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SJC-10566

                COMMONWEALTH   vs.   MANOLO SALAZAR.



     Suffolk.      September 12, 2018. - December 14, 2018.

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


Homicide. Evidence, Intoxication, Intent, Medical record,
     Expert opinion, Argument by prosecutor. Intoxication.
     Intent. Practice, Criminal, Argument by prosecutor,
     Assistance of counsel, Capital case.



     Indictment found and returned in the Superior Court
Department on March 24, 2005.

     The case was heard by Margaret R. Hinkle, J.; and a motion
for a new trial, filed on January 11, 2016, was heard by Douglas
H. Wilkins, J., and a motion for reconsideration was considered
by him.


     Amy M. Belger for the defendant.
     Kathryn E. Leary, Assistant District Attorney (John P.
Pappas, Assistant District Attorney, also present) for the
Commonwealth.


    LOWY, J.    On the night of January 31, 2005, members of the

Boston fire department in the Dorchester section of Boston

responded to the sound of banging on their fire house door.
                                                                     2


Outside the station was the defendant, Manolo Salazar, covered

in blood.    After examining the defendant, firefighters found

only a minor cut on his right hand.    Police investigation

revealed the source of the rest of the blood on the defendant's

body:    Carlos Cruz, the defendant's roommate, whom police found

dead in their shared apartment.

     After a jury trial, the defendant was convicted of murder

in the first degree on the theory of deliberate premeditation.1

He raises several arguments on appeal:    (1) the judge erred in

denying his motions for a required finding of not guilty on the

murder charge because the evidence was insufficient to establish

deliberate premeditation; (2) he should be afforded a new trial

because trial counsel was ineffective in failing to introduce

evidence in support of a defense based on voluntary

intoxication; and (3) improper statements in the prosecutor's

closing argument created a substantial likelihood of a

miscarriage of justice.2    The defendant also asks us to exercise


     1   The defendant was acquitted of assault and battery.

     2 The defendant raised one additional argument pursuant to
Commonwealth v. Moffett, 383 Mass. 201, 208-209 (1981). The
defendant contends that he was prejudiced by the trial judge's
denial of his motion for the funds necessary to translate his
trial transcripts into Spanish. An indigent defendant is
entitled to funds for "extra fees and costs . . . if 'the
document, service or object is reasonably necessary to assure
the applicant as effective a . . . defense . . . as he would
have if he were financially able to pay.'" Commonwealth v.
                                                                   3


our authority under G. L. c. 278, § 33E, to either reduce his

conviction to murder in the second degree or order a new trial.

    Having thoroughly reviewed the defendant's asserted errors

and the record as a whole, we discern no reversible error.

However, given the unique circumstances of this case, we

exercise our authority under G. L. c. 278, § 33E, to reduce the

defendant's verdict to murder in the second degree.

    1.   Background.     a.   Trial.   Because the defendant

challenges the sufficiency of the evidence, we recite the facts

that the jury could have found in the light most favorable to

the Commonwealth and reserve additional facts for later

discussion.

    At approximately 8:40 P.M. on January 31, 2005, members of

the Boston fire department heard banging on the door of a

station in Dorchester.    They found the defendant at the door.

He fell down.   His clothes, including the socks on his shoeless

feet, were covered in blood.      The lone injury firefighters

discovered was a minor laceration between the defendant's right



Millien, 474 Mass. 417, 430 (2016), quoting G. L. c. 261, § 27C.
In making a decision on a motion for funds, a judge may
consider, among other things, the cost of the requested item and
its potential value. Commonwealth v. Lockley, 381 Mass. 156,
160-161 (1980). The estimated cost of the translation was
$12,348, and the defendant was present, with a translator,
throughout his trial. Further, the defendant's appellate
counsel was provided with the trial transcripts and could
therefore discuss them with his client. Therefore, we discern
no error in the judge's denial of the motion for funds.
                                                                      4


thumb and forefinger that was not bleeding heavily enough to

account for all of the blood on his clothes.     After an ambulance

arrived, the defendant became combative and was handcuffed to a

backboard by paramedics before being transported to a Boston

hospital.

    Initially, the defendant told police that his last name

began with a "Z" instead of an "S" and provided them with an

inaccurate home address.    Subsequent investigation led police to

the defendant's home in Dorchester, a three-unit apartment

building.   On entry into the defendant's third-floor apartment,

police discovered the victim lying dead on the floor between a

hallway and a bedroom.     A Boston Police Department detective

observed a large pool of blood below the victim's body.     Inside

that pool of blood was a kitchen knife with a wooden handle and

a serrated edge, which was "drastically" bent.

