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 first degree murder, 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 offenses of voluntary manslaughter or involuntary manslaughter.[99]

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 premediation

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 [victim's name].
  2. The defendant intended to kill [victim's name], that is, the defendant consciously and purposefully intended to cause [victim'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 [victim'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.[100]

The second element is that the defendant intended to kill [the victim], that is, the defendant consciously and purposefully intended to cause [the victim's] death.[101]

[Where there is evidence of accident]  If you have a reasonable doubt as to whether the victim's 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 victim.[102]

[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 actual victim.  This is referred to as transferred intent under the law.  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 actual victim. My intent to kill the intended victim is transferred to the actual victim.[103]

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.[104] 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.[105] 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 decides to do it.[106]

[Where there is evidence of mental impairment or consumption of alcohol or drugs]  In deciding whether the defendant intended to kill the victim and whether he formed that intent with deliberate premeditation, you may consider any credible evidence that the defendant suffered from a mental impairment[107] 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,[108] but you may consider such evidence in determining whether the Commonwealth has proved these elements.[109]

[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 a 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.[110]

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 [victim's name];

     2.  The defendant either:

     a.  intended to kill [victim's name]; or

     b.  intended to cause grievous bodily harm to [victim's name]; or

     c.  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.

     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 [victim'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.[111]

The second element is that the defendant:

a.  intended to kill [victim's name]; or

b.  intended to cause grievous bodily harm to [victim's name]; or

c.  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, this second element has three sub-elements, which I shall call prongs, and the Commonwealth satisfies its burden of proof if it proves any one of the three prongs beyond a reasonable doubt.[112]

The first prong – 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 prongs are different from any element of murder in the first degree with deliberate premeditation.

The second prong is that the defendant intended to cause grievous bodily harm to [victim's name].  Grievous bodily harm means severe injury to the body.[113]

The third prong 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 prong.  You must first determine whether the defendant intended to perform the act that caused the victim's 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.[114]

[Where there is evidence of accident]  If you have a reasonable doubt as to whether the victim's 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.[115]

[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 actual victim.  This is referred to as transferred intent under the law.  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 actual victim.  My intent to kill or cause grievous bodily harm to the intended victim is transferred to the actual victim.[116]

[Where there is evidence of mental impairment or consumption of alcohol or drugs]  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.[117]

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.[118] Extreme cruelty means that the defendant caused the person's death by a method that surpassed the cruelty inherent in any taking of a human life.[119] You must determine whether the method or mode of a killing is so shocking as to amount to murder with extreme atrocity or cruelty.[120] The inquiry focuses on the defendant's action in terms of the manner and means of inflicting death, and on the resulting effect on the victim.[121]

In deciding whether the Commonwealth has proved beyond a reasonable doubt that the defendant caused the death of the deceased with extreme atrocity or cruelty, you must consider the following factors:[122]

  1. whether the defendant was indifferent to or took pleasure in the suffering of the deceased;[123]
  2. the consciousness and degree of suffering of the deceased;[124]
  3. the extent of the injuries to the deceased;[125]
  4. the number of blows delivered;[126]
  5. the manner, degree, and severity of the force used;[127]
  6. the nature of the weapon, instrument, or method used;[128] and
  7. the disproportion between the means needed to cause death and those employed.[129] This seventh factor refers to whether the means used were excessive and out of proportion to what would be needed to kill a person.

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.[130]

[Where there is evidence the defendant at the time of the offense had a mental impairment or was under the influence of alcohol or drugs]  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.[131]

[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 have already mentioned that 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 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.[132] 
  2. The death was caused by an act of the defendant [or a person participating with him] in the commission or attempted commission of the underlying felony.[133]
  3. The act that caused the death occurred during the commission or attempted commission of the underlying felony.[134],[135]
  4. The defendant:
    1. intended to kill [victim's name]; or
    2. intended to cause grievous bodily harm to   [victim'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.[136]

     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 victim was the first to use deadly force.[137]]

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

[Note to Judge:  We can imagine few circumstances where an instruction regarding the absence of mitigating circumstances would be warranted by the evidence where the killing occurred during the alleged commission of a felony punishable by life imprisonment.]

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.

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] underlying offense[s].

[Note to Judge:  Define all the elements of the substantive felonies alleged.  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.[138] 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. 17-18.]

