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SJC-08464
COMMONWEALTH vs. CHARLES ROBINSON.
Barnstable. May 10, 2019. - July 31, 2019.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Homicide. Evidence, Identity, Consciousness of guilt, Motive,
Prior misconduct. Jury and Jurors. Practice, Criminal,
Jury and jurors, Interrogation of jurors, Voir dire,
Argument by prosecutor, Capital case.
Indictment found and returned in the Superior Court
Department on May 1, 2000.
The case was tried before Gerald F. O'Neill, Jr., J.
Joseph F. Krowski for the defendant.
Elizabeth A. Sweeney, Assistant District Attorney, for the
Commonwealth.
BUDD, J. On the evening of February 24, 2000, Edward
Figueroa was found dead at his girlfriend's home. On August 21,
2000, the defendant was convicted of murder in the first degree
on theories of deliberate premeditation and extreme atrocity or
2
cruelty in connection with the victim's shooting death.1 After
full consideration of the trial record and the defendant's
arguments, we affirm the defendant's conviction, and we decline
to grant extraordinary relief pursuant to G. L. c. 278, § 33E.2
Background. We summarize the facts as the jury could have
found them, reserving certain details for discussion of specific
issues.
The victim, who lived with his girlfriend in Dennisport,
was friends with, and sold marijuana for, the defendant.
Because the victim's car was not registered, he had to rely on
friends to drive him to the defendant's apartment in Fall River
to pick up marijuana to sell, and sometimes had "a hard time
getting a ride." One to two weeks prior to the victim's death,
the victim received rides to Fall River from two different
friends, one of whom observed the defendant in possession of a
revolver approximately five days before the victim was killed.
On the evening of February 24, 2000, the defendant was
visiting the victim at the victim's girlfriend's home in
Dennisport. Hours before the victim was shot and killed, the
1 The defendant was also convicted of assault and battery by
means of a dangerous weapon. The indictment underlying this
conviction was placed on file.
2 The defendant filed an amended motion for a new trial, on
June 2, 2014, which remains pending in the Superior Court and is
not part of this appeal.
3
victim's girlfriend overheard the defendant berating the victim
for failing "to get [his] car on the road." Although the victim
apologized, saying, "Sorry, Dog. . . . I didn't mean to offend
you," the defendant told the victim, "I should slap your face.
I should just punch you in the mouth." Sometime after 9 P.M.,
the victim's girlfriend left the two men alone in the living
room of the apartment.
At approximately 10:15 P.M., two neighbors heard several
gunshots, and a third neighbor heard a motor vehicle speeding
away. The victim's girlfriend returned at approximately 10:30
P.M., at which time she noticed that the defendant's car was
gone and the front door to her apartment was partially open.
When she entered the living room of the apartment, she saw that
the victim was dead in a chair that had been tipped backward
onto the floor.
The victim suffered two gunshot wounds to his head,
including through the left eye and the left temple. Blood
spatter suggested that the victim was on his back on the ground
when he was shot in the head by someone positioned to the
victim's left. The wounds indicated that the firearm was
between six inches and three feet from the victim's head when it
was fired. The victim also had gunshot wounds to his left arm
and right hand, his upper chest, and his left lower leg.
4
A ballistician determined that the five projectiles
recovered from the victim's body were all .38 caliber and were
consistent with having come from the same weapon, likely a
revolver, as no shell casings were recovered from the scene.
Cell site location information (CSLI) indicated that the
defendant made cellular telephone (cell phone) calls on the
night of the murder between 11:29 P.M. and 1:41 A.M. The first
of the calls was initiated in Mattapoisett. Investigators
determined that it would have taken approximately fifty-nine
minutes to travel from the victim's home to Mattapoisett. Thus,
the defendant could have left the victim's apartment at
approximately 10:15 P.M. and arrived in Mattapoisett
approximately fourteen minutes before making his first telephone
call at 11:29 P.M.
The defendant's girlfriend initially told investigators
that the defendant had arrived at her apartment at 8 P.M. on the
night of the murder. However, at trial she testified that she
did not know what time the defendant had arrived at her home
that night. She further testified that, on the morning
following the murder, the defendant said to her, "I was here
last night, right? . . . About 8:00, right?" This caused her
to believe something was going on, and to tell the police that
he got home at 8 P.M. on February 24.
