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SJC-11448

                  COMMONWEALTH   vs.   ELVIN VALENTIN.



            Bristol.    January 12, 2016. - May 20, 2016.

    Present:    Gants, C.J., Spina, Cordy, Duffly, & Lenk, JJ.


Homicide. Intoxication. Evidence, Prior misconduct, Relevancy
     and materiality. Practice, Criminal, Capital case,
     Argument by prosecutor, Request for jury instructions,
     Instructions to jury.



     Indictments found and returned in the Superior Court
Department on September 28, 2009.

    The cases were tried before Thomas F. McGuire, Jr., J.


     John F. Palmer for the defendant.
     Rachel W. van Deuren, Assistant District Attorney, for the
Commonwealth.


    DUFFLY, J.     The defendant was convicted by a Superior Court

jury of murder in the first degree in the shooting deaths of

Nettie Becht and Luis Diaz, on theories of premeditation and

extreme atrocity or cruelty.     On appeal, the defendant asserts

error in the judge's decision to permit the introduction in
                                                                   2


evidence of weapons and related items that he lawfully owned and

that were not alleged to have been used in the shooting.    The

defendant asserts error also in the denial of his request that

the jury be instructed on voluntary manslaughter based on a

theory of reasonable provocation, and in the instruction that

was given that the jury must "find" the defendant was

intoxicated.   He also challenges portions of the prosecutor's

closing argument in several respects.

    Concluding that there was no error, we affirm the

defendant's convictions and decline to exercise our authority

under G. L. c. 278, § 33E, to grant a new trial or reduce the

verdicts to a lesser degree of guilt.

    1.   Background.   a.   Commonwealth's case.   We recite the

facts the jury could have found, reserving certain facts for

later discussion.   The defendant and Becht lived in different

apartments in the same housing complex in New Bedford.     They had

been involved in an intermittent relationship that spanned a

four-year period; during that period, the defendant and Becht

occasionally spent the night at each other's apartments and the

defendant had loaned Becht money.   According to the defendant,

Becht had "cheated" on him and he felt that she was "using" him.

Becht ended the relationship prior to the shootings.

    Becht was treated at a hospital on the night before she was
                                                                      3


killed.1    When the defendant attempted to visit her there, she

told him that she did not want to see him.    The next day, August

14, 2009, at approximately 8 P.M., the defendant went to the

home of a friend of Becht, after Becht failed to return the

numerous telephone calls he had made throughout the day.      Becht

came out of the house and spoke with the defendant while they

were standing outside the house.    She told him that she had

started a relationship with someone else and that she was "done"

with him.    The defendant responded by saying, "[W]e'll see,

we'll see," and told her not to do it "in [his] face."    He left

and returned to his apartment.

     Later that night, at approximately 10 P.M., Becht's friend

drove her to a bus station to pick up Luis Diaz, a man Becht had

met on a "chat line."2    Becht had spoken with Diaz on the

telephone, but the two had not met in person.    After picking

Diaz up from the bus station, the friend drove Diaz and Becht to

Becht's apartment and left.    At that time, the defendant was in

his apartment in the same apartment complex, sitting in his

kitchen with the lights turned off.    He saw Becht and Diaz from

     1
       The reason for the hospitalization was unrelated to the
events leading to her death, and the judge excluded it from
evidence.
     2
       A witness described the "chat line" as a telephone chat
line. A chat line makes it possible for multiple people to
communicate with one another at the same time by telephone call,
and is often used as an alternative to online dating. See
Evenstad v. Carlson, 470 F.3d 777, 780 (8th Cir. 2006).
                                                                     4


his window as they walked toward her apartment.    He armed

himself with a loaded nine millimeter semiautomatic pistol,

which he subsequently told police that he kept readily

accessible for protection because he recently had been the

victim of a robbery.

     The defendant emerged from his apartment carrying the

loaded gun.   Becht saw that the defendant was armed and

screamed, "No, no."    The defendant first pointed the gun at Diaz

and fired; he then pointed the gun at Becht and fired several

more shots.   When Diaz tried to get up after he had been shot,

the defendant said, "What?    You not ready to die yet?" and again

fired the gun at Diaz.    In all, the defendant fired ten shots.

