NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-09850

                  COMMONWEALTH   vs.   GREGORY A. WALL.



            Norfolk.     May 9, 2014. - September 11, 2014.

   Present:     Ireland, C.J., Spina, Cordy, Gants, Duffly, JJ.1


Homicide. Intoxication. Malice. Evidence, Intoxication,
     Telephone conversation, Relevancy and materiality,
     Inflammatory evidence, State of mind, Impeachment of
     credibility, Medical record. Witness, Impeachment.
     Practice, Criminal, Capital case, State of mind, Assistance
     of counsel, Instructions to jury, Objections to jury
     instructions. Constitutional Law, Public trial.



     Indictment found and returned in the Superior Court
Department on May 30, 2002.

     The case was tried before Judith Fabricant, J.; a motion
for a new trial, filed on November 16, 2009, was heard by her;
and a second motion for a new trial, filed on January 11, 2013,
was considered by her.


     Matthew A. Kamholtz for the defendant.
     Tracey A. Cusick, Assistant District Attorney, for the
Commonwealth.




     1
       Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
                                                                    2


    CORDY, J.    Just before midnight on May 3, 2002, police

responded to 16 Sumner Street in Quincy after a neighbor

telephoned to report that she had just witnessed the defendant,

Gregory A. Wall, moving a trash barrel with a human leg

protruding from it across their shared backyard.    On arrival,

the officers observed a trail of red droplets leading to the

defendant's back door.   Through a window in the door, one of the

officers observed the legs of someone standing next to a plastic

bag containing two human feet.    On entering the apartment, the

officers discovered a horrific scene.    A woman's body had been

dismembered.    The defendant was found moments later in his

bedroom closet, his clothes and hands stained with the victim's

blood.   He would give several explanations to police, generally

claiming that, after the victim came to his apartment, he passed

out due to his consumption of alcohol and prescription

medication (Ativan) and woke up to find the victim dead.       He was

taken to the Quincy Medical Center for observation, where

doctors determined that his blood alcohol content (BAC) was 0.21

per cent.

    The defendant was charged with murder in the first degree,

and the Commonwealth proceeded on theories of premeditation,
                                                                   3


extreme atrocity or cruelty, and felony-murder.2   Defense

counsel, relying on evidence of the defendant's intoxication and

statements the defendant made to police, alleged that a third

party -- most likely the victim's boy friend -- entered the

house and killed the victim while the defendant was unconscious

due to severe intoxication, and that the defendant merely

panicked and attempted to clean up the scene after waking up to

the sight of the aftermath of the murder.   After a six-day

trial, the defendant was convicted of murder in the first degree

on the theories of premeditation and extreme atrocity or

cruelty.

     On appeal, the defendant raises numerous claims of error.

He contends that the trial judge abused her discretion in

admitting in evidence recorded telephone calls made on the day

of the murder between the defendant and his girl friend, Linda

Reid, who was incarcerated at the time; that a medical record

containing the preliminary "urine toxicology screen," which

showed that he tested negative for any drugs, was erroneously

admitted; that counsel was ineffective in failing to object to

the admission of the toxicology report and failing to use a

prior inconsistent statement to impeach Reid on her unfounded

assertion that there was no Ativan in the house at the time of

     2
       The Commonwealth presented evidence that the defendant had
had sex with the victim and alleged that the murder was
committed in the course of an uncharged aggravated rape.
                                                                     4


the murder; that the trial judge erred in instructing the jury

that there is no "legal limit" of intoxication for any purposes

other than determining whether one is guilty of operating a

motor vehicle while under the influence of alcohol; and that his

right to a public trial was violated when his uncle was

prevented from entering the court room during jury empanelment.

For the reasons stated below, we find no reversible error, and

discern no basis to exercise our authority under G. L. c. 278,

§ 33E, to reduce or reverse the verdict.   As a result, we affirm

the defendant's conviction.

    1.   Background.   We summarize the facts the jury could have

found, in the light most favorable to the Commonwealth.

Commonwealth v. Sanna, 424 Mass. 92, 93 (1997).

    a.   The murder.   The victim arrived at the Quincy Adams

Restaurant in Quincy at approximately 1 P.M. on May 3, 2002.

Catriona Craig, a bartender at the restaurant, had known the

victim as a customer for two years.   The victim's boy friend,

Evan Baker, whom Craig also had known for over one year, was

already in the restaurant playing the game Keno.    The victim sat

on the other side of the bar from Baker, and the two argued a

bit without speaking directly to one another, using Craig as an

intermediary.

    At approximately 2 P.M., the defendant entered the

restaurant and sat with the victim at the bar.     The two sat
                                                                     5


together for the entirety of the defendant's stay and struck up

a conversation.     Baker never spoke to either the defendant or

the victim.   The defendant left the bar between 3:30 and 4 P.M.,

the victim left a few minutes later, and Baker left a minute

after that.    Baker returned ten minutes later, alone, to play

Keno for another ten minutes before leaving.

    The defendant lived at 16 Sumner Street with his girl

friend, Linda Reid, who had been incarcerated the previous week.

At 4:30 P.M., Joshua Delong, a resident of 18 Sumner Street, saw

the defendant return to the building and enter his apartment

with a woman he would later identify as the victim.

    Delong lived with his mother, Shirley Folsom (Shirley), and

his two brothers.     At the time of the murder, Shirley's sister,

Donna Hons, and brother-in-law were visiting and staying in the

apartment across the hall from Shirley's.     That apartment was

directly above the defendant's apartment.

    At approximately 6 P.M., Shirley and her family went out to

dinner.   When they returned around 9 P.M., members of the family

heard loud banging noises emanating from the defendant's

apartment, which occurred continuously until 11 P.M.     Shortly

thereafter, Hons heard noises coming from outside and looked out

the window to see the defendant dragging a barrel through the

back yard.    She watched as he covered the barrel with a blanket

and tried unsuccessfully to lift it into a nearby shopping cart.
                                                                       6


After watching for a while, she went to get Shirley, who then

observed the defendant dragging a barrel with a human leg

protruding from it, prompting her to call the police.

