Commonwealth v. Alleyne

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revision and are superseded by the advance sheets and bound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-11614

COMMONWEALTH vs. KYLE ALLEYNE.

Middlesex. March 11, 2016. - July 15, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.

Homicide. Jury and Jurors. Evidence, Photograph, Inflammatory
evidence, Relevancy and materiality. Practice, Criminal,
Capital case, Jury and jurors, Interrogation of jurors,
Instructions to jury. Search and Seizure, Consent.
Intoxication.

Indictments found and returned in the Superior Court
Department on October 21, 2010.

The cases were tried before Thomas P. Billings, J.

Chauncey B. Wood for the defendant.
Casey E. Silvia, Assistant District Attorney, for the
Commonwealth.
William Trach & Laura Carey, for Massachusetts Association
of Criminal Defense Lawyers, amicus curiae, submitted a brief.
Paul R. Rudof, Committee for Public Counsel Services, &
David Lewis, for Committee for Public Counsel Services &
another, amici curiae, submitted a brief.

HINES, J. The defendant, Kyle Alleyne, was convicted by a

jury of murder in the first degree on the theory of extreme
 2

atrocity or cruelty1 for the stabbing death of his wife, Heather

Alleyne, and of assault and battery of Josh Elinoff, the father

of the victim's newborn baby.2 On appeal, the defendant

challenges: (1) the judge's failure to conduct a voir dire of

an inattentive juror; (2) evidentiary rulings allowing the

admission of numerous autopsy photographs, statements of the

defendant, and the victim's purse; (3) the judge's modification

of jury instructions pursuant to Commonwealth v. DiGiambattista,

442 Mass. 423, 447-448 (2004); and (4) the judge's failure to

alter the model instructions for extreme atrocity or cruelty.

We affirm the defendant's convictions, and we discern no basis

to exercise our authority pursuant to G. L. c. 278, § 33E.3

Background. We summarize the evidence as the jury could

have found it, reserving certain facts for later discussion.

The victim met the defendant, who was six years older than she

was, when she was thirteen or fourteen years of age. Insofar as

relevant here, the two had a dating relationship. After the

victim graduated from high school she and the defendant got

1
The defendant was also tried on the theory of deliberate
premeditation, but the jury found him not guilty.
2
The judge granted the defendant's motion for a required
finding of not guilty on the charge of reckless endangerment of
a child.
3
We acknowledge amicus briefs submitted by the
Massachusetts Association of Criminal Defense Lawyers and the
Committee for Public Counsel Services.
 3

married in March, 2009. She gave birth to their daughter in

June, 2009.

The victim and her daughter moved back to her father's

house for a period between October and December, 2009. At that

time, the victim's brother and one of his friends, Elinoff, also

lived in the father's house. The victim told Elinoff that her

relationship with the defendant was "over and she was getting a

divorce," and she and Elinoff engaged in a sexual relationship

that ended when the victim moved back in with the defendant.

Within one month after returning to live with the

defendant, the victim learned that she was pregnant. She gave

birth to a baby girl on July 23, 2010. She and the defendant

did not name the baby.

The defendant suspected that he might not be the father of

the baby and on July 26, he and the victim submitted to a

deoxyribonucleic acid (DNA) test to determine paternity. The

results, establishing that the defendant was not the father,

became available on August 1. On August 2, the victim called

Elinoff to inform him that she had given birth to a baby and

that he was the father. Elinoff, who had not spoken to the

victim since she left her father's house to resume living with

the defendant, responded that he would help in any way that he

could. After this conversation, however, the victim sent him

text messages stating that she and the defendant had decided to
 4

give the baby up for adoption. Elinoff responded that he would

take the baby instead, and he arranged to meet the victim the

following day.

The victim met Elinoff outside her apartment complex during

the evening hours of August 3, bringing with her the baby and

baby supplies. The two sat in Elinoff's vehicle for

approximately two hours. They agreed on a name for the baby.

Elinoff asked for a letter authorizing custody of the baby until

his name appeared on the birth certificate. The victim went

back to her apartment and came out with a document. At one

point, the defendant followed the victim out of the apartment

and "tried to attack" Elinoff by "yelling," and chasing and

hitting his vehicle. Elinoff telephoned 911 as he drove away

with the baby but hung up when the operator answered.

