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SJC-10075

COMMONWEALTH vs. PABLO VARGAS.

Hampden. March 11, 2016. - August 30, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.1

Homicide. Constitutional Law, Admissions and confessions, 

Voluntariness of statement, Waiver of constitutional 

rights, Assistance of counsel, Public trial. Due Process 

of Law, Assistance of counsel, Interpreter. Evidence, 

Admissions and confessions, Voluntariness of statement, 

Hearsay. Waiver. Telephone. Defense of Others. SelfDefense. Interpreter. Practice, Criminal, Admissions and 

confessions, Voluntariness of statement, Waiver, Assistance 

of counsel, Instructions to jury, Hearsay, Motion to 

suppress, New trial, Interpreter, Public trial, Capital 

case.

Indictment found and returned in the Superior Court 

Department on November 2, 2004.

A pretrial motion to suppress evidence was heard by Daniel 

A. Ford, J.; the case was tried before Francis R. Fecteau, J.;

and a motion for a new trial, filed on December 23, 2013, was 

heard by C. Jeffrey Kinder, J., and a motion for reconsideration 

was also heard by him.

 

1 Justice Cordy participated in the deliberation on this 

case and authored this opinion prior to his retirement. Justice 

Spina participated in the deliberation on this case prior to his 

retirement.
2

John M. Thompson for the defendant.

Katherine E. McMahon, Assistant District Attorney, for the 

Commonwealth.

CORDY, J. There is no dispute that on the night of 

September 23, 2004, the victim, Tremayne King, was killed by the 

defendant, Pablo Vargas. The defendant stabbed the victim eight 

times during an altercation at the residence of the victim's 

estranged wife, Yanira Rodriguez, who was the defendant's girl

friend. At trial, the defendant sought to rebut the charge of 

murder in the first degree on the theory of self-defense, 

alleging that he fought and killed the victim because he feared 

for his life.

On May 24, 2006, a Hampden County jury convicted the 

defendant of murder in the first degree on a theory of extreme 

atrocity and cruelty, rejecting the Commonwealth's alternative 

theory of premeditation. In December, 2013, the defendant moved 

for a new trial, which was denied, as was his motion for 

reconsideration thereof.

On appeal from his conviction and from the denial of his 

motion for a new trial, the defendant claims that (1) his 

statement made during police questioning shortly after the 

altercation should have been suppressed; (2) the trial judge 

erred in excluding relevant so-called Adjutant evidence of the 

victim's history of violence, see Commonwealth v. Adjutant, 443 
3

Mass. 649, 664 (2005); (3) the judge erred in admitting certain 

testimony concerning the defendant's statements made to a third 

party; (4) the judge erred in denying his request for an 

instruction on defense of another; (5) the judge's jury 

instructions on malice, self-defense, and voluntary manslaughter 

were erroneous and created a substantial likelihood of a 

miscarriage of justice because they allowed the jury to convict 

the defendant without considering mitigating circumstances; (6) 

a qualified interpreter should have been appointed to assist 

with the testimony of Rodriguez, who was a witness to the 

altercation; (7) his right to a public trial was violated when 

the court room was closed during jury selection; (8) trial 

counsel was ineffective; and (9) evidence that was newly 

discovered after trial warranted the granting of a new trial. 

The defendant also requests that we exercise our authority under 

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

of murder in the first degree to voluntary manslaughter.

Although our review of the record does not reveal any 

errors that would warrant a new trial, the circumstances of this 

case persuade us that a reduction of the defendant's conviction 

from murder in the first degree to voluntary manslaughter is 

more consonant with justice. We therefore vacate the 

defendant's conviction of murder in the first degree and his 

sentence, and we remand the case to the Superior Court for the 
4

entry of a verdict of guilty of voluntary manslaughter and for 

imposition of sentence.

Background. We recite the facts in the light most 

favorable to the Commonwealth, reserving certain details for our 

analysis of the issues raised on appeal.

At 11:48 P.M. on September 23, 2004, Springfield police 

Detective Norman Shink and three other officers arrived at an 

apartment building on Bristol Street in Springfield. Shink saw 

a man, who was later identified as the defendant, in front of an

apartment on the second floor. The defendant lifted his shirt, 

revealing a bloody knife tucked into his waistband, and said, 

"This is the knife I used to stab him. Take it. Take it. He 

was beating me real bad. I had no choice. It was selfdefense."

Rodriguez lived in the apartment on Bristol Street with her 

three children. She was married to the victim, but the two were 

estranged. The victim had enlisted in the National Guard, and 

on July 10, 2004, was assigned to Fort Drum, in New York, to 

train for deployment to Iraq. At that time, the victim and 

Rodriguez separated. The victim left a number of personal 

belongings stored at the apartment, including several handguns.

In August, 2004, the defendant began staying at Rodriguez's 

apartment, and he was there on the evening of September 23. 

That day, Rodriguez received a telephone call from the victim, 
5

who had received a pass from the National Guard and planned to 

return to the apartment to retrieve his belongings. The victim 

did not specify when he would be arriving.2

The defendant was present when Rodriguez spoke with the 

victim. She discussed the conversation with him and encouraged 

him to leave before the victim arrived. The defendant did not 

do so.

At approximately 11:30 P.M. that evening, Rodriguez was 

sitting on a couch watching television in the living room. She

heard a sound at the door and observed a hand reaching in 

through the partially opened door and sliding the chain lock up 

to release it and gain access to the apartment. At this point, 

the victim burst in and attacked her, hitting her with his fists 

as she covered her face with her arms. The defendant, who was 

in the bedroom at the time, came into the living room and said 

something to the victim. The victim ran at the defendant, 

knocking him back into the bedroom and jumping on top of him. 

The defendant shouted for Rodriguez to telephone the police, and 

Rodriguez ran to an apartment next door. One of the occupants 

 

2 On September 23, the victim drove with a fellow soldier to 

Springfield from Fort Drum. The soldier was called as a witness 

for the Commonwealth. He testified that while en route, the 

victim made two telephone calls. The first was to a female (who 

the witness did not know), to whom the victim stated falsely

that he was not coming to Springfield that day because his pass 

had been delayed. In the second call, he told the person that 

he was coming home to get divorce papers, pick up his weapons, 

and surprise his wife.
6

answered the door; Rodriguez begged him to telephone 911 and 

stated that the victim had a firearm, although she had not seen 

the victim with any weapon. When she returned to her apartment, 

Rodriguez saw the victim lying on the couch, bleeding. No 

firearm was found in the victim's possession.

The victim went into cardiac arrest and died while being 

transported to the hospital. A medical examiner determined that 

of the eight stab wounds sustained by the victim, four had been 

lethal. One wound to the victim's left upper arm was defensive.

Discussion. 1. Motion to suppress statement. The 

defendant was arrested and interrogated by Sergeant Roy Carter 

and Shink at the Springfield police department in the early 

hours of September 24, 2004. The interview was recorded.3,4

 

3 During the interview, the defendant shared his version of 

events, including that he saw the victim carrying a gun and that 

he used the knife in self-defense. The defendant described the 

gun as black and gray, which was similar to one of the two guns 

found by police during a search of the victim's personal 

belongings (which had been stored at the apartment) and 

described to the jury as "two-tone." The defendant's statement 

indicated the following: A man whom the defendant did not 

recognize barged into Rodriguez's apartment while the defendant 

and Rodriguez were sitting on the couch. The man attacked 

Rodriguez and then proceeded to charge at the defendant. The 

man hit the defendant, tackled him, and jumped on top of him. 

The defendant saw the man had a gun, "freaked out," and grabbed 

a knife to defend himself. The defendant told the man to stay 

back, and when he did not do so, the defendant began to swing 

the knife. The two fell to the ground, at which point the 

defendant noticed that the man began to lose strength due to 

being stabbed.
7

Prior to questioning, Carter read and presented the 

defendant with the Miranda rights. See Miranda v. Arizona, 384 

U.S. 436 (1966). When Carter instructed the defendant as to his 

right to an attorney,5 the defendant asked, "Is there a lawyer 

here present?" Carter responded, "No, there isn't." Carter 

then proceeded with his presentation of the Miranda rights, 

including that the Commonwealth would provide a lawyer if the 

defendant could not afford one. Carter read the Miranda

warnings for a second time, the defendant initialed the warnings 

as they were read, and the defendant indicated that he wished to 

speak to police.

