Voluntary manslaughter (lesser included offense to murder) [158]

To prove the defendant guilty of murder in the first or second degree], the Commonwealth is required to prove beyond a reasonable doubt that there were no mitigating circumstances that reduce the defendant's culpability.  A mitigating circumstance is a circumstance that reduces the seriousness of the offense in the eyes of the law.  A killing that would otherwise be murder in the first or second degree is reduced to the lesser offense of voluntary manslaughter where the Commonwealth has failed to prove that there were no mitigating circumstances.  Therefore, if the Commonwealth proves all the required elements of murder, but fails to prove beyond a reasonable doubt that there were no mitigating circumstances, you must not find the defendant guilty of murder, but you shall find the defendant guilty of voluntary manslaughter.

I will now instruct you on this (each of these) mitigating circumstance(s).

  1. Heat of passion on reasonable provocation.  Heat of passion includes the states of mind of passion, anger, fear, fright, and nervous excitement.[159]

Reasonable provocation is provocation by the person killed[160] that would be likely to produce such a state of passion, anger, fear, fright, or nervous excitement in a reasonable person as would overwhelm his capacity for reflection or restraint and did actually produce such a state of mind in the defendant.[161] The provocation must be such that a reasonable person would have become incapable of reflection or restraint and would not have cooled off by the time of the killing, and that the defendant himself was so provoked and did not cool off at the time of the killing.[162] In addition, there must be a causal connection between the provocation, the heat of passion, and the killing.[163] The killing must occur after the provocation and before there is sufficient time for the emotion to cool, and must be the result of the state of mind induced by the provocation rather than by a preexisting intent to kill or grievously injure, or an intent to kill formed after the capacity for reflection or restraint has returned.[164]

Mere words, no matter how insulting or abusive, do not ordinarily by themselves constitute reasonable provocation.[165] [But there may be reasonable provocation where the person killed discloses information that would cause a reasonable person to lose his self-control and learning of the matter disclosed did actually cause the defendant to do so.][166]

Reasonable provocation does not require physical contact.[167] But physical contact, even a single blow, may amount to reasonable provocation.  Whether the contact is sufficient will depend on whether a reasonable person under similar circumstances would have been provoked to act out of emotion rather than reasoned reflection and on whether the defendant was in fact so provoked.[168] The heat of passion must also be sudden; that is, the killing must have occurred before a reasonable person would have regained control of his emotions and the defendant must have acted in the heat of passion before he regained control of his emotions.[169]

 If the Commonwealth has not proved beyond a reasonable doubt the absence of heat of passion on reasonable provocation, the Commonwealth has not proved that the defendant committed the crime of murder.

     2.  Heat of passion induced by sudden combat.  Sudden combat involves a sudden assault by the person killed and the defendant upon each other.  In sudden combat, physical contact, even a single blow, may amount to reasonable provocation.[170] Whether the contact is sufficient will depend on whether a reasonable person under similar circumstances would have been provoked to act out of emotion rather than reasoned reflection and on whether the defendant was in fact so provoked.[171] The heat of passion induced by sudden combat must also be sudden; that is, the killing must have occurred before a reasonable person would have regained control of his emotions and the defendant must have acted in the heat of passion without cooling off at the time of the killing.[172] If the Commonwealth has not proved beyond a reasonable doubt the absence of heat of passion induced by sudden combat, the Commonwealth has not proved that the defendant committed the crime of murder.

In summary, a killing that would otherwise be murder is reduced to the lesser offense of voluntary manslaughter if the defendant killed someone because of heat of passion on reasonable provocation or heat of passion induced by sudden combat.  The Commonwealth has the burden of proving beyond a reasonable doubt that the defendant did not kill as a result of heat of passion on reasonable provocation or heat of passion induced by sudden combat.  If the Commonwealth fails to meet this burden, the defendant is not guilty of murder, but you shall find the defendant guilty of voluntary manslaughter if the Commonwealth has proved the other required elements.

     3.  Excessive use of force in self-defense or defense of another.  As I have explained to you earlier, a person is not guilty of any crime if he acted in proper self-defense [or defense of another].  The Commonwealth must prove beyond a reasonable doubt that the defendant did not act in the proper exercise of self-defense [or defense of another].  If the Commonwealth fails to do so, then you must find the defendant not guilty because an element of the crime that the Commonwealth must prove beyond a reasonable doubt is that the defendant did not act in the proper exercise of self-defense [or defense of another].[173]

