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SJC-08772

                COMMONWEALTH   vs.   NICHOLAS R. COLTON.



            Middlesex.    December 9, 2016. - May 4, 2017.

       Present:     Gants, C.J., Lenk, Hines, & Gaziano, JJ.


Homicide. Constitutional Law, Admissions and confessions,
     Voluntariness of statement, Sentence. Evidence, Admissions
     and confessions, Voluntariness of statement, Joint
     enterprise, Prior misconduct, Intoxication. Joint
     Enterprise. Intoxication. Mental Impairment. Jury and
     Jurors. Practice, Criminal, Capital case, Motion to
     suppress, Admissions and confessions, Voluntariness of
     statement, Instructions to jury, Jury and jurors,
     Empanelment of jury, Argument by prosecutor, Sentence.



     Indictment found and returned in the Superior Court
Department on September 10, 1998.

     A pretrial motion to suppress evidence was heard by Charles
T. Spurlock, J., and the case was tried before Paul A. Chernoff,
J.


     Michael J. Traft for the defendant.
     Casey E. Silvia, Assistant District Attorney, for the
Commonwealth.


    LENK, J.      In December, 2000, the defendant was convicted of

murder in the first degree on theories of extreme atrocity or
                                                                       2


cruelty and deliberate premeditation in the August, 1998,

stabbing death of his cousin, Robert McDonald.       At the time of

the killing, the defendant was twenty-one years old.       On appeal,

the defendant argues that a statement he made to police was not

voluntary and should not have been admitted at trial.        He also

challenges certain evidentiary rulings, and he argues that there

were errors in the jury instructions and that the judge abused

his discretion in failing to dismiss several jurors for cause.

In addition, the defendant claims that the prosecutor's closing

argument was improper and that his mandatory sentence of life in

prison without the possibility of parole violates the United

States Constitution and the Massachusetts Declaration of Rights.

Finally, the defendant seeks extraordinary relief pursuant to

G. L. c. 278, § 33E.

    Having carefully reviewed the entire record, we discern no

error warranting reversal, nor any reason to exercise our

authority under G. L. c. 278, § 33E, to reduce the verdict or

order a new trial.     We therefore affirm the defendant's

conviction.

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

could have found, reserving certain details for later

discussion.
                                                                    3


     i.   Day of the stabbing.   The victim and the defendant had

grown up together and had continued their friendship as adults.1

On the evening of August 15, 1998, the defendant and his friends

Mark Heymann and Kenneth Scott Cronin picked up the victim at

his cousin's house in Newton.2

     The four then drove to a liquor store near Pettee Square in

Newton, where the defendant purchased a "30-pack" of Budweiser

beer and a two-liter bottle of Bacardi Limon.    They joined a

larger group of people who were drinking beer at a nearby park.

Although the defendant remained fairly sober, the victim soon

became highly intoxicated.   The defendant told several people

that he was angry with the victim and that he intended to beat

him up.   One of those individuals responded that the defendant

"should be a man about it and wait till the next day and . . .

settle it one-on-one straight, [and] not do it while . . .

everybody's drunk."   The defendant responded that he probably

would follow that advice.


     1
       Approximately three years earlier, the defendant and the
victim had gotten into a dispute because the defendant suspected
that the victim was involved with the defendant's girl friend,
but thereafter they seemed to have returned to their former
"good" friendship.
     2
       The victim was working in New Hampshire for the summer but
was in Newton visiting his cousin, Donna D'Angelo, for the
weekend. Her husband, Richard D'Angelo, who was also the
defendant's uncle, went outside to greet the defendant and his
friends as they pulled up. At that point, the defendant
appeared to be sober.
                                                                      4


     Later in the evening, the group of people at the park began

to disperse.     At some point, Cronin left.   Around 10:30 P.M.,

the defendant, the victim, and Heymann left in Heymann's

vehicle, a blue Oldsmobile Cutlass.     The group arrived at around

11 P.M. at the defendant's mother's house in Newton, where the

defendant was then living and where he kept a collection of

knives.3   The three men thereafter headed to Minute Man National

Historical Park in Lincoln, approximately thirteen miles away.

At some point during the drive, Heymann pulled the vehicle over

into a parking lot.     The defendant then attacked the victim with

a knife.   Defensive wounds on the victim's hands and wrists

demonstrate that he attempted to fend off the attack.