Police and paramedics arrived within minutes of the shootings;

Diaz was still breathing but Becht was not.    Both victims were

taken by ambulance to a nearby hospital where, later that night,

they were pronounced dead.    Each died of gunshot wounds to the

torso.

     The defendant returned to his apartment and changed his

clothes and shoes.3    He put the gun in a closet in the living

room and left the apartment.    Immediately after the shootings,

the defendant spoke to his son on his cellular telephone, and


     3
       Testing of deoxyribonucleic acid samples taken from the
defendant's shoes recovered from his apartment, the gun used to
shoot the victims, and the doorknob on his apartment door
established that Becht's blood was on each item.
                                                                         5


said, "Hey, I killed Netti because I find her with another guy

and I killed that other guy, too."        Shortly thereafter, a police

officer noticed the defendant walking away from the crowd of

people that had gathered.       The officer followed the defendant,

who was still talking on his cellular telephone, and ordered him

to stop.       When the officer approached, the defendant said, "Yes,

yes.       I'm the one who did it."   The officer read the defendant

his Miranda rights, in English, and handcuffed him.4       The

defendant indicated that he understood his rights.       Before the

officer had asked any questions, the defendant asked, "Is the

lady dead?"       When the officer responded that he did not know,

the defendant asked, "How about the guy?        Is he dead?"   The

defendant's tone was "casual" and without emotion.5

       As the officer spoke to the defendant, the crowd of people

that had gathered at the scene of the shootings began angrily to

approach the defendant.       The officer placed the defendant in his

police cruiser for the defendant's safety.        As they sat in the

cruiser, the defendant told the officer that he was concerned

the crowd would burn his automobile.        When the officer asked why

he had that concern, the defendant replied that it was because

       4
       The officer asked the defendant whether he spoke and
understood English, and the defendant said that he did. The
defendant also indicated that he spoke Spanish.
       5
       Prior to trial, the defendant filed a motion to suppress
his various statements to police. The motion was denied, and,
on appeal, the defendant does not challenge that denial.
                                                                     6


he had shot the victims.    The officer asked the defendant why he

had done so, and the defendant responded that he had told Becht

not to cheat on him.    The defendant told another officer that

the gun used in the shootings was located in his apartment.6

     Police transported the defendant to the police station,

where he agreed to be interviewed.    In a video-recorded

interview, conducted in English, the defendant explained that he

had been in a relationship with Becht for about four years, but

that she wanted to date other people.7    The defendant stated that

he had been sitting in his kitchen with the lights turned off,

drinking whiskey, as he waited for Becht to return to her

apartment.    He said that he had consumed one-half of a bottle of

whiskey in the hours before the shootings, and went "crazy" when

he saw Becht walk by his apartment with Diaz because he had been

drinking.8    When asked whether he had made the decision to shoot


     6
         The gun was found in a closet in the defendant's living
room.
     7
       Prior to this interview, an off-duty bilingual officer
read the defendant his Miranda rights, this time in Spanish.
The defendant stated that he did not want to speak to the
officers and that he wanted an attorney. Then, unprompted, the
defendant told the officer that, earlier that night, he had
sought out Becht at her friend's house to ask about the status
of their relationship, and Becht had said that it was over
between them and that she was seeing someone else. The
defendant told the officer that he had said to Becht, "We'll see
about that." He also said that he had consumed three to four
glasses of whiskey as he waited for Becht to return home.
     8
         A half-empty bottle of whiskey was found in the
                                                                     7


Becht and Diaz when he walked out of the apartment with his gun,

the defendant said, "Well, yeah, I think that the alcohol made

me do the shooting."

     b.    Defendant's case.    The primary defense at trial was

that the defendant's intoxication warranted convictions of a

lesser offense than murder in the first degree.     The defendant

called a forensic psychiatrist as an expert witness to explain

generally the effects of alcohol intoxication.9     In addition, one

police officer testified that he smelled the odor of alcohol

emanating from the defendant as they sat in the police cruiser

immediately after the defendant was arrested.

