Com. v. LeClair

• Decision Date: 09 April 1999
• Citation: 708 N.E.2d 107,429 Mass. 313
• Parties: COMMONWEALTH v. Joseph A. LeCLAIR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 107

708 N.E.2d 107

429 Mass. 313

COMMONWEALTH v. Joseph A. LeCLAIR.

Supreme Judicial Court of Massachusetts,

Essex.

Argued March 2, 1999.

Decided April 9, 1999.

Charles K. Stephenson, Granby, for the defendant.

Marcia H. Slingerland, Assistant District Attorney (Gerald P. Shea, Assistant District Attorney, with her) for the Commonwealth.

Present: WILKINS, C.J., ABRAMS, LYNCH, FRIED, & IRELAND, JJ.

IRELAND, J.

The defendant was indicted for the murder of his fiancee. At trial, the defendant testified that he lost control and strangled the victim when she told him she recently had sexual intercourse with another man. It was his defense that her statement provoked his actions, and, therefore, he could not be guilty of murder in the first degree. After deliberating for several days, the jury found the defendant guilty of murder in the first degree. On appeal, the defendant argues that: (1) the judge's instructions on manslaughter were erroneous; (2) the judge should have used the phrase "cool reflection" in his instruction on premeditation; (3) he was denied his right to a jury of his peers by errors in the jury selection process; and (4) the cumulative effect of these errors created the substantial likelihood of a miscarriage of justice requiring us either to order a new trial or reduce the degree of guilt pursuant to our power under G.L. c. 278, § 33E. We affirm the conviction and see no reason to reduce the verdict or grant a new trial.

I

The defendant and the victim began dating in 1992. In 1993 they moved in together. The defendant testified that he and the victim became engaged in 1993. In the spring of 1995, the relationship began to deteriorate. The victim started going out socially without the defendant. This made the defendant jealous and precipitated several arguments between them. During one such argument, approximately one month prior to the murder, the defendant threatened the victim with a Samurai sword.

On the night before the murder, the victim drove the defendant to a bar in Revere, and, according to the defendant, agreed to pick him up after the bar closed. The victim then met a male friend at a bar in Chelsea. At approximately two o'clock the following morning, the defendant was driven home by a friend, Brian Doherty. On arrival at the defendant's home, the two consumed some wine and cocaine, and watched a pornographic movie. Doherty left the defendant's home at about 3:30 A.M.

The victim returned home at approximately 7 A.M. Shortly thereafter, a neighbor heard the victim yelling, "Joe, just leave me alone. Get away from me. I just want to go to sleep."

Later that morning the victim's former husband and their two children went to the victim's home. ¹ They went to the house to pick up some clothing for one of the children. The house was locked and there was no answer at the door. One of the children entered the home through a window and then let in the others. While inside the house, they found the victim dead in her bed.

At 2:09 that afternoon, police from North Berwick, Maine, were dispatched based on a telephone call from the defendant's sister. She told the police that the defendant had been to her house, told her he had killed someone in Massachusetts, and was going to kill himself. The North Berwick police subsequently located the defendant and placed him under arrest.

Later that afternoon, the defendant gave a statement to the Maine State police. In this statement, he described an argument he had had with the victim when she returned home that morning. At one point, the victim climbed into bed and pulled the sheets up over her head. The defendant continued to question her. "Then she said something about, something about a guy. That like [you're] not a guy [you're] a little boy or something." The defendant stated that in response he "just snapped," and strangled the victim.

That evening, while the defendant was still in Maine, the Massachusetts State police obtained a statement from him. The defendant repeated his story about the argument which had occurred when the victim returned home that morning. After the victim went to bed, the defendant went in to talk to her. "I said I just want to talk to you and I sat at the edge of the bed and she just like went off calling me names, baby, and [you're] nothing, I'm leaving you and I just ... I couldn't take it and I snapped.... I just grabbed her [and strangled her]."

The defendant took the stand and repeated his story about the argument that morning. He testified that, as he persisted in asking the victim where she had been, "she just blurted out that she was with a black guy and his dick was bigger than mine and then I just [strangled] her." The defendant went on to say that he then "went blank" and the next thing he remembered was having a cramp in his thumb and then he stopped strangling the victim.

