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SJC-12424

COMMONWEALTH vs. MIGUEL RIVERA.

Essex. January 11, 2019. - May 14, 2019.

Present: Gants, C.J., Lenk, Gaziano, Cypher, & Kafker, JJ.

Homicide. Evidence, Admissions and confessions, Voluntariness 

of statement, Hearsay, Spontaneous utterance, Intent.

Constitutional Law, Admissions and confessions, 

Voluntariness of statement. Practice, Criminal, Capital 

case, Motion to suppress, Admissions and confessions, 

Voluntariness of statement, Hearsay, Argument by 

prosecutor. Intent.

Indictment found and returned in the Superior Court 

Department on February 18, 2015.

A pretrial motion to suppress evidence was heard by James 

F. Lang, J., and the case was tried before Richard E. Welch, 

III, J.

Elizabeth Caddick for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the 

Commonwealth.

LENK, J. On the evening of February 15, 2015, Omar Mendez 

confirmed his intention to end a long-term relationship with the 

defendant, and began packing his bags to leave. Following a
2

heated argument between the two men, the defendant stabbed 

Mendez to death in the bedroom of their apartment, before 

attempting to end his own life. The defendant argued at trial 

that he should be convicted of voluntary manslaughter due to 

mitigating circumstances, such as heat of passion. A Superior 

Court jury, however, returned a verdict of murder in the first 

degree on theories of deliberate premeditation and extreme 

atrocity or cruelty. In this direct appeal, he argues that the 

statements he made to police while in the hospital should have 

been suppressed, given his compromised medical and emotional 

state at the time. The defendant also maintains that the court

should reduce the verdict to murder in the second degree, 

pursuant to G. L. c. 278, § 33E, in light of certain evidentiary 

issues, prosecutorial error in closing, and the spontaneity of 

the stabbing, and because the evidence of premeditation at trial 

was so tainted that it created a substantial likelihood of a 

miscarriage of justice. We discern no error warranting a new 

trial and no reason to exercise our extraordinary authority to 

afford relief under G. L. c. 278, § 33E. We accordingly affirm 

the conviction.

1. Background. The jury could have found the following. 

The defendant and the victim had been in a romantic relationship 

for approximately twenty-two years. They lived together in a 

one-bedroom apartment in Lawrence. In February of 2015, 
3

however, the relationship between the two men had become 

strained, and the victim had been considering ending their 

relationship.

The victim's niece, Bianca Mendez,1 and her mother, Maria 

Valentin, maintained a close relationship with both the victim 

and the defendant. One day in early February, the defendant

telephoned Valentin while she was at work. He asked whether she 

had seen a post on social media by the victim in which he had 

described breaking up with the defendant. Valentin had not. 

The defendant then asked her whether she would be willing to

speak with the victim in an attempt to convince him to change 

his mind about ending his relationship with the defendant. 

Valentin agreed to do so.

Shortly thereafter, the defendant and the victim went to 

Valentin's house in Pennsylvania for a weekend visit; they, 

along with Bianca, were to attend a baby shower for another 

relative in New York the following day. During the course of 

the trip, there was significant tension between the defendant 

and the victim. At one point, the defendant asked Valentin 

whether she had had a chance to speak with the victim about his 

decision to end his relationship with the defendant. She told 

the defendant that she had tried, but to no avail; the victim 

 

1 Because the victim and Bianca Mendez share the same 

surname, we refer to Bianca by her first name.
4

apparently had "made up his mind about moving on." The 

defendant also asked Bianca whether she would attempt to speak 

to the victim on his behalf, but she replied that she did not 

want to get involved.

The following week, Valentin and Bianca, along with 

Bianca's one year old daughter, drove to Lawrence to visit the 

victim and the defendant at their apartment for a long weekend. 

The group went out to eat, went to a mall, and socialized 

together for several days. Bianca and Valentin, however, again 

felt some discomfort due to evident tension between the victim 

and the defendant.

During the course of the visit, the defendant told Valentin 

that he was upset because the victim had obtained a new cellular 

telephone plan at the mall, to replace the plan that he and the 

defendant had shared. The victim told Valentin that he was 

waiting for the defendant to receive government benefits2 before 

the two of them decided who would move out of their shared 

apartment.

