NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21-P-873

COMMONWEALTH

vs.

HAYDEN DELAFUENTE.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Hayden Delafuente, appeals from his 

convictions, after a Superior Court jury trial, of murder in the 

second degree, G. L. c. 265, § 1; assault and battery by means 

of a dangerous weapon causing serious bodily injury, G. L. 

c. 265, § 15A (c) (i); and armed assault with the intent to 

kill, G. L. c. 265, § 18 (b). We conclude that the trial judge 

acted within his discretion in admitting Marion Wilder's out-ofcourt statement for the limited purpose of bolstering the 

witness's identification of Wilder. We further conclude that 

the record does not contain indisputable facts establishing that 

defense counsel's failure to argue for a manslaughter verdict 

1 "As is our practice, we spell the defendant's name as it 

appears in the indictments." Commonwealth v. Tinsley, 487 Mass. 

380, 380 n.1 (2021).
2

was manifestly unreasonable, and that evidence of the 

defendant's statements that the police should not worry about 

how he got injured did not create a substantial risk of a 

miscarriage of justice. Accordingly, we affirm.

1. Background. On the evening of May 28, 2017, the

defendant and his friends went to the Chit Chat Lounge (Chit 

Chat)2 in downtown Haverhill. At approximately 11:52 P.M., the 

defendant left the Chit Chat. Approximately ten minutes later,

the defendant returned, this time accompanied by Wilder. When 

the defendant tried to reenter the Chit Chat, the bouncer denied 

him reentry because he was too intoxicated. Upset, the 

defendant spent over seven minutes begging the bouncer to let 

him back in. The bouncer refused. In response, the defendant 

pulled out a small blue flip knife and flashed it at the 

bouncer. The bouncer immediately grabbed the knife and put it 

in his back pocket. After hearing the commotion at the door, 

the bouncer's boss appeared and instructed the bouncer to return 

the knife to the defendant, who was standing in front of them. 

The bouncer reluctantly returned the knife, and the defendant 

left the Chit Chat, walking east toward the Barking Dog Ale 

House (Barking Dog). Within minutes of leaving the Chit Chat, 

the defendant spotted two of his friends. He excitedly 

2 The Chit Chat was a bar on Washington Street. It is now called 

Moonshiners.
3

approached them, reversed the direction he had been traveling 

in, and headed toward the Chit Chat with his friends.

That same evening, the victims' friend group, which was 

comprised of three couples, had been out drinking to celebrate 

one couple's upcoming wedding and another couple's recent 

engagement. Around midnight, the group left the Chit Chat and 

proceeded to walk down Washington Street to go to another bar. 

Shortly thereafter, the group briefly stopped for one member to 

smoke a cigarette and another to relieve herself in the alley. 

One of the victims, Matthew Sabatino, went to grab a pack of 

cigarettes from his car. The other victim, Daniel Doore, leaned 

on a traffic cone that had been left out from sidewalk 

construction.

While the victims' friend group was waiting outside of the 

Barking Dog, the defendant and his two friends walked toward 

them. The defendant appeared "very angry" and was talking 

loudly and swearing. When the defendant first approached, he

bumped into Doore, who was still leaning on the traffic cone. 

Doore glared at the defendant, and the defendant said, "what are 

you going to do about it?" Doore responded back with the same 

statement. The defendant then struck Doore. Although no one 

saw a knife, Doore was stabbed five times before falling to the 
4

ground.3 At the time, Doore had possession of a red knife.4 As 

the altercation between the defendant and Doore unfolded, 

Sabatino began walking back from his car to rejoin his friends. 

Immediately after Sabatino reached his fiancée he was fatally 

stabbed in the chest.5 No one saw Sabatino or the defendant 

holding a knife.

That evening, Francis Wolf was walking to meet up with his 

friends when he observed the defendant hit a woman.6 Wolf 

approached the defendant, grabbed his shoulder, and punched him 

in the face. The defendant fell to the ground and then fled the 

scene, walking east on Washington Street. Doore and Sabatino 

lay bleeding on the ground.

