Petition for Writ of Certiorari — Melissa Pfeiffer, Petitioner v. Massachusetts

Supreme Court briefSep 5, 2019

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No.

IN THE

Supreme Court of the United States

MELISSA PFEIFFER,

Petitioner,

COMMONWEALTH OF MASSACHUSETTS,

Respondent.

On Petition For A Writ Of Certiorari To

The Supreme Judicial Court of Massachusetts

APPENDIX

REBECCA JACOBSTEIN

Counsel of Record

COMMITTEE FOR PUBLIC

COUNSEL SERVICES

44 Bromfield Street

Boston MA 02108

(617) 910-5726

rjacobstein@publiccounsel.net

Attorney for Petitioner

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TABLE OF APPENDICES

APPENDIX A

Opinion of the Supreme Judicial Court

Commonwealth v. Pfeiffer, 121 N.E.3d 1130 (Mass. 2019)..........00.... la

APPENDIX B

Motion for Reconsideration (May 22, 2019)....0...ccccceccccssssessecseceseceeseese 20a

APPENDIX C

Certified Docket Sheet with Entry Denying Motion for Reconsideration

Commonwealth v. Pfeiffer, SJC-12431 (June 7, 2019).....ccccccseccseseseee 28a

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019)

121 N.E.3d 1130 oe a

482 Mass. 110

Supreme Judicial Court of Massachusetts,

Suffolk..

COMMONWEALTH

Melissa PFEIFFER.

SJC-12431

Argued September 6, 2018

Decided May 1, 201

Synopsis

Background: Defendant was convicted in the Superior Court

Department, Suffolk County, Janet L. Sanders, J., of arson of

dwelling house, second-degree felony-murder predicated on

arson, injuring firefighter. Defendant appealed.

Holdings: The Supreme Judicial Court, Lowy, J., held that:

arson was general intent offense;

evidence was sufficient to support conviction for arson of

dwelling house;

accidentally or negligently set fires could not form basis for

arson of dwelling house;

erroneous supplemental instruction that intent necessary to

prove arson could be established if defendant negligently or

accidentally caused fire and then maliciously and willfully

made no attempt to extinguish it or report it was harmless;

arson of dwelling house, which served as predicate for

second-degree felony murder, was “inherently dangerous

felony” as matter of law;

sentence of life imprisonment, with eligibility for parole after

15 years, for felony murder did not violate prohibition against

cruel and unusual punishment under Eighth Amendment and

Massachusetts Declaration of Rights; and

Commonwealth was not obligated

instructions on elements of second-degree felony murder and

arson of dwelling house.

to provide legal

Affirmed.

Gants, C.J., filed opinion dissenting in part, in which Lenk

and Budd, JJ., joined.

**1134 Homicide. Felony-Murder Rule. Burning a

Dwelling House. Fire Fighter. Intent. Evidence, Intent, Grand

jury proceedings. Grand Jury. Practice, Criminal, Instructions

to jury, New trial, Bill of particulars, Sentence, Grand jury

proceedings, Dismissal. Constitutional Law, Sentence. Due

Process of Law, Sentence.

INDICTMENTS found and returned in the Superior Court

Department on March 8, 2011.

The cases were tried before Janet L. Sanders, J.

The Supreme Judicial Court granted an application for direct

appellate review.

Attorneys and Law Firms

Rebecca A. Jacobstein, Committee for Public Counsel

Services, for the defendant.

Colby M. Tilley, Assistant District Attorney (Julie S.

Higgins, Assistant District Attorney, also present) for the

Commonwealth.

Marguerite T. Grant, Assistant District Attorney, for district

attorney for the Norfolk district & others, amici curiae,

submitted a brief.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &

Kafker, JJ.

Opinion

LOWY, J.

*111 Following an argument with her boyfriend, the

defendant set a bag of his clothes on fire inside their

apartment, then fled the building without calling for help

or waming the occupants of other units. One person died

in the resulting two-alarm fire. Three others, including two

firefighters, were injured. A Superior Court jury convicted

the defendant of arson of a dwelling house, G. L. c. 266, §

1; felony-murder in the second degree, G. L. c. 265, § 1; and

two counts of injuring a firefighter, G. L. c. 265, § 13D1/2.

Commonweaith v. Pfeiffer, 482 Mass. 110 (2019)

121NE.3d1130

The defendant appealed, and we granted her application for

direct appellate review.

The defendant raises several challenges to the arson

conviction, which served as the predicate for the other

charges: that the evidence was insufficient to prove that she

specifically intended to set the apartment building on fire;

that the trial judge erred, as a matter of law, in instructing

the jury on an “alternative theory” of arson, namely, that she

also could be found guilty if she accidentally or negligently

set the fire and then wilfully and maliciously failed to

extinguish or report it; and that the Commonwealth expressly

waived the right to pursue that alternative theory by its

response to her pretrial motion for a bill of particulars.

Moreover, she challenges the conviction of felony-murder in

the second degree on the ground that the judge declared, as

amatter *112 of law, that arson is an inherently dangerous

felony, rather than letting the jury determine whether her

conduct evidenced a conscious disregard for the risk to

human life. Finally, the defendant argues that the verdicts

should be vacated and the indictments dismissed because the

Commonwealth declined her request to instruct the grand jury

regarding the elements of the offenses.

The parties, both in the trial court and on appeal, have treated

the charge of arson under G. L. c. 266, § 1, as a specific

intent crime. As discussed herein, however, arson under § 1,

which is derived from the common law, is a crime requiring

general intent with malice. We accordingly **1135 provide

an appendix containing a model jury instruction for arson of

a dwelling house under G. L. c. 266, § 1, which has been

unanimously approved and recommended by this court.

The statute also makes it unlawful for anyone to “aid ],

counsel[ ] or procure[ ] the burning of ... a dwelling

house.” G. L. c. 266, § 1. As the defendant was not

charged under that portion of the statute, we do not

address it here or in the model jury instruction appended

hereto.

Concerning the defendant's claims on appeal, we conclude

that the evidence, viewed in a light most favorable to

the Commonwealth, was sufficient to establish that she

specifically intended to burn the apartment building. The

court unanimously agrees that the instruction on the

alternative theory of arson was erroneous, and a majority

concludes that the error, whether it is viewed for prejudice

or for a substantial miscarriage of justice, does not warrant

overturning the verdicts. As there also is no merit to the

defendant's other arguments, the verdicts are affirmed.

Background. The facts developed at trial are as follows. On

December 24, 2010, the defendant was living in a groundfloor unit of a two-story apartment building in Chelsea with

her boyfriend, William Brewer, and their two year old son.

Early that evening, the defendant dropped their son off to

spend the night at a relative's home, arriving back at the

apartment at approximately 9 P.M. Immediately upon the

defendant's return, she and Brewer engaged in a heated

argument that resulted in Brewer leaving for a nearby bar.

Approximately one hour later, he returned and found that the

defendant, still angry, had locked him out of the apartment.

From the sidewalk outside, Brewer spoke to the defendant

through a window and attempted to calm her down and

persuade her to let him in. Being unsuccessful in both regards,

Brewer departed again, this time looking to buy marijuana.

Approximately fifteen minutes later, Brewer retumed again.

This *113 time, as he approached the building, he observed

the defendant running out of the building. When he asked her

what she was doing, she responded that his clothes were on

fire. The defendant had lit a piece of paper on fire and tossed it

on a duffel bag full of Brewer's clothes, which was sitting on

the floor in a corner of the apartment. She had then changed

out of her night clothes and left, locking the exterior door

of the building behind her, 2 and without calling for help or

alerting other occupants. As she then stood outside arguing

with Brewer about what she had done, flames were already

visible inside through one of the apartment windows.

The defendant, who did not testify at trial but provided

a recorded interview to the police that was played for

the jury, denied purposely locking the exterior door

and suggested it must have locked automatically as

she exited. It is undisputed, however, that neither the

defendant nor Brewer ever possessed a key to that door.

Yet, as the defendant admitted, that is the door they

regularly used to enter and exit the building. Typically,

therefore, the exterior door must have been unlocked.

Otherwise, they would have been locked out of the

building on a regular basis. It is also undisputed that the

exterior door was unlocked when Brewer first returned

(from the bar) and found the defendant had locked him

out by locking their apartment door, which was located

just inside the exterior door. Only minutes later, when he

returned for a second time and observed the defendant

running out of the building, the exterior door was now

locked. As Brewer testified, “it doesn't ... lock[ ] unless

you lock it. You have to lock it from the inside and

she knew I didn't have no key ... to that door.” Unless

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019)

121N.E.3d 1130 oS /

the exterior door somehow locked on its own on that

one occasion, the most reasonable inference from the

evidence is, as Brewer testified, that the defendant locked

it.

**1136 As the two argued, a passing car came to a halt, and

a woman and three men jumped out. The woman immediately

used her cellular telephone to call 911. She then asked

what had happened, and the defendant replied that she had

set Brewer's clothes on fire. Meanwhile, one of the men,

believing that Brewer had said there were children inside,

attempted to enter the building. He broke down the locked

exterior door, only to find that the fire had already become so

intense that it was not.safe to go inside.

While this was occurring, a man and a woman who occupied

the unit directly above that of the defendant attempted to

leave the building using the interior staircase, but the fire

had already rendered it impassable. Trapped on the landing

at the top of the stairs, they began shouting for help and

taking turns trying to breathe through a small window. The

man, his upper body already covered in burns, squeezed

through the window and jumped to the street *114 below,

suffering a broken ankle and spinal fracture in the process.

The woman, meanwhile, remained trapped on the second

floor until firefighters located her, unconscious; she died of

smoke inhalation and thermal injuries. Two firefighters also

were injured.

The woman who had called 911 confronted the defendant. The

defendant again stated that she had set Brewer's clothes on

fire, and added that she was angry that he had left without her

to purchase drugs. 3 She also stated that it was not the first

time she had done something like this. She destroyed personal

items belonging to Brewer on several prior occasions after the

two had argued. She had even set a bag of his clothes on fire

once before, but Brewer quickly managed to extinguish the

fire.

In the days that followed, the defendant would change

her story several times, first suggesting that she did not

know how the fire started, and then that it was started by

a defective baseboard heater, and finally that Brewer had

started it.

Through the cross-examination of witnesses at trial, the

defendant challenged whether the Commonwealth could

prove beyond a reasonable doubt either that she set the fire or,

if she did, that she did so with the specific intent to burn the

dwelling. She also called one witness, a forensic psychologist,

who opined that the defendant suffered from low cognitive

functioning and posttraumatic stress disorder (PTSD)4 that

“quite likely” impaired her ability to fully appreciate and

understand the consequences of her acts as compared to the

average person. He further opined, however, that she had the

capacity to appreciate the wrongfulness of her conduct and

to conform her conduct to the requirements of the law at the

time she set the fire (i.e., she was, in his opinion, criminally

responsible for her conduct). 5

4 The psychologist opined that the defendant's

posttraumatic stress disorder (PTSD) resulted from her

having experienced sexual and other physical abuse since

she was an infant, a childhood spent being passed from

one foster home to another, and periods of homelessness

as an adult.

The psychologist also testified that the defendant's low

cognitive functioning and PTSD impaired her ability to

form the specific intent to burn the building, but his

only basis for that was her self-report that the idea “‘she

formulated was to burn [Brewer's] clothing because she

was angry at him and wanted to get revenge .... [SJhe lit

a piece of paper on fire ... and then dropped that on his

clothing and ... left.”

At the close of evidence, the jury considered charges of arson

of a dwelling house; felony-murder in the second degree;

murder in the second degree based on malice; involuntary

manslaughter; *115 and two counts **1137 of injuring a

firefighter. © As to all charges, the jury were instructed on

the options of finding the defendant not guilty or not guilty

by reason of lack of criminal responsibility. The jury found

the defendant guilty of arson, felony-murder in the second

degree, and injuring the two firefighters. 7

6 The trial judge entered a required finding of not guilty on

a charge of assault and battery by means of a dangerous

weapon, G. L. c. 265, § 15A, in connection with the man

forced to jump from the second floor.

