Commonwealth v. Copeland

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SJC-10992
COMMONWEALTH vs. DAVID COPELAND.
Suffolk. November 9, 2018. - January 18, 2019.
Present: Gants, C.J., Lowy, Budd, & Cypher, JJ.
Homicide. Robbery. Felony-Murder Rule. Practice, Criminal,
Instructions to jury, Argument by prosecutor, Assistance of
counsel, Capital case. Constitutional Law, Assistance of
counsel.
Indictments found and returned in the Superior Court
Department on September 29, 2008.
The cases were tried before Frank M. Gaziano, J.
Stephen Paul Maidman for the defendant.
Julianne Campbell, Assistant District Attorney, for the
Commonwealth.
LOWY, J. On July 29, 2008, John Marshall (victim) was
stabbed to death in a parking lot in the Roxbury section of
Boston. A grand jury returned indictments charging the
defendant, David Copeland, with murder in the first degree and
armed robbery. At trial, the defendant conceded that he stabbed
2
the victim, but argued that he suffered from posttraumatic
stress disorder (PTSD) at the time of the killing, that the
killing was a spontaneous event, and that he did not rob the
victim. A Superior Court jury convicted the defendant of
felony-murder in the first degree and armed robbery. On appeal
from his convictions, the defendant challenges (1) the
Commonwealth's opening statement; (2) the sufficiency of the
evidence on the offenses of felony-murder and deliberately
premeditated murder; (3) the judge's refusal to instruct the
jury on felony-murder in the second degree; (4) the
Commonwealth's closing argument; and (5) defense counsel's
ineffective performance. He also requests that we exercise our
power under G. L. c. 278, § 33E, to order a new trial or reduce
the verdict to voluntary manslaughter. Because we find neither
reversible error nor a reason to exercise our authority under
§ 33E, we affirm the judgments.
Background. We recite the evidence presented during the
Commonwealth's case-in-chief, in the light most favorable to the
Commonwealth. Commonwealth v. Veiovis, 477 Mass. 472, 474
(2017). See Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979). On July 28 and 29, 2008, the defendant and two women
were smoking "crack" cocaine at an apartment on Regent Street.
They ran out of cocaine multiple times, and on each occasion
someone left the apartment and got more. But eventually, on the
3
second day, both the cocaine and the money ran out. The
defendant then asked one of the women if he could use her
cellular telephone, saying that he was going to meet somebody.
The defendant left the apartment wearing a white T-shirt.
That same day, a witness telephoned the police after she
saw two men fighting in the parking lot next to her apartment
building on Dale Street. She saw a man in a white shirt
apparently punching the victim, who was wearing a black shirt.
The victim was "[j]ust standing there" leaning against his
vehicle. The man in the white shirt eventually walked out of
the parking lot toward Regent Street, leaving the victim lying
on the ground. The witness then saw blood on the ground of the
parking lot.
At that time, a police officer who was in the area saw the
defendant walking away from Dale Street on Regent Street. The
defendant was sweating, bleeding, and shirtless; he was holding
a white T-shirt in his hands. The officer asked the defendant
if he needed help, and the defendant "shrugged [the officer] off
and kept walking." After receiving a radio call about a
stabbing in a Dale Street parking lot, the officer put out a
description of the defendant and said the defendant might be in
a nearby building. Officers began to canvass the area.
The defendant returned to the Regent Street apartment
sweaty and with blood on him. He first told one of the women at
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the apartment that he had fallen, but then said that "he got
someone" and that he "took care of business." The women told
the defendant that police were gathering outside. After hearing
this, the defendant handed one of the women cocaine, marijuana,
and money, all of which had blood on them. He also told the
other woman that she did not need to open the door. He went
into the kitchen, saying that he was trying to get to the back
door, but he was still inside when a police officer entered the
apartment.
After the defendant's arrest, police found blood containing
the victim's deoxyribonucleic acid (DNA) on the defendant's ear.
The defendant initially told a detective that he had not left
the Regent Street apartment building on the day of the killing.
But when the detective told the defendant that he had evidence
to the contrary, the defendant acknowledged that he had left
once to buy alcohol.
Meanwhile, police and paramedics found the victim lying on
his back between two parked vehicles in the Dale Street parking
lot, covered in blood. He was wearing a dark shirt, either navy
blue or black. The victim was a crack cocaine dealer, and he
also used marijuana. According to his girlfriend, who had
previously seen drugs in the victim's vehicle, he had been
selling drugs on July 29.
