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SJC-10725

COMMONWEALTH vs. RYAN BOIS.

Norfolk. January 12, 2016. - November 10, 2016.

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

Homicide. Rape. Armed Home Invasion. Felony-Murder Rule.

Insanity. Jury and Jurors. Practice, Criminal, Capital 

case, Assistance of counsel, Jury and jurors, Conduct of 

juror, Instructions to jury, Argument by prosecutor.

Indictments found and returned in the Superior Court 

Department on August 30, 2007.

The cases were tried before Janet L. Sanders, J., and a 

motion for a new trial, filed on October 12, 2012, was heard by 

her.

Dennis Shedd for the defendant.

Tracey A. Cusick, Assistant District Attorney, for the 

Commonwealth.

LENK, J. In 2009, a Superior Court jury convicted the 

defendant of murder in the first degree on theories of extreme 

atrocity or cruelty and felony-murder. The jury found that, on 

 

1 Justices Spina, Cordy, and Duffly participated in the 

deliberation on this case prior to their retirements.
2

August 4, 2007, the defendant broke into his grandmother's house

and then raped and strangled his six-year-old cousin, who was 

staying there for the night. The defendant was convicted also

of nine other charges, including home invasion while armed with

a dangerous weapon, G. L. c. 265, § 18C.2 At trial, the 

defendant conceded that he had killed the victim, but argued

that he was not guilty by reason of insanity. On appeal from 

his convictions and from the denial of his motion for a new 

trial, the defendant asserts that (a) trial counsel was 

ineffective for failing to present certain evidence relevant to 

his insanity defense and to object to the jury charge on the 

insanity defense; (b) the judge did not respond adequately to 

reports that a juror slept through certain portions of the 

trial; (c) the evidence was insufficient on an element of the

home invasion charge, and the judge incorrectly instructed the 

jury on that element; (d) the instructions on felony-murder 

impermissibly removed from the jury's consideration one of its

elements; and (e) the prosecutor's closing argument was 

improper. The defendant asks also that, pursuant to G. L. 

c. 278, § 33E, we reduce the murder conviction to murder in the 

 

2 These included two counts of forcible rape of a child, 

G. L. c. 265, § 22A, as well as one count each of kidnapping, 

G. L. c. 265, § 26; larceny under $250, G. L. c. 266, § 30 

(lesser included offense); larceny of a motor vehicle, G. L. 

c. 266, § 28 (a); malicious destruction of property, G. L. 

c. 266, § 127; reckless driving, G. L. c. 90, § 24 (2) (a); and 

failure to stop for a police officer, G. L. c. 90, § 25.
3

second degree as more consonant with justice, because his 

actions were the product of mental illness.

We affirm the conviction of murder in the first degree, and

decline to exercise our power under G. L. c. 278, § 33E, to 

reduce the degree of guilt or to order a new trial. With 

respect to the charge of home invasion, we agree with the 

defendant that the evidence was insufficient, and that his 

conviction must be reversed. We affirm the other convictions.

1. Background. a. Facts. We recite the facts the jury 

could have found, reserving certain details for later 

discussion. In 2007, when the defendant was twenty years old,

he did not have a permanent residence and stayed with various 

friends and family members. At one point during the year, he

lived with his grandmother in Weymouth for approximately one 

month. After moving out, he asked his grandmother for money to 

pay his rent. She agreed, but insisted on driving the defendant 

to meet his landlord and to obtain a receipt. When they 

arrived, the grandmother handed the defendant the money, and he 

ran off. Several weeks later, on the morning of August 4, 2007, 

the defendant called his grandmother, asking if he could come to 

her house. She refused.

At 2 or 3 P.M. that day, the defendant attended a cookout 

at the home of his friend, Megan Phinney, staying there until 

late in the evening. At "10 or 10:30" P.M., at the defendant's 
4

request, one his friends drove him from the cookout to his 

grandmother's house, approximately one mile away. The victim, 

the defendant's six year old cousin, and her four year old 

brother were staying with his grandmother that night.

3 All three

had gone to sleep by the time the defendant arrived.

After being dropped off, the defendant climbed on top of 

his grandmother's white Ford Explorer vehicle, which was parked 

in the driveway in front of the house, below a front-facing

second-floor window. He used a "folding" knife with a threeinch blade to cut a hole in the window screen, and entered. 

Somewhere inside, he encountered the victim. He raped and 

strangled her in a front bedroom, then wrapped her body in 

bedding taken from that bedroom. He took cash from his 

grandmother's purse, as well as her cellular telephone and the 

keys to the Explorer. He left the house carrying the victim's 

body, which he placed on the floor of the Explorer between the 

front and rear seats, and drove off.

At 10:57 P.M., the defendant appeared on a surveillance 

video recording entering a convenience store approximately one 

mile from his grandmother's house. He left the store without 

purchasing anything.

 

3 The children slept in a bedroom in the back of the house, 

while the grandmother slept on a porch separated from the 

bedroom by a sliding glass door.
5

Sometime after midnight, on August 5, 2007, the defendant 

used his grandmother's cellular telephone to call one of his 

acquaintances, Terrence Gandy. He told Gandy that he "had some 

money to burn" and "wanted to get some drugs." He drove to 

Gandy's house in the Dorchester section of Boston, bought 

marijuana, and smoked it with Gandy. He told Gandy that the 

Explorer he was driving "was stolen," and asked him, "If I ever 

killed anybody, what would I do with the body to get rid of 

it[?]" Gandy replied that he should "chop it up." The 

defendant left after "fifteen to [twenty] minutes."

At approximately 1:15 A.M., a Weymouth police officer in 

the canine unit stopped the Explorer for speeding. When the 

officer approached the vehicle, however, it sped off, and the 

officer pursued it. During the chase, both vehicles reached

speeds of one hundred miles per hour. The Explorer ultimately

crashed into a taxicab while attempting to turn at an 

intersection. The defendant got out of the vehicle and ran 

away. When the defendant disregarded the officer's warning to 

stop, the officer released his police dog. The dog chased and 

subdued the defendant. As the officer approached the defendant, 

who was lying face down on the ground with his arms 

outstretched, as instructed, the defendant turned to the officer 

and started yelling, "Just shoot me in the face. Kill me now. 
6

You don't know what I did. Just kill me now. Shoot me in the 

fucking face."

