Commonwealth v. Pfeiffer

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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)

review.

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.