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SJC-10566
COMMONWEALTH vs. MANOLO SALAZAR.
Suffolk. September 12, 2018. - December 14, 2018.
Present: Gants, C.J., Lowy, Budd, & Kafker, JJ.
Homicide. Evidence, Intoxication, Intent, Medical record,
Expert opinion, Argument by prosecutor. Intoxication.
Intent. Practice, Criminal, Argument by prosecutor,
Assistance of counsel, Capital case.
Indictment found and returned in the Superior Court
Department on March 24, 2005.
The case was heard by Margaret R. Hinkle, J.; and a motion
for a new trial, filed on January 11, 2016, was heard by Douglas
H. Wilkins, J., and a motion for reconsideration was considered
by him.
Amy M. Belger for the defendant.
Kathryn E. Leary, Assistant District Attorney (John P.
Pappas, Assistant District Attorney, also present) for the
Commonwealth.
LOWY, J. On the night of January 31, 2005, members of the
Boston fire department in the Dorchester section of Boston
responded to the sound of banging on their fire house door.
2
Outside the station was the defendant, Manolo Salazar, covered
in blood. After examining the defendant, firefighters found
only a minor cut on his right hand. Police investigation
revealed the source of the rest of the blood on the defendant's
body: Carlos Cruz, the defendant's roommate, whom police found
dead in their shared apartment.
After a jury trial, the defendant was convicted of murder
in the first degree on the theory of deliberate premeditation.1
He raises several arguments on appeal: (1) the judge erred in
denying his motions for a required finding of not guilty on the
murder charge because the evidence was insufficient to establish
deliberate premeditation; (2) he should be afforded a new trial
because trial counsel was ineffective in failing to introduce
evidence in support of a defense based on voluntary
intoxication; and (3) improper statements in the prosecutor's
closing argument created a substantial likelihood of a
miscarriage of justice.2 The defendant also asks us to exercise
1 The defendant was acquitted of assault and battery.
2 The defendant raised one additional argument pursuant to
Commonwealth v. Moffett, 383 Mass. 201, 208-209 (1981). The
defendant contends that he was prejudiced by the trial judge's
denial of his motion for the funds necessary to translate his
trial transcripts into Spanish. An indigent defendant is
entitled to funds for "extra fees and costs . . . if 'the
document, service or object is reasonably necessary to assure
the applicant as effective a . . . defense . . . as he would
have if he were financially able to pay.'" Commonwealth v.
3
our authority under G. L. c. 278, § 33E, to either reduce his
conviction to murder in the second degree or order a new trial.
Having thoroughly reviewed the defendant's asserted errors
and the record as a whole, we discern no reversible error.
However, given the unique circumstances of this case, we
exercise our authority under G. L. c. 278, § 33E, to reduce the
defendant's verdict to murder in the second degree.
1. Background. a. Trial. Because the defendant
challenges the sufficiency of the evidence, we recite the facts
that the jury could have found in the light most favorable to
the Commonwealth and reserve additional facts for later
discussion.
At approximately 8:40 P.M. on January 31, 2005, members of
the Boston fire department heard banging on the door of a
station in Dorchester. They found the defendant at the door.
He fell down. His clothes, including the socks on his shoeless
feet, were covered in blood. The lone injury firefighters
discovered was a minor laceration between the defendant's right
Millien, 474 Mass. 417, 430 (2016), quoting G. L. c. 261, § 27C.
In making a decision on a motion for funds, a judge may
consider, among other things, the cost of the requested item and
its potential value. Commonwealth v. Lockley, 381 Mass. 156,
160-161 (1980). The estimated cost of the translation was
$12,348, and the defendant was present, with a translator,
throughout his trial. Further, the defendant's appellate
counsel was provided with the trial transcripts and could
therefore discuss them with his client. Therefore, we discern
no error in the judge's denial of the motion for funds.
4
thumb and forefinger that was not bleeding heavily enough to
account for all of the blood on his clothes. After an ambulance
arrived, the defendant became combative and was handcuffed to a
backboard by paramedics before being transported to a Boston
hospital.
Initially, the defendant told police that his last name
began with a "Z" instead of an "S" and provided them with an
inaccurate home address. Subsequent investigation led police to
the defendant's home in Dorchester, a three-unit apartment
building. On entry into the defendant's third-floor apartment,
police discovered the victim lying dead on the floor between a
hallway and a bedroom. A Boston Police Department detective
observed a large pool of blood below the victim's body. Inside
that pool of blood was a kitchen knife with a wooden handle and
a serrated edge, which was "drastically" bent.