     Officers David Levine and John Michael McGovern of the

Quincy police department responded to the scene at 11:56 P.M.

They proceeded to the back yard, where they found a pile of

garbage bags.    After speaking with one of the witnesses, they

rummaged through the trash barrels in the backyard, finding

clothing covered in reddish stains.    They also noticed a

similarly stained shower curtain in a shopping cart near the

barrels and a trail of droplets of a red substance leading to

the rear door of the house.

     The two officers separated, with Levine staying in the rear

of the house and McGovern heading to the front.    Levine

proceeded up to the rear doorway.   Looking downward through a

window in the rear door,3 he saw what appeared to be two human

feet sticking out of a plastic shopping bag.    He also saw the

legs of someone -- presumably the defendant -- standing by the

feet.    He announced his presence and ordered the door open.    The

defendant said "hold on," and ran from the room.




     3
       Officer Levine described the rear door as "a wooden door
with a window in the middle with an interior curtain across."
He was able to look down through the space between the curtain
and the door to see a small portion of the room.
                                                                      7


     Levine forced his way into the apartment and went directly

into the kitchen, where he saw the victim's body in a garbage

barrel.     She was placed in the barrel head-first, with her legs

in the air.    Her body had been dismembered, with part of her

legs cut off.    A blood-stained hacksaw subsequently was found in

the barrel with the victim.

     Meanwhile, Officer McGovern heard a commotion and returned

to the back of the building in time to see Levine break into the

apartment.    He radioed for assistance and returned to the front

door, which he kicked in.     Several officers arrived moments

later and undertook a search of the apartment.     The defendant

was found hiding in a bedroom closet with the victim's blood on

his hands and clothes.4    He was ordered to the floor and

arrested.    Sergeant Charles E. Santoro immediately read the

defendant the Miranda warnings, which the defendant indicated he

understood.    He told Santoro that the person in the barrel was a

woman, and that he had taken "all kinds of pills."

     The medical examiner who performed the victim's autopsy

testified that the victim suffered through a series of brutal

injuries before her death.    He determined that there were ten

lacerations caused by blunt trauma to her head.     Though he could

not testify as to what caused the trauma, a broken hammer with

     4
       Forensic testing confirmed that the blood on his hands and
clothes was either the victim's blood or a mixture that included
the victim's blood.
                                                                    8


human hair stuck to it was found in a trash barrel taken from

the backyard.5   The victim had abrasions on her nose, a black

eye, and bruises on her arms, hands, and shoulders.   Three

fingers on her left hand and one on her right hand had been

pulled off while she was still alive, with one finger on her

left hand hanging on by the skin.   She also suffered three stab

wounds to her left abdomen, one of which perforated her small

intestine.   The medical examiner determined her cause of death

to be a combination of the blunt head trauma, abdominal stab

wounds, and traumatic amputation to her fingers.    Postmortem,

she suffered a ten-inch long, five- to six-inch deep cut to her

right femur and the total amputation of both legs below the

knee.

     b.   The defendant's statements.   At the booking station,

the defendant made a telephone call to his mother that Officer

David Santosuosso was able to overhear.6   He told her that he had

met a woman earlier in the day, that she had come back to his

apartment, and that a man may have come back with her.    He said

that he was either "blacked out" or "whacked out," and told her

that he was charged with murder.    He later called her again, at


     5
       The barrel also contained clothing, a knife, and a human
finger.
     6
       The defendant told officers that he wished to call his
mother, although they had no way of confirming the identity of
the person to whom he actually spoke.
                                                                     9


which point Lieutenant John Sullivan overheard him say, "They

think I killed her, I don't know how she got there, I just woke

up and she was there."7

     After he was booked, the defendant spoke to several police

officers and detectives and gave conflicting versions of the

events leading to the murder.    He told Detective Chris McDermott

that he met the victim and her boy friend (whose name he could

not recall) at the Quincy Adams restaurant, invited both of them

to his apartment, went home alone, and apparently fell asleep.

He claimed that he woke up to the sound of them arguing in his

kitchen, and his next memory was being ordered out of the closet

by police.   When asked what happened to the woman found in his

apartment, he said that he did not hurt her, but that he "just

tried to get rid of it."

     He told Detective Robert Curtis that he went to the Quincy

Adams restaurant, had about four beers, and spoke to the victim,

whom he knew only as Cathy.     He went on to say that he invited

the victim to his house, went home alone, and that she arrived

some time later, alone.    He said that her boy friend arrived

after that, and the three had a friendly interaction.    Later, he

     7
       The defendant also told Officer Brian Mahoney while being
booked that he had taken some Ativan that night. The
information was relayed to Lieutenant Sullivan, who decided to
call an ambulance to get the defendant medical attention. He
was taken to the Quincy Medical Center and observed for several
hours, after which he was returned to the police station at
approximately 5:30 A.M.
                                                                   10


told Curtis that the victim and her boy friend arrived at his

house unexpectedly.   But he also stated that he invited the

victim to his house and told her she could bring her boy friend.

In the end, he claimed that he did not remember what had

happened that night, and that he was woken up by the arrival of

the police.   When Curtis pointed out the inconsistencies in the

versions of events he had given, the defendant said that he did

not remember his first two explanations and smiled.

     The defendant also spoke to State police Trooper Brian

Brooks.   The defendant first claimed that he invited the victim

and her boy friend to his apartment, but then went to his

apartment alone and fell asleep.   He later recanted and said

that he had invited only the victim, who took it on herself to

invite her boy friend.   He went on to state that he and the

victim had consensual sex,8 that her boy friend came over an hour

later, and that he fell asleep in his living room while the

victim and her boy friend talked in the kitchen.   He claimed

that the next thing he remembered was "waking up seeing the mess

and the Quincy police at the door."

     c.   The defense.   The defendant pursued a third-party

culprit defense.   His primary theory was that he had been


     8
       The defendant initially denied that he had had sex with
the victim, before eventually admitting to Trooper Brian Brooks
that he had, a fact that subsequently was confirmed by forensic
testing.
                                                                  11


unconscious during the murder due to severe intoxication from

drug and alcohol use, and that another person, likely Baker,

entered the house and killed the victim while he slept.9

Although he did not explicitly argue it to the jury, his

secondary theory was that if he had killed the victim, he was so

intoxicated as to be unable to form the mental state required

for murder, as evidenced by defense counsel's request for an

intoxication instruction.

