Commonwealth v. Almeida

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SJC-12179

COMMONWEALTH vs. MARCELO ALMEIDA.

Plymouth. January 9, 2018. - May 17, 2018.

Present: Gants, C.J., Budd, Cypher, & Kafker, JJ.

Homicide. Evidence, Prior misconduct, Prior inconsistent
statement, Consciousness of guilt. Practice, Criminal,
Capital case, Argument by prosecutor, Instructions to jury.

Indictment found and returned in the Superior Court
Department on December 19, 2011.

The case was tried before Thomas F. McGuire, Jr., J.

Amy M. Belger for the defendant.
Audrey Anderson, Assistant District Attorney, for the
Commonwealth.

KAFKER, J. The defendant, Marcelo Almeida, stabbed the

victim numerous times with a knife, causing her death. After a

jury trial, the defendant was convicted of murder in the first

degree on the theories of deliberate premeditation and extreme

atrocity or cruelty.

In his appeal, the defendant claims that reversal of his
 2

conviction is required because the judge erred by (1) allowing

evidence of a prior bad act in which the defendant waited

outside the victim's bathroom with a knife and later stated that

he would have killed her if she opened the door; (2) permitting

the prosecutor to comment in her closing argument on omissions

in the defendant's statement to a police officer, which the

defendant contends were not inconsistent with the defendant's

trial testimony and were caused by the officer's statements that

he should discontinue speaking with police officers; and (3)

failing to provide sua sponte a jury instruction addressing the

omissions, and providing, over the defendant's objection, a

consciousness of guilt instruction. For the reasons stated

below, we conclude that the trial judge did not err. After a

thorough review of the record, we also decline to exercise our

authority under G. L. c. 278, § 33E, to reduce or set aside the

verdict of murder in the first degree. Therefore, we affirm the

defendant's conviction.

Background. We summarize the facts that the jury could

have found, reserving certain details for discussion of the

legal issues.

The defendant and victim were involved in a relationship

together. Both came to the United States from Brazil and lived

with a mutual friend, Lucas Ferreira, in an apartment in

Marshfield. The defendant and victim also had a child together,
 3

who lived in Brazil with the child's grandmother.

In the summer of 2011, trouble within the relationship

escalated as the defendant and the victim fought verbally on

numerous occasions. In July, 2011, while living with the

defendant, the victim and the defendant engaged in a fight that

resulted in the victim locking herself in the apartment

bathroom. The defendant then knocked on the door and banged his

head against a wall, telling the victim to open the door. After

this incident, the victim left the defendant's apartment and

moved into her aunt's house. The next day, the defendant

telephoned a mutual friend and said, "[T]hank God [the victim]

didn't open the door because I would have kill[ed] her because I

had a knife in my hand." The defendant also told another mutual

friend about the incident, stating that when the victim was in

the bathroom, he "took a knife" and "was going to kill her."

In late July and August, 2011, while the victim was living

with her aunt, the defendant repeatedly telephoned the victim,

asking the victim to move back into his apartment. In one

telephone call with the victim, the aunt overheard, on

speakerphone, the defendant say that if the victim did not

return, he "would kill her" and her mother and their son in

Brazil. In another telephone call directly to the aunt, the

defendant said "he wanted [the victim] to return, and if she

didn't return, he would kill her."
 4

In late August, 2011, after living with her aunt for

approximately three weeks, the victim moved back into the

defendant's apartment. Approximately two weeks later, the

defendant and victim had another argument during which the

defendant took the victim's belongings, threw them into the

living room of the apartment, and told the victim to leave,

stating that "he didn't want her anymore."

Following this argument, the victim once again moved out of

the defendant's apartment and moved into her friend's apartment,

which was located downstairs in the same apartment building.

While the victim was moving into her friend's apartment, the

defendant saw the victim and called her names including "snake"

and "prostitute."

After the victim's move, the defendant continued to contact

the victim every day, often calling the victim on the telephone

more than ten times a day. Sometimes the victim would answer;

most of the time she did not. During this time, the defendant

frequently telephoned mutual friends, as well as the victim's

mother, who still lived in Brazil. In one of the telephone

calls to the victim's mother, the defendant threatened to kill

the victim, stating that he "was going to buy a gun to kill

her," but then that he would kill her with a knife. Despite

these statements, the defendant repeatedly tried to convince the

victim and others that he loved the victim and wanted the victim
 5

to move back in with him.