The Commonwealth's chief medical examiner at the time of
trial testified to the victim's autopsy report, which had been
prepared by another medical examiner. He detailed the victim's
injuries, noting that the "most lethal" wound was a cut
beginning at the victim's left ear and continuing to his neck.
He described the wound as a deep stab wound that injured both
the victim's carotid artery and his jugular vein, causing him to
bleed to death. He described eleven additional injuries; five
were abrasions and six were clearly caused by a sharp object.
5
The additional sharp object injuries included three stab wounds
(one to the left arm, one to the left shoulder, and one near the
left armpit that was four inches deep) and three, more shallow,
incised wounds (one to the outside of the left arm, one to the
left side of the chest, and one that extended from the victim's
left index finger to his ring finger). The medical examiner
described the injury across the victim's fingers as consistent
with the victim "trying to deflect" the knife with that hand.
He further opined that the victim's wounds were consistent with
the knife that was found underneath him, and that the cut on the
defendant's hand was consistent with the murder weapon slipping
in the defendant's hand.
Police viewed reddish-brown stains throughout the apartment
that created a trail from the area of the victim's body down the
hallway, through the kitchen, onto the back porch, over the
third-floor railing and down to the railings on the second and
first floors, through the backyard, and over a chain-link fence.
That trail then led through a vacant lot and onto nearby
streets, eventually leading to the fire station.
Deoxyribonucleic acid testing identified the victim's blood as a
possible source of many of these "reddish-brown" stains,
including those on the defendant's pants and socks, one on the
porch railing on the third floor, and one on a snow pile in the
vacant lot.
6
The defendant testified in his own defense and denied
killing the victim. He testified that the victim was "almost
like my brother" and that the two had spent the day of January
31 together in the apartment cooking and drinking beer.
Although the defendant did not recall how many beers he
consumed, his testimony suggested that he was drinking beer from
at least 11:30 A.M. until approximately 4 P.M., at which point
he fell asleep on the couch. The defendant testified that he
was awakened by loud voices arguing in the apartment and saw two
strange men inside the apartment arguing with the victim. One
of the men had a knife and began stabbing the victim, causing
the defendant to intervene. The defendant said that he was then
beaten by the two men and fled the apartment, going directly to
the fire station to find help.
The judge denied the defendant's motions for a required
finding of not guilty. At the charge conference, trial counsel
requested that the judge instruct the jury on intoxication as
relevant to both intent and deliberate premeditation. The judge
so instructed the jury, but noted to counsel that "there is a
paucity of evidence on [intoxication] and there's certainly no
scientific evidence that I've seen."
b. Motion for new trial. The defendant filed a motion for
a new trial after his conviction, asserting ineffective
assistance of counsel based on trial counsel's failure to
7
introduce medical records showing his levels of intoxication.3
The jury had heard evidence suggesting that the defendant was
intoxicated on the night of the murder, including testimony from
a woman who had translated for the defendant at the hospital.
The woman testified that the defendant's speech "was kind of
sluggish," his breath smelled of alcohol, and his eyes were
bloodshot. Trial counsel did not mention intoxication in her
opening statement, and she referenced the evidence of the
defendant's intoxication in her closing argument only in an
attempt to explain disparities in the defendant's recollection
of events.
Not before the jury, however, were the defendant's medical
records, which were discussed before trial at an evidentiary
hearing on the defendant's motion to suppress. His breathalyzer
results indicated either a 0.298 or a 0.289 blood alcohol
content (BAC), his blood alcohol readings were 0.226 and 0.288,
and he had a serum alcohol level of 307. The defendant was
diagnosed with alcohol intoxication, and a medical technician
testified at the suppression hearing that the defendant's
3 The defendant's motion for a new trial was argued before a
different judge, as the trial judge had retired.
8
breathalyzer results indicated a very high level of
intoxication.4
Trial counsel submitted an affidavit stating that her
failure to introduce medical records indicating the defendant's
high level of intoxication was not a strategic decision, but
rather an oversight on her part. In denying the defendant's
motion without an evidentiary hearing, the motion judge
implicitly discredited trial counsel's affidavit and determined
that the record indicated "that counsel consciously chose not to
offer the medical records." Emphasizing how a vigorous
intoxication defense would have undermined the defendant's
testimony that he was innocent, the motion judge found that
trial counsel made a tactical decision to focus on a third-party
culprit theory rather than introduce significant evidence of
intoxication.