     On July 27, 2005, after a six-day trial and less than one

day of deliberations, the defendant was convicted of murder in

the first degree on the theories of premeditation and extreme

atrocity or cruelty.   He was sentenced to life imprisonment

without the possibility of parole.




     9
       In response to this argument, the Commonwealth presented
evidence that, on May 4, 2002, police seized the pants, socks,
sneakers, shirt, and cap that Baker was wearing on the night of
the murder, and that each item tested negative for the presence
of human blood. It also called Baker as a witness. Baker
testified that he went to the Quincy Adams Restaurant at
3:30 P.M. to pick the victim up for dinner; that the victim
returned to the bar shortly after they left together; that he
returned to the bar several times -- both alone and with his
mother, Marion Baker (Marion) -- to look for the victim; and
that he finally went home at around 8:30 P.M. Both the
bartender, Catriona Craig, and Marion corroborated Baker's
account that he returned to the bar several times, with Craig
testifying that he was at the bar at 8:30 P.M., that he had not
changed his clothing, and that there was no blood on his
clothing. Finally, Marion testified that Baker was home when
she went to bed around 7 P.M. and woke up at 10 P.M., and that
she did not hear anyone leave the house in between those times.
                                                                   12


     The defendant's first motion for a new trial was filed on

November 16, 2009, and denied on May 27, 2010.    On January 11,

2013, the defendant filed a second motion for a new trial,10

alleging for the first time that the court room was closed to

his uncle during jury empanelment.    The trial judge deemed the

issue waived in a written decision and order on May 30, 2013,

and took no action on the defendant's argument.    This is the

consolidated appeal of the defendant's direct appeal and his

appeal of the trial judge's denial of both motions for a new

trial.

     We address other salient facts as they arise below.

     2.   Discussion.   a.   Recorded telephone conversations.   The

defendant argues that the judge erred in admitting several

recorded telephone conversations made on the day of the murder

between himself and Reid.

     Before Reid's testimony, the prosecutor stated an intention

to play five tape-recorded telephone conversations between Reid

and the defendant.   These conversations were not being offered

for the truth of what was said, but only to rebut the

defendant's contention that he was severely intoxicated to the

point of unconsciousness around the time of the murder, by

     10
       Although the defendant characterizes the motion as a
supplemental motion for new trial, we consider it to be a second
motion for new trial, where the defendant advanced three new
arguments that were not raised in his initial 124-page motion
for a new trial and memorandum in support thereof.
                                                                  13


allowing the jurors "to hear him, what his voice sounds like."

Defense counsel strenuously objected, arguing that, although

"[t]here are no admissions," "[h]e sounds like a lonesome

lover. . . . I don't think he shows himself in a particularly

good light."   He went on to contend that Reid "chastises him

throughout the conversations.   She is chastising him for not

doing what she wants, for being drunk, for drinking, for doing

one thing or another."   The judge overruled the defendant's

objection and allowed the Commonwealth to introduce the

recordings through Reid.

     After the second recording was played, the judge instructed

the jury that the recordings were admitted only to allow the

jurors "an opportunity to hear the defendant's voice at the time

and to evaluate his mental and emotional condition . . . . and

condition of sobriety at the time of the conversations."11     After

a recess, defense counsel again objected to their introduction

and filed a written motion for a mistrial.   He argued that

"[t]his tape recording has been brought before the jury for one




     11
       The prosecutor conceded that the telephone conversations
contained statements showing that the defendant took a check
addressed to Reid, cashed it, and spent some of the money on
alcohol, but explained that there was no way to edit that
portion of the tape, and the judge instructed the jury not to
consider the statement for the truth of the matter asserted.
                                                                    14


thing and one thing only, to show what a low life my client is."

The judge denied the motion.12

     Reid testified that the first telephone call was placed at

approximately 10 A.M. on the day of the murder.     She described

the defendant as sober and coherent at that time.    The second

call was placed between noon and 3 P.M.    Reid testified that the

defendant was drunk at that time.    In this conversation, and

indeed in the remainder of the conversations, Reid repeatedly

chastised the defendant for being intoxicated, for failing to

assist her in her efforts to secure release from prison, and for

spending her paycheck, which she had earmarked for legal

services and rent, on alcohol.   The third call was placed after

6 P.M., the fourth at about 6:45 P.M., and the final call at

8:45 P.M.   On the last four calls, the defendant sounds

intoxicated, yet coherent and responsive.

     The defendant argues that the recordings should not have

been admitted, because they amounted to an "assault against

[his] character, with repeated references to his being a drunk,

a liar, and a thief."    Because the error is preserved, we review

for prejudicial error.    Commonwealth v. Flebotte, 417 Mass. 348,



     12
       The judge did note that the first recording revealed that
the defendant was on probation at the time, and offered to
address the issue with the jury; defense counsel was disinclined
to bring further attention to the matter, and no curative
instruction was given.
                                                                  15


353 (1994).   We conclude that the judge did not abuse her

discretion in allowing the recordings to be played.

    Massachusetts law accords relevance a liberal definition.

Commonwealth v. Sicari, 434 Mass. 732, 750 (2001), cert. denied,

534 U.S. 1142 (2002), quoting Commonwealth v. LaCorte, 373 Mass.

700, 702 (1977) ("rational tendency to prove an issue in the

case").   See Commonwealth v. Vitello, 376 Mass. 426, 440 (1978),

overruled on other grounds by Commonwealth v. Mendes, 406 Mass.