[Where there is evidence the defendant at the time of the offense had a mental impairment or was under the influence of alcohol or drugs]  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, 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.[139]

[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.  The crimes of robbery, rape, and kidnapping are examples of crimes that do not implicate the merger doctrine because each felony has an underlying intent that is independent from the act resulting in death:  robbery (intent to steal),[140]rape (intent to engage in sexual intercourse, without consent),[141] and kidnapping (intent to forcibly confine or imprison)[142],[143]]

The act of violence that is an element of the underlying felony may not be the same act that caused the victim's death.[144] Where an act of violence is an element of the underlying felony, you may find felony-murder only if you find an act that is separate and distinct from the violent act that resulted in the victim's death.[145] 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 unanimously find the Commonwealth has proved the same act beyond a reasonable doubt.[146]]

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.[147]

The third element is that the act that caused the death occurred during the commission or attempted commission of the felony.[148] 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.[149] [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.][150]

The fourth element is that the defendant:

a.  intended to kill [victim's name]; or

b.  intended to cause grievous bodily harm to [victim’s name]; or

c.  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 prongs beyond a reasonable doubt.[151]

[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 sub-elements, which I shall call prongs, and the Commonwealth satisfies its burden of proof if it proves any one of the three prongs beyond a reasonable doubt.[152]

The first prong –- 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 prongs are different from any element of murder in the first degree with deliberate premeditation.

The second prong is that the defendant intended to cause grievous bodily harm to [victim's name].  Grievous bodily harm means severe injury to the body.[153]

The third prong 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 prong.  You must first determine whether the defendant intended to perform the act that caused the victim's 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.[154]     

[Where there is evidence of mental impairment or consumption of alcohol or drugs] 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.[155]

[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.

 [Note to Judge:  As a consequence of the Supreme Judicial Court's decision in Commonwealth v. Brown, 477 Mass. 805, 832 (2017), there is no longer a crime of second degree felony-murder.  However, a defendant charged with murder in the first degree on a theory of felony-murder is likely to be entitled to an instruction on second degree murder as a lesser included offense to first degree murder based upon evidence that the defendant caused the victim's death with an intent that satisfied one or more of the three prongs of malice. The defendant may also be entitled to an instruction on voluntary manslaughter or involuntary manslaughter if any view of the evidence supports these lesser included offenses.]

Footnotes

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

[100] See Commonwealth v. Rhoades, 379 Mass. 810, 825 (1980).

[101] See Commonwealth v. Zanetti, 454 Mass. at 455 ("mental state or intent for deliberately premeditated murder [is] an intent to kill"); Commonwealth v. Jenks, 426 Mass. 582, 585 (1998) ("Where only deliberate premeditation is offered to the jury as a basis for murder in the first degree, the inclusion of instructions on second and third prong malice, even if justified for other reasons, could be confusing . . . ").

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

[103] 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. Castro, 438 Mass. 160, 165-166 (2002), quoting Commonwealth v. Fisher, 433 Mass. 340, 344-345 (2001) ("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'").

[104] See, e.g., Commonwealth v. Gambora, 457 Mass. 715, 733 (2010), quoting Commonwealth v. Coleman, 434 Mass. 165, 168 (2001) ("no particular period of reflection is required, and . . . a plan to murder may be formed in seconds").  See Commonwealth v. Tucker, 189 Mass. 457, 487 (1905) (including extracts from instructions to jury on this subject in numerous earlier trials).

[105] 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").

[106] See Commonwealth v. Stewart, 460 Mass. 817, 826 (2012) (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).

[107] Commonwealth v. The Ngoc Tran, 471 Mass. 179, 187 (2015) ("we cannot say that the term 'mental impairment' is so obscure that a reasonable jury would be unable to rely on the usual and accepted meanings of these words to determine whether the defendant was capable of forming the required intent").

[108] Commonwealth v. 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"). 

[109] Commonwealth v. Mercado, 456 Mass. at 207, 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. 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).

[110] See Commonwealth v. Candelario, 446 Mass. 847, 859-860 (2006), citing Commonwealth v. Caputo, 439 Mass. 153, 168 (2003) (jury may find defendant guilty on any theory of murder in first degree advanced by Commonwealth).

[111] See Commonwealth v. Rhoades, 379 Mass. at 825.

[112] See Commonwealth v. Townsend, 453 Mass. 413, 428-429 (2009) (under extreme atrocity or cruelty theory the second element may be satisfied by any one of three prongs).

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

[114] See Commonwealth v. Robidoux, 450 Mass. 144, 162 nn.8 & 9 (2007).