The defendant filed a motion for reconsideration, which was
allowed, and an evidentiary hearing on the motion for a new
trial followed. Trial counsel testified at the hearing. In an
amended decision, the motion judge noted that the defendant's
medical records showed "very significant intoxication" and
4 The defendant sought to exclude evidence of his
intoxication, including both statements made and physical
evidence. His motion to suppress was denied, and the evidence
of his intoxication was available to be admitted in evidence
during trial.
9
credited trial counsel's testimony that she had intended to
present and rely on those medical records as part of her
intoxication strategy. He further concluded that trial counsel
never intended to call as a witness at trial the medical
technician who had administered the defendant's breathalyzer
test at the hospital and who had testified at the suppression
hearing that the defendant's BAC was "very high."
The judge issued an amended decision on the defendant's
motion for a new trial. The judge concluded that trial counsel
pursued a dual-defense strategy and had intended to introduce
the medical records as a part of a voluntary intoxication
defense. The judge held that, because trial counsel
inadvertently failed to introduce those records because she
believed that they were in evidence, trial counsel's performance
fell measurably below that of an ordinary fallible lawyer.5 See
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The judge
determined that this error did not warrant a new trial, however,
because the jury heard "substantial evidence of intoxication
. . . and received full instructions to consider the defendant's
voluntary intoxication on the questions of intent and deliberate
5 The judge rejected the defendant's argument that defense
counsel's strategic decision not to call the technician as a
witness to testify at trial regarding the defendant's BAC was
manifestly unreasonable, as "the overall defense strategy [was]
to preserve, but not highlight, intoxication."
10
premeditation." The motion judge noted that trial counsel,
despite her mistake, skillfully sought to "soft-pedal" the
intoxication defense. In other words, she attempted to present
evidence of the defendant's intoxication without undermining his
claim to innocence.
2. Discussion. a. Sufficiency of the evidence. The
defendant maintains that the evidence presented at trial was
insufficient to establish deliberate premeditation, and that the
judge's denial of his motions for a required finding of not
guilty was therefore error. We review the denial of a motion
for a required finding of not guilty to determine "whether the
evidence offered by the Commonwealth, together with reasonable
inferences therefrom, when viewed in its light most favorable to
the Commonwealth, was sufficient to persuade a rational jury
beyond a reasonable doubt of the existence of every element of
the crime charged." Commonwealth v. Whitaker, 460 Mass. 409,
416 (2011), quoting Commonwealth v. Lao, 443 Mass. 770, 779
(2005), S.C., 450 Mass. 215 (2007) and 460 Mass. 12 (2011). See
Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
To prove murder in the first degree on the theory of
deliberate premeditation, the Commonwealth must prove "not only
that the defendant intended to kill, but that the defendant
decided to kill after a period of reflection." Whitaker, 460
Mass. at 418. There is "[n]o particular length of time of
11
reflection . . . required to find deliberate premeditation, and
the decision may be made in only a few seconds." Commonwealth
v. Rakes, 478 Mass. 22, 34 (2017). Circumstantial evidence
alone may be sufficient to prove deliberate premeditation.
Commonwealth v. Veiovis, 477 Mass. 472, 480 (2017).
We have recognized as proper considerations in a deliberate
premeditation analysis the number and severity of the injuries,
including defensive wounds, the procuring of a murder weapon in
one room and carrying it to use in another, and the location of
a victim's wounds. See Whitaker, 460 Mass. at 419 ("Deliberate
premeditation may be inferred from the nature and extent of a
victim's injuries, the duration of the attack, the number of
blows, and the use of various weapons"); Commonwealth v. Nolin,
448 Mass. 207, 216 n.7 (2007) (deliberate premeditation
established by "the number and severity of the injuries" to
victim's face and head). See also Commonwealth v. Townsend, 453
Mass. 413, 429 (2009) (victim's fifty-eight stab wounds,
including several defensive wounds, sufficient for deliberate
premeditation); Commonwealth v. Farley, 432 Mass. 153, 157-158
(2000), S.C., 443 Mass. 740, cert. denied, 546 U.S. 1035 (2005)
(evidence sufficient to establish deliberate premeditation where
"the Commonwealth relied on the fact that the victim had been
stabbed multiple times; the location of the wounds; the duration
of the attack; and the inference that the defendant carried a
12
knife from the kitchen to the victim's upstairs bedroom");
Commonwealth v. Andrews, 427 Mass. 434, 440 (1998) (shooting
unarmed victim four times from close range sufficient for
deliberate premeditation); Commonwealth v. Watkins, 373 Mass.