     2.    Discussion.   a.   Admission of evidence of other

weapons.    The defendant argues that he was prejudiced by the

Commonwealth's improper introduction of evidence concerning his

ownership of weapons other than the weapon used in the

shootings, which the defendant categorizes as evidence of prior

bad acts.    The Commonwealth introduced testimony that the

defendant owned several handguns, a rifle, a shotgun, several

boxes of ammunition, gun magazines, a National Rifle Association

certificate, and a buck knife.     Photographs of these items were

introduced in evidence, as were the boxes of ammunition and



defendant's apartment.
     9
       The expert had not reviewed any of the evidence in the
case and had not spoken with the defendant.
                                                                    8


other items themselves.   The defendant did not object to the

introduction of the testimony or this evidence.   On cross-

examination, the defendant elicited testimony establishing that

he had been required to satisfy specific criteria to obtain

licenses for the firearms.   The prosecutor also referred to some

of the weapons evidence in the opening statement.10   Because the

defendant did not object, we review his claim to determine

whether the evidence should not have been admitted and, if it

was admitted erroneously, whether the admission created a

substantial likelihood of a miscarriage of justice.

     We have cautioned against the admission of evidence of

weapons or firearms where those items "definitively could not

have been used in the commission of the crime" charged.

Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012).   We have

expressed concern in such circumstances that the introduction of

evidence of firearms unrelated to the crime charged "creates a

risk that the jury will use the evidence impermissibly to infer

that the defendant has a bad character or a propensity to commit

the crime charged."   Commonwealth v. McGee, 467 Mass. 141, 156

(2014).   We also have recognized, however, that there may be a

     10
       The prosecutor told the jury, "You will hear the choices
that the defendant made over that evening. First, he had the
choice of which gun he was going to use. He had a .357, he had
a .45 caliber, he had a .40 caliber; all handguns. He had a .12
gauge shotgun, and he had a Colt 223 rifle. However, this
defendant chose his Smith & Wesson, a nine millimeter, loaded
with ten rounds in the magazine."
                                                                       9


permissible purpose for the admission of such weapons-related

evidence, and have "not unconditionally disapproved" of it.

Commonwealth v. Barbosa, supra at 122-123, and cases cited.      The

critical questions are whether the weapons-related evidence is

relevant and, if so, whether the probative value of the evidence

is substantially outweighed by its prejudicial effect.     See

Commonwealth v. McGee, supra.

    Here, it is undisputed that none of the weapons-related

evidence that the defendant challenges was relevant to the

crimes charged.   The defendant kept the gun used in the

shootings loaded and accessible, apparently not locked in his

gun safe.   The police recovered that gun from a closet in the

defendant's living room; the defendant has not challenged its

admission, nor has he challenged the introduction of a box of

ammunition from which ten bullets apparently had been used to

load the gun used in the shootings.   That box of ammunition and

the other weapons and ammunition were found locked in a gun safe

in the defendant's bedroom.

    The Commonwealth contends that the weapons evidence

properly was admitted to show that the shootings were

premeditated.   In the circumstances here, we do not agree.

Unlike the scenario presented in Commonwealth v. Tassinari, 466

Mass. 340, 352-353 (2013), there was no evidence in this case

that the defendant "deliberately chose" the murder weapon from a
                                                                   10


cache of other available weapons, and there was no evidence

that, on the night of the shootings, the defendant even unlocked

the safe where the other weapons were stored.   Further, the

Commonwealth's theory at trial was that the defendant decided to

kill Becht because she had told him earlier that day, as well as

the night before, that she no longer wanted to be involved in a

relationship with him.   There is no suggestion that the

defendant acquired or handled any of his other weapons at some

point after Becht rebuffed him.   The fact that the defendant

lawfully owned multiple firearms and a buck knife, which he kept

securely locked in a gun safe, bears no relevance to whether he

deliberated before he shot Becht and Diaz.   Contrast

Commonwealth v. Carney, 472 Mass. 252, 256 (2015) (evidence

defendant owned and was familiar with firearms relevant to show

shooting was not accident as defendant claimed).

