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SJC-11448

COMMONWEALTH vs. ELVIN VALENTIN.

Bristol. January 12, 2016. - May 20, 2016.

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

Homicide. Intoxication. Evidence, Prior misconduct, Relevancy 

and materiality. Practice, Criminal, Capital case, 

Argument by prosecutor, Request for jury instructions, 

Instructions to jury.

Indictments found and returned in the Superior Court 

Department on September 28, 2009.

The cases were tried before Thomas F. McGuire, Jr., J.

John F. Palmer for the defendant.

Rachel W. van Deuren, Assistant District Attorney, for the 

Commonwealth.

DUFFLY, J. The defendant was convicted by a Superior Court 

jury of murder in the first degree in the shooting deaths of 

Nettie Becht and Luis Diaz, on theories of premeditation and 

extreme atrocity or cruelty. On appeal, the defendant asserts 

error in the judge's decision to permit the introduction in 
2

evidence of weapons and related items that he lawfully owned and 

that were not alleged to have been used in the shooting. The 

defendant asserts error also in the denial of his request that 

the jury be instructed on voluntary manslaughter based on a 

theory of reasonable provocation, and in the instruction that 

was given that the jury must "find" the defendant was 

intoxicated. He also challenges portions of the prosecutor's 

closing argument in several respects.

Concluding that there was no error, we affirm the 

defendant's convictions and decline to exercise our authority 

under G. L. c. 278, § 33E, to grant a new trial or reduce the 

verdicts to a lesser degree of guilt.

1. Background. a. Commonwealth's case. We recite the 

facts the jury could have found, reserving certain facts for 

later discussion. The defendant and Becht lived in different 

apartments in the same housing complex in New Bedford. They had 

been involved in an intermittent relationship that spanned a 

four-year period; during that period, the defendant and Becht 

occasionally spent the night at each other's apartments and the 

defendant had loaned Becht money. According to the defendant, 

Becht had "cheated" on him and he felt that she was "using" him. 

Becht ended the relationship prior to the shootings.

Becht was treated at a hospital on the night before she was 
3

killed.1 When the defendant attempted to visit her there, she 

told him that she did not want to see him. The next day, August 

14, 2009, at approximately 8 P.M., the defendant went to the 

home of a friend of Becht, after Becht failed to return the 

numerous telephone calls he had made throughout the day. Becht 

came out of the house and spoke with the defendant while they 

were standing outside the house. She told him that she had 

started a relationship with someone else and that she was "done" 

with him. The defendant responded by saying, "[W]e'll see, 

we'll see," and told her not to do it "in [his] face." He left 

and returned to his apartment.

Later that night, at approximately 10 P.M., Becht's friend 

drove her to a bus station to pick up Luis Diaz, a man Becht had 

met on a "chat line."2 Becht had spoken with Diaz on the 

telephone, but the two had not met in person. After picking 

Diaz up from the bus station, the friend drove Diaz and Becht to 

Becht's apartment and left. At that time, the defendant was in 

his apartment in the same apartment complex, sitting in his 

kitchen with the lights turned off. He saw Becht and Diaz from 

 

1 The reason for the hospitalization was unrelated to the 

events leading to her death, and the judge excluded it from 

evidence.

2 A witness described the "chat line" as a telephone chat 

line. A chat line makes it possible for multiple people to 

communicate with one another at the same time by telephone call, 

and is often used as an alternative to online dating. See 

Evenstad v. Carlson, 470 F.3d 777, 780 (8th Cir. 2006).
4

his window as they walked toward her apartment. He armed 

himself with a loaded nine millimeter semiautomatic pistol, 

which he subsequently told police that he kept readily 

accessible for protection because he recently had been the 

victim of a robbery.

The defendant emerged from his apartment carrying the 

loaded gun. Becht saw that the defendant was armed and 

screamed, "No, no." The defendant first pointed the gun at Diaz 

and fired; he then pointed the gun at Becht and fired several 

more shots. When Diaz tried to get up after he had been shot, 

the defendant said, "What? You not ready to die yet?" and again 

fired the gun at Diaz. In all, the defendant fired ten shots. 

