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13-P-1818                                           Appeals Court

               COMMONWEALTH vs. ROBERT IACOVIELLO
                   (and three companion cases 1).


                           No. 13-P-1818.

         Suffolk.      April 8, 2016. - September 15, 2016.

            Present:   Cypher, Katzmann, & Massing, JJ.


Homicide. Practice, Criminal, Instructions to jury.       Self-
     Defense. Wanton or Reckless
     Conduct. Intoxication. Evidence, Prior violent
     conduct. Accessory and Principal.



     Indictments found and returned in the Superior Court
Department on December 20, 2007.

     The cases were tried before Patrick F. Brady, J., and a
motion for a new trial, filed on May 6, 2014, was heard by him.


     Sara A. Laroche (Patricia L. Garin with her) for Robert
Iacoviello.
     Willie J. Davis for James Heang.
     Cailin M. Campbell, Assistant District Attorney (Edmond J.
Zabin, Assistant District Attorney, with her) for the
Commonwealth.




     1
       Two of the companion cases are against Iacoviello and one
is against James Heang.
                                                                     2


     CYPHER, J.   In the early morning hours of September 29,

2007, two groups converged in the dark near a baseball field

behind Revere High School.   One group consisted primarily of

off-duty Revere police officers dressed in civilian clothes.

The other group consisted of four local young men who were

either members of or affiliated with a gang.    Both groups had

been drinking for much of the night.    Heated, gang-related words

were exchanged.   Guns were fired from both sides.   One person,

off-duty Revere police Officer Daniel Talbot, was fatally

wounded.   A second person, defendant Robert Iacoviello, was

charged with murder in the first degree, carrying a firearm

without a license, and possession of a firearm without a firearm

identification card.   A third person, defendant James Heang, who

had not been present during the fateful encounter, was charged

with being an accessory after the fact in aid of Iacoviello and

carrying a firearm without a license.

     In a joint trial, a jury found Iacoviello guilty of murder

in the second degree, G. L. c. 265, § 1, and carrying a firearm

without a license, G. L. c. 269, § 10(a). 2   The jury found Heang

not guilty of carrying a firearm without a license, G. L.

c. 269, § 10(a), but guilty of being an accessory after the

fact, G. L. c. 274, § 4.   The defendants appeal, raising issues

     2
       Prior to the start of the trial, Iacoviello pleaded guilty
to possession of a firearm without a firearm identification
card.
                                                                    3


they preserved during the proceedings below.   Iacoviello

primarily argues that the trial judge erred by declining to

instruct the jury on self-defense, voluntary manslaughter, and

involuntary manslaughter.   Heang primarily argues that the trial

judge erred by prohibiting him from pursuing a consanguinity

defense, which is an exemption to prosecution under the

accessory after the fact statute.   For the reasons discussed

below, we vacate Iacoviello's conviction of murder in the second

degree and Heang's conviction of accessory after the fact. 3

     1.   Background.   We recite the facts in the light most

favorable to defendant Iacoviello to determine whether he was

entitled to jury instructions on self-defense, voluntary

manslaughter, and involuntary manslaughter.    See Commonwealth

v. Santos, 454 Mass. 770, 773 (2009).

     After an afternoon of firearms certification exercises on

September 28, 2007, Talbot and two of his fellow officers,

William Soto and Evan Franklin, spent the late afternoon and

early evening drinking beer.   At about 8:30 P.M. to 8:45 P.M.,

the three off-duty officers went to the bar at Margarita's

restaurant, where they met several other Revere police officers,

     3
       Although Iacoviello's notice of appeal included an appeal
from his conviction of the firearm charge under G. L. c. 269,
§ 10(a), he has not raised any challenge to that conviction in
his appeal. In addition, Iacoviello's appeal from an order
denying his motion for new trial was consolidated with his
underlying appeal, but he has not raised any separate challenge
to that order on appeal.
                                                                   4


including Stacey Bruzzese.   Three hours later, at around 11:45

P.M., they were joined by Talbot's fiancée, Constance Bethel,

and her friend Courtney, both of whom had been eating and

drinking since 9:00 P.M. at another establishment.

     At approximately 12:30 A.M. or 12:45 A.M., now on Saturday,

September 29, 2007, Talbot, Bethel, Soto, Bruzzese, and Franklin

left Margarita's and drove to the baseball field behind Revere

High School in Soto's pick-up truck.   Soto parked in the school

parking lot, directly in front of an opening in the outer fence

around the ballfield.   The opening provided access to a path

that, in turn, led down the first base side of the field, behind

some bleachers and eventually out to American Legion Highway.

Talbot, Soto, Franklin, and Bethel each grabbed a couple of

beers from the cooler in Soto's truck and, along with Bruzzese,

proceeded down the path to the bleachers, where they remained,

talking and drinking.   The area was poorly lit and none of the

officers was in uniform.   Talbot and Soto, however, were

carrying their department-issued firearms, .40 caliber Glock 22

pistols.   At some point while they were at the bleachers, Soto

gave his sweatshirt to Bruzzese because she was cold, leaving

his holster and firearm openly visible. 4



     4
       Franklin testified that he left his firearm in a backpack
in the back seat of Soto's truck. Bruzzese testified that her
firearm was at her home in a safe.
                                                                    5


     Iacoviello belonged to a neighborhood "crew" consisting of

defendant James Heang, Dararin Heang (known as Johnny), 5 Thomas

Papandrea, and Derek Lodie.   They referred to themselves as

"Broadway," and although they were not a gang, they were on good

terms, and associated, with a gang known as the "Bloods."