The officer turned around to signal other officers who had 

arrived at the scene. When he turned his attention back to the 

defendant, he saw that the defendant had tucked his hands 

underneath his body. The defendant was holding a folding knife

with a three-inch blade, and was pleading with the officer "to 

shoot him, kill him." The defendant eventually released the 

knife and was arrested.4 He continued "ranting and raving" until

he was placed in a police cruiser.

After the defendant's arrest, officers conducted an 

inventory search of the Explorer, which they intended to have 

towed. They discovered the victim's body, naked from the waist 

down, wrapped in the grandmother's bedding. Her shorts and 

underwear were nearby. Police contacted the grandmother, who 

was unaware that the defendant had been in her house, that her 

Explorer had been stolen, or that the victim was missing. 

During a search of the grandmother's house, police found that 

the bedsheets were missing from the front bedroom. They also 

found traces of blood and seminal fluid in that room, and bloody 

pillows in the victim's bedroom.

 

4 Police recovered a knife and a small bag containing what 

was later determined to be cocaine.
7

b. Trial proceedings. On August 30, 2007, the defendant

was indicted on charges of murder in the first degree and twelve 

other offenses.

5 At trial in March, 2009, the Commonwealth 

proceeded on the murder charge on theories of deliberate 

premeditation, extreme atrocity or cruelty, and felony-murder. 

To establish that the defendant was criminally responsible for 

his actions, the Commonwealth presented testimony regarding his

behavior on the day of the killing. The defendant's girl friend 

testified that she spoke with him around noon that day, and 

agreed that he did not "sound any different" than usual. A 

friend who had been at the cookout recalled that the defendant 

drank beer, played horseshoes, and agreed that he did not 

"appear[] different . . . than what [his friends] had known him 

to be like in the past."

The Commonwealth also presented expert testimony regarding 

fingerprints, blood, and seminal fluid that were recovered from 

the grandmother's house and the victim's body. One expert 

testified that samples of deoxyribonucleic acid (DNA) recovered 

from sperm cells on the victim's body matched the defendant's

 

5 The other indictments included two counts of forcible rape 

of a child, and one count each of home invasion; kidnapping;

assault with a dangerous weapon, G. L. c. 265, § 15B (b);

possession of cocaine, G. L. c. 94C, § 34; larceny over $250;

larceny of a motor vehicle; malicious destruction of property;

reckless driving; operating a motor vehicle with a suspended 

license, G. L. c. 90, § 23; and failure to stop for a police 

officer.
8

DNA profile, and another testified that a palm print on the 

front window matched that of the defendant.

The defendant conceded that he had raped and killed the 

victim, but contended that he was not guilty by reason of 

insanity. The defendant did not, however, offer expert 

testimony regarding specific mental illnesses from which he 

suffered, and did not present any medical or treatment records. 

Nor did he offer an expert opinion that he lacked criminal 

responsibility for his actions. Rather, he relied on testimony 

concerning his behavior immediately following the killing, as 

well the nature of the crime itself, to establish his mental 

state.

6 He also presented testimony from his grandmother, on 

cross-examination, that he had been admitted to psychiatric 

hospitals numerous times during his adolescence, that he had 

been prescribed medications for psychiatric disorders, and that, 

because of behavioral issues, he had been placed in the custody 

of the Department of Youth Services (DYS).7

In addition, the defendant introduced expert testimony from 

a forensic psychologist who had not examined him, concerning the 

 

6 The defendant's acquaintance Terrence Gandy, for instance, 

testified that the defendant "didn't seem like he was himself," 

that "he was a little more hyper" than usual, and that "he just 

didn't seem like he was in his right mind." The arresting 

officer testified that the defendant was "ranting and raving."

7 On direct examination by the Commonwealth, the grandmother 

agreed that she never "bec[a]me aware of [the defendant] having 

any type of a mental illness."
9

general standards used to evaluate a defendant for lack of 

criminal responsibility, and the general characteristics of a 

number of mental illnesses. The expert agreed that someone may 

"be in the throes of mental illness and appear normal to lay 

observers," and testified that a person "would be admitted to 

[a] psychiatric facility only [if] someone . . . as part of the 

admission . . . believed that they had symptoms of a mental 

illness." The expert did not present any opinion regarding the 

defendant's mental state or behavior.

The jury convicted the defendant of murder in the first 

degree on theories of extreme atrocity or cruelty and felonymurder,

8 but not on the theory of deliberate premeditation.9

c. Motion for a new trial. In October, 2012, the 

defendant filed a motion for a new trial pursuant to Mass. R. 

Crim. P. 30, as appearing in 435 Mass. 1501 (2001). He argued, 

among other things, that his trial counsel was ineffective for 

failing to review and present to the jury records of psychiatric 

 

8 The predicate felonies for the conviction of felony-murder

were rape of a child by force and home invasion.

9 The jury also convicted the defendant of eight of the 

other offenses charged, including two counts of rape, home 

invasion, kidnapping, larceny of a motor vehicle, malicious 

destruction of property, reckless driving, failing to stop for a 

police officer. In addition, he was convicted of the lesser 

included offense of larceny under $250. The jury acquitted him 

of possession of cocaine and operating a motor vehicle with a 

suspended license. The judge entered a directed verdict on the 

indictment charging assault by means of a dangerous weapon.
10

treatment he had received as an adolescent. Those records, he 

maintained, indicated that the defendant had suffered sexual 

abuse as a child, and that he had been diagnosed with several 

mental illnesses. He argued also that trial counsel had failed 

to present evidence of certain strange behavior he exhibited on 

the day of the killing. After a nonevidentiary hearing, the 

motion was denied by the Superior Court judge who had been the 

trial judge.

