NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-352
COMMONWEALTH
vs.
NICHOLAS C. PILALAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted by a jury of second-degree murder,1 the defendant,
Nicholas C. Pilalas, appeals from the denial of his motion for a
new trial. He contends that the attorney who handled his direct
appeal (appellate counsel) was ineffective for not having raised
a claim that the prosecutor misstated the law of self-defense in
her closing argument when she repeatedly referred to the
defendant's failure to "retreat" from a dispute on a public
street. We agree that the comments were susceptible to
interpretation as an incorrect statement of law, but because the
trial judge gave a thorough and correct curative instruction, to
which trial defense counsel did not object, we conclude that
1 The defendant was also convicted of two counts of assault and battery by means of a dangerous weapon, and one count of assault and battery. they did not give rise to a substantial risk of a miscarriage of
justice. Thus, appellate counsel's failure to raise a claim of
prosecutorial misconduct did not deprive the defendant of an
available and substantial ground of defense by omitting a
significant and obvious appellate issue which may have entitled
him to relief. We affirm.
Background. The facts are set forth in detail in
Commonwealth v. Pilalas, 91 Mass. App. Ct. 1132 (2017) (Pilalas
I). As relevant here, the jury heard evidence that while
driving his car at night, the defendant encountered a group of
five young adults walking on a rural road. The defendant did
not know them, but aggressively demanded an explanation for why
they were there. After members of the group repeatedly asked
him to leave them alone, the defendant got out of his car and
confronted them, then got back in his car and started to drive
away. Just then a car drove up containing three young adult
males including the victim. After learning from the group that
the defendant had been harassing them, the three young men in
the car yelled angrily at him. The defendant became "pissed
off" and returned, demanding of the three young men what their
"problem" was. After the three young men repeatedly told the
defendant to leave, he responded that they had no right to tell
him to do so; he got out of his car, although nothing was
2 blocking its path and he could have driven away. An altercation
ensued during which the defendant fatally stabbed the victim.
During her closing argument, the prosecutor used a form of
the verb "retreat" seven times. She argued:
"Ladies and gentlemen, you're going to also hear from the Judge as he will instruct you regarding self-defense. Plain and simple, . . . this defendant has a duty, as we all do in the state of Massachusetts, to retreat before using deadly force. I think I have gone over it again and again but I'll tell you again . . . could he have retreated? I ask you to go back there and think of all the times that he had to retreat. Ask yourself who started this whole thing? Who could have retreated? Who, instead of retreating, brought a knife to a one-on-one fistfight?" (Emphases added.)
Near the end of her closing, the prosecutor summarized, "I
suggest to you that at the moment the defendant made every
single time the decision not to go home, not to retreat, not to
go in his running, working vehicle that was not blocked in,
every time he had the opportunity to retreat and every time he
refused" (emphases added).
Defense counsel objected, arguing that the prosecutor made
"a perversion" of the law of self-defense, because the defendant
had no duty to retreat from "being out on the street using
obnoxiousness back and forth." Arguing that no curative
instruction could remedy that and other issues in the
prosecutor's closing argument, defense counsel moved for a
mistrial. The judge denied the request for a mistrial, but
noted, "I do think that the assistant district attorney at times
3 blurred the boundary between suggesting properly . . . that with
some common sense on the part of the defendant the whole
situation could have been avoided . . . to suggesting that there
was an actual duty to retreat before it may have arisen. So I
will say something curative in that respect."
During his charge, the judge instructed on self-defense
from the Supreme Judicial Court's Model Jury Instructions on
Homicide 19-30 (2013), as then in effect. In discussing the
duty to retreat, the judge elaborated on the model instruction
by adding this:
"[I]t's up to you what evidence to accept, but there was testimony that the defendant was told on a number of occasions . . . to please leave, to please go and there was evidence that at those times the defendant's path was unobstructed . . . . There is no duty to depart from a public way, a street generally because somebody asks you to. There is no duty to leave or break off from a verbal argument. So the duty to [retreat] arises out of the necessity to avoid the use of physical combat and deadly force."
