Citation Numbers: 448 Mass. 718, 863 N.E.2d 936, 2007 Mass. LEXIS 195
Judges: Marshall
Filed Date: 4/10/2007
Status: Precedential
Modified Date: 10/18/2024
In the early morning of April 12, 2003, the defendant, Alexander Pring-Wilson, became entangled in a fight with Michael Colono and Samuel Rodriguez outside a pizza restaurant in Cambridge. During the brawl, the defendant stabbed Colono, who later died. The defendant was indicted and tried on a charge of murder in the first degree.
The central issue at trial was whether the defendant acted in self-defense. To support his theory that Colono or Rodriguez started the fight, the defendant sought to introduce evidence of each man’s prior violent behavior. At the time of trial, the law of self-defense in Massachusetts permitted a defendant knowledgeable about the victim’s violent character to introduce evidence of the victim’s specific violent acts or reputation for violence to demonstrate the defendant’s reasonable apprehension for his or her safety. See, e.g., Commonwealth v. Fontes, 396 Mass. 733, 735-736 (1986); Commonwealth v. Edmonds, 365 Mass. 496, 501-502 (1974). But the law did not permit a defendant unaware of the victim’s violent propensity to introduce evidence of that propensity to show who was the first aggressor. See, e.g., Commonwealth v. Graham, 431 Mass. 282, 291 (2000), and cases cited. Here, the defendant knew nothing of the violent histories of Colono or Rodriguez, who were strangers to him, and the trial judge disallowed the defendant’s repeated attempts to introduce evidence of Colono or Rodriguez’s violent pasts to demonstrate that either had a violent character.
The jury convicted the defendant of voluntary manslaughter.
While the record was being assembled for appeal, we decided Commonwealth v. Adjutant, 443 Mass. 649 (2005) (Adjutant). There we held that “where the identity of the first aggressor is in dispute and the victim has a history of violence,” the judge
Within days of our deciding Adjutant, the judge here (who coincidentally had also been the trial judge in Adjutant) scheduled a hearing “to determine whether the conviction of the defendant should be vacated and a new trial ordered on the grounds that, although the court views the evidence as legally sufficient to support the verdict returned by the jury, the integrity of the evidence has been rendered suspect as a result of the decision of the Supreme Judicial Court in [Adjutant].” She also solicited legal memoranda from the parties. The defendant moved for a new trial, citing Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979), which the Commonwealth opposed.
After a hearing, the judge issued a thoughtful memorandum of decision and order, allowing the defendant’s motion, vacating his conviction, and ordering a new trial. She concluded, in the exercise of her broad discretion under role 25 (b) (2), that the integrity of the defendant’s trial was compromised by his inability to introduce evidence of the violent pasts of Colono and Rodriguez. She further concluded that, like the defendant in Adjutant, this defendant was entitled to a new trial because the propensity evidence he had sought to introduce was probative of the main issue in the case: the identity of the first aggressor. Having moved unsuccessfully for reconsideration, the Commonwealth appealed. We granted the Commonwealth’s application for direct appellate review. We now affirm the judge’s order granting the defendant ¿ new trial.
1. Background. A consideration of the facts in evidence, as well as the facts excluded by the judge, is necessary for resolu
a. The evidence at trial, i. Events preceding the fight. During the evening of April 11, 2003, Rodriguez was visiting his mother’s apartment in Lynn with his girl friend, Giselle Abreu. The two planned to join Colono (Rodriguez’s cousin) and go to a bar in Somerville. Before leaving Lynn for the evening, Rodriguez and Abreu had an argument. At trial, each claimed the argument was only oral, but a percipient witness, Shawn Bates, testified that he saw Rodriguez beat Abreu. Bates telephoned the police, and the responding officers briefly questioned Rodriguez and Abreu. The incident unnerved Rodriguez and delayed the couple’s outing — midnight came and went before they left to pick up Colono.
