Commonwealth v. Pavao2/2/1999
97-P-1336 Appeals Court
Bristol.
November 19, 1998.
Constitutional Law, Admissions and confessions, Assistance of counsel. Evidence, Admissions and confessions, Voluntariness of statement. Practice, Criminal , Admissions and confessions, Voluntariness of statement, Assistance of counsel.
Indictment found and returned in the Superior Court Department on December 30, 1987.
Following review by this court, 34 Mass. App. Ct. 577 (1993), the case was tried before Walter E. Steele, J.
On January 19, 1989, the defendant was convicted by a Superior Court jury of second degree murder. That conviction was subsequently reversed, on the ground that the prosecutor materially misstated the evidence. See Commonwealth v. Pavao, 34 Mass. App. Ct. 577, 577 (1993). On retrial, the defendant was convicted of manslaughter and sentenced to not less than fifteen nor more than twenty years at Massachusetts Correctional Institution at Cedar Junction. The defendant now claims that the Judge incorrectly failed to conduct a voir dire on the voluntariness of the defendant's statements to the police, that the Judge failed to give a "humane practice" instruction, and that the defendant's trial counsel was ineffective for not requesting either of the above procedures.
The evidence was as follows. On December 19, 1987, the defendant, William Pavao, and the victim, James Barboza, separately went to the Sportsman's II lounge in Swansea. Shortly after midnight, the defendant and his wife got into an argument. After the defendant walked away, a patron, Steven O'Brien, an acquaintance of the victim, asked the defendant's wife if she was "okay." Thereafter, the defendant and O'Brien exchanged words.
Subsequently, in the foyer of the establishment, the defendant's wife and Kelly Melia, a friend of the victim, attacked each other. The victim intervened, separating the two women. The victim also punched the defendant and his friend Antonio Sousa, knocking down and injuring both. The defendant, Sousa, and another individual then went outside, and the victim returned to the lounge. Outside, the defendant stated, "He's not going to get away with it." There was also testimony that he stated that "I want to get that fucking nigger."
A short time later, the lounge closed and the victim and his friends left the building. The Commonwealth's witnesses testified that the defendant and his friends waited for the victim and lured him to the area near their car. The victim then approached Sousa and kicked him in the chest, whereupon Sousa grabbed the victim's leg causing the victim to fall to the pavement. The defendant then swung a tree limb at the victim and repeatedly beat the victim with the limb while he was on the ground.
The defense, on the other hand, provided evidence showing that the victim confronted the defendant's friends as they were leaving the club. The victim then tried to kick Sousa, but Sousa blocked the blow. At that point, a crowd was closing in on the defendant, so he swung a tree limb to keep the crowd back. The tree limb then hit the victim at about the time that Sousa yanked the victim's leg and flipped him to the ground, causing him to strike his head on the pavement. As the victim was trying to get up from the ground, the defendant again hit him with the tree limb.
Approximately two hours after this altercation, the police interviewed the defendant at the hospital. During this questioning, the defendant repeatedly denied that any fight had occurred outside the lounge after the exchange in the foyer. When the police told the defendant that the victim had died, the defendant "ended up crying." Th
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