NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-12235

COMMONWEALTH vs. GEORGE T. RHODES, JR.

Plymouth. May 15, 2019. - August 16, 2019.

Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, JJ.

Homicide. Practice, Criminal, Capital case, New trial, 

Assistance of counsel, Request for jury instructions.

Constitutional Law, Assistance of counsel.

Indictment found and returned in the Superior Court 

Department on December 12, 2014.

The case was tried before Richard J. Chin, J., and a motion 

for a new trial, filed on December 26, 2017, was heard by him.

Joseph M. Kenneally for the defendant.

Keara L. Kelley, Assistant District Attorney, for the 

Commonwealth.

LOWY, J. A jury convicted the defendant of murder in the 

first degree. In a motion for a new trial, the defendant argued 

that his trial counsel was constitutionally ineffective for 

failing to request a voluntary manslaughter jury instruction 

based on reasonable provocation stemming from the defendant's 
2

reaction to an injury to his penis that the victim inflicted 

during a sexual encounter. The motion was denied. We conclude 

that the motion judge abused his discretion in determining that 

trial counsel's decision to not request a voluntary manslaughter 

instruction was a reasonable tactical choice. Accordingly, we

vacate the jury's verdict and remand the matter to the Superior 

Court for a new trial consistent with this opinion.1

Background. Because we are called upon to determine 

whether an instruction on voluntary manslaughter was warranted, 

we recite the facts in the light most favorable to the 

defendant, reserving certain facts for later discussion. See 

Commonwealth v. Howard, 479 Mass. 52, 57 (2018).

On September 8, 2014, the victim left her home in Brockton 

after having an argument with her daughter. At approximately 9 

P.M., the victim met the defendant, whom she had not previously 

 

1 The defendant also argues that the prosecutor made three 

statements in her closing argument that were not supported by 

the evidence. Two statements suggested that the victim was 

aware of her impending death while she lay on the floor of the 

garage, and the third statement asserted that there was evidence 

that the defendant strangled the victim. None of these 

statements was objected to, and the defendant contends they 

created a substantial likelihood of a miscarriage of justice. 

Because we reverse the conviction on other grounds, we need not 

determine whether the prosecutor's statements were proper 

arguments "for a conviction based on the evidence and on 

inferences that may reasonably be drawn from the evidence." 

Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). We remind the 

Commonwealth, however, to be certain that all arguments raised 

at the defendant's new trial are squarely grounded in the 

evidence presented.
3

known. The pair spent the evening smoking marijuana and 

drinking together. Surveillance video captured them walking on 

Main Street between 10 and 11 P.M., at one point walking with 

their arms intertwined.

At 10:56 P.M., video appears to show the defendant and the 

victim entering a nearby garage bay where a local towing company 

stored many of its vehicles. Ten minutes later, surveillance 

shows the defendant leaving the garage bay alone, carrying a bag 

similar to the bag the victim was seen carrying earlier in that 

night. Shortly thereafter, a tow truck driver arrived at the 

garage, unaware that the victim lay on the floor injured. He 

backed the truck into the bay, running over the victim's body.2

At that time, the victim was still alive. She was taken to a 

hospital and pronounced dead at 11:57 P.M.

The jury heard testimony from both the doctor who examined 

the victim at the hospital and the doctor who performed her 

autopsy. When the victim arrived at the hospital, she was 

wearing only a shirt. She had no pulse. The emergency room 

doctor described the victim's numerous injuries, including head 

trauma and facial swelling, a broken pelvis, fluid in her 

abdomen, and an ankle injury. The victim had three star-shaped 

 

2 The truck caused injuries to the victim's legs and torso, 

whereas separate blunt force trauma caused the injuries to her 

head.
4

wounds to her head, evidence of a skull fracture, blood in her 

ear canals, and a swollen eye. Her head injuries were severe 

and, in the emergency room doctor's opinion, inconsistent with 

being struck by a tow truck. The medical examiner reiterated 

that the victim had several blunt force injuries to her head and 

face and severe internal injuries, which were caused by an 

incident separate from the incident that caused the head 

injuries.

An expert also testified for the defendant. All three 

experts agreed that the victim suffered at least three head 

injuries, and there was conflicting testimony whether the head 

injuries would have been fatal even had the victim not 

subsequently been hit by the tow truck. Only the defendant's 

expert opined that the victim's head injuries were not 

independently fatal. Bloody tracks from the truck's tires

indicated that the victim's head injuries had occurred before 

she was hit by the truck.

While the defendant was being booked at the police station, 

he showed police an injury that one officer described as a "dime 

size chunk taken out of the tip of his penis." A friend of the 

defendant's testified that the defendant told him that he had 

been drinking and smoking marijuana with a girl on the night the 

victim was killed, that "she was giving him a blow job and she 

bit his privates" and that "she bit him hard." The friend 
5

further stated that the defendant told him that the girl had 

blood in her mouth and passed out after she had bitten him.

