In Commonwealth v. Gonzalez, the SJC reversed the defendant’s conviction of first-degree murder because the judge failed to instruct the jury that they could consider the defendant’s intoxication in assessing whether he had acted with extreme cruelty or atrocity. The case arose from the stabbing death of the defendant’s girl friend after the two had spent the evening drinking together. There was strong evidence indicating that it was the defendant who stabbed the victim and that he was intoxicated when he did so. Extreme atrocity or cruelty was the only theory of first-degree murder on which the jury convicted the defendant; the jury declined to convict him on a theory of deliberate premeditation. Although the judge instructed the jury that they should consider the potential effect of intoxication on the defendant’s intent, the Court stated that that instruction was inadequate because “‘[i]ntent and knowledge are not aspects of extreme atrocity or cruelty.’ Therefore, the judge’s instructions on intoxication would have been understood by the jury to relate only to the elements of premeditation and malice, and not to whether the defendant acted with extreme atrocity or cruelty.” The Court rejected the Commonwealth’s “conten[tion] that there was no substantial likelihood [of a miscarriage of justice] because its theory of extreme atrocity or cruelty focused on the number of stab wounds the defendant inflicted on the victim and her degree of suffering, and these would not be affected by the defendant’s intoxication. This overlooks the rationale for the jury instruction, which is that “‘the jury should reflect the community’s conscience in determining what constitutes an extremely cruel or atrocious killing.’” ‘In that role, the jury must take a defendant’s intoxication into account when evaluating cruelty or atrocity aside from any issue of intent.’ ….. But the … instruction [here] ‘effectively removed what may have been [the defendant’s] only viable defense to the question of extreme atrocity or cruelty.

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