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SJC-13321

COMMONWEALTH vs. RIGOBERTO ESCOBAR.

Middlesex. November 7, 2023. - March 20, 2024.

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

Homicide. Practice, Criminal, Motion to suppress, Admissions 

and confessions, Voluntariness of statement, Waiver, 

Arraignment, Mistrial, Instructions to jury, Capital case. 

Constitutional Law, Admissions and confessions, 

Voluntariness of statement, Waiver of constitutional 

rights. Evidence, Admissions and confessions, 

Voluntariness of statement, Expert opinion, Fingerprints, 

Firearm. Witness, Expert. Waiver. Firearms. License.

Indictments found and returned in the Superior Court 

Department on March 14, 2015.

A pretrial motion to suppress evidence was heard by Kathe 

M. Tuttman, J., and the cases were tried before Elizabeth M.

Fahey, J.

Jeffrey L. Baler for the defendant.

Chia Chi Lee, Assistant District Attorney, for the 

Commonwealth.

KAFKER, J. A jury found the defendant, Rigoberto Escobar, 

guilty of murder in the first degree on theories of deliberate 
2

premeditation and extreme atrocity or cruelty for the shooting 

death of Magno Sosa (victim). In the early morning hours of 

January 17, 2015, after drinking together, the men got into a 

heated argument that escalated into a fist fight. After they 

were separated and the victim left the scene, the defendant 

followed the victim to a dead-end street and shot him three 

times, before fleeing and hiding the murder weapon.

On direct appeal, the defendant advances several arguments. 

He contends that his motion to suppress his confession to the 

police was erroneously denied, either because he was improperly 

Mirandized, because improper behavior by the police coerced him 

to confess involuntarily, or because the police allegedly 

violated his rights to prompt arraignment and telephone use 

after arrest. Furthermore, he suggests that the trial judge

erred in denying his motion for a mistrial and erred in 

declining to instruct the jury on voluntary manslaughter and 

involuntary manslaughter. Finally, he contends that improper 

testimony by the Commonwealth's experts on fingerprint 

identification and forensic ballistics created a substantial 

likelihood of a miscarriage of justice. Separately, the 

defendant argues that his convictions of possession of a firearm1

1 The defendant was convicted of illegal possession of a 

firearm in violation of G. L. c. 269, § 10 (a), and illegal 

possession of a loaded firearm in violation of G. L. c. 269,
3

must be vacated under our recent holding in Commonwealth v. 

Guardado, 491 Mass. 666 (Guardado I), S.C., 493 Mass. 1 (2023)

(Guardado II). 

We conclude that the defendant's motion to suppress was 

properly denied, as was his motion for a mistrial. We also 

conclude that the trial judge did not err in declining to 

provide a jury instruction on involuntary manslaughter. The 

trial judge did err, however, in declining to instruct the jury 

on voluntary manslaughter. Nonetheless, in view of the jury 

instructions as a whole, the jury's decision to convict him of 

murder in the first degree and not murder in the second degree, 

and the paucity of evidence supporting a finding of voluntary 

manslaughter, the defendant was not prejudiced by the erroneous 

decision not to instruct the jury on voluntary manslaughter. 

Lastly, even assuming that testimony by the Commonwealth's 

experts was improper, the improper testimony did not create a 

substantial likelihood of a miscarriage of justice because,

separate and apart from the expert testimony, the Commonwealth 

presented overwhelming evidence tying the defendant to the 

firearm and to the crime. Accordingly, we affirm the 

defendant's conviction of murder in the first degree. However, 

§ 10 (n). The defendant was also convicted of discharging a 

firearm near a dwelling in violation of G. L. c. 269, § 12E, but 

that conviction was placed on file, and the defendant does not 

make any arguments on appeal specific to it. 
4

we vacate the defendant's firearm convictions and remand for a 

new trial to give the Commonwealth the opportunity to meet its 

burden under Guardado II to prove that the defendant was not 

licensed to carry a firearm. 

1. Background. a. Facts. We recite the facts as the 

jury reasonably could have found them, reserving certain facts 

for our discussion of the legal issues. 

At around 9 P.M. on the evening of January 16, 2015, the 

defendant went to the Everett home of his friends Johnny Pineda 

and Oscar Interiano. The three men drank together, and at 

around 11:45 P.M., they drove in Pineda's truck to a local 

restaurant. At the restaurant, they met the victim, a Nantucket 

resident who was visiting friends in Everett. All four remained 

at the restaurant, socializing and drinking, until 1 A.M. on 

January 17, when the restaurant closed. Pineda drove the four 

men back to his house, stopping at the defendant's house on the 

way, where the defendant briefly went inside and retrieved a .40 

caliber pistol he owned. 

Shortly after returning to Interiano and Pineda's house, 

the defendant, the victim, and Interiano began arguing.2 As the 

2 Evidence at trial suggested that the defendant and the 

victim were arguing about a video recording they had watched, 

but contradictory evidence was introduced regarding the contents 

of the recording. In his statement to police the day after the 

murder, which was recorded and played for the jury, the 
5

argument escalated, Pineda told the three men that if they had 

any problems with each other, they should take it outside. 

Once outside, the argument turned physical, with the 

defendant and the victim pushing each other and throwing punches 

at one another. Interiano attempted to separate the victim and 

the defendant, but he also pushed and punched the victim. At 

one point, the victim fell to the ground, and the defendant and 

Interiano kicked him. After a few minutes of fighting, 

Interiano succeeded in separating the defendant and the victim, 

and the victim left the scene. The defendant told Interiano to 

go inside and open the back door, and that he would meet 

Interiano there. Interiano went inside, but the defendant 

followed the victim down the road to Elmwood Street, a dead-end 

road roughly 200 feet away. The defendant then shot the victim 

at close range, within one or two feet, through the right eye. 

The victim fell, and the defendant shot the victim twice more 

through the back of the head. 

The defendant fled the scene, running between houses and 

jumping over a fence to return to Interiano and Pineda's house. 

Interiano opened the back door and let him in. Interiano asked

defendant stated that the argument had started over a video 

recording of a football match. In his testimony at trial, the 

defendant instead stated that the video recording showed Pineda 

being arrested. Police searched the victim's cell phone and 

found only a short video recording of animated Christmas lights.
6

what had happened, and the defendant replied that the man he had 

had a problem with would not be able to talk. The defendant 

showed Interiano the firearm and asked to hide it at the house. 

Interiano replied that he could hide it anywhere but his 

bedroom, so the men wrapped the firearm in a shirt and hid it in 

a rolled-up carpet in the basement. Hearing police sirens 

outside, the defendant told Interiano he would sleep on the 

couch in the living room, but when Interiano woke up at 6:30

A.M., the defendant was gone. 

