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SJC-11428

                 COMMONWEALTH   vs.   MARIO GONZALEZ.



         Suffolk.      April 11, 2014. - August 19, 2014.

   Present:   Ireland, C.J., Spina, Gants, Duffly, & Lenk, JJ. 1

Homicide. Evidence, Admissions and confessions, Voluntariness
     of statement, Dying declaration, Prior misconduct,
     Intoxication, Intent. Practice, Criminal, Capital case,
     Admissions and confessions, Voluntariness of statement,
     Instructions to jury. Intoxication. Mental Impairment.
     Intent.


     Indictment found and returned in the Superior Court
Department on March 19, 2009.

     A pretrial motion to suppress evidence was heard by Charles
J. Hely, J., and the case was tried before Geraldine S. Hines,
J.


     David Keighley for the defendant.
     Helle Sachse, Assistant District Attorney, for the
Commonwealth.


     GANTS, J.   In the early morning hours of February 15, 2009,

the defendant stabbed his girl friend multiple times shortly

after they returned to his apartment from a local bar. The

     1
       Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
                                                                     2


victim died of her wounds later that morning.    A Superior Court

jury convicted the defendant of murder in the first degree on a

theory of extreme atrocity or cruelty, in violation of G. L. c.

265, § 1. 2   On appeal, the defendant claims that:   (1) the

statements the defendant made from his holding cell in response

to police questioning should have been suppressed because he had

earlier invoked his right to silence; (2) the admission in

evidence of the defendant's invocation of his right to silence

created a substantial likelihood of a miscarriage of justice;

(3) the trial judge erred in admitting statements made by the

victim as dying declarations; (4) the judge erred in admitting

certain testimony regarding the defendant's prior bad acts; and

(5) the absence of an instruction to the jury that they may

consider the defendant's consumption of alcohol in determining

whether the defendant acted in a cruel or atrocious manner in

causing the victim's death created a substantial likelihood of a

miscarriage of justice.     The defendant also requests that we

exercise our authority under G. L. c. 278, § 33E, to reduce the

conviction to a lesser included offense.    We reject the

defendant's first four claims, but agree with the fifth.        We

therefore reverse the defendant's conviction of murder in the

first degree and remand the case to the Superior Court to allow


     2
       The jury did not find the defendant guilty of murder in
the first degree on the theory of deliberate premeditation.
                                                                    3


the Commonwealth to choose between entry of a verdict of murder

in the second degree or retrial of the defendant on the charge

of murder in the first degree.

     Background.   We summarize the evidence at trial, but

reserve certain details for our discussion of the defendant's

claims of error.

     The defendant and the victim had been dating for

approximately six months before the killing.   The victim had

asked the defendant to stop drinking, and on one occasion, the

victim refused to go home with the defendant because he was

intoxicated.   The couple spent the evening of February 14, 2009,

at a local bar, celebrating Valentine's Day in the company of

the victim's mother.   During the course of the evening, the

victim had a few drinks and the defendant drank steadily.    When

they left the bar and entered a taxicab at approximately 1 A.M.,

both the defendant and the victim were intoxicated.   The

victim's mother was dropped off at her son's house, and the

taxicab then drove the defendant and the victim to the

defendant's apartment in the Dorchester section of Boston.     At

approximately 2:30 A.M., the victim telephoned her mother to

make sure she arrived home safely.

     At 3:15 A.M., the defendant telephoned 911, and reported,

in Spanish, that someone had entered his apartment and stabbed
                                                                        4


his wife. 3       The defendant told the 911 operator that he did not

know who had entered his home, and explained, "I came a while

ago, and my wife left the door open for him and someone entered

and I don't know what happened, but . . . she's letting out a

lot of blood."

