Commonwealth v. Glover
Commonwealth v. Glover
Opinion of the Court
The defendant, Corey Glover, stabbed Forrest Hall in the neck on the night of January 9, 1991, killing him. At trial, the defendant proceeded on the theory that he acted in self-defense, but a jury rejected the argument and convicted the defendant of murder in the second degree. The defendant appeals, claiming that the tactical decision of his trial counsel to forgo a jury instruction on the alternative theory of reasonable provocation was manifestly unreasonable. We affirm.
After a four-day trial, the jury convicted the defendant of murder in the second degree on January 30, 1992.
The defendant thereafter filed a motion for a new trial, which was denied by a judge who was not the trial judge; that denial was affirmed by this court in an unpublished memorandum and order pursuant to rule 1:28 on February 2, 2001. See Commonwealth v. Glover, 50 Mass. App. Ct. 1116 (2001). On February 25, 2009, the defendant filed a second postappeal motion for a new trial, claiming for the first time that his trial counsel was ineffective for failing to request instruction on reasonable provocation. The same judge who denied the defendant’s first new trial motion denied the second motion without a hearing, and the defendant appealed.
b. The Commonwealth’s case. Principally through the testimony of two men, James Kallelis and Michael Bradley, the Commonwealth described a series of events beginning with a robbery of Kallelis by the defendant, and continuing through a confrontation in which the defendant fatally stabbed the victim, Forrest Hall, in the neck. According to Kallelis and Bradley, at about 10:30 p.m. on January 9, 1991, the defendant and a companion, Marshall Flonory, robbed Kallelis at knifepoint of a twelve-pack of beer, champagne, and eight dollars cash on Franklin Street in Lynn.
Kallelis returned to the apartment he shared with Bradley and reported the robbery to him. Bradley said that he might know who the robbers were and might be able to recover the items. He and Kallelis then left the apartment and walked down Franklin Street. On the way, they encountered Hall, who both Kallelis
In the area of Franklin and Albany streets, the three saw Flonory and the defendant, who Kallelis identified as the person who robbed him. As described by Bradley,
Hall said to Flonory, “What’s going on here?” The defendant then reached around Hall and grabbed Kallelis by the jacket. Hall put his left arm out between the defendant and Kallelis and said, “You don’t have a problem with him. You deal with me.” Hall then unzipped his jacket. In response, the defendant said, “Yo, yo, don’t be reaching for nothing.” Hall said, “Yo, I’m not reaching for nothing.”
Hall resumed talking to Flonory, his head turned toward him. The defendant “was looking up and down Franklin Street.” Bradley saw a knife in the defendant’s right hand. Bradley reached up to grab Hall’s shoulder in order to pull him back because the defendant “obviously was going to stab [Hall].” Bradley then saw the defendant move at Hall from the blind side as Hall’s head was turned toward Flonory, stab him once in the neck, and then step back.
Hall put his hand to his neck as blood began shooting out. Hall turned and ran. Bradley and Kallelis ran after him, yelling “Hold on, Forrest, hold on.” Bradley turned back to see the defendant and Flonory walking away. Hall ran to a nearby hospital, where he collapsed. Hall died of a single stab wound below his left ear that severed his jugular vein and cut his carotid artery.
Flonory’s sister (Darlene) also testified for the Commonwealth. In January, 1991, she lived with Flonory in an apart
After the stabbing, the defendant and Flonory went back to the apartment. Darlene overheard Flonory say to the defendant, “You didn’t have to do that, man. . . . You got too much Grove Hall in you.” Flonory told the defendant, “that was my friend, and you seen, it wasn’t like that.” Darlene testified that the defendant, who appeared “frightened” and “scared,” replied to Flonory, “Well, better him than me. And the guy, you seen him with his hand in his coat.” Darlene also testified that her written statement to the police was accurate, which stated that the defendant said, “He opened his coat. He opened his coat and he might have been reaching and I figured [I]’d get him before they got me.” As Darlene related, the defendant told Flonory “he was, basically, just trying to defend himself.”
