NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-13355
COMMONWEALTH vs. MELISSA PFEIFFER.
Suffolk. March 6, 2023. - July 17, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Wendlandt, & Georges, JJ.
Homicide. Felony-Murder Rule. Burning a Dwelling House. Fire Fighter. Practice, Criminal, Postconviction relief, Sentence, Judicial discretion, State of mind, Verdict, Instructions to jury, Retroactivity of judicial holding. Estoppel. Evidence, Expert opinion, State of mind, Intent. Mental Impairment. Intent. Retroactivity of Judicial Holding.
Indictments found and returned in the Superior Court Department on March 8, 2011.
Following review by this court, 482 Mass. 110 (2019), a motion for postconviction relief was heard by Janet L. Sanders, J.
The Supreme Judicial Court granted an application for direct appellate review.
Ian MacLean, Assistant District Attorney, for the Commonwealth. Patrick Levin, Committee for Public Counsel Services, for the defendant. 2
Merritt Schnipper, Radha Natarajan, Stephanie Hartung, Katharine Naples-Mitchell, & Audrey Murillo, for New England Innocence Project & others, amici curiae, submitted a brief. David J. Nathanson & Eva G. Jellison, for Daniel Rogers, amicus curiae, submitted a brief.
GAZIANO, J. At issue in this appeal is whether the trial
judge abused her discretion by reducing the defendant's verdict
pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass.
1502 (1995). The defendant was convicted of murder in the
second degree on a theory of felony-murder, with arson as the
predicate felony. We affirmed the defendant's conviction on
direct review, as there was sufficient evidence to support the
jury's verdict. See Commonwealth v. Pfeiffer, 482 Mass. 110,
122, cert. denied, 140 S. Ct. 498 (2019). Following this, the
trial judge reduced the verdict to involuntary manslaughter in
response to the defendant's rule 25 (b) (2) motion. With the
verdict reduced, the judge resentenced the defendant to from
eight to ten years' incarceration, which, given time served,
resulted in the defendant being eligible for release. The
Commonwealth appealed from the verdict reduction on the ground
that the judge abused her discretion.
Under rule 25 (b) (2), a judge may reduce a verdict on the
basis that it is "against the weight of the evidence, or not
consonant with justice." See Commonwealth v. Arias, 488 Mass.
1004, 1007 (2021). A judge may exercise this discretionary 3
authority even where the evidence is sufficient to support the
jury's verdict. However, because rule 25 (b) (2) allows a judge
to undo the work of the jury, this power is to be used
sparingly. A judge may not reduce a verdict if the evidence
does not point to a lesser offense.
Here, the judge reduced the defendant's conviction because,
among other reasons, the weight of the evidence suggested that
the defendant had not had the requisite intent when she set the
fire that formed the basis for the arson conviction. The judge
also took into account mitigating circumstances constituted by
the defendant's severe cognitive limitations and mental
disorder. We conclude that the judge did not abuse her
discretion by reducing the jury's verdict. Accordingly, we
affirm the judge's order reducing the defendant's conviction of
murder in the second degree to involuntary manslaughter.1
1. Background. On December 24, 2010, the defendant was
living on the first floor of a two-unit apartment building with
her boyfriend and their two year old son. At around 9 P.M.,
after dropping off their son with a relative, the defendant
returned to the apartment, where an argument ensued with her
boyfriend, who then left for a nearby bar. About an hour later,
1 We acknowledge the amicus briefs submitted by the New England Innocence Project, the Criminal Justice Institute at Harvard Law School, and the Massachusetts Association of Criminal Defense Lawyers; and by Daniel Rogers. 4
while her boyfriend was gone, the defendant set afire a piece of
paper and tossed it onto a duffel bag of clothing that was on
the floor in a corner of the apartment. The defendant then left
the building, the exterior door of the building locking behind
her. Her boyfriend returned to find the defendant outside the
building, at which point she told him that his clothes were on
fire. The defendant remained on the scene arguing with her
boyfriend as flames became visible through the apartment
windows. The defendant did not call for help or alert other
occupants. The blaze quickly engulfed the building, killing one
second-floor occupant and severely injuring another. Two
firefighters also were injured.
The defendant was charged with arson of a dwelling house,
G. L. c. 266, § 1; murder in the second degree, G. L. c. 265,
§ 1; assault and battery by means of a dangerous weapon, G. L.
c. 265, § 15A; and two counts of injuring a firefighter, G. L.
c. 265, § 13D 1/2.
At trial, which commenced in 2016, the defendant argued
that there was insufficient evidence that she intended to burn
the building when she lit her boyfriend's clothing on fire. The
defense emphasized the defendant's cognitive limitations, as
well as her mental disorder. The defense called as a witness
Dr. Frank DiCataldo, who testified that when the defendant was a
child, she was abused sexually and physically by her biological 5
parents, placed in a series of foster homes, and admitted to
several hospitals for psychiatric treatment. He further
testified that the defendant's history supported a diagnosis of
posttraumatic stress disorder (PTSD).
