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SJC-11581

                COMMONWEALTH   vs.   PEDRO VALENTIN.



       Suffolk.       October 6, 2014. - December 8, 2014.

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


Constitutional Law, Assistance of counsel. Due Process of Law,
     Assistance of counsel. Homicide. Practice, Criminal,
     Assistance of counsel, Capital case, New trial. Witness,
     Impeachment.



     Indictments found and returned in the Superior Court
Department on October 23, 1991.

     Following review by this court, 420 Mass. 263 (1995), a
motion for a new trial, filed on January 6, 2012, was considered
by Patrick F. Brady, J.

     A request for leave to appeal was allowed by Gants, J., in
the Supreme Judicial Court for the county of Suffolk.


     Dennis Shedd for the defendant.
     Paul B. Linn, Assistant District Attorney, for the
Commonwealth.


    CORDY, J.     The defendant's conviction of murder in the

first degree was affirmed by this court in 1995.       See
                                                                    2


Commonwealth v. Valentin, 420 Mass. 263 (1995).    In 2012, he

filed a motion for a new trial which was denied.    The case is

now before us pursuant to an order of a single justice of the

county court allowing, in part, the defendant' s application for

leave to appeal from that denial under G. L. c. 278, § 33E.

    We conclude that trial counsel did not render ineffective

assistance in failing to impeach a witness as to one of his

statements, where counsel's decision was not manifestly

unreasonable and, in any event, did not so impact the outcome of

the trial as to create a substantial risk of a miscarriage of

justice.   We also conclude that the substitution of trial

counsel's partner to stand in for her during jury deliberations

was not one of structural error warranting a new trial absent a

showing of prejudice.   Further, considering the claim as one of

ineffective assistance of counsel, we conclude that the

defendant did not receive constitutionally deficient assistance

or suffer any appreciable prejudice as a result of the

substitution.   Accordingly, the defendant's motion for new trial

was properly denied.

    Background.    In October, 1991, the defendant was indicted

on charges of murder in the first degree, G. L. c. 265, § 1, for

the killing of Timothy Bond in July, 1991, and for assault and

battery by means of a dangerous weapon, G. L. c. 265, § 15A (b).
                                                                       3


    1.      Evidence at trial.   The facts of this case are set

forth in our decision in Valentin, 420 Mass. at 265-266.      In

summary, in July, 1991, Timothy Bond stole cocaine from Angel

Ruidiaz, who was selling drugs on behalf of the defendant's

brother, Simon.     Though Ruidiaz paid Simon for the stolen drugs,

Simon stated that he was "still going to get" Bond.

    Later that month, Bond went to Metcalf Court in the Jamaica

Plain section of Boston with his friend Kenneth Stokes and

joined a group of others who were sitting on a wall, talking and

drinking.    Shortly thereafter, Simon and the defendant

approached Bond from behind and Simon shot Bond in the back of

the head.    Bond then fell to the ground and Simon shot him once

more in the head.     Stokes testified that the defendant

subsequently stomped on the victim's head, saying, "Die,

motherfucker," and then fled with Simon.      While running away,

the defendant said to Simon, "Man, put the gun away, the police

are coming."

    At trial, the defendant's primary defense was alibi.          He

called three witnesses to testify that he was elsewhere playing

dominoes at the time of the shooting.      The Commonwealth called

four witnesses (including Stokes) who were present at the

shooting.     Each of them testified that the defendant "kicked" or

"stomped" on Bond's head after Simon fired the second shot.

Only Stokes testified that the defendant said, "Die,
                                                                        4


motherfucker," when he did so.      The defense cast doubt on the

credibility of these witnesses, two of whom acknowledged that

when they spoke to the police shortly after the incident, they

did not say that the defendant had stomped on Bond.       Stokes was

extensively cross-examined but was not questioned about his

initial failure to tell the police about the defendant's "Die,

motherfucker" statement.

       2.    Role of trial counsel's law partner.   On the second day

of jury deliberations, trial counsel, Frances Robinson, asked

permission from the judge to have her law partner stand in for

her.       Her partner had not done any work on the case, but had

discussed it with Robinson.      The judge granted this request.

