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SJC-12061

               COMMONWEALTH   vs.   BRYAN M. GRASSIE.



      Plymouth.       September 6, 2016. - January 6, 2017.

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


Homicide. Assault and Battery by Means of a Dangerous Weapon.
     Evidence, Self-defense. Self-Defense. Practice, Criminal,
     Argument by prosecutor, Verdict, Grand jury proceedings.
     Grand Jury.



     Indictments found and returned in the Superior Court
Department on September 21, 2012.

     The cases were tried before Frank M. Gaziano, J., and a
renewed motion for a required finding of not guilty was
considered by him.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Kenneth H. Anderson (Greg L. Johnson with him) for the
defendant.
     Robert C. Thompson, Assistant District Attorney, for the
Commonwealth.
     Argie K. Shapiro, Assistant Attorney General, for the
Attorney General, amicus curiae, submitted a brief.
                                                                    2


    BOTSFORD, J.    The defendant appeals from his convictions of

murder in the second degree and a related charge.    He argues

that, based on the evidence presented at trial and the

prosecutor's closing argument, his murder conviction should be

reversed or reduced to a conviction of manslaughter.     We

conclude that there was sufficient evidence to convict the

defendant of murder in the second degree and that the

prosecutor's closing argument was not improper.     However, for

the reasons discussed below, we do not decide whether the

defendant is entitled to a reduced verdict.

    The defendant argues as well that this court should expand

its holding in Commonwealth v. Walczak, 463 Mass. 808 (2012), to

require that in all cases where the Commonwealth seeks to indict

a person for murder, whether the person is a juvenile (as in

Walczak) or an adult (as here), and there is substantial

evidence of mitigating circumstances or defenses presented to

the grand jury, the grand jury must be instructed on the

elements of murder and the significance of mitigating

circumstances and defenses.   We conclude that this defendant is

not entitled to relief based on the absence of any such

instructions.   However, we also believe it is important for the

court to gain a better understanding of current grand jury

instruction practices before deciding whether the holding of the

Walczak case should be expanded in the future.    Accordingly, we
                                                                         3


will appoint a committee to study and make recommendations about

this question.1

     Background.    1.   Facts.   The jury could have found the

following.   The fatal altercation occurred in the East Wareham

section of Wareham outside a high school graduation party hosted

by Dylan Burns.    The gathering began on the afternoon of July

28, 2012, and extended into the early morning hours of July 29.

The two victims, Brendan Mahoney and Brian Mahoney,2 arrived at

the party around 2 or 3 P.M. on July 28 and, like many of the

partygoers, were drinking alcohol despite being underage.      All

told, a "half keg" and two thirty-packs of beer were consumed

throughout the day and night.     The defendant, Bryan Grassie,

arrived at the party after midnight on July 29, appearing

intoxicated and acting "confrontational" and "aggressive."         The

defendant had not been invited to the party, but he knew Burns,

the host.

     Over the next few hours, the defendant repeatedly

confronted others at the party, including the Mahoney brothers,

and either discussed fighting or offered to fight them.      For

example, the defendant at one point told the brothers, "[I]f


     1
          We acknowledge the amicus brief submitted by the
Attorney General.
     2
       For convenience, we will use only first names when
referring to the Mahoney brothers individually.
                                                                     4


there's a problem right now, we can go outside and take care of

it."    During a confrontation, the brothers forced the defendant

up against a wall and told him "no one there wanted to fight"

and "to leave before he got hurt."     Brendan then removed a

cigarette from behind the defendant's ear and threw it in the

defendant's face.     Brian spoke with Burns and asked him to get

the defendant "the fuck out of here before I [Brian], like, hit

him or something."     Eventually, Burns did intervene.   However,

the defendant and the Mahoney brothers continued to exchange

words about the possibility of fighting at a nearby beach.      As

Burns was leading the defendant away from the brothers, Brian

reached over Burns's shoulder and pushed the defendant's face

away.

       Burns was able to coax the defendant outside, although the

defendant remained confrontational.     He told Burns, "My problem

is with . . . the Mahoney [b]rothers," and said, "[H]ave them

come outside and . . . we'll solve it.     We'll take care of it

with them."    Once outside, the defendant at first would not

leave the front of the house, and yelled at the Mahoneys to come

outside and fight him.     When Brian came out, the defendant said,

"[L]et's go down to the beach.    We'll fight there," and Brian

said, "[A]lright, I'll see you in like [ten] minutes," before

going back inside.     The defendant continued to yell about

fighting.     After some time outside, however, the defendant began
                                                                   5


to walk away from the party.    He headed down Priscilla Avenue,

in the direction of his home and also the beach; as he walked,

he continued shouting insults back toward the party.

    The events at the heart of this case occurred shortly

thereafter.   The trial witnesses essentially agreed that after

the defendant began walking away from the party, the Mahoney

brothers pursued him down Priscilla Avenue, followed by several

others from the party.   One witness testified that the defendant

was "walking backwards" -- that is, facing the party -- as he

left.   This witness described the defendant as "turned around"

and "waiting" in a "fighting stance" or "in a ready position

waiting to fight," with his feet "shoulder width apart" and his

hands out of his pockets as the brothers approached.    The

defendant and the brothers then engaged in physical combat in

the shadows beyond a streetlight.   A surveillance audio-video

system mounted on the outside of a nearby home on Priscilla

Avenue captured audio from the fight, as well as some video

images from before and after.

    The following is apparent from the audio-video recording.