849, 852 (1977) ("that the defendant, after a quarrel, went to
the kitchen, picked up a knife, and returned to stab the victim
is sufficient" for premeditation).
We conclude that, here, the evidence and the reasonable
inferences that stem from it, considered in the light most
favorable to the Commonwealth, were sufficient to prove that the
murder was deliberately premeditated. The knife used to kill
the victim was a kitchen knife, and the location of the victim's
body between the hallway and a bedroom allows for a reasonable
inference that the defendant retrieved the weapon from the
kitchen before the killing. The fatal wound was a deep wound to
the victim's neck. The victim had at least six other stab or
incised wounds, including defensive wounds on his left hand and
injuries to his left side, arm, and shoulder, that left the
knife "drastically" bent. The judge's denial of the defendant's
motions for a required finding of not guilty was proper.
b. Ineffective assistance of counsel. The defendant
maintains that he was deprived of effective assistance of
counsel at trial because his counsel failed to introduce the
defendant's medical records indicating his high level of
13
intoxication on the night of the murder. Because the defendant
was convicted of murder in the first degree, we review the claim
under the more favorable standard articulated in G. L. c. 278,
§ 33E, under which we must determine whether there was a
substantial likelihood of a miscarriage of justice.
Commonwealth v. Alicea, 464 Mass. 837, 845 (2013), quoting
Commonwealth v. Gonzalez, 443 Mass. 799, 808 (2005). To make
this determination, we ask "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." Alicea, supra, quoting
Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469
Mass. 447 (2014). "[W]e consider a defendant's claim even if
the action by trial counsel does not constitute conduct 'falling
measurably below that . . . of an ordinary fallible lawyer.'"
Gonzalez, supra at 808-809, quoting Commonwealth v. MacKenzie,
413 Mass. 498, 517 (1992).6
We agree with the motion judge that trial counsel's
oversight in failing to introduce the defendant's medical
6 This standard differs from the Saferian standard motion
judges apply when ruling on motions for a new trial based upon
ineffective assistance of counsel claims. Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). Although this difference in
standards does not have an impact on our decision in this case,
we note that it may, at times, result in a reversal of a motion
judge's decision even though the motion judge may well have been
affirmed if we were applying the same standard of review.
14
records was error. We differ from the motion judge's ruling
that it was a reasonable strategic decision by trial counsel to
not supplement those records with expert testimony regarding the
relationship between the BAC reading and intoxication. See
Commonwealth v. Colturi, 448 Mass. 809, 817-818 (2007) ("the
jury would be left to guess" at meaning of defendant's BAC
absent expert testimony).
We recognize that trial counsel was faced with a difficult
strategic predicament at trial. The defendant, as is his
constitutional right, testified in his own defense. See
Commonwealth v. Brown, 479 Mass. 163, 171 (2018). He
unequivocally denied killing the victim. Therefore, the motion
judge found that trial counsel decided to pursue the voluntary
intoxication defense ever mindful of its potential to undercut
the primary defense of innocence. See Commonwealth v. Morales,
453 Mass. 40, 43-45 (2009). The motion judge ultimately
concluded that trial counsel "soft-pedaled" the intoxication
defense so as to leave the question in the jury's hands without
overemphasizing the defendant's intoxication. There are
situations where the appropriate course of action would be to
pursue alternative defenses -- "rid[e] 'two horses'" into
battle. Commonwealth v. Kolenovic, 471 Mass. 664, 676 (2015),
S.C., 478 Mass. 189 (2017). Trial counsel chose such a strategy
in the present case. However, having made that decision, trial
15
counsel was required to pursue each of those defenses
effectively. Although the choice to soft-pedal the intoxication
defense was reasonable, her failure to introduce the most
compelling evidence of the defendant's intoxication was error.