5
Weeks later, when the defendant was being held prior to
trial, he had an argument with his cellmate, during which the
defendant threatened to kill the cellmate. When the cellmate
responded that the defendant was not going to kill him because
the defendant did not have a gun, the defendant said
essentially, "That's what the other guy thought."
The defendant's theory of the case was that a third party,
Ryan Ferguson, killed the victim. On the night prior to his
death, the victim punched Ferguson several times in the head as
Ferguson sought to confront the defendant about the defendant's
attempt to flirt with Ferguson's girlfriend. Ferguson later
telephoned a friend seeking access to a firearm, and vowed to
get revenge against the victim. However, there was no evidence
that Ferguson ever obtained a firearm, and there was testimony
from witnesses that he was with others at the time that the
victim was killed.
Discussion. 1. Sufficiency of evidence. The defendant
argues that the judge erred in failing to allow his motion for a
required finding of not guilty at the close of the
Commonwealth's case. He claims that the evidence presented was
insufficient to support the conviction of murder in the first
degree because his identification as the shooter was "left to
speculation." In considering this claim, we must view the
evidence presented at trial, together with reasonable inferences
6
therefrom, in the light most favorable to the Commonwealth to
determine whether any rational jury could have found each
element of the offense beyond a reasonable doubt. See
Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). As
discussed infra, we conclude that the Commonwealth met its
burden with respect to proving beyond a reasonable doubt that
the defendant was the killer and that he acted with
premeditation as well as with extreme atrocity or cruelty.
We acknowledge that the identification evidence was
circumstantial; however, "a conviction may rest upon
circumstantial evidence alone, and the inferences a jury may
draw from the relevant evidence need only be reasonable and
possible," not "necessary or inescapable" (quotation and
citation omitted). Commonwealth v. Martin, 467 Mass. 291, 312
(2014). Here, the evidence presented would allow a rational
fact finder to conclude beyond a reasonable doubt that the
defendant shot the victim several times with his revolver and
fled to his girlfriend's home in Fall River. See Commonwealth
v. Cohen, 412 Mass. 375, 380 (1992) ("absence of direct proof by
way of an eyewitness who saw the defendant shoot the victims is
not damaging to the Commonwealth's case so long as there is
competent circumstantial evidence that establishes the
defendant's guilt").
7
Testimony was presented that allowed the jury to conclude
that the victim sold drugs for the defendant on a regular basis.
Because the victim's car was unregistered, he relied on friends
to drive him from Dennisport to where the defendant lived in
Fall River to replenish his supply, and the victim sometimes had
trouble with transportation. The jury could have inferred that
the defendant was not happy with this arrangement, given the
testimony from the victim's girlfriend that when the defendant
came to visit the victim the defendant told her that he was
there "to find out where [the victim's] head was at." The
girlfriend further testified that the defendant expressed anger
that the victim was unable to "get [his] car on the road," and
threatened the victim with physical violence.
The victim's girlfriend left the defendant and the victim
alone sometime after 9 P.M. on the night of the killing. At
approximately 10:15 P.M., neighbors heard gunshots and a motor
vehicle speeding away. When the victim's girlfriend returned at
approximately 10:30 P.M., she found the defendant and his car
gone, and the victim dead from gunshot wounds. The Commonwealth
introduced CSLI data that was consistent with its argument that
the defendant shot the victim and thereafter traveled south to
Fall River. In addition, the ballistic evidence indicated that
the bullets removed from the victim's body were all of the same
caliber and likely fired from the same weapon, a revolver; a
8
witness testified to seeing the defendant with a revolver five
days before the killing. See Commonwealth v. McGee, 467 Mass.
141, 155-156 (2014) (evidence that defendant possessed firearm
consistent with weapon used in shooting admissible to
demonstrate defendant had means to commit crime).
Moreover, the jury could infer that the evidence presented
demonstrated consciousness of guilt. See Commonwealth v.
Morris, 465 Mass. 733, 736-738 (2013) (although consciousness of
guilt alone not sufficient to sustain conviction, such evidence
may be used, along with other evidence, to establish proof of
guilt beyond reasonable doubt). The defendant's girlfriend
testified that on the morning following the murder, the
defendant said, "I was here last night, right? . . . About
8:00, right?," suggesting that he wanted investigators to
believe that he arrived at her home much earlier than he
actually did. In addition, two witnesses from the Barnstable
County house of correction testified that, weeks after the
shooting, the defendant alluded to having killed the victim.
