NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-11444

               COMMONWEALTH   vs.   LASTARANDRE BELL.



       Hampden.      December 5, 2014. - November 9, 2015.

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


Homicide. Evidence, Admissions and confessions, Inflammatory
     evidence, Intoxication, Photograph, Relevancy and
     materiality, Voluntariness of statement. Constitutional
     Law, Admissions and confessions, Voluntariness of
     statement, Waiver of constitutional rights. Practice,
     Criminal, Capital case, Motion to suppress, Admissions and
     confessions, Voluntariness of statement, Waiver, Argument
     by counsel, Instructions to jury. Waiver.



     Indictments found and returned in the Superior Court
Department on February 13, 2007.

     Following review by this court, 460 Mass. 294 (2011), a
pretrial motion to suppress evidence was heard by John S.
Ferrara, J., and the case was retried before him on an
indictment charging murder in the first degree.


     Leslie W. O'Brien for the defendant.
     Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.


    DUFFLY, J.    The defendant was indicted on charges of murder

in the first degree, armed home invasion, arson of a dwelling
                                                                      2


house, and violations of an abuse prevention order in the

January 29, 2007 death of Julie Ann Nieves,1 who died as a result

of complications arising from second and third degree burns over

ninety per cent of her body that she sustained on January 7,

2007.

         In April, 2008, a Superior Court jury convicted the

defendant of murder in the first degree on a theory of felony-

murder,2 armed home invasion, arson, and violations of an abuse

prevention order.     The defendant's appeal from the denial of his

motion for a new trial was consolidated with his direct appeal.

Because the trial judge failed to instruct the jury on second-

degree felony-murder with arson as the predicate felony, and


     1
       The defendant also was indicted on two charges of assault
by means of a dangerous weapon against Julie Ann Nieves and
Tiffany Cruz, respectively, G. L. c. 265, § 15B (b); one charge
of assault and battery by means of a dangerous weapon against
Julissa Cruz, G. L. c. 265, § 15A (b); and one charge of assault
and battery by means of a dangerous weapon against Larry Key,
G. L. c. 265, § 15A (b). During the defendant's first trial,
the Commonwealth indicated that it would file, and later did
file, a nolle prosequi on the two charges of assault by means of
a dangerous weapon; the trial judge allowed the defendant's
motion for entry of a required finding of not guilty on the
charge of assault and battery by means of a dangerous weapon
against Julissa Cruz; and the jury acquitted the defendant of
the charge of assault and battery by means of a dangerous weapon
against Larry Key.
     2
       At that trial, the Commonwealth proceeded on all three
theories of murder. The jury did not find the defendant guilty
on the theories of premeditation and extreme atrocity or
cruelty. In our decision allowing a new trial, we determined
that the defendant could be retried on all three theories. See
Commonwealth v. Bell, 460 Mass. 294, 309-310 (2011).
                                                                         3


because we concluded that the arson conviction merged with the

murder conviction, we vacated the murder conviction and remanded

the matter to the Superior Court either for entry of a verdict

of guilty of felony-murder in the second degree, or for a new

trial.     See Commonwealth v. Bell, 460 Mass. 294, 295 (2011).     We

affirmed the other convictions.     Id.   At his second trial in

December, 2012, before a different judge, a Superior Court jury

found the defendant guilty of murder in the first degree on

theories of premeditation, extreme atrocity or cruelty, and

felony-murder.     The defendant's appeal from that conviction is

now before us.

         That the defendant was in some way responsible for the

flames which engulfed the victim was not an issue at trial; the

central issue at trial was whether the burning was intentional

or accidental.     The Commonwealth maintained that the defendant

deliberately doused the victim with gasoline and set her on

fire; the defendant claimed that he had a cigarette in his mouth

when the victim threw gasoline on him, the cigarette ignited the

gasoline, and the fire jumped from him onto the victim's

nightgown.3 In this appeal, the defendant challenges the


     3
       The defendant testified at his first trial that the victim
threw gasoline on him, his burning cigarette fell and ignited
the gasoline, and the flames spread from his clothes to the
victim's; the defendant did not testify at his second trial, and
counsel did not pursue this theory of defense. The defendant's
prior recorded testimony, however, was read into the record by
                                                                     4


introduction in evidence of his statements that, inter alia, he

started the fire but did not intend that anyone get hurt.    The

defendant argues that these statements, made to police

approximately one-half hour after the fire, immediately before

and during his arrest, were not voluntarily made, and their

admission in evidence following the denial of his motion to

suppress requires a new trial.    The defendant argues also that a

new trial is required because the introduction of graphic

photographs of the victim while she was being treated in the

hospital unfairly inflamed the jury, and the judge's decision to

strike part of defense counsel's closing argument deprived the

defendant of the effective assistance of counsel.

