Commonwealth v. Jose Luis Morales.

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

24-P-332

COMMONWEALTH

vs.

JOSE LUIS MORALES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Jose Luis Morales, appeals from his

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

in the second degree, G. L. c. 265, § 1. We conclude that the

trial judge's instructions on reasonable provocation and

inferring malice from the use of a dangerous weapon were proper

and that the trial judge acted within her discretion in denying

the defendant's motion to reduce the verdict to manslaughter.

Further concluding that the error in the prosecutor's closing

argument did not create a substantial risk of a miscarriage of

justice, we affirm.

1. Background. In July 2016, the victim was driving down

Main Street in Worcester when he was temporarily stopped by a
woman crossing the road in front of his vehicle. As the woman

passed, the victim leaned out of his car window and said, "Hurry

the fuck up, bitch, it's hot out here." The defendant, the

woman's boyfriend, was standing on the sidewalk. The defendant

stepped towards the street, shouted at the victim, and gestured

at him. The victim drove a short distance, parked his vehicle,

and walked in the direction of the defendant.

As the defendant approached, he handed his purse to his

girlfriend and met the victim while holding a knife behind his

back. The defendant and victim then engaged in a brief verbal

exchange. One witness described seeing "[b]ack and forth

motions" and "fighting physically." The video reveals that the

exchange was very brief. At one point during the exchange, the

victim raised his hands with his palms facing up in the air.

The defendant promptly stabbed the victim in the chest.

Immediately after the stabbing, the pair separated and the

victim returned to his car and drove away. After driving a

short distance, the victim parked his vehicle as he was unable

to drive because of his wound. He was subsequently hospitalized

and later died.

The defendant told a police officer that the victim "was

talking shit to my baby mom, like, 'I'm going to shoot you in

the eye,' so I poked him up." At trial, the defendant testified

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that the victim threatened to kill him, and the defendant was

afraid because of this threat. He confirmed that he stabbed the

victim.

After a trial in November 2021, at which the jury was

instructed on self-defense and reasonable provocation, the jury

convicted the defendant of murder in the second degree. This

appeal followed.

2. Jury instructions. a. Reasonable provocation. "When

reviewing jury instructions, we evaluate the instruction as a

whole, looking for the interpretation a reasonable juror would

place on the judge's words." Commonwealth v. Maraj, 105 Mass.

App. Ct. 258, 263 (2025), quoting Commonwealth v. Fan, 490 Mass.

433, 453 (2022). "Trial judges have 'considerable discretion in

framing jury instructions, both in determining the precise

phraseology used and the appropriate degree of elaboration.'"

Commonwealth v. Alden, 93 Mass. App. Ct. 438, 444 (2018), cert.

denied, 587 U.S. 986 (2019), quoting Commonwealth v. Kelly, 470

Mass. 682, 688 (2015). As there was no objection at trial, we

review "to determine whether there was error, and, if so,

whether the errors created a substantial risk of a miscarriage

of justice." Commonwealth v. Belnavis, 104 Mass. App. Ct. 798,

801 (2024), quoting Commonwealth v. Cintron, 103 Mass. App. Ct.

799, 804 (2024).

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As relevant here, the judge's instructions on reasonable

provocation tracked the Supreme Judicial Court's Model Jury

Instructions on Homicide 75-78 (2018). See Commonwealth v.

Howard, 479 Mass. 52, 61 (2018) ("judges should proceed with

caution when deviating from our model jury instructions on

homicide"). Accordingly, the judge instructed, "Mere words, no

matter how insulting or abusive, do not ordinarily by themselves

constitute reasonable provocation." This is a well-established

proposition of law. See, e.g., Commonwealth v. Ronchi, 491

Mass. 284, 292 (2023); Commonwealth v. Garcia, 482 Mass. 408,

411 n.5 (2019); Commonwealth v. Gonzalez, 465 Mass. 672, 686

(2013). It is true, as the defendant argues that threatening

words, accompanied by action (such as an approach) may

constitute reasonable provocation. See Commonwealth v. Howard,

supra ("On the other hand, in certain circumstances, words and

gestures may combine to convey information that would constitute

adequate provocation and would render an unlawful killing

voluntary manslaughter"). But the instruction states that mere

words "ordinarily" do not constitute reasonable provocation "by

themselves." Nothing in the instruction negated the possibility

that words combined with other factors could constitute

reasonable provocation.

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Also following the model instructions, the judge instructed

that "provocation must be such that a reasonable person would

have become incapable of reflection or restraint." This, too,

is an established proposition. See, e.g., Commonwealth v.