     Police and emergency medical technicians arrived at the

apartment house within a few minutes, and the defendant brought

them to a bedroom in the third-floor apartment.        The victim was

lying on a bed, bleeding heavily from stab wounds.        There was

blood on the pillows and the doorknob, and blood spatter stains

on the walls, but no blood on the floor; a wet mop was

discovered behind the door of the defendant's bedroom, and the

floor was wet underneath the bed where the victim lay bleeding.

Boston police Officer James O'Brien several times asked the

victim who had stabbed her, and each time she replied, "I don't

want to die."        Upon removing the victim's clothing, emergency

medical technician Emilie Howard discovered that she had

suffered six stab wounds to her left shoulder, one to her right

shoulder, and one to her left chest just below the breast.        The

victim had no palpable blood pressure and was "close to dying."

In response to Howard's question about the length of the knife




              3
            The victim and the defendant were not married, but
they referred to each other as husband and wife.
                                                                     5


used in the attack, the victim implored, "Please don't let me

die," four times.

     Because he spoke only Spanish and the responding officers

spoke only English, the defendant was unable to communicate with

the officers who first arrived at the scene.    While the

emergency medical technicians prepared to transport the victim

to the hospital, the defendant was pat frisked; no weapons were

found on his person.    Shortly thereafter, Officer Omar Cepeda, a

fluent Spanish speaker, arrived and spoke with the defendant in

Spanish.    Officer Cepeda noted that the defendant had "red,

glassy eyes" and smelled of alcohol, and that the defendant had

fresh wounds to his nose and lip.    In response to Officer

Cepeda's inquiry, the defendant stated that he had arrived home

from drinking at a local bar to find the front door of the

apartment open and the victim lying on the bed in a pool of

blood.   According to the defendant, the victim told him that an

unknown person had entered the apartment, demanded money,

stabbed her, and fled.    In response to Officer Cepeda's question

about the cut on his nose, the defendant stated that he had

received it about three days ago in a fight.    Officer Cepeda

told Sergeant Daniel Tracey about the defendant's statements,

and Tracey told Cepeda to give the defendant the Miranda

warnings.   Cepeda recited the warnings to the defendant in

Spanish; the defendant said that he understood and had "nothing
                                                                     6


to hide."   Thereafter, in response to Cepeda's renewed inquiry

about the injury on his nose, the defendant repeated it was from

a fight two to three days previously.    The defendant, when asked

whether the victim had described her assailant, said that he

could not get a description from her.    Cepeda informed the

defendant that the victim was still alive, and asked, "Do you

want to tell me what happened here?"    The defendant replied,

"No."

     Meanwhile, paramedics Sean Murphy and Michael Sullivan

accompanied the victim in the ambulance to the hospital.    They

noted that the victim was pale, had no blood pressure, and had a

life-threatening wound.   As Murphy prepared to insert an

intravenous (IV) tube, the victim pulled away and looked scared.

Murphy explained to the victim that she was very sick, whereupon

the victim allowed him to start the IV.    Following instructions,

the victim squeezed Murphy's hand to indicate that she

understood what he was saying.   Thereafter, Murphy asked the

victim if her husband did this to her.    The victim answered,

"Yes."   Sullivan also asked the victim, "Your husband did this?"

and the victim answered, "Yes, my husband."    The victim arrived

at the hospital at approximately 3:30 A.M. 4




     4
       The victim succumbed to her injuries at 7:54 A.M.    The
cause of death was multiple stab wounds to the torso.
                                                                      7


     On arrival at the hospital, the paramedics told police what

they had learned in the ambulance.   This information was

communicated to Sergeant Tracey, who, while the defendant was

speaking with Officer Cepeda, ordered the defendant's arrest.

     When the defendant arrived at the police station, Cepeda

brought the defendant to a holding cell and told him that he

(Cepeda) would be across the hall if the defendant needed

anything.   As Cepeda started to walk away, the defendant said,

"I was the one that got hit with a beer bottle in the face."

