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SJC-10849

COMMONWEALTH vs. JOSE TORRES.

Suffolk. April 11, 2014. - August 18, 2014.

Present: Ireland, C.J., Spina, Gants, Duffly, & Lenk, JJ.1

Homicide. Practice, Criminal, Capital case, New trial, 

Assistance of counsel, Argument by counsel, Instructions to 

jury. Evidence, Opinion, Expert opinion. Witness, Expert.

Indictment found and returned in the Superior Court 

Department on June 26, 2008.

The case was tried before Elizabeth M. Fahey, J., and a 

motion for a new trial, filed on October 19, 2011, was 

considered by her.

Emanuel Howard for the defendant.

Donna Jalbert Patalano, Assistant District Attorney (David

A. Deakin, Assistant District Attorney, with her) for the 

Commonwealth.

SPINA, J. The defendant was convicted of murder in the 

first degree on theories of deliberate premeditation and extreme 

atrocity or cruelty. He filed a motion for a new trial alleging 

ineffective assistance of counsel, and he requested an 

 

1 Chief Justice Ireland participated in the deliberation on 

this case prior to his retirement.
2

evidentiary hearing. The trial judge denied the motion without 

a hearing. Her indorsement in the margin said, "for the reasons 

stated in [the Commonwealth's] opposition." On appeal the 

defendant alleges error in the denial of his motion for a new 

trial, the judge's failure to make findings, and the judge's 

failure to hold an evidentiary hearing on the motion. We affirm 

the conviction and the denial of the defendant's motion for a 

new trial. We decline to exercise our power under G. L. c. 278, 

§ 33E.

1. Background. The defendant moved into his girl friend's 

third-floor apartment in the Dorchester section of Boston in the 

middle of February, 2008. His girl friend, the victim, had four 

children, the oldest of whom was six years old. On March 8, 

2008, Kristina Ortiz visited the victim at her apartment. The 

defendant and the victim's four children were there. As Ortiz 

was leaving, the defendant made a disparaging remark about the 

victim's children.

That evening the victim sent her six year old son down to 

the first-floor apartment of a neighbor three times to ask the 

neighbor to come up to his mother's apartment. Each time the 

neighbor said she would be right up, but became distracted by 

her own children and failed to appear. At 9 P.M. the defendant 

went down to the first-floor apartment and told the neighbor 

that his "wife was waiting" for her. The neighbor went up to 
3

the victim's apartment at around 9:30 P.M. The victim asked the 

neighbor if the neighbor knew where she could get some cocaine. 

The neighbor was surprised because she knew the victim was 

trying to stop using cocaine. The neighbor said she did not 

know, and left after a brief conversation.

Sometime between 2 and 3 A.M. on March 9 the first-floor 

neighbor heard "an unusual thud" from an apartment above hers. 

The victim's apartment was two floors directly above her 

apartment, but the neighbor could not tell if the noise had come 

from the victim's apartment. Shortly thereafter she heard 

footsteps coming down the stairs. She went back to bed.

At about 11:15 A.M. on March 9 the victim's two eldest 

children appeared at the first-floor neighbor's apartment. The

oldest child said, "My mommy and daddy had a fight and he killed 

her. She's dead." He added that the defendant had left. The 

next oldest, who was five years old at the time of the incident, 

testified at trial to the physical beating he saw the defendant 

inflict on his mother. He saw the defendant push her under a 

leg of the kitchen table, then sit on the table. The defendant 

then locked the children in their bedroom.2 The neighbor went 

upstairs and found the victim lying lifeless on the kitchen 

floor in a pool of blood. An electrical cord was pulled tight 

around her neck. The kitchen was in a state of disarray: 

 

2 The record does not reflect how the children left their 

bedroom.
4

furniture was overturned, the kitchen table was broken, and 

laundry was strewn about the room. The neighbor gathered the 

children, brought them to her apartment, and telephoned the 

police.

In the meantime, at about 10 A.M. on March 9, the defendant 

had gone to the home of Doris Serrano, where the defendant's 

father lived in the basement. He told his father that the 

victim had "kicked [him] out." His father asked about scratches 

on the defendant's face. The defendant explained that the 

victim had scratched him. The defendant left his duffle bag and 

knapsack in his father's room and went out to have a beer. 

