Commonwealth v. Vargas , 475 Mass. 338 ( 2016 )

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SJC-10075
COMMONWEALTH vs. PABLO VARGAS.
Hampden. March 11, 2016. - August 30, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.1
Homicide. Constitutional Law, Admissions and confessions,
Voluntariness of statement, Waiver of constitutional
rights, Assistance of counsel, Public trial. Due Process
of Law, Assistance of counsel, Interpreter. Evidence,
Admissions and confessions, Voluntariness of statement,
Hearsay. Waiver. Telephone. Defense of Others. Self-
Defense. Interpreter. Practice, Criminal, Admissions and
confessions, Voluntariness of statement, Waiver, Assistance
of counsel, Instructions to jury, Hearsay, Motion to
suppress, New trial, Interpreter, Public trial, Capital
case.
Indictment found and returned in the Superior Court
Department on November 2, 2004.
A pretrial motion to suppress evidence was heard by Daniel
A. Ford, J.; the case was tried before Francis R. Fecteau, J.;
and a motion for a new trial, filed on December 23, 2013, was
heard by C. Jeffrey Kinder, J., and a motion for reconsideration
was also heard by him.
1
Justice Cordy participated in the deliberation on this
case and authored this opinion prior to his retirement. Justice
Spina participated in the deliberation on this case prior to his
retirement.
2
John M. Thompson for the defendant.
Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.
CORDY, J. There is no dispute that on the night of
September 23, 2004, the victim, Tremayne King, was killed by the
defendant, Pablo Vargas. The defendant stabbed the victim eight
times during an altercation at the residence of the victim's
estranged wife, Yanira Rodriguez, who was the defendant's girl
friend. At trial, the defendant sought to rebut the charge of
murder in the first degree on the theory of self-defense,
alleging that he fought and killed the victim because he feared
for his life.
On May 24, 2006, a Hampden County jury convicted the
defendant of murder in the first degree on a theory of extreme
atrocity and cruelty, rejecting the Commonwealth's alternative
theory of premeditation. In December, 2013, the defendant moved
for a new trial, which was denied, as was his motion for
reconsideration thereof.
On appeal from his conviction and from the denial of his
motion for a new trial, the defendant claims that (1) his
statement made during police questioning shortly after the
altercation should have been suppressed; (2) the trial judge
erred in excluding relevant so-called Adjutant evidence of the
victim's history of violence, see Commonwealth v. Adjutant, 443
3
Mass. 649, 664 (2005); (3) the judge erred in admitting certain
testimony concerning the defendant's statements made to a third
party; (4) the judge erred in denying his request for an
instruction on defense of another; (5) the judge's jury
instructions on malice, self-defense, and voluntary manslaughter
were erroneous and created a substantial likelihood of a
miscarriage of justice because they allowed the jury to convict
the defendant without considering mitigating circumstances; (6)
a qualified interpreter should have been appointed to assist
with the testimony of Rodriguez, who was a witness to the
altercation; (7) his right to a public trial was violated when
the court room was closed during jury selection; (8) trial
counsel was ineffective; and (9) evidence that was newly
discovered after trial warranted the granting of a new trial.
The defendant also requests that we exercise our authority under
G. L. c. 278, § 33E, to order a new trial or reduce the verdict
of murder in the first degree to voluntary manslaughter.
Although our review of the record does not reveal any
errors that would warrant a new trial, the circumstances of this
case persuade us that a reduction of the defendant's conviction
from murder in the first degree to voluntary manslaughter is
more consonant with justice. We therefore vacate the
defendant's conviction of murder in the first degree and his
sentence, and we remand the case to the Superior Court for the
4
entry of a verdict of guilty of voluntary manslaughter and for
imposition of sentence.
Background. We recite the facts in the light most
favorable to the Commonwealth, reserving certain details for our
analysis of the issues raised on appeal.
At 11:48 P.M. on September 23, 2004, Springfield police
Detective Norman Shink and three other officers arrived at an
apartment building on Bristol Street in Springfield. Shink saw
a man, who was later identified as the defendant, in front of an
apartment on the second floor. The defendant lifted his shirt,
revealing a bloody knife tucked into his waistband, and said,
"This is the knife I used to stab him. Take it. Take it. He
was beating me real bad. I had no choice. It was self-
defense."
Rodriguez lived in the apartment on Bristol Street with her
three children. She was married to the victim, but the two were
estranged. The victim had enlisted in the National Guard, and
on July 10, 2004, was assigned to Fort Drum, in New York, to
train for deployment to Iraq. At that time, the victim and
Rodriguez separated. The victim left a number of personal
belongings stored at the apartment, including several handguns.
In August, 2004, the defendant began staying at Rodriguez's
apartment, and he was there on the evening of September 23.
That day, Rodriguez received a telephone call from the victim,
5
who had received a pass from the National Guard and planned to
return to the apartment to retrieve his belongings. The victim
did not specify when he would be arriving.2
The defendant was present when Rodriguez spoke with the
victim. She discussed the conversation with him and encouraged
him to leave before the victim arrived. The defendant did not
do so.
At approximately 11:30 P.M. that evening, Rodriguez was
sitting on a couch watching television in the living room. She
heard a sound at the door and observed a hand reaching in
through the partially opened door and sliding the chain lock up
to release it and gain access to the apartment. At this point,
the victim burst in and attacked her, hitting her with his fists
as she covered her face with her arms. The defendant, who was
in the bedroom at the time, came into the living room and said
something to the victim. The victim ran at the defendant,
knocking him back into the bedroom and jumping on top of him.
The defendant shouted for Rodriguez to telephone the police, and
Rodriguez ran to an apartment next door. One of the occupants
2
On September 23, the victim drove with a fellow soldier to
Springfield from Fort Drum. The soldier was called as a witness
for the Commonwealth. He testified that while en route, the
victim made two telephone calls. The first was to a female (who
the witness did not know), to whom the victim stated falsely
that he was not coming to Springfield that day because his pass
had been delayed. In the second call, he told the person that
he was coming home to get divorce papers, pick up his weapons,
and surprise his wife.
6
answered the door; Rodriguez begged him to telephone 911 and
stated that the victim had a firearm, although she had not seen
the victim with any weapon. When she returned to her apartment,
Rodriguez saw the victim lying on the couch, bleeding. No
firearm was found in the victim's possession.
The victim went into cardiac arrest and died while being
transported to the hospital. A medical examiner determined that
of the eight stab wounds sustained by the victim, four had been
lethal. One wound to the victim's left upper arm was defensive.
Discussion. 1. Motion to suppress statement. The
defendant was arrested and interrogated by Sergeant Roy Carter
and Shink at the Springfield police department in the early
hours of September 24, 2004. The interview was recorded.3,4
3
During the interview, the defendant shared his version of
events, including that he saw the victim carrying a gun and that
he used the knife in self-defense. The defendant described the
gun as black and gray, which was similar to one of the two guns
found by police during a search of the victim's personal
belongings (which had been stored at the apartment) and
described to the jury as "two-tone." The defendant's statement
indicated the following: A man whom the defendant did not
recognize barged into Rodriguez's apartment while the defendant
and Rodriguez were sitting on the couch. The man attacked
Rodriguez and then proceeded to charge at the defendant. The
man hit the defendant, tackled him, and jumped on top of him.
The defendant saw the man had a gun, "freaked out," and grabbed
a knife to defend himself. The defendant told the man to stay
back, and when he did not do so, the defendant began to swing
the knife. The two fell to the ground, at which point the
defendant noticed that the man began to lose strength due to
being stabbed.
7
Prior to questioning, Carter read and presented the
defendant with the Miranda rights. See Miranda v. Arizona, 384
U.S. 436 (1966). When Carter instructed the defendant as to his
right to an attorney,5 the defendant asked, "Is there a lawyer
here present?" Carter responded, "No, there isn't." Carter
then proceeded with his presentation of the Miranda rights,
including that the Commonwealth would provide a lawyer if the
defendant could not afford one. Carter read the Miranda
warnings for a second time, the defendant initialed the warnings
as they were read, and the defendant indicated that he wished to
speak to police.
