Commonwealth v. Ridley

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SJC-12751
COMMONWEALTH vs. KELLY D. RIDLEY, JR.
Barnstable. December 9, 2022. - February 17, 2023.
Present: Budd, C.J., Lowy, Cypher, Kafker, & Georges, JJ.
Homicide. Assault and Battery by Means of a Dangerous Weapon.
Witness, Expert. Evidence, Expert opinion, Relevancy and
materiality. Practice, Criminal, Argument by prosecutor,
Instructions to jury, Jury and jurors, Question by jury,
Presumptions and burden of proof, Sentence, Capital case.
Jury and Jurors. Constitutional Law, Sentence.
Indictments found and returned in the Superior Court
Department on December 21, 2016.
The cases were tried before Robert C. Rufo, J., and a
motion for a new trial, filed on May 21, 2021, was considered by
Thomas J. Perrino, J.
Elizabeth Caddick for the defendant.
Mary Nguyen, Assistant District Attorney, for the
Commonwealth.
LOWY, J. At a house party, in the early morning hours of
October 22, 2016, a series of verbal and physical fights broke
out between a number of party attendees, including the eighteen
2
year old defendant, Kelly D. Ridley, Jr., and the twenty-six
year old victim, Thomas Russell. During a brawl between the
defendant and the victim, the defendant stabbed the victim nine
times in the torso and leg, ultimately killing him. Following a
jury trial, the defendant was convicted of murder in the first
degree on the theory of extreme atrocity or cruelty.1 Following
his convictions, the defendant filed a motion for a new trial,
which was denied.
In this consolidated appeal, the defendant argues that a
new trial is required because (1) the judge excluded expert
testimony on late adolescent brain development; (2) the
prosecutor misstated the law of voluntary manslaughter during
closing argument; (3) the judge failed to provide an instruction
on involuntary manslaughter; and (4) the judge abused his
discretion in responding to a jury question. Additionally, the
defendant contends that, in light of his age at the time of the
crimes and the current research on late adolescent brain
development, we should extend the principles underlying Miller
v. Alabama, 567 U.S. 460 (2012), and its State law counterpart,
Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass.
655 (2013), S.C., 471 Mass. 12 (2015) (Diatchenko I), and
conclude that his sentence of life without the possibility of
1 The defendant also was convicted of two counts of assault
and battery by means of a dangerous weapon.
3
parole violates art. 26 of the Massachusetts Declaration of
Rights and the Eighth Amendment to the United States
Constitution. Finally, the defendant asks us to exercise our
authority under G. L. c. 278, § 33E, and reduce his conviction
of murder in the first degree to murder in the second degree or
voluntary manslaughter.
We conclude that there was no reversible error. After
thorough review of the record, we further discern no reason to
exercise our extraordinary authority under G. L. c. 278, § 33E,
to reduce the verdict to a lesser degree of guilt or order a new
trial.
Background. 1. Trial. We recite the facts as the jury
could have found them.
On the evening of October 21, 2016, the victim and his
cousin, David Gonsalves, went to a local bar and met up with a
group of the victim's friends, including Joseph France and
Magnum Desouza. Priscilla Coelho, a friend of both the victim
and the defendant, also was at the bar that night. She invited
the victim and his group of friends to a house party hosted by
the defendant.
The group proceeded to the defendant's house after the bar
closed. A dispute arose in the kitchen shortly after the victim
arrived at the party, which ultimately caused a disagreement
between the victim and another party attendee, Ricky Powell.
4
This disagreement eventually escalated to a physical altercation
between the victim and Powell outside in the street in front of
the house. A crowd of people followed the two outside to watch
them fight.
At some point during the fight between the victim and
Powell, the defendant attempted to jump into the fray.
Gonsalves eventually became involved as well, and a physical
altercation ensued between the defendant and Gonsalves; the two
wrestled each other on the ground, throwing punches, while
"talking trash." France ultimately broke up the fight between
the victim and Powell, and Desouza separated the defendant and
Gonsalves. In doing so, Desouza attempted to calm the defendant
down, but he appeared "determined."
After both physical altercations seemingly ended, the
victim walked up the driveway toward the house. The defendant
then "came out of nowhere" and struck the victim on his head or
upper back with a metal scooter. The defendant remarked, "How
do you like that, bitch?" Upon being struck with the scooter,
the victim appeared "shocked." He stumbled a bit, turned
around, and threw the defendant in the bushes, stating words to
the effect of, "Go inside little man." The defendant ran to the
steps of the house and started shouting that he was going to get
his gun. Gonsalves returned the shouting, "calling [the
5
defendant's] bluff," and taunting the defendant that he was not
going to follow through.
