Model Jury Instructions on Homicide: IV. Murder in the first degree

Part IV of the Model Jury Instructions on Homicide

Murder in the first degree

There are two different degrees of murder: murder in the first degree and murder in the second degree. If you find the defendant guilty of murder, you shall decide the degree of murder.

The Commonwealth alleges that the defendant committed murder in the first degree on the following theories: [list theory or theories as follows: murder with deliberate premeditation, murder with extreme atrocity or cruelty, and/or murder in the commission or attempted commission of a felony punishable by a maximum sentence of life.]

To find the defendant guilty on this theory [any of these theories] of murder, you must be unanimous, that is, all the deliberating jurors must agree that the Commonwealth has met its burden of proving every required element of that theory beyond a reasonable doubt. You should check the appropriate box or boxes on the verdict slip as to each theory on which you agree unanimously.

If you are unable to agree unanimously that the Commonwealth has met its burden to prove beyond a reasonable doubt any [either] of these theories of murder in the first degree, you shall consider whether the Commonwealth has proved the defendant guilty beyond a reasonable doubt of murder in the second degree.  

[Where the jury are to be instructed on voluntary and/or involuntary manslaughter] 

If you are unable to agree unanimously that the Commonwealth has met its burden to prove beyond a reasonable doubt that the defendant is guilty of murder in the first degree or murder in the second degree, you shall consider whether the Commonwealth has proved the defendant guilty beyond a reasonable doubt of the lesser offense[s] of [voluntary manslaughter or involuntary manslaughter].^[111]

I will begin by instructing you on the elements [and additional requirements of proof] for each of these theories of murder in the first degree.  I will next instruct you on murder in the second degree. [I will then instruct you on voluntary manslaughter and involuntary manslaughter.]  I will then review the verdict slip with you.

A. Murder with deliberate premeditation

I will first define the elements of murder in the first degree with deliberate premeditation. To prove the defendant guilty of murder in the first degree with deliberate premeditation, the Commonwealth must prove beyond a reasonable doubt the following elements:

1. The defendant caused the death of [deceased's name].
2. The defendant intended to kill [deceased's name], that is, the defendant consciously and purposefully intended to cause [deceased's name] death.
3. The defendant committed the killing with deliberate premeditation, that is, he decided to kill after a period of reflection.
4. [Where there is evidence of self-defense or defense of another] The defendant did not act in proper self-defense or in the proper defense of another.
5. [Where there is evidence of mitigating circumstances] In addition to these elements, the Commonwealth must also prove that there were no mitigating circumstances. 

I will now discuss each of these requirements in more detail. The first element is that the defendant caused the death of [deceased's name]. A defendant's act is the cause of death where the act, in a natural and continuous sequence, results in death, and without which death would not have occurred.^[112]

The second element is that the defendant intended to kill [deceased's name], that is, the defendant consciously and purposefully intended to cause the death.^[113]

[Where there is evidence of accident]  

If you have a reasonable doubt as to whether the death was accidental, because the death was caused by a negligent, careless, or mistaken act of the defendant, or resulted from a cause separate from the defendant's conduct, you may not find that the Commonwealth has proved this element of intent to kill the deceased.^[114]

[Where there is evidence of transferred intent]

If the defendant intends to kill a person and, in attempting to do so, mistakenly kills another person, such as a bystander, the defendant is treated under the law as if he intended to kill the person who actually died. For example, if I aim and fire a gun at one person intending to kill him but instead mistakenly kill another person, the law treats me as if I intended to kill the person who actually died.^[115] My intent to kill the intended target is transferred to the person who actually died.^[116]

The third element is that the defendant committed the killing with deliberate premeditation, that is, he decided to kill after a period of reflection. Deliberate premeditation does not require any particular length of time of reflection. A decision to kill may be formed over a period of days, hours, or even a few seconds.^[117] The key is the sequence of the thought process: first, the consideration whether to kill; second, the decision to kill; and third, the killing arising from the decision.^[118] There is no deliberate premeditation where the action is taken so quickly that a defendant takes no time to reflect on the action and then to decide to do it.^[119]

[Where there is evidence of mental impairment or intoxication]  

In deciding whether the defendant intended to kill the deceased and whether he formed that intent with deliberate premeditation, you may consider any credible evidence that the defendant suffered from a mental impairment or was affected by his consumption of alcohol or drugs. A defendant may form the required intent and act with deliberate premeditation even if he suffered from a mental impairment or consumed alcohol or drugs,^[120] but you may consider such evidence in determining whether the Commonwealth has proved these elements.^[121]

[Where there is evidence of self-defense or defense of another]  

The next element is that the defendant did not act in proper self-defense or in the proper defense of another. I have already instructed you as to the circumstances under which a person properly may act in self-defense or in the defense of another.

[Where there is evidence of mitigating circumstances]  

Finally, the Commonwealth is also required to prove beyond a reasonable doubt that there were no mitigating circumstances. The law recognizes that in certain circumstances, which we refer to as mitigating circumstances, the crime is a lesser offense than it would have been in the absence of a mitigating circumstance. A killing that would otherwise be murder in the first or second degree is reduced to the lesser offense of voluntary manslaughter if the defendant killed someone under mitigating circumstances.   