4
The recording was played at trial. In its closing
argument, the Commonwealth characterized the defendant's
statement as self-serving, and specifically attempted to
undermine the credibility of the self-defense theory by
highlighting various inconsistencies between the statement and
reality. The prosecutor stated: "One of the most important
pieces of evidence you will have in the jury deliberation is a
copy of the [recording] of the statement taken by the police at
the police station."
5
The Miranda warning form for the Springfield police
department, see Miranda v. Arizona, 384 U.S. 436 (1966),
contained an error as to the right to counsel warning. The
document provided: "You have the right to talk for advice
before we ask you any questions and to have him with you during
questioning." Sergeant Roy Carter verbally corrected this
error, as his instruction was, "[Y]ou have the right to talk to
a lawyer for advice before we ask you any questions and you can
have him with you during questioning."
The form also presented the defendant with the Miranda
rights prior to informing him of his right to use a telephone.
8
The police then notified the defendant of his right to use
the telephone. The defendant indicated that he intended to use
the telephone, and Carter told him that he would be allowed to
do so. The defendant checked the box indicating that he had
used the telephone, and signed that he had been notified of his
rights. The space on the form for timing of the defendant's
telephone call was left blank, and the defendant never made a
telephone call.
Prior to trial, the defendant moved to suppress his
statement. He argued that the statement was obtained in
violation of his Fifth Amendment rights,6 specifically that (1)
he had not made a voluntary waiver of his Miranda rights due to
his lack of language skills; (2) his waiver was not knowing
because of the faulty Miranda warning; and (3) his statement,
6
The defendant's motion did not specifically address the
defendant's cognate protections under art. 12 of the
Massachusetts Declaration of Rights. The Commonwealth argues
that any arguments under art. 12 have therefore been waived.
See Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516
(2004) ("A pretrial motion shall state the grounds on which it
is based and shall include in separately numbered paragraphs all
reasons, defenses, or objections then available, which shall be
set forth with particularity"). See also Commonwealth v. Mubdi,
456 Mass. 385, 389 (2010) (under rule 13 [a] [2], affidavits
"must be sufficiently detailed to give fair notice to the
prosecution"). Article 12 was, however, addressed at the motion
to suppress hearing. The defendant's art. 12 claims are not
waived; issues of notice are irrelevant, as art. 12 guarantees
the same rights as does the Fifth Amendment, see Commonwealth v.
Clarke, 461 Mass. 336, 337 (2012), and the motion judge relied
on cases interpreting both the Massachusetts Declaration of
Rights and the United States Constitution in denying the motion
to suppress.
9
"Is there a lawyer here present?" constituted an invocation of
his right to counsel, which invocation was not scrupulously
honored.7 At an evidentiary hearing on the issue, the defendant,
Carter, and Shink testified. Carter and Shink both testified
that the defendant was eager to share his version of events.
The judge credited the officers' testimony, and, after reviewing
the recording of the interview, denied the motion. The judge
found that the defendant had been advised of his rights, that he
had a sufficient command of English to understand and waive
those rights, that he had been informed of his statutory right
to use the telephone, and that he had not made an unambiguous
request for counsel.
On appeal, the defendant challenges the denial of his
motion to suppress on three grounds: (1) the police did not
scrupulously honor his invocation of his art. 12 right to
counsel; (2) his statutory right to use the telephone, under,
G. L. c. 276, § 33A, was intentionally violated; and (3) he did
not make a knowing and voluntary Miranda waiver.
7
The defendant's motion to suppress his statement did not
specifically set forth the purported G. L. c. 276, § 33A,
violation of his telephone rights. See Mass. R. Crim. P. 13 (a)
(2). However, the claim that G. L. c. 276, § 33A, was violated
was addressed by the motion judge, and a suppression challenge
on that ground is therefore not waived. See Mass. R. Crim. P.
13 (a) (2) ("Grounds not stated which reasonably could have been
known at the time a motion is filed shall be deemed to have been
waived, but a judge for cause shown may grant relief from such
waiver").
10
a. Statutory right to use telephone. Under G. L. c. 276,
§ 33A, "an arrested person [must] be informed of his right to
use the telephone as soon as reasonably practicable after
arrival at the station." Commonwealth v. Bouchard, 347 Mass.
418, 420 (1964). "The exclusionary rule applies to intentional
deprivation by police of a defendant's rights under G. L.
c. 276, § 33A." Commonwealth v. Hampton, 457 Mass. 152, 155
(2010).
There was not an intentional deprivation of the defendant's
statutory telephone rights. The defendant was informed of his
right to use the telephone after waiving his Miranda rights.
Carter asked the defendant if he "intend[ed] to use the
[tele]phone." The defendant said, "Yes." Some confusion
followed, as there was no indication that the defendant wanted
to use the telephone at that moment or after he spoke with
police. The record does reflect, however, that the defendant
was eager to speak to police. In any event, although the
defendant was not informed of his right to use the telephone for
at least one hour and twenty-five minutes after he had been
brought to the station,8 "he was informed before the inculpatory
8
Carter testified that the defendant arrived at the police
station at 12:20 A.M. The defendant was handcuffed to a chair
in the detective bureau. The recording of the interview
indicated that it began at 1:40 A.M., and, roughly five minutes
into the interview, the defendant was informed of his right to
use the telephone.
11
statement was given." Commonwealth v. Espada, 450 Mass. 687,
702 (2008). Contrast Commonwealth v. Jones, 362 Mass. 497, 503
(1972) (statement suppressed where police waited more than one
hour to inform defendant of right to make telephone call and
damaging confrontation occurred in interim period). There was
no error.
b. Right to counsel. The defendant claims that his
question, "Is there a lawyer here present?" asked while Carter
was reading him his Miranda rights, was an invocation of his
right to counsel, and should have resulted in the cessation of
the interrogation. His subsequent statements, he argues, should
therefore have been suppressed. We disagree.
Miranda, 384 U.S. at 444, requires that "[p]rior to any
questioning, the [suspect] must be warned that he has a right to
remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of
an attorney, either retained or appointed." Miranda "protects
both Fifth Amendment rights and rights guaranteed under art. 12"
(citation omitted). Commonwealth v. Clarke, 461 Mass. 336, 345
(2012). Once a suspect invokes his or her right to counsel,
"all interrogation must cease until counsel is made available,
unless the [suspect] himself [or herself] reinitiates further
communication with the police." Commonwealth v. Hoyt, 461 Mass.
143, 149 (2011)
12
The defendant's question concerning whether an attorney was
present at the police station was, at best, ambiguous as to
whether he was invoking his right to counsel.9 In response,
Carter properly sought to clarify any ambiguity by repeating
that the defendant had a right to counsel prior to questioning,
advising him that he would be provided with an attorney if he
could not afford one, and asking him if he understood those
rights. The defendant told Carter that he did, and proceeded to
initial the document to indicate his acknowledgement and then to
assent to police questioning. There was no error in the judge's
ruling that the defendant had not invoked his right to counsel.
c. Knowing and voluntary waiver of rights. The defendant
twice heard and then signaled comprehension of his Miranda
rights. When the defendant asked if there was a lawyer present
during the reading of his rights, the police responded
accurately and promptly. Prior to questioning, Carter verified
that the defendant was not intoxicated and that he could
9
The suspect "must articulate his desire to have counsel
present sufficiently clearly that a reasonable police officer in
the circumstances would understand the statement to be a request
for an attorney." Davis v. United States, 512 U.S. 452, 459
(1994). See Commonwealth v. Vincent, 469 Mass. 786, 796 (2014)
("defendant's statements concerning possibly needing or wanting
a lawyer were ambiguous and equivocal, and would not reasonably
be understood in the circumstance to constitute an invocation of
the right to counsel" [quotations and citation omitted]).
13
comprehend the English language.10 The motion judge found and
the record reflects that the defendant was eager to share his
version of the events with police. We note also that the
defendant's statement to the police was self-serving, in that it
supported his theory of defense. There was no error, and the
denial of the defendant's motion to suppress is affirmed.
