text:
    Michael THOMANN v. BOARD OF REGISTRATION OF REAL ESTATE BROKERS AND SALESMEN.
    SJC-12360
    Supreme Judicial Court of Massachusetts.
    December 10, 2018
    The case was submitted on briefs.
    Michael Thomann, pro se.
    Maura Healey, Attorney General, & Kimberly A. Parr, Assistant Attorney General, for Board of Registration of Real Estate Brokers and Salesmen.
    RESCRIPT
    Michael Thomann, a licensed real estate broker, appeals from the judgment of a single justice of this court affirming a decision of the Board of Registration of Real Estate Brokers and Salesmen (board) suspending Thomann's license for ten days. We affirm.
    1. Proceedings before the board of registration. In October 2014, the board initiated adjudicatory proceedings against Thomann, alleging that he had engaged in the business of real estate brokering through an unlicensed limited liability company, in violation of 254 Code Mass. Regs. § 2.00(11) (2013) and 254 Code Mass. Regs. § 3.00(14)(e) (2005) ; and had failed to provide a certain notice of agency disclosure to the seller of real property, in violation of 254 Code Mass. Regs. § 3.00(13)(a) (2005). The board asserted, on the basis of those violations, that discipline was warranted pursuant to G. L. c. 112, § 61. Thomann denied the allegations against him; asserted that he had conducted his real estate brokering activities through a properly registered business or trade name; and alleged that it was his routine business practice to provide his clients with a specific form of agency disclosure. Over Thomann's opposition, an administrative hearing officer eventually granted the board's motion for a summary decision, concluding that there were no genuine issues of material fact in dispute and that the alleged violations had been established. See 801 Code Mass. Regs. § 1.01(7)(h) (1998). The parties, through counsel, then submitted memoranda in lieu of a sanctions hearing.
    The hearing officer's tentative decision, which referenced her summary ruling, determined that the violations had been proved and concluded that a sanction against the respondent's license was therefore warranted. See 801 Code Mass. Regs. § 1.01(11)(c) (1998). Thomann, both individually and through his attorney, filed written objections. The board's final decision, dated September 15, 2016, considered Thomann's objections and adopted the tentative decision with certain modifications. It ordered suspension of Thomann's license for ten days, beginning on October 3, 2016, with reinstatement conditioned on his written certification that he did not practice during the period of suspension; payment of a $1,200 civil administrative penalty; and submission of an application for an appropriate license for Thomann's limited liability company or a certification that the company had been dissolved. See G. L. c. 112, §§ 61, 65A. The board's decision notified Thomann that he could appeal from the decision either by filing a petition for judicial review in the Superior Court within twenty days of his receipt of the decision, pursuant to G. L. c. 112, § 87BBB, or by filing a petition for review in the county court within thirty days, pursuant to G. L. c. 112, § 64.
    On October 19, 2016, Thomann filed a motion in the county court seeking an extension of time to file a petition there, and representing that he received the board's final order on September 30, 2016. The clerk of the county court treated this motion as a petition for review under G. L. c. 112, § 64, and docketed it as such. After the board filed the administrative record and both parties filed their briefs, the single justice affirmed the board's final decision and denied all other requests for relief. This appeal followed.
    2. Procedure for judicial review. Judicial review of the final decisions of many boards of registration is properly sought by filing a petition in the county court within thirty days of the receipt of notice of the decision. This procedure is established by G. L. c. 112, § 64, and by G. L. c. 30A, § 14 (7). See, e.g., Hamel v. Board of Registration of Funeral Directors & Embalmers, 449 Mass. 1008, 1009, 867 N.E.2d 319 (2007) ; Friedman v. Board of Registration in Med., 414 Mass. 663, 664 & n.1, 609 N.E.2d 1223 (1993). The board in this case, at the end of its written decision, informed Thomann that he could proceed in that fashion, and that is essentially what he did. The single justice also decided the matter under those statutes.
    In the case of this particular board, however, another statute applies. General Laws c. 112, § 87BBB (C), states, with respect to decisions of this board, that any person aggrieved by the decision "may appeal to the superior court sitting in equity for the county wherein he resides or has his principal place of business, or to said court sitting in equity for the county of Suffolk" (emphasis added). The statute requires the appeal to be filed in the Superior Court within twenty days of receipt of notification of the board's decision; authorizes the Superior Court to hear all the pertinent evidence and to determine the facts; and authorizes the Superior Court to annul the board's decision if it exceeded the board's authority or to grant other relief as justice and equity may require. Id. Significantly, § 87BBB (C) then also states that "[t]he foregoing remedy shall be exclusive," and further provides that, from the decision of the Superior Court, "the parties shall have all rights of appeal and exception as in other equity cases" (emphasis added). Id. Thus, the statute specific to this particular board, § 87BBB, unlike the more generic statute applicable to boards of registration generally, G. L. c. 112, § 64, identifies the Superior Court, not this court, as the forum for judicial review, and states that this remedy "shall be exclusive."
    The notice given by the board at the end of its written decision in this case appeared to give the parties two options for obtaining judicial review of the decision. It informed them that they could proceed either in the county court, pursuant to § 64, or in the Superior Court, pursuant to § 87BBB. That appears to us to be at odds with the plain language of § 87BBB (C), which states that the remedy provided therein shall be exclusive. We encourage parties in future cases to pursue their appeals from this particular board in the Superior Court, pursuant to § 87BBB (C) (see, e.g., Rao v. Board of Registration of Real Estate Brokers & Salesmen, 13 Mass. App. Ct. 922, 922, 430 N.E.2d 867 [1982] ), and we invite the board to consider clarifying its notice so that it is consistent with the language of § 87BBB (C), namely that the remedy provided therein "shall be exclusive."
    Even though we believe that Thomann should have sought judicial review in the Superior Court under § 87BBB, and not in the county court directly under § 64, we shall proceed to consider his appeal. The single justice clearly had the authority to transfer the matter that was commenced in this court to the Superior Court; and, vice versa, had it been commenced in the Superior Court, as we believe it should have been, she clearly would have had the authority to transfer it here. See G. L. c. 211, § 4A. See also Beres v. Board of Registration of Chiropractors, 459 Mass. 1012, 1013, 947 N.E.2d 569 (2011).
    3. Correctness of the board's decision and sanction. The single justice reviewed the record before her, including the pleadings and the administrative record filed by the board, and affirmed the board's final decision and order. We agree with the single justice that there was no error in the board's decision. See Weinberg v. Board of Registration in Med., 443 Mass. 679, 685, 824 N.E.2d 38 (2005) (under G. L. c. 30A, § 14 [7], court "reviews the decision of the board directly, despite this matter being brought as an appeal of a decision of the single justice").
    a. Facts. We summarize the facts stated by the hearing officer, as modified and adopted by the board, reserving other facts for later discussion. We conclude that the findings were supported by substantial evidence. See Weinberg, 443 Mass. at 685, 824 N.E.2d 38.
    Thomann is the sole manager of Boston International Group, LLC (LLC), a Massachusetts limited liability company. Its certificate of organization represented publicly that it would engage in business including "commercial real estate." It does not have its own real estate broker's license. See G. L. c. 112, § 87UU ; 254 Code Mass. Regs. § 2.00(11) (2013). The board found that, "[o]n or about January 3, 2013, Boston International Group, LLC, [doing business as] Boston International Group, entered into a Marketing Agreement for Exclusive Right to Sell (the 'Marketing Agreement') real property located at 167 Revere Beach Parkway in Chelsea, Massachusetts (the 'Property')." Although the marketing agreement identified only "Boston International Group" and not "Boston International Group, LLC," as the "Broker," substantial evidence supports the board's finding that the LLC was both a party to the agreement and the entity that was actively engaged in the real estate brokering activities for the property. See Duggan v. Board of Registration in Nursing, 456 Mass. 666, 674, 925 N.E.2d 812 (2010). In addition, in August 2013, the LLC (identifying itself in its complaint as "Boston International Group, LLC[, doing business as] The Boston International Group, Ltd") commenced an action in the Superior Court against the other parties to the marketing agreement, alleging breach of the agreement and seeking payment of a brokerage commission to the LLC. The complaint averred:

      The board, so named, is established by G. L. c. 13, § 54. The board refers to itself as the "Board of Registration of Real Estate Brokers and Salespersons."

