Commonwealth v. Doughty

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SJC-13112

COMMONWEALTH vs. WES DOUGHTY.

Essex. January 9, 2023. - May 2, 2023.

Present: Budd, C.J., Lowy, Kafker, Wendlandt, & Georges, JJ.

Homicide. Practice, Criminal, Mistrial, Argument by prosecutor,
Instructions to jury, Jury and jurors, Conduct of juror,
Indictment, Capital case. Mental Impairment.
Intoxication. Jury and Jurors. Burning a Dwelling House.
Attempt. Jurisdiction, Superior Court. Superior Court,
Jurisdiction.

Indictments found and returned in the Superior Court
Department on May 9, 2017.

The cases were tried before Timothy Q. Feeley, J.

Jeffrey L. Baler for the defendant.
Kathryn L. Janssen, Assistant District Attorney, for the
Commonwealth.

WENDLANDT, J. The defendant, Wes Doughty, was convicted on

two counts of murder in the first degree in connection with the

February 2017 killings of Mark Greenlaw and Jennifer O'Connor

inside a Peabody home. The defendant admitted to killing
 2

Greenlaw, whom he shot in the face at close range; however, he

contended that the killing was committed in a heat of passion

stemming from Greenlaw's treatment of David Moise, a "crack"

cocaine dealer who was wheelchair-bound and who also lived in

the Peabody residence. He also admitted to killing O'Connor,

whom he stabbed and slashed more than twenty times as she

pleaded for her life, asked to see her father, and gasped

futilely for breath; but the defendant contended that he had

been under the influence of crack cocaine. The jury convicted

the defendant of murder in the first degree on the theory of

premeditation as to both victims, and on the theory of extreme

atrocity or cruelty as to O'Connor.1

On appeal, the defendant maintains that the trial judge

abused his discretion in denying his motion for mistrial, that

the prosecutor's closing argument was improper, that the jury

instructions were erroneous, that a juror should have been

dismissed, and that the attempted arson indictment was

defective. He also asks this court to exercise its authority

under G. L. c. 278, § 33E, to reduce the degree of guilt or

1 He was also convicted of one count of attempted burning of
a dwelling, in violation of G. L. c. 266, § 5A; one count of
armed carjacking, in violation of G. L. c. 265, § 21A; one count
of kidnapping, in violation of G. L. c. 265, § 26; and one count
of assault and battery by means of a dangerous weapon, in
violation of G. L. c. 265, § 15A (b).
 3

order a new trial. We affirm the convictions and discern no

reason to grant relief under G. L. c. 278, § 33E.

1. Background. a. Facts. The following facts are

supported by the evidence presented at trial.

The events leading to the killings took place in the

Peabody home from which Moise ran his drug distribution

operation. Shortly before the killings, Greenlaw moved into the

home. Greenlaw assisted Moise in his drug-selling enterprise,

gradually replacing Michael Hebb, who, along with his

girlfriend, Christine Cummisky, also resided in the home.

The defendant was one of Moise's regular buyers; he came to

the home daily to use cocaine and also to help care for Moise,

whom he called "Dad." On the afternoon of the killings,

Cummisky heard Hebb and the defendant discussing Greenlaw in the

second-floor bedroom. Both men were angry.2

Hebb complained that Greenlaw was "moving in" on Moise's

drug dealing business and was adamant that he "wasn't letting it

happen." The defendant disapproved of the care Greenlaw

provided to Moise, who required assistance in eating and

2 Disagreements among the residents began after Greenlaw
began spending more time at the house; a week before the
killings, Greenlaw slapped Hebb, giving him a black eye, and
Hebb later responded by discharging a rifle into the garage when
he believed Greenlaw was inside. Cummisky suspected that Hebb
knew she had twice been intimate with Greenlaw. Hebb also may
have owed Greenlaw money.
 4

toileting. The defendant and Hebb discussed "doing something"

to Greenlaw. The defendant told Hebb, "When you see me standing

in this spot, you know shit is about to happen," referring to a

spot between two lion figures in front of the house.

Soon thereafter, Cummisky saw the defendant standing in the

agreed spot, and she notified Hebb, who had gone to the second-

floor bathroom to shower. The defendant reentered the home and

went upstairs into the bedroom; he was holding a revolver.

Cummisky heard the first-floor bathroom door open, and the

defendant ran downstairs; Hebb stayed upstairs with Cummisky.

Cummisky heard the defendant and Greenlaw arguing, and then

she heard gunshots. The medical examiner later opined that

Greenlaw was killed by a close-range shotgun blast between his

eyes.3

Cummisky next heard a woman -- presumably O'Connor, who was

engaged to Greenlaw -- scream, "[O]h, my God. What did you do?"

and plead with Greenlaw to "wake up."4 Cummisky then heard

O'Connor say, "[P]lease just let me leave. I just want to go

3 Police officers eventually recovered a shotgun in a marsh
or wood through which the defendant and Hebb had fled, see
infra; it was capable of firing the type of shot that killed
Greenlaw and contained a live round. Officers also recovered a
rifle, a shotgun, and a revolver in the basement of the Peabody
house, but none of these was likely the murder weapon.

4 Hebb went downstairs and then returned a few minutes
later.
 5

see my dad," and, "If you're going to rape me, kill me first,"

followed by whimpering.5 The medical examiner testified that

O'Connor was stabbed and sliced twenty times, including twice on

her torso, with one stab wound penetrating her left lung and one

penetrating to her spine. She had at least a dozen wounds in

her neck; her jugular vein was severed, and her carotid artery

was cut.6 The medical examiner testified that the hemorrhaging

from the wounds on her torso indicated that they likely were

inflicted after the stab wounds in the neck. As she was dying

from blood loss, she would have tried to breathe faster and

deeper, but the injury to her left lung would have interfered

with her ability to do so. Most likely, she did not die

instantaneously, but rather over the course of minutes.

