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SJC-11671

               COMMONWEALTH   vs.   MARQUISE BROWN.



       Middlesex.     February 12, 2016. - June 17, 2016.

   Present: Gants, C.J., Spina, Botsford, Duffly, & Lenk, JJ.


Homicide. Firearms. Constitutional Law, Admissions and
     confessions, Voluntariness of statement, Waiver of
     constitutional rights, Confrontation of witnesses.
     Evidence, Admissions and confessions, Voluntariness of
     statement, Hearsay, Common criminal enterprise, Joint
     enterprise, Telephone conversation, Relevancy and
     materiality. Joint Enterprise. Telephone. Imprisonment,
     Inmate telephone calls. Practice, Criminal, Capital case,
     Motion to suppress, Admissions and confessions,
     Voluntariness of statement, Waiver, Confrontation of
     witnesses, Instructions to jury, Request for jury
     instructions.



     Indictments found and returned in the Superior Court
Department on August 6, 2009.

     A pretrial motion to suppress evidence was heard by John T.
Lu, J., and the cases were tried before Kimberly S. Budd, J.


     Gail S. Strassfeld for the defendant.
     Jamie Michael Charles, Assistant District Attorney
(Christopher M. Tarrant, Assistant District Attorney, with him)
for the Commonwealth.
                                                                     2


     SPINA, J.    The defendant, Marquise Brown, was convicted of

murder in the first degree on theories of deliberate

premeditation and extreme atrocity or cruelty.     He also was

convicted of illegally carrying a firearm, illegal possession of

a loaded firearm, and illegal possession of ammunition.     On

appeal the defendant asserts error in (1) the denial of his

motion for a required finding of not guilty as to the theory of

murder by extreme atrocity or cruelty; (2) the denial of his

motion to suppress his statements to police; (3) the admission

in evidence of accusations by police during the interrogations

of the defendant; (4) the admission of a statement of the

codefendant1 under the joint venture exception to the hearsay

rule; (5) the admission of recorded jailhouse telephone calls;

(6) jury instructions on the theory of extreme atrocity or

cruelty; and (7) jury instructions that precluded the jury from

considering the defendant's youth as to various issues.    The

defendant claims that the cumulative effect of the various

errors requires a new trial, pursuant to G. L. c. 278, § 33E.

We affirm the convictions and decline to exercise our powers

under § 33E to reduce the degree of guilt or to order a new

trial.

     1.    Background.   The jury could have found the following

facts.    Other details are reserved for discussion of specific

     1
         Yessling Gonzalez, the codefendant, was tried separately.
                                                                     3


issues.    On the evening of June 19, 2009, the defendant,

Yessling Gonzalez, and the victim, all friends, attended a party

in an apartment complex in Marlborough.    The party ended after a

neighbor complained about the noise.    One of the partygoers,

Melody Downer, invited people, including the defendant and the

victim, to her apartment, which was nearby.    While at Downer's

apartment, the defendant placed his money and marijuana on a

table.    Downer took the money, and Gus Landrum took the

marijuana.   The defendant, however, believed the victim had

stolen the items.    Later that night, at the apartment of another

friend, the defendant accused the victim of stealing his money

and his marijuana.    The two men, both age seventeen at the time,

fought.    The altercation moved through the hallways of two

separate floors of the building, and attracted many onlookers.

The victim got the better of the defendant.    The victim then

left, and the defendant's friends had to restrain the defendant

to keep him from following the victim.    The defendant was angry

and threatened to kill the victim, adding that he "didn't care

if he spent the rest of his life in jail."

    At about 1:30 P.M. the next day, June 20, the defendant and

Gonzalez returned to the Marlborough apartment complex with the

defendant's girl friend and some friends after going to lunch.

Thereafter, the defendant, Gonzalez, and the victim traveled

together in Gonzalez's silver Volvo station wagon to Callahan
                                                                      4


State Park in Framingham.     Surveillance photographs showed the

Volvo and three occupants at 1:41 P.M. heading toward the park.

Two men who had been mountain biking in the park saw the Volvo

enter the parking lot at the park.     They described for police

the three occupants, and a distinctive feature of the Volvo.

Their descriptions generally matched the features and clothing

worn by the defendant, Gonzalez, and the victim.     The defendant,

Gonzalez, and the victim approached the entrance to a trail as

the two mountain bikers left the parking lot.     The three men

appeared friendly toward each other.

