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SJC-11138

COMMONWEALTH vs. JESSE CAMACHO.

Suffolk. May 8, 2015. - September 8, 2015.

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

Homicide. Firearms. Assault and Battery by Means of a 

Dangerous Weapon. Armed Assault with Intent to Murder. 

Defense of Others. Evidence, Prior violent conduct, 

Relevancy and materiality, Hearsay, Flight, Disclosure of 

evidence, Exculpatory. Practice, Criminal, Capital case, 

Discovery, Disclosure of evidence, Instructions to jury, 

Assistance of counsel, Argument by prosecutor.

Indictments found and returned in the Superior Court 

Department on April 2, 2008.

The cases were tried before Patrick F. Brady, J.; a motion 

for discovery and for a new trial, filed on January 11, 2013, 

was heard by him; and a motion for reconsideration was 

considered by him.

Elizabeth A. Billowitz for the defendant.

Zachary Hillman, Assistant District Attorney (Patrick M. 

Haggan, Assistant District Attorney, with him) for the 

Commonwealth.

CORDY, J. In the early morning hours of January, 24, 2008, 

Jeffrey Santiago was shot and killed at a night club in Chelsea. 
2

Surveillance footage and multiple eyewitnesses identified the 

defendant, Jesse Camacho, as the shooter. The defendant was 

charged with murder in the first degree, unlawfully carrying a 

firearm, assault and battery by means of a dangerous weapon, and 

armed assault with intent to murder. At trial, the Commonwealth 

proceeded with respect to the murder charge on theories of 

deliberate premeditation and extreme atrocity and cruelty. The 

defendant contended that he acted in defense of another. A jury 

found the defendant guilty on all charges.

On appeal, the defendant claims several errors, including 

error in the trial judge's rulings excluding both so-called 

Adjutant evidence of prior violent acts of the victim and his 

friends, see Commonwealth v. Adjutant, 443 Mass. 649 (2005), and 

statements the defendant made to his girl friend.

1 We find no 

reversible error arising from the defendant's claims. Further, 

we conclude that there is no basis for exercising our authority 

under G. L. c. 278, § 33E, to reduce the verdict of murder to a 

lesser degree of guilt or order a new trial. Accordingly, we 

affirm the defendant's convictions.

Background. We recite the facts in the light most 

favorable to the Commonwealth, reserving certain details for our 

 

1 The defendant also raises claims related to the judge's

jury instruction, claims of ineffectiveness of trial counsel, 

and errors in the denial of his postconviction motions for 

discovery.
3

analysis of the issues raised on appeal. On the evening of

January 23, 2008, the victim went to a nightclub (club) in 

Chelsea with his friends Toulou Thach and Gabriel Rodriguez. 

Once there, they met up with Edward Vozzella and Kevin Reis. 

The defendant went to the same club that night, arriving with 

his friend Mario Sunsin and meeting up with Marcelo Miranda, who 

had arrived with his friends Danny Diaz and another man.

The defendant, Sunsin, and Miranda were members of the Tiny 

Rascals Gang (TRG). TRG had prior problems with the Bloods, a 

rival gang, of which Rodriguez was a member. Sunsin and Miranda 

were familiar with Rodriguez, as Rodriguez and Miranda had 

previously been in a fight that resulted in Miranda's 

hospitalization. More recently, Sunsin and Miranda had thrown 

Rodriguez out of a hotel room, forcing him to walk home in the 

cold in his underwear.

On Miranda's arrival at the club earlier that night, he saw 

Rodriguez and asked him if there was going to be any trouble. 

Rodriguez replied, "No." Diaz testified that he had had a 

confrontation at the door of the club with a man he later 

identified as the victim. Eventually, the defendant and his 

group sat down to watch the club's dancers perform, while

members of the victim's group congregated by the bar. At this 

point, the victim wandered toward the club's stage and stood 
4

against a wall behind the defendant, conversing with a bouncer

and watching the dancers.

Subsequently, the victim's group left the bar area and came 

over to stand behind the defendant and his group of friends. 

The victim conversed with his friends for a few moments before 

moving away from them towards the dancers' entrance to the 

stage. Meanwhile, Rodriguez sat down next to Miranda, and the 

two conversed for a few minutes before Rodriguez went back to 

his group of friends. Miranda told the defendant's group to 

keep their heads up because "something could happen." Almost 

immediately after Rodriguez left the seat next to Miranda, 

Rodriguez threw a beer bottle at Sunsin's head.2 Sunsin then 

tackled Rodriguez, the two men fell to the ground, and some of 

the victim's group jumped on top of Sunsin and started to hit 

him.

As Sunsin tackled Rodriguez, the defendant jumped up from 

his seat, took out a firearm, "rack[ed]" it, and started firing 

at the victim's group. While the victim, Vozzella, and Joseph 

Upton (a bouncer) were attempting to flee from the gunfire, 

shots struck them.

3 The victim subsequently fell to the ground.

 

2 Mario Sunsin testified that the bottle hit him in the 

head, but there was conflicting evidence from at least one 

witness as to whether the bottle actually hit him.

3 Sunsin may also have been hit by the defendant's gunfire.
5

As the defendant chased the fleeing group out of the club, he 

approached the victim, who remained lying on the floor, and shot 

him two more times from less than two feet away.

4 The defendant 

then left the bar, attempting to shoot others as they ran. He

fled Massachusetts days after the shooting and was apprehended 

in Mexico nine months later.

Procedural history. In April, 2008, a grand jury returned 

indictments charging the defendant with murder in the first 

degree, in violation of G. L. c. 265, § 1; unlawfully carrying a 

firearm, in violation of G. L. c. 269, § 10 (a); two counts of 

assault and battery by means of a dangerous weapon, in violation 

of G. L. c. 265, § 15A; and two counts of armed assault with 

intent to murder, in violation of G. L. c. 265, § 18 (b). The

jury rejected the defendant's claim of defense of another and 

convicted him on all the indictments, including murder in the 

first degree under theories of deliberate premeditation and 

extreme atrocity and cruelty.

The defendant was sentenced to life imprisonment for murder 

in the first degree; from four to five years for unlawfully 

carrying a firearm, concurrent with his sentence for murder; 

from ten to twelve years for armed assault with intent to murder 

Upton, consecutive to his sentence for murder; and from ten to 

 

4 The medical examiner testified that these two gunshot 

wounds to the victim's chest were fatal.
6

twelve years for armed assault with intent to murder Vozzella, 

consecutive to his sentence for armed assault with intent to 

murder Upton.5 The defendant's convictions of assault and 

battery by means of a dangerous weapon were placed on file. The 

defendant filed a notice of appeal.

