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SJC-10992

                 COMMONWEALTH     vs.   DAVID COPELAND.



          Suffolk.       November 9, 2018. - January 18, 2019.

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


Homicide. Robbery. Felony-Murder Rule. Practice, Criminal,
     Instructions to jury, Argument by prosecutor, Assistance of
     counsel, Capital case. Constitutional Law, Assistance of
     counsel.



     Indictments found and returned in the Superior Court
Department on September 29, 2008.

    The cases were tried before Frank M. Gaziano, J.


     Stephen Paul Maidman for the defendant.
     Julianne Campbell, Assistant District Attorney, for the
Commonwealth.


    LOWY, J.     On July 29, 2008, John Marshall (victim) was

stabbed to death in a parking lot in the Roxbury section of

Boston.    A grand jury returned indictments charging the

defendant, David Copeland, with murder in the first degree and

armed robbery.       At trial, the defendant conceded that he stabbed
                                                                   2


the victim, but argued that he suffered from posttraumatic

stress disorder (PTSD) at the time of the killing, that the

killing was a spontaneous event, and that he did not rob the

victim.   A Superior Court jury convicted the defendant of

felony-murder in the first degree and armed robbery.   On appeal

from his convictions, the defendant challenges (1) the

Commonwealth's opening statement; (2) the sufficiency of the

evidence on the offenses of felony-murder and deliberately

premeditated murder; (3) the judge's refusal to instruct the

jury on felony-murder in the second degree; (4) the

Commonwealth's closing argument; and (5) defense counsel's

ineffective performance.   He also requests that we exercise our

power under G. L. c. 278, § 33E, to order a new trial or reduce

the verdict to voluntary manslaughter.   Because we find neither

reversible error nor a reason to exercise our authority under

§ 33E, we affirm the judgments.

    Background.    We recite the evidence presented during the

Commonwealth's case-in-chief, in the light most favorable to the

Commonwealth.   Commonwealth v. Veiovis, 477 Mass. 472, 474

(2017).   See Commonwealth v. Latimore, 378 Mass. 671, 676-677

(1979).   On July 28 and 29, 2008, the defendant and two women

were smoking "crack" cocaine at an apartment on Regent Street.

They ran out of cocaine multiple times, and on each occasion

someone left the apartment and got more.   But eventually, on the
                                                                    3


second day, both the cocaine and the money ran out.   The

defendant then asked one of the women if he could use her

cellular telephone, saying that he was going to meet somebody.

The defendant left the apartment wearing a white T-shirt.

    That same day, a witness telephoned the police after she

saw two men fighting in the parking lot next to her apartment

building on Dale Street.   She saw a man in a white shirt

apparently punching the victim, who was wearing a black shirt.

The victim was "[j]ust standing there" leaning against his

vehicle.   The man in the white shirt eventually walked out of

the parking lot toward Regent Street, leaving the victim lying

on the ground.   The witness then saw blood on the ground of the

parking lot.

    At that time, a police officer who was in the area saw the

defendant walking away from Dale Street on Regent Street.    The

defendant was sweating, bleeding, and shirtless; he was holding

a white T-shirt in his hands.   The officer asked the defendant

if he needed help, and the defendant "shrugged [the officer] off

and kept walking."   After receiving a radio call about a

stabbing in a Dale Street parking lot, the officer put out a

description of the defendant and said the defendant might be in

a nearby building.   Officers began to canvass the area.

    The defendant returned to the Regent Street apartment

sweaty and with blood on him.   He first told one of the women at
                                                                      4


the apartment that he had fallen, but then said that "he got

someone" and that he "took care of business."    The women told

the defendant that police were gathering outside.     After hearing

this, the defendant handed one of the women cocaine, marijuana,

and money, all of which had blood on them.     He also told the

other woman that she did not need to open the door.     He went

into the kitchen, saying that he was trying to get to the back

door, but he was still inside when a police officer entered the

apartment.

    After the defendant's arrest, police found blood containing

the victim's deoxyribonucleic acid (DNA) on the defendant's ear.

The defendant initially told a detective that he had not left

the Regent Street apartment building on the day of the killing.

But when the detective told the defendant that he had evidence

to the contrary, the defendant acknowledged that he had left

once to buy alcohol.

    Meanwhile, police and paramedics found the victim lying on

his back between two parked vehicles in the Dale Street parking

lot, covered in blood.    He was wearing a dark shirt, either navy

blue or black.   The victim was a crack cocaine dealer, and he

also used marijuana.     According to his girlfriend, who had

previously seen drugs in the victim's vehicle, he had been

selling drugs on July 29.
                                                                     5


      The victim died at the hospital from an eight inch stab

wound to the heart.    He had other wounds on his body, including

wounds on his hands consistent with attempts to block a knife.

