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Man who shot newly returned Afghanistan vet to death still a murderer, just not a first-degree one, court rules

The Supreme Judicial Court today upheld a man's murder verdict for the shooting death of Stephen Perez in the Theater District in 2012, but reduced his sentence from first degree to second degree, which means he could one day apply for parole.

In its ruling, the state's highest court rejected arguments by Peter Castillo to throw out the sentence completely. Castillo's attorney argued Castillo was acting to save the life of one of his friends, who was exchanging blows with Perez, but the court said you can't use that defense when the person involved had started the fight and was escalating it.

Perez, a Revere resident only weeks back from Afghanistan, was walking down Tremont after closing time on April 28, 2012, with some friends. They had stopped for a group photo when, according to the court summary:

A woman in a passing car, Jasmine Montero, shouted, "you fucking white boys,"at the group, and the victim responded by shouting back, "fat spic."

Montero got out of the car, started screaming at Perez, her car emptied and soon the fight was on. Castillo and Perez exchanged blows.

But things were just breaking up when one of Castillo's friends then punched one of Perez's friends, the fight began anew and one of Castillo's pals and Perez started slugging it out. And that's when Castillo pulled out a gun and shot Perez once in the back, from a few feet away, severing his abdominal aorta, which caused him to die from internal hemorrhaging, even though he was brought to Tufts Medical Center around the corner.

Castillo and his friends got back in their car, a minivan, and drove to a party in Lynn where, according to the court, they cleaned the gun. Castillo left and managed to get to the Dominican Republic, where he was arrested in 2015 and then returned to Boston for trial.

In September, 2016, a Suffolk Superior Court jury convicted him of first-degree murder, after prosecutors said he had committed "an unlawful killing with malice aforethought extreme atrocity or cruelty."

The court said there's no question that Castillo had "malice aforethought;" in fact, there was "overwhelming evidence" of it and so he's a murderer:

The defendant admitted that he believed he was the only person at the scene with a gun, that he knew the gun was loaded, and that he pointed it at the victim and fired. There is no question either that he intended to kill or seriously injure the victim,or that,in the circumstances known to the defendant, a reasonable person would have known that his conduct created a plain and strong likelihood of death.

But was the murder an example of "extreme atrocity or cruelty?" The court rule no, at least not based on the specific reason cited by Suffolk County prosecutors.

In a 1983 murder case the SJC defined seven specific examples of evidence that could be used to prove a murder was of this type, including "consciousness and degree of suffering of the victim." In this case, prosecutors sought to prove that by introducing testimony that, in the short ride in an ambulance to the emergency room, Castillo appeared to still have consciousness and kept grabbing for things, including a paramedic, as if he were in great pain.

But, the court said, allowing this particular standard to remain could one day lead to injustice: What if somebody shot a person in the leg, specifically to disable them, but not kill them, but the person then died a painful death? How could that justify a first-degree murder sentence, the justices asked. It couldn't, they continued, striking that specific example as a way of proving a murder involved "extreme atrocity or cruelty."

The new standard means prosecutors now have to use one of the six remaining potential criteria, which include: "indifference to or taking pleasure in the victim's suffering, extent of physical injuries, number of blows, manner and force with which delivered, instrument employed, and disproportion between the means needed to cause death and those employed. "

Because prosecutors relied on only one of the seven possible reasons in Castillo's case, and it turned out not to be the best one, the justices said there was minimal evidence of "extreme atrocity or cruelty" given to the jury and so justice demands they reduce Castillo's sentence from first- to second-degree murder. It still carries a life sentence, but unlike first-degree murder, Castillo will one day be able to petition for parole, although there's no guarantee he'll get it.

As for Castillo's other argument, that he was acting "in defense of another," the court said you can't claim that as a defense when the guy you're allegedly acting to save wouldn't be able to claim self defense himself.

The guy Castillo was trying to defend, in fact, started punching Perez and, if anything, was escalating his attack when Castillo fired, the court said.

Where a reasonable person, seeing what the third party saw, should recognize that the person defended would not be entitled to claim self-defense, the third party cannot claim defense of another. ... Here, the defendant's own testimony suggests that Marlon initiated the fight and made no attempt to withdraw. In fact, Marlon continued to approach the victim and to escalate the fight even after being punched. Under such circumstances, no reasonable person would believe that Marlon would have been entitled to use deadly force in his defense.

PDF icon Complete ruling162.68 KB

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