Bloodstains on the tops of his feet and in the area surrounding

the vehicle suggest that he got out of the vehicle during the

attack.    Ultimately, the victim was stabbed eighty-six times,

both inside and outside the vehicle, including at least once

after he died.     The victim's body was then dragged across a

hiking trail in the park and left in the woods.

     ii.   The investigation.    The next day, August 16, 1998, two

hikers walking on the trail found the body approximately twenty-

five feet from the trail, and contacted a park ranger, who

     3
       The defendant's next door neighbor saw Heymann's motor
vehicle pull up in front of her house and heard someone get out
and begin vomiting in the street. She attempted to call 911 but
in the time it took her to disconnect the Internet from her
telephone line, the vehicle pulled away.
                                                                    5


notified police.   Police made casts of tire tracks at the scene

and of footprints found near the victim.   The following day,

shortly after a conversation with the victim's father, State

police Troopers Owen Boyle and David Burke went to the home of

the defendant's uncle, Richard D'Angelo, and, after one-half

hour of conversation with him, went to the defendant's mother's

house.   They found Heymann sitting in the driver's seat of his

vehicle, parked in the driveway.   One of the officers walked

over and spoke with Heymann, who remained in his vehicle.

     When the defendant walked out of the house, Boyle asked him

about the victim's whereabouts shortly before his death.    The

defendant said that he had last seen the victim on the night of

August 15, 1998, when he and two other friends had picked up the

victim on their way to Pettee Square to drink beer with a group

of friends.   He said that, at some point, Heymann had driven the

victim to the Eliot Street Massachusetts Bay Transportation

Authority (MBTA) station so that the victim could go to Chelsea

to purchase "crack" cocaine from someone named "EJ."4   When the

trooper told the defendant that the victim had been found dead

in Lincoln, the defendant became "upset" and "emotional."     He

took off his sunglasses, threw them to the ground, and sat down

on the front steps, "cradl[ing] his head in his hands" for some


     4
       Police later identified EJ and learned that he had been
incarcerated at that time.
                                                                   6


time.    When Boyle asked for more information, the defendant

stated that he was done talking to him and would not respond to

any additional questions.    At that point, Boyle went to speak

with Heymann, whose account of the evening was essentially the

same as the defendant's.     The defendant and Heymann also gave

their friend Cronin a similar account when he asked what had

taken place after the defendant, Heymann, and the victim left

the party.

    Investigators also spoke with others who had been at the

party.   One partygoer, Matthew Bosselman, said that, earlier on

the day of the killing, he had seen the defendant take an

aluminum bat from Heymann's vehicle and hide it by the railway

tracks near Pettee Square.    Bosselman reported that the

defendant had said he was angry with the victim and intended to

beat him up.   Police later discovered an aluminum baseball bat

in a shack near the railroad tracks, which Bosselman identified

at trial.

    Police then went to Heymann's house to examine the tires on

his vehicle.   When they arrived, they found the vehicle in the

driveway with a number of cleaning products on its roof.     The

vehicle was impounded for analysis.    There were numerous

bloodstains on the back seat; all of the blood matched that of

the victim.    There was a fingerprint smeared in the victim's

blood near the switch on the interior dome light.    The
                                                                     7


fingerprint belonged to Heymann.    The tire treads on the vehicle

matched tire imprints found near the hiking trail where the

victim had been dragged.

    Soon thereafter, police learned that the defendant and a

man fitting Heymann's description had gone to a junkyard to

purchase parts from the interior of a vehicle similar to

Heymann's Oldsmobile Cutlass.   They were unable to purchase the

parts, and were asked to leave because the vehicle they had been

examining, without permission, was in a restricted area of the

yard.   After learning of the visit to the junkyard, police

decided to speak to the defendant.   In an effort to locate him,

they spoke with D'Angelo, who arranged for the defendant to go

to Pettee Square, where Boyle and two other officers were

waiting.   The defendant agreed to go to the Newton police

station for questioning, and was brought there in a police

cruiser.   D'Angelo followed in his own vehicle.   The officers

took the defendant to an interview room.    Boyle observed that he

appeared to be steady on his feet, did not smell of alcohol, and

did not appear to be intoxicated.

    Boyle read the defendant the Miranda rights from a

preprinted card.   The defendant signed the card indicating that

he understood each of the rights and agreed to waive his rights

and speak to police.   He repeated the account that he had given

two days earlier, stating that he had last seen the victim
                                                                        8


walking to the Eliot Street MBTA station on his way to purchase

crack cocaine.    Boyle then said that he "had some information

that led [him] to believe that [the defendant] was not

telling . . . the truth about what had happened" that night.       He

told the defendant that he had reason to believe the defendant

had been in the area of Pettee Square with a baseball bat

earlier that day, and that the victim had been with the

defendant and Heymann later than they had suggested.     Boyle also

said that the tire treads on Heymann's vehicle matched those

found near the location where the victim's body had been

discovered.   At that point, the defendant asked if he could

speak with Boyle alone.

    After the other officers left the room, the defendant asked

Boyle if he needed a lawyer.    Boyle responded that he could not

decide for the defendant but added that, if the defendant

thought it would be helpful, he could consult with his uncle

D'Angelo, who was downstairs.    The defendant assented.   Boyle

brought D'Angelo to the interview room and left the two alone.

