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SJC-11535

                COMMONWEALTH   vs.   JONATHAN NIEMIC.



       Bristol.        April 9, 2015. - September 17, 2015.

 Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                            Hines, JJ.


Homicide. Practice, Criminal, Capital case, Assistance of
     counsel, Argument by prosecutor, Cross-examination by
     prosecutor, Instructions to jury. Evidence, Argument by
     prosecutor, Self-defense, Cross-examination, Impeachment of
     credibility, Prior inconsistent statement. Self-Defense.
     Constitutional Law, Assistance of counsel.



     Indictment found and returned in the Superior Court
Department on December 9, 2010.

    The case was tried before Thomas F. McGuire, Jr., J.


     Theodore F. Riordan (Deborah Bates Riordan with him) for
the defendant.
     Tara L. Blackman, Assistant District Attorney, for the
Commonwealth.


    SPINA, J.     On October 20, 2010, the defendant stabbed the

victim six times with a small folding pocket knife, killing him.

The Commonwealth's theory of motive was that both men had been
                                                                     2


vying for the affection of the same woman.    The primary dispute

at trial was whether the victim was the first aggressor, whether

the defendant acted in self-defense, and who first had

possession of the knife.    The jury convicted the defendant of

murder in the first degree on a theory of extreme atrocity or

cruelty.   On appeal the defendant asserts error by trial

counsel, by the prosecutor, and by the judge.    He claims that

trial counsel was ineffective (1) for making an incorrect

argument about voluntary manslaughter (which he asked the jury

to find), and (2) for failing to request an instruction on

involuntary manslaughter.    The defendant argues that the

prosecutor improperly cross-examined him on his right to remain

silent, including (1) questions about why he had not gone to

police with his version of events, (2) questions about his

failure to tell his grandmother and friends that he was

defending himself, and (3) questions that emphasized his failure

to tell anyone his version of events until trial.    The defendant

also contends that the prosecutor (4) improperly appealed to the

sympathy of the jury in his closing argument, and (5) made

improper argument about the defendant's failure to call

witnesses to corroborate his testimony.    The defendant asserts

that the judge erred (1) by failing to instruct the jury that

the Commonwealth must disprove the absence of excessive force in

self-defense, and (2) by giving an incorrect instruction on
                                                                        3


self-defense.   We conclude that the combined effect of the

prosecutor's closing argument and trial counsel's failure to

request a voluntary manslaughter instruction based on reasonable

provocation requires that the defendant be given a new trial.

However, we give the Commonwealth the option of either accepting

a reduction of the verdict to manslaughter, or having the

conviction vacated and proceeding with a new trial.

    1.    Background.    The jury could have found the following

facts.    We reserve other details for discussion of specific

issues.   The defendant was incarcerated on an unrelated matter

from about the middle of August, 2010, until October 15, 2010.

While he was incarcerated, the defendant wrote a letter to a

woman named Lisa whom he had started dating in June.     In the

letter he confessed that he thought she was "perfect."    During

the defendant's incarceration the victim took notice of Lisa and

began flirting with her.    After the defendant was released from

his incarceration he learned of the developing relationship

between the victim and Lisa.     This angered the defendant, who

told a friend that the next time he saw the victim he was going

to punch him in the head.    On October 19, 2010, the defendant

and Lisa socialized with another couple until about 11 P.M.        At

one point the defendant and Lisa became involved in a mild

argument over the victim.     The two couples agreed to get

together the next day.
                                                                     4


    The two couples met at about 2 P.M. on October 20, as

planned.   At about 7:30 P.M. they went to a soup kitchen in New

Bedford because Lisa had forgotten her key to the addiction

recovery house for women where she was staying, and other

residents of the recovery house were at the soup kitchen

attending an Alcoholics Anonymous meeting.     She planned to

borrow a key from one of the residents who was at the meeting.

The victim was at the meeting.    The defendant and Lisa appeared

to be having a serious conversation.

