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SJC-11839

COMMONWEALTH vs. RYAN D. WELCH.

Hampshire. February 5, 2021. - May 14, 2021.

Present: Budd, C.J., Gaziano, Lowy, Kafker, & Wendlandt, JJ.

Homicide. Constitutional Law, Search and seizure, Admissions 

and confessions, Voluntariness of statement, Privacy.

Privacy. Search and Seizure, Expectation of privacy, 

Hospital. Hospital. Evidence, Admissions and confessions, 

Voluntariness of statement, Authentication, Prior 

misconduct. Cellular Telephone. Practice, Criminal, 

Motion to suppress, Admissions and confessions, 

Voluntariness of statement, New trial, Assistance of 

counsel, Capital case.

Indictment found and returned in the Superior Court 

Department on April 24, 2012.

A pretrial motion to suppress was heard by C. Jeffrey 

Kinder, J.; the case was tried before Daniel A. Ford, J.; and a 

motion for a new trial, filed on March 20, 2019, was considered

by Ford, J.

Alan Jay Black for the defendant.

Cynthia M. Von Flatern, Assistant District Attorney (Jeremy 

C. Bucci, Assistant District Attorney, also present) for the 

Commonwealth.
2

LOWY, J. During the early hours of February 20, 2012, the 

victim, Jessica Pripstein, foreshadowed her own death. In a 

brief and frantic emergency call, she relayed to the dispatcher 

that her boyfriend was trying to kill her. Soon after, officers 

from the Easthampton police department responding to the call

found the victim dead on the bathroom floor of her apartment,

her throat cut. Her boyfriend, the defendant Ryan D. Welch, was 

on the bedroom floor with his throat cut, but alive. The

defendant subsequently was convicted of murder in the first 

degree, G. L. c. 265, § 1, on theories of both deliberate 

premeditation and extreme atrocity or cruelty. The defendant's 

direct appeal from that conviction was consolidated with an 

appeal from the trial judge's denial of his motion for a new 

trial, and both are now before this court.

On appeal, the defendant argues that the judge who heard 

his motion to suppress (motion judge) erred in not suppressing 

several statements that he made while hospitalized and that the 

trial judge erred in admitting in evidence allegedly 

unauthenticated text messages as well as prior bad acts evidence 

and in denying his motion for a new trial without first holding 

an evidentiary hearing. Finding no reversible error either in 

any issue raised by the defendant or in our review under G. L. 

c. 278, § 33E, we affirm the defendant's conviction and the 

order denying his motion for a new trial.
3

Background. We summarize the facts the jury could have 

found, reserving certain details for later discussion.

The defendant and the victim had been dating since the fall 

of 2011. As 2012 dawned, signs of unease in their relationship 

were apparent. Around early February, the victim told a 

coworker that she had "broken things off" with the defendant. 

Then, on February 10, one of the victim's neighbors overheard an 

argument between the victim and the defendant. This altercation 

culminated in the victim slamming a door and yelling at the 

defendant to leave, which he did. The victim told her sister on 

February 18 that she planned on finding a way to end the 

relationship.

On the evening of February 19, the defendant spent several 

hours eating and drinking at a local bar. He explained to a 

bartender how he had recently both lost his job and been 

arrested for operating a motor vehicle while under the influence 

of alcohol (OUI). In regard to the OUI, the defendant 

complained that the victim had refused to post his forty dollar 

bail even though he had just spent seventy dollars on a bouquet 

of flowers for her for Valentine's Day. According to the 

bartender, the defendant appeared to be "aggravated." The 

victim later joined the defendant at the bar. When the bill was 

due, the defendant did not have enough money to pay it and the 
4

victim paid the difference, appearing to be embarrassed. Then,

at around 11:05 P.M., the defendant and the victim left the bar.

At 12:04 A.M. on February 20, the victim called 911, 

screaming that her boyfriend was trying to kill her. By the 

time the call was transferred to a public safety dispatcher, the 

victim was no longer on the line. The dispatcher's attempts to 

call the victim back went unanswered. Officers arrived at the 

victim's apartment within three minutes of being dispatched.

After knocking on the apartment's door and receiving no 

response, an officer peered through a window and noticed blood 

on the floor. Officers then forced their way through the front 

door, which was blocked by a futon. Once inside the apartment, 

the officers discovered the victim dead on the bathroom floor 

with her throat cut and a knife lying on her back. The

defendant was lying nearby on the floor of the bedroom, a knife 

in his back pocket. His throat, too, was cut, but he was alive. 

Bloody sock prints led from the bathroom toward where he lay. 

The defendant's fingerprints were later found on the futon that 

had blocked officers' entry through the front door, and a large 

amount of his blood was found in front of the futon.

The defendant received emergency medical treatment at the 

scene and then was transported to a nearby hospital, where he 

underwent surgery. Autopsy results later confirmed that the

victim's throat wound -- which measured two and one-half inches 
5

deep and four inches across -- was inconsistent with suicide. 

The defendant subsequently was arrested and charged with the 

victim's murder.

Discussion. 1. Motion to suppress. Prior to trial, the 

defendant moved to suppress handwritten notes and oral 

statements he made to officers while he was hospitalized on 

February 21 and February 22, 2012.1 The motion judge allowed the 

motion as to the statements the defendant made to officers after 

he had been arrested on February 22, but otherwise denied it. 

On appeal, the defendant makes three arguments pertaining to the 

motion to suppress: (1) that his handwritten notes should have 

been suppressed as the product of an illegal search; (2) that 

his statements were obtained in violation of his Miranda rights, 

see Miranda v. Arizona, 384 U.S. 436, 444-445 (1966); and (3)

that even if these statements were not obtained in violation of 

Miranda, they were made involuntarily.2

1 The defendant also argued below that the notes were seized

illegally, but he does not renew this argument on appeal.

2 The defendant further argues that suppression of several 

notes to hospital personnel, as well as statements he made to a 

nurse at the Hampshire County house of correction, is required 

because these communications were provided to officers, 

resulting in violations of both the Federal Health Insurance 

Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. 

§ 1320d-6, and the Massachusetts Patient's Bill of Rights, G. L. 

c. 111, § 70E. Yet even if the notes are covered by it, "HIPAA 

does not provide any private right of action, much less a 

suppression remedy." United States v. Streich, 560 F.3d 926, 

935 (9th Cir.) (Kleinfeld, J., concurring), cert. denied, 558 
6

"In general, in reviewing a ruling on a motion to suppress, 

we accept the judge's subsidiary findings of fact absent clear 

error but conduct an independent review of his ultimate findings 

and conclusions of law." Commonwealth v. Tremblay, 480 Mass. 