The jury did not return a verdict on the alternate theory

of second-degree murder, i.e., murder with malice. The

defendant was sentenced to life imprisonment on the

murder conviction, with eligibility for parole after fifteen

years, and to two terms of from three to five years in

prison for causing injury to the firefighters, both to be

served concurrently with the sentence on the murder

charge. At the request of the Commonwealth, the arson

conviction was dismissed as duplicative of the felonymurder conviction.

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019)

4121NE.3d1130 —_ — 7

Discussion. 1. Intent necessary to prove arson. ‘Few areas of

criminal law pose more difficulty than the proper definition

of the mens rea required for any particular crime.” United

States v. Bailey, 444 U.S. 394, 403, 100 S.Ct. 624, 62 L.Ed.2d

575 (1980). As the present case makes clear, this is true for

the crime of arson of a dwelling house under G. L. c. 266,

§ 1, concerning at least whether a conviction requires proof

of specific or general intent and whether a conviction can be

secured against someone who accidentally or negligently sets

a fire and then wilfully and maliciously fails to extinguish or

report it. We use this opportunity to clarify those issues.

The “venerable distinction at common law between general

and specific intent has been the source of a good

deal of confusion” (citations and quotations omitted).

Commonwealth v. Gunter, 427 Mass. 259, 268, 692 N.E.2d

515 (1998), S.C, 456 Mass. 1017, 924 N.E.2d 687 (2010)

and 459 Mass. 480, 945 N.E.2d 386, cert. denied, 565 U.S.

868, 132 S.Ct. 218, 181 L.Ed.2d 119 (2011). As noted, the

parties here have treated arson under G. L. c. 266, § l,asa

specific intent crime, requiring proof that the defendant not

only “consciously intended to take certain actions, but that

[s]he also consciously intended certain consequences.” Id. at

268, 692 N.E.2d 515. See id. at 268-269 & n.12, 692 N.E.2d

515 (discussing distinction between common-law concepts

of “general” and “specific” intent). To date, we have not

had occasion to address squarely whether G. L. c. 266, § 1,

requires proof of specific intent.

“As with all matters of statutory interpretation, we look first

to the plain meaning of the statutory language.... Where

the language is clear and unambiguous, it is to be given

its ‘ordinary meaning.’ ... Of course, this meaning must

be reasonable and supported by the purpose and history

of the statute” (citations and *116 quotations omitted).

Commonwealth v. Mogelinski, 466 Mass. 627, 633, 1 N.E.3d

237 (2013). To secure a conviction for arson in this case,

the statute required proof that the defendant “wilfully and

maliciously set ] fire to, burn[ed], or cause[d] to be burned ...

a dwelling house.” G. L. c. 266, § 1. To establish that the

defendant acted with a culpable state of mind, therefore,

required proof that she acted “wilfully and maliciously.” 8

8 The Commonwealth also had to prove that the apartment

building was a “dwelling house” and that the defendant

set fire to, burned, or caused it to be burned, but the

defendant has not disputed those elements on appeal.

Although our jurisprudence has not addressed whether arson

requires specific intent, we have had occasion, in arson and

nonarson cases alike, to consider the meaning of the terms

“wilfully” and “maliciously.” **1138 Recently this court,

interpreting another statute, noted that the term “wilfully” has

not been defined consistently in either dictionaries or across

our jurisprudence. See Millis Pub. Schools v. M.P., 478 Mass.

767, 775-776, 89 N.E.3d 1170 (2018) (in context of analyzing

Statute that forbids wilfully failing to attend school, noting

that some dictionaries and appellate decisions focus on actor's

purpose, others on whether actor's conduct was voluntary or

intentional). At its core, however, it “means intentional and by

design in contrast to that which is thoughtless or accidental.”

Commonwealth v. McGovern, 397 Mass. 863, 868, 494

N.E.2d 1298 (1986) (wilful and malicious destruction of

property). For purposes of arson, malice “comprises only

three components .... ‘The wilful doing of an unlawful

act without excuse is ordinarily sufficient to support the

allegation that it was done maliciously and with criminal

intent.’ ” Commonwealth v. Dung Van Tran, 463 Mass. 8, 26,

972 N.E.2d 1 (2012), quoting Commonwealth v. McLaughlin,

431 Mass. 506, 513 n.6, 729 N.E.2d 252 (2000). ? Although

both “malicious” and “wilful” require that a person act

intentionally, the definitions shed no light *117 on whether

the statute requires specific or general intent. !°

9 In Commonwealth v. Niziolek, 380 Mass. 513, 404

N.E.2d 643 (1980), where a defendant appealed from his

conviction of arson, we stated that “malice ‘characterizes

all acts done with an evil disposition, a wrong and

unlawful motive or purpose; the wilful doing of an

injurious act without lawful excuse.” Id. at 527, 404

N.E.2d 643, quoting Commonwealth v. York, 9 Met.

93, 104 (1845). As we subsequently explained in

McLaughlin, 431 Mass. at 513 n.6, 729 N.E.2d 252,

however, “[t}he first half of the Niziolek formulation (the

part that precedes the semicolon) is, strictly speaking,

surplusage that serves only to round out the meaning of

the second half... Put otherwise, ‘an act done with an evil

disposition, a wrong and unlawful motive or purpose’ is

essentially synonymous, at least in arson cases, with ‘the

wilful doing of an injurious act without lawful excuse’

” (citations omitted). Accordingly, we conclude that it

is best to dispense with the first half of the Niziolek

formulation and its somewhat antiquated reference to

an “evil disposition.” See Dung Van Tran, 463 Mass.

at 26, 972 N.E.2d 1 (modern definition of “wilfulness”

dispenses with “reference to any evil intent” [citation

omitted] ).

At least two commentators have suggested that the

term “wilfully” is redundant when coupled with the

term “maliciously.” See R.M. Perkins and R.N. Boyce,

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019)

121N.E.3d 1130 oe a

Criminal Law 275 (3d ed. 1982) (“intentional act creating

an obvious fire hazard to the dwelling of another, done

without justification ... might well be characterized

as ‘wilful’ ... and would certainly be malicious, but

as the law has developed it is a mistake to assume

that the phrase ‘wilful and malicious,’ when found

in the definition of common-law arson, adds some

distinct requirement not included in the word ‘malicious’

alone” [footnote omitted] }; Poulos, The Metamorphosis

of the Law of Arson, 51 Mo. L. Rev. 295, 323 (1986)

(although “the mens rea of arson is generally described

as ‘maliciously,’ accompanied by either ‘willfully’ or

‘voluntarily,’ the latter words add nothing to the concept

[footnote omitted] ).

doy

of ‘malice

It is true that in certain nonarson cases we have suggested

that “[c]onduct is wilful when the actor intends both the

conduct and its harmful consequences.” Commonwealth v.

Schuchardt, 408 Mass. 347, 352, 557 N.E.2d 1380 (1990)

(wilful and malicious destruction or injury of .personal

property, dwelling house, or building of another under G.

L. c. 266, § 127). See Commonwealth v. McDonald, 462

Mass. 236, 242, 967 N.E.2d 1101 (2012) (considering term

“wilfully” in criminal harassment statute, G. L. c. 265, §

43A). Here, a specific intent instruction was requested by

both parties and utilized by the trial judge. i Yet, such an

interpretation has never been squarely adopted for § 1.

i The judge instructed, “The word ‘willfully’ means that

the act was intentional and by design, rather than an act

that is thoughtless or accidental. A person acts willfully

if she intends both her conduct, for example, the lighting

of a paper, and the resulting harm, the burning of the

building or some part of it.” See Massachusetts Superior

Court Criminal Practice Jury Instructions § 4.3.1 (Mass.

Cont. Legal Educ. 2013). Instructions published in the

various editions of the Massachusetts Superior Court

Criminal Practice Jury Instructions can be a useful

resource, but not all of them have been reviewed or

approved by our courts. Contrast Model Jury Instructions

on Homicide (2018) (approved and recommended by

Supreme Judicial Court).

**1139 In Dung Van Tran, 463 Mass. at 12, 27,972 N.E.2d

1, the defendant was charged with arson after he poured

gasoline in such a manner that it landed on himself and two

others, as well as on the floor of the apartment, and then

ignited it. He argued that the evidence established, at most,

that he intended to burn himself and that the resulting burning

of the apartment was accidental. Id. at 26, 972 N.E.2d 1.

This court disagreed and concluded that the evidence was

sufficient for the jury to “have found, consistent with the

[trial] judge's supplemental instruction on [wilfulness], that

the defendant intended not *118 only his conduct, i.e.,

lighting the fire, but also the resulting harm, which ... was

the burning of the apartment” (quotations omitted). Id. at 27,

972 N.E.2d 1. Although the supplemental instruction clearly

required a finding of specific intent, Dung Van Tran was a

sufficiency of the evidence case. It did not involve a challenge

to the propriety of the supplemental instruction or consider

whether proof of specific intent is required for a conviction

of arson.

Ultimately, although “ ‘willful’ may have several meanings

when read in isolation, its meaning in any particular statute

may be determined from examining the act itself as well as the

larger statutory scheme.” Franklin Office Park Realty Corp.

v. Commissioner of the Dep't of Envtl, Protection, 466 Mass.

454, 463, 995 N.E.2d 785 (2013). Accordingly, we view the

term “wilfully” in the context of the broader phrase “wilfully

and maliciously,” as used historically in the crime of arson.

“At common law the offence of arson consisted of the wilful

and malicious burning of the house of another” (citation

omitted). Commonwealth v. Lamothe, 343 Mass. 417, 419,

179 N.E.2d 245 (1961). See A. F. Curtis, A Treatise on the

Law of Arson § 57, at 71 (1936) (Curtis); W. R. LaFave,

Criminal Law § 21.3, at 1365 (6th ed. 2017). The same

common-law language -- wilfully and maliciously -- appears

in the current version of § 1, enacted in 1932. See St.

1932, c. 192, § 1. '2 The same language also appeared in

every predecessor version of § 1, dating back more than two

hundred years. See, e.g., St. 1784, c. 58, § 1; RS. (1836) c.

126, §§ 1-2; Pub. St. 1882 c. 203, § 1; Rev. L. c. 208, § 1

(1902); G. L. c. 266, § 1 (1921); G. L. (Ter. Ed.) c. 266, § 1.

Quite simply, the crime of arson in Massachusetts, including

the requirement that a defendant have acted “wilfully and

maliciously,” has deep roots, and, as this court has previously

acknowledged, to ascertain the meaning of the words in

§ 1, “we must tum to the common law, for the statute

was undoubtedly drawn against that background.” Lamothe,

343 Mass. at 419, 179 N.E.2d 245). See Commonwealth

v. DeCicco, 44 Mass. App. Ct. 111, 127, 688 N.E.2d 1010

(1998) (common-law understanding **1140 of *119 arson

was “engrafted in § 1”). 13

12 The only amendments to G. L. c. 266, § 1, since 1932

have been for purposes of providing alternatives to the

punishment of not more than twenty years in State prison.

See St. 1948, c. 43, § 1 (“by imprisonment in a jail or

house of correction for not more than two and one half

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019)

121 N.E.3d 1130 OO a

years”); St. 1974, c. 281 (“or by a fine of not more than

ten thousand dollars, or by such fine and imprisonment”).

The current statute “differs from common law arson

in two respects. Firstly, the statute includes within its

terms the burning of one's own dwelling. Secondly, one

building containing many dwelling units falls within

the definition of a ‘dwelling house’ in § 1, whereas at

common law, each unit is a separate dwelling” (citations

omitted). Commonwealth v. DeCicco, 44 Mass. App. Ct.

111, 127, 688 N.E.2d 1010 (1998).

