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SJC-12424
COMMONWEALTH vs. MIGUEL RIVERA.
Essex. January 11, 2019. - May 14, 2019.
Present: Gants, C.J., Lenk, Gaziano, Cypher, & Kafker, JJ.
Homicide. Evidence, Admissions and confessions, Voluntariness
of statement, Hearsay, Spontaneous utterance, Intent.
Constitutional Law, Admissions and confessions,
Voluntariness of statement. Practice, Criminal, Capital
case, Motion to suppress, Admissions and confessions,
Voluntariness of statement, Hearsay, Argument by
prosecutor. Intent.
Indictment found and returned in the Superior Court
Department on February 18, 2015.
A pretrial motion to suppress evidence was heard by James
F. Lang, J., and the case was tried before Richard E. Welch,
III, J.
Elizabeth Caddick for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.
LENK, J. On the evening of February 15, 2015, Omar Mendez
confirmed his intention to end a long-term relationship with the
defendant, and began packing his bags to leave. Following a
2
heated argument between the two men, the defendant stabbed
Mendez to death in the bedroom of their apartment, before
attempting to end his own life. The defendant argued at trial
that he should be convicted of voluntary manslaughter due to
mitigating circumstances, such as heat of passion. A Superior
Court jury, however, returned a verdict of murder in the first
degree on theories of deliberate premeditation and extreme
atrocity or cruelty. In this direct appeal, he argues that the
statements he made to police while in the hospital should have
been suppressed, given his compromised medical and emotional
state at the time. The defendant also maintains that the court
should reduce the verdict to murder in the second degree,
pursuant to G. L. c. 278, § 33E, in light of certain evidentiary
issues, prosecutorial error in closing, and the spontaneity of
the stabbing, and because the evidence of premeditation at trial
was so tainted that it created a substantial likelihood of a
miscarriage of justice. We discern no error warranting a new
trial and no reason to exercise our extraordinary authority to
afford relief under G. L. c. 278, § 33E. We accordingly affirm
the conviction.
1. Background. The jury could have found the following.
The defendant and the victim had been in a romantic relationship
for approximately twenty-two years. They lived together in a
one-bedroom apartment in Lawrence. In February of 2015,
3
however, the relationship between the two men had become
strained, and the victim had been considering ending their
relationship.
The victim's niece, Bianca Mendez,1 and her mother, Maria
Valentin, maintained a close relationship with both the victim
and the defendant. One day in early February, the defendant
telephoned Valentin while she was at work. He asked whether she
had seen a post on social media by the victim in which he had
described breaking up with the defendant. Valentin had not.
The defendant then asked her whether she would be willing to
speak with the victim in an attempt to convince him to change
his mind about ending his relationship with the defendant.
Valentin agreed to do so.
Shortly thereafter, the defendant and the victim went to
Valentin's house in Pennsylvania for a weekend visit; they,
along with Bianca, were to attend a baby shower for another
relative in New York the following day. During the course of
the trip, there was significant tension between the defendant
and the victim. At one point, the defendant asked Valentin
whether she had had a chance to speak with the victim about his
decision to end his relationship with the defendant. She told
the defendant that she had tried, but to no avail; the victim
1 Because the victim and Bianca Mendez share the same
surname, we refer to Bianca by her first name.
4
apparently had "made up his mind about moving on." The
defendant also asked Bianca whether she would attempt to speak
to the victim on his behalf, but she replied that she did not
want to get involved.
The following week, Valentin and Bianca, along with
Bianca's one year old daughter, drove to Lawrence to visit the
victim and the defendant at their apartment for a long weekend.
The group went out to eat, went to a mall, and socialized
together for several days. Bianca and Valentin, however, again
felt some discomfort due to evident tension between the victim
and the defendant.
During the course of the visit, the defendant told Valentin
that he was upset because the victim had obtained a new cellular
telephone plan at the mall, to replace the plan that he and the
defendant had shared. The victim told Valentin that he was
waiting for the defendant to receive government benefits2 before
the two of them decided who would move out of their shared
apartment.