645, 652 (2018), quoting Commonwealth v. Clarke, 461 Mass. 336, 

340 (2012). As is noted infra, some of the interactions between 

the officers and the defendant were video recorded. When a 

judge's findings are based solely on documentary evidence such 

as a video recording, we review those findings de novo. 

Tremblay, supra at 654-655. "By contrast, findings drawn partly 

or wholly from testimonial evidence are accorded deference and 

are not set aside unless clearly erroneous." Id. at 655.

a. Facts. Before considering each of the defendant's 

arguments in turn, we set out the relevant facts that the motion 

judge found following an evidentiary hearing. The facts are 

supplemented with uncontroverted facts in the record. 

Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).

U.S. 920 (2009). See, e.g., State v. Yenzer, 40 Kan. App. 2d 

710, 712-713 (2008) (HIPAA does not provide suppression remedy); 

State v. Straehler, 2008 WI App 14, ¶ 13 ("HIPAA does not 

provide for suppression of the evidence as a remedy for a HIPAA 

violation"). See also United States v. Zamora, 408 F. Supp. 2d 

295, 298 (S.D. Tex. 2006) ("HIPAA was passed to ensure an 

individual's right to privacy over medical records, it was not 

intended to be a means for evading prosecution in criminal 

proceedings"). A breach of G. L. c. 111, § 70, also "does not 

require exclusion at trial." Commonwealth v. Senior, 433 Mass. 

453, 457 n.5 (2001).
7

After officers discovered the defendant at the victim's 

apartment on February 20, he was transported to a nearby 

hospital. Following surgery on his neck, the defendant was 

moved to the intensive care unit (ICU) for recovery. Officer 

Timothy Rogers accompanied the defendant into the ICU but did 

not have contact with him or communicate with him. The 

defendant was sedated, as hospital staff believed he might pose 

a suicide risk.

At around 11:45 A.M. on February 20, Rogers was relieved by 

Sergeant Bruce Nichol, who entered through the ICU's door, which 

remained open throughout the officer's stay. Nicol sat against 

a wall in the defendant's ICU room and observed him, although at 

no point did Nicol have any contact with him or communicate with 

him. Over the next twelve hours, the defendant began to regain 

consciousness and started to communicate with nurses by 

gesturing. Because the defendant was intubated with breathing 

and feeding tubes, he was unable to speak. The defendant also

was connected to an intravenous line. Nichol observed that the 

defendant responded appropriately to questions asked by a nurse 

to assess his mental cognition.

Officer Dennis Scribner relieved Nichol at around 

11:40 P.M. on February 20. Scribner mostly monitored the 

defendant from a position in the hallway outside the defendant's 

ICU room by looking into the room through its door, which 
8

remained open. Scribner observed hospital staff members 

entering and leaving the defendant's room freely. At around

5:30 A.M. on February 21, a nurse offered Scribner a note 

written by the defendant that the defendant had given to the 

nurse. In the note, the defendant asked if he would recover and 

be able to speak again, what would happen to him when he left, 

why there were police officers in his room, and about his 

girlfriend's condition. After Scribner read the note, it 

remained on a table in the hallway outside the defendant's room 

until one of Scribner's replacements eventually took it into 

custody.

At roughly 7:45 A.M. on February 21, Scribner was relieved 

by State police Trooper William McMillan. At around 9:50 A.M., 

a nurse invited McMillan to approach the defendant's bedside to 

answer the defendant's question. The defendant wrote a note to 

McMillan that asked about whether he could be evicted because he 

was behind on rent. After telling the defendant that he would 

investigate the situation, McMillan had no more interaction with 

him during this shift.

State police Trooper John Riley, the lead investigator for

the case, arrived at the ICU at around 1:35 P.M. on February 21. 

Upon entering the defendant's ICU room, Riley explained who he 

was and that he was there to investigate the circumstances 

surrounding the defendant's injury. The defendant was still 
9

unable to speak, so he nodded his head. After Riley suggested 

that the defendant might have information that would be helpful, 

the defendant nodded his head again. After an unclear gesture

by the defendant, Riley asked if the defendant was not yet ready 

to speak because of his neck injury. The defendant nodded his 

head, and Riley left the defendant's room.

Later, a nurse informed Riley that they would be reducing 

the defendant's pain management medication, fentanyl, and begin 

administering oxycodone so that the defendant could be moved out 

of the ICU. The same nurse also informed Riley that the 

defendant scored perfectly on a cognitive test. Shortly 

afterward, a nurse told Riley that the defendant had given the 

nurse a note. The note stated: "Bleeding from neck then 

vaguely remember paramedics police? Before passing out. 

Girlfriend unconscious completely. Don't know why her or me." 

Riley left the defendant's room and noticed more notes on a

table in the hallway. Eventually, these notes were taken into 

custody when a nurse asked another officer whether he wanted 

them.

At 4 P.M., Riley introduced State police Trooper Gary 

Darling, who had arrived for a shift, to the defendant. Riley 

told the defendant that if he wanted to talk, he should let 

Darling know. The defendant responded by writing "one more day 

in ICU before I can talk." Riley then departed but returned two 
10

hours later and learned that the medical staff would soon be 

administering another cognitive test. Riley informed the 

defendant that if he wanted to speak with the officers, this 

would be a good time. The defendant responded in writing:

"We can talk briefly, but I am still terrified about the 

situation, I also know that you will most likel[y] be 

considering me a suspect. Until I can speak, I can't have 

a reasonable conversation with anyone, but believe me, I am 

trying my best to get this moving. I Just [sic] lost 

someone very important to me, and I am not sure why."

With the defendant's consent, Riley and Darling videotaped 

the cognitive test. After the defendant passed the test, Riley 

interviewed the defendant. While Riley was explaining the 

interview's purpose, the defendant wrote that he "was at her 

house," "She was in the bathroom," and "Hygiene/makeup." Riley 

then asked the defendant to stop and listen, and Riley explained

that the defendant was not under arrest and verbally advised the 

defendant with an incomplete set of Miranda warnings.3 When 

asked whether he was familiar with Miranda warnings, the 

defendant nodded affirmatively. The defendant then wrote: 

"What I will say for now is that when I opened the bathroom 

door, I found her in a pool of blood unconscious."

At this point, Riley paused the interview again and 

explained to the defendant that everything he wrote became part 

3 Riley failed to advise the defendant that an attorney 

would be appointed for him if he could not afford one.
11

of the record and asked the defendant if he wished to continue. 