The defendant testified at trial and denied shooting the 

victim. He stated that he had retrieved the firearm from his 

home because Pineda and Interiano had expressed interest in 

purchasing it and that he hid the firearm in the basement as 

soon as they arrived at Interiano and Pineda's house. He 

acknowledged fighting the victim outside but maintained that 

after the fist fight he went home and went to sleep. 

b. The defendant's interrogation. We recite the facts as 

found by the motion judge when considering the defendant's 

motion to suppress. See Commonwealth v. Medina, 485 Mass. 296, 

299-300 (2020).

Shortly before 9:30 P.M. on January 17, 2015, a group of 

State police detectives and Everett police officers went to the 

defendant's home. Officer Nancy Butler, an Everett police 

officer and native Spanish speaker, accompanied the officers to 
7

ensure the defendant understood what was said to him. The 

officers entered the defendant's bedroom with their weapons 

drawn. They awakened the defendant, who had been asleep, and 

holstered their weapons. Butler informed the defendant that the 

officers wished to speak with him and requested that he 

accompany them to the Everett police station, but that he was 

not required to do so. The defendant agreed to accompany the 

officers and was transported to the Everett police station. 

At the police station, the defendant waited for over three 

hours, and then was brought to an interrogation room at around 

12:55 A.M. Butler read the defendant the Miranda warnings in 

Spanish from a booking form and asked the defendant if he 

understood his rights. The defendant replied, "Yes." Butler 

asked the defendant to read the Spanish form that she had read 

to him. The defendant reviewed the forms for a few minutes and

stated that he had read the form. Both the defendant and Butler 

signed the form. 

State police Trooper Michael Cashman and Everett police 

Detective Daniel Tucker proceeded to interview the defendant, 

with Butler translating. At the beginning of the interview, the 

officers did not inform the defendant that he was a suspect or 

tell him why he was being interviewed. After about twenty 

minutes, however, the officers told the defendant they knew what 

had happened, that he had to tell them the truth, and that he 
8

would only have one chance to tell what happened. The defendant 

acknowledged that he had had an argument with the victim that 

had escalated to a fight, but he denied that anything more 

serious had occurred. The officers told the defendant that they 

knew he was lying, and that they could not help him unless he 

told the truth. They also told him that they had recovered 

security camera footage that proved he was lying, and that they 

would recover "microscopic" evidence from his apartment that 

would prove he was lying. 

The defendant reiterated that he had gotten into a fist 

fight with the victim for about five minutes but denied that the 

victim had been injured, stating that the victim was standing 

when the defendant walked home after the fight. The officers 

then told the defendant that the victim had been killed in the 

same area where the fight took place, and that many people had 

stated that the defendant carried a gun. The officers also told 

the defendant that they had been told the defendant was involved 

with the 18th Street gang, and that the victim was associated 

with the gang MS-13. The defendant denied carrying a gun and 

denied having any involvement with gangs. 

Later in the interview, the officers informed the defendant 

that they had searched Interiano and Pineda's house and had 

recovered the defendant's firearm. The defendant changed his

posture, slumped forward in his chair, and put his head down. 
9

After a few more minutes of questioning, the defendant stated 

that he had been very drunk, that he had been fighting with the 

victim, and that the fight had continued as the defendant and 

the victim went from the house to Elmwood Street.3 He stated 

that they kept fighting and he went crazy, took the gun out, and 

fired several times at the victim at close range. He stated 

that he did not know how many times he had fired the gun. He 

also stated he did not know where he had hit the victim but did 

see the victim fall to the ground. Afterward, he returned to 

Interiano and Pineda's house, where he hid the gun in the 

basement and then went home. Following the interview, the 

defendant was placed under arrest and booked.

At trial, the defendant testified that he lied during the 

interrogation in order to prevent his friends from getting in 

trouble. He also stated that he did not understand his Miranda 

rights when they were read to him, and that he generally had 

trouble understanding Butler's Spanish translation during the 

interrogation. 

3 The defendant gave conflicting answers as to whether there 

was a break in the fighting between the fist fight at the house

and the fight that led to the victim's death. When asked 

originally, the defendant agreed that the victim had left the 

scene of the fight at the house and that the defendant had 

followed him. Later, the defendant denied having followed the 

victim, stating that they "kept fighting" as they both walked 

from the house to Elmwood Street, where the defendant shot the 

victim.
10

c. Procedural history. The defendant moved to suppress 

his statement to the police. He argued that he had not been 

properly given Miranda warnings, had not knowingly waived his 

rights, and, in the alternative, had not made the statements 

voluntarily. He suggested that because the officers 

interviewing him had improperly implied that the interview would 

be his only chance to tell his story, had made assurances to him

that a confession would assist him, and lied about the evidence 

to which they had access, his statement was the result of police 

coercion. He also contended that his right to make a telephone 

call under G. L. c. 276, § 33A, was violated because he was not 

informed of his right to make a telephone call until the end of 

the interview.

Following an evidentiary hearing, the motion judge 

concluded that the defendant's interview was a custodial 

interrogation within the meaning of Miranda v. Arizona, 384 U.S. 

436 (1966), and its progeny. However, the motion judge also 

found that Butler read the complete Miranda warnings to the 

defendant, and the defendant read the warnings himself, "which 

he was able to do without difficulty. . . . The Miranda 

warnings were thus properly conveyed to the defendant." The 

motion judge also concluded that the defendant was not 

unlawfully deprived of his telephone rights.

Following a jury trial, the defendant was convicted of 
11

murder in the first degree, unlawful possession of a firearm, 

and unlawful possession of a loaded firearm. The defendant 

timely appealed.

2. Discussion. a. Motion to suppress. The defendant 

advances several arguments as to why his January 18, 2015 

statement to the police should have been suppressed. We address 

each in turn. 

i. Miranda warnings. First, the defendant argues that he 

was not properly given his Miranda warnings and consequently did 

not knowingly, intelligently, and voluntarily waive his Miranda 

rights. "A defendant's waiver of his or her Miranda rights must 

be made knowingly, intelligently, and voluntarily."

Commonwealth v. Delossantos, 492 Mass. 242, 247 (2023). The 

Commonwealth must prove beyond a reasonable doubt that the 

defendant's waiver of Miranda rights was valid, and "must 

demonstrate not only what warnings were provided to the 

defendant, but also that the defendant understood such 

warnings." Id., citing Commonwealth v. The Ngoc Tran, 471 Mass. 

