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SJC-08768

              COMMONWEALTH   vs.   JAMES ANTHONY MARTIN.



        Middlesex.       December 5, 2019. - May 5, 2020.

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


Homicide. Felony-Murder Rule. Constitutional Law, Assistance
     of counsel, Retroactivity of judicial holding.
     Retroactivity of Judicial Holding. Practice, Criminal,
     Capital case, Assistance of counsel, Retroactivity of
     judicial holding, Request for jury instructions.



     Indictment found and returned in the Superior Court
Department on December 14, 1976.

     The case was tried before Robert A. Mulligan, J., and a
motion for a new trial, filed on February 18, 2016, was heard by
Merita A. Hopkins, J.


     Claudia Leis Bolgen for the defendant.
     Timothy Ferriter, Assistant District Attorney, for the
Commonwealth.


    GANTS, C.J.    On the evening of September 9, 1976, the

defendant, James Anthony Martin, attempted to steal the cash

that Richard Paulsen and his older brother, Edward, brought to
                                                                       2


purchase drugs from Gordon Kent Brown in Brown's apartment in

Cambridge.   In doing so, the defendant shot and killed Edward1

with a single gunshot in the chest.   The defendant then fled to

Canada, where he was apprehended late in 1999.   On May 10, 2001,

a Superior Court jury found the defendant guilty of murder in

the first degree on the theory of felony-murder.     He

subsequently moved for a new trial, which motion was denied by a

judge other than the trial judge, who had retired.    We

consolidated the defendant's direct appeal from his conviction

with his appeal from the denial of the motion for a new trial.

     The defendant makes three arguments on appeal.       First, he

contends that his motion for a new trial was wrongly denied

because he was deprived of his constitutional right to the

effective assistance of counsel, especially in light of

strategic errors his attorney made in his opening statement,

which resulted in a substantial likelihood of a miscarriage of

justice.   Second, the defendant claims that we should extend the

reach of our holding in Commonwealth v. Brown, 477 Mass. 805,

807 (2017), cert. denied, 139 S. Ct. 54 (2018), to his case,

where the appeal was pending when Brown was decided, even though

we limited that holding to cases where trial commenced after the

date of the opinion, which would exclude this case.       Third, the


     1 To avoid confusion, we refer to Richard by his first name
and Edward as the victim.
                                                                   3


defendant argues that the trial judge committed prejudicial

error when he declined the defendant's request that the jury be

instructed on the elements of voluntary and involuntary

manslaughter.

    The defendant also asks that we exercise our extraordinary

authority under G. L. c. 278, § 33E, and order a new trial or

reduce the defendant's conviction to murder in the second

degree, because his conviction of murder in the first degree is

not consonant with justice.   We affirm the defendant's

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

motion for a new trial, and after plenary review of the entirety

of the record, we decline to exercise our authority under § 33E.

    Background.   We recite the facts as the jury could have

found them in the light most favorable to the Commonwealth,

reserving certain details for later discussion.

    In 1976, the victim introduced Richard to a drug dealer,

Brown, who could supply Richard with drugs.   Richard's first

purchase from Brown took place outside Symphony Hall in Boston.

The victim accompanied Richard, who paid cash to Brown in

exchange for the drugs.   As testified to by Richard, the

transaction went "very smoothly" and was a "friendly"

interaction.

    Richard's second purchase from Brown took place at Brown's

apartment on the second floor of a three-story house in
                                                                    4


Cambridge.   The victim again accompanied Richard to the

transaction, and in the living room of the apartment, Brown

handed Richard the drugs in exchange for cash.   During these

first two transactions, Richard purchased an amount of marijuana

for $150 and one pound of hashish for $900.2

     For the third purchase, the victim arranged for Richard to

buy one kilogram of hashish from Brown for $1,600 at Brown's

apartment.   On September 9, 1976, the victim and Richard arrived

at the apartment between 9 P.M. and 9:30 P.M.    Richard carried

with him a box with a scale inside to weigh the hashish and

$1,600 for the purchase.   When they entered the apartment, Brown

appeared to be agitated and uneasy, which was completely

different from his "happy-go-lucky" demeanor during the first

two transactions.   Brown told Richard and the victim that the

person bringing the drugs had not yet arrived.   Brown said he

was going to step out and buy some beer but would be right back.

