Commonwealth v. Pina

• Decision Date: 12 February 2019
• Docket Number: SJC-11507
• Citation: 116 N.E.3d 575,481 Mass. 413
• Parties: COMMONWEALTH v. Emmanuel PINA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

481 Mass. 413

116 N.E.3d 575

COMMONWEALTH

v.Emmanuel PINA.

SJC-11507

Supreme Judicial Court of Massachusetts, Suffolk..

Argued October 5, 2018

Decided February 12, 2019

Edward B. Fogarty, Springfield, for the defendant.

Sarah Montgomery Lewis, Assistant District Attorney (John Pappas, District Attorney, also present) for the Commonwealth.

Present: Gants, C.J., Lenk, Gaziano, & Lowy, JJ.

GAZIANO, J.

A Superior Court jury convicted the defendant of murder in the first degree, on a theory of deliberate premeditation, in the shooting deaths of Jovany M. Eason and Manuel Monteiro. At trial, the Commonwealth alleged that the defendant and Eason were involved in an altercation inside a bar, then the fight spilled out into the street, where the defendant grabbed a handgun from his codefendant and fired at Eason.¹ The defendant missed, but the stray round shattered a window in front of the bar and hit Monteiro, a bar employee, in the chest. The defendant, according to the Commonwealth, then chased Eason down the street and shot him multiple times in the back. As the defendant fled the scene, one of Eason's friends, Timothy Santos, shot at the defendant, and they exchanged several rounds of gunfire.²

In this consolidated appeal from his convictions and from the denial of his motion for a new trial, the defendant challenges a number of the judge's rulings and his instructions to the jury. The defendant argues that the judge erred in denying his requests for an instruction on accident with respect to Eason's death, and instructions on voluntary and involuntary manslaughter with regard to Monteiro's death. The defendant maintains that he was denied a fair trial because the judge miscalculated the number of preemptory challenges that had been exercised by his trial counsel, depriving him of two additional challenges that could have been made. The defendant maintains also that the judge erred in allowing identification testimony by a police officer who identified the defendant as an individual shown in video surveillance footage, as well as by many of the others at the scene. In addition, the defendant argues that trial counsel's failure to present an intoxication defense through available witnesses constituted ineffective assistance of counsel. Finally, the defendant asks this court to exercise its extraordinary authority pursuant to G. L. c. 278, § 33E, and to grant him a new trial or to reduce the conviction to a lesser degree of guilt.

After considering all of the defendant's arguments, and conducting a thorough review of the trial record, we conclude that there is no reversible error, and no reason to disturb the verdicts.

1. Background. We summarize the facts that the jury could have found, reserving other facts for our discussion of specific issues. Many of the events, both inside and outside the bar, were captured by the bar's security cameras, as well as by security cameras mounted on a nearby building.

In the early morning hours of August 2, 2009, an argument broke out at a bar and restaurant on Hancock Street in the Upham's Corner neighborhood of Boston. The argument started shortly after the codefendant and a companion entered the bar. In the entranceway, the codefendant greeted another patron with a hug, then said, "I don't understand why you hang with the Draper Street niggas." The victim, Jovany Eason, who was friendly with people from the Draper Street neighborhood, took exception. Eason approached the codefendant and they exchanged angry words. A bouncer moved in and separated the two men. The codefendant and his friend left the bar and walked away from the area; Eason did not leave.

The dispute continued inside the bar, where Eason argued with one of the codefendant's friends, Otelino Goncalves. The altercation moved from the entranceway to the rear of the bar near the restrooms. A few minutes later, the defendant, who was also a friend of the codefendant, entered the bar and headed directly to the men's restroom, where he joined Goncalves in arguing with Eason and some of Eason's friends. A fight broke out between the defendant and Eason and their respective friends. The bar owner, some of his employees, and a regular customer named Adelberto Brandao separated the combatants. The defendant was escorted out of the bar through the front door. Eason left the bar on his own accord immediately before the defendant was ejected.

The hostilities spilled out onto Hancock Street, where Eason squared off to fight Goncalves in the middle of the street. Before any punches were thrown, the codefendant walked up to Eason and pointed a pistol at him. A patron inside the bar, Joao DePina,³ observed the codefendant attempt to "rack" the handgun or, as the witness described it, "He was trying to get the bullet to shoot at something." Eason backed away. The defendant then grabbed the weapon from his codefendant's hand. He ran toward Eason, who was standing on the sidewalk in front of the bar, and fired. The defendant missed Eason, but the stray round, fired from a .45 caliber weapon, shattered a plate glass window near the front door of the bar and struck Monteiro in the chest. Monteiro, who was working a second job as a cook, had been watching the altercation on the street from inside the bar. He collapsed in the middle of the bar, and was pronounced dead by emergency medical technicians who arrived at the scene.