    During a break in the meeting the defendant walked over to

the victim and said he had been hearing things that the victim

was saying about him, and he felt "disrespected."    The defendant

then started punching the victim in the head.    The victim tried

to deflect the blows and backed away.    The defendant started

chasing and lunging at the victim.     He stabbed the victim six

times with a small folding pocket knife, a type of knife the

defendant owned.     The incident lasted no more than thirty

seconds.   The defendant left the scene with the people who had

arrived with him.    As they were driving, the defendant said that

he had stabbed the victim, adding, "I hope I didn't kill him."

The victim died later that night from his wounds, which included

two puncture wounds to the heart and one that completely passed

through the liver.
                                                                       5


       The defendant threw the knife into a wooded area.   It was

later recovered by police.    The defendant's friends left him at

a supermarket where he telephoned his grandmother.      He asked her

to give him a ride.    The defendant's grandmother drove him to

the home of one of his close friends.    He told one of the people

living there that he had gotten into a fight over a girl with

someone at the soup kitchen.    He said that he and the other man

got into a fist fight, and that the other man got the better of

him.    The defendant said that he went to the vehicle in which he

had arrived, retrieved a knife, and then "slashed" the other man

in the chest two or three times.    He said that he did not know

if the other man was still alive.    This person heard him make

several telephone calls trying to find out if the other man was

alive.    The defendant seemed very worried.

       Police went to the friend's house looking for the defendant

at approximately 2 A.M. on October 21, 2010.      They found him

hiding in a cubby hole in a rear hallway.      He was placed under

arrest.    Police observed a fresh cut on the defendant's right

hand between the webbing of his right index finger and his

thumb.    They also observed three fresh cuts on his left hand,

two of which were between the webbing of his index finger and

his thumb, and the third was on the pad of this thumb.

       A friend with whom the defendant had socialized on October

19 and 20, 2010, testified for the defense.      He said that the
                                                                     6


victim threw the first punch.   He also testified that about two

months before the killing, the victim had threatened to stab the

defendant.   The defendant testified in his defense.    He said

that he was fearful of the victim, who was known as a "tough

guy," and referred to as "Big Mike."     The victim was "a lot

bigger" and ten years older than the defendant.     He said that he

wanted to resolve their issues by talking when other people were

nearby.   He testified that the victim started punching him and

then pulled out a knife.   The defendant grabbed the blade of the

knife and pulled it out of the victim's hand.1    The victim came

after him and tried to grab him.   The defendant swung the knife

"wildly" in order to defend himself.     He said that he did not

realize that he was stabbing the victim, or that the victim

might be seriously hurt, and that he broke down in tears over

the incident.   He said that he never intended to kill the

victim.

     The defendant testified that he once owned a similar knife,

but not at that time.   He said that the knife that was involved

in the stabbing was not his, and that he did not recall telling

anyone that the fight was over a girl.     He denied going back to

the car in which he arrived at the soup kitchen to get the

     1
       There is no dispute that deoxyribonucleic acid (DNA)
testing on the knife handle and blade revealed blood from at
least two individuals, that the defendant's DNA matched the
major profile, and that the victim was a potential contributor
of the minor profile.
                                                                      7


knife, and he said that he had no recollection of telling anyone

that he did so.   He testified that the victim had threatened to

stab him about two months before the stabbing.

    2.   Ineffective assistance of counsel.     The defendant first

contends that trial counsel was ineffective for failing to

request a jury instruction on involuntary manslaughter, based on

his testimony that he did not intend to kill the victim.      See

Commonwealth v. Whitman, 430 Mass. 746, 753 n.13 (2000)

(involuntary manslaughter involves unintentional unlawful

killing).   We need not dwell on this issue.    The defendant cites

no authority in support of this argument.      The blade of the

knife used to kill the victim penetrated the victim's body to a

depth greater than the length of the blade.     The Commonwealth's

pathologist testified that this can occur when the force with

which the knife is thrust into the body compresses the rib cage.

