Criminal – Arson

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Where a Superior Court jury convicted a defendant of arson of a dwelling house, felony-murder in the second degree and two counts of injuring a firefighter, an erroneous jury instruction does not warrant overturning the verdicts.

Affirmed.

“The parties, both in the trial court and on appeal, have treated the charge of arson under G.L.c. 266, section1, as a specific intent crime. As discussed herein, however, arson under section1, which is derived from the common law, is a crime requiring general intent with malice. We accordingly provide an appendix containing a model jury instruction for arson of a dwelling house under G.L.c. 266, section1, which has been unanimously approved and recommended by this court.

“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. …

“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, section1, 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. …

“… For the first time, the defendant argues that the supplemental instruction was improper because G.L.c. 266, section1, does not criminalize the wilful and malicious failure to extinguish or report an accidentally or negligently set fire. We agree. …

“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. …

“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.”

Dissenting justice’s comments

Gants, C.J., with whom Lenk and Budd, JJ., join. “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 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.”

Commonwealth v. Pfeiffer (Lawyers Weekly No. 10-079-19) (59 pages) (Lowy, J.) (Gants, C.J., with whom Lenk and Budd, JJ., join, dissenting in part) Cases tried before Sanders, J., in Superior Court. Rebecca A. Jacobstein on appeal for the defendant; Colby M. Tilley (Julie S. Higgins also present) for the Commonwealth; Marguerite T. Grant, for district attorney for the Norfolk district and others, amici curiae, submitted a brief (Docket No. SJC-12431) (May 1, 2019).

Click here to read the full text of the opinion (corrected version).

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