Commonwealth v. Miranda ( 2023 )

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SJC-13225
COMMONWEALTH vs. LAZARO MIRANDA.
Suffolk. December 9, 2022. - June 26, 2023.
Present: Budd, C.J., Lowy, Cypher, Kafker, & Georges, JJ.
Homicide. Evidence, State of mind, Intoxication. Mental
Impairment. Intoxication. Practice, Criminal, Capital
case, Instructions to jury, State of mind, New trial,
Transcript of evidence, Record, Stipulation.
Indictment found and returned in the Superior Court
Department on February 12, 1998.
The case was tried before Charles T. Spurlock, J., and a
motion for a new trial, filed on July 30, 2012, was heard by
Jeffrey A. Locke, J.
Brian J. Kelly for the defendant.
Elisabeth Martino, Assistant District Attorney, for the
Commonwealth.
KAFKER, J. A jury found the defendant, Lazaro Miranda,
guilty of murder in the first degree on the theory of extreme
atrocity or cruelty for the death of twenty-seven year old Lisa
McLester (victim). She died from multiple chop wounds from a
2
machete. No dispute existed at trial as to the defendant's
actions causing the victim's death. At issue, however, was the
defendant's state of mind at the time of the murder. The
defendant appeals from his conviction and from the denial of his
motion for a new trial.
On direct appeal, the defendant argues that the trial judge
erred by not providing two instructions to the jury regarding
mitigating circumstances despite trial counsel's objections.
The trial judge did not instruct on sudden combat in his
voluntary manslaughter instruction, nor did he specifically
instruct on the defendant's mental impairment and intoxication
in his instruction on murder in the first degree under a theory
of extreme atrocity or cruelty. He did, however, provide a
general instruction on intoxication and mental impairment
negating knowledge or intent.
Appealing from the denial of the motion for a new trial,
the defendant argues that the judge who heard that motion
(motion judge) erred in not granting a new trial because the
defendant was unfairly prejudiced by the motion judge's reliance
on a stipulated summary of a missing trial transcript from the
day of trial that included the jury instructions. Finally, the
defendant asserts that he is entitled to a new trial or a
reduced conviction to either murder in the second degree or
voluntary manslaughter, pursuant to G. L. c. 278, § 33E.
3
We conclude that the trial judge did not err by omitting
the defendant's requested instructions on sudden combat, but
erred when he failed to instruct on the impact of mental
impairment and intoxication on whether the defendant acted in a
cruel or atrocious manner. This error created a substantial
likelihood of a miscarriage of justice. Commonwealth v. Denson,
489 Mass. 138, 144 (2022). See Commonwealth v. Rutkowski, 459
Mass. 794, 799 (2011). We therefore vacate the conviction of
murder in the first degree and remand for further proceedings in
which "the Commonwealth has the option of moving to have the
defendant sentenced on the lesser included offense of murder in
the second degree or of retrying the defendant for murder on the
theory of extreme atrocity or cruelty." Id. at 800.
1. Background. a. Facts. We summarize the facts that
the jury could have found at the defendant's trial, reserving
certain details for our discussion of the legal issues.
On the evening of December 29, 1997, Anna French was
reading the newspaper in her first-floor unit in an apartment
complex on Seaver Street in Boston. Between 7 P.M. and 7:15
P.M., she overheard two loud "thumps" coming from a bedroom in
the apartment above hers, where the victim lived with the
defendant and a four year old child. She heard male and female
voices, including a man yelling repeatedly, "Who are you
fucking?" She also heard the child crying.
4
Shortly thereafter, French heard the same voices in the
first-floor hallway outside her apartment. The man said, "I'm
going to kill you. Bitch, you're not dead yet? You're still
breathing?" French also heard a repeated "swoosh sound, like
something was swinging." She entered the hallway and saw the
defendant, whom she recognized as the man who lived in the
apartment above hers. Seeing French, the defendant said,
"Bitch, you'd better go back in the house before I kill you,
too," causing her to run back inside her apartment and lock her
door. She called 911 at 7:45 P.M. While she waited for police,
she heard someone "running on the stairs" and leaving the
building.
Boston police arrived at 7:48 P.M and found the victim
unresponsive at the base of the stairs on the first floor.
Blood had pooled in the foyer and at the stairwell and spattered
the walls and stairs. Emergency personnel transported the
victim to a local hospital, where she was pronounced dead,
having suffered multiple chop wounds to the head, resulting in
several skull fractures, as well as similar wounds to the upper
body. At the apartment complex, investigators recovered four
pieces of black plastic from the building's foyer and a sheathed
machete from behind a bedroom door in the victim's apartment.
Police did not detect within the apartment any evidence of
blood, a struggle, or the consumption of alcohol.
5
Later that evening, police composed a photographic array
that included the defendant's photograph. From that array,
French identified the defendant as "the man she saw in the
hallway of the apartment building" earlier in the evening, who
"lived upstairs with" the victim. Officers began searching for
the defendant at various addresses throughout Boston. At 12:20
A.M. on December 30, 1997, police apprehended the defendant, who
was walking down Edinboro Street, carrying a sheathed machete
with a broken handle. Officers recited to him the Miranda
rights both prior to putting him in the back of a police cruiser
and again after securing him in the vehicle.
At first, the defendant asked the officers, "Is she dead?"