When the defendant returned upstairs, he was shirtless and

covered in blood. Hebb went downstairs and returned with a

shotgun or rifle wrapped in a pair of jeans. Hebb also carried

Moise, who was crying, upstairs. Cummisky heard banging

5 Forensic evidence later determined that O'Connor was
killed on Moise's bed, which was located on the first floor, but
on the other side of the house from where Greenlaw had been
killed; her blood was found on the bedframe, floor, and walls.
The defendant was very likely a minor contributor to
deoxyribonucleic acid found under O'Connor's nails.

6 Two knives stained with human blood were later recovered
from the basement: a folding knife and a serrated single-edge
saw-type knife.
 6

downstairs and asked Hebb whether the defendant had shot

Greenlaw; Hebb confirmed that the defendant had done so.

The next day, the defendant ordered Cummisky to clean blood

off the kitchen cabinets, which Cummisky did.7 The defendant

followed her as she cleaned. By this point, the crack cocaine

supply in the house had been depleted; Hebb and the defendant

called a supplier to deliver more. When the supplier arrived,

he noticed the kitchen and living room had been cleaned; the

defendant was carrying a shotgun and looked "strange."

The defendant and Hebb then spent time in the basement;

they told Cummisky to bang on the stairs if anyone pulled into

the driveway. While the defendant and Hebb were in the

basement, Cummisky fled from the home, without shoes or a coat

despite the winter conditions. Cummisky waved down a driver in

a passing vehicle and dove into the vehicle headfirst, screaming

that "[t]hey just killed two people." The driver took Cummisky

to the police station, where Cummisky reported the killings. A

marked police cruiser established a loose perimeter at the home.

Early the following morning, a former buyer of the drug

distribution business arrived at the home; all the lights were

off. The buyer observed that the defendant was "high as a

Cummisky had asked Hebb whether the defendant planned to
7

kill her; Hebb responded that the defendant did not, but Hebb
warned Cummisky not to "act crazy in front of him."
 7

kite," and she saw him do "a couple of hits" of crack cocaine.

The defendant, whom the buyer described as "a strange person,"

"an idiot," "always off," "a weird dude," and "always a little

different," was "acting even stranger than he usually did." The

defendant pointed a rifle or shotgun at the buyer's face and

asked repeatedly whether law enforcement officials were outside.

After the defendant escorted the buyer from the home, the buyer

sent Hebb a text message informing him of the presence of a

police cruiser on the street outside the house.

The defendant and Hebb fled from the home in a van before a

special weapons and tactics team entered the home. In the

basement, the law enforcement officials found gasoline

containers and a welding torch hose threaded down the bulkhead

leading to two rolled up rugs; inside the rugs were the victims'

bodies, wrapped in cellophane and placed in body bags. The

officers also found a bloody mattress, garbage bags, and a

disassembled shotgun or rifle. The welding torch hose was

connected to an acetylene tank filled with flammable gas.8 The

rugs and garbage bags were covered in flammable liquid; inside

the bags were blood-soaked clothing and bedding, along with a

pocket knife. The kitchen smelled strongly of cleaning

products.

8 The defendant had experience with welding.
 8

When the van in which the defendant and Hebb had fled broke

down, Hebb called a friend to pick them up. When the friend

arrived, Hebb emerged from the woods wearing a mechanic's

outfit, followed several minutes later by the defendant. Both

were soaking wet.

Later, the defendant arrived alone at the Middleton home of

one of his childhood friends; the defendant was wet and

apparently cold. The defendant said, "I'm in some trouble.

I've got -- it was them or me. I've got a couple of bodies."

The defendant made a gesture as if he were handling a rifle.

The friend declined to help him, and the defendant stole a car

from the property and fled.

A few days later, the defendant entered Kenneth Metz's car

and forced him into the passenger's seat at knifepoint, tying

him up with a seatbelt and driving to various locations. The

defendant twice mentioned "the Farm Ave. killing,"9 apparently

assuming Metz had seen news coverage of it. Metz testified that

the defendant said he had been "really angry because the other

people there had been giving medical-grade heroin to a relative

or his godfather and he didn't want his godfather getting

addicted to heroin." The defendant told Metz that he "went in

without any weapons but used whatever was in the house." He

9 The Peabody home where the killings occurred was on Farm
Avenue.
 9

also stated, "I've killed one person now. It won't matter too

much if I have to kill another one." Metz managed to escape,

and he later reported to the police that the defendant stated he

had killed "these people." Metz also stated that he "knew

pretty quick this guy wasn't altogether" and that the

defendant's "attitude was fluctuating." The defendant drove

Metz's car to South Carolina, where he was apprehended a few

days later.10

On his return trip to Massachusetts, police officers found

the defendant to be "odd." On the drive to the airport, the

defendant asked to see the officers' cell phones to view media

coverage of the killings. The defendant asked one officer

whether he was tired and offered to drive, which the officer

found "[e]xtremely weird." The defendant also commented that he

had "made great time" driving down to South Carolina and pointed

out landmarks, behavior which the officer found "odd." The

defendant assigned nicknames to the officers. He asked the

officers if they were right- or left-handed and commented that

he needed to lace his boots tight in case he needed to run. At

the airport, the defendant shook his handcuffs, drawing

attention to himself, behavior which the officers also found

"odd." On the airplane, the defendant tried to speak with other

10Hebb was apprehended in Peabody; he pleaded guilty to
accessory after the fact and attempted burning of a dwelling.
 10

passengers, stating to a passenger with a crucifix, "I'm evil."

