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SJC-10018

COMMONWEALTH vs. JOSEPH SPINUCCI.

Middlesex. April 10, 2015. - September 29, 2015.

Present: Gants, C.J., Botsford, Duffly, Lenk, & Hines, JJ.

Homicide. Assault and Battery by Means of a Dangerous Weapon.

Practice, Criminal, Instructions to jury, Hearsay, Capital 

case. Malice. Evidence, Joint venturer, Hearsay. Joint 

Enterprise. Dangerous Weapon.

Indictments found and returned in the Superior Court 

Department on September 9, 2004. 

The cases were tried before Paul A. Chernoff, J., and a 

motion for postconviction relief was heard by him.

Joseph A. Hanofee for the defendant.

Fawn D. Balliro Andersen, Assistant District Attorney, for 

the Commonwealth.

BOTSFORD, J. In June, 2006, a Middlesex County jury found 

the defendant guilty of the murder in the first degree of Ryan 

Sullivan on the theory of extreme atrocity or cruelty; he also 

was found guilty of four related offenses involving two other 
2

victims, William Tighe and Jules Stevens.1 He appeals from these 

convictions and also appeals from the denial of his posttrial 

motion for relief. He argues that the trial judge erred by

declining to instruct the jury on manslaughter on a provocation 

theory; denying his motion for a new trial on the ground that a 

manslaughter instruction on this theory clearly was required; in 

connection with the murder charge, failing to instruct the jury 

that before they could infer malice from the intentional use of 

a dangerous weapon on the part of the defendant as a joint 

venturer with Van Gustave (see note 1, supra), the jury must 

find that the defendant knew Gustave was armed with a knife; 

allowing the jury to consider hearsay evidence to establish the 

defendant's knowledge that his alleged joint venturer Gustave 

possessed a knife; and denying the defendant's motion for a 

required finding of not guilty on the two charges relating to 

the victim Stevens. He also claims that he is entitled to 

relief under G. L. c. 278, § 33E. We affirm the defendant's 

convictions and decline to grant relief pursuant to c. 278,

§ 33E. 

Background. 1. Facts. We summarize the facts the jury 

 

1 The defendant's codefendant, Van Gustave, was not tried 

together with the defendant. The Commonwealth's theory at trial 

was that the defendant and Gustave committed all of the crimes 

charged as participants in a joint venture, although the 

Commonwealth argued that the roles each played -- whether 

"principal" or "joint venturer" or both -- differed in relation 

to each crime. 
3

could have found, reserving certain details for later discussion 

in connection with the issues raised. On the night of July 1, 

2004, the city of Somerville put on a fireworks display in Trum 

Field. The defendant, Gustave, and their respective girl 

friends, Claudine Dyer and Danielle Leblanc, met before the 

fireworks and went together to the event. All four were 

drinking before and during the fireworks display; Gustave and 

Leblanc also had taken a number of Klonopin pills. As they were 

walking together toward the fireworks, Leblanc asked Gustave if 

she could hold his knife in case they ran into "anybody that I 

had problems with." Gustave answered, "No." Dyer similarly 

asked the defendant whether he had a knife and whether she could 

hold it; the defendant also answered, "No." The defendant heard 

the interchange between Gustave and Leblanc. 

The foursome watched the fireworks from a garage roof on 

Albion Street, where they drank beer and smoked marijuana; the 

defendant and Dyer each drank approximately six beers. After 

the fireworks were over, the four began to walk on Cedar Street. 

William Tighe came running down the street from the bicycle path 

near them, and Leblanc confronted him with a statement or 

question about her brother and drugs. A heated dispute between 

Leblanc and Tighe ensued, in the course of which Tighe came up 

very close to Leblanc, shouting and threatening her, Dyer then 

approached Tighe and punched him in the face, and Tighe 
4

responded by pushing Dyer down against a fence. As this

confrontation was taking place, Sullivan and Stevens came 

walking down the street and were standing behind Tighe, whom 

they knew through Tighe's younger brother. Neither Sullivan nor 

Stevens carried a weapon, and neither said anything or joined 

the dispute. After Tighe pushed Dyer, the defendant and Gustave 

began to approach him, and they both took out their knives; 