2. Adjutant evidence. At trial, the defendant sought to
introduce, under Adjutant, 443 Mass. at 664, evidence concerning
the victim's history of violence in order to show that the
victim was the initial aggressor in the altercation that
resulted in the victim's death. That evidence would largely
have consisted of testimony concerning the victim's prior
violence toward Rodriguez. The trial judge determined that the
issue as to the initial aggressor was not in dispute, and did
not allow the evidence to be admitted for that purpose.11
10
The defendant indicated that he had trouble reading and
writing English. However, the defendant told Carter that he had
secured his "GED," which we interpret as a reference to passing
a general education development test, and Carter testified at
the motion to suppress hearing that the defendant had "[n]o
difficulty at all" with the English language. The motion judge
found that "the defendant is fluent in English" and that
"language was simply not an impediment to the interview that
took place."
11
Rodriguez was, however, allowed to testify to violent
acts committed by the victim against her, to the extent that she
had conveyed those acts to the defendant, which she testified
she had. The trial judge instructed the jury:
14
"[W]here the identity of the first aggressor is in dispute
and the victim has a history of violence, . . . the trial judge
has the discretion to admit evidence of specific acts of prior
violent conduct that the victim is reasonably alleged to have
initiated, to support the defendant's claim of self-defense."
Adjutant, 443 Mass. at 664. The definition of "first aggressor"
pertains not only to "the person who initiated the
confrontation, but also the person who initiated the use or
threat of deadly force, as 'resolution of both issues may assist
the jury in deciding whether the prosecution has met its burden
of proving that the defendant did not act in self-defense.'"
Commonwealth v. Camacho, 472 Mass. 587, 592 (2015), quoting
Commonwealth v. Chambers, 465 Mass. 520, 529-530 (2013).
Evidence of the victim's history of violence would not have
bolstered the defendant's case, as the question of initial
aggressor was never at issue. There was no conflicting evidence
as to the series of events leading up to the victim's death.
The only accounts of the altercation came from the defendant
(through his statement to police) and Rodriguez, who was called
as a Commonwealth witness, both of which were consistent in
"You are permitted to hear these out-of-court
statements not for the truth of the matters contained,
but for the fact of a conversation . . . [The
information] may be considered by you on the issue of
the defendant's state of mind or his state of
knowledge concerning those aspects, those events."
15
their portrayal of the victim as the initial aggressor.12 The
jury also heard substantial evidence supporting the defendant's
self-defense theory: the victim was significantly larger than
the defendant;13 and the victim had been trained in unarmed
combat, including the incapacitation and killing of individuals,
with or without weapons.14 Based on that evidence, and given
12
Rodriguez's testimony as to the portion of the
altercation that she witnessed included the following exchange
on cross-examination:
Q.: "[A]fter your husband, burst into that apartment on
the night of his death, you said that he grabbed [the
defendant,] correct?"
A.: "Yes, sir."
. . .
Q.: "Was your husband on top of him?"
A.: "Yes, sir."
Q.: "Did your husband have his hand on [the defendant]?"
A.: "Yes, sir."
Q.: "Was [the defendant] able to get away from [the
victim]?"
A.: "No, sir."
13
The victim was six feet tall and approximately 180
pounds, while the defendant was five feet, six inches tall and
weighed 114 pounds when he was booked.
14
When the judge charged the jury, he instructed that
"deadly force" can be used in self-defense where "the person
using the weapon or deadly force [has] a reasonable apprehension
of great bodily harm or death and a reasonable belief that no
other means would suffice to prevent such harm." The jury were
16
that there was no deadly weapon found with the victim, the
assumption required to make the defendant's self-defense case
was that the victim immediately used deadly force (with his
hands and body) when the altercation began, and a deadly weapon
was not necessary. The defendant's proposed history of violence
evidence would therefore have been both cumulative and
unnecessary in making a case of self-defense, see Adjutant, 443
Mass. at 663, and there was no "great[] danger that the
exclusion of the evidence concerning the victim's violent acts"
prejudiced the defendant. Camacho, 472 Mass. at 593.15
allowed to "consider evidence of the relevant physical
capability of the combatants, how many persons were involved on
each side, the characteristics of any weapons used, the
availability of rooms to maneuver, or any other factors . . .
relevant to the reasonableness of the defendant's conduct under
the circumstances."
15
The defendant argues that, in its closing, the
Commonwealth put at issue the initial aggressor question.
During closing arguments, the prosecutor described the defendant
and Rodriguez's versions of events as "wildly exaggerated" and
posed an alternative series of events, indicating that the
defendant may have been waiting for the victim so as to "ambush
him" with a knife. The prosecutor went on to say that "[c]ommon
sense should tell you [Rodriguez and the defendant] were waiting
and [the defendant] was prepared and ready for the eventuality
that [the victim] would walk in and be upset to find the
defendant and his wife." This postulation did not change the
evidence presented in terms of who was the initial aggressor.
And, to the extent that the Commonwealth's "ambush" argument was
intended to persuade the jury that the murder was premeditated,
the jury rejected that theory.
17
3. Jury instructions.16 The jury were instructed as to the
prerequisites for a guilty finding of murder in the first
degree, murder in the second degree, and manslaughter. As to
murder in the first degree, the jury were instructed on the
theories of deliberate premeditation and extreme atrocity or
cruelty. The jury returned a verdict convicting the defendant
or murder in the first degree under the theory of extreme
atrocity or cruelty. The defendant now claims error with the
judge's decision, over his objection, not to instruct the jury
on defense of another, and, for the first time, objects to
various portions of the self-defense and homicide instructions,
particularly those related to malice and voluntary manslaughter.
a. Defense of another. The defendant argues that the
judge erred by refusing to instruct the jury on the question of
defense of another, given that he intervened after the victim's
attack on Rodriguez.17 Because the defendant's exception was
16
The homicide jury instructions in this case were based on
the 1999 Model Jury Instructions on Homicide.
17
In declining to instruct the jury on defense of another,
the judge reasoned:
"The way I was looking at the evidence, I don't think
it supports it because the evidence would indicate that the
defendant appeared not to have armed himself until he
himself was being attacked and wasn't intervening in the
attack on another while armed. So I think the evidence
tends to support self-defense, not defense of another. It
may have initiated that way, the action may have started
18
preserved, we review the defendant's claim for prejudicial
error. See Commonwealth v. Allen, 474 Mass. 162, 168 (2016).
Defense of another is warranted if "(a) a reasonable person
in the actor's position would believe his intervention to be
necessary for the protection of the third person, and (b) in the
circumstances as that reasonable person would believe them to
be, the third person would be justified in using such force to
protect himself." Commonwealth v. Scott, 463 Mass. 561, 576
(2012), quoting Commonwealth v. Young, 461 Mass. 198, 208
(2012). "The reasonableness of the belief is from the point of
view of the actor and not of the third party, such that whether
the third party was actually entitled to use self-defense, or
believed the use of force to be necessary, is not at issue."
Scott, supra. "The actor's justification is lost if he uses
excessive force, e.g., aggressive or deadly force unwarranted
for the protective purpose." Id., quoting Commonwealth v.
Martin, 369 Mass. 640, 649 (2012).
The judge did not err in finding that the defendant was not
entitled to an instruction on the use of force in defense of
Rodriguez. Even viewing the evidence in the light most
favorable to the defendant, Scott, 463 Mass. at 577, the
evidence does not support an objective basis on which a
that way, but in terms of self-defense, the deadly force, I
think that was done."
19
reasonable person would have believed that the defendant was
justified in using deadly force in defense of Rodriguez. The
evidence tended to show that, when the defendant stabbed the
victim, Rodriguez had left the apartment.
b. Other jury instruction issues. The defendant, for the
first time on appeal, claims error as to various portions of the
jury instructions, particularly as to flaws in the self-defense
and homicide instructions. Because the defendant did not object
to the jury instructions, we review them to determine whether
there was a substantial likelihood of a miscarriage of justice.
See Commonwealth v. Valentin, 474 Mass. 301, 305 (2016). When
reviewing jury instructions, we "evaluate the instruction as a
whole, looking for the interpretation a reasonable juror would
place on the judge's words" (citation omitted). Commonwealth v.
