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SJC-12214

               COMMONWEALTH vs. ALEXANDER GALLETT
                   (and five companion cases1).



         Suffolk.     December 7, 2018. - March 20, 2019.

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


Homicide. Robbery. Felony-Murder Rule. Constitutional Law,
     Admissions and confessions, Voluntariness of statement,
     Confrontation of witnesses. Evidence, Admissions and
     confessions, Voluntariness of statement, Joint enterprise,
     Statement of codefendant, Cross-examination. Telephone.
     Joint Enterprise. Practice, Criminal, Capital case, Motion
     to suppress, Admissions and confessions, Voluntariness of
     statement, Instructions to jury, Comment by judge,
     Confrontation of witnesses.



     Indictments found and returned in the Superior Court
Department on November 2, 2010.

     Pretrial motions to suppress evidence were heard by Charles
J. Hely, J., and Janet L. Sanders, J., and cases were tried
before Linda E. Giles, J.


    Jeffrey L. Baler for Alexander Gallett.
    Andrew S. Crouch for Michel St. Jean.




    1   Two against Alexander Gallett and three against Michel St.
Jean.
                                                                    2


     Sarah Montgomery Lewis, Assistant District Attorney
(Jennifer Hickman, Assistant District Attorney, also present)
for the Commonwealth.


     CYPHER, J.   On September 1, 2010, Richel Nova (victim) was

robbed and stabbed to death after being lured to a vacant house

in the Hyde Park section of Boston.     A jury convicted the

defendants, Alexander Gallett and Michel St. Jean, of murder in

the first degree by reason of extreme atrocity or cruelty and

felony-murder.2   The defendants raise various arguments on

appeal.   Gallett contends that the motion judge erred in denying

his motion to suppress statements that he made to police during

his interrogation.    St. Jean argues that there was insufficient

evidence to support the murder conviction; he was prejudiced by

the admission of statements from Gallett's redacted police

interrogation; he was prejudiced by the admission of his own

redacted statements; the judge erred in denying his requests for

various jury instructions; and the judge improperly invoked

juror sympathy.     In addition, Gallett and St. Jean argue that

the judge erred both in limiting the cross-examination of

certain witnesses and in declining to give a humane practice

jury instruction.




     2 The defendants were also convicted of armed robbery and of
breaking and entering in the nighttime with the intent to commit
a felony.
                                                                         3


    For the reasons stated infra, we affirm the defendants'

convictions.    After a thorough review of the record, we also

decline to exercise our authority under G. L. c. 278, § 33E, to

grant a new trial or to reduce the verdicts of murder in the

first degree.

    Background.    We briefly recite the evidence that the jury

could have found, reserving pertinent facts for the discussion

of the defendants' arguments.     In addition, we reserve the facts

that the motion judge found for the discussion of Gallett's

motion to suppress.

    During the afternoon of September 1, 2010, St. Jean,

Gallett, and Gallett's girlfriend, Yamiley Mathurin, were

together at Aline Valery's house in Hyde Park.     Valery overheard

the defendants and Mathurin concocting a plan to rob someone.

Valery left her house, but the defendants and Mathurin stayed

behind.

    Gallett and St. Jean both owned knives.      Gallett's knife

was larger than a pocket knife.     When opened, the blade would

"cover the whole hand."    St. Jean's knife was smaller; the

handle and blade both fit into the palm of a hand when opened.

Gallett usually carried a knife whenever he left the house.        St.

Jean always carried a knife on his person.

    At approximately 8 P.M., the defendants and Mathurin took a

bus to a vacant house in Hyde Park.     At about 11 P.M., Mathurin
                                                                      4


asked Marie Tunis, a resident of an adjacent home, to use her

telephone.   Mathurin telephoned a pizzeria and placed an order,

which included pizzas, chicken wings, and soda, to be delivered.

She asked the pizzeria employee if the delivery driver would

have change for a one hundred or fifty dollar bill.    Mathurin

gave St. Jean's cellular telephone (cell phone) number as the

call-back number and asked the pizzeria employee to send the

delivery driver to the back door of the address to the vacant

house.   At 11:30 P.M., Gallett asked a passerby on the street to

use her cell phone.   The passerby testified at trial that

Gallett used her cell phone in front of the vacant house.

Gallett telephoned the same pizzeria.

    Soon thereafter, the victim arrived with the order.

Mathurin met the victim in the driveway of the vacant house and

escorted him up the rear staircase.   Five minutes later, the

defendants and Mathurin left the house.    Mathurin was holding a

pizza box.   St. Jean drove Gallett and Mathurin away in the

victim's vehicle.

    The group abandoned the victim's vehicle in the rear of a

church parking lot.   The pizzeria sign atop the vehicle had been

removed and discarded behind the church.    Near or in the

victim's vehicle, officers recovered a white pizza box and empty

bleach and rubbing alcohol bottles.     The label on the outside of

the pizza box listed the delivery address as that of the vacant
                                                                    5


house and had St. Jean's cell phone number listed as the call-

back number.

    After abandoning the victim's vehicle, the group returned

to Valery's residence.    Upon arriving, the group appeared

anxious and smelled of bleach.    St. Jean had a cut on his right

hand and was using a bandana to stop the bleeding.    Gallett had

blood on his shirt and on the bottom of his sneakers.

    After the defendants and Mathurin had left the vacant

house, Michael Tunis, who had witnessed the group drive away,

investigated the house with his brother and a friend.     Upon

entering the home, Tunis discovered blood and chicken wings on

the floor near the entryway.    Further into the apartment, in a

room off the kitchen, Tunis discovered the victim lying on his

back.    The victim had visible puncture wounds and was

unresponsive.    Tunis left the house and telephoned police.

    At approximately 12 A.M., police arrived at the vacant

house.    Inside the residence, police discovered the victim's

body along with blood all over the floor; a pizza warmer bag; a

bloody chicken wing box; chicken wings; a knife handle; a bloody

and slightly bent knife blade; and blood on the door frame

leading into the kitchen.    The victim's pants pockets were

pulled inside out.
                                                                    6


     Within two days, a police investigation led to the arrest

of the defendants and Mathurin.3   At the defendants' trial,

redacted inculpatory statements from both defendants were

introduced in evidence by way of audio-video recordings.     In

addition, a plethora of forensic evidence was introduced that

implicated the defendants, including fingerprints and

deoxyribonucleic acid (DNA) found at the vacant house, in the

victim's car, on the victim, on the pizza boxes, on the

defendants' clothing, and on money that Mathurin gave to police

after she was arrested.

     At trial, Gallett did not deny his involvement in the

killing.   Instead, he argued that the evidence of his admissions

to police coupled with his age -- eighteen at the time of the

murder -- supported a conviction of murder in the second degree

rather than murder in the first degree based on deliberate

premeditation, extreme atrocity or cruelty, or felony-murder.

St. Jean's position was that, although he went with Gallett and

Mathurin to the vacant house and broke into it by punching his

fist through glass on the back door, he did not participate in

the victim's murder or robbery, nor did he share the intent to

commit the crimes.




     3 Yamiley Mathurin was indicted for murder, but eventually
pleaded guilty to manslaughter, armed robbery, and breaking and
entering with the intent to commit a felony.
                                                                        7


    Discussion.     1.   Gallett.   a.   Miranda warnings.   Two days

after the murder, Gallett was questioned about the crime.

