COMMONWEALTH vs. DAVID N. TAVARES.

ABRAMS, J. After a jury trial, the defendant, David Tavares, was convicted of murder in the first degree. [Note 1] He was sentenced to the mandatory term of life imprisonment. [Note 2] Tavares appeals. He claims error concerning (1) the denial of his motion to suppress statements made by him to police officials; (2) the instructions to the jury; (3) the denial of a motion for mistrial based on juror misconduct; [Note 3] and (4) a variance between the Commonwealth's proof and its bill of particulars. Tavares also requests that we exercise our power under G. L. c. 278, Section 33E, and reduce the verdict

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to a lesser degree of guilt. We conclude that there was no reversible error. However, our review under Section 33E indicates that "the verdict of conviction of murder in the [first] degree was against the weight of the evidence considered in a large or nontechnical sense . . . ," Commonwealth v. Bowman, 373 Mass. 760, 765 (1977), and we order a reduction of the verdict to murder in the second degree.

We summarize the facts. On the evening of May 24, 1979, the defendant, age seventeen, was drinking in the third base dugout of Dias Field in New Bedford. He was accompanied by a friend, Bruce Bookman, age seventeen, and a cousin, Keith Tavares (Keith), age twenty. While in the dugout, the three collectively consumed twelve twelve-ounce cans of beer and a fifth of vodka. They decided to obtain more beer, but were fifty cents short of the purchase price. One of them approached the victim, Jesse Aranjo, as he was passing by the dugout, and asked him for fifty cents. The victim was not known to any of the three men in the dugout.

The victim responded by insulting them. He threatened to return with members of his motorcycle gang to beat them up. A fight ensued between the three men and the victim. The victim was subdued, and the defendant, aided by Keith and Bookman, removed the victim's clothing and took him into the dugout where they left him. The defendant, Keith, and Bookman then left the ballpark, the defendant taking the victim's jacket, which he later discarded, and one dollar, which he later lost. The defendant returned to the ballpark shortly thereafter to retrieve a comb he had lost during the fight and saw the victim in the dugout, trying to get up.

1. The motion to suppress. The body of Jesse Aranjo was discovered at approximately 12:30 P.M. on May 25, 1979. At approximately 2 A.M. on May 26th, the defendant and a female companion went to the police station and asked the officer in charge if the police were looking for him. The officer replied that his records did not indicate that the police were looking for a David Tavares. The officer recommended that Tavares call back later in the day.

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At about 10:30 A.M., the police went to Tavares's house and asked him if he would voluntarily come to the station to speak with them. Tavares agreed to go to the station. At that time, Tavares knew of Aranjo's death. He also knew that the police wanted to speak to him about Aranjo. At the station, Tavares made some incriminating statements. [Note 4]

Prior to trial, the defendant moved to suppress those statements. The defendant claims that as a result of his youth and inexperience, he made these statements without a knowing and intelligent waiver of his Miranda rights as required by the Fifth and Sixth Amendments to the Constitution of the United States. At the hearing on his motion, the defendant did not deny that he made the statements, nor did he claim that the police used force, intimidation, or trickery to obtain the statements. He also did not allege that the police denied him food, drink, or sleep or that the police used physical brutality. Further, he did not claim that the police failed to advise him of his constitutional rights. The basis for Tavares's motion was that the statements were coerced because of his lack of experience and his youthful fear of authority.

After the suppression hearing, the judge made the following findings of fact. At the police station, the defendant was repeatedly advised of the Miranda rights. The defendant indicated to police that he understood these warnings. Before making any statements, the defendant signed a card acknowledging that he understood his rights. Moreover, the judge found that, since the defendant had been arrested on prior occasions, he was familiar with these procedures.

From listening to a tape recording of the interrogation, the judge found no evidence of any threats, inducements, or

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promises of reward. The tapes indicated that the defendant was coherent and appeared to understand what was said during the interrogations. The judge concluded that Tavares knowingly and voluntarily waived his constitutional rights. The judge also concluded that after the waiver the defendant intelligently and voluntarily answered the questions put to him by the police.

