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SJC-11805

COMMONWEALTH vs. WILLIAM MOSELEY.

Middlesex. March 8, 2019. - October 3, 2019.

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

Homicide. Evidence, Hearsay, State of mind. Practice, 

Criminal, Capital case, Hearsay, State of mind, Request for 

jury instructions, Assistance of counsel, Argument by 

counsel.

Indictment found and returned in the Superior Court 

Department on September 25, 2012.

The case was heard by Kathe M. Tuttman, J., and a motion 

for a new trial, filed on December 29, 2016, was heard by her.

Matthew A. Kamholtz for the defendant.

Casey E. Silvia, Assistant District Attorney (Elizabeth A. 

Dunigan, Assistant District Attorney, also present) for the 

Commonwealth.

LENK, J. In the early morning hours of August 10, 2012, 

the defendant strangled to death his former girlfriend, Cecilia 

Yakubu, in the bedroom of their shared apartment in Malden. At 

trial, the defendant acknowledged that he killed the victim when
2

he caused the tank top she was wearing to wrap around her neck. 

He contended, however, that the strangulation occurred 

unintentionally, during the course of a heated, physical 

struggle. The Commonwealth, by contrast, proceeded on the

theory that the defendant had tightly and deliberately wrapped

the tank top around the victim's neck, twice, in an effort to 

kill her following an argument. The only issue for the jury was 

the defendant's degree of culpability. The jury ultimately

convicted the defendant of murder in the first degree on the

theory of deliberate premeditation.

In this consolidated appeal from the conviction and from 

the denial of his motion for a new trial, the defendant contends 

that the judge erred in allowing the admission of several 

hearsay statements, and in declining to instruct the jury on the 

elements of involuntary manslaughter. Additionally, the 

defendant argues that his trial counsel rendered 

constitutionally ineffective assistance by failing to elicit 

testimony about the reasons why the defendant kept a knife under 

his pillow, and by delivering an unfocused closing argument that

did not marshal the evidence in favor of a conviction of

voluntary manslaughter.

For the reasons set forth infra, we affirm the defendant's 

conviction and the denial of his motion for a new trial. After 

a thorough review of the record, we discern no reason to employ
3

our extraordinary authority under G. L. c. 278, § 33E, to grant 

a new trial or to reduce the verdict.

1. Background. We recite the facts as the jury could have 

found them, reserving certain details for later discussion.

The victim and the defendant lived together in a twobedroom apartment in Malden. They had been involved in a

romantic relationship for approximately five years, but the 

relationship had begun to deteriorate. As a result, the 

defendant removed his belongings from the bedroom that he and 

the victim previously had shared and began sleeping in the 

second bedroom. The victim and the defendant continued this 

arrangement until, in August of 2012, they decided that the 

defendant should move out.

On the morning of August 9, 2012, the defendant packed a 

suitcase of his belongings and left the apartment.1 One of his

friends, Tuesday Reeves, collected the defendant from the train 

station; from there, they went grocery shopping. Afterward, the 

defendant and Reeves returned to Reeves's apartment and visited 

for a short time.

The defendant told Reeves that he could not return to the 

apartment that he had shared with the victim, and asked if he 

 

1 The victim had lunch with her friend, Dorothy O'Neal, 

later that day. The victim expressed her belief that the 

defendant had moved out of their apartment permanently.
4

could stay with Reeves instead.2 Reeves said no, and asked the 

defendant to leave her apartment because the man whom she was 

dating would be coming over later that evening. The defendant 

then left Reeves's apartment and went to sell perfume oils in 

Cambridge, which he did occasionally to earn extra income. 

Later in the evening, he telephoned Reeves and asked once more 

if he could stay at her apartment; she again refused. The 

defendant then took one of the last trains running from 

Cambridge to Malden that evening, and returned to the victim's 

apartment around 11:30 P.M.

When the defendant showed up at the apartment, the victim 

was using the landline telephone to speak with several of her 

friends. She expressed to them her frustration that the 

defendant had returned, unannounced, after leading her to 

believe that he had moved out.

