COMMONWEALTH vs. EMERY NUNES

ABRAMS, J. Convicted of murder in the first degree on a theory of extreme atrocity or cruelty, the defendant, Emery Nunes, appeals. The defendant asserts that the judge erred in admitting a statement of the deceased as a spontaneous utterance. He also asserts that the judge's instructions created a substantial likelihood of a miscarriage of justice. Finally, he contends that he was denied the effective assistance of counsel at trial. The defendant asks that we use our power pursuant to G. L. c. 278, s. 33E, to reduce the verdict to voluntary manslaughter. We affirm the convictions [Note 1]. We decline to exercise our power pursuant to G. L. c. 278, s. 33E, to enter a verdict of a lesser degree of guilt or to order a new trial.

1. Facts. The defendant does not dispute the fact that he killed his wife by stabbing her seventeen times. The defendant's claim was that, although he was criminally responsible, he lacked the ability to form malice aforethought.

We set forth the defendant's version of the facts. The defendant said he entered the family home through a window and hid. After the victim's children went to bed, he entered the bedroom. He intended to speak with the victim concerning their marital problems and ask her to seek joint marital counselling. He found the victim sitting in bed with her eyes closed. When the victim realized the defendant was in her bedroom, she asked him what he was doing there. He said that he told her that he loved her. According to the defendant, he begged the victim to talk with him. He then requested that they participate in counselling. The victim jumped up and told the defendant that he was

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crazy. He said that she pulled out a knife, which she kept in a drawer beside the bed, and told him that she intended to do what she wanted with whomever she wanted. She pointed the knife in his face and told him to leave or she would call the police. The defendant said that he then blacked out. The next thing he remembers is standing over the victim, her eyes wide open, and the sound of screaming.

2. Spontaneous utterance. The defendant challenges the admission of a statement of the victim under the excited utterance exception to the hearsay rule. Two days before her death, the victim arranged to meet Steven Kudzma, with whom she allegedly was having an affair. The victim and Kudzma separately went to a Dunkin' Donuts shop and parked in the parking lot. After the victim and Kudzma spoke inside his car, he left the car and entered the Dunkin' Donuts shop. From inside the shop, Kudzma saw a man approach the car and speak with the victim. Seconds later, Kudzma returned to the car. The victim was trembling, her eyes were wide open, and she had a panicked expression on her face. Kudzma asked her the identity of the man. Over objection, Kudzma testified that the victim identified the man as her husband and reported that "my husband said he's going to kill me because I'm having an affair [Note 2]." Three other witnesses testified that the defendant told them about confronting the victim in the parking lot. The defendant also testified to his version of the incident.

The statement at issue is the victim's statement that "my husband said he's going to kill me because I'm having an affair." The defendant argues that the admission of this evidence was an abuse of discretion and that its admission deprived him of his right of confrontation protected by the Sixth and Fourteenth Amendments to the United States Constitution and by art. 12 of the Massachusetts Declaration of Rights. We do not agree.

"A statement is admissible under the spontaneous utterance exception 'if its utterance was spontaneous to a degree which reasonably negated premeditation or possible fabrication and if it tended to qualify, characterize and explain the underlying event.' Commonwealth v. Whelton, 428 Mass. 24, 26 (1998), quoting Commonwealth v. Crawford, 417 Mass. 358, 362

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(1994). "[A]n utterance is spontaneous if it is made under the influence of an exciting event and before the declarant has had time to contrive or fabricate the remark, and thus it has sufficient indicia. of reliability." Commonwealth v. Zagranski, 408 Mass. 278, 285 (1990). Only in clear cases of an abuse of discretion will we alter a judge's ruling of admissibility. Whelton, supra; Crawford, supra.

Kudzma said that he returned to the car immediately after the defendant spoke to the victim. The influence on the victim of her conversation with the defendant was evidenced by her trembling, wide eyes, and panicked expression. The victim's statement tended to characterize and explain her perception of her encounter with the defendant. The victim believed that the defendant intended to kill her.

The defendant contends that the statement should not have been admitted because the exciting event underlying the victim's exclamation is proved only by the statement itself [Note 3]. We disagree. The statement itself may be taken as proof of the exciting event. See Commonwealth v. Whelton, supra at 27, citing Commonwealth v. Alvarado, 36 Mass. App. Ct. 604, 606 (1994). Moreover, there was additional evidence of the exciting event. Kudzma. testified that he saw the defendant speaking with the victim through the shop window. The defendant told three others, all witnesses at trial, about the encounter. And the defendant himself testified that he confronted the victim in the Dunkin' Donuts parking lot. We conclude that there was no error in the admission of the statement.