Cepeda turned around and asked him what really happened.     The

defendant then stated that he had come home from the bar and

gotten into an argument with the victim about his drinking.     The

defendant said that the argument escalated, she hit him with a

beer bottle in the face, pulled out a black, folding knife, and

charged at him.   The defendant stated that he was able to twist

the knife away from the victim, and then stabbed her in the back

several times. As the victim ran towards the front door, the

defendant followed and said, "I'm sorry, I don't know what

happened. I don't know why I did this."   The defendant then

helped the victim into bed, and telephoned 911.   Officer Cepeda

asked the defendant about the location of the knife.   The

defendant first responded that it might be in the hallway, then

said that it might have been thrown out the bedroom window, and
                                                                     8


later said that it might be in another room in the apartment. 5

At approximately 9 A.M., the defendant called his roommate from

the telephone by the booking desk of the station.    The defendant

left a message on his roommate's voicemail, in which he said he

had been drinking and "had problems with the Puerto Rican woman"

and stabbed her.

     Discussion.   1.   Suppression of defendant's statements made

from the holding cell.    Before trial, the defendant moved to

suppress all statements he made to the police.    In the affidavit

accompanying the motion, the defendant stated that Cepeda "did

not speak Spanish, as I know it, very well," and that, as a

result, the defendant did not understand what Cepeda said, and

vice-versa.   He claimed, "Because of my inability to understand,

no statement made by me at the police station was voluntary."

He did not assert that he ever invoked his right to silence.

     After an evidentiary hearing, the motion judge, who was not

the trial judge, found that "[t]he defendant spoke freely and

coherently with Officer Cepeda in Spanish" and that "[t]he

defendant had no trouble in understanding Officer Cepeda or in

expressing himself to the officer in Spanish."    The judge denied

the motion to suppress, finding beyond a reasonable doubt that

all of the defendant's statements were voluntary and that the

     5
       The police recovered three knives from the premises and
one from the sidewalk in front of the apartment, but none
contained evidence of blood.
                                                                    9


defendant made a knowing, intelligent, and voluntary waiver of

his Miranda rights.    The motion judge did not address the claim

that the defendant makes on appeal -- that the defendant invoked

his right to silence after being given the Miranda warnings at

the apartment -- because no such claim was made at the time of

the motion and there was no evidence to support such a claim. 6

     But Officer Cepeda's testimony at trial regarding what the

defendant had said at the apartment after he waived his Miranda

rights differed from his testimony at the motion hearing.    At

the motion hearing, Cepeda testified that, after he told the

defendant that the victim was still alive, "I asked him again

what happened in the apartment, if anything else happened in the

apartment."    Cepeda stated that the defendant replied, "No,

nothing else happened."    At trial, however, Cepeda testified as

follows:

     The prosecutor: "Did you . . . tell him at that point
     anything about [the victim's] condition?"

     The witness:   "Yes, I did."

     The prosecutor:   "What did you say to him?"

     The witness: "I told him she's still alive.     Do you want
     to tell me what happened here?"

     The prosecutor:   "Did he say anything else?"

           6
            The Commonwealth agreed not to admit in evidence a
statement that the defendant made to the police after his
holding cell discussion with Officer Cepeda, conceding that it
had been obtained in violation of Commonwealth v. Rosario, 422
Mass. 48, 56 (1996).
                                                                    10



     The witness:   "He said no."

     The defendant contends that Officer Cepeda's testimony at

trial demonstrates that he invoked his right to remain silent by

answering, "No," to the officer's question.    The defendant,

however, did not object to the question or move to strike the

answer.   Nor did he ask the trial judge to revisit the denial of

the motion to suppress in view of this answer.    As a result, the

issue before us is not whether the motion judge erred in denying

the motion to suppress or whether the trial judge erred in not

revisiting the denial.    "[I]n reviewing a judge's ruling on a

motion to suppress, an appellate court 'may not rely on the

facts as developed at trial' even where the testimony differed

materially from that given at trial."    Commonwealth v. Deramo,

436 Mass. 40, 43 (2002), quoting Commonwealth v. Grandison, 433

Mass. 135, 137 (2001).    Rather, the issue before us is whether,

as part of our plenary review of capital cases under G. L.

c. 278, § 33E, the failure to recognize the defendant's

invocation of his right to silence created a substantial

likelihood of a miscarriage of justice.

