Commonwealth v. Moseley

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SJC-11805
COMMONWEALTH vs. WILLIAM MOSELEY.
Middlesex. March 8, 2019. - October 3, 2019.
Present: Gants, C.J., Lenk, Lowy, Budd, & Kafker, JJ.
Homicide. Evidence, Hearsay, State of mind. Practice,
Criminal, Capital case, Hearsay, State of mind, Request for
jury instructions, Assistance of counsel, Argument by
counsel.
Indictment found and returned in the Superior Court
Department on September 25, 2012.
The case was heard by Kathe M. Tuttman, J., and a motion
for a new trial, filed on December 29, 2016, was heard by her.
Matthew A. Kamholtz for the defendant.
Casey E. Silvia, Assistant District Attorney (Elizabeth A.
Dunigan, Assistant District Attorney, also present) for the
Commonwealth.
LENK, J. In the early morning hours of August 10, 2012,
the defendant strangled to death his former girlfriend, Cecilia
Yakubu, in the bedroom of their shared apartment in Malden. At
trial, the defendant acknowledged that he killed the victim when
2
he caused the tank top she was wearing to wrap around her neck.
He contended, however, that the strangulation occurred
unintentionally, during the course of a heated, physical
struggle. The Commonwealth, by contrast, proceeded on the
theory that the defendant had tightly and deliberately wrapped
the tank top around the victim's neck, twice, in an effort to
kill her following an argument. The only issue for the jury was
the defendant's degree of culpability. The jury ultimately
convicted the defendant of murder in the first degree on the
theory of deliberate premeditation.
In this consolidated appeal from the conviction and from
the denial of his motion for a new trial, the defendant contends
that the judge erred in allowing the admission of several
hearsay statements, and in declining to instruct the jury on the
elements of involuntary manslaughter. Additionally, the
defendant argues that his trial counsel rendered
constitutionally ineffective assistance by failing to elicit
testimony about the reasons why the defendant kept a knife under
his pillow, and by delivering an unfocused closing argument that
did not marshal the evidence in favor of a conviction of
voluntary manslaughter.
For the reasons set forth infra, we affirm the defendant's
conviction and the denial of his motion for a new trial. After
a thorough review of the record, we discern no reason to employ
3
our extraordinary authority under G. L. c. 278, § 33E, to grant
a new trial or to reduce the verdict.
1. Background. We recite the facts as the jury could have
found them, reserving certain details for later discussion.
The victim and the defendant lived together in a two-
bedroom apartment in Malden. They had been involved in a
romantic relationship for approximately five years, but the
relationship had begun to deteriorate. As a result, the
defendant removed his belongings from the bedroom that he and
the victim previously had shared and began sleeping in the
second bedroom. The victim and the defendant continued this
arrangement until, in August of 2012, they decided that the
defendant should move out.
On the morning of August 9, 2012, the defendant packed a
suitcase of his belongings and left the apartment.1 One of his
friends, Tuesday Reeves, collected the defendant from the train
station; from there, they went grocery shopping. Afterward, the
defendant and Reeves returned to Reeves's apartment and visited
for a short time.
The defendant told Reeves that he could not return to the
apartment that he had shared with the victim, and asked if he
1 The victim had lunch with her friend, Dorothy O'Neal,
later that day. The victim expressed her belief that the
defendant had moved out of their apartment permanently.
4
could stay with Reeves instead.2 Reeves said no, and asked the
defendant to leave her apartment because the man whom she was
dating would be coming over later that evening. The defendant
then left Reeves's apartment and went to sell perfume oils in
Cambridge, which he did occasionally to earn extra income.
Later in the evening, he telephoned Reeves and asked once more
if he could stay at her apartment; she again refused. The
defendant then took one of the last trains running from
Cambridge to Malden that evening, and returned to the victim's
apartment around 11:30 P.M.
When the defendant showed up at the apartment, the victim
was using the landline telephone to speak with several of her
friends. She expressed to them her frustration that the
defendant had returned, unannounced, after leading her to
believe that he had moved out.
The defendant also used the landline telephone over the
course of the night, primarily to speak with Reeves. The
defendant told Reeves that the victim was "going crazy" because
of his return to the apartment. He mentioned that Reeves might
2 In the preceding weeks, the defendant had told Reeves
about his living situation and his strained relationship with
the victim; he also asked Reeves if he could move into her
apartment. Reeves had explained that it would not be permitted
by the management of her public housing complex.
