provocation instruction in Massachusetts

2004There was no specific objection to the instruction as given. 13 The Commonwealth now points out that the judge’s instruction on provocation contravened Commonwealth v. Acevedo, 427 Mass. 714, 716 (1998). 14 . 15 We agree, but conclude that the error did not prejudice the defendant, because we are not persuaded that the evidence warranted any instruction on provocation. 16 A provocation instruction need not be given unless there is evidence, viewed in the light most favorable to the defendant, that is “sufficient to create a reasonable doubt in the minds of a rational jury that a defendant’s ac

2002A burden-shifting error in a provocation instruction is prejudicial if the defendant was entitled to such a charge, see Commonwealth v. Acevedo, supra at 717 , and this defendant was so entitled.

2008“A provocation instruction need not be given unless there is evidence, viewed in the light most favorable to the defendant, that is ‘sufficient to create a reasonable doubt in the minds of a rational jury that a defendant’s actions were both objectively and subjectively reasonable.’ ” Commonwealth v. Zagrodny, 443 Mass. 93, 106 (2004), quoting Commonwealth v. Groome, 435 Mass. 201, 220 (2001), quoting Commonwealth v. McLeod, 394 Mass. 727, 738 (1985); accord LeClair, 445 Mass. at 741 .

2008See, e.g., Commonwealth v. Berry, supra. Here, however, according to Anthony’s testimony, which we credit for determining whether a manslaughter instruction was warranted, see Commonwealth v. Groome, supra, Anthony armed himself in preparation for a fatal confrontation and, carrying a loaded deadly weapon, went to a location where he knew he would find the victims.

2016The Supreme Judicial Court has stated that “[t]he theory of self-defense does not ‘automatically’ incorporate a theory of reasonable provocation; for example, a provocation instruction is not appropriate when a defendant claims to have acted in self-defense but presents no evidence about his emotional state, or when a *243 defendant argues self-defense but denies experiencing strong feelings of passion, anger, fear, fright, or nervous excitement.” Commonwealth v. Acevedo, 446 Mass. 435, 448 (2006).

2010On the issue of trial counsel’s decision not to request a provocation instruction, in Acevedo the defendant’s motion for a new trial also “included an affidavit from trial counsel, who stated that he could not recall, or think of, any tactical reason not to request an instruction on provocation in this case.” Commonwealth v. Acevedo, supra at 440 .

2008Commonwealth v. Simpson, 434 Mass. 570, 589-90 (2001); cf. Randolph, 438 Mass. at 299 (“A burden-shifting error in a provocation instruction is prejudicial if the defendant was entitled to such a charge . . .”).

2008Accordingly, the erroneous instructions did not create a substantial risk of a miscarriage of justice for either McAfee or Elliot, see Randolph, 438 Mass. at 298 (stating that only where error prejudices defendant can it create a substantial risk of a miscarriage of justice), and neither McAfee’s trial nor appellate counsel rendered constitutionally ineffective assistance, see id. at 296 .

2008“A provocation instruction need not be given unless there is evidence, viewed in the light most favorable to the defendant, that is ‘sufficient to create a reasonable doubt in the minds of a rational jury that a defendant’s actions were both objectively and subjectively reasonable.’ ” Commonwealth v. Zagrodny, 443 Mass. 93, 106 (2004), quoting Commonwealth v. Groome, 435 Mass. 201, 220 (2001), quoting Commonwealth v. McLeod, 394 Mass. 727, 738 (1985); accord LeClair, 445 Mass. at 741 .

2008“That is, the jury must be able to infer that a reasonable person would have become sufficiently provoked and would not have ‘cooled off by the time of the homicide, and that in fact a defendant was provoked and did not cool off.” McLeod, 394 Mass. at 738 , citing Commonwealth v. Walden, 380 Mass. 724, 728 (1980), and Commonwealth v. Rooney, 365 Mass. 484, 494-95 (1974), and cases cited; Acevedo, 446 Mass. at 443 .

