Commonwealth v. Whitman

• Decision Date: 09 February 2000
• Citation: 430 Mass. 746,722 NE 2d 1284
• Parties: COMMONWEALTH v. JOHN P. WHITMAN, THIRD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 746

722 NE 2d 1284

COMMONWEALTH v. JOHN P. WHITMAN, THIRD.

Supreme Judicial Court of Massachusetts, Plymouth.

October 4, 1999.

February 9, 2000.

Present: MARSHALL, C.J., ABRAMS, LYNCH, GREANEY, & IRELAND, JJ.

Wendy H. Sibbison for the defendant.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.

MARSHALL, C.J.

The defendant, John P. Whitman, III, was indicted for the stabbing death of Kenneth Palma, the victim. The case was submitted to the jury with instructions on murder in the first degree, murder in the second degree, and voluntary manslaughter. The defendant was convicted of voluntary manslaughter. He was sentenced to a prison term of from sixteen to twenty years. He appealed and we granted the defendant's application for direct appellate review. The defendant makes three principal arguments on appeal: (1) the jury instructions violated due process by failing to state that the Commonwealth bore the burden of proving a culpable mental state (mens rea) for voluntary manslaughter, i.e., some form of intent; (2) the instructions violated due process by including confusing, mistaken, and contradictory instructions on the law of self-defense and provocation; and (3) trial counsel's failure to object to these errors constituted ineffective assistance of counsel.¹ Because we determine that the instructions, to which there were no objections, taken as a whole did not create a substantial risk of a miscarriage of justice, and because there was no showing of ineffective assistance of counsel, we affirm the conviction.

I

Undisputed testimony at trial established that the defendant, the victim, and his wife, Pamela, met in April, 1994, and became friends, and that the defendant frequently spent the night at the Palmas' house. Despite their friendship, the defendant and the victim often argued. There was evidence suggesting the victim may have had grounds for jealousy concerning his wife's relationship with the defendant.

On the night of the stabbing, June 21, 1994, the defendant had dinner at the Palmas' house and worked on his car radiator in their yard. Mrs. Palma testified she and her husband had spoken earlier of the tension at home, caused in part by the defendant's presence, and her husband told her the defendant had to go. The victim then opened and closed a knife in his hand and threatened his wife, "Half joking. Half not joking," by her account, that he would "slice" her throat and then kill the defendant if he found out they were "fooling around." The defendant testified that he was present when this statement was made, and testimony at trial would tend to confirm his account.

Mrs. Palma testified she left the house for a walk, but returned when she heard male voices yelling. As she approached she saw the victim and the defendant standing face to face in the yard, arms flailing.² The victim then backed up, put his hand on his left side and said to her, "Pam, I think I am bleeding." The victim stumbled and his wife helped him get to the front porch and yelled for their daughter to dial 911.

The defendant offered the following testimony about the altercation. The victim came out of the house while the defendant was working on his car and chased the defendant with a flare gun, saying he would shoot the defendant if he did not get off the property. The victim eventually went into the house but then came back out and grabbed the defendant from behind, squeezing his neck and trying to choke him.³ The defendant testified he could not breathe and thought the victim was going to kill him. As the victim was squeezing his neck, the defendant grabbed the knife he had been using to cut radiator hose. The victim asked if he was "going to use it," and the defendant responded, "You're fucking right." Then the defendant took the knife and "stuck it into" the victim. He did not know how many times he struck the victim with the knife; the defendant was not even certain he had stabbed him. He was "just flailing," with the knife, "scared because [the victim] had [him] in such a grip." He thought he struck the victim's sweater. The defendant also testified that he "got him that way right to his chest.... And then I just stabbed him this way and I got him into the back from bent over this way...."

The defendant acknowledged that in his videotaped statement to the police at his booking he said he got loose from the victim's grasp, and testified that "[m]aybe that's when I cut him under the arm."⁴ The defendant also testified, however, that none of his strikings with the knife, except perhaps the last, caused the victim to let go. The defendant said he then passed out. When he came to, he ran next door and threw the knife in the bushes. When he returned to the house, he saw that the victim was bleeding. He also testified that he was "pretty angry" and could have said to Mrs. Palma, "I don't know why you give a fuck. He never gave a fuck about you." The defendant himself sustained no cuts, scrapes, or injuries.⁵

The victim died on July 1, 1994. The vascular surgeon who operated on him on the night of the stabbing testified that he had been stabbed five times: once in the arm, twice in the back, and twice in the chest. The two chest wounds were "fatal wounds," penetrating five to six inches, injuring the heart. The medical examiner who performed the autopsy testified that the cause of death was the multiple stab wounds, particularly the two that penetrated the heart and left lung.

