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SJC-11096

                 COMMONWEALTH   vs.   ROBERT SILVA.



        Plymouth.      February 6, 2015. - June 11, 2015.

   Present:   Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.


Homicide. Robbery. Felony-Murder Rule. Joint Enterprise.
     Search and Seizure, Warrant, Expectation of privacy,
     Clothing. Constitutional Law, Search and seizure, Privacy.
     Malice. Intent. Practice, Criminal, Capital case, Motion
     to suppress, Instructions to jury, Argument by prosecutor,
     Presumptions and burden of proof.



     Indictments found and returned in the Superior Court
Department on March 23, 2007.

     A pretrial motion to suppress evidence was heard by Paul E.
Troy, J., and the cases were tried before Richard J. Chin, J.


     Chauncey B. Wood for the defendant.
     Mary E. Lee, Assistant District Attorney, for the
Commonwealth.


    BOTSFORD, J.    The defendant, Robert Silva, stands convicted

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


cruelty and felony-murder, and also of armed robbery.1      He

appeals the convictions, arguing that (1) his motion to suppress

evidence of his sneakers and evidence derived from blood found

on his sneakers was improperly denied; (2) the trial judge erred

in instructing the jury on the theory of joint venture liability

where the Commonwealth's exclusive argument was that the

defendant was guilty as a principal; (3) the judge also erred in

denying the defendant's request for an instruction on

involuntary manslaughter; and (4) the prosecutor improperly

shifted the burden of proof in her closing argument.       Finally,

the defendant argues that he is entitled to relief under G. L.

c. 278, § 33E.    We affirm the defendant's convictions.

     Background.    1.   Facts.   We summarize the facts that the

jury could have found at trial.2     During the afternoon of June 9,

2004, the defendant and Eric Pimental, both eighteen years old,

were walking together on a path in the woods in Wareham.         They

encountered Thomas Loftus, the victim, who was intoxicated,3 and



     1
       The convictions followed the defendant's second trial
before a jury on these charges; the first trial ended in a
mistrial when the jury could not agree on verdicts.
     2
       Some of the evidence presented at the hearing on the
defendant's motions to suppress, and the judge's findings of
fact based on that evidence, are relevant to the defendant's
appeal. We summarize them later in connection with our
discussion of the claims raised by the defendant.
     3
         The victim's blood alcohol level was .278.
                                                                    3


they agreed that they would "roll" him.4   After Pimental knocked

the victim down to the ground, both Pimental and the defendant

began to kick the victim, and the defendant jumped on the

victim's chest.   The defendant later stated to David Belmore, a

fellow inmate of the Plymouth County correctional facility

(PCCF), "You should have seen [the victim's] eyes bug out when I

jumped on his chest," and that he and Pimental knew the victim

was dead when his eyes ceased to move.5    The two men moved the

victim's body off the path, and the defendant and Pimental took

the victim's backpack, his money, and other items the victim was

carrying on his person.   The defendant ended up carrying

Pimental's camouflage-colored backpack with the victim's black

backpack inside of it; Pimental ended up with the victim's

money.   Before leaving the woods, the defendant and Pimental

encountered Kathy Browne, who was walking on the same path in

the woods with her young son.   They spoke briefly together, and

Browne noticed blood on Pimental's legs.    The defendant and



     4
       There was no evidence that either the defendant or Eric
Pimental knew the victim; in talking to another inmate at the
Plymouth County correctional facility (PCCF) some years later,
the defendant described the victim as "the guy" he and Pimental
encountered on the path.
     5
       David Belmore testified as a witness on behalf of the
Commonwealth at trial. He had entered into a cooperation
agreement with the Commonwealth on April 2, 2010, that was
thoroughly explored by the defendant's counsel in his cross-
examination of the witness.
                                                                     4


Pimental then departed from the woods, separated, and the

defendant went downtown, where he drank whiskey.

     Some hours later, around 6:30 P.M., Thomas Joyce, the chief

of police of Wareham, who was off duty, observed the defendant

trying to open locked vehicles on a street in Onset, a section

of Wareham.    Based on his observations and conversation with the

defendant, Joyce decided to place the defendant in protective

custody because of the level of the defendant's intoxication.6

Joyce opened the camouflage-colored backpack the defendant was

carrying to check for possible weapons, and noted that there was

another backpack inside.7    The defendant and the backpacks were

transported to the Wareham police station, and the police took

custody of the backpacks.    Because the police determined that

     6
         The police had no knowledge of the victim's death at this
time.
     7
         See G. L. c. 111B, § 8, which provides in relevant part:

          "Any person who is incapacitated may be assisted by a
     police officer with or without his consent to his
     residence, to a facility or to a police station. . . .