Johnny, James's older brother, was the only one from Broadway

who was also a member of the Bloods. 6    That night, Iacoviello,

Johnny, Papandrea, and Lodie were "hanging out" with others and

had been drinking at Amanda McNeil's house.

     After the Talbot group had been at the bleachers behind the

high school for a period of time, they observed a person

approaching on foot along the path.      The descriptions of what

transpired next differed in various respects from witness to

witness.   It can be determined from the record, however, that a

male in a red shirt and hat, later identified as Lodie, 7 came

down the path from the direction of Soto's parked truck and

traveled behind the bleachers where the Talbot group was

     5
       Because they share a surname, we will refer to the Heang
brothers as James and Johnny to avoid confusion.
     6
       The Bloods were rivals of another gang known as the
"Crips." The Crips, meanwhile, were associated with a crew
known as "Northgate," named after a Revere apartment complex
with that name. In early September, 2007, members of Broadway,
including Iacoviello, James, and Johnny, had engaged members of
Northgate in a brawl in front of Revere High School.
     7
       The witnesses often referred to this person as the man in
the red shirt or the man in the red hat. We will refer to the
man in the red shirt as Lodie.
                                                                     6


gathered.    He was on his cellular telephone (cell phone) and had

a "limp" or "swagger."    Witnesses differed as to whether Talbot

or Lodie spoke first.    In any event, it appears that Talbot

said, "Blood killer," and Lodie did not respond but kept

walking.    Someone in the Talbot group said out loud that the

person walked like a gangster, to which Lodie responded, "Yeah,

a gangster, right."

     Lodie was communicating with Johnny over a cell phone as he

walked by the bleachers.    He told Johnny that there were people

in the field behind Revere High School "causing trouble,"

"running their mouths," and "disrespecting Bloods."    Lodie

thought they were a gang, and Johnny suspected it might be the

Northgate crew.    A few minutes later, Lodie called again and

Johnny could hear people in the background on Lodie's end

saying, "Blood killer."    At trial, Johnny testified that Lodie

did not ask for help, but he told Lodie to stay where he was and

they would pick him up "and start some trouble."    Iacoviello,

Papandrea, and Johnny then left McNeil's house in Papandrea's

motor vehicle.    On their way to the high school, Johnny and

Iacoviello stopped at the Heangs' home, where they retrieved a

nine millimeter Luger from a safe in James's room.    At that

time, James was asleep in another room.    From the time the three

left McNeil's house until they eventually arrived at Revere High

School, Johnny was in nearly constant communication with Lodie
                                                                        7


over their cell phones through a "direct connect" feature, 8 with

Johnny telling Lodie repeatedly to stay put at the field.

Johnny testified that he had decided to bring the gun to scare

the other people at the high school. 9

     A short time after the Talbot group's first encounter with

Lodie, Lodie reappeared at the field behind Revere High School

and another confrontation with the Talbot group ensued.        Once

again, the descriptions of what transpired differed in various

respects from witness to witness.    It can be determined from the

record, however, that Lodie returned, walking behind the

bleachers from the direction of American Legion Highway and

heading toward the school and Soto's parked truck.       As he passed

the bleachers, Lodie, who was on his cell phone, raised his

hands and said something to Talbot to the effect of, "[Y]ou're

going to see what's up now."    Talbot responded and engaged in a

verbal exchange with Lodie.    Lodie was waving his hands and

saying, "I represent, motherfucker.      I represent.   BK."   Talbot

immediately "got heated" and both he and Soto told Lodie, "Just

     8
       The direct connect feature, available on certain cell
phone models, allows two cell phone users to speak to one
another as if using walkie talkies.
     9
       Johnny testified that he had fired the Luger prior to
September 29, 2007, at night in a field near McNeil's house.
When he retrieved the gun from the safe in the early morning
hours of September 29, 2007, he was aware that there were three
bullets in it, because that was how many remained when he had
put it back in the safe after shooting it, and no one else had
subsequently handled it.
                                                                    8


get out of here.   If you know what's good, just get out of

here."   Talbot then started walking toward Lodie.   According to

Papandrea, while he, Iacoviello, and Johnny were walking toward

Lodie, he overheard Lodie on the other end of a cell phone,

using the direct connect feature, say that someone from the

other group at the field had "flashed a hammer," meaning that

they had showed a gun.   The three ran toward Lodie.   Soto saw

three "short kids, . . . wearing hooded sweatshirts" and with

bandanas or black masks covering their faces appear from behind

Soto's truck and stand in a line with Lodie.   Papandrea saw

Iacoviello pull out the Luger.   According to Soto, the three

approaching individuals got "pretty close" to Lodie, so that

they and Lodie were essentially in a line next to each other,

and "[t]hey shot at us . . . I saw a muzzle flash."