The judge did not seek the defendant's consent to the

substitution on the record.1

       While substitute counsel was standing in, the jury asked to

be reinstructed on both joint venture and premeditation.       With

substitute counsel present, the judge provided supplemental

instructions on both topics.      After the judge provided these

reinstructions, substitute counsel asked to preserve any

objections that Robinson had made previously to the joint

venture and premeditation instructions in the main jury charge.

The judge assured substitute counsel that he was not waiving any

       1
       In her affidavit filed in connection with the new trial
motion, trial counsel stated that she discussed the substitution
of counsel with the defendant.
                                                                    5


of these objections.   Later that afternoon the jury found the

defendant guilty as a joint venturer in premeditated murder, and

not guilty of assault and battery by means of a dangerous

weapon.

    In January, 2012, the defendant filed a motion for a new

trial, which was denied without a hearing on February 6, 2013.

Later that month, the defendant filed a petition for leave to

appeal under G. L. c. 278, § 33E, and on August 1, 2013, a

single justice allowed the petition as to two of the presented

issues:   first, whether the defendant's trial counsel rendered

ineffective assistance by failing to impeach Stokes's testimony

about the defendant's statement made at the scene of the murder;

and second, whether the defendant was deprived of counsel when

his trial counsel's law partner stood in during jury

deliberations.

    Discussion.    As this case comes to us on appeal from the

denial of a motion for a new trial and alleges errors that are

grounded in the record that was before this court in its plenary

review, we review it under the standard of "substantial risk of

a miscarriage of justice."   Commonwealth v. Randolph, 438 Mass.

290, 297 (2002).   A substantial risk of a miscarriage of justice

exists when we have a "serious doubt whether the result of the

trial might have been different had the error not been made."

Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass.
                                                                   6


72 (2005), quoting Commonwealth v. LeFave, 430 Mass. 169, 174

(1999).   "Errors of this magnitude are extraordinary events and

relief is seldom granted. . . . Such errors are particularly

unlikely where, as here, the defendant's conviction . . . has

undergone the exacting scrutiny of plenary review under § 33E"

(citation omitted).   Randolph, supra at 297.   However, because

the single justice permitted the defendant leave to appeal from

the denial of his motion for a new trial, we review the issues

raised.

    1. Impeachment of Stokes.    We turn first to whether the

defendant was denied effective assistance of counsel as a result

of trial counsel not impeaching Stokes's testimony attributing

the statement, "Die, motherfucker," to the defendant.    This

testimony had obvious relevance to the defendant's shared intent

with his brother in the murder of Bond.   While at trial Stokes

testified that the defendant had said this, he had not told this

to the police who interviewed him immediately after the

shooting, saying then only that the perpetrators "ran away."

    In Strickland v. Washington, 466 U.S. 668, 686 (1984),

quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970), the

United States Supreme Court recognized that the right to counsel

in a criminal case is the right to "effective assistance of

counsel."   To establish a claim of constitutional

ineffectiveness, the defendant must establish that his
                                                                   7


attorney's performance fell "below an objective standard of

reasonableness" such that there is a "probability sufficient to

undermine confidence in the outcome."    Id. at 688, 694.   The

court emphasized that "[j]udicial scrutiny of counsel's

performance must be highly deferential" and that "the distorting

effects of hindsight" must be avoided in evaluating a claim made

after a trial in which attorney's defense strategy was proved

unsuccessful.   Id. at 689.

    When evaluating a claim of ineffective assistance of

counsel arising under both the Sixth Amendment to the United

States Constitution and art. 12 of the Declaration of Rights of

the Massachusetts Constitution, we ask whether there has been a

"serious incompetency, inefficiency, or inattention of counsel -

- behavior of counsel falling measurably below that which might

be expected from an ordinary fallible lawyer -- and, if that is

found, then, typically, whether it has likely deprived the

defendant of an otherwise available, substantial ground of

defence."   Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

See Commonwealth v. Sylvain, 466 Mass. 422, 437 (2013);

Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006).

