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SJC-11692

                  COMMONWEALTH    vs.   NATALIO FELIX.



         Worcester.      December 19, 2016. - April 12, 2017.

Present:    Gants, C.J., Botsford, Lenk, Hines, & Gaziano, JJ. 1


Homicide. Practice, Criminal, Instructions to jury, Assistance
     of counsel, Capital case.



     Indictment found and returned in the Superior Court
Department on September 21, 2011.

     A pretrial motion to suppress evidence was heard by Bruce
R. Henry, J.; the case was tried before Kathe M. Tuttman, J.,
and a motion for a new trial, filed on March 16, 2015, was heard
by her.


     Leslie W. O'Brien for the defendant.
     Jane A. Sullivan, Assistant District Attorney, for the
Commonwealth.


     BOTSFORD, J.     The defendant, Natalio Felix, appeals from

his conviction of murder in the first degree and the denial of

his motion for a new trial.      The defendant was convicted of the

     1
       Justice Botsford participated in the deliberation on this
case and authored this opinion prior to her retirement.
                                                                   2


murder of his wife, Janice Santos, on the theory of deliberate

premeditation.

     The defendant's principal arguments on appeal concern the

absence of any instruction on manslaughter; he claims that

although he admittedly killed his wife, the trial evidence, and

particularly his own trial testimony, entitled him to

instructions on both voluntary and involuntary manslaughter, and

that for several reasons, the absence of these instructions

constituted error requiring reversal of his conviction and a new

trial.    The defendant also seeks relief pursuant to G. L.

c. 278, § 33E.   We affirm the defendant's conviction and the

order denying his motion for a new trial, and decline to grant

relief under G. L. c. 278, § 33E.

     1.   Background.   We summarize facts that the jury could

have found, and reserve discussion of additional evidence in

connection with the issues raised.    In May of 2011, the

defendant and the victim had been married for a decade or more.2

They jointly owned a home in Worcester where they lived with

their son and daughter, aged ten and eleven, and the victim's

sixteen year old son from a prior relationship.    The defendant

and the victim both held jobs outside the home, the defendant as

a truck driver and the victim at the Superior Court in Worcester

     2
       The evidence is conflicting as to whether they had married
ten or fourteen years before the homicide.
                                                                   3


County, but the defendant quit his job around this time, and the

couple argued frequently, often about money.   Their

relationship, however, contained no history of physical

violence.

    During that month, following an argument with his stepson,

the defendant left the couple's home and stayed with his sister

at her home in Worcester for some time and then went to the

Dominican Republic.   He stayed there for about one week before

deciding to return home.   Still in contact with the victim via

text messages both while staying with his sister and during his

trip to the Dominican Republic, the defendant asked her to pick

him up at the airport when he returned; she refused.

Nonetheless, he did return to Worcester on June 6, 2011, and

stayed at his mother's house, but slept at a friend's house on

June 7, the night before the homicide.

    On the night of June 7, the defendant exchanged a series of

text messages with Tina Rodriguez, a mutual friend of his and

the victim's.   Pressing Rodriguez for the gossip she had heard

about his marriage, the defendant sent a text message stating,

"[The victim is] not who you think she is.   She's a hypocrite,"

and continued, "She's supposed to be Christian.   Laugh out loud
                                                                       4


. . . .   Let's see if God saves her from this one."3    Asked to

elaborate, the defendant answered only, "You will see.     You know

who I am."   Rodriguez replied, "Remember that you have children

with her.    Don't do anything stupid."   The defendant ended the

exchange by asking that Rodriguez not tell the victim they had

spoken.

     At 12:44 A.M. on June 8, the defendant sent a text message

to his sister saying, "Love sis.    Thanks for everything," and

another saying goodbye to his niece.      He also asked his niece to

"get his cell phone," to thank his mother "for everything that

she had done for him," and to relay his message that, "if

anything happens to me just let [my mother] know that I'm sorry

and that I love her."    Forensic analysis of the defendant's

cellular telephone revealed a calendar entry for June 8, 2011,

reading, "Ju[d]gment Day."     There were no other calendar entries

for the six-month period beginning January 1, 2011, except for

one doctor's appointment on a day in March.

