Commonwealth v. Pagan ( 2015 )


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    SJC-11714
    COMMONWEALTH   vs.   JUAN PAGAN.
    Middlesex.     January 6, 2015. - June 1, 2015.
    Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
    & Hines, JJ.
    Homicide. Evidence, Intent, Motive, Age. Intent. Mental
    Impairment. Practice, Criminal, Verdict, Lesser included
    offense, Instructions to jury. Malice.
    Indictments found and returned in the Superior Court
    Department on June 22, 2006.
    The case was tried before S. Jane Haggerty, J.; a motion to
    reduce the verdict was heard by her; and a motion for a new
    trial, filed on June 13, 2012, was also heard by her.
    The Supreme Judicial Court granted an application for
    direct appellate review.
    John F. Palmer for Juan Pagan.
    Bethany Stevens, Assistant District Attorney, for the
    Commonwealth.
    Afton M. Templin, for Committee for Public Counsel
    Services, amicus curiae, submitted a brief.
    2
    HINES, J.    On July 24, 2007, a jury convicted the
    defendant, Juan Pagan, of murder in the first degree on the
    theory of deliberate premeditation.    At trial, there was no
    dispute that the defendant, when he was sixteen years of age,
    stabbed Alex Castro Santos (victim) to death.    His defense was
    that he was not guilty of murder because he had acted in self-
    defense and with a mental impairment, namely attention deficit
    hyperactivity disorder (ADHD) and depression, which when viewed
    in the context of his age, caused him to act reflexively and
    instinctively.    One month following his conviction, the
    defendant filed a motion pursuant to Mass. R. Crim. P.
    25 (b) (2), 
    378 Mass. 896
    (1979), to reduce the verdict to
    murder in the second degree, which the trial judge granted and
    from which the Commonwealth appeals.    After he was resentenced,
    the defendant filed a notice of appeal.    Subsequently, on June
    13, 2012, the defendant filed a motion for a new trial in the
    Superior Court, pursuant to Mass. R. Crim. P. 30 (b), as
    appearing in 
    435 Mass. 1501
    (2001), arguing that the court room
    had been closed during jury empanelment in violation of his
    right to a public trial under the Sixth Amendment to the United
    States Constitution.    Following a hearing, a judge denied the
    motion. 1   The defendant thereafter filed a separate appeal from
    1
    The trial judge was also the judge who heard both the
    motion to reduce the verdict and the motion for a new trial.
    3
    this order.   The defendant's direct appeal 2 and his appeal from
    the denial of his motion for a new trial were consolidated in
    the Appeals Court, and we granted the Commonwealth's application
    for direct appellate review.   We affirm the orders allowing a
    reduction of the verdict to murder in the second degree and
    denying the defendant's motion for a new trial, and affirm the
    defendant's conviction.
    Trial.   We recite the facts the jury could have found based
    on the Commonwealth's case, see Commonwealth v. Latimore, 
    378 Mass. 671
    , 676-677 (1979), reserving certain details for our
    discussion of the specific issues raised.    During the late
    evening of May 14, 2006, a group of young men in their late
    teens and early twenties gathered at the apartment of Stephen
    Peddle in Lowell to socialize and to play cards.    Peddle and
    some of the men were or had been affiliated with GRIP, a housing
    program for homeless or displaced youth. 3   Although not involved
    with GRIP at the time, the defendant was living with Peddle.
    Among those gathered at Peddle's apartment that night were
    Peddle, the defendant, Michael May, and Ramon Normil.    At around
    2
    In his direct appeal, the defendant argues reversible
    error in the judge's failure to instruct on involuntary
    manslaughter.
    3
    In the GRIP program, homeless youths are taught life
    skills in a group home setting. Once the youths have acquired
    these skills and have obtained employment, the organization
    assists them in finding independent housing.
    4
    10:30 P.M., Brian Patrick Murphy, Markeem Bishop, Joshua Spencer
    Apostolos, and Adam Costas joined them.    Approximately twenty
    minutes later, the victim arrived.    He was upset because his
    friend had been "jumped" by some member or members of a gang.
    The victim blamed the defendant, Normil, and Peddle for the
    incident because he suspected they associated with the gang that
    allegedly had been involved.    When asked, Normil informed the
    victim that he did not know who had participated in the attack.
    The victim told everyone that friends were looking for members
    of that gang, implicitly suggesting there would be retaliation.
