Commonwealth v. Howard

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SJC-11128

COMMONWEALTH vs. CLYDE HOWARD.

Middlesex. February 7, 2014. - October 2, 2014.

Present: Spina, Botsford, Gants, & Lenk, JJ.

Constitutional Law, Admissions and confessions, Voluntariness of
statement, Waiver of constitutional rights, Harmless error.
Waiver. Error, Harmless. Evidence, Admissions and
confessions, Voluntariness of statement, Prior misconduct,
Argument by prosecutor, Intoxication. Practice, Criminal,
Motion to suppress, Admissions and confessions,
Voluntariness of statement, Waiver, Harmless error,
Argument by prosecutor, Instructions to jury.

Indictments found and returned in the Superior Court
Department on March 19, 2009.

A pretrial motion to suppress evidence was heard by Wendie
I. Gershengorn, J., and the cases were tried before her.

Robert F. Shaw, Jr., for the defendant.
Jamie M. Charles, Assistant District Attorney, for the
Commonwealth.

BOTSFORD, J. A Superior Court jury found the defendant,

Clyde Howard, guilty of murder in the first degree on theories
 2

of deliberate premeditation and extreme atrocity or cruelty.1

The defendant appeals his conviction, arguing that: (1) the

motion judge erred in denying his pretrial motion to suppress

statements that he made to police both on the day of his arrest

and on the following day during an interview with police; (2)

the Commonwealth impermissibly focused on prior bad acts and

character evidence during trial; (3) statements made by the

prosecutor during his closing argument prejudiced the defendant

and warrant a new trial; and (4) the jury instructions on mental

impairment and the voluntariness of the defendant's statements

were erroneous and warrant reversal of his convictions.

Pursuant to our review of the entire case under G. L. c. 278,

§ 33E, we conclude that the erroneous admission of portions of

the defendant's statement to the police, combined with other

errors, require reversal of the defendant's conviction of murder

in the first degree. On remand, at the Commonwealth's option, a

verdict of murder in the second degree may be entered in lieu of

a new trial on the first degree murder indictment.

1. Background. We recite the facts as the jury could have

found them, reserving other facts for later discussion. On the

morning of January 28, 2009, the victim, Maurice Ricketts, was

1
The jury also found the defendant guilty of unlawful
possession of a firearm; unlawful possession of ammunition; and
discharging a firearm within 500 feet of a building. The
defendant does not contest those convictions in this appeal.
 3

shot in the head and killed while at his job at Baystate Pool

Supplies (Baystate), a pool supply distributor located in

Cambridge. He was shot by the defendant, who worked at Baystate

as a handyman.

Earlier that morning, at around 9 A.M., the defendant was

asked by the Baystate branch manager Derek Roczynski and

operations manager Michael Najarian, Jr., to buy breakfast for

them at a local fast food restaurant.2 After breakfast, Najarian

joined the victim in the warehouse known to Baystate employees

as the "chemical building," located directly across the street

from Baystate's offices and other warehouses. Shortly after 10

A.M., the defendant entered the front door of the chemical

building carrying a bag of trash. Singing and joking with

Najarian as he passed, he walked down a pathway toward the back

exit and out to the dumpster. This outdoor area was known to

employees as the "chemical backyard" (chemical yard). After

taking out the trash, the defendant returned through the

chemical building and proceeded to leave through the front door,

but then turned around, reentered, and exchanged words with the

victim who was working nearby. Najarian heard an "explosion of

2
The defendant claimed that after he returned from buying
breakfast, and before the shooting took place, the victim came
at him with a hammer. At trial, Michael Najarian testified that
the only hammers at Baystate Pool Supplies (Baystate) were
located in his office.
 4

yelling" between the defendant and victim, and he approached

them, "scream[ing]" for them to stop. Within moments, the

defendant reached into his right pocket, pulled out a gun, and

pointed it at the victim, who turned and ran through the

warehouse toward the back door leading to the chemical yard.

The defendant fired once, missing the victim, and then quickly

followed him. Najarian shouted twice at the defendant to "stop

it"; each time, the defendant responded, "What?", but continued

to pursue the victim while looking straight ahead toward the

back door.

After the two men ran out of the warehouse, Najarian ran to

the company offices across the street where he alerted Roczynski

and assistant manager James McGaffigan before telephoning 911.

Roczynski and McGaffigan immediately ran toward the chemical

building but heard shots coming from the chemical yard before

they reached the building entrance. They ran along the building

toward the chemical yard and peered through an opening in the

locked fence. There, they saw the defendant facing the back of

the dumpster with his arm outstretched and pointed slightly

downward, and then heard two additional shots. After each shot,

Roczynski heard the victim make a grunting sound and, after the

second, also heard the defendant mutter, "I got you." Roczynski

then shouted, "[W]hat the f are you doing"; the defendant

briefly glared at him. McGaffigan saw the defendant walk toward
 5

the back door, stop, return to the dumpster area, and fire an

additional shot. Roczynski and McGaffigan returned to the

entrance of the chemical building and Roczynski bumped into the

defendant who was coming out of the door. The defendant

muttered, "I got to get out of here," ran to a white van, and

drove away.

Roczynski, McGaffigan, and other Baystate workers rushed to

the chemical yard where they found the victim behind the

dumpster, wedged between a stack of wood pallets. He had

suffered two gunshot wounds to the head. Shortly thereafter,

paramedics responded to the scene and, finding a faint pulse,

transported him to the hospital. During transport, the victim

went into cardiac arrest, and medics performed cardiopulmonary

resuscitation on him. He was pronounced dead shortly after

arriving at the emergency room.

Later that day, at approximately 4 P.M., Sergeant Thomas J.

Teahan of the Boston police department heard a radio broadcast

to be on the lookout for the defendant in a white van in the

Roxbury area. Teahan, who was driving in Roxbury at the time,

came across a van parked alongside the road that matched the

description of the defendant's vehicle. He called for backup,

parked his vehicle to block the van, and approached the driver's

side door on foot. Teahan observed the defendant apparently

asleep in the driver's seat with a cellular telephone at his
 6

ear; he removed the defendant from the van and conducted a pat

frisk to locate weapons. When Teahan asked the defendant if he

was carrying a firearm, he replied, "No, I threw it in the

Charles River." The defendant was then placed under arrest,

handcuffed, and transported to the Boston police department

station in Roxbury for initial booking (Roxbury booking). At

the station, Teahan read the defendant the Miranda rights and

informed him that he was under arrest for murder. During the

booking, the defendant made several unsolicited statements to

Teahan.

Thereafter, State police Trooper Erik Gagnon and two

Cambridge police officers transported the defendant to the

Cambridge police department for further booking (Cambridge

booking). Gagnon detected the odor of alcohol on the

defendant's breath, as well as slurred speech and a slightly

unsteady gait while the defendant was walking, although he was

not slipping, falling, or stumbling. During the twenty-five

minute ride to Cambridge, the officers did not ask the defendant

any questions. Nevertheless, the defendant made several

unsolicited statements about the events that had transpired

earlier in the day. At around 5:15 P.M., the defendant arrived

at the Cambridge police department where he was booked, his

clothing was taken, and he was placed in a cell. Thereafter,

Gagnon and his colleagues decided that because the defendant
 7

appeared "somewhat impaired," they would wait until the

following morning to interview him. The next morning, at

approximately 6:30 A.M., Gagnon and Detective Daniel McNeill of

the Cambridge police department interviewed the defendant.

At trial, the defendant did not dispute that he shot and

killed the victim. He did not testify but presented evidence to

show that, because of a mental impairment, he lacked the

capacity to commit murder in the first degree at the time of the

killing. In particular, the defendant introduced the testimony

of Dr. Robert Joss, a certified forensic psychologist, who

opined that at the time of the killing the defendant had an Axis

II personality disorder, not otherwise specified, with obsessive

compulsive, schizoid, and paranoid features. Joss characterized

the defendant as having a "substantial disorder of perception,

particularly the perception of the sort of social interactions

that grossly impaired his judgment." Therefore, whether the

defendant actually was threatened or intimidated by the victim

on the day of the killing was immaterial because the defendant

was "predisposed to perceive [the victim] as threatening."