As the victim, Desouza, and Gonsalves walked down the
driveway to leave, the defendant came out of the house, now
shirtless, holding a five to six inch bladed knife in his right
hand. The defendant began waving the knife around, asking, "Who
wants it?" The defendant proceeded to the end of the driveway
and chased Gonsalves into the middle of the street with the
knife. The victim, who had walked farther away at this point,
turned and ran toward the defendant. The defendant still was
holding the knife; the victim was unarmed. The victim threw a
punch at the defendant, and a physical fight between the two
followed. During this fight, the defendant swung both of his
fists repeatedly into the victim's midsection, including the
fist that was holding the knife. The defendant stabbed the
victim nine times, striking both the torso and the left leg.
Michael James, a "father-like figure" to the defendant,2
attempted to break up the fight by grabbing the defendant, and
the defendant stabbed James in the stomach. Once the defendant
and the victim were separated, the defendant ran inside the
house.
2 None of the witnesses at trial knew or testified to the
precise familial relationship between the defendant and James,
but defense counsel in closing referred to James as the
defendant's uncle.
6
The victim took a couple steps before falling to the ground
and exclaiming, "I got stabbed." Desouza and France came to his
aid. The victim's abdomen and pants were covered in blood, and
there was a hole in his stomach and groin area. His intestines
were protruding from his body. The victim still was awake, with
his eyes wide open, and he was holding his stomach. He looked
France in the eyes, while France held his hand. France
attempted to talk to the victim and keep him awake, but the
victim, struggling to breathe, could not respond. The victim
remained conscious for a period of time, but when police and
paramedics arrived, the victim was unconscious and
nonresponsive. The paramedics transported the victim to a
hospital, where he later died of his stab wounds. An autopsy
revealed that all nine stab wounds contributed to his death, but
two had the potential to be fatal to the exclusion of the
others.
At some point before police and paramedics arrived at the
scene, the defendant fled out the back door of the house. He
traveled to a number of locations before eventually being found
by police the next day while being treated for minor injuries at
the same hospital where the victim died.
2. Prior proceedings. The defendant was indicted by a
grand jury on charges of murder in the first degree of the
victim, assault and battery by means of a dangerous weapon
7
(metal scooter) against the victim, and assault and battery by
means of a dangerous weapon (knife) against James. Before
trial, the defendant moved in limine to admit expert testimony
regarding the general characteristics of adolescent brain
development. The judge excluded the testimony, and trial
commenced in October 2018.
At trial, the defendant conceded that he stabbed and killed
the victim,3 but argued that the killing was voluntary
manslaughter based on heat of passion induced by reasonable
provocation or sudden combat. The defendant was found guilty on
all of the indictments and sentenced to life without the
possibility of parole on the charge of murder in the first
degree, as statutorily required, G. L. c. 265, § 2, and to two
concurrent sentences of from eight to ten years on the charges
of assault and battery by means of a dangerous weapon. The
defendant timely appealed. Following his conviction, the
defendant moved for a new trial, arguing that the judge erred in
responding to a jury question about the Commonwealth's burden of
proof, that his trial counsel was ineffective in failing to
object to the judge's response, and that his sentence of life
without the possibility of parole was unconstitutional. The
defendant's motion was denied, and his appeal from the denial of
3 The defendant also conceded that he was guilty of both
counts of assault and battery by means of a dangerous weapon.
8
his motion for a new trial was consolidated with his direct
appeal.
Discussion. 1. Expert testimony. Prior to trial, the
defendant filed a motion in limine to admit expert testimony by
Dr. Frank DiCataldo on adolescent brain development "to provide
the jury with some background of the general mental development
of someone in their late adolescence," to assist them in
determining whether the defendant possessed the requisite intent
to commit murder. In support of his motion, the defendant
submitted a transcript of DiCataldo's testimony on adolescent
brain development from another criminal case in which the
defendant also was eighteen years old at the time of his
offense. The Commonwealth moved to exclude the proposed
testimony on the basis that DiCataldo had not conducted an
individualized examination of the defendant or a review of his
records, and that expert testimony regarding the general
characteristics of adolescent brain development would not assist
the jury in determining the defendant's guilt. Following a
hearing, the judge allowed the Commonwealth's motion to exclude
the testimony.4
The defendant argues on appeal that the judge abused his
discretion in excluding DiCataldo's testimony and that he was
4 The judge allowed the motion "without prejudice." The
defendant did not renew the motion.
9
deprived of the right to present a defense under the Sixth and
Fourteenth Amendments to the United States Constitution and art.
12 of the Massachusetts Declaration of Rights. We conclude that
the judge did not err in excluding the proposed expert
testimony.
Generally, expert testimony may be admissible whenever "the
expert's scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to
determine a fact in issue."5 Mass. G. Evid. § 702(a) (2022).
5 To the extent that we have at times stated that this
standard requires that the expert testimony be beyond the common
knowledge or experience of jurors to be admissible, we clarify
that the primary focus of admissibility is whether the expert
testimony will help the trier of fact, even where the subject
matter of the testimony "may be within the knowledge or common
experience of the trier of fact." Commonwealth v. Little, 453
Mass. 766, 768 (2009). Rule 702 of the Federal Rules of
Evidence similarly uses a "helpfulness standard." See P.C.
