involuntary manslaughter instruction in Massachusetts

2020See Commonwealth v. Pagan, 471 Mass. 537, 547 , cert. denied, 136 S. Ct. 548 (2015) (involuntary manslaughter instruction not warranted where defendant stabbed victim in abdomen with eight- inch blade); Commonwealth v. Pierce, 419 Mass. 28, 33 (1994) (involuntary manslaughter instruction not warranted where victim received multiple stab and slash wounds, each sufficient to cause death).

2019Because an involuntary manslaughter instruction was not reasonably supported by the evidence in light of the "plain and strong likelihood that death [would] follow" from the defendant's having pulled the tank top around her neck for several minutes, see Pierce, 419 Mass. at 33 , we discern no error in the judge's decision not to provide one.

2019Commonwealth v. Power-Koch , 69 Mass. App. Ct. 735 , 736-737, 871 N.E.2d 1085 (2007). "[W]here a defendant is charged with murder, an instruction on involuntary manslaughter is appropriate if any 'reasonable view of the evidence would [permit] the jury to find "wanton [or] reckless" conduct rather than actions from *1222 which a "plain and strong likelihood" of death would follow.' " Commonwealth v. Tavares , 471 Mass. 430 , 438, 30 N.E.3d 91 (2015), quoting Commonwealth v. Braley , 449 Mass. 316 , 331, 867 N.E.2d 743 (2007). **104 Here, an involuntary manslaughter instruction was not warrante

2019Commonwealth v. Power-Koch , 69 Mass. App. Ct. 735 , 736-737, 871 N.E.2d 1085 (2007). "[W]here a defendant is charged with murder, an instruction on involuntary manslaughter is appropriate if any 'reasonable view of the evidence would [permit] the jury to find "wanton [or] reckless" conduct rather than actions from *1222 which a "plain and strong likelihood" of death would follow.' " Commonwealth v. Tavares , 471 Mass. 430 , 438, 30 N.E.3d 91 (2015), quoting Commonwealth v. Braley , 449 Mass. 316 , 331, 867 N.E.2d 743 (2007). **104 Here, an involuntary manslaughter instruction was not warrante

2019Commonwealth v. Power-Koch , 69 Mass. App. Ct. 735 , 736-737, 871 N.E.2d 1085 (2007). "[W]here a defendant is charged with murder, an instruction on involuntary manslaughter is appropriate if any 'reasonable view of the evidence would [permit] the jury to find "wanton [or] reckless" conduct rather than actions from *1222 which a "plain and strong likelihood" of death would follow.' " Commonwealth v. Tavares , 471 Mass. 430 , 438, 30 N.E.3d 91 (2015), quoting Commonwealth v. Braley , 449 Mass. 316 , 331, 867 N.E.2d 743 (2007). **104 Here, an involuntary manslaughter instruction was not warrante

2019Commonwealth v. Power-Koch , 69 Mass. App. Ct. 735 , 736-737, 871 N.E.2d 1085 (2007). "[W]here a defendant is charged with murder, an instruction on involuntary manslaughter is appropriate if any 'reasonable view of the evidence would [permit] the jury to find "wanton [or] reckless" conduct rather than actions from *1222 which a "plain and strong likelihood" of death would follow.' " Commonwealth v. Tavares , 471 Mass. 430 , 438, 30 N.E.3d 91 (2015), quoting Commonwealth v. Braley , 449 Mass. 316 , 331, 867 N.E.2d 743 (2007). **104 Here, an involuntary manslaughter instruction was not warrante

2026"An involuntary manslaughter instruction is required where 'any view of the evidence will permit a finding of manslaughter and not murder.'" Commonwealth v. Tyler, 493 Mass. 752 , 760 (2024), quoting Commonwealth v. Jessup, 471 Mass. 121 , 135 18 (2015).

2026"An involuntary manslaughter instruction is required where 'any view of the evidence will permit a finding of manslaughter and not murder.'" Commonwealth v. Tyler, 493 Mass. 752 , 760 14 (2024), quoting Commonwealth v. Jessup, 471 Mass. 121, 135 (2015).