The force was so great that the knife blade went completely

through the victim's liver.   The victim had been stabbed six

times, including in the chest, back, and side.     In comparable

circumstances, this court has said that an onslaught of this

degree does not support a finding that the killing was

unintentional, notwithstanding a defendant's statement that he

did not intend to kill the victim.   A request for an involuntary

manslaughter instruction properly would have been denied.     See

Commonwealth v. Tague, 434 Mass. 510, 518-519 (2001), cert.
                                                                    8


denied, 534 U.S. 1146 (2002); Commonwealth v. Dunton, 397 Mass.

101, 103 (1986); Commonwealth v. Golston, 373 Mass. 249, 260

(1977), cert. denied, 434 U.S. 1039 (1978).    Counsel was not

ineffective for failing to request an instruction that was not

warranted by the evidence.   See Commonwealth v. Leng, 463 Mass.

779, 788 (2012).

     The defendant next argues that counsel was ineffective for

making a legally incorrect and confusing argument on self-

defense and voluntary manslaughter.2    He contends that trial

counsel urged the jury to find the defendant guilty of

manslaughter because he had acted in self-defense.    The correct

statement of law, he maintains, would have been that the

defendant should be convicted of manslaughter because he had

used excessive force in self-defense.    However, he continues,

trial counsel argued self-defense, which should have culminated

in a request for a verdict of not guilty.     Counsel was

ineffective, the defendant concludes, because he failed to

explain why the verdict should be manslaughter.

     The defendant misstates trial counsel's argument.      Trial

counsel never used the term "self-defense" in his argument, and


     2
       A claim of ineffective assistance of counsel made on the
trial record alone, as here, "is the weakest form of such a
challenge because it is bereft of any explanation by trial
counsel for his actions and suggestive of strategy contrived by
a defendant viewing the case with hindsight." Commonwealth v.
Peloquin, 437 Mass. 204, 210 n.5 (2002).
                                                                      9


he expressly said that he was not asking the jury to find the

defendant not guilty.   The argument was purely factual.    Counsel

argued that the significant variations in the eyewitness

testimony were understandable because there were many people

milling about and conversing in small groups during a break in

the Alcoholics Anonymous meeting.   The various witnesses caught

different and only partial glimpses of this very brief incident.

In most instances, the glimpse that a witness caught was in his

or her peripheral vision.   As a result, no one witness saw the

entire incident, and there were obvious flaws in some

perceptions of what occurred.   The culmination and thrust of the

argument was that there was one fact that was not in dispute,

and that was that the defendant sustained cuts on his hands, and

his blood was found on the knife.   This could only be explained,

he reasoned, by the defendant's testimony that the victim was

the one who introduced the knife to the fray, and the

defendant's hands were cut as he wrested it away from him.

Counsel also argued, based on the testimony of the defendant's

friend, that the victim had been the first aggressor.      Although

counsel never used the words "self-defense" or "excessive use of

force in self-defense," it is readily apparent that counsel was

urging the jury to find that the defendant, armed with the knife

he had taken from the victim, used excessive force in self-

defense while the victim continued to pursue him.
                                                                   10


    This was not a model closing argument, but it was adequate.

Counsel's decision to focus on the single fact that was

essential to the jury's acceptance of his manslaughter theory,

namely, the victim's introduction of lethal force, without

discussing the applicable law, was not a manifestly unreasonable

strategy.   See Commonwealth v. Adams, 374 Mass. 722, 728 (1978)

(tactical decision of counsel will not constitute ineffective

assistance unless it was manifestly unreasonable when made).

Counsel reasonably could have thought that a brief closing that

concentrated on the most critical fact for the defense would

emblazon the importance of that fact on the minds of the jurors

and become the centerpiece of their deliberations.    He

reasonably could have anticipated that in short order his

closing would play directly into what the judge would instruct

the jury on self-defense and use of excessive force in self-

defense, and that it would be more beneficial to concentrate on

the facts without a discussion of the law.

