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SJC-11127

COMMONWEALTH vs. JOONEL GARCIA.

Essex. December 6, 2013. - October 29, 2014.

Present: Spina, Cordy, Botsford, Duffly, & Lenk, JJ.

Homicide. Home Invasion. Burglary. Armed Assault with Intent 

to Rob. Felony-Murder Rule. Joint Enterprise. Evidence, 

Joint venturer, Impeachment of credibility, Crossexamination, Redirect examination, Accident.

Constitutional Law, Assistance of counsel. Practice, 

Criminal, Required finding, Instructions to jury, 

Assistance of counsel, Capital case. Witness, Impeachment, 

Cross-examination, Redirect examination.

Indictments found and returned in the Superior Court 

Department on March 1, 2006. 

The cases were tried before David A. Lowy, J.

Jeffrey L. Baler for the defendant.

Kenneth E. Steinfield, Assistant District Attorney, for the 

Commonwealth.

DUFFLY, J. The defendant was indicted on charges of murder 

in the first degree and five related offenses in connection with 

the death of Rafael Castro on August 26, 2004.1 A Superior Court 

 

1 The other indictments charged home invasion, G. L. c. 265, 
2

jury found the defendant guilty of murder in the first degree on 

theories of extreme atrocity or cruelty and felony-murder, based 

on the underlying felonies of both home invasion and armed or 

assaultive burglary. The jury also found the defendant guilty 

of the other charges. The jury did not specify whether they 

found the defendant guilty of any of the offenses as a principal 

or as a joint venturer. 

On appeal, the defendant maintains that the evidence was 

insufficient to show that he shared the requisite intent to 

commit the crimes charged. The defendant contends also that his 

right to a fair trial was denied when he was not permitted to 

impeach a Commonwealth witness by confronting her with a child 

she observed outside the court room, whom she testified she 

believed to be her deceased child, although the witness was 

permitted on redirect examination to testify to the reasons she 

had formed that belief. In addition, the defendant asserts that 

a new trial is required because the judge erroneously declined 

to give two requested jury instructions, and because his counsel 

was ineffective for failing to object when the judge instructed 

that accident was not a defense to the killing. The defendant 

 

§ 18C, armed or assaultive burglary, G. L. c. 266, § 14, armed 

assault with intent to rob, G. L. c. 265, § 18 (b), and two 

counts of kidnapping, G. L. c. 265, § 26, one with respect to 

Rafael Castro and one with respect to Norma Cedeno.
3

also requests that we exercise our authority to provide relief 

pursuant to G. L. c. 278, § 33E. We affirm the convictions, and 

discern no reason to grant a new trial or to reduce the verdict 

of murder in the first degree to a lesser degree of guilt. 

Background. We summarize the facts the jury could have 

found, reserving certain facts for later discussion.

1. The shooting on August 26, 2004. Castro, whose street 

name was "Calvo," was a drug dealer. In August, 2004, Castro 

lived with Ramona Gonzalez in a sixth-floor apartment in an 

apartment building in Lawrence. At times, Gonzalez also was 

involved in drug dealing, as was her daughter, Norma Cedeno, who 

lived primarily in the Dominican Republic. On August 26, 2004, 

Gonzalez was in New York. Castro drove to Logan airport in 

Boston to pick up Cedeno, who was to arrive that evening from 

the Dominican Republic. After picking up Cedeno, Castro drove 

her back to the apartment building, where they arrived at 

approximately 11:15 P.M. Castro used his key to unlock the 

front door to the apartment. Cedeno entered the darkened 

apartment first, putting down some takeout food they had 

purchased en route, and heading directly to the bathroom. 

Although the apartment lights were off, there was some 

illumination from exterior street lighting. As Cedeno took a 

step into the bathroom, a man grabbed her and threw her to the 
4

floor, holding her down while putting a gun to the back of her 

neck and ordering her to look down. Cedeno cried out, "Oh my 

God." 

Earlier that day, the defendant and his girl friend, 

Jessica Encarnacion, had been in their apartment when a man 

known as "Gringo"2 arrived with two other men, Cesar Santana and 

Alfredo Catalino. Another man, "Propeto," had arrived at the 

defendant's apartment separately several hours earlier in the 

day, and was there when Gringo and the other two men arrived.3 

The four men often socialized together. Gringo, who was 

acquainted with Castro, told the defendant that there was "a job 

to do," and that they were going to "take something from Calvo 

. . . some drugs that he had" that had been brought from Texas. 

If the defendant agreed to help, they would be able to live as 

"retirees." Around 2 P.M., Gringo drove the defendant to 

Castro's apartment building and pointed it out to him. Later 

that night, Gringo drove the defendant, Santana, and Catalino to 

the apartment building.4 Gringo said that he had learned that 

 

2 The defendant rented the apartment from "Gringo," who was 

also known by several other names, including Ramon Ortiz, Ramon 

Ortiz Peralta, Josue (or Joshua or Joseph) Martinez Vargas, and 

Santo Delarosa.

3 Although the spelling "Propito" also appears in the 

record, we refer to "Propeto" for convenience.

4 Propeto did not go with the others to Castro's apartment, 
5

Castro was not there, and they would wait for Castro to return. 

