Commonwealth v. Camacho

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-11138

COMMONWEALTH vs. JESSE CAMACHO.

Suffolk. May 8, 2015. - September 8, 2015.

Present: Gants, C.J., Cordy, Duffly, Lenk, & Hines, JJ.

Homicide. Firearms. Assault and Battery by Means of a
Dangerous Weapon. Armed Assault with Intent to Murder.
Defense of Others. Evidence, Prior violent conduct,
Relevancy and materiality, Hearsay, Flight, Disclosure of
evidence, Exculpatory. Practice, Criminal, Capital case,
Discovery, Disclosure of evidence, Instructions to jury,
Assistance of counsel, Argument by prosecutor.

Indictments found and returned in the Superior Court
Department on April 2, 2008.

The cases were tried before Patrick F. Brady, J.; a motion
for discovery and for a new trial, filed on January 11, 2013,
was heard by him; and a motion for reconsideration was
considered by him.

Elizabeth A. Billowitz for the defendant.
Zachary Hillman, Assistant District Attorney (Patrick M.
Haggan, Assistant District Attorney, with him) for the
Commonwealth.

CORDY, J. In the early morning hours of January, 24, 2008,

Jeffrey Santiago was shot and killed at a night club in Chelsea.
 2

Surveillance footage and multiple eyewitnesses identified the

defendant, Jesse Camacho, as the shooter. The defendant was

charged with murder in the first degree, unlawfully carrying a

firearm, assault and battery by means of a dangerous weapon, and

armed assault with intent to murder. At trial, the Commonwealth

proceeded with respect to the murder charge on theories of

deliberate premeditation and extreme atrocity and cruelty. The

defendant contended that he acted in defense of another. A jury

found the defendant guilty on all charges.

On appeal, the defendant claims several errors, including

error in the trial judge's rulings excluding both so-called

Adjutant evidence of prior violent acts of the victim and his

friends, see Commonwealth v. Adjutant, 443 Mass. 649 (2005), and

statements the defendant made to his girl friend.1 We find no

reversible error arising from the defendant's claims. Further,

we conclude that there is no basis for exercising our authority

under G. L. c. 278, § 33E, to reduce the verdict of murder to a

lesser degree of guilt or order a new trial. Accordingly, we

affirm the defendant's convictions.

Background. We recite the facts in the light most

favorable to the Commonwealth, reserving certain details for our

1
The defendant also raises claims related to the judge's
jury instruction, claims of ineffectiveness of trial counsel,
and errors in the denial of his postconviction motions for
discovery.
 3

analysis of the issues raised on appeal. On the evening of

January 23, 2008, the victim went to a nightclub (club) in

Chelsea with his friends Toulou Thach and Gabriel Rodriguez.

Once there, they met up with Edward Vozzella and Kevin Reis.

The defendant went to the same club that night, arriving with

his friend Mario Sunsin and meeting up with Marcelo Miranda, who

had arrived with his friends Danny Diaz and another man.

The defendant, Sunsin, and Miranda were members of the Tiny

Rascals Gang (TRG). TRG had prior problems with the Bloods, a

rival gang, of which Rodriguez was a member. Sunsin and Miranda

were familiar with Rodriguez, as Rodriguez and Miranda had

previously been in a fight that resulted in Miranda's

hospitalization. More recently, Sunsin and Miranda had thrown

Rodriguez out of a hotel room, forcing him to walk home in the

cold in his underwear.

On Miranda's arrival at the club earlier that night, he saw

Rodriguez and asked him if there was going to be any trouble.

Rodriguez replied, "No." Diaz testified that he had had a

confrontation at the door of the club with a man he later

identified as the victim. Eventually, the defendant and his

group sat down to watch the club's dancers perform, while

members of the victim's group congregated by the bar. At this

point, the victim wandered toward the club's stage and stood
 4

against a wall behind the defendant, conversing with a bouncer

and watching the dancers.

Subsequently, the victim's group left the bar area and came

over to stand behind the defendant and his group of friends.

The victim conversed with his friends for a few moments before

moving away from them towards the dancers' entrance to the

stage. Meanwhile, Rodriguez sat down next to Miranda, and the

two conversed for a few minutes before Rodriguez went back to

his group of friends. Miranda told the defendant's group to

keep their heads up because "something could happen." Almost

immediately after Rodriguez left the seat next to Miranda,

Rodriguez threw a beer bottle at Sunsin's head.2 Sunsin then

tackled Rodriguez, the two men fell to the ground, and some of

the victim's group jumped on top of Sunsin and started to hit

him.

As Sunsin tackled Rodriguez, the defendant jumped up from

his seat, took out a firearm, "rack[ed]" it, and started firing

at the victim's group. While the victim, Vozzella, and Joseph

Upton (a bouncer) were attempting to flee from the gunfire,

shots struck them.3 The victim subsequently fell to the ground.

2
Mario Sunsin testified that the bottle hit him in the
head, but there was conflicting evidence from at least one
witness as to whether the bottle actually hit him.
3
Sunsin may also have been hit by the defendant's gunfire.
 5

As the defendant chased the fleeing group out of the club, he

approached the victim, who remained lying on the floor, and shot

him two more times from less than two feet away.4 The defendant

then left the bar, attempting to shoot others as they ran. He

fled Massachusetts days after the shooting and was apprehended

in Mexico nine months later.

Procedural history. In April, 2008, a grand jury returned

indictments charging the defendant with murder in the first

degree, in violation of G. L. c. 265, § 1; unlawfully carrying a

firearm, in violation of G. L. c. 269, § 10 (a); two counts of

assault and battery by means of a dangerous weapon, in violation

of G. L. c. 265, § 15A; and two counts of armed assault with

intent to murder, in violation of G. L. c. 265, § 18 (b). The

jury rejected the defendant's claim of defense of another and

convicted him on all the indictments, including murder in the

first degree under theories of deliberate premeditation and

extreme atrocity and cruelty.

The defendant was sentenced to life imprisonment for murder

in the first degree; from four to five years for unlawfully

carrying a firearm, concurrent with his sentence for murder;

from ten to twelve years for armed assault with intent to murder

Upton, consecutive to his sentence for murder; and from ten to

4
The medical examiner testified that these two gunshot
wounds to the victim's chest were fatal.
 6

twelve years for armed assault with intent to murder Vozzella,

consecutive to his sentence for armed assault with intent to

murder Upton.5 The defendant's convictions of assault and

battery by means of a dangerous weapon were placed on file. The

defendant filed a notice of appeal.

