Supreme Judicial Court of Massachusetts, Plymouth
September 11, 2015.
Indictments found and returned in the Superior Court
Department on July 2, 2010.
cases were tried before Raymond P. Veary, Jr., J.
W. O'Brien for the defendant.
C. Thompson, Assistant District Attorney, for the
B. Wood, Paul E. Nemser, & Joshua M. Daniels, for
Massachusetts Association of Criminal Defense Lawyers, amicus
curiae, submitted a brief.
Gants, C.J., Spina, Botsford, Duffly, & Hines, JJ.
N.E.3d 20] Duffly, J.
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 at a
party in Plymouth. 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
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
opinions in Commonwealth v. Riley,
467 Mass. 799, 828-829, [47 N.E.3d 21] 7 N.E.3d 1060 (2014)
(Duffly, J., concurring), and Commonwealth
v. Berry, 466 Mass. 763, 777-778, 2 N.E.3d
177 (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.
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.
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 defendant was not slurring his words,
nor was he stumbling or falling over.
point, while the defendant was in the kitchen with Duncan and
another guest, the defendant dropped a gun; he said, "
[O]h 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. The presence of the gun in the
apartment made Duncan " uncomfortable," and he
decided to leave the party.
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