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SJC-11805

                COMMONWEALTH   vs.   WILLIAM MOSELEY.



        Middlesex.      March 8, 2019. - October 3, 2019.

     Present:   Gants, C.J., Lenk, Lowy, Budd, & Kafker, JJ.


Homicide. Evidence, Hearsay, State of mind. Practice,
     Criminal, Capital case, Hearsay, State of mind, Request for
     jury instructions, Assistance of counsel, Argument by
     counsel.



     Indictment found and returned in the Superior Court
Department on September 25, 2012.

     The case was heard by Kathe M. Tuttman, J., and a motion
for a new trial, filed on December 29, 2016, was heard by her.


     Matthew A. Kamholtz for the defendant.
     Casey E. Silvia, Assistant District Attorney (Elizabeth A.
Dunigan, Assistant District Attorney, also present) for the
Commonwealth.


    LENK, J.    In the early morning hours of August 10, 2012,

the defendant strangled to death his former girlfriend, Cecilia

Yakubu, in the bedroom of their shared apartment in Malden.      At

trial, the defendant acknowledged that he killed the victim when
                                                                     2


he caused the tank top she was wearing to wrap around her neck.

He contended, however, that the strangulation occurred

unintentionally, during the course of a heated, physical

struggle.   The Commonwealth, by contrast, proceeded on the

theory that the defendant had tightly and deliberately wrapped

the tank top around the victim's neck, twice, in an effort to

kill her following an argument.   The only issue for the jury was

the defendant's degree of culpability.   The jury ultimately

convicted the defendant of murder in the first degree on the

theory of deliberate premeditation.

    In this consolidated appeal from the conviction and from

the denial of his motion for a new trial, the defendant contends

that the judge erred in allowing the admission of several

hearsay statements, and in declining to instruct the jury on the

elements of involuntary manslaughter.    Additionally, the

defendant argues that his trial counsel rendered

constitutionally ineffective assistance by failing to elicit

testimony about the reasons why the defendant kept a knife under

his pillow, and by delivering an unfocused closing argument that

did not marshal the evidence in favor of a conviction of

voluntary manslaughter.

    For the reasons set forth infra, we affirm the defendant's

conviction and the denial of his motion for a new trial.     After

a thorough review of the record, we discern no reason to employ
                                                                      3


our extraordinary authority under G. L. c. 278, § 33E, to grant

a new trial or to reduce the verdict.

     1.   Background.    We recite the facts as the jury could have

found them, reserving certain details for later discussion.

     The victim and the defendant lived together in a two-

bedroom apartment in Malden.     They had been involved in a

romantic relationship for approximately five years, but the

relationship had begun to deteriorate.    As a result, the

defendant removed his belongings from the bedroom that he and

the victim previously had shared and began sleeping in the

second bedroom.     The victim and the defendant continued this

arrangement until, in August of 2012, they decided that the

defendant should move out.

     On the morning of August 9, 2012, the defendant packed a

suitcase of his belongings and left the apartment.1    One of his

friends, Tuesday Reeves, collected the defendant from the train

station; from there, they went grocery shopping.     Afterward, the

defendant and Reeves returned to Reeves's apartment and visited

for a short time.

     The defendant told Reeves that he could not return to the

apartment that he had shared with the victim, and asked if he


     1 The victim had lunch with her friend, Dorothy O'Neal,
later that day. The victim expressed her belief that the
defendant had moved out of their apartment permanently.
                                                                    4


could stay with Reeves instead.2   Reeves said no, and asked the

defendant to leave her apartment because the man whom she was

dating would be coming over later that evening.   The defendant

then left Reeves's apartment and went to sell perfume oils in

Cambridge, which he did occasionally to earn extra income.

Later in the evening, he telephoned Reeves and asked once more

if he could stay at her apartment; she again refused.   The

defendant then took one of the last trains running from

Cambridge to Malden that evening, and returned to the victim's

apartment around 11:30 P.M.