Nevertheless, the jury were presented with evidence that
allowed them to consider the question of intoxication. Most
notably, the defendant testified that he had spent at least four
and one-half hours drinking beer with the victim on the day of
the murder, although he did not know how many beers he had
consumed. The woman who interacted with the defendant at the
hospital noted that his breath smelled of alcohol, his eyes were
bloodshot, and his speech was sluggish. Although there is no
dispute that the defendant drank and showed signs of
intoxication, there also was ample evidence before the jury to
show that the defendant was not intoxicated to the point of
debilitation. He was coherent in his interactions with medical
personnel and was physically able to climb to the ground from
the deck of his third-floor apartment.
The judge instructed the jury that they could consider the
mitigating effect of voluntary intoxication, stating, "[A]ny
evidence that you find credible of the defendant's consumption
of alcohol, you may consider that evidence in determining
whether the defendant specifically intended to commit an offense
16
or whether the defendant deliberately premeditated the killing
of [the victim]."
Because the defendant's intoxication may have been
probative of a lack of capacity to formulate the intent
necessary to prove murder by deliberate premeditation, the jury
could have found the defendant guilty of a lesser offense or
acquitted him had they determined his level of intoxication to
be "debilitating." Commonwealth v. Carter, 475 Mass. 512, 524
(2016). See Commonwealth v. Murphy, 442 Mass. 485, 504 (2004).
That debilitation must be to the point that it "could support a
reasonable doubt as to the defendant's ability to form the
requisite criminal intent" or to deliberately premeditate.
Commonwealth v. Lennon, 463 Mass. 520, 523 (2012). As evidenced
by the request for an intoxication instruction, trial counsel
pursued this defense. Trial counsel also pointed to the
defendant's intoxication in her closing argument as a possible
explanation for disparities in the defendant's account of the
night in question. It was an error by counsel, therefore, to
not introduce the defendant's medical records and accompanying
expert testimony to explain the significance of his BAC,
particularly because expert testimony likely would have shown
the BAC to demonstrate a high level of intoxication. See
Commonwealth v. Wall, 469 Mass. 652, 671 (2014) (testimony that
BAC of 0.21 per cent "very high").
17
Therefore, the question is whether this error created a
substantial likelihood of a miscarriage of justice. Despite
trial counsel's errors, her approach to the trial was consistent
with the motion judge's determination that she "soft-pedaled"
the intoxication defense. At the time of the closing argument,
trial counsel believed that the defendant's medical records had
been entered in evidence. Despite this belief, she opted not to
argue that the defendant's intoxication diminished his capacity
to form intent or deliberately premeditate. This suggests that
although trial counsel chose to ride two horses into battle, she
focused primarily on only one of them in closing argument. It
"is a well-known and time-honored approach" to avoid emphasizing
a defense that would undermine a primary defense theory.
Commonwealth v. Walker, 443 Mass. 213, 228 (2005). See
Commonwealth v. Spray, 467 Mass. 456, 473-475 (2014). When
considering a defense attorney's strategy at trial, "we conduct
our review with some deference to avoid characterizing as
unreasonable a defense that was merely unsuccessful."
Kolenovic, 471 Mass. at 673, quoting Commonwealth v. Valentin,
470 Mass. 186, 190 (2014). "This measure of deference is as it
must be because, ultimately, counsel alone has the benefit of
the full factual picture that dictates the choice of those
matters to be revealed to the fact finder and those that are
better left unexposed to court room scrutiny. From that vantage
18
point, counsel 'knows best how to defend a client.'" Kolenovic,
supra, quoting Commonwealth v. Glover, 459 Mass. 836, 843
(2011).7
We recently considered a similar question in Commonwealth
v. Montrond, 477 Mass. 127, 134-136 (2017), where the
defendant's trial counsel argued that a shooting was accidental
while choosing not to introduce evidence of the defendant's
possible intoxication. Although the evidence of intoxication in
the Montrond case, which we termed to be "tepid at best,"8 may
7 The defendant's appellate counsel argues that the
defendant's testimony at trial was fantastical and would not
have been credited by the jury. Although that may be so, the
decision whether to testify is the prerogative of the accused.
Commonwealth v. Jenkins, 458 Mass. 791, 803 (2011) ("The
decision whether to testify is an important strategic one to be
made by the defendant in consultation with his attorney").
Defense counsel may sometimes disagree with a defendant's
decision to testify and may provide advice to assist the
defendant in that decision. See generally id. at 802-804.