II

We turn first to the asserted errors in the jury instructions.

A

The defendant argues that the judge's instructions to the jury never informed them that voluntary manslaughter includes a culpable state of mind. The defendant urges that the mens rea for voluntary manslaughter is the specific intent to kill.⁶ The defendant further asserts that the judge's malice instructions were flawed in their omission of the Commonwealth's burden to prove absence of mitigating circumstances, and that the instructions improperly explained voluntary manslaughter as "simply" an unlawful killing. Because defense counsel at trial failed to object to the instructions, we review any error in the instructions to determine whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, ante 8, 13 (1999); Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).

The judge's instructions were addressed here to a killing in which the defendant was indicted for murder, but where evidence of mitigating circumstances raised the possibility that the killing was the lesser included offense of voluntary manslaughter. Voluntary manslaughter in this context is a crime that would otherwise be murder if "a killing arises `from a sudden transport of passion or heat of blood upon a reasonable provocation' or `upon sudden combat.'" Commonwealth v. Boucher, 403 Mass. 659, 662 (1989), quoting Commonwealth v. Soaris, 275 Mass. 291, 299 (1931).⁷ In addition, "`[t]he provocation that justifies reasonable action in self-defense also negates a finding of malice in any killing that results from the use of excessive force' in response to the initial provocation." Ariel A. v. Commonwealth, 420 Mass. 281, 285 (1995), quoting Commonwealth v. Boucher, supra at 664.⁸ See Commonwealth v. Acevedo, 427 Mass. 714, 716 (1998); Model Jury Instructions on Homicide 27 (1999). Thus, "[i]f a person kills another in the heat of passion, which is occasioned by adequate and reasonable provocation, or in sudden combat, then even though that person had an intent to kill, the killing is designated manslaughter and not murder because of the mitigating circumstances." Commonwealth v. Acevedo, supra.

The judge twice instructed the jury on manslaughter. The first comprehensive instructions on murder (in the first and second degrees) and manslaughter were given before the jury began their deliberations. Later, in response to a question from the jury concerning the definition of murder in the second degree and manslaughter, the judge gave supplemental instructions. In his initial instructions on murder, the judge properly defined murder in the first degree as requiring that the Commonwealth prove three elements beyond a reasonable doubt: (1) an unlawful killing, (2) malice aforethought, and (3) deliberate premeditation or extreme atrocity or cruelty. See, e.g., Commonwealth v. Judge, 420 Mass. 433, 437 (1995).

He then instructed that a conviction of murder in the second degree would require the Commonwealth to prove beyond a reasonable doubt two elements: (1) an unlawful killing and (2) malice aforethought. The judge defined malice aforethought in the context of murder in the second degree to include "an unexcused specific intent to kill or an unexcused specific intent to do grievous bodily harm or an unexcused intent to do an act creating a plain and strong likelihood that death would follow."⁹ He thus made clear to the jury that a conviction of murder would require a finding of some form of culpable intent or its equivalent.

The judge did not make clear, however, that where, as here, evidence of provocation has been raised, for a conviction of murder in the second degree the Commonwealth would also have to prove the absence of provocation beyond a reasonable doubt. In a murder case where evidence has raised the possibility of provocation and voluntary manslaughter may be at issue, proof of malice requires proof of the absence of provocation.¹⁰ See Commonwealth v. Carlino, 429 Mass. 692, 694 (1999), quoting Commonwealth v. Acevedo, 427 Mass. 714, 715 (1998); Commonwealth v. Boucher, 403 Mass. 659, 661 (1989). See also Ariel A. v. Commonwealth, supra at 286 ("manslaughter depends on evidence establishing what logically may be referred to as an additional element not present in murder," provocation sufficient to mitigate an unlawful killing); Model Jury Instructions on Homicide 27 (1999) (for murder case in which voluntary manslaughter is "co...