Commonwealth v. Cadet

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SJC-10505

COMMONWEALTH vs. PIERRE P. CADET.

Plymouth. April 10, 2015. - November 18, 2015.

Present: Gants, C.J., Botsford, Duffly, Lenk, & Hines, JJ.

Homicide. Constitutional Law, Public trial, Assistance of
counsel. Practice, Criminal, New trial, Public trial,
Assistance of counsel, Argument by prosecutor, Hearsay,
Instructions to jury, Capital case. Evidence, Hearsay,
State of mind. Protective Order. Self-Defense.

Indictment found and returned in the Superior Court
Department on December 17, 2004.

The case was tried before by Frank M. Gaziano, J., and a
motion for a new trial, filed on March 28, 2013, was heard by
him.

James M. Doyle for the defendant.
Mary Lee, Assistant District Attorney, for the Commonwealth.

DUFFLY, J. In May, 2007, the defendant was convicted by a

Superior Court jury of murder in the first degree on the theory

of extreme atrocity or cruelty in the stabbing death of his girl

friend, Betina Francois. At trial, the defendant did not contest
 2

that he had stabbed the victim, but argued that he had done so in

self-defense, after she became enraged and attacked him with two

knives. In March, 2013, while his appeal from his conviction was

pending, the defendant filed in this court a motion for a new

trial; the appeal was stayed, and the motion was remanded to the

Superior Court. The defendant's appeal from the denial of that

motion was consolidated with his direct appeal.

We conclude that, although there were improprieties in the

prosecutor's conduct at trial, including in his cross-examination

of the defendant and in his closing argument, they did not create

a substantial likelihood of a miscarriage of justice.

Accordingly, we affirm the defendant's conviction and the denial

of his motion for a new trial. Having conducted a thorough

review pursuant to our duty under G. L. c. 278, § 33E, we discern

no reason to reduce the verdict or to order a new trial.

Background. We recite some of the facts that the jury could

have found, reserving additional facts for discussion of the

issues raised.

1. Commonwealth's case. At the time of the victim's death

in late September, 2004, she and the defendant had been involved

in a romantic relationship for three years. They had purchased a

triple-decker house in Brockton in 2002, and lived there in the

first-floor apartment. The relationship changed notably in

January, 2004, after an argument during which the defendant hit
 3

and shoved the victim. The victim obtained an abuse prevention

order against the defendant, but the relationship, although

volatile, continued. Notwithstanding the abuse prevention order,

the victim and the defendant generally lived together in the same

apartment, while sometimes living apart for a few weeks at a

time.1 They had numerous arguments, but still socialized

together. After the victim was involved in an automobile

accident in April, 2004, the victim and the defendant shared the

use of his automobile until September, when the victim purchased

another vehicle. They drove each other to and from work and

school, and brought each other lunch. The victim invited the

defendant to events at her workplace, and, in the spring and

summer of 2004, they went on various trips out of State and to

Canada, including trips to visit relatives in New York.

In July, 2004, the victim's family, friends, and coworkers

began noticing injuries on her body and on her face, including

bruises, black eyes, and bite marks. They also noticed that the

defendant often telephoned the victim many times a day, and that

at times she appeared upset after his calls.2 In late July or

1
The defendant's name remained on the mailbox in the front
hallway, his automobile routinely was parked near the house, and
neighbors reported seeing him regularly. He also performed
maintenance work on the neighbors' apartments.
2
Some of the victim's relatives testified that the victim
rarely telephoned the defendant, and many testified that she
never telephoned the defendant. However, telephone records from
 4

early August, 2004, the victim's family helped her remove the

defendant's belongings from the apartment, and change the locks.

The defendant was angry at the way he felt the victim's relatives

were treating him as a result of her statements to them about the

relationship. Twice thereafter, the defendant attempted to break

into the apartment. In August, 2004, he was charged with

violating the abuse prevention order, but the victim resumed

allowing him to stay in the apartment, and went on several more

trips with him, to Florida and New York. Sometime that month,

the victim's sister's husband had an encounter with the defendant

during which the defendant said that he planned to teach the

victim "a lesson." In late August, 2004, one of the victim's

friends stayed with her for five days; during that time, the

defendant made "innumerable" calls to the victim and, on two

nights, came to the victim's house unexpectedly in the middle of

the night, banging on the door and fleeing when police were

called. The defendant then resumed spending nights in the

apartment, and socializing with the victim.