Overall, Joss concluded that at the time of the killing, the

defendant had a diminished capacity to form the intent necessary

to premeditate deliberately or to act with extreme atrocity or

cruelty, as well as more generally the intent necessary for

malice.
 8

In rebuttal, the Commonwealth called Dr. Alison Fife, a

psychiatrist, who testified to her opinion that at the time of

the killing, the defendant was not suffering from any mental

illness, mental defect, or personality disorder, and had the

capacity to appreciate the wrongfulness of his acts.

2. Motion to suppress. Before trial, the defendant moved

to suppress statements he made after his arrest on January 28,

2009, on the ground that they were involuntary due to his

intoxication; he also argued that the statements made during his

interview with police on January 29 were obtained in violation

of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436

(1966), and his constitutional right against self-incrimination.3

After an evidentiary hearing, the motion judge, who was the

trial judge, denied the motion. The defendant argues that the

denial constituted error.

a. Standard of review. "In reviewing a ruling on a motion

to suppress, we accept the judge's subsidiary findings of fact

3
The defendant argued as well that his right to a prompt
arraignment under Commonwealth v. Rosario, 422 Mass. 48 (1996),
was violated because the police initially failed to advise him
of this right and later obtained a waiver by "trickery." The
motion judge rejected the argument, reasoning that there was no
Rosario violation because its safe harbor window did not begin
to run until the defendant became sober and, in any event, the
defendant executed a valid waiver of his Rosario rights. See
Rosario, supra at 56-57. The defendant does not challenge the
judge's ruling on appeal. We agree with the judge's analysis,
and do not consider the issue further.
 9

absent clear error 'but conduct an independent review of [her]

ultimate findings and conclusions of law.'" Commonwealth v.

Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v.

Jimenez, 438 Mass. 213, 218 (2002). We "make an independent

determination of the correctness of the judge's application of

constitutional principles to the facts as found." Id., quoting

Commonwealth v. Mercado, 422 Mass. 367, 369 (1996). Here, in

addition to testimony, the motion judge considered videotape

evidence of the defendant's Cambridge booking on January 28 and

of his interview with police on January 29. Thus, "to the

extent that the judge based [her] legal conclusions on facts

found by virtue of a video recording, 'we are in the same

position as the judge in viewing the videotape,'" and

independently review it without deference to the motion judge.4

Commonwealth v. Clarke, 461 Mass. 336, 341 (2012), quoting

Commonwealth v. Prater, 420 Mass. 569, 578 n.7 (1995).

b. January 28, 2009, statements. The defendant does not

dispute that the statements he made at the time of his arrest,

transport, and the Roxbury booking were spontaneous and not

4
However, to the extent that the motion judge relied on
testimony and videotape evidence to make credibility
determinations relevant to her subsidiary findings of fact, we
"adhere to the normal standard of review . . . [and] afford such
findings substantial deference, and accept them unless not
warranted by the evidence" (citations and quotations omitted).
Commonwealth v. Clarke, 461 Mass. 336, 341 (2012).
 10

obtained through police questioning, and that therefore Miranda

protections did not apply.5 See Commonwealth v. Diaz, 422 Mass.

269, 271 (1996). His sole argument is that, because he was

intoxicated, the Commonwealth did not meet its burden of proving

beyond a reasonable doubt that his statements were voluntary.

"The test for voluntariness is 'whether, in light of the

totality of the circumstances surrounding the making of the

statement, the will of the defendant was overborne to the extent

that the statement was not the result of a free and voluntary

act.'" Commonwealth v. Durand, 457 Mass. 574, 595-596 (2010),

quoting Commonwealth v. Souza, 428 Mass. 478, 483-484 (1998).

Relevant factors "include whether promises or other inducements

were made to the defendant by the police, as well as the

defendant's age, education, and intelligence; experience with

5
The defendant's unsolicited statements made on January 28,
2009, may be summarized as follows. At the Roxbury booking,
after learning from Sergeant Thomas J. Teahan that he would be
charged with murder, the defendant stated: "Oh, the individual
transpired, huh?"; he further told Teahan, "I am not a bad guy.
[The victim] is always fucking with me . . . [h]e's always
grabbing me and slapping me like I'm a woman." The defendant
also said that the victim told him to "[p]ull your knife. I'll
knock you the fuck out," and that the defendant said that he
"just went into a rage. I know I should have known better. He
died, huh? My life is pretty much over, don't you think?"
Thereafter, the defendant was transported to Cambridge, and he
made the following statements to Trooper Erik Gagnon during the
twenty-five minute drive: "I was fed up with the individual";
"My goose is cooked"; "If I thought this out better, I would
have gotten a passport and made a run for it"; and "I know I'm
going to jail, but can we drive around for a while and talk?"
 11

the criminal justice system; and his physical and mental

condition, including whether the defendant was under the

influence of drugs or alcohol." Durand, supra at 596. The mere

presence of one or more factors "is not always sufficient to

render the statements involuntary." Commonwealth v. Selby, 420

Mass. 656, 664 (1995). Further, although "special care must be

taken to assess the voluntariness of a defendant's statement

where there is evidence that he was under the influence of

alcohol or drugs, an 'otherwise voluntary act is not necessarily

rendered involuntary simply because an individual has been

drinking or using drugs.'" Commonwealth v. Brown, 462 Mass.

620, 627 (2012), quoting Commonwealth v. Silanskas, 433 Mass.

678, 685 (2001).

Considering these factors, the motion judge found the

defendant's statements to be voluntary. There was no error.

The defendant indisputably showed signs of intoxication.6

However, as the motion judge found (and as the videotape of the

Cambridge booking confirms), the defendant was not so

intoxicated that he was stumbling or falling down -- he followed

6
The officers who interacted with the defendant testified,
and the motion judge credited their testimony, that they
detected the odor of alcohol on the defendant and observed his
slurred speech, unsteady walking, and glassy, bloodshot eyes at
various points from his arrest at around 4 P.M. through his
arrival at the Cambridge police department after 5 P.M. A
review of the videotape of the Cambridge booking corroborates
the testimony.
 12

commands, answered questions, carried on conversations, and

stood, walked, and removed his clothing without assistance.

Further, during that booking, the defendant acknowledged that he

had received the Miranda rights earlier and asked questions

about his location, the charges against him, and what would

happen to him next; all of this signifies that he was lucid,

cognizant of his surroundings, and had some appreciation of the

gravity of his situation.7 We agree with the motion judge's

conclusion, "put in different terms by her, that 'although the

defendant may have been somewhat intoxicated when he spoke to

the police, his mind was rational and his faculties were under

control.'" Commonwealth v. Koney, 421 Mass. 295, 305 (1995),

quoting Commonwealth v. Simmons, 417 Mass. 60, 65 (1994).

7
See Commonwealth v. Brown, 462 Mass. 620, 627 (2012)
(although defendant's speech was "sluggish" from influence of
drugs, his statements were voluntary where "there [was] nothing
to suggest that he was acting irrationally or was out of
control, or that his denials were induced by psychological
coercion"); Commonwealth v. Simmons, 417 Mass. 60, 65-66 (1994)
(defendant's speech was slurred due to intoxication, but his
statements were voluntary when police could understand him, he
walked without difficulty, and appeared to understand
situation); Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 80-82
(2011) (although defendant was intoxicated, his statements were
voluntary because he was alert, coherent, understood and
answered questions asked of him, and spoke cogently). Contrast
Commonwealth v. Hosey, 368 Mass. 571, 578-579 (1975) (defendant
did not intelligently waive Miranda rights when his level of
intoxication rendered him "extremely high," "extremely
emotional," and "detached from reality").
 13

c. January 29, 2009, statements. The defendant further

argues that his motion to suppress was erroneously denied

because, when police interviewed him on January 29, 2009, the

officers obtained statements from him in violation of his rights

under the Fifth and Fourteenth Amendments of the United States

Constitution and art. 12 of the Massachusetts Declaration of

Rights.

(i) Initial Miranda warnings. Finding the defendant awake

and alert in his cell the morning after his arrest, Detective

McNeill and Trooper Gagnon asked him if he would agree to be

interviewed and, after obtaining consent, brought him to an

interview room. He was given coffee and a bagel, and his

handcuffs were removed. At the outset, McNeill, who conducted

the majority of the interview, read the defendant the Miranda

rights. After the defendant indicated that he understood those

rights, the following exchange occurred:

Detective McNeill: "Having these [Miranda] rights in mind,
do you wish to speak to us now?"

