Commonwealth v. Vargas

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SJC-10075

COMMONWEALTH vs. PABLO VARGAS.

Hampden. March 11, 2016. - August 30, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.1

Homicide. Constitutional Law, Admissions and confessions,
Voluntariness of statement, Waiver of constitutional
rights, Assistance of counsel, Public trial. Due Process
of Law, Assistance of counsel, Interpreter. Evidence,
Admissions and confessions, Voluntariness of statement,
Hearsay. Waiver. Telephone. Defense of Others. Self-
Defense. Interpreter. Practice, Criminal, Admissions and
confessions, Voluntariness of statement, Waiver, Assistance
of counsel, Instructions to jury, Hearsay, Motion to
suppress, New trial, Interpreter, Public trial, Capital
case.

Indictment found and returned in the Superior Court
Department on November 2, 2004.

A pretrial motion to suppress evidence was heard by Daniel
A. Ford, J.; the case was tried before Francis R. Fecteau, J.;
and a motion for a new trial, filed on December 23, 2013, was
heard by C. Jeffrey Kinder, J., and a motion for reconsideration
was also heard by him.

1
Justice Cordy participated in the deliberation on this
case and authored this opinion prior to his retirement. Justice
Spina participated in the deliberation on this case prior to his
retirement.
 2

John M. Thompson for the defendant.
Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.

CORDY, J. There is no dispute that on the night of

September 23, 2004, the victim, Tremayne King, was killed by the

defendant, Pablo Vargas. The defendant stabbed the victim eight

times during an altercation at the residence of the victim's

estranged wife, Yanira Rodriguez, who was the defendant's girl

friend. At trial, the defendant sought to rebut the charge of

murder in the first degree on the theory of self-defense,

alleging that he fought and killed the victim because he feared

for his life.

On May 24, 2006, a Hampden County jury convicted the

defendant of murder in the first degree on a theory of extreme

atrocity and cruelty, rejecting the Commonwealth's alternative

theory of premeditation. In December, 2013, the defendant moved

for a new trial, which was denied, as was his motion for

reconsideration thereof.

On appeal from his conviction and from the denial of his

motion for a new trial, the defendant claims that (1) his

statement made during police questioning shortly after the

altercation should have been suppressed; (2) the trial judge

erred in excluding relevant so-called Adjutant evidence of the

victim's history of violence, see Commonwealth v. Adjutant, 443
 3

Mass. 649, 664 (2005); (3) the judge erred in admitting certain

testimony concerning the defendant's statements made to a third

party; (4) the judge erred in denying his request for an

instruction on defense of another; (5) the judge's jury

instructions on malice, self-defense, and voluntary manslaughter

were erroneous and created a substantial likelihood of a

miscarriage of justice because they allowed the jury to convict

the defendant without considering mitigating circumstances; (6)

a qualified interpreter should have been appointed to assist

with the testimony of Rodriguez, who was a witness to the

altercation; (7) his right to a public trial was violated when

the court room was closed during jury selection; (8) trial

counsel was ineffective; and (9) evidence that was newly

discovered after trial warranted the granting of a new trial.

The defendant also requests that we exercise our authority under

G. L. c. 278, § 33E, to order a new trial or reduce the verdict

of murder in the first degree to voluntary manslaughter.

Although our review of the record does not reveal any

errors that would warrant a new trial, the circumstances of this

case persuade us that a reduction of the defendant's conviction

from murder in the first degree to voluntary manslaughter is

more consonant with justice. We therefore vacate the

defendant's conviction of murder in the first degree and his

sentence, and we remand the case to the Superior Court for the
 4

entry of a verdict of guilty of voluntary manslaughter and for

imposition of sentence.

Background. We recite the facts in the light most

favorable to the Commonwealth, reserving certain details for our

analysis of the issues raised on appeal.

At 11:48 P.M. on September 23, 2004, Springfield police

Detective Norman Shink and three other officers arrived at an

apartment building on Bristol Street in Springfield. Shink saw

a man, who was later identified as the defendant, in front of an

apartment on the second floor. The defendant lifted his shirt,

revealing a bloody knife tucked into his waistband, and said,

"This is the knife I used to stab him. Take it. Take it. He

was beating me real bad. I had no choice. It was self-

defense."

Rodriguez lived in the apartment on Bristol Street with her

three children. She was married to the victim, but the two were

estranged. The victim had enlisted in the National Guard, and

on July 10, 2004, was assigned to Fort Drum, in New York, to

train for deployment to Iraq. At that time, the victim and

Rodriguez separated. The victim left a number of personal

belongings stored at the apartment, including several handguns.

In August, 2004, the defendant began staying at Rodriguez's

apartment, and he was there on the evening of September 23.

That day, Rodriguez received a telephone call from the victim,
 5

who had received a pass from the National Guard and planned to

return to the apartment to retrieve his belongings. The victim

did not specify when he would be arriving.2

The defendant was present when Rodriguez spoke with the

victim. She discussed the conversation with him and encouraged

him to leave before the victim arrived. The defendant did not

do so.

At approximately 11:30 P.M. that evening, Rodriguez was

sitting on a couch watching television in the living room. She

heard a sound at the door and observed a hand reaching in

through the partially opened door and sliding the chain lock up

to release it and gain access to the apartment. At this point,

the victim burst in and attacked her, hitting her with his fists

as she covered her face with her arms. The defendant, who was

in the bedroom at the time, came into the living room and said

something to the victim. The victim ran at the defendant,

knocking him back into the bedroom and jumping on top of him.

The defendant shouted for Rodriguez to telephone the police, and

Rodriguez ran to an apartment next door. One of the occupants

2
On September 23, the victim drove with a fellow soldier to
Springfield from Fort Drum. The soldier was called as a witness
for the Commonwealth. He testified that while en route, the
victim made two telephone calls. The first was to a female (who
the witness did not know), to whom the victim stated falsely
that he was not coming to Springfield that day because his pass
had been delayed. In the second call, he told the person that
he was coming home to get divorce papers, pick up his weapons,
and surprise his wife.
 6

answered the door; Rodriguez begged him to telephone 911 and

stated that the victim had a firearm, although she had not seen

the victim with any weapon. When she returned to her apartment,

Rodriguez saw the victim lying on the couch, bleeding. No

firearm was found in the victim's possession.

The victim went into cardiac arrest and died while being

transported to the hospital. A medical examiner determined that

of the eight stab wounds sustained by the victim, four had been

lethal. One wound to the victim's left upper arm was defensive.

Discussion. 1. Motion to suppress statement. The

defendant was arrested and interrogated by Sergeant Roy Carter

and Shink at the Springfield police department in the early

hours of September 24, 2004. The interview was recorded.3,4

3
During the interview, the defendant shared his version of
events, including that he saw the victim carrying a gun and that
he used the knife in self-defense. The defendant described the
gun as black and gray, which was similar to one of the two guns
found by police during a search of the victim's personal
belongings (which had been stored at the apartment) and
described to the jury as "two-tone." The defendant's statement
indicated the following: A man whom the defendant did not
recognize barged into Rodriguez's apartment while the defendant
and Rodriguez were sitting on the couch. The man attacked
Rodriguez and then proceeded to charge at the defendant. The
man hit the defendant, tackled him, and jumped on top of him.
The defendant saw the man had a gun, "freaked out," and grabbed
a knife to defend himself. The defendant told the man to stay
back, and when he did not do so, the defendant began to swing
the knife. The two fell to the ground, at which point the
defendant noticed that the man began to lose strength due to
being stabbed.
 7

Prior to questioning, Carter read and presented the

defendant with the Miranda rights. See Miranda v. Arizona, 384

U.S. 436 (1966). When Carter instructed the defendant as to his

right to an attorney,5 the defendant asked, "Is there a lawyer

here present?" Carter responded, "No, there isn't." Carter

then proceeded with his presentation of the Miranda rights,

including that the Commonwealth would provide a lawyer if the

defendant could not afford one. Carter read the Miranda

warnings for a second time, the defendant initialed the warnings

as they were read, and the defendant indicated that he wished to

speak to police.