On February 15, 2015, at approximately 4:30 P.M., the 

victim, Valentin, and Bianca were watching a movie in the living 

room; the defendant was alone in the bedroom. The victim told 

Bianca that he was pursuing a new relationship with someone he

 

2 The defendant was disabled.
5

had met on a social media site; he also showed her a photograph 

of flowers that he had sent the man for Valentine's Day.

During the movie, the victim received a telephone call. He 

left the apartment through the rear kitchen door, which opened 

onto a stairwell; the victim then continued the conversation on 

the basement stairs. The defendant, who had overheard the 

victim speaking on the telephone, emerged from the bedroom. He 

asked Bianca and Valentin if the victim was "on the phone 

again," and whether he was speaking to "that motherfucker." 

They told him that they did not know who had called the victim. 

The defendant then followed the victim to the basement stairs.

After a few minutes, the defendant and the victim returned 

upstairs, shouting at one another.3 The victim said that he did 

not want to argue in front of his family, and retreated into the 

bedroom to charge his telephone; the defendant followed. At 

some point while the two were in the bedroom, the victim began 

packing a suitcase.

 

3 The defendant believed that the victim had been speaking 

with his new boyfriend, and asked why the victim was hurting him

in that way. Bianca used her own cellular telephone to make a 

brief recording of the argument and sent it to her daughter's 

father, with whom she had been exchanging text messages, to 

demonstrate why she had been feeling uncomfortable during the 

trip. The recording captured a conversation between the 

defendant and the victim that alleged infidelity. It also 

recorded Valentin's statement that she, Bianca, and the baby 

would be leaving.
6

As the defendant and the victim were arguing in the 

bedroom, Bianca and Valentin decided that they should leave, and 

they began to gather their belongings. The defendant walked 

past them and into the kitchen, where he remained for 

approximately ninety seconds. He retrieved a knife from the 

kitchen sink, returned to the bedroom, and closed the door

behind him. Bianca and Valentin did not see that the defendant 

was carrying a large butcher's knife as he walked past them.4

Seconds later, the women heard the victim yelling 

Valentin's name and pleading for the defendant to "stop." 

Valentin opened the bedroom door and saw the defendant on top of 

the victim. The defendant said, "I told you I was going to kill 

you," as he repeatedly stabbed the victim.5 Valentin jumped on 

the defendant's back in an effort to stop him, and she pleaded 

with him as well. The defendant pushed Valentin off of him, and 

she fell to the floor. She yelled at Bianca to call 911 and to 

 

4 Bianca and Valentin later identified the knife as one they 

had used earlier in the day to cut a piece of cake and had left

in the kitchen sink.

5 The precise words the defendant used were contested at 

trial, and are a primary component of the defendant's appeal; 

Valentin was impeached by the absence of similar statements in 

her grand jury testimony and in one of her statements to police. 

In his challenge to the credibility of Valentin's later report 

that the defendant spoke those words, the defendant also points 

out that Valentin's statement to a second police officer, which 

also did not contain any report of the defendant having made a 

statement similar to the one contested at trial, was not 

introduced at trial.
7

get out of the apartment with the baby.6 Valentin then backed

out of the bedroom and, along with Bianca and the baby, fled up 

the back stairs to a neighboring apartment, where they waited 

for police.

A responding officer arrived within minutes of the 911 

call, and another officer joined him shortly thereafter. They 

entered the apartment and found the victim lying face down in a 

pool of blood. He had suffered thirteen stab wounds: one to 

the head, six to the chest, and six to his arms, forearms, and

hands.7 The defendant was lying next to the victim, and appeared 

to have life-threatening injuries as well, which officers later 

learned had been self-inflicted; the defendant had multiple stab 

wounds in the chest and had sliced open his wrist. A large 

knife was lying on the floor nearby. The officers secured the 

knife and handcuffed the defendant; they then began 

administering first aid until paramedics could reach the scene.

 

6 Valentin ultimately spoke with the 911 operator, as Bianca 

had lost her voice due to an illness and was unable to convey 

the details of the emergency over the telephone.

