Will Murder by Extreme Atrocity or Cruelty be Redefined in Massachusetts? The Concurring Opinion in the Case of Commonwealth v. Berry, 466 Mass. 763 (2014)

First degree murder in Massachusetts can be proved by the district attorney through one of three theories. One is by deliberate premeditation. To prevail under this theory the prosecution must show an intent to kill and that the decision to do so followed a period of reflection. The second way is through the felony murder rule. There, the prosecutor can secure a conviction by showing that the victim was killed during the commission of a felony that is punishable by a life prison sentence. The third way is with extreme atrocity or cruelty. Under this theory the jury must find that one of seven specific factors existed at the time of the killing.

Six of the Seven Cunneen Factors Ignore the Defendant’s Intent

The seven factors, known as the Cunneen factors stem from a 1983 case and the jury is limited to considering these factors only in making its decision on this theory of first degree murder. In Commonwealth v. Berry, 466 Mass. 763 (2014) Justice Gants in his concurring opinion suggested that prospectively a challenge to the instruction on this theory might be appropriate. In doing so he commented that only the first Cunneen factor “addresses the defendant’s state of mind”. In other words, a verdict based on any of the remaining six factors may be rendered even if the defendant “did not intend that the victim suffer before he died”. The concurring opinion went further suggesting that the extreme atrocity or cruelty jury instruction currently approved might not be a just way to distinguish first degree from second degree murder where it relies on the Cunneen factors.

How Will This Issue be Addressed in the Future?

I imagine the Supreme Judicial Court will decide this issue in the next year or two. The challenge will be presented to the Court one of two ways; 1) on reversible error grounds where a trial attorney objected to the jury being instructed with the Cunneen factors, or 2) by raising a challenge under the substantial likelihood of a miscarriage of justice theory. The latter seems more likely than the former since most trial lawyers accept the model jury instructions for homicide cases and do not object to the recitation of the Cunneen factors. As far as the outcome is concerned that will probably depend on the facts of the particular case. If it is clear that the jury relied on the first Cunneen factor the conviction might be affirmed. But, whereas here, there is a concern or an absence of overwhelming evidence as to the particular factor the jury embraced the possibility of success on appeal is very real. This is particularly where at least two other Supreme Judicial Court justices seem to share Justice Gants’ concerns.

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