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SJC-11671

COMMONWEALTH vs. MARQUISE BROWN.

Middlesex. February 12, 2016. - June 17, 2016.

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

Homicide. Firearms. Constitutional Law, Admissions and 

confessions, Voluntariness of statement, Waiver of 

constitutional rights, Confrontation of witnesses.

Evidence, Admissions and confessions, Voluntariness of 

statement, Hearsay, Common criminal enterprise, Joint 

enterprise, Telephone conversation, Relevancy and 

materiality. Joint Enterprise. Telephone. Imprisonment, 

Inmate telephone calls. Practice, Criminal, Capital case, 

Motion to suppress, Admissions and confessions, 

Voluntariness of statement, Waiver, Confrontation of 

witnesses, Instructions to jury, Request for jury 

instructions.

Indictments found and returned in the Superior Court 

Department on August 6, 2009.

A pretrial motion to suppress evidence was heard by John T. 

Lu, J., and the cases were tried before Kimberly S. Budd, J.

Gail S. Strassfeld for the defendant.

Jamie Michael Charles, Assistant District Attorney

(Christopher M. Tarrant, Assistant District Attorney, with him)

for the Commonwealth.
2

SPINA, J. The defendant, Marquise Brown, was convicted of 

murder in the first degree on theories of deliberate 

premeditation and extreme atrocity or cruelty. He also was 

convicted of illegally carrying a firearm, illegal possession of 

a loaded firearm, and illegal possession of ammunition. On 

appeal the defendant asserts error in (1) the denial of his 

motion for a required finding of not guilty as to the theory of

murder by extreme atrocity or cruelty; (2) the denial of his 

motion to suppress his statements to police; (3) the admission

in evidence of accusations by police during the interrogations

of the defendant; (4) the admission of a statement of the 

codefendant1 under the joint venture exception to the hearsay 

rule; (5) the admission of recorded jailhouse telephone calls; 

(6) jury instructions on the theory of extreme atrocity or 

cruelty; and (7) jury instructions that precluded the jury from 

considering the defendant's youth as to various issues. The 

defendant claims that the cumulative effect of the various 

errors requires a new trial, pursuant to G. L. c. 278, § 33E. 

We affirm the convictions and decline to exercise our powers 

under § 33E to reduce the degree of guilt or to order a new 

trial.

1. Background. The jury could have found the following 

facts. Other details are reserved for discussion of specific 

 

1 Yessling Gonzalez, the codefendant, was tried separately.
3

issues. On the evening of June 19, 2009, the defendant, 

Yessling Gonzalez, and the victim, all friends, attended a party 

in an apartment complex in Marlborough. The party ended after a 

neighbor complained about the noise. One of the partygoers, 

Melody Downer, invited people, including the defendant and the 

victim, to her apartment, which was nearby. While at Downer's 

apartment, the defendant placed his money and marijuana on a 

table. Downer took the money, and Gus Landrum took the 

marijuana. The defendant, however, believed the victim had 

stolen the items. Later that night, at the apartment of another 

friend, the defendant accused the victim of stealing his money 

and his marijuana. The two men, both age seventeen at the time, 

fought. The altercation moved through the hallways of two 

separate floors of the building, and attracted many onlookers. 

The victim got the better of the defendant. The victim then 

left, and the defendant's friends had to restrain the defendant 

to keep him from following the victim. The defendant was angry 

and threatened to kill the victim, adding that he "didn't care 

if he spent the rest of his life in jail."

At about 1:30 P.M. the next day, June 20, the defendant and 

Gonzalez returned to the Marlborough apartment complex with the 

defendant's girl friend and some friends after going to lunch. 

Thereafter, the defendant, Gonzalez, and the victim traveled 

together in Gonzalez's silver Volvo station wagon to Callahan 
4

State Park in Framingham. Surveillance photographs showed the 

Volvo and three occupants at 1:41 P.M. heading toward the park. 

Two men who had been mountain biking in the park saw the Volvo 

enter the parking lot at the park. They described for police 

the three occupants, and a distinctive feature of the Volvo. 

Their descriptions generally matched the features and clothing 

worn by the defendant, Gonzalez, and the victim. The defendant, 

Gonzalez, and the victim approached the entrance to a trail as 

the two mountain bikers left the parking lot. The three men 

appeared friendly toward each other.

