Commonwealth v. Silva , 471 Mass. 610 ( 2015 )


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    SJC-11096
    COMMONWEALTH   vs.   ROBERT SILVA.
    Plymouth.      February 6, 2015. - June 11, 2015.
    Present:   Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.
    Homicide. Robbery. Felony-Murder Rule. Joint Enterprise.
    Search and Seizure, Warrant, Expectation of privacy,
    Clothing. Constitutional Law, Search and seizure, Privacy.
    Malice. Intent. Practice, Criminal, Capital case, Motion
    to suppress, Instructions to jury, Argument by prosecutor,
    Presumptions and burden of proof.
    Indictments found and returned in the Superior Court
    Department on March 23, 2007.
    A pretrial motion to suppress evidence was heard by Paul E.
    Troy, J., and the cases were tried before Richard J. Chin, J.
    Chauncey B. Wood for the defendant.
    Mary E. Lee, Assistant District Attorney, for the
    Commonwealth.
    BOTSFORD, J.    The defendant, Robert Silva, stands convicted
    of murder in the first degree on theories of extreme atrocity or
    2
    cruelty and felony-murder, and also of armed robbery.1      He
    appeals the convictions, arguing that (1) his motion to suppress
    evidence of his sneakers and evidence derived from blood found
    on his sneakers was improperly denied; (2) the trial judge erred
    in instructing the jury on the theory of joint venture liability
    where the Commonwealth's exclusive argument was that the
    defendant was guilty as a principal; (3) the judge also erred in
    denying the defendant's request for an instruction on
    involuntary manslaughter; and (4) the prosecutor improperly
    shifted the burden of proof in her closing argument.       Finally,
    the defendant argues that he is entitled to relief under G. L.
    c. 278, § 33E.    We affirm the defendant's convictions.
    Background.    1.   Facts.   We summarize the facts that the
    jury could have found at trial.2     During the afternoon of June 9,
    2004, the defendant and Eric Pimental, both eighteen years old,
    were walking together on a path in the woods in Wareham.         They
    encountered Thomas Loftus, the victim, who was intoxicated,3 and
    1
    The convictions followed the defendant's second trial
    before a jury on these charges; the first trial ended in a
    mistrial when the jury could not agree on verdicts.
    2
    Some of the evidence presented at the hearing on the
    defendant's motions to suppress, and the judge's findings of
    fact based on that evidence, are relevant to the defendant's
    appeal. We summarize them later in connection with our
    discussion of the claims raised by the defendant.
    3
    The victim's blood alcohol level was .278.
    3
    they agreed that they would "roll" him.4   After Pimental knocked
    the victim down to the ground, both Pimental and the defendant
    began to kick the victim, and the defendant jumped on the
    victim's chest.   The defendant later stated to David Belmore, a
    fellow inmate of the Plymouth County correctional facility
    (PCCF), "You should have seen [the victim's] eyes bug out when I
    jumped on his chest," and that he and Pimental knew the victim
    was dead when his eyes ceased to move.5    The two men moved the
    victim's body off the path, and the defendant and Pimental took
    the victim's backpack, his money, and other items the victim was
    carrying on his person.   The defendant ended up carrying
    Pimental's camouflage-colored backpack with the victim's black
    backpack inside of it; Pimental ended up with the victim's
    money.   Before leaving the woods, the defendant and Pimental
    encountered Kathy Browne, who was walking on the same path in
    the woods with her young son.   They spoke briefly together, and
    Browne noticed blood on Pimental's legs.    The defendant and
    4
    There was no evidence that either the defendant or Eric
    Pimental knew the victim; in talking to another inmate at the
    Plymouth County correctional facility (PCCF) some years later,
    the defendant described the victim as "the guy" he and Pimental
    encountered on the path.
    5
    David Belmore testified as a witness on behalf of the
    Commonwealth at trial. He had entered into a cooperation
    agreement with the Commonwealth on April 2, 2010, that was
    thoroughly explored by the defendant's counsel in his cross-
    examination of the witness.