He also asked an officer whether he would "let [the defendant]

go" if the plane crashed into the ocean. Again, the officer

found these statements "bizarre" and "[v]ery strange."

b. Procedural history. The defendant was indicted in

May 2017 on two counts of murder in the first degree, in

violation of G. L. c. 265, § 1; one count of rape, in violation

of G. L. c. 265, § 22 (b);11 one count of attempted burning of a

dwelling, in violation of G. L. c. 266, § 5A; one count of armed

carjacking, in violation of G. L. c. 265, § 21A; one count of

kidnapping, in violation of G. L. c. 265, § 26; and one count of

assault and battery by means of a dangerous weapon, in violation

of G. L. c. 265, § 15A (b). A jury trial was held in

September 2019.12

The jury found the defendant guilty of murder in the first

degree on the theory of deliberate premeditation as to the

killing of both Greenlaw and O'Connor, and also on the theory of

extreme atrocity or cruelty as to O'Connor. The defendant was

sentenced to two consecutive life sentences without parole for

11As discussed infra, a nolle prosequi was entered on the
rape charge.

12At the start of jury selection, defense counsel raised
the issue whether to ask about sexual assault during voir dire;
the judge did not add the proposed questions, explaining that
the inquiry could bring to the attention of the jury a question
about which there would potentially be no evidence.
 11

the two counts of murder in the first degree.13 He filed a

timely notice of appeal.

2. Discussion. On appeal, the defendant raises several

errors, which we address in turn.

a. Mistrial. The defendant maintains that the judge

abused his discretion in denying his motion for a mistrial after

Cummisky testified to O'Connor's statement, "If you're going to

rape me, kill me first."

i. Testimony regarding victim's fear of rape. Prior to

the trial, a nolle prosequi was entered on the rape charge.14

The defendant filed a motion to exclude as hearsay certain

statements that Cummisky said Hebb had made relating to this

charge. In particular, Cummisky had disclosed that, following

Greenlaw's killing when Hebb returned upstairs carrying Moise,

Hebb had told Cummisky that "[the defendant] is having sex with

[O'Connor]" and "his DNA is going to be all in her." The

13The jury also found the defendant guilty as to the other
charges. On the count of armed carjacking, the defendant was
sentenced to a term of from twelve years to fifteen years,
concurrent with the first life sentence, and a $1,000 fine. On
the count of kidnapping, the defendant was sentenced to a term
of from eight years to ten years, concurrent with the first life
sentence. On the counts of attempted burning of a dwelling and
assault and battery by means of a dangerous weapon, the
defendant was sentenced to twenty years' probation each, to run
concurrently with one another and the first life sentence.

14The indictments were not renumbered; as a result, there
was no count three either when the indictments were read aloud
or on the verdict slips.
 12

prosecutor consented to the motion and further agreed to exclude

evidence that Cummisky heard sounds of sexual intercourse.

On the sixth day of trial, Cummisky testified that after

she heard gunshots, she heard a woman screaming15 and that Hebb

went downstairs where the killings occurred and then came back

upstairs. The judge allowed defense counsel's request for a

sidebar. Defense counsel asked whether the prosecutor had

instructed Cummisky not to testify as to hearing sounds of

sexual intercourse, consistent with the parties' agreement. The

prosecutor asked for a recess during which she reminded Cummisky

not to testify regarding the sounds and not to testify as to

Hebb's excluded statements.

When Cummisky returned to the witness stand, the prosecutor

asked Cummisky whether she continued to hear O'Connor downstairs

and what she heard O'Connor say; Cummisky responded that

O'Connor said, "Please just let me leave. I just want to go see

my dad." The prosecutor asked whether she heard O'Connor say

"anything else." Cummisky then testified that she heard

O'Connor say, "If you're going to rape me, kill me first."16

15As set forth supra, the woman (presumably O'Connor)
screamed, "[O]h, my God. What did you do?" and pleaded with
Greenlaw to "wake up."

16The prosecutor continued, asking whether Cummisky had
heard O'Connor say "anything else"; Cummisky had not. Finally,
the prosecutor asked whether Cummisky heard screaming or other
noises of pain; Cummisky responded that she heard whimpering.
 13

The defendant moved for a mistrial. The prosecutor

explained that consistent with the parties' agreement, she had

instructed Cummisky not to reference Hebb's excluded statements

and the sounds of sexual intercourse. She also represented

that, prior to Cummisky's testimony, she had not known that

Cummisky had heard O'Connor's statement that O'Connor feared

being raped.

The judge credited the prosecutor's explanation and denied

the motion. The judge reasoned that Cummisky's testimony

regarding O'Connor's statement was different from the excluded

evidence related to sexual noises and Hebb's statements. He

also explained that the statement did not "suggest that this

witness [had] knowledge that, in fact, a rape did or did not

occur"; it was "a statement that she heard that is totally

consistent with the charges that remain . . . and [did] not

disclose to the jury . . . that there [was] any suggestion in

the Commonwealth's evidence of a rape."

The judge offered to give a curative instruction and to

have the statement struck from the record; defense counsel

declined, determining that either option "would draw more

attention to the issue." Cummisky's testimony regarding

O'Connor's statement was not mentioned again.

ii. Analysis. "The decision whether to declare a mistrial

is within the discretion of the trial judge." Commonwealth v.
 14

Bryant, 447 Mass. 494, 503 (2006). This is because the judge is

in the best position to determine whether the jury likely would

be prejudiced. Commonwealth v. Santiago, 425 Mass. 491, 496

(1997), S.C., 427 Mass. 298 and 428 Mass. 39, cert. denied, 525

U.S. 1003 (1998). Thus, our review is limited to determining

whether "the judge made a clear error of judgment in weighing

the factors relevant to the decision . . . such that the

decision falls outside the range of reasonable alternatives"

(quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014).

