Commonwealth v. Niemic

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SJC-11535
COMMONWEALTH vs. JONATHAN NIEMIC.
Bristol. April 9, 2015. - September 17, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Homicide. Practice, Criminal, Capital case, Assistance of
counsel, Argument by prosecutor, Cross-examination by
prosecutor, Instructions to jury. Evidence, Argument by
prosecutor, Self-defense, Cross-examination, Impeachment of
credibility, Prior inconsistent statement. Self-Defense.
Constitutional Law, Assistance of counsel.
Indictment found and returned in the Superior Court
Department on December 9, 2010.
The case was tried before Thomas F. McGuire, Jr., J.
Theodore F. Riordan (Deborah Bates Riordan with him) for
the defendant.
Tara L. Blackman, Assistant District Attorney, for the
Commonwealth.
SPINA, J. On October 20, 2010, the defendant stabbed the
victim six times with a small folding pocket knife, killing him.
The Commonwealth's theory of motive was that both men had been
2
vying for the affection of the same woman. The primary dispute
at trial was whether the victim was the first aggressor, whether
the defendant acted in self-defense, and who first had
possession of the knife. The jury convicted the defendant of
murder in the first degree on a theory of extreme atrocity or
cruelty. On appeal the defendant asserts error by trial
counsel, by the prosecutor, and by the judge. He claims that
trial counsel was ineffective (1) for making an incorrect
argument about voluntary manslaughter (which he asked the jury
to find), and (2) for failing to request an instruction on
involuntary manslaughter. The defendant argues that the
prosecutor improperly cross-examined him on his right to remain
silent, including (1) questions about why he had not gone to
police with his version of events, (2) questions about his
failure to tell his grandmother and friends that he was
defending himself, and (3) questions that emphasized his failure
to tell anyone his version of events until trial. The defendant
also contends that the prosecutor (4) improperly appealed to the
sympathy of the jury in his closing argument, and (5) made
improper argument about the defendant's failure to call
witnesses to corroborate his testimony. The defendant asserts
that the judge erred (1) by failing to instruct the jury that
the Commonwealth must disprove the absence of excessive force in
self-defense, and (2) by giving an incorrect instruction on
3
self-defense. We conclude that the combined effect of the
prosecutor's closing argument and trial counsel's failure to
request a voluntary manslaughter instruction based on reasonable
provocation requires that the defendant be given a new trial.
However, we give the Commonwealth the option of either accepting
a reduction of the verdict to manslaughter, or having the
conviction vacated and proceeding with a new trial.
1. Background. The jury could have found the following
facts. We reserve other details for discussion of specific
issues. The defendant was incarcerated on an unrelated matter
from about the middle of August, 2010, until October 15, 2010.
While he was incarcerated, the defendant wrote a letter to a
woman named Lisa whom he had started dating in June. In the
letter he confessed that he thought she was "perfect." During
the defendant's incarceration the victim took notice of Lisa and
began flirting with her. After the defendant was released from
his incarceration he learned of the developing relationship
between the victim and Lisa. This angered the defendant, who
told a friend that the next time he saw the victim he was going
to punch him in the head. On October 19, 2010, the defendant
and Lisa socialized with another couple until about 11 P.M. At
one point the defendant and Lisa became involved in a mild
argument over the victim. The two couples agreed to get
together the next day.
4
The two couples met at about 2 P.M. on October 20, as
planned. At about 7:30 P.M. they went to a soup kitchen in New
Bedford because Lisa had forgotten her key to the addiction
recovery house for women where she was staying, and other
residents of the recovery house were at the soup kitchen
attending an Alcoholics Anonymous meeting. She planned to
borrow a key from one of the residents who was at the meeting.
The victim was at the meeting. The defendant and Lisa appeared
to be having a serious conversation.
During a break in the meeting the defendant walked over to
the victim and said he had been hearing things that the victim
was saying about him, and he felt "disrespected." The defendant
then started punching the victim in the head. The victim tried
to deflect the blows and backed away. The defendant started
chasing and lunging at the victim. He stabbed the victim six
times with a small folding pocket knife, a type of knife the
defendant owned. The incident lasted no more than thirty
seconds. The defendant left the scene with the people who had
arrived with him. As they were driving, the defendant said that
he had stabbed the victim, adding, "I hope I didn't kill him."