    The defendant grew upset, stating that some of those people were
    his friends.
    Having exhausted the last of a "blunt," or marijuana
    cigarette, Murphy, Costas, Bishop, and the victim left, heading
    to a nearby convenience store to purchase a cigar. 4   They were
    gone for about five to ten minutes before returning to Peddle's
    apartment. 5   When they arrived, the defendant and May were no
    longer there.
    The defendant and May left to visit a friend of the
    defendant's, Nicholas George Giuliani.    On approaching his
    4
    The victim was not present when some of the men smoked the
    first blunt.
    5
    Joshua Apostolos used the cigar the group purchased to
    make another blunt that everyone took turns smoking.
    5
    automobile, 6 the defendant and May saw that some of the windows
    had been broken.    The defendant told May that he suspected that
    the victim had been responsible.
    After briefly visiting Giuliani, the defendant and May
    returned to Peddle's apartment. 7    The defendant was upset and
    verbally confronted the victim, who stated that he had had a BB
    gun earlier, but not anymore. 8   The victim went on to deny any
    involvement with breaking the windows of the defendant's
    vehicle, but stated that he knew who had done it and would not
    tell the defendant.    The defendant asked the rest of the group
    whether anyone had seen anything.     No one volunteered
    information about the incident.     The victim decided to leave and
    started saying goodbye.    He told the defendant he was "sorry"
    and it just had been a "joke."      The victim repeated that he was
    upset about his friend and wanted to go find the perpetrators.
    Apostolos, a friend of the victim, testified that the victim
    6
    The automobile was owned by the defendant's father.
    7
    The defendant told Nicholas George Giuliani what had
    transpired that evening and asked whether Giuliani would
    accompany him to Stephen Peddle's apartment to "watch his back."
    Giuliani declined and returned to bed.
    8
    There was evidence that Markeem Bishop had a BB gun that
    "looked like a pistol." The day prior, "everyone" had played
    with the BB gun, including the victim.
    6
    patted his waist area indicating that he had a weapon. 9    The
    defendant asked the victim tauntingly, "Are you ready to use
    that?"    The victim replied that he was, and the defendant "got
    quiet."
    After taking a cigarette from Normil, the victim headed
    toward the door, which was in the direction of the defendant,
    and stood inside the doorway.    The defendant, meanwhile, had
    taken a seat on a mattress in the living room and had picked up
    a large combat-style knife with an eight-inch blade and began
    twirling it.     Murphy testified that the victim walked toward the
    defendant; Apostolos testified that the victim turned toward the
    direction of the defendant from the doorway. 10   The defendant
    abruptly jumped up from the mattress, stepped around Apostolos,
    punched the victim three times in the face, and stabbed him in
    the abdomen.   When Apostolos ran to the victim's aid, he
    observed a BB gun approximately three to four feet from the
    victim's body.
    9
    Brian Patrick Murphy testified that he did not see the
    victim make any threatening gestures and did not see the victim
    in possession of any type of gun. Ramon Normil's testimony was
    the same. Although Apostolos observed a BB gun on the floor
    after the stabbing, he did not see it in the victim's
    possession, nor did he hear the victim make any threats to the
    defendant.
    10
    The defendant's friend, Michael May, testified that the
    victim had not approached the defendant just before the
    stabbing. Normil stated that the victim was walking toward the
    door.
    7
    Murphy took over assisting the victim, who asked to go to a
    hospital, and Apostolos restrained the defendant.       The knife the
    defendant had been holding was on the floor.
    The defendant fled the apartment and arrived at Giuliani's
    home at about 1:30 A.M., now May 15.       The defendant said that
    someone had had a gun.      He was scared and crying, and told
    Giuliani that he thought that he had just killed someone and
    that he had stabbed him.      After falling asleep on Giuliani's
    couch, the defendant awoke to pounding at the front door.
    Seeing that it was the police, the defendant ran out the back
    door, but was caught and arrested.
    The victim was treated by ambulance personnel at the
    apartment.      He did not survive.   The medical examiner who
    conducted his autopsy opined that the victim died as a result of
    a stab wound to the abdomen, with perforation of the liver and
    vena cava. 11
    The police recovered a BB gun outside the rear window of
    Peddle's apartment.      They also took possession of the knife.
    The theory of the defense was that the defendant, who was
    sixteen years of age at the time of the stabbing, did not intend
    to kill the victim and had acted impulsively or in self-defense.