     The defendant arrived at his and the victim's home early on

the morning of June 8, 2011.    His stepson already had left for

school; his son and daughter were awake and getting ready for

school; the victim was in the master bedroom.      Having let

     3
       The victim was very religious, and attended church four or
five nights per week, accompanied by her children but generally
not by the defendant. The defendant exercised at a gym on many
evenings.
                                                                    5


himself into the house using the keys he still had, the

defendant spoke to no one before entering the master bedroom and

locking the door behind him.   The children, both outside the

bedroom, heard "a weird gasp," and "very loud thuds" coming from

inside.   Unable to open the bedroom door, they looked underneath

the door and saw a pair of black and white pants, along with

"legs and feet wiggling."   The defendant's son asked through the

door, "What are you doing to my mom?    Come and show yourself,"

and heard his father's voice respond, "It's me."    His daughter

also recognized the defendant's voice saying, "Be quiet" from

within the room.   About five minutes later, the defendant

emerged from the bedroom, told his children their mother was

sick, asked whether they had brushed their teeth, and drove them

to school.

    The defendant then returned to his and the victim's home.

According to what he told the police later that morning and told

the jury at trial, when the defendant reentered the house, he

did not check on the victim or go to the bedroom, but twice

attempted to hang himself with a rope from the second-floor

staircase.   Each time, however, the rope broke, and in falling,

he sustained injuries to his neck and face and lost

consciousness for a period of time.    When he regained

consciousness, he drove the victim's automobile to his mother's

house and left his house key and cellular telephone with his
                                                                   6


stepfather.

     The defendant proceeded to the Worcester police station,

arriving there at approximately 9 A.M.   He entered the station

and reported to the officer at the front desk that he had killed

his wife.   He wore a black and white track suit and the victim's

employment identification badge on a lanyard around his neck.

Police observed that the defendant had dried blood in both

nostrils, a split lip, and a ligature mark on his neck.   In

separate morning and afternoon interviews, the defendant spoke

with police, waiving his Miranda rights each time.4

     As the defendant's first interview with the police was

taking place, other police officers went to the defendant's home

to investigate.   They found the victim lying on the bed of the

master bedroom; she was dead.   The victim's neck showed three

ligature marks, and the tissue underneath the marks showed

hemorrhaging consistent with blunt trauma.   Her tongue was

bruised, her neck cartilage fractured, and her face spotted with

petechial hemorrhages.   The victim died as a result of asphyxia

due to ligature strangulation, which would have required the

     4
       In the interval between the two police interviews, the
defendant was taken to the hospital for examination and
treatment of his injuries. Both police interviews were video
and audio recorded, and copies of the recordings were in
evidence at trial and played for the jury. In each interview
statement and in his trial testimony, the defendant described
his interactions with the victim on the morning of June 8. We
summarize this evidence, infra.
                                                                     7


application of sufficient pressure to her neck for three to five

minutes.5

     In September, 2011, a Worcester County grand jury indicted

the defendant for murder.     Because the victim had worked in the

Superior Court in Worcester County, the case was transferred by

agreement of the parties to the Superior Court in Middlesex

County.     After an evidentiary hearing, a judge of the Superior

Court denied the defendant's motion to suppress his statements

to the police, and the case was tried before a second Superior

Court judge in October, 2012.     The jury were instructed on

murder in the first degree on theories of premeditation and

extreme atrocity or cruelty, and also murder in the second

degree; the judge declined to instruct on voluntary or

involuntary manslaughter.     The jury found the defendant guilty

of murder in the first degree based on deliberate premeditation,

and he was sentenced to life in prison without parole.


     5
       Although the specific murder weapon was not identified,
when the police went to the defendant's and the victim's house
on the morning of June 8, 2011, they found various cords in
rooms and in the halls on both floors of the house. Police
collected "anything that appeared to be out of place," including
a black telephone charger found lying on the floor next to the
bed in the master bedroom; a blue rope in the first-floor hall;
a knotted, cut white electrical cord also found in the first-
floor hall; a blue cord in the second-floor hall; a blue rope
tied to the second-floor banister; and a cut white electric cord
recovered from the daughter's bedroom. The record does not
indicate that any forensic analysis of these cords and ropes was
conducted.
                                                                     8


    The defendant appealed from his conviction and, represented

by new appellate counsel, filed a motion for a new trial in

March, 2015.   He argued in the motion that his trial counsel's

failure to request a voluntary manslaughter instruction had

deprived him of a viable defense and constituted ineffective

assistance of counsel.        After a nonevidentiary hearing, the

trial judge denied the motion in a written memorandum of

decision.   The defendant appealed from the denial of his motion,

which we consider along with the defendant's appeal from his

conviction.