       At approximately that time an employee at a nearby farm

heard two or three gunshots.     At 2:01 P.M. the Volvo appeared on

a surveillance recording traveling away from the park with only

two occupants.     Minutes later a hiker discovered the victim's

body on a trail.     A bandana similar to one worn by Gonzalez was

found on the trail between the victim's body and the parking

lot.   The victim sustained two gunshot wounds.   The first was

fired from behind, penetrating the right thigh, scrotum, and

left thigh.   The second and fatal shot entered the front of the

victim's chest and perforated his heart and left lung.     Gunshot

residue on the victim's shirt indicated the second shot was

fired from between three to five feet.     The trajectory of the

second shot, together with abrasions on the victim's right knee,
                                                                     5


suggested the victim was on his knees when the second shot was

fired.   The murder weapon never was recovered.

    In recorded telephone calls from the jail where the

defendant was being held pending trial, the defendant admitted

to his grandmother that he was present during the killing, and

that he knew who did it.    He told his grandmother during a

subsequent call that "the devil was in me . . . [and] told me to

get in [Gonzalez's] car."    In another telephone call the

defendant told his girl friend that Gonzalez was the shooter.

    2.     Extreme atrocity or cruelty.   The defendant asserts

error in the denial of his motion for a required finding of not

guilty as to the theory of murder by extreme atrocity or

cruelty.    In particular, he maintains that the Commonwealth

failed to present evidence from which a jury could conclude that

any of the Cunneen factors had been established.      See

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

on the factor that the killer took pleasure in, or was

indifferent to, the victim's suffering.     Id.   When deciding

whether a judge erred in denying a motion for a required finding

of not guilty, we view the evidence in the light most favorable

to the Commonwealth, and we ask if any rational trier of fact

could have found that the requisite elements of the crime had

been proved beyond a reasonable doubt.    See Commonwealth v.

Latimore, 378 Mass. 671, 676-677 (1979).
                                                                     6


    Notwithstanding the defendant's contention that the medical

examiner could not determine the order of the two gunshots, and

her testimony that a gunshot wound to the chest could have

produced death "instantaneous[ly]," the medical examiner

testified that her "best estimate" was that the victim lived

"minutes" after being shot in the chest.   This was supported by

her testimony that the gunshot wound to the chest caused

approximately three liters of blood to flow into the victim's

chest cavity.   A jury could have inferred that death occurred

minutes after the victim was shot in the chest.

    With respect to the order of the gunshots, a jury could

have found that the first shot passed completely through the

victim's thighs and scrotum while he was standing.     That bullet

traveled at a slightly downward angle, or nearly parallel to the

ground, which could explain why it was never found despite

efforts through the use of a metal detector to locate it.     The

medical examiner testified that the bullet that passed through

the victim's scrotum likely would have been painful.     A jury

also could have found that the victim then fell to his knees,

bruising them, and that the defendant circled around the victim,

looked him in the face, and fired the second bullet at close

range into his chest.

    From this evidence, and from the evidence that the

defendant was angry at the victim for beating him the day
                                                                       7


before, the evidence of the defendant's threats to kill the

victim even if it meant spending the rest of his life in prison,

and the permissible inference that the defendant lured the

victim to the park as a symbol of their restored friendship, the

jury could have found that the defendant took pleasure in, or

was indifferent to, the victim's suffering.      See Commonwealth v.

Anderson, 445 Mass. 195, 202 (2005) (jury could have found

defendant was indifferent to victim's suffering based on

inference that victim was kneeling and terrified by knowledge of

what was coming before defendant shot him in face).     The jury

also could have found that the victim was conscious of his

suffering.   Thus, a jury could have found that the Commonwealth

had established two of the Cunneen factors (only one is needed)

beyond a reasonable doubt.      See Cunneen, 389 Mass. at 227.   See

also Commonwealth v. Linton, 456 Mass. 534, 546 (2010) (one or

more Cunneen factor must be proved).     There was no error in the

denial of the defendant's motion for a required finding of not

guilty.

