Commonwealth vs. John J. Hinds, June 10, 2010
457 Mass. 83
Voluntary Manslaughter Jury Instructions, Homicide, Voir Dire
The defendant appealed from his convictions of premeditated murder in the first degree, murder in the second degree, and armed assault with intent to murder. The defendant argued that the judged erred by refusing to instruct the jury on voluntary manslaughter with respect to the two murder charges. The SJC concluded that the evidence did not permit the jury to find the defendant guilty of voluntary manslaughter with respect to the killings, and the judge did not err in refusing to give such instruction. The SJC further stated that after a review of the record there was no basis to exercise their powers under G. L. c.278 § 33E to reduce the convictions to a lesser degree of guilt or to order a new trial, and thus the convictions were affirmed.
Facts
The defendant was living with his 87 year old mother in Cambridge until he asked his sister to take the mother in at her house while he underwent a heart bypass surgery. During this time the sister, the defendant’s half-brother, and the defendant’s sister-in-law broke into the mother’s house to get some of her things, and at some point while the mother was living with the defendant’s sister, the half-brother informed the defendant that they would be selling the mother’s house because she wasn’t able to use it. The defendant then got a temporary protective order against his brother, and while the brother could not go to the mother’s house the defendant and a friend brought his mother from the sister’s house, back to their mother’s residence. On review after two weeks, the judge declared that protective orders are only to be used if the applicant is in fear of imminent physical harm, not to prevent a future real-estate sale and ended the protective order.
After the hearing the three victims went to the mother’s house and were waiting for the police to arrive to assist them in bringing their mother back to the sister’s house. The defendant went to his car to get some cigarettes and while there noticed his gun in the trunk of his car. The defendant grabbed the gun and went back into the house. During an altercation with his sister, in front of their mother the defendant grabbed the gun and shot his sister in the head, and when she tried to move he told her not to get up or he would shoot her again. The defendant then went outside and shot his half-brother and sister-in-law in the head, killing both of them. The defendant allegedly then told a witness that, “They’d probably fry his ass for this,” went back inside and told his sister, “I wish I could have killed you.”
Instruction of Voluntary Manslaughter
In assessing whether the judge erred in refusing the defendant’s request for an instruction to the jury about voluntary manslaughter based both on reasonable provocation and excessive force in self-defense the SJC first stated that they would view the evidence in the light most favorable to the defendant. Next the SJC cited Commonwealth vs. Acevedo, 446 Mass. 435, 442-443 (2006), for their definition of the mitigating circumstance of reasonable provocation. Reasonable provocation is provocation that 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 if sufficient provocation be found the killings must have followed the provocation before sufficient time had elapsed for the accused’s temper to cool.
The SJC noted that while the argument and the sister’s conduct might have warranted an instruction on reasonable provocation, it could only have been towards the charge of armed assault with intent to murder, and not for the murder charges because it must be the victim who creates the reasonable provocation, and nothing in the facts gave any reason to think that the murder victims did anything to provoke the defendant. Even though there was testimony about the half-brother’s prior threats against the defendant’s life, the last time an alleged threat occurred was roughly two weeks prior to the incident and a reasonable person would have “cooled off”. Because there was no evidence of provocation on the part of the deceased victims the defendant was not entitled to a jury instruction about voluntary manslaughter regarding reasonable provocation.
In assessing the excessive force in self defense claim the SJC noted that for this instruction to be warranted there must first be evidence that at a minimum the defendant was entitled to use some force in self-defense. There was no evidence that the deceased victim’s did anything to make the defendant think he was being attacked or about to be attacked and in fact the only evidence from the trial was that the defendant exited the house with his gun in his hand and the victim’s were standing outside. Furthermore the SJC concluded that there was no evidence the defendant attempted to retreat or to avoid physical force before he shot the victims. Because the defendant was not entitled to any degree of self-defense he did not deserve a voluntary manslaughter instruction regarding excessive use of force in self-defense.
Review under G.L. c. 278 §33E
The SJC noted that at times the judge asked the defense counsel whether they had any peremptory challenges to jurors before asking the Commonwealth, and as a result six of the fourteen peremptory challenges by the defendant were used before the Commonwealth was asked if it was content. The defendant did not object to this procedure at trial. The court noted that there is nothing in the United States Constitution or the Massachusetts Declaration of Rights that says anything about the right to peremptory challenges or the order in which they should occur. The SJC discerned no error in the record that would have lead to a substantial likelihood of a miscarriage of justice and affirmed the defendant’s convictions and did not reduce his sentence.
