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SJC-11127
                    COMMONWEALTH   vs.   JOONEL GARCIA.



           Essex.      December 6, 2013. - October 29, 2014.

         Present:   Spina, Cordy, Botsford, Duffly, & Lenk, JJ.


Homicide. Home Invasion. Burglary. Armed Assault with Intent
     to Rob. Felony-Murder Rule. Joint Enterprise. Evidence,
     Joint venturer, Impeachment of credibility, Cross-
     examination, Redirect examination, Accident.
     Constitutional Law, Assistance of counsel. Practice,
     Criminal, Required finding, Instructions to jury,
     Assistance of counsel, Capital case. Witness, Impeachment,
     Cross-examination, Redirect examination.


     Indictments found and returned in the Superior Court
Department on March 1, 2006.

     The cases were tried before David A. Lowy, J.


     Jeffrey L. Baler for the defendant.
     Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.


     DUFFLY, J.     The defendant was indicted on charges of murder

in the first degree and five related offenses in connection with

the death of Rafael Castro on August 26, 2004.1       A Superior Court


     1
         The other indictments charged home invasion, G. L. c. 265,
                                                                     2
jury found the defendant guilty of murder in the first degree on

theories of extreme atrocity or cruelty and felony-murder, based

on the underlying felonies of both home invasion and armed or

assaultive burglary.    The jury also found the defendant guilty

of the other charges.    The jury did not specify whether they

found the defendant guilty of any of the offenses as a principal

or as a joint venturer.

    On appeal, the defendant maintains that the evidence was

insufficient to show that he shared the requisite intent to

commit the crimes charged.    The defendant contends also that his

right to a fair trial was denied when he was not permitted to

impeach a Commonwealth witness by confronting her with a child

she observed outside the court room, whom she testified she

believed to be her deceased child, although the witness was

permitted on redirect examination to testify to the reasons she

had formed that belief.    In addition, the defendant asserts that

a new trial is required because the judge erroneously declined

to give two requested jury instructions, and because his counsel

was ineffective for failing to object when the judge instructed

that accident was not a defense to the killing.    The defendant



§ 18C, armed or assaultive burglary, G. L. c. 266, § 14, armed
assault with intent to rob, G. L. c. 265, § 18 (b), and two
counts of kidnapping, G. L. c. 265, § 26, one with respect to
Rafael Castro and one with respect to Norma Cedeno.
                                                                     3
also requests that we exercise our authority to provide relief

pursuant to G. L. c. 278, § 33E.    We affirm the convictions, and

discern no reason to grant a new trial or to reduce the verdict

of murder in the first degree to a lesser degree of guilt.

    Background.   We summarize the facts the jury could have

found, reserving certain facts for later discussion.

    1.   The shooting on August 26, 2004.     Castro, whose street

name was "Calvo," was a drug dealer.    In August, 2004, Castro

lived with Ramona Gonzalez in a sixth-floor apartment in an

apartment building in Lawrence.    At times, Gonzalez also was

involved in drug dealing, as was her daughter, Norma Cedeno, who

lived primarily in the Dominican Republic.    On August 26, 2004,

Gonzalez was in New York.   Castro drove to Logan airport in

Boston to pick up Cedeno, who was to arrive that evening from

the Dominican Republic.    After picking up Cedeno, Castro drove

her back to the apartment building, where they arrived at

approximately 11:15 P.M.    Castro used his key to unlock the

front door to the apartment.   Cedeno entered the darkened

apartment first, putting down some takeout food they had

purchased en route, and heading directly to the bathroom.

Although the apartment lights were off, there was some

illumination from exterior street lighting.    As Cedeno took a

step into the bathroom, a man grabbed her and threw her to the
                                                                     4
floor, holding her down while putting a gun to the back of her

neck and ordering her to look down.    Cedeno cried out, "Oh my

God."

     Earlier that day, the defendant and his girl friend,

Jessica Encarnacion, had been in their apartment when a man

known as "Gringo"2 arrived with two other men, Cesar Santana and

Alfredo Catalino.    Another man, "Propeto," had arrived at the

defendant's apartment separately several hours earlier in the

day, and was there when Gringo and the other two men arrived.3

The four men often socialized together.    Gringo, who was

acquainted with Castro, told the defendant that there was "a job

to do," and that they were going to "take something from Calvo

. . . some drugs that he had" that had been brought from Texas.

If the defendant agreed to help, they would be able to live as

"retirees."    Around 2 P.M., Gringo drove the defendant to

Castro's apartment building and pointed it out to him.    Later

that night, Gringo drove the defendant, Santana, and Catalino to

the apartment building.4    Gringo said that he had learned that


     2
       The defendant rented the apartment from "Gringo," who was
also known by several other names, including Ramon Ortiz, Ramon
Ortiz Peralta, Josue (or Joshua or Joseph) Martinez Vargas, and
Santo Delarosa.
     3
       Although the spelling "Propito" also appears in the
record, we refer to "Propeto" for convenience.
     4
         Propeto did not go with the others to Castro's apartment,
                                                                    5
Castro was not there, and they would wait for Castro to return.