Tighe did not have a weapon. Tighe began to run down Warwick 

Street, and told Stevens and Sullivan to run; Gustave and the 

defendant ran after Tighe in pursuit. Tighe stumbled as he ran; 

the defendant caught up to him, and stabbed him with a knife in 

the back, inflicting a superficial wound. Tighe got up and 

continued to run. The defendant and Gustave ran toward Stevens 

and Sullivan. Gustave grabbed Stevens by the waist and stabbed 

him in the side; Stevens fell to the ground. The defendant did 

not attack Stevens, but connected with Sullivan. At this point, 

the entire group was on Warwick Street. The defendant stood and 

then crouched over Sullivan, with his arm repeatedly stabbing 

him in the stomach area. Gustave then joined the defendant in 

stabbing Sullivan; Sullivan appeared to be fighting against 

them. Leblanc kicked Sullivan a few times in the head as he lay 

on the ground, and Dyer also may have kicked him. 

As these events were unfolding on Warwick Street, Michael 

McCormack, Tighe's stepfather, who was in the backyard of his 
5

house on Warwick Street, heard a young male voice say, "Get off 

me. Leave me alone," and came running out of his driveway. He 

saw the defendant and Gustave bending over Sullivan and Stevens, 

who were both lying on the ground. McCormack ran toward the 

defendant and Gustave, swearing at them, and "bowled them over."

The defendant and Gustave ran away, as did Dyer and Leblanc. 

As they ran, Dyer stopped and asked Gustave and the 

defendant why "that kid" was bleeding, and Gustave responded, 

"Because we just stabbed them. We just stabbed them." The 

defendant said, three times, "I'm on probation." He also said,

"I can't believe this." Dyer was running a little behind the 

defendant, and as they ran, a resident who was out on a porch 

heard the defendant say, "Hurry the fuck up. I just stabbed 

three people, three guys, and I'm going to jail for three 

years." The defendant, Gustave, Dyer, and Leblanc ultimately 

ended up at Leblanc's house in Somerville. 

In the meantime, McCormack and his wife, Elizabeth 

McCormack, who is Tighe's mother, tried to tend to the two prone 

victims; each recognized both Sullivan and Stevens. A telephone 

call was made to 911. Sullivan and Stevens were taken to the

hospital. Sullivan died within one hour, having received at 

least seven stab wounds; he was sixteen years of age. Stevens 

lost his kidney and spent thirty days in the hospital; he was 
6

seventeen years of age.

2

2. Procedural history. On September 9, 2004, a Middlesex 

County grand jury returned indictments against the defendant and 

Gustave, charging each of them with murder in the first degree 

of Sullivan (count one); armed assault with intent to murder 

Stevens and Tighe (counts two and three); assault and battery of 

Stevens by means of a dangerous weapon, causing serious bodily 

injury (count four); and assault and battery of Tighe by means 

of a dangerous weapon (count five). The defendant's case was 

severed from Gustave's before trial. See note 5, infra. The 

jury found the defendant guilty of murder in the first degree of 

Sullivan on the theory of extreme atrocity or cruelty, as well 

as on counts four and five, charging assault and battery by 

means of a dangerous weapon of Stevens and Tighe, respectively.

3 

On the charges of armed assault with intent to murder Stevens 

and Tighe, the jury convicted the defendant of the lesser 

included offense of assault by means of a dangerous weapon.

4 The 

 

2 The defendant and Gustave were in their mid-twenties. 

3 The jury did not find the defendant guilty of deliberately 

premeditated murder. 

4 The defendant was sentenced to life imprisonment without 

parole on the murder indictment; a term of from nine to ten 

years on count four to be served concurrently with the life 

sentence; and, on count five, a term of from seven to eight 

years to be served concurrently with the life sentence and from 

and after the sentence on count four. Counts two and three were 

placed on file with the defendant's consent. 
7

defendant filed a timely appeal in this court.5

In November, 2007, the defendant filed, pro se, his 

posttrial motion in the Superior Court.6 Thereafter, the 

defendant's appeal to this court was stayed while the defendant 

pursued his posttrial motion. The trial judge heard the motion, 

taking evidence on the defendant's claim of ineffective 

assistance of counsel. After that evidentiary hearing, the 

judge denied the defendant's posttrial motion. The defendant's 

appeal from the denial of that motion has been consolidated with 

his direct appeal of his convictions.

