COMMONWEALTH vs. KEVIN BRAY.

O'CONNOR, J. On May 13, 1983, a jury found the defendant guilty of murder in the second degree and of assault by means of a dangerous weapon (two counts). After sentences were imposed, the defendant appealed, and on May 1, 1985, the Appeals Court affirmed the convictions. Commonwealth v. Bray, 19 Mass. App. Ct. 751 (1985). Subsequently, the defendant filed a pro se motion, later amended with the assistance of counsel, for a new trial of the murder indictment. The trial judge denied the amended motion, and the defendant appealed. We granted the defendant's application for direct appellate review. We now affirm the denial of the motion for a new trial.

The defendant's motion was grounded on two claims of error in the judge's jury instructions, only one of which is asserted on appeal. The defendant contends that the judge erred by instructing the jury that evidence of a defendant's intoxication is irrelevant to the question of malice in murder. The defendant says that the judge should have instructed the jury in a manner consistent with the rule this court subsequently articulated in Commonwealth v. Grey, 399 Mass. 469 (1987), and that counsel's failure to raise that issue either at trial or in the first appeal constituted ineffective assistance of counsel. [Note 1] In Grey, we held that evidence of a defendant's mental impairment is relevant and admissible on the question of malice, id. at 470-471, and in Commonwealth v. Glass, 401 Mass. 799, 809-810 (1988), we made clear that mental impairment includes impairment due to intoxication.

In denying the motion for a new trial, the judge addressed the defendant's challenge to the intoxication instruction, and thus, for that reason alone, the question is properly before us.

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Commonwealth v. McLaughlin, 364 Mass. 211, 229-231 (1973). The judge acknowledged that, according to the law declared in Grey subsequent to the trial, the jury instruction was incorrect, but he concluded that the Grey rule should not be applied retroactively to the defendant's trial. We agree.

In Commonwealth v. Breese, 389 Mass. 540 (1983), relying on United States Supreme Court decisions, we laid out an analytical framework for determining whether decisional law should apply retroactively to earlier trials or should operate prospectively only. We stated that decisional law is usually retroactive, but, if the decision announces a new rule, it may apply prospectively only. Id. at 541. Whether a new rule will apply prospectively only, we said, depends on a three-part test. Id. That test, which originated in Linkletter v. Walker, 381 U.S. 618, 636 (1965), implicates the following criteria: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards." Stovall v. Denno, 388 U.S. 293, 297 (1967). Brown v. Louisiana, 447 U.S. 323, 328 (1980) (plurality opinion of Brennan, J.). Breese, supra at 548.

We made no suggestion in Breese, which was an appeal from the denial of a motion for a new trial after final judgment (collateral review), that application of the three-part retroactivity test was limited to collateral appeals. In fact, the Supreme Court had declared in Stovall v. Denno, supra at 300, that "no distinction is justified between convictions now final . . . and convictions at various stages of trial and direct review." The Court characterized such a distinction as "unsupportable." Id. at 300-301. See Griffith v. Kentucky, 479 U.S. 314, 329 (1987) (White, J., with whom Rehnquist, C.J., and O'Connor, J., joined, dissenting).

In cases subsequent to Breese, the Supreme Court has sharply distinguished between cases on direct review or in which the conviction has not become final and cases on collateral review. In Griffith v. Kentucky, supra, which involved two cases in which the defendants' convictions had not become

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final, the Supreme Court was asked to decide whether the petitioners, one of whom had been convicted in a State court proceeding and the other of whom had been convicted in a Federal District Court, should receive the benefit of the Supreme Court's decision in Batson v. Kentucky, 476 U.S. 79 (1986). After the convictions in Griffith, but before the time for appellate review had expired, Batson overruled a portion of Swain v. Alabama, 380 U.S. 202 (1965), thereby making it much easier for a criminal defendant to establish a prima facie case of racial discrimination by a prosecutor in jury selection than it had been under Swain. The Court held in Griffith that a new criminal rule, such as the rule announced in Batson, applies retroactively to all cases, State and Federal, pending on direct review or in which the conviction is not yet final. Griffith, supra at 320-328. The Court reasoned that, after it has declared a new rule in a particular case, "the integrity of judicial review" requires that that rule be applied by the Supreme Court and all lower courts to all similar cases which have not gone to final judgment. Id. at 323. "[S]elective application of new rules," the Court concluded, "violates the principle of treating similarly situated defendants the same." Id. Thus, the Court moved away from the Linkletter-Stovall three-part test in its resolution of the retroactivity question in cases in which judgment had not become final.

