Commonwealth v. Felix , 476 Mass. 750 ( 2017 )

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SJC-11692
COMMONWEALTH vs. NATALIO FELIX.
Worcester. December 19, 2016. - April 12, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, & Gaziano, JJ. 1
Homicide. Practice, Criminal, Instructions to jury, Assistance
of counsel, Capital case.
Indictment found and returned in the Superior Court
Department on September 21, 2011.
A pretrial motion to suppress evidence was heard by Bruce
R. Henry, J.; the case was tried before Kathe M. Tuttman, J.,
and a motion for a new trial, filed on March 16, 2015, was heard
by her.
Leslie W. O'Brien for the defendant.
Jane A. Sullivan, Assistant District Attorney, for the
Commonwealth.
BOTSFORD, J. The defendant, Natalio Felix, appeals from
his conviction of murder in the first degree and the denial of
his motion for a new trial. The defendant was convicted of the
1
Justice Botsford participated in the deliberation on this
case and authored this opinion prior to her retirement.
2
murder of his wife, Janice Santos, on the theory of deliberate
premeditation.
The defendant's principal arguments on appeal concern the
absence of any instruction on manslaughter; he claims that
although he admittedly killed his wife, the trial evidence, and
particularly his own trial testimony, entitled him to
instructions on both voluntary and involuntary manslaughter, and
that for several reasons, the absence of these instructions
constituted error requiring reversal of his conviction and a new
trial. The defendant also seeks relief pursuant to G. L.
c. 278, § 33E. We affirm the defendant's conviction and the
order denying his motion for a new trial, and decline to grant
relief under G. L. c. 278, § 33E.
1. Background. We summarize facts that the jury could
have found, and reserve discussion of additional evidence in
connection with the issues raised. In May of 2011, the
defendant and the victim had been married for a decade or more.2
They jointly owned a home in Worcester where they lived with
their son and daughter, aged ten and eleven, and the victim's
sixteen year old son from a prior relationship. The defendant
and the victim both held jobs outside the home, the defendant as
a truck driver and the victim at the Superior Court in Worcester
2
The evidence is conflicting as to whether they had married
ten or fourteen years before the homicide.
3
County, but the defendant quit his job around this time, and the
couple argued frequently, often about money. Their
relationship, however, contained no history of physical
violence.
During that month, following an argument with his stepson,
the defendant left the couple's home and stayed with his sister
at her home in Worcester for some time and then went to the
Dominican Republic. He stayed there for about one week before
deciding to return home. Still in contact with the victim via
text messages both while staying with his sister and during his
trip to the Dominican Republic, the defendant asked her to pick
him up at the airport when he returned; she refused.
Nonetheless, he did return to Worcester on June 6, 2011, and
stayed at his mother's house, but slept at a friend's house on
June 7, the night before the homicide.
On the night of June 7, the defendant exchanged a series of
text messages with Tina Rodriguez, a mutual friend of his and
the victim's. Pressing Rodriguez for the gossip she had heard
about his marriage, the defendant sent a text message stating,
"[The victim is] not who you think she is. She's a hypocrite,"
and continued, "She's supposed to be Christian. Laugh out loud
4
. . . . Let's see if God saves her from this one."3 Asked to
elaborate, the defendant answered only, "You will see. You know
who I am." Rodriguez replied, "Remember that you have children
with her. Don't do anything stupid." The defendant ended the
exchange by asking that Rodriguez not tell the victim they had
spoken.
At 12:44 A.M. on June 8, the defendant sent a text message
to his sister saying, "Love sis. Thanks for everything," and
another saying goodbye to his niece. He also asked his niece to
"get his cell phone," to thank his mother "for everything that
she had done for him," and to relay his message that, "if
anything happens to me just let [my mother] know that I'm sorry
and that I love her." Forensic analysis of the defendant's
cellular telephone revealed a calendar entry for June 8, 2011,
reading, "Ju[d]gment Day." There were no other calendar entries
for the six-month period beginning January 1, 2011, except for
one doctor's appointment on a day in March.
The defendant arrived at his and the victim's home early on
the morning of June 8, 2011. His stepson already had left for
school; his son and daughter were awake and getting ready for
school; the victim was in the master bedroom. Having let
3
The victim was very religious, and attended church four or
five nights per week, accompanied by her children but generally
not by the defendant. The defendant exercised at a gym on many
evenings.
