Commonwealth v. Michael Brawner.

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

23-P-1092

COMMONWEALTH

vs.

MICHAEL BRAWNER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2017, the defendant was indicted for murder in the first

degree (count one), illegal possession of a firearm (count two),

and unlawful possession of ammunition (counts three and four).

A jury found him not guilty of murder in the first degree but

guilty of the lesser included offense of murder in the second

degree. The jury also convicted him of illegal firearm

possession, and both counts of unlawful possession of

ammunition. 1 The defendant appeals from his convictions and from

1A fifth count, trafficking in thirty-six grams or more of
cocaine, was severed from the other charges. After the
defendant's motion to reduce his conviction of murder in the
second degree was denied, the defendant entered an Alford plea
to so much of count five as charged trafficking in eighteen
grams or more of cocaine. See North Carolina v. Alford, 400
U.S. 25 (1970).
the judge's denial of his motion for a new trial or to reduce

the jury's verdict from murder in the second degree to voluntary

manslaughter. We affirm the defendant's conviction for second-

degree murder and the denial of his motion for a new trial or to

reduce the verdict. We vacate the defendant's firearm and

ammunition convictions and remand for further proceedings

consistent with this memorandum and order.

Background. In light of the defendant's challenge to the

sufficiency of the Commonwealth's evidence to disprove

mitigating circumstances as to the murder conviction, we recite

the facts in the "light most favorable to the prosecution,"

reserving some details for the discussion. Commonwealth v.

Grassie, 476 Mass. 202, 207 (2017), quoting Commonwealth v.

Latimore, 378 Mass. 671, 677 (1979) (discussing review standard

utilized to assess sufficiency of evidence to disprove

mitigation).

In February 2017, the defendant was dating Sorheyddi

Colondres. He lived with her and her daughter, Daviana

Pinckney.

On February 9, 2017, Pinckney's father, Kevin Blanton,

picked her up from school and brought her to his home. Around 8

or 9 P.M., Colondres began sending Pinckney angry text messages

2
and calling her because she did not come home that evening.

Pinckney explained to Colondres that she could not come home

that night because there was a snowstorm and Blanton's car

battery had died. Colondres also sent Blanton text messages

that we set forth in greater detail in the discussion.

Around 1 A.M., Colondres and the defendant drove to

Blanton's home. While the defendant waited in the car,

Colondres banged on the home's door, screaming, "Get my

daughter. Get my daughter." The commotion woke up Pinckney as

well as Blanton's girlfriend, Jennifer Fajardo. When Blanton

opened the door, Colondres stormed into the house, yelling for

her daughter. Blanton told Colondres to be quiet, that Pinckney

was asleep, and that he would bring her home in the morning.

Colondres continued yelling and demanding to see Pinckney. At

that point, Blanton grabbed a long metal flashlight and went

outside.

A couple of seconds later, Fajardo heard Blanton say, "Come

get your girl." Pinckney and Fajardo then heard a loud bang.

Fajardo ran outside, followed by Colondres and Pinckney.

Outside, Fajardo saw the defendant on top of Blanton in the

snow. The defendant had a gun in his right hand. Blanton said,

"He shot me. He shot me," to Fajardo, and then, "You shot me,"

to the defendant. Blanton continued, "be careful. He has a

gun." Pinckney then said, "You shot my dad?" to the defendant,

3
who shook his head side-to-side in response. With the defendant

still on top of him, Blanton angrily said, "He's trying to shoot

me again."

After a struggle, the defendant got off of Blanton. The

defendant then got into the car he had arrived in, as Fajardo

helped Blanton off the ground. Colondres forced Pinckney into

the car and they, along with the defendant, drove off. We

reserve discussion of what was said in the car.

Fajardo ran inside to call 911 as Blanton made his way back

to the house. By the time police arrived, Blanton had died of

the gunshot wound to his right chest.

At the scene, police found a handgun in the snow where the

struggle occurred and a single .45 caliber shell casing. The

gun's magazine contained five bullets with another in the

chamber, all of which were Winchester brand .45 caliber. No

fingerprints were detected on the gun, magazine, live rounds, or

casing and DNA testing of those items yielded inconclusive

results. Police also recovered a bloody flashlight in the alley

leading to the kitchen door of Blanton's home. Police did not

find a firearm or ammunition inside Blanton's home and Fajardo

testified that she never saw either in the house.

Around 8 A.M., police arrived at the defendant's home.

