MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On appeal from his conviction of voluntary manslaughter,
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G. L. c. 265, § 13, the defendant claims error in the denial of his motion for a new trial based on ineffective assistance of counsel, as well as error in the prosecutors opening statement and closing argument. We discern no error, and affirm.
1. Ineffective assistance of counsel. We review a judges denial of a motion for a new trial for abuse of discretion or other error of law. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Further, “[w]e afford particular deference to a decision on a motion for a new trial based on claims of ineffective assistance where the motion judge was, as here, the trial judge.” Commonwealth v. Martin, 467 Mass. 291, 316 (2014). To establish a claim of ineffective assistance of counsel, a defendant must show that trial counsels behavior fell “measurably below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). A strategic or tactical decision by defense counsel will not be considered ineffective assistance unless it was “manifestly unreasonable when made” (quotation and citation omitted). Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006).
We discern no abuse of discretion here. Defense counsel retained a forensic psychologist to evaluate the defendant for competence to stand trial and criminal responsibility and decided not to pursue an insanity defense based on the psychologists evaluation. Despite the defendants claim that a different expert may have reached a different conclusion about the viability of an insanity defense, defense counsels investigation was not so inadequate as to fall below the standard of an “ordinary fallible lawyer.” Saferian, 366 Mass. at 96. Defense counsel made a tactical decision about which expert to retain, and it was not manifestly unreasonable to rely on that experts opinion. See Commonwealth v. Kolenovic, 471 Mass. 664, 676 (2015). Defense counsel are not expected to be more expert than the experts they retain; that would impose a higher burden on defense counsel than is either reasonable or required by law.
Nor was defense counsels decision to forgo an insanity defense manifestly unreasonable. Defense counsel presented multiple other reasonable defenses, including third-party culprit, self-defense, and diminished capacity. Additionally, the jury heard the defendant testify about the rape and its effects on his mental state. Moreover, there is no indication that the defendant was prejudiced by defense counsels trial strategy; indeed, despite some damaging evidence against the defendant, the jury acquitted the defendant of first-degree murder and instead convicted him of the lesser included charge of voluntary manslaughter. The judge therefore did not abuse her discretion in denying the defendants motion for a new trial.
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2. Prosecutors opening statement and closing argument. The defendant did not object during either the prosecutors opening statement or closing argument to the statements he now challenges, so we review his claims for a substantial risk of a miscarriage of justice. See Commonwealth v. Ferreira, 460 Mass. 781, 788 (2011). “A prosecutor is permitted to argue the evidence and the reasonable inferences that may be drawn from that evidence.” Commonwealth v. Miles, 46 Mass. App. Ct. 216, 219 (1999). A claim of improper argument is “judged in light of the entire argument, the judges instructions to the jury, and the evidence actually introduced at trial.” Commonwealth v. Thomas, 429 Mass. 146, 158 (1999).
In his opening statement, the prosecutor told the jury that the victim was “viciously murdered”; that the defendant “turned that boiler room into a grisly horror chamber”; and that the upstairs neighbor would only later learn “the nightmare that was going on below him.” Similarly, in closing, the prosecutor described the victim as being “butchered so mercilessly” and “killed ․ without pity, without mercy, without sympathy.” These statements were not improper since they were supported by the evidence presented at trial and relevant to the charge of first-degree murder under the theory of extreme atrocity and cruelty. See Commonwealth v. Mejia, 463 Mass. 243, 254 (2012). Nor do these statements “rise past the level of excusable hyperbole.” Commonwealth v. Alemany, 488 Mass. 499, 512 (2021). In fact, defense counsel described the crime scene as “horrific,” “horrible,” “vicious,” and “violent” in his opening statement.
The defendant also challenges the prosecutors characterization of the defendants testimony of the rape as a “colossal outrageous lie,” “nonsense,” and a “total lie.” While a prosecutor may not express personal belief in the defendants guilt, he may challenge the defendants credibility, and argue all reasonable inferences from the evidence. See Commonwealth v. Yesilciman, 406 Mass. 736, 746 (1990). Additionally, the judge cured any potential prejudice by instructing the jury that opening statements and closing arguments were not evidence. Finally, there is no indication the jury were improperly inflamed since they acquitted the defendant of first-degree murder, returning a verdict of guilt instead on the lesser included offense of voluntary manslaughter. We discern no substantial risk of a miscarriage of justice.
Judgment affirmed.
Order denying motion for new trial affirmed.
FOOTNOTES
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. The defendant was indicted for murder in the first degree in violation of G. L. c. 265, § 1, but was acquitted of this charge by the jury.
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. To the extent that the defendant presents a distinct claim of error in the motion judges denial of an evidentiary hearing, we discern no abuse of discretion. The motion judge was familiar with the evidence since she had presided over the trial and was therefore in the best position to assess defense counsels performance. See Martin, 467 Mass. at 316. Additionally, the relevant issues were clearly framed in the submitted written materials and the record.