During the questioning, Gallett confessed to the killing.        A

redacted audio-video recording of his interrogation was admitted

in evidence at trial.    On appeal, Gallett argues that the motion

judge erred in denying his motion to suppress.      He claims that

the Commonwealth failed to demonstrate beyond a reasonable doubt

that he voluntarily waived his Miranda rights and voluntarily

and knowingly made the inculpatory statements.      Gallett contends

that he was incapable of voluntarily waiving his Miranda rights

because of his age -- eighteen at the time of the murder --

coupled with his low intelligence quotient (IQ).       He also

contends that his statements were not made voluntarily because

the interrogating officers induced his statements by

misrepresenting evidence and making false assurances.        Finally,

he contends that the statements should have been suppressed

because police delayed his arrest to prevent him from exercising

his right to make a telephone call.      The Commonwealth argues

that Gallett was not in custody for Miranda purposes during his

interrogation.    Furthermore, the Commonwealth maintains that

even if Gallett were subject to a custodial interrogation, he

was advised of and voluntarily waived his Miranda rights and his

statements were not induced but made knowingly and voluntarily.
                                                                      8


    "In reviewing a decision on a motion to suppress, 'we

accept the judge's subsidiary findings absent clear error "but

conduct an independent review of [the] ultimate findings and

conclusions of law."'"     Commonwealth v. Jones-Pannell, 472 Mass.

429, 431 (2015), quoting Commonwealth v. Ramos, 470 Mass. 740,

742 (2015).    The motion judge found the following.   On the

evening of September 3, 2010, after police had gathered evidence

about the killing of the victim, three officers of the Boston

police department were instructed to locate Gallett and Mathurin

and ask them to accompany the officers voluntarily to the police

station for questioning.     Dressed in plain clothes, but with

their badges visible, the officers approached Gallett and

Mathurin.     Detective Aaron Blocker spoke with Gallett, and the

two other officers spoke with Mathurin.    At the outset, Blocker

informed Gallett that he was not under arrest and was free to

leave.   Blocker asked Gallett to accompany him to the police

station to speak with homicide detectives.    He told Gallett that

Gallett did not have to go with him.    Gallett agreed to go to

the station, but was concerned about Mathurin, who was crying.

Blocker told Gallett that officers would give her a ride.

    Gallett rode with two officers in an unmarked police

vehicle to the station.    He was not handcuffed at any time

before or during the interrogation.    He arrived at the station
                                                                     9


at 8 P.M.   Gallett watched television alone for about one and

one-half hours before the interrogation began.

     At 9:37 P.M., Detectives Brian Black and Jeremiah Benton

began a video-recorded interview with Gallett.    Prior to

beginning the interview, Black read Gallett the Miranda

warnings.   Black read the warnings one at a time.   Gallett

listened to the warnings and then read them himself.    After each

warning, he initialed the warning and informed the officers that

he understood the warnings.

     At first, Gallett denied having any involvement with the

killing.    As the interview progressed, Gallett asked Black what

was happening with his girlfriend, Mathurin.     Black informed

Gallett that she was being charged with murder, armed robbery,

and breaking into a house.    Gallett responded, "Let's talk."

Gallett proceeded to give a detailed account of his and St.

Jean's involvement in the killing and stated that Mathurin just

watched.4   The interview lasted one and one-half hours, at the

end of which Gallett was charged with murder.

     The motion judge concluded beyond a reasonable doubt that

Gallett was not in custody for Miranda purposes during his

interview with the officers at the police station, but that even




     4 A redacted audio-video recording of the confession was
admitted in evidence at trial. The transcript of the
interrogation was not admitted in evidence.
                                                                  10


if he had been, there was no threatening or coercive tactics

used by the officers; Gallett made a knowing, intelligent, and

voluntary waiver of his Miranda rights; and his statements to

police were voluntary.

    b.   Voluntariness.   As a preliminary matter, we need not

address whether Gallett was in custody at the time he made the

inculpatory statements because he ultimately received his

Miranda warnings before he made any inculpatory statements.

"Because [Gallett] was advised of, and waived, his Miranda

rights, the issue becomes whether the Commonwealth has proved,

by a totality of the circumstances, that [Gallett] made a

voluntary, knowing, and intelligent waiver of his rights, and

that his statements were otherwise voluntary."   Commonwealth v.

LeBeau, 451 Mass. 244, 254–255 (2008).   See Commonwealth v.

Medeiros, 395 Mass. 336, 343 (1985) (although voluntariness of

Miranda waiver and voluntariness of statement are distinct

inquiries, totality of circumstances test under each analysis is

same).   In reviewing the totality of the circumstances, we

consider factors such as "promises or other inducements, conduct

of the defendant, the defendant's age, education, intelligence

and emotional stability, experience with and in the criminal

justice system, physical and mental condition, the initiator of

the discussion of a deal or leniency (whether the defendant or

the police), and the details of the interrogation, including the
                                                                     11


recitation of Miranda warnings."     Commonwealth v. Mandile, 397

Mass. 410, 413 (1986).    "A voluntary statement is one that is

'the product of a "rational intellect" and a "free will," and

not induced by physical or psychological coercion.'"

Commonwealth v. Monroe, 472 Mass. 461, 468 (2015), quoting

Commonwealth v. Tremblay, 460 Mass. 199, 207 (2011).     We

conclude that the motion judge's findings and conclusions are

supported by the evidence.

    i.   Age and IQ.     Gallett contends that his age and

relatively low IQ suggest that he did not voluntarily waive the

Miranda warnings and voluntarily make inculpatory statements.

After reviewing the interrogation video recording and hearing

testimony from the interrogating officers, the motion judge

found that Black read the Miranda warnings in a calm and careful

manner and repeatedly informed Gallett that he could stop

answering questions at any time.     Furthermore, the motion judge

found that Gallett appeared calm, was responsive to the

questions, and displayed well-organized thinking and rational

decision-making on how to respond.    The motion judge concluded

that Gallett understood the warnings, wanted to appear

cooperative, and initially related events that he believed would

be helpful to him.

    Based on the evidence presented at the hearing on the

motion to suppress and our independent review of the recorded
                                                                     12


interview, we conclude that the motion judge properly concluded,

beyond a reasonable doubt, that Gallett made his statements

voluntarily after a knowing and intelligent waiver of his

Miranda rights.    Gallett was informed of his Miranda rights and

indicated verbally and in writing that he understood the

warnings.     Although his age -- eighteen at the time of the

murder -- is a relevant factor to consider, it is not a

determinative one.    Cf. Monroe, 472 Mass. at 471 (defendant's

emotional and physical condition, while not determinative, is

substantial factor).     Furthermore, Gallett was an average

student in high school taking college preparatory classes.

While his grades had declined in recent semesters, the motion

judge attributed that to lack of attendance.    There is no

indication that the defendant had cognitive limitations that

would affect his waiver and voluntary statements.    Regardless,

evidence of cognitive limitations "does not compel a

determination as matter of law" that the defendant did not

"knowingly and willingly waive his Miranda rights and make a

voluntary confession."     Commonwealth v. Daniels, 366 Mass. 601,

607 (1975).