The defendant also used the landline telephone over the 

course of the night, primarily to speak with Reeves. The 

defendant told Reeves that the victim was "going crazy" because 

of his return to the apartment. He mentioned that Reeves might 

 

2 In the preceding weeks, the defendant had told Reeves 

about his living situation and his strained relationship with 

the victim; he also asked Reeves if he could move into her 

apartment. Reeves had explained that it would not be permitted 

by the management of her public housing complex.
5

not see him for the next ten years, and that she should know 

that he loved her. He then hung up.

Reeves attempted to call back, but the victim answered. 

Reeves could hear the defendant in the background getting 

"louder and louder" as he argued with the victim; he seemed 

quite angry. The victim also was upset. She told Reeves that 

she was "sick of his shit" and that if the defendant "puts his 

hands on her" she would call the police. The victim also told

Reeves that the defendant had to go elsewhere, preferably to 

Reeves's house. Reeves responded that he could not stay with 

her, and suggested that, instead, the victim leave the 

apartment. The victim did not want to leave. She ended the 

call shortly thereafter.3

The defendant subsequently went into the victim's bedroom, 

where the argument between them quickly escalated. The victim 

hit the defendant in the face with a telephone, and the 

defendant ripped the cord and jack out of the wall. A struggle 

quickly ensued. During the course of that struggle, the 

defendant twice wound the victim's tank top around her neck. 

After "a few minutes," the victim's body went limp, and she

became unresponsive.

 

3 The defendant called Reeves back a few times thereafter. 

During one conversation, the defendant seemed calmer. At some 

point, Reeves stopped answering his calls.
6

The defendant then went into his bedroom and, using a 

different landline telephone, made several calls to his mother 

and sister, both of whom lived in another State; those calls

spanned the period of time from approximately 12:40 A.M. to 

5:10 A.M. At 5:15 A.M., approximately four to five hours after 

the victim had died, the defendant telephoned 911 and reported

that he had "just killed [his] wife. . . . She's dead." He 

told the 911 operator that he would be waiting outside the 

apartment for police to arrive.

When the first police officer responded, the defendant told 

him that he had "just killed [his] wife," and that he had 

"strangled her." Police entered the apartment to find the 

victim lying face down on the floor of the bedroom in a small 

pool of blood; a black tank top was wrapped tightly around her 

neck, and a telephone cord was draped across her shoulders. One

of the officers tried to find a pulse on the victim's neck, but 

the tank top was wrapped too tightly and the officer could not 

get his fingers underneath it. He instead checked for a pulse 

on the victim's wrist and found none.4

 

4 Because rigor mortis had begun to set in, the medical 

examiner believed that the victim had been dead at least one 

hour; by the defendant's own statement at trial, she had been 

dead approximately four to five hours.
7

An autopsy subsequently revealed that the victim had 

several abrasions on the side of her neck that were consistent 

with efforts to remove the tank top before she lost 

consciousness. The victim also had several bruises and 

scratches on her body that were consistent with having been 

struck.5

At trial, the only contested issue was whether the ligature 

strangulation had occurred deliberately or inadvertently. The 

Commonwealth argued that the defendant tightly wrapped the 

victim's tank top around her neck, twice, in order to kill her. 

The defendant testified that his hand inadvertently became 

caught up in the victim's tank top during a struggle; he then 

pulled it back in order "[t]o restrain her," but the victim 

became unresponsive and limp shortly thereafter.6

 

5 The defense expert agreed that the bruising was consistent 

with a fist striking the victim, but testified also that it 

could be consistent with a collapse injury due to, for example, 

a fall to the floor after losing consciousness.

