Commonwealth v. Iacoviello , 90 Mass. App. Ct. 231 ( 2016 )

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13-P-1818 Appeals Court
COMMONWEALTH vs. ROBERT IACOVIELLO
(and three companion cases 1).
No. 13-P-1818.
Suffolk. April 8, 2016. - September 15, 2016.
Present: Cypher, Katzmann, & Massing, JJ.
Homicide. Practice, Criminal, Instructions to jury. Self-
Defense. Wanton or Reckless
Conduct. Intoxication. Evidence, Prior violent
conduct. Accessory and Principal.
Indictments found and returned in the Superior Court
Department on December 20, 2007.
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.
1
Two of the companion cases are against Iacoviello and one
is against James Heang.
2
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
2
Prior to the start of the trial, Iacoviello pleaded guilty
to possession of a firearm without a firearm identification
card.
3
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 P.M. to 8:45 P.M.,
the three off-duty officers went to the bar at Margarita's
restaurant, where they met several other Revere police officers,
3
Although Iacoviello's notice of appeal included an appeal
from his conviction of the firearm charge under G. L. c. 269,
§ 10(a), he has not raised any challenge to that conviction in
his appeal. In addition, Iacoviello's appeal from an order
denying his motion for new trial was consolidated with his
underlying appeal, but he has not raised any separate challenge
to that order on appeal.
4
including Stacey Bruzzese. Three hours later, at around 11:45
P.M., they were joined by Talbot's fiancée, Constance Bethel,
and her friend Courtney, both of whom had been eating and
drinking since 9:00 P.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
4
Franklin testified that he left his firearm in a backpack
in the back seat of Soto's truck. Bruzzese testified that her
firearm was at her home in a safe.
5
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
5
Because they share a surname, we will refer to the Heang
brothers as James and Johnny to avoid confusion.
6
The Bloods were rivals of another gang known as the
"Crips." The Crips, meanwhile, were associated with a crew
known as "Northgate," named after a Revere apartment complex
with that name. In early September, 2007, members of Broadway,
including Iacoviello, James, and Johnny, had engaged members of
Northgate in a brawl in front of Revere High School.
7
The witnesses often referred to this person as the man in
the red shirt or the man in the red hat. We will refer to the
man in the red shirt as Lodie.
6
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
7
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
8
The direct connect feature, available on certain cell
phone models, allows two cell phone users to speak to one
another as if using walkie talkies.
9
Johnny testified that he had fired the Luger prior to
September 29, 2007, at night in a field near McNeil's house.
When he retrieved the gun from the safe in the early morning
hours of September 29, 2007, he was aware that there were three
bullets in it, because that was how many remained when he had
put it back in the safe after shooting it, and no one else had
subsequently handled it.
8
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 . . . I 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
9
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
10
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
11
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
12
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
13
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 broke out, Talbot, who was heated and
refused pleas to let matters be, advanced on Lodie and headed in
the direction from which Iacoviello, Papandrea, and Johnny
appeared.
14
Still further, there was evidence that, when viewed in the
light most favorable to Iacoviello, Talbot not only drew his
Glock during the second encounter, he also assumed a "firing
stance," aimed at the Iacoviello group, and fired as many as two
to three shots. No one could say exactly when Talbot drew his
weapon. 10 There was evidence, however, that the first shot fired
from the Iacoviello group struck Talbot in the head, that the
nature of the wound would have immediately rendered Talbot
incapable of volitional movement, and that, in fact, he was
unresponsive from the moment he was shot. If that evidence was
believed, a reasonable juror could conclude that Talbot not only
pulled out his gun, but also assumed a firing stance aiming in
the direction of the Iacoviello group, and fired before he
himself was shot. A reasonable juror also could infer from this
that Talbot pulled out his Glock and aimed it at the Iacoviello
group, and possibly even fired it, before Iacoviello pulled out
the nine millimeter Luger. That is what Papandrea told the
police had occurred when he gave a recorded statement two days
after the shooting, on October 1, 2007. Specifically, Papandrea
stated that he was behind both Iacoviello and Johnny as they
rounded the corner near Soto's truck and approached Lodie and
the Talbot group, that at that moment he heard the first gunshot
10
The Commonwealth conceded that Talbot's gun was out at
least by the time he was shot.
