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Commonwealth v. Fantauzzi

Appeals Court of Massachusetts, Suffolk

March 21, 2017


          Heard: October 4, 2016.

          Indictments found and returned in the Superior Court Department on March 25, 2013.

         The cases were tried before Christine M. Roach, J.

          Katherine C. Riley for the defendant.

          Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

          Kafker, C.J., Trainor, & Henry, JJ.

          KAFKER, C.J.

         The defendant, Miguel Fantauzzi, was convicted by a jury of voluntary manslaughter on an indictment that charged murder in the second degree.[1] On appeal, he claims that the trial judge's jury instructions regarding the relationship of self-defense to felony-murder and voluntary manslaughter were erroneous and that the Commonwealth's closing argument contained improper statements. We agree that the instructions in this particularly complicated case, where the underlying felony did not mark the defendant as either the aggressor or initiator of the violence, were incorrect, and therefore we reverse the conviction of voluntary manslaughter.


          The jury were warranted in finding the following facts. On October 27, 2012, the victim, Christopher Powell, made plans with the defendant via text message to purchase drugs from the defendant. At 6:29 P.M., the defendant called the victim's cellular telephone (cell phone) and talked with him for a little over a minute. Shortly thereafter, the defendant entered the rear passenger seat of the victim's sport utility vehicle (SUV), which was parked on the street near 50 Clark Avenue in Chelsea. The victim sat in the driver's seat, and his friend, Robert Dobay, sat in the front passenger seat.

         After the defendant entered the SUV, the drug deal went awry. The defendant, who had brought a loaded firearm to the meeting, fired two shots inside the SUV. The defendant got out of the SUV, which began rolling until it hit the vehicle in front of it. The defendant then fired two more shots at the SUV, one of which shattered the back passenger side window and the other of which went through the front passenger door, grazing Dobay's leg. Dobay testified that after the shots were fired, he jumped out of the SUV and began running down Clark Avenue. As Dobay ran, he looked back and saw the defendant run to the SUV. Dobay continued to run, screaming for help, and the defendant began to run in the same direction. The defendant eventually arrived at the apartment where the mother of his son lived.

         Residents of an apartment building near 50 Clark Avenue testified that they heard gunshots on the night of the incident and went outside to the SUV, where they found the victim slumped over the steering wheel, bleeding profusely. The victim died from a large gunshot wound to his left chest. He also suffered two gunshot wounds to his scrotum and multiple gunshot wounds to his arms and legs.

         Police officers responding to the incident found a black stun gun on the floor beneath the SUV's steering wheel, an unsheathed knife between the driver's seat and the door frame, a digital scale on top of the vehicle's center console, and the victim's cell phone. Responding officers also recovered two discharged cartridge casings inside the SUV, one in the rear passenger's seat and the other toward the middle of the back seat, as well as four discharged casings in the street near the SUV. Two spent projectiles were recovered from the victim's body.


          The defendant testified at trial as follows. On the day of the incident, the defendant had agreed to sell the victim ten grams of heroin, and told the victim, via text message, to meet him at 50 Clark Avenue. Prior to meeting the victim, the defendant armed himself with a gun, because it was getting dark, and he had been robbed twice before at night in Chelsea. When he arrived at 50 Clark Avenue that night, the defendant called the victim and asked the victim to meet him by the stairs. Instead, the victim asked the defendant to meet him in his SUV, which was parked on Clark Avenue. After getting into the victim's SUV, the defendant handed the drugs to the victim, who placed them on an electronic scale sitting atop the SUV's center console. The man in the front passenger seat then reached around the seat, held a knife to the defendant's throat, and said, "[G]ive me everything you got or I'll stab you."

         The defendant went to reach for the passenger side door, but when he tried to open it, the victim grabbed the defendant's jacket with his right hand and pulled him back into the SUV. With his left hand, the victim reached toward the defendant with a powered-on stun gun. The front passenger reiterated, "Give me everything you got or I'll fucking stab you." The defendant managed to slap the knife away from the front passenger's hand before grabbing his own firearm. Without aiming, the defendant fired two shots inside the SUV. Then, he dove out of the SUV and fell to the ground. While on the ground, he heard another door of the SUV open, and he fired two more times toward the front passenger side of the vehicle. He stood up, fired two more shots into the air, and began walking quickly down Clark Avenue.