When first questioned by police, the defendant said that he had

been home all night. The defendant later told police that he

4
had left the house a couple of times that evening, but did not

remember with whom he had been or what car he drove. In the

bedroom where they found the defendant, inside a safe, police

found several kinds of ammunition, including sixteen .45-caliber

rounds stamped "Winchester 45 auto" that were consistent in

size, shape, and full-metal-jacket brass casing configuration

with those found in the weapon recovered at the scene. Police

also seized the defendant's cell phone and later extracted its

data.

Discussion. 1. Motion to reduce the verdict. The

defendant first challenges the trial judge's order denying his

motion to reduce the verdict of second-degree murder to

voluntary manslaughter, arguing that the Commonwealth failed to

disprove the three theories of mitigation -- excessive force in

self-defense, heat of passion on reasonable provocation, and

heat of passion induced by sudden combat. See Commonwealth v.

Roman, 495 Mass. 412, 428 (2025) (mitigating circumstances).

"Under rule 25 (b) (2), a trial judge has broad authority to

reduce a jury's verdict, despite the presence of legally

sufficient evidence to support it." Grassie, 476 Mass. at 214.

"The role of this court in reviewing a trial judge's ruling on a

motion to reduce the verdict is 'not to decide whether we would

have acted as the trial judge did.'" Id., quoting Commonwealth

v. Chhim, 447 Mass. 370, 381 (2006). "Instead, we decide only

5
whether the judge abused his or her discretion or committed an

error of law." 2 Grassie, supra at 214. "Abuse of discretion

arises where 'the judge made "a clear error of judgment in

weighing" the factors relevant to the decision . . . such that

the decision falls outside the range of reasonable

alternatives.'" Id., quoting L.L. v. Commonwealth, 470 Mass.

169, 185 n.27 (2014).

In the light most favorable to the Commonwealth, the

evidence showed that the defendant arrived at the victim's house

armed with a loaded gun, left the safety of the car in which he

was sitting to confront the victim, and, without any provocation

from the victim, attacked and shot him. This evidence disproved

all three of the potential mitigating circumstances listed

above. See Roman, 495 Mass. at 431, quoting Grassie, 476 Mass.

at 210 (self-defense not available where defendant "did not use

or attempt to use all proper and reasonable means in the

circumstances to avoid physical combat before resorting to the

2 The defendant's reliance on Commonwealth v. Vargas, 475
Mass. 338 (2016), is misplaced. In Vargas, the Supreme Judicial
Court reduced a first-degree verdict to voluntary manslaughter
using its "extraordinary authority under G. L. c. 278, § 33E."
Vargas, supra at 363. See id. at 366. However, this court does
not have authority under § 33E, which is "given to the Supreme
Judicial Court alone." Commonwealth v. Riva, 18 Mass. App. Ct.
713, 719 (1984). Instead, our review is focused on whether the
motion judge abused his discretion by not reducing the verdict.
See id. See also Grassie, 476 Mass. at 214.

6
use of deadly force"); Commonwealth v. Miranda, 492 Mass. 301,

307 (2023) ("The victim making physical contact with the

defendant is necessary" to establish mutual combat);

Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006), quoting

Commonwealth v. Walden, 380 Mass. 724, 728 (1980) ("Reasonable

provocation is provocation that 'would have been likely to

produce in an ordinary person such a state of passion, anger,

fear, fright, or nervous excitement as would eclipse his

capacity for reflection or restraint'"). That the defendant

offered countervailing evidence does not change our analysis;

the jury was entitled to discredit the defendant's evidence

suggesting mitigating factors and self-defense. Commonwealth v.

Ronchi, 491 Mass. 284, 294 (2023) ("The jury reasonably could

have adopted the Commonwealth's theory that the defendant got

into a heated argument with his girlfriend, formed an intent to

kill her and her fetus, and stabbed her multiple times in the

area of her vital organs, in accordance with that plan"). We

discern no abuse of discretion on the part of the motion judge

in declining to reduce the conviction to voluntary manslaughter.

