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SJC-10566

COMMONWEALTH vs. MANOLO SALAZAR.

Suffolk. September 12, 2018. - December 14, 2018.

Present: Gants, C.J., Lowy, Budd, & Kafker, JJ.

Homicide. Evidence, Intoxication, Intent, Medical record, 

Expert opinion, Argument by prosecutor. Intoxication.

Intent. Practice, Criminal, Argument by prosecutor, 

Assistance of counsel, Capital case.

Indictment found and returned in the Superior Court 

Department on March 24, 2005. 

The case was heard by Margaret R. Hinkle, J.; and a motion 

for a new trial, filed on January 11, 2016, was heard by Douglas 

H. Wilkins, J., and a motion for reconsideration was considered

by him.

Amy M. Belger for the defendant.

Kathryn E. Leary, Assistant District Attorney (John P. 

Pappas, Assistant District Attorney, also present) for the 

Commonwealth.

LOWY, J. On the night of January 31, 2005, members of the 

Boston fire department in the Dorchester section of Boston

responded to the sound of banging on their fire house door. 
2

Outside the station was the defendant, Manolo Salazar, covered 

in blood. After examining the defendant, firefighters found 

only a minor cut on his right hand. Police investigation 

revealed the source of the rest of the blood on the defendant's 

body: Carlos Cruz, the defendant's roommate, whom police found 

dead in their shared apartment. 

After a jury trial, the defendant was convicted of murder 

in the first degree on the theory of deliberate premeditation.1 

He raises several arguments on appeal: (1) the judge erred in 

denying his motions for a required finding of not guilty on the 

murder charge because the evidence was insufficient to establish 

deliberate premeditation; (2) he should be afforded a new trial 

because trial counsel was ineffective in failing to introduce 

evidence in support of a defense based on voluntary 

intoxication; and (3) improper statements in the prosecutor's 

closing argument created a substantial likelihood of a 

miscarriage of justice.2 The defendant also asks us to exercise 

 

1 The defendant was acquitted of assault and battery. 

2 The defendant raised one additional argument pursuant to 

Commonwealth v. Moffett, 383 Mass. 201, 208-209 (1981). The 

defendant contends that he was prejudiced by the trial judge's 

denial of his motion for the funds necessary to translate his 

trial transcripts into Spanish. An indigent defendant is 

entitled to funds for "extra fees and costs . . . if 'the 

document, service or object is reasonably necessary to assure 

the applicant as effective a . . . defense . . . as he would 

have if he were financially able to pay.'" Commonwealth v. 
3

our authority under G. L. c. 278, § 33E, to either reduce his 

conviction to murder in the second degree or order a new trial. 

Having thoroughly reviewed the defendant's asserted errors 

and the record as a whole, we discern no reversible error. 

However, given the unique circumstances of this case, we 

exercise our authority under G. L. c. 278, § 33E, to reduce the 

defendant's verdict to murder in the second degree.

1. Background. a. Trial. Because the defendant 

challenges the sufficiency of the evidence, we recite the facts 

that the jury could have found in the light most favorable to 

the Commonwealth and reserve additional facts for later 

discussion. 

At approximately 8:40 P.M. on January 31, 2005, members of 

the Boston fire department heard banging on the door of a 

station in Dorchester. They found the defendant at the door. 

He fell down. His clothes, including the socks on his shoeless 

feet, were covered in blood. The lone injury firefighters 

discovered was a minor laceration between the defendant's right 

 

Millien, 474 Mass. 417, 430 (2016), quoting G. L. c. 261, § 27C. 

In making a decision on a motion for funds, a judge may 

consider, among other things, the cost of the requested item and 

its potential value. Commonwealth v. Lockley, 381 Mass. 156, 

160-161 (1980). The estimated cost of the translation was 

$12,348, and the defendant was present, with a translator, 

throughout his trial. Further, the defendant's appellate 

counsel was provided with the trial transcripts and could 

therefore discuss them with his client. Therefore, we discern 

no error in the judge's denial of the motion for funds.
4

thumb and forefinger that was not bleeding heavily enough to 

account for all of the blood on his clothes. After an ambulance 

arrived, the defendant became combative and was handcuffed to a 

backboard by paramedics before being transported to a Boston 

hospital. 

Initially, the defendant told police that his last name 

began with a "Z" instead of an "S" and provided them with an 

inaccurate home address. Subsequent investigation led police to 

the defendant's home in Dorchester, a three-unit apartment 

building. On entry into the defendant's third-floor apartment, 

police discovered the victim lying dead on the floor between a 

hallway and a bedroom. A Boston Police Department detective 

observed a large pool of blood below the victim's body. Inside 

that pool of blood was a kitchen knife with a wooden handle and 

a serrated edge, which was "drastically" bent. 

