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SJC-08464

                COMMONWEALTH   vs.   CHARLES ROBINSON.



            Barnstable.    May 10, 2019. - July 31, 2019.

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


Homicide. Evidence, Identity, Consciousness of guilt, Motive,
     Prior misconduct. Jury and Jurors. Practice, Criminal,
     Jury and jurors, Interrogation of jurors, Voir dire,
     Argument by prosecutor, Capital case.



     Indictment found and returned in the Superior Court
Department on May 1, 2000.

    The case was tried before Gerald F. O'Neill, Jr., J.


     Joseph F. Krowski for the defendant.
     Elizabeth A. Sweeney, Assistant District Attorney, for the
Commonwealth.


    BUDD, J.     On the evening of February 24, 2000, Edward

Figueroa was found dead at his girlfriend's home.        On August 21,

2000, the defendant was convicted of murder in the first degree

on theories of deliberate premeditation and extreme atrocity or
                                                                   2


cruelty in connection with the victim's shooting death.1   After

full consideration of the trial record and the defendant's

arguments, we affirm the defendant's conviction, and we decline

to grant extraordinary relief pursuant to G. L. c. 278, § 33E.2

     Background.   We summarize the facts as the jury could have

found them, reserving certain details for discussion of specific

issues.

     The victim, who lived with his girlfriend in Dennisport,

was friends with, and sold marijuana for, the defendant.

Because the victim's car was not registered, he had to rely on

friends to drive him to the defendant's apartment in Fall River

to pick up marijuana to sell, and sometimes had "a hard time

getting a ride."   One to two weeks prior to the victim's death,

the victim received rides to Fall River from two different

friends, one of whom observed the defendant in possession of a

revolver approximately five days before the victim was killed.

     On the evening of February 24, 2000, the defendant was

visiting the victim at the victim's girlfriend's home in

Dennisport.   Hours before the victim was shot and killed, the




     1 The defendant was also convicted of assault and battery by
means of a dangerous weapon. The indictment underlying this
conviction was placed on file.

     2 The defendant filed an amended motion for a new trial, on
June 2, 2014, which remains pending in the Superior Court and is
not part of this appeal.
                                                                     3


victim's girlfriend overheard the defendant berating the victim

for failing "to get [his] car on the road."    Although the victim

apologized, saying, "Sorry, Dog. . . .    I didn't mean to offend

you," the defendant told the victim, "I should slap your face.

I should just punch you in the mouth."    Sometime after 9 P.M.,

the victim's girlfriend left the two men alone in the living

room of the apartment.

    At approximately 10:15 P.M., two neighbors heard several

gunshots, and a third neighbor heard a motor vehicle speeding

away.   The victim's girlfriend returned at approximately 10:30

P.M., at which time she noticed that the defendant's car was

gone and the front door to her apartment was partially open.

When she entered the living room of the apartment, she saw that

the victim was dead in a chair that had been tipped backward

onto the floor.

    The victim suffered two gunshot wounds to his head,

including through the left eye and the left temple.    Blood

spatter suggested that the victim was on his back on the ground

when he was shot in the head by someone positioned to the

victim's left.    The wounds indicated that the firearm was

between six inches and three feet from the victim's head when it

was fired.   The victim also had gunshot wounds to his left arm

and right hand, his upper chest, and his left lower leg.
                                                                     4


    A ballistician determined that the five projectiles

recovered from the victim's body were all .38 caliber and were

consistent with having come from the same weapon, likely a

revolver, as no shell casings were recovered from the scene.

    Cell site location information (CSLI) indicated that the

defendant made cellular telephone (cell phone) calls on the

night of the murder between 11:29 P.M. and 1:41 A.M.     The first

of the calls was initiated in Mattapoisett.      Investigators

determined that it would have taken approximately fifty-nine

minutes to travel from the victim's home to Mattapoisett.        Thus,

the defendant could have left the victim's apartment at

approximately 10:15 P.M. and arrived in Mattapoisett

approximately fourteen minutes before making his first telephone

call at 11:29 P.M.

    The defendant's girlfriend initially told investigators

that the defendant had arrived at her apartment at 8 P.M. on the

night of the murder.   However, at trial she testified that she

did not know what time the defendant had arrived at her home

that night.   She further testified that, on the morning

following the murder, the defendant said to her, "I was here

last night, right? . . .   About 8:00, right?"    This caused her

to believe something was going on, and to tell the police that

he got home at 8 P.M. on February 24.
                                                                      5


    Weeks later, when the defendant was being held prior to

trial, he had an argument with his cellmate, during which the

defendant threatened to kill the cellmate.     When the cellmate

responded that the defendant was not going to kill him because

the defendant did not have a gun, the defendant said

essentially, "That's what the other guy thought."

