Commonwealth v. Benoit

Ireland, J.

(concurring). In Commonwealth v. Adjutant, 443 Mass. 649, 664 (2005), we held that a trial judge has discretion to admit evidence of “specific acts of prior violent conduct” that a victim allegedly initiated, where the defendant claims self-defense and the identity of the first aggressor is disputed. In this case, the court was asked to extend the Adjutant rule to situations where an instruction on voluntary manslaughter is appropriate, and the defendant is claiming that he acted in the heat of passion due to reasonable provocation or sudden combat. The court declines the defendant’s invitation, stating that there has been too little time to consider the impact of the Adjutant rule on self-defense cases. Ante at 228.1 write separately because I think that the court should have considered whether the Adjutant rule should be extended.

In his statement to police, the defendant claimed that the victim yelled, “You stupid niggers, I’m going to stab you,” and *230“skipped off his porch” and “came at” him and his friend. He also told police that he knew the victim to harbor racist attitudes. The defendant proffered evidence through affidavits of counsel, police reports, and witness statements that, approximately two hours before his altercation with the defendant, the victim, who was white, and two to three other companions were involved in an incident with another black male. The black male went to meet a young woman near a middle school. The victim, wearing a black hooded sweatshirt and black pants, ran at the black male yelling, “I’m going to kill you nigger.” The other men then came out of the bushes saying, “Get him.” The black male ran until he came to a house where a woman allowed him to telephone the police. In the meantime, the men caused extensive damage to the car the black male had been driving.1

It seems to me that, at a new trial, this incident would be relevant to the jury’s assessment of the credibility of the defendant’s claim that the victim came at him, threatened him, and used a racial slur. If the jury believe the defendant’s version of events, they could find him guilty of voluntary manslaughter (rather than murder in the second degree as the jury did here). Moreover, when the defense counsel emphasized the victim’s statement in closing argument, the absence of this evidence allowed the prosecutor to argue that the defendant was inventing the victim’s threatening and racially charged statement.

These circumstances persuade me that the court should have undertaken a full analysis of the merits of extending the Adjutant rule to this case, instead of dismissing it as premature.

Without addressing its admissibility, I note that, in her statement to police about this attack, one of the witnesses stated that, earlier in the evening the victim and two other men “were talking about being skin heads and how they hate niggers. They were saying that they kill people for each other, and that they got each other’s backs.”