Young, 461 Mass. at 207. We do not consider words from the
instructions in bits and pieces or in isolation from one
another. See id. If there is an error in the jury
instructions, a new trial is called for unless we are
"substantially confident that, if the error had not been made,
the jury verdict would have been the same." Commonwealth v.
Penn, 472 Mass. 610, 626 (2015), cert. denied, 136 S. Ct. 1656
(2016), quoting Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3
(1988).
20
i. Self-defense. The defendant takes issue with the
following instruction: "A person may not use force in self-
defense until he has availed himself of all proper means to
avoid physical combat." The defendant argues that, under the
circumstances of this case, the duty to retreat instruction
should have been limited to the time frame of the face-to-face
confrontation. The flaw was exacerbated because in closing
argument, the prosecutor asked if the defendant did "all he
could to avoid physical combat when he told [Rodriguez's
neighbor] he wasn't leaving even though they knew [the
defendant] was coming home[.]" This question, the defendant
argues, in conjunction with the instruction, created the
implication that if the defendant did not leave when he learned
that the victim was coming, he was not justified in using any
force to defend himself.
We find no error with the instruction, which tracked the
Model Jury Instructions on Homicide 55-56 (1999), and clearly
and correctly conveyed the applicable law. The judge instructed
the jurors that the Commonwealth had the burden of proving that
the defendant did not act in self-defense and that the time
frame in which the defendant must have been in fear of bodily
harm was during the altercation. Specifically, the jury were
instructed that "[t]he proper exercise of self-defense arises
from necessity and ends when necessity ends."
21
ii. Homicide. The judge instructed the jury on murder in
the first degree (on theories of deliberate premeditation and
extreme atrocity or cruelty) and on murder in the second degree.
As to both, the judge instructed on the prerequisite that the
Commonwealth must prove malice, and on the possibility of a
justified killing in self-defense. See Model Jury Instructions
on Homicide 8, 12, 20-21 (1999). During the course of the
instructions on murder in the first and second degrees, the
judge instructed the jury three times that they are "permitted"
but not required "to infer that a person who intentionally uses
a dangerous weapon on another person is acting with malice."
The dangerous weapon instruction was also consistent with the
Model Jury Instruction on Homicide 61 (1999). The judge then
instructed the jury on voluntary manslaughter and the
circumstances that mitigate murder to manslaughter. He stated:
"Now going to move to the third form of homicide as a
lesser included offense within the charge of murder,
and that being manslaughter. In order to prove that
the defendant acted with malice, the Commonwealth must
prove beyond a reasonable doubt the absence of certain
mitigating circumstances. Mitigating circumstances
are circumstances which lessen a defendant's
culpability for an act. Both are crimes of murder,
and voluntary manslaughter requires proof of an
unlawful killing, but the killing may be the crime of
voluntary manslaughter if it occurred under mitigating
circumstances. So that if the Commonwealth cannot
prove beyond a reasonable doubt that the defendant
acted with malice, in order to obtain a conviction of
murder, the Commonwealth must prove beyond a
reasonable doubt the absence of these mitigating
circumstances. Based on the evidence of this case,
22
mitigating circumstances you must consider are heat of
passion upon a reasonable provocation; second, heat of
passion induced by sudden combat; third, excessive
force -- excessive use of force in self-defense."
(Emphasis added to highlight variances from the Model
Jury Instruction on Homicide 27 [1999]18).
After introducing voluntary manslaughter, the judge
outlined each of the three mitigating circumstances, the absence
of which the Commonwealth had to prove. The third of those
circumstances was excessive use of force in self-defense. The
instruction as to the excessive use of force in self-defense
mitigating circumstance was as follows:
"[T]he Commonwealth has the burden of proving beyond a
reasonable doubt the absence of self-defense. If the
Commonwealth fails to prove beyond a reasonable doubt
the absence of self-defense, your verdict must be not
guilty with respect to the crimes of murder or
voluntary manslaughter. If, however, the Commonwealth
does prove excessive force in an effort to defend
himself, you'd be justified in finding the defendant
guilty of voluntary manslaughter."
18
The model jury instruction provides:
"In order to prove that the defendant acted with
malice, the Commonwealth must prove beyond a reasonable
doubt the absence of certain mitigating circumstances.
Mitigating circumstances are circumstances which lessen a
defendant's culpability for an act. Both the crimes of
murder and voluntary manslaughter require proof of an
unlawful killing, but the killing may be the crime of
voluntary manslaughter if it occurred under mitigating
circumstances so that the Commonwealth cannot prove beyond
a reasonable doubt that the defendant acted with malice.
In order to obtain a conviction of murder, the Commonwealth
must prove beyond a reasonable doubt the absence of [these]
mitigating [circumstances]" (emphasis added).
Model Jury Instructions 27 (1999).
23
The defendant argues that errors permeated the jury
instructions and allowed the jury to convict the defendant of
murder in the first degree without considering any of the
mitigating circumstances, essentially removing manslaughter as
an option for the jury, and that such errors warrant a new
trial. We disagree.
We note first that each of the distinct jury instructions,
taken alone, were not erroneous. The use of a deadly weapon
instruction, interposed three times during the instructions on
murder in the first and second degrees, was consistent with the
model instructions both in terms of form and location. Model
Jury Instruction on Homicide 8, 12, 21, 61. We have repeatedly
approved of a similar instruction that "tells[s] the jury they
may, rather than they must, infer malice from use of a dangerous
weapon." Commonwealth v. Young, 461 Mass. at 212, and cases
cited. The deadly weapon instruction in this case, which
"permitted" but did not "require[]" the jury to infer malice
from the use of a dangerous weapon, was not erroneous.
As noted above, the general description of the manslaughter
charge varied in minor, though not insignificant, ways from the
model instruction. The sentence, "So that if the Commonwealth
cannot prove beyond a reasonable doubt that the defendant acted
with malice, in order to obtain a conviction of murder, the
Commonwealth must prove beyond a reasonable doubt the absence of
24
these mitigating circumstances," taken alone, seems to imply
both that (1) a finding of malice would preempt the
consideration of mitigating factors and require a finding of
murder, and (2) the Commonwealth could prove murder in the first
degree without showing malice, but instead proving that there
were no mitigating circumstances. We do not, however, review
the words of an instruction in isolation from each other,
particularly where we are reviewing the instructions for a
substantial likelihood of a miscarriage of justice. See
Commonwealth v. Dyer, 460 Mass. 728, 749 (2011), cert. denied,
132 S. Ct. 2693 (2012). See also Commonwealth v. Oliveira, 445
Mass. 837, 844 (2006). Just two sentences prior, the judge
instructed, "In order to prove that the defendant acted with
malice, the Commonwealth must prove beyond a reasonable doubt
the absence of certain mitigating circumstances." The
instruction clearly delineates the proper rule: malice and
mitigating circumstances are mutually exclusive. See
Commonwealth v. Boucher, 403 Mass. 659, 661-662 (1989). And
earlier, the judge had specifically instructed that, in order to
prove murder in the first degree, "[t]he second element the
Commonwealth must prove beyond a reasonable doubt is that the
killing was committed with malice." The jury were instructed
that the absence of mitigating circumstances alone does not
warrant the return of a verdict of murder in the first degree.
25
The use of excessive force in self-defense instruction was
consistent with the Model Jury Instruction on Homicide 30-31,
and is substantially similar to the instructions given in
Commonwealth v. Britt, 465 Mass. 87, 96 (2013), and Commonwealth
v. Bolling, 462 Mass. 440, 448 (2012). As in the present case,
the defendants in those cases argued that the use of the
permissive phrase "would be justified," as opposed to the
mandatory "must," gave the jury the erroneous impression that,
even if they found excessive use of force in self-defense,
murder was still a possible verdict. See Britt, supra; Bolling,
supra. We conclude, as we did in those cases, that the
instruction in the present case, considered in its entirety, was
not erroneous. See Britt, supra; Bolling, supra.