    The defendant's theory of the case was that a third party,

Ryan Ferguson, killed the victim.     On the night prior to his

death, the victim punched Ferguson several times in the head as

Ferguson sought to confront the defendant about the defendant's

attempt to flirt with Ferguson's girlfriend.      Ferguson later

telephoned a friend seeking access to a firearm, and vowed to

get revenge against the victim.     However, there was no evidence

that Ferguson ever obtained a firearm, and there was testimony

from witnesses that he was with others at the time that the

victim was killed.

    Discussion.      1.   Sufficiency of evidence.   The defendant

argues that the judge erred in failing to allow his motion for a

required finding of not guilty at the close of the

Commonwealth's case.      He claims that the evidence presented was

insufficient to support the conviction of murder in the first

degree because his identification as the shooter was "left to

speculation."   In considering this claim, we must view the

evidence presented at trial, together with reasonable inferences
                                                                    6


therefrom, in the light most favorable to the Commonwealth to

determine whether any rational jury could have found each

element of the offense beyond a reasonable doubt.     See

Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).     As

discussed infra, we conclude that the Commonwealth met its

burden with respect to proving beyond a reasonable doubt that

the defendant was the killer and that he acted with

premeditation as well as with extreme atrocity or cruelty.

    We acknowledge that the identification evidence was

circumstantial; however, "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" (quotation and

citation omitted).     Commonwealth v. Martin, 467 Mass. 291, 312

(2014).   Here, the evidence presented would allow a rational

fact finder to conclude beyond a reasonable doubt that the

defendant shot the victim several times with his revolver and

fled to his girlfriend's home in Fall River.    See Commonwealth

v. Cohen, 412 Mass. 375, 380 (1992) ("absence of direct proof by

way of an eyewitness who saw the defendant shoot the victims is

not damaging to the Commonwealth's case so long as there is

competent circumstantial evidence that establishes the

defendant's guilt").
                                                                    7


    Testimony was presented that allowed the jury to conclude

that the victim sold drugs for the defendant on a regular basis.

Because the victim's car was unregistered, he relied on friends

to drive him from Dennisport to where the defendant lived in

Fall River to replenish his supply, and the victim sometimes had

trouble with transportation.   The jury could have inferred that

the defendant was not happy with this arrangement, given the

testimony from the victim's girlfriend that when the defendant

came to visit the victim the defendant told her that he was

there "to find out where [the victim's] head was at."   The

girlfriend further testified that the defendant expressed anger

that the victim was unable to "get [his] car on the road," and

threatened the victim with physical violence.

    The victim's girlfriend left the defendant and the victim

alone sometime after 9 P.M. on the night of the killing.   At

approximately 10:15 P.M., neighbors heard gunshots and a motor

vehicle speeding away.   When the victim's girlfriend returned at

approximately 10:30 P.M., she found the defendant and his car

gone, and the victim dead from gunshot wounds.   The Commonwealth

introduced CSLI data that was consistent with its argument that

the defendant shot the victim and thereafter traveled south to

Fall River.   In addition, the ballistic evidence indicated that

the bullets removed from the victim's body were all of the same

caliber and likely fired from the same weapon, a revolver; a
                                                                      8


witness testified to seeing the defendant with a revolver five

days before the killing.     See Commonwealth v. McGee, 467 Mass.

141, 155-156 (2014) (evidence that defendant possessed firearm

consistent with weapon used in shooting admissible to

demonstrate defendant had means to commit crime).

    Moreover, the jury could infer that the evidence presented

demonstrated consciousness of guilt.     See Commonwealth v.

Morris, 465 Mass. 733, 736-738 (2013) (although consciousness of

guilt alone not sufficient to sustain conviction, such evidence

may be used, along with other evidence, to establish proof of

guilt beyond reasonable doubt).    The defendant's girlfriend

testified that on the morning following the murder, the

defendant said, "I was here last night, right? . . .    About

8:00, right?," suggesting that he wanted investigators to

believe that he arrived at her home much earlier than he

actually did.   In addition, two witnesses from the Barnstable

County house of correction testified that, weeks after the

shooting, the defendant alluded to having killed the victim.

