Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. Howard

Supreme Judicial Court of Massachusetts, Middlesex

March 5, 2018


          Heard: December 8, 2017.

         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.

          Present: Gants, C.J., Gaziano, Lowy, & Cypher, JJ.

          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 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. 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 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 9A.M., and began his ordinary routine. A few minutes after 10A.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]

         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 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 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." 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 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 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 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. Rodriguez, 461 Mass. 100, 107 (2011); Commonwealth v. Clemente, 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); Rodriguez, 461 Mass. at 107 (no sudden combat where victim walked "hastily" toward defendant, without any accompanying physical gestures indicating intended violence); Commonwealth ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.