Discussion. 1. Manslaughter instruction. The defendant 

argues that the judge committed reversible error in declining to 

instruct the jury on voluntary manslaughter as a lesser included 

offense of the murder charge. He claims that, as the judge 

"found" in ruling on the defendant's motion for a new trial, 

 

5 The parties assert that, some months after the defendant's 

trial and convictions, Gustave pleaded guilty to murder in the 

second degree and to the other charges against him. 

6 The motion is entitled, "motion for required finding of 

not guilty, or guilty of a lesser included offense, or lesser 

degree of guilt pursuant to [Mass. R. Crim. P.] 25 (b) (2)[, 378 

Mass. 896 (1979),] and reversal of the imposition of sentence of 

first degree life pursuant to [Mass. R. Crim. P.] 28[, 378 Mass. 

898 (1979)]" (posttrial motion). The trial judge treated the 

defendant's posttrial motion as a combined motion for a required 

finding of not guilty under Mass. R. Crim. P. 25 (b), and a 

motion for a new trial under Mass. R. Crim. P. 30, as appearing 

in 435 Mass. 1501 (2001). We consider the substance of the 

posttrial motion in the same manner.
8

there was evidence that Sullivan had jumped on the defendant's 

back and the defendant pushed him off.

7 He then asserts that 

this evidence would permit the jury to find that the defendant, 

in stabbing Sullivan thereafter, was acting in a heat of passion 

on reasonable provocation or induced by sudden combat. We 

disagree.8 

The defendant is correct that if any view of the evidence 

 

7 The defendant contends that the judge found as a fact that 

Danielle Leblanc saw Ryan Sullivan jump on the defendant's back. 

The judge made no such finding. In his posttrial ruling, the 

judge summarized and discussed Leblanc's trial testimony, and 

described Leblanc as having testified that she saw "a third man"

jump on Spinucci's back. The judge referred to Leblanc's 

"testimony that she saw Sullivan jump on Spinucci's back before 

Spinucci thr[e]w him off" (emphasis added). However, in her 

testimony, Leblanc never identified the man. Nor could the 

judge have made a finding that Leblanc saw Sullivan jump on the 

defendant's back, given that at the evidentiary hearing held on 

the defendant's posttrial motion, the only person who was sworn 

and testified as a witness was the defendant's trial counsel, 

whose testimony did not refer at any point to Leblanc's alleged 

observation. 

8 During the charge conference at trial, the judge rejected 

the defendant's request for a manslaughter instruction, stating 

that he did not think the evidence supported such an 

instruction. In making the request for the instruction, 

however, the defendant's counsel did not mention Leblanc's 

testimony about seeing a person jump on the defendant's back; 

counsel focused only on the defendant's alleged heat of passion 

caused by William Tighe's attack on the defendant's girl friend, 

Claudine Dyer. In his ruling on the defendant's posttrial 

motion, the judge concluded that no manslaughter instruction was 

called for because the physical contact between the defendant 

and Sullivan as described by Leblanc was not sufficient to 

warrant an instruction, even if the contact had been initiated 

by Sullivan. We conclude that an instruction on voluntary 

manslaughter was not warranted but for different reasons.
9

would permit a finding of voluntary manslaughter, an instruction 

on this lesser offense must be given. See, e.g., Commonwealth

v. Garabedian, 399 Mass. 304, 313 (1987). It is also the case 

that such an instruction cannot be refused even if the evidence 

on which the claim for a manslaughter instruction is based is 

not "of a character to inspire belief" (citation omitted). See 

id. But an instruction on voluntary manslaughter is only 

warranted "if there is evidence of provocation deemed adequate 

in law to cause the accused to lose his self-control in the heat 

of passion, and if the killing followed the provocation before 

sufficient time had elapsed for the accused's temper to cool." 

Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006), quoting 

Commonwealth v. Andrade, 422 Mass. 236, 237 (1996). The jury

also must be able to infer from the evidence "that a reasonable 

person would have become sufficiently provoked and that, in 

fact, the defendant was provoked," and that "there is a causal 

connection between the provocation, the heat of passion, and the 

killing" (quotations and citations omitted). Garabedian, supra. 