Later that afternoon the defendant visited his cousin Iliana 

Pagan (Serrano's daughter), who was a close friend of the 

victim. Pagan's fiancé was present. The defendant explained 

that the victim had scratched his face during an argument over 

drugs. During the defendant's visit Pagan received a telephone 

call in which she learned that the victim had been found dead in 

her home. Pagan burst into tears. When her fiancé asked what 

was wrong, she broke the news in a voice loud enough for the 

defendant to hear. The defendant said nothing. He bowed his 

head and put his face in his hands.

Police tried to locate the defendant. They went to 

Serrano's apartment and asked if Serrano would get in touch with 

him. Serrano reached the defendant by cellular telephone and 
5

told him that his father was looking for him. The defendant 

returned to Serrano's apartment within minutes. The police 

asked him to accompany them to Boston police headquarters for 

questioning. He agreed.

The defendant made a statement that was audiorecorded by 

police. He told police that he loved the victim and was 

supposed to marry her. He described what had happened the night 

of March 8, saying that the victim went "bi-polar" on him. He 

tried to hug her, but she scratched his face. She threatened to 

kill herself and call the police if he did not leave. He 

gathered all his belongings into a duffle bag (which was 

"heavy") and a backpack, and then left. He took a bus to his 

father's home, arriving at about 1 A.M. He denied striking the

victim or killing her. He also said he loved her children. The 

defendant said he could not have hit the victim with the kitchen 

table because he has arthritis and scoliosis, and could not lift 

heavy objects.

The pathologist who performed the autopsy determined that 

death was caused by a combination of ligature strangulation 

(probably by the electrical extension cord found around the 

victim's neck) and a sharp incision to the front of the victim's 

neck that severed her right carotid artery and jugular vein, and 

completely divided her trachea (windpipe). The strangulation 

occurred before the incision wound. The victim had suffered 
6

blunt trauma to her head. She also had been exposed to a 

caustic chemical, such as bleach, after death. The pathologist 

could not determine if the incision wound was caused by drawing 

a sharp blade from right to left or from left to right.

Police recovered the duffle bag and backpack the defendant 

had left in his father's room. Inside the duffle bag was a 

"CharlieCard," a fare card used for Massachusetts Bay 

Transportation Authority (MBTA) services, that had been used at 

11:33 P.M. on March 8 on an MBTA bus that passed within a few 

blocks of the victim's apartment. Also inside the duffle bag 

was a receipt from a 7-Eleven store that evidenced a cash 

purchase at 12:02 A.M. on March 9, 2008. The backpack contained 

personal items, including a notebook, a pair of sandals, and 

some clothing.

The notebook had served as a journal. The defendant had 

made an entry on January 11, 2008, in which he wrote:

"Today was a real good day. But out of nowhere I got 

filled with rage and a lot of anger for no apparent reason. 

I'm sick and tired of my mental illness. I can't control 

my actions. I'm afraid that one day I'm going to blow-up 

on someone. I'm on my meds like I'm supposed to be. . . . 

It's like all the people who done me wrong are targets. 

The way I see it it is like one thing in my mind, 

Liquidation time. Vaporize all the wrong doer's to me and 

my life."

The tread on the defendant's left sandal was similar in 

size and pattern to a footwear impression made in blood within a 

few feet of the victim's body. The impression left at the crime 
7

scene lacked sufficient detail to support a definitive 

comparison.

The victim was found to be a potential source of 

deoxyribonucleic acid (DNA) evidence recovered from reddishbrown stains on the heel of the defendant's right sandal, three 

areas on the defendant's duffle bag, and the handle and blade of 

a knife found in the victim's kitchen sink, as well as a brown 

stain on the defendant's shirt, where 1 in 39 quintillion 

Caucasians, 1 in 1.7 sextillion African Americans, and 1 in 260 

quadrillion Southeastern Hispanics would have the same genetic 

profile. The victim was also determined to be a possible source 

of DNA recovered from reddish-brown stains containing a mixture 

of DNA from two individuals on the defendant's denim pants, 

where 1 in 44 trillion Caucasians, 1 in 2.5 quadrillion African 

Americans, and 1 in 1.8 trillion Southeastern Hispanics would 

have the same genetic profile. Both the victim and the 

defendant were determined to be potential contributors to a 

mixture of DNA from three or more individuals found on the upper 

half of the sole of the defendant's right sandal.

The defense theory was that the defendant did not kill the 

victim. He had no motive to kill the victim, whom he loved, and

he left her apartment after they argued. He contended there was 

not enough time between the visit by the first-floor neighbor at 

9:30 P.M. and the CharlieCard activity at 11:33 P.M. for him to 
8

kill the victim, pack his belongings, and attempt to cover his 

tracks at the scene with bleach or other caustic substance.

