Commw. v. Little

• Decision Date: 05 May 2000
• Docket Number: SJC-07949
• Parties: (Mass. 2000) COMMONWEALTH, v. MESHACH LITTLE No.: Argued:
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 304

730 N.E.2d 304 (Mass. 2000)

COMMONWEALTH, v. MESHACH LITTLE

No.: SJC-07949

SUPREME COURT OF THE STATE OF MASSACHUSETTS, Suffolk

Argued: May 5, 2000.

Decided: June 21, 2000.

Linda J. Thompson for the defendant.

Christopher Pohl, Assistant District Attorney, for the Commonwealth.

Marshall, C.J., Abrams, Greaney, Spina, & Cowin, JJ.

GREANEY, J.

A jury in the Superior Court convicted the defendant of murder in the first degree on the theory of extreme atrocity or cruelty and of unlawful possession of a firearm.¹ He is represented by new counsel on appeal. We conclude that errors in portions of the instructions to the jury on voluntary manslaughter created a substantial likelihood of a miscarriage of justice. Accordingly, we reverse the defendant's conviction of murder in the first degree and remand that indictment for a new trial.

1. There was no dispute that the defendant shot and killed the victim during an argument. The main issues at trial were whether the defendant had committed murder or acted in self-defense, or, if the killing was unlawful, whether the defendant was guilty only of manslaughter. We reject at the outset the defendant's argument that he was entitled to a required finding of not guilty on the charge of murder in the first degree because the evidence pertaining to sudden combat, provocation, and the use of excessive force in self-defense, as matter of law, negated the malice necessary to find murder in the first degree by reason of extreme atrocity or cruelty. The evidence in the Commonwealth's case, considered under the standard governing a motion for a required finding of not guilty, see Commonwealth v. Gunter, 427 Mass. 259, 264-265 (1998), and cases cited, was sufficient to warrant the jury's finding that the Commonwealth had proved, beyond a reasonable doubt, that the defendant had acted with the malice necessary to convict him of murder in the first degree by reason of extreme atrocity or cruelty.

2. The dispositive issue in this case concerns the correctness and effect of portions of the judge's instructions on voluntary manslaughter. The Commonwealth acknowledges that there were errors in the manslaughter instructions, but maintains that they are of no legal significance because the defendant was not entitled to instructions on the disputed points, and, even if he was so entitled, the instructions, considered as a whole, could not have misled the jury.

We must first summarize the evidence most favorable to the defendant on the issues of self-defense and voluntary manslaughter, because it is from that viewpoint that we assess the need for, and adequacy of, the criticized jury instructions. See Commonwealth v. Barros, 425 Mass. 572, 575 (1997); Commonwealth v. Walden, 380 Mass. 724, 726 (1980).

In the early evening of January 26, 1996, the defendant and a friend (Jesse Calhoun) encountered the victim (Vishon Robinson) and three of Robinson's friends (Christopher Steele, Regina DePina, and Yolanda DePina), in the Jamaica Plain section of Boston. The defendant was on crutches, and his left foot was in a cast, due to a recent operation. The defendant, aware that Robinson had a dispute with Calhoun over cocaine, warned Calhoun to "[p]ull [Robinson] around the corner, talk to him in private, so he don't . . . try to get loud or stuff." Calhoun and Robinson went around the corner to talk "in private." When they reappeared, they were arguing, with Robinson, who was over six feet tall, challenging Calhoun, who was approximately five feet, four inches tall, to a fight. Some words were exchanged about "straps" (weapons). When Robinson tried to "walk up on" Calhoun, the defendant told Robinson to leave Calhoun alone, and swung one crutch at Robinson, without hitting him. Robinson then turned on the defendant. At this point, Calhoun's sister called from the window of his third-floor apartment in a nearby building, for Calhoun and the defendant to come upstairs. Robinson said to the defendant, "I'll be right back. Wait right there." The defendant responded, "Man, you better go ahead, before you don't have a chance to come back," and opened his jacket to show Robinson that he had a handgun.² Testifying for the Commonwealth, Steele stated that he saw a black handle and warned Robinson that the defendant had a handgun. Robinson left, yelling, "Whatever, you want to bring weapons into it, we can bring guns and knives, whatever. I'll see you then." The defendant told Robinson to "[j]ust leave it alone, man. Leave us alone. You know what I'm saying. Go ahead." The defendant and Calhoun then went up to Calhoun's apartment.