The substance of the conversation that followed is disputed, but

it appears that, at some point, the Federal death penalty was

discussed.    After about ten minutes, D'Angelo opened the door

and told Boyle that the defendant wanted to cooperate with

police.   D'Angelo commented that the defendant was concerned
                                                                   9


about the possibility of the Federal death penalty;5 Boyle told

the defendant that, as this was a State matter, the death

penalty could not be imposed.

     The defendant then provided a different account of events

on the night of the victim's death.6   The defendant said that he,

Heymann, and the victim had driven around for a while after

leaving Pettee Square, with no particular destination in mind.

At some point, Heymann pulled over and left the vehicle to

relieve himself.   While Heymann was away from the vehicle, the

defendant said that the victim attacked him with a knife, and

that he killed the victim in self-defense.    He said that Heymann

had no involvement in the killing, but did not remember whether

he had assisted in moving the body.    He remembered that he and

Heymann had disposed of their bloody clothing in a Dumpster near

Newton South High School, and he had thrown the knife in the

Charles River.   When Boyle asked the defendant why he had been

seen in the area of Pettee Square with a baseball bat earlier

that day, the defendant responded, "I don't know, maybe I was

trying to be a tough guy, I don't know."

     The defendant then agreed to have his statement audio

recorded.   His recorded statement was similar in most respects,

     5
       Minute Man National Historical Park, where the victim's
body was found, is Federally owned land.
     6
       D'Angelo sat next to the defendant throughout both the
unrecorded and the recorded statements.
                                                                     10


with a few exceptions.     The defendant said that he could not

recall the baseball bat and that he had been very drunk and had

"kind of blacked out" after the victim pulled a knife on him.

The defendant also noted that he had drunk two alcoholic

beverages before speaking with police, and that he had taken a

Klonopin pill at approximately the same time.     At that point,

Boyle asked the defendant whether he understood what Boyle was

saying and whether he was comfortable speaking with Boyle.        The

defendant responded affirmatively.    At the conclusion of the

interview, the defendant was arrested.     He then led officers to

the bridge where he had disposed of the knife.     The following

morning, a State police dive team retrieved a knife in a sheath

from the water beneath the bridge.    The knife contained no

fingerprints.7   Police also recovered two knives from the

defendant's mother's house.

     b.   Trial proceedings.   The defendant filed a motion in

limine to suppress his statement at the police station, arguing

that it had not been voluntary because of his unstable mental

condition and the coercive presence of his uncle, D'Angelo.

After an evidentiary hearing at which Boyle, D'Angelo, another

police officer, and a defense expert testified, a Superior Court

judge denied the motion.    The judge found that the defendant's

     7
       The officer who conducted the fingerprint testing on the
knife testified at trial that the knife's submersion in water
could have dissolved any fingerprints on it.
                                                                  11


"Miranda waiver was voluntary and that his statement[] to law

enforcement officials and to others [was] voluntary beyond a

reasonable doubt."   The defendant sought reconsideration,

proffering testimony by a psychiatrist with new information on

his mental impairment.   After an evidentiary hearing, a

different motion judge denied that motion.8

     At trial, the defendant did not dispute that he had stabbed

the victim.   Rather, the theory of the defense was that the

defendant had lacked the substantial capacity to conform his

behavior to the requirements of the law, and thus was not

criminally responsible for the killing.   The defense also argued

that, at the time of the stabbing, the defendant had lacked the

capacity for premeditation.   Two expert witnesses testified that

the defendant suffered from "intermittent explosive disorder,"

temporal lobe epilepsy, and a number of other mental conditions

that prevented him from conforming his behavior to the law.    The

prosecution presented its own expert, who testified that the

defendant suffered from antisocial personality disorder, and

that he was criminally responsible for the killing.   The jury

convicted the defendant of murder in the first degree on



     8
       In his decision, the judge stated that, after listening to
the audio recording of the interview, he determined that the
defendant sounded lucid, "alert and coherent." He also noted
that the "record is absent of any evidence of coercive behavior
of D'Angelo towards the defendant."
                                                                  12


theories of extreme atrocity or cruelty and deliberate

premeditation.

    2.   Discussion.   On appeal,9 the defendant argues that

(1) his motion to suppress should have been allowed; (2) the

judge improperly permitted the jury to consider the theory of

joint venture; (3) the judge erred in allowing admission of the

baseball bat found near Pettee Square and two knives found in

the defendant's mother's house; (4) the jury instructions on the

relationship between voluntary consumption of alcohol and other

intoxicants and criminal responsibility were erroneous; (5) four

jurors should have been struck for cause; (6) portions of the

prosecutor's closing argument were improper; (7) the mandatory

sentence of life without parole violates the defendant's right

against cruel and unusual punishment under the United States

Constitution and the Massachusetts Declaration of Rights; and

(8) this court should exercise its authority to grant relief

pursuant to G. L. c. 278, § 33E.

