Supreme Judicial Court of Massachusetts, Plymouth
Heard: September 6, 2016.
found and returned in the Superior Court Department on
September 21, 2012. The cases were tried before Frank M.
Gaziano, J., and a renewed motion for a required finding
of not guilty was considered by him.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
Kenneth H. Anderson for the defendant.
C. Thompson, Assistant District Attorney, for the
K. Shapiro, Assistant Attorney General, for the Attorney
General, amicus curiae, submitted a brief.
Present: Gants, C.J., Botsford, Lenk, Hines, Lowy, &
defendant appeals from his convictions of murder in the
second degree and a related charge. He argues that, based on
the evidence presented at trial and the prosecutor's
closing argument, his murder conviction should be reversed or
reduced to a conviction of manslaughter. We conclude that
there was sufficient evidence to convict the defendant of
murder in the second degree and that the prosecutor's
closing argument was not improper. However, for the reasons
discussed below, we do not decide whether the defendant is
entitled to a reduced verdict.
defendant argues as well that this court should expand its
holding in Commonwealth v.
Walczak, 463 Mass. 808 (2012), to require that in
all cases where the Commonwealth seeks to indict a person for
murder, whether the person is a juvenile (as in
Walczak) or an adult (as here), and there is
substantial evidence of mitigating circumstances or defenses
presented to the grand jury, the grand jury must be
instructed on the elements of murder and the significance of
mitigating circumstances and defenses. We conclude that this
defendant is not entitled to relief based on the absence of
any such instructions. However, we also believe it is
important for the court to gain a better understanding of
current grand jury instruction practices before deciding
whether the holding of the Walczak case should be
expanded in the future. Accordingly, we will appoint a
committee to study and make recommendations about this
jury could have found the following. The fatal altercation
occurred in the East Wareham section of Wareham outside a
high school graduation party hosted by Dylan Burns. The
gathering began on the afternoon of July 28, 2012, and
extended into the early morning hours of July 29. The two
victims, Brendan Mahoney and Brian Mahoney,  arrived at
the party around 2 or 3 £.M. on July 28 and, like many
of the partygoers, were drinking alcohol despite being
underage. All told, a "half keg" and two
thirty-packs of beer were consumed throughout the day and
night. The defendant, Bryan Grassie, arrived at the party
after midnight on July 29, appearing intoxicated and acting
"confrontational" and "aggressive." The
defendant had not been invited to the party, but he knew
Burns, the host.
the next few hours, the defendant repeatedly confronted
others at the party, including the Mahoney brothers, and
either discussed fighting or offered to fight them. For
example, the defendant at one point told the brothers,
"[I]f there's a problem right now, we can go outside
and take care of it." During a confrontation, the
brothers forced the defendant up against a wall and told him
"no one there wanted to fight" and "to leave
before he got hurt." Brendan then removed a cigarette
from behind the defendant's ear and threw it in the
defendant's face. Brian spoke with Burns and asked him to
get the defendant "the fuck out of here before I
[Brian], like, hit him or something." Eventually, Burns
did intervene. However, the defendant and the Mahoney
brothers continued to exchange words about the possibility of
fighting at a nearby beach. As Burns was leading the
defendant away from the brothers, Brian reached over
Burns's shoulder and pushed the defendant's face
was able to coax the defendant outside, although the
defendant remained confrontational. He told Burns, "My
problem is with . . . the Mahoney [b]rothers, " and
said, "[H]ave them come outside and . . .we'll solve
it. We'll take care of it with them." Once outside,
the defendant at first would not leave the front of the
house, and yelled at the Mahoneys to come outside and fight
him. When Brian came out, the defendant said,
"[L]et's go down to the beach. We'll fight
there, " and Brian said, "[A]lright, I'll see
you in like [ten] minutes, " before going back inside.
The defendant continued to yell about fighting. After some
time outside, however, the defendant began to walk away from
the party. He headed down Priscilla Avenue, in the direction
of his home and also the beach; as he walked, he continued
shouting insults back toward the party.
events at the heart of this case occurred shortly thereafter.
The trial witnesses essentially agreed that after the
defendant began walking away from the party, the Mahoney
brothers pursued him down Priscilla Avenue, followed by
several others from the party. One witness testified that the
defendant was "walking backwards" -- that is,
facing the party -- as he left. This witness described the
defendant as "turned around" and
"waiting" in a "fighting stance" or
"in a ready position waiting to fight, " with his
feet "shoulder width apart" and his hands out of
his pockets as the brothers approached. The defendant and the
brothers then engaged in physical combat in the shadows
beyond a streetlight. A surveillance audio-video system
mounted on the outside of a nearby home on Priscilla Avenue
captured audio from the fight, as well as some video images
from before and after.
following is apparent from the audio-video recording.