On February 15, 2015, at approximately 4:30 P.M., the
victim, Valentin, and Bianca were watching a movie in the living
room; the defendant was alone in the bedroom. The victim told
Bianca that he was pursuing a new relationship with someone he
2 The defendant was disabled.
5
had met on a social media site; he also showed her a photograph
of flowers that he had sent the man for Valentine's Day.
During the movie, the victim received a telephone call. He
left the apartment through the rear kitchen door, which opened
onto a stairwell; the victim then continued the conversation on
the basement stairs. The defendant, who had overheard the
victim speaking on the telephone, emerged from the bedroom. He
asked Bianca and Valentin if the victim was "on the phone
again," and whether he was speaking to "that motherfucker."
They told him that they did not know who had called the victim.
The defendant then followed the victim to the basement stairs.
After a few minutes, the defendant and the victim returned
upstairs, shouting at one another.3 The victim said that he did
not want to argue in front of his family, and retreated into the
bedroom to charge his telephone; the defendant followed. At
some point while the two were in the bedroom, the victim began
packing a suitcase.
3 The defendant believed that the victim had been speaking
with his new boyfriend, and asked why the victim was hurting him
in that way. Bianca used her own cellular telephone to make a
brief recording of the argument and sent it to her daughter's
father, with whom she had been exchanging text messages, to
demonstrate why she had been feeling uncomfortable during the
trip. The recording captured a conversation between the
defendant and the victim that alleged infidelity. It also
recorded Valentin's statement that she, Bianca, and the baby
would be leaving.
6
As the defendant and the victim were arguing in the
bedroom, Bianca and Valentin decided that they should leave, and
they began to gather their belongings. The defendant walked
past them and into the kitchen, where he remained for
approximately ninety seconds. He retrieved a knife from the
kitchen sink, returned to the bedroom, and closed the door
behind him. Bianca and Valentin did not see that the defendant
was carrying a large butcher's knife as he walked past them.4
Seconds later, the women heard the victim yelling
Valentin's name and pleading for the defendant to "stop."
Valentin opened the bedroom door and saw the defendant on top of
the victim. The defendant said, "I told you I was going to kill
you," as he repeatedly stabbed the victim.5 Valentin jumped on
the defendant's back in an effort to stop him, and she pleaded
with him as well. The defendant pushed Valentin off of him, and
she fell to the floor. She yelled at Bianca to call 911 and to
4 Bianca and Valentin later identified the knife as one they
had used earlier in the day to cut a piece of cake and had left
in the kitchen sink.
5 The precise words the defendant used were contested at
trial, and are a primary component of the defendant's appeal;
Valentin was impeached by the absence of similar statements in
her grand jury testimony and in one of her statements to police.
In his challenge to the credibility of Valentin's later report
that the defendant spoke those words, the defendant also points
out that Valentin's statement to a second police officer, which
also did not contain any report of the defendant having made a
statement similar to the one contested at trial, was not
introduced at trial.
7
get out of the apartment with the baby.6 Valentin then backed
out of the bedroom and, along with Bianca and the baby, fled up
the back stairs to a neighboring apartment, where they waited
for police.
A responding officer arrived within minutes of the 911
call, and another officer joined him shortly thereafter. They
entered the apartment and found the victim lying face down in a
pool of blood. He had suffered thirteen stab wounds: one to
the head, six to the chest, and six to his arms, forearms, and
hands.7 The defendant was lying next to the victim, and appeared
to have life-threatening injuries as well, which officers later
learned had been self-inflicted; the defendant had multiple stab
wounds in the chest and had sliced open his wrist. A large
knife was lying on the floor nearby. The officers secured the
knife and handcuffed the defendant; they then began
administering first aid until paramedics could reach the scene.
6 Valentin ultimately spoke with the 911 operator, as Bianca
had lost her voice due to an illness and was unable to convey
the details of the emergency over the telephone.