201 (1989), and cases cited ("renders the desired inference more

probable than it would be without the evidence").   Relevant

evidence is admissible as long as the probative value of the

evidence is not substantially outweighed by the danger of unfair

prejudice.    Commonwealth v. Keo, 467 Mass. 25, 32 (2014),

quoting Commonwealth v. Smiley, 431 Mass. 477, 484 (2000).

"Whether evidence is relevant in any particular instance, and

whether the probative value of relevant evidence is outweighed

by its prejudicial effect, are questions within the sound

discretion of the judge."    Commonwealth v. Marrero, 427 Mass.

65, 67-68 (1998), quoting Commonwealth v. Valentin, 420 Mass.

263, 270 (1995).

    The relevance of the first recording -- a call that was

placed to Reid at approximately 10 A.M. on the morning of the

murder -- well before the defendant met the victim at the Quincy

Adams Restaurant -- and in which the defendant was apparently
                                                                    16


sober, may seem marginal.   It is not relevant to his

consciousness, sobriety, or general state of mind during the

events leading to the victim's murder.   However, its relevance

is in establishing a base line for the jury regarding the

defendant's speech and voice patterns when he is sober, a base

line that may have been useful to them for comparison purposes

with the defendant's later calls.   The defendant comes across

during the conversation as sober, coherent, and devoted to Reid.

The conversation is amicable, the two do not argue, and Reid

does not accuse the defendant of lying or stealing.     While the

call does reveal that the defendant was on probation at the

time, the jury were not likely to have believed that the

defendant was guilty of a horrific murder by virtue of being on

probation for an unknown offense.   In addition, the judge

offered to give a limiting instruction on the matter, which

defense counsel declined.   We see no abuse of discretion in

these circumstances.

    The remaining four calls are plainly relevant to show the

defendant's "mental state at or about the time of the homicide,

so as to respond to the defendant's contention that he was so

impaired by alcohol or drugs as to be incapable of forming the

intent necessary for the crime, as well as his contention that

he was unconscious when someone else killed the victim."
                                                                   17


     The second call was placed between noon and 3 P.M., a time

frame which encompasses his initial meeting with the victim at

the Quincy Adams Restaurant.   His level of intoxication

beginning at that time was highly relevant to the Commonwealth's

theory -- that he was not so intoxicated as to be unable to

commit the murder or form the required mental state for malice.

The final three recordings were even more plainly relevant.

According to Delong, the defendant returned to his apartment

with the victim at 4:30 P.M., well before the third call was

placed by Reid at 6 P.M.   Thus, the three calls captured a time

period where the defendant and the victim were at his apartment,

a time period where the murder may well have taken place.13

Combined with Hons's testimony that she heard loud noises coming

from the defendant's apartment between 8:15 P.M. and 11 P.M.;

testimony from Hons and Shirley that the defendant was moving

trash barrels at 11 P.M.; testimony from Kathleen McLaughlin,

Reid's friend, affirming that she spoke to the defendant on the

telephone between 8:30 and 8:45 P.M.;14 and testimony from Linda

Reid's mother stating that she received a telephone call from

the defendant's apartment at 10:25 P.M., the recordings were


     13
       The medical examiner was unable to determine either the
time of injury or the time of death with any specificity.
     14
       Kathleen McLaughlin testified that the defendant "wasn't
totally drunk," and that he "wasn't in a bad mood. He was calm.
He just didn't sound like someone that had been drinking a lot."
                                                                     18


relevant to show that the defendant's assertion that he was

unconscious when the murder took place was a fabrication.     They

also allowed the jury to assess his coherence at the time, in

order to determine whether he was capable of forming the

required mental state for malice.

    To be sure, the final four recordings do not paint the

defendant in an especially positive light.   However, they do not

suggest that the defendant had a propensity for violence of any

kind, and certainly not the type of violence that would soon

occur at his apartment.   To the contrary, the picture painted by

the recordings was largely consistent with defense counsel's

portrayal of the defendant.   Defense counsel's opening statement

characterized the defendant as an alcoholic, and described him

as "a drunk, a whimpering sort of fellow . . . a patsy."      He

began his closing by asking the jury, "Did you listen to that

tape with Greg Wall and Ms. Reid?   Did you hear Greg Wall?    Was

that the sound of a killer or a wimp?"   His strategy at trial

was to color the defendant as a drunk who was unwittingly caught

in the middle of a domestic dispute between Baker and the

victim.   The recordings are more in line with the defendant's

theory of the case than with an overt suggestion that the

defendant was a man capable of the violence inflicted on the

victim.
                                                                  19


    In any event, any prejudice was cured by the judge's

extensive instructions to consider the recordings only regarding

the defendant's mental and emotional state at the time, and her

instructions to ignore references to the defendant's alleged

cashing of Reid's paycheck.   See Commonwealth v. Sylvia, 456

Mass. 182, 195 (2010), citing Commonwealth v. Pope, 406 Mass.

581, 588 (1990) (jury presumed to have followed judge's

instructions).   We therefore conclude that, although the judge

erred in allowing the first recording in evidence, the rest were

properly admitted, and the probative value of the calls readily

outweighed any prejudicial effect.

    b.   Impeachment of Reid.   The defendant also argues that

his defense counsel was ineffective for failing to impeach Reid

on her testimony that the defendant did not have Ativan in their

apartment at the time of the murder.   We disagree.

    As noted above, both of the defendant's theories of the

case rested on the premise that he was severely intoxicated at

the time of the murder, specifically due to his professed use of

alcohol and Ativan.   Pursuant to that defense, on cross-

examination, defense counsel elicited testimony from Reid

suggesting that the defendant was a heavy drinker, and that he

was severely intoxicated during the final four telephone

conversations.   Regarding the conversation at 6 P.M., counsel

asked Reid whether the two spoke about drugs.   She responded
                                                                   20


that "[h]e was looking for Ativan in the house."   She added that

he used Ativan whenever she "didn't throw them out on him," and

testified that she often threw them out "[b]ecause he was crazy

when he was taking them."   She then added, "[t]here was none in

the house at that time."