    11
    The medical examiner explained that the stab wound had
    cut the victim's interior vena cava, which is a large vein that
    carries blood from one's lower extremities to the heart to be
    reoxygenated.
    8
    The defendant did not testify.    He supported his defense with
    the expert testimony of Dr. Bernice Kelly, a forensic
    psychologist.    Dr. Kelly interviewed the defendant four times
    and took note of the fact that he had a very "troubling"
    childhood involving a mother who abused drugs and a father who
    physically abused him frequently.    On the basis of her
    interviews, testing, and review of school, medical, and other
    records, Dr. Kelly concluded that the defendant suffered from
    ADHD 12 and dysthymic disorder (depression from an early age) at
    the time of the stabbing.    She opined that his ADHD exacerbated
    the impulsivity of an adolescent brain that is prone to risk-
    taking. 13   Dr. Kelly testified that in the circumstances the
    defendant was in just before the stabbing, being an adolescent
    with ADHD and depression and being in fear of imminent bodily
    harm, he would not have been able to consider alternative
    choices and was only capable of acting impulsively.
    12
    The defendant had been diagnosed with attention deficit
    hyperactivity disorder (ADHD) when he was in kindergarten. Dr.
    Bernice Kelly explained that about seven per cent of the
    population has ADHD. She explained that it is "a condition that
    has to begin before age seven." Symptoms include hyperactivity,
    impulsivity, and difficulty with attention, concentration,
    planning, and problem-solving. She also cited research that
    states that the brain undergoes more change during adolescence
    than at any other time, ending when one is approximately twenty-
    one years of age.
    13
    Dr. Kelly testified that the frontal lobe area of the
    brain, which controls thinking and planning, and enables one to
    inhibit responses, is not well developed in adolescents.
    9
    The judge instructed the jury on murder in the first degree
    on a theory of deliberate premeditation, murder in the second
    degree, and voluntary manslaughter based on reasonable
    provocation and the use of excessive force in self-defense.    The
    judge also gave an instruction on self-defense as a complete
    defense.   The judge further instructed on the relevance of
    mental impairment as it bore on the requisite intent to kill, on
    deliberate premeditation, and on whether the Commonwealth met
    its burden of proving that the defendant did not act in self-
    defense, did not act with reasonable provocation, and did not
    use excessive force in self-defense.
    Discussion.   1.   Commonwealth's appeal; motion to reduce
    the verdict.    As has been stated, the judge allowed the
    defendant's motion under rule 25 (b) (2) and reduced the verdict
    to murder in the second degree.    The Commonwealth appeals,
    seeking reinstatement of the jury's verdict of murder in the
    first degree.    We affirm the judge's order.
    The guiding principles for reducing a verdict under rule 25
    (b) (2) are set forth in Commonwealth v. Sokphann Chhim, 
    447 Mass. 370
    , 381-382 (2006):
    "A trial judge has the authority, pursuant to rule 25
    (b) (2), to reduce a verdict, despite the presence of
    sufficient evidence to support the jury's verdict. . . .
    Although the purpose of the power to reduce a verdict is to
    ensure that the result in every case is consonant with
    justice, . . . the power is to be used sparingly, . . . and
    the judge is not to sit as a second jury. . . . A most
    10
    important consideration is whether the jury verdict is
    markedly inconsistent with verdicts returned in similar
    cases. . . . Our role is not to decide whether we would
    have acted as the trial judge did. The judge has the
    advantage of face to face evaluation of the witnesses and
    the evidence at trial and is therefore in a far better
    position than we[] to make the judgment required by [rule
    25 (b) (2)]. . . . We decide only whether the judge abused
    his discretion or committed other error of law. . . .
    "A judge's discretion to reduce a verdict pursuant to
    rule 25 (b) (2) is appropriately exercised where the weight
    of the evidence in the case, although technically
    sufficient to support the jury's verdict, points to a
    lesser crime. Thus, for example, where evidence of
    premeditation was slim, the judge did not abuse his
    discretion in reducing a verdict of murder in the first
    degree to murder in the second degree. . . . Similarly,
    where the weight of the evidence suggests that the
    defendant did not act with malice, a murder verdict may be
    reduced to manslaughter. . . . We must examine, therefore,
    whether there was some weakness in the evidence, . . . that
    the defendant committed murder in the first degree and
    determine whether the judge was correct in concluding that
    the evidence is more consistent with a lesser form of
    homicide." (Quotations and citations omitted.)