     We affirm the convictions, and discern no reason to grant a

new trial or to exercise our authority to provide relief

pursuant to G. L. c. 278, § 33E.

     Background.    We summarize the facts the jury could have

found, reserving certain facts for later discussion.

     1.   Commonwealth's case.   In the fall of 2006, the

defendant had been dating Jessica Nieves4 for about one year.      He

lived with Jessica; her brother, Daniel; her mother, Julie Ann;



the Commonwealth.
     4
       Because Julie Ann Nieves and her children, Jessica and
Daniel Nieves, share the same surname, we refer to them by their
first names. For the same reason, we refer to Caroline Cruz and
her daughters Tiffany and Julissa Cruz by their first names.
                                                                    5


and other of their relatives in the borough of the Bronx in New

York City.   In October, 2006, the defendant moved with Jessica

and her family from New York to Springfield.   They moved into an

apartment on Warner Street where Julie Ann's sister, Caroline

Cruz, lived with her daughters, Tiffany and Julissa, and

Tiffany's boy friend, Larry Key.

    At the beginning of November, 2006, Jessica and Caroline

obtained restraining orders against the defendant, in part based

on Jessica's statements that the defendant had made threatening

comments to her about hurting her and members of her family.

The defendant then moved to a nearby apartment building where he

obtained a job as the building superintendent.   Despite the

restraining order, Jessica continued to spend time with the

defendant.   She had keys to his apartment, kept some clothes

there, and sometimes stayed overnight; she and her brother used

the laundry facilities in the building.

    Jessica and her family returned to New York to visit other

relatives over the Christmas holiday; the defendant made several

telephone calls to her during that period, expressing anger that

he had not been included in the visit and asking to see Jessica.

She refused his requests. The family returned to Springfield

after the New Year.

    On the evening of January 7, 2007, Jessica, her mother,

brother, aunt, cousins, and her cousin's boy friend were in the
                                                                     6


Warner Street apartment.   Shortly before 9:30 P.M., the

defendant called Daniel's Nextel cellular telephone, asking to

speak with Jessica.   The Nextel device had a "walkie talkie"

feature that allowed everyone in the vicinity to hear the caller

even if the device was not picked up and answered.   Daniel did

not answer; the defendant telephoned again a few minutes later,

asking to speak with Jessica and sounding angry.   Again, Daniel

did not answer.

    Soon thereafter, around 9:30 P.M., there was the sound of

glass shattering, and several family members heard a scream.

They ran into the kitchen and saw the defendant approaching from

the dining room, which led directly into the living room where

the window was broken.   A number of family members testified

that the defendant was holding some kind of a bottle or

container, about the size of a one-gallon milk container.     Some

said he was squirting or spraying liquid from it; others said he

had a gasoline can with a funnel; and another saw him waving his

arms but did not see if he had anything in his hands.   The

family members ran into the middle of three bedrooms and locked

the door.   They then realized that Julie Ann was not with them,

and heard her scream and cry out, "Oh, my god." Jessica, Daniel,

and Larry ran through a door between the middle and front

bedrooms, then through another door leading from the front

bedroom to the front hall.   They saw the defendant, whose leg
                                                                     7


was on fire, struggling to unlock the front door; he managed to

get the door open and left the house.

    At that point, Julie Ann's bedroom, next to the kitchen,

was on fire.   The family saw Julie Ann walking slowly toward

them from the living room to the front door.   The back of her

nightgown was in flames.    She walked out onto the porch, where

Jessica and Daniel tried unsuccessfully to extinguish the flames

with their hands and a towel.   Eventually, Jessica grabbed a

comforter from one of the bedrooms and wrapped Julie Ann in it,

which extinguished the fire.

    When police arrived, the house was on fire, and there was a

fire burning in the yard.   Julie Ann was lying on the front

porch, wrapped in the comforter, and various family members were

standing on the porch, "hysterical beyond control," according to

one of the first officers to arrive on the scene, and initially

unable to explain what had happened.    Directed to the comforter,

one officer then unwrapped a flap and looked inside. Julie Ann's

burns were so severe that he was at first unable to tell if she

was male or female, but she later responded to questions.     She

was transported by ambulance to a hospital in Boston.   Family

members told police that the defendant had started the fire and

had headed down Longhill Street, towards his apartment, after he

left their house.   Four officers (three Springfield police

officers and a State police trooper) drove to Longhill Street in
                                                                      8


a police cruiser to search for the defendant.   The officers

stopped not far from his apartment complex to discuss their

strategy for searching the complex and saw the defendant walking

toward them, with his hands in the air, saying a number of

times, "I'm right here.   I'm the one that started the fire.    I'm

the one you're looking for."   They aimed their weapons at the

defendant and told him to lie on the ground.