In the late evening hours of August 3 and early morning

hours of August 4, Elinoff corresponded with the victim and the

defendant verbally and through text messages from the

defendant's cellular telephone.4 The victim explained that her

telephone had been "smashed." On August 4, Elinoff learned that

he needed to have a "denial of paternity" form signed by the

4
Josh Elinoff had communicated with the victim about a time
to meet the following day. During one of the calls, the victim
"handed the [tele]phone" to the defendant. The defendant told
Elinoff that he was angry at him for "[r]uining his family and
that he hated [him]." The defendant "eventually calmed down."
Elinoff and the victim agreed to meet on August 4 at 11:30 A.M.
but the victim later canceled.
 5

victim and the defendant in order to be able to file a birth

certificate. He spoke to the victim at approximately 5:30 P.M.

and scheduled a meeting to take place the next day to obtain

notarized signatures from the victim and defendant on the

paternity form.

The victim was last heard from on August 4, at

approximately 10 P.M., when she telephoned her father's girl

friend to try to arrange a meeting the following day to visit

her father, who was hospitalized with a serious illness.

On August 5, Elinoff drove to the victim's apartment

complex at the arranged time. He did not know which apartment

unit was the victim's so he called the defendant's cellular

telephone and waited outside for about thirty minutes before

leaving. That evening and the next day, the defendant

telephoned two relatives to whom he had not spoken for at least

one year. One was an aunt who lived in Florida. He told her

that he was going to take a bus with his daughter to visit her.

At around noon on August 6, Elinoff went back to the

apartment complex, where a group of children pointed him to the

correct apartment. He "hammered on the [apartment] door" for

five to ten minutes before the defendant answered and came out

into the hallway, shutting the door behind him. The defendant

stated that he had not heard from the victim for a few days, but

he would sign his portion of the paternity form if Elinoff came
 6

back in a few hours. The victim's mother also came by the

apartment that afternoon, looking for the victim. The defendant

opened the door "a crack," just "enough for his face to get

through to talk to [her]," and said that the victim "took off,"

probably to see Elinoff or her grandmother.

Elinoff returned to the apartment at approximately 3 P.M.

The defendant met him outside, and explained that he did not

have a car seat for his daughter so he would leave her in the

apartment. The two drove to a nearby bank to secure the

services of a notary public for the paternity form. The

defendant accused Elinoff of "ruining his family" and, in the

bank's parking lot, read a letter written by the victim to the

baby that contained derogatory statements about Elinoff. The

defendant punched Elinoff in the face, knocking out two of his

teeth, and then he ran away. Elinoff telephoned 911 at

3:43 P.M. When the police arrived, Elinoff reported what had

happened and told them that the defendant had left his young

daughter alone at the apartment.5

After leaving the bank parking lot, the defendant went to a

local restaurant. A taxicab picked him up there at

approximately 4 P.M. and drove him to three stores before

5
In response to Elinoff's report, a Framingham police
officer went to the defendant's apartment and knocked on the
door. The officer left after three to five minutes when he was
unable to gain entry.
 7

dropping him off at his apartment. During those stops, the

defendant purchased bleach, trash bags, gloves, disinfectant

wipes, packing tape, a clothesline, a mattress pad, a sleeping

bag, a lighter, fuel, and a car seat. He made a reservation

with the taxicab for that evening, and at approximately

7:30 P.M., the taxicab driver drove the defendant and his

daughter to an area where there were two adjacent local hotels.

At approximately 8:40 P.M. that evening, two Framingham

police officers went to a local hotel for a well-being check on

a child after being alerted by the hotel clerk that an

intoxicated man checked into the hotel with a young child. The

officers went to the defendant's hotel room and spoke to the

defendant, who was clumsy and had an alcohol odor but was able

to converse with and understand the officers.

While conducting a check on the child, the officers found a

woman's purse inside of a grocery bag containing a half-empty

bottle of liquor. The purse contained two identification cards

with the victim's photograph and name. The defendant explained

that the purse belonged to his daughter's mother, that she had

recently given birth to another child that was not his, and that

she no longer wanted anything to do with this daughter. The

defendant stated that the daughter's mother was not home because

she was "out whoring around" and stated that he and the daughter

had been homeless for approximately four weeks. The officers
 8

called the Department of Child and Family Services, and the

defendant's mother and grandmother were called to the hotel to

assist with the child. The defendant's mother took the

defendant's child home with her, and the defendant left with his

grandmother.

