Commonwealth v. Gonzalez ( 2014 )

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SJC-11428
COMMONWEALTH vs. MARIO GONZALEZ.
Suffolk. April 11, 2014. - August 19, 2014.
Present: Ireland, C.J., Spina, Gants, Duffly, & Lenk, JJ. 1
Homicide. Evidence, Admissions and confessions, Voluntariness
of statement, Dying declaration, Prior misconduct,
Intoxication, Intent. Practice, Criminal, Capital case,
Admissions and confessions, Voluntariness of statement,
Instructions to jury. Intoxication. Mental Impairment.
Intent.
Indictment found and returned in the Superior Court
Department on March 19, 2009.
A pretrial motion to suppress evidence was heard by Charles
J. Hely, J., and the case was tried before Geraldine S. Hines,
J.
David Keighley for the defendant.
Helle Sachse, Assistant District Attorney, for the
Commonwealth.
GANTS, J. In the early morning hours of February 15, 2009,
the defendant stabbed his girl friend multiple times shortly
after they returned to his apartment from a local bar. The
1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
2
victim died of her wounds later that morning. A Superior Court
jury convicted the defendant of murder in the first degree on a
theory of extreme atrocity or cruelty, in violation of G. L. c.
265, § 1. 2 On appeal, the defendant claims that: (1) the
statements the defendant made from his holding cell in response
to police questioning should have been suppressed because he had
earlier invoked his right to silence; (2) the admission in
evidence of the defendant's invocation of his right to silence
created a substantial likelihood of a miscarriage of justice;
(3) the trial judge erred in admitting statements made by the
victim as dying declarations; (4) the judge erred in admitting
certain testimony regarding the defendant's prior bad acts; and
(5) the absence of an instruction to the jury that they may
consider the defendant's consumption of alcohol in determining
whether the defendant acted in a cruel or atrocious manner in
causing the victim's death created a substantial likelihood of a
miscarriage of justice. The defendant also requests that we
exercise our authority under G. L. c. 278, § 33E, to reduce the
conviction to a lesser included offense. We reject the
defendant's first four claims, but agree with the fifth. We
therefore reverse the defendant's conviction of murder in the
first degree and remand the case to the Superior Court to allow
2
The jury did not find the defendant guilty of murder in
the first degree on the theory of deliberate premeditation.
3
the Commonwealth to choose between entry of a verdict of murder
in the second degree or retrial of the defendant on the charge
of murder in the first degree.
Background. We summarize the evidence at trial, but
reserve certain details for our discussion of the defendant's
claims of error.
The defendant and the victim had been dating for
approximately six months before the killing. The victim had
asked the defendant to stop drinking, and on one occasion, the
victim refused to go home with the defendant because he was
intoxicated. The couple spent the evening of February 14, 2009,
at a local bar, celebrating Valentine's Day in the company of
the victim's mother. During the course of the evening, the
victim had a few drinks and the defendant drank steadily. When
they left the bar and entered a taxicab at approximately 1 A.M.,
both the defendant and the victim were intoxicated. The
victim's mother was dropped off at her son's house, and the
taxicab then drove the defendant and the victim to the
defendant's apartment in the Dorchester section of Boston. At
approximately 2:30 A.M., the victim telephoned her mother to
make sure she arrived home safely.
At 3:15 A.M., the defendant telephoned 911, and reported,
in Spanish, that someone had entered his apartment and stabbed
4
his wife. 3 The defendant told the 911 operator that he did not
know who had entered his home, and explained, "I came a while
ago, and my wife left the door open for him and someone entered
and I don't know what happened, but . . . she's letting out a
lot of blood."
Police and emergency medical technicians arrived at the
apartment house within a few minutes, and the defendant brought
them to a bedroom in the third-floor apartment. The victim was
lying on a bed, bleeding heavily from stab wounds. There was
blood on the pillows and the doorknob, and blood spatter stains
on the walls, but no blood on the floor; a wet mop was
discovered behind the door of the defendant's bedroom, and the
floor was wet underneath the bed where the victim lay bleeding.
Boston police Officer James O'Brien several times asked the
victim who had stabbed her, and each time she replied, "I don't
want to die." Upon removing the victim's clothing, emergency
medical technician Emilie Howard discovered that she had
suffered six stab wounds to her left shoulder, one to her right
shoulder, and one to her left chest just below the breast. The
victim had no palpable blood pressure and was "close to dying."