     We consider first whether a substantial likelihood of a

miscarriage of justice arose from the admission of evidence at

trial that should have been suppressed had the defendant invoked

his right to silence.    The defendant made no further statement
                                                                  11


at the apartment following his purported invocation, and the

defendant concedes that his volunteered statement to Officer

Cepeda from the holding cell that he was "the one that got hit

with a beer bottle in the face" was admissible.   See, e.g.,

Miranda v. Arizona, 384 U.S. 436, 478 (1966) ("Volunteered

statements of any kind are not barred by the Fifth Amendment [to

the United States Consitution]").   Therefore, the only

statements at issue are those made by the defendant from his

holding cell after Cepeda asked him what really happened.

     Had the defendant raised this claim with the trial judge

and asked her to revisit the denial of the motion to suppress,

the judge could have conducted a new evidentiary hearing,

explored with Cepeda whether his testimony was more accurate at

the motion hearing or at trial regarding what he asked the

defendant and what the defendant said in response, and made

findings of fact based on her evaluation of Cepeda's credibility

as to what actually was said, which we would accept unless

clearly erroneous.   See Commonwealth v. Scott, 440 Mass. 642,

646 (2004).   Without the benefit of such findings, we must

determine whether the appeal can be resolved without remanding

the case for such findings.   We conclude that no remand is

necessary because, even if the defendant were to prevail on

remand as to every factual dispute and we were to conclude that

all the defendant's statements from the holding cell made after
                                                                  12


Cepeda asked him what really happened should have been

suppressed, the admission in evidence of those statements did

not so materially strengthen the Commonwealth's case as to

create a substantial likelihood of a miscarriage of justice.

     If these statements were not admitted, the jury would have

been left with evidence that the defendant's girl friend was

found on a bed in his apartment with multiple stab wounds; that

the defendant had fresh wounds on his nose and lip that he

reported he had suffered from a fight two or three days earlier;

that he told the police that he came back from a bar to find the

door open and the victim lying on a bed in a pool of blood even

though there was compelling evidence that he had just returned

from a bar with her; that he denied knowing anything about her

stabbing but told his roommate in a recorded voicemail that he

had stabbed the victim and told Cepeda that the victim had hit

him with a beer bottle; and that the victim, in the ambulance to

the hospital where she soon died, identified the defendant as

the person who had stabbed her.   Based on this evidence alone,

there could be no reasonable doubt that the defendant stabbed

the victim and lied about it to the police.

     The statements that the defendant claims should have been

suppressed provided his most favorable version of events:    an

escalating argument about drinking, culminating in an assault by

the victim, first with a beer bottle and then with a folding
                                                                    13


knife, which the defendant wrested from the victim and used to

stab her multiple times before apologizing and helping her into

bed and calling 911.     It was this narrative that, if credited,

permitted him to claim that he acted in self-defense or, if that

fell short, that he should be convicted only of manslaughter

because the killing was mitigated by reasonable provocation,

heat of passion in sudden combat, or the excessive use of force

in self-defense. 7    In short, the admission of this evidence, if

credited, gave him his best chance at an acquittal or a lesser

verdict.    Under these circumstances, the admission of this

evidence did not create a substantial likelihood of a

miscarriage of justice because we are substantially confident

that, had this evidence been suppressed, the jury verdict would

have been the same.    Commonwealth v. Ruddock, 428 Mass. 288, 292

n.3 (1998).