2. Ineffective assistance of counsel. "To prevail on a

claim of ineffective assistance of counsel, a defendant must

show both that his counsel's behavior fell measurably below that

of an ordinary fallible lawyer and that he was prejudiced as a

result." Commonwealth v. Domino, 465 Mass. 569, 577 (2013),

7
citing Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "A

strategic or tactical decision by counsel will not be considered

ineffective assistance unless that decision was 'manifestly

unreasonable' when made." Acevedo, 446 Mass. at 442, quoting

Commonwealth v. Adams, 374 Mass. 722, 728 (1978). "In making

this determination, we evaluate the decision at the time it was

made, and make 'every effort . . . to eliminate the distorting

effects of hindsight.'" Commonwealth v. Glover, 459 Mass. 836,

843 (2011), quoting Commonwealth v. Fenton F., 442 Mass. 31, 38

(2004).

The defendant argues that his trial counsel provided

ineffective assistance of counsel in four ways. We address each

in turn.

a. Involuntary manslaughter instruction. The defendant

argues that where the jury heard evidence that could have

supported a finding that the defendant did not intentionally

shoot the defendant, but did so only because the gun

inadvertently discharged, trial counsel should have requested an

instruction on involuntary manslaughter. 3 Because we are not

persuaded that the defendant was entitled to that instruction,

3 Trial counsel averred that he did not "recall if [he]
consciously thought about" requesting an involuntary
manslaughter instruction but, in retrospect, "still [did] not
see that the case presented a factual scenario under which
involuntary manslaughter was a plausible verdict."

8
the defendant's argument fails on the first prong of the

Saferian test.

"Involuntary manslaughter is an unlawful homicide

unintentionally caused by an act which constitutes such a

disregard of probable harmful consequences to another as to

amount to wanton or reckless conduct." Commonwealth v. Ridley,

491 Mass. 321, 330 (2023), quoting Commonwealth v. Lopez, 485

Mass. 471, 484 (2020). "An involuntary manslaughter instruction

is required if the evidence warrants a jury in finding the

defendant guilty of that offense." Commonwealth v. Pagan, 471

Mass. 537, 546, cert. denied, 577 U.S. 1013 (2015).

Here, the defendant's actions were not merely wanton or

reckless. See Pagan, 471 Mass. at 547. The defendant brought

the gun to the altercation, he was uninjured, and, at close

range, he shot Blanton in the chest near his heart. See id. at

546-547 (malice may be proved by evidence of defendant's

"commission of an act that, in the circumstances known to the

defendant, a reasonable person would have known created a plain

and strong likelihood of death" [quotation omitted]). The

defendant's actions in this case posed an "obvious risk of harm"

to Blanton, consistent with malice. Id. at 547 (involuntary

manslaughter instruction not warranted where the defendant

stabbed the victim with an eight-inch blade, posing an "obvious

9
risk of harm consistent with second or third prong malice"). 4

Therefore, trial counsel's failure to request an involuntary

manslaughter instruction was not "manifestly unreasonable."

Adams, 374 Mass. at 728.

b. Failure to introduce evidence of Blanton's motive and

disposition. The defendant argues that trial counsel provided

ineffective assistance of counsel for failing to introduce

evidence showing that Blanton was angry with him leading up to

the incident. This included evidence that Pinckney told Blanton

the night of the incident that she "felt disrespected" by

something the defendant had said and that the defendant "called

[Blanton], like, out his name," and that Pinckney told the

police that Blanton was "mad that [the defendant] disrespected

[her]," as well as evidence of a text message from Blanton to

Colondres, which read:

"You got this bitch ass nigga back in the house and got the
nerve to be arguing with my daughter and speaking on me.

4 Moreover, an involuntary manslaughter instruction would
have been inconsistent with the defense's trial strategy. See
Commonwealth v. Barbosa, 463 Mass. 116, 135 (2012). At trial,
the defense pursued the theory that Blanton brought the gun. It
would have been "tactically awkward" to request an involuntary
manslaughter instruction, which would have asked the jury to
conclude that the defendant brought the gun instead. Id. (where
"the primary defense was misidentification," an alternative
theory of manslaughter was not warranted), quoting Commonwealth
v. Donlan, 436 Mass. 329, 333-334 (2002). See Donlan, supra
(where the "primary defense at trial was that no sexual contact
had occurred," failure to request a lesser included instruction
of rape was not manifestly unreasonable).

10
That clown don't know me . . . yet. You a pitiful bitch
and him too. You ain't wanna tell me that for real, fuck
you."