The defendant does not contend that Leblanc identified the 

person she saw jump on the defendant's back, but argues that by 

process of elimination, the unidentified person had to have been 

Sullivan, because Leblanc identified the person as a male and 

stated that the male was not McCormack; the person was not 

Tighe, because Tighe ran back to his home after being stabbed by 
10

the defendant; and the person was not Stevens because, the jury 

could find, Gustave previously had "stabbed and disabled"

Stevens. To this, the defendant adds that he already was upset 

by Tighe's attack on his girl friend that had taken place only 

seconds before, and that if the jury were to find that the 

defendant had attacked Sullivan,9 Sullivan's physical assault of 

the defendant independently provoked his emotions so that when 

the defendant attacked Sullivan, he was acting in the heat of 

passion due to provocation or sudden combat. See Commonwealth

v. Hinds, 457 Mass. 83, 90-91 (2010), quoting Commonwealth v. 

Ruiz, 442 Mass. 826, 838-839 (2004) ("provocation must come from 

the victim").

The defendant's argument is defeated by an absence of 

evidentiary support. The evidence from which the jury could 

find that the defendant stabbed Sullivan came from three 

witnesses: Dyer, McCormack, and Stevens. Each of the three 

testified to seeing the defendant standing or crouching next to 

or over Sullivan's body, inferably engaged in stabbing him.10 

 

9 At trial, the defendant's theory of the case was that the 

defendant stabbed Tighe, but played no role in Gustave's attack 

on Stevens or Sullivan -- that Gustave was acting entirely on 

his own.

10 Claudine Dyer testified that she saw the defendant and 

Gustave standing next to a person lying on the ground and 

repeatedly moving their hands downward toward the body --

testimony that permits the inference that the defendant and 

Gustave were engaged in stabbing the person -- but she did not 
11

But none of them testified to seeing anyone jump on the 

defendant's back or indeed interact physically with the 

defendant before each saw the defendant standing over and 

stabbing Sullivan. Leblanc was the sole source of evidence 

concerning someone jumping on the defendant's back. She 

testified that she saw the person jump on the defendant's back 

and saw the defendant push the person off. At no point did she 

testify to seeing any further interactions between the defendant 

and the person he had pushed off his back. Rather, all she 

stated was that she had observed the person jump on the 

defendant's back either while or soon after she kicked the body 

of a male11 lying on the ground on Warwick Street, and that this 

incident had happened around the time that she began to run down 

Warwick Street away from the body on the ground and she saw 

McCormack running on Warwick Street toward her.12 

 

identify the person as Sullivan. McCormack and Stevens both 

identified the defendant as the person they saw standing over 

and, inferably, stabbing Sullivan. 

11 Leblanc did not identify the male whom she saw lying on 

the street. 

12 Leblanc's testimony on direct examination suggested that 

she saw someone jump on the defendant's back right before 

Gustave ran by her and urged her to run and she saw Michael

McCormack running towards her. On cross-examination and 

redirect, Leblanc suggested that she witnessed the jumping 

incident after Gustave ran by and she saw McCormack. In any 

event, the reasonable inference is that Leblanc saw the person 

jump on the defendant's back right around the time that she 

began to run and saw McCormack on Warwick Street. 
12

The jury, of course, were free to believe or disbelieve, in 

whole or in part, the testimony of each witness. See, e.g.,

Commonwealth v. Hawkesworth, 405 Mass. 664, 675 (1989). 

Accordingly, the jury in theory could have credited Leblanc's

testimony that she saw the body of only one person lying on the 

ground, and that the body she was kicking was that of Stevens, 

not Sullivan, and infer that the person who jumped on the 

defendant's back was Sullivan.13 But the jury were not entitled 

to attribute to any witness, including Leblanc, a statement or 

statements that the witness did not make. See Commonwealth v. 

McInerney, 373 Mass. 136, 144 (1977). Given the state of the 

evidentiary record, with no evidence of contact between the 

defendant and Sullivan following the alleged jump on the 

defendant's back, there simply was no factual basis on which it 

could be found that the defendant stabbed Sullivan in an 

emotionally heated response to the physical interaction between 

the two. Put another way, the evidence necessary to support the 

essential causal link between any heat of passion on the 

defendant's part resulting from Sullivan's jumping on his back, 

 

13 If the jury were to make such findings, they would be 

required to reject the testimony of Dyer and McCormack that 

there were two bodies lying on Warwick Street at the time

McCormack ran onto the scene, and the testimony of McCormack and 

Stevens that one of those prone bodies belonged to Sullivan --

because obviously, if Sullivan were then on the ground, he could 

not have been the person who jumped on the defendant's back. 
13

and the defendant's stabbing of Sullivan, see Garabedian, 399 

Mass. at 313, was missing. The judge did not err in declining 

to include the charge on voluntary manslaughter in his 

instructions to the jury.

