47 N.E.3d 19
Mass.2016Background
- Defendant (Boucher) shot James Tigges (fatally) and Jackson Duncan (paralyzed) at a house party after a dispute; partygoers had been drinking and the defendant had a loaded handgun.
- Duncan testified defendant dropped a gun, bragged about hollow-point bullets, and later taunted the victims; defendant fired multiple shots from a few to ~15 feet and fled.
- Defendant was convicted of first-degree murder on an extreme atrocity/cruelty theory, armed assault with intent to murder, and related firearm offenses; acquitted of premeditation-based first-degree murder.
- At trial the defense presented evidence of the defendant’s alcohol consumption; the degree of intoxication was disputed.
- On appeal defendant argued the judge’s voluntary-intoxication/diminished-capacity instruction improperly limited the jury to considering intoxication only for intent/knowledge elements and thus prevented consideration of intoxication as to extreme atrocity/cruelty.
- Defendant also asked the court to adopt a heightened mens rea for extreme atrocity/cruelty or, alternatively, reduce the conviction under G. L. c. 278, § 33E.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the intoxication/diminished-capacity instruction improperly limited jury consideration of intoxication for extreme atrocity/cruelty | Commonwealth: Instruction correctly tied intoxication evidence to required mental states and to the Cunneen factors for atrocity/cruelty | Boucher: Instruction repeatedly referenced intent/knowledge, implying intoxication could only negate intent/knowledge and not negate extreme atrocity/cruelty (which requires no separate intent) | Held: No error — instruction made clear intoxication could be considered in determining whether the defendant acted in a cruel or atrocious manner; judge supplemented charge in writing when jury asked for clarification |
| Whether extreme atrocity/cruelty requires proof of intent or knowledge beyond malice | Commonwealth: Existing law requires only malice aforethought, not specific intent or knowledge that conduct was atrocious | Boucher: Argues court should impose additional mens rea (intent to cause extreme atrocity/cruelty) as a matter of law | Held: Court declines to adopt new mens rea; reaffirmed that malice suffices for extreme atrocity/cruelty under current precedent |
| Whether trial preservation sufficed for requested Gould-style instruction | Commonwealth: Defense request was not specific enough to preserve error | Boucher: Counseled for Gould instruction; preserved by post-charge reference to written request | Held: Preservation adequate; but substance of request inconsistent with current law so no relief granted |
| Whether conviction should be reduced under G. L. c. 278, § 33E upon review of record | — | Boucher asked for reduction to second-degree murder | Held: Affirmed convictions; no reduction warranted on full review |
Key Cases Cited
- Commonwealth v. Riley, 467 Mass. 799 (2014) (discussed concurring proposals on mens rea for atrocity/cruelty)
- Commonwealth v. Berry, 466 Mass. 763 (2014) (concurring opinion proposing mens rea refinement)
- Commonwealth v. Cunneen, 389 Mass. 216 (1983) (sets factors for extreme atrocity or cruelty)
- Commonwealth v. Monsen, 377 Mass. 245 (1979) (atrocity/cruelty conviction may stand though defendant did not know acts were atrocious)
- Commonwealth v. Martinez, 437 Mass. 84 (2002) (application of atrocity/cruelty doctrine)
- Commonwealth v. Rutkowski, 459 Mass. 794 (2011) (error where intoxication instruction suggested impairment only related to malice)
- Commonwealth v. Rosenthal, 432 Mass. 124 (2000) (discussion of mens rea and atrocity/cruelty)
- Commonwealth v. Howard, 469 Mass. 721 (2014) (voluntary-intoxication instruction must allow consideration of intoxication in relation to atrocity/cruelty)
- Commonwealth v. Gonzalez, 469 Mass. 410 (2014) (same principle regarding intoxication instruction)
- Commonwealth v. Szlachta, 463 Mass. 37 (2012) (no error where jury was instructed that impairment could be considered for cruel or atrocious manner)
- Commonwealth v. Oliveira, 445 Mass. 837 (2006) (supporting precedent on considering impairment in atrocity/cruelty analysis)
- Commonwealth v. Gould, 380 Mass. 672 (1980) (defense-requested instruction about impairment and appreciation of consequences)
- Commonwealth v. LeBeau, 451 Mass. 244 (2008) (standards for §33E appellate review)