Commonwealth v. Hayden Delafuente.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21-P-873

COMMONWEALTH

vs.

HAYDEN DELAFUENTE.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Hayden Delafuente, appeals from his

convictions, after a Superior Court jury trial, of murder in the

second degree, G. L. c. 265, § 1; assault and battery by means

of a dangerous weapon causing serious bodily injury, G. L.

c. 265, § 15A (c) (i); and armed assault with the intent to

kill, G. L. c. 265, § 18 (b). We conclude that the trial judge

acted within his discretion in admitting Marion Wilder's out-of-

court statement for the limited purpose of bolstering the

witness's identification of Wilder. We further conclude that

the record does not contain indisputable facts establishing that

defense counsel's failure to argue for a manslaughter verdict

1 "As is our practice, we spell the defendant's name as it
appears in the indictments." Commonwealth v. Tinsley, 487 Mass.
380, 380 n.1 (2021).
was manifestly unreasonable, and that evidence of the

defendant's statements that the police should not worry about

how he got injured did not create a substantial risk of a

miscarriage of justice. Accordingly, we affirm.

1. Background. On the evening of May 28, 2017, the

defendant and his friends went to the Chit Chat Lounge (Chit

Chat)2 in downtown Haverhill. At approximately 11:52 P.M., the

defendant left the Chit Chat. Approximately ten minutes later,

the defendant returned, this time accompanied by Wilder. When

the defendant tried to reenter the Chit Chat, the bouncer denied

him reentry because he was too intoxicated. Upset, the

defendant spent over seven minutes begging the bouncer to let

him back in. The bouncer refused. In response, the defendant

pulled out a small blue flip knife and flashed it at the

bouncer. The bouncer immediately grabbed the knife and put it

in his back pocket. After hearing the commotion at the door,

the bouncer's boss appeared and instructed the bouncer to return

the knife to the defendant, who was standing in front of them.

The bouncer reluctantly returned the knife, and the defendant

left the Chit Chat, walking east toward the Barking Dog Ale

House (Barking Dog). Within minutes of leaving the Chit Chat,

the defendant spotted two of his friends. He excitedly

2 The Chit Chat was a bar on Washington Street. It is now called
Moonshiners.

2
approached them, reversed the direction he had been traveling

in, and headed toward the Chit Chat with his friends.

That same evening, the victims' friend group, which was

comprised of three couples, had been out drinking to celebrate

one couple's upcoming wedding and another couple's recent

engagement. Around midnight, the group left the Chit Chat and

proceeded to walk down Washington Street to go to another bar.

Shortly thereafter, the group briefly stopped for one member to

smoke a cigarette and another to relieve herself in the alley.

One of the victims, Matthew Sabatino, went to grab a pack of

cigarettes from his car. The other victim, Daniel Doore, leaned

on a traffic cone that had been left out from sidewalk

construction.

While the victims' friend group was waiting outside of the

Barking Dog, the defendant and his two friends walked toward

them. The defendant appeared "very angry" and was talking

loudly and swearing. When the defendant first approached, he

bumped into Doore, who was still leaning on the traffic cone.

Doore glared at the defendant, and the defendant said, "what are

you going to do about it?" Doore responded back with the same

statement. The defendant then struck Doore. Although no one

saw a knife, Doore was stabbed five times before falling to the

3
ground.3 At the time, Doore had possession of a red knife.4 As

the altercation between the defendant and Doore unfolded,

Sabatino began walking back from his car to rejoin his friends.

Immediately after Sabatino reached his fiancée he was fatally

stabbed in the chest.5 No one saw Sabatino or the defendant

holding a knife.

That evening, Francis Wolf was walking to meet up with his

friends when he observed the defendant hit a woman.6 Wolf

approached the defendant, grabbed his shoulder, and punched him

in the face. The defendant fell to the ground and then fled the

scene, walking east on Washington Street. Doore and Sabatino

lay bleeding on the ground.

