Commonwealth v. Arias (Lawyers Weekly No. 11-132-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11‑P‑2170 Appeals Court COMMONWEALTH vs. RANDY ARIAS. No. 11‑P‑2170. Essex. March 21, 2013. ‑ October 30, 2013. Present: Katzmann, Meade, & Sullivan, JJ. Homicide. Assault by Means of a Dangerous Weapon. Practice, Criminal, Instructions to jury, Objections to jury instructions. Defense of Others. Indictments found and returned in the Superior Court Department on December 17, 2008. The cases were tried before Richard E. Welch, III, J. Theodore F. Riordan for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth. MEADE, J. After a jury trial, the defendant was convicted of murder in the second degree in the shooting death of Julio Zuniga (Zuniga), in violation of G. L. c. 265, § 1, and assault and battery by means of a dangerous weapon causing serious bodily injury to Roberto Francisco Sanchez Rios (Sanchez Rios), in violation of G. L. c. 265, § 15A(c).[1] The principal issue at trial was the identity of the shooter. On appeal, the defendant claims the judge failed to properly instruct the jury on defense of another. We conclude the defendant’s claim was not preserved for appeal. The judge’s defense of another instruction, when considered as a whole against the backdrop of the trial, would have been interpreted by a reasonable juror to have adequately conveyed the nature of the defense and its components. Even if the instructions were infirm, given the nature of the defense was that the defendant did not shoot anyone and defense of another was not a live issue that was contested at trial, there was no substantial risk of a miscarriage of justice. We affirm. 1. Background. a. The club. At approximately 11:00 P.M. on October 11, 2008, Zuniga went to a nightclub in Lawrence to watch a televised soccer game. He was accompanied by his brothers, Francisco “Paco” Zuniga (Paco) and Altero Zuniga (Altero),[2] his cousin Sanchez Rios, and two friends, Oscar Bolanos and Jesus Estrella. Zuniga’s group arrived at the club courtesy of Paco’s Ford Explorer sport utility vehicle (SUV). At 12:15 A.M. on October 12, the defendant, Frederich Frias, and Edward Rosario entered the same club. The defendant’s group arrived in a light brown Acura sedan driven by, and registered to, the defendant. The defendant’s group spent some time in the downstairs area of the club, then proceeded upstairs; […]