     When the defendant showed up at the apartment, the victim

was using the landline telephone to speak with several of her

friends.   She expressed to them her frustration that the

defendant had returned, unannounced, after leading her to

believe that he had moved out.

     The defendant also used the landline telephone over the

course of the night, primarily to speak with Reeves.    The

defendant told Reeves that the victim was "going crazy" because

of his return to the apartment.    He mentioned that Reeves might




     2 In the preceding weeks, the defendant had told Reeves
about his living situation and his strained relationship with
the victim; he also asked Reeves if he could move into her
apartment. Reeves had explained that it would not be permitted
by the management of her public housing complex.
                                                                   5


not see him for the next ten years, and that she should know

that he loved her.   He then hung up.

     Reeves attempted to call back, but the victim answered.

Reeves could hear the defendant in the background getting

"louder and louder" as he argued with the victim; he seemed

quite angry.   The victim also was upset.   She told Reeves that

she was "sick of his shit" and that if the defendant "puts his

hands on her" she would call the police.    The victim also told

Reeves that the defendant had to go elsewhere, preferably to

Reeves's house.   Reeves responded that he could not stay with

her, and suggested that, instead, the victim leave the

apartment.   The victim did not want to leave.   She ended the

call shortly thereafter.3

     The defendant subsequently went into the victim's bedroom,

where the argument between them quickly escalated.    The victim

hit the defendant in the face with a telephone, and the

defendant ripped the cord and jack out of the wall.   A struggle

quickly ensued.   During the course of that struggle, the

defendant twice wound the victim's tank top around her neck.

After "a few minutes," the victim's body went limp, and she

became unresponsive.




     3 The defendant called Reeves back a few times thereafter.
During one conversation, the defendant seemed calmer. At some
point, Reeves stopped answering his calls.
                                                                     6


     The defendant then went into his bedroom and, using a

different landline telephone, made several calls to his mother

and sister, both of whom lived in another State; those calls

spanned the period of time from approximately 12:40 A.M. to

5:10 A.M.   At 5:15 A.M., approximately four to five hours after

the victim had died, the defendant telephoned 911 and reported

that he had "just killed [his] wife. . . .    She's dead."    He

told the 911 operator that he would be waiting outside the

apartment for police to arrive.

     When the first police officer responded, the defendant told

him that he had "just killed [his] wife," and that he had

"strangled her."   Police entered the apartment to find the

victim lying face down on the floor of the bedroom in a small

pool of blood; a black tank top was wrapped tightly around her

neck, and a telephone cord was draped across her shoulders.        One

of the officers tried to find a pulse on the victim's neck, but

the tank top was wrapped too tightly and the officer could not

get his fingers underneath it.    He instead checked for a pulse

on the victim's wrist and found none.4




     4 Because rigor mortis had begun to set in, the medical
examiner believed that the victim had been dead at least one
hour; by the defendant's own statement at trial, she had been
dead approximately four to five hours.
                                                                    7


     An autopsy subsequently revealed that the victim had

several abrasions on the side of her neck that were consistent

with efforts to remove the tank top before she lost

consciousness.   The victim also had several bruises and

scratches on her body that were consistent with having been

struck.5

     At trial, the only contested issue was whether the ligature

strangulation had occurred deliberately or inadvertently.     The

Commonwealth argued that the defendant tightly wrapped the

victim's tank top around her neck, twice, in order to kill her.

The defendant testified that his hand inadvertently became

caught up in the victim's tank top during a struggle; he then

pulled it back in order "[t]o restrain her," but the victim

became unresponsive and limp shortly thereafter.6




     5 The defense expert agreed that the bruising was consistent
with a fist striking the victim, but testified also that it
could be consistent with a collapse injury due to, for example,
a fall to the floor after losing consciousness.