At approximately 12:30 A.M., in response to a 911 call,

police officers were dispatched to the Barking Dog. When police

cruisers on their way to the scene drove past the defendant, he

removed his white baseball hat and stuffed it inside his black

sweatshirt. Before reaching the Barking Dog, an officer was

flagged down by a man yelling that he had seen a man involved in

the altercation. The man described the defendant's appearance

3 Doore sustained nonfatal stab wounds to his right hand, his
left arm, and his lower right back. Approximately one month
later, Doore developed an aneurysm from the stab wound to his
left arm, which required surgery.
4 Doore, a plumber, testified that he always carried the knife

with him for work.
5 Sabatino died from the stab wound after ten days in a coma.
6 The woman was Doore's fiancée.

4
and indicated that he had gone down Washington Street, toward

the post office. The officer drove in that direction and, upon

seeing that the defendant matched the description, informed the

defendant that the officer needed to speak with him and

instructed him to put his hands on the officer's police cruiser.

The officer pat frisked the defendant and recovered a blue

folding knife from the defendant's front pants pocket.

After the patfrisk, another officer arrived to assist. The

first officer informed the defendant that he was investigating

an incident that had occurred up the street. In response, the

defendant spontaneously stated that he "had been attacked." The

officer asked the defendant what happened, but the defendant did

not elaborate. In speaking with the second officer, the

defendant stated that he was trying to get to his girlfriend's

house and that his ear was injured. When asked how he sustained

the laceration on his ear, the defendant said, "forget it,

nothing, forget it." Because the defendant was injured, the

officers called an ambulance, and the defendant was transported

to the hospital.

When he arrived at the hospital at approximately 1:00 A.M.,

the defendant told the emergency room physician that he "did not

want to be treated . . . and that he was going to leave." After

a brief competency exam, the defendant was found competent, and

he left the hospital. Shortly thereafter, officers observed the

5
defendant walking down the street and asked him whether he was

willing to come back to the police station to speak with them.

The defendant agreed. When he arrived at the police station,

the defendant fell into a deep sleep. Despite several attempts,

officers were unable to rouse him and placed him in protective

custody.7

After the stabbings, police recovered the defendant's white

hat near Merrimack Street.8 The defendant's blood was found on

his hat, his sweatshirt, and his left hand. Sabatino's blood

was found on the blade of the defendant's knife. Doore's blood

was found on the blade of his own knife.

2. Procedural history. The defendant was indicted on

charges of first-degree murder of Sabatino, assault and battery

by means of a dangerous weapon causing serious bodily injury of

Doore, and armed assault with the intent to murder Doore. After

a six-day trial, the jury convicted the defendant of assault and

battery by means of a dangerous weapon causing serious bodily

injury and the lesser-included offenses of second-degree murder

and armed assault with the intent to kill. See Commonwealth v.

Vick, 454 Mass. 418, 428 (2009) ("armed assault with intent to

kill [is] a lesser included offense of armed assault with intent

7 The jury did not hear that, when the defendant eventually woke
up, he invoked his right to counsel.
8 Washington Street becomes Merrimack Street east of the post

office.

6
to murder"). Concluding that, "based on his criminal record, he

is an extremely dangerous person" who "has led a lifetime of

violence," the judge sentenced the defendant to life in prison

with parole eligibility after twenty-five years on the second-

degree murder conviction, with consecutive sentences of five to

seven years on the other charges (which would run concurrent to

each other). See G. L. c. 279, § 24; Crowell v. Massachusetts

Parole Bd., 477 Mass. 106, 115 (2017) ("judges sentencing on

convictions for murder in the second degree now must fix a

minimum term as a parole eligibility date"). This appeal

followed.

3. Admission of Wilder's statement. "Relevant evidence is

admissible as long as the probative value of the evidence is not

substantially outweighed by the danger of unfair prejudice."

