Lead Opinion
The defendant appeals from his convictions of murder in the second degree and a related charge. He argues that, based on the evidence presented at trial and the prosecutor’s closing argument, his murder conviction should be reversed or reduced to a conviction of manslaughter. We conclude that there was sufficient evidence to convict the defendant of murder in the second degree and that the prosecutor’s closing argument was not improper. However, for the reasons discussed below, we do not decide whether the defendant is entitled to a reduced verdict.
The defendant argues as well that this court should expand its holding in Commonwealth v. Walczak, 463 Mass. 808 (2012), to require that in all cases where the Commonwealth seeks to indict a person for murder, whether the person is a juvenile (as in Walczak) or an adult (as here), and there is substantial evidence of mitigating circumstances or defenses presented to the grand jury, the grand jury must be instructed on the elements of murder and the significance of mitigating circumstances and defenses. We conclude that this defendant is not entitled to relief based on the absence of any such instructions. However, we also believe it is important for the court to gain a better understanding of current grand jury instruction practices before deciding whether the holding of the Walczak case should be expanded in the future. Accordingly, we will appoint a committee to study and make recommendations about this question.
Background. 1. Facts. The jury could have found the following. The fatal altercation occurred in the East Wareham section of Wareham outside a high school graduation party hosted by Dylan Burns. The gathering began on the afternoon of July 28, 2012, and extended into the early morning hours of July 29. The two
Over the next few hours, the defendant repeatedly confronted others at the party, including the Mahoney brothers, and either discussed fighting or offered to fight them. For example, the defendant at one point told the brothers, “[I]f there’s a problem right now, we can go outside and take care of it.” During a confrontation, the brothers forced the defendant up against a wall and told him “no one there wanted to fight” and “to leave before he got hurt.” Brendan then removed a cigarette from behind the defendant’s ear and threw it in the defendant’s face. Brian spoke with Burns and asked him to get the defendant “the fuck out of here before I [Brian], like, hit him or something.” Eventually, Bums did intervene. However, the defendant and the Mahoney brothers continued to exchange words about the possibility of fighting at a nearby beach. As Bums was leading the defendant away from the brothers, Brian reached over Bums’s shoulder and pushed the defendant’s face away.
Burns was able to coax the defendant outside, although the defendant remained confrontational. He told Burns, “My problem is with... the Mahoney [brothers,” and said, “[H]ave them come outside and . . . we’ll solve it. We’ll take care of it with them.” Once outside, the defendant at first would not leave the front of the house, and yelled at the Mahoneys to come outside and fight him. When Brian came out, the defendant said, “[L]et’s go down to the beach. We’ll fight there,” and Brian said, “[A]lright, I’ll see you in like [ten] minutes,” before going back inside. The defendant continued to yell about fighting. After some time outside, however, the defendant began to walk away from the party. He headed down Priscilla Avenue, in the direction of his home and the beach; as he walked, he continued shouting insults back toward the party.
The events at the heart of this case occurred shortly thereafter. The trial witnesses essentially agreed that after the defendant
The following is apparent from the audio-video recording. Footsteps walking can be heard, and a very shadowy figure (identified by several witnesses as the defendant) can vaguely be made out, moving down the road away from the party.
Each Mahoney brother had been stabbed several times. Brendan suffered five stab wounds and one incised wound. One of the stab wounds was to the abdomen, identified by the medical examiner as the only wound that could have caused his death. The remaining wounds were to Brendan’s legs or buttocks. Following surgical intervention, Brendan died on July 31, 2012. Brian suffered two stab wounds to his abdomen and side, and others to the buttocks; the injuries required surgical repair.
Although the weapon used in the stabbings was not recovered, there was testimony that the defendant had exhibited a folding knife, in a nonthreatening manner, to one person at Burns’s party and to a different person at an earlier party held the same night. The Commonwealth introduced in evidence two knives that were described by those two individuals as looking similar to the knife the defendant had shown to them. Each of the model knives has a blade approximately three and one-half inches long and a handle approximately four and one-half inches long. The model knives can be opened with one hand by pressing certain areas of the handle.