7 The medical examiner testified that five of the wounds 

were "stab" wounds, which are deeper than they are wide; eight 

others were "incise" wounds, which are longer cuts on the 

surface than they are deep. The wound to the head and three of 

the chest wounds were stab wounds. One of the chest wounds

pierced the victim's lung and severed his aorta. The medical 

examiner opined that the victim would have died within minutes, 

and that it would have been difficult to breathe as his lungs 

filled with blood.
8

When paramedics arrived, they promptly determined that any 

attempts to revive the victim would be futile, and focused their 

efforts on the defendant. After providing emergency treatment

at the scene, they transported the defendant by ambulance to a

hospital. In the ambulance, the defendant was conscious and

responsive to questions from one of the paramedics, who was 

assessing what had happened. The defendant told the paramedic 

that he and the victim had been in a relationship for twenty-two

years, and that the defendant had stabbed the victim because he

had broken up with the defendant.

After arriving at one hospital, the defendant was then 

transported to another hospital by ambulance. One of the 

investigating officers rode in the ambulance with the defendant, 

while another followed the ambulance to the hospital. The 

officers provided the defendant with Miranda warnings twice 

during this period: once in the ambulance, and again while at 

the hospital.8 After waiving the Miranda rights, the defendant 

agreed to speak with the two officers.9 He told them that he had 

 

8 The officer who accompanied the defendant in the ambulance 

provided the defendant with Miranda warnings, but did not 

attempt to question him. Police reiterated the warnings later 

that evening, at the hospital.

9 The motion judge determined that the defendant was unable 

to sign a waiver form at the hospital due to the intravenous 

lines in his arms and bandages on his wrist. The judge found 

that the tone of the questioning was "conversational, low-key, 

respectful, and even, for the most part, sympathetic."
9

become emotional when he heard the victim speaking to his new 

boyfriend on the telephone; he then took a knife from the 

kitchen and tried to reason with the victim, but ultimately 

"lost it" and "blacked out."10 The defendant also explained to 

the officers that he suffered from depression and anxiety, took 

medication for those conditions, and felt unsafe whenever the 

victim was not with him. The defendant did not remember how 

many times he had stabbed the victim, but recalled that he tried 

to end his own life afterward.

At trial, the theory of defense was that the defendant had 

become enraged in a heat of passion following the victim's 

telephone call and subsequent decision to pack his bags and 

leave. The defendant requested that the jury convict him of 

voluntary manslaughter because the Commonwealth had not proved, 

beyond a reasonable doubt, the absence of mitigating factors,

such as reasonable provocation or heat of passion. The jury, 

however, returned a verdict of guilty of murder in the first 

degree on theories of deliberate premeditation and extreme 

cruelty or atrocity.

2. Discussion. In this appeal, the defendant argues that 

a new trial is warranted because he did not knowingly and 

voluntarily waive his Miranda rights or make a voluntary 

 

10 Deoxyribonucleic acid testing of the knife matched the 

defendant's profile, and did not match the victim's profile.
10

statement to police, due to his compromised medical and 

emotional state in the hospital. In the alternative, he 

contends that when certain evidentiary issues and errors in the 

prosecution's closing are considered in concert with the 

spontaneity of the attack, a reduced verdict of murder in the 

second degree, pursuant to G. L. c. 278, § 33E, would be more 

consonant with justice. The defendant also maintains that the 

stabbing here was not more aggravated or unusual than other 

instances of homicide so as to sustain a conviction on the 

theory of extreme atrocity or cruelty. We address each of his 

claims in turn.

a. Motion to suppress. The defendant contends that the 

statements he made to police should have been suppressed because 

he did not knowingly and voluntarily waive his rights, and his 

statements were not voluntary, given the physical and emotional 

distress he was experiencing at the hospital. Following an 

evidentiary hearing, a Superior Court judge, who was not the 

trial judge, denied the motion to suppress. He found that the 

defendant had responded appropriately to the officers' 

preliminary questions gauging his alertness, as well as to 

questions about his level of pain, his medications, and his 

state of orientation. The judge noted that the defendant also 

responded appropriately to more substantive questions, and 

evidently understood the circumstances and nature of the 
11

questioning.11 The motion judge found also that the entirety of 

the interview was conducted in a sympathetic and conversational 

tone to accommodate the defendant's fragile state. The judge

determined that the Commonwealth had demonstrated, beyond a 

reasonable doubt, that the defendant's physical and mental 

condition did not negate his ability knowingly and voluntarily 

to waive his rights, or to provide a statement to police.

