Heard: September 6, 2018.
found and returned in the Superior Court Department on March
8, 2011. The cases were tried before Janet L. Sanders, J.
Supreme Judicial Court granted an application for direct
Rebecca A. Jacobstein, Committee for Public Counsel Services,
for the defendant.
M. Tilley, Assistant District Attorney (Julie S. Higgins,
Assistant District Attorney, also present) for the
Marguerite T. Grant, Assistant District Attorney, for
district attorney for the Norfolk district & others,
amici curiae, submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
an argument with her boyfriend, the defendant set a bag of
his clothes on fire inside their apartment, then fled the
building without calling for help or warning the occupants of
other units. One person died in the resulting two-alarm fire.
Three others, including two firefighters, were injured. A
Superior Court jury convicted the defendant of arson of a
dwelling house, G. L. c. 266, § 1; felony-murder in the
second degree, G. L. c. 2 65, § 1; and two counts of
injuring a firefighter, G. L. c. 265, § 13D1/2. The
defendant appealed, and we granted her application for direct
defendant raises several challenges to the arson conviction,
which served as the predicate for the other charges: that the
evidence was insufficient to prove that she specifically
intended to set the apartment building on fire; that the
trial judge erred, as a matter of law, in instructing the
jury on an "alternative theory" of arson, namely,
that she also could be found guilty if she accidentally or
negligently set the fire and then wilfully and maliciously
failed to extinguish or report it; and that the Commonwealth
expressly waived the right to pursue that alternative theory
by its response to her pretrial motion for a bill of
particulars. Moreover, she challenges the conviction of
felony-murder in the second degree on the ground that the
judge declared, as a matter of law, that arson is an
inherently dangerous felony, rather than letting the jury
determine whether her conduct evidenced a conscious disregard
for the risk to human life. Finally, the defendant argues
that the verdicts should be vacated and the indictments
dismissed because the Commonwealth declined her request to
instruct the grand jury regarding the elements of the
parties, both in the trial court and on appeal, have treated
the charge of arson under G. L. c. 266, § 1, as a
specific intent crime. As discussed herein, however, arson
under § 1, which is derived from the common law, is a
crime requiring general intent with malice. We accordingly
provide an appendix containing a model jury instruction for
arson of a dwelling house under G. L. c. 266, § 1, which
has been unanimously approved and recommended by this
the defendant's claims on appeal, we conclude that the
evidence, viewed in a light most favorable to the
Commonwealth, was sufficient to establish that she
specifically intended to burn the apartment building. The
court unanimously agrees that the instruction on the
alternative theory of arson was erroneous, and a majority
concludes that the error, whether it is viewed for prejudice
or for a substantial miscarriage of justice, does not warrant
overturning the verdicts. As there also is no merit to the
defendant's other arguments, the verdicts are affirmed.
facts developed at trial are as follows. On December 24,
2010, the defendant was living in a ground-floor unit of a
two-story apartment building in Chelsea with her boyfriend,
William Brewer, and their two year old son. Early that
evening, the defendant dropped their son off to spend the
night at a relative's home, arriving back at the
apartment at approximately 9 £.M. Immediately upon the
defendant's return, she and Brewer engaged in a heated
argument that resulted in Brewer leaving for a nearby bar.
Approximately one hour later, he returned and found that the
defendant, still angry, had locked him out of the apartment.
From the sidewalk outside, Brewer spoke to the defendant
through a window and attempted to calm her down and persuade
her to let him in. Being unsuccessful in both regards, Brewer
departed again, this time looking to buy marijuana.
fifteen minutes later, Brewer returned again. This time, as
he approached the building, he observed the defendant running
out of the building. When he asked her what she was doing,
she responded that his clothes were on fire. The defendant
had lit a piece of paper on fire and tossed it on a duffel
bag full of Brewer's clothes, which was sitting on the
floor in a corner of the apartment. She had then changed out
of her night clothes and left, locking the exterior door of
the building behind her,  and without calling for help or
alerting other occupants. As she then stood outside arguing
with Brewer about what she had done, flames were already
visible inside through one of the apartment windows.
two argued, a passing car came to a halt, and a woman and
three men jumped out. The woman immediately used her cellular
telephone to call 911. She then asked what had happened, and
the defendant replied that she had set Brewer's clothes
on fire. Meanwhile, one of the men, believing that Brewer had
said there were children inside, attempted to enter the
building. He broke down the locked exterior door, only to
find that the fire had already become so intense that it was
not safe to go inside.