2. Procedural history. A Plymouth County grand jury indicted the defendant for murder in the first degree (Brendan), armed assault with intent to murder (Brian), and assault and battery by means of a dangerous weapon (Brian). The defendant moved to dismiss the indictments because the Commonwealth had failed to instruct the grand jury on the elements of murder in the first degree, murder in the second degree, and voluntary manslaughter, and on mitigating circumstances and defenses. The motion was denied. The defendant sought review before a single justice in this court pursuant to G. L. c. 211, § 3. The single justice denied relief.
The defendant thereafter was tried before a jury. At the close of the Commonwealth’s case and at the close of all the evidence, the defendant moved for a required finding of not guilty insofar as the indictments alleged murder (in both degrees) and armed assault with intent to murder. The trial judge denied the motions. With respect to the murder indictment, the 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; self-defense; and the mitigating circumstances of (1) heat of passion on reasonable provocation,
Following the verdicts, the defendant renewed his motion under Mass. R. Crim. R 25 (b) (2), as amended, 420 Mass. 1502 (1995), for a required finding of not guilty on the charge of murder. In the alternative, he moved under the same rule for a reduction in the verdict of murder in the second degree to manslaughter, or for a new trial. The trial judge denied all three aspects of the motion. The defendant appealed from his convictions to the Appeals Court, and we transferred the case to this court on our own motion.
Discussion. 1. Motion for a required finding of not guilty. The defendant first argues that the judge erred in denying his motion for a required finding of not guilty insofar as the indictments alleged murder. Essentially, he argues that the Commonwealth failed to meet its burden of proving beyond a reasonable doubt the absence of mitigating circumstances — to wit, the absence of heat of passion induced by reasonable provocation or sudden combat,
When reviewing a motion for a required finding of not guilty, the “question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in original). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). The evidence and the inferences drawn therefrom must be of sufficient force to bring minds of ordinary intelligence and sagacity to the persuasion of guilt beyond a reasonable doubt. Latimore, supra at 676, citing Commonwealth v. Cooper, 264 Mass. 368, 373 (1928). More than slight evidence must support each essential element, and “a conviction may not ‘rest upon the piling of inference upon inference or conjecture and speculation.’ ” Commonwealth v. Reaves, 434 Mass. 383, 390 (2001), quoting Commonwealth v. Mandile, 403 Mass. 93, 94
Where, as in this case, there is evidence supporting the proposition that in stabbing Brian, the defendant acted out of heat of passion, whether induced by reasonable provocation or sudden combat, the jury are instructed to consider whether a reasonable person, either as a result of reasonable provocation or induced by sudden combat, would be “provoked to act out of emotion rather than reasoned reflection.” Model Jury Instructions on Homicide 67-68 (2013).
With respect to heat of passion induced by reasonable provocation, the crucial inquiry is whether an action by the victim or victims in relation to the defendant would have roused in an ordinary person such a state of passion, anger, fear, fright, or nervous excitement as would eclipse the defendant’s capacity for reflection or restraint, and whether it actually did produce such a state of mind in the defendant. Commonwealth v. Burgess, 450 Mass. 422, 439 (2008), citing Commonwealth v. Walden, 380 Mass. 724, 728 (1980). The jury must find a causal connection between the provocation, the heat of passion, and the killing. Burgess, supra at 438, citing Commonwealth v. Garabedian, 399 Mass. 304, 313 (1987). The jury here could have credited the following evidence: the defendant was walking backward down Priscilla Avenue, beckoning people to fight him “three-on-one,” with the knowledge that he had a knife in his pocket and no indication that anyone else was carrying a weapon. Seconds later, the brothers came after him and Brendan landed one punch. Vir
We reach the same conclusion with respect to sudden combat. The mitigating circumstance of sudden combat contemplates a scenario in which “two meet, not intending to quarrel, and angry words suddenly arise, and a conflict springs up in which blows are given on both sides, without much regard to who is the assailant.” Commonwealth v. Rodriquez, 461 Mass. 100, 107 (2011), quoting Commonwealth v. Webster, 5 Cush. 295, 308 (1850). “[I]f no unfair advantage is taken in the outset, and the occasion is not sought for the purpose of gratifying malice, and one seizes a weapon and strikes a deadly blow, it is regarded as homicide in heat of blood.” Rodriquez, supra. The jury could reasonably infer that the defendant uttered the words, “I’ll fight you guys like one-on-one. Not even one-on-one. Two-on-one, three-on-one,” because he had already formed the intent to stab anyone who accepted his invitation to fight. In other words, this evidence at least permits (although certainly does not require) an inference that the defendant solicited a fight with the Mahoney brothers as a pretext for his use of deadly force. See Commonwealth v. Fitzgerald, 380 Mass. 840, 849-850 (1980) (sufficient evidence to warrant jury’s finding of malice and returning verdict of murder in second degree where defendant, after professing intention to injure victims, intentionally used deadly weapon on them). Such a finding would defeat any entitlement to mitigation based on heat of passion induced by sudden combat.