In January, 2013, the defendant filed a motion for

postconviction discovery of gang-related evidence and a motion

for a new trial. He subsequently filed an amended motion for a

new trial, presenting an additional issue of ineffective

assistance of counsel. On June 28, 2013, the trial judge denied

the defendant's discovery motion and partially denied the

defendant's amended motion for a new trial, ordering an

evidentiary hearing solely on the issue of ineffective

assistance of trial counsel. In January, 2014, the judge denied

the remainder of the defendant's amended motion for a new trial,

as well as a motion to reconsider the denial of his discovery

motion. The defendant appealed both of these rulings.

The defendant subsequently filed a motion to reconsider the

denial of his amended motion for a new trial, which was denied.6

The present case represents the defendant's consolidated appeal

5
The defendant's sentences for assault with intent to
murder were later changed to run concurrently with each other.
6
The defendant also filed a further amendment to his motion
for a new trial, which was subsequently declared moot.
 7

from his convictions as well as the denials of his motions for a

new trial and for postconviction discovery.

Discussion. "When this court reviews a defendant's appeal

from the denial of a motion for a new trial in conjunction with

his direct appeal from an underlying conviction of murder

. . . , we review both under G. L. c. 278, § 33E." Commonwealth

v. Burgos, 462 Mass. 53, 59, cert. denied, 133 S. Ct. 796

(2012). In so doing, "[w]e first inquire if the denial of the

motion was based on an error of law or an abuse of discretion.

. . . If so, we then must determine whether such error create[d]

a substantial likelihood of a miscarriage of justice" (citation

omitted). Commonwealth v. Leng, 463 Mass. 779, 781 (2012). "We

extend special deference to factual determinations made by a

motion judge who was also the trial judge, as here" (citation

omitted). Id.

1. Adjutant evidence. At the time of trial, the law of

this Commonwealth, as delineated in Adjutant, 443 Mass. at 664,

was, "where 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"

(emphasis added). Such evidence "may be admitted as tending to

prove that the victim and not the defendant was likely to have
 8

been the 'first aggressor'" because it may show "that the victim

acted in conformance with his character for violence."

Adjutant, 443 Mass. at 654. This evidence has "substantial

probative value," id. at 656, when used exclusively for this

"limited purpose." Id. at 660.

Nearly three years after the defendant's convictions, we

decided Commonwealth v. Chambers, 465 Mass. 520, 527-530 (2013),

which clarified the breadth of admissible prior violent acts

under Adjutant. In Chambers, we held that the definition of

"first aggressor" included not only 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." Id.

at 529-530.

At trial, the defendant's principal defense was that he

reasonably used force to defend Sunsin against assault. On

appeal, he argues that the judge erred, under Adjutant, in

barring him from introducing evidence of the past violent crimes

of the victim, Rodriguez, and Reis. Conceding that there was no

dispute as to who was the first aggressor, the defendant

nonetheless submits that such evidence was admissible because

the victim, Rodriguez, and Reis were among the group that jumped

on Sunsin. Accordingly, he contends that evidence of their
 9

violent pasts would better contextualize any conflicting

evidence of the events and better assist the jury in determining

whether the Commonwealth met its burden of proving that the

defendant did not act in defense of another.

The defendant further contends that this evidence is

admissible under Chambers because, although it was undisputed at

trial that Rodriguez was the original first aggressor, it was

disputed whether Rodriguez or the defendant escalated the

altercation by initiating deadly force. As the defendant

objected to the exclusion of the proffered evidence at trial, we

review for prejudicial error.7 See Commonwealth v. Morales, 464

Mass. 302, 313 n.19 (2013).

7
The Commonwealth acknowledges that the defendant objected
to the judge's interpretation of Commonwealth v. Adjutant, 443
Mass. 649 (2005), but argues, for the first time on appeal, that
the defendant substantively relies on the decision of this court
in Commonwealth v. Chambers, 465 Mass. 520, 527-530 (2013).
Accordingly, the Commonwealth submits that the defendant's claim
should now be reviewed under the standard of a substantial
likelihood of a miscarriage of justice. Chambers was published
in June, 2013, approximately six months after the defendant
filed his original motion for a new trial (but prior to the
filing of his amended motions). We agree with the defendant
that the Commonwealth's position is an excessively narrow
interpretation of issue preservation. On appeal, the defendant
does not object to the exclusion of the proffered evidence on
grounds wholly distinct from Adjutant, but rather cites to
Chambers to the extent that Chambers offers a straightforward
clarification of key language in Adjutant. The record reflects
that the primary thrust of the defendant's Adjutant argument has
remained consistent throughout the evolution of this case.
Therefore, because the defendant's trial objection "sufficiently
apprised the judge of the grounds on which it was based," and he
continues to object to the exclusion of the evidence on these
 10

The defendant's claim that the judge erroneously excluded

the proffered evidence under Adjutant, and as later clarified by

Chambers, is meritless, as both cases are inapplicable here. It

was undisputed at trial that Rodriguez was the first aggressor

who started the chain of events that resulted in the victim's

death. Accordingly, when assessed exclusively through the lens

of Adjutant, the judge correctly determined that evidence of the

victim's, Rodriguez's, and Reis's prior violent acts was

irrelevant to prove who acted as the first aggressor.8 See

Commonwealth v. Gaynor, 73 Mass. App. Ct. 71, 75 (2008) (no

error in excluding proposed Adjutant evidence where identity of

first aggressor not in dispute).

same grounds (supplemented only by a case that further
interprets these grounds), his argument was sufficiently
preserved. Commonwealth v. Cancel, 394 Mass. 567, 574 (1985).
See Commonwealth v. Mullane, 445 Mass. 702, 717 n.9 (2006)
(issue preserved where defendant only objected to breadth of
term's definition at trial and argued for specific definition of
same term on appeal).
8
When the judge made his initial ruling on this issue, he
was correct to rely on the narrow definition of "first
aggressor" as delineated in Adjutant, rather than the broader
definition subsequently announced by Chambers. In Chambers, we
even acknowledged that, under prior precedent, a judge
reasonably could have believed that Adjutant evidence was
inadmissible where it was undisputed who initiated the first
confrontation. Chambers, 465 Mass. at 527-528. However, as
detailed infra, Chambers also does not support the proffered
evidence's admission, and therefore the judge's ruling was
proper under either understanding of "first aggressor."
 11

Our conclusion remains unchanged even in the wake of

Chambers. Chambers merely expanded Adjutant to hold that

"[w]here a victim's prior act or acts of violence demonstrate a

propensity for violence, . . . Adjutant evidence is as relevant

to the issue of who initiated the use or threat of deadly force

as it is to the issue of who initiated an earlier nondeadly

assault, and such evidence may be admitted to assist the jury

where either issue is in dispute" (emphasis added; other

emphasis omitted). Chambers, 465 Mass. at 529-530.