Finally, the instruction that the jury must convict the
defendant of the most serious crime proved beyond a reasonable
doubt was consistent with the model instruction and was not
erroneous. See Model Jury Instructions on Homicide 65-66
(1999). We are also convinced that, taken as a whole, the
instructions, although flawed, were not erroneous.19,20 In the
19
Because we conclude that the jury instructions were not
erroneous, there is also no merit to the defendant's claim of
ineffective assistance of counsel predicated on defense
counsel's failure to object to these instructions.
20
The defendant also cites to Commonwealth v. Barnacle, 134
Mass. 215, 216 (1883), for the proposition that the jury were
not instructed that the victim need not be armed in order for
26
future, we urge judges to follow the model jury instructions
verbatim to avoid such flaws and ensure a smooth recitation of
the jury charge.
4. Hearsay testimony. As part of the Commonwealth's case,
the prosecutor elicited testimony from Rodriguez concerning an
occasion in which she had shown the defendant one of the
victim's handguns. When the defendant handled the handgun, he
did so through his shirt. The prosecutor asked Rodriguez if the
defendant indicated why he was holding the gun in that manner.
Rodriguez, after first testifying that the defendant did not
explain why he was doing so, reviewed her police statement and
confirmed that she had told police that the defendant was
holding the handgun in that manner in order to avoid getting
fingerprints on the gun. The defendant objected various times
during the line of questioning, and we assume, without deciding,
that he did so when the Commonwealth elicited Rodriguez's
testimony about her police statement. On appeal, the defendant
the defendant's use of deadly force to be justified. The record
does not support this argument; the judge specifically
instructed the jury:
"In considering the issue of reasonableness of any
force used by the defendant, you may consider evidence of
the relevant physical capabilities of the combatants, how
many persons were involved on each side, the
characteristics of any weapons used, the availability of
rooms to maneuver, or any other factors you deem relevant
to the reasonableness of the defendant's conduct under the
circumstances."
27
claims that the testimony was impermissible hearsay and that it
was a gratuitous attack on the defendant's character.
There was no error. The evidence was relevant to explain
how the defendant was able to describe one of the defendant's
guns. Moreover, the testimony was not hearsay, see Commonwealth
v. Cole, 473 Mass. 317, 324-325 (2015) (extrajudicial statements
by party opponent are not hearsay); Mass. G. Evid.
§ 801(d)(2)(A) (2016).
5. Motion for a new trial. In his motion for a new trial,
the defendant argued that (1) his due process rights were
violated when the trial judge did not appoint a qualified
Spanish interpreter for Rodriguez; (2) his right to a public
trial was violated when the court room was closed during jury
selection; (3) he received ineffective assistance of counsel;
and (4) there was newly discovered evidence that might have
affected the outcome of his trial.21 The motion judge (who was
not the trial judge) denied the motion.
"The decision to allow a motion for a new trial lies within
the sound discretion of the judge and will not be reversed
unless it is manifestly unjust or unless the trial was infected
with prejudicial constitutional error" (citation
omitted). Commonwealth v. Gorham, 472 Mass. 112, 117 (2015).
21
The defendant also raised the suppression issue as a
ground warranting a new trial. The motion judge found that this
claim was waived as time barred.
28
Where an appeal from the denial of the defendant's motion for
a new trial has been consolidated with his direct appeal from a
conviction of murder in the first degree, we review both under
G. L. c. 278, § 33E. See Espada, 450 Mass. at 697. Pursuant to
G. L. c. 278, § 33E, we review the denial of the motion for a
new trial "to determine whether there has been a significant
error of law or other abuse of discretion, . . . and whether any
such error creates a substantial likelihood of a miscarriage of
justice" (quotations and citations omitted). Commonwealth v.
Lally, 473 Mass. 693, 698 (2016).
a. Interpreter. Rodriguez, a native Spanish speaker,
testified almost entirely in English.22,23 At one point during
direct examination, defense counsel requested that the court
inquire as to whether Rodriguez would like the assistance of an
interpreter. The judge determined that Rodriguez was not
"showing so much difficulty with the language that she needs an
interpreter."24 Instead, an interpreter was put on stand-by for
22
Rodriguez also testified in English before the grand
jury, and her police statements were in English (although they
were made with the assistance of Spanish-speaking police
officers). The first of those statements specifically indicated
that Rodriguez "read[s], write[s] and understand[s] English."
23
During their deliberation, the jury requested a
transcript of Rodriguez's testimony; the request was denied.
24
The judge also sustained several objections to leading
questions posed by the prosecutor, noting at one point that "the
witness hasn't demonstrated any need for prompts." When the
29
the following day. When cross-examination began, the
interpreter was made available to Rodriguez, the questions were
posed to her in English, and she was allowed to use the
interpreter's assistance as necessary.25 During the course of
cross-examination, the interpreter assisted only on two
instances. The defendant argues that the trial judge's refusal
to allow Rodriguez to testify on cross-examination through an
interpreter restricted his right to present a full defense, in
violation of the Sixth Amendment to the United States
Constitution and art. 12 of the Massachusetts Declaration of
Rights.
By statute, "[a] non-English speaker . . . shall have a
right to the assistance of a qualified interpreter who shall be
appointed by the judge." G. L. c. 221C, § 2. "Non-English
speaker" is defined as "a person who cannot speak or understand,
or has difficulty in speaking or understanding, the English
language, because he uses only or primarily a spoken language
other than English." G. L. c. 221C, § 1. The party claiming a
violation of G. L. c. 221C, § 2, bears the burden of proving
issue was raised the following day at trial, the judge indicated
that "[Rodriguez's] direct demeanor, to me, did not demonstrate
a lot of difficulty understanding English."
25
Defense counsel inquired whether Rodriguez wanted the
assistance of an interpreter, and Rodriguez indicated that she
did. Rodriguez also indicated that she had some trouble
understanding some of the questions on direct examination.
30
that the witness in question was a "non-English speaker." See
Crivello v. All-Pak Mach. Sys., Inc., 446 Mass. 729, 735 (2006).
When the issue was raised as part of the defendant's motion
for a new trial, the motion judge conducted an evidentiary
hearing, at which the defendant called Dr. Michael O'Laughlin, a
certified court interpreter and the director of interpreter
training at Boston University. O'Laughlin reviewed Rodriguez's
testimony at trial and before the grand jury, her statements to
police, and an interview conducted by appellate counsel; he also
conducted two independent standardized tests of Rodriguez's
language skills in order to assess whether Rodriguez qualified
as a non-English speaker.
O'Laughlin concluded that Rodriguez is a limited English
proficient speaker, and that her English proficiency, when
measured by standardized scores, is "intermediate high."
According to the results of that test, Rodriguez "[c]an satisfy
survival needs and routine work and social demands [and] handle
work that involves following oral and simple written
instructions in familiar and some unfamiliar situations. . . .
As to listening comprehension, [she] understands conversations
on most everyday subjects at normal speed when addressed
directly, [but m]ay need repetition, rewording and slower
speech. . . . [A]s to oral communication [she] [f]unctions
independently in survival and many social and work situations
31
but may need help occasionally." O'Laughlin indicated that
Rodriguez's English language skills "would be that of a middle
school student," and that testifying at trial requires a level
of English proficiency at a high school graduate level.
The Commonwealth elicited testimony regarding Rodriguez's
language skills from Shannon Driskell, a longtime friend of the
victim who was a bridesmaid at Rodriguez's wedding to the
victim. Driskell, whose testimony was credited by the motion
judge, observed Rodriguez speaking English on a regular basis.
On those occasions, Rodriguez spoke only English with her
children and the victim. Rodriguez would communicate with
Driskell on the Internet social networking site Facebook using
English. Driskell testified that she did not have difficulty in
communicating with Rodriguez in English.
The motion judge concluded that Rodriguez did not fit the
definition of a "non-English speaker" in need of the assistance
of an interpreter and that, even if she had been so designated,
the qualified interpreter who was made available to her on
cross-examination was sufficient to satisfy the assistance
necessary under G. L. c. 221C. We agree.26
26
At the time of the incident, the witness spoke to her
family in English and held a job as a certified nurse's
assistant, in which she conducted her responsibilities using
English.