The issue of excessive force used in self-defense is much closer. Because the actual physical confrontation that ended with Brendan’s death raised an issue whether the defendant used a knife — deadly force
The trial evidence here would permit a rational jury to conclude that the Commonwealth had proved beyond a reasonable doubt
In addition, the jury rationally could have concluded that the defendant sought out a fight in which he was outnumbered precisely because he knew that he could use, and intended to use, the knife in his pocket against anyone who accepted his invitation to fight. Such a mental state is inconsistent with the defendant harboring a subjective fear of serious bodily injury from which he could only save himself by using deadly force. See Santos, supra (“A person using a dangerous weapon [or deadly force] in self-defense must also have actually believed that he was in imminent danger of serious harm or death”). Again, because the jury permissibly could make such findings, it follows that the Commonwealth could carry its burden of proving beyond a reasonable doubt that the defendant did not have an actual belief that he could not protect himself absent the use of deadly force — i.e., the second proposition listed previously. Cf. Commonwealth v. Torres, 420 Mass. 479, 492-493 (1995) (defendant not entitled to
If the jury rationally could conclude that the Commonwealth had proved that the defendant was not entitled to use deadly force in self-defense, there would be no basis for a finding that the defendant had used excessive force in self-defense. See Santos, 454 Mass. at 775 (“The jury cannot reach the question of excessive force in self-defense unless they decide that the defendant has exercised his right of self-defense in the first place”); Commonwealth v. Walker, 443 Mass. 213, 218 (2005) (“a voluntary manslaughter verdict based on excessive force in self-defense would have been precluded if the Commonwealth proved that the defendant was not entitled to use deadly force”). See also Commonwealth v. Roberts, 433 Mass. 45, 57 (2000) (excessive force instruction unavailable absent evidence that defendant reasonably believed he was in imminent danger of death or serious bodily injury and used all reasonable means of avoiding combat); Commonwealth v. Berry, 431 Mass. 326, 335 (2000) (defendant did not take advantage of every opportunity to avoid combat when “at least at some point he had adequate means of escape”).
Of course, this was by no means the only conclusion available to the jury. As the defendant correctly points out, there was other evidence that could have led the jury to embrace any of his theories of mitigation. The defendant was just eighteen years old and appeared intoxicated before the fight began at around 3:30 in the morning. Brendan’s punch knocked the defendant to the ground or into a fence, and the defendant at that point was facing what very well may have looked like a group of at least five attackers (Brendan, Brian, Burns, Waitz, and Ingargiola). The jury had ample evidence from which to conclude that the defendant used deadly force in response to reasonable provocation or that he had a right to defend himself but used excessive force in doing so. However, that state of affairs merely entitled the defendant to jury instructions on mitigation and self-defense — which he received in the words of the model jury instructions. Compare Boucher, 403 Mass. at 661-662 (error where instructions failed to inform jury that malice and adequate provocation are “mutually exclusive”); Commonwealth v. Kendrick, 351 Mass. 203, 212-213 (1966) (error where instructions foreclosed jury from finding manslaughter based on excessive force used in self-defense).
Once the jury were properly instructed on mitigating circumstances and self-defense — and no one argues they were not —
2. Prosecutor’s closing argument. The defendant also argues that we should vacate his convictions because the prosecutor improperly shifted the burden of proof by discussing the defendant’s “claim” of self-defense during her closing argument. We disagree. In context, the prosecutor’s comments “do not appear to represent an effort to place a burden on the defendant.” Commonwealth v. Williams, 450 Mass. 879, 889 (2008). To the contrary, they were merely “an attempt to meet the Commonwealth’s burden of disproving self-defense.” Id. The argument was not improper.
3. Motion to reduce the verdict from murder in the second degree to manslaughter. The defendant contests the judge’s denial of his motion under the second sentence of Mass. R. Crim. R 25 (b) (2) to reduce the jury’s verdict to manslaughter.