Defendant: "Yeah, but -- yes, I'll speak to you but
there's certain things that might be kind of like sensitive --"

McNeill: "Okay."

Defendant: "-- that may jeopardize me because my rights
has been read and --"

McNeill: "I understand that."

Defendant: "And then say hey look [inaudible] the rest of
[inaudible]."
 14

McNeill: "Again, I'm going to ask you to initial right
here. Right here where it says -- right here under your
previous initials and sign right here on the line. Just sign
your name right there."

The defendant then signed the Miranda waiver form and permitted

the interview to be recorded.

The officers began by asking the defendant about his

upbringing, family, education, and employment. After about

fifteen minutes, McNeill stopped the interview and read the

defendant a form explaining his right to prompt arraignment

under Commonwealth v. Rosario, 422 Mass. 48, 56 (1996). The

defendant signed a Rosario waiver form and agreed to continue

speaking with the officers but also stated that he "would kind

of deviate from the more sensitive matters."

On appeal, the defendant claims that his waivers of the

right to remain silent in response to the administration of

Miranda rights were conditional rather than unequivocal, and as

a result, the officers were obligated to seek further

clarification from him before proceeding with the interview. At

least with respect to the defendant's initial Miranda waiver, we

disagree.8 The motion judge found that the defendant's words,

"Yes, I'll speak with you," and his signature of the Miranda

8
The defendant's second Miranda waiver occurred after he
invoked his right to remain silent; we consider that invocation
in the following section of this opinion.
 15

waiver signified an unequivocal, knowing, voluntary, and

intelligent waiver of his right to silence.9 There was no error.

The statement by the defendant that he may want to "deviate"

from more "sensitive" matters merely indicated that he

understood that he could invoke the right to remain silent, and

might choose to do so, in the future. See Commonwealth v.

Bradshaw, 385 Mass. 244, 265 (1982) ("defendant has not only the

right to remain silent from the beginning but also a continuing

right to cut off, at any time, any questioning that does take

place"). Accordingly, the officers were not obligated to seek

clarification, at the time of the defendant's waiver. See

Clarke, 461 Mass. at 351-352.

(ii) Postwaiver statements. After waiving his Miranda

rights, the defendant spoke openly with the officers for

approximately forty-five minutes, answering all questions asked

of him. As questioning progressed, the conversation became

increasingly focused on the defendant's prior relationship with

the victim and the moments leading up to the shooting. After

9
This conclusion has a strong evidentiary basis in the
record: the defendant was alert and showed no signs of
intoxication during the interview, see Commonwealth v. Shipps,
399 Mass. 820, 826 (1987); he had received and acknowledged
understanding his Miranda rights on four separate instances the
prior day, see Commonwealth v. Williams, 456 Mass. 857, 864
(2010); and there is no evidence that the officers engaged in
trickery, coercion, or intimidation to obtain this waiver. See
Commonwealth v. Cruz, 373 Mass. 676, 688-689 (1977).
 16

describing how the victim had approached him holding a hammer on

the morning of the shooting, the defendant stated:

Defendant: "Then I went to [buy] the breakfast and stuff
and then I came back. But I would like to stop at that point
because it [be]comes more intricate now and who knows what's
going to happen" (emphasis added).

McNeill: "Okay. But, you know, I just want to say it's
happened."

Defendant: "Yeah."

McNeill: "There are witnesses and the employees."

Defendant: "Yeah. I think --"

McNeill: "You know people -- Mike, Derek, Jimmy."

Defendant: "Yeah, Mike, yeah."

McNeill: "I just want to --"

Defendant: "But I don't know if Jimmy saw anything."

McNeill: "Well, they did, right. But what did [the
victim] say -- what just -- you just had enough of his tactic
[inaudible] of bullying you?"

Defendant: "Yeah. A lot of intimidation, yeah."

The defendant contends that once he stated, "I would like

to stop at that point," he invoked unequivocally his right to

remain silent, and that, rather than honoring his request,

McNeill began pressuring him by emphasizing that "it happened"

and pointing out that there were witnesses to try to get him to

talk about the incident. The motion judge acknowledged the

defendant's statement that he "would like to stop," but
 17

determined that at no point during the interview did the

defendant "cho[o]se to cut off questioning."

A defendant who has waived his right to silence may

subsequently invoke that right at any point during questioning.

Bradshaw, 385 Mass. at 265. However, in the postwaiver context,

a subsequent invocation of the right to remain silent must be

clear and "unambiguous[]," see Clarke, 461 Mass. at 342, quoting

Berghuis v. Thompkins, 560 U.S. 370, 381 (2010), such that "'a

reasonable police officer in the circumstances would understand

the statement' to be an invocation of the Miranda right." Id.,

quoting Davis v. United States, 512 U.S. 452, 459 (1994). See

Commonwealth v. Robidoux, 450 Mass. 144, 161 (2007), quoting

Commonwealth v. James, 427 Mass. 312, 314 (1988) (postwaiver

invocation of right to silence requires that defendant show

"expressed unwillingness to continue"). Whether the defendant

has met this burden is a fact-specific determination to be made

based on the totality of the circumstances. Commonwealth v.

Almonte, 444 Mass. 511, 519, cert. denied, 546 U.S. 1040 (2005),

overruled on another ground by Commonwealth v. Carlino, 449

Mass. 71 (2007).

The Commonwealth argues that the defendant's statement

about wanting to stop "reflect[s] nothing more than the

defendant's desire to deviate from questioning touching on the

shooting itself." It is the case that "a suspect's
 18

unwillingness to answer questions on a particular topic does not

unambiguously indicate that the suspect is unwilling to continue

speaking with police or obligate them to inquire whether the

suspect would 'like to reassert his right to silence.'"

Commonwealth v. Santos, 463 Mass. 273, 285 (2012), quoting

Robidoux, 450 Mass. at 161 n.7.10 Cf. Commonwealth v. Sicari,

434 Mass. 732, 748-749 (2001), cert. denied, 534 U.S. 1142

(2002) (prolonged silence in response to police questions);

Commonwealth v. Senior, 433 Mass. 453, 463 (2001) (silence).

However, considering the totality of the circumstances here, we

disagree with the Commonwealth that the defendant's statement is

to be read so narrowly. There is nothing in the language of the

defendant's entire statement, "I would like to stop at that

point, because it [be]comes more intricate now and who knows

what's going to happen," that qualifies or limits it to a

particular question.

A defendant's request to halt the questioning at a later

point of an interview, or failure to answer one specific

question, "must be interpreted in the context of his willingness

to talk both immediately prior to and subsequent to" that point.

10
In Commonwealth v. Robidoux, 450 Mass. 144, 160 (2007),
we concluded that there was no postwaiver invocation by the
defendant of his right to silence when he "simply declined to
talk about certain subjects" by stating, "I will not talk about
my family," or stared at the interrogating officers.
 19

Senior, 433 Mass. at 463, quoting Commonwealth v. Pennellatore,

392 Mass. 382, 387 (1984). Here, although initially the

defendant had indicated twice that he might want to avoid

"sensitive" matters, in the period immediately prior to his

statement about stopping, he had engaged in conversation with

the officers and willingly answered every one of their questions

without any qualification at all for approximately forty-five

minutes; there was no indication that the defendant was

"pick[ing] and choos[ing]" among which questions to answer.11

See id. In this context, his statement, "I would like to stop

at that point," indicated that he had reached the "sensitive"

areas that he did not want to talk about, and, accordingly, no

longer wanted to proceed with the interview, but as he said,

wanted "to stop." In the circumstances, we conclude that in

stating, "I [want] to stop at that point," the defendant invoked

his right to silence.12

11
As to the period immediately following the statement, the
Commonwealth's claim that it casts doubt on the defendant's
invocation because he resumed answering some questions after
refusing to answer others mischaracterizes what happened. The
defendant did not immediately resume speaking or even answering
questions after indicating that he would like to "stop."
Rather, in response to the next substantive question asked of
him, he stated, "I don't want to answer that question." This
was the first time in the interview that the defendant stated
that he did not want to answer a question posed by the officers.
12
"Each case turns, as it must, on the specific facts."
Commonwealth v. Sicari, 434 Mass. 732, 748 (2001), cert. denied,
534 U.S. 1142 (2002). However, it is instructive to consider
 20