At the defendant's request, his grandmother dropped him off

at a train station. On August 8, he telephoned his aunt from

Atlanta, Georgia, and requested money. She asked him to contact

her later that evening, but she did not hear from him again.

On August 9, at approximately 4:30 P.M., the victim's

mother went to the victim's apartment because of her concern

that no one had heard from the victim since August 4. When

there was no answer at the door, she called the police and

requested a well-being check. The police gained entry to the

apartment, where there was an odor consistent with a decomposing

body. In the corner of the second bedroom, under a blanket, was

a sleeping bag with a trash bag closing off one end and sealed

by tape. Insects were flying above.

State police transported the body to the medical examiner's

office in its wrapped condition, where it was positively

identified as the victim. The sleeping bag and trash bags

covering the victim matched the items purchased by the defendant

on August 6. A State medical examiner performed an autopsy on

August 11, determining that there were thirteen stab wounds to
 9

the victim's body, including cuts to the carotid artery and

jugular vein. The cause of death was loss of blood and oxygen.

Also on August 11, Framingham police entered a warrant for

the defendant's arrest into a national database maintained by

the Federal Bureau of Investigation. On August 14, police

officers in Laredo, Texas, informed State police that the

defendant had been detained after he had walked across the

border from Mexico. Later that day, a State trooper and a

Framingham detective flew to Texas and interviewed the

defendant. The defendant waived his Miranda rights as well as

his rights pursuant to Commonwealth v. Rosario, 422 Mass. 48, 56

(1996).6 He spoke to the officers during a recorded

interrogation, telling them that he was unaware of the victim's

death. On August 15, the defendant waived extradition on the

murder charge, and on August 16, the officers took custody of

the defendant. While awaiting the return trip to Massachusetts,

the officers read and obtained a waiver from the defendant of

his Miranda rights. The defendant stated, "I've never been so

happy to be arrested in my whole life." The State trooper asked

6
The Rosario rule provides that "[a]n otherwise admissible
statement is not to be excluded on the ground of unreasonable
delay in arraignment, if the statement is made within six hours
of the arrest (day or night), or if (at any time) the defendant
made an informed and voluntary written or recorded waiver of his
right to be arraigned without unreasonable delay." Commonwealth
v. Rosario, 422 Mass. 48, 56 (1996).
 10

what he meant, and the defendant responded, "Mexico is a fucked

up place. It was fucking crazy over there."

After arriving in Massachusetts, Framingham police officers

transported the defendant to the police station for booking.

The State trooper and the Framingham detective who had

accompanied the defendant from Texas interviewed him, and the

defendant stated "pretty emphatically that he did not want to be

recorded." The defendant signed new forms waiving his Miranda

rights as well as his rights pursuant to the Rosario rule.

During this interview, the defendant stated that he did not

think that Elinoff was "capable of killing his wife"; he

detailed the circumstances of their temporary separation, and he

stated that he was not surprised by the DNA result.

At trial, the defendant testified that a third-party

culprit, probably Elinoff, killed the victim.7 According to the

defendant, Elinoff was motivated by anger that the victim wanted

to give the baby up for adoption instead of allowing him to keep

her. The defendant also suggested to the jury that shortcomings

in the police investigation created reasonable doubt that he had

committed the murder. In his testimony, the defendant admitted

that he and the victim got into a minor "argument" on the

evening of August 4 regarding the victim's desire to take the

7
The police interviewed Elinoff for five hours on the night
that the body was found. The police also searched his vehicle.
 11

baby back from Elinoff and give her up for adoption. After the

argument, the defendant left the apartment with a bottle of

liquor to drink in an area under a bridge where people gathered.

He woke up when it was light out and walked the mile back to the

apartment. He went into the bedroom and saw the victim's body.

He decided to leave town instead of calling the police because

he knew he would be the prime suspect. He bought supplies so

that he could plan a "goodbye ceremony" for the victim and

wrapped her in those items and her "favorite blanket."

