Acevedo, 446 Mass. at 444, 845 N.E.2d 274, quoting Commonwealth v. Ruiz, 442 Mass. 826, 838–839, 817 N.E.2d 771 (2004). See generally Commonwealth v. Nelson, 468 Mass. 1, 14, 7 N.E.3d 1084 (2014) ; Commonwealth v. LeClair, 445 Mass. 734, 740, 840 N.E.2d 510 (2006) (reaffirming “well-established rule that evidence of provocation by a third party, rather than the victim of a homicide, is insufficient to warrant a voluntary manslaughter instruction”).
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.'"
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.'"
Excessive force in self-defense, heat of passion upon reasonable provocation, and heat of passion upon sudden combat, on the other hand, constitute circumstances that may mitigate an unlawful killing from murder to manslaughter. See Commonwealth v. Grassie, 476 Mass. 202, 206-207 (2017), S.C., 482 Mass. 1017 (2019); Commonwealth v. Rodriguez, 461 Mass. 100, 107 (2011), quoting Commonwealth v. LeClair, 445 Mass. 734, 740 (2006). We acknowledge that the loss of credibility suffered by trial counsel as a result of her "broken promise" to produce Sierra's testimony might have gone to the defendant's case as a whole, rather than only to the issue of self-defense.
The defendant said that “he had changed his mind, that he wished to give his side of the story.” This case is controlled by Commonwealth v. LeClair, 445 Mass. 734, 840 N.E.2d 510 (2006), where the court reiterated the teaching of Oregon v. Bradshaw, 462 U.S. 1039, 1045–1046, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), “that a defendant, after invoking his right to counsel, may ‘initiate’ further conversation with the police and that if the defendant has done so, the police may properly interrogate him without violating the Edwards rule.” Commonwealth v. LeClair, 445 Mass. at 739, 840 N.E.2d 510.
The defendant said that "he had changed his mind, that he wished to give his side of the story." This case is controlled by Commonwealth v. LeClair, 445 Mass. 734 (2006), where the court reiterated the teaching of Oregon v. Bradshaw, 462 U.S. 1039, 1045-1046 (1983), "that a defendant, after invoking his right to counsel, may 'initiate' further conversation with the police and that if the defendant has done so, the police may properly interrogate him without violating the Edwards rule." Commonwealth v. LeClair, 445 Mass. at 739.
We have deemed a sudden oral revelation of infidelity inflammatory information sufficient to constitute such provocation. See, e.g., Commonwealth v. LeClair, 445 Mass. 734, 741-743, 840 N.E.2d 510 (2006) ; Schnopps, 383 Mass. at 180-182, 417 N.E.2d 1213. Contrast Commonwealth v. Gulla, 476 Mass. 743, 748-749, 73 N.E.3d 240 (2017) (defendant's prior knowledge of infidelity precluded claim of sudden discovery).
"[I]t is well established that the provocation must ‘come from the victim’ and [crucially, in the instant case] be directed at the defendant." Yat Fung Ng, 489 Mass. at 258, 182 N.E.3d 287, quoting Commonwealth v. LeClair, 445 Mass. 734, 741-743, 840 N.E.2d 510 (2006). We have held, for example, that there can be no reasonable provocation as a matter of law where "[n]o threatening action was directed toward the defendant," and "[a]t most, [the defendant] witnessed a casual acquaintance being punched before [the defendant] joined in and fired."
Our cases appear to have adopted something akin to the initiation standard articulated in the plurality opinion. In Commonwealth v. LeClair, 445 Mass. 734, 739, 840 N.E.2d 510 (2006), we declared, “In the area of Edwards issues, we closely follow Federal law.” We then agreed with the Appeals Court decision that concluded that the defendant had initiated a post-invocation communication, id., where “the defendant's subsequent statement to [a police officer] that he thought he was in a lot of trouble, and his twice repeated inquiry whether he needed counsel, evinced a desire for more generalized conversation at least sufficient to permit further inquiry about whether the defendant continued to stand by his earlier invocation of his right to counsel.”
Model Jury Instructions on Homicide 32, 34 (1999). See Commonwealth v. Rodriquez, 461 Mass. 100, 107 (2011), quoting Commonwealth v. LeClair, 445 Mass. 734, 740 (2006) ("A verdict of manslaughter 'depends on evidence, not always necessarily present in murder, [that will, if sufficient,] mitigate, but not excuse, an unlawful killing' "). The second element of murder in the second degree, malice, "can be established by proving any of three facts, or 'prongs': (1) the defendant intended to cause the victim's death; (2) the defendant intended to cause grievous bodily harm to the victim; or (3) the defendant committed an intentional act which, in the circumstances known to the defendant, a reasonable person would have understood created a plain and strong likelihood of death."