    3.    Motion to suppress.    The defendant asserts error in the

denial of his motion to suppress statements he made to police on

June 21 and June 23, 2009.   He argues that he was in custody

both times, and the Commonwealth failed to prove beyond a

reasonable doubt that he validly waived his Miranda rights and

that his statements were made voluntarily.      When reviewing the
                                                                      8


denial of a motion to suppress, "[w]e accept the judge's

subsidiary findings absent clear error but conduct an

independent review of his ultimate findings and conclusions of

law."    Commonwealth v. Jiminez, 438 Mass. 213, 218 (2002).    The

defendant's focus is on the involuntariness of the Miranda

waiver and the involuntariness of his statements.   The burden is

on the Commonwealth to establish "beyond a reasonable doubt, in

the totality of the circumstances, that a defendant's [Miranda]

waiver was voluntary, knowing, and intelligent, and that his

statements were voluntary."    Commonwealth v. Auclair, 444 Mass.

348, 353 (2005).   We summarize the facts found by the motion

judge.

    Early in the investigation police learned that the

defendant and the victim had been involved in a fight on

June 19, and that the defendant had accused the victim of

stealing his marijuana and his cash.    Police obtained a video

surveillance recording from the New England Primate Center,

located close to where the victim's body was found.   The

recording showed two vehicles, one, a silver Volvo, traveling to

and from the vicinity of the shooting, before and after the time

that the sound of gunshots had been reported to police.     On June

21, two plainclothes detectives went to the apartment where the

defendant was living.   The defendant answered the door.    He had

a black eye, and explained that he received it in a fight.      The
                                                                      9


detectives asked if they could enter, and the defendant obliged.

There were two other adults, including Gonzalez, and three

children in the apartment.   One of the detectives spoke to the

defendant, who appeared to understand what the detective was

saying.   He did not appear to be under the influence of alcohol

or drugs, and he agreed to go to the police station to speak to

police.   He left with two other police officers who had arrived,

and he did not appear unsteady on his feet or demonstrate any

difficulty walking.

     One of the two detectives who originally arrived at the

apartment remained.   He spoke to Gonzalez, asking for some

identification.   Gonzalez said it was in his vehicle.    When they

went to Gonzalez's vehicle, police noted that it was a Volvo

station wagon.    He gave police some information as to his

whereabouts at the time police believed the shooting took place.

     In the meantime, the defendant was en route to the

Framingham police station in an unmarked police vehicle.      When

they were a few blocks from the police station the defendant

said he had to urinate very badly.    As they pulled up to the

"side of the road" the defendant urinated in his pants.2      The


     2
       The defendant contests this finding, arguing that no
officer testified to this. The judge's finding appears to be
clearly erroneous, as the officer on which this finding was
based testified that this happened as they were "pulling into
the side road that leads to the . . . side entrance [of the
police station]" (emphases added). However, the import of the
                                                                      10


motion judge found that "[h]e urinated in his pants because he

had to urinate very badly, and because he was very upset,

although not visibly so, about being questioned about the

killing of [the victim]."    Once at the station the officers

brought the defendant to a bathroom, where he cleaned himself.

    At approximately 5 P.M. the defendant was brought to an

interview room where he was advised of his right to have the

interview tape recorded.    He declined in writing to have the

interview recorded.   He was advised of the Miranda rights, and

he was told that he could stop the interview at any time.       The

defendant, who had prior experience with the criminal justice

system -- having been previously arrested and prosecuted as a

juvenile -- indicated he understood his rights and that he was

willing to be interviewed.

    The interview lasted approximately one hour.     The defendant

was "outwardly affable and cooperative although in emotional

turmoil:   he was appropriately upset about being questioned

about the killing."   The two police officers who interviewed him

were not armed, having locked up their weapons earlier.     The

defendant took three bathroom breaks and one cigarette break

during the interview.   He denied being present when the victim



judge's finding appears to be unaffected by this minor error.
The uncontroverted testimony suggests that this occurred when
they were very close to the police station, where the officers
thought he could use the bathroom.
                                                                     11


was shot.   He consented to the taking of a buccal swab for

deoxyribonucleic acid analysis.    At the end of the interview he

was driven home, which took approximately fifteen minutes.

    The next day, June 22, two mountain bikers came forward

with information regarding three men in a Volvo station wagon

who entered the park as the bikers were leaving.    This occurred

minutes before the shooting.    One of the bikers described a

strip of body work on the front of the Volvo that did not match

the rest of the vehicle.   A detective drove the men to the

parking lot where Gonzalez's Volvo was parked.    That biker

identified the Volvo as the same one he saw on June 20 at

Callahan State Park.

    On June 23 three officers went to the defendant's apartment

to ask him to go to the police station for questioning.      The

defendant had been sleeping, but answered the door.    He agreed

to go to the police station with them.    They "allowed" the

defendant to change his clothes.    The defendant appeared

cooperative and "more awake."