The defendant speculates that the statement, coupled with

the gap in the numbered indictments, changed the tenor of the

jury's consideration by causing them to believe that rape was

the missing charge. He contends that the judge abused his

discretion in denying the motion for a mistrial. We disagree.

To begin, O'Connor's statement was relevant to the issue of

extreme atrocity or cruelty. Commonwealth v. Cunneen, 389 Mass.

216, 227 (1983) (listing factors to be considered by jury in

determining extreme atrocity or cruelty, including

"consciousness and degree of suffering of the victim").17 See

Commonwealth v. Witkowski, 487 Mass. 675, 683-684 (2021)

17After the defendant's trial, we modified the Cunneen
factors prospectively. See Commonwealth v. Castillo, 485 Mass.
852, 864-866 (2020).
 15

(victim's "fear and terror" relevant to theory of extreme

atrocity or cruelty); Commonwealth v. Rakes, 478 Mass. 22, 44

(2017) (victim's "emotional response" was relevant to theory of

extreme atrocity or cruelty). See also Commonwealth v.

Teixeira, 490 Mass. 733, 744 (2022), quoting Commonwealth v.

Castillo, 485 Mass. 852, 864 (2020) ("a victim's substantial

degree of conscious suffering may support a finding of extreme

atrocity or cruelty where it is the reasonably likely

consequence of the defendant's actions").18

Moreover, the statement, which was a surprise to the

prosecutor,19 was not highlighted; indeed, it was not repeated or

otherwise referenced during the entire two-week trial.20 On this

18Contrary to the defendant's contention, the statement,
which concerned the victim's fear that she might be raped, was
not evidence of a prior bad act used to demonstrate bad
character or propensity to commit crime. See Commonwealth v.
McDonagh, 480 Mass. 131, 140-141 (2018) ("evidence of the
defendant's other bad acts . . . may be admissible to prove a
material issue separate and distinct from the defendant's
character or propensity to commit the crime charged").

19We defer to the judge's credibility determination. See
Commonwealth v. Jackson, 486 Mass. 763, 780 (2021) ("Given the
deference owed trial judges, particularly involving credibility
determinations, we cannot conclude that the trial judge abused
his discretion here . . ."). "There is nothing in the record to
suggest that the [testimony] was planned or even that the
prosecutor had any reason to suspect" Cummisky would testify to
the statement. Santiago, 425 Mass. at 496.

20For this same reason, we are not persuaded by the
defendant's contention that the isolated statement was
prejudicial because there was no voir dire regarding sexual
offenses during empanelment. See note 12, supra.
 16

record, there was no abuse of discretion. See Commonwealth v.

Gallagher, 408 Mass. 510, 517-518 (1990) (not abuse of

discretion to deny motion for mistrial based on one reference to

defendant's incarceration in ten-day trial). See also Bryant,

447 Mass. at 503-504 (collecting cases in which witness's

spontaneous testimony was not so inflammatory as to require

mistrial).

b. Closing arguments. The defendant contends that the

prosecutor's closing argument impermissibly appealed to the

jury's sympathy and contained misstatements of the evidence.

"In determining whether an argument was improper we examine the

remarks in the context of the entire argument, and in light of

the judge's instructions to the jury and the evidence at trial."

Teixeira, 490 Mass. at 740, quoting Commonwealth v. Kolenovic,

478 Mass. 189, 199 (2017).

i. Appeal to sympathy. The defendant maintains that the

prosecutor impermissibly appealed to emotion by stating, "

[Greenlaw] and [O'Connor] were human beings. They were loved.

And, despite the battles they were losing at the time of their

deaths, they deserved a chance to win the war."

It is well settled that a prosecutor may not appeal to the

jury's sympathy. Commonwealth v. Guy, 454 Mass. 440, 444-445

(2009). Neither may a prosecutor emphasize "personal

characteristics [that] are not relevant to any material issue,"
 17

if such emphasis would "risk[] undermining the rationality and

thus the integrity of the jury's verdict" (citation omitted).

Commonwealth v. Fernandes, 487 Mass. 770, 791 (2021), cert.

denied, 142 S. Ct. 831 (2022) (discussing repeated reference to

victim's age as relevant to extreme atrocity or cruelty and

concluding that such reference as well as additional

characterization of victim as "innocent boy" did not require new

trial where jury were instructed that closing arguments are not

evidence and that they were to be guided by "[r]eason, logic,

[and] common sense" and "not emotion, not sympathy, not

sentiment"). A prosecutor may, however, "tell the jury

something of the person whose life had been lost in order to

humanize the proceedings." Fernandes, supra, quoting Santiago,

425 Mass. at 495.

Here, the prosecutor's statement was not quite the same as

a statement that the victim did not "deserve" to die, which we

have previously said is improper. Compare Commonwealth v.

Gentile, 437 Mass. 569, 580 (2002) ("victim 'didn't deserve to

die this way'"). Instead, the statement was a plea that the

jury not "write off" the victims (as well as the other occupants

of the Peabody home, including the defendant) as unworthy of

their attention, a theme to which the prosecutor returned at the

end of her argument:
 18

"It would be really easy, ladies and gentlemen, to write
off the residence of Farm Ave., to think of it as just
that, a parallel universe that has nothing to do with us
and that, frankly, the people who enter there deserve what
they get.

"Nobody in this case, not [Greenlaw], not [O'Connor], not
[the defendant,] not . . . Cummisky or . . . Hebb, nobody
grew up thinking that they would end up at Farm Ave. It is
not what anyone plans for their life, and nothing about
having been at Farm Ave. or having been an addict means
that anyone deserved what they got . . . ."

