Commonwealth v. Jose Rivera, Jr.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1023

COMMONWEALTH

vs.

JOSE RIVERA, JR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury convicted the defendant of murder in

the second degree for aiding and abetting in the killing of

Martin Butt (the victim). In this consolidated appeal, we

consider the defendant's direct appeal from the conviction and

his subsequent appeals from the orders denying his motions for

new trial. The defendant contends, among other things, that the

judge erred by failing to give jury instructions on the lesser

included offenses of assault and battery and voluntary

manslaughter. Because we conclude that it was error not to

instruct the jury on assault and battery, we reverse the orders
denying the defendant's new trial motions, vacate the judgment,

and set aside the verdict.1

Background. In deciding whether the evidence supported

jury instructions for assault and battery and voluntary

manslaughter, "all reasonable inferences must be resolved in

favor of the defendant." Commonwealth v. Vanderpool, 367 Mass.

743, 746 (1975). Accordingly, we summarize the evidence

presented at trial in the light most favorable to the defendant.

On the morning of September 9, 2012, Stephanie Coleman and

Christopher Ansara, who were friends with the victim, woke up

"dope sick" and without money to purchase heroin. The victim, a

heroin addict, sent a text message to Ansara that morning asking

if Ansara knew of any drug dealers the victim could rob.

Coleman and Ansara knew the defendant because they bought drugs

from him. They also knew that the victim had robbed the

defendant's drug runner, Jose Rodriguez,2 one week earlier.

In need of money and drugs and aware that the defendant

might be interested in getting back at the victim, Coleman and

Ansara proposed to the defendant a plan to set up the victim so

1 In light of our disposition, we need not address the
defendant's other arguments, regarding jury selection and newly
discovered evidence, as they are not issues that will recur at
any retrial.

2 The witnesses knew Rodriguez as "Gary Scotty."

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the defendant could beat him up. In exchange, the defendant

promised to take care of Coleman and Ansara if they brought the

victim to Lawrence.

Acting according to the plan, Coleman and Ansara told the

victim that they would all drive to Lawrence to meet with a drug

dealer in the dealer's car, purportedly to buy drugs, and the

victim would run up and rob the dealer. Coleman and Ansara

would split the proceeds with the victim.

After Coleman, Ansara, and the victim got out of the

victim's car in Lawrence, a red truck stopped next to the

victim. The defendant and a couple of other men got out of the

truck and chased the victim. The victim ran and reached for his

waistband, where Coleman had seen him put a gun. Coleman

testified that the victim tripped, at which point she turned her

head. Coleman ran toward the car and heard two gunshots "right

away." Isabel Reyes, Rodriguez's girlfriend, testified that

Albert Vasquez, the person charged as the shooter, told her that

the victim reached for the gun, the defendant punched the victim

in the face, and Vasquez then fired two gunshots.

The Lawrence police responded to a call for shots fired.

The police saw the victim on the ground bleeding from what

appeared to be a gunshot wound to his head and discovered a gun

3
on the street feet away from the victim's hand.3 Police

interviewed several witnesses, including Ansara and Coleman.

Approximately three months later, the defendant was charged with

murder in the first degree.

Discussion. The defense theory at trial was that the

defendant intended only to beat up the victim and had no

intention of killing him. The defendant contends that the

evidence warranted a jury instruction on the lesser included

offenses of assault and battery and voluntary manslaughter and

that the judge erred by not giving the instructions. Because

the defendant objected to the judge's failure to instruct the

jury on both lesser included offenses, we review for prejudicial

error. Commonwealth v. Teixeira, 486 Mass. 617, 622 (2021);

Commonwealth v. Sanchez, 100 Mass. App. Ct. 644, 652 (2022).

A trial judge must give "an instruction on a particular

offense where: (1) the offense is, as a matter of law, a lesser

included offense of the crime charged; and (2) 'the evidence

provides a rational basis for acquitting the defendant of the

crime charged and convicting him of the lesser included

offense.'" Commonwealth v. Donovan, 422 Mass. 349, 352 (1996),

3 The gun located near the victim's body was a "blank
pistol," meaning that it could shoot only blank cartridges.
However, a firearms examiner testified that he would not be able
to distinguish it from a real gun.