4
The recording was played at trial. In its closing
argument, the Commonwealth characterized the defendant's
statement as self-serving, and specifically attempted to
undermine the credibility of the self-defense theory by
highlighting various inconsistencies between the statement and
reality. The prosecutor stated: "One of the most important
pieces of evidence you will have in the jury deliberation is a
copy of the [recording] of the statement taken by the police at
the police station."
5
The Miranda warning form for the Springfield police
department, see Miranda v. Arizona, 384 U.S. 436 (1966),
contained an error as to the right to counsel warning. The
document provided: "You have the right to talk for advice
before we ask you any questions and to have him with you during
questioning." Sergeant Roy Carter verbally corrected this
error, as his instruction was, "[Y]ou have the right to talk to
a lawyer for advice before we ask you any questions and you can
have him with you during questioning."

The form also presented the defendant with the Miranda
rights prior to informing him of his right to use a telephone.
 8

The police then notified the defendant of his right to use

the telephone. The defendant indicated that he intended to use

the telephone, and Carter told him that he would be allowed to

do so. The defendant checked the box indicating that he had

used the telephone, and signed that he had been notified of his

rights. The space on the form for timing of the defendant's

telephone call was left blank, and the defendant never made a

telephone call.

Prior to trial, the defendant moved to suppress his

statement. He argued that the statement was obtained in

violation of his Fifth Amendment rights,6 specifically that (1)

he had not made a voluntary waiver of his Miranda rights due to

his lack of language skills; (2) his waiver was not knowing

because of the faulty Miranda warning; and (3) his statement,

6
The defendant's motion did not specifically address the
defendant's cognate protections under art. 12 of the
Massachusetts Declaration of Rights. The Commonwealth argues
that any arguments under art. 12 have therefore been waived.
See Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516
(2004) ("A pretrial motion shall state the grounds on which it
is based and shall include in separately numbered paragraphs all
reasons, defenses, or objections then available, which shall be
set forth with particularity"). See also Commonwealth v. Mubdi,
456 Mass. 385, 389 (2010) (under rule 13 [a] [2], affidavits
"must be sufficiently detailed to give fair notice to the
prosecution"). Article 12 was, however, addressed at the motion
to suppress hearing. The defendant's art. 12 claims are not
waived; issues of notice are irrelevant, as art. 12 guarantees
the same rights as does the Fifth Amendment, see Commonwealth v.
Clarke, 461 Mass. 336, 337 (2012), and the motion judge relied
on cases interpreting both the Massachusetts Declaration of
Rights and the United States Constitution in denying the motion
to suppress.
 9

"Is there a lawyer here present?" constituted an invocation of

his right to counsel, which invocation was not scrupulously

honored.7 At an evidentiary hearing on the issue, the defendant,

Carter, and Shink testified. Carter and Shink both testified

that the defendant was eager to share his version of events.

The judge credited the officers' testimony, and, after reviewing

the recording of the interview, denied the motion. The judge

found that the defendant had been advised of his rights, that he

had a sufficient command of English to understand and waive

those rights, that he had been informed of his statutory right

to use the telephone, and that he had not made an unambiguous

request for counsel.

On appeal, the defendant challenges the denial of his

motion to suppress on three grounds: (1) the police did not

scrupulously honor his invocation of his art. 12 right to

counsel; (2) his statutory right to use the telephone, under,

G. L. c. 276, § 33A, was intentionally violated; and (3) he did

not make a knowing and voluntary Miranda waiver.

7
The defendant's motion to suppress his statement did not
specifically set forth the purported G. L. c. 276, § 33A,
violation of his telephone rights. See Mass. R. Crim. P. 13 (a)
(2). However, the claim that G. L. c. 276, § 33A, was violated
was addressed by the motion judge, and a suppression challenge
on that ground is therefore not waived. See Mass. R. Crim. P.
13 (a) (2) ("Grounds not stated which reasonably could have been
known at the time a motion is filed shall be deemed to have been
waived, but a judge for cause shown may grant relief from such
waiver").
 10

a. Statutory right to use telephone. Under G. L. c. 276,

§ 33A, "an arrested person [must] be informed of his right to

use the telephone as soon as reasonably practicable after

arrival at the station." Commonwealth v. Bouchard, 347 Mass.

418, 420 (1964). "The exclusionary rule applies to intentional

deprivation by police of a defendant's rights under G. L.

c. 276, § 33A." Commonwealth v. Hampton, 457 Mass. 152, 155

(2010).

There was not an intentional deprivation of the defendant's

statutory telephone rights. The defendant was informed of his

right to use the telephone after waiving his Miranda rights.

Carter asked the defendant if he "intend[ed] to use the

[tele]phone." The defendant said, "Yes." Some confusion

followed, as there was no indication that the defendant wanted

to use the telephone at that moment or after he spoke with

police. The record does reflect, however, that the defendant

was eager to speak to police. In any event, although the

defendant was not informed of his right to use the telephone for

at least one hour and twenty-five minutes after he had been

brought to the station,8 "he was informed before the inculpatory

8
Carter testified that the defendant arrived at the police
station at 12:20 A.M. The defendant was handcuffed to a chair
in the detective bureau. The recording of the interview
indicated that it began at 1:40 A.M., and, roughly five minutes
into the interview, the defendant was informed of his right to
use the telephone.
 11

statement was given." Commonwealth v. Espada, 450 Mass. 687,

702 (2008). Contrast Commonwealth v. Jones, 362 Mass. 497, 503

(1972) (statement suppressed where police waited more than one

hour to inform defendant of right to make telephone call and

damaging confrontation occurred in interim period). There was

no error.

b. Right to counsel. The defendant claims that his

question, "Is there a lawyer here present?" asked while Carter

was reading him his Miranda rights, was an invocation of his

right to counsel, and should have resulted in the cessation of

the interrogation. His subsequent statements, he argues, should

therefore have been suppressed. We disagree.

Miranda, 384 U.S. at 444, requires that "[p]rior to any

questioning, the [suspect] must be warned that he has a right to

remain silent, that any statement he does make may be used as

evidence against him, and that he has a right to the presence of

an attorney, either retained or appointed." Miranda "protects

both Fifth Amendment rights and rights guaranteed under art. 12"

(citation omitted). Commonwealth v. Clarke, 461 Mass. 336, 345

(2012). Once a suspect invokes his or her right to counsel,

"all interrogation must cease until counsel is made available,

unless the [suspect] himself [or herself] reinitiates further

communication with the police." Commonwealth v. Hoyt, 461 Mass.

143, 149 (2011)
 12

The defendant's question concerning whether an attorney was

present at the police station was, at best, ambiguous as to

whether he was invoking his right to counsel.9 In response,

Carter properly sought to clarify any ambiguity by repeating

that the defendant had a right to counsel prior to questioning,

advising him that he would be provided with an attorney if he

could not afford one, and asking him if he understood those

rights. The defendant told Carter that he did, and proceeded to

initial the document to indicate his acknowledgement and then to

assent to police questioning. There was no error in the judge's

ruling that the defendant had not invoked his right to counsel.

c. Knowing and voluntary waiver of rights. The defendant

twice heard and then signaled comprehension of his Miranda

rights. When the defendant asked if there was a lawyer present

during the reading of his rights, the police responded

accurately and promptly. Prior to questioning, Carter verified

that the defendant was not intoxicated and that he could

9
The suspect "must articulate his desire to have counsel
present sufficiently clearly that a reasonable police officer in
the circumstances would understand the statement to be a request
for an attorney." Davis v. United States, 512 U.S. 452, 459
(1994). See Commonwealth v. Vincent, 469 Mass. 786, 796 (2014)
("defendant's statements concerning possibly needing or wanting
a lawyer were ambiguous and equivocal, and would not reasonably
be understood in the circumstance to constitute an invocation of
the right to counsel" [quotations and citation omitted]).
 13

comprehend the English language.10 The motion judge found and

the record reflects that the defendant was eager to share his

version of the events with police. We note also that the

defendant's statement to the police was self-serving, in that it

supported his theory of defense. There was no error, and the

denial of the defendant's motion to suppress is affirmed.