Nonetheless, we agree with the defendant that the statement was

not material to any disputed issue, compare Fernandes, 487 Mass.

at 791 (references to victim's young age material to extreme

atrocity or cruelty), and it bordered on the types of emotional

appeals we have discouraged, see Commonwealth v. Lodge, 431

Mass. 461, 470-471 (2000) (statement that victim "was entitled

to the right to live and this man took it" improper);

Commonwealth v. Barros, 425 Mass. 572, 581 (1997) (statement

that victim had "right to live, and these guys, these guys took

it away from him" improper). See also Commonwealth v. Torres,

437 Mass. 460, 465 (2002) ("remarks concerning the victims'

rights were improper appeals to sympathy"). Although asking the

jury not to "write off the residence" as people who "deserve

what they get" was permissible humanizing, the prosecutor went

further, stating that the victims "deserved a chance to win the

war," which was impermissible.
 19

We conclude, however, that the statement, to which no

objection was made at trial, did not create a substantial

likelihood of a miscarriage of justice. Commonwealth v.

Alemany, 488 Mass. 499, 511 (2021) ("Where the defendant did not

object at trial, we review for a substantial likelihood of a

miscarriage of justice"). The prosecutor did not suggest that

the jury base their verdict on sympathy for the victims.

Compare Santiago, 425 Mass. at 495 (request for jury to "think

about" victim's age and pregnancy improper). The comment was

fleeting and made in the context of an otherwise proper closing

argument. See Alemany, supra at 512-513 (no substantial

miscarriage of justice where improper comments were made during

course of otherwise proper closing argument). The judge

instructed the jury three times that closing arguments were "not

evidence" and that the jurors must decide the case based on the

evidence and not on "[e]motion or sympathy." See Fernandes, 487

Mass. at 791 (jury instruction not to be guided by emotions

cured any prejudicial effect of prosecutor's improper remark

during closing); Commonwealth v. Andre, 484 Mass. 403, 419

(2020) (same). And, as set forth supra, the evidence of the

defendant's guilt was overwhelming. See Alemany, supra at 513-

514 ("evidence against the defendant was overwhelming");

Commonwealth v. Kent K., 427 Mass. 754, 761 (1998) (appeal to

sympathy "troubling" but "less crucial" where guilt was clear).
 20

ii. Misstatements. The defendant also contends that the

prosecutor's statement that "there is no view of this evidence

[that the defendant] didn't take pleasure in the killing of

. . . O'Connor"21 was unsupported by the evidence.

"In closing argument, a prosecutor may not 'misstate the

evidence or refer to facts not in evidence.'" Commonwealth v.

Joyner, 467 Mass. 176, 188-189 (2014), quoting Commonwealth v.

Lewis, 465 Mass. 119, 129 (2013). See Mass G. Evid.

§ 1113(b)(3)(A) (2022). "However, a prosecutor may argue

reasonable inferences from the evidence." Joyner, supra at 189,

quoting Lewis, supra.

The prosecutor's statement, which was relevant to the issue

of extreme atrocity or cruelty, was a fair inference from the

evidence, inter alia, that the defendant had alternative means

of killing O'Connor quickly with the shotgun and instead chose

to prolong her death by using a knife; that he brought her away

from Greenlaw's body to Moise's bed and there slit her throat;

and that he stabbed her additional times while she whimpered and

begged for her father in the minutes during which she was

bleeding out, gasping for breath, and dying. See Castillo, 485

Mass. at 865 ("whether the defendant was indifferent to or took

21The prosecutor later stated, "He took pleasure in that
killing. He killed her slowly in the worst possible way . . . .
And then he took pleasure in the media coverage of it."
 21

pleasure in the suffering of the deceased" is factor upon which

jury can make finding of extreme atrocity or cruelty); Cunneen,

389 Mass. at 227.

c. Jury instructions. i. Mental impairment instruction.

The judge instructed that, in determining whether the defendant

formed the intent to kill required for murder in the first

degree under the theory of deliberate premeditation, the jury

could consider "any credible evidence that the defendant was

affected by his ingestion of drugs." The judge denied the

defendant's request to instruct the jury to also consider

whether he "suffered from a mental impairment." The judge

concluded that "the evidence would not warrant any reasonable

jury in drawing inferences that mental impairment may have

affected his ability to form the intent with deliberate

premeditation to commit murder." That evidence consisted of lay

witness testimony that the defendant generally was "odd,"

"weird," or "strange." One witness testified that, following

the killings, the defendant was "even stranger" than usual.

Metz observed, also after the killings, that the defendant

"wasn't altogether" and exhibited "fluctuating" attitudes. And

officers who escorted the defendant back from South Carolina

where he had fled also thought the defendant "odd" and described

his strange behaviors en route back to the Commonwealth. No

evidence linked these observations to the defendant's drug use,
 22

and no evidence tied the drug use to a mental impairment, much

less a mental impairment at the time of the killings.

On this record, the judge did not err in denying the

defendant's request for a mental impairment instruction. See

Commonwealth v. Santiago (No. 2), 485 Mass. 416, 426-427 (2020)

("to be entitled to an instruction on mental impairment, a

defendant must, at a minimum, introduce evidence that such an

impairment existed at the time of the conduct in question").

Cf. Commonwealth v. Fernandes, 485 Mass. 172, 197 (2020), cert.

denied, 141 S. Ct. 1111 (2021) ("Evidence that the defendant

consumed alcohol in proximity to the crime[, two to three beers

over several hours,] does not itself establish a resulting state

of 'debilitating intoxication' such as could support reasonable

doubt about the defendant's capability to form the requisite

criminal intent"); Commonwealth v. Lennon, 463 Mass. 520, 522-

523 (2012) (no impairment instruction warranted where only

evidence was that defendant "might have been under the influence

of alcohol to some degree about two hours before the stabbing").