In response to Howard's question about the length of the knife
3
The victim and the defendant were not married, but
they referred to each other as husband and wife.
5
used in the attack, the victim implored, "Please don't let me
die," four times.
Because he spoke only Spanish and the responding officers
spoke only English, the defendant was unable to communicate with
the officers who first arrived at the scene. While the
emergency medical technicians prepared to transport the victim
to the hospital, the defendant was pat frisked; no weapons were
found on his person. Shortly thereafter, Officer Omar Cepeda, a
fluent Spanish speaker, arrived and spoke with the defendant in
Spanish. Officer Cepeda noted that the defendant had "red,
glassy eyes" and smelled of alcohol, and that the defendant had
fresh wounds to his nose and lip. In response to Officer
Cepeda's inquiry, the defendant stated that he had arrived home
from drinking at a local bar to find the front door of the
apartment open and the victim lying on the bed in a pool of
blood. According to the defendant, the victim told him that an
unknown person had entered the apartment, demanded money,
stabbed her, and fled. In response to Officer Cepeda's question
about the cut on his nose, the defendant stated that he had
received it about three days ago in a fight. Officer Cepeda
told Sergeant Daniel Tracey about the defendant's statements,
and Tracey told Cepeda to give the defendant the Miranda
warnings. Cepeda recited the warnings to the defendant in
Spanish; the defendant said that he understood and had "nothing
6
to hide." Thereafter, in response to Cepeda's renewed inquiry
about the injury on his nose, the defendant repeated it was from
a fight two to three days previously. The defendant, when asked
whether the victim had described her assailant, said that he
could not get a description from her. Cepeda informed the
defendant that the victim was still alive, and asked, "Do you
want to tell me what happened here?" The defendant replied,
"No."
Meanwhile, paramedics Sean Murphy and Michael Sullivan
accompanied the victim in the ambulance to the hospital. They
noted that the victim was pale, had no blood pressure, and had a
life-threatening wound. As Murphy prepared to insert an
intravenous (IV) tube, the victim pulled away and looked scared.
Murphy explained to the victim that she was very sick, whereupon
the victim allowed him to start the IV. Following instructions,
the victim squeezed Murphy's hand to indicate that she
understood what he was saying. Thereafter, Murphy asked the
victim if her husband did this to her. The victim answered,
"Yes." Sullivan also asked the victim, "Your husband did this?"
and the victim answered, "Yes, my husband." The victim arrived
at the hospital at approximately 3:30 A.M. 4
4
The victim succumbed to her injuries at 7:54 A.M. The
cause of death was multiple stab wounds to the torso.
7
On arrival at the hospital, the paramedics told police what
they had learned in the ambulance. This information was
communicated to Sergeant Tracey, who, while the defendant was
speaking with Officer Cepeda, ordered the defendant's arrest.
When the defendant arrived at the police station, Cepeda
brought the defendant to a holding cell and told him that he
(Cepeda) would be across the hall if the defendant needed
anything. As Cepeda started to walk away, the defendant said,
"I was the one that got hit with a beer bottle in the face."
Cepeda turned around and asked him what really happened. The
defendant then stated that he had come home from the bar and
gotten into an argument with the victim about his drinking. The
defendant said that the argument escalated, she hit him with a
beer bottle in the face, pulled out a black, folding knife, and
charged at him. The defendant stated that he was able to twist
the knife away from the victim, and then stabbed her in the back
several times. As the victim ran towards the front door, the
defendant followed and said, "I'm sorry, I don't know what
happened. I don't know why I did this." The defendant then
helped the victim into bed, and telephoned 911. Officer Cepeda
asked the defendant about the location of the knife. The
defendant first responded that it might be in the hallway, then
said that it might have been thrown out the bedroom window, and
8
later said that it might be in another room in the apartment. 5
At approximately 9 A.M., the defendant called his roommate from
the telephone by the booking desk of the station. The defendant
left a message on his roommate's voicemail, in which he said he
had been drinking and "had problems with the Puerto Rican woman"
and stabbed her.
Discussion. 1. Suppression of defendant's statements made
from the holding cell. Before trial, the defendant moved to
suppress all statements he made to the police. In the affidavit
accompanying the motion, the defendant stated that Cepeda "did
not speak Spanish, as I know it, very well," and that, as a
result, the defendant did not understand what Cepeda said, and
vice-versa. He claimed, "Because of my inability to understand,
no statement made by me at the police station was voluntary."