The Commonwealth's chief medical examiner at the time of 

trial testified to the victim's autopsy report, which had been

prepared by another medical examiner. He detailed the victim's

injuries, noting that the "most lethal" wound was a cut 

beginning at the victim's left ear and continuing to his neck. 

He described the wound as a deep stab wound that injured both 

the victim's carotid artery and his jugular vein, causing him to 

bleed to death. He described eleven additional injuries; five 

were abrasions and six were clearly caused by a sharp object. 
5

The additional sharp object injuries included three stab wounds 

(one to the left arm, one to the left shoulder, and one near the 

left armpit that was four inches deep) and three, more shallow,

incised wounds (one to the outside of the left arm, one to the 

left side of the chest, and one that extended from the victim's 

left index finger to his ring finger). The medical examiner

described the injury across the victim's fingers as consistent 

with the victim "trying to deflect" the knife with that hand. 

He further opined that the victim's wounds were consistent with 

the knife that was found underneath him, and that the cut on the

defendant's hand was consistent with the murder weapon slipping 

in the defendant's hand.

Police viewed reddish-brown stains throughout the apartment 

that created a trail from the area of the victim's body down the 

hallway, through the kitchen, onto the back porch, over the 

third-floor railing and down to the railings on the second and 

first floors, through the backyard, and over a chain-link fence. 

That trail then led through a vacant lot and onto nearby 

streets, eventually leading to the fire station. 

Deoxyribonucleic acid testing identified the victim's blood as a 

possible source of many of these "reddish-brown" stains, 

including those on the defendant's pants and socks, one on the 

porch railing on the third floor, and one on a snow pile in the 

vacant lot.
6

The defendant testified in his own defense and denied 

killing the victim. He testified that the victim was "almost 

like my brother" and that the two had spent the day of January 

31 together in the apartment cooking and drinking beer. 

Although the defendant did not recall how many beers he 

consumed, his testimony suggested that he was drinking beer from 

at least 11:30 A.M. until approximately 4 P.M., at which point 

he fell asleep on the couch. The defendant testified that he 

was awakened by loud voices arguing in the apartment and saw two 

strange men inside the apartment arguing with the victim. One 

of the men had a knife and began stabbing the victim, causing 

the defendant to intervene. The defendant said that he was then 

beaten by the two men and fled the apartment, going directly to 

the fire station to find help. 

The judge denied the defendant's motions for a required 

finding of not guilty. At the charge conference, trial counsel

requested that the judge instruct the jury on intoxication as 

relevant to both intent and deliberate premeditation. The judge 

so instructed the jury, but noted to counsel that "there is a 

paucity of evidence on [intoxication] and there's certainly no 

scientific evidence that I've seen." 

b. Motion for new trial. The defendant filed a motion for 

a new trial after his conviction, asserting ineffective 

assistance of counsel based on trial counsel's failure to 
7

introduce medical records showing his levels of intoxication.3 

The jury had heard evidence suggesting that the defendant was 

intoxicated on the night of the murder, including testimony from 

a woman who had translated for the defendant at the hospital. 

The woman testified that the defendant's speech "was kind of 

sluggish," his breath smelled of alcohol, and his eyes were 

bloodshot. Trial counsel did not mention intoxication in her 

opening statement, and she referenced the evidence of the 

defendant's intoxication in her closing argument only in an 

attempt to explain disparities in the defendant's recollection 

of events. 

Not before the jury, however, were the defendant's medical 

records, which were discussed before trial at an evidentiary 

hearing on the defendant's motion to suppress. His breathalyzer 

results indicated either a 0.298 or a 0.289 blood alcohol 

content (BAC), his blood alcohol readings were 0.226 and 0.288, 

and he had a serum alcohol level of 307. The defendant was 

diagnosed with alcohol intoxication, and a medical technician 

testified at the suppression hearing that the defendant's

 

3 The defendant's motion for a new trial was argued before a 

different judge, as the trial judge had retired. 
8

breathalyzer results indicated a very high level of 

intoxication.4 

Trial counsel submitted an affidavit stating that her 

failure to introduce medical records indicating the defendant's 

high level of intoxication was not a strategic decision, but

rather an oversight on her part. In denying the defendant's 

motion without an evidentiary hearing, the motion judge 

implicitly discredited trial counsel's affidavit and determined 

that the record indicated "that counsel consciously chose not to 

offer the medical records." Emphasizing how a vigorous 

intoxication defense would have undermined the defendant's 

testimony that he was innocent, the motion judge found that 

trial counsel made a tactical decision to focus on a third-party 

culprit theory rather than introduce significant evidence of 

intoxication. 