     Uncomfortable with Brown's behavior, the victim and Richard

decided to leave the apartment.   As they walked downstairs, they

passed two people ascending the stairs -- a woman and a man --

later identified as Meredith Weiss and the defendant, who

carried a paper bag.   Once the victim and Richard were outside,

Richard could see that the defendant and Weiss were inside


     2 Richard testified that he could not recall which of the
two transactions involved hashish and which involved marijuana.
                                                                     5


Brown's apartment.    The victim and Richard returned to the

apartment and asked Brown, who had since returned, whether those

two individuals were the people with the drugs.     Brown said that

they were not, so the victim and Richard left again and drove

around for fifteen minutes before returning to the apartment,

with Richard still carrying the box containing the scale and the

money.   Brown, his demeanor still uneasy, let the brothers into

the apartment and brought them into a bedroom.     Brown then left

them alone in the bedroom, telling them that he had to speak

with his landlord.

    Immediately after Brown left, the defendant entered the

bedroom from an adjoining room.     The defendant pointed a gun at

Richard and the victim and asked them where the money was.     The

victim raised his hands in the air, palms wide open, and told

the defendant to "wait a minute."    The defendant then shot the

victim in the chest from a distance of approximately five feet.

The victim fell backwards, and Richard ran to him, guiding him

to the floor.   The defendant again asked where the money was,

and Richard told him that the money was in their car.    The

defendant searched the victim's pockets and left.

    After the defendant left the bedroom, Richard went out the

window onto the porch and dropped to the ground.     He saw people

playing softball at a field across the street, so he ran over,

screaming for help.   Richard then led some ball players back to
                                                                   6


the apartment, and two individuals performed cardiopulmonary

resuscitation on the victim until emergency services arrived.

The victim died that night of a single gunshot wound to the left

chest.

     Weiss, who was the defendant's girlfriend at the time,

testified that she had driven the defendant to the apartment

that evening.   The defendant told her that he needed to go to

Brown's apartment for a drug deal, although Weiss did not see

any drugs that day.   The defendant also told Weiss that he was

carrying a gun for protection because he was concerned about

selling drugs to individuals he did not know.    Weiss and the

defendant passed two men as they went up the stairs to Brown's

apartment.   After Brown spoke privately with the defendant, the

defendant asked Weiss to wait downstairs, so she returned to the

vehicle.   She had waited there about ten to twenty minutes when

she heard a bang.

     Five minutes later, Brown entered Weiss's car, followed

shortly by the defendant.   Both men appeared panicked, and the

defendant told Weiss, "Let's get out of here."   Weiss drove

Brown and the defendant to the apartment in Somerville that she

shared with the defendant and then to Medford, where they stayed

for two nights at a friend's apartment.3   After learning that the


     3 Weiss testified that she could not recall if Brown was
still with them when she and the defendant went to Medford.
                                                                    7


victim had died, Weiss drove the defendant and Brown to a

Boston-area bridge, where the firearm was thrown into the water,

and continued on to the Port Authority bus station in New York

City, where she dropped off the defendant and Brown.    Weiss

continued on to her parents' home in New Jersey, where she was

arrested and charged with being an accessory after the fact to

murder.4

     Brown and the defendant traveled by bus to California,

where the defendant telephoned his cousin, Douglas Nesbitt, late

one night and asked if they could stay with him.    Less than an

hour later, the defendant and Brown appeared at Nesbitt's

apartment.    Nesbitt testified that the defendant explained that

he was in California because he had been involved in a drug deal

in Cambridge involving "two white guys" that had "gone bad."5

The defendant told Nesbitt that, while he was negotiating the

drug deal, one of the white guys pulled out a gun and "tried to

stick them up."    He and one of the white guys wrestled over the

gun, and the older white guy got shot.    When Nesbitt returned

home the next day, the defendant and Brown had left.


     4 This charge was dismissed without prejudice in 1977. In
1982 Weiss entered into an agreement with the Commonwealth in
which the Commonwealth agreed not to renew charges against her
if she agreed to testify against Brown at his 1982 trial and
against the defendant if and when he was arrested and tried.