    The officers noticed that the defendant's hands and face

were seriously burned, and he smelled of gasoline.   He was

walking slowly and "gingerly" and was in evident pain; in the

course of handcuffing the defendant, officers observed that his

legs also were burned badly.   He said repeatedly, "I didn't mean

to hurt anybody."   While the defendant was being frisked for

weapons, one of the officers found money and a book of matches

in the left front pocket of the defendant's pants.   The officer

held the matches up to show them to the other officers, saying,

"Look what I found," and the defendant responded, "That's what I

used to start the fire.'"

    As the defendant continued to make statements to the

arresting officers, Springfield police Officer Phil McBride gave

the defendant the Miranda warnings.   McBride asked the defendant

if he understood the rights he had been given, and the defendant

said that he did.   The defendant repeated a number of times that

he had not meant to start the fire and had not meant to hurt
                                                                     9


anyone.    When the defendant continued to speak, McBride told him

to stop talking.   The defendant also said a number of times that

his legs were badly burned, he was in pain, and he wanted

medical attention.   After officers told him that an ambulance

had been summoned, the defendant asked a number of times when it

would arrive.   The defendant continued to make statements to the

officers until he was placed in the ambulance.    As the defendant

was being taken to the ambulance, one of the officers in close

proximity to the defendant remarked that the defendant smelled

of gasoline, and the defendant again said, "That's what I used."

    Police searched the victim's apartment with an

accelerant-detecting dog.   The dog alerted to areas on the

dining room floor, the floor in the hallway outside the

bathroom, the living room floor, and the window sill below the

broken window in the living room.    A police laboratory confirmed

that these areas tested positive for gasoline.    Officers also

found a burned and melted red plastic gasoline container in the

rear bedroom, and a black plastic nozzle that tested positive

for gasoline in the living room.    They saw a white plastic

bottle in the dining room, but did not remove that bottle for

testing.   The defendant's clothes -- jeans, T-shirt, shirt,

belt, socks, and shoes -- tested positive for gasoline.     A

search of the defendant's apartment revealed a red plastic

gasoline container in the front hall closet.
                                                                     10


    2.     Defendant's testimony from first trial.   The defendant

did not testify in his own defense, as he had at his first

trial.   The defendant's testimony from the first trial, however,

was read in evidence by the Commonwealth.   In that testimony,

the defendant said that, despite the restraining order, he and

Jessica continued their relationship through December, 2006; she

had keys to his apartment, and she spent some nights there.

    The defendant said that, on the evening of January 7, 2007,

he had locked his telephone and his keys in his apartment when

he was called to fix a "flood" in another apartment in the

building; when he discovered he was locked out, he called Daniel

from a Nextel telephone, not his own, because Jessica had a set

of keys to his apartment.    Jessica told him to come pick up the

keys at the Warner Street apartment, where she was staying.

When the defendant arrived there and rang the doorbell, no one

answered.    He stood outside smoking, and then "banged" on the

window next to the door, which broke.    He removed the glass,

called for Jessica, went inside, and walked through the living

room into the dining room, with the lit cigarette.    The lights

were off in those rooms, and he did not see anyone, but there

was light coming from the kitchen.    When he found no one in the

kitchen, he headed to the rear bedroom that he had shared with

Jessica.    When he entered that room, he was confronted by the

victim, who said, "This shit is going to stop," and threw
                                                                   11


gasoline in his face from a red gasoline can.   The defendant

still had the cigarette in his mouth, and the gasoline ignited.

His hearing "completely left," he banged into the door behind

him, and the flames spread to the victim's nightgown.   The

defendant threw the gasoline can to the left side of the room

and pulled the victim out of the room, as the fire became

"intense."    They moved from the kitchen into the dining room,

where the victim "shunned" the defendant off.   He headed through

the dining room to the front door, where he struggled with the

door lock because his hands were burned and he was unable to

feel them.    The defendant finally opened the door, pulled off

and dropped the burning sweatshirt he was wearing, ran down the

stairs and rolled in the grass to put out the remaining flames,

and then ran across the street and continued running down his

own street.   He lost consciousness for a few minutes, and woke

up lying in the grass, hearing Jessica screaming.   He looked up

to see police standing over him, and told them that he had been

involved in a fire at the victim's apartment, and that someone

there was badly burned and needed help.    The defendant denied

walking up to the officers with his hands in the air, or making

any of the incriminating statements.   While he was still lying

on the ground, police told him to put his hands behind his back

"for safety measures," searched him, and took cigarettes,

matches, and his wallet from his pocket.
                                                                  12


    Discussion.   1.   Admission of defendant's statements.