 

4 The recording was played at trial. In its closing 

argument, the Commonwealth characterized the defendant's 

statement as self-serving, and specifically attempted to 

undermine the credibility of the self-defense theory by 

highlighting various inconsistencies between the statement and 

reality. The prosecutor stated: "One of the most important 

pieces of evidence you will have in the jury deliberation is a 

copy of the [recording] of the statement taken by the police at 

the police station."

5 The Miranda warning form for the Springfield police 

department, see Miranda v. Arizona, 384 U.S. 436 (1966), 

contained an error as to the right to counsel warning. The 

document provided: "You have the right to talk for advice 

before we ask you any questions and to have him with you during 

questioning." Sergeant Roy Carter verbally corrected this 

error, as his instruction was, "[Y]ou have the right to talk to 

a lawyer for advice before we ask you any questions and you can 

have him with you during questioning."

The form also presented the defendant with the Miranda 

rights prior to informing him of his right to use a telephone.
8

The police then notified the defendant of his right to use 

the telephone. The defendant indicated that he intended to use 

the telephone, and Carter told him that he would be allowed to 

do so. The defendant checked the box indicating that he had 

used the telephone, and signed that he had been notified of his 

rights. The space on the form for timing of the defendant's 

telephone call was left blank, and the defendant never made a 

telephone call.

Prior to trial, the defendant moved to suppress his 

statement. He argued that the statement was obtained in 

violation of his Fifth Amendment rights,6 specifically that (1) 

he had not made a voluntary waiver of his Miranda rights due to 

his lack of language skills; (2) his waiver was not knowing 

because of the faulty Miranda warning; and (3) his statement, 

 

6 The defendant's motion did not specifically address the 

defendant's cognate protections under art. 12 of the 

Massachusetts Declaration of Rights. The Commonwealth argues 

that any arguments under art. 12 have therefore been waived. 

See Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 

(2004) ("A pretrial motion shall state the grounds on which it 

is based and shall include in separately numbered paragraphs all 

reasons, defenses, or objections then available, which shall be 

set forth with particularity"). See also Commonwealth v. Mubdi, 

456 Mass. 385, 389 (2010) (under rule 13 [a] [2], affidavits

"must be sufficiently detailed to give fair notice to the 

prosecution"). Article 12 was, however, addressed at the motion 

to suppress hearing. The defendant's art. 12 claims are not 

waived; issues of notice are irrelevant, as art. 12 guarantees 

the same rights as does the Fifth Amendment, see Commonwealth v. 

Clarke, 461 Mass. 336, 337 (2012), and the motion judge relied 

on cases interpreting both the Massachusetts Declaration of 

Rights and the United States Constitution in denying the motion 

to suppress.
9

"Is there a lawyer here present?" constituted an invocation of 

his right to counsel, which invocation was not scrupulously 

honored.7 At an evidentiary hearing on the issue, the defendant, 

Carter, and Shink testified. Carter and Shink both testified 

that the defendant was eager to share his version of events. 

The judge credited the officers' testimony, and, after reviewing 

the recording of the interview, denied the motion. The judge 

found that the defendant had been advised of his rights, that he 

had a sufficient command of English to understand and waive 

those rights, that he had been informed of his statutory right 

to use the telephone, and that he had not made an unambiguous 

request for counsel.

On appeal, the defendant challenges the denial of his 

motion to suppress on three grounds: (1) the police did not 

scrupulously honor his invocation of his art. 12 right to 

counsel; (2) his statutory right to use the telephone, under, 

G. L. c. 276, § 33A, was intentionally violated; and (3) he did 

not make a knowing and voluntary Miranda waiver.

 

7 The defendant's motion to suppress his statement did not 

specifically set forth the purported G. L. c. 276, § 33A, 

violation of his telephone rights. See Mass. R. Crim. P. 13 (a) 

(2). However, the claim that G. L. c. 276, § 33A, was violated

was addressed by the motion judge, and a suppression challenge 

on that ground is therefore not waived. See Mass. R. Crim. P. 

13 (a) (2) ("Grounds not stated which reasonably could have been 

known at the time a motion is filed shall be deemed to have been 

waived, but a judge for cause shown may grant relief from such 

waiver").
10

a. Statutory right to use telephone. Under G. L. c. 276, 

§ 33A, "an arrested person [must] be informed of his right to 

use the telephone as soon as reasonably practicable after 

arrival at the station." Commonwealth v. Bouchard, 347 Mass. 

418, 420 (1964). "The exclusionary rule applies to intentional 

deprivation by police of a defendant's rights under G. L. 

c. 276, § 33A." Commonwealth v. Hampton, 457 Mass. 152, 155 

(2010).

There was not an intentional deprivation of the defendant's 

statutory telephone rights. The defendant was informed of his 

right to use the telephone after waiving his Miranda rights. 

Carter asked the defendant if he "intend[ed] to use the 

[tele]phone." The defendant said, "Yes." Some confusion 

followed, as there was no indication that the defendant wanted 

to use the telephone at that moment or after he spoke with 

police. The record does reflect, however, that the defendant 

was eager to speak to police. In any event, although the 

defendant was not informed of his right to use the telephone for 

at least one hour and twenty-five minutes after he had been

brought to the station,

8 "he was informed before the inculpatory 

 

8 Carter testified that the defendant arrived at the police 

station at 12:20 A.M. The defendant was handcuffed to a chair 

in the detective bureau. The recording of the interview 

indicated that it began at 1:40 A.M., and, roughly five minutes 

into the interview, the defendant was informed of his right to 

use the telephone.
11

statement was given." Commonwealth v. Espada, 450 Mass. 687, 

702 (2008). Contrast Commonwealth v. Jones, 362 Mass. 497, 503 

(1972) (statement suppressed where police waited more than one 

hour to inform defendant of right to make telephone call and 

damaging confrontation occurred in interim period). There was 

no error.

b. Right to counsel. The defendant claims that his 

question, "Is there a lawyer here present?" asked while Carter 

was reading him his Miranda rights, was an invocation of his 

right to counsel, and should have resulted in the cessation of 

the interrogation. His subsequent statements, he argues, should 

therefore have been suppressed. We disagree.

Miranda, 384 U.S. at 444, requires that "[p]rior to any 

questioning, the [suspect] must be warned that he has a right to 

remain silent, that any statement he does make may be used as 

evidence against him, and that he has a right to the presence of 

an attorney, either retained or appointed." Miranda "protects 

both Fifth Amendment rights and rights guaranteed under art. 12" 

(citation omitted). Commonwealth v. Clarke, 461 Mass. 336, 345

(2012). Once a suspect invokes his or her right to counsel, 

"all interrogation must cease until counsel is made available, 

unless the [suspect] himself [or herself] reinitiates further 

communication with the police." Commonwealth v. Hoyt, 461 Mass. 

143, 149 (2011)
12

The defendant's question concerning whether an attorney was 

present at the police station was, at best, ambiguous as to 

whether he was invoking his right to counsel.9 In response, 

Carter properly sought to clarify any ambiguity by repeating 

that the defendant had a right to counsel prior to questioning, 

advising him that he would be provided with an attorney if he 

could not afford one, and asking him if he understood those 

rights. The defendant told Carter that he did, and proceeded to 

initial the document to indicate his acknowledgement and then to 

assent to police questioning. There was no error in the judge's 

ruling that the defendant had not invoked his right to counsel.

c. Knowing and voluntary waiver of rights. The defendant 

twice heard and then signaled comprehension of his Miranda

rights. When the defendant asked if there was a lawyer present 

during the reading of his rights, the police responded 

accurately and promptly. Prior to questioning, Carter verified 

that the defendant was not intoxicated and that he could 

 

9 The suspect "must articulate his desire to have counsel 

present sufficiently clearly that a reasonable police officer in 

the circumstances would understand the statement to be a request 

for an attorney." Davis v. United States, 512 U.S. 452, 459

(1994). See Commonwealth v. Vincent, 469 Mass. 786, 796 (2014) 

("defendant's statements concerning possibly needing or wanting 

a lawyer were ambiguous and equivocal, and would not reasonably 

be understood in the circumstance to constitute an invocation of 

the right to counsel" [quotations and citation omitted]).
13

comprehend the English language.10 The motion judge found and 

the record reflects that the defendant was eager to share his 

version of the events with police. We note also that the 

defendant's statement to the police was self-serving, in that it 

supported his theory of defense. There was no error, and the 

denial of the defendant's motion to suppress is affirmed.