7 The medical examiner testified that five of the wounds
were "stab" wounds, which are deeper than they are wide; eight
others were "incise" wounds, which are longer cuts on the
surface than they are deep. The wound to the head and three of
the chest wounds were stab wounds. One of the chest wounds
pierced the victim's lung and severed his aorta. The medical
examiner opined that the victim would have died within minutes,
and that it would have been difficult to breathe as his lungs
filled with blood.
8
When paramedics arrived, they promptly determined that any
attempts to revive the victim would be futile, and focused their
efforts on the defendant. After providing emergency treatment
at the scene, they transported the defendant by ambulance to a
hospital. In the ambulance, the defendant was conscious and
responsive to questions from one of the paramedics, who was
assessing what had happened. The defendant told the paramedic
that he and the victim had been in a relationship for twenty-two
years, and that the defendant had stabbed the victim because he
had broken up with the defendant.
After arriving at one hospital, the defendant was then
transported to another hospital by ambulance. One of the
investigating officers rode in the ambulance with the defendant,
while another followed the ambulance to the hospital. The
officers provided the defendant with Miranda warnings twice
during this period: once in the ambulance, and again while at
the hospital.8 After waiving the Miranda rights, the defendant
agreed to speak with the two officers.9 He told them that he had
8 The officer who accompanied the defendant in the ambulance
provided the defendant with Miranda warnings, but did not
attempt to question him. Police reiterated the warnings later
that evening, at the hospital.
9 The motion judge determined that the defendant was unable
to sign a waiver form at the hospital due to the intravenous
lines in his arms and bandages on his wrist. The judge found
that the tone of the questioning was "conversational, low-key,
respectful, and even, for the most part, sympathetic."
9
become emotional when he heard the victim speaking to his new
boyfriend on the telephone; he then took a knife from the
kitchen and tried to reason with the victim, but ultimately
"lost it" and "blacked out."10 The defendant also explained to
the officers that he suffered from depression and anxiety, took
medication for those conditions, and felt unsafe whenever the
victim was not with him. The defendant did not remember how
many times he had stabbed the victim, but recalled that he tried
to end his own life afterward.
At trial, the theory of defense was that the defendant had
become enraged in a heat of passion following the victim's
telephone call and subsequent decision to pack his bags and
leave. The defendant requested that the jury convict him of
voluntary manslaughter because the Commonwealth had not proved,
beyond a reasonable doubt, the absence of mitigating factors,
such as reasonable provocation or heat of passion. The jury,
however, returned a verdict of guilty of murder in the first
degree on theories of deliberate premeditation and extreme
cruelty or atrocity.
2. Discussion. In this appeal, the defendant argues that
a new trial is warranted because he did not knowingly and
voluntarily waive his Miranda rights or make a voluntary
10Deoxyribonucleic acid testing of the knife matched the
defendant's profile, and did not match the victim's profile.
10
statement to police, due to his compromised medical and
emotional state in the hospital. In the alternative, he
contends that when certain evidentiary issues and errors in the
prosecution's closing are considered in concert with the
spontaneity of the attack, a reduced verdict of murder in the
second degree, pursuant to G. L. c. 278, § 33E, would be more
consonant with justice. The defendant also maintains that the
stabbing here was not more aggravated or unusual than other
instances of homicide so as to sustain a conviction on the
theory of extreme atrocity or cruelty. We address each of his
claims in turn.
a. Motion to suppress. The defendant contends that the
statements he made to police should have been suppressed because
he did not knowingly and voluntarily waive his rights, and his
statements were not voluntary, given the physical and emotional
distress he was experiencing at the hospital. Following an
evidentiary hearing, a Superior Court judge, who was not the
trial judge, denied the motion to suppress. He found that the
defendant had responded appropriately to the officers'
preliminary questions gauging his alertness, as well as to
questions about his level of pain, his medications, and his
state of orientation. The judge noted that the defendant also
responded appropriately to more substantive questions, and
evidently understood the circumstances and nature of the
11
questioning.11 The motion judge found also that the entirety of
the interview was conducted in a sympathetic and conversational
tone to accommodate the defendant's fragile state. The judge
determined that the Commonwealth had demonstrated, beyond a
reasonable doubt, that the defendant's physical and mental
condition did not negate his ability knowingly and voluntarily
to waive his rights, or to provide a statement to police.
