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SJC-11751

COMMONWEALTH vs. THOMAS GARDNER.

Bristol. November 10, 2017. - June 18, 2018.

Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.

Homicide. Practice, Criminal, Cross-examination by prosecutor, 

Argument by prosecutor, Instructions to jury, Lesser 

included offense, Capital case. Evidence, Crossexamination, Impeachment of credibility.

Indictments found and returned in the Superior Court 

Department on July 25, 2012.

The cases were tried before Gary A. Nickerson, J.

Theodore F. Riordan (Deborah Bates Riordan also present)

for the defendant.

Stephen C. Nadeau, Assistant District Attorney, for the 

Commonwealth.

LOWY, J. On the morning of Saturday, November 5, 2011, the 

defendant, Thomas Gardner, and the victim, Michael Duarte, met 

to conduct a drug transaction at a house in New Bedford that was 

owned by the defendant's ex-wife. Four days later, after the 

victim's girl friend had reported him missing, the police found 
2

the victim's body wrapped in a painter's tarpaulin hidden 

beneath the basement stairs of that house. The police also 

found evidence of the victim's blood in the kitchen, and a trash 

bag outside the house that contained clothing and a hammer 

bearing both the victim's and the defendant's blood. Further 

investigation showed that the victim had died of blunt force 

trauma to the head. He had suffered nineteen lacerations to his 

head and had four skull fractures; these injuries were 

consistent with blows from a hammer.

A Superior Court jury convicted the defendant of murder in 

the first degree on the theory of extreme atrocity or cruelty.1 

The defendant appeals from his convictions, claiming that (1)

the prosecutor's references to the defendant's prearrest silence 

during cross-examination and in closing argument were improper; 

(2) the prosecutor mischaracterized evidence during closing 

argument; and (3) the judge's instructions to the jury 

concerning lesser included offenses were erroneous. Although we 

agree that certain of the prosecutor's questions and comments 

concerning the defendant's failure to contact the police before 

his arrest were improper, we conclude that neither these errors 

nor the other arguments raised by the defendant created a 

substantial likelihood of a miscarriage of justice. 

 

1 The jury also found the defendant guilty of larceny of a 

motor vehicle; violation of an abuse prevention order; and

larceny.
3

Accordingly, we affirm the defendant's convictions and decline 

to exercise our extraordinary authority to grant relief under 

G. L. c. 278, § 33E.

Facts. We summarize the facts relevant to this appeal as 

the jury could have found them, reserving certain details for 

later discussion. The victim lived in New Bedford with his girl 

friend and their two daughters. Shortly before 9 A.M. on

November 5, 2011, the victim left his home, driving a Honda 

Civic automobile, after telling his girl friend that he was 

going to look at a house, located on Churchill Street, that was 

for sale. He was supposed to return home shortly to take care 

of his daughters. When the victim failed to return, his girl 

friend began calling him repeatedly on his cellular telephone 

beginning at 9:30 A.M., but she was unable to reach him. That 

afternoon, she drove to the house on Churchill Street that the 

victim had gone to see, but no one answered when she knocked on 

the door. Later that evening she contacted the New Bedford 

police to report that the victim was missing.

On the morning of November 9, officers with the Fairfield, 

Connecticut, police department learned that the victim's Honda 

Civic was at a rest area off of Interstate Route 95. When the 

first officer arrived, she observed the victim's vehicle parked 

at the far end of the parking lot, and the defendant sitting in 

the driver's seat.
4

When the defendant saw the police cruiser, he fled in the 

vehicle, reaching speeds in excess of one hundred miles per hour

and, among other things, struck another vehicle and ran over the 

foot of a police officer. The defendant eventually lost control 

of the vehicle, abandoning it in a wooded area. He continued on 

foot until he reached Westport, Connecticut, where he entered a 

building that was under construction and hid.

Shortly afterward, police officers arrested the defendant 

as he walked through Westport. The defendant initially denied 

that he was Thomas Gardner and claimed that he was a 

construction contractor working on the building where he had 

been hiding.

