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 ...