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18-P-1584                                               Appeals Court

                COMMONWEALTH   vs.   BENJAMIN RIVERA.


                          No. 18-P-1584.

        Hampden.     September 17, 2019. - April 9, 2020.

            Present:    Vuono, Meade, & Sullivan, JJ.


Homicide. Firearms. Self-Defense. Practice, Criminal,
     Admissions and confessions, Instructions to jury.
     Constitutional Law, Admissions and confessions, Self-
     incrimination. Evidence, Admissions and confessions, Self-
     defense, Consciousness of guilt.


     Indictments found and returned in the Superior Court
Department on August 7, 2013.

    The cases were tried before Daniel A. Ford, J.


     Robert F. Hennessy for the defendant.
     Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.


    VUONO, J.   Following a jury trial in the Superior Court,

the defendant was convicted of murder in the second degree

stemming from the shooting death of Angel Llorens on May 22,
                                                                        2


2013, in Springfield.1     He also was convicted of unlawful

possession of the firearm and ammunition that he used during the

shooting.    At trial, the defendant did not dispute that he had

shot Llorens.    He testified on his own behalf and claimed that

he was acting in self-defense.        However, when the defendant was

interviewed by the police about two weeks after the shooting, he

said that he was not present when Llorens was shot but, rather,

was at home with his step-father.       In his opening statement and

closing argument, the prosecutor commented on the discrepancy

between the defendant's testimony at trial and the statement he

gave to the police.      The defendant claims that these remarks, to

which there was no objection, violated his right to remain

silent.    He also claims error in the admission of portions of

his interview that constitute accusatory questions and denials

thereto, and in the judge's instructions on reasonable

provocation and sudden combat.        Lastly, the defendant argues

that the combination of these alleged errors warrants reversal

of his convictions.      We affirm.

     1.    Background.    a.   The Commonwealth's case-in-chief.     The

Commonwealth presented evidence from which the jury could have

found the following facts.      On the evening of May 22, 2013, the

defendant was with a group of friends and acquaintances at the




     1   The indictment charged murder in the first degree.
                                                                     3


home of Lee Hutchins, Jr., at 53 Daytona Street in Springfield.

Some of the persons at the gathering were members of a local

"car club" that repaired and raced automobiles.    Llorens lived

close by and was a member of a rival car club.    Shortly before

10 P.M., Llorens came home and parked his car in front of his

building.    The vehicle had a sticker bearing the rival club's

logo.    The sticker caught the attention of some of Hutchins's

friends, one or two of whom decided to play a prank on Llorens

by stealing the sticker.    Llorens, who apparently observed the

theft from inside his home, came outside and confronted the

group.   Llorens was angry.   There was evidence that Llorens said

he was going to get a gun and that he briefly returned to his

apartment.   When the conflict began, Hutchins told the group not

to worry because he had a gun.    After Hutchins retrieved the

gun, the defendant took it from him and put it "on his hip."

Thereafter, Hutchins and one other person, Abinel Zayas,

approached Llorens and offered to pay for the sticker.     Llorens

agreed to be compensated, and as Hutchins began to walk away to

retrieve his wallet, the defendant approached with the gun

drawn.   Llorens, who was now smoking a cigarette, saw the

defendant and said, "I'm not scared."     The defendant then shot

Llorens four times in rapid succession.    Immediately thereafter,

the defendant departed in a car driven by his stepfather, who

had been "hang[ing] out" with the group at Hutchins's house.        As
                                                                      4


he was leaving, the defendant told Hutchins's father, who had

come out of the house upon hearing the shots, "[Y]ou didn't see

nothing, you don't know nothing."   Hutchins, who testified

pursuant to a cooperation agreement, was distraught after the

shooting.   He claimed that the problem over the sticker had been

"squashed" and that the defendant shot Llorens "for nothing."

     The police arrived quickly and transported Llorens to the

hospital, where he died from his wounds.    The ensuing

investigation revealed that Llorens did not have a firearm when

he was shot.   In addition, the Commonwealth's forensic evidence

established that although Llorens had a knife in his back

pocket, it had not been removed during the incident.

