Commonwealth v. Morales

• Decision Date: 07 February 2013
• Docket Number: SJC–11084.
• Citation: 982 N.E.2d 1105,464 Mass. 302
• Parties: COMMONWEALTH v. Arcangel MORALES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

464 Mass. 302
982 N.E.2d 1105

COMMONWEALTH
v.
Arcangel MORALES.

SJC–11084.

Supreme Judicial Court of Massachusetts,
Essex.

Argued Oct. 1, 2012.
Decided Feb. 7, 2013.

[982 N.E.2d 1106]

Richard B. Klibaner for the defendant.

Catherine Langevin Semel, Assistant District Attorney, for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

BOTSFORD, J.

[464 Mass. 302]The defendant, Arcangel Morales, appeals from his conviction of manslaughter. The principal question before us concerns the rule adopted by this court in Commonwealth v. Adjutant, 443 Mass. 649, 824 N.E.2d 1 (2005)( Adjutant ). The question is this: during a trial where the defendant raises a claim of self-defense [464 Mass. 303]and, pursuant to Adjutant, has been permitted to

[982 N.E.2d 1107]

introduce evidence of the victim's prior violent acts on the issue of the identity of the first aggressor, may the Commonwealth introduce evidence of the defendant's prior violent acts on that same issue—to be followed by an instruction that the jury may consider the evidence of both parties' violent acts on the findings of who was the first aggressor? We answer the question “Yes,” provided that the Commonwealth gives the defendant notice appropriately in advance of its intent to introduce such evidence and the trial judge determines that introduction of such evidence is more probative of its intended purpose than prejudicial to the defendant.

1. Background. a. Prior proceedings. On September 26, 2002, the defendant was involved in a confrontation that culminated in his stabbing Michael Carey, the victim, with a knife and inflicting wounds from which the victim died. Thereafter, the defendant was indicted on a charge of murder in the first degree and a separate charge of assault and battery by means of a dangerous weapon against Leola Thomas; this second charge related to an incident that had occurred on September 22, 2002. The defendant was tried in the Superior Court in the spring of 2004. The jury convicted him of murder in the second degree and found him not guilty of the assault and battery charge. The defendant appealed, and the Appeals Court reversed because of an error in jury instructions and remanded the case to the Superior Court for a new trial. Commonwealth v. Morales, 70 Mass.App.Ct. 526, 533–534, 874 N.E.2d 698 (2007). The defendant was retried in October, 2008, and was convicted of the lesser included offense of manslaughter. We transferred the defendant's appeal to this court on our own motion and affirm the conviction.

b. Facts. The jury could have found the following facts at the second trial. At around 4 p.m. on September 26, 2002, the victim finished work and ate dinner with Robert Luiz, Mark Avellino, Bonnie Maguire, and Leola Thomas ¹ at a shelter in Lynn where they all resided intermittently. The group purchased a bottle of [464 Mass. 304]liquor at a nearby store and set out to drink it behind a building, a location they often selected in order to remain out of public view. As they rounded the corner of the building, Thomas observed the defendant, whom she as well as Luiz and Avellino recognized, standing with another man, Richard Valentine, and drinking a can of beer. On observing the defendant, Thomas immediately became hysterical and yelled to her group that the defendant was the person responsible for her previous injuries. In response, the victim approached the defendant and asked, “How could you do that to a woman?” Within a few seconds, the victim and the defendant engaged in an altercation that ended with the defendant's stabbing the victim three times. ² The defendant fled the scene.

[982 N.E.2d 1108]

Four days before this episode, on September 22, 2002, the defendant and Thomas had been involved in a physical confrontation outside a gasoline station near the shelter, and it had ended with the defendant hitting Thomas over the head with a beer bottle (bottle incident).³ Thomas suffered serious injuries to her right temple and chin and required immediate medical attention. According to the defendant,⁴ he encountered Thomas on three [464 Mass. 305]separate occasions between the September 22 bottle incident and September 26, and each time, Thomas and the people accompanying her had acted in a threatening and aggressive manner. The defendant had walked away from Thomas and her then companions on each of these previous encounters, but on September 26, he did not. He explained in substance that the pressure was too great, and he thought that the group, goaded to action by Thomas, was going to kill him.