    The Commonwealth's chief medical examiner at the time of

trial testified to the victim's autopsy report, which had been

prepared by another medical examiner.     He detailed the victim's

injuries, noting that the "most lethal" wound was a cut

beginning at the victim's left ear and continuing to his neck.

He described the wound as a deep stab wound that injured both

the victim's carotid artery and his jugular vein, causing him to

bleed to death.   He described eleven additional injuries; five

were abrasions and six were clearly caused by a sharp object.
                                                                   5


The additional sharp object injuries included three stab wounds

(one to the left arm, one to the left shoulder, and one near the

left armpit that was four inches deep) and three, more shallow,

incised wounds (one to the outside of the left arm, one to the

left side of the chest, and one that extended from the victim's

left index finger to his ring finger).   The medical examiner

described the injury across the victim's fingers as consistent

with the victim "trying to deflect" the knife with that hand.

He further opined that the victim's wounds were consistent with

the knife that was found underneath him, and that the cut on the

defendant's hand was consistent with the murder weapon slipping

in the defendant's hand.

    Police viewed reddish-brown stains throughout the apartment

that created a trail from the area of the victim's body down the

hallway, through the kitchen, onto the back porch, over the

third-floor railing and down to the railings on the second and

first floors, through the backyard, and over a chain-link fence.

That trail then led through a vacant lot and onto nearby

streets, eventually leading to the fire station.

Deoxyribonucleic acid testing identified the victim's blood as a

possible source of many of these "reddish-brown" stains,

including those on the defendant's pants and socks, one on the

porch railing on the third floor, and one on a snow pile in the

vacant lot.
                                                                      6


    The defendant testified in his own defense and denied

killing the victim.   He testified that the victim was "almost

like my brother" and that the two had spent the day of January

31 together in the apartment cooking and drinking beer.

Although the defendant did not recall how many beers he

consumed, his testimony suggested that he was drinking beer from

at least 11:30 A.M. until approximately 4 P.M., at which point

he fell asleep on the couch.     The defendant testified that he

was awakened by loud voices arguing in the apartment and saw two

strange men inside the apartment arguing with the victim.     One

of the men had a knife and began stabbing the victim, causing

the defendant to intervene.    The defendant said that he was then

beaten by the two men and fled the apartment, going directly to

the fire station to find help.

    The judge denied the defendant's motions for a required

finding of not guilty.   At the charge conference, trial counsel

requested that the judge instruct the jury on intoxication as

relevant to both intent and deliberate premeditation.     The judge

so instructed the jury, but noted to counsel that "there is a

paucity of evidence on [intoxication] and there's certainly no

scientific evidence that I've seen."

    b.   Motion for new trial.    The defendant filed a motion for

a new trial after his conviction, asserting ineffective

assistance of counsel based on trial counsel's failure to
                                                                    7


introduce medical records showing his levels of intoxication.3

The jury had heard evidence suggesting that the defendant was

intoxicated on the night of the murder, including testimony from

a woman who had translated for the defendant at the hospital.

The woman testified that the defendant's speech "was kind of

sluggish," his breath smelled of alcohol, and his eyes were

bloodshot.   Trial counsel did not mention intoxication in her

opening statement, and she referenced the evidence of the

defendant's intoxication in her closing argument only in an

attempt to explain disparities in the defendant's recollection

of events.

     Not before the jury, however, were the defendant's medical

records, which were discussed before trial at an evidentiary

hearing on the defendant's motion to suppress.   His breathalyzer

results indicated either a 0.298 or a 0.289 blood alcohol

content (BAC), his blood alcohol readings were 0.226 and 0.288,

and he had a serum alcohol level of 307.   The defendant was

diagnosed with alcohol intoxication, and a medical technician

testified at the suppression hearing that the defendant's




     3 The defendant's motion for a new trial was argued before a
different judge, as the trial judge had retired.
                                                                     8


breathalyzer results indicated a very high level of

intoxication.4

     Trial counsel submitted an affidavit stating that her

failure to introduce medical records indicating the defendant's

high level of intoxication was not a strategic decision, but

rather an oversight on her part.   In denying the defendant's

motion without an evidentiary hearing, the motion judge

implicitly discredited trial counsel's affidavit and determined

that the record indicated "that counsel consciously chose not to

offer the medical records."   Emphasizing how a vigorous

intoxication defense would have undermined the defendant's

testimony that he was innocent, the motion judge found that

trial counsel made a tactical decision to focus on a third-party

culprit theory rather than introduce significant evidence of

intoxication.