this was occurring, a man and a woman who occupied the unit
directly above that of the defendant attempted to leave the
building using the interior staircase, but the fire had
already rendered it impassable. Trapped on the landing at the
top of the stairs, they began shouting for help and taking
turns trying to breathe through a small window. The man, his
upper body already covered in burns, squeezed through the
window and jumped to the street below, suffering a broken
ankle and spinal fracture in the process. The woman,
meanwhile, remained trapped on the second floor until
firefighters located her, unconscious; she died of smoke
inhalation and thermal injuries. Two firefighters also were
woman who had called 911 confronted the defendant. The
defendant again stated that she had set Brewer's clothes
on fire, and added that she was angry that he had left
without her to purchase drugs. She also stated that it was not
the first time she had done something like this. She
destroyed personal items belonging to Brewer on several prior
occasions after the two had argued. She had even set a bag of
his clothes on fire once before, but Brewer quickly managed
to extinguish the fire.
the cross-examination of witnesses at trial, the defendant
challenged whether the Commonwealth could prove beyond a
reasonable doubt either that she set the fire or, if she did,
that she did so with the specific intent to burn the
dwelling. She also called one witness, a forensic
psychologist, who opined that the defendant suffered from low
cognitive functioning and posttraumatic stress disorder
(PTSD) that "quite likely" impaired her
ability to fully appreciate and understand the consequences
of her acts as compared to the average person. He further
opined, however, that she had the capacity to appreciate the
wrongfulness of her conduct and to conform her conduct to the
requirements of the law at the time she set the fire (i.e.,
she was, in his opinion, criminally responsible for her
close of evidence, the jury considered charges of arson of a
dwelling house; felony-murder in the second degree; murder in
the second degree based on malice; involuntary manslaughter;
and two counts of injuring a firefighter. As to all
charges, the jury were instructed on the options of finding
the defendant not guilty or not guilty by reason of lack of
criminal responsibility. The jury found the defendant guilty
of arson, felony-murder in the second degree, and injuring
the two firefighters.
Intent necessary to prove arson.
areas of criminal law pose more difficulty than the proper
definition of the mens rea required for any particular
crime." United States v.
Bailey, 444 U.S. 394, 403 (1980). As the present
case makes clear, this is true for the crime of arson of a
dwelling house under G. L. c. 266, § 1, concerning at
least whether a conviction requires proof of specific or
general intent and whether a conviction can be secured
against someone who accidentally or negligently sets a fire
and then wilfully and maliciously fails to extinguish or
report it. We use this opportunity to clarify those issues.
"venerable distinction at common law between general and
specific intent has been the source of a good deal of
confusion" (citations and quotations omitted).
Commonwealth v. Gunter, 427 Mass.
259, 268 (1998), S.C., 456 Mass. 1017 (2010) and 459 Mass.
480, cert, denied, 565 U.S. 868 (2011). As noted, the parties
here have treated arson under G. L. c. 266, § 1, as a
specific intent crime, requiring proof that the defendant not
only "consciously intended to take certain actions, but
that [s]he also consciously intended certain
consequences." Id. at 268. See id. at
268-269 & n.l2 (discussing distinction between common-law
concepts of "general" and "specific"
intent). To date, we have not had occasion to address
squarely whether G. L. c. 266, § 1, requires proof of
with all matters of statutory interpretation, we look first
to the plain meaning of the statutory language. . . . Where
the language is clear and unambiguous, it is to be given its
'ordinary meaning.' ... Of course, this meaning must
be reasonable and supported by the purpose and history of the
statute" (citations and quotations omitted).
Commonwealth v. Mogelinski, 466
Mass. 627, 633 (2013) . To secure a conviction for arson in
this case, the statute required proof that the defendant
"wilfully and maliciously set fire to, burn[ed], or
cause[d] to be burned ... a dwelling house." G. L. c.
