Commonwealth v. Souza

• Court: Massachusetts Supreme Judicial Court
• Decided: August 14, 2023
• Docket: SJC 13357
• Status: Published

Opinion

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SJC-13357

COMMONWEALTH vs. JEFFREY SOUZA.

Bristol. April 5, 2023. - August 14, 2023.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

Homicide. Firearms. Assault and Battery by Means of a Dangerous Weapon. Self-Defense. Evidence, Self-defense, Prior violent conduct. Practice, Criminal, Instructions to jury, Argument by prosecutor, Assistance of counsel.

Indictments found and returned in the Superior Court Department on March 5, 2015.

The cases were tried before E. Susan Garsh, J.; a motion for postconviction relief, filed on December 26, 2019, was considered by Thomas J. Perrino, J., and a motion for reconsideration was also considered by him.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Matthew V. Soares for the defendant. Stephen C. Nadeau, Jr., Assistant District Attorney, for the Commonwealth.

LOWY, J. During a physical altercation, the defendant,

Jeffrey Souza, shot and killed Kyle Brady, the victim. 2

Thereafter, a Superior Court jury convicted the defendant of

murder in the second degree, assault and battery by discharge of

a firearm, unlawful possession of a firearm, and unlawful

possession of a loaded firearm. At trial, the defendant's

theory was that he killed the victim in lawful self-defense.1 In

support of that theory, the defendant sought to introduce so-

called Adjutant evidence or "evidence of specific incidents of

violence allegedly initiated by the victim." Mass. G. Evid.

§ 404(a)(2)(B) (2023). See Commonwealth v. Adjutant, 443 Mass.

649 (2005). The trial judge allowed the defendant to introduce

evidence of numerous violent incidents initiated by the victim.

However, the judge limited the testimony about these incidents

to evidence of the victim instigating violence and barred

additional testimony describing the entire violent event. On

appeal, among other issues, the defendant contends that the

judge committed an error of law in misconstruing our Adjutant

jurisprudence by limiting such evidence to the victim's first

act of violence, rather than allowing evidence of the entire

violent interaction. He further argues error in the judge's

instructions limiting the jury's consideration of the admitted

Adjutant evidence only as to who attacked whom first in the

1 The defendant also suggested that the shooting was an accident. He raises no issue pertaining to that claim on appeal. 3

altercation. Therefore, we address when specific incidents of

violence may be admitted in evidence pursuant to Adjutant and

its progeny, including Commonwealth v. Chambers, 465 Mass. 520

(2013), the scope of such evidence, and the permissible purposes

for which a fact finder may consider such evidence.

We take this opportunity to reiterate that Adjutant

evidence is one of the few narrow exceptions to the general bar

on propensity evidence. In a case involving a claim of self-

defense, evidence of specific acts of violence initiated by the

victim under Adjutant are admissible in two specific

circumstances: (1) as to the identity of the first aggressor

when the first aggressor is disputed; and (2) "as to which

person [in a confrontation] escalated the potential for violence

through the use or threat of deadly force." Commonwealth v.

Deconinck, 480 Mass. 254, 263 (2018). We emphasize that

Adjutant evidence is admissible only when one or both of the

following issues are in dispute: to determine (1) who started

the confrontation; or (2) who escalated the confrontation by

using or threatening to use deadly force.

We further emphasize that Adjutant evidence is not strictly

limited to evidence of the victim initiating violence or

throwing the first punch. Rather, when the question of who

started the fight or who was the first to introduce deadly force

is at issue as part of a defendant's claim of self-defense, 4

evidence of the entire violent incident initiated by the victim

is potentially admissible to give the jury a full picture, thus

allowing them to make an informed decision in determining who

the first aggressor was. Deconinck, 480 Mass. at 263. The

admissibility of this evidence is always subject to the broad

discretion afforded to the trial judge "in evaluating . . . and

allowing the admission of 'so much of that evidence as is

noncumulative and relevant to the defendant's self-defense

claim.'" Id., quoting Adjutant, 443 Mass. at 663.

Here, as we shall explain, the trial judge curtailed the

examination of numerous witnesses testifying about violent

instances initiated by the victim by limiting the testimony to

the victim's initiation of violence. The judge's ruling

excluding the additional testimony about the violent

interactions demonstrates her belief that the objected-to

testimony exceeded both the scope and the purpose of Adjutant

evidence. As such, the judge committed an error of law in

ruling on this evidence. See Commonwealth v. Guilfoyle, 396

Mass. 1003, 1004 (1985). However, we ultimately discern no

prejudice from its exclusion. We also discern no error in the

judge's jury instruction regarding the jury's consideration of

Adjutant evidence.

We acknowledge, however, that the jury instruction

regarding Adjutant evidence contained within the Model Jury 5

Instructions on Homicide 34 & nn.81-82 (2018) could more

concisely and understandably explain the purpose and

admissibility of Adjutant evidence. We accordingly provide an

Appendix containing a model jury instruction regarding the use

of Adjutant evidence that is approved and recommended by this

court.

The defendant's other claims of error regarding improper

closing argument and ineffective assistance of counsel provide

no basis for relief. We affirm the defendant's convictions of

murder in the second degree and assault and battery by means of

discharging a firearm and the orders denying his motions for a

new trial and for reconsideration. However, pursuant to our

decision in Commonwealth v. Guardado, 491 Mass. 666, 690, 693

(2023), we vacate the defendant's convictions of carrying a

firearm without a license and carrying a loaded firearm without

a license.

Background. The defendant's convictions stem from a fight

and subsequent shooting that occurred near a park in Fall River

during the early morning hours of January 1, 2015, and resulted

in the victim's death. Prior to the fatal shooting, there had

been a long-standing feud between the victim and the defendant,

which centered around Courtney Morrison, who was, when the feud

began, the victim's girlfriend but had previously been the

defendant's girlfriend and was the mother of the defendant's 6

children. Between August 2014 and December 2014, the victim

repeatedly sent the defendant threatening messages. In some of

these messages, the victim challenged the defendant to a fight.

The defendant generally ignored the messages or responded by

telling the victim to "chill out."

On the evening of December 31, 2014, the defendant and his

friends encountered the victim's friend Kyle Emond at a bar in

Fall River. At trial, there was conflicting testimony about

this encounter. Emond testified that he heard the defendant say

that "he had something for [the victim],", and that Emond should

"[t]ell [the victim] to meet [the defendant] at [the park]" in

Fall River. But the defendant testified that he asked Emond to

call the victim to make peace because whenever the defendant

tried to do so, the victim threatened him.