They drove Rodriguez’s mother’s automobile, a Chevrolet four-door sedan, taking with them a six-pack of beer and one half-pint bottle of brandy that Rodriguez had purchased for Colono; Rodriguez was twenty-one years of age at the time, and Colono was eighteen years of age. Earlier in the evening, Rodriguez had consumed some beer and whiskey. On their way to Colono’s apartment in Cambridge, Rodriguez drove, but after collecting Colono, Rodriguez switched seats with Abreu. Rodriguez did not have a driver’s license, and although Abreu also had no license, Rodriguez thought that it would be less likely that the police would stop the automobile if a woman was driving. Rodriguez sat in the front passenger seat with Abreu while Colono sat in the back seat.
The three decided to go to the Pizza Ring restaurant on Western Avenue. Abreu stopped in front of the restaurant. Rodriguez went inside and placed an order, then returned to the automobile, and the three waited until the pizza was ready. As they waited, Colono drank a couple of beers.
While the preceding events were unfolding, the following events were simultaneously transpiring. At about 9:30 p.m. on April 11, the defendant met a friend, Jennifer Hansen, and her friend at a diner in Davis Square. While there, the defendant drank a couple of whiskeys with soda. After about forty-five minutes, the three went to a nearby pub. There, the defendant
Hansen and her friend took a cab home, while the defendant began walking to his home, along Western Avenue. His route took him toward the Pizza Ring where Colono, Rodriguez, and Abreu were waiting in the automobile for their pizza. As he approached the Pizza Ring, the defendant was talking on his cellular telephone to his girl friend, Janice Olmstead. Shortly thereafter, the fight occurred between the defendant on the one hand, and Colono and Rodriguez on the other.
ii. The fight. From the perspective of Rodriguez and Abreu, the fight happened as follows. As the defendant approached their automobile, he was talking on his cellular telephone and appeared to be intoxicated and stumbling. Colono said, “Look at this dude walking down the street,” and everyone in the automobile began laughing. Colono’s window was open, and as the defendant passed, Colono either said that the defendant was “shitfaced” (Abreu’s version) or told the defendant, “Get off the street” or “Get off the street, shitface” (Rodriguez’s versions). Shortly after the defendant passed the automobile, he ended his telephone conversation, turned around, and came back to Colono’s window. Rodriguez said to his cohorts that the defendant had “a lot of nerve” coming back to the automobile. The defendant leaned down, looked in the window, and asked Colono either, “Were you talking to me?” (Rodriguez’s version), or “Excuse me. Did you say something?” (Abreu’s version).
Rodriguez put up his fists and asked whether the defendant was “ready for a piece of” him, to which the defendant replied, “Yes.” Rodriguez then opened his hands to show he was carrying no weapon, said the fight was over, and got back into the front passenger seat of the automobile. Thinking the defendant would telephone the police, and wanting to avoid having to explain to the authorities what had happened (and concerned about the presence of alcohol in the automobile and that Abreu was driving without a driver’s license), Abreu and her companions drove away.
The defendant’s version of the fight differed markedly from
“[T]he worst was the guy in the back. He just kept on pounding me, like pow, like lights go out, come back in. It’s like not just stars. It’s like everything goes out and then everything comes back in. And it was just like over, and over, and over. And it was like that fast. . . .
“I was thinking: What is going to stop these guys? Like they already had me down. . . . [Tjhere’s nothing to stop these guys. Who is going to stop them? There’s nobody on the street. There’s nothing going on. . . . [A]re they going to know to stop before I’m dead? Are they going to stop when I’m unconscious? ....
“[T]he only thing I can think of is like: Okay, okay, okay. Get your knife out, get your knife out. Get them away from you. . . . I’m scrambling. There’s still hits like this [indicating] from above . . . like a pile driver ... it just keeps going .... I pulled my knife out of my pocket,*725 and then I opened it up, and the next image I have is . . . looking at it .. . . And I’m like: All right. It’s going to get them away. It’s going to get them away.”