    In addition, there is no indication that Gallett had

trouble understanding or answering the detectives' questions

during the interview.    He was not handcuffed, and the detectives

neither yelled at nor acted aggressively toward him.
                                                                  13


    ii.   Misrepresentation, minimization, and assurances.

Gallett argues that the interrogating officers misrepresented

evidence that strengthened their case and made false assurances

that ultimately induced Gallett into making inculpatory

statements.    We conclude that the officers did not act

impermissibly.

    We have suppressed a defendant's statements in

circumstances where police use trickery or a ruse in obtaining a

confession.    Those cases generally have additional circumstances

-- apart from the ruse itself -- that rendered the confession

involuntary.     See, e.g., Monroe, 472 Mass. at 469, 472

(detective's use of minimization and false information, coupled

with coercive tactics relating to defendant's son, rendered

confession involuntary); Commonwealth v. Baye, 462 Mass. 246,

257 (2012) (confession suppressed where police not only

exaggerated strength of evidence against defendant, but also

minimized moral and legal gravity of alleged crime; suggested

that if he did not confess, he would be charged with more

serious crimes; mischaracterized applicable law surrounding

charged crime; and finally, after defendant invoked his right to

counsel, dissuaded defendant from consulting with lawyer);

Commonwealth v. DiGiambattista, 442 Mass. 423, 433–436 (2004)

(confession suppressed where, in addition to presenting

defendant with false evidence suggesting his guilt, police
                                                                   14


minimized defendant's alleged criminal behavior and implicitly

promised leniency as well as alcohol counselling if defendant

confessed).    Cf. Commonwealth v. Cartright, 478 Mass. 273, 288

(2017); Commonwealth v. Selby, 420 Mass. 656, 664–665 (1995)

(confession admissible where only improper factor was police use

of false information in which they pretended to have

fingerprints from defendant at scene of crime to secure

confession).    See also Commonwealth v. Feeney, 84 Mass. App. Ct.

124, 133-135 (2013).

     Here, during the interrogation, officers asked Gallett

whether video footage from inside the bus that dropped him off

in front of the vacant house, his public transit card, or his

cell phone records might reveal his location, movements, and

telephone calls on the night of the murder.5   Officers also

questioned him about possible forensic evidence that could be

found in the victim's stolen vehicle.   The officers' tactics

were well within permissible parameters and did not rise to the

level of "intentional misrepresentation[s] that 'may undermine

"the defendant's ability to make a free choice."'"    Commonwealth




     5 For example, an officer asked Gallett: "[T]here's cameras
on there, on buses, right? . . . So when you get off the bus,
in theory if cameras are hooked up, I can see you getting off
the bus, right?" He also stated: "And then when I pull your
phone records, I haven't pulled them fully yet, I suspect maybe
I'm going to see a phone call or two that's pinging off a tower
right near that house."
                                                                   15


v. Spray, 467 Mass. 456, 467–468 (2014), quoting Commonwealth v.

Scoggins, 439 Mass. 571, 576 (2003).    Their comments did not

impermissibly maximize the apparent strength of their case.       Nor

did their questioning impermissibly suggest that they were in

possession of incontrovertible evidence against Gallett.

    Likewise, the officer's use of minimization and assurances,

to the extent they were employed, were not improper.    Gallett

contends that the interrogating officers minimized the offense

and made assurances by stating:   "You know, maybe there's some

reason it happened"; "I sure wouldn't want to be sitting here

having me thinking that you planned out a murder when maybe all

you were planning out was to get a free meal"; and "It's always

better if you have somebody there that can tell you the truth.

It has to be the truth as to what happened up there, okay?"

These questions and statements were "within the bounds of

acceptable interrogation methods."     Cartright, 478 Mass. at 288.

    Finally, Gallett suggests that the officers coerced him

into believing that his confession would help his girlfriend,

Mathurin.   The officers' questioning was as follows:

    Gallett:   "What's happening to my girlfriend?"

    Officer: "What do you think is going to happen to your
    girlfriend?"

    Gallett:   "Nothing."

    Officer: "Well I'm going to tell you something. Something
    is going to happen to your girlfriend, okay. . . . [S]he's
                                                                    16


    been charged with murder and armed robbery and breaking
    into a house. I'm going to be very honest about that,
    okay?"

    Gallett:   "Let's talk."

Gallett proceeded to give a detailed account of the murder and

stated that Mathurin only watched.    We conclude that while

Gallett's confession was close temporally to the time he learned

that Mathurin was being charged with murder, the officers'

interrogation tactics were not "rife with threats to [Gallett's]

ability to maintain contact with [Mathurin]."     Cf. Monroe, 472

Mass. at 469 (police interrogation characterized as

psychologically coercive where defendant was threatened with

loss of contact with his child).     Nor did the tactics suggest

that cooperation with police would result in leniency for

Mathurin.   Gallett's will was not overborne, and the tactics did

not rise to the level of psychological coercion.    See

Commonwealth v. Scott, 430 Mass. 351, 355 (1999) (although

"[c]oncern for a loved one may, in certain circumstances, render

a confession involuntary," defendant's concern that his sister

would face criminal liability for murder not enough to render

confession involuntary).   Cf. Monroe, supra (detectives

threatened defendant with loss of contact with his child by

claiming repeatedly and falsely that if he did not tell them

what happened, his child could be taken away and raised by
                                                                    17


strangers).   The statement by the officer about Mathurin was

accurate and made in answer to a question posed by Gallett.

    Based on the totality of these circumstances, we see no

reason to disturb the judge's conclusion that the Commonwealth

established that the defendant knowingly, intelligently, and

voluntarily waived his Miranda rights and that his statements

were voluntary beyond a reasonable doubt.

    iii.    Telephone call.   Gallett argues that his statements

should be suppressed because police purposefully delayed his

arrest to prevent him from making a telephone call.    We

disagree.

    An arrested person has a statutory right to make a

telephone call.   See G. L. c. 276, § 33A.   Denying an arrested

person the statutory right to make a telephone call only

necessitates suppression of evidence when the statute is

intentionally violated.    See id.; Commonwealth v. Walker, 466

Mass. 268, 278 (2013) (only intentional violation of defendant's

right to make telephone call requires suppression of evidence;

defendant bears burden of establishing intentional violation).

The right to make a telephone call does not accrue when a

defendant is brought in for questioning, but when the defendant

is formally arrested.     Commonwealth v. Hampton, 457 Mass. 152,

159 (2010).   Gallett was not arrested until his interview

concluded, at which point he was given an opportunity to make a
                                                                    18


telephone call.   Police may defer a decision on whether to

arrest a defendant for nonnefarious purposes.    See id. at 155.

There was no error.

    2.   St. Jean.    St. Jean makes several arguments on appeal.

First, he contends that the evidence introduced at trial did not

support his murder conviction.    Second, he maintains that he was

prejudiced by the admission of his and Gallett's redacted police

interrogations.   Third, he argues that the judge erred in

denying his request for several jury instructions.    Fourth, he

contends that the judge improperly invoked juror sympathy when

she related a story about a jury's performance during the

September 11, 2001, attacks.

    a.   Sufficiency of evidence.    St. Jean claims that there

was insufficient evidence that he acted as either the principal

or joint venturer in the killing and that his motion for a

required finding of not guilty should have been allowed.     The

Commonwealth contends that there was sufficient evidence to

support St. Jean's conviction under a theory of felony-murder,

with armed robbery as the predicate felony, and extreme atrocity

or cruelty.   "We review the denial of a motion for a required

finding of not guilty to determine whether the evidence, viewed

in the 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[s] charged.'"
                                                                     19


Commonwealth v. Gomes, 475 Mass. 775, 781 (2016), quoting

Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass.