The victim died later that night from his wounds, which included
two puncture wounds to the heart and one that completely passed
through the liver.
5
The defendant threw the knife into a wooded area. It was
later recovered by police. The defendant's friends left him at
a supermarket where he telephoned his grandmother. He asked her
to give him a ride. The defendant's grandmother drove him to
the home of one of his close friends. He told one of the people
living there that he had gotten into a fight over a girl with
someone at the soup kitchen. He said that he and the other man
got into a fist fight, and that the other man got the better of
him. The defendant said that he went to the vehicle in which he
had arrived, retrieved a knife, and then "slashed" the other man
in the chest two or three times. He said that he did not know
if the other man was still alive. This person heard him make
several telephone calls trying to find out if the other man was
alive. The defendant seemed very worried.
Police went to the friend's house looking for the defendant
at approximately 2 A.M. on October 21, 2010. They found him
hiding in a cubby hole in a rear hallway. He was placed under
arrest. Police observed a fresh cut on the defendant's right
hand between the webbing of his right index finger and his
thumb. They also observed three fresh cuts on his left hand,
two of which were between the webbing of his index finger and
his thumb, and the third was on the pad of this thumb.
A friend with whom the defendant had socialized on October
19 and 20, 2010, testified for the defense. He said that the
6
victim threw the first punch. He also testified that about two
months before the killing, the victim had threatened to stab the
defendant. The defendant testified in his defense. He said
that he was fearful of the victim, who was known as a "tough
guy," and referred to as "Big Mike." The victim was "a lot
bigger" and ten years older than the defendant. He said that he
wanted to resolve their issues by talking when other people were
nearby. He testified that the victim started punching him and
then pulled out a knife. The defendant grabbed the blade of the
knife and pulled it out of the victim's hand.1 The victim came
after him and tried to grab him. The defendant swung the knife
"wildly" in order to defend himself. He said that he did not
realize that he was stabbing the victim, or that the victim
might be seriously hurt, and that he broke down in tears over
the incident. He said that he never intended to kill the
victim.
The defendant testified that he once owned a similar knife,
but not at that time. He said that the knife that was involved
in the stabbing was not his, and that he did not recall telling
anyone that the fight was over a girl. He denied going back to
the car in which he arrived at the soup kitchen to get the
1
There is no dispute that deoxyribonucleic acid (DNA)
testing on the knife handle and blade revealed blood from at
least two individuals, that the defendant's DNA matched the
major profile, and that the victim was a potential contributor
of the minor profile.
7
knife, and he said that he had no recollection of telling anyone
that he did so. He testified that the victim had threatened to
stab him about two months before the stabbing.
2. Ineffective assistance of counsel. The defendant first
contends that trial counsel was ineffective for failing to
request a jury instruction on involuntary manslaughter, based on
his testimony that he did not intend to kill the victim. See
Commonwealth v. Whitman, 430 Mass. 746, 753 n.13 (2000)
(involuntary manslaughter involves unintentional unlawful
killing). We need not dwell on this issue. The defendant cites
no authority in support of this argument. The blade of the
knife used to kill the victim penetrated the victim's body to a
depth greater than the length of the blade. The Commonwealth's
pathologist testified that this can occur when the force with
which the knife is thrust into the body compresses the rib cage.
The force was so great that the knife blade went completely
through the victim's liver. The victim had been stabbed six
times, including in the chest, back, and side. In comparable
circumstances, this court has said that an onslaught of this
degree does not support a finding that the killing was
unintentional, notwithstanding a defendant's statement that he
did not intend to kill the victim. A request for an involuntary
manslaughter instruction properly would have been denied. See
Commonwealth v. Tague, 434 Mass. 510, 518-519 (2001), cert.
8
denied, 534 U.S. 1146 (2002); Commonwealth v. Dunton, 397 Mass.
101, 103 (1986); Commonwealth v. Golston, 373 Mass. 249, 260
(1977), cert. denied, 434 U.S. 1039 (1978). Counsel was not
ineffective for failing to request an instruction that was not
warranted by the evidence. See Commonwealth v. Leng, 463 Mass.
779, 788 (2012).