5
not see him for the next ten years, and that she should know
that he loved her. He then hung up.
Reeves attempted to call back, but the victim answered.
Reeves could hear the defendant in the background getting
"louder and louder" as he argued with the victim; he seemed
quite angry. The victim also was upset. She told Reeves that
she was "sick of his shit" and that if the defendant "puts his
hands on her" she would call the police. The victim also told
Reeves that the defendant had to go elsewhere, preferably to
Reeves's house. Reeves responded that he could not stay with
her, and suggested that, instead, the victim leave the
apartment. The victim did not want to leave. She ended the
call shortly thereafter.3
The defendant subsequently went into the victim's bedroom,
where the argument between them quickly escalated. The victim
hit the defendant in the face with a telephone, and the
defendant ripped the cord and jack out of the wall. A struggle
quickly ensued. During the course of that struggle, the
defendant twice wound the victim's tank top around her neck.
After "a few minutes," the victim's body went limp, and she
became unresponsive.
3 The defendant called Reeves back a few times thereafter.
During one conversation, the defendant seemed calmer. At some
point, Reeves stopped answering his calls.
6
The defendant then went into his bedroom and, using a
different landline telephone, made several calls to his mother
and sister, both of whom lived in another State; those calls
spanned the period of time from approximately 12:40 A.M. to
5:10 A.M. At 5:15 A.M., approximately four to five hours after
the victim had died, the defendant telephoned 911 and reported
that he had "just killed [his] wife. . . . She's dead." He
told the 911 operator that he would be waiting outside the
apartment for police to arrive.
When the first police officer responded, the defendant told
him that he had "just killed [his] wife," and that he had
"strangled her." Police entered the apartment to find the
victim lying face down on the floor of the bedroom in a small
pool of blood; a black tank top was wrapped tightly around her
neck, and a telephone cord was draped across her shoulders. One
of the officers tried to find a pulse on the victim's neck, but
the tank top was wrapped too tightly and the officer could not
get his fingers underneath it. He instead checked for a pulse
on the victim's wrist and found none.4
4 Because rigor mortis had begun to set in, the medical
examiner believed that the victim had been dead at least one
hour; by the defendant's own statement at trial, she had been
dead approximately four to five hours.
7
An autopsy subsequently revealed that the victim had
several abrasions on the side of her neck that were consistent
with efforts to remove the tank top before she lost
consciousness. The victim also had several bruises and
scratches on her body that were consistent with having been
struck.5
At trial, the only contested issue was whether the ligature
strangulation had occurred deliberately or inadvertently. The
Commonwealth argued that the defendant tightly wrapped the
victim's tank top around her neck, twice, in order to kill her.
The defendant testified that his hand inadvertently became
caught up in the victim's tank top during a struggle; he then
pulled it back in order "[t]o restrain her," but the victim
became unresponsive and limp shortly thereafter.6
5 The defense expert agreed that the bruising was consistent
with a fist striking the victim, but testified also that it
could be consistent with a collapse injury due to, for example,
a fall to the floor after losing consciousness.
6 The medical examiner demonstrated on a mannequin the
manner in which the ligature had been wound around the victim's
neck, and how the strangulation likely occurred. The mannequin
was admitted in evidence, and the jury took it into the
deliberation room.
8
After a six-day trial, the jury convicted the defendant of
murder in the first degree on a theory of deliberate
premeditation.7
2. Discussion. In this consolidated appeal from his
conviction and from the denial of his motion for a new trial,
the defendant argues that the judge erred in allowing the
admission of several hearsay statements by the victim to others
on the night that she was killed. He maintains also that the
judge erred in not instructing the jury on the elements of
involuntary manslaughter. The defendant argues that his trial
counsel was ineffective because counsel failed to elicit
testimony from the defendant regarding the reasons why he kept a
knife under his pillow, and delivered a "rambling" and
unpersuasive closing argument that did not convince the jury to
convict the defendant of voluntary manslaughter, rather than
murder. Should we conclude that none of these asserted errors
warrants a new trial, the defendant also requests that we grant
relief pursuant to G. L. c. 278, § 33E, by reducing the verdict
to murder in the second degree.
a. Victim's statements. The judge allowed the
Commonwealth to introduce several statements made by the victim
to her friends and to Reeves on the day and night that she was
7 The jury did not convict the defendant on the theory of
extreme atrocity or cruelty.