Discussion. 1. Juror attentiveness. The defendant argues

that the judge abused his discretion in failing to conduct a

voir dire of an inattentive juror and, because this error is

structural, he is entitled to a new trial. On the tenth day of

trial, the prosecutor alerted the judge that the juror in seat

number three "appears to be struggling to remain awake through

the entire testimony."8 The judge responded that he had not

noticed, but he would "keep an eye" on the juror and he

concluded that he was "not going to fiddle with the alternates

without good cause, but I think maybe I'll take [the juror] off

the list of potential forepeople." The prosecutor and defense

counsel accepted this suggestion.

8
The prosecutor made the same comment regarding the juror
in seat number twelve. Because juror number twelve was released
from service prior to deliberations for a work emergency, we do
not analyze any allegations regarding that juror's
attentiveness.
 12

A defendant's right to a constitutionally fair trial may be

impaired by a juror sleeping through a significant portion of

the trial. Commonwealth v. McGhee, 470 Mass. 638, 645-646

(2015), citing Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 182

(2009). "A judicial observation that a juror is asleep, or a

judge's receipt of reliable information to that effect, requires

prompt judicial intervention to protect the rights of the

defendant and the rights of the public, which for intrinsic and

instrumental reasons also has a right to decisions made by alert

and attentive jurors." Commonwealth v. Beneche, 458 Mass. 61,

78 (2010), quoting Dancy, supra at 181. "[N]ot every complaint

regarding juror attentiveness requires a voir dire," however,

and a judge has substantial discretion in this regard. McGhee,

supra at 644, quoting Beneche, supra. The defendant bears the

burden to demonstrate that a judge's response was "arbitrary or

unreasonable." McGhee, supra.

Although the defendant now argues that the judge was

required to hold a voir dire, the defendant has not met his

burden to demonstrate that the judge acted unreasonably in

deciding instead to remove the juror from the list of potential

forepersons and "keep an eye" on the juror. The defendant

relies on McGhee, 470 Mass at. 642, 643, 645-646, where we

vacated a defendant's convictions and remanded for a new trial

because the judge, based on his own "fail[ure] to observe any
 13

sleepiness," denied requests by the prosecutor and defense

counsel to hold a voir dire after receiving a reliable report

that a juror had been snoring and "sound asleep" during the

presentation of evidence.

This case is distinguishable from McGhee for two reasons.

First, in McGhee, the report was that the juror was asleep.

Here, the report was simply that the juror was "struggling to

stay awake." Where a judge has only tentative information that

a juror may be sleeping, it is sufficient to note the report and

monitor the situation. See Beneche, 458 Mass. at 78-79.

Second, the prosecutor and defense counsel in this case agreed

with the judge's plan, indicating that neither considered the

suggestion of monitoring to be particularly prejudicial.9 See

Commonwealth v. Lucien, 440 Mass. 658, 664 (2004) ("absence of

an objection suggests the lack of any prejudice from the judge's

practice").

2. Evidentiary issues. a. Autopsy photographs. The

defendant challenges as unduly prejudicial the admission, over

counsel's objection, of nineteen photographs and the judge's

failure to give a contemporaneous limiting instruction. In

particular, the defendant contends that the autopsy photographs

depicting close-up and medium distance views of the thirteen

9
Defense counsel indicated that he would watch the juror;
he, the prosecutor, and the judge made no further mention of the
attentiveness of this juror.
 14

stab wounds to the victim's body and the effect of decomposition

were unnecessarily gruesome and prejudicial. "The question

whether the inflammatory quality of a photograph outweighs its

probative value and precludes its admission is determined in the

sound discretion of the trial judge." Commonwealth v. Amran,

471 Mass. 354, 358 (2015), quoting Commonwealth v. Pena, 455

Mass. 1, 12 (2009). We defer to the judge's exercise of

discretion unless the judge has made "'a clear error of judgment

in weighing' the factors relevant to the decision, . . . such

that the decision falls outside the range of reasonable

alternatives" (citations omitted). L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).