Footsteps walking can be heard, and a very shadowy figure
(identified by several witnesses as the defendant) can
vaguely be made out, moving down the road away from the
party. Over the first twenty seconds of the
recording, the defendant can be heard saying, "Follow
me, let's go ... . Follow me, you little pussies.
I'll wait there, dude. I'll wait there for you. You
guys are fucking bitches, you guys won't come. You
fucking pussies. I'll fight you guys like one-on-one. Not
even one-on-one. Two-on-one, three-on-one, you fucking little
pussies." Over the next three seconds, the defendant
says nothing further as he continues to walk down Priscilla
Avenue and his shadowy figure moves out of the camera's
view. As it does so, the sound of running footsteps becomes
audible. Although the video recording does not reveal any
visual image of a person or persons, the witnesses at trial
essentially agreed that the Mahoney brothers were the first
partygoers to run down Priscilla Avenue after the defendant,
followed by Burns, James Waitz, and Matthew Ingargiola.
Within three seconds of the sound of running footsteps, a
series of thuds or crashes is heard, along with additional
running footsteps. Approximately ten seconds elapse between
the first crash and the sound of someone's voice saying,
"He's got a knife, " followed immediately by a
scream. Six seconds later, someone says, "Call the
ambulance." About five seconds after that, a video image
shows Brendan limping quickly away from the fight, back
toward the site of the party, accompanied by Brian and two
others running beside him, identified at trial as Burns and
Mahoney brother had been stabbed several times. Brendan
suffered five stab wounds and one incised wound. One of the
stab wounds was to the abdomen, identified by the medical
examiner as the only wound that could have caused his death.
The remaining wounds were to Brendan's legs or buttocks.
Following surgical intervention, Brendan died on July 31,
2012. Brian suffered two stab wounds to his abdomen and side,
and others to the buttocks; the injuries required surgical
the weapon used in the stabbings was not recovered, there was
testimony that the defendant had exhibited a folding knife,
in a nonthreatening manner, to one person at Burns's
party and to a different person at an earlier party held the
same night. The Commonwealth introduced in evidence two
knives that were described by those two individuals as
looking similar to the knife the defendant had shown to them.
Each of the model knives has a blade approximately three and
one-half inches long and a handle approximately four and
one-half inches long. The model knives can be opened with one
hand by pressing certain areas of the handle.
Plymouth County grand jury indicted the defendant for murder
in the first degree (Brendan), armed assault with intent to
murder (Brian), and assault and battery by means of a
dangerous weapon (Brian). The defendant moved to dismiss the
indictments because the Commonwealth had failed to instruct
the grand jury on the elements of murder in the first degree,
murder in the second degree, and voluntary manslaughter, and
on mitigating circumstances and defenses. The motion was
denied. The defendant sought review before a single justice
in this court pursuant to G. L. c. 211, § 3. The single
justice denied relief.
defendant thereafter was tried before a jury. At the close of
the Commonwealth's case and at the close of all the
evidence, the defendant moved for a required finding of not
guilty insofar as the indictments alleged murder (in both
degrees) and armed assault with intent to murder. The trial
judge denied the motions. With respect to the murder
indictment, the judge instructed the jury on murder in the
first degree (on the theories of deliberate premeditation and
extreme atrocity or cruelty); murder in the second degree;
voluntary manslaughter; self-defense; and the mitigating
circumstances of (1) heat of passion on reasonable
provocation, (2) heat of passion induced by sudden combat,
and (3) the use of excessive force in self-defense. The jury
found the defendant guilty of murder in the second degree and
assault and battery by means of a dangerous weapon; the
defendant was found not guilty of armed assault with intent
to murder and the lesser included offense of armed assault
with intent to kill.
the verdicts, the defendant renewed his motion under Mass. R.
Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), for a
required finding of not guilty on the charge of murder. In
the alternative, he moved under the same rule for a reduction
in the verdict of murder in the second degree to
manslaughter, or for a new trial. The trial judge denied all
three aspects of the motion. The defendant appealed from his
convictions to the Appeals Court, and we transferred the case
to this court on our own motion.
Motion for a required ...