     The defendant contends, correctly, that Reid could not

possibly have known with any certainty whether there was any

Ativan in the house, given that she had been incarcerated since

April 28.15   He also notes that Reid's testimony directly

contradicted a statement she made to Dr. Ira K. Packer, a

psychologist from Bridgewater State Hospital who examined the

defendant with respect to his criminal responsibility before

trial.16   According to Dr. Packer's report, which was not in

evidence, Reid told him that, on the night of the murder, she

called the defendant at approximately 9 P.M.   Packer noted that

"[Reid] indicated that he seemed 'buzzed' and reported that he




     15
       Although the details of Reid's incarceration are not in
the record, Detective Robert Curtis testified that both Reid and
the defendant were placed in protective custody for intoxication
on April 28, 2002. He added that, because Reid was on probation
on an unrelated matter, she was transferred to the Massachusetts
Correctional Institute at Framingham the next day. The
defendant was released.
     16
       The examination of the defendant's criminal
responsibility was ordered by the judge. The defendant did not
pursue a defense of not guilty by reason of mental disease or
defect, and thus Dr. Ira K. Packer did not testify.
                                                                   21


had drunk between six and twelve beers plus having taken some

pills."

    Defense counsel did not impeach Reid with either her

statement to Dr. Packer or the commonsense notion that she could

not be sure whether there were pills in the house because she

had been incarcerated for five days.    Indeed, he did not

question Reid's statement in any way.    He later affirmed that he

did not have a strategic reason for his failure to cross-examine

Reid on the issue.

    "Counsel is ineffective where his conduct falls 'below that

which might be expected from an ordinary fallible lawyer' and

prejudices the defendant by depriving him 'of an otherwise

available, substantial ground of defence.'"    Commonwealth v.

Lavoie, 464 Mass. 83, 89, cert. denied, 133 S. Ct. 2356 (2013),

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

Generally, even on the more favorable standard of review under

§ 33E, "failure to impeach a witness does not amount to

ineffective assistance of counsel."     Commonwealth v. Fisher, 433

Mass. 340, 357 (2001).   Commonwealth v. Bart B., 424 Mass. 911,

916 (1997).   "[A]bsent counsel's failure to pursue some

obviously powerful form of impeachment available at trial, it is

speculative to conclude that a different approach to impeachment

would likely have affected the jury's conclusion."    Fisher,

supra.
                                                                  22


     The defendant has failed to meet his burden.   First, the

jury were informed that Reid was incarcerated at the time of the

murder, and listened to five telephone calls, each of which

began with a recorded statement that the call was being placed

from a correctional institution.   The jury were likely able to

discern that Reid did not have personal knowledge of the

presence of Ativan in the house on May 2 without counsel cross-

examining her on the matter.

     Second, Reid's testimony does not directly contradict her

statement to Dr. Packer.   She merely told Dr. Packer that the

defendant took some "pills," which were not necessarily Ativan.

Further, the introduction of Dr. Packer's report to refute

Reid's testimony was fraught with risks, as the record before us

includes several statements from Reid which would reflect poorly

on the defendant.17,18

     Finally, even if defense counsel's failure to cross-examine

Reid on the issue fell below the standards expected of an

     17
       For example, Reid told Dr. Packer that the defendant
threatened to kill his landlord by "knocking him in the head,
cutting him up, and throwing him in the ocean" due to the
defendant's jealousy over the landlord's interactions with Reid.
The defendant also allegedly woke her one night and "had an evil
look and said if [Reid] ever cheated on him he'd beat [her]
within an inch of [her] life."
     18
       Although the Commonwealth asserts that Dr. Packer
concluded in his report that the defendant was criminally
responsible, that portion of the report is not before us.
However, if the Commonwealth is correct, we cannot say that
defense counsel erred in opting not to introduce such evidence.
                                                                    23


ordinary, fallible lawyer, the defendant still would not have

been materially prejudiced.    The weight of the evidence against

the defendant was overwhelming, where he was seen dragging a

garbage barrel containing a leg through his back yard and was

later found hiding in his closet, covered in blood from the

dismembered body in his kitchen, offering only the defense that

he had slept through a brutal murder committed by a third party

and attempted to dispose of the evidence.    Further, the

defendant offered no expert testimony on the nature or effects

of Ativan in support of his theory that it contributed to his

intoxication.    See Commonwealth v. Green, 408 Mass. 48, 50-51

(1990) (expert testimony required to prove codeine is opium

derivative).    Thus, there is no reason to believe that the

jury's verdict was swayed by Reid's plainly unfounded

speculation that there was no Ativan in the house at the time of

the murder.

    c.   Toxicology report.    The defendant also argues that the

admission of preliminary negative toxicology results in a

medical record was improper.    He did not object to the admission

of the record.   Consequently, we review his claim only to

determine whether any error created a substantial likelihood of

a miscarriage of justice.     Commonwealth v. Francis, 450 Mass.

132, 138 (2007).    While the report was admitted erroneously, we
                                                                  24


find no such likelihood, and thus reject the defendant's

argument.

    In a continuing effort to show the defendant's alleged

intoxication at the time of the murder, defense counsel asked

nearly every witness that came into contact with the defendant

in the hours before and after the crime whether the defendant

appeared to be intoxicated.   With one exception,19 every witness

testified either that the witness did not notice whether the

defendant appeared to be intoxicated or that he did not appear

to be impaired.

    In order to bolster his argument, the defendant moved at

sidebar to offer the first page of the medical record from his

stay at the Quincy Medical Center.   The proffered portion of the

record showed that the defendant's serum alcohol, as measured at

2 A.M. on May 4, 2002, was 243, which the parties stipulated was

equivalent to a BAC of 0.21 per cent as measured by a

breathalyzer.   It also contained a note that there was

"[a]lcohol on [the defendant's] breath."




