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SJC-10018

                COMMONWEALTH   vs.   JOSEPH SPINUCCI.



      Middlesex.      April 10, 2015. - September 29, 2015.

   Present:   Gants, C.J., Botsford, Duffly, Lenk, & Hines, JJ.



Homicide. Assault and Battery by Means of a Dangerous Weapon.
     Practice, Criminal, Instructions to jury, Hearsay, Capital
     case. Malice. Evidence, Joint venturer, Hearsay. Joint
     Enterprise. Dangerous Weapon.



     Indictments found and returned in the Superior Court
Department on September 9, 2004.

     The cases were tried before Paul A. Chernoff, J., and a
motion for postconviction relief was heard by him.


     Joseph A. Hanofee for the defendant.
     Fawn D. Balliro Andersen, Assistant District Attorney, for
the Commonwealth.


    BOTSFORD, J.    In June, 2006, a Middlesex County jury found

the defendant guilty of the murder in the first degree of Ryan

Sullivan on the theory of extreme atrocity or cruelty; he also

was found guilty of four related offenses involving two other
                                                                      2


victims, William Tighe and Jules Stevens.1       He appeals from these

convictions and also appeals from the denial of his posttrial

motion for relief.    He argues that the trial judge erred by

declining to instruct the jury on manslaughter on a provocation

theory; denying his motion for a new trial on the ground that a

manslaughter instruction on this theory clearly was required; in

connection with the murder charge, failing to instruct the jury

that before they could infer malice from the intentional use of

a dangerous weapon on the part of the defendant as a joint

venturer with Van Gustave (see note 1, supra), the jury must

find that the defendant knew Gustave was armed with a knife;

allowing the jury to consider hearsay evidence to establish the

defendant's knowledge that his alleged joint venturer Gustave

possessed a knife; and denying the defendant's motion for a

required finding of not guilty on the two charges relating to

the victim Stevens.       He also claims that he is entitled to

relief under G. L. c. 278, § 33E.        We affirm the defendant's

convictions and decline to grant relief pursuant to c. 278,

§ 33E.

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

     1
       The defendant's codefendant, Van Gustave, was not tried
together with the defendant. The Commonwealth's theory at trial
was that the defendant and Gustave committed all of the crimes
charged as participants in a joint venture, although the
Commonwealth argued that the roles each played -- whether
"principal" or "joint venturer" or both -- differed in relation
to each crime.
                                                                      3


could have found, reserving certain details for later discussion

in connection with the issues raised.   On the night of July 1,

2004, the city of Somerville put on a fireworks display in Trum

Field.   The defendant, Gustave, and their respective girl

friends, Claudine Dyer and Danielle Leblanc, met before the

fireworks and went together to the event.   All four were

drinking before and during the fireworks display; Gustave and

Leblanc also had taken a number of Klonopin pills.     As they were

walking together toward the fireworks, Leblanc asked Gustave if

she could hold his knife in case they ran into "anybody that I

had problems with."   Gustave answered, "No."   Dyer similarly

asked the defendant whether he had a knife and whether she could

hold it; the defendant also answered, "No."     The defendant heard

the interchange between Gustave and Leblanc.

    The foursome watched the fireworks from a garage roof on

Albion Street, where they drank beer and smoked marijuana; the

defendant and Dyer each drank approximately six beers.      After

the fireworks were over, the four began to walk on Cedar Street.

William Tighe came running down the street from the bicycle path

near them, and Leblanc confronted him with a statement or

question about her brother and drugs.   A heated dispute between

Leblanc and Tighe ensued, in the course of which Tighe came up

very close to Leblanc, shouting and threatening her, Dyer then

approached Tighe and punched him in the face, and Tighe
                                                                      4


responded by pushing Dyer down against a fence.     As this

confrontation was taking place, Sullivan and Stevens came

walking down the street and were standing behind Tighe, whom

they knew through Tighe's younger brother.    Neither Sullivan nor

Stevens carried a weapon, and neither said anything or joined

the dispute.    After Tighe pushed Dyer, the defendant and Gustave

began to approach him, and they both took out their knives;