Despite an admonishment not to talk, the defendant declared,
"[S]he shouldn't have been fucking around. I told her about
fucking around. I'm deadly." En route to Boston police
headquarters, the defendant continued to inquire, unprompted,
about the victim's physical condition. To the officers, the
defendant seemed calm and in good physical condition and did not
appear intoxicated or impaired.
After arriving at police headquarters, the defendant waived
his Miranda rights, and a homicide sergeant detective
interviewed him, first off tape and then tape recorded. During
the tape recorded interview, the defendant said that he was
suspicious that the victim had been unfaithful to him. Although
6
he denied arguing with the victim, when asked whether "she
ma[d]e a move for" a machete found in the bedroom, the defendant
responded, "Yes, she did." When asked "if he was in fear of his
life," he also replied in the affirmative. Nevertheless, the
defendant "refused to enter into any specificity surrounding the
number of times [the victim] was struck or specificity as to how
she obtained her injuries," but did "tak[e] responsibility for
what occurred" and told the detective that "he should have the
death penalty" for his actions. At no point did the
interviewing detective have the impression that the defendant
was under the influence of alcohol or other drugs, and he did
not appear intoxicated or impaired while at the police station.
The Boston police crime laboratory conducted forensic
testing on the machete confiscated from the defendant at the
time of his arrest. The machete and its sheath tested positive
for human blood. Forensic deoxyribonucleic acid (DNA) analysis
of the blood on the machete blade, and blood from the apartment
complex entryway, matched the victim's DNA profile.1 The pieces
of plastic recovered from the entryway of the apartment building
also matched the broken handle of the machete. Furthermore,
following an autopsy, the medical examiner determined that the
1 The director of the crime laboratory testified that the
odds of such a match occurring in randomly selected unrelated
individuals were between one in 5.9 million and one in 190
million.
7
victim's injuries were consistent with wounds made by a machete
and that "she died of multiple chop wounds to the head."
b. Procedural history. A grand jury indicted the
defendant on one count of murder in the first degree. Prior to
trial, the defendant filed a notice of an intent to rely on a
defense of a lack of criminal responsibility or diminished
capacity due to mental disease or defect. After a trial in
November of 2000, a jury convicted the defendant of murder in
the first degree on a theory of extreme atrocity or cruelty.
The judge sentenced the defendant to life in prison without the
possibility of parole, and the defendant timely appealed. His
appeal stalled for several years, however, pending the filing of
three days of trial court transcripts, one of which was never
recovered.
In response, in 2012, the defendant filed a motion for a
new trial or, in the alternative, for a hearing pursuant to
Commonwealth v. Harris, 376 Mass. 74 (1978), to address the
missing trial transcript for the appellate record. After
supervising the Harris reconstruction of the missing trial
transcript, and participating in an evidentiary hearing, the
parties were able to stipulate to facts recreating the substance
of the missing transcript, which included testimony from one of
the defendant's expert psychologist witnesses, the charge
conference, the closing arguments, the jury instructions, and
8
the verdict. Equipped with the reconstructed record, the motion
judge ultimately denied the defendant's motion for a new trial
in 2015.
The defendant's appeal from that denial was consolidated
with his direct appeal from his conviction. We requested
supplemental briefing to address the reconstruction of certain
jury instructions given at trial, particularly the general
instruction on intoxication and mental impairment.
2. Discussion. We review "a direct appeal from a
conviction of murder in the first degree along with an appeal
from the denial of a motion for a new trial" together under
G. L. c. 278, § 33E. Denson, 489 Mass. at 144. "In so doing,
we review 'preserved issues according to their constitutional or
common-law standard and any unraised, unpreserved, or unargued
errors, and other errors we discover after a comprehensive
review of the entire record, for a substantial likelihood of a
miscarriage of justice.'" Id., quoting Commonwealth v. Upton,
484 Mass. 155, 160 (2020).
The defendant argues that the trial judge committed
reversible error by failing to give the jury two instructions on
mitigating circumstances. He also argues that the motion judge
erred by denying his motion for a new trial and that he is
entitled to a new trial because he is prejudiced on direct
appeal by the reliance on a stipulated summary of a missing
9
trial transcript that encompasses the trial judge's errant jury
instructions. The defendant also asks this court to order a new
trial or reduce the verdict pursuant to G. L. c. 278, § 33E. We
address each issue in turn.
a. Jury instructions. Per the parties' stipulation to the
trial events of November 15, 2000, the trial judge instructed
the jury on murder in the first degree on the theories of
deliberate premeditation and extreme atrocity or cruelty, murder
in the second degree, voluntary manslaughter, and self-defense.2
The parties agree that the judge used the model jury
instructions in operation at the time of trial.3
The defendant argues that he is entitled to a new trial
because the trial judge erred by declining to instruct the jury
on voluntary manslaughter under a theory of sudden combat, and
on the combined effects of mental impairment from mental illness
and intoxication negating the intent or knowledge required for
murder in the first degree under a theory of extreme atrocity or
cruelty, which would have warranted a lesser conviction of
murder in the second degree.
2 The judge also specifically instructed on third prong
malice for murder in the first and second degrees, to which the
defendant objected but was overruled.