Police and paramedics arrived within minutes of the shootings; 

Diaz was still breathing but Becht was not. Both victims were 

taken by ambulance to a nearby hospital where, later that night, 

they were pronounced dead. Each died of gunshot wounds to the 

torso.

The defendant returned to his apartment and changed his 

clothes and shoes.3 He put the gun in a closet in the living 

room and left the apartment. Immediately after the shootings, 

the defendant spoke to his son on his cellular telephone, and 

 

3 Testing of deoxyribonucleic acid samples taken from the 

defendant's shoes recovered from his apartment, the gun used to 

shoot the victims, and the doorknob on his apartment door 

established that Becht's blood was on each item.
5

said, "Hey, I killed Netti because I find her with another guy 

and I killed that other guy, too." Shortly thereafter, a police 

officer noticed the defendant walking away from the crowd of 

people that had gathered. The officer followed the defendant, 

who was still talking on his cellular telephone, and ordered him 

to stop. When the officer approached, the defendant said, "Yes, 

yes. I'm the one who did it." The officer read the defendant 

his Miranda rights, in English, and handcuffed him.4 The 

defendant indicated that he understood his rights. Before the 

officer had asked any questions, the defendant asked, "Is the 

lady dead?" When the officer responded that he did not know, 

the defendant asked, "How about the guy? Is he dead?" The 

defendant's tone was "casual" and without emotion.5

As the officer spoke to the defendant, the crowd of people 

that had gathered at the scene of the shootings began angrily to 

approach the defendant. The officer placed the defendant in his 

police cruiser for the defendant's safety. As they sat in the 

cruiser, the defendant told the officer that he was concerned 

the crowd would burn his automobile. When the officer asked why 

he had that concern, the defendant replied that it was because 

 

4 The officer asked the defendant whether he spoke and 

understood English, and the defendant said that he did. The 

defendant also indicated that he spoke Spanish.

5 Prior to trial, the defendant filed a motion to suppress 

his various statements to police. The motion was denied, and, 

on appeal, the defendant does not challenge that denial.
6

he had shot the victims. The officer asked the defendant why he 

had done so, and the defendant responded that he had told Becht 

not to cheat on him. The defendant told another officer that 

the gun used in the shootings was located in his apartment.6

Police transported the defendant to the police station, 

where he agreed to be interviewed. In a video-recorded 

interview, conducted in English, the defendant explained that he 

had been in a relationship with Becht for about four years, but 

that she wanted to date other people.7 The defendant stated that 

he had been sitting in his kitchen with the lights turned off, 

drinking whiskey, as he waited for Becht to return to her 

apartment. He said that he had consumed one-half of a bottle of 

whiskey in the hours before the shootings, and went "crazy" when 

he saw Becht walk by his apartment with Diaz because he had been 

drinking.8 When asked whether he had made the decision to shoot 

 

6 The gun was found in a closet in the defendant's living 

room.

7 Prior to this interview, an off-duty bilingual officer 

read the defendant his Miranda rights, this time in Spanish. 

The defendant stated that he did not want to speak to the 

officers and that he wanted an attorney. Then, unprompted, the 

defendant told the officer that, earlier that night, he had 

sought out Becht at her friend's house to ask about the status 

of their relationship, and Becht had said that it was over 

between them and that she was seeing someone else. The 

defendant told the officer that he had said to Becht, "We'll see 

about that." He also said that he had consumed three to four 

glasses of whiskey as he waited for Becht to return home.

8 A half-empty bottle of whiskey was found in the 
7

Becht and Diaz when he walked out of the apartment with his gun, 

the defendant said, "Well, yeah, I think that the alcohol made 

me do the shooting."

b. Defendant's case. The primary defense at trial was 

that the defendant's intoxication warranted convictions of a 

lesser offense than murder in the first degree. The defendant 

called a forensic psychiatrist as an expert witness to explain 

generally the effects of alcohol intoxication.9 In addition, one 

police officer testified that he smelled the odor of alcohol 

emanating from the defendant as they sat in the police cruiser 

immediately after the defendant was arrested.