2. Adjutant evidence. At trial, the defendant sought to 

introduce, under Adjutant, 443 Mass. at 664, evidence concerning 

the victim's history of violence in order to show that the 

victim was the initial aggressor in the altercation that 

resulted in the victim's death. That evidence would largely 

have consisted of testimony concerning the victim's prior 

violence toward Rodriguez. The trial judge determined that the 

issue as to the initial aggressor was not in dispute, and did 

not allow the evidence to be admitted for that purpose.11

 

10 The defendant indicated that he had trouble reading and 

writing English. However, the defendant told Carter that he had 

secured his "GED," which we interpret as a reference to passing 

a general education development test, and Carter testified at 

the motion to suppress hearing that the defendant had "[n]o 

difficulty at all" with the English language. The motion judge 

found that "the defendant is fluent in English" and that 

"language was simply not an impediment to the interview that 

took place."

11 Rodriguez was, however, allowed to testify to violent 

acts committed by the victim against her, to the extent that she 

had conveyed those acts to the defendant, which she testified 

she had. The trial judge instructed the jury:
14

"[W]here the identity of the first aggressor is in dispute 

and the victim has a history of violence, . . . the trial judge 

has the discretion to admit evidence of specific acts of prior 

violent conduct that the victim is reasonably alleged to have 

initiated, to support the defendant's claim of self-defense." 

Adjutant, 443 Mass. at 664. The definition of "first aggressor" 

pertains not only to "the person who initiated the 

confrontation, but also the person who initiated the use or 

threat of deadly force, as 'resolution of both issues may assist 

the jury in deciding whether the prosecution has met its burden 

of proving that the defendant did not act in self-defense.'" 

Commonwealth v. Camacho, 472 Mass. 587, 592 (2015), quoting 

Commonwealth v. Chambers, 465 Mass. 520, 529-530 (2013).

Evidence of the victim's history of violence would not have 

bolstered the defendant's case, as the question of initial 

aggressor was never at issue. There was no conflicting evidence 

as to the series of events leading up to the victim's death. 

The only accounts of the altercation came from the defendant 

(through his statement to police) and Rodriguez, who was called 

as a Commonwealth witness, both of which were consistent in 

 

"You are permitted to hear these out-of-court 

statements not for the truth of the matters contained, 

but for the fact of a conversation . . . [The 

information] may be considered by you on the issue of 

the defendant's state of mind or his state of 

knowledge concerning those aspects, those events."
15

their portrayal of the victim as the initial aggressor.12 The 

jury also heard substantial evidence supporting the defendant's 

self-defense theory: the victim was significantly larger than 

the defendant;13 and the victim had been trained in unarmed 

combat, including the incapacitation and killing of individuals, 

with or without weapons.14 Based on that evidence, and given 

 

12 Rodriguez's testimony as to the portion of the 

altercation that she witnessed included the following exchange 

on cross-examination:

Q.: "[A]fter your husband, burst into that apartment on 

the night of his death, you said that he grabbed [the 

defendant,] correct?"

A.: "Yes, sir."

. . .

Q.: "Was your husband on top of him?"

A.: "Yes, sir."

Q.: "Did your husband have his hand on [the defendant]?"

A.: "Yes, sir."

Q.: "Was [the defendant] able to get away from [the 

victim]?"

A.: "No, sir."

13 The victim was six feet tall and approximately 180

pounds, while the defendant was five feet, six inches tall and

weighed 114 pounds when he was booked.

14 When the judge charged the jury, he instructed that 

"deadly force" can be used in self-defense where "the person 

using the weapon or deadly force [has] a reasonable apprehension 

of great bodily harm or death and a reasonable belief that no 

other means would suffice to prevent such harm." The jury were 
16

that there was no deadly weapon found with the victim, the 

assumption required to make the defendant's self-defense case 

was that the victim immediately used deadly force (with his 

hands and body) when the altercation began, and a deadly weapon 

was not necessary. The defendant's proposed history of violence 

evidence would therefore have been both cumulative and 

unnecessary in making a case of self-defense, see Adjutant, 443 

Mass. at 663, and there was no "great[] danger that the 

exclusion of the evidence concerning the victim's violent acts" 

prejudiced the defendant. Camacho, 472 Mass. at 593.15

 

allowed to "consider evidence of the relevant physical 

capability of the combatants, how many persons were involved on 

each side, the characteristics of any weapons used, the 

availability of rooms to maneuver, or any other factors . . . 

relevant to the reasonableness of the defendant's conduct under 

the circumstances."

15 The defendant argues that, in its closing, the 

Commonwealth put at issue the initial aggressor question. 

During closing arguments, the prosecutor described the defendant 

and Rodriguez's versions of events as "wildly exaggerated" and 

posed an alternative series of events, indicating that the 

defendant may have been waiting for the victim so as to "ambush 

him" with a knife. The prosecutor went on to say that "[c]ommon 

sense should tell you [Rodriguez and the defendant] were waiting 

and [the defendant] was prepared and ready for the eventuality 

that [the victim] would walk in and be upset to find the 

defendant and his wife." This postulation did not change the 

evidence presented in terms of who was the initial aggressor. 

And, to the extent that the Commonwealth's "ambush" argument was 

intended to persuade the jury that the murder was premeditated, 

the jury rejected that theory.
17

3. Jury instructions.

16 The jury were instructed as to the 

prerequisites for a guilty finding of murder in the first 

degree, murder in the second degree, and manslaughter. As to 

murder in the first degree, the jury were instructed on the 

theories of deliberate premeditation and extreme atrocity or 

cruelty. The jury returned a verdict convicting the defendant 

or murder in the first degree under the theory of extreme 

atrocity or cruelty. The defendant now claims error with the 

judge's decision, over his objection, not to instruct the jury 

on defense of another, and, for the first time, objects to 

various portions of the self-defense and homicide instructions, 

particularly those related to malice and voluntary manslaughter.

a. Defense of another. The defendant argues that the 

judge erred by refusing to instruct the jury on the question of 

defense of another, given that he intervened after the victim's 

attack on Rodriguez.17 Because the defendant's exception was 

 

16 The homicide jury instructions in this case were based on 

the 1999 Model Jury Instructions on Homicide.

17 In declining to instruct the jury on defense of another, 

the judge reasoned:

"The way I was looking at the evidence, I don't think 

it supports it because the evidence would indicate that the 

defendant appeared not to have armed himself until he 

himself was being attacked and wasn't intervening in the 

attack on another while armed. So I think the evidence 

tends to support self-defense, not defense of another. It 

may have initiated that way, the action may have started 
18

preserved, we review the defendant's claim for prejudicial 

error. See Commonwealth v. Allen, 474 Mass. 162, 168 (2016). 

Defense of another is warranted if "(a) a reasonable person 

in the actor's position would believe his intervention to be 

necessary for the protection of the third person, and (b) in the 

circumstances as that reasonable person would believe them to 

be, the third person would be justified in using such force to 

protect himself." Commonwealth v. Scott, 463 Mass. 561, 576 

(2012), quoting Commonwealth v. Young, 461 Mass. 198, 208

(2012). "The reasonableness of the belief is from the point of 

view of the actor and not of the third party, such that whether 

the third party was actually entitled to use self-defense, or 

believed the use of force to be necessary, is not at issue." 

Scott, supra. "The actor's justification is lost if he uses 

excessive force, e.g., aggressive or deadly force unwarranted 

for the protective purpose." Id., quoting Commonwealth v. 

Martin, 369 Mass. 640, 649 (2012).

The judge did not err in finding that the defendant was not 

entitled to an instruction on the use of force in defense of 

Rodriguez. Even viewing the evidence in the light most 

favorable to the defendant, Scott, 463 Mass. at 577, the 

evidence does not support an objective basis on which a 

 

that way, but in terms of self-defense, the deadly force, I 

think that was done."
19

reasonable person would have believed that the defendant was 

justified in using deadly force in defense of Rodriguez. The 

evidence tended to show that, when the defendant stabbed the 

victim, Rodriguez had left the apartment.

b. Other jury instruction issues. The defendant, for the 

first time on appeal, claims error as to various portions of the 

jury instructions, particularly as to flaws in the self-defense 

and homicide instructions. Because the defendant did not object 

to the jury instructions, we review them to determine whether 

there was a substantial likelihood of a miscarriage of justice. 

See Commonwealth v. Valentin, 474 Mass. 301, 305 (2016). When 

reviewing jury instructions, we "evaluate the instruction as a 

whole, looking for the interpretation a reasonable juror would 

place on the judge's words" (citation omitted). Commonwealth v. 