The defendant was eventually transported to a police 

station in Fairfield, Connecticut, where he was questioned by a 

member of the Massachusetts State police and a detective with 

the New Bedford police department. The interview was recorded 

and later shown to the jury at trial.2 After the police read the 

defendant the Miranda rights and informed him that the interview 

was being recorded, the defendant waived his rights and agreed 

 

2 The defendant challenged the voluntariness of his 

statements. After a hearing, the motion judge found that the 

statements "were freely and voluntarily given beyond a 

reasonable doubt." After the videotape was played for the jury, 

and later in his final instructions, the trial judge told the 

jury that they should not consider the statements made by the 

defendant unless they found beyond a reasonable doubt that the 

defendant had made the statements and that he had made them 

voluntarily, freely, and rationally.
5

to speak with police. The defendant stated that he was 

traveling with a "buddy" who was going to Florida and who had 

agreed to drop the defendant off at his mother's house in 

Pennsylvania on the way. The defendant said that he and his 

friend had left New Bedford late in the evening on November 6 in 

the friend's Honda Civic. En route, they pulled off at the 

Fairfield rest stop, where they remained for two days. The 

defendant said that his friend had been inside a restaurant at 

the rest stop when the police cruiser had appeared, and that the

defendant fled without him in the Honda Civic. After some 

prompting, the defendant indicated that the person he had been 

traveling with was the victim, who, he suggested, was going to 

Florida to get away from his girl friend. After further 

questioning about his trip, the defendant terminated the 

interview.

Later that same day, the New Bedford police department 

contacted the defendant's ex-wife and obtained her permission to 

search the Churchill Street house. There, the police discovered 

the victim's body hidden beneath a staircase in the basement, 

wrapped in a painter's tarpaulin secured with tape, with a 

plastic bag placed over his head. A paint can, a white 

painter's cloth, and other painter's materials had been piled on 

top of the body. In the kitchen, blood was found on the floor,

a ceiling fan, and a wall clock. Police also detected blood on 
6

the basement stairs. There was testimony that the blood on the 

wall clock in the kitchen belonged to the victim. Outside the 

house, the police discovered a trash bag containing a sweatshirt 

with both the victim's and the defendant's blood on a sleeve, a 

T-shirt with the victim's blood on the back, and a hammer 

bearing both the victim's and the defendant's blood. Subsequent 

investigation of the defendant's cellular telephone showed that 

on November 5, 2011, the defendant had called the victim at 8:24 

A.M. and 10:47 A.M., and that the victim had called the 

defendant at 8:38 A.M. and 9:06 A.M.

The medical examiner testified that the victim's death was 

caused by blunt force trauma to the head and brain injuries. 

The victim had suffered nineteen lacerations and two abrasions 

to his head; thirteen of the lacerations went to the bone. 

There were four distinct skull fractures. All of these injuries 

were consistent with having been caused by blows from a hammer. 

All the injuries were inflicted at around the same time and, 

although any one laceration alone could have been fatal, there 

was no way to determine the order in which the injuries were 

sustained, which injury rendered the victim unconscious, or 

which caused his death. The victim also had lacerations on his 

face, bleeding around both eyes, and minor abrasions on his 

right hand. He was missing some teeth that were later 
7

discovered in his stomach. The medical examiner opined that the 

victim had swallowed them prior to his death.

At trial, the defendant testified in his own defense. He 

admitted that he had killed the victim with the hammer that the 

police had found, but claimed that he had acted in self-defense. 

He testified that he was living at the Churchill Street house 

and that, on the morning of November 5, 2011, he had arranged to 

meet the victim there to buy heroin from him. When the

defendant gave the victim money for the heroin purchase, 

however, the victim became angry because the defendant already 

owed him money and did not have enough cash for the new 

purchase. According to the defendant, the victim punched him 

and a fight ensued, during which the victim tackled him and 

slammed him to the floor; the victim then got on top of the 

defendant, putting his knees on the defendant's chest and his 

hands around the defendant's throat, choking him. The defendant 

testified that he then grabbed a hammer from a nearby shelf and 

began "slapping" the victim's head with the side of the hammer 

before finally striking him with the face of the hammer and 

knocking him out briefly. After the defendant stood up and 

tried to catch his breath, however, the victim regained 

consciousness, grabbed the defendant's pants leg, and tried to 

yank the defendant back down to the ground. At that point, the 

defendant testified, he struck the victim again with the face of 
8

the hammer, killing him. The defendant then wrapped the 

victim's body in a tarpaulin and put it in the basement; 

disposed of the hammer and clothes in the trash; took the money 

from the victim's wallet; sent a false text message to the 

victim's cellular telephone asking him why he had not yet 

arrived; hid the victim's wallet and the victim's cellular 

telephone; and arranged to meet a friend to sell him the 

victim's drugs. The next day the defendant fled New Bedford.