15
ring out and it was coming toward his group, and that only then
did he see Iacoviello pull a gun from his waistband and fire one
shot. 11
A self-defense instruction need only be given when deadly
force was used if the evidence warrants "at least a reasonable
doubt that the defendant: (1) had reasonable ground to believe
and actually did believe that he was in imminent danger of death
or serious bodily harm, from which he could save himself only by
using deadly force, (2) had availed himself of all proper means
to avoid physical combat before resorting to the use of deadly
force, and (3) used no more force than was reasonably necessary
in all the circumstances of the case." Commonwealth
v. Harrington, 379 Mass. 446, 450 (1980). Based on the
foregoing facts, among others, there was at least a reasonable
doubt as to all three elements.
a. Iacoviello's actual belief. Throughout the trial, the
judge expressed skepticism that a self-defense instruction was
warranted and ultimately deemed it "too speculative." "A
11
The Commonwealth notes that when asked about this
statement at trial, Papandrea testified that it was not the
truth. The Commonwealth contends that the prior statement was
not admitted at trial for its truth. When Papandrea was
questioned about this prior inconsistent statement on cross-
examination, however, there was no objection lodged, meaning it
was admitted in evidence for all purposes. See Commonwealth v.
Keevan, 400 Mass. 557, 562 (1987); Commonwealth v. Jones, 439
Mass. 249, 261-262 (2003). The jury, therefore, were free to
believe the prior statement, the later statement, or neither
statement.
16
defendant's actual belief that he was in imminent danger of
death or serious bodily harm from which he could only save
himself by using deadly force looks to the defendant's
subjective state of mind." Commonwealth v. Toon, 55 Mass. App.
Ct. at 650. Such belief may be determined by circumstantial
evidence. Id. at 650-651. Here, the aforementioned facts, if
believed, establish that when Iacoviello entered the scene near
Soto's truck, he found himself facing Talbot, who was in a
firing stance and aiming a gun in Iacoviello's direction.
Whether Talbot actually fired first or not, however, these
circumstantial facts, and the reasonable inferences drawn
therefrom, are sufficient to raise at least a reasonable doubt
that Iacoviello had a reasonable ground to believe, and actually
did believe, that he was in imminent danger of death or serious
bodily harm.
b. Duty to retreat. There is also at least a reasonable
doubt as to whether Iacoviello availed himself of all proper
means to avoid physical combat before resorting to the use of
deadly force. Here, there was evidence that Iacoviello entered
the dark pathway, where he would have been partially surrounded
by Soto's truck and two nearby fences, and, if believed, faced
Talbot, who was in a firing stance and who possibly fired off
one or more rounds. This was sufficient evidence to put the
question before the jury, who would have been in the best
17
position to determine whether, under the circumstances,
Iacoviello had an opportunity to avoid combat before firing a
weapon. See Commonwealth v. Pike, 428 Mass. at 398-399.
c. Use of reasonable force. "Ordinarily the question how
far a party may properly go in self defense is a question for
the jury, not to be judged of very nicely, but with due regard
to the infirmity of human impulses and passions." Commonwealth
v. Kendrick, 351 Mass. 203, 211 (1966), quoting from Monize
v. Bagaso, 190 Mass. 87, 89 (1906). Here, if it is believed
that Iacoviello found himself faced by Talbot aiming, and
possibly firing, a gun in his direction, that is sufficient to
put the question of the reasonableness of his response to a
jury.
d. Prejudice. "Viewing the facts . . . in their totality
rather than in an isolated movement-by-movement
fashion," Commonwealth v. Barber, 18 Mass. App. Ct. 460, 465
(1984), we conclude that the failure to instruct the jury on
self-defense was error. As the issue was preserved, we review
under the prejudicial error standard. See Commonwealth
v. Flebotte, 417 Mass. 348, 353 (1994), quoting
from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983)
(error is not prejudicial only if we are "sure that the error
did not influence the jury, or had but very slight effect").