The four men, two of whom had guns, entered the building 

using a pass card Gringo had and then entered Castro's apartment 

using a key that Gringo produced. They waited in the apartment 

for approximately thirty minutes before they heard a door 

opening. At that point, Gringo told the defendant, Santana, and 

Catalino to go into the bathroom and that he, Gringo, would 

remain in the living room. Castro entered the apartment after 

Cedeno, and started to run toward the living room when another 

man "jumped" out to meet him. Castro lunged at the man, and the 

man shot Castro in the forehead, seriously injuring him. The 

bullet, which did not penetrate Castro's face, traveled 

diagonally downward from the top of his forehead, where the 

wound was deepest, over his right eye and cheek, lacerating the 

skin. He was alive, but bleeding profusely. Some of the men, 

including the defendant, took Castro into the smaller of the 

apartment's two bedrooms. The men, whose voices she did not 

recognize, told Cedeno that they would kill her if she looked up 

because she "was going to know who they were," and put a pillow 

case over her head, which remained covered until the men left 

the apartment. Cedeno was taken to the larger bedroom where one 

 

but was watching television with the defendant's girl friend, 

Jessica Encarnacion, when the four men returned at approximately 

1 A.M.
6

of the men remained with her.

Some of the men wrapped duct tape around Castro's ankles 

and wrists,5 and one or more yelled at Castro, demanding drugs 

and money. When Castro denied that he had any drugs, the men 

demanded that he make a telephone call. Castro offered to get 

them $20,000 if they cut him loose, but the men laughed at this 

offer and refused. They continued to yell at Castro, and to hit 

him. Cedeno could hear Castro whimpering and groaning in pain, 

asking them to remove the tape, and repeatedly asking for water. 

At one point, Cedeno was brought into the room with Castro; the 

men took off her shirt and threatened to burn her with a hot 

iron. Cedeno "could smell the burn of the iron," and she 

implored Castro to tell the men what they wanted to know. In a 

weak voice, Castro said, "Don't do it." One of the men put 

Cedeno's shirt back on and took her back to the other bedroom. 

Cedeno could hear the men walking around the apartment making 

calls on their cellular telephones, becoming angrier, and saying 

things like, "He doesn't want to talk," and, "He doesn't want to 

make the phone call. What are we going to do next?" One of the 

men said they should "[j]ust kill him."

A man tied Cedeno's ankles with duct tape, but she 

 

5 According to expert testimony, the defendant's right thumb 

print matched a latent print on a role of duct tape police found 

in the apartment.
7

persuaded him not to tie her hands. The man told Cedeno that 

three of them were leaving, but that one was going to stay 

behind in case she tried to call the police. In an angry voice, 

he told her, "We already know who you are, so if you call the 

police, or . . . one of us get[s] caught, we [are] just going to 

come back and get you." He said that he had a blade in his hand 

and would cut her face, and that they "all [had] guns." 

Approximately ninety minutes had passed since the incident 

began. When the man left, Cedeno heard the door shut, but was 

not sure whether any of the other men remained in the apartment. 

She waited before calling out to Castro and asking if he was 

there alone; in a faint voice, he asked her to open the door and 

help him. Cedeno pulled herself into the kitchen and cut the 

duct tape from her ankles with a knife. 

The door to the bedroom in which Castro had been placed was 

locked, and Cedeno used part of a bracelet to pick the lock. 

Castro was lying on the floor and there was a lot of blood, 

particularly on his face. She removed the duct tape binding 

him, and held his hand for a short time to comfort him. She 

tried calling for help on the apartment's telephone, but it had 

been pulled from the wall, and the intruders had taken Castro's 

cellular telephone. Cedeno found another telephone and 

telephone cord in a drawer, and used it first to call her mother 
8

and Ricardo Rosa, a former boy friend who lived in the same 

building and was a friend of Castro's. She was afraid to 

contact police at that point because she did not know if the men 

were waiting to see if she would do so. After speaking with her 

mother and Rosa, Cedeno telephoned 911; an ambulance, dispatched 

at 12:53 A.M., arrived three to four minutes later. Upon 

arriving, paramedics saw an "extremely large pool of blood" and 

found Castro lying on the bedroom floor. They determined that 

Castro was dead and notified Lawrence police at 1:03 A.M. The 

cause of death was cardiac arrest resulting from loss of blood 

from the gunshot wound to the forehead. 

2. Flight from Massachusetts. Encarnacion and Propeto 

were watching television when the defendant returned to his 

apartment at approximately 1 A.M, accompanied by Gringo, 

Santana, and Catalino. The defendant was not wearing the 

clothes he had been wearing when he left, but, rather, was 

wearing "girl's pants" and a different shirt. When he took off 

that shirt, Encarnacion could see the front of the shirt that 

the defendant had been wearing earlier, covered with blood 

spatter. Encarnacion also observed blood spatter on the 

defendant's shoes. When she asked about the blood and the 

pants, the defendant said that nothing had happened and not to 

worry about it. He told her: "Just, [s]hut up. Get me a bag. 
9

I need to take these clothes off and put them in a bag. And 

just keep packing. We have to leave here to [go] out of state."