    19
       Officer John McGovern testified that the defendant
appeared sober when he was arrested. However, he would later
admit on cross-examination that the defendant was "barely
coherent," "confused," and "not mak[ing] a lot of sense," and
described his eyes as "bugged out." No other witness testified
that the defendant smelled of alcohol or looked or acted
intoxicated on the night in question, despite defense counsel's
repeated questions on the matter.
                                                                    25


     In response to the defendant's proffer, the prosecutor

said, "I'm going to put in the whole [medical record], so why

don't we just put the whole thing in?"    Defense counsel did not

object and the entire medical record, consisting of eleven pages

including laboratory results, was admitted in evidence.

     The defendant's medical record also contained the results

of a toxicology screen.    Because the defendant self-reported

that he had taken Ativan pills, a urine test for drugs was

performed.    The toxicology screen report stated that defendant

tested negative for benzodiazepines,20 amphetamine, cocaine,

"tetrahydo," tricyclic antidepressants, barbiturates, and

opiates.    The report contained a disclaimer, however, noting

that "[u]rine results are presumptive based only on screening

methods, and they have not been confirmed by a second

independent chemical method.    These results should be used only

by physicians to render diagnosis or treatment or to monitor

progress of medical conditions."    The medical record also

contained clinician's notes from an examination of the

defendant, stating that, "his urine toxicology screen was

negative for [Ativan]," and another note reading, "Drug screen:

Negative (including for benzodiazepines)."21




     20
          Ativan is a brand name for lorazepam, a benzodiazepine.
                                                                  26


    The defendant now argues that the portions of the record

pertaining to his negative drug test were not presumptively

reliable and therefore inadmissible.   We agree that had there

been an objection, the portion of the records in question would

not have properly been admitted, but we conclude that there was

no substantial likelihood of a miscarriage of justice arising

from their admission.

    "Records kept by hospitals . . . may be admitted . . . as

evidence in the courts of the Commonwealth so far as such

records relate to the treatment and medical history of such

cases."   G. L. c. 233, § 79.   "[T]he statute allows admission of

the substantive content of hospital records because of the

presumption of reliability which attaches to statements relating

to treatment and medical history in these records."    Bouchie v.

Murray, 376 Mass. 524, 527-528 (1978).    See Commonwealth v.

Irene, 462 Mass. 600, 612, cert. denied, 133 S. Ct. 487 (2012),

quoting Doyle v. Dong, 412 Mass. 682, 685 (1992) ("we have

considered the contents of hospital records to be reliable,

'because the entries relating to treatment and medical history

are routinely made by those responsible for making accurate

entries and are relied on in the course of treating patients'").

Section 79 was enacted "primarily to relieve the physicians and

    21
       The drug screen note was on the summary report prepared
by the treating clinician, just below the results of the serum
alcohol text.
                                                                  27


nurses of public hospitals from the hardship and inconvenience

of attending court as witnesses to facts which ordinarily would

be found recorded in the hospital books."   Commonwealth v.

Gogan, 389 Mass. 255, 263 (1983), quoting Leonard v. Boston

Elevated Ry., 234 Mass. 480, 482 (1920).

    However, "[t]he statute is not to be interpreted as

rendering admissible all the contents of hospital records;

rather the medical records exception statute makes admissible

only those portions of records relating to treatment and medical

history which possess the characteristics justifying the

presumption of reliability."   Bouchie, 376 Mass. at 528.

Pursuant to the four-part test announced in Bouchie, supra at

531, in determining whether material contained in a hospital

record is admissible, we must consider whether:   (1) the

document is the type of record contemplated by G. L. c. 233,

§ 79; (2) the information is germane to the patient's treatment

or medical history; (3) the information was recorded from the

personal knowledge of the entrant or from a compilation of the

personal knowledge of those who are under a medical obligation

to transmit such information; and (4) the statements contained

in the record are inadmissible as third-party hearsay statements

not within any exception.

    The record here would initially seem to fall well within

the parameters of the Bouchie test, as there is no doubt that
                                                                   28


the medical personnel obtained and recorded the results of the

toxicology screen for the purpose of treating the defendant's

self-reported drug ingestion.   However, the defendant points us

to two Appeals Court cases concluding that toxicology reports in

markedly similar circumstances were inadmissible.   In

Commonwealth v. Lampron, 65 Mass. App. Ct. 340, 344 (2005), a

preliminary toxicology report was held to be inadmissible where

it contained a disclaimer indicating that "[p]ositive results of

screening tests are not confirmed."   The same was true in

Commonwealth v. Johnson, 59 Mass. App. Ct. 164, 167-168 (2003),

where the record indicated that "a second [test] must be used to

obtain a confirmed analytical result."   In both cases, the

disclaimers "call[ed] the reliability of the test into

sufficient question as to create doubt as to whether the record

alone can stand competent as proof of the medical facts recited

therein."   Id. at 168.

    We conclude that the presumption of reliability that

attaches to the content of hospital records is defeated where

the record explicitly indicates that the results of a toxicology

screen are "presumptive based only on screening methods and have

not been confirmed by a second independent chemical method."

The Commonwealth's argument that it could have introduced the

results of the drug screen through the testimony of uncalled

medical personnel is unavailing.   The fact that the report
                                                                   29


hypothetically could have been introduced in another way does

not alter the fact that the medical record as introduced was

inadmissible hearsay.   We are further unmoved by the fact that

Lampron and Johnson were cases where the presence of drugs were

elements of the charged offenses.

     Despite the error, the defendant suffered no risk of a

miscarriage of justice where the weight of the evidence against

him was overwhelming, and the improper evidence was cumulative

on the issue of the credibility of his story.22

     d.   Intoxication instruction.   The defendant argues that

the judge erred in instructing the jury that the presumption of

intoxication present where the charge is operating under the

influence was inapplicable to this case.   Where the defendant

objected at trial, we review for prejudicial error.    Flebotte,

417 Mass. at 353.   Because the instruction was an accurate

statement of the law, we affirm.