            ". . .

          "A police officer acting in accordance with the
     provisions of this section may use such force as is
     reasonably necessary to carry out his authorized
     responsibilities. If the police officer reasonably
     believes that his safety or the safety of other persons
     present requires, he may search such person and his
     immediate surroundings, but only to the extent necessary to
     discover and seize any dangerous weapons which may on that
     occasion be used against the officer or other person
     present . . . ."
                                                                     5


the defendant had at least one outstanding warrant, he was not

released at the end of the protective custody period, but taken

to the Wareham Division of the District Court Department

(Wareham District Court) the following morning, June 10, 2004.

Following his court appearance, the defendant remained in

custody pursuant to the outstanding warrant, and was transported

to the PCCF.

    During that same morning, June 10, 2004, the victim's body

was found off the path in the woods where the defendant and

Pimental had encountered Browne the previous afternoon.     In the

early morning hours of the following day, June 11, based on

information supplied by his then girl friend, Pimental was

arrested and charged with the victim's murder.   Later that day,

the defendant's sneakers were seized from the PCCF pursuant to a

search warrant.   DNA testing performed on a sample taken from a

bloodstain on one of the defendant's sneakers revealed that the

sample matched the victim's blood; the likelihood that a random

individual's DNA would match the sample was one in ninety-five

quintillion.   The bloodstain on the defendant's other sneaker

was not sufficient for DNA testing.

    The cause of the victim's death was blunt force trauma to

the chest.   His sternum was broken, and his heart lacerated by

the sternum bone.   His ribs on both sides of his chest were

broken, and he would have been alive when that occurred.     His
                                                                    6


left lung was torn.   The injuries to his chest, heart, and lung

were consistent with being stomped.     The victim's jaw was

fractured, and he also had suffered blunt force trauma to the

head.

     2.   Procedural history.    The defendant was indicted on

charges of murder and armed robbery in 2007.     He filed five

motions to suppress evidence.8    The motions were heard and

decided by a judge in the Superior Court (motion judge) in the

summer of 2009, after an evidentiary hearing.    The motion judge

allowed the motion to suppress statements (fourth motion to

suppress), and allowed in part the first motion to suppress

evidence of the search of the backpacks conducted by the police

chief and an officer of the Wareham police department,

respectively, on June 9, 2004.     The judge otherwise denied the

first motion to suppress, and also denied the remaining motions

(second, third, and fifth motions to suppress).9    After the


     8
       The five motions were: (1) a motion to suppress evidence
obtained from warrantless search of backpacks on June 9, 2004;
(2) a motion to suppress evidence obtained from a warrant search
conducted at PCCF on June 11, 2004; (3) a motion to suppress
evidence obtained from a warrant search conducted at the Wareham
Division of the District Court Department on June 11, 2004; (4)
a motion to suppress the defendant's statements made when
arrested on September 29, 2006; and (5) a motion seeking relief
pursuant to Franks v. Delaware, 438 U.S. 154 (1978).
     9
       On appeal, the defendant challenges the denial of his
motion to suppress evidence of his sneakers (second motion to
suppress), but does not challenge the motion judge's rulings in
any other respect.
                                                                      7


defendant's first trial ended in a mistrial when the jury could

not agree on verdicts, the defendant was retried in January of

2011 before a judge other than the motion judge (trial judge).

The jury found the defendant guilty of murder in the first

degree on the theories of extreme atrocity or cruelty and

felony-murder, and also found him guilty of armed robbery.      He

was sentenced to life imprisonment without parole on the murder

conviction and a concurrent sentence of from four to five years

on the armed robbery conviction.10   The defendant filed a motion

for a new trial that he later withdrew.