Encarnacion gave the defendant a trash bag; he put the 

clothes he had been wearing into the bag, and left the apartment 

with it. Gringo, Santana, and Catalino went with him. They 

returned five minutes later, without the bag.6 The defendant was 

acting nervous. In response to Encarnacion's questions, he told 

her that he had discarded the bag; when she asked why, he said, 

"I'll talk to you when we get out of here." He then said that 

they would have to go to the Dominican Republic because his visa 

was expiring. Less than fifteen minutes later, they left in 

Gringo's automobile, headed for John F. Kennedy Airport in New 

York.

During the drive, the defendant took a gun from a bag; it 

was gray with a laser light. Encarnacion had never seen the gun 

before. The defendant said, "Damn, I bought a gun and now I 

have to throw it away," then, later, "[s]uch a good gun, and I 

have to throw it away." The men discussed how to get rid of the 

gun. After approximately half an hour, they took an exit off of 

the highway and stopped; the defendant and Gringo took the bag 

that held the gun and disappeared into the woods. They were 

 

6 Propeto left with the other men, but did not return with 

them.
10

gone seven minutes while the others waited in the vehicle. When 

the two men returned, the defendant said that they would go to 

New York "as soon as possible" and take "the first plane to 

[the] Dominican Republic." No one responded when Encarnacion 

asked what had happened. 

At the airport, Gringo gave the defendant $1,000 in cash, 

which Encarnacion used to purchase two one-way tickets on a 

flight leaving for the Dominican Republic at 7 A.M. During the 

flight, the defendant told Encarnacion that something really bad 

had happened, but that he was not going to talk until he had a 

chance to calm down and get some rest. Once they had landed and 

had reached the defendant's brother's house, the defendant told 

Encarnacion that he had gone to claim some money that someone 

owed him for drugs, and that he, Gringo, Santana, and Catalino 

waited in the man's apartment until the man arrived. The 

defendant said that he was with Gringo in the bathroom, and 

Gringo had the gun because he planned to scare the man into 

giving him the money that the man owed. When the man opened the 

bathroom door and turned on the light, he was shocked to see 

Gringo with a gun. The man was trying to take the gun from 

Gringo when the gun went off accidentally and shot the man. The 

defendant said that they had not expected the man's daughter, 

who had walked into the apartment with the man, to be there. 
11

The defendant and Catalino tied the man up using duct tape and 

told the man that they would make a call for the money, but they 

did not get anything and left.

Encarnacion eventually returned to Lawrence and spoke with 

police several times concerning the events of August 26. The 

defendant was arrested after he, too, returned to Lawrence. 

While at the Suffolk County house of correction, the defendant 

gave an audiorecorded statement to police, in which he admitted 

to going to Castro's apartment with the other three men on 

August 26, intending to rob Castro, but stated that Gringo had 

been the one holding the gun, which the defendant said 

discharged accidentally when Castro lunged at Gringo.

Discussion. 1. Sufficiency of the evidence. The 

defendant claims that the evidence was insufficient to establish 

that he shared the intent required to support his convictions of 

murder, home invasion, armed or assaultive burglary, and armed 

assault with intent to rob.7 In reviewing a claim of 

insufficient evidence, we ask whether, viewing the evidence in 

the light most favorable to the Commonwealth, "any rational 

trier of fact could have found the essential elements of the 

crime beyond a reasonable doubt." Commonwealth v. Perez, 460 

 

7 The defendant conceded at trial that the evidence was 

sufficient to support a finding of guilt as to both charges of 

kidnapping.
12

Mass. 683, 702 (2011), quoting Commonwealth v. Latimore, 378 

Mass. 671, 677 (1979). We take this view of the evidence 

notwithstanding any evidence to the contrary presented by the 

defendant. Commonwealth v. Latimore, supra at 676-677.

In reviewing the sufficiency of the evidence on a theory of 

joint venture, we consider whether the evidence supports a 

finding that "the defendant knowingly participated in the 

commission of the crime charged, alone or with others, with the 

intent required for that offense." Commonwealth v. Norris, 462 

Mass. 131, 138-139 (2012), quoting Commonwealth v. Zanetti, 454 

Mass. 449, 468 (2009). "The felony-murder rule 'imposes criminal 

liability for homicide on all participants in a certain common 

criminal enterprise if a death occurred in the course of that 

enterprise.'" Commonwealth v. Hanright, 466 Mass. 303, 307, 

(2013), quoting Commonwealth v. Matchett, 386 Mass. 492, 502 

(1982). To be liable for felony-murder, a defendant need only 

possess the intent necessary for the underlying felony. 

Commonwealth v. Hanright, supra. Because the underlying felonies 

here of home invasion, G. L. c. 265, § 18C, and armed burglary, 

G. L. c. 266, § 14, as well as the separate offense of armed 

assault with intent to rob, G. L. c. 265, § 18 (b), require that 

the Commonwealth establish that the perpetrator was armed, 

"knowledge of a weapon is an element of the Commonwealth's proof 
13

when a defendant is prosecuted on a theory of joint venture." 