Prior to his first trial, the defendant moved unsuccessfully to

suppress his statements to police on January 7, 2007, arguing

that he had not been advised properly of his Miranda rights.

The defendant did not raise any argument concerning the

suppression motion in his prior direct appeal, and, after its

own review of the suppression issue pursuant to G. L. c. 278,

§ 33E, this court stated that it had not identified any issue

with the admission of the defendant's statements.   See

Commonwealth v. Bell, 460 Mass. 294, 298 n.10 (2011).

    The defendant filed a new motion to suppress prior to his

second trial, arguing that his statements both before and after

Miranda warnings were given should have been suppressed because

he did not knowingly and intelligently waive his Miranda rights

and because his statements were not voluntary.   The defendant

argued that he was intoxicated from alcohol and marijuana,

confused and in an "altered" mental state due to carbon monoxide

inhalation from the fire, and, most significantly, his mental

functioning was severely impacted because he was in

extraordinary pain from second and third degree burns and smoke

inhalation injuries.   The second trial judge held an evidentiary

hearing over two days at which the defendant's medical records

were admitted, expert medical testimony by the defendant's

expert was introduced on the degree of pain the defendant would
                                                                   13


have been experiencing and its effect on his mental acuity.      Two

of the arresting officers also testified as to the defendant's

obvious pain during his arrest and while awaiting an ambulance.

The judge then denied the motion to suppress.

    In reviewing the denial of a motion to suppress, we defer

to the motion judge as to the weight and credibility of the

evidence.   See Commonwealth v. Hoyt, 461 Mass. 143, 148 (2011).

We accept the motion judge's findings of fact unless they are

clearly erroneous, see Commonwealth v. Durand, 457 Mass. 574,

596 (2010), and assess the correctness of the judge's legal

conclusions de novo.    See Commonwealth v. Baye, 462 Mass. 246,

255-256 (2012).   We rely on the second motion judge's findings

of fact about the defendant's mental and physical condition at

the time of his arrest, and the conduct of the arrest; the facts

as found are supported by the testimony at the two-day hearing.

    After police were told that the defendant had started the

fire and had been heading toward Longhill Street when he left

the house, four officers drove their cruisers the short distance

to that street and parked near the defendant's apartment

building.   While they were discussing how best to approach the

building, they saw the defendant heading towards them, holding

his hands in the air.    The officers drew loaded weapons, pointed

them at the defendant, and ordered him to the ground, where he

was handcuffed and searched for weapons.   He moved slowly and
                                                                    14


gingerly while walking, and got down on the ground slowly and

cautiously.    When the officers conducted a patfrisk, the

defendant had difficulty moving himself due to his injuries, and

the officers physically rolled him from side to side to complete

the patfrisk.    When bystanders started to appear, the defendant

was escorted to a police cruiser, still handcuffed, with

officers holding him on either arm, and moved from the scene of

the arrest to await the arrival of the ambulance.

     The defendant's medical records5 indicated that he suffered

second degree burns on his face and lower legs, second and third

degree burns on his hands, and third degree burns on his upper

left leg.6    His corneas were damaged from exposure to flames,

and, due to smoke inhalation, there was soot in his nose.     He

had inhaled toxic fumes, including carbon monoxide and cyanide.7

Even after having been administered morphine, the defendant

reported to medical personal later that evening that his pain

level was a ten out of ten. The medical expert testified that

being handcuffed with his hands behind his back, and being


     5
       From January 7, 2007, through January 29, 2007, the
defendant was treated in the same specialized burn unit in a
Boston hospital as was the victim.
     6
       At his first trial, a year after the fire, the defendant's
hands were still being treated and both hands were wrapped in
bandages.
     7
       Photographs of the defendant's injuries were admitted in
evidence.
                                                                    15


moved, would have exacerbated the severe pain the defendant was

experiencing.   The defendant told police repeatedly that he was

in pain, and the officers testified it was evident that touching

and moving him caused additional pain.    The defendant asked

numerous times when the ambulance would arrive, and appeared

anxious to obtain medical assistance.

    Extrapolating from the level measured at the hospital, the

defendant's blood alcohol level when he made the statements to

police would have been .115, which the judge described as

approximately one and one-half times the legal limit of .08 for

operating a motor vehicle.    The medical expert testified that

that level of intoxication may affect an individual's ability to

make rational decisions.    The defendant's urine also testified

positive for marijuana.    The expert testified that inhalation of

carbon monoxide affects the processing of oxygen in the blood,

depriving the brain of oxygen, which can cause confusion and

impaired reasoning.    Cyanide also impairs an individual's

thought processes.    The effects of carbon monoxide inhalation

still would be expected one-half hour after inhaling the gas,

the time at which the defendant encountered the officers.     The

expert opined that the defendant's burns were "severe

distracting injur[ies]," and that a physician would be unable to

rely on the accuracy of information reported by a patient with

distracting injuries because the patient's mind would be focused
                                                                  16


on the pain from the injury.