Under rule 25 (b) (2), a trial judge has broad authority to reduce a jury’s verdict, despite the presence of legally sufficient evidence to support it. Commonwealth v. Sokphann Chhim, 447 Mass. 370, 381 (2006). “A judge’s discretion to reduce a verdict pursuant to rule 25 (b) (2) is appropriately exercised where the weight of the evidence in the case, although technically sufficient to support the jury’s verdict, points to a lesser crime.” Commonwealth v. Rolon, 438 Mass. 808, 821 (2003). In exercising his or her rule 25 (b) (2) powers, the trial judge should be guided by the same considerations that have guided this court in the exercise of its power and duties under G. L. c. 278, § 33E, to reduce a verdict. Commonwealth v. Gaulden, 383 Mass. 543, 555 (1981).
The role of this court in reviewing a trial judge’s ruling on a motion to reduce the verdict is ‘“not to decide whether we would have acted as the trial judge did.” Sokphann Chhim, 447 Mass. at 381. Instead, we decide only whether the judge abused his or her discretion or committed an error of law.
That said, there must be some mechanism by which an appel
In this case, the trial judge did not state his reasons for denying the defendant’s motion to reduce the verdict.
The usual remedy for this predicament — where the record is inadequate for an appellate court to test a judge’s rule 25 (b) (2) ruling for abuse of discretion — would be to remand to the trial judge, who had a firsthand view of the evidence, for findings or an explanation of reasons.
Nonetheless, this court does have the power to transfer cases, or parts of cases, from a lower court to this court. See G. L. c. 211, § 4A, third par.
We add the following, in light of the close correspondence between the review conducted by a trial judge on a motion to reduce the verdict and this court’s consideration whether to reduce a verdict pursuant to § 33E.
4. Grand jury instructions. Finally, the defendant asks that we expand the court’s holding in Commonwealth v. Walczak, 463 Mass. 808 (2012), to apply whether the accused is a juvenile or an adult. Under such a rule, the defendant suggests, the grand jury in this case should have received legal instructions on mitigating circumstances and self-defense. He argues that because no such instructions were given, the integrity of the grand jury was impaired, and the indictment must be dismissed.
In the Walczak case, four Justices agreed that ‘“where the Commonwealth seeks to indict a juvenile for murder and where there is substantial evidence of mitigating circumstances or defenses (other than lack of criminal responsibility) presented to the grand jury, the prosecutor shall instruct the grand jury on the elements of murder and on the significance of the mitigating circumstances and defenses.” Walczak, 463 Mass. at 810 (per curiam). That holding reflected the common ground between two concurring
The holding of the Walczak case, by its own terms, does not help the defendant here. For one, the rule agreed upon in Walczak does not require additional instructions to be provided to the grand jury in cases, like this one, involving accused persons who are adults. Id. at 810. Moreover, as the defendant acknowledges, even if the Walczak case had applied to adults, that case was decided nearly three months after the indictments issued in the present case, and we stated in Walczak that other than the defendant then before the court, the rule would apply only to “future cases.” Id. Finally, the Walczak case came to this court in a very different posture from this one — an appeal from the dismissal of an indictment, not an appeal from a conviction following a full jury trial. See id. at 809.
Because this case does not require us to decide it, we leave to another time the question whether to expand the holding of the Walczak case to apply to adults. Meanwhile, we will convene a committee to assist us in gaining a better understanding of current practices employed by the various district attorneys and the Attorney General before considering an extension of the rule adopted in the Walczak case to similar types of grand jury proceedings involving adults.
Conclusion. The case is transferred to the Supreme Judicial Court for Suffolk County for further proceedings consistent with this opinion.
So ordered.
We acknowledge the amicus brief submitted by the Attorney General.
For convenience, we will use only first names when referring to the Ma-honey brothers individually.
As mentioned, one witness testified that the defendant was walking backward as he left the party. Another witness testified that — at least once the Mahoney brothers began their' pursuit — the defendant started to run away from them. It is impossible to tell from the recording alone which direction the defendant was facing at any given time.
There is substantial overlap, at least in this case, between the theories of heat of passion induced by reasonable provocation and heat of passion induced by sudden combat. We address both theories infra.