The defendant challenges the judge's findings as erroneous. He claims that his youth and inexperience vitiated his waiver, [Note 5] and that his statements were not voluntary. To support his argument, the defendant cites several studies that have suggested that youths are particularly susceptible to the inherent coerciveness of interrogations. [Note 6] See Gage, Protecting the Juvenile Witness, 17 J. of Family L. 439, 451 (1978); Note, Interrogations in New Haven, The Impact of Miranda, 76 Yale L.J. 1519, 1577 (1967). Relying on these studies, the defendant claims that because of his special sensitivity to police pressure in his first statement to the police, he took more than his share of responsibility for the fight with Aranjo. [Note 7]

"In reviewing a trial judge's determination that a voluntary waiver was made, the judge's subsidiary findings will

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not be disturbed, if they are warranted by the evidence, and his resolution of conflicting testimony will be accepted." Commonwealth v. Santo, 375 Mass. 299, 303 (1978). See Commonwealth v. Tabor, 376 Mass. 811, 822 (1978); Commonwealth v. Murphy, 362 Mass. 542, 550 (1972) (Hennessey, J., concurring). Although the judge's ultimate findings are open for review, "a finding of voluntary waiver is `entitled to substantial deference by this court.' Commonwealth v. White, 374 Mass. 132, 138 (1977), aff'd, 439 U.S. 280 (1978)." Commonwealth v. Tabor, supra. However, "[o]ur appellate function requires that we make our independent determination on the correctness of the judge's `application of constitutional principles to the facts as found . . . .' Brewer v. Williams, 430 U.S. 387, 403 (1977)." Commonwealth v. Haas, 373 Mass. 545, 550 (1977). See Commonwealth v. Wilborne, 382 Mass. 241, 251 (1981).

A judge's finding that the defendant knowingly and voluntarily waived his Miranda rights is not the only prerequisite to admissibility. A judicial determination of voluntariness is also constitutionally required. Jackson v. Denno, 378 U.S. 368 (1964). "In determining admissibility in the first instance the judge is undoubtedly bound by the dictates of Miranda, i.e., if its prerequisites have not been fully met, the confession is without more involuntary as a matter of law, hence inadmissible and insubmissible. But an incriminating statement may also be inadmissible and insubmissible because not factually shown to have been freely and voluntarily given, even though the requirements of Miranda have been fully met." Coyote v. United States, 380 F.2d 305, 309-310 (10th Cir.), cert. denied, 389 U.S. 992 (1967). See Eisen v. Picard, 452 F.2d 860, 863-865 (1st Cir. 1971).

At the suppression hearing, the defendant offered no evidence that he was particularly susceptible to police pressure. There was no evidence that he had been drinking in the hours immediately before he spoke to the police. Nor was there any evidence of mental impairment or the use of drugs. See Commonwealth v. Wilborne, 382 Mass. 241, 253-254 (1981). Compare Commonwealth v. Hosey,

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368 Mass. 571 (1975); Commonwealth v. Daniels, 366 Mass. 601 (1975). Indeed, the record indicates that he had completed the tenth grade, had been accepted into the armed forces of the United States, and was married and the father of a child.

The record offers no explanation why the defendant first said that he alone kicked the victim. However, there may be explanations for the defendant's conduct other than the susceptibility of youth. For example, the defendant may have been acting under a code of silence, with a foolish sense of braggadocio or from family loyalty to his cousin Keith. In any event, we are not free to speculate on matters outside the record. Cf. Commonwealth v. Ferguson, 384 Mass. 13, 17-19 (1981).

"A minor may waive constitutional rights and make a confession which is admissible against him." Commonwealth v. Daniels, 366 Mass. 601, 605 (1975), and cases cited. Compare Commonwealth v. Davis, 380 Mass. 1, 4-7 (1980); Commonwealth v. Daniels, supra at 606-608, with Commonwealth v. Meehan, 377 Mass. 552, 567-568 (1979), cert. dismissed, 445 U.S. 39 (1980). Whether the facts support the admission of statements made by a minor "must be determined by an examination of `the totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation.' Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)." Commonwealth v. Daniels, 366 Mass. 601, 606 (1975). In light of the totality of the circumstances, we believe that the judge correctly concluded that the defendant knowingly and voluntarily waived his rights under Miranda and made the statements voluntarily.

2. Jury instructions. The defendant claims three errors in the instructions to the jury: (1) the judge erred in using the term "moral certainty" in defining reasonable doubt; (2) the judge impermissibly shifted the burden of proof from the Commonwealth by using language from Commonwealth v. Madeiros, 255 Mass. 304, 307 (1926); and (3) the instructions on admissions were prejudicially erroneous. We disagree.