266, § 1. To establish that the defendant acted with a
culpable state of mind, therefore, required proof that she
acted "wilfully and maliciously."
our jurisprudence has not addressed whether arson requires
specific intent, we have had occasion, in arson and nonarson
cases alike, to consider the meaning of the terms
"wilfully" and "maliciously." Recently
this court, interpreting another statute, noted that the term
"wilfully" has not been defined consistently in
either dictionaries or across our jurisprudence. See
Millis Pub. Schools v. M.P., 478
Mass. 767, 775-776 (2018) (in context of analyzing statute
that forbids wilfully failing to attend school, noting that
some dictionaries and appellate decisions focus on
actor's purpose, others on whether actor's conduct
was voluntary or intentional) . At its core, however, it
"means intentional and by design in contrast to that
which is thoughtless or accidental."
Commonwealth v. McGovern, 397 Mass. 863,
868 (1986) (wilful and malicious destruction of property).
For purposes of arson, malice "comprises only three
components .... 'The wilful doing of an unlawful act
without excuse is ordinarily sufficient to support the
allegation that it was done maliciously and with criminal
intent.'" Commonwealth v. Dung
Van Tran, 463 Mass. 8, 26 (2012), quoting
Commonwealth v. McLaughlin, 431
Mass. 506, 513 n.6 (2000). Although both "malicious" and
"wilful" require that a person act intentionally,
the definitions shed no light on whether the statute requires
specific or general intent.
true that in certain nonarson cases we have suggested that
"[c]onduct is wilful when the actor intends both the
conduct and its harmful consequences."
Commonwealth v. Schuchardt, 408
Mass. 347, 352 (1990) (wilful and malicious destruction or
injury of personal property, dwelling house, or building of
another under G. L. c. 266, § 127). See
Commonwealth v. McDonald, 462
Mass. 236, 242 (2012) (considering term "wilfully"
in criminal harassment statute, G. L. c. 265, § 43A).
Here, a specific intent instruction was requested by both
parties and utilized by the trial judge. Yet, such an
interpretation has never been squarely adopted for § 1.
Dung Van Tran, 463 Mass. at 12, 27, the defendant
was charged with arson after he poured gasoline in such a
manner that it landed on himself and two others, as well as
on the floor of the apartment, and then ignited it. He argued
that the evidence established, at most, that he intended to
burn himself and that the resulting burning of the apartment
was accidental. Id. at 26. This court disagreed and
concluded that the evidence was sufficient for the jury to
"have found, consistent with the [trial] judge's
supplemental instruction on [wilfulness], that the defendant
intended not only his conduct, i.e., lighting the fire, but
also the resulting harm, which . . . was the burning of the
apartment" (quotations omitted) . Id. at 27.
Although the supplemental instruction clearly required a
finding of specific intent, Dung Van Tran was a
sufficiency of the evidence case. It did not involve a
challenge to the propriety of the supplemental instruction or
consider whether proof of specific intent is required for a
conviction of arson.
although "'willful' may have several meanings
when read in isolation, its meaning in any particular statute
may be determined from examining the act itself as well as
the larger statutory scheme." Franklin Office Park
Realty Corp. v. Commissioner of the
Pep't of Envtl. Protection, 466 Mass. 454, 463
(2013). Accordingly, we view the term "wilfully" in
the context of the broader phrase "wilfully and
maliciously," as used historically in the crime of
arson. "At common law the offence of arson consisted of
the wilful and malicious burning of the house of
another" (citation omitted). Commonwealth
v. Lampthe, 343 Mass. 417, 419 (1961). See
A. F. Curtis, A Treatise on the Law of Arson § 57, at 71
(1936) (Curtis); W. R. LaFave, Criminal Law § 21.3, at
1365 (6th ed. 2017). The same common-law language -- wilfully
and maliciously -- appears in the current version of §
1, enacted in 1932. See St. 1932, c. 192, §
1. The same language also appeared in every
predecessor version of § 1, dating back more than two
hundred years. See, e.g., St. 1784, c. 58, § 1; R.S.
(1836) c. 126, §§ 1-2; Pub. St. 1882 c. 203, §
1; Rev. L. c. 208, § 1 (1902); G. L. c. 266, § 1
(1921); G. L. (Ter. Ed.) c. 266, § 1. Quite simply, the
crime of arson in Massachusetts, including the requirement
that a defendant have acted "wilfully and
maliciously," has deep roots, and, as this court has
previously acknowledged, to ascertain the meaning of the
words in § 1, "we must turn to the common law, for
the statute was undoubtedly drawn against that
background." Lamothe, 343 Mass. at 419). See
Commonwealth v. DeCicco, 44
Mass.App.Ct. Ill. 127 (1998) (common-law understanding of
arson was "engrafted in § 1") .
arson has been widely acknowledged as a crime of general
intent. See, e.g., People v.