DiCataldo also testified about the defendant's cognitive
abilities. Based on testing he had conducted, DiCataldo
determined that the defendant had extremely limited intellectual
functioning and that she possessed an over-all intelligence
quotient of seventy-one, which placed her in the third
percentile of adults. DiCataldo testified that the defendant's
perceptual reasoning abilities were extremely weak, such that
"it [took] her a long time to process information." He
concluded that, although the defendant's deficits did not mean
that she was not criminally responsible, she nonetheless was
impaired in her ability to understand fully the consequences
that could flow from her actions, including when she set afire
her boyfriend's clothing.
DiCataldo wrote a report on his examination of the
defendant, which was not presented to the jury, that provided
greater detail on the defendant's history of abuse and neglect.
The report stated that the defendant's mental disorder "likely
constituted a significant mental impairment that substantially
compromised her ability to formulate the requisite intention to
act with deliberation and forethought regarding the reasonable 6
likely outcome of her actions." The report also stated that, at
the time of the offense, the defendant was substantially
impaired in "her ability to contemplate the consequences of her
actions and control her behavior."
Prior to trial, the defendant filed notice with the court
of her intent to introduce evidence of her mental condition.
See Mass. R. Crim. P. 14 (b) (2) (A), as appearing in 463 Mass.
1501 (2012). In response, the Commonwealth filed a motion to
require the defendant to submit to an examination by an
independent evaluator. See Mass. R. Crim. P. 14 (b) (2) (B).
The motion was allowed, and the Commonwealth filed notice that
the chosen evaluator would be Dr. Alison Fife.
Fife wrote a report on the defendant, which was filed with
the court. See Mass. R. Crim. P. 14 (b) (2) (B) (iii). In the
report, Fife concluded that the defendant's "capacities to
conform her behavior to the requirements of the law [on the
night of the incident], specifically to maintain behavioral
control, were impaired by her cognitive limitations and PTSD as
evidenced by her concrete thinking and poor analytical skills,
impaired ability to weigh the consequences of her emotions and
resultant behaviors before acting on them[,] and poor impulse
control and coping skills." Fife's report was viewed by defense
counsel, who then provided a copy of the report with redactions 7
to the Commonwealth. Fife did not testify at trial, and her
report was not presented to the jury.
During trial, the Commonwealth requested jury instructions
that characterized arson as a crime of specific intent. Under
the proposed instructions, to convict the defendant of arson the
jury would have to find beyond a reasonable doubt that the
defendant "acted with the specific intent to willfully and
maliciously set fire to or cause to be burned a dwelling." The
judge granted the Commonwealth's request and instructed the jury
that a person commits arson only "if she intends both her
conduct, for example, lighting a paper, and the resulting harm,
the burning of the building or some part of it." This language
reflected the model jury instructions on arson at the time of
the defendant's trial. See Massachusetts Superior Court
Criminal Practice Jury Instructions, Crimes Against Property and
Other Crimes § 4.3.1 (Mass. Cont. Legal Educ. 2d ed. 2013).
The judge instructed the jury that they could convict the
defendant of murder in the second degree under either a theory
of felony-murder or a theory of unlawful killing with malice.
The judge also instructed the jury on the lesser included
offense of involuntary manslaughter.
The defendant was convicted of murder in the second degree
on a theory of felony-murder with arson as the predicate felony,
as well as two counts of injuring a firefighter. She was 8
sentenced to a mandatory term of life in prison on the murder
charge, with concurrent sentences of from three to five years on
the other two counts. The jury did not reach unanimous
agreement on the theory that the defendant had committed an
unlawful killing with malice.
The defendant appealed from those verdicts, and this court
affirmed them. See Pfeiffer, 482 Mass. at 112. We concluded,
however, that the judge had erred in instructing the jury that
an arson conviction requires specific intent to burn a dwelling.
See id. at 120. We held, rather, that arson is a crime of
general intent. See id. at 120-121.2
The defendant filed a motion for a new trial or, in the
alternative, for a reduction in the verdict, pursuant to rule
25 (b) (2) and Mass. R. Crim. P. 30 (b), as appearing in 435
Mass. 1501 (2001). In 2021, the trial judge held a
nonevidentiary hearing on that motion. The judge denied so much
of the motion as requested a new trial, but she concluded that
the defendant had met her burden of showing that justice was not
done and accordingly reduced the jury's verdict of murder in the
second degree to involuntary manslaughter. The judge based her
conclusion on four factors: the weakness of the evidence
2 We affirmed the conviction despite the erroneous instruction because the error was "[t]o the defendant's benefit." See Commonwealth v. Pfeiffer, 482 Mass. 110, 121, cert. denied, 140 S. Ct. 498 (2019). 9
supporting the defendant's intent to burn a dwelling; the
mitigating circumstances constituted by the defendant's personal
characteristics; an erroneous supplemental instruction she had
provided the jury during trial;3 and this court's decision in
Commonwealth v. Brown, 477 Mass. 805, 825 (2017) (Gants, C.J.,
concurring), cert. denied, 139 S. Ct. 54 (2018), issued eighteen
months after the defendant's trial, establishing that felony-
murder cannot be an independent theory of liability for murder.
The judge, in her memorandum of decision and order, relied on
the reports written by DiCataldo and Fife.
The Commonwealth appealed, and the defendant filed a cross
appeal. We granted the defendant's request for direct appellate
review.