The defendant then stabbed and slashed upward with the knife, trying to get the man in front of him away so that he could escape. Although he knew he had made contact with the man, he did not think that the man was seriously injured: when the defendant was up and stumbled away, both assailants “bolted” to the automobile. The defendant, thinking the men were “going for something big, like to take me down,” scrambled for his telephone, hoping the men would think he was dialing 911 and leave. The men and Abreu then drove away.
iii. Aftermath of the fight. On leaving the scene, Rodriguez discovered that Colono had been stabbed. The driver stopped at a convenience store to look for a public telephone.
Rodriguez told the police that he had picked up Colono at the Pizza Ring and that when Colono entered the automobile, he “keeled over in the back seat.” Rodriguez denied witnessing a fight. He also said that Colono had told him he had been “jumped” and stabbed by “a bunch of white guys,” and that Colono had “fucked up this drunk white dude.” Abreu corroborated Rodriguez’s account, telling the police that, while she and Rodriguez were driving down Western Avenue, they discovered Colono enmeshed in a fight with a white man, that
Rodriguez’s brother drove Rodriguez and Abreu to the hospital where Colono had been taken; the automobile in which they had been driving had been impounded. At about 3:15 a.m., Colono died. The cause of his death was multiple stab wounds. At the hospital, the alcohol content of Colono’s blood measured .082 per cent.
While those events involving Colono and his cohorts were transpiring, other developments were taking place concerning the defendant. Shortly after the fight, at about 1:56 a.m., the defendant dialed 911 and reported that he had “witnessed a young man getting stabbed.” He told the 911 operator his location and, when asked whether the victim was with him, said, “No, sir. I just saw it happen. I’m, I’m just a fucking bystander, sir.” When asked about the attacker, the defendant said, “Some guy came out of a car in a fucking black jacket, stabbed this other guy. So the guy, he just screamed, ‘I’ve been stabbed,’ and that was it.”
Shortly thereafter, a police officer responded to the scene and the defendant told him that he had seen a stabbing down the street, and that both the victim and the perpetrators had run away in the same direction. As the officer left to look for the victim and assailants, another officer took over questioning the defendant. The defendant told that officer that he had seen multiple attackers assault a “kid”; the defendant also mentioned something about a stabbing but said he was confused. The defendant had a welt on his forehead and, while rubbing it, claimed he had been injured while trying to help the victim. He told another officer at the scene conflicting stories: first, that no one had been stabbed but, later, that someone had been stabbed and that the defendant had intervened because he had a penknife. The defendant denied needing medical treatment and, after giving the authorities his identification information, was allowed to
At 2:41 a.m., the defendant left a message on Hansen’s cellular telephone, which was played to the jury:
“Hey, Jen. How’s it going? I just, um, I got attacked. I just got attacked by a group, um — . I fended them off, [inaudible] ha ha. I stabbed him a couple of times and — don’t repeat this to police, um, but, yeah. I’ve got a fucking killer headache. I just walked a couple miles home. I think I’ve got a concussion. Um, anyway, I had a swell time tonight. I hope you guys, um, made it home . . . okay. Bye-bye.”8
Several hours later, two police officers went to the defendant’s apartment and took him to the Cambridge police station for questioning. The defendant felt “beat up,” his jaw and face hurt, he had a “nasty total-body kind of ache,” and he had a headache similar to when he had sustained concussions in the past from playing rugby.
At the station, the defendant (after waiving his Miranda
After the defendant gave that statement, a third police officer informed the defendant that Colono had died. The defendant responded, “I’m sorry, sir. I’m sorry, sir. I lied to those guys,” meaning (according to the defendant) that he had lied to the other officers about how the fight had happened and about having been “really drunk.”
After he was booked, the defendant complained of a headache and an emergency medical technician (EMT) took him to Cambridge City Hospital. He told the EMT that he had been punched in the head; that, after the incident, his vision was spotty; that he had a history of concussions; and that he believed he might have sustained a concussion from the fight. At the hospital, he told a physician that he had been kicked and punched, but the physician saw no signs of head or neck trauma. Thereafter, the defendant was taken back to jail.
