Commonwealth v. Howard ( 2018 )

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SJC-12199
COMMONWEALTH vs. CLYDE HOWARD.
Middlesex. December 8, 2017. - March 5, 2018.
Present: Gants, C.J., Gaziano, Lowy, & Cypher, JJ.
Homicide. Practice, Criminal, Instructions to jury, Lesser
included offense, Capital case, Jury and jurors. Jury and
Jurors. Evidence, Prior misconduct.
Indictment found and returned in the Superior Court
Department on March 19, 2009.
Following review by this court, 469 Mass. 721 (2014), the
case was tried before Brian A. Davis, J.
Sharon Dehmand for the defendant.
Jamie Michael Charles, Assistant District Attorney, for the
Commonwealth.
GAZIANO, J. On January 28, 2009, a heated argument between
the defendant and a coworker, Maurice Ricketts (victim),
escalated into a fatal shooting. At trial, there was no dispute
that the defendant had shot the victim; the issue before the
2
jury was the defendant's state of mind and whether the shooting
had been in response to some form of reasonable provocation.
A Superior Court jury convicted the defendant of murder in
the first degree on the theory of deliberate premeditation.1 In
this direct appeal from his conviction, the defendant challenges
the judge's decision not to instruct the jury on the lesser
included offense of voluntary manslaughter based on sudden
combat; the adequacy of the instructions on reasonable
provocation and lesser included offenses; the dismissal of an
empanelled juror shortly before deliberations began; and the
judge's decision to allow the introduction of prior bad act
evidence.2 The defendant also asks this court to exercise its
extraordinary authority under G. L. c. 278, § 33E, and reduce
the verdict to murder in the second degree or manslaughter. For
the reasons that follow, we affirm the defendant's conviction
and, after a thorough review of the entire trial record, decline
to allow relief under G. L. c. 278, § 33E.
1
This was the defendant's second trial. In 2014, we
vacated the defendant's conviction of murder in the first degree
because of the erroneous admission of a portion of his statement
to police after he had invoked his right to remain silent. See
Commonwealth v. Howard, 469 Mass. 721, 723 (2014).
2
At his first trial, the defendant also was convicted of
possession of a firearm without a license, possession of
ammunition without a firearms identification card, and
discharging a weapon within 500 feet of a building. Howard, 469
Mass. at 722 n.1. Those convictions are not before us.
3
1. Facts. We recite the facts the jury could have found,
reserving other facts for our discussion of specific issues. In
January, 2009, the defendant and the victim were coworkers at a
pool supply distributor. The defendant, a janitor and handyman,
had been employed there for over eleven years. In 2007, the
distributor hired the victim to work as an "order puller"; this
position involved working in the warehouse, assembling products
to fill customer orders.
Over the course of the victim's employment, the defendant,
who was sixty-five years old, and the victim, who was thirty-
three, had been involved in a number of workplace altercations.3
Approximately three months before the shooting, the defendant
and the victim engaged in an altercation over the use of a
forklift. The victim had been using a forklift inside the
warehouse, and stopped using it momentarily. Seeing no one on
the forklift, the defendant took it to use for one of his own
tasks. The victim returned to the warehouse, saw the defendant
operating the forklift, became enraged, and physically forced
the defendant off the forklift. The defendant described it as
the victim removing him from the forklift by grabbing him around
the neck. Later that day, the defendant intentionally backed
into the victim's automobile while it was parked in the
3
The defendant stood five feet, eight inches tall and
weighed 180 to 190 pounds. The victim was six feet, one inch
tall and weighed approximately 230 pounds.
4
employees' lot. As a result of these two incidents, a manager
called both the defendant and the victim to his office and
informed them that if there were any further incidents, they
would be discharged.
On January 28, 2009, the defendant reported to work at
9 A.M., and began his ordinary routine. A few minutes after
10 A.M., the defendant walked through the warehouse carrying a
trash bag, headed toward a Dumpster located in a fenced-in yard.
A coworker, Michael Najarian, Jr., saw the defendant walking
past and engaged in a brief, casual conversation with him.