Footsteps walking can be heard, and a very shadowy figure

(identified by several witnesses as the defendant) can vaguely
                                                                        6


be made out, moving down the road away from the party.3         Over the

first twenty seconds of the recording, the defendant can be

heard saying, "Follow me, let's go . . . .       Follow me, you

little pussies.      I'll wait there, dude.   I'll wait there for

you.       You guys are fucking bitches, you guys won't come.     You

fucking pussies.       I'll fight you guys like one-on-one.     Not even

one-on-one.      Two-on-one, three-on-one, you fucking little

pussies."      Over the next three seconds, the defendant says

nothing further as he continues to walk down Priscilla Avenue

and his shadowy figure moves out of the camera's view.          As it

does so, the sound of running footsteps becomes audible.

Although the video recording does not reveal any visual image of

a person or persons, the witnesses at trial essentially agreed

that the Mahoney brothers were the first partygoers to run down

Priscilla Avenue after the defendant, followed by Burns, James

Waitz, and Matthew Ingargiola.       Within three seconds of the

sound of running footsteps, a series of thuds or crashes is

heard, along with additional running footsteps.       Approximately

ten seconds elapse between the first crash and the sound of

someone's voice saying, "He's got a knife," followed immediately

       3
       As mentioned, one witness testified that the defendant was
walking backward as he left the party. Another witness
testified that -- at least once the Mahoney brothers began their
pursuit -- the defendant started to run away from them. It is
impossible to tell from the recording alone which direction the
defendant was facing at any given time.
                                                                    7


by a scream.   Six seconds later, someone says, "Call the

ambulance."    About five seconds after that, a video image shows

Brendan limping quickly away from the fight, back toward the

site of the party, accompanied by Brian and two others running

beside him, identified at trial as Burns and Waitz.

    Each Mahoney brother had been stabbed several times.

Brendan suffered five stab wounds and one incised wound.    One of

the stab wounds was to the abdomen, identified by the medical

examiner as the only wound that could have caused his death.

The remaining wounds were to Brendan's legs or buttocks.

Following surgical intervention, Brendan died on July 31, 2012.

Brian suffered two stab wounds to his abdomen and side, and

others to the buttocks; the injuries required surgical repair.

    Although the weapon used in the stabbings was not

recovered, there was testimony that the defendant had exhibited

a folding knife, in a nonthreatening manner, to one person at

Burns's party and to a different person at an earlier party held

the same night.   The Commonwealth introduced in evidence two

knives that were described by those two individuals as looking

similar to the knife the defendant had shown to them.    Each of

the model knives has a blade approximately three and one-half

inches long and a handle approximately four and one-half inches

long.   The model knives can be opened with one hand by pressing

certain areas of the handle.
                                                                    8


    2.   Procedural history.   A Plymouth County grand jury

indicted the defendant for murder in the first degree (Brendan),

armed assault with intent to murder (Brian), and assault and

battery by means of a dangerous weapon (Brian).     The defendant

moved to dismiss the indictments because the Commonwealth had

failed to instruct the grand jury on the elements of murder in

the first degree, murder in the second degree, and voluntary

manslaughter, and on mitigating circumstances and defenses.      The

motion was denied.   The defendant sought review before a single

justice in this court pursuant to G. L. c. 211, § 3.     The single

justice denied relief.

    The defendant thereafter was tried before a jury.      At the

close of the Commonwealth's case and at the close of all the

evidence, the defendant moved for a required finding of not

guilty insofar as the indictments alleged murder (in both

degrees) and armed assault with intent to murder.    The trial

judge denied the motions.   With respect to the murder

indictment, the judge instructed the jury on murder in the first

degree (on the theories of deliberate premeditation and extreme

atrocity or cruelty); murder in the second degree; voluntary

manslaughter; self-defense; and the mitigating circumstances of

(1) heat of passion on reasonable provocation, (2) heat of

passion induced by sudden combat, and (3) the use of excessive

force in self-defense.   The jury found the defendant guilty of
                                                                    9


murder in the second degree and assault and battery by means of

a dangerous weapon; the defendant was found not guilty of armed

assault with intent to murder and the lesser included offense of

armed assault with intent to kill.

    Following the verdicts, the defendant renewed his motion

under Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502

(1995), for a required finding of not guilty on the charge of

murder.   In the alternative, he moved under the same rule for a

reduction in the verdict of murder in the second degree to

manslaughter, or for a new trial.    The trial judge denied all

three aspects of the motion.    The defendant appealed from his

convictions to the Appeals Court, and we transferred the case to

this court on our own motion.

    Discussion.    1.   Motion for a required finding of not

guilty.   The defendant first argues that the judge erred in

denying his motion for a required finding of not guilty insofar

as the indictments alleged murder.    Essentially, he argues that

the Commonwealth failed to meet its burden of proving beyond a

reasonable doubt the absence of mitigating circumstances -- to

wit, the absence of heat of passion induced by reasonable
                                                                  10


provocation or sudden combat,4 and the absence of excessive force

in self-defense.   We disagree.

     When reviewing a motion for a required finding of not

guilty, the "question is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt" (emphasis in original).   Commonwealth

v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v.

Virginia, 443 U.S. 307, 318-319 (1979).    The evidence and the

inferences drawn therefrom must be of sufficient force to bring

minds of ordinary intelligence and sagacity to the persuasion of

guilt beyond a reasonable doubt.    Latimore, supra at 676, citing

Commonwealth v. Cooper, 264 Mass. 368, 373 (1928).   More than

slight evidence must support each essential element, and "a

conviction may not 'rest upon the piling of inference upon

inference or conjecture and speculation.'"    Commonwealth v.

Reaves, 434 Mass. 383, 390 (2001), quoting Commonwealth v.

Mandile, 403 Mass. 93, 94 (1988).