2. Discussion. a. Admission of evidence of other 

weapons. The defendant argues that he was prejudiced by the 

Commonwealth's improper introduction of evidence concerning his 

ownership of weapons other than the weapon used in the 

shootings, which the defendant categorizes as evidence of prior 

bad acts. The Commonwealth introduced testimony that the 

defendant owned several handguns, a rifle, a shotgun, several 

boxes of ammunition, gun magazines, a National Rifle Association 

certificate, and a buck knife. Photographs of these items were 

introduced in evidence, as were the boxes of ammunition and 

 

defendant's apartment.

9 The expert had not reviewed any of the evidence in the 

case and had not spoken with the defendant.
8

other items themselves. The defendant did not object to the 

introduction of the testimony or this evidence. On crossexamination, the defendant elicited testimony establishing that 

he had been required to satisfy specific criteria to obtain 

licenses for the firearms. The prosecutor also referred to some 

of the weapons evidence in the opening statement.10 Because the 

defendant did not object, we review his claim to determine 

whether the evidence should not have been admitted and, if it 

was admitted erroneously, whether the admission created a 

substantial likelihood of a miscarriage of justice.

We have cautioned against the admission of evidence of 

weapons or firearms where those items "definitively could not 

have been used in the commission of the crime" charged. 

Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012). We have 

expressed concern in such circumstances that the introduction of 

evidence of firearms unrelated to the crime charged "creates a 

risk that the jury will use the evidence impermissibly to infer 

that the defendant has a bad character or a propensity to commit 

the crime charged." Commonwealth v. McGee, 467 Mass. 141, 156 

(2014). We also have recognized, however, that there may be a 

 

10 The prosecutor told the jury, "You will hear the choices 

that the defendant made over that evening. First, he had the

choice of which gun he was going to use. He had a .357, he had 

a .45 caliber, he had a .40 caliber; all handguns. He had a .12 

gauge shotgun, and he had a Colt 223 rifle. However, this 

defendant chose his Smith & Wesson, a nine millimeter, loaded 

with ten rounds in the magazine."
9

permissible purpose for the admission of such weapons-related 

evidence, and have "not unconditionally disapproved" of it. 

Commonwealth v. Barbosa, supra at 122-123, and cases cited. The 

critical questions are whether the weapons-related evidence is 

relevant and, if so, whether the probative value of the evidence 

is substantially outweighed by its prejudicial effect. See 

Commonwealth v. McGee, supra.

Here, it is undisputed that none of the weapons-related 

evidence that the defendant challenges was relevant to the 

crimes charged. The defendant kept the gun used in the 

shootings loaded and accessible, apparently not locked in his 

gun safe. The police recovered that gun from a closet in the 

defendant's living room; the defendant has not challenged its 

admission, nor has he challenged the introduction of a box of 

ammunition from which ten bullets apparently had been used to 

load the gun used in the shootings. That box of ammunition and 

the other weapons and ammunition were found locked in a gun safe 

in the defendant's bedroom.

The Commonwealth contends that the weapons evidence 

properly was admitted to show that the shootings were 

premeditated. In the circumstances here, we do not agree. 

Unlike the scenario presented in Commonwealth v. Tassinari, 466 

Mass. 340, 352-353 (2013), there was no evidence in this case 

that the defendant "deliberately chose" the murder weapon from a 
10

cache of other available weapons, and there was no evidence 

that, on the night of the shootings, the defendant even unlocked 

the safe where the other weapons were stored. Further, the 

Commonwealth's theory at trial was that the defendant decided to 

kill Becht because she had told him earlier that day, as well as 

the night before, that she no longer wanted to be involved in a 

relationship with him. There is no suggestion that the 

defendant acquired or handled any of his other weapons at some 

point after Becht rebuffed him. The fact that the defendant 

lawfully owned multiple firearms and a buck knife, which he kept 

securely locked in a gun safe, bears no relevance to whether he 

deliberated before he shot Becht and Diaz. Contrast 

Commonwealth v. Carney, 472 Mass. 252, 256 (2015) (evidence 

defendant owned and was familiar with firearms relevant to show 

shooting was not accident as defendant claimed).

