Supreme Judicial Court, July 17, 2012

Duress is not a defense to deliberately premeditated murder, murder committed with extreme atrocity or cruelty, and murder in the second degree.  It is possible that, in exceptional and rare circumstances of duress, justice may warrant reduction of a defendant's guilt under G.L. c. 278, § 33E.

This case involves six defendants and the facts are abbreviated to address only the facts relevant to the defendant, Davenport, and his claim that he was entitled to an instruction on duress as a defense to murder.  In 2001, several individuals in the Harvard Square area of Cambridge decided to form a new gang.  On November 3, 2001, Davenport met up with several of the gang members when he agreed they could use his car in exchange for heroin.   Several of the lead gang members devised a plan to “get” the victim in this case.  This plan involved two of the women holding the victim down, while Davenport stabbed her.  Davenport said he did not want to kill the victim, but one of the co-defendants handed him a knife and said “You’re not getting out of here if you don’t.”  The parties carried through with the plan and Davenport repeatedly stabbed the victim.  When told by one of the gang members to leave, he continued stabbing the victim and when she stopped moving he assisted in throwing her body into the Charles River.  He then exclaimed “What a rush!”  

At trial, Davenport objected to the judge’s instruction that "[d]uress ... is not a defense to first degree murder, either under the theory of [deliberate] premeditation or by extreme atrocity or cruelty. Likewise, duress does not ... excuse the intentional murder of an innocent person" and he objected to the judge's refusal to instruct the jury that duress is either a defense to murder or that duress may mitigate murder to manslaughter.  On appeal, he argues that he was entitled to an instruction on duress as a defense to murder.

For the first time the Court considered whether duress can be recognized as a defense to intentional murder.  The Court looked to the definition of duress and the ‘choice of evils’ rationale, which is complicated when the defendant must choice between taking the life of an innocent third party or face the threat of his own life.  The Court reviewed whether the states across the nation permit duress to be used in an intentional murder case under either common law or enacted legislation.  The SJC ultimately held, “we hereby reject duress as a defense to deliberately premeditated murder, murder committed with extreme atrocity or cruelty, and murder in the second degree, we do not foreclose the possibility that, in exceptional and rare circumstances of duress, justice may warrant reduction of a defendant's guilt in our review under G.L. c. 278, § 33E.”

The Court considered whether Davenport should be afforded relief under G.L. c. 278, § 33E.  “There was no evidence that Davenport did not have a reasonable and available opportunity to escape.” See Wright v. State, 402 So. 2d 493, 487-498 n. 6 (Fla. Dist. Ct. App. 1981), and therefore the Court refused to reduce Davenport’s degree of guilt or grant him a new trial.