    a.   Motion to suppress.   The defendant argues that the

statement he made to police after speaking with his uncle

D'Angelo, in which the defendant admitted that he killed the

victim, should have been suppressed.   He contends that the

    9
       The record does not make clear why the defendant's direct
appeal has taken sixteen years to reach this court. As we have
noted previously, "a delay of this length can pose significant
difficulties." Commonwealth v. Celester, 473 Mass. 553, 560 n.8
(2016).
                                                                      13


statement was not voluntarily made, as his will was overborne

due to his limited emotional and intellectual capacity, along

with coercion by his uncle.     In "reviewing a ruling on a motion

to suppress, we accept the judge's subsidiary findings of fact

absent clear error, 'but conduct an independent review of [the

judge's] ultimate findings and conclusions of law'" (citation

omitted).    Commonwealth v. Libby, 472 Mass. 37, 40 (2015).

    It is axiomatic "that a confession or an admission is

admissible in evidence only if it is made voluntarily."

Commonwealth v. Tremblay, 460 Mass. 199, 206 (2011).     A

statement is voluntary when it is "the product of a 'rational

intellect' and a 'free will,' and not induced by physical or

psychological coercion" (citation omitted).     Id. at 207.     The

appropriate inquiry concerns whether, "in light of the totality

of the circumstances surrounding the making of the statement,

the will of the defendant was overborne to the extent that the

statement was not the result of a free and voluntary act."

Commonwealth v. Selby, 420 Mass. 656, 663 (1995).     Factors that

may be considered in assessing whether a defendant's will was

overborne include, inter alia, "promises or other inducements,

conduct of the defendant, the defendant's age, education,

intelligence and emotional stability . . . and the details of

the interrogation."     Commonwealth v. Mandile, 397 Mass. 410, 413

(1986).     The Commonwealth bears the burden of establishing
                                                                   14


"beyond a reasonable doubt that the defendant's confession was

voluntary."   Commonwealth v. Monroe, 472 Mass. 461, 468 (2015).

     In this case, we discern no reason to disturb the findings

of the two motion judges who denied the defendant's motion to

suppress and denied reconsideration of that motion.   The

defendant's assertion that he was emotionally and intellectually

incapable of voluntarily making his statement to police is not

supported by the evidence.   Both judges determined, after

listening to the audio recording of the defendant's interview

with police, that he appeared to understand his circumstances

and that he sounded lucid and coherent.   Nothing in the audio

recording of the defendant's interview suggests otherwise.10

During the interview, Boyle twice asked the defendant if he was

comfortable with the proceedings and could understand the

questions he was being asked.   Both times, the defendant

answered affirmatively.   He then provided an exculpatory

explanation of the killing, "indicating an awareness of the

consequences of waiving his rights and speaking to the police."

Commonwealth v. Beland, 436 Mass. 273, 281 (2002).

     The defendant's contention that his uncle D'Angelo coerced

him into making the statement is similarly unavailing.      To

     10
       Where a judge bases a legal conclusion on facts found in
a recording, we are in the same position as the judge in
reviewing that recording, and take an independent view of its
significance, without deference. See Commonwealth v. Clarke,
461 Mass. 336, 341 (2012), and cases cited.
                                                                   15


begin, the defendant relies on a line of cases involving a

statutory right provided to juveniles to consult with an

interested adult before waiving their Miranda rights.   See,

e.g., Commonwealth v. Smith, 471 Mass. 161, 162 (2015).     We have

concluded that, in some circumstances, the presence of a so-

called "interested adult" may be psychologically coercive to the

extent that it affects the voluntariness of a juvenile's

statement.   See Commonwealth v. Adams, 416 Mass. 55, 61 (1993).

It was undisputed that, for much of his life, the defendant's

uncle D'Angelo had served as a father figure.   The concerns

regarding any coercive pressure from an interested adult,

however, are inapplicable to the defendant, who was twenty-one

years old at the time of his statement.

    In addition, the record does not support the defendant's

contention that D'Angelo coerced him such that his statement to

police was involuntary.   The defendant's argument in this regard

is based on his own affidavit, in which he said that D'Angelo

had pressured him to cooperate with police and tell them

everything he knew, and told him that he could face a Federal

death penalty if he did not.   He stated in the affidavit that

D'Angelo had repeated the threat of the death penalty many times

while they were alone in the interview room, and also that

D'Angelo, who was sitting next to the defendant, "continually

prodded" him during the interview, and told the defendant that
                                                                    16


he "needed to keep speaking and provide all the information

[that he] had about" the case.    The transcript of the interview

does not reflect any statement by D'Angelo.11

     Moreover, the defendant's account is inconsistent with

D'Angelo's testimony at the first suppression hearing.   D'Angelo

testified that he did not coerce the defendant and, to the

contrary, suggested that the defendant might want a lawyer.     The

first motion judge deemed D'Angelo's testimony credible.     See

Tremblay, 460 Mass. at 205 ("[q]uestions of credibility" are

left to "motion judge who had the opportunity to observe the

witnesses").    In addition, both Boyle and D'Angelo testified at

the first evidentiary hearing that D'Angelo asked them about the

potential of the Federal death penalty in the presence of the

defendant, and that Boyle replied that it was not a possibility

in this case.   The defendant did not dispute the account, where

any potentially coercive impact of the specter of the death

penalty had been ameliorated before the defendant made his

statement.   Furthermore, when the defendant made his statement

to police, he showed no signs of intoxication, and answered the

officers' questions readily, while responding affirmatively when

asked whether he understood what he was saying.