     Given that the crux of his defense was an argument that he

was too intoxicated to have killed the victim, the defendant

     22
       The defendant also argues that defense counsel was
ineffective for agreeing to the introduction of the preliminary
toxicology report. For the reasons stated above, counsel could
not have been ineffective where the admission of the report did
not create a substantial likelihood of a miscarriage of justice.
See Commonwealth v. Wright, 411 Mass. 678, 682 (1992) (where on
review pursuant to G. L. c. 278, § 33E, defendant fails "to show
. . . that, as to an unpreserved claim of error, there is a
substantial likelihood of a miscarriage of justice, he would not
prevail by asserting as to the same issue the ineffectiveness of
his counsel").
                                                                  30


elicited a great deal of testimony regarding his BAC, which was

measured at the hospital as 0.21 per cent.   He asked nearly

every police officer about their experiences with intoxicated

drivers and the legal presumption that a person with a BAC of

0.08 per cent or above is intoxicated for the purposes of the

statute criminalizing operating a vehicle while intoxicated,

G. L. c. 90, § 24 (1) (a) (1).   In closing, defense counsel

stated:

    "that hospital record you will take a look at, I am sure,
    and you will see that his blood serum alcohol was 243, and
    there is a stipulation which we agree and thus you must
    accept it, that that means [0].21 on a breathalyzer -- and
    you heard a lot of conversations between myself and those
    officers about what 0.08 meant in terms of the need to
    arrest somebody who blows that in a breathalyzer for
    operating under a motor vehicle and legal drunk and the
    rest of it. You know that [0].21 is almost three times
    higher than the legal limit. You know that he was very
    much under the influence of alcohol."

    As requested by defense counsel, the judge instructed the

jury on the issue of intoxication:

    "[Y]ou may consider any credible evidence of the
    defendant's consumption of alcohol or other drugs in
    determining whether the defendant deliberately premeditated
    the killing of the deceased, that is whether the defendant
    thought before he acted and whether the defendant reached
    the decision to kill after reflection at least for a short
    period of time. You may also consider those circumstances
    . . . in determining whether the defendant intended to kill
    and with respect to the issue of malice for purposes of the
    theory of first degree murder based on extreme atrocity or
    cruelty. . . . You may also consider those circumstances in
    determining whether the defendant acted in a cruel or
    atrocious manner in causing the death of the deceased. I
    reiterate that whenever the Commonwealth must prove that
    the defendant intended to do something or had knowledge of
                                                                  31


    certain facts or circumstances, in order to prove the
    crime, you may consider any evidence of intoxication in
    determining whether the Commonwealth has met its burden of
    proving the defendant's intent or knowledge."

    Immediately after her instruction on intoxication, the

judge, sua sponte, gave a limiting instruction:

    "Now, I want to clarify one point. In this case, you heard
    various references to a legal limit with respect to
    operation of a motor vehicle. And I want to just clarify
    something on that topic. In Massachusetts, the law is that
    it is unlawful to operate a motor vehicle with a blood
    alcohol content of .08 or more. That is what is referred
    to by the legal limit for purposes of operating a motor
    vehicle. There is no such legal limit for any other
    purpose other than for purposes of operating a motor
    vehicle."

The defendant objected to the instruction, arguing that it

"diminished the defendant's proof of intoxication."

    A trial judge has the duty to state the applicable law

clearly and correctly.   Commonwealth v. Corcione, 364 Mass. 611,

618 (1974), and cases cited.   "In assessing the sufficiency of

the jury instructions, we consider the charge in its entirety,

to determine the 'probable impact, appraised realistically . . .

upon the jury's factfinding function.'"    Commonwealth v.

Batchelder, 407 Mass. 752, 759 (1990), quoting Commonwealth v.

Richards, 384 Mass. 396, 399-400 (1981).

    The defendant does not argue -- and we discern no reason to

conclude -- that the judge's instructions on the elements of

murder or intoxication were inaccurate.    Instead, he merely

argues that the judge's supplemental instruction that the "legal
                                                                     32


limit" for intoxication repeatedly referenced pertained only to

charges of operating a motor vehicle while under the influence

was erroneous.    We disagree.

    First, the judge's instruction was legally and factually

accurate.    The only "legal limit" recognized by the Commonwealth

in the context of criminal conduct is the presumption of

intoxication when driving an automobile with a BAC of 0.08 per

cent or above.   The defendant argues that the "legal limit" also

appears in G. L. c. 111B, § 8 -- the incapacitated person

statute -- which provides that a person is presumed intoxicated

if a breathalyzer examination shows his BAC to be 0.1 per cent

or higher, and that the person shall then "be placed in

protected custody at a police station or transferred to a

facility."    Although he is correct, the incapacitated person

statute is not a criminal statute, and specifically provides

that a person placed in protected custody "shall not be

considered to have been arrested or to have been charged with

any crime."    G. L. c. 111B, § 8.   Thus, the judge's instruction

was accurate.

    The instruction also was not misleading.     Contrary to the

defendant's argument, the judge did not "dilute both the

intoxication instruction . . . and the evidence of

intoxication."   The judge did not suggest that the defendant was

not intoxicated.    She simply, and correctly, informed the jury
                                                                    33


that the defendant's BAC was not dispositive proof of

intoxication for the purposes of determining whether he acted

with malice aforethought, as it would be in a case charging a

defendant with operating a motor vehicle while under the

influence.   She did not suggest in any way that the defendant

was not impaired.

     Further, the judge's instruction did not preclude the jury

from concluding that the defendant was severely intoxicated.

The "effects of liquor upon the mind and actions of men are well

known to everybody."    Commonwealth v. Taylor, 263 Mass. 356, 362

(1928).   It was repeatedly put before the jury, by means of a

stipulation by the parties, that the defendant's BAC was 0.21

per cent.    Defense counsel ably elicited testimony from several

police officers opining that, in their experience, the

defendant's BAC was very high.    In addition, the jury could use

their common sense to ascertain that, if the defendant's BAC was

nearly three times higher than the legal limit to drive an

automobile, he was likely to have been fairly severely

intoxicated.23   In short, the judge's instruction was accurate

and appropriate, and was therefore not given in error.