There were components of marijuana in his blood.

      Inside the victim's vehicle, which was at the crime scene,

police found crack cocaine and a hat with the defendant's DNA on

it.   When police searched the Regent Street apartment, they

found a knife wrapped in a white T-shirt.    The medical examiner

testified that the knife could have caused the injury that

killed the victim.    Blood on the knife matched the victim's DNA.

Police officers also examined video footage captured on July 29

by surveillance cameras next to the Dale Street parking lot.

The defendant appeared on that footage at around the time of the

killing.

      The defendant moved at the close of the Commonwealth's case

for a required finding of not guilty on the armed robbery

charge.    The judge denied the motion.   The defendant then

presented multiple witnesses, including a psychiatrist who had

interviewed the defendant, to testify about an alleged sexual

assault against the defendant that occurred in February 2008.

The psychiatrist testified that the assault resulted in PTSD

that affected the defendant's mental state on the day of the

killing.
                                                                   6


    The defendant also testified.    He asserted that he planned

to give the victim marijuana in exchange for crack cocaine on

July 29, and he claimed to have exchanged drugs with the victim

before.   He also stated that he took with him a knife from the

kitchen of the apartment when he went to meet the victim.      After

seeing the amount of cocaine that the victim wanted to exchange

for the marijuana, the defendant tried to back out of the deal.

He testified that a fight ensued inside the vehicle, resulting

in the defendant stabbing the victim.     He stated that the

cocaine that the victim had offered him was not the same cocaine

that the police found in the victim's vehicle.

    On cross examination, the defendant admitted that his

entire postarrest statement to police was a lie.    He also

insisted that he had not handed over any cocaine on his return

to the apartment, but had no answer for where the cocaine that

the victim had offered him went.

    After the defense rested, the defendant moved for a

required finding of not guilty on the offenses of murder in the

first degree, murder in the second degree, and armed robbery.

After brief oral argument, during which the defendant emphasized

the lack of evidence with respect to felony-murder, the judge

denied the motion "as to the armed robbery, felony murder and

other theories of first degree murder."    The jury were

instructed on murder in the first degree based on the theory of
                                                                   7


premeditation; murder in the first degree based on the theory of

felony-murder, with armed robbery as the predicate felony;

murder in the second degree based on malice; manslaughter; and

armed robbery.   The judge declined to instruct the jury on

murder in the second degree based on larceny from a person.

After the jury returned their verdict, the defendant filed

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

Mass. 1502 (1995), regarding the felony-murder offense and the

armed robbery offense.    The judge denied both motions.1

     Discussion.   1.    Sufficiency of the evidence for felony-

murder.   The defendant contends that the evidence did not

support a conviction of felony-murder because there was

insufficient evidence of armed robbery, the predicate felony.2

According to the defendant, the judge erred by failing to enter

sua sponte a required finding of not guilty on the felony-murder


     1 In denying the motion regarding felony-murder, the judge
stated that he found "no basis in the facts to set aside or
reduce the verdict." In denying the motion regarding armed
robbery, the judge concluded that "[t]he evidence supported the
conviction."

     2 The defendant also argues that the alleged armed robbery
merges with the killing because the Commonwealth failed to show
two separate assaults. However, in Commonwealth v. Christian,
430 Mass. 552, 556 (2000), overruled on other grounds by
Commonwealth v. Paulding, 438 Mass. 1 (2002), we observed that
we could "envision no situation in which an armed robbery would
not support a conviction of felony-murder." We have recently
reaffirmed this conclusion, see Commonwealth v. Fredette, 480
Mass. 75, 83 (2018), and we discern no reason to disturb it.
                                                                   8


charge at the close of the Commonwealth's case, and erred again

by denying the defendant's motion for a required finding at the

close of all the evidence.3

     "In reviewing the denial of a motion for a required

finding, we must determine whether the evidence offered by the

Commonwealth, together with reasonable inferences therefrom,

when viewed in its light most favorable to the Commonwealth, was

sufficient to persuade a rational jury beyond a reasonable doubt

of the existence of every element of the crime charged"

(quotation and citation omitted).   Commonwealth v. Whitaker, 460

Mass. 409, 416 (2011).   "[A] conviction may rest upon

circumstantial evidence alone, and the inferences a jury may

draw from the relevant evidence need only be reasonable and

possible," not "necessary or inescapable" (citation omitted).