"So whatever relevance the evidence may have in general your focus needs to be to the extent that you consider the duty to retreat, it is the duty to retreat before resorting to physical combat and the use of deadly force. What is the situation at that point in the trial is what your focus should be."
Defense counsel did not object to the jury instructions.
After trial, trial defense counsel filed a motion pursuant
to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502
(1995), for acquittal notwithstanding the verdict, or in the
alternative for reduction of the verdict to manslaughter. In a
4 decision that another panel of this court has deemed "thoughtful
and thorough," Pilalas I, 91 Mass. App. Ct. 1132, the judge
denied the motion, recognizing that his power to reduce the
verdict under Rule 25 (b) (2) was similar to that of the Supreme
Judicial Court on review under G. L. c. 278, § 33E. The judge
noted that the Supreme Judicial Court has held that "[a] fine
line" distinguishes second-degree murder based on third-prong
malice from involuntary manslaughter, Commonwealth v. Lyons, 444
Mass. 289, 293 (2005), and that, on similar facts (stabbing
during altercation), the question whether justice required
reduction of the verdict was "very close," Commonwealth v.
Jones, 366 Mass. 805, 808 (1975). Stating that he considered
the question in this case to be "closer still," the judge
nevertheless declined to substitute his own judgment for that of
the jury.
The defendant then retained appellate counsel, who filed an
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-352
COMMONWEALTH
vs.
NICHOLAS C. PILALAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Convicted by a jury of second-degree murder,1 the defendant,
Nicholas C. Pilalas, appeals from the denial of his motion for a
new trial. He contends that the attorney who handled his direct
appeal (appellate counsel) was ineffective for not having raised
a claim that the prosecutor misstated the law of self-defense in
her closing argument when she repeatedly referred to the
defendant's failure to "retreat" from a dispute on a public
street. We agree that the comments were susceptible to
interpretation as an incorrect statement of law, but because the
trial judge gave a thorough and correct curative instruction, to
which trial defense counsel did not object, we conclude that
1 The defendant was also convicted of two counts of assault and battery by means of a dangerous weapon, and one count of assault and battery. they did not give rise to a substantial risk of a miscarriage of
justice. Thus, appellate counsel's failure to raise a claim of
prosecutorial misconduct did not deprive the defendant of an
available and substantial ground of defense by omitting a
significant and obvious appellate issue which may have entitled
him to relief. We affirm.
Background. The facts are set forth in detail in
Commonwealth v. Pilalas, 91 Mass. App. Ct. 1132 (2017) (Pilalas
I). As relevant here, the jury heard evidence that while
driving his car at night, the defendant encountered a group of
five young adults walking on a rural road. The defendant did
not know them, but aggressively demanded an explanation for why
they were there. After members of the group repeatedly asked
him to leave them alone, the defendant got out of his car and
confronted them, then got back in his car and started to drive
away. Just then a car drove up containing three young adult
males including the victim. After learning from the group that
the defendant had been harassing them, the three young men in
the car yelled angrily at him. The defendant became "pissed
off" and returned, demanding of the three young men what their
"problem" was. After the three young men repeatedly told the
defendant to leave, he responded that they had no right to tell
him to do so; he got out of his car, although nothing was
2 blocking its path and he could have driven away. An altercation
ensued during which the defendant fatally stabbed the victim.
During her closing argument, the prosecutor used a form of
the verb "retreat" seven times. She argued:
"Ladies and gentlemen, you're going to also hear from the Judge as he will instruct you regarding self-defense. Plain and simple, . . . this defendant has a duty, as we all do in the state of Massachusetts, to retreat before using deadly force. I think I have gone over it again and again but I'll tell you again . . . could he have retreated? I ask you to go back there and think of all the times that he had to retreat. Ask yourself who started this whole thing? Who could have retreated? Who, instead of retreating, brought a knife to a one-on-one fistfight?" (Emphases added.)