Upstairs in the apartment, the two listened to music and kept watch by the window, waiting for the crowd still out in front of the building to leave. The defendant testified that he knew Robinson as "one of the guys that hang around that area" and knew that he carried a handgun. (Calhoun testified that Robinson sold drugs and carried a handgun, and Steele also stated that Robinson had carried a handgun in the past.) After a short time, satisfied that there was no one outside, the defendant and Calhoun left the apartment. The two were walking along the sidewalk when an automobile pulled past them and slowed. Before the automobile had fully stopped, Robinson got out. Four of Robinson's friends (Steele, Yolanda and Regina DePina, and Danielle Smith) also got out, and the driver drove away.

The defendant testified that he was nervous, because he thought that Robinson was going to start shooting as soon as he got out of the automobile. According to Steele, Robinson approached the defendant, yelling, "I'll fuck you up," and the defendant told Robinson, "You better go ahead." Robinson kept advancing on the defendant, saying, "Go ahead what? We can do this however you want to do this." Again, the defendant told him to "leave it alone." The defendant testified that "he kept coming towards me." The defendant unzipped his jacket and put his hand inside, and warned Robinson not to "come close on [him] like that." When Robinson kept coming, the defendant, balanced on one crutch, pulled his handgun out and pointed it at Robinson, who had his hands in his pockets. The defendant, thinking "[Robinson] was going to come out with a gun," pulled the handgun's hammer back.

The defendant testified that he was scared, because he was in a strange neighborhood and he could tell that Robinson was "high." (There was medical evidence that Robinson had cocaine in his system when he was killed, and the Commonwealth stipulated that the victim, at a hospital, "spit out five small bags of white powder," believed to be crack cocaine.) Aware that Robinson knew the defendant had a handgun, the defendant believed that Robinson had returned in the automobile to shoot him. The defendant stated, "Yo, man. Go ahead, man" (meaning to leave him alone).

Robinson then "made a motion like he was going for his hip." At trial, the defendant demonstrated this motion for the jury, explaining that Robinson went back with his hand to his back. The defendant thought, "If he gets that gun, he [is] going to shoot me," and began shooting. The defendant fired seven shots from his semiautomatic handgun in rapid succession. Then, still on crutches, he ran. No handgun was found on the victim, who died later that night at a hospital.

In Commonwealth v. Berry, ante 326, 334 (2000), we recently stated the principles on when, in a murder case, instructions on voluntary manslaughter are required:"'If any view of the evidence . . . would permit a verdict of manslaughter rather than murder, a manslaughter charge should be given.' Commonwealth v. Brooks, 422 Mass. 574, 578 (1996). One of the mitigating circumstances that would render the crime a voluntary 'manslaughter . . . [is] a killing from a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice or upon sudden combat.' Commonwealth v. Walden, 380 Mass. 724, 727 (1980), quoting Commonwealth v. Soaris, 275 Mass. 291, 299 (1931). 'In order for a jury to find that a "defendant formed an intent to kill in a transport of passion or in the heat of blood, . . . [t]here must be evidence that would warrant a reasonable doubt that something happened [i.e., provocation] which would have been likely to produce in an ordinary person such a state of passion, anger, fear, fright, or nervous excitement as would eclipse his capacity for reflection or restraint, and that what happened actually did produce such a state of mind in the defendant."' Commonwealth v. Amaral, 389 Mass. 184, 188 (1983), quoting Commonwealth v. Walden, supra at 727-728. Commonwealth v. Pitts, 403 Mass. 665, 667 (1989)."

We conclude, based on the evidence most favorable to the defendant, that he was entitled to instructions on self-defense, voluntary manslaughter, and the use of excessive force in self-defense. The Commonwealth's own evidence was that the victim was the aggressor in the incident that led to his death. It is undisputed that the victim advanced on the defendant, who was on crutches, despite his knowledge that the defendant was armed, while the defendant urged him to leave. The defendant testified that he was scared because he believed that the victim, who was known to the defendant to have carried a handgun in the past, had a handgun and that he was going to use it. The victim made a move with his hand to his hip, as if he were reaching for a handgun. This evidence would permit the jury to find that the defendant had a reasonable belief that he was in imminent danger of being killed or seriously injured with no reasonable means of escape, and so acted in self-defense.³ The jury might also find that, as a result of the victim's hostile behavior, the defendant shot his handgun in the heat of passion, provoked by the above circumstances. Cf. Commonwealth v. Medina, 430 Mass. 800, 809- 810 (2000) (nothing to suggest that circumstances would produce state of...