Commonwealth v. Martin, 467 Mass. 291, 312 (2014).   "[W]e do not


     3 The defendant also contends that the evidence did not
support a conviction of deliberately premeditated murder. This
argument fails because the defendant was not convicted of that
crime. See, e.g., Commonwealth v. Forde, 392 Mass. 453, 456
(1984) (even if evidence of deliberate premeditation was
insufficient, error would be harmless beyond reasonable doubt
because defendant convicted of murder in second degree).
Moreover, although we do not decide whether the evidence was
sufficient to sustain a conviction of deliberate premeditation,
the facts here are similar to cases where we have upheld such a
conviction. See Commonwealth v. Salazar, 481 Mass. 105, 112
(2018) (sufficient evidence of deliberate premeditation where
"defendant retrieved the weapon . . . before the killing,"
"fatal wound was a deep wound to the victim's neck," and "victim
had at least six other stab or incised wounds, including
defensive wounds").
                                                                   9


weigh supporting evidence against conflicting evidence when

considering whether the jury could have found each element of

the crime charged."    Id.

     When reviewing a motion for a required finding that was

filed at the close of the Commonwealth's case and was renewed at

the close of all the evidence, "[w]e consider the state of the

evidence at the close of the Commonwealth's case to determine

whether the defendant's motion should have been granted at that

time.    We also consider the state of the evidence at the close

of all the evidence, to determine whether the Commonwealth's

position as to proof deteriorated after it closed its case"

(alteration omitted).    Commonwealth v. Semedo, 456 Mass. 1, 8

(2010), quoting Commonwealth v. Sheline, 391 Mass. 279, 283

(1984).4

     To prove that the defendant committed armed robbery, the

Commonwealth had to show that the defendant (1) "[took] money or

other property from the victim," (2) "with the intent to steal

it," (3) "while armed with a dangerous weapon," and (4) "by


     4 It is clear that the defendant moved for a required
finding of not guilty on the offense of felony-murder at the
close of all the evidence. It is less clear that the defendant
preserved his rights on the felony-murder offense at the close
of the Commonwealth's case. At that point, the defendant moved
for a required finding on armed robbery, the predicate felony,
but not on felony-murder. However, for purposes of our analysis
we assume, without deciding, that the defendant preserved his
rights on the offense of felony-murder when he moved for a
required finding on armed robbery.
                                                                     10


applying actual force to the victim or putting the victim in

fear through the use of threatening words or gestures."

Commonwealth v. Benitez, 464 Mass. 686, 694 n.12 (2013).

According to the defendant, at the close of the Commonwealth's

case there was no evidence that the defendant took money or

property from the victim, that any of the victim's money or

property was missing, that the defendant applied actual force

against or threatened the victim, or that the defendant intended

to steal from the victim.   Additionally, the defendant argues

that the Commonwealth failed to prove "that the taking did not

occur as a mere afterthought to the killing."    We disagree.    See

Commonwealth v. Webster, 480 Mass. 161, 167-168 (2018).

    From the evidence presented during the Commonwealth's case-

in-chief, a rational jury could infer that the defendant

intended to and did steal from the victim on July 29, and that

he did so using a knife to stab the victim.     The defendant,

apparently armed with a knife, left the Regent Street apartment

to meet somebody after he and his companions had run out of

money and cocaine.   He later returned to the apartment with

money and cocaine that had blood on them.     Upon his return, the

defendant said that he "got someone" and that he "took care of

business."   See Commonwealth v. Morgan, 460 Mass. 277, 290

(2011) ("evidence tend[ing] to show that the defendant needed

money and went to various extremes to get it" relevant to
                                                                  11


defendant's motive to rob).   Cf. Commonwealth v. Cannon, 449

Mass. 462, 469 (2007) (sufficient evidence of plan to rob where

"jury could reasonably infer that the defendant . . . knew that

the victim kept both money and illegal drugs in his apartment").5

     In addition, there was compelling circumstantial evidence

that the victim possessed drugs on July 29.    He had been selling

drugs that day, he kept drugs in his vehicle, crack cocaine was

found in his vehicle after he died, and he had been using

marijuana at some point before being killed.   There also was

abundant evidence connecting the defendant with the crime scene.