    Upon arrival at the station, he was taken to a small

interview room where he was advised of his Miranda rights, and

he was told that he could stop the questioning at any time.        The

defendant said he understood his rights, and signed a waiver of

rights form.   He also indicated that he did not want the

interview recorded.    Police spoke to him for about fifteen
                                                                       12


minutes, and told him there were contradictions between his

account and what other witnesses had reported.     The defendant

yelled at police, saying he was "done talking to you guys."         The

interview ended, and a decision was made to arrest the

defendant.   He asked why he had been arrested.    When told that

it was for "murder," he said, "This is bullshit.    How can you

charge me with murder, you don't even have a gun?"    This

occurred between approximately 6:45 and 7 P.M.

    We first address the question of waiver.      The defendant

claims that the interrogations on June 21 and June 23 were

custodial, and that he did not waive his Miranda rights

voluntarily.    The judge concluded that neither interrogation was

custodial.     We need not resolve the question whether the

interrogations were custodial because the judge also found that

the defendant waived his Miranda rights on both occasions.          The

significance of the custodial nature of an interrogation is that

it triggers the necessity to give the Miranda warnings.       See

Commonwealth v. Kirwan, 448 Mass. 304, 309 (2007).     Here, the

warnings were given prior to questioning, and the defendant

voluntarily, knowingly, and intelligently waived his Miranda

rights.   The defendant challenges only the voluntariness of his

waivers, which we now address.

    Relevant factors to consider when deciding if a waiver of

Miranda rights was voluntary include, but are not limited to,
                                                                   13


"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 police), and the

details of the interrogation, including the recitation of

Miranda warnings."   Commonwealth v. Jackson, 432 Mass. 82, 86

(2000), quoting Commonwealth v. Mandile, 397 Mass. 410, 413

(1986), S.C., 403 Mass. 93 (1988).   With respect to the June 21

interrogation, the defendant focuses our attention on his age

(seventeen), the officers' alleged mistreatment of him in

refusing to stop the vehicle to allow him to urinate, and not

asking him if he would like to change his clothes.

    The judge considered the defendant's youth, the fact that

he was upset about being questioned about the killing, and that

he had urinated in the vehicle.   He also considered the fact

that the defendant did not appear to be under the influence of

alcohol or drugs, that he consented to going to the police

station to be interviewed, that he had had some experience with

the criminal justice system as a result of a prior arrest and

prosecution in the Juvenile Court, that he was advised prior to

questioning that he could stop the questioning at any time, that

he appeared affable and cooperative at all relevant times, that

the police officers were unarmed during the interrogation, that
                                                                   14


he requested and received three bathroom breaks and a cigarette

break, that the interview lasted approximately one hour, that

the defendant denied any involvement in the killing, and that

the defendant said he understood his rights and agreed to speak

with police.    Although the defendant argues that the police

mistreated him by not stopping the vehicle to allow him to

urinate, the judge did not find there was mistreatment.3    Rather,

the episode could be seen as an honest misunderstanding as to

how badly the defendant needed to relieve himself --

particularly where the defendant urinated in the police

officers' vehicle.4

     With respect to the June 23 interview, the defendant

focuses our attention on alleged testimony that he tried to

consult with his mother beforehand and that his mother wanted to

be with him.5   Because the defendant was seventeen years old at



     3
       There was testimony that they were less than two blocks
away from the police station when the defendant first said he
had to urinate "really bad."
     4
       There was uncontroverted testimony that the defendant did
not complain of any discomfort at any time during the
interrogation.
     5
       The record indicates that police drove the defendant and
his mother to the police station at the request of the defendant
or his mother. It is not clear who made the request. Police
told the defendant and his mother that they wanted to interview
the defendant alone. There was no further discussion on the
matter.
                                                                    15


the time, the "interested adult rule" was not applicable.6    See

Commonwealth v. Considine, 448 Mass. 295, 297 n.7 (2007), and

cases cited.   The defendant was advised of his Miranda rights.

He acknowledged that he understood them, and he signed a written

waiver after indicating his willingness to speak to police.      The

judge correctly concluded that, in the totality of the

circumstances, the defendant voluntarily waived his Miranda

rights.