Young, 461 Mass. at 207. We do not consider words from the 

instructions in bits and pieces or in isolation from one 

another. See id. If there is an error in the jury 

instructions, a new trial is called for unless we are 

"substantially confident that, if the error had not been made, 

the jury verdict would have been the same." Commonwealth v. 

Penn, 472 Mass. 610, 626 (2015), cert. denied, 136 S. Ct. 1656 

(2016), quoting Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 

(1988).
20

i. Self-defense. The defendant takes issue with the 

following instruction: "A person may not use force in selfdefense until he has availed himself of all proper means to 

avoid physical combat." The defendant argues that, under the 

circumstances of this case, the duty to retreat instruction 

should have been limited to the time frame of the face-to-face 

confrontation. The flaw was exacerbated because in closing 

argument, the prosecutor asked if the defendant did "all he 

could to avoid physical combat when he told [Rodriguez's 

neighbor] he wasn't leaving even though they knew [the 

defendant] was coming home[.]" This question, the defendant 

argues, in conjunction with the instruction, created the 

implication that if the defendant did not leave when he learned 

that the victim was coming, he was not justified in using any 

force to defend himself.

We find no error with the instruction, which tracked the 

Model Jury Instructions on Homicide 55-56 (1999), and clearly 

and correctly conveyed the applicable law. The judge instructed 

the jurors that the Commonwealth had the burden of proving that 

the defendant did not act in self-defense and that the time

frame in which the defendant must have been in fear of bodily 

harm was during the altercation. Specifically, the jury were 

instructed that "[t]he proper exercise of self-defense arises 

from necessity and ends when necessity ends."
21

ii. Homicide. The judge instructed the jury on murder in 

the first degree (on theories of deliberate premeditation and 

extreme atrocity or cruelty) and on murder in the second degree. 

As to both, the judge instructed on the prerequisite that the 

Commonwealth must prove malice, and on the possibility of a 

justified killing in self-defense. See Model Jury Instructions 

on Homicide 8, 12, 20-21 (1999). During the course of the 

instructions on murder in the first and second degrees, the 

judge instructed the jury three times that they are "permitted"

but not required "to infer that a person who intentionally uses 

a dangerous weapon on another person is acting with malice." 

The dangerous weapon instruction was also consistent with the 

Model Jury Instruction on Homicide 61 (1999). The judge then 

instructed the jury on voluntary manslaughter and the 

circumstances that mitigate murder to manslaughter. He stated:

"Now going to move to the third form of homicide as a 

lesser included offense within the charge of murder, 

and that being manslaughter. In order to prove that 

the defendant acted with malice, the Commonwealth must 

prove beyond a reasonable doubt the absence of certain 

mitigating circumstances. Mitigating circumstances 

are circumstances which lessen a defendant's 

culpability for an act. Both are crimes of murder, 

and voluntary manslaughter requires proof of an 

unlawful killing, but the killing may be the crime of 

voluntary manslaughter if it occurred under mitigating 

circumstances. So that if the Commonwealth cannot 

prove beyond a reasonable doubt that the defendant 

acted with malice, in order to obtain a conviction of 

murder, the Commonwealth must prove beyond a 

reasonable doubt the absence of these mitigating 

circumstances. Based on the evidence of this case, 
22

mitigating circumstances you must consider are heat of 

passion upon a reasonable provocation; second, heat of 

passion induced by sudden combat; third, excessive 

force -- excessive use of force in self-defense." 

(Emphasis added to highlight variances from the Model 

Jury Instruction on Homicide 27 [1999]18).

After introducing voluntary manslaughter, the judge 

outlined each of the three mitigating circumstances, the absence 

of which the Commonwealth had to prove. The third of those 

circumstances was excessive use of force in self-defense. The 

instruction as to the excessive use of force in self-defense 

mitigating circumstance was as follows:

"[T]he Commonwealth has the burden of proving beyond a 

reasonable doubt the absence of self-defense. If the 

Commonwealth fails to prove beyond a reasonable doubt 

the absence of self-defense, your verdict must be not 

guilty with respect to the crimes of murder or 

voluntary manslaughter. If, however, the Commonwealth 

does prove excessive force in an effort to defend 

himself, you'd be justified in finding the defendant 

guilty of voluntary manslaughter."

 

18 The model jury instruction provides:

"In order to prove that the defendant acted with 

malice, the Commonwealth must prove beyond a reasonable 

doubt the absence of certain mitigating circumstances. 

Mitigating circumstances are circumstances which lessen a 

defendant's culpability for an act. Both the crimes of 

murder and voluntary manslaughter require proof of an 

unlawful killing, but the killing may be the crime of 

voluntary manslaughter if it occurred under mitigating 

circumstances so that the Commonwealth cannot prove beyond 

a reasonable doubt that the defendant acted with malice. 

In order to obtain a conviction of murder, the Commonwealth 

must prove beyond a reasonable doubt the absence of [these] 

mitigating [circumstances]" (emphasis added).

Model Jury Instructions 27 (1999).
23

The defendant argues that errors permeated the jury 

instructions and allowed the jury to convict the defendant of 

murder in the first degree without considering any of the 

mitigating circumstances, essentially removing manslaughter as 

an option for the jury, and that such errors warrant a new 

trial. We disagree.

We note first that each of the distinct jury instructions, 

taken alone, were not erroneous. The use of a deadly weapon 

instruction, interposed three times during the instructions on 

murder in the first and second degrees, was consistent with the 

model instructions both in terms of form and location. Model 

Jury Instruction on Homicide 8, 12, 21, 61. We have repeatedly 

approved of a similar instruction that "tells[s] the jury they 

may, rather than they must, infer malice from use of a dangerous 

weapon." Commonwealth v. Young, 461 Mass. at 212, and cases 

cited. The deadly weapon instruction in this case, which 

"permitted" but did not "require[]" the jury to infer malice 

from the use of a dangerous weapon, was not erroneous.

As noted above, the general description of the manslaughter 

charge varied in minor, though not insignificant, ways from the 

model instruction. The sentence, "So that if the Commonwealth 

cannot prove beyond a reasonable doubt that the defendant acted 

with malice, in order to obtain a conviction of murder, the 

Commonwealth must prove beyond a reasonable doubt the absence of 
24

these mitigating circumstances," taken alone, seems to imply 

both that (1) a finding of malice would preempt the 

consideration of mitigating factors and require a finding of 

murder, and (2) the Commonwealth could prove murder in the first 

degree without showing malice, but instead proving that there 

were no mitigating circumstances. We do not, however, review 

the words of an instruction in isolation from each other, 

particularly where we are reviewing the instructions for a 

substantial likelihood of a miscarriage of justice. See 

Commonwealth v. Dyer, 460 Mass. 728, 749 (2011), cert. denied, 

132 S. Ct. 2693 (2012). See also Commonwealth v. Oliveira, 445 

Mass. 837, 844 (2006). Just two sentences prior, the judge 

instructed, "In order to prove that the defendant acted with 

malice, the Commonwealth must prove beyond a reasonable doubt 

the absence of certain mitigating circumstances." The 

instruction clearly delineates the proper rule: malice and 

mitigating circumstances are mutually exclusive. See 

Commonwealth v. Boucher, 403 Mass. 659, 661-662 (1989). And 

earlier, the judge had specifically instructed that, in order to 

prove murder in the first degree, "[t]he second element the 

Commonwealth must prove beyond a reasonable doubt is that the 

killing was committed with malice." The jury were instructed 

that the absence of mitigating circumstances alone does not 

warrant the return of a verdict of murder in the first degree.
25

The use of excessive force in self-defense instruction was 

consistent with the Model Jury Instruction on Homicide 30-31, 

and is substantially similar to the instructions given in 

Commonwealth v. Britt, 465 Mass. 87, 96 (2013), and Commonwealth

v. Bolling, 462 Mass. 440, 448 (2012). As in the present case, 

the defendants in those cases argued that the use of the 

permissive phrase "would be justified," as opposed to the 

mandatory "must," gave the jury the erroneous impression that, 

even if they found excessive use of force in self-defense, 

murder was still a possible verdict. See Britt, supra; Bolling, 

supra. We conclude, as we did in those cases, that the 

instruction in the present case, considered in its entirety, was 

not erroneous. See Britt, supra; Bolling, supra.