The defendant next argues that counsel was ineffective for
making a legally incorrect and confusing argument on self-
defense and voluntary manslaughter.2 He contends that trial
counsel urged the jury to find the defendant guilty of
manslaughter because he had acted in self-defense. The correct
statement of law, he maintains, would have been that the
defendant should be convicted of manslaughter because he had
used excessive force in self-defense. However, he continues,
trial counsel argued self-defense, which should have culminated
in a request for a verdict of not guilty. Counsel was
ineffective, the defendant concludes, because he failed to
explain why the verdict should be manslaughter.
The defendant misstates trial counsel's argument. Trial
counsel never used the term "self-defense" in his argument, and
2
A claim of ineffective assistance of counsel made on the
trial record alone, as here, "is the weakest form of such a
challenge because it is bereft of any explanation by trial
counsel for his actions and suggestive of strategy contrived by
a defendant viewing the case with hindsight." Commonwealth v.
Peloquin, 437 Mass. 204, 210 n.5 (2002).
9
he expressly said that he was not asking the jury to find the
defendant not guilty. The argument was purely factual. Counsel
argued that the significant variations in the eyewitness
testimony were understandable because there were many people
milling about and conversing in small groups during a break in
the Alcoholics Anonymous meeting. The various witnesses caught
different and only partial glimpses of this very brief incident.
In most instances, the glimpse that a witness caught was in his
or her peripheral vision. As a result, no one witness saw the
entire incident, and there were obvious flaws in some
perceptions of what occurred. The culmination and thrust of the
argument was that there was one fact that was not in dispute,
and that was that the defendant sustained cuts on his hands, and
his blood was found on the knife. This could only be explained,
he reasoned, by the defendant's testimony that the victim was
the one who introduced the knife to the fray, and the
defendant's hands were cut as he wrested it away from him.
Counsel also argued, based on the testimony of the defendant's
friend, that the victim had been the first aggressor. Although
counsel never used the words "self-defense" or "excessive use of
force in self-defense," it is readily apparent that counsel was
urging the jury to find that the defendant, armed with the knife
he had taken from the victim, used excessive force in self-
defense while the victim continued to pursue him.
10
This was not a model closing argument, but it was adequate.
Counsel's decision to focus on the single fact that was
essential to the jury's acceptance of his manslaughter theory,
namely, the victim's introduction of lethal force, without
discussing the applicable law, was not a manifestly unreasonable
strategy. See Commonwealth v. Adams, 374 Mass. 722, 728 (1978)
(tactical decision of counsel will not constitute ineffective
assistance unless it was manifestly unreasonable when made).
Counsel reasonably could have thought that a brief closing that
concentrated on the most critical fact for the defense would
emblazon the importance of that fact on the minds of the jurors
and become the centerpiece of their deliberations. He
reasonably could have anticipated that in short order his
closing would play directly into what the judge would instruct
the jury on self-defense and use of excessive force in self-
defense, and that it would be more beneficial to concentrate on
the facts without a discussion of the law.
Typically (and properly), lawyers are permitted some leeway
during closing argument to discuss the law as it pertains to
their case, to give context to the facts they argue, but they
are not required to do so. Cf. Commonwealth v. Jones, 432 Mass.
623, 628 (2000) ("Prosecutors and defense counsel must restrict
their closing arguments to the evidence and [permissible]
inferences that can be drawn from the evidence"). However,
11
lawyers may not misstate principles of law in closing argument.
See Commonwealth v. Thomas, 401 Mass. 109, 113 (1987). The
prosecutor barely discussed the law in his closing argument.
Counsel's decision to leave the jury with the factual crux of
the defense, without comment on the law, did not amount to
ineffective assistance.
3. Cross-examination of the defendant. The prosecutor
cross-examined the defendant about his failure to tell civilian
witnesses that he was defending himself, his failure to contact
police prior to his arrest and tell them that he was acting in
self-defense, and whether the first time that he told anyone
that he was defending himself was at trial. The defendant
argues that these questions constituted improper comment on his
right to remain silent, and that a new trial is required. See
Doyle v. Ohio, 426 U.S. 610, 619 (1976); Commonwealth v. Person,
400 Mass. 136, 140 (1987). There was no objection, so we review
under the standard of a substantial likelihood of a miscarriage
of justice. See Commonwealth v. Wright, 411 Mass. 678, 681
(1992), S.C., 469 Mass. 447 (2014).