At approximately that time an employee at a nearby farm 

heard two or three gunshots. At 2:01 P.M. the Volvo appeared on 

a surveillance recording traveling away from the park with only 

two occupants. Minutes later a hiker discovered the victim's 

body on a trail. A bandana similar to one worn by Gonzalez was 

found on the trail between the victim's body and the parking 

lot. The victim sustained two gunshot wounds. The first was 

fired from behind, penetrating the right thigh, scrotum, and 

left thigh. The second and fatal shot entered the front of the 

victim's chest and perforated his heart and left lung. Gunshot 

residue on the victim's shirt indicated the second shot was 

fired from between three to five feet. The trajectory of the 

second shot, together with abrasions on the victim's right knee, 
5

suggested the victim was on his knees when the second shot was 

fired. The murder weapon never was recovered.

In recorded telephone calls from the jail where the 

defendant was being held pending trial, the defendant admitted 

to his grandmother that he was present during the killing, and 

that he knew who did it. He told his grandmother during a 

subsequent call that "the devil was in me . . . [and] told me to 

get in [Gonzalez's] car." In another telephone call the 

defendant told his girl friend that Gonzalez was the shooter.

2. Extreme atrocity or cruelty. The defendant asserts 

error in the denial of his motion for a required finding of not 

guilty as to the theory of murder by extreme atrocity or 

cruelty. In particular, he maintains that the Commonwealth 

failed to present evidence from which a jury could conclude that 

any of the Cunneen factors had been established. See 

Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). He focuses 

on the factor that the killer took pleasure in, or was 

indifferent to, the victim's suffering. Id. When deciding 

whether a judge erred in denying a motion for a required finding 

of not guilty, we view the evidence in the light most favorable 

to the Commonwealth, and we ask if any rational trier of fact 

could have found that the requisite elements of the crime had 

been proved beyond a reasonable doubt. See Commonwealth v. 

Latimore, 378 Mass. 671, 676-677 (1979).
6

Notwithstanding the defendant's contention that the medical 

examiner could not determine the order of the two gunshots, and 

her testimony that a gunshot wound to the chest could have 

produced death "instantaneous[ly]," the medical examiner 

testified that her "best estimate" was that the victim lived 

"minutes" after being shot in the chest. This was supported by 

her testimony that the gunshot wound to the chest caused 

approximately three liters of blood to flow into the victim's 

chest cavity. A jury could have inferred that death occurred 

minutes after the victim was shot in the chest.

With respect to the order of the gunshots, a jury could 

have found that the first shot passed completely through the 

victim's thighs and scrotum while he was standing. That bullet 

traveled at a slightly downward angle, or nearly parallel to the 

ground, which could explain why it was never found despite 

efforts through the use of a metal detector to locate it. The 

medical examiner testified that the bullet that passed through 

the victim's scrotum likely would have been painful. A jury 

also could have found that the victim then fell to his knees, 

bruising them, and that the defendant circled around the victim, 

looked him in the face, and fired the second bullet at close 

range into his chest.

From this evidence, and from the evidence that the 

defendant was angry at the victim for beating him the day 
7

before, the evidence of the defendant's threats to kill the 

victim even if it meant spending the rest of his life in prison, 

and the permissible inference that the defendant lured the 

victim to the park as a symbol of their restored friendship, the 

jury could have found that the defendant took pleasure in, or 

was indifferent to, the victim's suffering. See Commonwealth v. 

Anderson, 445 Mass. 195, 202 (2005) (jury could have found 

defendant was indifferent to victim's suffering based on 

inference that victim was kneeling and terrified by knowledge of 

what was coming before defendant shot him in face). The jury 

also could have found that the victim was conscious of his 

suffering. Thus, a jury could have found that the Commonwealth 

had established two of the Cunneen factors (only one is needed) 

beyond a reasonable doubt. See Cunneen, 389 Mass. at 227. See

also Commonwealth v. Linton, 456 Mass. 534, 546 (2010) (one or 

more Cunneen factor must be proved). There was no error in the 

denial of the defendant's motion for a required finding of not 

guilty.

3. Motion to suppress. The defendant asserts error in the 

denial of his motion to suppress statements he made to police on 

June 21 and June 23, 2009. He argues that he was in custody 

both times, and the Commonwealth failed to prove beyond a 

reasonable doubt that he validly waived his Miranda rights and 

that his statements were made voluntarily. When reviewing the 
8

denial of a motion to suppress, "[w]e accept the judge's 

subsidiary findings absent clear error but conduct an 

independent review of his ultimate findings and conclusions of 

law." Commonwealth v. Jiminez, 438 Mass. 213, 218 (2002). The 

defendant's focus is on the involuntariness of the Miranda 

waiver and the involuntariness of his statements. The burden is 

on the Commonwealth to establish "beyond a reasonable doubt, in 

the totality of the circumstances, that a defendant's [Miranda] 

waiver was voluntary, knowing, and intelligent, and that his 

statements were voluntary." Commonwealth v. Auclair, 444 Mass. 