2. Standard of review. The defendant asserted multiple 

claims of ineffective assistance of counsel in his motion for a 

new trial. Because he has been convicted of murder in the first 

degree and his appeal from the denial of his motion for a new 

trial has been consolidated with his direct appeal, we consider 

his claims of ineffective assistance of counsel to determine if 

any error has created a substantial likelihood of a miscarriage 

of justice, as required by G. L. c. 278, § 33E. This standard 

of review is more favorable to the defendant than the 

constitutional standard for determining ineffective assistance 

of counsel. See Commonwealth v. Wright, 411 Mass. 678, 682 

(1992). Under this more favorable standard, we consider whether 

there was error by trial counsel, regardless whether trial 

counsel's performance fell measurably below that of an ordinary 

fallible lawyer, and, if there was, whether the error was likely 

to have influenced the jury's verdict. Id. However, a 

strategic decision by an attorney constitutes error only if it 

was manifestly unreasonable when made. See Commonwealth v. 

Smith, 456 Mass. 476, 482 (2010).

A judge is required to conduct an evidentiary hearing on a 

motion for a new trial only if a substantial issue is raised by 

the motion or affidavits. See Commonwealth v. Wallis, 440 Mass. 
9

589, 596 (2003); Mass. R. Crim. P. 30 (c) (3), as appearing in 

435 Mass. 1501 (2001). In that regard a judge considers the 

seriousness of the issues raised and the adequacy of the 

defendant's showing on those issues. See Commonwealth v. 

DeVincent, 421 Mass. 64, 67 (1995). A judge is not required to 

credit assertions in affidavits submitted in support of a motion 

for a new trial, and may evaluate them in light of factors 

pertinent to credibility, including bias, self-interest, and 

delay. See Commonwealth v. Grant, 426 Mass. 667, 673 (1998). A 

judge may rely on his or her knowledge of the trial and 

evaluation of the witnesses and evidence at the trial when 

reaching a decision on a motion for a new trial, including 

whether to decide the motion without an evidentiary hearing. 

See Commonwealth v. DeVincent, supra at 69.

The judge must make findings of fact necessary to resolve 

the defendant's allegations of error of law in a motion for a 

new trial. See Mass. R. Crim. P. 30 (b), as appearing in 435 

Mass. 1501 (2001). A judge's failure to make findings required 

by rule 30 (b) is "not fatal . . . where the ultimate conclusion 

is clearly evident from the record," Commonwealth v. Lanoue, 392 

Mass. 583, 586 n.2 (1984), or where we are satisfied that "on 

review of the whole case manifest injustice would [not] result." 

Commonwealth v. Preston, 393 Mass. 318, 322 n.4 (1984). See 

Commonwealth v. Dunnington, 390 Mass. 472, 478 (1983).
10

3. Discussion. We turn to the defendant's claims of 

ineffective assistance of counsel.

a. The defendant faults trial counsel for failing to 

exploit the time difference between the defendant's use of his 

CharlieCard at 11:33 P.M. on March 8 and the "unusual thud" 

heard by the first-floor neighbor on March 9 between 2 and 3 

A.M. followed by the sound of footsteps she heard shortly 

thereafter going down the stairs, both of which the Commonwealth 

relied on to link the defendant to the killing. He also faults 

counsel for failing to request an alibi defense and pursue a 

third-party culprit defense (which he claims would explain the 

thud and footsteps heard by the first-floor neighbor).

In his closing argument trial counsel did in fact highlight 

inconsistencies in the timeline. However, the time of death had 

not been established by the autopsy. The pathologist could only 

opine that the victim had been dead more than twenty-four hours 

by the time of the autopsy on March 11, 2008. Because it was 

not clear precisely when death occurred, an alibi defense would 

not likely have succeeded where the defendant did not have an 

alibi for the time between 9:30 and 11:33 P.M. on March 8, when 

the jury could have determined that the killing occurred.

