Commonwealth v. Nicholas C. Pilalas.

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

22-P-352

COMMONWEALTH

vs.

NICHOLAS C. PILALAS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Convicted by a jury of second-degree murder,1 the defendant,

Nicholas C. Pilalas, appeals from the denial of his motion for a

new trial. He contends that the attorney who handled his direct

appeal (appellate counsel) was ineffective for not having raised

a claim that the prosecutor misstated the law of self-defense in

her closing argument when she repeatedly referred to the

defendant's failure to "retreat" from a dispute on a public

street. We agree that the comments were susceptible to

interpretation as an incorrect statement of law, but because the

trial judge gave a thorough and correct curative instruction, to

which trial defense counsel did not object, we conclude that

1 The defendant was also convicted of two counts of assault and
battery by means of a dangerous weapon, and one count of assault
and battery.
they did not give rise to a substantial risk of a miscarriage of

justice. Thus, appellate counsel's failure to raise a claim of

prosecutorial misconduct did not deprive the defendant of an

available and substantial ground of defense by omitting a

significant and obvious appellate issue which may have entitled

him to relief. We affirm.

Background. The facts are set forth in detail in

Commonwealth v. Pilalas, 91 Mass. App. Ct. 1132 (2017) (Pilalas

I). As relevant here, the jury heard evidence that while

driving his car at night, the defendant encountered a group of

five young adults walking on a rural road. The defendant did

not know them, but aggressively demanded an explanation for why

they were there. After members of the group repeatedly asked

him to leave them alone, the defendant got out of his car and

confronted them, then got back in his car and started to drive

away. Just then a car drove up containing three young adult

males including the victim. After learning from the group that

the defendant had been harassing them, the three young men in

the car yelled angrily at him. The defendant became "pissed

off" and returned, demanding of the three young men what their

"problem" was. After the three young men repeatedly told the

defendant to leave, he responded that they had no right to tell

him to do so; he got out of his car, although nothing was

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blocking its path and he could have driven away. An altercation

ensued during which the defendant fatally stabbed the victim.

During her closing argument, the prosecutor used a form of

the verb "retreat" seven times. She argued:

"Ladies and gentlemen, you're going to also hear from the
Judge as he will instruct you regarding self-defense.
Plain and simple, . . . this defendant has a duty, as we
all do in the state of Massachusetts, to retreat before
using deadly force. I think I have gone over it again and
again but I'll tell you again . . . could he have
retreated? I ask you to go back there and think of all the
times that he had to retreat. Ask yourself who started
this whole thing? Who could have retreated? Who, instead
of retreating, brought a knife to a one-on-one fistfight?"
(Emphases added.)

Near the end of her closing, the prosecutor summarized, "I

suggest to you that at the moment the defendant made every

single time the decision not to go home, not to retreat, not to

go in his running, working vehicle that was not blocked in,

every time he had the opportunity to retreat and every time he

refused" (emphases added).

Defense counsel objected, arguing that the prosecutor made

"a perversion" of the law of self-defense, because the defendant

had no duty to retreat from "being out on the street using

obnoxiousness back and forth." Arguing that no curative

instruction could remedy that and other issues in the

prosecutor's closing argument, defense counsel moved for a

mistrial. The judge denied the request for a mistrial, but

noted, "I do think that the assistant district attorney at times

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blurred the boundary between suggesting properly . . . that with

some common sense on the part of the defendant the whole

situation could have been avoided . . . to suggesting that there

was an actual duty to retreat before it may have arisen. So I

will say something curative in that respect."

During his charge, the judge instructed on self-defense

from the Supreme Judicial Court's Model Jury Instructions on

Homicide 19-30 (2013), as then in effect. In discussing the

duty to retreat, the judge elaborated on the model instruction

by adding this:

"[I]t's up to you what evidence to accept, but there was
testimony that the defendant was told on a number of
occasions . . . to please leave, to please go and there was
evidence that at those times the defendant's path was
unobstructed . . . . There is no duty to depart from a
public way, a street generally because somebody asks you
to. There is no duty to leave or break off from a verbal
argument. So the duty to [retreat] arises out of the
necessity to avoid the use of physical combat and deadly
force."

"So whatever relevance the evidence may have in general
your focus needs to be to the extent that you consider the
duty to retreat, it is the duty to retreat before resorting
to physical combat and the use of deadly force. What is
the situation at that point in the trial is what your focus
should be."

Defense counsel did not object to the jury instructions.