215 (2007) and 460 Mass. 12 (2011).     We do not "examine the

sufficiency of the evidence separately as to principal and joint

venture liability."     Commonwealth v. Zanetti, 454 Mass. 449, 468

(2009).     Instead, we ask "whether the evidence is sufficient to

permit a rational juror to conclude beyond a reasonable doubt

that the defendant knowingly participated in the commission of

the crime charged, with the intent required to commit the

crime."     Id.

      To warrant a conviction of felony-murder as a joint

venturer with armed robbery as the predicate felony, the

Commonwealth had to prove that St. Jean was a joint venturer in

an armed robbery and that the victim's death occurred in the

commission or attempted commission of that armed robbery.

Commonwealth v. Rakes, 478 Mass. 22, 33 (2017).     To have found

St. Jean guilty of the underlying felony of armed robbery, proof

was required that St. Jean was part of a venture in which at

least one of the coventurers was armed with a dangerous weapon,

either applied violence to the victim's body or put the victim

in fear, and took the victim's property with the intent to steal

it.   Id.    Absent proof that St. Jean himself was armed, proof

that he knew his coventurer to be armed suffices to satisfy the

standard.     Id.
                                                                    20


    The evidence was more than sufficient to permit a

reasonable jury to find that the defendant committed the murder

under a theory of felony-murder.     Valery testified that she

overheard the defendants and Mathurin planning to rob someone.

Valery stated that St. Jean said the group was "looking for a

vic."   The defendants and Mathurin ordered pizza to be delivered

to a vacant house.     Mathurin asked if the delivery driver could

change a one hundred or fifty dollar bill.     St. Jean always

carried a knife on his person, and Gallett carried his knife

when he left the house.     The jury reasonably could infer that

St. Jean was armed with a knife; thus, the Commonwealth was not

required to prove that St. Jean knew that Gallett was armed.

    The victim was lured into the vacant house and stabbed

sixteen times.    There was evidence of St. Jean's bloody

footprints inside the house, and St. Jean had the victim's blood

on his jeans.    Furthermore, Tunis testified that he saw Mathurin

walk the victim to the rear door of the house and then witnessed

the defendants and Mathurin leave together.    The jury could

reasonably infer that St. Jean was inside the house.    With St.

Jean driving the victim's vehicle, the defendants and Mathurin

then fled the scene.    The defendants and Mathurin abandoned the

vehicle at the rear of a church parking lot.     An empty pizza box

was discovered near the vehicle.     The pizzeria sign that had

been atop the vehicle was found discarded behind the church.
                                                                     21


Empty bottles of bleach and rubbing alcohol were discovered near

or in the victim's vehicle.    Cf. Commonwealth v. Souza, 428

Mass. 478, 490 (1998) (one who manifests indifference whether

owner recovers possession may be found to intend to deprive

owner of it permanently).     Valery testified that the defendants

and Mathurin were nervous and smelled of bleach when she saw

them later that night.   Upon discovering the victim's body,

police noticed that the victim's pockets were turned inside out.

Reasonable inferences from the evidence showed that St. Jean was

armed with a knife, either applied violence to the victim's body

or put the victim in fear, and took the victim's property -– the

pizza, money, and vehicle -- with the intent to steal it.

      Likewise, the evidence was sufficient to support a

conviction under a theory of extreme atrocity or cruelty.      To

warrant a conviction under this theory, the Commonwealth was

required to prove that St. Jean knowingly participated in the

killing, that he intended to cause death or grievous bodily harm

or engaged in an act a reasonable person would know created a

plain and strong likelihood of death, and that the killing was

committed with extreme atrocity or cruelty.     Rakes, 478 Mass. at

35.   "The evidence suffices to warrant a finding of extreme

atrocity or cruelty if it establishes one or more of the so-
                                                                    22


called Cunneen factors."6   Id.   See Commonwealth v. Cunneen, 389

Mass. 216, 227 (1983).

     Fair inferences from the evidence showed that St. Jean was

armed with a knife, planned to rob someone, lured the victim

into the vacant house, and attacked the victim.    The victim was

stabbed sixteen times.   St. Jean contends that there is no

evidence that he actually stabbed the victim.    To the contrary,

St. Jean always carried a knife and had the victim's blood on

his jeans and his sneakers.   Furthermore, he had multiple cuts

on his right hand.   Although St. Jean's theory at trial was that

he cut his hand by punching a window at the vacant house, St.

Jean told doctors at a subsequent emergency room visit that he

had cut his hand with a pocketknife; told officers during his

interrogation that he was cut with a knife during a fight; and

told his cousin that the injuries to his hands were knife

wounds.   Viewed in the light most favorable to the Commonwealth,

the evidence supports the conviction of murder under a theory of

extreme atrocity or cruelty as well.




     6 The Cunneen factors are (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 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 used; and (7)
the disproportion between the means used to cause death and
those employed. Commonwealth v. Rakes, 478 Mass. 22, 35 n.8
(2017). See Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983).
                                                                     23


    b.   Admission of statements.    Gallett did not testify, but

a redacted audio-video recording of his statements was played

for the jury.   A redacted transcript of his interrogation was

given to the jury, but only for reference while they watched the

recording.   The transcript was collected at the end of the

recording and not admitted in evidence.     St. Jean argues that

the admission of the redacted audio-video recording of Gallett's

interrogation violated his constitutional rights under Bruton v.

United States, 391 U.S. 123, 126 (1968), to confront and cross-

examine the witnesses against him.     Specifically, St. Jean

claims that gaps in the audio-video recording and blank spaces

in the transcript directly inculpated St. Jean by inviting the

jury to speculate on the identity of the unnamed accomplice.

The Commonwealth maintains that the admission of Gallett's

redacted statements did not create a Bruton issue because it did

not inculpate St. Jean in the crime.     Because St. Jean objected

to the admission of his statements at trial, this court will

review for error and, if error, whether that error was harmless

beyond a reasonable doubt.   Commonwealth v. Bacigalupo, 455

Mass. 485, 495-496 (2009).

    "Introduction of a nontestifying codefendant's

extrajudicial statement that is 'powerfully incriminating' as to

another codefendant violates a defendant's right to confront the

witnesses against him under the Sixth Amendment to the United
                                                                   24


States Constitution."    Commonwealth v. Santos, 463 Mass. 273,

292 (2012), quoting Bruton, 391 U.S. at 135-136.    Such

"powerfully incriminating" statements include not only direct

mention of a named codefendant, but also substitutions such as

use of the word "deleted" or some other symbol in place of the

codefendant's name, where the jury will realize that the

statement obviously refers to and implicates a specific

codefendant.    See Gray v. Maryland, 523 U.S. 185, 194–197

(1998); Bacigalupo, 455 Mass. at 493-495 (introduction of

nontestifying codefendant's statement that his "friend" was

present at shooting was sufficiently direct reference to

defendant to violate his right to confrontation, notwithstanding

limiting instruction).    A codefendant's statement that becomes

incriminating "'only when linked with evidence introduced later

at trial' . . . generally does not offend the Sixth Amendment,

so long as an adequate limiting instruction is given" (citation

omitted).   Commonwealth v. Blake, 428 Mass. 57, 60 (1998).