     2.    Admission in evidence of defendant's purported

invocation of silence.    The defendant also contends that the

admission in evidence of Cepeda's answer to the prosecutor's

question, "Did [the defendant] say anything else?" compromised


     7
       Defense counsel in his opening statement claimed that the
Commonwealth would be unable to prove that the defendant had not
acted in self-defense. In closing argument, defense counsel
stated, "If, in fact, it occurred as the defendant subsequently
told the police, that is, as a result of this physical
altercation, if you accept that version, then, while he is
responsible, it would not be murder, but it would be . . .
manslaughter."
                                                                  14


the defendant's constitutional right to silence. We recognize

that "Miranda warnings contain an 'implicit assurance that a

defendant's silence after such warnings will carry no penalty,'

and due process requires that, when in the hands of the police,

a defendant must be able to 'invoke core constitutional rights

without fear of making implied or adoptive admissions.'"

Commonwealth v. Beneche, 458 Mass. 61, 73 (2010), quoting

Commonwealth v. Peixoto, 430 Mass. 654, 657, 658-659 (2000).

See, e.g., Doyle v. Ohio, 426 U.S. 610, 618 (1976).   Where there

was no objection to the question, and no motion to strike the

answer, we consider whether the error, if any, created a

substantial likelihood of miscarriage of justice.   Beneche,

supra at 76.   We conclude that, even if the admission of this

evidence were error, it did not create a substantial likelihood

of a miscarriage of justice in this case.

     Although we recognize the risk that the jury may have made

an adverse inference that the defendant did not want to tell the

officer what really happened because he had committed the

stabbing, we are confident that this adverse inference would

have added little to the overwhelming weight of the evidence of

the defendant's guilt.   The prosecutor in closing argument

referred to this testimony, but suggested that it showed the

defendant's lack of empathy for the victim, not his fear of the
                                                                    15


consequences of telling the truth. 8   This inference was supported

more strongly by other testimony, including his demeanor during

the recorded phone call to his roommate and his characterization

of the victim as "the Puerto Rican."    Therefore, we are

substantially confident that, if this testimony had never been

heard by the jury, their verdict would have been the same.    See

id. at 75-76 (although defendant's statement, "I don't want to

talk about it," "should not have reached the jury, and the

prosecutor should not have mentioned it in the closing argument,

. . . [it] did not cause a substantial likelihood of a

miscarriage of justice").

     3.   Dying declaration.   The defendant argues that the judge

erred by permitting paramedic Sean Murphy to testify, over the

defendant's objection, that the victim, while being transported

to the hospital, asserted that her "husband" "did this to

[her]."   We conclude that the victim's statements were properly

admitted as dying declarations.

     "[A] victim's out-of-court statement may qualify as a dying

declaration if the 'statement [is] made . . . under the belief

of imminent death and [the declarant] died shortly after making

the statement, concerning the cause or circumstances of what the

     8
       The prosecutor in closing argument said: "Officer Cepeda
says to him, after [the victim] was taken away but before they
made any decision to arrest him: 'She's still alive. Is there
anything else you want to tell me?' 'No.' Not good, what
hospital is she going to, but no."
                                                                    16


declarant believed to be the declarant's own impending death or

that of a co-victim.'"   Commonwealth v. Middlemiss, 465 Mass.

