Involuntary manslaughter

[Where the Commonwealth has proceeded on the theory of involuntary manslaughter caused by wanton or reckless conduct] [177] Involuntary manslaughter is an unlawful killing unintentionally caused by wanton or reckless conduct.[178]

[Where the Commonwealth has proceeded on the theory of involuntary manslaughter as an unlawful killing unintentionally caused by a battery]  Involuntary manslaughter is [also] an unlawful killing unintentionally caused by a battery that the defendant knew or should have known created a high degree of likelihood that substantial harm will result to another.[179]

[Note to judge:  If a defendant is charged with felony-murder in the first degree, but the evidence would support a finding of involuntary manslaughter rather than murder, the judge must instruct the jury that they can find the defendant guilty of involuntary manslaughter.[180]]

A. Involuntary manslaughter caused by wanton or reckless conduct [181]

Wanton or reckless conduct is intentional conduct that created a high degree of likelihood that substantial harm will result to another person.  Wanton or reckless conduct usually involves an affirmative act.[182] An omission or failure to act may constitute wanton or reckless conduct where the defendant has a duty to act.[183]

[Where the Commonwealth alleges that the defendant committed an affirmative act that was wanton or reckless]  To prove that the defendant is guilty of involuntary manslaughter because of wanton or reckless conduct, the Commonwealth must prove the following elements beyond a reasonable doubt:

  1. The defendant caused the victim's death;[184]
  2. The defendant intended the conduct that caused the victim's death;[185]
  3. The defendant's conduct was wanton or reckless;[186]
  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.

I will now discuss each element 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.[187]

The second element is that the defendant intended the conduct that caused the death.[188] The Commonwealth is not required to prove that the defendant intended to cause the death.[189]

The third element is that the defendant's conduct was wanton or reckless.[190] Wanton or reckless conduct is conduct that creates a high degree of likelihood that substantial harm will result to another.[191] It is conduct involving a grave risk of harm to another that a person undertakes with indifference to or disregard of the consequences of such conduct.[192] Whether conduct is wanton or reckless depends either on what the defendant knew or how a reasonable person would have acted knowing what the defendant knew.[193] If the defendant realized the grave risk created by his conduct, his subsequent act amounts to wanton or reckless conduct whether or not a reasonable person would have realized the risk of grave danger.[194] Even if the defendant himself did not realize the grave risk of harm to another, the act would constitute wanton or reckless conduct if a reasonable person, knowing what the defendant knew, would have realized the act posed a risk of grave danger to another.[195] 

It is not enough for the Commonwealth to prove the defendant acted negligently, that is, in a manner that a reasonably careful person would not have acted.[196] The Commonwealth must prove that the defendant's actions went beyond negligence and amounted to wanton or reckless conduct as I have defined that term.

[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 as to when a person properly may act in self-defense or in the defense of another.

[Where there is evidence of mental impairment or consumption of alcohol or drugs] In deciding whether the defendant knew, or should have known, his conduct created a high degree of likelihood that substantial harm would result to another, you may consider any credible evidence that the defendant suffered from a mental impairment or was affected by his consumption of alcohol or drugs.[197] A defendant may have the requisite knowledge 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 the Commonwealth alleges that the defendant's failure to act was wanton or reckless] An intentional omission or failure to act that creates a high degree of likelihood that substantial harm will result to another may constitute involuntary manslaughter where the defendant has a duty to act.[198] Such a duty may arise out of a special relationship.[199] A duty may also arise where a person creates a situation that poses a grave risk of death or serious injury to another.[200] When such a duty is owed, a failure to act that creates a high degree of likelihood that substantial harm will result to another is wanton or reckless.[201] To prove that the defendant is guilty of involuntary manslaughter by reason of a wanton or reckless failure to act, the Commonwealth must prove beyond a reasonable doubt the following elements:

  1. There was a special relationship between the defendant and the victim that gave rise to a duty of care,[202] or the defendant created a situation that posed a grave risk of death or serious injury to another;[203]
  2. The defendant's failure to act caused the victim's death;[204]
  3. The defendant intentionally failed to act;[205]
  4. The defendant's failure to act was wanton or reckless.[206] 

I will now discuss each element in more detail. 