In January, 2013, the defendant filed a motion for 

postconviction discovery of gang-related evidence and a motion 

for a new trial. He subsequently filed an amended motion for a 

new trial, presenting an additional issue of ineffective 

assistance of counsel. On June 28, 2013, the trial judge denied 

the defendant's discovery motion and partially denied the 

defendant's amended motion for a new trial, ordering an 

evidentiary hearing solely on the issue of ineffective 

assistance of trial counsel. In January, 2014, the judge denied 

the remainder of the defendant's amended motion for a new trial, 

as well as a motion to reconsider the denial of his discovery 

motion. The defendant appealed both of these rulings.

The defendant subsequently filed a motion to reconsider the 

denial of his amended motion for a new trial, which was denied.

6 

The present case represents the defendant's consolidated appeal 

 

5 The defendant's sentences for assault with intent to 

murder were later changed to run concurrently with each other.

6 The defendant also filed a further amendment to his motion 

for a new trial, which was subsequently declared moot.
7

from his convictions as well as the denials of his motions for a 

new trial and for postconviction discovery.

Discussion. "When this court reviews a defendant's appeal 

from the denial of a motion for a new trial in conjunction with 

his direct appeal from an underlying conviction of murder 

. . . , we review both under G. L. c. 278, § 33E." Commonwealth

v. Burgos, 462 Mass. 53, 59, cert. denied, 133 S. Ct. 796 

(2012). In so doing, "[w]e first inquire if the denial of the 

motion was based on an error of law or an abuse of discretion.

. . . If so, we then must determine whether such error create[d]

a substantial likelihood of a miscarriage of justice" (citation 

omitted). Commonwealth v. Leng, 463 Mass. 779, 781 (2012). "We 

extend special deference to factual determinations made by a 

motion judge who was also the trial judge, as here" (citation 

omitted). Id.

1. Adjutant evidence. At the time of trial, the law of 

this Commonwealth, as delineated in Adjutant, 443 Mass. at 664, 

was, "where the identity of the first aggressor is in dispute

and the victim has a history of violence, . . . the trial judge 

has the discretion to admit evidence of specific acts of prior 

violent conduct that the victim is reasonably alleged to have 

initiated, to support the defendant's claim of self-defense"

(emphasis added). Such evidence "may be admitted as tending to 

prove that the victim and not the defendant was likely to have 
8

been the 'first aggressor'" because it may show "that the victim 

acted in conformance with his character for violence." 

Adjutant, 443 Mass. at 654. This evidence has "substantial 

probative value," id. at 656, when used exclusively for this

"limited purpose." Id. at 660.

Nearly three years after the defendant's convictions, we 

decided Commonwealth v. Chambers, 465 Mass. 520, 527-530 (2013), 

which clarified the breadth of admissible prior violent acts 

under Adjutant. In Chambers, we held that the definition of 

"first aggressor" included not only the person who initiated the 

confrontation, but also the person who initiated the use or 

threat of deadly force, as "resolution of both issues may assist 

the jury in deciding whether the prosecution has met its burden 

of proving that the defendant did not act in self-defense." Id.

at 529-530.

At trial, the defendant's principal defense was that he 

reasonably used force to defend Sunsin against assault. On 

appeal, he argues that the judge erred, under Adjutant, in

barring him from introducing evidence of the past violent crimes 

of the victim, Rodriguez, and Reis. Conceding that there was no 

dispute as to who was the first aggressor, the defendant 

nonetheless submits that such evidence was admissible because 

the victim, Rodriguez, and Reis were among the group that jumped 

on Sunsin. Accordingly, he contends that evidence of their 
9

violent pasts would better contextualize any conflicting 

evidence of the events and better assist the jury in determining 

whether the Commonwealth met its burden of proving that the

defendant did not act in defense of another.

The defendant further contends that this evidence is

admissible under Chambers because, although it was undisputed at 

trial that Rodriguez was the original first aggressor, it was 

disputed whether Rodriguez or the defendant escalated the 

altercation by initiating deadly force. As the defendant 

objected to the exclusion of the proffered evidence at trial, we 

review for prejudicial error.7 See Commonwealth v. Morales, 464 

Mass. 302, 313 n.19 (2013).

 

7 The Commonwealth acknowledges that the defendant objected 

to the judge's interpretation of Commonwealth v. Adjutant, 443 

Mass. 649 (2005), but argues, for the first time on appeal, that 

the defendant substantively relies on the decision of this court 

in Commonwealth v. Chambers, 465 Mass. 520, 527-530 (2013). 

Accordingly, the Commonwealth submits that the defendant's claim 

should now be reviewed under the standard of a substantial 

likelihood of a miscarriage of justice. Chambers was published 

in June, 2013, approximately six months after the defendant 

filed his original motion for a new trial (but prior to the 

filing of his amended motions). We agree with the defendant 

that the Commonwealth's position is an excessively narrow 

interpretation of issue preservation. On appeal, the defendant 

does not object to the exclusion of the proffered evidence on 

grounds wholly distinct from Adjutant, but rather cites to 

Chambers to the extent that Chambers offers a straightforward 

clarification of key language in Adjutant. The record reflects 

that the primary thrust of the defendant's Adjutant argument has 

remained consistent throughout the evolution of this case. 

Therefore, because the defendant's trial objection "sufficiently 

apprised the judge of the grounds on which it was based," and he 

continues to object to the exclusion of the evidence on these 
10

The defendant's claim that the judge erroneously excluded 

the proffered evidence under Adjutant, and as later clarified by

Chambers, is meritless, as both cases are inapplicable here. It

was undisputed at trial that Rodriguez was the first aggressor 

who started the chain of events that resulted in the victim's 

death. Accordingly, when assessed exclusively through the lens 

of Adjutant, the judge correctly determined that evidence of the 

victim's, Rodriguez's, and Reis's prior violent acts was 

irrelevant to prove who acted as the first aggressor.8 See 

Commonwealth v. Gaynor, 73 Mass. App. Ct. 71, 75 (2008) (no 

error in excluding proposed Adjutant evidence where identity of 

first aggressor not in dispute).

 

same grounds (supplemented only by a case that further 

interprets these grounds), his argument was sufficiently 

preserved. Commonwealth v. Cancel, 394 Mass. 567, 574 (1985). 

See Commonwealth v. Mullane, 445 Mass. 702, 717 n.9 (2006) 

(issue preserved where defendant only objected to breadth of 

term's definition at trial and argued for specific definition of 

same term on appeal).