     11
       The quality of the audio recording, however, does not
allow us to discern the nature of various ambient background
noises during the interview.
                                                                     17


     In sum, we cannot conclude that the two motion judges, who

each conducted evidentiary hearings, and considered, separately,

the conduct of the defendant's interview with police and the

defendant's acknowledged mental conditions, abused their

discretion in denying the defendant's motion to suppress and his

request for reconsideration of that motion.

     b.   Instruction on joint venture.     The defendant contends

that, given the insufficiency of the evidence as to a joint

venture between himself and Heymann,12 the trial judge erred in

instructing the jury on joint venture.      As there was no

objection to the instruction, we review for a substantial

likelihood of a miscarriage of justice.      Commonwealth v.

Randolph, 438 Mass. 290, 294 (2002).      Because the evidence

supported the judge's instruction, we discern no error.

     An instruction "is proper if it is supported by any

hypothesis of the evidence."   Commonwealth v. Silanskas, 433

Mass. 678, 689 (2001).   To establish a joint venture, the

Commonwealth must prove beyond a reasonable doubt that the

defendant "knowingly participated in the commission of the crime

charged, alone or with others, with the intent required for that

offense."   Commonwealth v. Zanetti, 454 Mass. 449, 466 (2009).


     12
       Heymann was charged separately from the defendant, and
was not a codefendant in this trial. He eventually pleaded
guilty to manslaughter and received a sentence of not less than
nineteen nor more than twenty years of imprisonment.
                                                                   18


Here, there was ample evidence to support the instruction on

joint venture.

    Heymann drove the defendant and the victim, in his own

vehicle, thirteen miles to a secluded wooded area.   Even

assuming that, as the defendant claimed, Heymann was not

involved in the stabbing, he was present at the scene as the

defendant stabbed the victim repeatedly; Heymann's fingerprint,

with the victim's blood on it, was on the vehicle's dome light.

After the victim was left by the two in the woods, Heymann drove

the defendant home.   According to the defendant's own statement,

Heymann assisted in disposing of the bloody clothes and the

knife that had been used in the stabbing.   In the days that

followed, Heymann and the defendant provided the same, false

account of what had taken place that night, including to one of

their joint acquaintances, Cronin.   In addition, Heymann made

several efforts to conceal evidence of the crime, by attempting

to clean the blood from the interior of his vehicle, and by

going with the defendant to obtain replacement parts for those

that had been covered in the victim's blood.   Given this

evidence, and the reasonable hypothesis that could be drawn from

it, the judge's instruction on joint venture was appropriate.

See Silanskas, 433 Mass. at 689.

    c.   Prior bad act evidence.   The defendant claims error in

the admission of a baseball bat and two sheathed knives.
                                                                  19


Bosselman testified that he had seen the defendant conceal a

baseball bat on the day of the victim's death, and the knives in

question were found by police in the defendant's mother's house,

where the defendant was living at the time.   The defendant

argues that these objects were highly prejudicial evidence of

his prior bad acts.

    It is axiomatic that "[e]vidence of prior misconduct is not

generally admissible to prove bad character or a propensity to

commit crimes."   Commonwealth v. Libran, 405 Mass. 634, 640

(1989).   Such evidence is admissible only if relevant for some

other purpose, such as to establish "knowledge, intent, motive,

[or] method, material to proof of the crime charged."

Commonwealth v. Imbruglia, 377 Mass. 682, 695 (1979), quoting

Commonwealth v. Murphy, 282 Mass. 593, 598 (1933).   The

"prosecution [is] entitled to present as full a picture as

possible of the events surrounding the incident itself,"

Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007), as long as

the probative value of the evidence is not "outweighed by the

risk of unfair prejudice to the defendant."   Commonwealth v.

Crayton, 470 Mass. 228, 249 (2014).   The weighing of these

factors is left to the "sound discretion of the judge, whose

decision to admit such evidence will be upheld absent clear

error."   Commonwealth v. Oberle, 476 Mass. 539, 550 (2017),

quoting Robidoux, supra.
                                                                    20


     We discern no error in the admission of the baseball bat,

which was introduced not as evidence of the defendant's bad

character, but to establish the defendant's state of mind and

his intent to harm the victim.   Based on the location where the

bat was found,13 Bosselman's testimony that the defendant had

concealed it, along with testimony from a number of witnesses

concerning the defendant's anger and his stated intent to "beat"

the victim, the jury could have inferred that the defendant had

a plan to harm the victim on the night of his death.     That the

defendant ultimately stabbed the victim rather than hitting him

with the bat does not diminish its relevance in this regard.