4. Discussion. On appeal, the defendant contends that

(a) trial counsel was ineffective in her presentation of the 

insanity defense, (b) the judge did not respond adequately to 

reports of a sleeping juror, (c) there was insufficient evidence 

on the home invasion charge and the jury were incorrectly 

instructed on that issue, (d) the judge's instruction removed an 

element of the felony-murder charge from the jury's 

consideration, and (e) the prosecutor made certain inappropriate 

remarks during closing argument. He claims also that we should 

reduce the degree of guilt pursuant to our authority under G. L. 

c. 278, § 33E.

a. Claim of ineffective assistance of counsel. As he did 

in his motion for a new trial, the defendant argues that 

counsel's investigation and presentation of his insanity defense 

was constitutionally deficient. He claimed, in particular, that 

"counsel failed to adequately investigate [his] history of 
11

treatment for mental illnesses"; "failed to present evidence of 

his unusual behavior shortly before the . . . crime"; and 

"failed to object to erroneous instructions on the mental health 

defense[]."

"Because the defendant has been convicted of murder in the 

first degree, we consider [his] contention of ineffectiveness of 

counsel to determine whether there exists a substantial 

likelihood of a miscarriage of justice . . . , which is more 

favorable to a defendant than the constitutional standard for 

determining whether there has been ineffective assistance. 

Thus, we consider whether there was error during the course of 

the trial, and, if so, whether the error was 'likely to have 

influenced the jury's conclusion'" (citation omitted).

Commonwealth v. Williams, 453 Mass. 203, 204-205 (2009). "Under 

this more favorable standard of review, we 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."' . . . A strategic decision by an 

attorney, however, amounts to ineffective assistance 'only if it 

was manifestly unreasonable when made'" (citations omitted). 

Commonwealth v. Pena, 455 Mass. 1, 22 (2009).

i. Treatment records. The defendant maintains that 

defense counsel erred in failing to read, or to introduce at 

trial, treatment records from his psychiatric hospitalizations
12

and from his commitments to DYS facilities. These records 

indicate that the defendant suffered sexual abuse as a child, 

and that, during his adolescence, he was diagnosed with several 

mental illnesses, including agitated depression, bipolar 

disorder, and posttraumatic stress disorder. The records span a 

period of twelve years, from 1992, when the defendant was five 

years old, to 2004, shortly before his eighteenth birthday. The 

defendant contends that, had evidence of these specific 

diagnoses been presented to the jury, the insanity defense might 

have been successful.

In an affidavit submitted in conjunction with the

defendant's motion, trial counsel explained that she was aware 

of the treatment records, and had seen them mentioned in the 

defendant's competency evaluation prepared by a forensic 

psychologist at Bridgewater State Hospital. She stated further 

that, although she herself did not review the records, she had 

obtained funds to hire an expert psychologist to review the 

documents. Having reviewed the records, and having asked a 

colleague to do the same, the expert informed counsel that he 

was unable to offer an opinion that, at the time of the offense, 

the defendant had not been criminally responsible. Counsel

averred that she therefore decided not to present expert 

testimony on the basis of the defendant's medical records. She

did not, however, explain why she chose not to introduce the 
13

treatment records themselves, unaccompanied by expert testimony. 

See Commonwealth v. Dung Van Tran, 463 Mass. 8, 20 (2012)

("defendant with prior history of mental disorders and treatment 

'may offer evidence of the same through medical records with or 

without expert witnesses'" [citation omitted]).

While unexplained in the affidavit, counsel's decision not 

to introduce the records appears to have been strategic. See 

Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015) (where 

ineffective assistance claim is based on tactical or strategic 

decision by counsel, defendant may show counsel was ineffective 

only if decision was "manifestly unreasonable" when made). At a 

pretrial hearing, counsel argued successfully, against the

Commonwealth's opposition, that the Commonwealth was not 

entitled to review the defendant's mental health records, 

because she was neither presenting them at trial nor seeking to 

introduce expert testimony based on their content. Moreover, 

during voir dire of the venire, she asked each prospective 

juror, "If there is no evidence presented regarding 

hospitalization or a diagnosis, would you still be able to keep 

an open mind about an insanity defense?" It therefore seems

that, after due consideration, counsel deliberately decided not 

to present documentary evidence of the defendant's mental 

illnesses. "[S]trategic choices made after thorough 

investigation of [the] law and facts . . . are virtually 
14

unchallengeable." Commonwealth v. McMahon, 443 Mass. 409, 425 

(2005), quoting Strickland v. Washington, 466 U.S. 668, 690 

(1984).

The defendant contends, however, that without having read 

the records herself, counsel could not have conducted a 

"thorough investigation," Commonwealth v. McMahon, supra, and 

was not in a position to make the strategic decision to keep the 

records from the jury's consideration. See Commonwealth v. 

Baker, 440 Mass. 519, 529 (2003) ("Until [counsel] 

commenced . . . an investigation, he simply had no way of making 

a reasonable tactical judgment").

We do not agree. Although it would have been preferable 

for counsel personally to review the treatment records, she did 

not fail to consider them, or to make an investigation of their 

contents. Indeed, she reviewed the competency report prepared 

by the forensic psychologist at Bridgewater, which summarized 

most of the relevant records, and which described the

defendant's treatment history and diagnoses. Contrast

Commonwealth v. Lang, 473 Mass. 1, 11 (2015) (Hines, J., 

concurring) ("defendant's trial counsel did not review the 

defendant's psychiatric history"). Counsel also retained two 

experts, both of whom reviewed the records and opined that they

did not support the conclusion that the defendant lacked 

criminal responsibility at the time of the crime. Contrast 
15

Commonwealth v. Alvarez, 433 Mass. 93, 101 (2000) ("Counsel's 

failure to review or provide to the defense expert [relevant] 

medical records . . . fell measurably below that of an ordinary 

fallible lawyer" [emphasis supplied]). In light of counsel's

knowledge of the substance of the records, and given that the 

experts she retained could not endorse an insanity defense after 

reading them, counsel's investigation was sufficient to allow 

her to make the strategic decision not to present the records to 

the jury. This decision was not "manifestly unreasonable."

Moreover, it is unlikely that the exclusion of the records

resulted in any prejudice to the defendant. See Commonwealth v. 