      The board additionally alleged that Thomann assumed duties and responsibilities of a business entity engaged in the real estate brokering business without adequate preparation or competency, in violation of 254 Code Mass. Regs. § 3.00(14)(e), by failing to comply with certain liability insurance requirements. See 254 Code Mass. Regs. § 2.00(12) (2013). Although the hearing officer determined that the violation had been established, the board did not consider it a separate violation for purposes of sanction. The violation was not challenged on appeal, and we do not address it further.

      The tentative decision did not repeat all of the facts and conclusions of law on which the summary ruling was based. It did, however, expressly provide that "the Ruling on Summary Decision established liability in this forum."

      Contrast G. L. c. 112, § 84A, which governs decisions of the Board of Registration in Embalming and Funeral Directing. That statute, like § 87BBB, also identifies a procedure other than a petition in the county court under G. L. c. 112, § 64, as a means of obtaining judicial review. It states that judicial review may be obtained by filing a petition in the District Court within ten days of the board's decision. Unlike § 87BBB, however, § 84A states that the District Court procedure provided therein "is in the alternative to that provided by [§ 64 ], and a decision of the court upon a petition brought under [§ 84A ] shall be final and conclusive" (emphasis added). A party aggrieved by a decision of the Board of Registration in Embalming and Funeral Directing thus can proceed in one of two ways: either in the county court pursuant to § 64, or in the District Court pursuant to § 84A. See Hamel v. Board of Registration of Funeral Directors & Embalmers, 449 Mass. 1008, 1009 n.1, 867 N.E.2d 319 (2007).

      If the Legislature believes that we have misconstrued what appears to us to be the plain language and purpose of § 87BBB (C), it is, of course, free to clarify the statute accordingly.

      As stated, actions commenced in the Superior Court in accordance with § 87BBB (C) must be brought within twenty days of receipt of notice of the board's decision in order to be timely, whereas actions commenced in the county court pursuant to § 64 must be brought within thirty days. Thomann represents that he received the final decision on September 30, 2016, and there is nothing to suggest he received any earlier notice.

      Like the single justice, we decline to consider evidence that was not before the board. See G. L. c. 112, § 64 (incorporating standards of review provided in G. L. c. 30A, § 14 [3]-[7] ); G. L. c. 112, § 87BBB (C) (on appeal, reviewing court shall hear all "pertinent evidence"). See also Doe, Sex Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd., 459 Mass. 603, 630, 947 N.E.2d 9 (2011) (judicial review of administrative agency decision confined to administrative record).

   "5. On January 3, 2013, the Defendants, Nobrega's Inc. and Robert J. Nobrega, individually and as agent of the [Nobrega Nominee] Trust, and the Plaintiff, entered into an Exclusive Right to Sell Agreement (hereinafter 'the Agreement'), regarding the sale of the Property owned by the Trustee Defendants located at 167 Revere Beach Parkway, Chelsea, Massachusetts.
" ...
"10. Under the Exclusive Right to Sell Agreement, the Defendants, Nobrega's, Inc. and Robert J. Nobrega, individually and as Trustee of the Nobrega Nominee Trust are obligated to pay the Plaintiff a brokerage commission ( [six percent] ) upon the sale of Defendant's property during the term of the agreement."

In its answer to a counterclaim filed by the defendants, the LLC also expressly admitted the allegation that "Boston International Group, Boston International Group, Ltd., and Boston International Group, LLC, are not duly licensed as ... real estate brokers."

b. Conducting brokering activities through unlicensed entity. The gravamen of Thomann's argument is that he performed all of the brokering activity under his individual real estate broker's license using his business name, "Boston International Group," and not through the LLC.

On the evidence before it, however, the board was warranted in concluding, as it did, that Thomann had actually engaged in the business of real estate brokering through the LLC (which had no license) without first obtaining a separate license for the LLC, in violation of 254 Code Mass. Regs. §§ 2.00(11) and 3.00(14)(e). That conclusion was supported by substantial evidence.

The LLC's certificate of organization indicates that Thomann is its sole manager. The LLC's business was described in this public filing to include services related to "commercial real estate" and "any activities directly or indirectly related thereto." Additionally, in a draft fee agreement for the transaction in this case, Thomann had presented the LLC and himself to the client as the "Seller's Agent," and outlined the fee for services due on the sale of property. A notation on the agreement indicates that it was provided to the client. Further, when the dispute later arose, the lawsuit was commenced against the client in the LLC's name demanding payment of a real estate brokerage fee; in the same action, the LLC acknowledged that it was not licensed to engage in the real estate business. The board did not err in concluding that Thomann's conduct -- acting through the unlicensed LLC to broker the sale of the property -- violated 254 Code Mass. Regs. §§ 2.00(11) and 3.00(14)(e).

c. Notice of agency disclosure. On appeal, Thomann also challenges the determination that he violated the agency disclosure requirements of 254 Code Mass. Regs. § 3.00(13)(a). That regulation requires real estate brokers to provide prospective purchasers and sellers of real estate with "a notice developed and approved by the board which clearly discloses the relationship of the broker or salesperson with the prospective purchaser or seller of the real estate ... at the time of the first personal meeting between the prospective purchaser or seller and the broker or salesperson for the purpose of discussing a specific property" (emphasis added). Id.

In the summary decision ruling, the hearing officer determined that there was no evidence that Thomann gave the board-approved agency disclosure notice to the seller of the property that was the subject of the marketing agreement. Although Thomann asserted -- without a supporting affidavit or other evidence -- that he had in fact provided notice, the sample agency disclosure form he claimed to have provided to his real estate clients differed in material respects from the form approved by the board. The hearing officer also found that Thomann failed to provide the form to the client at the appropriate time, i.e., in 2013, at the time the LLC entered into the marketing agreement and undertook to provide broker services, and that he failed to retain a copy of the form for the time period required by the regulations. See 254 Code Mass. Regs. § 3.00(13)(a)(1) (three years from date of notice). There was substantial evidence in the record to support the finding of a violation in this respect.

d. Other claims of error. On appeal, Thomann also raises assorted other claims. He contends that the board failed to reasonably accommodate his alleged disability, and otherwise violated his right to due process. He also claims that he was denied the assistance of legal counsel. While we do not address each of his claims specifically, we have reviewed each of them and find them without merit. With respect to the right to counsel, the record indicates that Thomann was in fact represented by multiple attorneys during the course of the administrative proceedings, and that he discharged his attorney after objections to the tentative decision had been filed. The record also demonstrates that Thomann was given multiple extensions of time to file materials at various stages of the proceedings. With respect to his claim of disability, there is nothing in the administrative record to suggest that Thomann requested or was denied any reasonable accommodation by the board, or that he substantiated any such claim. In sum, the record amply supports the conclusion that the proceedings before the board comported with due process requirements. See, e.g., Langlitz v. Board of Registration of Chiropractors, 396 Mass. 374, 377, 486 N.E.2d 48 (1985).

4. Sanction. Once statutory or regulatory violations have been established, the administrative agency has discretion in determining the appropriate sanction. See G. L. c. 112, §§ 61, 65A. On appeal, we consider only whether the sanction imposed was a reasonable exercise of that discretion. See Sugarman v. Board of Registration in Med., 422 Mass. 338, 347-348, 662 N.E.2d 1020 (1996). See also Vaspourakan, Ltd. v. Alcoholic Beverages Control Comm'n, 401 Mass. 347, 355, 516 N.E.2d 1153 (1987). A reviewing court will not interfere with the agency's imposition of a penalty except in the most extraordinary circumstances. Id. No such circumstances are present here.