Finally, the instruction that the jury must convict the 

defendant of the most serious crime proved beyond a reasonable 

doubt was consistent with the model instruction and was not 

erroneous. See Model Jury Instructions on Homicide 65-66

(1999). We are also convinced that, taken as a whole, the 

instructions, although flawed, were not erroneous.

19,20 In the 

 

19 Because we conclude that the jury instructions were not 

erroneous, there is also no merit to the defendant's claim of 

ineffective assistance of counsel predicated on defense 

counsel's failure to object to these instructions.

20 The defendant also cites to Commonwealth v. Barnacle, 134 

Mass. 215, 216 (1883), for the proposition that the jury were 

not instructed that the victim need not be armed in order for 
26

future, we urge judges to follow the model jury instructions 

verbatim to avoid such flaws and ensure a smooth recitation of 

the jury charge.

4. Hearsay testimony. As part of the Commonwealth's case, 

the prosecutor elicited testimony from Rodriguez concerning an 

occasion in which she had shown the defendant one of the 

victim's handguns. When the defendant handled the handgun, he 

did so through his shirt. The prosecutor asked Rodriguez if the 

defendant indicated why he was holding the gun in that manner. 

Rodriguez, after first testifying that the defendant did not 

explain why he was doing so, reviewed her police statement and 

confirmed that she had told police that the defendant was 

holding the handgun in that manner in order to avoid getting 

fingerprints on the gun. The defendant objected various times 

during the line of questioning, and we assume, without deciding,

that he did so when the Commonwealth elicited Rodriguez's 

testimony about her police statement. On appeal, the defendant 

 

the defendant's use of deadly force to be justified. The record 

does not support this argument; the judge specifically 

instructed the jury:

"In considering the issue of reasonableness of any 

force used by the defendant, you may consider evidence of 

the relevant physical capabilities of the combatants, how 

many persons were involved on each side, the 

characteristics of any weapons used, the availability of 

rooms to maneuver, or any other factors you deem relevant 

to the reasonableness of the defendant's conduct under the 

circumstances."
27

claims that the testimony was impermissible hearsay and that it 

was a gratuitous attack on the defendant's character.

There was no error. The evidence was relevant to explain 

how the defendant was able to describe one of the defendant's 

guns. Moreover, the testimony was not hearsay, see Commonwealth

v. Cole, 473 Mass. 317, 324-325 (2015) (extrajudicial statements 

by party opponent are not hearsay); Mass. G. Evid. 

§ 801(d)(2)(A) (2016).

5. Motion for a new trial. In his motion for a new trial, 

the defendant argued that (1) his due process rights were 

violated when the trial judge did not appoint a qualified 

Spanish interpreter for Rodriguez; (2) his right to a public 

trial was violated when the court room was closed during jury 

selection; (3) he received ineffective assistance of counsel; 

and (4) there was newly discovered evidence that might have 

affected the outcome of his trial.21 The motion judge (who was 

not the trial judge) denied the motion.

"The decision to allow a motion for a new trial lies within 

the sound discretion of the judge and will not be reversed 

unless it is manifestly unjust or unless the trial was infected 

with prejudicial constitutional error" (citation 

omitted). Commonwealth v. Gorham, 472 Mass. 112, 117 (2015). 

 

21 The defendant also raised the suppression issue as a 

ground warranting a new trial. The motion judge found that this 

claim was waived as time barred.
28

Where an appeal from the denial of the defendant's motion for 

a new trial has been consolidated with his direct appeal from a 

conviction of murder in the first degree, we review both under 

G. L. c. 278, § 33E. See Espada, 450 Mass. at 697. Pursuant to 

G. L. c. 278, § 33E, we review the denial of the motion for a 

new trial "to determine whether there has been a significant 

error of law or other abuse of discretion, . . . and whether any 

such error creates a substantial likelihood of a miscarriage of 

justice" (quotations and citations omitted). Commonwealth v. 

Lally, 473 Mass. 693, 698 (2016).

a. Interpreter. Rodriguez, a native Spanish speaker, 

testified almost entirely in English.22,23 At one point during 

direct examination, defense counsel requested that the court 

inquire as to whether Rodriguez would like the assistance of an

interpreter. The judge determined that Rodriguez was not 

"showing so much difficulty with the language that she needs an 

interpreter."24 Instead, an interpreter was put on stand-by for 

 

22 Rodriguez also testified in English before the grand 

jury, and her police statements were in English (although they 

were made with the assistance of Spanish-speaking police 

officers). The first of those statements specifically indicated 

that Rodriguez "read[s], write[s] and understand[s] English."

23 During their deliberation, the jury requested a 

transcript of Rodriguez's testimony; the request was denied.

24 The judge also sustained several objections to leading 

questions posed by the prosecutor, noting at one point that "the 

witness hasn't demonstrated any need for prompts." When the 
29

the following day. When cross-examination began, the 

interpreter was made available to Rodriguez, the questions were 

posed to her in English, and she was allowed to use the 

interpreter's assistance as necessary.25 During the course of 

cross-examination, the interpreter assisted only on two 

instances. The defendant argues that the trial judge's refusal 

to allow Rodriguez to testify on cross-examination through an 

interpreter restricted his right to present a full defense, in 

violation of the Sixth Amendment to the United States 

Constitution and art. 12 of the Massachusetts Declaration of 

Rights.

By statute, "[a] non-English speaker . . . shall have a 

right to the assistance of a qualified interpreter who shall be 

appointed by the judge." G. L. c. 221C, § 2. "Non-English 

speaker" is defined as "a person who cannot speak or understand, 

or has difficulty in speaking or understanding, the English 

language, because he uses only or primarily a spoken language 

other than English." G. L. c. 221C, § 1. The party claiming a 

violation of G. L. c. 221C, § 2, bears the burden of proving 

 

issue was raised the following day at trial, the judge indicated 

that "[Rodriguez's] direct demeanor, to me, did not demonstrate 

a lot of difficulty understanding English."

25 Defense counsel inquired whether Rodriguez wanted the 

assistance of an interpreter, and Rodriguez indicated that she 

did. Rodriguez also indicated that she had some trouble 

understanding some of the questions on direct examination.
30

that the witness in question was a "non-English speaker." See 

Crivello v. All-Pak Mach. Sys., Inc., 446 Mass. 729, 735 (2006).

When the issue was raised as part of the defendant's motion 

for a new trial, the motion judge conducted an evidentiary

hearing, at which the defendant called Dr. Michael O'Laughlin, a 

certified court interpreter and the director of interpreter 

training at Boston University. O'Laughlin reviewed Rodriguez's 

testimony at trial and before the grand jury, her statements to 

police, and an interview conducted by appellate counsel; he also

conducted two independent standardized tests of Rodriguez's 

language skills in order to assess whether Rodriguez qualified 

as a non-English speaker.

O'Laughlin concluded that Rodriguez is a limited English 

proficient speaker, and that her English proficiency, when 

measured by standardized scores, is "intermediate high." 

According to the results of that test, Rodriguez "[c]an satisfy 

survival needs and routine work and social demands [and] handle 

work that involves following oral and simple written 

instructions in familiar and some unfamiliar situations. . . . 

As to listening comprehension, [she] understands conversations 

on most everyday subjects at normal speed when addressed 

directly, [but m]ay need repetition, rewording and slower 

speech. . . . [A]s to oral communication [she] [f]unctions 

independently in survival and many social and work situations 
31

but may need help occasionally." O'Laughlin indicated that 

Rodriguez's English language skills "would be that of a middle 

school student," and that testifying at trial requires a level 

of English proficiency at a high school graduate level.

The Commonwealth elicited testimony regarding Rodriguez's 

language skills from Shannon Driskell, a longtime friend of the 

victim who was a bridesmaid at Rodriguez's wedding to the 

victim. Driskell, whose testimony was credited by the motion 

judge, observed Rodriguez speaking English on a regular basis. 

On those occasions, Rodriguez spoke only English with her 

children and the victim. Rodriguez would communicate with 

Driskell on the Internet social networking site Facebook using 

English. Driskell testified that she did not have difficulty in 

communicating with Rodriguez in English.

The motion judge concluded that Rodriguez did not fit the 

definition of a "non-English speaker" in need of the assistance 

of an interpreter and that, even if she had been so designated, 

the qualified interpreter who was made available to her on 

cross-examination was sufficient to satisfy the assistance 

necessary under G. L. c. 221C. We agree.26

 

26 At the time of the incident, the witness spoke to her 

family in English and held a job as a certified nurse's 

assistant, in which she conducted her responsibilities using 

English.
32

b. Court room closure. The defendant claims that his 

Sixth Amendment right to a public trial was violated because his 

family and friends were excluded from jury selection. The 

motion judge declined to hold an evidentiary hearing on this 

basis, and he denied the defendant's motion outright.

