High School. One group consisted primarily of off-duty Revere police officers dressed in civilian clothes. The other group consisted of four local young men who were either members of or affiliated with a gang. Both groups had been drinking for much of the night. Heated, gang-related words were exchanged. Guns were fired from both sides. One person, off-duty Revere police Officer Daniel Talbot, was fatally wounded. A second person, defendant Robert Iacoviello, was charged with murder in the first degree, carrying a firearm without a license, and possession of a firearm without a firearm identification card. A third person, defendant James Heang, who had not been present during the fateful encounter, was charged with being an accessory after the fact in aid of Iacoviello and carrying a firearm without a license.
In a joint trial, a jury found Iacoviello guilty of murder in the second degree, G.L. c. 265, § 1, and carrying a firearm without a license, G.L. c. 269, § 10(a ).2 The jury found Heang not guilty of carrying a firearm without a license, G.L. c. 269, § 10(a ), but guilty of being an accessory after the fact, G.L. c. 274, § 4. The defendants appeal, raising issues they preserved during the proceedings below. Iacoviello primarily argues that the trial judge erred by declining to instruct the jury on self-defense, voluntary manslaughter, and involuntary manslaughter. Heang primarily argues that the trial judge erred by prohibiting him from pursuing a consanguinity defense, which is an exemption to prosecution under the accessory after the fact statute. For the reasons discussed below, we vacate Iacoviello's conviction of murder in the second degree and Heang's conviction of accessory after the fact.3
1. Background. We recite the facts in the light most favorable
to defendant Iacoviello to determine whether he was entitled to jury instructions on self-defense, voluntary manslaughter, and involuntary manslaughter. See Commonwealth v. Santos, 454 Mass. 770, 773, 912 N.E.2d 985 (2009).
After an afternoon of firearms certification exercises on September 28, 2007, Talbot and two of his fellow officers, William Soto and Evan Franklin, spent the late afternoon and early evening drinking beer. At about 8:30 P.M. to 8:45 P.M., the three off-duty officers went to the bar at Margarita's restaurant, where they met several other Revere police officers, including Stacey Bruzzese. Three hours later, at around 11:45 P.M., they were joined by Talbot's fiancée, Constance Bethel, and her friend Courtney, both of whom had been eating and drinking since 9:00 P.M. at another establishment.
At approximately 12:30 A.M. or 12:45 A.M., now on Saturday, September 29, 2007, Talbot, Bethel, Soto, Bruzzese, and Franklin left Margarita's and drove to the baseball field behind Revere High School in Soto's pick-up truck. Soto parked in the school parking lot, directly in front of an opening in the outer fence around the ballfield. The opening provided access to a path that, in turn, led down the first base side of the field, behind some bleachers and eventually out to American Legion Highway. Talbot, Soto, Franklin, and Bethel each grabbed a couple of beers from the cooler in Soto's truck and, along with Bruzzese, proceeded down the path to the bleachers, where they remained, talking and drinking. The area was poorly lit and none of the officers was in uniform. Talbot and Soto, however, were carrying their department-issued firearms, .40 caliber Glock 22 pistols. At some point while they were at the bleachers, Soto gave his sweatshirt to Bruzzese because she was cold, leaving his holster and firearm openly visible.4
Iacoviello belonged to a neighborhood “crew” consisting of defendant James Heang, Dararin Heang (known as Johnny),5 Thomas Papandrea, and Derek Lodie. They referred to themselves as “Broadway,” and although they were not a gang, they were on good terms, and associated, with a gang known as the “Bloods.” Johnny, James's older brother, was the only one from Broadway who was also a member of the Bloods.6 That night, Iacoviello, Johnny, Papandrea, and Lodie were “hanging out” with others and had been drinking at Amanda McNeil's house.