At approximately 12:30 A.M., in response to a 911 call,

police officers were dispatched to the Barking Dog. When police 

cruisers on their way to the scene drove past the defendant, he 

removed his white baseball hat and stuffed it inside his black 

sweatshirt. Before reaching the Barking Dog, an officer was 

flagged down by a man yelling that he had seen a man involved in 

the altercation. The man described the defendant's appearance

3 Doore sustained nonfatal stab wounds to his right hand, his

left arm, and his lower right back. Approximately one month 

later, Doore developed an aneurysm from the stab wound to his 

left arm, which required surgery.

4 Doore, a plumber, testified that he always carried the knife 

with him for work.

5 Sabatino died from the stab wound after ten days in a coma.

6 The woman was Doore's fiancée.
5

and indicated that he had gone down Washington Street, toward 

the post office. The officer drove in that direction and, upon

seeing that the defendant matched the description, informed the 

defendant that the officer needed to speak with him and 

instructed him to put his hands on the officer's police cruiser. 

The officer pat frisked the defendant and recovered a blue 

folding knife from the defendant's front pants pocket.

After the patfrisk, another officer arrived to assist. The 

first officer informed the defendant that he was investigating 

an incident that had occurred up the street. In response, the 

defendant spontaneously stated that he "had been attacked." The 

officer asked the defendant what happened, but the defendant did 

not elaborate. In speaking with the second officer, the 

defendant stated that he was trying to get to his girlfriend's 

house and that his ear was injured. When asked how he sustained 

the laceration on his ear, the defendant said, "forget it, 

nothing, forget it." Because the defendant was injured, the 

officers called an ambulance, and the defendant was transported 

to the hospital.

When he arrived at the hospital at approximately 1:00 A.M., 

the defendant told the emergency room physician that he "did not 

want to be treated . . . and that he was going to leave." After 

a brief competency exam, the defendant was found competent, and

he left the hospital. Shortly thereafter, officers observed the 
6

defendant walking down the street and asked him whether he was 

willing to come back to the police station to speak with them. 

The defendant agreed. When he arrived at the police station, 

the defendant fell into a deep sleep. Despite several attempts, 

officers were unable to rouse him and placed him in protective 

custody.7

After the stabbings, police recovered the defendant's white 

hat near Merrimack Street.8 The defendant's blood was found on 

his hat, his sweatshirt, and his left hand. Sabatino's blood 

was found on the blade of the defendant's knife. Doore's blood 

was found on the blade of his own knife.

2. Procedural history. The defendant was indicted on 

charges of first-degree murder of Sabatino, assault and battery 

by means of a dangerous weapon causing serious bodily injury of 

Doore, and armed assault with the intent to murder Doore. After 

a six-day trial, the jury convicted the defendant of assault and 

battery by means of a dangerous weapon causing serious bodily 

injury and the lesser-included offenses of second-degree murder 

and armed assault with the intent to kill. See Commonwealth v. 

Vick, 454 Mass. 418, 428 (2009) ("armed assault with intent to 

kill [is] a lesser included offense of armed assault with intent 

7 The jury did not hear that, when the defendant eventually woke 

up, he invoked his right to counsel.

8 Washington Street becomes Merrimack Street east of the post 

office.
7

to murder"). Concluding that, "based on his criminal record, he 

is an extremely dangerous person" who "has led a lifetime of 

violence," the judge sentenced the defendant to life in prison 

with parole eligibility after twenty-five years on the seconddegree murder conviction, with consecutive sentences of five to 

seven years on the other charges (which would run concurrent to 

each other). See G. L. c. 279, § 24; Crowell v. Massachusetts 

Parole Bd., 477 Mass. 106, 115 (2017) ("judges sentencing on 

convictions for murder in the second degree now must fix a 

minimum term as a parole eligibility date"). This appeal 

followed.

3. Admission of Wilder's statement. "Relevant evidence is 

admissible as long as the probative value of the evidence is not 

substantially outweighed by the danger of unfair prejudice." 

Commonwealth v. Reyes, 483 Mass. 65, 74 (2019), quoting 

Commonwealth v. Wall, 469 Mass. 652, 661 (2014). Accord Mass. 

