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SJC-11751

                COMMONWEALTH   vs.   THOMAS GARDNER.



            Bristol.    November 10, 2017. - June 18, 2018.

   Present:    Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.


Homicide. Practice, Criminal, Cross-examination by prosecutor,
     Argument by prosecutor, Instructions to jury, Lesser
     included offense, Capital case. Evidence, Cross-
     examination, Impeachment of credibility.



     Indictments found and returned in the Superior Court
Department on July 25, 2012.

    The cases were tried before Gary A. Nickerson, J.


     Theodore F. Riordan (Deborah Bates Riordan also present)
for the defendant.
     Stephen C. Nadeau, Assistant District Attorney, for the
Commonwealth.


    LOWY, J.   On the morning of Saturday, November 5, 2011, the

defendant, Thomas Gardner, and the victim, Michael Duarte, met

to conduct a drug transaction at a house in New Bedford that was

owned by the defendant's ex-wife.    Four days later, after the

victim's girl friend had reported him missing, the police found
                                                                     2


the victim's body wrapped in a painter's tarpaulin hidden

beneath the basement stairs of that house.   The police also

found evidence of the victim's blood in the kitchen, and a trash

bag outside the house that contained clothing and a hammer

bearing both the victim's and the defendant's blood.     Further

investigation showed that the victim had died of blunt force

trauma to the head.   He had suffered nineteen lacerations to his

head and had four skull fractures; these injuries were

consistent with blows from a hammer.

     A Superior Court jury convicted the defendant of murder in

the first degree on the theory of extreme atrocity or cruelty.1

The defendant appeals from his convictions, claiming that (1)

the prosecutor's references to the defendant's prearrest silence

during cross-examination and in closing argument were improper;

(2) the prosecutor mischaracterized evidence during closing

argument; and (3) the judge's instructions to the jury

concerning lesser included offenses were erroneous.    Although we

agree that certain of the prosecutor's questions and comments

concerning the defendant's failure to contact the police before

his arrest were improper, we conclude that neither these errors

nor the other arguments raised by the defendant created a

substantial likelihood of a miscarriage of justice.

     1 The jury also found the defendant guilty of larceny of a
motor vehicle; violation of an abuse prevention order; and
larceny.
                                                                     3


Accordingly, we affirm the defendant's convictions and decline

to exercise our extraordinary authority to grant relief under

G. L. c. 278, § 33E.

    Facts.    We summarize the facts relevant to this appeal as

the jury could have found them, reserving certain details for

later discussion.    The victim lived in New Bedford with his girl

friend and their two daughters.    Shortly before 9 A.M. on

November 5, 2011, the victim left his home, driving a Honda

Civic automobile, after telling his girl friend that he was

going to look at a house, located on Churchill Street, that was

for sale.   He was supposed to return home shortly to take care

of his daughters.    When the victim failed to return, his girl

friend began calling him repeatedly on his cellular telephone

beginning at 9:30 A.M., but she was unable to reach him.      That

afternoon, she drove to the house on Churchill Street that the

victim had gone to see, but no one answered when she knocked on

the door.    Later that evening she contacted the New Bedford

police to report that the victim was missing.

    On the morning of November 9, officers with the Fairfield,

Connecticut, police department learned that the victim's Honda

Civic was at a rest area off of Interstate Route 95.   When the

first officer arrived, she observed the victim's vehicle parked

at the far end of the parking lot, and the defendant sitting in

the driver's seat.
                                                                    4


     When the defendant saw the police cruiser, he fled in the

vehicle, reaching speeds in excess of one hundred miles per hour

and, among other things, struck another vehicle and ran over the

foot of a police officer.   The defendant eventually lost control

of the vehicle, abandoning it in a wooded area.   He continued on

foot until he reached Westport, Connecticut, where he entered a

building that was under construction and hid.

     Shortly afterward, police officers arrested the defendant

as he walked through Westport.   The defendant initially denied

that he was Thomas Gardner and claimed that he was a

construction contractor working on the building where he had

been hiding.

