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SJC-11714

                  COMMONWEALTH   vs.   JUAN PAGAN.



         Middlesex.     January 6, 2015. - June 1, 2015.

  Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                           & Hines, JJ.



Homicide. Evidence, Intent, Motive, Age. Intent. Mental
     Impairment. Practice, Criminal, Verdict, Lesser included
     offense, Instructions to jury. Malice.



     Indictments found and returned in the Superior Court
Department on June 22, 2006.

     The case was tried before S. Jane Haggerty, J.; a motion to
reduce the verdict was heard by her; and a motion for a new
trial, filed on June 13, 2012, was also heard by her.

     The Supreme Judicial Court granted an application for
direct appellate review.


     John F. Palmer for Juan Pagan.
     Bethany Stevens, Assistant District Attorney, for the
Commonwealth.
     Afton M. Templin, for Committee for Public Counsel
Services, amicus curiae, submitted a brief.
                                                                    2


     HINES, J.    On July 24, 2007, a jury convicted the

defendant, Juan Pagan, of murder in the first degree on the

theory of deliberate premeditation.    At trial, there was no

dispute that the defendant, when he was sixteen years of age,

stabbed Alex Castro Santos (victim) to death.    His defense was

that he was not guilty of murder because he had acted in self-

defense and with a mental impairment, namely attention deficit

hyperactivity disorder (ADHD) and depression, which when viewed

in the context of his age, caused him to act reflexively and

instinctively.    One month following his conviction, the

defendant filed a motion pursuant to Mass. R. Crim. P.

25 (b) (2), 378 Mass. 896 (1979), to reduce the verdict to

murder in the second degree, which the trial judge granted and

from which the Commonwealth appeals.    After he was resentenced,

the defendant filed a notice of appeal.    Subsequently, on June

13, 2012, the defendant filed a motion for a new trial in the

Superior Court, pursuant to Mass. R. Crim. P. 30 (b), as

appearing in 435 Mass. 1501 (2001), arguing that the court room

had been closed during jury empanelment in violation of his

right to a public trial under the Sixth Amendment to the United

States Constitution.    Following a hearing, a judge denied the

motion. 1   The defendant thereafter filed a separate appeal from


     1
       The trial judge was also the judge who heard both the
motion to reduce the verdict and the motion for a new trial.
                                                                     3


this order.   The defendant's direct appeal 2 and his appeal from

the denial of his motion for a new trial were consolidated in

the Appeals Court, and we granted the Commonwealth's application

for direct appellate review.   We affirm the orders allowing a

reduction of the verdict to murder in the second degree and

denying the defendant's motion for a new trial, and affirm the

defendant's conviction.

     Trial.   We recite the facts the jury could have found based

on the Commonwealth's case, see Commonwealth v. Latimore, 378

Mass. 671, 676-677 (1979), reserving certain details for our

discussion of the specific issues raised.    During the late

evening of May 14, 2006, a group of young men in their late

teens and early twenties gathered at the apartment of Stephen

Peddle in Lowell to socialize and to play cards.    Peddle and

some of the men were or had been affiliated with GRIP, a housing

program for homeless or displaced youth. 3   Although not involved

with GRIP at the time, the defendant was living with Peddle.

     Among those gathered at Peddle's apartment that night were

Peddle, the defendant, Michael May, and Ramon Normil.    At around

     2
       In his direct appeal, the defendant argues reversible
error in the judge's failure to instruct on involuntary
manslaughter.
     3
       In the GRIP program, homeless youths are taught life
skills in a group home setting. Once the youths have acquired
these skills and have obtained employment, the organization
assists them in finding independent housing.
                                                                   4


10:30 P.M., Brian Patrick Murphy, Markeem Bishop, Joshua Spencer

Apostolos, and Adam Costas joined them.    Approximately twenty

minutes later, the victim arrived.    He was upset because his

friend had been "jumped" by some member or members of a gang.

The victim blamed the defendant, Normil, and Peddle for the

incident because he suspected they associated with the gang that

allegedly had been involved.    When asked, Normil informed the

victim that he did not know who had participated in the attack.

