Commonwealth v. Trinh, 458 Mass. 776

Convicted in the Superior Court of first-degree murder by deliberate premeditation and unlawful possession of a firearm.
Incident occurred Jan. 23, 2001 in Dorchester; defendant and Quang Ly involved in a confrontation at a Chinese New Year gathering; Ly fled with the defendant after a confrontation with the victim Sinh Tran.
Defendant pulled a gun and fired at the victim; initial shot misfired, then the defendant fired another shot from a distance, hitting the victim in the back as Ly was subdued by bystanders.
Scene yielded shell casings, a .38 revolver, a .22 shell casing, a jacket, and cash; cause of death was gunshot wound; evidence linked the defendant to flight and to the Jeep involved in the getaway.
Evidence included a Jeep registered with a number resembling the defendant’s known vehicle, an automobile loan promissory note in the defendant’s name recovered from the Jeep, and a house at 35 Elton Street connected to the defendant; extradition-related signatures and later arrest in 2005 supported a consciousness-of-guilt theory.
On appeal, defendant challenged the consciousness-of-guilt instruction, failure to instruct on voluntary manslaughter, alleged improper burden-shifting in malice inference from use of a firearm, and prosecutorial remarks in closing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Consciousness of guilt instruction permissible	Commonwealth argues evidence of flight supports instruction	Defendant argues instruction either unsupported or erroneous language	Permissible; flight evidence adequately supports instruction; not reversible error for language issue
Language of consciousness-of-guilt instruction	Commonwealth asserts overall charge proper	Defendant argues undue emphasis on state of knowledge improper	No reversible error; overall charge adequate
Failure to instruct on voluntary manslaughter	Commonwealth contends evidence did not require manslaughter instruction	Defendant asserts provocation theory warranted instruction	No error; insufficient provocation evidence; no due process shift
Closing argument burden shifting and police remarks	Commonwealth claims remarks did not shift burden; curative instructions mitigated	Defendant contends remarks improperly suggested defendant’s guilt or burden to prove innocence	Not reversible; curative instruction and contextual factors mitigated the impact; no prejudice beyond harmless error

Commonwealth v. Toney, 385 Mass. 575 (Mass. 1982) (evidence of consciousness of guilt may be inferred from flight or similar acts)
Commonwealth v. Stuckich, 450 Mass. 449 (Mass. 2008) (consent to use of consciousness instructions when supported by evidence)
Commonwealth v. Haraldstad, 16 Mass. App. Ct. 565 (Mass. App. Ct. 1983) (improper to instruct based on facts without reasonable record support)
Commonwealth v. Serino, 436 Mass. 408 (Mass. 2002) (standard for reviewing alleged instructional error where objection not preserved)
Commonwealth v. Ruddock, 428 Mass. 288 (Mass. 1998) (review of jury instructions in aggregate; discusses impact on verdict)