    The four men, two of whom had guns, entered the building

using a pass card Gringo had and then entered Castro's apartment

using a key that Gringo produced.   They waited in the apartment

for approximately thirty minutes before they heard a door

opening.   At that point, Gringo told the defendant, Santana, and

Catalino to go into the bathroom and that he, Gringo, would

remain in the living room.   Castro entered the apartment after

Cedeno, and started to run toward the living room when another

man "jumped" out to meet him.   Castro lunged at the man, and the

man shot Castro in the forehead, seriously injuring him.    The

bullet, which did not penetrate Castro's face, traveled

diagonally downward from the top of his forehead, where the

wound was deepest, over his right eye and cheek, lacerating the

skin.   He was alive, but bleeding profusely.   Some of the men,

including the defendant, took Castro into the smaller of the

apartment's two bedrooms.    The men, whose voices she did not

recognize, told Cedeno that they would kill her if she looked up

because she "was going to know who they were," and put a pillow

case over her head, which remained covered until the men left

the apartment.   Cedeno was taken to the larger bedroom where one


but was watching television with the defendant's girl friend,
Jessica Encarnacion, when the four men returned at approximately
1 A.M.
                                                                         6
of the men remained with her.

       Some of the men wrapped duct tape around Castro's ankles

and wrists,5 and one or more yelled at Castro, demanding drugs

and money.       When Castro denied that he had any drugs, the men

demanded that he make a telephone call.      Castro offered to get

them $20,000 if they cut him loose, but the men laughed at this

offer and refused.       They continued to yell at Castro, and to hit

him.       Cedeno could hear Castro whimpering and groaning in pain,

asking them to remove the tape, and repeatedly asking for water.

At one point, Cedeno was brought into the room with Castro; the

men took off her shirt and threatened to burn her with a hot

iron.       Cedeno "could smell the burn of the iron," and she

implored Castro to tell the men what they wanted to know.        In a

weak voice, Castro said, "Don't do it."       One of the men put

Cedeno's shirt back on and took her back to the other bedroom.

Cedeno could hear the men walking around the apartment making

calls on their cellular telephones, becoming angrier, and saying

things like, "He doesn't want to talk," and, "He doesn't want to

make the phone call.       What are we going to do next?"   One of the

men said they should "[j]ust kill him."

       A man tied Cedeno's ankles with duct tape, but she

       5
       According to expert testimony, the defendant's right thumb
print matched a latent print on a role of duct tape police found
in the apartment.
                                                                    7
persuaded him not to tie her hands.   The man told Cedeno that

three of them were leaving, but that one was going to stay

behind in case she tried to call the police.   In an angry voice,

he told her, "We already know who you are, so if you call the

police, or . . . one of us get[s] caught, we [are] just going to

come back and get you."   He said that he had a blade in his hand

and would cut her face, and that they "all [had] guns."

Approximately ninety minutes had passed since the incident

began.   When the man left, Cedeno heard the door shut, but was

not sure whether any of the other men remained in the apartment.

She waited before calling out to Castro and asking if he was

there alone; in a faint voice, he asked her to open the door and

help him.   Cedeno pulled herself into the kitchen and cut the

duct tape from her ankles with a knife.

    The door to the bedroom in which Castro had been placed was

locked, and Cedeno used part of a bracelet to pick the lock.

Castro was lying on the floor and there was a lot of blood,

particularly on his face.   She removed the duct tape binding

him, and held his hand for a short time to comfort him.    She

tried calling for help on the apartment's telephone, but it had

been pulled from the wall, and the intruders had taken Castro's

cellular telephone.   Cedeno found another telephone and

telephone cord in a drawer, and used it first to call her mother
                                                                      8
and Ricardo Rosa, a former boy friend who lived in the same

building and was a friend of Castro's.     She was afraid to

contact police at that point because she did not know if the men

were waiting to see if she would do so.     After speaking with her

mother and Rosa, Cedeno telephoned 911; an ambulance, dispatched

at 12:53 A.M., arrived three to four minutes later.     Upon

arriving, paramedics saw an "extremely large pool of blood" and

found Castro lying on the bedroom floor.     They determined that

Castro was dead and notified Lawrence police at 1:03 A.M.      The

cause of death was cardiac arrest resulting from loss of blood

from the gunshot wound to the forehead.

    2.     Flight from Massachusetts.   Encarnacion and Propeto

were watching television when the defendant returned to his

apartment at approximately 1 A.M, accompanied by Gringo,

Santana, and Catalino.    The defendant was not wearing the

clothes he had been wearing when he left, but, rather, was

wearing "girl's pants" and a different shirt.     When he took off

that shirt, Encarnacion could see the front of the shirt that

the defendant had been wearing earlier, covered with blood

spatter.    Encarnacion also observed blood spatter on the

defendant's shoes.    When she asked about the blood and the

pants, the defendant said that nothing had happened and not to

worry about it.    He told her:   "Just, [s]hut up.   Get me a bag.
                                                                        9
I need to take these clothes off and put them in a bag.       And

just keep packing.       We have to leave here to [go] out of state."