     Discussion.   1.   Evidence of the defendant's sneakers.    On

appeal, the defendant asserts error in the motion judge's denial

of his second motion to suppress, which challenged the

constitutionality of the search and seizure of the defendant's

sneakers from the PCCF on June 11, 2004.   As indicated, the

motion judge held an evidentiary hearing on the defendant's

suppression motions as a group in which evidence was presented

pertaining to essentially all of the motions.   In considering

the defendant's arguments here concerning the second motion, we




     10
       Eric Pimental was separately tried and convicted of
murder in the first degree and armed robbery. This court
affirmed his convictions. See Commonwealth v. Pimental, 454
Mass. 475, 476, 485 (2009).
                                                                    8


begin by summarizing the judge's pertinent findings and

rulings.11

     The judge found that the defendant was taken into

protective custody by the Wareham police chief on the evening of

June 9, 2004, taken to the Wareham District Court the following

morning, and then ordered held by a District Court judge on an

outstanding warrant and transported to the PCCF.   After the

victim's body was found on June 10, the medical examiner

determined the same day that the death was a homicide, and had

occurred about twenty-four hours earlier -- around 3:15 P.M. on

the afternoon of June 9.   Police investigation into the homicide

led them to believe that Pimental and the defendant were

involved in the crime, and Pimental was interviewed by the

police on June 11.12   Pimental ultimately told the police that

both he and the defendant had fought with the victim and that

the defendant had hit and kicked the victim, and also described

the clothing the defendant had been wearing.   One of the State

police officers interviewing Pimental, State police Trooper

Robert Dateo, believed the defendant was still wearing the same

clothes when he was transported to the PCCF the previous day,

     11
       The defendant does not appear to dispute the motion
judge's factual findings.
     12
       The motion judge did not make a finding as to when on
June 11, 2004, Pimental was interviewed. It appears to have
been in the very early morning hours of that date. See
Pimental, 454 Mass. at 477 n.1.
                                                                     9


June 10.   Based on the information supplied by Pimental, the

trooper applied for a search warrant to obtain the defendant's

clothes from the PCCF for forensic testing purposes.     The

warrant issued at 6:15 A.M. on June 11.   Captain Scott Berna of

the State police, who was present when the warrant issued, then

telephoned the PCCF and informed Captain Scott Petersen of the

Plymouth County sheriff's department that a warrant to search

for and seize the defendant's property had been secured and

police would be coming to the facility to execute it.     Petersen

then notified the PCCF property department to get the

defendant's property together, and correctional officers went to

the unit where the defendant was housed and secured his

sneakers.13

     At the PCCF, a detainee is issued prison clothing and his

own clothing is put into a property bag and stored until it is

either picked up by the detainee's family or mailed elsewhere at

the detainee's expense.   The clothing must be removed from the

PCCF within thirty days of the detainee's arrival.     A detainee,

however, may be, and often is, permitted to keep his or her

footwear, and specifically sneakers, because the prison-issue

sneakers are not of good quality and would not fit as well.     But

keeping the sneakers is a privilege, and they may be taken from

     13
       There was no evidence presented as to the precise
location of the defendant's sneakers in the unit at the time
they were seized.
                                                                  10


a detainee at any time.14   When police seize a detainee's

property from the PCCF pursuant to a search warrant, they

generally do not give the detainee notice or provide him with a

copy of the warrant unless it is a warrant to take a buccal

swab.15

     In this case, after the search warrant issued, Berna drove

to the PCCF to retrieve the defendant's property at some point

during the morning of June 11, 2004.   He met a correction

officer in the facility's lobby; the officer gave him the bag

containing the defendant's clothes, including the defendant's

sneakers, and Berna gave the officer a copy of the search


     14
       Introduced in evidence at the hearing on the motion to
suppress was the PCCF "property seizure receipt" for the
defendant's clothing. The receipt, which is signed by the
defendant, states that "[a]ll items except court clothes,
glasses, hearing aids and approved prosthetic devices will be
considered contraband." The receipt then lists the items of
clothing the defendant brought or was wearing, including a
shirt, two shorts, and "1 sneakers." The receipt has an
asterisk typed on it on the line listing the sneakers. Captain
Scott Petersen of the Plymouth County sheriff's department
testified the asterisk meant that the defendant was entitled to
keep his sneakers, although doing so was a privilege, and the
sneakers could be taken from him at any time.
     15
       Petersen testified to this point. He also stated more
generally that when the inmate is present at the time property
is seized, a copy of the warrant is given to the inmate, "[a]nd,
say, the individual, in this particular case, was Mr. Silva, had
the sneakers on his person and they were going to be executing
the search warrant, we would provide him a copy as we take the
sneakers away from him because he's physically there and
physically present." As indicated in the text, infra, there is
no indication in the record that the defendant was given a copy
of the search warrant when his sneakers were seized.
                                                                  11


warrant at the same time.   The copy ultimately was received by

the "legal department."   The defendant was not present when his

property was turned over to the police, and was not provided a

copy of the warrant at that time.   After receiving the bag

containing the defendant's property, Berna took the bag to the

State police barracks, where Dateo, in Berna's presence, opened

it on June 14, 2004, and listed the contents on the search

warrant return.   Dateo then filed the return with the court on

June 17.