     About two weeks after the shooting, the defendant

voluntarily went to the Springfield police station, where he was

arrested.   After being read his Miranda rights, the defendant

agreed to speak to Detectives Kevin Lee and Anthony Pioggia.      A

redacted video recording of the defendant's interview was played

for the jury and admitted in evidence.2    The detectives did not

initially inform the defendant that he was charged with

Llorens's murder.   The interview began with a discussion about

the defendant's hobbies.   The defendant explained that although

he liked street racing, he was not a member of a car club and


     2 The record provided to this court contains only a
transcript of the recording that was played for the jury.
                                                                      5


did not frequent the neighborhood (Daytona Street and Belmont

Avenue) where the shooting occurred.     He said he did not know

Hutchins and had no reason to be in Hutchins's neighborhood,

claiming, "I don't . . . go up there.     I don't got no business

up there.   No family, no friends."

     About midway through the interview, in response to the

defendant's inquiry as to why he was being asked these

questions, Detective Pioggia told the defendant that he was

being charged with "killing a kid on Belmont and Hollywood."

The defendant responded, "Hell, no, that's crazy. . . .     No,

that is crazy."3   The interview continued and the defendant

answered more questions about racing cars and whether he knew

certain persons.    A short time later, Detective Pioggia again

stated that the defendant was charged with the "killing of this

kid on Belmont Avenue," and the defendant again responded,

"Crazy."    The interview then focused on the defendant's

whereabouts on the night of the murder.     During this portion of

the interview, the defendant stated:     "I just don't know where

you all get me killing somebody."     Detective Pioggia referred to

the charge again and said:    "Well, you have been identified as




     3 The defendant also said: "[K]illing someone, that's too
much, man. . . . I thought we was talking about street racing,
breaking laws or whatever."
                                                                    6


killing -- as killing this kid."     This time, the defendant

simply shook his head in response.

     Thereafter, the defendant was shown a number of photographs

of persons who had been at Hutchins's house on the night of the

shooting.    When the detectives showed the defendant photographs

of Llorens and Hutchins, the defendant claimed that he had never

seen either individual and wrote "never seen before" across the

bottom of both photographs.     The defendant then acknowledged

that he had heard about the murder on the night that it happened

and said he had been home on Armory Street with his stepfather.

According to the defendant, the two had been drinking, and

therefore, he could not remember who told him about the

shooting.    At one point, the defendant said he was told

"somebody got shot," not "killed."     After additional

questioning, the defendant terminated the interview.

     b.     The defense.   As noted, the defendant proceeded on a

theory of self-defense.     During his direct testimony, he

acknowledged that he lied to the police when he was questioned

following his arrest because he was "scared" and "ignorant."4

According to the defendant, when Hutchins approached Llorens in

an attempt to settle the dispute, Llorens reached behind his




     4 The defendant stated: "Well, I was scared. Being
ignorant. I guess I thought I would get away with something.        I
was being selfish."
                                                                        7


back.      The defendant testified that he believed Llorens had a

gun.       Hutchins and the defendant talked to Llorens and offered

to pay for the sticker, but Llorens was not listening.        The

defendant then told everyone to return to the porch and told

Llorens not to follow them.       By this time, the defendant had the

gun in his hand.       Llorens lunged, and the defendant "let out a

shot."       Llorens kept coming toward the defendant and said he was

not scared.      Fearing for his life and the lives of the others

present, the defendant then shot Llorens three more times.5

       2.    Discussion.   a.   The defendant's right to remain

silent.      In his opening statement, the prosecutor referred to

the defendant's interview and stated, among other things, "You

will not hear the word self-defense come from his mouth during

that meeting."6      Later, in closing argument, the prosecutor drew

attention to the variance between the defendant's statements to

the police and his testimony at trial.        At one point, the

prosecutor said:       "He doesn't tell them, hey, you got it all

wrong, this guy was crazy, I had to do it.        No, he tries to get




       The defendant also called as witnesses two of the persons
       5

who were present on the porch at 53 Daytona at the time of the
shooting -- his stepuncle, Ramon Arocho, and his stepfather,
Celido Nunez.