Commonwealth v. Britt, 465 Mass. 87, 99 (2013). See Commonwealth

v. Gorman, 84 Mass. App. Ct. 482, 489 (2013).

The evidence presented would have allowed the jury to find 

that the defendant intended to aid in robbing Castro and that he 

knew that at least one of the intruders was armed. The jury 

heard evidence that the defendant agreed to go with Gringo to 

take a large quantity of drugs from Castro; that the defendant 

went to Castro's apartment with Gringo to become familiar with it 

and then returned at a time when they had information that Castro 

would not be present; that at least two of the men were armed 

when they entered the apartment; that upon hearing Castro 

unlocking the door, some of the men secreted themselves in the 

bathroom; that one of the men wanted to use a gun to scare Castro

into giving them money, and shot Castro soon after Castro entered 

the apartment; and that one of the guns wielded belonged to the 

defendant who was in possession of it shortly after the men left 

the apartment. This evidence sufficed to show that the defendant 

had the requisite intent to commit home invasion, armed burglary, 

and armed assault with intent to rob.

The defendant's actions after the men left Castro's 

apartment provided additional evidence of an intent to 

participate in a joint venture to commit the crimes charged. The 
14

four men returned together to the defendant's apartment, where 

they discarded his bloodied clothing, and planned and executed a 

further escape. See Commonwealth v. Akara, 465 Mass. 245, 255 

(2013), and cases cited (defendant seen holding gun and standing 

near coventurer immediately before shooting, and fleeing while 

laughing with coventurers immediately after shooting); 

Commonwealth v. Williams, 422 Mass. 111, 121 (1996) ("Joint 

venture may be proved by circumstantial evidence, including 

evidence of flight together"). Hence, viewing the evidence in 

the light most favorable to the Commonwealth, the jury heard 

sufficient evidence to conclude beyond a reasonable doubt that 

the defendant was guilty of armed home invasion and armed 

burglary and, consequently, of felony-murder, as well as of 

assault with intent to rob. See Commonwealth v. Pytou Heang, 458 

Mass. 827, 836 (2011).

There was also sufficient evidence from which the jury could 

have concluded that the defendant possessed the requisite intent 

to commit murder in the first degree on a theory of extreme 

atrocity or cruelty. The mental intent necessary to support such 

a conviction is malice. Commonwealth v. Szlachta, 463 Mass. 37, 

47 (2012), quoting Commonwealth v. Cunneen, 389 Mass. 216, 227 

(1983). "Malice is defined in these circumstances as an intent 

to cause death, to cause grievous bodily harm, or to do an act 
15

which, in the circumstances known to the defendant, a reasonable 

person would have known created a plain and strong likelihood 

that death would follow." Commonwealth v. Szlachta, supra at 45-

46, quoting Commonwealth v. Chhim, 447 Mass. 370, 377 (2006).

Here, the Commonwealth introduced evidence that, while 

Castro was bleeding profusely following the shooting, the 

defendant and the other intruders bound and repeatedly struck him 

as he moaned in pain and asked for water. See Commonwealth v. 

Semedo, 422 Mass. 716, 720 (1996), citing Commonwealth v. 

Mahoney, 406 Mass. 843, 848 (1990) (sufficient evidence of malice 

based on plain and strong likelihood of death, where reasonable 

person would have known that victim could suffer death as beating 

progressed); Commonwealth v. Plunkett, 422 Mass. 634, 637 (1996) 

(evidence would have sufficed to show malice based on plain and 

strong likelihood of death where defendant bound and gagged 

victim, resulting in victim's death). Castro's voice became weak 

during the time the intruders were in the apartment, while they 

were musing aloud on whether they should kill him; the defendant 

himself described Castro as barely alive by the time he and the 

other men left. Furthermore, before departing, the intruders 

locked the door to the bedroom where Castro was restrained at 

both his hands and his feet, pulled the apartment telephone cord 

from the wall, took Castro's cellular telephone, warned Cedeno 
16

not to call for help, and left her in another room with her 

ankles bound. The jury could have found that a reasonable person 

would have known that all of these actions impeded Castro's 

ability, while bleeding heavily, to obtain emergency assistance, 

and that there was a plain and strong likelihood that death would 

follow. See Commonwealth v. Auclair, 444 Mass. 348, 363-364 

(2005); Commonwealth v. Maynard, 436 Mass. 558, 562-563 & n.4 

(2002); Commonwealth v. Perry, 432 Mass. 214, 218, 221-224 

(2000).

2. Impeachment of Commonwealth's witness. In addition to 

challenging the sufficiency of the evidence, the defendant 

contends that he was denied his right to a fair trial because he 

was not permitted to impeach Encarnacion by confronting her with 

a child whom she had observed outside the court room and believed 

to be her deceased daughter. On direct examination, Encarnacion 

testified that she became pregnant with the defendant's child 

while they were in the Dominican Republic, after their arrival on 

August 27, 2004. She returned to the United States in February 

or March of 2005, and ended her relationship with the defendant 

that June. Encarnacion gave birth to her daughter on August 22, 

2005.8

 

8 Encarnacion subsequently testified that she agreed to 

surrender the child to the defendant's mother in the Dominican 

Republic because of Encarnacion's then drug problems and unstable 
17

Toward the end of Encarnacion's direct examination, the 

prosecutor questioned her about statements she made to police 

soon after returning to Lawrence. Encarnacion testified that she 

had lied at that time, in particular regarding her knowledge of 

the gun and its disposal, and her trip to the airport in New York 

with the defendant in August, 2004. She testified that she had 

been afraid, that she believed she could go to jail because she 

knew something about a murder, and that she had been depressed, 

but that she had since been seeing a therapist and taking 

medication. Encarnacion said that she was in court because she 

wanted to be honest and tell the truth and she no longer wanted 

to put herself in the "middle of anything."