3. Jury instructions. The defendant takes issue with two aspects of the jury instructions. He first argues that the judge should have instructed the jury that the use of excessive force in self-defense is a basis for mitigation. He also argues that the judge erred in instructing on provocation. Although the defendant submitted proposed instructions on the use of excessive force in self-defense, he did not object at the close of the charge. The defendant also did not object to the provocation instruction. We therefore assess whether the instructions resulted in a substantial likelihood of a miscarriage of justice. Under

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G. L. c. 278, s. 33E, "a new trial is called for unless we are substantially confident that, if the error had not been made, the jury verdict would have been the same." Commonwealth v. Ruddock, 428 Mass. 288, 292 n.3 (1998). We conclude that a new trial is not required.

The evidence did not raise an issue of self-defense. The defendant therefore was not entitled to an instruction on manslaughter based on the use of excessive force in selfdefense. Commonwealth v. Carrion, 407 Mass. 263, 268 (1990). A self-defense instruction is required if the evidence, taken in the light most favorable to the defendant, raises a reasonable doubt whether "the defendant: (1) had reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm, from which he could save himself only by using deadly force, (2) had availed himself of all proper means to avoid physical combat before resorting to the use of deadly force, and (3) used no more force than was reasonably necessary in all the circumstances of the case." Commonwealth v. Souza, 428 Mass. 478, 486 (1998), quoting Commonwealth v. Torres, 420 Mass. 479, 492 (1995).

The defendant failed to take measures to avoid physical combat before resorting to deadly force. Commonwealth v. Hart, 428 Mass. 614, 616 (1999). From the defendant's own testimony, there was no evidence that the defendant was denied a means of escape. The defendant could have retreated by leaving the bedroom, as the victim requested he do, but he did not. Moreover, once the defendant was able to wrest the knife from the victim, any right to use self-defense terminated. The defendant could not have reasonably feared imminent death or serious bodily harm once he was in possession of the knife. See Commonwealth v. Pike, 428 Mass. 393, 398 (1998). Because the defendant had no right to self-defense, the, judge was correct in refusing to instruct the jury on the use of excessive force in self-defense.

The defendant's second complaint regarding the jury instructions is that the instruction on provocation diluted or shifted the burden of proof. The defendant argues that it was improper for the judge to employ "must have" and "must be" language in the instruction, which we have repeated in the margin [Note 4]. The defendant equates the "must have" and "must be" language

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with the "finding language" we rejected in Connolly v. Commonwealth, 377 Mass. 527 (1979). Our reasoning in Connolly was that "instructions telling the jury that they must find or be satisfied of a proposition, which the defendant 'claims,' would readily convey to them in comprehensible lay terms that it was the defendant who was required to wield the laboring oar." Id. at 534.

Throughout the instructions, the judge made it clear that the Commonwealth bore the burden of proof in order to convict the defendant. At the outset, the judge told the jury that the burden of proof was on the Commonwealth to prove the charge beyond a reasonable doubt and that the defendant did not have to prove his innocence or offer any evidence. The judge proceeded to describe the crime of murder in the first and second degrees and explained that murder requires malice aforethought. The judge instructed the jury at least ten times that malice aforethought requires a killing without mitigation. The judge concluded his explanation of mitigation by stating that "[t]o find the defendant guilty of murder, either first or second degree, the burden of proof is on the Commonwealth to prove beyond a reasonable doubt the absence of mitigation. . . . "

Relying on Commonwealth v. Acevedo, 427 Mass. 714, 716 (1998), the defendant argues that nowhere in the charge did the judge convey the idea that, if the evidence raised even the possibility that the defendant may have acted on reasonable provocation, the Commonwealth had to prove beyond a reasonable doubt that the defendant did not act on reasonable provoca-

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tion. See id [Note 5]. Although the judge did not convey that idea clearly, he did preface his explanation of mitigation by provocation by stating that, "[i]f there is evidence of mitigation, you should consider whether the defendant is guilty of the lesser offense of voluntary manslaughter." We note that the jurors' only question on the indictment charging murder was concerned with deliberate premeditation [Note 6]. We are substantially confident that, had the Acevedo instruction been given, "the jury verdict would have been the same." Commonwealth v. Ruddock, supra at 292 n.3.

4. Ineffective assistance of counsel. The defendant argues that his counsel failed to object to a series of questions requiring him to comment on the testimony of other witnesses. The Commonwealth concedes that it was improper to ask the defendant to testify to the credibility of other witnesses. See Commonwealth v. Triplett, 398 Mass. 561, 567 (1986). However, there were only three infractions in a cross-examination spanning over fifty pages of transcript. If the error had not been made, the jury verdict would not have been different [Note 7]. See Commonwealth v. Ruddock, supra at 292 n.3.

5. General Laws c. 278, s. 33E. The defendant argues that his age, his military service, his lack of a criminal record, his mental state, and his remorse afterward warrant a reduction to voluntary manslaughter. We are not a second jury. See Commonwealth v. Coonan, 428 Mass. 823, 831 (1999), and cases cited. We have reviewed the record and conclude that it does not warrant a reduction in the verdict or a new trial.

Judgments affirmed.