"In reviewing a decision on a motion to suppress, we accept
the judge's subsidiary findings absent clear error, but conduct
an independent review of [his or her] ultimate findings and
conclusions of law" (quotation and citation omitted). See
Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). We
defer to the judge's determination of the weight and credibility
to be given to oral testimony presented at a motion hearing, but
we may independently review the documentary evidence before the
judge. See Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018).
Where, as here, a defendant makes statements to police
during a custodial interrogation, the Commonwealth bears the
11As to the nature of the questioning, the motion judge
also found that the defendant was able to detail the dispute
with his boyfriend, the stabbing, and the suicide attempt. He
also made statements attempting to minimize his culpability,
including repeatedly noting that he suffered from mental
illnesses and had "blacked out" during the stabbings. See
Commonwealth v. Tremblay, 480 Mass. 645, 656-658 (2018)
(defendant was responsive to police questions and even minimized
his culpability, leading to conclusion that statements were
voluntarily given).
12
burden of proving, beyond a reasonable doubt, that the
defendant's waiver of his or her Miranda rights was "voluntary,
knowing, and intelligent."12 See Commonwealth v. Clarke, 461
Mass. 336, 342 (2012); Commonwealth v. Gaboriault, 439 Mass. 84,
89 (2003). The Commonwealth also must show that any statement
made after a waiver was voluntary, as a product of the
defendant's "rational intellect and free will." See
Commonwealth v. Hoose, 467 Mass. 395, 403 (2014). "Although we
inquire separately into the voluntariness of the defendant's
waiver of Miranda rights and the voluntariness of the
statements, both inquiries require us to examine the totality of
the circumstances surrounding the making of the statements to
ensure that the defendant's will was not overborne." Id.
Relevant factors in this analysis include the manner in which
the interrogation is conducted, whether Miranda warnings were
given, the defendant's physical and mental condition, and the
defendant's individual characteristics, such as age, education,
intelligence, and emotional stability. See id. The court will
indulge all "reasonable presumption[s] against waiver."
Commonwealth v. Bradshaw, 385 Mass. 244, 267 (1982).
12It is undisputed that the defendant was in custody for
purposes of Miranda v. Arizona, 384 U.S. 436, 451 (1966). See
generally Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001).
13
We discern no error in the motion judge's findings that the
defendant's mental capacities and rational intellect were not
impaired to such a degree as to render his waiver or statements
involuntary. Although statements that are "attributable in
large measure to a defendant's debilitated condition" are not
considered to be voluntarily made (citation omitted), see
Commonwealth v. Waweru, 480 Mass. 173, 180 (2018), "[t]he fact
that a defendant may have been in a disturbed emotional state,
or even suicidal, does not automatically make statements
involuntary," see Commonwealth v. LeBlanc, 433 Mass. 549, 555
(2001). Indeed, we repeatedly have held that a defendant who is
suffering from emotional or physical distress still may provide
voluntary statements so long as he or she demonstrates an
intelligent comprehension of his or her Miranda rights and of
the circumstances. See, e.g., Commonwealth v. Bell, 473 Mass.
131, 141-142 (2015), cert. denied, 136 S. Ct. 2467 (2016)
(statements made by defendant were voluntary despite significant
burns and intoxication because he "demonstrated awareness of the
situation at the scene . . . and did not show any great
confusion"); Commonwealth v. Clark, 432 Mass. 1, 11, 12-13
(2000) (statements made by defendant shortly after he sustained
14
gunshot wound to head were voluntary, given evidence that he had
been "alert and oriented").13
Similarly, here, the defendant was not demonstrating
confusion or otherwise "acting irrationally [during the
interrogation]" while speaking with police (citation omitted).
See Commonwealth v. McNulty, 458 Mass. 305, 328 (2010).