32
b. Court room closure. The defendant claims that his
Sixth Amendment right to a public trial was violated because his
family and friends were excluded from jury selection. The
motion judge declined to hold an evidentiary hearing on this
basis, and he denied the defendant's motion outright.
The right to a public trial guaranteed by the Sixth
Amendment extends to the jury selection process, and it is a
well-settled principle that a properly preserved violation of
that right is structural error requiring reversal. See Penn,
472 Mass. at 622. However, "even structural error is subject to
waiver," Commonwealth v. Celester, 473 Mass. 553, 578 (2016),
and "[w]here counsel fails to lodge a timely objection to the
closure of the court room -- as happened in this case -- 'the
defendant's claim of error is deemed to be procedurally
waived.'" Penn, supra at 622, quoting Commonwealth v. LaChance,
469 Mass. 854, 857 (2014), cert. denied, 136 S. Ct. 317 (2015).
Such waiver need not be consented to by the defendant. See
Commonwealth v. Wall, 469 Mass. 652, 672 (2014).
The uncontroverted evidence tends to show that the court
room was closed during jury selection. It also shows that trial
counsel was aware of the court room closure prior to jury
selection, and did not object.27 The court room closure claim is
27
The defendant's motion for a new trial was accompanied by
affidavits from the defendant's mother and sister. Both
33
therefore procedurally waived. Penn, 472 Mass. at 622, quoting
LaChance, 469 Mass. at 857.
However, where the defendant's Sixth Amendment right to a
public trial has been subject to procedural waiver, the
defendant after conviction may still make a collateral attack on
the issue based on ineffective assistance of counsel for failure
to object to the court room closure. See Penn, 472 Mass. at
623. See also LaChance, 462 Mass. at 858. The defendant must
not only make a showing that his attorney was deficient for
failing to make a timely objection but also "show that a
substantial likelihood of a miscarriage of justice arose from
the court room closure." Penn, supra ("The structural nature of
the underlying error does not automatically excuse the defendant
from showing prejudice when advancing an unpreserved claim"
[citation omitted]). See LaChance, supra at 857. The defendant
has not proffered any substantive grounds on which the closure
of the court room during jury selection would have resulted in
any effect on the judgment in the case, and therefore failed to
show prejudice arising from counsel's failure to object.28,29
affidavits aver to the fact that trial counsel was the one who
informed them of the court room closure.
28
The defendant argues that he was prejudiced because trial
counsel's failure to object to the closure of the court room has
resulted in a less favorable standard of review. This alone
does not create a substantial risk of a miscarriage of justice.
See, e.g., Commonwealth v. Penn, 472 Mass. 610, 623 (2015),
34
c. Ineffective assistance of counsel. We review the
defendant's ineffective assistance of counsel claims, brought as
part of an appeal from a conviction of murder in the first
degree, under the substantial likelihood of a miscarriage of
justice standard, pursuant to § 33E. See Commonwealth v.
Lessieur, 472 Mass. 317, 326, cert. denied, 136 S. Ct. 418
(2015). "We consider whether there was an error in the course
of the trial (by defense counsel, the prosecutor, or the judge)
and, if there was, whether that error was likely to have
influenced the jury's conclusion" (quotations and citation
omitted). Id. at 327. The defendant bears the burden of
cert. denied, 136 S. Ct. 1656 (2016); Commonwealth v. Jackson,
471 Mass. 262, 269 (2015), cert. denied, 136 S. Ct. 1158 (2016).
29
The motion judge's decision to deny the defendant's
motion for a new trial without first holding an evidentiary
hearing on the court room closure issue was not erroneous. In
adjudicating arguments made as part of a motion for a new trial,
the motion judge "may rule on the issue or issues presented by
such motion on the basis of the facts alleged in the affidavits
without further hearing if no substantial issue is raised by the
motion or affidavits." Commonwealth v. Drayton, 473 Mass. 23,
31 (2015), quoting Mass. R. Crim. P. 30 (c), as appearing in 435
Mass. 1501 (2001). On the other hand, "[w]hen a substantial
issue has been raised, and supported by a substantial
evidentiary showing . . . the judge should hold an evidentiary
hearing" (citation omitted). Id. The motion judge effectively
assumed the validity of the affidavits attached to the
defendant's motion for a new trial, and still (without error)
denied the motion. See Penn, 472 Mass. at 622, where an
evidentiary hearing was conducted concerning a court room
closure issue and uncovered similar evidence as was assumed by
the motion judge in the present case. The decision to abstain
from holding an evidentiary hearing was appropriate.
35
proving that trial counsel was ineffective. See Commonwealth v.
Alcequiecz, 465 Mass. 557, 563 (2013).30
The defendant argues that trial counsel was ineffective for
failing to (i) properly prepare defense expert witness, a
forensic pathologist, for voir dire examination; (ii) object to
the prosecutor's alleged misstatement of the law of self-defense
during closing argument; and (iii) elicit testimony from
Rodriguez that the victim was using a forearm on the defendant's
throat to hold him down.31,32 The defendant has not satisfied his
burden to prove ineffective assistance of counsel as to any of
his claims. See id.
30
The defendant's claims of ineffective assistance of
counsel are not supported by an affidavit from lead counsel at
trial, but did include one from co-counsel. As a result, we
must rely only on the record as to whether there was a strategic
purpose behind some of counsel's decisions. We keep in mind
that "[r]elief on a claim of ineffective assistance based on the
trial record is the weakest form of such a claim because it is
'bereft of any explanation by trial counsel for his actions and
suggestive of strategy contrived by a defendant viewing the case
with hindsight.'" Commonwealth v. Gorham, 472 Mass. 112, 116
n.4 (2015), quoting Commonwealth v. Peloquin, 437 Mass. 204, 210
n.5 (2002).
31
As mentioned above, the motion judge did not err in
denying the defendant's ineffective assistance claims regarding
the G. L. c. 276, § 33A, telephone rights and the failure to
object to the jury instructions on self-defense and excessive
force in self-defense issues.
32
Applying the standard set forth in Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974), the motion judge denied the
motion as to all the claims of ineffective assistance.
36
a. Failure to prepare expert witness. Prior to
testifying, the expert was subjected to voir dire examination as
to his qualifications and bases to testify on certain subjects.
The judge concluded, based on the voir dire examination, that
the expert would not be allowed to testify as to his opinion
that (1) the lack of clustering of the stab wounds indicated
defensive action on the part of the defendant; and (2) the blood
stains on the floor indicated that the defendant was retreating
from the victim or the victim was chasing the defendant. The
judge determined that an opinion whether the lack of clustering
was indicative of self-defense was inadmissible because "[t]he
jury [do] not need to hear it from the expert. They can draw
that same conclusion if it's to be drawn." The same was true as
to the proposed chasing and retreating testimony, which was "not
within the expertise of the proposed witness." The expert was
allowed to testify to the positioning, trajectory, and lack of
clustering of the stab wounds, and the positioning of the blood
stains, but not to the conclusions he drew from those facts.
The defendant objected to the expert's testimony being so
limited.
Before the jury, the expert testified that it was his
opinion that the victim's wounds were likely inflicted when the
victim and defendant were "face-to-face." He further opined
that there was "no clustering of stab wounds on [the victim],"
37
and that such a lack of clustering "reflects the nature of the
activity used to cause or create those stab wounds that results
in the cluster," such that it was inconsistent with "somebody
holding a knife and repetitively thrusting it in approximately
the same location of the body." He also testified regarding the
fact that the wounds were inflicted in different areas of the
apartment, causing blood to pool on various surfaces in the
room. From that testimony, the defense attorney argued as part
of his closing that the lack of clustering and the positioning
of the blood stains indicated that the parties were moving
around during the altercation, and suggested that these were
indications that there was not an intent to kill.
"The purpose of expert testimony is to assist the trier of
fact in understanding evidence or determining facts in areas
where scientific, technical, or other specialized knowledge
would be helpful." See Commonwealth v. Pytou Heang, 458 Mass.