The victim told everyone that friends were looking for members

of that gang, implicitly suggesting there would be retaliation.

The defendant grew upset, stating that some of those people were

his friends.

     Having exhausted the last of a "blunt," or marijuana

cigarette, Murphy, Costas, Bishop, and the victim left, heading

to a nearby convenience store to purchase a cigar. 4   They were

gone for about five to ten minutes before returning to Peddle's

apartment. 5   When they arrived, the defendant and May were no

longer there.

     The defendant and May left to visit a friend of the

defendant's, Nicholas George Giuliani.    On approaching his


     4
       The victim was not present when some of the men smoked the
first blunt.
     5
       Joshua Apostolos used the cigar the group purchased to
make another blunt that everyone took turns smoking.
                                                                      5


automobile, 6 the defendant and May saw that some of the windows

had been broken.    The defendant told May that he suspected that

the victim had been responsible.

     After briefly visiting Giuliani, the defendant and May

returned to Peddle's apartment. 7    The defendant was upset and

verbally confronted the victim, who stated that he had had a BB

gun earlier, but not anymore. 8   The victim went on to deny any

involvement with breaking the windows of the defendant's

vehicle, but stated that he knew who had done it and would not

tell the defendant.    The defendant asked the rest of the group

whether anyone had seen anything.     No one volunteered

information about the incident.     The victim decided to leave and

started saying goodbye.    He told the defendant he was "sorry"

and it just had been a "joke."      The victim repeated that he was

upset about his friend and wanted to go find the perpetrators.

Apostolos, a friend of the victim, testified that the victim




     6
         The automobile was owned by the defendant's father.
     7
       The defendant told Nicholas George Giuliani what had
transpired that evening and asked whether Giuliani would
accompany him to Stephen Peddle's apartment to "watch his back."
Giuliani declined and returned to bed.
     8
       There was evidence that Markeem Bishop had a BB gun that
"looked like a pistol." The day prior, "everyone" had played
with the BB gun, including the victim.
                                                                      6


patted his waist area indicating that he had a weapon. 9    The

defendant asked the victim tauntingly, "Are you ready to use

that?"    The victim replied that he was, and the defendant "got

quiet."

     After taking a cigarette from Normil, the victim headed

toward the door, which was in the direction of the defendant,

and stood inside the doorway.    The defendant, meanwhile, had

taken a seat on a mattress in the living room and had picked up

a large combat-style knife with an eight-inch blade and began

twirling it.     Murphy testified that the victim walked toward the

defendant; Apostolos testified that the victim turned toward the

direction of the defendant from the doorway. 10   The defendant

abruptly jumped up from the mattress, stepped around Apostolos,

punched the victim three times in the face, and stabbed him in

the abdomen.   When Apostolos ran to the victim's aid, he

observed a BB gun approximately three to four feet from the

victim's body.

     9
       Brian Patrick Murphy testified that he did not see the
victim make any threatening gestures and did not see the victim
in possession of any type of gun. Ramon Normil's testimony was
the same. Although Apostolos observed a BB gun on the floor
after the stabbing, he did not see it in the victim's
possession, nor did he hear the victim make any threats to the
defendant.
     10
       The defendant's friend, Michael May, testified that the
victim had not approached the defendant just before the
stabbing. Normil stated that the victim was walking toward the
door.
                                                                        7


     Murphy took over assisting the victim, who asked to go to a

hospital, and Apostolos restrained the defendant.       The knife the

defendant had been holding was on the floor.

     The defendant fled the apartment and arrived at Giuliani's

home at about 1:30 A.M., now May 15.       The defendant said that

someone had had a gun.      He was scared and crying, and told

Giuliani that he thought that he had just killed someone and

that he had stabbed him.      After falling asleep on Giuliani's

couch, the defendant awoke to pounding at the front door.

Seeing that it was the police, the defendant ran out the back

door, but was caught and arrested.

     The victim was treated by ambulance personnel at the

apartment.      He did not survive.   The medical examiner who

conducted his autopsy opined that the victim died as a result of

a stab wound to the abdomen, with perforation of the liver and

vena cava. 11

     The police recovered a BB gun outside the rear window of

Peddle's apartment.      They also took possession of the knife.