Not every circumstance you may think to be mitigating is recognized as mitigating under the law.  In this case, the mitigating circumstance[s] that you must consider is/are: 

1. heat of passion on reasonable provocation;
2. heat of passion induced by sudden combat;
3. excessive use of force in self-defense or in defense of another.

To prove the defendant guilty of murder in the first degree with deliberate premeditation, the Commonwealth must prove beyond a reasonable doubt that there were no mitigating circumstances. I will instruct you on this (each of these) mitigating circumstance[s] in more detail later, when I discuss voluntary manslaughter.

B. Murder with extreme atrocity or cruelty

Next I will define the elements of murder in the first degree with extreme atrocity or cruelty.

[Where the Commonwealth has also charged murder in the first degree with deliberate premeditation]  

You shall consider this theory of murder in the first degree regardless of whether or not you find that the Commonwealth has proved murder in the first degree with deliberate premeditation.^[122]

To prove the defendant guilty of murder with extreme atrocity or cruelty, the Commonwealth must prove the following elements beyond a reasonable doubt:

1. The defendant caused the death of [deceased's name];
2. The defendant either:
   1. intended to kill [deceased's name]; or
   2. intended to cause grievous bodily harm to [deceased's name]; or
   3. intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result.^[123]
3. The killing was committed with extreme atrocity or cruelty.
4. [Where there is evidence of self-defense or defense of another] The defendant did not act in proper self-defense or in the proper defense of another.
5. [Where there is evidence of mitigating circumstances] In addition to these elements, the Commonwealth must also prove that there were no mitigating circumstances. 

I will now discuss each of these requirements in more detail. The first element is that the defendant caused the death of [deceased's name]. A defendant's act is the cause of death where the act, in a natural and continuous sequence, results in death, and without which death would not have occurred.^[124]

The second element is about the defendant's intent, which the Commonwealth must prove in at least one of three ways. These are that the defendant:

1. intended to kill [deceased's name]; or
2. intended to cause grievous bodily harm to [deceased's name]; or
3. intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result.

As you can see, as to this intent element, the Commonwealth satisfies its burden of proof if it proves the defendant's intent beyond a reasonable doubt in any one of those three ways.^[125]

[Where the jury were instructed on deliberate premeditation] 

The first way of proving intent—that the defendant intended to kill—is the same as the second element of murder in the first degree with deliberate premeditation. The second and third ways of proving intent are different from any element of murder in the first degree with deliberate premeditation.

[Where the jury were not instructed on deliberate premeditation] 

The first way of proving intent is that the defendant intended to kill [deceased's name], that is, the defendant consciously and purposefully intended to cause the death.

The second way is that the defendant intended to cause grievous bodily harm to [deceased's name]. Grievous bodily harm means severe injury to the body.^[126]

The third way is that the defendant intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result. Let me help you understand how to analyze this third way of proving the defendant's intent. You must first determine whether the defendant intended to perform the act that caused the death. If you find that the defendant intended to perform the act, you must then determine what the defendant himself actually knew about the relevant circumstances at the time he acted. Then you must determine whether, under the circumstances known to the defendant, a reasonable person would have known that the act created a plain and strong likelihood that death would result.^[127]

[Where there is evidence of accident]  

If you have a reasonable doubt as to whether the death was accidental, because the death was caused by a negligent, careless, or mistaken act of the defendant, or resulted from a cause separate from the defendant's conduct, you may not find that the Commonwealth has proved that the defendant intended to kill, intended to cause grievous bodily harm, or intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result.^[128]

[Where there is evidence of transferred intent] 

If the defendant intends to kill a person or cause him grievous bodily harm and in attempting to do so mistakenly kills another person, such as a bystander, the defendant is treated under the law as if he intended to kill or cause grievous bodily harm to the person who actually died.  For example, if I aim and fire a gun at one person intending to kill him but instead mistakenly kill another person, the law treats me as if I intended to kill the person who actually died.^[129]  My intent to kill or cause grievous bodily harm to the intended target is transferred to the person who actually died.^[130]

[Where there is evidence of mental impairment or intoxication]  

In deciding whether the defendant intended to kill, intended to cause grievous bodily harm, or intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result, you may consider any credible evidence that the defendant suffered from a mental impairment or was affected by his consumption of alcohol or drugs.^[131] A defendant may have the requisite intent even if he suffered from a mental impairment or consumed alcohol or drugs, but you may consider such evidence in determining whether the Commonwealth has proved this element.

