COMMONWEALTH vs. TU TRINH. [Note 1]

BOTSFORD, J. A jury in the Superior Court convicted the defendant of murder in the first degree on a theory of deliberate premeditation and of unlawful possession of a firearm. [Note 2] On appeal, the defendant argues that reversal of the murder conviction [Note 3] is warranted because (1) the consciousness of guilt instruction was improper; (2) the judge failed to instruct on the lesser included offense of voluntary manslaughter; (3) that failure, combined with the judge's instruction that malice could be presumed based on evidence of the use of a firearm, impermissibly relieved the Commonwealth of its burden of proving beyond a reasonable doubt every element of the crime; and (4) the prosecutor

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made prejudicial remarks in closing argument. We affirm the judgment of conviction and discern no basis to exercise our authority under G. L. c. 278, § 33E.

1. Facts. We summarize the facts as the jury reasonably could have found them, reserving recitation of certain facts to later portions of this opinion. On the night of January 23, 2001, two men, Quang Ly and his friend, the defendant, interrupted a Chinese New Year celebration at a home in the Dorchester section of Boston. Earlier that evening, Ly had gone by himself to the same home several times to collect a gambling debt owed him by one of the party guests, Tuan Dao, and Dao had paid the debt. Some of the partygoers were upset at Ly for his intrusions because they considered it bad luck to try to collect a debt on the new year.

When Quang Ly appeared at the doorway of the home with the defendant, a crowd of guests, including the victim, Sinh Tran, gathered. The victim addressed one of the two men, either the defendant or Ly, by name. A "little shoving match" ensued among the victim, the defendant, and Ly. No blows were exchanged, however, and the defendant and Ly eventually walked away from the house.

Dao followed the two men outside. [Note 4] He stood on the sidewalk, facing Ly. Although it was nighttime, the street was well lit by streetlights. Ly and Dao "exchanged words" with each other while the defendant watched from the sidewalk. The defendant asked Dao whether he had paid the money he owed to Ly, and Dao responded that he had. With that, Dao went back inside the home. Dao spoke to the victim, who was Dao's uncle and who wanted to "check to see who came to the house." Dao and the victim left the house, followed by several of their friends. Outside, Ly and the defendant were walking slowly away from the house. The victim approached the defendant and asked him what had happened. Not receiving an answer, the victim continued to ask the defendant what was going on and why had he come to the family's party to start trouble with the victim's younger relatives.

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The defendant stood silently with his hands in his pockets. As the victim came closer, however, the defendant pulled a gun from his pocket. Pointing it at the victim's head, the defendant pulled the trigger, but the gun did not fire. Seeing the gun, friends of the victim moved toward Ly and wrestled him to the ground. Guests inside the party could hear shouting and screaming outside. Meanwhile, the defendant moved from the sidewalk toward a fence next to the house, loaded the gun, and pointed it toward the victim. Simultaneously, Ly pulled a metal object from his pocket, but it dropped to the ground as party guests kicked and punched him. The defendant ran toward a van by which the victim was standing and fired a shot, hitting the victim in the back.

The victim's friends and family continued beating Ly. The defendant fired at least one more shot [Note 5] before managing to escape by means of a black vehicle that had arrived on the street directly after the shooting began. As the defendant entered the vehicle, the driver put his arm out the window and pointed a gun at the victim's friends who were holding Ly to prevent him from also escaping into the vehicle. At the street corner, the defendant jumped out of the vehicle long enough to fire more shots at the crowd and shout, "I have more ammo, and I'm going to kill you guys all."

Police and an ambulance arrived at the scene shortly thereafter. The victim was taken to a hospital, where efforts to save his life proved unsuccessful. Among the items the police recovered from the scene were one spent .22 shell casing, seven .380 shell casings, one .380 caliber bullet, a .38 revolver found underneath a car, a leather jacket, and cash. The cause of the victim's death was a gunshot wound.