The defendant replied in writing, "I was in a total state of 

panic[] when I saw her and didn't know what to do. I think this 

would be better discussed when I am more capable. ASAP I want 

to talk to you all the same." The defendant added, "It's too 

serious to discuss right now. I will accept a lawyer maybe," 

then crossed out the words "I will accept a lawyer maybe" and 

wrote, "I will do my best. I'm sorry."4 Nearly an hour into the 

interview, Riley terminated it after the defendant wrote, "At 

this point I would like to see a lawyer. You k[n]ow w[h]ere to 

look now."

Riley returned the following day, February 22, and arrested

the defendant at around 10:38 A.M. This occurred in a non-ICU

hospital room where the defendant had been moved sometime during 

either the evening of February 21 or the early morning of 

February 22. Riley explained to the defendant that he would be 

seizing the defendant's notepad and seeking a warrant to search 

it. The defendant replied by writing, "[A]m I somehow waiving 

my right to an attorney by doing this?" He added, "[A]t this 

4 The defendant also offered the following in notes: "Is 

she still alive? Prior injuries. Also longstanding psychiatric 

issues as well, and as I do to some extent"; "I injured myself 

only. I couldn't deal with having to be in this position for no 

fault of my own. Sorry"; and "With the knife I picked up from 

next to her. There is much more to this story beyond that, but 

both wounds were self inflicted, as far as I can tell."
12

point, I do reserve my right to remain silent, and the right to 

any private conversations with medical providers."

b. Search. The defendant first argues that officers 

violated his rights under the Fourth Amendment to the United 

States Constitution and art. 14 of the Massachusetts Declaration 

of Rights when they read handwritten notes that the defendant

passed to both hospital staff and law enforcement while he was 

recovering in the ICU.5 The motion judge found that no search 

occurred. We agree.

"The Fourth Amendment and art. 14 protect individuals from 

unreasonable searches and seizures. For these constitutional 

protections to apply, however, the Commonwealth's conduct must 

constitute a search in the constitutional sense." Commonwealth

v. Almonor, 482 Mass. 35, 40 (2019). Whether such a search 

occurred "turns on whether the police conduct has intruded on a 

constitutionally protected reasonable expectation of privacy." 

Commonwealth v. Porter P., 456 Mass. 254, 259 (2010), quoting 

Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). "The 

measure of the defendant's expectation of privacy is (1) whether 

5 Although the thrust of the defendant's argument focuses on 

whether a search of his ICU room occurred, he references in 

passing multiple hospital rooms in which a search may have 

occurred. Insofar as the defendant refers to the non-ICU 

hospital room where officers arrested him on February 22, we 

have reviewed the record, and it is at best unclear whether 

officers even entered this room before arresting the defendant.
13

the defendant has manifested a subjective expectation of privacy 

in the object of the search, and (2) whether society is willing 

to recognize that expectation as reasonable." Porter P., supra, 

quoting Montanez, supra. "The defendant bears the burden of 

establishing both elements." Porter P., supra, quoting 

Montanez, supra.

The motion judge correctly found that the defendant lacked 

a subjective expectation of privacy in his ICU room. The door 

to the room remained open throughout the defendant's stay there. 

Hospital staff entered and left the room freely. Various 

officers also entered the room to speak with the defendant. 

Significantly, the defendant never asked the officers to leave. 

On the contrary, on at least one occasion the defendant appears 

to have invited an officer to enter the ICU room in order to 

communicate with him.

The defendant also made no effort to maintain the privacy 

of the notes themselves until after he was arrested on February 

22, 2012, at which point he expressed concern over their legal 

ramifications. Compare State v. Stott, 171 N.J. 343, 350, 354-

358 (2002) (defendant manifested expectation of privacy by 

hiding pills in hospital room's curtain), with State v. Rheaume, 

2005 VT 106, ¶ 9 (no subjective expectation of privacy in part 

of emergency room where door was open, defendant did not ask 

officer to leave, and defendant voluntarily communicated with 
14

officer). Instead, the defendant voluntarily shared the notes

with both hospital staff and police to communicate with them. 

Some of the notes that the defendant gave to hospital staff were 

left by staff on a table outside the ICU for indeterminate 

lengths of time. The defendant also passed notes to officers to 

communicate with them multiple times. In this regard, "[o]ur

conclusion that [the defendant] had no subjective expectation of 

privacy is compelled not by a finding that he legally abandoned 

[the notes] as much as it is by his wholesale failure to 

manifest any expectation of privacy in the items whatsoever."6 

Commonwealth v. Bly, 448 Mass. 473, 491 (2007).

Although this settles whether a search occurred in this 

case, we nonetheless discuss whether there is an objectively 

reasonable expectation of privacy in an ICU room.7 When 

determining whether society is willing to recognize an 

expectation of privacy as reasonable, we consider the following 

nonexclusive factors: (1) the nature of the place searched, (2) 

whether the defendant owned the place searched, (3) whether the 

defendant controlled access to the place searched, (4) whether 

the defendant owned the item seized or inspected, and (5)

6 Because no search in the constitutional sense occurred, we 

do not consider the defendant's argument that nurses at the 

hospital operated as agents of law enforcement.

7 We have never ruled on whether there is an objectively 

reasonable expectation of privacy in such a space.
15

whether the defendant took "normal precautions to protect his 

privacy." Porter P., 456 Mass. at 259, quoting Commonwealth v. 

Pina, 406 Mass. 540, 545, cert. denied, 498 U.S. 832 (1990).

Much like in an emergency room, a patient's privacy 

interests are greatly diminished in the ICU. See Flannery, 

First, Do No Harm: The Use of Covert Video Surveillance to 

Detect Munchausen Syndrome by Proxy -- An Unethical Means of 

"Preventing" Child Abuse, 32 U. Mich. J.L. Reform 105, 155 

(1998) ("The emergency room, by its very nature, functions as a 

freely accessible area over which a patient has no control and 

where his privacy is diminished"). Although "the public at 

large may not freely access" the ICU, "medical personnel, 

hospital staff, patients and their families, and emergency 

workers . . . are, as a matter of course, frequently, and not 

unexpectedly, moving through the area." Rheaume, 2005 VT 106, 

¶ 10 (detailing lack of reasonable expectation of privacy in 

curtained off area of emergency room).

Such is true in this case. Not only did several officers 

enter the defendant's ICU room unhindered, but a steady stream 

of hospital personnel also freely flowed through it in order to 

keep watch over him. Given the severity of the defendant's 

injuries, and the potential suicide risk that he posed, the 

constant attention paid to him by medical staff is unsurprising. 