       Encarnacion gave the defendant a trash bag; he put the

clothes he had been wearing into the bag, and left the apartment

with it.       Gringo, Santana, and Catalino went with him.   They

returned five minutes later, without the bag.6      The defendant was

acting nervous.       In response to Encarnacion's questions, he told

her that he had discarded the bag; when she asked why, he said,

"I'll talk to you when we get out of here."       He then said that

they would have to go to the Dominican Republic because his visa

was expiring.       Less than fifteen minutes later, they left in

Gringo's automobile, headed for John F. Kennedy Airport in New

York.

       During the drive, the defendant took a gun from a bag; it

was gray with a laser light.       Encarnacion had never seen the gun

before.       The defendant said, "Damn, I bought a gun and now I

have to throw it away," then, later, "[s]uch a good gun, and I

have to throw it away."       The men discussed how to get rid of the

gun.       After approximately half an hour, they took an exit off of

the highway and stopped; the defendant and Gringo took the bag

that held the gun and disappeared into the woods.       They were


       6
           Propeto left with the other men, but did not return with
them.
                                                                  10
gone seven minutes while the others waited in the vehicle.     When

the two men returned, the defendant said that they would go to

New York "as soon as possible" and take "the first plane to

[the] Dominican Republic."   No one responded when Encarnacion

asked what had happened.

    At the airport, Gringo gave the defendant $1,000 in cash,

which Encarnacion used to purchase two one-way tickets on a

flight leaving for the Dominican Republic at 7 A.M.    During the

flight, the defendant told Encarnacion that something really bad

had happened, but that he was not going to talk until he had a

chance to calm down and get some rest.    Once they had landed and

had reached the defendant's brother's house, the defendant told

Encarnacion that he had gone to claim some money that someone

owed him for drugs, and that he, Gringo, Santana, and Catalino

waited in the man's apartment until the man arrived.   The

defendant said that he was with Gringo in the bathroom, and

Gringo had the gun because he planned to scare the man into

giving him the money that the man owed.    When the man opened the

bathroom door and turned on the light, he was shocked to see

Gringo with a gun.   The man was trying to take the gun from

Gringo when the gun went off accidentally and shot the man.      The

defendant said that they had not expected the man's daughter,

who had walked into the apartment with the man, to be there.
                                                                   11
The defendant and Catalino tied the man up using duct tape and

told the man that they would make a call for the money, but they

did not get anything and left.

     Encarnacion eventually returned to Lawrence and spoke with

police several times concerning the events of August 26.     The

defendant was arrested after he, too, returned to Lawrence.

While at the Suffolk County house of correction, the defendant

gave an audiorecorded statement to police, in which he admitted

to going to Castro's apartment with the other three men on

August 26, intending to rob Castro, but stated that Gringo had

been the one holding the gun, which the defendant said

discharged accidentally when Castro lunged at Gringo.

     Discussion.   1.   Sufficiency of the evidence.   The

defendant claims that the evidence was insufficient to establish

that he shared the intent required to support his convictions of

murder, home invasion, armed or assaultive burglary, and armed

assault with intent to rob.7   In reviewing a claim of

insufficient evidence, we ask whether, viewing the evidence in

the light most favorable to the Commonwealth, "any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt."   Commonwealth v. Perez, 460

     7
       The defendant conceded at trial that the evidence was
sufficient to support a finding of guilt as to both charges of
kidnapping.
                                                                  12
Mass. 683, 702 (2011), quoting Commonwealth v. Latimore, 378

Mass. 671, 677 (1979).   We take this view of the evidence

notwithstanding any evidence to the contrary presented by the

defendant.   Commonwealth v. Latimore, supra at 676-677.

    In reviewing the sufficiency of the evidence on a theory of

joint venture, we consider whether the evidence supports a

finding that "the defendant knowingly participated in the

commission of the crime charged, alone or with others, with the

intent required for that offense."     Commonwealth v. Norris, 462

Mass. 131, 138-139 (2012), quoting Commonwealth v. Zanetti, 454

Mass. 449, 468 (2009).   "The felony-murder rule 'imposes criminal

liability for homicide on all participants in a certain common

criminal enterprise if a death occurred in the course of that

enterprise.'"   Commonwealth v. Hanright, 466 Mass. 303, 307,

(2013), quoting Commonwealth v. Matchett, 386 Mass. 492, 502

(1982).   To be liable for felony-murder, a defendant need only

possess the intent necessary for the underlying felony.

Commonwealth v. Hanright, supra.     Because the underlying felonies

here of home invasion, G. L. c. 265, § 18C, and armed burglary,

G. L. c. 266, § 14, as well as the separate offense of armed

assault with intent to rob, G. L. c. 265, § 18 (b), require that

the Commonwealth establish that the perpetrator was armed,

"knowledge of a weapon is an element of the Commonwealth's proof
                                                                  13
when a defendant is prosecuted on a theory of joint venture."

Commonwealth v. Britt, 465 Mass. 87, 99 (2013).   See Commonwealth

v. Gorman, 84 Mass. App. Ct. 482, 489 (2013).