4
quoting Commonwealth v. Santo, 375 Mass. 299, 305 (1978). A

judge must instruct on a lesser included offense only when there

is "some evidence that specifically puts in question an element

of the greater offense that is not required of the lesser

offense." Commonwealth v. Porro, 458 Mass. 526, 536 (2010).

The evidence offered to justify the instruction must provide

more than "the mere possibility that the jury might not credit a

portion of the Commonwealth's evidence." Id., quoting

Commonwealth v. Donlan, 436 Mass. 329, 337 (2002). "When the

evidence permits a finding of a lesser included offense, a judge

must, upon request, instruct the jury on the possibility of

conviction of the lesser crime." Commonwealth v. Woodward, 427

Mass. 659, 662-663 (1998), quoting Commonwealth v. Gould, 413

Mass. 707, 715 (1992).

1. Absence of assault and battery instruction. "It is

undisputed that assault and battery is a lesser included offense

of murder." Sanchez, 100 Mass. App. Ct. at 652, citing

Commonwealth v. Miller, 457 Mass. 69, 81 (2010). To prove an

intentional assault and battery, the Commonwealth must prove the

"intentional and unjustified use of force upon the person of

another, however slight." Porro, 458 Mass. at 529, quoting

Commonwealth v. McCan, 277 Mass. 199, 203 (1931). Second-degree

murder consists of two elements: "(1) an unlawful killing and

(2) malice." Commonwealth v. Earle, 458 Mass. 341, 346 (2010).

5
See Model Jury Instructions on Homicide, Part V (2018). Malice

can be established by showing that: (1) "the defendant intended

to cause the victim's death," (2) "the defendant intended to

cause grievous bodily harm to the victim," or (3) "the defendant

committed an intentional act which, in the circumstances known

to the defendant, a reasonable person would have understood

created a plain and strong likelihood of death." Earle, supra.

We evaluate the evidence cited by the defendant that "puts in

question," Porro, 458 Mass. at 536, the malice element of

second-degree murder, which is not required of intentional

assault and battery. See id.

Here, the defense strenuously disputed the Commonwealth's

proof of malice, arguing at trial that the defendant lacked the

necessary mental state for murder because he intended only to

beat up the victim and that Vasquez shot and killed the victim

in self-defense. The Commonwealth's theory of the case placed

the gun used to kill the victim in the hands of Vasquez, not the

defendant. Resolving all factual disputes in favor of the

defendant, the evidence at trial provides a rational basis for

acquitting the defendant of second-degree murder and convicting

him of assault and battery. See Donovan, 422 Mass. at 351-352

(jury should have been instructed that assault and battery was a

lesser included offense of murder where defendant, who punched

the victim in the face, claimed that he did not know his

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coventurer was armed and did not see coventurer stab victim in

the heart).

The evidence presented would have permitted the jury to

conclude that the defendant had no plan to kill or cause

grievous bodily harm to the victim. Coleman's testimony

supported the defense theory that the defendant intended only to

beat up the victim and not to kill him. She testified at trial

that she and Ansara set up the victim to be "confronted" and

beaten up by the defendant. Coleman denied that the defendant

ever said that he wanted to kill the victim and maintained that

he only wanted to "beat [the victim's] face." She told the

police the same thing the day after the incident. When asked at

trial if the defendant had intended to kill the victim, Coleman

testified, "No, God no." The Commonwealth points to Coleman's

testimony that when she warned the defendant of the victim's

gun, the defendant responded, "We got guns too." Indulging all

inferences in favor of the defendant, however, the jury could

have discredited Coleman's testimony as fabricated and

uncorroborated because she failed to tell this to the police

until her third interview with them. Even if the jury believed

that the defendant made the statement to Coleman, the evidence

could still have permitted them to believe that the defendant

and his associates were bringing guns solely to defend

themselves since the victim had a gun.