Recognizing the heightened risk of prejudice from autopsy

photographs depicting a body in a state of decomposition, we

have cautioned that such photographs should be admitted only if

the judge determines that "they are important to the resolution

of any contested fact in the case." Commonwealth v. Bastarache,

382 Mass. 86, 106 (1980). Here the autopsy photographs

depicting the thirteen stab wounds to the victim's body in a

state of decomposition and the location of the body at the crime

scene were indisputably probative of extreme atrocity or cruelty

and premeditation, the theories of murder on which the defendant

was tried. It is settled law "that photographs indicating the

force applied and portraying the injuries inflicted may properly
 15

be admitted on the issue of whether the murder was committed

with extreme atrocity or cruelty, as well as on the issue of

premeditation and deliberation." Commonwealth v. Meinholz, 420

Mass. 633, 635 (1995), and cases cited. In considering the

theory of extreme atrocity or cruelty, the jury would be

required to consider the factors listed in Commonwealth v.

Cunneen, 389 Mass. 216, 227 (1983). Of those factors, the

autopsy photographs are probative of: "consciousness and degree

of suffering of the victim, extent of physical injuries, number

of blows, manner and force with which delivered, instrument

employed, and disproportion between the means needed to cause

death and those employed." Id. The photograph depicting the

victim's body surrounded by trash bags was relevant to

concealment and, thus, to the defendant's consciousness of

guilt. The photographs depicting the advanced state of

decomposition of the victim's body were relevant to the time of

death which, based on reasonable inferences, could have occurred

several days before the body was found and before the defendant

fled to Mexico. See Commonwealth v. Nadworny, 396 Mass. 342,

366-367 (1985), cert. denied, 477 U.S. 904 (1986).

The judge properly weighed the probative value of the

photographs against the prejudice to the defendant. Because

photographs that depict a decomposing body may be more

inflammatory, "special caution" is warranted in the admission of
 16

such photographs. Commonwealth v. Cardarelli, 433 Mass. 427,

431 (2001). Having determined that the photographs were

"important to the resolution of . . . contested fact[s] in the

case," Bastarache, 382 Mass. at 106, the judge appropriately

determined that the prejudice could be acceptably mitigated and

did so.

A judge may mitigate prejudice in several ways: "alerting

the venire during jury selection that graphic photographs might

be admitted in evidence, and [asking] potential jurors if that

might cause anyone particular difficulty"; limiting the number

of photographs admitted; prohibiting the Commonwealth from

displaying the photographs on a high-resolution video screen;

and instructing the jury that they should not be swayed by

emotion by the introduction of the photographs. Amran, supra at

358. In the exercise of discretion in handling the admission of

autopsy photographs, a judge is not required to take all of

these steps. See, e.g., Commonwealth v. Vizcarrondo, 431 Mass.

360, 362-363 & n.2 (2000), S.C., 447 Mass. 1017 (2006) (voir

dire questioning and contemporaneous instructions "appropriate

precautionary steps" for introduction of photographs showing

victim's injuries); Commonwealth v. Jackson, 428 Mass. 455, 465

(1998) (absence of limiting instruction not "sufficient to

render the admission of the photographs error"); Nadworny, 396

Mass. at 366-367 (no abuse of discretion where judge "diligently
 17

reviewed the photographs, eliminating one as redundant," and

gave limiting instruction regarding depictions of "badly

decomposed body of the deceased in the fetal position in which

it had been bound"). We need only determine that steps taken by

the judge sufficiently mitigated the prejudice. Jackson, 428

Mass. at 465 (mitigating factors "considered in determining

whether the photographs were more prejudicial than probative").

Here, the judge questioned the venire during voir dire to

weed out those jurors who would have difficulty in remaining

impartial after viewing the graphic autopsy photographs. The

judge also carefully reviewed the twenty autopsy photographs

submitted by the prosecutor, out of the more than 300

photographs that were available, and he winnowed the number to

eighteen, each of which was probative of a point that the others

were not. During final instructions, the judge explained that

the jury were not "to let [their] verdicts be influenced in any

way by the fact that the photos were graphic."10 These steps

sufficiently mitigated the prejudice inherent in use of such

evidence.