The events behind Revere High School on September 29, 2007,
18
unfolded rapidly, in the dark, late at night, among individuals
who were all intoxicated. The jury rejected the theory of
deliberately premeditated murder. Had they chosen to believe
the evidence supporting self-defense, the jury also could have
acquitted Iacoviello altogether on the murder charge, and, as a
direct result, James on the charge of accessory after the fact.
The error was thus prejudicial.
3. Absence of jury instructions on manslaughter. "If any
view of the evidence in a case would permit a verdict of
manslaughter rather than murder, a manslaughter charge should be
given." Commonwealth v. Brooks, 422 Mass. 574, 578 (1996).
Once again, in assessing whether manslaughter instructions were
warranted, we consider the evidence in the light most favorable
to the defendant. Commonwealth v. Groome, 435 Mass. 201, 220
(2001). Iacoviello maintains that a voluntary manslaughter
instruction was warranted based on theories of excessive use of
force in self-defense and reasonable provocation upon sudden
combat. He also maintains that an involuntary manslaughter
instruction was warranted on theories of wanton or reckless
conduct in the firing of his weapon, claiming that there was
minimal evidence that he was intentionally aiming at Talbot's
group and that intoxication impaired his mental processes.
a. Voluntary manslaughter. Voluntary manslaughter is an
unlawful killing "arising not from malice, but 'from . . .
19
sudden passion induced by reasonable provocation, sudden combat,
or excessive force in self-defense.'" Commonwealth v. Carrion,
407 Mass. 263, 267 (1990), quoting from Commonwealth v. Nardone,
406 Mass. 123, 130-131 (1989).
i. Excessive force in self-defense. As noted in our
discussion of self-defense, supra, the extent to which one who
is threatened may go in defending himself is ordinarily a
"question[] of fact for the jury, to be decided in light of all
of the existing circumstances." Commonwealth v. Shaffer, 367
Mass. 508, 512 (1975). Just as we are of the opinion that the
jury should have been permitted to determine whether the
shooting of Talbot was committed in self-defense and was
therefore excusable, we are of the opinion that the jury should
have been permitted to determine whether the shooting was
committed through the use of excessive force in self-defense so
as to mitigate the crime from murder to manslaughter. As with
our conclusion regarding the absence of a self-defense
instruction, this error was prejudicial.
ii. Reasonable provocation. Reasonable provocation is
provocation that "would have been likely to produce in an
ordinary person such a state of passion, anger, fear, fright, or
nervous excitement as would eclipse his capacity for reflection
or restraint." Commonwealth v. Walden, 380 Mass. 724, 728
(1980). Such an instruction is warranted "if there is evidence
20
of provocation deemed adequate in law to cause the accused to
lose his self-control in the heat of passion, and if the killing
followed the provocation before sufficient time had elapsed for
the accused's temper to cool." Commonwealth v. Andrade, 422
Mass. 236, 237 (1996), quoting from Commonwealth v. Schnopps,
383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984). The
defendant's actions must be "both objectively and subjectively
reasonable. That is, the jury must be able to infer that a
reasonable person would have become sufficiently provoked and
would not have 'cooled off' by the time of the homicide, and
that in fact a defendant was provoked and did not cool
off." Commonwealth v. Groome, 435 Mass. at 220, quoting
from Commonwealth v. McLeod, 394 Mass. 727, 738, cert. denied
sub nom. Aiello v. Massachusetts, 474 U.S. 919 (1985).
As noted above, it can be inferred from the evidence,
viewed in the light most favorable to Iacoviello, that when
Iacoviello entered the scene near Soto's truck, he found himself
facing Talbot, who was in a firing stance, aiming a gun in
Iacoviello's direction, and possibly even firing at him. From
an objective standpoint, it is hard to imagine that this would
not have produced in an ordinary person such a state of passion,
anger, fear, fright, or nervous excitement as to override such a
person's capacity to reflect and might cause that person to fire
back in Talbot's direction.
