Commonwealth v. PeppicelliCommonwealth v. Peppicelli
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The defendants were each indicted for murder in the first degree of David Stivaletta (David S.) in violation of
Background. 1. The crimes. Based on testimony at trial, the jury were entitled to find the following.2 On September 2, 1999, while Timothy Martin was driving in Kenmore Square in Boston, his car was struck from behind by a car driven by Anna Aliano, causing minor damage to both cars. Martin did not know Aliano by name, but he knew that she and her boyfriend, Joseph Pepрicelli (Joseph R), the defendants’ brother, patronized the same gym to which he belonged. An argument ensued as to who was at fault for the accident, which culminated in Martin threatening to kill Aliano and her boyfriend.3
Martin, Luciano, and the three Stivalettas (collectively, the Stivaletta group) walked from North Street to Michelangelo Street, where they believed the defendants lived. Michelangelo Street is a small dead-end street off of Charter Street in the North End. Martin was armed with a “sap stick”4 and an unlicensed .38 caliber revolver. No one else in the group was armed. Upon reaching what he thought was the Peppicelli home, Martin announced himself in the event that anyone was looking for him. Receiving no response, the Stivaletta group walked back to the comer of Charter Street.
Nearing the comer, the Stivaletta group came upon David R, Paul P., and a third man. Paul P. approached the group and asked for Martin to identify himself. Paul P. said words to the effect of, “So you’re the guy that threatened my brother,” and began hitting Martin in the head with his cane. A fistfight ensued. While fighting, Martin heard someone say, “What do you want, some of this?” He looked in the direction of the voice and saw a man waving a gun. When his attention wаs refocused on his fistfight, he heard a gunshot. David P. had shot David S. in the stomach at close range. As David S. fell, he told his son to mn. Scott S. and Luciano fled the scene. Arthur S., engaged in a separate altercation with the defendants’ knife-wielding companion, eventually fled as well.
While this was occurring, Martin ducked behind some cars parked on Charter Street and took out his gun. When Paul P. saw Martin’s drawn gun he said, “Oh, do you want to play like
When the police and emergency medical personnel arrived, they found David S. lying in the street. He was conscious but confused and unable to say more than a few garbled phrases. There were no weapons on or near him. He was taken to the hospital, where he died soon after from the single gunshot wound to his abdomen.
The police found the defendants and a third man, Walter Belmonte, standing nearby with their hands raised. The police recovered from the scene two Clock .40 caliber semiautomatic pistols, four magazines that fit the Clocks, and eighteen spent .40 caliber shell casings. The defendants were the licensed owners of the Clocks.5 Seven shots had been fired by Paul P.’s gun, and eleven by David P.’s gun. The only other firearm recovered by the police was Martin’s .38 caliber revolver, but they found no evidence that it or any unrecovered gun had been fired at the scene.
2. The defense. From the defense witnesses, the following emerged: David P. was armed that day and he carried a gun as a matter of routine; he was unaware of the traffic incident involving Martin and Aliano. David P. and his brother Paul R, who recently had knee surgery and used a cane, were walking to their home in the North End when they saw Martin yelling, “Are you fucking looking for me? Pm fucking Timmy Martin, are you looking for me?” Paul P. said, “Who’s Timmy Martin?”
David P. then saw the Stivaletta group, and what appeared to be a gun in Martin’s right hand. From David P.’s perspective, the Stivaletta group was “rushing at us all at one time,” but he was nonetheless focused on Martin because he saw that Martin had a gun in his hand. When Martin started to raise the gun, David P. yelled “Paul, gun,” in order to warn his brother. Paul P. slapped Martin’s hand, which hеld the gun, and began swinging the cane at him. David P. then saw “a hand come up from the back” of
After being shot, David S. walked a short distance and appeared to hand something to Scott S.,6 who then ran away with Luciano. David P. approached David S. with his gun in a “safe position” and demanded to know where David S.’s gun was; David S. reportedly replied that he no longer had it. The defendants yelled for someone to call 911. Within a few moments, David P. saw Martin behind the parked cars with a gun. Martin fired a shot at Paul P, and both defendants returned fire toward Martin before Martin fled. Upon hearing sirens, the defendants unloaded their guns and placed them on a nearby table, raised their hands in the air, and waited for the police to arrive.7
3. The removal of the deliberating juror.8 On a Monday, the trial judge dismissed a deliberating juror one week after deliberations had begun. On the previous Friday, the jury had reported reaching verdicts on four оf the indictments, but they were deadlocked on the remaining six counts. The judge delivered a TueyRodriquez instruction, see Commonwealth v. Tuey, 8 Cush. 1, 2-3 (1851); Commonwealth v. Rodriquez, 364 Mass. 87, 101-102 (1973), and deliberations resumed. No further progress was made by the end of the day, and the jury were sent home for the weekend.