     5   The victim and Richard are Caucasian; the defendant is
black.
                                                                     8


    The defendant remained a fugitive for many years.      In

December 1999, he was apprehended by Canadian authorities in

Montreal, where he lived under a different name, and was brought

to Massachusetts to be tried for murder.

    Richard Kaufman, a forensic chemist at the State police

crime laboratory, analyzed the victim's jacket for gunpowder

residue in the area where the bullet penetrated the victim's

chest and did not detect any nitrate particles or partially

burned gunpowder particles around the hole in the jacket.       He

testified that if the weapon had been fired close to the

garment, there would be gunpowder residue in that area.

    William Duke, a State police ballistician, attended the

victim's autopsy and offered the opinion that, in light of the

lack of evidence of any surrounding tissue damage or powder on

the skin, the wound was not a contact wound, that is, the muzzle

of the weapon was not touching or very close to the victim or to

the victim's clothing when it was fired.   Duke further opined

that, if the firearm had been shot within one foot of the

victim, he would expect to see plainly visible gunshot residue

particles on the jacket; if the firearm had been shot within six

inches, he would expect to see a heavier concentration of

gunshot residue with less spread; and if the firearm had been

pressing up against the jacket when it was fired, he would

expect to see an entrance wound almost the size of a golf ball,
                                                                       9


with heavy black singe and burn marks plainly visible on the

jacket.

    Discussion.      1.   Ineffective assistance of counsel.     The

defendant gives three reasons why he was deprived of his

constitutional right to the effective assistance of counsel.

First, defense counsel in his opening statement told the jury

that Brown would testify that "this was an armed robbery and not

a drug deal," even though the prosecutor had not expressly

promised to call Brown as a witness, and defense counsel did not

intend to call him; Brown ultimately did not testify at trial.

Second, defense counsel promised in his opening statement to

elicit through cross-examination of the testifying police

officers "how drug deals are handled," but never elicited that

testimony at trial.       Third, defense counsel visited the

defendant only six times before trial and failed adequately to

prepare for trial.    We address each claim in turn.

    a.    Describing Brown's anticipated trial testimony in

opening statement.    Before jury empanelment, at a motion in

limine hearing, the judge asked the prosecutor, "Is Mr. Brown

going to be a witness in this case?"      The Commonwealth replied

that Brown would be brought into court and that his attorney had

indicated that he would testify if called.       But the prosecutor

added, "Strategically, I don't know. . . .       [H]e will be

available to testify.      I'm not promising him to the jury."    In
                                                                   10


his opening statement, the prosecutor did not promise the jury

that Brown would be a witness or describe evidence that only

Brown would have known.   But in defense counsel's opening

statement, he declared:

    "You will hear from Gordon Brown during the course of this
    case, Gordon Kent Brown. And Gordon Kent Brown has been in
    jail for a substantial period of time. And in 1999 he had
    a parole hearing, and he was turned down for parole. The
    police came to see Gordon Kent Brown shortly after he was
    turned down for parole and asked him about [the defendant],
    asked him if he knew where he was, wanted information about
    him, so that they could arrest [the defendant]. Mr.
    Brown's response to that was in the negative initially, but
    there was a second visit shortly after the first during
    which Mr. Brown began negotiations for [the defendant's]
    whereabouts. That is, he wanted money in exchange for
    bringing information that he could provide him about [the
    defendant].

    "A year after the first parole hearing there was a second
    parole hearing. Mr. Brown who had been turned down for
    parole previously wanted to get this parole this time, and,
    so, during the course of the parole hearing he agreed to
    assist the police, to help the government in this
    prosecution against [the defendant] who had by that time
    been arrested, and based at least in part upon the
    representations that he made, that he was going to help, he
    was granted parole. At the time he was granted parole he
    knew [Richard] Paulsen's story. He knew that [Richard]
    Paulsen had told the police that this was an armed robbery
    and not a drug deal, and he knew that he had to agree with
    that story in order to get parole. And, so, he did."

    At a sidebar conference after defense counsel's opening

statement, the prosecutor stated, "I just want to be clear.    I

never promised the jury Gordon Brown," and "on the record I said

that I was -- I don't want to say ambivalent, but I didn't know

whether I was going to call Mr. Brown."   The prosecutor asked
                                                                  11


that the jury be reinstructed that opening statements are not

evidence; the judge declined to do so.   Neither the Commonwealth

nor defense counsel called Brown to testify during the course of

trial.