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a. Moral certainty. The defendant claims error in the failure of the judge to grant one of his requests for instructions to the jury. Relying on United States v. Indorato, 628 F.2d 711, 720 (1st Cir.), cert. denied, 449 U.S. 1016 (1980), the defendant argues that the judge erred when he equated the requirement of proof beyond a reasonable doubt with proof to a moral certainty. [Note 8] The defendant's argument is most unpersuasive, because the defendant requested instructions containing the words "moral certainty." [Note 9] Further, instructions containing the words "moral certainty" have not resulted in reversals. See United States v. Previte, 648 F.2d 73, 83 (1st Cir. 1981); United States v. Indorato, supra at 721; United States v. Magnano, 543 F.2d 431, 436-437 (2d Cir. 1976). Moreover, we believe it is sound policy to adhere to the definition of reasonable doubt set forth in Commonwealth v. Webster, 5 Cush. 295, 320 (1850), a definition that includes the words "moral certainty." See Commonwealth v. Williams, 378 Mass. 217, 235 (1979); Commonwealth v. Ferreira, 373 Mass. 116, 130 n.12 (1977).

b. Madeiros charge. The defendant also claims that the judge erred when he instructed the jury with language from the instructions quoted in Commonwealth v. Madeiros, 255 Mass. 304, 307 (1926). [Note 10] Trial counsel [Note 11] did not specifically

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object to this portion of the charge. Although the absence of any objection is relevant, see Commonwealth v. Fluker, 377 Mass. 123, 131 (1979), we are obliged to review the instructions pursuant to Section 33E to determine whether there is a " `substantial likelihood that a miscarriage of justice has occurred.' Commonwealth v. Roberts, 378 Mass. 116, 123 (1979). Commonwealth v. Burnett, 371 Mass. 13, 16 (1976)." Commonwealth v. Garcia, 379 Mass. 422, 439 (1980). [Note 12]

The defendant argues that the Madeiros language impermissibly lessens the government's burden of proof by creating in the minds of the jurors the possibility that guilt may be established by a general concern for public safety. Whatever the merits of that argument in general, it is not convincing in this case. On at least five occasions, the judge instructed the jury that the Commonwealth had the burden of proving beyond a reasonable doubt every essential element of the crimes. [Note 13] The judge also defined reasonable doubt in the language of Commonwealth v. Webster, 5 Cush. 295, 320 (1850). We, therefore, conclude that the defendant has not established that the Madeiros language created a substantial likelihood of a miscarriage of justice.

Nevertheless, we believe that "[t]he emotional overtones of [the Madeiros] rhetoric may be criticized as subtly encouraging a jury to accept less proof than it should, so that `the lawless' will not be `supreme,' " Bumpus v. Gunter, 635 F.2d 907, 911 (1st Cir. 1980), cert. denied, 450 U.S. 1003 (1981), and we repeat that "[e]xplanations of reasonable doubt are best made in close reliance on the time-tested language

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of Commonwealth v. Webster, 5 Cush. 295, 320 (1850)." Commonwealth v. Wood, 380 Mass. 545, 551 (1980), and cases cited.

c. Presumption of voluntariness. The defendant asserts that the judge erred when he instructed the jury that there is a presumption that a confession is voluntary. [Note 14] He claims that the judge's failure to instruct the jury that the Commonwealth has the burden of proving that a confession is voluntary is reversible error. Since the defendant did not object to the instructions on voluntariness, we review this claim to determine whether there is a " `substantial likelihood that a miscarriage of justice has occurred.' " Commonwealth v. Garcia, 379 Mass. 422, 439 (1980). We would only reverse on a showing of grave prejudice. Commonwealth v. Burnett, 371 Mass. 13, 16 (1976). See Commonwealth v. Coleman, 366 Mass. 705, 711 (1975).

Our "humane practice" requires that "when statements amounting to a confession are offered in evidence, the question whether they were voluntary is to be decided at a preliminary hearing in the absence of the jury. If he [the judge] is satisfied that they are voluntary, they are admissible; otherwise, they should be excluded. If the judge decides

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that they are admissible, he should then instruct the jury not to consider the confession if, upon the whole evidence in the case, they are satisfied that it was not the voluntary act of the defendant." [Note 15] Commonwealth v. Marshall, 338 Mass. 460, 461-462 (1959), and cases cited. See Commonwealth v. Chung, 378 Mass. 451, 456 (1979).