627, 632 (2013), quoting Mass. G. Evid. § 804 (b) (2) (2013). 9

The victim's belief in her impending death may be inferred from

the character of the injury.   Commonwealth v. Key, 381 Mass. 19,

25 (1980).   The judge, and then the jury, must both determine

whether the requirements for admission have been met by a

preponderance of the evidence.    Commonwealth v. Nesbitt, 452

Mass. 236, 251 n.16 (2008), quoting Key, 381 Mass. at 22. 10

     The evidence was more than sufficient to support the

judge's finding that the victim's statements met this

evidentiary standard.    When the victim made the statements, she

had been stabbed eight times, and four of her wounds were

independently life threatening.    The wounds penetrated the

victim's lung and spleen, causing profuse bleeding and affecting



     9
       The admission of a dying declaration does not implicate
the defendant's constitutional right to confrontation.
Commonwealth v. Nesbitt, 452 Mass. 236, 249-251 (2008), quoting
Crawford v. Washington, 541 U.S. 36, 56 n.6 (2004). The
constitutional right "is most naturally read as a reference to
the right of confrontation at common law," Crawford, supra at
54, and the dying declaration was recognized at common law as an
exception to the right of confrontation when the Sixth Amendment
to the United States Constitution was adopted. Id. at 56 & n.6.
See Nesbitt, supra at 250.
     10
       The judge in this case instructed the jury that they
could consider this evidence only if they were to find that the
statements met the requirements for dying declarations by a
preponderance of the evidence.
                                                                    17


her breathing. 11   The victim was pale and distraught, and

seemingly in pain.    At the apartment, the victim pleaded, "I

don't want to die," and, "Please don't let me die," which she

repeated multiple times.     In the ambulance, the paramedics noted

that the victim had no palpable blood pressure.    In persuading

her to allow the insertion of an IV, a paramedic informed her

that she was "very sick."    She made the declarations regarding

who "did this to [her]" in the ambulance, and died less than

five hours later.    See Middlemiss, supra at 632; Nesbitt, supra

at 252.

     The defendant acknowledges that the admission of the

victim's statements is consistent with the standard articulated

in our decisions in Middlemiss, 465 Mass. at 631-632 and

Nesbitt, 452 Mass. at 251-252, but urges us to adhere to the

stricter requirements of older cases, where we held that a dying

declaration was not admissible "unless all hope of recovery has

gone from the mind of the declarant, and [s]he speaks under a

sense of impending death."    Commonwealth v. Polian, 288 Mass.

494, 497 (1934), and cases cited.    We decline to adopt the

defendant's proposed test.    The current standard appropriately

ensures that admission of the dying declaration is necessary

(because it requires that the declarant has died) and that the


     11
       The medical examiner testified that, by the time of her
death, the victim had lost approximately 1.2 liters of blood.
                                                                    18


statement is trustworthy (because it requires that the declarant

fear that death is imminent).    See, e.g., M.S. Brodin & M.

Avery, Massachusetts Evidence § 8.4.1 at 491 (8th ed. 2007).

The judge did not err in admitting the victim's statements as

dying declarations.

     4.   Prior bad acts.   At trial, the Commonwealth elicited

evidence of prior bad acts from two witnesses.    First, the

victim's mother testified that she twice heard the victim tell

the defendant to stop drinking, and that, a few days before the

victim was killed, she saw the defendant pull the victim's arm

after she told him that he should leave before he got drunk.

After defense counsel objected to the testimony, the judge

instructed the jury that the evidence was admitted for the sole

purpose of establishing the defendant's state of mind and the

relationship between the defendant and the victim.     In addition,

the taxicab driver, who had driven the defendant and the victim

on multiple occasions, testified over objection that, a few

months before her death, the victim said that she was expecting

a baby and would take it to Puerto Rico if the defendant did not

"do right." 12

     The defendant argues that this evidence was too remote to

rationally prove any issue at trial, and unduly prejudicial to

     12
       The taxicab driver later told the defendant that the
victim's threat was not serious, and she had said it just to
worry him. The victim's autopsy revealed no signs of a pregnancy.
                                                                    19


the defendant.   "While evidence of the defendant's prior bad

acts is not admissible to show bad character or propensity to

commit a crime, . . . such evidence is admissible if relevant to

show the defendant's motive, intent, or state of mind."

(Citations omitted.)   Beneche, 458 Mass. at 80.   "To be

sufficiently probative the evidence must be connected with the

facts of the case [and] not be too remote in time."

Commonwealth v. Butler, 445 Mass. 568, 574 (2005), quoting

Commonwealth v. Barrett, 418 Mass. 788, 794 (1994).    The judge

also must find that the probative value of the evidence in

question outweighs undue prejudice to the defendant.    Butler,

supra, quoting Barrett, supra.    We uphold a judge's decision to

admit prior bad acts absent an abuse of discretion.