G. Evid. § 403 (2022) ("court may exclude relevant evidence if 

its probative value is substantially outweighed by a danger of 

. . . unfair prejudice"). "[I]n balancing the probative value 

against the risk of prejudice, the fact that evidence goes to a 

central issue in the case tips the balance in favor of 

admission." Commonwealth v. Jaime, 433 Mass. 575, 579 (2001). 

On appeal, "[w]e review evidentiary decisions of the trial judge 
8

for an abuse of discretion." Commonwealth v. Huang, 489 Mass. 

162, 172 (2022).

Here, the judge acted within his discretion in admitting 

Wilder's out-of-court statement for the limited purpose of 

bolstering the witness's identification of the person speaking 

on the phone. See Commonwealth v. Bradshaw, 86 Mass. App. Ct. 

74, 78 (2014) (no abuse of discretion where "[t]he judge 

admitted the statement for a limited purpose"). Over defense 

counsel's objection at trial, the judge allowed Doore's fiancée

to testify that she recalled Wilder's appearance because,

immediately after Doore was stabbed, she overheard Wilder on the 

phone say, "what the fuck did you guys just do, you got to get 

out of here." The judge instructed the jury that they could 

consider this testimony "for the limited purpose of [the 

witness's] identification of the person who is on the phone and 

for no other purpose."9 See Commonwealth v. Botticelli, 51 Mass. 

App. Ct. 802, 805 (2001) (judge instructed jury "on the use of 

that testimony 'for the limited purpose of identification'").

The defendant challenges the statement as inadmissible 

hearsay. See Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 587

9 To the extent the limiting instruction could have been 

stronger, there was no objection. See Commonwealth v. Bonds, 

445 Mass. 821, 835 (2006) ("the defendant did not ask for such 

an instruction, and the instruction given was adequate to 

minimize the potential for prejudice").
9

(2013). "The hearsay rule prohibits the admission only of outof-court assertions offered to prove the truth of the matter 

asserted." Commonwealth v. Kozubal, 488 Mass. 575, 584 (2021), 

quoting Commonwealth v. Siny Van Tran, 460 Mass. 535, 550

(2011). The statement here, however, was admitted solely for 

the "nonhearsay purpose" of bolstering the witness's 

identification of the speaker on the phone. Rivera, supra at 

588. See Commonwealth v. Silanskas, 433 Mass. 678, 693 (2001) 

(statements made by victim's wife "that [her] husband was alive 

and living in a monastery and that he left the area because he 

could not find work. . . . clearly were not offered for their 

truth"). Where the judge instructed the jury that the statement 

was admitted for a limited purpose, "[w]e presume that a jury 

understand and follow limiting instructions." Commonwealth v. 

Keown, 478 Mass. 232, 243 (2017), quoting Commonwealth v. 

Donahue, 430 Mass. 710, 718 (2000).

The defendant also contends that Wilder's statement lacked 

probative value and was unfairly prejudicial. The statement was 

probative because it tended to exclude Wilder as the stabber by

reinforcing the witness's identification of Wilder as a person 

who remained on scene after Doore was stabbed. This was 

especially true where defense counsel appeared to pursue a 

third-party culprit defense throughout most of trial. "In these 

circumstances, the statement's probative value stems from the 
10

fact that the statement was made, rather than to prove the facts 

asserted within." Commonwealth v. Yat Fung Ng, 491 Mass. 247, 

259 (2023). Given that there was no evidence why Wilder was on 

the phone or whom he was speaking with, the judge reasonably 

concluded that the probative value outweighed any prejudice. 

See Commonwealth v. Shruhan, 89 Mass. App. Ct. 320, 324 (2016) 

("A fair reading of the testimony does not support a conclusion 

that the testimony was unduly prejudicial to the defendant").10

Accordingly, in light of the limiting instruction, admission of 

the statement was within the judge's discretion. See 

Commonwealth v. Walker, 460 Mass. 590, 613 (2011) (no abuse of 

discretion in admitting testimony where "the judge gave forceful 

limiting instructions").