Commonwealth v. Reyes, 483 Mass. 65, 74 (2019), quoting

Commonwealth v. Wall, 469 Mass. 652, 661 (2014). Accord Mass.

G. Evid. § 403 (2022) ("court may exclude relevant evidence if

its probative value is substantially outweighed by a danger of

. . . unfair prejudice"). "[I]n balancing the probative value

against the risk of prejudice, the fact that evidence goes to a

central issue in the case tips the balance in favor of

admission." Commonwealth v. Jaime, 433 Mass. 575, 579 (2001).

On appeal, "[w]e review evidentiary decisions of the trial judge

7
for an abuse of discretion." Commonwealth v. Huang, 489 Mass.

162, 172 (2022).

Here, the judge acted within his discretion in admitting

Wilder's out-of-court statement for the limited purpose of

bolstering the witness's identification of the person speaking

on the phone. See Commonwealth v. Bradshaw, 86 Mass. App. Ct.

74, 78 (2014) (no abuse of discretion where "[t]he judge

admitted the statement for a limited purpose"). Over defense

counsel's objection at trial, the judge allowed Doore's fiancée

to testify that she recalled Wilder's appearance because,

immediately after Doore was stabbed, she overheard Wilder on the

phone say, "what the fuck did you guys just do, you got to get

out of here." The judge instructed the jury that they could

consider this testimony "for the limited purpose of [the

witness's] identification of the person who is on the phone and

for no other purpose."9 See Commonwealth v. Botticelli, 51 Mass.

App. Ct. 802, 805 (2001) (judge instructed jury "on the use of

that testimony 'for the limited purpose of identification'").

The defendant challenges the statement as inadmissible

hearsay. See Commonwealth v. Rivera, 83 Mass. App. Ct. 581, 587

9 To the extent the limiting instruction could have been
stronger, there was no objection. See Commonwealth v. Bonds,
445 Mass. 821, 835 (2006) ("the defendant did not ask for such
an instruction, and the instruction given was adequate to
minimize the potential for prejudice").

8
(2013). "The hearsay rule prohibits the admission only of out-

of-court assertions offered to prove the truth of the matter

asserted." Commonwealth v. Kozubal, 488 Mass. 575, 584 (2021),

quoting Commonwealth v. Siny Van Tran, 460 Mass. 535, 550

(2011). The statement here, however, was admitted solely for

the "nonhearsay purpose" of bolstering the witness's

identification of the speaker on the phone. Rivera, supra at

588. See Commonwealth v. Silanskas, 433 Mass. 678, 693 (2001)

(statements made by victim's wife "that [her] husband was alive

and living in a monastery and that he left the area because he

could not find work. . . . clearly were not offered for their

truth"). Where the judge instructed the jury that the statement

was admitted for a limited purpose, "[w]e presume that a jury

understand and follow limiting instructions." Commonwealth v.

Keown, 478 Mass. 232, 243 (2017), quoting Commonwealth v.

Donahue, 430 Mass. 710, 718 (2000).

The defendant also contends that Wilder's statement lacked

probative value and was unfairly prejudicial. The statement was

probative because it tended to exclude Wilder as the stabber by

reinforcing the witness's identification of Wilder as a person

who remained on scene after Doore was stabbed. This was

especially true where defense counsel appeared to pursue a

third-party culprit defense throughout most of trial. "In these

circumstances, the statement's probative value stems from the

9
fact that the statement was made, rather than to prove the facts

asserted within." Commonwealth v. Yat Fung Ng, 491 Mass. 247,

259 (2023). Given that there was no evidence why Wilder was on

the phone or whom he was speaking with, the judge reasonably

concluded that the probative value outweighed any prejudice.

See Commonwealth v. Shruhan, 89 Mass. App. Ct. 320, 324 (2016)

("A fair reading of the testimony does not support a conclusion

that the testimony was unduly prejudicial to the defendant").10

Accordingly, in light of the limiting instruction, admission of

the statement was within the judge's discretion. See

Commonwealth v. Walker, 460 Mass. 590, 613 (2011) (no abuse of

discretion in admitting testimony where "the judge gave forceful

limiting instructions").