Tighe did not have a weapon.    Tighe began to run down Warwick

Street, and told Stevens and Sullivan to run; Gustave and the

defendant ran after Tighe in pursuit.     Tighe stumbled as he ran;

the defendant caught up to him, and stabbed him with a knife in

the back, inflicting a superficial wound.    Tighe got up and

continued to run.    The defendant and Gustave ran toward Stevens

and Sullivan.   Gustave grabbed Stevens by the waist and stabbed

him in the side; Stevens fell to the ground.     The defendant did

not attack Stevens, but connected with Sullivan.     At this point,

the entire group was on Warwick Street.     The defendant stood and

then crouched over Sullivan, with his arm repeatedly stabbing

him in the stomach area.    Gustave then joined the defendant in

stabbing Sullivan; Sullivan appeared to be fighting against

them.   Leblanc kicked Sullivan a few times in the head as he lay

on the ground, and Dyer also may have kicked him.

    As these events were unfolding on Warwick Street, Michael

McCormack, Tighe's stepfather, who was in the backyard of his
                                                                       5


house on Warwick Street, heard a young male voice say, "Get off

me.   Leave me alone," and came running out of his driveway.      He

saw the defendant and Gustave bending over Sullivan and Stevens,

who were both lying on the ground.    McCormack ran toward the

defendant and Gustave, swearing at them, and "bowled them over."

The defendant and Gustave ran away, as did Dyer and Leblanc.

      As they ran, Dyer stopped and asked Gustave and the

defendant why "that kid" was bleeding, and Gustave responded,

"Because we just stabbed them.    We just stabbed them."    The

defendant said, three times, "I'm on probation."     He also said,

"I can't believe this."     Dyer was running a little behind the

defendant, and as they ran, a resident who was out on a porch

heard the defendant say, "Hurry the fuck up.     I just stabbed

three people, three guys, and I'm going to jail for three

years."     The defendant, Gustave, Dyer, and Leblanc ultimately

ended up at Leblanc's house in Somerville.

      In the meantime, McCormack and his wife, Elizabeth

McCormack, who is Tighe's mother, tried to tend to the two prone

victims; each recognized both Sullivan and Stevens.     A telephone

call was made to 911.     Sullivan and Stevens were taken to the

hospital.    Sullivan died within one hour, having received at

least seven stab wounds; he was sixteen years of age.      Stevens

lost his kidney and spent thirty days in the hospital; he was
                                                                     6


seventeen years of age.2

     2.    Procedural history.   On September 9, 2004, a Middlesex

County grand jury returned indictments against the defendant and

Gustave, charging each of them with murder in the first degree

of Sullivan (count one); armed assault with intent to murder

Stevens and Tighe (counts two and three); assault and battery of

Stevens by means of a dangerous weapon, causing serious bodily

injury (count four); and assault and battery of Tighe by means

of a dangerous weapon (count five).     The defendant's case was

severed from Gustave's before trial.    See note 5, infra.   The

jury found the defendant guilty of murder in the first degree of

Sullivan on the theory of extreme atrocity or cruelty, as well

as on counts four and five, charging assault and battery by

means of a dangerous weapon of Stevens and Tighe, respectively.3

On the charges of armed assault with intent to murder Stevens

and Tighe, the jury convicted the defendant of the lesser

included offense of assault by means of a dangerous weapon.4       The


     2
         The defendant and Gustave were in their mid-twenties.
     3
       The jury did not find the defendant guilty of deliberately
premeditated murder.
     4
       The defendant was sentenced to life imprisonment without
parole on the murder indictment; a term of from nine to ten
years on count four to be served concurrently with the life
sentence; and, on count five, a term of from seven to eight
years to be served concurrently with the life sentence and from
and after the sentence on count four. Counts two and three were
placed on file with the defendant's consent.
                                                                       7


defendant filed a timely appeal in this court.5

     In November, 2007, the defendant filed, pro se, his

posttrial motion in the Superior Court.6    Thereafter, the

defendant's appeal to this court was stayed while the defendant

pursued his posttrial motion.    The trial judge heard the motion,

taking evidence on the defendant's claim of ineffective

assistance of counsel.    After that evidentiary hearing, the

judge denied the defendant's posttrial motion.       The defendant's

appeal from the denial of that motion has been consolidated with

his direct appeal of his convictions.