     Talbot was somewhat ahead and to the left of Soto when the

shot rang out.   It was at that point, "pretty simultaneously"

with the gunshot, that Soto realized for the first time that

Talbot had his firearm out.   As Soto had been following Talbot,

he had been more focused on Lodie and could not see what Talbot

was doing with his hands.   He did not see at what point Talbot

had actually unholstered his weapon.   Talbot was in a "firing

stance" when Soto first saw him with his weapon out.    As

described by Soto, Talbot had assumed a "side stance" with the

gun in his right hand, pointed toward the other group, and his
                                                                     9


right foot slightly back at an angle.    Soto, too, assumed a

firing stance and fired two or three times back at the other

group before moving to his right to take cover behind a trash

barrel.    Once behind the barrel, Soto looked to his left and saw

Talbot lying on the ground, not moving.    According to Soto,

Talbot was unresponsive from the moment he was shot.    During the

entire encounter with the other group, none of the officers ever

identified themselves as police.    Johnny heard a shot go off

behind his right shoulder.    When he heard the shot, he saw a

male from the Talbot group, who was facing them, "drop," falling

sideways toward the baseball field.    Then there was gun fire --

a "couple of" shots -- coming back at them from the Talbot

group.    As Johnny ducked and turned to run, he saw Iacoviello,

with the nine millimeter Luger in his hand, shoot two more times

in the air.    Johnny, Lodie, Iacoviello, and Papandrea then ran

back to Papandrea's vehicle and drove away.

     When Soto went to the aid of Talbot, Soto put his own Glock

on the ground.    He also noticed Talbot's firearm lying on the

ground, so he grabbed it and put it down next to his own.

Later that day, September 29, 2007, Talbot died.    The medical

examiner determined the cause of death to be a gunshot to the

head with injuries to the skull and brain.

     In the immediate hours after the shooting, two .40 caliber

discharged cartridges were recovered at the scene.    One was
                                                                    10


found on the ground near the trash barrel behind which Soto had

taken cover.    The other was found in that same trash barrel.     In

addition, a hole was observed in the front bumper of Soto's

pick-up truck and the front driver's side tire was flat.    It

appeared that a bullet had passed through the bumper and into

the tire.    After the State police towed the truck to the State

police laboratory in Danvers, they discovered a spent lead

projectile in the tire.    Upon examination, the State police

determined that it was consistent with a .40 caliber bullet, but

it was too damaged to allow for any further conclusions.

     Johnny and Iacoviello returned to the Heangs' home and put

the nine millimeter Luger back in the safe.    Johnny then went to

another room, woke James up, and told him, "[W]e just shot

somebody."    James, who was only partly awake, told Johnny to

leave him alone and went back to sleep.    Later that day, a

friend of the group disassembled the gun and disposed of it in

various storm drains.

     Sergeant Brian Canavan of the State police ballistics unit

later examined both police-issued firearms to determine how much

ammunition was in them.    Talbot's Glock contained fourteen live

bullets in a magazine and one live bullet in the chamber, for a

total of fifteen rounds of ammunition.    Soto's Glock contained

twelve live bullets in a magazine and one live bullet in the

chamber, for a total of thirteen rounds of ammunition.    Canavan
                                                                   11


test fired Talbot's and Soto's Glocks and examined the test

cartridges against the two .40 caliber cartridges found at the

scene.    Canavan was of the opinion that the two casings were

fired from Soto's Glock, not Talbot's.    Ultimately, only one

spent bullet was ever recovered at the scene (in addition to the

one recovered from Talbot's body).

     The police recovered gun pieces from the storm drains,

including two Hi-Point firearm parts (a slide and a barrel).

Canavan examined them and determined that they came from a nine

millimeter Luger.    Using the pieces found in the storm drains,

as well as extra parts the State police maintained in their own

stock, Canavan rebuilt the weapon.    Canavan test fired the

rebuilt nine millimeter Luger to obtain test-fired projectiles

and cartridges.    He then examined the test cartridges against

the two nine millimeter casings found at the scene and was of

the opinion that the latter had been fired using the recovered

Hi-Point firearm parts.    He also examined the bullet recovered

from Talbot's body during the autopsy, but could not determine

exactly what gun it had been fired from, although it did have

marks reflecting the rifling system unique to Hi-Point firearms.

     2.   Absence of jury instruction on self-defense.   "A

defendant is entitled to a self-defense instruction if any view

of the evidence would support a reasonable doubt as to whether

the prerequisites of self-defense were present."    Commonwealth
                                                                   12


v. Pike, 428 Mass. 393, 395 (1998).   "In determining whether

sufficient evidence of self-defense exists, all reasonable

inferences should be resolved in favor of the defendant."       Ibid.

"[W]e do not balance the testimony of the witnesses for each

side, nor do we consider the credibility of the

evidence."   Commonwealth v. Santos, 454 Mass. at 773.   "The

evidence bearing upon self-defense may be contained in the

Commonwealth's case, the defendant's case, or the two in

combination."   Commonwealth v. Galvin, 56 Mass. Ap. Ct. 698, 699

(2002).   See Santos, supra ("The defendant is entitled to an

instruction on self-defense with a dangerous weapon if the

evidence, from any source, would warrant a finding in his favor

on that issue").   "[W]hether the evidence raises a reasonable

doubt as to the predicates for self-defense is often a complex

determination and . . . a trial judge should 'err on the side of

caution in determining that self-defense has been raised

sufficiently to warrant an instruction.'"   Galvin, supra at 701,

quoting from Commonwealth v. Toon, 55 Mass. App. Ct. 642, 644

(2002).   Given the circumstances of this case, the jury should

have been instructed on self-defense.