The defendant filed a motion for reconsideration, which was 

allowed, and an evidentiary hearing on the motion for a new 

trial followed. Trial counsel testified at the hearing. In an 

amended decision, the motion judge noted that the defendant's 

medical records showed "very significant intoxication" and 

 

4 The defendant sought to exclude evidence of his 

intoxication, including both statements made and physical 

evidence. His motion to suppress was denied, and the evidence 

of his intoxication was available to be admitted in evidence 

during trial. 
9

credited trial counsel's testimony that she had intended to 

present and rely on those medical records as part of her 

intoxication strategy. He further concluded that trial counsel 

never intended to call as a witness at trial the medical 

technician who had administered the defendant's breathalyzer

test at the hospital and who had testified at the suppression 

hearing that the defendant's BAC was "very high."

The judge issued an amended decision on the defendant's 

motion for a new trial. The judge concluded that trial counsel 

pursued a dual-defense strategy and had intended to introduce 

the medical records as a part of a voluntary intoxication 

defense. The judge held that, because trial counsel

inadvertently failed to introduce those records because she 

believed that they were in evidence, trial counsel's performance 

fell measurably below that of an ordinary fallible lawyer.5 See 

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). The judge 

determined that this error did not warrant a new trial, however, 

because the jury heard "substantial evidence of intoxication 

. . . and received full instructions to consider the defendant's 

voluntary intoxication on the questions of intent and deliberate 

 

5 The judge rejected the defendant's argument that defense 

counsel's strategic decision not to call the technician as a 

witness to testify at trial regarding the defendant's BAC was 

manifestly unreasonable, as "the overall defense strategy [was] 

to preserve, but not highlight, intoxication." 
10

premeditation." The motion judge noted that trial counsel, 

despite her mistake, skillfully sought to "soft-pedal" the 

intoxication defense. In other words, she attempted to present 

evidence of the defendant's intoxication without undermining his 

claim to innocence.

2. Discussion. a. Sufficiency of the evidence. The 

defendant maintains that the evidence presented at trial was 

insufficient to establish deliberate premeditation, and that the 

judge's denial of his motions for a required finding of not 

guilty was therefore error. We review the denial of a motion 

for a required finding of not guilty to determine "whether the 

evidence offered by the Commonwealth, together with reasonable 

inferences therefrom, when viewed in its light most favorable to 

the Commonwealth, was sufficient to persuade a rational jury 

beyond a reasonable doubt of the existence of every element of 

the crime charged." Commonwealth v. Whitaker, 460 Mass. 409, 

416 (2011), quoting Commonwealth v. Lao, 443 Mass. 770, 779 

(2005), S.C., 450 Mass. 215 (2007) and 460 Mass. 12 (2011). See 

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

To prove murder in the first degree on the theory of 

deliberate premeditation, the Commonwealth must prove "not only 

that the defendant intended to kill, but that the defendant 

decided to kill after a period of reflection." Whitaker, 460 

Mass. at 418. There is "[n]o particular length of time of 
11

reflection . . . required to find deliberate premeditation, and 

the decision may be made in only a few seconds." Commonwealth

v. Rakes, 478 Mass. 22, 34 (2017). Circumstantial evidence 

alone may be sufficient to prove deliberate premeditation. 

Commonwealth v. Veiovis, 477 Mass. 472, 480 (2017). 

We have recognized as proper considerations in a deliberate 

premeditation analysis the number and severity of the injuries,

including defensive wounds, the procuring of a murder weapon in 

one room and carrying it to use in another, and the location of 

a victim's wounds. See Whitaker, 460 Mass. at 419 ("Deliberate 

premeditation may be inferred from the nature and extent of a 

victim's injuries, the duration of the attack, the number of 

blows, and the use of various weapons"); Commonwealth v. Nolin, 

448 Mass. 207, 216 n.7 (2007) (deliberate premeditation 

established by "the number and severity of the injuries" to 

victim's face and head). See also Commonwealth v. Townsend, 453 

Mass. 413, 429 (2009) (victim's fifty-eight stab wounds, 

including several defensive wounds, sufficient for deliberate 

premeditation); Commonwealth v. Farley, 432 Mass. 153, 157-158 

(2000), S.C., 443 Mass. 740, cert. denied, 546 U.S. 1035 (2005)

(evidence sufficient to establish deliberate premeditation where 

"the Commonwealth relied on the fact that the victim had been 

stabbed multiple times; the location of the wounds; the duration 

of the attack; and the inference that the defendant carried a 
12

knife from the kitchen to the victim's upstairs bedroom");

Commonwealth v. Andrews, 427 Mass. 434, 440 (1998) (shooting 

unarmed victim four times from close range sufficient for

deliberate premeditation); Commonwealth v. Watkins, 373 Mass. 