179, 186 n.6 (2015). "In reviewing a judge's determination 

regarding a valid waiver of Miranda rights and voluntariness, we 

accept the judge's subsidiary findings of fact absent clear 

error, give substantial deference to the judge's ultimate 

findings and conclusions of law, but independently review the 

correctness of the judge's application of constitutional 
12

principles to the facts found" (quotation and alterations

omitted). Delossantos, supra at 250, quoting Commonwealth v. 

Vao Sok, 435 Mass. 743, 751 (2002).

In the present case, we see no reason to disturb the motion 

judge's findings of fact or well-reasoned conclusions of law. 

As the motion judge noted, the defendant was read the Miranda 

warnings in Spanish by a native Spanish speaker, and he verbally 

confirmed that he understood the warnings.4 He then read the 

warnings himself, "which he was able to do without difficulty,"

and signed a statement affirming that he understood his rights. 

Furthermore, it is clear based on the record that the defendant 

waived his rights knowingly, intelligently, and voluntarily.

The motion judge found:

"[T]he defendant was sober, alert, focused, and responsive 

to questions. He felt comfortable asking for clarification 

when he did not understand a particular question. After 

receiving the warnings, the defendant demonstrated with 

words and with behavior that he heard, read, and understood 

them . . . and that he agreed to speak with officers."

Accordingly, we conclude, as the motion judge did, that the 

defendant was properly given his Miranda warnings and made a 

4 The transcript of the defendant's interview with police 

suggests that Butler mispronounced two Spanish words, 

"contestar" and "guardar," as "contester" and "guarder,"

respectively. Despite the defendant's contention on appeal that 

these minor mispronunciations caused him not to understand the 

Miranda warnings, we note that during the interview the 

defendant stated that he understood the warnings as read to him, 

and subsequently he had the opportunity to read the warnings in 

Spanish, which provided the correct terms.
13

knowing, intelligent, and voluntary waiver of his Miranda 

rights. See Delossantos, 492 Mass. at 250.

ii. Police misconduct and voluntariness. The defendant 

next contends that improper behavior by the police officers who 

interviewed him on January 18 rendered his statement to the 

police involuntary, thus requiring that the statements be 

suppressed. Although the voluntariness of a Miranda waiver and

the voluntariness of a statement to police are distinct 

inquiries, in both cases the issue on appeal is "whether the 

Commonwealth has proved, by a totality of the circumstances, 

that [the defendant] made a voluntary, knowing, and intelligent 

waiver of his rights, and that his statements were otherwise 

voluntary." Commonwealth v. Gallett, 481 Mass. 662, 655 (2019), 

quoting Commonwealth v. LeBeau, 451 Mass. 244, 254-255 (2008). 

Where there is evidence of misconduct by police during an 

interrogation, a defendant's statement will be considered 

involuntary if the misconduct by police resulted in the 

defendant's will being overborne. See, e.g., Commonwealth v. 

Durand, 457 Mass. 574, 596-597 (2010), S.C., 475 Mass. 657 

(2016), cert. denied, 583 U.S. 896 (2017) (no suppression 

required where "the incriminating statements made by the 

defendant were not tied to or otherwise made in response to the 

pressure tactics employed by the officers").

The motion judge found that the officers interviewing the 
14

defendant had acted improperly by making assurances that a 

confession would assist the defendant and by telling him that 

they would find incriminating "microscopic evidence" in his home 

and that the interview was the only chance for him to tell his 

side of the story. However, the motion judge noted that the 

officers "made only one reference that could be interpreted as 

suggesting that cooperation would result in a lesser sentence," 

that the officers made only a single false representation 

(regarding inculpatory "microscopic evidence" in the defendant's 

home), and that the officers referred to a judge hearing only 

"the other side of the story" on one occasion. The motion judge 

also found that the defendant continued to deny any involvement 

in the victim's death despite the improper pressure tactics. 

Rather, the defendant only confessed when he was informed that 

the gun used in the attack had been found. Therefore, the 

motion judge concluded that the defendant's will was not 

overborne by the improper interrogation techniques. We agree.

Assurances by police, "express or implied that [a 

confession would] aid the defense or result in a lesser 

sentence" may render a confession to police involuntary and 

require its suppression (citation omitted). See Commonwealth v. 

Williams, 486 Mass. 646, 661 (2021). We have also "expressed 

our disapproval of police tactics that employ the use of false 

statements during an interrogation because such tactics cast 
15

doubt on the voluntariness of any subsequent confession or 

admission." Commonwealth v. Tremblay, 460 Mass. 199, 208 

(2011). Finally, police may not tell a defendant that if he 

does not speak with them, a judge or jury will never hear his 

side of the story. See Commonwealth v. Novo, 442 Mass. 262, 

268-269 (2004), S.C., 449 Mass. 84 (2007) ("plainly untrue" 

statements suggesting "that [the defendant's] right to tell his 

side of the story to a jury was conditioned on his revealing it 

to them during the interview" violated defendant's 

constitutional rights and rendered his confession inadmissible). 

However, there must be a causal link between police misconduct 

and a defendant's statement such that the defendant's will is 

overborne for the statement to be suppressed as involuntary. 

Compare Durand, 457 Mass. at 596-597 (suppression not required 

where "the incriminating statements made by the defendant were 

not tied to or otherwise made in response to the pressure 

tactics employed by the officers"), with Novo, supra at 267-269 

("now or never" theme, which was "repeated incessantly," and 

"persisted up to and through [the defendant's] confession" cast 

substantial doubt on voluntariness of subsequent confession and 

required suppression). 

We conclude, as did the motion judge, that during the 

interview, "the defendant resisted all efforts to pressure him 

to admit his involvement in the shooting, despite repeated and
16

intense admonitions to cooperate." Rather, the defendant 

admitted to the shooting only after the officers truthfully told 

him that they had recovered his gun, when he recognized "that 

the evidence against him was overwhelming." We also note the 

motion judge's finding that "[d]uring the entire interview, the 

defendant remained calm, alert, focused and responsive. He did 

not appear to be physically uncomfortable, unduly fatigued, or 

in any apparent distress." Once the defendant was confronted 

with the fact that police had recovered the firearm, however, 

"[he] changed his posture and slumped forward in his chair and 

put his head down" before confessing to shooting the victim. 

This strengthens the conclusion that it was not improper tactics 

by police but tangible evidence of his guilt that convinced the 

defendant to confess to the murder. Accordingly, although the 

officers may have acted improperly in questioning the defendant, 

these improper tactics did not coerce the defendant into 

confessing, and thus his confession to the police was voluntary. 