Nowack, 462 Mich. 392, 406 (2000) ("Common-law
arson is a general intent crime"); Linehan v.
State, 476 So.2d 1262, 1265 (Fla. 1985) (same);
Veverka v. Cash, 318 N.W.2d 447,
450 (Iowa 1982) (same); United States v.
Doe, 136 F.3d 631, 635 (9th Cir. 1998), cert,
denied, 526 U.S. 1041 (1999) (same); United States
v. Acevedo-Velez, 17 M.J. 1, 2-3 (CM.A.
1983) (same) . See also D.A. Dripps, R.M. Boyce & R.M.
Perkins, Criminal Law and Procedure, at 383 (13th ed. 2017)
("if without justification, excuse or mitigation, one
sets a fire which obviously creates an unreasonable fire
hazard for another's dwelling, which is actually burned
thereby, the result is common-law arson even if this was not
an intended consequence"); W.R. LaFave, Criminal Law,
supra at § 21.3(e), at 1375-1376 (common-law
arson involved either "intentional[ly] burning"
dwelling house of another or "intentionally doing an act
[e.g., starting a fire or burning his own premises] under
circumstances in which the act created a very high risk of
burning the dwelling house of another, where the actor knew
of that risk but nonetheless engaged in the risk-taking
act"); R.M. Perkins, Criminal Law, at 175 (1957) (state
of mind required for common-law arson, "assuming . . .
there are no circumstances of justification, excuse or
mitigation, is either an intent to burn the dwelling of
another, or an act done under such circumstances that there
is obviously a plain and strong likelihood of such a
other jurisdictions where the "wilful and
malicious" language was adopted by statute or code,
courts have uniformly followed the common law and interpreted
the language as seting forth a general intent crime. This is
true at the State level, see, e.g., State
v. Scott, 118 Ariz. 383, 385 (Ct. App.
1978); People v. Atkins, 25
Cal.4th 76, 84-85 (2001); Linehan, 476 So.2d at
1264-1265, State v. O'Farrell,
355 A.2d 396, 398 (Me. 1976); State v.
Doyon, 416 A.2d 130, 135 (R.I. 1980); at the federal level,
see Doe, 136 F.3d at 634-635 (interpreting 18 U.S.C.
§ 81); United States v. M.W.,
890 F.2d 239, 240-241 (10th Cir. 1989) (same); and even under
the code of military justice, see Acevedo-Velez, 17
M.J. at 7 (interpreting art. 126 of Uniform Code of Military
contrast, in jurisdictions where arson has been declared a
specific intent crime, the statutes have been drafted or
amended to achieve that end. For example, in Wyoming, the
statute was drafted to provide that a "person is guilty
of first-degree arson if he maliciously starts a fire or
causes an explosion with intent to destroy or damage an
occupied structure" (emphasis added).
Keats v. State, 64 P.3d 104, 107
(Wyo. 2003), quoting Wyo. Stat. Ann. § 6-3-101(a).
There, the court held that the statute "can be
categorized as a 'specific intent' crime."
Id. In Maryland, the statute is still drafted in a
form akin to that of the common law, see Md. Code Ann.,
Criminal Law, § 6-102 (LexisNexis 2012), but the
Legislature has expressly defined "maliciously" as
"acting with intent to harm a person or property,"
id. at § 6-101 (c), and "willfully"
as "acting intentionally, knowingly, and
purposefully," id. at § 6-101(e). See
Holbrook v. State, 364 Md. 354,
371 (2001) (given "the plain language used to define
'maliciously' and 'wilfully,' we conclude
that the Legislature intended for arson to be a specific
intent crime"). Contrast DeBettencourt
v. State, 48 Md.App. 522, 523-524, 532 (Md.
Ct. Spec. App. 1981), cert, denied, 290 Md. 713 (1981) (prior
version of Maryland arson statute containing no definitions
of "wilfully" and "maliciously," followed
common law intent).
the Legislature has given no indication in more than two
hundred years that it intended to deviate from the common-law
general intent requirement for the crime of arson. Moreover,
if the Legislature had intended to require specific intent,
it would have used more explicit language as it has in other
criminal statutes, including a provision involving burning of
insured property. See G. L. c. 266, § 10 ("Whoever,
wilfully and with intent to defraud or injure the
insurer, sets fire to . . ." [emphasis added]); G.