Likewise, we conclude that the weapons evidence is not 

relevant to the question whether the murder was committed with 

extreme atrocity or cruelty. In total, the defendant fired ten 

shots at the two victims, and both died of multiple gunshot 

wounds. The Commonwealth contends that the weapons evidence 

permitted the jury reasonably to infer that the defendant was 

familiar with weapons, and that, based on that inference, the 

jury could draw the further inference that the disproportionate 

means the defendant used to inflict death was not the result of 
11

an unskilled shooter, but rather the result intended by an 

experienced shooter. Such a "piling of inference upon 

inference" is improper in this context. Cf. Commonwealth v. 

Kelly, 470 Mass. 682, 693 (2015). The defendant made no claim 

at trial that the multiple bullets fired, or the shootings 

themselves, were the result of a lack of familiarity with guns 

or ignorance regarding the damage multiple gunshots could 

inflict. Nothing about the defendant's skill level as a shooter 

or familiarity with guns was related to any of the issues at 

trial. Cf. Commonwealth v. Anderson, 448 Mass. 548, 560 (2007) 

(testimony that defendant was skilled with knife "tended to 

prove that [he] possessed the means and ability to commit the 

crime, thus making it relevant to whether he was the killer"). 

Because the evidence of the defendant's lawful ownership of 

other firearms, ammunition, and a buck knife was not relevant to 

the jury's determination whether the shootings were committed 

with extreme atrocity or cruelty, the evidence should not have 

been admitted.

Even if we were to agree, as the Commonwealth argues, that 

it had some "tenuous relevancy" to show that the defendant "was 

acquainted with weapons and was able to use them," that 

probative value is substantially outweighed by its prejudicial 

effect. See Commonwealth v. Toro, 395 Mass. 354, 358 (1985). 

The Commonwealth contends also that because the defendant 
12

lawfully owned the weapons and ammunition, he cannot argue that 

evidence of his ownership was prejudicial "bad act" evidence. 

The rules of evidence, however, do not contemplate only the 

exclusion of evidence relating to unlawful acts. A trial judge 

"may exclude relevant evidence if its probative value is 

substantially outweighed by a danger of . . . unfair prejudice." 

See Mass. G. Evid. § 403 (2016). In addition, "[e]vidence of a 

crime, wrong, or other act is not admissible to prove a person's 

character in order to show that on a particular occasion the 

person acted in accordance with the character." See Mass. G. 

Evid. § 404(b)(1) (2016).

Accordingly, our focus is on whether the weapons evidence 

"creates a risk that the jury will use the evidence 

impermissibly to infer that the defendant has a bad character or 

a propensity to commit the crime charged." See Commonwealth v. 

McGee, supra at 156. As the defendant argues, the evidence of 

his ownership of multiple firearms portrayed him as someone who 

was likely to commit murder, the crime with which he was 

charged, and should not have been admitted.

The improperly admitted evidence, however, did not create a 

substantial likelihood of a miscarriage of justice. The 

evidence against the defendant was strong. There was a vast 

quantity of evidence that he was the shooter and shot both 

victims with the firearm recovered by police, and no evidence to 
13

the contrary. There were several witnesses to the shootings 

and, immediately after the shootings, the defendant confessed 

and explained his motive to police. In this context, the 

evidence of the defendant's other weapons would have been 

"insignificant" in the jury's thinking. See Commonwealth v. 

Toro, supra at 359. Although the judge did not provide a 

limiting instruction on the use of the unrelated weapons 

evidence, defense counsel effectively cross-examined the police 

witness who testified about the other weapons in order to 

establish that the defendant lawfully owned them, and thus that 

he had satisfied the required criteria for a firearms license, 

and that the other weapons had not been used in the crime 

charged. This mitigated some of the danger that the jury would 

draw a prejudicial inference from the evidence. In sum, the 

jury's verdicts would not have been different had the improperly 

admitted weapons evidence been excluded.

b. Prosecutor's closing argument. The defendant asserts 

that several aspects of the prosecutor's closing argument were 

improper. He claims that the prosecutor suggested, without 

evidentiary basis, that the defendant was "lying in wait" for 

Becht to return on the night of the shootings, and that she was 

"begging" for her life as the shots were being fired. The 

defendant also contends that the prosecutor injected her own 

view of the witnesses' credibility into her closing, and 
14

improperly asked the jury to put themselves in the place of the 

defendant. Because the defendant did not object to any portion 

of the closing argument at trial, we review to determine whether 

the improprieties, if any, posed a substantial likelihood of a 

miscarriage of justice. See Commonwealth v. Mejia, 463 Mass. 