See Durand, 457 Mass. at 596-597.

iii. Telephone right. The defendant next argues that his 

statement to police should have been suppressed because he was 

not informed of his right to use a telephone under G. L. c. 276, 

§ 33A. We review the motion judge's denial of the defendant's 

motion to suppress on this ground for clear error. See 

Commonwealth v. Morris, 492 Mass. 498, 509 (2023).
17

Under G. L. c. 276, § 33A, an arrested person has a right 

to make a telephone call. If an arrested person's right to make 

a telephone call is intentionally violated, statements made to 

police must be suppressed. Gallett, 481 Mass. at 672, citing 

Commonwealth v. Walker, 466 Mass. 268, 278 (2013). However, 

"[a] defendant's rights under [§ 33A] are triggered by . . .

formal arrest, not by the custodial nature of any prearrest 

interrogation." Commonwealth v. Hampton, 457 Mass. 152, 155

(2010), citing Commonwealth v. Rivera, 441 Mass. 358, 374-375 

(2004). 

A formal arrest occurs when there is (1) "an actual or 

constructive seizure or detention of the person," (2) "performed 

with the intention to effect an arrest," and (3) it is "so 

understood by the person detained." Hampton, 457 Mass. at 158, 

quoting Commonwealth v. Cook, 419 Mass. 192, 198 (1994), S.C., 

447 Mass. 1023 (2006) and 451 Mass. 1008 (2008). Whether a 

defendant has been seized depends on whether, given the totality 

of the circumstances, "a reasonable person would have believed 

he was not free to leave." Commonwealth v. Martinez, 458 Mass. 

684, 695 (2011), quoting Cook, supra at 199.

Here, the motion judge found that the defendant was in 

custody for Miranda purposes during his interview with the 

police. The judge reasoned that because the defendant was 

awakened by several police officers with their weapons drawn, a 
18

reasonable person in his circumstances would not have felt free 

to decline the officers' request that he come to the police 

station. Indeed, the defendant waited at the police station for 

over three hours before being brought to the interview room, 

leading the motion judge to conclude that "no person in the 

defendant's circumstances would have remained for such a long 

period of time if he felt free to leave." The motion judge 

nonetheless concluded that, notwithstanding the custodial nature 

of the police interview, the defendant was not unlawfully 

deprived of his telephone rights because he was not formally 

arrested until he was booked after the interview concluded.

Police officers testified at the motion to suppress hearing 

that they did not intend to arrest the defendant until he 

admitted to the murder when confronted with the evidence of the 

firearm recovered from Interiano and Pineda's house. This 

police testimony was implicitly credited by the motion judge, 

who concluded that the police interrogation of the defendant 

preceded his formal arrest. We discern no error in the motion 

judge's conclusion, particularly where, as discussed infra, 

there is substantial evidence that until the defendant confessed 

to the murder, the police believed they lacked probable cause to 

arrest him. See Hampton, 457 Mass. at 158 (no arrest 

necessitating telephone rights where police lacked intent to 

arrest defendant until after they obtained incriminating 
19

statement during interview).

iv. Prompt arraignment. The defendant next contends that 

his statements should have been suppressed because they were 

taken in violation of his right to a prompt arraignment. After 

being arrested, a criminal defendant has the right to be 

arraigned "as soon as is reasonably possible." Commonwealth v. 

Powell, 468 Mass. 272, 275 (2014), citing Mass. R. Crim. P. 

7 (a) (1), as appearing in 461 Mass. 1501 (2012). In

Commonwealth v. Rosario, 422 Mass. 48, 56 (1996), we established 

a bright-line rule governing the admissibility of statements 

made by defendants awaiting arraignment. Otherwise admissible 

statements made in the six-hour window following arrest will not 

be suppressed on the ground of unreasonable delay in 

arraignment, but "[s]tatements made after the six-hour period 

following arrest are inadmissible." Powell, supra at 276, 

citing Rosario, supra at 56-57. The issue of prompt arraignment 

was not raised prior to the instant appeal, and thus we review 

the issue only for a substantial likelihood of a miscarriage of 

justice. See Commonwealth v. Miranda, 492 Mass. 301, 305 

(2023), quoting Commonwealth v. Denson, 489 Mass. 138, 144 

(2022).

The six-hour Rosario safe harbor period begins when a 

defendant is arrested. Martinez, 458 Mass. at 694, citing 

Rosario, 422 Mass. at 56. "An arrest occurs where there is [1] 
20

'an actual or constructive seizure or detention of the person, 

[2] performed with the intention to effect an arrest and [3] so 

understood by the person detained.'" Martinez, supra at 694-

695, quoting Commonwealth v. Grandison, 433 Mass. 135, 145 

(2001). Whether a defendant has been seized depends on whether, 

given the totality of the circumstances, "a reasonable person 

would have believed he was not free to leave." Martinez, supra

at 695, quoting Cook, 419 Mass. at 199. The defendant's 

interview ended at around 6 A.M. on January 18, 2015, so the 

issue is whether the defendant was arrested prior to midnight on 

January 18. 

As discussed supra, the motion judge concluded that the 

defendant was in police custody and thus was seized, as 

evidenced by the fact that the defendant was awakened by 

multiple police officers with their weapons drawn, as well as 

the fact that he stayed in the Everett police station for 

several hours before his interrogation began, which suggests

that a reasonable person in the defendant's circumstances would 

not have felt free to leave. 

As to the second prong, there was evidence presented at the 

motion to suppress hearing that police did not intend to arrest 

the defendant until he confessed to the killing at around 4 A.M. 

Trooper Cashman testified that he did not believe he had 

probable cause to arrest the defendant until the defendant
21

confessed to shooting the victim. Cashman also stated that 

prior to the confession, the defendant was free to leave the 

interview. When the defendant's interview began, police were 

still actively investigating the murder and had not concluded 

that the defendant had killed the victim. Indeed, police only 

recovered the defendant's firearm at around 3 A.M., in the 

middle of the defendant's interrogation, which supports the 

conclusion that when the defendant's interrogation began at 

12:55 A.M., the police did not intend to arrest him. Thus, even 

assuming that the defendant was constructively arrested at 4 

A.M., when he confessed to killing the victim and police thus 

understood that they had probable cause to arrest him, the 

defendant's interrogation was concluded prior to the close of 

the six-hour Rosario safe harbor. Therefore, the admission of 

the defendant's statement to police did not create a substantial 

likelihood of a miscarriage of justice on this basis. See 

Martinez, 458 Mass. at 594; Rosario, 422 Mass. at 56.

b. Motion for a mistrial. Next, the defendant contends 

that the trial judge abused her discretion in denying the 

defendant's motion for a mistrial. Prior to trial, the trial

judge ruled that there would be no mention of any witness's 

immigration status during the trial without prior approval of 

the court. Additionally, the defense and the Commonwealth 

agreed to certain redactions from the video recording of the 
22

defendant's police interview before it was shown to the jury. 