    At the evidentiary hearing on the motion for a new trial on

October 5, 2018, defense counsel testified that he never

intended to call Brown as a witness but expected from his

experience as a defense attorney that the Commonwealth would

call Brown to testify because Brown was on the witness list, had

entered into a "plea agreement" with the Commonwealth, and was

still in custody.   Based on his understanding of the research on

opening statements "and the concepts of primacy and recency in

persuading jurors," he wanted the jury to know of "Brown's

baggage . . . from the get go, and not after he'd been

introduced by the prosecutor," who, on direct examination, would

make "an effort to diminish the import of what his prior life

had been."   He conceded, "[H]indsight being 20/20, I might not

have done that today."

    "Where, as here, the defendant's ineffective assistance of

counsel claim is based on a tactical or strategic decision, the

test is whether the decision was 'manifestly unreasonable when

made'" (quotation omitted).   Commonwealth v. Kolenovic, 471

Mass. 664, 674 (2015), S.C., 478 Mass. 189 (2017), quoting

Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006).   In making
                                                                  12


this determination, we "focus on the point in time when counsel

made the challenged strategic decision," not with the benefit of

hindsight, and decide whether "lawyers of ordinary training and

skill in the criminal law" would consider the strategic or

tactical decision to be "competent" (citation omitted).

Kolenovic, supra.   "The manifestly unreasonable test, therefore,

is essentially a search for rationality in counsel's strategic

decisions, taking into account all the circumstances known or

that should have been known to counsel in the exercise of his

[or her] duty to provide effective representation to the client

and not whether counsel could have made alternative choices."

Id. at 674-675.

    The thrust of the defense, as articulated by defense

counsel in opening statement, was that "this was a drug deal

gone bad during the course of which the gun was flashed, a

struggle ensued, the gun went off accidentally, and [the victim]

was killed."   We conclude that, where defense counsel did not

intend to call Brown as a witness, where the prosecutor earlier

that day had told the judge in the presence of defense counsel

that, strategically, he was not sure he would call Brown, and

where the prosecutor did not tell the jury that Brown would

testify or describe any evidence that only Brown could testify

to, it was manifestly unreasonable to tell the jury that Brown

would testify that what had occurred here was an armed robbery.
                                                                    13


To be sure, if Brown were to have testified, it would have been

reasonable for defense counsel to discuss Brown's anticipated

testimony in opening statement and his motivation for giving

that testimony with the goal of influencing the jury's first

impression of the credibility of that testimony.    But where the

prosecutor had told the judge that he had yet to decide whether

to call Brown, defense counsel relied on an informed guess as to

whether Brown actually would testify.    The risk of telling the

jury that Brown would testify and corroborate Richard's version

of events far exceeded the benefit of influencing the jury's

first impression of Brown if he were to testify.    No competent

attorney would have taken this risk and made this choice.

    Counsel's ineffective assistance, however, requires a new

trial only if it created a substantial likelihood of a

miscarriage of justice, that is, only if it was reasonably

likely to have influenced the jury's conclusion.    See

Commonwealth v. Field, 477 Mass. 553, 556 (2017); Commonwealth

v. Brown, 462 Mass. 620, 630 (2012).    We conclude that it was

not reasonably likely in this case.     The overwhelming evidence

at trial was that Richard and the victim thought this was to be

a drug deal, but the defendant and Brown knew it was to be a

drug "rip-off" (to steal the cash), i.e., an armed robbery.     The

only evidence that supported the defense theory that Richard or

the victim had brought the firearm to the drug deal to conduct
                                                                   14


their own drug rip-off to steal the drugs and that the victim

was killed during a struggle over the gun came from the

defendant's description of events to Nesbitt.    That self-serving

story, told to a distant cousin whose help the defendant sought

while "on the lam," is inconsistent with Richard's testimony

(and with his conduct immediately after the shooting),

inconsistent with Weiss's testimony that the defendant brought a

gun to the apartment, and inconsistent with the forensic

evidence, which suggests that this was not a contact wound fired

at close range, as one would expect if it were an accidental

shooting during a struggle for the gun.    Defense counsel's

characterization of Brown's anticipated testimony was never

mentioned again during the presentation of evidence at trial or

in closing argument.    In short, where the prosecutor had not

decided to call Brown as a witness and defense counsel did not

intend to, it was manifestly unreasonable for defense counsel in

opening statement to have told the jury that Brown would

characterize what happened as an armed robbery, but it

reasonably could not have influenced the jury in reaching their

verdict.