    In his first motion to suppress before his first trial, the

defendant raised the issue of the effect of the burn injuries,

but did not raise any issue concerning the effects of carbon

monoxide and cyanide on his ability to make a knowing,

voluntary, and intelligent waiver of his Miranda rights, and to

give a voluntary statement.    The first trial judge denied the

motion after having determined that the Miranda warnings were

adequate, the defendant was not in custody when he made his

initial statement to police, and the pain from his injuries did

not result in the defendant's statements not being voluntarily

made.   Although the Commonwealth argued at the hearing on the

defendant's second motion to suppress that the second trial

judge should not conduct a new evidentiary hearing, and should

rely on the first judge's findings as to the degree of pain from

the burn injuries, the second judge considered anew the question

of the burn injuries.

    The second judge concluded that the defendant was in

custody when he made the statements to police.    The Commonwealth

does not dispute that the defendant was in custody when he was

ordered to the ground.   The judge concluded further that the

defendant was not subjected to interrogation or coercion, and

the statements were spontaneous.    The defendant knew he was

speaking to police, and appeared eager to do so; while many of
                                                                  17


his statements were made in an effort to obtain medical care,

police told him almost immediately that an ambulance had been

requested, and did not suggest that receiving medical care was

in any way dependent on the defendant making further statements.

Indeed, rather than attempting to question the defendant, one of

the officers gave him the Miranda warnings and several times

told him to stop talking.

    Having concluded that the statements were not the subject

of interrogation or coercion, the judge focused on the question

of voluntariness.   The judge determined that, while the

defendant was clearly in pain and suffering from significant

injuries, and may have been confused by alcohol or the

inhalation of carbon monoxide, his injuries did not preclude him

from making a voluntary statement.   His statements to police,

and his actions after the fire, demonstrated awareness of the

situation at the scene of the fire, and did not show any great

confusion.   Despite the defendant's high blood alcohol level,

the arresting officers did not notice any slurred speech,

stumbling, or other signs of intoxication.   Emergency medical

personnel recorded that he was "alert and oriented," and able to

answer questions concerning his injuries and his medical

history; his medical records stated that he was "cooperative and

alert" on arrival at the hospital.

    The defendant argues that his statements were not voluntary
                                                                     18


in part due to his consumption of alcohol and the effects of his

inhalation of toxic fumes, but also, largely due to the pain

from his burn injuries.    A statement is voluntary if it is the

product of a rational intellect and a free will.     Commonwealth

v. Bins, 465 Mass. 348, 360 (2013) (citation omitted).    For a

statement to be voluntary, "the Commonwealth must prove beyond a

reasonable doubt that 'in light of the totality of the

circumstances surrounding the making of the statement, the will

of the defendant was [not] overborne,' but rather that the

statement was 'the result of a free and voluntary act.'"

Commonwealth v. Baye, 462 Mass. at 256, quoting Commonwealth v.

Durand, supra at 594-596.

    "Statements that are attributable in large measure to a

defendant's debilitated condition, such as . . . drug abuse or

withdrawal symptoms, [or] intoxication . . . are not the product

of a rational intellect or free will and are involuntary"

(citations omitted).     Commonwealth v. Allen, 395 Mass. 448, 455

(1985).   Nonetheless, an "otherwise voluntary act is not

necessarily rendered involuntary simply because an individual

has been drinking or using drugs."    Commonwealth v. Brown, 462

Mass. 620, 627 (2012), quoting Commonwealth v. Silanskas, 433

Mass. 678, 685 (2001).    See Commonwealth v. Shipps, 399 Mass.

820, 826 (1987).   That a defendant is suffering from a serious

and painful injury, such as a bullet or knife wound, does not
                                                                   19


necessarily preclude a statement being made voluntarily.     See

Commonwealth v. Stroyny, 435 Mass. 635, 646-647 (2002)

(statement to nurse and police officer voluntary although

defendant was being treated for slashed wrists and was crying

and moaning in pain); Commonwealth v. Clark, 432 Mass. 1, 12

(2000) (statement to police voluntary although defendant was

suffering from newly received gunshot wounds to head and arm).

Even where one or more factors could suggest that a statement

may have been made involuntarily, see Commonwealth v. Selby, 420

Mass. 656, 664 (1995), or that a defendant was in a disturbed

emotional state, see Commonwealth v. Perrot, 407 Mass. 539, 543

(1990), that does not automatically render the statement

involuntary.   Id.