3 Model Jury Instructions on Homicide (1999).
10
i. Voluntary manslaughter arising from sudden combat. The
defendant asserts that he was entitled to a jury instruction on
sudden combat because, considering the facts in the light most
favorable to him, the victim reached for the machete in the
bedroom, causing the defendant to fear for his life, given that
"the victim had swung her machete at him on at least one prior
occasion and . . . cut him before." She then swung this machete
"at him a couple times, but did not touch him with it," before
the defendant grabbed the other machete and chased her
downstairs with it. After the confrontation that resulted in
her death, he immediately left the building. The defendant
requested, and then objected to the omission of, the sudden
combat instruction,4 and so we review for prejudicial error,
Commonwealth v. Gallett, 481 Mass. 662, 678 (2019), by
"inquir[ing] whether there is a reasonable possibility that the
error might have contributed to the jury's verdict" (citation
omitted), Commonwealth v. Odgren, 483 Mass. 41, 46 (2019).
"Voluntary manslaughter is an unlawful killing arising not
from malice, but from . . . sudden [heat of] passion induced by
reasonable provocation, sudden combat, or [the use of] excessive
force in self-defense" (emphasis added; quotation and citation
4 The defendant's objection to the sudden combat instruction
appears in the stipulation, which we accept as true, thereby
preserving the issue on appeal.
11
omitted). Commonwealth v. Richards, 485 Mass. 896, 918 (2020).
"In deciding whether an instruction is warranted regarding these
mitigating circumstances, the evidence must be viewed in the
light most favorable to the defendant." Id., citing
Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006). Here, the
trial judge instructed the jury on theories of reasonable
provocation and excessive force in self-defense but not on
sudden combat, which the defendant had requested.5 Having viewed
the evidence "in the light most favorable to the defendant,"
Richards, supra, we conclude that the trial judge did not err by
not giving the sudden combat instruction.
Consistent with more than one and one-half centuries of our
jurisprudence, sudden combat entails two persons "meet[ing], not
intending to quarrel, and angry words suddenly arise," leading
to "blows . . . on both sides, without much regard to who is the
assailant." Commonwealth v. Howard, 479 Mass. 52, 58 (2018),
5 In their briefs, the parties frequently conflate
reasonable provocation with sudden combat or merge the two into
one instruction ("reasonable provocation by sudden combat") when
they are two separate but related instructions, as we discuss
infra. "Reasonable provocation encompasses a wider range of
circumstances likely to cause an individual to lose self-control
in the heat of passion than does sudden combat. . . . Thus, it
is more accurate to view sudden combat as a form of reasonable
provocation." Commonwealth v. Howard, 479 Mass. 52, 58 (2018).
See Richards, 485 Mass. at 919-920 (concluding that trial judge
erred in not offering reasonable provocation instruction when
victim stabbed defendant in chest, and thus, not needing to
reach question whether sudden combat instruction was also
required).
12
quoting Commonwealth v. Webster, 5 Cush. 295, 308 (1850). The
victim making physical contact with the defendant is necessary,
but not sufficient, for a sudden combat instruction. Howard,
supra at 58-59 & n.7 (2018) (citing several cases). Even when
the victim attacks or "strike[s] a blow against the defendant,"
however, such contact is not always enough to warrant the
instruction. Id. at 58, quoting Commonwealth v. Espada, 450
Mass. 687, 697 (2008).
Regardless of the theory evoked, a voluntary "manslaughter
instruction is not warranted when the defendant 'cooled off' and
'regained a measure of self-control' before attacking the victim
(citation omitted)," Commonwealth v. Barbosa, 463 Mass. 116, 136
(2012), or where the defendant and victim are separated for a
few minutes following the provocation "and then the defendant
seeks out the victim (citation omitted)," id. at 136-137. Both
reasonable provocation and sudden combat instructions require
evidence that
"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" (quotation and citation
omitted).
Richards, 485 Mass. at 918 (reasonable provocation). Accord
Commonwealth v. Walden, 380 Mass. 724, 728 (1980) (sudden
combat).
13
First and foremost, the defendant admitted that the victim
struck no blow against him; he had no physical injuries
whatsoever. Cf. Howard, 479 Mass. at 58-59 & n.7. Secondly,
although the conflict began in the apartment, the defendant
chased the victim into the common hallway of the apartment
building and downstairs into the foyer, where she was killed,
leaving him ample time to regain a measure of self-control. See
Richards, 485 Mass. at 919; Barbosa, 463 Mass. at 136. Indeed,
the victim's machete was found sheathed behind a bedroom door.
We therefore discern no error in rejecting a sudden combat
instruction.
ii. Mental impairment and intoxication. Our evaluation of
the adequacy of the jury instructions on mental impairment and
the effects of the consumption of alcohol is complicated by the
missing transcript, which included testimony from one of the
defendant's key mental health experts, as well as the jury
instructions themselves. We have at our disposal the joint
stipulation of the parties; the proposed jury instructions
submitted by each party, with annotations, where trial counsel
"checked off" what the trial judge delivered and noted certain
omissions or objections; and transcripts from the 2015
evidentiary hearing and status conference at which appellate
counsel discussed transcript reconstruction efforts with the
14
motion judge. We have also requested, and have been provided,
supplemental briefing.
Based on this information, we know that the judge relied on
the 1999 model jury instructions, in effect at the time of the
defendant's 2000 trial, when he gave an instruction. We also
know that the trial judge properly instructed on lack of
criminal responsibility due to mental disease or defect.
Furthermore, in his instruction on murder in the first degree
under a theory of deliberate premeditation, he instructed as
follows:
"In determining whether the Commonwealth has proven beyond
a reasonable doubt that the defendant acted with deliberate
premeditation and that he specifically intended to kill
[the victim], you should consider all the credible evidence
relevant to deliberate premeditation and intent to kill,
including any credible evidence of the defendant's alleged
mental impairment on the day in question" (emphasis added).