     Where, as in this case, there is evidence supporting the

proposition that in stabbing Brian, the defendant acted out of

heat of passion, whether induced by reasonable provocation or

     4
       There is substantial overlap, at least in this case,
between the theories of heat of passion induced by reasonable
provocation and heat of passion induced by sudden combat. We
address both theories infra.
                                                                   11


sudden combat, the jury are instructed to consider whether a

reasonable person, either as a result of reasonable provocation

or induced by sudden combat, would be "provoked to act out of

emotion rather than reasoned reflection."    Model Jury

Instructions on Homicide 67-68 (2013).5    If the jury make such a

finding or, more specifically, find that the Commonwealth has

failed to prove beyond a reasonable doubt that the defendant was

not so provoked, they cannot return a verdict of murder, whether

of first or second degree.    See id.   Because the jury in this

case returned a verdict of murder in the second degree, our task

is to determine whether there was sufficient evidence to allow

them to find the Commonwealth did prove beyond a reasonable

doubt the absence of heat of passion resulting from either

reasonable provocation or sudden combat.    See, e.g.,

Commonwealth v. Acevedo, 427 Mass. 714, 715–716 (1998), citing

Commonwealth v. Boucher, 403 Mass. 659, 661-662 (1989) (because

malice and adequate provocation are "mutually exclusive,"

Commonwealth must prove beyond reasonable doubt absence of

provocation in order to sustain murder conviction).

     With respect to heat of passion induced by reasonable

provocation, the crucial inquiry is whether an action by the

victim or victims in relation to the defendant would have roused


     5
         The jury were so instructed in the present case.
                                                                  12


in an ordinary person such a state of passion, anger, fear,

fright, or nervous excitement as would eclipse the defendant's

capacity for reflection or restraint, and whether it actually

did produce such a state of mind in the defendant.     Commonwealth

v. Burgess, 450 Mass. 422, 439 (2008), citing Commonwealth v.

Walden, 380 Mass. 724, 728 (1980).     The jury must find a causal

connection between the provocation, the heat of passion, and the

killing.     Burgess, supra at 438, citing Commonwealth v.

Garabedian, 399 Mass. 304, 313 (1987).     The jury here could have

credited the following evidence:     the defendant was walking

backward down Priscilla Avenue, beckoning people to fight him

"three-on-one," with the knowledge that he had a knife in his

pocket and no indication that anyone else was carrying a weapon.

Seconds later, the brothers came after him and Brendan landed

one punch.    Virtually immediately thereafter, the brothers were

stabbed.     If the jury believed these facts, as they were

entitled to do, they could rationally infer that the defendant's

decision to use deadly force reflected a previously formed

intention to do so, not an impulsive action resulting from a

state of passion induced by provocation supplied by Brendan's

opening punch.    If the jury found that the defendant's intent to

stab preexisted Brendan's landing that first punch, there would

be no causal connection between the punch and the defendant's
                                                                  13


state of mind -- and thus no mitigation due to reasonable

provocation.   See Burgess, supra.

       We reach the same conclusion with respect to sudden combat.

The mitigating circumstance of sudden combat contemplates a

scenario in which "two meet, not intending to quarrel, and angry

words suddenly arise, and a conflict springs up in which blows

are given on both sides, without much regard to who is the

assailant."    Commonwealth v. Rodriquez, 461 Mass. 100, 107

(2011), quoting Commonwealth v. Webster, 5 Cush. 295, 308

(1850).   "[I]f no unfair advantage is taken in the outset, and

the occasion is not sought for the purpose of gratifying malice,

and one seizes a weapon and strikes a deadly blow, it is

regarded as homicide in heat of blood."    Rodriquez, supra.   The

jury could reasonably infer that the defendant uttered the

words, "I'll fight you guys like one-on-one.   Not even one-on-

one.   Two-on-one, three-on-one," because he had already formed

the intent to stab anyone who accepted his invitation to fight.

In other words, this evidence at least permits (although

certainly does not require) an inference that the defendant

solicited a fight with the Mahoney brothers as a pretext for his

use of deadly force.    See Commonwealth v. Fitzgerald, 380 Mass.

840, 849-850 (1980) (sufficient evidence to warrant jury's

finding of malice and returning verdict of murder in second

degree where defendant, after professing intention to injure
                                                                   14


victims, intentionally used deadly weapon on them).    Such a

finding would defeat any entitlement to mitigation based on heat

of passion induced by sudden combat.

     The issue of excessive force used in self-defense is much

closer.    Because the actual physical confrontation that ended

with Brendan's death raised an issue whether the defendant used

a knife -– deadly force6 -- in proper self-defense, the

Commonwealth was required to prove beyond a reasonable doubt

that the defendant did not engage in the proper use of self-

defense.   See Commonwealth v. Glacken, 451 Mass. 163, 166–167

(2008).    As relevant here, our cases and the model jury

instructions, to which the trial judge scrupulously adhered and

which neither party challenges on appeal, set out alternative

ways for the Commonwealth to carry this burden.    See Model Jury

Instructions on Homicide, supra at 20-21.     In a deadly force

self-defense case, the Commonwealth may establish the absence of

proper use of self-defense by proving beyond a reasonable doubt

at least one of the following propositions:    (1) the defendant

did not actually believe that he was in immediate danger of

     6
       The defendant correctly does not dispute that his use of a
knife constituted deadly force. See, e.g., Commonwealth v.
Pring-Wilson, 448 Mass. 718, 733 (2007), citing Commonwealth v.
Toon, 55 Mass. App. Ct. 642, 644 n.3 (2002) (stabbing victim
with knife constitutes use of deadly force); Commonwealth v.
Albert, 391 Mass. 853, 860-861 (1984) (jury were entitled to
infer malice from intentional use of deadly force [knife] to
stab victim).
                                                                  15