     Based on his findings, the motion judge ruled in relevant

part that the defendant was required to establish that he had a

subjective expectation of privacy in his clothing that also was

objectively reasonable, and that given his status as an inmate

at the jail, the defendant could not make the required showing.16

On appeal, the defendant challenges the judge's conclusion.    He

claims that the judge equated the status and rights of a

pretrial detainee with those of a convicted prisoner, and in

doing so failed to recognize that, as a pretrial detainee, the

defendant had a privacy right with respect to his personal

clothing that society was prepared to recognize as reasonable,

     16
       In his motion to suppress, the defendant raised a number
of additional challenges to the search and seizure of his
clothes and sneakers from the PCCF that the motion judge
considered and rejected in his memorandum of decision. The
defendant does not challenge these particular rulings on appeal,
and we do not discuss them except to say that we find no error
in the rulings.
                                                                   12


and that therefore was entitled to constitutional protection.

Because the officers who performed the seizure did not have a

warrant in hand at the time they seized the clothing and

sneakers, the defendant's argument continues, the seizure was

the equivalent of a warrantless seizure that violated the Fourth

Amendment to the United States Constitution and art. 14 of the

Massachusetts Declaration of Rights.

    As the defendant acknowledges, he carries the burden of

establishing that, in the circumstances presented, he retained a

reasonable expectation of privacy in his sneakers.   See

Commonwealth v. Bly, 448 Mass. 473, 490 (2007) ("To succeed on

appeal, [the defendant] must bear the threshold burden of

showing that a warrantless search or seizure occurred. . . .

This question is analyzed under the familiar two-part query

whether [the defendant] had a subjective expectation of privacy

in the items seized, and if so, whether that expectation was

reasonable objectively"); Commonwealth v. Montanez, 410 Mass.

290, 301 (1991) (same).   The defendant has not met this burden.

Based on undisputed evidence before him, the motion judge found

that as a matter of policy the PCCF deemed the personal clothing

(including footwear) of individuals held in custody there,

including pretrial detainees, to be contraband, and although the

PCCF generally allowed inmates to keep their sneakers, the

retention was a privilege that could be withdrawn at any time.
                                                                   13


Moreover, the status of a prisoner's clothing as contraband was

stated explicitly on the property seizure receipt used by the

PCCF to make a record of the defendant's items of clothing being

seized and stored; the defendant's signature on that receipt

indicates that he was or reasonably should have been aware of

the contraband status.

    As indicated, the defendant argues that as a pretrial

detainee, his privacy interests are entitled to greater

protection in the jail setting than those of a convicted

defendant serving a sentence.   We agree that a pretrial detainee

enjoys at least as many constitutional rights as a convicted

prisoner and perhaps more.   See Bell v. Wolfish, 441 U.S. 520,

545 (1979).   See also United States v. Cohen, 796 F.2d 20, 23-24

(2d Cir.), cert. denied, 479 U.S. 854 (1986).   But, as decisions

of the United States Supreme Court considering the Fourth

Amendment reflect, the legitimate penological interests and

needs of a jail also are entitled to great respect.     See Turner

v. Safley, 482 U.S. 78, 89 (1987); Bell, supra at 545-546.     See

also Florence v. Board of Chosen Freeholders of the County of

Burlington, 132 S. Ct. 1510, 1517 (2012) (considering

constitutionality of strip searches of jailed detainees).     We

have recognized the need to weigh legitimate penological

concerns and interests under art. 14 as well.   See, e.g., Matter

of a Grand Jury Subpoena, 454 Mass. 685, 689-693 (2009).     There,
                                                                 14


the court considered and rejected a challenge under art. 14 to a

sheriff's policy of recording the telephone calls of "inmates"

(both pretrial detainees and inmates serving a sentence) and

providing the recordings to the grand jury in response to

subpoena.   In doing so, the court observed that "we [have]

adopted the deferential standard of review for constitutional

challenges to prison regulations and policies established by the

United States Supreme Court in Turner v. Safley, [supra]."