On cross-examination, defense counsel elicited testimony 

that Encarnacion had sworn to tell the truth when she appeared 

before the grand jury, but that she had lied in testifying that, 

when the defendant came back to their apartment with blood on his 

clothes, he was crying and saying things such as, "I can't 

believe Gringo made me do this." Encarnacion insisted that 

although she had lied out of fear for her life, she was being 

honest in her trial testimony. "At that point, I was trying to 

 

living circumstances. Sometime roughly in December, 2006, after 

Encarnacion had begun speaking to police and the defendant had 

been charged in this case, the defendant's mother and brother 

told Encarnacion that her daughter had died. Encarnacion neither 

sought nor received confirmation of her daughter's death.
18

defend him, but now I'm not defending nobody. . . . I have three 

kids. I have two living with me. One, his mother took away, 

which I'm going to fight back. And I am not here to put him 

down. Because if I really wanted to put him down, I would have 

just came to the police and made up another story saying maybe he 

shot the guy; don't you think?" 

At that point, defense counsel asked, "You just told the 

jury that [the defendant's] mom -– who's out in the hall, 

right? -- has your daughter, [a]nd you're now going to fight to 

get your daughter." Encarnacion responded:

"Because she told me my daughter was dead for three years. 

She adopted my daughter, and made me believe my daughter was 

dead for three years. And she brings her today, to this 

court, to make me look nervous and make me look stupid and 

maybe put myself in the middle for this: okay. I'm very 

nervous right now. My daughter is alive. She made me 

believe for three single years. I ended up in a psychology 

center, cutting myself, going crazy, thinking my daughter is 

dead. And all of a sudden, she's here today? That's not 

fair. That's not fair."

See note 8, supra. Defense counsel also asked whether 

Encarnacion had attempted suicide because the defendant's mother 

had custody of her daughter, to which Encarnacion replied, "No. 

Because she made me believe my daughter was dead." 

After a brief recess, defense counsel questioned Encarnacion 

regarding her perceptions of the child in the hallway whom she 

believed to be her daughter. He elicited testimony that 

Encarnacion's daughter would have been a little over three years 
19

old, and then sought to present the child, whom defense counsel 

described as fifteen months old, to the jury, in order to show 

that the child could not rationally have been mistaken for a 

three year old. The judge denied as collateral and unduly 

prejudicial the request to present the child for Encarnacion to 

identify and for the jury to see. He noted that the information 

could be introduced through other means, such as testimony by 

other witnesses.9

The defendant contends that the judge impeded his ability to 

cross-examine Encarnacion by denying his request to present the 

child in court and by allowing the Commonwealth to rehabilitate 

Encarnacion on redirect examination with details regarding the 

circumstances in which she saw the child. The Massachusetts and 

Federal Constitutions guarantee a defendant's right to crossexamine prosecution witnesses. See Commonwealth v. Meas, 467 

Mass. 434, 449 (2014), quoting Commonwealth v. Allison, 434 Mass. 

670, 681 (2001); Commonwealth v. Mercado, 456 Mass. 198, 202 & 

n.9 (2010). "Nevertheless, a judge may limit the scope of crossexamination as long as he or she does not completely bar inquiry 

 

9 At side bar, counsel described Encarnacion as having gone 

off "on this tirade that I think is irrational, and shows she's 

psychotic." The judge inquired of both attorneys if they thought 

the witness was "too distraught to testify" further that day, and 

the prosecutor agreed that she was. Encarnacion's testimony 

resumed the following day.
20

into a relevant subject." Commonwealth v. Williams, 456 Mass. 

857, 873 (2010). A judge has broad discretion in circumscribing 

the proper scope of cross-examination, Commonwealth v. Mercado, 

supra at 203; Commonwealth v. Vardinski, 438 Mass. 444, 451 

(2003), and may impose such limits "based on concerns about, 

among other things, harassment, prejudice, confusion of the 

issues, the witness's safety, or interrogation that is repetitive 

or only marginally relevant." Commonwealth v. Johnson, 431 Mass. 

535, 540 (2000), quoting Delaware v. Van Arsdall, 475 U.S. 673, 

679 (1986). See Commonwealth v. Avalos, 454 Mass. 1, 7 (2009), 

and cases cited. To determine whether a judge acted beyond this 

discretion, "we weigh the materiality of the witness's direct 

testimony and the degree of the restriction on crossexamination." Commonwealth v. Mercado, supra, quoting 

Commonwealth v. Vardinski, supra. The defendant bears the burden 

of proving that the judge acted improperly. See Commonwealth v. 