The first element is that there was a special relationship between the defendant and the victim that gave rise to a duty of care[207] or the defendant created a situation that posed a grave risk of death or serious injury to another.[208] I instruct you that the relationship between [identify specific relationship, e.g., parent and minor child] is a special relationship that gives rise to a duty of care.[209] If you find that the defendant had this relationship with the victim, then you shall find that the defendant had a special relationship with the victim that gave rise to a duty of care.

The second element is that the defendant's failure to act caused the death of [victim's name]. A defendant's failure to act is the cause of death where the failure to act, in a natural and continuous sequence, results in death, and without which death would not have occurred.[210]

The third element is that the defendant intentionally failed to act.[211] The Commonwealth is not required to prove that the defendant intended to cause the death.[212]

The fourth element is that the defendant's failure to act was wanton or reckless.[213] A failure to act is wanton or reckless where there is a duty to prevent probable harm to another, and the defendant could have taken reasonable steps to minimize the risk to the person to whom the duty is owed.[214] A failure to act that is wanton or reckless involves a high degree of likelihood that substantial harm will result to the person to whom the duty is owed.[215] It is a failure to act that amounts to indifference to or disregard of the consequences to the person to whom the duty is owed.[216] Whether the defendant's failure to act was wanton or reckless depends on the circumstances and the steps that a person could reasonably be expected to take to minimize the risk to the person to whom the duty is owed.[217]  Wanton or reckless conduct depends either on what the defendant knew, or how a reasonable person would have acted knowing what the defendant knew.[218] If the defendant realized the grave danger and could have taken reasonable steps to minimize the risk, his subsequent failure to act is wanton or reckless whether or not a reasonable person would have realized the risk of grave danger.[219] Even if the defendant himself did not realize the grave danger of harm to another, his failure to act would be wanton or reckless if a reasonable person in like circumstances would have realized the grave danger and taken steps to minimize the risk.[220]

It is not enough for the Commonwealth to prove the defendant was negligent in failing to act, that is, that a reasonably careful person would have acted.[221] The Commonwealth must prove that the defendant's failure to act went beyond negligence, and was wanton or reckless as I have defined that term.

[Where there is evidence of mental impairment or consumption of alcohol or drugs] In deciding whether the defendant knew, or should have known, his conduct created a high degree of likelihood that substantial harm would result to another, you may consider any credible evidence that the defendant suffered from a mental impairment or was affected by his consumption of alcohol or drugs.[222] A defendant may have the requisite knowledge 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.

B. Involuntary manslaughter unintentionally caused by a battery

[Note to judge:  Our case law limits this instruction to a battery that is not a felony.[223]]

Involuntary manslaughter is [also] an unlawful killing unintentionally caused by a battery[224] that the defendant knew or should have known endangered human life.[225] To prove the defendant is guilty of involuntary manslaughter by reason of a battery, the Commonwealth must prove beyond a reasonable doubt the following elements:

  1. The defendant caused the victim's death.[226]
  2. The defendant intentionally committed a battery upon the victim that endangered human life.[227]
  3. The defendant knew or reasonably should have known that the battery endangered human life.[228]
  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.

I will now discuss each element 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.[229]

The second element is that the defendant intentionally committed a battery on the victim that endangered human life.[230] A battery is the intentional or unjustified use of force upon the person of another.  To satisfy this element, the Commonwealth must prove that the battery created a high degree of likelihood that substantial harm would result to the victim.[231] Because the essence of manslaughter is an unintentional killing, the Commonwealth need not prove that the defendant intended the death that resulted from the battery.

The third element is that the defendant knew or reasonably should have known that the battery endangered human life in that it created a high degree of likelihood that substantial harm would result to the victim.[232] In determining whether the defendant reasonably should have known that the battery created a high degree of likelihood that substantial harm would result to another, you must consider the nature and extent of the defendant's knowledge at the time he acted and whether, in the circumstances known by the defendant, a reasonable person would have recognized that the battery created a high degree of likelihood that substantial harm would result to another.[233]

[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.

Footnotes

[177] An instruction on involuntary manslaughter is required where any reasonable view of the evidence will permit the jury to find that the defendant engaged in wanton or reckless conduct resulting in death.  Commonwealth v. Tavares, 471 Mass. 430, 438 (2015); Commonwealth v. Braley, 449 Mass. 316, 331 (2007). 