     23
       We also note the possibility that the judge gave the
instruction in response to defense counsel's actions in
repeatedly referencing 0.08 per cent as the "legal limit" for
intoxication. At sidebar during Officer Levine's testimony, the
judge informed defense counsel that she did not approve of a
question asking whether Levine was aware that a person with a
                                                                   34


    e.   Closed court room.    The defendant finally argues that

his right to a public trial was violated when his uncle was

allegedly prevented from entering the court room during jury

empanelment.   We agree with the judge that the issue was waived.

    The uncle's exclusion, assuming it occurred, was not raised

by the defendant at trial.    Nor was it raised in the defendant's

first motion for new trial filed on November 16, 2009.    In his

second motion for new trial filed on January 11, 2013 -- almost

four years after he filed his first motion for new trial, and

over seven years after his conviction, the defendant alleges

that his right to a public trial under the Sixth Amendment to

the United States Constitution was violated when his uncle was

barred from the court room during the jury empanelment process.

In support of his argument, he proffered an affidavit from the

uncle, in which he alleged that a court officer prevented him




0.08 per cent blood alcohol content is presumptively under the
influence of liquor. She stated, "there is no presumption of
under the influence for any purpose other than driving. This
defendant wasn't driving a car, so I'm going to ask you to steer
clear of that sort of thing." She went on to say: "It's a
determination by the Legislature that a person shouldn't drive
at a certain level. It has nothing to do with any other
purposes. But, in any event, that's a legal matter, not a
factual matter. It's not a question to ask a witness about.
So, I'm going to ask you to steer clear of that." Given that
defense counsel continued to broach the subject, the judge
likely wished to ensure that the jury did not believe that the
defendant was, as a matter of law, too intoxicated to form the
intent for murder; an impression to which defense counsel
contributed.
                                                                     35


from entering the court room while the jury were being

selected.24

     The judge took no action on the defendant's second motion

for new trial.   She determined that the defendant waived his

argument by failing to raise the issue in his original motion

for new trial.   He now appeals from what amounted to the denial

of his motion for new trial.

     The Sixth Amendment right to a public trial extends to the

jury selection process.   See Commonwealth v. Cohen (No. 1), 456

Mass. 94, 106 (2010) (citation omitted).    It is well settled

that the violation of a defendant's right to a public trial is

structural error requiring reversal.     See United States v.

Marcus, 560 U.S. 258, 263 (2010) (citation omitted); Cohen (No.

1), supra at 105 (citation omitted).     However, even structural

error "is subject to the doctrine of waiver."     Id. at 106,

quoting Mains v. Commonwealth, 433 Mass. 30, 33 n.3 (2000).      A

defendant need not consent personally to the waiver of his right

to a public trial; trial counsel may waive the right to a public

trial as a tactical decision without the defendant's express

consent.   Lavoie, 464 Mass. at 88-89.   Further, the right to a

public trial may be procedurally waived whenever a litigant

fails to make a timely objection to an error.     Commonwealth v.

     24
       The defendant also offered an affidavit from defense
counsel averring that he was not aware of any closure and never
discussed the issue with the defendant.
                                                                  36


Morganti, 467 Mass. 96, 102 (2014).   A procedural waiver may

occur where the failure to object is inadvertent.   See id. at

102 (holding public trial claim waived where counsel failed to

object to court room closure during jury empanelment despite

having no tactical reason); Commonwealth v. Alebord, 467 Mass.

106, 113, cert. denied, 134 S. Ct. 2830 (2014) (same).

    Where defense counsel did not object to any alleged court

room closure at trial, and the defendant failed to raise the

claim in his first motion for new trial, we conclude the

defendant's right to a public trial during jury empanelment has

been waived.   See Morganti, 467 Mass. at 102; Alebord, 467 Mass.

at 113.   See also Commonwealth v. Amirault, 424 Mass. 618, 641

(1997), quoting K.B. Smith, Criminal Practice and Procedure

§§ 2070, 2084 (Supp. 1986) (doctrine of waiver applies equally

to constitutional claims not properly raised on direct appeal or

in prior motion for new trial).   "To conclude otherwise would

tear the fabric of our well-established waiver jurisprudence

that 'a defendant must raise a claim of error at the first

available opportunity.'"   Morganti, supra at 102-103, quoting

Commonwealth v. Randolph, 438 Mass. 290, 294 (2002).

    Despite the fact that the claim is waived, we still analyze

the defendant's claim pursuant to G. L. c. 278, § 33E, to

determine whether a closure would subject him to a substantial

likelihood of a miscarriage of justice.   Contrary to the
                                                                  37


defendant's assertion that the evidence is "clear and at this

stage uncontested" that the court room was closed during jury

empanelment, the record contains no such findings from the trial

judge, and indeed the record is insufficient to determine

whether a closure actually took place.    However, we need not

remand the case for further findings.     Even if we were to assume

that the court room was closed in the manner alleged by the

uncle, the closure would not have caused the defendant to suffer

a substantial likelihood of a miscarriage of justice because

there is no "serious doubt whether the result of the trial might

have been different" had the court room not been closed to the

defendant's uncle.   Randolph, 438 Mass. at 297, quoting

Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass.

72 (2005).   See Commonwealth v. Dyer, 460 Mass. 728, 736-737

(2011), cert. denied, 132 S. Ct. 2693 (2012); Commonwealth v.

Horton, 434 Mass. 823, 833 (2001).

    f.   General Laws c. 278, § 33E.     We have reviewed the

record in accordance with G. L. c. 278, § 33E, to determine

whether there is any basis to set aside or reduce the verdict of

murder in the first degree, regardless of whether such grounds

were raised on appeal.   We find no such reason, and we decline

to exercise our powers under the statute.

                                     Judgment affirmed.
