Acevedo error in Massachusetts

2024"The correct rule is that, where the evidence raises the possibility that the defendant may have acted on reasonable provocation, the Commonwealth must prove, and the jury must find, beyond a reasonable doubt that the defendant did not act on reasonable provocation." McDermott, supra, quoting Acevedo, supra. The Appeals Court went on to decide whether the Acevedo error created a substantial risk of a miscarriage of justice requiring a new trial.

2024"The correct rule is that, where the evidence raises the possibility that the defendant may have acted on reasonable provocation, the Commonwealth must prove, and the jury must find, beyond a reasonable doubt that the defendant did not act on reasonable provocation." McDermott, supra, quoting Acevedo, supra. The Appeals Court went on to decide whether the Acevedo error created a substantial risk of a miscarriage of justice requiring a new trial.

2003Thus, in Commonwealth v. Little, 431 Mass. 782, 787 (2000), “the instructions on provocation considerations involved in voluntary manslaughter contained infirmities, along with some correct instructions, and the infirmities were compounded as the jury deliberated the case.” There, following the traditional misstatement, the judge repeated the error in response to a jury question; subsequent thereto, he provided the jury with a written copy of his instructions on voluntary manslaughter, thereby memorializing the error even more firmly.

2003Thus, in Commonwealth v. Little, 431 Mass. 782, 787 (2000), “the instructions on provocation considerations involved in voluntary manslaughter contained infirmities, along with some correct instructions, and the infirmities were compounded as the jury deliberated the case.” There, following the traditional misstatement, the judge repeated the error in response to a jury question; subsequent thereto, he provided the jury with a written copy of his instructions on voluntary manslaughter, thereby memorializing the error even more firmly.

2003See Commonwealth v. Lapage, supra. The judge then moved on to a discussion of the Commonwealth’s burden of proof and the concept of reasonable doubt. 4 Subsequently, having traversed the rapids of the murder instructions without mishap, the judge launched into the subject of manslaughter, correctly advising the jury that certain “mitigating circumstances operate to negate the element of malice.” Then the Acevedo error made its appearance. 5 Following traditional practice, the judge then correctly instructed that “[wjhere there is evidence of provocation, the Commonwealth must prove and the jur

2003See Commonwealth v. Lapage, supra. The judge then moved on to a discussion of the Commonwealth’s burden of proof and the concept of reasonable doubt. 4 Subsequently, having traversed the rapids of the murder instructions without mishap, the judge launched into the subject of manslaughter, correctly advising the jury that certain “mitigating circumstances operate to negate the element of malice.” Then the Acevedo error made its appearance. 5 Following traditional practice, the judge then correctly instructed that “[wjhere there is evidence of provocation, the Commonwealth must prove and the jur

2011The defendant argues that the question is new and substantial because in his direct appeal, decided five months before Acevedo , the court was “not yet prepared to adopt” the Acevedo analysis, and therefore “his argument was never properly considered.” See Mains v. Commonwealth, 433 Mass. 30, 32-34 (2000); Commonwealth v. Smith, 427 Mass. 245, 248-249 (1998).

2011The defendant argues that the question is new and substantial because in his direct appeal, decided five months before Acevedo , the court was “not yet prepared to adopt” the Acevedo analysis, and therefore “his argument was never properly considered.” See Mains v. Commonwealth, 433 Mass. 30, 32-34 (2000); Commonwealth v. Smith, 427 Mass. 245, 248-249 (1998).

2011See Commonwealth v. Simpson, 434 Mass. 570, 589-590 (2001).

2011See Commonwealth v. Simpson, 434 Mass. 570, 589-590 (2001).

2011See Commonwealth v. Randolph, 438 Mass. 290, 296-297 (2002) (after direct appeal in capital case, claims of error are reviewed for substantial risk of miscarriage of justice).

2011See Commonwealth v. Randolph, 438 Mass. 290, 296-297 (2002) (after direct appeal in capital case, claims of error are reviewed for substantial risk of miscarriage of justice).

2011The defendant argues that the question is new and substantial because in his direct appeal, decided five months before Acevedo , the court was “not yet prepared to adopt” the Acevedo analysis, and therefore “his argument was never properly considered.” See Mains v. Commonwealth, 433 Mass. 30, 32-34 (2000); Commonwealth v. Smith, 427 Mass. 245, 248-249 (1998).