On the Saturday before the victim's death, which was

approximately three weeks after the victim moved into her

friend's apartment, the defendant invited the victim to go to a

rodeo with him, but the victim declined. The next day, Sunday,

September 25, the defendant saw the victim at a friend's house

and again asked if she would attend the rodeo with him. The

victim told the defendant to "go on with his life" and that

their relationship "would not work out." That day, the victim

went to the rodeo with two other men.

The defendant remained at the friend's house, where he

consumed more than twelve beers. Additionally, the defendant

testified that he consumed cocaine that night for the first

time. While at the house, the defendant went outside with his

housemate, Ferreira, and explained that the victim had lied to

him about going to the rodeo. The defendant then told Ferreira

that he was "going to do something crazy" and that "he felt like

killing [the victim]," repeating this statement more than once.

The defendant also stated that "what he was going to do, not

even his own mother would forgive him" and that "he knew that he

would never see his son and that his family [would] never

forgive him." In response, Ferreira said that "there was no

need for [the defendant] to do that, he had a beautiful son,

that [the victim] is from a good family." The defendant replied
 6

that he "could not promise." At trial, Ferreira testified that

he had no difficulty in understanding the defendant, and that

the defendant appeared agitated, sad, and "pissed off."

That same afternoon, the defendant made a telephone call to

a mutual friend of the victim, telling the friend, "Thank you

very much. Thank you for everything. Thank you very much for

everything. I'm sorry. Thank you and I'm sorry." On hearing

this statement from the defendant, the friend tried telephoning

the victim five times, but she was unsuccessful.

Later that evening, the defendant attempted to find the

victim and speak with her. Unable to find the victim, the

defendant telephoned the victim 232 times throughout the night,

but never spoke to her.

The next day, Monday, September 26, the defendant saw the

victim at the apartment building. As the victim was leaving for

work, the defendant stabbed the victim eleven times, causing the

victim's death. An autopsy of the victim revealed that the

victim suffered numerous stab wounds with a sharp object,

leading to severe blood loss and the death of the victim.1

1 During the autopsy, a sexual assault kit detected sperm
cells on the victim, indicating that the victim had had sexual
relations. The evidence was admitted through the testimony of
the forensic scientist who analyzed the sexual assault kit. The
trial judge initially did not allow the evidence of the results
of the sexual assault kit, as the evidence was not relevant.
The defendant then testified that the victim told him she had
 7

After stabbing the victim with a knife, the defendant

sliced his neck, threw the knife into the stairwell, and

proceeded back to his apartment. Following this, the defendant

obtained another knife from his apartment and then proceeded out

of the apartment. The defendant headed towards the exit of the

apartment building and passed by two friends telling them that

he "killed [the victim]" and that he "did it for love." He then

left the apartment building carrying the second knife, which he

used to stab himself in an attempted suicide. The defendant

subsequently ran into nearby woods and discarded the knife. The

defendant was later found in a shed by the State police and

handcuffed. While in custody, the defendant was transported to

a local hospital to treat his injuries.

At the hospital, the defendant was guarded by State police

Troopers Robert Lima and Brian Galvin and had one wrist

handcuffed to the hospital bed. Soon after entering the

defendant's hospital room, Lima read the defendant the Miranda

rights in Portuguese, the defendant's native language. The

defendant signed the Portuguese-translated Miranda form. The

been with another man, prompting the prosecutor to renew the
request to admit the evidence. The judge subsequently
determined that the fact that sperm was found was relevant, but
only because it was probative as to whether the victim said she
had sexual relations with another man. Because of this, the
judge limited admission of the evidence solely to the fact that
sperm was found.
 8

defendant then told Lima that he would talk. In response, Lima,

in Portuguese, told the defendant that Galvin had spoken with

the defendant's attorney, who advised the defendant not to

speak. The defendant then said he did not want to make any

statements.

Approximately one-half hour after receiving the Miranda

warnings, the defendant began speaking to Lima in broken

English. The defendant talked about his brother in Brazil and

his deceased sister and that he had twelve siblings. The

defendant stated that he worked at a pizza shop and loved living

in the United States. Then speaking in Portuguese, the

defendant told Lima that he has multiple children, "one of which

doesn't even know him," and then stated, "[W]hat did I go do . .

