Commonwealth v. Boucher

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SJC-11605
COMMONWEALTH vs. RICHARD M. BOUCHER, JR.
Plymouth. September 11, 2015. - March 23, 2016.
Present: Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ.
Homicide. Assault and Battery by Means of a Dangerous Weapon.
Armed Assault with Intent to Murder. Practice, Criminal,
Capital case, Instructions to jury. Intoxication. Mental
Impairment. Intent.
Indictments found and returned in the Superior Court
Department on July 2, 2010.
The cases were tried before Raymond P. Veary, Jr., J.
Leslie W. O'Brien for the defendant.
Robert C. Thompson, Assistant District Attorney, for the
Commonwealth.
Chauncey B. Wood, Paul E. Nemser, & Joshua M. Daniels, for
Massachusetts Association of Criminal Defense Lawyers, amicus
curiae, submitted a brief.
DUFFLY, J. The defendant was convicted of murder in the
first degree, G. L. c. 265, § 1, on a theory of extreme atrocity
or cruelty in the May 27, 2010, shooting death of James Tigges
2
at a party in Plymouth.1 The defendant also was convicted of
armed assault with intent to murder, and assault and battery by
means of a dangerous weapon, in the shooting of Tigges's friend,
Jackson Duncan, who was paralyzed from the chest down when a
bullet severed his spinal cord.2
On appeal, the defendant contends that the judge's
instructions as to the manner in which the jury could consider
evidence of mental impairment by intoxication precluded them
from considering that evidence on the question whether the
defendant acted with extreme atrocity or cruelty. Specifically,
he contends that the instructions improperly limited the jury's
consideration of that evidence to the elements of murder in the
first and second degree requiring intent or knowledge, such as
premeditation or malice, whereas conviction of murder in the
first degree on a theory of extreme atrocity or cruelty does not
require either that a defendant know his or her acts are
extremely atrocious or cruel, or that he or she intend them to
be. In the alternative, the defendant suggests that this court
should adopt a specific intent requirement for murder committed
with extreme atrocity or cruelty, as was proposed in concurring
1
The defendant was acquitted of murder in the first degree
on a theory of premeditation.
2
In addition, the defendant was convicted of unlawful
possession of a firearm, G. L. c. 269, § 10 (a), and unlawful
possession of a loaded firearm, G. L. c. 269, § 10 (n).
3
opinions in Commonwealth v. Riley, 467 Mass. 799, 828-829 (2014)
(Duffly, J., concurring), and Commonwealth v. Berry, 466 Mass.
763, 777-778 (2014) (Gants, J., concurring). We decline the
invitation to adopt a new formulation of extreme atrocity or
cruelty at this time. The defendant asks also that we exercise
our extraordinary power pursuant to G. L. c. 278, § 33E, and
reduce his degree of guilt to murder in the second degree.
For the reasons that follow, we conclude that there was no
error requiring reversal, and we see no reason to grant relief
under G. L. c. 278, § 33E.
1. Background. The jury could have found the following.
Early on the evening of May 26, 2010, Adam Egan was in his
apartment in Plymouth with a friend, when the two decided to
telephone some other friends and invite them over. Tigges,
Duncan, the defendant, and another friend of his were among the
guests. Eventually, the party grew to approximately twenty
people, in their late teens or early twenties, all of whom were
drinking alcohol. The defendant, like most of the guests, was
drinking beer. Some of the guests played a drinking game called
"beer pong," but no one testified to having seen the defendant
participate in the beer drinking game. Two witnesses testified
that, although the defendant had been drinking, he "seemed
normal," and was acting no differently from his manner on
previous occasions when they had been at parties with him. The
4
defendant was not slurring his words, nor was he stumbling or
falling over.