To the extent that trial counsel opted not to introduce

this evidence, his decision was not "manifestly unreasonable,"

Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015), quoting

Acevedo, 446 Mass. at 442, and thus did not fall below accepted

standards of practice.

i. Pinkney's statements. Although Pinckney's statement

that Blanton was "mad that [the defendant] disrespected [her]"

could have been used to impeach her testimony at trial that

Blanton "didn't seem upset" or "appear angry" that night after

texting Colondres, it would not have been admissible to prove

Blanton's state of mind. See, e.g., Commonwealth v. Brum, 492

Mass. 581, 587-588 (2023) (prior inconsistent statements must

have been "made under oath before a grand jury" to be

substantively admissible).

Moreover, Pinckney's statements and Blanton's text message

would have been a "double-edged sword" for the defense.

Commonwealth v. Vinton, 432 Mass. 180, 185 (2000) (holding that

it was not manifestly unreasonable for trial counsel to not

submit photographs to corroborate defendant's testimony where

they were a "double-edged sword with the potential to backfire

on the defendant" [quotation omitted]). See Commonwealth v.

Robinson, 493 Mass. 775, 791-792 (2024) (holding that trial

11
counsel's decision to not call an eyewitness identification

expert was not manifestly unreasonable where the testimony would

have "cut both ways"). Although this evidence could have shown

that Blanton was angry with the defendant that night, it also

would have shown that the defendant had a reason to act

violently toward Blanton.

ii. Blanton's text messages. Introducing Blanton's text

message to Colondres would have risked the admission of their

subsequent text exchange under the doctrine of verbal

completeness. See Commonwealth v. Amaral, 482 Mass. 496, 503-

504 (2019) ("[W]hen a party introduces a portion of a statement,

a judge has discretion to allow admission of other relevant

portions of the same statement or writing which serve to clarify

the context of the admitted portion" [quotation and citation

omitted]). Because the related texts between Colondres and

Blanton not only provided evidence of Colondres's threats to

have the defendant take her to Blanton's home if Blanton did not

return Pinkney to Colondres that night, 5 but also showed

Blanton's attempts to deescalate the argument, 6 they suggested

5 Colondres's texts included the message, "This will be the
last day u ever see ur daughter dead beat," and "bring my
daughter or Imma have [the defendant] take me up to you home."

6 First, following multiple texts from Colondres, Blanton
responded that "I'm sending her to sleep and im takin her phone.
It's her bedtime. Knock if you want or wait that's it gn."
Colondres continued to text and Blanton attempted to block her.

12
that Blanton was cooling off from the initial upset of what

Pinckney told him, this evidence was a "double-edged sword." It

was not manifestly unreasonable for trial counsel to not

introduce it. See Robinson, 493 Mass. at 791-792; Vinton, 432

Mass. at 185.

c. Failure to impeach Pinckney's testimony. The defendant

argues that trial counsel provided ineffective assistance of

counsel when his cross-examination of Pinckney introduced an

otherwise inadmissible prior consistent statement.

At trial, Pinckney testified that during the car ride after

the incident, the defendant said, "your dad came at me with a

flashlight," which supported the Commonwealth's argument that

Blanton did not bring the gun. On cross-examination, trial

counsel attempted to impeach Pinckney, asking, "Did you ever

tell the police that you told them that . . . Mr. Blanton came

out with a flashlight?" Pinckney responded, "Have I ever told

the police that?" When trial counsel said, "Yes," Pinckney

answered, "Yes, sir." Trial counsel then asked if she made the

statement in her first two police interviews. The prosecutor

When Colondres's texts continued to come through, Blanton then
said, "I don't know how you still texting me. Leave [Daviana]
alone she has school in the am. She see you tomorrow it's a
storm don't be mad at her you wrong but you can't even admit it.
You letting a bitch nigga make you look stupid to your baby
smh."

13
interjected in front of the jury to say, "the Commonwealth would

stipulate that particular statement isn't made in the first two

statements of Ms. Pinckney . . . [b]ut, only the first two

statements" (emphasis added).

After the judge asked for clarification, the prosecutor

said, again in front of the jury: "Defense counsel is asking

Ms. Pinckney if she had mentioned the defendant's statement of,

Your father came at me with a flashlight, in the two initial

statements that she gave. The Commonwealth is willing to

stipulate that she did not make that statement in the first two

statements that she gave" (emphasis added). Counsel did not

elicit that in her first police interview, Pinckney said the car

ride after the incident was "completely silent" and that the

defendant "didn't really say anything."

"[F]ailure to use particular methods of impeachment at

trial rarely rises to the level of ineffective assistance of

counsel" (citation omitted). Commonwealth v. Goitia, 480 Mass.