L. c. 265, § 18 (b) ("Whoever, being armed with a
dangerous weapon, assaults another with intent to rob or
murder ..." [emphasis added]). We conclude,
therefore, that proof of general intent with malice is all
that is required.
sure, § 1 is still far from being some form of strict
liability offense. Requiring malice "ensures that the
act is done with a design to do an intentional wrongful act
without any legal justification, excuse or claim of right. .
. . [The] willful and malice requirement ensures that the
setting of the fire must be a deliberate and intentional act,
as distinguished from an accidental or unintentional ignition
or act of setting a fire" (quotations and citations
omitted). Atkins, 25 Cal.4th at 88. See
Commonwealth v. Ely, 388 Mass. 69,
74 (1983) ("requirement that the act be wilful
eliminate[s] accidental or negligent fires" from reach
of statute). See also Curtis, supra at § 2, at
3 (throughout arson's long history "distinction
between intentional and accidental fires has always been
maintained, the latter never forming a basis for a criminal
we conclude that, even in the absence of proof that a
defendant acted purposefully to set fire to or burn some
portion of a dwelling house, the intent element of § 1
still may be satisfied by proof that a reasonable person in
the defendant's position would have known that there was
a plain and strong likelihood that some portion of a dwelling
house would be set on fire or burned. See, e.g.,
Atkins, 25 Cal.4th at 89 (incendiary act must be
committed "under such circumstances that the direct,
natural, and highly probable consequences would be the
burning of the relevant structure"); Nowack,
462 Mich, at 408-409 (act done in "circumstances where a
plain and strong likelihood of [the burning of a dwelling
Sufficiency of the evidence.
case, we conclude that the evidence was overwhelming that the
defendant acted with general intent and malice for purposes
of arson under G. L. c. 266, § 1, when she set fire to a
bag of clothes located on the floor inside an apartment for
the purpose of exacting revenge against her boyfriend.
Because the defendant described her conduct and motivation to
more than one person immediately after she left the apartment
building, we can say for certain that the fire was not the
product of an accident or negligence. It was set
intentionally, without justification or excuse, and for an
unlawful or injurious purpose or motive. Moreover, a
reasonable person, under those circumstances, would have
known that there was a plain and strong likelihood that some
portion of the apartment building would be set on fire or
defendant's benefit, the jury were not instructed that
arson was a general intent crime. Instead, the trial judge
instructed that there were two alternative theories by which
the Commonwealth could prove that the defendant acted with
specific intent for purposes of satisfying the mens rea
requirement for arson under G. L. c. 266, § 1, which we
shall refer to as the specific intent theory and the failure
to extinguish or report theory.
defendant argues that, even viewed in the light most
favorable to the Commonwealth, see Commonwealth
v. Latimore, 378 Mass. 671, 676-677 (1979),
the evidence was insufficient to establish that she had the
specific intent to burn the apartment building, not just
Brewer's clothing. We disagree.
arson statute, by its plain terms, does not require extensive
damage to the dwelling house -- e.g., that it be
"consumed" or "destroyed" by fire. See
Commonwealth v. Tucker, 110 Mass.
403, 404 (1872). It requires proof only that some portion of
the dwelling house actually was on fire or burned.
Id. The mere charring of some portion of the
dwelling house is sufficient. See Commonwealth
v. Mcintosh, 10 Mass.App.Ct. 924, 925
(1980). Although specific intent requires proof that the
defendant intended her conduct and its consequences, it does
not require proof that the consequences she intended were as
extensive as those realized (i.e., that the apartment
building be consumed or destroyed by the fire). Rather,
specific intent requires only that the consequences she
intended are among those covered by the statute (i.e., that
some portion of the apartment building actually be set on
fire or burned) . See Gunter, 427 Mass. at 269
n.l2 ("in a specific intent crime, the defendant must
intend that the particular consequences constituting the
crime follow from his act or conduct"). See also Curtis,
supra at § 62, at 78-79 ("not necessary
that the burning effected correspond precisely with the
intent or design of the accused").
evidence, viewed in the light most favorable to the
Commonwealth, established that the defendant, in a fit of
anger, intentionally lit a piece of paper on fire and threw
it on a pile of Brewer's clothes that were located on the
floor inside the apartment. A reasonable jury could infer
from this evidence alone that the defendant was aware that
her actions would result in the burning of not only
Brewer's clothing, but also some portion of the apartment
building. See Dung Van Tran, 463 Mass. at 27 (where
defendant poured gasoline in such manner that it got not only
on himself but also on other people and on living room floor
of apartment, jury could reasonably infer he was aware when
he ignited it that he would do more than simply light himself
on fire); Commonwealth v.
