United States Court of Appeals
For the First Circuit
No. 00-2305
ROBERT E. FORTINI, III,
Petitioner, Appellant,
v.
PAUL B. MURPHY,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Lynch and Lipez, Circuit Judges.
Robert L. Sheketoff with whom Sheketoff & Homan was on brief
for petitioner.
Thomas W. Dee, Assistant Attorney General, Criminal Bureau,
with whom Thomas F. Reilly, Attorney General, was on brief for
respondent.
July 27, 2001
BOUDIN, Chief Judge. This is an appeal by Robert
Fortini from a federal district court order dismissing Fortini's
petition for a writ of habeas corpus. Fortini is currently
serving a life sentence, having been convicted in state court of
second degree murder. Fortini's claim depends critically on the
facts of the case which we describe in some detail, identifying
the few significant details that were disputed.
In 1992, Fortini lived in a second-floor apartment with
his girlfriend, Jacie Hall, and her cousin, Tammy Peckham, in
Plymouth, Massachusetts. Between 5 p.m. and 9 p.m. on June 22,
Ceasar Monterio--Fortini's eventual victim--came to the
apartment on at least three occasions looking for Peckham. On
one occasion Fortini went downstairs and told Monterio that
Peckham was not at home. Shortly after Monterio's last
appearance, Hall heard the occupants of a car shouting
profanities as the vehicle drove past the house and she told
Fortini about the incident.
After spending the evening watching television and
cleaning his shotgun, Fortini went to bed at 11:30 p.m. At
11:50 p.m., he was awoken by a car horn and a male voice,
screaming curses and racial epithets towards the house (Fortini
is white; Monterio was black). Fortini got out of bed, got
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dressed and proceeded down to the his first-floor front porch.1
After sitting on the porch for a period, he returned to his
apartment and, at 12:48 a.m., called the police to report the
earlier disturbance. The police did not dispatch officers to
the house, but the dispatcher told Fortini that if he got a
license "plate or something . . . [the police could] check them
out."
Fortini then retrieved his shotgun and ammunition and
returned to his seat on the downstairs porch. Although the
steps to the second floor were lighted, the porch was not. At
approximately 1:15 a.m., Monterio and a friend (Dana Lopes)
returned to the house. According to Fortini, he heard two sets
of footsteps and a whispered conversation. He then heard a
voice say, "watch this shit, we're going to wake some
motherfuckers up." Shortly thereafter, he saw someone (who
proved to be Monterio) start up the stairs moving rapidly to the
porch.
As Monterio reached the porch, Fortini stood up and
took a couple of steps forward towards the porch steps with the
1There is some uncertainty as to whether Fortini had the
shotgun when he first went down to the porch or took it down
only after he called the police. Compare Commonwealth v.
Fortini, 692 N.E.2d 110, 111 (Mass. App. Ct. 1998), with id. at
112. The trial transcript suggests that he went down with the
shotgun after he called the police.
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shotgun in his hands. According to Fortini, he then yelled
"hey, get the fuck out of here" to the person on the porch.2 In
response, Fortini said that Monterio stared at Fortini and the
gun, centered his attention on the gun, and then lunged towards
Fortini and the weapon. Fortini took one step backwards and
fired, striking Monterio in the chest and killing him almost
instantly.
Fortini was charged with murder in Massachusetts
Superior Court. In pretrial proceedings, Fortini argued that he
believed Monterio was attempting to take the gun away from him
and that he shot Monterio in self defense. In support of this
theory, Fortini filed a motion in limine asking to introduce
evidence of Monterio's acts only five to seven minutes before he
stepped onto Fortini's porch and was killed. The evidence that
Fortini wanted to offer was this:
According to witnesses, shortly before Monterio arrived
at Fortini's house, Monterio ran onto a basketball court where
four white males were playing night basketball. Monterio then
struck, or attempted to strike, all four men. After his
2 Whether Fortini said anything before shooting Monterio is
not certain: Monterio's companion (Lopes) said that Fortini did
not say anything; Fortini's girlfriend (Hall) said that she did
not hear anything before the gunshot, but she also testified
that she was asleep at the time. By contrast, Fortini's next
door neighbor testified that she heard Fortini yelling before
the gunshot.
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companion (Lopes) pulled him away, Monterio yelled, "I'll kill
them all. Remember my face, I'm Ceasar Monterio. I'm the
baddest motherfucker in town." Immediately after the
confrontation, Monterio and Lopes walked towards Fortini's
house. On the way, a police officer heard Monterio again yell,
"I'm bad. I'm the baddest motherfucker in the world." Monterio
arrived at Fortini's house a few minutes later.
In his pretrial motion, Fortini argued that the
evidence of this episode was admissible because the fight and
the shooting had a "temporal and schematic nexus," and that the
evidence--by showing that Monterio had been violent that night
and was acting in "hot blood"--supported in various ways
Fortini's claim of self defense.3 Rejecting these grounds for
admission, the trial court excluded the evidence in a pretrial
ruling, finding that Fortini was not at the time of the shooting
aware of Monterio's actions on the basketball court (a point
that Fortini did not dispute), see Commonwealth v. Fontes, 488
N.E.2d 760, 762-63 (Mass. 1986), and that Fortini was not the
3
The defense argued that Monterio's actions and statements
were relevant in three ways. First, that they illustrated a
"continuous pattern of illicit activity and aggression" by
Monterio toward Fortini. Second, that Monterio's "present anger
or