348, 353 (2005). We summarize the facts found by the motion 

judge.

Early in the investigation police learned that the 

defendant and the victim had been involved in a fight on 

June 19, and that the defendant had accused the victim of 

stealing his marijuana and his cash. Police obtained a video 

surveillance recording from the New England Primate Center, 

located close to where the victim's body was found. The 

recording showed two vehicles, one, a silver Volvo, traveling to 

and from the vicinity of the shooting, before and after the time 

that the sound of gunshots had been reported to police. On June 

21, two plainclothes detectives went to the apartment where the 

defendant was living. The defendant answered the door. He had 

a black eye, and explained that he received it in a fight. The 
9

detectives asked if they could enter, and the defendant obliged. 

There were two other adults, including Gonzalez, and three 

children in the apartment. One of the detectives spoke to the 

defendant, who appeared to understand what the detective was 

saying. He did not appear to be under the influence of alcohol 

or drugs, and he agreed to go to the police station to speak to 

police. He left with two other police officers who had arrived, 

and he did not appear unsteady on his feet or demonstrate any 

difficulty walking.

One of the two detectives who originally arrived at the 

apartment remained. He spoke to Gonzalez, asking for some 

identification. Gonzalez said it was in his vehicle. When they 

went to Gonzalez's vehicle, police noted that it was a Volvo 

station wagon. He gave police some information as to his 

whereabouts at the time police believed the shooting took place.

In the meantime, the defendant was en route to the 

Framingham police station in an unmarked police vehicle. When 

they were a few blocks from the police station the defendant 

said he had to urinate very badly. As they pulled up to the 

"side of the road" the defendant urinated in his pants.2 The 

 

2 The defendant contests this finding, arguing that no 

officer testified to this. The judge's finding appears to be 

clearly erroneous, as the officer on which this finding was 

based testified that this happened as they were "pulling into 

the side road that leads to the . . . side entrance [of the 

police station]" (emphases added). However, the import of the 
10

motion judge found that "[h]e urinated in his pants because he 

had to urinate very badly, and because he was very upset, 

although not visibly so, about being questioned about the 

killing of [the victim]." Once at the station the officers 

brought the defendant to a bathroom, where he cleaned himself.

At approximately 5 P.M. the defendant was brought to an 

interview room where he was advised of his right to have the 

interview tape recorded. He declined in writing to have the 

interview recorded. He was advised of the Miranda rights, and 

he was told that he could stop the interview at any time. The 

defendant, who had prior experience with the criminal justice 

system -- having been previously arrested and prosecuted as a 

juvenile -- indicated he understood his rights and that he was 

willing to be interviewed.

The interview lasted approximately one hour. The defendant 

was "outwardly affable and cooperative although in emotional 

turmoil: he was appropriately upset about being questioned 

about the killing." The two police officers who interviewed him 

were not armed, having locked up their weapons earlier. The 

defendant took three bathroom breaks and one cigarette break 

during the interview. He denied being present when the victim 

 

judge's finding appears to be unaffected by this minor error. 

The uncontroverted testimony suggests that this occurred when 

they were very close to the police station, where the officers 

thought he could use the bathroom.
11

was shot. He consented to the taking of a buccal swab for

deoxyribonucleic acid analysis. At the end of the interview he 

was driven home, which took approximately fifteen minutes.

The next day, June 22, two mountain bikers came forward 

with information regarding three men in a Volvo station wagon 

who entered the park as the bikers were leaving. This occurred 

minutes before the shooting. One of the bikers described a 

strip of body work on the front of the Volvo that did not match 

the rest of the vehicle. A detective drove the men to the 

parking lot where Gonzalez's Volvo was parked. That biker 

identified the Volvo as the same one he saw on June 20 at 

Callahan State Park.

On June 23 three officers went to the defendant's apartment 

to ask him to go to the police station for questioning. The 

defendant had been sleeping, but answered the door. He agreed 

to go to the police station with them. They "allowed" the 

defendant to change his clothes. The defendant appeared 

cooperative and "more awake."