Discussion. 1. Prosecutor's references to the defendant's 

prearrest silence. The defendant argues that the prosecutor 

improperly cross-examined him about his prearrest silence,3 and 

exploited that evidence in closing argument, in violation of the 

common law and his privilege against self-incrimination under 

art. 12 of the Massachusetts Declaration of Rights. The 

Commonwealth contends that the prosecutor's cross-examination 

concerning the defendant's prearrest silence was permissible in 

light of the omissions and falsehoods in the defendant's 

postarrest statements.

 

3 "Prearrest" silence occurs in the period prior to custody, 

"[w]hen a citizen is under no official compulsion whatever, 

either to speak or to remain silent." Jenkins v. Anderson, 447 

U.S. 231, 243-244 (1980) (Stevens, J., concurring). See 

Commonwealth v. Nickerson, 386 Mass. 54, 55, 60 (1982). 

"Postarrest" silence is silence at the time of arrest and after 

receiving Miranda warnings. See Doyle v. Ohio, 426 U.S. 610, 

618-619 (1976). See also Fletcher v. Weir, 455 U.S. 603, 605-

606 (1982) (per curiam).
9

We begin our analysis by noting that we have not previously 

considered whether art. 12 prohibits use of a defendant's 

prearrest silence for impeachment. See Commonwealth v. 

Nickerson, 386 Mass. 54, 59 (1982).4 Instead, we have resolved 

issues involving use of a defendant's prearrest silence for 

impeachment on evidentiary grounds. See Commonwealth v. Niemic, 

472 Mass. 665, 672-673 (2015); Nickerson, supra at 60-61.5

We first addressed the use of a defendant's prearrest 

silence for impeachment in Nickerson, 386 Mass. at 54. We 

recognized that where a defendant does not contact the police to 

tell them his story before he is arrested, and later testifies 

at trial to facts that he failed to disclose to the police 

before his arrest, the defendant's prearrest silence typically 

is of limited probative value with respect to the credibility of 

his testimony. See id. at 60-61 & n.6. We explained that there 

may be many reasons why a defendant does not wish to come 

 

4 "The Supreme Court of the United States . . . held that a 

defendant's pre-arrest silence may be used to impeach him 

without denying fundamental fairness guaranteed by the 

Fourteenth Amendment" to the United States Constitution, but 

"left it to the States to determine under their own rules of 

evidence when pre-arrest silence is so inconsistent with a 

defendant's testimony that impeachment by reference to that 

silence is probative." Nickerson, 386 Mass. at 59, citing 

Jenkins, 447 U.S. at 239.

5 The defendant in Nickerson, 386 Mass. at 59, made no 

claims under the Massachusetts Constitution, and accordingly we 

decided the case solely on common-law grounds. See Irwin v. 

Commonwealth, 465 Mass. 834, 852 n.31 (2013).
10

forward and speak to the police that have no bearing on his 

guilt or innocence. See id. at 61 n.6. "[A]n individual's 

failure to speak may be the result of his awareness that he has 

no obligation to speak, his caution arising from knowledge that 

anything he says may be used against him, and his belief that 

efforts to exonerate himself would be futile." Id., citing 

People v. Conyers, 52 N.Y.2d 454, 458 (1981). Moreover, "some 

individuals [may] not come forward because they want to avoid 

contact with the police." Nickerson, supra.

Jurors, however, who may not recognize the wide variety of 

alternative explanations for a defendant's prearrest silence, 

may overvalue such evidence and "construe such silence as an 

admission and, as a consequence, may draw an unwarranted 

inference of guilt." Nickerson, 386 Mass. at 61 n.6, quoting 

Conyers, 52 N.Y.2d at 459. Given these circumstances, allowing 

a defendant to be impeached based on his prearrest silence may 

result in substantial prejudice to that defendant, "burden[ing] 

his right to testify in his own defense." Nickerson, supra at 

61, citing Jenkins v. Anderson, 447 U.S. 231, 246 (1980) 

(Marshall, J., dissenting).