Essentially, Chambers clarified the reach of the term "first

aggressor," but did nothing to disturb our ruling that the

identity of this person must remain in dispute. Id.

In Morales, 464 Mass. at 307, we explained the rationale

underlying Adjutant: "[T]here was a greater danger that the

exclusion of the evidence concerning the victim's violent acts

could prejudice the defendant because the evidence might offer

the only way for a jury to assess the validity or likelihood of

the defendant's account of what happened" (emphasis added).

Moreover, in Adjutant, 443 Mass. at 651, we explicitly noted

that where "[t]here was conflicting testimony as to when the

defendant and the victim armed themselves for their fatal

confrontation," Adjutant evidence "may be the jury's only means

of assessing the likelihood of the defendant's account of the

incident." Id. at 650 n.1.
 12

In contrast to cases in which Adjutant evidence was

admitted to assist the jury in assessing conflicting evidence

regarding the identity of the first aggressor, see, e.g.,

Chambers, 465 Mass. at 525-526 (circumstances of deadly

altercation in dispute); Commonwealth v. Pring-Wilson, 448 Mass.

718, 723-724 (2007) (defendant's version of fight "differed

markedly" from that of witnesses), here the significant events

that occurred prior to the defendant shooting the victim are not

in dispute such that the proposed evidence fits into "the narrow

framework . . . that Adjutant posits." Morales, 464 Mass. at

310 n.13. Surveillance footage and independent witness

testimony alike establish that Rodriguez began the fight by

throwing a bottle at Sunsin,9 Sunsin tackled Rodriguez, Sunsin

and Rodriguez fell to the ground, a melee ensued where

individuals from the victim's group jumped on Sunsin and started

to hit him, and the defendant began firing a gun into the crowd.

Given this largely undisputed evidence, the primary

question for the jury was not who began the altercation or

escalated it to deadly force, but rather whether the defendant

was legally entitled to use the force that he did in defense of

another. We recognize that there may be a question as to which

9
The defendant also suggests that Kevin Reis threw a chair
in concert with Gabriel Rodriguez's attack on Sunsin, but the
evidence in the record suggests that Reis did this in an effort
to escape after the defendant began shooting.
 13

act, the bottle throwing or the gun firing, escalated the fight

into a deadly confrontation,10 but that is a wholly distinct

question from which individual initiated each such act. Neither

the identity of the person who threw the bottle nor the identity

of the person who fired shots is in dispute, and the limited

sweep of Adjutant and Chambers does not authorize the

introduction of evidence to shed light on any other question.

See Gaynor, 73 Mass. App. Ct. at 75 (evidence of victim's prior

violent acts "immaterial" where contested issues had nothing to

do with identity of first aggressor). Accordingly, we cannot

say that the judge erred in excluding the proffered Adjutant

evidence.

The specific facts of this case render Adjutant and

Chambers inapplicable for another important reason: such

evidence is admissible only where the victim is involved in the

altercation that leads to his death. See Adjutant, 443 Mass. at

650; Chambers, 465 Mass. at 529. Here, there is simply no

credible evidence that the victim was involved in any of the

events that unfolded between the time when Rodriguez threw the

bottle and the defendant fired his weapon. No witness testified

that the victim was involved in the melee or that the victim

10
In addition to the bottle and the gun, a box cutter was
found in the area where the fight occurred and there was
testimony that Sunsin suffered an injury that may have come from
a knife, but there is no evidence that this weapon was seen or
used during the melee.
 14

physically assaulted or threatened to assault Sunsin or any

member of the defendant's group. Although the defendant

suggests that Diaz's testimony places the victim as one of the

men involved in the fray, a careful reading of his testimony

does not support this. Diaz never said that the victim was

among the men who jumped on Sunsin. Rather, the most Diaz's

testimony offers is that the victim was friends with the people

fighting and that the victim ran from the area in which the

fight was taking place when the defendant began firing a weapon.

Additionally, the surveillance footage reveals that the

victim was not with either group during the skirmish. Rather,

the victim moved toward the back of the stage and out of the

screen almost two and one-half minutes before Rodriguez threw

the bottle at Sunsin; he remained there until after the

defendant began shooting, and he reentered the screen while

attempting to flee gunfire. As there was no evidence that the

victim played any role in the brawl or posed any threat to the

defendant or the defendant's group, evidence of his prior

violent conduct is not probative of why the defendant shot him.

See Commonwealth v. Rodriquez, 461 Mass. 100, 111 (2011) (judge

correctly excluded evidence of victim's prior violence where no

evidence to support defendant's claim of self-defense).

The defendant also argues that the judge erred in denying

Adjutant evidence regarding Rodriguez and Reis, as they acted in
 15

concert with the victim's group in the melee. The defendant

cites to Pring-Wilson, 448 Mass. at 737, for the proposition

that where there are multiple aggressors, Adjutant permits the

admission of a third party's violent acts. The defendant's

argument misses the mark. Pring-Wilson, 448 Mass. at 737, makes

clear that Adjutant evidence is only admissible against a third

party on the determination that "in the light most favorable to

the defendant, the third party was acting in concert with or to

assist the victim" (emphasis added). Accordingly, although it

is true that "nothing in Adjutant precludes a judge from

admitting evidence of prior acts of violent conduct of a

victim's cohort," Pring-Wilson still involved a victim who was

very much involved in the altercation that led to his death.11

Id. Where a defendant claims self-defense against a victim, who

with the assistance of a third party cohort may have started the

fight that led to the victim's death, evidence of past violence

on the part of the victim's associate understandably may be

probative of assessing whether the defendant had grounds to use

deadly force against the victim. See id. at 737. Here,

however, there was no evidence that the victim was a source of

11
Moreover, in Commonwealth v. Pring-Wilson, 448 Mass. 718,
721-725 (2007), there was no video footage available and the
jury had heard only conflicting testimony as to whether the
victim or his friend had initiated the fight (or whether they
had done so jointly).
 16

provocation or played any role in the events leading to his

death, and therefore Rodriguez and Reis cannot be considered his

"cohorts" such that evidence of their past violent conduct would

assist the jury in evaluating why the defendant shot the victim.