    2.   Discussion.     a.    Manslaughter instructions.   The

defendant argues that his trial counsel rendered ineffective

assistance by failing to request a jury instruction on voluntary

manslaughter based on heat of passion caused by reasonable

provocation or sudden combat, and contends alternatively that

even if his trial counsel is found to have raised the

possibility of a voluntary manslaughter instruction, the judge's

declining to give it created a substantial likelihood of a

miscarriage of justice that requires reversal of his conviction.

He argues further that the judge committed error in declining

his request for a jury instruction on involuntary manslaughter,

and claims that reversal is required for this reason as well.

For the reasons we discuss hereafter, we disagree that

reversible error occurred.       We begin, however, by summarizing
                                                                           9


the defendant's statements to the police6 and trial testimony

describing his encounter with the victim on the morning of June

8, 2011, because these provide the sources of trial evidence on

which the defendant's arguments are based and the only sources

on which they could be based.

     i.     The defendant's statements and trial testimony.     The

defendant initially told a police officer in the station lobby

that he had killed his wife.    Brought upstairs for questioning,

he told detectives that he had gone to his house that morning

hoping to reconcile with his wife, but instead they fought.           He

could not recall which of them had initiated the struggle,

saying, "We didn't hit each other.    We just grabbed each other"

and "just started swinging at each other."7 Asked whether she

had hit him "with anything," the defendant indicated that she

had not.8    Rather, "[S]he was just punching me and stuff. . . .

And then I lost it."     Although a "struggle" ensued on the floor,

he could not account for the victim's return to the bed because

as soon as they started arguing, he "blanked out."     To the

     6
       The video and audio recordings of both police interviews
were played for the jury during trial and admitted as trial
exhibits. See note 4 and accompanying text, supra.
     7
       Although the record is silent as to the victim's and the
defendant's relative sizes, it was undisputed that the defendant
lifted weights at least three or four times per week.
     8
       The defendant denied that his wife had caused his
injuries, explaining that they were self-inflicted.
                                                                     10


question whether he had punched the victim, the defendant

responded, "No.    I strangled her."   He could not remember

actually strangling the victim, saying that after he "just

snapped," it was "all a blank."    Indeed, throughout both police

interviews, he repeatedly said that he had "just snapped," and

that he did not "remember anything," adding, "My head was going

crazy," and "I was just crazy."

    When asked about his suicide attempts, the defendant

explained that he "couldn't live with [him]self" after

strangling the victim.   He also said that he "realized what [he

had] done" when he regained consciousness after the failed

attempts.   The defendant told police that "after [he] woke up"

he drove directly to the station, and denied making any stops or

telephone calls.    When police asked about his cellular

telephone, the defendant told them alternately that he did not

have it, that it had been disconnected, that he did not know

what he had done with it, and that he did not know where it was.

    The defendant's trial testimony about the morning of June 8

was similar in most respects to his statements to police, but

newly introduced the idea that his wife had initiated the fight.

He testified that he went to the house on the morning of June 8

with peaceful intent to "get [his] family back."     When his wife

saw the defendant in their bedroom, however, she immediately

asked, "What are you doing here?" and "lunged" at him.     After
                                                                   11


the victim "started swinging at" and "punching" the defendant,

he "just snapped" and remembered nothing that followed until he

emerged from the bedroom to speak to the children.

    During a charge conference that preceded the defendant's

trial testimony, the defendant requested a jury instruction on

manslaughter -- without specifying whether he was requesting

voluntary, involuntary, or both -- based on anticipated evidence

that he "blacked out, that he did not intend to harm or kill his

wife."     The Commonwealth opined that the defendant's claim to

have "blacked out" or "snapped" did not "rise to the level of

either voluntary or involuntary manslaughter."     The judge saw no

evidence warranting jury instructions on "heat of passion on

reasonable provocation" or "[h]eat of passion induced by sudden

combat."    She also concluded that no evidence warranted an

involuntary manslaughter instruction.     At the final charge

conference, after the close of the evidence, the defendant

specifically requested an involuntary manslaughter instruction.

The judge denied the request, and no manslaughter instructions

were given to the jury.

    "If any view of the evidence in a case would permit a

verdict of manslaughter rather than murder, a manslaughter

charge should be given" (citation omitted).     Commonwealth v.