     Discussion.   1.    Manslaughter instruction.   The defendant

argues that the judge committed reversible error in declining to

instruct the jury on voluntary manslaughter as a lesser included

offense of the murder charge.    He claims that, as the judge

"found" in ruling on the defendant's motion for a new trial,



     5
       The parties assert that, some months after the defendant's
trial and convictions, Gustave pleaded guilty to murder in the
second degree and to the other charges against him.
     6
       The motion is entitled, "motion for required finding of
not guilty, or guilty of a lesser included offense, or lesser
degree of guilt pursuant to [Mass. R. Crim. P.] 25 (b) (2)[, 378
Mass. 896 (1979),] and reversal of the imposition of sentence of
first degree life pursuant to [Mass. R. Crim. P.] 28[, 378 Mass.
898 (1979)]" (posttrial motion). The trial judge treated the
defendant's posttrial motion as a combined motion for a required
finding of not guilty under Mass. R. Crim. P. 25 (b), and a
motion for a new trial under Mass. R. Crim. P. 30, as appearing
in 435 Mass. 1501 (2001). We consider the substance of the
posttrial motion in the same manner.
                                                                   8


there was evidence that Sullivan had jumped on the defendant's

back and the defendant pushed him off.7   He then asserts that

this evidence would permit the jury to find that the defendant,

in stabbing Sullivan thereafter, was acting in a heat of passion

on reasonable provocation or induced by sudden combat.   We

disagree.8

     The defendant is correct that if any view of the evidence



     7
       The defendant contends that the judge found as a fact that
Danielle Leblanc saw Ryan Sullivan jump on the defendant's back.
The judge made no such finding. In his posttrial ruling, the
judge summarized and discussed Leblanc's trial testimony, and
described Leblanc as having testified that she saw "a third man"
jump on Spinucci's back. The judge referred to Leblanc's
"testimony that she saw Sullivan jump on Spinucci's back before
Spinucci thr[e]w him off" (emphasis added). However, in her
testimony, Leblanc never identified the man. Nor could the
judge have made a finding that Leblanc saw Sullivan jump on the
defendant's back, given that at the evidentiary hearing held on
the defendant's posttrial motion, the only person who was sworn
and testified as a witness was the defendant's trial counsel,
whose testimony did not refer at any point to Leblanc's alleged
observation.
     8
       During the charge conference at trial, the judge rejected
the defendant's request for a manslaughter instruction, stating
that he did not think the evidence supported such an
instruction. In making the request for the instruction,
however, the defendant's counsel did not mention Leblanc's
testimony about seeing a person jump on the defendant's back;
counsel focused only on the defendant's alleged heat of passion
caused by William Tighe's attack on the defendant's girl friend,
Claudine Dyer. In his ruling on the defendant's posttrial
motion, the judge concluded that no manslaughter instruction was
called for because the physical contact between the defendant
and Sullivan as described by Leblanc was not sufficient to
warrant an instruction, even if the contact had been initiated
by Sullivan. We conclude that an instruction on voluntary
manslaughter was not warranted but for different reasons.
                                                                    9


would permit a finding of voluntary manslaughter, an instruction

on this lesser offense must be given.   See, e.g., Commonwealth

v. Garabedian, 399 Mass. 304, 313 (1987).   It is also the case

that such an instruction cannot be refused even if the evidence

on which the claim for a manslaughter instruction is based is

not "of a character to inspire belief" (citation omitted).    See

id.   But an instruction on voluntary manslaughter is only

warranted "if there is evidence of provocation deemed adequate

in law to cause the accused to lose his self-control in the heat

of passion, and if the killing followed the provocation before

sufficient time had elapsed for the accused's temper to cool."

Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006), quoting

Commonwealth v. Andrade, 422 Mass. 236, 237 (1996).   The jury

also must be able to infer from the evidence "that a reasonable

person would have become sufficiently provoked and that, in

fact, the defendant was provoked," and that "there is a causal

connection between the provocation, the heat of passion, and the

killing" (quotations and citations omitted).   Garabedian, supra.