     When viewed in the light most favorable to Iacoviello, the

evidence reveals that a gunfight broke out behind Revere High

School in the early morning hours of September 29, 2007, in a

dark and somewhat confined space, between individuals in two
                                                                     13


groups who were agitated and intoxicated, and that lasted only a

matter of seconds.    The percipient witnesses had different

vantage points and could reasonably be viewed as having certain

allegiances and self-interests, including cooperation agreements

and the simple desire not to be prosecuted, that might color

their testimony.    Given all of these circumstances, it is not

surprising that the percipient witnesses provided somewhat

conflicting accounts of the critical events -- accounts that, in

many cases, changed over time.

     More specifically, there was evidence that, viewed in the

light most favorable to Iacoviello, the Talbot group, and Talbot

in particular, precipitated events during the first encounter

with Lodie and continued to act aggressively during the

subsequent encounter with Lodie, Iacoviello, and the others from

the group.    At no point during either encounter did any of the

members of the Talbot group, who were dressed in civilian

clothes and believed by the Iacoviello group to be members of a

rival gang or crew, ever announce that they were police

officers.    A gun was openly visible in Soto's holster.   Moments

before the shooting broke out, Talbot, who was heated and

refused pleas to let matters be, advanced on Lodie and headed in

the direction from which Iacoviello, Papandrea, and Johnny

appeared.
                                                                    14


     Still further, there was evidence that, when viewed in the

light most favorable to Iacoviello, Talbot not only drew his

Glock during the second encounter, he also assumed a "firing

stance," aimed at the Iacoviello group, and fired as many as two

to three shots.    No one could say exactly when Talbot drew his

weapon. 10   There was evidence, however, that the first shot fired

from the Iacoviello group struck Talbot in the head, that the

nature of the wound would have immediately rendered Talbot

incapable of volitional movement, and that, in fact, he was

unresponsive from the moment he was shot.    If that evidence was

believed, a reasonable juror could conclude that Talbot not only

pulled out his gun, but also assumed a firing stance aiming in

the direction of the Iacoviello group, and fired before he

himself was shot.    A reasonable juror also could infer from this

that Talbot pulled out his Glock and aimed it at the Iacoviello

group, and possibly even fired it, before Iacoviello pulled out

the nine millimeter Luger.    That is what Papandrea told the

police had occurred when he gave a recorded statement two days

after the shooting, on October 1, 2007.    Specifically, Papandrea

stated that he was behind both Iacoviello and Johnny as they

rounded the corner near Soto's truck and approached Lodie and

the Talbot group, that at that moment he heard the first gunshot


     10
       The Commonwealth conceded that Talbot's gun was out at
least by the time he was shot.
                                                                     15


ring out and it was coming toward his group, and that only then

did he see Iacoviello pull a gun from his waistband and fire one

shot. 11

      A self-defense instruction need only be given when deadly

force was used if the evidence warrants "at least a reasonable

doubt that the defendant:   (1) had reasonable ground to believe

and actually did believe that he was in imminent danger of death

or serious bodily harm, from which he could save himself only by

using deadly force, (2) had availed himself of all proper means

to avoid physical combat before resorting to the use of deadly

force, and (3) used no more force than was reasonably necessary

in all the circumstances of the case."    Commonwealth

v. Harrington, 379 Mass. 446, 450 (1980).    Based on the

foregoing facts, among others, there was at least a reasonable

doubt as to all three elements.

      a.   Iacoviello's actual belief.   Throughout the trial, the

judge expressed skepticism that a self-defense instruction was

warranted and ultimately deemed it "too speculative."    "A

      11
       The Commonwealth notes that when asked about this
statement at trial, Papandrea testified that it was not the
truth. The Commonwealth contends that the prior statement was
not admitted at trial for its truth. When Papandrea was
questioned about this prior inconsistent statement on cross-
examination, however, there was no objection lodged, meaning it
was admitted in evidence for all purposes. See Commonwealth v.
Keevan, 400 Mass. 557, 562 (1987); Commonwealth v. Jones, 439
Mass. 249, 261-262 (2003). The jury, therefore, were free to
believe the prior statement, the later statement, or neither
statement.
                                                                    16


defendant's actual belief that he was in imminent danger of

death or serious bodily harm from which he could only save

himself by using deadly force looks to the defendant's

subjective state of mind."    Commonwealth v. Toon, 55 Mass. App.

Ct. at 650.    Such belief may be determined by circumstantial

evidence.   Id. at 650-651.   Here, the aforementioned facts, if

believed, establish that when Iacoviello entered the scene near

Soto's truck, he found himself facing Talbot, who was in a

firing stance and aiming a gun in Iacoviello's direction.

Whether Talbot actually fired first or not, however, these

circumstantial facts, and the reasonable inferences drawn

therefrom, are sufficient to raise at least a reasonable doubt

that Iacoviello had a reasonable ground to believe, and actually

did believe, that he was in imminent danger of death or serious

bodily harm.

     b.   Duty to retreat.    There is also at least a reasonable

doubt as to whether Iacoviello availed himself of all proper

means to avoid physical combat before resorting to the use of

deadly force.    Here, there was evidence that Iacoviello entered

the dark pathway, where he would have been partially surrounded

by Soto's truck and two nearby fences, and, if believed, faced

Talbot, who was in a firing stance and who possibly fired off

one or more rounds.    This was sufficient evidence to put the

question before the jury, who would have been in the best
                                                                     17


position to determine whether, under the circumstances,

Iacoviello had an opportunity to avoid combat before firing a

weapon.   See Commonwealth v. Pike, 428 Mass. at 398-399.