Sirois, 437 Mass. 845, 853 (2002).    No matter how incredible a

defendant's testimony, "he is entitled to an instruction based
                                                                  12


upon the hypothesis that it is entirely true."   Commonwealth v.

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

Campbell, 352 Mass. 387, 398 (1967).

    ii.   Voluntary manslaughter.   As previously stated, the

defendant argues that trial counsel was ineffective for failing

to request an instruction on voluntary manslaughter.   The

portion of the trial record just summarized, however, indicates

that regardless of whether the defendant made such a request,

the judge clearly considered the question of a voluntary

manslaughter instruction, ultimately deciding that the evidence

did not warrant giving it.   In the end, it is unimportant

whether we analyze the absence of an instruction on voluntary

manslaughter as a claim of ineffective assistance of counsel or

a claim of judicial error, because the question raised by both

claims is whether the absence of a voluntary manslaughter

instruction, whether caused by counsel or the judge, created a

substantial likelihood of a miscarriage of justice by creating

an error that likely influenced the jury.   See Commonwealth v.

Wright, 411 Mass. 678, 681-682 (1992), S.C., 469 Mass. 447

(2014).

    A voluntary manslaughter instruction on the theory of
                                                                        13


provocation9 requires evidence raising a reasonable doubt "that

something happened which would have been likely to produce in an

ordinary person such a state of passion, anger, fear, fright, or

nervous excitement as would eclipse his capacity for reflection

or restraint, and that what happened actually did produce such a

state of mind in the defendant."       Commonwealth v. Walden, 380

Mass. 724, 728 (1980).       See Model Jury Instructions on Homicide

64-65 (2013).10      By this standard, the defendant's trial

testimony may have demonstrated subjective provocation.        We are

not to judge his credibility, Acevedo, 446 Mass. at 442-443, and

he testified repeatedly that he had not intended to kill the

victim but snapped after she lunged at him and started punching

him.       If the question whether to give a manslaughter instruction

is at all close, especially in a case like this one where the

defendant testifies, prudence favors giving the instruction.

       However, a theory of reasonable provocation also requires

an objective showing that the precipitating event would have


       9
        Both in discussing voluntary manslaughter during the
first charge conference and in her memorandum of decision on the
defendant's motion for a new trial, the judge focused on sudden
combat. On appeal, however, the defendant emphasizes
provocation. The theories are closely related, and the
distinction does not make a difference in this case.
       10
       Although the 2013 Model Jury Instructions on Homicide had
not yet been formally approved by this court at the time of
trial, the trial judge informed the parties that she would be
using the new instructions, and used them in charging the jury.
                                                                   14


provoked heat of passion in the ordinary person.   Walden, 380

Mass. at 728.   See Commonwealth v. Pierce, 419 Mass. 28, 31

(1994).   Accordingly, "physical contact between a defendant and

a victim is not always sufficient to warrant a manslaughter

instruction, even when the victim initiated the contact."

Walden, supra at 727.   This may be especially true where the

defendant outweighs and is physically far more powerful than the

victim, and the defendant uses a weapon or excessive force.

See, e.g., Commonwealth v. Bianchi, 435 Mass. 316, 329 (2001)

("Bianchi's further testimony that the victim punched him in the

face during their 'argument' adds little to his claim of

provocation, where he intentionally precipitated the

confrontation in violation of the protective order, was a

weightlifter who outweighed the victim by more than 170 pounds,

and was armed with a fully loaded weapon"); Commonwealth v.

Parker, 402 Mass. 333, 335, 344 (1988), S.C., 412 Mass. 353

(1992) and 420 Mass. 242 (1995) (in choking murder of elderly

disabled man, provocation "untenable" despite defendant's

testimony that victim had twice punched him in face);

Commonwealth v. Brown, 387 Mass. 220, 227 (1982) (evidence that

unarmed victim choked defendant, her husband, with his shirt did

not amount to provocation warranting manslaughter instruction,

especially where he stabbed victim twenty-seven times);

Commonwealth v. Rembiszewski, 363 Mass. 311, 321 (1973), S.C.,
                                                                   15