Then came Teague v. Lane, 489 U.S. 288 (1989), a case involving collateral review. After an unsuccessful State court appeal, the defendant filed a habeas corpus petition in the Federal District Court. Among other things, he argued that the rule of Taylor v. Louisiana, 419 U.S. 522 (1975), holding that the Sixth Amendment to the United States Constitution requires that the jury venire be drawn from a cross section of the community, should be extended to the petit jury as well. The District Court denied the petition, and the Court of Appeals for the Seventh Circuit affirmed. The Supreme Court affirmed without addressing the Sixth Amendment question, concluding that a rule that would extend the fair cross section requirement to the petit jury should in no

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event be applied retroactively to cases on collateral review. The Court did not apply the three-part test.

In Teague, supra at 302-305, Justice O'Connor, joined by the Chief Justice, Justice Scalia, and Justice Kennedy, discussed the inconsistent and unsatisfactory results produced by the three-part test approach. The Court also focused on the importance of the "principle of finality which is essential to the operation of our criminal justice system." Id. at 309. "Without finality," Justice O'Connor wrote, "the criminal law is deprived of much of its deterrent effect." Id. Justice O'Connor then announced the adoption, with one modification, of Justice Harlan's view of retroactivity for cases on collateral review. Id. at 311. That view, which had been expressed earlier by Justice Harlan in separate opinions in Mackey v. United States, 401 U.S. 667, 675 (1971), and Desist v. United States, 394 U.S. 244, 256 (1969), was that new constitutional rules should not be applied retroactively to criminal cases on collateral review unless they fall within either of two very limited exceptions. "The first exception [is] that a new rule should be applied retroactively if it places `certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.' . . . The second exception [is] that a new rule should be applied retroactively if it requires the observance of `those procedures that . . . are implicit in the concept of ordered liberty.'" Teague, supra at 311, quoting Mackey, supra at 692. The plurality in Teague modified the second Harlan exception by limiting its scope "to those new procedures [of fundamental fairness] without which the likelihood of an accurate conviction is seriously diminished." Teague, supra at 312-313.

Since Teague was decided, the Supreme Court has twice reiterated the retroactivity rule that that decision announced. In Penry v. Lynaugh, 109 S. Ct. 2934, 2944 (1989), a capital case, the Court stated: "Because Penry is before us on collateral review, we must determine, as a threshold matter, whether granting him the relief he seeks would create a `new rule.' Teague v. Lane, [supra]. Under Teague, new rules will

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not be applied or announced in cases on collateral review unless they fall into one of two exceptions. Id. at [311] . . . ." See Butler v. McKellar, 110 S. Ct. 1212 (1990).

It is appropriate for us to consider whether in Commonwealth v. Grey, supra, we announced a new criminal rule and, if so, whether that rule falls within one of the exceptions discussed in Teague. In Grey, supra at 470-471, we held that evidence of a defendant's mental impairment (including impairment due to intoxication, see Commonwealth v. Glass, 401 Mass. 799, 809-810 [1988]), is relevant to the question of malice in murder. "In general . . . a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government . . . . To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final" (emphasis in original). Teague v. Lane, supra at 301.