8 When the judge made his initial ruling on this issue, he 

was correct to rely on the narrow definition of "first 

aggressor" as delineated in Adjutant, rather than the broader 

definition subsequently announced by Chambers. In Chambers, we 

even acknowledged that, under prior precedent, a judge 

reasonably could have believed that Adjutant evidence was 

inadmissible where it was undisputed who initiated the first 

confrontation. Chambers, 465 Mass. at 527-528. However, as 

detailed infra, Chambers also does not support the proffered 

evidence's admission, and therefore the judge's ruling was 

proper under either understanding of "first aggressor."
11

Our conclusion remains unchanged even in the wake of 

Chambers. Chambers merely expanded Adjutant to hold that 

"[w]here a victim's prior act or acts of violence demonstrate a 

propensity for violence, . . . Adjutant evidence is as relevant 

to the issue of who initiated the use or threat of deadly force 

as it is to the issue of who initiated an earlier nondeadly 

assault, and such evidence may be admitted to assist the jury 

where either issue is in dispute" (emphasis added; other 

emphasis omitted). Chambers, 465 Mass. at 529-530. 

Essentially, Chambers clarified the reach of the term "first 

aggressor," but did nothing to disturb our ruling that the 

identity of this person must remain in dispute. Id.

In Morales, 464 Mass. at 307, we explained the rationale 

underlying Adjutant: "[T]here was a greater danger that the 

exclusion of the evidence concerning the victim's violent acts 

could prejudice the defendant because the evidence might offer 

the only way for a jury to assess the validity or likelihood of 

the defendant's account of what happened" (emphasis added). 

Moreover, in Adjutant, 443 Mass. at 651, we explicitly noted 

that where "[t]here was conflicting testimony as to when the 

defendant and the victim armed themselves for their fatal 

confrontation," Adjutant evidence "may be the jury's only means 

of assessing the likelihood of the defendant's account of the 

incident." Id. at 650 n.1.
12

In contrast to cases in which Adjutant evidence was

admitted to assist the jury in assessing conflicting evidence 

regarding the identity of the first aggressor, see, e.g.,

Chambers, 465 Mass. at 525-526 (circumstances of deadly 

altercation in dispute); Commonwealth v. Pring-Wilson, 448 Mass. 

718, 723-724 (2007) (defendant's version of fight "differed 

markedly" from that of witnesses), here the significant events 

that occurred prior to the defendant shooting the victim are not 

in dispute such that the proposed evidence fits into "the narrow 

framework . . . that Adjutant posits." Morales, 464 Mass. at 

310 n.13. Surveillance footage and independent witness 

testimony alike establish that Rodriguez began the fight by 

throwing a bottle at Sunsin,9 Sunsin tackled Rodriguez, Sunsin 

and Rodriguez fell to the ground, a melee ensued where 

individuals from the victim's group jumped on Sunsin and started 

to hit him, and the defendant began firing a gun into the crowd.

Given this largely undisputed evidence, the primary 

question for the jury was not who began the altercation or 

escalated it to deadly force, but rather whether the defendant 

was legally entitled to use the force that he did in defense of 

another. We recognize that there may be a question as to which 

 

9 The defendant also suggests that Kevin Reis threw a chair 

in concert with Gabriel Rodriguez's attack on Sunsin, but the 

evidence in the record suggests that Reis did this in an effort 

to escape after the defendant began shooting.
13

act, the bottle throwing or the gun firing, escalated the fight 

into a deadly confrontation,10 but that is a wholly distinct 

question from which individual initiated each such act. Neither 

the identity of the person who threw the bottle nor the identity

of the person who fired shots is in dispute, and the limited 

sweep of Adjutant and Chambers does not authorize the 

introduction of evidence to shed light on any other question. 

See Gaynor, 73 Mass. App. Ct. at 75 (evidence of victim's prior

violent acts "immaterial" where contested issues had nothing to 

do with identity of first aggressor). Accordingly, we cannot 

say that the judge erred in excluding the proffered Adjutant

evidence.

The specific facts of this case render Adjutant and 

Chambers inapplicable for another important reason: such 

evidence is admissible only where the victim is involved in the 

altercation that leads to his death. See Adjutant, 443 Mass. at 

650; Chambers, 465 Mass. at 529. Here, there is simply no

credible evidence that the victim was involved in any of the 

events that unfolded between the time when Rodriguez threw the 

bottle and the defendant fired his weapon. No witness testified 

that the victim was involved in the melee or that the victim 

 

10 In addition to the bottle and the gun, a box cutter was 

found in the area where the fight occurred and there was 

testimony that Sunsin suffered an injury that may have come from 

a knife, but there is no evidence that this weapon was seen or 

used during the melee.
14

physically assaulted or threatened to assault Sunsin or any 

member of the defendant's group. Although the defendant 

suggests that Diaz's testimony places the victim as one of the 

men involved in the fray, a careful reading of his testimony

does not support this. Diaz never said that the victim was 

among the men who jumped on Sunsin. Rather, the most Diaz's 

testimony offers is that the victim was friends with the people 

fighting and that the victim ran from the area in which the 

fight was taking place when the defendant began firing a weapon.

Additionally, the surveillance footage reveals that the 

victim was not with either group during the skirmish. Rather, 

the victim moved toward the back of the stage and out of the 

screen almost two and one-half minutes before Rodriguez threw 

the bottle at Sunsin; he remained there until after the 

defendant began shooting, and he reentered the screen while 

attempting to flee gunfire. As there was no evidence that the 

victim played any role in the brawl or posed any threat to the 

defendant or the defendant's group, evidence of his prior 

violent conduct is not probative of why the defendant shot him. 

See Commonwealth v. Rodriquez, 461 Mass. 100, 111 (2011) (judge 

correctly excluded evidence of victim's prior violence where no 

evidence to support defendant's claim of self-defense).

The defendant also argues that the judge erred in denying 

Adjutant evidence regarding Rodriguez and Reis, as they acted in 
15

concert with the victim's group in the melee. The defendant 

cites to Pring-Wilson, 448 Mass. at 737, for the proposition 

that where there are multiple aggressors, Adjutant permits the 

admission of a third party's violent acts. The defendant's 

argument misses the mark. Pring-Wilson, 448 Mass. at 737, makes 

clear that Adjutant evidence is only admissible against a third 

party on the determination that "in the light most favorable to 

the defendant, the third party was acting in concert with or to 

assist the victim" (emphasis added). Accordingly, although it 

is true that "nothing in Adjutant precludes a judge from 

admitting evidence of prior acts of violent conduct of a 

victim's cohort," Pring-Wilson still involved a victim who was 

very much involved in the altercation that led to his death.