     The defendant filed a motion for reconsideration, which was

allowed, and an evidentiary hearing on the motion for a new

trial followed.   Trial counsel testified at the hearing.    In an

amended decision, the motion judge noted that the defendant's

medical records showed "very significant intoxication" and




     4 The defendant sought to exclude evidence of his
intoxication, including both statements made and physical
evidence. His motion to suppress was denied, and the evidence
of his intoxication was available to be admitted in evidence
during trial.
                                                                      9


credited trial counsel's testimony that she had intended to

present and rely on those medical records as part of her

intoxication strategy.    He further concluded that trial counsel

never intended to call as a witness at trial the medical

technician who had administered the defendant's breathalyzer

test at the hospital and who had testified at the suppression

hearing that the defendant's BAC was "very high."

     The judge issued an amended decision on the defendant's

motion for a new trial.    The judge concluded that trial counsel

pursued a dual-defense strategy and had intended to introduce

the medical records as a part of a voluntary intoxication

defense.   The judge held that, because trial counsel

inadvertently failed to introduce those records because she

believed that they were in evidence, trial counsel's performance

fell measurably below that of an ordinary fallible lawyer.5     See

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).      The judge

determined that this error did not warrant a new trial, however,

because the jury heard "substantial evidence of intoxication

. . . and received full instructions to consider the defendant's

voluntary intoxication on the questions of intent and deliberate




     5 The judge rejected the defendant's argument that defense
counsel's strategic decision not to call the technician as a
witness to testify at trial regarding the defendant's BAC was
manifestly unreasonable, as "the overall defense strategy [was]
to preserve, but not highlight, intoxication."
                                                                   10


premeditation."   The motion judge noted that trial counsel,

despite her mistake, skillfully sought to "soft-pedal" the

intoxication defense.   In other words, she attempted to present

evidence of the defendant's intoxication without undermining his

claim to innocence.

    2.   Discussion.    a.   Sufficiency of the evidence.   The

defendant maintains that the evidence presented at trial was

insufficient to establish deliberate premeditation, and that the

judge's denial of his motions for a required finding of not

guilty was therefore error.    We review the denial of a motion

for a required finding of not guilty to determine "whether the

evidence offered by the Commonwealth, together with reasonable

inferences therefrom, when viewed in its light most favorable to

the Commonwealth, was sufficient to persuade a rational jury

beyond a reasonable doubt of the existence of every element of

the crime charged."    Commonwealth v. Whitaker, 460 Mass. 409,

416 (2011), quoting Commonwealth v. Lao, 443 Mass. 770, 779

(2005), S.C., 450 Mass. 215 (2007) and 460 Mass. 12 (2011).       See

Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).

    To prove murder in the first degree on the theory of

deliberate premeditation, the Commonwealth must prove "not only

that the defendant intended to kill, but that the defendant

decided to kill after a period of reflection."     Whitaker, 460

Mass. at 418.   There is "[n]o particular length of time of
                                                                   11


reflection . . . required to find deliberate premeditation, and

the decision may be made in only a few seconds."   Commonwealth

v. Rakes, 478 Mass. 22, 34 (2017).   Circumstantial evidence

alone may be sufficient to prove deliberate premeditation.

Commonwealth v. Veiovis, 477 Mass. 472, 480 (2017).

    We have recognized as proper considerations in a deliberate

premeditation analysis the number and severity of the injuries,

including defensive wounds, the procuring of a murder weapon in

one room and carrying it to use in another, and the location of

a victim's wounds.   See Whitaker, 460 Mass. at 419 ("Deliberate

premeditation may be inferred from the nature and extent of a

victim's injuries, the duration of the attack, the number of

blows, and the use of various weapons"); Commonwealth v. Nolin,

448 Mass. 207, 216 n.7 (2007) (deliberate premeditation

established by "the number and severity of the injuries" to

victim's face and head).   See also Commonwealth v. Townsend, 453

Mass. 413, 429 (2009) (victim's fifty-eight stab wounds,

including several defensive wounds, sufficient for deliberate

premeditation); Commonwealth v. Farley, 432 Mass. 153, 157-158

(2000), S.C., 443 Mass. 740, cert. denied, 546 U.S. 1035 (2005)

(evidence sufficient to establish deliberate premeditation where

"the Commonwealth relied on the fact that the victim had been

stabbed multiple times; the location of the wounds; the duration

of the attack; and the inference that the defendant carried a
                                                                   12


knife from the kitchen to the victim's upstairs bedroom");

Commonwealth v. Andrews, 427 Mass. 434, 440 (1998) (shooting

unarmed victim four times from close range sufficient for

deliberate premeditation); Commonwealth v. Watkins, 373 Mass.