Had trial counsel pursued a third-party culprit defense, 

about which the defendant offers no details, the Commonwealth 

was ready to offer evidence of the defendant's jailhouse 
11

confession to another inmate that included many details not 

publicly known, together with a detailed diagram of the crime 

scene. After trial counsel announced that the defendant would 

not testify, the prosecutor decided not to call as a witness at 

trial the inmate to whom the defendant had confessed. Counsel's 

decision to make do with what he had rather than pursue a highly 

risky strategy not likely to produce favorable results (but 

likely instead to yield highly damaging admissions from the 

defendant) was a reasonable tactical decision we infer from the 

record. "Neither ineffectiveness nor a likelihood of a 

miscarriage of justice arise from counsel making the best he can 

out of the circumstances of the crime." Commonwealth v. Hung 

Tan Vo, 427 Mass. 464, 471 (1998).

This theory of ineffectiveness was not supported by any 

affidavit filed on behalf of the defendant.3 We are satisfied 

that no substantial question was presented that required an 

evidentiary hearing, and that on review of the whole case there 

was no substantial likelihood of a miscarriage of justice in the 

absence of written findings by the judge. The existence of a 

reasonable tactical decision by trial counsel in proceeding as 

he did is clearly evident from the record.

 

3 Trial counsel submitted an affidavit in response to 

specific questions posed by appellate counsel concerning each 

issue raised in the motion for a new trial (and on appeal). 

Trial counsel's response was: "As to these topics, I cannot 

remember whether I specifically considered these issues, or not; 

however, I remember leaving 'no stone unturned' in this case."
12

b. The defendant contends that trial counsel was 

ineffective for failing to object to testimony by Serrano to the 

effect that she lied to the defendant by telling him his father 

was looking for him. She said she knew that if she had said the 

police were looking for him he would not come. The defendant 

argues that this was impermissible comment on his credibility. 

See Commonwealth v. Triplett, 398 Mass. 561, 567 (1986).

Although probably objectionable, Serrano's remark did not 

create a substantial likelihood of a miscarriage of justice. 

Contrary to the defendant's assertion, the prosecutor did not 

refer to, or even allude to, Serrano's statement in his closing 

argument. Trial counsel elicited from Serrano on crossexamination that she had been with the victim and the defendant 

for about fifteen minutes on March 6, two days before the 

victim's death, and that they appeared to be getting along. 

Serrano detected no tension between them at the time. Moreover, 

the defendant went with police voluntarily to give a statement, 

offering no resistance. We are satisfied that Serrano's remark 

was fleeting and isolated. It was hardly the kind of 

prejudicial comment that permeates the testimony of a key 

Commonwealth witness on a critical issue in the case such that a 

new trial is required. Compare Commonwealth v. Triplett, supra. 

Counsel was not ineffective.
13

c. The defendant asserts that trial counsel was

ineffective for failing to recognize that the incision on the 

victim's neck was caused by a left-handed person, for failing to 

recognize from available information that the defendant was 

right-handed, and for failing to consult with an appropriate 

expert to show that the defendant could not have caused the 

incision wound. This is the only claim of ineffective 

assistance of counsel supported by affidavit.

The defendant presented the affidavit of a physician who is 

a recognized expert on knife wounds and has testified as an 

expert both for the Commonwealth and for defendants. Based on 

the autopsy report and autopsy photographs, it was the 

physician's opinion that "[t]he pattern of this incision [wound 

to the neck] is most consistent with an assailant delivering the 

incision using his left hand while positioned behind the 

victim." The defendant filed an affidavit stating that he is 

and always has been right-handed. Affidavits from his mother 

and his older sister similarly attested to his right-handedness. 

The defendant also submitted medical records indicating two 

injuries purportedly consonant with right-handedness.

The defendant's assertions that trial counsel failed to 

recognize critical details is purely speculative. In addition, 

even if this defense had been presented to the jury, it likely 

would not have influenced the jury's conclusion. See 
14

Commonwealth v. Wright, 411 Mass. at 682. The defendant told 

the detectives who interviewed him, "I cannot lift heavy objects 

. . . I cannot really grasp, like grasp, certain things . . . . 

Any time I try to grasp something hard, all I feel is a pain and 

it goes straight numb cuz you can feel the bone right here. I 

don't do much lifting. I can't exercise." Although the 

defendant may be right-handed, he told police he is unable to 

use his major hand for rigorous projects. Moreover, he has not 

claimed that he could not grasp something, such as a knife, with 

his left hand and use it to cut the victim's throat. Nor has he 

claimed that he would not have been able to strangle the victim 

with an electrical cord. The defendant admitted carrying his 

heavy duffle bag and his backpack when he left the victim's 

apartment to go to his father's home. The jury could well have 

believed that the defendant could not have cut the victim's 

throat with his right hand, but instead used his left hand. 