Upon arrival at the station, he was taken to a small 

interview room where he was advised of his Miranda rights, and

he was told that he could stop the questioning at any time. The 

defendant said he understood his rights, and signed a waiver of 

rights form. He also indicated that he did not want the 

interview recorded. Police spoke to him for about fifteen 
12

minutes, and told him there were contradictions between his 

account and what other witnesses had reported. The defendant 

yelled at police, saying he was "done talking to you guys." The 

interview ended, and a decision was made to arrest the 

defendant. He asked why he had been arrested. When told that 

it was for "murder," he said, "This is bullshit. How can you 

charge me with murder, you don't even have a gun?" This 

occurred between approximately 6:45 and 7 P.M.

We first address the question of waiver. The defendant 

claims that the interrogations on June 21 and June 23 were

custodial, and that he did not waive his Miranda rights 

voluntarily. The judge concluded that neither interrogation was 

custodial. We need not resolve the question whether the 

interrogations were custodial because the judge also found that 

the defendant waived his Miranda rights on both occasions. The 

significance of the custodial nature of an interrogation is that 

it triggers the necessity to give the Miranda warnings. See 

Commonwealth v. Kirwan, 448 Mass. 304, 309 (2007). Here, the 

warnings were given prior to questioning, and the defendant 

voluntarily, knowingly, and intelligently waived his Miranda 

rights. The defendant challenges only the voluntariness of his

waivers, which we now address.

Relevant factors to consider when deciding if a waiver of 

Miranda rights was voluntary include, but are not limited to, 
13

"promises or other inducements, conduct of the defendant, the 

defendant's age, education, intelligence, and emotional 

stability, experience with and in the criminal justice system, 

physical and mental condition, the initiator of the discussion

of a deal or leniency (whether the defendant or police), and the 

details of the interrogation, including the recitation of 

Miranda warnings." Commonwealth v. Jackson, 432 Mass. 82, 86 

(2000), quoting Commonwealth v. Mandile, 397 Mass. 410, 413 

(1986), S.C., 403 Mass. 93 (1988). With respect to the June 21 

interrogation, the defendant focuses our attention on his age 

(seventeen), the officers' alleged mistreatment of him in 

refusing to stop the vehicle to allow him to urinate, and not 

asking him if he would like to change his clothes.

The judge considered the defendant's youth, the fact that 

he was upset about being questioned about the killing, and that 

he had urinated in the vehicle. He also considered the fact 

that the defendant did not appear to be under the influence of 

alcohol or drugs, that he consented to going to the police 

station to be interviewed, that he had had some experience with 

the criminal justice system as a result of a prior arrest and 

prosecution in the Juvenile Court, that he was advised prior to 

questioning that he could stop the questioning at any time, that 

he appeared affable and cooperative at all relevant times, that 

the police officers were unarmed during the interrogation, that 
14

he requested and received three bathroom breaks and a cigarette 

break, that the interview lasted approximately one hour, that 

the defendant denied any involvement in the killing, and that 

the defendant said he understood his rights and agreed to speak 

with police. Although the defendant argues that the police 

mistreated him by not stopping the vehicle to allow him to 

urinate, the judge did not find there was mistreatment.3 Rather, 

the episode could be seen as an honest misunderstanding as to 

how badly the defendant needed to relieve himself --

particularly where the defendant urinated in the police 

officers' vehicle.

4

With respect to the June 23 interview, the defendant 

focuses our attention on alleged testimony that he tried to 

consult with his mother beforehand and that his mother wanted to 

be with him.5 Because the defendant was seventeen years old at 

 

3 There was testimony that they were less than two blocks 

away from the police station when the defendant first said he 

had to urinate "really bad."

4 There was uncontroverted testimony that the defendant did 

not complain of any discomfort at any time during the 

interrogation.

5 The record indicates that police drove the defendant and 

his mother to the police station at the request of the defendant 

or his mother. It is not clear who made the request. Police 

told the defendant and his mother that they wanted to interview 

the defendant alone. There was no further discussion on the 

matter.
15

the time, the "interested adult rule" was not applicable.6 See 

Commonwealth v. Considine, 448 Mass. 295, 297 n.7 (2007), and 

cases cited. The defendant was advised of his Miranda rights. 

He acknowledged that he understood them, and he signed a written 

waiver after indicating his willingness to speak to police. The 

judge correctly concluded that, in the totality of the 

circumstances, the defendant voluntarily waived his Miranda 

rights.