The third element is that the killing was committed with extreme atrocity or cruelty. Extreme atrocity means an act that is extremely wicked or brutal, appalling, horrifying, or utterly revolting.^[132]  Extreme cruelty means that the defendant caused the person's death by a method that surpassed the cruelty inherent in taking a human life.^[133]  You must determine whether the method or means of killing is so shocking as to amount to murder with extreme atrocity or cruelty.^[134]  The inquiry focuses on the defendant's actions in terms of the manner and means of inflicting death, and on the resulting effect on the deceased.^[135]

In deciding whether the Commonwealth has proved beyond a reasonable doubt that the defendant caused the death with extreme atrocity or cruelty, you must consider the following factors:^[136]

1. Whether the defendant was indifferent to or took pleasure in the suffering of the deceased;^[137]
2. Whether the defendant's method or means of killing was reasonably likely to substantially increase or prolong the conscious suffering of the deceased;^[138] or
3. Whether the means used by the defendant were excessive and out of proportion to what would be needed to kill a person.^[139]  In considering whether the means used by the defendant were excessive and out of proportion to what would be needed to kill a person, you may consider:
   1. the extent of the injuries to the deceased;^[140]
   2. the number of blows delivered;^[141]
   3. the manner, degree, and severity of the force used;^[142]and
   4. the nature of the weapon, instrument, or method used.^[143]

You cannot make a finding of extreme atrocity or cruelty unless it is based on one or more of the factors I have just listed.^[144]

[Where there is evidence of only a single blow]  

A murder committed by a single blow may be extremely cruel or atrocious where there is evidence of one or more of these factors.^[145]

[Where there is evidence the defendant at the time of the offense had a mental impairment or was intoxicated]  

You may consider the defendant's mental condition at the time of the killing, including any credible evidence of mental impairment or the effect on the defendant of his consumption of alcohol or drugs, in determining whether the Commonwealth has proved beyond a reasonable doubt that the defendant committed the killing with extreme atrocity or cruelty.^[146]  A defendant may have committed the killing with extreme atrocity or cruelty even if he suffered from a mental impairment or consumed alcohol or drugs, but you may consider such evidence in determining whether the Commonwealth has proved this element.

[Where there is evidence of self-defense or defense of another]  

The fourth element is that the defendant did not act in proper self-defense or in the proper defense of another. I have already instructed you about when a person properly may act in self-defense or in the defense of another.

[Where there is evidence of mitigating circumstances]  

In addition to these elements, the Commonwealth must also prove that there were no mitigating circumstances. I will instruct you on mitigating circumstances later, when I discuss voluntary manslaughter.
 

C. Felony-murder in the first degree

Next, I will define the elements of felony-murder in the first degree. 

[Where other theories of murder in the first degree are charged]  

You shall consider this theory of murder in the first degree regardless of whether or not you find that the Commonwealth has proved murder in the first degree with deliberate premeditation, or with extreme atrocity or cruelty, or both. 

To prove the defendant guilty of felony-murder in the first degree, the Commonwealth must prove the following elements beyond a reasonable doubt:

1. The defendant committed or attempted to commit a felony with a maximum sentence of imprisonment for life.^[147]
2. The death was caused by an act of the defendant [or a person participating with him] in the commission or attempted commission of that felony.^{[148], [149]}
3. The act that caused the death occurred during the commission or attempted commission of that felony.^{[150], [151]}
4. The defendant:
   1. intended to kill [deceased's name]; or
   2. intended to cause grievous bodily harm to [deceased's name]; or
   3. intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result.^[152]

5. [Where there is evidence of self-defense or defense of another] The defendant did not act in proper self-defense or in the proper defense of another.

   [Note to Judge:  An instruction on self-defense is generally not warranted where the theory of murder is felony-murder alone, but might be warranted where the killing occurred during the defendant's escape or attempted escape, or where the defendant was unarmed and the deceased was the first to use deadly force.^[153]]

6. [Where there is evidence of mitigating circumstances]^[154]  In addition to these elements, the Commonwealth must also prove that there were no mitigating circumstances. 

I will now explain each element in more detail.  The first element is that the defendant committed or attempted to commit a felony with a maximum sentence of imprisonment for life.  The Commonwealth alleges that the defendant committed [or attempted to commit] [name of crime[s]].  I instruct you that this crime is a felony with a maximum sentence of life imprisonment. 

[Where there are multiple predicate felonies]  

You must unanimously agree on which felony, or felonies, the defendant committed to convict him under the theory of felony-murder.^[155]

In order for you to decide whether [name of the crime[s]] actually occurred in this case, I must instruct you on all elements of this [these] offense[s]. 

[Note to Judge:  Define all the elements of the predicate felony.  In appropriate cases, a definition of "attempt" must be included. If more than one felony is alleged, the jury must be instructed that they must be unanimous with regard to the underlying felony in order to return a verdict of guilty of felony-murder in the first degree.^[156]  Where an underlying felony has as one of its elements the use or possession of a weapon, the jury must be instructed that the defendant must have possessed a weapon or known that a joint venturer possessed a weapon, see pp. 19-21.]

[Where there is evidence the defendant at the time of the offense had a mental impairment or was intoxicated]  

You may consider the defendant's mental condition at the time of the killing, including any credible evidence of mental impairment or the effect on the defendant of his consumption of alcohol or drugs, in determining whether the defendant had the intent required in the underlying offense or the intent to kill, to cause grievous bodily harm, or to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result.^[157] A defendant may have the requisite intent even if he suffered from a mental impairment or consumed alcohol or drugs, but you may consider such evidence in determining whether the Commonwealth has proved this element.