849, 852 (1977) ("that the defendant, after a quarrel, went to

the kitchen, picked up a knife, and returned to stab the victim

is sufficient" for premeditation).

    We conclude that, here, the evidence and the reasonable

inferences that stem from it, considered in the light most

favorable to the Commonwealth, were sufficient to prove that the

murder was deliberately premeditated.     The knife used to kill

the victim was a kitchen knife, and the location of the victim's

body between the hallway and a bedroom allows for a reasonable

inference that the defendant retrieved the weapon from the

kitchen before the killing.    The fatal wound was a deep wound to

the victim's neck.   The victim had at least six other stab or

incised wounds, including defensive wounds on his left hand and

injuries to his left side, arm, and shoulder, that left the

knife "drastically" bent.     The judge's denial of the defendant's

motions for a required finding of not guilty was proper.

    b.   Ineffective assistance of counsel.     The defendant

maintains that he was deprived of effective assistance of

counsel at trial because his counsel failed to introduce the

defendant's medical records indicating his high level of
                                                                   13


intoxication on the night of the murder.   Because the defendant

was convicted of murder in the first degree, we review the claim

under the more favorable standard articulated in G. L. c. 278,

§ 33E, under which we must determine whether there was a

substantial likelihood of a miscarriage of justice.

Commonwealth v. Alicea, 464 Mass. 837, 845 (2013), quoting

Commonwealth v. Gonzalez, 443 Mass. 799, 808 (2005).   To make

this determination, we ask "whether there was an error in the

course of the trial (by defense counsel, the prosecutor, or the

judge) and, if there was, whether that error was likely to have

influenced the jury's conclusion."   Alicea, supra, quoting

Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469

Mass. 447 (2014).   "[W]e consider a defendant's claim even if

the action by trial counsel does not constitute conduct 'falling

measurably below that . . . of an ordinary fallible lawyer.'"

Gonzalez, supra at 808-809, quoting Commonwealth v. MacKenzie,

413 Mass. 498, 517 (1992).6

     We agree with the motion judge that trial counsel's

oversight in failing to introduce the defendant's medical


     6 This standard differs from the Saferian standard motion
judges apply when ruling on motions for a new trial based upon
ineffective assistance of counsel claims. Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). Although this difference in
standards does not have an impact on our decision in this case,
we note that it may, at times, result in a reversal of a motion
judge's decision even though the motion judge may well have been
affirmed if we were applying the same standard of review.
                                                                     14


records was error.     We differ from the motion judge's ruling

that it was a reasonable strategic decision by trial counsel to

not supplement those records with expert testimony regarding the

relationship between the BAC reading and intoxication.        See

Commonwealth v. Colturi, 448 Mass. 809, 817-818 (2007) ("the

jury would be left to guess" at meaning of defendant's BAC

absent expert testimony).

    We recognize that trial counsel was faced with a difficult

strategic predicament at trial.     The defendant, as is his

constitutional right, testified in his own defense.    See

Commonwealth v. Brown, 479 Mass. 163, 171 (2018).     He

unequivocally denied killing the victim.     Therefore, the motion

judge found that trial counsel decided to pursue the voluntary

intoxication defense ever mindful of its potential to undercut

the primary defense of innocence.     See Commonwealth v. Morales,

453 Mass. 40, 43-45 (2009).    The motion judge ultimately

concluded that trial counsel "soft-pedaled" the intoxication

defense so as to leave the question in the jury's hands without

overemphasizing the defendant's intoxication.     There are

situations where the appropriate course of action would be to

pursue alternative defenses -- "rid[e] 'two horses'" into

battle.   Commonwealth v. Kolenovic, 471 Mass. 664, 676 (2015),

S.C., 478 Mass. 189 (2017).    Trial counsel chose such a strategy

in the present case.    However, having made that decision, trial
                                                                   15


counsel was required to pursue each of those defenses

effectively.    Although the choice to soft-pedal the intoxication

defense was reasonable, her failure to introduce the most

compelling evidence of the defendant's intoxication was error.