9
killed. Although the judge offered to provide a limiting
instruction, the defendant expressly declined one.8
The defendant argues that these statements should not have
been admitted because they constituted hearsay and were unduly
prejudicial insofar as they might have demonstrated the victim's
fear of the defendant. The Commonwealth maintains that the
statements were not hearsay, as they were admitted not for their
truth but for the purpose of demonstrating the victim's state of
mind, which was made known to the defendant and shed light on
his motive on the night of the killing. "Generally,
determinations as to the admissibility of evidence lie 'within
the sound discretion of the trial judge.'" Commonwealth v.
Bins, 465 Mass. 348, 364 (2013), quoting Commonwealth v. Jones,
464 Mass. 16, 19-20 (2012).
8 Defense counsel objected to the introduction of each
respective statement, but he did not request a limiting
instruction. Counsel told the judge that his decision was
tactical, as he believed that a limiting instruction would serve
only to place a judicial imprimatur on the victim's statements
and the inferences to be drawn therefrom. We discern no
ineffective assistance resulting in a substantial likelihood of
a miscarriage of justice from this decision, particularly in
light of the overwhelming evidence of the defendant's guilt.
See Commonwealth v. Franklin, 465 Mass. 895, 914 (2013) (failure
to request instruction not ineffective assistance resulting in
substantial likelihood of miscarriage of justice); Commonwealth
v. Griffith, 404 Mass. 256, 263 (1989) (counsel's tactic not
ineffective "[c]onsidering the overwhelming evidence against the
defendant").
10
The first of the challenged conversations was with Sharon
Phillips. Phillips testified, in relevant part, that the victim
said, "He's back," when the defendant returned to the apartment
that evening. The second was with Stanley Blidgen; he testified
to his conversation with the victim earlier that day, in which
the victim expressed her understanding that the defendant had
left the house with a suitcase and had moved out. The third
exchange took place with a long-time friend of the victim,
Dorothy O'Neal. O'Neal testified that the victim told her that
the defendant "was gone" and "that he took a little red bag."
O'Neal inquired if the victim had retrieved her key from the
defendant, to which she responded, "No, he's gone." The fourth
challenged conversation was with Tuesday Reeves that evening.
She testified:
Q.: "What was the conversation?"
A.: "She was upset. [The defendant] was making a
sandwich. . . . She said that he was in there taking
food when he didn't put any food in her house, and
that he needed to come to my house."
Q.: "Did you have a response to that?"
A.: "Yes, I told her that I have a guy and he cannot
come here."
Q.: "What else did she say to you?"
A.: "She said to me that if he puts his hands on her
that she would call the police."
Q.: "Did she say anything about how she felt about
him?"
11
A.: "Yes, she said that she was sick of his shit."
. . .
Q.: "And we're not going to get into what you said,
but you gave her some advice?"
A.: "Yes, I did."
. . .
A.: "I told her to leave. I told her to get out of
the house, to leave."
Q.: "And she said no."
A.: "She said, no, it was her house."
Q.: "And when you're having this conversation with
her, can you hear anybody in the background?"
A.: "Yes, I can. I could hear [the defendant]."
In certain circumstances, statements made by a victim to a
third party may be admissible as evidence "of a murder victim's
state of mind as proof of the defendant's motive to kill the
victim." See Commonwealth v. Castano, 478 Mass. 75, 85 (2017),
citing Commonwealth v. Qualls, 425 Mass. 163, 167 (1997), S.C.,
440 Mass. 576 (2003). See also Mass. G. Evid. §§ 801(c), 802
(2019). A victim's statements, however, may be admissible only
if "there also is evidence that the defendant was aware of that
state of mind at the time of the crime and would be likely to
respond to it." Castano, supra, quoting Qualls, supra. See
Commonwealth v. Magraw, 426 Mass. 589, 593-594 (1998). "There
need not be direct evidence that the defendant learned of the
12
victim's state of mind, so long as the jury reasonably could
have inferred that he or she did learn of it." Castano, supra.
Here, the statements made by the victim to others in the
hours before her death were probative of her state of mind on
the night that she was killed, that is, the victim's ongoing
dissatisfaction with the relationship, her frustration with the
defendant's presence in the apartment after believing that he
had moved out, and the defendant's response to her annoyance
when confronted. Compare Castano, 478 Mass. at 85-86 (desire to
terminate relationship and have defendant move out of shared
apartment sufficient for jury to infer motive); Commonwealth v.