Essentially, "[t]he defendant must demonstrate that 'better work

might have accomplished something material for the defense.'"

Acevedo, 446 Mass. at 442, quoting Commonwealth v. Satterfield,

373 Mass. 109, 115 (1977).    Moreover, this court has generally
                                                                      8


shown deference to the strategic decisions made by attorneys,

noting that "[a] strategic or tactical decision by counsel will

not be considered ineffective assistance unless that decision

was 'manifestly unreasonable' when made."     Acevedo, supra at

442, quoting Commonwealth v. Adams, 374 Mass. 722, 728 (1978).

See Commonwealth v. Fisher, 433 Mass. 340, 354 (2001);

Commonwealth v. White, 409 Mass. 266, 272 (1991) ("In cases

where tactical or strategic decisions of the defendant's counsel

are at issue, we conduct our review with some deference to avoid

characterizing as unreasonable a defense that was merely

unsuccessful").

    Although the failure to pursue an "obviously powerful form

of impeachment" can theoretically rise to the level of

unreasonableness that would constitute ineffective assistance,

we have repeatedly stated that, generally, the failure to

impeach a witness does not, on its own, constitute ineffective

assistance.   Fisher, 433 Mass. at 357.   See Commonwealth v.

Jenkins, 458 Mass. 791, 805-808 (2011), citing Commonwealth v.

Bart B., 424 Mass. 911, 916 (1997).     Ultimately, this is because

the "[i]mpeachment of a witness is, by its very nature, fraught

with a host of strategic considerations to which we will, even

on § 33E review, still show deference" and "it is speculative to

conclude that a different approach to impeachment would likely

have affected the jury's conclusion."     Fisher, supra.   Here, we
                                                                    9


cannot say that trial counsel's decision not to impeach Stokes

on the statement in question was "manifestly unreasonable" such

that her assistance was ineffective (citation omitted).

Acevedo, 446 Mass. at 442.

    In an affidavit submitted in connection with the

defendant's motion for a new trial, trial counsel explains:    "I

did cross examine . . . Stokes extensively on his not having

made statements consistent with the testimony he gave at trial.

In reviewing the transcript, I believe that I did not cross

examine him specifically on not having said '[D]ie,

motherfucker' because I had gotten the point across that his

statement was not the same.   I do not believe that further cross

examination on the statement . . . would have helped the defense

because I believe it would have highlighted it."   Having focused

considerable attention on proving that the defendant was not

Simon's companion at the incident in pursuit of an alibi

defense, and having impeached the credibility of Stokes based on

various differences between his original statement to police and

his testimony, trial counsel's decision not to impeach Stokes on

whether he heard the defendant make this particular statement,

in order to avoid highlighting it, was not manifestly

unreasonable.

    However, the defendant notes that trial counsel did end up

repeating the "Die, motherfucker" statement in her closing in an
                                                                    10


attempt to discredit it, and did not discuss alibi until the end

of her argument.    The manner in which the trial ultimately

played out after Stokes's cross-examination is of little weight

in our analysis of whether it was "manifestly unreasonable" for

counsel to have cross-examined Stokes the way she did at the

time of his testimony.    This is particularly so where she

conducted a thorough impeachment of Stokes based on a series of

inconsistent statements, thereby casting doubt on the veracity

of his over-all testimony.

    Even if it was unreasonable for counsel not to impeach

Stokes's specific statement, we cannot say that this error led

to a substantial risk of a miscarriage of justice.    There is no

question that the "Die, motherfucker" statement was evidence

that went directly to the question whether the defendant had the

necessary mental state to support a finding of guilt as a joint

venturer.    The defendant cites to Commonwealth v. Reaves, 434

Mass. 383, 391-392 (2001), arguing that a conviction of murder

in the first degree requires a finding that he had to share the

mental state of "intent to kill and premeditation" with the

principal.    He further contends that if Stokes's statement had

been more thoroughly discredited through additional impeachment,

the Commonwealth could not have convinced the jury that the

defendant had the requisite mental state to support his

conviction.   We disagree.
                                                                    11