Near the end of her closing, the prosecutor summarized, "I
suggest to you that at the moment the defendant made every
single time the decision not to go home, not to retreat, not to
go in his running, working vehicle that was not blocked in,
every time he had the opportunity to retreat and every time he
refused" (emphases added).
Defense counsel objected, arguing that the prosecutor made
"a perversion" of the law of self-defense, because the defendant
had no duty to retreat from "being out on the street using
obnoxiousness back and forth." Arguing that no curative
instruction could remedy that and other issues in the
prosecutor's closing argument, defense counsel moved for a
mistrial. The judge denied the request for a mistrial, but
noted, "I do think that the assistant district attorney at times
3 blurred the boundary between suggesting properly . . . that with
some common sense on the part of the defendant the whole
situation could have been avoided . . . to suggesting that there
was an actual duty to retreat before it may have arisen. So I
will say something curative in that respect."
During his charge, the judge instructed on self-defense
from the Supreme Judicial Court's Model Jury Instructions on
Homicide 19-30 (2013), as then in effect. In discussing the
duty to retreat, the judge elaborated on the model instruction
by adding this:
"[I]t's up to you what evidence to accept, but there was testimony that the defendant was told on a number of occasions . . . to please leave, to please go and there was evidence that at those times the defendant's path was unobstructed . . . . There is no duty to depart from a public way, a street generally because somebody asks you to. There is no duty to leave or break off from a verbal argument. So the duty to [retreat] arises out of the necessity to avoid the use of physical combat and deadly force."
"So whatever relevance the evidence may have in general your focus needs to be to the extent that you consider the duty to retreat, it is the duty to retreat before resorting to physical combat and the use of deadly force. What is the situation at that point in the trial is what your focus should be."
Defense counsel did not object to the jury instructions.
After trial, trial defense counsel filed a motion pursuant
to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502
(1995), for acquittal notwithstanding the verdict, or in the
alternative for reduction of the verdict to manslaughter. In a
4 decision that another panel of this court has deemed "thoughtful
and thorough," Pilalas I, 91 Mass. App. Ct. 1132, the judge
denied the motion, recognizing that his power to reduce the
verdict under Rule 25 (b) (2) was similar to that of the Supreme
Judicial Court on review under G. L. c. 278, § 33E. The judge
noted that the Supreme Judicial Court has held that "[a] fine
line" distinguishes second-degree murder based on third-prong
malice from involuntary manslaughter, Commonwealth v. Lyons, 444
Mass. 289, 293 (2005), and that, on similar facts (stabbing
during altercation), the question whether justice required
reduction of the verdict was "very close," Commonwealth v.
Jones, 366 Mass. 805, 808 (1975). Stating that he considered
the question in this case to be "closer still," the judge
nevertheless declined to substitute his own judgment for that of
the jury.
The defendant then retained appellate counsel, who filed an
appeal on the merits briefing and arguing a single issue: that
the judge had erred in declining to reduce the verdict. A panel
of this court affirmed the conviction. Pilalas I, 91 Mass. App.
Ct. at 1132.
Represented by another attorney, the defendant filed a
motion for a new trial, or in the alternative for Rule 25 (b)
(2) relief, arguing that appellate counsel was ineffective for
raising only a "single, hopeless issue," but not the "stronger
5 arguments" that were available: that the trial prosecutor
committed misconduct in her closing argument by repeatedly
referring to the defendant's duty to retreat, which misstated
the law, and by inserting herself into the jury's deliberative
process by using the phrase "we know." In a comprehensive
memorandum of decision, the trial judge denied the motion,
concluding that the jury instructions cured any prejudice from
the prosecutor's references to a duty to retreat, and her use of
"we" would have been understood by the jurors as a colloquial
suggestion to review the evidence.2
Discussion. Standard of review. "A motion for new trial
is addressed to the sound discretion of the trial judge"
(citations omitted). Commonwealth v. Jacobs, 488 Mass. 597, 600
(2021). Because the judge who ruled on the motion for new trial
was also the trial judge, we extend "special deference" to his
denial of the motion (citation omitted). Commonwealth v.