2. Discussion. The Commonwealth argues that the judge
abused her discretion and committed clear error of law when she
3 The judge had instructed the jury that, with regard to the intent required to prove arson, the Commonwealth could satisfy its burden of proof by showing that the defendant, having accidentally or negligently caused the fire, then willfully and maliciously had failed either to extinguish or to report it. This reflected the model jury instructions on arson at the time of the defendant's trial. See Massachusetts Superior Court Criminal Practice Jury Instructions, Crimes Against Property and Other Crimes § 4.3.3 (Mass. Cont. Legal Educ. 2d ed. 2013). We held that this instruction was erroneous because "accidentally or negligently set fires cannot form the basis for arson under G. L. c. 266, § 1." Pfeiffer, 482 Mass. at 125. We further held that the error did not require a new trial, because it did not create a substantial risk of a miscarriage of justice. See id. at 128-129. 10
reduced the defendant's conviction. In particular, the
Commonwealth contends that the judge was directly estopped from
analyzing the weight of the evidence; the judge erred in
considering evidence that was not presented at trial; the judge
applied an incorrect legal standard to her analysis of the
evidence; and the judge erred by considering our holding in
Brown, 477 Mass. at 825 (Gants, C.J., concurring).4
a. Rule 25 (b) (2). Rule 25 (b) (2) "provides trial
judges with the flexibility to fashion appropriate relief after
a verdict has been returned" if justice so requires. See
Commonwealth v. Gilbert, 447 Mass. 161, 167 (2006). In
particular, rule 25 (b) (2) empowers a judge to reduce a verdict
to a lesser included charge, "despite the presence of sufficient
evidence to support the jury's verdict." See Commonwealth v.
Pagan, 471 Mass. 537, 542, cert. denied, 577 U.S. 1013 (2015),
quoting Commonwealth v. Sokphann Chhim, 447 Mass. 370, 381
(2006). See also Commonwealth v. Sanchez, 485 Mass. 491, 504
(2020). A judge appropriately exercises this power "where the
weight of the evidence in the case . . . points to a lesser
crime." Commonwealth v. Rolon, 438 Mass. 808, 821 (2003).
Under rule 25 (b) (2) review, the judge "may review all the
4 The defendant argues that the judge erred in denying her motion for a new trial, but she waives her cross appeal in the event that this court affirms the verdict reduction. 11
evidence, including the defendant's version of the facts," even
if this requires the judge to substitute her "view of the
evidence for that of the jury." Commonwealth v. Woodward, 427
Mass. 659, 668-669 (1998). Generally, a "trial judge's decision
on a rule 25 (b) (2) motion 'should be guided by the same
considerations'" as those that drive G. L. c. 278, § 33E,
review. See Rolon, supra at 820, quoting Commonwealth v.
Gaulden, 383 Mass. 543, 555 (1981).
Because rule 25 (b) (2) vests in a judge the power to undo
the work of the jury, this postconviction authority "should be
exercised only sparingly."5 See Commonwealth v. Grassie, 482
Mass. 1017, 1018 (2019). The judge "is not to sit as a 'second
jury.'" Sokphann Chhim, 447 Mass. at 381, quoting Commonwealth
v. Keough, 385 Mass. 314, 321 (1982). See Woodward, 427 Mass.
at 672, quoting Williams v. Florida, 399 U.S. 78, 87 (1970)
("The importance that our system attaches to trial by jury
derives from the special confidence we repose in a body of one's
peers to determine guilt or innocence as a safeguard against
arbitrary law enforcement" [quotation omitted]). Nonetheless, a
judge should reduce a verdict where the result would be more
"consonant with justice." Rolon, 438 Mass. at 820, quoting
Woodward, supra at 666.
5 Here, for example, this was the first case in the judge's twenty-seven year career in which she reduced a verdict. 12
In reviewing a judge's order to reduce a verdict, "[o]ur
role is not to decide whether we would have acted as the trial
judge did." Sokphann Chhim, 447 Mass. at 381. "We defer to the
trial judge because [she] has the advantage of face to face
evaluation of the witnesses and the evidence at trial. [She] is
in a far better position than we are to make the judgment
required by the rule." Commonwealth v. Reavis, 465 Mass. 875,
891 (2013), quoting Woodward, 427 Mass. at 668. Accordingly, we
will reverse a verdict reduction only if "the judge abused his
[or her] discretion or committed an error of law." Rolon, 438
Mass. at 821. "[A] judge's discretionary decision constitutes
an abuse of discretion where we conclude the judge made a clear
error of judgment in weighing the factors relevant to the
decision . . . such that the decision falls outside the range of
reasonable alternatives" (quotation and citation omitted). L.L.
v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
In Commonwealth v. Lyons, 444 Mass. 289, 290 (2005), for
example, the defendant was convicted of murder in the second
degree for the shaking death of his two week old son. The trial
judge reduced the defendant's conviction to involuntary
manslaughter, which, unlike murder in the second degree, does
not require a finding of malice. See id. at 290, 293. Among
the judge's reasons for reducing the verdict were the absence of
evidence of prior abuse by the defendant, that the defendant's 13
crime was a "momentary act of 'extraordinarily poor judgment,'"
and the defendant's history of being "a steady worker with no
prior criminal record." See id. at 292-293. We held that the
judge's decision was an abuse of discretion because none of the
aforementioned factors indicated an absence of malice. See id.
at 293-297. See also Pagan, 471 Mass. at 544 ("personal
circumstances alone cannot warrant a reduction of the verdict").
b. Direct estoppel. The Commonwealth contends that,
because this court previously assessed the evidence against the
defendant in its decision in Pfeiffer, 482 Mass. at 121, the
judge was directly estopped from analyzing the weight of the
evidence.
