Commonwealth v. Smith, 460 Mass. 318

Defendant was convicted in 1995 of first-degree murder on a theory of extreme atrocity or cruelty; conviction affirmed on direct appeal (Commonwealth v. Smith, 426 Mass. 76 (1997)).
In 2009 the defendant moved for a new trial challenging the extreme atrocity/cruelty instruction and the reasonable provocation instruction as to murder and manslaughter.
The trial judge granted the motion for a new trial; the Commonwealth sought leave to appeal under G. L. c. 278, § 33E, and a single justice granted leave.
The Commonwealth appeals the order granting a new trial; the court vacates the order and denies the motion for a new trial.
Factual underpinning: the defendant and victim, dating about six weeks, argued after the victim was found to have engaged in oral sex with another man; the defendant later strangled the victim in his Brockton apartment; death by manual strangulation.
The evidence showed a prolonged struggle, bruising, and the defendant’s indifference to the victim’s suffering; the confession and timing placed the events on May 21, 1994, with death occurring by strangulation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the extreme atrocity or cruelty instruction was erroneous	Commonwealth urged Hunter error; Cunneen factors not exclusive.	Defense argued instruction error created substantial risk of miscarriage.	Error in instruction; but substantial risk standard governs collateral review; remanded for denial of new trial.
Whether the provocation-based voluntary manslaughter instruction was appropriate	Acevedo framework applied; evidence could support provocation.	No adequate cooling-off or legally recognizable provocation.	Court abused discretion; provocation instruction insufficient; order vacated and motion denied.
Standard of review and gatekeeping under G. L. c. 278, § 33E	Single justice properly allowed appeal; plenary review applied to substantial issues.	Review should be limited by § 33E standards; issues not new should be curtailed.	Single justice allowed appeal; substantial risk and new and substantial questions framework governs; plenary review applied to direct issues.

Commonwealth v. Cunneen, 389 Mass. 216 (1983) (factors for extreme atrocity or cruelty standard)
Commonwealth v. Hunter, 416 Mass. 831 (1994) (erroneous Cunneen-based instruction)
Commonwealth v. Semedo, 422 Mass. 716 (1996) (same unobjected instruction did not create substantial likelihood of miscarriage of justice)
Commonwealth v. Acevedo, 427 Mass. 714 (1998) (Acevedo error; provocative instruction framework)
Commonwealth v. Boucher, 403 Mass. 659 (1989) (malice and provocation mutually exclusive principle)
Commonwealth v. Simpson, 434 Mass. 570 (2001) (voluntary manslaughter instruction not required when provocation lacking)
Commonwealth v. Groome, 435 Mass. 201 (2001) (cooling off and provocation standard; actions after discovery matter)
Commonwealth v. Mercado, 452 Mass. 662 (2008) (cooling off sufficient to negate provocation)
Commonwealth v. Zagrodny, 443 Mass. 93 (2004) (cooling off and provocation principles)
Commonwealth v. Latimore, 423 Mass. 129 (1996) (precedent on plenary review and gatekeeping)
Commonwealth v. Francis, 411 Mass. 579 (1992) (gatekeeping under § 33E; review standards)
Commonwealth v. Wright, 411 Mass. 678 (1992) (thorough plenary review obligation)
Commonwealth v. Angiulo, 415 Mass. 502 (1993) (context for plenary review)
Dickerson v. Attorney Gen., 396 Mass. 740 (1986) (review standards in collateral contexts)