    In addition, a judge considering a motion to reduce a verdict
    under rule 25 (b) (2) "may rely on essentially the same
    considerations as does this court when deciding whether to
    reduce a verdict to a lesser degree of guilt pursuant to G. L.
    c. 278, § 33E."   Commonwealth v. Reavis, 
    465 Mass. 875
    , 891
    (2013).
    The judge concluded that the weight of the evidence
    demonstrated a weakness in the Commonwealth's evidence
    concerning the defendant's ability to deliberately premeditate,
    thereby pointing to a lesser degree of homicide.   She based her
    11
    findings on the trial testimony of Dr. Kelly and "the materials
    presented and argued at the post-trial motion to reduce the
    verdict, including the report of Dr. Kelly."   The judge's
    findings of fact were as follows.
    At the time of the murder, the defendant was sixteen years
    of age and suffered from ADHD.   He came from an extremely
    dysfunctional family.   His mother was drug dependent and had
    used drugs during her pregnancy with the defendant.   When the
    defendant was eighteen months old, his mother abandoned the
    family, and the defendant was in foster care until three years
    of age.   Although there had been some limited contact with the
    mother over the years, the defendant essentially had no
    relationship with his mother.    The defendant's father, who was
    seventy-four years of age at the time of the murder, provided
    little parenting or guidance to the defendant, due in part to
    his age and his own medical problems.   Thus, the defendant had
    no adult supervision and spent most of his teen years on the
    streets with peers.   Despite these circumstances, the
    defendant's juvenile record consisted solely of an assault and
    battery by means of a dangerous weapon.   That event arose out of
    an argument that occurred with one member of the defendant's
    dysfunctional family.
    The defendant was diagnosed with ADHD at an early age and
    was treated with medication for the condition until he was
    12
    twelve years of age.    Since that time, his ADHD went untreated.
    In addition to ADHD, the defendant has suffered from untreated
    clinical depression from early childhood to the time of the
    murder.   His early school years were marked by disruptive
    behavior and poor performance.    In 2004, the defendant's father
    transferred guardianship of the defendant to his brother in
    California because the father was incapable of managing the
    defendant.   The brother could not manage the defendant and sent
    him back to Lowell.    In the spring of 2006, the defendant was
    expelled from Lowell High School.    Following the expulsion, the
    defendant was homeless until he went to live at Peddle's
    apartment a couple of weeks before the murder.
    The judge noted a "constellation of factors at play
    preceding and at the moment of the stabbing."    She found
    particularly significant that the defendant did not leave to
    procure a murder weapon (it was already there) and did not seek
    out the victim.
    In addition to the thin evidence of deliberate
    premeditation, the judge took into consideration the defendant's
    youth and turbulent background, as well as his medical history.
    Especially troubling to the judge was the fact that, at the time
    of the murder, the defendant's ADHD was not being treated.    The
    judge also credited Dr. Kelly's testimony that the defendant
    lacked the cognitive capacity to premeditate the killing as a
    13
    result of his untreated ADHD, inadequate adult supervision, and
    immature adolescent neurodevelopment.    The judge noted that the
    defendant's impulsiveness not only was affected by untreated
    ADHD, but also was exacerbated by his youth, familial neglect,
    and developmental immaturity.    She thus determined that a
    reduction of the verdict to murder in the second degree was more
    consonant with justice.
    As an initial matter, the Commonwealth correctly does not
    argue that the judge improperly considered the defendant's youth
    (and adolescent brain) and personal experiences (such as his
    untreated ADHD and troubled childhood) in reducing the verdict.
    The judge properly noted that the defendant's age and personal
    circumstances alone cannot warrant a reduction of the verdict.
    See Commonwealth v. Rolon, 
    438 Mass. 808
    , 825 (2003).     The
    judge, however, considered those factors in combination with the
    fact that the evidence of deliberate premeditation was slim, a
    permissible basis on which to reduce the verdict.    See 
    id. at 821,
    825; Commonwealth v. Ghee, 
    414 Mass. 313
    , 322
    (1993); Commonwealth v. Millyan, 
    399 Mass. 171
    , 188-189 (1987).