[Merger instruction where (1) the underlying felony contains an element of assault and (2) the underlying felony, by its nature, does not have an intent or purpose separate and distinct from the act causing physical injury or death.^[158]]

The act of violence that is an element of the underlying felony cannot be the same act that caused the death. Where an act of violence is an element of the underlying felony, you may find felony-murder only if you find that act was separate and distinct from the violent act that resulted in the death. In this case, the Commonwealth alleges the following separate and distinct acts: [list qualifying underlying acts]. You may find felony-murder only if you find that the Commonwealth has proved beyond a reasonable doubt one of these separate and distinct acts. [If there was more than one separate and distinct act that may satisfy an element of the underlying felony, you may find the underlying felony only if you all unanimously find the same act beyond a reasonable doubt].

If you find the defendant guilty of felony-murder, I require you to answer the following question[s]. [Recite special question or questions specific to the case.]

The second element is that the killing was caused by an act of the defendant or a person participating with him in the commission or attempted commission of the underlying felony.

The third element is that the act that caused the death occurred during the commission or attempted commission of the felony.^[159]  The Commonwealth must prove beyond a reasonable doubt that the act that caused the death occurred during the commission of the felony and at substantially the same time and place.^[160] [A killing may be found to occur during the commission of the felony if the killing occurred as part of the defendant's effort to escape responsibility for the felony.]^[161]

The fourth element is that the defendant:

1. intended to kill [deceased's name]; or
2. intended to cause grievous bodily harm to [deceased's name]; or
3. intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result.

[If murder with extreme atrocity or cruelty is also charged, then the judge should explain the three prongs of malice in the following manner.]

As you can see, this fourth element is the same as the second element of murder with extreme atrocity or cruelty, which I explained earlier.  Just as for murder with extreme atrocity or cruelty, the Commonwealth satisfies its burden of proof if it proves any one of the three types of intent beyond a reasonable doubt.^[162]

[If murder with extreme atrocity or cruelty is not also charged, then the judge should explain the three prongs of malice in the following manner.]

As you can see, this fourth element has three different ways of proving the defendant's intent. The Commonwealth satisfies its burden of proof if it proves beyond a reasonable doubt the defendant's intent in any one of these three ways.

The first way—that the defendant intended to kill—is the same as the second element of murder in the first degree with deliberate premeditation. The second and third ways are different from any element of murder in the first degree with deliberate premeditation.

The second way of proving intent is that the defendant intended to cause grievous bodily harm to [deceased's name]. Grievous bodily harm means severe injury to the body.^[163]

The third way of proving intent is that the defendant intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result. Let me help you understand how to analyze this third way. You must first determine whether the defendant intended to perform the act that caused the death. If you find that he intended to perform the act, you must then determine what the defendant himself actually knew about the relevant circumstances at the time he acted. Then you must determine whether, under the circumstances known to the defendant, a reasonable person would have known that the act intended by the defendant created a plain and strong likelihood that death would result.^[164]

[Where there is evidence of accident]  

If you have a reasonable doubt as to whether the death was accidental, because the death was caused by a negligent, careless, or mistaken act of the defendant, or resulted from a cause separate from the defendant's conduct, you may not find that the Commonwealth has proved that the defendant intended to kill, intended to cause grievous bodily harm, or intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result.^[165]

[Where there is evidence of mental impairment or intoxication]  

In deciding whether the defendant intended to kill, intended to cause grievous bodily harm, or intended to do an act which, in the circumstances known to the defendant, a reasonable person would have known created a plain and strong likelihood that death would result, you may consider any credible evidence that the defendant suffered from a mental impairment or was affected by his consumption of alcohol or drugs.^[166]  A defendant may have the requisite intent even if he suffered from a mental impairment or consumed alcohol or drugs, but you may consider such evidence in determining whether the Commonwealth has proved this element.

[Where there is evidence of self-defense or defense of another]  

The fifth element is that the defendant did not act in proper self-defense or in the proper defense of another. I have already instructed you about when a person properly may act in self-defense or in the proper defense of another.

[Where there is evidence of mitigating circumstances]  

In addition to these elements, the Commonwealth must also prove that there were no mitigating circumstances. I will instruct you on mitigating circumstances later, when I discuss voluntary manslaughter. 
 

Footnotes

[111] Commonwealth v. Figueroa, 468 Mass. 204, 229 n.11 (2014).

[112] See Commonwealth v. Colas, 486 Mass. 831, 842 (2021) ("With respect to causation, the Commonwealth may establish that a defendant caused the touching 'by proving beyond a reasonable doubt that the defendant either directly caused or directly and substantially set in motion a chain of events that produced the serious injury in a natural and continuous sequence'" [citation omitted]); Commonwealth v. Rhoades, 379 Mass. 810, 825 (1980).

[113] See Commonwealth v. Zanetti, 454 Mass. 449, 455 (2009) ("mental state or intent for deliberately premeditated murder [is] an intent to kill").

[114] See Commonwealth v. Palmariello, 392 Mass. 126, 145 & n.4 (1984) (Commonwealth has burden of proof to show beyond reasonable doubt that death was not accident).

[115] However, the act of pointing a firearm at someone is not, standing alone, sufficient "use" of that firearm to infer an intent to kill where circumstances could support conflicting views and indicate either an "intent to kill" or an "intent to frighten and deter."  See Colas, 486 Mass. at 837.