- Prepared by AEK
457 Mass. 83
Voluntary Manslaughter Jury Instructions, Homicide, Voir Dire
The defendant appealed from his convictions of premeditated murder in the first degree, murder in the second degree, and armed assault with intent to murder. The defendant argued that the judged erred by refusing to instruct the jury on voluntary manslaughter with respect to the two murder charges. The SJC concluded that the evidence did not permit the jury to find the defendant guilty of voluntary manslaughter with respect to the killings, and the judge did not err in refusing to give such instruction. The SJC further stated that after a review of the record there was no basis to exercise their powers under G. L. c.278 § 33E to reduce the convictions to a lesser degree of guilt or to order a new trial, and thus the convictions were affirmed.
Facts
The defendant was living with his 87 year old mother in Cambridge until he asked his sister to take the mother in at her house while he underwent a heart bypass surgery. During this time the sister, the defendant’s half-brother, and the defendant’s sister-in-law broke into the mother’s house to get some of her things, and at some point while the mother was living with the defendant’s sister, the half-brother informed the defendant that they would be selling the mother’s house because she wasn’t able to use it. The defendant then got a temporary protective order against his brother, and while the brother could not go to the mother’s house the defendant and a friend brought his mother from the sister’s house, back to their mother’s residence. On review after two weeks, the judge declared that protective orders are only to be used if the applicant is in fear of imminent physical harm, not to prevent a future real-estate sale and ended the protective order.
After the hearing the three victims went to the mother’s house and were waiting for the police to arrive to assist them in bringing their mother back to the sister’s house. The defendant went to his car to get some cigarettes and while there noticed his gun in the trunk of his car. The defendant grabbed the gun and went back into the house. During an altercation with his sister, in front of their mother the defendant grabbed the gun and shot his sister in the head, and when she tried to move he told her not to get up or he would shoot her again. The defendant then went outside and shot his half-brother and sister-in-law in the head, killing both of them. The defendant allegedly then told a witness that, “They’d probably fry his ass for this,” went back inside and told his sister, “I wish I could have killed you.”
Instruction of Voluntary Manslaughter
In assessing whether the judge erred in refusing the defendant’s request for an instruction to the jury about voluntary manslaughter based both on reasonable provocation and excessive force in self-defense the SJC first stated that they would view the evidence in the light most favorable to the defendant. Next the SJC cited Commonwealth vs. Acevedo, 446 Mass. 435, 442-443 (2006), for their definition of the mitigating circumstance of reasonable provocation. Reasonable provocation is provocation that 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 if sufficient provocation be found the killings must have followed the provocation before sufficient time had elapsed for the accused’s temper to cool.
The SJC noted that while the argument and the sister’s conduct might have warranted an instruction on reasonable provocation, it could only have been towards the charge of armed assault with intent to murder, and not for the murder charges because it must be the victim who creates the reasonable provocation, and nothing in the facts gave any reason to think that the murder victims did anything to provoke the defendant. Even though there was testimony about the half-brother’s prior threats against the defendant’s life, the last time an alleged threat occurred was roughly two weeks prior to the incident and a reasonable person would have “cooled off”. Because there was no evidence of provocation on the part of the deceased victims the defendant was not entitled to a jury instruction about voluntary manslaughter regarding reasonable provocation.
In assessing the excessive force in self defense claim the SJC noted that for this instruction to be warranted there must first be evidence that at a minimum the defendant was entitled to use some force in self-defense. There was no evidence that the deceased victim’s did anything to make the defendant think he was being attacked or about to be attacked and in fact the only evidence from the trial was that the defendant exited the house with his gun in his hand and the victim’s were standing outside. Furthermore the SJC concluded that there was no evidence the defendant attempted to retreat or to avoid physical force before he shot the victims. Because the defendant was not entitled to any degree of self-defense he did not deserve a voluntary manslaughter instruction regarding excessive use of force in self-defense.
Review under G.L. c. 278 §33E
The SJC noted that at times the judge asked the defense counsel whether they had any peremptory challenges to jurors before asking the Commonwealth, and as a result six of the fourteen peremptory challenges by the defendant were used before the Commonwealth was asked if it was content. The defendant did not object to this procedure at trial. The court noted that there is nothing in the United States Constitution or the Massachusetts Declaration of Rights that says anything about the right to peremptory challenges or the order in which they should occur. The SJC discerned no error in the record that would have lead to a substantial likelihood of a miscarriage of justice and affirmed the defendant’s convictions and did not reduce his sentence.
- Prepared by AEK