Accordingly, we conclude that there was no error in the

exclusion of the proffered Adjutant evidence.12

2. Girl friend's testimony. At trial, defense counsel

asked the defendant's girl friend, Evelyn Chaboudt, whether the

defendant had explained to her why he fled Massachusetts after

the shooting. At sidebar, the defense counsel proffered that,

based on a previous statement, Chaboudt would testify that the

defendant was a member of TRG; "the other kids involved were the

Latin Kings" and "[t]hat is why [the defendant] had an issue

with them"; and that is why the defendant fled. Defense counsel

made no proffer for the basis of Chaboudt's knowledge of these

facts and subsequently acknowledged that evidence regarding the

reasons for the defendant's flight could only come from the

12
Additionally, "[o]ur decision in the Adjutant case is
specifically limited to situations where the defendant claims
self-defense." Commonwealth v. Benoit, 452 Mass. 212, 228
(2008). See Chambers, 465 Mass. at 527-528. Here, the
defendant has not argued self-defense, and we decline to extend
the Adjutant doctrine to cases involving defense of another in
this case.
 17

defendant.13 Accordingly, the judge held that these statements

were inadmissible hearsay. On appeal, the defendant argues that

the judge improperly excluded Chaboudt's proposed testimony, as

it was admissible to show his state of mind when fleeing.

Evidence of flight is generally admissible as some evidence

of consciousness of guilt, see Commonwealth v. Stuckich, 450

Mass. 449, 453 (2008), and "consciousness of guilt, together

with other evidence, may establish guilt." Commonwealth v.

Epsom, 399 Mass. 254, 259 (1987). When the Commonwealth

introduces consciousness of guilt evidence, a defendant is

entitled to rebut it. See Commonwealth v. Hicks, 375 Mass. 274,

277-278 (1978). In order to rebut the Commonwealth's contention

that the defendant fled due to consciousness of guilt, evidence

that the defendant believed the victim's group was affiliated

with a rival gang may have been admissible to show that he did

so out of a fear of retribution.

Here, defense counsel did not explicitly argue state of

mind at trial, but rather consistently stressed that the thrust

of this line of questioning was to show "the fact that

[Chaboudt] suffered some repercussions from [the defendant's]

being on the run" and "whether or not [Chaboudt] had trouble

13
However, defense counsel also stated at sidebar, "I don't
know whether all of [Chaboudt's] information came from [the
defendant] or not."
 18

because of [the defendant]." Read in its proper context,

defense counsel appears to have offered this evidence precisely

for the truth of what it asserts, namely, that the defendant and

the victim's group truly were affiliates of rival gangs.

Accordingly, on this record, we agree that the defendant's

statements to Chaboudt were inadmissible hearsay and, as

evidentiary rulings "are matters entrusted to the trial judge's

broad discretion and are not disturbed absent palpable error,"

Commonwealth v. Simpson, 434 Mass. 570, 578-579 (2001), we see

no reason to disturb the judge's ruling. See Commonwealth v.

Fitzpatrick, 463 Mass. 581, 602-603 (2012). To the extent that

the defendant now argues that these statements reflected his

state of mind, we find no substantial likelihood of a

miscarriage of justice in their exclusion. See Commonwealth v.

Fowler, 431 Mass. 30, 41 n.19 (2000) (issue not properly

preserved where defendant objected on different grounds from

those pursued on appeal).

Defense counsel also tried to elicit from Chaboudt that "a

few Latin Kings gave [her] trouble after the incident," but the

judge ruled that this statement was irrelevant. The judge was

well within his discretion to exclude this testimony, as it was

not probative of any material issue in this case. It does not

shed light on the defendant's state of mind at the time of the

shooting, see Fitzpatrick, 463 Mass. at 603, and absent
 19

admissible evidence that the defendant knew he had wronged

members of the Latin Kings prior to his flight, it does not

explain why he fled.

Even if it was an abuse of discretion to exclude any of the

aforementioned statements, there is no indication that exclusion

prejudiced the defendant. "[D]eclarations out of court may be

admissible to prove the state of mind or intent of a person when

it is a material issue" (emphasis added). Commonwealth v. Bins,

465 Mass. 348, 365 (2013), quoting Commonwealth v. Magraw, 426

Mass. 589, 594 (1998). Defense counsel sought all of the

proffered testimony in response to an inquiry as to whether the

defendant relayed his explanation for fleeing. Although the

Commonwealth mentioned the defendant's flight at trial,

consciousness of guilt was not a material issue in this case, as

it was undisputed that the defendant shot the victim. As such,

the exclusion of this evidence was not prejudicial. See

Commonwealth v. Garrey, 436 Mass. 422, 440-441 (2002)

(improperly admitted evidence not prejudicial where only

impacted undisputed point).

3. Posttrial discovery motion. The defendant also

contends that the judge erred in denying his postconviction

motion for discovery of gang-related evidence. Denial of a

defendant's motion for posttrial discovery under Mass. R. Crim.

P. 30 (c), as appearing in 435 Mass. 1501 (2001), is reviewed
 20

for abuse of discretion. See generally Commonwealth v.

Martinez, 437 Mass. 84, 97-98 (2002).

The Commonwealth has a duty to disclose favorable evidence

that it has in its possession, which could materially aid the

defendant. See Commonwealth v. Tucceri, 412 Mass. 401, 404-405

(1992); Brady v. Maryland, 373 U.S. 83, 87 (1963). The

Commonwealth's failure to disclose such exculpatory evidence may

warrant a new trial, Commonwealth v. Murray, 461 Mass. 10, 19

(2011), and where specifically requested favorable evidence is

not disclosed the defendant "need only demonstrate that a

substantial basis exists for claiming prejudice." Commonwealth

v. Daniels, 445 Mass. 392, 404-405 (2005), quoting Tucceri, 412

Mass. at 412.

In order to prevail on a posttrial discovery motion, a

defendant must demonstrate that it is reasonably likely that

such discovery will lead to evidence possibly warranting a new

trial. See Daniels, 445 Mass. at 407. Additionally, the

defendant must make a prima facie showing that the evidence

sought would have materially benefited the defense and would

have factored into the jury's deliberations. Id., quoting

Tucceri, 412 Mass. at 405, 414.