849, 852 (1977) ("that the defendant, after a quarrel, went to 

the kitchen, picked up a knife, and returned to stab the victim 

is sufficient" for premeditation).

We conclude that, here, the evidence and the reasonable 

inferences that stem from it, considered in the light most 

favorable to the Commonwealth, were sufficient to prove that the 

murder was deliberately premeditated. The knife used to kill 

the victim was a kitchen knife, and the location of the victim's

body between the hallway and a bedroom allows for a reasonable

inference that the defendant retrieved the weapon from the 

kitchen before the killing. The fatal wound was a deep wound to 

the victim's neck. The victim had at least six other stab or 

incised wounds, including defensive wounds on his left hand and 

injuries to his left side, arm, and shoulder, that left the 

knife "drastically" bent. The judge's denial of the defendant's 

motions for a required finding of not guilty was proper.

b. Ineffective assistance of counsel. The defendant 

maintains that he was deprived of effective assistance of 

counsel at trial because his counsel failed to introduce the 

defendant's medical records indicating his high level of 
13

intoxication on the night of the murder. Because the defendant 

was convicted of murder in the first degree, we review the claim 

under the more favorable standard articulated in G. L. c. 278, 

§ 33E, under which we must determine whether there was a 

substantial likelihood of a miscarriage of justice. 

Commonwealth v. Alicea, 464 Mass. 837, 845 (2013), quoting 

Commonwealth v. Gonzalez, 443 Mass. 799, 808 (2005). To make 

this determination, we ask "whether there was an error in the 

course of the trial (by defense counsel, the prosecutor, or the 

judge) and, if there was, whether that error was likely to have

influenced the jury's conclusion." Alicea, supra, quoting 

Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 

Mass. 447 (2014). "[W]e consider a defendant's claim even if 

the action by trial counsel does not constitute conduct 'falling 

measurably below that . . . of an ordinary fallible lawyer.'" 

Gonzalez, supra at 808-809, quoting Commonwealth v. MacKenzie, 

413 Mass. 498, 517 (1992).6

We agree with the motion judge that trial counsel's 

oversight in failing to introduce the defendant's medical 

 

6 This standard differs from the Saferian standard motion 

judges apply when ruling on motions for a new trial based upon 

ineffective assistance of counsel claims. Commonwealth v. 

Saferian, 366 Mass. 89, 96 (1974). Although this difference in 

standards does not have an impact on our decision in this case, 

we note that it may, at times, result in a reversal of a motion 

judge's decision even though the motion judge may well have been 

affirmed if we were applying the same standard of review.
14

records was error. We differ from the motion judge's ruling 

that it was a reasonable strategic decision by trial counsel to

not supplement those records with expert testimony regarding the 

relationship between the BAC reading and intoxication. See 

Commonwealth v. Colturi, 448 Mass. 809, 817-818 (2007) ("the 

jury would be left to guess" at meaning of defendant's BAC 

absent expert testimony). 

We recognize that trial counsel was faced with a difficult 

strategic predicament at trial. The defendant, as is his 

constitutional right, testified in his own defense. See 

Commonwealth v. Brown, 479 Mass. 163, 171 (2018). He 

unequivocally denied killing the victim. Therefore, the motion 

judge found that trial counsel decided to pursue the voluntary 

intoxication defense ever mindful of its potential to undercut 

the primary defense of innocence. See Commonwealth v. Morales, 

453 Mass. 40, 43-45 (2009). The motion judge ultimately 

concluded that trial counsel "soft-pedaled" the intoxication 

defense so as to leave the question in the jury's hands without 

overemphasizing the defendant's intoxication. There are

situations where the appropriate course of action would be to 

pursue alternative defenses -- "rid[e] 'two horses'" into 

battle. Commonwealth v. Kolenovic, 471 Mass. 664, 676 (2015), 

S.C., 478 Mass. 189 (2017). Trial counsel chose such a strategy 

in the present case. However, having made that decision, trial 
15

counsel was required to pursue each of those defenses

effectively. Although the choice to soft-pedal the intoxication 

defense was reasonable, her failure to introduce the most 

compelling evidence of the defendant's intoxication was error.