On the seventh day of the trial, defense counsel moved for 

a mistrial, or, in the alternative, sanctions against the 

Commonwealth. The defendant challenged three pieces of evidence

introduced at trial: testimony by Everett police Lieutenant

Scott Stallbaum that Everett has a large population of 

undocumented immigrants; testimony by police Officer Michael 

Lavey referring to the defendant's home as "like a boarding 

house, undocumented wooden house"; and a portion of the 

unredacted police interview videotape inadvertently shown to the 

jury, which included a statement that "many people have told 

[the police] that [the defendant] carries a gun" and the 

question "do you know where Eighteenth Street is?" the latter 

being a reference to the Eighteenth Street gang. The trial 

judge denied the motion for a mistrial.

"The decision whether to declare a mistrial is within the 

discretion of the trial judge." Commonwealth v. Bryant, 447 

Mass. 494, 503 (2006). Accordingly, we defer to the trial 

judge's decision unless that decision represents a "clear error 

of judgment in weighing the factors relevant to the decision, 

such that the decision falls outside the range of reasonable 

alternatives" (quotation and citation omitted). L.L. v. 

Commonwealth, 470 Mass 169, 185 n.27 (2014). "Where a party 

seeks a mistrial in response to the jury's exposure to 
23

inadmissible evidence, the judge may 'correctly rel[y] on 

curative instructions as an adequate means to correct any error 

and to remedy any prejudice to the defendant.'" Bryant, supra, 

quoting Commonwealth v. Kilburn, 426 Mass. 31, 37-38 (1997). 

We discern no abuse of discretion by the trial judge in 

denying the defendant's motion for a mistrial. At the beginning 

of his direct examination, the prosecutor asked Lieutenant 

Stallbaum to identify the cities and towns that border Everett 

and to provide the approximate population of Everett. Stallbaum 

replied, "On the census, I think it's thirty-five to forty 

thousand, but we have a large undocumented community, so it's 

probably around fifty thousand." The Commonwealth argued that

this line of questioning was appropriate to familiarize the jury 

with the city of Everett. The prosecutor further stated that

Stallbaum's statement about the undocumented population of 

Everett was a surprise to the prosecution, and that the 

statement by itself did not imply that the defendant was a 

member of Everett's undocumented population. Similarly, Lavey's 

testimony describing the defendant's home as an undocumented 

boarding house appears to have been spontaneous testimony by the 

officer in response to an otherwise permissible question by the 

prosecution. Furthermore, Lavey's answer was objected to by the 

defendant and struck by the judge, and the jury were instructed 

to disregard the answer. Accordingly, the record does not 
24

suggest that either remark was so inflammatory that the trial 

judge abused her discretion in not declaring a mistrial. See 

Commonwealth v. Doughty, 491 Mass. 788, 796-797 (2023) (no abuse 

of discretion in denying motion for mistrial where statement was 

surprise to prosecutor, not highlighted, and not repeated during 

remainder of trial). See also Bryant, 447 Mass. at 503-504 

(discussing cases where spontaneous statements by witnesses did 

not require mistrial). 

Regarding the unredacted videotaped interview, the judge 

found that the Commonwealth showed the unredacted portion of the 

video recording by mistake and turned off the tape when the 

mistake was realized. The trial judge offered to provide a 

curative instruction to the jury, but this offer was rejected by 

the defense counsel, who reasoned that a curative instruction 

would draw attention to the redacted material. We thus find no 

abuse of discretion by the trial judge in denying the 

defendant's motion for a mistrial. See Bryant, 447 Mass. at 503 

(curative instructions are adequate means to correct errors and 

to remedy prejudice to defendant from inadmissible evidence 

being presented at trial).

c. Jury instructions. The defendant requested that the 

jury hear instructions on both voluntary manslaughter and 

involuntary manslaughter. On appeal, the defendant contends 

that the trial judge erred by declining to provide these jury 
25

instructions. We address each proposed jury instruction in 

turn. 

i. Voluntary manslaughter instruction. The defendant 

argues that the judge erred in failing to instruct the jury on 

voluntary manslaughter based on mitigating factors of reasonable 

provocation, sudden combat, and excessive use of force in selfdefense. Because the defendant preserved the issue,5 we review 

for prejudicial error, "inquir[ing] whether there is a 

reasonable possibility that the error might have contributed to 

the jury's verdict." Miranda, 492 Mass. at 306, quoting 

Commonwealth v. Odgren, 483 Mass. 41, 46 (2019). "Voluntary 

manslaughter is an unlawful killing arising not from malice, but 

from . . . sudden [heat of] passion induced by reasonable 

provocation, sudden combat, or [the use of] excessive force in 

self-defense." Miranda, supra at 307, quoting Commonwealth v. 

Richards, 485 Mass. 896, 918 (2020). "In deciding whether an 

instruction is warranted regarding these mitigating 

circumstances, the evidence must be viewed in the light most 

favorable to the defendant." Miranda, supra, quoting Richards, 

5 Based on the record, it does not appear that the defendant 

specifically objected to the omission of the voluntary 

manslaughter instruction, but we nonetheless consider the issue 

preserved where, as here, "defense counsel requests a specific 

instruction and the judge rejects it, or gives an instruction 

inconsistent with the requested one." Commonwealth v. Vacher, 

469 Mass. 425, 442-443 (2014). We also note that the 

Commonwealth agrees that the issue was properly preserved. 
26

supra. 

A. Reasonable provocation and sudden combat. An 

instruction on reasonable provocation must be given 

"where the evidence raises 'a reasonable doubt that 

something happened which would have been likely to produce 

in an ordinary person such a state of passion, anger, fear, 

fright, or nervous excitement as would eclipse his capacity

for reflection or restraint, and that what happened 

actually did produce such a state of mind in the 

defendant."

Richards, 485 Mass. at 918, quoting Commonwealth v. Rhodes, 482 

Mass. 823, 826 (2019). Although "physical contact between a 

defendant and a victim is not always sufficient to warrant a 

manslaughter instruction," Commonwealth v. Walden, 380 Mass. 

724, 727 (1980), "even a single blow[] may amount to reasonable 

provocation," Model Jury Instructions on Homicide 77 (2018). 

Sudden combat is a form of reasonable provocation that we 

have long described as when two people "meet, not intending to 

quarrel, and angry words suddenly arise, and a conflict springs 

up in which blows are given on both sides, without much regard 

to who is the assailant," and in the course of such combat one 

combatant kills the other with a deadly weapon. Commonwealth v. 