    4
    Pimental then departed from the woods, separated, and the
    defendant went downtown, where he drank whiskey.
    Some hours later, around 6:30 P.M., Thomas Joyce, the chief
    of police of Wareham, who was off duty, observed the defendant
    trying to open locked vehicles on a street in Onset, a section
    of Wareham.    Based on his observations and conversation with the
    defendant, Joyce decided to place the defendant in protective
    custody because of the level of the defendant's intoxication.6
    Joyce opened the camouflage-colored backpack the defendant was
    carrying to check for possible weapons, and noted that there was
    another backpack inside.7    The defendant and the backpacks were
    transported to the Wareham police station, and the police took
    custody of the backpacks.    Because the police determined that
    6
    The police had no knowledge of the victim's death at this
    time.
    7
    See G. L. c. 111B, § 8, which provides in relevant part:
    "Any person who is incapacitated may be assisted by a
    police officer with or without his consent to his
    residence, to a facility or to a police station. . . .
    ". . .
    "A police officer acting in accordance with the
    provisions of this section may use such force as is
    reasonably necessary to carry out his authorized
    responsibilities. If the police officer reasonably
    believes that his safety or the safety of other persons
    present requires, he may search such person and his
    immediate surroundings, but only to the extent necessary to
    discover and seize any dangerous weapons which may on that
    occasion be used against the officer or other person
    present . . . ."
    5
    the defendant had at least one outstanding warrant, he was not
    released at the end of the protective custody period, but taken
    to the Wareham Division of the District Court Department
    (Wareham District Court) the following morning, June 10, 2004.
    Following his court appearance, the defendant remained in
    custody pursuant to the outstanding warrant, and was transported
    to the PCCF.
    During that same morning, June 10, 2004, the victim's body
    was found off the path in the woods where the defendant and
    Pimental had encountered Browne the previous afternoon.     In the
    early morning hours of the following day, June 11, based on
    information supplied by his then girl friend, Pimental was
    arrested and charged with the victim's murder.   Later that day,
    the defendant's sneakers were seized from the PCCF pursuant to a
    search warrant.   DNA testing performed on a sample taken from a
    bloodstain on one of the defendant's sneakers revealed that the
    sample matched the victim's blood; the likelihood that a random
    individual's DNA would match the sample was one in ninety-five
    quintillion.   The bloodstain on the defendant's other sneaker
    was not sufficient for DNA testing.
    The cause of the victim's death was blunt force trauma to
    the chest.   His sternum was broken, and his heart lacerated by
    the sternum bone.   His ribs on both sides of his chest were
    broken, and he would have been alive when that occurred.     His
    6
    left lung was torn.   The injuries to his chest, heart, and lung
    were consistent with being stomped.     The victim's jaw was
    fractured, and he also had suffered blunt force trauma to the
    head.
    2.   Procedural history.    The defendant was indicted on
    charges of murder and armed robbery in 2007.     He filed five
    motions to suppress evidence.8    The motions were heard and
    decided by a judge in the Superior Court (motion judge) in the
    summer of 2009, after an evidentiary hearing.    The motion judge
    allowed the motion to suppress statements (fourth motion to
    suppress), and allowed in part the first motion to suppress
    evidence of the search of the backpacks conducted by the police
    chief and an officer of the Wareham police department,
    respectively, on June 9, 2004.     The judge otherwise denied the
    first motion to suppress, and also denied the remaining motions
    (second, third, and fifth motions to suppress).9    After the
    8
    The five motions were: (1) a motion to suppress evidence
    obtained from warrantless search of backpacks on June 9, 2004;
    (2) a motion to suppress evidence obtained from a warrant search
    conducted at PCCF on June 11, 2004; (3) a motion to suppress
    evidence obtained from a warrant search conducted at the Wareham
    Division of the District Court Department on June 11, 2004; (4)
    a motion to suppress the defendant's statements made when
    arrested on September 29, 2006; and (5) a motion seeking relief
    pursuant to Franks v. Delaware, 
    438 U.S. 154
    (1978).