On Sunday morning, September 26, 2004, neighbors saw the

defendant and the victim, who were "dressed for church," leave

the victim's cellular telephone showed that she often called the
defendant many times per day, at some points more than fifteen
times in a day; in his decision on the defendant's motion for a
new trial, the judge noted that the telephone records introduced
at trial "demonstrated continuous incoming and outgoing telephone
calls between the defendant and the victim."
 5

the apartment. Their vehicles, which had been parked side by

side in front of the house at 7 A.M., were gone for much of the

day, and returned at approximately 5 P.M. in the afternoon.

Later, one neighbor saw the defendant, still dressed in a suit,

carrying out trash; another neighbor noticed that the defendant's

vehicle was parked one-half block away from the house, in a

location where she had never before seen him park. Around

7:30 P.M. that evening, the defendant and the victim were both in

the apartment. As the neighbors who lived in the apartment above

were walking up the back stairs to their apartment and passing

the victim's kitchen door, they heard the victim say, in an

"irritated" voice, "What the fuck is this? I'm not going to take

this bullshit anymore." She then said, "I swear to God, I swear

to God," and then, "Leave me alone" three times. Approximately

ten minutes later, loud music began playing inside the apartment.

Shortly after the music started playing, a neighbor saw the

victim's automobile backing out of the driveway "very fast," and

being driven away. When one of the neighbors noticed the

victim's automobile leaving, she called the victim's cellular

telephone to complain about the loud music, thinking that the

victim had forgotten to turn it off, but there was no answer.

The music played until at least 11 P.M., but the victim did not

answer repeated calls to her cellular telephone.
 6

At approximately 9 P.M., the defendant, driving the victim's

sport utility vehicle (SUV) was involved in a single-vehicle

roll-over accident in Exeter, Rhode Island. The SUV had been

traveling at over one hundred miles per hour when it left the

highway, traveled through a wooded median, and flipped over,

landing on its roof and throwing the defendant onto the shoulder

of the road.3 Rhode Island State police officers responding to

reports of the accident found the defendant, unresponsive and

bleeding, lying face down in the breakdown lane; there was blood

nearby. The defendant was identified by documents in his pocket.

Emergency room staff determined that the defendant had at

least two injuries to his neck, including a "tracheal laceration

between the first and second tracheal ring . . . under the voice

box" and a "right internal jugular vein laceration." The

defendant also had a wound in his stomach, and a knife wound on

his left palm. The wounds were not consistent with having been

obtained as a result of the motor vehicle accident.4 The

3
A Rhode Island State police trooper testified that the
absence of skid marks on the highway where the vehicle left the
road was inconsistent with the driver having lost control of the
vehicle while attempting to avoid an obstacle in the road.
4
Later investigation of the sport utility vehicle (SUV)
showed no blood on the steering wheel, the gear shift, or the
inside or outside of the driver's door handle; there was blood on
the defendant's cellular telephone, found in the vehicle, and on
the driver's side headliner attached to the inside roof of the
vehicle. A Brockton police detective testified that the
detectives had expected a great deal more blood in the SUV,
 7

defendant underwent two surgeries that night to repair damage

from the injuries. Telephone records showed that during the

course of his drive from Brockton to Rhode Island, the defendant

made at least twenty-one calls from his cellular telephone in an

attempt to reach his brother, including numerous calls to his

brother's friend's cellular telephone, as well as calls to the

friend's land-line and to a cellular telephone belonging to the

friend's wife.

Hospital staff contacted Rhode Island State police about the

defendant's injuries, which they believed were knife wounds, and

Rhode Island troopers notified the Brockton police. On the

morning of September 27, 2004, after learning that the victim had

an active restraining order against the defendant, Brockton

police went to the victim's house to perform a well-being check.

They found the victim's body on the couch in the living room.

She had been stabbed nine times, in the chest, neck, and upper

left arm. At least four of the wounds could have been fatal.

The wound to the arm could have been consistent with being a

defensive wound that the victim sustained while attempting to

block a blow. Police found a bloody knife blade on the floor

because it appeared to have been a "major accident," and the
absence of a large amount of blood was not consistent with what
they had learned about the nature of the defendant's injuries
from Rhode Island State police troopers and hospital staff.
Troopers searched the area of the crash for evidence of a weapon,
but no knife or other weapon was found.
 8

near the couch, a knife handle on the couch near the victim, and

an unbroken knife in a crevice in the couch. Later testing

showed that blood on the knives and elsewhere in the living room,

including the victim's jeans, contained deoxyribonucleic acid

(DNA) from both the victim and the defendant. The defendant's

DNA was also present in small bloodstains on the kitchen floor

and the dining room table.