Giannelli, Understanding Evidence 316 (5th ed. 2018)
(Giannelli). See also Fed. R. Evid. 702(a) (expert testimony
may be admissible where "the expert's scientific, technical, or
other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue"). This
standard is a more liberal formulation of the common-law
standard, which asked whether expert testimony was necessary
because the subject matter was beyond the ken or comprehension
of lay persons. Giannelli, supra. Rule 702 of the Federal
Rules of Evidence rejects the necessity test: "The question
under Rule 702 is not whether the jurors know something about
this subject, but whether the expert can expand their
understanding in a relevant way." Id. at 316 n.9, quoting Coble
v. State, 330 S.W.3d 253, 288 (Tex. Crim. App. 2010), cert.
denied, 564 U.S. 1020 (2011). The same standard applies under
our common-law rules of evidence.
10
See Commonwealth v. Little, 453 Mass. 766, 768 (2009). "This
condition goes primarily to relevance." Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 591 (1993). "Evidence is relevant
if (a) it has any tendency to make a fact more or less probable
than it would be without the evidence and (b) the fact is of
consequence in determining the action." Mass. G. Evid. § 401.
"Expert testimony which does not relate to any issue in the case
is not relevant and, ergo, non-helpful" (citation omitted).
Daubert, supra. See Ready, petitioner, 63 Mass. App. Ct. 171,
179 (2005) (expert testimony on sexual interest diagnostic test
properly excluded where test did not concern issues before
jury). "The decision to exclude expert testimony rests in the
broad discretion of the judge and will not be disturbed unless
the exercise of that discretion constitutes an abuse of
discretion or other error of law." Commonwealth v. Fernandes,
487 Mass. 770, 778 (2021), cert. denied, 142 S. Ct. 831 (2022),
quoting Palandjian v. Foster, 446 Mass. 100, 104 (2006).
The defendant contends that we approved of the admission of
this type of expert testimony on the general principles and
characteristics of adolescent brain development in Commonwealth
v. Okoro, 471 Mass. 51, 66-67 (2015). We did not; the
defendant's reliance on Okoro is misplaced. In Fernandes, we
emphasized that our conclusion in Okoro hinged on the connection
made between the expert testimony on adolescent brain
11
development and the individual defendant in that case. See
Fernandes, 487 Mass. at 781-782 ("The ability of an expert to
testify with respect to the individual defendant specifically is
critical"). Specifically, in Okoro, supra at 66, the expert
testified about how the development of adolescent brains "could
inform an understanding of [the] particular juvenile's capacity
for impulse control and reasoned decision-making" (emphasis
added). To the extent that the expert in Okoro testified in
general terms about the adolescent brain, he did so to compare
the defendant's specific condition of "'borderline deficient'
cognitive functioning" to that of adolescents generally. Id. at
53 & 64 n.21. Indeed, in Okoro we concluded that, although
expert testimony specific to the defendant was admissible
because it offered the jury assistance in determining whether
the defendant was able to form the requisite intent at the time
of the incident, "the trial judge was correct to preclude the
defendant from putting forward evidence that would have
suggested it was impossible for anyone the defendant's age to
formulate the necessary intent to commit this crime" because
"the Legislature has clearly indicated that youth in the
defendant's age group are considered capable of committing
murder." Id. at 65. See Commonwealth v. Ogden O., 448 Mass.
798, 805 n.6 (2007) ("respect for the legislative process means
that it is not the province of the court to sit and weigh
12
conflicting evidence supporting or opposing a legislative
enactment" [citation omitted]).
Applying those principles in Fernandes, we held that a
judge "may allow the introduction of expert testimony solely
with respect to 'general principles and characteristics of the
undeveloped adolescent brain' only when it is accompanied by
other evidence, such as testimony by a different expert, or
medical or school records, specific to the defendant."
Fernandes, 487 Mass. at 782. We explained that, without
evidence pertaining to the particular defendant, "evidence of
the 'general principles and characteristics of the undeveloped
adolescent brain' . . . is inadmissible" because "the expert's
testimony would present the jury with the impermissible
situation discussed in Okoro, 471 Mass. at 65-66," namely, by
allowing the jury to conclude, based on the testimony, that any
person in the defendant's age group could not form the requisite
intent for murder. See Fernandes, supra at 782 & n.10. Because
such a conclusion would impermissibly contradict a determination
already made by the Legislature, the expert testimony would not
assist the jury in resolving a fact in issue. Distilled to its
essence, expert testimony on adolescent brain development in
general is not helpful because it is not relevant. While
arguably probative of intent, it is not material -- whether
generally a person in the defendant's age group can form the
13
requisite intent for murder is not at issue. The Legislature
has spoken definitively on the matter. See G. L. c. 265, § 2.
Here, the defendant proffered no other evidence specific to
himself to accompany the proposed expert testimony by DiCataldo
regarding the general principles and characteristics of late
adolescent brain development. The proposed testimony thus was
inadmissible, and the judge properly excluded it.