     6 The medical examiner demonstrated on a mannequin the
manner in which the ligature had been wound around the victim's
neck, and how the strangulation likely occurred. The mannequin
was admitted in evidence, and the jury took it into the
deliberation room.
                                                                  8


     After a six-day trial, the jury convicted the defendant of

murder in the first degree on a theory of deliberate

premeditation.7

     2.   Discussion.   In this consolidated appeal from his

conviction and from the denial of his motion for a new trial,

the defendant argues that the judge erred in allowing the

admission of several hearsay statements by the victim to others

on the night that she was killed.   He maintains also that the

judge erred in not instructing the jury on the elements of

involuntary manslaughter.   The defendant argues that his trial

counsel was ineffective because counsel failed to elicit

testimony from the defendant regarding the reasons why he kept a

knife under his pillow, and delivered a "rambling" and

unpersuasive closing argument that did not convince the jury to

convict the defendant of voluntary manslaughter, rather than

murder.   Should we conclude that none of these asserted errors

warrants a new trial, the defendant also requests that we grant

relief pursuant to G. L. c. 278, § 33E, by reducing the verdict

to murder in the second degree.

     a.   Victim's statements.   The judge allowed the

Commonwealth to introduce several statements made by the victim

to her friends and to Reeves on the day and night that she was


     7 The jury did not convict the defendant on the theory of
extreme atrocity or cruelty.
                                                                   9


killed.   Although the judge offered to provide a limiting

instruction, the defendant expressly declined one.8

     The defendant argues that these statements should not have

been admitted because they constituted hearsay and were unduly

prejudicial insofar as they might have demonstrated the victim's

fear of the defendant.   The Commonwealth maintains that the

statements were not hearsay, as they were admitted not for their

truth but for the purpose of demonstrating the victim's state of

mind, which was made known to the defendant and shed light on

his motive on the night of the killing.   "Generally,

determinations as to the admissibility of evidence lie 'within

the sound discretion of the trial judge.'"   Commonwealth v.

Bins, 465 Mass. 348, 364 (2013), quoting Commonwealth v. Jones,

464 Mass. 16, 19-20 (2012).




     8 Defense counsel objected to the introduction of each
respective statement, but he did not request a limiting
instruction. Counsel told the judge that his decision was
tactical, as he believed that a limiting instruction would serve
only to place a judicial imprimatur on the victim's statements
and the inferences to be drawn therefrom. We discern no
ineffective assistance resulting in a substantial likelihood of
a miscarriage of justice from this decision, particularly in
light of the overwhelming evidence of the defendant's guilt.
See Commonwealth v. Franklin, 465 Mass. 895, 914 (2013) (failure
to request instruction not ineffective assistance resulting in
substantial likelihood of miscarriage of justice); Commonwealth
v. Griffith, 404 Mass. 256, 263 (1989) (counsel's tactic not
ineffective "[c]onsidering the overwhelming evidence against the
defendant").
                                                                    10


    The first of the challenged conversations was with Sharon

Phillips.   Phillips testified, in relevant part, that the victim

said, "He's back," when the defendant returned to the apartment

that evening.    The second was with Stanley Blidgen; he testified

to his conversation with the victim earlier that day, in which

the victim expressed her understanding that the defendant had

left the house with a suitcase and had moved out.     The third

exchange took place with a long-time friend of the victim,

Dorothy O'Neal.   O'Neal testified that the victim told her that

the defendant "was gone" and "that he took a little red bag."

O'Neal inquired if the victim had retrieved her key from the

defendant, to which she responded, "No, he's gone."    The fourth

challenged conversation was with Tuesday Reeves that evening.

She testified:

    Q.:     "What was the conversation?"

    A.: "She was upset. [The defendant] was making a
    sandwich. . . . She said that he was in there taking
    food when he didn't put any food in her house, and
    that he needed to come to my house."

    Q.:     "Did you have a response to that?"

    A.: "Yes, I told her that I have a guy and he cannot
    come here."

    Q.:     "What else did she say to you?"

    A.: "She said to me that if he puts his hands on her
    that she would call the police."

    Q.: "Did she say anything about how she felt about
    him?"
                                                                     11



    A.:    "Yes, she said that she was sick of his shit."

    . . .

    Q.: "And we're not going to get into what you said,
    but you gave her some advice?"