We turn to the question of the voluntariness of the 

defendant's statements. The factors considered when determining 

whether a statement was voluntary are the same as those used to 

determine whether a waiver of Miranda rights was voluntary, even 

though the inquiries are separate and distinct. See Jackson, 

432 Mass. at 85-86. No single factor is determinative, and a 

statement will not be deemed involuntary due to the mere 

presence of one or more of the factors. See Commonwealth v. 

Selby, 420 Mass. 656, 664 (1995), S.C., 426 Mass. 168 (1997). 

The defendant received, understood, and waived his Miranda 

rights on June 21 and June 23 prior to making any statement. 

There is no evidence that the police had taken an aggressive 

posture during the interrogation on June 21, or that they 

 

6 The "interested adult rule" arose in the common law. See 

Commonwealth v. A Juvenile, 389 Mass. 128, 134 (1983). We 

recently have modified the rule, on a prospective basis, to 

include seventeen year old persons. See Commonwealth v. Smith, 

471 Mass. 161, 166-167 (2015).
16

engaged in any trickery or deceit, or that they offered the 

defendant any promise of leniency. See id. The interview 

lasted approximately one hour, interspersed with three bathroom 

breaks and a cigarette break -- not a particularly lengthy 

interrogation. There is no evidence that the defendant's will 

was overborne by the questioning. Id. at 663. Moreover, the 

defendant held up under the circumstances, denying any 

involvement in the killing. See Commonwealth v. Mazariego, 474 

Mass. 42, 54 (2016). We conclude that there was no error in the 

determination that the June 21 statement was voluntary.

The June 23 interrogation was somewhat different. Police

had interviewed several witnesses between June 21 and June 23. 

At this second interrogation they told the defendant that 

details in his June 21 statement were inconsistent with details 

given by other witnesses, and that they had reason to believe 

that he had not been truthful with them about where he had been 

and what had occurred on June 20. The uncontroverted evidence 

suggests that it was the defendant, and not the officers, who 

assumed an aggressive tone. He raised his voice and repeatedly 

demanded to see the gun, and to know who had contradicted his 

account of events. After fifteen minutes, the defendant 

terminated the interview. There is no indication that any 

statement he made was involuntary.
17

Finally, after his arrest the defendant said the murder 

charge was "bullshit" because police did not "have a gun." This 

statement was not made in response to police questioning or its 

functional equivalent, see Commonwealth v. Torres, 424 Mass. 

792, 796-797 (1997), but was a spontaneous statement that did

not require suppression. See Commonwealth v. Clark, 432 Mass. 

1, 15-16 (2000). There was no error in the denial of the 

defendant's motion to suppress evidence.

4. Admission of accusations that defendant lied. The 

defendant argues that accusations by police officers during the 

interrogation of June 23 that he had lied during the 

interrogation of June 21 should not have been admitted where he 

denied those accusations. Where he denied those allegations, he 

further contends that officers testified impermissibly about 

information they obtained from witnesses and used during the 

interrogation of June 23 to bolster their accusations that he 

had lied previously on June 21, and such testimony violated his 

constitutional rights of confrontation. The defendant is 

correct. See Commonwealth v. Amran, 471 Mass. 354, 360-361 

(2015), and cases cited. Because there was no objection, we 

review under the standard of a substantial likelihood of a 

miscarriage of justice. See Commonwealth v. Wright, 411 Mass. 

678, 682 (1992), S.C., 469 Mass. 447 (2014).
18

The "information" police obtained from people they 

interviewed in the course of their investigation was not 

repeated either during the June 23 interrogation or at trial. 

Police merely told the defendant that based on the results of 

their investigation they knew he had been at Callahan State Park 

with Gonzalez on June 20, 2009. They confronted him with their 

belief, not with the details of what specific people had told 

them, or who those people where, and that is what the jury 

heard. At worst, the conclusory assertion that the defendant 

and Gonzalez were together at the park at the time of the 

shooting was cumulative of other testimony that was admitted 

properly. That other testimony includes the testimony about the 

defendant's expressed intent on June 19 to kill the victim; the 

testimony of the mountain bikers who roughly described the three 

men and the Volvo at the park shortly before the killing; the 

surveillance photographs showing the Volvo and three occupants 

approaching the park and minutes later showing the Volvo and two 

occupants leaving the park; the recorded telephone calls from 

the jail in which the defendant admitted to his grandmother that 

he was present during the killing, and in which he told his girl 

friend that Gonzalez was the shooter; and the statements to 

police that implied he knew they did not have the gun used to 

kill the victim. The jury also heard evidence about the alibi 

he had first given police during the June 21 interview. The 
19

impact of this graphic direct evidence of the defendant's 

admissions and his actions far outweigh any prejudice in the 

testimony of the police officers. The rather bland testimony in 

question was brief, and we are satisfied that it did not likely 

influence the jury's verdict. See Wright, 411 Mass. at 682.