21
The law, however, also requires subjective evidence that
Iacoviello actually did lose control in a heat of passion,
thereby leading him to immediately fire his weapon back at
Talbot. The Supreme Judicial Court has stated that "[t]he
theory of self-defense does not 'automatically' incorporate a
theory of reasonable provocation; for example, a provocation
instruction is not appropriate when a defendant claims to have
acted in self-defense but presents no evidence about his
emotional state, or when a defendant argues self-defense but
denies experiencing strong feelings of passion, anger, fear,
fright, or nervous excitement." Commonwealth v. Acevedo, 446
Mass. 435, 448 (2006). See Commonwealth v. Glover, 459 Mass.
836, 841-842 (2011) ("Voluntary manslaughter on a theory of
reasonable provocation is closely related to voluntary
manslaughter on a theory of excessive use of force in self-
defense. . . . But the two theories are also distinct, and
evidence may support one but not the other"). Evidence may
establish that a defendant acted in self-defense based on a
"calculus of survival," not because he was blinded by a heat of
passion based on reasonable provocation, and in such cases an
instruction on reasonable provocation is not warranted. See,
e.g., Commonwealth v. Vinton, 432 Mass. 180, 189 (2000)
(provocation instruction not warranted where defendant's
"argument is based on asserting [his] calculus of survival, not
22
any blindness of heat of passion on reasonable
provocation"); Commonwealth v. Colon, 449 Mass. 207, 222, cert.
denied, 552 U.S. 1079 (2007) (defendant, who focused his case on
self-defense and "testified that he shot the victim because he
had been told that the victim was armed and he thought he 'was
going for a gun,'" acted based on calculus of survival, not
blindness brought on by heat of passion on reasonable
provocation). Here, the evidence, when viewed in the light most
favorable to Iacoviello, raises a reasonable doubt as to whether
he acted in self-defense based on his calculus of survival.
b. Involuntary manslaughter. "[W]here a defendant is
charged with murder, an instruction on involuntary manslaughter
is appropriate if any 'reasonable view of the evidence would
[permit] the jury to find "wanton [or] reckless" conduct rather
than actions from which a "plain and strong likelihood" of death
would follow.'" Commonwealth v. Tavares, 471 Mass. 430, 438
(2015), quoting from Commonwealth v. Braley, 449 Mass. 316, 331
(2007). 12 If an involuntary manslaughter instruction is
required, evidence of intoxication can be considered by the jury
12
"Wanton or reckless conduct is 'intentional conduct, by
way either of commission or of omission where there is a duty to
act, which conduct involves a high degree of likelihood that
substantial harm will result to another.' Commonwealth v.
Welansky, 316 Mass. 383, 399 (1944). The degree of risk of
physical harm for involuntary manslaughter is thus 'a high
degree of likelihood' of 'substantial harm,' whereas for third
prong malice there must be a 'plain and strong likelihood of
death.'" Commonwealth v. Earle, 458 Mass. 341, 347 (2010).
23
in connection with whether the defendant knew, or should have
known, that his conduct created a high degree of likelihood that
13
substantial harm would result to another. See Commonwealth
v. Flynn, 37 Mass. App. Ct. 550, 555-556 (1995) (evidence of
voluntary intoxication is factor whenever Commonwealth bears
burden of establishing knowledge of defendant, as in case of
involuntary manslaughter on theory of wanton or reckless
conduct).
i. Wanton or reckless conduct. "The likelihood of death
ensuing when a loaded weapon is aimed at a person or group of
people and then intentionally discharged is plain and strong
indeed." Commonwealth v. Alebord, 68 Mass. App. Ct. 1, 7
(2006). We preface our discussion by noting that there was
sufficient evidence from which a jury could reasonably infer
that Iacoviello pointed a loaded gun in the direction of the
Talbot group. In viewing the evidence in the light most
favorable to Iacoviello and drawing all reasonable inferences in
his favor, however, we cannot ignore that there were also other
reasonable inferences that could have been drawn.