Najarian later saw the defendant return to the warehouse from
the yard. As he was heading to the front pedestrian entrance of
the building, the defendant walked past the victim, who was
assembling an order near the front door. The defendant stopped
and turned around. Najarian heard a "rather loud explosion of
yelling." Najarian looked up and saw the defendant and the
victim standing face to face, no more than three or four feet
apart, screaming at each other. Najarian was unable to
understand what they were saying, but headed towards them to
break up the argument, so that neither would get in trouble with
management.4
4
A portion of the confrontation was recorded by a video
surveillance camera in the warehouse. The events visible on the
recording are consistent with Najarian's testimony. The footage
shows the front of the warehouse from the inside, with a larger,
5
As Najarian approached from behind the victim, he saw the
victim "reaching toward his right side, almost towards his
belt." The victim then suddenly turned around and ran away from
the defendant toward the back door of the warehouse and through
the door to the back yard. With the victim no longer
obstructing his view, Najarian was able to see that the
defendant's "arm [was] raised with a gun [in] his hand at
roughly a [forty-five]-degree angle, pointing towards the
ground." The defendant fired a shot in the direction of the
victim, and ran after him through the rear door of the warehouse
into the fenced-in yard.
Najarian ran across the street to the office in order to
alert other employees and telephone 911. The manager and the
assistant manager immediately went to the warehouse building.
As they approached the building, they heard two gunshots coming
from the rear, and ran along the outside of the building toward
the fenced-in yard. Peering through a gap in the fence, they
closed garage door and the smaller, pedestrian entrance. The
defendant is seen entering the warehouse through the pedestrian
door carrying a bag of trash. Someone who is at some points
visible on camera is apparently driving a forklift and placing
pallets of buckets of pool supplies near the door. A few
minutes later, the defendant reappears in view, without the
trash bag. He opens the pedestrian door and heads through the
doorway, and then turns around and takes a step towards someone
(the victim) who is approaching him at a brisk pace. They face
each other from a few feet apart for at most a few seconds
before the defendant pulls something from a pocket and extends
his arm, as the other man turns and runs toward the back of the
warehouse, out of the camera's view.
6
saw the defendant standing next to a Dumpster with his arm
extended, holding something in his hand. He fired two shots at
a downward angle; both the manager and the assistant manager
heard groaning sounds coming from behind the Dumpster. After
the second shot, the manager heard the muffled voice of the
defendant saying "something to the extent, like, 'I got you' or
'I finally got you.'" As the manager, who was unable to see the
victim, was yelling to the defendant asking what he was doing,
the defendant headed back toward the warehouse door, paused,
turned around, walked back to the Dumpster, raised his arm, and
fired another shot.
The manager and the assistant manager ran around the
building to the front door of the warehouse. They arrived just
as the defendant was leaving. The defendant pushed past them,
saying, "I gotta get out of here. The guy, the freaking guy,
came at me with a hammer." The defendant ran toward his white
van and drove off at a high rate of speed.
A Cambridge police officer and emergency medical
technicians found the victim wedged between the Dumpster and a
stack of pallets. He had two gunshot wounds to the head, and
died upon arrival at a hospital. One of the gunshots entered
the left side of the victim's face without damaging his brain
and was considered nonfatal. The gunshot that produced the
7
second, fatal wound was fired from close range (within eighteen
inches) into the back of the victim's head.
Later that day, at 4 P.M., a Boston police officer, alerted
by a "be on the lookout" broadcast, spotted the defendant's
white van parked near an intersection in a Boston neighborhood.
The defendant was asleep in the driver's seat with a cellular
telephone pressed to his ear. The officer removed the
defendant, who was intoxicated, from the van. When asked if he
was carrying a weapon, the defendant replied, "No, I threw it in
the Charles River." At a Boston police station, the defendant
made a series of unsolicited statements about the shooting,
including the comment, "I'm not a bad guy. The guy was always
fucking with me, you know, treating me like a woman, slapping
me, you know. One time he told me to pull out my knife, he'll
knock me the fuck out." Because of the defendant's obvious
intoxication, he was not interviewed that night.
The next morning, a Cambridge detective and a State police
trooper interviewed the defendant. The defendant told the
police that he was afraid of the victim, whom he described as a
"big guy" and an ex-convict who had served a lengthy prison
sentence. The defendant reported that the victim frequently
called him a "faggot" and would "stare [him] down." Recounting
the forklift incident, the defendant told investigators that the
victim "jacked [him] up" and threatened to "knock [him] out."
8
The defendant said that, for the previous six months, he had
been carrying a gun in his jacket pocket because the victim
"jacked [him] up that time, and [he] was running scared."