. . I killed my woman." Lima testified that the defendant was

upset and began crying. In response, Lima told the defendant to

stop talking, reminded the defendant in Portuguese that the

defendant had been read his rights, and reminded the defendant

that he, Lima, was a police officer. After this statement, the

defendant said he "just wanted to talk to [Lima]." Lima

testified that the defendant appeared very alert and cognizant

of his surroundings and that he was aware of what he was saying.

Lima estimated that the exchange with the defendant lasted

approximately two to three minutes.

Regarding the interaction between Lima and the defendant,
 9

defense counsel asked Lima on cross-examination:

Q.: "So did [the defendant] ever tell you when he did this
act to his girlfriend?"

A.: "No, sir."

Q.: "Or how he did this act to his girlfriend?"

A.: "He did not."

Q.: "Or why he did this act to his girlfriend?"

A.: "He did not."

Then in closing argument at trial, the prosecution

commented on the defendant's exchange with Lima, arguing:

"And then he tells him, what did I do? I killed my
woman. Don't hear anything at that time about because she
cheated on me. Don't hear anything about because she told
me she had sex with another man or that she'd been with
another man. Don't hear any of that in that moment."

The defendant testified at trial. He stated that he loved

the victim and knew he "lost [his] life" as a consequence of his

actions. The defendant testified that while arguments occurred

between him and the victim, the fights were never physical.

When questioned about the bathroom incident, the defendant

conceded that he banged his head against the wall, but denied

having a knife.

The defendant testified that, on the day the victim died,

the victim knocked on the defendant's apartment door, and the

victim and defendant proceeded to walk downstairs towards the

building exit together. The defendant believed that the victim
 10

was going to leave for work without talking to him, so the

defendant went back to his apartment and got a knife. The

defendant testified that he got the knife in order to slash the

victim's tires so that she could not leave and would therefore

talk to him. The defendant returned to the stairway with the

knife. The defendant testified that the victim told him she did

not love him anymore and that she had been with another man.

The defendant testified that, on hearing this statement, he

stabbed the victim numerous times.

Discussion. 1. Admission of prior bad act evidence. At

trial, defense counsel objected to the admission of the evidence

of the incident in which the defendant held a knife outside the

bathroom door of the victim. It was the day after this incident

that the defendant called a friend and said, "[T]hank God [the

victim] didn't open the door because I would have kill[ed] her

because I had a knife in my hand." At trial, the basis for the

objection to the bathroom incident evidence was improper

foundation. The defendant now contends that this prior bad act

evidence should not have been admitted, as its probative value

was outweighed by its unfair prejudicial effect.

As the grounds for objection on this issue that were raised

on appeal differ from the objection made at trial, the standard

of review that applies to this claim is whether there was a

substantial likelihood of a miscarriage of justice. See
 11

Commonwealth v. Lyons, 426 Mass. 466, 473 n.12 (1998) (error

objected to on ground different from that raised on appeal;

proper standard of review is substantial likelihood of

miscarriage of justice). We discern no error.

"Evidence of a defendant's prior or subsequent bad acts is

inadmissible for the purpose of demonstrating the defendant's

bad character or propensity to commit the crimes charged."

Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). See Mass.

G. Evid. § 404(b)(1) (2018). "However, such evidence may be

admissible for some other purpose, for instance, 'to establish

motive, opportunity, intent, preparation, plan, knowledge,

identity, or pattern of operation.'" Crayton, supra, quoting

Commonwealth v. Walker, 460 Mass. 590, 613 (2011). See Mass. G.

Evid. § 404(b)(2). "Even if the evidence is relevant to one of

these other purposes, the evidence will not be admitted if its

probative value is outweighed by the risk of unfair prejudice to

the defendant." Crayton, supra. See Mass. G. Evid.

§ 404(b)(2).

Here, the evidence of the defendant holding a knife outside

the bathroom door is highly probative of the hostile

relationship between the victim and the defendant, and his state

of mind. See Commonwealth v. Butler, 445 Mass. 568, 575 (2005)

(prior bad act evidence properly admitted to show hostile nature

of relationship); Commonwealth v. Cordle, 404 Mass. 733, 744
 12

(1989), S.C., 412 Mass. 172 (1992) (prior bad act evidence

admissible to show relationship between defendant and victim).