The right to a public trial guaranteed by the Sixth 

Amendment extends to the jury selection process, and it is a 

well-settled principle that a properly preserved violation of 

that right is structural error requiring reversal. See Penn, 

472 Mass. at 622. However, "even structural error is subject to 

waiver," Commonwealth v. Celester, 473 Mass. 553, 578 (2016), 

and "[w]here counsel fails to lodge a timely objection to the 

closure of the court room -- as happened in this case -- 'the 

defendant's claim of error is deemed to be procedurally 

waived.'" Penn, supra at 622, quoting Commonwealth v. LaChance, 

469 Mass. 854, 857 (2014), cert. denied, 136 S. Ct. 317 (2015). 

Such waiver need not be consented to by the defendant. See

Commonwealth v. Wall, 469 Mass. 652, 672 (2014).

The uncontroverted evidence tends to show that the court 

room was closed during jury selection. It also shows that trial 

counsel was aware of the court room closure prior to jury 

selection, and did not object.27 The court room closure claim is 

 

27 The defendant's motion for a new trial was accompanied by 

affidavits from the defendant's mother and sister. Both 
33

therefore procedurally waived. Penn, 472 Mass. at 622, quoting 

LaChance, 469 Mass. at 857.

However, where the defendant's Sixth Amendment right to a 

public trial has been subject to procedural waiver, the 

defendant after conviction may still make a collateral attack on 

the issue based on ineffective assistance of counsel for failure 

to object to the court room closure. See Penn, 472 Mass. at

623. See also LaChance, 462 Mass. at 858. The defendant must 

not only make a showing that his attorney was deficient for 

failing to make a timely objection but also "show that a 

substantial likelihood of a miscarriage of justice arose from 

the court room closure." Penn, supra ("The structural nature of 

the underlying error does not automatically excuse the defendant 

from showing prejudice when advancing an unpreserved claim"

[citation omitted]). See LaChance, supra at 857. The defendant 

has not proffered any substantive grounds on which the closure 

of the court room during jury selection would have resulted in 

any effect on the judgment in the case, and therefore failed to 

show prejudice arising from counsel's failure to object.

28,29

 

affidavits aver to the fact that trial counsel was the one who 

informed them of the court room closure.

28 The defendant argues that he was prejudiced because trial 

counsel's failure to object to the closure of the court room has 

resulted in a less favorable standard of review. This alone 

does not create a substantial risk of a miscarriage of justice. 

See, e.g., Commonwealth v. Penn, 472 Mass. 610, 623 (2015), 
34

c. Ineffective assistance of counsel. We review the 

defendant's ineffective assistance of counsel claims, brought as 

part of an appeal from a conviction of murder in the first 

degree, under the substantial likelihood of a miscarriage of 

justice standard, pursuant to § 33E. See Commonwealth v. 

Lessieur, 472 Mass. 317, 326, cert. denied, 136 S. Ct. 418

(2015). "We consider whether there was an error in the course 

of the trial (by defense counsel, the prosecutor, or the judge) 

and, if there was, whether that error was likely to have 

influenced the jury's conclusion" (quotations and citation

omitted). Id. at 327. The defendant bears the burden of 

 

cert. denied, 136 S. Ct. 1656 (2016); Commonwealth v. Jackson, 

471 Mass. 262, 269 (2015), cert. denied, 136 S. Ct. 1158 (2016).

29 The motion judge's decision to deny the defendant's 

motion for a new trial without first holding an evidentiary 

hearing on the court room closure issue was not erroneous. In 

adjudicating arguments made as part of a motion for a new trial, 

the motion judge "may rule on the issue or issues presented by 

such motion on the basis of the facts alleged in the affidavits 

without further hearing if no substantial issue is raised by the 

motion or affidavits." Commonwealth v. Drayton, 473 Mass. 23, 

31 (2015), quoting Mass. R. Crim. P. 30 (c), as appearing in 435 

Mass. 1501 (2001). On the other hand, "[w]hen a substantial 

issue has been raised, and supported by a substantial 

evidentiary showing . . . the judge should hold an evidentiary 

hearing" (citation omitted). Id. The motion judge effectively 

assumed the validity of the affidavits attached to the 

defendant's motion for a new trial, and still (without error) 

denied the motion. See Penn, 472 Mass. at 622, where an

evidentiary hearing was conducted concerning a court room 

closure issue and uncovered similar evidence as was assumed by 

the motion judge in the present case. The decision to abstain 

from holding an evidentiary hearing was appropriate.
35

proving that trial counsel was ineffective. See Commonwealth v. 

Alcequiecz, 465 Mass. 557, 563 (2013).30

The defendant argues that trial counsel was ineffective for 

failing to (i) properly prepare defense expert witness, a 

forensic pathologist, for voir dire examination; (ii) object to 

the prosecutor's alleged misstatement of the law of self-defense 

during closing argument; and (iii) elicit testimony from 

Rodriguez that the victim was using a forearm on the defendant's 

throat to hold him down.31,32 The defendant has not satisfied his 

burden to prove ineffective assistance of counsel as to any of 

his claims. See id.

 

30 The defendant's claims of ineffective assistance of 

counsel are not supported by an affidavit from lead counsel at 

trial, but did include one from co-counsel. As a result, we 

must rely only on the record as to whether there was a strategic 

purpose behind some of counsel's decisions. We keep in mind 

that "[r]elief on a claim of ineffective assistance based on the 

trial record is the weakest form of such a claim because it is 

'bereft of any explanation by trial counsel for his actions and 

suggestive of strategy contrived by a defendant viewing the case 

with hindsight.'" Commonwealth v. Gorham, 472 Mass. 112, 116 

n.4 (2015), quoting Commonwealth v. Peloquin, 437 Mass. 204, 210 

n.5 (2002).

31 As mentioned above, the motion judge did not err in 

denying the defendant's ineffective assistance claims regarding

the G. L. c. 276, § 33A, telephone rights and the failure to 

object to the jury instructions on self-defense and excessive 

force in self-defense issues.

32 Applying the standard set forth in Commonwealth v. 

Saferian, 366 Mass. 89, 96 (1974), the motion judge denied the 

motion as to all the claims of ineffective assistance.
36

a. Failure to prepare expert witness. Prior to 

testifying, the expert was subjected to voir dire examination as 

to his qualifications and bases to testify on certain subjects. 

The judge concluded, based on the voir dire examination, that 

the expert would not be allowed to testify as to his opinion 

that (1) the lack of clustering of the stab wounds indicated 

defensive action on the part of the defendant; and (2) the blood 

stains on the floor indicated that the defendant was retreating 

from the victim or the victim was chasing the defendant. The 

judge determined that an opinion whether the lack of clustering 

was indicative of self-defense was inadmissible because "[t]he 

jury [do] not need to hear it from the expert. They can draw 

that same conclusion if it's to be drawn." The same was true as 

to the proposed chasing and retreating testimony, which was "not 

within the expertise of the proposed witness." The expert was 

allowed to testify to the positioning, trajectory, and lack of

clustering of the stab wounds, and the positioning of the blood 

stains, but not to the conclusions he drew from those facts. 

The defendant objected to the expert's testimony being so 

limited.

Before the jury, the expert testified that it was his 

opinion that the victim's wounds were likely inflicted when the 

victim and defendant were "face-to-face." He further opined 

that there was "no clustering of stab wounds on [the victim]," 
37

and that such a lack of clustering "reflects the nature of the 

activity used to cause or create those stab wounds that results 

in the cluster," such that it was inconsistent with "somebody 

holding a knife and repetitively thrusting it in approximately 

the same location of the body." He also testified regarding the 

fact that the wounds were inflicted in different areas of the 

apartment, causing blood to pool on various surfaces in the 

room. From that testimony, the defense attorney argued as part 

of his closing that the lack of clustering and the positioning 

of the blood stains indicated that the parties were moving 

around during the altercation, and suggested that these were 

indications that there was not an intent to kill.

"The purpose of expert testimony is to assist the trier of 

fact in understanding evidence or determining facts in areas 

where scientific, technical, or other specialized knowledge 

would be helpful." See Commonwealth v. Pytou Heang, 458 Mass. 