     The defendant was eventually transported to a police

station in Fairfield, Connecticut, where he was questioned by a

member of the Massachusetts State police and a detective with

the New Bedford police department.   The interview was recorded

and later shown to the jury at trial.2   After the police read the

defendant the Miranda rights and informed him that the interview

was being recorded, the defendant waived his rights and agreed

     2 The defendant challenged the voluntariness of his
statements. After a hearing, the motion judge found that the
statements "were freely and voluntarily given beyond a
reasonable doubt." After the videotape was played for the jury,
and later in his final instructions, the trial judge told the
jury that they should not consider the statements made by the
defendant unless they found beyond a reasonable doubt that the
defendant had made the statements and that he had made them
voluntarily, freely, and rationally.
                                                                     5


to speak with police.   The defendant stated that he was

traveling with a "buddy" who was going to Florida and who had

agreed to drop the defendant off at his mother's house in

Pennsylvania on the way.    The defendant said that he and his

friend had left New Bedford late in the evening on November 6 in

the friend's Honda Civic.    En route, they pulled off at the

Fairfield rest stop, where they remained for two days.       The

defendant said that his friend had been inside a restaurant at

the rest stop when the police cruiser had appeared, and that the

defendant fled without him in the Honda Civic.    After some

prompting, the defendant indicated that the person he had been

traveling with was the victim, who, he suggested, was going to

Florida to get away from his girl friend.    After further

questioning about his trip, the defendant terminated the

interview.

    Later that same day, the New Bedford police department

contacted the defendant's ex-wife and obtained her permission to

search the Churchill Street house.    There, the police discovered

the victim's body hidden beneath a staircase in the basement,

wrapped in a painter's tarpaulin secured with tape, with a

plastic bag placed over his head.    A paint can, a white

painter's cloth, and other painter's materials had been piled on

top of the body.   In the kitchen, blood was found on the floor,

a ceiling fan, and a wall clock.     Police also detected blood on
                                                                    6


the basement stairs.   There was testimony that the blood on the

wall clock in the kitchen belonged to the victim.   Outside the

house, the police discovered a trash bag containing a sweatshirt

with both the victim's and the defendant's blood on a sleeve, a

T-shirt with the victim's blood on the back, and a hammer

bearing both the victim's and the defendant's blood.   Subsequent

investigation of the defendant's cellular telephone showed that

on November 5, 2011, the defendant had called the victim at 8:24

A.M. and 10:47 A.M., and that the victim had called the

defendant at 8:38 A.M. and 9:06 A.M.

    The medical examiner testified that the victim's death was

caused by blunt force trauma to the head and brain injuries.

The victim had suffered nineteen lacerations and two abrasions

to his head; thirteen of the lacerations went to the bone.

There were four distinct skull fractures.   All of these injuries

were consistent with having been caused by blows from a hammer.

All the injuries were inflicted at around the same time and,

although any one laceration alone could have been fatal, there

was no way to determine the order in which the injuries were

sustained, which injury rendered the victim unconscious, or

which caused his death.   The victim also had lacerations on his

face, bleeding around both eyes, and minor abrasions on his

right hand.   He was missing some teeth that were later
                                                                      7


discovered in his stomach.    The medical examiner opined that the

victim had swallowed them prior to his death.

    At trial, the defendant testified in his own defense.       He

admitted that he had killed the victim with the hammer that the

police had found, but claimed that he had acted in self-defense.

He testified that he was living at the Churchill Street house

and that, on the morning of November 5, 2011, he had arranged to

meet the victim there to buy heroin from him.     When the

defendant gave the victim money for the heroin purchase,

however, the victim became angry because the defendant already

owed him money and did not have enough cash for the new

purchase.   According to the defendant, the victim punched him

and a fight ensued, during which the victim tackled him and

slammed him to the floor; the victim then got on top of the

defendant, putting his knees on the defendant's chest and his

hands around the defendant's throat, choking him.     The defendant

testified that he then grabbed a hammer from a nearby shelf and

began "slapping" the victim's head with the side of the hammer

before finally striking him with the face of the hammer and

knocking him out briefly.    After the defendant stood up and

tried to catch his breath, however, the victim regained

consciousness, grabbed the defendant's pants leg, and tried to

yank the defendant back down to the ground.     At that point, the

defendant testified, he struck the victim again with the face of
                                                                       8


the hammer, killing him.     The defendant then wrapped the

victim's body in a tarpaulin and put it in the basement;

disposed of the hammer and clothes in the trash; took the money

from the victim's wallet; sent a false text message to the

victim's cellular telephone asking him why he had not yet

arrived; hid the victim's wallet and the victim's cellular

telephone; and arranged to meet a friend to sell him the

victim's drugs.    The next day the defendant fled New Bedford.