     Moreover, the jury could have inferred from the act of

hiding the baseball bat that the defendant did not, as his

expert witnesses testified, simply "snap" and assault the victim

but, rather, had planned in advance to harm him.   See

Commonwealth v. Philbrook, 475 Mass. 20, 27-28 (2016).     The

probative value of the baseball bat to the Commonwealth's case

outweighed any potential prejudice to the defendant.     See id.

Without the admission of the baseball bat and its corroboration

of Bosselman's testimony, "the killing could have appeared to

the jury as an essentially inexplicable act of violence."     See

Commonwealth v. Bradshaw, 385 Mass. 244, 269 (1982).


     13
       The police found the bat hidden near train tracks close
to where the gathering had taken place in Pettee Square.
                                                                   21


     The knives recovered from the defendant's mother's house

were admissible as weapons potentially used to stab the victim.

Although the defendant told police that the knife found in the

Charles River was the weapon used in the stabbing, it contained

no fingerprints, and thus was not necessarily the murder weapon.

The Commonwealth's medical examiner testified at trial that, due

to the "variable" nature of the wounds, the precise length and

width of the blade used to kill the victim could not be

determined.14   There was also evidence that the defendant

returned home after the killing and thereby had an opportunity

to store the murder weapon there.   Accordingly, the knives

properly were admitted not as bad act propensity evidence, but

were properly admitted as the means by which the defendant may

have stabbed the victim.   See Commonwealth v. Ashman, 430 Mass.

736, 743-744 (2000) ("Evidence that a defendant possessed a

weapon that could have been used to commit a crime is relevant

to prove that the defendant had the means of committing the

crime"); Commonwealth v. James, 424 Mass. 770, 779-780 (1997)

(knives found at defendants' residences relevant to show they

had means of committing murders, even without direct proof that

those particular knives were used in commission of offense).




     14
       One of the knives was larger than the other, and both
were sheathed.
                                                                    22


    Moreover, the knives were relevant to the Commonwealth's

theory of deliberate premeditation.    Cronin testified at trial

that he had not seen the defendant carrying a knife at the

gathering in Pettee Square.   He also testified that the

defendant had a collection of knives at his house.    The

Commonwealth presented evidence at trial, largely through the

testimony of the defendant's neighbor, that the defendant

returned home briefly after the gathering in Pettee Square and

before taking the victim to Minute Man National Historical Park.

Based on this evidence, the Commonwealth argued that the

defendant had returned to his mother's house to retrieve a

knife.    The knives were relevant to corroborate Cronin's

testimony concerning the existence of the defendant's knife

collection and to support the Commonwealth's suggested inference

that the defendant returned to his home after the gathering in

Pettee Square in order to get a knife he planned to use on the

victim.

    In sum, there was no abuse of discretion in the decision to

allow the admission of the baseball bat and the knives.

    d.    Instruction on criminal responsibility.   The defendant

argues that the instruction concerning the relationship between

the voluntary consumption of drugs or alcohol and the question

of criminal responsibility did not conform to the instructions

provided in Commonwealth v. Berry, 457 Mass. 602, 617–618 & n.9
                                                                  23


(2010), S.C., 466 Mass. 763 (2014), and revised in Commonwealth

v. DiPadova, 460 Mass. 424, 439 (2011) (Appendix), and thereby

created a substantial risk of a miscarriage of justice.15   In

particular, the defendant argues that the judge's instruction in

this case was flawed insofar as it could have caused the jury to

discount the defendant's mental incapacity defense solely

because he had consumed alcohol and drugs on the night of the




     15
          The judge instructed:

          "The issue has been raised that the defendant may not
     have been criminally responsible for his alleged actions
     due to use of drugs or alcohol, or at least in part.
     Voluntary intoxication with drugs or alcohol is not by
     itself a mental disease or defect that will support a
     verdict of not guilty by reason of insanity. The normal
     consequences of drug and alcohol addiction are not a basis
     for relieving a defendant of criminal responsibility.
     However, there may be situations where a defendant who is
     addicted to drugs or alcohol might have the defense of lack
     of criminal responsibility available to him. You may
     consider whether the defendant had a mental disease or
     defect apart from his drug or alcohol addiction such that
     he lacked substantial capacity at the time of his crime to
     conform his conduct to the requirements of law. In
     addition, you may consider whether the defendant's
     voluntary consumption of drugs or alcohol activated a
     latent mental disease or defect apart from the addiction
     itself. If as a result of the activation of that latent
     mental disease or defect the defendant lost the substantial
     capacity to understand the wrongfulness of his conduct or
     to conform his conduct to the requirements of the law, the
     defendant would lack criminal responsibility. However, if
     the defendant knew or subjectively had reason to know under
     the circumstances that his use of drugs or alcohol would
     activate the mental disease or defect, he may not rely on
     that disease or defect to assert a lack of criminal
     responsibility."
                                                                   24


victim's death, and had some recognition that doing so could

impact his behavior.