Nevertheless, the jury were presented with evidence that 

allowed them to consider the question of intoxication. Most 

notably, the defendant testified that he had spent at least four 

and one-half hours drinking beer with the victim on the day of 

the murder, although he did not know how many beers he had 

consumed. The woman who interacted with the defendant at the 

hospital noted that his breath smelled of alcohol, his eyes were 

bloodshot, and his speech was sluggish. Although there is no 

dispute that the defendant drank and showed signs of 

intoxication, there also was ample evidence before the jury to 

show that the defendant was not intoxicated to the point of 

debilitation. He was coherent in his interactions with medical 

personnel and was physically able to climb to the ground from 

the deck of his third-floor apartment. 

The judge instructed the jury that they could consider the 

mitigating effect of voluntary intoxication, stating, "[A]ny 

evidence that you find credible of the defendant's consumption 

of alcohol, you may consider that evidence in determining 

whether the defendant specifically intended to commit an offense 
16

or whether the defendant deliberately premeditated the killing 

of [the victim]." 

Because the defendant's intoxication may have been 

probative of a lack of capacity to formulate the intent 

necessary to prove murder by deliberate premeditation, the jury 

could have found the defendant guilty of a lesser offense or 

acquitted him had they determined his level of intoxication to 

be "debilitating." Commonwealth v. Carter, 475 Mass. 512, 524 

(2016). See Commonwealth v. Murphy, 442 Mass. 485, 504 (2004). 

That debilitation must be to the point that it "could support a 

reasonable doubt as to the defendant's ability to form the 

requisite criminal intent" or to deliberately premeditate. 

Commonwealth v. Lennon, 463 Mass. 520, 523 (2012). As evidenced 

by the request for an intoxication instruction, trial counsel

pursued this defense. Trial counsel also pointed to the 

defendant's intoxication in her closing argument as a possible 

explanation for disparities in the defendant's account of the 

night in question. It was an error by counsel, therefore, to 

not introduce the defendant's medical records and accompanying 

expert testimony to explain the significance of his BAC, 

particularly because expert testimony likely would have shown 

the BAC to demonstrate a high level of intoxication. See 

Commonwealth v. Wall, 469 Mass. 652, 671 (2014) (testimony that

BAC of 0.21 per cent "very high").
17

Therefore, the question is whether this error created a 

substantial likelihood of a miscarriage of justice. Despite 

trial counsel's errors, her approach to the trial was consistent 

with the motion judge's determination that she "soft-pedaled" 

the intoxication defense. At the time of the closing argument, 

trial counsel believed that the defendant's medical records had 

been entered in evidence. Despite this belief, she opted not to 

argue that the defendant's intoxication diminished his capacity 

to form intent or deliberately premeditate. This suggests that 

although trial counsel chose to ride two horses into battle, she 

focused primarily on only one of them in closing argument. It 

"is a well-known and time-honored approach" to avoid emphasizing 

a defense that would undermine a primary defense theory. 

Commonwealth v. Walker, 443 Mass. 213, 228 (2005). See 

Commonwealth v. Spray, 467 Mass. 456, 473-475 (2014). When 

considering a defense attorney's strategy at trial, "we conduct 

our review with some deference to avoid characterizing as 

unreasonable a defense that was merely unsuccessful." 

Kolenovic, 471 Mass. at 673, quoting Commonwealth v. Valentin, 

470 Mass. 186, 190 (2014). "This measure of deference is as it 

must be because, ultimately, counsel alone has the benefit of 

the full factual picture that dictates the choice of those 

matters to be revealed to the fact finder and those that are 

better left unexposed to court room scrutiny. From that vantage 
18

point, counsel 'knows best how to defend a client.'" Kolenovic, 

supra, quoting Commonwealth v. Glover, 459 Mass. 836, 843 

(2011).7

We recently considered a similar question in Commonwealth

v. Montrond, 477 Mass. 127, 134-136 (2017), where the 

defendant's trial counsel argued that a shooting was accidental 

while choosing not to introduce evidence of the defendant's 

possible intoxication. Although the evidence of intoxication in

the Montrond case, which we termed to be "tepid at best,"8 may 

 

7 The defendant's appellate counsel argues that the 

defendant's testimony at trial was fantastical and would not 

have been credited by the jury. Although that may be so, the 

decision whether to testify is the prerogative of the accused. 

Commonwealth v. Jenkins, 458 Mass. 791, 803 (2011) ("The 

decision whether to testify is an important strategic one to be 

made by the defendant in consultation with his attorney"). 

Defense counsel may sometimes disagree with a defendant's 

decision to testify and may provide advice to assist the 

defendant in that decision. See generally id. at 802-804. 