Common-law arson has been widely acknowledged as a crime

of general intent. See, e.g., People v. Nowack, 462 Mich. 392,

406, 614 N.W.2d 78 (2000) (“Common-law arson is a general

intent crime’); Linehan v. State, 476 So.2d 1262, 1265 (Fla.

1985) (same); Veverka v. Cash, 318 N.W.2d 447, 450 (Iowa

1982) (same); United States v. Doe, 136 F.3d 631, 635 (9th

Cir. 1998), cert. denied, 526 U.S. 1041, 119 S.Ct. 1338,

143 L.Ed.2d 502 (1999) (same); United States v. Acevedo-

Nelez, 17 M.J. 1, 2-3 (C.M.A. 1983) (same). See also D.A.

Dripps, R.M. Boyce & R.M. Perkins, Criminal Law and

Procedure, at 383 (13th ed. 2017) (“if without justification,

excuse or mitigation, one sets a fire which obviously creates

an unreasonable fire hazard for another's dwelling, which

is actually burned thereby, the result is. common-law arson

even if this was not an intended consequence”); W.R. LaFave,

Criminal Law, supra at § 21.3(e), at 1375-1376 (commonlaw arson involved either “intentional[ly] burning” dwelling

house of another or “intentionally doing an act [e.g., starting

a fire or burning his own premises] under circumstances in

which the act created a very high risk of burning the dwelling

house of another, where the actor knew of that risk but

nonetheless engaged in the risk-taking act”); R.M. Perkins,

Criminal Law, at 175 (1957) (state of mind required for

common-law arson, “assuming ... there are no circumstances

of justification, excuse or mitigation, is either an intent to

burn the dwelling of another, or an act done under such

circumstances that there is obviously a plain and strong

likelihood of such a burning”).

In other jurisdictions where the “wilful and malicious”

language was adopted by statute or code, courts have

uniformly followed the common law and interpreted the

language as setting forth a general intent crime. This is true

at the State level, see, e.g., State v. Scott, 118 Ariz. 383, 385,

576 P.2d 1383 (Ct. App. 1978); People v. Atkins, 25 Cal. 4th

76, 84-85, 104 Cal.Rptr.2d 738, 18 P.3d 660 (2001); Linehan,

476 So.2d at 1264-1265, State v. O'Farrell, 355 A.2d 396, 398

(Me. 1976); State v. Doyon, 416 A.2d 130, 135 (R.I. 1980); at

the federal level, see Doe, 136 F.3d at 634-635 (interpreting

18 U.S.C. § 81); *120 United States v. M.W., 890 F.2d 239,

240-241 (10th Cir. 1989) (same); and even under the code of

military justice, see Acevedo-Velez, 17 M.J. at 7 (interpreting

art. 126 of Uniform Code of Military Justice).

By contrast, in jurisdictions where arson has been declared

a specific intent crime, the statutes have been drafted or

amended to achieve that end. For example, in Wyoming,

the statute was drafted to provide that a “person is guilty

of first-degree arson if he maliciously starts a fire or causes

an explosion with intent to destroy or damage an occupied

Structure” (emphasis added). Keats v. State, 64 P.3d 104,

107 (Wyo. 2003), quoting Wyo. Stat. Ann. § 6-3-101(a).

There, the court held that the statute “can be categorized

as a ‘specific intent’ crime.” Id. In Maryland, the statute is

still drafted in a form akin to that of the common law, see

Md. Code Ann., Criminal Law, § 6-102 (LexisNexis 2012),

but the Legislature has expressly defined “maliciously” as

“acting with intent to harm a person or property,” id. at §

6-101(c), and “willfully” as “acting intentionally, knowingly,

**1141 and purposefully,” id. at § 6-101(e). See Holbrook

V. State, 364 Md. 354, 371, 772 A.2d 1240 (2001) (given “the

plain language used to define ‘maliciously’ and ‘wilfully,’

we conclude that the Legislature intended for arson to be a

specific intent crime”). Contrast DeBettencourt v. State, 48

Md. App. 522, 523-524, 532, 428 A.2d 479 (Md. Ct. Spec.

App. 1981), cert. denied, 290 Md. 713 (1981) (prior version of

Maryland arson statute containing no definitions of “wilfully”

and “maliciously,” followed common law intent).

Here, the Legislature has given no indication in more than

two hundred years that it intended to deviate from the

common-law general intent requirement for the crime of

arson. Moreover, if the Legislature had intended to require

specific intent, it would have used more explicit language

as it has in other criminal statutes, including a provision

involving burning of insured property. See G. L. c. 266, §

10 (Whoever, wilfully and with intent to defraud or injure

the insurer, sets fire to ...” [emphasis added] ); G. L. c. 265,

§ 18 (b) (“Whoever, being armed with a dangerous weapon,

assaults another with intent to rob or murder ...” [emphasis

added] ). We conclude, therefore, that proof of general intent

with malice is all that is required.

To be sure, § 1 is still far from being some form of strict

liability offense. Requiring malice “ensures that the act is

done with a design to do an intentional wrongful act without

any legal justification, excuse or claim of right... [The] willful

and malice *121 requirement ensures that the setting of the

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019)

121N.E.3d 1130 Be

fire must be a deliberate and intentional act, as distinguished

from an accidental or unintentional ignition or act of setting a

fire” (quotations and citations omitted). Atkins, 25 Cal. 4th at

88, 104 Cal.Rptr.2d 738, 18 P.3d 660. See Commonwealth v.

Ely, 388 Mass. 69, 74, 444 N.E.2d 1276 (1983) (“requirement

that the act be wilful eliminate[s] accidental or negligent

fires” from reach of statute). See also Curtis, supra at § 2,

at 3 (throughout arson’s long history “distinction between

intentional and accidental fires has always been maintained,

the latter never forming a basis for a criminal prosecution”).

Moreover, we conclude that, even in the absence of proof that

a defendant acted purposefully to set fire to or burn some

portion of a dwelling house, the intent element of § 1 still

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. See, e.g., Atkins, 25 Cal. 4th at

89, 104 Cal.Rptr.2d 738, 18 P.3d 660 (incendiary act must be

committed “under such circumstances that the direct, natural,

and highly probable consequences would be the burning of

the relevant structure”); Nowack, 462 Mich. at 408-409, 614

N.W.2d 78 (act done in “circumstances where a plain and

strong likelihood of [the burning ofa dwelling house] exists”).

2. Sufficiency of the evidence. In this case, we conclude that

the evidence was overwhelming that the defendant acted with

general intent and malice for purposes of arson under G. L. c.

266, § 1, when she set fire to a bag of clothes located on the

floor inside an apartment for the purpose of exacting revenge

against her boyfriend. Because the defendant described her

conduct and motivation to more than one person immediately

after she left the apartment building, we can say for certain

that the fire was not the product of an accident or negligence.

It was set intentionally, without justification or excuse, and

for an unlawful or injurious purpose or motive. Moreover,

a reasonable **1142 person, under those circumstances,

would have known that there was a plain and strong likelihood

that some portion of the apartment building would be set on

fire or burned.

To the defendant's benefit, the jury were not instructed that

arson was a general intent crime. Instead, the trial judge

instructed that there were two alternative theories by which

the Commonwealth could prove that the defendant acted

with specific intent for purposes of satisfying the mens rea

requirement for arson under G. L. c. 266, § 1, which we shall

refer to as the *122 specific intent theory and the failure to

extinguish or report theory.

The defendant argues that, even viewed in the light most

favorable to the Commonwealth, see Commonwealth v.

Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979),

the evidence was insufficient to establish that she had the

specific intent to burn the apartment building, not just

Brewer's clothing. We disagree.

The arson statute, by its plain terms, does not require

extensive damage to the dwelling house -- e.g., that it be

“consumed” or “destroyed” by fire. See Commonwealth v.

Tucker, 110 Mass. 403, 404 (1872). It requires proof only

that some portion of the dwelling house actually was on fire

or burned. Id. The mere charring of some portion of the

dwelling house is sufficient. See Commonwealth v. McIntosh,

10 Mass. App. Ct. 924, 925, 412 N.E.2d 917 (1980). Although

specific intent requires proof that the defendant intended her

conduct and its consequences, it does not require proof that

the consequences she intended were as extensive as those

realized (i.e., that the apartment building be consumed or

destroyed by the fire). Rather, specific intent requires only

that the consequences she intended are among those covered

by the statute (i.e., that some portion of the apartment building

actually be set on fire or burned). 14 See Gunter, 427 Mass.

at 269 n.12, 692 N.E.2d 515 (“in a specific intent crime,

the defendant must intend that the particular consequences

constituting the crime follow from his act or conduct”). See

also Curtis, supra at § 62, at 78-79 (“not necessary that

the burning effected correspond precisely with the intent or

design of the accused”).

14 The trial judge instructed the jury: “A person acts

willfully 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.”

The evidence, viewed in the light most favorable to the

Commonwealth, established that the defendant, in a fit of

anger, intentionally lit a piece of paper on fire and threw

it on a pile of Brewer's clothes that were located on the

floor inside the apartment. A reasonable jury could infer

from this evidence alone that the defendant was aware that

her actions would result in the burning of not only Brewer's

clothing, but also some portion of the apartment building.

See Dung Van Tran, 463 Mass. at 27, 972 N.E.2d 1 (where

defendant poured gasoline in such manner that it got not

only on himself but also on other people and on living room

floor of apartment, jury could reasonably infer he was aware

when he ignited it that he would do more than simply light

himself on *123 fire); Commonwealth v. Martinez, 393

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019)

121 N.E.3d 1130 a a

Mass. 612, 613-615, 473 N.E.2d 167 (1985) (defendant who

lit newspaper on fire inside tenement building and threw it

at another occupant, thereby igniting fire, guilty of arson);

Commonwealth v. Roy, 2 Mass. App. Ct. 14, 16, 307 N.E.2d

851 (1974) (defendant who lit apartment curtains on fire after

fighting with roommate, resulting in fire, guilty of arson).

**1143 After setting the fire, the defendant left without

attempting to extinguish the fire or call for help. The

evidence, when viewed in the light most favorable to the

Commonwealth, further established that she locked the

exterior door of the building as she left, thereby making it

more difficult for anyone to escape or to enter and attempt to

extinguish the fire. Therefore, the jury reasonably could have

inferred that the defendant acted with the requisite specific

intent at the time she set the fire. See, e.g., Dung Van Tran, 463

Mass. at 27-28, 972 N.E.2d 1 (defendant's failure to attempt

to put out fire or to sound alarm was further proof of his intent

to burn apartment); Commonwealth v. Cavedon, 301 Mass.

307, 314-315, 17 N.E.2d 183 (1938) (jury could reasonably

infer defendants intended to commit arson from their failure

to make any effort to extinguish fire or sound alarm).

“We are mindful that in arson cases the Commonwealth

often can prove guilt only by a web of circumstantial

evidence that entwines the suspect in guilt beyond a

reasonable doubt” (citation and quotation omitted). Choy v.

Commonwealth, 456 Mass. 146, 150, 927 N.E.2d 970, cert.

denied, 562 U.S. 986, 131 S.Ct. 425, 178 L.Ed.2d 330 (2010).

Here, that web was sufficiently woven.

3. Instruction on failure to extinguish or report fire. Before

trial, the defendant filed a motion for bill of particulars to

determine whether the Commonwealth's theory of liability

was based on her having set the fire, having failed to

extinguish or warn of the fire after she started it, or both. At

the subsequent hearing, the Commonwealth represented that

its theory was based on the setting of the fire, not the failure

to act after the fire was set. Based 6n that representation,

the motion judge, who was not the trial judge, endorsed

the motion as follows: “Upon hearing, the Commonwealth

representing that it will proceed on a theory of 2nd degree

felony murder, the underlying felony being the crime of arson

by intentionally setting fire to or within an occupied dwelling,

further particulars are not required.”

At trial, the Commonwealth largely abided by its prior

representation. During the trial, the Commonwealth filed

a proposed jury instruction on arson that focused on the

defendant's intent at *124 the time the fire was set and

made no mention of failing to extinguish or report a fire.