2024See Commonwealth v. Tyler, 493 Mass. 752 , 762 (2024); Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). 17 An involuntary manslaughter instruction is warranted if "any view of the evidence will permit a finding of [involuntary] manslaughter and not murder." Commonwealth v. Jessup, 471 Mass. 121, 135 (2015), quoting Commonwealth v. Sires, 413 Mass. 292, 301 (1992).10 Involuntary manslaughter arises "where wanton [or] reckless conduct causes death." Commonwealth v. Simpson, 434 Mass. 570, 590 (2001), citing Commonwealth v. Fryar, 425 Mass. 237, 248 , cert. denied, 522 U.S. 1033 (1997).

2015Notwithstanding the fact that the defendant did not pursue an involuntary manslaughter instruction at trial, on review, it is clear that the facts, when considered in the light most favorable to the defendant, see Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006), supported such an instruction. 10 An instmction on involuntary manslaughter also would have been consistent with the defendant’s trial strategy. 11 At the close of trial, the judge instmcted the jury on murder in the first and second degrees.

2015See Commonwealth v. Sanna, 424 Mass. 92, 105 (1997) (when obvious that risk of physical harm to victim created plain and strong likelihood that death will follow, instruction on involuntary manslaughter not required).19 Contrast Commonwealth v. Tavares, 471 Mass. 430, 438-439 (2015) (where defendant "simply pointed the gun at [the victim] and then backed away").

2015See Commonwealth v. Sanna, 424 Mass. 92, 105 (1997) (when obvious that risk of physical harm to victim created plain and strong likelihood that death will follow, instruction on involuntary manslaughter not required). 19 Contrast Commonwealth v. Tavares, 471 Mass. 430, 438-439 (2015) (where *548 defendant “simply pointed the gun at [the victim] and then backed away”).

2015There was an evidentiary basis for Dr. Kelly's opinion testimony. 15 The defendant requested an involuntary manslaughter instruction at trial on the basis that the defendant's conduct was reckless. 17 miscarriage of justice.16 See Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).

2015Because the defendant did not specifically request an involuntary manslaughter instruction on this basis at trial, 15 or object to the charge on the ground of its absence on this basis, we review whether there was error and, if so, whether it created a substantial risk of a miscarriage of justice. 16 See Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002).

2015Commonwealth v. Horne, 466 Mass. 440, 444 (2013).

2015Commonwealth v. Horne, 466 Mass. 440, 444 (2013).

2013An involuntary manslaughter instruction must be given if “any ‘reasonable view of the evidence would have permitted the jury to find “wanton and reckless” conduct rather than actions from which a “plain and strong likelihood” of death would follow.’ ” Commonwealth v. Braley, 449 Mass. 316, 331 (2007), quoting Commonwealth v. Jenks, 426 Mass. 582, 585 (1998).

2007In determining whether an involuntary manslaughter instruction must be given, we ask whether any “reasonable view of the evidence would have permitted the jury to find ‘wanton and reckless’ conduct rather than actions from which a ‘plain and strong likelihood’ of death would follow.” Commonwealth v. Jenks, 426 Mass. 582, 585 (1998).

2025"An involuntary manslaughter instruction is required if the evidence warrants a jury in finding the defendant guilty of that offense." Commonwealth v. Pagan, 471 Mass. 537, 546 , cert. denied, 577 U.S. 1013 (2015).

2025Id. at 547 (involuntary manslaughter instruction not warranted where the defendant stabbed the victim with an eight-inch blade, posing an "obvious 9 risk of harm consistent with second or third prong malice"). 4 Therefore, trial counsel's failure to request an involuntary manslaughter instruction was not "manifestly unreasonable." Adams, 374 Mass. at 728 . b.