On the morning of the shooting, the victim had approached
him "in a threatening manner, but in a subtle way" with a
sledgehammer. After that incident, the defendant encountered
the victim while passing through the warehouse, they "had
words," and he "just had enough." "We made eye contact because
I just got sick and tired of turning away and running like -- I
just had enough. . . . He said, 'Why you keep staring at me?'
And I said, 'No. You are staring at me. You're staring me
down' . . . . And that's when all hell break loose, and that's
the end of everything that happened there." According to the
defendant, he told the victim to stop, and the victim paused,
but then kept coming toward him. The defendant, who was in a
"daze," did not see the victim's hands and did not see if he was
holding anything.5
At trial, the defendant presented expert testimony from a
forensic psychologist, Dr. Charles Ewing. Ewing diagnosed the
defendant with posttraumatic stress disorder and opined that, as
a result, the defendant was in fear for his life at the time
5
The defendant and the victim routinely carried box cutter
knives in their pockets. This was a common practice of
employees at the company, who used the knives to cut open
products strapped to pallets. At the hospital, a police officer
recovered a box cutter knife from the victim's clothing.
9
that he fired the first shot (that missed) toward the victim.
Ewing testified that the absence of physical contact did not
matter; the victim's hostile approach toward the defendant
caused him to fear imminent bodily harm. After the first shot,
the defendant went into a dissociative or "trance-like" state,
and lacked the capacity to "think or reason clearly." In
rebuttal, the Commonwealth called Dr. Alison Fife, a forensic
psychiatrist, who testified that the defendant was not suffering
from any mental illness on the day of the shooting.
The jury convicted the defendant of murder in the first
degree on the theory of deliberate premeditation.
2. Discussion. a. Instruction on sudden combat. The
defendant argues that a new trial is required because the judge
denied his motion that the jury be instructed on the lesser
included offense of voluntary manslaughter based on sudden
combat. The defendant objected when the instruction was not
given. We therefore review the judge's decision for prejudicial
error. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005).
A manslaughter instruction is required if the evidence,
considered in a light most favorable to the defendant, would
permit a verdict of manslaughter rather than murder. See
Commonwealth v. Nelson, 468 Mass. 1, 13 (2014); Commonwealth v.
Colon, 449 Mass. 207, 220, cert. denied, 552 U.S. 1079 (2007).
Manslaughter is a common-law crime that is defined in general
10
terms as an unlawful killing without malice. Commonwealth v.
Webster, 5 Cush. 295, 308 (1850). Voluntary manslaughter is a
killing committed in "a sudden transport of heat of passion or
heat of blood, upon reasonable provocation and without malice,
or upon sudden combat." Commonwealth v. Burgess, 450 Mass. 422,
438 (2008), quoting Commonwealth v. Campbell, 352 Mass. 387, 397
(1967).6 See Commonwealth v. Smith, 460 Mass. 318, 325 (2011)
(reasonable provocation must meet subjective and objective
standards).
Over the Commonwealth's objection, and "in an abundance of
caution," the judge instructed the jury on voluntary
manslaughter based on reasonable provocation. The defendant
contends that, because the mitigating circumstances of
reasonable provocation and sudden combat are indistinguishable,
it is error to instruct on reasonable provocation and not to
provide an instruction on sudden combat.
The mitigating circumstances of reasonable provocation and
sudden combat are so closely related that "much of our case law
treats them indistinguishably." Commonwealth v. Camacho, 472
Mass. 587, 601 n.19 (2015). There are differences, however,
between reasonable provocation and sudden combat. Reasonable
provocation encompasses a wider range of circumstances likely to
6
A conviction of voluntary manslaughter also may be based
on the excessive use of force in self-defense. Commonwealth v.
Espada, 450 Mass. 687, 694 (2008).
11
cause an individual to lose self-control in the heat of passion
than does sudden combat. See Commonwealth v. Schnopps, 383
Mass. 178, 180-182 (1981) (reasonable provocation instruction
warranted by victim's admission of adultery). "[S]udden combat
is among those circumstances constituting reasonable
provocation." Camacho, supra, quoting Commonwealth v. Walczak,
463 Mass. 808, 820 (2012) (Lenk, J., concurring). See
Commonwealth v. Peters, 372 Mass. 319, 324 (1977) ("sudden
combat is one of the events which may provoke the perturbation
of mind that can end in a killing without malice"). Thus, it is
more accurate to view sudden combat as a form of reasonable
provocation. See Walczak, supra (Lenk, J., concurring).