       Here, St. Jean asks us to read between the lines and hold

that the gaps in the redacted transcript and audio-video

recording directly inculpated him.    We conclude that there was

no Bruton violation because Gallett's redacted statements did

not name expressly, implicate, or obviously refer to St. Jean so

as to be "facially" incriminating.    See Gray, 523 U.S. at 196–

197.
                                                                     25


    There were three people involved with the killing of the

victim -- Gallett, St. Jean, and Mathurin.      Gallett's statements

made no express reference to St. Jean as his coventurer, and the

blank spaces in the transcript that St. Jean contends were

references to St. Jean easily could have been references to

Mathurin.     See Commonwealth v. Vasquez, 462 Mass. 827, 843

(2012).     Cf. Bacigalupo, 455 Mass. at 493 (only two people were

on trial for shooting that one codefendant said was committed by

himself and "friend").      It would not have been obvious to the

jury that the blank space was specifically referring to St.

Jean.     Cf. id.   Moreover, even if we read in specific pronouns

to the transcript, a single pronoun, if not referencing a

specific individual, would not raise a Bruton issue in these

circumstances.      See Commonwealth v. Wilson, 46 Mass. App. Ct.

292, 294, 298 (1999) (admission of nontestifying codefendant's

bare statement that "[w]e stabbed" victim did not violate Bruton

by suggesting involvement of one or more other perpetrators).

    Although the jury were given a copy of the redacted

transcript so that they could follow along with the audio-video

recording, the transcripts were collected after the recording

was shown and not admitted in evidence.      The judge instructed

the jury that the transcripts were not evidence.      Even where

pronouns such as "us" and "we" were redacted, the blank spaces

that remained were in the transcripts only.      These facts
                                                                      26


significantly detract from St. Jean's theory that the jury were

able to consider the audio-video recording and the transcript

together to form the opinion that the blank spaces in the

transcript referred to St. Jean.

    Where one defendant gives an account of his and a

coventurer's commission of a crime, "it would be a rare case

where the process of redaction did not leave behind some

peculiar language and awkward transitions."   Commonwealth v.

Rivera, 464 Mass. 56, 70, cert. denied, 570 U.S. 907 (2013).

"The law is clear, however, that inferential incrimination can

be properly cured by a limiting instruction . . . ."      Id.   The

judge in this case gave proper limiting instructions on multiple

occasions.   Prior to the showing of the redacted audio-video

recording, the judge instructed that "[c]ertain portions of the

statements ha[d] been redacted based on rules of evidence and

other applicable laws," and that the jury were "not [to]

speculate about the gaps or the reasons for the gaps" and not to

"hold the gaps against any party."   Despite St. Jean's

contention that the "jurors could not be expected, even in the

face of a limiting instruction, to ignore the . . . gaps in the

statements," the jury are presumed to understand and follow

limiting instructions.   See Commonwealth v. Martinez, 476 Mass.

186, 194 (2017).   The judge's limiting instructions therefore
                                                                      27


were sufficient to obviate St. Jean's concern over the gaps.

See Blake, 428 Mass. at 59-63.

    Gallett's redacted statements incriminate St. Jean only to

the extent that the jury accepted the other evidence against St.

Jean that places him at the scene of the crime.     "This will be

the case in virtually any joint trial in which [a codefendant's]

statement is admitted."     Rivera, 464 Mass. at 71.   "The

admission of such a statement -- which only implicates the

codefendant circumstantially when combined with other evidence

in the case -- does not offend Bruton or its progeny."        Id.

There was no error.

    Furthermore, St. Jean argues that the vast scope of the

redactions in both his and Gallett's statements created the

potential for prejudice by inviting the jury to speculate on the

missing portions.     We disagree.   After a thorough review of the

redacted evidence from both Gallett and St. Jean, we conclude

that there was no error.     In our view, the redactions from the

audio-video recordings and transcripts would not lead to

confusion or undue speculation.      In addition, St. Jean relied on

his and Gallett's statements as a critical part of his defense.

He maintained that he was at the scene of the crime, but that he

did not participate in the victim's murder or robbery or share

the intent to commit the crimes.      In light of Gallett's

confession, St. Jean was able to advance his defense that it was
                                                                    28


Gallett who robbed and killed the victim while St. Jean was

merely present at the time of the murder.    Gallett's redacted

confession and St. Jean's own statements supported St. Jean's

defense at trial.

     St. Jean further benefited from redactions in his own

statements that would have contradicted his theory on defense.

For example, in his interrogation St. Jean admitted that he took

the victim's wallet and car keys.   This statement was redacted

from the evidence submitted at trial.    The statement, if

admitted, would have supported the Commonwealth's theory of

felony-murder with armed robbery as the predicate.    Thus, while

there were certain gaps in his interrogation, St. Jean was not

hindered by them.

     St. Jean also argues that there were two instances where

the interrogating officers asked Gallett questions, but the

entirety of his response was redacted.   St. Jean claims that the

officers' questions are not admissible evidence.     Although

questions asked of a witness are not evidence, the officers' two

questions were not accusatory and the redactions that followed

were inconsequential.7   Contrast Commonwealth v. Mejia, 463 Mass.

243, 251 (2012); Commonwealth v. Barbosa, 457 Mass. 773, 799

(2010), cert. denied, 563 U.S. 990 (2011).   There was no error.


     7 The officers asked:   "Where were you?" and "What was
supposed to happen?"
                                                                   29


    c.   Jury instructions.     St. Jean argues that the judge

erred in declining to give two jury instructions:     a

supplemental instruction for armed robbery, and an instruction

on the lesser included offense of use of a motor vehicle without

authority.   Because the defendants objected, we review the

denial of the requested jury instructions for prejudicial error.

See Commonwealth v. Henderson, 434 Mass. 155, 158 (2001).

    i.   Supplemental instruction.    St. Jean argues that the

judge erred in denying his request for a supplemental jury

instruction on armed robbery.    He requested that the judge

instruct the jury that they "must find that the required intent

to steal coincided with the use of force" to find him guilty of

armed robbery and felony-murder.     The judge declined to give the

instruction, stating:   "I think it's inappropriate based on the

state of [the] evidence [of this case]."

    The judge's instructions on felony-murder with armed

robbery as the predicate offense, as a whole, sufficiently

explained to the jury that the Commonwealth was required to

prove the defendant harbored an intent to steal at the same time

he used force.   See Commonwealth v. McGee, 467 Mass. 141, 154

(2014) (where jury charge, as whole, adequately covers issue,

judge is not required to grant particular instruction).