763, 770 (2018). "Impeachment of a witness is, by its very

nature, fraught with a host of strategic considerations, to

which we will . . . show deference." Commonwealth v. Fisher,

433 Mass. 340, 357 (2001). "Furthermore, absent counsel's

failure to pursue some obviously powerful form of impeachment

available at trial, it is speculative to conclude that a

14
different approach to impeachment would likely have affected the

jury's conclusion." Id.

Here, trial counsel's cross-examination did not constitute

ineffective assistance of counsel. The cross-examination made

the jury aware of the salient point: that Pinckney did not

relay the flashlight comment in her first two police interviews.

See Fisher, 433 Mass. at 357 (counsel not ineffective where

counsel impeached the witness with the different versions of

events he had given). This would have allowed the jury to

question Pinckney's credibility.

In any event, it is unlikely that a different approach

would have achieved a better result for the defendant. The

flashlight comment was just one piece of evidence supporting the

Commonwealth's argument that the defendant, not Blanton, brought

the gun. As discussed, the evidence showed that the defendant

had the same ammunition as the kind found on the scene and that

he was found on top of Blanton with the firearm in his hand.

Blanton was not prejudiced by trial counsel's cross-examination.

See Commonwealth v. Marinho, 464 Mass. 115, 128 (2013) (even

where counsel provided ineffective assistance, the defendant

must "show that he was prejudiced by counsel's performance").

d. Failure to introduce corroborating evidence of the

defendant's challenged testimony. At trial, the defendant

testified that he was on the phone with a woman, Quadeshia Sims,

15
as the victim approached the car. He argues that his counsel

was ineffective for failing to interview Sims, who the defendant

says was in his telephone as "Deja," 7 and introduce supportive

evidence from the cell phone records.

i. Failure to interview Sims. Trial counsel had a duty

"to conduct an independent investigation of the facts."

Commonwealth v. Baker, 440 Mass. 519, 529 (2003). Here, the

only evidence that the defendant told trial counsel about Sims

comes from his own posttrial affidavit, which the judge was

entitled to discredit as self-serving. See Marinho, 464 Mass.

at 123 ("[A] judge is entitled to discredit affidavits he or she

does not find credible"); Commonwealth v. Denis, 442 Mass. 617,

633-634 (2004). Similarly, the judge was entitled to credit

trial counsel's affidavit that he did not remember the defendant

mentioning Sims and that he would have investigated further had

he known about her. See Marinho, 464 Mass. at 123.

Assuming that counsel was aware of the defendant's claim to

have been talking to Sims moments before the shooting, we are

unpersuaded that trial counsel's failure to investigate the

defendant's account, or to call Sims to testify at trial, fell

below accepted standards. This is because the call log section

7 The Commonwealth disputes whether "Deja" was Sims. In any
event, after trial, Sims offered an affidavit corroborating the
defendant's testimony.

16
of an extraction report prepared by the State police and used at

trial by the prosecution did not reflect such a phone call with

Sims. The extraction report indicated that the defendant last

accessed a contact named "Deja" at 2:37:57 A.M. -- about one

and one-half hours after the shooting. 8 See Acevedo, 446 Mass.

at 442.

ii. Failure to introduce "last time contacted" entry. For

the same reasons, we discern no deviation from accepted

standards of practice based on trial counsel's failure to

introduce the "last time contacted" entry referenced above to

corroborate the defendant's affidavit that he was on the

telephone with Sims immediately before the shooting.

Furthermore, according to the affidavit of State police trooper

Thomas Sullivan, which was filed in support of the

Commonwealth's opposition to the defendant's motion for a new

trial, that entry does not necessarily indicate that a call took

place. Instead, it may only indicate that the defendant

accessed the contact on his phone.

Instead, trial counsel made effective use of the record to

call the extraction report into question. The extraction report

indicated that twelve calls had been deleted. Although the

8 A subsequent extraction from the telephone in 2022 with
newer software confirms that the defendant did not call Deja on
February 9 or 10, 2017.

17
trooper testified on direct examination that all twelve deleted

calls were shown in the report, during defense counsel's cross-

examination, the trooper acknowledged that only two calls were

marked deleted in red. This discrepancy would have allowed the

jury to discredit the report and conclude that the defendant's

phone call with Sims was missing from the report.