    Thus, the Commonwealth demonstrated that the defendant had

the motive, opportunity, and means to kill the victim, as well

as consciousness of guilt.     See Commonwealth v. Emeny, 463 Mass.

138, 151 (2012) (evidence sufficient to convict where

Commonwealth provided evidence of motive, means, opportunity,

and consciousness of guilt).    Although any one piece of evidence
                                                                    9


by itself would not have provided sufficient evidence of the

defendant's identity as the person who shot the victim, taken as

a whole, the evidence supports such a finding beyond a

reasonable doubt.   See Commonwealth v. Javier, 481 Mass. 268,

283 (2019), quoting Commonwealth v. Salim, 399 Mass. 227, 233

(1987) ("evidence taken together may form proof of crime where

any individual fact, taken alone, does not").

    In addition to having presented sufficient evidence for the

jury to have found beyond a reasonable doubt that the defendant

was the shooter, the Commonwealth also presented sufficient

evidence that the defendant killed the victim with deliberate

meditation as well as with extreme atrocity or cruelty.     To

prove murder in the first degree on a theory of deliberate

premeditation, the Commonwealth must show beyond a reasonable

doubt that the defendant intentionally caused the victim's death

and that he decided to kill after a period of reflection.

Commonwealth v. Whitaker, 460 Mass. 409, 418 (2011).     "No

particular period of reflection is required for deliberate

premeditation to be found.   The law recognizes that a plan to

murder may be formed within a few seconds" (citation omitted).

Commonwealth v. Chipman, 418 Mass. 262, 269 (1994).    Deliberate

premeditation can be inferred from the bringing of a firearm to

the scene of the killing, Commonwealth v. Williams, 422 Mass.

111, 122-123 (1996) (defendant brought loaded revolver to
                                                                     10


victim's apartment), or from the nature and manner of the

injuries inflicted, Commonwealth v. Anderson, 396 Mass. 306, 312

(1985) (defendant fired five shots, two of which struck victim).

    To prove extreme atrocity or cruelty, the Commonwealth must

demonstrate one or more of the so-called Cunneen factors:

    "(1) whether the defendant was indifferent to or took
    pleasure in the victim's suffering; (2) the consciousness
    and degree of suffering of the victim; (3) the extent of
    the victim's physical injuries; (4) the number of blows
    inflicted on the victim; (5) the manner and force with
    which the blows were delivered; (6) the nature of the
    weapon, instrument, or method used in the killing; and (7)
    the disproportion between the means needed to cause death
    and those employed."

Commonwealth v. Linton, 456 Mass. 534, 546 n.10 (2010).        See

Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983).      The

Commonwealth presented evidence that the victim, who had been

struck by five bullets, was found in a chair that had tipped

backward onto the floor with gunshot wounds to his head, chest,

arm, hand, and leg.    The jury could have found from this

evidence that the victim saw that he was about to be shot,

attempted to defend himself, and was propelled backward by the

initial shots fired.    Further, the evidence also allowed an

inference that the shots to his head were fired at close range

after he had fallen back in his chair.    Thus, when viewed in the

light most favorable to the Commonwealth, the jury could have

found at least one of the above factors.    See, e.g.,

Commonwealth v. Alicea, 464 Mass. 837, 853 (2013) (extreme
                                                                   11


atrocity or cruelty found where victim was shot as he turned to

flee and suffered from multiple gunshot wounds including fatal

head wound).

    2.    Juror issues.    The defendant contends that the judge

mishandled two issues that arose in connection with two sitting

jurors.   As discussed infra, we perceive no reversible error.

    a.    Juror no. 2-7.    On the morning of the third day of

trial, juror no. 2-7, an African-American woman, expressed

concern about her bias to a court officer, who in turn notified

the judge.     After conferring with the parties, the judge held a

colloquy in his chambers outside the presence of the parties.

During the colloquy, the juror explained that she "was really

angry" with some of the witnesses because she saw them as

"refus[ing]" to "avail themselves of the opportunities out

there."   The juror also mentioned with disapproval a tattoo on

the neck of one of the witnesses, which, according to the juror,

was the Chinese character for "mouth," "joy to the mouth," or

"repeatedly."    The juror further stated that she "tried to set

aside [her] own past and [her] own biases, but they [kept]

coming to the forefront."