He did not assert that he ever invoked his right to silence.
After an evidentiary hearing, the motion judge, who was not
the trial judge, found that "[t]he defendant spoke freely and
coherently with Officer Cepeda in Spanish" and that "[t]he
defendant had no trouble in understanding Officer Cepeda or in
expressing himself to the officer in Spanish." The judge denied
the motion to suppress, finding beyond a reasonable doubt that
all of the defendant's statements were voluntary and that the
5
The police recovered three knives from the premises and
one from the sidewalk in front of the apartment, but none
contained evidence of blood.
9
defendant made a knowing, intelligent, and voluntary waiver of
his Miranda rights. The motion judge did not address the claim
that the defendant makes on appeal -- that the defendant invoked
his right to silence after being given the Miranda warnings at
the apartment -- because no such claim was made at the time of
the motion and there was no evidence to support such a claim. 6
But Officer Cepeda's testimony at trial regarding what the
defendant had said at the apartment after he waived his Miranda
rights differed from his testimony at the motion hearing. At
the motion hearing, Cepeda testified that, after he told the
defendant that the victim was still alive, "I asked him again
what happened in the apartment, if anything else happened in the
apartment." Cepeda stated that the defendant replied, "No,
nothing else happened." At trial, however, Cepeda testified as
follows:
The prosecutor: "Did you . . . tell him at that point
anything about [the victim's] condition?"
The witness: "Yes, I did."
The prosecutor: "What did you say to him?"
The witness: "I told him she's still alive. Do you want
to tell me what happened here?"
The prosecutor: "Did he say anything else?"
6
The Commonwealth agreed not to admit in evidence a
statement that the defendant made to the police after his
holding cell discussion with Officer Cepeda, conceding that it
had been obtained in violation of Commonwealth v. Rosario, 422
Mass. 48, 56 (1996).
10
The witness: "He said no."
The defendant contends that Officer Cepeda's testimony at
trial demonstrates that he invoked his right to remain silent by
answering, "No," to the officer's question. The defendant,
however, did not object to the question or move to strike the
answer. Nor did he ask the trial judge to revisit the denial of
the motion to suppress in view of this answer. As a result, the
issue before us is not whether the motion judge erred in denying
the motion to suppress or whether the trial judge erred in not
revisiting the denial. "[I]n reviewing a judge's ruling on a
motion to suppress, an appellate court 'may not rely on the
facts as developed at trial' even where the testimony differed
materially from that given at trial." Commonwealth v. Deramo,
436 Mass. 40, 43 (2002), quoting Commonwealth v. Grandison, 433
Mass. 135, 137 (2001). Rather, the issue before us is whether,
as part of our plenary review of capital cases under G. L.
c. 278, § 33E, the failure to recognize the defendant's
invocation of his right to silence created a substantial
likelihood of a miscarriage of justice.
We consider first whether a substantial likelihood of a
miscarriage of justice arose from the admission of evidence at
trial that should have been suppressed had the defendant invoked
his right to silence. The defendant made no further statement
11
at the apartment following his purported invocation, and the
defendant concedes that his volunteered statement to Officer
Cepeda from the holding cell that he was "the one that got hit
with a beer bottle in the face" was admissible. See, e.g.,
Miranda v. Arizona, 384 U.S. 436, 478 (1966) ("Volunteered
statements of any kind are not barred by the Fifth Amendment [to
the United States Consitution]"). Therefore, the only
statements at issue are those made by the defendant from his
holding cell after Cepeda asked him what really happened.
Had the defendant raised this claim with the trial judge
and asked her to revisit the denial of the motion to suppress,
the judge could have conducted a new evidentiary hearing,
explored with Cepeda whether his testimony was more accurate at
the motion hearing or at trial regarding what he asked the
defendant and what the defendant said in response, and made
findings of fact based on her evaluation of Cepeda's credibility
as to what actually was said, which we would accept unless
clearly erroneous. See Commonwealth v. Scott, 440 Mass. 642,
646 (2004). Without the benefit of such findings, we must
determine whether the appeal can be resolved without remanding
the case for such findings. We conclude that no remand is
necessary because, even if the defendant were to prevail on
remand as to every factual dispute and we were to conclude that
all the defendant's statements from the holding cell made after
12
Cepeda asked him what really happened should have been
suppressed, the admission in evidence of those statements did
not so materially strengthen the Commonwealth's case as to
create a substantial likelihood of a miscarriage of justice.