The defendant claims that evidence that the victim and his

associates were gang members (requested both before and after

trial) would have bolstered his defense of another claim and
 21

factored into the jury's deliberations. In support, he relies

on Murray, 461 Mass. at 10-11, in which the grant of a motion

for a new trial and postconviction discovery based on gang-

related evidence was affirmed. There, we noted that gang-

related evidence may be used to "support [a defendant's]

contention that he was fearful for his life" and to impeach a

witness for bias. Id. at 19-20.

However, the facts of Murray are markedly different from

the facts of this case. There, more than two years after trial,

twenty members of the Kendall Street Thugs (KST) were indicted

on State and Federal drug charges, and a police lieutenant

submitted an affidavit in Federal court characterizing the group

as a violent drug trafficking gang. Id. at 17. The affidavit

specifically mentioned that the victim was a member of the gang,

id., despite the fact that several members of KST had testified

at trial that KST was not a gang, but rather just a group of

friends who had grown up together. Id. at 15-18.

The defendant claims that the Commonwealth withheld similar

gang-related evidence during his trial. Although the

Commonwealth provided the defendant with all of the evidence

that was requested by the defendant's pretrial discovery

motion,14 the defendant nevertheless contends that a statement

14
The defendant's pretrial motion for discovery requested
reports from the Chelsea, Revere, and State police departments
 22

made by the prosecutor at the new trial hearing15 and a summary

of the shooting provided to the Department of Correction16

demonstrated that other gang-related evidence existed and that

the prosecution knew of, and failed to disclose, this evidence.

The defendant has failed to make the necessary showing that

he was entitled to postconviction discovery, as he has not

demonstrated sufficiently that other gang-related evidence

actually existed. First, at trial, Sunsin explicitly testified

that other than Rodriguez, no rival gang members were present on

pertaining to any gang-related activities of Rodriguez, Reis,
and the victim. In response, the Commonwealth provided the
defendant with several Chelsea police department reports
concerning these individuals. Defense counsel acknowledged that
the Commonwealth had provided all of the information that was
requested, to the extent that it was able to do so. Moreover,
at defense counsel's request, the Commonwealth prepared an
indexed list of every document that it had in its possession to
ensure that defense counsel received each item.
15
When asked to summarize the factual background of the
case at the hearing on the defendant's motion for a new trial,
the prosecutor stated:

"Although it didn't come out at the trial itself, there was
some underlying gang motivation where allegedly the
defendant . . . and his friends were members of a gang
known as TRG, which is an acronym for Tiny Rascals Gang. I
believe Mr. Gabriel Rodriguez and his friends were more
affiliated with the Bloods. So there was some bad blood,
so to speak, between the two groups. There were some prior
instances of violence between Mr. Rodriguez and Mr.
Suns[i]n."
16
The report stated, "A verbal altercation began between
friends of [the defendant] and a group of men affiliated with a
rival gang. This rival group included the deceased victim
. . . ."
 23

the night of the shooting. Moreover, the prosecutor's statement

at the new trial hearing was made during a lengthy recitation of

the case's factual background and corroborates what was revealed

at trial: the defendant and his friends were gang affiliated

and Rodriguez was affiliated with a rival gang. His statement

that Rodriguez's friends were "more affiliated with the Bloods"

is not evidence that the victim was in fact in a rival gang, but

only suggests that the victim was "more affiliated" with

Rodriguez than he was with the defendant's gang. Although the

prosecutor definitively stated that the defendant and his

friends were "members" of a gang, he made no such statement

about the victim. Finally, the Department of Correction report

cannot be attributed to the prosecutor.17

The defendant's argument that the Commonwealth was required

to turn over gang-related evidence hypothetically possessed by

other law enforcement agencies is equally unavailing. Although

the Commonwealth has a duty to disclose exculpatory evidence,

that duty "only applies to information in the possession of the

prosecutor and information in the possession of persons

sufficiently subject to the prosecutor's control" (quotation and

citation omitted). Commonwealth v. Beal, 429 Mass. 530, 531

(1999). If such gang-related evidence existed, which the

17
This report also is inconsistent with several of the
Commonwealth's filed pleadings.
 24

defendant has failed to demonstrate, the Commonwealth was not

obligated to search other law enforcement agencies for it.18 See

Commonwealth v. Thomas, 451 Mass. 451, 454-455 (2008)

(information possessed by State Police colonel and registry of

motor vehicles not within prosecutor's control; therefore,

prosecutor not required to turn over). See also Commonwealth v.

Daye, 411 Mass. 719, 733-734 (1992) (prosecution not required to

produce potentially exculpatory police reports because reports

not within prosecution's control).

Based on the record before us, the defendant has not

demonstrated sufficiently that postconviction discovery would

have led to additional evidence warranting a new trial. Without

a showing that other gang-related evidence actually existed, and

that the Commonwealth withheld such evidence, we cannot say that

it was an abuse of discretion for the judge to deny the

defendant's motion. See Daniels, 445 Mass. at 407.

Moreover, even if such evidence did exist, the defendant

has failed to show that it would have materially aided his

defense or factored into the jury's deliberations. The

defendant has not demonstrated that he had actual knowledge, on

18
In response to the defendant's pretrial discovery request
for gang-related evidence, the Commonwealth informed the
defendant that he would have to file a motion under Mass. R.
Crim. P. 17, 378 Mass. 885 (1979), to receive information from
other law enforcement agencies. The defendant agreed with this
assessment.
 25

the night of January 23, 2008, that anyone in the victim's group

(besides Rodriguez) was affiliated with a gang. Without such a

showing, the defendant would be unable to introduce gang-related

evidence to bolster his contention that he reasonably feared for

Sunsin's life. See Murray, 461 Mass. at 19-20 (defendant must

possess prior knowledge of victim's violent tendencies when

attempting to admit such evidence to prove defendant's state of

mind).

Similarly, despite what the defendant claims, it is

unlikely that any evidence of gang affiliation would have

provided substantial impeachment value (e.g., to demonstrate

witness bias). See Murray, 461 Mass. at 20. On the record

before us, there is no evidence that gang affiliation even

existed, much less served as motivation for witnesses associated

with the victim to testify falsely. See id. This is not a case

in which members of the victim's group repeatedly denied being

affiliated with a gang. Contrast id. at 20 & n.9 (evidence of

group's gang affiliation could be used to impeach witnesses who

testified that group not gang and that victim not member).