After trial, trial defense counsel filed a motion pursuant

to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502

(1995), for acquittal notwithstanding the verdict, or in the

alternative for reduction of the verdict to manslaughter. In a

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decision that another panel of this court has deemed "thoughtful

and thorough," Pilalas I, 91 Mass. App. Ct. 1132, the judge

denied the motion, recognizing that his power to reduce the

verdict under Rule 25 (b) (2) was similar to that of the Supreme

Judicial Court on review under G. L. c. 278, § 33E. The judge

noted that the Supreme Judicial Court has held that "[a] fine

line" distinguishes second-degree murder based on third-prong

malice from involuntary manslaughter, Commonwealth v. Lyons, 444

Mass. 289, 293 (2005), and that, on similar facts (stabbing

during altercation), the question whether justice required

reduction of the verdict was "very close," Commonwealth v.

Jones, 366 Mass. 805, 808 (1975). Stating that he considered

the question in this case to be "closer still," the judge

nevertheless declined to substitute his own judgment for that of

the jury.

The defendant then retained appellate counsel, who filed an

appeal on the merits briefing and arguing a single issue: that

the judge had erred in declining to reduce the verdict. A panel

of this court affirmed the conviction. Pilalas I, 91 Mass. App.

Ct. at 1132.

Represented by another attorney, the defendant filed a

motion for a new trial, or in the alternative for Rule 25 (b)

(2) relief, arguing that appellate counsel was ineffective for

raising only a "single, hopeless issue," but not the "stronger

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arguments" that were available: that the trial prosecutor

committed misconduct in her closing argument by repeatedly

referring to the defendant's duty to retreat, which misstated

the law, and by inserting herself into the jury's deliberative

process by using the phrase "we know." In a comprehensive

memorandum of decision, the trial judge denied the motion,

concluding that the jury instructions cured any prejudice from

the prosecutor's references to a duty to retreat, and her use of

"we" would have been understood by the jurors as a colloquial

suggestion to review the evidence.2

Discussion. Standard of review. "A motion for new trial

is addressed to the sound discretion of the trial judge"

(citations omitted). Commonwealth v. Jacobs, 488 Mass. 597, 600

(2021). Because the judge who ruled on the motion for new trial

was also the trial judge, we extend "special deference" to his

denial of the motion (citation omitted). Commonwealth v.

Robertson, 88 Mass. App. Ct. 52, 59 n.14 (2015). We review the

judge's decision on the "motion for a new trial for an abuse of

2 The judge also denied the defendant's renewed motion for Rule
25 (b) (2) relief, again noting that this case was close, but
concluding that it "is not one of those extraordinary cases
where the interests of justice require the trial judge to
disturb a verdict supported by the evidence." Commonwealth v.
Grassie, 482 Mass. 1017, 1017 (2019). Compare Commonwealth v.
Pagan, 471 Mass. 537, 542, cert. denied, 577 U.S. 1013 (2015).
The defendant does not argue on appeal that the judge abused his
discretion by denying the motion on this ground, and so we do
not reach that issue.

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discretion, meaning that we consider whether it resulted from 'a

clear error of judgment in weighing the factors relevant to the

decision such that the decision falls outside the range of

reasonable alternatives.'" Jacobs, supra, quoting L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Ineffective assistance of appellate counsel. In assessing

whether appellate counsel's performance deprived the defendant

of his right to effective assistance of counsel, we apply the

familiar standard of Commonwealth v. Saferian, 366 Mass. 89, 96

(1974): whether that performance fell "measurably below that

which might be expected from an ordinary fallible lawyer," and

"whether it has likely deprived the defendant of an otherwise

available, substantial ground of defence." In applying that

standard to appellate counsel's handling of the case, "we focus

on whether appellate counsel 'failed to raise a significant and

obvious issue . . . which . . . may have resulted in a reversal

of the conviction, or an order for a new trial.'" Commonwealth

v. Aspen, 85 Mass. App. Ct. 278, 282 (2014), quoting

Commonwealth v. Sowell, 34 Mass. App. Ct. 229, 232 (1993).

a. Performance of an ordinary, fallible lawyer. The trial

judge concluded that the first Saferian prong was met because

the issue raised by appellate counsel "was not a strong argument

likely to succeed," and arguing impropriety in the prosecutor's

closing argument would not have undermined, and may have

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bolstered, the claim that a manslaughter conviction would be

more consonant with justice. We agree that the record

establishes that appellate counsel's performance fell below that

of an ordinary, fallible lawyer.

b. Otherwise available, substantial ground of defense. As

to the second Saferian prong, however, the trial judge concluded

that the defendant had not demonstrated prejudice from appellate

counsel's failure, because an appellate challenge to the

prosecutor's closing argument would not likely have resulted in

reversal of the conviction or a new trial. See Aspen, 85 Mass.

App. Ct. at 282.

1. Prosecutor's references to defendant's duty to

"retreat." As mentioned above, the trial judge recognized that

the prosecutor improperly suggested that the defendant had a

duty to retreat that is broader than the duty that the law

imposes, by repeatedly stating in her closing argument that the

defendant could have retreated at various points in his

interactions with the five pedestrians and the three young men.