Contrast Commonwealth v. Rutkowski, 459 Mass. 794, 796-799

(2011) (mental impairment instruction required based on evidence

of defendant's "long history of mental illness," including

hospitalizations and diagnoses).

ii. Mitigating circumstances instruction. The defendant

next contends that the jury instruction that the defendant's
 23

ingestion of drugs was not a mitigating circumstance that would

reduce murder to manslaughter contradicted the instruction that

the jury could consider the defendant's voluntary ingestion of

drugs as it related to his intent to commit murder. "A trial

judge has the duty to state the applicable law clearly and

correctly, but is not required to grant a particular instruction

so long as the charge, as a whole, adequately covers the issue"

(quotations and citations omitted). Teixeira, 490 Mass. at 742.

"Trial judges have considerable discretion in framing jury

instructions, both in determining the precise phraseology used

and the appropriate degree of elaboration" (quotation and

citation omitted). Commonwealth v. Kelly, 470 Mass. 682, 688

(2015). "In assessing the sufficiency of the jury instructions,

we consider the charge in its entirety, to determine the

probable impact, appraised realistically upon the jury's

factfinding function" (quotation and alteration omitted).

Teixeira, supra, quoting Commonwealth v. Wall, 469 Mass. 652,

670 (2014). "Instructions that convey the proper legal

standard, particularly when tracking model jury instructions,

are deemed correct." Green, petitioner, 475 Mass. 624, 629

(2016).

The judge properly instructed that the jury "may consider

any credible evidence that the defendant was affected by his

ingestion of drugs" in deciding whether the defendant acted with
 24

the requisite intent for deliberate premeditation or extreme

atrocity or cruelty.22

The judge also correctly explained:

"The law recognizes that in certain circumstances which we
refer to as mitigating circumstances, a crime is a lesser
offense than it would have been in the absence of one or
more mitigating circumstances.

"The killing of . . . Greenlaw that would otherwise be
murder in the first or second degree is reduced to the
lesser offense of voluntary manslaughter i[f] the defendant
killed . . . Greenlaw under mitigating circumstances. Not
every circumstance you may think [is] mitigating is
recognized as mitigating under the law."

See Model Jury Instructions on Homicide 48-49 (2018).

The judge then explained that "voluntary ingestion of drugs

is not a mitigating circumstance." This also was a correct

statement of the law. Voluntary ingestion of drugs, like mental

impairment, is relevant to intent, but it is not a "mitigating

circumstance" as that term is used in the law to reduce murder

to manslaughter.23 See Commonwealth v. Johnston, 446 Mass. 555,

559-560 (2006) ("While mental impairment [and voluntary

22These instructions were largely taken from the model jury
instructions. See Model Jury Instructions on Homicide 47, 54
(2018). See also Commonwealth v. Figueroa, 468 Mass. 204, 222
(2014); Commonwealth v. Mercado, 456 Mass. 198, 207-208 (2010);
Commonwealth v. Sires, 413 Mass. 292, 300 (1992).

23"Mitigating circumstances" are limited to "heat of
passion on a reasonable provocation," "heat of passion induced
by sudden combat," and "excessive use of force in self-defense
or in defense of another." Model Jury Instructions on Homicide
49 (2018).
 25

intoxication] may be considered . . . on the question whether a

defendant formed a specific intent to kill," "a specific intent

to cause grievous bodily harm," or "intent to do an act, in

circumstances known to the defendant, that a reasonable person

would know creates a plain and strong likelihood of death," "it

is not a mitigating factor that would reduce murder to

manslaughter").

Thereafter, the judge explained that "mitigating

circumstances" serve to reduce murder to manslaughter, and then

described the particular mitigating circumstances at issue in

the case. Viewed as a whole, these instructions "state[d] the

applicable law clearly and correctly" such that a reasonable

jury could apply the law to the facts; there was no error.

Teixeira, 490 Mass. at 742.

iii. Drug use instruction. We agree with the defendant

that the judge erred in failing to instruct the jury that they

could consider voluntary ingestion of drugs in determining

extreme atrocity or cruelty, in addition to considering it in

determining intent. See Commonwealth v. Boucher, 474 Mass. 1, 7

(2016) ("When the theory of extreme atrocity or cruelty is in

play, an instruction on voluntary intoxication that links

consideration of intoxication only to a defendant's intent or

knowledge, without also explaining that the jury may consider
 26

intoxication in relation to whether the defendant committed the

killing with extreme atrocity or cruelty, is in error").

Because the jury also convicted the defendant on the theory

of deliberation premeditation, however, the error did not create

a substantial likelihood of a miscarriage of justice. See

Commonwealth v. Nolin, 448 Mass. 207, 220 (2007) ("If [the] jury

return a guilty verdict based on two theories, the verdict will

remain undisturbed even if only one theory is sustained on

appeal").

d. Alleged juror misconduct. The defendant contends that

the judge erred in declining to dismiss a juror accused of

premature deliberation.

i. Allegation of premature deliberation. After alternate

jurors were selected and the jury retired for deliberations, an

alternate juror, juror no. 10, reported to the judge that a

deliberating juror, juror no. 15, had made comments about the

case a few days prior. Juror no. 10 reported that juror no. 15

commented that "the defense is not bringing up anybody" and

asked other jurors how long the deliberations would take,

stating that deliberations "shouldn't take that long."

Additionally, juror no. 10 reported that juror no. 15 had

stated, before the trial began and before the judge had

instructed the jury, "I hate to do this to someone, but you have

to do what you've got to do."
 27

The judge then questioned all other jurors; each answered

that no one had expressed any thoughts or comments about the

substance of the case prior to deliberations. When juror no. 15

was informed that the judge had received information that she

may have commented about how long deliberations would take,

juror no. 15 did not recall whether the comment had been made,

but added, "I could have asked that because I don't know how

long they take." Juror no. 15 was also asked about forming

opinions on the strength of the case prior to deliberations;

juror no. 15 explained, "I don't feel like my mind was made up."