At one point, while the defendant was in the kitchen with
Duncan and another guest, the defendant dropped a gun; he said
"oh shit" and picked it up. When Duncan inquired why the
defendant had the gun and what he would do if he got caught with
it, the defendant said that he would have no problem shooting a
police officer "if he had to." Duncan thought the gun was a
"Glock," and he could see that it was loaded. The defendant
told him, in a manner that appeared to be "kinda cocky" or
"bragging," that the bullets were hollow tip.3 The presence of
the gun in the apartment made Duncan "uncomfortable," and he
decided to leave the party.
As Duncan and Tigges were leaving through the back door,
the defendant removed a bottle of beer from Duncan's back
pocket; Duncan's cousin, Mikayla Plaisted, took the bottle from
the defendant and handed it back. Duncan and Tigges continued
walking outside to the back yard, with Plaisted close behind.
The defendant followed them, making comments; he called Tigges
and Duncan names like "pussy" and "bitch," and asked if Duncan
3
A ballistics expert testified that a hollow point bullet
is designed to expand when the projectile strikes an object, so
that when a hollow point bullet "strikes human tissue" it
results in a larger wound than that caused by other types of
bullets.
5
thought he was a "tough guy."
The defendant was somewhere between four and fifteen feet
from Tigges and Duncan when he began to shoot at them.4 Duncan
was shot first; Tigges jumped in front of him as the shots were
being fired. The defendant continued to fire until the gun made
several clicking sounds.5 He then ran from the scene. Plaisted
chased him for some distance, shouting, "I know who you are, you
shot my cousin, you're not going to get away with it, they're
going to find you." The defendant turned around, looked at her,
raised his hand as though it were a gun, and smiled, before
continuing to run.
Tigges was shot four times, in the abdomen and left leg.
He remained conscious after he was shot; he was moaning and
grimacing and appeared to be in a great deal of pain. He said
"please don't touch me," "it hurts," and that it hurt
"everywhere." Tigges was transported to a local hospital, and
then to a Boston hospital, where he died a few hours later as a
result of his wounds. Duncan was shot once in the chest; the
bullet traveled through his body and transected his spinal cord.
Duncan survived, but was paralyzed from the chest down. He was
4
Witnesses variously described the distance between the
defendant and the victims at that point as from four to five
feet, eight feet, eight to ten feet, and ten to fifteen feet.
5
The police later recovered nine spent shell casings at the
scene.
6
one of the Commonwealth's key witnesses at trial.
A trained police canine was dispatched to the scene shortly
after the shootings, at approximately 1:20 A.M. on the morning
of May 27, 2010, in an effort to locate the defendant. The
canine tracked to a house several blocks away, but the defendant
was not found inside and no physical evidence was recovered.6 He
was apprehended approximately two weeks later, at a fast food
restaurant in another town.
2. Discussion. a. Instruction on diminished capacity.
The defendant argues that the judge's instruction on diminished
capacity was erroneous. He claims that the instruction
improperly limited the jury's consideration of the evidence of
his intoxication and, consequently, did not allow the jury to
consider evidence of his diminished capacity from the
consumption of alcohol with reference to whether the shooting
was committed with extreme atrocity or cruelty.7 Specifically,
the defendant maintains that because the instruction on
intoxication limited the jury's consideration of the evidence of
6
The police later learned that the house where the canine
had alerted was that of one of the defendant's friends.
7
There was testimony at trial that the defendant had been
drinking, but the evidence of whether and to what degree the
defendant was intoxicated was disputed. In support of the
defendant's theory that he was highly intoxicated, one witness
testified that everyone at the party "was drinking beer" and
"getting drunk," including the defendant who by midnight was
"very drunk."
7
intoxication to his knowledge and intent, they would not have
been able to consider his level of intoxication with reference
to whether the killing was committed with extreme atrocity or
cruelty because, under current law, to convict a defendant of
murder in the first degree on a theory of extreme atrocity or
cruelty, the Commonwealth is not required to prove that the
defendant either knew his or her acts were extremely atrocious
or cruel, or intended that they be so.