Tassinari, 466 Mass. 340, 347 (2013) (victim's statements to
others regarding desire that defendant move out demonstrated
ongoing hostility and discord within relationship); Commonwealth
v. Borodine, 371 Mass. 1, 7-9 (1976), cert. denied, 429 U.S.
1049 (1977) (victim's statements to third parties about
deterioration of relationship relevant in assessing defendant's
motive to kill victim).9
9 Although the Commonwealth is not required to prove a
defendant's motive for committing a particular crime, if there
is evidence of motive, that evidence may be admissible. See
Commonwealth v. Borodine, 371 Mass. 1, 8 (1976), cert. denied,
429 U.S. 1049 (1977). Evidence of a victim's fear of a
defendant, however, "is not admissible at all to prove motive."
See Commonwealth v. Magraw, 426 Mass. 589, 594 (1998). Here,
the victim's statements did not indicate her fear of the
defendant but, rather, her irritation, anger, and annoyance at
his return, and her dissatisfaction with the state of their
13
Moreover, the jury could have inferred that the defendant
was aware of the victim's state of mind at the time of the
crime, as expressed to her friends, to Reeves, and to the
defendant, which may have shed light on the defendant's intent
or motive to harm the victim. See Castano, 478 Mass. at 85-86.
Indeed, Reeves testified that she heard the defendant in the
background when the victim was expressing her irritation at the
defendant's presence in the apartment and his lack of financial
contribution to household expenses, her thoughts of calling the
police if he "put[] his hands on" her, and her request that he
leave. Further, by the defendant's own testimony at trial, the
victim had in fact confronted him; their argument then led to a
physical struggle, which ended with the defendant strangling the
victim. Compare id. at 85 (adequate evidence for jury to infer
that defendant knew of victim's state of mind where, in
defendant's own description of killing, "he and the victim were
arguing in the moments leading up to it").10
The relatively innocuous statements also cannot be said to
have been unduly prejudicial to the defendant, as they reference
relationship and living situation. Cf. Commonwealth v. Qualls,
425 Mass. 163, 169 (1997) (evidence of victim's fear does not
shed light on defendant's motive, even if defendant knew of that
fear).
10 To the extent that the statements also may have included
remarks made by a third party to the victim, those statements
were not introduced for their truth. See Commonwealth v. Bins,
465 Mass. 348, 365 (2013).
14
neither the victim's fear of the defendant nor any misconduct on
the part of the defendant. Cf. Qualls, 425 Mass. at 169. Thus,
in light of the relevance of the victim's statements, the
defendant's awareness of her state of mind, and the broad
latitude afforded to a judge's decision to allow the admission
of such evidence if it is not unduly prejudicial, see L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014), we discern no
error in allowing the statements to be introduced at trial. See
Bins, 465 Mass. at 365-366 (no error in allowing admission of
victim's statements where it was within judge's sound discretion
to do so).
b. Instruction on involuntary manslaughter. At the close
of all the evidence, the defendant requested instructions on
involuntary and voluntary manslaughter. The judge declined to
instruct on involuntary manslaughter, but agreed to provide an
instruction on voluntary manslaughter, in light of evidence that
could have supported a theory of heat of passion induced by
sudden combat. See Commonwealth v. Espada, 450 Mass. 687, 694
(2008). The judge also instructed on murder in the second
degree and murder in the first degree. The defendant maintains
in this appeal that the judge erred in declining to instruct the
jury on involuntary manslaughter.
"Involuntary manslaughter is an unintentional killing
resulting from 'wanton and reckless conduct . . . [or] . . . a
15
battery not amounting to a felony which the defendant knew or
should have known endangered human life." Commonwealth v.
Tague, 434 Mass. 510, 517-518 (2001), cert. denied, 534 U.S.
1146 (2002), quoting Commonwealth v. Pierce, 419 Mass. 28, 33
(1994). "An instruction on involuntary manslaughter is required
where any view of the evidence would permit a finding of
manslaughter and not murder." Pierce, supra. "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." Id.
In determining whether such an instruction was warranted, "we
consider the evidence in a light most favorable to the
defendant." Tague, supra at 518.