Moreover, the evidence strongly suggested that the victim's 

throat was cut after she was strangled. The jury could have 

concluded that the neck wound was inflicted after the victim 

collapsed to the floor, not while the defendant was standing 

behind her, as the defendant's expert implied. Cutting the 

victim's throat while she was in that condition would not have 

been difficult, even for someone with disabilities the defendant 

claims to have.
15

The defendant has not raised a substantial issue about his 

right-handedness that would have required the judge to hold an 

evidentiary hearing. The record strongly refutes a conclusion 

that only a left-handed person could have cut the victim's 

throat. Written findings were not required to resolve any 

issues. We conclude that the defendant has not shown that 

counsel was ineffective in failing to pursue this issue.

d. Contrary to the defendant's argument, trial counsel was 

not ineffective for failing to request a Daubert-Lanigan 

hearing, or otherwise failing to object to or moving to strike 

the expert testimony concerning the comparison of the treads on 

the defendant's footwear with a footwear impression made in the 

blood at the crime scene. See Daubert v. Merrell Dow Pharms., 

Inc., 509 U.S. 579 (1993); Commonwealth v. Lanigan, 419 Mass. 15 

(1994). The defendant emphasizes that of the four factors 

considered by the Commonwealth's expert, namely, (1) pattern, 

(2) size, and two individualizing factors -- (3) wear and tear, 

and (4) distinctive (random) marks -- the witness acknowledged

that only factors (1) and (2) were similar, and because there 

were insufficient details as to factors (3) and (4) to enable 

the witness to conclude that they, too, were similar, the 

witness should not have been permitted to give an opinion that 

essentially was speculative. The expert opined that a bloody 

footprint impression at the crime scene could have been made by 
16

the defendant's left sandal, but he could not give a definitive 

opinion.

Judges have broad discretion in deciding whether to admit 

expert testimony. Commonwealth v. Fitzpatrick, 463 Mass. 581, 

603 (2012). The test is whether the testimony "will assist the 

trier of fact to understand the evidence or to determine a fact 

in issue." Mass. G. Evid. § 702 (2014). See Commonwealth v. 

Dockham, 405 Mass. 618, 628 (1989). An expert opinion that is 

not definitive, but expressed in terms of observations being 

"consistent with" a particular cause, or words of similar 

effect, does not render the opinion inadmissible on the ground 

that it is "speculative." See Commonwealth v. Azar, 32 Mass. 

App. Ct. 290, 302-303 (1992), S.C., 444 Mass. 72 (2005).

Here, the expert was asked if he had an opinion "to a 

reasonable degree of scientific certainty" whether the 

defendant's left sandal was "consistent with" the bloody 

footprint observed at the crime scene. He said he had such an 

opinion, and that the defendant's left sandal "could have" made 

the bloody impression, but the impression "was not detailed 

enough for a more definitive conclusion." Having explained to 

the jury how he applied the four factors, he further explained 

how they shaped his opinion, which essentially neither excluded

the defendant's sandal nor led him to opine regarding the 

existence of a definitive match. Instead he was led to an 
17

inconclusive result. Trial counsel made this quite clear in his 

cross-examination, that is, the expert's opinion did not express 

the existence of a definitive match. The expert's opinion was

not improper. See Commonwealth v. Azar, supra.

The defendant contends that where only two out of the four 

factors produced positive results, the expert's opinion did not 

even rise to the level of a preponderance of the evidence and 

thus was speculative. We disagree. There is no suggestion in 

the record that a proper analysis requires a particular "score" 

among the four factors. Rather, as with many areas of forensic 

science, prescribed factors that must be applied when 

considering a particular matter ultimately involve a matter of 

judgment, and are intended to guide and shape the expert's 

reasoning. How the expert proceeds with the application of 

those factors is usually fertile ground for cross-examination.4 

What is often crucial is how the expert presents his or her

opinion and analysis to the jury. Of particular concern is the 

danger that the jury is misled into an understanding that the 

"science" at hand is "hard" science, when in fact it is "soft" 

science. There was no danger of that in this case. The jury 

were given the visual images of the defendant's left sandal and 

 

4 If the defendant had chosen to call an expert witness to 

give an opinion that the footwear impression was not consistent 

with the defendant's left sandal, relying on the same factors as 

the Commonwealth's expert, we have no doubt that the opinion 

would have been admissible.
18

the bloody impression made at the crime scene, and the expert 

led the jury through the factors he applied in his analysis. 