Matter of a Grand Jury Subpoena, supra at 690 (citing and

discussing Cacicio v. Secretary of Pub. Safety, 422 Mass. 764,

772-773 [1996]).   Here, the defendant does not challenge the

validity of the PCCF's policy of treating inmates' clothing,

including sneakers, as contraband.17   Rather, he argues that the

sneakers were seized from his cell or from his person,18 and


     17
       Although the reason for the policy to treat clothing as
contraband was not raised by the defendant in his motion to
suppress and was not the subject of any testimony or other
evidence introduced at the hearing on the defendant's
suppression motions, we infer that the policy was one designed
for reasons of security and perhaps other reasons as well,
including sanitation and health. See Kight v. State, 512 So. 2d
922, 927 (Fla. 1987), cert. denied, 485 U.S. 929 (1988), and
cases cited (warrantless seizure of defendant's clothing by jail
authorities was permissible even though seizure was made in
order to test for evidence of crime, where legitimate health or
security purposes would have entitled jail authorities to effect
seizure of inmates' clothing at any time).
     18
       It is not relevant to our decision here, but the
defendant's assumption that if his sneakers were not seized from
his cell, they must have been seized from his person, has no
evidentiary support in the record.
                                                                  15


asserts that he had a reasonable expectation of privacy related

to the sneakers that was entitled to protection under the Fourth

Amendment and art. 14, and that barred the seizure of the

sneakers from either location.

    The defendant relies particularly on Cohen, 796 F.2d at 23-

24, in making his claim.   In Cohen, a correction officer

conducted a search of the defendant's cell in the jail facility

where he was being held pending trial.   The search was conducted

at the direction of a prosecutor, and in conducting it, the

officer focused on the defendant's papers in the cell.    Based on

information the officer obtained from these papers, the

prosecutor thereafter obtained a search warrant for them and

used the papers as evidence against the defendant at trial.    Id.

at 21.   The court concluded that because the initial,

warrantless "contraband" search was "intended solely to bolster

the prosecution's case against a pre-trial detainee awaiting his

day in court," id. at 23, with no purpose related to

institutional security, it violated the Fourth Amendment,

tainted the validity of the search warrant subsequently

obtained, and required suppression of the materials seized

pursuant to the warrant.   See id. at 23-24.   Accord, e.g., McCoy

v. State, 639 So. 2d 163, 164-167 (Fla. Ct. App. 1994)

(warrantless search ordered by prosecutor solely to uncover

incriminating evidence from defendant's cell; denial of motion
                                                                  16


to suppress reversed because no legitimate prison objectives

justified search); State v. Neely, 236 Neb. 527, 530, 540-541

(1990) (warrantless search of defendant's property in locked

jail inventory to look for evidence of crime; suppression order

affirmed).   See State v. Henderson, 271 Ga. 264, 267-268 (1999),

cert. denied, 528 U.S. 1083 (2000) (agreeing with principle that

warrantless search of pretrial detainee's cell solely at

prosecutor's request would be improper; search warrant would be

required).   In this case, it is true that the seizure of the

defendant's sneakers and other clothes was at the behest of

police who were conducting an investigation, and was not done

for institutional security reasons related to the PCCF.    But

here, in contrast to the Cohen case -- and similar to Henderson,

supra at 268-269 -- the police had obtained a search warrant for

the defendant's clothes, on the basis of an affidavit providing

probable cause, before any examination or seizure of the

sneakers occurred.19


     19
       Despite the existence of the search warrant, the
defendant asserts that under Commonwealth v. Guaba, 417 Mass.
746 (1994), the seizure of his sneakers was unreasonable by
definition because although the search warrant had issued by the
time the correction officers seized the sneakers, the officers
did not have a copy of the warrant with them when they did so.
See id. at 754 ("we hold art. 14 [of the Massachusetts
Declaration of Rights] implicitly requires law enforcement
officials to possess a copy of the warrant when executing it,
unless there are exigent circumstances which would permit a
warrantless search"). We explain in the next paragraph of the
text that at the time the sneakers were seized, the defendant
                                                                   17