    Although Berry and DiPadova were decided a decade after the

defendant's trial, "he is entitled to the benefit of changes in

decisional law that are announced after trial and pending his

direct review."   Commonwealth v. Johnston, 467 Mass. 674, 704

(2014).    Because there was no objection to the instruction at

trial, we review to determine if the instruction created a

substantial likelihood of a miscarriage of justice.     Id.

    Although the language of the judge's instruction did not

precisely match the wording of the model instructions

subsequently set out in Berry and DiPadova, there is no merit to

the defendant's contention that such a difference was meaningful

to the jury's finding.    The concern animating our decisions in

Berry and DiPadova was that a jury might conclude

"erroneously . . . that even if the defendant's mental illness

by itself caused him to lack substantial capacity, 'because [he]

had consumed [drugs] that contributed to [his] incapacity, that

would render the lack of criminal responsibility defense moot.'"

DiPadova, 460 Mass. at 436, quoting Berry, 457 Mass. at 418.

The instruction given here, however, raises no such cause for

concern.

    The judge instructed that the jury should "consider whether

the defendant had a mental disease or defect apart from his drug
                                                                     25


or alcohol addiction such that he lacked substantial capacity at

the time of his crime to conform his conduct to the requirements

of law."   This language mirrors our model instructions in Berry

and DiPadova.   Compare DiPadova, 460 Mass. at 439 ("where a

defendant . . . has a mental disease or defect that itself

causes him to lack the substantial capacity . . . , he is not

criminally responsible for his conduct regardless of whether he

uses or does not use alcohol or drugs").    The judge's

instruction did not provide any leeway for the jury to find both

that the defendant was criminally responsible because of his

alcohol and drug consumption and that his mental defect or

disease alone caused him to lack substantial capacity to conform

his conduct to legal requirements.     We note in this regard that

none of the evidence presented at trial suggested that the

defendant knew or should have known that the consumption of

alcohol or drugs would aggravate his preexisting mental

condition.   The evidence before the jury was to the contrary,

instead suggesting that the defendant used these substances in

an attempt to treat his multiple mental difficulties.16

     e.    Jury empanelment.   The defendant contends that the

judge erred in not striking four jurors for cause.    One

potential juror had impending travel plans, another initially


     16
       One of the defense experts testified that the defendant
used "drugs and alcohol" to "medicate himself."
                                                                    26


noted an ambivalence toward a defense of a lack of criminal

responsibility, and two had family connections to law

enforcement officers.

    The first juror said during voir dire on November 28, 2000,

that he had airplane tickets for December 14, 2000.   The judge

empanelled the juror after telling him that the trial likely

would conclude by the time of the flight.    That forecast proved

wrong and, when trial had not concluded by December 14, the

deliberating juror was excused and replaced with an alternate.

"Although judges must exercise caution in discharging a

deliberating juror, . . . the judge has discretion to decide

whether a juror is unable to perform his or her functions, . . .

and whether good cause, personal to the juror, exists for

dismissal" (citations omitted).    Commonwealth v. Sanders, 451

Mass. 290, 306 (2008).   Although it is doubtless better practice

to avoid empanelling jurors with travel plans that are very

close to the anticipated end of the trial, see id. at 307 n.16,

we cannot say on this record that the judge abused his

discretion by empanelling and later discharging the juror due to

the juror's impending flight.    See id. at 306-307 (judge did not

abuse her discretion by discharging juror who had nonrefundable

airplane tickets).

    The defendant also challenges the judge's decision to

empanel the alternate juror.    The alternate juror initially
                                                                   27


responded during voir dire that he had a "hard time with [the]

concept of" the "defense of a lack of criminal responsibility."

The judge then explained the operative law further and asked

whether the juror "could be fair both to the defendant and the

Government in this case."    The juror responded, "Yes, I think

so."    Although trial counsel did not object to the empanelment

of the juror on these grounds, the defendant argues on appeal

that the juror's response was ambiguous and that the judge

should have explored the juror's concerns further before

deciding whether to empanel him.

       As a general principle, it is an abuse of discretion to

empanel a juror who will not state unequivocally that he or she

will be impartial.    See Commonwealth v. Long, 419 Mass. 798, 804

(1995) (trial judge abused discretion in empanelling juror who

could not unequivocally state that he would be impartial);

Commonwealth v. Somers, 44 Mass. App. Ct. 920, 921-922 (1998)

(same).    Because the juror's subsequent response here fairly

could be viewed as unequivocal, and the judge apparently

credited it as such, we discern no abuse of discretion in the

empaneling of the juror.    Contrast Long, supra (juror's response

to question concerning whether he could be fair to defendant

that, "I would really hope that I could be," not unequivocal).