     We turn to the question of the voluntariness of the

defendant's statements.   The factors considered when determining

whether a statement was voluntary are the same as those used to

determine whether a waiver of Miranda rights was voluntary, even

though the inquiries are separate and distinct.   See Jackson,

432 Mass. at 85-86.   No single factor is determinative, and a

statement will not be deemed involuntary due to the mere

presence of one or more of the factors.   See Commonwealth v.

Selby, 420 Mass. 656, 664 (1995), S.C., 426 Mass. 168 (1997).

The defendant received, understood, and waived his Miranda

rights on June 21 and June 23 prior to making any statement.

There is no evidence that the police had taken an aggressive

posture during the interrogation on June 21, or that they

     6
       The "interested adult rule" arose in the common law. See
Commonwealth v. A Juvenile, 389 Mass. 128, 134 (1983). We
recently have modified the rule, on a prospective basis, to
include seventeen year old persons. See Commonwealth v. Smith,
471 Mass. 161, 166-167 (2015).
                                                                       16


engaged in any trickery or deceit, or that they offered the

defendant any promise of leniency.    See id.   The interview

lasted approximately one hour, interspersed with three bathroom

breaks and a cigarette break -- not a particularly lengthy

interrogation.   There is no evidence that the defendant's will

was overborne by the questioning.     Id. at 663.   Moreover, the

defendant held up under the circumstances, denying any

involvement in the killing.    See Commonwealth v. Mazariego, 474

Mass. 42, 54 (2016).    We conclude that there was no error in the

determination that the June 21 statement was voluntary.

    The June 23 interrogation was somewhat different.         Police

had interviewed several witnesses between June 21 and June 23.

At this second interrogation they told the defendant that

details in his June 21 statement were inconsistent with details

given by other witnesses, and that they had reason to believe

that he had not been truthful with them about where he had been

and what had occurred on June 20.     The uncontroverted evidence

suggests that it was the defendant, and not the officers, who

assumed an aggressive tone.    He raised his voice and repeatedly

demanded to see the gun, and to know who had contradicted his

account of events.     After fifteen minutes, the defendant

terminated the interview.     There is no indication that any

statement he made was involuntary.
                                                                   17


    Finally, after his arrest the defendant said the murder

charge was "bullshit" because police did not "have a gun."       This

statement was not made in response to police questioning or its

functional equivalent, see Commonwealth v. Torres, 424 Mass.

792, 796-797 (1997), but was a spontaneous statement that did

not require suppression.    See Commonwealth v. Clark, 432 Mass.

1, 15-16 (2000).   There was no error in the denial of the

defendant's motion to suppress evidence.

    4.     Admission of accusations that defendant lied.   The

defendant argues that accusations by police officers during the

interrogation of June 23 that he had lied during the

interrogation of June 21 should not have been admitted where he

denied those accusations.    Where he denied those allegations, he

further contends that officers testified impermissibly about

information they obtained from witnesses and used during the

interrogation of June 23 to bolster their accusations that he

had lied previously on June 21, and such testimony violated his

constitutional rights of confrontation.    The defendant is

correct.    See Commonwealth v. Amran, 471 Mass. 354, 360-361

(2015), and cases cited.    Because there was no objection, we

review under the standard of a substantial likelihood of a

miscarriage of justice.    See Commonwealth v. Wright, 411 Mass.

678, 682 (1992), S.C., 469 Mass. 447 (2014).
                                                                   18


    The "information" police obtained from people they

interviewed in the course of their investigation was not

repeated either during the June 23 interrogation or at trial.

Police merely told the defendant that based on the results of

their investigation they knew he had been at Callahan State Park

with Gonzalez on June 20, 2009.   They confronted him with their

belief, not with the details of what specific people had told

them, or who those people where, and that is what the jury

heard.   At worst, the conclusory assertion that the defendant

and Gonzalez were together at the park at the time of the

shooting was cumulative of other testimony that was admitted

properly.   That other testimony includes the testimony about the

defendant's expressed intent on June 19 to kill the victim; the

testimony of the mountain bikers who roughly described the three

men and the Volvo at the park shortly before the killing; the

surveillance photographs showing the Volvo and three occupants

approaching the park and minutes later showing the Volvo and two

occupants leaving the park; the recorded telephone calls from

the jail in which the defendant admitted to his grandmother that

he was present during the killing, and in which he told his girl

friend that Gonzalez was the shooter; and the statements to

police that implied he knew they did not have the gun used to

kill the victim.   The jury also heard evidence about the alibi

he had first given police during the June 21 interview.     The
                                                                  19


impact of this graphic direct evidence of the defendant's

admissions and his actions far outweigh any prejudice in the

testimony of the police officers.    The rather bland testimony in

question was brief, and we are satisfied that it did not likely

influence the jury's verdict.   See Wright, 411 Mass. at 682.