827, 844 (2011). "Expert testimony is admissible when it will
'help jurors interpret evidence that lies outside of common
experience.'" Commonwealth v. Scott, 464 Mass. 355, 360 n.5
(2013), quoting Commonwealth v. Tanner, 45 Mass. App. Ct. 576,
581 (1998). See Mass. G. Evid. § 702 (2016). "A judge has wide
discretion in qualifying a witness to offer an expert opinion on
a particular question, . . . and [the judge's] determination
38
will not be upset on appeal if any reasonable basis appears for
it" (citations omitted). Pytou Heang, supra at 845.
There are two distinct reasons that convince us that trial
counsel was not ineffective in failing to further prepare the
expert. First, it was not a lack of qualifications that
resulted in two of the expert's conclusions being excluded;
instead, it was the fact that the evidence he sought to proffer
was within the purview of the jury, and would not have "help[ed]
jurors interpret [the] evidence." Scott, 464 Mass. at 360 n.5.
Second, whether trial counsel erred is irrelevant; the areas of
testimony to which the expert proposed in his affidavit that he
would testify if given another chance would either still be
inadmissible or be cumulative of other evidence offered at trial
by that expert or by the Commonwealth's expert. Even assuming
that counsel failed to adequately prepare his expert for voir
dire examination, the defendant has not met his burden of
proving that such a failure would have "influenced the jury's
conclusion" (citation omitted). Lessieur, 472 Mass. at 327.
See Alcequiecz, 465 Mass. at 563.
ii. Failure to object to Commonwealth's closing argument.
The defendant argues that trial counsel's failure to object to
the Commonwealth's closing argument -- which he claims misstated
and distorted the law on self-defense and was not fairly
supported by the evidence -- constitutes ineffective assistance
39
of counsel.33 Because the defendant did not object to the
closing argument at trial, we review it to determine if any
error in failing to object would have created a substantial
likelihood of a miscarriage of justice. Commonwealth v.
Wright, 411 Mass. 678, 681 (1992), S.C., 469 Mass. 447 (2014).
Under that standard, we assess the closing argument "in the
context of the entire argument, and in light of the judge's
instructions to the jury and the evidence at trial" (citation
omitted). Commonwealth v. Carriere, 470 Mass. 1, 19 (2015).
In its closing argument, the Commonwealth argued that the
defendant had "ambush[ed]" the victim, rather than acted in
self-defense.34 The prosecutor later stated:
"The law recognizes there may be circumstances where
someone can defend themselves with a deadly weapon.
First, you must avail yourself of all means to avoid
physical combat. For example, leave through the front
door or back door if you can. . . . Did [the
defendant] do all he could to avoid physical combat
when he told [Rodriguez's neighbor] he wasn't leaving
even though they knew [the victim] was coming home?"
(emphasis added).
Although the emphasized sentence in the Commonwealth's
closing argument was flawed, neither the argument taken as a
33
The defendant does not specify in his brief which portion
or portions of the Commonwealth's closing argument misstated the
law, or how such portion or portions had misstated the law.
34
The prosecutor argued: "Isn't it far more believable
that . . . [the defendant] was waiting for [the victim] to come
in that door and able to ambush him when he came through the
door with this knife he had on a dresser in that bedroom[?]";
and "[The victim] got ambushed."
40
whole nor trial counsel's failure to object to that argument
created a substantial likelihood of a miscarriage of justice.
See id. The single sentence of the Commonwealth's closing
argument that indicated that the defendant did not do all he
could to avoid physical combat because he had, hours before the
altercation, told Rodriguez's neighbor he would not leave the
home carried with it an implication that the defendant's actions
prior to the time of the purported self-defense should be part
of the jury's consideration. However, the rest of the
prosecutor's argument concerning self-defense focused on the
altercation itself. It is apparent that the jury were not
convinced by the prosecutor's premeditation argument, as the
charge of murder in the first degree on the theory of deliberate
premeditation was rejected. To the extent that the argument may
have had any effect on the jury's apparent refusal to recognize
that the victim initiated the assault, our reduction of the
verdict from murder in the first degree to voluntary
manslaughter addresses that concern. See part 6, infra.
iii. Failure to elicit testimony. Finally, the defendant
argues that trial counsel was ineffective because he failed to
elicit testimony from Rodriguez that the victim was holding the
defendant down, using a forearm as a bar across his throat. As
mentioned, Rodriguez gave two statements to police. Only the
second statement indicated that, after the victim came into the
41
house and the altercation began between the victim and the
defendant, she "could see [the victim] on top of [the defendant]
holding [the defendant] down with his left forearm, by his
neck."
The defendant has not met his burden of showing that better
representation would have influenced the jury's conclusion. See
Alcequiecz, 465 Mass. at 563. At trial, Rodriguez testified
that the victim, who was much larger than the defendant, picked
up the defendant, threw him against the air conditioner, and was
on top of him. She also specified that the victim had his hand
on top of the defendant, and that the defendant could not have
gotten away from the victim. Although eliciting a more specific
placement of the victim's hand on the defendant's throat may
have bolstered his claim that he was in fear of his life, it
would have been cumulative of the evidence already offered by
Rodriguez. Further, based on the record, it was not manifestly
unreasonable for trial counsel to avoid references to
Rodriguez's second police statement, given that it included
several potentially inculpatory statements purportedly made by
the defendant.35 See Commonwealth v. Riley, 467 Mass. 799, 808
(2014).
35
For example, Rodriguez told police that the defendant had
told her that if the victim ever came to the apartment, he, the
defendant, would stab the victim.
42
d. Newly discovered evidence. The defendant moved for a
new trial on the basis of newly discovered evidence in the form
of an opinion from a psychologist who, according to his
affidavit, specializes in combat-related treatment. The
defendant sought testimony from the psychologist concerning the
effects that a forearm across someone's throat might cause.
Specifically, he would have testified that such forearm pressure
to the throat can cause an adversary to lose consciousness and
would put an adversary in reasonable fear that he was in
immediate danger of being killed or seriously injured.
The motion judge was entitled to make a ruling on the
defendant's motion on this ground without an evidentiary
hearing. See Commonwealth v. Drayton, 473 Mass. 23, 32 (2015),
quoting Mass. R. Crim. P. 30 (c), as appearing in 435 Mass. 1501
(2001) (only "substantial" issue warrants evidentiary hearing).
To prevail on a motion for a new trial on this ground, "[f]irst,
the defendant must establish that the evidence is 'newly
available,' [and,] [s]econd, the defendant must show that the
evidence 'casts real doubt on the justice of the conviction'"
(citations omitted). Commonwealth v. Cameron, 473 Mass. 100,
104 (2014). See Commonwealth v. Grace, 397 Mass. 303, 305
(1986).
The defendant has not met his burden of establishing that
the proposed testimony is newly available. Commonwealth v.
43
Sullivan, 469 Mass. 340, 350 n.6 (2014) ("Newly available
evidence is evidence that was unavailable at the time of trial
for a reason such as . . . a particular forensic testing
methodology had not yet been developed or gained acceptance by
the courts"). The defendant offers no argument that the
testimony that would have been offered by the psychologist at an
evidentiary hearing could not have been uncovered by the defense
at the time of trial. There was therefore no "substantial"
issue that required the motion judge to hold an evidentiary
hearing. The motion for a new trial was properly denied.36
6. Review under G. L. c. 278, § 33E. The defendant
requests that we exercise our extraordinary authority under
G. L. c. 278, § 33E, to order a new trial or reduce the verdict
of murder in the first degree to voluntary manslaughter. "Our
duty under G. L. c. 278, § 33E, is to consider broadly the whole
36
We are also not convinced (though we need not decide)
that the psychologist's testimony would have been admitted even
if offered at trial. The jury heard testimony that the
defendant reasonably feared that the victim would kill him, as
adduced from their differences in size and physical strengths.
A fellow member of the National Guard testified that the victim
was trained in unarmed combat and that he could incapacitate or
kill another person. Rodriguez testified that the defendant was
pinned down by the larger victim. And the defendant himself
told the police that he "had no choice" but to attack the
victim, and that he did so in self-defense. The psychologist's
testimony, if offered at the time of trial, may have been
cumulative of other testimony, and does not "cast real doubt on
the justice of the conviction." Commonwealth v. Cameron, 473
Mass. 100, 104 (2015), quoting Commonwealth v. Grace, 397 Mass.
