Commonwealth v. Durand

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SJC-11221

COMMONWEALTH vs. ERIC J. DURAND.

Bristol. May 6, 2016. - October 7, 2016.

Present: Gants, C.J., Cordy, Duffly, Lenk, & Hines, JJ.1

Homicide. Assault and Battery. Constitutional Law,
Confrontation of witnesses, Admissions and confessions,
Voluntariness of statement, Assistance of counsel, Double
jeopardy. Evidence, Cross-examination, Admissions and
confessions, Voluntariness of statement, Hearsay, Expert
opinion. Witness, Cross-examination, Expert. Practice,
Criminal, Capital case, Confrontation of witnesses, Motion
to suppress, Admissions and confessions, Voluntariness of
statement, Assistance of counsel, Mistrial, Hearsay,
Argument by prosecutor, Conduct of prosecutor, Dismissal,
Double jeopardy, Instructions to jury.

Indictments found and returned in the Superior Court
Department on December 11, 2003.

After review by this court, 457 Mass. 574 (2010), the cases
were tried before Robert J. Kane, J.

Gary G. Pelletier (Timothy J. Bridl with him) for the
defendant.
Tara L. Blackman, Assistant District Attorney, for the
Commonwealth.

1
Justices Cordy and Duffly participated in the deliberation
on this case prior to their retirements.
 2

HINES, J. The defendant was convicted by a jury in

2006 of murder in the first degree and assault and battery

with a dangerous weapon, in connection with the October,

2003, death of a four year old child. Because of errors in

the defendant's first trial, this court reversed those

convictions and remanded the case to the Superior Court for

a new trial. Commonwealth v. Durand, 457 Mass. 574, 601

(2010). On August 29, 2011, a jury again convicted the

defendant of murder in the first degree by extreme atrocity

or cruelty, and assault and battery by means of a dangerous

weapon. The judge sentenced the defendant to life in

prison without the possibility of parole on the murder

conviction to be served concurrently with a term of from

two to four years in State prison on the assault and

battery conviction.

On appeal, the defendant asserts error in (1) the

limitation of his right to cross-examine the medical examiner;

(2) the denial of his motion to suppress statements; (3) the

denial of the motion for a mistrial after the jury were exposed

to inadmissible evidence; (4) the admission of hearsay testimony

by one of the Commonwealth's expert witnesses; (5) the denial of

the motion for a mistrial related to improper statements made

during closing arguments; (6) the denial of the motion to
 3

dismiss on double jeopardy grounds for prosecutorial misconduct;

and (7) the denial of a requested jury instruction. Although we

conclude that the Commonwealth's closing argument improperly

referenced inadmissible evidence, this error alone does not

require a new trial or other relief. We also have conducted a

review pursuant to G. L. c. 278, § 33E, and we discern no basis

to grant relief.

Background. We summarize the facts the jury could have

found, reserving certain details for later discussion. At

around the time of the victim's death, the defendant was the boy

friend of the victim's mother. The mother lived with her

children, the victim and his twin brother, in the basement of a

friend's home. The defendant was a frequent overnight guest.

Although the defendant had a good relationship with the victim's

twin brother (twin), his relationship with the victim was

strained. The defendant often called the victim "pissy pants"

or "piss pants" because the child "sometimes" urinated in his

pants and was not as large as his older twin. The defendant did

not like that the victim was "clingy" with his mother and

antagonized the child and called him "Mama's boy." This conduct

intimidated the victim and occasionally caused him to cry.

On October 20, 2003, the date of the victim's death, the

mother departed early in the morning for work and left the

victim and his twin with the defendant. A roommate who lived in
 4

one of the basement rooms, and who often took care of the twins,

was also home. Later that morning, the victim urinated on

himself and the defendant told him to stand in the corner as

punishment. When the victim asked to use the bathroom, the

defendant refused. The defendant called the victim "piss

pants." When the victim turned around in response, the

defendant threw a toy shark at the child's face. The roommate,

who was present, later testified that the defendant threw the

toy "kind of hard," and that he "looked a little angry or mad"

as he did so.