         The defendant eventually arrived at an apartment at 51 Parker Street to look for the mother of his son. At the apartment, the defendant met Jeffrey Martinez, who saw him looking panicked and crying. The defendant told Martinez that someone had tried to rob him. The defendant also introduced testimony from Detective Kevin Witherspoon, a computer forensic examiner, regarding text messages sent from the victim's cell phone the night before the incident stating, "I stuck somebody up tonight. ... I robbed somebody for their drugs again."

         The defendant testified that after the shooting, he dyed his hair in order to change his appearance, fled to New York, and disposed of the gun used in the shooting.

         Jury instructions.

         At trial, the jury were instructed on two theories of murder: murder in the second degree, and felony-murder in the second degree. The predicate felony for felony-murder in the second degree was unlawful possession of a firearm. The jury were also instructed on voluntary manslaughter and self-defense.

         Prior to charging the jury, the judge discussed the wording of the voluntary manslaughter instruction at length with the prosecutor and defense counsel. The discussion began with the judge asking whether the jury must first find the defendant not guilty under both theories of murder in the second degree before considering voluntary manslaughter. The prosecutor and defense counsel both answered yes, but defense counsel qualified his answer with, "to an extent."[2] When it became clear the judge meant to instruct the jury that voluntary manslaughter was a lesser included offense of felony-murder in the second degree, defense counsel stated his disagreement. The judge then asked defense counsel why he would not want a "defense-friendly charge, " and defense counsel did not reiterate his disagreement.[3]The judge then told the prosecutor and defense counsel that she thought "the correct statement of the law . . . is to tell [the jury] that manslaughter is an option on both theories [of murder in the second degree], but only if they first find against the Commonwealth on both theories." Both defense counsel and the prosecutor agreed this was correct. A few minutes later, however, the prosecutor clarified that she did not believe voluntary manslaughter was a lesser included offense of felony- murder in the second degree.[4] Not only did defense counsel eventually assent to an instruction that voluntary manslaughter was a lesser included of felony-murder in the second degree, he also pressed the judge, albeit unsuccessfully, to include a fourth element in the charge of felony-murder requiring that the Commonwealth prove the absence of mitigating circumstances, and he repeatedly stated, "[M]y position [is] that [self-defense is] an absolute defense to all charges of murder, all theories, and all lesser included offenses." Self-defense was the essence of the defense in the instant case.

         The judge instructed the jury regarding murder in the second degree in accordance with the Model Jury Instructions on Homicide 57-58 (2013) (Model Instructions), including a detailed explanation of the requirement that the Commonwealth must prove that the defendant did not act in self-defense: "A person is not guilty of any crime if he acted in proper self-defense. . . . If the Commonwealth fails to prove beyond a reasonable doubt that the Defendant did not act in proper self-defense, then you must find the Defendant not guilty." The judge also instructed the jury that the Commonwealth must prove the absence of mitigating circumstances.[5]

          The judge also instructed the jury on felony-murder in the second degree, identifying the underlying felony as the unlawful possession of a firearm and making clear that the jury must determine that the felony was committed with a conscious disregard for the risk to human life.[6] See Model Instructions 56, 58-60. With regard to felony-murder, the judge instructed the jury that the Commonwealth was "not required to prove the absence of self-defense to prove felony-murder in the second degree, " and that "[t]herefore, the instruction on self-defense I have just described . . . does not apply to the Commonwealth's theory of second degree felony-murder." The judge further instructed the jury that "if you find the Defendant not guilty of murder in the second degree and not guilty of second degree felony-murder, you shall consider whether the Commonwealth has proved the Defendant guilty beyond a reasonable doubt of the lesser included offense of voluntary manslaughter."

With regard to manslaughter, the judge stated:
"A killing that would otherwise be murder in the second degree is reduced to the lesser included offense of voluntary manslaughter where the Commonwealth has failed to prove that there were no mitigating circumstances. . . . In other words, a killing that would otherwise be murder under either of the two theories of murder described above is reduced to voluntary manslaughter if the Defendant killed someone ...

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