Robertson, 88 Mass. App. Ct. 52, 59 n.14 (2015). We review the
judge's decision on the "motion for a new trial for an abuse of
2 The judge also denied the defendant's renewed motion for Rule 25 (b) (2) relief, again noting that this case was close, but concluding that it "is not one of those extraordinary cases where the interests of justice require the trial judge to disturb a verdict supported by the evidence." Commonwealth v. Grassie, 482 Mass. 1017, 1017 (2019). Compare Commonwealth v. Pagan, 471 Mass. 537, 542, cert. denied, 577 U.S. 1013 (2015). The defendant does not argue on appeal that the judge abused his discretion by denying the motion on this ground, and so we do not reach that issue.
6 discretion, meaning that we consider whether it resulted from 'a
clear error of judgment in weighing the factors relevant to the
decision such that the decision falls outside the range of
reasonable alternatives.'" Jacobs, supra, quoting L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Ineffective assistance of appellate counsel. In assessing
whether appellate counsel's performance deprived the defendant
of his right to effective assistance of counsel, we apply the
familiar standard of Commonwealth v. Saferian, 366 Mass. 89, 96
(1974): whether that performance fell "measurably below that
which might be expected from an ordinary fallible lawyer," and
"whether it has likely deprived the defendant of an otherwise
available, substantial ground of defence." In applying that
standard to appellate counsel's handling of the case, "we focus
on whether appellate counsel 'failed to raise a significant and
obvious issue . . . which . . . may have resulted in a reversal
of the conviction, or an order for a new trial.'" Commonwealth
v. Aspen, 85 Mass. App. Ct. 278, 282 (2014), quoting
Commonwealth v. Sowell, 34 Mass. App. Ct. 229, 232 (1993).
a. Performance of an ordinary, fallible lawyer. The trial
judge concluded that the first Saferian prong was met because
the issue raised by appellate counsel "was not a strong argument
likely to succeed," and arguing impropriety in the prosecutor's
closing argument would not have undermined, and may have
7 bolstered, the claim that a manslaughter conviction would be
more consonant with justice. We agree that the record
establishes that appellate counsel's performance fell below that
of an ordinary, fallible lawyer.
b. Otherwise available, substantial ground of defense. As
to the second Saferian prong, however, the trial judge concluded
that the defendant had not demonstrated prejudice from appellate
counsel's failure, because an appellate challenge to the
prosecutor's closing argument would not likely have resulted in
reversal of the conviction or a new trial. See Aspen, 85 Mass.
App. Ct. at 282.
1. Prosecutor's references to defendant's duty to
"retreat." As mentioned above, the trial judge recognized that
the prosecutor improperly suggested that the defendant had a
duty to retreat that is broader than the duty that the law
imposes, by repeatedly stating in her closing argument that the
defendant could have retreated at various points in his
interactions with the five pedestrians and the three young men.
During trial, the judge denied the defendant's motion for a
mistrial, instead giving the pointed curative instruction set
forth above, to which trial counsel did not object. In ruling
on the motion for new trial, the trial judge concluded that any
misstatement by the prosecutor as to the law of retreat did not
8 influence the jury's decision to convict, particularly given the
curative instruction.
The defendant asserts that we should accord "no deference"
to the trial judge's assessment of the effectiveness of his own
curative instruction. We are not persuaded. Unlike the trial
judge, we did not have the opportunity to view how the
prosecutor's argument and the judge's curative instruction
affected the jurors. See Commonwealth v. Garrey, 436 Mass. 422,
435 & n.6 (2002) (judge who struck improper testimony and gave
prompt curative instruction could see jurors' reactions and
determine necessity of mistrial). Indeed, the fact that
experienced trial counsel did not object to the judge's curative
instruction is some indication that it had its intended effect.