     Discussion.     1.   Prosecutor's references to the defendant's

prearrest silence.    The defendant argues that the prosecutor

improperly cross-examined him about his prearrest silence,3 and

exploited that evidence in closing argument, in violation of the

common law and his privilege against self-incrimination under

art. 12 of the Massachusetts Declaration of Rights.      The

Commonwealth contends that the prosecutor's cross-examination

concerning the defendant's prearrest silence was permissible in

light of the omissions and falsehoods in the defendant's

postarrest statements.



     3 "Prearrest" silence occurs in the period prior to custody,
"[w]hen a citizen is under no official compulsion whatever,
either to speak or to remain silent." Jenkins v. Anderson, 447
U.S. 231, 243-244 (1980) (Stevens, J., concurring). See
Commonwealth v. Nickerson, 386 Mass. 54, 55, 60 (1982).
"Postarrest" silence is silence at the time of arrest and after
receiving Miranda warnings. See Doyle v. Ohio, 426 U.S. 610,
618-619 (1976). See also Fletcher v. Weir, 455 U.S. 603, 605-
606 (1982) (per curiam).
                                                                    9


     We begin our analysis by noting that we have not previously

considered whether art. 12 prohibits use of a defendant's

prearrest silence for impeachment.     See Commonwealth v.

Nickerson, 386 Mass. 54, 59 (1982).4    Instead, we have resolved

issues involving use of a defendant's prearrest silence for

impeachment on evidentiary grounds.     See Commonwealth v. Niemic,

472 Mass. 665, 672-673 (2015); Nickerson, supra at 60-61.5

     We first addressed the use of a defendant's prearrest

silence for impeachment in Nickerson, 386 Mass. at 54.       We

recognized that where a defendant does not contact the police to

tell them his story before he is arrested, and later testifies

at trial to facts that he failed to disclose to the police

before his arrest, the defendant's prearrest silence typically

is of limited probative value with respect to the credibility of

his testimony.   See id. at 60-61 & n.6.    We explained that there

may be many reasons why a defendant does not wish to come


     4 "The Supreme Court of the United States . . . held that a
defendant's pre-arrest silence may be used to impeach him
without denying fundamental fairness guaranteed by the
Fourteenth Amendment" to the United States Constitution, but
"left it to the States to determine under their own rules of
evidence when pre-arrest silence is so inconsistent with a
defendant's testimony that impeachment by reference to that
silence is probative." Nickerson, 386 Mass. at 59, citing
Jenkins, 447 U.S. at 239.

     5 The defendant in Nickerson, 386 Mass. at 59, made no
claims under the Massachusetts Constitution, and accordingly we
decided the case solely on common-law grounds. See Irwin v.
Commonwealth, 465 Mass. 834, 852 n.31 (2013).
                                                                    10


forward and speak to the police that have no bearing on his

guilt or innocence.    See id. at 61 n.6.   "[A]n individual's

failure to speak may be the result of his awareness that he has

no obligation to speak, his caution arising from knowledge that

anything he says may be used against him, and his belief that

efforts to exonerate himself would be futile."    Id., citing

People v. Conyers, 52 N.Y.2d 454, 458 (1981).     Moreover, "some

individuals [may] not come forward because they want to avoid

contact with the police."     Nickerson, supra.

    Jurors, however, who may not recognize the wide variety of

alternative explanations for a defendant's prearrest silence,

may overvalue such evidence and "construe such silence as an

admission and, as a consequence, may draw an unwarranted

inference of guilt."    Nickerson, 386 Mass. at 61 n.6, quoting

Conyers, 52 N.Y.2d at 459.    Given these circumstances, allowing

a defendant to be impeached based on his prearrest silence may

result in substantial prejudice to that defendant, "burden[ing]

his right to testify in his own defense."     Nickerson, supra at

61, citing Jenkins v. Anderson, 447 U.S. 231, 246 (1980)

(Marshall, J., dissenting).