The judge denied the defendant's motion to dismiss juror

no. 15, based on the lack of corroboration by other jurors and

"concerns about the credibility and the motives" of juror no.

10, given the fact that juror no. 10 waited days to report the

allegations, only disclosing them after being made an alternate,

perhaps on the hope of becoming a deliberating juror.24 "[G]iven

the lack of corroboration of any statements by any other fellow

jurors, some of whom were alleged to have been present" when

juror no. 15 was alleged to have made the statements, and juror

no. 15's responses, the judge concluded, "I don't find

misconduct, and I have substantial questions . . . about the

bona fides of the report." The judge excused juror no. 10.

24The prosecutor noted that juror no. 10 had been "visibly
angry" after being selected as an alternate.
 28

ii. Analysis. We review the judge's decision not to

excuse juror no. 15 for abuse of discretion. See Commonwealth

v. Philbrook, 475 Mass. 20, 31 (2016). "Prohibiting premature

jury deliberations, and extraneous influences on jurors,

safeguards a defendant's right to trial before an impartial

jury." Id. at 30. "A judge's 'determination of a juror's

impartiality is essentially one of credibility, and therefore

largely one of demeanor,'" to which we give "great deference."

Id., quoting Commonwealth v. Alicea, 464 Mass. 837, 849 (2013).

"Jurors 'inevitably formulate impressions as they hear evidence.

This is natural and cannot be prevented. . . . The question is

whether jurors can suspend final judgment and keep their minds

open to other evidence that they hear.'" Philbrook, supra at

31, quoting Commonwealth v. Guisti, 434 Mass. 245, 254 (2001),

S.C., 449 Mass. 1018 (2007).

Here, the record is devoid of any basis to doubt the

judge's findings, after questioning the jurors, that juror no.

10 was not credible, that there was no misconduct by juror no.

15, and that juror no. 15's statement about being able to keep

an open mind should be credited.25 See Commonwealth v. Torres,

25Juror no. 15 first explained, "I think everybody kind of
forms an opinion as you're going along." As we explained in
Philbrook, this is "natural and cannot be prevented"; it is
acceptable so long as the juror keeps an open mind. Philbrook,
475 Mass. at 31, quoting Guisti, 434 Mass. at 254.
 29

453 Mass. 722, 735 (2009) ("The judge was in the unique position

to note the juror's demeanor, and nothing in the record leads us

to conclude that his decision to retain her was clearly

erroneous or an abuse of discretion").

e. Indictment charging attempted burning of a dwelling.

The defendant maintains, for the first time, that the indictment

charging the attempted burning of a dwelling should be dismissed

because it failed to specify the crime charged and failed

further to set forth the overt act constituting the alleged

attempt. "In a criminal case," however, "any defense or

objection based upon defects in the . . . indictment, other than

a failure to show jurisdiction in the court or to charge an

offense, shall only be raised prior to trial." G. L. c. 277,

§ 47A. The parties suggest that the argument is preserved

because it pertains to the court's subject matter jurisdiction.

See Commonwealth v. Nick N., 486 Mass. 696, 702 (2021), quoting

Commonwealth v. DeJesus, 440 Mass. 147, 151 (2003) ("A question

of subject matter jurisdiction 'may be raised at any time and is

not waived even when not argued'" [alterations omitted]). This

is not accurate.26

26In fairness to the parties, our case law has not always
been consistent in describing the defect caused by the failure
of an indictment to charge a crime. See Commonwealth v.
Garrett, 473 Mass. 257, 264 (2015), citing Commonwealth v.
Senior, 454 Mass. 12, 14 (2009) ("whether an indictment fails to
allege an offense is a matter of jurisdiction, which may be
 30

Subject matter jurisdiction concerns the power of the court

to entertain a particular category of case. See Black's Law

Dictionary 1017, 1020 (11th ed. 2019) (defining "jurisdiction"

as "[a] court's power to decide a case or issue a decree" and

"subject-matter jurisdiction" as "[j]urisdiction over the nature

of the case and the type of relief sought"); Black's Law

Dictionary 1425 (6th ed. 1990) (defining "[s]ubject matter

jurisdiction" as "court's power to hear and determine cases of

the general class or category to which proceedings in question

belong; the power to deal with the general subject involved in

the action"). See also J.W. Glannon, Civil Procedure: Examples

and Explanations 73 (2d ed. 1992) ("Subject matter jurisdiction

. . . concerns the court's authority to hear generic types of

cases. All state court systems have a set of trial courts with

raised at any time"); Commonwealth v. Canty, 466 Mass. 535, 547
(2013), quoting Commonwealth v. Palladino, 358 Mass. 28, 31
(1970) ("No court has jurisdiction to sentence a defendant for
that which is not a crime"); Commonwealth v. Cantres, 405 Mass.
238, 239-240 (1989), citing Commonwealth v. Andler, 247 Mass.
580, 581-582 (1924) ("if an indictment fails to state a crime,
no court has jurisdiction to entertain it, . . . and the
jurisdictional question may be raised at any time"). Rather
than strip the court of subject matter jurisdiction, such an
indictment violates constitutional principles, such as those
secured by art. 12 of the Massachusetts Declaration of Rights.
See Canty, supra at 546-547 (failure of indictment to charge
crime violates defendant's "due process rights under art. 12
. . . , which provides that '[n]o subject shall be held to
answer for any crimes or offence, until the same is fully and
plainly, substantially and formally, described to him'");
Palladino, supra ("A conviction on an indictment that charges no
crime would be sheer denial of due process").
 31

very broad subject matter jurisdiction. These courts . . . have

subject matter jurisdiction over a wide range of suits . . .");

A.B. Spencer, Civil Procedure: A Contemporary Approach 13 (5th

ed. 2018) (subject matter jurisdiction addresses whether courts

"have competency to hear a case, meaning they are authorized to

adjudicate disputes of a particular kind").

