Commonwealth v. Howard (Lawyers Weekly No. 10-036-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12199 COMMONWEALTH vs. CLYDE HOWARD. Middlesex. December 8, 2017. – March 5, 2018. Present: Gants, C.J., Gaziano, Lowy, & Cypher, JJ. Homicide. Practice, Criminal, Instructions to jury, Lesser included offense, Capital case, Jury and jurors. Jury and Jurors. Evidence, Prior misconduct. Indictment found and returned in the Superior Court Department on March 19, 2009. Following review by this court, 469 Mass. 721 (2014), the case was tried before Brian A. Davis, J. Sharon Dehmand for the defendant. Jamie Michael Charles, Assistant District Attorney, for the Commonwealth. GAZIANO, J. On 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. 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 […]