Murder in the second degree

In order to prove murder in the second degree, the Commonwealth must prove the following elements:[156]

  1. The defendant caused the death of [victim's name].
  2. 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.[157]

[Note to Judge:  There is no longer a separate theory of felony-murder in the second degree.  See Commonwealth v. Brown, 477 Mass. 805, 832 (2017).] 

     3.  [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.

     4.  [Where there is evidence of mitigating circumstances] In addition to these elements, the Commonwealth must also prove that there were no mitigating circumstances.  If the Commonwealth proves all the required elements, but fails to prove beyond a reasonable doubt that there were no mitigating circumstances, you must find the defendant not guilty of murder, but you shall return a verdict of voluntary manslaughter.

[Where the defendant is charged with murder in the first degree with extreme atrocity or cruelty] The requirements of proof for murder in the second degree are the same as for murder in the first degree with extreme atrocity or cruelty, but without the element that the killing was committed with extreme atrocity or cruelty. 

[Note to Judge:  Where the defendant is not charged with murder in the first degree with extreme atrocity, the judge must give the detailed instructions for each element of murder in the second degree that are set forth in the instructions for murder in the first degree with extreme atrocity or cruelty.]

Footnotes

[156] Commonwealth v. Berry, 466 Mass. 763, 772 n.16 (2014) ("[t]he intent necessary to be proved for a conviction of murder in the first degree committed with extreme atrocity or cruelty, defined by three alternate prongs, is the same as the intent necessary for murder in the second degree").

[157] See Commonwealth v. Earle, 458 Mass. 341, 346-347 & n.9, 350 (2010) (finding evidence legally insufficient to support conviction for murder in second degree under theory that parent's intentional failure to act, in circumstances known to parent, created "plain and strong likelihood" of child's death); Commonwealth v. Grey, 399 Mass. 469, 470 n.1, 472 n.4 (1987) (in instructing jury regarding whether, in circumstances known to defendant, reasonably prudent person would have known of plain and strong likelihood of death, judge erred in instructing jury that malice was determined by objective standard, as objective reasonable person test is applied to circumstances defendant knew).  See also Commonwealth v. Lyons, 444 Mass. 289, 293-294 (2005) (discussing distinction between murder in second degree based on "plain and strong likelihood of death" and involuntary manslaughter based on "high degree of likelihood of substantial harm"; concluding judge erred in reducing conviction to involuntary manslaughter).

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John Adams Courthouse
One Pemberton Square - 1M
Boston, MA 02108
Date published: April 25, 2018

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