If these statements were not admitted, the jury would have
been left with evidence that the defendant's girl friend was
found on a bed in his apartment with multiple stab wounds; that
the defendant had fresh wounds on his nose and lip that he
reported he had suffered from a fight two or three days earlier;
that he told the police that he came back from a bar to find the
door open and the victim lying on a bed in a pool of blood even
though there was compelling evidence that he had just returned
from a bar with her; that he denied knowing anything about her
stabbing but told his roommate in a recorded voicemail that he
had stabbed the victim and told Cepeda that the victim had hit
him with a beer bottle; and that the victim, in the ambulance to
the hospital where she soon died, identified the defendant as
the person who had stabbed her. Based on this evidence alone,
there could be no reasonable doubt that the defendant stabbed
the victim and lied about it to the police.
The statements that the defendant claims should have been
suppressed provided his most favorable version of events: an
escalating argument about drinking, culminating in an assault by
the victim, first with a beer bottle and then with a folding
13
knife, which the defendant wrested from the victim and used to
stab her multiple times before apologizing and helping her into
bed and calling 911. It was this narrative that, if credited,
permitted him to claim that he acted in self-defense or, if that
fell short, that he should be convicted only of manslaughter
because the killing was mitigated by reasonable provocation,
heat of passion in sudden combat, or the excessive use of force
in self-defense. 7 In short, the admission of this evidence, if
credited, gave him his best chance at an acquittal or a lesser
verdict. Under these circumstances, the admission of this
evidence did not create a substantial likelihood of a
miscarriage of justice because we are substantially confident
that, had this evidence been suppressed, the jury verdict would
have been the same. Commonwealth v. Ruddock, 428 Mass. 288, 292
n.3 (1998).
2. Admission in evidence of defendant's purported
invocation of silence. The defendant also contends that the
admission in evidence of Cepeda's answer to the prosecutor's
question, "Did [the defendant] say anything else?" compromised
7
Defense counsel in his opening statement claimed that the
Commonwealth would be unable to prove that the defendant had not
acted in self-defense. In closing argument, defense counsel
stated, "If, in fact, it occurred as the defendant subsequently
told the police, that is, as a result of this physical
altercation, if you accept that version, then, while he is
responsible, it would not be murder, but it would be . . .
manslaughter."
14
the defendant's constitutional right to silence. We recognize
that "Miranda warnings contain an 'implicit assurance that a
defendant's silence after such warnings will carry no penalty,'
and due process requires that, when in the hands of the police,
a defendant must be able to 'invoke core constitutional rights
without fear of making implied or adoptive admissions.'"
Commonwealth v. Beneche, 458 Mass. 61, 73 (2010), quoting
Commonwealth v. Peixoto, 430 Mass. 654, 657, 658-659 (2000).
See, e.g., Doyle v. Ohio, 426 U.S. 610, 618 (1976). Where there
was no objection to the question, and no motion to strike the
answer, we consider whether the error, if any, created a
substantial likelihood of miscarriage of justice. Beneche,
supra at 76. We conclude that, even if the admission of this
evidence were error, it did not create a substantial likelihood
of a miscarriage of justice in this case.
Although we recognize the risk that the jury may have made
an adverse inference that the defendant did not want to tell the
officer what really happened because he had committed the
stabbing, we are confident that this adverse inference would
have added little to the overwhelming weight of the evidence of
the defendant's guilt. The prosecutor in closing argument
referred to this testimony, but suggested that it showed the
defendant's lack of empathy for the victim, not his fear of the
15
consequences of telling the truth. 8 This inference was supported
more strongly by other testimony, including his demeanor during
the recorded phone call to his roommate and his characterization
of the victim as "the Puerto Rican." Therefore, we are
substantially confident that, if this testimony had never been
heard by the jury, their verdict would have been the same. See
id. at 75-76 (although defendant's statement, "I don't want to
talk about it," "should not have reached the jury, and the
prosecutor should not have mentioned it in the closing argument,
. . . [it] did not cause a substantial likelihood of a
miscarriage of justice").