      Moreover, in order to claim constitutional protection

against the seizure of his sneakers, the defendant must show

that he had an actual expectation of privacy in them that

society would be prepared to recognize as objectively

reasonable.   Matter of a Grand Jury Subpoena, 454 Mass. at 688,

quoting Commonwealth v. Blood, 400 Mass. 61, 68 (1987).     Even if

we assume that the defendant had a subjective expectation of

privacy related to his sneakers, it would not be one that is

objectively reasonable; the circumstances previously discussed

make this clear.20   As discussed, this court has long held that

the monitoring and recording of detainees' and other inmates'

telephone calls in a jail or house of correction, when the

inmates have notice of the policy, does not violate the Fourth

Amendment or art. 14.   See, e.g., Commonwealth v. Rosa, 468

Mass. 231, 242-244 (2014); Matter of a Grand Jury Subpoena,


did   not have a reasonable expectation of privacy in them that
was   entitled to protection under art. 14. Accordingly, we need
not   decide the defendant's Guaba claim or consider whether there
are   circumstances in which the "rule" of Guaba may not apply.
      20
       In terms of circumstances, we focus on the following:
the defendant was lawfully being held in custody at the PCCF on
an outstanding warrant; the PCCF had a policy, unchallenged by
the defendant, of treating the personal clothing belonging to
all inmates, including pretrial detainees, as contraband,
presumably as a security measure; and the defendant was or
reasonably can be held to have been aware of the policy, having
signed the "property seizure receipt" on the day of his arrival
at the institution. The personal papers of the defendant at
issue in United States v. Cohen, 796 F.2d 20, 21 (2d Cir.),
cert. denied, 479 U.S. 854 (1986), would not appear to be
covered by the PCCF policy.
                                                                   18


supra at 688-693; Cacicio, 422 Mass. at 770-773.   As we recently

determined in relation to inmate mail deemed contraband by jail

officials, see Commonwealth v. Jessup, 471 Mass. 121, 127-134

(2015), we conclude here that as a pretrial detainee in a jail

facility with a legitimate policy in place of treating detainee

and inmate clothing as contraband -- a policy of which the

defendant had notice -- the defendant had no constitutionally

protectable privacy interest in his sneakers that prevented

their seizure.

    2.   Joint venture.   The defendant argues that the trial

judge committed constitutional error by instructing the jury on

joint venture liability, over defense counsel's objection.      The

argument is not that there was insufficient evidence of a joint

venture between the defendant and Pimental, but rather that the

instruction violated his constitutional right to due process

because he had no notice that a joint venture theory would be

advanced.

    The defendant's claim lacks merit.   As the Commonwealth

points out, the opening statement of the prosecutor clearly

reflected the Commonwealth's position that the defendant and

Pimental acted together in committing the murder, as did the

defendant's own statements about committing the crime that were
                                                                  19


introduced through the testimony of one of the Commonwealth's

central witnesses, David Belmore.21

     The defendant suggests a denial of due process here because

the Commonwealth presented the defendant to the jury only as

having participated directly in the killing and therefore as a

"principal," whereas through the vehicle of the judge's joint

venture instruction, the jury were permitted to convict him as

an "accomplice" or "joint venturer," a theory of guilt that had

never been presented during trial and in response to which he

lacked an opportunity to prepare a defense.   The defendant's

argument, however, appears to be premised on an incorrect view

of joint venture principles.   To prove that a defendant

committed a crime as part of 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).

There is no requirement that the Commonwealth prove precisely

what role the defendant played -- whether he acted as a

principal or an accomplice (or joint venturer).   Rather, as

Zanetti reflects, what matters is only that there be proof of

     21
       Nor could any claim be made that the Commonwealth's
request for, and the judge's decision to give, a joint venture
instruction was a surprise. A joint venture instruction had
been given during the defendant's first trial, and the same
trial counsel represented the defendant in both trials.
                                                                    20


(1) the defendant's knowing participation in some manner in the

commission of the offense; and (2) the defendant's intent --

i.e., proof that the defendant had or shared in the intent

necessary for the offense of which he is convicted.    See id. at

466-468 & n.22.   The evidence presented by the Commonwealth in

this trial indicated that both the defendant and Pimental

actively participated in the killing of the victim, and also

that the defendant did so with the intent necessary to commit

murder.    There was no error in charging the jury on joint

venture.

    3.     Involuntary manslaughter instruction.   The defendant

claims reversible error in the trial judge's decision not to

give an instruction on involuntary manslaughter.    We disagree.