Avalos, supra, quoting Commonwealth v. Weichel, 403 Mass. 103, 

105 (1988).

We conclude that the judge did not abuse his discretion in 

prohibiting the defendant from presenting the child for 

Encarnacion to identify and for the jury to see. Notwithstanding

the materiality of Encarnacion's testimony in corroborating the 

defendant's participation in the killing, the judge did not "bar 
21

all inquiry into the subject" of her mental state. See 

Commonwealth v. Avalos, supra at 7, quoting Commonwealth v. 

Allison, supra at 681. Defense counsel elicited testimony that 

Encarnacion had struggled in the past with mental health issues, 

that no one had told her that the child she saw was her daughter, 

that her only reason for believing the child to be her daughter 

was that she saw from afar the defendant's mother holding the 

child, and that she made no attempt to verify the child's 

identity at that time. Furthermore, although he would not allow 

the child to be brought into the court room, "[t]he trial judge 

provided counsel an opportunity" to present other evidence of the 

child's age and physical appearance, which counsel ultimately 

decided not to do. See Commonwealth v. Williams, 456 Mass. at 

873. The judge had discretion to limit the manner in which 

counsel could offer evidence of the child's apparent age. Cf. 

Commonwealth v. Mercado, supra at 203-204 (judge could limit 

defense counsel's use of "inflammatory" photographs on crossexamination where counsel thoroughly cross-examined witness 

regarding point in question). In particular, the judge noted his 

concern that presenting the child in the court room would cause 

Encarnacion unnecessary distress. Cf. Commonwealth v. Johnson, 

431 Mass. at 540, quoting Alford v. United States, 282 U.S. 687, 

694 (1931) (judge should "protect [a witness] from questions 
22

which go beyond the bounds of proper cross-examination merely to 

harass, annoy or humiliate").

The defendant contends also that Encarnacion's testimony on 

redirect examination was overly broad and unduly prejudicial 

because it suggested that the defendant and his mother had acted 

intentionally to provoke Encarnacion's response to the child. 

"The purpose of redirect examination is to explain or rebut 

adverse testimony or inferences developed during crossexamination." Commonwealth v. Borgos, 464 Mass. 23, 35 (2012), 

quoting Commonwealth v. Hoffer, 375 Mass. 369, 375 (1978). As 

with cross-examination, a trial judge has considerable discretion 

over the scope of redirect examination. See Commonwealth v. 

Rosario, 460 Mass. 181, 193 (2011); Commonwealth v. Ostrander, 

441 Mass. 344, 356, cert. denied, 543 U.S. 867 (2004). A 

defendant who asserts an abuse of this discretion on appeal 

"assumes a heavy burden." Commonwealth v. Arriaga, 438 Mass. 

556, 577 (2003), quoting Commonwealth v. Maltais, 387 Mass. 79, 

92 (1982). See Commonwealth v. Ostrander, supra at 356-357, 

quoting Commonwealth v. Roberts, 433 Mass. 45, 51 (2000) (judge 

has "nearly unreversible discretion" with respect to redirect 

examination).

The judge in this case carefully limited the scope of 

redirect examination. The defendant's challenge to Encarnacion's 
23

credibility, based on her belief that the child she saw in the 

court house was her daughter, opened the door for the 

Commonwealth to rehabilitate Encarnacion by allowing her to 

explain the circumstances that led her to form this belief. See 

Commonwealth v. Arriaga, 438 Mass. at 577; Commonwealth v. 

Marrero, 427 Mass. 65, 69 (1998); Commonwealth v. Olszewski, 416 

Mass. 707, 718 (1993), cert. denied, 513 U.S. 835 (1994). In 

particular, the judge permitted Encarnacion to testify that the 

defendant's mother had informed her of her daughter's death in 

the course of berating and threatening her for cooperating with 

police; that she never received confirmation of her daughter's 

death, such as a death certificate or photographs from the 

funeral; that she saw the defendant's mother holding a baby girl 

in the court house hallway; and that the child resembled her 

daughter. "Having opened the door to this information, . . . the 

defendant's claim of prejudice is highly suspect." Commonwealth

v. Marrero, supra, quoting Commonwealth v. Otsuki, 411 Mass. 218, 

236 (1991).

At the same time, the judge minimized the prejudicial impact 

of the testimony by preventing the prosecutor from suggesting 

that the defendant or his mother intentionally arranged 

Encarnacion's encounters with the child in order to provoke her 
24

reaction.10 He sua sponte cut-off Encarnacion's testimony when it 

appeared that she would begin testifying about the motive of the 

defendant's mother. Likewise, when Encarnacion testified that 

she thought the defendant's mother was attempting to "intimidate" 

her, the judge asked defense counsel if he would like to have 

that comment stricken. Defense counsel declined, apparently 

based on his strategic assessment that Encarnacion's testimony 

sounded irrational and only harmed her credibility; at sidebar, 

defense counsel suggested that the longer Encarnacion testified 

about the child, the more irrational she appeared. Finally, the 

judge repeatedly offered to issue a limiting instruction, which 

defense counsel declined, that Encarnacion's testimony on 

redirect examination was to be used only to evaluate her 

credibility. See Commonwealth v. Stone, 70 Mass. App. Ct. 800, 

807 (2007) ("The trial judge's offer to give a jury instruction 

to emphasize the limited relevance of [the witness's] testimony 

shows the extent to which he analyzed the prejudicial effect 

versus the probative value before deciding in favor of 

admissibility").