Later, it filed a final set of requests proposing essentially

the same instruction. While arguing in opposition to the

defendant's motion for a required finding of not guilty, the

Commonwealth restated that the theory of liability was that

the defendant intentionally set the apartment building on fire,

and that any evidence that she failed to extinguish or report

the fire was relevant insofar as it reflected on her intent at the

time she set the fire. !°

15 The Commonwealth took the same position at a pretrial

motion hearing, when it agreed with the judge that it was

only the defendant's intent “at the time of ignition” (i.e.,

“when lighting that match”) that was relevant, although

her subsequent acts or omissions could be considered in

assessing her intent at the time of ignition.

However, during the charge conference, the trial judge,

without prompting from the Commonwealth, suggested she

was inclined based on the evidence to provide the jury with

a supplemental instruction that, in its final form, stated as

follows:

“If an act is accidental, it is not a crime; that is, the

requirement of willfulness means that accidentally or

negligently caused burnings are not arson. However a

person may have the required intent for arson if he or she

negligently or accidentally causes a fire and then willfully

**1144 and maliciously makes no attempt to extinguish it

or to report it. In that circumstance, the necessary criminal

state of mind for arson, willfulness and maliciousness, may

3 16

be formed after the fire starts.

The Commonwealth agreed and requested that the

supplemental instruction be given. The defendant objected,

arguing that the Commonwealth had waived the right to

seek such an instruction, and that, in any event, there was

insufficient evidence to justify providing it. Although the

Commonwealth did not specifically argue in closing that the

defendant's failure to report or extinguish the fire constituted

arson, the judge provided the supplemental instruction. For

the first time, the defendant argues that the supplemental

instruction was improper because G. L. c. 266, § 1, does not

criminalize the wilful and malicious failure to extinguish or

report an accidentally or negligently set fire. We agree.

The supplemental instruction was adapted from § 4.3.3

of the Massachusetts Superior Court Criminal Practice

Jury Instructions, supra.

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019)

121N.E.3d1130 °° OO

The statute, in pertinent part, makes it unlawful for a person to

“wilfully and maliciously set[ ] fire to, burn[ ], or cause[ ] to

be *125 bummed... a dwelling house.” G. L. c. 266, § 1. There

is nothing in this plain language that suggests that a person is

culpable for accidental or negligent conduct. See Mogelinski,

466 Mass. at 633, 1 N.E.3d 237 (court looks to plain language

of statute to ascertain legislative intent). Indeed, accidentally

or negligently set fires cannot form the basis for arson under

G. L. c. 266, § 1. Moreover, there is nothing on the face of

the arson statute to suggest that a person is liable for failing

to act after accidentally or negligently setting fire to, burning,

or causing to be burned a dwelling house. Therefore, the

supplemental instruction was erroneous. !7

In certain circumstances, the defendant's actions may

constitute wanton or reckless conduct rising to the level

of involuntary manslaughter. See infra. Having returned

a verdict of murder in the second degree on a theory of

felony-murder based on the underlying crime of arson,

however, the jury here never reached this potential lesser

included offense.

The Commonwealth suggests that the statute criminalizes

the wilful and malicious failure to extinguish or report an

accidentally or negligently set fire through the inclusion of

the words “burns” and “‘causes to be bumed.” However, the

Commonwealth does not direct us to any authority that has

interpreted those words in that fashion.

Moreover, had the Legislature intended for the statute to cover

acts or omissions committed after a fire is accidentally or

negligently set, it is evident from the language used in other

arson-related statutes that it knew how to do so. See G. L.

c. 266, § 7 (“Whoever by wantonly or recklessly setting fire

to any material, or by increasing a fire already set, causes

injury to, or the destruction of, any growing or standing wood

of another shall be punished”); G. L. c. 266, § 8 (“Whoever,

not being a tenant thereof, sets or increases a fire upon land

of another whereby the property of another is injured, or

whoever negligently or wilfully suffers any fire upon his own

land to extend beyond the limits thereof whereby the woods

or property of another are injured, shall be punished”); G.

L. c. 266, § 9 (“Whoever ... sets a fire on land which is

not owned or controlled by him and before leaving the same

neglects to entirely extinguish such fire, or whoever wilfully

or negligently sets a fire on land which is not owned or

controlled by him whereby property is endangered or injured,

or whoever wilfully or negligently **1145 suffers a fire

upon his own land to escape beyond the limits thereof to the

injury of another, shall be punished”);. Notably, the relevant

language in each of these statutes was in effect when § 1 was

amended in 1932 to provide *126 as it does today. See, e.g.,

G. L. c. 266, §§ 7, 8, as amended through St. 1912, c. 419, §§

1, 2; G. L. c. 266, § 9, inserted by St. 1897, c. 254, §§ 1, 2.

Furthermore, even if we were to conclude that the words

“bums” and “causes to be burned” are ambiguous, the

rule of lenity applies to a criminal statute and “requires

that the defendant receive the benefit of the ambiguity.”

Commonwealth v. Dayton, 477 Mass. 224, 226, 75 N.E.3d

600 (2017).

The Commonwealth cites a trio of cases, two of which appear

to have served as the impetus for the supplemental instruction

at issue. Given the plain language of G. L. c. 266, § 1, the

cases do not advance the Commonwealth's cause.

In Commonwealth v. Cali, 247 Mass. 20, 141 N.E. 510

(1923), the defendant was not charged with arson but

with burning insured property with intent to defraud. At

that time, G. L. c. 266, § 10, provided, in pertinent part,

that “[w]hoever, with intent to injure the insurer, burns a

building ... belonging to himself or another, and which [is}

at the time insured against loss or damage by fire, shall be

punished by imprisonment in the state prison for not more

than twenty years.” '* See G. L. c. 266, § 10 (1923). Cali

appealed and claimed that, at most, the evidence established

that the fire was accidental. Cali, supra at 247 Mass. at

25, 141 N.E. 510. The court disagreed, stating, “[I]f he

merely neglected in the emergency of the moment to act, his

negligence was not proof of a purpose to commit the crime

charged. The intention, however, to injure could be formed

after as well as before the fire started.... [H]is immediate

departure from the premises ... , without giving any alarm,

warranted the inference of a criminal intent or state of mind,

that the building should be consumed.” Id. The court also

stated that there was no error in the jury instruction:

“Ifa man does start an accidental fire what is his conduct

in regard to it? A question might arise -- as if after the fire

has started accidentally, and he then has it within his power

and ability to extinguish the fire and he realizes and knows

that he can, and then he forms and entertains an intent to

injure. *127 an insurance company, he can be guilty of

this offense. It is not necessary that the intent be formed

before the fire is started.” (Emphasis added)

Id. at 24-25. This holding does not aid the Commonwealth's

argument because G. L. c. 266, § 10, unlike G. L. c. 266,

§ 1, did not require that the defendant act “wilfully and

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019)

121N.E.3d1130 OO -

maliciously.” Moreover, the intent element required under §

10, unlike under § 1, was the intent to injure an insurance

company, i.e., an intent that theoretically could be formed

after the fire was accidentally set.

General Laws c. 266, § 10, was subsequently amended,

see St. 1932, c. 192, § 7, and now provides, in pertinent

part: “Whoever, wilfully and with intent to defraud or

injure the insurer, sets fire to, or attempts to set fire to, or

whoever causes to be bumed ... a building ... belonging

to himself or another, and which [is] at the time insured

against loss or damage by fire, shall be punished ....”

In Commonwealth v. Glenn, 23 Mass. App. Ct. 440, 443-445,

503 N.E.2d 39 (1987), the defendant appealed from his

conviction under G. L. c. 266, § 1, arguing that the jury

were erroneously provided with a modified version of the

jury instruction from the Cali case recited supra The Appeals

Court agreed, concluding that the modified instruction “did

not follow the **1146 language in the Cali case [and] failed

to make clear that either the setting of the fire or the failure

to extinguish or report it had to be intentional and not merely

negligent.” Id. at 444, 503 N.E.2d 39. In Glenn, however, the

defendant did not argue, nor did the court discuss, whether

the Cali instruction was appropriate in a case charging arson

under G. L. c. 266, § 1.

Finally, in Commonwealth v. Levesque, 436 Mass. 443,

444-447, 766 N.E.2d 50 (2002), this court considered whether

the defendants, who had started a fire in an abandoned

warehouse by accidentally knocking over a lit candle, could

face involuntary manslaughter charges in connection with the

death of several firefighters based on the defendants’ failure

to take adequate steps either to control or report the fire. After

noting that “[iJt is true that, in general, one does not have a

duty to take affirmative action,” id. at 449, 766 N.E.2d 50, we

concluded that “where one's actions create a life-threatening

risk to another, there is a duty to take reasonable steps to

alleviate the risk. The reckless failure to fulfil this duty can

result in a charge of manslaughter.” Id. at 450, 766 N.E.2d

50. See id. at 453, 766 N.E.2d 50 (to prove recklessness there

need only be proof “that the defendant's choice not to report

the fire was intentional, not that the fire was intentionally

set”).

In Levesque, however, we were interpreting the crime of

involuntary manslaughter, the elements of which are derived

from the common law. Id. at 447-448, 766 N.E.2d 50. The

defendants were not charged with arson, which is defined by

statute. And although G. L. c. 266, § 1, has its roots in the

10a

common law and we look to *128 that law when necessary

to ascertain the meaning of its language, the plain language

of the statute still prevails.

Thus, it was error to provide the supplemental instruction on

arson.

We next consider whether, as the defendant argues and dissent

believes, the error in the jury instruction requires a new trial.

Although the defendant objected at trial to the supplemental

instruction, she did not do so on the grounds raised here. “It

is a fundamental rule of practice that where a party alleges

error in a charge he must bring the alleged error to the

attention of the judge in specific terms in order to give the

judge an opportunity to rectify the error, if any” (citation

omitted). Commonwealth v. Torres, 420 Mass. 479, 482-483,

651 N.E.2d 360 (1995). See Mass. R. Crim. P. 24 (b), 378

Mass. 895 (1979) (“No party may assign as error the giving

[of] ... an instruction unless he objects thereto before the

Jury retires to consider its verdict, specifying the matter to

which he objects and the grounds of his objection”). The

objection, therefore, was not preserved -- the judge was not

alerted to the erroneousness of the jury instruction -- and we

review the error for a substantial risk of miscarriage of justice.

See Commonwealth v. Richardson, 479 Mass. 344, 353, 94

N.E.3d 819 (2018).

“An error creates a substantial risk of a miscarriage of justice

unless we are persuaded that it did not materially influence

the guilty verdict... In applying this standard, we analyze

the potential impact of the error on the verdict, and review

the record to determine the strength of the Commonwealth's

case, absent the improper evidence” (quotations, alteration,

and citation omitted). Id. at 354-355, 94 N.E.3d 819. Here,

the Commonwealth, despite agreeing with the trial judge's

Suggestion that the supplemental instruction was warranted

and should be given, never argued before the jury that the

defendant accidentally or negligently set the fire or that

she formed the requisite intent after having set the fire.

The Commonwealth consistently argued that **1147 the

defendant intended to burn the apartment building at the time

she set the fire, and, as we have concluded, that argument had

compelling support in the evidence. In addition, the evidence

regarding the defendant's acts or omissions after she set the

fire was relevant and admissible as to both the specific intent

theory of arson and the offense of involuntary manslaughter.

We are persuaded, therefore, that the error did not materially

influence the guilty verdict.

The defendant also argues that it was improper to provide

the supplemental instruction because the Commonwealth

waived the *129 right to pursue the alternative failure

to extinguish or report theory by its representation at the

hearing on the motion for bill of particulars. Specifically,

the defendant suggests that the Commonwealth's sudden

reversal, in response to the trial judge's sua sponte suggestion

that the supplemental instruction was warranted, prejudiced

the preparation of her defense because had she known the

alternative theory would be pursued she could have presented

additional evidence to put her acts or omissions following the

setting of the fire in a different (i.e., less inculpatory) light.