[116] Commonwealth v. Taylor, 463 Mass. 857, 863 (2012) ("A transferred intent instruction provides that if a defendant intends to kill a person and in attempting to do so mistakenly kills another person, such as a bystander, the defendant is treated under the law as if he intended to kill the bystander"); Commonwealth v. Shea, 460 Mass. 163, 172-174 (2011) (discussing proper jury instructions on transferred intent); Commonwealth v. Fisher, 433 Mass. 340, 344 n.5 (2001), quoting Commonwealth v. Pitts, 403 Mass. 665, 669 (1989) ("To find murder based on a theory of transferred intent, the jury need only find that the defendant 'intended to kill one person and, in the course of an attempt to do so, killed another'").

[117] See Commonwealth v. Fernandez, 480 Mass. 334, 344 (2018) ("[T]o prove deliberate premeditation, the Commonwealth must show that 'the plan to kill was formed after deliberation and reflection. However, no particular length of time is required in order for deliberate premeditation to be found.'  The law requires that a plan to murder may be formed within a few seconds" [citations omitted]); Commonwealth v. Tucker, 189 Mass. 457, 487 (1905) (similar instruction).

[118] See Commonwealth v. McMahon, 443 Mass. 409, 418 (2005) (correct instruction explains that "sequence of events began with 'deliberation and premeditation, then the decision to kill, and lastly, the killing in furtherance of the decision'").

[119] See Commonwealth v. Stewart, 460 Mass. 817, 826 (2011) (proper to instruct "that the defendant's resolution to kill resulted from reflection over some span of time; and that the act could not have been undertaken so quickly as to preclude such reflection"); Commonwealth v. McInerney, 373 Mass. 136, 153-154 (1977).

[120] See Commonwealth v. Tejada, 484 Mass. 1, 6, cert. denied, 141 S. Ct. 441 (2020) ("Notwithstanding the evidence of the defendant's intoxication, the jury could have concluded that the defendant's statements and his use of a firearm at close range established an intent to kill"); Figueroa, 468 Mass. at 222 ("Where a defendant claims diminished capacity because of intoxication, the Commonwealth is required to prove only that the defendant was not so intoxicated that he was incapable of forming the requisite intent").

[121] Commonwealth v. Mercado, 456 Mass. 198, 207 (2010), quoting Commonwealth v. Sires, 413 Mass. 292, 300 (1992) ("'All that we have ever required' be said to juries about the effect of mental impairment on a defendant's intent or knowledge is 'satisfied by a simple instruction that the jury may consider credible evidence' of the mental impairment 'in deciding whether the Commonwealth had met its burden of proving the defendant's state of mind beyond a reasonable doubt'"). See Commonwealth v. Fernandes, 485 Mass. 172, 197 (2020), cert. denied, 141 S. Ct. 1111 (2021), quoting Commonwealth v. Lennon, 463 Mass. 520, 523 (2012) ("Evidence that the defendant consumed alcohol in proximity to the crime does not itself establish a resulting state of 'debilitating intoxication' such as could support reasonable doubt about the defendant's capacity to form the requisite criminal intent"); Commonwealth v. Herbert, 421 Mass. 307, 316 (1995) (instruction regarding intoxication warranted where "evidence raised a reasonable doubt whether the defendant was so intoxicated at the time of the incident that he was incapable of forming the intent that is a necessary element of the crimes charged").  Cf. Commonwealth v. Johnson, 435 Mass. 113, 121-122 (2001) (reversal due to erroneous instruction on premeditation where mental impairment was live issue).

[122] See Commonwealth v. Sosa, 493 Mass. 104, 115-119 (2023), cert. denied, 145 S. Ct. 306 (2024) (jury may find defendant guilty of murder in first degree on multiple theories).

[123] A finding that the defendant had the specific intent to commit an extremely atrocious or cruel murder is not required. Commonwealth v. Concepcion, 487 Mass. 77, 91, cert. denied, 142 S. Ct. 408 (2021), quoting Commonwealth v. Castillo, 485 Mass. 852, 865 (2020) ("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 and cruelty").

[124] See Rhoades, 379 Mass. at 825.

[125] Commonwealth v. Townsend, 453 Mass. 413, 428-429 (2009).

[126] See Commonwealth v. Reed, 427 Mass. 100, 105 (1998).

[127] See Commonwealth v. Robidoux, 450 Mass. 144, 161 n.8, 162 & n.9 (2007).

[128] See Palmariello, 392 Mass. at 145 & n.4 (Commonwealth has burden of proof to show beyond a reasonable doubt that death was not accident).

[129] However, the act of pointing a firearm at someone is not, standing alone, sufficient "use" of that firearm to infer an intent to kill where circumstances could support conflicting views and indicate either an "intent to kill" or an "intent to frighten and deter."  See Colas, 486 Mass. at 837.

[130] Taylor, 463 Mass. at 863 ("A transferred intent instruction provides that if a defendant intends to kill a person and in attempting to do so mistakenly kills another person, such as a bystander, the defendant is treated under the law as if he intended to kill the bystander"); Shea, 460 Mass. at 172-174 (discussing proper jury instructions on transferred intent);  Fisher, 433 Mass. at 344 n.5, quoting Pitts, 403 Mass. at 669 ("To find murder based on a theory of transferred intent, the jury need only find that the defendant 'intended to kill one person and, in the course of an attempt to do so, killed another'").