    A determination whether the Commonwealth has proved beyond

a reasonable doubt that a statement is voluntary is made in

light of the totality of the circumstances, including, inter

alia, the "conduct of the defendant, the defendant's age,

education, intelligence and emotional stability, . . . physical

and mental condition, . . . and the details of the

interrogation, including the recitation of Miranda warnings."

Commonwealth v. Hilton, 450 Mass. 173, 177 (2007), quoting

Commonwealth v. Mandile, 397 Mass. 410, 413 (1986).   We discern

no error in the second motion judge's conclusion that,

notwithstanding his serious injuries and his consumption of
                                                                   20


intoxicants, the defendant knowingly, intelligently, and

voluntarily waived his Miranda rights, and spoke voluntarily to

police, continuing to talk despite their statements that he

should stop talking.   The defendant's coherent and appropriate

responses to medical personnel, his evident understanding that

Julie Ann had been seriously injured and his efforts to get help

for her, and his statements to police about the fire and his own

injuries indicate a rational understanding of the situation and

a voluntary decision to speak to police.

    2.    Admission of graphic photographs.   The defendant argues

that the admission of six photographs of the victim, taken while

she was being treated in the hospital, was an abuse of

discretion, and that the photographs were irrelevant to prove

extreme atrocity or cruelty, as the extent and severity of the

victim's burns was evident from other, extremely graphic, trial

testimony, and the photographs were highly inflammatory.

    A determination whether particular graphic photographs may

be admitted is within the sound discretion of the trial judge.

Commonwealth v. Stockwell, 426 Mass. 17, 20 (1997).   "[I]f the

photographs possess evidential value on a material matter, they

'are not rendered inadmissible solely because they are gruesome

[or duplicative] or may have an inflammatory effect on the

jury.'"   Commonwealth v. Keohane, 444 Mass. 563, 573 (2005),

quoting Commonwealth v. Ramos, 406 Mass. 397, 407 (1990).    The
                                                                  21


trial judge must exercise his or her discretion to "determine

whether the inflammatory nature of a photograph outweighs its

probative value."    See Commonwealth v. Cardarelli, 433 Mass.

427, 431 (2001), citing Commonwealth v. Vizcarrondo, 431 Mass.

360, 362 (2000).    While a defendant bears a "heavy burden" to

show an abuse of that discretion, "special caution is warranted"

in some circumstances, such as where the body has been altered

after the injuries were inflicted.    See Commonwealth v.

Cardarelli, supra, citing Commonwealth v. Bastarache, 382 Mass.

86, 106 (1980).    See, e.g., Commonwealth v. Keohane, supra at

573-574; Commonwealth v. Jackson, 428 Mass. 455, 464-465 (1998).

"If the judge determines, after careful assessment, that

photographs depicting an altered body are apt to be inflammatory

or otherwise prejudicial, he [or she] should exercise his [or

her] discretion to admit them only if they are important to the

jury's resolution of any contested fact in the case."

Commonwealth v. Cardarelli, supra.

    The prosecutor proffered twelve photographs in conjunction

with her motion to allow the introduction of what she described

as "horrific" photographs.    Describing the photographs as

"gruesome," the defendant objected, and the trial judge

conducted a hearing on the motion.    The judge allowed the

admission of six of the twelve proffered photographs, two taken

at the emergency room where the victim was first transported,
                                                                    22


and four taken while she was undergoing treatment at a Boston

medical center.   The judge also allowed, over the defendant's

objection, introduction of a photograph of the victim before her

injuries.   During the hearing, the judge decided the photographs

were sufficiently disturbing that the members of the venire were

informed during voir dire that the trial would include the

introduction of "graphic" photographs; in response to their

answers, some members of the venire were asked at sidebar about

their ability to decide the case fairly and impartially in light

of the planned introduction of the graphic photographs.    In his

charge, without specific reference to the photographs, the judge

gave a general instruction that "[e]motion or sympathy, passion

or prejudice have no place in your deliberations."

     The photographs are indeed graphic and disturbing.    One

shows the victim's severely burned, swollen, and distorted face,

with various tubes attached, while she was being treated in the

emergency room.   Several show the victim's legs, and other parts

of her body, that had been sliced open in multiple locations as

part of surgery performed to relieve swelling.    Another shows

her face and head, almost entirely covered in bandages, with a

breathing tube protruding from the bandages.

     The Commonwealth is entitled to a full presentation of its

case.   See Commonwealth v. Keohane, supra at 573; Commonwealth

v. Bradshaw, 385 Mass. 244, 269B270 (1982).    Here, because the
                                                                    23


Commonwealth proceeded on all three theories of murder in the

first degree, it bore the burden of establishing that the

killing had been done with extreme atrocity or cruelty.    The

admitted photographs are relevant; they clearly bear on the

question of the pain the victim suffered as a result of the

burns, and the fact that extensive testimony had been introduced

describing the injuries and the victim's suffering would not,

alone, preclude the introduction of graphic photographs.    See

Commonwealth v. Ramos, supra.     Nonetheless, to be admissible,

the probative value of the evidence must not be substantially

outweighed by its prejudicial effect.    See Mass. G. Evid. § 403

(2015).   See also Commonwealth v. Toro, 395 Mass. 354, 358

(1985).

