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SJC-11605

             COMMONWEALTH   vs.   RICHARD M. BOUCHER, JR.



      Plymouth.       September 11, 2015. - March 23, 2016.

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


Homicide. Assault and Battery by Means of a Dangerous Weapon.
     Armed Assault with Intent to Murder. Practice, Criminal,
     Capital case, Instructions to jury. Intoxication. Mental
     Impairment. Intent.



     Indictments found and returned in the Superior Court
Department on July 2, 2010.

    The cases were tried before Raymond P. Veary, Jr., J.


     Leslie W. O'Brien for the defendant.
     Robert C. Thompson, Assistant District Attorney, for the
Commonwealth.
     Chauncey B. Wood, Paul E. Nemser, & Joshua M. Daniels, for
Massachusetts Association of Criminal Defense Lawyers, amicus
curiae, submitted a brief.


    DUFFLY, J.    The defendant was convicted of murder in the

first degree, G. L. c. 265, § 1, on a theory of extreme atrocity

or cruelty in the May 27, 2010, shooting death of James Tigges
                                                                   2


at a party in Plymouth.1   The defendant also was convicted of

armed assault with intent to murder, and assault and battery by

means of a dangerous weapon, in the shooting of Tigges's friend,

Jackson Duncan, who was paralyzed from the chest down when a

bullet severed his spinal cord.2

      On appeal, the defendant contends that the judge's

instructions as to the manner in which the jury could consider

evidence of mental impairment by intoxication precluded them

from considering that evidence on the question whether the

defendant acted with extreme atrocity or cruelty.   Specifically,

he contends that the instructions improperly limited the jury's

consideration of that evidence to the elements of murder in the

first and second degree requiring intent or knowledge, such as

premeditation or malice, whereas conviction of murder in the

first degree on a theory of extreme atrocity or cruelty does not

require either that a defendant know his or her acts are

extremely atrocious or cruel, or that he or she intend them to

be.   In the alternative, the defendant suggests that this court

should adopt a specific intent requirement for murder committed

with extreme atrocity or cruelty, as was proposed in concurring

      1
       The defendant was acquitted of murder in the first degree
on a theory of premeditation.
      2
       In addition, the defendant was convicted of unlawful
possession of a firearm, G. L. c. 269, § 10 (a), and unlawful
possession of a loaded firearm, G. L. c. 269, § 10 (n).
                                                                      3


opinions in Commonwealth v. Riley, 467 Mass. 799, 828-829 (2014)

(Duffly, J., concurring), and Commonwealth v. Berry, 466 Mass.

763, 777-778 (2014) (Gants, J., concurring).   We decline the

invitation to adopt a new formulation of extreme atrocity or

cruelty at this time.   The defendant asks also that we exercise

our extraordinary power pursuant to G. L. c. 278, § 33E, and

reduce his degree of guilt to murder in the second degree.

    For the reasons that follow, we conclude that there was no

error requiring reversal, and we see no reason to grant relief

under G. L. c. 278, § 33E.

    1.    Background.   The jury could have found the following.

Early on the evening of May 26, 2010, Adam Egan was in his

apartment in Plymouth with a friend, when the two decided to

telephone some other friends and invite them over.   Tigges,

Duncan, the defendant, and another friend of his were among the

guests.   Eventually, the party grew to approximately twenty

people, in their late teens or early twenties, all of whom were

drinking alcohol.   The defendant, like most of the guests, was

drinking beer.   Some of the guests played a drinking game called

"beer pong," but no one testified to having seen the defendant

participate in the beer drinking game.   Two witnesses testified

that, although the defendant had been drinking, he "seemed

normal," and was acting no differently from his manner on

previous occasions when they had been at parties with him.      The
                                                                   4


defendant was not slurring his words, nor was he stumbling or

falling over.

     At one point, while the defendant was in the kitchen with

Duncan and another guest, the defendant dropped a gun; he said

"oh shit" and picked it up.   When Duncan inquired why the

defendant had the gun and what he would do if he got caught with

it, the defendant said that he would have no problem shooting a

police officer "if he had to."   Duncan thought the gun was a

"Glock," and he could see that it was loaded.    The defendant

told him, in a manner that appeared to be "kinda cocky" or

"bragging," that the bullets were hollow tip.3   The presence of

the gun in the apartment made Duncan "uncomfortable," and he

decided to leave the party.