2. Instruction on malice in connection with joint venture 

murder charge. With respect to the charge of murder in the 

first degree, the Commonwealth's theory at trial was that the 

defendant and Gustave committed the crime as part of a joint 

venture. More particularly, the Commonwealth argued that the 

defendant acted as a principal by stabbing Sullivan repeatedly 

with his knife, or as a joint venturer with Gustave who himself

stabbed Sullivan repeatedly, or both. The defendant's theory at 

trial, see note 9, supra, was that Gustave alone attacked 

Sullivan -- i.e., Gustave was the principal in the crime -- and 

that the defendant did not participate in that attack or share 

Gustave's intent, but actually tried to stop Gustave from 

continuing with that attack. The judge instructed the jury that 

the Commonwealth's theory was that the defendant committed the 

crime of murder as part of a joint venture, and explained what 

the Commonwealth had to prove in order to establish that the 

defendant was guilty under this theory. He also separately 

instructed on the elements of murder in the first degree. In 

his instruction on the concept of malice in relation to murder 

under the theory of extreme atrocity or cruelty, he told the 
14

jury:

"Malice, for this theory of murder, also includes an

intent to do an act, that in the circumstances known to the

defendant, a reasonable person would have known created a 

plain and strong likelihood that death would follow.

"Under this third meaning of malice, you must 

determine whether based on what the defendant actually knew 

at the time that he acted, a reasonable person would have 

recognized that such conduct created a plain and strong 

likelihood that death would result.

"In determining whether the Commonwealth has proven 

this third meaning of malice, you must consider the 

defendant's actual knowledge of the circumstances at the 

time that he acted. Where there is evidence that a person 

brought a dangerous weapon to a scene and used the 

dangerous weapon on another, you may consider that evidence 

as relevant in proving malice" (emphasis added). 

The defendant's argument on appeal is not entirely clear, 

but appears to be that it was error for the judge to include 

this instruction concerning use of a dangerous weapon because,

insofar as the Commonwealth was proceeding on a joint venture 

theory, the jury could infer the malice necessary for murder on 

the defendant's part from Gustave's use of a dangerous weapon,

without any proof that the defendant knew Gustave was armed.

Put another way, the defendant appears to claim that in the 

joint venture context presented by the Commonwealth, it was 

necessary to instruct the jury that the Commonwealth must prove 

that the defendant knew Gustave had a knife before they might 

infer malice on the defendant's part from Gustave's intentional 

use of that knife.
15

The argument fails. First, the instruction that the judge 

gave is most reasonably understood as referring to defining 

malice directly only in connection with the defendant. Thus, 

the reference in the quoted instruction to a "person" who brings 

and uses a dangerous weapon follows directly after the direction 

that the jury must consider the defendant's "actual knowledge"

of the circumstances, suggesting that the "person" being 

referred to is the defendant. It seems highly unlikely the jury 

would interpret this instruction as indicating that if they 

found that Gustave had brought and used a dangerous weapon, they 

might infer from that finding the existence of malice on the 

defendant's part. Second, even if one were to conclude that the 

jury might understand the dangerous weapon reference in this 

instruction as meaning they could somehow consider Gustave's use 

of a dangerous weapon in considering the element of malice on 

the defendant's part, the judge's joint venture instructions --

given both as part of the judge's final charge and again in 

response to a jury question -- specifically told the jury that 

if the other person in the joint venture actually committed the 

substantive crime, the jury must find that the defendant himself 

had or shared the intent necessary for that crime, thus

indicating that the jury must consider the defendant's intent on 

its own, not as an automatic transfer of the intent of the 

coventurer. These instructions were correct.
16

The defendant contends that to prove joint venture firstdegree murder under a theory of extreme atrocity or cruelty 