Police found a note written by the defendant on a coffee

table near the victim's body. The note began, "To everyone who

does not know the life that I've been living with [the victim]

for [three] years. I've had enough." It stated that the victim

had called the defendant as he was driving home from church and

asked him to come to the apartment as soon as possible, but when

he arrived, the victim started arguing with him and threatened to

call the police. The note also said that the victim and her

family were trying to destroy the defendant's life, that he did

not deserve to be in prison, and that his life was "already

over."

2. Defendant's case. The defendant testified in his own

defense. He said that when he arrived at the apartment, the

victim wanted to discuss their relationship but he wanted to work

on a paper for one of his college courses. The victim became

angry and threatened to call police, saying that she would

"destroy his life." He piled his clothes and books near the back
 9

door, preparing to leave, but she would not let him leave the

apartment. As he passed by her to return from the kitchen to the

living room, she swung a knife with one hand, cutting his neck.

Moments later, in the living room, the victim "came at him"

swinging two knives, saying, "Am I going to do it?" The

defendant pushed her down onto the couch and was able to grab one

of the knives the victim had been using to stab him. He then

kept stabbing her until she stopped stabbing him.

The defendant attempted to clean up the blood on the living

room carpet, realized it would be futile, wrote the note, and,

approximately fifteen minutes after the stabbing, left the

apartment and took the victim's SUV. Unsure where to go, he

decided to go to New York to see friends. He drove from Brockton

to Rhode Island, where he crashed the vehicle.

3. Motion for new trial. The defendant's motion for a new

trial raised claims of ineffective assistance of counsel,

including a claim that the court room was closed during jury

selection and that trial counsel was ineffective for failing to

have objected to the closure. In December, 2013, the trial judge

conducted an evidentiary hearing on the motion, limited to the

claim concerning court room closure. The judge thereafter denied

the motion for a new trial in its entirety. The defendant raises

the same arguments in his direct appeal as he did in his motion

for a new trial.
 10

Discussion. 1. Public trial right. The defendant claims

that a new trial is required because his right to a public trial

was violated when the court room was closed throughout the

process of jury empanelment. See Presley v. Georgia, 558 U.S.

209, 215 (2010); Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106

(2010). A decision whether to allow a new trial "is addressed to

the sound discretion of the [motion] judge." Commonwealth v.

Perkins, 450 Mass. 834, 845 (2008), quoting Commonwealth v.

Moore, 408 Mass. 117, 125 (1990). A reviewing court accepts the

motion judge's findings of fact, made after an evidentiary

hearing, if they are supported by the record, Commonwealth v.

Walker, 443 Mass. 213, 224 (2005), and defers to the judge's

assessments of credibility, Commonwealth v. Grace, 397 Mass. 303,

307 (1986), extending "special deference to the action of a

motion judge who [as here] was also the trial judge."

Commonwealth v. Rosario, 460 Mass. 181, 195 (2011), quoting

Commonwealth v. Grace, supra.

In his motion for a new trial, the defendant asserted that

although he had requested that members of his family be present

during jury selection, they were not permitted to enter the court

room because it was closed to the public throughout the process

of empanelment; the defendant asserted also that his attorney had

indicated he had had no strategic reason not to have objected to
 11

the court room closure.5 Three witnesses -- the defendant, his

brother, and his cousin -- testified at the evidentiary hearing

on the motion. The defendant's trial counsel did not testify,

and did not file an affidavit as to any strategic reason he might

have had for not objecting to the asserted closure.

A defendant asserting a claim of violation of the right to a

public trial bears the burden of showing that the court room was

closed to the public during the trial. Commonwealth v. Lennon,

463 Mass. 520, 527 (2012), quoting Commonwealth v. Cohen (No. 1),

supra at 107-108, and Commonwealth v. Williams, 379 Mass. 874,

875 (1980); Commonwealth v. Buckman, 461 Mass. 24, 28-29 (2011),

cert. denied, 132 S. Ct. 2781 (2012). In his written findings,

the judge stated that he discredited the testimony of all of the

witnesses. He remembered clearly how he had conducted jury

selection in this case; he had not ordered the court room to be

closed, to his knowledge the court officers had not closed the

court room, and no sign had been posted on the door prohibiting

5
The trial transcripts show no objection from trial counsel
concerning the exclusion of the defendant's family from the court
room at any point during the trial proceedings. Trial counsel
did file a motion seeking individual voir dire, based on concerns
of racial bias and media attention that focused on the issue of
domestic violence; the judge conducted individual voir dire
solely on the issue of domestic violence. At the end of the
selection process, the judge inquired whether counsel had any
objections, and he had none. See Commonwealth v. Lavoie, 464
Mass. 83, 89-90 & n.12 (2013), cert. denied, 133 S.Ct. 2356
(2013), and cases cited.
 12

the public from entering. See Commonwealth v. Garuti, 454 Mass.