Specifically, the judge instructed the jury that "[t]he actual

force and violence must be the cause of the defendant obtaining
                                                                    30


possession of the property," and that "the Commonwealth must

prove that the defendant took and carried away the property

against the alleged victim's will with the intent to deprive the

alleged victim of his possessions permanently."     These

instructions -- located mere lines apart in the transcript --

necessitate that the "force and violence" coincided with the

"intent to deprive" the victim of his belongings.    Furthermore,

the judge's instruction on felony-murder also conveyed to the

jury that the Commonwealth must prove "the killing occurred in

connection with the felony, and at substantially the same time

and place."   There was no error.

     ii.   Lesser included offense.   St. Jean further argues that

the judge erred in declining to instruct the jury on use of a

motor vehicle without authority as a lesser included offense of

armed robbery.8   The Commonwealth argues that use of a motor

vehicle without authority is not a lesser included offense of

armed robbery in this case because the indictment listed three

other stolen items9 and that the evidence does not provide a

rational basis for acquitting the defendant of armed robbery in

favor of use of a motor vehicle without authority.    The judge


     8 In Commonwealth v. Souza, 428 Mass. 478, 494 (1998), we
held that, in certain circumstances, use of a motor vehicle
without authority is a lesser included offense of armed robbery.

     9 The indictment listed the following items in the
conjunctive: "$143.00 U.S. Currency, car, car keys, and food."
                                                                     31


declined to give the instruction because she thought it was

"highly inappropriate when [there were] four alternative items

that are alleged to have been stolen" and that the instruction

did not fit with "the facts and circumstances of this case."

    "[W]hen the evidence permits a finding of a lesser included

offense, a judge must, upon request, instruct the jury on the

possibility of conviction of the lesser crime."     Commonwealth v.

Roberts, 407 Mass. 731, 737 (1990), quoting Commonwealth v.

Hobbs, 385 Mass. 863, 871 (1982).     Where the evidence provides,

however, no "rational basis for acquitting the defendant of the

crime charged and convicting him of the lesser included

offense," the lesser included instruction is not necessary

(citation omitted).   Commonwealth v. Gould, 413 Mass. 707, 715

(1992).   "Even when evidence is introduced that would justify

conviction for a lesser included offense, the defendant is not

entitled to an instruction thereupon unless the proof on the

elements differentiating the two crimes is sufficiently in

dispute so that the jury may consistently find the defendant

innocent of the greater and guilty of the lesser included

offense" (quotation and citation omitted).     Commonwealth v.

Egerton, 396 Mass. 499, 504 (1986).    "[A] judge is not required

to instruct on a hypothesis that is not supported by the

evidence" (citation omitted).   Gould, supra.
                                                                    32


    Here, the evidence did not warrant a finding of the lesser

included offense of use of a motor vehicle without authority.

The elements differentiating the two crimes were not

sufficiently in dispute so that the jury could consistently find

the defendant innocent of the greater and guilty of the lesser

included offense.   See Egerton, 413 Mass. at 715.    Specifically,

it was not sufficiently in dispute that the defendant intended

to deprive the victim of his vehicle permanently.    The evidence

showed that the defendant drove the vehicle to the back of a

church parking lot, removed the pizzeria sign identifying it as

a pizza delivery vehicle, emptied it out, cleaned it with bleach

and rubbing alcohol, and left it there with a door and two

windows open.   Cf. Souza, 428 Mass. at 490.   Moreover, as the

judge noted, the indictment alleged St. Jean took more than just

the car.   There was evidence that the victim's pockets were

turned inside out, cash was taken, and the group was witnessed

leaving the vacant house with a pizza box.     It would have been

inappropriate to give the lesser included instruction where the

evidence and circumstances of the case did not support it.

    d.     Juror sympathy.   On the first day of trial,

September 11, 2013, the judge began by addressing the jury to

acknowledge the anniversary of September 11, 2001.    The judge

relayed a story from her past experience on the bench.    In sum,

the judge presided over a trial on September 11, 2001, and was
                                                                         33


forced to evacuate the court house.      She told the jury she was

moved that the jurors "all voted unanimously to come back the

very next day."   She told the current jury, "I just wanted to

share that story with you because I'm sure you'll appreciate

you're part of the government here, and the government did go on

and has continued to go on and you are the government here.         So

I wanted to share that story with you and hope you further

appreciate your vital role in our justice system here in the

Commonwealth of Massachusetts and the United States of America."

On appeal, St. Jean argues that the judge improperly invoked

juror sympathy by relaying her story.

    The judge's remarks did not prejudice the defendant.       We

are mindful that the "effect on the jury of whatever a judge

says or does may be significant."      Commonwealth v. Fitzgerald,

380 Mass. 840, 846 (1980).      Here, however, the judge's remarks

were made to emphasize the importance of jury duty.      Her

reference that the jury were part of the government was cursory

and nonprejudicial.   Moreover, "because the judge's remarks were

neither intemperate nor critical of the attorneys, there was no

danger that the judge exhibited to the jury a bias against the

defendant."   See Commonwealth v. Mello, 420 Mass. 375, 392

(1995).   There was no error.

    3.    Gallett and St. Jean.     Both defendants raise several

issues where our analysis coincides.      First, the defendants
                                                                    34


argue that the judge impermissibly limited the cross-examination

of two witnesses -- the medical examiner and an interrogating

officer.    Second, the defendants claim that the judge erred in

denying their request to give a humane practice instruction to

the jury.

    a.     Cross-examination.   At trial, St. Jean attempted to

cross-examine the Commonwealth's medical examiner on wounds on

St. Jean's right hand.    Detective Benton testified that St. Jean

had cuts on "the meaty side on the back of [his] right hand," "a

laceration type injury on the heel near his wrist," and "on the

knuckle."   Defense counsel asked the medical examiner, "If a

person were wielding a knife and injured themselves on the knife

that they were wielding, you would expect to see injuries to the

interior of their palm; is that fair to say?"    The Commonwealth

objected, and the judge sustained the objection.    At sidebar,

defense counsel argued that he should be allowed to question the

medical examiner about any defensive or offensive injuries he

would expect to see in the circumstances raised in his question.

The judge sustained the objection, concluding that she did not

"think this witness [was] qualified to talk about the possible

wounds that might be inflicted on knife wielders."

    Similarly, Gallett attempted to cross-examine Benton about

Gallett's reaction to hearing about Mathurin's arrest during his

interrogation.    The Commonwealth objected, and the judge
                                                                     35


sustained the objection.     At sidebar, the judge emphasized that

the issue of Gallett's change in behavior already had been

thoroughly vetted at the motion to suppress stage.

    On appeal, the defendants argue that the judge violated

their right to confrontation by limiting the cross-examination

of the medical examiner and Benton.     The Commonwealth contends

that the judge did not abuse her broad discretion by limiting

either testimony.

    Both the Federal and State Constitutions "guarantee a

criminal defendant's right to confront the witnesses against him

through cross-examination."     Commonwealth v. Miles, 420 Mass.

67, 71 (1995).   The right is "not absolute," however, and "the

scope of cross-examination rests largely in the sound discretion

of the trial judge."   Id.    In determining whether a limitation

on cross-examination was permissible, "we weigh the materiality

of the witness's direct testimony and the degree of the

restriction on cross-examination."     Id. at 72.   We will not

overturn the judge's determination unless the defendant can

"demonstrate[] that the judge abused [her] discretion and that

the defendant was prejudiced thereby."     Id.

    In St. Jean's case, the judge should have permitted St.