Rather, none of the testifying witnesses associated with the

victim was even asked, much less denied, whether they or the

victim were affiliated with a gang. Thus, the gang-related

evidence would have carried little, if any, impeachment value
 26

and it is unlikely that it would have factored into the jury's

deliberations.

4. Provocation. At trial, the judge instructed the jury

on manslaughter based on excessive force in defense of another,

but determined that the defendant was not entitled to a

manslaughter instruction on theories of reasonable provocation

and sudden combat.19 The defendant objected to the judge's

ruling and we therefore review for prejudicial error. See

Commonwealth v. Kelly, 470 Mass. 682, 687-688 (2015).

"Voluntary manslaughter is an unlawful killing 'arising not

from malice, but from . . . sudden [heat of] passion induced by

reasonable provocation, sudden combat, or [the use of] excessive

force in self-defense" (quotation and citation omitted).

Commonwealth v. Gonzalez, 465 Mass. 672, 686 (2013). Reasonable

provocation is "provocation that 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" (quotation and citation

19
The Commonwealth's brief incorrectly states that the
defendant does not claim that the judge erred in refusing to
instruct the jury on sudden combat. The defendant raised this
theory in his opening brief, noting that he was incorporating it
within his discussion of provocation. In any event, we address
these two theories under the singular caption of "provocation,"
as much of our case law treats them indistinguishably and
"[s]udden combat is among those circumstances constituting
reasonable provocation." Commonwealth v. Walczak, 463 Mass.
808, 820 (2012) (Lenk, J., concurring). See Commonwealth v.
Morales, 70 Mass. App. Ct. 526, 530-532 (2007).
 27

omitted). Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006).

"A jury instruction on reasonable provocation is warranted if

there is evidence of provocation deemed adequate in law to cause

the accused to lose his self-control in the heat of passion, and

if the killing followed the provocation before sufficient time

had elapsed for the accused's temper to cool" (quotations and

citations omitted). Id. Additionally, "[a] jury must be able

to infer that a reasonable person would have become sufficiently

provoked, and that the defendant was in fact provoked."

Commonwealth v. Pierce, 419 Mass. 28, 31 (1994). "Insults and

quarreling alone cannot provide a reasonable provocation"

(quotation and citation omitted). Commonwealth v. Callahan, 401

Mass. 627, 632 (1988). Although "[a]ll reasonable inferences

are drawn in favor of the defendant in deciding whether a

manslaughter instruction was supported by the evidence,"

Commonwealth v. Nichypor, 419 Mass. 209, 216 (1994), it is error

to give a manslaughter instruction without some supporting

evidence of that crime. Commonwealth v. Walden, 380 Mass. 724,

727 (1980).

Critically, "[i]t is well established that 'provocation

must come from the victim'" (emphasis added). Acevedo, 446

Mass. at 444, quoting Commonwealth v. Ruiz, 442 Mass. 826, 838-

839 (2004). See generally Commonwealth v. Nelson, 468 Mass. 1,

14 (2014); Commonwealth v. LeClair, 445 Mass. 734, 740 (2006)
 28

(reaffirming "well-established rule that evidence of provocation

by a third party, rather than the victim of a homicide, is

insufficient to warrant a voluntary manslaughter instruction").

We see no reason to depart from this rule. The evidence is

insufficient to conclude that the victim was one of the

aggressors in the fray or did anything to reasonably provoke the

actions that led to his death. See Commonwealth v. Benson, 453

Mass. 90, 95 (2009) (no provocation instruction where

insufficient evidence for jury reasonably to infer that "an

action of the victim trigger[ed] a sudden loss of self-control

in the defendant"). Neither the surveillance footage nor

witness testimony demonstrates that the victim assaulted Sunsin.

Although the defendant continues to rely heavily on Diaz's

testimony, where Diaz never identified the victim as being

involved in the actual physical altercation, such an inference

would be nothing more than speculation. See Commonwealth v.

Masello, 428 Mass. 446, 450 (1998) (no instruction warranted

where only "scant evidence that the victim had attacked the

defendant or struck any blows"); Gonzalez, 465 Mass. at 686 (no

provocation instruction where defendant physically struggled

with family and friends of victim, but contention that victim

took part in altercation was "mere speculation").

The defendant alternatively contends in a footnote that

even if the victim was not involved in the fray, the jury could
 29

have found him guilty of manslaughter if he accidentally shot

the victim while attempting to shoot Rodriguez or another melee

participant. He grounds this argument in a footnote in LeClair,

445 Mass. at 743 n.3, citing W.R. LaFave & A.W. Scott, Jr.,

Criminal Law § 76, at 582 (1972), in which we stated that

"[c]ommentators also observe that, in circumstances where one

(A) who is reasonably and actually provoked by another person

(B) into a passion to kill B, shoots at B but accidentally hits

and kills an innocent bystander, A's crime is voluntary

manslaughter." Although we agree with this general proposition,

it has no applicability to the present case. Here, the

defendant inflicted two fatal shots on the victim not

accidentally during the melee, but intentionally after it ended,

while the victim lay on the floor, wounded and unarmed. The

judge did not abuse his discretion in refusing to give the

requested instructions.

5. Ineffective assistance of counsel. The defendant also

contends that defense counsel rendered ineffective assistance by

misapprehending the strength of the Commonwealth's case.

Specifically, he argues that defense counsel mistakenly advised

him against accepting a plea to murder in the second degree as a

direct result of defense counsel's insufficient review of

certain items provided in discovery.
 30

To prevail on an ineffective assistance of counsel claim a

defendant must demonstrate "serious incompetency of counsel

(behavior falling measurably below that which might be expected

from an ordinary fallible lawyer) and prejudice that, in this

context, means a 'reasonable probability' that 'but for

counsel's unprofessional errors, the result of the proceeding

would have been different.'" Commonwealth v. Mahar, 442 Mass.

11, 15 (2004), quoting Strickland v. Washington, 466 U.S. 668,

694 (1984). To demonstrate that ineffective assistance of

counsel caused prejudice in the context of a plea deal, a

defendant "must show the outcome of the plea process would have

been different with competent advice." Lafler v. Cooper, 132

S. Ct. 1376, 1384 (2012). Moreover, G. L. c. 278, § 33E,

provides a "standard . . . that is more favorable to a defendant

than is the constitutional standard for determining

ineffectiveness of counsel" (quotation and citation omitted).

Commonwealth v. Britto, 433 Mass. 596, 601-602 (2001).