"In reviewing a decision on a motion to suppress, we accept 

the judge's subsidiary findings absent clear error, but conduct 

an independent review of [his or her] ultimate findings and 

conclusions of law" (quotation and citation omitted). See 

Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). We 

defer to the judge's determination of the weight and credibility 

to be given to oral testimony presented at a motion hearing, but 

we may independently review the documentary evidence before the 

judge. See Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018).

Where, as here, a defendant makes statements to police 

during a custodial interrogation, the Commonwealth bears the 

 

11 As to the nature of the questioning, the motion judge 

also found that the defendant was able to detail the dispute 

with his boyfriend, the stabbing, and the suicide attempt. He 

also made statements attempting to minimize his culpability, 

including repeatedly noting that he suffered from mental 

illnesses and had "blacked out" during the stabbings. See

Commonwealth v. Tremblay, 480 Mass. 645, 656-658 (2018)

(defendant was responsive to police questions and even minimized 

his culpability, leading to conclusion that statements were 

voluntarily given).
12

burden of proving, beyond a reasonable doubt, that the

defendant's waiver of his or her Miranda rights was "voluntary, 

knowing, and intelligent."12 See Commonwealth v. Clarke, 461 

Mass. 336, 342 (2012); Commonwealth v. Gaboriault, 439 Mass. 84, 

89 (2003). The Commonwealth also must show that any statement

made after a waiver was voluntary, as a product of the 

defendant's "rational intellect and free will." See

Commonwealth v. Hoose, 467 Mass. 395, 403 (2014). "Although we 

inquire separately into the voluntariness of the defendant's 

waiver of Miranda rights and the voluntariness of the 

statements, both inquiries require us to examine the totality of 

the circumstances surrounding the making of the statements to 

ensure that the defendant's will was not overborne." Id. 

Relevant factors in this analysis include the manner in which 

the interrogation is conducted, whether Miranda warnings were 

given, the defendant's physical and mental condition, and the

defendant's individual characteristics, such as age, education, 

intelligence, and emotional stability. See id. The court will 

indulge all "reasonable presumption[s] against waiver." 

Commonwealth v. Bradshaw, 385 Mass. 244, 267 (1982).

 

12 It is undisputed that the defendant was in custody for 

purposes of Miranda v. Arizona, 384 U.S. 436, 451 (1966). See 

generally Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001).
13

We discern no error in the motion judge's findings that the 

defendant's mental capacities and rational intellect were not 

impaired to such a degree as to render his waiver or statements 

involuntary. Although statements that are "attributable in 

large measure to a defendant's debilitated condition" are not 

considered to be voluntarily made (citation omitted), see 

Commonwealth v. Waweru, 480 Mass. 173, 180 (2018), "[t]he fact 

that a defendant may have been in a disturbed emotional state, 

or even suicidal, does not automatically make statements 

involuntary," see Commonwealth v. LeBlanc, 433 Mass. 549, 555 

(2001). Indeed, we repeatedly have held that a defendant who is 

suffering from emotional or physical distress still may provide 

voluntary statements so long as he or she demonstrates an 

intelligent comprehension of his or her Miranda rights and of 

the circumstances. See, e.g., Commonwealth v. Bell, 473 Mass. 

131, 141-142 (2015), cert. denied, 136 S. Ct. 2467 (2016)

(statements made by defendant were voluntary despite significant 

burns and intoxication because he "demonstrated awareness of the 

situation at the scene . . . and did not show any great 

confusion"); Commonwealth v. Clark, 432 Mass. 1, 11, 12-13 

(2000) (statements made by defendant shortly after he sustained 
14

gunshot wound to head were voluntary, given evidence that he had 

been "alert and oriented").13

Similarly, here, the defendant was not demonstrating 

confusion or otherwise "acting irrationally [during the 

interrogation]" while speaking with police (citation omitted). 

See Commonwealth v. McNulty, 458 Mass. 305, 328 (2010). 