 

10 The judge expressed concern that the defendant might be 

unduly prejudiced if the jury were to conclude that the defendant 

or his family had devised the plan to bring the child into the 

court house and display her to Encarnacion in order to unhinge 

her, and, on that basis, further conclude that the defendant had 

done so because he was guilty of the charged offenses and needed 

to impeach the person to whom he had confessed.
25

The defendant argues that presenting alternative evidence of 

the child's appearance or requesting a limiting instruction would 

have exacerbated the prejudice to him by drawing greater 

attention to his possible role in a scheme to manipulate 

Encarnacion. Defense counsel was free to make such a tactical 

assessment, but we presume that the jury would have heeded any 

limiting instruction. See Commonwealth v. Roberts, 433 Mass. 45, 

52-53 (2000). There was no abuse of discretion in the manner in 

which the judge limited the scope of Encarnacion's crossexamination and her redirect examination.

3. Failure to instruct on second-degree felony-murder based 

on uncharged offense. The defendant argues that it was error to 

decline to give an instruction on felony-murder in the second 

degree based on the uncharged offense of distribution of cocaine. 

Whereas felony-murder in the first degree is predicated on a 

felony that is punishable by a sentence of life in prison, 

felony-murder in the second degree is predicated on a felony with 

a maximum sentence of less than life in prison. See Commonwealth

v. Burton, 450 Mass. 55, 57 (2007). To support a conviction of 

felony-murder in the second degree, there must be a homicide that 

occurs during the commission or attempted commission of a felony; 

the homicide must be a "natural and probable consequence" of the 

predicate felony, see Commonwealth v. Stokes, 460 Mass. 311, 315 
26

(2011); and the felony must be either "inherently dangerous" or 

"committed so that the circumstances demonstrate 'the defendant's 

conscious disregard of the risk to human life.'" Commonwealth v. 

Burton, supra, quoting Commonwealth v. Matchett, 386 Mass. 492, 

508 (1982). A defendant is entitled to an instruction on felonymurder in the second degree only if there is a rational basis in 

the evidence to support such a conviction. See Commonwealth v. 

Bell, 460 Mass. 294, 306-307 (2011). "[T]he felony on which a 

charge of felony-murder is premised may be uncharged, so long as 

the evidence supports it." Commonwealth v. Stokes, supra.

The defendant requested an instruction on felony-murder in 

the second degree predicated on the uncharged offense of "drug 

distribution." The judge denied the request on the ground that 

the evidence did not provide a rational basis for conviction of 

that offense. The predicate felony of "drug distribution," 

whether understood as distribution of a controlled substance or 

as possession with intent to distribute a controlled substance, 

requires proof of possession. See G. L. c. 94C, §§ 32A, 32B, 

32C, 32D, 32E. The only evidence supporting the defendant's 

theory of "drug distribution" was that the defendant, the joint 

venturers, and the victims all were drug dealers, and the 

defendant's statement that he went to the apartment to collect 

"like a debt" from Castro in the form of drugs that he believed 

Castro had "brought . . . from Texas." There was no evidence 
27

that controlled substances were present in the apartment, or that 

any of the intruders came into possession of the drugs the 

defendant alleges they were there to collect. In the absence of 

evidence supporting possession or constructive possession of a 

controlled substance, the jury could not permissibly have found 

that the defendant committed the felony of distribution of a 

controlled substance or possession with intent to distribute a 

controlled substance. Therefore, there was no error in the 

denial of the defendant's request for an instruction on murder in 

the second degree predicated on such offenses.11

4. Instruction on intervening cause. The defendant 

maintains also that the judge erred in declining to give a 

requested instruction on intervening cause, arguing that the 

evidence warranted a finding that Castro's death was caused by 

Cedeno's intentional delay in contacting emergency personnel.12 

 

11 In his reply brief, the defendant suggests that the 

evidence sufficed to show attempted distribution of a controlled 

substance. We need not address the merits of this argument 

because the defendant was not charged with this offense and did 

not request an instruction on the basis of this offense. See 

Commonwealth v. Stokes, 460 Mass. 311, 315 (2011). Moreover, 

even had there been error, there would have been no prejudice to 

the defendant in declining to give such an instruction where, as 

here, the defendant "was also convicted under the alternate 

theor[y] of . . . extreme atrocity or cruelty." See Commonwealth

v. Brum, 438 Mass. 103, 119 n.23 (2002).

12 This claim hinges in part on the defendant's argument 

"that Cedeno had a motive to allow Castro to bleed to death by 

delaying the 911 call in order to advance in the drug 

organization." The evidence does not support such an inference.
28

This argument is unavailing. If "death follows as a consequence 

of [an individual's] felonious and wicked act, it does not alter 

its nature or diminish its criminality to prove that other causes 

cooperated in producing the fatal result." Commonwealth v. 