Ultimately, Emond called Christopher Silvia, who was out

that evening with a group of friends, including the victim and

the victim's sister, Brittany Brady.2 While Emond was talking to

Silvia, the victim took Silvia's cell phone and walked away with

it. When the victim returned to Silvia and his group of

friends, the victim was "angry" and "didn't look too happy."

The victim told Silvia and his friends that he was leaving to

2Because Brittany Brady shares a surname with her brother, the victim, we refer to her by her first name to avoid confusion. 7

meet the defendant "for a fist fight." Brittany told the victim

that he was not going to the fight alone. Silvia, Brittany, and

the victim got into Silvia's car and drove to the park. At

around the same time, Emond and one of his friends drove to the

park, while the defendant and some of his friends drove to the

park separately.

The fight that resulted in the defendant shooting the

victim unfolded very quickly. Various people, in support of

both the defendant and the victim, were present near the park,

and the jury heard various accounts of how the fight transpired.

Undisputed, however, was that during the confrontation the

defendant carried a gun, produced it, and fired it. Two

gunshots were fired during the fight at an interval of

approximately sixteen seconds apart. The defendant testified

that during the fight he fired what he characterized as a

"warning shot." A silver revolver covered in blood was found at

the scene of the victim's death.3 The medical examiner

determined that the victim's cause of death was a single gunshot

wound to his chest.

3 On December 24, 2014, the defendant brought a revolver to a party. The defendant testified that he had a silver revolver with him near the park but that it was not the same one that he had brought to the Christmas Eve party. However, a witness who saw the revolver at the Christmas Eve party testified that the revolver found near the victim's body resembled the revolver that the defendant had at the party. 8

Because the primary issue on appeal involves Adjutant

evidence, the issue of how the fight began is of paramount

importance. Witnesses testified to various versions of how the

fatal confrontation began.

Under one version of events, when the victim's car arrived

at the park, the victim jumped from the car while it was still

moving and ran off. The next time that the defendant and victim

were seen, they were standing face to face, and one witness

heard the victim say something along the lines of, "You're not

going to shoot me." After a loud bang, the victim and defendant

were seen wrestling each other.

According to a second version of events, after arriving

near the park, the victim ran toward the car where the defendant

was sitting in the front passenger's seat. The victim opened

the car door in an attempt to get at the defendant, but the

defendant jumped out of the car, and then both the defendant and

the victim ran off.

The defendant testified that he arrived near the park

before the victim and decided to leave and have someone else

stay to talk to the victim. As the defendant was walking away,

someone tackled him from behind. When he got up from the

ground, the defendant saw the victim, Emond, Brittany, and

Silvia all running toward him. The defendant then pointed the

gun in the air and yelled at them to stop. When they did not 9

stop, he "fire[d] off a warning shot." Thereafter, undeterred,

the group attacked the defendant, and during the struggle the

gun went off a second time.

The jury found the defendant guilty of murder in the second

degree, assault and battery by means of discharging a firearm,

carrying a firearm without a license, and carrying a loaded

firearm without a license. The defendant filed a timely notice

of appeal. In December 2019, the defendant filed a motion for a

new trial. The motion was denied without a hearing by a

different judge.4 Thereafter, the defendant filed a motion for

reconsideration, which was also denied. The defendant then

filed another notice of appeal, and the Appeals Court

consolidated the defendant's direct appeal with his appeal from

the orders denying his motions for a new trial and

reconsideration. We then transferred the case sua sponte to

this court.

Discussion. Because the issues in this case deal with the

admission of character evidence pursuant to Adjutant, 443 Mass.

at 663-667, we briefly discuss character or propensity evidence

more generally to put the issue in context before specifically

addressing the purpose and admissibility of Adjutant evidence.

4 The motion was decided by a different judge as the trial judge had since retired. 10

"Evidence of a person's bad character is generally not

admissible for the purpose of proving that he acted in

conformity with it." Commonwealth v. Daley, 439 Mass. 558, 562

(2003). Specific acts of bad conduct may be relevant and

admissible for a nonpropensity purpose such as state of mind,

intent, knowledge, or modus operandi, but as a general rule

evidence of such acts cannot be used for the purpose of

establishing the defendant's bad character or propensity to

commit the crime charged. Id. at 562-563. Notably, if

character evidence is misused "either in the examination of a

witness or in closing argument, we have long recognized that

instructions from the trial judge may mitigate any prejudice."

Id. at 564.

In certain very limited circumstances, the defendant may

offer evidence of a pertinent character trait of the victim.

See Mass. G. Evid. § 404(a)(2)(B)-(C). The defendant may offer

evidence known to the defendant of the victim's reputation for

violence to demonstrate, when relevant, the defendant's

reasonable apprehension of the victim. See, e.g., Commonwealth

v. Fontes, 396 Mass. 733, 735-736 (1986). See also Mass. G.

Evid. § 404(a)(2)(C). He or she may also offer, for the same

purpose, evidence of specific violent acts by the victim that

were previously known to the defendant and evidence of threats

to the defendant allegedly made by the victim and communicated 11

to the defendant by the victim or a third party. See, e.g.,

Fontes, supra; Commonwealth v. Edmonds, 365 Mass. 496, 499-500

(1974). See also Mass. G. Evid. § 404(a)(2)(C). Often

understandably confused with character evidence admissible for

propensity purposes, this evidence is not propensity evidence

and may not be considered for propensity purposes. Rather, it

is relevant and admissible evidence relating to the defendant's

state of mind. See, e.g., Commonwealth v. Correia, 492 Mass.

220, 227 (2023) ("defendant argued that it was reasonable for

him to assume that the victim had a gun at the park because the

defendant had seen the victim's social media posts that depicted

the victim with a gun"). See also Adjutant, 443 Mass. at 654

("Massachusetts has long followed the evidentiary rule that

permits the introduction of evidence of the victim's violent

character . . . as it bears on the defendant's state of

mind . . .").

1. Adjutant evidence. With this context in mind, we now

discuss Adjutant evidence. "Notwithstanding our usual

hesitation to allow the admission of character evidence to prove

conduct" in conformity therewith, pursuant to Adjutant, and as

subsequently clarified in Chambers, there is a narrow exception

to the general prohibition on character or propensity evidence

that allows the admission of specific acts of violent conduct by

a victim to be admitted in evidence and considered for 12

propensity purposes. Adjutant, 443 Mass. at 660. See Chambers,

465 Mass. at 528-530. In Adjutant, supra at 664, we held that

"where the identity of the first aggressor is in dispute and the

victim has a history of violence, . . . the trial judge has the

discretion to admit evidence of specific acts of prior violent

conduct that the victim is reasonably alleged to have initiated,

to support the defendant's claim of self-defense," regardless of

whether the defendant knew of the victim's prior violent acts.