6 The medical examiner demonstrated on a mannequin the 

manner in which the ligature had been wound around the victim's 

neck, and how the strangulation likely occurred. The mannequin 

was admitted in evidence, and the jury took it into the 

deliberation room.
8

After a six-day trial, the jury convicted the defendant of

murder in the first degree on a theory of deliberate 

premeditation.7

2. Discussion. In this consolidated appeal from his 

conviction and from the denial of his motion for a new trial, 

the defendant argues that the judge erred in allowing the 

admission of several hearsay statements by the victim to others 

on the night that she was killed. He maintains also that the 

judge erred in not instructing the jury on the elements of 

involuntary manslaughter. The defendant argues that his trial 

counsel was ineffective because counsel failed to elicit 

testimony from the defendant regarding the reasons why he kept a 

knife under his pillow, and delivered a "rambling" and 

unpersuasive closing argument that did not convince the jury to 

convict the defendant of voluntary manslaughter, rather than 

murder. Should we conclude that none of these asserted errors 

warrants a new trial, the defendant also requests that we grant 

relief pursuant to G. L. c. 278, § 33E, by reducing the verdict 

to murder in the second degree.

a. Victim's statements. The judge allowed the 

Commonwealth to introduce several statements made by the victim

to her friends and to Reeves on the day and night that she was

 

7 The jury did not convict the defendant on the theory of 

extreme atrocity or cruelty.
9

killed. Although the judge offered to provide a limiting 

instruction, the defendant expressly declined one.8

The defendant argues that these statements should not have 

been admitted because they constituted hearsay and were unduly 

prejudicial insofar as they might have demonstrated the victim's 

fear of the defendant. The Commonwealth maintains that the 

statements were not hearsay, as they were admitted not for their 

truth but for the purpose of demonstrating the victim's state of 

mind, which was made known to the defendant and shed light on

his motive on the night of the killing. "Generally, 

determinations as to the admissibility of evidence lie 'within 

the sound discretion of the trial judge.'" Commonwealth v. 

Bins, 465 Mass. 348, 364 (2013), quoting Commonwealth v. Jones, 

464 Mass. 16, 19-20 (2012).

 

8 Defense counsel objected to the introduction of each 

respective statement, but he did not request a limiting 

instruction. Counsel told the judge that his decision was 

tactical, as he believed that a limiting instruction would serve 

only to place a judicial imprimatur on the victim's statements 

and the inferences to be drawn therefrom. We discern no 

ineffective assistance resulting in a substantial likelihood of 

a miscarriage of justice from this decision, particularly in 

light of the overwhelming evidence of the defendant's guilt. 

See Commonwealth v. Franklin, 465 Mass. 895, 914 (2013) (failure 

to request instruction not ineffective assistance resulting in 

substantial likelihood of miscarriage of justice); Commonwealth

v. Griffith, 404 Mass. 256, 263 (1989) (counsel's tactic not 

ineffective "[c]onsidering the overwhelming evidence against the 

defendant").
10

The first of the challenged conversations was with Sharon 

Phillips. Phillips testified, in relevant part, that the victim

said, "He's back," when the defendant returned to the apartment 

that evening. The second was with Stanley Blidgen; he testified 

to his conversation with the victim earlier that day, in which 

the victim expressed her understanding that the defendant had 

left the house with a suitcase and had moved out. The third 

exchange took place with a long-time friend of the victim, 

Dorothy O'Neal. O'Neal testified that the victim told her that 

the defendant "was gone" and "that he took a little red bag."

O'Neal inquired if the victim had retrieved her key from the 

defendant, to which she responded, "No, he's gone." The fourth 

challenged conversation was with Tuesday Reeves that evening. 

She testified:

Q.: "What was the conversation?"

A.: "She was upset. [The defendant] was making a 

sandwich. . . . She said that he was in there taking 

food when he didn't put any food in her house, and 

that he needed to come to my house."

Q.: "Did you have a response to that?"

A.: "Yes, I told her that I have a guy and he cannot 

come here."

Q.: "What else did she say to you?"

A.: "She said to me that if he puts his hands on her 

that she would call the police."

Q.: "Did she say anything about how she felt about 

him?"
11

A.: "Yes, she said that she was sick of his shit."

. . .

Q.: "And we're not going to get into what you said, 

but you gave her some advice?"

A.: "Yes, I did."

. . .

A.: "I told her to leave. I told her to get out of 

the house, to leave."