The defendant first claims that defense counsel

underestimated the Commonwealth's case by failing to review the

club's surveillance footage before closing argument. At the

hearing on the motion for a new trial, defense counsel answered

affirmatively when asked if he "essentially" saw the

surveillance footage for the "first time" during closing

argument. However, defense counsel also explained, "I had not
 31

seen some of the things that [the prosecutor] pointed out while

doing his closing argument. He used the video and I [had] seen

the video twice, but I did not see what he was pointing out

prior to his doing so."20

Additionally, at trial, when the still images of the

surveillance footage were entered as exhibits, defense counsel

explicitly stated several times that he had seen all of them.

Specifically, he said, "Yes, I did look at [the still

photographs] this morning and I've seen them before . . . .

Like I say, I've seen them all before." Further, he stated,

"I've seen all of these photos and I've seen the videos . . . ."

Therefore, it appears that defense counsel did not mean to

suggest that he literally had not viewed the footage prior to

closing argument but, rather, that only then did he see how the

Commonwealth intended to use it in support of its position.

The defendant next claims that defense counsel failed to

review Diaz's video statement taken on the night of the shooting

meaningfully. At trial, defense counsel stated that he did not

view this statement until the night before Diaz's cross-

examination.21 Although defense counsel certainly should have

20
Even the judge noted that there was something "powerfully
persuasive about the manner in which [the prosecutor]
interspersed his oral argument with scenes from the video."
21
The record suggests that defense counsel most likely
received the video on a disk from the Commonwealth, but either
 32

reviewed Diaz's statement in a more timely fashion, any delay

was mitigated by the fact that he did view it and was therefore

able to adequately prepare and conduct an effective cross-

examination. See Commonwealth v. Wadlington, 467 Mass. 192, 201

(2014) (failure to review witness's video statement until eve of

trial not ineffective assistance as counsel effectively used

prior inconsistency contained in video statement during cross-

examination). Indeed, before Diaz's cross-examination began

defense counsel stated, "As a matter of fact [Diaz] sa[id]

already what I thought and what I had hoped that he would say.

. . ." Moreover, Diaz's video statement was largely consistent

with his grand jury testimony, which defense counsel had

reviewed.22 Therefore, it is unlikely that viewing the video any

earlier would have altered defense counsel's strategy.

Ultimately, the defendant contends that had defense counsel

properly reviewed all of the evidence, he would have realized a

murder in the first degree conviction was likely and therefore

would have advised the defendant to accept the plea deal. In

misplaced it or was unable to view it. Nevertheless, the judge
acknowledged this issue and ensured that defense counsel would
have an opportunity to view the video and adequately prepare for
cross-examination.
22
The defendant does not assert that Diaz's grand jury
testimony differed significantly from his video statement, but
stresses that the video had the "impact" of showing Diaz on the
night of the murder.
 33

ruling on the defendant's motion for a new trial, the judge

concluded that defense counsel's "advice to reject the

Commonwealth's offer of a second-degree murder plea bargain was

not unreasonable," and we agree with this assessment.23 Diaz's

testimony was essential to convict the defendant of murder in

the first degree, as he was the only person who testified to

seeing the defendant shoot the victim twice while the victim lay

on the floor. At the time defense counsel advised the defendant

not to accept the Commonwealth's plea deal, it was uncertain

whether Diaz (who had fled to another country) would testify,

and, if so, whether he would cooperate24 and whether he would be

credible. Indeed, the day before the trial began the

Commonwealth moved for a continuance because the extradition

process, which was not then complete, could have taken up to two

23
As the judge who heard the motion for a new trial was
also the trial judge, his findings "are entitled to substantial
deference," as he observed counsel's effectiveness first-hand.
See Commonwealth v. Britto, 433 Mass. 596, 608 (2001). See
Commonwealth v. DeVincent, 421 Mass. 64, 69 (1995).
24
Diaz fled to Spain because of an unrelated drug
trafficking charge, and it took what the Commonwealth described
as a "Herculean effort" (including the involvement of the State
Police, the United States Justice Department, and the United
States Marshals) to get him back to Massachusetts to testify.
Once Diaz was back, it was still uncertain whether he would
cooperate. The Commonwealth stated at the new trial hearing:

"[Diaz] arrived and even on his arrival, I wasn't sure what
we were going to get. . . . I didn't expect him to be a
cooperative witness. So there was always the very strong
possibility that we were not going to get Danny Diaz in."
 34

additional months. Accordingly, on the record before us,

defense counsel's inability to recognize fully the strength of

the Commonwealth's case until after Diaz testified was

understandable25 and his advice to reject the murder in the

second degree plea, when it was available,26 was not ineffective.

See Mahar, 442 Mass. at 17, quoting In re Alvernaz, 2 Cal. 4th

924, 937 (1992) ("defense attorney's simple misjudgment as to

the strength of the prosecution's case . . . will not, without

more, give rise to a claim of ineffective assistance of

counsel").

6. Closing argument. Last, the defendant argues that the

Commonwealth's closing argument improperly appealed to the

sympathies of the jury. Specifically, he contends that the

25
The defendant also argues that defense counsel should
have advised him to accept the plea deal once it was clear (on
the seventh day of the trial) that Diaz was going to testify.
However, as previously mentioned, at that point it was still far
from obvious that Diaz would be a cooperative witness. In fact,
when ruling on the defendant's motion for a new trial, the judge
stated, "Diaz was . . . a problematic witness for the
government. It was highly uncertain that he would ever appear;
and that, if he did, he would be willing to testify."

Moreover, at the time Diaz was to testify, he faced a
fifteen year mandatory minimum term of imprisonment on charges
of drug trafficking. Defense counsel aggressively cross-
examined Diaz on the agreement he had with the district
attorney's office with respect to reducing those charges and any
prospective sentence.
26
After Diaz testified, the Commonwealth no longer offered
the defendant an option to plead guilty to murder in the second
degree.
 35

Commonwealth used hyperbolic language to urge the jury to

convict, excessively referred to the shooting as an "execution,"

improperly invited the jury into the victim's position in an

attempt to arouse sympathy, and included unnecessary references

to the scene's gore.27 As the defendant did not object to these

statements at trial, we review for a substantial likelihood of a

miscarriage of justice. See Commonwealth v. Scott, 470 Mass.

320, 333-334 (2014). Additionally, "[w]e review the

prosecutor's remarks in the context of his entire closing

argument, the judge's instructions to the jury, and the evidence

produced at trial." Commonwealth v. Lyons, 426 Mass. 466, 471

(1998).