When the defendant began to take care of the victim's wet

clothes, the victim urinated on the defendant's pants. The

defendant showed the roommate the wet spot on his pants, and

although she thought that the defendant seemed upset, he stated

that it was "no big deal" because he could just go home and get

another pair of pants. The defendant took the victim into the

upstairs bathroom to wash him while the roommate went upstairs

to the kitchen. The roommate saw the defendant walk by the

kitchen with the victim and assumed they were returning to the

basement. She came across the twin while she was upstairs and

took him back downstairs to the twins' room. She noticed that

the victim was lying on the bed, not moving, but also that he

did not look to be in any distress. She returned upstairs.
 5

Thereafter, the defendant came upstairs to tell the

roommate that the victim had fallen down the stairs. The

roommate remained at the computer she was using; the defendant

returned to the basement. Soon thereafter, the defendant

returned upstairs and told her that the victim was "acting

weird." Again, she remained at the computer and the defendant

went back to the basement. Moments later, the defendant

returned a third time and said that something was "seriously

wrong." The roommate ran downstairs to the twins' bedroom and

found the victim lying in bed, not moving, with his eyes rolled

back. She telephoned the mother, who spoke to the defendant and

told him to telephone 911. He did so. During both telephone

calls, the defendant explained that the victim had fallen down

the stairs. Emergency medical technicians arrived and found the

victim "cool, cold" to the touch. They were not able to

resuscitate the victim, who was later pronounced dead at a

hospital.

That same day, detectives from the New Bedford police

department asked the defendant if he would accompany them to the

police station for an interview. The defendant agreed. His six-

hour interview was recorded with the defendant's consent.

During that interview, the defendant alternately told police

that he had carried the victim down the stairs and that the

victim had been injured by falling down the stairs. He also
 6

denied throwing anything at the victim. However, he admitted to

police that while he was in the bathroom with the victim, he

noticed that the victim appeared "scared" and was shaking while

using the toilet. The detectives informed the defendant that

the victim had died and that the victim's injuries were not

consistent with a fall down the stairs. Despite aggressive

questioning, the defendant repeatedly denied any involvement in

the victim's death. After the defendant left the police

station, he telephoned the roommate and told her not to say

anything to the police about his throwing the toy shark at the

victim because "they didn't need to know."

The following day, the mother went to the defendant's home.

During the conversation, the defendant claimed that the victim

fell down the stairs. The police arrived, requested another

interview, and the defendant agreed. He went to the police

station, and this interview also was recorded. Detectives

informed him that an autopsy report showed that the cause of

death was a blow to the victim's stomach. The defendant again

denied involvement in the victim's death. The police arrested

the defendant for murder. While being transported for his

arraignment, the defendant tearfully confessed to a security

officer that he had tripped on the stairs and fallen on the

victim.
 7

The medical testimony was that the victim died as a result

of blunt force trauma to the abdomen, resulting in a rupture of

the duodenum and a transection of the pancreas. The fatal

injuries were not consistent with a fall down a flight of stairs

or with a blow delivered by a child of the same age as the

victim's brother. The defendant's theory, that the victim's

injuries were caused by his twin brother during horseplay, was

supported by an expert witness who opined that the injuries

could have resulted from the twin jumping on the victim's

stomach.

Discussion. 1. Confrontation and due process. The

defendant argues that the judge's limitation of his right to

cross-examine the Commonwealth's expert, Dr. Abraham Philip,

regarding an electronic mail (e-mail) message violated his right

to confrontation as guaranteed by the Sixth Amendment to the

United States Constitution and art. 12 of the Massachusetts

Declaration of Rights. More specifically, the defendant

contends that the e-mail message was the basis of the witness's

termination from his position with the office of the chief

medical examiner and, therefore, it was probative of the

expert's competence and bias. He claims that his right to

cross-examination on the issue was expressly protected under

Bullcoming v. New Mexico, 564 U.S. 647, 652, 662 (2011)

(confrontation clause implicated where "surrogate testimony" of
 8

scientist who did not certify, perform, or observe laboratory

test precluded opportunity for defendant to cross-examine

testing scientist removed from employment for undisclosed

reasons). The judge denied the request to impeach Dr. Philip

with the e-mail message and ruled that any probative value it

might have had on the issue of the witness's bias or competence

was outweighed by its potential for misleading the jury.2 There

was no error.