2006See Commonwealth v. Sirois, 437 Mass. 845, 853 (2002).

2006See Commonwealth v. Sirois, supra at 854-855 (no evidence of provocation where defendant’s statement contained no information relating to his emotional state); Commonwealth v. Vinton, 432 Mass. 180, 189 (2000) (instruction on provocation not warranted where defendant acted in self-defense based on “calculus of survival, not any blindness of heat of passion on reasonable provocation”).

2002It follows from this that the error in the provocation instruction could not have given rise to a miscarriage of justice: Brian Golden’s response to a violent, armed assault on his wife in their dwelling cannot constitute provocation sufficient to mitigate a killing by the intruders. 14 See id. at 279 .

2001See Commonwealth v. Roderick, 429 Mass. 271, 278 (1999) (“if a provocation instruction had been required ... the confusion that the instruction likely created in the minds of the jurors would have required reversal”). 4 b.

2016See Commonwealth v. Glover, 459 Mass. 836, 841-842 (2011) (“Voluntary manslaughter on a theory of reasonable provocation is closely related to voluntary manslaughter on a theory of excessive use of force in self-defense. . . .

2011Considering the risks inherent in calling Chao to testify and the minimal value of that testimony, we cannot conclude that the decision not to call Chao was manifestly unreasonable and we find no error “likely to have influenced the jury’s conclusion.” Commonwealth v. Williams, supra at 205 , quoting Commonwealth v. Wright, 411 Mass. 678, 682 (1992). (d) Failure to request a provocation instruction.

2009As this court stated in Commonwealth v. Clemente, 452 Mass. 295, 321 (2008), “[i]n . . . cases in which a provocation instruction has been warranted, the combat was unplanned and the defendant was often the one subject to the first physical attacks that escalated into mutual violence.” We held there that no manslaughter instruction was warranted in light of the fact that the defendant “armed himself in preparation for a fatal confrontation and, carrying a loaded weapon, went to a location where he knew he would find the victims.” Id.

2009As this court stated in Commonwealth v. Clemente, 452 Mass. 295, 321 (2008), “[i]n . . . cases in which a provocation instruction has been warranted, the combat was unplanned and the defendant was often the one subject to the first physical attacks that escalated into mutual violence.” We held there that no manslaughter instruction was warranted in light of the fact that the defendant “armed himself in preparation for a fatal confrontation and, carrying a loaded weapon, went to a location where he knew he would find the victims.” Id.

2008See McAfee, 430 Mass. at 495-96 (“Even if we assume that the evidence, when viewed in the light most favorable to the defendant, was sufficient to raise . . . provocation as [an issue] . . .” (emphasis added); Elliot, 430 Mass. at 501 .) Although the error involved here “may raise a constitutional question,” Acevedo, 427 Mass. at 717 , “(t]he rule of waiver applies equally to constitutional claims which could have been raised, but were not raised on direct appeal,” Commonwealth v. Watson, 409 Mass. 110, 112 (1991) (quotation omitted); accord Commonwealth v. Fredette, 56 Mass.App.Ct. 253 , 259

2008As the trial judge followed each of his incorrect instructions with a correct instruction (tr. vol. v. at 145-46, 172), the Supreme Judicial Court may have been speaking to the propriety “of the charge as a whole,” Commonwealth v. Lynch, 439 Mass. 532, 543 (2003), an issue that this Court need not reach in light of its threshold conclusion that the evidence did not warrant a provocation instruction.

2008“A provocation instruction need not be given unless there is evidence, viewed in the light most favorable to the defendant, that is ‘sufficient to create a reasonable doubt in the minds of a rational jury that a defendant’s actions were both objectively and subjectively reasonable.’ ” Commonwealth v. Zagrodny, 443 Mass. 93, 106 (2004), quoting Commonwealth v. Groome, 435 Mass. 201, 220 (2001), quoting Commonwealth v. McLeod, 394 Mass. 727, 738 (1985); accord LeClair, 445 Mass. at 741 .