The evidence shows that the victim and the defendant had a

continuously hostile relationship with numerous arguments.

The evidence also reveals the defendant's intent, as even

he connected the bathroom knife incident to an intention to kill

the victim, telling friends that he would have killed the victim

with a knife. See Commonwealth v. Mazariego, 474 Mass. 42, 56

(2016) (prior bad act evidence properly admitted to show

defendant's intent). Finally, this evidence was relevant to

whether the defendant had an intention to kill the victim

regardless of whether he had been informed that she had been

with another man.2 Such evidence was thus relevant to the

critical issue of premeditation or provocation. See

Commonwealth v. Pagan, 440 Mass. 84, 87-88 (2003) (prior bad act

evidence admissible to show hostile nature toward victim and

premeditation of subsequent killing); Commonwealth v.

McGeoghean, 412 Mass. 839, 841, 844 (1992) (prior bad act

evidence admissible to show intent, supporting finding of

premeditation).

The judge also provided a limiting instruction to the jury

2 At trial, the defense argued that the defendant was
provoked by the victim in an attempt to mitigate the charge of
murder in the first degree.
 13

regarding the prior bad act evidence when it was offered and

again in his final charge, thus minimizing any prejudicial

effect.3 See Commonwealth v. Forte, 469 Mass. 469, 480 (2014)

(no error in admission of prior bad act evidence where, among

other things, jury instructions minimized potential for

prejudicial effect); Commonwealth v. Donahue, 430 Mass. 710, 718

(2000) (proper jury instructions can render potentially

prejudicial evidence harmless).

We therefore conclude that the judge did not abuse his

discretion in admitting the evidence of the prior bad act.

2. Use of post-Miranda statements and omissions. In the

3 The judge provided the following contemporaneous limiting
instruction:

"We just had some testimony about a prior incident
between [the victim] and the defendant in which the
defendant, according to this witness, had a knife and
indicated that he felt that he could use it. That evidence
is not admitted for the purpose of proving that the
defendant had a criminal propensity, a propensity to commit
crimes. It's being admitted solely to give you, the
jurors, an understanding of the relationship between [the
victim] and the defendant."

Prior to jury deliberations, the judge again provided a
limiting instruction regarding the prior bad act:

"You may not take that evidence as a substitute for
proof that the defendant committed the crime charged; that
is, the murder. Nor may you consider it as proof that the
defendant has a criminal personality or bad character.
However, you may consider it solely for the limited purpose
of understanding the nature of the defendant's relationship
with [the victim] at the time of the alleged murder. You
may not consider this evidence for any other purpose."
 14

instant case, the defendant voluntarily made statements to Lima

after receiving Miranda warnings. Those statements were made

spontaneously and not in response to interrogation.

Commonwealth v. Loadholt, 456 Mass. 411, 420, (2010), S.C., 460

Mass. 723 (2011). Finally, those statements were inconsistent

with the defendant's trial testimony, as facts alleged at trial

were omitted from the prior statements.

The defendant challenges the propriety of the following

portion of the prosecutor's closing argument:

"And then he tells him, what did I do? I killed my
woman. Don't hear anything at that time about because she
cheated on me. Don't hear anything about because she told
me she had sex with another man or that she'd been with
another man. Don't hear any of that in that moment."

"[W]here, as here, a defendant voluntarily makes post-

Miranda statements, and then testifies at trial, in order to

expose inconsistencies and differences in testimony, a

prosecutor may inquire into [and comment on] 'the omission[s]

from a [defendant's] pretrial statement[s] where it would have

been natural to include the omitted fact[s].'" Commonwealth v.

Guy, 441 Mass. 96, 106 (2004), quoting Commonwealth v. Rivera,

425 Mass. 633, 639 (1997). See Commonwealth v. Perez, 460 Mass.

683, 699 (2011), quoting Commonwealth v. Ortiz, 39 Mass. App.

Ct. 70, 72 (1995) (omission from earlier statement may be used

to impeach witness when "[the] omission from the earlier

statement is inconsistent with a later statement of fact" and
 15

"it would have been natural to include the fact in the initial

statement"). See also Mass. G. Evid. § 613(a).4

The defendant contends, nonetheless, that the prosecutor

should not have been permitted to comment on what the defendant

did not say because as soon as the defendant confessed to

killing the victim, Lima told the defendant to stop talking.