    9
    On appeal, the defendant challenges the denial of his
    motion to suppress evidence of his sneakers (second motion to
    suppress), but does not challenge the motion judge's rulings in
    any other respect.
    7
    defendant's first trial ended in a mistrial when the jury could
    not agree on verdicts, the defendant was retried in January of
    2011 before a judge other than the motion judge (trial judge).
    The jury found the defendant guilty of murder in the first
    degree on the theories of extreme atrocity or cruelty and
    felony-murder, and also found him guilty of armed robbery.      He
    was sentenced to life imprisonment without parole on the murder
    conviction and a concurrent sentence of from four to five years
    on the armed robbery conviction.10   The defendant filed a motion
    for a new trial that he later withdrew.
    Discussion.   1.   Evidence of the defendant's sneakers.    On
    appeal, the defendant asserts error in the motion judge's denial
    of his second motion to suppress, which challenged the
    constitutionality of the search and seizure of the defendant's
    sneakers from the PCCF on June 11, 2004.   As indicated, the
    motion judge held an evidentiary hearing on the defendant's
    suppression motions as a group in which evidence was presented
    pertaining to essentially all of the motions.   In considering
    the defendant's arguments here concerning the second motion, we
    10
    Eric Pimental was separately tried and convicted of
    murder in the first degree and armed robbery. This court
    affirmed his convictions. See Commonwealth v. Pimental, 
    454 Mass. 475
    , 476, 485 (2009).
    8
    begin by summarizing the judge's pertinent findings and
    rulings.11
    The judge found that the defendant was taken into
    protective custody by the Wareham police chief on the evening of
    June 9, 2004, taken to the Wareham District Court the following
    morning, and then ordered held by a District Court judge on an
    outstanding warrant and transported to the PCCF.   After the
    victim's body was found on June 10, the medical examiner
    determined the same day that the death was a homicide, and had
    occurred about twenty-four hours earlier -- around 3:15 P.M. on
    the afternoon of June 9.   Police investigation into the homicide
    led them to believe that Pimental and the defendant were
    involved in the crime, and Pimental was interviewed by the
    police on June 11.12   Pimental ultimately told the police that
    both he and the defendant had fought with the victim and that
    the defendant had hit and kicked the victim, and also described
    the clothing the defendant had been wearing.   One of the State
    police officers interviewing Pimental, State police Trooper
    Robert Dateo, believed the defendant was still wearing the same
    clothes when he was transported to the PCCF the previous day,
    11
    The defendant does not appear to dispute the motion
    judge's factual findings.
    12
    The motion judge did not make a finding as to when on
    June 11, 2004, Pimental was interviewed. It appears to have
    been in the very early morning hours of that date. See
    
    Pimental, 454 Mass. at 477
    n.1.
    9
    June 10.   Based on the information supplied by Pimental, the
    trooper applied for a search warrant to obtain the defendant's
    clothes from the PCCF for forensic testing purposes.     The
    warrant issued at 6:15 A.M. on June 11.   Captain Scott Berna of
    the State police, who was present when the warrant issued, then
    telephoned the PCCF and informed Captain Scott Petersen of the
    Plymouth County sheriff's department that a warrant to search
    for and seize the defendant's property had been secured and
    police would be coming to the facility to execute it.     Petersen
    then notified the PCCF property department to get the
    defendant's property together, and correctional officers went to
    the unit where the defendant was housed and secured his
    sneakers.13
    At the PCCF, a detainee is issued prison clothing and his
    own clothing is put into a property bag and stored until it is
    either picked up by the detainee's family or mailed elsewhere at
    the detainee's expense.   The clothing must be removed from the
    PCCF within thirty days of the detainee's arrival.     A detainee,
    however, may be, and often is, permitted to keep his or her
    footwear, and specifically sneakers, because the prison-issue
    sneakers are not of good quality and would not fit as well.     But
    keeping the sneakers is a privilege, and they may be taken from
    13
    There was no evidence presented as to the precise
    location of the defendant's sneakers in the unit at the time
    they were seized.
