explaining that failure to act on parental duties to care for children “can constitute murder or involuntary manslaughter” (citation and internal quotation marks omitted)
How later courts described this case
- explaining that failure to act on parental duties to care for children “can constitute murder or involuntary manslaughter” (citation and internal quotation marks omitted)
- implicitly discrediting trial counsel's affidavit concerning alleged deficiencies in his investigation "was within the province of the judge"
- motion judge who also was trial judge may use knowledge and evaluation of evidence at trial in determining whether to hold evidentiary hearing on motion for new trial
- defendant’s abuse toward other children probative of his state of mind toward child who was victim of murder
Written by the judges who cited it.
Distinguished
Distinguished by Commonwealth v. Lally, 473 Mass. 693 (2016)
467 Mass. 799 (2014) is inapposite.
The opinion
Duefly, J.
(concurring). I concur with the court’s opinion in that it correctly applies our existing jurisprudence on murder in the first degree on a theory of extreme atrocity or cruelty. I write separately to reiterate that we should revisit this jurisprudence in an appropriate case where the issue is raised and fully briefed. See Commonwealth v. Berry, 466 Mass. 763, 774 (2014) (Gants, J., concurring, with whom Ireland, C.J., and Duffly, J., joined). Under current law, a jury may find that a defendant acted with extreme atrocity or cruelty without considering the defendant’s mental state beyond the finding of malice that underlies all murder convictions. See Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). In finding that the defendant acted with malice in this case, the jury apparently did not conclude that he intended either to kill his daughter or to cause her grievous bodily harm, but only that a reasonable person in the defendant’s circumstances would have known that *829 Ms conduct created a plain and strong likelihood of death. See ante at part 2.b and notes 30-31. Had the jury been required to find that the defendant either intended to cause an extremely atrocious or cruel death or was indifferent to such a result, they might not have convicted him of murder in the first degree. I would suggest that the court consider imposing such a requirement before a conviction of murder may be elevated to murder in the first degree based on extreme atrocity or cruelty.
*832 a