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Commonwealth v. Pina

Supreme Judicial Court of Massachusetts, Suffolk

February 12, 2019


          Heard: October 5, 2018.

          Indictments found and returned in the Superior Court Department on October 27, 2009. The cases were tried before Elizabeth B. Donovan, J., and a motion for a new trial, filed on November 20, 2015, was considered by Christine M. Roach, J.

          Edward B. Fogarty 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 (2000).

         Accident, like self-defense and defense of another, is an affirmative defense. Commonwealth v. Podkowka, 445 Mass. 692, 699 (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 (2013); Lannon v. Commonwealth, 379 Mass. 786, 790 (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 (1984). See Commonwealth v. Robinson, 382 Mass. 189, 203 (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 (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 (1987). See e.g., Commonwealth v. Neves, 474 Mass. 355, 371 (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 (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 (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 (petitioner testified fatal shot was fired when screen door hit gun he was holding, causing it to discharge).

         The circumstances in Millyan, 399 Mass. at 174-176, are instructive as to the defendant's claim that it was error not to give an accident instruction based on the evidence before the jury. In that case, the defendant entered a bar carrying a loaded shotgun; he was seeking to avenge the earlier stabbing of one of his friends, and to preempt a threat made to do him similar harm. Id. at 174-175. The defendant announced that if he saw any members of a rival motorcycle gang in the bar, "he was going to blow them away." Id. at 175. After issuing this threat, the defendant pointed the shotgun toward the rear of the bar and fired a shell in the victim's direction. Id. at 176. The victim, who was standing in a poolroom adjacent to the bar, was fatally struck in the head by a number of pellets. Id. At 175-176. On appeal, the defendant contended that an accident instruction was required because he had fired the shotgun recklessly in a crowded barroom. Id. at 182. We held that the defendant's claim that the victim's death was the unfortunate by-product of an "intentional discharge of the shotgun" did not raise the legal defense of accident. Id.

         Here, the defendant claimed that he accidentally shot the victim while exercising his right to self-defense. The theories of self-defense and accident are "mutually exclusive." Commonwealth v. Barton, 367 Mass. 515, 518 (1975) . A defendant who shoots another in the lawful exercise of self-defense is entitled to an accident instruction where the facts independently support an argument that the weapon was discharged accidentally. Id. at 517-518. See Commonwealth v. Lacasse, 1 Mass.App.Ct. 590, 598 (1973), S.C., 365 Mass. 271 (1974) (discussing "anomalous doctrine of accidental self-defense"). In Barton, supra at 517, we noted that the evidence warranted an instruction on the independent theories of self-defense and accident because the defendant claimed that "the gun went off" during the fatal struggle. Similarly, in Zaccagnini, 383 Mass. at 616, the defendant's testimony that the victim had a gun, and that it "went off" as they wrestled for control of it, raised "a reasonable doubt concerning whether the shooting was accidental, and . . . whether the defendant acted in self-defense."

          Here, the defendant was not entitled to an accident instruction because there was no evidence that he unintentionally or accidentally discharged a firearm. See Commonwealth v. Gibson, 424 Mass. 242, 246 n.3, cert, denied, 521 U.S. 1123 (1997) ("defendant's own testimony that he fired the gun without aiming eliminated any issue as to accident"). Based on the number of .45 caliber shell casings deposited on Jerome Street, it is clear that the defendant intentionally fired multiple rounds at Santos after being fired upon. The defendant's claim that Eason's death was the unfortunate byproduct of an intentional shooting at another person does not raise the affirmative defense of accident. Millyan, 399 Mass. at 182.

         b. Transferred intent self-defense.

         The circumstances of this case require us, in the exercise of our plenary review pursuant to G. L. c. 278, § 33E, to consider an issue of first impression. In other States, the shooting death of a bystander during an act of self-defense may be excused by application of transferred intent self-defense.[7] See W.R. LaFave, Criminal Law, § 6.4, at 449 (6th ed. 2017) (LaFave). We conclude that the defendant is not entitled to relief pursuant to G. L. c. 278, § 33E, because the facts in this case do not support the application of transferred intent self-defense, and we leave its adoption as a matter of our homicide jurisprudence for another day.

         The theory of transferred intent is well established in the Commonwealth and, indeed, forms the basis for the defendant's liability for the shooting death of Monteiro. See Model Jury Instructions on Homicide at 45-46 (2018). Under this theory, "if a defendant intends to kill a person and in attempting to do so mistakenly kills another person, such as a bystander, the defendant is treated under the law as if he intended to kill the bystander." Commonwealth v. Taylor, 463 Mass. 857, 863 (2012). See Commonwealth v. Vazquez, 478 Mass. 443, 453 (2017) (transferred intent applies where defendant misidentifies victim); Commonwealth v. Fisher, 433 Mass. 340, 344 n.5 (2001) ("the jury need only find that the defendant intended to kill one person and, in the course of an attempt to do so, killed another" [quotation and citation omitted]).

         In a number of States, the theory of transferred "innocent" intent has been applied to excuse the shooting death of a bystander during the lawful exercise of self-defense.[8] See e.g., State v. Stevenson, 38 Del. 105, 111 (1936); Pinder v. State, 27 Fla. 370, 377-379, 383-387 (1891); People v. Jackson, 390 Mich. 621, 624 (1973); State v. Green, 206 S.E.2d 923 ( W.Va. 1974). See generally Annot., Unintended Killing of or Injury to Third Person During Attempted Self-defense, 55 A.L.R. 3d 620 (1974). In LaFave, supra at 449, the concept is explained as follows:

"There are, of course, some situations where, though A intentionally kills or injures B, A is not guilty of murder or battery. . . . Now suppose A shoots at B under these circumstances but, missing B, hits and kills or injures C, an innocent bystander. If A aims at his attacker B in proper self-defense, but hits C instead, he is not generally guilty of murder or battery of C. Once again, he is only as guilty as to C as he would have been had his aim been accurate enough to have hit B."

          We have not as yet recognized transferred intent self-defense as a matter of our homicide jurisprudence, and need not do so in this case. Viewed in the light most favorable to the defendant, the evidence established that he fired errant gunshots in the direction of Bird Street, where Eason collapsed. The defendant, however, cannot point to any evidence that he fatally shot Eason during his gun battle with Santos. To the contrary, the evidence supported a reasonable conclusion that the defendant shot Eason prior to the gunfight on Jerome Street, based on shell casings recovered on Hancock Street, surveillance footage of Eason grabbing his back in the spot where he suffered a fatal gunshot wound, and the fact that Eason was found unresponsive a short distance along Bird Street after rounding the corner from Hancock Street. See Commonwealth v.Perry, 432 Mass. 214, 225 (2000) ("Where a defendant causes injury which, along with other contributing factors or medical sequella of the injury, leads to death, jurors may determine that the defendant's acts were the proximate cause of the injury"); Commonwealth v.Rhoades, 379 Mass. 810, 825 (1980) (defendant causes victim's death where his actions were "a cause, which, in the natural and continuous sequence ...

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