    b.     Promising to elicit from testifying police officers

about "how drug deals are handled."    In his opening statement,

defense counsel told the jury:
                                                                  15


    "There's an alternative scenario that we would suggest to
    you that this was in fact a drug deal . . . and through the
    cross-examination of the police officers we suggest that we
    will show you how drug deals are handled. The drugs and
    the money are not generally in the same place at the same
    time. And in this circumstance that a sample of drugs was
    taken to the premises, a gun was carried in order to
    protect the individual from people he didn't know that were
    supposedly buying from him, that this was a drug deal gone
    bad during the course of which the gun was flashed, a
    struggle ensued, the gun went off accidentally, and [the
    victim] was killed."

The defendant correctly notes that, at trial, defense counsel

never did elicit during his cross-examination of the testifying

police officers "how drug deals are handled," or that "[t]he

drugs and the money are not generally in the same place at the

same time" during a typical drug deal.    Nor, pragmatically,

could defense counsel have expected to elicit such testimony,

where none of the testifying police officers had substantial

experience investigating drug deals.     But we need not dwell long

on this claim of ineffective assistance because, in the context

of this case, it amounts to nothing.

    The Commonwealth's theory of this case, amply supported by

Richard's testimony, was that this armed robbery occurred during

what Richard and the victim intended to be a drug deal.     Richard

testified that he and the victim came to the apartment to buy

drugs, and the defendant attempted to rob them of the money they

had brought to pay for the drugs.   There was no need for defense

counsel to cross-examine the police officers to elicit from them
                                                                    16


that this was meant to be a drug deal, because that was never in

dispute.   What was disputed is whether the defendant sought to

negotiate a drug deal, as the defendant told Nesbitt in

California, or whether the defendant simply used Richard and the

victim's belief that they were going to purchase drugs from

Brown as an opportunity for an armed robbery, as Richard

testified.   There is no risk that this assertion in opening

statement, or defense counsel's failure to elicit the promised

testimony, in any way influenced the jury's verdict.

    c.     Defense counsel's failure to visit the defendant in

jail more than six times before trial.    Between the date of

arraignment and the commencement of trial on May 8, 2001,

defense counsel visited the defendant six times while he was in

jail awaiting trial:    on January 12, 2000; March 23, 2000; June

17, 2000; April 26, 2001; May 1, 2001; and May 2, 2001.     The

defendant also contends that he received discovery from defense

counsel that counsel and the defendant never had the opportunity

to discuss; that they did not agree about trial strategy; that

he tried to telephone defense counsel numerous times between

January 2000 and April 26, 2001, but was never able to speak

with him; and that they never engaged in any written dialogue

about the case.   The defendant, however, has failed to

articulate how his defense would have been materially different

if defense counsel had visited him more often or been more
                                                                    17


responsive to his attempts to contact defense counsel.     At the

close of the evidence at trial, the judge asked the defendant if

he felt satisfied with defense counsel's representation of him;

the defendant answered "yes."    There is nothing in the

defendant's briefs and nothing we can discern from the record

that suggests that more or better communication between the

defendant and defense counsel would have yielded anything likely

to influence the jury's verdict in this case.