2. Closing argument. The defendant next argues that the
prosecutor misstated the law of voluntary manslaughter during
closing argument. Because the defendant did not object, we
review to determine whether any error created a substantial
likelihood of a miscarriage of justice. See Commonwealth v.
Muller, 477 Mass. 415, 431 (2017).
"In closing argument, '[l]awyers shall not and must not
misstate principles of law.'" Commonwealth v. Bins, 465 Mass.
348, 367 (2013), quoting Commonwealth v. Haas, 373 Mass. 545,
557 (1977), S.C., 398 Mass. 806 (1986). Prosecutors "may,
however, argue 'forcefully for a conviction based on the
evidence and on inferences that may reasonably be drawn from the
evidence.'" Commonwealth v. Carriere, 470 Mass. 1, 19 (2014),
quoting Commonwealth v. Kozec, 399 Mass. 514, 516 (1987).
"Remarks made during closing arguments are considered in the
context of the entire argument, and in light of the judge's
instructions to the jury and the evidence at trial." Carriere,
14
supra, quoting Commonwealth v. Viriyahiranpaiboon, 412 Mass.
224, 231 (1992).
During closing argument, the prosecutor made the following
statements, the underlined portions of which the defendant now
challenges:6
"And think about it. Reasonable provocation. You get
punched. To believe that that's reasonable provocation,
anytime there was a fist fight, you would have the ability
and the right to eviscerate someone? I suggest not. . . .
"Respectfully suggest to you that all of this evidence of
going the opposite direction of Cape Cod Hospital, not
going to the hospital, going in the opposite direction
right after the crime, and then not going there for another
seven hours and then being seen to have superficial
injuries,[7] that sudden combat, a reasonable person would
not be overcome to the point of not being able to think by
being punched. . . .
"I'm going to ask you to use your common sense, use your
life experience and consider what would a reasonable person
feel or do in that situation? A punch, then warranting the
taking of a life, transporting you to a heat of passion
where you don't know what you're doing? The evidence shows
6 The defendant specifically challenges the emphasized
statements. We place the challenged statements in context, as
we must. See Carriere, 470 Mass. at 19.
7 We do not view the prosecutor's reference to the
defendant's injuries as "superficial" as a misstatement of law
that a defendant must be seriously injured to support a verdict
of voluntary manslaughter. As the defendant argues, "even a
single blow from the victim can constitute reasonable
provocation," Commonwealth v. Acevedo, 446 Mass. 435, 444
(2006), but the prosecutor here was entitled to argue that the
evidence that the defendant's injuries were minor suggested the
blows he sustained would not sufficiently provoke a reasonable
person in the circumstances, see Commonwealth v. Rembiszewski,
363 Mass. 311, 321 (1973) (evidence of scratches on defendant's
face insufficient for reasonable provocation).
15
Mr. Ridley knew what he was doing. He was murdering Thomas
Russell." (Emphases added.)
We have little trouble concluding that the latter two
statements, viewed in context, were not assertions of law by the
prosecutor but, rather, were forceful arguments that the
evidence in this case did not support a verdict of voluntary
manslaughter based on reasonable provocation or sudden combat.
See Commonwealth v. Yat Fung Ng, 489 Mass. 242, 257 (2022),
S.C., 491 Mass. 247 (2023) ("Reasonable provocation is
provocation [deemed adequate in law] by the person killed . . .
that would be likely to produce such a state of passion, anger,
fear, fright, or nervous excitement in a reasonable person as
would overwhelm his capacity for reflection or restraint and did
actually produce such a state of mind in the defendant"
[citation omitted]); Commonwealth v. Brea, 488 Mass. 150, 157
(2021) ("Sudden combat is a form of reasonable provocation. It
involves a sudden assault by the person killed . . . and the
defendant upon each other" [quotations and citations omitted]).
The first statement, however, is a closer call, and it is
difficult to discern the statement's meaning. It is phrased
broadly enough that it could be interpreted as stating that a
finding of reasonable provocation is equivalent to a conclusion
that the killing was justified, which is an incorrect statement
of law. See Commonwealth v. Rivera, 482 Mass. 259, 271 (2019),
16
citing Commonwealth v. Glover, 459 Mass. 836, 842 (2011)
(justification and mitigation "have distinct meanings in the
law"; "justification defense . . . could result in acquittal,
and mitigation defense, such as heat of passion, . . . at best
yields conviction of lesser offense of voluntary manslaughter").8
Nevertheless, this statement was isolated. The jury were told
on several occasions that the judge provides the instructions of
law. And the judge's instructions properly stated the law of
voluntary manslaughter, including reasonable provocation. We
presume that the jury followed these instructions. See Rivera,
supra. We conclude, as a result, that this passing statement
did not create a substantial likelihood of a miscarriage of
justice.9
Legal justification for a killing renders an intentional
8
homicide noncriminal. See Commonwealth v. Nardone, 406 Mass.
