Commonwealth v. Teixeira
| Decision Date | 20 January 2021 |
| Docket Number | SJC-11279 |
| Citation | 160 N.E.3d 1179,486 Mass. 617 |
| Parties | COMMONWEALTH v. Joao TEIXEIRA. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Andrew S. Crouch, Boston, for the defendant.
Mary H. Nguyen, Assistant District Attorney, for the Commonwealth.
Present: Lenk, Gaziano, Cypher, & Kafker, JJ.1
The defendant was convicted of murder in the first degree by deliberate premeditation and of unlawful possession of a firearm in the shooting death of Keith Leverone. The victim was shot in the parking lot of a convenience store in Brockton on February 7, 2009. The defendant appeals from his convictions and from the denial of his motion for a new trial, which we consolidated with his direct appeal.
The defendant argues that a new trial is required in light of a number of errors at trial and in the denial of his motion for a new trial. In particular, he contends that the trial judge erred by declining to give a requested instruction on self-defense, and by allowing the prosecutor to introduce prior bad act evidence. The defendant asserts as well that certain of the prosecutor's remarks in her opening statement and closing argument were improper. The defendant also argues that he received ineffective assistance from his trial counsel, and that newly discovered evidence casts real doubt on the justice of the convictions. Finally, the defendant asks this court to exercise its authority under G. L. c. 278, § 33E, to reduce the verdict of murder in the first degree.
We conclude that there was no error, and accordingly affirm the convictions. We also discern no reason to use our extraordinary authority to reduce the murder verdict to a lesser degree of guilt or to order a new trial.
1. Background. a. Facts. We recite the facts as the jury could have found them, reserving some details for later discussion.
The shooting death of the nineteen year old victim occurred in the early morning of February 7, 2009, in a convenience store parking lot in Brockton. The fatal shot took place shortly after a fight between the defendant, the victim's brother, Olivio Leverone,2 and several others. Olivio was the Commonwealth's key witness at trial, and the only witness who saw the defendant holding a gun.
Olivio testified that at about 9 P.M. on February 6, 2009, he was driving around Brockton in his black Acura, with the victim and Olivio's friend Steven Andrade. While at an intersection, the defendant and Curtis Busby, both of whom were former friends of Olivio, approached in a maroon vehicle. From the front passenger's seat, the defendant fired two shots at Olivio. Olivio "took off," and neither the vehicle nor its occupants were hit. No one reported the incident to police, and another witness denied that the incident took place.
Later that night or in the early morning hours of February 7, 2009, Olivio, Andrade, and the victim drove to a gasoline station that was a popular hangout spot at that hour, after the bars closed. The defendant and Busby also were present. Olivio's friend, Camilo Pina, pinned the defendant against a vehicle, and Olivio ran up and stabbed the defendant twice in the leg with a pocket knife. A police officer who had been inside the building heard an argument and came outside. The officer testified that several arguments were occurring, there were many vehicles and people, and the situation was "just getting out of hand." It is unclear whether the arguments were related to the stabbing; the officer did not see a stabbing, nor did anyone report one. When the officer told the crowd to disperse, Olivio and his group complied. The victim remained in Olivio's Acura throughout the time the group was at the gasoline station.
Olivio, Pina, Andrade, and the victim then drove to a nearby convenience store that was also a popular place to gather. The parking lot was "packed," and about thirty people were present. The victim again stayed in the Acura. Olivio chatted with two women in a parked vehicle and then noticed that the defendant and Busby had arrived. Both Busby and the defendant were wearing gloves.
The defendant walked towards an open parking spot near Olivio and announced that he was ready to fight "whoever." He lifted his T-shirt, which Olivio understood to indicate that the defendant was not carrying a gun.
Olivio and one to three others "swung on" the defendant.3 They punched him, pulled his T-shirt over his head so he was unable to see, and kicked him. The "pummeling" lasted about five minutes, and ended when Olivio and the others had "pounded" the defendant to the ground.
Olivio walked away and headed towards his vehicle. Olivio noticed the victim seated in the rear seat, where he had remained "the whole time." While walking, Olivio turned around and saw the defendant getting up and approaching Busby, who was standing near a Dumpster. Olivio heard the defendant tell Busby, "Give me the gun," and saw Busby hand the defendant a gun; Olivio began to run past his Acura towards the street. When he was in the middle of the street, he heard a single gunshot, and turned around again to see the defendant driving away in the Acura.4 Olivio ran back to the parking spot and found the victim lying on the ground near a silver vehicle, not breathing.
