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SJC-12235

              COMMONWEALTH   vs.   GEORGE T. RHODES, JR.



            Plymouth.    May 15, 2019. - August 16, 2019.

    Present:     Gants, C.J., Gaziano, Lowy, Budd, Cypher, JJ.


Homicide. Practice, Criminal, Capital case, New trial,
     Assistance of counsel, Request for jury instructions.
     Constitutional Law, Assistance of counsel.



     Indictment found and returned in the Superior Court
Department on December 12, 2014.

     The case was tried before Richard J. Chin, J., and a motion
for a new trial, filed on December 26, 2017, was heard by him.


     Joseph M. Kenneally for the defendant.
     Keara L. Kelley, Assistant District Attorney, for the
Commonwealth.


    LOWY, J.     A jury convicted the defendant of murder in the

first degree.    In a motion for a new trial, the defendant argued

that his trial counsel was constitutionally ineffective for

failing to request a voluntary manslaughter jury instruction

based on reasonable provocation stemming from the defendant's
                                                                     2


reaction to an injury to his penis that the victim inflicted

during a sexual encounter.   The motion was denied.    We conclude

that the motion judge abused his discretion in determining that

trial counsel's decision to not request a voluntary manslaughter

instruction was a reasonable tactical choice.   Accordingly, we

vacate the jury's verdict and remand the matter to the Superior

Court for a new trial consistent with this opinion.1

     Background.   Because we are called upon to determine

whether an instruction on voluntary manslaughter was warranted,

we recite the facts in the light most favorable to the

defendant, reserving certain facts for later discussion.     See

Commonwealth v. Howard, 479 Mass. 52, 57 (2018).

     On September 8, 2014, the victim left her home in Brockton

after having an argument with her daughter.   At approximately 9

P.M., the victim met the defendant, whom she had not previously


     1 The defendant also argues that the prosecutor made three
statements in her closing argument that were not supported by
the evidence. Two statements suggested that the victim was
aware of her impending death while she lay on the floor of the
garage, and the third statement asserted that there was evidence
that the defendant strangled the victim. None of these
statements was objected to, and the defendant contends they
created a substantial likelihood of a miscarriage of justice.
Because we reverse the conviction on other grounds, we need not
determine whether the prosecutor's statements were proper
arguments "for a conviction based on the evidence and on
inferences that may reasonably be drawn from the evidence."
Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). We remind the
Commonwealth, however, to be certain that all arguments raised
at the defendant's new trial are squarely grounded in the
evidence presented.
                                                                    3


known.   The pair spent the evening smoking marijuana and

drinking together.   Surveillance video captured them walking on

Main Street between 10 and 11 P.M., at one point walking with

their arms intertwined.

     At 10:56 P.M., video appears to show the defendant and the

victim entering a nearby garage bay where a local towing company

stored many of its vehicles.    Ten minutes later, surveillance

shows the defendant leaving the garage bay alone, carrying a bag

similar to the bag the victim was seen carrying earlier in that

night.   Shortly thereafter, a tow truck driver arrived at the

garage, unaware that the victim lay on the floor injured.      He

backed the truck into the bay, running over the victim's body.2

At that time, the victim was still alive.     She was taken to a

hospital and pronounced dead at 11:57 P.M.

     The jury heard testimony from both the doctor who examined

the victim at the hospital and the doctor who performed her

autopsy.   When the victim arrived at the hospital, she was

wearing only a shirt.     She had no pulse.   The emergency room

doctor described the victim's numerous injuries, including head

trauma and facial swelling, a broken pelvis, fluid in her

abdomen, and an ankle injury.    The victim had three star-shaped




     2 The truck caused injuries to the victim's legs and torso,
whereas separate blunt force trauma caused the injuries to her
head.
                                                                    4


wounds to her head, evidence of a skull fracture, blood in her

ear canals, and a swollen eye.   Her head injuries were severe

and, in the emergency room doctor's opinion, inconsistent with

being struck by a tow truck.   The medical examiner reiterated

that the victim had several blunt force injuries to her head and

face and severe internal injuries, which were caused by an

incident separate from the incident that caused the head

injuries.

    An expert also testified for the defendant.    All three

experts agreed that the victim suffered at least three head

injuries, and there was conflicting testimony whether the head

injuries would have been fatal even had the victim not

subsequently been hit by the tow truck.   Only the defendant's

expert opined that the victim's head injuries were not

independently fatal.   Bloody tracks from the truck's tires

indicated that the victim's head injuries had occurred before

she was hit by the truck.