The defendant further contends that the reason the defendant

killed the victim would not naturally have been said in these

circumstances to Lima and that, therefore, nothing the defendant

voluntarily said or did not say was incompatible with his trial

testimony.

We disagree. Despite numerous warnings, the defendant

spoke freely; he was, in the words of the prosecutor, a

"talker." As exemplified by his numerous statements to his

friends, he regularly spoke what was on his mind regardless of

the consequences. At the hospital, the defendant also appeared

to be reaching out to Lima, speaking with Lima about various

subjects, including the defendant's family in Brazil,

particularly his brother who was a police officer; his current

4 The defendant also challenges various statements made by
the prosecutor during closing argument, including misstatements
of fact and improper requests to the jury to consider what they
heard while on the view of the murder scene. To the extent that
the prosecutor did make improper remarks during closing
argument, the judge addressed these issues during the jury
charge, providing curative instructions to the jury.
 16

employment; his love for and residence in the United States for

five years; and his children, including a son that did not know

him. Even following a second warning given by Lima about the

right to remain silent, the defendant still spoke, stating that

he "just wanted to talk."

In these circumstances, if the killing was provoked as a

result of the defendant learning that the victim had "been with

another man," it is reasonable to infer that the time the

defendant would have made this known was when the defendant made

his statement to the police. See Commonwealth v. Donovan, 58

Mass. App. Ct. 631, 639 (2003). The defendant's statements were

extensive enough to make the absence of any discussion about the

defendant's alleged provocation conspicuous. Id. It was in

this expansive context that the defendant said, "[W]hat did I go

do . . . . I killed my woman." Therefore, it was not improper

for the prosecutor to comment on this significant omission and

draw the jury's attention to these inconsistencies, especially

given the theory that the defense presented in closing argument.5

Even if improper, the prosecutor's comments would not have

created a substantial likelihood of a miscarriage of justice.

The Commonwealth presented overwhelming evidence of the

We note that only defense counsel inquired as to what was
5

not said by the defendant in his cross-examination of Lima. The
issue was thus first raised by the defense.
 17

defendant's premeditation. The defendant, on numerous occasions

over the course of several months and the days leading up to the

murder, told family and friends of the victim that he wanted to

kill the victim; that "what he was going to do, not even his own

mother would forgive"; and that he "was going to do something

crazy." This included the previous knife incident in the

bathroom. All of these statements were made prior to the

defendant's alleged knowledge that the victim had been with

another man. Consequently, the prosecutor's comments on the

omission, even if improper, would not have changed the jury's

finding that the killing was the result of the defendant's

preexisting intent to kill. See Commonwealth v. Littles, 477

Mass. 382, 391 (2017) (even where there was error in jury

instruction, error was found harmless when juxtaposed to

strength of Commonwealth's case).

3. Jury instructions. The defendant argues that it was

error for the trial judge to (1) fail to give sua sponte an

instruction on impeachment by prior omission as part of the

prior inconsistent statement instruction and (2) give a

consciousness of guilt instruction. We address each in turn.

a. Impeachment by prior omission. Because there was no

objection at trial to the jury instructions, we review this

claim of error for a substantial likelihood of a miscarriage of

justice. See Commonwealth v. Kosilek, 423 Mass. 449, 452
 18

(1996). We conclude that the better practice would have been to

include language concerning omissions in the prior inconsistent

statement instruction, but that the instruction given here was

adequate and not error. See, e.g., Commonwealth v. Simmonds,

386 Mass. 234, 242 (1982) (court references omissions in

considering prior inconsistent statements); Commonwealth v.

West, 312 Mass 438, 440 (1942) (same); Commonwealth v. Ortiz, 39

Mass. App. Ct. 70, 72 (1995) (same).

This issue has been raised in two Appeals Court cases. In

Commonwealth v. Clayton, 52 Mass. App. Ct. 198, 207 (2001), the

defendant requested a jury instruction on prior inconsistent

statements that included language concerning omitted statements.

However, the trial judge's charge on impeachment by prior

inconsistent statements did not include any instruction on

omissions. Id. In that case, because the defendant's

conviction was reversed on the basis of the trial judge's

exclusion of relevant evidence, the Appeals Court did not

consider whether the charge was sufficient on this point and, if

not, whether any error was prejudicial or harmless. See id.