In the past, we have applied this "humane practice" only to confessions and not to admissions. [Note 16] See Commonwealth v. Gleason, 262 Mass. 185, 189-190 (1928); Commonwealth v. Jokinen, 257 Mass. 429, 430 (1926); Commonwealth v. Haywood, 247 Mass. 16, 18 (1923). However, "[w]e have in recent years questioned whether the same safeguards might not be required for inculpatory statements which fall short of a confession." Commonwealth v. Vick, 381 Mass. 43, 45 (1980). Commonwealth v. Garcia, 379 Mass. 422, 432 (1980). Commonwealth v. Fournier, 372 Mass. 346, 348 (1977). See P.J. Liacos, Massachusetts Evidence 322 (5th ed. 1981). We see no reason to distinguish between admissions and confessions and conclude that the "humane practice" applies to all incriminating statements made by the accused.

Extending our "humane practice" to admissions, we determine that the defendant has not shown a substantial likelihood of a miscarriage of justice. A judge has "no duty to ask the jury to pass on voluntariness unless it is made a live issue at trial." Commonwealth v. Alicea, 376 Mass. 506,

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523 (1978). Compare Commonwealth v. Cole, 380 Mass. 30, 40 (1980), with Commonwealth v. Brady, 380 Mass. 44, 53-55 (1980). See Commonwealth v. Pratt, 360 Mass. 708, 714-715 (1972); Commonwealth v. Preece, 140 Mass. 276, 277 (1885). At trial, the defendant failed to raise the issue of voluntariness, and the defendant requested no instructions on this issue. At no time did the defendant's testimony focus on the involuntariness of his statements. Rather, the defendant claimed that others had had the motive and opportunity to kill the victim. His testimony was substantially the same as the statement that he made to the police in the third interview. See note 7, supra. "[I]n these circumstances the judge was not obliged to submit the issue of voluntariness of the defendant's statements to the jury." Commonwealth v. Brady, 380 Mass. 44, 58 (1980) (Abrams, J., concurring).

Since the judge instructed the jury that there is a presumption that a confession is voluntary, we think it prudent to elaborate further our "humane practice." The presumption that a confession is voluntary merely places on the defendant the burden of going forward at the suppression hearing with evidence of involuntariness, see Commonwealth v. Harris, 371 Mass. 462, 471 n.3 (1976), and does not apply at trial. Moreover, even at the suppression hearing, this presumption disappears once the defendant has produced some evidence that the statement was involuntary.

Due process requires the Commonwealth to persuade the judge at the suppression hearing that the statement was voluntary before it is admitted in evidence at trial. See Jackson v. Denno, 378 U.S. 368 (1964); Commonwealth v. Harris supra. "[A] trial judge has a constitutional obligation to conduct a voir dire examination in the absence of the jury where the voluntariness of a confession is in issue and to make an affirmative finding of voluntariness before the jury are allowed to consider it." Id. at 469. This judicial determination of voluntariness is necessary because of the "prejudice inhering in the admixture of a determination of voluntariness together with the jury's inescapable consideration of reliability

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of the confession, and indeed ultimate guilt or innocence." Clifton v. United States, 371 F.2d 354, 362 (D.C. Cir. 1966), cert. denied, 386 U.S. 995 (1967) (Leventhal, J., concurring). See Pea v. United States, 397 F.2d 627 (D.C. Cir. 1967).

Under our "humane practice" the initial screening by the judge is the "basic determination safeguarding the accused." Clifton v. United States, supra (Leventhal, J., concurring). Thus we conclude that before any statement by a defendant to law enforcement officers or their agents may be placed before the jury, the Commonwealth must prove voluntariness beyond a reasonable doubt. [Note 17] If the judge concludes that the defendant's statements are voluntary beyond a reasonable doubt, that conclusion "must appear from the record with unmistakable clarity." Sims v. Georgia, 385 U.S. 538, 544 (1967). Commonwealth v. Harris, 371 Mass. 462, 472 n.4 (1976). Eisen v. Picard, 452 F.2d 860, 863 (1st Cir. 1971).

Finally, a defendant's statement is usually "the key item in the proof of guilt, and certainly one of overpowering weight with the jury." Clifton v. United States, 371 F.2d 354, 362 (D.C. Cir. 1966) (Leventhal, J., concurring). Therefore, if voluntariness is a live issue at trial, see Commonwealth v. Alicea, 376 Mass. 506, 523 (1978), the judge must instruct the jury that the Commonwealth has the burden of proving beyond a reasonable doubt that the statement was voluntary and that the jurors must disregard the statement unless the Commonwealth has met its burden. [Note 18]

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See Bradley v. Commonwealth, 439 S.W.2d 61, 64 (Ky. App. 1969), cert. denied, 397 U.S. 974 (1970). [Note 19]

3. Jury misconduct. After the instructions, four jurors were designated alternate jurors, and the remaining twelve began their deliberations. Approximately thirty minutes after the deliberations had begun, one of the alternates asked to speak to the judge. [Note 20] The alternate alleged that a female juror had told the others that the defendant had left school in the tenth grade because he was habitually in trouble and was jailed or arrested. The alternate also alleged that another female juror referred to blacks as "colored," and had called a black witness "Sapphire," [Note 21] a patently racist term.