    The evidence presented would have allowed the jury to find

that the defendant intended to aid in robbing Castro and that he

knew that at least one of the intruders was armed.   The jury

heard evidence that the defendant agreed to go with Gringo to

take a large quantity of drugs from Castro; that the defendant

went to Castro's apartment with Gringo to become familiar with it

and then returned at a time when they had information that Castro

would not be present; that at least two of the men were armed

when they entered the apartment; that upon hearing Castro

unlocking the door, some of the men secreted themselves in the

bathroom; that one of the men wanted to use a gun to scare Castro

into giving them money, and shot Castro soon after Castro entered

the apartment; and that one of the guns wielded belonged to the

defendant who was in possession of it shortly after the men left

the apartment.   This evidence sufficed to show that the defendant

had the requisite intent to commit home invasion, armed burglary,

and armed assault with intent to rob.

    The defendant's actions after the men left Castro's

apartment provided additional evidence of an intent to

participate in a joint venture to commit the crimes charged.     The
                                                                   14
four men returned together to the defendant's apartment, where

they discarded his bloodied clothing, and planned and executed a

further escape.   See Commonwealth v. Akara, 465 Mass. 245, 255

(2013), and cases cited (defendant seen holding gun and standing

near coventurer immediately before shooting, and fleeing while

laughing with coventurers immediately after shooting);

Commonwealth v. Williams, 422 Mass. 111, 121 (1996) ("Joint

venture may be proved by circumstantial evidence, including

evidence of flight together").   Hence, viewing the evidence in

the light most favorable to the Commonwealth, the jury heard

sufficient evidence to conclude beyond a reasonable doubt that

the defendant was guilty of armed home invasion and armed

burglary and, consequently, of felony-murder, as well as of

assault with intent to rob.   See Commonwealth v. Pytou Heang, 458

Mass. 827, 836 (2011).

    There was also sufficient evidence from which the jury could

have concluded that the defendant possessed the requisite intent

to commit murder in the first degree on a theory of extreme

atrocity or cruelty.   The mental intent necessary to support such

a conviction is malice.   Commonwealth v. Szlachta, 463 Mass. 37,

47 (2012), quoting Commonwealth v. Cunneen, 389 Mass. 216, 227

(1983).   "Malice is defined in these circumstances as an intent

to cause death, to cause grievous bodily harm, or to do an act
                                                                15
which, in the circumstances known to the defendant, a reasonable

person would have known created a plain and strong likelihood

that death would follow."   Commonwealth v. Szlachta, supra at 45-

46, quoting Commonwealth v. Chhim, 447 Mass. 370, 377 (2006).

     Here, the Commonwealth introduced evidence that, while

Castro was bleeding profusely following the shooting, the

defendant and the other intruders bound and repeatedly struck him

as he moaned in pain and asked for water.   See Commonwealth v.

Semedo, 422 Mass. 716, 720 (1996), citing Commonwealth v.

Mahoney, 406 Mass. 843, 848 (1990) (sufficient evidence of malice

based on plain and strong likelihood of death, where reasonable

person would have known that victim could suffer death as beating

progressed); Commonwealth v. Plunkett, 422 Mass. 634, 637 (1996)

(evidence would have sufficed to show malice based on plain and

strong likelihood of death where defendant bound and gagged

victim, resulting in victim's death).   Castro's voice became weak

during the time the intruders were in the apartment, while they

were musing aloud on whether they should kill him; the defendant

himself described Castro as barely alive by the time he and the

other men left.   Furthermore, before departing, the intruders

locked the door to the bedroom where Castro was restrained at

both his hands and his feet, pulled the apartment telephone cord

from the wall, took Castro's cellular telephone, warned Cedeno
                                                                    16
not to call for help, and left her in another room with her

ankles bound.   The jury could have found that a reasonable person

would have known that all of these actions impeded Castro's

ability, while bleeding heavily, to obtain emergency assistance,

and that there was a plain and strong likelihood that death would

follow.   See Commonwealth v. Auclair, 444 Mass. 348, 363-364

(2005); Commonwealth v. Maynard, 436 Mass. 558, 562-563 & n.4

(2002); Commonwealth v. Perry, 432 Mass. 214, 218, 221-224

(2000).

     2.   Impeachment of Commonwealth's witness.   In addition to

challenging the sufficiency of the evidence, the defendant

contends that he was denied his right to a fair trial because he

was not permitted to impeach Encarnacion by confronting her with

a child whom she had observed outside the court room and believed

to be her deceased daughter.   On direct examination, Encarnacion

testified that she became pregnant with the defendant's child

while they were in the Dominican Republic, after their arrival on

August 27, 2004.   She returned to the United States in February

or March of 2005, and ended her relationship with the defendant

that June.   Encarnacion gave birth to her daughter on August 22,

2005.8


     8
       Encarnacion subsequently testified that she agreed to
surrender the child to the defendant's mother in the Dominican
Republic because of Encarnacion's then drug problems and unstable
                                                                     17
    Toward the end of Encarnacion's direct examination, the

prosecutor questioned her about statements she made to police

soon after returning to Lawrence.    Encarnacion testified that she

had lied at that time, in particular regarding her knowledge of

the gun and its disposal, and her trip to the airport in New York

with the defendant in August, 2004.    She testified that she had

been afraid, that she believed she could go to jail because she

knew something about a murder, and that she had been depressed,

but that she had since been seeing a therapist and taking

medication.   Encarnacion said that she was in court because she

wanted to be honest and tell the truth and she no longer wanted

to put herself in the "middle of anything."