See Flannery, 32 U. Mich. J.L. Reform at 155-156 (whereas "it is 
16

possible for the hospital to respect a patient's request for 

privacy in the room for a certain time period[,] such a request 

would be unreasonable in an emergency room setting" where 

constant attention is inherent to treatment).

As other courts have reasoned, it is difficult, if not 

impossible, in these conditions for a patient to control access 

to the area he or she wishes to safeguard. See, e.g., State v. 

Cromb, 220 Or. App. 315, 325 (2008) ("social norms do not treat 

a hospital emergency room, even curtained areas within it, as 

space in which privacy rights inhere" because of patient's lack 

of control); Matthews v. Commonwealth, 30 Va. App. 412, 415 

(1999) (no reasonable expectation of privacy in separate 

treatment room in emergency ward); Rheaume, 2005 VT 106, ¶ 10

(patient's lack of control over trauma room renders expectation 

of privacy unreasonable); Wagner v. Hedrick, 181 W. Va. 482, 487 

(1989) (no reasonable expectation of privacy in emergency room 

in which medical personnel "were constantly moving around" and 

that was "freely accessible to law enforcement officers"); State

v. Thompson, 222 Wis. 2d 179, 193 (1998) (no "reasonable 

expectation of privacy in either the emergency room or the 

operating room"). We conclude that even if the defendant had 
17

manifested an expectation of privacy in his ICU room, it would 

not have been reasonable.8

c. Miranda rights. The defendant next argues that 

statements he made on February 21 while he was in the ICU should 

have been suppressed, arguing that his Miranda rights were 

violated when officers did not scrupulously honor his invocation 

of his right to silence.9 "[I]n circumstances of custodial 

interrogation, Miranda requires that the defendant 'be warned 

prior to any questioning that he has the right to remain silent, 

that anything he says can be used against him in a court of law, 

that he has the right to the presence of an attorney, and that 

if he cannot afford an attorney one will be appointed for him 

prior to any questioning if he so desires'" (footnote omitted). 

Clarke, 461 Mass. at 341-342, quoting Miranda, 384 U.S. at 479. 

8 This does not mean that donning an ICU gown necessarily 

strips from a defendant every privacy interest he or she had 

before being admitted. A defendant may, for example, have a 

reasonable expectation of privacy in items stored within the 

possessions he or she brings into the ICU. See, e.g., People v. 

Wright, 804 P.2d 866, 868 (Co. 1991) (defendant had "reasonable 

expectation of privacy in the contents of her purse" that police 

searched while she was being treated at hospital); State v. 

Loewen, 97 Wash. 2d 562, 564, 569 (1982) (warrantless search of 

defendant's tote bag left at nurse's station at hospital 

unreasonable). However, as is clear from the discussion supra, 

that is not this case.

9 The defendant also appears to argue that statements he 

made the next day, February 22, were obtained in violation of 

his Miranda rights. Because the motion judge suppressed the

statements made after the defendant was arrested, it is unclear 

to which other statements the defendant refers.
18

Before determining whether the defendant invoked his right to 

silence, however, we must examine whether he was in custody at 

the time and thus whether Miranda warnings were necessary. See 

Commonwealth v. Jung, 420 Mass. 675, 689 (1995), quoting Oregon

v. Mathiason, 429 U.S. 492, 495 (1977) ("Miranda warnings are 

required only where there has been such a restriction on a 

person's freedom as to render him 'in custody'"). We determine 

that he was not in custody.

An individual is in custody when "a reasonable person in 

the suspect's shoes would experience the environment in which 

the interrogation took place as coercive." Commonwealth v. 

Larkin, 429 Mass. 426, 432 (1999). To determine whether the 

environment in which an interrogation was coercive, we examine 

four nonexclusive factors, no one of which is dispositive:

"(1) the place of the interrogation; (2) whether the 

officers have conveyed to the person being questioned any 

belief or opinion that that person is a suspect; (3) the 

nature of the interrogation, including whether the 

interview was aggressive or, instead, informal and 

influenced in its contours by the person being interviewed; 

and (4) whether, at the time the incriminating statement 

was made, the person was free to end the interview by 

leaving the locus of the interrogation or by asking the 

interrogator to leave, as evidenced by whether the 

interview terminated with an arrest."

Commonwealth v. Tejada, 484 Mass. 1, 8, cert. denied, 141 S. Ct. 

441 (2020), quoting Commonwealth v. Groome, 435 Mass. 201, 211-

212 (2001). See Commonwealth v. Bryant, 390 Mass. 729, 737 

(1984) ("Rarely is any single factor conclusive"). "Where a 
19

defendant challenges the admission of a statement allegedly 

resulting from custodial interrogation, the defendant bears the 

initial burden of proving custody." Commonwealth v. Newson, 471 

Mass. 222, 229 (2015).

A reasonable person in the defendant's position would not 

have experienced the environment at issue as coercive. Officers 

questioned the defendant in his ICU room, not an interrogation 

room. See Commonwealth v. McGrail, 80 Mass. App. Ct. 339, 346 

n.12 (2011) (hospital cubicle where defendant was treated for 

injuries and where officers and medical personnel entered and 

departed multiple times not custodial). Cf. Commonwealth v. 

Mejia, 461 Mass. 384, 390 (2012) (conference room in hospital 

where defendant was treated for injuries "neutral location" and 

noncustodial). The motion judge found that "health care 

providers freely came and went through an open door" of the 

defendant's room, signifying that officers could not dominate 

the setting. See United States v. Infante, 701 F.3d 386, 397 

(1st Cir. 2012), cert. denied, 570 U.S. 911 (2013) (defendant 

not in custody where "hospital staff came and went freely during 

the course of the interviews, suggesting that the officers were 

not in a position to dominate [the setting] as they are, for 

example, an interrogation room at a jailhouse" [quotation and 

citation omitted]). In short, although a person may be in 

custody without having set foot into a police station, see, 
20

e.g., Commonwealth v. Damiano, 422 Mass. 10, 13 (1996), the 

place of interrogation here was not coercive.