4. Ineffective assistance of counsel. We review an 

ineffective assistance of counsel claim to determine whether 

"(1) the 'behavior of counsel [fell] measurably below that which 

might be expected from an ordinary fallible lawyer' and (2) such 

failing 'likely deprived the defendant of an otherwise 

10 Indeed, the testimony that the jury ultimately heard was more 

friendly to the defendant than the expected testimony that the 

judge ruled on. At sidebar, the Commonwealth represented that 

the witness would testify that Wilder said over the phone, "I 

know what you did," and that the witness then told Wilder, "you 

better not leave, the police are coming, you need to stay, you 

know what happened." Defense counsel did not argue below or on 

appeal that any discrepancies in the proposed testimony and the 

actual testimony should have caused the judge to reconsider his

discretionary decision.
11

available, substantial ground of defence.'" Commonwealth v. 

Tavares, 491 Mass. 362, 365 (2023), quoting Commonwealth v. 

Saferian, 366 Mass. 89, 96 (1974). "If a defendant challenges 

the 'tactical or strategic decisions[]' of trial counsel, he 

must establish them as 'manifestly unreasonable.'" Commonwealth

v. Shanley, 455 Mass. 752, 768 (2010), quoting Commonwealth v. 

Montanez, 410 Mass. 290, 295 (1991).

For the first time on appeal, the defendant claims that

trial counsel's failure to argue for a manslaughter verdict 

constituted ineffective assistance of counsel.11 An ineffective 

assistance of counsel claim "based solely on the trial record" 

is the "'weakest form' because 'it is bereft of any explanation 

by trial counsel for his actions and suggestive of strategy 

contrived by a defendant viewing the case with hindsight.'"

Commonwealth v. Diaz, 448 Mass. 286, 289 (2007), quoting 

Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). "[T]he 

preferred method for raising a claim of ineffective assistance 

of counsel is through a motion for a new trial." Commonwealth

v. Zinser, 446 Mass. 807, 810 (2006). "Relief may be afforded 

on such a claim 'when the factual basis of the claim appears 

11 The defendant has explicitly reserved his claims concerning 

whether trial counsel adequately presented a third-party culprit 

defense and whether trial counsel's decision to switch from a 

third-party culprit defense to self-defense constituted 

ineffective assistance of counsel for a future motion for a new 

trial.
12

indisputably on the trial record.'" Commonwealth v. Gorham, 472 

Mass. 112, 116 n.4 (2015), quoting Zinser, supra at 811.

On this record, defense counsel's failure to argue for a 

manslaughter verdict was not manifestly unreasonable where the

mitigating evidence was scant and the judge instructed the jury 

on self-defense, manslaughter based on reasonable provocation, 

sudden combat, and excessive force in self-defense.12 See 

Commonwealth v. Glover, 459 Mass. 836, 844 (2011) ("it was not 

manifestly unreasonable for defense counsel to proceed solely on 

a theory of self-defense"). Under the theory of manslaughter by 

reasonable provocation, "the provocation must 'come from the 

victim' and [crucially, in the instant case] be directed at the 

defendant." Commonwealth v. Gamboa, 490 Mass. 294, 310 (2022), 

quoting Commonwealth v. Yat Fung Ng, 489 Mass. 242, 258 (2022). 

Here, there was no evidence that Sabatino spoke to the defendant

or made any gestures and little evidence that he took any action 

aside from walking back to his friends and "c[o]m[ing] right" to 

12 On appeal, the defendant argues that self-defense was not a 

viable defense because there was no evidence that Sabatino 

possessed or threatened the defendant with deadly force, and 

evidence that the defendant had no reasonable opportunity to 

retreat was lacking. The purported absence of either of these 

requirements of self-defense negates the defendant's argument 

that trial counsel was ineffective for failing to argue

manslaughter based on the use of excessive force in selfdefense. See Commonwealth v. Santos, 454 Mass. 770, 775 (2009) 

("The jury cannot reach the question of excessive force in selfdefense unless they decide that the defendant has exercised his 

right of self-defense in the first place").
13

his fiancée before he was fatally stabbed. The testimony of 

Wolf that he "saw in the distance" that there were "two guys 

fighting one guy" was, at best, scant support for a theory of

reasonable provocation. Cf. Commonwealth v. Acevedo, 446 Mass. 