Over the weekend, the juror in question was shopping at a Home Depot store in the Boston area. While he stood in a checkout line, the juror initiated a conversation with another patron. The patron, who was a stranger to the juror, was Kevin Todd,
The conversation lasted about three minutes; the juror did most of the talking. Todd later notified the Boston police department about the encounter, and the matter was brought to the attention of the trial judge. After conducting an evidentiary hearing in which he heard testimony from both Todd and the juror, and over the defendants’ objections, the trial judge excused the juror from further service. The judge opined that the juror’s testimony had not been “candid.”9
The judge stated that he dismissed the juror because he had violated the judge’s “repeated and emphatic” instructions not to discuss the case with anyone. The judge found the violation to be “egregious” and to have exposed the juror to extraneous information concerning the trial’s participants that he should not have heard. The defendants asked for a two-hour recess to permit them to research the relevant case law for juror removal, but the judge denied the request.
Before announcing the juror’s dismissal to the remaining members of the jury, the judge asked defense counsel if they wanted him to say anything specific to the jury; they did not. The judge then instructed the jury as follows:
“I have had to excuse one of your deliberating colleagues, [juror’s name], I’m going to ask you not to speculate about the reason for that. It has nothing to do with your deliberations in the case, and it would be a mistake on your part to speculate about why I did that.”
Neither defendant lodged an objection to the instruction. An alternate juror was selected, and the judge instructed the jury to begin their deliberations anew.10 The next day, the jury acquitted the defendants of eight of the ten charges.11
Discussion. 1. Discharge of deliberating juror. Both defendants claim error in the trial judge’s decision to remove the deliberating juror. The judge addressed this issue both at trial and in the context of the defendants’ joint motion for new trial pursuant to
Discharge of jurors is governed by two statutes. The first is
The defendаnts claim an absence of good cause for the juror’s dismissal, and that the juror’s discussion with Todd at the Home Depot did not expose him to any extraneous influence. After conducting the required hearing, the judge properly rejected these claims. The discharged juror failed to follow the judge’s repeated instructions not to discuss the case outside of the jury room. In fact, the juror discussed the substance of the case, the nature of the defense, and the victims’ use of cocaine, and as a result was exposed to Todd’s extraneous opinion relative to the moral worth of the defendants and the Stivalettas. Contrast Commonwealth v. Rodriguez, 63 Mass. App. Ct. 660, 674 (2005) (improperly dismissed juror had made cellular telephone call from inside the jury room in which she expressed her frustrations with her fellow jurors). Being outside the evidence, and prejudicial to both the defendant and Commonwealth, Todd’s opinion constitutes an
2. Jury instruction on discharged juror. The defendants further claim that the judge’s instruction to the jury following the removal of one of their members was inadequate. Specifically, the defendants claim that the instruction failed to properly convey the warning, articulated in Commonwealth v. Connor, 392 Mass. at 846, that the reason for the juror’s dismissal was entirely personal and not related to the juror’s views or his relationship with the remainder оf the jury. However, when the judge asked the defendants what they would like him to tell the jury, they offered no suggestions, and neither defendant objected to the instruction the judge gave. See
As a starting point, we note that the judge was not required to adhere to the precise language set out in Connor. See Zimmerman, supra аt 151. After discharging the juror, the judge informed the jury about the action he had taken and told them not to
Contrary to the defendants’ claim, their case is not like Commonwealth v. Rodriguez, 63 Mass. App. Ct. at 678, where it was inevitable that the jury would conclude that the juror was removed because of her viewpoint, and the failure to adhere to Connor risked a miscarriage of justice. In Rodriguez, the juror misconduct took place in the jury room and was reported to the judge by the other jurors. Id. at 664-670. Here, however, the trial judge found that the juror’s misconduct took place outside the jury’s рresence and without their knowledge, such that there was no reason for them to conclude his removal was related to the deliberations. Also, the juror in Rodriguez was apparently the cause of the deadlock, id. at 677-678, whereas here, as the judge found, there was no evidence that the discharged juror was functioning as a hold-out for the defense. There was no risk that justice miscarried, and there was no abuse of discretion in the judge’s denial of this claim in the defendants’ postconviction motion.13
3. The excluded expert testimony.14 David P. claims that the trial judge abused his discretion by excluding expert testimony regarding objective standards of the use of а firearm in self-defense. We disagree. “The admission of expert testimony lies
The defendants sought to have their expert testify generally about the reasonableness of the use of firearms by civilians for self-defensе in various situations, but they offered the trial judge no authority in support of the propriety of their request. The trial judge excluded the evidence based on his determination that the jury did not need the assistance of an expert in deciding whether the defendants acted reasonably.15 The judge also noted that the expert’s experience in training police officers, who have a duty to preserve safety and apprehend criminals, would not be relevant to the reasonableness of the actions taken by a civilian. We cannot fairly say — as we would be required to say to conclude that the judge abused his discretion — that “no conscientious judge, acting intelligently, could honestly have taken the view expressed” by him. Commonwealth v. Anderson, 445 Mass. 195, 209 (2005), quoting from Commonwealth v. Jaime, 433 Mass. 575, 579 (2001).