2. Consciousness of guilt instruction. The defendant mounts a two-pronged attack on the judge's consciousness of guilt instruction: the evidence was insufficient to justify giving the instruction, and the instruction itself was erroneous. We disagree with both contentions.

With respect to the defendant's first point, because the defendant preserved his objection, our review asks whether giving the

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consciousness of guilt instruction amounted to prejudicial error. See Commonwealth v. Vick, 454 Mass. 418, 423 n.5 (2009).

"Consciousness of guilt instructions are permissible when there is an 'inference of guilt that may be drawn from evidence of flight, concealment, or similar acts,' such as false statements to the police, destruction or concealment of evidence, or bribing or threatening a witness." Commonwealth v. Stuckich, 450 Mass. 449, 453 (2008), quoting Commonwealth v. Toney, 385 Mass. 575, 584 & n.4 (1982). While evidence of actions suggesting consciousness of guilt alone are not sufficient to convict, a jury "may, but need not, consider such evidence as one of the factors tending to prove the guilt of the defendant." Commonwealth v. Toney, supra at 585.

The evidence showed that in the course of their investigation of the murder, police officers went to a residence at 35 Elton Street in Dorchester, where they observed a black Jeep Cherokee vehicle parked in front of the house. The registration plate on the vehicle was "6639MP." A witness had earlier told officers at the scene that the defendant fled in a vehicle with a registration plate that included the numbers "6639." The police placed the vehicle under "loose surveillance" [Note 6] for approximately one week, during which time the vehicle was not moved from its space in front of 35 Elton Street and no one was seen in the car. Subsequently, police officers seized the vehicle and obtained a warrant to search it. They recovered two prescription pill bottles in the defendant's name and a promissory note for an automobile loan bearing the defendant's name and signature.

Police officers also interviewed the owner of the house at 35 Elton Street. The owner had rented the first-floor apartment in the house to a man named "Tu" who drove a black Jeep, and who lived in the apartment with a woman and a child. The owner stated that he saw "Tu" before the Chinese New Year in 2001, but that after that time, he never saw "Tu" again. In the weeks following the murder, according to the owner, the apartment was abandoned together with all of the tenants' belongings.

The jury further heard evidence that the defendant was arrested in 2005 when he sought to enter the United States from

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Vietnam through the San Francisco airport. The defendant's signature on a document waiving extradition from California to Massachusetts resembled the defendant's signature on the promissory note recovered from the Jeep.

We agree with the judge that the "temporal connection" between the crime and evidence suggesting that the defendant abandoned his residence amply warranted giving the consciousness of guilt instruction. The evidence summarized above reasonably could have led a jury to conclude that the defendant fled from his "usual environs" because of his consciousness of guilt. See Commonwealth v. Toney, 385 Mass. at 583 ("Evidence that a person flees from . . . his usual environs may be probative of a consciousness of guilt regardless of whether he has actual knowledge that he is being sought by the police"). There was no error.

The defendant's second argument is that even if it were permissible to give the instruction, the specific language used by the judge amounted to reversible error. [Note 7] Because the defendant did not specifically object to the language of the consciousness of guilt instruction at trial, we review to consider whether the error,

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if any, created a substantial likelihood of a miscarriage of justice. [Note 8] See Commonwealth v. Serino, 436 Mass. 408, 419 (2002).

The judge should not have told the jury that they heard evidence about the defendant's state of knowledge. See Commonwealth v. Haraldstad, 16 Mass. App. Ct. 565, 570 (1983) ("It is error to instruct a jury on consciousness of guilt based on facts without reasonable support in the record"). There was no evidence to the effect that the defendant discovered he was about to be arrested and therefore fled. Indeed, nothing in the record suggested that the defendant even knew the police had begun to look for him when he left the apartment, never to return.