827, 844 (2011). "Expert testimony is admissible when it will 

'help jurors interpret evidence that lies outside of common 

experience.'" Commonwealth v. Scott, 464 Mass. 355, 360 n.5 

(2013), quoting Commonwealth v. Tanner, 45 Mass. App. Ct. 576, 

581 (1998). See Mass. G. Evid. § 702 (2016). "A judge has wide 

discretion in qualifying a witness to offer an expert opinion on 

a particular question, . . . and [the judge's] determination 
38

will not be upset on appeal if any reasonable basis appears for 

it" (citations omitted). Pytou Heang, supra at 845.

There are two distinct reasons that convince us that trial 

counsel was not ineffective in failing to further prepare the 

expert. First, it was not a lack of qualifications that 

resulted in two of the expert's conclusions being excluded; 

instead, it was the fact that the evidence he sought to proffer 

was within the purview of the jury, and would not have "help[ed] 

jurors interpret [the] evidence." Scott, 464 Mass. at 360 n.5. 

Second, whether trial counsel erred is irrelevant; the areas of 

testimony to which the expert proposed in his affidavit that he 

would testify if given another chance would either still be 

inadmissible or be cumulative of other evidence offered at trial 

by that expert or by the Commonwealth's expert. Even assuming 

that counsel failed to adequately prepare his expert for voir 

dire examination, the defendant has not met his burden of 

proving that such a failure would have "influenced the jury's 

conclusion" (citation omitted). Lessieur, 472 Mass. at 327. 

See Alcequiecz, 465 Mass. at 563.

ii. Failure to object to Commonwealth's closing argument. 

The defendant argues that trial counsel's failure to object to 

the Commonwealth's closing argument -- which he claims misstated 

and distorted the law on self-defense and was not fairly 

supported by the evidence -- constitutes ineffective assistance 
39

of counsel.33 Because the defendant did not object to the 

closing argument at trial, we review it to determine if any 

error in failing to object would have created a substantial 

likelihood of a miscarriage of justice. Commonwealth v. 

Wright, 411 Mass. 678, 681 (1992), S.C., 469 Mass. 447 (2014). 

Under that standard, we assess the closing argument "in the 

context of the entire argument, and in light of the judge's 

instructions to the jury and the evidence at trial" (citation 

omitted). Commonwealth v. Carriere, 470 Mass. 1, 19 (2015).

In its closing argument, the Commonwealth argued that the 

defendant had "ambush[ed]" the victim, rather than acted in 

self-defense.34 The prosecutor later stated:

"The law recognizes there may be circumstances where 

someone can defend themselves with a deadly weapon. 

First, you must avail yourself of all means to avoid 

physical combat. For example, leave through the front 

door or back door if you can. . . . Did [the 

defendant] do all he could to avoid physical combat 

when he told [Rodriguez's neighbor] he wasn't leaving 

even though they knew [the victim] was coming home?" 

(emphasis added).

Although the emphasized sentence in the Commonwealth's 

closing argument was flawed, neither the argument taken as a 

 

33 The defendant does not specify in his brief which portion 

or portions of the Commonwealth's closing argument misstated the 

law, or how such portion or portions had misstated the law.

34 The prosecutor argued: "Isn't it far more believable 

that . . . [the defendant] was waiting for [the victim] to come 

in that door and able to ambush him when he came through the 

door with this knife he had on a dresser in that bedroom[?]"; 

and "[The victim] got ambushed."
40

whole nor trial counsel's failure to object to that argument 

created a substantial likelihood of a miscarriage of justice. 

See id. The single sentence of the Commonwealth's closing 

argument that indicated that the defendant did not do all he 

could to avoid physical combat because he had, hours before the 

altercation, told Rodriguez's neighbor he would not leave the 

home carried with it an implication that the defendant's actions 

prior to the time of the purported self-defense should be part 

of the jury's consideration. However, the rest of the 

prosecutor's argument concerning self-defense focused on the 

altercation itself. It is apparent that the jury were not 

convinced by the prosecutor's premeditation argument, as the

charge of murder in the first degree on the theory of deliberate 

premeditation was rejected. To the extent that the argument may 

have had any effect on the jury's apparent refusal to recognize 

that the victim initiated the assault, our reduction of the 

verdict from murder in the first degree to voluntary 

manslaughter addresses that concern. See part 6, infra.

iii. Failure to elicit testimony. Finally, the defendant 

argues that trial counsel was ineffective because he failed to 

elicit testimony from Rodriguez that the victim was holding the 

defendant down, using a forearm as a bar across his throat. As 

mentioned, Rodriguez gave two statements to police. Only the 

second statement indicated that, after the victim came into the 
41

house and the altercation began between the victim and the 

defendant, she "could see [the victim] on top of [the defendant] 

holding [the defendant] down with his left forearm, by his 

neck."

The defendant has not met his burden of showing that better 

representation would have influenced the jury's conclusion. See 

Alcequiecz, 465 Mass. at 563. At trial, Rodriguez testified 

that the victim, who was much larger than the defendant, picked 

up the defendant, threw him against the air conditioner, and was 

on top of him. She also specified that the victim had his hand 

on top of the defendant, and that the defendant could not have 

gotten away from the victim. Although eliciting a more specific 

placement of the victim's hand on the defendant's throat may 

have bolstered his claim that he was in fear of his life, it 

would have been cumulative of the evidence already offered by 

Rodriguez. Further, based on the record, it was not manifestly 

unreasonable for trial counsel to avoid references to 

Rodriguez's second police statement, given that it included 

several potentially inculpatory statements purportedly made by 

the defendant.35 See Commonwealth v. Riley, 467 Mass. 799, 808 

(2014).

 

35 For example, Rodriguez told police that the defendant had 

told her that if the victim ever came to the apartment, he, the 

defendant, would stab the victim.
42

d. Newly discovered evidence. The defendant moved for a 

new trial on the basis of newly discovered evidence in the form 

of an opinion from a psychologist who, according to his 

affidavit, specializes in combat-related treatment. The 

defendant sought testimony from the psychologist concerning the 

effects that a forearm across someone's throat might cause. 

Specifically, he would have testified that such forearm pressure 

to the throat can cause an adversary to lose consciousness and 

would put an adversary in reasonable fear that he was in 

immediate danger of being killed or seriously injured.

The motion judge was entitled to make a ruling on the 

defendant's motion on this ground without an evidentiary 

hearing. See Commonwealth v. Drayton, 473 Mass. 23, 32 (2015), 

quoting Mass. R. Crim. P. 30 (c), as appearing in 435 Mass. 1501 

(2001) (only "substantial" issue warrants evidentiary hearing). 

To prevail on a motion for a new trial on this ground, "[f]irst, 

the defendant must establish that the evidence is 'newly 

available,' [and,] [s]econd, the defendant must show that the 

evidence 'casts real doubt on the justice of the conviction'"

(citations omitted). Commonwealth v. Cameron, 473 Mass. 100, 

104 (2014). See Commonwealth v. Grace, 397 Mass. 303, 305 

(1986).

The defendant has not met his burden of establishing that 

the proposed testimony is newly available. Commonwealth v. 
43

Sullivan, 469 Mass. 340, 350 n.6 (2014) ("Newly available 

evidence is evidence that was unavailable at the time of trial 

for a reason such as . . . a particular forensic testing 

methodology had not yet been developed or gained acceptance by 

the courts"). The defendant offers no argument that the 

testimony that would have been offered by the psychologist at an 

evidentiary hearing could not have been uncovered by the defense 

at the time of trial. There was therefore no "substantial" 

issue that required the motion judge to hold an evidentiary 

hearing. The motion for a new trial was properly denied.36

6. Review under G. L. c. 278, § 33E. The defendant 

requests that we exercise our extraordinary authority under 

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

of murder in the first degree to voluntary manslaughter. "Our 

duty under G. L. c. 278, § 33E, is to consider broadly the whole 

 

36 We are also not convinced (though we need not decide) 

that the psychologist's testimony would have been admitted even 

if offered at trial. The jury heard testimony that the 

defendant reasonably feared that the victim would kill him, as 

adduced from their differences in size and physical strengths. 

A fellow member of the National Guard testified that the victim 

was trained in unarmed combat and that he could incapacitate or 

kill another person. Rodriguez testified that the defendant was 

pinned down by the larger victim. And the defendant himself 

told the police that he "had no choice" but to attack the 

victim, and that he did so in self-defense. The psychologist's 

testimony, if offered at the time of trial, may have been 

cumulative of other testimony, and does not "cast real doubt on 

the justice of the conviction." Commonwealth v. Cameron, 473 

Mass. 100, 104 (2015), quoting Commonwealth v. Grace, 397 Mass. 