Consequently, we advised in Nickerson, 386 Mass. at 62,

that "[i]n general, impeachment of a defendant with the fact of 

his prearrest silence should be approached with caution, and, 

wherever it is undertaken, it should be prefaced by a proper 
11

demonstration that it was 'natural' to expect the defendant to 

speak in the circumstances." The trial judge may consider 

conducting a voir dire in these circumstances and, "if the 

evidence is admitted, the judge should, on request, instruct the 

jury to consider that silence for the purposes of impeachment 

only if they find that the witness naturally should have spoken 

up in the circumstances." Id.6

Applying this test to the situation in Nickerson, 386 Mass. 

at 55, 61-62, where the defendant testified at trial that 

another person had committed the assault and battery at issue, 

we held that it was improper for the judge to instruct the jury 

that, in assessing the defendant's credibility, they could 

consider the defendant's failure to give this information to the 

police before his arrest. We reasoned that, if the defendant 

had volunteered this information to the police, it would have 

shown that he was at the scene of the crime when it was 

committed, had seen the victim attacked and the weapon used, and 

knew the identity of the attacker -- information that "would 

 

6 In contrast to impeachment of a testifying defendant, 

before a witness other than the defendant can be impeached with 

his or her failure to report exculpatory evidence to police, the 

Commonwealth must establish "[1] that the witness knew of the 

pending charges in sufficient detail to realize that he 

possessed exculpatory information, [2] that the witness had 

reason to make the information available, [and] [3] that he [or 

she] was familiar with the means of reporting it to the proper 

authorities." Commonwealth v. Hart, 455 Mass. 230, 238 (2009), 

quoting Commonwealth v. Brown, 11 Mass. App. Ct. 288, 296–297 

(1981).
12

have gone a long way toward proving that the defendant committed 

the crime charged and, as an admission, would have been 

admissible as tending to prove his guilt." Id. at 60. Hence 

"[i]t would not have been 'natural' for the defendant to have 

come forward . . . and produce incriminating evidence against 

himself." Id.

More recently, in Niemic, 472 Mass. at 668-669, 673, a 

murder case where the defendant took the stand to testify that 

he had stabbed the victim in self-defense, we also held that it 

was error for the prosecutor to cross-examine the defendant 

about his failure to contact police and tell them about his 

alleged self-defense before his arrest. As in Nickerson, 386

Mass. at 60, we concluded that "it would not have been natural 

for [the defendant] to seek out police to tell his exculpatory 

story." Niemic, supra at 673.7 See Commonwealth v. Irwin, 72 

 

7 It is important to distinguish the situation where a 

defendant is being questioned about his or her failure to 

contact the police, however, from the situation where a 

defendant is being questioned about omissions in prearrest 

statements or inconsistencies between those statements and the 

defendant's later testimony. For example, although we held in 

Commonwealth v. Niemic, 472 Mass. 665, 672-673 (2015), that it 

was improper for the prosecutor to question the defendant about 

his failure to contact the police to tell them that he had 

stabbed the victim in self-defense, we also held that the 

prosecutor could properly question the defendant about voluntary 

prearrest statements that he had made to civilian witnesses in 

which he had omitted any mention of self-defense, where it would 

have been natural for him to explain that he had been acting in 

self-defense. See Commonwealth v. Greineder, 458 Mass. 207, 
13

Mass. App. Ct. 643, 653-654 (2008) (prosecutor's focus during 

cross-examination of defendant and in closing argument on 

defendant's refusal to participate in prearrest interview with 

police detective was improper); Commonwealth v. Ewing, 67 Mass. 

App. Ct. 531, 544-545 (2006), S.C., 449 Mass. 1035 (2007)

(prosecutor's remarks urging jury to discredit defendant's 

testimony because he did not contact police prior to trial after 

learning of charges not proper).

There are, however, situations where a defendant's 

testimony suggests that it would have been natural for him to 

contact police in the circumstances described, and in those 

cases it is appropriate for the prosecutor to cross-examine the 

defendant about his failure to do so. For example, in 

Commonwealth v. Barnoski, 418 Mass. 523, 524, 534 (1994), the 

Commonwealth alleged that the defendant had shot a father and 

son who were his social friends. The father died from his 

wounds, while the son survived. Id. at 527. The defendant 

testified that the son had shot the father, that the son had 

then threatened the defendant's wife, and that while the 

defendant was protecting his wife another acquaintance struggled 

with the son over the gun, resulting in the son's shooting. Id. 

at 534. Given this testimony, we concluded that it was not 

 

243-244 (2010), vacated on another grounds, 567 U.S. 948 (2012), 

S.C., 464 Mass. 580, cert. denied, 571 U.S. 865 (2013).
14

improper for the prosecutor to question the defendant about his 

failure to contact the police after the shootings, because "if 

the defendant's story were true, he naturally would have 

contacted the police to get help for his wounded friend," the 

father. Id. at 536. "The prosecutor did not ask any questions 

about the defendant's failure to inculpate [the son] (and thus 

exculpate himself)," but "simply brought out the fact that the 

defendant did not come forward when it would have been natural 

for him to do so." Id. at 536-537.