     In Reaves, this court stated that the "jury may infer the

requisite mental state [for a joint venturer] from the

defendant's knowledge of the circumstances and subsequent

participation in the offense."   Id. at 392, quoting Commonwealth

v. Longo, 402 Mass. 482, 486 (1988).2   Accordingly, in the

instant case, even though the specific statement was not

impeached, there was substantial additional evidence from which

the jury could have inferred that the defendant shared Simon's

intent to kill the victim, including evidence that the defendant

(1) knew that Simon was angry at the victim over a drug deal

gone bad; (2) knew that Simon had a gun; (3) appeared to be

acting as a lookout before the crime; (4) arrived with and stood

with the shooter during the commission of the crime; and (5)

fled with and urged the shooter to conceal the gun.3

     The defendant points to several cases in which this court

did conclude that failure to pursue an avenue of witness

impeachment could constitute ineffective assistance.     However,

each of these cases is appreciably different from the instant

case.    For example, in Commonwealth v. Ly, 454 Mass. 223, 229-

     2
       We also noted this point in our 1995 decision upholding
the defendant's conviction. See Commonwealth v. Valentin, 420
Mass. 263, 266-267 (1995).
     3
       The jury also heard the testimony of three witnesses other
than Stokes that the defendant kicked or stomped on the victim's
head as he fled the scene with Simon, although in his testimony
the medical examiner did not mention any injuries to the victim
consistent with being kicked or stomped on the head.
                                                                   12


231 (2009), the defendant's primary defense to a charge of

indecent assault and battery was that the complainant had called

him multiple times after having sexual relations with him,

saying that she wanted to marry and move away with him, and that

she did not bring a complaint until after he refused.     The

attorney in Ly failed to summon these crucially relevant

telephone records and therefore was unable to impeach the

complainant when she denied ever calling the defendant after the

incident.   Id. at 229.   Accordingly, this court found that the

failure of counsel to impeach the complainant using telephone

records was ineffective assistance, noting that the "centrality

of the telephone calls to the only issue in the case is

apparent, and should have been apparent to trial counsel before

the case began."   Id. at 230.   See Commonwealth v. Nwachukwu, 65

Mass. App. Ct. 112, 116-117 (2005) (ineffective assistance of

counsel where attorney failed to obtain records that

contradicted complainant's testimony and therefore failed to

impeach her though her testimony and credibility went to heart

of case).

    Unlike in Ly where there was only one disputed issue that

depended completely on the complainant's credibility, there were

several disputed issues here other than Stokes's credibility,

and each could have been established in a variety of ways.

Whether the defendant actually made the statement in question
                                                                      13


was not the linchpin of the defense.    Defense counsel presented

several alibi witnesses, who, if believed, would have rendered

anything that Stokes said about the shooting incident

irrelevant.   Moreover, defense counsel did attempt to impeach

Stokes's credibility and the credibility of the other

eyewitnesses with prior inconsistent statements about what

occurred.   Even if the jury did not believe the alibi witnesses,

they still had reason to doubt the testimony of the

Commonwealth's witnesses as to what the defendant did and said.

Where this was not a single issue case like Ly, the failure to

impeach here is not so obviously unreasonable.

       The defendant also cites to Commonwealth v. Sena, 429 Mass.

590 (1999), S.C., 441 Mass. 822 (2004).      In Sena, although other

witnesses placed the defendant at the scene of the crime, only

one saw the defendant shoot the victim.      Id. at 592.   Prior to

trial, the witness had made a statement to a defense

investigator that contradicted his trial testimony.        Id. at 591-

593.   After already having been admonished twice by the judge to

comply with a pretrial discovery order, defense counsel gave

prosecutors a report of the eyewitness's earlier statement on

the final day of trial.    Id. at 592-593.   Given the judge's

previous warnings to comply with the discovery order and defense

counsel's extremely untimely provision of the report, the judge

did not permit defense counsel to question the investigator
                                                                      14


regarding the report and defense counsel was unable to use it to

impeach the eyewitness himself.    Id. at 593-594.   Ultimately,

this court ordered a new trial, as, given counsel's missteps, we

could not be "substantially confident that, if the error had not

been made, the jury verdict would have been the same," id. at

595, quoting Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3

(1998), as the preclusion of the reports "had a tangible effect

on [the defendant's] defense."    Id.