243, 253-254 (2012). We discern no error.

"Prosecutors must limit the scope of their closing 

arguments to facts in evidence and the fair inferences that may 

be drawn therefrom." Commonwealth v. Guy, 441 Mass. 96, 110 

(2004). Here, there was evidence that the defendant was in his 

apartment, sitting in the dark, waiting for Becht to come home, 

and that he had a loaded gun nearby. The prosecutor's statement 

that the defendant was "lying in wait" and other similar remarks 

were fair arguments grounded in the evidence, and were related 

to the issue of premeditation. There also was testimony that 

Becht yelled, "No, no," as the defendant shot at her. The 

prosecutor's argument that Becht was "begging for her life" was 

not improper in light of this evidence, and was relevant to the 

Commonwealth's theory of extreme atrocity or cruelty. See 

Commonwealth v. Taylor, 455 Mass. 372, 383 (2009), quoting 

Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) ("A prosecutor 

may argue 'forcefully for a conviction based on the evidence and 

on inferences that may reasonably be drawn from the evidence").

The defendant also contends that the prosecutor improperly 
15

injected her own view of the witnesses' credibility into her 

closing in discussing the issue of intoxication. In reviewing 

this claim, we consider the context in which the prosecutor made 

her remarks. At trial, defense counsel elicited testimony from 

a police officer that the police had found a half-empty bottle 

of whiskey in the defendant's apartment. In his closing 

argument, defense counsel drew attention to the presence of the 

whiskey bottle, stating, "As a matter of fact, when [the 

detective] testified, and [the prosecutor] was introducing a 

number of items, you didn't see him pick up that bottle and 

introduce it. I did. I did. They want this [half-empty bottle 

of whiskey] to be nonexistent. It's not. It exists. And you 

can't disregard it."

The prosecutor began her closing argument by responding to 

defense counsel's argument. She stated:

"Defense counsel made mention [of] the fact that he 

had to put [the half-empty whiskey bottle] into evidence 

through [the detective]. Well, do you remember the 

testimony of [the detective]? He wasn't the one who found 

it. Why would it go in through him? [A State police 

trooper] was the person who found the alcohol, who hadn't 

testified yet. So is that what you think, ladies and 

gentlemen? That [we] have been trying to keep things from 

you during the course of this trial? We've put well over a 

hundred exhibits before you. I'm not asking you to ignore 

the alcohol at all."

This argument was not improper, but, rather, was in direct 

response to the defendant's suggestion that the Commonwealth 

sought to hide evidence that a partially consumed bottle of 
16

whiskey had been recovered from the defendant's home. See 

Commonwealth v. Lewis, 465 Mass. 119, 130 (2013) ("prosecutor 

may address a particular point in defense counsel's closing 

argument").

Likewise, the prosecutor's final statement to the jury 

"ask[ing]" them, "on [her] behalf, and on the behalf of [her coprosecutor], and on behalf of the Commonwealth, that [they] find 

this defendant . . . guilty of . . . murder in the first degree" 

was not improper. The phrase was a "rhetorical flourish" that 

the prosecutor used to argue that the jury should render guilty 

verdicts. "[W]e presume the jury 'know that the prosecutor is 

an advocate' . . . and that they recognize arguments as 

'advocacy and not statements of personal belief'" (citations 

omitted). See Commonwealth v. Mejia, supra at 254.

The defendant's final contention is that "the prosecutor 

improperly urged the jurors to rely on their own experiences 

with intoxication, instead of the evidence, in evaluating 

the . . . intoxication defense." The prosecutor stated,

"Use your common sense and life experience. . . . 

Certainly you guys over your various years have seen people 

intoxicated, might have been intoxicated yourself. You 

know what the reaction is. You know what outward signs you 

might have had. Would you have the capability to do this? 

To walk up calmly, confidently, deliberately, put up a gun, 

hold your hand straight, shoot ten times?"