     The theory of the defense was that the defendant, who was

sixteen years of age at the time of the stabbing, did not intend

to kill the victim and had acted impulsively or in self-defense.

     11
       The medical examiner explained that the stab wound had
cut the victim's interior vena cava, which is a large vein that
carries blood from one's lower extremities to the heart to be
reoxygenated.
                                                                    8


The defendant did not testify.    He supported his defense with

the expert testimony of Dr. Bernice Kelly, a forensic

psychologist.    Dr. Kelly interviewed the defendant four times

and took note of the fact that he had a very "troubling"

childhood involving a mother who abused drugs and a father who

physically abused him frequently.    On the basis of her

interviews, testing, and review of school, medical, and other

records, Dr. Kelly concluded that the defendant suffered from

ADHD 12 and dysthymic disorder (depression from an early age) at

the time of the stabbing.    She opined that his ADHD exacerbated

the impulsivity of an adolescent brain that is prone to risk-

taking. 13   Dr. Kelly testified that in the circumstances the

defendant was in just before the stabbing, being an adolescent

with ADHD and depression and being in fear of imminent bodily

harm, he would not have been able to consider alternative

choices and was only capable of acting impulsively.


     12
       The defendant had been diagnosed with attention deficit
hyperactivity disorder (ADHD) when he was in kindergarten. Dr.
Bernice Kelly explained that about seven per cent of the
population has ADHD. She explained that it is "a condition that
has to begin before age seven." Symptoms include hyperactivity,
impulsivity, and difficulty with attention, concentration,
planning, and problem-solving. She also cited research that
states that the brain undergoes more change during adolescence
than at any other time, ending when one is approximately twenty-
one years of age.
     13
       Dr. Kelly testified that the frontal lobe area of the
brain, which controls thinking and planning, and enables one to
inhibit responses, is not well developed in adolescents.
                                                                     9


     The judge instructed the jury on murder in the first degree

on a theory of deliberate premeditation, murder in the second

degree, and voluntary manslaughter based on reasonable

provocation and the use of excessive force in self-defense.    The

judge also gave an instruction on self-defense as a complete

defense.   The judge further instructed on the relevance of

mental impairment as it bore on the requisite intent to kill, on

deliberate premeditation, and on whether the Commonwealth met

its burden of proving that the defendant did not act in self-

defense, did not act with reasonable provocation, and did not

use excessive force in self-defense.

     Discussion.   1.   Commonwealth's appeal; motion to reduce

the verdict.    As has been stated, the judge allowed the

defendant's motion under rule 25 (b) (2) and reduced the verdict

to murder in the second degree.    The Commonwealth appeals,

seeking reinstatement of the jury's verdict of murder in the

first degree.    We affirm the judge's order.

     The guiding principles for reducing a verdict under rule 25

(b) (2) are set forth in Commonwealth v. Sokphann Chhim, 447

Mass. 370, 381-382 (2006):

          "A trial judge has the authority, pursuant to rule 25
     (b) (2), to reduce a verdict, despite the presence of
     sufficient evidence to support the jury's verdict. . . .
     Although the purpose of the power to reduce a verdict is to
     ensure that the result in every case is consonant with
     justice, . . . the power is to be used sparingly, . . . and
     the judge is not to sit as a second jury. . . . A most
                                                                   10


     important consideration is whether the jury verdict is
     markedly inconsistent with verdicts returned in similar
     cases. . . . Our role is not to decide whether we would
     have acted as the trial judge did. The judge has the
     advantage of face to face evaluation of the witnesses and
     the evidence at trial and is therefore in a far better
     position than we[] to make the judgment required by [rule
     25 (b) (2)]. . . . We decide only whether the judge abused
     his discretion or committed other error of law. . . .