Thus, the Commonwealth demonstrated that the defendant had
the motive, opportunity, and means to kill the victim, as well
as consciousness of guilt. See Commonwealth v. Emeny, 463 Mass.
138, 151 (2012) (evidence sufficient to convict where
Commonwealth provided evidence of motive, means, opportunity,
and consciousness of guilt). Although any one piece of evidence
9
by itself would not have provided sufficient evidence of the
defendant's identity as the person who shot the victim, taken as
a whole, the evidence supports such a finding beyond a
reasonable doubt. See Commonwealth v. Javier, 481 Mass. 268,
283 (2019), quoting Commonwealth v. Salim, 399 Mass. 227, 233
(1987) ("evidence taken together may form proof of crime where
any individual fact, taken alone, does not").
In addition to having presented sufficient evidence for the
jury to have found beyond a reasonable doubt that the defendant
was the shooter, the Commonwealth also presented sufficient
evidence that the defendant killed the victim with deliberate
meditation as well as with extreme atrocity or cruelty. To
prove murder in the first degree on a theory of deliberate
premeditation, the Commonwealth must show beyond a reasonable
doubt that the defendant intentionally caused the victim's death
and that he decided to kill after a period of reflection.
Commonwealth v. Whitaker, 460 Mass. 409, 418 (2011). "No
particular period of reflection is required for deliberate
premeditation to be found. The law recognizes that a plan to
murder may be formed within a few seconds" (citation omitted).
Commonwealth v. Chipman, 418 Mass. 262, 269 (1994). Deliberate
premeditation can be inferred from the bringing of a firearm to
the scene of the killing, Commonwealth v. Williams, 422 Mass.
111, 122-123 (1996) (defendant brought loaded revolver to
10
victim's apartment), or from the nature and manner of the
injuries inflicted, Commonwealth v. Anderson, 396 Mass. 306, 312
(1985) (defendant fired five shots, two of which struck victim).
To prove extreme atrocity or cruelty, the Commonwealth must
demonstrate one or more of the so-called Cunneen factors:
"(1) whether the defendant was indifferent to or took
pleasure in the victim's suffering; (2) the consciousness
and degree of suffering of the victim; (3) the extent of
the victim's physical injuries; (4) the number of blows
inflicted on the victim; (5) the manner and force with
which the blows were delivered; (6) the nature of the
weapon, instrument, or method used in the killing; and (7)
the disproportion between the means needed to cause death
and those employed."
Commonwealth v. Linton, 456 Mass. 534, 546 n.10 (2010). See
Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). The
Commonwealth presented evidence that the victim, who had been
struck by five bullets, was found in a chair that had tipped
backward onto the floor with gunshot wounds to his head, chest,
arm, hand, and leg. The jury could have found from this
evidence that the victim saw that he was about to be shot,
attempted to defend himself, and was propelled backward by the
initial shots fired. Further, the evidence also allowed an
inference that the shots to his head were fired at close range
after he had fallen back in his chair. Thus, when viewed in the
light most favorable to the Commonwealth, the jury could have
found at least one of the above factors. See, e.g.,
Commonwealth v. Alicea, 464 Mass. 837, 853 (2013) (extreme
11
atrocity or cruelty found where victim was shot as he turned to
flee and suffered from multiple gunshot wounds including fatal
head wound).
2. Juror issues. The defendant contends that the judge
mishandled two issues that arose in connection with two sitting
jurors. As discussed infra, we perceive no reversible error.
a. Juror no. 2-7. On the morning of the third day of
trial, juror no. 2-7, an African-American woman, expressed
concern about her bias to a court officer, who in turn notified
the judge. After conferring with the parties, the judge held a
colloquy in his chambers outside the presence of the parties.
During the colloquy, the juror explained that she "was really
angry" with some of the witnesses because she saw them as
"refus[ing]" to "avail themselves of the opportunities out
there." The juror also mentioned with disapproval a tattoo on
the neck of one of the witnesses, which, according to the juror,
was the Chinese character for "mouth," "joy to the mouth," or
"repeatedly." The juror further stated that she "tried to set
aside [her] own past and [her] own biases, but they [kept]
coming to the forefront."