In Commonwealth v. Bruce, 61 Mass. App. Ct. 474, 484

(2004), the Appeals Court decided the question, concluding that

the judge's instruction on prior inconsistent statements was

adequate, as it neither misstated the case law nor prevented the

jury from considering omissions as inconsistencies. Although
 19

the judge's instruction in Bruce did not integrate omissions

into the prior inconsistent statement instruction, the Appeals

Court reviewed the prior inconsistent statement instruction and

the over-all charge as a whole and found that it accurately

conveyed to the jury their role in assessing the witness's

credibility. Id.

We likewise conclude that the prior inconsistent statement

instruction here adequately explained the issue to the jury.6

See Bruce, 61 Mass. App. Ct. at 484. We thus discern no error.

That being said, we reiterate that the better practice is to

instruct on omissions in the prior inconsistent statement

instruction where omissions are at issue.7

6 The judge provided the following instruction:

"Now, as a general rule, we allow witnesses to testify
in court and we exclude out-of-court, prior out-of-court
statements by witnesses. There have been some prior out-
of-court statements by witnesses used in this case. One
example is a prior inconsistent statement. If a witness
testifies in court, an attorney is permitted to ask the
witness, well, isn't it true that you testified
inconsistently, differently, on a prior occasion, or you
gave a statement out of court on a prior occasion which is
different from what you're saying now. In that case, the
out-of-court statement is not admitted as substantive
evidence. You're not allowed to base your verdict on it.
It's introduced to assist you in judging whether or not you
believe the in-court testimony. That's the purpose of it."

7 If omissions are at issue, the better practice would be to
include an instruction along the following lines: "A prior
inconsistent statement is one that, either by what it says or by
what it omits to say, affords some indication that the fact was
 20

b. Consciousness of guilt. The defendant objected to the

consciousness of guilt instruction, claiming that there was no

evidence of flight and no dispute that the defendant had killed

the victim.8 Here, given that there was evidence of the

defendant's flight from the scene, we discern no error in the

judge's instruction and conclude that the judge acted within his

discretion in deciding, over the defendant's objection, to give

different from the testimony of the witness whom it is sought to
contradict. An omission from the earlier statement is
inconsistent with a later statement of fact when it would have
been natural to include the fact in the initial statement." See
Commonwealth v. West, 312 Mass. 438, 440 (1942); Commonwealth v.
Ortiz, 39 Mass. App. Ct. 70, 72 (1995).

8 The judge instructed the jury:

"We've also had evidence in the case that the
defendant fled from the scene of the incident. If the
Commonwealth has proven the defendant did flee from the
scene, you may consider whether such actions indicate
feelings of guilt by the defendant and whether, in turn,
such feelings of guilt might tend to show actual guilt of
the charge. You are not required to draw such inferences
and you should not do so unless they appear to be
reasonable in light of all the circumstances of this case.
If you decide that such inferences are reasonable, it will
be up to you to decide how much importance to give them.
However, you should always remember that there may be
numerous reasons why an innocent person might do such
things. Such conduct does not necessarily reflect feelings
of guilt. Please also bear in mind that a person having
feelings of guilt is not necessarily guilty in fact, for
such feelings are sometimes found in innocent people.
Finally, remember that standing alone, such evidence is
never enough by itself to convict a person of a crime. You
may not find the defendant guilty on such evidence; that
is, evidence of flight from the scene, by itself. But you
may consider it in your deliberations along with all the
other evidence."
 21

an instruction on consciousness of guilt.

The judge properly determined that a consciousness of guilt

instruction served a "useful and proper purpose" because

"although the killing has been admitted, [it was] still the

Commonwealth's burden to prove guilt of murder." Commonwealth

v. Morris, 465 Mass. 733, 740 (2013). See Commonwealth v.

Stuckich, 450 Mass. 449, 453 (2008) (consciousness of guilt

instruction permissible where there is evidence of flight). The

judge also took careful steps to preserve the neutrality of the

instruction by highlighting that innocent people do engage in

flight, and that such conduct does not necessarily reflect

feelings of guilt. Morris, supra.

4. Review under G. L. c. 278, § 33E. We have reviewed

the record pursuant to G. L. c. 278, § 33E, and discern no basis

to set aside or reduce the verdict of murder in the first degree

or to order a new trial. Accordingly, we decline to exercise

our authority.

Judgment affirmed.