5
The victim died at the hospital from an eight inch stab
wound to the heart. He had other wounds on his body, including
wounds on his hands consistent with attempts to block a knife.
There were components of marijuana in his blood.
Inside the victim's vehicle, which was at the crime scene,
police found crack cocaine and a hat with the defendant's DNA on
it. When police searched the Regent Street apartment, they
found a knife wrapped in a white T-shirt. The medical examiner
testified that the knife could have caused the injury that
killed the victim. Blood on the knife matched the victim's DNA.
Police officers also examined video footage captured on July 29
by surveillance cameras next to the Dale Street parking lot.
The defendant appeared on that footage at around the time of the
killing.
The defendant moved at the close of the Commonwealth's case
for a required finding of not guilty on the armed robbery
charge. The judge denied the motion. The defendant then
presented multiple witnesses, including a psychiatrist who had
interviewed the defendant, to testify about an alleged sexual
assault against the defendant that occurred in February 2008.
The psychiatrist testified that the assault resulted in PTSD
that affected the defendant's mental state on the day of the
killing.
6
The defendant also testified. He asserted that he planned
to give the victim marijuana in exchange for crack cocaine on
July 29, and he claimed to have exchanged drugs with the victim
before. He also stated that he took with him a knife from the
kitchen of the apartment when he went to meet the victim. After
seeing the amount of cocaine that the victim wanted to exchange
for the marijuana, the defendant tried to back out of the deal.
He testified that a fight ensued inside the vehicle, resulting
in the defendant stabbing the victim. He stated that the
cocaine that the victim had offered him was not the same cocaine
that the police found in the victim's vehicle.
On cross examination, the defendant admitted that his
entire postarrest statement to police was a lie. He also
insisted that he had not handed over any cocaine on his return
to the apartment, but had no answer for where the cocaine that
the victim had offered him went.
After the defense rested, the defendant moved for a
required finding of not guilty on the offenses of murder in the
first degree, murder in the second degree, and armed robbery.
After brief oral argument, during which the defendant emphasized
the lack of evidence with respect to felony-murder, the judge
denied the motion "as to the armed robbery, felony murder and
other theories of first degree murder." The jury were
instructed on murder in the first degree based on the theory of
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premeditation; murder in the first degree based on the theory of
felony-murder, with armed robbery as the predicate felony;
murder in the second degree based on malice; manslaughter; and
armed robbery. The judge declined to instruct the jury on
murder in the second degree based on larceny from a person.
After the jury returned their verdict, the defendant filed
motions under Mass. R. Crim. P. 25 (b) (2), as amended, 420
Mass. 1502 (1995), regarding the felony-murder offense and the
armed robbery offense. The judge denied both motions.1
Discussion. 1. Sufficiency of the evidence for felony-
murder. The defendant contends that the evidence did not
support a conviction of felony-murder because there was
insufficient evidence of armed robbery, the predicate felony.2
According to the defendant, the judge erred by failing to enter
sua sponte a required finding of not guilty on the felony-murder
1 In denying the motion regarding felony-murder, the judge
stated that he found "no basis in the facts to set aside or
reduce the verdict." In denying the motion regarding armed
robbery, the judge concluded that "[t]he evidence supported the
conviction."
2 The defendant also argues that the alleged armed robbery
merges with the killing because the Commonwealth failed to show
two separate assaults. However, in Commonwealth v. Christian,
430 Mass. 552, 556 (2000), overruled on other grounds by
Commonwealth v. Paulding, 438 Mass. 1 (2002), we observed that
we could "envision no situation in which an armed robbery would
not support a conviction of felony-murder." We have recently
reaffirmed this conclusion, see Commonwealth v. Fredette, 480
Mass. 75, 83 (2018), and we discern no reason to disturb it.
8
charge at the close of the Commonwealth's case, and erred again
by denying the defendant's motion for a required finding at the
close of all the evidence.3
"In reviewing the denial of a motion for a required
finding, we must determine whether the evidence offered by the
Commonwealth, together with reasonable inferences therefrom,
when viewed in its light most favorable to the Commonwealth, was
sufficient to persuade a rational jury beyond a reasonable doubt
of the existence of every element of the crime charged"
(quotation and citation omitted). Commonwealth v. Whitaker, 460
Mass. 409, 416 (2011). "[A] conviction may rest upon
circumstantial evidence alone, and the inferences a jury may
draw from the relevant evidence need only be reasonable and
possible," not "necessary or inescapable" (citation omitted).
