COMMONWEALTH VS. JOSE A. NIEVES

LYNCH, J. The defendant was convicted of murder in the first degree by reason of extreme atrocity or cruelty, and felony

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murder [Note 1]. On appeal, the defendant claims that (1) the trial judge erred in failing to give the jury a "humane practice" instruction, sua sponte; (2) the judge improperly denied his motion for a new trial based on ineffective assistance of counsel; (3) defense counsel rendered ineffective assistance; and (4) the judge erred in admitting a photograph of the victim's body. Additionally, he requests that we exercise our power under G. L. c. 278, s. 33E, to reduce his conviction or to set aside the verdict. We affirm the conviction and the denial of the motion for a new trial and decline to exercise our power under G. L. c. 278, s. 33E.

Facts. We summarize the evidence construed in the light most favorable to the Commonwealth. The victim was twelve years old at the time of the murder. On the night of April 14, 1993, the victim's mother worked the night shift and arranged for the defendant to babysit.

The defendant was playing cards with the victim in the victim's bedroom. The defendant told the victim that he was going to kill her mother because she had given him AIDS. The victim told the defendant that she was going to tell her mother. The defendant went to the kitchen, picked up a kitchen knife, and returned to the victim's bedroom where he proceeded to rape her. He then stabbed the victim four times in the head and neck with the kitchen knife. The victim did not die immediately and began screaming. The defendant then suffocated the victim by shoving his fingers down her throat. After the victim was dead, he placed her body in a bedroom closet. The following day the victim's body was discovered in the closet.

An autopsy revealed that the cause of death was either strangulation, suffocation, or a combination of the two. The doctor who performed the autopsy believed that the victim had suffered for twenty to thirty minutes before she died. There was also evidence that the victim's vagina had been penetrated.

The defendant's statements. The defendant moved to suppress statements he made claiming that he was under the influence of drugs during the first police interview, and that he was experiencing drug withdrawal during the second police interview. After a hearing on the defendant's motion to suppress, the motion judge denied the motion and made the follow-

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ing findings. On April 16, 1993, two State police officers, Trooper Francis Leahy and Trooper Dagoberto Martin Driggs, were assigned to investigate the case and went to the victim's mother's apartment where they saw the victim's body in the closet of the back bedroom. The police officers received information that the defendant had been with the victim on the night of April 14 through April 15.

Shortly after 10 P.m., the defendant was first questioned by Trooper Driggs and Trooper Leahy at the State police barracks in Leominster. Both the defendant and Trooper Driggs speak Spanish as their primary language. At the beginning of the interview, the officers informed the defendant who they were and what the purpose of the interview was. Trooper Driggs advised the defendant fully of his Miranda rights, both in Spanish and English. The defendant acknowledged, both in Spanish and English, that he understood his rights and did not request an attorney. At first, the defendant denied being with the victim during the approximate time of the murder. The defendant changed his story, however, when Trooper Driggs informed him in Spanish that a number of witnesses told the officers that the defendant had been with the victim on the night of her death. The defendant then admitted that he had stabbed and strangled the victim because he was angry with her mother. After a series of questions, some of the questions and responses were reduced to writing in English [Note 2].

At the end of the interview, Trooper Driggs went over the entire statement with the defendant in both English and Span-

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ish. The defendant read the statement out loud in English, indicated it was correct, and signed various parts of the statement. Throughout the interview the defendant was not restrained and he appeared to be normal. There was no indication of the defendant being under the influence of alcohol or drugs. After the interview, the defendant was taken into custody.

On April 18, 1993, in response to the defendant's request, Trooper Driggs went to the Worcester County house of correction and spoke with the defendant again. Again, the defendant was advised of his Miranda rights. During the second interview, the defendant stated that he was angry with the victim's mother because she had given him AIDS, and described in detail how

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he shoved his fingers down the victim's throat and suffocated her for twenty to thirty minutes. This statement was also reduced to writing [Note 3].

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At trial, Trooper Driggs read the defendant's confessions to the jury. The defendant testified on his own behalf. The theory of the defense was that the defendant had falsely confessed to the murder as part of an agreement with the victim's mother because he had AIDS and wanted the victim's mother to take care of his son when he died.