Our decision in Webster, 5 Cush. at 308, provides guidance
as to the type of altercation that may constitute sudden combat.
"When two meet, not intending to quarrel, and angry words
suddenly arise, and a conflict springs up in which blows are
given on both sides, without much regard to who is the
assailant, it is a mutual combat. And if no unfair advantage is
taken in the outset, and the occasion is not sought for the
purpose of gratifying malice, and one seizes a weapon and
strikes a deadly blow, it is regarded as homicide in heat of
blood . . . ." Id. Our jurisprudence has relied upon this
definition for more than 150 years. See Commonwealth v.
Rodriquez, 461 Mass. 100, 107 (2011); Commonwealth v. Clemente,
12
452 Mass. 295, 320-321 (2008), cert. denied, 555 U.S. 1181(2009).
In Commonwealth v. Espada, 450 Mass. 687, 697 (2008),
quoting Commonwealth v. Pasteur, 66 Mass. App. Ct. 812, 822
(2006), we clarified that, "for sudden combat to be the basis of
a voluntary manslaughter instruction the 'victim . . . must
attack the defendant or at least strike a blow against the
defendant.'" See Commonwealth v. Gonzalez, 465 Mass. 672, 685-
686 (2013) (no evidence of sudden combat where defendant was
unable to demonstrate overt act by victim amounting to attack or
exchange of blows); Rodriquez, 461 Mass. at 107 (no sudden
combat where victim walked "hastily" toward defendant, without
any accompanying physical gestures indicating intended
violence); Commonwealth v. Brum, 441 Mass. 199, 206 (2004) (no
sudden combat where victim, who was armed with hammer, did not
actually strike defendant or his brother or attempt to do so).7
7
Depending upon the particular facts presented, physical
contact between a defendant and a victim does not necessarily
support an instruction on reasonable provocation or sudden
combat. See Commonwealth v. Curtis, 417 Mass. 619, 629 (1994);
Commonwealth v. Walden, 380 Mass. 724, 727 (1980). "There must
be evidence that would warrant a reasonable doubt that something
happened which 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, and that what happened actually did produce such a
state of mind in the defendant." Walden, supra at 728. See
Commonwealth v. Ruiz, 442 Mass. 826, 839 (2004) (no sudden
combat where victim slapped and jumped on defendant because
"conduct presented no threat of serious harm to him");
13
Given the absence of evidence of combat in this case, the
judge properly denied the defendant's request for an instruction
on sudden combat. Najarian, the sole eyewitness to the
altercation, observed the defendant and the victim yelling at
each other while they stood three or four feet apart. In the
defendant's version of the encounter, he and the victim made eye
contact inside the warehouse, and the victim advanced toward
him. They began yelling at each other, the defendant felt
threatened, and he decided that he had had enough. "That's when
all hell broke loose." The defendant told police that the
victim had not touched him at the point when the defendant
pulled his handgun out of his pocket. The surveillance footage
is consistent with these statements.
b. Instruction on reasonable provocation. The defendant
asks this court to reverse his conviction because the judge's
instruction on reasonable provocation included a statement that
threatening gestures are not sufficient to constitute reasonable
provocation. In his brief, the defendant argues that the
victim's movement "towards his pocket," where the victim
Commonwealth v. Brum, 441 Mass. 199, 206 n.12 (2004) ("Even if a
victim brandishes a weapon or attacks a defendant, it does not
necessarily create sudden combat or reasonable provocation");
Commonwealth v. Rembiszewski, 363 Mass. 311, 321 (1973) ("[I]t
is an extravagant suggestion that scratches [inflicted by the
victim on the defendant's face] could serve as provocation for a
malice-free but ferocious attack by the defendant with a deadly
instrument").
14
concealed a box cutter knife, "started a chain of events which
led to the shooting." The defendant contends that the judge's
erroneous instruction negated his only defense and eliminated
any possibility that the jury would find him guilty of
manslaughter. Because the defendant did not object to the
judge's instruction on reasonable provocation, we review his
claim to determine whether there was a substantial likelihood of
a miscarriage of justice. Commonwealth v. Serino, 436 Mass.
408, 419 (2002).8
The judge's instruction on reasonable provocation provided:
"When we say heat of passion, that includes the state
of mind of passion, anger, fear, fright and nervous
excitement. Reasonable provocation is provocation by the
person killed that would likely to produce such a state of
passion, anger, fear, fright or nervous excitement in a
reasonable person as would overwhelm his capacity for
reflection or restraint and actually did produce such a
state of mind in the defendant.