    2.     Retroactive application of Brown.   The defendant argues

that we should extend the reach of our holding in Brown to his

case, even though we limited that holding to cases tried after

the opinion was issued.    In Brown, 477 Mass. at 807, we revised

our common law of murder by declaring that, "in trials that

commence[d] after the date of the opinion in [that] case,"

felony-murder would no longer be an independent theory of

liability for murder but simply an aggravating element under

G. L. c. 265, § 1, permitting a verdict of murder in the first

degree where the jury found one of the three prongs of malice

but did not find deliberate premeditation or extreme atrocity or

cruelty.    In doing so, we abandoned "the fiction of constructive

malice -- that where a killing occurs in the commission of a

felony, the intent to commit the felony is sufficient alone to

establish malice."    Id. at 825 (Gants, C.J., concurring).   The

defendant contends that, as a matter of due process, equal
                                                                        18


protection, and basic fairness, we should extend our holding in

Brown to his case, even though it was tried before our opinion

in Brown and the appeal was pending when Brown was decided.        We

have declined to do so in other cases.    See, e.g., Commonwealth

v. Bin, 480 Mass. 665, 681 (2018); Commonwealth v. Phap Buth,

480 Mass. 113, 120, cert. denied, 139 S. Ct. 607 (2018).      We

decline to do so here.

      We made clear in Brown that "[f]elony-murder is a common-

law crime"; we determine its elements.    Brown, 477 Mass. at 822.

We declared that, in future trials, the element of malice would

no longer be satisfied simply by proof of intent to commit the

underlying crime:   one of the three prongs of malice would have

to be proved.   Id. at 807.   This was not a clarification of

existing common law; it constituted a change to our common law.

Nor was it a change to our law of criminal procedure; it was a

change to our substantive criminal law.    We made equally clear

that our earlier felony-murder rule, which substituted the

intent to commit the underlying felony for the malice required

for murder, was not unconstitutional.     Id. at 823.   Our decision

in Brown therefore did not announce a new constitutional rule.

Id.

      Because Brown neither established a new Federal

constitutional rule nor a new Federal rule of criminal

procedure, the United States Supreme Court precedent on which
                                                                    19


the defendant relies is inapplicable.     See Griffith v. Kentucky,

479 U.S. 314, 328 (1987) (Federal Constitution requires Federal

and State courts to retroactively apply new Federal

constitutional rules of criminal procedure to direct appeals

from convictions); Commonwealth v. Waters, 400 Mass. 1006, 1007

(1987) ("Griffith does not require this court to give

retroactive application to rules that are not based on the

Federal Constitution").     Nor do Supreme Court precedents that

provide that subsequent clarifications of existing substantive

criminal law have retroactive effect apply here, because Brown

clearly involved a change in the common law of felony-murder and

not a mere clarification.     See Fiore v. White, 531 U.S. 225,

228-229 (2001) (because Pennsylvania Supreme Court "clarified"

that crime of operating hazardous waste facility without permit

did not apply to someone who had permit but deviated from its

terms, defendant's conviction ran afoul of due process because

defendant had permit and therefore never violated statute).        See

also Bunkley v. Florida, 538 U.S. 835, 840 (2003) ("[t]he proper

question under Fiore is not whether the law has changed," but

rather what law required at time of defendant's conviction).

Thus, where we revise our substantive common law of murder, we

are free to declare that our new substantive law shall be

applied prospectively, much like the Legislature may do when it

revises substantive criminal statutes.     See Commonwealth v.
                                                                  20


Dagley, 442 Mass. 713, 721 n.10 (2004), cert. denied, 544 U.S.

930 (2005) ("When announcing a new common-law rule . . . there

is no constitutional requirement that the new rule or new

interpretation be applied retroactively, and we are therefore

free to determine whether it should be applied only

prospectively").   Cf. Commonwealth v. Galvin, 466 Mass. 286, 290

(2013), quoting G. L. c. 4, § 6, Second ("a newly enacted

[penal] statute is presumptively prospective, and '[t]he repeal

of a statute shall not affect any punishment, penalty or

forfeiture incurred before the repeal takes effect'").