303, 305 (1986).
44

case on the law and the facts to determine whether the verdict 

is consonant with justice" (quotations and citation omitted). 

Commonwealth v. Howard, 469 Mass. 721, 747 (2014). On such 

consideration, we "may, if satisfied that the verdict was 

against the law or the weight of the evidence, or because of 

newly discovered evidence, or for any other reason that justice 

may require (a) order a new trial or (b) direct the entry of a 

verdict of a lesser degree of guilt." G. L. c. 278, § 33E. See 

Commonwealth v. Baker, 346 Mass. 107, 109 (1963) ("If upon our 

examination of the facts, we should, in our discretion, be of 

opinion that there was a miscarriage of justice in convicting 

the defendant of murder in the first degree, and that a verdict 

of guilty of murder in the second degree or of manslaughter 

would have been more consonant with justice, it is now our power 

and duty to so declare"). "Each case depends on its peculiar 

facts. No one fact is conclusive. A most important 

consideration is whether the jury verdict is markedly 

inconsistent with verdicts returned in similar cases" (citation 

omitted). Commonwealth v. Colleran, 452 Mass. 417, 432 (2008).

There are a number of factors we have considered in similar 

cases in mitigating a verdict of murder in the first degree

under § 33E:

"Those factors include: whether the intent to kill 

was formed 'in the heat of sudden affray or combat,' 

[Baker, 346 Mass. at 119]; whether the homicide occurred in 
45

the course of a 'senseless brawl,' Commonwealth v. 

Ransom, 358 Mass. 580, 583 (1971); whether 'a minor 

controversy . . . explode[d] into the killing of a human 

being,' [Baker], supra at 110; whether '[t]he entire 

sequence reflects spontaneity rather than premeditation,' 

Commonwealth v. Williams, [364 Mass. 145, 152 

(1973)]; whether the defendant carried a weapon to the 

scene, id., or left the scene after an initial 

confrontation and returned with a weapon to kill the 

victim, Commonwealth v. Jones, 366 Mass. 805, 809 (1975); 

whether the victim was the first aggressor, [Baker], 

supra at 118; whether the defendant and the victim were 

strangers, [Ransom], supra at 583, or, if only 

acquaintances, whether there had been prior trouble between 

them, [Jones], supra at 808; whether the defendant and the 

victim had enjoyed a good relationship prior to the 

killing, Commonwealth v. Seit, 373 Mass. 83, 94 (1977); 

whether alcohol or drugs were involved, [Ransom], supra at 

583; the personal characteristics of the defendant, such as

age, Commonwealth v. McDermott, 393 Mass. 451, 460–461

(1984) (seventeen years old), [Jones], supra at 808 

(twenty-eight years old); family, id. (married with six 

small children); hard working, [Seit], supra at 95; 

disability, Commonwealth v. Vanderpool, 367 Mass. 743, 750 

(1975); and lack of prior criminal record, [Jones], supra."

Colleran, supra at 431-432. Most recently, in reducing a 

verdict from murder in the first degree to voluntary 

manslaughter, we principally considered the particulars of the 

fight that led to the victim's death. See Commonwealth v. 

Niemic, 472 Mass. 665, 679 (2015).

In Jones, 366 Mass. at 805, the defendant was convicted of 

murder in the second degree on an indictment charging murder in 

the first degree. The defendant had fatally stabbed the victim 

after an altercation. Id. at 807. That day, the defendant and 

the victim had done a considerable amount of drinking. Id. The 

two had gotten into an argument earlier in the day, and their 
46

paths crossed again hours later. Id. The argument resumed, the 

victim "struck the defendant with a heavy blow on the jaw," and 

the defendant retaliated with his knife. Id. At trial, the 

defendant testified that he used his knife in self-defense 

because the victim had come at him with a straight edge razor. 

Id. We were not convinced that the fatal wound was inflicted in 

the appropriate exercise of self-defense, but still acknowledged 

that the defendant "was reasonably apprehensive that the victim 

might use the razor which the defendant knew the victim 

possessed," due to the victim's reputation. Id. at 808-809. We 

reduced the verdict from murder in the second degree to 

manslaughter because of the absence of malice. Id. at 808. We 

concluded that the fatal attack was "senseless, undoubtedly the 

result of too much drinking," and that the intention to attack 

was "formed in the heat of sudden affray or combat, . . . thus 

negating the necessary element of malice" (citations omitted). 

Id. at 808-809.

There are many factors in the present case that convince us 

that a reduction is warranted. The jury rejected the theory of 

deliberate premeditation, meaning that it focused its inquiry 

exclusively on the altercation itself. There was evidence that 

the victim was the initial aggressor;, that the defendant 

reasonably could have been and was fearful of the victim, who 

was much larger, trained in unarmed combat, and enraged; and 
47

that the defendant swung the knife in a wild manner. Moreover, 

prior to using the knife in self-defense, the defendant told 

Rodriguez to telephone 911. After the altercation, he gave a 

full statement to police and never contested his involvement in 

the victim's death. The sequence that led to the killing 

indicates spontaneity, and reflects that the killing was more 

the product of sudden combat and the heat of passion than of 

malice. See Jones, 366 Mass. at 809.

It is our conclusion that the jury relied on a confluence 

of factors, including a complicated set of instructions, in 

reaching their verdict, which, taken together, may have produced 

a result not consonant with justice. Voluntary manslaughter due 

to mitigating circumstances shares several of the factors 

delineated by the judge as to a finding of murder in the first 

degree on the theory of extreme atrocity or cruelty.37 See 

Commonwealth v. Berry, 466 Mass. 763, 776 (2014) (Gants, J., 

concurring) ("If the jury were to rest their finding of extreme 

 

37 The judge instructed on the following factors to be 

considered by the jury in determining whether the defendant was 

guilty of murder in the first degree: "One, whether the 

defendant was indifferent to or took pleasure in the suffering 

of the deceased; two, the consciousness and degree of suffering 

of the deceased; three, the extent of the injuries to the 

deceased; four, the number of blows delivered; five, the manner, 

degree and severity of the force used; six, the nature of the 

weapon, instrument or method used; and seven, the disproportion 

between the means needed to cause death and those employed"). 

The third, fourth, fifth, sixth, and seventh factors could also 

be indicative of voluntary manslaughter if the jury did not find 

malice.
48

atrocity or cruelty on any but the first Cunneen factor, [see 

Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983),] the jury 

need not focus on the defendant's state of mind. Consequently, 

a defendant may be found guilty of murder in the first degree 

with extreme atrocity or cruelty where the defendant did not 

intend that victim suffer before he died but nonetheless did 

suffer an agonizing death"). The evidence appears overwhelming 

that the Commonwealth failed to meet its burden in proving the 

absence of mitigating circumstances beyond a reasonable doubt 

and, for this reason, we are concerned that the prosecutor's 

closing argument regarding lying in wait and the judge's failure 

to address this possibility in the jury instructions may have 

led the jury astray.

Like the fight in Jones, 366 Mass. at 807, the altercation 

in the present case was a senseless brawl. The defendant, 

through no malicious actions of his own, found himself in a 

relationship with a woman whose estranged husband had violent 

tendencies and was trained to kill. The weight of the evidence 

supports the conclusion that the defendant killed the victim 

either as the result of reasonable provocation or through the 

use of excessive force in self-defense. Under either 

circumstance, the killing was the result of uncontrolled violent 

action on the part of the defendant and the victim. Because of 

the unusual circumstances of this case, and the fact that it 
49

presents multiple factors we have considered in the past when 

exercising our power under § 33E, a conviction of voluntary 

manslaughter is more consonant with justice, and we exercise our 

extraordinary authority under § 33E to reduce the verdict. See 

Niemic, 472 Mass. at 679; Jones, 366 Mass. at 809-810.38

The case is remanded to the Superior Court, where the 

verdict of murder in the first degree and sentence imposed shall 

be vacated. A verdict of guilty of voluntary manslaughter shall 

be entered and a sentence imposed.

So ordered.

 

38 In his closing argument, the prosecutor acknowledged that 

the evidence at trial, at a minimum, proved that the defendant 

used excessive force in self-defense, and that the jury would be 

warranted in returning a guilty verdict as to voluntary 

manslaughter.