The following day, the defendant returned to the hospital, complaining of a headache, nausea, dizziness, and vomiting. During that visit, the defendant told the same physician he had seen the previous day that he had been struck in the head with a fist or blunt object and had lost consciousness for several seconds. The physician again concluded that there were no signs of head injury. The symptoms that the defendant reported
Another physician, Dr. Jeremy Schmahmann, had not examined the defendant but, based on reviews of the defendant’s medical history and the testimony of the medical and police personnel who had interviewed the defendant after the fight, concluded that the defendant’s symptoms were consistent with a concussion. He also testified that the physician who had examined the defendant at Cambridge City Hospital did not perform all of the possible tests used to diagnose a concussion. Finally, Dr. Schmahmann explained that fatal trauma can be caused by being beaten in the head with fists or by being kicked in the head.
We now summarize the evidence proffered by the defendant that was excluded by the judge at trial.
b. Evidence of violent histories of Colono and Rodriguez. Based on the defendant’s witness list, which included numerous people who had knowledge of Colono and Rodriguez’s violent backgrounds, the Commonwealth filed a pretrial motion in limine to prevent the defendant from introducing any evidence to show that either Colono or Rodriguez had violent propensities.
Once the trial was under way, defense counsel, while cross-examining Rodriguez, sought to explore whether Colono had violent tendencies — counsel elicited from Rodriguez that Colono was “hot headed,” and counsel asked Rodriguez whether Colono “would make comments to people, and then there would be trouble.” The prosecutor objected, and during a sidebar discussion defense counsel claimed that his line of questioning was relevant to Colono and Rodriguez’s states of mind, and who during the fight “instantly” had the “upper hand.” The prosecutor complained that the evidence sought to be elicited was inadmissible prior bad acts evidence for propensity purposes. The judge allowed defense counsel limited questioning regarding Rodriguez’s state of mind. Defense counsel’s subsequent questioning
Later during cross-examination of Rodriguez, defense counsel made an offer of proof, seeking permission to introduce evidence that Rodriguez had told a defense investigator that Colono had never lost a fight except one with his brother. Counsel called the matter “critical in this case,” saying that it related to “[w]ho was the first aggressor ... the believability of whether [the victim] would wait for [the defendant] to open the door to the car before flying out.” Counsel also sought to explore Colono’s “street fighting ability as compared to [the defendant’s].” “[T]he issue is who started it, whether [the defendant] was the initial aggressor, whether [the victim] was, whether it’s reasonable to assume that given that it started as a fight that [the defendant] immediately had the upper hand.” The prosecutor again complained that counsel was attempting to introduce improper propensity evidence, and the judge did not allow counsel to introduce evidence regarding Colono’s fighting abilities.
Finally, shortly before defense counsel cross-examined Rodriguez’s brother, the prosecutor complained that counsel wished to pursue a line of questioning regarding whether Rodriguez and Colono “grew up fighting.” The judge concluded: “History of combative prior acts of combat or fighting? That’s not coming in. Characterizations are not coming in.”
We turn now to consider the legal claims on appeal.
2. Propriety of the Commonwealth’s appeal. The defendant has moved to dismiss the Commonwealth’s appeal, arguing that no appeal lies from the allowance of a motion for a new trial under Mass. R. Crim. P. 25 (b) (2). To be sure, the defendant cited rule 25 (b) (2) in his motion for a new trial, and the judge cited that rule in her decision. But the substance of the motion was more in the nature of one filed under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). Rather than claiming that the verdict was against the weight of the evidence, the defendant challenged the fairness of the trial on the ground that he was unable to introduce evidence relevant to his self-defense theory. See Commonwealth v. Preston, 393 Mass. 318, 322-324
3. Propriety of the order granting the defendant a new trial. A judge may grant a new trial under rule 30 (b) “at any time if it appears that justice may not have been done.”