"So the reasonable provocation must be such that a
reasonable person would have become incapable of reflection
or restraint and would not have cooled off by the time of
the killing, and that the defendant himself was so provoked
and did not cool off at the time of the killing. In
addition, there must be a causal connection between the
provocation, the heat of passion and the killing. The
killing must occur after the provocation and before there
is sufficient time for the emotion to cool, and must be the
result of the state of mind induced by the provocation
8
The Commonwealth argues that the evidence, viewed in a
light most favorable to the defendant, did not support an
instruction on reasonable provocation. See Commonwealth v.
Clemente, 452 Mass. 295, 321 (2008), cert. denied, 555 U.S. 1181(2009). Having concluded that the judge's instructions were not
erroneous, we do not reach the issue whether the defendant was
entitled to such an instruction.
15
rather than by a preexisting intent to kill or grievous
injure, or an intent to kill formed after the capacity for
reflection or restraint has returned.
"So now what constitutes reasonable provocation? Mere
words or threatening gestures, no matter how insulting or
abusive, do not by themselves constitute reasonable
provocation. Physical contact, even a single blow, may
amount to reasonable provocation. Whether the contact is
sufficient will depend on whether a reasonable person under
similar circumstances would have been provoked to act out
of emotion rather than reasoned reflection."
"The heat of passion also must be sudden. That is,
the killing must have occurred before a reasonable person
would have regained control of his emotions."
As the defendant points out, the term "threating gestures"
is not included in our model jury instructions on homicide. See
Model Jury Instructions on Homicide 66 (2013) ("Mere words, no
matter how insulting or abusive, do not by themselves constitute
reasonable provocation"). Although we have urged trial judges
to adhere to the model jury instructions, "judges are not
required to deliver their instructions in any particular form of
words." Commonwealth v. Sinnott, 399 Mass. 863, 878 (1987).
We have stated that threatening gestures, standing alone,
may not necessarily constitute reasonable provocation. In
Commonwealth v. Jefferson, 416 Mass. 258, 263-264 (1993), and
Commonwealth v. Weaver, 395 Mass. 307, 312 (1985), we upheld the
use of an instruction on reasonable provocation, which provided
that "mere insulting words and threatening gestures, alone, with
nothing else do not constitute adequate provocation to reduce a
16
killing from murder to manslaughter." See Commonwealth v. Dyer,
460 Mass. 728, 747 (2011), cert. denied, 566 U.S. 1026 (2012)
(noting that instruction providing that "mere insulting words or
threatening gestures" were insufficient to establish type of
provocation necessary to reduce murder to manslaughter was
accurate); Commonwealth v. Niemic, 427 Mass. 718, 723 n.3 (1998)
(instruction that "[m]ere insulting words and threatening
gestures alone with nothing else do not constitute adequate
provocation to reduce a killing from murder to manslaughter" is
correct statement of law).
We take this opportunity to note, however, that judges
should proceed with caution when deviating from our model jury
instructions on homicide and instructing the jury that
threatening gestures may not constitute provocation.
Ordinarily, words and accompanying gestures, even if insulting
or hostile, are not sufficient to provoke a reasonable person to
lose self-control in the heat of passion. See Commonwealth v.
Vatcher, 438 Mass. 584, 588-589 (2003). On the other hand, in
certain circumstances, words and gestures may combine to convey
information that would constitute adequate provocation and would
render an unlawful killing voluntary manslaughter. See, e.g.,
Commonwealth v. Tu Trinh, 458 Mass. 776, 783 (2011) (court
examines whether evidence of actions, or actions combined with
words, were sufficient to trigger deadly response).
17
In Commonwealth v. Little, 431 Mass. 782, 786-787 (2000),
for example, we examined the victim's words and actions to
determine whether the defendant was entitled to an instruction
on provocation. The evidence included that the victim had
approached the defendant, yelling, "I'll fuck you up," and had
continued to advance toward the defendant despite having been
warned that the defendant was armed. Id. at 785. The defendant
believed that the victim, who had been known to carry a handgun
in the past, was in possession of a gun. Id. at 783-784. The
defendant testified at trial that the victim "made a motion like
he was going for his hip" and the defendant believed the victim
had reached toward his back in order to draw his gun. Id. at
785. Based on this evidence, we held that the victim's "hostile
behavior" permitted the jury to find that the defendant "shot
his handgun in the heat of passion, provoked by the above
circumstances." Id. at 786-787. See Commonwealth v. Fortini,
68 Mass. App. Ct. 701, 702-703, 706 (2007) (instruction on
reasonable provocation warranted from evidence of unknown
assailant's intrusion onto defendant's porch in middle of night,
lunging at defendant, and reaching for defendant's shotgun).