There is also no dispute that the judge gave a "general
instruction on intoxication" as it relates to proof of knowledge
and intent.
What persists are two distinct issues: first, whether the
judge, when he gave a "general instruction on intoxication," as
framed in the stipulation, also instructed on mental impairment;
and second, whether the judge gave an instruction on mental
impairment and intoxication specific to murder in the first
degree under the theory of extreme atrocity or cruelty.
15
A. Supplemental instruction on mental impairment negating
knowledge and intent. The 1999 model jury instructions provide
for a supplemental instruction regarding mental impairment and
intoxication as it applies to proof of knowledge or intent.
"Whenever the Commonwealth must prove the defendant's
intention to do something, you should consider any credible
evidence of [mental impairment] [the effect on the
defendant of his consumption of (alcohol) (drugs) (alcohol
and other drugs)] in determining whether the Commonwealth
has met its burden of proof. Likewise, whenever the
Commonwealth must prove the defendant's knowledge of any
facts or circumstances, you should consider any credible
evidence of [mental impairment] [the effect on the
defendant of his consumption of (alcohol) (drugs) (alcohol
and other drugs)] in determining whether the Commonwealth
has met its burden of proof."
Model Jury Instructions on Homicide 61-62 (1999). Based on the
representations of the parties in their principal and
supplemental briefs, and the record before us, we conclude that
the trial judge properly gave the model instruction, employing
the language on "mental impairment" and "the effect on the
defendant of his consumption of alcohol."
Discussing the general intent instruction, the stipulation
notes:
"The judge did not use the specific language as noted in
defense counsel's motion for jury instructions,
specifically regarding the jury's consideration of any
credible evidence of mental impairment in conjunction with
his consumption of alcohol and/or drugs. Defense counsel
had requested said language and objected when said
instruction was not given."
16
Based on all this information, the Commonwealth contends
that the judge gave the model instruction, including referencing
both mental impairment and the consumption of alcohol, and only
declined to incorporate the defendant's specific language about
"mental impairment in conjunction with the consumption of
alcohol," which sought to add to the jury's consideration the
effects of the combination of impairment and intoxication.6 The
defendant, although less than clear, has not challenged this
interpretation, but instead focuses on the specific supplemental
instruction on extreme atrocity or cruelty, discussed infra.7 We
6 The defendant requested the following instruction as
paragraph fifty-four of his proposed jury instructions:
"Whenever the Commonwealth must prove the defendant's
intention to do something, you should consider any credible
evidence of mental impairment, the effect on the defendant
of his consumption of alcohol, drugs, or alcohol and other
drugs, as well as his mental impairment in conjunction with
the consumption of alcohol, drugs[,] or alcohol and drugs,
in determining whether the Commonwealth has met its burden
of proof. Likewise, whenever the Commonwealth must prove
the defendant's knowledge of any facts or circumstances,
you should consider any credible evidence of mental
impairment, the effect on the defendant of his consumption
of alcohol, drugs, or alcohol and other drugs in
determining whether the Commonwealth has met its burden of
proof." (Emphasis added.)
This paragraph was not checked off, indicating that it was not
given, and it includes a handwritten annotation about an
objection, which was denied, next to the second sentence of the
proposed instruction, which was underlined.
7 At oral argument, the defendant clarified his position on
asserting that the judge erred in failing to give a mental
17
conclude that the judge gave the general instruction, including
the language on mental impairment, and need not have given the
defendant's requested instruction regarding the combination of
mental impairment and intoxication, as the defendant did not
present evidence on such combined effects.
"A judge is not required to give jury instructions in the
exact manner requested by the defendant provided that the
requested instruction is adequately covered." Commonwealth v.
Walker, 466 Mass. 268, 284 (2013). Because the judge generally
gave the model instructions, and the issue of the defendant's
mental health was front and center at trial, we conclude that
the Commonwealth's reading is supported by the record in the
instant case. We also conclude that, because the expert
evidence primarily focused on the defendant's mental illness and
did not address the effects of alcohol on the defendant's mental
illness, as specifically requested by the defendant, the
supplemental instruction on mental impairment and intoxication
was sufficient as to general knowledge or intent.
"To be entitled to an instruction on mental impairment, a
defendant must, at a minimum, introduce evidence that such
impairment existed at the time of the conduct in question."
Commonwealth v. Santiago (No. 2), 485 Mass. 416, 426-427 (2020),
impairment and intoxication instruction to negate extreme
atrocity or cruelty.
18
citing Commonwealth v. Gould, 380 Mass. 672, 680-681 (1980). As
to evidence of mental impairment, the defendant presented
testimony from two expert witnesses: a clinical psychologist,
Dr. Stephanie Brody, who conducted four hours of cognitive and
personality testing on him several months prior to trial, but
more than two years after the murder; and a forensic
psychologist, Dr. Ronald Ebert, who examined the defendant on
five separate occasions between May of 1998 and June of 2000.
Regarding the defendant's cognitive functioning in April of
2000, Dr. Brody determined that he performed "at a borderline
level of intellectual ability," with "significant impairment
. . . in concentrating, highly concrete thought process, and
. . . significant psycho-motor slowing." She also thought that,
based on indications of disorganized thinking, he may be
suffering from major depression, but, regardless, his cognitive
abilities had been persistently below average on these metrics
that remained stable over time.
With regard to the defendant's personality profile, Dr.
