Commonwealth v. Acevedo
2006 Mass. LEXIS 113, 446 Mass. 435, 845 N.E.2d 274 (2006)
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Rule of Law:
Trial counsel renders ineffective assistance when failing to request a jury instruction on reasonable provocation, if such an instruction is warranted by the evidence and consistent with other defense theories, thereby depriving the defendant of a substantial available defense and creating a substantial risk of a miscarriage of justice.
Facts:
- On November 17, 2000, Crystal Graham hosted a party at her home in Lowell.
- Charles McCullough, Graham’s former boyfriend, attended the party, as did Acevedo and his friends.
- An initial argument broke out between Acevedo's friends and McCullough, who accused them of stealing his headlights, leading Acevedo and his friends to leave.
- Approximately forty-five minutes later, Acevedo and his friends returned to the party, and another argument with McCullough escalated into a physical confrontation when two of Acevedo's friends punched McCullough.
- The fight moved outside, where McCullough challenged Acevedo to fight “one on one,” and they stepped into a circle of people.
- McCullough, who was unarmed, punched Acevedo in the head, and Acevedo appeared to be punching McCullough’s chest for about ten seconds before McCullough fell back, holding his chest, and shouted that Acevedo had stabbed him.
- McCullough had been stabbed five times, with one wound penetrating his heart and another perforating his liver, causing significant blood loss.
- Acevedo later told police that McCullough and his friends attacked him, knocking him to the ground, and fearing for his life because he was outnumbered, he pulled out his knife and swung it three or four times, not intending to kill anyone but trying to protect himself.
Procedural Posture:
- The defendant, Acevedo, was indicted for murder in the first degree.
- At trial, the jury convicted Acevedo of murder in the second degree.
- Acevedo appealed from the conviction and filed a motion for a new trial, arguing the judge failed to instruct the jury on voluntary manslaughter based on reasonable provocation and that defense counsel was ineffective for not requesting such an instruction.
- The trial judge denied Acevedo's motion for a new trial after a nonevidentiary hearing.
- Acevedo’s appeal from the order denying his motion for a new trial was consolidated with his direct appeal.
- The Appeals Court affirmed the order and the conviction in an unpublished memorandum and order.
- Acevedo filed an application for further appellate review with the Supreme Judicial Court of Massachusetts.
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Issue:
Does trial counsel's failure to request a jury instruction on reasonable provocation, when evidence supports it and the theory is consistent with other defenses, constitute ineffective assistance of counsel, warranting a new trial?
Opinions:
Majority - Spina, J.
Yes, trial counsel's failure to request a jury instruction on reasonable provocation, when warranted by the evidence and consistent with other defense theories, constituted ineffective assistance of counsel, thereby creating a substantial risk of a miscarriage of justice. The court found that there was adequate evidence of reasonable provocation to warrant an instruction, given Acevedo's testimony that he was surrounded, knocked to the ground, and repeatedly punched by McCullough and his friends, causing him to fear for his life. This testimony, if credited, could demonstrate fear or nervous excitement sufficient to overcome a reasonable person’s capacity for reflection or restraint, and even a single blow from the victim can constitute reasonable provocation. The court emphasized that a defendant is entitled to an instruction based on his testimony, however incredible, and that provocation need not come exclusively from the victim. Furthermore, the court determined that a provocation instruction would not have been inconsistent with Acevedo's primary self-defense theory or his statement that he did not intend to kill, as provocation negates malice and can coexist with self-defense. The court concluded that trial counsel's failure to request the instruction was 'manifestly unreasonable,' especially after the jury's second question indicated their willingness to consider other mitigating factors beyond excessive force in self-defense. This failure deprived Acevedo of a substantial available defense and created a serious doubt about the trial's outcome.
Analysis:
This case clarifies that the defense of reasonable provocation is not mutually exclusive with self-defense and excessive force in self-defense, and counsel's failure to request such an instruction when warranted can constitute ineffective assistance. It emphasizes that judges must consider all defense theories supported by the evidence, even if seemingly inconsistent or based on the defendant's 'incredible' testimony. The decision underscores the critical role of jury instructions in ensuring a fair trial and the importance of counsel's adaptability, especially when jury questions signal a willingness to consider lesser offenses.