During trial, the judge denied the defendant's motion for a

mistrial, instead giving the pointed curative instruction set

forth above, to which trial counsel did not object. In ruling

on the motion for new trial, the trial judge concluded that any

misstatement by the prosecutor as to the law of retreat did not

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influence the jury's decision to convict, particularly given the

curative instruction.

The defendant asserts that we should accord "no deference"

to the trial judge's assessment of the effectiveness of his own

curative instruction. We are not persuaded. Unlike the trial

judge, we did not have the opportunity to view how the

prosecutor's argument and the judge's curative instruction

affected the jurors. See Commonwealth v. Garrey, 436 Mass. 422,

435 & n.6 (2002) (judge who struck improper testimony and gave

prompt curative instruction could see jurors' reactions and

determine necessity of mistrial). Indeed, the fact that

experienced trial counsel did not object to the judge's curative

instruction is some indication that it had its intended effect.

Cf. Commonwealth v. Moore, 489 Mass. 735, 754 (2022) (lack of

objection to prosecutor's closing "some indication" that its

tone not prejudicial [citation omitted]).

The Supreme Judicial Court's decision in Commonwealth v.

Ridley, 491 Mass. 321 (2023), is instructive. In that case, the

prosecutor argued in closing that a punch from the victim did

not amount to reasonable provocation, because "anytime there was

a fist fight, you would have the ability and the right to

eviscerate someone." Id. at 328. The Supreme Judicial Court

was concerned that the statement, to which that defendant did

not object, was "phrased broadly enough that it could be

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interpreted as stating that a finding of reasonable provocation

is equivalent to a conclusion that the killing was justified,

which is an incorrect statement of law." Id. at 329-330.

Considering the issue under the standard of G. L. c. 278, § 33E,

the court concluded that no substantial likelihood of a

miscarriage of justice arose, particularly because of the

judge's proper instructions on voluntary manslaughter and

reasonable provocation, and repeated admonitions that the judge

provides the instructions of law. Id. at 330.

Here, the judge properly instructed on self-defense,

supplemented by the curative instruction set forth above. He

also told the jurors that they must follow the law as he gave it

to them. We conclude that the judge's curative instruction

obviated any substantial risk of a miscarriage of justice. See

Garrey, 436 Mass. at 435.

b. Prosecutor's inserting herself into jury's deliberative

process. The defendant also argues that in her closing argument

the prosecutor inserted herself into the jury's deliberative

process in two ways. First, he contends that the prosecutor

improperly used the phrase "we know" more than a dozen times

when describing evidence. For example, she said, "What do we

know based on what the defendant told you, based on what every

single witness told you?"

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The trial judge, who was present, concluded that the

prosecutor's use of first-person pronouns was simply a means of

suggesting that the jury and the prosecutor review the evidence

together, and was not improper. Having reviewed the transcript

of the prosecutor's closing argument, we agree. See

Commonwealth v. Jenkins, 458 Mass. 791, 797 (2011) ("we know

that" and "let's start with" to introduce descriptions of

evidence in closing not improper). The prosecutor used the

phrase "we know" to introduce summaries of the evidence, not to

interject her own personal beliefs. See Commonwealth v.

Silvelo, 486 Mass. 13, 20-21 (2020) (prosecutor's phrasing,

"[w]hat we do know is what [the trooper] saw" summarized

trooper's testimony, not prosecutor's extraneous knowledge).

Second, the defendant argues that the prosecutor improperly

used the phrase, "[p]erhaps your thought process would be a

little bit different if" when referring to events that did not

occur. For example, she used that phrase to begin sentences

pointing out that it may have been different had the defendant

been on foot, or was prevented from leaving, or if anyone other

than him had been armed. Again, the trial judge concluded that

the references were a commentary on the trial evidence. See

Silvelo, 486 Mass. at 20 (in context, no error in argument "[w]e

don't know what would have happened if" trooper had reacted

immediately to seeing defendant's gun rather than waiting for

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backup). Contrast Commonwealth v. Burts, 68 Mass. App. Ct. 684,

689 & n.2 (2007) (prosecutor improperly inserted himself into

jurors' deliberative process by commenting in closing on jurors'

facial expressions during defense closing).

Conclusion. The defendant has not shown that, if appellate

counsel had raised claims about the prosecutor's closing

argument, "'better work might have accomplished something

material for the defense.'" Aspen, 85 Mass. App. Ct. at 280,

quoting Commonwealth v. Baran, 74 Mass. App. Ct. 256, 272

(2009). Accordingly, the trial judge did not abuse his

discretion in denying the motion for new trial.

Order denying motions for new
trial and to reduce the
verdict affirmed.

By the Court (Vuono, Henry &
Grant, JJ.3),

Clerk

Entered: May 12, 2023.

3 The panelists are listed in order of seniority.

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