    Typically (and properly), lawyers are permitted some leeway

during closing argument to discuss the law as it pertains to

their case, to give context to the facts they argue, but they

are not required to do so.   Cf. Commonwealth v. Jones, 432 Mass.

623, 628 (2000) ("Prosecutors and defense counsel must restrict

their closing arguments to the evidence and [permissible]

inferences that can be drawn from the evidence").    However,
                                                                      11


lawyers may not misstate principles of law in closing argument.

See Commonwealth v. Thomas, 401 Mass. 109, 113 (1987).    The

prosecutor barely discussed the law in his closing argument.

Counsel's decision to leave the jury with the factual crux of

the defense, without comment on the law, did not amount to

ineffective assistance.

    3.   Cross-examination of the defendant.    The prosecutor

cross-examined the defendant about his failure to tell civilian

witnesses that he was defending himself, his failure to contact

police prior to his arrest and tell them that he was acting in

self-defense, and whether the first time that he told anyone

that he was defending himself was at trial.    The defendant

argues that these questions constituted improper comment on his

right to remain silent, and that a new trial is required.       See

Doyle v. Ohio, 426 U.S. 610, 619 (1976); Commonwealth v. Person,

400 Mass. 136, 140 (1987).   There was no objection, so we review

under the standard of a substantial likelihood of a miscarriage

of justice.   See Commonwealth v. Wright, 411 Mass. 678, 681

(1992), S.C., 469 Mass. 447 (2014).

    During his direct examination the defendant testified that

he had approached the victim.   The victim "snapped" at him, and

then threw a punch at him.   The victim then produced the knife,

but the defendant grabbed it from him.   The victim came at the

defendant, who swung "wildly" at the victim to try to keep him
                                                                    12


at bay.   The defendant testified that he did not realize that he

was stabbing the victim, and that he did not intend to kill him.

Later, he called for his grandmother to pick him up.   He was in

shock and was crying over what had happened.   On cross-

examination the defendant said that he learned that the victim

had been hurt badly and that he was concerned for the victim, as

well as for himself.   He telephoned a number of people trying to

find out how the victim was doing, and what kind of trouble he

might be facing.

    Earlier in the trial a Commonwealth witness had testified

that the defendant came to the house of a friend, where the

witness had been staying.   The defendant appeared worried, and

the witness asked him what had happened.    The defendant

described the encounter with the victim, as previously

discussed, including an admission that he, the defendant, went

to the vehicle in which he arrived and obtained a knife.      The

defendant also made statements about the stabbing as he and

others drove from the scene.

    This was not a case in which the defendant was confronted

with his prearrest silence.    See, e.g., Commonwealth v.

Nickerson, 386 Mass. 54 (1982).   This was a case where the

prosecutor was confronting the defendant with his prearrest

statements, and impeaching him with inconsistencies between

those statements and his trial testimony.   The defendant never
                                                                   13


mentioned in his prearrest statements that he had acted in self-

defense or that the victim was the first aggressor.    The

prosecutor was entitled to cross-examine the defendant about

those inconsistencies, including any omissions in those

statements that were different from his trial testimony.     See

Commonwealth v. Hesketh, 386 Mass. 153, 161 (1982).     An omission

in a prior statement may render that statement inconsistent

"when it would have been natural to include the fact in the

initial statement."   Commonwealth v. Ortiz, 39 Mass. App. Ct.

70, 72 (1995).   See Commonwealth v. Perez, 460 Mass. 683, 699

(2011); Mass. G. Evid. § 613(a)(2) & notes (2015).     Where the

defendant had been worried about the fate of the victim, as well

as his own legal fate, it would have been natural to explain

that he was acting in self-defense when describing the incident

in his prearrest statement to civilian witnesses.     The

prosecutor acted appropriately when cross-examining the

defendant about what he told and what he did not tell civilian

witnesses.