Although the defendant was suffering from physical and emotional
injuries, the motion judge found that any medications he took
for those conditions or for his anxiety and depression did not
hinder his ability to think clearly. See Waweru, 480 Mass.
at 176-177, 181 (despite defendant's suicide attempt after
stabbing victim, his statements to psychiatrist and police were
voluntary, as he understood their questions and responded
appropriately); Bell, 473 Mass. at 142 (relevant evidence is
suspect's "rational understanding of the situation and a
13The defendant would have us distinguish his case from
others concerning an injured suspect's statement, on the ground
that police did not know whether the defendant was taking
medication, or otherwise presented with a condition that might
hinder his ability to think clearly, because the defendant's
treatment providers had refused to give police access to his
medical records. As the Health Insurance Portability and
Accountability Act, 42 U.S.C. § 1320d-6, prevents medical
professionals from disclosing a patient's medical records,
police are unable, in many instances, to ascertain a defendant's
medical information. We have not adopted an approach that looks
solely at one such factor, and decline to do so today. See
Commonwealth v. Hoose, 467 Mass. 395, 403 (2014) (requiring us
to examine "totality of the circumstances" in voluntariness
inquiry).
15
voluntary decision to speak to police"). Because the
defendant's waiver of rights and his statements to police were
knowing and voluntary, we discern no error in the denial of his
motion to suppress.
b. Relief under G. L. c. 278, § 33E. With respect to the
theory of deliberate premeditation, the defendant challenges
testimony from Bianca and Valentin about the statements he made
as he stabbed the victim. He also contends that the prosecutor
argued facts not in evidence and misstated the law regarding
issues that went to the heart of the defense. The defendant
maintains that, in light of the spontaneity of the attack, the
evidence of deliberate premeditation was so "tainted" that a
verdict on this theory cannot stand. See Commonwealth v. Glass,
401 Mass. 799, 802 n.2 (1988) (even where evidence of
premeditation is sufficient, it nonetheless may be "so tainted
by the error that it created a substantial likelihood of a
miscarriage of justice"). In this regard, as far as we can
tell, the defendant posits that the cumulative effect of the
issues warrants the exercise of our extraordinary authority
under G. L. c. 278, § 33E, to reduce the verdict to murder in
the second degree.
i. Witness testimony. The defendant argues that Bianca's
testimony about his statement to the victim ("I told you I was
going to kill you") constituted inadmissible hearsay. He also
16
claims that, because Valentin was substantially impeached with
her omission of the defendant's statement in her report to
police and to the grand jury, Valentin's trial testimony should
be given no weight. Because neither statement was objected to
at trial, we review for a substantial likelihood of a
miscarriage of justice. See Commonwealth v. Seino, 479 Mass.
463, 470 (2018).
In regard to Bianca's testimony, the defendant contends
that it constitutes impermissible hearsay because his statements
were relayed to Bianca, who does not speak Spanish fluently,
through her mother, who does. In general, "evidence based on a
chain of statements is admissible only if each out-of-court
assertion falls within an exception to the hearsay rule."
Commonwealth v. Alcantara, 471 Mass. 550, 558 (2015), quoting
Commonwealth v. McDonough, 400 Mass. 639, 643 n.8 (1987). See
Mass. G. Evid. § 805 (2019) (statements of multiple out-of-court
declarants are admissible only if each statement falls within
established hearsay exception).
Each of the statements conveyed in the chain at issue here
falls within an exception to the hearsay rule and therefore is
admissible. First, the defendant's statements are not
considered hearsay. See Commonwealth v. Bright, 463 Mass. 421,
426 n.8 (2012) (admissions of party opponent are not considered
hearsay). Second, Bianca testified that, although her mother
17
told her what the defendant had said, she had heard and
understood portions of the defendant's statement in Spanish
before her mother translated it.14 Insofar as Valentin relayed
the rest of the defendant's statement to Bianca, it was
nonetheless admissible under the spontaneous or excited
utterance exception to the rule against hearsay. See Mass.