2. Adjutant evidence. At trial, the defendant sought to

introduce, under Adjutant, 443 Mass. at 664, evidence concerning

the victim's history of violence in order to show that the

victim was the initial aggressor in the altercation that

resulted in the victim's death. That evidence would largely

have consisted of testimony concerning the victim's prior

violence toward Rodriguez. The trial judge determined that the

issue as to the initial aggressor was not in dispute, and did

not allow the evidence to be admitted for that purpose.11

10
The defendant indicated that he had trouble reading and
writing English. However, the defendant told Carter that he had
secured his "GED," which we interpret as a reference to passing
a general education development test, and Carter testified at
the motion to suppress hearing that the defendant had "[n]o
difficulty at all" with the English language. The motion judge
found that "the defendant is fluent in English" and that
"language was simply not an impediment to the interview that
took place."
11
Rodriguez was, however, allowed to testify to violent
acts committed by the victim against her, to the extent that she
had conveyed those acts to the defendant, which she testified
she had. The trial judge instructed the jury:
 14

"[W]here the identity of the first aggressor is in dispute

and the victim has a history of violence, . . . the trial judge

has the discretion to admit evidence of specific acts of prior

violent conduct that the victim is reasonably alleged to have

initiated, to support the defendant's claim of self-defense."

Adjutant, 443 Mass. at 664. The definition of "first aggressor"

pertains not only to "the person who initiated the

confrontation, but also the person who initiated the use or

threat of deadly force, as 'resolution of both issues may assist

the jury in deciding whether the prosecution has met its burden

of proving that the defendant did not act in self-defense.'"

Commonwealth v. Camacho, 472 Mass. 587, 592 (2015), quoting

Commonwealth v. Chambers, 465 Mass. 520, 529-530 (2013).

Evidence of the victim's history of violence would not have

bolstered the defendant's case, as the question of initial

aggressor was never at issue. There was no conflicting evidence

as to the series of events leading up to the victim's death.

The only accounts of the altercation came from the defendant

(through his statement to police) and Rodriguez, who was called

as a Commonwealth witness, both of which were consistent in

"You are permitted to hear these out-of-court
statements not for the truth of the matters contained,
but for the fact of a conversation . . . [The
information] may be considered by you on the issue of
the defendant's state of mind or his state of
knowledge concerning those aspects, those events."
 15

their portrayal of the victim as the initial aggressor.12 The

jury also heard substantial evidence supporting the defendant's

self-defense theory: the victim was significantly larger than

the defendant;13 and the victim had been trained in unarmed

combat, including the incapacitation and killing of individuals,

with or without weapons.14 Based on that evidence, and given

12
Rodriguez's testimony as to the portion of the
altercation that she witnessed included the following exchange
on cross-examination:

Q.: "[A]fter your husband, burst into that apartment on
the night of his death, you said that he grabbed [the
defendant,] correct?"

A.: "Yes, sir."

. . .

Q.: "Was your husband on top of him?"

A.: "Yes, sir."

Q.: "Did your husband have his hand on [the defendant]?"

A.: "Yes, sir."

Q.: "Was [the defendant] able to get away from [the
victim]?"

A.: "No, sir."
13
The victim was six feet tall and approximately 180
pounds, while the defendant was five feet, six inches tall and
weighed 114 pounds when he was booked.
14
When the judge charged the jury, he instructed that
"deadly force" can be used in self-defense where "the person
using the weapon or deadly force [has] a reasonable apprehension
of great bodily harm or death and a reasonable belief that no
other means would suffice to prevent such harm." The jury were
 16

that there was no deadly weapon found with the victim, the

assumption required to make the defendant's self-defense case

was that the victim immediately used deadly force (with his

hands and body) when the altercation began, and a deadly weapon

was not necessary. The defendant's proposed history of violence

evidence would therefore have been both cumulative and

unnecessary in making a case of self-defense, see Adjutant, 443

Mass. at 663, and there was no "great[] danger that the

exclusion of the evidence concerning the victim's violent acts"

prejudiced the defendant. Camacho, 472 Mass. at 593.15

allowed to "consider evidence of the relevant physical
capability of the combatants, how many persons were involved on
each side, the characteristics of any weapons used, the
availability of rooms to maneuver, or any other factors . . .
relevant to the reasonableness of the defendant's conduct under
the circumstances."
15
The defendant argues that, in its closing, the
Commonwealth put at issue the initial aggressor question.
During closing arguments, the prosecutor described the defendant
and Rodriguez's versions of events as "wildly exaggerated" and
posed an alternative series of events, indicating that the
defendant may have been waiting for the victim so as to "ambush
him" with a knife. The prosecutor went on to say that "[c]ommon
sense should tell you [Rodriguez and the defendant] were waiting
and [the defendant] was prepared and ready for the eventuality
that [the victim] would walk in and be upset to find the
defendant and his wife." This postulation did not change the
evidence presented in terms of who was the initial aggressor.
And, to the extent that the Commonwealth's "ambush" argument was
intended to persuade the jury that the murder was premeditated,
the jury rejected that theory.
 17

3. Jury instructions.16 The jury were instructed as to the

prerequisites for a guilty finding of murder in the first

degree, murder in the second degree, and manslaughter. As to

murder in the first degree, the jury were instructed on the

theories of deliberate premeditation and extreme atrocity or

cruelty. The jury returned a verdict convicting the defendant

or murder in the first degree under the theory of extreme

atrocity or cruelty. The defendant now claims error with the

judge's decision, over his objection, not to instruct the jury

on defense of another, and, for the first time, objects to

various portions of the self-defense and homicide instructions,

particularly those related to malice and voluntary manslaughter.

a. Defense of another. The defendant argues that the

judge erred by refusing to instruct the jury on the question of

defense of another, given that he intervened after the victim's

attack on Rodriguez.17 Because the defendant's exception was

16
The homicide jury instructions in this case were based on
the 1999 Model Jury Instructions on Homicide.
17
In declining to instruct the jury on defense of another,
the judge reasoned:

"The way I was looking at the evidence, I don't think
it supports it because the evidence would indicate that the
defendant appeared not to have armed himself until he
himself was being attacked and wasn't intervening in the
attack on another while armed. So I think the evidence
tends to support self-defense, not defense of another. It
may have initiated that way, the action may have started
 18

preserved, we review the defendant's claim for prejudicial

error. See Commonwealth v. Allen, 474 Mass. 162, 168 (2016).

Defense of another is warranted if "(a) a reasonable person

in the actor's position would believe his intervention to be

necessary for the protection of the third person, and (b) in the

circumstances as that reasonable person would believe them to

be, the third person would be justified in using such force to

protect himself." Commonwealth v. Scott, 463 Mass. 561, 576

(2012), quoting Commonwealth v. Young, 461 Mass. 198, 208

(2012). "The reasonableness of the belief is from the point of

view of the actor and not of the third party, such that whether

the third party was actually entitled to use self-defense, or

believed the use of force to be necessary, is not at issue."

Scott, supra. "The actor's justification is lost if he uses

excessive force, e.g., aggressive or deadly force unwarranted

for the protective purpose." Id., quoting Commonwealth v.

Martin, 369 Mass. 640, 649 (2012).

The judge did not err in finding that the defendant was not

entitled to an instruction on the use of force in defense of

Rodriguez. Even viewing the evidence in the light most

favorable to the defendant, Scott, 463 Mass. at 577, the

evidence does not support an objective basis on which a

that way, but in terms of self-defense, the deadly force, I
think that was done."
 19

reasonable person would have believed that the defendant was

justified in using deadly force in defense of Rodriguez. The

evidence tended to show that, when the defendant stabbed the

victim, Rodriguez had left the apartment.

b. Other jury instruction issues. The defendant, for the

first time on appeal, claims error as to various portions of the

jury instructions, particularly as to flaws in the self-defense

and homicide instructions. Because the defendant did not object

to the jury instructions, we review them to determine whether

there was a substantial likelihood of a miscarriage of justice.

See Commonwealth v. Valentin, 474 Mass. 301, 305 (2016). When

reviewing jury instructions, we "evaluate the instruction as a

whole, looking for the interpretation a reasonable juror would

place on the judge's words" (citation omitted). Commonwealth v.