    The prosecutor's cross-examination of the defendant about

his failure to seek out police to report that the victim might

be in need of medical attention, and to tell them he acted in

self-defense, was not proper.   Although the prosecutor might

properly have cross-examined the defendant about his "concern"

for the victim by asking if he called for an ambulance, it would
                                                                     14


not have been natural for him to seek out police to tell his

exculpatory story.   Compare Commonwealth v. Barnoski, 418 Mass.

523, 536 (1994).   This was error, but we conclude that it did

not create a substantial likelihood of a miscarriage of justice.

The defendant had made several prearrest statements to friends

in which he made no reference to self-defense.     We are satisfied

that questions about his failure to seek out police to say he

acted in self-defense added little, if anything, to the impact

on the jury of the several statements he made to his friends in

which he made no mention of self-defense.    Moreover, the

prosecutor did not mention the matter in his closing argument,

thus keeping any prejudice at a minimum.     See id. at 537 n.7.

    4.   Prosecutor's closing argument.     The defendant contends

that the prosecutor made improper closing argument by appealing

to the sympathy of jurors, and by arguing that the defendant

failed to call witnesses to testify about the victim's

reputation for violence.    Because the defendant did not object

to the prosecutor's argument, our review is under the standard

of a substantial likelihood of a miscarriage of justice.     See

Wright, 411 Mass. at 681.   In making that determination, the

cumulative effect of all the errors must be "considered in the

context of the arguments and the case as a whole."     Commonwealth

v. Maynard, 436 Mass. 558, 570 (2002).      If a defendant

establishes that the prosecutor's closing argument was improper,
                                                                  15


we are guided by the following factors when deciding whether a

new trial is required:   "whether 'defense counsel seasonably

objected to the arguments at trial . . . whether the judge's

instructions mitigated the error . . . whether the errors in the

arguments went to the heart of the issues at trial or concerned

collateral matters . . . whether the jury would be able to sort

out the excessive claims made by the prosecutor . . . and

whether the Commonwealth's case was so overwhelming that the

errors did not prejudice the defendant.'"   Id., quoting

Commonwealth v. Santiago, 425 Mass. 491, 500 (1997), S.C., 427

Mass. 298, and 428 Mass. 39, cert. denied, 525 U.S. 1003 (1998).

See Commonwealth v. Kozec, 399 Mass. 514, 516-518 (1987).

    The prosecutor's argument covered thirty pages of the trial

transcript.   For the most part, it was highly structured and

grounded in the trial record.   About one-third of the way

through his closing, when discussing the defendant’s testimony

that he was "scared" of the victim, that the victim was bigger

and ten years older, and that the victim had a reputation as a

"tough guy," the prosecutor argued as follows:

    "Bad guy, tough guy, bad reputation. Where's the evidence
    of that? Only out of his mouth. And when you consider the
    credibility of witnesses in this case, you have to consider
    bias, motive to lie. Who has the biggest interest in the
    outcome of this case? This guy. He's the one on trial.
    He's the one who wants to make you think poorly of [the
    victim]. Because that helps him. Because then that starts
    to make you think maybe the guy wasn't such a good guy.
                                                                    16


    Maybe this isn't such a big deal.      There's no evidence of
    that." (Emphases added.)

The defendant contends that the argument constituted an improper

missing witness argument.   There is some force to the claim.

The argument implies, among other things we will discuss

shortly, a failure to call witnesses on the question of the

identity of the first aggressor.     As such, it was improper

because the prosecutor did not first obtain judicial approval to

make a missing witness argument, see Commonwealth v. Pena, 455

Mass. 1, 16-17 (2009), and Mass. G. Evid. § 1111(a) (2015), and

because testimony from third-party witnesses regarding the

victim’s reputation would not be admissible.    See Commonwealth

v. Adjutant, 443 Mass. 649, 664-665 (2005) (testimony by third-

party witnesses as to victim’s reputation for violent behavior

to establish that victim was first aggressor is inadmissible).