       The defendant contends also that the judge erred in

empanelling two jurors who had family connections -- uncles, a
                                                                  28


brother, and a cousin -- to law enforcement.    The judge credited

their representations that such connections would not affect

their ability to be impartial.   That a juror has family members

who work in law enforcement does not, without more, mean that

the juror is incapable of being impartial.     See Commonwealth v.

Ascolillo, 405 Mass. 456, 460-461 (1989), and cases cited.

Given that the defendant points to no other basis for potential

bias, the judge's decision to empanel these jurors was not an

abuse of discretion.

    f.   Prosecutor's closing argument.   The defendant contends

that the prosecutor's closing argument was improper because she

referred to an incident described in the defendant's medical

records, which had been introduced by the defendant, to argue

that the defendant was criminally responsible for the killing.

In her closing, the prosecutor described the defendant's assault

of a staff member at a mental health facility where he had

resided as a juvenile.   She emphasized that the defendant had

said after the assault that he would have been sorry if the

assault had happened to someone else, but that the particular

staff member "deserved it."   Such conduct, the prosecutor

argued, demonstrated that the defendant was "able and capable of

holding a grudge and acting out in revenge," which supported the

Commonwealth's theory that the defendant killed the victim in

revenge for an earlier dalliance with the defendant's girl
                                                                  29


friend rather than due to a mental disease or defect.    The

defendant maintains that the remarks impermissibly used evidence

from his medical records substantively, and that the account of

the incident constituted inadmissible hearsay.   Because there

was no objection at trial, we review for a substantial

likelihood of a miscarriage of justice.   See Commonwealth v.

Johnston, 467 Mass. at 704.

    Although medical records are admissible substantively only

if they bear certain indicia of reliability, see Commonwealth v.

Wall, 469 Mass. 652, 667 (2014), the prosecutor did not use

facts in the medical records as substantive evidence in her

closing.   Rather, she used details of the incident in the

medical record, introduced by the defendant, to refute the

opinion offered by the defendant's expert that the incident

demonstrated the defendant's lack of criminal responsibility.

See Commonwealth v. Dunn, 407 Mass. 798, 809 (1990)

(prosecutor's use of defendant's statements to his doctor in

refutation of defense witness's opinion did not constitute

attempt to turn those statements into substantive evidence).

Moreover, any potential prejudice to the defendant was mitigated

by a comprehensive limiting instruction, given before the

prosecutor's closing, that the jury were to consider any

reference to the defendant's statements to a mental health

assessor only with respect to the mental health assessor's
                                                                  30


evaluation of the defendant's criminal responsibility.    See

Commonwealth v. Donahue, 430 Mass. 710, 717-718 (2000) (judge's

limiting instruction concerning defendant's statements to

psychiatrist cured any potential prejudice).

    g.   Constitutionality of sentence.   The defendant argues

that, given his mental instability at the time of the offense,

sentencing him to life imprisonment without the possibility of

parole constitutes cruel and unusual punishment under the Eighth

Amendment to the United States Constitution and art. 26 of the

Massachusetts Declaration of Rights.   The gravamen of the

defendant's argument is that the same principles underlying the

United States Supreme Court's decision in Miller v. Alabama, 567

U.S. 460, 470 (2012) ("mandatory life-without-parole sentences

for juveniles violate the Eighth Amendment"), and this court's

decision in Diatchenko v. District Attorney for the Suffolk

Dist., 466 Mass. 655, 670-674 (2013), S.C., 471 Mass. 12 (2015)

(holding that imposing sentence of life imprisonment without

possibility of parole on juveniles violates art. 26), suggest

that the defendant's sentence was unconstitutional.

    The analysis in Miller and Diatchenko was limited to

juveniles, and relied on the fact that juveniles, due to their

general immaturity, impulsiveness, and impressionable nature,

are "constitutionally different from adults for purposes of

sentencing."   Miller, 567 U.S. at 471.   Diatchenko, 466 Mass.
                                                                  31


at 660, 663.   This principle is inapplicable to the defendant,

who was twenty-one years old at the time of the offense.    We

decline the defendant's invitation to extend our holding in

Diatchenko in this manner.

    h.   Relief pursuant to G. L. c. 278, § 33E.   Having

carefully reviewed the entire record, we discern no reason to

exercise our power under G. L. c. 278, § 33E, to set aside the

verdict or to reduce the degree of guilt.   Notwithstanding the

defendant's acknowledged history of troubled behaviors as a

child and as a teenager, the weight of the evidence supports the

defendant's conviction of murder in the first degree on theories

of extreme atrocity or cruelty and deliberate premeditation.

                                    Judgment affirmed.