    On cross-examination, defense counsel elicited testimony

that Encarnacion had sworn to tell the truth when she appeared

before the grand jury, but that she had lied in testifying that,

when the defendant came back to their apartment with blood on his

clothes, he was crying and saying things such as, "I can't

believe Gringo made me do this."    Encarnacion insisted that

although she had lied out of fear for her life, she was being

honest in her trial testimony.     "At that point, I was trying to


living circumstances. Sometime roughly in December, 2006, after
Encarnacion had begun speaking to police and the defendant had
been charged in this case, the defendant's mother and brother
told Encarnacion that her daughter had died. Encarnacion neither
sought nor received confirmation of her daughter's death.
                                                                  18
defend him, but now I'm not defending nobody. . . .    I have three

kids.   I have two living with me.   One, his mother took away,

which I'm going to fight back.    And I am not here to put him

down.   Because if I really wanted to put him down, I would have

just came to the police and made up another story saying maybe he

shot the guy; don't you think?"

    At that point, defense counsel asked, "You just told the

jury that [the defendant's] mom -– who's out in the hall,

right? -- has your daughter, [a]nd you're now going to fight to

get your daughter."    Encarnacion responded:

    "Because she told me my daughter was dead for three years.
    She adopted my daughter, and made me believe my daughter was
    dead for three years. And she brings her today, to this
    court, to make me look nervous and make me look stupid and
    maybe put myself in the middle for this: okay. I'm very
    nervous right now. My daughter is alive. She made me
    believe for three single years. I ended up in a psychology
    center, cutting myself, going crazy, thinking my daughter is
    dead. And all of a sudden, she's here today? That's not
    fair. That's not fair."

See note 8, supra.    Defense counsel also asked whether

Encarnacion had attempted suicide because the defendant's mother

had custody of her daughter, to which Encarnacion replied, "No.

Because she made me believe my daughter was dead."

    After a brief recess, defense counsel questioned Encarnacion

regarding her perceptions of the child in the hallway whom she

believed to be her daughter.   He elicited testimony that

Encarnacion's daughter would have been a little over three years
                                                                   19
old, and then sought to present the child, whom defense counsel

described as fifteen months old, to the jury, in order to show

that the child could not rationally have been mistaken for a

three year old.     The judge denied as collateral and unduly

prejudicial the request to present the child for Encarnacion to

identify and for the jury to see.     He noted that the information

could be introduced through other means, such as testimony by

other witnesses.9

     The defendant contends that the judge impeded his ability to

cross-examine Encarnacion by denying his request to present the

child in court and by allowing the Commonwealth to rehabilitate

Encarnacion on redirect examination with details regarding the

circumstances in which she saw the child.     The Massachusetts and

Federal Constitutions guarantee a defendant's right to cross-

examine prosecution witnesses.     See Commonwealth v. Meas, 467

Mass. 434, 449 (2014), quoting Commonwealth v. Allison, 434 Mass.

670, 681 (2001); Commonwealth v. Mercado, 456 Mass. 198, 202 &

n.9 (2010).   "Nevertheless, a judge may limit the scope of cross-

examination as long as he or she does not completely bar inquiry


     9
       At side bar, counsel described Encarnacion as having gone
off "on this tirade that I think is irrational, and shows she's
psychotic." The judge inquired of both attorneys if they thought
the witness was "too distraught to testify" further that day, and
the prosecutor agreed that she was. Encarnacion's testimony
resumed the following day.
                                                                   20
into a relevant subject."   Commonwealth v. Williams, 456 Mass.

857, 873 (2010).   A judge has broad discretion in circumscribing

the proper scope of cross-examination, Commonwealth v. Mercado,

supra at 203; Commonwealth v. Vardinski, 438 Mass. 444, 451

(2003), and may impose such limits "based on concerns about,

among other things, harassment, prejudice, confusion of the

issues, the witness's safety, or interrogation that is repetitive

or only marginally relevant."   Commonwealth v. Johnson, 431 Mass.

535, 540 (2000), quoting Delaware v. Van Arsdall, 475 U.S. 673,

679 (1986).   See Commonwealth v. Avalos, 454 Mass. 1, 7 (2009),

and cases cited.   To determine whether a judge acted beyond this

discretion, "we weigh the materiality of the witness's direct

testimony and the degree of the restriction on cross-

examination."   Commonwealth v. Mercado, supra, quoting

Commonwealth v. Vardinski, supra.   The defendant bears the burden

of proving that the judge acted improperly.   See Commonwealth v.

Avalos, supra, quoting Commonwealth v. Weichel, 403 Mass. 103,

105 (1988).