    Sena is readily distinguishable from the present case.         In

that case, the attorney's error was not merely a strategic

decision.   The ultimate prejudice to the defendant arose from

his attorney's failure to comply with a discovery order.       As a

consequence, defense counsel was unable to use the

investigator's report to cross-examine the eyewitness or to

examine the investigator.   Id. at 594-595.     Although the

eyewitness had already been impeached and some of the facts from

the report otherwise had been admitted in evidence, the addition

of the investigator's report would have permitted the jury to

completely reject the sole eyewitness's testimony rather than

just call it into question.   See id. at 595.

    Finally, the defendant analogizes his case to a series of

United States Supreme Court cases under the confrontation clause

of the Sixth Amendment in which a judge's refusal to allow

impeachment of a witness was sufficiently prejudicial to require
                                                                    15


a new trial.   However, these cases are not analogous to the

defendant's case for two reasons.    First, the standard of review

of confrontation errors is considerably stricter than the

ineffectiveness standard applicable to the instant case.     See,

e.g., Olden v. Kentucky, 488 U.S. 227, 232 (1988), quoting

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) ("whether,

assuming that the damaging potential of the cross-examination

were fully realized, a reviewing court might nonetheless say

that the error was harmless beyond a reasonable doubt");

Commonwealth v. Vardinski, 438 Mass. 444, 450 (2003) ("whether

reversal is warranted because the error was not harmless beyond

a reasonable doubt").   Second, those cases deal with a judicial

decision to disallow impeachment evidence, rather than a defense

counsel's strategic decision not to impeach a witness or to use

a particular method of impeachment after tactical consideration.

    Given that this case involved multiple avenues of defense,

more than one key witness, and general impeachment of all of the

Commonwealth's witnesses based on inconsistent statements,

defense counsel's strategic decision not to impeach Stokes's

particular statement was not "manifestly unreasonable" such that

her assistance was ineffective.     Moreover, even though defense

counsel did not pursue an otherwise available avenue of

impeachment, and although in hindsight that may not appear to

have been wise, we cannot conclude that this decision so
                                                                     16


impacted the outcome of the case that there was a "substantial

risk of a miscarriage of justice."

    2.   Substitution of trial counsel.     The United States

Supreme Court has found that a criminal trial is inherently

unfair if the defendant is denied counsel at a "critical stage"

of the proceedings, meaning that counsel is either totally

absent or is prevented from assisting the accused at that time.

United States v. Cronic, 466 U.S. 648, 659 n.25 (1984).     Such

denials of counsel constitute structural error and require no

showing of prejudice to warrant reversal.     Id. at 658-660, 662.

    In Massachusetts, jury deliberations have been found to be

a critical stage of the proceedings, at least when the jury

communicates a request that is of legal significance.

Commonwealth v. Bacigalupo, 49 Mass. App. Ct. 629, 632 (2000).

See Commonwealth v. Floyd P., 415 Mass. 826, 833-834 (1993).

The assistance of counsel in these circumstances requires the

judge, before responding to the jury's communication, to consult

with counsel as to an appropriate response.

    Here, the jury requested reinstruction on joint venture and

premeditation, two legal issues of significance to the case, and

the judge responded to the jury's questions in the absence of

the defendant's original counsel.    Therefore, the issue before

us clearly arose during a critical stage of the proceedings,

such that if the defendant was actually or constructively denied
                                                                    17


counsel, he would have a right to a new trial without a showing

of prejudice.   See, e.g., Curtis v. Duval, 124 F.3d 1, 4-5 (1st

Cir. 1997) (automatic reversal required when judge gives jury

instruction without consulting with and in absence of defendant

and counsel).

     a.   Structural error.   The defendant argues that even

though he had counsel during every stage of jury deliberations,

he was constructively denied counsel because the judge did not

obtain his informed consent to the substitution of counsel and

substitute counsel was unfamiliar with the case.    Further, even

if the Sixth Amendment does not require a finding of structural

error here, the defendant argues that art. 12 is given a broader

reading than the Sixth Amendment.