Here, after the defendant testified that he had killed the 

victim in self-defense, the prosecutor repeatedly cross-examined 

the defendant about his failure to contact the police during the 

period between the victim's death on November 5, 2011, and his

arrest on November 9, 2011.8 As in the cases cited above, the 

 

8 For example, at one point the prosecutor engaged in the 

following colloquy with the defendant:

Q.: "And it never occurred to you during any of this that 

you might want to call the police?"

A.: "Yes, it did. I wanted to call the police, yes."

Q.: "You wanted to call the police?"

A.: "Yes."

Q.: "Okay. Did you call the police on November 5th,

2011?"

A.: "No."

Q.: "The 6th?"
15

prosecutor's cross-examination and closing argument were

improper insofar as they focused on the defendant's prearrest 

silence. Notwithstanding the defendant's statement that he 

"wanted to call the police," the record suggests that, even 

assuming that he had killed the victim in self-defense, it would 

not have been natural for him to contact the police or volunteer 

information to them under the circumstances. In addition to the 

fact that telling his story to the police would have implicated 

him in the victim's death, the defendant had other reasons for 

avoiding the police: he was a drug addict; he had taken the 

victim's money and his vehicle; and he had been previously 

arrested for violating a restraining order that his ex-wife had 

obtained, and he knew that he had violated that order again by 

being in the Churchill Street house.

 

A.: "No."

Q.: "The 7th?"

A.: "No, I did not."

Q.: "The 8th?"

A.: "No."

The prosecutor returned to this line of questioning three more 

times during cross-examination of the defendant, asking the 

defendant to "tell the jury when it crossed [his] mind to call 

the police after this happened," and whether he was thinking 

about calling the police while he was hiding the defendant's 

body, while he sent a text message to his ex-wife, or while he 

was trying to sell drugs to another friend.
16

We reject the Commonwealth's argument that it was 

appropriate for the prosecutor to question the defendant about 

his prearrest silence because he dissembled in his postarrest 

statement. Our decisions have carefully distinguished 

impermissible references to a defendant's prearrest silence from 

permissible references to a defendant's postarrest statements.9 

Even where we have concluded that the prosecutor properly 

referred to inconsistencies and omissions in a defendant's 

postarrest statement, we have still held that references to a

defendant's prearrest silence were improper. See Commonwealth

v. Thompson, 431 Mass. 108, 116-118, cert. denied, 531 U.S. 864 

(2000) (prosecutor could properly comment on defendant's 

failure, during his postarrest interrogation, to ask appropriate 

questions about what had happened to his wife and daughter, but 

that it was error for prosecutor to question officer about 

defendant's prearrest silence when told of his wife's death).

 

9 In a line of cases beginning with Doyle, 426 U.S. at 618, 

the United States Supreme Court defined the category of 

infractions involving the use of a defendant's silence that 

gives rise to constitutional error. In Doyle, the Court held 

that the "use for impeachment purposes of [a defendant's] 

silence, at the time of arrest and after receiving Miranda 

warnings, violate[s] the Due Process Clause of the Fourteenth 

Amendment." Id. at 619. The Court in Doyle did not, however, 

establish a prophylactic rule that gives rise to a 

constitutional error in every case in which a prosecutor refers 

to a defendant's postarrest silence. The rule announced in 

Doyle does not apply to impeachment testimony regarding prior 

inconsistent statements after Miranda warnings. See Anderson v. 

Charles, 447 U.S. 404, 408 (1980) (per curiam).
17

Cf. Commonwealth v. Beneche, 458 Mass. 61, 71-72 & n.13, 76

(2010) (prosecutor could elicit testimony concerning defendant's 

failure to ask how his son was killed to show consciousness of 

guilt, but testimony about prearrest silence were not proper).

The fact that the defendant ultimately chose to speak to the 

police after his arrest, but did so falsely, does not change our 

conclusion that his prearrest silence was of minimal probative 

value.