5
himself into the house using the keys he still had, the
defendant spoke to no one before entering the master bedroom and
locking the door behind him. The children, both outside the
bedroom, heard "a weird gasp," and "very loud thuds" coming from
inside. Unable to open the bedroom door, they looked underneath
the door and saw a pair of black and white pants, along with
"legs and feet wiggling." The defendant's son asked through the
door, "What are you doing to my mom? Come and show yourself,"
and heard his father's voice respond, "It's me." His daughter
also recognized the defendant's voice saying, "Be quiet" from
within the room. About five minutes later, the defendant
emerged from the bedroom, told his children their mother was
sick, asked whether they had brushed their teeth, and drove them
to school.
The defendant then returned to his and the victim's home.
According to what he told the police later that morning and told
the jury at trial, when the defendant reentered the house, he
did not check on the victim or go to the bedroom, but twice
attempted to hang himself with a rope from the second-floor
staircase. Each time, however, the rope broke, and in falling,
he sustained injuries to his neck and face and lost
consciousness for a period of time. When he regained
consciousness, he drove the victim's automobile to his mother's
house and left his house key and cellular telephone with his
6
stepfather.
The defendant proceeded to the Worcester police station,
arriving there at approximately 9 A.M. He entered the station
and reported to the officer at the front desk that he had killed
his wife. He wore a black and white track suit and the victim's
employment identification badge on a lanyard around his neck.
Police observed that the defendant had dried blood in both
nostrils, a split lip, and a ligature mark on his neck. In
separate morning and afternoon interviews, the defendant spoke
with police, waiving his Miranda rights each time.4
As the defendant's first interview with the police was
taking place, other police officers went to the defendant's home
to investigate. They found the victim lying on the bed of the
master bedroom; she was dead. The victim's neck showed three
ligature marks, and the tissue underneath the marks showed
hemorrhaging consistent with blunt trauma. Her tongue was
bruised, her neck cartilage fractured, and her face spotted with
petechial hemorrhages. The victim died as a result of asphyxia
due to ligature strangulation, which would have required the
4
In the interval between the two police interviews, the
defendant was taken to the hospital for examination and
treatment of his injuries. Both police interviews were video
and audio recorded, and copies of the recordings were in
evidence at trial and played for the jury. In each interview
statement and in his trial testimony, the defendant described
his interactions with the victim on the morning of June 8. We
summarize this evidence, infra.
7
application of sufficient pressure to her neck for three to five
minutes.5
In September, 2011, a Worcester County grand jury indicted
the defendant for murder. Because the victim had worked in the
Superior Court in Worcester County, the case was transferred by
agreement of the parties to the Superior Court in Middlesex
County. After an evidentiary hearing, a judge of the Superior
Court denied the defendant's motion to suppress his statements
to the police, and the case was tried before a second Superior
Court judge in October, 2012. The jury were instructed on
murder in the first degree on theories of premeditation and
extreme atrocity or cruelty, and also murder in the second
degree; the judge declined to instruct on voluntary or
involuntary manslaughter. The jury found the defendant guilty
of murder in the first degree based on deliberate premeditation,
and he was sentenced to life in prison without parole.
5
Although the specific murder weapon was not identified,
when the police went to the defendant's and the victim's house
on the morning of June 8, 2011, they found various cords in
rooms and in the halls on both floors of the house. Police
collected "anything that appeared to be out of place," including
a black telephone charger found lying on the floor next to the
bed in the master bedroom; a blue rope in the first-floor hall;
a knotted, cut white electrical cord also found in the first-
floor hall; a blue cord in the second-floor hall; a blue rope
tied to the second-floor banister; and a cut white electric cord
recovered from the daughter's bedroom. The record does not
indicate that any forensic analysis of these cords and ropes was
conducted.
8
The defendant appealed from his conviction and, represented
by new appellate counsel, filed a motion for a new trial in
March, 2015. He argued in the motion that his trial counsel's
failure to request a voluntary manslaughter instruction had
deprived him of a viable defense and constituted ineffective
assistance of counsel. After a nonevidentiary hearing, the
trial judge denied the motion in a written memorandum of
decision. The defendant appealed from the denial of his motion,
which we consider along with the defendant's appeal from his
conviction.