death or serious bodily harm from which he could save himself

only by using deadly force; (2) a reasonable person in the

defendant's position would not reasonably have believed that he

was in immediate danger of death or serious bodily harm from

which he could save himself only by using deadly force; (3) the

defendant did not use or attempt to use all proper and

reasonable means in the circumstances to avoid physical combat

before resorting to the use of deadly force; or (4) the

defendant used more force than was reasonably necessary in all

the circumstances.7   See id.   See also Glacken, supra at 167.   If

the Commonwealth fails to prove the first, second, or third

proposition, but does prove the fourth proposition -- that is,

if the only way the Commonwealth proves that the defendant did

not act in proper self-defense is by proving that the defendant

used excessive force -- then the jury must return a verdict of

not guilty of murder but, if the other required elements of

murder are proved, must find the defendant guilty of voluntary


     7
       The Model Jury Instructions on Homicide 21 (2013) also
provide a fifth option that may be applicable where there is
evidence that the defendant was the initial aggressor. The
defendant agreed with the trial judge's decision that including
this fifth option was not warranted in this case, because as a
general matter, words alone cannot make one into a first
aggressor, and did not do so with respect to this defendant. We
agree as well. See Commonwealth v. Harris, 464 Mass. 425, 435-
436 & n.12 (2013) (generally "conduct involving only the use of
nonthreatening words will not be sufficient to qualify a
defendant as a first aggressor").
                                                                   16


manslaughter.    See Model Jury Instructions on Homicide, supra at

71.   See Glacken, supra, and cases cited.   See also Commonwealth

v. Santos, 454 Mass. 770, 775 (2009).

      The trial evidence here would permit a rational jury to

conclude that the Commonwealth had proved beyond a reasonable

doubt that the defendant did not act in the proper exercise of

self-defense.    In particular, the jury could have credited the

surveillance video recording depicting the defendant offering to

fight people from the party "two-on-one" or "three-on-one";

that, as one witness testified, the defendant was "walking

backwards" and shouting back toward the party as he departed

down Priscilla Avenue; and that, as the same witness stated, the

defendant was "turned around" and "waiting" in a "fighting

stance" with his hands out of his pockets as the brothers

approached.8    This evidence would permit the jury to conclude

that the defendant had invited the fight and was waiting for it

rather than trying to use all reasonable options to avoid it.

That the jury reasonably could so conclude means that the

Commonwealth could prove beyond a reasonable doubt the third


      8
       The witness who testified to these observations, James
Waitz, also testified that he saw nothing in the defendant's
hands at this exact moment, but the jury were not required to
accept that testimony. There was no question that it was very
dark where the fight took place, and there was evidence that the
knife in the defendant's possession had a black blade with a
black handle.
                                                                    17


proposition listed in the previous paragraph, namely, that "the

defendant had not availed himself of all proper means to avoid

physical combat before resorting to the use of deadly force."

Glacken, 451 Mass. at 167.    See Santos, 454 Mass. at 773;

Commonwealth v. Bertrand, 385 Mass. 356, 362 (1982) (defendant

"did not attempt to avoid a fight" with victim, but rather

"anticipated a fight that evening" and remained on scene until

after participating in fight).

    In addition, the jury rationally could have concluded that

the defendant sought out a fight in which he was outnumbered

precisely because he knew that he could use, and intended to

use, the knife in his pocket against anyone who accepted his

invitation to fight.    Such a mental state is inconsistent with

the defendant harboring a subjective fear of serious bodily

injury from which he could only save himself by using deadly

force.   See Santos, supra ("A person using a dangerous weapon

[or deadly force] in self-defense must also have actually

believed that he was in imminent danger of serious harm or

death").   Again, because the jury permissibly could make such

findings, it follows that the Commonwealth could carry its

burden of proving beyond a reasonable doubt that the defendant

did not have an actual belief that he could not protect himself

absent the use of deadly force -- i.e., the second proposition

listed previously.     Cf. Commonwealth v. Torres, 420 Mass. 479,
                                                                  18


492–493 (1995) (defendant not entitled to self-defense

instruction absent evidence of reasonable and actual belief that

he or another was in imminent danger of death of serious bodily

harm).

    If the jury rationally could conclude that the Commonwealth

had proved the defendant was not entitled to use deadly force in

self-defense, there would be no basis for a finding that the

defendant had used excessive force in self-defense.   See Santos,

454 Mass. at 775 ("The jury cannot reach the question of

excessive force in self-defense unless they decide that the

defendant has exercised his right of self-defense in the first

place"); Commonwealth v. Walker, 443 Mass. 213, 218 (2005) ("a

voluntary manslaughter verdict based on excessive force in self-

defense would have been precluded if the Commonwealth proved

that the defendant was not entitled to use deadly force").     See

also Commonwealth v. Roberts, 433 Mass. 45, 57 (2000) (excessive

force instruction unavailable absent evidence that defendant

reasonably believed he was in imminent danger of death or

serious bodily injury and used all reasonable means of avoiding

combat); Commonwealth v. Berry, 431 Mass. 326, 335 (2000)

(defendant did not take advantage of every opportunity to avoid

combat when "at least at some point he had adequate means of

escape").
                                                                   19


    Of course, this was no by means the only conclusion

available to the jury.   As the defendant correctly points out,

there was other evidence that could have led the jury to embrace

any of his theories of mitigation.    The defendant was just

eighteen years old and appeared intoxicated before the fight

began around 3:30 in the morning.    Brendan's punch knocked the

defendant to the ground or into a fence, and the defendant at

that point was facing what very well may have looked like a

group of at least five attackers (Brendan, Brian, Burns, Waitz,

and Ingargiola).   The jury had ample evidence from which to

conclude that the defendant used deadly force in response to

reasonable provocation or that he had a right to defend himself

but used excessive force in doing so.    However, that state of

affairs merely entitled the defendant to jury instructions on

mitigation and self-defense -- which he received in the words of

the model jury instructions.   Compare Boucher, 403 Mass. at 661-

662 (error when instructions failed to inform jury that malice

and adequate provocation are "mutually exclusive"); Commonwealth

v. Kendrick, 351 Mass. 203, 212–213 (1966) (error where

instructions foreclosed jury from finding manslaughter based on

excessive force used in self-defense).