[131] See generally Mercado, 456 Mass. at 207-208; Herbert, 421 Mass. at 316; Sires, 413 Mass. at 300.

[132] See, e.g., Commonwealth v. Linton, 456 Mass. 534, 546–547 (2010); Commonwealth v. Perry, 432 Mass. 214, 219-220, 224-227 (2000).

[133] See Commonwealth v. Noeun Sok, 439 Mass. 428, 437 (2003) ("judge correctly impressed on the jury that '[e]xtreme cruelty means that the defendant caused the person's death by a method that surpassed the cruelty inherent in any taking of human life'" [emphasis in original]).

[134] See, e.g., Commonwealth v. Hunter, 416 Mass. 831, 837 (1994), quoting Commonwealth v. Connolly, 356 Mass. 617, 628, cert. denied, 400 U.S. 843 (1970) ("mode").

[135] See, e.g., Commonwealth v. Barros, 425 Mass. 572, 581 (1997), quoting Commonwealth v. Gould, 380 Mass. 672, 684 (1980) ("inquiry focuses both on the defendant's actions, in terms of the manner and means of inflicting death, and on the resulting effect on the victim").

[136] Castillo, 485 Mass. at 865-866 (revising factors articulated in Commonwealth v. Cunneen, 389 Mass. 216, 227 [1983]).  The revised Castillo factors apply prospectively to murder trials commenced after the decision issued.  Id. at 866.

[137] See, e.g., Commonwealth v. Roy, 464 Mass. 818, 825 (2013) (defendant mimicked victim's pleading while describing how he "choked her out"); Commonwealth v. Anderson, 445 Mass. 195, 202 (2005) (jury could infer that defendant shot victim at point blank range and expressed "indifference to the terror the victim experienced in those five minutes before he was shot"); Noeun Sok, 439 Mass. at 431.

[138] See, e.g., Linton, 456 Mass. at 547 (defendant's use of strangulation, "a method of killing that is by its nature slow and painful," increased victim's conscious suffering); Commonwealth v. Glass, 401 Mass. 799, 802–803 (1988) (defendant stabbed victim and twisted blade to inflict greater injury).

[139] See, e.g., Commonwealth v. Teixeira, 490 Mass. 733, 745 n.8 (2022), quoting Cunneen, 389 Mass. at 227 (evidence that both victims' hands were bound and that each was stabbed multiple times with great force was evidence of "disproportion between the means needed to cause death and those employed"); Commonwealth v. Moses, 436 Mass. 598, 601 (2002) (after victim "raised his arms in a gesture of surrender," defendant "shot at him seven times, hitting him four times.  Two wounds were potentially fatal").

[140] See, e.g., Commonwealth v. Barbosa, 457 Mass. 773, 802-803 (2010), cert. denied, 563 U.S. 990 (2011) (photograph depicting depressed skull fracture highly probative on extent of injury victim sustained).

[141] See, e.g., Teixeira, 490 Mass. at 745 n.8 (twenty-four stab wounds on one victim and multiple contusions and abrasions on both victims); Commonwealth v. Miller, 457 Mass. 69, 71 (2010) (evidence consistent with twenty-five blows from hammer to victim's head).

[142] Commonwealth v. Walters, 485 Mass. 271, 283 (2020) ("Photographs depicting the extent of a victim's injuries, such as the force applied and the number of wounds, may be probative of whether a defendant acted with deliberate premeditation or with extreme atrocity or cruelty").  See, e.g., Roy, 464 Mass. at 825 (victim was hit in back of head with hard, flat object); Commonwealth v. Carlson, 448 Mass. 501, 503 (2007) (defendant "stomped on [victim's] abdomen, kicked her in the groin, and slammed her head on the floor ten times"; autopsy revealed "'massive contusions' in the abdomen and genitalia that required a degree of force that might occur in an automobile accident").

[143] See, e.g., Teixeira, 490 Mass. at 745 n.8 (defendant used large knife to inflict fatal injuries); Commonwealth v. Garuti, 454 Mass. 48, 55 (2009) (defendant used special utility vehicle to strike former wife and then drive back over her).

[144] See Castillo, 485 Mass. at 865-866 (revising Cunneen factors to require consideration of defendant's conduct and precluding convictions based on only degree of victim's suffering). See also Teixeira, 490 Mass. at 745 n.8 (finding of extreme atrocity or cruelty supported by evidence of multiple factors).

[145] See Castillo, 485 Mass. at 860 & n.4.  See, e.g., Glass, 401 Mass. at 802–803 (defendant stabbed victim and twisted blade to inflict greater injury); Commonwealth v. Golston, 373 Mass. 249, 260 (1977), cert. denied, 434 U.S. 1039 (1978) (single blow with baseball bat showed "evidence of great and unusual violence in the blow, which caused a four-inch cut on the side of the skull"); Commonwealth v. Eisen, 358 Mass. 740, 746 (1971) (victim "died as the result of an extensive head wound inflicted by a heavy, blunt instrument, perhaps an axe, applied with moderate to severe force").

[146] See Concepcion, 487 Mass. at 91-92; Commonwealth v. Gonzalez, 469 Mass. 410, 421-422 (2014); Commonwealth v. Rutkowski, 459 Mass. 794, 798 (2011), citing Commonwealth v. Rosenthal, 432 Mass. 124, 130 n.7 (2000), and quoting Gould, 380 Mass. at 686 n.16.