During his direct examination the defendant testified that
he had approached the victim. The victim "snapped" at him, and
then threw a punch at him. The victim then produced the knife,
but the defendant grabbed it from him. The victim came at the
defendant, who swung "wildly" at the victim to try to keep him
12
at bay. The defendant testified that he did not realize that he
was stabbing the victim, and that he did not intend to kill him.
Later, he called for his grandmother to pick him up. He was in
shock and was crying over what had happened. On cross-
examination the defendant said that he learned that the victim
had been hurt badly and that he was concerned for the victim, as
well as for himself. He telephoned a number of people trying to
find out how the victim was doing, and what kind of trouble he
might be facing.
Earlier in the trial a Commonwealth witness had testified
that the defendant came to the house of a friend, where the
witness had been staying. The defendant appeared worried, and
the witness asked him what had happened. The defendant
described the encounter with the victim, as previously
discussed, including an admission that he, the defendant, went
to the vehicle in which he arrived and obtained a knife. The
defendant also made statements about the stabbing as he and
others drove from the scene.
This was not a case in which the defendant was confronted
with his prearrest silence. See, e.g., Commonwealth v.
Nickerson, 386 Mass. 54 (1982). This was a case where the
prosecutor was confronting the defendant with his prearrest
statements, and impeaching him with inconsistencies between
those statements and his trial testimony. The defendant never
13
mentioned in his prearrest statements that he had acted in self-
defense or that the victim was the first aggressor. The
prosecutor was entitled to cross-examine the defendant about
those inconsistencies, including any omissions in those
statements that were different from his trial testimony. See
Commonwealth v. Hesketh, 386 Mass. 153, 161 (1982). An omission
in a prior statement may render that statement inconsistent
"when it would have been natural to include the fact in the
initial statement." Commonwealth v. Ortiz, 39 Mass. App. Ct.
70, 72 (1995). See Commonwealth v. Perez, 460 Mass. 683, 699
(2011); Mass. G. Evid. § 613(a)(2) & notes (2015). Where the
defendant had been worried about the fate of the victim, as well
as his own legal fate, it would have been natural to explain
that he was acting in self-defense when describing the incident
in his prearrest statement to civilian witnesses. The
prosecutor acted appropriately when cross-examining the
defendant about what he told and what he did not tell civilian
witnesses.
The prosecutor's cross-examination of the defendant about
his failure to seek out police to report that the victim might
be in need of medical attention, and to tell them he acted in
self-defense, was not proper. Although the prosecutor might
properly have cross-examined the defendant about his "concern"
for the victim by asking if he called for an ambulance, it would
14
not have been natural for him to seek out police to tell his
exculpatory story. Compare Commonwealth v. Barnoski, 418 Mass.
523, 536 (1994). This was error, but we conclude that it did
not create a substantial likelihood of a miscarriage of justice.
The defendant had made several prearrest statements to friends
in which he made no reference to self-defense. We are satisfied
that questions about his failure to seek out police to say he
acted in self-defense added little, if anything, to the impact
on the jury of the several statements he made to his friends in
which he made no mention of self-defense. Moreover, the
prosecutor did not mention the matter in his closing argument,
thus keeping any prejudice at a minimum. See id. at 537 n.7.
4. Prosecutor's closing argument. The defendant contends
that the prosecutor made improper closing argument by appealing
to the sympathy of jurors, and by arguing that the defendant
failed to call witnesses to testify about the victim's
reputation for violence. Because the defendant did not object
to the prosecutor's argument, our review is under the standard
of a substantial likelihood of a miscarriage of justice. See
Wright, 411 Mass. at 681. In making that determination, the
cumulative effect of all the errors must be "considered in the
context of the arguments and the case as a whole." Commonwealth
v. Maynard, 436 Mass. 558, 570 (2002). If a defendant
establishes that the prosecutor's closing argument was improper,
15
we are guided by the following factors when deciding whether a
new trial is required: "whether 'defense counsel seasonably
objected to the arguments at trial . . . whether the judge's
instructions mitigated the error . . . whether the errors in the
arguments went to the heart of the issues at trial or concerned
collateral matters . . . whether the jury would be able to sort
out the excessive claims made by the prosecutor . . . and
whether the Commonwealth's case was so overwhelming that the
errors did not prejudice the defendant.'" Id., quoting
Commonwealth v. Santiago, 425 Mass. 491, 500 (1997), S.C., 427
Mass. 298, and 428 Mass. 39, cert. denied, 525 U.S. 1003 (1998).