    10
    a detainee at any time.14   When police seize a detainee's
    property from the PCCF pursuant to a search warrant, they
    generally do not give the detainee notice or provide him with a
    copy of the warrant unless it is a warrant to take a buccal
    swab.15
    In this case, after the search warrant issued, Berna drove
    to the PCCF to retrieve the defendant's property at some point
    during the morning of June 11, 2004.   He met a correction
    officer in the facility's lobby; the officer gave him the bag
    containing the defendant's clothes, including the defendant's
    sneakers, and Berna gave the officer a copy of the search
    14
    Introduced in evidence at the hearing on the motion to
    suppress was the PCCF "property seizure receipt" for the
    defendant's clothing. The receipt, which is signed by the
    defendant, states that "[a]ll items except court clothes,
    glasses, hearing aids and approved prosthetic devices will be
    considered contraband." The receipt then lists the items of
    clothing the defendant brought or was wearing, including a
    shirt, two shorts, and "1 sneakers." The receipt has an
    asterisk typed on it on the line listing the sneakers. Captain
    Scott Petersen of the Plymouth County sheriff's department
    testified the asterisk meant that the defendant was entitled to
    keep his sneakers, although doing so was a privilege, and the
    sneakers could be taken from him at any time.
    15
    Petersen testified to this point. He also stated more
    generally that when the inmate is present at the time property
    is seized, a copy of the warrant is given to the inmate, "[a]nd,
    say, the individual, in this particular case, was Mr. Silva, had
    the sneakers on his person and they were going to be executing
    the search warrant, we would provide him a copy as we take the
    sneakers away from him because he's physically there and
    physically present." As indicated in the text, infra, there is
    no indication in the record that the defendant was given a copy
    of the search warrant when his sneakers were seized.
    11
    warrant at the same time.   The copy ultimately was received by
    the "legal department."   The defendant was not present when his
    property was turned over to the police, and was not provided a
    copy of the warrant at that time.   After receiving the bag
    containing the defendant's property, Berna took the bag to the
    State police barracks, where Dateo, in Berna's presence, opened
    it on June 14, 2004, and listed the contents on the search
    warrant return.   Dateo then filed the return with the court on
    June 17.
    Based on his findings, the motion judge ruled in relevant
    part that the defendant was required to establish that he had a
    subjective expectation of privacy in his clothing that also was
    objectively reasonable, and that given his status as an inmate
    at the jail, the defendant could not make the required showing.16
    On appeal, the defendant challenges the judge's conclusion.    He
    claims that the judge equated the status and rights of a
    pretrial detainee with those of a convicted prisoner, and in
    doing so failed to recognize that, as a pretrial detainee, the
    defendant had a privacy right with respect to his personal
    clothing that society was prepared to recognize as reasonable,
    16
    In his motion to suppress, the defendant raised a number
    of additional challenges to the search and seizure of his
    clothes and sneakers from the PCCF that the motion judge
    considered and rejected in his memorandum of decision. The
    defendant does not challenge these particular rulings on appeal,
    and we do not discuss them except to say that we find no error
    in the rulings.
    12
    and that therefore was entitled to constitutional protection.
    Because the officers who performed the seizure did not have a
    warrant in hand at the time they seized the clothing and
    sneakers, the defendant's argument continues, the seizure was
    the equivalent of a warrantless seizure that violated the Fourth
    Amendment to the United States Constitution and art. 14 of the
    Massachusetts Declaration of Rights.
    As the defendant acknowledges, he carries the burden of
    establishing that, in the circumstances presented, he retained a
    reasonable expectation of privacy in his sneakers.   See
    Commonwealth v. Bly, 
    448 Mass. 473
    , 490 (2007) ("To succeed on
    appeal, [the defendant] must bear the threshold burden of
    showing that a warrantless search or seizure occurred. . . .
    This question is analyzed under the familiar two-part query
    whether [the defendant] had a subjective expectation of privacy
    in the items seized, and if so, whether that expectation was
    reasonable objectively"); Commonwealth v. Montanez, 
    410 Mass. 290
    , 301 (1991) (same).   The defendant has not met this burden.