          "A judge's discretion to reduce a verdict pursuant to
     rule 25 (b) (2) is appropriately exercised where the weight
     of the evidence in the case, although technically
     sufficient to support the jury's verdict, points to a
     lesser crime. Thus, for example, where evidence of
     premeditation was slim, the judge did not abuse his
     discretion in reducing a verdict of murder in the first
     degree to murder in the second degree. . . . Similarly,
     where the weight of the evidence suggests that the
     defendant did not act with malice, a murder verdict may be
     reduced to manslaughter. . . . We must examine, therefore,
     whether there was some weakness in the evidence, . . . that
     the defendant committed murder in the first degree and
     determine whether the judge was correct in concluding that
     the evidence is more consistent with a lesser form of
     homicide." (Quotations and citations omitted.)

In addition, a judge considering a motion to reduce a verdict

under rule 25 (b) (2) "may rely on essentially the same

considerations as does this court when deciding whether to

reduce a verdict to a lesser degree of guilt pursuant to G. L.

c. 278, § 33E."   Commonwealth v. Reavis, 465 Mass. 875, 891

(2013).

     The judge concluded that the weight of the evidence

demonstrated a weakness in the Commonwealth's evidence

concerning the defendant's ability to deliberately premeditate,

thereby pointing to a lesser degree of homicide.   She based her
                                                                   11


findings on the trial testimony of Dr. Kelly and "the materials

presented and argued at the post-trial motion to reduce the

verdict, including the report of Dr. Kelly."   The judge's

findings of fact were as follows.

     At the time of the murder, the defendant was sixteen years

of age and suffered from ADHD.   He came from an extremely

dysfunctional family.   His mother was drug dependent and had

used drugs during her pregnancy with the defendant.   When the

defendant was eighteen months old, his mother abandoned the

family, and the defendant was in foster care until three years

of age.   Although there had been some limited contact with the

mother over the years, the defendant essentially had no

relationship with his mother.    The defendant's father, who was

seventy-four years of age at the time of the murder, provided

little parenting or guidance to the defendant, due in part to

his age and his own medical problems.   Thus, the defendant had

no adult supervision and spent most of his teen years on the

streets with peers.   Despite these circumstances, the

defendant's juvenile record consisted solely of an assault and

battery by means of a dangerous weapon.   That event arose out of

an argument that occurred with one member of the defendant's

dysfunctional family.

     The defendant was diagnosed with ADHD at an early age and

was treated with medication for the condition until he was
                                                                    12


twelve years of age.    Since that time, his ADHD went untreated.

In addition to ADHD, the defendant has suffered from untreated

clinical depression from early childhood to the time of the

murder.   His early school years were marked by disruptive

behavior and poor performance.    In 2004, the defendant's father

transferred guardianship of the defendant to his brother in

California because the father was incapable of managing the

defendant.   The brother could not manage the defendant and sent

him back to Lowell.    In the spring of 2006, the defendant was

expelled from Lowell High School.    Following the expulsion, the

defendant was homeless until he went to live at Peddle's

apartment a couple of weeks before the murder.

     The judge noted a "constellation of factors at play

preceding and at the moment of the stabbing."    She found

particularly significant that the defendant did not leave to

procure a murder weapon (it was already there) and did not seek

out the victim.

     In addition to the thin evidence of deliberate

premeditation, the judge took into consideration the defendant's

youth and turbulent background, as well as his medical history.

Especially troubling to the judge was the fact that, at the time

of the murder, the defendant's ADHD was not being treated.    The

judge also credited Dr. Kelly's testimony that the defendant

lacked the cognitive capacity to premeditate the killing as a
                                                                    13


result of his untreated ADHD, inadequate adult supervision, and

immature adolescent neurodevelopment.    The judge noted that the

defendant's impulsiveness not only was affected by untreated

ADHD, but also was exacerbated by his youth, familial neglect,

and developmental immaturity.    She thus determined that a

reduction of the verdict to murder in the second degree was more

consonant with justice.

     As an initial matter, the Commonwealth correctly does not

argue that the judge improperly considered the defendant's youth

(and adolescent brain) and personal experiences (such as his

untreated ADHD and troubled childhood) in reducing the verdict.

The judge properly noted that the defendant's age and personal

circumstances alone cannot warrant a reduction of the verdict.