13
Even where there is evidence of intoxication, the
evidence must warrant an instruction on involuntary manslaughter
before an instruction on intoxication is given. See
Commonwealth v. Sires, 413 Mass. 292, 302-303 (1992);
Commonwealth v. Ferreira, 417 Mass. 592, 599 (1994).
24
With the exception of an alleged jail house confession, 14
there was no direct testimony that Iacoviello pointed the nine
millimeter Luger at Talbot or the Talbot group. No one from the
Talbot group could specifically testify that they witnessed a
gun in Iacoviello's hands. Meanwhile, Papandrea testified at
trial that he heard two "bangs" and saw a flash coming from
slightly behind him to his side, at which point he turned and
saw Iacoviello "with the gun in his hand . . . pointing it." He
also had previously stated that Iacoviello only drew and fired
the gun after being fired on by the Talbot group. Johnny
testified that he heard a shot go off behind his right shoulder,
at which point he saw a guy from the other group "drop." Then,
after shots were fired back, he ducked and turned to run,
whereupon he saw Iacoviello shoot the nine millimeter Luger two
times in the air. A little more than one and one-half days
later, two (not three) spent nine millimeter casings were
located at the scene, along with a fresh abrasion overhead on
the branch of a tree. Finally, Johnny testified at trial that
his group only brought the gun with them to the high school to
scare the other group.
14
At trial, the Commonwealth called Randy Furtado, who
testified in exchange for a reduction in a plea recommendation,
that Iacoviello had confided in him when the two shared a cell
at the Dartmouth house of correction for a few days in May,
2008. Furtado testified that Iacoviello admitted that he shot
Talbot and demonstrated this to Furtado by holding his hands
straight out in front of him.
25
Where there is evidence that the defendant was not pointing
or aiming a gun at the victim, but rather was aiming in the air
or at the ground, an involuntary manslaughter instruction based
on a theory of wanton or reckless conduct is warranted. See,
e.g., Commonwealth v. Ferrara, 368 Mass. 182, 190 (1975)
(inference of involuntary manslaughter was warranted where
witness testified that he did not think defendants were aiming
rifle at victim); Commonwealth v. Greaves, 27 Mass. App. Ct.
590, 594 (1989) (upholding reduction of jury verdict to
manslaughter where judge believed "the evidence that the
defendant was a considerable distance away from the building
when he shot the rifle and that he was aiming at the roof").
The same has been true where there has been evidence that a
defendant engaged in wanton or reckless conduct for the purpose
of scaring, not shooting, a victim. See Commonwealth
v. Martinez, 393 Mass. 612, 614 (1985) (instruction on
involuntary manslaughter warranted where "the jury could have
found that defendant threw a lighted newspaper at one of the
victims intending no more than to frighten or upset the
victim"). As there was evidence here from which a jury
reasonably could have inferred both that Iacoviello brought the
gun to the high school for the purpose of scaring what turned
out to be the Talbot group and that he did not aim the gun at
the Talbot group once he arrived, an involuntary manslaughter
26
instruction was warranted. Given the obvious consequences to
Iacoviello, the failure to give such an instruction was
prejudicial.
ii. Intoxication. Having determined that an involuntary
manslaughter instruction was warranted, we need not labor long
in determining that an accompanying instruction on intoxication
was warranted as well. There was evidence that Iacoviello had
been drinking heavily in the hours before the encounter and that
he was intoxicated. In fact, the trial judge instructed the
jury that they should consider any credible evidence of the
effect on Iacoviello of his consumption of alcohol and drugs in
determining whether the Commonwealth met its burden of proof
with respect to the issues of intent, knowledge, and deliberate
premeditation. It follows that a similar instruction would be
warranted in connection with an involuntary manslaughter
instruction.