391 Mass. 123 (1984) ("It is an extravagant suggestion that

scratches by the wife could serve as provocation for a malice-

free but ferocious attack by the defendant with a deadly

instrument").11

     Here, the evidence supporting objective provocation was

weak:     according to his trial testimony, the defendant showed up

uninvited and surprised the victim by entering the bedroom as

she was getting dressed; he perceived immediately that the

victim did not want him there, and locked the bedroom door; and

in response, the victim "lunged at" and punched him.     The

defendant did not provide any information in his testimony or

otherwise as to the force of the punch or where on his body it

landed -- although when speaking to the police soon after the

homicide, the defendant stated that the injuries on his face and

to his neck were not caused by the victim but were the result of

his failed attempts to hang himself.     In these circumstances,


     11
       The judge's decision on the defendant's motion for a new
trial reasoned that the objective prong was unmet in part
because the victim presented no "threat of serious harm" to the
defendant, citing Commonwealth v. Ruiz, 442 Mass. 826, 838-839
(2004). Although, as the cases just cited in the text reflect,
relative size and strength of a defendant and a victim may be a
pertinent factor in evaluating whether a voluntary manslaughter
instruction is warranted (on theories of either reasonable
provocation or sudden combat), and in that vein, the fact that
the victim did not pose a threat of serious physical harm may
itself be pertinent, it is by no means required that a victim
pose such a threat in order for a voluntary manslaughter
instruction to be required.
                                                                 16


whether or not the victim's conduct caused the defendant himself

to "snap," her conduct does not appear to be the sort that is

objectively likely to "eclipse [an ordinary person's] capacity

for reflection or restraint."   Walden, 380 Mass. at 728.

    Even if, in light of the defendant's testimony, the better

course to follow here would have been to give a voluntary

manslaughter instruction, reversal is not required.   That is, if

we were to assume that there was error -- either in counsel's

failure specifically to request a voluntary manslaughter

instruction or in the judge's failure to give it -- the error

was not "likely to have influenced the jury's conclusion."

Wright, 411 Mass. at 682.   The evidence was undisputed that

irrespective of what started the physical interaction between

the defendant and the victim, she died from being strangled by a

ligature, and the defendant was the person who strangled her.

Even if the jury were to have found, as the defendant stated,

that the defendant had returned home on the morning of the

homicide with peaceful intent to reconcile and the victim

punched him upon seeing him in the bedroom, the time required to

strangle the victim with a ligature supported a finding of

deliberate premeditation inconsistent with sudden provocation.

See Commonwealth v. Garabedian, 399 Mass. 304, 317 (1987)

(although defendant arrived at scene of crime unarmed and with

peaceful intent, heat of passion did not mitigate deliberately
                                                                     17


premeditated murder by strangulation and blunt force).     Compare

Commonwealth v. Vargas, 475 Mass. 338, 366 (2016) (reducing

murder in first degree to voluntary manslaughter where jury had

rejected theory of deliberate premeditation).     By the

defendant's own admission, he and the victim had been "arguing

for weeks" before the murder.    See Commonwealth v. Zagrodny, 443

Mass. 93, 107 (2004) (no voluntary manslaughter instruction

required, where marital tension was hardly "sudden" given that

relationship between victim and defendant had been strained by

financial difficulties and they had argued day before killing).

The night before the murder, he bid farewell to family members,

arranged for them to collect his cellular telephone, and ignored

a friend's warning not to do "anything stupid."     He created a

calendar entry for June 8 called "Ju[d]gment Day," entered the

house when the family member best positioned to protect the

victim would be absent, and locked the bedroom door behind him.

After strangling the victim, the defendant told his children

their mother was sick and drove them to school.    He did not

check on her, but twice attempted suicide "because [he] couldn't

live with [him]self."    Before going to the police station, he

left his cellular telephone with his stepfather but later

claimed that he did not have it, that it had been disconnected,

that he did not know what he had done with it, and that he did

not know where it was.    See Sirois, 437 Mass. at 853-855 & n.9
                                                                    18


(defendant's statement to police and conduct after shooting wife

demonstrated that victim's act of pointing gun at defendant did

not generate passion, anger, fear, fright, or nervous excitement

required for reasonable provocation).

    The jury's verdict of murder in the first degree by

deliberate premeditation was strongly supported by the evidence,

and in the circumstances of this case, we are persuaded that it

was highly unlikely that the jury would have been influenced by

an instruction on voluntary manslaughter.    There was no

substantial likelihood of a miscarriage of justice on account of

the absence of this instruction.

    iii.   Involuntary manslaughter.     The defendant also claims

error in the judge's denial of his request to instruct the jury

on involuntary manslaughter.   Again, if any view of the evidence

would permit a verdict of manslaughter -- whether voluntary or

involuntary -- rather than murder, a manslaughter instruction

should be given.   Commonwealth v. Degro, 432 Mass. 319, 330

(2000), and cases cited.