The relevant law concerning self-defense is as follows. “[T]he right of self-defense ordinarily cannot be claimed by a person who provokes or initiates an assault unless that person withdraws in good faith from the conflict and announces his intention to retire.” Commonwealth v. Maguire, 375 Mass. 768, 772 (1978). Even if a defendant does not initiate the fight (or withdraws after initiating it), where he uses deadly force — as the defendant did here by stabbing Colono with a knife, see Commonwealth v. Toon, 55 Mass. App. Ct. 642, 644 n.3 (2002) — tibie defendant is not entitled to an instruction on self-defense unless there is “evidence warranting at least a reasonable doubt” that he “(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.”
We now apply those legal principles to this case. The identity of the first aggressor was hotly contested at trial. In her opening statement, the prosecutor repeatedly asserted that, when the defendant approached the automobile, he had his knife “ready”; that the defendant opened the automobile door; and that Abreu, Rodriguez, and Colono drove away after the fight because they did not want the police to blame them “for what [the defendant]
During the presentation of the evidence, the prosecutor specifically elicited testimony from Rodriguez and Abreu to substantiate the idea that the defendant had started the fight, while defense counsel specifically elicited testimony from the defendant to support the notion that Rodriguez or Colono had started it. And in closing argument, each party emphasized its view of how the fight began: the prosecutor repeatedly said that the defendant became the aggressor by opening the automobile door, while defense counsel reiterated his theme that the defendant had acted in self-defense.
The Commonwealth argues that, questions of first aggressor aside, the defendant’s self-defense theory necessarily fails — i.e., that he was not entitled to a jury instruction on self-defense — because the jury could not, as a matter of law, have formed a reasonable doubt concerning any of the three Harrington factors discussed earlier. We disagree. Under the defendant’s version of the fight — which we must accept for purposes of examining whether he was entitled to an instruction on self-defense, see Commonwealth v. Pike, supra — one of the men “came right out” of the automobile and punched him; the defendant tried to stop the assailant but a second man immediately joined the fight, hitting the defendant from behind; the next thing he knew, the defendant was on the ground trying to cover his head; Colono and Rodriguez were of comparable size and weight to the defendant, and Rodriguez was muscular and worked as a bouncer; the defendant was being “pound[ed] . . . over, and over, and over”; nobody else was present to help the defendant; he thought he could not escape the beating and thought his assailants were going to beat him unconscious or kill him; he used his knife in order to get the assailants away from him; he suffered a welt on his forehead and his face was swollen; and a medical expert testified that the defendant’s symptoms following the fight were consistent with a concussion, and that fatal trauma can be caused by being beaten in the head with fists.
Because the evidence allowed the jury to form a reasonable doubt about each of the Harrington prerequisites for self-defense, the question of who was the first aggressor — the threshold prerequisite for self-defense — was key. Thus, we now consider how the defendant and the judge addressed that question.
Havmg carefully reviewed the record, it is apparent that the defendant sought, albeit unsuccessfully, to capitalize on evidence of Colono and Rodriguez’s violent pasts for purposes of establisMng that one or the other was the first aggressor. To support Ms self-defense theory, the defendant assembled a list of witnesses who had knowledge of numerous prior violent acts of Colono and Rodriguez. See note 12, supra. He also attempted at various turns during trial (set forth in detail above) to introduce evidence of Colono and Rodriguez’s fighting Mstories and abilities. The judge, however, prevented him from introducing such evidence. In light of those various attempts by the defendant to introduce evidence of Colono and Rodriguez’s violent predispositions, we reject the Commonwealth’s argument that the defendant failed to raise the matter at trial.