Commonwealth v. Martin, 467 Mass. 291, 312 (2014). "[W]e do not
3 The defendant also contends that the evidence did not
support a conviction of deliberately premeditated murder. This
argument fails because the defendant was not convicted of that
crime. See, e.g., Commonwealth v. Forde, 392 Mass. 453, 456
(1984) (even if evidence of deliberate premeditation was
insufficient, error would be harmless beyond reasonable doubt
because defendant convicted of murder in second degree).
Moreover, although we do not decide whether the evidence was
sufficient to sustain a conviction of deliberate premeditation,
the facts here are similar to cases where we have upheld such a
conviction. See Commonwealth v. Salazar, 481 Mass. 105, 112
(2018) (sufficient evidence of deliberate premeditation where
"defendant retrieved the weapon . . . before the killing,"
"fatal wound was a deep wound to the victim's neck," and "victim
had at least six other stab or incised wounds, including
defensive wounds").
9
weigh supporting evidence against conflicting evidence when
considering whether the jury could have found each element of
the crime charged." Id.When reviewing a motion for a required finding that was
filed at the close of the Commonwealth's case and was renewed at
the close of all the evidence, "[w]e consider the state of the
evidence at the close of the Commonwealth's case to determine
whether the defendant's motion should have been granted at that
time. We also consider the state of the evidence at the close
of all the evidence, to determine whether the Commonwealth's
position as to proof deteriorated after it closed its case"
(alteration omitted). Commonwealth v. Semedo, 456 Mass. 1, 8
(2010), quoting Commonwealth v. Sheline, 391 Mass. 279, 283
(1984).4
To prove that the defendant committed armed robbery, the
Commonwealth had to show that the defendant (1) "[took] money or
other property from the victim," (2) "with the intent to steal
it," (3) "while armed with a dangerous weapon," and (4) "by
4 It is clear that the defendant moved for a required
finding of not guilty on the offense of felony-murder at the
close of all the evidence. It is less clear that the defendant
preserved his rights on the felony-murder offense at the close
of the Commonwealth's case. At that point, the defendant moved
for a required finding on armed robbery, the predicate felony,
but not on felony-murder. However, for purposes of our analysis
we assume, without deciding, that the defendant preserved his
rights on the offense of felony-murder when he moved for a
required finding on armed robbery.
10
applying actual force to the victim or putting the victim in
fear through the use of threatening words or gestures."
Commonwealth v. Benitez, 464 Mass. 686, 694 n.12 (2013).
According to the defendant, at the close of the Commonwealth's
case there was no evidence that the defendant took money or
property from the victim, that any of the victim's money or
property was missing, that the defendant applied actual force
against or threatened the victim, or that the defendant intended
to steal from the victim. Additionally, the defendant argues
that the Commonwealth failed to prove "that the taking did not
occur as a mere afterthought to the killing." We disagree. See
Commonwealth v. Webster, 480 Mass. 161, 167-168 (2018).
From the evidence presented during the Commonwealth's case-
in-chief, a rational jury could infer that the defendant
intended to and did steal from the victim on July 29, and that
he did so using a knife to stab the victim. The defendant,
apparently armed with a knife, left the Regent Street apartment
to meet somebody after he and his companions had run out of
money and cocaine. He later returned to the apartment with
money and cocaine that had blood on them. Upon his return, the
defendant said that he "got someone" and that he "took care of
business." See Commonwealth v. Morgan, 460 Mass. 277, 290
(2011) ("evidence tend[ing] to show that the defendant needed
money and went to various extremes to get it" relevant to
11
defendant's motive to rob). Cf. Commonwealth v. Cannon, 449
Mass. 462, 469 (2007) (sufficient evidence of plan to rob where
"jury could reasonably infer that the defendant . . . knew that
the victim kept both money and illegal drugs in his apartment").5
In addition, there was compelling circumstantial evidence
that the victim possessed drugs on July 29. He had been selling
drugs that day, he kept drugs in his vehicle, crack cocaine was
found in his vehicle after he died, and he had been using
marijuana at some point before being killed. There also was
abundant evidence connecting the defendant with the crime scene.