    The Commonwealth challenges the judge's assessment
    concerning the evidence of deliberate premeditation and her
    conclusion that it was weak.    The Commonwealth argues that the
    judge's determination that the defendant's actions reflected
    more spontaneity than deliberate premeditation, see Commonwealth
    14
    v. Tavares, 
    385 Mass. 140
    , 158-159, cert. denied, 
    457 U.S. 1137
    (1982) (reducing verdict to murder in second degree in part due
    to defendant's spontaneous, rather than planned, reaction to
    victim's alleged insults), was based on a mischaracterization of
    the sequence of the events preceding the stabbing.   We disagree.
    The judge's recitation of the facts correctly acknowledged
    that Apostolos was the only witness who testified that the
    victim, before the stabbing, had made a gesture to indicate that
    he had a gun.   She then went on to say that the defendant next
    abruptly jumped up from the mattress and stabbed the victim.
    While the word "next" in her findings did not necessarily
    exactly describe every witness account, the fact that the victim
    may have turned first or have spoken with someone about a
    cigarette before the defendant stabbed the victim, did not
    detract from the consistent witness testimony that the
    defendant's actions in jumping up from the mattress to stab the
    victim were unexpected to everyone there and were abrupt.    There
    was no evidence to the contrary, and the evidence bearing on the
    fact that the victim may have indicated that he had a gun or had
    started walking in the direction of the defendant bore on
    provocation, self-defense, or excessive use of force in self-
    defense, but not to the spontaneity of the incident.
    The Commonwealth also overlooks the other factors that the
    judge properly considered, including the fact that any motive on
    15
    the part of the defendant to retaliate against the victim for
    allegedly having broken the windows to the defendant's
    automobile weakened any suggestion of premeditation when the
    victim apologized to the defendant.    In addition, the knife was
    already in the apartment and the defendant did not have to leave
    to obtain it, see Commonwealth v. Keough, 
    385 Mass. 314
    , 320-321
    (1982), nor did he have to leave to seek out the victim.
    Further, the defendant inflicted just one stab wound to the
    victim.   See Commonwealth v. Garabedian, 
    399 Mass. 304
    , 317
    (1987) (consideration in favor of spontaneity, rather than
    deliberate premeditation, is whether defendant inflicted single
    blow or separate distinct acts capable of causing death).
    The Commonwealth argues that different inferences should
    have been drawn from this evidence.    The judge acknowledged that
    the evidence was sufficient to support the jury's verdict, but
    from the evidence and witnesses she heard firsthand, she was not
    foreclosed from considering the weight of the evidence and doing
    so in combination with compelling and uncontroverted testimony
    regarding the defendant's youth, adolescent brain, untreated
    ADHD, and troubled childhood, which served to mitigate the level
    of culpability. 14   See 
    Keough, 385 Mass. at 321
    .   The judge's
    14
    The Commonwealth contends that the judge erroneously
    relied on Dr. Kelly's testimony to find that the defendant's
    actions were impulsive and not deliberately premeditated because
    the evidence "indisputably supports that there was no threat to
    16
    decision reflects careful and serious deliberation.    We cannot
    say that she abused her discretion in determining, based on the
    facts of this case, that the lesser verdict of murder in the
    second degree was more consonant with justice.
    2.   Defendant's appeal.   a.   Failure to instruct on
    involuntary manslaughter.   The defendant argues that the judge
    erred in failing to instruct the jury on involuntary
    manslaughter based on his mental impairment of ADHD and
    depression in an adolescent brain.    Because the defendant did
    not specifically request an involuntary manslaughter instruction
    on this basis at trial, 15 or object to the charge on the ground
    of its absence on this basis, we review whether there was error
    and, if so, whether it created a substantial risk of a
    the defendant that night," such that the basis for Dr. Kelly's
    opinion testimony was unsupported. Again, the Commonwealth
    views the evidence only in a light favorable to it. There was
    testimony from Murphy that before the stabbing the victim walked
    toward the defendant. According to Apostolos, before the
    stabbing, the victim made a gesture by his waist indicating that
    he had a gun and told the defendant he was ready to use it.
    Just after the stabbing, a BB gun was found on the floor next to
    the victim. Viewing the evidence in the light most favorable to
    the defendant, the jury could have inferred from this evidence
    that the victim had reached for or had taken out the BB gun just
    before the stabbing. This permissible view of the evidence
    warranted the judge in instructing the jury on provocation,
    self-defense, and the use of excessive force in self-defense.