2011The defendant argues that the question is new and substantial because in his direct appeal, decided five months before Acevedo , the court was “not yet prepared to adopt” the Acevedo analysis, and therefore “his argument was never properly considered.” See Mains v. Commonwealth, 433 Mass. 30, 32-34 (2000); Commonwealth v. Smith, 427 Mass. 245, 248-249 (1998).

2003In attempting to decide in a given case whether the jury has been misled by the Acevedo error, our courts have looked to the remainder of the instructions in that case for guidance. “ [Constitutionally erroneous jury instructions are not to be viewed in isolation but rather in the context of the charge as a whole, so that a reviewing court can assess the possible impact of the error on the deliberations of a reasonable juror.” Commonwealth v. McLaughlin, 433 Mass. 558, 560 (2001), quoting from Commonwealth v. Repoza, 400 Mass. 516, 519 , cert. denied, 484 U.S. 935 (1987).

2003In attempting to decide in a given case whether the jury has been misled by the Acevedo error, our courts have looked to the remainder of the instructions in that case for guidance. “ [Constitutionally erroneous jury instructions are not to be viewed in isolation but rather in the context of the charge as a whole, so that a reviewing court can assess the possible impact of the error on the deliberations of a reasonable juror.” Commonwealth v. McLaughlin, 433 Mass. 558, 560 (2001), quoting from Commonwealth v. Repoza, 400 Mass. 516, 519 , cert. denied, 484 U.S. 935 (1987).

2003See Commonwealth v. Fickling, 434 Mass. 9, 18-20 (2001) {Fickling).

2003See Commonwealth v. Fickling, 434 Mass. 9, 18-20 (2001) {Fickling).

2003The defendant filed a post-appeal motion for a new trial, asserting that the trial judge had mischaracterized the Commonwealth’s burden of proof on the issue of provocation in contravention of the principles set forth in Commonwealth v. Acevedo, supra at 716 , and Commonwealth v. Boucher, 403 Mass. 659, 661-663 (1989).

2001See Commonwealth v. Ni-emic, 427 Mass. 718, 721-722 (1998) (although judge correctly instructed that Commonwealth bore burden of disproving heat of passion, after making Acevedo error, provocation was not “live” issue in case and judge, apparently, did not instruct jury that all instructions carried equal weight); Commonwealth v. Hung Tan Vo, 427 Mass. 464, 471-472 (1998) (involving error in instructions on deliberate premeditation); Commonwealth v. Torres, 420 Mass. 479 , 488 n.8 (1995) (incorrect instruction on provocation sandwiched between two correct instructions, and judge emphatically a

2001See Commonwealth v. Ni-emic, 427 Mass. 718, 721-722 (1998) (although judge correctly instructed that Commonwealth bore burden of disproving heat of passion, after making Acevedo error, provocation was not “live” issue in case and judge, apparently, did not instruct jury that all instructions carried equal weight); Commonwealth v. Hung Tan Vo, 427 Mass. 464, 471-472 (1998) (involving error in instructions on deliberate premeditation); Commonwealth v. Torres, 420 Mass. 479 , 488 n.8 (1995) (incorrect instruction on provocation sandwiched between two correct instructions, and judge emphatically a

1999See id. 5 Although the judge did not convey that idea clearly, he did preface his explanation of mitigation by provocation by stating that, “[i]f there is evidence of mitigation, you should consider whether the defendant is guilty of the lesser offense of voluntary manslaughter.” We note that the jurors’ only question on the indictment charging murder was concerned with deliberate premeditation. 6 We are substantially confident that, had the Acevedo instruction been given, “the jury verdict would have been the same.” Commonwealth v. Ruddock, supra at 292 n.3. 4.

1999See id. 5 Although the judge did not convey that idea clearly, he did preface his explanation of mitigation by provocation by stating that, “[i]f there is evidence of mitigation, you should consider whether the defendant is guilty of the lesser offense of voluntary manslaughter.” We note that the jurors’ only question on the indictment charging murder was concerned with deliberate premeditation. 6 We are substantially confident that, had the Acevedo instruction been given, “the jury verdict would have been the same.” Commonwealth v. Ruddock, supra at 292 n.3. 4.