    A.:    "Yes, I did."

    . . .

    A.: "I told her to leave.      I told her to get out of
    the house, to leave."

    Q.:    "And she said no."

    A.:    "She said, no, it was her house."

    Q.: "And when you're having this conversation with
    her, can you hear anybody in the background?"

    A.:    "Yes, I can.    I could hear [the defendant]."

    In certain circumstances, statements made by a victim to a

third party may be admissible as evidence "of a murder victim's

state of mind as proof of the defendant's motive to kill the

victim."    See Commonwealth v. Castano, 478 Mass. 75, 85 (2017),

citing Commonwealth v. Qualls, 425 Mass. 163, 167 (1997), S.C.,

440 Mass. 576 (2003).     See also Mass. G. Evid. §§ 801(c), 802

(2019).    A victim's statements, however, may be admissible only

if "there also is evidence that the defendant was aware of that

state of mind at the time of the crime and would be likely to

respond to it."   Castano, supra, quoting Qualls, supra.      See

Commonwealth v. Magraw, 426 Mass. 589, 593-594 (1998).      "There

need not be direct evidence that the defendant learned of the
                                                                  12


victim's state of mind, so long as the jury reasonably could

have inferred that he or she did learn of it."   Castano, supra.

     Here, the statements made by the victim to others in the

hours before her death were probative of her state of mind on

the night that she was killed, that is, the victim's ongoing

dissatisfaction with the relationship, her frustration with the

defendant's presence in the apartment after believing that he

had moved out, and the defendant's response to her annoyance

when confronted.   Compare Castano, 478 Mass. at 85-86 (desire to

terminate relationship and have defendant move out of shared

apartment sufficient for jury to infer motive); Commonwealth v.

Tassinari, 466 Mass. 340, 347 (2013) (victim's statements to

others regarding desire that defendant move out demonstrated

ongoing hostility and discord within relationship); Commonwealth

v. Borodine, 371 Mass. 1, 7-9 (1976), cert. denied, 429 U.S.

1049 (1977) (victim's statements to third parties about

deterioration of relationship relevant in assessing defendant's

motive to kill victim).9


     9 Although the Commonwealth is not required to prove a
defendant's motive for committing a particular crime, if there
is evidence of motive, that evidence may be admissible. See
Commonwealth v. Borodine, 371 Mass. 1, 8 (1976), cert. denied,
429 U.S. 1049 (1977). Evidence of a victim's fear of a
defendant, however, "is not admissible at all to prove motive."
See Commonwealth v. Magraw, 426 Mass. 589, 594 (1998). Here,
the victim's statements did not indicate her fear of the
defendant but, rather, her irritation, anger, and annoyance at
his return, and her dissatisfaction with the state of their
                                                                    13


     Moreover, the jury could have inferred that the defendant

was aware of the victim's state of mind at the time of the

crime, as expressed to her friends, to Reeves, and to the

defendant, which may have shed light on the defendant's intent

or motive to harm the victim.   See Castano, 478 Mass. at 85-86.

Indeed, Reeves testified that she heard the defendant in the

background when the victim was expressing her irritation at the

defendant's presence in the apartment and his lack of financial

contribution to household expenses, her thoughts of calling the

police if he "put[] his hands on" her, and her request that he

leave.    Further, by the defendant's own testimony at trial, the

victim had in fact confronted him; their argument then led to a

physical struggle, which ended with the defendant strangling the

victim.   Compare id. at 85 (adequate evidence for jury to infer

that defendant knew of victim's state of mind where, in

defendant's own description of killing, "he and the victim were

arguing in the moments leading up to it").10

     The relatively innocuous statements also cannot be said to

have been unduly prejudicial to the defendant, as they reference



relationship and living situation. Cf. Commonwealth v. Qualls,
425 Mass. 163, 169 (1997) (evidence of victim's fear does not
shed light on defendant's motive, even if defendant knew of that
fear).
     10 To the extent that the statements also may have included