Officers were dispatched to the scene; the first arrived within a few minutes, checked the victim, and did not find a pulse. The medical examiner later determined that the victim suffered a single gunshot wound to the top of his head. Olivio approached the officer and said that the person on the ground was his brother. Police initially questioned Olivio inside the store, and then asked him to come to the police station for further questioning.
Sometime that afternoon, the defendant's friend Anthony Bass was driving on Belmont Street when he saw the defendant walking and stopped to offer him a ride. The defendant was carrying a white plastic bag. Bass "popped" the trunk, and the defendant got into the vehicle without the bag. A few hundred feet further along Belmont Street, police stopped the vehicle and arrested both occupants. The vehicle was towed to a police garage, where it was searched. Police seized a white plastic bag from the trunk that contained a pair of jeans and a T-shirt, both stained with blood later determined to be the defendant's, and a pair of black gloves that subsequently tested positive for gunshot residue and the defendant's deoxyribonucleic acid (DNA).5
b. Prior proceedings. Before trial, the defendant moved to suppress evidence seized from his person and the vehicle in which he had been a passenger when he was arrested. The motion was denied. In a pretrial motion in limine, the Commonwealth sought to introduce evidence of prior bad acts, specifically, the shooting at Olivio's vehicle, and an alleged arson of Olivio's vehicle after the victim's death. The defendant opposed both motions. The judge excluded the arson evidence, but allowed the prosecutor to introduce evidence of the defendant's shooting at Olivio's vehicle, and the name of the city where the vehicle was found.
At trial, the prosecutor proceeded on theories of deliberate premeditation and extreme atrocity or cruelty. Olivio, the Commonwealth's key witness, testified pursuant to a cooperation agreement. At the close of the prosecutor's case, the defendant moved for a required finding of not guilty, which was denied. At a sidebar before the final charge, the defendant requested that the judge provide an instruction on self-defense; the judge declined to do so. The judge instructed the jury on murder in the first degree based on the theories of deliberate premeditation and extreme atrocity or cruelty; murder in the second degree; voluntary manslaughter; and the mitigating circumstances of reasonable provocation or sudden combat.
The jury convicted the defendant of murder in the first degree on a theory of deliberate premeditation. The defendant then moved to set aside the verdict and to order the entry of a finding of guilty of so much of the indictment as alleged manslaughter. The motion was denied.
The defendant's direct appeal subsequently was stayed pending resolution of his motion for a new trial, and his supplemental motion for a new trial. The motion judge, who was also the trial judge, denied the motion, and we consolidated the appeal from that denial with the defendant's direct appeal.
2. Discussion.6 a. Instruction on self-defense. The defendant argues that the judge erred in denying his request for an instruction
on self-defense, and maintains that the absence of such an instruction had a substantial effect on the jury's consideration of the case, resulting in prejudicial error.
An instruction on self-defense must be given if any view of the evidence, viewed in the light most favorable to the defendant, "is sufficient to raise the issue." See Commonwealth v. Harrington, 379 Mass. 446, 450, 399 N.E.2d 475 (1980). Here, according to the defendant, the evidence introduced at trial raised a reasonable doubt as to whether he shot the victim in self-defense, and, accordingly, the judge was required to instruct the jury on the use of deadly force in self-defense. The defendant also maintains that the judge's reliance on Commonwealth v. Barber, 18 Mass. App. Ct. 460, 463–464, 466 N.E.2d 531 (1984), S.C., 394 Mass. 1013, 477 N.E.2d 587 (1985), was misplaced, and the fact that the defendant instigated the confrontation did not make self-defense unavailable. See id. ().
Because the objection was preserved, we review for prejudicial error. Commonwealth v. Sosa, 79 Mass. App. Ct. 106, 115, 943 N.E.2d 970 (2011), citing Commonwealth v. Flebotte, 417 Mass. 348, 353, 630 N.E.2d 265 (1994). When reviewing the denial of an instruction on the use of deadly force in self-defense, a reviewing court asks whether, in...
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