    We discern another flaw in this argument.      A prosecutor may

argue that a testifying defendant has an interest in the outcome

of a case and his credibility may be scrutinized on that basis,

see Commonwealth v. Ortega, 441 Mass. 170, 181-182 & n.19

(2004), but the argument must be understated and approached

cautiously.   Here, it was not.    The clear premise of the

prosecutor's argument is that the defendant's testimony, because

he was the defendant and on trial, did not even qualify as

evidence because it was inherently incredible.    The argument was
                                                                     17


patently improper.    Cf. Commonwealth v. Scesny, 472 Mass. 185,

201-202 (2015) (prosecutor improperly described evidence

introduced by defendant as not material or relevant and

therefore not to be considered as evidence).

    Toward the end of his argument the prosecutor focused on

the Cunneen factors that must be considered on the question of

extreme atrocity or cruelty.   They are: indifference to the

victim's suffering, the consciousness and degree of suffering of

the victim, the number of stab wounds and physical punches

thrown, the manner and force with which the stab wounds were

inflicted, and the disproportion between the means needed to

cause death and those employed.    See Commonwealth v. Cunneen,

389 Mass. 216, 227 (1983).   This part of the prosecutor's

closing was very powerful, and proper.    The prosecutor should

have stopped there.   He ended his closing argument with a highly

improper, emotionally charged discussion covering three pages of

transcript.

    The prosecutor built upon the Cunneen factors.     He

commented that the civilian witnesses, who were "at the wrong

time at the wrong place," tried to save the victim, only to

"[see] the color run right out of him, right down to gray.     And

they saw him struggling and bleeding in front of his own

father."   The emotional impact on witnesses of the victim's

death was not a proper matter for consideration by the jury.       In
                                                                   18


contrast to the defendant's indifference, the prosecutor

developed a mantra of how "[the victim's] life mattered" to his

family, to the civilians who tried to save him, to the

paramedics who summoned heroic effort to try to save this "total

stranger," to the police who investigated the case, and "to all

of us."   He ended with a statement that the victim "has as much

right . . . [to live as] this defendant . . . has an absolute

right to a fair trial. . . .   [The victim] had a

[c]onstitutional right to live, to pursue whatever means of

happiness he chose to pursue.[3] . . .   [H]e was a human being

just like any of us, and . . . there was an inherent value to

his life just like any of our lives."    He asked the jury, on

behalf of the Commonwealth, to return "a fair and just verdict,"

adding that the victim "asks for no more, but he deserves

nothing less," because the defendant "chose . . . to end the

life of [the victim]" out of "anger."

     It is improper for a prosecutor to characterize a criminal

trial as a dispute between a deceased victim on the one hand,

and the defendant on the other, and to exhort the jury to

dispense justice evenly between them.    The deceased is not a

party to the case.   A criminal trial places the interests of the

Commonwealth and the defendant against one another.    An argument

     3
       The prosecutor had argued earlier that the victim "had
every right to have an acquaintance with Lisa Weaver, as well as
she did" with the victim.
                                                                    19


that asks the jury to give justice to the victim is an improper

appeal to sympathy for the victim.     See Commonwealth v.

Drumgold, 423 Mass. 230, 253 (1996).    The prosecutor's improper

call to justice for the victim was aggravated by his inclusion

of the paramedics and the civilian witnesses to the victim's

last moments in his appeal to sympathy.    Similarly, the

prosecutor's argument that the victim's life mattered, and that

the victim had a constitutional right to live, were improper

appeals to sympathy.    See Commonwealth v. Torres, 437 Mass. 460,

464-465 (2002).