    5.   Statement of Gonzalez.   Gonzalez did not testify, but a

statement he made to police was admitted in evidence, over

objection, under the joint venture exception to the hearsay

rule.   In that statement Gonzalez said that he, the defendant,

their girl friends, and the mother of one of the girl friends

went to lunch on June 20.   After lunch, Gonzalez said he went to

work, where he stayed until 9 P.M.   In the defendant's

statement, he also said that they went to the restaurant and

that Gonzalez drove them back to the defendant's girl friend's

apartment, where he remained for the rest of the day.     The

defendant argues that Gonzalez's statement falls outside the

joint venture exception to the hearsay rule, and that it was a

testimonial statement barred by the right of confrontation under

the Sixth Amendment to the United States Constitution and art.

12 of the Massachusetts Declaration of Rights.     See Crawford v.

Washington, 541 U.S. 36, 53-54 (2004); Commonwealth v. Gonzalez,

445 Mass. 1, 9 (2005), cert. denied, 548 U.S. 926 (2006).

    We agree that Gonzalez's statement was not admissible under

the joint venture exception to the hearsay rule.    The cases that
                                                                  20


affirm the admission of joint venture hearsay statements after

the commission of the crime generally rest on direct or

circumstantial evidence that the coventurers had planned to

conceal the crime or their involvement in the crime.    One

example of this involves an inference that may arise from the

telling of similar false stories.    See, e.g., Commonwealth v.

Pytou Heang, 458 Mass. 827, 854 (2011); Commonwealth v. Brum,

438 Mass. 103, 116 (2002); Commonwealth v. Silanskas, 433 Mass.

678, 680, 693 (2001).   Here, Gonzalez's account of his doings

between 12:30 and 2 P.M. on June 20 and the defendant's account

of his doings during the same time period were not similar, and

in the absence of some evidence that they specifically concocted

stories of the parting of their ways during that period of time

to conceal their involvement in the crime, there was no basis

for a jury to conclude that their respective alibis were

conceived "in furtherance of" the goal of the joint venture.

Silanskas, supra at 693.   See Mass. G. Evid. § 801(d)(2)(E)

(2016).

    The Commonwealth contends that there is an alternative

theory for the admissibility of Gonzalez's statement.    It argues

persuasively that Gonzalez's statement was not hearsay because

it was not offered for the truth of the matter asserted, but as

a "foundation for later showing, through other admissible

evidence, that [it was] false."     Anderson v. United States, 417
                                                                     21


U.S. 211, 219-220 (1974).    See Pytou Heang, 458 Mass. at 855;

Mass. G. Evid. § 801(c) (2016).     Both Gonzalez's and the

defendant's statements about how they parted ways during the

early afternoon of June 20 could be seen as false in light of

the testimony of the mountain bikers, the video recording of

Gonzalez's Volvo entering and leaving the park at about the time

of the shooting, and the defendant's jailhouse telephone

recordings.    Although Gonzalez's statement was "testimonial"

under Crawford, the confrontation clause "does not bar the use

of testimonial statements for purposes other than establishing

the truth of the matter asserted."       Crawford, 541 U.S. at 59

n.9.    See Pytou Heang, supra at 854-855.

       To the extent that the defendant asserts error in the

admission of Gonzalez's statement as nonhearsay without a

limiting instruction that it could not be used to establish the

truth of the matter asserted, the claim is without merit.       Trial

counsel declined any such instruction, preferring to leave the

matter for closing argument.    The matter is deemed waived.

There is no resulting substantial likelihood of a miscarriage of

justice because both counsel brought out in closing that

Gonzalez had lied, or was a liar.     We conclude that the judge

did not err in admitting Gonzalez's statement.

       6.   Jailhouse telephone calls.   The defendant argues that

the judge failed to evaluate the balance between relevancy and
                                                                     22


prejudice when admitting two of six jailhouse telephone calls in

evidence.    The defendant objected to the evidence.    We review

under the prejudicial error standard.    See Commonwealth v. Rosa,

468 Mass. 231, 239 (2014).    Whether the probative value of

evidence outweighs, or is outweighed by, its potential for

prejudice is a matter committed to the discretion of the trial

judge.    Id. at 242.