      The defendant does not contend that Leblanc identified the

person she saw jump on the defendant's back, but argues that by

process of elimination, the unidentified person had to have been

Sullivan, because Leblanc identified the person as a male and

stated that the male was not McCormack; the person was not

Tighe, because Tighe ran back to his home after being stabbed by
                                                                   10


the defendant; and the person was not Stevens because, the jury

could find, Gustave previously had "stabbed and disabled"

Stevens.   To this, the defendant adds that he already was upset

by Tighe's attack on his girl friend that had taken place only

seconds before, and that if the jury were to find that the

defendant had attacked Sullivan,9 Sullivan's physical assault of

the defendant independently provoked his emotions so that when

the defendant attacked Sullivan, he was acting in the heat of

passion due to provocation or sudden combat.    See Commonwealth

v. Hinds, 457 Mass. 83, 90-91 (2010), quoting Commonwealth v.

Ruiz, 442 Mass. 826, 838-839 (2004) ("provocation must come from

the victim").

     The defendant's argument is defeated by an absence of

evidentiary support.   The evidence from which the jury could

find that the defendant stabbed Sullivan came from three

witnesses:   Dyer, McCormack, and Stevens.   Each of the three

testified to seeing the defendant standing or crouching next to

or over Sullivan's body, inferably engaged in stabbing him.10


     9
       At trial, the defendant's theory of the case was that the
defendant stabbed Tighe, but played no role in Gustave's attack
on Stevens or Sullivan -- that Gustave was acting entirely on
his own.
     10
       Claudine Dyer testified that she saw the defendant and
Gustave standing next to a person lying on the ground and
repeatedly moving their hands downward toward the body --
testimony that permits the inference that the defendant and
Gustave were engaged in stabbing the person -- but she did not
                                                                   11


But none of them testified to seeing anyone jump on the

defendant's back or indeed interact physically with the

defendant before each saw the defendant standing over and

stabbing Sullivan.   Leblanc was the sole source of evidence

concerning someone jumping on the defendant's back.   She

testified that she saw the person jump on the defendant's back

and saw the defendant push the person off.   At no point did she

testify to seeing any further interactions between the defendant

and the person he had pushed off his back.   Rather, all she

stated was that she had observed the person jump on the

defendant's back either while or soon after she kicked the body

of a male11 lying on the ground on Warwick Street, and that this

incident had happened around the time that she began to run down

Warwick Street away from the body on the ground and she saw

McCormack running on Warwick Street toward her.12



identify the person as Sullivan. McCormack and Stevens both
identified the defendant as the person they saw standing over
and, inferably, stabbing Sullivan.
     11
       Leblanc did not identify the male whom she saw lying on
the street.
     12
       Leblanc's testimony on direct examination suggested that
she saw someone jump on the defendant's back right before
Gustave ran by her and urged her to run and she saw Michael
McCormack running towards her. On cross-examination and
redirect, Leblanc suggested that she witnessed the jumping
incident after Gustave ran by and she saw McCormack. In any
event, the reasonable inference is that Leblanc saw the person
jump on the defendant's back right around the time that she
began to run and saw McCormack on Warwick Street.
                                                                  12


     The jury, of course, were free to believe or disbelieve, in

whole or in part, the testimony of each witness.   See, e.g.,

Commonwealth v. Hawkesworth, 405 Mass. 664, 675 (1989).

Accordingly, the jury in theory could have credited Leblanc's

testimony that she saw the body of only one person lying on the

ground, and that the body she was kicking was that of Stevens,

not Sullivan, and infer that the person who jumped on the

defendant's back was Sullivan.13   But the jury were not entitled

to attribute to any witness, including Leblanc, a statement or

statements that the witness did not make.   See Commonwealth v.

McInerney, 373 Mass. 136, 144 (1977).   Given the state of the

evidentiary record, with no evidence of contact between the

defendant and Sullivan following the alleged jump on the

defendant's back, there simply was no factual basis on which it

could be found that the defendant stabbed Sullivan in an

emotionally heated response to the physical interaction between

the two.   Put another way, the evidence necessary to support the

essential causal link between any heat of passion on the

defendant's part resulting from Sullivan's jumping on his back,



     13
       If the jury were to make such findings, they would be
required to reject the testimony of Dyer and McCormack that
there were two bodies lying on Warwick Street at the time
McCormack ran onto the scene, and the testimony of McCormack and
Stevens that one of those prone bodies belonged to Sullivan --
because obviously, if Sullivan were then on the ground, he could
not have been the person who jumped on the defendant's back.
                                                                     13


and the defendant's stabbing of Sullivan, see Garabedian, 399

Mass. at 313, was missing.     The judge did not err in declining

to include the charge on voluntary manslaughter in his

instructions to the jury.

