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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.