We appreciate that an appellate court reviewing a police

interview after the fact -- generally aided by a written

transcript and, often, a videotape of the interview, both of

which can be reviewed more than once -- is in a different

position than the police officers who are conducting that

interview and acting in the moment.13 Here, the testimony at the

motion to suppress hearing reflected that at least one of the

interrogating officers, Gagnon, and perhaps also the officers'

supervisors who were observing the interview through a two-way

mirror, had some question about whether the defendant's

statement about wishing to "stop at that point" meant he was

other cases, and the defendant's words about wanting to stop are
more in line with the facts of cases in which an invocation was
found than with those concluding the opposite. Compare, e.g.,
Commonwealth v. Santana, 465 Mass. 270, 282 (2013) (postwaiver
statement that defendant could not "say any more" was clear
invocation, precluding any further interview of defendant for
remainder of evening, although not permanently); and
Commonwealth v. Santos, 463 Mass. 273, 285 (2012) (postwaiver
statement that "I'm not going on with this conversation" was
clear invocation), with Commonwealth v. Leahy, 445 Mass. 481,
488-489 (2005) (postwaiver statement -- "Not right now, in a
minute. I need to figure some things out" -- in response to
question whether defendant wanted to talk, was not clear
invocation).
13
Nonetheless, we take the word "stop" to mean what it
says. A suspect's or defendant's use of the word "stop," or the
phrase, "I would like to stop at that point," in this context
should raise a red flag for an interrogating police officer -- a
signal that it is necessary at the very least for the officer
immediately to pause in order to reflect on what the defendant
has just said, and to consider whether the defendant is seeking
to invoke his right to remain silent. As discussed in the text,
that is not what happened here.
 21

terminating the interview altogether or only expressing a wish

not to talk specifically about the actual shooting incident.14

See Santos, 463 Mass. at 286. Assuming this to be the case, the

uncertainty would have permitted the officers to ask a direct

question designed to clarify the defendant's intent. See id.

("The question . . . should be brief, worded only to elicit an

affirmative or negative response concerning whether the suspect

wants [to stop] and should not be designed to keep the suspect

talking"). The officers here did not follow such a course,

however. Rather, when the defendant stated he "would like to

stop at that point," McNeill, who was questioning the defendant

at the time, immediately pressed on with arguments for why the

defendant should keep speaking about the shooting incident. It

was only a bit later, following a series of questions by McNeill

about the gun the defendant had used, that Gagnon abruptly

announced a "two minute" break that actually lasted fifty-one

minutes. During the break the defendant was brought to the

restroom, but otherwise kept in the interview room alone,

14
Gagnon testified at the hearing on the motion to suppress
that the fifty-one minute break taken in the interview at his
behest was taken in part because Gagnon did not "fully
understand" what the defendant meant when the defendant said he
wanted to stop (i.e., he did not understand whether the
defendant meant to invoke his rights to remain silent and to
counsel), and Gagnon wanted to "clarify" that point -- and to
"regroup, to talk to our supervisors" who were watching the
interview through a two-way mirror.
 22

although he was given reading glasses and a drink. At some

point before the break ended, Gagnon apparently returned to the

room and asked the defendant in substance about whether he

wanted to continue. According to Gagnon, this conversation,

which was not audio recorded, lasted about three minutes, but

there is no indication that Gagnon specifically sought

clarification about the meaning of the defendant's earlier

statement about wishing to stop, or that he referenced that

earlier statement at all.15

In these circumstances -- where McNeill did not seek to

clarify but sought to keep the defendant talking, where a break

occurred before any effort at all was made to inquire about the

defendant's wishes about speaking to the police, and where no

reference ever was made to the defendant's statement about

15
At the motion to suppress hearing, Gagnon testified to
his memory of the substance of his conversation with the
defendant about wanting to continue. After this unrecorded
conversation, the audio-recorded interview resumed with both
officers present, and the following exchange occurred:

McNeill: "Since the time we took a break, there's probably
been about a half hour break or so. You told us you don't have
a problem talking to us."

Defendant: "No."

McNeill: "Is that correct?"

Defendant: "Yes."

The defendant was then given a fresh set of Miranda
warnings and signed a waiver form.
 23

wanting to stop -- we conclude that the officers "exceeded the

narrow scope that was permitted [to clarify], and intruded into

the defendant's invocation of his right" to remain silent. See

Santos, 463 Mass. at 287.

When a person in custody has exercised his right to cut off

police questioning, this does not "create a per se proscription

of indefinite duration upon any further questioning by any

police officer on any subject[.]" Michigan v. Mosley, 423 U.S.

96, 102-103 (1975). Rather, once such a person invokes this

right, we must inquire "whether the person's right to be free

from interrogation, once exercised, was 'scrupulously honored'

before questioning resumed." Commonwealth v. Atkins, 386 Mass.

593, 598 (1982), quoting Mosley, supra at 104. To do so, we

consider factors such as whether "the police (1) had immediately

ceased questioning; (2) resumed questioning 'only after the

passage of a significant period of time and the provision of a

fresh set of warnings'; and (3) limited the scope of the later

interrogation 'to a crime that had not been a subject of the

earlier interrogation'" (Mosley factors). Clarke, 461 Mass. at

344, quoting Mosley, supra at 106.

In this case, the first and third Mosley factors

unmistakably favor the defendant. As to the first, when the

defendant invoked his right to silence, the officers did not

immediately cease questioning. Id. Instead, in an obvious
 24

effort to "overcome the defendant's resistance to

interrogation," Commonwealth v. Brant, 380 Mass. 876, 884-885,

cert. denied, 449 U.S. 1004 (1980), McNeill immediately reminded

the defendant that the crime already had happened and that there

were numerous witnesses, and persisted in questioning the

defendant about the gun he had used. Although Gagnon called for

a break shortly thereafter, by that point, McNeill had already

pressured the defendant to talk and had obtained additional

substantive statements from him.16 With respect to the third

16
The pressure on the defendant to answer questions about
the shooting incident continued in force after the break. At
that time, the defendant was given a fresh set of Miranda
warnings and signed a waiver. Shortly thereafter, McNeill
broached the topic of the shooting itself, stating, "[W]hat's
happened happened. We just need your side of the story on how
and why so we can put closure to this ordeal." The defendant
then made a series of general inculpatory statements about the
circumstances, and his feelings, in the moments leading up to
the shooting. Thereafter, the officers' questions focused on
the shooting incident. When asked how he and the victim had
ended up in the chemical yard together the defendant stated:
"Can I let this one go by, this question" and McNeill responded,
"Absolutely." The defendant then indicated that he was willing
to talk from the point when he left the scene of the shooting,
and the officers respected that request for about six minutes
before McNeill resumed questioning the defendant about the
shooting itself. The defendant then stated -- at least four
times -- that he did not want to answer or that he wanted to
leave parts out, but McNeill persisted, telling the defendant
that his answers would allow McNeill "closure and just to put an
end to it" and to "learn from it and understand it." After this
exchange, the defendant again said that he would talk only about
the period after the shooting. The officers respected this
directive for about four minutes before McNeill once more urged
the defendant to describe the incident from his perspective. At
that point, the defendant spoke openly about the shooting,
describing what had occurred in the chemical yard, how the
 25

Mosley factor, the officers plainly did not limit the scope of

the later interrogation "to a crime that had not been a subject

of the earlier interrogation." Clarke, 461 Mass. at 344,

quoting Mosley, 423 U.S. at 106. Here, there was no separate

crime ever at issue.17 Compare Mosley, supra at 105 (no

violation when second interrogation focused on "a crime

different in nature and in time and place of occurrence" from

subject of first interrogation), with Commonwealth v. Taylor,

374 Mass. 426, 435 (1978) (when subsequent "questioning of the

defendant was not restricted to an unrelated crime, the police

had departed from the procedure approved in Mosley, and . . .

the judge was warranted in finding the defendant's Miranda

rights to have been violated").