4. Ineffective assistance of counsel. We review an

ineffective assistance of counsel claim to determine whether

"(1) the 'behavior of counsel [fell] measurably below that which

might be expected from an ordinary fallible lawyer' and (2) such

failing 'likely deprived the defendant of an otherwise

10Indeed, the testimony that the jury ultimately heard was more
friendly to the defendant than the expected testimony that the
judge ruled on. At sidebar, the Commonwealth represented that
the witness would testify that Wilder said over the phone, "I
know what you did," and that the witness then told Wilder, "you
better not leave, the police are coming, you need to stay, you
know what happened." Defense counsel did not argue below or on
appeal that any discrepancies in the proposed testimony and the
actual testimony should have caused the judge to reconsider his
discretionary decision.

10
available, substantial ground of defence.'" Commonwealth v.

Tavares, 491 Mass. 362, 365 (2023), quoting Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). "If a defendant challenges

the 'tactical or strategic decisions[]' of trial counsel, he

must establish them as 'manifestly unreasonable.'" Commonwealth

v. Shanley, 455 Mass. 752, 768 (2010), quoting Commonwealth v.

Montanez, 410 Mass. 290, 295 (1991).

For the first time on appeal, the defendant claims that

trial counsel's failure to argue for a manslaughter verdict

constituted ineffective assistance of counsel.11 An ineffective

assistance of counsel claim "based solely on the trial record"

is the "'weakest form' because 'it is bereft of any explanation

by trial counsel for his actions and suggestive of strategy

contrived by a defendant viewing the case with hindsight.'"

Commonwealth v. Diaz, 448 Mass. 286, 289 (2007), quoting

Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). "[T]he

preferred method for raising a claim of ineffective assistance

of counsel is through a motion for a new trial." Commonwealth

v. Zinser, 446 Mass. 807, 810 (2006). "Relief may be afforded

on such a claim 'when the factual basis of the claim appears

11The defendant has explicitly reserved his claims concerning
whether trial counsel adequately presented a third-party culprit
defense and whether trial counsel's decision to switch from a
third-party culprit defense to self-defense constituted
ineffective assistance of counsel for a future motion for a new
trial.

11
indisputably on the trial record.'" Commonwealth v. Gorham, 472

Mass. 112, 116 n.4 (2015), quoting Zinser, supra at 811.

On this record, defense counsel's failure to argue for a

manslaughter verdict was not manifestly unreasonable where the

mitigating evidence was scant and the judge instructed the jury

on self-defense, manslaughter based on reasonable provocation,

sudden combat, and excessive force in self-defense.12 See

Commonwealth v. Glover, 459 Mass. 836, 844 (2011) ("it was not

manifestly unreasonable for defense counsel to proceed solely on

a theory of self-defense"). Under the theory of manslaughter by

reasonable provocation, "the provocation must 'come from the

victim' and [crucially, in the instant case] be directed at the

defendant." Commonwealth v. Gamboa, 490 Mass. 294, 310 (2022),

quoting Commonwealth v. Yat Fung Ng, 489 Mass. 242, 258 (2022).

Here, there was no evidence that Sabatino spoke to the defendant

or made any gestures and little evidence that he took any action

aside from walking back to his friends and "c[o]m[ing] right" to

12On appeal, the defendant argues that self-defense was not a
viable defense because there was no evidence that Sabatino
possessed or threatened the defendant with deadly force, and
evidence that the defendant had no reasonable opportunity to
retreat was lacking. The purported absence of either of these
requirements of self-defense negates the defendant's argument
that trial counsel was ineffective for failing to argue
manslaughter based on the use of excessive force in self-
defense. See Commonwealth v. Santos, 454 Mass. 770, 775 (2009)
("The jury cannot reach the question of excessive force in self-
defense unless they decide that the defendant has exercised his
right of self-defense in the first place").

