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Commonwealth v. Squailia3/2/1999
rder convictions, in cases such as Commonwealth v. Qualls, 425 Mass. 163, 167-173 (1997), and Commonwealth v. Cyr, supra at 92-95. The evidence was also cumulative on the points of the defendant's state of mind in view of ample other evidence of threats, acts of physical violence, marital discord, suspicions of infidelity, the defendant's statements to others that he intended to kill the victim, and the defendant's additional statement that, "If I can't have her no one will." See Commonwealth v. Andrade, 422 Mass. 236, 240 (1996).
2. We next discuss the alleged errors in the Judge's instructions.
(a) The trial Judge was the same Judge who, in Commonwealth v. Kosilek, 423 Mass. 449, 453 (1996), said in his final jury instructions concerning the element of deliberate premeditation that premeditation "does not exclude action that is taken so quickly that there is no time to think about the action and then determine to do it" (emphasis added). The Judge gave the same instruction in this case, and he repeated it when he defined deliberate premeditation in answer to a question from the jury during their deliberations. There was no objection on either occasion. The instruction was error. For the reasons expressed in the Kosilek decision, id. at 454, we reject the defendant's argument that the misstatement requires a new trial.
(b) The only theory of murder in the first degree before the jury was deliberate premeditation. The Judge correctly instructed on premeditation (except for the slip described above), and he defined malice by describing all three of its prongs without explicitly stating that only the first prong, specific intent to kill, is relevant to a charge of premeditated murder in the first degree. Because the jury found premeditation, the reference to the second and third prongs of malice could not create a substantial likelihood of a miscarriage of Justice. The Judge had instructed that the jury had to find, beyond a reasonable doubt, that the defendant intended to kill the victim before they could find premeditation. See Commonwealth v. Nolan, 427 Mass. 541, 544 (1998), and cases cited.
(c) The Judge instructed the jury without objection that: "Any intentional killing of a human being without legal justification or excuse with no extenuating circumstances sufficient in law to reduce the crime to manslaughter is malicious within the meaning of malice aforethought." The instruction was correct. See Commonwealth v. Adrey, 397 Mass. 751, 755 (1986) ("An intentional killing without justification or excuse is indeed an unlawful killing with malice aforethought, and is murder"). The instruction did not create or convey an improper presumption.
(d) The Judge instructed the jury on murder in the first degree by reason of deliberate premeditation, murder in the second degree, and involuntary manslaughter. He also told the jury that the defendant could not be found liable for an accidental killing. The Judge stated that the Commonwealth was required to prove beyond a reasonable doubt that the victim's killing was not accidental. He further advised the jury that they could consider "any evidence of mental impairment on whether the defendant . . . had the capacity to form any necessary state of mind, intent or knowledge."
The Judge denied the defendant's request to instruct the jury on voluntary manslaughter on the theory that the victim had been shot when the defendant lost his self-control and acted in the heat of sudden passion. See Commonwealth v. Schnopps, 383 Mass. 178, 180 (1981), S.C., 390 Mass. 722 (1984). The defendant argues that the failure to instruct on voluntary manslaughter constitutes error that requires a new trial. We disagree.<
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