3. Dying declaration. The defendant argues that the judge
erred by permitting paramedic Sean Murphy to testify, over the
defendant's objection, that the victim, while being transported
to the hospital, asserted that her "husband" "did this to
[her]." We conclude that the victim's statements were properly
admitted as dying declarations.
"[A] victim's out-of-court statement may qualify as a dying
declaration if the 'statement [is] made . . . under the belief
of imminent death and [the declarant] died shortly after making
the statement, concerning the cause or circumstances of what the
8
The prosecutor in closing argument said: "Officer Cepeda
says to him, after [the victim] was taken away but before they
made any decision to arrest him: 'She's still alive. Is there
anything else you want to tell me?' 'No.' Not good, what
hospital is she going to, but no."
16
declarant believed to be the declarant's own impending death or
that of a co-victim.'" Commonwealth v. Middlemiss, 465 Mass.
627, 632 (2013), quoting Mass. G. Evid. § 804 (b) (2) (2013). 9
The victim's belief in her impending death may be inferred from
the character of the injury. Commonwealth v. Key, 381 Mass. 19,
25 (1980). The judge, and then the jury, must both determine
whether the requirements for admission have been met by a
preponderance of the evidence. Commonwealth v. Nesbitt, 452
Mass. 236, 251 n.16 (2008), quoting Key, 381 Mass. at 22. 10
The evidence was more than sufficient to support the
judge's finding that the victim's statements met this
evidentiary standard. When the victim made the statements, she
had been stabbed eight times, and four of her wounds were
independently life threatening. The wounds penetrated the
victim's lung and spleen, causing profuse bleeding and affecting
9
The admission of a dying declaration does not implicate
the defendant's constitutional right to confrontation.
Commonwealth v. Nesbitt, 452 Mass. 236, 249-251 (2008), quoting
Crawford v. Washington, 541 U.S. 36, 56 n.6 (2004). The
constitutional right "is most naturally read as a reference to
the right of confrontation at common law," Crawford, supra at
54, and the dying declaration was recognized at common law as an
exception to the right of confrontation when the Sixth Amendment
to the United States Constitution was adopted. Id. at 56 & n.6.
See Nesbitt, supra at 250.
10
The judge in this case instructed the jury that they
could consider this evidence only if they were to find that the
statements met the requirements for dying declarations by a
preponderance of the evidence.
17
her breathing. 11 The victim was pale and distraught, and
seemingly in pain. At the apartment, the victim pleaded, "I
don't want to die," and, "Please don't let me die," which she
repeated multiple times. In the ambulance, the paramedics noted
that the victim had no palpable blood pressure. In persuading
her to allow the insertion of an IV, a paramedic informed her
that she was "very sick." She made the declarations regarding
who "did this to [her]" in the ambulance, and died less than
five hours later. See Middlemiss, supra at 632; Nesbitt, supra
at 252.
The defendant acknowledges that the admission of the
victim's statements is consistent with the standard articulated
in our decisions in Middlemiss, 465 Mass. at 631-632 and
Nesbitt, 452 Mass. at 251-252, but urges us to adhere to the
stricter requirements of older cases, where we held that a dying
declaration was not admissible "unless all hope of recovery has
gone from the mind of the declarant, and [s]he speaks under a
sense of impending death." Commonwealth v. Polian, 288 Mass.
494, 497 (1934), and cases cited. We decline to adopt the
defendant's proposed test. The current standard appropriately
ensures that admission of the dying declaration is necessary
(because it requires that the declarant has died) and that the
11
The medical examiner testified that, by the time of her
death, the victim had lost approximately 1.2 liters of blood.
18
statement is trustworthy (because it requires that the declarant
fear that death is imminent). See, e.g., M.S. Brodin & M.
Avery, Massachusetts Evidence § 8.4.1 at 491 (8th ed. 2007).
The judge did not err in admitting the victim's statements as
dying declarations.
4. Prior bad acts. At trial, the Commonwealth elicited
evidence of prior bad acts from two witnesses. First, the
victim's mother testified that she twice heard the victim tell
the defendant to stop drinking, and that, a few days before the
victim was killed, she saw the defendant pull the victim's arm
after she told him that he should leave before he got drunk.