    When asked whether she had shared her thoughts with any of

the other jurors, the juror stated that she spoke with two other

jurors, who were educators like herself, "in general" about "the

decline of student values, morals, et cetera -- parental care,"
                                                                    12


and that she had told a juror that the witness's tattoo meant

"mouth, to the mouth, or repeatedly."    The entire exchange

between the juror and the judge was transcribed by the court

reporter and read back verbatim to the parties immediately after

the colloquy, and after a discussion with counsel, the judge

excused the juror.   The judge declined, however, to inquire of

the remaining jurors whether they were exposed to, or had been

affected by, juror no. 2-7's biases.

    i.   Exclusion from juror colloquy.    Although trial counsel

did not object to being excluded from the colloquy with juror

no. 2-7 at the time it took place, the defendant now argues that

the exclusion was reversible error.    We disagree.

    "When a judge conducts an inquiry about a consequential

matter, such as alleged serious misconduct of jurors, there is a

requirement, deriving from the constitutional right of

confrontation, that the defendant and his counsel be present."

Commonwealth v. Angiulo, 415 Mass. 502, 530 (1993), and cases

cited.   However, the defendant may waive the right by not making

a request to be present for the inquiry.    Commonwealth v. Dyer,

460 Mass. 728, 738 (2011), cert. denied, 566 U.S. 1026 (2012).

    Here, because the defendant did not object to being

excluded from the in-chambers interview of juror no. 2-7, we

review the judge's actions for a substantial likelihood of a

miscarriage of justice.   See id. at 735 n.7 (where
                                                                     13


constitutional claim is waived, we nonetheless apply "extra

level of review under G. L. c. 278, § 33E").   Although trial

counsel on both sides should have been present during the

judge's colloquy with juror no. 2-7, there was no reversible

error.

    The transcription of the colloquy was read back to the

parties verbatim immediately after the colloquy occurred.      See

Commonwealth v. Martino, 412 Mass. 267, 286-287 (1992).      The

defendant does not argue now, and did not argue at the time,

that the colloquy was defective, or that trial counsel would

have requested a different line of questioning had he been

present for the colloquy.   In fact, the defendant's trial

counsel characterized the judge's questioning as "wholly

appropriate."   The defendant had a "sufficient opportunity to

evaluate the problem and to arrive at a solution that [he], at

the time, thought was in his best interests," see id. at 287,

even though the judge ultimately dismissed the juror over his

objection.   Thus, we discern no substantial likelihood of a

miscarriage of justice with regard to the colloquy.

    ii.   Voir dire of jurors for taint.   The defendant also

argues that the judge should have made individual inquiry of

each juror after dismissing juror no. 2-7 to ensure that, to the

extent that certain jurors had been exposed to juror no. 2-7's
                                                                   14


biases, those jurors could nevertheless be fair and impartial in

deciding the case.

     "When a judge determines that the jury may have been

exposed during the course of trial to material that 'goes beyond

the record and raises a serious question of possible prejudice,'

he [or she] should conduct a voir dire of jurors to ascertain

the extent of their exposure to the extraneous material and to

assess its prejudicial effect."   Commonwealth v. Francis, 432

Mass. 353, 369-370 (2000), quoting Commonwealth v. Jackson, 376

Mass. 790, 800 (1978).   We review the judge's decision whether

to conduct such a voir dire for an abuse of discretion.     See

Francis, supra at 370.

     Here, the juror told the judge that she had discussed with

other jurors general matters, such as the decline of values and

morals among young people.   The juror also said that she had

told one other juror the purported meaning of the tattoo on a

witness's neck.3   However, the juror indicated that she did not

share her views on any of the individuals or issues involved in

the case.   Although a voir dire of the remaining jurors may have

been prudent, the judge was well positioned to assess juror no.

2-7's credibility, and it was within his sound discretion to




     3 The defendant's trial counsel offered that none of the
possible meanings of the tattoo was "terribly pejorative either
way."
                                                                  15


credit the juror's statements and to find that the facts did not

raise a "serious question of possible prejudice."    See

Commonwealth v. Tennison, 440 Mass. 553, 557-558 (2003).     We

conclude that there was no error.

      iii.   "Premature" jury discussions.   The defendant contends

that the colloquy with juror no. 2-7 demonstrated that the jury

had engaged in "premature discussions" about the case prior to

the conclusion of evidence, closing arguments, and the judge's

final instructions, depriving the defendant of his

constitutional right to a fair and impartial jury.    See

Commonwealth v. Philbrook, 475 Mass. 20, 30 (2016); United

States v. Jadlowe, 628 F.3d 1, 17-18 (1st Cir. 2010), cert.

denied, 563 U.S. 926 (2011), citing United States v. Resko, 3

F.3d 684, 688-689 (3d Cir. 1993).   He further argues that the

judge's instructions to the jury that it was not essential to

avoid discussing the case prior to deliberations was reversible

error.   We disagree.