In this case, we conclude that the board reasonably exercised its discretion when it sanctioned Thomann. The $1,200 civil administrative penalty was within the range permitted by statute. See G. L. c. 112, § 61 ; G. L. c. 112, § 65A. "Given that the range of penalties is for the agency, the fact that the [board] imposed more lenient penalties for similar violations in the past does not render the sanctions against [Thomann] arbitrary or capricious." BAA Mass., Inc. v. Alcoholic Beverages Control Comm'n, 49 Mass. App. Ct. 839, 849, 733 N.E.2d 564 (2000). The ten-day suspension given to Thomann is actually less than the period imposed by the board for similar violations in other cases, and is reasonable in the circumstances of this case. With respect to the requirement that Thomann either obtain a real estate brokering license for the LLC or certify that the LLC has been dissolved, we conclude that that requirement is also reasonable, particularly in light of the business purposes articulated in the LLC's certificate of organization.

5. Conclusion. For all of these reasons, we agree with the single justice that the board's decision suspending Thomann's license for ten days, imposing a $1,200 civil penalty, and imposing certain conditions on the reinstatement of his license was supported by substantial evidence and free from any errors of law.

Judgment affirmed.

      The LLC subsequently amended its complaint to substitute "Michael Thomann [doing business as] The Boston International Group" for the LLC as the plaintiff in the action. Nonetheless, the board was entitled to find, and did so find, based on all the evidence in the record, including the representations made in the original complaint, that the LLC was both a party to the marketing agreement and the entity that served as the broker.

      A real estate broker may "operat[e] under a business or trade name (doing business as)," provided notice is given to the board. 254 Code Mass. Regs. § 3.00(3) (1998). Thomann had in fact earlier provided notice to the board that he was doing business as "Boston International Group." The board apparently never was told, however, and would have had no reason to know, that Thomann was actually operating through a limited liability company.

      In addition, Thomann stated to the board's investigator that "Boston International Group LLC is registered with MA RE Board."

      On appeal from the single justice's judgment, Thomann asserts for the first time that he used the board-approved disclosure form, and appended a blank copy of the form to his brief. We decline to reach claims and assertions like this that were not raised during the administrative proceedings or before the single justice. See Weinberg v. Board of Registration in Med., 443 Mass. 679, 688, 824 N.E.2d 38 (2005).

      Although the board's final decision and order does not contain express findings concerning the hearing officer's summary ruling, it references the summary ruling, and it adopts the tentative decision (with certain modifications), which in turn referenced both the regulatory violations and the supporting summary ruling.


source: Caselaw Access Project

license: Public Domain

text:
    Matthew THEISZ v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.
    SJC-12559
    Supreme Judicial Court of Massachusetts.
    December 12, 2018
    Roberto M. Braceras, Boston, (Amy Bratskeir & Jennifer Minjung Lee Sage also present) for the defendant.
    David H. Rich (Benjamin J. Wish also present), Boston, for the plaintiff.
    RESCRIPT
    The plaintiff, Matthew Theisz, commenced this action against the Massachusetts Bay Transportation Authority (MBTA) and Derek Smith, an MBTA bus driver, alleging that Smith assaulted him. In the complaint, Theisz asserted two claims against the MBTA: negligent hiring, training, and supervision; and vicarious liability. The MBTA answered Theisz's complaint and then subsequently filed a motion for judgment on the pleadings, arguing that Theisz had failed to adequately present the negligence claim as required by the Massachusetts Tort Claims Act (act). See G. L. c. 258, § 4. The MBTA also claimed that it was immune from liability for the vicarious liability claim pursuant to G. L. c. 258, § 10 (c ), because the claim arises out of an intentional tort. A judge in the Superior Court allowed the motion in part and denied it in part. The judge agreed with the MBTA that it was immune from the vicarious liability claim and allowed the motion as to that claim. With respect to the negligence claim, he agreed with the MBTA that the presentment letter was inadequate, but he concluded that the MBTA had waived the defense of defective presentment by failing to assert it with the specificity and particularity required by Mass. R. Civ. P. 9 (c), 365 Mass. 751 (1974). He therefore denied the motion as to that claim. The MBTA appeals and, in doing so, argues that its appeal, which is interlocutory, is proper pursuant to the doctrine of present execution. We transferred the case to this court on our own initiative.
    Background. In his complaint, Theisz alleged the following. On March 3, 2015, at approximately 10:45 p.m., Smith was operating an MBTA bus in Lynn. At a bus stop, Theisz asked Smith for directions. Smith got off the bus and attacked Theisz, causing serious and permanent injuries. In August 2015, Theisz sent a presentment letter to the MBTA in which he claimed that Smith had attacked and seriously injured him. The MBTA did not respond. Theisz then filed his complaint, alleging therein that he had provided the MBTA with notice of his claim pursuant to the act. In its answer to the complaint, the MBTA generally denied the allegation that Theisz had notified it of his claims. The MBTA also stated, as an affirmative defense, that Theisz "failed to make proper presentment of [his] claim pursuant to G. L. c. 258, § 4."
    In its motion for judgment on the pleadings, the MBTA argued that Theisz's presentment letter was inadequate because it failed to notify the MBTA of the negligence claim that Theisz included in his complaint. Rather, the letter, in the MBTA's view, merely described an incident that amounted to an intentional act, liability for which the MBTA would be immune. The judge agreed, concluding that the only allegation included in the presentment letter was that of an intentional tort for which the MBTA is immune from liability. See Tambolleo v. West Boylston, 34 Mass. App. Ct. 526, 532, 613 N.E.2d 127 (1993) (presentment letter inadequate where it only apprised defendant of claim arising out of intentional tort). The judge went on to note, however, that because presentment is a condition precedent to establishing liability under the act, the MBTA needed to deny Theisz's assertion of proper presentment "specifically and with particularity," pursuant to Mass. R. Civ. P. 9 (c). He concluded that the MBTA had failed to do this and therefore waived its defense of defective presentment. See Martin v. Commonwealth, 53 Mass. App. Ct. 526, 532-533, 760 N.E.2d 313 (2002) (assertion of "boilerplate defenses" does not meet rule 9 [c] particularity requirement). On this basis, he denied the MBTA's motion for judgment on the pleadings as to the negligence claim.
    Discussion. 1. Present execution. In considering the MBTA's interlocutory appeal, we must first determine its propriety. As previously noted, the MBTA claims that its appeal is proper pursuant to the doctrine of present execution. In the context of claims of immunity from suit, we have held that the doctrine "applies in cases involving claims of immunity from suit pursuant to G. L. c. 258, § 10," as well as claims of defective presentment pursuant to G. L. c. 258, § 4. Rodriguez v. Somerville, 472 Mass. 1008, 1009-1010, 33 N.E.3d 1240 (2015). This case represents the latter -- that is, a claim by the MBTA of defective presentment.
    In the Rodriguez case, the defendant, the city of Somerville, filed a motion to dismiss the plaintiff's complaint on the basis that the plaintiff had failed to meet the presentment requirement pursuant to G. L. c. 258, § 4. See id. at 1008, 33 N.E.3d 1240. The motion was denied, and the city appealed, arguing that the interlocutory appeal was proper pursuant to the doctrine of present execution. See id. at 1010, 33 N.E.3d 1240. In concluding that the appeal was proper, we noted that "[t]he presentment requirement protects government officials from having to face unnecessary and potentially harassing litigation. Allowing an appeal on the basis that presentment was deficient furthers that important public interest." Id.
    Although the posture of the MBTA's appeal in this case differs somewhat from that of the Rodriguez case, the same "important public interest" is at stake. In the Rodriguez case, as we have noted, the city was appealing from a judge's ruling that presentment was adequate. Here, the MBTA appeals from a judge's ruling that it waived a particular affirmative defense, rather than directly from any ruling on the adequacy of presentment. The affirmative defense, however, relates directly to the adequacy of presentment and, as such, to the issue of immunity from suit. In both cases -- here as well as in the Rodriguez case -- the issue at the root of whether the appeal is subject to present execution, and whether it is therefore properly before us, is the same.
    Our conclusion that the MBTA's appeal is properly before us should not be viewed as an expansion of the doctrine of present execution, however, which we continue to recognize as a narrow exception to the general, very well-settled rule that "absent special authorization ... an appellate court will reject attempts to obtain piecemeal review of trial rulings that do not represent final disposition on the merits" (quotations and citation omitted). Fabre v. Walton, 436 Mass. 517, 520-521, 781 N.E.2d 780 (2002). The purpose of the doctrine is to allow for "immediate appeal of an interlocutory order ... if the order will interfere with rights in a way that cannot be remedied on appeal from the final judgment." Id. at 521, 781 N.E.2d 780, and cases cited. Here, the order denying the MBTA's motion for judgment on the pleadings, which is rooted in a claim of immunity from suit, fits within the doctrine.
    2. Adequacy of pleading the affirmative defense. Having determined that the MBTA's appeal is properly before us, we turn now to the issue whether the MBTA sufficiently pleaded its affirmative defense that presentment was inadequate. We agree with the judge that it did not.
    As the judge noted, proper presentment is a condition precedent governed by Mass. R. Civ. P. 9 (c). "[P]resentment is a condition precedent to bringing suit" pursuant to G. L. c. 258, and a defendant must deny a plaintiff's averment of proper presentment specifically and with particularity pursuant to rule 9 (c)"or defective presentment is not an issue in the case." Vasys v. Metropolitan Dist. Comm'n, 387 Mass. 51, 52, 438 N.E.2d 836 (1982). See Rodriguez, 472 Mass. at 1010 n.3, 33 N.E.3d 1240. "A defendant who does contest compliance with conditions precedent must pinpoint the particular condition or conditions alleged to remain unsatisfied; a general denial does not raise the issue" (emphasis added). J.W. Smith & H.B. Zobel, Rules Practice § 9.7 (2d ed. 2006).
    Paragraph fifteen of Theisz's complaint states that he "notified the Defendant of [ ]his claim on August 3, 2015 by means of a presentment letter sent to the executive officer of the MBTA ... within two (2) years of the date of the incident described in Plaintiff's complaint." In its answer, the MBTA's response to paragraph fifteen provides a general denial -- "[t]he defendant denies the allegations contained in this paragraph" -- and its relevant affirmative defense asserts, in its entirety, that "[p]laintiff's claim should be dismissed as Plaintiff failed to make proper presentment of this claim pursuant to [G. L. c.] 258, § 4." This is not the type of specific and particular denial called for by the rule.
    The MBTA argues that it did more than merely assert a general denial or a "boilerplate" defense that the complaint failed to state a claim. While it might be accurate to say that the MBTA did something slightly more than merely state that the complaint failed to state a claim, by stating in the most generic way possible its position that Theisz failed to make proper presentment, that description of its defense still falls into the category of "boilerplate." The MBTA's specific and particular position in its motion for judgment on the pleadings, as it is now on appeal, was that presentment was inadequate because Theisz's letter failed to notify the MBTA of the negligence claim that Theisz eventually raised in his complaint. That is something that the MBTA easily could have, and should have, stated in its affirmative defense. Doing so would have met the requirement of the rule that a denial of performance of a condition precedent be made "specifically and with particularity." Because the MBTA's affirmative defense, as pleaded, fell short of the requirement of the rule, the adequacy of presentment is "not an issue in the case." Vasys, 387 Mass. at 52, 438 N.E.2d 836, citing Travers v. Travelers Ins. Co., 385 Mass. 811, 434 N.E.2d 208 (1982).
    Finally, we note that, at oral argument, questions arose regarding the timing of certain filings in the trial court and whether the MBTA had intentionally "run out the clock," so to speak, thus precluding, for example, an opportunity for Theisz to remedy any defect in presentment. At the court's invitation, the MBTA filed a postargument letter setting forth the relevant timeline, and Theisz filed a response. The letters reflect, essentially, what is clear from the trial court docket: Theisz filed his complaint on September 28, 2016, and served it on the MBTA on December 28, 2016; the MBTA filed its answer on February 10, 2017, and its motion for judgment on the pleadings on June 1, 2017. Although a finding that the MBTA failed to plead its affirmative defense specifically and with particularity pursuant to rule 9 (c) does not require a finding of prejudice, we note that the failure may in fact have prejudiced Theisz. If in its answer the MBTA had pleaded its defense with the requisite specificity and particularity, Theisz would still have had time to provide proper presentment (by March 3, 2017, which would have been two years from the date of the incident). In any event, even if there had been no prejudice, the judge was warranted in concluding that the MBTA had waived the affirmative defense of inadequate presentment by failing to plead it with the required specificity and particularity. The order allowing in part and denying in part the MBTA's motion for judgment on the pleadings is affirmed.

