Heard: April 8, 2016.
cases were tried before Patrick F. Brady, J., and a motion
for a new trial, filed on May 6, 2014, was heard by him.
Laroche (Patricia L. Garin with her) for Robert Iacoviello.
J. Davis for James Heang.
M. Campbell, Assistant District Attorney (Edmond J. Zabin,
Assistant District Attorney, with her) for the Commonwealth.
Present: Cypher, Katzmann, & Massing, JJ.
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.
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.)
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
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 (2009).
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 £.M. to 8:45 £.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 fiancee, Constance Bethel, and her friend
Courtney, both of whom had been eating and drinking since
9:00 £.M. at another establishment.
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.
belonged to a neighborhood "crew" consisting of
defendant James Heang, Dararin Heang (known as Johnny),
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. That night, Iacoviello, Johnny, Papandrea,
and Lodie were "hanging out" with others and had
been drinking at Amanda McNeil's house.
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,
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."
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,  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
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,
"I represent, motherfucker. I represent. BK."
Talbot immediately "got heated" and both he and
Soto told Lodie, "Just get out of here. If you know
what's good, just get out of here." 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 . . .1 saw a muzzle flash."
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
ducked and turned to run, he saw Iacoviello, with the nine
millimeter Luger in his hand, shoot two more times in the
air. Johnny, Lodie, Iacoviello, and Papandrea then ran back
to Papandrea's vehicle and drove away.
Soto went to the aid of Talbot, Soto put his own Glock on the
ground. He also noticed Talbot's firearm lying on the
ground, so he grabbed it and put it down next to his own.
Later that day, September 29, 2007, Talbot died. The medical
examiner determined the cause of death to be a gunshot to the
head with injuries to the skull and brain.
immediate hours after the shooting, two .40 caliber
discharged cartridges were recovered at the scene. One was
found on the ground near the trash barrel behind which Soto
had taken cover. The other was found in that same trash
barrel. In addition, a hole was observed in the front bumper
of Soto's pick-up truck and the front driver's side
tire was flat. It appeared that a bullet had passed through
the bumper and into the tire. After the State police towed
the truck to the State police laboratory in Danvers, they
discovered a spent lead projectile in the tire. Upon
examination, the State police determined that it was
consistent with a .40 caliber bullet, but it was too damaged
to allow for any further conclusions.
and Iacoviello returned to the Heangs' home and put the
nine millimeter Luger back in the safe. Johnny then went to
another room, woke James up, and told him, "[W]e just
shot somebody." James, who was only partly awake, told
Johnny to leave him alone and went back to sleep. Later that
day, a friend of the group disassembled the gun and disposed
of it in various storm drains.
Brian Canavan of the State police ballistics unit later
examined both police-issued firearms to determine how much
ammunition was in them. Talbot's Glock contained fourteen
live bullets in a magazine and one live bullet in the
chamber, for a total of fifteen rounds of ammunition.
Soto's Glock contained twelve live bullets in a magazine
and one live bullet in the chamber, for a total of thirteen
rounds of ammunition. Canavan test fired Talbot's and
Soto's Glocks and examined the test cartridges against
the two .40 caliber cartridges found at the scene. Canavan
was of the opinion that the two casings were fired from
Soto's Glock, not Talbot's. Ultimately, only one
spent bullet was ever recovered at the scene (in addition to
the one recovered from Talbot's body).
police recovered gun pieces from the storm drains, including
two Hi-Point firearm parts (a slide and a barrel). Canavan
examined them and determined that they came from a nine
millimeter Luger. Using the pieces found in the storm drains,
as well as extra parts the State police maintained in their
own stock, Canavan rebuilt the weapon. Canavan test fired the
rebuilt nine millimeter Luger to obtain test-fired
projectiles and cartridges. He then examined the test
cartridges against the two nine millimeter casings found at
the scene and was of the opinion that the latter had been
fired using the recovered Hi-Point firearm parts. He also
examined the bullet recovered from Talbot's body during
the autopsy, but could not determine exactly what gun it had
been fired from, although it did have marks reflecting the
rifling system unique to Hi-Point firearms.
Absence of jury instruction on self-defense.
defendant is entitled to a self-defense instruction if any
view of the evidence would support a reasonable doubt as to
whether the prerequisites of self-defense were present."
Commonwealth v. Pike, 428 Mass.
393, 395 (1998). "In determining whether sufficient
evidence of self-defense exists, all reasonable inferences
should be resolved in favor of the defendant."
Ibid. "[W]e do not balance the testimony of the
witnesses for each side, nor do we consider the credibility
of the evidence." Commonwealth v.
Santos, 454 Mass. at 773. "The evidence bearing
upon self-defense may be contained in the Commonwealth's
case, the defendant's case, or the two in
combination." Commonwealth v.
Galvin, 56 Mass. Ap. Ct. 698, 699 (2002). See
Santos, supra ("The defendant is
entitled to an instruction on self-defense with a dangerous
weapon if the evidence, from any source, would warrant a
finding in his favor on that issue"). "[W]hether
the evidence raises a reasonable doubt as to the predicates
for self-defense is often a complex determination and ... a
trial judge should 'err on the side of caution in
determining that self-defense has been raised sufficiently to
warrant an instruction.'" Galvin,
supra at 701, quoting from Commonwealth
v. Toon, 55 Mass.App.Ct. 642, 644 (2002).
Given the circumstances of this case, the jury should have
been instructed on self-defense.
viewed in the light most favorable to Iacoviello, the
evidence reveals that a gunfight broke out behind Revere High
School in the early morning hours of September 29, 2007, in a
dark and somewhat confined space, between individuals in two
groups who were agitated and intoxicated, and that lasted
only a matter of seconds. The percipient witnesses had
different vantage points and could reasonably be viewed as
having certain allegiances and self-interests, including
cooperation agreements and the simple desire not to be
prosecuted, that might color their testimony. Given all of
these circumstances, it is not surprising that the percipient
witnesses provided somewhat conflicting accounts of the
critical events -- accounts that, in many cases, changed over
specifically, there was evidence that, viewed in the light
most favorable to Iacoviello, the Talbot group, and Talbot in
particular, precipitated events during the first encounter
with Lodie and continued to act aggressively during the
subsequent encounter with Lodie, Iacoviello, and the others
from the group. At no point during either encounter did any
of the members of the Talbot group, who were dressed in
civilian clothes and believed by the Iacoviello group to be
members of a rival gang or crew, ever announce that they were
police officers. A gun was openly visible in Soto's
holster. Moments before the shooting ...