We therefore turn to consider whether the judge abused her discretion in granting the defendant a new trial. After the
Our review of the judge’s decision in tMs case is limited to whether she abused her discretion. See Mass. R. Crim. P. 30 (b). We cannot say that “no conscientious judge, actmg mtelligently, could honestly have taken the view expressed by [her].” Commonwealth v. Candelario, 446 Mass. 847, 858 (2006). The defendant was in the same shoes as Adjutant in that, in both cases, the defendants attempted to introduce evidence of the victims’ violent propensities, and both pursued the matter before their convictions had become final through direct appeals. As m Adjutant, m tMs case the identity of the first aggressor was essential, and the defendant sought aggressively and repeatedly (“every which way,” according to the prosecutor) to introduce
4. Matters to be resolved at retrial, a. Propensity evidence. We leave to the sound discretion of the judge the kinds of evidence of prior violence that she may admit at retrial. See Commonwealth v. Adjutant, supra at 663. As to the victim, Adjutant establishes the appropriate guidance: the judge may admit evidence of Colono’s specific acts of prior violent conduct but may not admit evidence of his general reputation for violence. See id. at 664-665.
As for evidence of Rodriguez’s prior violent acts, we conclude that the same principles should apply to Rodriguez. Although he is not a victim in this case, Rodriguez assisted the victim in the fight. In fact, according to the defendant’s view of the evidence, Rodriguez might have started it. The facts of Adjutant involved an altercation involving only two people — the victim and the defendant. See id. at 650-652. But nothing in Adjutant precludes a judge from admitting evidence of prior acts of violent conduct of a victim’s cohort. Cf. People v. Robinson, 163 Ill. App. 3d 754, 773-774 (1987), and cases cited (discussing use of third-person character evidence to show identity of aggressor). Because Rodriguez played a central role in the fight here, and because the purpose of the Adjutant rule is to give the jury a full picture of the altercation so as to make an informed decision about the identity of the initial aggressor or aggressors (where there is evidence that one or more aggressors jointly initiated the fight with a defendant), evidence of Rodriguez’s specific acts of prior violent conduct is admissible. Before admitting evidence of specific examples of a third party’s violent acts, the judge should determine whether, in the light most favorable to the defendant, the third party was acting in concert with or to assist the victim.
b. Unavailable witness. At trial, the defendant sought to call as a witness Anthony Lewis, who had witnessed the fight between Rodriguez and Abreu at Rodriguez’s mother’s apartment on the night in question. In addition to having purportedly seen Rodriguez beat Abreu, Lewis temporarily secreted Rodriguez in Lewis’s apartment when the police arrived; lied to the police about Rodriguez’s whereabouts; and saw Rodriguez and Abreu sniff cocaine that Rodriguez had brought with him to Lewis’s apartment. Lewis made those allegations in an affidavit, but later claimed that he had signed the affidavit without the advice of counsel. The defendant hoped to elicit from Lewis testimony consistent with the affidavit.
Lewis informed the judge that he wished to invoke his rights under the Fifth Amendment to the United States Constitution, and the judge appointed counsel for him. Following a colloquy with counsel, the judge concluded that Lewis had a valid Fifth Amendment privilege. The defendant then requested that the judge either grant Lewis immunity or admit the statements Lewis had made in his affidavit without Lewis testifying, on the ground that his statements were made against his penal interest. The judge denied both requests.
With respect to Lewis’s invocation of his Fifth Amendment rights, the judge did not inquire whether, despite Lewis’s not having had the advice of counsel, he nonetheless signed the affidavit “freely and voluntarily.” See Commonwealth v. Slonka, 42 Mass. App. Ct. 760, 769 (1997). Accordingly, on retrial, if Lewis again claims a Fifth Amendment privilege, the judge shall hold a hearing to determine whether Lewis “freely and voluntarily” signed the affidavit, thereby “forfeit[ing] his privilege against self-incrimination. ’’ Id. at 769. We thus express no opinion about the admissibility of any statements of Lewis.
So ordered.
The judge instructed the jury on all three theories of voluntary manslaughter as a lesser included offense of murder: reasonable provocation, sudden combat, and the use of excessive force in self-defense.
Even according to Rodriguez, the defendant did not behave angrily or insult Colono.
