Commonwealth v. Howard

91 N.E.3d 1108, 479 Mass. 52
CourtMassachusetts Supreme Judicial Court
DecidedDecember 8, 2017
DocketSJC–12199
StatusPublished
Cited by23 cases

This text of 91 N.E.3d 1108 (Commonwealth v. Howard) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Howard, 91 N.E.3d 1108, 479 Mass. 52 (Mass. 2017).

Opinion

GAZIANO, J.

*1111**53On January 28, 2009, a heated argument between the defendant and a coworker, Maurice Ricketts (victim), escalated into a fatal shooting. At trial, there was no dispute that the defendant had shot the victim; the issue before the jury was the defendant's state of mind and whether the shooting had been in response to some form of reasonable provocation.

A Superior Court jury convicted the defendant of murder in the first degree on the theory of deliberate premeditation.1 In this direct appeal from his conviction, the defendant challenges the judge's decision not to instruct the jury on the lesser included offense of voluntary manslaughter based on sudden combat; the adequacy of the instructions on reasonable provocation and lesser included offenses; the dismissal of an empanelled juror shortly before deliberations began; and the judge's decision to allow the introduction of prior bad act evidence.2 The defendant also asks this court to exercise its extraordinary authority under G. L. c. 278, § 33E, and reduce the verdict to murder in the second degree or manslaughter. For the reasons that follow, we affirm the defendant's conviction and, after a thorough review of the entire trial record, decline to allow relief under G. L. c. 278, § 33E.

1. Facts. We recite the facts the jury could have found, reserving other facts for our discussion of specific issues. In January, 2009, the defendant and the victim were coworkers at a pool supply distributor. The defendant, a janitor and handyman, had been employed there for over eleven years. In 2007, the distributor hired the victim to work as an "order puller"; this position involved working in the warehouse, assembling products to fill customer orders.

Over the course of the victim's employment, the defendant, who was sixty-five years old, and the victim, who was thirty-three, had been involved in a number of workplace altercations.3 Approximately three months before the shooting, the defendant **54and the victim engaged in an altercation over the use of a forklift. The victim had been using a forklift inside the warehouse, and stopped using it momentarily. Seeing no one on the forklift, the defendant took it to use for one of his own tasks. The victim returned to the warehouse, saw the defendant operating the forklift, became enraged, and physically forced the defendant off the forklift. The defendant described it as the victim removing him from the forklift by grabbing him around the neck. Later that day, the defendant intentionally backed into the victim's automobile while it was parked in the employees' lot. As a result of these two incidents, *1112a manager called both the defendant and the victim to his office and informed them that if there were any further incidents, they would be discharged.

On January 28, 2009, the defendant reported to work at 9 A.M. , and began his ordinary routine. A few minutes after 10 A.M. , the defendant walked through the warehouse carrying a trash bag, headed toward a Dumpster located in a fenced-in yard. A coworker, Michael Najarian, Jr., saw the defendant walking past and engaged in a brief, casual conversation with him. Najarian later saw the defendant return to the warehouse from the yard. As he was heading to the front pedestrian entrance of the building, the defendant walked past the victim, who was assembling an order near the front door. The defendant stopped and turned around. Najarian heard a "rather loud explosion of yelling." Najarian looked up and saw the defendant and the victim standing face to face, no more than three or four feet apart, screaming at each other. Najarian was unable to understand what they were saying, but headed towards them to break up the argument, so that neither would get in trouble with management.4

As Najarian approached from behind the victim, he saw the **55victim "reaching toward his right side, almost towards his belt." The victim then suddenly turned around and ran away from the defendant toward the back door of the warehouse and through the door to the back yard. With the victim no longer obstructing his view, Najarian was able to see that the defendant's "arm [was] raised with a gun [in] his hand at roughly a [forty-five]-degree angle, pointing towards the ground." The defendant fired a shot in the direction of the victim, and ran after him through the rear door of the warehouse into the fenced-in yard.

Najarian ran across the street to the office in order to alert other employees and telephone 911. The manager and the assistant manager immediately went to the warehouse building. As they approached the building, they heard two gunshots coming from the rear, and ran along the outside of the building toward the fenced-in yard. Peering through a gap in the fence, they saw the defendant standing next to a Dumpster with his arm extended, holding something in his hand. He fired two shots at a downward angle; both the manager and the assistant manager heard groaning sounds coming from behind the Dumpster. After the second shot, the manager heard the muffled voice of the defendant saying "something to the extent, like, 'I got you' or 'I finally got you.' " As the manager, who was unable to see the victim, was yelling to the defendant asking what he was doing, the defendant headed back toward the warehouse door, paused, turned around, walked back to the Dumpster, raised his arm, and fired another shot.

*1113The manager and the assistant manager ran around the building to the front door of the warehouse. They arrived just as the defendant was leaving. The defendant pushed past them, saying, "I gotta get out of here. The guy, the freaking guy, came at me with a hammer." The defendant ran toward his white van and drove off at a high rate of speed.

A Cambridge police officer and emergency medical technicians found the victim wedged between the Dumpster and a stack of pallets. He had two gunshot wounds to the head, and died upon arrival at a hospital. One of the gunshots entered the left side of the victim's face without damaging his brain and was considered nonfatal. The gunshot that produced the second, fatal wound was fired from close range (within eighteen inches) into the back of the victim's head.

Later that day, at 4 P.M. , a Boston police officer, alerted by a "be on the lookout" broadcast, spotted the defendant's white van parked near an intersection in a Boston neighborhood. The defendant **56was asleep in the driver's seat with a cellular telephone pressed to his ear. The officer removed the defendant, who was intoxicated, from the van. When asked if he was carrying a weapon, the defendant replied, "No, I threw it in the Charles River." At a Boston police station, the defendant made a series of unsolicited statements about the shooting, including the comment, "I'm not a bad guy. The guy was always fucking with me, you know, treating me like a woman, slapping me, you know.

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Bluebook (online)
91 N.E.3d 1108, 479 Mass. 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-howard-mass-2017.