Supreme Judicial Court of Massachusetts, Plymouth
Heard: May 15, 2019.
found and returned in the Superior Court Department on
December 12, 2014. The case was tried before Richard J. Chin,
J., and a motion for a new trial, filed on December 26, 2017,
was heard by him.
M. Kenneally for the defendant.
L. Kelley, Assistant District Attorney, for the Commonwealth.
Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, JJ.
convicted the defendant of murder in the first degree. In a
motion for a new trial, the defendant argued that his trial
counsel was constitutionally ineffective for failing to
request a voluntary manslaughter jury instruction based on
reasonable provocation stemming from the defendant's
reaction to an injury to his penis that the victim inflicted
during a sexual encounter. The motion was denied. We conclude
that the motion judge abused his discretion in determining
that trial counsel's decision to not request a voluntary
manslaughter instruction was a reasonable tactical choice.
Accordingly, we vacate the jury's verdict and remand the
matter to the Superior Court for a new trial consistent with
we are called upon to determine whether an instruction on
voluntary manslaughter was warranted, we recite the facts in
the light most favorable to the defendant, reserving certain
facts for later discussion. See Commonwealth
v. Howard, 479 Mass. 52, 57 (2018).
September 8, 2014, the victim left her home in Brockton after
having an argument with her daughter. At approximately 9
P..M., the victim met the defendant, whom she had not
previously known. The pair spent the evening smoking
marijuana and drinking together. Surveillance video captured
them walking on Main Street between 10 and 11 P.M., at one
point walking with their arms intertwined.
10:56 P.M., video appears to show the defendant and the
victim entering a nearby garage bay where a local towing
company stored many of its vehicles. Ten minutes later,
surveillance shows the defendant leaving the garage bay
alone, carrying a bag similar to the bag the victim was seen
carrying earlier in that night. Shortly thereafter, a tow
truck driver arrived at the garage, unaware that the victim
lay on the floor injured. He backed the truck into the bay,
running over the victim's body.At that time, the victim was
still alive. She was taken to a hospital and pronounced dead
at 11:57 P.M.
jury heard testimony from both the doctor who examined the
victim at the hospital and the doctor who performed her
autopsy. When the victim arrived at the hospital, she was
wearing only a shirt. She had no pulse. The emergency room
doctor described the victim's numerous injuries,
including head trauma and facial swelling, a broken pelvis,
fluid in her abdomen, and an ankle injury. The victim had
three star-shaped wounds to her head, evidence of a skull
fracture, blood in her ear canals, and a swollen eye. Her
head injuries were severe and, in the emergency room
doctor's opinion, inconsistent with being struck by a tow
truck. The medical examiner reiterated that the victim had
several blunt force injuries to her head and face and severe
internal injuries, which were caused by an incident separate
from the incident that caused the head injuries.
expert also testified for the defendant. All three experts
agreed that the victim suffered at least three head injuries,
and there was conflicting testimony whether the head injuries
would have been fatal even had the victim not subsequently
been hit by the tow truck. Only the defendant's expert
opined that the victim's head injuries were not
independently fatal. Bloody tracks from the truck's tires
indicated that the victim's head injuries had occurred
before she was hit by the truck.
the defendant was being booked at the police station, he
showed police an injury that one officer described as a
"dime size chunk taken out of the tip of his
penis." A friend of the defendant's testified that
the defendant told him that he had been drinking and smoking
marijuana with a girl on the night the victim was killed,
that "she was giving him a blow job and she bit his
privates" and that "she bit him hard." The
friend further stated that ...