11 

Id. Where a defendant claims self-defense against a victim, who 

with the assistance of a third party cohort may have started the 

fight that led to the victim's death, evidence of past violence 

on the part of the victim's associate understandably may be 

probative of assessing whether the defendant had grounds to use 

deadly force against the victim. See id. at 737. Here, 

however, there was no evidence that the victim was a source of 

 

11 Moreover, in Commonwealth v. Pring-Wilson, 448 Mass. 718, 

721-725 (2007), there was no video footage available and the 

jury had heard only conflicting testimony as to whether the 

victim or his friend had initiated the fight (or whether they 

had done so jointly).
16

provocation or played any role in the events leading to his 

death, and therefore Rodriguez and Reis cannot be considered his 

"cohorts" such that evidence of their past violent conduct would 

assist the jury in evaluating why the defendant shot the victim. 

Accordingly, we conclude that there was no error in the 

exclusion of the proffered Adjutant evidence.12

2. Girl friend's testimony. At trial, defense counsel 

asked the defendant's girl friend, Evelyn Chaboudt, whether the 

defendant had explained to her why he fled Massachusetts after 

the shooting. At sidebar, the defense counsel proffered that, 

based on a previous statement, Chaboudt would testify that the 

defendant was a member of TRG; "the other kids involved were the 

Latin Kings" and "[t]hat is why [the defendant] had an issue 

with them"; and that is why the defendant fled. Defense counsel 

made no proffer for the basis of Chaboudt's knowledge of these 

facts and subsequently acknowledged that evidence regarding the 

reasons for the defendant's flight could only come from the 

 

12 Additionally, "[o]ur decision in the Adjutant case is 

specifically limited to situations where the defendant claims 

self-defense." Commonwealth v. Benoit, 452 Mass. 212, 228 

(2008). See Chambers, 465 Mass. at 527-528. Here, the 

defendant has not argued self-defense, and we decline to extend 

the Adjutant doctrine to cases involving defense of another in 

this case.
17

defendant.13 Accordingly, the judge held that these statements 

were inadmissible hearsay. On appeal, the defendant argues that 

the judge improperly excluded Chaboudt's proposed testimony, as 

it was admissible to show his state of mind when fleeing.

Evidence of flight is generally admissible as some evidence 

of consciousness of guilt, see Commonwealth v. Stuckich, 450 

Mass. 449, 453 (2008), and "consciousness of guilt, together 

with other evidence, may establish guilt." Commonwealth v. 

Epsom, 399 Mass. 254, 259 (1987). When the Commonwealth 

introduces consciousness of guilt evidence, a defendant is 

entitled to rebut it. See Commonwealth v. Hicks, 375 Mass. 274, 

277-278 (1978). In order to rebut the Commonwealth's contention 

that the defendant fled due to consciousness of guilt, evidence 

that the defendant believed the victim's group was affiliated 

with a rival gang may have been admissible to show that he did 

so out of a fear of retribution.

Here, defense counsel did not explicitly argue state of 

mind at trial, but rather consistently stressed that the thrust 

of this line of questioning was to show "the fact that 

[Chaboudt] suffered some repercussions from [the defendant's] 

being on the run" and "whether or not [Chaboudt] had trouble 

 

13 However, defense counsel also stated at sidebar, "I don't 

know whether all of [Chaboudt's] information came from [the 

defendant] or not."
18

because of [the defendant]." Read in its proper context, 

defense counsel appears to have offered this evidence precisely 

for the truth of what it asserts, namely, that the defendant and 

the victim's group truly were affiliates of rival gangs. 

Accordingly, on this record, we agree that the defendant's 

statements to Chaboudt were inadmissible hearsay and, as

evidentiary rulings "are matters entrusted to the trial judge's 

broad discretion and are not disturbed absent palpable error," 

Commonwealth v. Simpson, 434 Mass. 570, 578-579 (2001), we see 

no reason to disturb the judge's ruling. See Commonwealth v. 

Fitzpatrick, 463 Mass. 581, 602-603 (2012). To the extent that 

the defendant now argues that these statements reflected his 

state of mind, we find no substantial likelihood of a 

miscarriage of justice in their exclusion. See Commonwealth v. 

Fowler, 431 Mass. 30, 41 n.19 (2000) (issue not properly 

preserved where defendant objected on different grounds from

those pursued on appeal).

Defense counsel also tried to elicit from Chaboudt that "a 

few Latin Kings gave [her] trouble after the incident," but the 

judge ruled that this statement was irrelevant. The judge was 

well within his discretion to exclude this testimony, as it was 

not probative of any material issue in this case. It does not

shed light on the defendant's state of mind at the time of the 

shooting, see Fitzpatrick, 463 Mass. at 603, and absent 
19

admissible evidence that the defendant knew he had wronged 

members of the Latin Kings prior to his flight, it does not 

explain why he fled.

Even if it was an abuse of discretion to exclude any of the 

aforementioned statements, there is no indication that exclusion

prejudiced the defendant. "[D]eclarations out of court may be 

admissible to prove the state of mind or intent of a person when 

it is a material issue" (emphasis added). Commonwealth v. Bins, 

465 Mass. 348, 365 (2013), quoting Commonwealth v. Magraw, 426 

Mass. 589, 594 (1998). Defense counsel sought all of the 

proffered testimony in response to an inquiry as to whether the 

defendant relayed his explanation for fleeing. Although the 

Commonwealth mentioned the defendant's flight at trial, 

consciousness of guilt was not a material issue in this case, as

it was undisputed that the defendant shot the victim. As such, 

the exclusion of this evidence was not prejudicial. See 

Commonwealth v. Garrey, 436 Mass. 422, 440-441 (2002)

(improperly admitted evidence not prejudicial where only 

impacted undisputed point).

3. Posttrial discovery motion. The defendant also 

contends that the judge erred in denying his postconviction 

motion for discovery of gang-related evidence. Denial of a 

defendant's motion for posttrial discovery under Mass. R. Crim. 

P. 30 (c), as appearing in 435 Mass. 1501 (2001), is reviewed 
20

for abuse of discretion. See generally Commonwealth v. 

Martinez, 437 Mass. 84, 97-98 (2002).

The Commonwealth has a duty to disclose favorable evidence 

that it has in its possession, which could materially aid the 

defendant. See Commonwealth v. Tucceri, 412 Mass. 401, 404-405 

(1992); Brady v. Maryland, 373 U.S. 83, 87 (1963). The 

Commonwealth's failure to disclose such exculpatory evidence may 

warrant a new trial, Commonwealth v. Murray, 461 Mass. 10, 19

(2011), and where specifically requested favorable evidence is 

not disclosed the defendant "need only demonstrate that a 

substantial basis exists for claiming prejudice." Commonwealth

v. Daniels, 445 Mass. 392, 404-405 (2005), quoting Tucceri, 412 

Mass. at 412.

In order to prevail on a posttrial discovery motion, a 

defendant must demonstrate that it is reasonably likely that 

such discovery will lead to evidence possibly warranting a new 

trial. See Daniels, 445 Mass. at 407. Additionally, the 

defendant must make a prima facie showing that the evidence 

sought would have materially benefited the defense and would 

have factored into the jury's deliberations. Id., quoting 

Tucceri, 412 Mass. at 405, 414.