    Based on undisputed evidence before him, the motion judge found
    that as a matter of policy the PCCF deemed the personal clothing
    (including footwear) of individuals held in custody there,
    including pretrial detainees, to be contraband, and although the
    PCCF generally allowed inmates to keep their sneakers, the
    retention was a privilege that could be withdrawn at any time.
    13
    Moreover, the status of a prisoner's clothing as contraband was
    stated explicitly on the property seizure receipt used by the
    PCCF to make a record of the defendant's items of clothing being
    seized and stored; the defendant's signature on that receipt
    indicates that he was or reasonably should have been aware of
    the contraband status.
    As indicated, the defendant argues that as a pretrial
    detainee, his privacy interests are entitled to greater
    protection in the jail setting than those of a convicted
    defendant serving a sentence.   We agree that a pretrial detainee
    enjoys at least as many constitutional rights as a convicted
    prisoner and perhaps more.   See Bell v. Wolfish, 
    441 U.S. 520
    ,
    545 (1979).   See also United States v. Cohen, 
    796 F.2d 20
    , 23-24
    (2d Cir.), cert. denied, 
    479 U.S. 854
    (1986).   But, as decisions
    of the United States Supreme Court considering the Fourth
    Amendment reflect, the legitimate penological interests and
    needs of a jail also are entitled to great respect.     See Turner
    v. Safley, 
    482 U.S. 78
    , 89 (1987); Bell, supra at 545-546.     See
    also Florence v. Board of Chosen Freeholders of the County of
    Burlington, 
    132 S. Ct. 1510
    , 1517 (2012) (considering
    constitutionality of strip searches of jailed detainees).     We
    have recognized the need to weigh legitimate penological
    concerns and interests under art. 14 as well.   See, e.g., Matter
    of a Grand Jury Subpoena, 
    454 Mass. 685
    , 689-693 (2009).     There,
    14
    the court considered and rejected a challenge under art. 14 to a
    sheriff's policy of recording the telephone calls of "inmates"
    (both pretrial detainees and inmates serving a sentence) and
    providing the recordings to the grand jury in response to
    subpoena.   In doing so, the court observed that "we [have]
    adopted the deferential standard of review for constitutional
    challenges to prison regulations and policies established by the
    United States Supreme Court in Turner v. Safley, [supra]."
    Matter of a Grand Jury Subpoena, supra at 690 (citing and
    discussing Cacicio v. Secretary of Pub. Safety, 
    422 Mass. 764
    ,
    772-773 [1996]).   Here, the defendant does not challenge the
    validity of the PCCF's policy of treating inmates' clothing,
    including sneakers, as contraband.17   Rather, he argues that the
    sneakers were seized from his cell or from his person,18 and
    17
    Although the reason for the policy to treat clothing as
    contraband was not raised by the defendant in his motion to
    suppress and was not the subject of any testimony or other
    evidence introduced at the hearing on the defendant's
    suppression motions, we infer that the policy was one designed
    for reasons of security and perhaps other reasons as well,
    including sanitation and health. See Kight v. State, 
    512 So. 2d 922
    , 927 (Fla. 1987), cert. denied, 
    485 U.S. 929
    (1988), and
    cases cited (warrantless seizure of defendant's clothing by jail
    authorities was permissible even though seizure was made in
    order to test for evidence of crime, where legitimate health or
    security purposes would have entitled jail authorities to effect
    seizure of inmates' clothing at any time).
    18
    It is not relevant to our decision here, but the
    defendant's assumption that if his sneakers were not seized from
    his cell, they must have been seized from his person, has no
    evidentiary support in the record.
    15
    asserts that he had a reasonable expectation of privacy related
    to the sneakers that was entitled to protection under the Fourth
    Amendment and art. 14, and that barred the seizure of the
    sneakers from either location.
