Commonwealth v. Mcafee

2008-MBAR-014

Commonwealth v. Michael McAfee

No. 199511206

Superior Court of Massachusetts

February 21, 2008

Other Parties: Commonwealth v. Ronny Elliot

Opinion No.: 101573

As-is Docket Number: 1995-11206

Other Docket Numbers: 199511207

As-is Other Docket Numbers: 1995-11207

Venue Suffolk

File Date: February 22, 2008

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Neel, Stephen E., J.

Opinion Title: MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS FOR NEW TRIALS

Before the Court are defendant Michael McAfee's and defendant Ronny Elliot's related motions for new trials pursuant to Mass.R.Crim.P. 30(b). After hearing and a review of the parties' submissions and the record, the Court denies the motions for the following reasons.

BACKGROUND

In the early evening of July 10, 1995, Michael McAfee (McAfee) and Ronny Elliot (Elliot) had a verbal altercation with Alvaro Sanders (Sanders) at a McDonald's in the Roxbury section of Boston. Sanders, after breaking off the confrontation and perhaps threatening to return, then sought out the assistance of Cassius Love (Love) to retaliate against McAfee and Elliot (defendants).

Once Sanders met up with Love, the two canvassed the area. At some point, Sanders, on foot, and Love, on a bicycle, spied the defendants, who were with a group of other youths on a street corner. Although the defendants ran off upon seeing Sanders and Love, the defendants may have later learned that Sanders told the remaining members of the group that he was going to "fuck [the defendants] up."

At least one-half to one hour after the altercation at McDonald's, Sanders and Love, who were at that point driving in Sanders's car, located the defendants, who were riding bicycles, and chased them the wrong way down a one-way street to Elliot's house on Catawba Street in Roxbury. Sanders stopped the car in the middle of the street and he and Love got out, leaving the engine running and the doors open. It is possible that Sanders had a pistol with him,[1] or at least that Elliot believed that Sanders was armed.[2] Elliot got off his bicycle and ran inside his house. McAfee got off his bicycle and ran down an alley next to Elliot's house.

Elliot then emerged from his house carrying a rifle and joined McAfee, who had reappeared from the alley, on the sidewalk behind an automobile. Love stood in the middle of the street directly in front of the defendants, at a distance of about ten to fifteen feet. Sanders stood approximately ten feet to Love's right, about twenty feet from the defendants.

The four began arguing. Sanders and Love challenged the defendants to a fistfight. Elliot alternated pointing the rifle at Sanders and Love. McAfee twice yelled at Elliot "Lace them niggers." When Elliot did not shoot McAfee grabbed for the rifle, and Elliot passed it to him. McAfee said, "Fuck this. I'm about to lace these niggers," and aimed the rifle at Love, who, unarmed, raised his hands in the air. Love told McAfee to put down the rifle and challenged him to a one-on-one fistfight. McAfee then cocked the rifle and shot Love multiple times, and fired once at Sanders, missing him. Sanders ran from the scene; Love collapsed on the street and was later pronounced dead. The defendants fled.

The Commonwealth tried the defendants together as joint venturers. The jury found McAfee guilty of murder in the first degree on theories of both deliberate premeditation and extreme atrocity and cruelty, and found Elliot guilty of murder in the second degree. The jury also found McAfee guilty of armed assault with intent to murder and illegal possession of a rifle, and found Elliot guilty of armed assault with intent to kill and illegal possession of a rifle. Upon obtaining new counsel, the defendants appealed, and the Supreme Judicial Court, after granting direct appellate review of Elliot's appeal, affirmed their respective convictions in Commonwealth v. McAfee, 430 Mass. 483 (1999), and Commonwealth v. Elliot, 430 Mass. 498 (1999).

Both defendants filed motions for new trials. The defendants alleged that police had intimidated a defense witness into recanting her anticipated trial testimony. Before the judge to whom the post-conviction matters had initially been assigned acted on those motions, each defendant obtained further successor counsel and filed an additional memorandum in support of his motion. The defendants' supplemental memoranda raised claims of jury instruction error pursuant to the Supreme Judicial Court's ruling in Commonwealth v. Acevedo, 427 Mass. 714 (1998).

