COMMONWEALTH vs. KEVIN P. SULLIVAN.

MARSHALL, J. Kevin P. Sullivan appeals from the denial of his motion for a new trial, following his convictions in 1986 of murder in the second degree and assault and battery by means of a dangerous weapon. He argues that, in light of our subsequent holding in Commonwealth v. Sama, 411 Mass. 293, 298-299 (1991), he is entitled to a new trial because the jury were not permitted to consider evidence of his intoxication with respect to

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the third prong of malice, [Note 1] although he requested an instruction to that effect. We disagree. Even if the rule announced in Sama was retroactively applicable to this case, which it is not, the rule would not aid this defendant.

1. On June 20,1983, a jury convicted the defendant of murder in the second degree and assault and battery by means of a dangerous weapon. His convictions were reversed by the Appeals Court because, in a supplementary charge to the jury, the trial judge erroneously undertook to quantify the concept of reasonable doubt. Commonwealth v. Sullivan, 20 Mass. App. Ct. 802, 804-807 (1985) (Sullivan I). When he was retried in 1986, the defendant again was convicted on both indictments. [Note 2] During his second trial the defendant requested an instruction that would have allowed the jury to consider evidence of his intoxication as it related generally to his malice aforethought, the mental element of the charge of murder. [Note 3] The judge denied his request, and instructed the jury to consider the evidence of the defendant's intoxication on the first two prongs of malice only. [Note 4] The defen-

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dant objected, arguing that "as a matter of due process the defendant is entitled to have the jury consider his intoxication upon the third prong as well."

On direct appeal from the convictions at his second trial, the Appeals Court concluded that the judge's instructions on intoxication challenged by the defendant were valid, and affirmed the convictions. Commonwealth v. Sullivan, 29 Mass. App. Ct. 93, 99 (1990) Sullivan (II). Subsequently, in 1991, we announced our decision in Sama, supra, holding that a defendant is entitled to have the jury consider evidence of his intoxication when deciding whether he acted with malice aforethought under the third prong of malice. In 1993, relying on the rule announced in Sama, the defendant filed a motion for a new trial pursuant to Mass. R.

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Crim. P. 30 (b), 378 Mass. 900 (1979). In Commonwealth v. Gagliardi, 418 Mass. 562, 566 (1994), cert. denied, 513 U.S. 1091 (1995), we held that the rule announced in Sama, supra, is not to be applied retroactively to cases on collateral review. Relying on that decision, the defendant's motion was denied by a judge in the Superior Court on November 14, 1994. The defendant appealed, and we transferred this case to this court on our own motion.

2. The facts of this case are described in Sullivan (1), supra at 803:

"Among the patrons who had been ushering in the new year, 1983, at the Stephen James House in Porter Square, Cambridge, were the victims and the defendant Sullivan. Their celebration had been characterized by ample drinking, particularly on the part of Sullivan. At about 1:45 A.M., Sullivan and his wife emerged from the restaurant arguing, Sullivan resorting to blows and shoves. Grimes and Kelly, who did not know the Sullivans, intervened in what they perceived as a wife-beating episode. There was a fight. Sullivan pulled a knife with which he stabbed Grimes fatally and Kelly much less severely." (Footnote omitted.)

At his initial trial and at his retrial the defendant admitted stabbing Grimes and Kelly and asserted that he acted in defense of himself and his wife. He gave a blow-by-blow account of the fight between himself and the victims. [Note 5]

The defendant argues (as he did on direct appeal) that at his second trial the judge erred by instructing the jury that evidence of his state of intoxication did not bear on the jury's consideration of the third prong of malice; because the jury instructions should

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have been, but were not, consistent with the rule we subsequently articulated in Sama, supra, he says that he is now entitled to a new trial. We disagree. Even were the defendant entitled to a Sama instruction, the omission was not prejudicial to him.

We established in Commonwealth v. Sama, supra at 298, that "[u]nder the third prong of malice, the Commonwealth must establish the guilty knowledge of the defendant beyond a reasonable doubt, and evidence of a defendant's intoxication should be considered by the jury" (in original). In that case, the defendant "presented credible evidence of debilitating intoxication bearing on his ability to possess meaningful knowledge of the circumstances" of the killing. Sama, supra at 299. [Note 6] In Commonwealth v. Sires, 413 Mass. 292, 299 (1992), we elaborated our holding in Sama, and said that a Sama error would not require reversal of a defendant's conviction, "if there was no evidence that the defendant did not know what he was doing at the time of the killing." In Commonwealth v. Sanna, 424 Mass. 92,102 (1997), we explained that "[t]he question is, therefore, whether there is evidence which would warrant a jury finding that the defendant was unaware of the circumstances of the homicide at the time of the act." In short, evidence of intoxication is relevant only if it concerns the defendant's knowledge of the circumstances of the killing; where there is no evidence that due to intoxication the defendant did not know the circumstances of the killing, the omission of a Sama instruction, although error, would not constitute prejudicial error. [Note 7] Commonwealth v. Sanna, supra at 101-102. See Commonwealth v. Sama, supra at 298. Here, there was no issue before the jury that the defendant's state of intoxication affected his knowledge of the circumstances of the homicide and any omission of a Sama instruction would not have been prejudicial. See Commonwealth v. Sires, 413 Mass. 292,

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298-300 (1992) (omission of Sama instruction not prejudicial error where defendant gave detailed account of his actions when he shot his mother); Commonwealth v. Delaney, 418 Mass. 658, 668 (1994) (omission of Sama instruction did not give rise to substantial likelihood of miscarriage of justice where defendant knew he was strangling victim, but believed victim was enemy soldier); Commonwealth v. Costa, 414 Mass. 618, 628 (1993) (omission of Sama instruction was not reversible error where evidence "supports the conclusion that the defendant was capable of having the knowledge required").

Furthermore, we determined in Commonwealth v. Gagliardi, supra at 566, that the new rule announced in Sama, supra, would not apply retroactively when raised on a collateral appeal such as here. [Note 8] The defendant does not challenge our holding in Commonwealth v. Gagliardi, but invites us to recognize a further exception to the rule against the retroactive application of new criminal rules, an exception applicable to those cases on collateral appeal where an issue subsequently resolved as a new criminal rule was raised and preserved by a defendant at trial. We decline to do so.

In Commonwealth v. Bray, 407 Mass. 296, 299-303 (1990), we followed the Federal rule on the retroactive application of a new criminal rule to a case on collateral review as described by the Supreme Court in Teague v. Lane, 489 U.S. 288 (1989): where a conviction is final, and the defendant is proceeding with a collateral challenge, new criminal rules "should not be applied retroactively . . . unless they fall within either of two very limited exceptions." Bray, supra at 300. [Note 9] As we determined in Commonwealth v. Gagliardi, supra, the Sama rule does not fall

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into either exception, and we see no reason to depart from our decision in Gagliardi in this case.

Order denying motion for new trial affirmed.