The evidence in this case, taken in the light most
favorable to the defendant, did not entitle him to an
instruction on involuntary manslaughter. While the defendant's
hands may have inadvertently gotten caught up in the victim's
tank top during their struggle, by the defendant's own testimony
at trial, he then "pulled" the tank top in order "[t]o restrain
her," while she was clawing at her neck in an effort to release
the ligature. The defendant continued to do so, by his own
estimate, for "a few minutes," until the victim had stopped
struggling. The obvious risk of physical harm associated with
the continued pulling of a ligature around the victim's neck, so
16
tightly that she could not remove it despite her efforts,
created a "plain and strong likelihood that death would follow."
See Commonwealth v. Degro, 432 Mass. 319, 331 (2000). See also
Commonwealth v. DeMarco, 444 Mass. 678, 684 (2005) (involuntary
manslaughter instruction not warranted where defendant choked,
strangled, and slammed victim on ground); Commonwealth v.
Fitzmeyer, 414 Mass. 540, 547–548 (1993) (involuntary
manslaughter instruction not warranted where defendant choked
and beat victim); Commonwealth v. Garabedian, 399 Mass. 304,
315–316 (1987) (involuntary manslaughter instruction not
warranted where defendant strangled victim with drawstring from
his jacket and threw rocks at her).
Moreover, the defendant strangled the victim with
sufficient force so as to cut off the flow of oxygen to her
brain, causing hemorrhaging in her face and eyes. When she
became unresponsive and limp, he left the victim alone -- either
unconscious or dead -- with the ligature still wrapped tightly
around her neck. When he realized that the victim was dead, the
defendant did not call for emergency assistance until
approximately four or five hours had passed. In analogous
circumstances, we have concluded that the evidence did not
warrant an instruction on involuntary manslaughter. Cf.
Commonwealth v. Felix, 476 Mass. 750, 760 (2017) (involuntary
manslaughter instruction not warranted where defendant placed
17
ligature around victim's neck and pulled with force for three to
five minutes); Commonwealth v. Linton, 456 Mass. 534, 552–553
(2010) (involuntary manslaughter instruction not warranted where
defendant used manual force in strangling victim for at least
ninety seconds, did not call for emergency aid, and left victim
unconscious or dead behind locked door).
Because an involuntary manslaughter instruction was not
reasonably supported by the evidence in light of the "plain and
strong likelihood that death [would] follow" from the
defendant's having pulled the tank top around her neck for
several minutes, see Pierce, 419 Mass. at 33, we discern no
error in the judge's decision not to provide one. See
Commonwealth v. Nardone, 406 Mass. 123, 132 (1989) ("judge
should not instruct a jury on a lesser-included offense not
suggested by a reasonable view of the evidence").
c. Ineffective assistance of counsel. The defendant also
moved for a new trial on the grounds that his trial counsel
rendered constitutionally ineffective assistance by introducing,
and then not explaining, the evidence that the defendant kept a
knife under his pillow, and by delivering an incoherent closing
argument. The motion judge, who was also the trial judge,
denied the motion, from which the defendant now appeals. We
review that decision for "a significant error of law or other
abuse of discretion," and afford "special deference to the
18
rulings of a motion judge who was also the trial judge"
(citation omitted). See Commonwealth v. Alcide, 472 Mass. 150,
158 (2015). "When we review such a decision in the context of
an appeal from a conviction of murder in the first degree, the
defendant nevertheless 'has the benefit of our independent
review, pursuant to G. L. c. 278, § 33E . . . of the entire
record.'" Id., quoting Commonwealth v. Carter, 423 Mass. 506,
513 (1996).
In evaluating a claim of ineffective assistance of counsel
in a case of murder in the first degree, we review to determine
"whether there exists a substantial likelihood of a miscarriage
of justice, as required under G. L. c. 278, § 33E, which is more
favorable to a defendant than the constitutional standard for
determining ineffectiveness of counsel." See Commonwealth v.
Walker, 460 Mass. 590, 598 (2011); Commonwealth v. Wright, 411
Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014). In so doing,
we need not consider whether counsel's action "fell measurably
below the conduct expected from an ordinary fallible lawyer, but
determine instead whether there was error and, if so, whether
the error was likely to have influenced the jury's conclusion"
(quotations and citation omitted). See Commonwealth v.
Franklin, 465 Mass. 895, 909 (2013).
i. Failure to elicit testimony. Prior to trial, the
Commonwealth filed a motion in limine seeking to exclude
19
evidence that the defendant had kept a knife under his pillow.11
The defendant sought to elicit this evidence because he believed
it would indicate that the defendant had a fear of the victim.