    While the defendant was being booked at the police station,

he showed police an injury that one officer described as a "dime

size chunk taken out of the tip of his penis."    A friend of the

defendant's testified that the defendant told him that he had

been drinking and smoking marijuana with a girl on the night the

victim was killed, that "she was giving him a blow job and she

bit his privates" and that "she bit him hard."    The friend
                                                                   5


further stated that the defendant told him that the girl had

blood in her mouth and passed out after she had bitten him.

    Deoxyribonucleic acid (DNA) testing confirmed that the

defendant's DNA matched blood samples found inside the victim's

mouth and other blood stains inside the garage bay.    The

defendant's saliva was found on the victim's vagina.   Defense

counsel argued in closing, among other things, that the jury

would be warranted in finding that the victim bit the defendant

during consensual sex and that "in his anger he . . . smashed

her head into the ground."

    After his conviction, the defendant filed a motion for a

new trial, asserting that trial counsel's failure to request a

jury instruction on voluntary manslaughter on a theory of

reasonable provocation constituted ineffective assistance of

counsel.   Trial counsel submitted an affidavit stating that his

failure to request that instruction was an oversight and was not

part of his trial strategy.   The motion judge, who was also the

trial judge, discredited that portion of the affidavit.      In

denying the motion for a new trial, the judge determined that a

voluntary manslaughter instruction was not supported by the

evidence and that defense counsel's failure to request that

instruction was a reasonable tactical choice, as voluntary

manslaughter would have conflicted with his defense that the tow
                                                                    6


truck, and not the defendant, ultimately caused the victim's

death.3

     Discussion.   Because the defendant was convicted of murder

in the first degree, we consider his claim of ineffective

assistance of counsel under G. L. c. 278, § 33E, to determine

whether there was an error that created a substantial likelihood

of a miscarriage of justice.     This standard of review is more

favorable to a defendant than the constitutional standard.

Commonwealth v. Pena, 455 Mass. 1, 22 (2009).    See Commonwealth

v. Glover, 459 Mass. 836, 842 (2011) (defining constitutional

standard for ineffective assistance of counsel).    "[T]he

decision to allow or deny [a motion for new trial] rests within

the sound discretion of the motion judge, and we give deference

to the factual findings of that judge, particularly when he or

she was also the trial judge."    Commonwealth v. LaBrie, 473

Mass. 754, 771 (2016), citing Commonwealth v. Pillai, 445 Mass.

175, 185 (2005).   Where, as here, a claim of ineffective

assistance of counsel is based on a strategic decision, we must

determine whether that decision was manifestly unreasonable such

that "lawyers of ordinary training and skill in the criminal


     3 At trial, defense counsel argued that the victim's head
injuries were not the cause of her death. He sought an
involuntary manslaughter instruction on the theory that the
defendant was wanton and reckless in leaving the victim in the
garage bay with a head injury, allowing her to be struck by the
tow truck.
                                                                   7


law" would not consider it competent.   Commonwealth v.

Kolenovic, 471 Mass. 664, 674 (2015), S.C., 478 Mass. 189

(2017), quoting Pillai, supra at 186-187.

    a.   Instruction on voluntary manslaughter.   An instruction

on voluntary manslaughter based on reasonable provocation is

warranted where the evidence raises "a reasonable doubt 'that

something happened which 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 what happened actually did produce such a

state of mind in the defendant.'"   Commonwealth v. Felix, 476

Mass. 750, 756-757 (2017), quoting Commonwealth v. Walden, 380

Mass. 724, 728 (1980).

    "The evidence must be sufficient to create a reasonable
    doubt in the minds of a rational jury that a defendant's
    actions were 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"
    (citation omitted).

Commonwealth v. Groome, 435 Mass. 201, 220 (2001).   Physical

contact initiated by the victim is not always sufficient to

warrant a voluntary manslaughter instruction, see Felix, supra

at 757, but "even a single blow from the victim can constitute

reasonable provocation."   Commonwealth v. Acevedo, 446 Mass.

435, 444 (2006).   A victim's conduct must present a "threat of
                                                                    8


serious harm" to be considered reasonable provocation.

Commonwealth v. Ruiz, 442 Mass. 826, 839 (2004).

    We conclude that the facts of this case, when viewed in the

light most favorable to the defendant, supported an instruction

on voluntary manslaughter based on reasonable provocation.

Here, the defendant was in the midst of a consensual sexual

encounter when the victim bit his penis hard enough to remove a

"dime size chunk" and drew enough blood that it was in the

victim's mouth and elsewhere in the garage bay.    Cf.

Commonwealth v. Berry, 431 Mass. 326, 335 (2000) (voluntary

manslaughter instruction warranted where victim struck defendant

with beer bottle).   We conclude that this event would "have

roused '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 resulted in the

defendant slamming the victim's head against the cement floor of

the garage.   Commonwealth v. Burgess, 450 Mass. 422, 439 (2008),

quoting Walden, 380 Mass. at 728 (1980).