2. Discussion. a. Manslaughter instructions. The
defendant argues that his trial counsel rendered ineffective
assistance by failing to request a jury instruction on voluntary
manslaughter based on heat of passion caused by reasonable
provocation or sudden combat, and contends alternatively that
even if his trial counsel is found to have raised the
possibility of a voluntary manslaughter instruction, the judge's
declining to give it created a substantial likelihood of a
miscarriage of justice that requires reversal of his conviction.
He argues further that the judge committed error in declining
his request for a jury instruction on involuntary manslaughter,
and claims that reversal is required for this reason as well.
For the reasons we discuss hereafter, we disagree that
reversible error occurred. We begin, however, by summarizing
9
the defendant's statements to the police6 and trial testimony
describing his encounter with the victim on the morning of June
8, 2011, because these provide the sources of trial evidence on
which the defendant's arguments are based and the only sources
on which they could be based.
i. The defendant's statements and trial testimony. The
defendant initially told a police officer in the station lobby
that he had killed his wife. Brought upstairs for questioning,
he told detectives that he had gone to his house that morning
hoping to reconcile with his wife, but instead they fought. He
could not recall which of them had initiated the struggle,
saying, "We didn't hit each other. We just grabbed each other"
and "just started swinging at each other."7 Asked whether she
had hit him "with anything," the defendant indicated that she
had not.8 Rather, "[S]he was just punching me and stuff. . . .
And then I lost it." Although a "struggle" ensued on the floor,
he could not account for the victim's return to the bed because
as soon as they started arguing, he "blanked out." To the
6
The video and audio recordings of both police interviews
were played for the jury during trial and admitted as trial
exhibits. See note 4 and accompanying text, supra.
7
Although the record is silent as to the victim's and the
defendant's relative sizes, it was undisputed that the defendant
lifted weights at least three or four times per week.
8
The defendant denied that his wife had caused his
injuries, explaining that they were self-inflicted.
10
question whether he had punched the victim, the defendant
responded, "No. I strangled her." He could not remember
actually strangling the victim, saying that after he "just
snapped," it was "all a blank." Indeed, throughout both police
interviews, he repeatedly said that he had "just snapped," and
that he did not "remember anything," adding, "My head was going
crazy," and "I was just crazy."
When asked about his suicide attempts, the defendant
explained that he "couldn't live with [him]self" after
strangling the victim. He also said that he "realized what [he
had] done" when he regained consciousness after the failed
attempts. The defendant told police that "after [he] woke up"
he drove directly to the station, and denied making any stops or
telephone calls. When police asked about his cellular
telephone, the defendant told them alternately that he did not
have it, that it had been disconnected, that he did not know
what he had done with it, and that he did not know where it was.
The defendant's trial testimony about the morning of June 8
was similar in most respects to his statements to police, but
newly introduced the idea that his wife had initiated the fight.
He testified that he went to the house on the morning of June 8
with peaceful intent to "get [his] family back." When his wife
saw the defendant in their bedroom, however, she immediately
asked, "What are you doing here?" and "lunged" at him. After
11
the victim "started swinging at" and "punching" the defendant,
he "just snapped" and remembered nothing that followed until he
emerged from the bedroom to speak to the children.
During a charge conference that preceded the defendant's
trial testimony, the defendant requested a jury instruction on
manslaughter -- without specifying whether he was requesting
voluntary, involuntary, or both -- based on anticipated evidence
that he "blacked out, that he did not intend to harm or kill his
wife." The Commonwealth opined that the defendant's claim to
have "blacked out" or "snapped" did not "rise to the level of
either voluntary or involuntary manslaughter." The judge saw no
evidence warranting jury instructions on "heat of passion on
reasonable provocation" or "[h]eat of passion induced by sudden
combat." She also concluded that no evidence warranted an
involuntary manslaughter instruction. At the final charge
conference, after the close of the evidence, the defendant
specifically requested an involuntary manslaughter instruction.
The judge denied the request, and no manslaughter instructions
were given to the jury.
"If any view of the evidence in a case would permit a
verdict of manslaughter rather than murder, a manslaughter
charge should be given" (citation omitted). Commonwealth v.
Sirois, 437 Mass. 845, 853 (2002). No matter how incredible a
defendant's testimony, "he is entitled to an instruction based
12
upon the hypothesis that it is entirely true." Commonwealth v.