Nevertheless, the judge's error does not amount to reversible error. It occurred in the first part of a lengthy jury instruction on consciousness of guilt that was otherwise proper, see Commonwealth v. Toney, 385 Mass. at 585, and that was embedded in a comprehensive charge to the jury. See, e.g., Commonwealth v. Niemic, 427 Mass. 718, 720 (1998), quoting Commonwealth v. Galford, 413 Mass. 364, 371-372 (1992), cert. denied, 506 U.S. 1065 (1993) (appellate court reviews instructions as whole, considering adequacy "in light of their over-all impact on the jury"). Moreover, before giving the instruction on consciousness of guilt, the judge in her general charge instructed the jury that "[i]f your memory of the testimony differs from the attorneys or mine it's your collective recollection that controls when you go back to deliberate." When the brief improper reference noted above is considered in the context of the instructions as a whole and of the overwhelming evidence of the defendant's flight, we are satisfied 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).

3. Voluntary manslaughter. The defendant argues that the judge should have given an instruction on voluntary manslaughter based on a theory of provocation. He further contends that the judge's failure to give the instruction, combined with her instruction that the jury might infer malice from the intentional use

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of a dangerous weapon such as a firearm, shifted to the defendant the Commonwealth's burden of proving malice beyond a reasonable doubt, a violation of the defendant's due process rights. See Francis v. Franklin, 471 U.S. 307, 313-318 (1985). There was no error.

a. Manslaughter instruction. "Voluntary manslaughter is unlawful homicide arising not from malice, but 'from the frailty of human nature,' as in a case of 'sudden passion induced by reasonable provocation, sudden combat, or excessive force in self-defense.' " Commonwealth v. Carrion, 407 Mass. 263, 267 (1990), quoting Commonwealth v. Nardone, 406 Mass. 123, 130-131 (1989). For voluntary manslaughter under a theory of provocation, the provocative event must be one that would arouse "in an ordinary person such a state of passion, anger, fear, fright, or nervous excitement as would eclipse his capacity for reflection or restraint, and that . . . actually did produce such a state of mind in the defendant." Commonwealth v. Walden, 380 Mass. 724, 728 (1980). "Mere words generally do not constitute sufficient provocation to warrant an instruction on [manslaughter]." Commonwealth v. Vick, 454 Mass. 418, 429 (2009), and cases cited. With these principles in mind, we review the evidence in the light most favorable to the defendant.

We cannot agree with the defendant that the evidence demonstrated the shooting "occurred as some form of response to a direct threat upon the shooter's life." The fact that the police collected two different types of guns and several different caliber shell casings from the scene did not suggest that "deadly force" was directed toward the defendant, where the victim was unarmed and the witnesses testified to seeing only the defendant and the driver of the Jeep with firearms. [Note 9] There was no evidence of any action or a combination of action and words on the part of the victim (or anyone else) that reasonably would have provoked the defendant to draw a gun from his jacket, attempt unsuccessfully to shoot the victim, reload his gun, and then shoot the

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victim at close range. [Note 10] See Commonwealth v. Burgess, 450 Mass. 422, 438 (2008) ("Insults and arguments are insufficient provocation for manslaughter" [citation omitted]). See also Commonwealth v. Keohane, 444 Mass. 563, 567 n.2 (2005), and cases cited. [Note 11]

b. Due process. The defendant argues that the judge's failure to give a manslaughter instruction, together with the language of her instruction on the inference of malice, created "an impermissible presumption of [the] absence of heat of passion, despite the evidence to the contrary, in violation of the Due Process Clause." Because the defendant did not raise the issue at trial, we review the judge's actions to determine whether they created a substantial likelihood of a miscarriage of justice.