3. Fajardo's testimony. During trial, the judge ruled

that Fajardo could testify to her observations of the

defendant's "actions, his positioning, [and] whether she saw a

firearm in his hand," but could not offer "the summary opinion

impression that it looked like the defendant was trying to shoot

the victim a second time." Nonetheless, in a nonresponsive

answer to the prosecutor's question about what the defendant was

doing with his hands, Fajardo testified that the defendant

"looked like he was going to shoot [Blanton] again," prompting

the defendant to request a mistrial. The judge denied the

defendant's motion, struck the testimony, 9 and "forcefully"

instructed the jury to disregard the stricken statement.

9 Fajardo's testimony that the defendant "looked like he was
going to shoot [Blanton] again" was properly struck as it was
impermissible opinion testimony of the defendant's intent. See
Borella v. Renfro, 96 Mass. App. Ct. 617, 625 n.22 (2019) (a lay
witness is not permitted "to express an opinion about what
someone was intending or planning to do based on an observation
of the person"), citing Commonwealth v. Jones, 319 Mass. 228,
230 (1946).

18
Shortly afterward, the judge permitted Fajardo to testify that

after shooting Blanton the first time, the defendant pointed the

gun at him again, and Blanton said, "He's trying to shoot me

again." The defendant argues that the judge erred by

(1) denying his motion for mistrial after the jury heard

Fajardo's inadmissible opinion testimony that it looked like the

defendant was going to shoot Blanton again, and (2) allowing

Fajardo to testify that Blanton said, "He's trying to shoot me

again." 10 We disagree.

We review the denial of a motion for mistrial for abuse of

discretion. Commonwealth v. Bryant, 482 Mass. 731, 740 (2019).

"Where a party seeks a mistrial in response to the jury's

exposure to inadmissible evidence, the judge may correctly rely

on curative instructions as an adequate means to correct any

error and to remedy any prejudice to the defendant." Id. On

this record, the judge did not abuse his discretion in denying

the motion for mistrial.

The defendant also challenges admission of Blanton's

statement, "He's trying to shoot me again." The defendant does

10The defense did not object to Fajardo's testimony of
Blanton's statement. However, the defense filed a motion in
limine prior to Fajardo's testimony to exclude Blanton's
statement, properly preserving the issue on appeal. See
Commonwealth v. Hart, 493 Mass. 130, 143 n.8 (2023) (filing a
motion in limine "is sufficient to preserve the issue").

19
not dispute that Blanton's statement was an excited utterance.

Instead, he argues the statement was inadmissible opinion

testimony of the defendant's intent. We disagree. Blanton's

statement reflected his perception of the cause of his injuries

and emotional excitement at the time; namely, that the defendant

shot him and was trying to do so again. See Commonwealth v.

Napolitano, 42 Mass. App. Ct. 549, 551, 554 (1997) (witness'

testimony of victim's out of court statements that the defendant

"tried to drown her" and "tried to kill her" admissible as

excited utterances because they related to her "perception" of

the "underlying event"). Therefore, the judge did not abuse his

discretion in allowing Fajardo to testify as to Blanton's

statement. Commonwealth v. Andre, 484 Mass. 403, 414 (2020)

("We review a judge's evidentiary rulings for an abuse of

discretion").

4. The prosecutor's closing argument. 11 The defendant

challenges three points made in the prosecutor's closing

argument: (a) the argument that the defendant planned the

attack; (b) the reliance upon Fajardo's excluded opinion

testimony to suggest that the defendant aimed the gun at

Blanton's "vital area"; and (c) the argument that all of the

11Commendably, the judge encouraged the attorneys, before
closing, to review the Massachusetts Guide to Evidence § 1113
regarding permissible and impermissible argument in closing.

20
deleted calls noted in the partial cell phone report were in the

full extraction report. We review the first two arguments for

prejudicial error because the defendant objected. See

Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 233 (2016). As for

the third argument, the defendant did not object and the

standard of review is whether there was a substantial risk of a

miscarriage of justice. See id.

a. Argument that the defendant planned the attack.

"Prosecutors are entitled to argue theories supported by the

evidence and to suggest fair inferences from the evidence (which

inferences need only be reasonable and possible, not necessary

or inescapable)." Commonwealth v. Correia, 65 Mass. App. Ct.

27, 31 (2005). "The jury have the ability to discount hyperbole

and other improper statements . . . and the trial judge's

instructions are generally adequate to cure errors in the

arguments." Commonwealth v. Santiago, 425 Mass. 491, 495

(1997), S.C., 427 Mass. 298 and 428 Mass. 39, cert. denied, 525

U.S. 1003 (1998).

