Com. v. Gaouette

Page 1

850 N.E.2d 1

66 Mass. App. Ct. 633

COMMONWEALTH v. Justin K. GAOUETTE.

No. 04-P-1159.

Appeals Court of Massachusetts, Bristol.

Argued November 16, 2005.

Decided June 28, 2006.

Joseph S. Berman, Boston, for the defendant.

Sharon L. Sullivan-Puccini, Assistant District Attorney, for the Commonwealth.

Present: BECK, KAFKER, & COHEN, JJ.

KAFKER, J.

Determined to fight over a twenty-dollar debt, the defendant, Justin K. Gaouette, demanded a showdown. At the arranged confrontation, the defendant shot two brothers, killing one of them. After trial on an indictment for murder in the first degree by deliberate premeditation, a jury found the defendant guilty of the lesser included offense of murder in the second degree of David Silva (David). The same jury returned guilty verdicts on five other indictments charging armed assault with intent to murder Matthew Silva (Matthew); assault and battery by means of a dangerous weapon; unlawful possession of a firearm; unlawful possession of ammunition; and receiving stolen property (a firearm).

On appeal, the defendant argues that (1) the judge erred in failing to instruct the jury sua sponte on a possible verdict of voluntary manslaughter based on the mitigating factors of sudden transport of passion or heat of blood upon reasonable provocation or sudden combat; (2) the judge failed adequately to explain excessive force in self-defense; and (3) trial counsel was ineffective for failing to present a defense based on sudden transport of passion or heat of blood upon reasonable provocation or sudden combat and for failing to request instructions on these mitigating circumstances.

The facts relevant to any instruction on the mitigating circumstances of reasonable provocation and sudden combat are essentially undisputed, but where there is any question, they have been presented below in the light most favorable to the defendant.¹ Commonwealth v. Acevedo, 446 Mass. 435, 443, 845 N.E.2d 274 (2006).

In the fall of 2002, the defendant and Matthew often spent time together because their respective girl friends, Letitia Boissoneault (Letitia) and Danielle Travers (Dee), were best friends. Sometime in November, 2002, the defendant gave Matthew twenty dollars to install a stereo in the defendant's car. Soon afterward, the defendant had a car accident, no longer wanted the stereo, and instead wanted his money back.

Over the course of the next month, the defendant saw less of Matthew, but relayed messages to him through their respective girl friends that he wanted his money returned. Dee told Matthew that the defendant was getting angry about Matthew's failure to pay back the cash. During this same time period, between Thanksgiving and Christmas, 2002, the defendant acquired a handgun. The defendant stated that the purchase of the handgun had nothing to do with his dispute with Matthew.

The hostilities between the defendant and Matthew escalated on New Year's Eve. That afternoon, Matthew drove Dee to Letitia's house to pick her up so the two young women could go shopping. As Matthew and Dee stopped at Letitia's house and waited for her to come outside, the defendant drove up behind them with Letitia and two other individuals in his car.

The defendant asked Matthew if he had his money. Matthew said, "No," and told the defendant that he could give it to him next week, when he got paid. The defendant got angry and began yelling at Matthew, "Are you trying to play me?" The defendant took off his coat and handed it to one of his friends who had been in the car with him. The defendant wanted to fight: he yelled at Matthew, "If you get out [of] this car right now, I'm going to bang you"; and "I'll fucking crack you right here." As the defendant drove away from the scene, Matthew was smiling and laughing and told the defendant, "I know where you live, and I got bigger boys than you."²

The defendant admitted to police that when he realized Matthew was not going to repay him, "I knew that I wanted to hit him, at least." The defendant said he knew fighting was not going to get his money back, but explained that "I felt disrespected, so I challenged [Matthew] to fight me."

On New Year's Day, at about 5:00 P.M., Letitia arrived at Dee's house to have birthday cake. Almost immediately, the two friends began to argue. Dee told Letitia that the defendant "shouldn't have did [sic] that," referring to the defendant's challenge to fight. Letitia told Dee that Matthew should pay back the money. Letitia got angry and left. She called the defendant to pick her up, and when he arrived, she told him what Dee had said. The defendant, who viewed the statement that he "shouldn't have did [sic] that" as a threat, became very angry and called Dee. When Dee answered, the defendant began to argue with her and said, "[Y]our faggot boyfriend's going to get it."