     As Duncan and Tigges were leaving through the back door,

the defendant removed a bottle of beer from Duncan's back

pocket; Duncan's cousin, Mikayla Plaisted, took the bottle from

the defendant and handed it back.   Duncan and Tigges continued

walking outside to the back yard, with Plaisted close behind.

The defendant followed them, making comments; he called Tigges

and Duncan names like "pussy" and "bitch," and asked if Duncan


     3
       A ballistics expert testified that a hollow point bullet
is designed to expand when the projectile strikes an object, so
that when a hollow point bullet "strikes human tissue" it
results in a larger wound than that caused by other types of
bullets.
                                                                      5


thought he was a "tough guy."

     The defendant was somewhere between four and fifteen feet

from Tigges and Duncan when he began to shoot at them.4     Duncan

was shot first; Tigges jumped in front of him as the shots were

being fired.    The defendant continued to fire until the gun made

several clicking sounds.5    He then ran from the scene.   Plaisted

chased him for some distance, shouting, "I know who you are, you

shot my cousin, you're not going to get away with it, they're

going to find you."    The defendant turned around, looked at her,

raised his hand as though it were a gun, and smiled, before

continuing to run.

     Tigges was shot four times, in the abdomen and left leg.

He remained conscious after he was shot; he was moaning and

grimacing and appeared to be in a great deal of pain.      He said

"please don't touch me," "it hurts," and that it hurt

"everywhere."    Tigges was transported to a local hospital, and

then to a Boston hospital, where he died a few hours later as a

result of his wounds.    Duncan was shot once in the chest; the

bullet traveled through his body and transected his spinal cord.

Duncan survived, but was paralyzed from the chest down.      He was

     4
       Witnesses variously described the distance between the
defendant and the victims at that point as from four to five
feet, eight feet, eight to ten feet, and ten to fifteen feet.
     5
         The police later recovered nine spent shell casings at the
scene.
                                                                      6


one of the Commonwealth's key witnesses at trial.

     A trained police canine was dispatched to the scene shortly

after the shootings, at approximately 1:20 A.M. on the morning

of May 27, 2010, in an effort to locate the defendant.        The

canine tracked to a house several blocks away, but the defendant

was not found inside and no physical evidence was recovered.6        He

was apprehended approximately two weeks later, at a fast food

restaurant in another town.

     2.   Discussion.   a.    Instruction on diminished capacity.

The defendant argues that the judge's instruction on diminished

capacity was erroneous.      He claims that the instruction

improperly limited the jury's consideration of the evidence of

his intoxication and, consequently, did not allow the jury to

consider evidence of his diminished capacity from the

consumption of alcohol with reference to whether the shooting

was committed with extreme atrocity or cruelty.7     Specifically,

the defendant maintains that because the instruction on

intoxication limited the jury's consideration of the evidence of

     6
       The police later learned that the house where the canine
had alerted was that of one of the defendant's friends.
     7
       There was testimony at trial that the defendant had been
drinking, but the evidence of whether and to what degree the
defendant was intoxicated was disputed. In support of the
defendant's theory that he was highly intoxicated, one witness
testified that everyone at the party "was drinking beer" and
"getting drunk," including the defendant who by midnight was
"very drunk."
                                                                     7


intoxication to his knowledge and intent, they would not have

been able to consider his level of intoxication with reference

to whether the killing was committed with extreme atrocity or

cruelty because, under current law, to convict a defendant of

murder in the first degree on a theory of extreme atrocity or

cruelty, the Commonwealth is not required to prove that the

defendant either knew his or her acts were extremely atrocious

or cruel, or intended that they be so.