Commonwealth v. Sharpe, 454 Mass. 135, 143 (2009), citing

Commonwealth v. Valentin, 420 Mass. 263, 270 (1995).

     The evidence reflecting the victim's prior dissatisfaction

with the defendant's drinking illustrated the nature of their

relationship and suggested a motive for the killing:    conflict

about his excessive drinking.    See Commonwealth v. Bradshaw, 385

Mass. 244, 269-270 (1982) ("prosecution [is] entitled to present

as full a picture as possible of the events surrounding the

incident itself" lest murder appear "as an essentially

inexplicable act of violence").   Where the evidence was
                                                                  20


accompanied by the judge's limiting instruction, we find no

error in its admission.

     We do not, however, see the relevance of the victim's

musing about returning to Puerto Rico if she had a baby and the

defendant did not "do right," where there was no evidence that

the victim was pregnant when she was killed or that there was

discussion on the night of the killing about the possibility of

her return to Puerto Rico.    But we also see no risk of prejudice

to the defendant arising from its admission, where it was not

clear what the victim meant by "do right," and where there was

no suggestion that the defendant had abused the victim or wished

to shirk his obligations if he were to father a child with the

victim.   If it were error to admit this testimony, it was not

prejudicial error.

     5.   Jury instructions regarding intoxication.   At the close

of the evidence, the judge instructed the jury on the elements

of murder in the first degree on the theories of deliberate

premeditation and extreme atrocity or cruelty, as well as the

lesser included offenses of murder in the second degree and

manslaughter.   The judge gave the following instruction on

intoxication after explaining murder in the first degree and its

lesser included offenses:    "In determining whether the

Commonwealth has proved beyond a reasonable doubt the

defendant's intent to commit the offenses I have just defined
                                                                   21


for you, you should consider all credible evidence relevant to

the defendant's intent, including any credible evidence of the

effect of drug or alcohol impairment on the defendant."   The

judge did not instruct the jury that they could consider any

credible evidence of the defendant's consumption of alcohol in

determining whether the defendant committed the killing with

extreme atrocity or cruelty, an instruction that in substance is

required where there is evidence that the defendant was under

the influence of alcohol at the time of the killing.   See

Commonwealth v. Rutkowski, 459 Mass. 794, 798 (2011) ("It should

have been made clear to the jury that they could consider

evidence of mental impairment on the specific question whether

the murder was committed with extreme atrocity or cruelty");

Commonwealth v. Perry, 385 Mass. 639, 648-649 (1982) (jury must

be instructed that they may consider defendant's intoxication in

determining whether killing was committed with extreme atrocity

or cruelty).   See also Model Jury Instructions on Homicide 61-62

(1999) & 49 (rev. 2013).   The defendant did not request such an

instruction or object to its absence.   Where the only theory of

murder in the first degree on which the jury found the defendant

guilty was extreme atrocity or cruelty, the defendant on appeal

argues that the absence of such an instruction was error that

created a substantial likelihood of a miscarriage of justice.
                                                                  22


     The absence of such an instruction was error.    See

Rutkowski, 459 Mass. at 797-799; Commonwealth v. McDermott, 393

Mass. 451, 457-459 (1984).   There was sufficient evidence of the

defendant's intoxication at the time of the killing to warrant

the instruction, and the instruction that was given regarding

alcohol impairment was limited to consideration of the

defendant's intent.   "Intent and knowledge are not aspects of

extreme atrocity or cruelty."   Rutkowski, supra at 797-798. 13

Therefore, the judge's instructions on intoxication would have

been understood by the jury to relate only to the elements of

premeditation and malice, and not to whether the defendant acted

with extreme atrocity or cruelty.

     We turn now to whether the error in the jury instructions

created a substantial likelihood of a miscarriage of justice.