A hat the defendant had worn was found in the victim's vehicle;
the defendant was wearing a white T-shirt when he left the
apartment, a witness saw a man with a white shirt leaving the
Dale Street parking lot after a fight with the victim, and the
same witness saw blood on the ground near the victim; the
defendant was observed by a police officer near the crime scene,
sweaty and bloody and holding a white T-shirt, around the time
that the crime was reported; and surveillance footage showed the
5 Our conclusion disposes of the defendant's assertion that
the Commonwealth improperly mentioned in its opening statement
and closing argument that the defendant had a plan to rob the
victim. See Commonwealth v. DePina, 476 Mass. 614, 627 (2017)
("A prosecutor's opening statement may reference anything that
he or she reasonably believes in good faith will be proved by
evidence introduced during the course of the trial . . ."). See
also Commonwealth v. Veiovis, 477 Mass. 472, 489 (2017) (closing
argument proper where assertion "was fair argument based on
inferences from the evidence in the case").
12
defendant near the Dale Street parking lot on the day of the
killing. The victim's blood was found on the defendant's body
after his arrest, and a knife with the victim's blood on it that
could have been used to inflict the victim's fatal wound was
found wrapped in a white T-shirt in the apartment to which the
defendant returned on July 29. See Commonwealth v. McGrath, 358
Mass. 314, 318 (1970) (finding sufficient evidence of armed
robbery of drug store where, inter alia, defendant was near drug
store around time of murders and, one hour after crime, "was in
possession of the revolver which was proved to have been the one
that killed" victim).
The defendant's consciousness of guilt further supports our
conclusion. See Martin, 467 Mass. at 315, quoting Commonwealth
v. Booker, 386 Mass. 466, 470 (1982) ("evidence of consciousness
of guilt 'may be sufficient to amass a quantum of proof
necessary to prove guilt' when 'coupled with other probable
inferences'"). Upon returning to the apartment, the defendant
initially explained his physical condition to one of the women
by saying that he had fallen, but then said that he "got
someone"; after learning that police were outside the apartment,
the defendant got rid of bloody drugs and money, told one of the
women that she need not open the apartment door, and said that
he was trying to get to the apartment's back door; and after
being arrested, the defendant admitted to the police that he had
13
left the apartment only after a detective told him there was
evidence to that effect. See Commonwealth v. Cook, 364 Mass.
767, 772 (1974) (defendant's "contradictory statements and
attempted flight" suggested "consciousness of guilt").
Although the evidence the defendant introduced after the
Commonwealth rested contradicted part of the Commonwealth's
case, the Commonwealth's case did not deteriorate. A finding of
not guilty or guilty of a lesser offense required the jury to
reject the testimony of the Commonwealth's witnesses in favor of
the defendant's version of events. "[Q]uestions of credibility
belong properly to the finder of fact . . . and, in considering
whether the evidence is sufficient to support a conviction,
should be resolved in favor of the Commonwealth" (citation
omitted). Martin, 467 Mass. at 315. The evidence before the
jury at the close of all the evidence, when viewed in the light
most favorable to the Commonwealth, remained sufficient to
support a conviction of felony-murder based on armed robbery.6
6 The cases the defendant cites in support of his argument
do not affect our conclusion. In Commonwealth v. Mandile, 403
Mass. 93, 98 (1988), we decided that there was insufficient
evidence of armed robbery where the only evidence was "motive,
means, unexplained possession of funds, and consciousness of
guilt" (footnote omitted). The only motive suggested in Mandile
was a desire for money, but there was no evidence that the
murder victim "kept large sums of money in his home." Id. at
94-95, 97. In addition, there was no evidence linking the money
found on the defendant in Mandile with the murder victim. Id.
at 95, 97. Here, in contrast, the defendant had run out of
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2. Jury instructions. The defendant contends that the
judge erred in declining to instruct the jury on felony-murder
in the second degree based on the offense of larceny from a
person. "[A]n instruction on felony-murder in the second degree
is necessary when there is a rational basis in the evidence to
warrant the instruction" (quotations and citation omitted).
Commonwealth v. Holley, 478 Mass. 508, 528 (2017). There was no
such rational basis here.