    Once the jury were properly instructed on mitigating

circumstances and self-defense -- and no one argues they were

not -- it was for them to decide whether the defendant properly
                                                                  20


used deadly force in the heat of passion or in self-defense --

or, alternatively, if he used deadly force because of a

preexisting intent to stab anyone who accepted his invitation to

fight.   See Daniels v. Commonwealth, 455 Mass. 1009, 1009–1010

(2009) (defendant's "claim that the Commonwealth failed to

disprove that she acted in self-defense beyond a reasonable

doubt fails because, while the evidence at her trial, viewed

most favorably to her, entitled her to a self-defense

instruction, the jury were not required to credit her version of

the altercation"); Hartfield v. Commonwealth, 443 Mass. 1022,

1022 (2005) ("The flaw in [the defendant's] argument is that the

jury were not required to credit the evidence supporting her

contention that she acted on provocation or in self-defense.

The evidence is examined in the light most favorable to the

defendant in determining whether instructions on provocation or

self-defense are warranted, . . . but that is not to say that

the jury must believe that evidence -- or that a judge or an

appellate court, in assessing the sufficiency of the

Commonwealth's evidence to support a conviction of murder, must

assume that the jury would believe that evidence" [citation

omitted]).   Because there was legally sufficient evidence to

support the jury's verdict of murder in the second degree, the

defendant's motions for a required finding of not guilty insofar

as the indictments alleged murder were properly denied.
                                                                   21


     2.   Prosecutor's closing argument.    The defendant also

argues that we should vacate his convictions because the

prosecutor improperly shifted the burden of proof by discussing

the defendant's "claim" of self-defense during her closing

argument.   We disagree.   In context, the prosecutor's comments

"do not appear to represent an effort to place a burden on the

defendant."   Commonwealth v. Williams, 450 Mass. 879, 889

(2008).   To the contrary, they were merely "an attempt to meet

the Commonwealth's burden of disproving self-defense."     Id.   The

argument was not improper.

     3.   Motion to reduce the verdict from murder in the second

degree to manslaughter.    The defendant contests the judge's

denial of his motion under the second sentence of Mass. R. Crim.

P. 25 (b) (2) to reduce the jury's verdict to manslaughter.9     He

argues that the weight of the evidence so strongly supports the

presence of mitigating circumstances -- that is, excessive force

in self-defense and heat of passion -- that the judge's denial

of his motion was an abuse of discretion.    For the reasons

discussed below, we do not decide this issue at the present

time.

     9
       The second sentence of Mass. R. Crim. P. 25 (b) (2)
provides: "If a verdict of guilty is returned, the judge may on
motion set aside the verdict and order a new trial, or order the
entry of a finding of not guilty, or order the entry of a
finding of guilty of any offense included in the offense charged
in the indictment or complaint."
                                                                    22


     Under rule 25 (b) (2), a trial judge has broad authority to

reduce a jury's verdict, despite the presence of legally

sufficient evidence to support it.     Commonwealth v. Sokphann

Chhim, 447 Mass. 370, 381 (2006).     "A judge's discretion to

reduce a verdict pursuant to rule 25 (b) (2) is appropriately

exercised where the weight of the evidence in the case, although

technically sufficient to support the jury's verdict, points to

a lesser crime."   Commonwealth v. Rolon, 438 Mass. 808, 821

(2003).   In exercising his or her rule 25 (b) (2) powers, the

trial judge should be guided by the same considerations that

have guided this court in the exercise of its power and duties

under G. L. c. 278, § 33E, to reduce a verdict.     Commonwealth v.

Gaulden, 383 Mass. 543, 555 (1981).

     The role of this court in reviewing a trial judge's ruling

on a motion to reduce the verdict is "not to decide whether we

would have acted as the trial judge did."     Sokphann Chhim, 447

Mass. at 381.   Instead, we decide only whether the judge abused

his or her discretion or committed an error of law.10    Id.,


     10
       We are cognizant of the fact that a narrower scope of
review applies to our analysis of second-degree murder
convictions compared with our review of first-degree murder
convictions under G. L. c. 278, § 33E, given that § 33E no
longer provides plenary review by this court in cases where a
defendant is convicted of murder in the second degree. See
Commonwealth v. Maillet, 400 Mass. 572, 579 n.9 (1987)
(comparing St. 1962, c. 453, which required review by this court
under § 33E where defendant indicted for murder in first degree
                                                                     23


citing Gaulden, 383 Mass. at 557.     Abuse of discretion arises

where "the judge made 'a clear error of judgment in weighing'

the factors relevant to the decision . . . such that the

decision falls outside the range of reasonable alternatives"

(citation omitted).   L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014).

    That said, there must be some mechanism by which an

appellate court can meaningfully assess whether a judge acted

appropriately in granting or denying rule 25 (b) (2) relief.