We conclude that, in light of the facts presented here, the
judge's reasonable provocation instruction was not erroneous
because none of the circumstances that would permit a
threatening gesture to rise to the level of provocation was
18
present. There was no evidence in the Commonwealth's case-in-
chief that the victim made a threatening gesture, and the
defendant did not introduce any evidence that he, in fact,
believed that the victim had been reaching for a knife. See
Commonwealth v. Groome, 435 Mass. 201, 220 (2001) (there must be
evidence from which jury could determine that defendant was
provoked). See also Camacho, 472 Mass. at 602. Indeed, in his
interview with police, the defendant did not mention the
victim's gesture toward his belt, which his coworker described,
and did not express a belief that the victim had been reaching
for a knife or any other weapon in his pocket. To the contrary,
the defendant said that he had not seen anything the victim did
with his hands, as the defendant had been in a "daze" or had
"tunnel vision," and that, after an exchange of words, "all hell
broke loose because [the defendant] just got sick and tired of
it." Not only did the defendant indicate no fear of the victim,
he commented that, after he fired the first shot, the victim was
urging him on to continue shooting, which enraged the defendant.
The defendant's description of the events to police, that
was played for the jury at trial, was as follows:
The defendant: "You know, it's a funny thing you should
say that because he was -- I couldn't understand. I know
he might have been hit before once and he was still saying,
'Come on, come on.' And I'm saying -- at that time -- now
hindsight now I can look at that, but --"
First interviewer: "Yeah."
19
The defendant: "See, that's what he meant -- I couldn't
understand --"
First interviewer: "So the whole time he's egging you on?"
The defendant: "Yeah, I couldn't understand that."
. . .
Second interviewer: "He's out back there, right, could he
have just gone like through the gate and get the hell out
of there or what the hell -- why is he still there? Could
he have left the property?"
First interviewer: "How come he didn't go out the side
door? Why didn't he run out there or how come he didn't go
out the side door that you went to the van?"
The defendant: "Because I got in a stinking rage."
. . .
Second interviewer: "If he was such . . . in fear or
anything, how come he didn't try to go out the side door
that you said you left to go to your van? Why did he run
out back?"
The defendant: "Because he would have to go through me."
First interviewer: "What about out back because -- is
there a gate out back that he could have just took off
from?"
The defendant: "That gate was locked."
First interviewer: "Oh, was it? Was he reaching for
anything? Did he have a gun or anything on him that he was
--"
The defendant: "I had tunnel vision. I wasn't seeing
anything like that. I was --"
First interviewer: "But he still said, hey, you know, come
on, come on, still egging you on, huh?"
20
The defendant: "I couldn't understand that, and that made
me --"
Accordingly, the defendant has not shown any error in the
judge's instruction on reasonable provocation.9
c. Instruction on lesser included offenses. The defendant
also challenges the fact that the judge's charge did not include
a "soft transition" instruction on lesser included offenses. He
argues that the lack of a "soft transition" instruction
necessarily resulted in the deliberations proceeding under an
"acquittal first" structure. Thus, he argues, the jury were
precluded from considering the lesser included offense of
voluntary manslaughter unless and until they found the defendant
not guilty of murder in the first degree. Because the defendant
did not object to this instruction at trial, we review any error
to determine whether it created a substantial likelihood of a
miscarriage of justice. See Serino, 436 Mass. at 419.10
9
The defendant contends also that, in his closing argument,
the prosecutor misstated the law of reasonable provocation and
the evidence. This argument is unavailing. The prosecutor
properly referred to the objective component of provocation, and
argued reasonable inferences drawn from the facts.
10
The judge did not instruct the jury, in accordance with
our model jury instructions on homicide, that "[i]f you find the
defendant not guilty of murder in the first degree or murder in
the second degree, you shall consider whether the Commonwealth
has proved the defendant guilty beyond a reasonable doubt of the
lesser offense of voluntary manslaughter . . . ." Model Jury
Instructions on Homicide 36 (2013).