435, 444 (2006) (reasonable provocation where victim "looked at 

[the defendant], made a fist, and ran toward him. . . . [then] 

knocked him down, and beat him"). In this case, "the evidence 

supporting objective provocation was weak." Commonwealth v. 

Felix, 476 Mass. 750, 758 (2017).

For manslaughter based on sudden combat, the "victim . . . 

must attack the defendant or at least strike a blow against the 

defendant." Commonwealth v. Howard, 479 Mass. 52, 58 (2018), 

quoting Commonwealth v. Espada, 450 Mass. 687, 696-697 (2008). 

Given that there was no evidence that Sabatino was armed, Wolf's 

vague testimony provided little purchase for a theory of sudden 

combat. Cf. Commonwealth v. Rodriquez, 461 Mass. 100, 109

(2011) ("Although the defendant was struck first, it was the 

defendant who originally tried to engage the victim in a fight, 

first by goading him, then by attempting, unsuccessfully, to 

strike the first blow").

Furthermore, if convicted of manslaughter, the defendant 

was facing a serious sentence and, "if the jury credited the 

defendant's claim of self-defense, he would be acquitted." 

Glover, 459 Mass. at 844. See Commonwealth v. Rhodes, 482 Mass. 
14

823, 828 (2019) ("In many circumstances, it is not manifestly 

unreasonable for a defendant to forgo a possible defense with an 

eye toward a possible acquittal"). In the absence of a motion 

for a new trial and evidence from the defendant and trial 

counsel, we cannot discern whether the defendant requested that 

his counsel pursue an all-or-nothing defense. Accordingly, "the 

defendant's claim of ineffective assistance is not 

indisputable." Commonwealth v. Davis, 481 Mass. 210, 223 

(2019).

5. Evidence of the defendant's failure to explain how he 

got injured. The defendant argues that it was error to admit 

testimony concerning his failure to explain how he got injured 

in response to certain questions posed by the police. Because 

the defendant failed to object to the testimony at trial, "we 

review his claim of error for a substantial risk of a 

miscarriage of justice." Commonwealth v. McCoy, 456 Mass. 838, 

846 (2010).13

13 Invoking Commonwealth v. Mahdi, 388 Mass. 679, 696 (1983), the 

defendant argues that errors of this nature are reviewed for 

harmless error, even in the absence of an objection. We admit 

to some difficulty in understanding Mahdi, a post-Miranda

silence, first-degree murder case which purports to apply both 

the harmless error beyond a reasonable doubt standard and the 

substantial risk of a miscarriage of justice standard, see id. 

at 690, 696, 699. (Technically, the court should have applied 

the substantial likelihood of a miscarriage of justice standard,

see Commonwealth v. Roberts, 378 Mass. 116, 123 [1979], but the 

Supreme Judicial Court treated substantial risk and substantial 

likelihood as interchangeable as late as 1987, see Commonwealth
15

"While the admission of a defendant's prearrest silence may 

not violate the due process principles of the United States 

Constitution, . . . testimony related to the defendant's silence 

in response to police questioning even before Miranda warnings 

are given may be inadmissible." Commonwealth v. Beneche, 458 

Mass. 61, 73 n.13 (2010). For testimony to be inadmissible, the

defendant must show that he "'manifest[ed] an expressed 

unwillingness to continue with the interview' as a whole." 

Commonwealth v. Weidman, 485 Mass. 679, 686 (2020), quoting 

Commonwealth v. Robidoux, 450 Mass. 144, 161 (2007). "[A] 

suspect's unwillingness to answer questions on a particular 

topic does not unambiguously indicate that the suspect is 

unwilling to continue speaking with police." Commonwealth v. 

Santos, 463 Mass. 273, 285 (2012).