Under the principle of direct estoppel, a judge is
precluded from reviewing an issue that previously was "litigated
and determined," if "such determination was essential to
the . . . conviction, and . . . the defendant had an opportunity
to obtain review of the determination." See Arias, 488 Mass.
at 1006, quoting Commonwealth v. Watkins (No. 1), 486 Mass. 801,
806 (2021). Accordingly, a judge may not reduce a verdict
pursuant to a rule 25 (b) (2) motion "solely based on the
assertion that the direct appeal was decided wrongly"
(quotation, citation, and alterations omitted). See Sanchez,
485 Mass. at 498. 14
To establish that direct estoppel applies, "the
Commonwealth must show that the issue[] raised in the [rule
25 (b) (2) motion] [was] actually litigated and determined" in
the original proceeding. Commonwealth v. Ellis, 475 Mass. 459,
475 (2016), quoting Commonwealth v. Rodriguez, 443 Mass. 707,
710 (2005). If one proceeding "involves application of a
different legal standard" from that applied in another
proceeding, then the two proceedings cannot be said to have
addressed the same issue. See B&B Hardware, Inc. v. Hargis
Indus., 575 U.S. 138, 154 (2015).
Here, the judge reduced the jury's verdict because the
weight of the evidence suggested that the verdict was not
consonant with justice. See Rolon, 438 Mass. at 820. This
court, in contrast, held that there was sufficient evidence to
support a reasonable inference that "the defendant acted with
the requisite specific intent [to burn a dwelling] at the time
she set the fire." See Pfeiffer, 482 Mass. at 123. Whether a
verdict is consonant with justice is a matter distinct from
whether there was sufficient evidence to support the verdict.
See Pagan, 471 Mass. at 542, citing Sokphann Chhim, 447 Mass. at
381-382. See also Commonwealth v. Hamilton, 83 Mass. App. Ct.
406, 409-410 (2013) (distinguishing sufficiency standard from
consonance with justice standard). While this court, as part of
its sufficiency review, was required to view the evidence in the 15
light most favorable to the Commonwealth, see Pfeiffer, supra at
122, the judge could choose to give greater "weight to the
defendant's version of the events" by crediting DiCataldo's
testimony and report, see Keough, 385 Mass. at 319.
Accordingly, this court's previous holding did not preclude the
judge from concluding that the "weight of the evidence . . .
point[ed] to a lesser crime" than the jury's verdict. See
Commonwealth v. Grassie, 476 Mass. 202, 214 (2017), S.C., 482
Mass. 1017 (2019).
c. Evidence outside trial record. The Commonwealth argues
that the judge erred by considering materials beyond the scope
of the trial record. The Commonwealth points to the judge's
reliance on the written reports of DiCataldo and Fife to glean
the defendant's likely state of mind at the time she set the
fire.
The authority of a judge under rule 25 (b) (2) to "reduce
the verdict or grant new trial is identical to the power" of
this court to conduct independent review pursuant to G. L.
c. 278, § 33E. See Commonwealth v. Carter, 423 Mass. 506, 513
(1996). Because this court, under § 33E review, may consider
"evidence of the defendant's character to which the jury may or
may not have had access," it follows that a judge, under rule
25 (b) (2) review, may do so as well. See Commonwealth v.
Coyne, 420 Mass. 33, 35 (1995). 16
The scope of new evidence that a judge may rely on to
reduce a verdict, however, is not unlimited. In Commonwealth v.
Kolenovic, 478 Mass. 189, 209 (2017), we held that a judge may
reduce a verdict on the basis of new evidence that is related to
"evidence presented at trial and the defense's theory of the
case," but that a judge may not consider "evidence and a defense
that were not introduced at all." If a judge were to consider
the latter sort of evidence, her analysis would not be informed
by her "familiarity with [the] case" (citation omitted). See
Commonwealth v. Millyan, 399 Mass. 171, 189 (1987).
DiCataldo's written report was directly related to the
testimony he gave at trial. The report described the results of
the examination that was the basis for his testimony and
included further details about the defendant's psychological
profile and history of abuse. Because DiCataldo had testified
about the subject matter of his report, the judge had an
adequate opportunity to assess the credibility of the report's
conclusions. See Turnpike Motors, Inc. v. Newbury Group, Inc.,
413 Mass. 119, 131 (1992). DiCataldo's report therefore falls
within the scope of evidence that may be considered as part of
rule 25 (b) (2) review. See Pagan, 471 Mass. at 543, 545-546
(judge may reduce defendant's verdict after considering trial
testimony of expert witness as well as report written by same
expert witness that was not presented at trial). 17
It is less clear whether the judge did not err in
considering Fife's report, as Fife did not testify at trial.