    We conclude that the judge did not abuse his discretion in

prohibiting the defendant from presenting the child for

Encarnacion to identify and for the jury to see.   Notwithstanding

the materiality of Encarnacion's testimony in corroborating the

defendant's participation in the killing, the judge did not "bar
                                                                     21
all inquiry into the subject" of her mental state.   See

Commonwealth v. Avalos, supra at 7, quoting Commonwealth v.

Allison, supra at 681.   Defense counsel elicited testimony that

Encarnacion had struggled in the past with mental health issues,

that no one had told her that the child she saw was her daughter,

that her only reason for believing the child to be her daughter

was that she saw from afar the defendant's mother holding the

child, and that she made no attempt to verify the child's

identity at that time.   Furthermore, although he would not allow

the child to be brought into the court room, "[t]he trial judge

provided counsel an opportunity" to present other evidence of the

child's age and physical appearance, which counsel ultimately

decided not to do.   See Commonwealth v. Williams, 456 Mass. at

873.   The judge had discretion to limit the manner in which

counsel could offer evidence of the child's apparent age.      Cf.

Commonwealth v. Mercado, supra at 203-204 (judge could limit

defense counsel's use of "inflammatory" photographs on cross-

examination where counsel thoroughly cross-examined witness

regarding point in question).   In particular, the judge noted his

concern that presenting the child in the court room would cause

Encarnacion unnecessary distress.   Cf. Commonwealth v. Johnson,

431 Mass. at 540, quoting Alford v. United States, 282 U.S. 687,

694 (1931) (judge should "protect [a witness] from questions
                                                                22
which go beyond the bounds of proper cross-examination merely to

harass, annoy or humiliate").

     The defendant contends also that Encarnacion's testimony on

redirect examination was overly broad and unduly prejudicial

because it suggested that the defendant and his mother had acted

intentionally to provoke Encarnacion's response to the child.

"The purpose of redirect examination is to explain or rebut

adverse testimony or inferences developed during cross-

examination."   Commonwealth v. Borgos, 464 Mass. 23, 35 (2012),

quoting Commonwealth v. Hoffer, 375 Mass. 369, 375 (1978).     As

with cross-examination, a trial judge has considerable discretion

over the scope of redirect examination.   See Commonwealth v.

Rosario, 460 Mass. 181, 193 (2011); Commonwealth v. Ostrander,

441 Mass. 344, 356, cert. denied, 543 U.S. 867 (2004).    A

defendant who asserts an abuse of this discretion on appeal

"assumes a heavy burden."   Commonwealth v. Arriaga, 438 Mass.

556, 577 (2003), quoting Commonwealth v. Maltais, 387 Mass. 79,

92 (1982).   See Commonwealth v. Ostrander, supra at 356-357,

quoting Commonwealth v. Roberts, 433 Mass. 45, 51 (2000) (judge

has "nearly unreversible discretion" with respect to redirect

examination).

     The judge in this case carefully limited the scope of

redirect examination.   The defendant's challenge to Encarnacion's
                                                                   23
credibility, based on her belief that the child she saw in the

court house was her daughter, opened the door for the

Commonwealth to rehabilitate Encarnacion by allowing her to

explain the circumstances that led her to form this belief.    See

Commonwealth v. Arriaga, 438 Mass. at 577; Commonwealth v.

Marrero, 427 Mass. 65, 69 (1998); Commonwealth v. Olszewski, 416

Mass. 707, 718 (1993), cert. denied, 513 U.S. 835 (1994).     In

particular, the judge permitted Encarnacion to testify that the

defendant's mother had informed her of her daughter's death in

the course of berating and threatening her for cooperating with

police; that she never received confirmation of her daughter's

death, such as a death certificate or photographs from the

funeral; that she saw the defendant's mother holding a baby girl

in the court house hallway; and that the child resembled her

daughter.   "Having opened the door to this information, . . . the

defendant's claim of prejudice is highly suspect."   Commonwealth

v. Marrero, supra, quoting Commonwealth v. Otsuki, 411 Mass. 218,

236 (1991).

    At the same time, the judge minimized the prejudicial impact

of the testimony by preventing the prosecutor from suggesting

that the defendant or his mother intentionally arranged

Encarnacion's encounters with the child in order to provoke her
                                                                  24
         10
reaction.      He sua sponte cut-off Encarnacion's testimony when it

appeared that she would begin testifying about the motive of the

defendant's mother.    Likewise, when Encarnacion testified that

she thought the defendant's mother was attempting to "intimidate"

her, the judge asked defense counsel if he would like to have

that comment stricken.    Defense counsel declined, apparently

based on his strategic assessment that Encarnacion's testimony

sounded irrational and only harmed her credibility; at sidebar,

defense counsel suggested that the longer Encarnacion testified

about the child, the more irrational she appeared.    Finally, the

judge repeatedly offered to issue a limiting instruction, which

defense counsel declined, that Encarnacion's testimony on

redirect examination was to be used only to evaluate her

credibility.    See Commonwealth v. Stone, 70 Mass. App. Ct. 800,

807 (2007) ("The trial judge's offer to give a jury instruction

to emphasize the limited relevance of [the witness's] testimony

shows the extent to which he analyzed the prejudicial effect

versus the probative value before deciding in favor of

admissibility").