Here, there was no substantial risk of a miscarriage of 

justice because the defendant did not clearly manifest an intent 

v. Waters, 399 Mass. 708, 715 [1987], and did not specifically 

state the difference in the application of the two standards 

until 1988, see Commonwealth v. Glass, 401 Mass. 799, 807 

[1988].) In any event, the Supreme Judicial Court has since 

repeatedly cited Mahdi while holding that unobjected-to errors 

involving a defendant's right to remain silent are reviewed 

under the traditional substantial likelihood of a miscarriage of 

justice standard, Commonwealth v. Letkowski, 469 Mass. 603, 617

& n.22 (2014); Commonwealth v. Johnston, 467 Mass. 674, 690-693 

(2014); Commonwealth v. Beneche, 458 Mass. 61, 72 (2010), or the 

substantial risk of a miscarriage of justice standard, 

Commonwealth v. Connolly, 454 Mass. 808, 829 (2009); 

Commonwealth v. Brown, 451 Mass. 200, 209 (2008), in direct 

appeal first-degree murder cases and other cases, respectively.
16

to remain silent and instead "merely 'refus[ed] to answer 

certain questions.'" Weidman, 485 Mass. at 686, quoting 

Robidoux, 450 Mass. at 161 n.7. At trial, an officer testified 

that, after informing the defendant that he was investigating an 

incident that occurred up the street, the defendant 

spontaneously stated that he "had been attacked." The officer 

then testified that he "asked [the defendant] what happened and 

[the defendant] didn't elaborate with [him] any further." In 

speaking with a different officer, the defendant stated that he 

was trying to get to his girlfriend's house and that he was 

injured. The officer testified that when she asked the 

defendant about his injury he responded, "forget it, nothing, 

forget it." The defendant then continued to talk about his 

current girlfriend and prior girlfriends. At no point did the 

defendant invoke the right to remain silent or terminate the 

conversation. See Robidoux, supra at 161 (defendant's 

"willingness to share stories and discuss his guiding principles 

was interspersed with refusals to talk about his family. His 

unwillingness to answer questions about his family in these 

circumstances did not manifest an expressed unwillingness to 

continue with the interview"). "Because neither of the 

defendant's statements was a clear and unambiguous invocation of 

the right to remain silent, the defendant has failed to meet his 

burden." Weidman, supra at 687.
17

The defendant also challenges portions of the prosecutor's 

opening statement and closing argument that referenced evidence 

of the defendant's silence.14 Where the prosecutor intended to 

call officers who spoke with the defendant to testify at trial, 

she could describe the defendant's selective answers in her 

opening statement. See Commonwealth v. DePina, 476 Mass. 614, 

627 (2017) (opening statements "may reference anything that [a 

prosecutor] reasonably believes in good faith will be proved by 

evidence introduced" at trial). Similarly, where defense 

counsel repeatedly argued at trial that the defendant was 

cooperating with the police, "the prosecutor was entitled to 

respond to the defendant's argument by asking the jury to" 

consider why the defendant willingly told officers that he was 

attacked but then told them to forget about it. Commonwealth v. 

Rutherford, 476 Mass. 639, 644 (2017). Moreover, the prosecutor 

referenced the defendant's selective responses not to suggest

consciousness of guilt but rather to demonstrate that the 

defendant was able to make rational decisions and thus was not 

that intoxicated. See Commonwealth v. Diaz, 478 Mass. 481, 487 

(2017) ("closing arguments must be limited to the facts in 

evidence and the reasonable inferences that may be drawn 

14 Because the defendant did not object to the prosecutor's 

opening statement or closing argument, we review for a 

substantial risk of a miscarriage of justice. See Commonwealth

v. Oliveira, 74 Mass. App. Ct. 49, 56 (2009).
18

therefrom"). "In these circumstances, there is no substantial 

risk of a miscarriage of justice." Commonwealth v. Miranda, 458 

Mass. 100, 117 (2010).

Judgments affirmed.

By the Court (Sullivan, 

Sacks & Ditkoff, JJ.15),

Clerk

Entered: April 20, 2023.

15 The panelists are listed in order of seniority.