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

[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. Castro, 438 Mass. 160, 165-166 (2002), quoting Commonwealth v. Fisher, 433 Mass. 340, 344-345 (2001) ("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 generally Commonwealth v. Mercado, 456 Mass. at 207-208; Commonwealth v. Herbert, 421 Mass. at 316; Commonwealth v. Sires, 413 Mass. at 300.

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

[119] See Commonwealth v. 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]).

[120] 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").

[121] See, e.g., Commonwealth v. Barros, 425 Mass. at 581, 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"). 

[122] Commonwealth v. Linton, 456 Mass. at 536 n.10 (approving these factors as defined in Commonwealth v. Cunneen, 389 Mass. at 227).  See Commonwealth v. Akara, 465 Mass. at 259-260; Commonwealth v. Stroyny, 435 Mass. 635, 651 (2002).

[123] 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) (defendant bragged about brutal murder after crime); Commonwealth v. Sok, 439 Mass. at 431.

[124] See, e.g., Commonwealth v. Linton, 456 Mass. at 546–547 (victim consciously suffered as she was strangled to death); Choy v. Commonwealth, 456 Mass. 146, 151 (2010).

[125] See, e.g., Commonwealth v. Barbosa, 457 Mass. at 802-803 (photograph depicting depressed skull fracture highly probative on extent of injury victim sustained).

[126] See, e.g., Commonwealth v. Miller, 457 Mass. 69, 71 (2010) (evidence consistent with twenty-five blows from hammer to victim's head).

[127] See, e.g., Commonwealth v. Roy, 464 Mass. at 825 (victim was hit in back of head with hard, flat object); Commonwealth v. Carlson, 448 Mass. 501, 502-503 (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").

[128] See, e.g., Commonwealth v. Garuti, 454 Mass. 48, 55 (2009) (defendant used special utility vehicle to strike former wife and then drive back over her).

[129] See, e.g., Commonwealth v. Moses, 436 Mass. 598, 601 (2002) (after victim raised arms in act of surrender, defendant shot at victim seven times, hitting him four times; two wounds were potentially fatal). 

[130] See Commonwealth v. Akara, 465 Mass. at 259-260, quoting Commonwealth v. Whitaker, 460 Mass. 409, 417-418 (2011), and Commonwealth v. Szlachta, 463 Mass. 37, 46 (2012) ("Although no single Cunneen factor is 'indispensible' to a determination of extreme atrocity or cruelty . . . , conviction of murder in the first degree on a theory of extreme atrocity or cruelty must be based on evidence of at least one of the [Cunneen] factors"); Commonwealth v. Stroyny, 435 Mass. at 651 ("reasonable juror would have understood that the Commonwealth bore the burden of proving at least one of the Cunneen factors beyond a reasonable doubt").  See also Commonwealth v. Smith, 460 Mass. 318, 323 (2011), citing Commonwealth v. Hunter, 416 Mass. at 836–837 (error to instruct that extreme atrocity or cruelty is not limited to factors defined in Commonwealth v. Cunneen, 389 Mass. at 227).

[131] See 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 (2000), and Commonwealth v. Gould, 380 Mass. at 683-686.

[132] G. L. c. 265, § 1. See, e.g., Commonwealth v. Cannon, 449 Mass. 462, 471 (2007).

[133] See Commonwealth v. Tejeda, 473 Mass. 269, 269-270, 279 (2015) (defendant not guilty of felony-murder where accomplice was killed by robbery victim who was seeking to thwart commission of underlying felony).

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

[135] 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).

[136] Commonwealth v. Brown, 477 Mass. 805, 825 (2017). 

[137] 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 (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."  Commonwealth v. 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 Commonwealth v. 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. at 530 ("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 Commonwealth v. Chambers, 465 Mass. at 528 ("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"). 

[138] Commonwealth v. Wadlington, 467 Mass. 192, 208 n.14 (2014) ("[w]here 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").

[139] Commonwealth v. Herbert, 421 Mass. at 316 (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").  See, e.g., Commonwealth v. Rasmusen, 444 Mass. 657, 665-666 (2005).

[140] See Commonwealth v. Christian, 430 Mass. 552, 556 (2000) ("[w]e can envision no situation in which an armed robbery would not support a conviction of [felony-murder]").  See also Commonwealth v. Morin, 478 Mass. 415, 430-431 (2017) (merger instruction was not required where underlying felony in felony- murder was unarmed robbery).   

[141] See Commonwealth v. Wade, 428 Mass. 147, 152 (1998) ("[T]he intent to commit the rape, not the intent to inflict serious bodily harm, was the substitute for the malice requirement of murder").