The defendant told Darlene that “he stabbed the guy in the neck.” She asked why there was no blood on him; he explained that he jumped back “so no blood would get on him,” and he demonstrated that movement to her.
c. The defendant’s case. According to the defendant’s version of events, the encounters between the participants began not with a robbery but with an exchange of drugs for beer and wine.
The defendant and Flonory later went out to make another telephone call, and as they were returning, the defendant testified that, “[bjefore I could realize, three guys had walked right up on us” and “it was like almost a confrontation as close as we [were].”
As the defendant testified, Hall “reached in his coat pocket and [] was walking towards me. I pulled out my knife and I stabbed him.”
At the time of the stabbing, the defendant “was moving back” and Hall was “coming toward [him].” Kallelis and Bradley, he testified, “stayed put” and did not advance forward. He later told Darlene: “The guy was reaching in his coat and I stabbed him and I jumped back and he was still pulling something out of his coat.”
When further questioned concerning Darlene’s testimony regarding what was said at her apartment following the stabbing, the defendant testified that he said to Flonory, “Well, the guy was going to hurt me. He reached into his coat,” but denied that he ever said, “Better him than me.”
d. Instructions. At the close of the evidence, the trial judge conducted a conference in which he expressed his intention to instruct the jury on both first and second degree murder, and on self-defense. The judge expressed his view, however, that there was little evidence of self-defense. Defense counsel nonetheless
The next day, before charging the jury, the judge asked defense counsel whether he wanted him “to give the instruction on manslaughter because of provocation and heat of passion and, also, self-defense.” Defense counsel decided to forgo the instruction on heat of passion, stating that, “In my written requests for instructions I included instructions for both of [sz'c] manslaughter as relates to excessive force in self-defense and also as it relates to acting in heat of passion. Upon consideration, I am asking the court not to instruct on manslaughter on a theory of heat and passion [sic]. In a final analysis, it may be counter productive to my argument that the defendant acted in self-defense.”
In his final argument, counsel proceeded as he had informed the court, arguing to the jury, and concluding, that “your absolute duty on the evidence presented is to acquit Corey Glover by saying he acted in self-defense.”
Discussion. The defendant relies principally on Commonwealth v. Acevedo, 446 Mass. 435 (2006), released fourteen years after his trial, arguing that his trial counsel rendered ineffective assistance at his trial by failing to request a jury instruction on reasonable provocation. As the defendant correctly concedes, his claim of ineffective assistance of counsel is waived because he did not raise it at the first opportunity.
“Ineffective assistance of counsel requires behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer, which likely deprived the defendant of an otherwise available, substantial ground of defence. The defendant must demonstrate that better work might have accomplished something material for the defense. A strategic or tactical decision by counsel will not be considered ineffective assistance unless that decision was manifestly unreasonable when made.” Commonwealth v. Acevedo, supra at 442 (citations and internal quotation marks omitted).
“Only strategy and tactics which lawyers of ordinary training and skill in the criminal law would not consider competent are manifestly unreasonable.” Commonwealth v. Pillai, 445 Mass. 175, 186-187 (2005) (citation and quotation marks omitted). Furthermore, “ ‘[¡Judicial scrutiny of counsel’s performance must be highly deferential.’ ” Commonwealth v. Acevedo, supra at 450, quoting from Commonwealth v. Florentino, 396 Mass. 689, 690 (1986).
“[A] manslaughter instruction is required if, on any view of the evidence, regardless of the credibility, manslaughter may be found.” Commonwealth v. Acevedo, supra at 442-443 (citation and quotation marks omitted). “A jury instruction on reasonable provocation is warranted ‘if there is evidence of provocation deemed adequate in law to cause the accused to lose his self-control in the heat of passion, and if the killing followed the provocation before sufficient time had elapsed for the accused’s temper to cool.’ ” Commonwealth v. Acevedo, supra at 443, quoting from Commonwealth v. Andrade, 422 Mass. 236, 237 (1996).
In the present case, the Commonwealth concedes that the evidence supported instruction on reasonable provocation.