Brody testified to evidence of "psychotic depression," marked by
"intense [dysphoria], mood shifts," as well as "problems with
concentration" and "managing and coping with intrusive
19
thoughts."8 She also noted that the defendant "ha[d] difficulty
controlling the experience of emotion," known as "eruption of
affect," during testing. Nevertheless, she noted that she had
"no knowledge . . . of how [the defendant] was functioning prior
to" her testing him in April of 2000, or thereafter. Dr. Brody
also presented no testimony regarding the effects of alcohol on
the defendant's mental illness. In fact, she testified that she
had "no personal knowledge as to whether the defendant abused
alcohol," including on the night of the victim's death.
It was Dr. Ebert's opinion that the defendant suffered from
major depression with psychotic features and that such illness
was present at the time of the murder. As recounted in the
stipulation, he determined that,
"[a]lthough [the defendant] has not offered significant
details of his mental state during the incident to his
examiner, his description (and that of others) of his
drinking and his depression in the time immediately
preceding the event raises significant question concerning
his capacity to conform his conduct to the requirements of
the law at the time of the incident due to the existence of
both a mental disease (depression) and a mental defect
(effects of alcoholism)" (emphases added).
8 The defendant's mother also testified that, prior to the
killing, the defendant had problems sleeping and was "hearing
things," and that he seemed "very depressed" to her.
20
The defendant also told Dr. Ebert that he had "been drinking
heavily during the day of the killing."9 Dr. Ebert concluded
that the defendant's "psychological state and his intoxication
very likely interfered with the normal functioning of his mind
at that time," including "that his ability to plan and
premeditate his actions would have been severely impaired at
that time."10
Viewed in the light most favorable to the defendant,
Richards, 485 Mass. at 918, this evidence described the
defendant as suffering from mental disease -- major depression
with psychotic features -- and mental defect -- effects of
alcoholism -- while also drinking alcohol on the night of the
killing but did not address how the defendant's purported
intoxication on that day would have affected his mental disease
or defect. As given by the trial judge, the model supplemental
instruction on mental impairment and intoxication as to general
knowledge or intent tracked the evidence. The jury were free to
9 In further support of the defendant's contention that he
was under the influence of alcohol at the time of the killing,
the defendant called his stepfather and mother as lay witnesses.
They testified that, at around the time of the murder, the
defendant drank alcohol routinely. His stepfather further
testified that, when he saw the defendant after the killing that
same night, the defendant's breath smelled of alcohol.
10Dr. Ebert believed that the defendant presented signs of
"organic damage secondary to substance abuse" supporting
"evidence of mental illness of psychotic proportions."
21
consider mental impairment or intoxication and were not
precluded from considering both. The trial judge was not,
however, required to instruct on the combined effect as there
was no expert testimony in this regard. We discern no error.
B. Mental impairment and intoxication affecting extreme
atrocity or cruelty. Per the stipulation, the trial judge
"instructed the jury on murder in the first degree on the
theories of deliberate premeditation and extreme atrocity or
cruelty," as well as murder in the second degree, using the
model instructions. Based on the Commonwealth's proposed
instructions for murder in the first degree, all of which were
checked off as having been given, and the parties'
representations in their briefs, the trial judge instructed on
mental impairment as to the defendant acting with deliberate
premeditation:
"In determining whether the Commonwealth has proven beyond
a reasonable doubt that the defendant acted with deliberate
premeditation and that he specifically intended to kill
[the victim], you should consider all the credible evidence
relevant to deliberate premeditation and intent to kill,
including any credible evidence of the defendant's alleged
mental impairment on the day in question" (emphasis added).
The supplemental instructions in effect in 1999 also included
similar language regarding "[Whether the defendant acted in a
cruel or atrocious manner in causing the death of the deceased]"
(emphasis added). Model Jury Instructions on Homicide 62
22
(1999). This instruction, we conclude, was not given, for the
reasons stated infra.
Paragraph fifty-five of the defendant's requested
instructions included the relevant language. Neither party
contends that the trial judge gave this supplemental instruction
regarding whether the defendant acted in a cruel or atrocious
manner, nor is there any indication, in the stipulation or
supplemental briefing, that the defendant objected to the
failure to give this instruction regarding murder in an
extremely cruel or atrocious manner.11
The defendant argues, in his principal and supplemental
briefs, that the trial judge committed a reversible error by not
instructing the jury on the defendant's alleged mental
impairment and intoxication to negate the intent or knowledge
required for a finding of murder in the first degree under a
theory of extreme atrocity or cruelty. In response to this
argument, the Commonwealth points only to the defendant's
11Where the stipulation discusses the defendant's
objections to the omission of jury instructions, the stipulation
cites to paragraphs fifty-four, which contains the defendant's
requested language on the combined effects of mental impairment
and alcohol, and fifty-six, which provides: "I reiterate,
whenever the Commonwealth must prove that the defendant intended
to do something, or had knowledge of certain facts or
circumstances, in order to prove the crime, you may consider any
credible evidence of mental impairment, the consumption of
alcohol, drugs or alcohol and drugs in determining whether the
Commonwealth has met its burden of proving the defendant's
intent or knowledge."
23
objection, as noted in the stipulation and annotations to his
proposed jury instructions, to the trial judge not instructing
using the language he requested on the combined effects of
mental impairment and intoxication, an issue we addressed supra.
The Commonwealth provides nothing affirmatively suggesting that
the judge gave the instruction.