Ultimately, should the defendant decide to testify to his or her 

side of the story, respect for the defendant's personal autonomy 

requires that the defendant's own attorney not undermine that 

decision. See id. at 803 (waiver of right to testify on one's 

own behalf must be knowing and intelligent). But see Mass. R. 

Prof. C. 3.3 (e), as appearing in 471 Mass. 1416 (2015) (where 

defense counsel knows that his or her client is going to testify 

falsely, he or she "may not aid the client in constructing false 

testimony, and has a duty strongly to discourage the client from 

testifying falsely, advising that such a course is unlawful"); 

Commonwealth v. Mitchell, 438 Mass. 535, 550-553, cert. denied, 

539 U.S. 907 (2003). See also Nix v. Whiteside, 475 U.S. 157, 

173 (1986).

8 The evidence suggesting that the defendant in Montrond was 

intoxicated was limited to a first responder's description of 

the defendant as "reek[ing] of [body odor], like sweat and [body 
19

have been "somewhat helpful to the defendant[]," we concluded 

that it "hardly would have given rise to a compelling inference 

that the defendant was so intoxicated that he could not 

appreciate the need to check the safety lock before pointing a 

loaded gun at someone's head and pulling the trigger." Id. at 

136. The evidence of intoxication here rises above the tepid 

level seen in the Montrond case. It is not, however, so strong 

that we are concerned that the failure to admit medical evidence 

of the defendant's intoxication would have been likely to 

influence the jury's decision. 

The defendant's BAC, although high, would have been just 

one of many factors the jury could have considered in 

determining whether he was intoxicated to the point of 

debilitation, such that there was "reasonable doubt as to [his] 

ability to form the requisite criminal intent."9 Lennon, 463 

Mass. at 523. Although evidence of the defendant's BAC would 

 

odor], and of alcohol" and the defendant's emotional behavior 

that may have been viewed as consistent with being alcohol 

related. Commonwealth v. Montrond, 477 Mass. 127, 136 (2017). 

9 There is no BAC that constitutes "per se" debilitation in 

the way seen in prosecutions for operating while under the 

influence. Colturi, 448 Mass. at 810. With that in mind, there 

is ample evidence to suggest that the defendant was not 

intoxicated to the point of debilitation. He was coherent in 

talking to firefighters, paramedics, and hospital staff. He was 

capable of climbing from the back porch of his third-floor 

apartment to the ground, without stairs. He also had the 

presence of mind and ability to climb a fence, proceed through a 

vacant lot, and walk directly to a fire station. 
20

have been the strongest evidence to suggest he was debilitated 

by alcohol, the entirety of the evidence before the jury coupled 

with trial counsel's reasonable decision to "soft-pedal" the 

intoxication defense leaves us unpersuaded that the defendant's 

medical records would have influenced the jury's verdict. We 

conclude that defense counsel's error in failing to admit them 

in evidence did not create a substantial likelihood of a 

miscarriage of justice.

c. Closing argument. The defendant asserts that the 

prosecutor made improper remarks in his closing argument. 

Because trial counsel did not object to the closing argument at 

trial, we review to determine whether there was an error and, if 

so, whether that error created a substantial likelihood of a 

miscarriage of justice. See Veiovis, 477 Mass. at 488. 

"To be sure, 'prosecutors are held to a stricter standard 

than are errant defense counsel and their clients.'" 

Commonwealth v. Goitia, 480 Mass. 763, 775 (2018), quoting 

Commonwealth v. Arroyo, 442 Mass. 135, 147 (2004). The 

defendant contends that three portions of the prosecutor's 

closing argument were improper: (1) a reference to the twentymonth period between the murder and trial, which accompanied the 

prosecutor's suggestion that the defendant now had no more time 

to produce a different explanation for the victim's death, such 

as a third party; (2) the statement that the jury should use 
21

their "moral compass" and "gut" in evaluating the evidence and 

testimony; (3) the statement that the defendant's intoxication 

was "not an excuse" for the murder, "[w]hether he had two beers, 

four beers, or [forty-four] beers."

We discern no error in the prosecutor's reference to the 

twenty-month period between the murder and trial. The 

prosecutor discussed that period of time while highlighting the

disparities in the defendant's story throughout that time 

period, including the detailed nature of the defendant's 

testimony at trial as compared to the defendant's statements at 

the time of the killing. This portion of the argument was 

grounded in the evidence presented at trial and was a reasonable 

commentary on the defendant's credibility. See Commonwealth v. 

Tu Trinh, 458 Mass. 776, 788 (2011).