For several years before Grey was decided, a defendant's mental illness or impairment due to intoxication by drugs or alcohol was recognized in our decisions as being relevant to a consideration of whether a murder that had been committed was committed after deliberate premeditation or with extreme atrocity or cruelty, and was, therefore, murder in the first degree. See Commonwealth v. Perry, 385 Mass. 639, 648-649 (1982); Commonwealth v. Gould, 380 Mass. 672, 680-681 (1980), and cases cited. However, our jurisprudence also contains a long line of cases that hold that a defendant's intoxication "does not relieve his actions of their malicious quality in law." Commonwealth v. Huot, 380 Mass. 403, 410 (1980), quoting Commonwealth v. McGuirk, 376 Mass. 338, 346 (1978), cert. denied, 439 U.S. 1120 (1979). See, e.g., Commonwealth v. Rollins, 354 Mass. 630, 634-635 (1968); Commonwealth v. Rogers, 351 Mass. 522, 532-533, cert. denied, 389 U.S. 991 (1967). Thus, until our decision in Commonwealth v. Henson, 394 Mass. 584 (1985), which we discuss below, our precedent at least hinted that mental impairment, whether or not due to voluntary intoxication, was relevant only to the degree of murder and not to the

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proof of murder itself. In fact, even after our decision in Henson, we observed in Commonwealth v. Dunton, 397 Mass. 101, 103 (1986), that "[i]n no case have we recognized mental impairment as a ground for negating the element of malice in prosecutions for murder."

In Commonwealth v. Henson, supra, a case involving an indictment for assault with intent to murder, which requires proof of a specific intent to kill, id. at 590-591, we announced the rule that, where proof of a crime requires a specific criminal intent and there is evidence tending to show that the defendant was under the influence of alcohol or some other drug at the time of the crime, the judge, if requested, should instruct the jury that they may consider that evidence in deciding whether the prosecution has proved that specific intent beyond a reasonable doubt. Id. at 592-594.

A killing may be established as murder by proof of an unjustified and unexcused specific intent to kill or grievously harm the victim, but such a specific intent need not be shown. Malice in murder may also be shown by proof that, "in the circumstances known to the defendant, a reasonably prudent person would have known that according to common experience there was a plain and strong likelihood that death would follow the contemplated act." Commonwealth v. Grey, 399 Mass. 469, 470 n.1 (1987). Henson "dictated" for the future the rule that mental impairment is relevant to proof of crimes requiring specific intent. It did not, however, dictate that mental impairment may be relevant to proof of murder, particularly in light of the precedent in this Commonwealth, discussed above, that suggested that mental impairment was relevant to the degree of murder but "d[id] not relieve [a defendant's] actions of their malicious quality in law." Commonwealth v. McGuirk, supra at 346. Our decision in Grey was consistent with, and even a logical extension of, the rule announced in Henson, but, as Chief Justice Rehnquist wrote in Butler v. McKellar, supra at 1217, "the fact that a court says that its decision is within the `logical compass' of an earlier decision, or indeed that it is `controlled' by a prior decision, is not conclusive for purposes of deciding whether

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the current decision is a `new rule' under Teague." We conclude that the rule announced in Grey was not "dictated by precedent existing at the time the defendant's conviction became final" (emphasis in original), Teague v. Lane, supra at 301, and that it was a new rule for purposes of retroactivity analysis. Therefore, we turn our attention to the question whether either of the exceptions announced in Teague calls for Grey's retroactivity.

The first exception -- that a new rule should be applied retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe," Teague, supra at 311, quoting Justice Harlan's separate opinion in Mackey v. United States, 401 U.S. 667, 692 (1971) -- clearly does not apply. The second exception is that a new rule should be applied retroactively if not to do so would "undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction." Teague, supra at 315. For the exception to apply, the new rule, whether constitutionally based or not, must be "central to an accurate determination of innocence or guilt" in the "basic due process" sense. Id. at 313. In Teague, the Court concluded that a new rule that would extend the requirement that jury venires be comprised of a fair cross section of the community to petit juries would not be the type of "`bedrock procedural element'" that would be applied under the second exception. Id. at 315. Surely, the new rule announced in Grey, that a jury may consider a defendant's mental impairment as one factor bearing on malice in murder, does not fall within Teague's second exception. We conclude that the defendant is not entitled to the benefit of the Grey rule, and we affirm the denial of the defendant's motion for a new trial.

So ordered.