    Nevertheless, the jury were presented with evidence that

allowed them to consider the question of intoxication.    Most

notably, the defendant testified that he had spent at least four

and one-half hours drinking beer with the victim on the day of

the murder, although he did not know how many beers he had

consumed.   The woman who interacted with the defendant at the

hospital noted that his breath smelled of alcohol, his eyes were

bloodshot, and his speech was sluggish.    Although there is no

dispute that the defendant drank and showed signs of

intoxication, there also was ample evidence before the jury to

show that the defendant was not intoxicated to the point of

debilitation.   He was coherent in his interactions with medical

personnel and was physically able to climb to the ground from

the deck of his third-floor apartment.

    The judge instructed the jury that they could consider the

mitigating effect of voluntary intoxication, stating, "[A]ny

evidence that you find credible of the defendant's consumption

of alcohol, you may consider that evidence in determining

whether the defendant specifically intended to commit an offense
                                                                   16


or whether the defendant deliberately premeditated the killing

of [the victim]."

    Because the defendant's intoxication may have been

probative of a lack of capacity to formulate the intent

necessary to prove murder by deliberate premeditation, the jury

could have found the defendant guilty of a lesser offense or

acquitted him had they determined his level of intoxication to

be "debilitating."   Commonwealth v. Carter, 475 Mass. 512, 524

(2016).   See Commonwealth v. Murphy, 442 Mass. 485, 504 (2004).

That debilitation must be to the point that it "could support a

reasonable doubt as to the defendant's ability to form the

requisite criminal intent" or to deliberately premeditate.

Commonwealth v. Lennon, 463 Mass. 520, 523 (2012).     As evidenced

by the request for an intoxication instruction, trial counsel

pursued this defense.   Trial counsel also pointed to the

defendant's intoxication in her closing argument as a possible

explanation for disparities in the defendant's account of the

night in question.   It was an error by counsel, therefore, to

not introduce the defendant's medical records and accompanying

expert testimony to explain the significance of his BAC,

particularly because expert testimony likely would have shown

the BAC to demonstrate a high level of intoxication.    See

Commonwealth v. Wall, 469 Mass. 652, 671 (2014) (testimony that

BAC of 0.21 per cent "very high").
                                                                        17


    Therefore, the question is whether this error created a

substantial likelihood of a miscarriage of justice.     Despite

trial counsel's errors, her approach to the trial was consistent

with the motion judge's determination that she "soft-pedaled"

the intoxication defense.    At the time of the closing argument,

trial counsel believed that the defendant's medical records had

been entered in evidence.    Despite this belief, she opted not to

argue that the defendant's intoxication diminished his capacity

to form intent or deliberately premeditate.    This suggests that

although trial counsel chose to ride two horses into battle, she

focused primarily on only one of them in closing argument.         It

"is a well-known and time-honored approach" to avoid emphasizing

a defense that would undermine a primary defense theory.

Commonwealth v. Walker, 443 Mass. 213, 228 (2005).    See

Commonwealth v. Spray, 467 Mass. 456, 473-475 (2014).       When

considering a defense attorney's strategy at trial, "we conduct

our review with some deference to avoid characterizing as

unreasonable a defense that was merely unsuccessful."

Kolenovic, 471 Mass. at 673, quoting Commonwealth v. Valentin,

470 Mass. 186, 190 (2014).    "This measure of deference is as it

must be because, ultimately, counsel alone has the benefit of

the full factual picture that dictates the choice of those

matters to be revealed to the fact finder and those that are

better left unexposed to court room scrutiny.    From that vantage
                                                                  18