Although the defendant was suffering from physical and emotional 

injuries, the motion judge found that any medications he took 

for those conditions or for his anxiety and depression did not

hinder his ability to think clearly. See Waweru, 480 Mass. 

at 176-177, 181 (despite defendant's suicide attempt after 

stabbing victim, his statements to psychiatrist and police were 

voluntary, as he understood their questions and responded 

appropriately); Bell, 473 Mass. at 142 (relevant evidence is 

suspect's "rational understanding of the situation and a 

 

13 The defendant would have us distinguish his case from 

others concerning an injured suspect's statement, on the ground

that police did not know whether the defendant was taking 

medication, or otherwise presented with a condition that might 

hinder his ability to think clearly, because the defendant's

treatment providers had refused to give police access to his 

medical records. As the Health Insurance Portability and 

Accountability Act, 42 U.S.C. § 1320d-6, prevents medical 

professionals from disclosing a patient's medical records, 

police are unable, in many instances, to ascertain a defendant's 

medical information. We have not adopted an approach that looks 

solely at one such factor, and decline to do so today. See

Commonwealth v. Hoose, 467 Mass. 395, 403 (2014) (requiring us

to examine "totality of the circumstances" in voluntariness

inquiry).
15

voluntary decision to speak to police"). Because the 

defendant's waiver of rights and his statements to police were 

knowing and voluntary, we discern no error in the denial of his 

motion to suppress.

b. Relief under G. L. c. 278, § 33E. With respect to the 

theory of deliberate premeditation, the defendant challenges 

testimony from Bianca and Valentin about the statements he made 

as he stabbed the victim. He also contends that the prosecutor 

argued facts not in evidence and misstated the law regarding 

issues that went to the heart of the defense. The defendant 

maintains that, in light of the spontaneity of the attack, the 

evidence of deliberate premeditation was so "tainted" that a 

verdict on this theory cannot stand. See Commonwealth v. Glass, 

401 Mass. 799, 802 n.2 (1988) (even where evidence of 

premeditation is sufficient, it nonetheless may be "so tainted 

by the error that it created a substantial likelihood of a 

miscarriage of justice"). In this regard, as far as we can 

tell, the defendant posits that the cumulative effect of the

issues warrants the exercise of our extraordinary authority 

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

the second degree.

i. Witness testimony. The defendant argues that Bianca's 

testimony about his statement to the victim ("I told you I was 

going to kill you") constituted inadmissible hearsay. He also 
16

claims that, because Valentin was substantially impeached with 

her omission of the defendant's statement in her report to 

police and to the grand jury, Valentin's trial testimony should 

be given no weight. Because neither statement was objected to 

at trial, we review for a substantial likelihood of a 

miscarriage of justice. See Commonwealth v. Seino, 479 Mass. 

463, 470 (2018).

In regard to Bianca's testimony, the defendant contends 

that it constitutes impermissible hearsay because his statements 

were relayed to Bianca, who does not speak Spanish fluently, 

through her mother, who does. In general, "evidence based on a 

chain of statements is admissible only if each out-of-court 

assertion falls within an exception to the hearsay rule." 

Commonwealth v. Alcantara, 471 Mass. 550, 558 (2015), quoting

Commonwealth v. McDonough, 400 Mass. 639, 643 n.8 (1987). See 

Mass. G. Evid. § 805 (2019) (statements of multiple out-of-court 

declarants are admissible only if each statement falls within

established hearsay exception).

Each of the statements conveyed in the chain at issue here 

falls within an exception to the hearsay rule and therefore is 

admissible. First, the defendant's statements are not 

considered hearsay. See Commonwealth v. Bright, 463 Mass. 421, 

426 n.8 (2012) (admissions of party opponent are not considered 

hearsay). Second, Bianca testified that, although her mother 
17

told her what the defendant had said, she had heard and 

understood portions of the defendant's statement in Spanish 

before her mother translated it.14 Insofar as Valentin relayed 

the rest of the defendant's statement to Bianca, it was 

nonetheless admissible under the spontaneous or excited 

utterance exception to the rule against hearsay. See Mass. 