    Likewise, we conclude that the weapons evidence is not

relevant to the question whether the murder was committed with

extreme atrocity or cruelty.   In total, the defendant fired ten

shots at the two victims, and both died of multiple gunshot

wounds.   The Commonwealth contends that the weapons evidence

permitted the jury reasonably to infer that the defendant was

familiar with weapons, and that, based on that inference, the

jury could draw the further inference that the disproportionate

means the defendant used to inflict death was not the result of
                                                                     11


an unskilled shooter, but rather the result intended by an

experienced shooter.    Such a "piling of inference upon

inference" is improper in this context.    Cf. Commonwealth v.

Kelly, 470 Mass. 682, 693 (2015).    The defendant made no claim

at trial that the multiple bullets fired, or the shootings

themselves, were the result of a lack of familiarity with guns

or ignorance regarding the damage multiple gunshots could

inflict.    Nothing about the defendant's skill level as a shooter

or familiarity with guns was related to any of the issues at

trial.     Cf. Commonwealth v. Anderson, 448 Mass. 548, 560 (2007)

(testimony that defendant was skilled with knife "tended to

prove that [he] possessed the means and ability to commit the

crime, thus making it relevant to whether he was the killer").

Because the evidence of the defendant's lawful ownership of

other firearms, ammunition, and a buck knife was not relevant to

the jury's determination whether the shootings were committed

with extreme atrocity or cruelty, the evidence should not have

been admitted.

    Even if we were to agree, as the Commonwealth argues, that

it had some "tenuous relevancy" to show that the defendant "was

acquainted with weapons and was able to use them," that

probative value is substantially outweighed by its prejudicial

effect.    See Commonwealth v. Toro, 395 Mass. 354, 358 (1985).

The Commonwealth contends also that because the defendant
                                                                    12


lawfully owned the weapons and ammunition, he cannot argue that

evidence of his ownership was prejudicial "bad act" evidence.

The rules of evidence, however, do not contemplate only the

exclusion of evidence relating to unlawful acts.    A trial judge

"may exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair prejudice."

See Mass. G. Evid. § 403 (2016).   In addition, "[e]vidence of a

crime, wrong, or other act is not admissible to prove a person's

character in order to show that on a particular occasion the

person acted in accordance with the character."    See Mass. G.

Evid. § 404(b)(1) (2016).

    Accordingly, our focus is on whether the weapons evidence

"creates a risk that the jury will use the evidence

impermissibly to infer that the defendant has a bad character or

a propensity to commit the crime charged."    See Commonwealth v.

McGee, supra at 156.   As the defendant argues, the evidence of

his ownership of multiple firearms portrayed him as someone who

was likely to commit murder, the crime with which he was

charged, and should not have been admitted.

    The improperly admitted evidence, however, did not create a

substantial likelihood of a miscarriage of justice.    The

evidence against the defendant was strong.    There was a vast

quantity of evidence that he was the shooter and shot both

victims with the firearm recovered by police, and no evidence to
                                                                    13


the contrary.   There were several witnesses to the shootings

and, immediately after the shootings, the defendant confessed

and explained his motive to police.   In this context, the

evidence of the defendant's other weapons would have been

"insignificant" in the jury's thinking.     See Commonwealth v.

Toro, supra at 359.   Although the judge did not provide a

limiting instruction on the use of the unrelated weapons

evidence, defense counsel effectively cross-examined the police

witness who testified about the other weapons in order to

establish that the defendant lawfully owned them, and thus that

he had satisfied the required criteria for a firearms license,

and that the other weapons had not been used in the crime

charged.    This mitigated some of the danger that the jury would

draw a prejudicial inference from the evidence.    In sum, the

jury's verdicts would not have been different had the improperly

admitted weapons evidence been excluded.

    b.     Prosecutor's closing argument.   The defendant asserts

that several aspects of the prosecutor's closing argument were

improper.    He claims that the prosecutor suggested, without

evidentiary basis, that the defendant was "lying in wait" for

Becht to return on the night of the shootings, and that she was

"begging" for her life as the shots were being fired.    The

defendant also contends that the prosecutor injected her own

view of the witnesses' credibility into her closing, and
                                                                   14


improperly asked the jury to put themselves in the place of the

defendant.   Because the defendant did not object to any portion

of the closing argument at trial, we review to determine whether

the improprieties, if any, posed a substantial likelihood of a

miscarriage of justice.   See Commonwealth v. Mejia, 463 Mass.

