91 N.E.3d 1108
Mass.2017Background
- Defendant and victim were coworkers with prior workplace altercations (forklift incident, car collision); victim was younger and larger.
- On Jan. 28, 2009, a heated verbal confrontation in the warehouse escalated; surveillance and eyewitness Najarian saw the victim step toward his right side and then run; defendant drew a gun and fired, pursuing the victim into a fenced yard and firing additional shots; victim died from a close-range shot to the back of the head.
- Defendant claimed fear of the victim (recounting prior threats and a sledgehammer encounter) and offered expert testimony diagnosing PTSD and asserting a dissociative, fear-driven state; Commonwealth’s expert disagreed.
- At trial, defendant was convicted of first-degree murder (deliberate premeditation). Defendant challenged the denial of a requested sudden-combat manslaughter instruction, aspects of provocation and lesser-offense instructions, dismissal of a juror, and admission of prior-bad-act evidence.
- The judge had instructed on voluntary manslaughter based on reasonable provocation (but not sudden combat); a juror who later disclosed personal trauma and that the defense expert’s testimony resonated with her was dismissed; brief testimony about the defendant having once had a rag-wrapped object that looked like a gun in his vehicle was admitted to rebut the claim he only later began carrying a gun because of the victim.
- Appellate issues: whether instructions and juror dismissal were erroneous, whether prior-bad-act testimony was improperly admitted, and whether relief under G. L. c. 278, § 33E was warranted.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Howard) | Held |
|---|---|---|---|
| Denial of sudden-combat manslaughter instruction | No instruction required because evidence did not show an attack or exchange of blows | Jury should have been instructed on sudden combat as a form of manslaughter | Affirmed; no sudden combat evidence (no blow/attack) so instruction properly denied |
| Reasonable-provocation instruction language | Instruction accurately stated law and limited words/gestures as insufficient absent other facts | Language excluding "threatening gestures" negated defense and precluded manslaughter finding | No reversible error; instruction permissible and facts did not show gestures rose to provocation |
| Lack of soft-transition instruction on lesser-included offenses | Charge adequately informed jury to consider mitigating circumstances and manslaughter before convicting of 1st-degree murder | Absence of soft-transition forced an "acquittal first" procedure harming deliberations | No error; instructions, viewed together, allowed consideration of manslaughter prior to conviction |
| Dismissal of empaneled juror after note | Juror’s disclosure that expert testimony resonated risked impartiality; dismissal was warranted in interests of justice | Dismissal was improper and prejudicial | Affirmed; judge acted within discretion to excuse juror who indicated she had been influenced by testimony |
| Admission & limiting instruction for prior gun-sighting testimony | Testimony admissible to rebut defendant’s claim he began carrying a gun only after victim’s conduct; limiting instruction given | Admission prejudiced defendant; limiting instruction focused improperly on state of mind | Admission within discretion; limiting instruction wording imperfect but error harmless given minimal role of testimony |
Key Cases Cited
- Commonwealth v. Cruz, 445 Mass. 589 (discussing review for prejudicial error)
- Commonwealth v. Nelson, 468 Mass. 1 (defendant-entitled standard for manslaughter instruction)
- Commonwealth v. Colon, 449 Mass. 207 (same manslaughter-instruction principles)
- Commonwealth v. Webster, 5 Cush. 295 (definition and discussion of sudden/mutual combat)
- Commonwealth v. Espada, 450 Mass. 687 (sudden combat requires victim to attack or strike a blow)
- Commonwealth v. Camacho, 472 Mass. 587 (relation between sudden combat and reasonable provocation)
- Commonwealth v. Little, 431 Mass. 782 (when victim’s approach/gesture can support provocation instruction)
- Commonwealth v. Lally, 473 Mass. 693 (limits on admitting prior bad acts and permissible purposes)