10
The judge mistakenly stated that he had given a limiting
instruction on this issue during the trial. However, he had not
done so. The only prior time that the judge mentioned the
photographs to the jury was during the voir dire when he alerted
the venire that the written questionnaire would ask whether
viewing "graphic and unpleasant" photographs would affect the
juror's ability to be fair and impartial.
 18

The defendant challenges the omission of a contemporaneous

limiting instruction, which he failed to request when his

objection to the admission of the photographs was overruled.

Although it may have been better practice to give a limiting

instruction before the photographs were introduced, the judge

did not abuse his discretion in handling the autopsy

photographs. Jackson, 428 Mass. at 465 ("absence of [concurrent

limiting] instruction is not, by itself, sufficient to render

the admission of the photographs error").

b. Prejudicial statements. The defendant argues that

certain of his statements were erroneously admitted at trial

because they were irrelevant and unfairly prejudicial. As the

defendant did not object, we review to determine whether any

error caused a substantial likelihood of a miscarriage of

justice. Commonwealth v. Wright, 411 Mass. 678, 681 (1992),

S.C., 469 Mass. 447 (2014).

First, the defendant told the arresting officers, "I've

never been so happy to be arrested in my whole life." The

defendant argues that reference to the prior arrest improperly

suggests a propensity for criminal behavior. This statement,

together with the defendant's follow up that "Mexico is a

fucked-up place," was relevant to why the defendant was crossing

back into the United States from Mexico when he was arrested.

Moreover, the jury were not likely to focus on any implication
 19

of prior arrests where some of the defendant's prior convictions

were introduced during his testimony.

Second, the defendant challenges the admission of a

statement in which he questioned the police officers

accompanying him on the return trip to Massachusetts about

whether the media were comparing him to a man who had shot his

wife and infant and then fled the country. He argued that the

reference was highly prejudicial because the jurors may have

been aware that the defendant in that case had been convicted of

murder and viewed the two cases as similar.11 The defendant's

comparison to another murder may not have been particularly

relevant, but it did not create a substantial likelihood of a

miscarriage of justice in light of the strong case against the

defendant.

Third, the defendant claims error in the admission of a

statement to police that he and the victim had been "together"

since she was fourteen years of age, arguing that reference to

the victim's age indicated the prior bad act of a sexual

relationship with a minor. There was no error in admitting the

statement referencing the victim's age when she and the

defendant were first "together." In the circumstances of this

case, "the jury were entitled to evidence describing the whole

11
See Commonwealth v. Entwistle, 463 Mass. 205, 206 (2012),
cert. denied, 133 S. Ct. 945 (2013).
 20

relationship." Commonwealth v. Robertson, 408 Mass. 747, 751

(1990).

c. Victim's purse. The defendant argues that trial

counsel was ineffective for failing to file a motion to suppress

the victim's purse, wallet, and identification that were found

in the defendant's hotel room on August 6, when police performed

a well-being check on the defendant's daughter.12 The officer

who found the items testified that there "were several grocery

bags" in the defendant's hotel room. In one of the bags, he

"noticed a large gallon of vodka" and a female's purse. The

purse "was in plain view in the bag as [he] looked in." The

defendant consented to the officer's request to "look" at the

purse. The officer found a wallet containing two items of

identification with the victim's name on them, and he put them

back in the purse after looking at them.

12
The evidence was not seized nor was it contained in the
police report from that incident. The evidence was, however,
mentioned in the probable cause affidavit supporting the warrant
application to search the defendant's apartment. Three days
before trial, the prosecutor notified defense counsel that the
defendant had made a statement to police during the well-being
check about the identification belonging to the victim and that
the purse was just with the baby's things when he picked them
up. During trial, counsel filed a motion to exclude the
evidence and statement, arguing that he had not been properly
notified. The judge denied the motion after concluding that the
issue was waived because relevant information was contained in
the probable cause affidavit. Trial counsel moved for a
mistrial after this ruling, arguing that he would have been
ineffective for not raising the issue earlier. The judge
responded that "'ineffective' is not a word that comes to mind
in my observations of you."
 21

The defendant challenges the consent to search the purse,

arguing that his intoxication and the coercive environment

negated the voluntariness of any consent he may have given. The

defendant contends that this evidence created a substantial

likelihood of a miscarriage of justice because the possession of

the purse and its contents suggested a consciousness of guilt

and the prior bad act of stealing from a deceased person.