     The Commonwealth concedes that jury deliberations are a

critical stage of the proceedings, such that denial of counsel

would warrant automatic reversal.   However, the Commonwealth

argues that because the defendant did not raise the issue of

informed consent to the substitution of counsel in his motion

for a new trial, the single justice was prevented from

determining whether the issue was new and substantial as

required by G. L. c. 278, § 33E.    Accordingly, the Commonwealth

argues that the issue is waived.4


     4
       No challenge to the substitution of counsel, or the lack
of consent to the same, was raised in the direct appeal.
                                                                  18


    On the merits of the defendant's claim, the Commonwealth

argues that he was not constructively denied counsel because

substitute counsel, a licensed lawyer, was present and competent

to represent him at that stage.   The Commonwealth additionally

argues that even though art. 12 may afford greater protections

than the Sixth Amendment, the defendant is still required to

show that the substitution of counsel resulted in the forfeiture

of a substantial defense, which the defendant has not shown.

    Trial counsel's affidavit indicates that the defendant

least knew about the attorney substitution, but it is apparent

that the judge did not obtain the defendant's consent on the

record before permitting it.   The defendant has not cited to any

case in which a court has held that the absence of informed

consent to substitute counsel mandates reversal, and we decline

to adopt such an absolute rule.   We are not persuaded that the

substitution of counsel during jury deliberations without the

defendant's consent constitutes a per se structural error.

Structural errors are ones that render the "adversary process

itself presumptively unreliable" or that constitute

"constitutional error[s] of the first magnitude" that simply

cannot be cured even if the error was ultimately harmless.

Cronic, 466 U.S. at 659, quoting Davis v. Alaska, 415 U.S. 308,

318 (1974).   This court also has held that structural errors are

"fundamental defects" that "necessarily render[] a criminal
                                                                  19


trial fundamentally unfair or an unreliable vehicle for

determining guilt or innocence," and accordingly, "occur

rarely."   Commonwealth v. Petetabella, 459 Mass. 177, 183

(2011), quoting Commonwealth v. Hampton, 457 Mass. 152, 163

(2010).

    We cannot say that the substitution of counsel in this case

amounted to such a high order of unfairness that our confidence

in the adversary process itself is in doubt or that there was a

substantial risk of a miscarriage of justice.   While the court

in Cronic acknowledged that "[c]ircumstances of [this] magnitude

may be present on some occasions when although counsel is

available to assist the accused during trial, the likelihood

that any lawyer, even a fully competent one, could provide

effective assistance is so small that a presumption of prejudice

is appropriate without inquiry into the actual conduct of the

trial," 466 U.S. at 659-660, constructive denials of counsel

which meet that order of magnitude are rare.    In Cronic itself,

the Court declined to find structural error, even where a

defendant was facing a twenty-five year sentence for mail fraud

and was appointed a young attorney with a real estate practice

who had only twenty-five days to prepare, while the government

had had four and one-half years to investigate the case and

review thousands of documents.   466 U.S. at 649, 666.    Contrast

Powell v. Alabama, 287 U.S. 45, 58 (1932) (structural error
                                                                    20


where defendants charged with atrocious crime and "put in peril

of their lives within a few moments after counsel for the first

time charged with any degree of responsibility began to

represent them").

      The defendant notes several cases in other jurisdictions in

which convictions were overturned because an unprepared counsel

was appointed at the last minute for the duration of an entire

trial.   See Hunt v. Mitchell, 261 F.3d 575, 582-583, 585 (6th

Cir. 2001); United States v. Koplin, 227 F.2d 80, 86 (7th Cir.

1955); In re Shawn P., 172 Md. App. 569, 587-588 (2007).     Such

cases present a far different circumstance from the one before

us.   Each involves representation by an unprepared attorney for

an entire trial, such that defense counsel could not

meaningfully function as an effective adversary.   Ultimately,

"the 'appropriate [Sixth Amendment] inquiry focuses on the

adversary[y] process, not on the accused's relationship with his

lawyer.'"   Commonwealth v. Britto, 433 Mass. 596, 607 (2001),

quoting Commonwealth v. Tuitt, 393 Mass. 801, 806-807 (1985).