123, 130-131 (1989). Examples of legal justification include,
inter alia, "accident, mistake, self-defense, and defense of
another." Commonwealth v. McLaughlin, 431 Mass. 506, 514 n.7
(2000). The defendant did not assert a justification defense at
trial.
As a result, the defendant's claim that his counsel was
9
ineffective for not objecting to the prosecutor's closing
argument fails. Commonwealth v. Kolenovic, 478 Mass. 189, 192-
193 (2017), quoting Commonwealth v. Gulla, 476 Mass. 743, 745-
746 (2017) ("In the review of cases involving murder in the
first degree, '[r]ather than evaluating an ineffective
assistance claim under the traditional standard of Commonwealth
v. Saferian, 366 Mass. 89, 96 [1974], . . . we apply the
standard of G. L. c. 278, § 33E, to determine whether there was
a substantial likelihood of a miscarriage of justice'"). See
Commonwealth v. Kosilek, 423 Mass. 449, 457 (1996), quoting
Commonwealth v. Waite, 422 Mass. 792, 807 (1996) ("[I]f an error
17
3. Involuntary manslaughter instruction. The defendant
claims that the judge erred in denying his request for an
instruction on involuntary manslaughter based on the evidence
that he brought a knife into the situation by carrying it down
the driveway. "Involuntary manslaughter is an unlawful homicide
unintentionally caused by an act which constitutes such a
disregard of probable harmful consequences to another as to
amount to wanton or reckless conduct." Commonwealth v. Lopez,
485 Mass. 471, 484 (2020), quoting Commonwealth v. Carrillo, 483
Mass. 269, 275 (2019). "An instruction on involuntary
manslaughter is required where any view of the evidence would
permit a finding of manslaughter and not murder." Commonwealth
v. Moseley, 483 Mass. 295, 303 (2019), quoting Commonwealth v.
Pierce, 419 Mass. 28, 33 (1994). "When it is obvious, however,
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." Moseley, supra,
quoting Pierce, supra. "When determining whether such an
instruction was required, we consider the evidence in a light
most favorable to the defendant." Commonwealth v. Tague, 434
Mass. 510, 518 (2001), cert. denied, 534 U.S. 1146 (2002).
not objected to by trial counsel does not create a substantial
likelihood of a miscarriage of justice . . . , a claim of
ineffective assistance of counsel with respect to such error
will not succeed").
18
Here, viewing the evidence in the light most favorable to
the defendant, the defendant was not entitled to an instruction
on involuntary manslaughter. The killing was not the result of
the defendant merely bringing out the knife and carrying it down
the driveway. Rather, the evidence was that the defendant swung
the knife nine times into the unarmed victim's leg and abdomen.
The act of doing so clearly created a plain and strong
likelihood that death would follow. See Commonwealth v.
Concepcion, 487 Mass. 77, 92, cert. denied, 142 S. Ct. 408
(2021). See also Lopez, 485 Mass. at 485 ("Because it is
obvious that stabbing the victim created a plain and strong
likelihood that death would follow, an involuntary manslaughter
instruction was not warranted"). There was no error.
4. Response to jury question. Approximately two and one-
half hours into deliberations, the jury sent a note to the judge
with several questions and statements. Relevant here, one such
statement asserted: "Jury in agreement with charge with the
exception of whether or not Commonwealth has proven without
reasonable doubt there were mitigating circumstances." After
the judge read the jury's note to the prosecutor and defense
counsel at sidebar, he provided each with a copy of the note and
ordered a brief recess for both to consider their proposed
responses.
19
When counsel reconvened at sidebar, the judge suggested
that the relevant statement needed "further clarification"
because it was "not . . . worded in accordance with the
[c]ourt's instruction." Specifically, the judge commented that,
contrary to the jury's note, the Commonwealth must "prove beyond
a reasonable doubt that there were no mitigating circumstances.
Not that there were, [but] that there were no." See
Commonwealth v. Acevedo, 427 Mass. 714, 716 (1998) (correct rule
is that Commonwealth must prove absence of mitigating
circumstances). The prosecutor remarked that the jury had an
audio recording of the jury instructions with them in the
deliberation room. Notably, the jury also were provided an
outline of the audio recording, which listed the time in the
recording that each individual instruction could be located.
The prosecutor proposed that the judge respond to the
jury's statement by advising the jury of their ability to replay
the judge's instructions. Defense counsel agreed, stating, "I
think that makes some sense to instruct them where to listen,
and they could listen to it as a group, play it, stop it, play
it, stop it." The judge, however, expressed some hesitancy in
telling the jury where exactly in the recording they should
begin listening because, in addition to the instruction on
voluntary manslaughter, other instructions, such as the
instructions on murder in the first degree, also stated that the
20
Commonwealth has the burden to prove that there were no
mitigating circumstances. Defense counsel, in response,
proposed that the judge ask the jury to "listen to those
portions of the instructions . . . beginning at first degree and
through voluntary manslaughter. That way, we're not putting our
thumb anywhere to push them in one direction or the other."
Thereafter, the judge called the jury into the court room to
respond to their note.
