third prong malice instruction in Massachusetts

2018In so doing, the court made it clear that including "or grievous bodily harm" in a third prong malice instruction "improperly permitted the jurors to infer malice on proof that the defendant committed an act that he knew (or should have known) would result in grievous bodily harm," when what is required instead is "a plain and strong likelihood of death." Vizcarrondo , 427 Mass. at 395 .

2002Three years later, in 1999, the defendant filed a motion for a new trial raising three claims: (1) that the third prong malice instruction, which included reference to “grievous bodily harm” was error, as determined in Commonwealth v. Vizcarrondo, 427 Mass. 392, 395 (1998); (2) that the self-defense instruction was improperly limited to a deadly force description and omitted language that self-defense may also be effected by nondeadly force; and (3) that the supplemental instruction on joint venture, in effect, compelled the conviction of Frank for the same crime as Dion, and thereby deprived

2002See Commonwealth v. Wil liams, 428 Mass. 383 (1998); Commonwealth v. Vizcarrondo, supra; Commonwealth v. Pichardo, 45 Mass. App. Ct. 296 (1998); Commonwealth v. DiRenzo, 44 Mass. App. Ct. 95 (1997). [This is in contrast to] other cases [where] it has not been necessary to order new trials because the evidence in the cases did not warrant a finding of a risk of harm less than a plain and strong likelihood of death.” Ibid.

1999Yet, “where the defendant’s attack is inherently deadly, the lowering of the third prong malice standard to include grievous bodily harm may be nonprejudicial.” Commonwealth v. Williams, supra at 387 .

1999Compare Commonwealth v. Murphy, 426 Mass. 395, 401 (1998) (conviction upheld because act could not have created less than strong likelihood of death); Commonwealth v. Fry or, 425 Mass. 237, 248 , cert. denied, 522 U.S. 1033 (1997) (same); Commonwealth v. Mello, supra at 390 (same), with Commonwealth v. Williams, supra at 387 (conviction reversed because act could have warranted a finding of less than strong likelihood of death); Commonwealth v. Vizcarrondo, supra at 397-398 (same).

1998See Commonwealth v. Vizcar-rondo, 427 Mass. 392, 397-398 (1998); Commonwealth v. Mello, 420 Mass. 375, 390 (1995) (defendant had set fire to an apartment building in the middle of the night, which, under the circumstances known to the defendant, caused a plain and strong likelihood of death).

2018See Azar , 435 Mass. at 682 .

2005See Commonwealth v. Simpson, 434 Mass. 570 , 587 & n.12 (2001), and cases cited. (iii) The judge’s instructions on the elements of involuntary manslaughter and on accident contain no error. (iv) The judge’s instructions on the effect of intoxication on the defendant’s culpability were correct and suitable to the only theory of murder that was tried before, and decided by, the jury. 5.

2002Further, the error in the third prong malice instruction could have been compounded by the instruction, given twice, that permitted the jurors to infer malice from the intentional use of a dangerous weapon, without more, defining dangerous weapon as “any instrument which, by its construction or its use, is capable of causing death or grievous bodily injury, or one which could be perceived by a reasonable person as being so capable.” 5 Compare Commonwealth v. Farrell, 322 Mass. 606, 614-615 (1948) (defining dangerous weapon for purposes of assault and battery as “any instrument or instrumentali

1999Compare Commonwealth v. Murphy, 426 Mass. 395, 401 (1998) (conviction upheld because act could not have created less than strong likelihood of death); Commonwealth v. Fry or, 425 Mass. 237, 248 , cert. denied, 522 U.S. 1033 (1997) (same); Commonwealth v. Mello, supra at 390 (same), with Commonwealth v. Williams, supra at 387 (conviction reversed because act could have warranted a finding of less than strong likelihood of death); Commonwealth v. Vizcarrondo, supra at 397-398 (same).

1998She said that the third prong of malice consisted of “an intent to do an act that plainly and strongly will cause death or grievous bodily harm.” A proper third prong malice instruction would not have included the term “grievous bodily harm.” Commonwealth v. Fuller, 421 Mass. 400, 412 (1995).

1997Similarly, the judge’s use of “frame of mind” language in defining malice, language which we have disapproved since the defendant’s trial (see Commonwealth v. Johnson, 422 Mass. 420, 428 [1996], and cases cited), could not have created a substantial likelihood of a miscarriage of justice. 6.

1995See Commonwealth v. Judge, supra at 444 (“ ‘ “Where a crime can be committed in any one of several ways . . . [t]hen the defendant should be convicted if it is proved that he committed the crime in any of those ways.” Commonwealth v. Chipman, 418 Mass. 262 , 270 n.5 (1994), quoting Commonwealth v. Dowe, 315 Mass. 217, 219-220 (1943).’ Commonwealth v. Nichypor, supra at 212”). 7 Given the plethora of confirming evidence, the defense’s own contentions that Fuller’s anger was brooding, smoldering, and longstanding, and the focus of the case on Fuller’s lack of responsibility by reason of dysthymi

1995See Commonwealth v. Judge, supra at 444 (“ ‘ “Where a crime can be committed in any one of several ways . . . [t]hen the defendant should be convicted if it is proved that he committed the crime in any of those ways.” Commonwealth v. Chipman, 418 Mass. 262 , 270 n.5 (1994), quoting Commonwealth v. Dowe, 315 Mass. 217, 219-220 (1943).’ Commonwealth v. Nichypor, supra at 212”). 7 Given the plethora of confirming evidence, the defense’s own contentions that Fuller’s anger was brooding, smoldering, and longstanding, and the focus of the case on Fuller’s lack of responsibility by reason of dysthymi

1995See Commonwealth v. Judge, supra at 444 (“ ‘ “Where a crime can be committed in any one of several ways . . . [t]hen the defendant should be convicted if it is proved that he committed the crime in any of those ways.” Commonwealth v. Chipman, 418 Mass. 262 , 270 n.5 (1994), quoting Commonwealth v. Dowe, 315 Mass. 217, 219-220 (1943).’ Commonwealth v. Nichypor, supra at 212”). 7 Given the plethora of confirming evidence, the defense’s own contentions that Fuller’s anger was brooding, smoldering, and longstanding, and the focus of the case on Fuller’s lack of responsibility by reason of dysthymi