48, 56-57 (2009) (judge who was trial judge permissibly may

consider his or her knowledge of conduct of trial in reaching

decision on motion for new trial). Commenting that, at the time

of empanelment in this case, he had been well aware of the

decision of the United States Circuit Court of Appeals for the

First Circuit in Owens v. United States, 483 F.3d 48, 66 (1st

Cir. 2007) (holding that public trial right extends to jury

empanelment),6 the judge denied the defendant's motion to take

judicial notice of the past practices of other judges in that

particular court house. See Commonwealth v. Morganti, 467 Mass.

96, 97-98, cert. denied, 135 S.Ct. 356 (2014) (discussing "the

legal culture and practice in the Superior Court in

Brockton . . . of acquiescence to the closure of the court room

to facilitate jury empanelment" prior to 2007). The transcript

of the hearing supports the judge's factual findings and provides

ample support for his determination that the witnesses were not

credible.7

6
The decision in Owens v. United States, 483 F.3d 48, 66
(1st Cir. 2007), was issued on April 12, 2007; trial in this case
began April 30, 2007, and empanelment commenced on May 1.
7
The judge commented particularly that the court room door
had not been locked, as one affidavit stated; it was not his
practice to have court officers stand in the doorway, barring
access to the court room, as an affidavit maintained had
occurred; and court officers did not repeatedly leave the court
room and go out into the hallway while court was in session to
 13

Because the defendant has not met his burden of establishing

that the court room was closed, there was no abuse of discretion

in the motion judge's denial of the motion for a new trial on the

ground of a violation of the public trial right. See

Commonwealth v. Buckman, 461 Mass. at 29. Nor was the defendant

deprived of the effective assistance of counsel. Whatever his

reasoning, trial counsel cannot have been ineffective for failing

to object to a closure that the motion judge, who had been the

trial judge, found after an evidentiary hearing did not take

place.

2. Use of word "victim." The defendant objects to the

prosecutor's references to the "victim" throughout the trial and

in his closing argument.8 Before jury empanelment, the defendant

filed a motion seeking to preclude any references to the term

"victim." The judge denied the motion; the defendant did not

talk to family members waiting there, as one of the defendants'
relatives stated had happened. In addition, because the
defendant had exercised his right to be present at sidebar, at
least two court officers had been required to be stationed near
the bench during questioning of the venire, leaving fewer
officers available for other duties.
8
The defendant also challenges the prosecutor's repeated
use of the word "monster" in his closing argument, and counsel's
failure to object, as well as the prosecutor's use of other
similar language, that the defendant asserts were impermissible
attacks on his character. We consider these claims in
conjunction with our discussion of other issues in the
prosecutor's closing, as part of the defendant's claim of
ineffective assistance, infra.
 14

seek a continuing objection, and did not object to the use of the

word "victim" during the trial. The defendant maintains on

appeal that the use of this term "prejudged" the questions of

self-defense and mitigation, which were the heart of the defense,

and "injected the prosecutor's personal opinion into the trial,"

depriving the defendant of the presumption of innocence and

violating his right to a fair trial.

In the circumstances of this case, we conclude that the use

of the word "victim" did not create a substantial likelihood of a

miscarriage of justice. See Commonwealth v. Rosario, 460 Mass.

181, 190 (2011). Here, there was no dispute that the defendant's

girl friend had been killed by being stabbed. We assume "a

certain degree of jury sophistication," Commonwealth v. Kozec,

399 Mass. 514, 517 (1987), and do not think it likely that the

jury were swayed by the repeated references to the "victim."

Nonetheless, we emphasize that the better practice is for the

prosecutor, defense counsel, the judge, and all of the witnesses

to refrain from describing the person killed as the "victim."

See Commonwealth v. Krepon, 32 Mass. App. Ct. 945, 947 (1992)

(term "victim" may not be used in sexual assault cases, where

complaining witness should be referred to as "alleged victim").

3. Exclusion of "hearsay" testimony by the defendant. The

defendant argues that the judge's allowance of the Commonwealth's

objection to certain portions of the defendant's testimony
 15

violated his rights to present a defense and to testify on his

own behalf, and that trial counsel was ineffective for failing to

pursue any objection to the judge's ruling. The defendant

contends that he sought to testify concerning statements that he

now asserts the victim made to him on the night of her death,

immediately before the final confrontation, in which the victim

expressed anger at having just learned that the defendant had

cheated on her and had also revealed to members of the victim's

family statements she had made to the defendant in confidence,

including that she had in the past been raped by a cousin.