[178] The Supreme Judicial Court "has described conduct amounting to involuntary manslaughter as both 'wanton or reckless' and 'wanton and reckless.'"  Commonwealth v. Pagan, 471 Mass. 537, 547 n.18 (2015), quoting Commonwealth v. Tavares, 471 Mass. at 437 n.13.  But expressed either way, "[t]he standard . . . is one standard, not two, and describes intentional conduct where 'there is a high degree of likelihood that substantial harm will result to another.'"  Commonwealth v. Chase, 433 Mass. 293, 301 (2001), quoting Commonwealth v. Cruz, 430 Mass. 182, 186 (1999).  See Commonwealth v. Welansky, 316 Mass. 383, 398 (1944) ("[I]ntentional conduct to which either word applies is followed by the same legal consequences as though both words applied" [emphasis added]).  Because a jury may understand wanton to mean something slightly different than reckless, we describe the standard as "wanton or reckless" in these instructions.  See Welansky, supra ("The words 'wanton' and 'reckless' are practically synonymous in this connection, although the word 'wanton' may contain a suggestion of arrogance or insolence or heartlessness that is lacking in the word 'reckless'").

[179] Commonwealth v. Sneed, 413 Mass. 387, 393-394 (1992) ("each type of involuntary manslaughter requires a showing that the defendant knew, or should have known, that his conduct created a high degree of likelihood that substantial harm would result to another"); Commonwealth v. Braley, 449 Mass. at 331.

[180] Commonwealth v. Sires, 413 Mass. 292, 301 (1992) ("An instruction on [involuntary] manslaughter is required where any view of the evidence will permit a finding of manslaughter and not murder").  See Commonwealth v. Brown, 477 Mass. 805, 832-833 (2017).

[181] Commonwealth v. Earle, 458 Mass. at 347; Commonwealth v. Walker, 442 Mass. at 191-192.

[182] Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. 826, 832 (2010) ("Wanton or reckless conduct generally involves a wilful act that is undertaken in disregard of the probable harm to others that may result"); Commonwealth v. Welansky, 316 Mass. at 397 ("Usually wanton or reckless conduct consists of an affirmative act . . . ").

[183] Commonwealth v. Levesque, 436 Mass. 443, 451 (2002) ("defendant's omission when there is a duty to act can constitute manslaughter if the omission is wanton or reckless"); Commonwealth v. Twitchell, 416 Mass. 114, 117-118 (1993); Commonwealth v. Welansky, 316 Mass. 383, 397 (1944) ("But where . . . there is a duty of care . . . wanton or reckless conduct may consist of intentional failure to take such care . . . ").

[184] Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. at 832 ("Involuntary manslaughter is 'an unlawful homicide unintentionally caused by an act which constitutes such a disregard of probable harmful consequences to another as to amount to wanton or reckless conduct'" [citations omitted]).

[185] Id. ("when we refer to the intent required to support a conviction of involuntary manslaughter, we refer to the intent to perform the act that causes death and not the intent that a death occur").

[186] Id.; Commonwealth v. Welansky, 316 Mass. at 397 ("[Commonwealth] based its case on involuntary manslaughter through wanton or reckless conduct . . . .  Usually wanton or reckless conduct consists of an affirmative act").

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

[188] Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. at 832 ("when we refer to the intent required to support a conviction of involuntary manslaughter, we refer to the intent to perform the act that causes death and not the intent that a death occur").  See Commonwealth v. Earle, 458 Mass. at 347; Commonwealth v. Walker, 442 Mass. at 191-192; Commonwealth v. Catalina, 407 Mass. 779, 789 (1990); Commonwealth v. Welansky, 316 Mass. at 398.

[189] Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. at 832 ("reckless conduct does not require that the actor intend the specific result of his or her conduct, but only that he or she intended to do the reckless act"); Commonwealth v. Walker, 442 Mass. at 192-193.

[190] Commonwealth v. Welansky, 316 Mass. at 396-397.

[191] Commonwealth v. Earle, 458 Mass. at 347, quoting Commonwealth v. Welansky, 316 Mass. at 399 ("conduct [that] involves a high degree of likelihood that substantial harm will result to another"); Commonwealth v. Tolan, 453 Mass. 634, 648-649 (2009) ("wanton or reckless conduct that creates a high degree of likelihood that substantial harm will result to another"); Commonwealth v. Walker, 442 Mass. at 192.