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Evidence about the moments leading up to the shooting also

supported the defense theory that the defendant intended only to

beat up the victim and lacked the intent to kill him. The jury

heard testimony that the defendant punched the victim after

chasing him and that Vasquez said that he shot the victim only

after he saw the victim attempt to draw a gun. A gun was found

at the scene just feet from the victim's hand after the

shooting.

The trial judge appeared to view the evidence this way as

well. Addressing defense counsel's request for the lesser

included assault and battery instruction, the trial judge

acknowledged that the evidence could support giving the

instruction, stating that it "may be appropriate in the sense

that the jury does not believe there is any intent to kill."

After the Commonwealth objected, the judge responded that the

lack of intent to kill was the defendant's "entire theory," and

that theory was supported by Coleman's testimony that a beating

was intended. Despite the judge's acknowledgment, when the

trial reconvened4 neither the defense counsel nor the judge

raised the lesser included assault and battery instruction when

4 Discussion about jury instructions began on a Friday and
resumed the following Monday.

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discussing the jury instructions. Without further discussion or

explanation, the judge did not give the instruction.

We agree with the trial judge's initial assessment that,

resolving reasonable inferences in favor of the defendant, the

evidence permitted a finding that the defendant intended to

commit an assault and battery. Where the judge made this

assessment and defense counsel requested the relevant

instruction, the judge was required to "instruct the jury on the

possibility of conviction of the lesser crime." Woodward, 427

Mass. at 663, quoting Gould, 413 Mass. at 715. The judge's

failure to give the lesser included assault and battery

instruction therefore constituted error. See Teixeira, 486

Mass. at 622. See also Commonwealth v. Gilliard, 46 Mass. App.

Ct. 348, 350-351 (1999) (affirming allowance of a new trial

based on ineffective assistance of counsel where defense counsel

failed to request assault and battery lesser included

instruction and evidence supported finding that defendant

participated in joint venture to beat victim). Compare Sanchez,

100 Mass. App. Ct at 652-653 (failure to give assault and

battery instruction not error where defendant's hitting the

victim with metal baton "merged" with another assailant's

simultaneous stabbing of victim, making defendant's role in

victim's death clear from evidence).

9
The Commonwealth argues that the judge did not err in

failing to instruct on the lesser included assault and battery

offense because the jury would have acquitted the defendant

outright if they found that the defendant believed the joint

plan involved only beating up the victim.

We are unpersuaded that this case is similar to

Commonwealth v. Alebord, 68 Mass. App. Ct. 1, 6-10 (2006). In

Alebord, the defendant was an active and knowing participant in

a plan to shoot into a crowd -- he gave the shooter the gun,

drove him to the scene, and shared the shooter's intent to shoot

at the intended targets. See id. at 9. In requesting an

involuntary manslaughter instruction, the defendant argued that

"it may be willful, wanton or reckless conduct" on the part of

the shooter "to fire . . . toward a crowd of people or toward

one or two people." Id. at 7. We concluded in Alebord that the

trial judge properly rejected the argument because 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" and that a "plan to fire a rifle into a

crowd to scare and to secure the return of money does not

entitle a defendant to an involuntary manslaughter instruction"

even when the defendant later states that he did not want the

shooter to hit anyone and expressed surprise that he did. Id.

at 7, 9. Here, by contrast, the jury heard no evidence that the

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defendant participated in any plan to shoot the victim or that

he shared any intent with Vasquez to shoot the victim. The

evidence here permitted the jury to draw a reasonable inference

that the defendant intended only to beat up the victim and not

to kill him.

We further conclude that the failure to instruct on assault

and battery was prejudicial. Sanchez, 100 Mass. App. Ct. at

652. See Commonwealth v. Yunggebauer, 23 Mass. App. Ct. 46, 48-

52 (1986) (vacating conviction of armed robbery and assault and

battery by means of dangerous weapon because trial judge failed

to instruct jury on lesser included offense of assault and

battery). An error is prejudicial if we cannot conclude "with

fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error." Commonwealth v.

Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v.

Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). As noted, the

evidence permitted the jury to conclude that the defendant did

not intend to kill the victim, do him grievous bodily harm, or

engage in conduct that created a plain and strong likelihood of

the victim's death. Moreover, there was no evidence that the

defendant ever expressed such an intent -- the evidence of the

defendant's malice in this case was entirely circumstantial.

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Instructing juries on lesser included offenses "serves the

public purpose of allowing the jury to convict of the offense

established by the evidence, rather than forcing them to choose

between convicting the defendant of an offense not fully

established by the evidence or acquitting, even though the

defendant is guilty of some offense." Woodward, 427 Mass. at

664-665, citing Commonwealth v. Walker, 426 Mass. 301, 305

(1997). Having carefully reviewed the trial transcript, we

cannot rule out the possibility that the jury's verdict in this

case was a result of such a forced choice as the evidence of

murder was not overwhelming. Because we are not confident that

depriving the jury of the option to find the defendant guilty of

assault and battery rather than murder "had but very slight

effect" on the outcome, Flebotte, 417 Mass. at 353, quoting

Peruzzi, 15 Mass. App. Ct. at 445, we conclude that the error

was prejudicial.

2. Absence of manslaughter instruction. The defendant

also contends that the judge erred by declining his request for

a lesser included offense instruction for voluntary manslaughter

on the theory that Vasquez used excessive force in self-defense

or defense of another.5

5 Because the Commonwealth proceeded on the theory that the
defendant aided and abetted Vasquez, he would be entitled to a
self-defense instruction if the jury could have found that

12
If the Commonwealth fails to disprove self-defense beyond a

reasonable doubt, a defendant could be found guilty of voluntary

manslaughter if the Commonwealth proves beyond a reasonable

doubt that a defendant used excessive force. See Commonwealth

v. Curtis, 417 Mass. 619, 631 (1994). See also Commonwealth v.

Anestal, 463 Mass. 655, 674 (2012) ("To receive an instruction

on the excessive use of force in self-defense, the defendant

must be entitled to act in self-defense, but used more force

than was reasonably necessary in all the circumstances of the

case" [quotation and citation omitted]). "The proper standard

for determining whether a defendant's particular actions were

justifiably undertaken in self-defense depends on the level of

force he used on his victim and the circumstances that prompted

those actions." Commonwealth v. Walker, 443 Mass. 213, 216

(2005), quoting Commonwealth v. Pike, 428 Mass. 393, 395 (1998).

The defendant argues that the jury could have found that

the force used by shooting a firearm was excessive and a

physical assault by the defendant and Vasquez "would have been a

more adequate response to neutralize the threat presented by

[the victim's] attempt to draw a firearm." We are not persuaded

and conclude that the trial judge committed no error when he

Vasquez was entitled to act in self-defense or defense of
another. See Commonwealth v. Pasteur, 66 Mass. App. Ct. 812,
819 (2006). The judge gave a self-defense instruction.

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denied the defendant's request for the instruction. As the

judge explained:

"I think it's either self-defense or not because if, in
fact, it's believed that [the victim] pulled the gun first,
then there is no excessive force responding to that. And
if it's believed that he didn't pull the gun first, it
couldn't just be found to be excessive force. It's the
killing."
We agree. As relevant to the analysis of whether an

instruction on excessive force in self-defense was required, the

sole issue before the jury was when the victim drew his weapon.

If the jury believed that the victim drew the gun before Vasquez

shot him, then the jury could find that Vasquez's use of the gun

to shoot first would have been justified and not seen as

excessive force. Commonwealth v. Egerton, 396 Mass. 499, 504

(1986) ("a judge need not charge the jury on a hypothesis

unsupported by the evidence"). Resolving all reasonable

14
inferences in the defendant's favor, the evidence here did not

warrant an instruction on voluntary manslaughter.

Orders entered July 9, 2021,
and August 18, 2023,
denying motion and renewed
motion for new trial
reversed.

Judgment vacated.

Verdict set aside.

By the Court (Massing,
Hershfang & Tan, JJ.6),

Clerk

Entered: March 31, 2025.

6 The panelists are listed in order of seniority.

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