After the Talbot group had been at the bleachers behind the high school for a period of time, they observed a person approaching on foot along the path. The descriptions of what transpired next differed in various respects from witness to witness. It can be determined from the record, however, that a male in a red shirt and hat, later identified as Lodie,7 came down the path from the direction of Soto's parked truck and traveled behind the bleachers where the Talbot group was gathered. He was on his cellular telephone (cell phone) and had a “limp” or “swagger.” Witnesses differed as to whether Talbot or Lodie spoke first. In any event, it appears that Talbot said, “Blood killer,” and Lodie did not respond but kept walking. Someone in the Talbot group said out loud that the person walked like a gangster, to which Lodie responded, “Yeah, a gangster, right.”
Lodie was communicating with Johnny over a cell phone as he walked by the bleachers. He told Johnny that there were people in the field behind Revere High School “causing trouble,” “running their mouths,” and “disrespecting Bloods.” Lodie thought they were a gang, and Johnny suspected it might be the Northgate crew. A few minutes later, Lodie called again and Johnny could hear people in the background on Lodie's end saying, “Blood killer.” At trial, Johnny testified that Lodie did not ask for help, but he told Lodie to stay where he was and they would pick him up “and start some trouble.” Iacoviello, Papandrea, and Johnny then left McNeil's house in Papandrea's motor vehicle. On their way to the high school, Johnny and Iacoviello stopped at the Heangs' home, where they retrieved a nine millimeter Luger from a safe in James's room. At that time, James was asleep in another room. From the time the three left McNeil's house until they eventually arrived at Revere High School, Johnny was in nearly constant communication with Lodie over their cell phones through a “direct connect” feature,8 with Johnny telling Lodie repeatedly to stay put at the field. Johnny testified that he had decided to bring the gun to scare the other people at the high school.9
A short time after the Talbot group's first encounter with Lodie, Lodie reappeared at the field behind Revere High School and another confrontation with the Talbot group ensued. Once again, the descriptions of what transpired differed in various respects from witness to witness. It can be determined from the record, however, that Lodie returned, walking behind the bleachers from the direction of American Legion Highway and heading toward the school and Soto's parked truck. As he passed the bleachers, Lodie, who was on his cell phone, raised his hands and said something to Talbot to the effect of, “[Y]ou're going to see what's up now.” Talbot responded and engaged in a verbal exchange with Lodie. Lodie was waving his hands and saying, Talbot immediately “got heated” and both he and Soto told Lodie, Talbot then started walking toward Lodie. According to Papandrea, while he, Iacoviello, and Johnny were walking toward Lodie, he overheard Lodie on the other end of a cell phone, using the direct connect feature, say that someone from the other group at the field had “flashed a hammer,” meaning that they had showed a gun. The three ran toward Lodie. Soto saw three “short kids, ... wearing hooded sweatshirts” and with bandanas or black masks covering their faces appear from behind Soto's truck and stand in a line with Lodie. Papandrea saw Iacoviello pull out the Luger. According to Soto, the three approaching individuals got “pretty close” to Lodie, so that they and Lodie were essentially in a line next to each other, and “[t]hey shot at us ... I saw a muzzle flash.”
Talbot was somewhat ahead and to the left of Soto when the shot rang out. It was at that point, “pretty simultaneously” with the gunshot, that Soto realized for the first time that Talbot had his firearm out. As Soto had been following Talbot, he had been more focused on Lodie and could not see what Talbot was doing with his hands. He did not see at what point Talbot had actually unholstered his weapon. Talbot was in a “firing stance” when Soto first saw him with his weapon out. As described by Soto, Talbot had assumed a “side stance” with the gun in his right hand, pointed toward the other group, and his right foot slightly back at an angle. Soto, too, assumed a firing stance and fired two or three times back at the other group before moving to his right to take cover behind a trash barrel. Once behind the barrel, Soto looked to his left and saw Talbot lying on the ground, not moving. According to Soto, Talbot was unresponsive from the moment he was shot. During the entire encounter with the other group, none of the officers ever identified themselves as police. Johnny heard a shot go off behind his right shoulder. When he heard the shot, he saw a male from the Talbot group, who was facing them, “drop,” falling sideways toward the baseball field. Then there was gun fire—a “couple of” shots—coming back at them from the Talbot group. As Johnny...
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