4. Retroactivity of Adjutant. The defendants both claim that the trial judge erred in denying them a new trial because they should
More recently, in Commonwealth v. Pring-Wilson, 448 Mass. 718 (2007), where the identity of the first aggressor was “hotly contested” at the defendant’s pre-Adjutant murder trial, the Supreme Judicial Court again gave a defendant the retroactive benefit of the Adjutant rule. Id. at 733, 736-737. In affirming the trial judge’s grant of a new trial, the court reasoned that Pring-Wilson was “in the same shoes as Adjutant in that, in both casеs, 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.” Id. at 736. The court stressed that Pring-Wilson, albeit without success, “sought aggressively and repeatedly ... to introduce evidence of [the victim’s and his cohort’s] violent histories to illuminate the matter.” Id. at 736-737.
Although the defendants have pursued their Adjutant claim prior to the conclusion of direct review, they have done so only
The defendants also seek retroactive application of Adjutant by operation of the second exception to the framework of Teague v. Lane, 489 U.S. 288, 311-313 (1989), which otherwise prohibits the retroactive application of a new rule to a case on collateral review. See Commonwealth v. Bray, 407 Mass. 296, 303 (1990). This exceedingly narrow exception applies when the new rule is (1) “implicit in the concept of ordered liberty,” implicating “fundamental fairness,” and (2) “central to an accurate determination of innocence or guilt,” such that its absence “creates an im-permissibly large risk that the innocent will be convicted.” Teague, supra at 311-313 (citations omitted). See Bray, supra.
The trial judge in Pring-Wilson used this exception to apply Adjutant retroactively, but the Supreme Judicial Court neither adopted nor discussed that rationale.17 Indeed, admitting evidence of a victim’s past history for violence to establish who was the first aggressor is neither “implicit in the concept of ordered liberty” nor a procedure that, by itself, would be necessary to the
Finally, there is no merit to the defendants’ claim that the “clairvoyance” doctrine should excuse their failure to raise the Adjutant issue at trial. This exception to the waiver dоctrine “applies to errors of a constitutional dimension ‘when the constitutional theory on which the defendant has relied was not sufficiently developed at the time of trial or direct appeal to afford the defendant a genuine opportunity to raise his claim at those junctures of the case.’ ” Commonwealth v. Randolph, 438 Mass. 290, 295 (2002), quoting from Commonwealth v. Rembiszewski, 391 Mass. 123, 126 (1984). As stated supra, Adjutant has no constitutional component, and the defendants have pointed to no case that applies the clairvoyance exception to a new common-law rule of evidence. See Commonwealth v. Dagley, 442 Mass. 713, 721 & n.10 (2004), cert. denied, 544 U.S. 930 (2005) (refusing to apply retroactively a new common-law rule of evidence).
Finally, even if the clairvoyance exception applied outside the constitutional context, it would offer no relief in these circumstances. To apply the exception, the court must determine whether the legal theory upon which the defendants now rely was sufficiently developed at the time of trial to put counsel on notice as to the availability of the claim. See DeJoinville v. Commonwealth, 381 Mass. 246, 248 (1980). The court “do[es] not require that defense counsel foresee developments in the cаse law.” Commonwealth v. Garcia, 379 Mass. 422, 439-440 (1980).
In this case, at the time of trial, at least forty-five States and the Federal courts allowed a defendant claiming self-defense to introduce evidence of the victim’s propensity for violence to
Conclusion. The judgments and the order denying the defendants’ joint motion for new trial are affirmed.