Young, 461 Mass. at 207. We do not consider words from the

instructions in bits and pieces or in isolation from one

another. See id. If there is an error in the jury

instructions, a new trial is called for unless we are

"substantially confident that, if the error had not been made,

the jury verdict would have been the same." Commonwealth v.

Penn, 472 Mass. 610, 626 (2015), cert. denied, 136 S. Ct. 1656

(2016), quoting Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3

(1988).
 20

i. Self-defense. The defendant takes issue with the

following instruction: "A person may not use force in self-

defense until he has availed himself of all proper means to

avoid physical combat." The defendant argues that, under the

circumstances of this case, the duty to retreat instruction

should have been limited to the time frame of the face-to-face

confrontation. The flaw was exacerbated because in closing

argument, the prosecutor asked if the defendant did "all he

could to avoid physical combat when he told [Rodriguez's

neighbor] he wasn't leaving even though they knew [the

defendant] was coming home[.]" This question, the defendant

argues, in conjunction with the instruction, created the

implication that if the defendant did not leave when he learned

that the victim was coming, he was not justified in using any

force to defend himself.

We find no error with the instruction, which tracked the

Model Jury Instructions on Homicide 55-56 (1999), and clearly

and correctly conveyed the applicable law. The judge instructed

the jurors that the Commonwealth had the burden of proving that

the defendant did not act in self-defense and that the time

frame in which the defendant must have been in fear of bodily

harm was during the altercation. Specifically, the jury were

instructed that "[t]he proper exercise of self-defense arises

from necessity and ends when necessity ends."
 21

ii. Homicide. The judge instructed the jury on murder in

the first degree (on theories of deliberate premeditation and

extreme atrocity or cruelty) and on murder in the second degree.

As to both, the judge instructed on the prerequisite that the

Commonwealth must prove malice, and on the possibility of a

justified killing in self-defense. See Model Jury Instructions

on Homicide 8, 12, 20-21 (1999). During the course of the

instructions on murder in the first and second degrees, the

judge instructed the jury three times that they are "permitted"

but not required "to infer that a person who intentionally uses

a dangerous weapon on another person is acting with malice."

The dangerous weapon instruction was also consistent with the

Model Jury Instruction on Homicide 61 (1999). The judge then

instructed the jury on voluntary manslaughter and the

circumstances that mitigate murder to manslaughter. He stated:

"Now going to move to the third form of homicide as a
lesser included offense within the charge of murder,
and that being manslaughter. In order to prove that
the defendant acted with malice, the Commonwealth must
prove beyond a reasonable doubt the absence of certain
mitigating circumstances. Mitigating circumstances
are circumstances which lessen a defendant's
culpability for an act. Both are crimes of murder,
and voluntary manslaughter requires proof of an
unlawful killing, but the killing may be the crime of
voluntary manslaughter if it occurred under mitigating
circumstances. So that if the Commonwealth cannot
prove beyond a reasonable doubt that the defendant
acted with malice, in order to obtain a conviction of
murder, the Commonwealth must prove beyond a
reasonable doubt the absence of these mitigating
circumstances. Based on the evidence of this case,
 22

mitigating circumstances you must consider are heat of
passion upon a reasonable provocation; second, heat of
passion induced by sudden combat; third, excessive
force -- excessive use of force in self-defense."
(Emphasis added to highlight variances from the Model
Jury Instruction on Homicide 27 [1999]18).

After introducing voluntary manslaughter, the judge

outlined each of the three mitigating circumstances, the absence

of which the Commonwealth had to prove. The third of those

circumstances was excessive use of force in self-defense. The

instruction as to the excessive use of force in self-defense

mitigating circumstance was as follows:

"[T]he Commonwealth has the burden of proving beyond a
reasonable doubt the absence of self-defense. If the
Commonwealth fails to prove beyond a reasonable doubt
the absence of self-defense, your verdict must be not
guilty with respect to the crimes of murder or
voluntary manslaughter. If, however, the Commonwealth
does prove excessive force in an effort to defend
himself, you'd be justified in finding the defendant
guilty of voluntary manslaughter."

18
The model jury instruction provides:

"In order to prove that the defendant acted with
malice, the Commonwealth must prove beyond a reasonable
doubt the absence of certain mitigating circumstances.
Mitigating circumstances are circumstances which lessen a
defendant's culpability for an act. Both the crimes of
murder and voluntary manslaughter require proof of an
unlawful killing, but the killing may be the crime of
voluntary manslaughter if it occurred under mitigating
circumstances so that the Commonwealth cannot prove beyond
a reasonable doubt that the defendant acted with malice.
In order to obtain a conviction of murder, the Commonwealth
must prove beyond a reasonable doubt the absence of [these]
mitigating [circumstances]" (emphasis added).

Model Jury Instructions 27 (1999).
 23

The defendant argues that errors permeated the jury

instructions and allowed the jury to convict the defendant of

murder in the first degree without considering any of the

mitigating circumstances, essentially removing manslaughter as

an option for the jury, and that such errors warrant a new

trial. We disagree.

We note first that each of the distinct jury instructions,

taken alone, were not erroneous. The use of a deadly weapon

instruction, interposed three times during the instructions on

murder in the first and second degrees, was consistent with the

model instructions both in terms of form and location. Model

Jury Instruction on Homicide 8, 12, 21, 61. We have repeatedly

approved of a similar instruction that "tells[s] the jury they

may, rather than they must, infer malice from use of a dangerous

weapon." Commonwealth v. Young, 461 Mass. at 212, and cases

cited. The deadly weapon instruction in this case, which

"permitted" but did not "require[]" the jury to infer malice

from the use of a dangerous weapon, was not erroneous.

As noted above, the general description of the manslaughter

charge varied in minor, though not insignificant, ways from the

model instruction. The sentence, "So that if the Commonwealth

cannot prove beyond a reasonable doubt that the defendant acted

with malice, in order to obtain a conviction of murder, the

Commonwealth must prove beyond a reasonable doubt the absence of
 24

these mitigating circumstances," taken alone, seems to imply

both that (1) a finding of malice would preempt the

consideration of mitigating factors and require a finding of

murder, and (2) the Commonwealth could prove murder in the first

degree without showing malice, but instead proving that there

were no mitigating circumstances. We do not, however, review

the words of an instruction in isolation from each other,

particularly where we are reviewing the instructions for a

substantial likelihood of a miscarriage of justice. See

Commonwealth v. Dyer, 460 Mass. 728, 749 (2011), cert. denied,

132 S. Ct. 2693 (2012). See also Commonwealth v. Oliveira, 445

Mass. 837, 844 (2006). Just two sentences prior, the judge

instructed, "In order to prove that the defendant acted with

malice, the Commonwealth must prove beyond a reasonable doubt

the absence of certain mitigating circumstances." The

instruction clearly delineates the proper rule: malice and

mitigating circumstances are mutually exclusive. See

Commonwealth v. Boucher, 403 Mass. 659, 661-662 (1989). And

earlier, the judge had specifically instructed that, in order to

prove murder in the first degree, "[t]he second element the

Commonwealth must prove beyond a reasonable doubt is that the

killing was committed with malice." The jury were instructed

that the absence of mitigating circumstances alone does not

warrant the return of a verdict of murder in the first degree.
 25

The use of excessive force in self-defense instruction was

consistent with the Model Jury Instruction on Homicide 30-31,

and is substantially similar to the instructions given in

Commonwealth v. Britt, 465 Mass. 87, 96 (2013), and Commonwealth

v. Bolling, 462 Mass. 440, 448 (2012). As in the present case,

the defendants in those cases argued that the use of the

permissive phrase "would be justified," as opposed to the

mandatory "must," gave the jury the erroneous impression that,

even if they found excessive use of force in self-defense,

murder was still a possible verdict. See Britt, supra; Bolling,

supra. We conclude, as we did in those cases, that the

instruction in the present case, considered in its entirety, was

not erroneous. See Britt, supra; Bolling, supra.