G. Evid. § 803(2) (2019) (spontaneous utterance if event is 

"sufficiently startling to render inoperative the normal 

reflective thought processes of the observer, and . . . the 

declarant's statement was a spontaneous reaction to the 

occurrence"). Indeed, both women were percipient witnesses to 

the stabbing, relaying startling information to the 911 

operator, and fled the apartment in fear for their lives. Cf. 

Alcantara, 471 Mass. at 558 (statements made on 911 call, 

conveying information relayed by different percipient witness, 

were admissible as excited utterances).

Moreover, we are unpersuaded by the contention that, 

because Valentin was impeached with a prior inconsistent 

statement or omission, no weight should be given to her trial 

testimony. Where trial counsel carefully pursued and developed 

the inconsistencies in her testimony during cross-examination, 

 

14 Specifically, Bianca testified that she understood the 

Spanish words for "kill you," and that the word "motherfucker" 

was uttered in English.
18

the credibility of her statements was a matter properly reserved 

for the jury. See, e.g., Commonwealth v. Cannon, 449 Mass. 462, 

469 n.17 (2007) (credibility of witness's statement is province 

of fact finder); Commonwealth v. Triplett, 398 Mass. 561, 567 

(1986) (fact finder must determine weight and credibility of 

testimony).15 We thus discern no substantial likelihood of a 

miscarriage of justice stemming from the admission of, or weight 

given to, either witness's testimony.

ii. Prosecutor's closing argument. The defendant

challenges the propriety of the prosecutor's closing argument in 

two respects. First, he contends that, by speculating about the 

defendant's state of mind when he closed the bedroom door, the 

prosecutor argued facts that were not supported by the evidence,

and he attempted to negate the defendant's statement that he had 

"lost it" with an argument about premeditated calculation. The

defendant further argues that the prosecutor misstated the 

 

15 Although the defendant does not raise the issue, we 

conclude that trial counsel's failure to further impeach 

Valentin with the omission of the defendant's statement, "I told 

you I was going to kill you," in her second statement to police 

did not amount to ineffective assistance of counsel. Trial 

counsel impeached Valentin with this omission from her grand 

jury testimony, as well as through another witness, the 

investigating officer, who testified that if Valentin had made 

such a claim, he likely would have included it in his police 

report. See Commonwealth v. Fisher, 433 Mass. 340, 357 (2001) 

(counsel not ineffective in failing to impeach witness with 

prior inconsistent statement where witness already was impeached 

through other means).
19

applicable law by repeatedly telling the jury that sadness, 

anger, hurt, and frustration do not create "justification" for 

murder. The defendant contends that the repeated use of the 

word "justification" implied that he was required to demonstrate 

a justification for the killing in order to succeed in his 

defense. Because there was no objection to either statement, we 

review for a substantial likelihood of a miscarriage of justice. 

See Seino, 479 Mass. at 470.

A prosecutor may not "misstate the evidence or refer to 

facts not in evidence," and may not play "on the jury's sympathy 

or emotions, or comment on the consequences of a verdict"

(citation omitted). See Commonwealth v. Carriere, 470 Mass. 1, 

19 (2014). A prosecutor may, however, argue zealously "for a 

conviction based on the evidence and on inferences that may 

reasonably be drawn from the evidence." See id., quoting 

Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). "Remarks made 

during closing arguments are considered in the context of the 

entire argument, and in light of the judge's instructions to the 

jury and the evidence at trial." Commonwealth v. 

Viriyahiranpaiboon, 412 Mass. 224, 231 (1992). "The absence of 

an objection at trial may be viewed as 'some indication that the 

tone [and] manner . . . of the now challenged aspects of the 

prosecutor's argument were not unfairly prejudicial.'" 

Carriere, supra, quoting Commonwealth v. Mello, 420 Mass. 375, 
20

380 (1995). Moreover, "[i]nstructions may mitigate any 

prejudice in the final argument." See Carriere, supra, quoting 

Kozec, supra at 517.

First, the defendant claims that the prosecutor 

mischaracterized his statements to police. In this regard, the 

prosecutor argued:

"And [the defendant] walked back into that bedroom. He 

says he was in a rage, but he thought about it enough, he 

closed the door behind him. He even told the police that 

he closed the door behind him because he didn't want the 

police to think that [Valentin] and Bianca were just 

watching him as he did this. He closed the door behind 

him. And that's when he attacked [the victim]."