So ordered.
Notes
Additional facts will be discussed as they relate to the defendants’ specific claims of error.
Later that same night, an angry Joseph P. spoke to Martin on the telephone
A “sap stick” is a leather-bound lead bar.
Three knives also were recovered from the defendants.
Scott S. denied that David S. had a gun, and Luciano denied that David S. ever got close enough to Scott S. after the shooting to hand him anything. No other witness saw David S. holding a gun.
Belmonte, the man found standing with the defendants, testified that he did not come to the scene with the defendants or participate in the altercation.
We draw the facts on this subject from the findings of the judge, set out in his memorandum of decision on the defendants’ new trial motion, and also directly from undisputed matter in the trial reсord where necessary. The defendants do not claim error in any subsidiary findings.
The juror’s version of the Home Depot encounter had Todd doing most of the talking, and only discussing the case in general. The juror said they discussed a bar where Luciano and Scott S. retired to after the shooting. The juror characterized the bar as a “biker place” where people used cocaine. The juror denied that he discussed any other evidence in the case, but was unsure whether he shared with Todd his opinion as to the probable outcome of the cаse.
In the judge’s initial instructions to the jury prior to the beginning of deliberations, the judge stated why alternate jurors were necessary:
“I can’t dismiss the alternates because they [may] be needed in the event that for some reason I may have to excuse a deliberating juror or more than one for reasons having to do with, say, personal emergency or sickness or something like that, something totally removed from how a juror may be, any positions that he or she may be taking on the issues because it would be totally inappropriate and unlawful for a judge tо excuse a juror whose viewpoints may seem to the others on the jury somewhat at odds or idiosyncratic or anything of that nature.”
On the murder indictment, David P. was convicted of the lesser included offense of voluntary manslaughter. He was acquitted of armed (knife) assault with intent to murder Arthur S., armed (handgun) assault with intent to murder Martin, assault and battery by means of a dangerous weapon (handgun) upon Martin, and assault and battery by means of a dangerous weapon (cane) upon Martin.
Paul P. was convicted of assault and battery by means of a dangerous weapon (cane) upon Martin. Paul P. was acquitted of the murder of David S., armed (knife) assault with intent to murder Arthur S., armed (handgun) assault with intent to murder Martin, and assault and battery by means of a dangerous weapon (handgun) upon Martin.
There is likewise no merit to the defendants’ claim that the judge erred by not specifically inquiring of the juror whether he could remain impartial. The judge was not required to make such an inquiry. Compare Tennison, 440 Mass. at 558-560. In fact, after the judge examined the juror, he stated that the juror’s testimony had not been candid. Given his assessment of the juror’s credibility, nothing would have been gained by an assurance from the juror that he could remain impartial. See Commonwealth v. Young, 401 Mass. 390, 405-406 (1987) (judge is entitled to disbelieve juror’s assertion regarding his ability to be impartial).
There is also no merit to David P.’s highly speculative claim, which he later expressed at sentencing, that the jury might have sensed the judge’s skepticism about the defendants’ self-defense claims. To the extent the jury could have intuited such a belief, the judge disabused them of that notion with his instruction that they should not interpret anything he had said or done during the trial as an indication that he had an opinion about the case.
We acknowledge the amicus brief of the National Rifle Association on this issue.
The verdicts alone belie the claim that the jury needed assistance in determining the reasonableness of the defendants’ actions. To have acquitted the defendants of murder and five of the six gun charges, the jury had to have discounted the Commonwealth’s theory that the defendants intended the gun fight and acted unreasonably. To convict David P. of manslaughter, the jury most likely believed that David S. was not armed and that by shooting him, David P. used force in excess of that reasonably justified in self-defense. See Commonwealth v. Carrion, 407 Mass. 263, 267 (1990) (“Vоluntary manslaughter is unlawful homicide arising not from malice, but ‘from the frailty of human nature,’ as in a case of ‘sudden passion induced by reasonable provocation, sudden combat, or excessive force in self-defense’ ”), quoting from Commonwealth v. Nardone, 406 Mass. 123, 130-131 (1989).
“[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).
The Superior Court judge’s memorandum of decision was available in the record appendix submitted in the Pring-Wilson appeal.
Given our holding, we need not review the propriety of the trial judge’s determination that he would have exercised his discretion to exclude the claimed Adjutant evidence provided in the new trial motion.