12
his fiancée before he was fatally stabbed. The testimony of

Wolf that he "saw in the distance" that there were "two guys

fighting one guy" was, at best, scant support for a theory of

reasonable provocation. Cf. Commonwealth v. Acevedo, 446 Mass.

435, 444 (2006) (reasonable provocation where victim "looked at

[the defendant], made a fist, and ran toward him. . . . [then]

knocked him down, and beat him"). In this case, "the evidence

supporting objective provocation was weak." Commonwealth v.

Felix, 476 Mass. 750, 758 (2017).

For manslaughter based on sudden combat, the "victim . . .

must attack the defendant or at least strike a blow against the

defendant." Commonwealth v. Howard, 479 Mass. 52, 58 (2018),

quoting Commonwealth v. Espada, 450 Mass. 687, 696-697 (2008).

Given that there was no evidence that Sabatino was armed, Wolf's

vague testimony provided little purchase for a theory of sudden

combat. Cf. Commonwealth v. Rodriquez, 461 Mass. 100, 109

(2011) ("Although the defendant was struck first, it was the

defendant who originally tried to engage the victim in a fight,

first by goading him, then by attempting, unsuccessfully, to

strike the first blow").

Furthermore, if convicted of manslaughter, the defendant

was facing a serious sentence and, "if the jury credited the

defendant's claim of self-defense, he would be acquitted."

Glover, 459 Mass. at 844. See Commonwealth v. Rhodes, 482 Mass.

13
823, 828 (2019) ("In many circumstances, it is not manifestly

unreasonable for a defendant to forgo a possible defense with an

eye toward a possible acquittal"). In the absence of a motion

for a new trial and evidence from the defendant and trial

counsel, we cannot discern whether the defendant requested that

his counsel pursue an all-or-nothing defense. Accordingly, "the

defendant's claim of ineffective assistance is not

indisputable." Commonwealth v. Davis, 481 Mass. 210, 223

(2019).

5. Evidence of the defendant's failure to explain how he

got injured. The defendant argues that it was error to admit

testimony concerning his failure to explain how he got injured

in response to certain questions posed by the police. Because

the defendant failed to object to the testimony at trial, "we

review his claim of error for a substantial risk of a

miscarriage of justice." Commonwealth v. McCoy, 456 Mass. 838,

846 (2010).13

13Invoking Commonwealth v. Mahdi, 388 Mass. 679, 696 (1983), the
defendant argues that errors of this nature are reviewed for
harmless error, even in the absence of an objection. We admit
to some difficulty in understanding Mahdi, a post-Miranda
silence, first-degree murder case which purports to apply both
the harmless error beyond a reasonable doubt standard and the
substantial risk of a miscarriage of justice standard, see id.
at 690, 696, 699. (Technically, the court should have applied
the substantial likelihood of a miscarriage of justice standard,
see Commonwealth v. Roberts, 378 Mass. 116, 123 [1979], but the
Supreme Judicial Court treated substantial risk and substantial
likelihood as interchangeable as late as 1987, see Commonwealth

14
"While the admission of a defendant's prearrest silence may

not violate the due process principles of the United States

Constitution, . . . testimony related to the defendant's silence

in response to police questioning even before Miranda warnings

are given may be inadmissible." Commonwealth v. Beneche, 458

Mass. 61, 73 n.13 (2010). For testimony to be inadmissible, the

defendant must show that he "'manifest[ed] an expressed

unwillingness to continue with the interview' as a whole."

Commonwealth v. Weidman, 485 Mass. 679, 686 (2020), quoting

Commonwealth v. Robidoux, 450 Mass. 144, 161 (2007). "[A]

suspect's unwillingness to answer questions on a particular

topic does not unambiguously indicate that the suspect is

unwilling to continue speaking with police." Commonwealth v.

Santos, 463 Mass. 273, 285 (2012).