Because defense counsel did not object to the prosecutor's

references to the defendant's prearrest silence during the 

defendant's cross-examination and closing argument, we determine

whether those errors resulted in a substantial likelihood of a 

miscarriage of justice. See Commonwealth v. Kolenovic, 478 

Mass. 189, 201 (2017). We conclude that they did not, because 

the defendant's testimony and self-defense claim were 

extensively and primarily undermined by other evidence at trial.

First, the jury saw the videotape recording of the 

defendant's interrogation following his arrest in Connecticut,

during which the defendant said nothing about his alleged fight 

with the victim, the victim's death, or killing in self-defense. 

Instead, the defendant spun an elaborate tale about traveling 

south with the victim and having left him behind at the rest 

stop restaurant when he fled from the police. At trial, the 

defendant admitted that the story he had told during this 
18

interrogation was a lie. As described above, the prosecutor 

permissibly cross-examined the defendant about the falsehood of 

his story and the inconsistencies between it and the defendant's 

testimony at trial, and emphasized this topic in closing 

argument.10

Second, certain forensic evidence contradicted the 

defendant's testimony. Although the defendant testified that he 

 

10 The prosecutor's cross-examination and comments in 

closing argument concerning the defendant's postarrest 

statements to police were proper, in contrast with the 

references to the defendant's prearrest silence. The defendant 

certainly had the right to refuse to speak to the police 

following his arrest, as he was informed at the outset of his 

interrogation. See, e.g., Commonwealth v. Clarke, 461 Mass. 

336, 341, 345 (2012). Having chosen to speak, the defendant's 

omissions in his postarrest statements to the police and the 

inconsistencies between those statements and his testimony at 

trial could be properly used by the prosecutor to question his 

credibility. "A defendant who takes the witness stand . . . is 

subject to the ordinary rigors of proper cross-examination, 

including questioning about prior inconsistent statements 

voluntarily made." Commonwealth v. Rivera, 425 Mass. 633, 639 

(1997). See, e.g., Commonwealth v. Morales, 440 Mass. 536, 551-

552 (2003) (prosecutor could properly comment on defendant's 

failure to indicate he acted in self-defense in statement given 

to police); Commonwealth v. Thompson, 431 Mass. 108, 118, cert.

denied, 531 U.S. 864 (2000) (where defendant charged with 

murdering wife gave voluntary postarrest statement to police 

during which he maintained innocence but failed to ask any 

questions about what had happened to wife or condition of 

daughter, prosecutor could properly comment on defendant's 

failure to ask appropriate questions that innocent party would 

ordinarily ask); Commonwealth v. Lavalley, 410 Mass. 641, 648-

650 (1991), overruled on another ground by Commonwealth v. King, 

445 Mass. 217 (2005) (where defendant in rape case testified at 

trial that victim had made sexual advances to him, but omitted 

that information in first statement to police, trial judge 

properly instructed jury that if they found that defendant had 

made false statements to police they could consider statements 

as evidence of consciousness of guilt).
19

and the victim were on the floor near some shelves when he 

struck most of the hammer blows, the forensic chemist saw no 

visible blood in that area but found visible blood on a ceiling 

fan and a wall clock. Most of the blood on the kitchen floor 

was in a different area from where the defendant alleged that he 

had fought with the victim and struck him with the hammer. The 

medical examiner stated that the scrapes on the victim's hands 

were "very small," "lacking any contusion around them," and that 

there were no injuries to the victim's forearms; this is 

contrary to what one might expect if the victim had engaged in a 

protracted struggle with the defendant.11 And two witnesses who 

saw the defendant later on Saturday, November 5, testified that 

the defendant's demeanor was normal and that they did not notice 

that he had any injuries. See Commonwealth v. Waite, 422 Mass. 

792, 802 (1996).

Finally, the jury heard extensive evidence tending to show 

the defendant's consciousness of guilt, including his efforts to 

conceal the victim's body and the evidence of the crime; the 

admittedly false text message sent to the victim's cellular 

telephone making it appear as if the victim had not come to the 

Churchill Street house on the morning of November 5; the 

 

11 The medical examiner testified that it was possible the 

abrasions on the victim's right hand were caused by punching the 

defendant, but that it was very unlikely given the absence of 

any bruising.
20

defendant's departure from New Bedford; and, after being

discovered in Connecticut, his flight, efforts to hide, and 

false statements to police. See Commonwealth v. Cassidy, 470 

Mass. 201, 217 (2014) ("[e]vidence of flight, concealment, false 

statements to police, destruction or concealment of evidence, . 