5. Statement of Gonzalez. Gonzalez did not testify, but a 

statement he made to police was admitted in evidence, over 

objection, under the joint venture exception to the hearsay 

rule. In that statement Gonzalez said that he, the defendant, 

their girl friends, and the mother of one of the girl friends 

went to lunch on June 20. After lunch, Gonzalez said he went to 

work, where he stayed until 9 P.M. In the defendant's 

statement, he also said that they went to the restaurant and 

that Gonzalez drove them back to the defendant's girl friend's 

apartment, where he remained for the rest of the day. The 

defendant argues that Gonzalez's statement falls outside the 

joint venture exception to the hearsay rule, and that it was a

testimonial statement barred by the right of confrontation under 

the Sixth Amendment to the United States Constitution and art. 

12 of the Massachusetts Declaration of Rights. See Crawford v. 

Washington, 541 U.S. 36, 53-54 (2004); Commonwealth v. Gonzalez, 

445 Mass. 1, 9 (2005), cert. denied, 548 U.S. 926 (2006).

We agree that Gonzalez's statement was not admissible under 

the joint venture exception to the hearsay rule. The cases that 
20

affirm the admission of joint venture hearsay statements after 

the commission of the crime generally rest on direct or 

circumstantial evidence that the coventurers had planned to 

conceal the crime or their involvement in the crime. One 

example of this involves an inference that may arise from the 

telling of similar false stories. See, e.g., Commonwealth v. 

Pytou Heang, 458 Mass. 827, 854 (2011); Commonwealth v. Brum, 

438 Mass. 103, 116 (2002); Commonwealth v. Silanskas, 433 Mass. 

678, 680, 693 (2001). Here, Gonzalez's account of his doings 

between 12:30 and 2 P.M. on June 20 and the defendant's account 

of his doings during the same time period were not similar, and 

in the absence of some evidence that they specifically concocted 

stories of the parting of their ways during that period of time 

to conceal their involvement in the crime, there was no basis 

for a jury to conclude that their respective alibis were 

conceived "in furtherance of" the goal of the joint venture. 

Silanskas, supra at 693. See Mass. G. Evid. § 801(d)(2)(E) 

(2016).

The Commonwealth contends that there is an alternative 

theory for the admissibility of Gonzalez's statement. It argues 

persuasively that Gonzalez's statement was not hearsay because 

it was not offered for the truth of the matter asserted, but as 

a "foundation for later showing, through other admissible 

evidence, that [it was] false." Anderson v. United States, 417 
21

U.S. 211, 219-220 (1974). See Pytou Heang, 458 Mass. at 855; 

Mass. G. Evid. § 801(c) (2016). Both Gonzalez's and the 

defendant's statements about how they parted ways during the 

early afternoon of June 20 could be seen as false in light of 

the testimony of the mountain bikers, the video recording of 

Gonzalez's Volvo entering and leaving the park at about the time 

of the shooting, and the defendant's jailhouse telephone 

recordings. Although Gonzalez's statement was "testimonial" 

under Crawford, the confrontation clause "does not bar the use 

of testimonial statements for purposes other than establishing 

the truth of the matter asserted." Crawford, 541 U.S. at 59 

n.9. See Pytou Heang, supra at 854-855.

To the extent that the defendant asserts error in the 

admission of Gonzalez's statement as nonhearsay without a 

limiting instruction that it could not be used to establish the 

truth of the matter asserted, the claim is without merit. Trial 

counsel declined any such instruction, preferring to leave the 

matter for closing argument. The matter is deemed waived. 

There is no resulting substantial likelihood of a miscarriage of 

justice because both counsel brought out in closing that 

Gonzalez had lied, or was a liar. We conclude that the judge 

did not err in admitting Gonzalez's statement.

6. Jailhouse telephone calls. The defendant argues that 

the judge failed to evaluate the balance between relevancy and 
22

prejudice when admitting two of six jailhouse telephone calls in 

evidence. The defendant objected to the evidence. We review 

under the prejudicial error standard. See Commonwealth v. Rosa, 

468 Mass. 231, 239 (2014). Whether the probative value of 

evidence outweighs, or is outweighed by, its potential for 

prejudice is a matter committed to the discretion of the trial 

judge. Id. at 242.