Q.: "And she said no."

A.: "She said, no, it was her house."

Q.: "And when you're having this conversation with 

her, can you hear anybody in the background?"

A.: "Yes, I can. I could hear [the defendant]."

In certain circumstances, statements made by a victim to a 

third party may be admissible as evidence "of a murder victim's 

state of mind as proof of the defendant's motive to kill the 

victim." See Commonwealth v. Castano, 478 Mass. 75, 85 (2017), 

citing Commonwealth v. Qualls, 425 Mass. 163, 167 (1997), S.C., 

440 Mass. 576 (2003). See also Mass. G. Evid. §§ 801(c), 802 

(2019). A victim's statements, however, may be admissible only 

if "there also is evidence that the defendant was aware of that 

state of mind at the time of the crime and would be likely to 

respond to it." Castano, supra, quoting Qualls, supra. See 

Commonwealth v. Magraw, 426 Mass. 589, 593-594 (1998). "There 

need not be direct evidence that the defendant learned of the 
12

victim's state of mind, so long as the jury reasonably could 

have inferred that he or she did learn of it." Castano, supra.

Here, the statements made by the victim to others in the 

hours before her death were probative of her state of mind on 

the night that she was killed, that is, the victim's ongoing 

dissatisfaction with the relationship, her frustration with the 

defendant's presence in the apartment after believing that he 

had moved out, and the defendant's response to her annoyance 

when confronted. Compare Castano, 478 Mass. at 85-86 (desire to 

terminate relationship and have defendant move out of shared 

apartment sufficient for jury to infer motive); Commonwealth v. 

Tassinari, 466 Mass. 340, 347 (2013) (victim's statements to 

others regarding desire that defendant move out demonstrated 

ongoing hostility and discord within relationship); Commonwealth

v. Borodine, 371 Mass. 1, 7-9 (1976), cert. denied, 429 U.S. 

1049 (1977) (victim's statements to third parties about 

deterioration of relationship relevant in assessing defendant's 

motive to kill victim).9

 

9 Although the Commonwealth is not required to prove a 

defendant's motive for committing a particular crime, if there 

is evidence of motive, that evidence may be admissible. See 

Commonwealth v. Borodine, 371 Mass. 1, 8 (1976), cert. denied, 

429 U.S. 1049 (1977). Evidence of a victim's fear of a 

defendant, however, "is not admissible at all to prove motive."

See Commonwealth v. Magraw, 426 Mass. 589, 594 (1998). Here, 

the victim's statements did not indicate her fear of the 

defendant but, rather, her irritation, anger, and annoyance at 

his return, and her dissatisfaction with the state of their 
13

Moreover, the jury could have inferred that the defendant 

was aware of the victim's state of mind at the time of the 

crime, as expressed to her friends, to Reeves, and to the 

defendant, which may have shed light on the defendant's intent 

or motive to harm the victim. See Castano, 478 Mass. at 85-86. 

Indeed, Reeves testified that she heard the defendant in the 

background when the victim was expressing her irritation at the 

defendant's presence in the apartment and his lack of financial 

contribution to household expenses, her thoughts of calling the 

police if he "put[] his hands on" her, and her request that he 

leave. Further, by the defendant's own testimony at trial, the 

victim had in fact confronted him; their argument then led to a 

physical struggle, which ended with the defendant strangling the 

victim. Compare id. at 85 (adequate evidence for jury to infer 

that defendant knew of victim's state of mind where, in 

defendant's own description of killing, "he and the victim were 

arguing in the moments leading up to it").10

The relatively innocuous statements also cannot be said to 

have been unduly prejudicial to the defendant, as they reference 

 

relationship and living situation. Cf. Commonwealth v. Qualls, 

425 Mass. 163, 169 (1997) (evidence of victim's fear does not 

shed light on defendant's motive, even if defendant knew of that 

fear).