The defendant claims that evidence that the victim and his 

associates were gang members (requested both before and after 

trial) would have bolstered his defense of another claim and 
21

factored into the jury's deliberations. In support, he relies 

on Murray, 461 Mass. at 10-11, in which the grant of a motion 

for a new trial and postconviction discovery based on gangrelated evidence was affirmed. There, we noted that gangrelated evidence may be used to "support [a defendant's] 

contention that he was fearful for his life" and to impeach a 

witness for bias. Id. at 19-20.

However, the facts of Murray are markedly different from 

the facts of this case. There, more than two years after trial, 

twenty members of the Kendall Street Thugs (KST) were indicted 

on State and Federal drug charges, and a police lieutenant 

submitted an affidavit in Federal court characterizing the group 

as a violent drug trafficking gang. Id. at 17. The affidavit 

specifically mentioned that the victim was a member of the gang, 

id., despite the fact that several members of KST had testified 

at trial that KST was not a gang, but rather just a group of 

friends who had grown up together. Id. at 15-18.

The defendant claims that the Commonwealth withheld similar 

gang-related evidence during his trial. Although the 

Commonwealth provided the defendant with all of the evidence 

that was requested by the defendant's pretrial discovery 

motion,14 the defendant nevertheless contends that a statement 

 

14 The defendant's pretrial motion for discovery requested 

reports from the Chelsea, Revere, and State police departments 
22

made by the prosecutor at the new trial hearing15 and a summary 

of the shooting provided to the Department of Correction16

demonstrated that other gang-related evidence existed and that 

the prosecution knew of, and failed to disclose, this evidence.

The defendant has failed to make the necessary showing that 

he was entitled to postconviction discovery, as he has not

demonstrated sufficiently that other gang-related evidence

actually existed. First, at trial, Sunsin explicitly testified 

that other than Rodriguez, no rival gang members were present on

 

pertaining to any gang-related activities of Rodriguez, Reis, 

and the victim. In response, the Commonwealth provided the 

defendant with several Chelsea police department reports 

concerning these individuals. Defense counsel acknowledged that 

the Commonwealth had provided all of the information that was

requested, to the extent that it was able to do so. Moreover, 

at defense counsel's request, the Commonwealth prepared an 

indexed list of every document that it had in its possession to 

ensure that defense counsel received each item.

15 When asked to summarize the factual background of the 

case at the hearing on the defendant's motion for a new trial,

the prosecutor stated:

"Although it didn't come out at the trial itself, there was 

some underlying gang motivation where allegedly the 

defendant . . . and his friends were members of a gang 

known as TRG, which is an acronym for Tiny Rascals Gang. I 

believe Mr. Gabriel Rodriguez and his friends were more 

affiliated with the Bloods. So there was some bad blood, 

so to speak, between the two groups. There were some prior 

instances of violence between Mr. Rodriguez and Mr. 

Suns[i]n."

16 The report stated, "A verbal altercation began between 

friends of [the defendant] and a group of men affiliated with a 

rival gang. This rival group included the deceased victim 

. . . ."
23

the night of the shooting. Moreover, the prosecutor's statement 

at the new trial hearing was made during a lengthy recitation of 

the case's factual background and corroborates what was revealed 

at trial: the defendant and his friends were gang affiliated 

and Rodriguez was affiliated with a rival gang. His statement 

that Rodriguez's friends were "more affiliated with the Bloods"

is not evidence that the victim was in fact in a rival gang, but 

only suggests that the victim was "more affiliated" with 

Rodriguez than he was with the defendant's gang. Although the 

prosecutor definitively stated that the defendant and his 

friends were "members" of a gang, he made no such statement 

about the victim. Finally, the Department of Correction report 

cannot be attributed to the prosecutor.

17

The defendant's argument that the Commonwealth was required 

to turn over gang-related evidence hypothetically possessed by 

other law enforcement agencies is equally unavailing. Although

the Commonwealth has a duty to disclose exculpatory evidence, 

that duty "only applies to information in the possession of the 

prosecutor and information in the possession of persons 

sufficiently subject to the prosecutor's control" (quotation and 

citation omitted). Commonwealth v. Beal, 429 Mass. 530, 531 

(1999). If such gang-related evidence existed, which the 

 

17 This report also is inconsistent with several of the 

Commonwealth's filed pleadings.
24

defendant has failed to demonstrate, the Commonwealth was not

obligated to search other law enforcement agencies for it.18 See 

Commonwealth v. Thomas, 451 Mass. 451, 454-455 (2008) 

(information possessed by State Police colonel and registry of 

motor vehicles not within prosecutor's control; therefore,

prosecutor not required to turn over). See also Commonwealth v. 

Daye, 411 Mass. 719, 733-734 (1992) (prosecution not required to 

produce potentially exculpatory police reports because reports 

not within prosecution's control).

Based on the record before us, the defendant has not 

demonstrated sufficiently that postconviction discovery would 

have led to additional evidence warranting a new trial. Without 

a showing that other gang-related evidence actually existed, and 

that the Commonwealth withheld such evidence, we cannot say that 

it was an abuse of discretion for the judge to deny the 

defendant's motion. See Daniels, 445 Mass. at 407.

Moreover, even if such evidence did exist, the defendant 

has failed to show that it would have materially aided his 

defense or factored into the jury's deliberations. The 

defendant has not demonstrated that he had actual knowledge, on 

 

18 In response to the defendant's pretrial discovery request 

for gang-related evidence, the Commonwealth informed the 

defendant that he would have to file a motion under Mass. R. 

Crim. P. 17, 378 Mass. 885 (1979), to receive information from 

other law enforcement agencies. The defendant agreed with this 

assessment.
25

the night of January 23, 2008, that anyone in the victim's group 

(besides Rodriguez) was affiliated with a gang. Without such a 

showing, the defendant would be unable to introduce gang-related 

evidence to bolster his contention that he reasonably feared for 

Sunsin's life. See Murray, 461 Mass. at 19-20 (defendant must 

possess prior knowledge of victim's violent tendencies when 

attempting to admit such evidence to prove defendant's state of 

mind).

Similarly, despite what the defendant claims, it is 

unlikely that any evidence of gang affiliation would have 

provided substantial impeachment value (e.g., to demonstrate 

witness bias). See Murray, 461 Mass. at 20. On the record 

before us, there is no evidence that gang affiliation even 

existed, much less served as motivation for witnesses associated 

with the victim to testify falsely. See id. This is not a case 

in which members of the victim's group repeatedly denied being 

affiliated with a gang. Contrast id. at 20 & n.9 (evidence of 

group's gang affiliation could be used to impeach witnesses who 

testified that group not gang and that victim not member). 