    Consequently, we advised in Nickerson, 386 Mass. at 62,

that "[i]n general, impeachment of a defendant with the fact of

his prearrest silence should be approached with caution, and,

wherever it is undertaken, it should be prefaced by a proper
                                                                  11


demonstration that it was 'natural' to expect the defendant to

speak in the circumstances."   The trial judge may consider

conducting a voir dire in these circumstances and, "if the

evidence is admitted, the judge should, on request, instruct the

jury to consider that silence for the purposes of impeachment

only if they find that the witness naturally should have spoken

up in the circumstances."   Id.6

    Applying this test to the situation in Nickerson, 386 Mass.

at 55, 61-62, where the defendant testified at trial that

another person had committed the assault and battery at issue,

we held that it was improper for the judge to instruct the jury

that, in assessing the defendant's credibility, they could

consider the defendant's failure to give this information to the

police before his arrest.   We reasoned that, if the defendant

had volunteered this information to the police, it would have

shown that he was at the scene of the crime when it was

committed, had seen the victim attacked and the weapon used, and

knew the identity of the attacker -- information that "would

    6  In contrast to impeachment of a testifying defendant,
before a witness other than the defendant can be impeached with
his or her failure to report exculpatory evidence to police, the
Commonwealth must establish "[1] that the witness knew of the
pending charges in sufficient detail to realize that he
possessed exculpatory information, [2] that the witness had
reason to make the information available, [and] [3] that he [or
she] was familiar with the means of reporting it to the proper
authorities." Commonwealth v. Hart, 455 Mass. 230, 238 (2009),
quoting Commonwealth v. Brown, 11 Mass. App. Ct. 288, 296–297
(1981).
                                                                   12


have gone a long way toward proving that the defendant committed

the crime charged and, as an admission, would have been

admissible as tending to prove his guilt."    Id. at 60.   Hence

"[i]t would not have been 'natural' for the defendant to have

come forward . . . and produce incriminating evidence against

himself."   Id.

    More recently, in Niemic, 472 Mass. at 668-669, 673, a

murder case where the defendant took the stand to testify that

he had stabbed the victim in self-defense, we also held that it

was error for the prosecutor to cross-examine the defendant

about his failure to contact police and tell them about his

alleged self-defense before his arrest.    As in Nickerson, 386

Mass. at 60, we concluded that "it would not have been natural

for [the defendant] to seek out police to tell his exculpatory

story."   Niemic, supra at 673.7   See Commonwealth v. Irwin, 72




    7  It is important to distinguish the situation where a
defendant is being questioned about his or her failure to
contact the police, however, from the situation where a
defendant is being questioned about omissions in prearrest
statements or inconsistencies between those statements and the
defendant's later testimony. For example, although we held in
Commonwealth v. Niemic, 472 Mass. 665, 672-673 (2015), that it
was improper for the prosecutor to question the defendant about
his failure to contact the police to tell them that he had
stabbed the victim in self-defense, we also held that the
prosecutor could properly question the defendant about voluntary
prearrest statements that he had made to civilian witnesses in
which he had omitted any mention of self-defense, where it would
have been natural for him to explain that he had been acting in
self-defense. See Commonwealth v. Greineder, 458 Mass. 207,
                                                                  13


Mass. App. Ct. 643, 653-654 (2008) (prosecutor's focus during

cross-examination of defendant and in closing argument on

defendant's refusal to participate in prearrest interview with

police detective was improper); Commonwealth v. Ewing, 67 Mass.

App. Ct. 531, 544-545 (2006), S.C., 449 Mass. 1035 (2007)

(prosecutor's remarks urging jury to discredit defendant's

testimony because he did not contact police prior to trial after

learning of charges not proper).

    There are, however, situations where a defendant's

testimony suggests that it would have been natural for him to

contact police in the circumstances described, and in those

cases it is appropriate for the prosecutor to cross-examine the

defendant about his failure to do so.   For example, in

Commonwealth v. Barnoski, 418 Mass. 523, 524, 534 (1994), the

Commonwealth alleged that the defendant had shot a father and

son who were his social friends.   The father died from his

wounds, while the son survived.    Id. at 527.   The defendant

testified that the son had shot the father, that the son had

then threatened the defendant's wife, and that while the

defendant was protecting his wife another acquaintance struggled

with the son over the gun, resulting in the son's shooting.      Id.

at 534.   Given this testimony, we concluded that it was not



243-244 (2010), vacated on another grounds, 567 U.S. 948 (2012),
S.C., 464 Mass. 580, cert. denied, 571 U.S. 865 (2013).
                                                                      14


improper for the prosecutor to question the defendant about his

failure to contact the police after the shootings, because "if

the defendant's story were true, he naturally would have

contacted the police to get help for his wounded friend," the

father.    Id. at 536.    "The prosecutor did not ask any questions

about the defendant's failure to inculpate [the son] (and thus

exculpate himself)," but "simply brought out the fact that the

defendant did not come forward when it would have been natural

for him to do so."       Id. at 536-537.