In addressing the statement at issue, the judge instructed
the jury as follows:
"With the exception of whether or not the Commonwealth has
proven without reasonable doubt there were mitigating
circumstances. So I'm just reading what you wrote. And
what I respectfully suggest, and this is why I did it, is
that you take some time and listen to the instructions on
the audio tape, and don't tell me whether you have or not.
But our court monitor has given you an outline that refers
you back to the time within the CD so you can fast forward
it, and . . . you can quickly go to those sections that you
want to listen to, understanding that my instructions as a
whole are important, all of my instructions are equally
important as I told you that.
"So, I, again, don't want to presuppose what you're asking,
and I'm not being critical. Please forgive me. I just am
not able to answer the question, because it needs further
clarification."
The judge instructed the jury to continue their deliberations,
emphasizing once again that the Commonwealth bears the burden to
prove all the elements of the charged offenses. The judge
concluded: "At this juncture, I'd ask you to go back, listen to
the recording if that's helpful. If you have further questions,
21
I'm happy to receive them from you. If you want to ask
questions right away before listening, you can do that as well."
The jury returned to the deliberation room and asked no
additional questions prior to returning verdicts of guilty the
following day.
On appeal, the defendant argues that the judge abused his
discretion in responding to the jury's statement. Specifically,
he argues that, faced with the jury's misstatement that the
Commonwealth must prove, rather than disprove, mitigating
circumstances, the judge was required to forcefully reinstruct
the jury on voluntary manslaughter and alert them explicitly of
the Commonwealth's burden of proof.
"The proper response to a jury question must remain within
the discretion of the trial judge, who has observed the evidence
and the jury firsthand and can tailor supplemental instructions
accordingly." Commonwealth v. Monteagudo, 427 Mass. 484, 488
(1998), quoting Commonwealth v. Waite, 422 Mass. 792, 807 n.11
(1996). See Commonwealth v. Watkins, 425 Mass. 830, 840 (1997)
("The necessity, scope, and character of a judge's supplemental
jury instructions are within his or her discretion"). "[B]efore
a judge responds to a jury communication of legal significance
. . . , counsel should be given the opportunity to assist the
judge in framing an appropriate response and to place on record
any objection they might have to the course chosen by the
22
judge." Commonwealth v. Nelson, 468 Mass. 1, 16 (2014), quoting
Commonwealth v. Floyd P., 415 Mass. 826, 833 (1993). Here,
defense counsel was given such an opportunity; he agreed with
the judge's course of action and lodged no objection to the
judge's response to the jury question. Thus, we review to
determine whether there was error and, if so, whether the error
created a substantial likelihood of a miscarriage of justice.
See Commonwealth v. Scott, 428 Mass. 362, 366 (1998), S.C., 437
Mass. 1008 (2002).
We conclude that there was no abuse of discretion. "The
judge's discretion to formulate a response is broad,"
Monteagudo, 427 Mass. at 488, and "[w]e evaluate the adequacy of
a supplemental instruction in the context of the entire charge,"
Commonwealth v. West, 487 Mass. 794, 804 (2021). It is
undisputed that the jury instructions given at the close of
evidence, which were memorialized verbatim in the audio
recording, accurately and thoroughly conveyed that the
Commonwealth bore the burden to prove that there were no
mitigating circumstances. In fact, this precise instruction was
repeated no less than seven times during the main jury charge.
See Watkins, 425 Mass. at 840 ("We presume that a jury follow
all instructions given to [them] . . .").
Based on the jury's statement that they were "in agreement
with charge" except as to "whether or not Commonwealth has
23
proven without reasonable doubt there were mitigating
circumstances," the judge could not discern confidently which
offense their statement concerned; the given instructions on
murder in the first degree, murder in the second degree, and
voluntary manslaughter each contained statements addressing the
Commonwealth's burden to disprove mitigating circumstances. The
judge therefore concluded that the jury's statement needed
clarification.
Rather than provide a specific instruction on voluntary
manslaughter, as the defendant now argues he should have, the
judge agreed with defense counsel's suggestion to not "push [the
jury] in one direction" and instead pointed the jury to the
audio recording as a whole, guided by the outline. The outline
contained headings for each offense and the accompanying
instructions, including headings entitled "No Mitigating
Circumstances" under each theory of murder in the first degree,
and "What is a Mitigating Circumstance?" under voluntary
manslaughter. This allowed the jury to direct themselves to the
portion of the instructions giving them pause. Significantly,
the judge encouraged the jury to clarify their statement or ask
additional questions, if they had them, after listening. It was
within the judge's considerable discretion to respond in this
24
manner.10 See Scott, 428 Mass. at 367 (no abuse of discretion
where "judge was unclear what the jurors were asking and, rather
than confuse them, the judge sought further clarification of the
question which concerned the jurors").