Other factors, too, demonstrate that the defendant was not 

in custody on February 21. Although the defendant wrote that he 

believed he was a suspect, officers did not communicate this to 

him at the time. See Mejia, 461 Mass. at 390 (Miranda warnings

unnecessary where although defendant "knew that police were 

seeking an arrest warrant for the defendant and admitted on 

cross-examination that there was probable cause to arrest, these 

suspicions were never communicated to the defendant"). See also 

Commonwealth v. Morse, 427 Mass. 117, 124 (1998), quoting 

Stansbury v. California, 511 U.S. 318, 324 (1994) ("an officer's 

evolving but unarticulated suspicions do not affect the 

objective circumstances of an interrogation or interview, and 

thus cannot affect the Miranda custody inquiry"). The officers' 

questioning was also not aggressive. On the contrary, each 

interview was accompanied with inquiries by officers to the 

defendant asking whether he wished to talk to them. Compare 

Commonwealth v. Cawthron, 479 Mass. 612, 622 (2018), quoting 

Commonwealth v. Coleman, 49 Mass. App. Ct. 150, 155 (2000) 

("interrogation was 'aggressive and persistent' where 

'defendant's denials were scorned and overridden,' 'substance of 

what was said was harsh and intended by the questioner to be 

so'"). Nor did the officers exploit the defendant's condition 
21

by seeking to extend his stay in the hospital unnecessarily. 

See United States v. Martin, 781 F.2d 671, 673 (9th Cir. 1985)

("There are no facts to indicate law enforcement officials . . .

did anything to extend [defendant's] hospital stay and 

treatment"). Indeed, it was the defendant who initiated most of 

the conversations by passing notes either to hospital staff or 

to police officers.

In response, the defendant stresses that he was connected

to machines and intravenous lines, rendering his freedom 

severely curtailed. It is true that the defendant's medical 

condition ensured that he could not leave the room at will. At 

the same time, the defendant, not law enforcement, created the 

situation in which he found himself. Cf. United States v. 

Jamison, 509 F.3d 623, 632 (4th Cir. 2007) (Miranda warnings 

unnecessary where defendant "was primarily restrained not by the 

might of the police, but by his self-inflicted gunshot wound, 

the medical exigencies it created, and the investigation he 

initiated"). Given the seriousness of the defendant's injuries, 

a "reasonable person would have understood that he was being 

held at the hospital by medical personnel for medical purposes," 

not by law enforcement for investigatory purposes. McGrail, 80 

Mass. App. Ct. at 346.

More importantly, officers expressly told the defendant 

that he could ask them to leave at any time. This is analogous 
22

to cases dealing with the Miranda rights of prisoners: the 

defendant's ability to leave the room was obviously constrained, 

but his ability to change who was in it was not. See, e.g.,

Larkin, 429 Mass. at 434 ("rather than asking whether a prisoner 

was free to leave the facility, courts have asked whether he is 

subject to some restraint in addition to those normally imposed 

on him by virtue of his status as an inmate"). In other words, 

had the defendant clearly told the officers to leave, and had

they refused, the analysis would be different. Because he did 

not, we discern no error.

Even assuming that the defendant was in custody at the 

time, the defendant's statement -- a written note stating "one 

more day in ICU before I can talk" -- did not properly invoke 

his right to remain silent on February 21. An invocation of the 

right must be "unambiguously" stated such that, objectively, "a 

reasonable police officer in the circumstances would understand 

the statement to be an invocation of the Miranda right." 

Clarke, 461 Mass. at 342 (quotation and citations omitted). 

Although establishing an invocation is less demanding under art.

12 of the Massachusetts Declaration of Rights than under the 

Federal standard set out in Berghuis v. Thompkins, 560 U.S. 370, 

381 (2010), statements indicating a willingness to speak with 

officers in the future are not sufficient to invoke the right. 

See Clarke, supra at 348 (defendant's statement, "Not right now, 
23

in a minute. I need to figure some things out," did not invoke 

right to be silent). The defendant's statement falls within 

this category.

d. Voluntariness. The defendant also contends that the 

statements he made while hospitalized were obtained 

involuntarily. "Where a defendant makes statements to the 

police while not in custody, we focus solely on the question 

whether his statements were voluntary" (quotation and citation 

omitted). Commonwealth v. Libby, 472 Mass. 37, 48 (2015). 

"[T]he Commonwealth must prove beyond a reasonable doubt that in 

light of the totality of the circumstances surrounding the 

making of the statement, the will of the defendant was [not] 

overborne, but rather that the statement was the result of a 

free and voluntary act" (quotations and citation omitted). 

Commonwealth v. Baye, 462 Mass. 246, 256 (2012). Because of the 

pain and confusion that he felt, as well as the effects of the

medications with which he was being treated, the defendant 

argues that the Commonwealth cannot carry its burden. We 

disagree.

"Only voluntary confessions or admissions are admissible 

regardless of whether they are made to police or civilians." 

Commonwealth v. Kolenovic, 478 Mass. 189, 198 (2017). To 

determine whether a statement was voluntarily made, we consider 

several factors, including (1) the "conduct of the defendant," 
24

(2) "the defendant's age, education, intelligence and emotional 

stability," (3) the defendant's "physical and mental condition," 

and (4) "the details of the interrogation, including the 

recitation of Miranda warnings." Commonwealth v. Bell, 473 

Mass. 131, 142 (2015), cert. denied, 136 S. Ct. 2467 (2016), 

quoting Commonwealth v. Hilton, 450 Mass. 173, 177 (2007).

Although statements "attributable in large measure" to 

debilitating conditions are "not the product of a rational 

intellect or free will," the mere influence of drugs or alcohol

on the defendant will not transform otherwise voluntary 

statements into involuntary ones. Bell, 473 Mass. at 141, 

quoting Commonwealth v. Allen, 395 Mass. 448, 455 (1985). 

Additionally, "[t]hat a defendant is suffering from a serious 

and painful injury, such as a bullet or knife wound, does not 

necessarily preclude a statement being made voluntarily." Bell, 

supra. Nor does "[t]he fact that a defendant may have been in a 

disturbed emotional state, or even suicidal, . . . automatically 

make statements involuntary." Commonwealth v. Richards, 485 

Mass. 896, 910 (2020), quoting Commonwealth v. LeBlanc, 433 

Mass. 549, 555 (2001).

Review of the record confirms that the defendant's 

statements were voluntary. Despite being hospitalized with a 

serious medical condition, having just undergone surgery, and 

being treated with pain medication, the defendant understood and
25

was responsive to questions by hospital staff and police 

officers. See Bell, 473 Mass. at 142 (despite suffering from 

serious injury, experiencing pain, and consuming intoxicants, 

defendant's coherent responses to medical providers and police 

officers rendered statements voluntary); Commonwealth v. 

Stroyny, 435 Mass. 635, 646-647 (2002) (defendant's statement to 

hospital staff and law enforcement made while in pain from 

slashed wrists was voluntary).

