stating that indifference to a victim’s suffering is one of the factor’s upon which a finding of extreme atrocity or cruelty can be based
How later courts described this case
- stating that indifference to a victim’s suffering is one of the factor’s upon which a finding of extreme atrocity or cruelty can be based
- lack of repetition significant in finding that denial of mistrial lay within judge’s discretion
- factors include “extent of physical injuries, number of blows, manner and force with which delivered, [and] instru ment employed”
- factors which jury may consider in deciding whether crime committed with extreme atrocity or cruelty include [1] indifference to or taking pleasure in the victim’s suffering, [2] consciousness and degree of suffering of the victim, [3] extent of physical injuries, [4] number of blows inflicted, [5] manner and force with which blows were delivered, [6] nature of instrument or weapon used, and [7] disproportion between means needed to cause death and those employed
Written by the judges who cited it.
The opinion
Abrams, J.
(concurring). I agree with the court that there is no reason for us to exercise our power under G. L. c. 278, § 33E. However, I do not join in the court’s discussion of the application of Commonwealth v. Gould, 380 Mass. 672 (1980), to the instruction on extreme atrocity and cruelty in this case. I believe that it is unnecessary to address the application of Gould . I do not dissent because the court, albeit grudgingly, accepts our decision in Gould. Supra at 228-229 .
Our duty under G. L. c. 278, § 33E, is to consider broadly the whole case on the law and the facts to determine whether the verdict is “consonant with justice.” Commonwealth v. Seit, 373 Mass. 83, 94 (1977). Commonwealth v. Gould, 380 Mass. 672, 680 (1980). Commonwealth v. Cole, 380 Mass. 30, 38-39 (1980). We have repeatedly said that “[njeither the conventional type of appellate review permitted in a criminal case, nor the special type prescribed by G. L. c. 278, § 33E, for a ‘capital case,’ is intended to afford an opportunity, from the vantage point of hindsight, to comb the trial record for interesting questions which could have been, but in fact were not, raised at the trial, or to attempt to convert the consequences of unsuccessful trial tactics and strategy into alleged errors by the judge.” Commonwealth v. Johnson, 374 Mass. 453, 465 (1978). Commonwealth v. Ely, 388 Mass. 69, 73 (1983). Commonwealth v. Bradshaw, 385 Mass. 244, 280 (1982). Commonwealth v. Lee, 383 Mass. 507, 512 (1981). Despite our statement, the court in this case, for the first time, answers an issue not raised below and not raised by the evidence, cf. Commonwealth v. Gould, 380 Mass. 672 (1980); Commonwealth v. Cole, supra, but which presents an “in *232 teresting question of law.” Since the evidence does not warrant consideration of the question raised by Cuneen, I would not reach or answer it, and I do not join in that portion of the opinion.
In this case, there is insufficient evidence in the record showing that the defendant suffered from a degree of mental impairment similar to that in Gould . At trial, there was only evidence that the defendant had an I.Q. of eighty and was considered borderline mentally retarded. Other evidence tended to show that he was functioning coherently and was leading a stable life. Thus, an instruction based on Gould was not essential, and the lack of such an instruction did not create a substantial risk of a miscarriage of justice, warranting the use of our G. L. c. 278, § 33E, power to reduce the verdict or remand for a new trial. As this reasoning is dispositive, I believe that the court should not have addressed any further interpretation of Gould . See Commonwealth v. Graham, 388 Mass. 115, 123 (1983).
I adhere to my view that proven mental impairment is directly related to the issue of the degree of guilt, and that “fairness requires that an impaired mind may also be considered as evidence bearing on whether or not the defendant committed the murder with extreme atrocity or cruelty.” Commonwealth v. Gould, 380 Mass. 672, 684-685 (1980).