21
In an acquittal first (or "hard transition") jurisdiction,
the jury are required first to deliberate regarding the most
serious offense charged; they are precluded from considering a
lesser included offense "unless and until they unanimously find
the defendant not guilty of the greater charge." Commonwealth
v. Figueroa, 468 Mass. 204, 224 (2014). By contrast, juries in
a soft transition jurisdiction have "free rein to conduct their
deliberations as they see fit." Id., quoting Commonwealth v.
Roth, 437 Mass. 777, 794 n.14 (2002). The jury must be
permitted to consider a lesser included offense prior to
reaching a unanimous decision on the defendant's guilt or
innocence of the greater offense. Figueroa, supra at 224-225.
Massachusetts is, as the defendant points out, a soft transition
jurisdiction. Id.
We discern no error in the judge's instructions as to
lesser included offenses. Contrary to the defendant's claim,
the judge specifically instructed the jury to consider
manslaughter based on reasonable provocation prior to reaching a
decision on whether the defendant had committed murder in the
first degree. In instructing the jury on the theories of murder
in the first degree by deliberate premeditation and by extreme
atrocity or cruelty, the judge explained that the Commonwealth
was required to prove beyond a reasonable doubt the absence of
mitigating circumstances. He instructed,
22
"The law recognizes that in certain circumstances,
which we refer to as mitigating circumstances, the crime is
a lesser offense than it would have been in the absence of
mitigating circumstances. Now a killing that would
otherwise be murder in the first [or] second degree is
reduced to the lesser offense of voluntary manslaughter if
the defendant killed someone under mitigating
circumstances."
The judge went on to inform the jury that "[i]n this case the
mitigating circumstance that you must consider is what is
referred to in the law as heat of passion on a reasonable
provocation."
In addition, the judge began his instructions on voluntary
manslaughter by telling the jurors that, "[l]ike murder in the
second degree, voluntary manslaughter is a lesser-included
offense with the charge of murder in the first degree." He then
recapped his prior instructions, explaining, "So to prove the
defendant guilty of murder in the first or second degree, the
Commonwealth is required to prove beyond a reasonable doubt that
there are no mitigating circumstances that reduce the
defendant's culpability. A mitigating circumstance is a
circumstance that reduces the seriousness of the offense in the
eyes of the law."
Viewed in their entirety, the instructions correctly
informed the jury of their obligation to consider evidence of
reasonable provocation before convicting the defendant of murder
in the first degree.
23
d. Dismissal of empanelled juror. The defendant
challenges the judge's decision to dismiss an empanelled juror
toward the end of the trial, because of a three-page note that
she had sent the judge after the defendant's expert testified.
During empanelment, a juror reported that she had been the
victim of a sexual assault. After receiving input from both
counsel, the judge asked the juror a follow-up question:
Q.: "Was there anything about any treatment that you may
have received, or support that you may have received, or
anything of that nature that would affect in any way your
ability to listen to any psychiatrist, psychological
testimony in this case, with an open mind?"
A.: "I don't think so. I mean, it wasn't an actual rape.
It was like an assault. So it wasn't -- I mean, it was not
a great experience. But . . . ."
The judge found the juror indifferent, and she was seated after
neither party exercised a peremptory challenge.
On the day before closing arguments, the judge informed the
attorneys that he had just been handed a three-page note from
the juror. In the note, the juror referenced the prior assault,
and stated, "[I]t made sense to me what [Ewing] was saying about
a dissociative state, because to a smaller extent I guess I have
experienced that." The juror indicated that she could relate to
the expert's description of the defendant being on edge and
"walking on egg shells." The juror assured the judge that she
could "put all of that aside and just look at the evidence that
was presented, but I wanted to be forthright that this
24
experience did make me think about my own experience and to
inquire if that disqualifies me from participating in
deliberations." After a hearing, the judge dismissed the juror
over the defendant's objection. The judge instructed the
remaining jurors that he had dismissed the juror for a reason
"entirely personal to that juror and [that] had nothing to do
whatsoever with the merits of this matter."
A trial judge is vested with the discretion to discharge a
juror prior to deliberations "in the best interests of justice."
G. L. c. 234A, § 39. See Commonwealth v. Stokes, 440 Mass. 741,
751 (2004); Commonwealth v. Rock, 429 Mass. 609, 613-614 (1999).