"The question whether consent was voluntary is a question

of fact to be determined in the circumstances of each case, with

the burden of proof on the government." Commonwealth v. Carr,

458 Mass. 295, 302 (2010), quoting Commonwealth v. Aguiar, 370

Mass. 490, 496 (1976). "An otherwise voluntary act is not

necessarily rendered involuntary simply because an individual

has been drinking or using drugs." Commonwealth v. Silanskas,

433 Mass. 678, 685 (2001), quoting Commonwealth v. Shipps, 399

Mass. 820, 826 (1987), S.C., 472 Mass. 1001 (2015).

The defendant's claim is unavailing. One of the responding

officers described the defendant as "somewhat intoxicated, calm,

cooperative." Another testified that the defendant was able to

understand and respond to his questions, and that he was able to

properly change his daughter's diaper at the officer's request.

An investigator with the Department of Children and Families

testified that the defendant was "able to converse with [her]

without any problem." Because a motion to suppress on this
 22

ground likely would not have succeeded, counsel was not

ineffective. Commonwealth v. Comita, 441 Mass. 86, 91 (2004).

The evidence clearly demonstrates that the defendant was not too

intoxicated to give consent and there was no evidence of

coercion.

3. Jury instructions. a. Unrecorded interview. The

police interview on the evening of August 16, 2010, at the

Framingham police station was unrecorded after the defendant

stated "pretty emphatically that he did not want to be recorded"

and signed a form acknowledging that he understood and waived

his Miranda rights and that he "d[id] not want [their]

discussion recorded." The form was admitted at trial. At the

defendant's request, the judge gave instructions before the

defendant's statements were introduced and during the final

charge in accordance with DiGiambattista, 442 Mass. at 447-448,13

13
After Commonwealth v. DiGiambattista, 442 Mass. 423, 447-
448 (2004), we required, "when the prosecution introduces
evidence of a defendant's confession or statement that is the
product of a custodial interrogation or an interrogation
conducted at a place of detention (e.g., a police station), and
there is not at least an audiotape recording of the complete
interrogation" and the defendant requests, that judges provide a
jury instruction advising that:

"the State's highest court has expressed a preference that
such interrogations be recorded whenever practicable, and
cautioning the jury that, because of the absence of any
recording of the interrogation in the case before them,
they should weigh evidence of the defendant's alleged
statement with great caution and care. Where voluntariness
is a live issue and the humane practice instruction is
 23

which alerted the jury that they should consider the credibility

of the evidence with "great caution" and permitted the jury to

conclude that the statements were not made voluntarily because

the interview was unrecorded. The judge added that the

defendant has the "right" to refuse the recording.14 The

defendant objected to the added language, asserting that there

is "no right of a defendant to reject the recording." The judge

explained to counsel that his intention was to protect the

defendant from his refusal "reflect[ing] badly on him" and that

he thought the additional language was correct.

The defendant argues that the judge erred in instructing

the jury that the defendant had a "right to decline" recording

of his custodial interrogation because DiGiambattista created no

such right, only an obligation of the police to record the

statement. He further argues that we should require that all

interrogations be recorded or subject to an exclusionary rule.

We conclude that neither argument has merit.

given, the jury should also be advised that the absence of
a recording permits (but does not compel) them to conclude
that the Commonwealth has failed to prove voluntariness
beyond a reasonable doubt."
14
The judge's contemporaneous instruction included the
following elaboration: "I should say at this point that it was
[the defendant's] right to decline the recording. That's why
the form is there. That's why he was asked the question. So,
that's just the way it is. But the lack of a recording has
those implications for you."
 24

The DiGiambattista instruction "is required even when a

defendant has refused a recording of his custodial

interrogation." Commonwealth v. Rousseau, 465 Mass. 372, 392

(2013). In Rousseau, supra at 391, as in this case, the

defendant elected not to have his interview recorded orally by

"initialing his refusal on his Miranda waiver form."15 We

approved language instructing the jury that they could consider

"whether the defendant was given an opportunity to have his

interrogation recorded, and whether the defendant voluntarily

elected not to have his interrogation recorded." Id. at 393.