Assessment of the second Mosley factor is less clear. The

second factor looks at the passage of time between the

individual's invocation of the right to remain silent and the

resumption of police questioning. There is no bright line that

victim's "survival instincts kicked in," how the victim was
trapped because the gate was locked, the number of shots fired,
and how the defendant had fled the scene. The defendant also
stated that, ever since an incident with the victim involving a
forklift several months earlier, discussed infra, he brought his
gun to work "every day" without anyone else knowing.
17
Although the defendant ultimately was convicted of
various firearms offenses in addition to murder in the first
degree, those charges all stemmed from the same shooting; there
is no evidence that the officers ever were investigating the
defendant's involvement in a separate criminal episode.
 26

divides what would be a permissible break from one that is too

short to be acceptable.18 Nonetheless, because there was no

meaningful change in circumstances before and after the fifty-

one minute break between the defendant's invocation and the

officers' return to questioning -- the defendant remained in

police custody, was returned to the same room, and did not

reinitiate questioning on his own, and when questioning resumed

the same officers continued with the interview on the same

subject -- the fifty-one minutes likely did not constitute a

"significant period of time" sufficient to honor the defendant's

invocation of his right to silence, even with the administration

of a fresh set of Miranda warnings. See Commonwealth v.

Callender, 81 Mass. App. Ct. 153, 158 n.5 (2012) (thirty-five-

minute break between interrogations insufficient, particularly

in light of officers' violation of other Mosely factors).

18
Compare, e.g., Commonwealth v. Brant, 380 Mass. 876, 882-
883, cert. denied, 449 U.S. 1004 (1980) (fourteen minutes
between interrogations impermissible), with Commonwealth v.
Woodbine, 461 Mass. 720, 729-730 (2012) (no violation seventeen
hours after invocation); Commonwealth v. Rivera, 424 Mass. 266,
269 (1997) (no violation three and one-half hours after
invocation, fresh Miranda warnings given, and defendant never
questioned by booking officer in first interview); Commonwealth
v. Santo, 375 Mass. 299, 304 (1978) (no violation where
invocation was previous day, fresh Miranda warnings given, and
second interview was in different city); Commonwealth v.
Avellar, 70 Mass. App. Ct. 608, 616 (2007) (no violation two
hours after invocation and fresh Miranda warnings given).
 27

In sum, considering the totality of the circumstances, the

officers did not "scrupulously honor" the defendant's invocation

of his right to silence. The question is whether that error was

harmless beyond a reasonable doubt. See Chapman v. California,

386 U.S. 18, 24 (1967); Commonwealth v. Santos, 463 Mass. at

287. To make this determination, we consider factors such as

"the importance of the evidence in the prosecution's case;
the relationship between the evidence and the premise of
the defense; who introduced the issue at trial; the
frequency of the reference; whether the erroneously
admitted evidence was merely cumulative of properly
admitted evidence; the availability or effect of curative
instructions; and the weight or quantum of evidence of
guilt."

Commonwealth v. Tyree, 455 Mass. 676, 701 (2010), quoting

Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006).

The Commonwealth contends that any error in this case was

harmless beyond a reasonable doubt because the erroneously

admitted statements were largely cumulative of other evidence,

and the evidence of the defendant's guilt was overwhelming. The

defendant disagrees, arguing that the prejudicial impact of his

image and words on the video was too strong to be considered

harmless. The Commonwealth's points are not without merit:

there is overlap between a good number of the defendant's

statements after he invoked his right to end the interview and

properly admitted evidence of statements he had volunteered to

police the day before the interview, and the evidence of the
 28

defendant's guilt was indeed extremely strong. But for reasons

we explain infra, we conclude that the erroneous admission of

the defendant's postinvocation statement, when considered in

combination with (1) the prosecutor's use in his closing

argument of that statement and other improper aspects of the

closing, and (2) errors in the judge's final instruction on

mental impairment, was not harmless and reversal of the

defendant's murder conviction is required. Because the issue

bears on our consideration of the closing argument and may arise

at a new trial, we first consider the defendant's claims of

error relating to the admission of prior bad act evidence.

3. Prior bad acts. The defendant argues that the

prosecution improperly introduced prior bad act and character

evidence for which the unfair prejudice substantially outweighed

its probative value. The Commonwealth counters that the

evidence complained of was properly admitted because it

"established a pattern of workplace violence and hostility

towards co-workers," and therefore was relevant and admissible

to show the defendant's capacity to form the intent required for

conviction; and that because the defendant touched on these same

topics in his interview with the police, he "opened the door" to

most of the prior bad act evidence admitted at trial.

The general rule governing prior bad act evidence is well

settled:
 29

"The prosecution may not introduce evidence that a
defendant previously has misbehaved, indictably or not, for
the purpose of showing his bad character or propensity to
commit the crime charged, but such evidence may be
admissible if relevant for some other purpose. . . . Such
evidence can be highly prejudicial to the defendant, and
therefore must be excluded unless it comes within one of
the permitted uses, such as to show a common scheme,
pattern of operation, absence of accident or mistake,
identity, intent, or motive [or state of mind]."
(Citations omitted.)

Commonwealth v. Helfant, 398 Mass. 214, 224–225 (1986). Accord

Commonwealth v. Sharpe, 454 Mass. 135, 143 (2009).

Additionally, to be admissible, a defendant's prior bad acts may

not be too remote in time. (Citation omitted.) Commonwealth v.

Butler, 445 Mass. 568, 574 (2005). Here, the prior bad act and

character evidence the defendant complains of includes: (1) a

previous incident between the defendant and the victim over a

forklift; (2) a previous incident between the defendant and

another Baystate employee, Miguel Carballido, over a forklift;

and (3) derogatory comments about Haitian women that the

defendant allegedly made in the victim's presence. We consider

each separately.

(i) Prior forklift incident with victim. The Commonwealth

presented evidence of a confrontation between the defendant and

the victim over the use of a forklift at work that occurred in

November, 2008, approximately three months before the victim was

killed. The evidence came in through the testimony of other

Baystate employees as well as from the portion of the
 30

defendant's statement to police that was properly admitted at

trial.19 There was no error in the admission of this evidence.

It tended to show the antagonistic character of the defendant's

and the victim's relationship, was not too remote in time, and

was probative of the defendant's motive, state of mind, and

intent. See, e.g., Commonwealth v. Rosenthal, 432 Mass. 124,

126-128 (2000) (evidence of violent relationship between

defendant and victim, including two black eyes sustained by

victim, admissible to demonstrate motive, intent, and rebut

defendant's claim of lack of criminal responsibility);

Commonwealth v. Ashman, 430 Mass. 736, 741-742 (2000) (evidence

of altercation between defendant and victim in month preceding

murder properly admitted to show defendant's state of mind,

intent, and relationship with victim). See generally

Commonwealth v. Morgan, 460 Mass. 277, 289 (2011), quoting

Robidoux, 450 Mass. at 158 ("Determinations of the relevance,

probative value, and prejudice of such evidence are left to the

sound discretion of the judge, whose decision to admit such

evidence will be upheld absent clear error").

19
Specifically, in his interview with police, the defendant
described this series of events: when the defendant used the
forklift, the victim, who claimed to be using it, approached the
defendant, grabbed him, "jacked him up," and said, "I'll F --
you up" while threatening to "knock [the defendant] out." After
this occurred, the defendant "got into a stinking rage" and
backed his own vehicle into the victim's car.
 31

(ii) Prior forklift incident between defendant and

Carballido. The prosecutor elicited testimony from Baystate

employee Miguel Carballido, who was Mexican, that for at least

three years, the defendant, who was from Trinidad, would "always

bother" him at work in various ways, including calling

Carballido a racist and making comments about Mexicans.

Carballido testified that in June, 2008, approximately six

months before the killing, the defendant took a forklift that

Carballido was using. On realizing that the defendant had done

so, Carballido physically pulled the defendant from the

forklift, and the defendant "pulled a knife" on Carballido. In

response, Carballido picked up a stick and challenged the

defendant; the defendant walked away, and the confrontation

ended. The day after this incident, the defendant threatened to

shoot and kill Carballido.

Throughout the defendant's statement to police, including

the properly admitted portion, he portrayed himself as the

victim of harassment and intimidation by both Carballido and the

victim, and implied that they acted together to antagonize him.

Admission of the forklift incident with Carballido served to

rebut the defendant's assertions about the source of his hostile

relationships with both men, thereby providing the jury with a

complete picture of those relationships. See Commonwealth v.