Although the witness should not have been asked if he had an 

opinion to a reasonable degree of scientific certainty but 

instead should have been asked if he had an opinion to a 

reasonable degree of certainty within the study of footwear

impression comparison, or comparable words, it was readily 

apparent to the jury that the opinion given was a matter of 

judgment, and not a scientific result driven by precise 

mathematical calculations. See Commonwealth v. Pytou Heang, 458 

Mass. 827, 848-850 (2011). It was made clear to the jury that 

this was a matter they could weigh for themselves, and the judge 

instructed them that they could accept or reject an expert's

opinion.

The evidence had probative value that was enhanced when 

juxtaposed with the expert testimony about the DNA evidence from 

the defendant's right sandal. The prosecutor did not argue 

unfairly from the testimony of the expert on footwear 

impression, as the defendant contends. The prosecutor spent a 

significant amount of time discussing the DNA evidence in his 

closing argument. At the end of that discussion he spoke 

briefly about the footwear impression testimony, arguing 

essentially that, when viewed together, the DNA testimony and 

the footwear impression testimony provided strong circumstantial 
19

evidence that the defendant was the person who killed the victim 

because the victim's blood made its way on to the defendant's 

right sandal at about the same time the defendant stepped in her 

blood and left a footwear impression with his left sandal. The

powerful synergistic effect of the expert testimony was an 

entirely reasonable and proper inference to draw.

Finally, the defendant has not shown that had trial counsel 

moved for a hearing under Commonwealth v. Lanigan, supra, the 

Commonwealth's expert probably would not have been allowed to 

testify. Cf. Commonwealth v. Comita, 441 Mass. 86, 91 (2004) 

("in order to prevail on an ineffective assistance of counsel 

claim on the ground of failing to file a motion to suppress, the 

defendant has to demonstrate a likelihood that the motion to 

suppress would have been successful").

For the foregoing reasons, we conclude that counsel has not 

been shown to be ineffective as to this claim.

e. There is no merit to the defendant's claim that counsel 

was ineffective for arguing on manslaughter in his closing 

argument, a theory that was inconsistent with the primary theory 

at trial, which was that the defendant was not the killer. The 

Commonwealth's case was very strong, and trial counsel carefully 

avoided the admission of the defendant's jailhouse confession. 

Trial counsel requested a manslaughter instruction based on 

theories of heat of passion and reasonable provocation (the 
20

victim first scratched his face and then "kicked [him] out"). 

His argument to the jury was more in passing than it was 

inconsistent with the primary trial strategy. He argued at the 

very end of a closing argument that spanned approximately 

twenty-three pages of the transcript, "You must return -- must 

return a verdict of not guilty. And at the most, at most, the 

government has proven manslaughter." The argument was hardly 

the "abrupt switch" in strategy about which the defendant 

complains. Rather, in the context of the entire closing 

argument and the entire trial, it was the gentle planting of a 

small seed. It served primarily as a quiet introduction to the 

judge's instructions, and not a shift in strategy. The 

requested instruction also gave the jury, and the defendant, an 

additional option between guilty of murder and not guilty of 

murder. Without an affidavit from the defendant or counsel as 

to what, if anything, was discussed in this regard, we cannot 

say that counsel's strategy was manifestly unreasonable. This 

is especially true in light of the understated manner in which 

counsel proceeded on this issue.

Finally, the judge's instruction on manslaughter was the 

model instruction. Counsel's failure to object to the 

instruction was not ineffective assistance of counsel. See 

Commonwealth v. Tassinari, 466 Mass. 340, 356-357 (2013) 

(manslaughter charge nearly verbatim to model instruction -- no 
21

error). Taken as a whole, we think the jury understood that a 

verdict of guilty of murder in the first degree required proof 

beyond a reasonable doubt of the absence of reasonable 

provocation and the heat of passion, and that there was no error 

as in Commonwealth v. Acevedo, 427 Mass. 714, 717 (1998).

For the foregoing reasons, we conclude that trial counsel 

has not been shown to have been ineffective. We also discern no 

error in the denial of an evidentiary hearing, and we conclude

that there was no substantial likelihood of a miscarriage of 

justice in the judge's failure to make written findings.

4. Review under G. L. c. 278, § 33E. We have reviewed the 

briefs and the entire record and conclude that there is no 

reason for us to reduce the degree of guilt or order a new 

trial.

Judgment affirmed.

Order denying motion for a

 new trial affirmed.