      The defendant's argument that art. 12 should provide relief

in these circumstances is also meritless.   He cites no examples

of how a broader reading of art. 12 would help him in this

analysis, other than that this court has found denials of the

right to counsel amounting to structural error specifically

where a trial attorney has a conflict of interest or where the
                                                                  21


trial judge has not followed strict protocols for forfeiting the

right to counsel.   See, e.g., Commonwealth v. Hodge, 386 Mass.

165, 169-170 (1982) (where counsel has genuine conflict of

interest, no prejudice required to warrant new trial);

Commonwealth v. Means, 454 Mass. 81, 89-97 (2009) (strict

protocols apply before defendant can be found to have waived or

forfeited his right to counsel).   Both of these cases are

consistent with an understanding that constructive denials of

counsel rising to a level of structural error occur only where

the defendant essentially is denied the assistance of any

qualified attorney who could theoretically represent him in a

way that does not undermine our trust in the adversary system.

     Here, substitute counsel was not fundamentally incapable of

representing the defendant's interests for the brief period of

his representation to warrant a finding of structural error.

And, as found by the motion judge, substitute counsel did

actively render some assistance to the defendant by ensuring

that objections to the instructions made earlier by trial

counsel were preserved.   Any error in permitting substitute

counsel to stand in for trial counsel was not structural and

therefore requires a showing of prejudice in order to justify a

new trial.5   No such showing has been made.


     5
       In the future, it would be better practice for the judge
to engage in a colloquy with the defendant to ensure that he has
                                                                     22


     b.   Effectiveness of counsel.   Even if the defendant was

not constructively denied counsel outright, he still has a right

to effective assistance of counsel.    Accordingly, we look to

whether the conduct fell within a range of professionally

reasonable judgments based on the professional norms as they

existed at the time.   Strickland, 466 U.S. at 688.    The measure

we use in assessing attorney conduct is an objective one.     See

Commonwealth v. Hardy, 464 Mass. 660, 665 (2013), cert. denied,

134 S. Ct. 248 (2013); Saferian, 366 Mass. at 96.     Unlike with a

structural error, if substitute counsel's performance was

substandard, the defendant must still show prejudice and that

better work "might have accomplished something material for the

defense."   Acevedo, 446 Mass. at 442, quoting Satterfield, 373

Mass. at 115.

     Here, substitute counsel represented the defendant for only

a portion of the jury's deliberations, during which time the

judge provided reinstruction on two legal issues on which he had

previously instructed the jury in the presence of trial counsel.

The defendant claims error as to the "joint venture"

reinstruction, noting that while trial counsel made sure the

judge instructed that both "guilty" and "not guilty" verdicts

were options when considering whether the defendant should be



been properly informed about and has no objection to the
substitution before allowing it.
                                                                   23


convicted of this charge, the judge did not include the option

of "not guilty" when reinstructing on joint venture and

substitute counsel did not object.   This omission on the part of

substitute counsel arguably is not even error, because the jury

were previously instructed both generally and in the context of

joint venture that they could find the defendant not guilty and

had to if the Commonwealth failed to prove any element of murder

beyond a reasonable doubt.

    Further, it is not clear that the judge would have repeated

the full instruction he had given previously even if substitute

counsel had objected.   The jury's question was specifically,

"Your Honor, could you please refresh [us] on the laws on the

elements of the joint venture in detail."   The judge could have

interpreted this question to be fully answered by only walking

through the various elements of joint venture.   Therefore, we

cannot say that substitute counsel's failure to object likely

influenced the jury's verdict in any significant way.

    The defendant also claims error as to the judge's

supplemental premeditation instruction.   The judge intermingled

a definition of malice generally within his explanation of

premeditated malice and included a statement, only in the

supplemental premeditation instruction, that malice generally

could be "a specific intent to inflict grievous bodily harm."