This evidence "may be admitted as tending to prove that the

victim and not the defendant was likely to have been the 'first

aggressor'" because it may show "that the victim acted in

conformance with his character for violence" on the occasion in

question. Id. at 654.

Subsequently, in Chambers, we clarified "that the term

'first aggressor' is not limited to the person who provokes or

initiates" the conflict. Deconinck, 480 Mass. at 263, citing

Chambers, 465 Mass. at 528-530. Rather, in the context of

Adjutant evidence, the term "first aggressor" encompasses both

the person who started the fight and the person who first

escalated a nondeadly fight into a deadly one by either the

threat or use of deadly force.5 See Chambers, supra. See also

Deconinck, supra.

5 While not at issue in this case, it is worth noting that if a defendant introduces Adjutant evidence, "the prosecution 13

"[A]s often occurs [in cases where] self-defense is at

issue, there [can be] confusing and conflicting evidence of what

actually happened and a dispute about the identity of the first

aggressor." Commonwealth v. Morales, 464 Mass. 302, 307 (2013).

The purpose of Adjutant evidence "is to give the jury a full

picture of the altercation so as to make an informed decision

about the identity of the initial aggressor." Deconinck, 480

Mass. at 263, quoting Commonwealth v. Pring-Wilson, 448 Mass.

718, 737 (2007). Our rationale for creating this exception to

the general prohibition on propensity evidence "can be found in

the view that evidence reflecting the victim's propensity for

may rebut by introducing evidence of the victim's propensity for peacefulness." See Mass. G. Evid. § 404(a)(2)(B) note, citing Adjutant, 443 Mass. at 666 n.19. We also held in Commonwealth v. Morales, 464 Mass. 302, 303 (2013), that "where a defendant offers Adjutant evidence, the Commonwealth may offer evidence of the defendant's prior violent acts, provided that the Commonwealth gives the defendant advance notice of its intent to offer such evidence 'and the trial judge determines that,'" Chambers, 465 Mass. at 521 n.1, quoting Morales, supra, "its probative value is [not] outweighed by the risk of unfair prejudice to the defendant," Commonwealth v. Crayton, 470 Mass. 228, 249 & n.27 (2014) (clarifying standard for determining admissibility of bad act evidence). See Commonwealth v. Moore, 480 Mass. 799, 809 n.9 (2018).

"Our case law has not always been consistent regarding the [applicable] standard[s] for excluding evidence." Moore, supra. In Crayton, supra, we clarified that the "more exacting standard" of admissibility applies to bad act evidence. We acknowledge that such an inconsistency appeared in Chambers where we discussed the Commonwealth's ability to rebut the defendant's Adjutant evidence with evidence of the defendant's bad acts. See Chambers, 465 Mass. at 521 n.1. 14

violence has substantial probative value and will help the jury

identify the first aggressor [or the first to initiate or

threaten deadly violence] when the circumstances of the

altercation are in dispute." Adjutant, 443 Mass. at 656.

"Whether [the victim] was a violent [person], prone to

aggression . . . , 'throws light' on the crucial question at the

heart of" such cases -- who attacked whom first or who escalated

the situation to one involving deadly force. Id. at 657-658,

quoting Commonwealth v. Woods, 414 Mass. 343, 356, cert. denied,

510 U.S. 815 (1993). And "[t]o decide what really occurred the

jury need[] all the available facts, including evidence of [the

victim's prior violence]." Adjutant, supra at 659, quoting

People v. Lynch, 104 Ill. 2d 194, 200 (1984).

We recognize that because Adjutant evidence is propensity

evidence "admitted expressly 'for the purpose of showing that

the victim acted in conformance with his [or her] character for

violence,' . . . there [is] a risk both of prejudice and of

misunderstanding on the jury's part as to the purpose of its

admission." Morales, 464 Mass. at 307, quoting Adjutant, 443

Mass. at 654. It is the trial judge's role to take action to

mitigate such risks. See Commonwealth v. Kapaia, 490 Mass. 787,

798 (2022), quoting Commonwealth v. Rollings, 354 Mass. 630, 638

(1968) ("The parties are entitled to have a jury appropriately

guided at all stages by the trial judge, whose proper 15

participation is essential to fair trial by jury"). Indeed,

"[i]t is the judge's function to act as the 'guiding spirit and

controlling mind at a trial,'" Kapaia, supra, quoting

Commonwealth v. Rivera, 441 Mass. 358, 368 (2004), and in that

guiding role, "[i]t is for the trial judge to evaluate the

proffered [Adjutant] evidence's probative value and admit so

much of that evidence as is noncumulative and relevant to the

defendant's self-defense claim," Adjutant, supra at 663. The

judge's discretion "to exclude marginally relevant or grossly

prejudicial evidence" is important, as it "prevent[s] the undue

exploration of collateral issues." See id. Moreover, it is

incumbent on the trial judge to use adequate jury instructions

to further mitigate prejudice and confusion "by delineating the

precise purpose for which the [Adjutant] evidence is offered."

Id. at 664.

a. Adjutant evidence in this case. In light of the

foregoing principles, we turn to the specifics of this case.

The Adjutant evidence in this case included testimony by police

officers regarding multiple instances in which the victim

started a fight at a restaurant or bar, ultimately resulting in

him fighting with police officers. During testimony of two of

the officers, after defense counsel elicited testimony about how

the violent incidents began, the prosecutor objected to further

questions about how the confrontation continued. 16

Specifically, after the prosecutor's initial objections

during the first officer's testimony, the parties had the

following conversation at sidebar:

The judge: "It seems to me you have established that was the first occasion with violence with this individual, that he kicked him. Anything further I don't see as --"

Defense counsel: "There's, I guess, what's the relevancy of anything once you have established that he was a violent individual who kicked out and specific acts of violence, that he kicked -- this person approached him, he kicked at him or someone -- at him."

The judge: "But --"

Defense counsel: "Well, the relevancy is that [the victim] is not an individual who stops, it takes a lot to subdue him. I think that's important."

The judge: "That's not Adjutant, that's --"

The prosecutor: "It's well beyond the scope, I would say, Judge."

The judge: "Prior conduct showing a propensity, that's not Adjutant. Adjutant you get to show that someone was the first to act in a violent manner toward someone else. You have done that. What they did afterwards, I don't think it's beyond -- that is creating trials within trials. It's polluting the trial."

After defense counsel elicited from the second police

officer that the victim started another physical fight, the

prosecutor objected, and the following exchange occurred at

sidebar:

The judge: "What do you anticipate the response to be?"

Defense counsel: "I think the response is going to be that he wrestled with him, then he had ta[s]ed him a couple of times to stop him from kicking. That's important." 17

The prosecutor: "Again, Judge, same objection as previously, this doesn't go to Adjutant at this point."