As best we can tell, the defendant takes issue with the portion 

of that statement discussing his state of mind as he closed the 

door, especially because it negated the defendant's earlier 

statement in which he said he had blacked out in a rage. The 

prosecutor's argument, however, is a fair inference drawn from 

the evidence at trial. See Carriere, 470 Mass. at 22

(prosecutor may argue reasonable inferences grounded in 

evidence). In fact, Valentin and Bianca both testified that the 

defendant walked past them and closed the door behind him before 

stabbing the victim. The defendant also told police, "Obviously 

I closed the doors when it happened." Although perhaps 

hyperbolic, as the prosecutor surely could not have known what 

the defendant was thinking as he closed the door, the 

prosecutor's remarks did not cross the line between fair and 
21

improper argument in light of the evidence presented at trial. 

Even if it were not a fair inference, the judge properly 

instructed the jury on the role of closing arguments, the 

reasonable inferences the jurors may draw from evidence at 

trial, and their role as the sole finders of fact.16 See id. at 

19. Were there any question about a misstep in the prosecutor's 

statements, it did not create a substantial likelihood of a 

miscarriage of justice. See id.; Mello, 420 Mass. at 380.

Next, the defendant asserts that the prosecutor misstated 

the law of voluntary manslaughter and mitigating circumstances 

in closing, when he repeatedly used the word "justification." 

In this regard, the prosecutor argued:

"It's not unusual in a breakup that you are scared or 

angry or frightened. But those things, ladies and 

gentlemen, are not mitigation. They are not a 

justification for what the defendant did. They are 

not an excuse to commit murder. . . . [U]nhappiness 

is not a justification for murder. Sadness is not a 

justification for murder. . . . Nobody wants to see 

somebody that they loved walk out the door. But that 

is not a justification for killing somebody. . . . A 

broken heart is not justification for murder."

We agree that the repeated use of the word "justification" 

throughout the prosecutor's closing was more than just an 

exercise in searching for a synonym for mitigation; it 

 

16 Moreover, prior to closing arguments, the judge told the 

jury: "I always instruct jurors, do not take notes on the 

closing arguments of counsel. And why do I tell you that? Any 

ideas?" A juror promptly responded that it was because a 

closing argument "is not evidence."
22

improperly suggested to the jury that the defendant was required 

to demonstrate justification for killing the victim. Apart from 

being colloquially inapposite, the two words have distinct 

meanings in the law. See Commonwealth v. Glover, 459 Mass. 836, 

842 (2011) (noting difference between justification defense, 

which could result in acquittal, and mitigation defense, such as 

heat of passion, which at best yields conviction of lesser 

offense of voluntary manslaughter).

Notwithstanding the inappropriate nature of these remarks, 

the judge properly instructed the jury on the law of mitigation 

and voluntary manslaughter in his final charge, as well as the 

Commonwealth's burden of proof in these regards. See 

Commonwealth v. Morales, 461 Mass. 765, 784-785 (2012) 

(prosecutor's misstatement of law was error, but judge's 

instructions rendered error harmless). In light of these 

instructions, which we must presume were heeded, see id. at 784, 

we conclude that the prosecutor's misstatements did not create a 

substantial likelihood of a miscarriage of justice.

iii. Premeditation. The defendant contends also that 

there was no evidence of a plan to kill here, such that a 

conviction of murder in the second degree would be more 

consonant with justice.17 In determining whether a conviction of 

 

17 The defendant also contends that the trial judge abused 

his discretion in denying a motion to reduce the verdict 
23

murder in the first degree is consonant with justice, "a primary 

consideration . . . is whether the killing reflects spontaneity 

rather than premeditation" (quotations and citation omitted). 

See Commonwealth v. Fernandez, 480 Mass. 334, 344 (2018). "In 

order to prove deliberate premeditation, the Commonwealth must 

show that 'the plan to kill was formed after deliberation and 

reflection.'" Id., quoting Commonwealth v. Bolling, 462 Mass. 