Here, "premeditation can be inferred from the bringing of a

firearm to the scene of the killing." Commonwealth v. Robinson,

482 Mass. 741, 746 (2019). The jury accepted that the defendant

brought the firearm to the scene. The jury also could infer

that the defendant loaded the firearm as the ammunition in it

matched the ammunition in his home and no ammunition was found

21
at the victim's home. However, the prosecutor's argument that

the defendant was angry on the way to Blanton's home and that he

thought, "I want you dead" as he shot Blanton, was not supported

by the evidence.

To the extent these arguments are improper, however, the

judge's general instruction to the jury was sufficiently

curative. 12 Furthermore, it is apparent from the jury's verdict

of second-degree murder that they disregarded the prosecutor's

premeditation theory. Commonwealth v. Tejada, 484 Mass. 1, 4,

cert. denied, 141 S. Ct. 441 (2020) (elements of murder in first

degree include premeditation). Accordingly, we think the jury

understood the judge's instruction and sufficiently parsed

through the evidence to reach their conclusion. See

Commonwealth v. Lester, 486 Mass. 239, 249 (2020) (general

instruction sufficiently curative where the prosecutor's

misstatements in closing did not make a difference in the jury's

conclusions).

b. Argument that the defendant aimed the gun at Blanton's

"vital area." Although the prosecutor's argument that the

defendant purposefully aimed the gun at Blanton's "vital area"

12The judge instructed the jury that "there were arguments
made during counsel's closing argument as to what inferences you
might draw. You should not draw any inferences unless you find
that they are reasonable and that they are based on the evidence
presented, not on some speculation and not on some conjecture."

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may have been an inference, it was supported by the evidence.

See Correia, 65 Mass. App. Ct. at 31. Cf. Commonwealth v.

Francis, 391 Mass. 369, 372–373 (1984) ("Although the

prosecutor's closing argument offered a doubtful interpretation

of the testimony, this version was, at least, within the

reasonable inferences permissibly open to conjecture from the

testimony in its light most favorable to the Commonwealth").

For instance, the evidence showed that the defendant shot

Blanton in the chest at close range. Moreover, there was

evidence that, afterward, the defendant continued to straddle

the victim while pointing the gun at him. The prosecutor's

argument was not improper.

c. Argument concerning the extraction report. The

prosecutor argued in her closing that all the deleted calls in

the extraction report were in the full 5,000 page report, which

was not in evidence. Although the full report was not in

evidence, the prosecutor's argument was supported by the

trooper's testimony. See Correia, 65 Mass. App. Ct. at 31.

When asked if the full extraction report reflected all the

deleted calls, he responded, "As far as I know." This was not

error and even if it was, it did not present a substantial risk

of a miscarriage of justice.

5. Convictions of unlawful possession of a firearm and

ammunition. The defendant argues that that his convictions of

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unlawful possession of a firearm and ammunition must be reversed

due to the Supreme Judicial Court's decisions in Commonwealth v.

Guardado, 491 Mass. 666 (2023) (Guardado I), and Commonwealth v.

Guardado, 493 Mass. 1 (2023) (Guardado II), cert. denied, 144

S. Ct. 2683 (2024). The Commonwealth concedes that the

defendant is entitled to a new trial on the firearms-related

offenses where the Commonwealth did not introduce evidence that

the defendant lacked a license to carry firearms or a firearms

identification card. Additionally, the judge, lacking the

benefit of New York State Rifle & Pistol Ass'n v. Bruen, 597

U.S. 1 (2022), Guardado I, and Guardado II, did not instruct the

jury that nonlicensure is an essential element of the charges.

Accordingly, we agree that the firearm and ammunition

convictions must be vacated. 13

Conclusion. We affirm the defendant's conviction of murder

in the second degree and the order denying his motion for a new

trial. We vacate the defendant's convictions of unlawful

possession of a firearm and ammunition (counts two, three, and

13The defendant does not otherwise challenge the
sufficiency of the evidence on these charges, or argue that he
may not be retried on them.

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four) and set aside those verdicts. The Commonwealth may retry

the defendant on the firearm and ammunition charges if it so

chooses.

So ordered.

By the Court (Henry, Hand &
Brennan, JJ. 14),

Clerk

Entered: June 23, 2025.

14 The panelists are listed in order of seniority.

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