      The appeal relates only to the negligence claim. The judge's decision to allow the MBTA's motion as to the vicarious liability claim is not a part of this appeal. The plaintiff also asserted three claims against the driver, Derek Smith. Those claims remain pending in the trial court and are similarly not a part of this appeal.

      There is little question that presentment was inadequate, where the letter failed to notify the MBTA of the negligence claim that Theisz eventually asserted in his complaint. Theisz himself does not appear to refute this.

      In the Rodriguez case, the city first stated its claim of defective presentment in its motion to dismiss. See Rodriguez v. Somerville, 472 Mass. 1008, 1010 n.3, 33 N.E.3d 1240 (2015). The city then also raised it as an affirmative defense in its subsequent answer. See id. Although the city did not raise defective presentment in its answer "as specifically or as particularly as it could have," we concluded that the answer was sufficient in the circumstances, especially where the city had already clearly raised the issue in its motion to dismiss. See id.

   So ordered.


author: LOWY, J.

text:
    COMMONWEALTH v. Manolo SALAZAR.
    SJC-10566
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued September 12, 2018 Decided December 14, 2018
    Amy M. Belger, Holliston, for the defendant.
    Kathryn E. Leary, Assistant District Attorney (John P. Pappas, Assistant District Attorney, also present) for the Commonwealth.
    Present: Gants, C.J., Lowy, Budd, & Kafker, JJ.
   LOWY, J.

On the night of January 31, 2005, members of the Boston fire department in the Dorchester section of Boston responded to the sound of banging on their fire house door. Outside the station was the defendant, Manolo Salazar, covered in blood. After examining the defendant, firefighters found only a minor cut on his right hand. Police investigation revealed the source of the rest of the blood on the defendant's body: Carlos Cruz, the defendant's roommate, whom police found dead in their shared apartment.

After a jury trial, the defendant was convicted of murder in the first degree on the theory of deliberate premeditation. He raises several arguments on appeal: (1) the judge erred in denying his motions for a required finding of not guilty on the murder charge because the evidence was insufficient to establish deliberate premeditation; (2) he should be afforded a new trial because trial counsel was ineffective in failing to introduce evidence in support of a defense based on voluntary intoxication; and (3) improper statements in the prosecutor's closing argument created a substantial likelihood of a miscarriage of justice. The defendant also asks us to exercise our authority under G. L. c. 278, § 33E, to either reduce his conviction to murder in the second degree or order a new trial.

Having thoroughly reviewed the defendant's asserted errors and the record as a whole, we discern no reversible error. However, given the unique circumstances of this case, we exercise our authority under G. L. c. 278, § 33E, to reduce the defendant's verdict to murder in the second degree.

1. Background. a. Trial. Because the defendant challenges the sufficiency of the evidence, we recite the facts that the jury could have found in the light most favorable to the Commonwealth and reserve additional facts for later discussion.

At approximately 8:40 P.M. on January 31, 2005, members of the Boston fire department heard banging on the door of a station in Dorchester. They found the defendant at the door. He fell down. His clothes, including the socks on his shoeless feet, were covered in blood. The lone injury firefighters discovered was a minor laceration between the defendant's right thumb and forefinger that was not bleeding heavily enough to account for all of the blood on his clothes. After an ambulance arrived, the defendant became combative and was handcuffed to a backboard by paramedics before being transported to a Boston hospital.

Initially, the defendant told police that his last name began with a "Z" instead of an "S" and provided them with an inaccurate home address. Subsequent investigation led police to the defendant's home in Dorchester, a three-unit apartment building. On entry into the defendant's third-floor apartment, police discovered the victim lying dead on the floor between a hallway and a bedroom. A Boston Police Department detective observed a large pool of blood below the victim's body. Inside that pool of blood was a kitchen knife with a wooden handle and a serrated edge, which was "drastically" bent.