The judge: "I'll sustain the objection."

The defendant contends that the officers should have been

allowed to continue their testimony and explain the full scope

of each violent incident initiated by the victim. Based on

police reports about these incidents, the defendant contends

that the first officer would have explained that the victim's

violence did not stop after the victim was handcuffed. Rather,

it continued while he was being transported to the police

station, and persisted even after he arrived at the police

station. The defendant explains that the second officer would

have testified that the victim's violence was so severe that the

officer needed to tase the victim multiple times in order to

subdue him. The defendant argues that this testimony concerning

the entirety of the violent incidents was admissible and

consistent with the purposes of Adjutant because it demonstrated

the victim's propensity for violence and, specifically, that the

victim was prone to initiate violence and that, when he did so,

he was unrelenting and would inevitably continue even when

presented with lawful opposition. The defendant contends that,

in ruling this evidence inadmissible, the judge's statements

demonstrate that she believed Adjutant evidence was strictly

limited to evidence of the victim initiating violence, rather 18

than the whole violent incident. By contrast, the Commonwealth

argues that the judge merely exercised her discretion under

Adjutant to exclude the remainder of the evidence after

considering its probative value and prejudicial effect.

We take this opportunity to emphasize that Adjutant

evidence is not strictly limited to testimony that the victim

initiated a violent incident or started a fight. In cases

involving a claim of self-defense, where the identity of the

first aggressor is in dispute, trial judges have discretion to

admit in evidence "specific incidents of violence," Adjutant,

443 Mass. at 650, or put another way, "specific acts of prior

violent conduct," Morales, 464 Mass. at 307, that the victim is

reasonably alleged to have initiated. See, e.g., Deconinck, 480

Mass. at 263-264; Chambers, 465 Mass. at 529-531; Adjutant,

supra at 650, 664. While we have referred to both prior "acts"

and "specific incidents" to describe this evidence, our case law

has always maintained that the focus is on the victim's prior

violent behavior. See, e.g., Adjutant, supra at 650 ("we are

persuaded that evidence of a victim's prior violent conduct may

be probative of whether the victim was the first aggressor").

Nothing in our jurisprudence has limited this evidence to only

the victim's initial act. Such a limitation would be contrary

to the primary purpose of Adjutant evidence: providing the jury

with a "full picture" including propensity evidence, so that the 19

jury may "make an informed decision about the identity of the

initial aggressor." Deconinck, supra at 263, quoting Pring-

Wilson, 448 Mass. at 737. See Adjutant, supra at 658-659.

Where a defendant seeks to introduce Adjutant evidence of a

victim's violent conduct, the conduct must involve instances

where the victim initiated the violence. If that condition is

satisfied, the entirety of the violent event or incident

initiated by the victim is potentially admissible.

The admission of Adjutant evidence is subject to the

careful discretion of the trial judge, who "must carefully

examine the particular circumstances of the case, and weigh the

probative value of such evidence against its prejudicial

effect." Morales, 464 Mass. at 312 n.16. And in the exercise

of that discretion, a judge may reasonably exclude evidence

regarding entire instances of victim-initiated violence, or

alternatively limit the extent that a witness could testify

about a particular violent incident initiated by a victim.

We now turn to the judge's exclusion of the evidence at

issue in this case. "We do not disturb a judge's decision to

admit [or exclude] evidence absent an abuse of discretion or

other legal error." Zucco v. Kane, 439 Mass. 503, 507 (2003).

A judge abuses his or her discretion where the judge made "a

clear error of judgment in weighing the facts relevant to the

decision, . . . such that the decision falls outside the range 20

of reasonable alternatives." Deconinck, 480 Mass. at 264,

quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). A

judge's failure to recognize that he or she has discretion is

necessarily an error of law. See Guilfoyle, 396 Mass. at 1004

("if a judge admits a record on the mistaken belief that he has

no discretion to exclude it, he has committed an error of law in

failing to recognize that he had discretion"). See also, e.g.,

Commonwealth v. Harris, 443 Mass. 714, 728-729 (2005) ("The

judge below thus erred in declining to exercise any discretion

. . . . That the exercise of discretion could, had it been

undertaken, permissibly have resulted in the same decision to

exclude the [evidence] does not necessarily insulate the error

from reversal"); Commonwealth v. Knight, 392 Mass. 192, 194

(1984) ("[I]t is the duty of the judge to exercise [discretion],

and it is error as a matter of law to refuse to exercise it"

[citation omitted]); Commonwealth v. Fredette, 56 Mass. App. Ct.

253, 259 n.10 (2002) ("Failure to exercise discretion is itself

an abuse of discretion").

But reversal is warranted only where the requisite

prejudice to the aggrieved party is present.6 The amount of

6 The defendant contends that reversal is required in this case based on our statement in Adjutant that "[w]here the record shows that the judge has failed to exercise discretion, there exists an error of law requiring reversal" (citation omitted). Adjutant, 443 Mass. at 666. This statement from Adjutant has been stated both directly and with slight variation in several 21

prejudice required to warrant reversal ultimately depends on

whether the aggrieved party objected to the judge's evidentiary

ruling. Where a party has objected to the judge's ruling, we

apply the prejudicial error standard. "This means that we

inquire[] whether there is a reasonable possibility that the

error might have contributed to the jury's verdict" (quotation

and citation omitted). Commonwealth v. Wolfe, 478 Mass. 142,

150 (2017). "An error is not prejudicial if it did not

influence the jury, or had but very slight effect" (quotation

and citation omitted). Id. However, where a party has not

objected, we must determine whether the error resulted in a

substantial risk of a miscarriage of justice. See, e.g.,

Commonwealth v. McCoy, 456 Mass. 838, 845-846 (2010). A

substantial risk of a miscarriage of justice occurs when we have

a "serious doubt whether the result of the trial might have been

prior cases. See, e.g., Commonwealth v. Boyer, 400 Mass. 52, 57 (1987). We now acknowledge that the portion of the sentence indicating that reversal is required was a misstatement of law.

There are only a small number of instances where an error at trial, in and of itself, requires reversal even without a showing of prejudice. See, e.g., Commonwealth v. Oberle, 476 Mass. 539, 545 (2017) ("An erroneous denial of a peremptory challenge is a structural error, requiring reversal without a showing of prejudice"). Evidentiary rulings involving Adjutant evidence do not fall into that narrow category. Rather, "[w]here the record shows that the judge has failed to exercise discretion, there exists an error of law requiring" a determination whether the prejudice created by the error, as dictated by the applicable standard of review, warrants reversal. See Adjutant, supra. 22

different had the error not been made" (citation omitted).

Commonwealth v. Valentin, 470 Mass. 186, 189 (2014).