We do not agree with the defendant's view of these
instructions. The instructions correctly described the elements
of murder in the first degree on the theory of extreme atrocity
or cruelty. The judge properly instructed the jury on the
existing state of the law, and the factors set forth in
Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983) (Cunneen),
that they were to consider in determining whether the killing
was committed with extreme atrocity or cruelty: "indifference
to or taking pleasure in the victim's suffering, consciousness
and degree of suffering of the victim, 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." The judge also
instructed properly 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
8
cruelty," id., and that "murder committed with malice
aforethought may be found to have been committed with extreme
atrocity or cruelty, even though the murderer did not know that
his act was extremely atrocious or cruel," id., quoting
Commonwealth v. Monsen, 377 Mass. 245, 253 (1979). See, e.g.,
Commonwealth v. Martinez, 437 Mass. 84, 91 (2002). The judge
correctly explained that "[t]he inquiry focuses on the
defendant's actions in terms of the manner and means of
inflicting death and on the resulting effect on the victim."
After giving the instruction on extreme atrocity or
cruelty, the judge then instructed on diminished capacity by
voluntary consumption of alcohol. The challenged portion of
that instruction is as follows:
"I now want to turn to the issue of diminished
capacity. Whenever the defendant's knowledge or intent
must be proved, the defendant's culpability rests upon the
Commonwealth's proof of such knowledge or intent beyond a
reasonable doubt. In other words, the Commonwealth must
prove beyond a reasonable doubt that the defendant had the
required knowledge or intent in order to prove that he
committed the crime. Whenever the Commonwealth must prove
the defendant's intention to do something, you should
consider any credible evidence of the effect upon the
defendant of his consumption of alcohol 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 the effect upon
the defendant of his consumption of alcohol in determining
whether the Commonwealth has met its burden.
"More particularly, you should consider any credible
evidence of the effect upon the defendant of his
9
consumption of alcohol in determining, one, whether [the
defendant] deliberately premeditated the killing of James
Tigges. That is whether he thought before he acted and
whether he reached the decision to kill after reflection,
at least for a short period of time. Two, whether [the
defendant] intended to kill or to cause grievous bodily
harm to James Tigges or was aware that his conduct created
a plain and strong likelihood that Mr. Tigges's death would
result from his conduct. And three, whether [the
defendant] acted in a cruel or atrocious manner in causing
the death of James Tigges.
"In considering such evidence, you should consider it
along with all other credible evidence relevant to the
defendant's intent and/or knowledge. I reiterate, whenever
the Commonwealth must prove that a defendant intended to do
something or had knowledge of certain facts or
circumstances, in order to prove a crime, such as first or
second-degree murder, you should consider any credible
evidence of the effect of his consumption of alcohol in
determining whether the Commonwealth has met its burden of
proving the defendant's intent or knowledge beyond a
reasonable doubt."
The defendant contends that, in context, this instruction,
with its frequent references to his knowledge or intent, would
have suggested to the jury that they could consider evidence of
intoxication only to establish the elements of the offense that
require intent or knowledge, such as premeditation and malice.
Under this view, the jury would have been precluded from
considering evidence of the defendant's impairment from
intoxication as it related to all of the Cunneen factors,
because "intent and knowledge are not aspects of extreme
atrocity or cruelty." See Commonwealth v. Rutkowski, 459 Mass.
794, 797-798 (2011), citing Commonwealth v. Rosenthal, 432 Mass.
124, 130 (2000).
10
When the theory of extreme atrocity or cruelty is in play,
an instruction on voluntary intoxication that links
consideration of intoxication only to a defendant's intent or
knowledge, without also explaining that the jury may consider
intoxication in relation to whether the defendant committed the
killing with extreme atrocity or cruelty, is in error. See
Commonwealth v. Howard, 469 Mass. 721, 750 (2014); Commonwealth
v. Gonzalez, 469 Mass. 410, 422 (2014). An instruction on
voluntary intoxication also is erroneous if it is unclear from
the context in which it is given that the jury may consider
whether a defendant's intoxication negates a finding of extreme
atrocity or cruelty. See Commonwealth v. Rutkowski, supra at
798 ("[T]he context in which the instruction was given,
immediately after the instruction on murder in the second
degree, suggested that mental impairment related only to the
issue of malice. . . . 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").