The Commonwealth's chief medical examiner at the time of trial testified to the victim's autopsy report, which had been prepared by another medical examiner. He detailed the victim's injuries, noting that the "most lethal" wound was a cut beginning at the victim's left ear and continuing to his neck. He described the wound as a deep stab wound that injured both the victim's carotid artery and his jugular vein, causing him to bleed to death. He described eleven additional injuries; five were abrasions and six were clearly caused by a sharp object. The additional sharp object injuries included three stab wounds (one to the left arm, one to the left shoulder, and one near the left armpit that was four inches deep) and three, more shallow, incised wounds (one to the outside of the left arm, one to the left side of the chest, and one that extended from the victim's left index finger to his ring finger). The medical examiner described the injury across the victim's fingers as consistent with the victim "trying to deflect" the knife with that hand. He further opined that the victim's wounds were consistent with the knife that was found underneath him, and that the cut on the defendant's hand was consistent with the murder weapon slipping in the defendant's hand.

Police viewed reddish-brown stains throughout the apartment that created a trail from the area of the victim's body down the hallway, through the kitchen, onto the back porch, over the third-floor railing and down to the railings on the second and first floors, through the backyard, and over a chain-link fence. That trail then led through a vacant lot and onto nearby streets, eventually leading to the fire station. Deoxyribonucleic acid testing identified the victim's blood as a possible source of many of these "reddish-brown" stains, including those on the defendant's pants and socks, one on the porch railing on the third floor, and one on a snow pile in the vacant lot.

The defendant testified in his own defense and denied killing the victim. He testified that the victim was "almost like my brother" and that the two had spent the day of January 31 together in the apartment cooking and drinking beer. Although the defendant did not recall how many beers he consumed, his testimony suggested that he was drinking beer from at least 11:30 A.M. until approximately 4 P.M. , at which point he fell asleep on the couch. The defendant testified that he was awakened by loud voices arguing in the apartment and saw two strange men inside the apartment arguing with the victim. One of the men had a knife and began stabbing the victim, causing the defendant to intervene. The defendant said that he was then beaten by the two men and fled the apartment, going directly to the fire station to find help.

The judge denied the defendant's motions for a required finding of not guilty. At the charge conference, trial counsel requested that the judge instruct the jury on intoxication as relevant to both intent and deliberate premeditation. The judge so instructed the jury, but noted to counsel that "there is a paucity of evidence on [intoxication] and there's certainly no scientific evidence that I've seen."

b. Motion for new trial. The defendant filed a motion for a new trial after his conviction, asserting ineffective assistance of counsel based on trial counsel's failure to introduce medical records showing his levels of intoxication. The jury had heard evidence suggesting that the defendant was intoxicated on the night of the murder, including testimony from a woman who had translated for the defendant at the hospital. The woman testified that the defendant's speech "was kind of sluggish," his breath smelled of alcohol, and his eyes were bloodshot. Trial counsel did not mention intoxication in her opening statement, and she referenced the evidence of the defendant's intoxication in her closing argument only in an attempt to explain disparities in the defendant's recollection of events.

Not before the jury, however, were the defendant's medical records, which were discussed before trial at an evidentiary hearing on the defendant's motion to suppress. His breathalyzer results indicated either a 0.298 or a 0.289 blood alcohol content (BAC), his blood alcohol readings were 0.226 and 0.288, and he had a serum alcohol level of 307. The defendant was diagnosed with alcohol intoxication, and a medical technician testified at the suppression hearing that the defendant's breathalyzer results indicated a very high level of intoxication.

Trial counsel submitted an affidavit stating that her failure to introduce medical records indicating the defendant's high level of intoxication was not a strategic decision, but rather an oversight on her part. In denying the defendant's motion without an evidentiary hearing, the motion judge implicitly discredited trial counsel's affidavit and determined that the record indicated "that counsel consciously chose not to offer the medical records." Emphasizing how a vigorous intoxication defense would have undermined the defendant's testimony that he was innocent, the motion judge found that trial counsel made a tactical decision to focus on a third-party culprit theory rather than introduce significant evidence of intoxication.

The defendant filed a motion for reconsideration, which was allowed, and an evidentiary hearing on the motion for a new trial followed. Trial counsel testified at the hearing. In an amended decision, the motion judge noted that the defendant's medical records showed "very significant intoxication" and credited trial counsel's testimony that she had intended to present and rely on those medical records as part of her intoxication strategy. He further concluded that trial counsel never intended to call as a witness at trial the medical technician who had administered the defendant's breathalyzer test at the hospital and who had testified at the suppression hearing that the defendant's BAC was "very high."

The judge issued an amended decision on the defendant's motion for a new trial. The judge concluded that trial counsel pursued a dual-defense strategy and had intended to introduce the medical records as a part of a voluntary intoxication defense. The judge held that, because trial counsel inadvertently failed to introduce those records because she believed that they were in evidence, trial counsel's performance fell measurably below that of an ordinary fallible lawyer. See Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). The judge determined that this error did not warrant a new trial, however, because the jury heard "substantial evidence of intoxication ... and received full instructions to consider the defendant's voluntary intoxication on the questions of intent and deliberate premeditation." The motion judge noted that trial counsel, despite her mistake, skillfully sought to "soft-pedal" the intoxication defense. In other words, she attempted to present evidence of the defendant's intoxication without undermining his claim to innocence.

2. Discussion. a. Sufficiency of the evidence. The defendant maintains that the evidence presented at trial was insufficient to establish deliberate premeditation, and that the judge's denial of his motions for a required finding of not guilty was therefore error. We review the denial of a motion for a required finding of not guilty to determine "whether the evidence offered by the Commonwealth, together with reasonable inferences therefrom, when viewed in its light most favorable to the Commonwealth, was sufficient to persuade a rational jury beyond a reasonable doubt of the existence of every element of the crime charged." Commonwealth v. Whitaker, 460 Mass. 409, 416, 951 N.E.2d 873 (2011), quoting Commonwealth v. Lao, 443 Mass. 770, 779, 824 N.E.2d 821 (2005), S.C., 450 Mass. 215, 877 N.E.2d 557 (2007) and 460 Mass. 12, 948 N.E.2d 1209 (2011). See Commonwealth v. Latimore, 378 Mass. 671, 677-678, 393 N.E.2d 370 (1979).

To prove murder in the first degree on the theory of deliberate premeditation, the Commonwealth must prove "not only that the defendant intended to kill, but that the defendant decided to kill after a period of reflection." Whitaker, 460 Mass. at 418, 951 N.E.2d 873. There is "[n]o particular length of time of reflection ... required to find deliberate premeditation, and the decision may be made in only a few seconds." Commonwealth v. Rakes, 478 Mass. 22, 34, 82 N.E.3d 403 (2017). Circumstantial evidence alone may be sufficient to prove deliberate premeditation. Commonwealth v. Veiovis, 477 Mass. 472, 480, 78 N.E.3d 757 (2017).