In this case, you must consider whether the defendant used excessive force in defending himself [or another].  The term excessive force in self-defense means that, considering all the circumstances, the defendant used more force than was reasonably necessary to defend himself [or another].  In considering the reasonableness of any force used by the defendant, you may consider any factors you deem relevant to the reasonableness of the defendant's conduct under the circumstances, including evidence of the relative physical capabilities of the combatants, the number of persons who were involved on each side, the characteristics of any weapons used, the availability of room to maneuver, the manner in which the deadly force was used, the scope of the threat presented, or any other factor you deem relevant to the reasonableness of the defendant's conduct under the circumstances.[174]

I have already told you that to prove the defendant guilty of murder, the Commonwealth is required to prove beyond a reasonable doubt that the defendant did not act in the proper exercise of self-defense [or the defense of another].  If the Commonwealth proves that the defendant did not act in proper self-defense [or in the proper defense of another] solely because the defendant used more force than was reasonably necessary, then the Commonwealth has not proved that the defendant committed the crime of murder but, if the Commonwealth has proved the other required elements, you shall find the defendant guilty of voluntary manslaughter.[175]

A. Voluntary manslaughter (absent a murder charge)

In this case, the defendant is charged with voluntary manslaughter.  To prove the defendant guilty of voluntary manslaughter, the Commonwealth must prove beyond a reasonable doubt the following elements:[176]

  1. The defendant intentionally inflicted an injury or injuries on the victim likely to cause death.
  2. The defendant caused the death of the victim.
  3. [Where there is evidence of self-defense or defense of another] The defendant did not act in proper self-defense or in the proper defense of another.

Footnotes

[158] "If any view of the evidence . . . would permit a verdict of manslaughter rather than murder, a manslaughter charge should be given."  Commonwealth v. Brooks, 422 Mass. 574, 578 (1996).  See Commonwealth v. Glover, 459 Mass. 836, 842 (2011) ("Because the theories [of reasonable provocation and excessive use of force in self-defense] are distinct, a defendant is entitled to jury instructions on voluntary manslaughter based on both theories where the evidence supports them").  "If the question whether to give a manslaughter instruction is at all close, especially . . . where the defendant testifies, prudence favors giving the instruction."  Commonwealth v. Felix, 476 Mass. 750, 757 (2017).

[159] Commonwealth v. Walden, 380 Mass. 724, 728 (1980) ("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 . . . actually . . . produce such a state of mind in the defendant").

[160] Commonwealth v. Hinds, 457 Mass. 83, 90-91 (2010), quoting Commonwealth v. Ruiz, 442 Mass. 826, 838-839 (2004) ("provocation must come from the victim").  Note, however, that the doctrine of transferred intent can apply where the evidence raises the possibility of reasonable provocation, in which case the provocation could arise from someone other than the victim.  See Commonwealth v. Camacho, 472 Mass. 587, 603 (2015) (noting, in dicta, "agree[ment] with th[e] general proposition" that, "in circumstances where one (A) who is reasonably and actually provoked by another person (B) into a passion to kill B, shoots at B but accidentally hits and kills an innocent bystander, A's crime is voluntary manslaughter"), quoting Commonwealth v. LeClair, 445 Mass. 734, 743 n.3 (2006).

[161] Commonwealth v. Burgess, 450 Mass. 422, 439 (2008), quoting Commonwealth v. Walden, 380 Mass. at 728 ("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 . . . actually . . . produce such a state of mind in the defendant"); Commonwealth v. Colon, 449 Mass. 207, 220 (2007) (provocation must be sufficient to cause accused to "lose his self-control in the heat of passion"); Commonwealth v. Lacava, 438 Mass. 708, 721 n.15 (2003), quoting Commonwealth v. Walden, 380 Mass. at 728 (provocation must "eclipse . . . capacity for reflection or restraint").

[162] Commonwealth v. Glover, 459 Mass. at 841, quoting Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006) ("defendant's actions must be both objectively and subjectively reasonable.  That is, the jury must be able to infer that a reasonable person would have become sufficiently provoked and would not have 'cooled off' by the time of the homicide, and that in fact a defendant was provoked and did not cool off" [internal quotation omitted]); Commonwealth v. Garabedian, 399 Mass. 304, 313 (1987) ("reasonable person would have become sufficiently provoked and that, in fact, the defendant was provoked").

[163] Commonwealth v. Burgess, 450 Mass. at 437-438, quoting Commonwealth v. Garabedian, 399 Mass. at 313 ("voluntary manslaughter requires the trier of fact to conclude that there is a causal connection between the provocation, the heat of passion, and the killing").

[164] Commonwealth v. Anderson, 408 Mass. 803, 805 n.1 (1990) (judge's instructions to this effect upheld).