See Commonwealth v. Kozec, 399 Mass. 514, 516-518 (1987).
The prosecutor's argument covered thirty pages of the trial
transcript. For the most part, it was highly structured and
grounded in the trial record. About one-third of the way
through his closing, when discussing the defendant’s testimony
that he was "scared" of the victim, that the victim was bigger
and ten years older, and that the victim had a reputation as a
"tough guy," the prosecutor argued as follows:
"Bad guy, tough guy, bad reputation. Where's the evidence
of that? Only out of his mouth. And when you consider the
credibility of witnesses in this case, you have to consider
bias, motive to lie. Who has the biggest interest in the
outcome of this case? This guy. He's the one on trial.
He's the one who wants to make you think poorly of [the
victim]. Because that helps him. Because then that starts
to make you think maybe the guy wasn't such a good guy.
16
Maybe this isn't such a big deal. There's no evidence of
that." (Emphases added.)
The defendant contends that the argument constituted an improper
missing witness argument. There is some force to the claim.
The argument implies, among other things we will discuss
shortly, a failure to call witnesses on the question of the
identity of the first aggressor. As such, it was improper
because the prosecutor did not first obtain judicial approval to
make a missing witness argument, see Commonwealth v. Pena, 455
Mass. 1, 16-17 (2009), and Mass. G. Evid. § 1111(a) (2015), and
because testimony from third-party witnesses regarding the
victim’s reputation would not be admissible. See Commonwealth
v. Adjutant, 443 Mass. 649, 664-665 (2005) (testimony by third-
party witnesses as to victim’s reputation for violent behavior
to establish that victim was first aggressor is inadmissible).
We discern another flaw in this argument. A prosecutor may
argue that a testifying defendant has an interest in the outcome
of a case and his credibility may be scrutinized on that basis,
see Commonwealth v. Ortega, 441 Mass. 170, 181-182 & n.19
(2004), but the argument must be understated and approached
cautiously. Here, it was not. The clear premise of the
prosecutor's argument is that the defendant's testimony, because
he was the defendant and on trial, did not even qualify as
evidence because it was inherently incredible. The argument was
17
patently improper. Cf. Commonwealth v. Scesny, 472 Mass. 185,
201-202 (2015) (prosecutor improperly described evidence
introduced by defendant as not material or relevant and
therefore not to be considered as evidence).
Toward the end of his argument the prosecutor focused on
the Cunneen factors that must be considered on the question of
extreme atrocity or cruelty. They are: indifference to the
victim's suffering, the consciousness and degree of suffering of
the victim, the number of stab wounds and physical punches
thrown, the manner and force with which the stab wounds were
inflicted, and the disproportion between the means needed to
cause death and those employed. See Commonwealth v. Cunneen,
389 Mass. 216, 227 (1983). This part of the prosecutor's
closing was very powerful, and proper. The prosecutor should
have stopped there. He ended his closing argument with a highly
improper, emotionally charged discussion covering three pages of
transcript.
The prosecutor built upon the Cunneen factors. He
commented that the civilian witnesses, who were "at the wrong
time at the wrong place," tried to save the victim, only to
"[see] the color run right out of him, right down to gray. And
they saw him struggling and bleeding in front of his own
father." The emotional impact on witnesses of the victim's
death was not a proper matter for consideration by the jury. In
18
contrast to the defendant's indifference, the prosecutor
developed a mantra of how "[the victim's] life mattered" to his
family, to the civilians who tried to save him, to the
paramedics who summoned heroic effort to try to save this "total
stranger," to the police who investigated the case, and "to all
of us." He ended with a statement that the victim "has as much
right . . . [to live as] this defendant . . . has an absolute
right to a fair trial. . . . [The victim] had a
[c]onstitutional right to live, to pursue whatever means of
happiness he chose to pursue.[3] . . . [H]e was a human being
just like any of us, and . . . there was an inherent value to
his life just like any of our lives." He asked the jury, on
behalf of the Commonwealth, to return "a fair and just verdict,"
adding that the victim "asks for no more, but he deserves
nothing less," because the defendant "chose . . . to end the
life of [the victim]" out of "anger."