Finally, the instruction that the jury must convict the

defendant of the most serious crime proved beyond a reasonable

doubt was consistent with the model instruction and was not

erroneous. See Model Jury Instructions on Homicide 65-66

(1999). We are also convinced that, taken as a whole, the

instructions, although flawed, were not erroneous.19,20 In the

19
Because we conclude that the jury instructions were not
erroneous, there is also no merit to the defendant's claim of
ineffective assistance of counsel predicated on defense
counsel's failure to object to these instructions.
20
The defendant also cites to Commonwealth v. Barnacle, 134
Mass. 215, 216 (1883), for the proposition that the jury were
not instructed that the victim need not be armed in order for
 26

future, we urge judges to follow the model jury instructions

verbatim to avoid such flaws and ensure a smooth recitation of

the jury charge.

4. Hearsay testimony. As part of the Commonwealth's case,

the prosecutor elicited testimony from Rodriguez concerning an

occasion in which she had shown the defendant one of the

victim's handguns. When the defendant handled the handgun, he

did so through his shirt. The prosecutor asked Rodriguez if the

defendant indicated why he was holding the gun in that manner.

Rodriguez, after first testifying that the defendant did not

explain why he was doing so, reviewed her police statement and

confirmed that she had told police that the defendant was

holding the handgun in that manner in order to avoid getting

fingerprints on the gun. The defendant objected various times

during the line of questioning, and we assume, without deciding,

that he did so when the Commonwealth elicited Rodriguez's

testimony about her police statement. On appeal, the defendant

the defendant's use of deadly force to be justified. The record
does not support this argument; the judge specifically
instructed the jury:

"In considering the issue of reasonableness of any
force used by the defendant, you may consider evidence of
the relevant physical capabilities of the combatants, how
many persons were involved on each side, the
characteristics of any weapons used, the availability of
rooms to maneuver, or any other factors you deem relevant
to the reasonableness of the defendant's conduct under the
circumstances."
 27

claims that the testimony was impermissible hearsay and that it

was a gratuitous attack on the defendant's character.

There was no error. The evidence was relevant to explain

how the defendant was able to describe one of the defendant's

guns. Moreover, the testimony was not hearsay, see Commonwealth

v. Cole, 473 Mass. 317, 324-325 (2015) (extrajudicial statements

by party opponent are not hearsay); Mass. G. Evid.

§ 801(d)(2)(A) (2016).

5. Motion for a new trial. In his motion for a new trial,

the defendant argued that (1) his due process rights were

violated when the trial judge did not appoint a qualified

Spanish interpreter for Rodriguez; (2) his right to a public

trial was violated when the court room was closed during jury

selection; (3) he received ineffective assistance of counsel;

and (4) there was newly discovered evidence that might have

affected the outcome of his trial.21 The motion judge (who was

not the trial judge) denied the motion.

"The decision to allow a motion for a new trial lies within

the sound discretion of the judge and will not be reversed

unless it is manifestly unjust or unless the trial was infected

with prejudicial constitutional error" (citation

omitted). Commonwealth v. Gorham, 472 Mass. 112, 117 (2015).

21
The defendant also raised the suppression issue as a
ground warranting a new trial. The motion judge found that this
claim was waived as time barred.
 28

Where an appeal from the denial of the defendant's motion for

a new trial has been consolidated with his direct appeal from a

conviction of murder in the first degree, we review both under

G. L. c. 278, § 33E. See Espada, 450 Mass. at 697. Pursuant to

G. L. c. 278, § 33E, we review the denial of the motion for a

new trial "to determine whether there has been a significant

error of law or other abuse of discretion, . . . and whether any

such error creates a substantial likelihood of a miscarriage of

justice" (quotations and citations omitted). Commonwealth v.

Lally, 473 Mass. 693, 698 (2016).

a. Interpreter. Rodriguez, a native Spanish speaker,

testified almost entirely in English.22,23 At one point during

direct examination, defense counsel requested that the court

inquire as to whether Rodriguez would like the assistance of an

interpreter. The judge determined that Rodriguez was not

"showing so much difficulty with the language that she needs an

interpreter."24 Instead, an interpreter was put on stand-by for

22
Rodriguez also testified in English before the grand
jury, and her police statements were in English (although they
were made with the assistance of Spanish-speaking police
officers). The first of those statements specifically indicated
that Rodriguez "read[s], write[s] and understand[s] English."
23
During their deliberation, the jury requested a
transcript of Rodriguez's testimony; the request was denied.
24
The judge also sustained several objections to leading
questions posed by the prosecutor, noting at one point that "the
witness hasn't demonstrated any need for prompts." When the
 29

the following day. When cross-examination began, the

interpreter was made available to Rodriguez, the questions were

posed to her in English, and she was allowed to use the

interpreter's assistance as necessary.25 During the course of

cross-examination, the interpreter assisted only on two

instances. The defendant argues that the trial judge's refusal

to allow Rodriguez to testify on cross-examination through an

interpreter restricted his right to present a full defense, in

violation of the Sixth Amendment to the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights.

By statute, "[a] non-English speaker . . . shall have a

right to the assistance of a qualified interpreter who shall be

appointed by the judge." G. L. c. 221C, § 2. "Non-English

speaker" is defined as "a person who cannot speak or understand,

or has difficulty in speaking or understanding, the English

language, because he uses only or primarily a spoken language

other than English." G. L. c. 221C, § 1. The party claiming a

violation of G. L. c. 221C, § 2, bears the burden of proving

issue was raised the following day at trial, the judge indicated
that "[Rodriguez's] direct demeanor, to me, did not demonstrate
a lot of difficulty understanding English."
25
Defense counsel inquired whether Rodriguez wanted the
assistance of an interpreter, and Rodriguez indicated that she
did. Rodriguez also indicated that she had some trouble
understanding some of the questions on direct examination.
 30

that the witness in question was a "non-English speaker." See

Crivello v. All-Pak Mach. Sys., Inc., 446 Mass. 729, 735 (2006).

When the issue was raised as part of the defendant's motion

for a new trial, the motion judge conducted an evidentiary

hearing, at which the defendant called Dr. Michael O'Laughlin, a

certified court interpreter and the director of interpreter

training at Boston University. O'Laughlin reviewed Rodriguez's

testimony at trial and before the grand jury, her statements to

police, and an interview conducted by appellate counsel; he also

conducted two independent standardized tests of Rodriguez's

language skills in order to assess whether Rodriguez qualified

as a non-English speaker.

O'Laughlin concluded that Rodriguez is a limited English

proficient speaker, and that her English proficiency, when

measured by standardized scores, is "intermediate high."

According to the results of that test, Rodriguez "[c]an satisfy

survival needs and routine work and social demands [and] handle

work that involves following oral and simple written

instructions in familiar and some unfamiliar situations. . . .

As to listening comprehension, [she] understands conversations

on most everyday subjects at normal speed when addressed

directly, [but m]ay need repetition, rewording and slower

speech. . . . [A]s to oral communication [she] [f]unctions

independently in survival and many social and work situations
 31

but may need help occasionally." O'Laughlin indicated that

Rodriguez's English language skills "would be that of a middle

school student," and that testifying at trial requires a level

of English proficiency at a high school graduate level.

The Commonwealth elicited testimony regarding Rodriguez's

language skills from Shannon Driskell, a longtime friend of the

victim who was a bridesmaid at Rodriguez's wedding to the

victim. Driskell, whose testimony was credited by the motion

judge, observed Rodriguez speaking English on a regular basis.

On those occasions, Rodriguez spoke only English with her

children and the victim. Rodriguez would communicate with

Driskell on the Internet social networking site Facebook using

English. Driskell testified that she did not have difficulty in

communicating with Rodriguez in English.

The motion judge concluded that Rodriguez did not fit the

definition of a "non-English speaker" in need of the assistance

of an interpreter and that, even if she had been so designated,

the qualified interpreter who was made available to her on

cross-examination was sufficient to satisfy the assistance

necessary under G. L. c. 221C. We agree.26

26
At the time of the incident, the witness spoke to her
family in English and held a job as a certified nurse's
assistant, in which she conducted her responsibilities using
English.
 32

b. Court room closure. The defendant claims that his

Sixth Amendment right to a public trial was violated because his

family and friends were excluded from jury selection. The

motion judge declined to hold an evidentiary hearing on this

basis, and he denied the defendant's motion outright.