Rather, none of the testifying witnesses associated with the 

victim was even asked, much less denied, whether they or the 

victim were affiliated with a gang. Thus, the gang-related 

evidence would have carried little, if any, impeachment value 
26

and it is unlikely that it would have factored into the jury's 

deliberations.

4. Provocation. At trial, the judge instructed the jury 

on manslaughter based on excessive force in defense of another, 

but determined that the defendant was not entitled to a 

manslaughter instruction on theories of reasonable provocation 

and sudden combat.19 The defendant objected to the judge's 

ruling and we therefore review for prejudicial error. See 

Commonwealth v. Kelly, 470 Mass. 682, 687-688 (2015).

"Voluntary manslaughter is an unlawful killing 'arising not 

from malice, but from . . . sudden [heat of] passion induced by 

reasonable provocation, sudden combat, or [the use of] excessive 

force in self-defense" (quotation and citation omitted). 

Commonwealth v. Gonzalez, 465 Mass. 672, 686 (2013). Reasonable 

provocation is "provocation that would have been likely to 

produce in an ordinary person such a state of passion, anger, 

fear, fright, or nervous excitement as would eclipse his 

capacity for reflection or restraint" (quotation and citation 

 

19 The Commonwealth's brief incorrectly states that the 

defendant does not claim that the judge erred in refusing to 

instruct the jury on sudden combat. The defendant raised this 

theory in his opening brief, noting that he was incorporating it 

within his discussion of provocation. In any event, we address 

these two theories under the singular caption of "provocation," 

as much of our case law treats them indistinguishably and 

"[s]udden combat is among those circumstances constituting 

reasonable provocation." Commonwealth v. Walczak, 463 Mass. 

808, 820 (2012) (Lenk, J., concurring). See Commonwealth v. 

Morales, 70 Mass. App. Ct. 526, 530-532 (2007).
27

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

"A jury instruction on reasonable provocation is 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" (quotations and 

citations omitted). Id. Additionally, "[a] jury must be able 

to infer that a reasonable person would have become sufficiently 

provoked, and that the defendant was in fact provoked." 

Commonwealth v. Pierce, 419 Mass. 28, 31 (1994). "Insults and 

quarreling alone cannot provide a reasonable provocation"

(quotation and citation omitted). Commonwealth v. Callahan, 401 

Mass. 627, 632 (1988). Although "[a]ll reasonable inferences 

are drawn in favor of the defendant in deciding whether a 

manslaughter instruction was supported by the evidence," 

Commonwealth v. Nichypor, 419 Mass. 209, 216 (1994), it is error 

to give a manslaughter instruction without some supporting 

evidence of that crime. Commonwealth v. Walden, 380 Mass. 724,

727 (1980).

Critically, "[i]t is well established that 'provocation 

must come from the victim'" (emphasis added). Acevedo, 446 

Mass. at 444, quoting Commonwealth v. Ruiz, 442 Mass. 826, 838-

839 (2004). See generally Commonwealth v. Nelson, 468 Mass. 1, 

14 (2014); Commonwealth v. LeClair, 445 Mass. 734, 740 (2006)
28

(reaffirming "well-established rule that evidence of provocation 

by a third party, rather than the victim of a homicide, is 

insufficient to warrant a voluntary manslaughter instruction"). 

We see no reason to depart from this rule. The evidence is 

insufficient to conclude that the victim was one of the 

aggressors in the fray or did anything to reasonably provoke the 

actions that led to his death. See Commonwealth v. Benson, 453 

Mass. 90, 95 (2009) (no provocation instruction where 

insufficient evidence for jury reasonably to infer that "an 

action of the victim trigger[ed] a sudden loss of self-control 

in the defendant"). Neither the surveillance footage nor 

witness testimony demonstrates that the victim assaulted Sunsin. 

Although the defendant continues to rely heavily on Diaz's 

testimony, where Diaz never identified the victim as being 

involved in the actual physical altercation, such an inference 

would be nothing more than speculation. See Commonwealth v.

Masello, 428 Mass. 446, 450 (1998) (no instruction warranted 

where only "scant evidence that the victim had attacked the 

defendant or struck any blows"); Gonzalez, 465 Mass. at 686 (no 

provocation instruction where defendant physically struggled 

with family and friends of victim, but contention that victim 

took part in altercation was "mere speculation").

The defendant alternatively contends in a footnote that

even if the victim was not involved in the fray, the jury could 
29

have found him guilty of manslaughter if he accidentally shot 

the victim while attempting to shoot Rodriguez or another melee 

participant. He grounds this argument in a footnote in LeClair, 

445 Mass. at 743 n.3, citing W.R. LaFave & A.W. Scott, Jr., 

Criminal Law § 76, at 582 (1972), in which we stated that 

"[c]ommentators also observe that, in circumstances where one 

(A) who is reasonably and actually provoked by another person 

(B) into a passion to kill B, shoots at B but accidentally hits 

and kills an innocent bystander, A's crime is voluntary 

manslaughter." Although we agree with this general proposition, 

it has no applicability to the present case. Here, the 

defendant inflicted two fatal shots on the victim not 

accidentally during the melee, but intentionally after it ended, 

while the victim lay on the floor, wounded and unarmed. The

judge did not abuse his discretion in refusing to give the 

requested instructions.

5. Ineffective assistance of counsel. The defendant also 

contends that defense counsel rendered ineffective assistance by

misapprehending the strength of the Commonwealth's case. 

Specifically, he argues that defense counsel mistakenly advised 

him against accepting a plea to murder in the second degree as a 

direct result of defense counsel's insufficient review of

certain items provided in discovery.
30

To prevail on an ineffective assistance of counsel claim a 

defendant must demonstrate "serious incompetency of counsel 

(behavior falling measurably below that which might be expected 

from an ordinary fallible lawyer) and prejudice that, in this

context, means a 'reasonable probability' that 'but for 

counsel's unprofessional errors, the result of the proceeding 

would have been different.'" Commonwealth v. Mahar, 442 Mass. 

11, 15 (2004), quoting Strickland v. Washington, 466 U.S. 668, 

694 (1984). To demonstrate that ineffective assistance of 

counsel caused prejudice in the context of a plea deal, a 

defendant "must show the outcome of the plea process would have 

been different with competent advice." Lafler v. Cooper, 132 

S. Ct. 1376, 1384 (2012). Moreover, G. L. c. 278, § 33E,

provides a "standard . . . that is more favorable to a defendant 

than is the constitutional standard for determining 

ineffectiveness of counsel" (quotation and citation omitted).

Commonwealth v. Britto, 433 Mass. 596, 601-602 (2001).

