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Man fairly convicted for murder outside a Roxbury bar despite errors by judge and prosecutor, court rules

The Supreme Judicial Court today upheld Charlie Brea's first-degree murder conviction for shooting a man to death during a fight he wasn't initially a part of outside the Breezeway on Blue Hill Avenue in 2010, ruling that even discounting mistakes by the judge and the prosecutor at trial, the evidence was just too overwhelming and the jury would have convicted him anyway.

According to a court summary of the case, Brea and some pals arrived at the now closed watering hole shortly after 1 a.m. on Oct. 23, 2010, after drinking at a bar in South Boston. Somebody said something to one of Brea's acquaintances closer to closing time and the argument escalated outside the bar - the acquaintance was sucker punched - Brea went to his car, got a gun and opened fire, killing Luis Montanez, who also was not initially part of the fray but who joined in.

In 2018, a jury convicted Brea of first-degree murder - the gap between the murder and the trial was due to Brea fleeing the country for the Dominican Republic not long after the killing.

The state's highest court ruled the judge erred by allowing a Boston Police detective to testify that as part of his investigation, he had seen a computer screen at the Logan Airport Customs office showing that Brea had purchased a one-way ticket to the Dominican Republic via New York and that he had gotten on the plane.

The reason this was a mistake was because prosecutors had failed to show that the screen the detective described showed information was entirely computer-generated, which can be allowed into testimony, or whether it simply represented information a person had typed into a computer terminal, which cannot be allowed in without giving the opposing side the ability to cross-examine the person who typed in the information. Massachusetts courts hold that automatic data - for example, a database entry triggered by a sensor - is not potential hearsay, while something that is written by a person and then simply stored electronically, is.

Simply put, because computer-stored records contain statements of human beings, they can in certain circumstances constitute hearsay; but computer-generated records, which contain only the results of computer programs, cannot.

However, the court concluded this error didn't matter because the assistant Suffolk County district attorney prosecuting the case presented sufficient allowable testimony and evidence that Brea had, in fact, fled the country, including testimony from his girlfriend, who lived in the building next to his in a South Boston housing development and other witnesses that he was no longer around after about a week following the murder.

Although the additional testimony from [the detective] about the particular details of the defendant's departure was more specific, both it and the other evidence of flight reasonably led to the same conclusion: that the defendant left his friends and family and fled to the Dominican Republic in the aftermath of the homicide, not simply to see his father for a temporary visit but to move there indefinitely in order to avoid capture and prosecution.

Similarly, the court ruled that there was no ultimate harm in the way the prosecutor tried to get the jury to accept testimony from one witness even though he had told varying stories to police, before a grand jury and during the trial, by trying to get them to play a sort of game: To write down the color of a car and the color of the jacket a man was wearing that they had all seen during a visit to the scene, because the man got into an argument with police, and then compare their answers. His argument:

Just as the jury might not agree on all the details of the incident that occurred on the view, but would agree generally on the "big picture," so too, the prosecutor argued, [the witness] was believable notwithstanding his inconsistencies because he was consistent in recounting the "big picture," that the shooter was a heavy-set man with a gray hooded sweatshirt.

Don't do that again, the court admonished. On the site visit, the jury was supposed to pay close attention to what the two sides argued they were seeing specifically related to the murder, and that they were supposed to try to disregard everything else.

We have no doubt that he could have made the same point -- that memories are inexact -- just as effectively without invoking the jurors' memories of the event that occurred on the [visit].

But, the court continued:

Nevertheless, nothing the prosecutor said rises to the level of prejudicial error. Although he chose a poor example to make his point, the prosecutor's remarks did nothing more than illustrate a noncontroversial, commonsense principle about human memory. The jury surely would have understood it as such. Therefore, although the prosecutor's closing comments about the view were error, they were not prejudicial.

The court rejected an argument by Brea's attorney that the verdict should be overturned because the judge refused to instruct the jury that they could find him guilty on the lesser charge of manslaughter based on "reasonable provocation, sudden combat, and excessive use of force in defense of another."

Basically, the court said the judge was correct because a manslaughter conviction like that requires proof that the killer was himself attacked, in the middle of heated battle or that he was acting to save somebody's life and none of that applied to Brea. Although he was part of the group that got into the fight, he himself was not initially involved in any of the fighting, so there was no provocation or "sudden combat" to warrant his repeated gunfire. And while one of his pals was punched, he remained standing and continued to participate in the fight, at least until Brea went to his car, got out his gun and began firing.

Although the defendant did witness an acquaintance get punched and the resulting scuffle between some of his friends and their adversaries, he did not indicate in any way that this caused him to experience "a sudden transport of passion or heat of blood." ... Without such evidence, the defendant's argument fails at the outset.

Second, no rational jury, considering the situation objectively, could have believed on this record that a reasonable person in the defendant's position would be provoked to act as he did. No threatening action was directed toward the defendant. At most, he witnessed a casual acquaintance being punched before he joined in and fired. ...

The defendant points to no case, nor are we aware of any, in which we have held that a person acting as he did -- employing deadly force in response to a punch directed at someone with whom he was only casually acquainted -- was entitled to a manslaughter instruction based on reasonable provocation. Considering that even "physical contact between a defendant and a victim [who initiated the contact] is not always sufficient to warrant a manslaughter instruction," Commonwealth v. Walden, 380 Mass. 724, 727 (1980), we decline to create such a precedent here.

Also, "sudden combat" requires the person charged to actually be in the thick of the combat, and the court said Brea was not.

To be sure, there were individuals involved in mutual combat here, but that combat did not involve the defendant until he inserted himself into it. Additionally, that conflict was not directed against him; there was no "sudden assault" upon the defendant. As stated, there was no evidence or reasonable inference to be drawn that the victim or anyone else attacked him or inflicted any blows on him at any time. Therefore, no rational jury could have believed in these circumstances that the defendant shot in response to mutual combat involving himself, or, more precisely, could have formed a reasonable doubt as to mitigate to murder on that basis. Hence no instruction was required on that possibility.

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