       The theory of the defense was known prior to the
       6

commencement of the trial.
                                                                     8


away with something first."7    The defendant argues that the

prosecutor's references to the defendant's failure to tell the

police that he shot Llorens in self-defense violated his right

to remain silent.    Because there was no objection to the

admission of the challenged remarks, we review the defendant's

claim under the substantial risk of a miscarriage of justice

standard.    Commonwealth v. Womack, 457 Mass. 268, 273 (2010).

     In Doyle v. Ohio, 426 U.S. 610 (1976), the United States

Supreme Court held that a defendant's silence after the police

have given the warnings mandated by Miranda v. Arizona, 384 U.S.

436 (1966), may not be used against that defendant.    Doyle, 426

U.S. at 619.    "[T]o do so would 'penalize' the invocation of the

right to silence."    Commonwealth v. Waite, 422 Mass. 792, 797

(1996) (applying Doyle).    However, when a defendant waives his

right to remain silent after being apprised of his Miranda

rights and agrees to speak with police, it is permissible for a

prosecutor to comment on omissions from the defendant's post-



     7   The prosecutor further stated:

     "And you saw his reaction when they tell him you're charged
     with murder. Cool, calm, collected. He doesn't seem to be
     easily frazzled or phased. Oh, that's crazy. No, not me.
     Have you ever been down to Belmont and Daytona? No, I
     don't go down there. No, no, that's crazy. Do you know
     this man? And watch when they show him the picture of Lee
     Hutchins and Angel Llorens. That picture is in front of
     him for a millisecond. Nope, don't know him. It just
     rolls off the tongue easily."
                                                                   9


Miranda statements.   See Womack, 457 Mass. at 277-278 (no Doyle

violation where defendant had waived Miranda rights and

prosecutor argued that failure to disclose to police his alibi

offered at trial was evidence that alibi was false);

Commonwealth v. Sosa, 79 Mass. App. Ct. 106, 113 (2011) ("The

defendant ha[s] a constitutional right to silence, not a right

to tell a story and then avoid explaining crucial omissions by

stating they were an exercise of the right to silence").    See

also Commonwealth v. Snell, 428 Mass. 766, 772-773, cert.

denied, 527 U.S. 1010 (1999) (right to remain silent not

violated where prosecutor commented in opening statement that,

when police informed defendant of wife's death, he "said

nothing" other than that he was out of State); Commonwealth v.

Lavalley, 410 Mass. 641, 648-649 (1991) (defendant's failure to

tell police in postarrest statement that he was with rape victim

and had intercourse with her constituted false statement, and

prosecutorial comment thereon was permissible at rape trial

where defense was consent); Commonwealth v. Donovan, 58 Mass.

App. Ct. 631, 639 (2003) (not improper for prosecutor to comment

on variance between postarrest statements and trial defense,

including failure to mention to police that sexual encounter was

consensual where defense at trial was consent).

    Here, as in the cases cited supra, the defendant did not

remain silent.   After waiving his Miranda rights, the defendant
                                                                    10


spoke voluntarily with the police and answered questions on a

variety of topics.8    During the interview, in an apparent effort

to deflect attention from himself and to establish an alibi, the

defendant made numerous statements that the jury could have

found were false.     The proscription of Doyle does not apply in

these circumstances.    As we have previously stated, "[t]he

omission of facts from one statement that are contained in

another statement is not silence within the meaning of Doyle."

Sosa, 79 Mass. App. Ct. at 113.    Consequently, the challenged

remarks did not amount to a constitutional violation.

     The defendant also argues that a Doyle error occurred

because he ultimately exercised his right to remain silent and

terminated the interview.    This claim is equally unavailing.      As

the defendant acknowledges, the "sine qua non of a Doyle

violation is the government's use of the defendant's silence

against him" (emphasis original).    Waite, 422 Mass. at 798.