Acevedo, 446 Mass. 435, 443 (2006), quoting Commonwealth v.
Campbell, 352 Mass. 387, 398 (1967).
ii. Voluntary manslaughter. As previously stated, the
defendant argues that trial counsel was ineffective for failing
to request an instruction on voluntary manslaughter. The
portion of the trial record just summarized, however, indicates
that regardless of whether the defendant made such a request,
the judge clearly considered the question of a voluntary
manslaughter instruction, ultimately deciding that the evidence
did not warrant giving it. In the end, it is unimportant
whether we analyze the absence of an instruction on voluntary
manslaughter as a claim of ineffective assistance of counsel or
a claim of judicial error, because the question raised by both
claims is whether the absence of a voluntary manslaughter
instruction, whether caused by counsel or the judge, created a
substantial likelihood of a miscarriage of justice by creating
an error that likely influenced the jury. See Commonwealth v.
Wright, 411 Mass. 678, 681-682 (1992), S.C., 469 Mass. 447
(2014).
A voluntary manslaughter instruction on the theory of
13
provocation9 requires evidence raising a reasonable doubt "that
something happened which would have been likely to produce in an
ordinary person such a state of passion, anger, fear, fright, or
nervous excitement as would eclipse his capacity for reflection
or restraint, and that what happened actually did produce such a
state of mind in the defendant." Commonwealth v. Walden, 380
Mass. 724, 728 (1980). See Model Jury Instructions on Homicide
64-65 (2013).10 By this standard, the defendant's trial
testimony may have demonstrated subjective provocation. We are
not to judge his credibility, Acevedo, 446 Mass. at 442-443, and
he testified repeatedly that he had not intended to kill the
victim but snapped after she lunged at him and started punching
him. If the question whether to give a manslaughter instruction
is at all close, especially in a case like this one where the
defendant testifies, prudence favors giving the instruction.
However, a theory of reasonable provocation also requires
an objective showing that the precipitating event would have
9
Both in discussing voluntary manslaughter during the
first charge conference and in her memorandum of decision on the
defendant's motion for a new trial, the judge focused on sudden
combat. On appeal, however, the defendant emphasizes
provocation. The theories are closely related, and the
distinction does not make a difference in this case.
10
Although the 2013 Model Jury Instructions on Homicide had
not yet been formally approved by this court at the time of
trial, the trial judge informed the parties that she would be
using the new instructions, and used them in charging the jury.
14
provoked heat of passion in the ordinary person. Walden, 380
Mass. at 728. See Commonwealth v. Pierce, 419 Mass. 28, 31
(1994). Accordingly, "physical contact between a defendant and
a victim is not always sufficient to warrant a manslaughter
instruction, even when the victim initiated the contact."
Walden, supra at 727. This may be especially true where the
defendant outweighs and is physically far more powerful than the
victim, and the defendant uses a weapon or excessive force.
See, e.g., Commonwealth v. Bianchi, 435 Mass. 316, 329 (2001)
("Bianchi's further testimony that the victim punched him in the
face during their 'argument' adds little to his claim of
provocation, where he intentionally precipitated the
confrontation in violation of the protective order, was a
weightlifter who outweighed the victim by more than 170 pounds,
and was armed with a fully loaded weapon"); Commonwealth v.
Parker, 402 Mass. 333, 335, 344 (1988), S.C., 412 Mass. 353
(1992) and 420 Mass. 242 (1995) (in choking murder of elderly
disabled man, provocation "untenable" despite defendant's
testimony that victim had twice punched him in face);
Commonwealth v. Brown, 387 Mass. 220, 227 (1982) (evidence that
unarmed victim choked defendant, her husband, with his shirt did
not amount to provocation warranting manslaughter instruction,
especially where he stabbed victim twenty-seven times);
Commonwealth v. Rembiszewski, 363 Mass. 311, 321 (1973), S.C.,
15
391 Mass. 123 (1984) ("It is an extravagant suggestion that
scratches by the wife could serve as provocation for a malice-
free but ferocious attack by the defendant with a deadly
instrument").11
Here, the evidence supporting objective provocation was
weak: according to his trial testimony, the defendant showed up
uninvited and surprised the victim by entering the bedroom as
she was getting dressed; he perceived immediately that the
victim did not want him there, and locked the bedroom door; and
in response, the victim "lunged at" and punched him. The
defendant did not provide any information in his testimony or
otherwise as to the force of the punch or where on his body it
landed -- although when speaking to the police soon after the
homicide, the defendant stated that the injuries on his face and
to his neck were not caused by the victim but were the result of
his failed attempts to hang himself. In these circumstances,
11
The judge's decision on the defendant's motion for a new
trial reasoned that the objective prong was unmet in part
because the victim presented no "threat of serious harm" to the
defendant, citing Commonwealth v. Ruiz, 442 Mass. 826, 838-839
(2004). Although, as the cases just cited in the text reflect,
relative size and strength of a defendant and a victim may be a
pertinent factor in evaluating whether a voluntary manslaughter
instruction is warranted (on theories of either reasonable
provocation or sudden combat), and in that vein, the fact that
the victim did not pose a threat of serious physical harm may
itself be pertinent, it is by no means required that a victim
pose such a threat in order for a voluntary manslaughter
instruction to be required.