In particular, the defendant was awake and alert and passed 

the cognitive tests administered by hospital staff.10 See, e.g.,

Commonwealth v. Clark, 432 Mass. 1, 12-13 (2000) ("alert and 

oriented" defendant's statements to police voluntary despite 

recovering from gunshot wound to his head and arm); Allen, 395 

Mass. at 457 ("rational and alert" defendant's statements to 

nurse after brain surgery were voluntary). Cf. Commonwealth v. 

Rivera, 482 Mass. 259, 267 (2019) (defendant who was "not 

demonstrating confusion" voluntarily waived Miranda rights 

despite being medicated to treat pain from attempted suicide). 

The defendant could manipulate his surroundings to make himself 

more comfortable and could communicate his needs by writing

10 The motion judge also reviewed video recordings of the 

delirium test and the questioning, as well as credited expert 

testimony by a psychiatrist that the defendant's conduct and his 

medical records supported finding that his statements were 

voluntary.
26

notes to hospital staff. Indeed, the defendant not only 

appeared to be aware of his immediate surroundings, but also

inquired into the victim's medical condition and his own 

financial circumstances. The defendant even had the presence of 

mind to provide exculpatory statements, such as claiming that 

the victim's wounds were self-inflicted. See Commonwealth v. 

Sneed, 440 Mass. 216, 222 (2003) (defendant's effort to 

exculpate herself supported finding her statements to be 

voluntary).

Considering his OUI arrest the week before, the defendant 

"had some prior experience with law enforcement officers and the 

court system." Libby, 472 Mass. at 49. Even without this 

familiarity, the motion judge found that the officers' 

questioning was neither psychologically nor physically coercive. 

Officers made no improper promises or inducements. See 

Commonwealth v. Colon, 483 Mass. 378, 390 (2019) (absence of 

either express or implied assurances by officers why, in part,

defendant's statements were voluntary); LeBlanc, 433 Mass. at 

555-556 (same). Furthermore, officers repeatedly told the 

defendant that he could ask them to leave. Considering the 

totality of the circumstances, we hold that the defendant's 

statements were voluntary.

2. Evidentiary issues. In addition to the suppression

issues, the defendant challenges several evidentiary matters
27

from the trial. "We review a judge's evidentiary rulings for an 

abuse of discretion." Commonwealth v. Andre, 484 Mass. 403, 414 

(2020).

a. Text messages. At trial, the Commonwealth elicited 

testimony from State police Trooper David Swan regarding text 

message exchanges between the cell phones associated with the 

defendant and the victim. Swan read aloud text messages that 

highlighted, among other things, the defendant's problems with 

alcohol, money, his job, and tensions and arguments between the 

defendant and the victim. These text messages were exchanged 

between February 10 and February 18, 2012, the week leading up 

to the killing. The defendant argues that the text messages 

were not authenticated, and thus the trial judge erred in 

allowing them in evidence. We disagree.

"To satisfy the requirement of authenticating or 

identifying an item of evidence, the proponent must produce 

evidence sufficient to support a finding that the item is what 

the proponent claims it is." Mass. G. Evid. § 901(a) (2021). 

"Where the Commonwealth seeks to introduce evidence of cell 

phone communications, 'the judge [is] required to determine 

whether the evidence was sufficient for a reasonable jury to 

find by a preponderance of the evidence that the [individual] 

authored' the communications." Commonwealth v. Webster, 480 
28

Mass. 161, 170 (2018), quoting Commonwealth v. Purdy, 459 Mass. 

442, 447 (2011).

As with other types of communication, the authentication of 

text messages "may be accomplished by way of direct or 

circumstantial evidence, including its [a]ppearance, contents, 

substance, internal patterns, or other distinctive 

characteristics" (quotations and citation omitted). 

Commonwealth v. Lopez, 485 Mass. 471, 477 (2020). See Mass. G. 

Evid. § 901(b)(4). Other "confirming circumstances" that may 

authenticate text messages include acknowledgement that the 

defendant uses the cell phone, acknowledged ownership by a 

defendant of the cell phone containing the messages, and whether 

the defendant knows or supplies the passwords protecting the 

cell phone. See Purdy, 459 Mass. at 450–451. See also Mass. G. 

Evid. § 901(b)(11).

Abundant confirming circumstances are present here. 

Focusing first on the cell phones from which the text messages 

were sent and received, each was registered to the defendant's 

and the victim's e-mail accounts, respectively. Cf. Lopez, 485 

Mass. at 478 (fact that defendant lived with victim who owned 

cell phone from which text messages were sent confirming 

circumstance of defendant's authorship of messages). Both were 

password protected. Indeed, Swan testified that he had to use 

specialized software to break into the cell phones. Compare 
29

Commonwealth v. Williams, 456 Mass. 857, 869 (2010) (messages 

sent from social media webpage unauthenticated where "no 

testimony . . . regarding how secure such a Web page is, who can 

access a Myspace Web page, [or] whether codes are needed for 

such access"). Finally, officers found the cell phones with the 

defendant and the victim on the night of the killing.

Testimony about the text messages' contents further linked 

them to the defendant. See Purdy, 459 Mass. at 450-451 (e-mail 

account's secure nature combined with its contents authenticated 

messages). The messages were replete with details of the 

defendant's and the victim's lives, including the tensions 

within their relationship, aspects of their living arrangements, 

and the suspension of the defendant's driver's license from his 

OUI charge. See Commonwealth v. Alden, 93 Mass. App. Ct. 438, 

441 (2018), cert. denied, 139 S. Ct. 2010 (2019) ("In addition 

to the content of the text messages, [victim's] prior 

relationship with the defendant and her use of the telephone 

number to communicate with him over a significant period of time 

provided the necessary link").

Various text messages from the victim's cell phone to the 

defendant's cell phone, for example, referenced the defendant's 

distinctive nickname. Circumstances beyond the text messages 

tie this name to the defendant. Specifically, one message from 

the defendant describes how he intended to deliver the victim 
30

flowers on Valentine's Day. The defendant later remarked to a 

bartender how he had bought the victim flowers for the holiday. 

When officers arrived at the victim's apartment on February 20, 

they found flowers with a card inscribed with the defendant's 

distinctive nickname. Cf. Commonwealth v. Johnson, 470 Mass. 

300, 317-318 (2014) (e-mail messages authenticated "given the 

long-standing relationship between [the joint venturer] and the 

defendants, the defendants' prior use of the e-mail address at 

the time of the scheme, and the referencing of the harassing 

acts in the e-mails," which were independently observed). See 

Commonwealth v. Nardi, 452 Mass. 379, 396 (2008), quoting

Commonwealth v. LaCorte, 373 Mass. 700, 704 (1977)

(authentication may be established through testimony "that

circumstances exist which imply that the thing is what its

proponent represents it to be"). Taking all these confirming 

circumstances together, the evidence authenticating the text 

messages was overwhelming.