Although admittedly a close call, we agree with the

defendant that the trial judge failed to recognize the scope of

admissible Adjutant evidence and that her ruling was an error of

law. Specifically, the judge's statement that "[p]rior conduct

showing [the victim's] propensity" is not Adjutant evidence is

inconsistent with our Adjutant jurisprudence. Adjutant evidence

is by definition propensity evidence, although propensity

evidence admitted in limited circumstances, in a specific form,

and for a limited purpose. See, e.g., Commonwealth v. Camacho,

472 Mass. 587, 593 (2015); Chambers, 465 Mass. at 529-530;

Adjutant, 443 Mass. at 660. Moreover, the judge's statement

intimating that evidence of what a victim did after initiating

violence was beyond the scope of Adjutant demonstrates a belief

that Adjutant evidence is strictly limited to evidence that a

victim initiated violence, as opposed to evidence of the over-

all violent occurrence. Therefore, based on the judge's

statements, we conclude that the judge mistakenly believed she

did not have discretion to allow evidence regarding the entirety

of the violent incidents initiated by the victim. As such, her

failure to recognize her discretion necessarily constitutes 23

error.7 See, e.g., Knight, 392 Mass. at 194. Because the judge

erred in sustaining the Commonwealth's objection over defense

counsel's protests, we apply the prejudicial error standard and

must determine whether failing to admit evidence regarding the

entirety of these two violent events "did not influence the

jury, or had but very slight effect" (citation omitted).

Commonwealth v. Bregoli, 431 Mass. 265, 273 (2000). See

Commonwealth v. Wray, 88 Mass. App. Ct. 403, 405-406 (2015). We

conclude that the error was not prejudicial.

"[W]e do not speculate as to what the judge would have done

had she recognized her discretion," Adjutant, 443 Mass. at 666,

but ultimately we discern no prejudice from the exclusion of the

additional testimony in light of the evidence that was admitted

in support of the defendant's theory of self-defense. Pursuant

to Adjutant, evidence of these three separate violent acts by

the victim were admitted, all of which showed the victim

initiating physical violence and ultimately fighting with police

officers. Specifically, one officer testified that while the

officer was working a paid detail at a bar in Fall River, the

victim started a fight in an elevator and ultimately fought with

both bouncers and the officer himself before the officer was

7 We emphasize, however, that the judge has wide discretion as to what, if any, part of the specific instance of conduct should be admitted on the issue of who was the first to initiate violence or who was the first to threaten or use deadly force. 24

able to place the victim under arrest. The officer told the

jury that he needed the bouncers' help to arrest the victim

because the victim would not stop fighting. A second officer

testified about how on a different occasion, at a different bar,

three officers intervened in a fight involving the victim. The

officer described how when he told the victim to stop fighting,

the victim not only did not stop fighting, but also responded by

kicking the officer. Finally, a third officer testified about

another incident at a bar. That officer explained that the

victim got involved in yet another fight at a bar and the police

officer went to escort the victim out of the bar. Rather than

leave the bar, the victim "ripped his arm away from [the

officer]." The victim then shoved the officer, and "a physical

altercation between [the victim and the officer] ensued."

Moreover, the defendant testified that the victim had a

reputation as a fighter. While not Adjutant evidence, this

evidence was admitted as to the state of mind induced in the

recipient of this knowledge -- the defendant. See, e.g.,

Fontes, 396 Mass. at 735 ("A defendant may present evidence of

the victim's reputation as a violent or quarrelsome person and

of his own knowledge of that reputation . . ."). See also

Adjutant, 443 Mass. at 654 (victim's reputation as violent

person and instances of victim's prior acts of violence are

admissible "if known to the defendant, as it bears on the 25

defendant's state of mind and the reasonableness of his action

in claiming to have acted in self-defense"). The jury also

heard evidence about the repeated and quite explicit threats

that the victim sent to the defendant, including that the victim

"wanted to kick [the defendant's] ass," that the victim "was

going to break [the defendant's] neck," that the victim "wanted

[to] bust [the defendant's] head," and that the victim was going

to "videotape [himself beating the defendant] and put it on

YouTube." See, e.g., Edmonds, 365 Mass. at 499-500, quoting

Commonwealth v. Rubin, 318 Mass. 587, 588-590 (1945) ("Where

self defence is invoked by a defendant, threats of violence made

against him by the person hurt or killed by him are generally

admissible, when known to the defendant before the act, as

evidence of his apprehension for his own safety, and the

reasonableness of that apprehension"). We also referenced in

Adjutant this type of nonhearsay, nonpropensity evidence as it

relates to the state of mind of the recipient of the

information. See Adjutant, supra at 654.

The evidence connecting the victim with violence and the

defendant's knowledge of the victim's reputation for violence

and his threats to the defendant went largely undisputed. Based

upon the Adjutant evidence, and the evidence of the defendant's

knowledge of the victim's reputation for violence and his

previous threats to the defendant, it is doubtful that 26

additional testimony from the officers about the victim's

continued violence would have added much to the already

significant evidence of the victim's violence. See, e.g.,

Commonwealth v. Smith, 460 Mass. 385, 398 (2011); Commonwealth

v. Cyr, 433 Mass. 617, 625 (2001). We therefore discern no

prejudice flowing from the judge's error.

b. Adjutant instructions. Proper limiting instructions

are an integral part of a jury trial, and a judge's role in

crafting those instructions is critical. Bad act or propensity

evidence has a particular danger of creating undue prejudice,

and in instances where such evidence is admitted, specificity

and precision in the jury instructions both at the time the

evidence is admitted and in final instructions is key. See,

e.g., Commonwealth v. Samia, 492 Mass. 135, 148 n.8 (2023) ("We

take this opportunity to emphasize the importance of specificity

and precision in the context of ruling on bad act evidence").

While limiting instructions are essential when bad act evidence

is admitted for a nonpropensity purpose, clear and precise jury

instructions are perhaps of at least comparable importance when

Adjutant evidence is admitted because it is one of the few

instances where we allow the jury to make propensity inferences.

As relevant to the defendant's claims, the judge gave the

following instruction at trial: 27

"For purposes of determining who attacked whom first in the altercation, you may consider evidence of the deceased's prior past violent conduct, whether or not the defendant knew of it. You cannot consider such evidence for any other purposes whatsoever."

Although there were slight variations to her instructions

during the trial, the judge gave substantially similar

instructions each time Adjutant evidence was admitted and during

the final charge.8 While the defendant did not object to the

instructions at trial, he now makes two challenges on appeal.