[192] Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. at 832 ("act causing death must be undertaken in disregard of probable harm to others in circumstances where there is a high likelihood that such harm will result"); Commonwealth v. Godin, 374 Mass. 120, 129 (1977), quoting Commonwealth v. Welansky, 316 Mass. at 399 ("Wanton or reckless conduct amounts to what has been variously described as indifference to or disregard of probable consequences"); Commonwealth v. Welansky, supra at 398 ("judge charged the jury correctly when he said, 'To constitute wanton or reckless conduct . . . grave danger to others must have been apparent, and the defendant must have chosen to run the risk rather than alter his conduct so as to avoid the act or omission which caused the harm'").

[193] Commonwealth v. Earle, 458 Mass. at 347 n.9, citing Commonwealth v. Welansky, 316 Mass. at 398 ("relevant inquiry is whether a defendant knew of facts that would cause a reasonable person to know of the relevant danger, or whether the defendant in fact knew of the danger"; "judge charged the jury correctly when he said . . .  'If the grave danger was in fact realized by the defendant, his subsequent voluntary act or omission which caused the harm amounts to wanton or reckless conduct, no matter whether the ordinary man would have realized the gravity of the danger or not.  But even if a particular defendant is so stupid [or] so heedless . . . that in fact he did not realize the grave danger, he cannot escape the imputation of wanton or reckless conduct . . . if an ordinary man under the same circumstances would have realized the gravity of the danger'"); Commonwealth v. Catalina, 407 Mass. at 789, citing Welansky, 316 Mass. at 398-399 ("defendant's subjective awareness of the reckless nature of his conduct is sufficient, but not necessary, to convict him of involuntary manslaughter.  Conduct which a reasonable person, in similar circumstances, would recognize as reckless will suffice as well"); Commonwealth v. Godin, 374 Mass. at 129 ("standard necessary for a conviction is at once both a subjective and objective standard, and is based in part on the knowledge of facts which would cause a reasonable man to know that a danger of serious harm exists.  Such knowledge has its roots in experience, logic, and common sense, as well as in formal legal standards").

[194] Commonwealth v. Chapman, 433 Mass. 481, 490 (2001), citing Commonwealth v. Welansky, 316 Mass. at 398 ("judge charged the jury correctly when he said, . . . 'If the grave danger was in fact realized by the defendant, his subsequent voluntary act or omission which caused the harm amounts to wanton or reckless conduct, no matter whether the ordinary man would have realized the gravity of the danger or not").

[195] Commonwealth v. Walker, 442 Mass. at 192, citing Commonwealth v. Catalina, 407 Mass. at 789 ("Conduct which a reasonable person, in similar circumstances, would recognize as reckless will suffice . . . "), and citing Commonwealth v. Welansky, 316 Mass. at 398-399 ("judge charged the jury correctly when he said . . . 'But even if a particular defendant is so stupid [or] so heedless . . . that in fact he did not realize the grave danger, he cannot escape the imputation of wanton or reckless conduct . . . if an ordinary man under the same circumstances would have realized the gravity of the danger'").

[196] Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. at 832, citing Commonwealth v. Welansky, 316 Mass. at 397-401 ("Conviction of involuntary manslaughter requires more than negligence or gross negligence"); Commonwealth v. Chapman, 433 Mass. at 489-490; Commonwealth v. Godin, 374 Mass. at 127, 129; Commonwealth v. Bouvier, 316 Mass. 489, 495-496 (1944) (defendant's actions in negligently discharging gun that killed husband did not "approach[] in character the wanton or reckless conduct essential to a finding of involuntary manslaughter").  When given, this instruction need not include a definition of negligence or gross negligence.  See Commonwealth v. Chapman, 433 Mass. at 489-490 ("judge's instruction on wanton or reckless conduct incorporated [but did not define] the concepts of ordinary and gross negligence to illustrate the placement of wanton or reckless conduct on a spectrum of fault.  The jury can be presumed to have a sufficient understanding of negligence and gross negligence from their collective experience for purposes of this instruction").

[197] Commonwealth v. Iacoviello, 90 Mass. App. Ct. 231, 243-245 (2016).

[198] Commonwealth v. Levesque, 436 Mass. at 451 ("defendant's omission when there is a duty to act can constitute manslaughter if the omission is wanton or reckless"); Commonwealth v. Twitchell, 416 Mass. at 117-118; Commonwealth v. Welansky, 316 Mass. at 397 ("But where . . . there is a duty of care . . . wanton or reckless conduct may consist of intentional failure to take such care . . . ").