In short order, Matthew learned through a series of telephone calls from Dee that the defendant was angry and still wanted to fight, so he called the defendant. Upon receiving the call, the defendant began to scream at Matthew, "Where are you? I got something for you." Matthew testified that his brother, Nicholas Silva (Nick), overheard the conversation and said into the telephone, "He's at my house. You know where I live. Come get him. You know, if you want to fight him, come down here and fight him." The defendant's account of the telephone call was similar. Dee testified that during the exchange of telephone calls, she received a call from Letitia in which she could hear the defendant saying into the phone, to Dee, "You're in it too"; "I'm going to slap you"; and "you're dead too."

The defendant and Letitia headed towards Nick's house on Cove Street, but stopped first at the defendant's house. The defendant retrieved the .38 caliber revolver that he had recently purchased and loaded it with six bullets. According to the defendant, he did not think the brothers "would have weapons," but he thought that "it was a possibility," and brought the gun for "protection." He stated that "my intentions were not to use it."

Meanwhile, Matthew, Nick, and a third brother, David, gathered at a restaurant that was next door to Nick's house to "have a beer" while they waited. There, they were joined by three friends.

About thirty to forty-five minutes later, the defendant and Letitia arrived on Cove Street. The defendant put the car in park at a slant in front of Nick's house, thinking he was "going to move my car out and park it." There was a group of young men standing outside that included Nick, David, and the three friends; Matthew had gone into the house just before the defendant arrived. Nick, who was near the stairs to his home, began to approach the defendant's car on the passenger side. Nick came within about three or four feet of the vehicle on the passenger side.

According to the defendant's statement to the police, Nick said, "[W]hy don't you put down whatever you had in your hand."³ The defendant told the police that he was in the process of taking the gun out of his pocket and putting it under the seat, in preparation for a fist fight,⁴ when Nick walked toward the vehicle. The defendant stated that he "was nervous. . . . So I kind of had my hand on [the gun]." At about the same moment, the defendant realized that Matthew was coming quickly down the steps from the house carrying a baseball bat. Then the defendant said, "That's when I, like, grabbed it."

The defendant further said, "[A]fter that it was like a blur, . . . . [The n]ext thing I remember is Matt walking to the front of the car . . . and then he smashed my window [with a baseball bat]. And that's when I grabbed my gun . . . . I think I shot, like three times." In addition to seeing Matthew with the bat, the defendant remembered a "hand . . . coming [through the driver's side window] trying to . . . pull me." He stated that he shot in the direction of both Matthew and the person trying to reach into the car. He described himself as "just reacting." He said that after he fired one shot they were "still, like, coming after me. So I was still scared, so I fired two more shots." He also remembered hearing banging on the car and commotion from those standing there.⁵

Matthew's testimony was similar. He stated that he ran or walked quickly to where the defendant was parked and went around the front of the vehicle toward the defendant as he held the bat up in the air. Matthew testified that as he "ran around the front, [the defendant] was in the driver's seat, and he pulled something up like this out of the side of the seat, and all I seen was the black and, like, the barrel."

Matthew testified that "as soon as I seen that, I took the baseball bat . . . and smashed the window, the driver's side window." Both the defendant and Letitia were cut by the small shards of glass that flew toward them when the window was smashed. Matthew said that, "As soon as I smashed the window, that's when I heard the first shot go off. That went out the windshield." Matthew "was struck in the elbow."

After the smashing of the window, Matthew's brother David had come around the rear of the motor vehicle on the driver's side and was reaching into the vehicle in an effort to grab the gun away from the defendant. During the struggle, Matthew heard a second shot and then immediately heard David say, "I'm hit," and saw him jump back from the vehicle. David collapsed on the sidewalk and was pronounced dead at the hospital.

After firing the gun, the defendant drove away. He described himself as "still . . . in shock" when the police pulled them over. He gave a statement to the police that evening.

Letitia was the sole witness testifying for the defense at trial. Letitia testified that the defendant had become increasingly angry over Matthew's failure to repay the money during the month preceding the shootings. Letitia added that when they stopped at the defendant's house, on their way to Nick's house, the...