4. Adjutant evidence. Iacoviello contends that the judge
abused his discretion when he excluded Iacoviello's proffer of
evidence of a prior incident, on October 31, 2006, where Talbot,
while on duty, discharged his firearm nine times at James
Bombard, whom Talbot and other Revere police officers were
attempting to apprehend for allegedly assaulting some
individuals at knife point. Contemporaneous reports from other
Revere police officers reflect that Talbot stated at the time
27
that after identifying himself as a police officer and drawing
his firearm, he was forced to shoot because Bombard charged him
with a knife. Iacoviello intended to call two police officers
and Bombard as witnesses. Bombard reportedly would testify that
he came around a corner and saw an unidentified individual
pointing a gun at him. Bombard turned and ran, at which point
the person shot at him multiple times. Bombard also would have
reportedly testified that he never pulled a knife on that
individual and that the individual, who was in civilian clothes,
never identified himself as a police officer. Not one of the
nine shots hit Bombard. The Commonwealth, in turn, indicated
that it would need to call numerous witnesses if evidence of the
Bombard incident was admitted, including other responding police
officers and the individuals Bombard had reportedly assaulted.
"'[W]here the identity of the first aggressor is in dispute
and the victim has a history of violence, . . . the trial judge
has the discretion to admit evidence of specific acts of prior
violent conduct that the victim is reasonably alleged to have
initiated, to support the defendant's claim of self-defense,'
regardless whether the defendant knew of the victim's prior
violent acts." Commonwealth v. Chambers, 465 Mass. 520, 527
(2013), quoting from Commonwealth v. Adjutant, 443 Mass. 649,
664 (2005). "[S]uch evidence 'may be admitted as tending to
prove that the victim and not the defendant was likely to have
28
been the "first aggressor"' because it may show 'that the victim
acted in conformance with his character for violence.'" Ibid.,
quoting from Commonwealth v. Adjutant, supra. This type of
evidence is referred to as Adjutant evidence.
Here, the judge denied Iacoviello's proffered evidence
because (1) the judge believed that the fact that Talbot was
acting in his capacity as a police officer during the prior
incident with Bombard differentiated it from the type of
evidence envisioned as admissible under Adjutant, and (2) the
facts of the Bombard incident were disputed, thereby requiring
the testimony of numerous witnesses and a trial within a trial.
It was also clear, however, that the judge's decision was
affected by his ongoing skepticism regarding the predicate issue
of the viability of Iacoviello's claim of self-defense. Having
concluded that a self-defense instruction was warranted, we
leave it for the judge at a new trial to reconsider whether the
proffered Adjutant evidence should be admitted.
5. Consanguinity. Because we are vacating Iacoviello's
conviction of murder in the second degree, we must, by
necessity, also vacate James's conviction of accessory after the
fact. See parts 2 and 3, supra. See also note 16, infra. We
address James's argument concerning the defense of
consanguinity, which is likely to arise in the event of a
retrial.
29
James contends that the trial judge committed prejudicial
error by refusing to allow him to assert a defense of
consanguinity to the charge of accessory after the fact. See
G. L. c. 274, § 4. We disagree but conclude that there was a
risk of confusion on the part of the jury that should be avoided
at any new trial. General Laws c. 274, § 4, as appearing in St.
1943, c. 488, § 1, provides, in pertinent part: "Whoever, after
the commission of a felony . . . assists the principal felon
. . . shall be an accessory after the fact. . . . The fact that
the defendant is the husband or wife, or by consanguinity,
affinity or adoption, the parent or grandparent, child or
grandchild, brother or sister of the offender, shall be a
defense to a prosecution under this section."
As we understand James's argument, he believes that his
older brother, Johnny, could have been, like Iacoviello, a
"principal felon" in Talbot's death. Taking the next step,
James maintains that because Johnny could have been a principal
felon and Johnny is his brother, the statutory defense of
consanguinity should have been available to him. In other
words, if the jury found that Johnny could have been a principal
felon and that it was Johnny whom James intended to aid in
avoiding or escaping detention, arrest, trial, or punishment in
connection with Talbot's death, then the statute required the
jury to find James not guilty. James maintains that the jury
30
would have to find him not guilty under those circumstances even
if they found that the aid he rendered also helped Iacoviello. 15
Neither argument is supported by the plain language of G. L.
c. 274, § 4, which provides that the principal felon is the
person or persons whom the Commonwealth alleges, and ultimately
proves beyond a reasonable doubt, 16 committed the underlying
felony. Here, the indictment charging James as an accessory
after the fact identified Iacoviello as the principal felon.