Against this conclusion, the defendant suggests that the 

text messages could have been authored by someone else, pointing 

to the lack of evidence about how regularly he may have needed 

to enter his password to use the cell phone, that there was no 

evidence about who else may have had access to the password, and 

that the card on the flowers may have been authored by an 

unidentified party. Maybe that is so. The defendant's claim, 
31

however, that another person may have authored either the text 

messages or the card is relevant to their weight, not their 

admissibility. Purdy, 459 Mass. at 451. The Commonwealth 

presented more than an ample foundation for the judge to 

determine that a reasonable jury could find by a preponderance 

of the evidence that the defendant authored the text messages.

b. Prior bad acts. The defendant next argues that the 

trial judge erred in allowing in evidence certain prior bad acts 

evidence. "We have long held that '[e]vidence of prior bad acts 

is not admissible to show that the defendant has a criminal 

propensity or is of bad character.'" Andre, 484 Mass. at 414, 

quoting Commonwealth v. Otsuki, 411 Mass. 218, 236 (1991). See 

Mass. G. Evid. § 404(b)(1). "However, such evidence is 

admissible when offered for another purpose, such as motive, 

opportunity, intent, preparation, plan, knowledge, identity, or 

pattern of operation, so long as its probative value for that 

purpose is not outweighed by its prejudicial effect." 

Commonwealth v. Hall, 485 Mass. 145, 163 (2020), citing 

Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). "[T]he 

application of [limiting] instructions ordinarily renders any 

potentially prejudicial evidence harmless." Crayton, supra at 

251, quoting Commonwealth v. Donahue, 430 Mass. 710, 718 (2000).

i. OUI charge. At trial, the Commonwealth introduced 

evidence that the defendant had been arrested for OUI the week 
32

before the killing, arguing that the victim's unwillingness to 

post bail was a motivating factor in the defendant's decision to 

kill her. On appeal, the defendant argues that any relationship 

between the OUI and an alleged motive is slight, and that its 

introduction served only to tarnish his reputation. Because the 

defendant preserved the issue, we review for prejudicial error. 

See Commonwealth v. McDonagh, 480 Mass. 131, 142 (2018). We 

find none.

Evidence concerning the OUI charge was relevant to show the 

deterioration of the defendant and the victim's relationship and 

thus provide a motive for why he killed her. See, e.g., 

Commonwealth v. Mason, 485 Mass. 520, 532 (2020) (prior bad acts 

evidence "provided context for the defendant's hostility toward" 

victim); Commonwealth v. Sharpe, 454 Mass. 135, 144-145 (2009) 

(prior bad acts evidence "relevant to show the existence of a 

hostile relationship"); Commonwealth v. Mendes, 441 Mass. 459, 

464-465 (2004) ("Evidence of the hostile relationship between 

the defendant and his wife was not offered as improper 

propensity evidence, as the defendant contends, but also as 

evidence of his motive to kill her"). At trial, the officer who 

arrested the defendant for the OUI testified that, during the 

arrest, the defendant explained that he had just been in a fight 

with his girlfriend. Text messages between the victim and the 

defendant, as well as witness testimony, established that he had 
33

recently been fired from his job, was financially strapped, and 

was increasingly anxious. For example, one witness testified 

that on the evening leading up to the killing, the defendant was 

aggravated by the victim's refusal to post his bail for the OUI 

charge.

Whatever prejudicial effect this evidence had on the 

defendant was slight when considered in the context of the rest 

of the evidence that the Commonwealth presented and the crime 

for which the defendant was on trial. In any event, the judge 

instructed the jury not to consider the OUI as evidence of the 

defendant's propensity to commit the crime charged in the 

indictment. See Commonwealth v. Bryant, 482 Mass. 731, 737 

(2019) (jury presumed to follow judge's limiting instructions 

concerning prior bad act evidence). Therefore, the judge did 

not abuse his discretion.

ii. Text messages about a work-related dispute. The 

Commonwealth also presented text messages between the defendant 

and the victim concerning a dispute that the defendant had with 

former coworkers, arguing that the exchange was relevant to

prove motive. The dispute, which led to the defendant being 

fired, involved a physical altercation between the defendant and

his coworkers. On appeal, the defendant contends that the text 

messages about the dispute bore only a "very tenuous" connection 

to the crime with which he was charged. Because the defendant 
34

did not preserve this issue, we review "for a substantial 

likelihood of a miscarriage of justice."11 Commonwealth v. 

Upton, 484 Mass. 155, 160 (2020). A brief description of these 

exchanges demonstrates that their link to the crime was far from 

tenuous.

At the time of the killing, the defendant recently had been 

fired from his job at a local restaurant. The victim also 

worked there and continued to do so after the defendant had been

terminated. Through a series of text messages to the victim in 

the days leading up to the killing, the defendant ranted about 

perceived wrongs done to him by former coworkers. The victim's 

answers varied from seeking to change the subject to trying to 

calm the defendant down. Yet in response to the victim's 

attempts to extricate herself from the exchanges, the defendant

turned his ire on her, alleging that the victim was like his 

former coworkers: aloof to his struggles. Several instances of 

this pattern occur in the exchanges.12 After further analogous 

11 The defendant claims that the issue is preserved because 

of the motion in limine he filed to exclude the text messages. 

However, the only motion concerning the text messages filed by 

the defendant dealt with the authentication issue and did not 

raise the prior bad acts issue. A different motion in limine 

did object to prior bad act evidence, but that referenced only

the OUI testimony.

12 For example, in response to the victim telling the 

defendant to "calm down," the defendant wrote: "You don't care 

about me either apparently. That makes it easier for me to just 

say fuck you too. You'd be better off working at something you 
35

back-and-forth exchanges, the victim appears to have grown weary

not only of the dialogue, but also of the defendant, telling 

him, "Whatever. Evacuate my house immediately." As the 

defendant continued to complain about work-related problems, the 

victim repeated that she wanted him to leave her apartment.

Although the impetus for these exchanges is a work-related 

dispute, their connection to the defendant and the victim's 

relationship is not "tenuous." Like the OUI, the text messages 

demonstrated motive. Throughout the exchanges, the defendant 

connected his complaints about his former coworkers and employer 

to the victim, eventually blaming the latter for his 

misfortunes. In doing so, the text messages showcased the 

defendant's palpable anger with the victim. Whatever 

prejudicial effect the text messages had did not outweigh their 

significant probative value. We discern no error.