The defendant further argues that she was prejudiced by the

last-minute revival of the alternative theory because it opened

the door for the jury to consider her acts or omissions after

she set the fire that were otherwise irrelevant.

Because evidence of the defendant's acts or omissions

following the setting of the fire was relevant and admissible

with respect to both the specific intent theory of arson

and the offense of involuntary manslaughter, the defendant

had notice of and reason to offer additional evidence on

those issues before the Commonwealth reversed its position

regarding the alternative theory. Therefore, the jury did not

have before them any facts that were otherwise inadmissible.

The defendant's claims of prejudice, therefore, miss the mark.

Further, even if we were to agree with the dissent and deem

the defendant's objection to the supplemental instruction

to have been preserved by her objection on the basis of

waiver, we still conclude that the error in providing the

instruction was harmless. See Commonwealth v. Flebotte,

417 Mass. 348, 353, 630 N.E.2d 265 (1994) (error harmless

if reviewing court “sure that [it] did not influence the jury, or

had but a slight effect” [citation omitted] ). Although there

was a variance between the Commonwealth's representation

at the bill of particulars hearing and its response to the

trial judge's sua sponte suggestion that the supplemental

instruction was warranted, there was no variance between the

Commonwealth's representations to the motion judge and the

evidence it offered or the arguments it made to the jury at

trial. As detailed supra, the Commonwealth's argument to the

jury, as it had previewed at the motion hearing, was that the

defendant fully intended to burn a portion of the apartment

building when she ignited a bag of Brewer's clothes. The

Commonwealth never argued that the fire was accidentally

or negligently set. Nor could the jury have reached such a

conclusion based on any reasonable view of the evidence. But

for the reference in the instructions to the failure to *130

lla

report theory, therefore, the focus of the trial was where it

should have been and, given that the arson charge was tried

strictly on a specific intent basis, was skewed in favor of the

defendant.

4. Other issues. Because of our decision, we address the other

issues raised by the defendant only briefly. 19

19 We need not address the defendant's arguments that

(1) the evidence was insufficient to establish that she

wilfully and maliciously failed to extinguish or report the

fire; (2) a new trial is required even if the evidence was

sufficient to establish one of the two “theories” of arson;

and (3) the jury should have been instructed that they had

to reach a unanimous decision on the underlying “theory”

to convict her under § 1.

**1148 a. Inherently dangerous felony. In her instructions

to the jury on the felony-murder in the second degree charge,

the trial judge indicated that the third element that the

Commonwealth had to prove was that the underlying felony

was inherently dangerous or that the defendant acted with

a conscious disregard for the risk to human life. Over the

defendant's objection, the judge further instructed that, as a

matter of law, arson is inherently dangerous to human life. The

defendant argues that this was error and that the jury should

have decided whether, in this case, she acted with a conscious

disregard for the risk to human life.

In Apprendi v. New Jersey, 530 U.S. 466, 490, 120S.Ct. 2348,

147 L.Ed.2d 435 (2000), the United States Supreme Court

held that the right to due process under the Fifth Amendment

to the United States Constitution and the right to notice and

a jury trial guaranteed by the due process clause and the

Sixth Amendment to the United States Constitution, “[o]ther

than the fact ofa prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable

doubt.” Id. at 476 & 490, 120 S.Ct. 2348. Here, the defendant

argues that the use of arson as the predicate felony for the

conviction of murder in the second degree had the effect for

her of increasing the penalty for arson from its maximum of

twenty years in State prison, see G. L. c. 266, § 1, to one

of imprisonment in State prison for life, with eligibility for

parole after fifteen years, see G. L. c. 265, § 2, and G. L.

c. 127, § 133A, 2° based on the determination whether she

acted with a conscious disregard for *131 the risk to human

life. Therefore, she argues that, under Apprendi, the jury must

determine if she acted with a conscious disregard for the risk

to human life.

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019)

121 N.E.3d 1130 a SO

The applicable statutes were amended after the date

the offense was committed here and now provide for

life imprisonment, with eligibility for parole in not less

than fifteen years nor more than twenty-five years, for

a murder in the second degree conviction. See G. L. c.

265, § 2 (c), as inserted by St. 2014, c. 189, § 5; G. L.

c. 127, § 133A, as amended through St. 2012, c. 192, §

37; and G. L. c. 279, § 24, as amended through St. 2012,

c. 192, § 46.

The argument fails because it is well settled that the question

whether a felony is inherently dangerous to human life

is one of law. See Commonwealth v. Wadlington, 467

Mass. 192, 208, 4 N.E.3d 296 (2014). Moreover, arson

has been identified by this court on numerous occasions as

inherently dangerous as a matter of law. See Commonwealth

v. Holley, 478 Mass. 508, 528, 87 N.E.3d 77 (2017);

Commonwealth v. Bell, 460 Mass. 294, 308, 951 N.E.2d 35

(2011); Commonwealth v. Mello, 420 Mass. 375, 391, 649

N.E.2d 1106 (1995), citing Commonwealth v. Matchett, 386

Mass. 492, 505 n.15, 436 N.E.2d 400 (1982). ?! Contrast

Commonwealth v. Tevenal, 401 Mass. 225, 230, 515 N.E.2d

1191 (1987) (only where judge determines that **1149

felony is not inherently dangerous does it become factual

question whether defendant acted in conscious disregard for

risk to human life).

21 Although this court has previously stated that “[w]e

have never delineated exactly which felonies give

rise to application of the [inherently dangerous] rule,”

Commonwealth v. Matchett, 386 Mass. 492, 505, 436

N.E.2d 400 (1982), we meant that we have never

compiled an exhaustive list, not that we have never

identified any felonies as inherently dangerous. Indeed,

in Matchett, supra at 505 n.15, 436 N.E.2d 400, we listed

inherently dangerous common-law felonies, including

arson.

b. Disproportionality in sentencing. The defendant further

argues that her sentence on the conviction of murder in the

second degree on a theory of felony-murder violates the

requirement of proportionality in sentencing under the Eighth

Amendment to the United States Constitution and art. 26 of

Massachusetts Declaration of Rights. She argues that, to be

constitutionally firm, the intent element for felony-murder

in the second degree should not have been constructively

implied from the arson conviction. 22 Rather, the jury should

have determined whether she acted with a conscious disregard

for the risk to human life.

12a

The present case went to trial before this court, in

Commonwealth v. Brown, 477 Mass. 805, 807, 81

N.E.3d 1173 (2017), cert. denied, —- U.S. ——,

139 S.Ct. 54, 202 L.Ed.2d 41 (2018), prospectively

abolished the concept of constructive malice, which in

tum eliminated our common-law felony-murder rule as

an independent theory of murder. Id. at 832, 81 N.E.3d

1173 (Gants, C.J., concurring) (“sole remaining function

of felony-murder [is] to elevate what would otherwise be

murder in the second degree to murder in the first degree

where the killing occurs during the commission of a life

felony”).

“[A] heavy burden is on the sentenced defendant to establish

that the punishment is disproportionate to the offense for

which [s]he was convicted... It must be so disproportionate

to the crime that it shocks the conscience and offends

fundamental notions *132 of human dignity” (quotations

and citations omitted). Commonwealth v. Alvarez, 413 Mass.

224, 233, 596 N.E.2d 325 (1992). In making this assessment,

“we examine three objective considerations: (1) the nature

of the offender and offense in light of the degree of harm to

society; (2) sentencing provisions in other jurisdictions for

similar offenses; and (3) sentences for more severe offenses

within the Commonwealth.” Id. at 233-234, 596 N.E.2d 325.

Arson of a dwelling place, especially when committed by an

adult, is, as this case confirms, “a heinous, life-threatening

crime.” DeCicco, 44 Mass. App. Ct. at 127, 688 N.E.2d

1010. In some other jurisdictions, causing another person's

death in the course of committing arson is punished more

harshly than in Massachusetts. > The sentence for the more

serious offense of murder in the first degree in Massachusetts,

meanwhile, is life imprisonment with no eligibility for parole.

G. L. c. 265, § 2 (a). Thus, a life sentence, with parole

eligibility after fifteen years, for causing death in the course

of the commission of arson, does not shock the conscience or

offend fundamental notions of human dignity. 24

23 See, e.g., Conn. Gen. Stat. Ann. § 53a-54d (West, Supp.

2018) (life with no eligibility for parole); Mich. Comp.

Laws § 750.316(1)(b) (Supp. 2018) (same); N.C. Gen.

Stat. § 14-17(a) (2017) (death or life with no eligibility

for parole); Or. Rev. Stat. § 163.115(1)(b)(A) and (5)(a),

(b) (2017) (life with no eligibility for parole until after

twenty-five years).

24 The defendant also argues that the trial judge's ruling that,

as a matter of law, arson is inherently dangerous deprived

the defendant of her only defense to the felony-murder

charge, i.e., that her low cognitive functioning and PTSD

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019)

121 N.E.3d 1130 ;

affected her capacity to consciously disregard the risk to

human life. In so doing, she asks us to ignore the defenses

she asserted to the predicate charge of arson, which also

served as defenses to the felony-murder charge. This, we

cannot do.

c. Instructions to the grand jury. “Generally speaking, the

Commonwealth is not required to provide legal instructions

on the elements of an offense for which it seeks an

indictment.” **1150 Commonwealth v. Rex, 469 Mass.

36, 41 n.10, 11 N.E.3d 1060 (2014). We have, however,

Tecognized two limited exceptions to this rule. First, such

an instruction should be provided where the grand jury

requests it. See Commonwealth v. Noble, 429 Mass. 44,

48, 707 N.E.2d 819 (1999). Second, where a juvenile is

accused of murder and there is substantial evidence of

mitigating circumstances, the grand jury must be instructed

on the elements of murder and mitigating circumstances and

defenses. See Commonwealth v. Walezak, 463 Mass. 808,

810, 979 N.E.2d 732 (2012). 25 The defendant invites us to

create another exception for cases like this one involving

murder and arson *133 because of the severity of the

potential punishment involved and concern over whether

a lay grand juror could possibly understand the nature

of the evidence required to establish probable cause for

such “complex” offenses. We decline to create such an

exception. 26

Our committee on grand jury proceedings recently

“best

practices,” including on issues such as when grand jurors

submitted a report recommending various

should be instructed on defenses to the crime or on

less serious offenses than the most serious potential

charge and when and how grand jurors should be

instructed on the law. See Supreme Judicial Court

Committee on Grand Jury Proceedings, Final Report to

the Justices (June 2018). See also Supreme Judicial Court

Press Release, Committee on Grand Jury Proceedings

Proposes Best Practices in Grand Jury Proceedings (June

27, 2018).

26 The Commonwealth suggests that it is generally the

practice in Suffolk County to instruct the grand jury on

the elements of offenses, although it is not recorded. A

transcript from a recording in this case reflects that the

Commonwealth provided the grand jury with the relevant

language for arson from G. L. c. 266, § 1.

Judgments affirmed.

18a

GANTS, C.J. (dissenting in part, with whom Lenk and Budd,

JJ., join).

I concur in parts 1, 2, and 4 of the court's opinion. Further, I

agree with the court that the judge erred by instructing the jury

that “a person may have the required intent for arson if he or

she negligently or accidentally causes a fire and then wilfully

and maliciously makes no attempt to extinguish it or to report

it.” I conclude that the judge's instruction was erroneous for

two reasons: first, because the instruction mischaracterizes

the intent required to prove the crime of arson of a dwelling

house, in violation of G. L. c. 266, § 1; and second, because at

the hearing on the defendant's motion for a bill of particulars,

the Commonwealth told the judge that it was proceeding

solely on the theory that the defendant was guilty of arson

because she intentionally set the fire, not that she failed to act

after the fire was set.