    "[E]ven relevant evidence may not be admitted if 'its

probative value is substantially outweighed by the danger of

unfair prejudice.'"   Commonwealth v. Carey, 463 Mass. 378, 387-

388 (2012), quoting Mass. G. Evid. § 403 (2012).     The judge

clearly was cognizant of the concern that these photographs were

highly disturbing and there was a risk that they might be too

prejudicial.   The prosecutor was equally aware of that concern,

as is evident from the discussion at the hearing on the motion

to introduce the photographs.   Defense counsel pointed out that

all of the photographs involved medical procedures, rather than

showing the injuries inflicted.    He also argued that the victim
                                                                  24


had been on a monitored pain management program, so that the

injuries as seen in the photographs did not reflect the level of

pain she actually experienced, particularly where she was

unconscious during much of her hospitalization.    In addition,

defense counsel commented that the trial already was going to be

extremely "emotional" and the photographs were unduly

prejudicial and would serve only to "sway the jury by

emotionality" and be a "distraction" from their duty.   The judge

then allowed the introduction of six of the photographs to

establish extreme atrocity or cruelty.

    "[E]vidence that poses a risk of unfair prejudice need not

always be admitted simply because [it is admissible]; the judge

still needs to weigh the probative value of the evidence and the

risk of unfair prejudice, and determine whether the balance

favors admission."    Commonwealth v. Gray, 463 Mass. 731, 753

(2012), quoting Commonwealth v. McCowen, 458 Mass. 461, 479 n.15

(2010).   "[A] judge's discretionary decision constitutes an

abuse of discretion where we conclude the judge made 'a clear

error of judgment in weighing' the factors relevant to the

decision."   L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9,

15 (1st Cir. 2008).

    All of the proffered photographs showed medical

intervention and medical equipment.   They depicted, in large
                                                                  25


part, graphic aspects of the victim's injuries as a result of

medical procedures while the victim was being treated at the

hospital.    See Commonwealth v. Bastarache, supra at 105-106.

The photographs were indeed disturbing, and had a tendency to

arouse the jury's emotions.   "[T]rial judges must take care to

avoid exposing the jury unnecessarily to inflammatory material

that might inflame the jurors' emotions and possibly deprive the

defendant of an impartial jury."   Commonwealth v. Berry, 420

Mass. 95, 109 (1995).

    While it is a close call, and we might have reached a

different result had the question been de novo before us, we are

unable to conclude that the judge abused his discretion in

deciding to allow the introduction of the photographs.

    3.   Exclusion of one of defense counsel's closing

arguments.   The theory of the defense was that police officers

did not conduct an adequate investigation of the events of

January 7, 2007.   Defense counsel claimed that the officers were

so affected by the victim's injuries that they focused only on

the defendant and disregarded or did not seek other evidence

that would have supported his claims that the victim, not the

defendant, threw the gasoline; that the gasoline might have come

from someone who lived in another apartment in the building;

that police did not attempt to determine the source of the

gasoline; that someone else in the building might have owned the
                                                                 26


gasoline can; or that the fire was not intentional.

    In closing, defense counsel emphasized that officers did

not collect a white plastic bottle found on the dining room

floor in the victim's apartment; did not bring the accelerant

detecting dog into the back bedroom where an investigator

concluded that the fire had started, or into the back hall or

the back stairs that were shared with other apartments in the

building; and did not have the dog search the perimeter of the

house to determine whether there were traces of gasoline.

Defense counsel argued also that the family was confused and saw

the defendant as he was leaving the house, not as he entered.

Counsel contended that the defendant had a bottle of drain

cleaner in his hand (from his job maintaining his apartment

building), not gasoline.   Counsel suggested also that family

members inadvertently influenced each other's statements to

police, by discussing the events at the police station while

waiting to be interviewed.   All of these arguments were

permissible based on evidence introduced at trial.

    Defense counsel argued also that officers had moved,

repositioned, or "planted" a gasoline can found in a closet in

the defendant's bedroom in an effort to implicate the defendant.

Counsel based this argument on the fact that photographs taken

at different times during the night and morning following the

execution of a search warrant for the defendant's apartment
                                                                  27


showed the gasoline can facing in different directions.8   Arguing

that it was an extension of the inadequate police investigation,

defense counsel claimed that the police photographer who took

the photographs in the early morning hours after the fire had

moved or planted the gasoline can.9   The prosecutor objected.