c. Introduction of prior violent acts. The Adjutant case was decided in March of 2005, after the defendant's first trial but before his second. Pursuant to Adjutant, 443 Mass. at 665–666, 824 N.E.2d 1, the defendant filed a motion in limine before the second trial, seeking to admit evidence of the victim's arrest for a domestic disturbance and subsequent convictions of assault and battery and threatening to commit a crime; the date of the convictions was March of 2000, approximately two and one-half years before the September 26, 2002, encounter leading to the victim's death and ensuing murder charge against the defendant. The trial judge reserved ruling on the motion in limine until trial. During his opening statement, defense counsel stated that the evidence would show that the defendant had acted in self-defense, and that after the defendant's encounter with Thomas on September 22, Thomas and her friends on several occasions had threatened to retaliate against the defendant, causing him to fear for his life. Thereafter, as part of its case-in-chief, the Commonwealth introduced evidence describing the September 22 bottle incident between the defendant and Thomas—and specifically that the defendant had hit Thomas over the head with a bottle, causing injury—to explain the sequence of events leading to the altercation between the defendant and the victim four days later, namely, that the victim approached the defendant at that time to confront him about his earlier fight with Thomas. The defendant did not object to any of this evidence, and it was admitted without limitation.

During the defendant's case, the judge, referring to the Adjutant case, permitted the defendant to introduce evidence of the victim's arrest for domestic assault and battery and March, 2000, convictions of

[982 N.E.2d 1109]

assault and battery and threatening to commit a crime, as it related to the issue of the first aggressor in the [464 Mass. 306]September 26, 2002, confrontation.⁵ Thereafter, during his charge conference with defense counsel and the prosecutor, in a reference to the Adjutant case, the judge mentioned the prior violent acts of the victim and questioned whether the jury should be permitted to “consider prior acts of violence on the part of the defendant as well on the issue of who was first aggressor.” The judge expressed his views that he thought they should, that this was a “logical extension of Adjutant,” and that he ought so to instruct the jury. Defense counsel objected to the judge instructing the jury in this manner because it was not then the current state of the law and would “cast aspersions at the defendant's prior bad act.” ⁶

In his final instructions, the judge told the jury that “to the extent that you've heard evidence of prior acts of violence on the part of [the victim], on the one hand, or the defendant ..., on the other hand, you may consider such acts of violence in determining who might have been the first aggressor in this incident involving each of them.” The judge gave this instruction in relation to the issue of self-defense, the mitigating factor of use of excessive force in self-defense, and the mitigating factors of heat of passion based on reasonable provocation and heat of passion based on sudden combat.⁷ The defendant objected. Thereafter, in response to the jury's request for additional guidance on mitigating factors related to murder in the second degree and over the renewed objection of defense counsel, the judge reinstructed the jury on heat of passion based on reasonable provocation and sudden combat and use of excessive force in [464 Mass. 307]self-defense, and read again his instruction permitting the jury to consider the violent acts of both the victim and the defendant in considering who might have been the first aggressor.

2. Discussion. a. The Adjutant principle. In Adjutant, following the lead of Federal and nearly all State courts, this court concluded that “evidence of a victim's prior violent conduct may be probative of whether the victim was the first aggressor where a claim of self-defense has been asserted and the identity of the first aggressor is in dispute.” Adjutant, 443 Mass. at 650, 824 N.E.2d 1. Accordingly, we held that in such cases “the trial judge has the discretion to admit evidence of specific acts of prior violent conduct that the victim is reasonably alleged to have initiated.” ⁸Id. at 664, 824 N.E.2d 1.

[982 N.E.2d 1110]

We recognized in Adjutant that such evidence was propensity or character evidence that would be admitted expressly “for the purpose of showing that the victim acted in conformance with his character for violence,” id. at 654, 824 N.E.2d 1, and that there was a risk both of prejudice and of misunderstanding on the jury's part as to the purpose of its admission, id. at 663–664, 824 N.E.2d 1. However, we noted that a trial judge had discretion to exclude highly prejudicial evidence, and juries could, and should, be instructed specifically on the limited purpose of such evidence. Id. We thought there was a greater danger that the exclusion of the evidence concerning the victim's violent acts could prejudice the defendant because the evidence might offer the only way for a jury to assess the validity or likelihood of the defendant's account of what happened. See id. at 650 n. 1, 659–660, 824 N.E.2d 1. And we were persuaded, see id....