Inviting the jurors to draw upon their own life experience and 

common sense is permissible. See Commonwealth v. Lao, 460 Mass. 
17

12, 22 (2011) ("request that jury apply their common sense was 

proper"). Although the suggestion that the jury put themselves 

in the place of the defendant would have been better not made, 

here the statement was made in the context of asking the jurors 

to consider their own life experiences and common sense in 

evaluating the effect of intoxication. Cf. Commonwealth v. 

Pontes, 402 Mass. 311, 318 (1988) (asking jury to put themselves 

in place of victim's father not improper where, in context, it 

was attempt to suggest father acted reasonably). Contrast 

Commonwealth v. Bizanowicz, 459 Mass. 400, 420 (2011) ("jury 

should not be asked to put themselves 'in the shoes' of the 

victim, or otherwise be asked to identify with the victim"). 

There was no error in the prosecutor's closing argument.

c. Jury instruction on voluntary manslaughter. At the 

close of all the evidence, the defendant orally requested an 

instruction on voluntary manslaughter based on the theory that 

the defendant killed the victims in the heat of passion because 

he was reasonably provoked when he saw Becht with Diaz on the 

night of the shooting. Concluding that the evidence did not 

warrant a finding of reasonable provocation, the judge denied 

the request and the defendant objected.

The defendant contends that the judge should have 

instructed the jury on voluntary manslaughter because the 

defendant still considered Becht to be his "girl friend" at the 
18

time of the shootings. The defendant acknowledges that Becht 

had told him that their relationship was over and that she was 

dating other people, but points to his statement that he had 

warned her "[not to] do it in [his] face." The defendant 

maintains that he went "crazy" when he saw Becht walking with 

Diaz, and thus that the instruction was warranted.

Where an instruction on voluntary manslaughter is 

requested, a trial judge should so instruct the jury if any view 

of the evidence would warrant a finding that the unlawful 

killing arose not from malice, but "from . . . sudden passion 

induced by reasonable provocation, sudden combat, or excessive 

force in self-defense." See Commonwealth v. Avecedo, 446 Mass. 

435, 443 (2006), quoting Commonwealth v. Carrion, 407 Mass. 263, 

267 (1990). Reasonable provocation means that a reasonable 

person would have been provoked "to lose his self-control in the 

heat of passion," and that person would not have had time to 

"cool off" before the killing (citations omitted). See 

Commonwealth v. Avecedo, supra at 442-443. Because the standard 

is both objective and subjective, the jury must be able to infer 

from the evidence not only that a reasonable person would have 

been so provoked, but also that the defendant was in fact 

provoked and that he or she did not have sufficient time to cool 

off in the period that elapsed between the provocation and the 

homicide. See id. at 443; Commonwealth v. Groome, 435 Mass. 
19

201, 220 (2001). We "view the evidence in the light most 

favorable to the defendant to determine whether an instruction 

on reasonable provocation was warranted." Commonwealth v. 

Avecedo, supra.

Here, the evidence introduced at trial would not have 

permitted the jury to find reasonable provocation. Even 

assuming that the defendant still believed that Becht was his 

girl friend on the day of the shootings, the facts do not 

support a finding of reasonable provocation as defined in our 

case law. Viewed in the light most favorable to the defendant, 

he and Becht had been involved in an occasional romantic 

relationship, which Becht had ended several hours prior to the 

shootings. Moreover, on the night before the shootings, Becht 

had rebuffed the defendant when he tried to visit her at the 

hospital. The defendant thus had no reason to expect that Becht 

would not become romantically involved with other people, and 

has no basis upon which to claim that he was reasonably provoked 

when he saw Becht with Diaz. See Commonwealth v. Benson, 453 

Mass. 90, 95 (2009) ("provocation occurs only when an action of

the victim triggers a sudden loss of self-control in the 

defendant"). Contrast Commonwealth v. Andrade, 422 Mass. 236, 

238 (1996) (evidence supported inference that defendant observed 

spouse with another man, thus confirming his suspicion of 

unfaithfulness).
20

Even were we to assume that the defendant reasonably could 

have expected fidelity from Becht, the evidence would not have 

permitted the jury to find that the defendant was reasonably 

provoked. The defendant did not come upon Becht and Diaz 

engaged in romantic or sexual activity; he observed them merely 

walking together towards her apartment. Compare Commonwealth v. 