[142] See Commonwealth v. Oberle, 476 Mass. 539, 548 (2017)("[T]he essential element of kidnapping is not the [assaultive element] but rather the defendant's forcible or secret confinement or imprisonment of the victim against [her] will").

[143] Under the merger doctrine, if the only felony committed was the assault upon the victim which resulted in the victim's death, the assault merges with the killing and cannot be relied on by the Commonwealth to support felony-murder.  In Commonwealth v. Morin, 478 Mass. 415, 430-431 (2017), the Supreme Judicial Court declared:

"We have relied upon the merger doctrine to ensure that "not every assault that results in death will serve as a basis for murder in the first degree on the theory of felony-murder."  Commonwealth v. Scott, 472 Mass. 815, 819 (2015).  The Commonwealth therefore is required to prove that "the conduct which constitutes the felony be 'separate from the acts of personal violence which constitute a necessary part of the homicide itself.'"  Commonwealth v. Gunter, 427 Mass. 259, 272 (1998), S.C., 459 Mass. 480 (1998), cert. denied, 565 U.S. 868 (2011), quoting Commonwealth v. Quigley, 391 Mass. 461, 466 (1984), cert. denied, 471 U.S. 1115 (1985).  See Commonwealth v. Bell, 460 Mass. 294, 301 (2011) (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, 362 (2003) (no merger between fatal shooting and predicate felony of armed assault in dwelling based on evidence of earlier assault on victim)."

The merger doctrine does not apply "where the predicate felony has an intent or purpose separate and distinct from the act causing physical injury or death."  Morin, supra at 431.  Thus, the felony of armed robbery may serve as the underlying felony for felony-murder and is not barred by the merger doctrine because stealing or taking the property of another is an element of armed robbery.  See Commonwealth v. Christian, 430 Mass. 552, 556 (2000).  A robber who kills the victim may be found guilty of felony-murder regardless of whether he shot the victim before or after taking the victim's property.  See id.  See Commonwealth v. Holley, 478 Mass. 508 (2017).  Similarly, the merger doctrine does not apply where the underlying felony is robbery, rape, or kidnapping.  See Morin, supra.

Where the underlying felony contains an element of assault, the judge must ensure that the felony found by the jury is independent of the act that resulted in the death of the victim.  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. 

To diminish the risk of confusion, the verdict form may require the jury to specify the person (or persons) other than the homicide victim that they concluded was (or were) assaulted.  See Commonwealth v. 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, however, 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"). 

If the underlying felony is armed assault in a dwelling or armed home invasion and the homicide victim was alone in the dwelling, but the Commonwealth contends that there was an earlier assault of the homicide victim in the dwelling that did not cause his death prior to the assault that did cause his death, the judge in instructing the jury must explain that, to satisfy the first element of felony-murder, the Commonwealth must prove beyond a reasonable doubt the felony of armed assault in a dwelling or armed home invasion, with the assault being the first alleged assault of the victim, not the assault that allegedly resulted in the victim's death.  See Commonwealth v. Kilburn, 438 Mass. at 359-360. 

[144] See, e.g., Commonwealth v. Kilburn, 438 Mass. at 359-360; Commonwealth v. Gunter, 427 Mass. at 272-274.

[145] See, e.g., Commonwealth v. Morin, 478 Mass. at 430-431; Commonwealth v. Holley, 478 Mass. at 519-520.

[146] Commonwealth v. Morin, 478 Mass. at 430-431; Commonwealth v. Holley, 478 Mass. at 519.

[147] Commonwealth v. Tejeda, 473 Mass. at 269-270, 279 (defendant not guilty of felony-murder where accomplice was killed by robbery victim who was seeking to thwart commission of underlying felony).

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

[149] See Commonwealth v. Gunter, 459 Mass. at 488, quoting Commonwealth v. Ortiz, 408 Mass. 463, 466 (1990).

[150] See Commonwealth v. Gordon, 422 Mass. 816, 850 (1996).

[151] See Commonwealth v. Townsend, 453 Mass. 413, 428-429 (2009) (under extreme atrocity or cruelty theory the fourth element may be satisfied by any one of three prongs).

[152] See Commonwealth v. Townsend, 453 Mass. at 428-429 (under extreme atrocity or cruelty theory the fourth element may be satisfied by any one of three prongs).

[153] See Commonwealth v. Reed, 427 Mass. at 105.

[154] See Commonwealth v. Robidoux, 450 Mass. at 162 nn.8 & 9.

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

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Date published: April 25, 2018

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