    2.     Instruction on malice in connection with joint venture

murder charge.    With respect to the charge of murder in the

first degree, the Commonwealth's theory at trial was that the

defendant and Gustave committed the crime as part of a joint

venture.    More particularly, the Commonwealth argued that the

defendant acted as a principal by stabbing Sullivan repeatedly

with his knife, or as a joint venturer with Gustave who himself

stabbed Sullivan repeatedly, or both.     The defendant's theory at

trial, see note 9, supra, was that Gustave alone attacked

Sullivan -- i.e., Gustave was the principal in the crime -- and

that the defendant did not participate in that attack or share

Gustave's intent, but actually tried to stop Gustave from

continuing with that attack.    The judge instructed the jury that

the Commonwealth's theory was that the defendant committed the

crime of murder as part of a joint venture, and explained what

the Commonwealth had to prove in order to establish that the

defendant was guilty under this theory.    He also separately

instructed on the elements of murder in the first degree.       In

his instruction on the concept of malice in relation to murder

under the theory of extreme atrocity or cruelty, he told the
                                                                  14


jury:

         "Malice, for this theory of murder, also includes an
    intent to do an act, that in the circumstances known to the
    defendant, a reasonable person would have known created a
    plain and strong likelihood that death would follow.

         "Under this third meaning of malice, you must
    determine whether based on what the defendant actually knew
    at the time that he acted, a reasonable person would have
    recognized that such conduct created a plain and strong
    likelihood that death would result.

         "In determining whether the Commonwealth has proven
    this third meaning of malice, you must consider the
    defendant's actual knowledge of the circumstances at the
    time that he acted. Where there is evidence that a person
    brought a dangerous weapon to a scene and used the
    dangerous weapon on another, you may consider that evidence
    as relevant in proving malice" (emphasis added).

    The defendant's argument on appeal is not entirely clear,

but appears to be that it was error for the judge to include

this instruction concerning use of a dangerous weapon because,

insofar as the Commonwealth was proceeding on a joint venture

theory, the jury could infer the malice necessary for murder on

the defendant's part from Gustave's use of a dangerous weapon,

without any proof that the defendant knew Gustave was armed.

Put another way, the defendant appears to claim that in the

joint venture context presented by the Commonwealth, it was

necessary to instruct the jury that the Commonwealth must prove

that the defendant knew Gustave had a knife before they might

infer malice on the defendant's part from Gustave's intentional

use of that knife.
                                                                  15


    The argument fails.   First, the instruction that the judge

gave is most reasonably understood as referring to defining

malice directly only in connection with the defendant.    Thus,

the reference in the quoted instruction to a "person" who brings

and uses a dangerous weapon follows directly after the direction

that the jury must consider the defendant's "actual knowledge"

of the circumstances, suggesting that the "person" being

referred to is the defendant.   It seems highly unlikely the jury

would interpret this instruction as indicating that if they

found that Gustave had brought and used a dangerous weapon, they

might infer from that finding the existence of malice on the

defendant's part.   Second, even if one were to conclude that the

jury might understand the dangerous weapon reference in this

instruction as meaning they could somehow consider Gustave's use

of a dangerous weapon in considering the element of malice on

the defendant's part, the judge's joint venture instructions --

given both as part of the judge's final charge and again in

response to a jury question -- specifically told the jury that

if the other person in the joint venture actually committed the

substantive crime, the jury must find that the defendant himself

had or shared the intent necessary for that crime, thus

indicating that the jury must consider the defendant's intent on

its own, not as an automatic transfer of the intent of the

coventurer.   These instructions were correct.
                                                                     16