Williams, 453 Mass. at 204-205. As the judge noted in her

decision on the defendant's motion for a new trial, although the 

records contained sympathetic information, such as the 

defendant's history of abuse and mental illness, and while they 

would have prevented the prosecutor from arguing that the 

defendant's hospitalizations were not the result of a 

diagnosable disease, they also contained information that would 

have painted the defendant in a negative light. For example, 

the records indicated that the defendant had a criminal record10

and was a member of a gang, and stated also that he "attempt[ed]

 

10 They indicate, for instance, that the defendant was 

adjudicated delinquent for, among other things, committing 

assault by means of a dangerous weapon and malicious destruction 

of property over $250.
16

to manipulate situations by avoiding responsibility for his 

behavior" and "display[ed] little remorse for his [violent] 

actions."11

In addition, the records contained information that might 

have undercut the insanity defense. The most recent of the 

records, from three years before the crime, indicated that the 

defendant was "doing well," that he was employed and had a girl

friend, and that he "recently discontinued his medication

[(impliedly with medical approval)]."12 Had these records been 

presented to the jury, the prosecutor likely would have used

them to support the argument that the defendant was capable of

rational, calculated thought, and that the killing was the 

result of such thought, rather than of mental illness.

In sum, counsel's decision not to introduce the defendant's 

treatment records was not manifestly unreasonable, and did not 

result in prejudice to the defendant.

 

11 Counsel was aware from the competency evaluation that the 

records described the defendant's history of delinquent and 

criminal behavior, and contained other potentially damaging 

information.

12 The defendant contends that some of these details, if not 

relevant to his diagnosis and treatment, could have been 

redacted. See Commonwealth v. Irene, 462 Mass. 600, 616, cert. 

denied, 133 S. Ct. 487 (2012) (medical records admissible as 

business records only to extent they are "germane to the 

defendant's treatment or medical history"). On their face, 

however, the records suggest that many of these details were, in 

fact, relevant to the defendant's psychiatric treatment --

focused, as it was, on his behavioral issues -- and thus 

unlikely to have been subject to redaction.
17

ii. Defendant's behavior earlier on day of killing. In 

August, 2007, a State trooper interviewed Cynthia Phinney, the 

mother of the defendant's friend who had hosted the cookout that 

the defendant attended on the day of the killing. Phinney 

reported seeing the defendant at the cookout, and told the 

trooper that he was "in a funny mood . . . he was sad." She 

added that

"at one point [the defendant] took a shower in the 

house. . . . [A]fter [he] took a shower, he remained in her 

laundry room for about ten minutes. . . . [S]he walked into 

the laundry room and found [him] just standing there 

naked."

The defendant contends that trial counsel was ineffective for 

not calling Phinney to testify about this incident, as it would 

have suggested that the defendant exhibited "behavior . . . 

consistent with that of a person suffering from bipolar 

disorder."13

The record does not indicate whether counsel considered 

calling Phinney. We are persuaded, however, that, overall, 

Phinney's testimony was not "likely to have influenced the 

jury's conclusion" [citation omitted]. See Commonwealth v. 

Williams, 453 Mass. at 206. Before describing the defendant's 

mood and behavior, Phinney told the trooper that the defendant 

"showed up with a thirty-pack of beer," that he became

 

13 The defendant's expert described to the jury the expected 

symptoms of bipolar disorder.
18

"trashed . . . and [that he] needed to sober up." Thus, it is 

likely that the jury would have attributed his mood to 

consumption of alcohol, rather than as a symptom of mental 

illness. In addition, Phinney testified before the grand jury 

that, earlier that afternoon, the defendant "was fine. He's 

always happy-go-lucky, always singing, dancing, and always just 

a happy kid." Had Phinney testified, such statements could have 

undermined any testimony that the defendant was "sad" or in a 

"funny mood." Given the potentially harmful impact of Phinney's 

statements on the defendant's insanity defense, no prejudice to 

him resulted from counsel's decision not to call her to testify.

iii. Jury instructions. The defendant argues that counsel 

was ineffective for failing to object to two specific jury 

instructions.

A. Instruction on insanity. In instructing the jury on

the insanity defense, the judge stated:

"To summarize then, if the Commonwealth fails to prove 

beyond a reasonable doubt that the defendant possessed the 

substantial capacity to appreciate the criminality or 

wrongfulness of his conduct, and also that the defendant 

possessed a substantial capacity to conform his conduct to 

the requirements of the law, you must return a verdict of 

not guilty by reason of insanity" (emphasis supplied).

The defendant contends that this instruction was erroneous, 

because it implies, in his view, that a verdict of not guilty by 

reason of insanity was required only if the Commonwealth failed 

to prove both that the defendant "possessed the substantial 
19

capacity to appreciate the wrongfulness of his conduct," and 

that he "possessed a substantial capacity to conform his conduct 

to the requirements of the law." If, however, the Commonwealth 

were able to prove only one of these two prongs, the defendant 

argues, this instruction implied incorrectly that the jury 

should return a guilty verdict. As the defendant asserts, the 

Commonwealth must prove both a defendant's ability to understand 

the wrongfulness of his conduct and his capacity to conform his 

conduct to the law; failure to prove either prong requires a 

verdict of not guilty by reason of insanity. See Model Jury 

Instructions on Homicide 51-52 (1999).

Trial counsel did not object to the instruction as given. 

The defendant claims that counsel's failure to object 

constituted ineffective assistance. This claim is unavailing. 

While the language at issue might, in isolation, be understood 

in the manner the defendant suggests, a more natural 

interpretation is that a verdict of not guilty by reason of 

insanity was required if the Commonwealth failed to prove either 

one of the prongs, by failing to show both that "the defendant 

possessed the substantial capacity to appreciate the criminality 

or wrongfulness of his conduct, and that the defendant possessed 

a substantial capacity to conform his conduct to the 

requirements of the law." We are persuaded that the jury

understood the instruction in this way, since, as the defendant 
20

concedes, the judge explained the standard correctly, clearly, 

and without ambiguity earlier in her instructions.14 See 

Commonwealth v. Young, 461 Mass. 198, 207 (2012) ("When 

reviewing jury instructions, '[w]e evaluate the instruction as a 

whole, looking for the interpretation a reasonable juror would 

place on the judge's words.' . . . We do not consider bits and 

pieces of the instruction in isolation" [citations omitted]).