243, 253-254 (2012).   We discern no error.

     "Prosecutors must limit the scope of their closing

arguments to facts in evidence and the fair inferences that may

be drawn therefrom."   Commonwealth v. Guy, 441 Mass. 96, 110

(2004).   Here, there was evidence that the defendant was in his

apartment, sitting in the dark, waiting for Becht to come home,

and that he had a loaded gun nearby.   The prosecutor's statement

that the defendant was "lying in wait" and other similar remarks

were fair arguments grounded in the evidence, and were related

to the issue of premeditation.   There also was testimony that

Becht yelled, "No, no," as the defendant shot at her.   The

prosecutor's argument that Becht was "begging for her life" was

not improper in light of this evidence, and was relevant to the

Commonwealth's theory of extreme atrocity or cruelty.   See

Commonwealth v. Taylor, 455 Mass. 372, 383 (2009), quoting

Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) ("A prosecutor

may argue 'forcefully for a conviction based on the evidence and

on inferences that may reasonably be drawn from the evidence").

    The defendant also contends that the prosecutor improperly
                                                                      15


injected her own view of the witnesses' credibility into her

closing in discussing the issue of intoxication.      In reviewing

this claim, we consider the context in which the prosecutor made

her remarks.    At trial, defense counsel elicited testimony from

a police officer that the police had found a half-empty bottle

of whiskey in the defendant's apartment.      In his closing

argument, defense counsel drew attention to the presence of the

whiskey bottle, stating, "As a matter of fact, when [the

detective] testified, and [the prosecutor] was introducing a

number of items, you didn't see him pick up that bottle and

introduce it.   I did.   I did.   They want this [half-empty bottle

of whiskey] to be nonexistent.    It's not.    It exists.   And you

can't disregard it."

    The prosecutor began her closing argument by responding to

defense counsel's argument.    She stated:

         "Defense counsel made mention [of] the fact that he
    had to put [the half-empty whiskey bottle] into evidence
    through [the detective]. Well, do you remember the
    testimony of [the detective]? He wasn't the one who found
    it. Why would it go in through him? [A State police
    trooper] was the person who found the alcohol, who hadn't
    testified yet. So is that what you think, ladies and
    gentlemen? That [we] have been trying to keep things from
    you during the course of this trial? We've put well over a
    hundred exhibits before you. I'm not asking you to ignore
    the alcohol at all."

This argument was not improper, but, rather, was in direct

response to the defendant's suggestion that the Commonwealth

sought to hide evidence that a partially consumed bottle of
                                                                  16


whiskey had been recovered from the defendant's home.     See

Commonwealth v. Lewis, 465 Mass. 119, 130 (2013) ("prosecutor

may address a particular point in defense counsel's closing

argument").

    Likewise, the prosecutor's final statement to the jury

"ask[ing]" them, "on [her] behalf, and on the behalf of [her co-

prosecutor], and on behalf of the Commonwealth, that [they] find

this defendant . . . guilty of . . . murder in the first degree"

was not improper.   The phrase was a "rhetorical flourish" that

the prosecutor used to argue that the jury should render guilty

verdicts.   "[W]e presume the jury 'know that the prosecutor is

an advocate' . . . and that they recognize arguments as

'advocacy and not statements of personal belief'" (citations

omitted).   See Commonwealth v. Mejia, supra at 254.

    The defendant's final contention is that "the prosecutor

improperly urged the jurors to rely on their own experiences

with intoxication, instead of the evidence, in evaluating

the . . . intoxication defense."   The prosecutor stated,

         "Use your common sense and life experience. . . .
    Certainly you guys over your various years have seen people
    intoxicated, might have been intoxicated yourself. You
    know what the reaction is. You know what outward signs you
    might have had. Would you have the capability to do this?
    To walk up calmly, confidently, deliberately, put up a gun,
    hold your hand straight, shoot ten times?"