The defendant argues that, because the judge used the word
"suggest" when he initially told the jury to listen to the
recording, we cannot know whether the jury actually listened to
the recording of the judge's instructions, and a substantial
likelihood of miscarriage of justice therefore resulted. We
disagree. Considering all of the judge's statements to the jury
together and in context, rather than in isolation, his response
clearly reflected an instruction for the jury to clarify their
statement by listening to the audio recording. See Commonwealth
v. Stokes, 440 Mass. 741, 750 (2004), S.C., 460 Mass. 311 (2011)
("adequacy of instructions is determined by their over-all
impact on the jury"). The absence of any follow-up questions or
clarification from the jury "suggests that their confusion was
dispelled." Monteagudo, 427 Mass. at 489. "The jurors may
withdraw a question or return a verdict before a question is
10Contrary to the defendant's argument, it was sufficient
for the judge to use an audio recording of the instructions,
rather than a written version, especially where, as here, the
jury were provided the outline. See Commonwealth v. Baseler,
419 Mass. 500, 505 (1995) ("a tape recording is not only a
reasonable procedure by which to make the judge's instructions
available to the jury, but also is comparable to written
instructions").
25
answered." Scott, 428 Mass. at 367. The jury were "in the best
position to determine whether the additional instruction was
necessary," and by returning their verdicts without clarifying
their statement, they demonstrated that they did not need
further response from the judge. Id.The jury's misstatement in this case -- that the
Commonwealth is required to prove mitigating circumstances
beyond a reasonable doubt -- is not unfamiliar or surprising.
The concept that the Commonwealth bears the burden to disprove
mitigating circumstances is difficult to frame, and we have
decided a number of cases where judges have stated the concept
incorrectly during jury instructions.11 However, even where a
judge has misstated the Commonwealth's burden in the very same
manner as the jury did here, we have not found a substantial
likelihood of a miscarriage of justice where "the center of
gravity" of the judge's instructions was not "strongly on the
11This error -- where a judge instructs the jury that the
Commonwealth must prove mitigating circumstances beyond a
reasonable doubt -- has been referred to as the Acevedo error.
See Acevedo, 427 Mass. at 716 (judge instructed jury that
Commonwealth "must prove three elements beyond a reasonable
doubt," including that "the defendant injured [the victim] as a
result of sudden combat or in the heat of passion or using
excessive force in self defense"). See, e.g., Commonwealth v.
Brum, 441 Mass. 199, 205 (2004); Commonwealth v. Lynch, 439
Mass. 532, 543, cert. denied, 540 U.S. 1059 (2003); Commonwealth
v. Sirois, 437 Mass. 845, 857 (2002); Commonwealth v. Lapage,
435 Mass. 480, 484-486 (2001); Commonwealth v. Simpson, 434
Mass. 570, 589 (2001).
26
side of the misstatement" (citation omitted). Commonwealth v.
Fickling, 434 Mass. 9, 20 (2001). See, e.g., Commonwealth v.
Lynch, 439 Mass. 532, 543-544, cert. denied, 540 U.S. 1059(2003) (judge provided two correct instructions and two
incorrect instructions, but "repeatedly emphasized that the
Commonwealth bears the burden of proof beyond a reasonable doubt
on all the elements of the crime charged"); Fickling, supra at
19-20 (two correct instructions sandwiched between two incorrect
instructions, but it was clear that correct instructions carried
more weight). Contrast Acevedo, 427 Mass. at 716-717 (new trial
required where judge incorrectly instructed on burden of proof
as to provocation in main charge twice, with one correct
instruction, and repeated incorrect instruction in supplemental
charge).
In these circumstances, where the jury were correctly,
consistently, and repeatedly instructed in the main charge that
the Commonwealth bears the burden to prove that there were no
mitigating circumstances, were provided an audio recording of
those instructions, and were encouraged to clarify their
statement or ask additional questions after listening to the
recording, but did not do so, it would be entirely speculative,
and remote in the extreme, to conclude that the jury applied an
incorrect burden of proof in reaching their verdict. See
Watkins, 425 Mass. at 841. See also Commonwealth v. Torres, 420
27
Mass. 479, 490-491 (1995) ("Reviewing the whole charge,
including the judge's emphatic and repeated statements that only
the Commonwealth -- and never the defendant -- bore any burden,
we believe that the jury could not have concluded that the
judge's misstatement created an unconstitutional presumption
relieving the State of its burden of persuasion beyond a
reasonable doubt of every element of deliberately premeditated
murder in the first degree"). We discern no substantial
likelihood of a miscarriage of justice.12
5. Constitutionality of life sentence without possibility
of parole. The defendant argues that, considering his age of
eighteen at the time of crimes and the surrounding
circumstances, the reasoning in Diatchenko I, 466 Mass. at 667-
671, and Miller, 567 U.S. at 479-480, commands a conclusion that
his sentence of life without the possibility of parole is
unconstitutional under art. 26 and the Eighth Amendment. Since
we concluded in Diatchenko I that a life sentence without the
possibility of parole for individuals under the age of eighteen
violates art. 26, "we repeatedly have declined to extend its
holding to individuals over eighteen years of age."