10 To the extent that the statements also may have included 

remarks made by a third party to the victim, those statements 

were not introduced for their truth. See Commonwealth v. Bins, 

465 Mass. 348, 365 (2013).
14

neither the victim's fear of the defendant nor any misconduct on 

the part of the defendant. Cf. Qualls, 425 Mass. at 169. Thus,

in light of the relevance of the victim's statements, the 

defendant's awareness of her state of mind, and the broad 

latitude afforded to a judge's decision to allow the admission 

of such evidence if it is not unduly prejudicial, see L.L. v. 

Commonwealth, 470 Mass. 169, 185 n.27 (2014), we discern no

error in allowing the statements to be introduced at trial. See 

Bins, 465 Mass. at 365-366 (no error in allowing admission of

victim's statements where it was within judge's sound discretion 

to do so).

b. Instruction on involuntary manslaughter. At the close 

of all the evidence, the defendant requested instructions on 

involuntary and voluntary manslaughter. The judge declined to 

instruct on involuntary manslaughter, but agreed to provide an 

instruction on voluntary manslaughter, in light of evidence that 

could have supported a theory of heat of passion induced by 

sudden combat. See Commonwealth v. Espada, 450 Mass. 687, 694 

(2008). The judge also instructed on murder in the second 

degree and murder in the first degree. The defendant maintains

in this appeal that the judge erred in declining to instruct the 

jury on involuntary manslaughter.

"Involuntary manslaughter is an unintentional killing 

resulting from 'wanton and reckless conduct . . . [or] . . . a 
15

battery not amounting to a felony which the defendant knew or 

should have known endangered human life." Commonwealth v. 

Tague, 434 Mass. 510, 517-518 (2001), cert. denied, 534 U.S. 

1146 (2002), quoting Commonwealth v. Pierce, 419 Mass. 28, 33 

(1994). "An instruction on involuntary manslaughter is required 

where any view of the evidence would permit a finding of 

manslaughter and not murder." Pierce, supra. "When it is 

obvious, however, that the risk of physical harm to the victim 

created a plain and strong likelihood that death will follow, an

instruction on involuntary manslaughter is not required." Id.

In determining whether such an instruction was warranted, "we 

consider the evidence in a light most favorable to the 

defendant." Tague, supra at 518.

The evidence in this case, taken in the light most 

favorable to the defendant, did not entitle him to an 

instruction on involuntary manslaughter. While the defendant's 

hands may have inadvertently gotten caught up in the victim's 

tank top during their struggle, by the defendant's own testimony

at trial, he then "pulled" the tank top in order "[t]o restrain 

her," while she was clawing at her neck in an effort to release 

the ligature. The defendant continued to do so, by his own 

estimate, for "a few minutes," until the victim had stopped

struggling. The obvious risk of physical harm associated with 

the continued pulling of a ligature around the victim's neck, so 
16

tightly that she could not remove it despite her efforts,

created a "plain and strong likelihood that death would follow." 

See Commonwealth v. Degro, 432 Mass. 319, 331 (2000). See also 

Commonwealth v. DeMarco, 444 Mass. 678, 684 (2005) (involuntary 

manslaughter instruction not warranted where defendant choked, 

strangled, and slammed victim on ground); Commonwealth v. 

Fitzmeyer, 414 Mass. 540, 547–548 (1993) (involuntary 

manslaughter instruction not warranted where defendant choked 

and beat victim); Commonwealth v. Garabedian, 399 Mass. 304, 

315–316 (1987) (involuntary manslaughter instruction not 

warranted where defendant strangled victim with drawstring from 

his jacket and threw rocks at her).

Moreover, the defendant strangled the victim with 

sufficient force so as to cut off the flow of oxygen to her

brain, causing hemorrhaging in her face and eyes. When she

became unresponsive and limp, he left the victim alone -- either 

unconscious or dead -- with the ligature still wrapped tightly 

around her neck. When he realized that the victim was dead, the

defendant did not call for emergency assistance until

approximately four or five hours had passed. In analogous 

circumstances, we have concluded that the evidence did not 

warrant an instruction on involuntary manslaughter. Cf. 