The judge denied the Commonwealth's motion to exclude this
evidence, but stated that the defendant could not argue that he
feared the victim unless additional evidence were to be
introduced to support such an inference. The defendant
subsequently testified, but his counsel did not ask him any
questions about the knife under his pillow.12
In the defendant's motion for a new trial, the judge
determined that an inadvertent failure by counsel to elicit
testimony about the knife likely constituted error. She noted,
however, that "ineffective assistance is not established simply
by showing that trial counsel failed to offer certain evidence."
See Commonwealth v. Medina, 20 Mass. App. Ct. 258, 261 (1985).
Indeed, courts must determine whether any such error was "likely
to have influenced the jury's conclusion" (citation omitted).
Franklin, 465 Mass. at 909.
Having conducted an independent review of the entire trial
record, we agree with the motion judge that any testimony about
11 The victim's landlord had discovered the knife when he
was cleaning out the apartment after the victim's death, and
gave it to investigating officers.
12 Trial counsel asserted in an affidavit in support of the
defendant's motion for a new trial that the omission was
inadvertent.
20
the defendant's possible fear of the victim was unlikely to have
influenced the jury's conclusion. This is particularly true in
light of what she deemed to be powerful evidence of deliberate
premeditation arising from the medical examiner's demonstration
of the ligature strangulation on a mannequin and the defendant's
admissions at trial. Moreover, any testimony about the knife
appears immaterial to the defense theory that the defendant
either had inadvertently wrapped the ligature around the
victim's neck or had strangled the victim in a heat of passion
during mutual combat. Eliciting any further testimony about the
reasons why the defendant kept a knife under his pillow thus
would be unlikely to have bolstered the defense; by contrast, it
could have served to undermine the defense that the defendant
did not plan or intend to kill the victim. See Commonwealth v.
Montez, 450 Mass. 736, 754-755 (2008) (no ineffective assistance
where additional testimony would have undermined defense).13
Any passing reference to the existence of a knife at trial
also was brief and insubstantial. Neither the prosecutor nor
defense counsel made reference to the knife in their arguments,
and mention of the knife formed only a very small portion of the
13The jury also were instructed that they could not engage
in any guesswork, conjecture, or speculation about the evidence.
We presume, as we must, that the jury heeded those instructions
and did not impermissibly speculate about the knife. See
Commonwealth v. Rivera, 482 Mass. 259, 271 (2019).
21
testimony; it thus likely had but very slight effect on the
jury. In light of the overwhelming evidence of the defendant's
guilt, we are confident that even if counsel had fully developed
this evidence at trial, it would not have influenced the jury's
conclusion that the defendant intended to strangle the victim.
As such, we discern no substantial likelihood of a miscarriage
of justice. See Commonwealth v. Facella, 478 Mass. 393, 411
(2017) (failure to elicit evidence at trial not ineffective
assistance resulting in miscarriage of justice "[g]iven the
overwhelming evidence of the defendant's guilt"); Commonwealth
v. Griffith, 404 Mass. 256, 263 (1989) (counsel's tactics not
ineffective assistance "[c]onsidering the overwhelming evidence
against the defendant"). We discern no error in the judge's
denial of the motion for a new trial on this basis.
ii. Closing argument. The defendant maintains also that
his counsel rendered ineffective assistance by delivering an
unfocused closing argument that failed to marshal the evidence
in favor of a conviction of voluntary manslaughter.
While counsel's argument did include several irrelevant
anecdotes and references to popular culture,14 any such remarks
14For example, counsel made references to his own
experience serving on a jury, as well as the advice provided by
other judges whom he admired on the role of the jury. Counsel
also included anecdotes about his children, astronauts, and
celebrities. The judge characterized the closing argument as
22
must be "considered in the context of the entire argument, and
in light of the judge's instructions to the jury and the
evidence at trial." See Commonwealth v. Nieves, 429 Mass. 763,
772 (1999). Indeed, the "guaranty of the right to counsel is
not an assurance to defendants of brilliant representation or
one free of mistakes." Commonwealth v. Kolenovic, 478 Mass.
189, 196 (2017), quoting Commonwealth v. LeBlanc, 364 Mass. 1,
13-14 (1973).
Considering the closing argument as a whole, this is not a
case in which counsel's argument abandoned the theory of the
case or failed effectively to argue that theory, leaving the
client "denuded of a defense." Commonwealth v. Street, 388
Mass. 281, 287 (1983). Nor it is a case in which counsel's
statements were "tantamount to an admission of his client's
guilt." Commonwealth v. Triplett, 398 Mass. 561, 569 (1986).