For instance, if a judge grants a motion to reduce a verdict,

the expectation is that the judge will explain his or her

reasoning in a written ruling or an oral explanation on the

record.   See Commonwealth v. Woodward, 427 Mass. 659, 669 (1998)

("We do expect a judge to state the reasons for a reduction in

verdict" under rule 25 [b] [2]); Gaulden, 383 Mass. at 555–556

(noting that judge who reduces verdict under rule 25 [b] [2]

should state reasons for doing so).     This allows the appellate

court to test the judge's reasoning for abuse of discretion.        We


is convicted of murder in either first or second degree, with
St. 1979, c. 346, § 2, which does not require review where
defendant, so indicted, is convicted of murder in second
degree). See also Commonwealth v. Gaulden, 383 Mass. 543, 553-
554 (1981) (similar). One possible explanation for this
disparity in treatment of the two degrees of murder is that
those convicted of murder in the first degree are sentenced to
life without the possibility of parole, whereas those convicted
of murder in the second degree eventually become eligible for
parole. See G. L. c. 265, § 2; G. L. c. 279, § 24.
                                                                   24


have never required such a statement of reasons when, as here,

the judge denies a motion to reduce and leaves the jury’s

verdict intact.    Even so, the task of the appellate court is the

same:     to determine whether "the judge made 'a clear error of

judgment in weighing' the factors relevant to the decision . . .

such that the decision falls outside the range of reasonable

alternatives" (citation omitted).    L.L., 470 Mass. at 185 n.27.

     In this case, the trial judge did not state his reasons for

denying the defendant's motion to reduce the verdict.11    Without

a statement of reasons, we are unable to determine whether the

decision not to reduce the verdict was an abuse of discretion.12




     11
       The judge's ruling consisted of two handwritten lines:
"The motion is denied. The court declines to disturb the jury's
verdict."
     12
       As just stated, we have never required a detailed
explanation as a sine qua non of denying a motion to reduce a
verdict, nor do we intend to do so now. That said, even a brief
explanation of the judge's rationale for denying a motion under
rule 25 (b) (2) assists the understanding of the parties, the
public, and the appellate courts of the judge's decision, and
especially in close or difficult cases, we urge judges to
provide a statement articulating with some specificity their
reasons for denying a rule 25 (b) (2) motion. See L.L. v.
Commonwealth, 470 Mass. 169, 182–183 (2014), quoting Long v.
Wickett, 50 Mass. App. Ct. 380, 402 (2000) (even where judge has
"broad discretion," it is "essential . . . that a reviewing
court have some basis for distinguishing between well-reasoned
conclusions arrived at after a comprehensive consideration of
all relevant factors, and mere boiler-plate approval phrased in
appropriate language but unsupported by evaluation of the facts
or analysis of the law").
                                                                   25


The usual remedy for this predicament -- where the record is

inadequate for an appellate court to test a judge's rule

25 (b) (2) ruling for abuse of discretion -- would be to remand

to the trial judge, who had a firsthand view of the evidence,

for findings or an explanation of reasons.13   See Woodward, 427

Mass. at 669; Gaulden, 383 Mass. at 555–556.   However, such a

remedy would be ineffectual in the circumstances of this case

because Justice Gaziano, who was the trial judge, has since

become a member of this court.   See Gaulden, supra at 547


     13
       In other contexts, although not perfectly analogous to
this case, we have remanded when it appeared necessary or at
least desirable for additional explication from the trial or
motion judge. See Commonwealth v. Sylvain, 466 Mass. 422, 439
(2013), S.C., 473 Mass. 832 (2016) (remanding for findings
related to defendant's ineffective assistance of counsel claim);
Commonwealth v. Greineder, 458 Mass. 207, 219-220 (2010), S.C.,
464 Mass. 580 (2013) (discussing result after remanding for
factual findings on defendant's claim of closed court room
during jury empanelment); Commonwealth v. Isaiah I., 448 Mass.
334, 338 (2007), S.C., 450 Mass. 818 (2008) (remanding for
further factual findings in context of motion to suppress);
Commonwealth v. Hernandez, 421 Mass. 272, 278–280 (1995)
(vacating dismissal of criminal complaint and remanding for
determination on issue of prejudice from prosecutor's conduct);
Commonwealth v. Caso, 377 Mass. 236, 237, 241-242, 244 (1979)
(remanding for further findings on issue of voluntariness of
witness's statements). See also Boston Hous. Auth. v.
Bridgewaters, 452 Mass. 833, 849–851 (2009) (remanding for
individualized assessment regarding reasonable accommodation for
public housing tenant); Weber v. Community Teamwork, Inc., 434
Mass. 761, 775–776 (2001) (remanding employment discrimination
case for finding on elements of animus and causation); Rosenberg
v. Merida, 428 Mass. 182, 185 (1998) (remanding because judge
made no findings concerning amount of child support obligation,
which left appellate court unable to determine whether he
followed correct approach).
                                                                  26


("Because the judge has retired, we cannot readily remand the

case for him to make findings at this time").

     Nonetheless, this court does have the power to transfer

cases, or parts of cases, from a lower court to this court.      See

G. L. c. 211, § 4A, third par.14   Thus, given the unusual posture

of this case, pursuant to § 4A, we will exercise jurisdiction

over the motion to reduce the verdict -- a component of the case

that, ordinarily, we would simply remand to the trial judge.15

Having jurisdiction over that part of the case, we will transfer

it to the county court to permit Justice Gaziano, acting as

single justice, to review anew the defendant's motion to reduce

the verdict.    In conducting that review, the single justice may

reconsider his prior ruling and reach a different result or he

may not, but his resolution should be accompanied by a statement

explaining the reasons for his decision.    Once the single

justice has done so, he should report the case to the full

court.

