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Commonwealth v. Boucher

Supreme Judicial Court of Massachusetts, Plymouth

March 23, 2016

Richard M. Boucher, Jr

         Argued September 11, 2015.

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          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.

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


          [47 N.E.3d 20] 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 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 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

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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 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, " [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.[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 ...

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