The Commonwealth contends that there was no substantial

likelihood because its theory of extreme atrocity or cruelty

focused on the number of stab wounds the defendant inflicted on

the victim and her degree of suffering, and these Cunneen




     13
        "The Commonwealth need not prove that the extreme
atrocity or cruelty was premeditated, . . . that the defendant
intended to inflict extraordinary pain, . . . or that she knew
that her acts were extremely atrocious or cruel" (citations
omitted). Commonwealth v. Rutkowski, 459 Mass. 794, 798 n.3
(2011).
                                                                  23


factors would not be affected by the defendant's intoxication. 14

This overlooks the rationale for the jury instruction, which is

that "the jury should reflect the community's conscience in

determining what constitutes an extremely cruel or atrocious

killing."   McDermott, 393 Mass. at 458.   "In that role, the jury

must take a defendant's intoxication into account when

evaluating cruelty or atrocity aside from any issue of intent."

Id. at 458-459.   See Perry, 385 Mass. at 649, quoting

Commonwealth v. Gould, 380 Mass. 672, 686 (1980) ("Consideration

of the defendant's impaired capacity as well as the character of

his acts is essential if the jury [is] to serve fully and fairly

as the community's conscience in separating extreme atrocity or

cruelty from that atrocity or cruelty inevitably included in the

destruction of any human life").

     Here, there was strong evidence of the defendant's

intoxication at the time of the killing, and defense counsel in

closing argument told the jury that "the consumption of alcohol

that night could be key; it could be major."   But the jury

instruction on intoxication "effectively removed what may have

     14
       The Cunneen factors are: the defendant's indifference to
or pleasure in the victim's suffering, the victim's
consciousness and degree of suffering, the extent of the
victim's physical injuries, the number of blows delivered by the
defendant, the manner and force with which the defendant
delivered the blows, the weapon or weapons used by the
defendant, and the disproportion between the means needed to
cause death and the means used by the defendant. Commonwealth
v. Cunneen, 389 Mass. 216, 227 (1983).
                                                                     24


been [his] only viable defense to the question of extreme

atrocity or cruelty."    Rutkowski, 459 Mass. at 799.    Where the

jury did not find the defendant guilty on the theory of

deliberate premeditation, where the defendant was the first to

telephone 911 after the stabbing, and where there was no

evidence of a history of domestic abuse, we cannot say that "we

are substantially confident that, if the error had not been

made, the jury verdict would have been the same."    Ruddock, 428

Mass. at 292 n.3.   See Rutkowski, supra, citing Commonwealth v.

Wright, 411 Mass. 678, 682 (1992) ("[w]e cannot say that this

error did not likely influence the jury's verdict").      We,

therefore, vacate the verdict of murder in the first degree.

Because the error affected only the jury's finding regarding the

element of extreme atrocity or cruelty, and did not affect the

jury's finding regarding the elements of murder in the second

degree, the Commonwealth shall have the option of either

proceeding with a new trial on the murder indictment or

accepting a reduction of the verdict to murder in the second

degree.

     6.   Relief pursuant to G. L. c. 278, § 33E.   We have

considered the entire record pursuant to our obligation under

G. L. c. 278, § 33E.    With the exception of the jury

instruction, discussed above, there was no error that created a

substantial likelihood of a miscarriage of justice.
                                                                   25


     Conclusion.   The defendant's conviction of murder in the

first degree on the theory of extreme atrocity and cruelty is

vacated.    The Commonwealth shall have the option of either

proceeding with a new trial on the murder indictment or

accepting a reduction of the verdict to murder in the second

degree.    Within fourteen days of the issuance of this opinion,

the Commonwealth shall inform this court whether it will move to

have the defendant sentenced on the lesser offense of murder in

the second degree or whether it will retry the defendant for

murder in the first degree.    See Rutkowski, 459 Mass. at 800.

We will issue an appropriate rescript to the Superior Court

after the Commonwealth informs us of its decision.

                                     So ordered.