The defendant argues that his purpose in seeking to testify

about the victim's statements was not to have them admitted for

their truth, but, rather, to explain the victim's state of mind

(her rage). See Commonwealth v. Qualls, 425 Mass. 163, 167

(1997), S.C., 440 Mass. 576 (2003) (although broad rule on

hearsay evidence prohibits admission of out-of-court statement

offered to prove truth of matter asserted, "the state of mind or

intent of a person, whenever material, may be shown by his

declarations out of court" [citation omitted]). See also Mass.

G. Evid. § 801(c) comment (2015). According to the defendant,

this evidence would have provided material support for his

contention that the victim had violently attacked him, causing

him to stab the victim in self-defense, and without such an
 16

explanation, his description of the victim's sudden rage would

have appeared far less comprehensible to the jury.

In evaluating the defendant's claim, we have considered the

context in which issues relating to statements of the victim were

raised and considered prior to and during the trial. Before

trial, the defendant filed a motion in limine to prevent the

introduction of evidence concerning the restraining order the

victim had obtained against him, including prior alleged conduct

by the defendant that defense counsel characterized as prior bad

acts, and statements the victim was asserted to have made to two

friends and a family member: that the defendant had beaten her

and then threatened to kill himself, and that he had said if she

tried to leave him he would kill her and then himself. The

Commonwealth sought to introduce evidence of the restraining

order, the affidavit in support of the order, and statements by

the victim's friends, family, and coworkers concerning prior

conduct by the defendant.

After a hearing on both motions, the judge ruled that the

restraining order itself could be admitted, but the victim's

application and affidavit were inadmissible. He also allowed

introduction of testimony by percipient witnesses concerning

conduct of the defendant toward the victim, to be admitted on the

issue of the defendant's and the victim's hostile relationship.

Statements of the victim concerning the defendant, including any
 17

fear of him, were not to be admitted. The defendant did not

object to these rulings, before or during trial.9

At trial, when the judge sustained the prosecutor's

objection to the defendant's incipient testimony about what he

said to the victim shortly before the stabbing, or she to him,

defense counsel did not challenge the ruling. Instead, he

cautioned the defendant to respond "without getting into any

conversation." Counsel thereafter included this warning in each

question, telling the defendant that he was not to describe any

statements, and was to answer only in terms of his or the

victim's actions.10 At no point did counsel make any proffer

regarding the introduction of statements by the victim to reflect

her angry state of mind; indeed, on two occasions when the

defendant said the victim had been "upset" or "mad," counsel

interrupted him to explain that he was not to tell the jury what

anyone had said.

In his motion for a new trial, appellate counsel argued, as

he does on appeal, that the defendant had been seeking to testify

9
The defendant also does not challenge the rulings on
appeal, and we discern no abuse of discretion in them. See,
e.g., Commonwealth v. Mendes, 441 Mass. 459, 470-472 (2004);
Commonwealth v. Stroyny, 435 Mass. 635, 642-643 (2002).
10
In response to at least seven of the defendant's answers,
counsel interjected some caution such as "don't tell me what she
said," "don't tell us what anybody said," or "you're not allowed
to say what she said."
 18

about the victim's statements for the purpose of showing her

enraged state of mind, and that trial counsel's failure to object

deprived him of the ability to present a full defense. Counsel

argued that those statements would have included that the victim

said she wanted to discuss their relationship, or that she had

just learned of the defendant's infidelity and his disclosure to

other family members of statements she made to him in confidence.

In support of this argument, the defendant attached his own

affidavit describing the evidence regarding state of mind he

contends he wanted to introduce; he did not submit an affidavit

from trial counsel concerning the out-of-court statements,

counsel's reasons for not objecting to their exclusion, and

whether such a decision had been strategic.

In his ruling on the defendant's motion for a new trial, the

judge discredited as self-serving the portion of the defendant's

affidavit in which the defendant set forth the evidence he argues

he was prevented from introducing. See, e.g., Commonwealth v.