3. Motion for a new trial. After being convicted, the 

defendant moved for a new trial, claiming that his trial counsel 

had been ineffective. Specifically, the defendant argued that 

he and his trial counsel had been unable to communicate 

want to do." The defendant quickly followed up this message 

with another one stating: "I have less problem destroying [the 

defendant's former employer] now." In another instance, after 

the victim told the defendant to leave her apartment, he wrote

to her: "Talk to me when either you or [a former coworker]

grows a conscience. You would have done what I'm doing now long 

ago if you were me. I would bet my life on it."
36

effectively. The judge, who had also been the trial judge,

denied the motion without holding an evidentiary hearing. On 

appeal, the defendant argues that the judge erred in denying the 

defendant's motion without holding an evidentiary hearing.

A judge may rule on a motion for a new trial, without an 

evidentiary hearing, if no substantial issue is raised in the 

motion or affidavits. Upton, 484 Mass. at 161. "In determining 

whether a substantial issue exists, 'a judge considers the 

seriousness of the issues raised and the adequacy of the 

defendant's showing on those issues.'" Id. at 162, quoting 

Commonwealth v. Barry, 481 Mass. 388, 401, cert. denied, 140 

S. Ct. 51 (2019). In terms of the first prong, there is no 

dispute. "A claim of ineffective assistance of counsel . . . 

readily qualifies as a serious issue." Commonwealth v. Lys, 481 

Mass. 1, 6 (2018), quoting Commonwealth v. Denis, 442 Mass. 617, 

629 (2004).

Turning next to the adequacy of the showing, "the 

defendant's submissions 'need not prove the [motion's] factual 

premise . . . but they must contain sufficient credible 

information to cast doubt on the issue.'" Upton, 484 Mass. at 

162, quoting Commonwealth v. Goodreau, 442 Mass. 341, 348 

(2004). "Where, as here, the motion judge is also the trial 

judge, he may use his 'knowledge and evaluation of the evidence 

at trial in determining whether to decide the motion for a new 
37

trial without an evidentiary hearing.'" Commonwealth v. Riley, 

467 Mass. 799, 826 (2014), quoting Commonwealth v. Wallis, 440 

Mass. 589, 596 (2003). "We review a judge's decision to deny a 

motion for a new trial without holding an evidentiary hearing 

'for a significant error of law or other abuse of discretion'"

(citation omitted). Upton, supra.

The judge did not abuse his discretion. Because the judge 

also had presided over the trial, he was able to observe how the 

defendant and his trial counsel interacted. What he observed 

indicates that any communication issues were likely of the 

defendant's own making.13 For example, during a status 

conference, the defendant's trial counsel informed the judge 

that he had just learned, by receipt of a package from the 

Office of Bar Counsel, that the defendant had filed a complaint 

against him. Trial counsel was unaware whether the defendant 

wanted to continue being represented by him. When asked by the 

judge about this issue, the defendant expressed his interest in 

continuing to be represented because, since he had submitted his 

complaint, he had witnessed the effectiveness of his counsel. 

The defendant then opted to withdraw the complaint, 

13 By the conclusion of his trial, the defendant had been 

represented by two attorneys (one as full trial counsel and

another initially as standby counsel and then also as full trial 

counsel), each attorney had moved to withdraw, and the defendant 

had moved pro se to dismiss his counsel.
38

acknowledging that his own stubbornness likely factored into the 

friction between him and his attorney.

Although the defendant stated in an affidavit in support of 

his motion for a new trial that he had felt anxious and fearful

toward his trial counsel, the judge did not credit these 

assertions. Nor, for that matter, did the judge have to credit 

them. See Commonwealth v. Marrero, 459 Mass. 235, 241 (2011), 

quoting Commonwealth v. Lucien, 440 Mass. 658, 672–673 (2004) 

("The judge was entitled to reject summarily any claim supported 

only by the defendant's self-serving affidavits, and infer from 

his own observation of the defendant and counsel at trial that 

they were conferring over precisely the matter the defendant now

claims was never discussed"). We thus discern no error.

4. Review under G. L. c. 278, § 33E. Finally, the 

defendant asks this court to exercise its discretion under G. L. 

c. 278, § 33E, either to "order a new trial" or to "direct the 

entry of a verdict of a lesser degree of guilt, and remand the 

case to the superior court for the imposition of sentence." To 

this end, the defendant argues that a combination of mental 

illnesses, substance use disorders, and trauma indicate that the 

killing reflected spontaneity, not premeditation.14 We disagree.

14 Specifically, the defendant has a history of obsessive 

compulsive disorder, posttraumatic stress disorder, dysthymic 

disorder, alcohol dependence, and narcissistic, borderline, and 

passive aggressive personality traits. He has a history of 
39

The defendant's mental illnesses, although serious, do not 

demonstrate that he was "driven by [his] mental condition" alone 

to kill the victim. Commonwealth v. Colleran, 452 Mass. 417, 

434 (2008). See Commonwealth v. Concepcion, 487 Mass. 77, 95 

(2021) ("Mental illness alone is generally insufficient to 

support a verdict reduction under G. L. c. 278, § 33E"). On the 

contrary, rather than a "bolt from the blue," the victim's death 

was preceded by growing hostilities between her and the 

defendant. Compare Colleran, supra at 433 ("There appears to 

have been no hostile relationship between the defendant and the 

victim"); Commonwealth v. Dalton, 385 Mass. 190, 196-197 (1982) 

(verdict reduced to murder in second degree where defendant and 

victim had good relationship and no motive was apparent). These 

tensions culminated in a frantic emergency telephone call from 

the victim followed by her throat being slashed and her death. 

Amidst these developments, a jury could have found that the 

defendant formed the intent to cause the victim's death. See 

Commonwealth v. Robinson, 482 Mass. 741, 746 (2019), quoting 

Commonwealth v. Chipman, 418 Mass. 262, 269 (1994) ("The law 

recognizes that a plan to murder may be formed within a few 

seconds").

suicidal ideations and attempts to commit suicide, and had been 

prescribed four medications to help manage his mental health. 

The defendant also reported a history of homelessness and being 

the victim of two rapes that went unprosecuted.
40

We have reviewed the entire record of this case pursuant to 

our responsibilities under G. L. c. 278, § 33E. We conclude 

that there is no basis for reducing the defendant's sentence on 

the murder conviction or ordering a new trial.

Judgment affirmed.

Order denying motion for

 a new trial affirmed.