It is improper for a prosecutor to characterize a criminal
trial as a dispute between a deceased victim on the one hand,
and the defendant on the other, and to exhort the jury to
dispense justice evenly between them. The deceased is not a
party to the case. A criminal trial places the interests of the
Commonwealth and the defendant against one another. An argument
3
The prosecutor had argued earlier that the victim "had
every right to have an acquaintance with Lisa Weaver, as well as
she did" with the victim.
19
that asks the jury to give justice to the victim is an improper
appeal to sympathy for the victim. See Commonwealth v.
Drumgold, 423 Mass. 230, 253 (1996). The prosecutor's improper
call to justice for the victim was aggravated by his inclusion
of the paramedics and the civilian witnesses to the victim's
last moments in his appeal to sympathy. Similarly, the
prosecutor's argument that the victim's life mattered, and that
the victim had a constitutional right to live, were improper
appeals to sympathy. See Commonwealth v. Torres, 437 Mass. 460,
464-465 (2002).
These improprieties were not just fleeting comments or
minor aspects of his closing argument, nor were they the type of
afterthought that we have said does not require reversal. See,
e.g., Commonwealth v. Judge, 420 Mass. 433, 451-452 (1995)
(single improper sentence appealing to sympathy does not require
new trial). The improper comments at the end of the closing
comprised a structural segment, indeed, the denouement of the
prosecutor's closing. This section of his argument was
integrated into his argument of the Cunneen factors,
particularly the defendant's indifference to the victim's
suffering. The juxtaposition of the defendant's indifference
with the effect of the killing on the paramedics, the civilian
witnesses, the police, and "all of us," for whom the victim's
life "mattered," was demonstrably improper. It suggested that
20
everyone's collective concern for the victim's life was a
legally relevant consideration of and, by way of contrast, an
illumination of the defendant's indifference to the victim's
suffering. Although jurors may be credited as having a "certain
measure of . . . sophistication in sorting out excessive
claims," Kozec, 399 Mass. at 517, the suggestion here was that
they properly and logically could consider the evidence of
heroic and humanitarian efforts to save the victim, and the
rhetoric of how his life "mattered" to everyone except the
defendant, on the question of the defendant's indifference to
the victim's suffering. The judge's general instructions on
evidence, sympathy, and arguments of counsel did not dispel that
notion. See Santiago, 425 Mass. at 501. He did not
specifically address the prosecutor's improprieties, which were
hard driving and sustained, and which went to a critical aspect
of the case. The prosecutor's argument far overshadowed the
defendant's assertion at trial that he was concerned for the
victim and did not realize that he was stabbing him.
The portion of the argument that presumed that the
defendant was not credible because he was on trial challenged
the heart of the defense, namely, the defendant's credibility as
to who was the initial aggressor, who produced the knife, and
whether the defendant had acted in self-defense. Again, the
21
judge's general instructions did not adequately address the
error.
Although there was no objection, which is some indication
of the level of prejudice, that is not dispositive.
Commonwealth v. Toro, 395 Mass. 354, 360 (1985). The
Commonwealth's case was strong, but it was not overwhelming. We
have serious concerns about the effect of the improprieties in
the prosecutor's closing argument on the jury's deliberations.
We need not decide if they created a substantial likelihood of a
miscarriage of justice because we have identified another error
in the course of our plenary review that, in combination with
the errors in the prosecutor's closing argument, require a new
trial. That error is discussed in the final section of this
opinion.
5. Jury instructions. The defendant asserts error in the
jury instructions. We address them because they may arise on
remand. First, he argues that the judge failed to instruct the
jury that in order to return a verdict of guilty of murder, the
jury must find that the Commonwealth proved beyond a reasonable
doubt the absence of mitigating circumstances, specifically, the
absence of excessive force in self-defense. Second, the
defendant contends that the instruction on manslaughter was
flawed because it used permissive language that failed to
require the jury to find manslaughter if the defendant used
22
excessive force in self-defense, and because it inconsistently
stated that the jury should consider manslaughter only if the
defendant lawfully was acting in self-defense. There were no
objections to the judge's instructions.