Here, however, the instruction correctly conveyed that the
effect upon the defendant of his consumption of alcohol was
relevant to the Commonwealth's burden to prove that the
defendant acted in a cruel or atrocious manner. Moreover, after
the jury requested clarification as to the instructions on
11
murder in the first degree and voluntary intoxication, the judge
provided them with a written document containing the language
that he had used previously, formatted in such a way as to show
that "credible evidence of the effect upon the defendant of his
consumption of alcohol" should "[m]ore particularly" be
considered in reaching a determination whether the defendant
"acted in a cruel or atrocious manner in causing the death of
James Tigges." We previously have concluded that a similar
instruction was not erroneous. See Commonwealth v. Szlachta,
463 Mass. 37, 49 (2012) (not error to instruct that jury "may
consider evidence of impairment when considering whether [a
defendant] acted in a cruel or an atrocious manner causing the
death of [a victim]"). See also Commonwealth v. Oliveira, 445
Mass. 837, 848-849 (2006).
b. Request that jury be instructed to consider knowledge
or intent. The defendant suggests in the alternative that we
should consider adding an additional element of knowledge or
intent in cases involving extreme atrocity or cruelty, above
that required to prove malice. In his proposed jury
instructions, while acknowledging that it was inconsistent with
the current state of the law, defense counsel requested that, as
suggested by language in Commonwealth v. Gould, 380 Mass. 672,
686 & n.16 (1980) (Gould), the jury should be instructed that
they "may consider what effect, if any, the defendant's impaired
12
capacity had on his ability to appreciate the consequences of
his choices" in relation to having acted with extreme atrocity
or cruelty.8 Before us, the defendant's argument expands upon
his request for a Gould instruction. The defendant contends
that the jury should be instructed that when "a conviction is
based on the theory of extreme atrocity or cruelty, it must be
proven that the defendant intended that the consequences of his
actions be extremely atrocious or cruel."
In our decisions following Gould, however, we have
reiterated that there is no requirement of intent, beyond the
requirement of malice needed for all convictions of murder, in
order to convict a defendant on a theory of extreme atrocity or
cruelty. Thus, the instruction as given complies with the
current state of the law and was not erroneous. See, e.g.,
Commonwealth v. Szlachta, supra at 47 (although Gould appeared
to suggest "that the court was introducing a new mens rea
8
The Commonwealth argues that defense counsel was not
sufficiently specific in challenging the absence of the
requested language in the judge's final charge, and therefore
that any objection to the absence of the proposed instruction
was not preserved. After the charge, counsel directed the
judge's attention to the omission of the requested language by
reference to the numbered paragraphs of his written
instructions, including the request for the Gould instruction.
See Commonwealth v. Gould, 380 Mass. 672, 684-685 (1980).
Although counsel's objection may not have been a model of
clarity, the request for that instruction was preserved. See
Commonwealth v. Morgan, 422 Mass. 373, 376-377 (1996);
Commonwealth v. Biancardi, 421 Mass. 251, 252 (1995).
13
element . . . our jurisprudence following Gould clearly has
rejected this suggestion"); Cunneen, supra at 227 ("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").
3. Review under G. L. c. 278, § 33E. The defendant also
asks us to review his murder conviction under G. L. c. 278,
§ 33E, and reduce the degree of guilt to murder in the second
degree. We have conducted a review of the entire record
pursuant to G. L. c. 278, § 33E, and we see no reason to set
aside or reduce the defendant's conviction. See Commonwealth v.
LeBeau, 451 Mass. 244, 261-262 (2008).
Judgments affirmed.