Rebello, 450 Mass. 118, 130 (2007) (where motion judge was also

trial judge, judge was entitled to discredit defendant's

statement in affidavit as self-serving). The defendant has not

established that the judge erred in sustaining the Commonwealth's

objection, or that defense counsel's decision not to object to

the exclusion of whatever hearsay statements the defendant

intended to offer was manifestly unreasonable.
 19

4. Jury instructions. The defendant argues that errors in

the judge's instructions on self-defense and the excessive use of

force in self-defense impermissibly shifted the burden of proof

from the Commonwealth to the defendant. The instruction given

was based on the language of the model jury instruction on

homicide that was in effect at the time of the defendant's trial

in 2007. See Model Jury Instructions on Homicide 30 (1999). The

defendant points to other circumstances in which an instruction

has been deemed inadequate to instruct the jury on the

Commonwealth's burden of proof where a defendant presents a

defense of self-defense or excessive use of force in self-

defense. See, e.g., Commonwealth v. Santos, 454 Mass. 770, 774-

775 (2009). The defendant complains that where the judge

inserted an extensive discussion of self-defense between his

presentation of reasonable provocation and sudden combat as

mitigating factors and his subsequent discussion of excessive use

of force in self-defense, which did not explicitly repeat that

excessive use of self-defense was a mitigating factor, the jury

may have been led to believe that excessive use of force in self-

defense was not a mitigating factor. The defendant also may be

suggesting that the judge's instruction on excessive use of force

in self-defense improperly placed on the defendant the burden of

proving the excessive use of force.
 20

There was no error. The judge explicitly told the jury that

the defendant could be convicted of murder only if the

Commonwealth proved beyond a reasonable doubt the absence of

three mitigating circumstances, and then listed the three,

including the excessive use of force in self-defense. See

Commonwealth v. Bolling, 462 Mass. 440, 448-449 (2012)

(discussing essentially identical instruction to that given here,

and distinguishing it from improper instruction in Commonwealth

v. Santos, supra). The judge's instruction did group together

the mitigating circumstances of heat of passion on reasonable

provocation and heat of passion induced by sudden combat, and

then separately discussed the excessive use of force in self-

defense. Nonetheless, the judge properly explained that the jury

must find the defendant not guilty of any crime if the

Commonwealth failed to meet its burden of proving beyond a

reasonable doubt the absence of self-defense, and that if the

Commonwealth proved the excessive use of force by the defendant

in self-defense, the appropriate verdict would be manslaughter.11

5. Ineffective assistance of counsel. The defendant

maintains, as he did in his motion for a new trial, that his

11
The revisions to the Model Jury Instructions on Homicide
that this court approved in 2013, and on which the defendant
relies, offer a revised explanation of these concepts that may be
more clear than the 1999 model instructions in effect at the time
of the defendant's trial, but the substance of both versions is
the same.
 21

trial counsel's performance denied him constitutionally effective

assistance of counsel, and accordingly, that a new trial is

required. He argues that counsel failed to marshal the evidence

persuasively to show that he stabbed the victim in self-defense

or at least on account of one of the reasons that mitigate murder

to voluntary manslaughter; failed to object to certain portions

of the medical examiner's testimony; failed to obtain an

independent forensic analysis of the crime scene that would have

supported the defendant's theory of self-defense or excessive use

of force in self-defense; failed to object to leading questions

by the prosecutor; and failed to object to a number of

improprieties by the prosecutor, particularly with regard to the

prosecutor's closing argument.

Our review of the record indicates that, although some of

the conduct complained of was not ineffective, in other respects,

the performance of the defendant's trial counsel fell below the

standard we would expect of an ordinary fallible lawyer. For

instance, counsel's description of the defendant's neck wounds in

his opening statement -- that the defendant had been cut

"completely across the neck" -- was not supported by the medical

evidence. Rather, the evidence showed that the defendant

suffered an internal laceration to his jugular vein, a laceration

to his trachea, a stab wound to his stomach, and another to his

left palm; the large cut across the defendant's neck shown in
 22

photographs introduced in evidence was the result of surgery

conducted to explore and repair the two neck wounds. Counsel's

inaccurate characterization of the neck injuries permitted the

prosecutor to pursue quite extensively with the medical examiner

a discussion of the defendant's actual neck injuries, as well as

to argue to the jury the implausibility of the defense counsel's

description of the defendant's neck injuries.