G. Evid. § 803(2) (2019) (spontaneous utterance if event is
"sufficiently startling to render inoperative the normal
reflective thought processes of the observer, and . . . the
declarant's statement was a spontaneous reaction to the
occurrence"). Indeed, both women were percipient witnesses to
the stabbing, relaying startling information to the 911
operator, and fled the apartment in fear for their lives. Cf.
Alcantara, 471 Mass. at 558 (statements made on 911 call,
conveying information relayed by different percipient witness,
were admissible as excited utterances).
Moreover, we are unpersuaded by the contention that,
because Valentin was impeached with a prior inconsistent
statement or omission, no weight should be given to her trial
testimony. Where trial counsel carefully pursued and developed
the inconsistencies in her testimony during cross-examination,
14Specifically, Bianca testified that she understood the
Spanish words for "kill you," and that the word "motherfucker"
was uttered in English.
18
the credibility of her statements was a matter properly reserved
for the jury. See, e.g., Commonwealth v. Cannon, 449 Mass. 462,
469 n.17 (2007) (credibility of witness's statement is province
of fact finder); Commonwealth v. Triplett, 398 Mass. 561, 567
(1986) (fact finder must determine weight and credibility of
testimony).15 We thus discern no substantial likelihood of a
miscarriage of justice stemming from the admission of, or weight
given to, either witness's testimony.
ii. Prosecutor's closing argument. The defendant
challenges the propriety of the prosecutor's closing argument in
two respects. First, he contends that, by speculating about the
defendant's state of mind when he closed the bedroom door, the
prosecutor argued facts that were not supported by the evidence,
and he attempted to negate the defendant's statement that he had
"lost it" with an argument about premeditated calculation. The
defendant further argues that the prosecutor misstated the
15Although the defendant does not raise the issue, we
conclude that trial counsel's failure to further impeach
Valentin with the omission of the defendant's statement, "I told
you I was going to kill you," in her second statement to police
did not amount to ineffective assistance of counsel. Trial
counsel impeached Valentin with this omission from her grand
jury testimony, as well as through another witness, the
investigating officer, who testified that if Valentin had made
such a claim, he likely would have included it in his police
report. See Commonwealth v. Fisher, 433 Mass. 340, 357 (2001)
(counsel not ineffective in failing to impeach witness with
prior inconsistent statement where witness already was impeached
through other means).
19
applicable law by repeatedly telling the jury that sadness,
anger, hurt, and frustration do not create "justification" for
murder. The defendant contends that the repeated use of the
word "justification" implied that he was required to demonstrate
a justification for the killing in order to succeed in his
defense. Because there was no objection to either statement, we
review for a substantial likelihood of a miscarriage of justice.
See Seino, 479 Mass. at 470.
A prosecutor may not "misstate the evidence or refer to
facts not in evidence," and may not play "on the jury's sympathy
or emotions, or comment on the consequences of a verdict"
(citation omitted). See Commonwealth v. Carriere, 470 Mass. 1,
19 (2014). A prosecutor may, however, argue zealously "for a
conviction based on the evidence and on inferences that may
reasonably be drawn from the evidence." See id., quoting
Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). "Remarks made
during closing arguments are considered in the context of the
entire argument, and in light of the judge's instructions to the
jury and the evidence at trial." Commonwealth v.
Viriyahiranpaiboon, 412 Mass. 224, 231 (1992). "The absence of
an objection at trial may be viewed as 'some indication that the
tone [and] manner . . . of the now challenged aspects of the
prosecutor's argument were not unfairly prejudicial.'"
Carriere, supra, quoting Commonwealth v. Mello, 420 Mass. 375,
20
380 (1995). Moreover, "[i]nstructions may mitigate any
prejudice in the final argument." See Carriere, supra, quoting
Kozec, supra at 517.
First, the defendant claims that the prosecutor
mischaracterized his statements to police. In this regard, the
prosecutor argued:
"And [the defendant] walked back into that bedroom. He
says he was in a rage, but he thought about it enough, he
closed the door behind him. He even told the police that
he closed the door behind him because he didn't want the
police to think that [Valentin] and Bianca were just
watching him as he did this. He closed the door behind
him. And that's when he attacked [the victim]."