    We do not agree with the defendant's view of these

instructions.   The instructions correctly described the elements

of murder in the first degree on the theory of extreme atrocity

or cruelty.   The judge properly instructed the jury on the

existing state of the law, and the factors set forth in

Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983) (Cunneen),

that they were to consider in determining whether the killing

was committed with extreme atrocity or cruelty:    "indifference

to or taking pleasure in the victim's suffering, consciousness

and degree of suffering of the victim, extent of physical

injuries, number of blows, manner and force with which

delivered, instrument employed, and disproportion between the

means needed to cause death and those employed."    The judge also

instructed properly that "proof of malice aforethought is the

only requisite mental intent for a conviction of murder in the

first degree based on murder committed with extreme atrocity or
                                                                  8


cruelty," id., and that "murder committed with malice

aforethought may be found to have been committed with extreme

atrocity or cruelty, even though the murderer did not know that

his act was extremely atrocious or cruel," id., quoting

Commonwealth v. Monsen, 377 Mass. 245, 253 (1979).   See, e.g.,

Commonwealth v. Martinez, 437 Mass. 84, 91 (2002).   The judge

correctly explained that "[t]he inquiry focuses on the

defendant's actions in terms of the manner and means of

inflicting death and on the resulting effect on the victim."

    After giving the instruction on extreme atrocity or

cruelty, the judge then instructed on diminished capacity by

voluntary consumption of alcohol.   The challenged portion of

that instruction is as follows:


         "I now want to turn to the issue of diminished
    capacity. Whenever the defendant's knowledge or intent
    must be proved, the defendant's culpability rests upon the
    Commonwealth's proof of such knowledge or intent beyond a
    reasonable doubt. In other words, the Commonwealth must
    prove beyond a reasonable doubt that the defendant had the
    required knowledge or intent in order to prove that he
    committed the crime. Whenever the Commonwealth must prove
    the defendant's intention to do something, you should
    consider any credible evidence of the effect upon the
    defendant of his consumption of alcohol in determining
    whether the Commonwealth has met its burden of proof.
    Likewise, whenever the Commonwealth must prove the
    defendant's knowledge of any facts or circumstances, you
    should consider any credible evidence of the effect upon
    the defendant of his consumption of alcohol in determining
    whether the Commonwealth has met its burden.

         "More particularly, you should consider any credible
    evidence of the effect upon the defendant of his
                                                                   9


    consumption of alcohol in determining, one, whether [the
    defendant] deliberately premeditated the killing of James
    Tigges. That is whether he thought before he acted and
    whether he reached the decision to kill after reflection,
    at least for a short period of time. Two, whether [the
    defendant] intended to kill or to cause grievous bodily
    harm to James Tigges or was aware that his conduct created
    a plain and strong likelihood that Mr. Tigges's death would
    result from his conduct. And three, whether [the
    defendant] acted in a cruel or atrocious manner in causing
    the death of James Tigges.

         "In considering such evidence, you should consider it
    along with all other credible evidence relevant to the
    defendant's intent and/or knowledge. I reiterate, whenever
    the Commonwealth must prove that a defendant intended to do
    something or had knowledge of certain facts or
    circumstances, in order to prove a crime, such as first or
    second-degree murder, you should consider any credible
    evidence of the effect of his consumption of alcohol in
    determining whether the Commonwealth has met its burden of
    proving the defendant's intent or knowledge beyond a
    reasonable doubt."

    The defendant contends that, in context, this instruction,

with its frequent references to his knowledge or intent, would

have suggested to the jury that they could consider evidence of

intoxication only to establish the elements of the offense that

require intent or knowledge, such as premeditation and malice.

Under this view, the jury would have been precluded from

considering evidence of the defendant's impairment from

intoxication as it related to all of the Cunneen factors,

because "intent and knowledge are not aspects of extreme

atrocity or cruelty."   See Commonwealth v. Rutkowski, 459 Mass.

794, 797-798 (2011), citing Commonwealth v. Rosenthal, 432 Mass.

124, 130 (2000).
                                                                  10


    When the theory of extreme atrocity or cruelty is in play,

an instruction on voluntary intoxication that links

consideration of intoxication only to a defendant's intent or

knowledge, without also explaining that the jury may consider

intoxication in relation to whether the defendant committed the

killing with extreme atrocity or cruelty, is in error.    See

Commonwealth v. Howard, 469 Mass. 721, 750 (2014); Commonwealth

v. Gonzalez, 469 Mass. 410, 422 (2014).   An instruction on

voluntary intoxication also is erroneous if it is unclear from

the context in which it is given that the jury may consider

whether a defendant's intoxication negates a finding of extreme

atrocity or cruelty.   See Commonwealth v. Rutkowski, supra at

798 ("[T]he context in which the instruction was given,

immediately after the instruction on murder in the second

degree, suggested that mental impairment related only to the

issue of malice. . . .   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").