     Here, after the defendant testified that he had killed the

victim in self-defense, the prosecutor repeatedly cross-examined

the defendant about his failure to contact the police during the

period between the victim's death on November 5, 2011, and his

arrest on November 9, 2011.8      As in the cases cited above, the


     8 For example, at one point the prosecutor engaged in the
following colloquy with the defendant:

     Q.: "And it never occurred to you during any of this that
     you might want to call the police?"

     A.:    "Yes, it did.     I wanted to call the police, yes."

     Q.:   "You wanted to call the police?"

     A.:    "Yes."

     Q.: "Okay.      Did you call the police on November 5th,
     2011?"

     A.:    "No."

     Q.:   "The 6th?"
                                                                  15


prosecutor's cross-examination and closing argument were

improper insofar as they focused on the defendant's prearrest

silence.   Notwithstanding the defendant's statement that he

"wanted to call the police," the record suggests that, even

assuming that he had killed the victim in self-defense, it would

not have been natural for him to contact the police or volunteer

information to them under the circumstances.   In addition to the

fact that telling his story to the police would have implicated

him in the victim's death, the defendant had other reasons for

avoiding the police:    he was a drug addict; he had taken the

victim's money and his vehicle; and he had been previously

arrested for violating a restraining order that his ex-wife had

obtained, and he knew that he had violated that order again by

being in the Churchill Street house.




    A.:    "No."

    Q.:    "The 7th?"

    A.:    "No, I did not."

    Q.:    "The 8th?"

    A.:    "No."

The prosecutor returned to this line of questioning three more
times during cross-examination of the defendant, asking the
defendant to "tell the jury when it crossed [his] mind to call
the police after this happened," and whether he was thinking
about calling the police while he was hiding the defendant's
body, while he sent a text message to his ex-wife, or while he
was trying to sell drugs to another friend.
                                                                  16


     We reject the Commonwealth's argument that it was

appropriate for the prosecutor to question the defendant about

his prearrest silence because he dissembled in his postarrest

statement.   Our decisions have carefully distinguished

impermissible references to a defendant's prearrest silence from

permissible references to a defendant's postarrest statements.9

Even where we have concluded that the prosecutor properly

referred to inconsistencies and omissions in a defendant's

postarrest statement, we have still held that references to a

defendant's prearrest silence were improper.   See Commonwealth

v. Thompson, 431 Mass. 108, 116-118, cert. denied, 531 U.S. 864

(2000) (prosecutor could properly comment on defendant's

failure, during his postarrest interrogation, to ask appropriate

questions about what had happened to his wife and daughter, but

that it was error for prosecutor to question officer about

defendant's prearrest silence when told of his wife's death).


     9 In a line of cases beginning with Doyle, 426 U.S. at 618,
the United States Supreme Court defined the category of
infractions involving the use of a defendant's silence that
gives rise to constitutional error. In Doyle, the Court held
that the "use for impeachment purposes of [a defendant's]
silence, at the time of arrest and after receiving Miranda
warnings, violate[s] the Due Process Clause of the Fourteenth
Amendment." Id. at 619. The Court in Doyle did not, however,
establish a prophylactic rule that gives rise to a
constitutional error in every case in which a prosecutor refers
to a defendant's postarrest silence. The rule announced in
Doyle does not apply to impeachment testimony regarding prior
inconsistent statements after Miranda warnings. See Anderson v.
Charles, 447 U.S. 404, 408 (1980) (per curiam).
                                                                   17


Cf. Commonwealth v. Beneche, 458 Mass. 61, 71-72 & n.13, 76

(2010) (prosecutor could elicit testimony concerning defendant's

failure to ask how his son was killed to show consciousness of

guilt, but testimony about prearrest silence were not proper).

The fact that the defendant ultimately chose to speak to the

police after his arrest, but did so falsely, does not change our

conclusion that his prearrest silence was of minimal probative

value.