     c.   Use of reasonable force.    "Ordinarily the question how

far a party may properly go in self defense is a question for

the jury, not to be judged of very nicely, but with due regard

to the infirmity of human impulses and passions."     Commonwealth

v. Kendrick, 351 Mass. 203, 211 (1966), quoting from Monize

v. Bagaso, 190 Mass. 87, 89 (1906).    Here, if it is believed

that Iacoviello found himself faced by Talbot aiming, and

possibly firing, a gun in his direction, that is sufficient to

put the question of the reasonableness of his response to a

jury.

     d.   Prejudice.   "Viewing the facts . . . in their totality

rather than in an isolated movement-by-movement

fashion," Commonwealth v. Barber, 18 Mass. App. Ct. 460, 465

(1984), we conclude that the failure to instruct the jury on

self-defense was error.   As the issue was preserved, we review

under the prejudicial error standard.    See Commonwealth

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

from Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983)

(error is not prejudicial only if we are "sure that the error

did not influence the jury, or had but very slight effect").

The events behind Revere High School on September 29, 2007,
                                                                   18


unfolded rapidly, in the dark, late at night, among individuals

who were all intoxicated.   The jury rejected the theory of

deliberately premeditated murder.   Had they chosen to believe

the evidence supporting self-defense, the jury also could have

acquitted Iacoviello altogether on the murder charge, and, as a

direct result, James on the charge of accessory after the fact.

The error was thus prejudicial.

     3.   Absence of jury instructions on manslaughter.    "If any

view of the evidence in a case would permit a verdict of

manslaughter rather than murder, a manslaughter charge should be

given."   Commonwealth v. Brooks, 422 Mass. 574, 578 (1996).

Once again, in assessing whether manslaughter instructions were

warranted, we consider the evidence in the light most favorable

to the defendant.   Commonwealth v. Groome, 435 Mass. 201, 220

(2001).   Iacoviello maintains that a voluntary manslaughter

instruction was warranted based on theories of excessive use of

force in self-defense and reasonable provocation upon sudden

combat.   He also maintains that an involuntary manslaughter

instruction was warranted on theories of wanton or reckless

conduct in the firing of his weapon, claiming that there was

minimal evidence that he was intentionally aiming at Talbot's

group and that intoxication impaired his mental processes.

     a.   Voluntary manslaughter.   Voluntary manslaughter is an

unlawful killing "arising not from malice, but 'from . . .
                                                                    19


sudden passion induced by reasonable provocation, sudden combat,

or excessive force in self-defense.'"     Commonwealth v. Carrion,

407 Mass. 263, 267 (1990), quoting from Commonwealth v. Nardone,

406 Mass. 123, 130-131 (1989).

     i.    Excessive force in self-defense.   As noted in our

discussion of self-defense, supra, the extent to which one who

is threatened may go in defending himself is ordinarily a

"question[] of fact for the jury, to be decided in light of all

of the existing circumstances."      Commonwealth v. Shaffer, 367

Mass. 508, 512 (1975).   Just as we are of the opinion that the

jury should have been permitted to determine whether the

shooting of Talbot was committed in self-defense and was

therefore excusable, we are of the opinion that the jury should

have been permitted to determine whether the shooting was

committed through the use of excessive force in self-defense so

as to mitigate the crime from murder to manslaughter.     As with

our conclusion regarding the absence of a self-defense

instruction, this error was prejudicial.

     ii.   Reasonable provocation.    Reasonable provocation is

provocation that "would have been likely to produce in an

ordinary person such a state of passion, anger, fear, fright, or

nervous excitement as would eclipse his capacity for reflection

or restraint."    Commonwealth v. Walden, 380 Mass. 724, 728

(1980).    Such an instruction is warranted "if there is evidence
                                                                   20


of provocation deemed adequate in law to cause the accused to

lose his self-control in the heat of passion, and if the killing

followed the provocation before sufficient time had elapsed for

the accused's temper to cool."   Commonwealth v. Andrade, 422

Mass. 236, 237 (1996), quoting from Commonwealth v. Schnopps,

383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).     The

defendant's actions must be "both objectively and subjectively

reasonable.   That is, the jury must be able to infer that a

reasonable person would have become sufficiently provoked and

would not have 'cooled off' by the time of the homicide, and

that in fact a defendant was provoked and did not cool

off."   Commonwealth v. Groome, 435 Mass. at 220, quoting

from Commonwealth v. McLeod, 394 Mass. 727, 738, cert. denied

sub nom. Aiello v. Massachusetts, 474 U.S. 919 (1985).

     As noted above, it can be inferred from the evidence,

viewed in the light most favorable to Iacoviello, that when

Iacoviello entered the scene near Soto's truck, he found himself

facing Talbot, who was in a firing stance, aiming a gun in

Iacoviello's direction, and possibly even firing at him.    From

an objective standpoint, it is hard to imagine that this would

not have produced in an ordinary person such a state of passion,

anger, fear, fright, or nervous excitement as to override such a

person's capacity to reflect and might cause that person to fire

back in Talbot's direction.
                                                                  21


     The law, however, also requires subjective evidence that

Iacoviello actually did lose control in a heat of passion,

thereby leading him to immediately fire his weapon back at

Talbot.   The Supreme Judicial Court has stated that "[t]he

theory of self-defense does not 'automatically' incorporate a

theory of reasonable provocation; for example, a provocation

instruction is not appropriate when a defendant claims to have

acted in self-defense but presents no evidence about his

emotional state, or when a defendant argues self-defense but

denies experiencing strong feelings of passion, anger, fear,

fright, or nervous excitement."   Commonwealth v. Acevedo, 446

Mass. 435, 448 (2006).   See Commonwealth v. Glover, 459 Mass.