Jean to cross-examine the medical examiner about theoretical

wounds on St. Jean's hand.     The medical examiner testified that

his duty was to perform postmortem examinations of victims'
                                                                    36


bodies.   His duties included examinations of individuals who had

sustained stab wounds.   Given the medical examiner's experience,

it would have been reasonable for the medical examiner to opine

on potential stab wounds on St. Jean's hands.     "A medical expert

may testify, in response to a hypothetical question, that the

type of injury he has observed is consistent with the

Commonwealth's theory of how the wound was inflicted, so long as

that theory is based on other evidence already introduced."

Commonwealth v. A Juvenile, 365 Mass. 421, 438 (1974).     See

Commonwealth v. Burke, 339 Mass. 521, 530 (1959).

    St. Jean is unable, however, to demonstrate that he was

prejudiced by the judge's ruling.    First, the judge did not

completely bar St. Jean from cross-examining the medical

examiner about knife wounds.    St. Jean questioned the expert on

the position of the attacker based on the victim's wounds, the

direction of each stab wound, and the blood loss that would have

resulted from such wounds.     Second, the judge ruled, over the

Commonwealth's objection, that she would allow St. Jean to

present expert testimony regarding the cut to his hand if she

deemed it relevant after the Commonwealth rested.    St. Jean

never sought to call such a witness.     Third, St. Jean was

permitted to present other evidence to show he did not wield the

knife, such as his right handedness, the lack of his blood on

the knife's handle, and an explanation of the presence of his
                                                                    37


blood in other places in the house by suggesting he injured his

knuckle by punching a back door window.     St. Jean was not

prejudiced.

    In Gallett's case, the judge did not abuse her discretion

in limiting the cross-examination of Benton regarding the

voluntariness of Gallett's confession.    As the judge noted, the

issue previously was vetted by the motion judge.     Gallett

actively took part in the redactions of his interrogation.       The

jury viewed a portion of Gallett's police interrogation and

followed along with a redacted transcript.    The part of the

recording that showed Gallett's reaction to hearing about

Mathurin and the corresponding lines in the transcript had been

redacted.   As discussed in more detail infra, any reference to

Mathurin was redacted from the recording and transcript because,

at the time the redactions were litigated, Mathurin was still a

codefendant.   It was not logical to allow Gallett to cross-

examine Benton on evidence that previously had been redacted

from the jury's viewing.    The jury would not have had any

context to Gallett's line of questioning.     Moreover, the judge

did not further restrict the entirety of Gallett's cross-

examination of Benton.     Gallett was able to question Benton

about Gallett's cooperation with the officer's investigation,

which was consistent with his defense at trial that he was

young, cooperative, and remorseful and therefore should be
                                                                   38


convicted of murder in the second degree.     It also would have

been permissible for Gallett to question Benton about Gallett's

demeanor and temperament during the interrogation.

      Gallett's reliance on Commonwealth v. Adams, 416 Mass. 55,

60–61 (1993), is misplaced.    In Adams, we held that, although

the judge instructed the jury regarding the need to determine

the voluntariness of the defendant's inculpatory statements, it

was error to exclude testimony from the defendant's mother and a

forensic psychiatrist that tended to show that the defendant had

been coerced into a confession by the presence of his mother.

Id.   As we examined in a later case, the defendant's mental

health in Adams was a live issue at trial.     See Commonwealth v.

Weaver, 474 Mass. 787, 812–813 (2016), aff'd, 137 S. Ct. 1899

(2017).    Here, "while we regularly admit expert testimony

regarding the voluntariness of a statement where the defendant

suffers from a mental impairment or mental health issue, there

is no evidence that [Gallett] had cognitive limitations or

suffers from a mental illness that would affect his capacity to

make a voluntary statement."    Id.   Therefore, there was no

prejudicial error in limiting the cross-examination of Benton.

      b.   Humane practice instruction.   The defendants were

interrogated separately in the immediate aftermath of the

killing.    Both defendants made statements that implicated

themselves in the crime.    Prior to trial, they both filed
                                                                   39


motions to suppress their statements, which were denied.     During

the motion in limine stage, the defendants participated in

redacting the recordings and transcripts of their

interrogations.

    At trial, the defendants requested a humane practice jury

instruction.   The judge found that the defendants chose not to

make the voluntariness of their statements a live issue at

trial, and thus, the judge declined to give a humane practice

instruction.   Gallett's counsel argued that he attempted to

cross-examine Benton about Gallett's reaction to hearing that

Mathurin was being charged with murder.   For evidentiary

reasons, the judge found that Gallett was "clearly . . .

prohibited from introducing any evidence about . . . Gallett's

alleged reaction when . . . Mathurin's name was mentioned" and

that Gallett "adduced no admissible evidence relative to

voluntariness."   The judge continued by stating that the line of

questioning to Benton was not foreclosed because counsel could

have asked him "about [Gallett's] behavior."   She stated that

Gallett's counsel "elected not to pursue questions which would

have been permissible."   Most notably, the judge concluded that

even if Gallett's counsel could argue that Gallett's demeanor

did change in order to put into question the voluntariness of

his statements,
                                                                  40


    "[a]ny statements that he made, supposedly when he was
    thinking about . . . Mathurin, . . . [had] nothing to do
    with the statements that were actually admitted in this
    trial. The ones that were admitted were the ones we saw
    [in the audio-video recording] and nothing that I saw [in]
    that [recording] would in any way raise the issue of
    voluntariness."

    St. Jean's counsel took a different approach.    He stated

that he "didn't raise [voluntariness] as an issue in the trial

. . . [because he] believe[d] that the video [of St. Jean's

interrogation] spoke for itself, and [he] didn't need to ask

more questions about it."

    On appeal, the defendants argue that it was reversible

error for the judge to decline to give a humane practice

instruction.    We disagree.

    We begin with a brief historical account of the origins of

the humane practice instruction.    Under the early English common

law, confessions were admissible at trial without any

restrictions.    Morgan, The Privilege Against Self-Incrimination,

34 Minn. L. Rev. 1, 14–18 (1949).    Even incriminating statements

that were obtained by torture were not excluded.    Id. at 18.

For the past 235 years, however, the common-law rule has been

that a coerced or involuntary confession may not be admitted in

evidence against a defendant at a criminal trial.    2 W.R.

LaFave, J.H. Israel, N.J. King, & O.S. Kerr, Criminal Procedure

§ 6.2(a) (4th ed. 2018) (LaFave).    This rule appears to have

been first stated in 1783 in the case of The King v.
                                                                   41


Warickshall, 168 Eng. Rep. 234 (K.B. 1783).    The Warickshall

court stated:

    "A free and voluntary confession is deserving of the
    highest credit, because it is presumed to flow from the
    strongest sense of guilt, and therefore it is admitted as
    proof of the crime to which it refers; but a confession
    forced from the mind by the flattery of hope, or by the
    torture of fear, comes in so questionable a shape when it
    is to be considered as the evidence of guilt, that no
    credit ought to be given to it; and therefore it is
    rejected."

Id. at 235.   See LaFave, supra.   Undoubtedly, the birth of the

English common law regarding confessions came about because the

use of physical force was causing defendants to confess to

crimes they did not commit.   In 1850, this court held for the

first time that under the common law, "[c]onfessions, to be

admissible, must be free and voluntary.    They are not considered

voluntary, when obtained by any direct or implied promises of

favor or benefit, to be gained thereby."    Commonwealth v.