1. The voluntariness of the statements. The defendant claims that the trial judge's failure to give a "humane practice" instruction, sua sponte, created a substantial likelihood of a miscarriage of justice. The defendant concedes that his drug use or drug withdrawal was not directly argued at trial, but claims that testimony at trial concerning his drug use and withdrawal during the period preceding his arrest and confessions made the voluntariness of his confessions a "live issue [Note 4], [Note 5].

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We conclude that the issue of voluntariness was insufficiently raised to require the judge to give a humane practice instruction. See Commonwealth v. Tavares, 385 Mass. 140, 150, cert. denied, 457 U.S. 1137 (1982), quoting Commonwealth v. Alicea, 376 Mass. 506, 523 (1978) (judge has no obligation to instruct jury on issue of voluntariness "unless it is made a live issue at trial"). The defense did not focus on involuntariness. On the contrary, the focus of the defense was that the defendant intentionally confessed to the murder as part of an agreement with the victim's mother. See Commonwealth v. Brady, 380 Mass. 44, 51 (1980) (where defendant claimed voluntariness issue was raised because of evidence that he had been drinking, issue not live where focus of defense was alibi and evidence of intoxication not substantial). A claim of involuntariness would have contradicted the defendant's theory of defense. In fact, the mere assertion that the defendant contrived the entire story, provided specific details of how the victim was murdered, and related these events in a coherent rational manner is inconsistent with the claim that his confessions were involuntary because of drug or alcohol intoxication. For the jury to accept his explanation for his confessions requires the belief that the defendant knew what he was doing. Indeed, the defendant testified at trial that he had lied in order to confuse the officer. He also testified that he is "in control" when he is on drugs. Moreover, evidence of drug use or withdrawal alone does not render an otherwise valid confession involuntary. See Commonwealth v. Paszko, 391 Mass. 164, 176 (1984); Commonwealth v. Fielding, 371 Mass. 97, 112 (1976). While there was evidence of the defendant's

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drug dependency and possible drug withdrawal, we conclude that the issue of voluntariness was not "raised with sufficient point to require an express admonition to the jury by the Court [on its own motion]." Commonwealth v. Brady, supra at 55, quoting Commonwealth v. Pratt, 360 Mass. 708, 714-715 (1972). See Commonwealth v. Harris, 371 Mass. 462, 471 n.3 (1976) (under humane practice doctrine, jury reconsideration is required whenever credible evidence of involuntariness is put before jury). In these circumstances, there was no substantial likelihood of a miscarriage of justice despite the judge's failure to give a humane practice instruction, sua sponte, because the judge was not obligated to do so. See Commonwealth v. Burke, 414 Mass. 252, 259-260 (1993).

2. Denial of the motion for a new trial. The defendant argues that the judge abused her discretion by denying his motion for a new trial based on ineffective assistance of counsel. The defendant claims that his trial counsel failed aggressively to pursue the issue of the defendant's drug use and drug withdrawal as it concerned the voluntariness of his confessions, by refusing to let him testify, and by waiving oral argument at the suppression hearing. He contends that this decision deprived him of a substantial ground of defense.

The decision to allow a motion for a new trial lies within the sound discretion of the judge and will not be reversed unless it is manifestly unjust or unless the trial was infected with prejudicial constitutional error. See Commonwealth v. Hung Tan Vo, 427 Mass. 464, 467 (1998), citing Commonwealth v. Figueroa, 422 Mass. 72, 77 (1996); Commonwealth v. Russin, 420 Mass. 309, 318 (1995). Here, because the defendant was convicted of murder in the first degree, we review these allegations under the substantial likelihood of a miscarriage of justice standard required by G. L. c. 278, s. 33E, a standard more favorable to a defendant than is the constitutional standard for determining ineffective assistance of counsel. Commonwealth v. Mitchell, 428 Mass. 852, 854 (1999). Under that standard of review, we need not focus on the adequacy of trial counsel's performance, but rather examine "whether there was an error . . . (by defense counsel, the prosecutor, or the judge) and, if there was, whether that error was likely to have influenced the jury's conclusion." Commonwealth v. Mello, 420 Mass. 375, 393 (1995), quoting Commonwealth v. Wright, 411 Mass. 678, 682(1992).