16
whether or not the victim's conduct caused the defendant himself
to "snap," her conduct does not appear to be the sort that is
objectively likely to "eclipse [an ordinary person's] capacity
for reflection or restraint." Walden, 380 Mass. at 728.
Even if, in light of the defendant's testimony, the better
course to follow here would have been to give a voluntary
manslaughter instruction, reversal is not required. That is, if
we were to assume that there was error -- either in counsel's
failure specifically to request a voluntary manslaughter
instruction or in the judge's failure to give it -- the error
was not "likely to have influenced the jury's conclusion."
Wright, 411 Mass. at 682. The evidence was undisputed that
irrespective of what started the physical interaction between
the defendant and the victim, she died from being strangled by a
ligature, and the defendant was the person who strangled her.
Even if the jury were to have found, as the defendant stated,
that the defendant had returned home on the morning of the
homicide with peaceful intent to reconcile and the victim
punched him upon seeing him in the bedroom, the time required to
strangle the victim with a ligature supported a finding of
deliberate premeditation inconsistent with sudden provocation.
See Commonwealth v. Garabedian, 399 Mass. 304, 317 (1987)
(although defendant arrived at scene of crime unarmed and with
peaceful intent, heat of passion did not mitigate deliberately
17
premeditated murder by strangulation and blunt force). Compare
Commonwealth v. Vargas, 475 Mass. 338, 366 (2016) (reducing
murder in first degree to voluntary manslaughter where jury had
rejected theory of deliberate premeditation). By the
defendant's own admission, he and the victim had been "arguing
for weeks" before the murder. See Commonwealth v. Zagrodny, 443
Mass. 93, 107 (2004) (no voluntary manslaughter instruction
required, where marital tension was hardly "sudden" given that
relationship between victim and defendant had been strained by
financial difficulties and they had argued day before killing).
The night before the murder, he bid farewell to family members,
arranged for them to collect his cellular telephone, and ignored
a friend's warning not to do "anything stupid." He created a
calendar entry for June 8 called "Ju[d]gment Day," entered the
house when the family member best positioned to protect the
victim would be absent, and locked the bedroom door behind him.
After strangling the victim, the defendant told his children
their mother was sick and drove them to school. He did not
check on her, but twice attempted suicide "because [he] couldn't
live with [him]self." Before going to the police station, he
left his cellular telephone with his stepfather but later
claimed that he did not have it, that it had been disconnected,
that he did not know what he had done with it, and that he did
not know where it was. See Sirois, 437 Mass. at 853-855 & n.9
18
(defendant's statement to police and conduct after shooting wife
demonstrated that victim's act of pointing gun at defendant did
not generate passion, anger, fear, fright, or nervous excitement
required for reasonable provocation).
The jury's verdict of murder in the first degree by
deliberate premeditation was strongly supported by the evidence,
and in the circumstances of this case, we are persuaded that it
was highly unlikely that the jury would have been influenced by
an instruction on voluntary manslaughter. There was no
substantial likelihood of a miscarriage of justice on account of
the absence of this instruction.
iii. Involuntary manslaughter. The defendant also claims
error in the judge's denial of his request to instruct the jury
on involuntary manslaughter. Again, if any view of the evidence
would permit a verdict of manslaughter -- whether voluntary or
involuntary -- rather than murder, a manslaughter instruction
should be given. Commonwealth v. Degro, 432 Mass. 319, 330
(2000), and cases cited.