2008“A provocation instruction need not be given unless there is evidence, viewed in the light most favorable to the defendant, that is ‘sufficient to create a reasonable doubt in the minds of a rational jury that a defendant’s actions were both objectively and subjectively reasonable.’ ” Commonwealth v. Zagrodny, 443 Mass. 93, 106 (2004), quoting Commonwealth v. Groome, 435 Mass. 201, 220 (2001), quoting Commonwealth v. McLeod, 394 Mass. 727, 738 (1985); accord LeClair, 445 Mass. at 741 .

2008E.g., Zagrodny, 443 Mass. at 105 -06 & n. 16.

2008Commonwealth v. Simpson, 434 Mass. 570, 589-90 (2001); cf. Randolph, 438 Mass. at 299 (“A burden-shifting error in a provocation instruction is prejudicial if the defendant was entitled to such a charge . . .”).

2008See McAfee, 430 Mass. at 495-96 (“Even if we assume that the evidence, when viewed in the light most favorable to the defendant, was sufficient to raise . . . provocation as [an issue] . . .” (emphasis added); Elliot, 430 Mass. at 501 .) Although the error involved here “may raise a constitutional question,” Acevedo, 427 Mass. at 717 , “(t]he rule of waiver applies equally to constitutional claims which could have been raised, but were not raised on direct appeal,” Commonwealth v. Watson, 409 Mass. 110, 112 (1991) (quotation omitted); accord Commonwealth v. Fredette, 56 Mass.App.Ct. 253 , 259

2008Commonwealth v. Pasteur, 66 Mass. App. Ct. 812, 819 (2006).

2008See McAfee, 430 Mass. at 495-96 (“Even if we assume that the evidence, when viewed in the light most favorable to the defendant, was sufficient to raise . . . provocation as [an issue] . . .” (emphasis added); Elliot, 430 Mass. at 501 .) Although the error involved here “may raise a constitutional question,” Acevedo, 427 Mass. at 717 , “(t]he rule of waiver applies equally to constitutional claims which could have been raised, but were not raised on direct appeal,” Commonwealth v. Watson, 409 Mass. 110, 112 (1991) (quotation omitted); accord Commonwealth v. Fredette, 56 Mass.App.Ct. 253 , 259

2008See McAfee, 430 Mass. at 495-96 (“Even if we assume that the evidence, when viewed in the light most favorable to the defendant, was sufficient to raise . . . provocation as [an issue] . . .” (emphasis added); Elliot, 430 Mass. at 501 .) Although the error involved here “may raise a constitutional question,” Acevedo, 427 Mass. at 717 , “(t]he rule of waiver applies equally to constitutional claims which could have been raised, but were not raised on direct appeal,” Commonwealth v. Watson, 409 Mass. 110, 112 (1991) (quotation omitted); accord Commonwealth v. Fredette, 56 Mass.App.Ct. 253 , 259

2008“That is, the jury must be able to infer that a reasonable person would have become sufficiently provoked and would not have ‘cooled off by the time of the homicide, and that in fact a defendant was provoked and did not cool off.” McLeod, 394 Mass. at 738 , citing Commonwealth v. Walden, 380 Mass. 724, 728 (1980), and Commonwealth v. Rooney, 365 Mass. 484, 494-95 (1974), and cases cited; Acevedo, 446 Mass. at 443 .

2006Commonwealth v. Adams, 374 Mass. 722, 728 (1978).

2006See Commonwealth v. Sirois, supra at 854-855 (no evidence of provocation where defendant’s statement contained no information relating to his emotional state); Commonwealth v. Vinton, 432 Mass. 180, 189 (2000) (instruction on provocation not warranted where defendant acted in self-defense based on “calculus of survival, not any blindness of heat of passion on reasonable provocation”).

2006A substantial risk of a miscarriage exists “if we have a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. LeFave, 430 Mass. 169, 174 (1999), citing Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

2006A substantial risk of a miscarriage exists “if we have a serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. LeFave, 430 Mass. 169, 174 (1999), citing Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).