McCowen, 458 Mass. 461, 479 (2010) (defendant's cross-
 32

examination of police officer "opened the door" for prior bad

act evidence on redirect to rebut implications raised by defense

counsel); Commonwealth v. Maimoni, 41 Mass. App. Ct. 321, 327-

328 (1996) (prior bad acts admissible, in part, to rebut

defendant's testimony). See also Commonwealth v. Young, 382

Mass. 448, 463 (1981) (prior bad act evidence admissible to show

full picture of entire relationship between defendant and

victim). Further, although it presents a close question,

evidence of the defendant's state of mind toward another

Baystate employee was arguably probative of his state of mind

and intent toward the victim. Cf. Commonwealth v. Riley, 467

Mass. 799, 818 (2014) (defendant's abuse toward other children

probative of his state of mind toward child who was victim of

murder). As such, the trial judge did not abuse her discretion

in admitting the Carballido evidence.

(iii) Defendant's comments about Haitian women. Baystate

employee Shane Nixon testified that, in the summer of 2008, he

and the victim were having a conversation about the women they

were dating, both of whom were Haitian or of Haitian descent.

The defendant interjected, "You'd pretty much be a fool to date

a Haitian woman." Nixon also related that after that initial

comment, the defendant purposely made additional negative

remarks about Haitian women in the victim's presence and that

these comments upset the victim. The comments illustrated a
 33

facet of the defendant's relationship with the victim -- a

proper nonpropensity purpose -- and we cannot say that the trial

judge abused her discretion in admitting evidence of them.20 See

Commonwealth v. Mendes, 441 Mass. 459, 464-465 (2004) (verbal

fights between defendant and victim admissible to demonstrate

defendant's hostile relationship with victim). See also

Commonwealth v. Thomas, 448 Mass. 180, 188 (2007); Commonwealth

v. Robertson, 408 Mass. 747, 750-751 (1990).

4. Prosecutor's closing argument. The defendant complains

that the prosecutor's closing argument prejudiced his trial and

warrants reversing his convictions. He specifically argues that

the prosecutor: (1) impermissibly commented on the defendant's

invocation of his right to silence; (2) misused -- for character

and propensity purposes -- the prior bad act evidence that had

been admitted solely on the issues of motive, intent, and

relationship between defendant and victim; and (3) affirmatively

misrepresented certain evidence. We agree that the closing was

improper.21

20
In connection with each instance of prior bad act
evidence, the trial judge gave a thorough instruction to the
jury about the limited purpose for which they could consider the
evidence, and she repeated this limiting instruction in her
final jury charge.
21
The defendant did not object to the prosecutor's closing
and therefore, the closing argument is subject to review under
the substantial likelihood of a miscarriage of justice standard.
Commonwealth v. Jenkins, 458 Mass. 791, 796 (2011). To the
 34

We summarize the critical portions of the prosecutor's

closing. Near the beginning of his argument, the prosecutor

told the jury that "this case started back in November of 2008"

with the "forklift incident":

"[A]fter [the forklift incident,] . . . the gun's
coming to work. . . . My gun, a loaded gun, it's coming
with me because at some point sometime I'm going to use it.
And this day, January 28th, was the time. Premeditation
can be a matter of seconds, and the Court will tell you, or
it can be longer. In this case you have both. He was
thinking about taking out [the victim] since early
November."

. . .

"[D]on't ever get in his face. Don't ever confront
him like Miguel [Carballido] did[,] or he'll pull a knife
on you."

The prosecutor then reprised the forklift incidents with the

victim and Carballido as well as the defendant's comments to the

two men as follows:

"He jumps on the forklift. He does it just to
irritate people when they're using it. That's why he
talked to [the victim] about, you shouldn't go out with
Haitian women. That's why he called Miguel a Mexican.
It's the world of Clyde Howard."

"Knife to Miguel; violent, rams the car in a stinking
rage."

Shortly thereafter, the prosecutor discussed the defendant's

January 29, 2009, statement to the police, saying,

extent that the defendant did not raise all of the errors
contained in the prosecutor's closing argument, we consider them
in the following discussion as part of our review pursuant to
G. L. c. 278, § 33E.
 35

"Defense counsel says, oh, he really can't remember
the details. Kind of having a bad day. It's a . . .
little fuzzy. What did he tell the police? I'll talk to
you guys, but there are certain things I'm not going to
talk about because they might incriminate me. And the
police say[], okay, whatever. Those are your rights. And
he never wanted to go there. He didn't want to talk about
the gun. He didn't want to talk about where it was. He
didn't want to talk about the shooting because it might
incriminate him. No kidding, Clyde. He's a violent man."

Toward the end of the closing, the prosecutor turned to

testimony from the defense expert Joss, using it to undercut the

defendant's theory of diminished capacity. The prosecutor

stated:

"Defense counsel says there's only one Clyde Howard.
That's not what Dr. Joss said. He agreed with me; there
are two sides to him. He wants to please his superiors,
Roczynski, Najarian, McGaffigan. He looks down to people
he feels are inferior to Clyde Howard and makes derogatory
comments towards them and is arrogant towards them. That's
what that fancy little test showed.[22]

"Do you know what else it showed? He has a history of
intimidating his wife and his children -- intimidating.
That's the other side of Clyde Howard. He's a mean man,
he's an intimidating man, he's a violent man who took a
life with no justification, no reason."

"He deserves no sympathy. He didn't snap. You don't
snap when you bring a gun to work [f]or over two months
loaded."

These excerpts from the closing reflect essentially two

categories of impropriety: (1) use of portions of the

22
The "fancy little test" is a reference to the
psychological testing performed by Joss as part of his
examination of the defendant.
 36

defendant's statements that were obtained in violation of his

Miranda rights; and (2) propensity-based argument.

a. Miranda rights. The prosecutor referred to the

defendant bringing a loaded gun to work for several months at

the beginning and the end of the closing, and also referenced

the defendant’s unwillingness to discuss with the police either

the shooting itself or the gun he used in the shooting. Each of

these references was to the portion of the defendant's statement

that followed his invocation of the Miranda-protected right to

cut off questioning and remain silent -- the portion that should

not have been admitted in evidence.

By including the two references to the defendant's decision

to bring a loaded gun to work for months preceding the shooting,

the prosecutor directly connected it to the defendant's capacity

to form the necessary intent for deliberately premeditated

murder. Moreover, by making these references at the beginning

and close to the end of the argument the prosecutor created

bookends that served to highlight the premeditation theme.23 See

23
It bears emphasis that although, as the Commonwealth
contends, there was substantial, properly admitted evidence --
including the volunteered statements of the defendant to the
police the day before his custodial interview -- that the
defendant possessed a gun on the day of the killing, apart from
the defendant's erroneously admitted statement, no evidence was
before the jury that the defendant had been bringing the gun,
loaded, to work every day for two or three months before the
killing. See note 16, supra.
 37

Tyree, 455 Mass. at 702-704 (prosecutor's use of

unconstitutionally admitted evidence as organizing theme of

closing rendered error harmful).

As for the comments about the defendant's desire not to

answer questions about the gun or the actual shooting incident,

by arguing, "He didn't want to talk about the shooting because

it might incriminate him," the prosecutor in effect connected

the defendant's invocation of his right to remain silent to the

issue of his substantive guilt. Using the invocation of Miranda

rights to comment on a defendant's substantive guilt is strictly

prohibited. See Doyle v. Ohio, 426 U.S. 610, 619 (1976);

Commonwealth v. Mahdi, 388 Mass. 679, 694 (1983), citing United

States v. Hale, 422 U.S. 171, 175, 181 (1975). In addition,

this section of the prosecutor's argument sought to emphasize

the rational thought process of the defendant during the

interview to undercut defense's theory that he suffered from

diminished capacity at the time of the crime. Cf. Wainwright v.

Greenfield, 474 U.S. 284, 295 (1986) (defendant's post-Miranda

silence inadmissible to prove criminal responsibility); Madhi,

supra at 694-695 (same).

b. Prior bad acts and propensity. As discussed, the trial

judge did not abuse her discretion in admitting evidence of

certain prior bad acts committed by the defendant. But, as the

judge explained to the jury both when the evidence was admitted
 38

and in her final charge, this evidence was only to be used for

the limited purpose of evaluating the defendant's motive,

intent, state of mind, or, in some instances, the nature of the

relationship between the defendant and the victim -- not for

assessing the defendant's character. See Part 3, supra. In his

closing, the prosecutor repeatedly and quite blatantly ignored

the judge's evidentiary limitation; the argument is laced with

remarks describing the defendant as a "mean" and "violent man"

likely to commit violent acts -- i.e., using the bad acts

directly as propensity evidence and negative character evidence.

