voluntary manslaughter instruction in Massachusetts

2019"For sudden combat to be the basis for a voluntary manslaughter instruction, '[t]here must be evidence that would warrant a reasonable doubt that something happened 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. Curtis , 417 Mass. 619 , 629 (1994), quoting Commonwealth v. Walden , 380 Mass. 724 , 728 (1980).

2017A voluntary manslaughter instruction on the theory of provocation 9 requires evidence raising a reasonable doubt “that something happened which would have been likely to produce in an *757 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. Walden, 380 Mass. 724, 728 (1980).

2011In support of his argument that a voluntary manslaughter instruction based on provocation was required, the defendant relies on the evidence that he discovered the victim “engaging in oral sex with another man.” See Commonwealth v. Anderson, 408 Mass. 803, 804-805 (1990); Commonwealth v. Schnopps, 383 Mass. 178, 180-181 (1981), S.C., 390 Mass. 722 (1984). “[Provocation occurs only when an action of the victim triggers a sudden loss of self-control in the defendant. . . . [T]he killing must occur before there is sufficient time for the defendant to cool off.” (Emphasis in original.

2008A voluntary manslaughter instruction based on reasonable provocation is warranted if “there is evidence of 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. Andrade, 422 Mass. 236, 237 (1996), quoting Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).

2019See Commonwealth v. Rodriquez , 461 Mass. 100 , 108, 958 N.E.2d 518 (2011), quoting Commonwealth v. Espada , 450 Mass. 687 , 696-697, 880 N.E.2d 795 (2008) ("Generally, for sudden combat to be the basis of a voluntary manslaughter instruction, the 'victim **412 ... must attack the defendant or at least strike a blow against the defendant' ").

2019See Commonwealth v. Rodriquez , 461 Mass. 100 , 108, 958 N.E.2d 518 (2011), quoting Commonwealth v. Espada , 450 Mass. 687 , 696-697, 880 N.E.2d 795 (2008) ("Generally, for sudden combat to be the basis of a voluntary manslaughter instruction, the 'victim **412 ... must attack the defendant or at least strike a blow against the defendant' ").

2018In Commonwealth v. Espada, 450 Mass. 687, 697 (2008), quoting Commonwealth v. Pasteur, 66 Mass. App. Ct. 812, 822 (2006), we clarified that, "for sudden combat to be the basis of a voluntary manslaughter instruction the 'victim . . . must attack the defendant or at least strike a blow against the defendant.'" See Commonwealth v. Gonzalez, 465 Mass. 672 , 685- 686 (2013) (no evidence of sudden combat where defendant was unable to demonstrate overt act by victim amounting to attack or exchange of blows); Rodriquez, 461 Mass. at 107 (no sudden combat where victim walked "hastily" toward defendant

2017In Commonwealth v. Espada , 450 Mass. 687 , 697, 880 N.E.2d 795 (2008), quoting Commonwealth v. Pasteur , 66 Mass.App.Ct. 812 , 822, 850 N.E.2d 1118 (2006), we clarified that, "for sudden combat to be the basis of a voluntary manslaughter instruction the 'victim ... must attack the defendant or at least strike a blow against the defendant.' " See Commonwealth v. Gonzalez , 465 Mass. 672 , 685-686, 991 N.E.2d 1036 (2013) (no evidence of sudden combat where defendant was unable to demonstrate overt act by victim amounting to attack or exchange of blows); Rodriquez , 461 Mass. at 107 , 958 N.E.2d

2016“A voluntary manslaughter instruction based on provocation is appropriate ‘if there is evidence of 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. Colon, 449 Mass. 207, 220 , cert. denied, 552 U.S. 1079 (2007), quoting Commonwealth v. Andrade, 422 Mass. 236, 237 (1996).

2008A voluntary manslaughter instruction based on reasonable provocation is warranted if “there is evidence of 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. Andrade, 422 Mass. 236, 237 (1996), quoting Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984).

