## Facts

- Thomas S. Levesque and Julie Ann Barnes lived for months in a vacant, five-story Worcester warehouse with a compartmentalized, windowless interior that was difficult to traverse and fight fires in.
- Their second-floor room contained ordinary items and used candles, flashlights, and a kerosene heater due to lack of electricity.
- During an altercation on December 3, 1999, a lit candle was knocked over, starting a fire in their room.
- Defendants tried unsuccessfully to extinguish the fire; it spread until the room was fully involved.
- Defendants left the building without notifying authorities, despite having an operable cellular phone and multiple opportunities to call for help.
- About two hours later, a passerby reported the fire; firefighters responded, were told there might be people inside, and entered to search.
- Six firefighters died during the firefighting and rescue operation.
- A grand jury indicted each defendant on six counts of involuntary manslaughter based on starting the fire and failing to report it.

## Issues

1. Whether grand jury evidence that defendants accidentally started a fire and then failed to report it, despite means and opportunity, was sufficient to establish probable cause for involuntary manslaughter based on wanton or reckless conduct by omission.
2. Whether the indictments had to be dismissed due to alleged impairment of grand jury proceedings from omitted exculpatory evidence, assertedly misleading presentation, or allegedly defective indictment form.

## Decision

- The court reversed the order dismissing the indictments and remanded for further proceedings.
- The evidence, viewed favorably to the Commonwealth, supported probable cause that defendants committed involuntary manslaughter.
- Defendants’ creation of a life-threatening risk supported a duty to take reasonable steps to mitigate that risk, including summoning assistance.
- A grand jury could find wanton or reckless conduct where defendants knowingly left an escalating fire unreported and thereby increased foreseeable risks to responders.
- The court rejected claims that the grand jury process was impaired; the asserted omissions and inaccuracies were not materially misleading or likely to affect the decision to indict, and the indictment form was adequate.

## Legal Principles

- When a defendant’s conduct creates a life-threatening risk to others, the defendant has a duty to take reasonable steps to alleviate or mitigate the danger; failure to act may support criminal liability when closely connected to the prior risk-creating conduct.
- Involuntary manslaughter may be based on wanton or reckless conduct by omission where the defendant knowingly disregards a high degree of likelihood that substantial harm will result.
- For grand jury review, the question is probable cause, not proof beyond a reasonable doubt; evidentiary conflicts and gaps generally do not warrant dismissal if the elements are supported.
- The prosecution is not generally required to present all exculpatory evidence to a grand jury; dismissal is warranted only when an omission would probably have affected the decision to indict.
- Indictments are sufficient if they adequately inform the defendant of the offense and its elements.

## Conclusion

The court held that causing a dangerous warehouse fire triggered a duty to take reasonable steps to reduce the risk, and that a deliberate failure to report the fire could constitute wanton or reckless conduct supporting involuntary manslaughter indictments; it also held that the grand jury proceedings were not materially compromised.


Commonwealth v. Levesque, 436 Mass. 443, 766 N.E.2d 50 (2002)