Deoxyribonucleic acid (DNA) testing confirmed that the 

defendant's DNA matched blood samples found inside the victim's 

mouth and other blood stains inside the garage bay. The

defendant's saliva was found on the victim's vagina. Defense 

counsel argued in closing, among other things, that the jury 

would be warranted in finding that the victim bit the defendant 

during consensual sex and that "in his anger he . . . smashed 

her head into the ground."

After his conviction, the defendant filed a motion for a 

new trial, asserting that trial counsel's failure to request a

jury instruction on voluntary manslaughter on a theory of 

reasonable provocation constituted ineffective assistance of 

counsel. Trial counsel submitted an affidavit stating that his 

failure to request that instruction was an oversight and was not 

part of his trial strategy. The motion judge, who was also the 

trial judge, discredited that portion of the affidavit. In 

denying the motion for a new trial, the judge determined that a 

voluntary manslaughter instruction was not supported by the 

evidence and that defense counsel's failure to request that 

instruction was a reasonable tactical choice, as voluntary 

manslaughter would have conflicted with his defense that the tow
6

truck, and not the defendant, ultimately caused the victim's 

death.3

Discussion. Because the defendant was convicted of murder 

in the first degree, we consider his claim of ineffective 

assistance of counsel under G. L. c. 278, § 33E, to determine 

whether there was an error that created a substantial likelihood 

of a miscarriage of justice. This standard of review is more 

favorable to a defendant than the constitutional standard. 

Commonwealth v. Pena, 455 Mass. 1, 22 (2009). See Commonwealth

v. Glover, 459 Mass. 836, 842 (2011) (defining constitutional 

standard for ineffective assistance of counsel). "[T]he 

decision to allow or deny [a motion for new trial] rests within 

the sound discretion of the motion judge, and we give deference 

to the factual findings of that judge, particularly when he or 

she was also the trial judge." Commonwealth v. LaBrie, 473 

Mass. 754, 771 (2016), citing Commonwealth v. Pillai, 445 Mass. 

175, 185 (2005). Where, as here, a claim of ineffective 

assistance of counsel is based on a strategic decision, we must 

determine whether that decision was manifestly unreasonable such

that "lawyers of ordinary training and skill in the criminal 

 

3 At trial, defense counsel argued that the victim's head 

injuries were not the cause of her death. He sought an 

involuntary manslaughter instruction on the theory that the 

defendant was wanton and reckless in leaving the victim in the 

garage bay with a head injury, allowing her to be struck by the 

tow truck.
7

law" would not consider it competent. Commonwealth v. 

Kolenovic, 471 Mass. 664, 674 (2015), S.C., 478 Mass. 189

(2017), quoting Pillai, supra at 186-187.

a. Instruction on voluntary manslaughter. An instruction 

on voluntary manslaughter based on reasonable provocation is 

warranted where the evidence raises "a reasonable doubt 'that 

something happened which would have been likely to produce in an 

ordinary person such a state of passion, anger, fear, fright, or 

nervous excitement as would eclipse his capacity for reflection 

or restraint, and that what happened actually did produce such a 

state of mind in the defendant.'" Commonwealth v. Felix, 476 

Mass. 750, 756-757 (2017), quoting Commonwealth v. Walden, 380 

Mass. 724, 728 (1980).

"The evidence must be sufficient to create a reasonable 

doubt in the minds of a rational jury that a defendant's 

actions were both objectively and subjectively reasonable. 

That is, the jury must be able to infer that a reasonable 

person would have become sufficiently provoked and would 

not have 'cooled off' by the time of the homicide, and that 

in fact a defendant was provoked and did not cool off" 

(citation omitted).

Commonwealth v. Groome, 435 Mass. 201, 220 (2001). Physical 

contact initiated by the victim is not always sufficient to 

warrant a voluntary manslaughter instruction, see Felix, supra

at 757, but "even a single blow from the victim can constitute 

reasonable provocation." Commonwealth v. Acevedo, 446 Mass. 

435, 444 (2006). A victim's conduct must present a "threat of 
8

serious harm" to be considered reasonable provocation. 

Commonwealth v. Ruiz, 442 Mass. 826, 839 (2004).

We conclude that the facts of this case, when viewed in the 

light most favorable to the defendant, supported an instruction 

on voluntary manslaughter based on reasonable provocation. 

Here, the defendant was in the midst of a consensual sexual 

encounter when the victim bit his penis hard enough to remove a 

"dime size chunk" and drew enough blood that it was in the 

victim's mouth and elsewhere in the garage bay. Cf. 

Commonwealth v. Berry, 431 Mass. 326, 335 (2000) (voluntary 

manslaughter instruction warranted where victim struck defendant 

with beer bottle). We conclude that this event would "have 

roused 'in an ordinary person such a state of passion, anger, 

fear, fright, or nervous excitement as would eclipse his 

capacity for reflection or restraint'" and resulted in the 

defendant slamming the victim's head against the cement floor of

the garage. Commonwealth v. Burgess, 450 Mass. 422, 439 (2008), 

quoting Walden, 380 Mass. at 728 (1980).