836, 841-842 (2011) ("Voluntary manslaughter on a theory of

reasonable provocation is closely related to voluntary

manslaughter on a theory of excessive use of force in self-

defense. . . .   But the two theories are also distinct, and

evidence may support one but not the other").   Evidence may

establish that a defendant acted in self-defense based on a

"calculus of survival," not because he was blinded by a heat of

passion based on reasonable provocation, and in such cases an

instruction on reasonable provocation is not warranted.    See,

e.g., Commonwealth v. Vinton, 432 Mass. 180, 189 (2000)

(provocation instruction not warranted where defendant's

"argument is based on asserting [his] calculus of survival, not
                                                                   22


any blindness of heat of passion on reasonable

provocation"); Commonwealth v. Colon, 449 Mass. 207, 222, cert.

denied, 552 U.S. 1079 (2007) (defendant, who focused his case on

self-defense and "testified that he shot the victim because he

had been told that the victim was armed and he thought he 'was

going for a gun,'" acted based on calculus of survival, not

blindness brought on by heat of passion on reasonable

provocation).     Here, the evidence, when viewed in the light most

favorable to Iacoviello, raises a reasonable doubt as to whether

he acted in self-defense based on his calculus of survival.

     b.      Involuntary manslaughter.   "[W]here a defendant is

charged with murder, an instruction on involuntary manslaughter

is appropriate if any 'reasonable view of the evidence would

[permit] the jury to find "wanton [or] reckless" conduct rather

than actions from which a "plain and strong likelihood" of death

would follow.'"      Commonwealth v. Tavares, 471 Mass. 430, 438

(2015), quoting from Commonwealth v. Braley, 449 Mass. 316, 331

(2007). 12    If an involuntary manslaughter instruction is

required, evidence of intoxication can be considered by the jury

     12
       "Wanton or reckless conduct is 'intentional conduct, by
way either of commission or of omission where there is a duty to
act, which conduct involves a high degree of likelihood that
substantial harm will result to another.' Commonwealth v.
Welansky, 316 Mass. 383, 399 (1944). The degree of risk of
physical harm for involuntary manslaughter is thus 'a high
degree of likelihood' of 'substantial harm,' whereas for third
prong malice there must be a 'plain and strong likelihood of
death.'" Commonwealth v. Earle, 458 Mass. 341, 347 (2010).
                                                                    23


in connection with whether the defendant knew, or should have

known, that his conduct created a high degree of likelihood that
                                            13
substantial harm would result to another.        See Commonwealth

v. Flynn, 37 Mass. App. Ct. 550, 555-556 (1995) (evidence of

voluntary intoxication is factor whenever Commonwealth bears

burden of establishing knowledge of defendant, as in case of

involuntary manslaughter on theory of wanton or reckless

conduct).

     i.    Wanton or reckless conduct.   "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."    Commonwealth v. Alebord, 68 Mass. App. Ct. 1, 7

(2006).    We preface our discussion by noting that there was

sufficient evidence from which a jury could reasonably infer

that Iacoviello pointed a loaded gun in the direction of the

Talbot group.    In viewing the evidence in the light most

favorable to Iacoviello and drawing all reasonable inferences in

his favor, however, we cannot ignore that there were also other

reasonable inferences that could have been drawn.




     13
       Even where there is evidence of intoxication, the
evidence must warrant an instruction on involuntary manslaughter
before an instruction on intoxication is given. See
Commonwealth v. Sires, 413 Mass. 292, 302-303 (1992);
Commonwealth v. Ferreira, 417 Mass. 592, 599 (1994).
                                                                      24


     With the exception of an alleged jail house confession, 14

there was no direct testimony that Iacoviello pointed the nine

millimeter Luger at Talbot or the Talbot group.    No one from the

Talbot group could specifically testify that they witnessed a

gun in Iacoviello's hands.    Meanwhile, Papandrea testified at

trial that he heard two "bangs" and saw a flash coming from

slightly behind him to his side, at which point he turned and

saw Iacoviello "with the gun in his hand . . . pointing it."      He

also had previously stated that Iacoviello only drew and fired

the gun after being fired on by the Talbot group.    Johnny

testified that he heard a shot go off behind his right shoulder,

at which point he saw a guy from the other group "drop."      Then,

after shots were fired back, he ducked and turned to run,

whereupon he saw Iacoviello shoot the nine millimeter Luger two

times in the air.   A little more than one and one-half days

later, two (not three) spent nine millimeter casings were

located at the scene, along with a fresh abrasion overhead on

the branch of a tree.    Finally, Johnny testified at trial that

his group only brought the gun with them to the high school to

scare the other group.