point, counsel 'knows best how to defend a client.'"    Kolenovic,

supra, quoting Commonwealth v. Glover, 459 Mass. 836, 843

(2011).7

     We recently considered a similar question in Commonwealth

v. Montrond, 477 Mass. 127, 134-136 (2017), where the

defendant's trial counsel argued that a shooting was accidental

while choosing not to introduce evidence of the defendant's

possible intoxication.   Although the evidence of intoxication in

the Montrond case, which we termed to be "tepid at best,"8 may


     7 The defendant's appellate counsel argues that the
defendant's testimony at trial was fantastical and would not
have been credited by the jury. Although that may be so, the
decision whether to testify is the prerogative of the accused.
Commonwealth v. Jenkins, 458 Mass. 791, 803 (2011) ("The
decision whether to testify is an important strategic one to be
made by the defendant in consultation with his attorney").
Defense counsel may sometimes disagree with a defendant's
decision to testify and may provide advice to assist the
defendant in that decision. See generally id. at 802-804.
Ultimately, should the defendant decide to testify to his or her
side of the story, respect for the defendant's personal autonomy
requires that the defendant's own attorney not undermine that
decision. See id. at 803 (waiver of right to testify on one's
own behalf must be knowing and intelligent). But see Mass. R.
Prof. C. 3.3 (e), as appearing in 471 Mass. 1416 (2015) (where
defense counsel knows that his or her client is going to testify
falsely, he or she "may not aid the client in constructing false
testimony, and has a duty strongly to discourage the client from
testifying falsely, advising that such a course is unlawful");
Commonwealth v. Mitchell, 438 Mass. 535, 550-553, cert. denied,
539 U.S. 907 (2003). See also Nix v. Whiteside, 475 U.S. 157,
173 (1986).

     8 The evidence suggesting that the defendant in Montrond was
intoxicated was limited to a first responder's description of
the defendant as "reek[ing] of [body odor], like sweat and [body
                                                                       19


have been "somewhat helpful to the defendant[]," we concluded

that it "hardly would have given rise to a compelling inference

that the defendant was so intoxicated that he could not

appreciate the need to check the safety lock before pointing a

loaded gun at someone's head and pulling the trigger."       Id. at

136.       The evidence of intoxication here rises above the tepid

level seen in the Montrond case.       It is not, however, so strong

that we are concerned that the failure to admit medical evidence

of the defendant's intoxication would have been likely to

influence the jury's decision.

       The defendant's BAC, although high, would have been just

one of many factors the jury could have considered in

determining whether he was intoxicated to the point of

debilitation, such that there was "reasonable doubt as to [his]

ability to form the requisite criminal intent."9      Lennon, 463

Mass. at 523.      Although evidence of the defendant's BAC would



odor], and of alcohol" and the defendant's emotional behavior
that may have been viewed as consistent with being alcohol
related. Commonwealth v. Montrond, 477 Mass. 127, 136 (2017).

       There is no BAC that constitutes "per se" debilitation in
       9

the way seen in prosecutions for operating while under the
influence. Colturi, 448 Mass. at 810. With that in mind, there
is ample evidence to suggest that the defendant was not
intoxicated to the point of debilitation. He was coherent in
talking to firefighters, paramedics, and hospital staff. He was
capable of climbing from the back porch of his third-floor
apartment to the ground, without stairs. He also had the
presence of mind and ability to climb a fence, proceed through a
vacant lot, and walk directly to a fire station.
                                                                   20


have been the strongest evidence to suggest he was debilitated

by alcohol, the entirety of the evidence before the jury coupled

with trial counsel's reasonable decision to "soft-pedal" the

intoxication defense leaves us unpersuaded that the defendant's

medical records would have influenced the jury's verdict.     We

conclude that defense counsel's error in failing to admit them

in evidence did not create a substantial likelihood of a

miscarriage of justice.

    c.   Closing argument.   The defendant asserts that the

prosecutor made improper remarks in his closing argument.

Because trial counsel did not object to the closing argument at

trial, we review to determine whether there was an error and, if

so, whether that error created a substantial likelihood of a

miscarriage of justice.   See Veiovis, 477 Mass. at 488.

    "To be sure, 'prosecutors are held to a stricter standard

than are errant defense counsel and their clients.'"

Commonwealth v. Goitia, 480 Mass. 763, 775 (2018), quoting

Commonwealth v. Arroyo, 442 Mass. 135, 147 (2004).     The

defendant contends that three portions of the prosecutor's

closing argument were improper:   (1) a reference to the twenty-

month period between the murder and trial, which accompanied the

prosecutor's suggestion that the defendant now had no more time

to produce a different explanation for the victim's death, such

as a third party; (2) the statement that the jury should use
                                                                  21


their "moral compass" and "gut" in evaluating the evidence and

testimony; (3) the statement that the defendant's intoxication

was "not an excuse" for the murder, "[w]hether he had two beers,

four beers, or [forty-four] beers."

    We discern no error in the prosecutor's reference to the

twenty-month period between the murder and trial.    The

prosecutor discussed that period of time while highlighting the

disparities in the defendant's story throughout that time

period, including the detailed nature of the defendant's

testimony at trial as compared to the defendant's statements at

the time of the killing.   This portion of the argument was

grounded in the evidence presented at trial and was a reasonable

commentary on the defendant's credibility.    See Commonwealth v.

Tu Trinh, 458 Mass. 776, 788 (2011).