See Commonwealth v. Rolon, 438 Mass. 808, 825 (2003).     The

judge, however, considered those factors in combination with the

fact that the evidence of deliberate premeditation was slim, a

permissible basis on which to reduce the verdict.    See id. at

821, 825; Commonwealth v. Ghee, 414 Mass. 313, 322

(1993); Commonwealth v. Millyan, 399 Mass. 171, 188-189 (1987).

     The Commonwealth challenges the judge's assessment

concerning the evidence of deliberate premeditation and her

conclusion that it was weak.    The Commonwealth argues that the

judge's determination that the defendant's actions reflected

more spontaneity than deliberate premeditation, see Commonwealth
                                                                  14


v. Tavares, 385 Mass. 140, 158-159, cert. denied, 457 U.S. 1137

(1982) (reducing verdict to murder in second degree in part due

to defendant's spontaneous, rather than planned, reaction to

victim's alleged insults), was based on a mischaracterization of

the sequence of the events preceding the stabbing.   We disagree.

     The judge's recitation of the facts correctly acknowledged

that Apostolos was the only witness who testified that the

victim, before the stabbing, had made a gesture to indicate that

he had a gun.   She then went on to say that the defendant next

abruptly jumped up from the mattress and stabbed the victim.

While the word "next" in her findings did not necessarily

exactly describe every witness account, the fact that the victim

may have turned first or have spoken with someone about a

cigarette before stabbing the victim, did not detract from the

consistent witness testimony that the defendant's actions in

jumping up from the mattress to stab the victim were unexpected

to everyone there and were abrupt.   There was no evidence to the

contrary, and the evidence bearing on the fact that the victim

may have indicated that he had a gun or had started walking in

the direction of the defendant bore on provocation, self-

defense, or excessive use of force in self-defense, but not to

the spontaneity of the incident.

     The Commonwealth also overlooks the other factors that the

judge properly considered, including the fact that any motive on
                                                                    15


the part of the defendant to retaliate against the victim for

allegedly having broken the windows to the defendant's

automobile weakened any suggestion of premeditation when the

victim apologized to the defendant.    In addition, the knife was

already in the apartment and the defendant did not have to leave

to obtain it, see Commonwealth v. Keough, 385 Mass. 314, 320-321

(1982), nor did he have to leave to seek out the victim.

Further, the defendant inflicted just one stab wound to the

victim.   See Commonwealth v. Garabedian, 399 Mass. 304, 317

(1987) (consideration in favor of spontaneity, rather than

deliberate premeditation, is whether defendant inflicted single

blow or separate distinct acts capable of causing death).

     The Commonwealth argues that different inferences should

have been drawn from this evidence.    The judge acknowledged that

the evidence was sufficient to support the jury's verdict, but

from the evidence and witnesses she heard firsthand, she was not

foreclosed from considering the weight of the evidence and doing

so in combination with compelling and uncontroverted testimony

regarding the defendant's youth, adolescent brain, untreated

ADHD, and troubled childhood, which served to mitigate the level

of culpability. 14   See Keough, 385 Mass. at 321.   The judge's


     14
       The Commonwealth contends that the judge erroneously
relied on Dr. Kelly's testimony to find that the defendant's
actions were impulsive and not deliberately premeditated because
the evidence "indisputably supports that there was no threat to
                                                                    16


decision reflects careful and serious deliberation.    We cannot

say that she abused her discretion in determining, based on the

facts of this case, that the lesser verdict of murder in the

second degree was more consonant with justice.