    Because defense counsel did not object to the prosecutor's

references to the defendant's prearrest silence during the

defendant's cross-examination and closing argument, we determine

whether those errors resulted in a substantial likelihood of a

miscarriage of justice.    See Commonwealth v. Kolenovic, 478

Mass. 189, 201 (2017).    We conclude that they did not, because

the defendant's testimony and self-defense claim were

extensively and primarily undermined by other evidence at trial.

    First, the jury saw the videotape recording of the

defendant's interrogation following his arrest in Connecticut,

during which the defendant said nothing about his alleged fight

with the victim, the victim's death, or killing in self-defense.

Instead, the defendant spun an elaborate tale about traveling

south with the victim and having left him behind at the rest

stop restaurant when he fled from the police.    At trial, the

defendant admitted that the story he had told during this
                                                                  18


interrogation was a lie.    As described above, the prosecutor

permissibly cross-examined the defendant about the falsehood of

his story and the inconsistencies between it and the defendant's

testimony at trial, and emphasized this topic in closing

argument.10

     Second, certain forensic evidence contradicted the

defendant's testimony.     Although the defendant testified that he

     10The prosecutor's cross-examination and comments in
closing argument concerning the defendant's postarrest
statements to police were proper, in contrast with the
references to the defendant's prearrest silence. The defendant
certainly had the right to refuse to speak to the police
following his arrest, as he was informed at the outset of his
interrogation. See, e.g., Commonwealth v. Clarke, 461 Mass.
336, 341, 345 (2012). Having chosen to speak, the defendant's
omissions in his postarrest statements to the police and the
inconsistencies between those statements and his testimony at
trial could be properly used by the prosecutor to question his
credibility. "A defendant who takes the witness stand . . . is
subject to the ordinary rigors of proper cross-examination,
including questioning about prior inconsistent statements
voluntarily made." Commonwealth v. Rivera, 425 Mass. 633, 639
(1997). See, e.g., Commonwealth v. Morales, 440 Mass. 536, 551-
552 (2003) (prosecutor could properly comment on defendant's
failure to indicate he acted in self-defense in statement given
to police); Commonwealth v. Thompson, 431 Mass. 108, 118, cert.
denied, 531 U.S. 864 (2000) (where defendant charged with
murdering wife gave voluntary postarrest statement to police
during which he maintained innocence but failed to ask any
questions about what had happened to wife or condition of
daughter, prosecutor could properly comment on defendant's
failure to ask appropriate questions that innocent party would
ordinarily ask); Commonwealth v. Lavalley, 410 Mass. 641, 648-
650 (1991), overruled on another ground by Commonwealth v. King,
445 Mass. 217 (2005) (where defendant in rape case testified at
trial that victim had made sexual advances to him, but omitted
that information in first statement to police, trial judge
properly instructed jury that if they found that defendant had
made false statements to police they could consider statements
as evidence of consciousness of guilt).
                                                                   19


and the victim were on the floor near some shelves when he

struck most of the hammer blows, the forensic chemist saw no

visible blood in that area but found visible blood on a ceiling

fan and a wall clock.   Most of the blood on the kitchen floor

was in a different area from where the defendant alleged that he

had fought with the victim and struck him with the hammer.     The

medical examiner stated that the scrapes on the victim's hands

were "very small," "lacking any contusion around them," and that

there were no injuries to the victim's forearms; this is

contrary to what one might expect if the victim had engaged in a

protracted struggle with the defendant.11   And two witnesses who

saw the defendant later on Saturday, November 5, testified that

the defendant's demeanor was normal and that they did not notice

that he had any injuries.   See Commonwealth v. Waite, 422 Mass.

792, 802 (1996).

     Finally, the jury heard extensive evidence tending to show

the defendant's consciousness of guilt, including his efforts to

conceal the victim's body and the evidence of the crime; the

admittedly false text message sent to the victim's cellular

telephone making it appear as if the victim had not come to the

Churchill Street house on the morning of November 5; the


     11The medical examiner testified that it was possible the
abrasions on the victim's right hand were caused by punching the
defendant, but that it was very unlikely given the absence of
any bruising.
                                                                  20


defendant's departure from New Bedford; and, after being

discovered in Connecticut, his flight, efforts to hide, and

false statements to police.   See Commonwealth v. Cassidy, 470

Mass. 201, 217 (2014) ("[e]vidence of flight, concealment, false

statements to police, destruction or concealment of evidence, .