[147] G. L. c. 265, § 1.  See, e.g., Commonwealth v. Quiles, 488 Mass. 298, 304 (2021), cert. denied, 142 S. Ct. 1237 (2022); Commonwealth v. Cannon, 449 Mass. 462, 471 (2007).  "[W]here any view of the evidence casts doubt on the defendant's intent to commit the predicate felony, an involuntary manslaughter instruction must be given." Commonwealth v. Tyler, 493 Mass. 752, 762 (2024).

[148] See Commonwealth v. Witkowski, 487 Mass. 675, 681 (2021) (causal connection between aggravated rape and killing); Commonwealth v. Alcequiecz, 465 Mass. 557, 566 (2013) (causal connection between armed burglary and killing).

[149] See Commonwealth v. Tejeda, 473 Mass. 269, 269-270, 279 (2015) (defendant not guilty of felony-murder where accomplice killed by robbery victim who was seeking to thwart commission of underlying felony); Commonwealth v. Balliro, 349 Mass. 505, 511, 515 (1965) (felony-murder does not reach victim "killed by someone resisting the commission of the felony"). See also Commonwealth v. Duke, 489 Mass. 649, 657-658 (2022) (limitation on felony-murder vicarious liability for fatal blow delivered by someone resisting crime not applicable where defendant shot at robbery victim and killed accomplice).

[150] G. L. c. 265, § 1.  See, e.g., Cannon, 449 Mass. at 471.

[151] Previously, it was described as an element of felony-murder, both in the first and second degrees, that the killing must have been a "natural and probable consequence" of the felony. See, e.g., Commonwealth v. Matchett, 386 Mass. 492, 505 (1982).  Since 1999, however, the Supreme Judicial Court has recommended that the language not be used, "as it is superfluous to the other elements of felony-murder."  Commonwealth v. Rolon, 438 Mass. 808, 818 n.11 (2003).  See Model Jury Instructions on Homicide at 67-68 n.8 (1999).

[152] Commonwealth v. Brown, 477 Mass. 805, 825 (2017) (Gants, C.J., concurring), cert. denied, 586 U.S. 826 (2018).

[153] An instruction on self-defense is generally not available to a defendant where the defendant committed a felony punishable by life imprisonment that provoked a victim to respond with deadly force.  See Commonwealth v. Rogers, 459 Mass. 249, 260, cert. denied, 565 U.S. 1080 (2011) ("Generally, in Massachusetts, one who commits an armed robbery cannot assert a claim of self-defense"); Commonwealth v. Vives, 447 Mass. 537, 544 n.6 (2006) ("The right to claim self-defense is forfeited by one who commits armed robbery"); Commonwealth v. Maguire, 375 Mass. 768, 773 (1978) ("it has been held that the right to claim self-defense may be forfeited by one who commits an armed robbery, even if excessive force is used by the intended victim").  The rationale for this rule is that the nature of the underlying felony marks the defendant as the "initiating and dangerous aggressor." Rogers, 459 Mass. at 260, quoting Commonwealth v. Garner, 59 Mass. App. Ct. 350, 363 n.14 (2003).  However, a self-defense instruction might be appropriate where the killing occurred during the defendant's escape or attempted escape, see Rogers, 459 Mass. at 260-261, or where the defendant was unarmed and the victim was the first to use deadly force.  See Commonwealth v. Chambers, 465 Mass. 520, 530 (2013) ("critical question in determining whether the Commonwealth proved that the defendant did not act in self-defense when he killed the victim was who first grabbed the kitchen knife that ultimately was the instrument of death, not who shouted first or who struck the first punch").  See generally id. at 528, quoting Model Jury Instructions on Homicide 28-29 & n.68 (2013) ("in the context of homicide, a defendant may lose the right to claim self-defense only if he 'was the first to use or threaten deadly force'").

[154] Whether mitigation is available will depend on the facts and the predicate felony. See Rogers, 459 Mass. at 260 ("Generally, in Massachusetts, one who commits an armed robbery cannot assert a claim of self-defense"); Commonwealth v. Randolph, 438 Mass. 290, 301 (2002) (victim's "response to a violent, armed assault on his wife in their dwelling cannot constitute provocation sufficient to mitigate a killing by the intruders"); Commonwealth v. Roderick, 429 Mass. 271, 279 (1999) (use of force by victim "[in] response to an attempted violent armed robbery cannot be considered legally adequate to provoke the robber into killing his intended victim").

[155] Quiles, 488 Mass. at 308.

[156] Commonwealth v. Wadlington, 467 Mass. 192, 208 (2014) ("Where a required element of felony-murder in the first degree is that the defendant committed or attempted to commit a felony with a maximum sentence of imprisonment for life . . . , the jury must agree as to the felony committed, even if each of the alternative underlying felonies are life felonies").