2011We conclude that no substantial likelihood of a miscarriage occurred because the evidence, viewed in the light most favorable to the defendant, see Commonwealth v. Groome, 435 Mass. 201, 220 (2001), did not warrant a voluntary manslaughter instruction based on heat of passion induced by sudden combat.

2003“In assessing whether a voluntary manslaughter instruction was warranted, we must consider the evidence in the light most favorable to the defendant.” Commonwealth v. Groome, supra at 220 .

2019"For sudden combat to be the basis for a voluntary manslaughter instruction, '[t]here must be evidence that would warrant a reasonable doubt that something happened 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. Curtis , 417 Mass. 619 , 629 (1994), quoting Commonwealth v. Walden , 380 Mass. 724 , 728 (1980).

2000Because “there was no right to self-defense, a voluntary manslaughter instruction based on the use of excessive force in self-defense [was not] appropriate either.” Commonwealth v. Curtis, supra at 632 n.11.

2018In Commonwealth v. Espada, 450 Mass. 687, 697 (2008), quoting Commonwealth v. Pasteur, 66 Mass. App. Ct. 812, 822 (2006), we clarified that, "for sudden combat to be the basis of a voluntary manslaughter instruction the 'victim . . . must attack the defendant or at least strike a blow against the defendant.'" See Commonwealth v. Gonzalez, 465 Mass. 672 , 685- 686 (2013) (no evidence of sudden combat where defendant was unable to demonstrate overt act by victim amounting to attack or exchange of blows); Rodriquez, 461 Mass. at 107 (no sudden combat where victim walked "hastily" toward defendant

2017In Commonwealth v. Espada , 450 Mass. 687 , 697, 880 N.E.2d 795 (2008), quoting Commonwealth v. Pasteur , 66 Mass.App.Ct. 812 , 822, 850 N.E.2d 1118 (2006), we clarified that, "for sudden combat to be the basis of a voluntary manslaughter instruction the 'victim ... must attack the defendant or at least strike a blow against the defendant.' " See Commonwealth v. Gonzalez , 465 Mass. 672 , 685-686, 991 N.E.2d 1036 (2013) (no evidence of sudden combat where defendant was unable to demonstrate overt act by victim amounting to attack or exchange of blows); Rodriquez , 461 Mass. at 107 , 958 N.E.2d

2019Physical contact initiated by the victim is not always sufficient to warrant a voluntary manslaughter instruction, see Felix , supra at 757, 72 N.E.3d 1038 , but "even a single blow from the victim can constitute reasonable provocation." Commonwealth v. Acevedo , 446 Mass. 435 , 444, 845 N.E.2d 274 (2006).

2019Physical contact initiated by the victim is not always sufficient to warrant a voluntary manslaughter instruction, see Felix , supra at 757, 72 N.E.3d 1038 , but "even a single blow from the victim can constitute reasonable provocation." Commonwealth v. Acevedo , 446 Mass. 435 , 444, 845 N.E.2d 274 (2006).

2019See Commonwealth v. Rodriquez , 461 Mass. 100 , 108, 958 N.E.2d 518 (2011), quoting Commonwealth v. Espada , 450 Mass. 687 , 696-697, 880 N.E.2d 795 (2008) ("Generally, for sudden combat to be the basis of a voluntary manslaughter instruction, the 'victim **412 ... must attack the defendant or at least strike a blow against the defendant' ").

2019See Commonwealth v. Rodriquez , 461 Mass. 100 , 108, 958 N.E.2d 518 (2011), quoting Commonwealth v. Espada , 450 Mass. 687 , 696-697, 880 N.E.2d 795 (2008) ("Generally, for sudden combat to be the basis of a voluntary manslaughter instruction, the 'victim **412 ... must attack the defendant or at least strike a blow against the defendant' ").