    This case is distinguishable from those in which we

concluded that the defendant's actions were not the result of

reasonable provocation.   See Felix, 476 Mass. at 758 (no

reasonable provocation where victim lunged at and punched

defendant who had entered her bedroom uninvited and locked

door); Commonwealth v. Parker, 402 Mass. 333, 344 (1988), S.C.,
                                                                     9


412 Mass. 353 (1992) and 420 Mass. 242 (1995) (no reasonable

provocation where elderly disabled victim punched defendant in

face twice before defendant strangled him); Commonwealth v.

Brown, 387 Mass. 220, 227 (1982) (no reasonable provocation

where victim choked defendant by pulling neck of his shirt).

     Further, we conclude that the defendant telling his friend

that the victim had bitten him hard, and showing his injury to a

police officer during booking, unprompted, was sufficient to

allow the jury to infer that he was subjectively provoked.     See

Commonwealth v. Valentin, 474 Mass. 301, 311 (2016) ("jury must

be able to infer from the evidence not only that a reasonable

person would have been so provoked, but also that the defendant

was in fact provoked and that he or she did not have sufficient

time to cool off").4

     b.   Assistance of counsel.   At trial, defense counsel

argued causation, contending that (1) the defendant should be

acquitted because the truck caused the victim's death, and (2)

the jury should be instructed on involuntary manslaughter on the

theory that the defendant was, at most, wanton and reckless for

leaving the victim injured in the garage bay.    Unlike the motion


     4 We note that if the jury were to determine that the victim
was being sexually assaulted by the defendant at the time that
she bit him, then the bite could not serve as mitigation for the
defendant's response. Of course, victims of a sexual assault
may defend themselves, and the perpetrator's response to such
efforts does not constitute mitigation.
                                                                  10


judge, we conclude that it was manifestly unreasonable for trial

counsel not to also request an instruction on voluntary

manslaughter.

    In many circumstances, it is not manifestly unreasonable

for a defendant to forgo a possible defense with an eye toward a

possible acquittal or conviction of a lesser charge.   There is

nothing wrong with a defense strategy that follows the advice,

attributed to Andrew Carnegie, to "put all your eggs in one

basket."   See Glover, 459 Mass. at 843-844 (not manifestly

unreasonable for defense counsel to proceed on one theory of

voluntary manslaughter when each theory was supported by

evidence).

    Here, however, defense counsel's strategic decision

deprived the defendant of effective representation.    The

evidence viewed in the light most favorable to the defendant

could have supported an involuntary manslaughter charge based on

the defendant having caused the victim's head injuries and then

leaving her unconscious on the garage floor where she was run

over by the tow truck.   A voluntary manslaughter instruction

would not have conflicted with this theory where it also was

premised on the defendant having struck the victim's head on the

concrete floor.   There was compelling evidence in the record --

two of three experts testified that the victim's head injuries

would have led to her death, and there was no reasonable
                                                                     11


question that the defendant was the last person to see the

victim before she was hit by the tow truck -- to support a

finding that the defendant killed the victim.     Such an

instruction merely would have suggested that, even if the victim

was fatally injured by the defendant, the defendant's actions

were the result of reasonable provocation, as a manifest and

visceral reaction to his injury.     Defense counsel erred when he

did not ask for the instruction.

    Defense counsel's error created a substantial likelihood of

a miscarriage of justice, such that the "error was likely to

have influenced the jury's conclusion."     Commonwealth v. Alicea,

464 Mass. 837, 845 (2013), quoting Commonwealth v. Wright, 411

Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).

     Here, the jury would have been justified in finding that

the defendant's actions caused the victim's death, but that he

had been reasonably provoked, where evidence on that point was

strong.   In closing argument, defense counsel even argued the

facts that would have supported an instruction for voluntary

manslaughter, stating the jury "would be well warranted in

finding that after they engaged in sex, after [the defendant's]

penis was bitten, in his anger he went over to [the victim] and

smashed her head into the ground."    Absent an instruction on

voluntary manslaughter, the jury could not consider this well-

argued possibility.   Accordingly, we lack substantial confidence
                                                                 12


that the jury verdict would have been the same had the error not

been made.   See Commonwealth v. Alcide, 472 Mass. 150, 169

(2015); Commonwealth v. Sena, 429 Mass. 590, 595 (1999), S.C.,

441 Mass. 822 (2004).

    Conclusion.    Because defense counsel's failure to request a

voluntary manslaughter instruction created a substantial

likelihood of a miscarriage of justice, we vacate the

defendant's conviction and remand the matter to the Superior

Court for a new trial consistent with this opinion.

                                   So ordered.