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At the hearing on his motion for a new trial, the judge rejected the defendant's contention that his trial counsel rendered ineffective assistance in his decision not to let the defendant testify at the suppression hearing. The judge found that defense counsel's explanation that he did not want to open the defendant up to impeachment at trial and did not want to reveal the defense strategy by allowing the defendant to testify at the suppression hearing was not unreasonable [Note 6]. The motion judge was also the trial judge and her conclusion is entitled to special deference. Commonwealth v. Figueroa, supra, citing Commonwealth v. Dascalakis, 246 Mass. 12, 32-33 (1923). We agree with the judge's conclusion and find no error. Moreover, trial counsel's waiver of oral argument at the conclusion of the hearing on the new trial motion was not manifestly unreasonable.

3. Ineffective assistance of counsel. The defendant further argues that his trial counsel was ineffective in failing to request a humane practice instruction, in abandoning at trial the issue of voluntariness of the defendant's confessions, and in his closing argument.

Because we have concluded that a humane practice instruction was not required and would have been inconsistent with the theory of the defense, his arguments in regard to his confessions are unavailing. Commonwealth v. Wright, supra.

The defendant also contends that his trial counsel's comments created a substantial likelihood of a miscarriage of justice because he contends they could have caused the jury to ignore the judge's instructions, particularly concerning the burden of proof and the presumption of innocence. He points to defense counsel's preliminary comments at the start of his summation, where he stated:

"Now, I could stand up here and give you this rigmarole or business about the law, the burden of proof, and he is presumed innocent, and you should remember that, and her Honor is going to instruct you about that. The defendant has no burden to get up on the stand and tell his case or prove he is innocent. That burden is on the Commonwealth to prove it beyond a reasonable doubt to a

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moral certainty. But let's be realistic, you either believe him or you don't, and that's what this case is all about. And I suggest that you should."

We review defense counsel's comments to determine whether any alleged error was likely to have influenced the jury's conclusion. Commonwealth v. Mello, supra at 393. "Remarks made during closing arguments are considered in the context of the entire argument, and in light of the judge's instructions to the jury and the evidence at trial." Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231 (1992), and cases cited.

Defense counsel focused on the weaknesses of the prosecutor's case and the strengths of the defense and suggested to the jury that they believe the defendant's version of the events. Defense counsel closed by arguing that the jury could not be morally certain of the defendant's guilt. Furthermore, in light of the judge's careful instructions to the jury explaining the presumption of innocence and the Commonwealth's burden of proof, it does not appear likely that defense counsel's remarks influenced the jury's verdict.

4. Admission of the photograph. The defendant contends that the judge erred in admitting a photograph depicting the victim's body as it was discovered in a closet of her home.

"The admission of photographs is committed to the sound discretion of the trial judge, and we have rarely reversed a conviction because of the introduction of photographs of a victim." Commonwealth v. Meinholz, 420 Mass. 633, 635 (1995). "Whether the photograph[] [was] 'so inflammatory in nature as to outweigh [its] probative value and preclude [its] admission is a question to be determined by the trial judge in the exercise of [her] sound discretion.' " Commonwealth v. Ramos 406 Mass. 397, 407 (1990), quoting Commonwealth v. D'Agostino, 344 Mass. 276, 279 (1962). Here, the judge did not abuse her discretion in determining that the probative value of the photograph outweighed any possible prejudicial effect. The photograph depicted the victim's body crouched in a closet, wrapped in a blanket with a sneaker placed on top of her, which corroborated the details of the defendant's confessions. Thus, the photograph was probative on the issue of the defendant's credibility where he claimed that he had falsely confessed as part of an agreement with the victim's mother. Commonwealth v. Merola, 405 Mass. 529, 544-545 (1989). It was also probative of consciousness of guilt. Commonwealth v. Meinholz, su

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pra at 636 (photographs depicting how victim's body was encased in plastic and tied up with rope before being buried in defendant's cellar were found relevant to issue of extreme atrocity or cruelty, deliberate premeditation, and consciousness of guilt), and cases cited. Consequently, there was no error.

5. Relief under G. L. c. 278, s. 33E. The defendant requests that we order a new trial or reduce his verdict. We have reviewed the entire record pursuant to G. L. c. 278, s. 33E, and conclude that a reduction in the verdict or a new trial is not required.

Judgment affirmed.

Order denying motion for a new trial affirmed.