    These improprieties were not just fleeting comments or

minor aspects of his closing argument, nor were they the type of

afterthought that we have said does not require reversal.     See,

e.g., Commonwealth v. Judge, 420 Mass. 433, 451-452 (1995)

(single improper sentence appealing to sympathy does not require

new trial).   The improper comments at the end of the closing

comprised a structural segment, indeed, the denouement of the

prosecutor's closing.    This section of his argument was

integrated into his argument of the Cunneen factors,

particularly the defendant's indifference to the victim's

suffering.    The juxtaposition of the defendant's indifference

with the effect of the killing on the paramedics, the civilian

witnesses, the police, and "all of us," for whom the victim's

life "mattered," was demonstrably improper.     It suggested that
                                                                  20


everyone's collective concern for the victim's life was a

legally relevant consideration of and, by way of contrast, an

illumination of the defendant's indifference to the victim's

suffering.   Although jurors may be credited as having a "certain

measure of . . . sophistication in sorting out excessive

claims," Kozec, 399 Mass. at 517, the suggestion here was that

they properly and logically could consider the evidence of

heroic and humanitarian efforts to save the victim, and the

rhetoric of how his life "mattered" to everyone except the

defendant, on the question of the defendant's indifference to

the victim's suffering.   The judge's general instructions on

evidence, sympathy, and arguments of counsel did not dispel that

notion.   See Santiago, 425 Mass. at 501.   He did not

specifically address the prosecutor's improprieties, which were

hard driving and sustained, and which went to a critical aspect

of the case.   The prosecutor's argument far overshadowed the

defendant's assertion at trial that he was concerned for the

victim and did not realize that he was stabbing him.

    The portion of the argument that presumed that the

defendant was not credible because he was on trial challenged

the heart of the defense, namely, the defendant's credibility as

to who was the initial aggressor, who produced the knife, and

whether the defendant had acted in self-defense.    Again, the
                                                                     21


judge's general instructions did not adequately address the

error.

    Although there was no objection, which is some indication

of the level of prejudice, that is not dispositive.

Commonwealth v. Toro, 395 Mass. 354, 360 (1985).     The

Commonwealth's case was strong, but it was not overwhelming.      We

have serious concerns about the effect of the improprieties in

the prosecutor's closing argument on the jury's deliberations.

We need not decide if they created a substantial likelihood of a

miscarriage of justice because we have identified another error

in the course of our plenary review that, in combination with

the errors in the prosecutor's closing argument, require a new

trial.    That error is discussed in the final section of this

opinion.

    5.     Jury instructions.   The defendant asserts error in the

jury instructions.    We address them because they may arise on

remand.    First, he argues that the judge failed to instruct the

jury that in order to return a verdict of guilty of murder, the

jury must find that the Commonwealth proved beyond a reasonable

doubt the absence of mitigating circumstances, specifically, the

absence of excessive force in self-defense.     Second, the

defendant contends that the instruction on manslaughter was

flawed because it used permissive language that failed to

require the jury to find manslaughter if the defendant used
                                                                  22


excessive force in self-defense, and because it inconsistently

stated that the jury should consider manslaughter only if the

defendant lawfully was acting in self-defense.    There were no

objections to the judge's instructions.

    The Model Jury Instructions on Homicide (1999) in effect at

the time of the trial of this case, at page 27, contain the

instruction that "[i]n order to obtain a conviction of murder,

the Commonwealth must prove beyond a reasonable doubt the

absence of . . . mitigating circumstances," including "excessive

use of force in self-defense."   The judge did not include this

instruction, and he should have included it.     However, the judge

twice instructed the jury that to obtain a conviction of murder

the Commonwealth must prove beyond a reasonable doubt that the

defendant did not act in self-defense, and if it failed to do

so, then they must find the defendant not guilty.    The judge

also instructed that if the Commonwealth proved beyond a

reasonable doubt that the defendant used excessive force in

defending himself (the judge defined excessive force in self-

defense), then the jury should return a verdict of guilty of

voluntary manslaughter.   This was a correct statement of law.