Contrast Pagan, 471 Mass. at 543. As the judge stated, however,
Fife's report "essentially agreed with [DiCataldo's]
conclusions": both reports referred to the defendant's
cognitive limitations, her mental disorder, and her inability to
carefully plan out her actions. Fife's report, unlike
DiCataldo's, stated that the defendant's "capacities to conform
her behavior to the requirements of the law [on the night of the
incident] . . . were impaired." DiCataldo's report, however,
nonetheless indicated that the defendant likely did not
contemplate the consequences of her actions at the time she set
the fire. Fife's report therefore was unnecessary to support
the judge's conclusions about the defendant's state of mind at
the time of the offense. Accordingly, we do not decide whether
the judge erred in considering Fife's report. Cf. Commonwealth
v. Perez, 411 Mass. 249, 260 (1991) (any error in admitting
evidence was "clearly harmless" because evidence "contain[ed]
nothing of importance that was not also contained in" other,
properly admitted statements).
d. Specific intent. The Commonwealth argues that the
judge applied an incorrect standard to her analysis of the
evidence. According to the Commonwealth, because this court
held that arson is a crime of general intent, the judge erred in 18
reducing the verdict on the basis that there was minimal
evidence that the defendant had the specific intent to burn a
dwelling.
A reduction in the verdict may not be based "solely on
factors irrelevant to the level of offense proved." Rolon, 438
Mass. at 822. For example, while evidence of provocation might
"operate to negate malice," the presence of provocation "is not
a proper basis on which to reduce a conviction of felony-murder"
where malice is not an essential element of felony-murder. See
id. at 823. Similarly, where a drug trafficking conviction does
not depend on the defendant knowing the "volume of the material
being sold," a judge may not reduce the verdict on the basis
that the defendant did not know that he or she possessed the
requisite volume of drugs (citation omitted). See Commonwealth
v. Sabetti, 411 Mass. 770, 780-781 (1992).
This court held in Pfeiffer, 482 Mass. at 120, that arson
is a crime of general intent. Accordingly, specific intent to
burn a dwelling is not a necessary element of arson. See id. at
121. Rather, "the intent element of § 1 . . . 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." Id. It would seem to follow that the defendant's 19
intent to burn a dwelling, or lack thereof, was irrelevant to
her arson conviction. See id. at 120-121, 143 (Appendix).
The judge's instructions to the jury, however, complicate
the matter. Jury instructions, even if erroneous, may in
certain instances become the "law of the case." See, e.g.,
Commonwealth v. Pinero, 49 Mass. App. Ct. 397, 399 (2000).
Here, both the defendant and the Commonwealth tried the case
under the impression that arson is a specific intent crime, and
the judge erroneously instructed the jury that specific intent
to burn a dwelling is a necessary element of arson.
The defendant argues that the erroneous instruction became
the law of the case and that it therefore was appropriate for
the judge, under her rule 25 (b) (2) review, to treat arson as a
crime of specific intent. In support of her argument, the
defendant cites this court's opinion on direct review of this
case. There, we affirmed the jury's verdict only after we had
determined that there was sufficient evidence to "establish that
[the defendant] had the specific intent to burn the apartment
building." See Pfeiffer, 482 Mass. at 121-122. This was
despite our having concluded that "the evidence was overwhelming
that the defendant acted with general intent and malice for
purposes of arson under G. L. c. 266, § 1." Id. at 121. We
employed a specific intent theory in our sufficiency review
because "the jury were not instructed that arson was a general 20
intent crime." See id. According to the defendant, this same
reasoning also applies under rule 25 (b) (2) review.
To address the defendant's argument, we begin by examining
why erroneous jury instructions can affect an appellate court's
review of the sufficiency of the evidence, as they did in
Pfeiffer, 482 Mass. at 121. The United States Supreme Court has
held that a criminal conviction cannot be affirmed "on the basis
of a theory not presented to the jury." See Chiarella v. United
States, 445 U.S. 222, 236 (1980). "To uphold a conviction on a
charge that was . . . [not] presented to a jury at trial offends
the most basic notions of due process." See Dunn v. United
States, 442 U.S. 100, 106 (1979). Otherwise, the defendant is
denied "an opportunity to confront, in a fact-finding forum,"
the theory of guilt on which he or she is convicted. See Cola
v. Reardon, 787 F.2d 681, 701 (1st Cir.), cert. denied, 479 U.S.
930 (1986). Hence, if the jurors are instructed that they may
convict the defendant only on the basis of a particular theory
of the crime, the jury's verdict may not be affirmed on the
basis that there was sufficient evidence to establish an
alternative theory of the crime. See Dunn, supra at 107
("appellate courts are not free to revise the basis on which a
defendant is convicted simply because the same result would
likely obtain on retrial"). 21
In Commonwealth v. Mills, 436 Mass. 387, 399 (2002), for
example, the defendant was found guilty of three counts of
larceny. The defendant's convictions "were based on a theory of
traditional larceny because that was the only instruction given
to the jury." Id. at 397. This court determined that there was
insufficient evidence to convict the defendant of traditional
larceny, but that there was sufficient evidence to convict the
defendant of larceny by false pretenses. See id. at 394, 397,
399. We held that, because the jury were instructed only on the
elements of traditional larceny, the defendant's convictions
could not stand. See id. at 399. We reasoned that a "criminal
conviction cannot be affirmed on appeal where the jury were not
instructed on the elements of the theory of the crime." Id. at
398. See United States v. Luciano-Mosquera, 63 F.3d 1142, 1152
(1st Cir. 1995), cert. denied sub nom. Pagan-San-Miguel v.