2026See, e.g., Commonwealth v. Nichypor, 419 Mass. 209, 217 (1994) ("The risk of harm associated with stabbing a person in the head with knives and slashing a person's throat with a razor blade is the kind of risk that could only lead to a determination of malice"). 20In O'Brien, 494 Mass. at 296-297, one of the defendant's coventurers raised an ineffective assistance of counsel claim predicated on his counsel's decision to withdraw a request for an involuntary manslaughter instruction.

1998An involuntary manslaughter instruction is warranted if death was “the unintentional result of an act committed with such disregard of its probable harm to another as to amount to wanton or reckless conduct.” 28 Commonwealth v. Nichypor, 419 Mass. 209, 217 (1994).

2026The defendant contends that, unlike his coventurer, he was entitled to an involuntary manslaughter instruction because, as 22Murder in the first degree by joint venture requires proof that "the defendant was present at the scene of the crime, with knowledge that another intended to commit a crime, and by agreement was willing and available to help the other if necessary," and "that the defendant shared with the principal the mental state required for the crime of murder." Commonwealth v. Semedo, 422 Mass. 716, 719 (1996). 23 the mastermind of the robbery scheme, the jury could find that he was

2024Nonetheless, an involuntary manslaughter instruction is unsupported in view of the evidence showing his participation in 12Unlike the defense that trial counsel pursued at trial -- namely, that the defendant was not the third coventurer with Moscaritolo and Ferguson -- an involuntary manslaughter defense would require the jury to conclude that the defendant was the third coventurer. 21 the murder as a joint venturer.13 The evidence, which included three sets of coventurers' shoe prints alongside the impressions of the victim's bare feet throughout the victim's home, fails to support a theory t

2026Cf. Commonwealth v. Garcia, 470 Mass. 24, 32-33 (2014) (defendants acted with malice by locking victim in room to bleed out after beating and shooting him).

2024Cf. Commonwealth v. Garcia, 470 Mass. 24, 32-33 (2014) (defendants acted with malice by locking victim in room to bleed out after beating and shooting him). 22 home and was not the third coventurer -- was not manifestly unreasonable.

2025In requesting an involuntary manslaughter instruction, the defendant argued that "it may be willful, wanton or reckless conduct" on the part of the shooter "to fire . . . toward a crowd of people or toward one or two people." Id. at 7 .

2025Id. at 7, 9 .

2024Id. at 354 . 18 intent, and should have convicted him of involuntary manslaughter instead." Id. at 353-354 .8 Similarly, in Commonwealth v. Campbell, 352 Mass. 387 , 397- 398 (1967), we concluded that an involuntary manslaughter instruction was warranted where the jury could have found that the defendant's conduct was "consistent with a failure to regard the consequences of his action or an indifference to what the consequences of his action might have been, thus rising to wanton or reckless conduct." The defendant in Campbell was convicted of felony-murder in the first degree based on the pre

2024Id. 19 Both Donovan, 422 Mass. at 353 , and Campbell, 352 Mass. at 398 , demonstrate that, in a felony-murder case, where any view of the evidence casts doubt on the defendant's intent to commit the predicate felony, an involuntary manslaughter instruction must be given.

2024See Commonwealth v. Pina, 481 Mass. 413, 417-418 (2019).

2023See Commonwealth v. Pina, 481 Mass. 413, 422 (2019).

2016See, e.g., Commonwealth v. Ferrara, 368 Mass. 182, 190 (1975) (inference of involuntary manslaughter was warranted where witness testified that he did not think defendants were aiming rifle at victim); Commonwealth v. Greaves, 27 Mass. App. Ct. 590, 594 (1989) (upholding reduction of jury verdict to manslaughter where judge believed “the evidence that the defendant was a considerable distance away from the building when he shot the rifle and that he was aiming at the roof’).

2006Nor is this a case, like Commonwealth v. Ferrara, 368 Mass. 182, 190 (1975), where the witness whose testimony formed the basis for the request for an involuntary manslaughter instruction testified that the shooters were not “aiming” at the victim.