After defense counsel objected to the testimony, the judge
instructed the jury that the evidence was admitted for the sole
purpose of establishing the defendant's state of mind and the
relationship between the defendant and the victim. In addition,
the taxicab driver, who had driven the defendant and the victim
on multiple occasions, testified over objection that, a few
months before her death, the victim said that she was expecting
a baby and would take it to Puerto Rico if the defendant did not
"do right." 12
The defendant argues that this evidence was too remote to
rationally prove any issue at trial, and unduly prejudicial to
12
The taxicab driver later told the defendant that the
victim's threat was not serious, and she had said it just to
worry him. The victim's autopsy revealed no signs of a pregnancy.
19
the defendant. "While evidence of the defendant's prior bad
acts is not admissible to show bad character or propensity to
commit a crime, . . . such evidence is admissible if relevant to
show the defendant's motive, intent, or state of mind."
(Citations omitted.) Beneche, 458 Mass. at 80. "To be
sufficiently probative the evidence must be connected with the
facts of the case [and] not be too remote in time."
Commonwealth v. Butler, 445 Mass. 568, 574 (2005), quoting
Commonwealth v. Barrett, 418 Mass. 788, 794 (1994). The judge
also must find that the probative value of the evidence in
question outweighs undue prejudice to the defendant. Butler,
supra, quoting Barrett, supra. We uphold a judge's decision to
admit prior bad acts absent an abuse of discretion.
Commonwealth v. Sharpe, 454 Mass. 135, 143 (2009), citing
Commonwealth v. Valentin, 420 Mass. 263, 270 (1995).
The evidence reflecting the victim's prior dissatisfaction
with the defendant's drinking illustrated the nature of their
relationship and suggested a motive for the killing: conflict
about his excessive drinking. See Commonwealth v. Bradshaw, 385
Mass. 244, 269-270 (1982) ("prosecution [is] entitled to present
as full a picture as possible of the events surrounding the
incident itself" lest murder appear "as an essentially
inexplicable act of violence"). Where the evidence was
20
accompanied by the judge's limiting instruction, we find no
error in its admission.
We do not, however, see the relevance of the victim's
musing about returning to Puerto Rico if she had a baby and the
defendant did not "do right," where there was no evidence that
the victim was pregnant when she was killed or that there was
discussion on the night of the killing about the possibility of
her return to Puerto Rico. But we also see no risk of prejudice
to the defendant arising from its admission, where it was not
clear what the victim meant by "do right," and where there was
no suggestion that the defendant had abused the victim or wished
to shirk his obligations if he were to father a child with the
victim. If it were error to admit this testimony, it was not
prejudicial error.
5. Jury instructions regarding intoxication. At the close
of the evidence, the judge instructed the jury on the elements
of murder in the first degree on the theories of deliberate
premeditation and extreme atrocity or cruelty, as well as the
lesser included offenses of murder in the second degree and
manslaughter. The judge gave the following instruction on
intoxication after explaining murder in the first degree and its
lesser included offenses: "In determining whether the
Commonwealth has proved beyond a reasonable doubt the
defendant's intent to commit the offenses I have just defined
21
for you, you should consider all credible evidence relevant to
the defendant's intent, including any credible evidence of the
effect of drug or alcohol impairment on the defendant." The
judge did not instruct the jury that they could consider any
credible evidence of the defendant's consumption of alcohol in
determining whether the defendant committed the killing with
extreme atrocity or cruelty, an instruction that in substance is
required where there is evidence that the defendant was under
the influence of alcohol at the time of the killing. See
Commonwealth v. Rutkowski, 459 Mass. 794, 798 (2011) ("It should
have been made clear to the jury that they could consider
evidence of mental impairment on the specific question whether
the murder was committed with extreme atrocity or cruelty");
Commonwealth v. Perry, 385 Mass. 639, 648-649 (1982) (jury must
be instructed that they may consider defendant's intoxication in
determining whether killing was committed with extreme atrocity
or cruelty). See also Model Jury Instructions on Homicide 61-62
(1999) & 49 (rev. 2013). The defendant did not request such an
instruction or object to its absence. Where the only theory of
murder in the first degree on which the jury found the defendant
guilty was extreme atrocity or cruelty, the defendant on appeal
argues that the absence of such an instruction was error that
created a substantial likelihood of a miscarriage of justice.