Contrary to the express language of G. L. c. 274, § 4, James is
not related to the principal felon named in the indictment.
There is nothing in this language to suggest that simply because
another individual, who theoretically could have been charged as
a principal felon, is related by consanguinity to the defendant,
15
James requested the following instruction regarding the
consanguinity issue:
"It is absolutely necessary that you find beyond a
reasonable doubt that the defendant specifically intended
to aid Iacoviello and not his brother Johnny Heang. This
is so because the statute involved also provides an
affirmative . . . defense to one who aids a family member.
Therefore, if you find that the defendant was rendering aid
to his brother, Johnny Heang and this aid also helped the
defendant, Iacoviello, you must find the defendant not
guilty."
16
To convict someone as an accessory after the fact, "it
[is] necessary to prove beyond a reasonable doubt that . . . the
alleged principal . . . was guilty." Commonwealth v. Borans,
379 Mass. 117, 148 (1979), quoting from Commonwealth v.
Reynolds, 338 Mass. 130, 135 (1958).
31
that the defendant cannot be charged, convicted, or punished for
aiding the principal felon identified in the indictment.
As for his second argument, we agree with the judge that it
is foreclosed by the decision in Commonwealth v. Doherty, 353
Mass. 197 (1967). Here, the fact that the same acts also might
have assisted his brother Johnny does not preclude James's
conviction under the indictment charging him with aiding
Iacoviello. Id. at 205. The judge did not err in denying
James's requests to raise, and instruct the jury on, the
statutory defense of consanguinity.
We note that, notwithstanding the unavailability of the
statutory defense of consanguinity, nothing prevented James from
arguing that he intended to aid his brother Johnny, and not
Iacoviello, as a defense to the accessory after the fact charge.
His right to raise such a defense, however, would not have been
predicated on his consanguinity with Johnny. Rather, it would
have been legally predicated on the fact that Johnny was not the
principal felon the Commonwealth alleged James was aiding in the
specific accessory after the fact charge before the court.
The instruction the trial judge gave the jury here on the
accessory after the fact charge focused on whether James
intended to, and did, aid Iacoviello:
"In order to prove the defendant James Heang guilty of this
crime, the Commonwealth must prove four elements -- four
elements -- beyond a reasonable doubt; first, that Robert
32
Iacoviello -- Robert Iacoviello -- is guilty of the crime
which James Heang is accused of having aided, namely, the
murder of Daniel Talbot; second, that the defendant James
Heang assisted the perpetrator of the murder of Daniel
Talbot, allegedly, Robert Iacoviello, following the
commission of the crime; third, that the defendant James
Heang provided such assistance with the specific intent --
the specific intent -- that the perpetrator, allegedly,
Robert Iacoviello, avoid or escape arrest, detention, or
prosecution; fourth, and finally, that the defendant James
Heang rendered such assistance with knowledge of the
identity of that perpetrator and of the substantial facts
of the killing of Daniel Talbot."
This instruction was essentially proper. In a case like the
present one, however, where the facts reasonably suggest that a
defendant could have intended to aid someone other than the
named principal felon, we think that additional instructions on
the intent element are warranted. In particular, additional
instructions should focus on whether the defendant provided aid
to assist the named principal felon or whether the defendant's
specific intent was to aid someone other than the named
principal felon.
6. Conclusion. On the indictment charging Iacoviello with
murder, the judgment is vacated and the verdict is set aside.
On the indictment charging James Heang with accessory after the
fact, the judgment is vacated and the verdict is set aside. The
judgments are otherwise affirmed. 17
17
To the extent that we have not addressed other points
made by the parties, they "have not been overlooked."
33
So ordered.
Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389
(2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78
(1954). We have considered them and found them to be without
merit.