# Commonwealth v. Cunneen > Massachusetts Supreme Judicial Court · May 16, 1983 · 389 Mass. 216 URL: https://www.frixlaw.com/law-library/cases/9735664 ## Case - **Full name:** Commonwealth vs. Arthur J. Cunneen - **Court:** Massachusetts Supreme Judicial Court - **Decided:** May 16, 1983 - **Citations:** 389 Mass. 216; 449 N.E.2d 658; 1983 Mass. LEXIS 1461 - **Precedential status:** Published - **Opinion:** Concurrence by Abrams - **Judges:** Hennessey, Wilkins, Abrams, Nolan, Lynch - **Cited by:** 171 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9735664 ## How later opinions describe it (automated extraction) - 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 ## Opinion text 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9735664. Public record. Not legal advice.