    The first call occurred on June 26, three days after the

defendant's arrest, and was between the defendant and his

father.    The defendant can be heard considering his girl friend

as an alibi witness.    The defendant contends that a jury could

be confused by the interplay between this call and the judge's

final instructions placing the burden of proof on the

Commonwealth.    Specifically, the defendant suggests the jury

might have believed that he had a burden to present witnesses

but failed when his girl friend did not testify.       The other call

about which the defendant complains, the sixth telephone call in

the series, was between him and his grandmother.    He contends

the call was too ambiguous to have any probative value, where he

said the "devil was in me, for a little while . . . .      I think

the devil told me to get in the car."

    Although juror confusion is a factor to be considered in

weighing the potential prejudice of proffered evidence, see

Spencer, 465 Mass. 32, 53 (2013), here, the probative value of
                                                                       23


the evidence in this case, in the context of other evidence,

strongly suggested that the defendant had given police a false

alibi and enlisted his girl friend to support his effort.       This

was highly relevant evidence of consciousness of guilt that far

outweighed any potential prejudice.     See Commonwealth v. Mejia,

88 Mass. App. Ct. 227, 237 (2015); Commonwealth v. Mitchell, 20

Mass. App. Ct. 902, 902 (1985).

    The defendant's musing in the sixth call about being

possessed by the devil was highly probative of the issue of his

knowledge, both before and during the shooting, that he was

participating in a criminal act.    This also was relevant as

rebuttal evidence to his claim at trial that, although he was

present during the commission of the crime, he did not go to the

park with any criminal intent and did not participate knowingly

in a joint criminal venture with Gonzalez.

    With respect to the defendant's claim that the judge failed

to weigh the probative value against the potential prejudice of

this evidence, the record belies the claim.    The judge discussed

the matter with counsel and redacted certain portions of the six

telephone calls to eliminate juror confusion or prejudice.

Trial counsel acknowledged that the judge's efforts had met his

concerns.   We are satisfied that the judge properly exercised

her discretion in this regard, and that admission of the

telephone calls was not error.     See Rosa, 468 Mass. at 242.
                                                                  24


    7.   Jury instructions.   The defendant asserts error in two

jury instructions.   The first is the judge's declining to

instruct the jury that they could consider the defendant's youth

on the elements of intent, knowledge, and extreme atrocity or

cruelty, and on the issue of voluntariness of his statements.

The defendant had requested an instruction that would have told

the jury that "there was evidence that [the defendant] was a

juvenile and therefore had less or a diminished capacity than an

adult for making critical judgments."   The requested instruction

directed the jury to find and apply diminished capacity to their

determination of the question of the Commonwealth's burden of

proving knowledge, intent, and the Cunneen factors insofar as

they are elements of the crime of murder.   See Cunneen, 389

Mass. at 227.

    Whether a defendant, because of youth, was incapable of

forming the requisite intent, or possessing the requisite

knowledge, or committing murder with extreme atrocity or

cruelty, is a question of fact.   In Commonwealth v. Okoro, 471

Mass. 51, 65-66 (2015), we said that the trial judge correctly

excluded evidence that it was impossible for a juvenile to

formulate the requisite intent to commit murder.   Here, the

defendant's requested instruction would have gone even further

than what the defendant in Okoro was not allowed to do.     The

proposed instruction in this case essentially directed the jury
                                                                  25


to accept, as a matter of law, that all juveniles lack the

capacity to form the requisite criminal intent to commit murder.

The defendant's requested instruction was not a correct

statement of law, and it was properly rejected.7

     In Okoro, 471 Mass. at 66, we affirmed the trial judge's

ruling that permitted the juvenile defendant to present expert

testimony "regarding the development of adolescent brains and

how this could inform an understanding of this particular

juvenile's capacity for impulse control and reasoned decision-

making on the night of the victim's death" (emphasis added).