      Although "it is improper for jurors to discuss a case prior

to its submission to them (citation omitted)," Jadlowe, 628 F.3d

at 15, contrary to the defendant's assertion, there was no

indication that any members of the jury expressed a point of

view about the evidence or what the outcome of the trial should

be.   See id. at 18 ("not all premature jury discussion about a

case will compromise a defendant's fair trial rights,
                                                                   16


particularly where the conversation does not reflect a point of

view about the evidence or the outcome").

    Here, juror no. 2-7 specifically told the judge that she

had not discussed her views on any issues or individuals

involved in the case.   In fact, other than explaining the

meaning of a witness's tattoo to one juror, there is no

indication that juror no. 2-7 discussed any of the witnesses or

the case at all.   Rather, she said that she had talked with two

other jurors, who were also in the education field, about the

decline of values and morals among young people generally.

Because these topics were, at best, ancillary to facts at issue

in the trial, the judge was not required to address the matter

with the remaining jurors.   See Commonwealth v. Maldonado, 429

Mass. 502, 506-507 (1999), and cases cited (trial judge has

"discretion in addressing issues of extraneous influence on

jurors discovered during trial").

    Nevertheless, the judge gave the following instruction to

the jury at the end of the day on which juror no. 2-7 was

dismissed:

    "Members of the jury, please remember my four admonitions.
    Keep an open mind. Don't discuss the case with anybody
    until you have completed your jury service. Don't discuss
    the case among yourselves. Some information has come to me
    that the jury was discussing the matter. Again, I think
    it's very important -- not essential, but very important
    that you do not. Wait until you have heard the entire
    case. Do not read anything about the case, look at
                                                                   17


    anything about the case, or listen to anything about the
    case until you have completed your jury service."

It was error to instruct the jury that avoiding discussion of

the case prematurely (i.e., after all evidence had been

admitted, closing arguments, and final instructions) was "not

essential."   See Jadlowe, 628 F.3d at 18.   However, as there was

no indication that jurors had deliberated prematurely about the

outcome of the case prior to the instruction, there is no reason

to believe that they would do so after the judge's instruction,

especially where he told the jurors that it was "important" not

to discuss the case.   We conclude that the error did not result

in a substantial likelihood of a miscarriage of justice.   See

Commonwealth v. Santos, 454 Mass. 770, 772 (2009).

    b.   Juror no. 1-5.   At the end of the third day of trial,

juror no. 1-5 informed a court officer that her son was at the

same house of correction as Ferguson, who had testified that day

and who was the individual that the defendant alleged was the

actual killer.   The juror was worried that the witness could

"[g]et to her son"; the court officer observed that the juror

was "really upset."    The judge did not speak with the juror

directly; instead, he asked the court officer to reassure the

juror that "there wouldn't be any problems" and "to inform the

House of Correction of the situation."   However, the judge did

not "see . . . why [Ferguson] would be upset with [the juror's
                                                                     18

son] or anything else."     He informed the parties that the juror

did not give any indication that the situation would affect her

ability to be a juror, and the defendant's trial counsel did not

object to the judge's course of action.

    The defendant argues on appeal that the judge should have

conducted a voir dire of juror no. 1-5.     It is within the

judge's sound discretion to find that there exists "a

substantial risk of extraneous influences on the jury," and to

inquire accordingly.   See Commonwealth v. Boyer, 400 Mass. 52,

55 (1987), and cases cited.    Here, the record demonstrates that

the judge was warranted in concluding that reassuring the juror

of her son's safety and anonymity was adequate.     See

Commonwealth v. Federici, 427 Mass. 740, 747 (1998), and cases

cited ("'serious question of possible prejudice' did not exist

such as to require individual voir dire").     There was no error.

    3.   Character evidence.     The defendant argues that the

judge should not have admitted evidence over his objection that,

in the weeks prior to his death, the victim traveled to Fall

River to obtain marijuana from the defendant.     According to the

defendant, sufficient context for the killing already was

provided by evidence relating to the argument between the

defendant and the victim.     Furthermore, the defendant argues

that the unfair prejudice of the drug transaction evidence was
                                                                    19


exacerbated by the frequency with which the prosecutor referred

to it during closing argument.     We disagree.