As best we can tell, the defendant takes issue with the portion
of that statement discussing his state of mind as he closed the
door, especially because it negated the defendant's earlier
statement in which he said he had blacked out in a rage. The
prosecutor's argument, however, is a fair inference drawn from
the evidence at trial. See Carriere, 470 Mass. at 22
(prosecutor may argue reasonable inferences grounded in
evidence). In fact, Valentin and Bianca both testified that the
defendant walked past them and closed the door behind him before
stabbing the victim. The defendant also told police, "Obviously
I closed the doors when it happened." Although perhaps
hyperbolic, as the prosecutor surely could not have known what
the defendant was thinking as he closed the door, the
prosecutor's remarks did not cross the line between fair and
21
improper argument in light of the evidence presented at trial.
Even if it were not a fair inference, the judge properly
instructed the jury on the role of closing arguments, the
reasonable inferences the jurors may draw from evidence at
trial, and their role as the sole finders of fact.16 See id. at
19. Were there any question about a misstep in the prosecutor's
statements, it did not create a substantial likelihood of a
miscarriage of justice. See id.; Mello, 420 Mass. at 380.
Next, the defendant asserts that the prosecutor misstated
the law of voluntary manslaughter and mitigating circumstances
in closing, when he repeatedly used the word "justification."
In this regard, the prosecutor argued:
"It's not unusual in a breakup that you are scared or
angry or frightened. But those things, ladies and
gentlemen, are not mitigation. They are not a
justification for what the defendant did. They are
not an excuse to commit murder. . . . [U]nhappiness
is not a justification for murder. Sadness is not a
justification for murder. . . . Nobody wants to see
somebody that they loved walk out the door. But that
is not a justification for killing somebody. . . . A
broken heart is not justification for murder."
We agree that the repeated use of the word "justification"
throughout the prosecutor's closing was more than just an
exercise in searching for a synonym for mitigation; it
Moreover, prior to closing arguments, the judge told the
16
jury: "I always instruct jurors, do not take notes on the
closing arguments of counsel. And why do I tell you that? Any
ideas?" A juror promptly responded that it was because a
closing argument "is not evidence."
22
improperly suggested to the jury that the defendant was required
to demonstrate justification for killing the victim. Apart from
being colloquially inapposite, the two words have distinct
meanings in the law. See Commonwealth v. Glover, 459 Mass. 836,
842 (2011) (noting difference between justification defense,
which could result in acquittal, and mitigation defense, such as
heat of passion, which at best yields conviction of lesser
offense of voluntary manslaughter).
Notwithstanding the inappropriate nature of these remarks,
the judge properly instructed the jury on the law of mitigation
and voluntary manslaughter in his final charge, as well as the
Commonwealth's burden of proof in these regards. See
Commonwealth v. Morales, 461 Mass. 765, 784-785 (2012)
(prosecutor's misstatement of law was error, but judge's
instructions rendered error harmless). In light of these
instructions, which we must presume were heeded, see id. at 784,
we conclude that the prosecutor's misstatements did not create a
substantial likelihood of a miscarriage of justice.
iii. Premeditation. The defendant contends also that
there was no evidence of a plan to kill here, such that a
conviction of murder in the second degree would be more
consonant with justice.17 In determining whether a conviction of
17The defendant also contends that the trial judge abused
his discretion in denying a motion to reduce the verdict
23
murder in the first degree is consonant with justice, "a primary
consideration . . . is whether the killing reflects spontaneity
rather than premeditation" (quotations and citation omitted).
See Commonwealth v. Fernandez, 480 Mass. 334, 344 (2018). "In
order to prove deliberate premeditation, the Commonwealth must
show that 'the plan to kill was formed after deliberation and
reflection.'" Id., quoting Commonwealth v. Bolling, 462 Mass.