United States, 517 U.S. 1234 (1996), quoting United States v.
Angiulo, 897 F.2d 1169, 1196-1197 (1st Cir.), cert. denied, 498
U.S. 845 (1990) ("appellate determination of sufficiency must be
constrained by trial court's instructions; 'otherwise . . . [the
appellate court] would be sustaining a conviction on appeal on a
theory upon which the jury [were] not instructed below'");
United States v. Cluck, 542 F.2d 728, 731 n.2 (8th Cir.), cert.
denied, 429 U.S. 986 (1976) (because "the case was tried on the
theory that it was incumbent on the government to prove 22
wilfulness and intent to escape, . . . that theory became the
law of the case").6
As we discussed, under rule 25 (b) (2), the judge did not
analyze whether the evidence was sufficient to support the arson
conviction. Nonetheless, it was the judge's role, pursuant to
6 In Commonwealth v. Buttimer, 482 Mass. 754, 756 (2019), in which the defendant was convicted of armed assault with intent to murder, the jury erroneously were instructed that, to convict the defendant, the weapon used to assault the victim had to be "operational." We affirmed the conviction even though the Commonwealth failed to prove that the weapon used was operational. See id. at 770-771. We held that a "jury instruction that 'add[s] elements to the government's burden of proof beyond those required by statute . . . may not become the law of the case' if it is 'patently incorrect.'" Id. at 766 n.17, quoting United States v. Zanghi, 189 F.3d 71, 79 (1st Cir. 1999), cert. denied, 528 U.S. 1098 (2000). See Musacchio v. United States, 577 U.S. 237, 243 (2016) ("when a jury instruction sets forth all the elements of the charged crime but incorrectly adds one more element, a sufficiency challenge should be assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction").
The circumstances in Buttimer, 482 Mass. at 766 n.17, are distinct from those in Commonwealth v. Mills, 436 Mass. 387, 399 (2002). Where the appellate court disregards an extraneous element in its sufficiency analysis, the jury nonetheless will have found beyond a reasonable doubt that the remaining elements were present. See United States v. Inman, 558 F.3d 742, 748 (8th Cir.), cert. denied, 558 U.S. 916 (2009) ("If, for example, a jury is charged that it must find three statutory elements and a fourth element not required by applicable law, that the evidence is insufficient to prove the fourth non-statutory element does not mean that a conviction that is properly supported under the applicable law deprives the defendant of his right to due process"). In Mills, in contrast, had this court affirmed the conviction on the basis of larceny by false pretenses, it would have entertained a theory of the crime that the jury had not found to be true beyond a reasonable doubt. 23
rule 25 (b) (2), to determine whether the jury's verdict was
"against the weight of the evidence." See Commonwealth v.
Doucette, 408 Mass. 454, 456 (1990). Had the judge analyzed the
weight of the evidence according to a general intent theory of
the crime, she might have denied the defendant's rule 25 (b) (2)
motion on the basis of a theory that the defendant had not had
an "opportunity to confront . . . in a fact-finding forum." See
Cola, 787 F.2d at 701. See also Commonwealth v. Mills, 51 Mass.
App. Ct. 366, 373 n.11 (2001), S.C., 436 Mass. 387 (2002),
citing Commonwealth v. Longo, 23 Mass. App. Ct. 518, 527 (1987),
S.C., 402 Mass. 482 (1988) (it is "manifestly unjust and
unlawful to uphold a verdict on a basis not in the minds of the
contending parties, the judge, or the jury"). It therefore was
reasonable for the judge, in reviewing the evidence, to take
into account that the jury had convicted the defendant by reason
of specific intent. See Commonwealth v. Kozubal, 488 Mass. 575,
581 (2021), cert. denied, 142 S. Ct. 2723 (2022), quoting L.L.,
470 Mass. at 185 n.27 (judge's decision is abuse of discretion
if it "falls outside the range of reasonable alternatives"). We
conclude that the judge did not abuse her discretion by applying
a specific intent standard as part of her rule 25 (b) (2)
e. Retroactive application of Brown. In Brown, 477 Mass.
at 825 (Gants, C.J., concurring), this court abandoned the 24
doctrine of constructive malice, whereby felony-murder is an
independent theory of liability for murder. Rather, a
conviction of felony-murder now requires a "finding of actual
malice." Id. We made clear in our decision that the "abolition
of felony-murder liability from our common law of murder"
applies "only to cases where trial [began] after our adoption of
the change." Id. at 834. We reasoned that retroactive
application of our holding would be unfair to the Commonwealth,
because a "felony-murder case might have been tried very
differently if the prosecutor had known that liability for
murder would need to rest on proof of actual malice. For
instance, a prosecutor might have asked for an involuntary
manslaughter instruction if he or she had known that the jury
could not rest a finding of murder on felony-murder liability."
Id.
Here, the judge provided as one of her reasons for reducing
the defendant's verdict that, if the defendant's trial had
occurred one and one-half years later, our holding in Brown, 477
Mass. at 825, would have applied, and a finding of malice would
have been required to convict the defendant of felony-murder.
The judge reasoned that the Commonwealth would not be prejudiced
by her retroactive application of Brown because the jury had
received instructions on involuntary manslaughter and the
Commonwealth had been provided an opportunity to argue that the 25
defendant committed murder with malice. The Commonwealth argues
that, because we held in Brown that the abolition of
constructive malice would only apply prospectively, the judge's
consideration of Brown constituted an error of law.
