Massachusetts Appeals Court September 12, 2002, No. 99-P-1088 (Commonwealth v. Lapointe)

Duffly, J.

(dissenting, with whom Gillerman, J., joins). The majority acknowledges that the instruction with regard to third prong malice was error because of the reference to grievous bodily harm, but concludes that there was no substantial risk of *807a miscarriage of justice, citing the strength of the Commonwealth’s case and evidence that the defendant purposefully returned to the scene with