B. Instruction on diminished capacity. The judge 

instructed the jury that they could convict the defendant of 

murder in the first degree on a theory of extreme atrocity or 

cruelty if they found that the defendant had so-called "thirdprong malice," i.e., "intent to do an act which, in the 

circumstances known to the defendant, a reasonable person would 

have known created a plain and strong likelihood that death 

would follow." The defendant argues that the judge erred in not 

instructing the jury that, in determining whether the defendant 

had such an intent, "they should consider the extent of the 

defendant's knowledge of the circumstances at the time of the 

killing and, in that regard, they should consider the evidence 

of his mental impairment." See Commonwealth v. Delaney, 418 

 

14 For example, the judge stated that a "person is not 

criminally responsible for his conduct if he suffers from a 

mental disease or defect, and as a result of that mental disease 

or defect lacks a substantial capacity either to appreciate the 

criminality of wrongfulness of his conduct or to conform his 

conduct to the requirements of the law" (emphasis supplied).
21

Mass. 658, 663-64 (1994). The defendant maintains also that 

counsel was ineffective for failing to object to the absence of 

this language. The instructions as a whole, however, do not 

support this claim. Shortly after giving the now-challenged 

instruction, the judge explicitly told the jury that they must

consider the defendant's mental state in determining the extent 

of the defendant's knowledge.

15

b. Report of sleeping juror. Before the jury charge, a

juror reported that another juror had been sleeping during 

closing arguments. The judge conducted a hearing on what should 

be done in response to the juror's assertion. Defense counsel 

stated, "I think we [should] leave it alone. I didn't notice 

it, and I think we were both looking at the jurors during our 

closing argument." She added, "I'm more concerned about [the

reporting] juror than I am the juror who may have been falling 

asleep. It sounds like that juror has an agenda of some type." 

The prosecutor also said that he had not noticed the juror had 

 

15 The judge instructed:

"In determining whether the Commonwealth has proved 

this third meaning of malice, you must consider the 

defendant's actual knowledge of the circumstances at the 

time that he acted.

"Again, in determining whether the Commonwealth has 

proved that the defendant had the intent required to 

constitute malice in any one of these ways, you may 

consider any evidence regarding the defendant's mental 

condition at the time of the alleged events."
22

been sleeping, and suggested that no action was required in 

response to the report.

The following day, a juror who had been designated as an 

alternate16 sent the judge a note stating that he had observed

the same juror "f[a]ll asleep during trial on several occasion's

[sic]." Defense counsel responded,

"I just wanted to say that I watched this particular 

juror yesterday during Your Honor's very lengthy . . . 

charge . . . because it was brought to our attention that 

this particular juror had been falling asleep. . . . What 

I noted is that she occasionally closed her eyes, but would 

move her hands and turn her head and open her eyes. I was 

confident yesterday in observing her during Your Honor's 

charge that she was not sleeping."

As requested, the judge took no further action. The defendant 

now argues that the judge erred in taking no action, and should, 

at a minimum, have conducted a voir dire of the juror in 

question. See Commonwealth v. Dyous, 79 Mass. App. Ct. 508, 

512-514 (2011) (judgment reversed because of sleeping juror 

although defendant's trial attorney urged judge to take no 

action).

The defendant's argument is not persuasive. "[N]ot every 

complaint regarding juror attentiveness requires a voir 

dire. . . . Rather, if a judge receives a complaint or other 

information suggesting that a juror was asleep or otherwise 

 

16 It is not clear if the juror making this report was the 

same one who had reported suspicions of a sleeping juror the 

previous day.
23

inattentive, the judge must first determine whether that 

information is 'reliable.' . . . In making this determination, 

the judge must consider the nature and source of the information 

presented, as well as any relevant facts that the judge has 

observed from the bench. . . . The burden is on the defendant 

to show that the judge's response to information about a 

sleeping juror was 'arbitrary or unreasonable'" (quotations and 

citations omitted). Commonwealth v. McGhee, 470 Mass. 638, 644

(2015).

Here, the defendant has not met this burden. On both 

occasions, the judge immediately conducted a hearing on the 

juror's report. At those hearings, both defense counsel and the 

prosecutor stated that they had not noticed that the juror was 

asleep, and defense counsel provided specific information to 

explain both the basis of the report (the juror had closed her 

eyes) and why there was ultimately no cause for concern (the 

juror was actually awake). In light of this, there was no error 

in the judge's decision that the report of a sleeping juror was 

not "reliable," id., and that no further action was required.

c. Armed home invasion. In instructing the jury on the 

elements of home invasion, the judge stated that the 

Commonwealth must prove "that the defendant at the time of the 

entry was armed with a dangerous weapon[.]" See G. L. c. 265, 

§ 18C. She then instructed that, as a matter of law, "[k]nives 
24

are inherently dangerous." The defendant contends that this was 

error, and that the jury should have been instructed to 

determine whether the knife he had in his possession was 

dangerous as used. He contends also that, even if a correct 

instruction were given, there was insufficient evidence that the 

knife was dangerous as used, and that a directed verdict on this 

charge should have entered. We agree.

Conviction under the home invasion statute requires the 

Commonwealth to prove the defendant entered the dwelling "while 

armed with a dangerous weapon" and "use[d] force or threaten[ed] 

the imminent use of force upon any person within such 

dwelling[.]" See G. L. c. 265, § 18C. The "phrase 'dangerous 

weapon' has a defined meaning under the common law that is 

routinely applied to those statutory crimes that have a 

dangerous weapon element." Commonwealth v. Wynton W., 459 Mass. 

745, 749 (2011). See Commonwealth v. Mattei, 455 Mass. 840, 846

n.12 (2010) (applying common-law definition of dangerous weapon 

to home invasion statute). Under this common-law definition, a 

determination whether a weapon is "dangerous" is based on a 

distinction between weapons that are dangerous per se and those 

that are dangerous as used. See Commonwealth v. Appleby, 380 

Mass. 296, 303 (1980). A weapon is "dangerous per se" if it is 

an "instrumentality designed and constructed to produce death or 

great bodily harm" and "for the purpose of bodily assault or 
25

defense." Weapons of this type include "firearms, daggers, 

stilettos and brass knuckles" but not "pocket knives, razors, 

hammers, wrenches and cutting tools" [quotations and citations 

omitted]. Id.