A hat the defendant had worn was found in the victim's vehicle;

the defendant was wearing a white T-shirt when he left the

apartment, a witness saw a man with a white shirt leaving the

Dale Street parking lot after a fight with the victim, and the

same witness saw blood on the ground near the victim; the

defendant was observed by a police officer near the crime scene,

sweaty and bloody and holding a white T-shirt, around the time

that the crime was reported; and surveillance footage showed the


     5 Our conclusion disposes of the defendant's assertion that
the Commonwealth improperly mentioned in its opening statement
and closing argument that the defendant had a plan to rob the
victim. See Commonwealth v. DePina, 476 Mass. 614, 627 (2017)
("A prosecutor's opening statement may reference anything that
he or she reasonably believes in good faith will be proved by
evidence introduced during the course of the trial . . ."). See
also Commonwealth v. Veiovis, 477 Mass. 472, 489 (2017) (closing
argument proper where assertion "was fair argument based on
inferences from the evidence in the case").
                                                                   12


defendant near the Dale Street parking lot on the day of the

killing.   The victim's blood was found on the defendant's body

after his arrest, and a knife with the victim's blood on it that

could have been used to inflict the victim's fatal wound was

found wrapped in a white T-shirt in the apartment to which the

defendant returned on July 29.   See Commonwealth v. McGrath, 358

Mass. 314, 318 (1970) (finding sufficient evidence of armed

robbery of drug store where, inter alia, defendant was near drug

store around time of murders and, one hour after crime, "was in

possession of the revolver which was proved to have been the one

that killed" victim).

    The defendant's consciousness of guilt further supports our

conclusion.   See Martin, 467 Mass. at 315, quoting Commonwealth

v. Booker, 386 Mass. 466, 470 (1982) ("evidence of consciousness

of guilt 'may be sufficient to amass a quantum of proof

necessary to prove guilt' when 'coupled with other probable

inferences'").   Upon returning to the apartment, the defendant

initially explained his physical condition to one of the women

by saying that he had fallen, but then said that he "got

someone"; after learning that police were outside the apartment,

the defendant got rid of bloody drugs and money, told one of the

women that she need not open the apartment door, and said that

he was trying to get to the apartment's back door; and after

being arrested, the defendant admitted to the police that he had
                                                                  13


left the apartment only after a detective told him there was

evidence to that effect.   See Commonwealth v. Cook, 364 Mass.

767, 772 (1974) (defendant's "contradictory statements and

attempted flight" suggested "consciousness of guilt").

     Although the evidence the defendant introduced after the

Commonwealth rested contradicted part of the Commonwealth's

case, the Commonwealth's case did not deteriorate.    A finding of

not guilty or guilty of a lesser offense required the jury to

reject the testimony of the Commonwealth's witnesses in favor of

the defendant's version of events. "[Q]uestions of credibility

belong properly to the finder of fact . . . and, in considering

whether the evidence is sufficient to support a conviction,

should be resolved in favor of the Commonwealth" (citation

omitted).   Martin, 467 Mass. at 315.   The evidence before the

jury at the close of all the evidence, when viewed in the light

most favorable to the Commonwealth, remained sufficient to

support a conviction of felony-murder based on armed robbery.6


     6 The cases the defendant cites in support of his argument
do not affect our conclusion. In Commonwealth v. Mandile, 403
Mass. 93, 98 (1988), we decided that there was insufficient
evidence of armed robbery where the only evidence was "motive,
means, unexplained possession of funds, and consciousness of
guilt" (footnote omitted). The only motive suggested in Mandile
was a desire for money, but there was no evidence that the
murder victim "kept large sums of money in his home." Id. at
94-95, 97. In addition, there was no evidence linking the money
found on the defendant in Mandile with the murder victim. Id.
at 95, 97. Here, in contrast, the defendant had run out of
                                                                  14


    2.    Jury instructions.   The defendant contends that the

judge erred in declining to instruct the jury on felony-murder

in the second degree based on the offense of larceny from a

person.   "[A]n instruction on felony-murder in the second degree

is necessary when there is a rational basis in the evidence to

warrant the instruction" (quotations and citation omitted).

Commonwealth v. Holley, 478 Mass. 508, 528 (2017).    There was no

such rational basis here.