Commonwealth v. Watt, 484 Mass. 742, 755 (2020).
12Therefore, the defendant's claim of ineffective
assistance based on counsel's failure to object to the judge's
response is unavailing. See Kolenovic, 478 Mass. at 192.
28
Recently, however, in Watt, we concluded that "it likely is
time for us to revisit the boundary between defendants who are
seventeen years old and thus shielded from the most severe
sentence of life without the possibility of parole, and those
who are eighteen years old and therefore exposed to it." Id. at
755-756. In order to do so, we determined that it was necessary
for there to be "an updated record reflecting the latest
advances in scientific research on adolescent brain development
and its impact on behavior." Id. at 756. We therefore remanded
that case to the Superior Court for a development of the record
to "allow us to come to an informed decision as to the
constitutionality of sentencing young adults to life without the
possibility of parole." Id.
The defendant acknowledges that any decision we make based
on a developed record regarding the constitutionality of a life
sentence without the possibility for parole for individuals over
eighteen years of age will be applicable to him. See
Commonwealth v. Penn, 472 Mass. 610, 628 (2015), cert. denied,
578 U.S. 925 (2016) (rules announced in Miller and Diatchenko I
given retroactive effect). Nonetheless, he contends that we
should make this constitutional determination on the record
before us. Because the record in this case does not contain the
necessary information for us to "come to an informed decision"
29
on this important constitutional question, we decline to do so
here. See Watt, 484 Mass. at 756.
6. Review pursuant to G. L. c. 278, § 33E. The defendant
asks us to exercise our authority pursuant to G. L. c. 278,
§ 33E, to reduce his conviction of murder in the first degree to
murder in the second degree or voluntary manslaughter based on
the lack of evidence of extreme atrocity or cruelty.
The defendant was tried before we prospectively changed the
requirements of finding extreme atrocity or cruelty in
Commonwealth v. Castillo, 485 Mass. 852, 865-867 (2020). As a
result, the jury were instructed that a finding of extreme
atrocity or cruelty must be based on at least one of the so-
called Cunneen factors. See Commonwealth v. Cunneen, 389 Mass.
216, 227 (1983). "These include '[1] indifference to or taking
pleasure in the victim's suffering, [2] consciousness and degree
of suffering of the victim, [3] extent of physical injuries, [4]
number of blows, [5] manner and force with which delivered, [6]
instrument employed, and [7] disproportion between the means
needed to cause death and those employed.'" Commonwealth v.
Gonsalves, 488 Mass. 827, 834 (2022), quoting Cunneen, supra.Based on the evidence that the defendant stabbed the victim
-- who was unarmed -- nine times with a knife, causing his
intestines to protrude from his body while he lay on the ground
conscious and waiting for medical aid, a finding of extreme
30
atrocity or cruelty was supported by several of the Cunneen
factors. See Gonsalves, 488 Mass. at 834-835 (finding of
extreme atrocity or cruelty supported where defendant stabbed
victim five times and in vital areas, and where, after stabbing,
victim was conscious and attempted to speak to friends);
Commonwealth v. Rodriquez, 461 Mass. 100, 104-105 (2011)
(finding of extreme atrocity or cruelty supported where
defendant stabbed unarmed victim seven times with "significant
force" in "areas in the body that were likely to cause serious
injury and pain"); Commonwealth v. Libby, 405 Mass. 231, 237
(1989), S.C., 411 Mass. 177 (1991) (evidence sufficient to prove
extreme atrocity or cruelty where defendant stabbed victim nine
times).
The defendant compares this case to Castillo, 485 Mass. at
867-868, where we reduced a verdict of murder in the first
degree based on the theory of extreme atrocity or cruelty to
murder in the second degree, pursuant to our authority under
G. L. c. 278, § 33E. Castillo is inapposite. There, the
defendant fired a single gunshot in the victim's back, and the
only evidence that supported a finding of extreme atrocity or
cruelty was the victim's consciousness of suffering. Id. at
860, 867-868. The same is not true here. See Libby, 405 Mass.
at 236 ("Had there been but one stab wound, we might well have
regarded this case as one of a class not typically involving
31
murder in the first degree"). Our "authority to reduce a
conviction of murder in the first degree in the interest of
justice 'should be used sparingly and with restraint.'"
Commonwealth v. Billingslea, 484 Mass. 606, 619-620 (2020),
quoting Commonwealth v. Brown, 477 Mass. 805, 824 (2017), cert.
denied, 139 S. Ct. 54 (2018). We decline to exercise that
authority in these circumstances.13
Conclusion. We affirm the defendant's convictions and the
order denying the defendant's motion for a new trial.
So ordered.
13The defendant argues that the cumulative effect of the
errors requires a new trial. "Here, 'the cumulative [effect of
the] errors . . . [was] no more prejudicial than any individual
errors, which had minimal impact, if any.'" Commonwealth v.
Kapaia, 490 Mass. 787, 805 n.15 (2022), quoting Commonwealth v.
Duran, 435 Mass. 97, 107 (2001).