Although in Rousseau, supra at 392, we cautioned against

advising juries that defendants have "waived" the decision to

have their interrogations recorded because waiver is a question

of fact, the "gist of the judge's additional language" was not

problematic in terms of the rule we adopted in Rousseau. We now

add that the better practice is not to instruct juries that

defendants have a "right" to refuse recording. Permission to

record an interview is not required so long as the interviewee

has actual knowledge of the recording. See Commonwealth v.

Boyarsky, 452 Mass. 700, 705 (2008), citing Commonwealth v.

Jackson, 370 Mass. 502, 507 (1976) ("A recording that is made

15
In Commonwealth v. Rousseau, 465 Mass. 372, 392 (2013),
the police recorded the defendant's decision not to have the
interview recorded, and the audio recording was played for the
jury. We recommend following this practice where a suspect
refuses to have his or her interview recorded.
 25

with the actual knowledge of all parties is not an interception,

even if they have not affirmatively authorized or consented to

it"). Cf. G. L. c. 272, § 99 (B) (4), (C) (1) (prohibiting

secret recordings).

In any event, the defendant is not entitled to relief

because the judge's instructions satisfied the intent of the

DiGiambattista instruction as interpreted in Rousseau. The

judge gave the instruction before we proposed specific language

in Rousseau, and we again recommend the language in Rousseau for

similar circumstances. In addition, as we have said before, a

"judge need not use any particular words in instructing the jury

as long as the legal concepts are properly described."

Commonwealth v. Robinson, 449 Mass. 1, 8 (2007), citing

Commonwealth v. Torres, 420 Mass. 479, 484 (1995).

In connection with this argument, the defendant challenges

the police practice of advising suspects that he or she has the

"right" to decline recording. In this case, the police used a

form that advised the defendant that he had a choice whether or

not to have his interview recorded and asked him to initial his

name next to his choice and sign the form.16 As discussed, the

police need only provide notification of a recording; permission

to record is implied by any statements made after such

16
The amici advise that various versions of this form are
used by police departments in the Commonwealth.
 26

notification. Accordingly, the better practice going forward is

simply to advise suspects of the recording instead of requesting

permission to record.17 A suspect's refusal to be recorded,

however, does not cause unrecorded statements to be

inadmissible.18

Last, we have declined requests to adopt an exclusionary

rule in DiGiambattista and in subsequent cases. See, e.g.,

Commonwealth v. McCowen, 458 Mass. 461, 472 n.9 (2010). The

defendant has offered no persuasive reason to change course,

especially where his refusal to allow recording would likely be

an exception to any such rule. DiGiambattista, 442 Mass. at

445.

b. Extreme atrocity or cruelty. The defendant challenges

the judge's instructions on murder in the first degree committed

with extreme atrocity or cruelty, arguing that the Commonwealth

should be required to prove that a defendant intended that the

victim suffer greatly or was indifferent to such suffering and

17
Although there was no error in the police officer's use
of the form, we recommend going forward that police, instead of
requesting permission to record, advise that the interview is
being recorded.
18
Regardless, the defendant suffered no prejudice where the
statements he made during this interview added little to the
strong case against him. Specifically, a State trooper who
conducted the interview testified that the defendant denied
killing his wife, described their marriage, and said that he was
not surprised by the result of the deoxyribonucleic acid test.
 27

the instructions should reflect that element of proof.19 As a

threshold matter, the judge's instructions were consistent with

the model instruction in effect at the time of trial. Model

Jury Instructions on Homicide 11-14 (1999). We have declined a

similar request to modify the current law in Massachusetts, and

we decline to do so here. See, e.g., Commonwealth v. Boucher,

474 Mass. 1, 8 (2016) (reiterating that convictions of murder on

theory of extreme atrocity or cruelty do not require intent

"beyond the requirement of malice needed for all convictions of

murder"). Even were we inclined to make such a change, this

would not be an appropriate case to do so where the defendant's

actions, including inflicting thirteen separate stab wounds,

satisfies the very instruction he is requesting.

4. Relief pursuant to G. L. c. 278, § 33E. We have

examined the record pursuant to our duty under G. L. c. 278,

§ 33E, and we discern no basis on which to grant the defendant

relief.

Judgments affirmed.

19
The defendant does not appear to have requested this jury
instruction, but he objected to the applicable portion of the
instructions before and after they were given.