    The defendant relies particularly on 
    Cohen, 796 F.2d at 23
    -
    24, in making his claim.   In Cohen, a correction officer
    conducted a search of the defendant's cell in the jail facility
    where he was being held pending trial.   The search was conducted
    at the direction of a prosecutor, and in conducting it, the
    officer focused on the defendant's papers in the cell.    Based on
    information the officer obtained from these papers, the
    prosecutor thereafter obtained a search warrant for them and
    used the papers as evidence against the defendant at trial.    
    Id. at 21.
      The court concluded that because the initial,
    warrantless "contraband" search was "intended solely to bolster
    the prosecution's case against a pre-trial detainee awaiting his
    day in court," 
    id. at 23,
    with no purpose related to
    institutional security, it violated the Fourth Amendment,
    tainted the validity of the search warrant subsequently
    obtained, and required suppression of the materials seized
    pursuant to the warrant.   See 
    id. at 23-24.
      Accord, e.g., McCoy
    v. State, 
    639 So. 2d 163
    , 164-167 (Fla. Ct. App. 1994)
    (warrantless search ordered by prosecutor solely to uncover
    incriminating evidence from defendant's cell; denial of motion
    16
    to suppress reversed because no legitimate prison objectives
    justified search); State v. Neely, 
    236 Neb. 527
    , 530, 540-541
    (1990) (warrantless search of defendant's property in locked
    jail inventory to look for evidence of crime; suppression order
    affirmed).   See State v. Henderson, 
    271 Ga. 264
    , 267-268 (1999),
    cert. denied, 
    528 U.S. 1083
    (2000) (agreeing with principle that
    warrantless search of pretrial detainee's cell solely at
    prosecutor's request would be improper; search warrant would be
    required).   In this case, it is true that the seizure of the
    defendant's sneakers and other clothes was at the behest of
    police who were conducting an investigation, and was not done
    for institutional security reasons related to the PCCF.    But
    here, in contrast to the Cohen case -- and similar to Henderson,
    supra at 268-269 -- the police had obtained a search warrant for
    the defendant's clothes, on the basis of an affidavit providing
    probable cause, before any examination or seizure of the
    sneakers occurred.19
    19
    Despite the existence of the search warrant, the
    defendant asserts that under Commonwealth v. Guaba, 
    417 Mass. 746
    (1994), the seizure of his sneakers was unreasonable by
    definition because although the search warrant had issued by the
    time the correction officers seized the sneakers, the officers
    did not have a copy of the warrant with them when they did so.
    See 
    id. at 754
    ("we hold art. 14 [of the Massachusetts
    Declaration of Rights] implicitly requires law enforcement
    officials to possess a copy of the warrant when executing it,
    unless there are exigent circumstances which would permit a
    warrantless search"). We explain in the next paragraph of the
    text that at the time the sneakers were seized, the defendant
    17
    Moreover, in order to claim constitutional protection
    against the seizure of his sneakers, the defendant must show
    that he had an actual expectation of privacy in them that
    society would be prepared to recognize as objectively
    reasonable.   Matter of a Grand Jury 
    Subpoena, 454 Mass. at 688
    ,
    quoting Commonwealth v. Blood, 
    400 Mass. 61
    , 68 (1987).     Even if
    we assume that the defendant had a subjective expectation of
    privacy related to his sneakers, it would not be one that is
    objectively reasonable; the circumstances previously discussed
    make this clear.20   As discussed, this court has long held that
    the monitoring and recording of detainees' and other inmates'
    telephone calls in a jail or house of correction, when the
    inmates have notice of the policy, does not violate the Fourth
    Amendment or art. 14.   See, e.g., Commonwealth v. Rosa, 
    468 Mass. 231
    , 242-244 (2014); Matter of a Grand Jury Subpoena,
    did   not have a reasonable expectation of privacy in them that
    was   entitled to protection under art. 14. Accordingly, we need
    not   decide the defendant's Guaba claim or consider whether there
    are   circumstances in which the "rule" of Guaba may not apply.