[199] Commonwealth v. Twitchell, 416 Mass. at 117 (parent and minor child); Commonwealth v. Welansky, 316 Mass. at 397 (nightclub owner and patrons); Commonwealth v. Godin, 374 Mass. at 125-128 (discussing duty with regard to employer/employee relationship).

[200] Commonwealth v. Levesque, 436 Mass. at 448-451 (discussing duty in context of negligently started fire); Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. at 832-833 (discussing duty where one creates "life-threatening condition"); Commonwealth v. Godin, 374 Mass. at 126-130 (discussing duty in context of alleged improper storage of fireworks); Commonwealth v. Atencio, 345 Mass. 627, 629-630 (1963) (discussing duty in context of playing "Russian roulette").

[201] Commonwealth v. Welansky, 316 Mass. at 397 ("But where . . . there is a duty of care . . . wanton or reckless conduct may consist of intentional failure to take such care in disregard of the probable harmful consequences . . . ").

[202] Commonwealth v. Twitchell, 416 Mass. at 117 (parent and minor child); Commonwealth v. Michaud, 389 Mass. 491, 496 (1983) (same); Commonwealth v. Welansky, 316 Mass. at 397 (nightclub owner and patrons).  The existence of a relationship giving rise to a duty is a question of fact for the jury although the duty arising from a relationship is a matter of law.  See, e.g., Twitchell, supra ("We shall conclude that parents have a duty . . . ").

[203] Commonwealth v. Levesque, 436 Mass. at 449 (evidence presented to grand jury sufficient to support indictment for involuntary manslaughter where defendant negligently started fire and intentionally failed to report fire causing death of firefighters); Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. at 832-833 (discussing duty where omission creates "life-threatening condition"); Commonwealth v. Godin, 374 Mass. at 126-130 (discussing duty in context of alleged improper storage of fireworks); Commonwealth v. Atencio, 345 Mass. at 629-630 (discussing duty in context of playing "Russian roulette").

[204] Commonwealth v. Levesque, 436 Mass. at 447-448, 454 (causation through omission);  Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. at 832 ("Involuntary manslaughter is 'an unlawful homicide unintentionally caused by an act which constitutes such a disregard of probable harmful consequences to another as to amount to wanton or reckless conduct'" [citations omitted]); Commonwealth v. Rhoades, 379 Mass. at 825 (discussing causation of death in murder case).

[205] Commonwealth v. Levesque, 436 Mass. at 451-453  (intentional failure to report negligently started fire causing death of responding firefighters would constitute wanton and reckless conduct); Commonwealth v. Twitchell, 416 Mass. at 117-118 (intentional failure to provide medical care leading to child's death constituted wanton and reckless conduct).

[206] Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. at 832; Commonwealth v. Levesque, 436 Mass. at 451-453; Commonwealth v. Welansky, 316 Mass. at 397 ("[Commonwealth] based its case on involuntary manslaughter through wanton or reckless conduct [which] may consist of intentional failure to take such care . . . ").

[207] Commonwealth v. Twitchell, 416 Mass. at 117 (parent and minor child); Commonwealth v. Michaud, 389 Mass. at 496 (same); Commonwealth v. Welansky, 316 Mass. at 397 (nightclub owner and patrons).

[208] Commonwealth v. Levesque, 436 Mass. at 449 (evidence presented to grand jury sufficient to support indictment for involuntary manslaughter where defendant negligently started fire and intentionally failed to report fire causing death of firefighters); Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. at 832-833 (discussing duty where omission creates "life-threatening condition"); Commonwealth v. Godin, 374 Mass. at 126-130 (discussing duty in context of alleged improper storage of fireworks); Commonwealth v. Atencio, 345 Mass. at 629-630 (discussing duty in context of playing "Russian roulette").

[209] The existence of a relationship giving rise to a duty is a question of fact for the jury although the duty arising from a relationship is a matter of law.  See, e.g., Commonwealth v. Twitchell, 416 Mass. at 117 ("We shall conclude that parents have a duty . . . ").