On the record here, the evidence was insufficient for a 

determination that the defendant's knife was dangerous per se. 

The knife that the defendant had in his possession when he was 

arrested was a three and one-half inch "folding" knife that was 

on his person, but was not in his hand, when he was apprehended. 

See id. ("pocket knives" are not dangerous per se). Such a

determination cannot be made absent "information regarding the 

design, purpose, and construction of the knife." See 

Commonwealth v. Wynton W., 459 Mass. at 755. The judge noted in 

her decision on the defendant's motion for a new trial that the 

requisite determination could not be made on this record. Thus, 

the jury should have been instructed not that the knife was 

inherently dangerous, but that they must determine whether it 

was dangerous as used.

17 See Commonwealth v. Delaney, 442 Mass. 

604, 615 (2004) (because "[a] pocket knife of the type the 

defendant described is not a dangerous weapon per se, as it is 

not 'designed for the purpose of bodily assault or defense'" 

 

17 The judge, however, declined to disturb the home invasion 

conviction, concluding that there was sufficient evidence that 

the knife was dangerous as used, such that a correct instruction 

would not have led to a different result.
26

[citation omitted], judge should have instructed jury to 

determine whether knife was dangerous as used and not that it 

was dangerous per se); Commonwealth v. Appleby, 380 Mass. at 303 

(pocket knives not classified as dangerous per se).

Such an instruction, however, would not have obviated the 

need to vacate the defendant's conviction of this charge, as the 

evidence was also insufficient to support a finding that the 

defendant's knife, which he had in his possession when he 

entered his grandmother's house, was dangerous as used. The 

evidence suggests only that the defendant used the knife to gain 

entry to the house; there is no indication that he used it

thereafter. There was no evidence or argument that the victim 

was stabbed, or that any item inside the house was cut or 

slashed. In addition, while displaying the knife in a 

threatening manner might have rendered it dangerous as used, the 

Commonwealth adduced no evidence that such a display occurred.18 

See Commonwealth v. Mattei, 455 Mass at 846 n.12 (whether weapon 

is dangerous as used in home invasion depends on its "apparent 

ability to inflict harm" and "whether the victim reasonably so 

perceived it" [citation omitted]). Accordingly, the defendant's 

conviction of armed home invasion must be vacated and set aside, 

 

18 The argument that the defendant may have used the knife 

to threaten the victim is speculative and not supported by any 

evidence introduced at trial.
27

and, on remand, a directed verdict in favor of the defendant 

must be entered.

19

d. Instruction on felony-murder. The defendant claims 

also that the judge's instruction on felony-murder impermissibly 

removed from the jury's consideration the critical factual issue 

whether the intent to commit the predicate felony exhibited a 

"conscious disregard" for human life. "[T]he felony-murder rule 

is based on the theory that the intent to commit the felony is 

equivalent to the malice aforethought required for murder." See 

Commonwealth v. Matchett, 386 Mass. 492, 507 (1982). 

Accordingly, "[f]or this theory to be tenable the nature of the 

felony must be such that an intent to commit that crime exhibits 

a conscious disregard for human life" [citation omitted] Id.

In instructing the jury on felony-murder, the judge said 

that the Commonwealth must prove that the defendant killed the 

victim in the course of committing a felony "inherently 

dangerous to human life." She then instructed that, "as a 

matter of law, the crime of home invasion with a dangerous

weapon and rape of a child by force are felonies which are 

inherently dangerous to human life."

 

19 While armed home invasion was one of the predicate 

felonies on which the conviction of felony-murder was based, we 

need not reverse the felony-murder conviction, as the jury also 

found that the defendant committed a second predicate felony, 

viz., rape of a child by force. See note 23, infra.
28

Contrary to the defendant's argument, this instruction was 

in accordance with well-established case law. See Commonwealth

v. Wadlington, 467 Mass. 192, 208 (2014) (judge did not relieve

prosecution from its burden of proving "conscious disregard" 

element of offense of felony-murder" because "[i]t is not the 

province of the jury to determine whether a felony is inherently 

dangerous" [citation omitted]); Commonwealth v. Scott, 428 Mass. 

362, 364 (1998) (whether felony is inherently dangerous is "a 

matter of law" to be decided by judge; where felony is 

inherently dangerous, "[t]here is no need to show a 'conscious 

disregard for human life because the risk is implicit in the 

intent required for the felony'" [citation omitted]). See also

Commonwealth v. Matchett, 386 Mass. at 505 n.15 ("common law 

felonies of arson, rape, burglary, and robbery" are "inherently 

dangerous"). We decline the defendant's invitation to revisit 

this issue.

e. Closing argument. i. Whether inferences were 

permissible. In his closing, the prosecutor argued that the 

defendant was not mentally ill, and that his actions reflected 

calculated thinking by a "criminal mind." The prosecutor noted,

in particular, that the defendant had broken into his 

grandmother's house with the intention of stealing her money and 

her vehicle, and that he had been spotted by the victim. The 

defendant then killed the victim to prevent her from revealing 
29

his presence, removed her body and clothing to conceal what had 

happened, and went immediately to the convenience store to 

establish an alibi. Once he had been caught by the canine 

officer, the prosecutor asserted, the defendant contemplated 

killing the police dog with his knife and, when that effort was 

unsuccessful, feigned insanity. The prosecutor maintained also

that the defendant's hospitalizations were the result, not of 

mental illness, but of "acting out" or "a substance abuse 

problem." The prosecutor suggested that the defendant had 

concocted the insanity defense because he knew that the evidence 

against him was strong, and that he had no other viable defense.

The defendant objected to these factual assertions as lacking 

support in the evidence. His objections were overruled. The 

defendant raises the same arguments on appeal.