We read the record, including the stipulation, and
supplemental briefing as demonstrating that the judge gave a
general instruction on mental impairment and intoxication as to
intent and knowledge, but did not give the defendant's requested
supplemental instruction on mental impairment and intoxication
negating whether he acted in an extremely cruel or atrocious
manner, and that the defendant did not object to the omission of
this supplemental instruction. Because the defendant did not
object, we review this unpreserved issue "for a substantial
likelihood of a miscarriage of justice" (quotations omitted).
Denson, 489 Mass. at 144, quoting Upton, 484 Mass. at 160. "For
an error to have created a substantial likelihood of a
miscarriage of justice, it must have been 'likely to have
influenced the jury's conclusion.'" Upton, supra, quoting
Commonwealth v. Goitia, 480 Mass. 763, 768 (2018). Accord
Rutkowski, 459 Mass. at 799.
When warranted by the evidence, we have long required a
mental impairment instruction specific to whether the murder was
24
committed with extreme atrocity or cruelty -- in addition to, or
apart from, that given generally on intent and knowledge. See
Rutkowski, 459 Mass. at 798 n.3, 799 (explaining distinction).
We have done so even though extreme atrocity or cruelty does not
require a finding of intent separate from the malice
aforethought required for murder, Commonwealth v. Cunneen, 389
Mass. 216, 227 (1983), modified by Commonwealth v. Castillo, 485
Mass. 852, 865-866 (2020), because mental impairment also
relates, in this context, to the jury's function in serving as
the "community's conscience," Cunneen, supra at 228, quoting
Gould, 380 Mass. at 685. To understand this requirement and its
proper application, we must review several cases decided by this
court, beginning with Gould and concluding with Commonwealth v.
Gonzalez, 469 Mass. 410 (2014).
As the court in Gould, 380 Mass. at 685, explained: "It is
the teaching of our cases that the jurors 'as the repository of
the community's conscience, [must] determine when the mode of
inflicting death is so shocking as to amount to extreme atrocity
or cruelty" (citation omitted). This is because mental
impairment "bears on personal turpitude, and the law, if it is
to maintain the community's respect, must grade its condemnation
according to the moral turpitude of the offender as the
community evaluates it" (quotation and citation omitted). Id.
at 686. More specifically, "if a malicious mind may be
25
considered as evidence that a defendant committed a murder with
extreme atrocity or cruelty, then fairness requires that an
impaired mind may also be considered as evidence" on this same
question. Id. at 684-685. As they are acting as the conscience
of the community in deciding whether a murder was committed with
extreme atrocity or cruelty, the jury should, therefore, be
instructed to consider evidence of mental impairment on the
specific question of extreme atrocity or cruelty. Id. at 685-
686.12
We further clarified this requirement, and the analysis
underlying it, in Cunneen. We began by explaining that "[w]e
adhere to our view that proof of malice aforethought is the only
requisite mental intent for a conviction of murder in the first
degree based on murder committed with extreme atrocity or
cruelty." Cunneen, 389 Mass. at 227. Then, after
"delineat[ing] a number of factors which a jury can consider in
deciding whether a murder was committed with extreme atrocity or
cruelty," id.,13 we confirmed that Gould also established that "a
12 We applied our reasoning on mental impairment in Gould to
the jury's consideration of evidence of the defendant's
intoxication as to extreme atrocity or cruelty in Commonwealth
v. Perry, 385 Mass. 639, 648-649 (1982), S.C., 424 Mass. 1019(1997).
13In Cunneen, 389 Mass. at 227, we listed the factors as
including "indifference to or taking pleasure in the victim's
suffering, consciousness and degree of suffering of the victim,
26
defendant's impaired mental capacity is an additional factor
which the jury should consider in determining whether the murder
was committed with extreme atrocity or cruelty," id. at 228. We
again specifically referenced in our reasoning the jury's
responsibility to reflect "the community's conscience, goals,
and norms" in this determination. Id., quoting Gould, 380 Mass.
at 685.
We reiterated this reasoning in Commonwealth v. Oliveira,
445 Mass. 837, 846-847 (2006), after our approval of and
recommendation to use the 1999 model jury instructions on
homicide that are at issue in this case. In so doing, we
extent of physical injuries, number of blows, manner and force
with which delivered, instrument employed, and disproportion
between the means needed to cause death and those employed." We
modified the so-called Cunneen factors in our recent decision,
Castillo, 485 Mass. at 865-866. There, we concluded that, "[t]o
find that the Commonwealth has proved beyond a reasonable doubt
that a defendant caused the death of the deceased with extreme
atrocity or cruelty, future juries must consider the following
three evidentiary factors": "whether the defendant was
indifferent to or took pleasure in the suffering of the
deceased"; "whether the defendant's method or means of killing
the deceased was reasonably likely to substantially increase or
prolong the conscious suffering of the deceased"; and "whether
the means used by the defendant were excessive and out of
proportion to what would be needed to kill a person." Id.
This clarification, designed to prevent a jury from finding
"extreme atrocity or cruelty based only on the degree of a
victim's suffering," rather than in reference to the "extreme
nature of the defendant's conduct," id. at 865, does not change
our historical analysis of the purpose and need for the mental
impairment instruction for extreme atrocity or cruelty -- to
serve as the conscience of the community, as explained supra.
27
explained that the language of the model jury instructions was
"consistent" with Cunneen and its clarification of Gould:
"[W]hile reduced mental capacity is relevant to the jury's
exercise of their broad discretion as a reflection of the
community's conscience, there is no greater mens rea
required for murder by extreme atrocity or cruelty than
there is for murder in the second degree, and the crime
does not require that the defendant be aware that his acts
were extremely cruel or atrocious."