The defendant was not entitled to an instruction on
involuntary manslaughter in this case. "A verdict of
involuntary manslaughter is warranted 'only where the defendant
caused an unintentional death (1) during the commission of an
act amounting to wanton or reckless conduct, or (2) during the
commission of a battery'" (citation omitted). Degro, 432 Mass.
19
at 331. With respect to the latter, under our cases, the
battery in question must be one that does not amount to a
felony, but one that the defendant knew or should have known
endangered human life. See Commonwealth v. Simpson, 434 Mass.
570, 590 (2001); Commonwealth v. Catalina, 407 Mass. 779, 783
(1990). See also Model Jury Instructions on Homicide 73, 87-90
(2013).
The defendant requested an involuntary manslaughter
instruction based on this circumstance, that is, based on
commission of a battery not amounting to a felony. But the
evidence in the case was that the defendant placed a ligature
around the victim's neck and pulled with sufficient force for
three to five minutes to cut the flow of oxygen to the victim's
brain, cause hemorrhaging to the underlying tissue, a fracture
to her neck cartilage, and petechial hemorrhages on her face.
"An involuntary manslaughter charge is not required when it is
obvious that the risk of physical harm to the victim creates a
'plain and strong likelihood that death would follow.'" Degro,
432 Mass. at 331, quoting Commonwealth v. Brooks, 422 Mass. 574,
578 (1996). See Commonwealth v. Linton, 456 Mass. 534, 552–553
(2010) (in light of medical examiner's undisputed testimony
regarding physical force used in strangling victim, no
reasonable jury could have concluded that defendant lacked
malice where he manually strangled victim for at least ninety
20
seconds, did not call for emergency aid, and left victim
unconscious behind locked door).12
There was no error in declining to give an instruction
unwarranted by the evidence. See Linton, 456 Mass. at 553,
citing Commonwealth v. Nardone, 406 Mass. 123, 132 (1989)
("judge should not instruct jury on lesser offense not supported
by reasonable view of evidence").
b. "Cool reflection." Although he did not object at
trial, the defendant contends that the judge's failure to inform
the jury of a requirement of "cool reflection" in her
instruction defining deliberate premeditation as an element of
murder in the first degree created a substantial likelihood of a
miscarriage of justice. A judge defining deliberate
premeditation for a jury is not obligated to inform them that
they must find that the defendant decided to kill after having
an opportunity for "cool" reflection. Where that phrase is not
required, Commonwealth v. LeClair, 429 Mass. 313, 318 & n.7
(1999), and where the trial judge here instructed the jury using
12
See also Commonwealth v. Mendes, 441 Mass. 459, 476
(2004) (risk created by "prolonged and forceful strangulation
. . . constitutes a plain and strong likelihood of death");
Commonwealth v. Fitzmeyer, 414 Mass. 540, 547–548 (1993)
(involuntary manslaughter instruction not warranted where
evidence indicated defendant choked victim to death);
Commonwealth v. Garabedian, 399 Mass. 304, 315–316 (1987)
(involuntary manslaughter instruction not warranted where
defendant strangled victim and threw rocks at her face).
21
the Model Jury Instructions on Homicide,13 there was no error
and, accordingly, no substantial likelihood of a miscarriage of
justice.
c. Review pursuant to G. L. c. 278, § 33E. Finally, the
defendant argues that pursuant to G. L. c. 278, § 33E, we should
reduce the murder verdict because there is reason to doubt that
he acted with deliberate premeditation. After reviewing the
entire record of the case, we decline to do so.
Judgment affirmed.
Order denying motion for
a new trial affirmed.
13
Specifically, the judge instructed as follows:
"The third element is that the defendant committed the
murder with deliberate premeditation, that is, he decided
to kill after a period of reflection. Deliberate
premeditation does not require any particular length of
time of reflection. A decision to kill may be formed over
a period of days, hours or even a few seconds. The key is
the sequence of the thought process. First, the
consideration of whether to kill. Second, the decision to
kill, and third the killing arising from that decision.
There is no deliberate premeditation where the action is
taken so quickly that a defendant takes no time to reflect
on the action and then decide[s] to do it."
This instruction tracked the language in Model Jury Instructions
on Homicide 39-40 (2013).