Rather, counsel here touched upon all of the relevant evidence
that could have supported a verdict of voluntary manslaughter as
opposed to murder. Specifically, counsel noted,
"[T]here will be an instruction that you can consider
whether or not the defendant is guilty of the crime of
voluntary manslaughter. That this was sudden combat
and that the death resulted from his actions during --
after this sort of hot blood provocation, things of
that particular nature. [The victim] hits him with
the phone, they struggle. [The defendant] says
they're both throwing punches, landing punches,
displaying counsel's "folksy, salt-of-the-earth" style, in which
he was "trying to connect on a personal level with the jurors."
23
they're on the floor. He gets up. He says he reaches
around probably grabs her shirt. But to do this, to
really know that this is what's going to result is
death I would suggest would take some specialized
knowledge that he doesn't have."
Counsel concluded by saying it was "not even clear . . . that
[the defendant] had the intent to kill out of this provocation,"
and urged the jury that "when you apply all the law[,] the duty
to return the verdict that best fits the facts of this
case . . . [is] voluntary manslaughter."
The defendant also critiques counsel's performance by
pointing to an alternative use of the facts that might have
better persuaded the jury. "A list of subjective critiques of
defense counsel's [performance], absent a showing that errors
likely affected the jury's conclusions," however, "is
insufficient to support an ineffective assistance claim." See
Commonwealth v. Degro, 432 Mass. 319, 333 (2000), quoting
Commonwealth v. Scott, 428 Mass. 362, 369 (1998). Indeed, "[i]t
is far too easy to examine a transcript and point to ways to 'do
it better.'" Degro, supra. Several statements in counsel's
closing, although perhaps interposed with personal stories,
focused on the theory of the defense: that the defendant had
not acted with premeditation, but had strangled the victim in
24
the heat of passion. "This was a reasonable choice, in the face
of overwhelming evidence of guilt." See id.15
We thus discern no substantial likelihood of a miscarriage
of justice on the basis of counsel's closing argument, and no
abuse of discretion in the denial of the defendant's motion for
a new trial.
d. Relief pursuant to G. L. c. 278, § 33E. The defendant
also requests that this court exercise its authority to reduce
the verdict to murder in the second degree, particularly in
light of the unplanned nature of the attack.16 We decline,
however, to disturb the jury's verdict that the defendant
15 Counsel also had to make his closing argument in light of
the defendant's testimony that he had pulled the tank top around
the victim's neck in order to restrain her and the defendant's
cryptic statement to Reeves that she should not expect to see
him for the next "ten years." These statements, indicating a
possible plan to harm grievously the victim, were difficult to
overcome. So, too, were the defendant's statements to a police
officer that he had strangled the victim, and his testimony at
trial that the strangulation lasted a "few minutes."
Nonetheless, counsel presented the defense theory of the case
with reference to the critical facts and testimony in support
thereof. Cf. Commonwealth v. Marrero, 459 Mass. 235, 246 (2011)
(affirming conviction where "several, and perhaps even all, of
the statements" made in closing were improvident).
16 More specifically, the defendant requests a reduction in
the verdict because he has a limited education, see Commonwealth
v. McDermott, 393 Mass. 451, 460 (1984); the attack was
unplanned and senseless, see Commonwealth v. Pagan, 471 Mass.
537, 543, cert. denied, 136 S. Ct. 548 (2015); he did not bring
a weapon to the scene, see Commonwealth v. King, 374 Mass. 501,
507 (1978); and there was no history of animosity or
confrontation between him and the victim, see Commonwealth v.
Ransom, 358 Mass. 580, 583 (1971).
25
strangled the victim to death with deliberate premeditation,
which was supported by ample evidence. Compare Commonwealth v.
Mejia, 461 Mass. 384, 393 (2012) ("evidence of death by manual
strangulation sufficient to establish malice and deliberate
premeditation"); Commonwealth v. Serino, 436 Mass. 408, 411
(2002) (evidence of premeditation inherent in method of death
through sustained pressure to victim's neck). Pursuant to our
duty under G. L. c. 211, § 3, we have thoroughly reviewed the
entire trial record and discern no other reason to grant a new
trial or to reduce the verdict.
3. Conclusion. For the foregoing reasons, we affirm the
judgment of conviction. The order denying the defendant's
motion for a new trial is also affirmed.
So ordered.