When asked whether she had shared her thoughts with any of
the other jurors, the juror stated that she spoke with two other
jurors, who were educators like herself, "in general" about "the
decline of student values, morals, et cetera -- parental care,"
12
and that she had told a juror that the witness's tattoo meant
"mouth, to the mouth, or repeatedly." The entire exchange
between the juror and the judge was transcribed by the court
reporter and read back verbatim to the parties immediately after
the colloquy, and after a discussion with counsel, the judge
excused the juror. The judge declined, however, to inquire of
the remaining jurors whether they were exposed to, or had been
affected by, juror no. 2-7's biases.
i. Exclusion from juror colloquy. Although trial counsel
did not object to being excluded from the colloquy with juror
no. 2-7 at the time it took place, the defendant now argues that
the exclusion was reversible error. We disagree.
"When a judge conducts an inquiry about a consequential
matter, such as alleged serious misconduct of jurors, there is a
requirement, deriving from the constitutional right of
confrontation, that the defendant and his counsel be present."
Commonwealth v. Angiulo, 415 Mass. 502, 530 (1993), and cases
cited. However, the defendant may waive the right by not making
a request to be present for the inquiry. Commonwealth v. Dyer,
460 Mass. 728, 738 (2011), cert. denied, 566 U.S. 1026 (2012).
Here, because the defendant did not object to being
excluded from the in-chambers interview of juror no. 2-7, we
review the judge's actions for a substantial likelihood of a
miscarriage of justice. See id. at 735 n.7 (where
13
constitutional claim is waived, we nonetheless apply "extra
level of review under G. L. c. 278, § 33E"). Although trial
counsel on both sides should have been present during the
judge's colloquy with juror no. 2-7, there was no reversible
error.
The transcription of the colloquy was read back to the
parties verbatim immediately after the colloquy occurred. See
Commonwealth v. Martino, 412 Mass. 267, 286-287 (1992). The
defendant does not argue now, and did not argue at the time,
that the colloquy was defective, or that trial counsel would
have requested a different line of questioning had he been
present for the colloquy. In fact, the defendant's trial
counsel characterized the judge's questioning as "wholly
appropriate." The defendant had a "sufficient opportunity to
evaluate the problem and to arrive at a solution that [he], at
the time, thought was in his best interests," see id. at 287,
even though the judge ultimately dismissed the juror over his
objection. Thus, we discern no substantial likelihood of a
miscarriage of justice with regard to the colloquy.
ii. Voir dire of jurors for taint. The defendant also
argues that the judge should have made individual inquiry of
each juror after dismissing juror no. 2-7 to ensure that, to the
extent that certain jurors had been exposed to juror no. 2-7's
14
biases, those jurors could nevertheless be fair and impartial in
deciding the case.
"When a judge determines that the jury may have been
exposed during the course of trial to material that 'goes beyond
the record and raises a serious question of possible prejudice,'
he [or she] should conduct a voir dire of jurors to ascertain
the extent of their exposure to the extraneous material and to
assess its prejudicial effect." Commonwealth v. Francis, 432
Mass. 353, 369-370 (2000), quoting Commonwealth v. Jackson, 376
Mass. 790, 800 (1978). We review the judge's decision whether
to conduct such a voir dire for an abuse of discretion. See
Francis, supra at 370.
Here, the juror told the judge that she had discussed with
other jurors general matters, such as the decline of values and
morals among young people. The juror also said that she had
told one other juror the purported meaning of the tattoo on a
witness's neck.3 However, the juror indicated that she did not
share her views on any of the individuals or issues involved in
the case. Although a voir dire of the remaining jurors may have
been prudent, the judge was well positioned to assess juror no.
2-7's credibility, and it was within his sound discretion to
3 The defendant's trial counsel offered that none of the
possible meanings of the tattoo was "terribly pejorative either
way."
15
credit the juror's statements and to find that the facts did not
raise a "serious question of possible prejudice." See
Commonwealth v. Tennison, 440 Mass. 553, 557-558 (2003). We
conclude that there was no error.
iii. "Premature" jury discussions. The defendant contends
that the colloquy with juror no. 2-7 demonstrated that the jury
had engaged in "premature discussions" about the case prior to
the conclusion of evidence, closing arguments, and the judge's
final instructions, depriving the defendant of his
constitutional right to a fair and impartial jury. See
Commonwealth v. Philbrook, 475 Mass. 20, 30 (2016); United
States v. Jadlowe, 628 F.3d 1, 17-18 (1st Cir. 2010), cert.
denied, 563 U.S. 926 (2011), citing United States v. Resko, 3
F.3d 684, 688-689 (3d Cir. 1993). He further argues that the
judge's instructions to the jury that it was not essential to
avoid discussing the case prior to deliberations was reversible
error. We disagree.