Cf. Commonwealth v. Moore, 489 Mass. 735, 754 (2022) (lack of
objection to prosecutor's closing "some indication" that its
tone not prejudicial [citation omitted]).
The Supreme Judicial Court's decision in Commonwealth v.
Ridley, 491 Mass. 321 (2023), is instructive. In that case, the
prosecutor argued in closing that a punch from the victim did
not amount to reasonable provocation, because "anytime there was
a fist fight, you would have the ability and the right to
eviscerate someone." Id. at 328. The Supreme Judicial Court
was concerned that the statement, to which that defendant did
not object, was "phrased broadly enough that it could be
9 interpreted as stating that a finding of reasonable provocation
is equivalent to a conclusion that the killing was justified,
which is an incorrect statement of law." Id. at 329-330.
Considering the issue under the standard of G. L. c. 278, § 33E,
the court concluded that no substantial likelihood of a
miscarriage of justice arose, particularly because of the
judge's proper instructions on voluntary manslaughter and
reasonable provocation, and repeated admonitions that the judge
provides the instructions of law. Id. at 330.
Here, the judge properly instructed on self-defense,
supplemented by the curative instruction set forth above. He
also told the jurors that they must follow the law as he gave it
to them. We conclude that the judge's curative instruction
obviated any substantial risk of a miscarriage of justice. See
Garrey, 436 Mass. at 435.
b. Prosecutor's inserting herself into jury's deliberative
process. The defendant also argues that in her closing argument
the prosecutor inserted herself into the jury's deliberative
process in two ways. First, he contends that the prosecutor
improperly used the phrase "we know" more than a dozen times
when describing evidence. For example, she said, "What do we
know based on what the defendant told you, based on what every
single witness told you?"
10 The trial judge, who was present, concluded that the
prosecutor's use of first-person pronouns was simply a means of
suggesting that the jury and the prosecutor review the evidence
together, and was not improper. Having reviewed the transcript
of the prosecutor's closing argument, we agree. See
Commonwealth v. Jenkins, 458 Mass. 791, 797 (2011) ("we know
that" and "let's start with" to introduce descriptions of
evidence in closing not improper). The prosecutor used the
phrase "we know" to introduce summaries of the evidence, not to
interject her own personal beliefs. See Commonwealth v.
Silvelo, 486 Mass. 13, 20-21 (2020) (prosecutor's phrasing,
"[w]hat we do know is what [the trooper] saw" summarized
trooper's testimony, not prosecutor's extraneous knowledge).
Second, the defendant argues that the prosecutor improperly
used the phrase, "[p]erhaps your thought process would be a
little bit different if" when referring to events that did not
occur. For example, she used that phrase to begin sentences
pointing out that it may have been different had the defendant
been on foot, or was prevented from leaving, or if anyone other
than him had been armed. Again, the trial judge concluded that
the references were a commentary on the trial evidence. See
Silvelo, 486 Mass. at 20 (in context, no error in argument "[w]e
don't know what would have happened if" trooper had reacted
immediately to seeing defendant's gun rather than waiting for
11 backup). Contrast Commonwealth v. Burts, 68 Mass. App. Ct. 684,
689 & n.2 (2007) (prosecutor improperly inserted himself into
jurors' deliberative process by commenting in closing on jurors'
facial expressions during defense closing).
Conclusion. The defendant has not shown that, if appellate
counsel had raised claims about the prosecutor's closing
argument, "'better work might have accomplished something
material for the defense.'" Aspen, 85 Mass. App. Ct. at 280,
quoting Commonwealth v. Baran, 74 Mass. App. Ct. 256, 272
(2009). Accordingly, the trial judge did not abuse his
discretion in denying the motion for new trial.
Order denying motions for new trial and to reduce the verdict affirmed.
By the Court (Vuono, Henry & Grant, JJ.3),
Clerk
Entered: May 12, 2023.
3 The panelists are listed in order of seniority.