"To return a verdict of larceny, not robbery, a jury must
conclude that any property was taken without the threat or use
of force." Commonwealth v. Christian, 430 Mass. 552, 558
(2000), overruled on another ground by Commonwealth v. Paulding,
438 Mass. 1 (2002). Here, all the evidence "indicates a
confrontation and force . . . . The facts cannot support a
finding that the killing occurred in the course of larceny from
drugs and the murder victim was a drug dealer. Moreover, the
drugs and money the defendant handed over after returning to the
apartment had blood on them, forging a link between the property
and the murder victim. The situation here is more similar to
the cases distinguished in Mandile. In those cases, according
to the Mandile court, we upheld convictions in the face of "no
direct evidence of a loss of money" because "there was
circumstantial evidence from which a jury could infer a robbery
or attempted robbery." Id. at 97. The defendant also cites
Commonwealth v. Moran, 387 Mass. 644, 646 (1982), in which we
concluded "that where the intent to steal is no more than an
afterthought to a previous assault, there is no robbery." Here,
however, the Commonwealth presented sufficient evidence to allow
a rational jury to find that the defendant planned to rob the
victim and thus that the robbery was not an afterthought. See
id. (facts supported finding that robbery was not afterthought).
15
the person, because force or the threat of force permeated the
encounter . . . ." Commonwealth v. Glowacki, 398 Mass. 507, 514
(1986), overruled on another ground by Christian, supra.
Therefore, the judge did not err in declining to instruct on
felony-murder in the second degree. See Commonwealth v. Ford,
35 Mass. App. Ct. 752, 756 (1994) (affirming judge's refusal to
instruct on larceny from person where "neither the prosecutor's
theory of what occurred nor the defendant's theory raised any
possibility of a finding of the lesser crime").
3. Commonwealth's closing argument. The defendant
contends that the Commonwealth made several improper comments
during its closing argument. Because the defendant did not
object to the closing argument at trial, we review to determine
whether any errors created a substantial likelihood of a
miscarriage of justice. Veiovis, 477 Mass. at 488.
Only one of the defendant's contentions requires
significant discussion. According to the defendant, the
Commonwealth improperly referred to the defendant's medical
expert as "a paid expert with a job to do . . . , and that job
was to come up with the excuse and then come in and sell that
excuse to you." "[I]t is improper for a prosecutor to suggest
that an expert witness's testimony was 'bought' by a defendant
or to characterize the witness as a 'hired gun' where . . .
there was no evidence that he was paid more than his customary
16
fee" (citation omitted). Commonwealth v. Bishop, 461 Mass. 586,
598 (2012). Here, the expert testified that defense counsel did
not place a "specific limit" on how much money he could spend.
However, he also revealed that he was conscious of avoiding
unnecessary expenses, testifying that he was "[m]indful of not
trying to cost the Commonwealth . . . too much money in doing
work that is not really going to produce much by way of my
opinion." Given this evidence, it was improper for the
Commonwealth to suggest that the defendant's expert was paid to
reach a particular conclusion.
Nevertheless, it is unlikely that this error influenced the
jury's decision. It was an isolated error, made in the context
of a larger, proper discussion of evidence showing weaknesses in
the expert's assessment of the defendant, and the judge
instructed the jury that closing arguments are not evidence.
See Commonwealth v. Kozec, 399 Mass. 514, 517 (1987)
("instructions may mitigate any prejudice in the final
argument"). Therefore, the error did not create a substantial
likelihood of a miscarriage of justice. See Commonwealth v.
Goitia, 480 Mass. 763, 768 (2018), quoting Commonwealth v.
Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014)
(substantial likelihood of miscarriage of justice requires error
that is "likely to have influenced the jury's conclusion").
17
Second, the defendant takes issue with the Commonwealth's
suggestion that the defendant was not sexually assaulted in
February 2008. In his closing, the prosecutor acknowledged that
he was "not here to try and prove to you that this man was not
assaulted." He questioned whether the incident occurred,
however, stating that "one thing is for sure about whatever
happened in February of 2008, there's a lot of questions about
it," and that "[m]aybe something happened, maybe it didn't." "A
prosecutor may not misstate evidence or refer to facts not in
evidence in a closing argument." Commonwealth v. Goddard, 476
Mass. 443, 449 (2017). But a prosecutor "may properly attack
the credibility of witnesses." Commonwealth v. Donovan, 422
Mass. 349, 357 (1996). That is what the prosecutor did here.
There was no error.