Defense counsel's reasons in deciding to pursue this

implausible argument are unclear. We note, however, that the

defendant himself testified that the victim had "slashed" and

"sliced" his throat and that he was bleeding from his throat

while still in the victim's apartment and while driving away from

the apartment to Rhode Island. Additionally, the defendant's

affidavit filed in support of his motion for a new trial mentions

his wounds and discusses the importance of presenting the jury

with accurate information about the nature of those wounds, which

he asserts counsel failed to do by not calling as a witness a

physician who had treated him in the hospital in Rhode Island.12

It is also the case that, in some respects, the prosecutor=s

cross-examination of the defendant was improper and the

defendant's counsel was deficient in failing to object. The

prosecutor took a highly aggressive approach in his cross-

12
The affidavit does not reference the defendant's
characterization of his wounds during his trial testimony.
 23

examination of the defendant. He was entitled to do so, but in a

number of instances he crossed the line of appropriateness and

the questioning bordered on the abusive. The prosecutor, for

example, repeatedly asked sarcastic, gender-stereotyped questions

of the defendant as to whether he was too "weak" or "frail" to

fend off a woman, particularly one who was smaller than he.13 See

Mass. G. Evid. § 1113(b)(3)(c) note (2015) ("Both prosecutors and

defense counsel should refrain from what is termed 'broad

brushing' or arguments based on racial, ethnic, or gender

stereotypes"). The prosecutor also asked several times whether,

while the victim was "bleeding to death," the defendant had heard

her blood "gurgling" in her throat, although there was no

evidence of "gurgling"; and he displayed photographs of the

victim's wounds to the defendant, commenting, "go on, you can

look at it, you did it," followed by additional similar

commentary.14 These questions and comments were wholly

unnecessary and improper.

13
In the same vein, the prosecutor asked, "Well, again, do
you have anything wrong with you that makes you less of a man
that you don't have that much strength that this woman could
overpower you? Anything we should know about?" Defense
counsel's objection to that particular question was sustained.
14
Soon thereafter, the prosecutor displayed another
photograph of the victim to the defendant, saying, "Why don't you
take a look at your handiwork here . . . . Do you remember making
these stab wounds? Look at it." When the defendant did not
respond, the prosecutor said, "All right. You want to be a
 24

The defendant challenges a number of asserted improprieties

in the prosecutor's closing argument. Here, as in his cross-

examination of the defendant, certain forceful and aggressive

statements by the prosecutor permissibly attacked the credibility

of the defendant's version of events and offered reasonable

explanations of the evidence, such as the inferences that could

be drawn from the nature of the victim's wounds. But the

prosecutor also came close to, and at times crossed over, the

line of propriety and what is expected from a prosecutor.

In his closing, the prosecutor repeatedly referred to the

defendant as a "monster," and a "controlling, jealous, angry,

violent man." The defendant contends that these references were

improper in part because they were premised on, and exploited,

prior bad act evidence relating to the defendant's conduct toward

the victim that the judge had permitted to be introduced solely

on the issue of the defendant's relationship with the victim

leading up to the stabbing incident. The Commonwealth maintains

that the prosecutor was responding appropriately to the

defendant's closing, in which defense counsel had argued that

friends and family of the victim who testified at trial had

coward, be a coward." On defense counsel's objection, the judge
ordered the jury to disregard the comment.
 25

presented a biased view of the victim, in essence painting her as

an "angel" and the defendant as a "monster."15

The prosecutor was permitted to respond by urging the jury

to pay attention to the testimony of those witnesses who had

portrayed the defendant in a light different from that in which

he sought to portray himself. The prosecutor fully exploited the

defendant's rhetorical use of this angel/monster dichotomy, and

his use of defense counsel's term "monster" in this context was

not, standing alone, improper. Cf. Commonwealth v. McColl, 375

Mass. 316, 325 (1978) (prosecutor's improper comments were

"facetious response" to "similar references . . . made . . . by

the defense counsel is his argument").

The prosecutor's closing, however, went beyond the bounds of

permissible response to the defendant's argument, and came close

to an invitation to the jury that they convict the defendant

because of his bad character. At one point, the prosecutor

argued:

15
Defense counsel stated:

"We heard from [the victim's] family and friends. We
heard about their perceptions of the history of the
relationship. . . . These people who described their
relationship . . . were all biased. They were all family
and friends of her[s]. They all had a view of the
relationship where she was . . . the angel. He was the
monster, he was the stalker, . . . the abuser. That's how
we'd all like our family and friends, I'm sure, and we can
see that, they can remember us in a good light."
 26

"[R]emember what [two friends of the victim] said to
you, and more importantly remember their body language.
These are two women that both saw the defendant a little
different than he appeared [when he testified at trial]. I
suggest to you that these two women saw what's under the
façade. They saw that monster lurking below the surface.
Katherine . . . was on the stand trembling, crying, because
she'd seen this man so enraged and out of control at a club
that she feared for the safety of [the victim]. Elsa . . .
was so scared when she stayed at [the victim's apartment]
that she slept in the bedroom with the victim with the door
locked. They saw the monster below the surface, and the
last person to see that monster was [the victim].