    The prosecutor's call for jurors to follow their moral

compass is troublesome, but we conclude that even if it was

error, it did not create a substantial likelihood of a

miscarriage of justice.    The relevant portion of the

prosecutor's argument is as follows:

    "You . . . impartial jurors also have something inside you
    besides your commonsense. And it's what I refer to as a
    moral compass. That little moral compass, when you know
    based on your gut that something's wrong, that something is
    askew with a certain situation. And I suggest to you,
    ladies and gentlemen, based on the evidence in this case,
    that your moral compass goes haywire when you consider what
    was in that apartment and his actions and his statements in
    the aftermath of 8:40 P.M. approximately on January 31st of
                                                                   22


    2005. You know, based on your everyday life experience
    that something was horribly amiss with his behavior, his
    statements and his actions that night."

It is well established that it is proper to ask a jury to rely

on their common sense and life experience in assessing evidence

and credibility.   See Lao, 460 Mass. at 22.   The prosecutor's

invocation of the jury's "moral compass" however, was a step

beyond an ordinary call for the jury to rely on their life

experience and common sense, and approached an improper appeal

to the jury's emotions.   It was thus better left unsaid.    We

need not determine whether it was improper, however, because

even if it was, we are unpersuaded that this sole misstatement

would undermine the jury's verdict, particularly where the jury

were properly instructed that closing arguments are not

considered evidence.   See Commonwealth v. Kozec, 399 Mass. 514,

517 (1987).   Considering the statement in the context of the

rest of the closing argument and the trial as a whole, any

prejudice was minor and does not warrant reversal.   See

Commonwealth v. Braley, 449 Mass. 316, 329 (2007).

    Finally, although the prosecutor's statement that the

defendant's possible intoxication did not "excuse" his actions

was technically consistent with the law, we are concerned that

the prosecutor crossed the line into a misstatement of the law.

See Commonwealth v. Rollins, 470 Mass. 66, 81 (2014), quoting

Commonwealth v. Bins, 465 Mass. 348, 367 (2013) ("We have
                                                                  23


repeatedly warned that, in 'closing argument,' '[l]awyers shall

not and must not misstate principles of law'").   It is true that

intoxication does not serve as an excuse in the way that, for

instance, self-defense does.   See Commonwealth v. Walczak, 463

Mass. 808, 817 (2012) (Lenk, J., concurring), quoting Model Jury

Instructions on Homicide 8 (1999) (self-defense can serve as

legal justification for a killing, rather than mitigating

factor).   In the context of the trial as a whole and the rest of

the prosecutor's closing argument, however, the prosecutor's

statement regarding excuse appears to be a colloquial suggestion

that the defendant's intoxication could neither excuse his

actions nor diminish his culpability.   Thus, the prosecutor's

pronouncement that the defendant's intoxication was no excuse

for his actions adversely had an impact on the effectiveness of

the judge's intoxication instruction.

    That error, however, was not significant enough that our

confidence in the jury's decision is shaken.   The defendant's

trial counsel referred to the defendant's intoxication in her

closing argument only as a means to explain discrepancies

between his multiple versions of the night of the killing.     The

prosecutor's statement, while erroneous, was a brief, isolated

statement in his closing argument and was not egregious enough

to infect the whole of the trial.   Finally, the judge properly

instructed the jury that closing arguments are not evidence, and
                                                                     24


it is well-established that "[t]he jury are presumed to follow

instructions."   Commonwealth v. Hernandez, 473 Mass. 379, 392

(2015), citing Commonwealth v. Andrade, 468 Mass. 543, 549

(2014).   See Kozec, 399 Mass. at 517.   With all that in mind, we

conclude that the prosecutor's error was unlikely to have

influenced the jury's ultimate decision and therefore did not

create a substantial likelihood of a miscarriage of justice.

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

asks us, in the alternative to his grounds for appeal addressed

above, to exercise our authority under G. L. c. 278, § 33E, to

either order a new trial or reduce his conviction to murder in

the second degree.   It is our statutory duty "to consider

broadly the whole case on the law and the facts to determine

whether the verdict is consonant with justice" (quotations and

citation omitted).    Commonwealth v. Vargas, 475 Mass. 338, 363-

364 (2016).   "[F]or any . . . reason that justice may require,

[we may] (a) order a new trial or (b) direct the entry of a

verdict of a lesser degree of guilt, and remand the case to the

superior court for the imposition of sentence."     G. L. c. 278,

§ 33E.    Although we recognize that our power under § 33E "is to

be exercised sparingly," Commonwealth v. Seit, 373 Mass. 83, 95

(1977), we are persuaded that, here, a verdict of murder in the

second degree would be more "consonant with justice."     Vargas,

supra.
                                                                   25


     Our duty under § 33E "does not . . . convert this court

into a second jury."   Commonwealth v. Penn, 472 Mass. 610, 621

(2015), cert. denied, 136 S. Ct. 1656 (2016), quoting

Commonwealth v. Franklin, 465 Mass. 895, 916 (2013).    But this

case presents one of the rare situations in which we conclude

that the jury's verdict of murder in the first degree was

supported by the evidence, but was not consonant with justice.