     14
       At trial, the Commonwealth called Randy Furtado, who
testified in exchange for a reduction in a plea recommendation,
that Iacoviello had confided in him when the two shared a cell
at the Dartmouth house of correction for a few days in May,
2008. Furtado testified that Iacoviello admitted that he shot
Talbot and demonstrated this to Furtado by holding his hands
straight out in front of him.
                                                                  25


     Where there is evidence that the defendant was not pointing

or aiming a gun at the victim, but rather was aiming in the air

or at the ground, an involuntary manslaughter instruction based

on a theory of wanton or reckless conduct is warranted.    See,

e.g., Commonwealth v. Ferrara, 368 Mass. 182, 190 (1975)

(inference of involuntary manslaughter was warranted where

witness testified that he did not think defendants were aiming

rifle at victim); Commonwealth v. Greaves, 27 Mass. App. Ct.

590, 594 (1989) (upholding reduction of jury verdict to

manslaughter where judge believed "the evidence that the

defendant was a considerable distance away from the building

when he shot the rifle and that he was aiming at the roof").

     The same has been true where there has been evidence that a

defendant engaged in wanton or reckless conduct for the purpose

of scaring, not shooting, a victim.   See Commonwealth

v. Martinez, 393 Mass. 612, 614 (1985) (instruction on

involuntary manslaughter warranted where "the jury could have

found that defendant threw a lighted newspaper at one of the

victims intending no more than to frighten or upset the

victim").   As there was evidence here from which a jury

reasonably could have inferred both that Iacoviello brought the

gun to the high school for the purpose of scaring what turned

out to be the Talbot group and that he did not aim the gun at

the Talbot group once he arrived, an involuntary manslaughter
                                                                      26


instruction was warranted.      Given the obvious consequences to

Iacoviello, the failure to give such an instruction was

prejudicial.

     ii.   Intoxication.    Having determined that an involuntary

manslaughter instruction was warranted, we need not labor long

in determining that an accompanying instruction on intoxication

was warranted as well.     There was evidence that Iacoviello had

been drinking heavily in the hours before the encounter and that

he was intoxicated.   In fact, the trial judge instructed the

jury that they should consider any credible evidence of the

effect on Iacoviello of his consumption of alcohol and drugs in

determining whether the Commonwealth met its burden of proof

with respect to the issues of intent, knowledge, and deliberate

premeditation.   It follows that a similar instruction would be

warranted in connection with an involuntary manslaughter

instruction.

     4.    Adjutant evidence.    Iacoviello contends that the judge

abused his discretion when he excluded Iacoviello's proffer of

evidence of a prior incident, on October 31, 2006, where Talbot,

while on duty, discharged his firearm nine times at James

Bombard, whom Talbot and other Revere police officers were

attempting to apprehend for allegedly assaulting some

individuals at knife point.      Contemporaneous reports from other

Revere police officers reflect that Talbot stated at the time
                                                                    27


that after identifying himself as a police officer and drawing

his firearm, he was forced to shoot because Bombard charged him

with a knife.    Iacoviello intended to call two police officers

and Bombard as witnesses.    Bombard reportedly would testify that

he came around a corner and saw an unidentified individual

pointing a gun at him.    Bombard turned and ran, at which point

the person shot at him multiple times.    Bombard also would have

reportedly testified that he never pulled a knife on that

individual and that the individual, who was in civilian clothes,

never identified himself as a police officer.    Not one of the

nine shots hit Bombard.    The Commonwealth, in turn, indicated

that it would need to call numerous witnesses if evidence of the

Bombard incident was admitted, including other responding police

officers and the individuals Bombard had reportedly assaulted.

     "'[W]here the identity of the first aggressor is in dispute

and the victim has a history of violence, . . . the trial judge

has the discretion to admit evidence of specific acts of prior

violent conduct that the victim is reasonably alleged to have

initiated, to support the defendant's claim of self-defense,'

regardless whether the defendant knew of the victim's prior

violent acts."    Commonwealth v. Chambers, 465 Mass. 520, 527

(2013), quoting from Commonwealth v. Adjutant, 443 Mass. 649,

664 (2005).   "[S]uch evidence 'may be admitted as tending to

prove that the victim and not the defendant was likely to have
                                                                       28


been the "first aggressor"' because it may show 'that the victim

acted in conformance with his character for violence.'"     Ibid.,

quoting from Commonwealth v. Adjutant, supra.      This type of

evidence is referred to as Adjutant evidence.

     Here, the judge denied Iacoviello's proffered evidence

because (1) the judge believed that the fact that Talbot was

acting in his capacity as a police officer during the prior

incident with Bombard differentiated it from the type of

evidence envisioned as admissible under Adjutant, and (2) the

facts of the Bombard incident were disputed, thereby requiring

the testimony of numerous witnesses and a trial within a trial.

It was also clear, however, that the judge's decision was

affected by his ongoing skepticism regarding the predicate issue

of the viability of Iacoviello's claim of self-defense.     Having

concluded that a self-defense instruction was warranted, we

leave it for the judge at a new trial to reconsider whether the

proffered Adjutant evidence should be admitted.

     5.    Consanguinity.   Because we are vacating Iacoviello's

conviction of murder in the second degree, we must, by

necessity, also vacate James's conviction of accessory after the

fact.     See parts 2 and 3, supra.   See also note 16, infra.    We

address James's argument concerning the defense of

consanguinity, which is likely to arise in the event of a

retrial.
                                                                  29


     James contends that the trial judge committed prejudicial

error by refusing to allow him to assert a defense of

consanguinity to the charge of accessory after the fact.    See

G. L. c. 274, § 4.   We disagree but conclude that there was a

risk of confusion on the part of the jury that should be avoided

at any new trial.    General Laws c. 274, § 4, as appearing in St.