Steeves, 490 Mass. 270, 292 (2022); Commonwealth v. Brea, 488

Mass. 150, 156 (2021). The defendant argues that requiring

"absolute incapacity" or "total incapacity" is too high a

standard. Neither the judge nor the model jury instruction used

either phrase, however, but rather hewed to the judicially-

approved "incapable."

The judge also used the phrase "reasonable person" in

instructing the jury that reasonable provocation must "be likely

to produce such a state of passion, anger, fear, fright, or

nervous excitement in a reasonable person as would overwhelm his

capacity for reflection or restraint." Again, the "reasonable

person" test for provocation is well-established. See, e.g.,

Commonwealth v. Gamboa, 490 Mass. 294, 310 (2022); Steeves, 490

Mass. at 291; Commonwealth v. Cash, 101 Mass. App. Ct. 473, 479

(2022).

The defendant argues that, based on cases recognizing the

lateness of adolescent brain development, the "reasonable

person" standard must be modified for a nineteen year old

defendant with a learning disability. The Supreme Judicial

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Court, however, has explained that its "differential treatment

of juvenile offenders . . . has been limited to sentencing and

does not extend to a juvenile's capacity to formulate an intent

to commit murder." Commonwealth v. Chism, 495 Mass. 358, 394-

395 (2025). The court has further "decline[d] . . . to 'except

juveniles generally from application of our usual jury

instructions.'" Id. at 395, quoting Commonwealth v. Odgren, 483

Mass. 41, 48 (2019). Similarly, the Supreme Judicial Court has

rejected the proposition that the "reasonable person" test

should be relaxed for persons suffering from mental impairment.

See Commonwealth v. Benjamin, 430 Mass. 673, 680-681 (2000).

Accordingly, the judge properly instructed the jury on

reasonable provocation using the model instructions.

b. Inference from the use of a dangerous weapon. The

judge instructed, "As a general rule, you are permitted, but not

required to infer that a person who intentionally uses a

dangerous weapon on another person" acts with malice. "Because

the defendant raised a timely objection to the judge's

instruction to the jury, we review his claim for prejudicial

error." Commonwealth v. Allen, 474 Mass. 162, 168 (2016).

"As a general rule, the jury are permitted to infer an

intent to kill from the use of a dangerous weapon."

Commonwealth v. Colas, 486 Mass. 831, 842 (2021). This

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principle is "frequently cited with approval in our cases,

including those where there is evidence of intoxication or

mental impairment on the part of the defendant." Odgren, 483

Mass. at 47, quoting Commonwealth v. Miller, 457 Mass. 69, 74

(2010). "[B]efore instructing on such an inference, the judge

had to determine from the evidence at trial that 'the nature of

the dangerous weapon used and the manner of its use reasonably

supports' the inference." Commonwealth v. Toolan, 490 Mass.

698, 711-712 (2022), quoting Model Jury Instructions on Homicide

92 (2013).1

Here, prior to giving the instruction, the trial judge

heard from both parties and reviewed the model instructions and

the case law before deciding that the inference was permissible.

We discern no error. The jury could find, based on the

testimony and the video evidence, that the defendant took out a

knife, placed it behind his back, walked up to the victim whose

hands were raised, and immediately stabbed him in the chest with

a knife. There is nothing unreasonable about inferring malice

from the use of a dangerous weapon on those facts. See

1 The 2018 Model Jury Instructions on Homicide, those used
in the present case, incorporate the same phrase cited in the
2013 model jury instructions. See Model Jury Instructions on
Homicide 105-106 (2018).

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Commonwealth v. Concepcion, 487 Mass. 77, 79-80, 90, cert.

denied, 142 S. Ct. 408 (2021).

The defendant's repetition of the arguments against this

instruction advanced in Toolan is unavailing, as we are bound by

the Supreme Judicial Court's decision to continue using the

instruction where supported by the evidence. 490 Mass. at 712-

713. As the court pointed out, "the instruction on the

inference that may be drawn does not direct the jury to make

such an inference." Id. at 713. Accordingly, the trial judge

properly gave this instruction.

3. Closing argument. "A prosecutor may not 'misstate the

evidence or refer to facts not in evidence,' and may not play

'on the jury's sympathy or emotions, or comment on the

consequences of a verdict.'" Commonwealth v. Rivera, 482 Mass.

259, 269-270 (2019), quoting Commonwealth v. Carriere, 470 Mass.

1, 19 (2014). "[A] prosecutor may argue zealously in support of

inferences favorable to the Commonwealth's case that reasonably

may be drawn from the evidence." Commonwealth v. Grier, 490

Mass. 455, 472 (2022), quoting Carriere, supra at 22. "Because

the line separating speculation and inference is often a fine

one, 'we must and do recognize that closing argument is

identified as argument.'" Commonwealth v. Mattei, 90 Mass. App.

