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Commonwealth v. Iacoviello

Appeals Court of Massachusetts, Suffolk

September 15, 2016

ROBERT IACOVIELLO (and three companion cases[1]).

          Heard: April 8, 2016.

         The cases were tried before Patrick F. Brady, J., and a motion for a new trial, filed on May 6, 2014, was heard by him.

         Sara A. Laroche (Patricia L. Garin with her) for Robert Iacoviello.

          Willie J. Davis 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.

          CYPHER, J.

         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 (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 £.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.

         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, "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."

         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 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.

         When 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.

         In the 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.

         Johnny 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.

         Sergeant 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).

         The 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.

         2. Absence of jury instruction on self-defense.

         "A 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.

         When 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 time.

         More 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 ...

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