See Commonwealth v. Glacken, 451 Mass. 163, 167 (2008);

Commonwealth v. Williams, 450 Mass. 879, 885 n.4 (2008);

Commonwealth v. McLaughlin, 433 Mass. 558, 563 (2001);

Commonwealth v. Little, 431 Mass. 782, 787 (2000); Commonwealth
                                                                      23


v. Boucher, 403 Mass. 659, 663 (1989).       It also conformed with

the Model Jury Instructions on Homicide (1999), at page 30.

There was no error, but we urge judges to adhere to the model

instructions on homicide.       On remand, the 2013 version of the

Model Jury Instructions on Homicide should be followed.

       The defendant's final argument fails.     The judge erred by

his use of the permissive words "may" and "should"4 when

discussing use of excessive force in self-defense, rather than

the clearly directive "must."       See Commonwealth v. Santos, 454

Mass. 770, 776-777 (2009).      See also Commonwealth v. McLaughlin,

433 Mass. 558, 563 (2001) (where mandatory language is required,

permissive language should not be used).       In Santos, a new trial

was required because the judge used permissive language and

"failed to make clear to the jury . . . that murder was

unavailable," and not an option, where the killing occurred as a

result of the use of excessive force in self-defense.       Id. at

776.       Here, the judge instructed the jury that "[i]f the

defendant used excessive force in defending himself in light of

all the circumstances, the defendant may be found guilty of no

more than manslaughter."      Unlike the judge at the underlying

trial in Santos, the judge here made it abundantly clear that

murder was not an option if the Commonwealth proved that the


       4
       See Commonwealth v. Caramanica, 49 Mass. App. Ct. 376, 378
(2000) ("should" is permissive).
                                                                     24


defendant used excessive force in lawfully defending himself.

Although the judge did not use the precise language used in the

Model Homicide Instructions (2013), at page 71, he anticipated

the basic instruction that has been approved for current use.

    There is no merit to the defendant's claim that the judge

incorrectly instructed the jury that voluntary manslaughter is

the use of excessive force when lawfully defending oneself.

This was a correct formulation.    As we said in Santos, "the use

of excessive force deprives the defendant of his right to be

acquitted altogether, entitling him instead to a verdict of

manslaughter."    Santos, 454 Mass. at 775.    There was no error.

    6.     Review under G. L. c. 278, § 33E.    There was evidence

that the victim was the first aggressor, that the victim

introduced a knife during the fray, that the defendant was

fearful of the victim, and that the defendant swung the knife

wildly.    This evidence, particularly the evidence of the

defendant's mental state, warranted an instruction on reasonable

provocation.     The defendant was entitled to such an instruction,

and it would have been compatible with excessive force in self-

defense.    Indeed, it probably would have been more favorable to

the defendant.    Such an instruction, had it been given, would

have allowed the jury to find the defendant guilty of voluntary

manslaughter if they had a reasonable doubt as to whether the

victim initiated the fight by throwing the first punch.      Counsel
                                                                    25


should have requested such an instruction, and such an

instruction should have been given.    See Commonwealth v.

Acevedo, 446 Mass. 435, 446-450 (2006).     The cumulative effect

of the absence of this instruction and the errors in the

prosecutor's closing argument create a substantial likelihood of

a miscarriage of justice.    The judgment is vacated.

    The Commonwealth shall have the option of either retrying

the defendant on the murder indictment or accepting a reduction

of the verdict to manslaughter, which was the verdict urged by

the defendant at his first trial, and which is the verdict he

could best hope to obtain after a request for an instruction on

reasonable provocation.     See Commonwealth v. Howard, 469 Mass.

721, 750 (2014).   The Commonwealth shall inform this court

within fourteen days of the date this opinion issues whether it

will retry the defendant for murder in the first degree or move

to have the defendant sentenced for manslaughter.    After the

Commonwealth so informs us, we will issue an appropriate

rescript to the Superior Court.

                                     So ordered.