We have recognized as proper considerations in a deliberate premeditation analysis the number and severity of the injuries, including defensive wounds, the procuring of a murder weapon in one room and carrying it to use in another, and the location of a victim's wounds. See Whitaker, 460 Mass. at 419, 951 N.E.2d 873 ("Deliberate premeditation may be inferred from the nature and extent of a victim's injuries, the duration of the attack, the number of blows, and the use of various weapons"); Commonwealth v. Nolin, 448 Mass. 207, 216 n.7, 859 N.E.2d 843 (2007) (deliberate premeditation established by "the number and severity of the injuries" to victim's face and head). See also Commonwealth v. Townsend, 453 Mass. 413, 429, 902 N.E.2d 388 (2009) (victim's fifty-eight stab wounds, including several defensive wounds, sufficient for deliberate premeditation); Commonwealth v. Farley, 432 Mass. 153, 157-158, 732 N.E.2d 893 (2000), S.C., 443 Mass. 740, 824 N.E.2d 797, cert. denied, 546 U.S. 1035, 126 S.Ct. 733, 163 L.Ed.2d 577 (2005) (evidence sufficient to establish deliberate premeditation where "the Commonwealth relied on the fact that the victim had been stabbed multiple times; the location of the wounds ; the duration of the attack; and the inference that the defendant carried a knife from the kitchen to the victim's upstairs bedroom"); Commonwealth v. Andrews, 427 Mass. 434, 440, 694 N.E.2d 329 (1998) (shooting unarmed victim four times from close range sufficient for deliberate premeditation); Commonwealth v. Watkins, 373 Mass. 849, 852, 370 N.E.2d 701 (1977) ("that the defendant, after a quarrel, went to the kitchen, picked up a knife, and returned to stab the victim is sufficient" for premeditation). We conclude that, here, the evidence and the reasonable inferences that stem from it, considered in the light most favorable to the Commonwealth, were sufficient to prove that the murder was deliberately premeditated. The knife used to kill the victim was a kitchen knife, and the location of the victim's body between the hallway and a bedroom allows for a reasonable inference that the defendant retrieved the weapon from the kitchen before the killing. The fatal wound was a deep wound to the victim's neck. The victim had at least six other stab or incised wounds, including defensive wounds on his left hand and injuries to his left side, arm, and shoulder, that left the knife "drastically" bent. The judge's denial of the defendant's motions for a required finding of not guilty was proper.

b. Ineffective assistance of counsel. The defendant maintains that he was deprived of effective assistance of counsel at trial because his counsel failed to introduce the defendant's medical records indicating his high level of intoxication on the night of the murder. Because the defendant was convicted of murder in the first degree, we review the claim under the more favorable standard articulated in G. L. c. 278, § 33E, under which we must determine whether there was a substantial likelihood of a miscarriage of justice. Commonwealth v. Alicea, 464 Mass. 837, 845, 985 N.E.2d 1197 (2013), quoting Commonwealth v. Gonzalez, 443 Mass. 799, 808, 824 N.E.2d 843 (2005). To make this determination, we ask "whether there was an error in the course of the trial (by defense counsel, the prosecutor, or the judge) and, if there was, whether that error was likely to have influenced the jury's conclusion." Alicea, supra, quoting Commonwealth v. Wright, 411 Mass. 678, 682, 584 N.E.2d 621 (1992), S.C., 469 Mass. 447, 14 N.E.3d 294 (2014). "[W]e consider a defendant's claim even if the action by trial counsel does not constitute conduct 'falling measurably below that ... of an ordinary fallible lawyer.' " Gonzalez, supra at 808-809, 824 N.E.2d 843, quoting Commonwealth v. MacKenzie, 413 Mass. 498, 517, 597 N.E.2d 1037 (1992).

We agree with the motion judge that trial counsel's oversight in failing to introduce the defendant's medical records was error. We differ from the motion judge's ruling that it was a reasonable strategic decision by trial counsel to not supplement those records with expert testimony regarding the relationship between the BAC reading and intoxication. See Commonwealth v. Colturi, 448 Mass. 809, 817-818, 864 N.E.2d 498 (2007) ("the jury would be left to guess" at meaning of defendant's BAC absent expert testimony).

We recognize that trial counsel was faced with a difficult strategic predicament at trial. The defendant, as is his constitutional right, testified in his own defense. See Commonwealth v. Brown, 479 Mass. 163, 171, 92 N.E.3d 1189 (2018). He unequivocally denied killing the victim. Therefore, the motion judge found that trial counsel decided to pursue the voluntary intoxication defense ever mindful of its potential to undercut the primary defense of innocence. See Commonwealth v. Morales, 453 Mass. 40, 43-45, 899 N.E.2d 96 (2009). The motion judge ultimately concluded that trial counsel "soft-pedaled" the intoxication defense so as to leave the question in the jury's hands without overemphasizing the defendant's intoxication. There are situations where the appropriate course of action would be to pursue alternative defenses -- "rid[e] 'two horses' " into battle. Commonwealth v. Kolenovic, 471 Mass. 664, 676, 32 N.E.3d 302 (2015), S.C., 478 Mass. 189, 84 N.E.3d 781 (2017). Trial counsel chose such a strategy in the present case. However, having made that decision, trial counsel was required to pursue each of those defenses effectively. Although the choice to soft-pedal the intoxication defense was reasonable, her failure to introduce the most compelling evidence of the defendant's intoxication was error.

Nevertheless, the jury were presented with evidence that allowed them to consider the question of intoxication. Most notably, the defendant testified that he had spent at least four and one-half hours drinking beer with the victim on the day of the murder, although he did not know how many beers he had consumed. The woman who interacted with the defendant at the hospital noted that his breath smelled of alcohol, his eyes were bloodshot, and his speech was sluggish. Although there is no dispute that the defendant drank and showed signs of intoxication, there also was ample evidence before the jury to show that the defendant was not intoxicated to the point of debilitation. He was coherent in his interactions with medical personnel and was physically able to climb to the ground from the deck of his third-floor apartment.

The judge instructed the jury that they could consider the mitigating effect of voluntary intoxication, stating, "[A]ny evidence that you find credible of the defendant's consumption of alcohol, you may consider that evidence in determining whether the defendant specifically intended to commit an offense or whether the defendant deliberately premeditated the killing of [the victim]."

Because the defendant's intoxication may have been probative of a lack of capacity to formulate the intent necessary to prove murder by deliberate premeditation, the jury could have found the defendant guilty of a lesser offense or acquitted him had they determined his level of intoxication to be "debilitating." Commonwealth v. Carter, 475 Mass. 512, 524, 58 N.E.3d 318 (2016). See Commonwealth v. Murphy, 442 Mass. 485, 504, 813 N.E.2d 820 (2004). That debilitation must be to the point that it "could support a reasonable doubt as to the defendant's ability to form the requisite criminal intent" or to deliberately premeditate. Commonwealth v. Lennon, 463 Mass. 520, 523, 977 N.E.2d 33 (2012). As evidenced by the request for an intoxication instruction, trial counsel pursued this defense. Trial counsel also pointed to the defendant's intoxication in her closing argument as a possible explanation for disparities in the defendant's account of the night in question. It was an error by counsel, therefore, to not introduce the defendant's medical records and accompanying expert testimony to explain the significance of his BAC, particularly because expert testimony likely would have shown the BAC to demonstrate a high level of intoxication. See Commonwealth v. Wall, 469 Mass. 652, 671, 15 N.E.3d 708 (2014) (testimony that BAC of 0.21 per cent "very high").

Therefore, the question is whether this error created a substantial likelihood of a miscarriage of justice. Despite trial counsel's errors, her approach to the trial was consistent with the motion judge's determination that she "soft-pedaled" the intoxication defense. At the time of the closing argument, trial counsel believed that the defendant's medical records had been entered in evidence. Despite this belief, she opted not to argue that the defendant's intoxication diminished his capacity to form intent or deliberately premeditate. This suggests that although trial counsel chose to ride two horses into battle, she focused primarily on only one of them in closing argument. It "is a well-known and time-honored approach" to avoid emphasizing a defense that would undermine a primary defense theory. Commonwealth v. Walker, 443 Mass. 213, 228, 820 N.E.2d 195 (2005). See Commonwealth v. Spray, 467 Mass. 456, 473-475, 5 N.E.3d 891 (2014). When considering a defense attorney's strategy at trial, "we conduct our review with some deference to avoid characterizing as unreasonable a defense that was merely unsuccessful." Kolenovic, 471 Mass. at 673, 32 N.E.3d 302, quoting Commonwealth v. Valentin, 470 Mass. 186, 190, 23 N.E.3d 61 (2014). "This measure of deference is as it must be because, ultimately, counsel alone has the benefit of the full factual picture that dictates the choice of those matters to be revealed to the fact finder and those that are better left unexposed to court room scrutiny. From that vantage point, counsel 'knows best how to defend a client.' " Kolenovic, supra, quoting Commonwealth v. Glover, 459 Mass. 836, 843, 948 N.E.2d 415 (2011). We recently considered a similar question in Commonwealth v. Montrond, 477 Mass. 127, 134-136, 75 N.E.3d 9 (2017), where the defendant's trial counsel argued that a shooting was accidental while choosing not to introduce evidence of the defendant's possible intoxication. Although the evidence of intoxication in the Montrond case, which we termed to be "tepid at best," may have been "somewhat helpful to the defendant[ ]," we concluded that it "hardly would have given rise to a compelling inference that the defendant was so intoxicated that he could not appreciate the need to check the safety lock before pointing a loaded gun at someone's head and pulling the trigger." Id. at 136, 75 N.E.3d 9. The evidence of intoxication here rises above the tepid level seen in the Montrond case. It is not, however, so strong that we are concerned that the failure to admit medical evidence of the defendant's intoxication would have been likely to influence the jury's decision.