We agree with the Commonwealth. "When announcing a new
common-law rule, . . . there is no constitutional requirement
that the new rule . . . be applied retroactively, and we are
therefore free to determine whether it should be applied only
prospectively." Commonwealth v. Martin, 484 Mass. 634, 645
(2020), cert. denied, 141 S. Ct. 1519 (2021), quoting
Commonwealth v. Dagley, 442 Mass. 713, 721 n.10 (2004), cert.
denied, 544 U.S. 930 (2005). A judge does not have the
discretion to supersede our determination that a new rule should
be applied prospectively only. See Commonwealth v. Vasquez, 456
Mass. 350, 356 (2010). Moreover, even though the jury received
instructions on malice and involuntary manslaughter, it is
nonetheless possible that the Commonwealth would have tried the
case differently had it known that the jury's failure to find
malice would justify a reduction in the verdict. For example,
the Commonwealth could have focused its efforts on presenting
evidence of malice to the jury, rather than centering its case
around establishing that the defendant had committed arson. See
Commonwealth v. Duke, 489 Mass. 649, 658 n.5, 660 (2022) (Brown
does not apply retroactively even where jury received 26
instructions on malice and involuntary manslaughter). In
addition, the proximity in time of the defendant's trial to our
decision in Brown had no bearing on whether the verdict against
the defendant was consonant with justice. See Commonwealth v.
Almeida, 452 Mass. 601, 613 (2008), quoting Rolon, 438 Mass. at
820.
The defendant maintains that the judge did not err, because
rule 25 (b) (2) review may be informed by "postverdict
developments" in the law. See Millyan, 399 Mass. at 189. The
defendant cites cases in which this court has allowed a
postverdict revision of common law to be considered as part of a
posttrial review of the verdict.
In Commonwealth v. Castillo, 485 Mass. 852, 865-866 (2020),
this court prospectively amended the factors that a jury must
consider to find that a murder was committed with extreme
atrocity or cruelty (Cunneen factors). We held that we would
not apply the amended Cunneen factors retroactively to the
defendant. See id. at 866. Pursuant to our authority under
G. L. c. 278, § 33E, however, we reduced the defendant's verdict
in part because our prospective revision of the Cunneen factors
suggested that a lesser verdict would be more just. See id. at
867-868.
Similarly, in Commonwealth v. Pring-Wilson, 448 Mass. 718,
720, 720, 731 (2007), a judge granted the defendant a new trial 27
pursuant to rule 30 (b). The judge's decision was based on our
holding in Commonwealth v. Adjutant, 443 Mass. 649 (2005). We
affirmed, even though Adjutant was released after the defendant
in Pring-Wilson had been convicted and our holding in Adjutant
was to be applied only prospectively. See Pring-Wilson, supra
at 736-737.
Our decisions in Castillo, 485 Mass. at 867, and Adjutant,
443 Mass. at 667, however, are distinct from our holding in
Brown.7 In Brown, 477 Mass. at 834, we did not hold simply that
the new common-law rule was a prospective change. We went
further and stated that the change would "have no effect on
felony-murder cases already tried, including this case." Id.
We have reiterated this holding in subsequent cases. See
7 The defendant cites two additional cases, but neither involves the application of a prospective change in the common law. In Commonwealth v. Alcide, 472 Mass. 150, 167 n.23 (2015), we stated that, in reviewing the defendant's case under § 33E, we were "not unmindful of the concerns that prompted" a prospective change in the rules concerning the admissibility of eyewitness testimony. We made clear in our decision, however, that our analysis was limited to the prevailing law at the time of trial. See id. at 165. In Commonwealth v. Phinney, 446 Mass. 155, 168 (2006), S.C., 448 Mass. 621 (2007), we affirmed a judge's decision to grant a new trial, where the decision was based in part on the police's failure to record the defendant's confession. This court had held, in a decision that followed the defendant's trial, that "defense counsel is entitled to pursue the failure of the police to record a defendant's statements." See Commonwealth v. Diaz, 422 Mass. 269, 273 (1996). We did not, however, characterize our holding in Diaz as a change in the law. See id. Furthermore, we did not state in that decision that our holding would be applied only prospectively. See id. 28
Commonwealth v. Tate, 486 Mass. 663, 674 (2021); Martin, 484
Mass. at 645-646; Commonwealth v. Phap Buth, 480 Mass. 113, 120,
cert. denied, 139 S. Ct. 607 (2018).
Further, in Commonwealth v. Cheng Sun, 490 Mass. 196, 224-
225 (2022), we made clear that Brown may not be applied
retroactively even in the context of § 33E review. Contrast
Castillo, 485 Mass. at 867-868. It follows that the same is
true in the context of rule 25 (b) (2) review. See Reavis, 465
Mass. at 891 ("judge considering a motion to reduce a verdict
under [rule 25 (b) (2)] may rely on essentially the same
considerations as does this court when deciding whether to
reduce a verdict to a lesser degree of guilty pursuant to
[§ 33E]").
f. Sufficiency of remaining factors. Although the judge's
consideration of Brown was an error of law, it does not
necessarily follow that her decision to reduce the verdict was
an abuse of discretion. The judge did not state expressly in
her memorandum of decision that our holding in Brown was
necessary to her conclusion that a lesser verdict would be more
consonant with justice. Rather, the judge explained that her
decision was based on "the combination" of the four factors she
considered.