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In the presence of counsel, the judge interviewed each of the deliberating jurors to determine if they heard the statement that the defendant had to leave school because he was in trouble. Not one of the deliberating jurors heard this remark. [Note 22] The juror who was alleged to have made this comment denied that she made the statement, and no other juror admitted making this statement. After completing this inquiry, the judge found that the defendant had not met his burden of proving that the jury were exposed to extraneous prejudicial information. But even if this statement were made, the judge found that it had no influence on the jury.

In the course of his inquiry, the judge also asked each juror whether a defense witness had been referred to as "Sapphire." Five jurors admitted hearing the term "Sapphire." The judge found that a defense witness had been called "Sapphire," but that this term had been used in a jocular manner without any racial prejudice which would affect the verdict. [Note 23]

The record supports these findings. All five jurors who heard the term "Sapphire," individually said that this term was understood as a joke, and that it did not affect their ability to render an impartial verdict. Further, the term "Sapphire" was used immediately after the jury heard the testimony of the witness who had been called "Sapphire," on the day before closing arguments and the judge's instructions. During deliberations, the jury requested additional instructions regarding the difference between unarmed robbery and larceny from the person. After receiving these instructions, the jury found the defendant guilty of the lesser charge of larceny from the person. Later, the judge denied the defendant's motion for a new trial because he concluded that the jurors had been concerned with legal principles and not racial prejudice.

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The defendant argues that in spite of the results of the inquiry, the fact that a racial slur had been used by a juror entitles him to a new trial and nothing less will suffice. We disagree. In Commonwealth v. Fidler, 377 Mass. 192, 200 (1979), we held that "if specific facts not mentioned at trial concerning one of the parties or the matter in litigation are brought to the attention of the deliberating jury by a juror, . . . such misconduct may be proved by juror testimony." Because a "right to use juror evidence necessarily implies a method to gather that evidence," we said that judges may supervise juror interviews to determine if extraneous prejudicial matters had reached the jury. [Note 24] Id. at 201. In authorizing these inquiries, we gave the judge broad discretion to make "such order as he deems appropriate for the administration of justice." Id. at 203.

Our decision in Fidler did "not permit evidence concerning the subjective mental processes of jurors." Commonwealth v. Fidler, 377 Mass. 192, 198 (1979). "[W]here the juror would testify solely to matters resting in his own consciousness," the value of such testimony is outweighed by the need to protect juror privacy. Id. In drawing a distinction between "overt factors and matters resting in a juror's consciousness," we recognized that "difficult cases" would arise. Id. The defendant's claim of racial bias is one of these cases. [Note 25]

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The Commonwealth has not argued that evidence of racial prejudice relates to the jurors' mental processes and thus is inadmissible under Fidler. Assuming, without deciding, that the judge acted properly when he asked each deliberating juror whether he had heard any racist comments, see State v. Levitt, 36 N.J. 266 (1961); People v. Castaldia, 51 Cal. 2d 569 (1959), we find no error. The judge interrogated the jurors and concluded that they could fairly and impartially render a verdict. The judge was "in the best position to judge the weight and credibility of the evidence." New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977). "There is no reason to give a judge's finding of fact less weight in [this] . . . context than we ordinarily would, i.e., we accept his finding unless clearly erroneous." Commonwealth v. Ciminera, 11 Mass. App. Ct. 101, 109, aff'd, 384 Mass. 807 (1981). "[A] finding of fact by the trial judge will not be deemed `clearly erroneous' unless the reviewing court on the entire evidence is left with the firm conviction that a mistake has been committed." New England Canteen Serv., Inc. v. Ashley, supra. Since a review of the entire record has not left us with a firm conviction that a mistake has been committed, the judge's denial of the defendant's motions is affirmed. In

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affirming the judge's rulings, we in no way condone or approve the use of racial slurs.