22
The absence of such an instruction was error. See
Rutkowski, 459 Mass. at 797-799; Commonwealth v. McDermott, 393
Mass. 451, 457-459 (1984). There was sufficient evidence of the
defendant's intoxication at the time of the killing to warrant
the instruction, and the instruction that was given regarding
alcohol impairment was limited to consideration of the
defendant's intent. "Intent and knowledge are not aspects of
extreme atrocity or cruelty." Rutkowski, supra at 797-798. 13
Therefore, the judge's instructions on intoxication would have
been understood by the jury to relate only to the elements of
premeditation and malice, and not to whether the defendant acted
with extreme atrocity or cruelty.
We turn now to whether the error in the jury instructions
created a substantial likelihood of a miscarriage of justice.
The Commonwealth contends that there was no substantial
likelihood because its theory of extreme atrocity or cruelty
focused on the number of stab wounds the defendant inflicted on
the victim and her degree of suffering, and these Cunneen
13
"The Commonwealth need not prove that the extreme
atrocity or cruelty was premeditated, . . . that the defendant
intended to inflict extraordinary pain, . . . or that she knew
that her acts were extremely atrocious or cruel" (citations
omitted). Commonwealth v. Rutkowski, 459 Mass. 794, 798 n.3
(2011).
23
factors would not be affected by the defendant's intoxication. 14
This overlooks the rationale for the jury instruction, which is
that "the jury should reflect the community's conscience in
determining what constitutes an extremely cruel or atrocious
killing." McDermott, 393 Mass. at 458. "In that role, the jury
must take a defendant's intoxication into account when
evaluating cruelty or atrocity aside from any issue of intent."
Id. at 458-459. See Perry, 385 Mass. at 649, quoting
Commonwealth v. Gould, 380 Mass. 672, 686 (1980) ("Consideration
of the defendant's impaired capacity as well as the character of
his acts is essential if the jury [is] to serve fully and fairly
as the community's conscience in separating extreme atrocity or
cruelty from that atrocity or cruelty inevitably included in the
destruction of any human life").
Here, there was strong evidence of the defendant's
intoxication at the time of the killing, and defense counsel in
closing argument told the jury that "the consumption of alcohol
that night could be key; it could be major." But the jury
instruction on intoxication "effectively removed what may have
14
The Cunneen factors are: the defendant's indifference to
or pleasure in the victim's suffering, the victim's
consciousness and degree of suffering, the extent of the
victim's physical injuries, the number of blows delivered by the
defendant, the manner and force with which the defendant
delivered the blows, the weapon or weapons used by the
defendant, and the disproportion between the means needed to
cause death and the means used by the defendant. Commonwealth
v. Cunneen, 389 Mass. 216, 227 (1983).
24
been [his] only viable defense to the question of extreme
atrocity or cruelty." Rutkowski, 459 Mass. at 799. Where the
jury did not find the defendant guilty on the theory of
deliberate premeditation, where the defendant was the first to
telephone 911 after the stabbing, and where there was no
evidence of a history of domestic abuse, we cannot say that "we
are substantially confident that, if the error had not been
made, the jury verdict would have been the same." Ruddock, 428
Mass. at 292 n.3. See Rutkowski, supra, citing Commonwealth v.
Wright, 411 Mass. 678, 682 (1992) ("[w]e cannot say that this
error did not likely influence the jury's verdict"). We,
therefore, vacate the verdict of murder in the first degree.
Because the error affected only the jury's finding regarding the
element of extreme atrocity or cruelty, and did not affect the
jury's finding regarding the elements of murder in the second
degree, the Commonwealth shall have the option of either
proceeding with a new trial on the murder indictment or
accepting a reduction of the verdict to murder in the second
degree.
6. Relief pursuant to G. L. c. 278, § 33E. We have
considered the entire record pursuant to our obligation under
G. L. c. 278, § 33E. With the exception of the jury
instruction, discussed above, there was no error that created a
substantial likelihood of a miscarriage of justice.
25
Conclusion. The defendant's conviction of murder in the
first degree on the theory of extreme atrocity and cruelty is
vacated. The Commonwealth shall have the option of either
proceeding with a new trial on the murder indictment or
accepting a reduction of the verdict to murder in the second
degree. Within fourteen days of the issuance of this opinion,
the Commonwealth shall inform this court whether it will move to
have the defendant sentenced on the lesser offense of murder in
the second degree or whether it will retry the defendant for
murder in the first degree. See Rutkowski, 459 Mass. at 800.
We will issue an appropriate rescript to the Superior Court
after the Commonwealth informs us of its decision.
So ordered.