Inviting the jurors to draw upon their own life experience and

common sense is permissible.   See Commonwealth v. Lao, 460 Mass.
                                                                   17


12, 22 (2011) ("request that jury apply their common sense was

proper").   Although the suggestion that the jury put themselves

in the place of the defendant would have been better not made,

here the statement was made in the context of asking the jurors

to consider their own life experiences and common sense in

evaluating the effect of intoxication.    Cf. Commonwealth v.

Pontes, 402 Mass. 311, 318 (1988) (asking jury to put themselves

in place of victim's father not improper where, in context, it

was attempt to suggest father acted reasonably).   Contrast

Commonwealth v. Bizanowicz, 459 Mass. 400, 420 (2011) ("jury

should not be asked to put themselves 'in the shoes' of the

victim, or otherwise be asked to identify with the victim").

There was no error in the prosecutor's closing argument.

    c.   Jury instruction on voluntary manslaughter.    At the

close of all the evidence, the defendant orally requested an

instruction on voluntary manslaughter based on the theory that

the defendant killed the victims in the heat of passion because

he was reasonably provoked when he saw Becht with Diaz on the

night of the shooting.   Concluding that the evidence did not

warrant a finding of reasonable provocation, the judge denied

the request and the defendant objected.

    The defendant contends that the judge should have

instructed the jury on voluntary manslaughter because the

defendant still considered Becht to be his "girl friend" at the
                                                                    18


time of the shootings.     The defendant acknowledges that Becht

had told him that their relationship was over and that she was

dating other people, but points to his statement that he had

warned her "[not to] do it in [his] face."    The defendant

maintains that he went "crazy" when he saw Becht walking with

Diaz, and thus that the instruction was warranted.

    Where an instruction on voluntary manslaughter is

requested, a trial judge should so instruct the jury if any view

of the evidence would warrant a finding that the unlawful

killing arose not from malice, but "from . . . sudden passion

induced by reasonable provocation, sudden combat, or excessive

force in self-defense."    See Commonwealth v. Avecedo, 446 Mass.

435, 443 (2006), quoting Commonwealth v. Carrion, 407 Mass. 263,

267 (1990).    Reasonable provocation means that a reasonable

person would have been provoked "to lose his self-control in the

heat of passion," and that person would not have had time to

"cool off" before the killing (citations omitted).    See

Commonwealth v. Avecedo, supra at 442-443.     Because the standard

is both objective and subjective, the jury must be able to infer

from the evidence not only that a reasonable person would have

been so provoked, but also that the defendant was in fact

provoked and that he or she did not have sufficient time to cool

off in the period that elapsed between the provocation and the

homicide.     See id. at 443; Commonwealth v. Groome, 435 Mass.
                                                                    19


201, 220 (2001).   We "view the evidence in the light most

favorable to the defendant to determine whether an instruction

on reasonable provocation was warranted."    Commonwealth v.

Avecedo, supra.

    Here, the evidence introduced at trial would not have

permitted the jury to find reasonable provocation.   Even

assuming that the defendant still believed that Becht was his

girl friend on the day of the shootings, the facts do not

support a finding of reasonable provocation as defined in our

case law.    Viewed in the light most favorable to the defendant,

he and Becht had been involved in an occasional romantic

relationship, which Becht had ended several hours prior to the

shootings.   Moreover, on the night before the shootings, Becht

had rebuffed the defendant when he tried to visit her at the

hospital.    The defendant thus had no reason to expect that Becht

would not become romantically involved with other people, and

has no basis upon which to claim that he was reasonably provoked

when he saw Becht with Diaz.   See Commonwealth v. Benson, 453

Mass. 90, 95 (2009) ("provocation occurs only when an action of

the victim triggers a sudden loss of self-control in the

defendant").   Contrast Commonwealth v. Andrade, 422 Mass. 236,

238 (1996) (evidence supported inference that defendant observed

spouse with another man, thus confirming his suspicion of

unfaithfulness).
                                                                   20


    Even were we to assume that the defendant reasonably could

have expected fidelity from Becht, the evidence would not have

permitted the jury to find that the defendant was reasonably

provoked.   The defendant did not come upon Becht and Diaz

engaged in romantic or sexual activity; he observed them merely

walking together towards her apartment.   Compare Commonwealth v.