The right to a public trial guaranteed by the Sixth

Amendment extends to the jury selection process, and it is a

well-settled principle that a properly preserved violation of

that right is structural error requiring reversal. See Penn,

472 Mass. at 622. However, "even structural error is subject to

waiver," Commonwealth v. Celester, 473 Mass. 553, 578 (2016),

and "[w]here counsel fails to lodge a timely objection to the

closure of the court room -- as happened in this case -- 'the

defendant's claim of error is deemed to be procedurally

waived.'" Penn, supra at 622, quoting Commonwealth v. LaChance,

469 Mass. 854, 857 (2014), cert. denied, 136 S. Ct. 317 (2015).

Such waiver need not be consented to by the defendant. See

Commonwealth v. Wall, 469 Mass. 652, 672 (2014).

The uncontroverted evidence tends to show that the court

room was closed during jury selection. It also shows that trial

counsel was aware of the court room closure prior to jury

selection, and did not object.27 The court room closure claim is

27
The defendant's motion for a new trial was accompanied by
affidavits from the defendant's mother and sister. Both
 33

therefore procedurally waived. Penn, 472 Mass. at 622, quoting

LaChance, 469 Mass. at 857.

However, where the defendant's Sixth Amendment right to a

public trial has been subject to procedural waiver, the

defendant after conviction may still make a collateral attack on

the issue based on ineffective assistance of counsel for failure

to object to the court room closure. See Penn, 472 Mass. at

623. See also LaChance, 462 Mass. at 858. The defendant must

not only make a showing that his attorney was deficient for

failing to make a timely objection but also "show that a

substantial likelihood of a miscarriage of justice arose from

the court room closure." Penn, supra ("The structural nature of

the underlying error does not automatically excuse the defendant

from showing prejudice when advancing an unpreserved claim"

[citation omitted]). See LaChance, supra at 857. The defendant

has not proffered any substantive grounds on which the closure

of the court room during jury selection would have resulted in

any effect on the judgment in the case, and therefore failed to

show prejudice arising from counsel's failure to object.28,29

affidavits aver to the fact that trial counsel was the one who
informed them of the court room closure.
28
The defendant argues that he was prejudiced because trial
counsel's failure to object to the closure of the court room has
resulted in a less favorable standard of review. This alone
does not create a substantial risk of a miscarriage of justice.
See, e.g., Commonwealth v. Penn, 472 Mass. 610, 623 (2015),
 34

c. Ineffective assistance of counsel. We review the

defendant's ineffective assistance of counsel claims, brought as

part of an appeal from a conviction of murder in the first

degree, under the substantial likelihood of a miscarriage of

justice standard, pursuant to § 33E. See Commonwealth v.

Lessieur, 472 Mass. 317, 326, cert. denied, 136 S. Ct. 418

(2015). "We consider whether there was an error in the course

of the trial (by defense counsel, the prosecutor, or the judge)

and, if there was, whether that error was likely to have

influenced the jury's conclusion" (quotations and citation

omitted). Id. at 327. The defendant bears the burden of

cert. denied, 136 S. Ct. 1656 (2016); Commonwealth v. Jackson,
471 Mass. 262, 269 (2015), cert. denied, 136 S. Ct. 1158 (2016).
29
The motion judge's decision to deny the defendant's
motion for a new trial without first holding an evidentiary
hearing on the court room closure issue was not erroneous. In
adjudicating arguments made as part of a motion for a new trial,
the motion judge "may rule on the issue or issues presented by
such motion on the basis of the facts alleged in the affidavits
without further hearing if no substantial issue is raised by the
motion or affidavits." Commonwealth v. Drayton, 473 Mass. 23,
31 (2015), quoting Mass. R. Crim. P. 30 (c), as appearing in 435
Mass. 1501 (2001). On the other hand, "[w]hen a substantial
issue has been raised, and supported by a substantial
evidentiary showing . . . the judge should hold an evidentiary
hearing" (citation omitted). Id. The motion judge effectively
assumed the validity of the affidavits attached to the
defendant's motion for a new trial, and still (without error)
denied the motion. See Penn, 472 Mass. at 622, where an
evidentiary hearing was conducted concerning a court room
closure issue and uncovered similar evidence as was assumed by
the motion judge in the present case. The decision to abstain
from holding an evidentiary hearing was appropriate.
 35

proving that trial counsel was ineffective. See Commonwealth v.

Alcequiecz, 465 Mass. 557, 563 (2013).30

The defendant argues that trial counsel was ineffective for

failing to (i) properly prepare defense expert witness, a

forensic pathologist, for voir dire examination; (ii) object to

the prosecutor's alleged misstatement of the law of self-defense

during closing argument; and (iii) elicit testimony from

Rodriguez that the victim was using a forearm on the defendant's

throat to hold him down.31,32 The defendant has not satisfied his

burden to prove ineffective assistance of counsel as to any of

his claims. See id.

30
The defendant's claims of ineffective assistance of
counsel are not supported by an affidavit from lead counsel at
trial, but did include one from co-counsel. As a result, we
must rely only on the record as to whether there was a strategic
purpose behind some of counsel's decisions. We keep in mind
that "[r]elief on a claim of ineffective assistance based on the
trial record is the weakest form of such a claim because it is
'bereft of any explanation by trial counsel for his actions and
suggestive of strategy contrived by a defendant viewing the case
with hindsight.'" Commonwealth v. Gorham, 472 Mass. 112, 116
n.4 (2015), quoting Commonwealth v. Peloquin, 437 Mass. 204, 210
n.5 (2002).
31
As mentioned above, the motion judge did not err in
denying the defendant's ineffective assistance claims regarding
the G. L. c. 276, § 33A, telephone rights and the failure to
object to the jury instructions on self-defense and excessive
force in self-defense issues.
32
Applying the standard set forth in Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974), the motion judge denied the
motion as to all the claims of ineffective assistance.
 36

a. Failure to prepare expert witness. Prior to

testifying, the expert was subjected to voir dire examination as

to his qualifications and bases to testify on certain subjects.

The judge concluded, based on the voir dire examination, that

the expert would not be allowed to testify as to his opinion

that (1) the lack of clustering of the stab wounds indicated

defensive action on the part of the defendant; and (2) the blood

stains on the floor indicated that the defendant was retreating

from the victim or the victim was chasing the defendant. The

judge determined that an opinion whether the lack of clustering

was indicative of self-defense was inadmissible because "[t]he

jury [do] not need to hear it from the expert. They can draw

that same conclusion if it's to be drawn." The same was true as

to the proposed chasing and retreating testimony, which was "not

within the expertise of the proposed witness." The expert was

allowed to testify to the positioning, trajectory, and lack of

clustering of the stab wounds, and the positioning of the blood

stains, but not to the conclusions he drew from those facts.

The defendant objected to the expert's testimony being so

limited.

Before the jury, the expert testified that it was his

opinion that the victim's wounds were likely inflicted when the

victim and defendant were "face-to-face." He further opined

that there was "no clustering of stab wounds on [the victim],"
 37

and that such a lack of clustering "reflects the nature of the

activity used to cause or create those stab wounds that results

in the cluster," such that it was inconsistent with "somebody

holding a knife and repetitively thrusting it in approximately

the same location of the body." He also testified regarding the

fact that the wounds were inflicted in different areas of the

apartment, causing blood to pool on various surfaces in the

room. From that testimony, the defense attorney argued as part

of his closing that the lack of clustering and the positioning

of the blood stains indicated that the parties were moving

around during the altercation, and suggested that these were

indications that there was not an intent to kill.

"The purpose of expert testimony is to assist the trier of

fact in understanding evidence or determining facts in areas

where scientific, technical, or other specialized knowledge

would be helpful." See Commonwealth v. Pytou Heang, 458 Mass.