Id. at 848-849.
All this sheds light on our somewhat abbreviated discussion
in Rutkowski. In that case, the defendant, after "present[ing]
expert psychiatric testimony that included," in part, "a review
of her long history of mental illness," Rutkowski, 459 Mass. at
796, and her "diagnoses that included psychotic depression,"
requested an instruction on mental impairment regarding extreme
atrocity or cruelty, id. at 797. The judge, however,
"instructed on mental impairment only as it related to intent
and knowledge." Id. We concluded that this was error. Id. at
799.
As explained in Rutkowski, and more clearly in its progeny,
"there is no greater mens rea required for murder by extreme
atrocity or cruelty than there is for murder in the second
degree," Oliveira, 445 Mass. at 848, as "[t]he Commonwealth need
not prove that . . . the defendant intended to inflict
extraordinary pain, or that [he or] she knew that [his or] her
acts were extremely atrocious or cruel" (citation omitted),
28
Rutkowski, 459 Mass. at 798 n.3. Therefore, as the court in
Rutkowski held, "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." Id. at 798. As it was not, and the
"evidence of the defendant's mental impairment [was] significant
and . . . a critical aspect of [the] defense, the failure to
instruct the jury that they could consider evidence of that
impairment on the question of extreme atrocity or cruelty
effectively removed what may have been [the] only viable defense
to the question of extreme atrocity or cruelty." Id. at 799.
The court, therefore, upheld the verdict, but only as to murder
in the second degree. Id. at 800.
We found a similar error in Gonzalez. There, "the
defendant stabbed his girl friend multiple times" at his
apartment "[i]n the early morning hours of February 15, 2009,"
Gonzalez, 469 Mass. at 411, after an evening of steady drinking,
id. at 412, and was convicted of murder in the first degree on a
theory of extreme atrocity or cruelty, id. at 411. The jury
received instructions on "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." Id. at 421. The judge
also instructed on the impact of intoxication on the defendant's
29
intent but "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." Id., citing Rutkowski, 459 Mass.
at 798. Because of the "strong evidence of the defendant's
intoxication at the time of the killing," Gonzalez, supra at
423, "[t]he absence of such an instruction was error," even
where the jury received the instruction on intent, as "the
judge's instructions . . . 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," id. at 422, citing Rutkowski, supra at 797-799.
Given this long line of cases, we conclude that, here, the
judge clearly erred in failing to give an instruction on mental
impairment as it related to extreme atrocity or cruelty, see
Gonzalez, 469 Mass. at 421-422; Rutkowski, 459 Mass. at 797-799,
especially considering the "strong evidence," discussed supra,
of the defendant's mental impairment on the night of the
killing, see Gonzalez, supra at 423.
"We turn now to whether the error in the jury instructions
created a substantial likelihood of a miscarriage of justice."
Gonzalez, 469 Mass. at 422. There is no doubt that the victim's
manner of death -- multiple chop wounds from a machete -- is
horrific. In Gonzalez, the Commonwealth argued "that there was
30
no substantial likelihood" of a miscarriage of justice based on
"the number of stab wounds the defendant inflicted on the victim
and her degree of suffering," but we concluded that such an
argument "overlook[ed] the rationale for the jury instruction."
Id. A proper instruction ensures that the jury's verdict
"reflect[s] the community's conscience in determining what
constitutes an extremely cruel or atrocious killing" (citation
omitted). Id. at 422-423. This instruction entitles the jury
to take into account the defendant's significant mental
impairment, even in brutal murders, and adjust their degree of
condemnation based on their consideration of the mental
impairment. See Gould, 380 Mass. at 686.
Here, we have another factor to consider. The jury did not
convict the defendant of murder in the first degree on the
theory of deliberate premeditation where they received a
specific instruction to consider mental impairment, but they did
convict him on a theory of extreme atrocity or cruelty where
such an instruction was omitted. Under these circumstances, in
the absence of the required instruction, "we cannot say that 'we
are substantially confident that, if the error had not been
made, the jury verdict would have been the same'" (citation
omitted). Gonzalez, 469 Mass. at 423. See Rutkowski, 459 Mass.
at 799 ("We cannot say that this error did not likely influence
the jury's verdict"). This error, therefore, created a
31
substantial likelihood of a miscarriage of justice. See
Gonzalez, supra; Rutkowski, supra.We turn now to the disposition of the defendant's
conviction of murder in the first degree. "The distinction
between the two degrees of murder is that murder in the first
degree is a murder committed with deliberate premeditation, or
with extreme atrocity or cruelty, or in the commission or
attempted commission of a crime punishable with imprisonment for
life," Commonwealth v. Sires, 413 Mass. 292, 296 n.4 (1992),
whereas murder is "the killing of a human being, with malice
aforethought," G. L. c. 277, § 39. "Murder which does not
appear to be in the first degree is murder in the second
degree," G. L. c. 265, § 1, meaning murder in the second degree
is a "lesser included offense" of murder in the first degree,
see Gonzalez, 469 Mass. at 421; Rutkowski, 459 Mass. at 800.