4. Variance between the bill of particulars and the proof offered at trial. The defendant claims that he was prejudiced by the variance between the bill of particulars and the proof offered at trial. Although he concedes that he knew that he was on trial for murder, the degree to be determined by the jury, the defendant says that the bill of particulars suggested that the Commonwealth would attempt to prove murder in the first degree only on the basis of deliberate premeditation and felony-murder and not extreme atrocity or cruelty. Thus, he claims that, when the Commonwealth introduced photographs of the victim to establish extreme atrocity or cruelty, he was surprised and unable to present an adequate defense. The defendant made no objection on this ground at trial, and this contention is not properly before us. We review this claim pursuant to G. L. c. 278, Section 33E.

In its particulars, the Commonwealth stated that it would prove that the homicide was committed by "assaulting and beating the victim with the intent to rob and kill" by means of his "hands, feet, shoes and clothes." Prior to trial, the defendant was furnished with copies of the autopsy report which indicated that the victim died from multiple severe blunt injuries. Further, the judge granted the defendant's motion to inspect the evidence in the possession of the Commonwealth, and that evidence included the photographs of the victim. Thus, the defendant was put on notice that the Commonwealth might introduce evidence on the issue of extreme atrocity or cruelty. See Commonwealth v. Whitehead, 379 Mass. 640, 646-647 (1980). We find no merit in the defendant's claim that he was surprised by the proof offered by the Commonwealth at trial.

5. Relief pursuant to G. L. c. 278, Section 33E. The court has the obligation pursuant to Section 33E to consider broadly the whole case on the law and the facts and "[u]pon such consideration the court may, if satisfied that the verdict was against the law or the weight of the evidence, . . . or for any

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other reason that justice may require (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt." G. L. c. 278, Section 33E, as amended through St. 1979, c. 346, Section 2. "The search under Section 33E is a . . . general and . . . obligatory one for a result that may be `more consonant with justice.' " Commonwealth v. Davis, 380 Mass. 1, 15 n.20 (1980), quoting Commonwealth v. Seit, 373 Mass. 83, 94 (1977). See Commonwealth v. Williams, 364 Mass. 145, 150 (1973). Our power, however is to be used with restraint. Commonwealth v. MacDonald, 371 Mass. 600, 604 (1976).

The only basis for the defendant's conviction of murder in the first degree is extreme atrocity or cruelty. [Note 26] The defendant correctly does not claim that the evidence of repeated blows to the victim's body could not sustain the verdict of murder in the first degree. Commonwealth v. Satterfield, 362 Mass. 78, 82 (1972) (crime committed with such savagery and brutality as to constitute murder committed with extreme atrocity or cruelty). Commonwealth v. McGarty, 323 Mass. 435, 440 (1948) ("Repeated violent blows have been held to evince such ferocity as would warrant a finding of extreme atrocity or cruelty"). Rather the defendant claims that the Commonwealth's best evidence against him is more consistent with a lesser degree of guilt than murder in the first degree. We agree.

Viewed in the light most favorable to the Commonwealth, the evidence shows that a fight erupted between the victim, the defendant, his cousin Keith, and Bookman. The fight was not a planned encounter, but was a spontaneous reaction to alleged insults by the victim toward the defendant, Keith, and Bookman. Additionally, the Commonwealth's experts indicated that some of the more savage blows were inflicted by the defendant's cousin Keith. See note 4, supra.

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Keith was convicted of murder in the second degree by a different jury. Although "mere inconsistency of the verdicts -- i.e., that one jury found [this defendant] guilty of murder in the first degree and another found [Keith] guilty of murder in the second degree -- is not ordinarily enough to impel us to exercise our powers under Section 33E," Commonwealth v. Pisa, 372 Mass. 590, 597, cert. denied, 434 U.S. 869 (1977), we believe that in this case, "the evidence of murder in the first degree as distinguished from that of murder in the second degree is much less persuasive." [Note 27] Id. at 598. See Commonwealth v. Vanderpool, 367 Mass. 743, 750-751 (1975).

Further, in deciding whether to "shade the verdict," we are entitled to give weight to the defendant's character. See Commonwealth v. Seit, 373 Mass. 83, 95 (1977); Commonwealth v. Vanderpool, 367 Mass. 743, 750 (1975). At the time of the killing, the defendant was seventeen, married, and the father of a young child. He had completed the tenth grade, was about to enter the armed forces, and had no prior convictions. In short, the defendant "was not a hoodlum or gangster." Commonwealth v. Seit, supra.

With all these factors in mind, we order the verdict reduced to murder in the second degree. The order denying the motion for a new trial is affirmed. We remand this case to the Superior Court where the verdict of guilty of murder in the first degree, and the sentence previously imposed, are to be vacated. A verdict of guilty of murder in the second degree is to be entered, and sentence is to be imposed thereon.

So ordered.