On the issue of trial counsel’s decision not to request a provocation instruction, in Acevedo the defendant’s motion for a new trial also “included an affidavit from trial counsel, who stated that he could not recall, or think of, any tactical reason not to request an instruction on provocation in this case.” Commonwealth v. Acevedo, supra at 440. The court concluded that “[assuming that trial counsel’s decision not to request a provocation instruction was tactical, ... it was manifestly unreasonable [because] [t]rial counsel did not pursue an ‘all-or-nothing’ strategy.” Commonwealth v. Acevedo, supra at 447. Rather, the defense counsel’s “request for jury instructions on voluntary and involuntary manslaughter indicate [d] that he wanted the jury to have the option of convicting the defendant of the lesser offenses.” Commonwealth v. Acevedo, supra at 447.
Conversely, here, trial counsel made a conscious tactical decision not to request the provocation instruction: “Upon reflection, I am asking the court not to instruct on manslaughter on a theory of heat of passion. In a final analysis, it may be counter-productive to my argument that the defendant acted in self-defense.” Unlike Acevedo, trial counsel, rather than the Commonwealth, requested that the provocation instruction not be given, Commonwealth v. Acevedo, supra at 439, indicating it was the defense strategy at trial.
Trial counsel’s statement reveals a conscious tactical decision to adopt a strategy based upon self-defense. Compare Commonwealth v. Mills, 54 Mass. App. Ct. 552, 555-556 (2002)
Furthermore, unlike Acevedo, there was no testimony that anyone struck the defendant prior to him stabbing Hall, making it a much less compelling argument that he “los[t] his self-control in the heat of passion . . . before sufficient time had elapsed for [his] temper to cool.” Commonwealth v. Acevedo, supra at 443. While he testified that he was “nervous” during the confrontation, the basis for that fear is much different than the scenario faced by the defendant in Acevedo, who was being beaten by several assailants when he stabbed the victim.
The court in Acevedo noted that while “[s]elf-defense (or excessive force in self-defense) and provocation are not ‘mutually exclusive[,]’ . . . [t]he theory of self-defense does not ‘automatically’ incorporate a theory of reasonable provocation; for example, a provocation instruction is not appropriate when a defendant claims to have acted in self-defense but presents no
Based on the facts in this case, it was not manifestly unreasonable for trial counsel to focus entirely on self-defense, forgoing both argument and instruction on provocation. “When the arguably reasoned tactical or strategic judgments of a lawyer are called into question, we do not second guess competent lawyers working hard for defendants who turn on them when the jury happen to find their clients guilty.” Commonwealth v. Hurley, 455 Mass. 53, 70 (2009) (citations and quotation marks omitted).
Additionally, the court in Acevedo put significant weight on a detailed jury question
Here, the only jury question posed regarded reinstruction on self-defense, manslaughter and malice aforethought. The absence of a jury question similar to the one in Acevedo on mitigation makes the decision here to forgo a provocation instruction reasonable. Once again, unlike Acevedo, counsel continued to
Conclusion. We have to answer the question whether counsel was ineffective in 1992 for not requesting a jury instruction on provocation. Unlike Acevedo, decided in 2006, here the jury did not pointedly request other mitigation grounds; also, counsel in Acevedo had no recollection of his strategy on this point. In contrast, here we have a thoughtful discussion by the defendant’s attorney explaining his tactical decision, both at the original charge stage as well as in response to the jury question. As the motion judge wrote in his memorandum of decision:
“[Tjrial counsel understandably focused on a self-defense claim. After all, the ‘better him than me’ evidence is much more in line with self-defense than reasonable provocation/ heat of passion. Relying on certain language in the Acevedo opinion, the defendant argues that because heat of passion and self-defense factors are so similar, trial counsel ‘had everything to gain and nothing to lose pursuing both available theories of voluntary manslaughter.’ This reasoning is too facile. The reality is that it is a tactical decision whether to emphasize two theories or focus on the most realistic theory. Some experienced trial counsel might agree that there is ‘nothing to lose’ by pressing both theories. Other equally experienced trial counsel would opt for arguing only the most promising approach. Neither tactic is ‘manifestly unreasonable.’ ”
Lastly, if counsel’s performance fell “measurably below that which might be expected from an ordinary fallible lawyer,” one
Order denying second motion for new trial affirmed.