Outside, the defendant chased Eason down Hancock Street while firing at Eason. The two passed a community center on the corner of Hancock Street and Jerome Street which had its own security cameras. At the three-way intersection of Hancock Street, Jerome Street, and Bird Street, the defendant ran to the right onto Jerome Street. Eason ran to the left onto Bird Street, and collapsed near the intersection shortly after he turned onto Bird Street.⁴

On Jerome Street, near Cushing Avenue, the defendant encountered Timothy Santos, one of Eason's friends. Santos, who was armed with a .380 caliber handgun, shot at the defendant, who fired back. Both men fired multiple rounds; the defendant hit Santos in the leg above the knee. A friend dropped Santos off at a hospital, where he refused to cooperate with police, and told his doctors that he woke up with the gunshot wound

.⁵

Police officers found Eason lying face down on the ground near the intersection of Hancock Street and Bird Street. He had been shot in the lower back, in the upper back near his shoulder blade, and through the shoulder or upper arm. The medical examiner extracted a .45 caliber projectile from Eason's lower back; the other two projectiles passed through his body. At trial, the medical examiner opined that Eason died as a result of suffering two gunshot wounds

to the torso.⁶

2. Discussion. a. Instruction on accident. Following the jury charge, the defendant requested that the judge instruct the jury that Eason's death could be excused as an accident. Trial counsel argued, "[T]here was a gun battle on top of Jerome Street and that the person who was shooting down with a .45 could, in fact, in self-defense [have] shot Mr. Eason. And that would fall under the category, as I'm thinking about it, accident." Trial counsel also filed a supplemental request for jury instructions which read, in part,

"In this case there is evidence that there was an exchange of gunfire between two individuals on Jerome Street ... If you conclude that the government has failed to prove beyond a reasonable doubt that the person who shot Mr. Santos did not act in self-defense, then for purposes of the following instruction, you may consider whether the shooting death of Mr. Eason was or was not an accident."

The prosecutor urged the judge not to instruct on accident, on the ground that there was no basis in the evidence for such an instruction because the defendant fatally shot Eason prior to the firefight on Jerome Street. The judge declined the motion that the jury be instructed on accident with respect to Eason. Because the defendant objected, we review to determine whether there was prejudicial error. Commonwealth v. Martinez, 431 Mass. 168, 173, 726 N.E.2d 913 (2000).

Accident, like self-defense and defense of another, is an affirmative defense. Commonwealth v. Podkowka, 445 Mass. 692, 699, 840 N.E.2d 476 (2006). In the case of murder in the first or second degree, accident negates the element of intent to kill the victim. Commonwealth v. Chambers, 465 Mass. 520, 536 n.15, 989 N.E.2d 483 (2013) ; Lannon v. Commonwealth, 379 Mass. 786, 790, 400 N.E.2d 862 (1980). If "fairly raised" by the evidence, due process requires that the Commonwealth disprove accident beyond a reasonable doubt. Podkowka, supra ; Commonwealth v. Palmariello, 392 Mass. 126, 145, 466 N.E.2d 805 (1984). See Commonwealth v. Robinson, 382 Mass. 189, 203, 415 N.E.2d 805 (1981). A judge, of course, should not instruct on accident where there is no evidence of an accident. See Commonwealth v. Hutchinson, 395 Mass. 568, 578-579, 481 N.E.2d 188 (1985).

A defendant is entitled to an accident instruction in a shooting death "only where there is evidence of an unintentional or accidental discharge of a firearm." Commonwealth v. Millyan, 399 Mass. 171, 182, 503 N.E.2d 934 (1987). See e.g., Commonwealth v. Neves, 474 Mass. 355, 371, 50 N.E.3d 428 (2016) (accident instruction warranted based on defendant's statements to police that gun discharged accidentally when taxicab driver accelerated and grabbed defendant's hand); Commonwealth v. Zezima, 387 Mass. 748, 750, 756, 443 N.E.2d 1282 (1982) (accident instruction predicated on evidence that firearm discharged as third party attempted to take gun out of defendant's hand); Commonwealth v. Zaccagnini, 383 Mass. 615, 616, 420 N.E.2d 350 (1981) (reasonable doubt concerning accident raised where defendant testified victim had gun and it discharged as they struggled for control of it); Lannon, 379 Mass. at 787, 790, 400 N.E.2d 862 (petitioner testified fatal shot was fired when screen door...