303, 305 (1986).
44
case on the law and the facts to determine whether the verdict
is consonant with justice" (quotations and citation omitted).
Commonwealth v. Howard, 469 Mass. 721, 747 (2014). On such
consideration, we "may, if satisfied that the verdict was
against the law or the weight of the evidence, or because of
newly discovered evidence, or for any other reason that justice
may require (a) order a new trial or (b) direct the entry of a
verdict of a lesser degree of guilt." G. L. c. 278, § 33E. See
Commonwealth v. Baker, 346 Mass. 107, 109 (1963) ("If upon our
examination of the facts, we should, in our discretion, be of
opinion that there was a miscarriage of justice in convicting
the defendant of murder in the first degree, and that a verdict
of guilty of murder in the second degree or of manslaughter
would have been more consonant with justice, it is now our power
and duty to so declare"). "Each case depends on its peculiar
facts. No one fact is conclusive. A most important
consideration is whether the jury verdict is markedly
inconsistent with verdicts returned in similar cases" (citation
omitted). Commonwealth v. Colleran, 452 Mass. 417, 432 (2008).
There are a number of factors we have considered in similar
cases in mitigating a verdict of murder in the first degree
under § 33E:
"Those factors include: whether the intent to kill
was formed 'in the heat of sudden affray or combat,'
[Baker, 346 Mass. at 119]; whether the homicide occurred in
45
the course of a 'senseless brawl,' Commonwealth v.
Ransom, 358 Mass. 580, 583 (1971); whether 'a minor
controversy . . . explode[d] into the killing of a human
being,' [Baker], supra at 110; whether '[t]he entire
sequence reflects spontaneity rather than premeditation,'
Commonwealth v. Williams, [364 Mass. 145, 152
(1973)]; whether the defendant carried a weapon to the
scene, id., or left the scene after an initial
confrontation and returned with a weapon to kill the
victim, Commonwealth v. Jones, 366 Mass. 805, 809 (1975);
whether the victim was the first aggressor, [Baker],
supra at 118; whether the defendant and the victim were
strangers, [Ransom], supra at 583, or, if only
acquaintances, whether there had been prior trouble between
them, [Jones], supra at 808; whether the defendant and the
victim had enjoyed a good relationship prior to the
killing, Commonwealth v. Seit, 373 Mass. 83, 94 (1977);
whether alcohol or drugs were involved, [Ransom], supra at
583; the personal characteristics of the defendant, such as
age, Commonwealth v. McDermott, 393 Mass. 451, 460–461
(1984) (seventeen years old), [Jones], supra at 808
(twenty-eight years old); family, id. (married with six
small children); hard working, [Seit], supra at 95;
disability, Commonwealth v. Vanderpool, 367 Mass. 743, 750
(1975); and lack of prior criminal record, [Jones], supra."
Colleran, supra at 431-432. Most recently, in reducing a
verdict from murder in the first degree to voluntary
manslaughter, we principally considered the particulars of the
fight that led to the victim's death. See Commonwealth v.
Niemic, 472 Mass. 665, 679 (2015).
In Jones, 366 Mass. at 805, the defendant was convicted of
murder in the second degree on an indictment charging murder in
the first degree. The defendant had fatally stabbed the victim
after an altercation. Id. at 807. That day, the defendant and
the victim had done a considerable amount of drinking. Id. The
two had gotten into an argument earlier in the day, and their
46
paths crossed again hours later. Id. The argument resumed, the
victim "struck the defendant with a heavy blow on the jaw," and
the defendant retaliated with his knife. Id. At trial, the
defendant testified that he used his knife in self-defense
because the victim had come at him with a straight edge razor.
Id. We were not convinced that the fatal wound was inflicted in
the appropriate exercise of self-defense, but still acknowledged
that the defendant "was reasonably apprehensive that the victim
might use the razor which the defendant knew the victim
possessed," due to the victim's reputation. Id. at 808-809. We
reduced the verdict from murder in the second degree to
manslaughter because of the absence of malice. Id. at 808. We
concluded that the fatal attack was "senseless, undoubtedly the
result of too much drinking," and that the intention to attack
was "formed in the heat of sudden affray or combat, . . . thus
negating the necessary element of malice" (citations omitted).
Id. at 808-809.
There are many factors in the present case that convince us
that a reduction is warranted. The jury rejected the theory of
deliberate premeditation, meaning that it focused its inquiry
exclusively on the altercation itself. There was evidence that
the victim was the initial aggressor;, that the defendant
reasonably could have been and was fearful of the victim, who
was much larger, trained in unarmed combat, and enraged; and
47
that the defendant swung the knife in a wild manner. Moreover,
prior to using the knife in self-defense, the defendant told
Rodriguez to telephone 911. After the altercation, he gave a
full statement to police and never contested his involvement in
the victim's death. The sequence that led to the killing
indicates spontaneity, and reflects that the killing was more
the product of sudden combat and the heat of passion than of
malice. See Jones, 366 Mass. at 809.
It is our conclusion that the jury relied on a confluence
of factors, including a complicated set of instructions, in
reaching their verdict, which, taken together, may have produced
a result not consonant with justice. Voluntary manslaughter due
to mitigating circumstances shares several of the factors
delineated by the judge as to a finding of murder in the first
degree on the theory of extreme atrocity or cruelty.37 See
Commonwealth v. Berry, 466 Mass. 763, 776 (2014) (Gants, J.,
concurring) ("If the jury were to rest their finding of extreme
37
The judge instructed on the following factors to be
considered by the jury in determining whether the defendant was
guilty of murder in the first degree: "One, whether the
defendant was indifferent to or took pleasure in the suffering
of the deceased; two, the consciousness and degree of suffering
of the deceased; three, the extent of the injuries to the
deceased; four, the number of blows delivered; five, the manner,
degree and severity of the force used; six, the nature of the
weapon, instrument or method used; and seven, the disproportion
between the means needed to cause death and those employed").
The third, fourth, fifth, sixth, and seventh factors could also
be indicative of voluntary manslaughter if the jury did not find
malice.
48
atrocity or cruelty on any but the first Cunneen factor, [see
Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983),] the jury
need not focus on the defendant's state of mind. Consequently,
a defendant may be found guilty of murder in the first degree
with extreme atrocity or cruelty where the defendant did not
intend that victim suffer before he died but nonetheless did
suffer an agonizing death"). The evidence appears overwhelming
that the Commonwealth failed to meet its burden in proving the
absence of mitigating circumstances beyond a reasonable doubt
and, for this reason, we are concerned that the prosecutor's
closing argument regarding lying in wait and the judge's failure
to address this possibility in the jury instructions may have
led the jury astray.
Like the fight in Jones, 366 Mass. at 807, the altercation
in the present case was a senseless brawl. The defendant,
through no malicious actions of his own, found himself in a
relationship with a woman whose estranged husband had violent
tendencies and was trained to kill. The weight of the evidence
supports the conclusion that the defendant killed the victim
either as the result of reasonable provocation or through the
use of excessive force in self-defense. Under either
circumstance, the killing was the result of uncontrolled violent
action on the part of the defendant and the victim. Because of
the unusual circumstances of this case, and the fact that it
49
presents multiple factors we have considered in the past when
exercising our power under § 33E, a conviction of voluntary
manslaughter is more consonant with justice, and we exercise our
extraordinary authority under § 33E to reduce the verdict. See
Niemic, 472 Mass. at 679; Jones, 366 Mass. at 809-810.38
The case is remanded to the Superior Court, where the
verdict of murder in the first degree and sentence imposed shall
be vacated. A verdict of guilty of voluntary manslaughter shall
be entered and a sentence imposed.
So ordered.
38
In his closing argument, the prosecutor acknowledged that
the evidence at trial, at a minimum, proved that the defendant
used excessive force in self-defense, and that the jury would be
warranted in returning a guilty verdict as to voluntary
manslaughter.