He contends first that because the case was tried after

8 As relevant to Adjutant evidence, the Model Jury Instructions on Homicide in effect at the time of trial provided: "For the purpose of determining who attacked whom first in the altercation, you may consider evidence of the deceased's [and a third party acting together with the deceased's] past violent conduct, whether or not the defendant knew of it." Chambers, 465 Mass. at 528 n.8, quoting Model Jury Instructions on Homicide 28-29 & n.68 (2013).

Subsequently, the Model Jury Instructions on Homicide were amended in 2018. While the language quoted above remains the same, see Model Jury Instructions on Homicide 34 & n.82 (2018), the amended instructions have an additional instruction, which cites to Chambers, 465 Mass. at 528, and states:

"However, if the defendant was the first to use non-deadly force but the deceased [or a third party acting together with the deceased] was the first to use deadly force, such as by escalating a simple fist-fight into a knife fight, the defendant may claim self-defense where he responded to the escalation with deadly force."

Model Jury Instructions on Homicide 34 & n.81 (2018). Judges are encouraged "[i]n appropriate cases, [to] add [that] instruction" before giving the Adjutant instruction retained from the 2013 model instructions. See id. at 34. Compare Model Jury Instructions on Homicide 28-29 & n.68 (2013) with Model Jury Instructions on Homicide 34 & nn.81-82 (2018). 28

Chambers, the judge erred by not specifically instructing the

jury that the victim's prior violence also could be considered

to determine who escalated the confrontation by the threat or

use of deadly force. Second, he contends that under Chambers,

Adjutant evidence can be considered expansively to determine

whether the Commonwealth disproved self-defense generally, and

as such the judge's final sentence explicitly limiting the

Adjutant evidence to the issue of who attacked whom first was

also error. The defendant argues that these errors individually

and collectively created a substantial risk of a miscarriage of

justice warranting a new trial. We address each argument in

turn.

i. Failure to expand the definition of first aggressor.

"[A] trial judge is not constrained to use any particular

language in his [or her] instructions; rather he [or she] is

required only to provide a full and accurate explanation of the

governing law applicable to a particular case." Commonwealth v.

Berrio, 43 Mass. App. Ct. 836, 838 (1997). Additionally, "[a]

judge is not required to instruct on a hypothesis that is not

supported by the evidence." Commonwealth v. Gallett, 481 Mass.

662, 680 (2019), quoting Commonwealth v. Gould, 413 Mass. 707,

715 (1992).

The defendant contends that because Chambers expanded the

definition of first aggressor, he was entitled to a jury 29

instruction that explained that Adjutant evidence could be

considered to determine both who started the fight and who

escalated the fight by the threat or use of deadly force. As a

general proposition, we agree with the defendant that, because

Adjutant evidence is admissible to determine not only who

initiated the fight but also who escalated it to one involving

deadly force, the jury should, when both issues are raised at

trial, be instructed accordingly. However, just as the disputed

issues at trial ultimately determine whether Adjutant evidence

is admissible, the disputed issues at trial necessarily

determine the appropriate jury instruction.

A prerequisite to the admissibility of Adjutant evidence is

that the identity of either the first to initiate violence or

the first to escalate the conflict through the threat or use of

deadly force be in dispute. See, e.g., Camacho, 472 Mass. at

593. Where neither issue is in dispute, Adjutant evidence is

not admissible. Id. at 594 (no error in excluding Adjutant

evidence where "the primary question for the jury was not who

began the altercation or escalated it to deadly force, but

rather whether the defendant was legally entitled to use the

force that he did in defense of another"). Where only one of

those issues is in dispute, Adjutant evidence is admissible in

order for the jury to determine that one issue. See id. at 593-

594. And where both issues are in dispute, Adjutant evidence is 30

admissible in order for the jury to determine both issues. See

id. Therefore, the instruction to which the defendant contends

he was entitled is only required where the evidence demonstrates

a dispute as to who "initiated the use or threat of deadly

force." See, e.g., Chambers, 465 Mass. at 529-530. See also

Gallett, 481 Mass. at 680. Cf. Camacho, supra.

Here, the defendant's position at trial was that the victim

was killed in lawful self-defense. Like many of our cases where

Adjutant evidence was admissible, there was inconsistent

testimony about how the fatal fight began. Cf. Pring-Wilson,

448 Mass. at 723-724 (defendant's version of fight "differed

markedly" from that of witnesses). Specifically, there was

conflicting evidence about how the fight began, how it

progressed, and even how many people were involved in it.

Crucially, however, it was undisputed that during what was

essentially a fist fight, the defendant had a firearm, produced

said firearm, and fired it. Given the largely undisputed

evidence on that point, including the defendant's admission to

firing a "warning shot" after he was hit, there was no question

that the defendant was the first to introduce deadly force. See

Commonwealth v. Klein, 372 Mass. 823, 827 (1977) ("[D]eadly

force [is defined] as force intended or likely to cause death or

great bodily harm. . . . Clearly the defendant in this case

used deadly force in firing shots from a handgun"). Thus, the 31

key questions for the jury were who started the confrontation

and whether the defendant was legally entitled to use the force

that he did. Cf. Camacho, 472 Mass. at 594-596. The identity

of the person who escalated the conflict to one involving deadly

force was not in dispute. Therefore, the defendant was not

entitled to an instruction informing the jury that the Adjutant

evidence could be considered to determine who threatened deadly

force or escalated the conflict to one involving deadly force.

As such, there was no error.

While there was no error in this case, and the current

Model Jury Instructions on Homicide appropriately cite to both

Adjutant, 443 Mass. at 664, and Chambers, 465 Mass. at 528, see

Model Jury Instruction on Homicide, 33-34 & nn. 81-82 (2018), we

take this opportunity, in the Appendix to this opinion, to

revise the current instruction in order to more concisely and

understandably explain how the jury may consider Adjutant

evidence. Henceforth, where the identity of the person who

first threatened or used deadly force is at issue, a judge's

instruction should inform the jury that the victim's prior acts

of violence may also be considered in order to make that

determination. See Deconinck, 480 Mass. at 263-264. Where the

identity of the person who started the fight and the identity of

the person who escalated the fight are in dispute, a judge's

instruction should explicitly inform the jury that the victim's 32

prior acts of violence may be considered for both purposes. See

id.

ii. Final limiting sentence. The defendant next contends

that the final sentence of the judge's charge instructing the

jury that they could only consider the Adjutant evidence to

determine who attacked whom first was error. He argues that

pursuant to Chambers, 465 Mass. at 529, Adjutant evidence is

broadly admissible so that the jury may determine whether the

Commonwealth proved the defendant did not act in self-defense as

a general matter. We disagree and conclude that such an

instruction excluding from the jury's consideration the use of

the Adjutant evidence more broadly so as to determine whether

the Commonwealth had proved lack of self-defense was not error.