Smith, 460 Mass. 318, 325 (2011) (defendant discovered victim,

whom he had been dating for six weeks, engaging in oral sex with

another man).   On these facts, the jury could not infer that a

reasonable person would have become sufficiently provoked to

shoot and kill two people.    See Commonwealth v. Benson, supra.

There was no error in the denial of the defendant's request for

a manslaughter instruction.

    d.   Jury instruction on intoxication.    In her final charge,

the judge properly instructed the jury on intoxication, and the

defendant does not challenge that instruction.    After a few

hours of deliberation, the jury submitted a note with a question

concerning the "subcategories" of murder.    After a sidebar

discussion, neither the judge nor counsel were able to determine

precisely what information the jury sought.    With counsel's

approval, the judge decided to "go over the instructions again,

perhaps in a more summary fashion."

    In his summary review of the instructions, after describing

the elements of the various degrees and theories of murder, the
                                                                 21


judge instructed,


         "Intoxication does not necessarily excuse murder. The
    question is did the intoxication prevent the defendant from
    forming the intent or from having knowledge of the
    circumstances giving rise to the plain and strong
    likelihood of death. So you can consider any believable
    evidence -- if you find that the defendant was intoxicated
    from the consumption of alcohol, you can consider that
    evidence on several points. . . . And then you can also
    consider any intoxication, if you find intoxication, on the
    issue of whether the defendant acted in a cruel or
    atrocious manner in causing the death of the
    deceased. . . . So I'll just repeat. . . . So the
    intoxication bears on, if you find intoxication, you can
    consider it in evaluating the defendant's intention and the
    defendant's knowledge of the circumstances"

In total, the judge stated three times that if the jury found

the defendant was intoxicated, they could consider his

intoxication when evaluating both theories of murder in the

first degree.

    The defendant argues that the instruction that the jury had

to "find" intoxication improperly shifted the burden of proof

from the Commonwealth to him.   Because the defendant did not

object at trial, we review to determine whether there was a

substantial likelihood of a miscarriage of justice.   Although we

have observed that this "finding" language is disfavored in a

jury instruction, it "is not in error when the charge, read as a

whole, clearly places the burden on the Commonwealth to prove

each element of the offense beyond a reasonable doubt."

Commonwealth v. Petetabella, 459 Mass. 177, 192 (2011), citing
                                                                  22


Commonwealth v. Cundriff, 382 Mass. 137, 153 (1980), cert.

denied, 451 U.S. 973 (1981).   Moreover, our concern with the

"finding" language is most acute when used in conjunction with

"complete, malice-negating defenses," such as self-defense,

accident, or necessity.   See Commonwealth v. Waite, 422 Mass.

792, 805 (1996), and cases cited.   Because "intoxication and

impairment do not negate premeditation, but are mere subsidiary

facts that the jury consider in sifting the circumstantial

evidence as to [the defendant's] mental state . . . , there is

no particular standard of proof that 'finding' language can

impermissibly alter."11   Id. at 805-806.

     Here, as the defendant concedes, the instructions provided

to the jury before they began deliberating were proper.

Although the judge used the disfavored "finding" language in his

summary reiteration of the instructions, the use of this

language did not shift the burden of proof to the defendant.

When viewed as a whole, the instructions clearly placed the

burden of proof on the Commonwealth to prove each element of

     11
       We decline the defendant's invitation to reconsider our
line of cases distinguishing "subsidiary facts" from facts that
bear on "malice-negating offense" based on the United States
Supreme Court's decision in Alleyne v. United States, 133 S. Ct.
2151 (2013). There, the Court held that any fact that increases
a mandatory minimum sentence is an element of the crime, not
merely a sentencing factor, and therefore a criminal defendant
has a right under the Sixth Amendment to the United States
Constitution to have the jury decide all such facts. Id. at
2162-2163. Those Sixth Amendment concerns are not implicated
here.
                                                                  23


murder, including intent, beyond a reasonable doubt.

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

entire record pursuant to our duty under G. L. c. 278, § 33E,

and conclude that there is no reason to order a new trial or to

reduce the degree of guilt.

                                   Judgments affirmed.