The defendant first claims that defense counsel 

underestimated the Commonwealth's case by failing to review the 

club's surveillance footage before closing argument. At the 

hearing on the motion for a new trial, defense counsel answered 

affirmatively when asked if he "essentially" saw the 

surveillance footage for the "first time" during closing 

argument. However, defense counsel also explained, "I had not 
31

seen some of the things that [the prosecutor] pointed out while 

doing his closing argument. He used the video and I [had] seen 

the video twice, but I did not see what he was pointing out 

prior to his doing so."20

Additionally, at trial, when the still images of the 

surveillance footage were entered as exhibits, defense counsel 

explicitly stated several times that he had seen all of them. 

Specifically, he said, "Yes, I did look at [the still 

photographs] this morning and I've seen them before . . . . 

Like I say, I've seen them all before." Further, he stated,

"I've seen all of these photos and I've seen the videos . . . ." 

Therefore, it appears that defense counsel did not mean to 

suggest that he literally had not viewed the footage prior to 

closing argument but, rather, that only then did he see how the 

Commonwealth intended to use it in support of its position.

The defendant next claims that defense counsel failed to 

review Diaz's video statement taken on the night of the shooting

meaningfully. At trial, defense counsel stated that he did not 

view this statement until the night before Diaz's crossexamination.

21 Although defense counsel certainly should have 

 

20 Even the judge noted that there was something "powerfully 

persuasive about the manner in which [the prosecutor] 

interspersed his oral argument with scenes from the video."

21 The record suggests that defense counsel most likely 

received the video on a disk from the Commonwealth, but either 
32

reviewed Diaz's statement in a more timely fashion, any delay 

was mitigated by the fact that he did view it and was therefore 

able to adequately prepare and conduct an effective crossexamination. See Commonwealth v. Wadlington, 467 Mass. 192, 201 

(2014) (failure to review witness's video statement until eve of 

trial not ineffective assistance as counsel effectively used 

prior inconsistency contained in video statement during crossexamination). Indeed, before Diaz's cross-examination began 

defense counsel stated, "As a matter of fact [Diaz] sa[id]

already what I thought and what I had hoped that he would say. 

. . ." Moreover, Diaz's video statement was largely consistent 

with his grand jury testimony, which defense counsel had 

reviewed.22 Therefore, it is unlikely that viewing the video any 

earlier would have altered defense counsel's strategy.

Ultimately, the defendant contends that had defense counsel 

properly reviewed all of the evidence, he would have realized a 

murder in the first degree conviction was likely and therefore 

would have advised the defendant to accept the plea deal. In 

 

misplaced it or was unable to view it. Nevertheless, the judge 

acknowledged this issue and ensured that defense counsel would 

have an opportunity to view the video and adequately prepare for 

cross-examination.

22 The defendant does not assert that Diaz's grand jury 

testimony differed significantly from his video statement, but 

stresses that the video had the "impact" of showing Diaz on the 

night of the murder.
33

ruling on the defendant's motion for a new trial, the judge 

concluded that defense counsel's "advice to reject the 

Commonwealth's offer of a second-degree murder plea bargain was 

not unreasonable," and we agree with this assessment.23 Diaz's 

testimony was essential to convict the defendant of murder in 

the first degree, as he was the only person who testified to 

seeing the defendant shoot the victim twice while the victim lay 

on the floor. At the time defense counsel advised the defendant 

not to accept the Commonwealth's plea deal, it was uncertain 

whether Diaz (who had fled to another country) would testify, 

and, if so, whether he would cooperate24 and whether he would be 

credible. Indeed, the day before the trial began the 

Commonwealth moved for a continuance because the extradition 

process, which was not then complete, could have taken up to two 

 

23 As the judge who heard the motion for a new trial was 

also the trial judge, his findings "are entitled to substantial 

deference," as he observed counsel's effectiveness first-hand. 

See Commonwealth v. Britto, 433 Mass. 596, 608 (2001). See 

Commonwealth v. DeVincent, 421 Mass. 64, 69 (1995).

24 Diaz fled to Spain because of an unrelated drug 

trafficking charge, and it took what the Commonwealth described 

as a "Herculean effort" (including the involvement of the State 

Police, the United States Justice Department, and the United 

States Marshals) to get him back to Massachusetts to testify. 

Once Diaz was back, it was still uncertain whether he would 

cooperate. The Commonwealth stated at the new trial hearing:

"[Diaz] arrived and even on his arrival, I wasn't sure what 

we were going to get. . . . I didn't expect him to be a 

cooperative witness. So there was always the very strong 

possibility that we were not going to get Danny Diaz in."
34

additional months. Accordingly, on the record before us, 

defense counsel's inability to recognize fully the strength of 

the Commonwealth's case until after Diaz testified was 

understandable25 and his advice to reject the murder in the 

second degree plea, when it was available,

26 was not ineffective. 

See Mahar, 442 Mass. at 17, quoting In re Alvernaz, 2 Cal. 4th 

924, 937 (1992) ("defense attorney's simple misjudgment as to 

the strength of the prosecution's case . . . will not, without 

more, give rise to a claim of ineffective assistance of 

counsel").

6. Closing argument. Last, the defendant argues that the 

Commonwealth's closing argument improperly appealed to the 

sympathies of the jury. Specifically, he contends that the 

 

25 The defendant also argues that defense counsel should 

have advised him to accept the plea deal once it was clear (on 

the seventh day of the trial) that Diaz was going to testify. 

However, as previously mentioned, at that point it was still far 

from obvious that Diaz would be a cooperative witness. In fact, 

when ruling on the defendant's motion for a new trial, the judge

stated, "Diaz was . . . a problematic witness for the 

government. It was highly uncertain that he would ever appear; 

and that, if he did, he would be willing to testify."

Moreover, at the time Diaz was to testify, he faced a 

fifteen year mandatory minimum term of imprisonment on charges 

of drug trafficking. Defense counsel aggressively crossexamined Diaz on the agreement he had with the district 

attorney's office with respect to reducing those charges and any 

prospective sentence.

26 After Diaz testified, the Commonwealth no longer offered 

the defendant an option to plead guilty to murder in the second 

degree.
35

Commonwealth used hyperbolic language to urge the jury to 

convict, excessively referred to the shooting as an "execution,"

improperly invited the jury into the victim's position in an 

attempt to arouse sympathy, and included unnecessary references 

to the scene's gore.27 As the defendant did not object to these 

statements at trial, we review for a substantial likelihood of a 

miscarriage of justice. See Commonwealth v. Scott, 470 Mass. 

320, 333-334 (2014). Additionally, "[w]e review the 

prosecutor's remarks in the context of his entire closing

argument, the judge's instructions to the jury, and the evidence 

produced at trial." Commonwealth v. Lyons, 426 Mass. 466, 471

(1998).