The jury were so instructed in the present case.
The defendant correctly does not dispute that his use of a knife constituted deadly force. See, e.g.. Commonwealth v. Pring-Wilson, 448 Mass. 718, 733 (2007), citing Commonwealth v. Toon, 55 Mass. App. Ct. 642, 644 n.3 (2002)
The Model Jury Instructions on Homicide 21 (2013) also provide a fifth option that may be applicable where there is evidence that the defendant was the initial aggressor. The defendant agreed with the trial judge’s decision that including this fifth option was not warranted in this case, because as a general matter, words alone cannot make one into a first aggressor, and did not do so with respect to this defendant. We agree as well. See Commonwealth v. Harris, 464 Mass. 425, 435-436 & n.12 (2013) (generally “conduct involving only the use of nonthreatening words will not be sufficient to qualify a defendant as a first aggressor”).
The witness who testified to these observations, James Waitz, also testified that he saw nothing in the defendant’s hands at this exact moment, but the jury were not required to accept that testimony. There was no question that it was very dark where the fight took place, and there was evidence that the knife in the defendant’s possession had a black blade with a black handle.
The second sentence of Mass. R. Crim. R 25 (b) (2) provides: “If a verdict of guilty is returned, the judge may on motion set aside the verdict and order a new trial, or order the entry of a finding of not guilty, or order the entry of a
We are cognizant of the fact that a narrower scope of review applies to our analysis of second-degree murder convictions compared with our review of first-degree murder convictions under G. L. c. 278, § 33E, given that § 33E no longer provides plenary review by this court in cases where a defendant is convicted of murder in the second degree. See Commonwealth v. Maillet, 400 Mass. 572, 579 n.9 (1987) (comparing St. 1962, c. 453, which required review by this court under § 33E where defendant indicted for murder in first degree is convicted of murder in either first or second degree, with St. 1979, c. 346, § 2, which does not require review where defendant, so indicted, is convicted of murder in second degree). See also Commonwealth v. Gaulden, 383 Mass. 543, 553-554 (1981) (similar). One possible explanation for this disparity in treatment of the two degrees of murder is that those convicted of murder in the first degree are sentenced to life without the possibility of parole, whereas those convicted of murder in the second degree eventually become eligible for parole. See G. L. c. 265, § 2; G. L. c. 279, § 24.
The judge’s ruling consisted of two handwritten lines: “The motion is denied. The court declines to disturb the jury’s verdict.”
As just stated, we have never required a detailed explanation as a sine qua non of denying a motion to reduce a verdict, nor do we intend to do so now. That said, even a brief explanation of the judge’s rationale for denying a motion under rule 25 (b) (2) assists the understanding of the parties, the public, and the appellate courts of the judge’s decision, and especially in close or difficult cases, we urge judges to provide a statement articulating with some specificity their' reasons for denying a rule 25 (b) (2) motion. See L.L. v. Commonwealth, 470 Mass. 169, 182-183 (2014), quoting Long v. Wickett, 50 Mass. App. Ct. 380, 402 (2000) (even where judge has “broad discretion,” it is “essential . . . that a reviewing court have some basis for distinguishing between well-reasoned conclusions arrived at after a comprehensive consideration of all relevant factors, and mere boiler-plate approval phrased in appropriate language but unsupported by evaluation of the facts or analysis of the law”).
In other contexts, although not perfectly analogous to this case, we have remanded where it appeared necessary or at least desirable for additional explication from the trial or motion judge. See Commonwealth v. Sylvain, 466 Mass.
The third paragraph of G. L. c. 211, § 4A, provides:
“The supreme judicial court may also direct any cause or matter to be transferred from a lower court to it in whole or in part for further action or directions, and in case of partial transfer may issue such orders or directions in regards to the paid of such cause or matter not so transferred as justice may require.”
This exercise of jurisdiction requires us to remand the case to the Superior Court and then transfer it back to this court pursuant to our powers under G. L. c. 211, § 4A.