    Here, however, the instruction correctly conveyed that the

effect upon the defendant of his consumption of alcohol was

relevant to the Commonwealth's burden to prove that the

defendant acted in a cruel or atrocious manner.   Moreover, after

the jury requested clarification as to the instructions on
                                                                  11


murder in the first degree and voluntary intoxication, the judge

provided them with a written document containing the language

that he had used previously, formatted in such a way as to show

that "credible evidence of the effect upon the defendant of his

consumption of alcohol" should "[m]ore particularly" be

considered in reaching a determination whether the defendant

"acted in a cruel or atrocious manner in causing the death of

James Tigges."   We previously have concluded that a similar

instruction was not erroneous.   See Commonwealth v. Szlachta,

463 Mass. 37, 49 (2012) (not error to instruct that jury "may

consider evidence of impairment when considering whether [a

defendant] acted in a cruel or an atrocious manner causing the

death of [a victim]").   See also Commonwealth v. Oliveira, 445

Mass. 837, 848-849 (2006).

    b.   Request that jury be instructed to consider knowledge

or intent.   The defendant suggests in the alternative that we

should consider adding an additional element of knowledge or

intent in cases involving extreme atrocity or cruelty, above

that required to prove malice.   In his proposed jury

instructions, while acknowledging that it was inconsistent with

the current state of the law, defense counsel requested that, as

suggested by language in Commonwealth v. Gould, 380 Mass. 672,

686 & n.16 (1980) (Gould), the jury should be instructed that

they "may consider what effect, if any, the defendant's impaired
                                                                  12


capacity had on his ability to appreciate the consequences of

his choices" in relation to having acted with extreme atrocity

or cruelty.8   Before us, the defendant's argument expands upon

his request for a Gould instruction.   The defendant contends

that the jury should be instructed that when "a conviction is

based on the theory of extreme atrocity or cruelty, it must be

proven that the defendant intended that the consequences of his

actions be extremely atrocious or cruel."

     In our decisions following Gould, however, we have

reiterated that there is no requirement of intent, beyond the

requirement of malice needed for all convictions of murder, in

order to convict a defendant on a theory of extreme atrocity or

cruelty.   Thus, the instruction as given complies with the

current state of the law and was not erroneous.   See, e.g.,

Commonwealth v. Szlachta, supra at 47 (although Gould appeared

to suggest "that the court was introducing a new mens rea


     8
       The Commonwealth argues that defense counsel was not
sufficiently specific in challenging the absence of the
requested language in the judge's final charge, and therefore
that any objection to the absence of the proposed instruction
was not preserved. After the charge, counsel directed the
judge's attention to the omission of the requested language by
reference to the numbered paragraphs of his written
instructions, including the request for the Gould instruction.
See Commonwealth v. Gould, 380 Mass. 672, 684-685 (1980).
Although counsel's objection may not have been a model of
clarity, the request for that instruction was preserved. See
Commonwealth v. Morgan, 422 Mass. 373, 376-377 (1996);
Commonwealth v. Biancardi, 421 Mass. 251, 252 (1995).
                                                                   13


element . . . our jurisprudence following Gould clearly has

rejected this suggestion"); Cunneen, supra at 227 ("proof of

malice aforethought is the only requisite mental intent for a

conviction of murder in the first degree based on murder

committed with extreme atrocity or cruelty").

    3.    Review under G. L. c. 278, § 33E.   The defendant also

asks us to review his murder conviction under G. L. c. 278,

§ 33E, and reduce the degree of guilt to murder in the second

degree.   We have conducted a review of the entire record

pursuant to G. L. c. 278, § 33E, and we see no reason to set

aside or reduce the defendant's conviction.   See Commonwealth v.

LeBeau, 451 Mass. 244, 261-262 (2008).

                                    Judgments affirmed.