440, 446 (2012). Although no particular length of time is 

required, "the Commonwealth must demonstrate that the defendant 

had the opportunity to reflect, however brief," before making a 

decision to kill. See Fernandez, supra at 345 (noting that key 

is "sequence of the thought process rather than the time which 

is taken to think" [citation omitted]). As each case depends on 

its own particular set of facts, no single factor is 

determinative. Id. See Commonwealth v. Colleran, 452 Mass. 

417, 431-432 (2008) (setting forth range of factors to 

consider).

This case, however, does not suggest plain spontaneity or 

tainted premeditation. Rather, during a quarrel with his longtime boyfriend, the defendant left the bedroom, walked into the 

 

pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 

1502 (1995). For many of the same reasons discussed, we discern 

no abuse of discretion in the motion judge's decision to deny 

the defendant's motion to reduce the verdict. See Commonwealth

v. Perez, 477 Mass. 677, 681-682 (2017).
24

kitchen, waited approximately ninety seconds, picked up a knife, 

and returned to the bedroom, closing the door behind him before 

stabbing his partner to death. Cf. Fernandez, 480 Mass. at 345 

(no spontaneity where defendant briefly left scene and returned 

with weapon to kill victim); Commonwealth v. Watkins, 373 Mass. 

849, 852 (1977) (evidence that defendant, after quarrel with 

victim, went to kitchen, picked up knife, and returned to stab 

victim sufficient to sustain conviction of murder in first 

degree). On these facts, we discern no evidence of spontaneity

or "tainted" premeditation that, in light of the combined weight 

of other purported errors, warrants the exercise of our 

extraordinary authority to reduce the verdict under G. L. 

c. 278, § 33E.

c. Extreme atrocity or cruelty. In regard to the second 

theory on which his conviction rests, the defendant contends 

that the killing in this case was not extremely atrocious or 

cruel because he did not take pleasure in the victim's 

suffering. He also points to data indicating that stabbings are 

not a particularly "extreme" or unusual method of homicide; 

indeed, the use of a stabbing or cutting instrument is the 

second most common form of homicide in the United States, 

following firearms. See generally United States Department of 

Justice, Crime in the United States: Murder by State, Types of 

Weapons, 2015, https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-
25

in-the-u.s.-2015/tables/table-20 [https://perma.cc/KH7N-TG3K]. 

As stabbings are so common, the defendant cautions that the 

court should avoid sweeping every death by stabbing into the 

category of murder in the first degree on a theory of extreme 

atrocity or cruelty. Although the defendant is correct that a 

killing by stabbing does not necessarily surpass the ordinary 

cruelty inherent in the taking of a human life, the evidence in 

this case demonstrated extreme atrocity or cruelty.

In determining whether a killing was committed with extreme 

atrocity or cruelty, we look to a set of well-established 

factors. See Commonwealth v. Cunneen, 389 Mass. 216, 227

(1983). These include "indifference to or taking pleasure in 

the victim's suffering, consciousness and degree of suffering of 

the victim, extent of physical injuries, number of blows, manner 

and force with which delivered, instrument employed, and 

disproportion between the means needed to cause death and those 

employed." Id.

Here, the defendant stabbed the victim thirteen times, 

including inflicting wounds through his head and his chest, 

which caused the victim's lungs to collapse and fill with blood. 

One of the wounds was more than seven inches deep. The victim's 

death was not instantaneous, and he suffered several defensive 

wounds. He also called out for help while he was being stabbed, 

and begged the defendant to stop. Moreover, Valentin attempted 
26

to intervene, but, despite her best efforts, the defendant 

forcefully pushed her aside and continued stabbing the victim. 

Given the number of blows, the manner of attack, the size of the 

butcher's knife, and the medical expert's opinion concerning the 

likely degree of suffering on the part of the victim, we 

conclude that there was sufficient evidence to support the 

theory of extreme atrocity or cruelty in this case. Compare 

Commonwealth v. Young, 461 Mass. 198, 204 (2012) (defendant 

stabbed victim four times and inflicted eight superficial cuts;

victim experienced conscious suffering before his death).

Finally, pursuant to our duty, we have carefully reviewed 

the record and see no other cause to exercise our extraordinary 

power to grant relief under G. L. c. 278, § 33E.

Judgment affirmed.