    20
    In terms of circumstances, we focus on the following:
    the defendant was lawfully being held in custody at the PCCF on
    an outstanding warrant; the PCCF had a policy, unchallenged by
    the defendant, of treating the personal clothing belonging to
    all inmates, including pretrial detainees, as contraband,
    presumably as a security measure; and the defendant was or
    reasonably can be held to have been aware of the policy, having
    signed the "property seizure receipt" on the day of his arrival
    at the institution. The personal papers of the defendant at
    issue in United States v. Cohen, 
    796 F.2d 20
    , 21 (2d Cir.),
    cert. denied, 
    479 U.S. 854
    (1986), would not appear to be
    covered by the PCCF policy.
    18
    supra at 688-693; 
    Cacicio, 422 Mass. at 770-773
    .   As we recently
    determined in relation to inmate mail deemed contraband by jail
    officials, see Commonwealth v. Jessup, 
    471 Mass. 121
    , 127-134
    (2015), we conclude here that as a pretrial detainee in a jail
    facility with a legitimate policy in place of treating detainee
    and inmate clothing as contraband -- a policy of which the
    defendant had notice -- the defendant had no constitutionally
    protectable privacy interest in his sneakers that prevented
    their seizure.
    2.   Joint venture.   The defendant argues that the trial
    judge committed constitutional error by instructing the jury on
    joint venture liability, over defense counsel's objection.      The
    argument is not that there was insufficient evidence of a joint
    venture between the defendant and Pimental, but rather that the
    instruction violated his constitutional right to due process
    because he had no notice that a joint venture theory would be
    advanced.
    The defendant's claim lacks merit.   As the Commonwealth
    points out, the opening statement of the prosecutor clearly
    reflected the Commonwealth's position that the defendant and
    Pimental acted together in committing the murder, as did the
    defendant's own statements about committing the crime that were
    19
    introduced through the testimony of one of the Commonwealth's
    central witnesses, David Belmore.21
    The defendant suggests a denial of due process here because
    the Commonwealth presented the defendant to the jury only as
    having participated directly in the killing and therefore as a
    "principal," whereas through the vehicle of the judge's joint
    venture instruction, the jury were permitted to convict him as
    an "accomplice" or "joint venturer," a theory of guilt that had
    never been presented during trial and in response to which he
    lacked an opportunity to prepare a defense.   The defendant's
    argument, however, appears to be premised on an incorrect view
    of joint venture principles.   To prove that a defendant
    committed a crime as part of a joint venture, the Commonwealth
    must prove beyond a reasonable doubt that the defendant
    "knowingly participated in the commission of the crime charged,
    alone or with others, with the intent required for that
    offense."   Commonwealth v. Zanetti, 
    454 Mass. 449
    , 466 (2009).
    There is no requirement that the Commonwealth prove precisely
    what role the defendant played -- whether he acted as a
    principal or an accomplice (or joint venturer).   Rather, as
    Zanetti reflects, what matters is only that there be proof of
    21
    Nor could any claim be made that the Commonwealth's
    request for, and the judge's decision to give, a joint venture
    instruction was a surprise. A joint venture instruction had
    been given during the defendant's first trial, and the same
    trial counsel represented the defendant in both trials.
    20
    (1) the defendant's knowing participation in some manner in the
    commission of the offense; and (2) the defendant's intent --
    i.e., proof that the defendant had or shared in the intent
    necessary for the offense of which he is convicted.    See 
    id. at 466-468
    & n.22.   The evidence presented by the Commonwealth in
    this trial indicated that both the defendant and Pimental
    actively participated in the killing of the victim, and also
    that the defendant did so with the intent necessary to commit
    murder.    There was no error in charging the jury on joint
    venture.
    3.     Involuntary manslaughter instruction.   The defendant
    claims reversible error in the trial judge's decision not to
    give an instruction on involuntary manslaughter.    We disagree.
    The trial evidence concerning the defendant's actions and role
    in the killing of the victim was presented by the Commonwealth's
    witness Belmore, who testified to conversations he had had with
    the defendant while they were both incarcerated in the same
    jail.    That evidence indicated that after Pimental knocked the
    victim down, he and Pimental together kicked the victim with
    Pimental kicking him in the head, and that the defendant jumped
    on the victim's chest, making the victim's eyes "bug out."
