Com. v. Acevedo
| Decision Date | 04 April 2006 |
| Citation | 845 N.E.2d 274,446 Mass. 435 |
| Parties | COMMONWEALTH v. German ACEVEDO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Leslie W. O'Brien, Boston, for the defendant.
Kevin J. Curtin, Assistant District Attorney (Michael Bank, Special Assistant District Attorney, with him), for the Commonwealth.
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.
The defendant was indicted for murder in the first degree for the stabbing death of Charles McCullough during a fight. At trial, defense counsel argued for acquittal based on self-defense, and the trial judge instructed the jury on self-defense, voluntary manslaughter based on excessive force in self-defense, and involuntary manslaughter. The jury convicted the defendant of murder in the second degree. The defendant appealed from the conviction and filed a motion for a new trial, arguing that the failure of the judge to instruct the jury on voluntary manslaughter based on reasonable provocation created a substantial risk of a miscarriage of justice, and that defense counsel's failure to request such an instruction constituted ineffective assistance. This motion was denied by the judge after a nonevidentiary hearing. The defendant's appeal from the order denying his motion for a new trial was consolidated with his direct appeal, and in an unpublished memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed the order and the conviction. Commonwealth v. Acevedo, 63 Mass. App.Ct. 1106, 824 N.E.2d 486 (2005). We granted the defendant's application for further appellate review, and we now reverse both the order and the conviction.
1. Background. a. The Commonwealth's case. On November 17, 2000, Crystal Graham, a high school student, hosted a party at her home in Lowell after a school dance. Charles McCullough, Graham's former boy friend, attended the party.1 When the defendant and four of his friends arrived at the party, they argued with McCullough, who accused them of stealing his headlights. Graham told the defendant and his friends to leave if they were going to fight, and they left the party.
Approximately forty-five minutes later, the defendant and his friends returned to the party.2 Another argument involving the defendant and McCullough ensued. The argument escalated into a physical confrontation when two of the defendant's friends punched McCullough. Graham demanded that everyone leave, and the defendant and his friends suggested taking the fight outside. Once outside, McCullough challenged the defendant to fight "one on one," and they stepped toward each other, into the middle of a circle of people. McCullough, who was unarmed, punched the defendant in the head, and the defendant appeared to be punching McCullough's chest: no one else was involved in the fight. After ten seconds, McCullough fell back, holding his chest, and shouted that the defendant had stabbed him.
Although none of the Commonwealth's witnesses had seen a knife, McCullough had been stabbed five times. One wound penetrated his heart, and another perforated his liver: both injuries caused McCullough to lose a significant amount of blood quickly. McCullough collapsed in the street, and the defendant and his friends fled. When police arrived on the scene, at approximately 3 A.M., McCullough, still alive, was able to tell an officer that the defendant had stabbed him. He was pronounced dead when he arrived at a hospital.
The police questioned the defendant later that morning. During his first interview, the defendant told police that he left Graham's party because McCullough tried to start a fight with him. He later returned to the party, and a fight broke out. The defendant claimed that McCullough and his friends jumped on him and hit him when he tried to break up the fight.3 The defendant denied that he had carried a knife or that he had stabbed anyone.
In a second interview, the defendant described in greater detail McCullough's aggressive behavior toward him when he arrived at the party.4 He told police that several men from the party attacked him as he left, and he was able to escape with the help of his friends. The defendant said that McCullough was part of the group that attacked him, but he did not know whether McCullough had struck him. He again denied having a knife or stabbing McCullough.
The third time the defendant spoke to detectives that day he said that he and his friends left the party after McCullough started an argument, but McCullough and his friends followed them outside and insisted that they fight. He saw McCullough approach him with a clenched fist, then someone else knocked him to the ground, and four or five people started punching him in the head. Fearing for his life because he was outnumbered, the defendant pulled out his knife and swung it three or four times. After he heard MuCullough say that he had been stabbed, he got into his friend's car and drove away. The defendant told the police that he did not intend to kill anyone that night: he stabbed McCullough because he was scared and trying to protect himself.
b. The defendant's case. The defendant did not deny stabbing McCullough, but his version of events differed significantly from the Commonwealth's. Testifying on his own behalf at trial, the defendant explained that he and his friends went to Graham's party, but they left because McCullough was "trying to start" trouble. They returned to the party later, hoping that more people had arrived. They again encountered McCullough, who started an argument with two of the defendant's friends that escalated into a physical confrontation. After McCullough challenged them to "rumble," the defendant decided to leave the party and ran outside, followed by his friends and other party guests. He tried to get into a friend's car but, finding it locked, he joined his friends in the crowd that had gathered on the street. The defendant and his friends walked backward across the street as McCullough and his friends approached them. The defendant saw McCullough look at him, bite his lip, make a fist, and run toward him. Someone hit the side of the defendant's face, knocking him to the ground. He felt people beating him about the head and attempted to push them away, but could not. The defendant then pulled his knife from his pocket, opened it, and swung it several times.5 After he heard McCullough cry out that he had been stabbed, he ran to his friend's car. The defendant threw the knife out the window as they drove over a bridge.
The defendant explained that he feared for his life because he was outnumbered and could not get away from his attackers: by his estimation, there were at least fifteen men, including McCullough, involved in the confrontation. On cross-examination, the defendant admitted that he could have run after discovering the cars were locked, but he did not want to leave his friends. He also acknowledged that McCullough was not the first person to hit him, and that when he fell backward, he could not see who was punching him.
Two of the defendant's friends who attended the party with him that night also testified for the defense.6 They corroborated the defendant's testimony that he left the party after a fight started; that a large crowd gathered outside; and that a group of men, including McCullough, surrounded the defendant, knocked him to the ground, and hit him. Both witnesses testified that they saw McCullough punch the defendant twice before the group closed in on him.
c. Instructions. At the close of evidence, defense counsel orally requested jury instructions on manslaughter, without specifying a theory, and involuntary manslaughter.7 The Commonwealth argued that jury instructions on any theory of manslaughter were not warranted because, even in the light most favorable to the defendant, the evidence did not show that he acted based on heat of passion, reasonable provocation, or sudden combat. The Commonwealth also argued that the defendant was not entitled to an instruction on self-defense. Over the Commonwealth's objection, the judge instructed the jury on self-defense, voluntary manslaughter based on excessive force in self-defense, and involuntary manslaughter. The judge did not provide instructions on reasonable provocation or sudden combat. Defense counsel did not object to the instructions.
On the second day of deliberations, the jury submitted a question to the judge, set out in the margin, asking if a manslaughter verdict could be returned if a dangerous weapon were involved in the killing.8 While discussing the appropriate response, defense counsel stated that he had no objection to the judge's proposed instruction that the jury could not return a verdict for voluntary or involuntary manslaughter if they determined that the defendant had not acted in self-defense. The Commonwealth agreed, and the jury were so instructed.9 On the third day of deliberations, the jurors submitted another question, inquiring if there were any mitigating circumstances, other than excessive force in self-defense, that could negate malice and reduce murder to manslaughter.10 After discussing the issue with counsel, the judge reinstructed the jury on malice and informed them, again without objection, that there were no mitigating circumstances to consider other than excessive force in self-defense.11 The jury returned their verdict finding the defendant guilty of murder in the second degree approximately forty minutes after the judge answered their second question.
The defendant timely appealed from his conviction. Later, represented by new counsel, he filed a motion for a new trial, arguing that the omission of a jury instruction on reasonable provocation created a substantial risk of a miscarriage of justice, and that trial counsel's failure to request such an instruction...
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