     14
          The third paragraph of G. L. c. 211, § 4A, provides:

     "The supreme judicial court may also direct any cause or
     matter to be transferred from a lower court to it in whole
     or in part for further action or directions, and in case of
     partial transfer may issue such orders or directions in
     regards to the part of such cause or matter not so
     transferred as justice may require."
     15
       This exercise of jurisdiction requires us to remand the
case to the Superior Court and then transfer it back to this
court pursuant to our powers under G. L. c. 211, § 4A.
                                                                   27


     We add the following, in light of the close correspondence

between the review conducted by a trial judge on a motion to

reduce the verdict and this court's consideration whether to

reduce a verdict pursuant to § 33E.16   See Gaulden, 383 Mass. at

555–556.   In performing our duty under § 33E, we have

occasionally reduced verdicts, or approved of reduced verdicts,

based largely on "the particulars of the fight that led to the

victim's death."    Commonwealth v. Vargas, 475 Mass. 338, 365

(2016).    In several cases, those "particulars" bear striking

factual similarities to this case.    See, e.g., Commonwealth v.

Keough, 385 Mass. 314, 320-321 (1982).17   See also Commonwealth


     16
       Reviewing convictions of murder in the second degree is
familiar territory for this court, albeit more in the past than
the present. Before 1979, the court's review under § 33E
extended to cases, like this one, that involved a conviction of
murder in the second degree based on an indictment charging
murder in the first degree. G. L. c. 278, § 33E, as amended
through St. 1974, c. 457. See Gaulden, 383 Mass. at 553. In
1979, § 33E was amended to limit this court's review function
under that statute to convictions of murder in the first degree;
under the rules of criminal procedure, trial judges in all
criminal cases have "a power to enter a finding of a lesser
degree of guilt in the same manner that this court has had such
a power under . . . § 33E, on the appeal of a capital case."
Id.
     17
       In Commonwealth v. Keough, 385 Mass. 314 (1982), this
court affirmed the trial judge's decision to reduce a verdict of
murder in the second degree to manslaughter on facts that bear a
substantial similarity to the facts here. We stated:

          "We agree with the judge's statement that '[t]his is a
     tragic case in which a minor controversy between strangers
     exploded into the killing of a human being.' A number of
                                                                  28


v. Jones, 366 Mass. 805, 806, 809 (1975) (reducing verdict from

murder in second degree to manslaughter where victim "struck the

defendant a heavy blow on the jaw which sent him reeling

backward several steps" before defendant stabbed victim in chest

with fishing knife defendant carried with him every day);

Commonwealth v. Kinney, 361 Mass. 709, 710-713 (1972) (reducing

two convictions of murder in second degree to manslaughter where

defendant was set upon by group of women, struck in head, and

dragged into stairwell before firing two shots, killing one

woman and one child); Commonwealth v. Ransom, 358 Mass. 580,

582-583 (1971) (reducing conviction of murder in second degree

to manslaughter where defendant stabbed victim after victim

first attacked defendant and then pursued defendant into alley


    significant facts are undisputed. The judgment of the
    persons involved appears to have been affected by the
    consumption of alcohol. The defendant and the victim had
    had no previous confrontation. The defendant had the
    murder weapon in his possession. He did not leave to
    obtain it and return to confront the victim. At the
    crucial moment, the victim sought out the defendant for
    confrontation. There were four persons in the victim's
    group and only two in the defendant's. The entire incident
    was characterized by senseless conduct by both groups.
    There was no evidence of the defendant's prior criminality.

         "Although each case depends on a consideration of its
    particular circumstances, the judge's conclusion here fits
    into the pattern of those cases involving senseless
    encounters in which, under G. L. c. 278, § 33E, we have
    ordered the entry of a finding of a lesser degree of
    guilt."

Id. at 320–321, and cases cited.
                                                                  29


and up to fence where defendant could run no further).    It also

bears noting that some § 33E cases have given weight to factors

such as age and intoxication, both of which were also at issue

in this case.   See Commonwealth v. McDermott, 393 Mass. 451,

460-461 (1984) (defendant was seventeen years old, and had drug

and alcohol problems); Ransom, supra at 583 (alcohol and drugs

may have played role in killing).   See also Commonwealth v.

Colleran, 452 Mass. 417, 431–432 (2008) (collecting cases that

discuss factors that have been relevant to reducing murder

verdicts under § 33E).    Because these considerations have

informed this court's § 33E analysis, they should also provide a

framework for the judge to explain his reasons in resolving the

rule 25 (b) (2) question.

    4.   Grand jury instructions.   Finally, the defendant asks

that we expand the court's holding in Commonwealth v. Walczak,

463 Mass. 808 (2012), to apply whether the accused is a juvenile

or an adult.    Under such a rule, the defendant suggests, the

grand jury in this case should have received legal instructions

on mitigating circumstances and self-defense.    He argues that

because no such instructions were given, the integrity of the

grand jury was impaired, and the indictment must be dismissed.

    In the Walczak case, four Justices agreed that "where the

Commonwealth seeks to indict a juvenile for murder and where

there is substantial evidence of mitigating circumstances or
                                                                    30


defenses (other than lack of criminal responsibility) presented

to the grand jury, the prosecutor shall instruct the grand jury

on the elements of murder and on the significance of the

mitigating circumstances and defenses."     Walczak, 463 Mass. at

810 (per curiam).     That holding reflected the common ground

between two concurring opinions.     Justice Lenk, noting that

"juveniles charged with murder are uniquely treated as adults

for all purposes by virtue of the grand jury's decision to

indict," advocated a rule requiring that in any presentment in

which the Commonwealth seeks to indict a juvenile for murder the

grand jury be instructed on elements of the crime, as well as

any defenses or mitigating circumstances raised by the evidence.