Taylor, 5 Cush. 605, 610 (1850).   Then, in 1854, we stated:     "To

exclude [a] confession, there must appear to have been held out

some fear of personal injury, or hope of personal benefit, of a

temporal nature."   Commonwealth v. Morey, 1 Gray 461, 463

(1854).   In Morey, we expressed our concern about the use of a

defendant's confession as evidence:   a defendant "may be

induced, by the pressure of hope or fear, to admit facts

unfavorable to him, without regard to their truth, in order to

obtain the promised relief, or avoid the threatened danger, and
                                                                  42


therefore admissions so obtained have no just and legitimate

tendency to prove the facts admitted."   Id. at 462–463.

      The term "humane practice" first appeared in 1885 in

Commonwealth v. Preece, 140 Mass. 276, 277 (1885).   In Preece,

we stated that if a judge determines that a confession is

admissible at trial, "the humane practice in this Commonwealth

is for the judge . . . to instruct the jury that they may

consider all the evidence, and that they should exclude the

confession, if, upon the whole evidence in the case, they are

satisfied that it was not the voluntary act of the defendant."

Id.

      Over time, the law in the Commonwealth developed into its

current state.10   Nearly one hundred years after Preece, in

Commonwealth v. Tavares, 385 Mass. 140, 150, cert. denied, 457

U.S. 1137 (1982), we extended the humane practice rule to apply

not only to confessions, but to all incriminating statements




       We note that prior to its decision in Miranda v. Arizona,
      10

384 U.S. 436 (1966), the United States Supreme Court evaluated
the admissibility of a suspect's confession under a
voluntariness test. See Dickerson v. United States, 530 U.S.
428, 432-433 (2000). "The roots of this test developed in the
common law, as the courts of England and then the United States
recognized that coerced confessions are inherently
untrustworthy." Id. at 433. "Over time, [the Federal cases]
recognized two constitutional bases for the requirement that a
confession be voluntary to be admitted into evidence: the Fifth
Amendment right against self-incrimination and the Due Process
Clause of the Fourteenth Amendment." Id.
                                                                    43


made by the defendant.   Now, the settled law in the Commonwealth

is that "if the voluntariness of the defendant's statements

remains a live issue at trial, the judge must submit the issue

of voluntariness to the jury."    Commonwealth v. Sunahara, 455

Mass. 832, 834 (2010).   "[T]he judge must instruct the jury that

the Commonwealth has the burden of proving beyond a reasonable

doubt that the statement was voluntary and that the jurors must

disregard the statement unless the Commonwealth has met its

burden."   Id. at 835, quoting Tavares, supra at 152.    To be

considered a live issue, "substantial evidence of

involuntariness [must be] produced."     Commonwealth v. Kirwan,

448 Mass. 304, 318 (2007).   If voluntariness is not a live issue

at trial, the judge need not submit the question to the jury.

Id.    However, the jury may still consider the voluntariness of a

statement in evaluating whether to credit it.    This goes to the

jury function of evaluating credibility, not to any role as a

gatekeeper of the admissibility of evidence.

       Here, because the judge refused to give a humane practice

instruction, the only question is whether the voluntariness of

the defendants' statements was a live issue at trial to warrant

the instruction; put another way, the question is whether

"substantial evidence" of involuntariness was produced to

warrant a humane practice instruction.    See Kirwan, 448 Mass. at

318.   We conclude that the issue of voluntariness was
                                                                     44


insufficiently raised to require the judge to give a humane

practice instruction.   See Commonwealth v. Nieves, 429 Mass.

763, 769 (1999).

      In Gallett's case, the instruction was not warranted for

predominantly two reasons.   First, the focus of Gallett's

defense at trial was that, because of his age, intellect, and

cooperation with police, he should be convicted of murder in the

second degree.   In fact, the focus of Gallett's closing argument

was on how his own inculpatory statements warranted a conviction

of murder in the second degree.    After discussing Gallett's age

and the evidence that he was forthcoming with police, Gallett's

counsel stated, "I suggest to you [Gallett's involvement]

amounts to murder.   I suggest to you that it doesn't amount to

first degree murder."   For the jury to have accepted that the

defendant should be convicted of murder in the second degree,

they were required to credit his confession.     A humane practice

instruction would have contradicted Gallett's theory of defense.

See Nieves, 429 Mass. at 769.     Voluntariness is not a live issue

at trial where "[t]he defense did not focus on involuntariness."

Id.

      Second, although Gallett attempted to present evidence

regarding the voluntariness of his statements, he did not

attempt to present admissible evidence.     As the judge noted, the

jury were not privy to the portion of his interrogation
                                                                   45


recording that showed his reaction to the news that Mathurin was

being charged with murder.   That part of the recording was

redacted before trial.11

     Even if the judge should have allowed Gallett to cross-

examine Benton about Gallett's reaction to hearing the news

about Mathurin, Gallett cannot demonstrate prejudice.   Our

review of the transcript suggests that references to Mathurin in

the audio-video recording were redacted prior to the start of

trial -- at a time that Mathurin was still a codefendant -- to

avoid Bruton challenges.   If the agreed-upon redactions in the

recording were reexamined prior to the jury seeing it -- after

Mathurin already had accepted a plea offer -- the portion of the

recording with references to Mathurin might have been

admissible.   At that time, the issue whether substantial

evidence was produced to question the voluntariness of Gallett's

statements would have been a closer one.   See Kirwan, 448 Mass.

at. 318.   Nevertheless, the judge did not completely foreclose

questioning Benton about Gallett's demeanor, temperament, or

behavior during the interrogation.   The judge only foreclosed




     11As stated, at trial, the defendants' video-recorded
interviews were admitted in redacted form and played for the
jury. Redacted transcripts were also given to the jury during
trial, but marked for identification only. The redactions were
made prior to trial and in accordance with a ruling by the
motion judge denying Gallett's motion for relief from
prejudicial joinder.
                                                                     46


reference to Mathurin.     The jury were permitted to consider the

voluntariness of Gallett's statements in their traditional role

as fact finders.    The defendant cannot show prejudice.

    Nor did St. Jean produce sufficient evidence to warrant a

humane practice instruction.     During the charge conference, St.

Jean's counsel admitted that he "didn't raise [voluntariness] as

an issue in the trial . . . [because he] believe[d] that the

video spoke for itself, and [he] didn't need to ask more

questions about it."     Moreover, St. Jean's theory of defense was

that although he went with Gallett and Mathurin to the vacant

house, and broke into the house by punching his fist through

glass on the back door, he did not participate in the victim's

murder or robbery, nor did he share the intent to commit the

crimes.   This theory aligned with what he told the officers

during his interrogation.     St. Jean did not require a humane

practice instruction where his argument to the jury was that his

interrogation statements were evidence that he was not culpable

for the murder.    See Nieves, 429 Mass. at 769.

    Conclusion.    For these reasons, we affirm the defendants'

convictions.   Furthermore, we have reviewed the record in its

entirety and see no basis to grant extraordinary relief under

G. L. c. 278, § 33E.

                                      So ordered.
