Summary
The Massachusetts Supreme Judicial Court affirmed Pov Hour’s conviction of murder in the first degree as a joint venturer under the theory of extreme atrocity or cruelty. The court rejected challenges to identification evidence, arrest-related testimony, jury instructions, and the refusal to instruct on a lesser included offense. It also declined to reduce the verdict under G. L. c. 278, § 33E.
Topics
Practice areas
Questions Presented
- Whether photographic identification testimony, photographic arrays, contemporaneous notations on the arrays, and testimony concerning the defendant's arrest were improperly admitted.
- Whether the jury instructions on provocation and sudden combat improperly shifted the burden of persuasion to the defendant.
- Whether the evidence required an instruction on the lesser included offense of assault and battery by means of a dangerous weapon.
- Whether the jury was required to unanimously agree on the Cunneen factors supporting murder by extreme atrocity or cruelty.
- Whether the court should reduce the first-degree murder verdict to manslaughter under Mass. Gen. Laws ch. 278, § 33E.
Holdings
- Identification testimony and the photographic arrays were relevant and admissible even though the defendant's identity was not disputed at trial, because the evidence explained how the accusing finger came to be pointed at him and was relevant to the identification process.
- The admission of contemporaneous notations on the photographic arrays did not constitute an abuse of discretion or create a substantial likelihood of a miscarriage of justice.
- Admission of testimony that a team of officers arrested the defendant did not create a substantial likelihood of a miscarriage of justice.
- Instructions tracking the Model Jury Instructions on Homicide did not unconstitutionally shift the burden of persuasion to the defendant merely because they used 'must have' and 'must be' language.
- The defendant was not entitled to an instruction on assault and battery by means of a dangerous weapon, specifically a shod foot.
- The defendant was not entitled to a specific-unanimity instruction requiring the jury to agree on the particular Cunneen factors supporting murder by extreme atrocity or cruelty.
- The circumstances did not warrant reducing the defendant's first-degree murder conviction to manslaughter under § 33E.
Key quotations
“An instruction on a lesser included offense is appropriate where the “evidence provides a rational basis for acquitting the defendant of the crime charged and convicting him of the lesser included offence.”” (42)
“If [a defendant] possess[es] the malice aforethought required for a conviction of murder, he is guilty as a joint venturer even if he did not hold the murder weapon or inflict the fatal blows.” (42-43)
“We decline the defendant’s invitation to reconsider our holding that “a defendant is not entitled to an instruction requiring specific unanimity as to the factors set forth in Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983), in determining whether a murder has been committed with extreme atrocity or cruelty.”” (43)
Factual background
During an altercation over a double-parked automobile, the defendant and several companions fought the victim. The codefendant repeatedly stabbed the victim, including with a fatal chest wound, while the defendant repeatedly punched and kicked him before and after the stabbing, dragged him toward the curb, and took his necklace. The defendant later told a companion not to speak about the incident and warned that something else would happen. The defendant conceded participating in a fistfight but argued that he was intoxicated, lacked knowledge of the knife, and did not cause the victim's death.
Procedural history
A jury convicted the defendant, as a joint venturer, of murder in the first degree on the theory of extreme atrocity or cruelty. The defendant was tried with Bol Choeum, who was also convicted of murder in the first degree. On appeal with new counsel, the defendant challenged identification and arrest-related evidence, the instructions on provocation, sudden combat, and lesser included offenses, and sought a reduction of the verdict to manslaughter. The Supreme Judicial Court affirmed the conviction and declined to exercise its authority under § 33E.