". . . .

"And there's nothing [i.e., no sound coming from the
victim's apartment] because [the victim] is looking into that
monster's eyes as he puts that knife to her throat and she
knows if she makes any noise it might be her life."

Defense counsel made no objection to any of the prosecutor's

closing remarks, even when the judge at one point sua sponte

interrupted the prosecutor. The judge properly instructed the

jury that they could consider evidence regarding the relationship

between the defendant and the victim only as it bore on the

defendant's motive and intent, the limited purpose for which it

had been introduced. Considered in the context of the

prosecutor's entire closing, we think the jury would have been

capable of taking with a "grain of salt" his references to the

defendant as a monster. See Commonwealth v. Bradshaw, 385 Mass.

244, 277 (1982).

The prosecutor also came close to, and at times crossed

over, the line of propriety with respect to other of his
 27

arguments. In addition to excesses previously noted, the

prosecutor described the defendant's account of the stabbing four

separate times as "crap, pure and simple," or simply "crap," and

another time as "a line of bull." It is permissible for a

prosecutor to argue that a defendant's testimony is not credible,

see, e.g., Commonwealth v. Espada, 450 Mass. 687, 699 (2008);

Commonwealth v. Oliveira, 431 Mass. 609, 613 (2000), but repeated

use of crude slang to describe the defendant's version of the

critical events, as the prosecutor did here, is offensive and

demeaning, and runs the risk of transforming criticism of the

defendant's testimony into an attack on the defendant's

character. See Commonwealth v. Daley, 439 Mass. 558, 563 (2003)

(improper for prosecutor to argue that jury should consider

evidence of defendant's bad character as proof that he or she

committed crime). Further, the prosecutor's persistent and

graphic references to the victim's injuries appeared designed

improperly to appeal to the jurors' sympathies and emotions.16

16
In a number of recent cases, this court has been
confronted with closing arguments by prosecutors who crossed the
line between permissible advocacy and improper rhetoric. See,
e.g., Commonwealth v. Niemic, 472 Mass. 665, 673-677 (2015);
Commonwealth v. Scesny, 472 Mass. 185, 200-206 (2015). See also
Commonwealth v. Lewis, 465 Mass. 119, 128-133 (2013). We again
refer counsel to the Massachusetts Guide to Evidence,
§ 1113 (2015). See Commonwealth v. Scesny, supra at 203 n.29.
In addition, we commend to trial judges the suggestion that,
immediately before counsel make their closing arguments, jurors
be provided with a brief instruction about the purposes and
limitations of closing arguments. See Commonwealth v. Olmande,
 28

See Mass. G. Evid. § 1113(b)(3)(C) (impermissible to appeal to

jurors= emotions, passions, prejudices, or sympathies).

Notwithstanding these improper aspects of the prosecutor's

cross-examination and closing, and the failures of defense

counsel in not objecting to them, we conclude that the errors did

not create a substantial likelihood of a miscarriage of justice.

See Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469

Mass. 447 (2014).

During the prosecutor's cross-examination of the defendant,

defense counsel objected repeatedly to the prosecutor's

overreaching questions and comments, and the judge sustained a

number of them. With respect to the closing, the judge told the

jury -- albeit only in general terms -- immediately before

closing arguments and again in his charge, that such arguments

are not evidence. Most importantly, the evidence against the

defendant was overwhelming, and we cannot conclude that the

prosecutorial excesses were likely to have influenced the

verdict. See Commonwealth v. Scesny, 472 Mass. 185, 203-206

(2015); Commonwealth v. Wright, supra. See also Commonwealth v.

Dagley, 442 Mass. 713, 725-726 (2004), cert. denied, 544 U.S. 930

(2005). The number, nature, and severity of the victim's stab

wounds; the relative sizes of the victim and the defendant; the

84 Mass. App. Ct. 231, 241-243 (2013) (Agnes, J., concurring in
result).
 29

blood evidence relating to the location, amount, and identity of

blood within the victim's apartment and in the SUV the defendant

drove after the stabbing; the defendant's own testimony

describing what happened; and the defendant's note, found on a

table in the living room, together made the defendant's theory of

self-defense or even excessive use of force in self-defense

implausible, particularly in light of the evidence concerning the

nature of the relationship between the victim and the defendant

from January, 2004, until her death in September, 2004.

We conclude that there is no reason to exercise our

authority under G. L. c. 278, § 33E, to reduce the verdict or to

order a new trial.

Judgment affirmed.

Order denying motion for a new
trial affirmed.