II

The defendant's first argument is that the judge improperly instructed the jury on manslaughter. Specifically, the defendant cites as error the judge's instruction that words alone are insufficient provocation to reduce murder to manslaughter, without further instructing the jury that there is an exception to this general rule where a defendant learns, by way of an oral statement, of recent infidelity. In relevant part, the judge told the jury:

"Now, the provocation sufficient to reduce an intentional killing to manslaughter is that provocation which would likely produce in an ordinary person that state of passion, anger, fear, fright or excitement as might lead to an intentional homicide and does in fact actually produce that state of mind in this defendant. The law is clear that mere insulting words and threatening gestures alone with nothing else are not adequate provocation to reduce a killing from murder to manslaughter."

The defendant describes this instruction as "incomplete." The defendant requested an instruction tracking the language contained in Commonwealth v. Bermudez, 370 Mass. 438, 440-442, 348 N.E.2d 802 (1976), ² specifically: "The existence of sufficient provocation is not foreclosed absolutely because a defendant learns of a fact from oral statements rather than from personal observation. A reasonable man can be expected to control the feelings aroused by an insult or an argument, but certain incidents may be as provocative when disclosed by words as when witnessed personally." During the precharge conference, the judge "allowed in substance" this instruction. However, it was never given to the jury.

The defendant testified that the victim told him, on the morning of the murder, that she had had intercourse with another man earlier that morning. He argues that, because this supposed revelation was made immediately prior to his killing her, the judge should have instructed the jury that they could consider the statement in deciding if there was adequate provocation. The judge's failure to do so "effectively foreclos[ed]" the jury from considering if there was provocation sufficient to reduce the killing to manslaughter. The absence of the instruction was not objected to at trial. Therefore, the question is whether this omission created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Rosa, 422 Mass. 18, 29-30, 661 N.E.2d 56 (1996).

A killing is manslaughter if there is "provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused's temper to cool." Commonwealth v. Schnopps, 383 Mass. 178, 180, 417 N.E.2d 1213 (1981), S. C., 390 Mass. 722, 459 N.E.2d 98 (1984). The general rule is that words alone are insufficient provocation to reduce murder to manslaughter. See Commonwealth v. Anderson, 396 Mass. 306, 314, 486 N.E.2d 19 1985). We have recognized an exception to this general rule, however, where the words convey inflammatory information to the defendant. See Commonwealth v. Bermudez, supra at 440-442, 348 N.E.2d 802. A sudden oral revelation of infidelity may be sufficient provocation to reduce murder to manslaughter. See Commonwealth v. Schnopps, supra at 181-182, 417 N.E.2d 1213. But the revelation which is said to have precipitated the homicide must constitute a "sudden discovery" in order to reduce the degree of culpability. Commonwealth v. Andrade, 422 Mass. 236, 237-238, 661 N.E.2d 1308 (1996). Commonwealth v. Brown, 387 Mass. 220, 228, 439 N.E.2d 296 (1982).

The evidence presented in this case forecloses a finding that there was a "sudden discovery" which provoked the attack on the victim. On the day of the murder, the defendant gave a tape-recorded statement to Detective Robert Slattery of the Maine State police. ³ In this statement the defendant stated that for several weeks prior to the murder he had suspected that the victim was seeing someone else. He suspected this because she would go out at night without him and would not return until early the following morning. Furthermore, the defendant testified at trial to having these suspicions. Where the defendant harbored these suspicions for a significant time prior to the victim's asserted revelation that she had, in fact, been unfaithful, he cannot successfully claim that her statement to him constituted a "sudden discovery." Commonwealth v. Brown, supra at 228, 439 N.E.2d 296. "Assuming the truth of these statements, they do not, in the circumstances, rise to the level of a 'sudden provocation' sufficient to reduce murder to manslaughter." Id. Because he had agreed to do so at the precharge conference, it would have been better for the judge to have included the qualifying language sought by the defendant in the jury charge. However, on the facts of this case we cannot say that the omission created a substantial likelihood of a miscarriage of justice. ⁴ See Commonwealth v. Ruddock, 428 Mass. 288, 291-292, 701 N.E.2d 300 (1998).

III

The defendant next cites as error...