    "To return a verdict of larceny, not robbery, a jury must

conclude that any property was taken without the threat or use

of force."   Commonwealth v. Christian, 430 Mass. 552, 558

(2000), overruled on another ground by Commonwealth v. Paulding,

438 Mass. 1 (2002).   Here, all the evidence "indicates a

confrontation and force . . . .   The facts cannot support a

finding that the killing occurred in the course of larceny from



drugs and the murder victim was a drug dealer. Moreover, the
drugs and money the defendant handed over after returning to the
apartment had blood on them, forging a link between the property
and the murder victim. The situation here is more similar to
the cases distinguished in Mandile. In those cases, according
to the Mandile court, we upheld convictions in the face of "no
direct evidence of a loss of money" because "there was
circumstantial evidence from which a jury could infer a robbery
or attempted robbery." Id. at 97. The defendant also cites
Commonwealth v. Moran, 387 Mass. 644, 646 (1982), in which we
concluded "that where the intent to steal is no more than an
afterthought to a previous assault, there is no robbery." Here,
however, the Commonwealth presented sufficient evidence to allow
a rational jury to find that the defendant planned to rob the
victim and thus that the robbery was not an afterthought. See
id. (facts supported finding that robbery was not afterthought).
                                                                  15


the person, because force or the threat of force permeated the

encounter . . . ."   Commonwealth v. Glowacki, 398 Mass. 507, 514

(1986), overruled on another ground by Christian, supra.

Therefore, the judge did not err in declining to instruct on

felony-murder in the second degree.   See Commonwealth v. Ford,

35 Mass. App. Ct. 752, 756 (1994) (affirming judge's refusal to

instruct on larceny from person where "neither the prosecutor's

theory of what occurred nor the defendant's theory raised any

possibility of a finding of the lesser crime").

    3.   Commonwealth's closing argument.   The defendant

contends that the Commonwealth made several improper comments

during its closing argument.   Because the defendant did not

object to the closing argument at trial, we review to determine

whether any errors created a substantial likelihood of a

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

    Only one of the defendant's contentions requires

significant discussion.   According to the defendant, the

Commonwealth improperly referred to the defendant's medical

expert as "a paid expert with a job to do . . . , and that job

was to come up with the excuse and then come in and sell that

excuse to you."   "[I]t is improper for a prosecutor to suggest

that an expert witness's testimony was 'bought' by a defendant

or to characterize the witness as a 'hired gun' where . . .

there was no evidence that he was paid more than his customary
                                                                    16


fee" (citation omitted).     Commonwealth v. Bishop, 461 Mass. 586,

598 (2012).     Here, the expert testified that defense counsel did

not place a "specific limit" on how much money he could spend.

However, he also revealed that he was conscious of avoiding

unnecessary expenses, testifying that he was "[m]indful of not

trying to cost the Commonwealth . . . too much money in doing

work that is not really going to produce much by way of my

opinion."     Given this evidence, it was improper for the

Commonwealth to suggest that the defendant's expert was paid to

reach a particular conclusion.

    Nevertheless, it is unlikely that this error influenced the

jury's decision.    It was an isolated error, made in the context

of a larger, proper discussion of evidence showing weaknesses in

the expert's assessment of the defendant, and the judge

instructed the jury that closing arguments are not evidence.

See Commonwealth v. Kozec, 399 Mass. 514, 517 (1987)

("instructions may mitigate any prejudice in the final

argument").    Therefore, the error did not create a substantial

likelihood of a miscarriage of justice.     See Commonwealth v.

Goitia, 480 Mass. 763, 768 (2018), quoting Commonwealth v.

Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014)

(substantial likelihood of miscarriage of justice requires error

that is "likely to have influenced the jury's conclusion").
                                                                    17


    Second, the defendant takes issue with the Commonwealth's

suggestion that the defendant was not sexually assaulted in

February 2008.   In his closing, the prosecutor acknowledged that

he was "not here to try and prove to you that this man was not

assaulted."   He questioned whether the incident occurred,

however, stating that "one thing is for sure about whatever

happened in February of 2008, there's a lot of questions about

it," and that "[m]aybe something happened, maybe it didn't."        "A

prosecutor may not misstate evidence or refer to facts not in

evidence in a closing argument."    Commonwealth v. Goddard, 476

Mass. 443, 449 (2017).   But a prosecutor "may properly attack

the credibility of witnesses."     Commonwealth v. Donovan, 422

Mass. 349, 357 (1996).   That is what the prosecutor did here.

There was no error.