Martinez, 393 Mass. 612, 613-615 (1985) (defendant
who lit newspaper on fire inside tenement building and threw
it at another occupant, thereby igniting fire, guilty of
arson); Commonwealth v. Roy, 2
Mass.App.Ct. 14, 16 (1974) (defendant who lit apartment
curtains on fire after fighting with roommate, resulting in
fire, guilty of arson).
setting the fire, the defendant left without attempting to
extinguish the fire or call for help. The evidence, when
viewed in the light most favorable to the Commonwealth,
further established that she locked the exterior door of the
building as she left, thereby making it more difficult for
anyone to escape or to enter and attempt to extinguish the
fire. Therefore, the jury reasonably could have inferred that
the defendant acted with the requisite specific intent at the
time she set the fire. See, e.g., Dung Van Tran, 463
Mass. at 27-28 (defendant's failure to attempt to put out
fire or to sound alarm was further proof of his intent to
burn apartment); Commonwealth v.
Cavedon, 301 Mass. 307, 314-315 (1938) (jury could
reasonably infer defendants intended to commit arson from
their failure to make any effort to extinguish fire or sound
are mindful that in arson cases the Commonwealth often can
prove guilt only by a web of circumstantial evidence that
entwines the suspect in guilt beyond a reasonable doubt"
(citation and quotation omitted). Choy v.
Commonwealth, 456 Mass. 146, 150, cert, denied, 562
U.S. 986 (2010). Here, that web was sufficiently woven.
Instruction on failure to extinguish or report fire.
trial, the defendant filed a motion for bill of particulars
to determine whether the Commonwealth's theory of
liability was based on her having set the fire, having failed
to extinguish or warn of the fire after she started it, or
both. At the subsequent hearing, the Commonwealth represented
that its theory was based on the setting of the fire, not the
failure to act after the fire was set. Based on that
representation, the motion judge, who was not the trial
judge, endorsed the motion as follows: "Upon hearing,
the Commonwealth representing that it will proceed on a
theory of 2nd degree felony murder, the underlying felony
being the crime of arson by intentionally setting fire to or
within an occupied dwelling, further particulars are not
trial, the Commonwealth largely abided by its prior
representation. During the trial, the Commonwealth filed a
proposed jury instruction on arson that focused on the
defendant's intent at the time the fire was set and made
no mention of failing to extinguish or report a fire. Later,
it filed a final set of requests proposing essentially the
same instruction. While arguing in opposition to the
defendant's motion for a required finding of not guilty,
the Commonwealth restated that the theory of liability was
that the defendant intentionally set the apartment building
on fire, and that any evidence that she failed to extinguish
or report the fire was relevant insofar as it reflected on
her intent at the time she set the fire.
However, during the charge conference, the trial judge,
without prompting from the Commonwealth, suggested she was
inclined based on the evidence to provide the jury with a
supplemental instruction that, in its final form, stated as
"If an act is accidental, it is not a crime; that is,
the requirement of willfulness means that accidentally or
negligently caused burnings are not arson. However a person
may have the required intent for arson if he or she
negligently or accidentally causes a fire and then
willfully and maliciously makes no attempt to extinguish it
or to report it. In that circumstance, the necessary
criminal state of mind for arson, willfulness and
maliciousness, may be formed after the fire
The Commonwealth agreed and requested that the supplemental
instruction be given. The defendant objected, arguing that
the Commonwealth had waived the right to seek such an
instruction, and that, in any event, there was insufficient
evidence to justify providing it. Although the Commonwealth
did not specifically argue in closing that the
defendant's failure to report or extinguish the fire
constituted arson, the judge provided the supplemental
instruction. For the first time, the defendant argues that
the supplemental instruction was improper because G. L. c.