Ultimately, should the defendant decide to testify to his or her
side of the story, respect for the defendant's personal autonomy
requires that the defendant's own attorney not undermine that
decision. See id. at 803 (waiver of right to testify on one's
own behalf must be knowing and intelligent). But see Mass. R.
Prof. C. 3.3 (e), as appearing in 471 Mass. 1416 (2015) (where
defense counsel knows that his or her client is going to testify
falsely, he or she "may not aid the client in constructing false
testimony, and has a duty strongly to discourage the client from
testifying falsely, advising that such a course is unlawful");
Commonwealth v. Mitchell, 438 Mass. 535, 550-553, cert. denied,
539 U.S. 907 (2003). See also Nix v. Whiteside, 475 U.S. 157,
173 (1986).
8 The evidence suggesting that the defendant in Montrond was
intoxicated was limited to a first responder's description of
the defendant as "reek[ing] of [body odor], like sweat and [body
19
have been "somewhat helpful to the defendant[]," we concluded
that it "hardly would have given rise to a compelling inference
that the defendant was so intoxicated that he could not
appreciate the need to check the safety lock before pointing a
loaded gun at someone's head and pulling the trigger." Id. at
136. The evidence of intoxication here rises above the tepid
level seen in the Montrond case. It is not, however, so strong
that we are concerned that the failure to admit medical evidence
of the defendant's intoxication would have been likely to
influence the jury's decision.
The defendant's BAC, although high, would have been just
one of many factors the jury could have considered in
determining whether he was intoxicated to the point of
debilitation, such that there was "reasonable doubt as to [his]
ability to form the requisite criminal intent."9 Lennon, 463
Mass. at 523. Although evidence of the defendant's BAC would
odor], and of alcohol" and the defendant's emotional behavior
that may have been viewed as consistent with being alcohol
related. Commonwealth v. Montrond, 477 Mass. 127, 136 (2017).
There is no BAC that constitutes "per se" debilitation in
9
the way seen in prosecutions for operating while under the
influence. Colturi, 448 Mass. at 810. With that in mind, there
is ample evidence to suggest that the defendant was not
intoxicated to the point of debilitation. He was coherent in
talking to firefighters, paramedics, and hospital staff. He was
capable of climbing from the back porch of his third-floor
apartment to the ground, without stairs. He also had the
presence of mind and ability to climb a fence, proceed through a
vacant lot, and walk directly to a fire station.
20
have been the strongest evidence to suggest he was debilitated
by alcohol, the entirety of the evidence before the jury coupled
with trial counsel's reasonable decision to "soft-pedal" the
intoxication defense leaves us unpersuaded that the defendant's
medical records would have influenced the jury's verdict. We
conclude that defense counsel's error in failing to admit them
in evidence did not create a substantial likelihood of a
miscarriage of justice.
c. Closing argument. The defendant asserts that the
prosecutor made improper remarks in his closing argument.
Because trial counsel did not object to the closing argument at
trial, we review to determine whether there was an error and, if
so, whether that error created a substantial likelihood of a
miscarriage of justice. See Veiovis, 477 Mass. at 488.
"To be sure, 'prosecutors are held to a stricter standard
than are errant defense counsel and their clients.'"
Commonwealth v. Goitia, 480 Mass. 763, 775 (2018), quoting
Commonwealth v. Arroyo, 442 Mass. 135, 147 (2004). The
defendant contends that three portions of the prosecutor's
closing argument were improper: (1) a reference to the twenty-
month period between the murder and trial, which accompanied the
prosecutor's suggestion that the defendant now had no more time
to produce a different explanation for the victim's death, such
as a third party; (2) the statement that the jury should use
21
their "moral compass" and "gut" in evaluating the evidence and
testimony; (3) the statement that the defendant's intoxication
was "not an excuse" for the murder, "[w]hether he had two beers,
four beers, or [forty-four] beers."
We discern no error in the prosecutor's reference to the
twenty-month period between the murder and trial. The
prosecutor discussed that period of time while highlighting the
disparities in the defendant's story throughout that time
period, including the detailed nature of the defendant's
testimony at trial as compared to the defendant's statements at
the time of the killing. This portion of the argument was
grounded in the evidence presented at trial and was a reasonable
commentary on the defendant's credibility. See Commonwealth v.
Tu Trinh, 458 Mass. 776, 788 (2011).