where a dangerous weapon is involved, the Commonwealth should be 

required to prove that the joint venturer both knew the 

principal had a dangerous weapon and shared the principal's 

intent to commit the murder in an atrocious or cruel way. That 

is not the law. Where use of a weapon is not an element of the 

crime -- and it is not an element of murder in the first degree 

-- there is no requirement for the Commonwealth to prove 

knowledge on the part of a joint venturer that the principal was 

armed. See Commonwealth v. Rosa, 468 Mass. 231, 245 (2014), 

citing Commonwealth v. Britt, 465 Mass. 87, 100 (2013). In 

addition, in a case of joint venture first-degree murder 

committed with extreme atrocity or cruelty, malice alone defines 

the intent that the Commonwealth must prove. See Commonwealth v 

Chaleumphong, 434 Mass. 70, 79-80 (2001) (intent necessary for 

murder in first degree under theory of extreme atrocity or 

cruelty is malice alone; "[i]f the Commonwealth has no burden to 

prove that a defendant who acted alone knew that his acts were 

extremely atrocious or cruel, then it has no such burden where 

the defendant acts in a joint venture"); Commonwealth v. 

Cunneen, 389 Mass. 216, 227 (1983) (same); Commonwealth v. 

Monsen, 377 Mass. 245, 254-255 (1979) (same). Although in 

Commonwealth v. Berry, 466 Mass. 763, 777-778 (2014) (Gants, J., 
17

concurring), and Commonwealth v. Riley, 467 Mass. 799, 828 

(2014) (Duffly, J., concurring), the concurring opinions

suggested that it may be time to revisit the intent element of 

murder in the first degree committed with extreme atrocity or 

cruelty, this is not the case in which to do so. There was 

significant evidence indicating that the defendant himself was 

engaged in repeatedly stabbing the victim Sullivan, that 

Sullivan struggled to avoid the harm being inflicted, and that 

the stabbing wounds he received would have been painful. The 

judge properly instructed the jury under the principles of law 

that governed at the time; we leave to another day the question 

whether to change or modify those governing legal principles.

3. Evidence of defendant's knowledge that his joint 

venturer was armed with knife. Over the defendant's objection, 

the judge permitted Leblanc to testify that while she was 

walking with Dyer, Gustave, and the defendant to the fireworks, 

she asked Gustave for "the knife" in case she ran into anyone 

she "had problems with," and he said, "No." She also testified 

that she did not ask whether Gustave had a knife at that time, 

but assumed that he did. At the conclusion of Leblanc's 

testimony, the judge gave a limiting instruction to the jury to 

the effect that if they found that Gustave had stated that he 

possessed a knife and that the defendant had heard him make the 

statement, the jury could consider that evidence as relevant 
18

only to the issue whether the defendant knew that Gustave was 

armed with a knife.14 The defendant argues that despite the 

limiting instruction, Leblanc's testimony about her exchange 

with Gustave was admitted for its truth, and constituted 

improper hearsay evidence.

There was no error. The issue whether the defendant knew 

Gustave was carrying a knife was clearly relevant in this case, 

if for no other reason than that the Commonwealth's theory was 

that the two men were acting together as part of a joint 

venture, and that the crimes charged relating to Stevens and 

Tighe included as an element the possession or use of a 

dangerous weapon. See, e.g., Commonwealth v. Lee, 460 Mass. 64, 

69-70 (2011), citing Commonwealth v. Claudio, 418 Mass. 103, 111 

(1994), overruled on another ground by Britt, 465 Mass. at 99

(to convict defendant as joint venturer rather than principal of 

crime involving use or possession of dangerous weapon, 

Commonwealth must prove defendant knew his coventurer was armed 

 

14 The limiting instruction was actually more favorable to 

the defendant than the evidence dictated, in that there was no 

evidence before the jury that Gustave said he had a knife: 

Leblanc testified that she did not ask Gustave (and 

inferentially he did not state) whether he had a knife, but 

rather that she assumed he did. Accordingly, the jury, if they 

were following the judge's limiting instruction literally, could 

not have inferred from Leblanc's testimony that Gustave stated

he had a knife, and therefore could not have inferred that the 

defendant had knowledge that Gustave was carrying a knife. We 

will assume, however, that the jury may have understood Leblanc 

as indicating that Gustave (inferentially) stated he had a 

knife.
19

with dangerous weapon). Contrary to the defendant's suggestion,

however, the evidence was not admitted to prove that in fact 

Gustave had a knife. Contrast, e.g., Commonwealth v. Lowe, 391 

Mass. 97, 104-105, cert. denied, 469 U.S. 840 (1984) (victim's 

statements to others about facts of past events inadmissible 

under state of mind exception to hearsay rule). Rather, the

judge's limiting instruction specifically restricted the 

relevance and the jury's use of the statement to the defendant's 

state of knowledge and, as such, it was not hearsay. See 

Commonwealth v. Romero, 464 Mass. 648, 652 n.5 (2013). See also 

Mass. G. Evid. § 801(c) note (2015).

