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Commonwealth v. Rhodes

Supreme Judicial Court of Massachusetts, Plymouth

August 16, 2019

COMMONWEALTH
v.
GEORGE T. RHODES, JR.

          Heard: May 15, 2019.

         Indictment 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.

          Joseph M. Kenneally for the defendant.

          Keara L. Kelley, Assistant District Attorney, for the Commonwealth.

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

          LOWY, J.

         A jury 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 this opinion.[1]

         Background.

         Because 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).

         On 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.

         At 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.[2]At that time, the victim was still alive. She was taken to a hospital and pronounced dead at 11:57 P.M.

         The 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.

         An 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.

         While 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 ...


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