The first call occurred on June 26, three days after the 

defendant's arrest, and was between the defendant and his 

father. The defendant can be heard considering his girl friend 

as an alibi witness. The defendant contends that a jury could 

be confused by the interplay between this call and the judge's 

final instructions placing the burden of proof on the 

Commonwealth. Specifically, the defendant suggests the jury 

might have believed that he had a burden to present witnesses 

but failed when his girl friend did not testify. The other call 

about which the defendant complains, the sixth telephone call in 

the series, was between him and his grandmother. He contends 

the call was too ambiguous to have any probative value, where he 

said the "devil was in me, for a little while . . . . I think 

the devil told me to get in the car."

Although juror confusion is a factor to be considered in 

weighing the potential prejudice of proffered evidence, see

Spencer, 465 Mass. 32, 53 (2013), here, the probative value of 
23

the evidence in this case, in the context of other evidence, 

strongly suggested that the defendant had given police a false 

alibi and enlisted his girl friend to support his effort. This 

was highly relevant evidence of consciousness of guilt that far 

outweighed any potential prejudice. See Commonwealth v. Mejia, 

88 Mass. App. Ct. 227, 237 (2015); Commonwealth v. Mitchell, 20 

Mass. App. Ct. 902, 902 (1985).

The defendant's musing in the sixth call about being 

possessed by the devil was highly probative of the issue of his 

knowledge, both before and during the shooting, that he was 

participating in a criminal act. This also was relevant as 

rebuttal evidence to his claim at trial that, although he was 

present during the commission of the crime, he did not go to the 

park with any criminal intent and did not participate knowingly 

in a joint criminal venture with Gonzalez.

With respect to the defendant's claim that the judge failed 

to weigh the probative value against the potential prejudice of 

this evidence, the record belies the claim. The judge discussed 

the matter with counsel and redacted certain portions of the six 

telephone calls to eliminate juror confusion or prejudice. 

Trial counsel acknowledged that the judge's efforts had met his 

concerns. We are satisfied that the judge properly exercised 

her discretion in this regard, and that admission of the 

telephone calls was not error. See Rosa, 468 Mass. at 242.
24

7. Jury instructions. The defendant asserts error in two 

jury instructions. The first is the judge's declining to 

instruct the jury that they could consider the defendant's youth 

on the elements of intent, knowledge, and extreme atrocity or 

cruelty, and on the issue of voluntariness of his statements. 

The defendant had requested an instruction that would have told

the jury that "there was evidence that [the defendant] was a 

juvenile and therefore had less or a diminished capacity than an 

adult for making critical judgments." The requested instruction 

directed the jury to find and apply diminished capacity to their

determination of the question of the Commonwealth's burden of 

proving knowledge, intent, and the Cunneen factors insofar as 

they are elements of the crime of murder. See Cunneen, 389 

Mass. at 227.

Whether a defendant, because of youth, was incapable of 

forming the requisite intent, or possessing the requisite 

knowledge, or committing murder with extreme atrocity or 

cruelty, is a question of fact. In Commonwealth v. Okoro, 471 

Mass. 51, 65-66 (2015), we said that the trial judge correctly 

excluded evidence that it was impossible for a juvenile to 

formulate the requisite intent to commit murder. Here, the

defendant's requested instruction would have gone even further

than what the defendant in Okoro was not allowed to do. The 

proposed instruction in this case essentially directed the jury 
25

to accept, as a matter of law, that all juveniles lack the

capacity to form the requisite criminal intent to commit murder. 

The defendant's requested instruction was not a correct 

statement of law, and it was properly rejected.7

In Okoro, 471 Mass. at 66, we affirmed the trial judge's 

ruling that permitted the juvenile defendant to present expert 

testimony "regarding the development of adolescent brains and 

how this could inform an understanding of this particular 

juvenile's capacity for impulse control and reasoned decisionmaking on the night of the victim's death" (emphasis added). 