. . or similar conduct generally is admissible as some evidence 

of consciousness of guilt"); Barnoski, 418 Mass. at 537 n.8 

(defendant's consciousness of guilt supported by "ample 

evidence, other than the defendant's failure to go to police, of 

the defendant's flight and concealment to justify this 

instruction").

Given all of this other evidence, we conclude that the 

prosecutor's improper references to the defendant's prearrest 

silence would have played little if any role in the jury's 

decision to reject the defendant's version of events. 

Accordingly, we conclude there was no substantial likelihood of 

a miscarriage of justice.

2. Prosecutor's statement in closing argument. During 

closing argument, the prosecutor made the following statement:

"We now know that the defendant had a flurry of blows 

on [the victim's] head, that he was not unconscious 

for a period of time. And according to the defendant, 

he was the one who knocked him out. He was down on 

the ground. He was unconscious. That was the 

defendant's opportunity to flee there. That was his 

time to leave. All he had to do was walk out the door 

of the house. He didn't do that. He chose to stay, 

and he chose to strike [the victim] again and again 
21

and again in the head with that hammer. And so [the 

victim] breathes his last breath on the kitchen floor 

. . . ."

Defense counsel did not object to this statement at trial. The 

defendant argues on appeal that the prosecutor mischaracterized 

the evidence, and thereby caused a substantial likelihood of a 

miscarriage of justice. See Commonwealth v. Mello, 420 Mass. 

375, 379–380 (1995).

We disagree. There was ample evidence to support the 

prosecutor's statement that the defendant struck the victim with 

the hammer again and again, and the defendant admitted as much.

The medical examiner testified that the victim had suffered a 

total of nineteen lacerations to his scalp and that the victim's 

injuries could have been caused by the hammer identified as the 

murder weapon. Further, given the defendant's admission that 

one of the hammer blows he struck rendered the victim 

unconscious, the medical examiner's testimony that any of the 

lacerations and fractures she found on the victim's head could 

have been sufficient to do that, and her testimony that the 

victim only had minor scrapes on his hands and no injuries on 

his forearms where defensive wounds would be expected, it was 

certainly open to the prosecutor to suggest that some of the 

hammer blows were struck after the victim had lost 

consciousness. See Commonwealth v. Roy, 464 Mass. 818, 829 

(2013) ("In closing argument, '[p]rosecutors are entitled to 
22

marshal the evidence and suggest inferences that the jury may 

draw from it.' . . . Those inferences need only be reasonable 

and possible" [citation omitted]).

The defendant's argument that the prosecutor 

mischaracterized the evidence is based on the contention that 

the prosecutor was recounting the defendant's testimony about 

the altercation with the victim. This is not a fair 

interpretation of the prosecutor's statement, where he cited 

only the defendant's admission that he had knocked the victim 

out, leaving him on the ground and unconscious. The prosecutor 

was not reciting the defendant's entire story about the fight, 

nor was he required to do so. Citing the defendant's admission 

that he had knocked out the victim did not require the 

prosecutor to accept the defendant's other testimony that he did 

not strike the victim again while the victim was unconscious. 

The prosecutor was free to argue to the jury that they could 

rely on some of the defendant's admissions without being bound 

by all of his testimony. See Commonwealth v. McInerney, 373 

Mass. 136, 142-143 (1977) (jury may accept defendant's 

admissions as true while still rejecting his accompanying 

exculpatory statements as untrue).

3. Jury instructions on lesser included offenses. As a 

general rule, "a defendant is entitled to an instruction on a 

lesser included offense of the charged crime, when the facts 
23

could support the lesser offense." Commonwealth v. Shelley, 477 

Mass. 642, 643 (2017). Instructing the jury on the lesser 

included offense "gives the jury a third option, beyond 

acquittal or conviction" on the charged offense, and thus 

"mitigates concern that a jury would return a guilty verdict for 

the greater crime, even if they believe the prosecution has not 

proved each element, because the jury believe that the 

defendant's conduct warrants some form of punishment." Id. at 

644.