As explained in detail supra, we clarified in Chambers, 465

Mass. at 528-530, that the term "first aggressor" is not limited

to the person who provoked or initiated the confrontation but

includes the person who escalated a confrontation from one

involving nondeadly force to one involving deadly force. See

Deconinck, 480 Mass. at 263. While conducting our analysis in

Chambers, after explaining the origins and purpose of the rule

from Adjutant, but before clarifying the term "first aggressor,"

we made the following statements:

"It is important to note that, although Adjutant evidence may assist a jury to determine whether the defendant has lost the right of self-defense, it is not limited to this 33

purpose. In the Adjutant case, as in this case, the jury were not instructed that a first aggressor loses the right to claim self-defense, so we reasonably may infer that the contested evidence was not admitted for the purpose of addressing that issue. Rather, it was admitted for the broader purpose of giving the jury relevant information regarding the victim's prior acts of violence that may help them to evaluate the conflicting evidence, to arrive at the truth regarding the events that led to the victim's death, and ultimately to determine whether the prosecution has met its burden of proving that the defendant did not act in self-defense."

Chambers, supra at 529.

The defendant contends that this language was a

pronouncement by this court expanding the permissible use of

Adjutant evidence, such that it may be broadly considered "to

determine the overall question of whether the Commonwealth

proved that the defendant did not act in proper self-defense."

This argument takes the quoted language out of context. This

language is part of a broader discussion explaining the law of

self-defense and its intersection with Adjutant evidence before

clarifying and expanding our understanding of the term "first

aggressor." See Chambers, 465 Mass. at 528-530. And while we

have repeatedly emphasized that the purpose of our decision in

Chambers was to expand or clarify the definition of first

aggressor, see, e.g., Deconinck, 480 Mass. at 263; Camacho, 472

Mass. at 593, we acknowledge that the language upon which the

defendant relies has potential to create confusion. Therefore,

we take this opportunity to explicitly articulate the limited 34

purposes for which Adjutant evidence may be considered within

the broader context of self-defense.

Adjutant evidence is not broadly admissible to determine

whether the Commonwealth has disproved self-defense. As we

explained in our original Adjutant decision, and have

consistently reiterated in subsequent cases, Adjutant evidence

is admissible for the "limited purpose of supporting the

defendant's self-defense claim that the victim was the first

aggressor" (emphasis added). Adjutant, 443 Mass. at 660.

Adjutant evidence is exclusively admissible to help the jury

identify who initiated the conflict and who was the first person

to use deadly force when relevant to the issue of self-defense.

See Chambers, 465 Mass. at 530 ("the resolution of [who

initiated the violence or escalated the conflict by the use or

threat of deadly force] may assist the jury in deciding whether

the prosecution has met its burden of proving that the defendant

did not act in self-defense"). Cf. Camacho, 472 Mass. at 594

("Neither the identity of the person who threw the bottle nor

the identity of the person who fired shots is in dispute, and

the limited sweep of Adjutant and Chambers does not authorize

the introduction of evidence to shed light on any other

question").

Limiting the scope of Adjutant evidence is consistent with

our recognition that when the "first aggressor," as defined by 35

Adjutant, 443 Mass. at 649-650, 664, and Chambers, 465 Mass. at

528-530, is disputed, evidence about the victim's prior violent

conduct is considered relevant and probative to determining who

the first aggressor was. Comacho, 472 Mass. at 591-592.

Moreover, this limitation on Adjutant evidence strikes the

requisite balance between the primary purpose of allowing

Adjutant evidence -- "to give the jury a full picture of the

altercation so as to make an informed decision about the

identity of the first aggressor," Deconinck, 480 Mass. at 263,

quoting Pring-Wilson, 448 Mass. at 737 -- and our general

distrust of propensity evidence, Adjutant, supra at 661-662. As

such, we discern no error in the judge instructing the jury in

this case that they were not permitted to consider the victim's

prior bad acts for any purpose other than determining who

attacked whom first.

2. Prosecutor's closing argument. The defendant next

claims that the prosecutor misstated evidence in his closing

argument. He specifically takes issue with the prosecutor's

first few sentences: "'Tell Kyle Brady I've got something for

him. Tell Kyle Brady I've got something for him.' Those are

the words that this defendant used outside of [the bar] when he

was talking to [Emond]."

"Although 'counsel may argue the evidence and the fair

inferences which can be drawn from the evidence,' . . . 'a 36

prosecutor should not . . . misstate the evidence of refer to

facts not in evidence.'" Kapaia, 490 Mass. at 804, quoting

Commonwealth v. Cheng Sun, 490 Mass. 196, 221 (2022). "Such

arguments are improper." Kapaia, supra. Because there was no

objection lodged at trial, we review to determine whether any

error created a substantial risk of a miscarriage of justice.

See Commonwealth v. Carroll, 439 Mass. 547, 554 (2003).

The defendant's statement was that "he had something for

Kyle Brady," not "Tell Kyle Brady I've got something for him."

As such, the prosecutor's statement to some extent misstated the

evidence. "Because the prosecutor's statement was improper, 'we

are guided by the following factors when deciding whether' the

error created a substantial [risk] of a miscarriage of justice:

'[(1)] whether defense counsel seasonably objected to the

arguments at trial . . . [(2)] whether the judge's instructions

mitigated the error . . . [(3)] whether the errors in the

arguments went to the heart of the issues at trial or concerned

collateral matters . . . [(4)] whether the jury would be able to

sort out the excessive claims made by the prosecutor . . . and

[(5)] whether the Commonwealth's case was so overwhelming that

the errors did not prejudice the defendant.'" Kapaia, 490 Mass.

at 804 & n.13, quoting Commonwealth v. Teixeira, 486 Mass. 617,

635 (2021). No one factor is dispositive, and our ultimate

focus is whether we have a serious doubt that the result of the 37

trial might have been different had the statement not been made.

Kapaia, supra at 804 n.13. See Commonwealth v. Dirgo, 474 Mass.

1012, 1016-1017 (2016).

Although the statement was technically inaccurate, we

discern no substantial risk of a miscarriage of justice. The

prosecutor's statement was a minor deviation from what the

defendant actually said. It occupied only two lines of an

approximately fifteen-page closing argument. See Kapaia, 490

Mass. at 804-805. Moreover, the judge properly "instructed the

jury that closing arguments are not evidence and that, to the

extent an attorney's statement conflicts with their memory, it

is the jury's memory that controls." Id. at 805. See

Commonwealth v. Salazar, 481 Mass. 105, 118 (2018) (where judge

properly instructed jury that closing arguments were not

evidence, brief isolated statement was "not egregious enough to

infect the whole of the trial"). "Furthermore, '[w]e ascribe a

certain level of sophistication to the jury, and, [on this

record], have little doubt that they would not have been swayed

by this [misstatement].'" Kapaia, supra, quoting Commonwealth

v. Wilkerson, 486 Mass. 159, 181 (2020).