The Commonwealth tried this case on a theory of extreme

atrocity or cruelty. Therefore, in contrast to what the

defendant submits, the degree of the defendant's guilt was not

the only issue at trial, and the Commonwealth was entitled to

focus the jury "both on the defendant's actions, in terms of the

manner and means of inflicting death, and on the resulting

effect on the victim" (citation omitted). Commonwealth v.

27
For example, the Commonwealth stated in closing: "That
bump on the ground is the body of twenty-eight-year-old Jeffrey
Santiago lying face down on beer-stained, dirty barroom floor,
seconds or minutes left to live. Dying in pain and dying in
agony. And there is his cowardly killer, just steps away, happy
in the deed he had just performed, dispensing of [the victim's]
life with the ease and convenience of dispensing of a piece of
garbage on the floor."
 36

Barros, 425 Mass. 572, 581 (1997). The Commonwealth was

permitted to call the jury's attention to the "defendant's

awareness of, but indifference to, or pleasure in, the victim's

suffering," id., as "[w]here a charge of murder in the first

degree is based on the theory of extreme atrocity or cruelty

. . . the jurors serve as the conscience of the community in

determining whether the killing merits that description."

Commonwealth v. Torres, 437 Mass. 460, 465 (2002). In such

circumstances, the Commonwealth may "illustrate the magnitude of

the crime" by discussing the details of the victim's death, as

well as the elements of gore and pain that are not inherent in

every death. See Commonwealth v. Siny Van Tran, 460 Mass. 535,

554 (2011). See also Commonwealth v. Wilson, 427 Mass. 336, 351

(1998) (prosecutor's references to gruesomeness of crimes not

improper because relevant to issue whether defendant's actions

constituted extreme atrocity or cruelty). Moreover,

"enthusiastic rhetoric, strong advocacy, and excusable hyperbole

are not grounds for reversal" (quotation and citation omitted).

Wilson, 427 Mass. at 350.

Still, although it was permissible for the Commonwealth to

call the jury's attention to the circumstances of the victim's

death, namely that he lay bleeding on a dirty barroom floor

while the man who fatally shot him ran away, laughing, we agree

that some of the Commonwealth's closing remarks overstepped the
 37

bounds of appropriate rhetoric. For example, the Commonwealth

offered the following description of the crime scene:

"[T]here was another scent at that crime scene. The smell
of blood. The smell of three people's blood, all at his
hand. A blood pool, a puddle of blood . . . seeping out of
[the victim's] body as his life seeped out of his body
. . . [the victim's] life literally drained from his body."

Additionally, the Commonwealth implored the jury:

"Think about landing face down on that dirty, beer-stained
barroom floor. You are completely helpless . . . you're
laying there bleeding, in pain, in terror. . . . Think
about the last moments of [the victim's] life, whether he
lived for seconds, as the doctor told you, or lived for
minutes, it was a horrible, brutal, vicious death. . . .
The pain, the suffering."

These remarks, attempting to arouse sympathy and invite the jury

into the victim's position, were improper. See Commonwealth v.

Olmande, 84 Mass. App. Ct. 231, 234 (2013).

The defendant also properly takes issue with the

Commonwealth's reference to the shooting as an execution no

fewer than eleven times. To be sure, the Commonwealth could,

given the evidence, permissibly label the victim's shooting an

execution. See Commonwealth v. Francis, 450 Mass. 132, 141

(2007) (phrase "execution-style" described shooting

appropriately given that victim was shot several times in back).

However, rather than making just a "few passing references," see

Wilson, 427 Mass. at 351, the Commonwealth appears to have

dwelled gratuitously on the circumstances of the murder in order

to appeal to the jury's sympathy. See Commonwealth v. Santiago,
 38

425 Mass. 491, 494-495 (1997), S.C., 427 Mass. 298, and S.C.,

428 Mass. 39, cert. denied, 525 U.S. 1003 (1998) (prosecutor

acted improperly when, in closing, stated seven times that

victim of fatal shooting was pregnant and four times that her

birthday was day after shooting).

However, given that the Commonwealth charged the defendant

with extreme atrocity and cruelty, and in the context of the

entire summation, the evidence at trial, and the jury

instructions, see Commonwealth v. Viriyahiranpaiboon, 412 Mass.

224, 231 (1992), these errors did not create a substantial

likelihood of a miscarriage of justice. See Wilson, 427 Mass.

at 351. First, the prosecutor explicitly stated that the reason

for dwelling on the manner of death was to explain that the

murder was conducted with extreme atrocity or cruelty.28 In

addition, the lack of objection by defense counsel, although not

dispositive, is indicative that the tone and manner of the

remarks were not unfairly prejudicial. Sanchez, 405 Mass. at

375. Moreover, "[a]ny adverse impact . . . resulting from the

28
The Commonwealth even explained to the jury in closing,
"I don't tell you all this to shock you. I don't tell you this
to upset you. I tell you this because it's important. It's
important to know how [the victim] died. It's important to know
how much callousness and indifference was executed by the man
who killed him on that barroom floor. It's important to know
that [the victim] suffered, because as you'll soon know from
[the judge's] instructions, his suffering, the way he was
killed, it screams a concept called extreme atrocity. It
screams cruelty."
 39

summation would have been cured by the judge's charge to the

jury." Commonwealth v. Costa, 414 Mass. 618, 629 (1993).

Although none of the errors was addressed specifically, the

judge instructed the jury that closing arguments are not

evidence and that the jury were not to be swayed by emotion,

sentiment, sympathy, or prejudice.29 "The jury have the ability

to discount hyperbole and other improper statements, . . . and

trial judge's instructions are generally adequate [to] cure

errors in the arguments" (citation omitted). Santiago, 425

Mass. at 495.

7. Review pursuant to G. L. c. 278, § 33E. We have

reviewed the entire record of the defendant's trial pursuant to

G. L. c. 278, § 33E, and find no reason to exercise our

authority to reduce the jury's verdict of murder to a lesser

degree of guilt or order a new trial.

Judgments affirmed.

29
Specifically, the judge explained: (1) "[y]ou must be
completely impartial. You are not to be swayed by any emotion,
sentiment, sympathy or prejudice"; (2) "[f]inal arguments of
counsel . . . [a]re not evidence"; and (3) personal views of the
attorneys, "as such views may have come through when they
presented their final arguments" are not relevant.