827, 844 (2011). "Expert testimony is admissible when it will

'help jurors interpret evidence that lies outside of common

experience.'" Commonwealth v. Scott, 464 Mass. 355, 360 n.5

(2013), quoting Commonwealth v. Tanner, 45 Mass. App. Ct. 576,

581 (1998). See Mass. G. Evid. § 702 (2016). "A judge has wide

discretion in qualifying a witness to offer an expert opinion on

a particular question, . . . and [the judge's] determination
 38

will not be upset on appeal if any reasonable basis appears for

it" (citations omitted). Pytou Heang, supra at 845.

There are two distinct reasons that convince us that trial

counsel was not ineffective in failing to further prepare the

expert. First, it was not a lack of qualifications that

resulted in two of the expert's conclusions being excluded;

instead, it was the fact that the evidence he sought to proffer

was within the purview of the jury, and would not have "help[ed]

jurors interpret [the] evidence." Scott, 464 Mass. at 360 n.5.

Second, whether trial counsel erred is irrelevant; the areas of

testimony to which the expert proposed in his affidavit that he

would testify if given another chance would either still be

inadmissible or be cumulative of other evidence offered at trial

by that expert or by the Commonwealth's expert. Even assuming

that counsel failed to adequately prepare his expert for voir

dire examination, the defendant has not met his burden of

proving that such a failure would have "influenced the jury's

conclusion" (citation omitted). Lessieur, 472 Mass. at 327.

See Alcequiecz, 465 Mass. at 563.

ii. Failure to object to Commonwealth's closing argument.

The defendant argues that trial counsel's failure to object to

the Commonwealth's closing argument -- which he claims misstated

and distorted the law on self-defense and was not fairly

supported by the evidence -- constitutes ineffective assistance
 39

of counsel.33 Because the defendant did not object to the

closing argument at trial, we review it to determine if any

error in failing to object would have created a substantial

likelihood of a miscarriage of justice. Commonwealth v.

Wright, 411 Mass. 678, 681 (1992), S.C., 469 Mass. 447 (2014).

Under that standard, we assess the closing argument "in the

context of the entire argument, and in light of the judge's

instructions to the jury and the evidence at trial" (citation

omitted). Commonwealth v. Carriere, 470 Mass. 1, 19 (2015).

In its closing argument, the Commonwealth argued that the

defendant had "ambush[ed]" the victim, rather than acted in

self-defense.34 The prosecutor later stated:

"The law recognizes there may be circumstances where
someone can defend themselves with a deadly weapon.
First, you must avail yourself of all means to avoid
physical combat. For example, leave through the front
door or back door if you can. . . . Did [the
defendant] do all he could to avoid physical combat
when he told [Rodriguez's neighbor] he wasn't leaving
even though they knew [the victim] was coming home?"
(emphasis added).

Although the emphasized sentence in the Commonwealth's

closing argument was flawed, neither the argument taken as a

33
The defendant does not specify in his brief which portion
or portions of the Commonwealth's closing argument misstated the
law, or how such portion or portions had misstated the law.
34
The prosecutor argued: "Isn't it far more believable
that . . . [the defendant] was waiting for [the victim] to come
in that door and able to ambush him when he came through the
door with this knife he had on a dresser in that bedroom[?]";
and "[The victim] got ambushed."
 40

whole nor trial counsel's failure to object to that argument

created a substantial likelihood of a miscarriage of justice.

See id. The single sentence of the Commonwealth's closing

argument that indicated that the defendant did not do all he

could to avoid physical combat because he had, hours before the

altercation, told Rodriguez's neighbor he would not leave the

home carried with it an implication that the defendant's actions

prior to the time of the purported self-defense should be part

of the jury's consideration. However, the rest of the

prosecutor's argument concerning self-defense focused on the

altercation itself. It is apparent that the jury were not

convinced by the prosecutor's premeditation argument, as the

charge of murder in the first degree on the theory of deliberate

premeditation was rejected. To the extent that the argument may

have had any effect on the jury's apparent refusal to recognize

that the victim initiated the assault, our reduction of the

verdict from murder in the first degree to voluntary

manslaughter addresses that concern. See part 6, infra.

iii. Failure to elicit testimony. Finally, the defendant

argues that trial counsel was ineffective because he failed to

elicit testimony from Rodriguez that the victim was holding the

defendant down, using a forearm as a bar across his throat. As

mentioned, Rodriguez gave two statements to police. Only the

second statement indicated that, after the victim came into the
 41

house and the altercation began between the victim and the

defendant, she "could see [the victim] on top of [the defendant]

holding [the defendant] down with his left forearm, by his

neck."

The defendant has not met his burden of showing that better

representation would have influenced the jury's conclusion. See

Alcequiecz, 465 Mass. at 563. At trial, Rodriguez testified

that the victim, who was much larger than the defendant, picked

up the defendant, threw him against the air conditioner, and was

on top of him. She also specified that the victim had his hand

on top of the defendant, and that the defendant could not have

gotten away from the victim. Although eliciting a more specific

placement of the victim's hand on the defendant's throat may

have bolstered his claim that he was in fear of his life, it

would have been cumulative of the evidence already offered by

Rodriguez. Further, based on the record, it was not manifestly

unreasonable for trial counsel to avoid references to

Rodriguez's second police statement, given that it included

several potentially inculpatory statements purportedly made by

the defendant.35 See Commonwealth v. Riley, 467 Mass. 799, 808

(2014).

35
For example, Rodriguez told police that the defendant had
told her that if the victim ever came to the apartment, he, the
defendant, would stab the victim.
 42

d. Newly discovered evidence. The defendant moved for a

new trial on the basis of newly discovered evidence in the form

of an opinion from a psychologist who, according to his

affidavit, specializes in combat-related treatment. The

defendant sought testimony from the psychologist concerning the

effects that a forearm across someone's throat might cause.

Specifically, he would have testified that such forearm pressure

to the throat can cause an adversary to lose consciousness and

would put an adversary in reasonable fear that he was in

immediate danger of being killed or seriously injured.

The motion judge was entitled to make a ruling on the

defendant's motion on this ground without an evidentiary

hearing. See Commonwealth v. Drayton, 473 Mass. 23, 32 (2015),

quoting Mass. R. Crim. P. 30 (c), as appearing in 435 Mass. 1501

(2001) (only "substantial" issue warrants evidentiary hearing).

To prevail on a motion for a new trial on this ground, "[f]irst,

the defendant must establish that the evidence is 'newly

available,' [and,] [s]econd, the defendant must show that the

evidence 'casts real doubt on the justice of the conviction'"

(citations omitted). Commonwealth v. Cameron, 473 Mass. 100,

104 (2014). See Commonwealth v. Grace, 397 Mass. 303, 305

(1986).

The defendant has not met his burden of establishing that

the proposed testimony is newly available. Commonwealth v.
 43

Sullivan, 469 Mass. 340, 350 n.6 (2014) ("Newly available

evidence is evidence that was unavailable at the time of trial

for a reason such as . . . a particular forensic testing

methodology had not yet been developed or gained acceptance by

the courts"). The defendant offers no argument that the

testimony that would have been offered by the psychologist at an

evidentiary hearing could not have been uncovered by the defense

at the time of trial. There was therefore no "substantial"

issue that required the motion judge to hold an evidentiary

hearing. The motion for a new trial was properly denied.36

6. Review under G. L. c. 278, § 33E. The defendant

requests that we exercise our extraordinary authority under

G. L. c. 278, § 33E, to order a new trial or reduce the verdict

of murder in the first degree to voluntary manslaughter. "Our

duty under G. L. c. 278, § 33E, is to consider broadly the whole

36
We are also not convinced (though we need not decide)
that the psychologist's testimony would have been admitted even
if offered at trial. The jury heard testimony that the
defendant reasonably feared that the victim would kill him, as
adduced from their differences in size and physical strengths.
A fellow member of the National Guard testified that the victim
was trained in unarmed combat and that he could incapacitate or
kill another person. Rodriguez testified that the defendant was
pinned down by the larger victim. And the defendant himself
told the police that he "had no choice" but to attack the
victim, and that he did so in self-defense. The psychologist's
testimony, if offered at the time of trial, may have been
cumulative of other testimony, and does not "cast real doubt on
the justice of the conviction." Commonwealth v. Cameron, 473
Mass. 100, 104 (2015), quoting Commonwealth v. Grace, 397 Mass.
303, 305 (1986).
 44

case on the law and the facts to determine whether the verdict

is consonant with justice" (quotations and citation omitted).