The defendant was also indicted for armed robbery, but the jury found him not guilty of that charge.
KalIelis’s testimony was largely consistent with Bradley’s, though less detailed.
The defendant’s alternative version of events was presented largely through his testimony, but his testimony was corroborated by one Russell Warwick, who related what he said Kallelis had told him when both were in jail together.
According to the defendant’s testimony, the men yelled to him and he
There was testimony that Hall was known by the nickname “Wimpy.”
The defendant had a knife in his possession, though “for no particular reason.”
There was no evidence that Hall was in fact armed.
Defense counsel also mentioned sudden combat as a potential instruction, but after a brief discussion, the request was denied. The subsequent discussion between the judge and counsel does not mention sudden combat as one of the potential instructions under heat of passion.
Though his trial counsel represented him on direct appeal, and his failure to raise the claim in that appeal accordingly may be excused, see Commonwealth v. Lanoue, 409 Mass. 1, 3-4 (1990), his failure to assert the claim in his first new trial motion, when he was represented by new counsel, is not excused.
Taking the defendant’s testimony as true, he was confronted by the physically larger victim and two cohorts; the victim demanded drugs and, when rebuffed, beat his chest, yelled in the defendant’s face, and demanded to know whether the defendant knew who he was; he then unzipped his coat, reached
In Acevedo, the court noted that reasonable provocation was a viable defense because “[t]he jury could have believed that the defendant reasonably was in fear, but that he did not retreat and therefore lost the right to use self-defense, or that he did not have the right to use deadly force because [the victim] was unarmed.” 446 Mass. at 446. Here, the absence of a beating combined with the greater possibility that Hall was armed, alters the calculus. It bears repeating that we are not discussing whether a provocation instruction was warranted but whether it was manifestly unreasonable for trial counsel not to request one.
“Could you elaborate on malice? Please define all mitigating circumstances which should be considered in deciding malice. In other words, other than excessive force in self-defense, are there any other mitigating circumstances that would eliminate malice?” Commonwealth v. Acevedo, supra at 440 n.10.
Dissenting Opinion
(dissenting). I respectfully dissent, because in my view the present case is largely controlled by Commonwealth v. Acevedo, 446 Mass. 435 (2006).
While it is true that trial counsel’s decision to forgo instruction on provocation was demonstrably tactical in the present case, and less clearly so in Acevedo, the distinction does not matter for our purposes unless the choice was reasonable. But Acevedo says clearly that the decision to forgo the instruction in circumstances such as these is manifestly unreasonable. “The defendant had nothing to lose — and much to gain — by advocating all available theories of voluntary manslaughter. In fact, provocation well may have been a ‘more accommodating’ theory for the defendant, as neither self-defense nor excessive force in self-defense would be available if the jury determined that the defendant was not justified in using deadly force against an unarmed person, or that the defendant could have retreated.” Commonwealth v. Acevedo, supra at 447-448.
As for the role of the jury question in Acevedo, I consider it to have furnished a rare insight into the struggles faced by that particular jury, and to have lent force to the conclusion that the absence of instruction on provocation might in fact have made a difference. The question posed by the jury in the present case, requesting additional instruction on the definitions of self-
As the majority has observed, see ante at 803 n. 7, there was no evidence in the present case that the victim was aimed, and the defendant’s own testimony established that nothing stood between him and the apartment shared by Flonory and Darlene, which had been his destination before the victim and his companions confronted him.
While discussing how to respond to the jury’s question, the trial judge observed that, were he to get very deeply into manslaughter, “then I think it prejudices the defendant and it prejudices the Commonwealth, because the Commonwealth did not try their case to show lack of provocation, lack of excuse, this type of thing.” The trial judge then went on to say that he would exclude from his explanation of manslaughter any discussion of manslaughter arising from a killing committed unlawfully without justification or excuse. It was in response to that comment that trial counsel expressed his intention to continue with his tactical decision: “I think when I have come so far as saying I don’t want heat of passion, I have to go all the way.”
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