See id. at 832–833 (Lenk, J., concurring).     Then Justice Gants,

in an opinion joined by two other Justices, proposed a slightly

different rule.     He suggested that grand juries should receive

legal instructions on murder in the second degree and mitigating

circumstances when the prosecutor seeks an indictment for murder

despite "evidence of mitigating circumstances that is so

substantial that concealing it would impair the integrity of the

grand jury," regardless of whether the person accused is a

juvenile or an adult.     Id. at 837 (Gants, J., concurring).18


    18
       Justice Spina, joined by two Justices, concurred in part
and dissented in part. He believed there should be no change to
then-existing law regarding instructions to grand juries. See
                                                                  31


    The holding of the Walczak case, by its own terms, does not

help the defendant here.    For one, the rule agreed upon in

Walczak does not require additional instructions to be provided

to the grand jury in cases, like this one, involving accused

persons who are adults.    Id. at 810.   Moreover, as the defendant

acknowledges, even if the Walczak case had applied to adults,

that case was decided nearly three months after the indictments

issued in the present case, and we stated in Walczak that other

than the defendant then before the court, the rule would apply

only to "future cases."    Id.   Finally, the Walczak case came to

this court in a very different posture from this one -- an

appeal from the dismissal of an indictment, not an appeal from a

conviction following a full jury trial.     See id. at 809.

    Because this case does not require us to decide it, we

leave to another time the question whether to expand the holding

of the Walczak case to apply to adults.     Meanwhile, we will

convene a committee to assist us in gaining a better

understanding of current practices employed by the various

district attorneys and the Attorney General before considering

an extension of the rule adopted in the Walczak case to similar




Commonwealth v. Walczak, 463 Mass. 808, 844 (2012) (Spina, J.,
concurring in part and dissenting in part).
                                                                 32


types of grand jury proceedings involving adults.19    Cf.

Commonwealth v. Walker, 460 Mass. 590, 604 n.16 (2011)

(announcing that study committee would convene regarding

eyewitness identification procedures and related model jury

instructions).20    Independent of the work of that committee,

however, we decide today that, following the issuance of the

rescript in this case, the entire grand jury proceeding -- with

the exception of the grand jury's own deliberations -- is to be

recorded in a manner that permits reproduction and

transcription.     This shall include any legal instructions

provided to the grand jury by a judge or a prosecutor in

connection with the proceeding, as well as a record of all those

present during the proceeding.21


     19
       By "similar types of grand jury proceedings," we mean
grand jury proceedings in which the Commonwealth seeks an
indictment for murder and in which there is evidence presented
of mitigating circumstances or defenses (other than lack of
criminal responsibility) sufficiently strong that the integrity
of the grand jury would have been impaired if it were withheld,
and the subject of the investigation is an adult. See Walczak,
463 Mass. at 810 (per curiam), 837 (Gants, J., concurring).
     20
       We will ask the committee to report on the range of
practices employed by the various district attorneys' offices as
well as the office of the Attorney General with respect to grand
jury presentments; the reasons supporting the different
practices; the substance of the instructions that grand juries
receive from those district attorneys who currently provide
them; and any recommended best practices.
     21
       The Attorney General indicates that, in general, only the
judge's instructions at empanelment of the grand jury are
                                                               33


    Conclusion.   The case is transferred to the Supreme

Judicial Court for Suffolk County for further proceedings

consistent with this opinion.

                                  So ordered.




recorded, whereas a prosecutor's subsequent instructions are
not. It is this practice we seek to change by requiring that
the entire grand jury proceeding, including all instructions by
either a judge or a prosecutor, be placed on the record. We
disagree with the Attorney General's suggestion that such a
practice may jeopardize the secrecy of the grand jury, because
grand jury minutes are already required to be made available to
the parties. See Mass. R. Crim. P. 14 (a) (1) (A) (ii), as
amended, 444 Mass. 1501 (2005).
    LOWY, J. (concurring).     I agree that the evidence supports

a verdict of murder in the second degree and that the

prosecutor's closing argument was not improper.   I also agree

with the approach of transferring the portion of the case

concerning the denial of the defendant's motion to reduce the

verdict to the county court for review by Justice Gaziano,

acting as single justice.    I write separately because I believe

that convening a study group "to assist us in gaining a better

understanding of current practices employed by the various

district attorneys and the Attorney General before considering

an extension of the rule in the Walczak case to similar types of

grand jury proceedings involving adults" is unnecessary and

imprudent.    I believe it is unnecessary for the reasons stated

in Justice Spina's opinion in Commonwealth v. Walczak, 463 Mass

808, 844-856 (2012) (Spina, J., concurring in part and

dissenting in part).

    I believe extending the Walczak protocol to adult murder

cases is imprudent for a number of reasons.   First and foremost,

while the grand jury is an arm of the court and this court's

superintendence power reaches its proceedings, the manner of

presentation of evidence to the grand jury rests with the

executive branch, absent impairment of the integrity of the

grand jury.   Second, should the court intrude into grand jury

proceedings in murder prosecutions, why should it not do so in
                                                                   2


armed assault with intent to murder cases when there is evidence

of mitigation, or in indecent assault and battery cases when

there is evidence that the touching was accidental or

consensual?   Third, will the Commonwealth now have to anticipate

evidence of mitigation through the eyes of defense counsel or

proactively investigate evidence of mitigation at the earliest

stages of a prosecution?   Finally, adopting such a rule will add

a plethora of new motions and appeals relative to the quality or

absence of the Commonwealth's instructions.    Trial judges are

not infrequently reversed for failing to give a manslaughter

instruction or because of error in instructions inadvertently

shifting the burden of proof of mitigation to the defendant.

Should Walczak be extended to adult murder cases, countless

issues will be raised concerning the need for and quality of

such instructions.   While these issues are of paramount

importance at trial, a grand jury proceeding is not a trial.

For the past 236 years the grand jury has been an investigatory

and accusatory body in this Commonwealth.     Commonwealth v.

Moran, 453 Mass. 880, 884 n.7 (2009).   The convening of a study

group will be but a first step in the erosion of that vital and

historic function.