The Commonwealth tried this case on a theory of extreme 

atrocity or cruelty. Therefore, in contrast to what the 

defendant submits, the degree of the defendant's guilt was not 

the only issue at trial, and the Commonwealth was entitled to 

focus the jury "both on the defendant's actions, in terms of the 

manner and means of inflicting death, and on the resulting 

effect on the victim" (citation omitted). Commonwealth v. 

 

27 For example, the Commonwealth stated in closing: "That 

bump on the ground is the body of twenty-eight-year-old Jeffrey 

Santiago lying face down on beer-stained, dirty barroom floor, 

seconds or minutes left to live. Dying in pain and dying in 

agony. And there is his cowardly killer, just steps away, happy 

in the deed he had just performed, dispensing of [the victim's] 

life with the ease and convenience of dispensing of a piece of 

garbage on the floor."
36

Barros, 425 Mass. 572, 581 (1997). The Commonwealth was 

permitted to call the jury's attention to the "defendant's 

awareness of, but indifference to, or pleasure in, the victim's 

suffering," id., as "[w]here a charge of murder in the first 

degree is based on the theory of extreme atrocity or cruelty 

. . . the jurors serve as the conscience of the community in 

determining whether the killing merits that description." 

Commonwealth v. Torres, 437 Mass. 460, 465 (2002). In such 

circumstances, the Commonwealth may "illustrate the magnitude of 

the crime" by discussing the details of the victim's death, as 

well as the elements of gore and pain that are not inherent in 

every death. See Commonwealth v. Siny Van Tran, 460 Mass. 535, 

554 (2011). See also Commonwealth v. Wilson, 427 Mass. 336, 351

(1998) (prosecutor's references to gruesomeness of crimes not 

improper because relevant to issue whether defendant's actions 

constituted extreme atrocity or cruelty). Moreover, 

"enthusiastic rhetoric, strong advocacy, and excusable hyperbole 

are not grounds for reversal" (quotation and citation omitted). 

Wilson, 427 Mass. at 350.

Still, although it was permissible for the Commonwealth to 

call the jury's attention to the circumstances of the victim's 

death, namely that he lay bleeding on a dirty barroom floor 

while the man who fatally shot him ran away, laughing, we agree 

that some of the Commonwealth's closing remarks overstepped the 
37

bounds of appropriate rhetoric. For example, the Commonwealth

offered the following description of the crime scene:

"[T]here was another scent at that crime scene. The smell 

of blood. The smell of three people's blood, all at his 

hand. A blood pool, a puddle of blood . . . seeping out of 

[the victim's] body as his life seeped out of his body 

. . . [the victim's] life literally drained from his body."

Additionally, the Commonwealth implored the jury:

"Think about landing face down on that dirty, beer-stained 

barroom floor. You are completely helpless . . . you're 

laying there bleeding, in pain, in terror. . . . Think 

about the last moments of [the victim's] life, whether he 

lived for seconds, as the doctor told you, or lived for 

minutes, it was a horrible, brutal, vicious death. . . . 

The pain, the suffering."

These remarks, attempting to arouse sympathy and invite the jury 

into the victim's position, were improper. See Commonwealth v. 

Olmande, 84 Mass. App. Ct. 231, 234 (2013).

The defendant also properly takes issue with the 

Commonwealth's reference to the shooting as an execution no 

fewer than eleven times. To be sure, the Commonwealth could, 

given the evidence, permissibly label the victim's shooting an 

execution. See Commonwealth v. Francis, 450 Mass. 132, 141 

(2007) (phrase "execution-style" described shooting 

appropriately given that victim was shot several times in back). 

However, rather than making just a "few passing references," see 

Wilson, 427 Mass. at 351, the Commonwealth appears to have 

dwelled gratuitously on the circumstances of the murder in order 

to appeal to the jury's sympathy. See Commonwealth v. Santiago, 
38

425 Mass. 491, 494-495 (1997), S.C., 427 Mass. 298, and S.C.,

428 Mass. 39, cert. denied, 525 U.S. 1003 (1998) (prosecutor

acted improperly when, in closing, stated seven times that 

victim of fatal shooting was pregnant and four times that her 

birthday was day after shooting).

However, given that the Commonwealth charged the defendant 

with extreme atrocity and cruelty, and in the context of the 

entire summation, the evidence at trial, and the jury 

instructions, see Commonwealth v. Viriyahiranpaiboon, 412 Mass. 

224, 231 (1992), these errors did not create a substantial 

likelihood of a miscarriage of justice. See Wilson, 427 Mass. 

at 351. First, the prosecutor explicitly stated that the reason 

for dwelling on the manner of death was to explain that the 

murder was conducted with extreme atrocity or cruelty.28 In 

addition, the lack of objection by defense counsel, although not 

dispositive, is indicative that the tone and manner of the 

remarks were not unfairly prejudicial. Sanchez, 405 Mass. at 

375. Moreover, "[a]ny adverse impact . . . resulting from the 

 

28 The Commonwealth even explained to the jury in closing, 

"I don't tell you all this to shock you. I don't tell you this 

to upset you. I tell you this because it's important. It's 

important to know how [the victim] died. It's important to know 

how much callousness and indifference was executed by the man 

who killed him on that barroom floor. It's important to know 

that [the victim] suffered, because as you'll soon know from 

[the judge's] instructions, his suffering, the way he was 

killed, it screams a concept called extreme atrocity. It 

screams cruelty."
39

summation would have been cured by the judge's charge to the 

jury." Commonwealth v. Costa, 414 Mass. 618, 629 (1993). 

Although none of the errors was addressed specifically, the 

judge instructed the jury that closing arguments are not 

evidence and that the jury were not to be swayed by emotion, 

sentiment, sympathy, or prejudice.29 "The jury have the ability 

to discount hyperbole and other improper statements, . . . and 

trial judge's instructions are generally adequate [to] cure 

errors in the arguments" (citation omitted). Santiago, 425 

Mass. at 495.

7. Review pursuant to G. L. c. 278, § 33E. We have 

reviewed the entire record of the defendant's trial pursuant to

G. L. c. 278, § 33E, and find no reason to exercise our 

authority to reduce the jury's verdict of murder to a lesser 

degree of guilt or order a new trial.

Judgments affirmed.

 

29 Specifically, the judge explained: (1) "[y]ou must be 

completely impartial. You are not to be swayed by any emotion, 

sentiment, sympathy or prejudice"; (2) "[f]inal arguments of 

counsel . . . [a]re not evidence"; and (3) personal views of the 

attorneys, "as such views may have come through when they 

presented their final arguments" are not relevant.