The Model Jury Instructions on Homicide (1999) in effect at
the time of the trial of this case, at page 27, contain the
instruction that "[i]n order to obtain a conviction of murder,
the Commonwealth must prove beyond a reasonable doubt the
absence of . . . mitigating circumstances," including "excessive
use of force in self-defense." The judge did not include this
instruction, and he should have included it. However, the judge
twice instructed the jury that to obtain a conviction of murder
the Commonwealth must prove beyond a reasonable doubt that the
defendant did not act in self-defense, and if it failed to do
so, then they must find the defendant not guilty. The judge
also instructed that if the Commonwealth proved beyond a
reasonable doubt that the defendant used excessive force in
defending himself (the judge defined excessive force in self-
defense), then the jury should return a verdict of guilty of
voluntary manslaughter. This was a correct statement of law.
See Commonwealth v. Glacken, 451 Mass. 163, 167 (2008);
Commonwealth v. Williams, 450 Mass. 879, 885 n.4 (2008);
Commonwealth v. McLaughlin, 433 Mass. 558, 563 (2001);
Commonwealth v. Little, 431 Mass. 782, 787 (2000); Commonwealth
23
v. Boucher, 403 Mass. 659, 663 (1989). It also conformed with
the Model Jury Instructions on Homicide (1999), at page 30.
There was no error, but we urge judges to adhere to the model
instructions on homicide. On remand, the 2013 version of the
Model Jury Instructions on Homicide should be followed.
The defendant's final argument fails. The judge erred by
his use of the permissive words "may" and "should"4 when
discussing use of excessive force in self-defense, rather than
the clearly directive "must." See Commonwealth v. Santos, 454
Mass. 770, 776-777 (2009). See also Commonwealth v. McLaughlin,
433 Mass. 558, 563 (2001) (where mandatory language is required,
permissive language should not be used). In Santos, a new trial
was required because the judge used permissive language and
"failed to make clear to the jury . . . that murder was
unavailable," and not an option, where the killing occurred as a
result of the use of excessive force in self-defense. Id. at
776. Here, the judge instructed the jury that "[i]f the
defendant used excessive force in defending himself in light of
all the circumstances, the defendant may be found guilty of no
more than manslaughter." Unlike the judge at the underlying
trial in Santos, the judge here made it abundantly clear that
murder was not an option if the Commonwealth proved that the
4
See Commonwealth v. Caramanica, 49 Mass. App. Ct. 376, 378
(2000) ("should" is permissive).
24
defendant used excessive force in lawfully defending himself.
Although the judge did not use the precise language used in the
Model Homicide Instructions (2013), at page 71, he anticipated
the basic instruction that has been approved for current use.
There is no merit to the defendant's claim that the judge
incorrectly instructed the jury that voluntary manslaughter is
the use of excessive force when lawfully defending oneself.
This was a correct formulation. As we said in Santos, "the use
of excessive force deprives the defendant of his right to be
acquitted altogether, entitling him instead to a verdict of
manslaughter." Santos, 454 Mass. at 775. There was no error.
6. Review under G. L. c. 278, § 33E. There was evidence
that the victim was the first aggressor, that the victim
introduced a knife during the fray, that the defendant was
fearful of the victim, and that the defendant swung the knife
wildly. This evidence, particularly the evidence of the
defendant's mental state, warranted an instruction on reasonable
provocation. The defendant was entitled to such an instruction,
and it would have been compatible with excessive force in self-
defense. Indeed, it probably would have been more favorable to
the defendant. Such an instruction, had it been given, would
have allowed the jury to find the defendant guilty of voluntary
manslaughter if they had a reasonable doubt as to whether the
victim initiated the fight by throwing the first punch. Counsel
25
should have requested such an instruction, and such an
instruction should have been given. See Commonwealth v.
Acevedo, 446 Mass. 435, 446-450 (2006). The cumulative effect
of the absence of this instruction and the errors in the
prosecutor's closing argument create a substantial likelihood of
a miscarriage of justice. The judgment is vacated.
The Commonwealth shall have the option of either retrying
the defendant on the murder indictment or accepting a reduction
of the verdict to manslaughter, which was the verdict urged by
the defendant at his first trial, and which is the verdict he
could best hope to obtain after a request for an instruction on
reasonable provocation. See Commonwealth v. Howard, 469 Mass.
721, 750 (2014). The Commonwealth shall inform this court
within fourteen days of the date this opinion issues whether it
will retry the defendant for murder in the first degree or move
to have the defendant sentenced for manslaughter. After the
Commonwealth so informs us, we will issue an appropriate
rescript to the Superior Court.
So ordered.