    10
       The judge expressed concern that the defendant might be
unduly prejudiced if the jury were to conclude that the defendant
or his family had devised the plan to bring the child into the
court house and display her to Encarnacion in order to unhinge
her, and, on that basis, further conclude that the defendant had
done so because he was guilty of the charged offenses and needed
to impeach the person to whom he had confessed.
                                                               25
    The defendant argues that presenting alternative evidence of

the child's appearance or requesting a limiting instruction would

have exacerbated the prejudice to him by drawing greater

attention to his possible role in a scheme to manipulate

Encarnacion.    Defense counsel was free to make such a tactical

assessment, but we presume that the jury would have heeded any

limiting instruction.    See Commonwealth v. Roberts, 433 Mass. 45,

52-53 (2000).    There was no abuse of discretion in the manner in

which the judge limited the scope of Encarnacion's cross-

examination and her redirect examination.

    3.   Failure to instruct on second-degree felony-murder based

on uncharged offense.    The defendant argues that it was error to

decline to give an instruction on felony-murder in the second

degree based on the uncharged offense of distribution of cocaine.

Whereas felony-murder in the first degree is predicated on a

felony that is punishable by a sentence of life in prison,

felony-murder in the second degree is predicated on a felony with

a maximum sentence of less than life in prison.    See Commonwealth

v. Burton, 450 Mass. 55, 57 (2007).    To support a conviction of

felony-murder in the second degree, there must be a homicide that

occurs during the commission or attempted commission of a felony;

the homicide must be a "natural and probable consequence" of the

predicate felony, see Commonwealth v. Stokes, 460 Mass. 311, 315
                                                                    26
(2011); and the felony must be either "inherently dangerous" or

"committed so that the circumstances demonstrate 'the defendant's

conscious disregard of the risk to human life.'"    Commonwealth v.

Burton, supra, quoting Commonwealth v. Matchett, 386 Mass. 492,

508 (1982).     A defendant is entitled to an instruction on felony-

murder in the second degree only if there is a rational basis in

the evidence to support such a conviction.    See Commonwealth v.

Bell, 460 Mass. 294, 306-307 (2011).    "[T]he felony on which a

charge of felony-murder is premised may be uncharged, so long as

the evidence supports it."     Commonwealth v. Stokes, supra.

    The defendant requested an instruction on felony-murder in

the second degree predicated on the uncharged offense of "drug

distribution."    The judge denied the request on the ground that

the evidence did not provide a rational basis for conviction of

that offense.    The predicate felony of "drug distribution,"

whether understood as distribution of a controlled substance or

as possession with intent to distribute a controlled substance,

requires proof of possession.    See G. L. c. 94C, §§ 32A, 32B,

32C, 32D, 32E.    The only evidence supporting the defendant's

theory of "drug distribution" was that the defendant, the joint

venturers, and the victims all were drug dealers, and the

defendant's statement that he went to the apartment to collect

"like a debt" from Castro in the form of drugs that he believed

Castro had "brought . . . from Texas."    There was no evidence
                                                                  27
that controlled substances were present in the apartment, or that

any of the intruders came into possession of the drugs the

defendant alleges they were there to collect.   In the absence of

evidence supporting possession or constructive possession of a

controlled substance, the jury could not permissibly have found

that the defendant committed the felony of distribution of a

controlled substance or possession with intent to distribute a

controlled substance.   Therefore, there was no error in the

denial of the defendant's request for an instruction on murder in

the second degree predicated on such offenses.11

     4.   Instruction on intervening cause.   The defendant

maintains also that the judge erred in declining to give a

requested instruction on intervening cause, arguing that the

evidence warranted a finding that Castro's death was caused by

Cedeno's intentional delay in contacting emergency personnel.12



     11
       In his reply brief, the defendant suggests that the
evidence sufficed to show attempted distribution of a controlled
substance. We need not address the merits of this argument
because the defendant was not charged with this offense and did
not request an instruction on the basis of this offense. See
Commonwealth v. Stokes, 460 Mass. 311, 315 (2011). Moreover,
even had there been error, there would have been no prejudice to
the defendant in declining to give such an instruction where, as
here, the defendant "was also convicted under the alternate
theor[y] of . . . extreme atrocity or cruelty." See Commonwealth
v. Brum, 438 Mass. 103, 119 n.23 (2002).
     12
       This claim hinges in part on the defendant's argument
"that Cedeno had a motive to allow Castro to bleed to death by
delaying the 911 call in order to advance in the drug
organization." The evidence does not support such an inference.
                                                                  28
This argument is unavailing.   If "death follows as a consequence

of [an individual's] felonious and wicked act, it does not alter

its nature or diminish its criminality to prove that other causes

cooperated in producing the fatal result."   Commonwealth v.

McLeod, 394 Mass. 727, 744-745, cert. denied sub nom. Aiello v.

Massachusetts, 474 U.S. 919 (1985), quoting Commonwealth v.