3. Ineffective assistance of counsel. In his motion for a

new trial, the defendant argued that trial counsel was

ineffective in failing to present additional easily obtainable

evidence about the victim's reputation for violence and 38

additional instances of prior violence initiated by the victim.

He maintains this argument on appeal.

Where, as here, the defendant claims that trial counsel was

ineffective, "we ask whether counsel's performance fell

'measurably below that which might be expected from an

ordinarily fallible lawyer,' and 'likely deprived the defendant

of an otherwise available, substantial ground of defence.'"

Commonwealth v. Henry, 488 Mass. 484, 497 (2021), quoting

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "The burden

of proving entitlement to a new trial based on ineffective

assistance of counsel rests on the defendant." Commonwealth v.

Watson, 455 Mass. 246, 256 (2009). "A defendant must show that

better work might have accomplished something material for the

defense." Id. "A strategic or tactical decision by counsel

will not be considered ineffective assistance unless the

decision was manifestly unreasonable when made" (quotation and

citation omitted). Id. Only decisions that a lawyer of

ordinary training and skill in criminal law would not consider

competent are manifestly unreasonable. Commonwealth v.

Kolenovic, 471 Mass. 664, 674 (2015), S.C., 478 Mass. 189

(2017).

Here, trial counsel's strategy in support of the victim's

self-defense claim involved showing the jury that the victim was

a "violent person with a history of getting into fights." This 39

focus on the victim's violence was present in both trial

counsel's opening statement and closing argument. And the

argument that the victim was a ferocious and violent person was

supported by the evidence. During the defendant's case-in-

chief, three police officers testified about three separate

violent fights initiated by the victim, and the defendant

himself testified about both the victim's reputation as a

fighter and the threatening messages that the victim had been

sending him in the months preceding the conflict.

In essence, the defendant's claim of ineffective assistance

of counsel is that trial counsel was ineffective by failing to

present even more evidence about the victim's violence.

Although some of evidence that the defendant contends should

have been presented involved different violent acts by the

victim, there already was powerful Adjutant evidence and

evidence regarding the defendant's knowledge of the victim's

reputation for violence that was properly admitted to support

the defendant's theory of self-defense. The evidence that the

defendant contends should have been offered would have been

admitted for the same purpose and to support the same theory of

the case, thereby rendering it cumulative.9 And "[t]he failure

9 By stating that the evidence was cumulative, we express no view on how the trial judge might have exercised her discretion to "exclude relevant evidence if its probative value is substantially outweighed by a danger of," inter alia, 40

to offer cumulative evidence is not ineffective assistance of

counsel." Commonwealth v. Drew, 447 Mass. 635, 650 (2006),

cert. denied, 550 U.S. 943 (2007). See Commonwealth v. Britt,

465 Mass. 87, 94 (2013) ("The decision not to raise cumulative

evidence merely for quantity's sake does not constitute

ineffective assistance of counsel"). Therefore, trial counsel

was not ineffective for failing to offer this additional

evidence.

4. Firearm convictions. Finally, the defendant challenges

his conviction of carrying a firearm without a license and

carrying a loaded firearm without a license based on the absence

of a jury instruction requiring the Commonwealth to prove that

the defendant did not have a valid license to possess a firearm.

Recently, in Guardado, 491 Mass. at 690, 693, we held that "to

convict a defendant of unlawful possession of a firearm, the

Commonwealth must prove as an element of the crime charged that

the defendant in fact failed to comply with the licensure

requirements for possessing a firearm" (quotation and citation

omitted). Id. at 690. Our decision was based on the United

States Supreme Court's recognition, in New York State Rifle &

Pistol Ass'n v. Bruen, 142 S. Ct. 2111, 2122 (2022) (Bruen),

that the Second Amendment to the United States Constitution

"needlessly presenting cumulative evidence" if the evidence had been offered. Mass. G. Evid. § 403. 41

protects an individual's right to carry a firearm outside the

home. For that reason, our precedent predicated on a narrower

view of the rights secured by the Second Amendment, see

Commonwealth v. Gouse, 461 Mass. 787, 807 (2012), no longer was

valid. Guardado, supra at 689-690. The Guardado holding

applied prospectively and to those cases, like this one, that

were active or pending on direct review as of the date of the

issuance of Bruen.

Without the benefit of the Supreme Court's holding in

Bruen, or of our ruling in Guardado, the judge did not instruct

the jury that the Commonwealth was required to prove an absence

of a valid license, and the defendant did not object to the

instructions. When the issue appealed is not preserved, we

usually grant relief only if the error created a substantial

risk of a miscarriage of justice. In Guardado, however, we

applied the "clairvoyance exception" to excuse the failure to

object to the absence of a jury instruction on licensure because

"the constitutional theory on which the defendant . . . relied

was not sufficiently developed at the time of trial . . . to

afford the defendant a genuine opportunity to raise his claim."

Guardado, 491 Mass. at 686, quoting Commonwealth v.

Rembiszewski, 391 Mass. 123, 126 (1984). Here, similarly, the

defendant did not have an "an adequate opportunity at the time

of his trial to raise the present issue." Guardado, supra. 42

Because the clairvoyance exception applies, "[t]he remaining

question is whether the error was harmless beyond a reasonable

doubt." Commonwealth v. D'Agostino, 421 Mass. 281, 286-287

(1995).

Here, as the Commonwealth concedes, no evidence was

admitted at trial that would suggest the defendant did not have

a license to carry a firearm. As such, we cannot say that the

judge's failure to instruct was harmless beyond a reasonable

doubt and therefore vacate the defendant's convictions of

carrying a firearm without a license and carrying a loaded

firearm without a license.10

Conclusion. For the reasons set forth supra, we affirm the

defendant's convictions of murder in the second degree and

assault and battery by discharge of a firearm and the orders

denying his motions for a new trial and for reconsideration.

However, we vacate the convictions of carrying a firearm without

a license and carrying a loaded firearm without a license and

remand for further proceedings consistent with this opinion.

So ordered.

10The issue whether retrial shall be permitted is currently pending before the court and is scheduled for oral argument in September 2023. See Commonwealth vs. Guardado, No. SJC-13315. The rescript in this opinion shall be stayed pending our decision in that case. Appendix.

Model Jury Instruction -- Adjutant evidence.

For the purpose of determining who attacked whom first in the altercation [or who escalated the potential for violence through the use or threat of deadly force], you may consider evidence of the deceased's [and a third party acting together with the deceased's] past violent conduct, whether or not the defendant knew of it. You may not consider such evidence for any other purpose.