I dissent from the portion of the court's opinion in which

the court concludes that the erroneous jury instruction was

harmless error, where it allowed the jury to convict the

defendant of arson of a dwelling and felony-murder even if

they had a reasonable doubt whether she intended to burn any

part of the building at the moment when she threw a lit piece

of paper on a duffel bag containing her boyfriend's clothes.

I agree with the court that there was sufficient evidence

to permit the jury to find that she had that intent, but I

conclude that the weight of that evidence *134 was far from

overwhelming. The risk that one or more jurors found the

defendant guilty of arson and felony-murder on a theory that

is wrong as a matter of law (and that the Commonwealth

had promised not to pursue) is too significant to permit the

verdicts to stand. Justice requires that the convictions be

vacated, and that the defendant be retried with correct jury

instructions.

The consequence of the judge's erroneous instruction can

only be understood in **1151 the context of the other jury

instructions that she gave. She instructed the jury that the

Commonwealth must prove beyond a reasonable doubt that

“the defendant wilfully and maliciously set fire to or caused

the building to be burned,” and that “[a] person acts wilfully

if she intends both her conduct, for example, lighting a paper,

and the resulting harm, the buming of the building or some

part of it.” The judge further instructed: “Although an act

may be intentional, its consequences may be accidental. An

accident is defined as an unexpected happening in that it

occurs without intention or design on the defendant's part. If

an act is accidental, it is not a crime; that is, the requirement

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019)

121 N.E.3d 1130 a a -

of wilfulness means that accidentally or negligently causing

burnings are not arson.” !

The entirety of the judge's instruction regarding this

element of the offense is set forth below:

“The third element the Commonwealth must prove

beyond a reasonable doubt is the defendant wilfully

and maliciously set fire to or caused the building to be

burned.

“Both wilfulness and malice are required to constitute

the state of mind necessary to commit arson. The word

‘wilfully’ means the act was intentional and by design

rather than an act that was thoughtless or accidental.

A person acts wilfully 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.

“Although an act may be intentional, its consequences

may be accidental. An accident is defined as an

unexpected happening in that it occurs without

intention or design on the defendant's part. If an

act is accidental, it is not a crime; that is, the

requirement of wilfulness means that accidentally or

negligently caused burnings are not arson. However

a person may have the required intent for arson if he

or she negligently or accidentally causes a fire and

then wilfully and maliciously makes no attempt to

extinguish it or to report it. In that circumstance, the

necessary criminal state of mind for arson, wilfulness

and maliciousness, may be formed after the fire starts.

“Now, what is the criminal state of mind necessary

for arson? The Commonwealth must prove beyond

a reasonable doubt not only the defendant acted

intentionally but that she did so maliciously or with

malice. The term ‘malice’ and ‘maliciously’ have

special definitions under the law. Malice characterizes

all acts done with an evil disposition or with a

wrongful and unlawful motive or purpose. It also

includes the wilful doing of an injurious act without

any lawful excuse. Similarly, the failure to report or

extinguish the fire must be as a result of an evil or

wrongful motive or purpose. It is something more

than thoughtlessness or a failure to understand the

consequences that could follow if there is no report or

effort to extinguish it.

“The Commonwealth bears the burden of proving

beyond a reasonable doubt that the defendant acted

wilfully and maliciously as I have defined it for you.

Because this element rests upon proof regarding what

the defendant knew and intended at the time of the acts

in question, you should consider any credible evidence

of mental impairment in determining whether the

Commonwealth has met [its] burden of showing the

14a

defendant here possessed the requisite knowledge and

intent. This is true even if you determine the defendant

is criminally responsible for her conduct. The concept

we are going to discuss later in the instructions.

“Keep in mind it is not up to the defendant to

prove any mental impairment. It is incumbent on the

Commonwealth to rule it out; that is, in the case of

arson, the Commonwealth bears the burden of proving

beyond a reasonable doubt the defendant wilfully and

maliciously set fire to a dwelling or alternatively,

having caused the fire, then wilfully and maliciously

failed to extinguish it or notify others.

“If you conclude after you've considered all the

evidence, including any evidence as to mental

impairment that the Commonwealth has failed to

prove she possessed the requisite intent, then you must

find the defendant not guilty of arson.

“Tf, on the other hand, the Commonwealth has

sustained its burden of proof as to all the elements I've

just described, then you shall find the defendant guilty

of arson.”

*135 The evidence at trial was overwhelming that the

defendant intended her conduct -- because she was angry

with her boyfriend, **1152 she intentionally lit a piece of

paper and threw it on a pile of the boyfriend's clothes in

the apartment they shared. However, the evidence was less

than overwhelming that she intended “the resulting harm, the

burning of the building or some part of it.”

Nothing the defendant said suggested that she intended to

burn any part of the building. In an interview at the Chelsea

police department on January 6, 2011, the video recording of

which was played for the jury at trial, the defendant engaged

in the following exchange with an officer:

Q.: “So did that piece of paper have -- maybe still had a

flame maybe?”

*136 A.: “It probably did that I didn't see, because all I

seen was smoke on it.”

Q.: “Okay. So you drop --”

A.: “T just threw it.”

Her subsequent cellmate testified at trial that the defendant

told her that she lit a notebook, “threw it on his clothes, and

then the fire started.”

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019)

121 N.E.3d 1130 - ; a :

The court concludes that the fact that the outside door to

the building was locked when persons tried to enter the

burning building shows that she affirmatively locked the door

in order to prevent others from putting out the fire, ante at

note 2, which reflects her intent to burn the building, ante at

1134-35, 121 N.E.3d 1130. But, although the evidence was

compelling that the outside door was locked, the evidence was

less compelling that she intended to lock it. The only evidence

suggesting that she intended to lock the door came from the

defendant's boyfriend, who testified:

“She just ran out and she just closed the door.

“

“[W]hen she closed it she locked it.”

When asked, “How do you know she locked it?” the boyfriend

answered:

“Because it doesn't be [sic] locked unless you lock it. You

have to lock it from the inside and she knew I didn't have

no key or nothing to that door, I don't think she did either.”

The testimony at trial indicated that the defendant did not

have a key to the building when she left, so it is unlikely that

she locked the outside door with a key. From the boyfriend's

testimony, one can infer that the door could be locked from

the inside without a key, but there was no evidence at trial

regarding what someone must do to lock the door from the

inside without a key. There was no photograph of the locking

mechanism of the outside door admitted at trial; nor was there

any evidence describing the locking mechanism. Even if we

were to accept the inference from the boyfriend's testimony

that the door typically was unlocked, there was no evidence as

to how frequently (if ever) someone *137 locked the outer

door, thus locking the defendant and her boyfriend out of the

building. Moreover, even if the defendant did intentionally

lock the outside door after she set fire to the clothes, the

televant intent for the crime of arson is her intent at the time

she threw the lit piece of paper, not her intent at the time she

left the building. See Commonwealth v. Peaslee, 177 Mass.

267, 273-274, 59 N.E. 55 (1901) (“If the accused intended

to rely upon his own hands to [set a fire], he must be shown

to have had a present intent to accomplish the crime without

much delay, and to have had this intent at a time and place

where he was able to carry it out”). But as discussed infra, the

judge's erroneous instruction permitted the jury to convict the

15a

defendant regardless of when they believed she formed the

requisite intent to burn the dwelling.

Nor was there overwhelming circumstantial evidence that

the defendant intended to bum anything more than the

defendant's clothes. The defendant's boyfriend **1153

testified at trial that he kept his clothes in “a big duffel bag

right there in [the] corner.” Based on photographs and a

videotape of the fire scene taken after the fire and offered

in evidence, it appears that the pile of clothes on which

the burning paper was thrown was a substantial pile near a

dresser, and that the height of the pile was approximately the

height of three drawers of the dresser, in short, approximately

the height of a standing duffel bag. There was no evidence

that the defendant knew anything about the flammability of

her boyfriend's clothes; the only relevant testimony was that

she had previously tried to burn his clothes and they failed to

ignite.

Moreover, even if a person of ordinary intelligence might

recognize that throwing a lit piece of paper on a duffel bag full

of clothes might result in the burning or charring of some part

of the building, the defendant offered compelling evidence

from a forensic psychologist that the defendant was not a

person of ordinary intelligence. Based on the Wechsler Adult

Intelligence Scale, fourth edition, which the psychologist

described as “the gold standard in psychology to measure

cognitive functioning ... in adults,” the defendant had an

intelligence quota (IQ) of 71, which is approximately two

standard deviations below average. The psychologist testified

that “her score is at the third percentile, which means that ...

ninety-seven percent of similar aged adults scored higher

than her.” He noted that “[a] score of [71] is sometimes

categorized *138 as borderline intellectually disabled.” 2

And he explained that, because she has borderline intellectual

function, she is not able to “foresee consequences, think

through a plan of action, to draw logical conclusions about it.”

He further opined that, “when she engaged in the intentional

act, as she reports, to ignite her boyfriend's clothing, she

did not fully appreciate the circumstances that she was in,

what could reasonably follow from that.” The issue before the

jury under the judge's instructions (in contrast with what the

court concludes should now be under common-law general

intent principles) was not whether a reasonable person in the

defendant's position must have known that there was a plain

and strong likelihood that the apartment would be set on fire

or burned; the issue was whether this borderline intellectually

disabled defendant must have known that. With an IQ at the

third percentile, consequences that might have been apparent

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019)

121N.E.3d1130 Oo

to a reasonable person of average intelligence might not have

been apparent to the defendant.

The forensic psychologist noted that an IQ score below

seventy is considered “intellectually disabled,” which

“used to be referred to as mildly mentally retarded.” He

explained that the defendant's “score is ... right on the

cusp there at [71].”

From this evidence, a reasonable juror may have had a

reasonable doubt whether it was inevitable that throwing a lit

piece of paper on the duffel bag full of clothes would cause

the burning or charring of some part of the building. And even

if a reasonable juror believed that result to be inevitable, that

juror may have had a reasonable doubt that this defendant

recognized its inevitability and intended that result. And if the

judge's instructions had been legally correct, the consequence

of that reasonable doubt may have been a not guilty verdict or

a hung jury, or a guilty verdict of involuntary manslaughter. 3

The jury was not instructed regarding the lesser included

offense of malicious destruction of property.

The judge's erroneous instruction, however, allowed any juror

who may have had **1154 a reasonable doubt whether the

defendant's act was accidental (because she intended to burn

the clothes but not the building) to find the defendant guilty

of arson and felony-murder on a separate theory -- that she

set fire to the clothes, without intending to burn any part of

the building, but having accidently set fire to the building,

“willfully and maliciously [made] no attempt to extinguish or

to report it.” This erroneous arson instruction allowed the jury

to convict the defendant on an *139 incorrect theory of law

regarding the most fundamental issue in the case: whether the

defendant intended to bum the dwelling when she threw the

lit piece of paper onto the duffel bag of clothes.

The court concludes that the standard of review for this

error should be whether it creates a substantial risk of a

miscarriage of justice because the defendant objected to this

jury instruction only on the ground that the Commonwealth,

in response to the defendant's motion for a bill of particulars,

had represented that it would not proceed on the theory of

failure to act; the defendant did not additionally object on

the ground that the instruction constituted an error of law.

Where the Commonwealth proceeds on a theory that is at

variance with its commitment to the court in response to a

bill of particulars, the defendant is entitled to relief upon a

showing that she was denied “notice to prepare [her] defense.”

Commonwealth v. Pillai, 445 Mass. 175, 188, 833 N.E.2d

16a __

1160 (2005), quoting Commonwealth v. Amirault, 404 Mass.

221, 234, 535 N.E.2d 193 (1989). If the defendant was not

afforded such notice, the appropriate standard should be to

review for prejudicial error.