The prosecutor's call for jurors to follow their moral 

compass is troublesome, but we conclude that even if it was 

error, it did not create a substantial likelihood of a 

miscarriage of justice. The relevant portion of the 

prosecutor's argument is as follows:

"You . . . impartial jurors also have something inside you 

besides your commonsense. And it's what I refer to as a 

moral compass. That little moral compass, when you know 

based on your gut that something's wrong, that something is 

askew with a certain situation. And I suggest to you, 

ladies and gentlemen, based on the evidence in this case, 

that your moral compass goes haywire when you consider what 

was in that apartment and his actions and his statements in 

the aftermath of 8:40 P.M. approximately on January 31st of 
22

2005. You know, based on your everyday life experience 

that something was horribly amiss with his behavior, his 

statements and his actions that night." 

It is well established that it is proper to ask a jury to rely 

on their common sense and life experience in assessing evidence 

and credibility. See Lao, 460 Mass. at 22. The prosecutor's 

invocation of the jury's "moral compass" however, was a step 

beyond an ordinary call for the jury to rely on their life 

experience and common sense, and approached an improper appeal 

to the jury's emotions. It was thus better left unsaid. We 

need not determine whether it was improper, however, because 

even if it was, we are unpersuaded that this sole misstatement 

would undermine the jury's verdict, particularly where the jury 

were properly instructed that closing arguments are not 

considered evidence. See Commonwealth v. Kozec, 399 Mass. 514, 

517 (1987). Considering the statement in the context of the 

rest of the closing argument and the trial as a whole, any 

prejudice was minor and does not warrant reversal. See 

Commonwealth v. Braley, 449 Mass. 316, 329 (2007).

Finally, although the prosecutor's statement that the 

defendant's possible intoxication did not "excuse" his actions 

was technically consistent with the law, we are concerned that

the prosecutor crossed the line into a misstatement of the law. 

See Commonwealth v. Rollins, 470 Mass. 66, 81 (2014), quoting 

Commonwealth v. Bins, 465 Mass. 348, 367 (2013) ("We have 
23

repeatedly warned that, in 'closing argument,' '[l]awyers shall 

not and must not misstate principles of law'"). It is true that 

intoxication does not serve as an excuse in the way that, for

instance, self-defense does. See Commonwealth v. Walczak, 463 

Mass. 808, 817 (2012) (Lenk, J., concurring), quoting Model Jury 

Instructions on Homicide 8 (1999) (self-defense can serve as 

legal justification for a killing, rather than mitigating 

factor). In the context of the trial as a whole and the rest of 

the prosecutor's closing argument, however, the prosecutor's 

statement regarding excuse appears to be a colloquial suggestion 

that the defendant's intoxication could neither excuse his 

actions nor diminish his culpability. Thus, the prosecutor's 

pronouncement that the defendant's intoxication was no excuse 

for his actions adversely had an impact on the effectiveness of 

the judge's intoxication instruction. 

That error, however, was not significant enough that our 

confidence in the jury's decision is shaken. The defendant's 

trial counsel referred to the defendant's intoxication in her 

closing argument only as a means to explain discrepancies 

between his multiple versions of the night of the killing. The 

prosecutor's statement, while erroneous, was a brief, isolated 

statement in his closing argument and was not egregious enough 

to infect the whole of the trial. Finally, the judge properly 

instructed the jury that closing arguments are not evidence, and 
24

it is well-established that "[t]he jury are presumed to follow 

instructions." Commonwealth v. Hernandez, 473 Mass. 379, 392 

(2015), citing Commonwealth v. Andrade, 468 Mass. 543, 549 

(2014). See Kozec, 399 Mass. at 517. With all that in mind, we 

conclude that the prosecutor's error was unlikely to have 

influenced the jury's ultimate decision and therefore did not 

create a substantial likelihood of a miscarriage of justice. 

d. Review pursuant to G. L. c. 278, § 33E. The defendant 

asks us, in the alternative to his grounds for appeal addressed 

above, to exercise our authority under G. L. c. 278, § 33E, to 

either order a new trial or reduce his conviction to murder in 

the second degree. It is our statutory duty "to consider 

broadly the whole case on the law and the facts to determine 

whether the verdict is consonant with justice" (quotations and 

citation omitted). Commonwealth v. Vargas, 475 Mass. 338, 363-

364 (2016). "[F]or any . . . reason that justice may require, 

[we may] (a) order a new trial or (b) direct the entry of a 

verdict of a lesser degree of guilt, and remand the case to the 

superior court for the imposition of sentence." G. L. c. 278, 

§ 33E. Although we recognize that our power under § 33E "is to 

be exercised sparingly," Commonwealth v. Seit, 373 Mass. 83, 95 

(1977), we are persuaded that, here, a verdict of murder in the 

second degree would be more "consonant with justice." Vargas, 

supra.
25

Our duty under § 33E "does not . . . convert this court 

into a second jury." Commonwealth v. Penn, 472 Mass. 610, 621 

(2015), cert. denied, 136 S. Ct. 1656 (2016), quoting 

Commonwealth v. Franklin, 465 Mass. 895, 916 (2013). But this 

case presents one of the rare situations in which we conclude 

that the jury's verdict of murder in the first degree was 

supported by the evidence, but was not consonant with justice. 