"A prosecutor must limit comment in closing statement to 

the evidence and fair inferences that can be drawn from the 

evidence. . . . Nonetheless, a prosecutor may argue zealously 

in support of inferences favorable to the Commonwealth's case 

that reasonably may be drawn from the evidence" [quotation and

citations omitted]. Commonwealth v. Carriere, 470 Mass. 1, 22 

(2014). In determining whether impermissible statements in a 

prosecutor's closing argument require reversal, "we consider (1) 

whether the defendant seasonably objected; (2) whether the error 

was limited to collateral issues or went to the heart of the 
30

case; (3) what specific or general instructions the judge gave 

the jury which may have mitigated the mistake; and (4) whether 

the error, in the circumstances, possibly made a difference in 

the jury's conclusions." Commonwealth v. Kater, 432 Mass. 404, 

422-23 (2000), quoting Commonwealth v. Kozec, 399 Mass. 514, 518 

(1987).

Here, the challenged arguments were based largely on such 

reasonable inferences. The assertion that the defendant broke 

into his grandmother's home intending to steal her money and her 

vehicle is supported by evidence that the defendant entered the 

house by climbing on his grandmother's Explorer, and then 

cutting through a window screen on a second-floor window, at 

night and while the occupants were sleeping, and that he 

actually stole these items, which were found in his possession 

after the motor vehicle chase. See Commonwealth v. Maia, 429 

Mass. 585, 587-588 (1999) ("intent to steal may be inferred 

where a person enters a building by force at night").

The argument that the defendant was discovered by the 

victim, somewhere in the house, is supported, in part, by 

reasonable inferences that could be drawn from the evidence. 

Although she slept in a room adjacent to the victim's and

separated from it only by a sliding glass door, the grandmother 

was not aware, until hours later, that the defendant had been in 

the house, or that the victim was missing. Both the victim's 
31

bedroom and the room where the grandmother was sleeping were at 

the back of the house, while the defendant broke in through a 

front window, and committed the rape in a front bedroom. Based 

on this, the jury reasonably might have inferred that the 

defendant encountered the victim not in her bedroom, but 

elsewhere in the house.20

In any event, "the line separating speculation and 

inference is often a fine one," and we "recognize that closing 

argument is identified as argument," and that the jury 

understand from the judge's instructions that closing arguments 

are not evidence. See Commonwealth v. Bresilla, 470 Mass. 422, 

437-438 (2015), quoting Commonwealth v. Kozec, 399 Mass. at 516. 

Moreover, any impermissible inference in the prosecutor's 

suggestion as to the defendant's motive for the killing could 

not have resulted in prejudice to the defendant. The 

defendant's motive was a collateral issue that the Commonwealth 

was not required to prove. See Commonwealth v. Kozec, supra

at 518 (distinguishing "collateral" errors in prosecutor's 

closing argument that did not go to "the heart of the case").

The jury also reasonably could have inferred that the 

defendant's actions after the killing were a conscious attempt 

to cover his tracks, demonstrating rational thought rather than 

 

20 There was also evidence, however, that bloody pillows 

were found in the victim's bedroom. There was no evidence whose 

blood it was.
32

insanity. That the defendant removed the victim's body and 

clothing from the house could be viewed as an attempt to delay 

discovery of the crime. Similarly, the defendant's visit to the 

convenience store, where he walked around but did not buy 

anything -- despite having just stolen cash from his 

grandmother -- might suggest that he went to the store for some 

purpose other than to shop, and that this purpose was to 

establish an alibi. Such an inference could have been bolstered 

by the defendant's question to Gandy, a few hours later, about 

how he might dispose of a body. The high-speed police chase and 

the defendant's flight on foot further support the inference, 

suggested by the prosecutor, that the defendant was trying at 

all costs to avoid capture and punishment. In addition, the 

jury could have inferred that, when the defendant reached for 

his knife after the officer turned his back, the defendant

intended to attack the police dog. The evidence also supported 

an inference that, when the defendant realized escape was not 

possible, he began "ranting and raving" to establish an insanity 

defense. See Commonwealth v. McColl, 375 Mass. 316, 323 (1978) 

(prosecutor allowed to argue "that the defendant was dissembling 

in his claim of insanity").

Finally, based on the grandmother's testimony, the jury 

reasonably could have adopted the prosecutor's suggestion that 

the defendant's psychiatric hospitalizations were related to 
33

substance abuse rather than another mental illness. Several

witnesses testified that the defendant used marijuana or had 

possessed cocaine. Thus, the prosecutor's argument "seems to 

have been based properly on reasonable inferences that could 

have been drawn from the evidence." Commonwealth v. Carriere, 

470 Mass. at 22.

ii. Appeals to juror sympathy. In his closing, the 

prosecutor asked the jury to recall that "one of the greatest 

fears of little kids are monsters that come out in the night." 

He said that, on the "night of August 4th, 2007, a monster came 

in the night. A monster came into the life of [the victim], and 

the monster looked like [the defendant]." The prosecutor 

repeated this comment, almost verbatim, five times. At the end 

of his closing, the prosecutor was crying. The defendant 

objected to the display of emotion, and to the refrain regarding 

monsters, as impermissible "appeal[s] to the sympathy of the 

jurors." The judge overruled the objection.

Prosecutorial "appeals to sympathy . . . obscure the 

clarity with which the jury would look at the evidence and 

encourage the jury to find guilt even if the evidence does not 

reach the level of proof beyond a reasonable doubt." 

Commonwealth v. Santiago, 425 Mass. 491, 501 (1997), S.C., 427 

Mass 298 and 428 Mass. 39 (1998). Here, the prosecutor's 

display of emotion, and his characterization of the defendant as 
34

a monster, were "unprofessional," "wholly inappropriate[,] and 

should not have occurred." Commonwealth v. Rosario, 430 Mass. 

505, 515 (1999) (prosecutor "called the defendant a 'monster'"). 

Coming from a prosecutor who twice previously has been rebuked 

by this court -- and reversed -- for similar types of 

inappropriate argument, the remarks are particularly troubling. 