The defendant contends that the judge's instructions on the 

lesser included offenses to murder in the first degree were 

defective because they supposedly failed to make it clear that 

murder in the second degree and voluntary manslaughter are 

lesser included offenses of murder in the first degree committed 

with deliberate premeditation. The defendant's argument is 

premised on two statements in the judge's instructions. First, 

in the course of instructing the jury on murder in the second 

degree, the judge said: "The requirements of proof for murder 

in the second degree are the same as for murder in the first 

degree with extreme atrocity or cruelty but without the element 

that the killing was committed with extreme atrocity or 

cruelty." The judge repeated this statement the next day in the 

course of reinstructing the jury in response to their request 

for "a definition of the various charges and conditions." 
24

Second, while reinstructing the jury, the judge also said: "If 

you look at those elements [of manslaughter] and compare it, 

say, to the elements of second-degree murder, you'll find that 

they are the identical element[s], except in second-degree 

murder, the Commonwealth has to prove the absence of mitigating 

circumstances." Because the first statement compared the 

elements of murder in the second degree only with the elements 

of murder in the first degree committed with extreme atrocity or 

cruelty, but not with the elements of murder in the first degree 

committed with deliberate premeditation, the defendant contends 

that these statements misled the jury into believing that murder 

in the second degree and voluntary manslaughter are lesser 

included offenses only of murder committed with extreme atrocity 

or cruelty, but not of murder committed with deliberate 

premeditation. Consequently, the defendant argues that the jury 

were not given the option of finding the defendant guilty of 

murder in the second degree or voluntary manslaughter as lesser 

included offenses of murder in the first degree committed with 

deliberate premeditation.

We conclude that there was no error in the judge's 

instructions. As an initial matter, both of the statements by 

the judge are legally correct, as the defendant concedes. The 

first statement is taken verbatim from the instruction on murder 

in the second degree contained in the Model Jury Instructions on 
25

Homicide at 58 (2013). It properly states that the elements of 

murder in the second degree are the same as for murder in the 

first degree with extreme atrocity or cruelty, except that the 

former lacks the element of extreme atrocity or cruelty. See 

id. at 43 (instruction for murder in the first degree with 

extreme atrocity or cruelty). Likewise, the second statement is 

correct because "[a] killing that would otherwise be murder in 

the . . . second degree is reduced to the lesser offense of 

voluntary manslaughter where the Commonwealth has failed to 

prove that there were no mitigating circumstances." Id. at 64.

Furthermore, considered in their entirety and as a whole, 

the judge's instructions plainly informed the jury they could 

consider murder in the second degree and voluntary manslaughter 

as lesser included offenses of murder in the first degree with 

deliberate premeditation. See Commonwealth v. Bois, 476 Mass. 

15, 26 (2016), quoting Commonwealth v. Young, 461 Mass. 198, 207 

(2012) ("When reviewing jury instructions, '[w]e evaluate the 

instruction as a whole, looking for the interpretation a 

reasonable juror would place on the judge's words.' . . . We do 

not consider bits and pieces of the instruction in isolation").

The verdict slip clearly listed "Guilty of the lesser 

included offense of Murder in the Second Degree" and "Guilty of 

the lesser included offense of Manslaughter" as options for the 

jury to consider, following the options of not guilty, and 
26

guilty of murder in the first degree on each of the three 

theories (deliberate premeditation, extreme atrocity or cruelty, 

and felony-murder).12 Moreover, when the judge described the 

verdict slip to the jury at the outset of his instructions on 

homicide, he specifically identified murder in the second degree 

and manslaughter as lesser included offenses of murder in the 

first degree under the theories of both deliberate premeditation 

and extreme atrocity or cruelty. Given this context, it was 

sufficiently clear to the jurors that they could consider murder 

in the second degree and manslaughter as lesser included 

alternatives to murder in the first degree with deliberate 

premeditation.

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

entire record pursuant to our obligation under G. L. c. 278, 

§ 33E, and conclude that there are no grounds for reversing the 

defendant's convictions or for granting any other relief.

 

12 Insofar as the judge's instruction and the verdict slip 

suggested that "traditional" murder in the second degree was a 

lesser included offense of felony-murder in the first degree, 

the defendant received an instruction beyond what he was 

entitled to receive, because at the time of trial murder in the 

second degree based on malice was not a lesser included offense 

of felony-murder in the first degree. See Commonwealth v. Bell, 

460 Mass. 294, 307 n.19 (2011) (distinguishing between 

"'traditional' murder in the second degree based on malice, and 

felony-murder in the second degree based on a felony not 

punishable by life imprisonment"). But see Commonwealth v. 

Brown, 477 Mass. 805, 807 (2017) (in trials commencing after 

date of opinion, defendant may not be convicted of felony-murder 

without proof of one of the three prongs of malice).
27

Judgments affirmed.