     2.    Defendant's appeal; failure to instruct on involuntary

manslaughter.    The defendant argues that the judge erred in

failing to instruct the jury on involuntary manslaughter based

on his mental impairment of ADHD and depression in an adolescent

brain.    Because the defendant did not specifically request an

involuntary manslaughter instruction on this basis at trial, 15 or

object to the charge on the ground of its absence on this basis,

we review whether there was error and, if so, whether it created




the defendant that night," such that the basis for Dr. Kelly's
opinion testimony was unsupported. Again, the Commonwealth
views the evidence only in a light favorable to it. There was
testimony from Murphy that before the stabbing the victim walked
toward the defendant. According to Apostolos, before the
stabbing, the victim made a gesture by his waist indicating that
he had a gun and told the defendant he was ready to use it.
Just after the stabbing, a BB gun was found on the floor next to
the victim. Viewing the evidence in the light most favorable to
the defendant, the jury could have inferred from this evidence
that the victim had reached for or had taken out the BB gun just
before the stabbing. This permissible view of the evidence
warranted the judge in instructing the jury on provocation,
self-defense, and the use of excessive force in self-defense.
There was an evidentiary basis for Dr. Kelly's opinion
testimony.
     15
       The defendant requested an involuntary manslaughter
instruction at trial on the basis that the defendant's conduct
was reckless.
                                                                      17


a substantial risk of a miscarriage of justice. 16

See Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).      An

involuntary manslaughter instruction is required if the evidence

warrants a jury in finding the defendant guilty of that

offense.   Commonwealth v. Horne, 466 Mass. 440, 444 (2013).     In

this case, however, there was no error because the evidence

supported only a finding of malice, thus precluding an

instruction on manslaughter.

     "Malice is what distinguishes murder from

manslaughter."    Commonwealth v. Vizcarrando, 427 Mass. 392, 396

(1998), S.C., 431 Mass. 360 (2000).   The distinction means that

a verdict of manslaughter is possible only in the absence of

malice.    See Commonwealth v. Judge, 420 Mass. 433, 437 (1995)

("Without malice, an unlawful killing can be no more than

manslaughter").   "To prove malice, the Commonwealth must prove

one of three prongs:   (1) an intent to kill the victim; (2) an

intent to cause grievous bodily harm to the victim; or (3)

commission of an act that, in the circumstances known to the

defendant, a reasonable person would have known created a plain

and strong likelihood of death."    Commonwealth v. Riley, 467

Mass. 799, 821-822 (2014).   By contrast, involuntary

manslaughter is "the unintentional result of an act committed

     16
       We use the substantial risk of a miscarriage of justice
standard because we affirm the defendant's conviction of murder
in the second degree, not murder in the first degree.
                                                                   18


with such disregard of its probable harm to another as to amount

to wanton or reckless conduct." 17   Commonwealth v. Souza, 428

Mass. 478, 492-493 (1998), quoting Commonwealth v. Nichypor, 419

Mass. 209, 217 (1994).   In the context of involuntary

manslaughter, wanton and reckless conduct 18 is "intentional

conduct that create[s] a high degree of likelihood that

substantial harm will result to another person."    Commonwealth

v. Chambers, 465 Mass. 520, 536 n.15 (2013).    See Commonwealth

v. Horne, 466 Mass. 440, 443 n.2 (2013), and cases cited.

     No view of the evidence adduced at trial supports the

argument that the defendant's conduct was merely wanton and

reckless, and not intentional.   The degree of the risk of

physical harm that a reasonable person would recognize was

created by the defendant's conduct is simply not compatible with

the "high degree of likelihood that substantial harm will result

to another person" associated with wanton and reckless conduct.


     17
       "A verdict of involuntary manslaughter is possible only
where the defendant caused an unintentional death (1) during the
commission of an act amounting to wanton or reckless conduct, or
(2) during the commission of a battery." Commonwealth v.
Brooks, 422 Mass. 574, 578 (1996). At trial, the defendant
argued on the wanton and reckless conduct prong only, conceding
that the basis for doing so was "weak."
     18
       "This court has described conduct amounting to
involuntary manslaughter as both 'wanton or reckless' and
'wanton and reckless.'" Commonwealth v. Tavares, 471 Mass. 430,
437 n.13 (2015), citing Commonwealth v. Chase, 433 Mass. 293,
301 (2001). "Expressed either way, the words articulate a single
standard, not two." Tavares, supra, citing Chase, supra.
                                                                   19


     Here, the defendant had to bypass Apostolos in order to

reach the victim and then, after punching him, stabbed him in

the abdomen with a knife having an eight-inch blade.    Stabbing

someone in the abdomen with an eight-inch blade involves an

obvious risk of harm consistent with second or third prong

malice and not just a risk of substantial harm that would

warrant an involuntary manslaughter instruction.