The defendant's BAC, although high, would have been just one of many factors the jury could have considered in determining whether he was intoxicated to the point of debilitation, such that there was "reasonable doubt as to [his] ability to form the requisite criminal intent." Lennon, 463 Mass. at 523, 977 N.E.2d 33. Although evidence of the defendant's BAC would have been the strongest evidence to suggest he was debilitated by alcohol, the entirety of the evidence before the jury coupled with trial counsel's reasonable decision to "soft-pedal" the intoxication defense leaves us unpersuaded that the defendant's medical records would have influenced the jury's verdict. We conclude that defense counsel's error in failing to admit them in evidence did not create a substantial likelihood of a miscarriage of justice.

c. Closing argument. The defendant asserts that the prosecutor made improper remarks in his closing argument. Because trial counsel did not object to the closing argument at trial, we review to determine whether there was an error and, if so, whether that error created a substantial likelihood of a miscarriage of justice. See Veiovis, 477 Mass. at 488, 78 N.E.3d 757.

"To be sure, 'prosecutors are held to a stricter standard than are errant defense counsel and their clients.' " Commonwealth v. Goitia, 480 Mass. 763, 775, 108 N.E.3d 993 (2018), quoting Commonwealth v. Arroyo, 442 Mass. 135, 147, 810 N.E.2d 1201 (2004). The defendant contends that three portions of the prosecutor's closing argument were improper: (1) a reference to the twenty-month period between the murder and trial, which accompanied the prosecutor's suggestion that the defendant now had no more time to produce a different explanation for the victim's death, such as a third party; (2) the statement that the jury should use their "moral compass" and "gut" in evaluating the evidence and testimony; (3) the statement that the defendant's intoxication was "not an excuse" for the murder, "[w]hether he had two beers, four beers, or [forty-four] beers." We discern no error in the prosecutor's reference to the twenty-month period between the murder and trial. The prosecutor discussed that period of time while highlighting the disparities in the defendant's story throughout that time period, including the detailed nature of the defendant's testimony at trial as compared to the defendant's statements at the time of the killing. This portion of the argument was grounded in the evidence presented at trial and was a reasonable commentary on the defendant's credibility. See Commonwealth v. Tu Trinh, 458 Mass. 776, 788, 940 N.E.2d 871 (2011).

The prosecutor's call for jurors to follow their moral compass is troublesome, but we conclude that even if it was error, it did not create a substantial likelihood of a miscarriage of justice. The relevant portion of the prosecutor's argument is as follows:

"You ... impartial jurors also have something inside you besides your commonsense. And it's what I refer to as a moral compass. That little moral compass, when you know based on your gut that something's wrong, that something is askew with a certain situation. And I suggest to you, ladies and gentlemen, based on the evidence in this case, that your moral compass goes haywire when you consider what was in that apartment and his actions and his statements in the aftermath of 8:40 P.M. approximately on January 31st of 2005. You know, based on your everyday life experience that something was horribly amiss with his behavior, his statements and his actions that night."

It is well established that it is proper to ask a jury to rely on their common sense and life experience in assessing evidence and credibility. See Lao, 460 Mass. at 22, 948 N.E.2d 1209. The prosecutor's invocation of the jury's "moral compass" however, was a step beyond an ordinary call for the jury to rely on their life experience and common sense, and approached an improper appeal to the jury's emotions. It was thus better left unsaid. We need not determine whether it was improper, however, because even if it was, we are unpersuaded that this sole misstatement would undermine the jury's verdict, particularly where the jury were properly instructed that closing arguments are not considered evidence. See Commonwealth v. Kozec, 399 Mass. 514, 517, 505 N.E.2d 519 (1987). Considering the statement in the context of the rest of the closing argument and the trial as a whole, any prejudice was minor and does not warrant reversal. See Commonwealth v. Braley, 449 Mass. 316, 329, 867 N.E.2d 743 (2007).

Finally, although the prosecutor's statement that the defendant's possible intoxication did not "excuse" his actions was technically consistent with the law, we are concerned that the prosecutor crossed the line into a misstatement of the law. See Commonwealth v. Rollins, 470 Mass. 66, 81, 18 N.E.3d 670 (2014), quoting Commonwealth v. Bins, 465 Mass. 348, 367, 989 N.E.2d 404 (2013) ("We have repeatedly warned that, in 'closing argument,' '[l]awyers shall not and must not misstate principles of law' "). It is true that intoxication does not serve as an excuse in the way that, for instance, self-defense does. See Commonwealth v. Walczak, 463 Mass. 808, 817, 979 N.E.2d 732 (2012) (Lenk, J., concurring), quoting Model Jury Instructions on Homicide 8 (1999) (self-defense can serve as legal justification for a killing, rather than mitigating factor). In the context of the trial as a whole and the rest of the prosecutor's closing argument, however, the prosecutor's statement regarding excuse appears to be a colloquial suggestion that the defendant's intoxication could neither excuse his actions nor diminish his culpability. Thus, the prosecutor's pronouncement that the defendant's intoxication was no excuse for his actions adversely had an impact on the effectiveness of the judge's intoxication instruction.

That error, however, was not significant enough that our confidence in the jury's decision is shaken. The defendant's trial counsel referred to the defendant's intoxication in her closing argument only as a means to explain discrepancies between his multiple versions of the night of the killing. The prosecutor's statement, while erroneous, was a brief, isolated statement in his closing argument and was not egregious enough to infect the whole of the trial. Finally, the judge properly instructed the jury that closing arguments are not evidence, and it is well-established that "[t]he jury are presumed to follow instructions." Commonwealth v. Hernandez, 473 Mass. 379, 392, 42 N.E.3d 1064 (2015), citing Commonwealth v. Andrade, 468 Mass. 543, 549, 11 N.E.3d 597 (2014). See Kozec, 399 Mass. at 517, 505 N.E.2d 519. With all that in mind, we conclude that the prosecutor's error was unlikely to have influenced the jury's ultimate decision and therefore did not create a substantial likelihood of a miscarriage of justice.

d. Review pursuant to G. L. c. 278, § 33E. The defendant asks us, in the alternative to his grounds for appeal addressed above, to exercise our authority under G. L. c. 278, § 33E, to either order a new trial or reduce his conviction to murder in the second degree. It is our statutory duty "to consider broadly the whole case on the law and the facts to determine whether the verdict is consonant with justice" (quotations and citation omitted). Commonwealth v. Vargas, 475 Mass. 338, 363-364, 57 N.E.3d 920 (2016). "[F]or any ... reason that justice may require, [we may] (a) order a new trial or (b) direct the entry of a verdict of a lesser degree of guilt, and remand the case to the superior court for the imposition of sentence." G. L. c. 278, § 33E. Although we recognize that our power under § 33E"is to be exercised sparingly," Commonwealth v. Seit, 373 Mass. 83, 95, 364 N.E.2d 1243 (1977), we are persuaded that, here, a verdict of murder in the second degree would be more "consonant with justice." Vargas, supra.