[157] See Fernandes, 485 Mass. at 197, quoting Lennon, 463 Mass. at 523 ("Evidence that the defendant consumed alcohol in proximity to the crime does not itself establish a resulting state of 'debilitating intoxication' such as could support reasonable doubt about the defendant's capability to form the requisite criminal intent"); Herbert, 421 Mass. at 316 (instruction regarding intoxication not warranted where "[n]othing in the evidence raised a reasonable doubt whether the defendant was so intoxicated at the time of the incident that he was incapable of forming the intent that is a necessary element of the crimes charged"). See, e.g., Commonwealth v. Rasmusen, 444 Mass. 657, 665-666 (2005).

[158] "The merger doctrine functions as a constraint on the application of the felony-murder rule" so that "not every assault that results in a death may serve as the predicate for felony-murder."  Commonwealth v. Fredette, 480 Mass. 75, 80-81 (2018).  See Commonwealth v. Morin, 478 Mass. 415, 430-431 (2017). Under the merger doctrine, if the only felony committed was the assault upon the victim that resulted in the victim's death, the assault merges with the killing and cannot be relied on by the Commonwealth to support felony-murder.

The merger doctrine does not apply "if the underlying predicate felony has an intent or purpose separate and distinct from the act causing physical injury or death." Fredette, 480 Mass. at 81. The crimes of robbery, rape, burglary, and kidnapping are examples of crimes that do not implicate the merger doctrine because each felony has an underlying intent or purpose that is independent from the act resulting in death.  See Commonwealth v. Holley, 478 Mass. 508, 520 (2017); Morin, 478 Mass. at 430-431; Commonwealth v. Oberle, 476 Mass. 539, 548 (2017); Commonwealth v. Christian, 430 Mass. 552, 556 (2000); Commonwealth v. Wade, 428 Mass. 147, 152 (1998); Commonwealth v. Quigley, 391 Mass. 461, 466 (1984), cert. denied, 471 U.S. 1115 (1985).

Not all felonies lacking an independent intent or purpose merge with the resulting homicide. Fredette, 480 Mass. at 84.  A felony does not merge with the killing if the conduct constituting the felony is separate and distinct from the act of violence that caused the victim's death. Id. See Commonwealth v. Bell, 460 Mass. 294, 301 (2011), citing Commonwealth v. Gunter, 427 Mass. 259, 273-274 (1998) (no merger between homicide and predicate felony of armed assault in dwelling where defendant assaulted multiple occupants in dwelling in addition to homicide victim); Commonwealth v. Kilburn, 438 Mass. 356, 358-359, 362 (2003) (no merger between fatal shooting and predicate felony of armed assault in dwelling based on evidence of earlier assault on victim).  Contrast Commonwealth v. Stokes, 460 Mass. 311, 314 n.8 (2011) (armed home invasion could not serve as predicate felony because act of pointing firearm at victim in course of firing fatal shot not sufficiently separate from shooting).

Where the murder indictment does not specify an independent felonious assault and there is a risk that the jury may find the underlying felony to include the assault that resulted in the victim's death, the Commonwealth, in advance of trial, should identify the independent felonious assault or assaults that it intends to rely on at trial to prove felony-murder.  For instance, if the underlying felony is armed assault in a dwelling, and two other persons apart from the homicide victim were in the dwelling at the time of the armed assault, the judge must explain that, to prove this first element of felony-murder, the Commonwealth must prove beyond a reasonable doubt the felony of armed assault in a dwelling of a person other than the homicide victim.  See Commonwealth v. Phap Buth, 480 Mass. 113, 118, cert. denied, 586 U.S. 1041 (2018), quoting Fredette, 480 Mass. at 85 (error to not instruct jury that predicate felony of armed home invasion required determination that crime consisted of conduct "separate and distinct from the conduct necessary to kill the victim").

To diminish the risk of confusion, the verdict form may require the jury to specify the person (or persons) other than the homicide victim whom they concluded was (or were) assaulted. See Gunter, 427 Mass. at 274 ("Absent specification of an independent felonious assault in the murder indictment or absent a separate indictment on an independent assault, . . . it is advisable in the future that the prosecution seek jury questions specifying the independent felonious assault pursuant to G. L. c. 265, § 18A, that it contends supports a felony-murder conviction").  

[159] See, e.g., Roderick, 429 Mass. at 277 (felony-murder applies where killing occurred during commission of or attempt to commit felony).

[160] See Commonwealth v. Tillis, 486 Mass. 497, 508 (2020); Morin, 478 Mass. at 422; Commonwealth v. Ortiz, 408 Mass. 463, 466 (1990).

[161] See Commonwealth v. Gordon, 422 Mass. 816, 850 (1996), quoting Ortiz 408 Mass. at 466.

[162] See Townsend, 453 Mass. at 428-429 (under extreme atrocity or cruelty theory, malice may be satisfied by any one of three prongs).

[163] See Reed, 427 Mass. at 105.

[164] See Robidoux, 450 Mass. at 161 n.8, 162 n.9.

[165] See Brown, 477 Mass. at 835 (Gants, C.J., concurring) ("The armed robbers who accidently discharged a fatal shot while vaulting over the counter or when struck by the victim's baseball bat likely could not be found guilty of murder in the first degree because their intent with respect to the killing probably did not satisfy any of the three prongs of malice").

[166] See generally Mercado, 456 Mass. at 207-208; Herbert, 421 Mass. at 316; Sires, 413 Mass. at 300.

Date published:	March 30, 2026