Here, the fact that the defendant ultimately terminated the

interview is of no consequence because the invocation of his

right was not used against him.

     This case is distinguishable from Commonwealth v. Clarke,

48 Mass. App. Ct. 482 (2000), on which the defendant relies.        In




     8 There was no direct testimony regarding the length of the
interview. We note, however, that it took about thirty-three
minutes to play the redacted video for the jury.
                                                                       11


Clarke, the defendant, who was charged with aggravated rape,

waived his Miranda rights and agreed to be questioned by a

Boston police detective.    Id. at 484.    During the interview, the

defendant claimed that he did not know the victim.      Id. at 485.

Upon being confronted with incriminating information, the

defendant ended the interview.    Id.     Later, at trial, the

defendant took a different position.      Id. at 484.   He said that

the victim was a prostitute and that they had had a consensual

sexual encounter.   Id.    We held that the defendant's silence was

used against him when the prosecutor argued that the defendant

had "stopped answering . . . questions because he realized that

he had been caught in a lie and, for that reason[, he] 'changed

his defense.'"   Id. at 487.   The prosecutor also implied that

the defendant's refusal to answer further questions was evidence

that he had fabricated his testimony.      Id.   Here, by contrast,

the prosecutor did not argue or imply that the defendant's

invocation of his right to remain silent was evidence of his

guilt.   Instead, the prosecutor argued, within the bounds of

proper argument, that the defendant's failure to tell the police

that he shot Llorens in self-defense was, as the defendant

himself had testified, a "lie[]."9


     9 The defendant's reliance on United States v. Caruto, 532
F.3d 822 (9th Cir. 2008), also is misplaced. In that case the
defendant gave a brief postarrest statement lasting five to
seven minutes before invoking her right to remain silent. Id.
                                                                   12


    b.     Admissibility of accusatory questions and defendant's

denials.   For the first time on appeal, the defendant claims

that the video recording of his interview with the police was

insufficiently redacted.    His primary argument concerns

Detective Pioggia's statements that the defendant was charged

with "killing a kid" and the defendant's denials in response to

those accusations.    He contends that these exchanges should have

been redacted from the recording because they constitute

inadmissible hearsay.    The defendant also contends that it was

error to admit those portions of his interview where he denied

having been or having had reason to be in the area where the

shooting occurred and denied knowing Llorens or Hutchins.    The

defendant further asserts that these alleged errors were

exacerbated by the prosecutor's closing argument and the judge's

instruction on consciousness of guilt.

    The admissibility of the video recording (and the

statements contained therein) was the subject of a motion in

limine filed by the Commonwealth prior to trial.    At the hearing

on the motion, the Commonwealth argued that because the

defendant's statements were false, they were admissible as

evidence of consciousness of guilt.    The prosecutor also




at 824. She then testified at trial and provided additional
details that were not inconsistent with the statements made
during her custodial interview. Id. at 830-831.
                                                                   13


requested an instruction on consciousness of guilt.    Defense

counsel objected to the admission of the video recording, but

only on the ground that the defendant's statements were not

voluntary.   The judge initially reserved decision on the motion

and subsequently admitted the recording in evidence with no

further objection.   In addition, without further objection, the

judge instructed the jury as the Commonwealth had requested,

stating that if they found that the defendant had made false

statements to the police, they could consider those statements

as evidence of consciousness of guilt.10   Given the absence of

any objection, we review the defendant's argument to determine

whether any error created a substantial risk of a miscarriage of

justice.   Womack, 457 Mass. at 273.