Ct. 577, 582 (2016), quoting Commonwealth v. Bresilla, 470 Mass.

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422, 437-438 (2015). We review the prosecutor's remarks "in the

context of the entire argument, and in light of the judge's

instruction to the jury, and the evidence at trial."

Commonwealth v. Sanders, 101 Mass. App. Ct. 503, 511 (2022),

quoting Commonwealth v. Braley, 449 Mass. 316, 328 (2007).

"Because the defendant did not object to the portions of the

prosecutor's closing argument he now challenges, we must

determine whether any such errors created a substantial risk of

a miscarriage of justice." Commonwealth v. Ortega, 441 Mass.

170, 180 (2004).

The defendant testified that the victim threatened him

after the victim left his vehicle. Later, when reciting the

defendant's testimony in his closing argument, the prosecutor

incorrectly stated that the defendant "allegedly said [the

victim] was going to kill him; but he couldn't tell you when

[the victim] said this." Immediately after this inaccuracy,

however, the prosecutor continued, "Did [the victim] say he was

going to kill [the defendant] when his arms will raise like

this? If you're going to believe the testimony that [the

victim] said he was going to kill [the defendant], that's the

only point it could have been, because as soon as [the

defendant] approached him, he stabbed him in the heart."

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The prosecutor's error did not create a substantial risk of

a miscarriage of justice. Although the prosecutor initially

misstated the defendant's testimony, he immediately corrected

his mistake by properly citing the testimony and clarifying the

sequence of events supported by the defendant's testimony. See

Sanders, 101 Mass. App. Ct. at 511 (statement clarified by

immediate explanation). Moreover, the brief misstatement

occurred once during the prosecutor's eight page closing

argument and did not garner an objection. Commonwealth v.

Salazar, 481 Mass. 105, 118 (2018) ("a brief, isolated statement

in [a] closing argument . . . was not egregious enough to infect

the whole of the trial"). Finally, the trial judge properly

instructed the jury that closing arguments are not considered

evidence and that their memory controlled. See Commonwealth v.

Hernandez, 473 Mass. 379, 392 (2015) ("The jury are presumed to

follow instructions"). Accordingly, the prosecutor's error did

not create a substantial risk of a miscarriage of justice.

5. Failure to reduce the verdict. "Pursuant to rule

25 (b) (2), a trial judge has the authority to reduce a verdict,

despite the presence of evidence sufficient to support the

jury's original verdict." Commonwealth v. Lyons, 444 Mass. 289,

291 (2005), quoting Commonwealth v. Rolon, 438 Mass. 808, 820

(2003). "This authority is exercised properly 'where the weight

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of the evidence in the case, although technically sufficient to

support the jury's verdict, points to a lesser crime.'"

Commonwealth v. Sanchez, 485 Mass. 491, 504 (2020), quoting

Rolon, supra at 821. "Because rule 25 (b) (2) vests in a judge

the power to undo the work of the jury, this postconviction

authority 'should be exercised only sparingly.'" Commonwealth

v. Pfeiffer, 492 Mass. 440, 446 (2023). "We review a judge's

decision not to reduce a verdict under Mass. R. Crim. P.

25 (b) (2) for abuse of discretion." Commonwealth v. Reavis,

465 Mass. 875, 891 (2013). See Mass. R. Crim. P. 25 (b), as

amended, 420 Mass. 1502 (1995).

Given the evidence at trial, the judge acted within her

discretion in denying the defendant's motion to reduce the

verdict to manslaughter. The defendant met the victim's

approach while wielding a knife and almost immediately stabbed

the victim in the chest. Although it is undisputed that the

victim rudely addressed the defendant's girlfriend, only the

defendant stated that the victim threatened him, and two

witnesses described the victim as holding his hands in the air.

The judge could reasonably conclude that the weight of the

evidence supported the verdict. Cf. Commonwealth v. Chhim, 447

Mass. 370, 381 (2006), quoting Rolon, 438 Mass. at 821 ("where

the weight of the evidence suggests that the defendant did not

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act with malice, a murder verdict may be reduced to

manslaughter").2

Judgment affirmed.

By the Court (Neyman,
Ditkoff & Wood, JJ.3),

Clerk

Entered: March 25, 2025.

2 The judge did not have the benefit of the aid in
sentencing evaluation when she denied the defendant's motion.
We note that the judge at sentencing remarked that the
defendant's age, childhood, and mental health issues were
"important factors . . . to consider." Nothing in our decision
should be taken as preventing the judge from entertaining a new
motion to reduce the verdict based on the helpful information
provided in the evaluation. Of course, we express no view as to
the merits of such a motion.

3 The panelists are listed in order of seniority.

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