2000“A voluntary manslaughter instruction must be given ‘if, on “any view of the evidence,” regardless of the credibility, manslaughter may be found.’ Commonwealth v. Carrion, 407 Mass. 263, 266 (1990), quoting Commonwealth v. Pitts, 403 Mass. 665, 667 (1989), and cases cited.

1999A voluntary manslaughter instruction must be given “if, on ‘any view of the evidence,’ regardless of the credibility, manslaughter may be found.” Commonwealth v. Carrion, 407 Mass. 263, 266 (1990), quoting Commonwealth v. Pitts, 403 Mass. 665, 667 (1989), and cases cited.

2006“A killing may be rendered a voluntary manslaughter if it is the result of ‘a sudden transport of passion or heat of blood, upon a reasonable provocation and without malice, or upon sudden combat.’ [Commonwealth v. Berry, 431 Mass. 326, 334 (2000)], quoting Commonwealth v. Walden, 380 Mass. 724, 727 (1980).

2003“If any view of the evidence . . . would permit a verdict of manslaughter rather than murder, a manslaughter charge must be given.” Commonwealth v. Rodriguez, 431 Mass. 804, 812 (2000), quoting Commonwealth v. Berry, 431 Mass. 326, 334 (2000).

2003See Commonwealth v. Groome, supra at 220 ; Commonwealth v. Vanderpool, 367 Mass. 743, 745-746 (1975).

1999Contrast Commonwealth v. Vanderpool, 367 Mass. 743, 746-747 (1975) (victim and defendant had been in a drunken fistfight; they swung at each other, but no blows landed; judge’s refusal to give a voluntary manslaughter instruction was not erroneous); Commonwealth v. Curtis , 417 Mass, at 628-629 (victim attempted to hit defendant, who landed the first blow, with a bottle of liquor; omission of a voluntary manslaughter instruction was not erroneous).

2000“Where the defendant harbored these suspicions for a significant time prior to [allegedly learning of the victim’s infidelity], he cannot successfully claim that [confirmation of this infidelity] constituted a ‘sudden discovery.’ Commonwealth v. Brown, [ 387 Mass. 220 ,] 228 [(1982)].” Commonwealth v. LeClair, supra. There was no error in the denial of the request for a voluntary manslaughter instruction. 4.

1998Even if we “treatfl the defendant’s story, regardless of its credibility, as if it were entirely true,” Commonwealth v. Brown, 387 Mass. 220, 227 (1982), his story does not recount provocation adequate in law to warrant a voluntary manslaughter instruction.

2019Cf. Commonwealth v. Zagrodny , 443 Mass. 93 , 106, 819 N.E.2d 565 (2004) ("victim's 'leaving' her husband and 'taking' their children is not evidence of provocation sufficient to warrant a voluntary manslaughter instruction"). 6 The term "juvenile" refers in this opinion to someone under the age of eighteen at the time of his or her crimes. 7 The investigator with the Committee for Public Counsel Services testified that the court officer told him he needed to wait outside the court room because there were no seats available.

2019Cf. Commonwealth v. Zagrodny , 443 Mass. 93 , 106, 819 N.E.2d 565 (2004) ("victim's 'leaving' her husband and 'taking' their children is not evidence of provocation sufficient to warrant a voluntary manslaughter instruction"). 6 The term "juvenile" refers in this opinion to someone under the age of eighteen at the time of his or her crimes. 7 The investigator with the Committee for Public Counsel Services testified that the court officer told him he needed to wait outside the court room because there were no seats available.

2015See generally Commonwealth v. Nelson, 468 Mass. 1, 14 (2014); Commonwealth v. LeClair, 445 Mass. 734, 740 (2006) (reaffirming “well-established rule that evidence of provocation by a third *603 party, rather than the victim of a homicide, is insufficient to warrant a voluntary manslaughter instruction”).