Here, there was no comparable factual development of the record, 

by expert testimony or other evidence of mental impairment 

specific to the defendant at the time of the killing, and there 

was no evidence regarding adolescent brain development. Compare 

Commonwealth v. Fitzmeyer, 414 Mass. 540, 549 (1993) (absent 

evidence that defendant's medical problems resulted in condition 

that diminished his knowledge of what he was doing or impaired 

his ability to control his actions, defendant not entitled to 

instruction that evidence of his mental impairment at time of 

 

7 The defendant's attempt to apply the United States Supreme 

Court's holding in Miller v. Alabama, 132 S. Ct. 2455 (2012), is 

unavailing. The Court's focus was on the prohibition against 

cruel and unusual punishment under the Eighth Amendment to the 

United States Constitution as it applied to sentencing and 

punishment of juveniles. The Supreme Court did not discuss case 

law or statutory law addressing intent, knowledge, or deliberate 

premeditation as elements of a crime. Id. at 2464.
26

crime should be considered in determining his culpability for 

murder in first degree). Because there was no evidence as to 

the defendant's circumstances with respect to neurological 

issues and brain development, he was not entitled to the type of 

instruction that we approved in Okoro.

There is no merit to the defendant's argument that the 

judge prevented the jury from considering his youth on the issue 

of the voluntariness of his statements. The judge gave a humane

practice instruction in which he told the jury that the 

voluntariness of any statement made by the defendant must be 

determined from the "totality of the circumstances." This was a 

correct statement of the law. See Commonwealth v. Cruz, 373 

Mass. 676, 688-689 (1977). Moreover, trial counsel repeatedly 

emphasized the defendant's youth during closing argument, 

focusing on his being only seventeen years of age no fewer than 

six times. There was no error.

There also was no error in the judge's instruction that 

"police are under no legal obligation to give people seventeen 

years or older an opportunity to have a parent accompany him or 

her in a police interview." This was a correct statement of the 

law at the time of trial.8 See Commonwealth v. Smith, 471 Mass. 

 

8 The Legislature changed the age until which a person will 

be treated as a juvenile from seventeen to eighteen, by enacting 

St. 2013, c. 84, §§ 7-27, which amended various sections of 

G. L. c. 119 (proceedings against delinquent children), 
27

161, 165-167 (2015). The instruction did not preclude the jury 

from considering the defendant's age when determining whether 

his statements were made voluntarily. As noted above, trial 

counsel argued the point forcefully in his closing argument.

The second assignment of error in the jury instructions 

concerns the instruction on the theory of extreme atrocity or 

cruelty. The defendant faults the judge for declining to 

instruct the jury that they must be unanimous as to at least one 

of the Cunneen factors in order to find the defendant guilty of 

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

cruelty. See Cunneen, 389 Mass. at 227. We expressly have 

rejected the necessity of such an instruction, see Commonwealth

v. Morganti, 455 Mass. 388, 407 (2009), S.C., 467 Mass. 96 

(2014), and the defendant has offered nothing that persuades us 

otherwise. The judge instructed the jury conformably with the 

Model Jury Instructions on Homicide (1999), which were 

applicable at that time.

There is no merit to the defendant's assertion that the 

trial judge erred by failing to instruct the jury that the 

Commonwealth must prove that the defendant intended his actions 

to be extremely atrocious or cruel. The defendant did not 

request such an instruction, so our review is limited to a 

 

effective September 18, 2013. The defendant made his statements 

in June, 2009. The statutory amendment did not apply to him. 

See Commonwealth v. Smith, 471 Mass. 161, 165-167 (2015).
28

determination whether any error created a substantial likelihood 

of a miscarriage of justice. See Wright, 411 Mass. at 682. We 

have never said that a defendant must be shown to have had such 

an intent. See Commonwealth v. Akara, 465 Mass. 245, 260 

(2013); Commonwealth v. Szlachta, 463 Mass. 37, 47 (2012), 

citing Cunneen, 389 Mass. at 227. In any event, we need not 

decide the question, as the defendant also was convicted of 

murder in the first degree on the theory of deliberate 

premeditation.

8. Review under G. L. c. 278, § 33E.

9 We have reviewed the 

briefs and the entire record and discern no reason to reduce the 

degree of guilt or grant a new trial pursuant to our powers 

under G. L. c. 278, § 33E.

Judgments affirmed.

 

9 The parties did not brief the question, which we leave for

another day, whether a juvenile convicted of murder in the first 

degree is entitled to plenary review under G. L. c. 278, § 33E, 

and is subject to the gatekeeper provision of that statute; or 

whether such a defendant is not entitled to plenary review but 

is entitled to a right of appeal from the denial of all motions 

for a new trial. Cf. Commonwealth v. Angiulo, 415 Mass. 502, 

507-510 (1993) (unique severity of mandatory life sentence 

without possibility of parole for conviction of accessory to 

murder in first degree justifies treatment under § 33E even if 

crime is not capital offense).