Commonwealth v. Felix, 476 Mass. 750, 760 (2017) (involuntary 

manslaughter instruction not warranted where defendant placed 
17

ligature around victim's neck and pulled with force for three to 

five minutes); Commonwealth v. Linton, 456 Mass. 534, 552–553 

(2010) (involuntary manslaughter instruction not warranted where 

defendant used manual force in strangling victim for at least 

ninety seconds, did not call for emergency aid, and left victim 

unconscious or dead behind locked door).

Because an involuntary manslaughter instruction was not 

reasonably supported by the evidence in light of the "plain and 

strong likelihood that death [would] follow" from the 

defendant's having pulled the tank top around her neck for 

several minutes, see Pierce, 419 Mass. at 33, we discern no 

error in the judge's decision not to provide one. See 

Commonwealth v. Nardone, 406 Mass. 123, 132 (1989) ("judge 

should not instruct a jury on a lesser-included offense not 

suggested by a reasonable view of the evidence").

c. Ineffective assistance of counsel. The defendant also 

moved for a new trial on the grounds that his trial counsel 

rendered constitutionally ineffective assistance by introducing, 

and then not explaining, the evidence that the defendant kept a 

knife under his pillow, and by delivering an incoherent closing 

argument. The motion judge, who was also the trial judge, 

denied the motion, from which the defendant now appeals. We 

review that decision for "a significant error of law or other 

abuse of discretion," and afford "special deference to the 
18

rulings of a motion judge who was also the trial judge"

(citation omitted). See Commonwealth v. Alcide, 472 Mass. 150, 

158 (2015). "When we review such a decision in the context of 

an appeal from a conviction of murder in the first degree, the 

defendant nevertheless 'has the benefit of our independent 

review, pursuant to G. L. c. 278, § 33E . . . of the entire 

record.'" Id., quoting Commonwealth v. Carter, 423 Mass. 506, 

513 (1996).

In evaluating a claim of ineffective assistance of counsel 

in a case of murder in the first degree, we review to determine 

"whether there exists a substantial likelihood of a miscarriage 

of justice, as required under G. L. c. 278, § 33E, which is more 

favorable to a defendant than the constitutional standard for 

determining ineffectiveness of counsel." See Commonwealth v. 

Walker, 460 Mass. 590, 598 (2011); Commonwealth v. Wright, 411 

Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014). In so doing, 

we need not consider whether counsel's action "fell measurably 

below the conduct expected from an ordinary fallible lawyer, but 

determine instead whether there was error and, if so, whether 

the error was likely to have influenced the jury's conclusion" 

(quotations and citation omitted). See Commonwealth v.

Franklin, 465 Mass. 895, 909 (2013).

i. Failure to elicit testimony. Prior to trial, the 

Commonwealth filed a motion in limine seeking to exclude 
19

evidence that the defendant had kept a knife under his pillow.11

The defendant sought to elicit this evidence because he believed

it would indicate that the defendant had a fear of the victim. 

The judge denied the Commonwealth's motion to exclude this 

evidence, but stated that the defendant could not argue that he 

feared the victim unless additional evidence were to be

introduced to support such an inference. The defendant 

subsequently testified, but his counsel did not ask him any 

questions about the knife under his pillow.12

In the defendant's motion for a new trial, the judge 

determined that an inadvertent failure by counsel to elicit

testimony about the knife likely constituted error. She noted, 

however, that "ineffective assistance is not established simply 

by showing that trial counsel failed to offer certain evidence." 

See Commonwealth v. Medina, 20 Mass. App. Ct. 258, 261 (1985). 

Indeed, courts must determine whether any such error was "likely 

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

Franklin, 465 Mass. at 909.

Having conducted an independent review of the entire trial 

record, we agree with the motion judge that any testimony about 

 

11 The victim's landlord had discovered the knife when he 

was cleaning out the apartment after the victim's death, and

gave it to investigating officers.