The prosecutor's call for jurors to follow their moral
compass is troublesome, but we conclude that even if it was
error, it did not create a substantial likelihood of a
miscarriage of justice. The relevant portion of the
prosecutor's argument is as follows:
"You . . . impartial jurors also have something inside you
besides your commonsense. And it's what I refer to as a
moral compass. That little moral compass, when you know
based on your gut that something's wrong, that something is
askew with a certain situation. And I suggest to you,
ladies and gentlemen, based on the evidence in this case,
that your moral compass goes haywire when you consider what
was in that apartment and his actions and his statements in
the aftermath of 8:40 P.M. approximately on January 31st of
22
2005. You know, based on your everyday life experience
that something was horribly amiss with his behavior, his
statements and his actions that night."
It is well established that it is proper to ask a jury to rely
on their common sense and life experience in assessing evidence
and credibility. See Lao, 460 Mass. at 22. The prosecutor's
invocation of the jury's "moral compass" however, was a step
beyond an ordinary call for the jury to rely on their life
experience and common sense, and approached an improper appeal
to the jury's emotions. It was thus better left unsaid. We
need not determine whether it was improper, however, because
even if it was, we are unpersuaded that this sole misstatement
would undermine the jury's verdict, particularly where the jury
were properly instructed that closing arguments are not
considered evidence. See Commonwealth v. Kozec, 399 Mass. 514,
517 (1987). Considering the statement in the context of the
rest of the closing argument and the trial as a whole, any
prejudice was minor and does not warrant reversal. See
Commonwealth v. Braley, 449 Mass. 316, 329 (2007).
Finally, although the prosecutor's statement that the
defendant's possible intoxication did not "excuse" his actions
was technically consistent with the law, we are concerned that
the prosecutor crossed the line into a misstatement of the law.
See Commonwealth v. Rollins, 470 Mass. 66, 81 (2014), quoting
Commonwealth v. Bins, 465 Mass. 348, 367 (2013) ("We have
23
repeatedly warned that, in 'closing argument,' '[l]awyers shall
not and must not misstate principles of law'"). It is true that
intoxication does not serve as an excuse in the way that, for
instance, self-defense does. See Commonwealth v. Walczak, 463
Mass. 808, 817 (2012) (Lenk, J., concurring), quoting Model Jury
Instructions on Homicide 8 (1999) (self-defense can serve as
legal justification for a killing, rather than mitigating
factor). In the context of the trial as a whole and the rest of
the prosecutor's closing argument, however, the prosecutor's
statement regarding excuse appears to be a colloquial suggestion
that the defendant's intoxication could neither excuse his
actions nor diminish his culpability. Thus, the prosecutor's
pronouncement that the defendant's intoxication was no excuse
for his actions adversely had an impact on the effectiveness of
the judge's intoxication instruction.
That error, however, was not significant enough that our
confidence in the jury's decision is shaken. The defendant's
trial counsel referred to the defendant's intoxication in her
closing argument only as a means to explain discrepancies
between his multiple versions of the night of the killing. The
prosecutor's statement, while erroneous, was a brief, isolated
statement in his closing argument and was not egregious enough
to infect the whole of the trial. Finally, the judge properly
instructed the jury that closing arguments are not evidence, and
24
it is well-established that "[t]he jury are presumed to follow
instructions." Commonwealth v. Hernandez, 473 Mass. 379, 392
(2015), citing Commonwealth v. Andrade, 468 Mass. 543, 549
(2014). See Kozec, 399 Mass. at 517. With all that in mind, we
conclude that the prosecutor's error was unlikely to have
influenced the jury's ultimate decision and therefore did not
create a substantial likelihood of a miscarriage of justice.
d. Review pursuant to G. L. c. 278, § 33E. The defendant
asks us, in the alternative to his grounds for appeal addressed
above, to exercise our authority under G. L. c. 278, § 33E, to
either order a new trial or reduce his conviction to murder in
the second degree. It is our statutory duty "to consider
broadly the whole case on the law and the facts to determine
whether the verdict is consonant with justice" (quotations and
citation omitted). Commonwealth v. Vargas, 475 Mass. 338, 363-
364 (2016). "[F]or any . . . reason that justice may require,
[we may] (a) order a new trial or (b) direct the entry of a
verdict of a lesser degree of guilt, and remand the case to the
superior court for the imposition of sentence." G. L. c. 278,
§ 33E. Although we recognize that our power under § 33E "is to
be exercised sparingly," Commonwealth v. Seit, 373 Mass. 83, 95
(1977), we are persuaded that, here, a verdict of murder in the
second degree would be more "consonant with justice." Vargas,
supra.