Thus, the jury could have possibly understood premeditated
                                                                  24


malice to include intent to inflict grievous bodily harm, so

long as the "deliberation and reflection" elements of

premeditation were met.6

     In support of his argument, the defendant cites

Commonwealth v. Johnson, 435 Mass. 113, 119, 121-122 (2001), in

which this court held that a premeditation instruction that

included all three prongs of malice created a substantial

likelihood of miscarriage of justice.    However, Johnson was

decided long after the defendant's trial and substitute counsel

could not possibly have been aware of it at that time.    As noted

by the Commonwealth, this court did not expressly state until

1998 that jury instructions should make clear that "murder in

the first degree by reason of deliberate premeditation relates

only to the first prong of malice," a specific intent to kill.

Commonwealth v. Diaz, 426 Mass. 548, 553 (1998).     Still,

substitute counsel could have argued that the supplemental

instruction was confusing.     Accordingly, we consider whether not

pursuing this argument was "manifestly unreasonable" in a way

that gives rise to a "substantial risk of a miscarriage of

justice" (citation omitted).    Acevedo, 446 Mass. at 442.


     6
       The Commonwealth claims that the judge included a
reference to malice as grievous bodily harm in the original jury
instructions as well and trial counsel did not object. Although
this is accurate, the judge also clearly delineated malice
generally, as it would apply to murder in the second degree,
from premeditated murder.
                                                                  25


    Given that this court had yet to articulate expressly that

jury instructions on deliberate premeditation clearly should

relate only to the first prong of malice, it is an unreasonably

high standard to expect "an ordinary fallible lawyer" to have

anticipated this future holding and objected to the jury

instructions.   See id., quoting Saferian, 366 Mass. at 96.

Substitute counsel would not have had a clear statement of law

on which to rely in arguing that the judge erred in mentioning

grievous bodily harm in a way that could have been interpreted

to apply to premeditated murder.

    Even if this was error on substitute counsel's part, we

cannot say that there was a substantial risk of a miscarriage of

justice.   In a postappeal, collateral attack that raises an

issue regarding jury instructions, we "consider whether 'a

reasonable juror could have used the instruction incorrectly,'"

in light of "the instruction as a whole and in the context of

the trial."   Commonwealth v. Gagnon, 430 Mass. 348, 349-350

(1999), quoting Commonwealth v. Smith, 427 Mass. 245, 249

(1998).

    Considering the instructions in this case in light of how

the jury would have perceived them and in the context of the

entire trial, there was no substantial risk of a miscarriage of

justice here.   First, this was a supplemental instruction and

the judge's original instructions on general malice and
                                                                  26


premeditation clearly delineated the two concepts.    Second,

although the judge did not distinguish the two concepts as

clearly in the supplemental instruction, he did make a

distinction between the two.    He described "malice aforethought,

just plain malice aforethought," and then reiterated that this

could be an intent to kill without justification or an intent to

inflict grievous bodily harm.   Then, he noted that "deliberately

premeditated malice aforethought is something more than that,"

and proceeded to discuss premeditation at greater length.

Moreover, in his premeditation discussion, he repeatedly

described premeditated malice as "something more than the

instant formation of the purpose to take life," it requires a

"plan or purpose to take life," or a settled "determination to

kill."

    Thus, even though the judge's supplemental instructions

could have more clearly distinguished between general malice and

premeditation, the jury would have understood from the language

of the judge's supplemental instruction that deliberate

premeditation relates to an intent to kill and not an intent to

inflict grievous bodily harm.   Although the defendant surmises

that trial counsel might have objected to portions of the

supplemental instructions given her detailed familiarity with

the case, the fact that a certain attorney might have done a

better job on the defendant's behalf is not the standard for
                                                                 27


ineffective assistance of counsel.   Even though he could have

made certain objections regarding the supplemental instructions,

substitute counsel's actions did not fall below what we would

expect from an ordinary fallible lawyer, and the defendant was

not significantly prejudiced by substitute counsel's performance

such that he is entitled to a new trial.

    Conclusion.   The order denying the defendant's motion for a

new trial is affirmed.

                                     So ordered.