remarks made by a third party to the victim, those statements
were not introduced for their truth. See Commonwealth v. Bins,
465 Mass. 348, 365 (2013).
                                                                    14


neither the victim's fear of the defendant nor any misconduct on

the part of the defendant.   Cf. Qualls, 425 Mass. at 169.    Thus,

in light of the relevance of the victim's statements, the

defendant's awareness of her state of mind, and the broad

latitude afforded to a judge's decision to allow the admission

of such evidence if it is not unduly prejudicial, see L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014), we discern no

error in allowing the statements to be introduced at trial.     See

Bins, 465 Mass. at 365-366 (no error in allowing admission of

victim's statements where it was within judge's sound discretion

to do so).

    b.    Instruction on involuntary manslaughter.   At the close

of all the evidence, the defendant requested instructions on

involuntary and voluntary manslaughter.   The judge declined to

instruct on involuntary manslaughter, but agreed to provide an

instruction on voluntary manslaughter, in light of evidence that

could have supported a theory of heat of passion induced by

sudden combat.   See Commonwealth v. Espada, 450 Mass. 687, 694

(2008).   The judge also instructed on murder in the second

degree and murder in the first degree.    The defendant maintains

in this appeal that the judge erred in declining to instruct the

jury on involuntary manslaughter.

    "Involuntary manslaughter is an unintentional killing

resulting from 'wanton and reckless conduct . . . [or] . . . a
                                                                     15


battery not amounting to a felony which the defendant knew or

should have known endangered human life."   Commonwealth v.

Tague, 434 Mass. 510, 517-518 (2001), cert. denied, 534 U.S.

1146 (2002), quoting Commonwealth v. Pierce, 419 Mass. 28, 33

(1994).   "An instruction on involuntary manslaughter is required

where any view of the evidence would permit a finding of

manslaughter and not murder."   Pierce, supra.   "When it is

obvious, however, that the risk of physical harm to the victim

created a plain and strong likelihood that death will follow, an

instruction on involuntary manslaughter is not required."      Id.

In determining whether such an instruction was warranted, "we

consider the evidence in a light most favorable to the

defendant."   Tague, supra at 518.

    The evidence in this case, taken in the light most

favorable to the defendant, did not entitle him to an

instruction on involuntary manslaughter.    While the defendant's

hands may have inadvertently gotten caught up in the victim's

tank top during their struggle, by the defendant's own testimony

at trial, he then "pulled" the tank top in order "[t]o restrain

her," while she was clawing at her neck in an effort to release

the ligature.   The defendant continued to do so, by his own

estimate, for "a few minutes," until the victim had stopped

struggling.   The obvious risk of physical harm associated with

the continued pulling of a ligature around the victim's neck, so
                                                                  16


tightly that she could not remove it despite her efforts,

created a "plain and strong likelihood that death would follow."

See Commonwealth v. Degro, 432 Mass. 319, 331 (2000).     See also

Commonwealth v. DeMarco, 444 Mass. 678, 684 (2005) (involuntary

manslaughter instruction not warranted where defendant choked,

strangled, and slammed victim on ground); Commonwealth v.

Fitzmeyer, 414 Mass. 540, 547–548 (1993) (involuntary

manslaughter instruction not warranted where defendant choked

and beat victim); Commonwealth v. Garabedian, 399 Mass. 304,

315–316 (1987) (involuntary manslaughter instruction not

warranted where defendant strangled victim with drawstring from

his jacket and threw rocks at her).

    Moreover, the defendant strangled the victim with

sufficient force so as to cut off the flow of oxygen to her

brain, causing hemorrhaging in her face and eyes.   When she

became unresponsive and limp, he left the victim alone -- either

unconscious or dead -- with the ligature still wrapped tightly

around her neck.   When he realized that the victim was dead, the

defendant did not call for emergency assistance until

approximately four or five hours had passed.   In analogous

circumstances, we have concluded that the evidence did not

warrant an instruction on involuntary manslaughter.     Cf.

