Joshv02 said:
No, the basis of appeal on that theory would be "was there sufficient evidence such that a reasonable jury could find the circumstances of this killing indicate extreme cruelty." Whether or not a mere six shots is enough is immaterial, even if one of the jurors said it. The verdict sheet indicate extreme cruelty as the basis, which is all that really matters for the appeal.
A few general thoughts on appeals, since it's the area I tend to know most, although not criminal cases. The above is an important point that I think appellate lawyers really have trouble explaining. Trials are conducted in a certain way. The entire case can be constructed so that everyone basically understands that the basis for the extreme cruelty allegation is the six shots. Both sides can completely prepare their case that way. The prosecution can argue that's the basis for it. The defense can cross-examine dozens of witnesses trying to rebut the point. It can come up in arguments over the indictment, pre-trial, at trial, at arguments about jury instructions, and everyone in the room can have a general understanding that it is what the fight is all about. Every juror can be interviewed on tv and say, "yeah, we found extreme cruelty based on the six shots." On appeal, though, this pretty much goes out the window. The Commonwealth is fully within its rights to say, "In Commonwealth v. Bonaparte, this court held that callousness after the fact is evidence of extreme cruelty," and then argue that there was evidence in the record from which a reasonable jury could find callousness. The fact that everyone who participated in the trial knows that's not how the case was ever argued really doesn't help much.
Now, I say, "doesn't help much," because this is kind of true as a legal matter, but that doesn't mean that the defense wouldn't have the ability to make strong rhetorical points -- which often color how courts of appeals see the legal issues. For example, if the Commonwealth never ever suggested callousness as a basis for extreme cruelty -- in closing, during jury instructions, whatever -- the way you argue this on appeal is something like: "There is no evidence from which a reasonable jury could have found callousness. If there were any doubt about the point, it's removed by the Commonwealth's own strategy. It never -- in supporting the indictment, arguing to the jury, arguing jury instructions, etc. -- mentioned this as a basis for extreme cruelty."
(This is just an example, since Joe has found cases that say that number of shots is enough, but the point is you are not limited on appeal to some narrative that everyone understood was the primary narrative at trial. This works on both the appellant and appellee side.)
Given the authority for extreme cruelty, it seems to me that the only viable (and it's not that viable) way to try to make this issue appealable is to suggest that there is some inconsistency in the verdict. That is, you argue that it might be true, that on some facts, the number of shots fired would be a basis for extreme cruelty. Here, however,
on these particular facts as the evidence was put before the jury and based on the way that
they were instructed about premeditation, no reasonable jury could have found extreme cruelty but fail to find premeditation. That is, since they were instructed that premeditation does not require a long period of reflection, and can actually be formed in a second, taking all the evidence in this case including the position of the body, the type of gun used and the number of shots fired, there is simply no space between a finding of extreme cruelty and premeditation. This shows that the jury was hopelessly confused about its instructions and the difference between the two bases for M1, and thus a retrial is needed.
I'm not saying this is a good argument. In fact, it's a shitty one. Indeed, it's probably inconsistent with the evidence, and more problematic, it or something like it may not be available to the defense on appeal. Generally, you can't appeal stuff you didn't the give the judge a chance to correct, and arguments about inconsistency have to be adequately preserved in the arguments about jury instructions (If, however, the defense objected to having the two lines on there, that may be enough.) This is more about how to try to craft arguments that have a chance of success on appeal. If you can't find a legal error -- that is, a situation where something was done that is flatly inconsistent with existing law or the law as you think it should be or is in other jurisdictions -- then you have to give the court of appeals something to chew on that is more substantial than "the evidence doesn't support," although if that is all you got you ride that horse as hard as you can.