    According to the defendant, he and Pimental knew the victim was
    dead when "his eyes stopped moving."    The injuries sustained by
    the victim, which were consistent with someone jumping or
    21
    stomping on his chest, were multiple and severe:   a broken
    sternum, an injury that, according to the medical examiner, was
    consistent with a great deal of force being applied; a lacerated
    heart and torn lung; and broken ribs on both sides of his body,
    also involving significant force.   The victim's additional
    injuries included a broken jaw and blunt force trauma to the
    head such that his face was unrecognizable.
    The intent necessary to prove murder in the first degree on
    the theory of extreme atrocity or cruelty includes (1) an intent
    to commit grievous bodily harm or (2) an intent to commit an act
    that, in the circumstances known to the defendant, created a
    plain and strong likelihood that death would follow (third prong
    malice).   Commonwealth v. Pimental, 
    454 Mass. 475
    , 480 (2009).
    The intent necessary to prove involuntary manslaughter is an
    intent to commit an act that "involves a high degree of
    likelihood that substantial harm will result to another."
    Commonwealth v. Vizcarrondo, 
    427 Mass. 392
    , 396 (1998), S.C.,
    
    431 Mass. 360
    (2000), quoting Commonwealth v. Sires, 
    413 Mass. 292
    , 303 n.14 (1992).   The circumstances of the killing and
    injuries sustained by the victim are not consistent with
    anything other than intent to do grievous bodily harm or an
    22
    intent qualifying as third prong malice.   The trial judge did
    not err in declining to instruct on involuntary manslaughter.22
    4.   Prosecutor's closing argument.   In her closing
    argument, the prosecutor stated:
    "Now, the defense has suggested that Eric Pimental
    acted alone and that this defendant did nothing but stand
    by. There is not a scintilla of evidence to support that
    proposition, ladies and gentlemen. . . . [T]hree men
    walked into the woods and only two came out. And those two
    men walked out of those woods together, and they were both
    carrying the property of [the victim]. [T]hey both had the
    blood of [the victim] on their shoes." (Emphasis added.)
    The defendant contends that the prosecutor's statement
    about "not a scintilla of evidence" improperly shifted the
    burden of proof to the defendant.   We disagree.   In context, the
    argument represented a response to defense counsel's closing
    argument in which he summarized the evidence of blood and other
    physical evidence linking Pimental directly to the crime, and
    the paucity of such evidence relating to the defendant, and then
    argued that the defendant had been present with Pimental when
    the latter killed the victim, but had not actively participated
    in the crime -- that his conduct in not interfering and stopping
    22
    In any event, the jury also convicted the defendant of
    murder in the first degree on a theory of felony-murder, with
    armed robbery as the predicate felony. A defendant is not
    entitled to an instruction on involuntary manslaughter in
    connection with the theory of felony-murder. See Commonwealth
    v. Jessup, 
    471 Mass. 121
    , 135 (2015); Commonwealth v. Selby, 
    426 Mass. 168
    , 172 (1997).
    23
    his companion was morally "troubling", but was not a crime.23
    The prosecutor was entitled to respond to the defense argument
    and also to comment on the strength of its case and weakness of
    the defense, "as long as argument is directed at the defendant's
    defense and not at the defendant's failure to testify."
    Commonwealth v. Garvin, 
    456 Mass. 778
    , 799 (2010).    Considering
    the challenged phrase in the context of the prosecutor’s entire
    argument, we find no error.
    5.    Relief pursuant to G. L. c. 278, § 33E.   We have
    thoroughly reviewed the evidence and record in this case, and
    find no basis on which to grant relief to the defendant pursuant
    to G. L. c. 278, § 33E.
    Judgments affirmed.
    23
    Defense counsel argued:
    "I know for many people it's troubling that Mr. Silva
    would even be present, okay, and that it's morally
    troubling that he didn't intervene. I understand that.
    But that is not a crime. It's not right, but it's not a
    crime. We're here to determine not whether he acted,
    necessarily, the way we would have wished he had acted that
    day, but we're here to determine whether he committed a
    crime."