    There was an evidentiary basis for Dr. Kelly's opinion
    testimony.
    15
    The defendant requested an involuntary manslaughter
    instruction at trial on the basis that the defendant's conduct
    was reckless.
    17
    miscarriage of justice. 16   See Commonwealth v. Randolph, 
    438 Mass. 290
    , 297-298 (2002).    An involuntary manslaughter
    instruction is required if the evidence warrants a jury in
    finding the defendant guilty of that offense.    Commonwealth
    v. Horne, 
    466 Mass. 440
    , 444 (2013).    In this case, however,
    there was no error because the evidence supported only a finding
    of malice, thus precluding an instruction on manslaughter.
    "Malice is what distinguishes murder from
    manslaughter."    Commonwealth v. Vizcarrondo, 
    427 Mass. 392
    , 396
    (1998), S.C., 
    431 Mass. 360
    (2000).    The distinction means that
    a verdict of manslaughter is possible only in the absence of
    malice.   See Commonwealth v. Judge, 
    420 Mass. 433
    , 437 (1995)
    ("Without malice, an unlawful killing can be no more than
    manslaughter").   "To prove malice, the Commonwealth must prove
    one of three prongs:   (1) an intent to kill the victim; (2) an
    intent to cause grievous bodily harm to the victim; or (3)
    commission of an act that, in the circumstances known to the
    defendant, a reasonable person would have known created a plain
    and strong likelihood of death."    Commonwealth v. Riley, 
    467 Mass. 799
    , 821-822 (2014).    By contrast, involuntary
    manslaughter is "the unintentional result of an act committed
    with such disregard of its probable harm to another as to amount
    16
    We use the substantial risk of a miscarriage of justice
    standard because we affirm the defendant's conviction of murder
    in the second degree, not murder in the first degree.
    18
    to wanton or reckless conduct." 17   Commonwealth v. Souza, 
    428 Mass. 478
    , 492-493 (1998), quoting Commonwealth v. Nichypor, 
    419 Mass. 209
    , 217 (1994).   In the context of involuntary
    manslaughter, wanton and reckless conduct 18 is "intentional
    conduct that create[s] a high degree of likelihood that
    substantial harm will result to another person."    Commonwealth
    v. Chambers, 
    465 Mass. 520
    , 536 n.15 (2013).    See Commonwealth
    v. Horne, 
    466 Mass. 440
    , 443 n.2 (2013), and cases cited.
    No view of the evidence adduced at trial supports the
    argument that the defendant's conduct was merely wanton and
    reckless, and not intentional.   The degree of the risk of
    physical harm that a reasonable person would recognize was
    created by the defendant's conduct is simply not compatible with
    the "high degree of likelihood that substantial harm will result
    to another person" associated with wanton and reckless conduct.
    17
    "A verdict of involuntary manslaughter is possible only
    where the defendant caused an unintentional death (1) during the
    commission of an act amounting to wanton or reckless conduct, or
    (2) during the commission of a battery." Commonwealth v.
    Brooks, 
    422 Mass. 574
    , 578 (1996). At trial, the defendant
    argued on the wanton and reckless conduct prong only, conceding
    that the basis for doing so was "weak."
    18
    "This court has described conduct amounting to
    involuntary manslaughter as both 'wanton or reckless' and
    'wanton and reckless.'" Commonwealth v. Tavares, 
    471 Mass. 430
    ,
    437 n.13 (2015), citing Commonwealth v. Chase, 
    433 Mass. 293
    ,
    301 (2001). "Expressed either way, the words articulate a single
    standard, not two." 
    Tavares, supra
    , citing 
    Chase, supra
    .
    19
    Here, the defendant had to bypass Apostolos in order to
    reach the victim and then, after punching him, stabbed him in
    the abdomen with a knife having an eight-inch blade.    Stabbing
    someone in the abdomen with an eight-inch blade involves an
    obvious risk of harm consistent with second or third prong
    malice and not just a risk of substantial harm that would
    warrant an involuntary manslaughter instruction.
    See Commonwealth v. Sanna, 
    424 Mass. 92
    , 105 (1997) (when
    obvious that risk of physical harm to victim created plain and
    strong likelihood that death will follow, instruction on
    involuntary manslaughter not required). 19   Contrast Commonwealth
    v. Tavares, 
    471 Mass. 430
    , 438-439 (2015) (where defendant
    "simply pointed the gun at [the victim] and then backed away").
