Commonwealth v. Brum

Summary

The Massachusetts Supreme Judicial Court affirmed the defendant’s convictions for armed robbery and murder in the first degree under theories of extreme atrocity or cruelty and felony-murder. The court held that the evidence did not warrant jury instructions on manslaughter based on reasonable provocation, self-defense, or defense of another, so any instructional error did not create a substantial likelihood of a miscarriage of justice. The court also declined to reduce the murder conviction under G. L. c. 278, § 33E, and found no reversible prejudice from references to the defendant’s prearrest silence.

Holdings

1. The defendant was not entitled to a reasonable-provocation or sudden-combat manslaughter instruction because the evidence, viewed in the light most favorable to him, did not support a legally tenable theory of reasonable provocation.
2. The defendant was not entitled to an instruction on self-defense or defense of another.
3. Although the voluntary-manslaughter instruction contained the burden-shifting error identified in Commonwealth v. Acevedo, the error did not create a substantial likelihood of a miscarriage of justice because the defendant was not entitled to the instruction.
4. The armed-robbery conviction did not have to be dismissed because the murder conviction rested not only on felony murder but also on the separate theory of extreme atrocity or cruelty.
5. The court declined to exercise its extraordinary power under G. L. c. 278, § 33E, to reduce the first-degree murder conviction to second-degree murder.
6. The prosecutor's questioning about the defendant's refusal to speak after receiving Miranda warnings did not create a substantial likelihood of a miscarriage of justice.

Questions Presented

1. Whether the trial court's erroneous voluntary-manslaughter instruction under Commonwealth v. Acevedo created a substantial likelihood of a miscarriage of justice.
2. Whether the evidence warranted instructions on voluntary manslaughter based on reasonable provocation or on self-defense or defense of another.
3. Whether the armed-robbery conviction had to be dismissed as duplicative of the felony-murder conviction.
4. Whether the court should reduce the first-degree felony-murder conviction to second-degree murder under G. L. c. 278, § 33E.
5. Whether the prosecutor's elicitation of the defendant's post-Miranda silence created a substantial likelihood of a miscarriage of justice under Doyle v. Ohio.

Disposition

affirmed