Our duty under § 33E"does not ... convert this court into a second jury." Commonwealth v. Penn, 472 Mass. 610, 621, 36 N.E.3d 552 (2015), cert. denied, --- U.S. ----, 136 S.Ct. 1656, 194 L.Ed.2d 773 (2016), quoting Commonwealth v. Franklin, 465 Mass. 895, 916, 992 N.E.2d 319 (2013). But this case presents one of the rare situations in which we conclude that the jury's verdict of murder in the first degree was supported by the evidence, but was not consonant with justice. In Commonwealth v. Lanoue, 392 Mass. 583, 591-592, 467 N.E.2d 159 (1984), S.C., 400 Mass. 1007, 513 N.E.2d 683 (1987) and 409 Mass. 1, 563 N.E.2d 1367 (1990), we exercised our authority under § 33E where the evidence was sufficient to convict the defendant of murder in the first degree on a theory of deliberate premeditation, but the evidence was entirely circumstantial and "thin." There was evidence that the victim in the Lanoue case had sustained multiple injuries and that the defendant was intoxicated at the time of the killing, and although the judge instructed the jury on the relationship between intoxication and deliberate premeditation, the adequacy of the instruction was questionable. Id. We reduced the defendant's verdict to murder in the second degree. Id. at 592, 467 N.E.2d 159.

Due to the unusual nature of this case, we reach the same conclusion as we did in the Lanoue case. There was sufficient evidence before the jury to support their conclusion that the defendant had killed the victim after deliberate premeditation, but it was far from compelling. In addition to there being no definitive evidence as to what happened in the apartment on the night of the killing other than the victim being stabbed multiple times, there is nothing to suggest that there was any ill will between the defendant and the victim, or to suggest that there was any motive for the killing. See Seit, 373 Mass. at 94, 364 N.E.2d 1243 (whether defendant and victim had good relationship prior to killing relevant to mitigation analysis under § 33E ). The defendant's intoxication is another factor that we consider, particularly where it was incompletely presented as a defense and where the prosecutor made an inappropriate statement about it in his closing argument. See Commonwealth v. Ransom, 358 Mass. 580, 583, 266 N.E.2d 304 (1971) (alcohol having "probably played a part" in murder proper consideration in § 33E analysis). In sum, we conclude that a conviction of murder in the second degree is more consonant with justice and we reduce the verdict accordingly.

The case is remanded to the Superior Court, where the verdict of murder in the first degree and sentence imposed shall be vacated. A verdict of guilty of murder in the second degree shall be entered, and a sentence imposed.

So ordered.

      The defendant was acquitted of assault and battery.

      The defendant raised one additional argument pursuant to Commonwealth v. Moffett, 383 Mass. 201, 208-209, 418 N.E.2d 585 (1981). The defendant contends that he was prejudiced by the trial judge's denial of his motion for the funds necessary to translate his trial transcripts into Spanish. An indigent defendant is entitled to funds for "extra fees and costs ... if 'the document, service or object is reasonably necessary to assure the applicant as effective a ... defense ... as he would have if he were financially able to pay.' " Commonwealth v. Millien, 474 Mass. 417, 430, 50 N.E.3d 808 (2016), quoting G. L. c. 261, § 27C. In making a decision on a motion for funds, a judge may consider, among other things, the cost of the requested item and its potential value. Commonwealth v. Lockley, 381 Mass. 156, 160-161, 408 N.E.2d 834 (1980). The estimated cost of the translation was $12,348, and the defendant was present, with a translator, throughout his trial. Further, the defendant's appellate counsel was provided with the trial transcripts and could therefore discuss them with his client. Therefore, we discern no error in the judge's denial of the motion for funds.

      The defendant's motion for a new trial was argued before a different judge, as the trial judge had retired.

      The defendant sought to exclude evidence of his intoxication, including both statements made and physical evidence. His motion to suppress was denied, and the evidence of his intoxication was available to be admitted in evidence during trial.

      The judge rejected the defendant's argument that defense counsel's strategic decision not to call the technician as a witness to testify at trial regarding the defendant's BAC was manifestly unreasonable, as "the overall defense strategy [was] to preserve, but not highlight, intoxication."

      This standard differs from the Saferian standard motion judges apply when ruling on motions for a new trial based upon ineffective assistance of counsel claims. Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). Although this difference in standards does not have an impact on our decision in this case, we note that it may, at times, result in a reversal of a motion judge's decision even though the motion judge may well have been affirmed if we were applying the same standard of review.

      The defendant's appellate counsel argues that the defendant's testimony at trial was fantastical and would not have been credited by the jury. Although that may be so, the decision whether to testify is the prerogative of the accused. Commonwealth v. Jenkins, 458 Mass. 791, 803, 941 N.E.2d 56 (2011) ("The decision whether to testify is an important strategic one to be made by the defendant in consultation with his attorney"). Defense counsel may sometimes disagree with a defendant's decision to testify and may provide advice to assist the defendant in that decision. See generally id. at 802-804, 941 N.E.2d 56. Ultimately, should the defendant decide to testify to his or her side of the story, respect for the defendant's personal autonomy requires that the defendant's own attorney not undermine that decision. See id. at 803, 941 N.E.2d 56 (waiver of right to testify on one's own behalf must be knowing and intelligent). But see Mass. R. Prof. C. 3.3 (e), as appearing in 471 Mass. 1416 (2015) (where defense counsel knows that his or her client is going to testify falsely, he or she "may not aid the client in constructing false testimony, and has a duty strongly to discourage the client from testifying falsely, advising that such a course is unlawful"); Commonwealth v. Mitchell, 438 Mass. 535, 550-553, 781 N.E.2d 1237, cert. denied, 539 U.S. 907, 123 S.Ct. 2253, 156 L.Ed.2d 118 (2003). See also Nix v. Whiteside, 475 U.S. 157, 173, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986).

      The evidence suggesting that the defendant in Montrond was intoxicated was limited to a first responder's description of the defendant as "reek[ing] of [body odor], like sweat and [body odor], and of alcohol" and the defendant's emotional behavior that may have been viewed as consistent with being alcohol related. Commonwealth v. Montrond, 477 Mass. 127, 136, 75 N.E.3d 9 (2017).

      There is no BAC that constitutes "per se" debilitation in the way seen in prosecutions for operating while under the influence. Colturi, 448 Mass. at 810, 864 N.E.2d 498. With that in mind, there is ample evidence to suggest that the defendant was not intoxicated to the point of debilitation. He was coherent in talking to firefighters, paramedics, and hospital staff. He was capable of climbing from the back porch of his third-floor apartment to the ground, without stairs. He also had the presence of mind and ability to climb a fence, proceed through a vacant lot, and walk directly to a fire station.

      In Commonwealth v. Deconinck, 480 Mass. 254, 255, 256, 103 N.E.3d 716 (2018), we declined to exercise our authority under G. L. c. 278, § 33E, and upheld the defendant's conviction of murder in the first degree on a theory of extreme atrocity or cruelty. We did so despite evidence of intoxication and evidence suggesting that the killing may have been done in self-defense or in the midst of sudden combat or heat of passion. Id. at 255, 258-259, 103 N.E.3d 716. The Deconinck case, however, is readily distinguishable from the present case. First and foremost, the evidence in support of a verdict of murder in the first degree on a theory of extreme atrocity or cruelty in Deconinck was overwhelming. Indeed, there was no challenge to the sufficiency of the evidence on appeal. The defendant in Deconinck inflicted sixty-nine stab wounds on the victim, including a deep stab wound to the victim's chest, and two deep stab wounds to his back that pierced his organs. Id. at 257, 103 N.E.3d 716. Here, the evidence of deliberate premeditation, the only theory of murder in the first degree before the jury, was well short of compelling. There is no evidence as to how or why the defendant killed the victim, and the cause of death appears to have been a single stab wound to the victim's neck. Secondly, in Deconinck, the "issue of self-defense, which was the central theory of defense, was fully aired at trial." Id. at 273, 103 N.E.3d 716. Here, the jury were deprived of the strongest evidence of intoxication. It is true that the defendant in Deconinck, like the defendant here, had been drinking and consuming drugs, and that his BAC was 0.11 when measured at the hospital, suggesting it was 0.15 or 0.16 at the time of the killing. Id. at 259-260, 103 N.E.3d 716. However, that BAC was approximately one-half that of the defendant in this case. Finally, in Deconinck, there was evidence from a percipient witness who observed the defendant escalate the level of violence with the victim. Id. at 258-260, 103 N.E.3d 716. Here, the precipitating cause of the murder is a mystery.