Commonwealth v. Felix, 476 Mass. 750, 760 (2017) (involuntary

manslaughter instruction not warranted where defendant placed
                                                                  17


ligature around victim's neck and pulled with force for three to

five minutes); Commonwealth v. Linton, 456 Mass. 534, 552–553

(2010) (involuntary manslaughter instruction not warranted where

defendant used manual force in strangling victim for at least

ninety seconds, did not call for emergency aid, and left victim

unconscious or dead behind locked door).

    Because an involuntary manslaughter instruction was not

reasonably supported by the evidence in light of the "plain and

strong likelihood that death [would] follow" from the

defendant's having pulled the tank top around her neck for

several minutes, see Pierce, 419 Mass. at 33, we discern no

error in the judge's decision not to provide one.   See

Commonwealth v. Nardone, 406 Mass. 123, 132 (1989) ("judge

should not instruct a jury on a lesser-included offense not

suggested by a reasonable view of the evidence").

    c.   Ineffective assistance of counsel.   The defendant also

moved for a new trial on the grounds that his trial counsel

rendered constitutionally ineffective assistance by introducing,

and then not explaining, the evidence that the defendant kept a

knife under his pillow, and by delivering an incoherent closing

argument.   The motion judge, who was also the trial judge,

denied the motion, from which the defendant now appeals.     We

review that decision for "a significant error of law or other

abuse of discretion," and afford "special deference to the
                                                                   18


rulings of a motion judge who was also the trial judge"

(citation omitted).   See Commonwealth v. Alcide, 472 Mass. 150,

158 (2015).   "When we review such a decision in the context of

an appeal from a conviction of murder in the first degree, the

defendant nevertheless 'has the benefit of our independent

review, pursuant to G. L. c. 278, § 33E . . . of the entire

record.'"   Id., quoting Commonwealth v. Carter, 423 Mass. 506,

513 (1996).

    In evaluating a claim of ineffective assistance of counsel

in a case of murder in the first degree, we review to determine

"whether there exists a substantial likelihood of a miscarriage

of justice, as required under G. L. c. 278, § 33E, which is more

favorable to a defendant than the constitutional standard for

determining ineffectiveness of counsel."   See Commonwealth v.

Walker, 460 Mass. 590, 598 (2011); Commonwealth v. Wright, 411

Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).   In so doing,

we need not consider whether counsel's action "fell measurably

below the conduct expected from an ordinary fallible lawyer, but

determine instead whether there was error and, if so, whether

the error was likely to have influenced the jury's conclusion"

(quotations and citation omitted).   See Commonwealth v.

Franklin, 465 Mass. 895, 909 (2013).

    i.   Failure to elicit testimony.   Prior to trial, the

Commonwealth filed a motion in limine seeking to exclude
                                                                   19


evidence that the defendant had kept a knife under his pillow.11

The defendant sought to elicit this evidence because he believed

it would indicate that the defendant had a fear of the victim.

The judge denied the Commonwealth's motion to exclude this

evidence, but stated that the defendant could not argue that he

feared the victim unless additional evidence were to be

introduced to support such an inference.   The defendant

subsequently testified, but his counsel did not ask him any

questions about the knife under his pillow.12

     In the defendant's motion for a new trial, the judge

determined that an inadvertent failure by counsel to elicit

testimony about the knife likely constituted error.   She noted,

however, that "ineffective assistance is not established simply

by showing that trial counsel failed to offer certain evidence."

See Commonwealth v. Medina, 20 Mass. App. Ct. 258, 261 (1985).

Indeed, courts must determine whether any such error was "likely

to have influenced the jury's conclusion" (citation omitted).

Franklin, 465 Mass. at 909.