After the defendants' new trial motions were ultimately reassigned to the undersigned judge, the defendants, having failed to locate the allegedly intimidated witness, jointly moved for the Court to hear and rule only on the jury instruction error claims. Allowing that motion, this Court heard oral argument and received post-argument memoranda from Elliot and the Commonwealth.[3]

DISCUSSION

Each defendant argues that the Court should grant him a new trial because the trial judge gave the jury erroneous instructions which allowed the jury to convict the defendants of murder without finding beyond a reasonable doubt that the defendants had acted with malice. Specifically, the defendants assert and the Commonwealth concedes, that the trial judge, in instructing the jury on provocation, committed the error outlined in Commonwealth v. Acevedo, 427 Mass. 714 (1998).[4] In the main charge, the judge instructed the jury, "In order to prove a defendant guilty of voluntary manslaughter, the Commonwealth must prove... that the defendant injured the victim as a result of sudden combat or in the heat of passion or using excessive force in self-defense..." (Tr. vol. V at 144.) In the supplemental charge, the judge essentially repeated the instruction: "So, in order to prove either of these defendants guilty of voluntary manslaughter, the Commonwealth must prove... that the defendant injured the victim as a result of being in sudden combat or in the heat of passion or using excessive force in self-defense..." (Tr. vol. V at 171.) As explained by the Supreme Judicial Court, "That language incorrectly told the jury that malice is negated by provocation only if provocation is proved beyond a reasonable doubt." Acevedo, 427 Mass. at 716. "The correct rule is that, where the evidence raises the possibility that the defendant may have acted on reasonable provocation, the Commonwealth must prove, and the jury must find, beyond a reasonable doubt that the defendant did not act on reasonable provocation." Id.[5] Neither defendant objected to the judge's instructions at trial or raised the issue on direct appeal. However, the defendants now argue that they are entitled to new trials because the improper jury instructions violated their due process rights and created a substantial risk of a miscarriage of justice. McAfee additionally argues that he is entitled to a new trial because his trial counsel's failure to object to the improper instruction and his appellate counsel's failure to appeal the error deprived him of constitutionally effective assistance of counsel.

"A new trial may be granted under Mass.R.Crim.P. 30(b)... if it appears that justice may not have been done." Commonwealth v. Stewart, 383 Mass. 253, 257 (1981) (quotation omitted); Commonwealth v. Alebord, 68 Mass.App.Ct. 1, 10 (2006). Where a defendant makes no objection to an error at trial and fails to raise the error on direct appeal, the error is waived, and a court "review[s] the defendant's motion for a new trial - whether based on the error itself or framed as a claim of ineffective assistance of counsel - solely to determine whether the error gives rise to a substantial risk of a miscarriage of justice." Commonwealth v. Russell, 439 Mass. 340, 344-45 (2003), citing Commonwealth v. Randolph, 438 Mass. 290, 293-96 (2002), and Commonwealth v. Azar, 435 Mass. 675, 685-87 (2002); Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006); Commonwealth v. Fortini, 68 Mass.App.Ct. 701, 704 (2007).[6] "On a motion for a new trial, the burden of establishing the grounds for a new trial rests on the defendant." Commonwealth v. Hudson, 446 Mass. 709, 714-15 (2006), citing Commonwealth v. Comita, 441 Mass. 86, 93 (2004). As explained below, neither McAfee nor Elliot satisfies his burden of establishing the grounds for a new trial.

As a threshold matter, this Court must determine whether the evidence at trial warranted an instruction on voluntary manslaughter. See Acevedo, 446 Mass. at 442; Fortini, 68 Mass.App.Ct. at 705; Commonwealth v. Gaouette, 66 Mass.App.Ct. 633, 639 (2006); Commonwealth v. Gilmore, 59 Mass.App.Ct. 231, 234 (2003). The "law on the evidence permitting a voluntary manslaughter instruction is well settled." Commonwealth v. LeClair, 445 Mass. 734, 740 (2006), quoting Commonwealth v. Keohane, 444 Mass. 563, 569 n.5 (2005). "Voluntary manslaughter is unlawful homicide arising not from malice, but 'from the frailty of human nature,' as in a case of 'sudden passion induced by reasonable provocation, sudden combat, or excessive force in self-defense.' " Commonwealth v. Carrion, 407 Mass. 263, 267 (1990), quoting Commonwealth v. Nardone, 406 Mass. 123, 130-31 (1989); accord Acevedo, 446 Mass. at 443. Both defendants assert that the evidence supported giving a voluntary manslaughter instruction based on reasonable provocation.

"A provocation instruction need not be given unless there is evidence, viewed in the light most favorable to the defendant, that is 'sufficient to create a reasonable doubt in the minds of a rational jury that a defendant's actions were both objectively and subjectively reasonable.' " Commonwealth v. Zagrodny, 443 Mass 93, 106 (2004), quoting Commonwealth v....