Howard, 479 Mass. 52, 58 (2018), quoting Commonwealth v. 

Webster, 5 Cush. 295, 308 (1850). Neither a reasonable 

provocation instruction nor a sudden combat instruction is

necessary if the defendant "cooled off and regained a measure of 

self-control before attacking the victim," or where there is a 
27

break in the fight "and then the defendant seeks out the victim"

(quotations and citations omitted). Miranda, 492 Mass. at 307.

In the light most favorable to the defendant, the jury 

heard evidence that the defendant and the victim were arguing as 

they left the house, and that once outside, the argument 

escalated and turned violent, with both men pushing each other, 

throwing punches, and fighting on the ground after both men 

fell. The jury might also have credited the defendant's 

statement to the police denying that he followed the victim, and 

instead asserting that the two men "kept fighting" as they 

walked from the house to Elmwood Street, and that once on 

Elmwood Street, the defendant "went crazy," pulled out the 

pistol, and fired several times at the victim. The jury 

therefore could have concluded, if they credited this statement, 

as opposed to others made by the defendant or other witnesses,

that the defendant killed the victim in the heat of passion 

arising from reasonable provocation or sudden combat. As a 

result, the judge erred in not instructing the jury on voluntary 

manslaughter. 

Where the defendant requested voluntary manslaughter 

instructions and the judge did not provide them, we must decide 

whether this error was prejudicial. "An error is not 

prejudicial only if the Commonwealth can show 'with fair 

assurance . . . that the judgment was not substantially swayed'
28

by it." Commonwealth v. Martin, 484 Mass. 634, 647 (2020), 

cert. denied, 141 S. Ct. 1519 (2021), quoting Commonwealth v. 

Rosado, 428 Mass. 76, 79 (1998). In other words, we must decide 

"whether there is a reasonable possibility that the error might 

have contributed to the jury's verdict." Miranda, 492 Mass. at

306, quoting Odgren, 483 Mass. at 46. We conclude, with fair 

assurance, that the defendant was not prejudiced by this error. 

The trial judge instructed the jury on murder in the first 

degree on theories of deliberate premeditation and extreme 

atrocity or cruelty, as well as murder in the second degree. 

The jury were instructed that to convict the defendant of murder 

in the first degree with deliberate premeditation, they must 

find beyond a reasonable doubt that the defendant decided to 

kill the victim after a period of reflection, meaning that the 

defendant considered whether to kill the victim and decided to 

kill him and the killing arose from that decision. The jury 

were specifically instructed that there is no deliberate 

premeditation where the action is taken so quickly that a 

defendant takes no time to reflect on the action. As a result, 

if the jury had a reasonable doubt whether the events occurred 

as described by the defendant to the police, which involved a 

protracted fight and the defendant "[going] crazy" before 

shooting the victim, they were required to find the defendant 

not guilty of murder in the first degree with deliberate 
29

premeditation. Instead, they found the defendant guilty on 

theories of both deliberate premeditation and extreme atrocity 

or cruelty. The defense at trial was also that the defendant 

did not shoot the victim, but only fought with him, and that 

someone else did the shooting. Because of these instructions 

and the paucity of evidentiary support for a finding of 

voluntary manslaughter, see infra, we conclude with fair 

assurance that the defendant was not prejudiced by the erroneous 

omission of the voluntary manslaughter instruction. See Martin, 

484 Mass. at 647-648 (jury instructions and verdict inconsistent 

with jury believing version of events supporting voluntary 

manslaughter, coupled with "feeble evidence" supporting 

manslaughter, made clear defendant was not prejudiced by failure 

to instruct jury on manslaughter). Cf. Commonwealth v. Felix, 

476 Mass. 750, 758-759 (2017) ("the time required to strangle 

the victim . . . supported a finding of deliberate premeditation 

inconsistent with sudden provocation"). 

The tenuous evidence that could support a verdict of 

voluntary manslaughter on theories of reasonable provocation or 

sudden combat contributes to our conclusion that the defendant 

was not prejudiced by the omission of instructions on reasonable 

provocation or sudden combat. See Martin, 484 Mass. at 647-648. 

In order for the defendant to have been found guilty of 

voluntary manslaughter because of reasonable provocation or 
30

sudden combat, the jury would have needed to credit the 

defendant's statement that he did not follow the victim and that 

instead the fight continued without stopping for nearly three 

hundred feet from the driveway to Elmwood Street, where the 

victim's body was found. See Miranda, 492 Mass. at 307 

("Regardless of the theory evoked, a voluntary manslaughter 

instruction is not warranted when the defendant 'cooled off' and 

regained a measure of self-control before attacking the victim 

or where the defendant and victim are separated for a few 

minutes following the provocation and then the defendant seeks 

out the victim" [quotations and citations omitted]). To so 

find, the jury would have needed to disbelieve the defendant's 

earlier statement to the police that he followed the victim 

after the victim left the house, the trial testimony of 

Interiano and Pineda that the defendant followed the victim 

after the victim fled, and the defendant's own trial testimony, 

where he denied involvement in shooting the victim entirely. 

The improbability of this finding by the jury supports our 

conclusion that the defendant was not prejudiced by the trial 

judge's erroneous omission of jury instructions on sudden combat 

or reasonable provocation. See Martin, supra at 648 ("feeble 

evidence supporting a finding of manslaughter" contributed to 

conclusion that defendant was not prejudiced by failure to 

instruct on voluntary manslaughter).
31

B. Excessive use of force in self-defense. To receive a 

jury instruction on excessive use of force in self-defense, "the 

defendant must be entitled to act in self-defense." 

Commonwealth v. Yat Fung Ng, 489 Mass. 242, 266 (2022), S.C., 

491 Mass. 247 (2023), quoting Commonwealth v. Anestal, 463 Mass. 

655, 674 (2012). In turn, a self-defense instruction is only 

necessary where "there is some evidence that the defendant 

availed himself of all means, proper and reasonable in the 

circumstances, of retreating from the conflict before resorting 

to the use of deadly force." Yat Fung Ng, supra at 253, quoting 

Commonwealth v. Benoit, 452 Mass. 212, 226-227 (2008).

Even viewing the evidence in the light most favorable to 

the defendant, no reasonable jury could conclude, solely on the 

basis of the defendant's isolated statement to the police, that 

after fighting for several minutes in front of the house, the 

defendant and the victim "kept fighting" over a distance of 

nearly three hundred feet to where the victim was shot on 

Elmwood Street, and that at no point did the armed defendant 

have the opportunity to retreat. There was also undisputed

evidence that Interiano interceded in the fight and separated 

the defendant and the victim at least once. See Commonwealth v. 