[165] Commonwealth v. Tu Trinh, 458 Mass. 776, 783 (2011), quoting Commonwealth v. Vick, 454 Mass. 418, 429 (2009); Commonwealth v. Mercado, 452 Mass. 662, 672 (2008) (proper instruction explained "the distinction between mere words, which 'no matter how insulting or abusive, standing alone do not constitute reasonable provocation,' and statements that convey information 'of the nature to cause a reasonable person to lose his or her self-control and did actually cause the defendant to do so . . . '").

[166] Commonwealth v. Schnopps, 383 Mass. 178, 180-181 (1981) (wife's sudden admission of ongoing adultery sufficient provocation to warrant instruction on voluntary manslaughter); Commonwealth v. Bermudez, 370 Mass. 438, 441-442 (1976) ("A reasonable man can be expected to control the feelings aroused by an insult or an argument, but certain incidents may be as provocative when disclosed by words as when witnessed personally").  Generally, for words or statements to incite heat of passion, they must contain new information as distinct from mere insults, taunts, or previously known, if inflammatory, information.  See Commonwealth v. Ruiz, 442 Mass. at 839-840.

[167] Commonwealth v. Morales, 70 Mass. App. 526, 532-533 (2007).

[168] Commonwealth v. Felix, 476 Mass. at 757 (physical contact between defendant and victim not always sufficient to warrant manslaughter instruction, especially "where the defendant outweighs the victim and is physically far more powerful").

[169] Commonwealth v. Smith, 460 Mass. at 325, quoting Commonwealth v. Colon, 449 Mass. at 220 ("Provocation and 'cooling off' time must meet both a subjective and an objective standard"); Commonwealth v. Acevedo, 446 Mass. at 444-445.  Cf. Acevedo at 444 n.14, citing Commonwealth v. Ruiz, 442 Mass. at 839 (where victim's slaps and physical contact never posed threat of serious harm to defendant, this did not "warrant a manslaughter instruction, even when the victim initiated the contact").

[170] Commonwealth v. Espada, 450 Mass. 687, 696-697 (2008) (sudden combat as basis for voluntary manslaughter requires that "victim . . . attack the defendant or at least strike a blow against the defendant").

[171] Commonwealth v. Espada, 450 Mass. at 697 (assault must pose real threat of serious harm).

[172] See, e.g., Commonwealth v. Vick, 454 Mass. at 429; Commonwealth v. Amaral, 389 Mass. 184, 188 (1983), quoting Commonwealth v. Webster, 59 Mass. 295, 307 (1850) ("whenever . . . the blood has had reasonable time or opportunity to cool . . . it will be murder [rather than manslaughter]"); Commonwealth v. Acevedo, 446 Mass. at 443 ("jury must be able to infer that a reasonable person would have become sufficiently provoked and would not have 'cooled off' by the time of the homicide, and that in fact a defendant was provoked and did not cool off").

[173] Commonwealth v. Santos, 454 Mass. at 772-777 (extensive discussion of murder instructions regarding self-defense); Commonwealth v. Silva, 455 Mass. 503, 525-526 (2009) ("One of the elements of self-defense is the reasonableness of the force used to defend oneself, and if the Commonwealth fails to disprove all the elements of self-defense except the element of reasonableness of the force used, i.e., that the defendant used excessive force in self-defense, then self-defense does not lie, but excessive force in self-defense will mitigate murder to voluntary manslaughter"); Commonwealth v. Glacken, 451 Mass. at 167 ("To establish that the defendant did not act in proper self-defense, the Commonwealth must prove at least one of the following propositions beyond a reasonable doubt:  (1) the defendant did not have a reasonable ground to believe, and did not believe, that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force; or (2) the defendant had not availed himself of all proper means to avoid physical combat before resorting to the use of deadly force; or (3) the defendant used more force than was reasonably necessary in all the circumstances of the case.  If the Commonwealth fails to prove either (1) or (2), but does prove (3) -- that is, does prove beyond a reasonable doubt that in his exercise of self-defense the defendant used excessive force -- then the jury must return a verdict of not guilty of murder and would be warranted in returning a verdict of guilty of voluntary manslaughter").

[174] Commonwealth v. Kendrick, 351 Mass. at 212.

[175] Commonwealth v. Santos, 454 Mass. at 776 ("permissive language should not be used where mandatory language is required . . . .  If the defendant killed the victim by the use of excessive force in self-defense, the defendant must be found guilty of manslaughter; the jury cannot be given the option of considering that a murder has been committed"); Commonwealth v. Torres, 420 Mass. 479, 491-492 (1995) (in comparable charge, "judge should have used the mandatory word 'shall' rather than the permissive 'may'"). 

    [176] See Commonwealth v. Ware, 438 Mass. 1014, 1015 (2003). 

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    Date published: April 25, 2018

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