The judge's instruction that the jury could infer malice based on the use of a firearm, an inherently dangerous weapon, was proper. [Note 12] See Commonwealth v. Smith, 456 Mass. 476, 488 (2010) ("It was not error to instruct that one may infer an intent to kill from the use of a firearm"). [Note 13] See also Commonwealth v. Oliveira, 445 Mass. 837, 842-845 (2006) (permissible to instruct jury on inference of malice based on use of dangerous weapon [a knife] so long as words "you are permitted to infer" are used

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and judge does not compel jury to make this inference). Because the instruction itself was correct and, as previously discussed, the evidence in this case provided no basis for the judge to instruct the jury on voluntary manslaughter, we discern no impermissible burden shifting or other violation of the defendant's due process rights.

4. Closing argument. The defendant asserts that the prosecutor made a "series of improper and highly prejudicial remarks" during closing argument that amount to reversible error. Because the claims of error were preserved, we review each category to determine whether the prosecutor's remarks were improper and, if so, whether any improprieties were prejudicial. [Note 14] We analyze the defendant's claim "in light of the 'entire argument, as well as in light of the judge's instruction to the jury and the evidence at trial.' " Commonwealth v. Rodriguez, 437 Mass. 554, 565 (2002), quoting Commonwealth v. Lamrini, 392 Mass. 427, 432 (1984). Here, aside from the isolated remarks we discuss below, the argument properly concentrated on the evidence presented at trial; the closing taken as a whole was not improper. Commonwealth v. Sylvia, 456 Mass. 182, 193, 194 (2010).

First, we consider whether the prosecutor impermissibly vouched for the credibility of the witness Tuan Dao. In attempting to rebut defense counsel's focus on the inconsistencies between Dao's grand jury testimony and his testimony at trial, the prosecutor stated: "I mean, think about it, folks. You saw him. Do you think that he sometime became a pawn of the Boston police department? Did they put him up to say all that stuff so they can match it with their version of the case? With all due respect, the man was honest, but he couldn't organize a trip to the bathroom." Although the judge overruled defense

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counsel's immediate objection, following the prosecutor's argument, defense counsel asked for a curative instruction that the prosecutor could not vouch for Dao's honesty. The judge agreed and gave the curative instruction. [Note 15]

A prosecutor, of course, may not vouch for the credibility of his or her witness. See Commonwealth v. Wilson, 427 Mass. 336, 352 (1998). "Improper vouching can occur if an attorney expresses a personal belief in the credibility of a witness, or indicates that he or she has knowledge independent of the evidence before the jury." Id. Arguably, the prosecutor's statement about Dao might be seen to raise that possibility, but considered in context, we think it was likely understood as an inartful remark in passing that was intended to encourage the jury to consider all aspects of what they saw and heard from Dao in assessing his credibility, including any apparent limitations of Dao's intelligence. The prosecutor told the jury several times in the course of his closing that they as the fact finders should not take the Commonwealth's witnesses' testimony at face value but should consider it in light of corroborating evidence and what they observed of the witnesses' demeanor under oath. His use of the word "honest" was in connection with a lengthy discussion of the evidence the prosecutor claimed corroborated Dao's account. [Note 16] See Commonwealth v. Wilson, supra. In any event, the judge's direct and forceful curative instruction served to dispel any misimpression that use of the word "honest" in reference to Dao may have left on jurors. [Note 17] See Commonwealth v. Amirault, 404 Mass. 221, 232 (1989) ("judge correctly relied

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on curative instructions as an adequate means to correct any error and to remedy any prejudice to the defendant"). Contrast Commonwealth v. Silva-Santiago, 453 Mass. 782, 808 (2009).

We turn to the prosecutor's statements that allegedly shifted impermissibly the burden of proof to the defendant. Several times during the prosecutor's closing he encouraged the jury to consider why the defendant's trial counsel had failed in her closing argument to focus on events that occurred on the night of the shooting. [Note 18] The strong implication of these remarks was that the defense closing was avoiding grappling with adverse evidence.