440, 446 (2012). Although no particular length of time is
required, "the Commonwealth must demonstrate that the defendant
had the opportunity to reflect, however brief," before making a
decision to kill. See Fernandez, supra at 345 (noting that key
is "sequence of the thought process rather than the time which
is taken to think" [citation omitted]). As each case depends on
its own particular set of facts, no single factor is
determinative. Id. See Commonwealth v. Colleran, 452 Mass.
417, 431-432 (2008) (setting forth range of factors to
consider).
This case, however, does not suggest plain spontaneity or
tainted premeditation. Rather, during a quarrel with his long-
time boyfriend, the defendant left the bedroom, walked into the
pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass.
1502 (1995). For many of the same reasons discussed, we discern
no abuse of discretion in the motion judge's decision to deny
the defendant's motion to reduce the verdict. See Commonwealth
v. Perez, 477 Mass. 677, 681-682 (2017).
24
kitchen, waited approximately ninety seconds, picked up a knife,
and returned to the bedroom, closing the door behind him before
stabbing his partner to death. Cf. Fernandez, 480 Mass. at 345
(no spontaneity where defendant briefly left scene and returned
with weapon to kill victim); Commonwealth v. Watkins, 373 Mass.
849, 852 (1977) (evidence that defendant, after quarrel with
victim, went to kitchen, picked up knife, and returned to stab
victim sufficient to sustain conviction of murder in first
degree). On these facts, we discern no evidence of spontaneity
or "tainted" premeditation that, in light of the combined weight
of other purported errors, warrants the exercise of our
extraordinary authority to reduce the verdict under G. L.
c. 278, § 33E.
c. Extreme atrocity or cruelty. In regard to the second
theory on which his conviction rests, the defendant contends
that the killing in this case was not extremely atrocious or
cruel because he did not take pleasure in the victim's
suffering. He also points to data indicating that stabbings are
not a particularly "extreme" or unusual method of homicide;
indeed, the use of a stabbing or cutting instrument is the
second most common form of homicide in the United States,
following firearms. See generally United States Department of
Justice, Crime in the United States: Murder by State, Types of
Weapons, 2015, https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-
25
in-the-u.s.-2015/tables/table-20 [https://perma.cc/KH7N-TG3K].
As stabbings are so common, the defendant cautions that the
court should avoid sweeping every death by stabbing into the
category of murder in the first degree on a theory of extreme
atrocity or cruelty. Although the defendant is correct that a
killing by stabbing does not necessarily surpass the ordinary
cruelty inherent in the taking of a human life, the evidence in
this case demonstrated extreme atrocity or cruelty.
In determining whether a killing was committed with extreme
atrocity or cruelty, we look to a set of well-established
factors. See Commonwealth v. Cunneen, 389 Mass. 216, 227
(1983). These include "indifference to or taking pleasure in
the victim's suffering, consciousness and degree of suffering of
the victim, extent of physical injuries, number of blows, manner
and force with which delivered, instrument employed, and
disproportion between the means needed to cause death and those
employed." Id.
Here, the defendant stabbed the victim thirteen times,
including inflicting wounds through his head and his chest,
which caused the victim's lungs to collapse and fill with blood.
One of the wounds was more than seven inches deep. The victim's
death was not instantaneous, and he suffered several defensive
wounds. He also called out for help while he was being stabbed,
and begged the defendant to stop. Moreover, Valentin attempted
26
to intervene, but, despite her best efforts, the defendant
forcefully pushed her aside and continued stabbing the victim.
Given the number of blows, the manner of attack, the size of the
butcher's knife, and the medical expert's opinion concerning the
likely degree of suffering on the part of the victim, we
conclude that there was sufficient evidence to support the
theory of extreme atrocity or cruelty in this case. Compare
Commonwealth v. Young, 461 Mass. 198, 204 (2012) (defendant
stabbed victim four times and inflicted eight superficial cuts;
victim experienced conscious suffering before his death).
Finally, pursuant to our duty, we have carefully reviewed
the record and see no other cause to exercise our extraordinary
power to grant relief under G. L. c. 278, § 33E.
Judgment affirmed.