4. Sufficiency of evidence of defendant's guilt on charges 

relating to Stevens. The defendant was found guilty of assault 

and battery by means of a dangerous weapon causing serious 

bodily injury to the victim Stevens. The verdict was 

necessarily premised on a determination by the jury that the 

defendant was acting solely as a joint venturer with Gustave, 

because the undisputed evidence was that Stevens was stabbed 

only by Gustave.

As he did at the close of the Commonwealth's case when he 

moved for a required finding of not guilty, the defendant 

challenges the sufficiency of the evidence that he was guilty of 

this crime as a joint venturer. We review the evidence to 

determine whether a rational juror could conclude beyond a 
20

reasonable doubt that the defendant knowingly participated in 

the crime at issue with the requisite intent. See Commonwealth

v. Marrero, 459 Mass. 235, 247 (2011), quoting Commonwealth v. 

Zanetti, 454 Mass. 449, 468 (2009). See generally Commonwealth

v. Latimore, 378 Mass. 671, 677-678 (1979). 

The evidence permitted a reasonable juror to find that the 

defendant and Gustave were close friends; that the two had come 

to the scene together with their respective girl friends; that 

the two took out and displayed their knives at the same time to 

confront the victim Tighe; and that the two chased the three 

victims -- Tighe, Stevens, and Sullivan -- and they both joined 

in physically attacking Sullivan. The attacks on all the 

victims took place in a very short period of time and at least 

the attacks on Sullivan and Stevens took place in a 

circumscribed physical area: when the police arrived, Stevens 

and the victim Sullivan were lying on the ground within a few 

feet of each other.15 Considered as a whole, the evidence was 

sufficient to warrant the jury's guilty verdict on this charge. 

See Latimore, 378 Mass. at 677-678. The defendant's motion for 

a required finding of not guilty was properly denied.16

 

15 McCormack also testified that Sullivan and Stevens were 

lying on the ground one or two feet apart when McCormack first 

saw them. 

16 In connection with this charge relating to Stevens, the 

judge did not instruct the jury that the Commonwealth must prove 
21

5. Relief under G. L. c. 278, § 33E. The defendant argues 

that relief under G. L. c. 278, § 33E, is warranted here because 

of the prosecutor's closing argument -- the defendant claims 

improper appeals to emotion and that the prosecutor argued facts 

not in evidence, errors in the judge's instructions, and 

mitigating factors. We have thoroughly reviewed the entire 

record of this case. We conclude that the prosecutor's closing 

was not improper and find no reason that would warrant relief 

under G. L. c. 278, § 33E. 

Judgments affirmed.

 

the defendant knew that Gustave was armed with a knife. The 

instruction should have been given. See, e.g., Commonwealth v. 

Lee, 460 Mass. 64, 69-70 (2011). There was no objection raised 

at trial, however, and the question therefore is whether the 

failure of the judge to give such an instruction created a 

substantial risk of a miscarriage of justice. See Commonwealth

v. Bolling, 462 Mass. 440, 452 (2012). We agree with the 

Commonwealth that there was no such likelihood. There was 

strong circumstantial evidence that the defendant knew Gustave 

was armed with a knife at the time he stabbed Stevens, including 

the conversation between Leblanc and Gustave relating to 

Gustave's knife that the defendant could have overheard while 

they were all walking toward the fireworks; and evidence 

permitting the inference that the defendant saw Gustave holding 

a knife when they both confronted Tighe preceding Gustave's 

attack on Stevens. See Commonwealth v. Kilburn, 426 Mass. 31, 

35 & n.7 (1997), S.C., 438 Mass. 356 (2003) (knowledge that 

accomplice had weapon may be shown from circumstantial 

evidence).