     Having conducted an independent review of the entire trial

record, we agree with the motion judge that any testimony about


     11 The victim's landlord had discovered the knife when he
was cleaning out the apartment after the victim's death, and
gave it to investigating officers.
     12 Trial counsel asserted in an affidavit in support of the

defendant's motion for a new trial that the omission was
inadvertent.
                                                                  20


the defendant's possible fear of the victim was unlikely to have

influenced the jury's conclusion.   This is particularly true in

light of what she deemed to be powerful evidence of deliberate

premeditation arising from the medical examiner's demonstration

of the ligature strangulation on a mannequin and the defendant's

admissions at trial.    Moreover, any testimony about the knife

appears immaterial to the defense theory that the defendant

either had inadvertently wrapped the ligature around the

victim's neck or had strangled the victim in a heat of passion

during mutual combat.   Eliciting any further testimony about the

reasons why the defendant kept a knife under his pillow thus

would be unlikely to have bolstered the defense; by contrast, it

could have served to undermine the defense that the defendant

did not plan or intend to kill the victim.   See Commonwealth v.

Montez, 450 Mass. 736, 754-755 (2008) (no ineffective assistance

where additional testimony would have undermined defense).13

     Any passing reference to the existence of a knife at trial

also was brief and insubstantial.   Neither the prosecutor nor

defense counsel made reference to the knife in their arguments,

and mention of the knife formed only a very small portion of the




     13The jury also were instructed that they could not engage
in any guesswork, conjecture, or speculation about the evidence.
We presume, as we must, that the jury heeded those instructions
and did not impermissibly speculate about the knife. See
Commonwealth v. Rivera, 482 Mass. 259, 271 (2019).
                                                                     21


testimony; it thus likely had but very slight effect on the

jury.     In light of the overwhelming evidence of the defendant's

guilt, we are confident that even if counsel had fully developed

this evidence at trial, it would not have influenced the jury's

conclusion that the defendant intended to strangle the victim.

As such, we discern no substantial likelihood of a miscarriage

of justice.    See Commonwealth v. Facella, 478 Mass. 393, 411

(2017) (failure to elicit evidence at trial not ineffective

assistance resulting in miscarriage of justice "[g]iven the

overwhelming evidence of the defendant's guilt"); Commonwealth

v. Griffith, 404 Mass. 256, 263 (1989) (counsel's tactics not

ineffective assistance "[c]onsidering the overwhelming evidence

against the defendant").     We discern no error in the judge's

denial of the motion for a new trial on this basis.

     ii.    Closing argument.   The defendant maintains also that

his counsel rendered ineffective assistance by delivering an

unfocused closing argument that failed to marshal the evidence

in favor of a conviction of voluntary manslaughter.

     While counsel's argument did include several irrelevant

anecdotes and references to popular culture,14 any such remarks




     14For example, counsel made references to his own
experience serving on a jury, as well as the advice provided by
other judges whom he admired on the role of the jury. Counsel
also included anecdotes about his children, astronauts, and
celebrities. The judge characterized the closing argument as
                                                                    22


must be "considered in the context of the entire argument, and

in light of the judge's instructions to the jury and the

evidence at trial."    See Commonwealth v. Nieves, 429 Mass. 763,

772 (1999).   Indeed, the "guaranty of the right to counsel is

not an assurance to defendants of brilliant representation or

one free of mistakes."    Commonwealth v. Kolenovic, 478 Mass.

189, 196 (2017), quoting Commonwealth v. LeBlanc, 364 Mass. 1,

13-14 (1973).

    Considering the closing argument as a whole, this is not a

case in which counsel's argument abandoned the theory of the

case or failed effectively to argue that theory, leaving the

client "denuded of a defense."    Commonwealth v. Street, 388

Mass. 281, 287 (1983).    Nor it is a case in which counsel's

statements were "tantamount to an admission of his client's

guilt."   Commonwealth v. Triplett, 398 Mass. 561, 569 (1986).