In Commonwealth v. Lanoue, 392 Mass. 583, 591-592 (1984), S.C., 

400 Mass. 1007 (1987) and 409 Mass. 1 (1990), we exercised our 

authority under § 33E where the evidence was sufficient to 

convict the defendant of murder in the first degree on a theory 

of deliberate premeditation, but the evidence was entirely 

circumstantial and "thin." There was evidence that the victim

in the Lanoue case had sustained multiple injuries and that the 

defendant was intoxicated at the time of the killing, and 

although the judge instructed the jury on the relationship 

between intoxication and deliberate premeditation, the adequacy

of the instruction was questionable. Id. We reduced the 

defendant's verdict to murder in the second degree. Id. at 592.

Due to the unusual nature of this case, we reach the same 

conclusion as we did in the Lanoue case.10 There was sufficient 

 

10 In Commonwealth v. Deconinck, 480 Mass. 254, 255, 256 

(2018), we declined to exercise our authority under G. L. 

c. 278, § 33E, and upheld the defendant's conviction of murder 
26

evidence before the jury to support their conclusion that the 

defendant had killed the victim after deliberate premeditation, 

but it was far from compelling. In addition to there being no 

definitive evidence as to what happened in the apartment on the 

night of the killing other than the victim being stabbed 

multiple times, there is nothing to suggest that there was any 

ill will between the defendant and the victim, or to suggest

that there was any motive for the killing. See Seit, 373 Mass. 

 

in the first degree on a theory of extreme atrocity or cruelty. 

We did so despite evidence of intoxication and evidence 

suggesting that the killing may have been done in self-defense 

or in the midst of sudden combat or heat of passion. Id. at 

255, 258-259. The Deconinck case, however, is readily 

distinguishable from the present case. First and foremost, the 

evidence in support of a verdict of murder in the first degree 

on a theory of extreme atrocity or cruelty in Deconinck was 

overwhelming. Indeed, there was no challenge to the sufficiency 

of the evidence on appeal. The defendant in Deconinck inflicted 

sixty-nine stab wounds on the victim, including a deep stab 

wound to the victim's chest, and two deep stab wounds to his 

back that pierced his organs. Id. at 257. Here, the evidence of 

deliberate premeditation, the only theory of murder in the first 

degree before the jury, was well short of compelling. There is 

no evidence as to how or why the defendant killed the victim, 

and the cause of death appears to have been a single stab wound 

to the victim's neck. Secondly, in Deconinck, the "issue of 

self-defense, which was the central theory of defense, was fully 

aired at trial." Id. at 273. Here, the jury were deprived of 

the strongest evidence of intoxication. It is true that the 

defendant in Deconinck, like the defendant here, had been 

drinking and consuming drugs, and that his BAC was 0.11 when 

measured at the hospital, suggesting it was 0.15 or 0.16 at the 

time of the killing. Id. at 259-260. However, that BAC was 

approximately one-half that of the defendant in this case. 

Finally, in Deconinck, there was evidence from a percipient 

witness who observed the defendant escalate the level of 

violence with the victim. Id. at 258-260. Here, the 

precipitating cause of the murder is a mystery. 
27

at 94 (whether defendant and victim had good relationship prior 

to killing relevant to mitigation analysis under § 33E). The

defendant's intoxication is another factor that we consider, 

particularly where it was incompletely presented as a defense 

and where the prosecutor made an inappropriate statement about 

it in his closing argument. See Commonwealth v. Ransom, 358 

Mass. 580, 583 (1971) (alcohol having "probably played a part" 

in murder proper consideration in § 33E analysis). In sum, we 

conclude that a conviction of murder in the second degree is 

more consonant with justice and we reduce the verdict 

accordingly.

The case is remanded to the Superior Court, where the 

verdict of murder in the first degree and sentence imposed shall 

be vacated. A verdict of guilty of murder in the second degree 

shall be entered, and a sentence imposed.

So ordered.