25
Our duty under § 33E "does not . . . convert this court
into a second jury." Commonwealth v. Penn, 472 Mass. 610, 621
(2015), cert. denied, 136 S. Ct. 1656 (2016), quoting
Commonwealth v. Franklin, 465 Mass. 895, 916 (2013). But this
case presents one of the rare situations in which we conclude
that the jury's verdict of murder in the first degree was
supported by the evidence, but was not consonant with justice.
In Commonwealth v. Lanoue, 392 Mass. 583, 591-592 (1984), S.C.,
400 Mass. 1007 (1987) and 409 Mass. 1 (1990), we exercised our
authority under § 33E where the evidence was sufficient to
convict the defendant of murder in the first degree on a theory
of deliberate premeditation, but the evidence was entirely
circumstantial and "thin." There was evidence that the victim
in the Lanoue case had sustained multiple injuries and that the
defendant was intoxicated at the time of the killing, and
although the judge instructed the jury on the relationship
between intoxication and deliberate premeditation, the adequacy
of the instruction was questionable. Id. We reduced the
defendant's verdict to murder in the second degree. Id. at 592.
Due to the unusual nature of this case, we reach the same
conclusion as we did in the Lanoue case.10 There was sufficient
10In Commonwealth v. Deconinck, 480 Mass. 254, 255, 256
(2018), we declined to exercise our authority under G. L.
c. 278, § 33E, and upheld the defendant's conviction of murder
26
evidence before the jury to support their conclusion that the
defendant had killed the victim after deliberate premeditation,
but it was far from compelling. In addition to there being no
definitive evidence as to what happened in the apartment on the
night of the killing other than the victim being stabbed
multiple times, there is nothing to suggest that there was any
ill will between the defendant and the victim, or to suggest
that there was any motive for the killing. See Seit, 373 Mass.
in the first degree on a theory of extreme atrocity or cruelty.
We did so despite evidence of intoxication and evidence
suggesting that the killing may have been done in self-defense
or in the midst of sudden combat or heat of passion. Id. at
255, 258-259. The Deconinck case, however, is readily
distinguishable from the present case. First and foremost, the
evidence in support of a verdict of murder in the first degree
on a theory of extreme atrocity or cruelty in Deconinck was
overwhelming. Indeed, there was no challenge to the sufficiency
of the evidence on appeal. The defendant in Deconinck inflicted
sixty-nine stab wounds on the victim, including a deep stab
wound to the victim's chest, and two deep stab wounds to his
back that pierced his organs. Id. at 257. Here, the evidence of
deliberate premeditation, the only theory of murder in the first
degree before the jury, was well short of compelling. There is
no evidence as to how or why the defendant killed the victim,
and the cause of death appears to have been a single stab wound
to the victim's neck. Secondly, in Deconinck, the "issue of
self-defense, which was the central theory of defense, was fully
aired at trial." Id. at 273. Here, the jury were deprived of
the strongest evidence of intoxication. It is true that the
defendant in Deconinck, like the defendant here, had been
drinking and consuming drugs, and that his BAC was 0.11 when
measured at the hospital, suggesting it was 0.15 or 0.16 at the
time of the killing. Id. at 259-260. However, that BAC was
approximately one-half that of the defendant in this case.
Finally, in Deconinck, there was evidence from a percipient
witness who observed the defendant escalate the level of
violence with the victim. Id. at 258-260. Here, the
precipitating cause of the murder is a mystery.
27
at 94 (whether defendant and victim had good relationship prior
to killing relevant to mitigation analysis under § 33E). The
defendant's intoxication is another factor that we consider,
particularly where it was incompletely presented as a defense
and where the prosecutor made an inappropriate statement about
it in his closing argument. See Commonwealth v. Ransom, 358
Mass. 580, 583 (1971) (alcohol having "probably played a part"
in murder proper consideration in § 33E analysis). In sum, we
conclude that a conviction of murder in the second degree is
more consonant with justice and we reduce the verdict
accordingly.
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 murder in the second degree
shall be entered, and a sentence imposed.
So ordered.