Third, the Commonwealth allegedly erred by suggesting that
the defendant's psychiatrist expert incorrectly examined the
defendant and had an obligation to investigate other sources of
information about the defendant. In his closing, the prosecutor
observed multiple times that the psychiatrist had not verified
the defendant's statements to the psychiatrist. The
Commonwealth emphasized this lack of corroboration on cross-
examination; the assertions during closing argument were
therefore grounded in the evidence. Moreover, it is proper to
demonstrate that an opposing expert's opinion is based
18
exclusively on the defendant's version of events. See
Commonwealth v. Johnston, 467 Mass. 674, 698 (2014) (no error
where prosecutor's cross-examination of expert "went to the
thoroughness of [expert's] examination of the defendant");
Commonwealth v. Noxon, 319 Mass. 495, 538 (1946) ("it is open to
the other party to show on cross-examination of the expert that
there are facts in the case not accounted for in the opinion of
the expert"). We find no error.
Fourth, the defendant argues that the Commonwealth
improperly explained premeditation as capable of occurring with
a snap of the fingers. This explanation was not erroneous where
it was a correct statement of the law. "No particular length of
time of reflection is required to find deliberate premeditation,
and the decision may be made in only a few seconds."
Commonwealth v. Rakes, 478 Mass. 22, 34 (2017).
Fifth, the defendant contends that the Commonwealth
improperly suggested to the jury that crack dealers do not
exchange crack for marijuana. The prosecutor stated in his
closing argument that the defendant
"went out to go buy crack from [the victim]. And he is
somehow, and apply your common sense to this . . . , he has
somehow found the crack dealer that exchanges marijuana for
crack . . . . [H]e . . . wants you to believe that [the
victim] is okay . . . being on sort of an even exchange
business. I'll get some marijuana from you in exchange for
crack[.] Do you really think that that's the way crack
dealers work in the city of Boston? That they don't come
out looking for money?"
19
There was no evidence at trial to suggest that crack dealers in
general do not barter. However, the jury learned that the
defendant told the psychiatrist expert during an interview that
the defendant "would usually buy from [the victim] using cash,
but on this occasion he sought to exchange marijuana for
cocaine." This evidence suggests that it would have been
unusual for the defendant to pay for cocaine with marijuana.
Therefore, the Commonwealth's assertions were properly grounded
in the evidence. See Veiovis, 477 Mass. at 489.
Finally, the Commonwealth allegedly erred in arguing that
the defendant ran from accountability after killing the victim.
The prosecutor argued that the defendant "fled the scene. He
ran, and he . . . did not run from fear. He did not run from
danger. He ran from accountability, and he has continued to run
from accountability for what he did that day from that day to
this." There was abundant evidence at trial that the defendant
tried to avoid arrest and prosecution. "Here, where the
prosecutor's references to the defendant's accountability for
his actions were . . . connected to specific acts of the
defendant that were in evidence, the comments were not
improper." Commonwealth v. Tavares, 471 Mass. 430, 444 (2015).
4. Ineffective assistance of counsel. The defendant
contends that his trial counsel was constitutionally
20
ineffective. Because this is a capital case, we review for a
substantial likelihood of a miscarriage of justice by asking
whether there was error and, if so, whether the error "was
likely to have influenced the jury's conclusion." Commonwealth
v. Alicea, 464 Mass. 837, 845 (2013), quoting Wright, 411 Mass.
at 682.
According to the defendant, trial counsel improperly failed
to (1) move for a required finding of not guilty on deliberately
premeditated murder and felony-murder at the close of the
Commonwealth's case, and (2) object to the Commonwealth's
closing argument. The defendant's claims cannot succeed here,
where we have already concluded that even if there was
insufficient evidence to convict on deliberately premeditated
murder, the error does not require reversal (see note 3, supra);
that there was sufficient evidence to convict the defendant of
felony-murder at the close of the Commonwealth's case; and that
any error in the Commonwealth's closing argument did not create
a substantial likelihood of a miscarriage of justice. See
Commonwealth v. Maynard, 436 Mass. 558, 572-573 (2002) ("Because
it has already been determined that the prosecutor's
misstatement does not warrant reversal under G. L. c. 278,
§ 33E, [defendant] cannot now succeed on his ineffective
assistance of counsel claim based on counsel's failure to object
to that same error"); Commonwealth v. Costa, 407 Mass. 216, 224
21
n.9 (1990) ("Because we determine that there was sufficient
evidence to support a conviction of murder in the first degree
. . . , we hold that trial counsel's failure to move for a
required finding of not guilty did not amount to ineffective
assistance of counsel").
5. Review under G. L. c. 278, § 33E. After reviewing the
entire record pursuant to our obligation under G. L. c. 278,
§ 33E, we decline to enter a verdict of a lesser degree of guilt
or to order a new trial.
Judgments affirmed.