     We first address Pioggia's statements that the defendant

was charged with "killing" Llorens, and the defendant's denials

("that's crazy").    The long-standing rule in Massachusetts is

that "[e]xtrajudicial accusatory statements made in the presence




     10The judge also instructed the jury that it was not
necessary to infer consciousness of guilt from any false
statements during the interview; that they should do so only if
the inference was reasonable; and that the jury were to decide
what weight to give any such inference. In addition, the judge
noted that there could be numerous reasons why an innocent
person might make false statements to the police; that such
conduct did not necessarily reflect feelings of guilt; that even
feelings of consciousness of guilt may not prove guilt in fact;
and that such evidence alone was not enough to prove actual
guilt.
                                                                     14


of a defendant, which he has unequivocally denied, are hearsay

and inadmissible as evidence of guilt in the Commonwealth's case

in chief" (footnotes omitted).   Womack, 457 Mass. at 272.    See

Commonwealth v. Spencer, 465 Mass. 32, 46 (2013) ("the proper

rationale for excluding accusations and denials is that they

constitute inadmissible hearsay").   However, evidence of a

defendant's out-of-court statement denying culpability may be

admissible for other nonhearsay purposes.   For example, in

Commonwealth v. Cruz, 373 Mass. 676, 691-692 (1977), the

defendant's unequivocal denials in response to police

accusations were admitted for the purpose of showing the

defendant's state of mind and the voluntariness of his

confession.   In Commonwealth v. Bonnett, 472 Mass. 827 (2015),

the court concluded that, where "the evidence suggested, as

defense counsel conceded, that [the defendant's statement to

police denying that he had been at the location of the shooting

under investigation] was a 'false statement,' [it was]

admissible 'to show consciousness of guilt.'"   Id. at 839,

citing Commonwealth v. Lavalley, 410 Mass. at 649.     The court's

decision in Lavalley is also instructive.   In that case, the

defendant, who was convicted of rape, initially told the police

that he had been drinking with the victim and a few friends and

that he had gotten into an argument with the victim.      Id. at

647.   He did not say anything about engaging in sexual
                                                                    15


intercourse with the victim at that point, thereby implicitly

denying the allegation of rape, but he later testified at trial

that the two had had a consensual sexual encounter that the

victim had initiated.   Id. at 648.    In Lavalley, as here, the

prosecutor asked the judge to instruct on consciousness of

guilt, and the judge did so over the defendant's objection.        Id.

The court concluded that the judge properly instructed the jury.

Id. at 649-650.

    Returning to the circumstances presented here, we

acknowledge that Detective Pioggia's statements informing the

defendant that he was charged with murder and the defendant's

unequivocal denials to those accusations are hearsay.      See

Spencer, 465 Mass. at 46.   However, even if we were to assume

that the accusations and denials should have been redacted from

the recording, there was no risk of a miscarriage of justice.

This is not a case where the defendant unequivocally denied

accusations by the police during an interview and continued to

deny the charges against him at trial.    Contrast Commonwealth v.

Diaz, 453 Mass. 266, 273-274 (2009), overruled in part on other

grounds by Womack, 457 Mass. at 274.    Here, as we have

discussed, the defendant gave one version of events to the

police and then testified to a different -- inconsistent --
                                                                 16


version at trial.11   In light of the defendant's trial testimony,

the defendant's statements to the police in which he denied

killing Llorens and his failure to disclose to the police that

he shot Llorens in self-defense were part of the apparently

false narrative, probative of consciousness of guilt, that was

already before the jury.   See Lavalley, 410 Mass. at 649 (where

defendant offered one version of events during custodial

interview and another at trial, omissions in defendant's

statements during interview constituted false statements

admissible at trial to show consciousness of guilt).

Consequently, the failure to redact the video recording to

exclude Detective Pioggia's accusations and the defendant's

denials did not cause justice to miscarry.12

     The defendant's second contention, that the video recording

should have been redacted to exclude his statements that he did


     11For this reason, the defendant's reliance on Commonwealth
v. Diaz, 453 Mass. 266, for support is misplaced. The premise
of the defense in Diaz was misidentification, and as a result,
there was no discrepancy between the defendant's denial of the
charge of murder when he was interrogated by police and his
defense at trial. Id. at 270, 273.