Commonwealth v. Howard, 469 Mass. 721, 747 (2014). On such

consideration, we "may, if satisfied that the verdict was

against the law or the weight of the evidence, or because of

newly discovered evidence, or for any other reason that justice

may require (a) order a new trial or (b) direct the entry of a

verdict of a lesser degree of guilt." G. L. c. 278, § 33E. See

Commonwealth v. Baker, 346 Mass. 107, 109 (1963) ("If upon our

examination of the facts, we should, in our discretion, be of

opinion that there was a miscarriage of justice in convicting

the defendant of murder in the first degree, and that a verdict

of guilty of murder in the second degree or of manslaughter

would have been more consonant with justice, it is now our power

and duty to so declare"). "Each case depends on its peculiar

facts. No one fact is conclusive. A most important

consideration is whether the jury verdict is markedly

inconsistent with verdicts returned in similar cases" (citation

omitted). Commonwealth v. Colleran, 452 Mass. 417, 432 (2008).

There are a number of factors we have considered in similar

cases in mitigating a verdict of murder in the first degree

under § 33E:

"Those factors include: whether the intent to kill
was formed 'in the heat of sudden affray or combat,'
[Baker, 346 Mass. at 119]; whether the homicide occurred in
 45

the course of a 'senseless brawl,' Commonwealth v.
Ransom, 358 Mass. 580, 583 (1971); whether 'a minor
controversy . . . explode[d] into the killing of a human
being,' [Baker], supra at 110; whether '[t]he entire
sequence reflects spontaneity rather than premeditation,'
Commonwealth v. Williams, [364 Mass. 145, 152
(1973)]; whether the defendant carried a weapon to the
scene, id., or left the scene after an initial
confrontation and returned with a weapon to kill the
victim, Commonwealth v. Jones, 366 Mass. 805, 809 (1975);
whether the victim was the first aggressor, [Baker],
supra at 118; whether the defendant and the victim were
strangers, [Ransom], supra at 583, or, if only
acquaintances, whether there had been prior trouble between
them, [Jones], supra at 808; whether the defendant and the
victim had enjoyed a good relationship prior to the
killing, Commonwealth v. Seit, 373 Mass. 83, 94 (1977);
whether alcohol or drugs were involved, [Ransom], supra at
583; the personal characteristics of the defendant, such as
age, Commonwealth v. McDermott, 393 Mass. 451, 460–461
(1984) (seventeen years old), [Jones], supra at 808
(twenty-eight years old); family, id. (married with six
small children); hard working, [Seit], supra at 95;
disability, Commonwealth v. Vanderpool, 367 Mass. 743, 750
(1975); and lack of prior criminal record, [Jones], supra."

Colleran, supra at 431-432. Most recently, in reducing a

verdict from murder in the first degree to voluntary

manslaughter, we principally considered the particulars of the

fight that led to the victim's death. See Commonwealth v.

Niemic, 472 Mass. 665, 679 (2015).

In Jones, 366 Mass. at 805, the defendant was convicted of

murder in the second degree on an indictment charging murder in

the first degree. The defendant had fatally stabbed the victim

after an altercation. Id. at 807. That day, the defendant and

the victim had done a considerable amount of drinking. Id. The

two had gotten into an argument earlier in the day, and their
 46

paths crossed again hours later. Id. The argument resumed, the

victim "struck the defendant with a heavy blow on the jaw," and

the defendant retaliated with his knife. Id. At trial, the

defendant testified that he used his knife in self-defense

because the victim had come at him with a straight edge razor.

Id. We were not convinced that the fatal wound was inflicted in

the appropriate exercise of self-defense, but still acknowledged

that the defendant "was reasonably apprehensive that the victim

might use the razor which the defendant knew the victim

possessed," due to the victim's reputation. Id. at 808-809. We

reduced the verdict from murder in the second degree to

manslaughter because of the absence of malice. Id. at 808. We

concluded that the fatal attack was "senseless, undoubtedly the

result of too much drinking," and that the intention to attack

was "formed in the heat of sudden affray or combat, . . . thus

negating the necessary element of malice" (citations omitted).

Id. at 808-809.

There are many factors in the present case that convince us

that a reduction is warranted. The jury rejected the theory of

deliberate premeditation, meaning that it focused its inquiry

exclusively on the altercation itself. There was evidence that

the victim was the initial aggressor;, that the defendant

reasonably could have been and was fearful of the victim, who

was much larger, trained in unarmed combat, and enraged; and
 47

that the defendant swung the knife in a wild manner. Moreover,

prior to using the knife in self-defense, the defendant told

Rodriguez to telephone 911. After the altercation, he gave a

full statement to police and never contested his involvement in

the victim's death. The sequence that led to the killing

indicates spontaneity, and reflects that the killing was more

the product of sudden combat and the heat of passion than of

malice. See Jones, 366 Mass. at 809.

It is our conclusion that the jury relied on a confluence

of factors, including a complicated set of instructions, in

reaching their verdict, which, taken together, may have produced

a result not consonant with justice. Voluntary manslaughter due

to mitigating circumstances shares several of the factors

delineated by the judge as to a finding of murder in the first

degree on the theory of extreme atrocity or cruelty.37 See

Commonwealth v. Berry, 466 Mass. 763, 776 (2014) (Gants, J.,

concurring) ("If the jury were to rest their finding of extreme

37
The judge instructed on the following factors to be
considered by the jury in determining whether the defendant was
guilty of murder in the first degree: "One, whether the
defendant was indifferent to or took pleasure in the suffering
of the deceased; two, the consciousness and degree of suffering
of the deceased; three, the extent of the injuries to the
deceased; four, the number of blows delivered; five, the manner,
degree and severity of the force used; six, the nature of the
weapon, instrument or method used; and seven, the disproportion
between the means needed to cause death and those employed").
The third, fourth, fifth, sixth, and seventh factors could also
be indicative of voluntary manslaughter if the jury did not find
malice.
 48

atrocity or cruelty on any but the first Cunneen factor, [see

Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983),] the jury

need not focus on the defendant's state of mind. Consequently,

a defendant may be found guilty of murder in the first degree

with extreme atrocity or cruelty where the defendant did not

intend that victim suffer before he died but nonetheless did

suffer an agonizing death"). The evidence appears overwhelming

that the Commonwealth failed to meet its burden in proving the

absence of mitigating circumstances beyond a reasonable doubt

and, for this reason, we are concerned that the prosecutor's

closing argument regarding lying in wait and the judge's failure

to address this possibility in the jury instructions may have

led the jury astray.

Like the fight in Jones, 366 Mass. at 807, the altercation

in the present case was a senseless brawl. The defendant,

through no malicious actions of his own, found himself in a

relationship with a woman whose estranged husband had violent

tendencies and was trained to kill. The weight of the evidence

supports the conclusion that the defendant killed the victim

either as the result of reasonable provocation or through the

use of excessive force in self-defense. Under either

circumstance, the killing was the result of uncontrolled violent

action on the part of the defendant and the victim. Because of

the unusual circumstances of this case, and the fact that it
 49

presents multiple factors we have considered in the past when

exercising our power under § 33E, a conviction of voluntary

manslaughter is more consonant with justice, and we exercise our

extraordinary authority under § 33E to reduce the verdict. See

Niemic, 472 Mass. at 679; Jones, 366 Mass. at 809-810.38

The case is remanded to the Superior Court, where the

verdict of murder in the first degree and sentence imposed shall

be vacated. A verdict of guilty of voluntary manslaughter shall

be entered and a sentence imposed.

So ordered.

38
In his closing argument, the prosecutor acknowledged that
the evidence at trial, at a minimum, proved that the defendant
used excessive force in self-defense, and that the jury would be
warranted in returning a guilty verdict as to voluntary
manslaughter.