    "Evidence of a crime, wrong, or other act is not admissible

to prove a person's character in order to show that on a

particular occasion the person acted in accordance with the

character."   Mass. G. Evid. § 404(b)(1) (2019).     See

Commonwealth v. Helfant, 398 Mass. 214, 224 (1986), and cases

cited.   However, such evidence "may be admissible for another

purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or

lack of accident."     Mass. G. Evid. § 404(b)(2).   See Helfant,

supra.   "Even if the evidence is relevant to one of these other

purposes, the evidence will not be admitted if its probative

value is outweighed by the risk of unfair prejudice to the

defendant."   Commonwealth v. Crayton, 470 Mass. 228, 249 (2014),

and cases cited.     "We give great deference to a trial judge's

exercise of discretion in deciding whether to admit a prior bad

act, and we will reverse for an abuse of discretion only where

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

factors . . . such that the decision falls outside the range of

reasonable alternatives'" (quotation omitted).       Commonwealth v.

Veiovis, 477 Mass. 472, 482 (2017), quoting L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).
                                                                     20


    Here, the Commonwealth offered the evidence of the

defendant's drug sales to show motive -- that is, to suggest

that the defendant was angry at the victim for having strangers

drive him to and from the drug transactions -- and the judge

instructed the jury accordingly.    The jury also heard evidence

that the victim needed rides from others because his own car was

not registered; prior to the killing, the defendant was

overheard telling the victim, "That's why I told you to get the

car on the road."     The judge later offered to instruct the jury

again on the proper use of prior bad acts evidence, and the

defendant declined.    In sum, the drug transactions provided

additional context to the relationship between the defendant and

the victim that would not have been available from testimony

about their argument alone.    Thus, we discern no error in the

judge's decision to admit the prior bad acts evidence.      See

Commonwealth v. Horton, 434 Mass. 823, 828 (2001) (evidence of

defendant's drug dealing admissible to show motive and

relationship between defendant and victims).     See also

Commonwealth v. Walker, 460 Mass. 590, 612-613 (2011) (same).

    4.   Closing arguments.    The defendant argues that the

following excerpt from the Commonwealth's closing argument was

without basis in the evidence:

    "[The victim] was a drug dealer for [the defendant]. He
    went to Fall River to [the defendant's girlfriend's] house
    on a regular basis to get drugs. [Two witnesses] tell us
                                                                    21


    that.[4] And [the victim] acted as a bodyguard for [the
    defendant], interceding even when [the defendant] was being
    challenged by the boyfriend of a girl who he decided he
    wanted." (Emphasis added.)

    Prosecutors are "entitled to marshal the evidence and

suggest inferences that the jury may draw from it."     See

Commonwealth v. Tassinari, 466 Mass. 340, 355 (2013).        The

prosecutor also may suggest "what conclusions the jury should

draw from the evidence."     See Commonwealth v. Ferreira, 381

Mass. 306, 316 (1980).     However, it is impermissible to

"misstate the evidence, to refer to facts not in evidence

. . . , to use evidence for a purpose other than the limited

purpose for which it was admitted, or to suggest inferences not

fairly based on the evidence."    Mass. G. Evid. § 1113(b)(3)(A).

See Commonwealth v. Beaudry, 445 Mass. 577, 580 (2005).        Because

the defendant did not object to the challenged argument at

trial, we review for a substantial likelihood of a miscarriage

of justice.    Commonwealth v. Smith, 449 Mass. 12, 17 (2007).

    We disagree with the defendant's assertion that there was

no evidence that the victim went to Fall River for drugs "on a

regular basis" and that the victim was the defendant's

"bodyguard."   Two witnesses testified that they drove the victim




    4  The defendant also argues that there was no evidence that
these two witnesses, who provided the victim with transportation
to Fall River, were "working together." We see nothing in the
Commonwealth's closing argument suggesting that they were.
                                                                     22


to Fall River to obtain drugs from the defendant; one witness

testified that he drove the victim "a lot."   There was also

testimony that when Ferguson attempted to confront the defendant

about the defendant's comments regarding Ferguson's girlfriend,

the victim attacked Ferguson while the defendant watched.      The

Commonwealth's closing argument suggested fair inferences from

these facts in evidence.   Thus, we conclude that the statements

challenged by the defendant were proper.

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

defendant asks us to exercise our extraordinary power to grant

relief under G. L. c. 278, § 33E.   We have reviewed the record

in its entirety and see no basis to set aside or reduce the

verdict of murder in the first degree.

                                    Judgment affirmed.