    The defendant was not entitled to an instruction on

involuntary manslaughter in this case.    "A verdict of

involuntary manslaughter is warranted 'only where the defendant

caused an unintentional death (1) during the commission of an

act amounting to wanton or reckless conduct, or (2) during the

commission of a battery'" (citation omitted).    Degro, 432 Mass.
                                                                   19


at 331.   With respect to the latter, under our cases, the

battery in question must be one that does not amount to a

felony, but one that the defendant knew or should have known

endangered human life.   See Commonwealth v. Simpson, 434 Mass.

570, 590 (2001); Commonwealth v. Catalina, 407 Mass. 779, 783

(1990).   See also Model Jury Instructions on Homicide 73, 87-90

(2013).

    The defendant requested an involuntary manslaughter

instruction based on this circumstance, that is, based on

commission of a battery not amounting to a felony.   But the

evidence in the case was that the defendant placed a ligature

around the victim's neck and pulled with sufficient force for

three to five minutes to cut the flow of oxygen to the victim's

brain, cause hemorrhaging to the underlying tissue, a fracture

to her neck cartilage, and petechial hemorrhages on her face.

"An involuntary manslaughter charge is not required when it is

obvious that the risk of physical harm to the victim creates a

'plain and strong likelihood that death would follow.'"      Degro,

432 Mass. at 331, quoting Commonwealth v. Brooks, 422 Mass. 574,

578 (1996).   See Commonwealth v. Linton, 456 Mass. 534, 552–553

(2010) (in light of medical examiner's undisputed testimony

regarding physical force used in strangling victim, no

reasonable jury could have concluded that defendant lacked

malice where he manually strangled victim for at least ninety
                                                                    20


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

unconscious behind locked door).12

     There was no error in declining to give an instruction

unwarranted by the evidence.    See Linton, 456 Mass. at 553,

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

("judge should not instruct jury on lesser offense not supported

by reasonable view of evidence").

     b.   "Cool reflection."   Although he did not object at

trial, the defendant contends that the judge's failure to inform

the jury of a requirement of "cool reflection" in her

instruction defining deliberate premeditation as an element of

murder in the first degree created a substantial likelihood of a

miscarriage of justice.   A judge defining deliberate

premeditation for a jury is not obligated to inform them that

they must find that the defendant decided to kill after having

an opportunity for "cool" reflection.    Where that phrase is not

required, Commonwealth v. LeClair, 429 Mass. 313, 318 & n.7

(1999), and where the trial judge here instructed the jury using


     12
       See also Commonwealth v. Mendes, 441 Mass. 459, 476
(2004) (risk created by "prolonged and forceful strangulation
. . . constitutes a plain and strong likelihood of death");
Commonwealth v. Fitzmeyer, 414 Mass. 540, 547–548 (1993)
(involuntary manslaughter instruction not warranted where
evidence indicated defendant choked victim to death);
Commonwealth v. Garabedian, 399 Mass. 304, 315–316 (1987)
(involuntary manslaughter instruction not warranted where
defendant strangled victim and threw rocks at her face).
                                                                    21


the Model Jury Instructions on Homicide,13 there was no error

and, accordingly, no substantial likelihood of a miscarriage of

justice.

     c.    Review pursuant to G. L. c. 278, § 33E.   Finally, the

defendant argues that pursuant to G. L. c. 278, § 33E, we should

reduce the murder verdict because there is reason to doubt that

he acted with deliberate premeditation.    After reviewing the

entire record of the case, we decline to do so.

                                     Judgment affirmed.

                                     Order denying motion for
                                       a new trial affirmed.




     13
          Specifically, the judge instructed as follows:

          "The third element is that the defendant committed the
     murder with deliberate premeditation, that is, he decided
     to kill after a period of reflection. Deliberate
     premeditation does not require any particular length of
     time of reflection. A decision to kill may be formed over
     a period of days, hours or even a few seconds. The key is
     the sequence of the thought process. First, the
     consideration of whether to kill. Second, the decision to
     kill, and third the killing arising from that decision.
     There is no deliberate premeditation where the action is
     taken so quickly that a defendant takes no time to reflect
     on the action and then decide[s] to do it."

This instruction tracked the language in Model Jury Instructions
on Homicide 39-40 (2013).