Berry, 431 Mass. 326, 335 (2000) (defendant not entitled to 

self-defense instruction where "the fight was on a public street 

and at least at some point [the defendant] had adequate means of 
32

escape"). Finally, the only apparent injury to the defendant 

was to his knuckles. Accordingly, the trial judge did not err 

in declining to instruct the jury on voluntary manslaughter 

under the theory of excessive use of force in self-defense.

ii. Involuntary manslaughter. The defendant also argues 

that the trial judge erred by declining to give an instruction 

on involuntary manslaughter. When a defendant is charged with 

murder, an instruction on involuntary manslaughter is 

appropriate where a "reasonable view of the evidence would 

[permit] the jury to find wanton [or] reckless conduct rather 

than actions from which a plain and strong likelihood of death 

would follow" (quotations omitted). Commonwealth v. Concepcion, 

487 Mass. 77, 92, cert. denied, 142 S. Ct. 408 (2021), quoting 

Commonwealth v. Tavares, 471 Mass. 430, 438 (2015). Conversely, 

"[w]hen it is obvious . . . that the risk of physical harm to 

the victim created a plain and strong likelihood that death will 

follow, an instruction on involuntary manslaughter is not 

required" (citation omitted). Commonwealth v. Moseley, 483 

Mass. 295, 303 (2019). The defendant requested an involuntary 

manslaughter instruction and objected when it was denied, so we 

review for prejudicial error. See Commonwealth v. Pina, 481 

Mass. 413, 417-418 (2019).

A defendant shooting at a victim creates a plain and strong 

likelihood of death, negating the possibility of a finding of 
33

involuntary manslaughter. See, e.g., Concepcion, 487 Mass. at 

93 (no involuntary manslaughter instruction necessary where 

"defendant shot a firearm at the victim multiple times, firing 

an initial pair of rounds before changing his position and 

continuing to shoot"); Commonwealth v. Watt, 484 Mass. 742, 752 

(2020), S.C., 493 Mass. 216 and 493 Mass. 322 (2024) (no 

involuntary manslaughter instruction required where apparent 

shooter "intentionally shot multiple times at the two victims").

"[D]ischarging a shot at another person, regardless of whether 

the shot is meant to injure or kill, . . . 'creates a plain and 

strong likelihood of death.'" Pina, 481 Mass. at 424, quoting 

Commonwealth v. Mack, 423 Mass. 288, 290 (1996). 

In the present case, the jury heard the defendant's 

statement to police that as the defendant and the victim 

continued to fight, the defendant "went crazy and . . . got the 

weapon out" and fired at the victim. Although the defendant

also told the police that he did not see where he hit the 

victim, the jury heard evidence that the victim was shot through 

the eye at close range and was also shot twice in the back of 

the head. The evidence that the defendant was drinking does not 

change our analysis. See Commonwealth v. Sires, 413 Mass. 292, 

302-303 (1992) (even where there is evidence that defendant had 

consumed alcohol, "[t]he traditional elements of involuntary 

manslaughter must be shown by evidence that the jury might 
34

believe before an instruction on involuntary manslaughter is 

required"). Even considering the evidence in the light most 

favorable to the defendant, no reasonable jury could conclude 

that shooting at the victim at close range did not present a 

plain and strong likelihood of death, and thus the trial judge 

did not err in declining to instruct the jury on involuntary 

manslaughter. See Pina, 481 Mass. at 424. 

d. Testimony on scientific certainty. Finally, the 

defendant postulates that expert testimony describing 

fingerprint evidence and ballistic evidence "in absolute terms"

caused a substantial likelihood of a miscarriage of justice.6 

i. Fingerprint testimony. The defendant argues that 

expert testimony by the Commonwealth's fingerprint analysis 

expert impermissibly suggested a level of scientific certainty 

in testimony identifying a fingerprint on the firearm magazine 

as belonging to the defendant. The defendant did not object to 

the expert's testimony, so we review the testimony to determine 

6 The defendant also argues that the failure by defense 

counsel to object to the improper testimony constitutes 

ineffective assistance of counsel. When a defendant has been 

convicted of murder in the first degree, "we review his claim of 

ineffective assistance of counsel to determine whether the 

alleged lapse created a 'substantial likelihood of a miscarriage 

of justice,'" so both inquiries are ultimately the same. 

Commonwealth v. Louis, 487 Mass. 759, 763 (2021), quoting 

Commonwealth v. Fulgiam, 477 Mass. 20, 29, cert. denied, 583 

U.S. 923 (2017).
35

whether the testimony was improper and whether any improper 

testimony created a substantial likelihood of a miscarriage of 

justice. See Commonwealth v. Armstrong, 492 Mass. 341, 354

(2023).

State police Trooper Sidney Chambers testified as to the 

fingerprint identification that matched a latent fingerprint7 on 

the magazine of the firearm recovered at Interiano and Pineda's

house with the defendant's left ring finger. During crossexamination defense counsel asked Chambers, "Now you can't say 

that one hundred percent, you cannot be one hundred percent 

[certain] of the identification you made with the print; can 

you?" to which Chambers responded, "No, I absolutely can." When 

pressed, Chambers reaffirmed that he was one hundred percent 

certain that his identification of the fingerprint as belonging 

to the defendant was correct. 

We have previously considered scientific literature on the 

limitations of ACE-V8 fingerprint analysis -- the methodology 

used by Chambers in this case. See Commonwealth v. Gambora, 457 

7 A latent fingerprint is a fingerprint impression that is 

generally not visible to the naked eye without chemical 

enhancement. See Commonwealth v. Patterson, 445 Mass. 626, 629 

(2005).

8 ACE-V stands for analysis, comparison, evaluation, and 

verification. Commonwealth v. Gambora, 457 Mass. 715, 721 

(2010).
36

Mass. 715, 724-726 (2010). We have therefore offered guidance 

that "[t]estimony to the effect that a latent print matches 

. . . a known print, if it is to be offered, should be presented 

as an opinion, not a fact, and opinions expressing absolute 

certainty about, or the infallibility of, an 'individualization' 

of a print should be avoided." Id. at 729 n.22. 

Trooper Chambers's testimony was improper because it 

"express[ed] absolute certainty" that the fingerprint found on 

the magazine of the firearm corresponded to the defendant. See 

Gambora, 457 Mass. at 729. The defendant contends that the

testimony created a substantial likelihood of a miscarriage of 

justice because it provided a link between the defendant and the 

weapon. The defendant's argument is belied, however, by the 

plethora of other evidence tying the defendant to the firearm.9 

See, e.g., Armstrong, 492 Mass. at 357-358 (no substantial 

likelihood of miscarriage of justice where evidence linking 

defendant to crime besides fingerprint evidence was strong).

