Heard: February 16, 2017.
found and returned in the Superior Court Department on
November 16, 2012.
cases were tried before Frank M. Gaziano, J., and a motion to
reduce the verdict was considered by him.
Elizabeth Doherty for the defendant.
S. Yeshulas, Assistant District Attorney, for the
Present: Kafker, C.J., Wolohojian, & Sacks, JJ.
October 12, 2012, at approximately 4:30 P.M., the defendant
led police on a high-speed chase through the streets of
Brockton, finally running a red light at a busy intersection
and causing a seven-car collision resulting in the death of
another driver, Marianne Kotsiopoulos. After a four- day
trial, a jury found the defendant guilty of murder in the
second degree, involuntary manslaughter,  and numerous
other crimes arising out of the collision. He now appeals
his murder conviction and the trial judge's denial of his
postconviction motion to reduce the verdict pursuant to
Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995).
The defendant argues that (1) the evidence was insufficient
to support a finding of third prong malice; (2) the
Commonwealth's closing argument was improper; (3) the
judge erred in declining to instruct that manslaughter is a
lesser included offense of murder; (4) counsel was
ineffective in failing to request an "accident"
instruction; and (5) the trial judge abused his discretion in
declining to reduce the second degree murder verdict to a
lesser offense. We affirm.
recite the evidence and the reasonable inferences to be drawn
from it in the light most favorable to the Commonwealth. See
Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979). Detectives Donahue and Carpenter of the Brockton
police department were conducting an investigation into
narcotics activity in an unmarked sport utility vehicle (the
SUV). They observed a Chevrolet TrailBlazer sport utility
vehicle, operated by the defendant, roll through a stop sign.
The detectives decided to stop the TrailBlazer; they passed
it on the left, illuminated their emergency lights, and
parked in front of it at a forty-five degree angle. Detective
Donahue, who was driving the SUV, walked around toward the
driver's side of the TrailBlazer, and Detective Carpenter
exited from the SUV's passenger side. Detective Carpenter
made eye contact with the defendant and shouted, "Stop,
police, stop, police." He watched the defendant
"looking around quickly from left to right, almost in a
panic sense, " then saw him reach down for the
gearshift. The TrailBlazer "took off" abruptly,
driving toward Detective Carpenter standing at the SUV's
open passenger side door, squeezing between it and a
telephone pole, driving over the sidewalk, and turning right
onto Crescent Street. The TrailBlazer's front bumper hit
the passenger-side door of the SUV, forcing it shut as soon
as Detective Carpenter was able to retract his foot inside.
more detectives had by then arrived. As the TrailBlazer
headed east down Crescent Street, traveling at a "high
rate of speed going in and out of traffic, " those
detectives pursued, followed by the SUV and a third police
vehicle. The TrailBlazer weaved in and out of lanes heading
both east and west, driving on the yellow center lines, while
other vehicles stopped or pulled over to allow the police
vehicles, with lights and sirens activated, to pass. The
TrailBlazer traveled on the wrong side of the road in making
a left turn onto Quincy Street, "the rim . . . riding on
the ground, " tires squealing, and rear end sliding, and
it continued north at high speed, gaining distance on the
police. Witnesses described traffic at the time as
"heavy, " "rush hour, " "bumper to
bumper, " "gridlocked, " "busy, "
and "very steady."
several hundred yards in front of the police vehicles, the
TrailBlazer sped through a red light at the intersection of
Quincy Street and Centre Street and collided with another
vehicle. The TrailBlazer's rear end went
"completely up in the air, vertical"; "if you
were in the driver's seat of the vehicle, you'd
almost be looking straight down at the ground through the
windshield." Another detective who had joined the
pursuit testified that he saw a car "go airborne"
at the intersection. A witness described it as a
"massive explosion of dust and metal [that] completely
engulfed" the intersection. The first point of impact
was the driver's side of a Jaguar, driven by Marianne
Kotsiopoulos, which bore the brunt of the collision. The
Jaguar and TrailBlazer further collided with at least five
other vehicles, a scene one witness described as "like a
TrailBlazer was equipped with an "Event Data
Retrieval" (EDR) system, which recorded the
vehicle's speed just prior to the collision. The EDR data
revealed that the TrailBlazer had accelerated at full
throttle from fifty-three miles per hour five seconds before
the impact, to sixty-four miles per hour one second before
impact, and at the moment of impact was traveling
approximately fifty-five miles per hour. The EDR system also
revealed that the brake pedal was never depressed prior to
the collision, the defendant exited the wrecked TrailBlazer,
left the scene on foot, and was apprehended nearby. After
receiving Miranda warnings, the defendant told Detective
Donahue that he "didn't mean to hurt anybody, "
"hoped everybody was okay, " and "basically
took off from [the police] because he didn't have a
license to drive." In an interview a few hours later,
the defendant told another officer that he had seen a police
car with lights in his rear view mirror but "didn't
want to stop, " because he didn't have a license, so
he "just kept driving . . . because [his] brakes
wouldn't stop for [him.]" He said that as he
approached the intersection, there were cars on his side of
the street, so he "went around them on the left side,
" into the intersection, and collided with another car.
defendant, who testified at trial, gave a version of events
largely similar to the Commonwealth's. Although the jury
were not required to credit the defendant's explanations,
we supplement the facts with portions of his testimony that
are relevant to his arguments on appeal.
day in question, the defendant planned to meet an
acquaintance and conduct a drug transaction in the area where
Detectives Donahue and Carpenter were patrolling. The
defendant was looking for and attempting to contact his
acquaintance when he approached a stop sign and noticed that
a car had pulled up behind him "out of nowhere."
The defendant perceived the car's movements as
threatening and suspicious, thought someone was trying to
"pin [him] in" and rob him, and "instinctively
panicked, " veering off to the right onto Crescent
Street. The defendant could not recall how fast he was
driving, but knew that he was passing other cars. He
testified that he "felt really threatened" and
thought his "life was in harm's way."
traveling one-half mile down Crescent Street, turning left
onto Quincy Street, and proceeding north, the defendant began
to hear sirens behind him. He looked in his rearview mirror
and saw blue lights in the distance. The defendant
"didn't know how to react, " so he "froze
up, " and by the time he looked forward again, he was
already at the intersection with Centre Street and colliding
with the other vehicles. He admitted that he did not apply
the brakes, which he testified were "getting worn
down" and not "pinpoint accurate."
defendant also admitted that he was aware at the time that
his driver's license had been suspended, but explained
that the real reason he fled was out of fear that someone was
trying to rob him, not to evade the police. The defendant
insisted that he did not know it was the police who were
pursuing him until he was nearly at the intersection where
the collision occurred. The defendant acknowledged that he
caused the collision and was responsible for