. . or similar conduct generally is admissible as some evidence

of consciousness of guilt"); Barnoski, 418 Mass. at 537 n.8

(defendant's consciousness of guilt supported by "ample

evidence, other than the defendant's failure to go to police, of

the defendant's flight and concealment to justify this

instruction").

    Given all of this other evidence, we conclude that the

prosecutor's improper references to the defendant's prearrest

silence would have played little if any role in the jury's

decision to reject the defendant's version of events.

Accordingly, we conclude there was no substantial likelihood of

a miscarriage of justice.

    2.   Prosecutor's statement in closing argument.     During

closing argument, the prosecutor made the following statement:

    "We now know that the defendant had a flurry of blows
    on [the victim's] head, that he was not unconscious
    for a period of time. And according to the defendant,
    he was the one who knocked him out. He was down on
    the ground. He was unconscious. That was the
    defendant's opportunity to flee there. That was his
    time to leave. All he had to do was walk out the door
    of the house. He didn't do that. He chose to stay,
    and he chose to strike [the victim] again and again
                                                                  21


    and again in the head with that hammer. And so [the
    victim] breathes his last breath on the kitchen floor
    . . . ."

Defense counsel did not object to this statement at trial.     The

defendant argues on appeal that the prosecutor mischaracterized

the evidence, and thereby caused a substantial likelihood of a

miscarriage of justice.   See Commonwealth v. Mello, 420 Mass.

375, 379–380 (1995).

    We disagree.   There was ample evidence to support the

prosecutor's statement that the defendant struck the victim with

the hammer again and again, and the defendant admitted as much.

The medical examiner testified that the victim had suffered a

total of nineteen lacerations to his scalp and that the victim's

injuries could have been caused by the hammer identified as the

murder weapon.   Further, given the defendant's admission that

one of the hammer blows he struck rendered the victim

unconscious, the medical examiner's testimony that any of the

lacerations and fractures she found on the victim's head could

have been sufficient to do that, and her testimony that the

victim only had minor scrapes on his hands and no injuries on

his forearms where defensive wounds would be expected, it was

certainly open to the prosecutor to suggest that some of the

hammer blows were struck after the victim had lost

consciousness.   See Commonwealth v. Roy, 464 Mass. 818, 829

(2013) ("In closing argument, '[p]rosecutors are entitled to
                                                                    22


marshal the evidence and suggest inferences that the jury may

draw from it.' . . . Those inferences need only be reasonable

and possible" [citation omitted]).

    The defendant's argument that the prosecutor

mischaracterized the evidence is based on the contention that

the prosecutor was recounting the defendant's testimony about

the altercation with the victim.     This is not a fair

interpretation of the prosecutor's statement, where he cited

only the defendant's admission that he had knocked the victim

out, leaving him on the ground and unconscious.    The prosecutor

was not reciting the defendant's entire story about the fight,

nor was he required to do so.   Citing the defendant's admission

that he had knocked out the victim did not require the

prosecutor to accept the defendant's other testimony that he did

not strike the victim again while the victim was unconscious.

The prosecutor was free to argue to the jury that they could

rely on some of the defendant's admissions without being bound

by all of his testimony.   See Commonwealth v. McInerney, 373

Mass. 136, 142-143 (1977) (jury may accept defendant's

admissions as true while still rejecting his accompanying

exculpatory statements as untrue).

    3.   Jury instructions on lesser included offenses.     As a

general rule, "a defendant is entitled to an instruction on a

lesser included offense of the charged crime, when the facts
                                                                   23


could support the lesser offense."    Commonwealth v. Shelley, 477

Mass. 642, 643 (2017).    Instructing the jury on the lesser

included offense "gives the jury a third option, beyond

acquittal or conviction" on the charged offense, and thus

"mitigates concern that a jury would return a guilty verdict for

the greater crime, even if they believe the prosecution has not

proved each element, because the jury believe that the

defendant's conduct warrants some form of punishment."    Id. at

644.