Here, the denial of the notice needed to prepare her defense

caused the defendant to suffer two types of prejudice. First,

in view of the Commonwealth's representation, defense

counsel reasonably would not have believed that he needed to

focus the defendant's factual defense on challenging whether

the defendant wilfully and maliciously made no attempt

to extinguish or report the fire. I agree with the court

that evidence of the defendant's actions after the fire was

admissible because it was relevant to her intent at the time

that she set the fire. Ante at , 121 N.E.3d 1230. But that

does not diminish the fundamental unfairness arising from the

variance: the defendant here was stripped of a fair opportunity

to prepare her defense to a separate and distinct theory of

criminal liability that, in effect, relieved the Commonwealth

of its burden to prove that she intended to set fire to a

dwelling. 4

I recognize, as the court notes, ante at 1147, 121

N.E.3d 1130, that “there was no variance between the

Commonwealth's representations to the motion judge

and the evidence it offered or arguments it made to the

jury at trial.” But the fact remains that, when the judge at

the charge conference suggested that she instruct the jury

regarding the failure to act theory, the Commonwealth

urged her to do so. And regardless of whether the

Commonwealth was in any way at fault, it remains true

that the defendant was deprived of adequate notice to

prepare her defense to that theory of criminal liability,

Second, because of the Commonwealth's representation, there

was no reason for defense counsel to examine the case law

regarding *140 this theory before the charge conference

because the Commonwealth had declared that it did not intend

to proceed on this theory. Because counsel reasonably relied

on the Commonwealth's assurance that it would not pursue a

failure to act theory, the defendant was effectively deprived

of a meaningful opportunity to object to the judge's decision

to instruct the jury that it may convict the defendant on the

failure to act theory. Cf. Mass. R. Crim. P. 22, 378 Mass. 892

(1979) (“if'a party has no opportunity to object to **1155 a

ruling or order, the absence of an objection does not thereafter

prejudice him”). Either source of prejudice is sufficient alone

to justify the application of the prejudicial error standard

rather than the substantial risk of a miscarriage of justice

standard.

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019)

121 N.E.3d 1130 a 7

Because I conclude that this case should be reviewed under

the prejudicial error standard, I now tum to the question

whether the defendant was prejudiced by the erroneous jury

instruction. An error is nonprejudicial only if we are “sure

that the error did not influence the jury, or had but very slight

effect” (citation omitted). Commonwealth v. Flebotte, 417

Mass. 348, 353, 630 N.E.2d 265 (1994). “[I]f one cannot

say, with fair assurance, after pondering all that happened

without stripping the erroneous action from the whole, that

the judgment was not substantially swayed by the error, it

is impossible to conclude that substantial rights were not

affected” (citation omitted). Id. In light of the paucity of

evidence regarding the defendant's intent, the underwhelming

evidence that it was certain that throwing a smoking piece

of paper on top of a duffel bag filled with clothes would

inevitably burn or char some part of the building, and the

expert evidence that a person with the defendant's borderline

intellectual disability might not recognize that inevitability

even if a person of average intelligence would, I cannot be

sure that this error did not materially influence the jury's

decision.

But even if the appropriate standard of review were not

prejudicial error, but a substantial risk of a miscarriage of

justice, I believe that the defendant would still be entitled to

a new trial. We must order a new trial under the substantial

tisk standard “if we have a serious doubt whether the result

of the trial might have been different had the error not been

made.” Commonwealth v. Azar, 435 Mass. 675, 687, 760

N.E.2d 1224 (2002), S.C., 444 Mass. 72, 825 N.E.2d 999

(2005), quoting Commonwealth v. LeFave, 430 Mass. 169,

174, 714 N.E.2d 805 (1999). “We consider the strength of the

Commonwealth's case, the nature of the error, the significance

of the error in the context of *141 the trial, and the possibility

that the absence of an objection was the result of a reasonable

tactical decision.” Id. “We have said that this standard is

particularly well suited to a situation, such as here, where the

elements of a crime are erroneously stated in the jury charge.”

Id. See Commonwealth v. Amirault, 424 Mass. 618, 647 n.21,

677 N.E.2d 652 (1997) (“It is striking that this power [to order

a new trial] is frequently used in respect to jury charges that

include erroneous instructions as to the elements of a crime”).

The erroneous instruction here cannot fairly be characterized

as a mere “reference ... to the failure to report theory,”

as the court posits. Ante at 1147, 121 N.E.3d 1130. The

judge twice instructed the jury on the failure to act theory,

succinctly stating a second time that “in the case of arson,

the Commonwealth bears the burden of proving beyond a

reasonable doubt the defendant wilfully and maliciously set

fire to a dwelling or alternatively, having caused the fire,

then wilfully and maliciously failed to extinguish it or notify

others.” That error permitted the jury to find the defendant

guilty even if they merely believed that she intended to burn

the clothing, regardless of whether she understood when she

threw the lit paper on the clothing that the consequences of

that action would be to burn the dwelling. 5

The court, in concluding that the error was harmless,

declares that the jury could not have reached the

conclusion that the fire “was accidentally or negligently

set ... on any reasonable view of the evidence.” Ante at

1147, 121 N.E.3d 1130. This, respectfully, totally misses

the point. The judge's instruction declared:

“If an act is accidental, it

is not a crime; that is,

the requirement of wilfulness

means that accidentally or

negligently caused burnings are

not arson. However a person

may have the required intent for

arson if he or she negligently

or accidentally causes a fire and

then wilfully and maliciously

makes no attempt to extinguish

it or to report it. In that

the necessary

criminal state of mind for arson,

circumstance,

wilfulness and maliciousness,

may be formed after the fire

Starts.”

Shortly thereafter, she instructed:

“{I]n the case of arson,

the Commonwealth bears the

burden of proving beyond a

reasonable doubt the defendant

wilfully and maliciously set fire

to a dwelling or alternatively,

having caused the fire, then

wilfully and maliciously failed

notify

to extinguish it or

others.”

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019)

121 N.E.3d 1130 ,

A reasonable jury would not understand from these

instructions that this alternative theory -- the failure to

act theory -- applied only if the defendant negligently

or accidentally set the fire. The defendant admitted that

she intentionally set the fire; there would be no good

reason for the judge to offer the jury this alternative

where it found no support in the evidence. Rather,

any reasonable jury would have understood that this

alternative applied if they found that the defendant

accidentally or negligently set fire to the building, and

a reasonable juror “based on any reasonable view of the

evidence” certainly could have concluded this to be true

or, at least, had a reasonable doubt whether it was true.

*142 **1156 Here, where the judge misstated the element

of wilfulness as it applies to the crime of arson of a dwelling

house and, by extension, felony-murder, and allowed the jury

to convict the defendant of these crimes even if they had

a reasonable doubt whether the defendant intended to burn

any part of the building, I conclude that we would tolerate a

substantial risk of a miscarriage of justice if we allow these

verdicts to stand. Because | cannot in good conscience affirm

these convictions, I respectfully dissent.

*143 APPENDIX.

Model Jury Instruction -- Arson of a

Dwelling House -- G. L. c. 266, § 1

In this case, the defendant is charged with arson of a dwelling

house.

In order to prove the defendant guilty of this offense,

the Commonwealth must prove three elements beyond a

reasonable doubt:

First: That the defendant set fire to, burned, or caused to be

burned a building;

Second: That the building was a dwelling house; and

Third: That the defendant acted wilfully and maliciously.

As to the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant set fire to,

burned, or caused to be burned a building. This requires proof

that some portion of the building must have actually been

on fire or burned. There is, however, no requirement that the

building be consumed by fire or destroyed. Proof that some

portion of the building was burned or charred is sufficient.

As to the second element, the Commonwealth must prove

beyond a reasonable doubt that the building was a dwelling

house, a building adjoining or adjacent to a dwelling house,

or a building whose burning resulted in a dwelling house

being burned. A “dwelling house” means a building used

as a dwelling, such as a single-family or multifamily house,

an apartment house, tenement house, hotel, boarding house,

dormitory, hospital, institution, sanatorium, or other building

where people live or reside. It does not matter whether the

dwelling house or other building was occupied or unoccupied

at the time, although the Commonwealth must prove **1157

that the dwelling house was capable of being occupied.

As to the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant acted wilfully

and maliciously. Let me discuss those in reverse order, since

the word “wilfully” is incorporated in the word “maliciously.”

“Malicious” refers to the wilful doing of an unlawful or

injurious act without excuse.

“Wilful” means intentional and by design in contrast to that

which is thoughtless or accidental.

To prove the third element, the Commonwealth does not

necessarily have to prove that the defendant acted for the

purpose of setting fire to or burning some portion of the

dwelling house or other building. Rather, the Commonwealth

may meet its burden of proof as to this third element by

proving one of two things beyond a reasonable doubt: either

that, without justification or excuse, the defendant did, in

fact, act for the purpose of setting fire to, burning, or causing

to be burned some portion of the dwelling house or other

building, or that, without justification or excuse, the defendant

intentionally engaged in an unlawful or injurious act-that

a reasonable person in the defendant's position would have

known created a plain and strong likelihood that some portion

of the dwelling house or other building would be set on fire

or burned.

Keep in mind that the act that results in some portion of

the dwelling house or other building being set on fire or

bumed must be deliberate and intentional. *144 If you have

a reasonable doubt as to whether the fire or burning was

accidental, because it was caused by a negligent, thoughtless,

or mistaken act of the defendant, you may not find that the

defendant acted wilfully and maliciously. Accidental fires or

burnings are not arson.

Commonwealth v. Pfeiffer, 482 Mass. 110 (2019) 19a

121 N.E.3d 1130

All itations

482 Mass. 110, 121 N.E.3d 1130

20a

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

SUFFOLK, ss No. SJC-12431

COMMONWEALTH

MELISSA PFEIFFER

MOTION FOR RECONSIDERATION PURSUANT TO MASS. R. A. P. 97

On May 1, 2019, this Court issued its opinion in the above-captioned case.

Ms. Pfeiffer respectfully moves for reconsideration, pursuant to Mass. R. A. P. 27,

for the reasons that follow.

‘THE LOWER COURT’S ERRONEOUS JURY INSTRUCTION IS PROPERLY

ANALYZED FOR PREJUDICIAL ERROR, AND THIS ERROR WAS

PREJUDICIAL.

In her opening brief, Ms. Pfeiffer argued that one of the two arson jury

instructions was given in error. D.Br. at 17-23. This Court unanimously agreed.

Commonwealth v. Pfeiffer, 482 Mass. 110, *9 (2019). However, a majority of this

Court ruled that because defense counsel did not explicitly object to the jury

instruction for the reason presented on appeal, the issue was not properly preserved

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and was subject to review under the substantial risk of a miscarriage of justice

standard. Jd. at 11. This was incorrect.

A. THE COMMONWEALTH’S WAIVER OF T HE FAILURE TO REPORT THEORY

OF ARSON PROVIDES AN INDEPENDENT BASIS FOR PREJUDICIAL ERROR

REVIEW.

Ms. Pfeiffer argued below, and on appeal, that the Commonwealth waived its

right to pursue the failure to report theory of arson. D.Br. at 23-27. This argument

provided an independent basis for prejudicial error review which this Court did not

squarely address. Pfeiffer, 482 Mass. at *12. While Ms. Pfeiffer maintains that the

erroneous jury instruction results in a substantial risk of a miscarriage of justice for at

least all of the reasons set forth in the dissenting opinion, this Court need not

conduct that analysis because it should explicitly find a waiver and review the

erroneous jury instruction under the prejudicial error standard.

B. PREJUDICIAL ERROR REVIEW IS ALSO WARRANTED WHERE MS. PFEIFFER

DETRIMENTALLY RELIED ON THE COMMONWEALTH’S REPRESENTATIONS

REGARDING ITS THEORY; ITS CHANGE OF HEART ON THEJURY

INSTRUCTION WAS AKIN TO ENTRAPMENT AND VIOLATED DUE PROCESS.