2015See Commonwealth v. Tague, 434 Mass. 510, 518-519 (2001), cert. denied, 534 U.S. 1146 (2002); Commonwealth v. Dunton, 397 Mass. 101, 103 (1986); Commonwealth v. Golston, 373 Mass. *670 249, 260 (1977), cert. denied, 434 U.S. 1039 (1978).

2005He also argues that the judge erred by not issuing such an instruction sua sponte. 14 Involuntary manslaughter is “an unintentional killing resulting from ‘wanton and reckless conduct. . . [or] ... a battery not amounting to a felony which the defendant knew or should have known endangered human life.’ ” Commonwealth v. Tague, 434 Mass. 510, 518 (2001), quoting Commonwealth v. Pierce, 419 Mass. 28, 33 (1994).

2010See Commonwealth v. Mendes, 441 Mass. 459, 475-476 (2004) (risk created by “prolonged and forceful strangulation . . . constitutes a plain and strong likelihood of death”); Commonwealth v. Fitzmeyer, 414 Mass. 540, 547-548 (1993) (involuntary manslaughter instruction not warranted when evidence indicated defendant choked victim to death); Commonwealth v. Garabedian, 399 Mass. 304, 315-316 (1987) (involuntary manslaughter instruction not warranted when defendant twice strangled victim and then threw three large rocks at victim’s face).

1994See Commonwealth v. Parker, 402 Mass. 333, 344-345 (1988) (allegation of two blows struck by seventy-nine year old handicapped victim insufficient); Commonwealth v. Garabedian, 399 Mass. 304, 313-314 (1987) (scratches to face of male attacker by woman victim); Commonwealth v. Brown, 387 Mass. 220, 227 (1982) (evidence that victim choked husband with shirt insufficient, especially considering husband stabbed wife twenty-seven times); Commonwealth v. Walden, 380 Mass. 724, 726 (1980) (several blows by octogenarian victim and scratches from second victim insufficient to provoke stabbing and stran

2010See Commonwealth v. Mendes, 441 Mass. 459, 475-476 (2004) (risk created by “prolonged and forceful strangulation . . . constitutes a plain and strong likelihood of death”); Commonwealth v. Fitzmeyer, 414 Mass. 540, 547-548 (1993) (involuntary manslaughter instruction not warranted when evidence indicated defendant choked victim to death); Commonwealth v. Garabedian, 399 Mass. 304, 315-316 (1987) (involuntary manslaughter instruction not warranted when defendant twice strangled victim and then threw three large rocks at victim’s face).

1998But “[a]n involuntary manslaughter charge is not required when it is obvious that ‘the risk of physical harm to the victim creates a “plain and strong likelihood that death would follow.” ’ ” Commonwealth v. Brooks, supra at 578 , quoting Commonwealth v. Fitzmeyer, 414 Mass. 540, 547 (1993). 29 The victim was shot twice, once through the heart, and once in the back while he was kneeling down and bent over.

2024See Commonwealth v. Tyler, 493 Mass. 752 , 762 (2024); Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). 17 An involuntary manslaughter instruction is warranted if "any view of the evidence will permit a finding of [involuntary] manslaughter and not murder." Commonwealth v. Jessup, 471 Mass. 121, 135 (2015), quoting Commonwealth v. Sires, 413 Mass. 292, 301 (1992).10 Involuntary manslaughter arises "where wanton [or] reckless conduct causes death." Commonwealth v. Simpson, 434 Mass. 570, 590 (2001), citing Commonwealth v. Fryar, 425 Mass. 237, 248 , cert. denied, 522 U.S. 1033 (1997).

1996The evidence, taken most favorably to the defendant, did not support an involuntary manslaughter instruction for the same reasons discussed in Commonwealth v. Sires, supra. After firing a warning shot into the air, the defendant chased the victim down the street, firing several times, all in the direction of the victim.