    The defendant argues that because of his mental impairment,
    any intent required for murder is vitiated, thus providing a
    basis for the jury to find him guilty of the lesser included
    19
    "The difference between the elements of the third prong
    of malice and wanton and reckless conduct amounting to
    involuntary manslaughter lies in the degree of risk of physical
    harm that a reasonable person would recognize was created by
    particular conduct, based on what the defendant knew. The risk
    for the purposes of the third of prong malice is that there was
    a plain and strong likelihood of death . . . . The risk that
    will satisfy the standard for wilful and wanton conduct
    amounting to involuntary manslaughter 'involves a high degree of
    likelihood that substantial harm will result to another.'"
    Commonwealth v. Vizcarrondo, 
    427 Mass. 392
    , 396 (1998), S.C.,
    
    431 Mass. 360
    (2000), quoting Commonwealth v. Sires, 
    413 Mass. 292
    , 303 n.14 (1992).
    20
    offense of involuntary manslaughter.      We previously have
    rejected an argument similar to that advanced here by the
    defendant involving a defendant's involuntary chemical
    intoxication.     See Commonwealth v. Garabedian, 
    399 Mass. 304
    ,
    315-316 (1987).    There, we explained that the issue of
    involuntary intoxication at the time of the killing "goes to the
    question of criminal responsibility and not to the issue of
    involuntary manslaughter."     
    Id. at 316.
      The same can be said
    here with evidence of mental impairment.     Even if a mental
    impairment negates malice, a necessary element of murder, a
    defendant would not be entitled to an instruction on involuntary
    manslaughter.     "A killing without malice aforethought does not
    automatically constitute involuntary
    manslaughter."     Commonwealth v. Sires, 
    413 Mass. 292
    , 302
    (1992).   Before an instruction on involuntary manslaughter may
    be given, the defendant would be required to adduce evidence of
    the "traditional elements" of involuntary manslaughter that the
    jury might believe.     
    Id. at 302-303.
      As we have said, no such
    evidence was presented to the jury. 20
    20
    Cases of involuntary manslaughter require proof of
    intentional wanton or reckless conduct, resulting in an
    unintentional killing, and not proof of intentional conduct
    bearing on a specific intent to kill or a specific intent to
    injure. See Commonwealth v. Walker, 
    442 Mass. 185
    , 203 (2004).
    See Commonwealth v. Welansky, 
    316 Mass. 383
    , 398 (1944) ("What
    must be intended is the conduct, not the resulting harm").
    21
    Even if, however, the failure to give the instruction on
    the basis now argued was error, it was not one likely to have
    created a substantial risk of a miscarriage of justice.     As
    in Commonwealth v. Tolan, 
    453 Mass. 634
    , 650 (2009), the jury
    "rejected the option of murder in the second degree, the malice
    element of which comes closest to involuntary manslaughter,"
    namely "an intent to do an act that in the circumstances known
    to the defendant, a reasonable person would have known created a
    plain and strong likelihood that death will result."     
    Id. See Commonwealth
    v. Novo, 
    449 Mass. 84
    , 99 (2007).     "In finding
    the defendant guilty of murder in the first degree [based on
    deliberate meditation only], the jury necessarily found that the
    defendant had both a specific intent to kill and that the
    shooting was premeditated."    
    Tolan, supra
    .   "These findings
    negate the possibility of involuntary manslaughter."     
    Id. See Commonwealth
    v. Diaz, 
    431 Mass. 822
    , 831 (2000) (conviction
    of murder in first degree negates claim of prejudice in denying
    instruction for involuntary manslaughter).
    b.    Motion for a new trial.   We reject the defendant's
    claim of a public trial violation.    The claim was procedurally
    waived, see Commonwealth v. Jackson, 
    471 Mass. 262
    , 268-269
    (2015), and no prejudice has been shown to have arisen from the
    closure.    See Commonwealth v. LaChance, 
    469 Mass. 854
    , 858-859
    (2014).    Thus, there also is no merit to the defendant's claim
    22
    of ineffective assistance of counsel predicated on defense
    counsel's failure to object to the closure that occurred.    
    Id. Conclusion. The
    orders reducing the verdict and denying
    the defendant's motion for a new trial are affirmed.   The
    defendant's conviction is affirmed.
    So ordered.