Reviewing convictions of murder in the second degree is familial' territory for this court, albeit more in the past than the present. Before 1979, the court’s review under § 33E extended to cases, like this one, that involved a conviction of murder in the second degree based on an indictment charging murder in the first degree. G. L. c. 278, § 33E, as amended through St. 1974, c. 457. See Gaulden, 383 Mass. at 553. In 1979, § 33E was amended to limit this court’s review function under that statute to convictions of murder in the first degree; under the rules of criminal procedure, trial judges in all criminal cases have “a power to enter a finding of a lesser degree of guilt in the same manner that this court has had such a power under ... § 33E, on the appeal of a capital case.” Id,
In Commonwealth v. Keough, 385 Mass. 314 (1982), this court affirmed the trial judge’s decision to reduce a verdict of murder in the second degree to manslaughter on facts that bear a substantial similarity to the facts here. We stated:
“We agree with the judge’s statement that ‘[tjhis is a tragic case in which a minor controversy between strangers exploded into the killing of a human being.’ A number of significant facts are undisputed. The judgment of the persons involved appears to have been affected by the consumption of alcohol. The defendant and the victim had had no previous confrontation. The defendant had the murder weapon in his possession. He did not leave to obtain it and return to confront the victim. At the crucial moment, the victim sought out the defendant for confrontation. There were four persons in the victim’s group and only two in the defendant’s. The entire incident was characterized by senseless conduct by both groups. There was no evidence of the defendant’s prior criminality.
“Although each case depends on a consideration of its particular circumstances, the judge’s conclusion here fits into the pattern of those cases involving senseless encounters in which, under G. L. c. 278, § 33E, we*218 have ordered the entry of a finding of a lesser degree of guilt.”
Id. at 320-321, and cases cited.
Justice Spina, joined by two Justices, concurred in pail and dissented in paid. He believed there should be no change to then-existing law regarding instructions to grand juries. See Commonwealth v. Walczak, 463 Mass. 808, 844 (2012) (Spina, J., concurring in part and dissenting in part).
By “similar types of grand jury proceedings,” we mean grand jury proceedings in which the Commonwealth seeks an indictment for murder and in which
We will ask the committee to report on the range of practices employed by the various district attorneys’ offices as well as the office of the Attorney General with respect to grand jury presentments; the reasons supporting the different practices; the substance of the instructions that grand juries receive from those district attorneys who currently provide them; and any recommended best practices.
The Attorney General indicates that, in general, only the judge’s instructions at empanelment of the grand jury are recorded, whereas a prosecutor’s subsequent instructions are not. It is this practice we seek to change by requiring that the entire grand jury proceeding, including all instructions by either a judge or a prosecutor, be placed on the record. We disagree with the Attorney General’s suggestion that such a practice may jeopardize the secrecy of the grand jury, because grand jury minutes are already required to be made available to the parties. See Mass. R. Grim. R 14 (a)(1) (A) (ii), as amended, 444 Mass. 1501 (2005).
Concurrence Opinion
(concurring). I agree that the evidence supports a verdict of murder in the second degree and that the prosecutor’s closing argument was not improper. I also agree with the approach of transferring the portion of the case concerning the denial of the defendant’s motion to reduce the verdict to the county court for review by Justice Gaziano, acting as single justice. I write separately because I believe that convening a study
I believe extending the Walczak protocol to adult murder cases is imprudent for a number of reasons. First and foremost, while the grand jury is an arm of the court and this court’s superintendence power reaches its proceedings, the manner of presentation of evidence to the grand jury rests with the executive branch, absent impairment of the integrity of the grand jury. Second, should the court intrude into grand jury proceedings in murder prosecutions, why should it not do so in armed assault with intent to murder cases when there is evidence of mitigation, or in indecent assault and battery cases when there is evidence that the touching was accidental or consensual? Third, will the Commonwealth now have to anticipate evidence of mitigation through the eyes of defense counsel or proactively investigate evidence of mitigation at the earliest stages of a prosecution? Finally, adopting such a rule will add a plethora of new motions and appeals relative to the quality or absence of the Commonwealth’s instructions. Trial judges are not infrequently reversed for failing to give a manslaughter instruction or because of error in instructions inadvertently shifting the burden of proof of mitigation to the defendant. Should Walczak be extended to adult murder cases, countless issues will be raised concerning the need for and quality of such instructions. While these issues are of paramount importance at trial, a grand jury proceeding is not a trial. For the past 236 years the grand jury has been an investigatory and accusatory body in this Commonwealth. Commonwealth v. Moran, 453 Mass. 880, 884 n.7 (2009). The convening of a study group will be but a first step in the erosion of that vital and historic function.