McLeod, 394 Mass. 727, 744-745, cert. denied sub nom. Aiello v. 

Massachusetts, 474 U.S. 919 (1985), quoting Commonwealth v. 

Hackett, 2 Allen 136, 142 (1861). See Commonwealth v. Davis, 403 

Mass. 575, 582 (1988). "The general rule is that the intervening 

conduct of a third party will relieve a defendant of culpability 

only if such an intervening response was not reasonably 

foreseeable." Commonwealth v. Rosado, 434 Mass. 197, 203, cert. 

denied, 534 U.S. 963 (2001), quoting Commonwealth v. Niemic, 427 

Mass. 718, 727 (1998). Although "the judge was required to 

instruct the jury on any issues which could be inferred from the 

evidence," Commonwealth v. McLeod, supra at 745, he was not 

required to give a requested instruction unless competent 

evidence proffered by the defendant, viewed in a light favorable 

to him, reasonably supported such an inference.

The defendant points to evidence that, viewed favorably to 

him, he contends would support a reasonable inference that Cedeno 

delayed at least several minutes before calling 911 and 

requesting emergency medical assistance: she first made 

telephone calls attempting to reach her mother and her former boy 

 
29

friend who lived in the same apartment building as Castro.13 It 

was reasonably foreseeable, however, that there would be a delay 

before emergency medical assistance would reach Castro. At most, 

the effect of Cedeno's delay "was merely to prevent any recovery 

that might otherwise have taken place." Commonwealth v. Costley, 

118 Mass. 1, 27 (1875). It was not an intervening cause that 

then became the proximate cause of Castro's death. Because the 

evidence does not support the defendant's theory of an 

intervening cause, the judge did not err in refusing to grant the 

requested instruction. See Commonwealth v. McLeod, 394 Mass. at 

744-745.

5. Instruction that there was no evidence of accident. The 

defendant contends that the judge provided an erroneous 

instruction in connection with the charge of murder in the first 

degree based on the theory of extreme atrocity or cruelty, and 

that his counsel was ineffective for failing to object to the 

instruction. Because the defendant did not object, we review to 

determine whether any error created a substantial likelihood of a 

miscarriage of justice. See Commonwealth v. Jewett, 442 Mass. 

356, 370 (2004). Likewise, when "the defendant has been 

 

13 Viewing the evidence favorably to the defendant, Castro 

was still alive when the men left the apartment. In his 

statement to police, the defendant described Castro's condition 

as "kind of alive," and said, "Calvo was still sort of alive" 

when they left.
30

convicted of murder in the first degree, 'we consider his claim 

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 ineffectiveness of counsel.'" Commonwealth v. 

Franklin, 465 Mass. 895, 909 (2013), quoting Commonwealth v. 

Walker, 460 Mass. 590, 598 (2011). We conclude that there was no 

error. 

As to the first element of murder in the first degree on a 

theory of extreme atrocity or cruelty, the judge instructed:

"[T]he Commonwealth must prove to you beyond a reasonable 

doubt . . . that the defendant committed an unlawful 

killing. For a killing to be murder, it must be unlawful. 

An unlawful killing is a killing done without excuse. Not 

all killings are unlawful. A killing may be excused, for 

example, in cases of self-defense, defense of another, or in 

some cases, accident. The evidence in this case does not 

raise the issue of whether the killing was excused as a 

result of self-defense, defense of another, or accident."

The defendant argues that the last sentence of this instruction 

prevented the jury from considering accident to mitigate malice. 

However, a "judge's comment to the jury regarding the absence of 

accident [is] not an invasion of their fact-finding function" 

unless the issue of accident is "fairly raised" by the evidence. 

See Commonwealth v. Podkowka, 445 Mass. 692, 698-699 (2006). 

In support of his argument that the killing occurred 

accidentally, the defendant focuses exclusively on evidence 

related to the shooting itself. As the judge instructed, 
31

however, "As to the charge of murder, the Commonwealth does not 

allege that the shooting of Raphael Castro, in and of itself, was 

the act that constitutes the killing. Rather, the Commonwealth 

alleges that the shooting, along with the acts allegedly taken 

thereafter, caused Mr. Castro's death." We presume that the jury 

followed this instruction, see, e.g., Commonwealth v. Morales, 

461 Mass. 765, 784 (2012), and therefore that they relied on the 

evidence introduced regarding the intruders' conduct after the 

shooting. This evidence included that the intruders bound Castro 

with duct tape, repeatedly struck him, and left him in a locked 

room without a telephone, while he bled profusely. Evidence of 

such conduct suffices to prove malice, even if the defendant did 

not intend Castro's death, see Commonwealth v. Plunkett, 422 

Mass. 634, 637 (1996), and there is no suggestion that any of 

this conduct was accidental. Hence, because the jury were not 

called upon to decide whether the shooting itself was accidental, 

the issue of accident was not fairly raised and the judge's 

instructions were not erroneous.

6. Relief pursuant to G. L. c. 278, § 33E. Having 

carefully reviewed the entire record pursuant to our duty under 

G. L. c. 278, § 33E, we discern no reason to reduce the verdict 

of murder in the first degree or to order a new trial.

Judgments affirmed.