12 Trial counsel asserted in an affidavit in support of the 

defendant's motion for a new trial that the omission was 

inadvertent.
20

the defendant's possible fear of the victim was unlikely to have 

influenced the jury's conclusion. This is particularly true in 

light of what she deemed to be powerful evidence of deliberate 

premeditation arising from the medical examiner's demonstration 

of the ligature strangulation on a mannequin and the defendant's 

admissions at trial. Moreover, any testimony about the knife 

appears immaterial to the defense theory that the defendant

either had inadvertently wrapped the ligature around the 

victim's neck or had strangled the victim in a heat of passion

during mutual combat. Eliciting any further testimony about the 

reasons why the defendant kept a knife under his pillow thus 

would be unlikely to have bolstered the defense; by contrast, it 

could have served to undermine the defense that the defendant

did not plan or intend to kill the victim. See Commonwealth v. 

Montez, 450 Mass. 736, 754-755 (2008) (no ineffective assistance 

where additional testimony would have undermined defense).13

Any passing reference to the existence of a knife at trial 

also was brief and insubstantial. Neither the prosecutor nor

defense counsel made reference to the knife in their arguments, 

and mention of the knife formed only a very small portion of the 

 

13 The jury also were instructed that they could not engage 

in any guesswork, conjecture, or speculation about the evidence. 

We presume, as we must, that the jury heeded those instructions 

and did not impermissibly speculate about the knife. See 

Commonwealth v. Rivera, 482 Mass. 259, 271 (2019).
21

testimony; it thus likely had but very slight effect on the 

jury. In light of the overwhelming evidence of the defendant's 

guilt, we are confident that even if counsel had fully developed 

this evidence at trial, it would not have influenced the jury's 

conclusion that the defendant intended to strangle the victim.

As such, we discern no substantial likelihood of a miscarriage 

of justice. See Commonwealth v. Facella, 478 Mass. 393, 411 

(2017) (failure to elicit evidence at trial not ineffective 

assistance resulting in miscarriage of justice "[g]iven the 

overwhelming evidence of the defendant's guilt"); Commonwealth

v. Griffith, 404 Mass. 256, 263 (1989) (counsel's tactics not 

ineffective assistance "[c]onsidering the overwhelming evidence 

against the defendant"). We discern no error in the judge's 

denial of the motion for a new trial on this basis.

ii. Closing argument. The defendant maintains also that 

his counsel rendered ineffective assistance by delivering an 

unfocused closing argument that failed to marshal the evidence 

in favor of a conviction of voluntary manslaughter.

While counsel's argument did include several irrelevant 

anecdotes and references to popular culture,14 any such remarks 

 

14 For example, counsel made references to his own 

experience serving on a jury, as well as the advice provided by 

other judges whom he admired on the role of the jury. Counsel 

also included anecdotes about his children, astronauts, and 

celebrities. The judge characterized the closing argument as 
22

must be "considered in the context of the entire argument, and 

in light of the judge's instructions to the jury and the 

evidence at trial." See Commonwealth v. Nieves, 429 Mass. 763, 

772 (1999). Indeed, the "guaranty of the right to counsel is 

not an assurance to defendants of brilliant representation or 

one free of mistakes." Commonwealth v. Kolenovic, 478 Mass. 

189, 196 (2017), quoting Commonwealth v. LeBlanc, 364 Mass. 1, 

13-14 (1973).

Considering the closing argument as a whole, this is not a 

case in which counsel's argument abandoned the theory of the 

case or failed effectively to argue that theory, leaving the 

client "denuded of a defense." Commonwealth v. Street, 388 

Mass. 281, 287 (1983). Nor it is a case in which counsel's 

statements were "tantamount to an admission of his client's 

guilt." Commonwealth v. Triplett, 398 Mass. 561, 569 (1986). 