Although "it is improper for jurors to discuss a case prior
to its submission to them (citation omitted)," Jadlowe, 628 F.3d
at 15, contrary to the defendant's assertion, there was no
indication that any members of the jury expressed a point of
view about the evidence or what the outcome of the trial should
be. See id. at 18 ("not all premature jury discussion about a
case will compromise a defendant's fair trial rights,
16
particularly where the conversation does not reflect a point of
view about the evidence or the outcome").
Here, juror no. 2-7 specifically told the judge that she
had not discussed her views on any issues or individuals
involved in the case. In fact, other than explaining the
meaning of a witness's tattoo to one juror, there is no
indication that juror no. 2-7 discussed any of the witnesses or
the case at all. Rather, she said that she had talked with two
other jurors, who were also in the education field, about the
decline of values and morals among young people generally.
Because these topics were, at best, ancillary to facts at issue
in the trial, the judge was not required to address the matter
with the remaining jurors. See Commonwealth v. Maldonado, 429
Mass. 502, 506-507 (1999), and cases cited (trial judge has
"discretion in addressing issues of extraneous influence on
jurors discovered during trial").
Nevertheless, the judge gave the following instruction to
the jury at the end of the day on which juror no. 2-7 was
dismissed:
"Members of the jury, please remember my four admonitions.
Keep an open mind. Don't discuss the case with anybody
until you have completed your jury service. Don't discuss
the case among yourselves. Some information has come to me
that the jury was discussing the matter. Again, I think
it's very important -- not essential, but very important
that you do not. Wait until you have heard the entire
case. Do not read anything about the case, look at
17
anything about the case, or listen to anything about the
case until you have completed your jury service."
It was error to instruct the jury that avoiding discussion of
the case prematurely (i.e., after all evidence had been
admitted, closing arguments, and final instructions) was "not
essential." See Jadlowe, 628 F.3d at 18. However, as there was
no indication that jurors had deliberated prematurely about the
outcome of the case prior to the instruction, there is no reason
to believe that they would do so after the judge's instruction,
especially where he told the jurors that it was "important" not
to discuss the case. We conclude that the error did not result
in a substantial likelihood of a miscarriage of justice. See
Commonwealth v. Santos, 454 Mass. 770, 772 (2009).
b. Juror no. 1-5. At the end of the third day of trial,
juror no. 1-5 informed a court officer that her son was at the
same house of correction as Ferguson, who had testified that day
and who was the individual that the defendant alleged was the
actual killer. The juror was worried that the witness could
"[g]et to her son"; the court officer observed that the juror
was "really upset." The judge did not speak with the juror
directly; instead, he asked the court officer to reassure the
juror that "there wouldn't be any problems" and "to inform the
House of Correction of the situation." However, the judge did
not "see . . . why [Ferguson] would be upset with [the juror's
18
son] or anything else." He informed the parties that the juror
did not give any indication that the situation would affect her
ability to be a juror, and the defendant's trial counsel did not
object to the judge's course of action.
The defendant argues on appeal that the judge should have
conducted a voir dire of juror no. 1-5. It is within the
judge's sound discretion to find that there exists "a
substantial risk of extraneous influences on the jury," and to
inquire accordingly. See Commonwealth v. Boyer, 400 Mass. 52,
55 (1987), and cases cited. Here, the record demonstrates that
the judge was warranted in concluding that reassuring the juror
of her son's safety and anonymity was adequate. See
Commonwealth v. Federici, 427 Mass. 740, 747 (1998), and cases
cited ("'serious question of possible prejudice' did not exist
such as to require individual voir dire"). There was no error.
3. Character evidence. The defendant argues that the
judge should not have admitted evidence over his objection that,
in the weeks prior to his death, the victim traveled to Fall
River to obtain marijuana from the defendant. According to the
defendant, sufficient context for the killing already was
provided by evidence relating to the argument between the
defendant and the victim. Furthermore, the defendant argues
that the unfair prejudice of the drug transaction evidence was
19
exacerbated by the frequency with which the prosecutor referred
to it during closing argument. We disagree.