1943, c. 488, § 1, provides, in pertinent part:    "Whoever, after

the commission of a felony . . . assists the principal felon

. . . shall be an accessory after the fact. . . .    The fact that

the defendant is the husband or wife, or by consanguinity,

affinity or adoption, the parent or grandparent, child or

grandchild, brother or sister of the offender, shall be a

defense to a prosecution under this section."

     As we understand James's argument, he believes that his

older brother, Johnny, could have been, like Iacoviello, a

"principal felon" in Talbot's death.   Taking the next step,

James maintains that because Johnny could have been a principal

felon and Johnny is his brother, the statutory defense of

consanguinity should have been available to him.    In other

words, if the jury found that Johnny could have been a principal

felon and that it was Johnny whom James intended to aid in

avoiding or escaping detention, arrest, trial, or punishment in

connection with Talbot's death, then the statute required the

jury to find James not guilty.   James maintains that the jury
                                                                  30


would have to find him not guilty under those circumstances even

if they found that the aid he rendered also helped Iacoviello. 15

Neither argument is supported by the plain language of G. L.

c. 274, § 4, which provides that the principal felon is the

person or persons whom the Commonwealth alleges, and ultimately

proves beyond a reasonable doubt, 16 committed the underlying

felony.   Here, the indictment charging James as an accessory

after the fact identified Iacoviello as the principal felon.

Contrary to the express language of G. L. c. 274, § 4, James is

not related to the principal felon named in the indictment.

There is nothing in this language to suggest that simply because

another individual, who theoretically could have been charged as

a principal felon, is related by consanguinity to the defendant,




     15
       James requested the following instruction regarding the
consanguinity issue:
          "It is absolutely necessary that you find beyond a
     reasonable doubt that the defendant specifically intended
     to aid Iacoviello and not his brother Johnny Heang. This
     is so because the statute involved also provides an
     affirmative . . . defense to one who aids a family member.
     Therefore, if you find that the defendant was rendering aid
     to his brother, Johnny Heang and this aid also helped the
     defendant, Iacoviello, you must find the defendant not
     guilty."
     16
       To convict someone as an accessory after the fact, "it
[is] necessary to prove beyond a reasonable doubt that . . . the
alleged principal . . . was guilty." Commonwealth v. Borans,
379 Mass. 117, 148 (1979), quoting from Commonwealth v.
Reynolds, 338 Mass. 130, 135 (1958).
                                                                   31


that the defendant cannot be charged, convicted, or punished for

aiding the principal felon identified in the indictment.

     As for his second argument, we agree with the judge that it

is foreclosed by the decision in Commonwealth v. Doherty, 353

Mass. 197 (1967).   Here, the fact that the same acts also might

have assisted his brother Johnny does not preclude James's

conviction under the indictment charging him with aiding

Iacoviello.   Id. at 205.   The judge did not err in denying

James's requests to raise, and instruct the jury on, the

statutory defense of consanguinity.

     We note that, notwithstanding the unavailability of the

statutory defense of consanguinity, nothing prevented James from

arguing that he intended to aid his brother Johnny, and not

Iacoviello, as a defense to the accessory after the fact charge.

His right to raise such a defense, however, would not have been

predicated on his consanguinity with Johnny.   Rather, it would

have been legally predicated on the fact that Johnny was not the

principal felon the Commonwealth alleged James was aiding in the

specific accessory after the fact charge before the court.

     The instruction the trial judge gave the jury here on the

accessory after the fact charge focused on whether James

intended to, and did, aid Iacoviello:

     "In order to prove the defendant James Heang guilty of this
     crime, the Commonwealth must prove four elements -- four
     elements -- beyond a reasonable doubt; first, that Robert
                                                                     32


     Iacoviello -- Robert Iacoviello -- is guilty of the crime
     which James Heang is accused of having aided, namely, the
     murder of Daniel Talbot; second, that the defendant James
     Heang assisted the perpetrator of the murder of Daniel
     Talbot, allegedly, Robert Iacoviello, following the
     commission of the crime; third, that the defendant James
     Heang provided such assistance with the specific intent --
     the specific intent -- that the perpetrator, allegedly,
     Robert Iacoviello, avoid or escape arrest, detention, or
     prosecution; fourth, and finally, that the defendant James
     Heang rendered such assistance with knowledge of the
     identity of that perpetrator and of the substantial facts
     of the killing of Daniel Talbot."

This instruction was essentially proper.      In a case like the

present one, however, where the facts reasonably suggest that a

defendant could have intended to aid someone other than the

named principal felon, we think that additional instructions on

the intent element are warranted.      In particular, additional

instructions should focus on whether the defendant provided aid

to assist the named principal felon or whether the defendant's

specific intent was to aid someone other than the named

principal felon.

     6.   Conclusion.   On the indictment charging Iacoviello with

murder, the judgment is vacated and the verdict is set aside.

On the indictment charging James Heang with accessory after the

fact, the judgment is vacated and the verdict is set aside.        The

judgments are otherwise affirmed. 17



     17
       To the extent that we have not addressed other points
made by the parties, they "have not been overlooked."
                                                                  33


                                   So ordered.




Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389
(2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78
(1954). We have considered them and found them to be without
merit.