See Commonwealth v. Sanna, 424 Mass. 92, 105 (1997) (when

obvious that risk of physical harm to victim created plain and

strong likelihood that death will follow, instruction on

involuntary manslaughter not required). 19   Contrast Commonwealth

v. Tavares, 471 Mass. 430, 438-439 (2015) (where defendant

"simply pointed the gun at [the victim] and then backed away").

     The defendant argues that because of his mental impairment,

any intent required for murder is vitiated, thus providing a

basis for the jury to find him guilty of the lesser included


     19
       "The difference between the elements of the third prong
of malice and wanton and reckless conduct amounting to
involuntary manslaughter lies in the degree of risk of physical
harm that a reasonable person would recognize was created by
particular conduct, based on what the defendant knew. The risk
for the purposes of the third of prong malice is that there was
a plain and strong likelihood of death . . . . The risk that
will satisfy the standard for wilful and wanton conduct
amounting to involuntary manslaughter 'involves a high degree of
likelihood that substantial harm will result to another.'"
Commonwealth v. Vizcarrondo, 427 Mass. 392, 396 (1998), S.C.,
431 Mass. 360 (2000), quoting Commonwealth v. Sires, 413 Mass.
292, 303 n.14 (1992).
                                                                     20


offense of involuntary manslaughter.      We previously have

rejected an argument similar to that advanced here by the

defendant involving a defendant's involuntary chemical

intoxication.     See Commonwealth v. Garabedian, 399 Mass. 304,

315-316 (1987).    There, we explained that the issue of

involuntary intoxication at the time of the killing "goes to the

question of criminal responsibility and not to the issue of

involuntary manslaughter."     Id. at 316.   The same can be said

here with evidence of mental impairment.     Even if a mental

impairment negates malice, a necessary element of murder, a

defendant would not be entitled to an instruction on involuntary

manslaughter.     "A killing without malice aforethought does not

automatically constitute involuntary

manslaughter."     Commonwealth v. Sires, 413 Mass. 292, 302

(1992).   Before an instruction on involuntary manslaughter may

be given, the defendant would be required to adduce evidence of

the "traditional elements" of involuntary manslaughter that the

jury might believe.     Id. at 302-303.   As we have said, no such

evidence was presented to the jury. 20



     20
       Cases of involuntary manslaughter require proof of
intentional wanton or reckless conduct, resulting in an
unintentional killing, and not proof of intentional conduct
bearing on a specific intent to kill or a specific intent to
injure. See Commonwealth v. Walker, 442 Mass. 185, 203 (2004).
See Commonwealth v. Welansky, 316 Mass. 383, 398 (1944) ("What
must be intended is the conduct, not the resulting harm").
                                                                     21


     Even if, however, the failure to give the instruction on

the basis now argued was error, it was not one likely to have

created a substantial risk of a miscarriage of justice.     As

in Commonwealth v. Tolan, 453 Mass. 634, 650 (2009), the jury

"rejected the option of murder in the second degree, the malice

element of which comes closest to involuntary manslaughter,"

namely "an intent to do an act that in the circumstances known

to the defendant, a reasonable person would have known created a

plain and strong likelihood that death will result."     Id.

See Commonwealth v. Novo, 449 Mass. 84, 99 (2007).     "In finding

the defendant guilty of murder in the first degree [based on

deliberate meditation only], the jury necessarily found that the

defendant had both a specific intent to kill and that the

shooting was premeditated."    Tolan, supra.   "These findings

negate the possibility of involuntary manslaughter."     Id.

See Commonwealth v. Diaz, 431 Mass. 822, 831 (2000) (conviction

of murder in first degree negates claim of prejudice in denying

instruction for involuntary manslaughter).

     3.   Conclusion.   The orders reducing the verdict and

denying the defendant's motion for a new trial are affirmed.

The defendant's conviction is affirmed.

                                     So ordered.