This use is forbidden and prejudicial. See Helfant, 398 Mass.

at 224-225. See also Commonwealth v. Anestal, 463 Mass. 655,

672 (2012) ("It is implicit in the general rule regarding the

inadmissibility of prior bad acts evidence that admission of

such evidence carries with it a high risk of prejudice to the

defendant" [citation omitted]).

The prosecutor's attempt to paint the defendant in a

negative light reached its nadir with the reference to the

defendant's intimidation of his family -- a reference that also

misrepresented the evidence at trial. The prosecutor asserted

that the psychological testing performed by Joss showed the

defendant had a history of intimidating his wife and children.

Although Joss had stated at trial, in response to the

prosecutor's question on cross-examination, that the defendant
 39

had had, in the past, a history of being intimidating, there was

no suggestion by Joss that this "history" of intimidation was

revealed by a psychological test of the defendant.24 More to the

point, the prosecutor transformed Joss's reference to a past

"history" into a current character trait of the defendant,

summarizing: "Intimidating. That's the other side of Clyde

Howard. He's a mean man, he's an intimidating man, he's a

violent man who took a life with no justification, no reason."

In sum, the prosecutor's extensive use of propensity-based

argument in his closing was improper. It remains to evaluate

the impact of these improprieties and the prosecutor's erroneous

use of portions of the defendant's statement in the argument.

We do so in conducting our review of the entire case under G. L.

c. 278, § 33E. See Part 6, infra.

5. Jury instructions. The defendant claims error in the

judge's final charge on mental impairment, the voluntariness of

the defendant's statement, and the inference of malice the jury

were permitted to draw from the intentional use of a dangerous

weapon.25

24
That the defendant had a (past) history of "intimidating"
his wife and children came from Joss's report; the specific
quotation from the report that the prosecutor elicited during
cross-examination was that, "[the defendant] did have a history
from years back of being intimidating to his wife and children."
25
The defendant's claim relating to the permissible
inference of malice from intentional use of a dangerous weapon
 40

a. Mental impairment. The judge instructed the jury on

mental impairment following her full instructions on the

elements of murder in the first degree committed with deliberate

premeditation and committed with extreme atrocity or cruelty.

The instruction is reproduced below.26

appears to be that the judge's repetition of this instruction
immediately following each separate definition or explanation of
a prong of malice, without any concomitant explanation that the
mental impairment claimed by the defendant also could be
considered in relation to each of the prongs, constituted error
in the circumstances of this case. See Commonwealth v. Miller,
457 Mass. 69, 72-76 (2010). Given our conclusion that the
judge's instruction on mental impairment, in itself, was
erroneous, we need not decide this point.
26
The judge stated:

"Now, when considering and determining whether the
Commonwealth has proven beyond a reasonable doubt the
elements in first degree murder by deliberate premeditation
and/or first degree murder by extreme atrocity or cruelty,
you may consider the following. In determining whether the
Commonwealth has proven beyond a reasonable doubt the
defendant's intent to commit first degree murder by
deliberate premeditation or by extreme atrocity or cruelty,
you should consider all the credible evidence relevant to
the defendant's intent, including any credible evidence of
the defendant's mental impairment on the defendant.

"In determining whether the Commonwealth has proven
beyond a reasonable doubt the defendant's knowledge at the
particular time, you should consider all the credible
evidence relevant to the defendant's knowledge, including
any credible evidence of the defendant's mental impairment
on the defendant."

The judge repeated essentially the same mental impairment
instruction at the end of her instruction on murder in the
second degree.
 41

The instruction in itself is confusing, given its

suggestion that the Commonwealth was required to prove "intent

to commit first degree murder by deliberate premeditation or by

extreme atrocity or cruelty." The Commonwealth does not have

such a burden. Rather, the Commonwealth's obligation is to

prove "malice" -- a term that certainly focuses on intent, but

each of its prongs has a meaning distinct from "intent to commit

murder by deliberate premeditation" or "by extreme atrocity or

cruelty." But of greater significance, and similar to

Commonwealth v. Gonzalez, ante 410, 421-422 (2014), insofar as

the judge's explanation of mental impairment focused solely on

intent (and associated knowledge), the instruction never

explained that the jury might consider the defendant's mental

impairment in weighing whether the defendant more generally

committed the crime with extreme atrocity or cruelty, an

instruction that was required in substance.27 See id.;

Commonwealth v. Rutkowski, 459 Mass. 794, 798 (2011);

Commonwealth v. Gould, 380 Mass. 672, 685-686 & n.16 (1980).

See also Model Jury Instructions on Homicide 62 (1999); id. at

27
The judge similarly failed to explain to the jury that
they could consider the defendant's mental impairment in
determining whether the Commonwealth had proved the defendant:
(1) acted with malice -- any one of the three prongs; and (2)
deliberately premeditated the victim's killing -- i.e., whether
he thought before acting, and whether his decision to kill was
based on reflection for some period of time. See Model Jury
Instructions on Homicide 62 (1999; id. at 40-41, 46 (rev. 2013).
These omissions, too, constituted error.
 42

49 (rev. 2013).28 Particularly where the defendant's entire

defense was based on his allegedly impaired mental state, the

omission of these instructions was error.29

b. Voluntariness. Concerning the judge's instruction on

the voluntariness of the defendant's statements. The judge

stated:

"You may consider whether the statements, if any, made by
[the defendant] were calculated to exculpate or mitigate
his actions, such as an inference might be drawn that he
knew his statements to the police could have adverse
consequences, and therefore, you may draw an inference that
he made the statements voluntarily. Or you may not draw

28
The 1999 version of the Model Jury Instructions on
Homicide (1999) reflects this point, and the 2013 version does
so even more clearly. See Model Jury Instructions on Homicide
49 (rev. 2013) ("You may consider the defendant's mental
condition at the time of the killing, including any credible
evidence of mental impairment . . . in determining whether the
Commonwealth has proved beyond a reasonable doubt that the
defendant committed the killing with extreme atrocity or
cruelty"); Model Jury Instruction on Homicide 62 (1999) ("More
particularly, you may consider any credible evidence of the
defendant's mental impairment in determining . . . whether the
defendant acted in a cruel or atrocious manner in causing the
death of the deceased"). We urge trial judges to use these
instructions on mental impairment in their complete form.
29
During the charge conference that the judge held the day
before instructing the jury, the defendant's counsel in
substance raised the points we have just discussed in objecting
to the Commonwealth's proposed instruction on mental impairment.
After the judge charged the jury, however, defense counsel
simply stated his objection "to not providing the mental
impairment instruction that I submitted." Because we consider
the errors in the mental impairment instruction in combination
with other errors in conducting the review required by G. L.
c. 278, § 33E, see Part 6, infra, we need not decide whether the
defendant's objection to the mental impairment instruction was
preserved.
 43

that inference and you may determine that that inference is
not reasonable."

As the Commonwealth points out, there are cases that offer

support for considering the fact that a defendant made an

exculpatory statement in the course of a police interrogation in

determining whether statements were voluntary. See, e.g.,

Commonwealth v. Davis, 403 Mass. 575, 581 (1988); Commonwealth

v. Vasquez, 387 Mass. 96, 99-100 (1982). These cases, however,

did not involve jury instructions but were reviews of denials of

motions to suppress. In a case such as this, where a claim of

mental impairment is made and is central to the case, there is a

potential for misuse by a jury, that is, a risk that the

exculpating nature of the defendant's words or statements will

be used as evidence of his mental capacity. A jury instruction

such as the one given is better left unsaid.

6. Review under G. L. c. 278, § 33E. "Our duty under

G. L. c. 278, § 33E, is to consider broadly the whole case on

the law and the facts to determine whether the verdict is

'consonant with justice.'" (Citation omitted.) Gould, 380

Mass. at 680.