The Superior Court has "original jurisdiction of all

crimes." G. L. c. 212, § 6. The failure of an indictment

charging the attempted burning of a dwelling to set forth the

crime charged or an overt act does not strip the court of the

power to hear the cause, let alone the category of criminal

actions generally; in other words, a defect in an indictment has

no bearing on the court's authority to hear a category of cases,

here, all criminal cases.

Having clarified that a defect in an indictment is not a

question concerning the subject matter jurisdiction of the

court, we turn to the defendant's argument that the indictment

failed to charge a crime because it did not specify that he was

charged with an attempt to burn a "dwelling."27 See G. L.

27 The indictment stated:

"Wes Doughty, of Peabody, in the county of Essex, on or
about February 18, 2017 at Peabody in the County of Essex
aforesaid, did willfully and maliciously attempt to set
fire to, or attempt to burn, or aid, counsel[,] or assist
in such an attempt to set fire to or burn, or did commit
any act preliminary thereto or in furtherance thereof,
 32

c. 277, § 47A (challenge based on indictment's "failure to

charge" crime preserved). Here, the indictment was captioned

"Attempted Burning of a Dwelling" and cited "266/5A" (emphases

added). Accordingly, the defendant's challenge fails because

the caption together with the other words of the indictment

identifies that the offense charged is a violation of G. L.

c. 266, § 5A, which is a crime. See Commonwealth v. Canty, 466

Mass. 535, 548 (2013) (indictment provided "fair notice of the

crime charged" "where the caption identified the criminal

statute that was violated").

The defendant also challenges the indictment on the ground

that the absence of an overt act from the indictment violates

art. 12 of the Declaration of Rights of the Massachusetts

Constitution. Passing over whether the defendant has waived any

challenge based on this purported defect in the indictment, we

conclude that the absence of an overt act from the attempted

arson indictment, charging a violation of G. L. c. 266, § 5A,

did not violate art. 12.

Article 12 provides that "[n]o subject shall be held to

answer for any crimes or offence, until the same is fully and

plainly, substantially and formally, described to him." The

against the peace of the Commonwealth aforesaid, and
contrary to the form of the statute in such case made and
provided."
 33

defendant was charged with attempted burning of a dwelling in

violation of G. L. c. 266, § 5A, which delineates the overt acts

that "constitute an attempt":

"[t]he placing or distributing of any flammable, explosive
or combustible material or substance or any device in or
against any building, structure[,] or property . . . in an
arrangement or preparation with intent eventually to
willfully and maliciously set fire to or burn such
building, structure[,] or property, or to procure the
setting fire to or burning of the same."

G. L. c. 266, § 5A. In view of the statute's express

delineation of the overt acts, the indictment was not required

to restate these overt acts.28 "Provided there is fair notice of

the crime charged, '[i]t is not necessary for the Commonwealth

to set forth in the complaint or indictment every element of the

crime . . . .'" Canty, 466 Mass. at 547, quoting Commonwealth

28The defendant was not charged under the general attempt
statute, which provides: "Whoever attempts to commit a crime by
doing any act toward its commission, but fails in its
perpetration, or is intercepted or prevented in its
perpetration" shall be punished." G. L. c. 274, § 6. "We have
. . . recognized that a 'charge of attempt [under the general
attempt statute] should set forth in direct terms that the
defendant attempted to commit the crime, and should allege the
act or acts done toward its commission.'" Senior, 454 Mass. at
15 n.3, quoting Commonwealth v. Gosselin, 365 Mass. 116, 121
(1974). Thus, we have held that an indictment under the general
attempt statute, G. L. c. 274, § 6, must "allege the act or acts
done toward its commission"; "[o]vert acts not alleged may not
be relied on." Gosselin, supra, citing Commonwealth v. Peaslee,
177 Mass. 267, 274 (1901). But see Commonwealth v. Lourenco,
438 Mass. 1018, 1019 (2003) (question "whether the overt act
requirement remains valid to describe fully and plainly the
charge of attempt to the defendant, or if it reflects an
anachronistic view of sufficient indictments and complaints").
 34

v. Fernandes, 430 Mass. 517, 520 (1999), cert. denied sub nom.

Martinez v. Massachusetts, 530 U.S. 1281 (2000). See Canty,

supra at 548 ("the absence of a required element in an

indictment does not by itself establish that a crime is not

charged, even if acquittal is required if the prosecution were

to prove only the allegations in the indictment"). See also

G. L. c. 277, § 34 ("An indictment shall not be dismissed or be

considered defective or insufficient if it is sufficient to

enable the defendant to understand the charge and to prepare his

defense; nor shall it be considered defective or insufficient

for lack of any description or information which might be

obtained by requiring a bill of particulars"). As such, the

defendant's challenge to the indictment has no merit.29

f. Review under G. L. c. 278, § 33E. After review of the

entire record, we discern no error warranting relief under G. L.

c. 278, § 33E.

Judgments affirmed.

29The defendant also maintains that the indictment is
defective because it failed to list the particular dwelling in
question; this argument also fails. The defendant did not ask
for a bill of particulars, which could have provided him with
the address of the dwelling. See G. L. c. 277, § 34. Moreover,
he was provided with the grand jury minutes, which identified
the specific dwelling alleged to have been the subject of the
attempted arson.