Smith, 460 Mass. 318, 325 (2011) (defendant discovered victim, 

whom he had been dating for six weeks, engaging in oral sex with 

another man). On these facts, the jury could not infer that a 

reasonable person would have become sufficiently provoked to 

shoot and kill two people. See Commonwealth v. Benson, supra. 

There was no error in the denial of the defendant's request for 

a manslaughter instruction.

d. Jury instruction on intoxication. In her final charge, 

the judge properly instructed the jury on intoxication, and the 

defendant does not challenge that instruction. After a few 

hours of deliberation, the jury submitted a note with a question 

concerning the "subcategories" of murder. After a sidebar 

discussion, neither the judge nor counsel were able to determine 

precisely what information the jury sought. With counsel's 

approval, the judge decided to "go over the instructions again, 

perhaps in a more summary fashion."

In his summary review of the instructions, after describing 

the elements of the various degrees and theories of murder, the 
21

judge instructed,

"Intoxication does not necessarily excuse murder. The 

question is did the intoxication prevent the defendant from 

forming the intent or from having knowledge of the 

circumstances giving rise to the plain and strong 

likelihood of death. So you can consider any believable 

evidence -- if you find that the defendant was intoxicated

from the consumption of alcohol, you can consider that 

evidence on several points. . . . And then you can also 

consider any intoxication, if you find intoxication, on the 

issue of whether the defendant acted in a cruel or 

atrocious manner in causing the death of the 

deceased. . . . So I'll just repeat. . . . So the 

intoxication bears on, if you find intoxication, you can 

consider it in evaluating the defendant's intention and the 

defendant's knowledge of the circumstances"

In total, the judge stated three times that if the jury found 

the defendant was intoxicated, they could consider his 

intoxication when evaluating both theories of murder in the 

first degree.

The defendant argues that the instruction that the jury had 

to "find" intoxication improperly shifted the burden of proof 

from the Commonwealth to him. Because the defendant did not 

object at trial, we review to determine whether there was a 

substantial likelihood of a miscarriage of justice. Although we 

have observed that this "finding" language is disfavored in a 

jury instruction, it "is not in error when the charge, read as a 

whole, clearly places the burden on the Commonwealth to prove 

each element of the offense beyond a reasonable doubt." 

Commonwealth v. Petetabella, 459 Mass. 177, 192 (2011), citing 
22

Commonwealth v. Cundriff, 382 Mass. 137, 153 (1980), cert. 

denied, 451 U.S. 973 (1981). Moreover, our concern with the 

"finding" language is most acute when used in conjunction with 

"complete, malice-negating defenses," such as self-defense, 

accident, or necessity. See Commonwealth v. Waite, 422 Mass. 

792, 805 (1996), and cases cited. Because "intoxication and 

impairment do not negate premeditation, but are mere subsidiary 

facts that the jury consider in sifting the circumstantial 

evidence as to [the defendant's] mental state . . . , there is 

no particular standard of proof that 'finding' language can 

impermissibly alter."11 Id. at 805-806.

Here, as the defendant concedes, the instructions provided 

to the jury before they began deliberating were proper. 

Although the judge used the disfavored "finding" language in his 

summary reiteration of the instructions, the use of this 

language did not shift the burden of proof to the defendant. 

When viewed as a whole, the instructions clearly placed the 

burden of proof on the Commonwealth to prove each element of 

 

11 We decline the defendant's invitation to reconsider our 

line of cases distinguishing "subsidiary facts" from facts that 

bear on "malice-negating offense" based on the United States 

Supreme Court's decision in Alleyne v. United States, 133 S. Ct. 

2151 (2013). There, the Court held that any fact that increases 

a mandatory minimum sentence is an element of the crime, not 

merely a sentencing factor, and therefore a criminal defendant 

has a right under the Sixth Amendment to the United States 

Constitution to have the jury decide all such facts. Id. at 

2162-2163. Those Sixth Amendment concerns are not implicated 

here.
23

murder, including intent, beyond a reasonable doubt.

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

entire record pursuant to our duty under G. L. c. 278, § 33E, 

and conclude that there is no reason to order a new trial or to 

reduce the degree of guilt.

Judgments affirmed.