Rather, counsel here touched upon all of the relevant evidence

that could have supported a verdict of voluntary manslaughter as

opposed to murder.    Specifically, counsel noted,

    "[T]here will be an instruction that you can consider
    whether or not the defendant is guilty of the crime of
    voluntary manslaughter. That this was sudden combat
    and that the death resulted from his actions during --
    after this sort of hot blood provocation, things of
    that particular nature. [The victim] hits him with
    the phone, they struggle. [The defendant] says
    they're both throwing punches, landing punches,


displaying counsel's "folksy, salt-of-the-earth" style, in which
he was "trying to connect on a personal level with the jurors."
                                                                    23


    they're on the floor. He gets up. He says he reaches
    around probably grabs her shirt. But to do this, to
    really know that this is what's going to result is
    death I would suggest would take some specialized
    knowledge that he doesn't have."

Counsel concluded by saying it was "not even clear . . . that

[the defendant] had the intent to kill out of this provocation,"

and urged the jury that "when you apply all the law[,] the duty

to return the verdict that best fits the facts of this

case . . . [is] voluntary manslaughter."

    The defendant also critiques counsel's performance by

pointing to an alternative use of the facts that might have

better persuaded the jury.     "A list of subjective critiques of

defense counsel's [performance], absent a showing that errors

likely affected the jury's conclusions," however, "is

insufficient to support an ineffective assistance claim."     See

Commonwealth v. Degro, 432 Mass. 319, 333 (2000), quoting

Commonwealth v. Scott, 428 Mass. 362, 369 (1998).     Indeed, "[i]t

is far too easy to examine a transcript and point to ways to 'do

it better.'"   Degro, supra.    Several statements in counsel's

closing, although perhaps interposed with personal stories,

focused on the theory of the defense:     that the defendant had

not acted with premeditation, but had strangled the victim in
                                                                    24


the heat of passion.   "This was a reasonable choice, in the face

of overwhelming evidence of guilt."   See id.15

     We thus discern no substantial likelihood of a miscarriage

of justice on the basis of counsel's closing argument, and no

abuse of discretion in the denial of the defendant's motion for

a new trial.

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

also requests that this court exercise its authority to reduce

the verdict to murder in the second degree, particularly in

light of the unplanned nature of the attack.16    We decline,

however, to disturb the jury's verdict that the defendant




     15 Counsel also had to make his closing argument in light of
the defendant's testimony that he had pulled the tank top around
the victim's neck in order to restrain her and the defendant's
cryptic statement to Reeves that she should not expect to see
him for the next "ten years." These statements, indicating a
possible plan to harm grievously the victim, were difficult to
overcome. So, too, were the defendant's statements to a police
officer that he had strangled the victim, and his testimony at
trial that the strangulation lasted a "few minutes."
Nonetheless, counsel presented the defense theory of the case
with reference to the critical facts and testimony in support
thereof. Cf. Commonwealth v. Marrero, 459 Mass. 235, 246 (2011)
(affirming conviction where "several, and perhaps even all, of
the statements" made in closing were improvident).
     16 More specifically, the defendant requests a reduction in

the verdict because he has a limited education, see Commonwealth
v. McDermott, 393 Mass. 451, 460 (1984); the attack was
unplanned and senseless, see Commonwealth v. Pagan, 471 Mass.
537, 543, cert. denied, 136 S. Ct. 548 (2015); he did not bring
a weapon to the scene, see Commonwealth v. King, 374 Mass. 501,
507 (1978); and there was no history of animosity or
confrontation between him and the victim, see Commonwealth v.
Ransom, 358 Mass. 580, 583 (1971).
                                                                    25


strangled the victim to death with deliberate premeditation,

which was supported by ample evidence.     Compare Commonwealth v.

Mejia, 461 Mass. 384, 393 (2012) ("evidence of death by manual

strangulation sufficient to establish malice and deliberate

premeditation"); Commonwealth v. Serino, 436 Mass. 408, 411

(2002) (evidence of premeditation inherent in method of death

through sustained pressure to victim's neck).     Pursuant to our

duty under G. L. c. 211, § 3, we have thoroughly reviewed the

entire trial record and discern no other reason to grant a new

trial or to reduce the verdict.

    3.   Conclusion.   For the foregoing reasons, we affirm the

judgment of conviction.   The order denying the defendant's

motion for a new trial is also affirmed.

                                    So ordered.