       The defendant contends that the judge's instructions on the

lesser included offenses to murder in the first degree were

defective because they supposedly failed to make it clear that

murder in the second degree and voluntary manslaughter are

lesser included offenses of murder in the first degree committed

with deliberate premeditation.   The defendant's argument is

premised on two statements in the judge's instructions.   First,

in the course of instructing the jury on murder in the second

degree, the judge said:    "The requirements of proof for murder

in the second degree are the same as for murder in the first

degree with extreme atrocity or cruelty but without the element

that the killing was committed with extreme atrocity or

cruelty."   The judge repeated this statement the next day in the

course of reinstructing the jury in response to their request

for "a definition of the various charges and conditions."
                                                                    24


Second, while reinstructing the jury, the judge also said:     "If

you look at those elements [of manslaughter] and compare it,

say, to the elements of second-degree murder, you'll find that

they are the identical element[s], except in second-degree

murder, the Commonwealth has to prove the absence of mitigating

circumstances."    Because the first statement compared the

elements of murder in the second degree only with the elements

of murder in the first degree committed with extreme atrocity or

cruelty, but not with the elements of murder in the first degree

committed with deliberate premeditation, the defendant contends

that these statements misled the jury into believing that murder

in the second degree and voluntary manslaughter are lesser

included offenses only of murder committed with extreme atrocity

or cruelty, but not of murder committed with deliberate

premeditation.    Consequently, the defendant argues that the jury

were not given the option of finding the defendant guilty of

murder in the second degree or voluntary manslaughter as lesser

included offenses of murder in the first degree committed with

deliberate premeditation.

    We conclude that there was no error in the judge's

instructions.     As an initial matter, both of the statements by

the judge are legally correct, as the defendant concedes.     The

first statement is taken verbatim from the instruction on murder

in the second degree contained in the Model Jury Instructions on
                                                                   25


Homicide at 58 (2013).   It properly states that the elements of

murder in the second degree are the same as for murder in the

first degree with extreme atrocity or cruelty, except that the

former lacks the element of extreme atrocity or cruelty.     See

id. at 43 (instruction for murder in the first degree with

extreme atrocity or cruelty).   Likewise, the second statement is

correct because "[a] killing that would otherwise be murder in

the . . . second degree is reduced to the lesser offense of

voluntary manslaughter where the Commonwealth has failed to

prove that there were no mitigating circumstances."   Id. at 64.

    Furthermore, considered in their entirety and as a whole,

the judge's instructions plainly informed the jury they could

consider murder in the second degree and voluntary manslaughter

as lesser included offenses of murder in the first degree with

deliberate premeditation.   See Commonwealth v. Bois, 476 Mass.

15, 26 (2016), quoting Commonwealth v. Young, 461 Mass. 198, 207

(2012) ("When reviewing jury instructions, '[w]e evaluate the

instruction as a whole, looking for the interpretation a

reasonable juror would place on the judge's words.' . . .     We do

not consider bits and pieces of the instruction in isolation").

    The verdict slip clearly listed "Guilty of the lesser

included offense of Murder in the Second Degree" and "Guilty of

the lesser included offense of Manslaughter" as options for the

jury to consider, following the options of not guilty, and
                                                                 26


guilty of murder in the first degree on each of the three

theories (deliberate premeditation, extreme atrocity or cruelty,

and felony-murder).12   Moreover, when the judge described the

verdict slip to the jury at the outset of his instructions on

homicide, he specifically identified murder in the second degree

and manslaughter as lesser included offenses of murder in the

first degree under the theories of both deliberate premeditation

and extreme atrocity or cruelty.   Given this context, it was

sufficiently clear to the jurors that they could consider murder

in the second degree and manslaughter as lesser included

alternatives to murder in the first degree with deliberate

premeditation.

     4.   Review under G. L. c. 278, § 33E.   We have reviewed the

entire record pursuant to our obligation under G. L. c. 278,

§ 33E, and conclude that there are no grounds for reversing the

defendant's convictions or for granting any other relief.


     12Insofar as the judge's instruction and the verdict slip
suggested that "traditional" murder in the second degree was a
lesser included offense of felony-murder in the first degree,
the defendant received an instruction beyond what he was
entitled to receive, because at the time of trial murder in the
second degree based on malice was not a lesser included offense
of felony-murder in the first degree. See Commonwealth v. Bell,
460 Mass. 294, 307 n.19 (2011) (distinguishing between
"'traditional' murder in the second degree based on malice, and
felony-murder in the second degree based on a felony not
punishable by life imprisonment"). But see Commonwealth v.
Brown, 477 Mass. 805, 807 (2017) (in trials commencing after
date of opinion, defendant may not be convicted of felony-murder
without proof of one of the three prongs of malice).
                      27


Judgments affirmed.