    The defendant contends that to prove joint venture first-

degree murder under a theory of extreme atrocity or cruelty

where a dangerous weapon is involved, the Commonwealth should be

required to prove that the joint venturer both knew the

principal had a dangerous weapon and shared the principal's

intent to commit the murder in an atrocious or cruel way.        That

is not the law.   Where use of a weapon is not an element of the

crime -- and it is not an element of murder in the first degree

-- there is no requirement for the Commonwealth to prove

knowledge on the part of a joint venturer that the principal was

armed.   See Commonwealth v. Rosa, 468 Mass. 231, 245 (2014),

citing Commonwealth v. Britt, 465 Mass. 87, 100 (2013).     In

addition, in a case of joint venture first-degree murder

committed with extreme atrocity or cruelty, malice alone defines

the intent that the Commonwealth must prove.    See Commonwealth v

Chaleumphong, 434 Mass. 70, 79-80 (2001) (intent necessary for

murder in first degree under theory of extreme atrocity or

cruelty is malice alone; "[i]f the Commonwealth has no burden to

prove that a defendant who acted alone knew that his acts were

extremely atrocious or cruel, then it has no such burden where

the defendant acts in a joint venture"); Commonwealth v.

Cunneen, 389 Mass. 216, 227 (1983) (same); Commonwealth v.

Monsen, 377 Mass. 245, 254-255 (1979) (same).    Although in

Commonwealth v. Berry, 466 Mass. 763, 777-778 (2014) (Gants, J.,
                                                                   17


concurring), and Commonwealth v. Riley, 467 Mass. 799, 828

(2014) (Duffly, J., concurring), the concurring opinions

suggested that it may be time to revisit the intent element of

murder in the first degree committed with extreme atrocity or

cruelty, this is not the case in which to do so.   There was

significant evidence indicating that the defendant himself was

engaged in repeatedly stabbing the victim Sullivan, that

Sullivan struggled to avoid the harm being inflicted, and that

the stabbing wounds he received would have been painful.     The

judge properly instructed the jury under the principles of law

that governed at the time; we leave to another day the question

whether to change or modify those governing legal principles.

    3.   Evidence of defendant's knowledge that his joint

venturer was armed with knife.   Over the defendant's objection,

the judge permitted Leblanc to testify that while she was

walking with Dyer, Gustave, and the defendant to the fireworks,

she asked Gustave for "the knife" in case she ran into anyone

she "had problems with," and he said, "No."   She also testified

that she did not ask whether Gustave had a knife at that time,

but assumed that he did.   At the conclusion of Leblanc's

testimony, the judge gave a limiting instruction to the jury to

the effect that if they found that Gustave had stated that he

possessed a knife and that the defendant had heard him make the

statement, the jury could consider that evidence as relevant
                                                                  18


only to the issue whether the defendant knew that Gustave was

armed with a knife.14   The defendant argues that despite the

limiting instruction, Leblanc's testimony about her exchange

with Gustave was admitted for its truth, and constituted

improper hearsay evidence.

     There was no error.   The issue whether the defendant knew

Gustave was carrying a knife was clearly relevant in this case,

if for no other reason than that the Commonwealth's theory was

that the two men were acting together as part of a joint

venture, and that the crimes charged relating to Stevens and

Tighe included as an element the possession or use of a

dangerous weapon.   See, e.g., Commonwealth v. Lee, 460 Mass. 64,

69-70 (2011), citing Commonwealth v. Claudio, 418 Mass. 103, 111

(1994), overruled on another ground by Britt, 465 Mass. at 99

(to convict defendant as joint venturer rather than principal of

crime involving use or possession of dangerous weapon,

Commonwealth must prove defendant knew his coventurer was armed

     14
       The limiting instruction was actually more favorable to
the defendant than the evidence dictated, in that there was no
evidence before the jury that Gustave said he had a knife:
Leblanc testified that she did not ask Gustave (and
inferentially he did not state) whether he had a knife, but
rather that she assumed he did. Accordingly, the jury, if they
were following the judge's limiting instruction literally, could
not have inferred from Leblanc's testimony that Gustave stated
he had a knife, and therefore could not have inferred that the
defendant had knowledge that Gustave was carrying a knife. We
will assume, however, that the jury may have understood Leblanc
as indicating that Gustave (inferentially) stated he had a
knife.
                                                                   19


with dangerous weapon).   Contrary to the defendant's suggestion,

however, the evidence was not admitted to prove that in fact

Gustave had a knife.   Contrast, e.g., Commonwealth v. Lowe, 391

Mass. 97, 104-105, cert. denied, 469 U.S. 840 (1984) (victim's

statements to others about facts of past events inadmissible

under state of mind exception to hearsay rule).   Rather, the

judge's limiting instruction specifically restricted the

relevance and the jury's use of the statement to the defendant's

state of knowledge and, as such, it was not hearsay.     See

Commonwealth v. Romero, 464 Mass. 648, 652 n.5 (2013).     See also

Mass. G. Evid. § 801(c) note (2015).