Hackett, 2 Allen 136, 142 (1861).   See Commonwealth v. Davis, 403

Mass. 575, 582 (1988).   "The general rule is that the intervening

conduct of a third party will relieve a defendant of culpability

only if such an intervening response was not reasonably

foreseeable."   Commonwealth v. Rosado, 434 Mass. 197, 203, cert.

denied, 534 U.S. 963 (2001), quoting Commonwealth v. Niemic, 427

Mass. 718, 727 (1998).   Although "the judge was required to

instruct the jury on any issues which could be inferred from the

evidence," Commonwealth v. McLeod, supra at 745, he was not

required to give a requested instruction unless competent

evidence proffered by the defendant, viewed in a light favorable

to him, reasonably supported such an inference.

    The defendant points to evidence that, viewed favorably to

him, he contends would support a reasonable inference that Cedeno

delayed at least several minutes before calling 911 and

requesting emergency medical assistance:   she first made

telephone calls attempting to reach her mother and her former boy
                                                                      29
friend who lived in the same apartment building as Castro.13     It

was reasonably foreseeable, however, that there would be a delay

before emergency medical assistance would reach Castro.     At most,

the effect of Cedeno's delay "was merely to prevent any recovery

that might otherwise have taken place."    Commonwealth v. Costley,

118 Mass. 1, 27 (1875).   It was not an intervening cause that

then became the proximate cause of Castro's death.   Because the

evidence does not support the defendant's theory of an

intervening cause, the judge did not err in refusing to grant the

requested instruction.    See Commonwealth v. McLeod, 394 Mass. at

744-745.

     5.    Instruction that there was no evidence of accident.    The

defendant contends that the judge provided an erroneous

instruction in connection with the charge of murder in the first

degree based on the theory of extreme atrocity or cruelty, and

that his counsel was ineffective for failing to object to the

instruction.   Because the defendant did not object, we review to

determine whether any error created a substantial likelihood of a

miscarriage of justice.   See Commonwealth v. Jewett, 442 Mass.

356, 370 (2004).   Likewise, when "the defendant has been



     13
       Viewing the evidence favorably to the defendant, Castro
was still alive when the men left the apartment. In his
statement to police, the defendant described Castro's condition
as "kind of alive," and said, "Calvo was still sort of alive"
when they left.
                                                                  30
convicted of murder in the first degree, 'we consider his claim

of ineffectiveness of counsel to determine whether there exists a

substantial likelihood of a miscarriage of justice . . . which is

more favorable to a defendant than the constitutional standard

for determining ineffectiveness of counsel.'"   Commonwealth v.

Franklin, 465 Mass. 895, 909 (2013), quoting Commonwealth v.

Walker, 460 Mass. 590, 598 (2011).   We conclude that there was no

error.

    As to the first element of murder in the first degree on a

theory of extreme atrocity or cruelty, the judge instructed:

    "[T]he Commonwealth must prove to you beyond a reasonable
    doubt . . . that the defendant committed an unlawful
    killing. For a killing to be murder, it must be unlawful.
    An unlawful killing is a killing done without excuse. Not
    all killings are unlawful. A killing may be excused, for
    example, in cases of self-defense, defense of another, or in
    some cases, accident. The evidence in this case does not
    raise the issue of whether the killing was excused as a
    result of self-defense, defense of another, or accident."

The defendant argues that the last sentence of this instruction

prevented the jury from considering accident to mitigate malice.

However, a "judge's comment to the jury regarding the absence of

accident [is] not an invasion of their fact-finding function"

unless the issue of accident is "fairly raised" by the evidence.

See Commonwealth v. Podkowka, 445 Mass. 692, 698-699 (2006).

    In support of his argument that the killing occurred

accidentally, the defendant focuses exclusively on evidence

related to the shooting itself.   As the judge instructed,
                                                                    31
however, "As to the charge of murder, the Commonwealth does not

allege that the shooting of Raphael Castro, in and of itself, was

the act that constitutes the killing.   Rather, the Commonwealth

alleges that the shooting, along with the acts allegedly taken

thereafter, caused Mr. Castro's death."   We presume that the jury

followed this instruction, see, e.g., Commonwealth v. Morales,

461 Mass. 765, 784 (2012), and therefore that they relied on the

evidence introduced regarding the intruders' conduct after the

shooting.   This evidence included that the intruders bound Castro

with duct tape, repeatedly struck him, and left him in a locked

room without a telephone, while he bled profusely.    Evidence of

such conduct suffices to prove malice, even if the defendant did

not intend Castro's death, see Commonwealth v. Plunkett, 422

Mass. 634, 637 (1996), and there is no suggestion that any of

this conduct was accidental.   Hence, because the jury were not

called upon to decide whether the shooting itself was accidental,

the issue of accident was not fairly raised and the judge's

instructions were not erroneous.

    6.   Relief pursuant to G. L. c. 278, § 33E.     Having

carefully reviewed the entire record pursuant to our duty under

G. L. c. 278, § 33E, we discern no reason to reduce the verdict

of murder in the first degree or to order a new trial.

                                    Judgments affirmed.
