Commonwealth v. Boucher (Lawyers Weekly No. 10-041-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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 (2014) (Duffly, J., concurring), andCommonwealth v. Berry, 466 Mass. 763, 777-778 (2014)(Gants, J., concurring). We decline the invitation to adopt a new formulation of extreme atrocity or […]