The trial evidence concerning the defendant's actions and role

in the killing of the victim was presented by the Commonwealth's

witness Belmore, who testified to conversations he had had with

the defendant while they were both incarcerated in the same

jail.    That evidence indicated that after Pimental knocked the

victim down, he and Pimental together kicked the victim with

Pimental kicking him in the head, and that the defendant jumped

on the victim's chest, making the victim's eyes "bug out."

According to the defendant, he and Pimental knew the victim was

dead when "his eyes stopped moving."    The injuries sustained by

the victim, which were consistent with someone jumping or
                                                                  21


stomping on his chest, were multiple and severe:   a broken

sternum, an injury that, according to the medical examiner, was

consistent with a great deal of force being applied; a lacerated

heart and torn lung; and broken ribs on both sides of his body,

also involving significant force.   The victim's additional

injuries included a broken jaw and blunt force trauma to the

head such that his face was unrecognizable.

    The intent necessary to prove murder in the first degree on

the theory of extreme atrocity or cruelty includes (1) an intent

to commit grievous bodily harm or (2) an intent to commit an act

that, in the circumstances known to the defendant, created a

plain and strong likelihood that death would follow (third prong

malice).   Commonwealth v. Pimental, 454 Mass. 475, 480 (2009).

The intent necessary to prove involuntary manslaughter is an

intent to commit an act that "involves a high degree of

likelihood that substantial harm will result to another."

Commonwealth v. Vizcarrondo, 427 Mass. 392, 396 (1998), S.C.,

431 Mass. 360 (2000), quoting Commonwealth v. Sires, 413 Mass.

292, 303 n.14 (1992).   The circumstances of the killing and

injuries sustained by the victim are not consistent with

anything other than intent to do grievous bodily harm or an
                                                                  22


intent qualifying as third prong malice.   The trial judge did

not err in declining to instruct on involuntary manslaughter.22

     4.   Prosecutor's closing argument.   In her closing

argument, the prosecutor stated:

          "Now, the defense has suggested that Eric Pimental
     acted alone and that this defendant did nothing but stand
     by. There is not a scintilla of evidence to support that
     proposition, ladies and gentlemen. . . . [T]hree men
     walked into the woods and only two came out. And those two
     men walked out of those woods together, and they were both
     carrying the property of [the victim]. [T]hey both had the
     blood of [the victim] on their shoes." (Emphasis added.)

     The defendant contends that the prosecutor's statement

about "not a scintilla of evidence" improperly shifted the

burden of proof to the defendant.   We disagree.   In context, the

argument represented a response to defense counsel's closing

argument in which he summarized the evidence of blood and other

physical evidence linking Pimental directly to the crime, and

the paucity of such evidence relating to the defendant, and then

argued that the defendant had been present with Pimental when

the latter killed the victim, but had not actively participated

in the crime -- that his conduct in not interfering and stopping




     22
       In any event, the jury also convicted the defendant of
murder in the first degree on a theory of felony-murder, with
armed robbery as the predicate felony. A defendant is not
entitled to an instruction on involuntary manslaughter in
connection with the theory of felony-murder. See Commonwealth
v. Jessup, 471 Mass. 121, 135 (2015); Commonwealth v. Selby, 426
Mass. 168, 172 (1997).
                                                                    23


his companion was morally "troubling", but was not a crime.23

The prosecutor was entitled to respond to the defense argument

and also to comment on the strength of its case and weakness of

the defense, "as long as argument is directed at the defendant's

defense and not at the defendant's failure to testify."

Commonwealth v. Garvin, 456 Mass. 778, 799 (2010).    Considering

the challenged phrase in the context of the prosecutor’s entire

argument, we find no error.

     5.    Relief pursuant to G. L. c. 278, § 33E.   We have

thoroughly reviewed the evidence and record in this case, and

find no basis on which to grant relief to the defendant pursuant

to G. L. c. 278, § 33E.

                                    Judgments affirmed.




     23
          Defense counsel argued:

          "I know for many people it's troubling that Mr. Silva
     would even be present, okay, and that it's morally
     troubling that he didn't intervene. I understand that.
     But that is not a crime. It's not right, but it's not a
     crime. We're here to determine not whether he acted,
     necessarily, the way we would have wished he had acted that
     day, but we're here to determine whether he committed a
     crime."