This case is distinguishable from those in which we 

concluded that the defendant's actions were not the result of 

reasonable provocation. See Felix, 476 Mass. at 758 (no 

reasonable provocation where victim lunged at and punched 

defendant who had entered her bedroom uninvited and locked 

door); Commonwealth v. Parker, 402 Mass. 333, 344 (1988), S.C., 
9

412 Mass. 353 (1992) and 420 Mass. 242 (1995) (no reasonable 

provocation where elderly disabled victim punched defendant in 

face twice before defendant strangled him); Commonwealth v. 

Brown, 387 Mass. 220, 227 (1982) (no reasonable provocation 

where victim choked defendant by pulling neck of his shirt).

Further, we conclude that the defendant telling his friend 

that the victim had bitten him hard, and showing his injury to a 

police officer during booking, unprompted, was sufficient to 

allow the jury to infer that he was subjectively provoked. See 

Commonwealth v. Valentin, 474 Mass. 301, 311 (2016) ("jury must 

be able to infer from the evidence not only that a reasonable 

person would have been so provoked, but also that the defendant 

was in fact provoked and that he or she did not have sufficient 

time to cool off").4

b. Assistance of counsel. At trial, defense counsel 

argued causation, contending that (1) the defendant should be 

acquitted because the truck caused the victim's death, and (2) 

the jury should be instructed on involuntary manslaughter on the 

theory that the defendant was, at most, wanton and reckless for 

leaving the victim injured in the garage bay. Unlike the motion 

 

4 We note that if the jury were to determine that the victim 

was being sexually assaulted by the defendant at the time that 

she bit him, then the bite could not serve as mitigation for the 

defendant's response. Of course, victims of a sexual assault 

may defend themselves, and the perpetrator's response to such 

efforts does not constitute mitigation.
10

judge, we conclude that it was manifestly unreasonable for trial 

counsel not to also request an instruction on voluntary 

manslaughter.

In many circumstances, it is not manifestly unreasonable 

for a defendant to forgo a possible defense with an eye toward a 

possible acquittal or conviction of a lesser charge. There is 

nothing wrong with a defense strategy that follows the advice,

attributed to Andrew Carnegie, to "put all your eggs in one 

basket." See Glover, 459 Mass. at 843-844 (not manifestly 

unreasonable for defense counsel to proceed on one theory of 

voluntary manslaughter when each theory was supported by 

evidence).

Here, however, defense counsel's strategic decision

deprived the defendant of effective representation. The 

evidence viewed in the light most favorable to the defendant 

could have supported an involuntary manslaughter charge based on 

the defendant having caused the victim's head injuries and then 

leaving her unconscious on the garage floor where she was run 

over by the tow truck. A voluntary manslaughter instruction 

would not have conflicted with this theory where it also was 

premised on the defendant having struck the victim's head on the 

concrete floor. There was compelling evidence in the record --

two of three experts testified that the victim's head injuries 

would have led to her death, and there was no reasonable 
11

question that the defendant was the last person to see the 

victim before she was hit by the tow truck -- to support a 

finding that the defendant killed the victim. Such an

instruction merely would have suggested that, even if the victim 

was fatally injured by the defendant, the defendant's actions 

were the result of reasonable provocation, as a manifest and 

visceral reaction to his injury. Defense counsel erred when he 

did not ask for the instruction.

Defense counsel's error created a substantial likelihood of 

a miscarriage of justice, such that the "error was likely to 

have influenced the jury's conclusion." Commonwealth v. Alicea, 

464 Mass. 837, 845 (2013), quoting Commonwealth v. Wright, 411 

Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).

Here, the jury would have been justified in finding that 

the defendant's actions caused the victim's death, but that he 

had been reasonably provoked, where evidence on that point was 

strong. In closing argument, defense counsel even argued the 

facts that would have supported an instruction for voluntary 

manslaughter, stating the jury "would be well warranted in 

finding that after they engaged in sex, after [the defendant's] 

penis was bitten, in his anger he went over to [the victim] and 

smashed her head into the ground." Absent an instruction on 

voluntary manslaughter, the jury could not consider this wellargued possibility. Accordingly, we lack substantial confidence 
12

that the jury verdict would have been the same had the error not 

been made. See Commonwealth v. Alcide, 472 Mass. 150, 169

(2015); Commonwealth v. Sena, 429 Mass. 590, 595 (1999), S.C., 

441 Mass. 822 (2004).

Conclusion. Because defense counsel's failure to request a 

voluntary manslaughter instruction created a substantial 

likelihood of a miscarriage of justice, we vacate the 

defendant's conviction and remand the matter to the Superior 

Court for a new trial consistent with this opinion.

So ordered.