2008The “law on the evidence permitting a voluntary manslaughter instruction is well settled.” Commonwealth v. LeClair, 445 Mass. 734, 740 (2006), quoting Commonwealth v. Keohane, 444 Mass. 563 , 569 n.5 (2005).

2010Commonwealth v. Ruiz, 442 Mass. 826, 838-839 (2004).

2008“It is well established that ‘provocation must come from the victim.’ ” Acevedo, 446 Mass. at 444 , quoting Commonwealth v. Ruiz, 442 Mass. 826, 838-39 (2004); see generally LeClair, 445 Mass. at 739-41 , and cases cited (reaffirming “well-established rule that evidence of provocation by a third party, rather than the victim of a homicide, is insufficient to warrant a voluntary manslaughter instruction”). 7 Viewed in the light most favorable to the defendants, the evidence of provocation from the victim, Love, did not warrant a voluntary manslaughter instruction based on reasonable provocation

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 .

2005See Commonwealth v. McLeod, supra at 738-739 (although fifteen to thirty minutes “significantly longer cooling off period than is usually the situation in manslaughter cases,” court assumed, without deciding, that manslaughter instruction required where defendant “severely beaten” and lost consciousness at least once); Commonwealth v. Coleman, 366 Mass. 705, 707-708, 715 (1975) (manslaughter in “heat of passion” sense not plausible where defendant had time to calm down in “several” minutes between time victim punched defendant and bloodied his nose and when defendant shot victim). 4 Our cases

2004See Commonwealth v. Rodriguez, 431 Mass. 804, 812 (2000); Commonwealth v. Brown, 387 Mass. 220, 227-228 (1982).

2003“If any view of the evidence . . . would permit a verdict of manslaughter rather than murder, a manslaughter charge must be given.” Commonwealth v. Rodriguez, 431 Mass. 804, 812 (2000), quoting Commonwealth v. Berry, 431 Mass. 326, 334 (2000).

2000“A voluntary manslaughter instruction must be given ‘if, on “any view of the evidence,” regardless of the credibility, manslaughter may be found.’ Commonwealth v. Carrion, 407 Mass. 263, 266 (1990), quoting Commonwealth v. Pitts, 403 Mass. 665, 667 (1989), and cases cited.

1999A voluntary manslaughter instruction must be given “if, on ‘any view of the evidence,’ regardless of the credibility, manslaughter may be found.” Commonwealth v. Carrion, 407 Mass. 263, 266 (1990), quoting Commonwealth v. Pitts, 403 Mass. 665, 667 (1989), and cases cited.

2016“A voluntary manslaughter instruction based on provocation is appropriate ‘if there is evidence of 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. Colon, 449 Mass. 207, 220 , cert. denied, 552 U.S. 1079 (2007), quoting Commonwealth v. Andrade, 422 Mass. 236, 237 (1996).

2007A voluntary manslaughter instruction based on reasonable provocation is appropriate “if there is evidence of 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. Colon, 449 Mass. at 220 , quoting from Commonwealth v. Andrade, 422 Mass. 236, 237 (1996).

2024See Commonwealth v. Mercado, 452 Mass. 662, 666 (2008) (statutory standard under G.

2024"In deciding whether an instruction is warranted regarding these mitigating circumstances, the evidence must be viewed in the light most favorable to the defendant." Miranda, supra, quoting Richards, 5 Based on the record, it does not appear that the defendant specifically objected to the omission of the voluntary manslaughter instruction, but we nonetheless consider the issue preserved where, as here, "defense counsel requests a specific instruction and the judge rejects it, or gives an instruction inconsistent with the requested one." Commonwealth v. Vacher, 469 Mass. 425, 442-443 (2014).

2019See Commonwealth v. Nichypor , 419 Mass. 209 , 216 (1994).

2019See Commonwealth v. Maskell , 403 Mass. 111 , 115, 526 N.E.2d 756 (1988).

2019See Commonwealth v. Maskell , 403 Mass. 111 , 115, 526 N.E.2d 756 (1988).