Ordinarily in these circumstances, we might remand to the
judge for a reconsideration of her decision in light of our 29
holding. See Grassie, 476 Mass. at 215-216. This would provide
the judge an opportunity to determine whether the remaining
factors she considered on their own warrant a verdict reduction.
Cf. Commonwealth v. J.F., 491 Mass. 824, 843 (2023) (remanding
case so judge could "expand on his consideration" because he
abused his discretion by not discussing factors relevant to his
decision).
Here, however, the judge has retired, so we are precluded
from employing such a remedy. See Commonwealth v. Alcide, 472
Mass. 150, 158 n.10 (2015). While we could remand to another
Superior Court judge, see Commonwealth v. Randolph, 438 Mass.
290, 291 n.2 (2002), "[w]e are in as good a position to deal
with this matter as would be some other judge," Gaulden, 383
Mass. at 547. We therefore take it upon ourselves to decide
whether the judge's decision to reduce the verdict would have
been an abuse of discretion had it been based solely on the
other factors considered. See Commonwealth v. Andrade, 488
Mass. 522, 544-545 (2021).
We conclude that, had the judge's reasoning not included
her analysis of Brown, the verdict reduction would not have been
an abuse of discretion. See Sokphann Chhim, 447 Mass. at 381.
The weakness of the evidence showing that the defendant had the
intent to burn a dwelling, in addition to mitigating
circumstances, constituted a reasonable basis for the judge's 30
conclusion that a verdict of involuntary manslaughter was more
consonant with justice than a verdict of felony-murder in the
second degree. See Commonwealth v. Dowds, 483 Mass. 498, 513
(2019) (mitigating circumstances); Rolon, 438 Mass. at 821-822
(weakness of evidence).
As the judge noted, only minimal evidence was presented at
trial to suggest that the defendant intended to burn the
dwelling at the time she set the fire. See Lyons, 444 Mass.
at 292. Indeed, there was little reason to believe that the
defendant wanted to burn the apartment in which she lived; the
apartment housed all of the defendant's possessions, as well as
the defendant's two year old child, for whom the defendant was
by all appearances an attentive and caring mother. See Pagan,
471 Mass. at 545 (judge may consider absence of motive under
rule 25 [b] [2] review). Contrast Choy v. Commonwealth, 456
Mass. 146, 150-151, cert. denied, 562 U.S. 986 (2010) (rational
jury could find defendant had committed arson in part because
there was evidence that defendant had motive to collect on life
insurance policy).
In addition, the judge found that, due to her cognitive
limitations, the defendant likely did not comprehend the risk of
the fire spreading to the dwelling. See Pagan, 471 Mass. at 544
(reduction in verdict affirmed in part because judge credited
doctor's "testimony that the defendant lacked the cognitive 31
capacity to premeditate the killing"). DiCataldo testified that
the defendant's cognitive limitations impaired her ability to
comprehend fully the consequences of her actions, and
DiCataldo's report further concluded that the defendant was
prone to "impulsive, poorly planned and contemplated behavior."
See Commonwealth v. Concepcion, 487 Mass. 77, 95, cert. denied,
142 S. Ct. 408 (2021) (verdict reduced in part because "expert
testimony presented at trial suggested" that defendant
"functioned at the level of someone who was nine or ten years
old"). The judge further found, on the basis of DiCataldo's
report, that the defendant's mental disorder also likely
diminished her capacity to understand the risks entailed by her
action.
The judge acknowledged that, once the fire had started, the
defendant did nothing either to report or to extinguish it. On
direct review, this court stated that the jury reasonably could
have inferred from this evidence "that the defendant acted with
the requisite specific intent at the time she set the fire."
Pfeiffer, 482 Mass. at 123. As we discussed, however, the judge
was not required to draw this same inference as part of her rule
25 (b) (2) review. See Reavis, 465 Mass. at 891. Instead, the
judge reasoned that the defendant's failure to act was evidence
that the defendant had developed the requisite intent only after
the fire had started. 32
Because the judge's decision to reduce the verdict was
sufficiently supported by the weakness of the evidence and
mitigating circumstances, we conclude that the verdict reduction
was not an abuse of discretion.8
g. Timing of rule 25 (b) (2) motion. At oral argument,
the Commonwealth argued that rule 25 (b) (2) grants a judge the
authority to reduce a verdict only before direct appellate
review. The Commonwealth "did not make this argument in its
brief; therefore, it is waived." Board of Registration in Med.
v. Doe, 457 Mass. 738, 743 n.12 (2010). Accordingly, we do not
address the issue.
3. Conclusion. Although the judge's consideration of
Brown was an error of law, we nonetheless conclude that the
reduction in the defendant's verdict was not an abuse of
discretion. We therefore affirm the order granting in part the
defendant's motion for a new trial or, in the alternative, for a
reduction in the verdict.
So ordered.
8 Because we conclude, on the basis of these two factors, that the reduction in the verdict was not an abuse of discretion, we do not address the Commonwealth's argument that the judge was directly estopped from considering her erroneous supplemental instruction to the jury.