For example, the defendant's own trial testimony acknowledged 

9 We also note that the remainder of defense counsel's 

cross-examination of Chambers elicited testimony regarding the 

scientific community's consensus regarding the fallibility of 

fingerprint identification, and that this theme was reiterated 

by defense counsel in closing arguments. See Armstrong, 492 

Mass. at 357, quoting Commonwealth v. Fulgiam, 477 Mass 20, 45, 

cert. denied, 583 U.S. 923 (2017) ("the vigorous crossexamination of the analyst countered any possible misconception 

that individualization is infallible").
37

that he owned the firearm recovered from Interiano and Pineda's

house. The jury also watched a video recording of the 

defendant's statement to police, wherein he also stated that he 

owned the firearm, stated and demonstrated how he had used it to 

shoot the victim, and described the steps he had taken to hide 

the firearm after the murder. Furthermore, Interiano testified 

at trial and corroborated the account of the two men hiding the 

firearm in the basement. Given this evidence, any erroneous 

testimony by Chambers did not create a substantial likelihood of 

a miscarriage of justice. 

ii. Ballistics testimony. The defendant also argues that 

improper testimony by the Commonwealth's ballistics expert as to 

the scientific degree of certainty of ballistics evidence 

created a substantial likelihood of a miscarriage of justice by 

suggesting to the jury it was scientifically certain that the 

firearm recovered from Interiano and Pineda's house was the 

murder weapon. Defense counsel did not object to the testimony, 

so we consider whether any improper testimony from the 

ballistics expert created a substantial likelihood of a 

miscarriage of justice. See Yat Fung Ng, 489 Mass. at 247.

At trial, State police ballistics expert Trooper Michael 

Bonasoro testified as to tests he had conducted with the firearm 

recovered from Interiano and Pineda's house. Based on the 

results of those tests, Bonasoro concluded that the firearm 
38

recovered from the house was the murder weapon. Specifically, 

Bonasoro testified that the unique marks found on the cartridge 

casings at the scene, when compared to casings from test fires 

of the firearm, enabled him "to form an opinion beyond a 

reasonable doubt of ballistic certainty that these marks were 

produced from" the firearm recovered from the house. Bonasoro 

also agreed that his statement was made "with a degree of 

scientific certainty." 

"Where a qualified expert has identified sufficient 

individual characteristic toolmarks reasonably to offer an 

opinion that a particular firearm fired a projectile or 

cartridge casing recovered as evidence, the expert may offer 

that opinion to a 'reasonable degree of ballistic certainty.'" 

Commonwealth v. Pytou Heang, 458 Mass. 827, 848 (2011). We have 

specifically disapproved of the use of "[p]hrases that could 

give the jury of an impression of greater certainty." Id. at 

849. 

Here, Bonasoro's testimony that the firearm recovered from 

Interiano and Pineda's house was the weapon that discharged the 

casings recovered from Elmwood Street "beyond a reasonable doubt 

of ballistic certainty" was improper. See Pytou Heang, 458 

Mass. at 848. The proper formulation is, as stated supra, "to a 

reasonable degree of ballistic certainty." Id. It was also

improper for Bonasoro to agree that his statements were made 
39

"with a degree of scientific certainty." We have expressly 

stated that "[t]he phrase 'reasonable degree of scientific 

certainty' should . . . be avoided because it suggests that 

forensic ballistics is a science, where it is clearly as much an 

art as a science." Id. at 849. Bonasoro's formulation, albeit 

somewhat different, invites similar confusion. Therefore, we 

must determine whether Bonasoro's improper testimony created a 

substantial likelihood of a miscarriage of justice, meaning that

the error likely influenced the jury's decision. See Yat Fung 

Ng, 489 Mass. at 247.

Because there was ample evidence tying the firearm to the 

murder outside of Bonasoro's testimony, we conclude that there 

was no substantial likelihood of a miscarriage of justice. See

Armstrong, 492 Mass. at 357-358. The defendant admitted in his 

testimony at trial that he owned the firearm recovered from 

Interiano and Pineda's house, and further admitted that he had 

brought it to the house on the night of the murder. In the 

video recording of his police interrogation, the jury heard the 

defendant admit that he shot the victim several times with the 

firearm and explain the steps he took to hide the firearm after 

committing the crime. Interiano's testimony corroborated the 

account of the defendant returning to the house after his fight 

with the victim and hiding the firearm in the basement. 

Finally, the jury heard evidence that the firearm was a .40 
40

caliber pistol, consistent with the .40 caliber casings 

recovered from the crime scene. Thus, Bonasoro's testimony, 

although improper, did not create a significant likelihood of a 

miscarriage of justice. See Armstrong, supra (no substantial 

likelihood of miscarriage of justice from testimony expressing 

scientific certainty regarding fingerprint identification where 

Commonwealth's evidence apart from testimony was strong). 

e. Firearm convictions. The defendant was also convicted 

of unlawful possession of a firearm and unlawful possession of a 

loaded firearm. On appeal, the defendant argues that following 

the United States Supreme Court's decision in New York State 

Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 8 (2022), his 

convictions should be overturned because the jury were not 

instructed that the Commonwealth was required to prove beyond a 

reasonable doubt that the defendant did not have a valid 

firearms license. Whereas prior to Bruen, licensure was an 

affirmative defense to a charge of unlawful possession of a 

firearm, after Bruen we ruled "that the absence of a license is 

an essential element" of firearm possession offenses. Guardado

I, 491 Mass. at 690. We then held in Guardado II, 493 Mass. at 

12, that the proper remedy was to remand for a new trial on the 

firearm charges. See id. ("Because Bruen was decided after the 

defendant's trial but while the case was pending on appeal, he 

is entitled to the benefit of the new rule; that is, the right 
41

to have the Commonwealth prove that he lacked a license"). 

In the present case, the defendant was convicted of 

possession of a firearm and possession of a loaded firearm

without the benefit of requiring the Commonwealth to prove 

beyond a reasonable doubt that he lacked a firearm license.

Accordingly, we vacate those convictions and remand for a new 

trial on those charges. See Guardado II, 493 Mass. at 12.

f. Review under G. L. c. 278, § 33E. We have carefully 

reviewed the entire record, pursuant to our duty under G. L. 

c. 278, § 33E, and find no reason to set aside the verdict or 

reduce the degree of guilt.

3. Conclusion. For the foregoing reasons, we affirm the 

defendant's conviction of murder in the first degree. We vacate

the defendant's firearm convictions and remand for a new trial

on those indictments. 

So ordered.