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

[211] Commonwealth v. Levesque, 436 Mass. at 451-453 (intentional failure to report negligently started fire causing death of responding firefighters would constitute wanton and reckless conduct); Commonwealth v. Twitchell, 416 Mass. at 117-118 (intentional failure to provide medical care leading to child's death constituted wanton and reckless conduct).

[212] Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. at 832 ("[R]eckless conduct does not require that the actor intend the specific result of his or her conduct, but only that he or she intended to do the reckless act").

[213] Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. at 832; Commonwealth v. Levesque, 436 Mass. at 451-453; Commonwealth v. Welansky, 316 Mass. at 397 ("[Commonwealth] based its case on involuntary manslaughter through wanton or reckless conduct [which] may consist of intentional failure to take such care . . . ").

[214] Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. at 832("Wanton or reckless conduct generally involves a wilful act that is undertaken in disregard of the probable harm to others that may result . . . .  If an individual's actions create a life-threatening condition, there is a duty to take reasonable steps to alleviate the risk created, and the failure to do so may rise to the level of recklessness necessary for involuntary manslaughter"); Commonwealth v. Levesque, 436 Mass. at 450-451; Commonwealth v. Michaud, 389 Mass. at 495-496, 499.

[215] Commonwealth v. Levesque, 436 Mass. at 451-452, quoting Commonwealth v. Welansky, 316 Mass. at 399 ("words 'wanton' and 'reckless' constitute conduct that is . . . 'intentional conduct . . . involv[ing] a high degree of likelihood that substantial harm will result to another'").

[216] Commonwealth v. Life Care Ctrs. of Am., Inc., 456 Mass. at 832-833; Commonwealth v. Levesque, 436 Mass. at 448.

[217] Commonwealth v. Levesque, 436 Mass. at 450-451 ("Whether a defendant has satisfied this duty will depend on the circumstances of the particular case and the steps that the defendant can reasonably be expected to take to minimize the risk"); Commonwealth v. Welansky, 316 Mass. at 397-401.  Compare Commonwealth v. Twitchell, 416 Mass. at 117-118 (failure to provide medical care for child for religious reasons could sustain involuntary manslaughter conviction), with Commonwealth v. Michaud, 389 Mass. at 495-499 (failure to provide medical care for child in circumstances where child was doing well shortly before child's death insufficient to sustain involuntary manslaughter conviction).

[218] Commonwealth v. Welansky, 316 Mass. at 398 ("judge charged the jury correctly when he said . . . '[i]f the grave danger was in fact realized by the defendant, his subsequent voluntary act or omission which caused the harm amounts to wanton or reckless conduct, no matter whether the ordinary man would have realized the gravity of the danger or not.  But even if a particular defendant is so stupid [or] so heedless . . . that in fact he did not realize the grave danger, he cannot escape the imputation of wanton or reckless conduct . . . if an ordinary man under the same circumstances would have realized the gravity of the danger'").

[219] Commonwealth v. Welansky, 316 Mass. at 398 ("judge charged the jury correctly when he said . . . '[i]f the grave danger was in fact realized by the defendant, his subsequent voluntary act or omission which caused the harm amounts to wanton or reckless conduct, no matter whether the ordinary man would have realized the gravity of the danger or not'"); Commonwealth v. Levesque, 436 Mass. at 451 ("Whether a defendant has satisfied this duty will depend on the circumstances of the particular case and the steps that the defendant can reasonably be expected to take to minimize the risk").

[220] Commonwealth v. Welansky, 316 Mass. at 398 ("judge charged the jury correctly when he said . . . '[b]ut even if a particular defendant is so stupid [or] so heedless . . . that in fact he did not realize the grave danger, he cannot escape the imputation of wanton or reckless conduct . . . if an ordinary man under the same circumstances would have realized the gravity of the danger'"); Commonwealth v. Levesque, 436 Mass. 443, 451 (2002) ("Although, in this case, the defendants apparently could not have successfully put out the fire, they could have given reasonable notice of the danger they created"); Commonwealth v. Michaud, 389 Mass. 491, 495-499 (1983).