See Commonwealth v. Lewis, 465 Mass. 119, 128, 133 (2013) (where 

same prosecutor "unjustifiably demeaned the defense, the 

defendant, and defense counsel in his closing argument," court 

concluded that "prosecutor's argument was highly improper"); 

Commonwealth v. Williams, 450 Mass. 894, 902-907 (2008) (same 

prosecutor improperly vouched for witness and "improperly urged 

the jury to do something beyond impartial fact finding"). See 

also Matter of Nelson, 25 Mass. Att'y Discipline Rep. 413, 413-

414 (2009) (public reprimand of prosecutor for argument in 

Commonwealth v. Williams, supra).21

That being said, whether the argument requires reversal 

depends not only on whether it was improper, which it plainly 

was, but "whether the improper statements made by the prosecutor 

 

21 We observed in Commonwealth v. Williams, 450 Mass. 894, 

906 n.10 (2008), and reiterate here, that the prosecutor was "an 

experienced member of the district attorney's staff. To say 

that he knew or certainly should have known better than to offer 

the wholly improper argument is a gross understatement." Here, 

the "judge should have interrupted the prosecutor when he began" 

making such inappropriate remarks, and should have provided a 

"curative instruction." See id.
35

'constituted prejudicial error.'" See Commonwealth v. Santiago, 

425 Mass. at 500, quoting Commonwealth v. Daggett, 416 Mass. 

347, 352 n.5 (1993). As the defendant notes, a timely objection 

was lodged, and the argument "went to the heart of the case." 

See Commonwealth v. Kater, 432 Mass. at 422. The assertion that 

the defendant was a "monster" was, in context, an attempt to

convince the jury that the defendant was not mentally ill but, 

rather, a calculating killer. Nevertheless, we are persuaded 

that reversal is not required in the circumstances here.

First, the judge instructed the jury, both before and after 

the closing arguments, that such arguments "are not evidence." 

She also gave the standard instruction that the jury should "not 

be swayed by prejudice, by bias, by sympathy or anger," and 

should not "be influenced by any personal likes or dislikes that 

[they] have come to feel toward any party." See id. (we examine 

"what specific or general instructions the judge gave the jury 

which may have mitigated the mistake"). See also Commonwealth

v. Camacho, 472 Mass. 587, 609 (2015) ("Although none of the 

errors was addressed specifically, the judge instructed the jury 

that closing arguments are not evidence and that the jury were 

not to be swayed by emotion, sentiment, sympathy, or 

prejudice").

Second, given the gruesome nature of the crime, it is 

unlikely that the prosecutor's argument had an inflammatory 
36

effect on the jury beyond that which naturally would result from

the evidence presented. See Commonwealth v. Kater, 432 Mass. at 

423 ("a certain level of emotion on the part of the jurors could 

be expected from this type of trial"). In addition, it is clear 

that the jury did not blindly accept the prosecutor's arguments, 

as they rejected the Commonwealth's theory that the defendant 

had committed the killing with deliberate premeditation, 

acquitted him of drug possession and driving without a valid 

license, and convicted him of a lesser included offense on the 

larceny charge. These "verdicts show that the jury were able to 

distinguish wheat from chaff. We ordinarily assume that jurors 

are reasonably sophisticated and capable of sorting out 

hyperbole and speculation. . . . The verdicts bear out this 

assumption."

22 Commonwealth v. McLaughlin, 431 Mass. 506, 510-

512 (2000) (reversal not required although prosecutor "erred 

egregiously," where defendant claimed lack of criminal 

responsibility, by telling jury "to ignore the question of 

[defendant's] mental condition").

f. Review under G. L. c. 278, § 33E. We address two 

additional issues in conjunction with our review under G. L. 

c. 278, § 33E.

 

22 The jury also sent a note to the judge asking whether 

"each charge [is] to be considered independent of other charges 

regarding the defendant's sanity." This suggests that, the 

prosecutor's inflammatory remarks notwithstanding, the jury

properly considered the defendant's insanity defense.
37

i. Request for reduction of verdict to murder in the 

second degree. Analogizing the facts of this case to those in 

Commonwealth v. Colleran, 452 Mass. 417, 422, 430-434 (2008), 

the defendant asks us to reduce his conviction to murder in the 

second degree. In that case, we reduced the degree of guilt to 

murder in the second degree where, suffering from psychotic 

depression, the defendant strangled her child, because her 

"conduct, although culpable, was very much driven by her mental 

condition." Id. at 434. The evidence that the killing was 

"driven by [the defendant's] mental condition" in that case, 

however, was strong. See id. The defendant there presented 

unrebutted expert testimony that she "lacked substantial 

capacity to conform her conduct to the requirements of the law 

due to a serious mental illness." See id. at 422. Here, by 

contrast, there was no expert testimony that the defendant's 

actions were the product of a mental illness, and the 

Commonwealth's evidence that the defendant did not lack criminal 

responsibility was strong.

In this case, we discern no reason to exercise our power 

under G. L. c. 278, § 33E, to modify the jury's verdict.

ii. Lack of statistical context for DNA evidence. We note 

one other point not raised by the defendant. The Commonwealth 

presented testimony from a laboratory technician that DNA 

samples recovered from sperm on the victim's body "matched the 
38

DNA profile from [the defendant] and his paternal relatives." 

Such testimony should not have been admitted "without 

accompanying testimony explaining the statistical relevance of 

those . . . results." See Commonwealth v. Mattei, 455 Mass. at

846. This error did not give rise, however, to a substantial 

likelihood of a miscarriage of justice, as the factual 

proposition for which the evidence was admitted -- that the 

defendant raped the victim -- was undisputed. Moreover, the 

technician's testimony was cumulative of other evidence that the 

victim was raped by the defendant. See Commonwealth v. Linton, 

456 Mass. 534, 560 (2010) ("Considering the limited probative 

value of the DNA evidence when considered in the context of the 

evidence as a whole, we are satisfied that admission of 

the . . . evidence without qualifying statistical measures . . . 

did not result in a substantial likelihood of a miscarriage of 

justice").

3. Conclusion. The conviction of home invasion is vacated 

and set aside, and a required finding of not guilty shall be 

entered on that charge. The convictions of murder in the first 

degree, and of the remaining charges, are affirmed.23

So ordered.

 

23 Because the defendant was convicted of murder on theories 

of felony–murder and extreme atrocity or cruelty, the judgment 

on the indictment charging aggravated rape is not duplicative. 

See Commonwealth v. Bizanowicz, 459 Mass. 400, 421 (2011), 

citing Commonwealth v. Felder, 455 Mass. 359, 370–371 (2009).