Here, there was no comparable factual development of the record,

by expert testimony or other evidence of mental impairment

specific to the defendant at the time of the killing, and there

was no evidence regarding adolescent brain development.   Compare

Commonwealth v. Fitzmeyer, 414 Mass. 540, 549 (1993) (absent

evidence that defendant's medical problems resulted in condition

that diminished his knowledge of what he was doing or impaired

his ability to control his actions, defendant not entitled to

instruction that evidence of his mental impairment at time of


     7
       The defendant's attempt to apply the United States Supreme
Court's holding in Miller v. Alabama, 132 S. Ct. 2455 (2012), is
unavailing. The Court's focus was on the prohibition against
cruel and unusual punishment under the Eighth Amendment to the
United States Constitution as it applied to sentencing and
punishment of juveniles. The Supreme Court did not discuss case
law or statutory law addressing intent, knowledge, or deliberate
premeditation as elements of a crime. Id. at 2464.
                                                                   26


crime should be considered in determining his culpability for

murder in first degree).     Because there was no evidence as to

the defendant's circumstances with respect to neurological

issues and brain development, he was not entitled to the type of

instruction that we approved in Okoro.

     There is no merit to the defendant's argument that the

judge prevented the jury from considering his youth on the issue

of the voluntariness of his statements.      The judge gave a humane

practice instruction in which he told the jury that the

voluntariness of any statement made by the defendant must be

determined from the "totality of the circumstances."     This was a

correct statement of the law.      See Commonwealth v. Cruz, 373

Mass. 676, 688-689 (1977).    Moreover, trial counsel repeatedly

emphasized the defendant's youth during closing argument,

focusing on his being only seventeen years of age no fewer than

six times.   There was no error.

     There also was no error in the judge's instruction that

"police are under no legal obligation to give people seventeen

years or older an opportunity to have a parent accompany him or

her in a police interview."     This was a correct statement of the

law at the time of trial.8    See Commonwealth v. Smith, 471 Mass.


     8
       The Legislature changed the age until which a person will
be treated as a juvenile from seventeen to eighteen, by enacting
St. 2013, c. 84, §§ 7-27, which amended various sections of
G. L. c. 119 (proceedings against delinquent children),
                                                                   27


161, 165-167 (2015).   The instruction did not preclude the jury

from considering the defendant's age when determining whether

his statements were made voluntarily.   As noted above, trial

counsel argued the point forcefully in his closing argument.

    The second assignment of error in the jury instructions

concerns the instruction on the theory of extreme atrocity or

cruelty.   The defendant faults the judge for declining to

instruct the jury that they must be unanimous as to at least one

of the Cunneen factors in order to find the defendant guilty of

murder in the first degree on the theory of extreme atrocity or

cruelty.   See Cunneen, 389 Mass. at 227.   We expressly have

rejected the necessity of such an instruction, see Commonwealth

v. Morganti, 455 Mass. 388, 407 (2009), S.C., 467 Mass. 96

(2014), and the defendant has offered nothing that persuades us

otherwise.   The judge instructed the jury conformably with the

Model Jury Instructions on Homicide (1999), which were

applicable at that time.

    There is no merit to the defendant's assertion that the

trial judge erred by failing to instruct the jury that the

Commonwealth must prove that the defendant intended his actions

to be extremely atrocious or cruel.   The defendant did not

request such an instruction, so our review is limited to a


effective September 18, 2013. The defendant made his statements
in June, 2009. The statutory amendment did not apply to him.
See Commonwealth v. Smith, 471 Mass. 161, 165-167 (2015).
                                                                     28


determination whether any error created a substantial likelihood

of a miscarriage of justice.   See Wright, 411 Mass. at 682.    We

have never said that a defendant must be shown to have had such

an intent.   See Commonwealth v. Akara, 465 Mass. 245, 260

(2013); Commonwealth v. Szlachta, 463 Mass. 37, 47 (2012),

citing Cunneen, 389 Mass. at 227.   In any event, we need not

decide the question, as the defendant also was convicted of

murder in the first degree on the theory of deliberate

premeditation.

     8.   Review under G. L. c. 278, § 33E.9   We have reviewed the

briefs and the entire record and discern no reason to reduce the

degree of guilt or grant a new trial pursuant to our powers

under G. L. c. 278, § 33E.

                                    Judgments affirmed.




     9
       The parties did not brief the question, which we leave for
another day, whether a juvenile convicted of murder in the first
degree is entitled to plenary review under G. L. c. 278, § 33E,
and is subject to the gatekeeper provision of that statute; or
whether such a defendant is not entitled to plenary review but
is entitled to a right of appeal from the denial of all motions
for a new trial. Cf. Commonwealth v. Angiulo, 415 Mass. 502,
507-510 (1993) (unique severity of mandatory life sentence
without possibility of parole for conviction of accessory to
murder in first degree justifies treatment under § 33E even if
crime is not capital offense).