    Third, the Commonwealth allegedly erred by suggesting that

the defendant's psychiatrist expert incorrectly examined the

defendant and had an obligation to investigate other sources of

information about the defendant.    In his closing, the prosecutor

observed multiple times that the psychiatrist had not verified

the defendant's statements to the psychiatrist.    The

Commonwealth emphasized this lack of corroboration on cross-

examination; the assertions during closing argument were

therefore grounded in the evidence.     Moreover, it is proper to

demonstrate that an opposing expert's opinion is based
                                                                  18


exclusively on the defendant's version of events.   See

Commonwealth v. Johnston, 467 Mass. 674, 698 (2014) (no error

where prosecutor's cross-examination of expert "went to the

thoroughness of [expert's] examination of the defendant");

Commonwealth v. Noxon, 319 Mass. 495, 538 (1946) ("it is open to

the other party to show on cross-examination of the expert that

there are facts in the case not accounted for in the opinion of

the expert").   We find no error.

    Fourth, the defendant argues that the Commonwealth

improperly explained premeditation as capable of occurring with

a snap of the fingers.   This explanation was not erroneous where

it was a correct statement of the law.   "No particular length of

time of reflection is required to find deliberate premeditation,

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

Commonwealth v. Rakes, 478 Mass. 22, 34 (2017).

    Fifth, the defendant contends that the Commonwealth

improperly suggested to the jury that crack dealers do not

exchange crack for marijuana.   The prosecutor stated in his

closing argument that the defendant

    "went out to go buy crack from [the victim]. And he is
    somehow, and apply your common sense to this . . . , he has
    somehow found the crack dealer that exchanges marijuana for
    crack . . . . [H]e . . . wants you to believe that [the
    victim] is okay . . . being on sort of an even exchange
    business. I'll get some marijuana from you in exchange for
    crack[.] Do you really think that that's the way crack
    dealers work in the city of Boston? That they don't come
    out looking for money?"
                                                                     19



There was no evidence at trial to suggest that crack dealers in

general do not barter.    However, the jury learned that the

defendant told the psychiatrist expert during an interview that

the defendant "would usually buy from [the victim] using cash,

but on this occasion he sought to exchange marijuana for

cocaine."    This evidence suggests that it would have been

unusual for the defendant to pay for cocaine with marijuana.

Therefore, the Commonwealth's assertions were properly grounded

in the evidence.     See Veiovis, 477 Mass. at 489.

    Finally, the Commonwealth allegedly erred in arguing that

the defendant ran from accountability after killing the victim.

The prosecutor argued that the defendant "fled the scene.       He

ran, and he . . . did not run from fear.     He did not run from

danger.     He ran from accountability, and he has continued to run

from accountability for what he did that day from that day to

this."    There was abundant evidence at trial that the defendant

tried to avoid arrest and prosecution.     "Here, where the

prosecutor's references to the defendant's accountability for

his actions were . . . connected to specific acts of the

defendant that were in evidence, the comments were not

improper."    Commonwealth v. Tavares, 471 Mass. 430, 444 (2015).

    4.    Ineffective assistance of counsel.    The defendant

contends that his trial counsel was constitutionally
                                                                   20


ineffective.   Because this is a capital case, we review for a

substantial likelihood of a miscarriage of justice by asking

whether there was error and, if so, whether the error "was

likely to have influenced the jury's conclusion."   Commonwealth

v. Alicea, 464 Mass. 837, 845 (2013), quoting Wright, 411 Mass.

at 682.

    According to the defendant, trial counsel improperly failed

to (1) move for a required finding of not guilty on deliberately

premeditated murder and felony-murder at the close of the

Commonwealth's case, and (2) object to the Commonwealth's

closing argument.   The defendant's claims cannot succeed here,

where we have already concluded that even if there was

insufficient evidence to convict on deliberately premeditated

murder, the error does not require reversal (see note 3, supra);

that there was sufficient evidence to convict the defendant of

felony-murder at the close of the Commonwealth's case; and that

any error in the Commonwealth's closing argument did not create

a substantial likelihood of a miscarriage of justice.    See

Commonwealth v. Maynard, 436 Mass. 558, 572-573 (2002) ("Because

it has already been determined that the prosecutor's

misstatement does not warrant reversal under G. L. c. 278,

§ 33E, [defendant] cannot now succeed on his ineffective

assistance of counsel claim based on counsel's failure to object

to that same error"); Commonwealth v. Costa, 407 Mass. 216, 224
                                                                   21


n.9 (1990) ("Because we determine that there was sufficient

evidence to support a conviction of murder in the first degree

. . . , we hold that trial counsel's failure to move for a

required finding of not guilty did not amount to ineffective

assistance of counsel").

    5.   Review under G. L. c. 278, § 33E.   After reviewing the

entire record pursuant to our obligation under G. L. c. 278,

§ 33E, we decline to enter a verdict of a lesser degree of guilt

or to order a new trial.

                                   Judgments affirmed.