[221] Commonwealth v. Levesque, 436 Mass. 443, 451-452 (2002) ("words 'wanton' and 'reckless' constitute conduct that is 'different in kind' than negligence or gross negligence"); Commonwealth v. Welansky, 316 Mass. 383, 400 (1944) ("conduct does not become criminal until it passes the borders of negligence and gross negligence and enters into the domain of wanton or reckless conduct").  Compare Commonwealth v. Twitchell, 416 Mass. 114, 115-117, 122 (1993) (parental failure to seek medical treatment for child for religious reasons could sustain involuntary manslaughter conviction), with Commonwealth v. Michaud, 389 Mass. 491, 498-499 (1983) (parental failure to feed adequately and seek proper medical treatment for child who appeared to be in good health shortly prior to child's death, even if negligent, insufficient to establish reckless culpability for involuntary manslaughter).

[222] Commonwealth v. Iacoviello, 90 Mass. App. Ct. at 243-245.

[223] See Commonwealth v. Simpson, 434 Mass. 570, 590 (2001) ("battery not amounting to a felony which the defendant knew or should have known endangered human life"); Commonwealth v. Catalina, 407 Mass. at 784, 788-789.

[224] Commonwealth v. Catalina, 407 Mass. at 788-789, citing Commonwealth v. Sheppard, 404 Mass. 774, 775-776 (1989); Commonwealth v. Welansky, 316 Mass. at 401.

[225] Commonwealth v. Fitzmeyer, 414 Mass. 540, 547 (1993) ("knew or should have known that the battery he was committing endangered human life"); Commonwealth v. Sneed, 413 Mass. at 394, quoting Commonwealth v. Welansky, 316 Mass. at 399, 401 ("high degree of likelihood that substantial harm will result to another").

[226] Commonwealth v. Catalina, 407 Mass. at 789 ("person henceforth may be prosecuted for involuntary manslaughter only for causing an unintentional death . . . "); Commonwealth v. Sheppard, 404 Mass. at 776.

[227] Commonwealth v. Braley, 449 Mass. at 331; Commonwealth v. Reed, 427 Mass. at 104; Commonwealth v. Fitzmeyer, 414 Mass. at 547; Commonwealth v. Sires, 413 Mass. at 302 n.10.

[228] Commonwealth v. Linton, 456 Mass. at 552; Commonwealth v. Braley, 449 Mass. at 331, quoting Commonwealth v. Simpson, 434 Mass. at 590 ("battery not amounting to a felony which the defendant knew or should have known endangered human life"); Commonwealth v. Sires, 413 Mass. at 302 n.10, 303 n.14 ("defendant knew or should have known that the battery he was committing endangered human life").

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

[230] Commonwealth v. Braley, 449 Mass. at 331; Commonwealth v. Fitzmeyer, 414 Mass. at 547, citing Commonwealth v. Sires, 413 Mass. at 302 n.10; Commonwealth v. Catalina, 407 Mass. at 783-784, 788-789; Commonwealth v. Sheppard, 404 Mass. at 776; Commonwealth v. Welansky, 316 Mass. at 401.

[231] Commonwealth v. Sneed, 413 Mass. at 394, quoting Commonwealth v. Welansky, 316 Mass. at 399 ("level of the risk of physical harm that the evidence must show to warrant an instruction on involuntary manslaughter battery causing death is . . . 'a high degree of likelihood that substantial harm will result to another'").  The model instruction harmonizes the line of cases that defined this element in terms of endangering human life with cases that focused on the likelihood of substantial harm.  Compare, e.g., Commonwealth v. Fitzmeyer, 414 Mass. at 547 ("knew or should have known that the battery he was committing endangered human life"), with Commonwealth v. Sneed, supra at 394 & n.5.  The model instruction retains the "endangered human life" element and explains the element in terms of whether the defendant created "a high degree of likelihood that substantial harm will result to another."

[232] Commonwealth v. Braley, 449 Mass. at 331, quoting Commonwealth v. Simpson, 434 Mass. at 590 ("battery not amounting to a felony which the defendant knew or should have known endangered human life"); Commonwealth v. Sneed, 13 Mass. at 394, quoting Commonwealth v. Welansky, 316 Mass. at 399 ("level of the risk of physical harm that the evidence must show to warrant an instruction on involuntary manslaughter battery causing death is . . . 'a high degree of likelihood that substantial harm will result to another'"); Commonwealth v. Sires, 413 Mass. at 302 n.10, 303 n.14 ("defendant knew or should have known that the battery he was committing endangered human life").

[233] See id. ("degree of risk of physical harm that a reasonable person would recognize was created by particular conduct, based on what the defendant knew").

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Date published: April 25, 2018

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