    4.   Sufficiency of evidence of defendant's guilt on charges

relating to Stevens.   The defendant was found guilty of assault

and battery by means of a dangerous weapon causing serious

bodily injury to the victim Stevens.   The verdict was

necessarily premised on a determination by the jury that the

defendant was acting solely as a joint venturer with Gustave,

because the undisputed evidence was that Stevens was stabbed

only by Gustave.

    As he did at the close of the Commonwealth's case when he

moved for a required finding of not guilty, the defendant

challenges the sufficiency of the evidence that he was guilty of

this crime as a joint venturer.   We review the evidence to

determine whether a rational juror could conclude beyond a
                                                                     20


reasonable doubt that the defendant knowingly participated in

the crime at issue with the requisite intent.    See Commonwealth

v. Marrero, 459 Mass. 235, 247 (2011), quoting Commonwealth v.

Zanetti, 454 Mass. 449, 468 (2009).     See generally Commonwealth

v. Latimore, 378 Mass. 671, 677-678 (1979).

     The evidence permitted a reasonable juror to find that the

defendant and Gustave were close friends; that the two had come

to the scene together with their respective girl friends; that

the two took out and displayed their knives at the same time to

confront the victim Tighe; and that the two chased the three

victims -- Tighe, Stevens, and Sullivan -- and they both joined

in physically attacking Sullivan.     The attacks on all the

victims took place in a very short period of time and at least

the attacks on Sullivan and Stevens took place in a

circumscribed physical area:   when the police arrived, Stevens

and the victim Sullivan were lying on the ground within a few

feet of each other.15   Considered as a whole, the evidence was

sufficient to warrant the jury's guilty verdict on this charge.

See Latimore, 378 Mass. at 677-678.    The defendant's motion for

a required finding of not guilty was properly denied.16


     15
       McCormack also testified that Sullivan and Stevens were
lying on the ground one or two feet apart when McCormack first
saw them.
     16
       In connection with this charge relating to Stevens, the
judge did not instruct the jury that the Commonwealth must prove
                                                                   21


    5.   Relief under G. L. c. 278, § 33E.    The defendant argues

that relief under G. L. c. 278, § 33E, is warranted here because

of the prosecutor's closing argument -- the defendant claims

improper appeals to emotion and that the prosecutor argued facts

not in evidence, errors in the judge's instructions, and

mitigating factors.    We have thoroughly reviewed the entire

record of this case.   We conclude that the prosecutor's closing

was not improper and find no reason that would warrant relief

under G. L. c. 278, § 33E.

                                     Judgments affirmed.




the defendant knew that Gustave was armed with a knife. The
instruction should have been given. See, e.g., Commonwealth v.
Lee, 460 Mass. 64, 69-70 (2011). There was no objection raised
at trial, however, and the question therefore is whether the
failure of the judge to give such an instruction created a
substantial risk of a miscarriage of justice. See Commonwealth
v. Bolling, 462 Mass. 440, 452 (2012). We agree with the
Commonwealth that there was no such likelihood. There was
strong circumstantial evidence that the defendant knew Gustave
was armed with a knife at the time he stabbed Stevens, including
the conversation between Leblanc and Gustave relating to
Gustave's knife that the defendant could have overheard while
they were all walking toward the fireworks; and evidence
permitting the inference that the defendant saw Gustave holding
a knife when they both confronted Tighe preceding Gustave's
attack on Stevens. See Commonwealth v. Kilburn, 426 Mass. 31,
35 & n.7 (1997), S.C., 438 Mass. 356 (2003) (knowledge that
accomplice had weapon may be shown from circumstantial
evidence).