Prejudicial error review is also warranted because any inaction on the part of

defense counsel was due to his detrimental reliance on the government’s repeated

representations that it was not pursuing the failure to extinguish theory.’ Due process

‘In fact, courts expect defendants to rely on the Commonwealth’s representations. A

bill of particulars “entitles defendants to notice of the government’s theory of the

case,” and its purpose is to “prevent the prosecution from changing its theory of the

case.” United States v. Doe, 572 F.3d 1162, 1176 (10" Cir. 2009).

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forbids entrapment. Raley, 360 U.S. at 438-439 (convictions for actions taken in

reliance on state officials’ interpretations of state law was akin to entrapment and

violated due process). Even where there is no deliberate deception by the

government, if a defendant detrimentally relies on a government representation, she

cannot be punished for doing so. See Gray v. Netherland, 518 U.S. 152, 165 (1996)

(explaining that even where there is no government deception, “defendants who

detrimentally relied on the assurance of a committee chairman could not be

punished for having done so”), citing Raley v. Ohio, 360 U.S. 423 (1959).

And yet, this Court punished Ms. Pfeiffer by imposing a substantial risk of a

miscarriage of justice standard for not preparing a more pointed objection to a jury

instruction that the Commonwealth had repeatedly disavowed. This is not permitted.

“The Due Process Clause does not permit convictions to be obtained under such

circumstances.” Cox v. Louisiana, 379 U.S. 559, 571 (1965). Because defense

counsel relied on the Commonwealth’s representations in its trial preparation - and

indeed, did object when the waived theory was suddenly inserted into the case - Ms.

Pfeiffer is entitled to prejudicial error review.

C. THE IMPROPER INSTRUCTION BOTH PREJUDICED MS. PFEIFFER AND

RESULTED IN A SUBSTANTIAL RISK OF A MISCARRIAGE OF JUSTICE.

This Court held that Ms. Pfeiffer’s claims of prejudice “miss the mark”

because “the jury did not have before them any facts that were otherwise

inadmissible.” Jd. More specifically, this Court held that no prejudice resulted from

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the variance between the Commonwealth’s repeated representations as to its theory

and the improper jury instruction, stating that the Commonwealth’s closing argument

did not argue the failure to extinguish theory, and that the jury could not have relied

upon it anyway. Jd. This is wrong as a matter of fact and as a matter of law.

As a matter of fact, the Commonwealth did argue, at least implicitly (if not

explicitly), that Ms. Pfeiffer purposefully failed to report the fire. Specifically, the

Commonwealth argued:

She lit an apartment building on fire at 11:00 at night on Christmas

Ive. Yes, people are going to be home. She did nothing to alert anyone

inside that building that fire was burning. She just left. She went outside.

She made no attempts to alert anyone to call for help, to do anything.

She’s just again, out for herself.

When you put this all together, when you consider all of the credible

evidence you have before you, yes she had a traumatic upbringing, but

it does not excuse her for what she did. She did it purposely. She

wanted to do it. And with that mindset, she set that fire. She let it burn,

and Crystal died. That is why she is guilty of murder.”

T8:69-70. Without the erroneous jury instruction, the Commonwealth’s argument

would clearly be interpreted as saying that Ms. Pfeiffer lit the building on purpose.

With the erroneous jury instruction, however, it could go either way.

As a matter of law, Ms. Pfeiffer was prejudiced by the lack of notice because

she did not present evidence she otherwise could have and, as the dissent

recognized, she “was stripped of a fair opportunity to prepare her defense to a

separate and distinct theory of criminal liability.” Jd. at *17 (Gants, CJ., dissenting).

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The Supreme Court has held that it “has never been doubted in our constitutional

system|[] that a person cannot incur the loss of liberty for an offense without notice

and a meaningful opportunity to defend.” Jackson v. Virginia, 443 U.S. 307, 314

(1979).

Moreover, this Court’s finding of no prejudice is legally incorrect because

jurors are told closing arguments are not evidence (here at T8:77) and they are

presumed to follow all of their instructions. Commonwealth v. Silva, 482 Mass. 275,

*10 (2019) Gurors “are presumed to follow all instructions they are given”). The

instructions given in this case permitted the jurors to convict if they believed that Ms.

Pfeiffer accidentally set the building on fire, but willfully and maliciously failed to

report it. 18:97-98. This Court’s ruling that the jury could not have convicted on the

failure to report theory because the jury could not have concluded that the fire was

accidentally set conflates the specific intent jury instruction that was given with this

Court’s holding, now on appeal, that only a general intent is required. Pfeiffer, 482

Mass. at *12.

As stated above, the jurors were clearly instructed that if Ms. Pfeiffer

accidentally set fire to the building, not accidentally set the fire in general, she could

be convicted under the failure to report theory. T8:97-98.’ See Commonwealth vy.

* The jurors were instructed as follows: “A person acts willfully 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. Although an act may be intentional its consequences

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Ehiabhi, 478 Mass. 154, 167 (2017) (erroneous jury instruction examined in context

of entire Jury charge to determine reasonable interpretation). To rely on the fact that

there may have been a general intent to set a fire which a reasonable person would

have known created a plain and strong likelihood that the building would catch fire,

a point which Ms. Pfeiffer contests, infra, to find no prejudice from an instruction

that requires specific intent to burn a building reduces the Commonwealth’s burden

after the fact, in violation of the ex post facto clause.’ See Carmell v. Texas, 529 U.S.

518, 521, 532-533 (2000) (reducing burden of proof violates fourth category of ex

post facto clause forbidding alteration of legal rules of evidence such that less

evidence is required to convict); Commonwealth v. Mahoney, 447 Mass. 577, 586-

587 (2006) (retroactive changes to burden of proof violate ex post facto clause). U.S.

Const. art. I, § 10; art. 24 of the Massachusetts Constitution.

Ms. Pfeiffer disagrees with this Court’s finding that the evidence of general

intent was “overwhelming” because it ignores both the strong evidence of her

may be accidental. An accident is defined as an unexpected happening in that it

occurs without intention or design on the defendant’s part. If an act is accidental, it is

not a crime; that is the requirement of willfulness means that accidentally or

negligently caused burnings are not arson. However, a person may have the required

intent for arson if he or she negligently or accidentally causes a fire and the willfully

and maliciously makes no attempt to extinguish it or to report it.” T8:98.

* Similarly, retrospective application of a new judicial construction of a statute or of

the common law violates due process. See Bouie v. City of Columbia, 378 U.S. 347,

354-355 (1964) (retroactive application of new and unforeseeable state court

interpretation of statute violates due process); Rogers v. Tennessee, 532 U.S. 451,

461-462 (2001) (applying Boure holding to common law changes).

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cognitive limitations, as well as the fact that the jury did not convict her of third

prong malice. While not an acquittal, the fact that the jury did not find beyond a

reasonable doubt that Ms. Pfeiffer recognized her conduct created a plain and strong

likelihood of death demonstrates that it credited the expert’s testimony on this issue

and did not find that Ms. Pfeiffer could foresee the consequences of her actions. '

Accordingly, it is far from certain that the jury would have convicted Ms. Pfeiffer of

arson under the reasonable person standard this Court sets forth in the appendix to

its opinion. Pfeiffer, 482 Mass. at *19.

Finally, this Court’s holding that the jury could not have relied upon the

erroneous instruction because it was not factually supported fails to account for

significant precedent on point. It is axiomatic that when a trial court instructs on a

theory which lacks an evidentiary basis, jurors may still believe, based on the fact that

the judge gave the instruction at all, that there was an evidentiary basis. See

Commonwealth v. Stuckich, 450 Mass. 449, 454 (2008) (instruction on

consciousness of guilt implies that there was evidence that defendant demonstrated

consciousness of guilt); Conumonwealth v. Plunkett, 422 Mass. 634, 639-640 (1996)

‘ The jurors were instructed on third prong malice as follows: “In order to prove

murder in the second degree ..., the Commonwealth must prove the following

elements, first the defendant caused the death of Crystal Blanchard; second, the

defendant intended to do an act which, in the circumstances know to the defendant,

a reasonable person would’ve known created a plain and strong likelihood that death

would result. ... In deciding whether the Commonwealth has approved the requisite

state of mind both as to the defendants’ knowledge and her intent, you should

consider any credible evidence of mental impairment.” T8:102-104.

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(“If the judge tells a jury that they may find the defendant guilty on a theory that is

factually unsupported ..., the jurors understandably might believe that there must be

evidence to support that theory”). Since this Court has “no indication as to the

rationale or process behind the jury’s decision, it would be inappropriate to

speculate that they were not influenced by this flawed instruction.” Commonwealth

v. McLaughlin, 433 Mass. 558, 563 (2001). For all of these reasons, the erroneous

jury instruction was prejudicial, resulted in a substantial risk of a miscarriage of

justice, and a new trial is required.

In sum, in light of the above, this Court’s decision should be reconsidered.

Respectfully submitted,

Melissa Pfeiffer

By her attorney,

/s/ Rebecca Jacobstein

Rebecca A. Jacobstein

BBO# 651048

Committee for Public Counsel Services

44, Bromfield Street

Boston, MA 02108

617.910.5726

ryacobstein@publiccounsel.net

THIS CASE CONTAINS IMPOUNDED MATERIAL OR PID

Commonwealth of Massachusetts

Forecourt Paragon ®

Entered 11/16/2017

Case Status Decided, Rescript issued

Case Nature Murder2

Brief Status

Appellant Defendant

Route to SJC Direct Appellate Review

Case Type Criminal

Argued/Submitted 09/06/2018

Decision Date 05/01/2019

Rescript Date 06/07/2019

Olsposition Decided (Full Opinion)

ACISJ DocketNo 2017-P-0416

Lower Court Suffolk Superior Court (ssuffo)

Lower Ct Entry 03/08/2011

Transcripts y

Lower Ct Judge(s) Janet L. Sanders, J

Jeffrey A. Locke, J

Mary K. Ames, J.

Mot. for New Trial

Related Case(s) $J-2013-0215

: SJC-11521

2018-P-0289

2018-P-0290

SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH

Docket Sheet

SJC-12431

Commonwealth v Melissa Pfeiffer

CASE HEADER

Docket Type SJC Full Court

Status Date 06/07/2019

Sub-Nature

Brief Due

Case Type Criminal

Route Date 11/15/2017

Public Partially mpounded

Quorum CJG LK GZ LO+ BD CRK

Citation 482 Mass. 110

Disposition Date 05/01/2019

Other Court Information

DARIFAR No DAR-25636

FAR Applicant Defendant

Lower Ct No 1184CR10211

Transcript Ordered 06/14/2016

Role(s) Trial Judge

Heard Motion

Notice of Appeal

Relation(s) Same Parties

Same Parties

Similar issue raised

Additional Information

09/04/2019

10:48 am

Transcripts received: 12 volumes. Transcripts dates: 10/12/13, 10/30/14, 1/21/16, 1/28/16, 1/29/16, 2/1/16, 2/2/16, 2/3/16, 2/4/16, 2/9/16, 2/40/

16, 3/24/16. (Scanned)

INVOLVED PARTY

Commonwealth

Plaintiff/Appeliee

Red brief & appendix filed, 2 Extensions, 53 Days

Active 03/30/2017

‘edsfc’, ‘338946', ‘228269, 'y’, 'y’, 'y’, ‘y, ‘n’

ATTORNEY APPEARANCE

Colby Tilley

ADA.

Office of the District Attorney/Suffolk

One Bullfinch Place

Boston, MA 02114

Phone: 617-619-4070

682583 Inactive 06/07/2019

John P. Zanini

A.D.A.

Office of the District Attorney/Plymouth

Chief Legal Counsel

166 Main Street

Brockton, MA 02301

Phone: 508-894-2688

563839 Active 03/30/2017 Courtesy, eMail Only (APC)

Julie Higgins

A.DA.

Office of the District Attorney/Suffolk

One Bulfinch Place

Boston, MA 02114

Phone: 617-619-4271, Fax: 617-619-4009

632679 Active 09/06/2018 Entitled, eMail Allowed

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