We have discussed previously that the admission of the

defendant's postinvocation statement constituted error, in

violation of the defendant's constitutional right to remain

silent; and that, because the defendant objected to the
 44

statement's admission, the error must be shown to be harmless

beyond a reasonable doubt. Chapman v. California, 386 U.S. at

24; Santos, 463 Mass. at 287. Although many of the defendant's

postinvocation remarks were cumulative, evidence that the

defendant had been carrying a gun to work every day for two to

three months distinctly was not, and as described in Part 4,

supra, this admission by the defendant became an important focal

point of the prosecutor's closing argument. Furthermore, the

admission of the defendant's postinvocation statement placed

before the jury the defendant's repeated requests to the

officers not to answer questions about the shooting itself or to

leave parts of the narrative out, and two instances of damning

explanation as to why the defendant chose this path: because it

left him appearing "guilty" (Gagnon's word)30 and as "the

culprit" (the defendant's word).31 The jury obviously could view

30
At about twelve minutes after the postinvocation portion
of the interview began, the officers' questioning zeroed in on
the actual shooting. As indicated, see note 16, supra, when
asked how he and the victim ended up in the chemical yard
together, the defendant stated: "Can I let this one go by, this
question" and McNeill responded, "Absolutely." The conversation
resumed and shortly thereafter the defendant stated, "That's not
what happened so I want to leave that part out." Gagnon
responded: "So you want to cut a certain part out because that
leaves you guilty, and you don't want to talk about that, and I
have no problem with that . . . . We'll skip that section,
okay? That's not a problem." (Emphasis added.)
31
Later than the point in the interview described in note
30, supra, Detective McNeill asked:
 45

the defendant's reluctance to speak about the details of the

shooting as reflecting repeatedly his consciousness of guilt,

brought home even more clearly by the "guilty" and "culprit"

remarks, which was stressed by the prosecutor in his closing.

McNeill: "At this time, is there anything else you want to
share with us on the event because, again, it will allow us
closure on the events and -- because we've already had the
statements from the four employees. But again to hear your side
of the story and then how it got into the middle of the
warehouse and out to the [d]umpster, because there's still a
little gap there that we need to know and for my own self. It's
not going to affect anyone else, but it just gives me a closure
why -- . . . ."

Defendant: "That part is [inaudible]. Can I leave that
part out?"

McNeill: "Well, it's happened. If you want to leave it
out, leave it out, but it would allow me closure and just to put
an end to it, just to get it off your chest and say, hey, here
it is, this is what happened. It's over and done with."

Defendant: "I know, but that part I'd like to leave because
-- "

McNeill: "But you understand my point? So I can, you
know, learn from it and understand it."

Defendant: "Well, it's just that that point -- I mean,
that part I want to leave out because -- "

. . .

Gagnon: "Clyde, what is it? Is it the intimate details
that's bothering you, like you don't want to talk about the
intimate details here or like what -- let us know what's going
on in your head as far as this."

Defendant: "Well, there's certain details I would like
to leave out there because I'd have to -- I mean not to give the
other, but this particular part here it could be construed as
though I -- well, I'm the culprit" (emphasis added).
 46

In addition, the specific details about the shooting incident

and his own appreciation of the victim's state of mind (see note

16, supra), which the defendant finally supplied to the officers

near the end of his statement, were chilling and could certainly

be understood by the jury as evidence of deliberate

premeditation as well as extreme atrocity or cruelty. The

potential for prejudice to the defendant arising from the

admission of the statement -- both in itself and then as used by

the prosecutor in the closing -- is obvious.

The defendant was convicted of murder in the first degree

committed with deliberate premeditation and also committed with

extreme atrocity or cruelty. Although the evidence of the

defendant's guilt under both theories was very strong, with

respect to deliberately premeditated murder, we cannot say that

the erroneous admission of the defendant's postinvocation

statement, and its use by the prosecutor in his closing, was

harmless beyond a reasonable doubt.32 See Commonwealth v.

32
As for the closing argument, the defendant did not object
to it, despite his objection to various portions of evidence
that became the basis for errors in the prosecutor's closing.
It also is true that the prosecutor's argument contained
substantial sections that were entirely proper. Nevertheless,
"[t]his is not a case in which a fleeting, isolated, improper
statement in an otherwise proper argument could, in the context
of the entire closing argument, be deemed nonprejudicial."
Commonwealth v. Lewis, 465 Mass. 119, 132 (2013). The
prosecutor's comments –- those concerning the erroneously
admitted postinvocation evidence and the improper propensity
statements that in part found their source in the postinvocation
 47

Perrot, 407 Mass. 539, 549 (1990) (in determining whether error

was harmless beyond reasonable doubt, "[t]he essential question

is whether the error had, or might have had, an effect on the

jury and whether the error contributed to or might have

contributed to the verdicts").

Turning to murder committed with extreme atrocity or

cruelty, we similarly conclude that a combination of errors

created sufficient harm to require reversal on that theory. As

discussed, a number of the defendant's postinvocation statements

that were admitted in error provided support for the jury to

find extreme atrocity or cruelty, as did the propensity-based

descriptions of the defendant in the prosecutor's closing

argument. It is true that in contrast to deliberate

premeditation, the prosecutor did not use postinvocation

evidence in his closing explicitly to build the case for a

finding of extreme atrocity or cruelty. At the same time,

however, the errors in the judge's instruction on mental

impairment had a particularly prejudicial effect. In relation

evidence -- permeated the closing, and as earlier discussed, the
prosecutor's erroneous bookend references to the postinvocation
evidence that the defendant was carrying a gun for several
months before the killing focused explicitly on the defendant's
capacity to deliberately premeditate -- an issue at the heart of
the defense: the defendant's argument to the jury at the end of
the case was that he was guilty of murder in the second degree,
not first. Further, although the judge explained to the jury
that closing arguments were not evidence, her charge did not
contain any targeted instructions designed specifically to
mitigate the effect of the argument errors. See id. at 131.
 48

to extreme atrocity or cruelty, the judge's mental impairment

instruction, which focused solely on intent and knowledge,

missed the mark: "Intent and knowledge are not aspects of

extreme atrocity or cruelty." Rutkowski, 459 Mass. at 797-798.33

Rather, as was true in that case, "[i]t should have been made

clear to the jury that they could consider evidence of mental

impairment on the specific question whether the murder was

committed with extreme atrocity or cruelty." Id. at 798. "A

jury could have found the defendant's act intentional, yet not

extremely atrocious or cruel, due to the defendant's [mental

impairment]. . . . [T]he jury should reflect the community's

conscience in determining what constitutes an extremely cruel or

atrocious killing." Commonwealth v. McDermott, 393 Mass. 451,

458 (1984). See Gould, 380 Mass. at 685-686. See also

Gonzalez, ante at 422-423.

7. Conclusion. The defendant's conviction of murder in

the first degree on the theories of extreme atrocity or cruelty

and deliberate premeditation is vacated. The Commonwealth has

33
The potential for prejudice arising from the
concentration on intent and knowledge of an instruction on
mental impairment appears to be less in relation to the theory
of deliberate premeditation. In contrast to extreme atrocity or
cruelty, intent is an aspect of deliberate premeditation, which
requires the Commonwealth to prove both an intent to kill as
well as at least some intentional reflection on the part of the
defendant. See Commonwealth v. McMahon, 443 Mass. 409, 418
(2005). See also Model Jury Instructions on Homicide 39-40
(rev. 2013).
 49

the option of either retrying the defendant on the murder

indictment or accepting a reduction of the verdict to murder in

the second degree, which was the verdict urged by the defendant

at his first trial.34 See Gonzalez, ante 424; Commonwealth v.

Thomas, ante 531, 532 (2014). See also Commonwealth v. Bell,

460 Mass. 294, 310 (2011). The Commonwealth shall inform this

court within fourteen days of the date this opinion issues

whether it will retry the defendant for murder in the first

degree or move to have the defendant sentenced to murder in the

second degree. After the Commonwealth so informs us, we will

issue an appropriate rescript to the Superior Court.

So ordered.

34
Throughout this case, the defendant consistently has
admitted that he killed the victim. In his opening statement to
the jury, the defendant's counsel appeared to suggest that the
jury should find the defendant guilty of manslaughter, and
counsel later requested a manslaughter instruction as part of
the final charge to the jury. The judge denied the request,
however, because she found it lacking support in the evidence.
The defendant does not press the point on appeal, and review of
the trial evidence leads us to agree with the judge's
conclusion.