We recently examined the issue of prosecutorial burden shifting during closing argument in Commonwealth v. Miranda, ante 100 (2010). There we noted that a prosecutor shifts the burden of proof when, for example, he or she calls the jury's attention to the defendant's failure to call a witness or witnesses, or when the prosecutor offers "direct comment on a defendant's failure to contradict testimony." Id. at 117, citing Commonwealth v. Amirault, 404 Mass. at 240. In each case, the prosecution is signaling to the jury that the defendant has an affirmative duty to bring forth evidence of his innocence, thereby lessening the Commonwealth's burden to prove every element of a crime. In

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contrast, it is not improper per se for a prosecutor to point out to the jury that cross-examination did not produce factual inconsistencies in the testimony of prosecution witnesses, even if such remarks imply that the defendant left material elements of the Commonwealth's evidence uncontested. Commonwealth v. Miranda, supra. See Commonwealth v. Cohen, 412 Mass. 375, 388 (1992) (prosecutor may critique defense counsel's trial tactics). Our scrutiny of the record persuades us the prosecutor's remarks fell into the permissible area of comments highlighting corroboration of credibility and consistency and did not cross over into burden shifting. Further, if there were any suggestion or implication of burden shifting in the prosecutor's remarks, the judge cured it when she interrupted the prosecutor's argument to remind the jury that the defendant has no obligation to present any evidence; emphasized the Commonwealth's burden multiple times during her jury instructions; and instructed the jury on two different occasions that closing arguments were not evidence. See Commonwealth v. Miranda, supra; Commonwealth v. Montez, 450 Mass. 736, 747 (2008). [Note 19]

The prosecutor's closing comments about the Boston police department, however, deserve separate attention. The prosecutor told the jury: "I'm not making light of this [alleged police investigative failure or incompetence] because I think this is not a serious situation, but to come in here and point the finger at the Boston police department because it's easy to do is just not fair and it's not right." The defendant's counsel promptly objected to the remark, was overruled, and then objected again at the close of the prosecutor's argument. [Note 20] See Commonwealth v. Grandison, 433 Mass. 135, 143 (2001) (improper for prosecutor "to suggest to the jury that it was impermissible for defense counsel to question the veracity of the police officers . . . .

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That is the essence of cross-examination"). Whether an error of consequence in closing argument is reversible "depends on our consideration of '(1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusions.' " Commonwealth v. Silva-Santiago, 453 Mass. at 807, quoting Commonwealth v. Perez, 444 Mass. 143, 151 (2005); Commonwealth v. Dagley, 442 Mass. 713, 725 (2004), cert. denied, 544 U.S. 930 (2005) (fourth factor "most important").

Here, the judge sufficiently mitigated any possible prejudice by giving the jury a specific curative instruction, [Note 21] which we presume the jury to have understood and followed. Commonwealth v. Sylvia, 456 Mass. 182, 195 (2010). Moreover, in light of defense counsel's repeated and vigorous exposure of alleged investigative irregularities, which she elicited through cross-examination, we do not believe that the error made any difference to the jury's conclusions. See Commonwealth v. Dagley, 442 Mass. at 725. [Note 22]

5. Review under G. L. c. 278, § 33E. Our review of the record pursuant to G. L. c. 278, § 33E, reveals one issue that requires

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brief discussion, but not reversal. The medical examiner who testified at trial was not the medical examiner who performed the autopsy and signed the death certificate. Some of the testimony was objectionable, although the defendant did not object. In particular, the testifying medical examiner's description of the original medical examiner's findings, as outlined in the autopsy report, was inadmissible testimonial hearsay. See Commonwealth v. Nardi, 452 Mass. 379, 393 (2008). The admission of this testimony does not warrant a new trial because the testifying medical examiner could permissibly and did testify as to his opinion of the cause of the victim's death, see, e.g., id. at 389-390; the cause of death in any event was not contested; and the eyewitness testimony concerning the shooting provided a sufficient factual basis for the medical examiner's opinion that the cause of the victim's death was a gunshot wound. See Commonwealth v. Pena, 455 Mass. 1, 15 (2009).

Judgment affirmed.