In Commonwealth v. Lanoue, 392 Mass. 583, 591-592 (1984), S.C.,

400 Mass. 1007 (1987) and 409 Mass. 1 (1990), we exercised our

authority under § 33E where the evidence was sufficient to

convict the defendant of murder in the first degree on a theory

of deliberate premeditation, but the evidence was entirely

circumstantial and "thin."   There was evidence that the victim

in the Lanoue case had sustained multiple injuries and that the

defendant was intoxicated at the time of the killing, and

although the judge instructed the jury on the relationship

between intoxication and deliberate premeditation, the adequacy

of the instruction was questionable.   Id.   We reduced the

defendant's verdict to murder in the second degree.     Id. at 592.

     Due to the unusual nature of this case, we reach the same

conclusion as we did in the Lanoue case.10   There was sufficient


     10In Commonwealth v. Deconinck, 480 Mass. 254, 255, 256
(2018), we declined to exercise our authority under G. L.
c. 278, § 33E, and upheld the defendant's conviction of murder
                                                                   26


evidence before the jury to support their conclusion that the

defendant had killed the victim after deliberate premeditation,

but it was far from compelling.   In addition to there being no

definitive evidence as to what happened in the apartment on the

night of the killing other than the victim being stabbed

multiple times, there is nothing to suggest that there was any

ill will between the defendant and the victim, or to suggest

that there was any motive for the killing.   See Seit, 373 Mass.



in the first degree on a theory of extreme atrocity or cruelty.
We did so despite evidence of intoxication and evidence
suggesting that the killing may have been done in self-defense
or in the midst of sudden combat or heat of passion. Id. at
255, 258-259. The Deconinck case, however, is readily
distinguishable from the present case. First and foremost, the
evidence in support of a verdict of murder in the first degree
on a theory of extreme atrocity or cruelty in Deconinck was
overwhelming. Indeed, there was no challenge to the sufficiency
of the evidence on appeal. The defendant in Deconinck inflicted
sixty-nine stab wounds on the victim, including a deep stab
wound to the victim's chest, and two deep stab wounds to his
back that pierced his organs. Id. at 257. Here, the evidence of
deliberate premeditation, the only theory of murder in the first
degree before the jury, was well short of compelling. There is
no evidence as to how or why the defendant killed the victim,
and the cause of death appears to have been a single stab wound
to the victim's neck. Secondly, in Deconinck, the "issue of
self-defense, which was the central theory of defense, was fully
aired at trial." Id. at 273. Here, the jury were deprived of
the strongest evidence of intoxication. It is true that the
defendant in Deconinck, like the defendant here, had been
drinking and consuming drugs, and that his BAC was 0.11 when
measured at the hospital, suggesting it was 0.15 or 0.16 at the
time of the killing. Id. at 259-260. However, that BAC was
approximately one-half that of the defendant in this case.
Finally, in Deconinck, there was evidence from a percipient
witness who observed the defendant escalate the level of
violence with the victim. Id. at 258-260. Here, the
precipitating cause of the murder is a mystery.
                                                                    27


at 94 (whether defendant and victim had good relationship prior

to killing relevant to mitigation analysis under § 33E).    The

defendant's intoxication is another factor that we consider,

particularly where it was incompletely presented as a defense

and where the prosecutor made an inappropriate statement about

it in his closing argument.    See Commonwealth v. Ransom, 358

Mass. 580, 583 (1971) (alcohol having "probably played a part"

in murder proper consideration in § 33E analysis).    In sum, we

conclude that a conviction of murder in the second degree is

more consonant with justice and we reduce the verdict

accordingly.

    The case is remanded to the Superior Court, where the

verdict of murder in the first degree and sentence imposed shall

be vacated.    A verdict of guilty of murder in the second degree

shall be entered, and a sentence imposed.

                                     So ordered.