     12The defendant claims that the admission of this evidence
"harmed" his claim of self-defense because it rendered his
testimony at trial less credible. However, the defendant made
numerous apparently false statements, each of which undermined
his credibility at trial. Moreover, contrary to the defendant's
assertion that there was little evidence to rebut his claim of
self-defense, the Commonwealth presented ample evidence, which
included testimony from witnesses who were at the scene,
demonstrating that the defendant did not act in self-defense.
                                                                     17


not know Llorens or Hutchins and did not frequent Hutchins's

neighborhood, requires little discussion.     Unlike the questions

that implied that the defendant had killed Llorens, the

questions seeking information about his routine and

acquaintances did not accuse the defendant of criminal activity.

See Commonwealth v. Cruzado, 480 Mass. 275, 278 (2018) (negative

answers to questions that did not accuse defendant of criminal

activity admissible).     Accordingly, the defendant's statements

denying familiarity with Llorens and Hutchins and denying that

he had spent time in the area of the shooting were properly

admitted.    Id.

    Finally, given our discussion supra, we reject the

defendant's argument that it was improper for the prosecutor to

comment on the defendant's omissions and his responses to the

police upon learning of the charge against him.     We further

conclude that the judge properly instructed the jury on

consciousness of guilt.

    c.      Jury instructions on voluntary manslaughter.   The judge

instructed the jury on voluntary manslaughter, which included an

explanation of heat of passion on reasonable provocation and

heat of passion induced by sudden combat.     As to reasonable

provocation, the judge instructed, inter alia:

    "[M]ere words, no matter how insulting or abusive, standing
    alone, do not constitute reasonable provocation.
                                                                   18


    "Physical contact, even a single blow, may amount to
    reasonable provocation. Whether the contact is sufficient
    will depend on whether a reasonable person under similar
    circumstances would have been provoked to act out of
    emotion rather than reasoned reflection."

As to sudden combat, the judge instructed:

    "Sudden combat involves a mutual and sudden assault by both
    the deceased and the defendant. In sudden combat[,]
    physical contact, even a single blow, may amount to
    reasonable provocation. Whether the contact is sufficient
    will depend on whether a reasonable person under similar
    circumstances would have been provoked to act out of
    emotion rather than reasoned reflection."
Defense counsel objected, claiming that the instructions

improperly suggested that some sort of physical contact had to

be shown before the jury could find there was reasonable

provocation.   The objection was overruled.   Because the issue

was preserved, we consider whether there was error and, if so,

whether the error was prejudicial.   Womack, 457 Mass. at 273.

    There was no error.    The judge's instructions tracked the

Model Jury Instructions on Homicide (2013) (Model Instructions)

in effect at the time of the defendant's trial.   "In general,

when a judge employs the [Model Instructions], which have been

approved by the Supreme Judicial Court, there is no need to

instruct further on the concepts contained therein."    Sosa, 79

Mass. App. Ct. at 115-116 (where trial judge used broad

terminology in Model Instructions that encompassed more specific

instruction sought by defense, not error for judge to decline to

further expound upon instruction).   See Commonwealth v.
                                                                   19


Phillips, 452 Mass. 617, 632 (2008) (after quoting verbatim from

Model Instructions, judge did not need to instruct further on

elements of extreme atrocity or cruelty).    See also Commonwealth

v. Deane, 458 Mass. 43, 59 n.15 (2010) (refusal of requested

instruction is error "only if the requested instruction . . .

was not substantively covered in the jury charge").13

     d.   Cumulative error.    Because there was no error in the

Commonwealth's opening or closing remarks or in the jury

instructions, and no substantial risk of a miscarriage of

justice resulting from the admission of any portion of the

defendant's recorded interview, there is no basis for the

defendant's claim that the cumulative impact of the asserted

errors requires a new trial.

                                     Judgments affirmed.




     13We acknowledge that the Model Jury Instructions on
Homicide were revised in 2018 and the instruction on heat of
passion on reasonable provocation (although not the instruction
on heat of passion by sudden combat) now includes an explicit
statement that physical contact is not necessary for reasonable
provocation. See Model Jury Instructions on Homicide (April
2018), reprinted in Massachusetts Superior Court Criminal
Practice Jury Instructions § 2.7, at 2-50 (Mass. Cont. Legal
Educ. 2018). This revision, however, does not affect our
conclusion that the judge did not err.