The judge allowed the objection and ordered that part of the

argument struck.   In ordering the statements struck, the judge

instructed the jury to

     "disregard that argument. It's improper for counsel to
     make an argument based purely on speculation. There's been
     no testimony that gasoline was planted. It is an improper
     argument. You will disregard it."

     After a hearing the following morning on the defendant's

motion to reargue, defense counsel offered evidence in support

of his position, including pointing to the different direction

the can was facing in different photographs.   The judge

commented that, presented in that fashion, the argument might

have been acceptable, but not in the form that defense counsel


     8
       The police photographer testified that he may have
inadvertently replaced the can incorrectly after it was moved
during the course of the search.
     9
       Counsel described the law enforcement investigation as
"grossly incompetent", pointing out that police did not collect
the white bottle from the area where the dog had alerted in the
dining room. Counsel then stated that officers entered the
defendant's apartment "under the dead of night," before they had
obtained the search warrant, and that officers "snuck into [the
defendant's] apartment so they could . . . put a gas can there."
Counsel argued that one of the photographs showed the gasoline
can before officers decided where to place it.
                                                                    28


had presented it to the jury.   In denying counsel's motion, the

judge commented to counsel that it "completely eluded me that

you were intending to argue the gas can had been placed, and in

fact it still does."   The judge concluded that counsel's

argument was impermissible because it relied on matters not in

evidence, misstated the evidence, invited the jury to speculate

beyond the evidence, and contained counsel's own opinions as to

the credibility of certain witnesses.    The judge determined that

the inferences that counsel suggested the jury make were not

reasonable, and that the argument that the police photographer

had moved or planted the gasoline can was improper.

    As presented in counsel's argument to the jury, we agree.

See, e.g., Commonwealth v. Johnson, 463 Mass. 95, 114 (2012),

and cases cited (closing arguments must be limited "to facts in

evidence and the fair inferences to be drawn therefrom").     The

officer testified that the gasoline can had been moved during

the search, and that he might have placed it back in a different

position for the photograph.    There was absolutely no evidence,

however, that police engaged in any planting of evidence in an

effort to implicate the defendant.

    4.   Relief pursuant to G. L. c. 278, § 33E.    The defendant

did not seek a reduction in the verdict or other relief pursuant

to G. L. c. 278, § 33E.   Nonetheless, we have reviewed the

entire record pursuant to our duty under G. L. c. 278, § 33E.
                                                                  29


Although the defendant raises no issue in this regard, we have

considered carefully whether there was sufficient evidence to

support a conviction of felony-murder, with armed home invasion

as the predicate felony.    The jury found that, after breaking

into the victim's apartment, the defendant threatened imminent

harm to Jessica, her brother, Key, and her aunt Caroline.10

Viewing the evidence in the light most favorable to the

Commonwealth, we conclude that there is sufficient evidence to

support this finding.11    We discern no reason to reduce the


     10
       At his first trial, the defendant was acquitted of
assault and battery by means of a dangerous weapon (gasoline)
against Key, the Commonwealth filed a nolle prosequi on two
charges of assault by means of a dangerous weapon against Julie
Ann and Tiffany, and the first trial judge allowed the
defendant's motion for entry of a required finding of not guilty
on a charge of assault and battery by means of a dangerous
weapon against Julissa. See note 1, supra. At the outset of
the defendant's second trial, the Commonwealth acknowledged that
the felony-murder charge could be supported only on a finding of
armed home invasion by means of a threat, not an actual use of
force.
     11
       Jessica testified that, when she first saw the defendant
in the entrance between the kitchen and the dining room, he was
angry, talking in a loud voice, and "charging" at her; she
thought he was "coming after" her and intended to hurt her, but
no one else. She turned and ran.

     Key testified that, when the defendant was standing in the
entrance between the two rooms, he was in a "rage," "upset," and
"loud," saying, "I got you. I got you. You think it's a joke
now." Key tried to position himself between the defendant and
the other family members, who were heading into the room where
Jessica had gone. Key also testified that the room in question
was Caroline's room. Caroline was in the room, and, when
everyone was inside it, Caroline was holding the door closed so
the defendant could not enter.
                                                                 30


verdict of murder in the first degree or to order a new trial.

                                   Judgment affirmed.




     In addition, Key testified that the defendant was spraying
gasoline with a bottle he was carrying, sprayed some at Key, and
some of that gasoline landed on Key's shirt. Testing of the
shirt before the defendant's first trial, however, revealed no
evidence of gasoline, and, at that trial, the defendant was
acquitted of assault and battery by means of a dangerous weapon
for spraying Key with gasoline. See note 10, supra.