2024Such wanton or reckless conduct is "intentional conduct that create[s] a high degree of likelihood that substantial harm will result to another person." Commonwealth v. Pagan, 471 Mass. 537, 547 , cert. denied, 577 10Prior to our decision in Brown, in which we abrogated the felony-murder rule as an independent theory of liability for murder in the first degree, we maintained that "[w]here the felony-murder rule applies, generally the defendant is not entitled to an instruction on manslaughter." Commonwealth v. Evans, 390 Mass. 144, 151 (1983).

1997Id. at 150 .

2015There was an evidentiary basis for Dr. Kelly’s opinion testimony. 15 The defendant requested an involuntary manslaughter instruction at trial on the basis that the defendant’s conduct was reckless. 16 We use the substantial risk of a miscarriage of justice standard because we affirm the defendant’s conviction of murder in the second degree, not murder in the first degree. 17 “A verdict of involuntary manslaughter is possible only where the defendant caused an unintentional death (1) during the commission of an act amounting to wanton or reckless conduct, or (2) during the commission of a batte

1998But “[a]n involuntary manslaughter charge is not required when it is obvious that ‘the risk of physical harm to the victim creates a “plain and strong likelihood that death would follow.” ’ ” Commonwealth v. Brooks, supra at 578 , quoting Commonwealth v. Fitzmeyer, 414 Mass. 540, 547 (1993). 29 The victim was shot twice, once through the heart, and once in the back while he was kneeling down and bent over.

1994Commonwealth v. Walden, supra at 726-727 , and cases cited.

1994See Commonwealth v. Parker, 402 Mass. 333, 344-345 (1988) (allegation of two blows struck by seventy-nine year old handicapped victim insufficient); Commonwealth v. Garabedian, 399 Mass. 304, 313-314 (1987) (scratches to face of male attacker by woman victim); Commonwealth v. Brown, 387 Mass. 220, 227 (1982) (evidence that victim choked husband with shirt insufficient, especially considering husband stabbed wife twenty-seven times); Commonwealth v. Walden, 380 Mass. 724, 726 (1980) (several blows by octogenarian victim and scratches from second victim insufficient to provoke stabbing and stran

2026"In other words, [an involuntary manslaughter instruction is not warranted where] the 'circumstances of the killing and injuries sustained by the victim' may be '[in]consistent with anything other than [a finding of] malice.'" O'Brien, supra at 298-299, quoting Commonwealth v. Silva, 471 Mass. 610, 621-622 (2015) (involuntary manslaughter instruction not warranted where defendant and coventurer severely beat victim, knocked him down, kicked him, and stomped on his chest causing victim's eyes to "bug out"). 21 In the case of one of the defendant's coventurers, we summarized the evidence as foll

2025Id. (where "the primary defense was misidentification," an alternative theory of manslaughter was not warranted), quoting Commonwealth v. Donlan, 436 Mass. 329, 333-334 (2002).

2025See Commonwealth v. Barbosa, 463 Mass. 116, 135 (2012).

2025Id. (where "the primary defense was misidentification," an alternative theory of manslaughter was not warranted), quoting Commonwealth v. Donlan, 436 Mass. 329, 333-334 (2002).

2024Id. at 354 . 18 intent, and should have convicted him of involuntary manslaughter instead." Id. at 353-354 .8 Similarly, in Commonwealth v. Campbell, 352 Mass. 387 , 397- 398 (1967), we concluded that an involuntary manslaughter instruction was warranted where the jury could have found that the defendant's conduct was "consistent with a failure to regard the consequences of his action or an indifference to what the consequences of his action might have been, thus rising to wanton or reckless conduct." The defendant in Campbell was convicted of felony-murder in the first degree based on the pre

2024Id. at 354 . 18 intent, and should have convicted him of involuntary manslaughter instead." Id. at 353-354 .8 Similarly, in Commonwealth v. Campbell, 352 Mass. 387 , 397- 398 (1967), we concluded that an involuntary manslaughter instruction was warranted where the jury could have found that the defendant's conduct was "consistent with a failure to regard the consequences of his action or an indifference to what the consequences of his action might have been, thus rising to wanton or reckless conduct." The defendant in Campbell was convicted of felony-murder in the first degree based on the pre