Here, there was no substantial risk of a miscarriage of

justice because the defendant did not clearly manifest an intent

v. Waters, 399 Mass. 708, 715 [1987], and did not specifically
state the difference in the application of the two standards
until 1988, see Commonwealth v. Glass, 401 Mass. 799, 807
[1988].) In any event, the Supreme Judicial Court has since
repeatedly cited Mahdi while holding that unobjected-to errors
involving a defendant's right to remain silent are reviewed
under the traditional substantial likelihood of a miscarriage of
justice standard, Commonwealth v. Letkowski, 469 Mass. 603, 617
& n.22 (2014); Commonwealth v. Johnston, 467 Mass. 674, 690-693
(2014); Commonwealth v. Beneche, 458 Mass. 61, 72 (2010), or the
substantial risk of a miscarriage of justice standard,
Commonwealth v. Connolly, 454 Mass. 808, 829 (2009);
Commonwealth v. Brown, 451 Mass. 200, 209 (2008), in direct
appeal first-degree murder cases and other cases, respectively.

15
to remain silent and instead "merely 'refus[ed] to answer

certain questions.'" Weidman, 485 Mass. at 686, quoting

Robidoux, 450 Mass. at 161 n.7. At trial, an officer testified

that, after informing the defendant that he was investigating an

incident that occurred up the street, the defendant

spontaneously stated that he "had been attacked." The officer

then testified that he "asked [the defendant] what happened and

[the defendant] didn't elaborate with [him] any further." In

speaking with a different officer, the defendant stated that he

was trying to get to his girlfriend's house and that he was

injured. The officer testified that when she asked the

defendant about his injury he responded, "forget it, nothing,

forget it." The defendant then continued to talk about his

current girlfriend and prior girlfriends. At no point did the

defendant invoke the right to remain silent or terminate the

conversation. See Robidoux, supra at 161 (defendant's

"willingness to share stories and discuss his guiding principles

was interspersed with refusals to talk about his family. His

unwillingness to answer questions about his family in these

circumstances did not manifest an expressed unwillingness to

continue with the interview"). "Because neither of the

defendant's statements was a clear and unambiguous invocation of

the right to remain silent, the defendant has failed to meet his

burden." Weidman, supra at 687.

16
The defendant also challenges portions of the prosecutor's

opening statement and closing argument that referenced evidence

of the defendant's silence.14 Where the prosecutor intended to

call officers who spoke with the defendant to testify at trial,

she could describe the defendant's selective answers in her

opening statement. See Commonwealth v. DePina, 476 Mass. 614,

627 (2017) (opening statements "may reference anything that [a

prosecutor] reasonably believes in good faith will be proved by

evidence introduced" at trial). Similarly, where defense

counsel repeatedly argued at trial that the defendant was

cooperating with the police, "the prosecutor was entitled to

respond to the defendant's argument by asking the jury to"

consider why the defendant willingly told officers that he was

attacked but then told them to forget about it. Commonwealth v.

Rutherford, 476 Mass. 639, 644 (2017). Moreover, the prosecutor

referenced the defendant's selective responses not to suggest

consciousness of guilt but rather to demonstrate that the

defendant was able to make rational decisions and thus was not

that intoxicated. See Commonwealth v. Diaz, 478 Mass. 481, 487

(2017) ("closing arguments must be limited to the facts in

evidence and the reasonable inferences that may be drawn

14Because the defendant did not object to the prosecutor's
opening statement or closing argument, we review for a
substantial risk of a miscarriage of justice. See Commonwealth
v. Oliveira, 74 Mass. App. Ct. 49, 56 (2009).

17
therefrom"). "In these circumstances, there is no substantial

risk of a miscarriage of justice." Commonwealth v. Miranda, 458

Mass. 100, 117 (2010).

Judgments affirmed.

By the Court (Sullivan,
Sacks & Ditkoff, JJ.15),

Clerk

Entered: April 20, 2023.

15 The panelists are listed in order of seniority.

18