A fingerprint test of the door handle was inconclusive.
The knife was a folding type with a four-inch blade that could be opened with one hand; it was a model designed for camping and other utility purposes, and the defendant carried and used it often for such purposes.
At trial, several character witnesses, including college classmates, college professors, and friends, testified that the defendant had a reputation for peacefulness when both sober and intoxicated. See Commonwealth v. Belton, 352 Mass. 263, 268, cert. denied, 389 U.S. 872 (1967), quoting Commonwealth v. Nagle, 157 Mass. 554, 554 (1893) (“defendant in a criminal case may put in evidence his general good reputation in regard to the elements of character involved in the commission of the crime charged against him, for the purpose of establishing the improbability of his having done the wrong imputed to him”).
In contrast to Rodriguez and Abreu’s testimony that Abreu was driving the automobile, one bystander testified that the driver was a man.
Rodriguez boasted to his brother that he had “sucker punched” the defendant in the head, that he and Colono had “kicked [the defendant’s] ass,” and that they had “won” the fight. Rodriguez also told his brother that he was concerned about getting arrested after the fight, but he later admitted to investigators that he had been involved in the fight.
Questioned about the recorded message that the jury had just heard, Hansen testified that the defendant’s voice was “extremely slurred,” included “weird pauses,” and was at times “incomprehensible”; she also said that, knowing how the defendant normally sounded when he laughed, the “ha ha” sound on the telephone message was not laughter but was a sort of “guttural” throat sound. As for the defendant’s request that Hansen not telephone the police, the defendant testified that, while he did not remember having contacted Hansen, he was “sure I was afraid that” Hansen would “freak out,” “call the police,” and “get everybody involved,” and the last thing the defendant wanted was to involve his assailants. The defendant denied telling any friends to hide anything from the authorities.
At trial, Olmstead was shown a photograph of the defendant taken after the fight; she testified that the defendant’s face and eyes appeared swollen.
At trial, the defendant explained that, on learning of Colono’s death, he told the police he was “sorry” because he “couldn’t believe it ... it was very shocking. It was very shocking and I felt horrible.”
College classmates who had played rugby with the defendant testified that when the defendant experienced concussions from rugby games, he would complain about dizziness, some vision loss, headache, and confusion; he would slur his words; his speech would become “jumbled,” i.e., the defendant would stop and start in mid-sentence; and he would seem “inappropriate,” i.e., he “giggled” at having been struck in the head.
Witnesses on the defendant’s list had knowledge of the following information. With respect to Colono, his criminal history included convictions of possession of cocaine with intent to distribute and malicious destruction of property. Regarding the latter offense, Colono had tried to leave a restaurant without paying, threw money in the face of a cashier, and kicked the restaurant’s glass front door, shattering it. Colono was also charged with trespassing, in connection with which he had behaved belligerently toward the
During opening statements, defense counsel briefly mentioned Rodriguez’s convictions, without mentioning the facts underlying them. Those convictions were entered in evidence at trial, as was Colono’s drug conviction, but for impeachment purposes only.
Although the defendant cited Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979), in his motion for a new trial, and the judge cited that role in her memorandum of decision, we treat the matter under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), for the reasons discussed above. A judge has similar broad discretion to grant a new trial in the interests of justice under both roles. See Commonwealth v. Doucette, 408 Mass. 454, 455-456 (1990) (judge has discretion under role 25 [b] [2] to grant new trial where integrity of verdict suspect); Commonwealth v. Pope, 392 Mass. 493, 497 (1984) (“In deciding whether to grant a motion for a new trial, the question [under rule 30(b)] whether ‘justice may not have been done’ at trial is left largely to the discretion of the judge who presided over the case”).
The use of excessive force in self-defense can, if the other requisites of self-defense are satisfied, mitigate the killing and reduce it from murder to manslaughter. See Commonwealth v. Toon, 55 Mass. App. Ct. 642, 645 n.4 & 655 n.17 (2002), and cases cited.