    In fact, this case illustrates the wisdom of prospective

application of our new common law of felony-murder.   The

Commonwealth chose here to proceed on only one theory of murder

in the first degree, felony-murder, which at the time of trial

did not require the jury to find one of the three prongs of

malice -- that is, that the defendant shot the victim with an

intent to kill, or with an intent to cause grievous bodily harm,

or intended to do an act that, in the circumstances known to the

defendant, a reasonable person would have known created a plain

and strong likelihood that death would result.   See Model Jury

Instructions on Homicide 15-19 (1999).   Our decision in Brown

would have permitted the Commonwealth to obtain a verdict of

murder in the first degree on the theory of felony-murder, but

only if the jury were to find one of the three prongs of malice.
                                                                  21


See Model Jury Instructions on Homicide 59-60 (2018).     If we had

applied our new common law of felony-murder retroactively, we

would have been required to order a new trial in this case

because the jury were not instructed that they had to find one

of the three prongs of malice in order to find the defendant

guilty of felony-murder in the first degree.   But this would

have been unfair to the Commonwealth because, had the jury been

so instructed, it likely would have found that the defendant

acted with malice in shooting the victim, and that he did so

during the commission of an attempted armed robbery, which would

have resulted in a verdict of murder in the first degree on the

theory of felony-murder.6

     3.   Request for jury instruction on voluntary and

involuntary manslaughter.   The defendant argues that the judge

committed prejudicial error in declining the defendant's request

that the jury be instructed on voluntary and involuntary

manslaughter.   We agree that the judge erred, but we conclude

that the error was not prejudicial in the context of his other

instructions.

     Although the Commonwealth proceeded solely on the theory of

felony-murder, the judge, in accordance with our guidance at the




     6 The jury, had they been so instructed, might also have
found the defendant guilty of murder in the first degree on the
theory of deliberate premeditation.
                                                                   22


time of trial, also instructed the jury regarding murder in the

second degree, setting forth the three prongs of malice.7     Where

an instruction was to be given regarding murder in the second

degree based on a finding of malice, defense counsel asked for

jury instructions regarding the lesser included offenses of

voluntary and involuntary manslaughter.   "A manslaughter

instruction is required if the evidence, considered in the light

most favorable to a defendant, would permit a verdict of

manslaughter . . . ."   Commonwealth v. Pina, 481 Mass. 413, 422

(2019).   Here, viewing the evidence in that most favorable

light, a reasonable jury could have credited the defendant's

description of what occurred as related to Nesbitt and concluded

that the killing occurred after Richard or the victim displayed




     7 In Commonwealth v. Brown, 392 Mass. 632, 645 (1984), an
appeal from a conviction of murder in the first degree on the
theory of felony-murder, we held that "G. L. c. 265, § 1,
requires a trial judge to instruct on murder in the first and
second degrees if there is evidence of murder in the first
degree, even though there appears to be no hypothesis in the
evidence to support a verdict of murder in the second degree."
See Commonwealth v. Dickerson, 372 Mass. 783, 795-796 (1977).
Where the judge had denied that defendant's request for an
instruction on murder in the second degree, we exercised our
authority under G. L. c. 278, § 33E, to direct the entry of a
verdict of murder in the second degree. Brown, supra at 643-
644. However, in Commonwealth v. Paulding, 438 Mass. 1, 10
(2002), decided one year after the trial in the instant case, we
changed course and held that a judge need not instruct the jury
on murder in the second degree where the Commonwealth proceeds
only on the theory of felony-murder and there is no evidence of
malice that would support a verdict of murder in the second
degree.
                                                                   23


a gun while they were negotiating a drug deal and the victim

either was accidentally killed during the struggle or shot in a

heat of passion arising from reasonable provocation or sudden

combat.   Therefore, the judge erred in declining the defendant's

request for these instructions.

    Where the defendant requested such instructions and

objected to their absence, we must determine whether the error

was prejudicial.   Pina, 481 Mass. at 422.   "An error is not

prejudicial only if the Commonwealth can show 'with fair

assurance . . . that the judgment was not substantially swayed'

by it."   Commonwealth v. Rosado, 428 Mass. 76, 79 (1998),

quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).     We

conclude, with fair assurance, that the defendant suffered no

prejudice from this error.