Rather, counsel here touched upon all of the relevant evidence 

that could have supported a verdict of voluntary manslaughter as 

opposed to murder. Specifically, counsel noted,

"[T]here will be an instruction that you can consider 

whether or not the defendant is guilty of the crime of 

voluntary manslaughter. That this was sudden combat 

and that the death resulted from his actions during --

after this sort of hot blood provocation, things of 

that particular nature. [The victim] hits him with 

the phone, they struggle. [The defendant] says 

they're both throwing punches, landing punches, 

 

displaying counsel's "folksy, salt-of-the-earth" style, in which 

he was "trying to connect on a personal level with the jurors."
23

they're on the floor. He gets up. He says he reaches 

around probably grabs her shirt. But to do this, to 

really know that this is what's going to result is 

death I would suggest would take some specialized 

knowledge that he doesn't have."

Counsel concluded by saying it was "not even clear . . . that 

[the defendant] had the intent to kill out of this provocation," 

and urged the jury that "when you apply all the law[,] the duty 

to return the verdict that best fits the facts of this 

case . . . [is] voluntary manslaughter."

The defendant also critiques counsel's performance by 

pointing to an alternative use of the facts that might have 

better persuaded the jury. "A list of subjective critiques of 

defense counsel's [performance], absent a showing that errors 

likely affected the jury's conclusions," however, "is 

insufficient to support an ineffective assistance claim." See 

Commonwealth v. Degro, 432 Mass. 319, 333 (2000), quoting 

Commonwealth v. Scott, 428 Mass. 362, 369 (1998). Indeed, "[i]t 

is far too easy to examine a transcript and point to ways to 'do 

it better.'" Degro, supra. Several statements in counsel's 

closing, although perhaps interposed with personal stories,

focused on the theory of the defense: that the defendant had 

not acted with premeditation, but had strangled the victim in 
24

the heat of passion. "This was a reasonable choice, in the face 

of overwhelming evidence of guilt." See id.15

We thus discern no substantial likelihood of a miscarriage 

of justice on the basis of counsel's closing argument, and no 

abuse of discretion in the denial of the defendant's motion for 

a new trial.

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

also requests that this court exercise its authority to reduce 

the verdict to murder in the second degree, particularly in 

light of the unplanned nature of the attack.16 We decline, 

however, to disturb the jury's verdict that the defendant 

 

15 Counsel also had to make his closing argument in light of

the defendant's testimony that he had pulled the tank top around 

the victim's neck in order to restrain her and the defendant's

cryptic statement to Reeves that she should not expect to see 

him for the next "ten years." These statements, indicating a 

possible plan to harm grievously the victim, were difficult to 

overcome. So, too, were the defendant's statements to a police 

officer that he had strangled the victim, and his testimony at 

trial that the strangulation lasted a "few minutes." 

Nonetheless, counsel presented the defense theory of the case

with reference to the critical facts and testimony in support 

thereof. Cf. Commonwealth v. Marrero, 459 Mass. 235, 246 (2011) 

(affirming conviction where "several, and perhaps even all, of 

the statements" made in closing were improvident).

16 More specifically, the defendant requests a reduction in 

the verdict because he has a limited education, see Commonwealth

v. McDermott, 393 Mass. 451, 460 (1984); the attack was 

unplanned and senseless, see Commonwealth v. Pagan, 471 Mass. 

537, 543, cert. denied, 136 S. Ct. 548 (2015); he did not bring 

a weapon to the scene, see Commonwealth v. King, 374 Mass. 501, 

507 (1978); and there was no history of animosity or 

confrontation between him and the victim, see Commonwealth v. 

Ransom, 358 Mass. 580, 583 (1971).
25

strangled the victim to death with deliberate premeditation, 

which was supported by ample evidence. Compare Commonwealth v. 

Mejia, 461 Mass. 384, 393 (2012) ("evidence of death by manual 

strangulation sufficient to establish malice and deliberate 

premeditation"); Commonwealth v. Serino, 436 Mass. 408, 411 

(2002) (evidence of premeditation inherent in method of death 

through sustained pressure to victim's neck). Pursuant to our 

duty under G. L. c. 211, § 3, we have thoroughly reviewed the 

entire trial record and discern no other reason to grant a new 

trial or to reduce the verdict.

3. Conclusion. For the foregoing reasons, we affirm the 

judgment of conviction. The order denying the defendant's 

motion for a new trial is also affirmed.

So ordered.