Here, the judge reasoned that the juror, after hearing testimony
from the defendant's expert witness, might have self-diagnosed
herself or had realized that she might have suffered from
dissociative and posttraumatic stress disorders as a result of
her own assault.
Given the juror's disclosure that she had been influenced
by the defendant's expert's testimony, and had realized that she
might have experienced the same psychiatric symptoms as the
expert testified that the defendant had suffered, we conclude
that the judge acted well within his statutory authority to
excuse the nondeliberating juror in the interests of justice.
e. Prior bad act evidence. The defendant argues that the
judge abused his discretion in allowing the prosecutor to
25
introduce evidence that, at some time in the past, the defendant
had brought a gun to work. A coworker, Shane Nixon, testified
on direct examination that, at some point before the victim's
employment, he observed the defendant "with something that
appeared to be a gun in the area of" the company's premises. On
cross-examination, Nixon clarified that what he had seen had
been the handle of what appeared to be a handgun wrapped in a
dirty white rag in the defendant's vehicle. Nixon acknowledged
that he had never seen the defendant carrying a gun on his
person.
The judge allowed the Commonwealth to introduce this
evidence in order to impeach the defendant's statement that he
had started bringing a gun to work because he was afraid of the
victim. The judge immediately instructed the jury that the
evidence was admissible "to the extent that you find it relevant
solely on the issue of whether the defendant acted intentionally
and not because of some mistake or accident or innocent reason,
or as to whether it shows a common plan or scheme or pattern of
conduct, or with respect to the defendant's state of mind,
motive, intent, opportunity, preparation, plan or knowledge,
with respect to the identity of the defendant as the perpetrator
of the crime charged." In his final charge, the judge repeated
this instruction.
26
Evidence of a defendant's prior or subsequent bad acts is
not admissible to show "bad character or criminal propensity"
(citation omitted). Commonwealth v. Lally, 473 Mass. 693, 712
(2016). It generally is admissible for another purpose such as
to establish a defendant's "common scheme, pattern of operation,
absence of accident or mistake, identity, intent, or motive."
Commonwealth v. Helfant, 398 Mass. 214, 224 (1986). Evidence of
prior bad acts also may be introduced to rebut "the defendant's
contentions made in the course of trial" (quotations omitted).
Commonwealth v. Anestal, 463 Mass. 655, 665 (2012), quoting
Commonwealth v. Magraw, 426 Mass. 589, 595 (1998). See Mass.
G. Evid. § 404(b)(2) (2017). The Commonwealth is required to
demonstrate that the probative value of the evidence is not
outweighed by the risk of unfair prejudice to the defendant.
Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). We review
questions of admissibility, probative value, and unfair
prejudice under an abuse of discretion standard. Id. at 252.
In his statement to police, the defendant said that he had
begun bringing a small handgun to work approximately six months
before the incident, because of his fear of the victim following
the incident with the forklift: "Since he [the victim] jacked
me up that time, and I was running scared." Evidence that Nixon
had seen the handle of a gun in the defendant's vehicle prior to
the victim's employment was admissible to rebut this claim.
27
Although the judge did not abuse his discretion in allowing
Nixon to testify about his observations of the defendant's
vehicle at some point before the victim began working at the
company, we agree with the defendant's argument that the
limiting instructions focused improperly on the defendant's
state of mind. The judge should have instructed the jury in
accordance with the reason that he had allowed the evidence to
be admitted: that it was relevant to rebut the defendant's
statement that he started bringing a gun to work because he was
afraid of the victim.
Nonetheless, the error in the limiting instruction was
harmless. See Commonwealth v. Flebotte, 417 Mass. 348, 353
(1994) (error harmless if reviewing court is "sure that the
error did not influence the jury, or had but a slight effect").
The focus of the trial was on the defendant's state of mind at
the time of the shooting. The testimony about a rag-wrapped
object that might have been in the defendant's vehicle, at some
point before the victim began working at the company, received
minimal attention at trial. Commonwealth v. McGee, 467 Mass.
141, 158 (2014). Nixon's testimony concerning the issue was
brief, and the prosecutor did not mention it in his closing
argument. See Commonwealth v. Rutherford, 476 Mass. 639, 649
(2017).
28
f. Review under G. L. c. 278, § 33E. We have carefully
reviewed the entire record, pursuant to our duty under G. L.
c. 278, § 33E, and find no reason to set aside the verdict or
reduce the degree of guilt.
Judgment affirmed.