"Evidence of a crime, wrong, or other act is not admissible
to prove a person's character in order to show that on a
particular occasion the person acted in accordance with the
character." Mass. G. Evid. § 404(b)(1) (2019). See
Commonwealth v. Helfant, 398 Mass. 214, 224 (1986), and cases
cited. However, such evidence "may be admissible for another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident." Mass. G. Evid. § 404(b)(2). See Helfant,
supra. "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." Commonwealth v. Crayton, 470 Mass. 228, 249 (2014),
and cases cited. "We give great deference to a trial judge's
exercise of discretion in deciding whether to admit a prior bad
act, and we will reverse for an abuse of discretion only where
the judge made 'a clear error of judgment in weighing the
factors . . . such that the decision falls outside the range of
reasonable alternatives'" (quotation omitted). Commonwealth v.
Veiovis, 477 Mass. 472, 482 (2017), quoting L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
20
Here, the Commonwealth offered the evidence of the
defendant's drug sales to show motive -- that is, to suggest
that the defendant was angry at the victim for having strangers
drive him to and from the drug transactions -- and the judge
instructed the jury accordingly. The jury also heard evidence
that the victim needed rides from others because his own car was
not registered; prior to the killing, the defendant was
overheard telling the victim, "That's why I told you to get the
car on the road." The judge later offered to instruct the jury
again on the proper use of prior bad acts evidence, and the
defendant declined. In sum, the drug transactions provided
additional context to the relationship between the defendant and
the victim that would not have been available from testimony
about their argument alone. Thus, we discern no error in the
judge's decision to admit the prior bad acts evidence. See
Commonwealth v. Horton, 434 Mass. 823, 828 (2001) (evidence of
defendant's drug dealing admissible to show motive and
relationship between defendant and victims). See also
Commonwealth v. Walker, 460 Mass. 590, 612-613 (2011) (same).
4. Closing arguments. The defendant argues that the
following excerpt from the Commonwealth's closing argument was
without basis in the evidence:
"[The victim] was a drug dealer for [the defendant]. He
went to Fall River to [the defendant's girlfriend's] house
on a regular basis to get drugs. [Two witnesses] tell us
21
that.[4] And [the victim] acted as a bodyguard for [the
defendant], interceding even when [the defendant] was being
challenged by the boyfriend of a girl who he decided he
wanted." (Emphasis added.)
Prosecutors are "entitled to marshal the evidence and
suggest inferences that the jury may draw from it." See
Commonwealth v. Tassinari, 466 Mass. 340, 355 (2013). The
prosecutor also may suggest "what conclusions the jury should
draw from the evidence." See Commonwealth v. Ferreira, 381
Mass. 306, 316 (1980). However, it is impermissible to
"misstate the evidence, to refer to facts not in evidence
. . . , to use evidence for a purpose other than the limited
purpose for which it was admitted, or to suggest inferences not
fairly based on the evidence." Mass. G. Evid. § 1113(b)(3)(A).
See Commonwealth v. Beaudry, 445 Mass. 577, 580 (2005). Because
the defendant did not object to the challenged argument at
trial, we review for a substantial likelihood of a miscarriage
of justice. Commonwealth v. Smith, 449 Mass. 12, 17 (2007).
We disagree with the defendant's assertion that there was
no evidence that the victim went to Fall River for drugs "on a
regular basis" and that the victim was the defendant's
"bodyguard." Two witnesses testified that they drove the victim
4 The defendant also argues that there was no evidence that
these two witnesses, who provided the victim with transportation
to Fall River, were "working together." We see nothing in the
Commonwealth's closing argument suggesting that they were.
22
to Fall River to obtain drugs from the defendant; one witness
testified that he drove the victim "a lot." There was also
testimony that when Ferguson attempted to confront the defendant
about the defendant's comments regarding Ferguson's girlfriend,
the victim attacked Ferguson while the defendant watched. The
Commonwealth's closing argument suggested fair inferences from
these facts in evidence. Thus, we conclude that the statements
challenged by the defendant were proper.
5. Review under G. L. c. 278, § 33E. Finally, the
defendant asks us to exercise our extraordinary power to grant
relief under G. L. c. 278, § 33E. We have reviewed the record
in its entirety and see no basis to set aside or reduce the
verdict of murder in the first degree.
Judgment affirmed.