    The judge instructed the jury that, to find the defendant

guilty of murder in the first degree on the theory of felony-

murder, they must find beyond a reasonable doubt that the

defendant brought the gun to the room in the apartment where the

brothers were waiting, took it and displayed it in a threatening

way, and did so with the intent to rob Richard and the victim of

the money they had brought.   The judge also instructed that, to

find the defendant guilty of murder in the second degree, they

must find that he came into the room with a gun and

intentionally pointed it at one of the brothers.   The judge
                                                                  24


further instructed that, to find the defendant guilty of murder

in the first or second degree, the jury must find beyond a

reasonable doubt that "there was an intentional act, that [the

defendant] shot the gun, that it wasn't an accident," and "that

he pulled the trigger intentionally."8   As a result, if the jury

had a reasonable doubt whether the events had occurred as

described by the defendant to Nesbitt (which itself is

extraordinarily unlikely), they were required to find the

defendant not guilty.   In view of these instructions and the

feeble evidence supporting a finding of manslaughter, it is

plain that the defendant was not prejudiced by the failure to

instruct the jury regarding the law governing voluntary and

involuntary manslaughter.

     4.   Review under G. L. c. 278, § 33E.   As part of our

plenary review, we have examined the record and conclude that a




     8 With respect to the charge of murder in the first degree
on the theory of felony-murder, the accident instruction was far
more favorable to the defendant than he was entitled to under
the law. See Commonwealth v. Brown, 477 Mass. 805, 831 (2017),
cert. denied, 139 S. Ct. 54 (2018) (Gants, C.J., concurring)
(under felony-murder rule "a defendant who participates in an
armed robbery is guilty of felony-murder in the first degree if
the defendant or an accomplice commits any act that results in
death, even if the act is accidental and unintended");
Commonwealth v. Evans, 390 Mass. 144, 151–152 (1983) ("A
defendant who kills a victim in the commission or attempted
commission of a robbery, while the defendant is armed with a
gun, is guilty of murder by application of the felony-murder
rule. . . . The fact that, according to the defendant, the gun
was discharged accidently is of no consequence").
                                                                   25


conviction of murder in the first degree is consonant with

justice.   We therefore decline the defendant's request to order

a new trial or to reduce the verdict to murder in the second

degree.

    We specifically address only one claim of error that was

not raised in the briefs but emerged in oral argument and was

argued by the defendant in a letter submitted under Mass. R. A.

P. 16 (l), as amended, 386 Mass. 1247 (1982):     that the judge

erred in failing to give an instruction on felony-murder in the

second degree, based on the uncharged offenses of (1) conspiracy

to violate the drug laws, G. L. c. 94C, § 40; (2) unlicensed

carrying of a firearm, G. L. c. 269, § 10 (a); and (3) armed

assault with intent to rob, G. L. c. 265, § 18.

    We have previously held "that the felony on which a charge

of felony-murder is premised may be uncharged, so long as the

evidence supports it."   Commonwealth v. Stokes, 460 Mass. 311,

315 (2011).   The defendant is correct that the evidence would

support at least the last two of the three uncharged felonies he

identifies.   "But where the felony later advanced by a defendant

as the predicate for an instruction on felony-murder in the

second degree is not itself the subject of a separate

indictment, no error occurs if the trial judge does not charge

the jury on it even though there may be sufficient evidence

supporting such a charge -- at least where, as here, no party
                                                                   26


requested such an instruction or even brought the issue to the

judge's attention at trial."   Id.   We reasoned:

    "A contrary rule has an obvious potential to undermine the
    policy of finality of criminal convictions. It is likely
    that in almost every case where a defendant has been
    convicted of felony-murder in the first degree predicated
    on a felony punishable by life imprisonment, an argument
    can later be made that the trial evidence also supported
    the existence of one or more uncharged felonies not
    punishable by life imprisonment, and that therefore the
    jury should have been instructed on felony-murder in the
    second degree. Limiting the availability of such a claim
    to cases where the felony later advanced as presenting a
    basis for a charge of felony-murder in the second degree
    was the subject of a separate indictment may strike an
    appropriate balance. The existence of the indictment puts
    the Commonwealth (as well as the trial judge) on notice
    that at least there is a theoretical possibility of
    conviction of felony-murder in the second degree."

Id. at 316.   Applying that reasoning here, we conclude that

there was no error.   Nor do we find a substantial likelihood of

a miscarriage of justice arising from the absence of an

instruction regarding felony-murder in the second degree

premised on other felonies that were not punishable by life in

prison.   The overwhelming evidence in this case was that the

defendant committed an attempted armed robbery.

    Conclusion.    We affirm the defendant's conviction of

felony-murder in the first degree and the denial of his motion

for a new trial.

                                     So ordered.