"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," Gonzalez, 469 Mass. at 423, "[w]e discern
no error in the jury's verdict as to murder in the second
degree," Rutkowski, 459 Mass. at 800. Similarly, in
Commonwealth v. Perry, 385 Mass. 639, 649 (1982), S.C., 424
Mass. 1019 (1997), we concluded that, while the judge erred in
not instructing the jury on intoxication with respect to extreme
32
atrocity or cruelty, "[t]he jury's verdict [still] established
that the defendant was guilty of murder," as "[t]here was ample
evidence to support" it. Here, apart from failing to instruct
the jury to consider mental impairment for the purpose of
atrocity or cruelty, the judge otherwise properly instructed the
jury on intent and malice, and the other elements of murder in
the second degree, and there was ample evidence to support such
a verdict.
In such cases, "we have the option of directing a reduction
in the verdict to murder in the second degree rather than
ordering a new trial." Commonwealth v. Lennon, 399 Mass. 443,
449 (1987). "We will normally exercise that option where the
Commonwealth has requested . . . that we do so, rather than
grant a new trial at which the Commonwealth might prove murder
in the first degree." Id. at 450. Because the Commonwealth has
not made that request in this case, "on remand, the Commonwealth
has the option of moving to have the defendant sentenced on the
lesser included offense of murder in the second degree or of
retrying the defendant for murder on the theory of extreme
atrocity or cruelty." Rutkowski, 459 Mass. at 800. Accord
Gonzalez, 469 Mass. at 423.
b. Motion for a new trial. "'A motion for a new trial is
addressed to the sound discretion of the trial judge,' who may
grant a new trial 'if it appears that justice may not have been
33
done'" (alteration omitted). Commonwealth v. Jacobs, 488 Mass.
597, 600 (2021), quoting Commonwealth v. Kolenovic, 471 Mass.
664, 672 (2015), S.C., 478 Mass. 189 (2017). "We review a
decision on a motion for a new trial for an abuse of
discretion," ascertaining whether the denial "resulted from 'a
clear error of judgment in weighing the factors relevant to the
decision such that the decision falls outside the range of
reasonable alternatives.'" Jacobs, supra, quoting L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014). "Where a judge
conducts an evidentiary hearing, we 'accept the judge's findings
where they are supported by substantial evidence in the record'"
(alteration omitted). Jacobs, supra, quoting Commonwealth v.
Velez, 487 Mass. 533, 540 (2021).
The defendant argues that, if his claims fail on appeal,
then the motion judge committed reversible error by not granting
him a new trial, because the trial transcript was inadequate to
support his appeal and he was "entitled to a per se new trial
where the Commonwealth as responsible for loss of the
transcript." We address each contention in turn.
i. Adequacy of record. "[A] defendant is entitled to a
record of sufficient completeness to permit proper consideration
of his claims. However, this does not translate automatically
into a complete verbatim transcript" (quotations and citations
omitted). Commonwealth v. Imbert, 479 Mass. 575, 577-578
34
(2018). "A new trial will not be granted 'unless the trial
proceedings cannot be reconstructed sufficiently to present the
defendant's claims.'" Id. at 578, quoting Harris, 376 Mass. at
78. As we have repeatedly held, "a statement of agreed facts"
as an "alternative method[] of reporting the trial proceedings"
is "constitutionally adequate if [it] bring[s] before the
appellate court an account of the events sufficient to allow it
to evaluate the defendant's contentions." Imbert, supra,quoting Harris, supra at 77.
As in Imbert, 479 Mass. at 579, "the defendant does not
present a specific dispute over [the] contents [of the
reconstruction] relating to any claim of error," other than
claiming that not prevailing here means the stipulation has
failed him. But this assertion begs the question. The
defendant conceded at the evidentiary hearing in front of the
motion judge that "the record has been reconstructed adequately
to present the appellate issues," going so far as to say that
the reconstruction efforts were "extremely successful." From
September of 2005 to March of 2015, appellate counsel worked
diligently to reconstruct the record based on trial records and
notes, as well as a joint conference with trial counsel and the
prosecutor. We discern no reversible error in the motion
judge's determination that the reconstructed record was adequate
for appeal.
35
ii. Responsibility for loss of transcript. The defendant
renews an argument that he made at the evidentiary hearing on
the reconstructed transcript: that we should extend our ruling
in Harris by requiring a per se new trial where the Commonwealth
is at fault for the missing transcript and that, here, the
Commonwealth includes a court reporter and clerk's office staff.
We decline to do so.
In Harris, 376 Mass. at 74, "the stenographic notes of the
trial . . . had been stolen from the court reporter's car," and
yet, we did not find that the Commonwealth was at fault for the
missing transcripts. Similarly, here, one of the court
reporters "left her job with the Commonwealth, without having
transcribed . . . three days of the [d]efendant's trial." The
trial court's administrative office intended to have this
stenographer's tapes transcribed by a different court reporter,
but "the tapes could not be located." Four years after these
inquiries, a clerk of the court found two of the three days of
transcripts and shared them with defense appellate counsel.
Based on these facts, we decline to extend Harris in this
instance.
We do not identify any abuse of discretion by the motion
judge, and so the motion for a new trial was properly denied on
these grounds.
36
c. Review under G. L. c. 278, § 33E. We have reviewed the
record in accordance with G. L. c. 278, § 33E, and we discern no
other basis for further relief.
3. Conclusion. For the foregoing reasons, we vacate the
conviction of murder in the first degree and remand for the
Commonwealth to move either for sentencing on a conviction of
murder in the second degree or for a new trial on the theory of
extreme atrocity or cruelty. We affirm the denial of the
defendant's postconviction motion for a new trial on the grounds
presented.
So ordered.