We agree that under the Sixth Amendment and its cognate

provision, art. 12, a central purpose of the right of

confrontation is "to weed out not only the fraudulent analyst,

but the incompetent one as well." Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 319 (2009). The "lack of proper

training or deficiency in judgment may be disclosed in cross-

examination." Id. at 320. However, "trial judges retain wide

2
The electronic mail message stated in relevant part:

"I finalized the report on [the victim], a few corrections
have to be made, which my secretary will do early this morning.
My problem is I cannot find the original charts on this case, to
check if everything else is okay. The last I heard the file was
with [an attorney], and she locked it in her office and has been
away on Thursday and Friday.

"There are some very bizarre events going on in the office
with weird accusations being leveled against me. So when you
arrange with [the attorney] to hand over the file to me, please
insist that a witness be present in the room to prevent weird
charges of having urinated on the chart or farted while working
on the chart being leveled against me by the head honcho who
runs this agency."
 9

latitude . . . to impose reasonable limits on such cross-

examination based on concerns about, among other things,

harassment, prejudice, confusion of the issues . . . or

interrogation that is repetitive or only marginally relevant."

Commonwealth v. Woodbine, 461 Mass. 720, 751 (2012), quoting

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). We review a

judge's imposition of such limits for abuse of discretion. See

Commonwealth v. King, 445 Mass. 217, 245 (2005), cert. denied,

546 U.S. 1216 (2006).

As a threshold matter, the defendant's reliance on

Bullcoming, which shares only a superficial resemblance to the

facts in this case, is misplaced. In Bullcoming, the United

States Supreme Court held, in a case where the analyst who had

performed the testing had been terminated from his position

prior to trial, that testimony by a "surrogate" analyst violated

the defendant's right to confrontation by preventing the inquiry

whether incompetence or dishonesty resulted in removal from his

position. Id. at 661-662. The pivotal consideration in

Bullcoming was that the analyst did not testify at the trial.

Bullcoming does not stand for the proposition, as the defendant

suggests here, that the right to confrontation extends to the

particular reason for the witness's termination from his

position as a medical examiner. Thus, Bullcoming is

distinguishable because the Court's analysis applies only where
 10

the expert was not produced at trial. Here, Dr. Philip

testified at the trial and was subject to cross-examination,

except for the limitation imposed by the judge.

The judge's ruling prohibiting cross-examination concerning

the e-mail message was not an abuse of discretion. L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014). First, the judge

knew about Dr. Philip's civil case against the medical

examiner's office and knew that the termination was not based on

Philip's ability to conduct or report on the medical aspects of

his job. Philip v. Cronin, 537 F.3d 26, 31-32 (1st Cir. 2008).

Second, the defendant's proffer failed to suggest any causal

relationship between Dr. Philip's termination and his

professional competency. Defense counsel outlined the disputed

e-mail message and a response to it from the former prosecutor

allegedly showing encroachment of law enforcement, the published

Philip v. Cronin opinion, and personal testimony from Dr. Philip

regarding his inability to access the physical file containing

his notes. At most, the message from the former prosecutor

showed concern regarding Dr. Philip's professionalism; there was

no concern expressed regarding Dr. Philip's capabilities.

Third, the judge ruled that defense counsel could ask Dr. Philip

whether he was hindered in his efforts to complete the autopsy

report, whether he felt pressured to finish the report within a

time frame that was contrary to his normal standards, and
 11

whether any diminishment of memory may have affected the final

report. Defense counsel did not question Dr. Philip regarding

any pressures he experienced from the prosecutor or from his

superiors at the medical examiner's office.

2. Motion to suppress. The defendant argues that the

motion judge, who was also the trial judge, erred in denying his

motion to suppress statements made to the police during two

police interrogations on October 20 and 21, 2003, on the grounds

that he invoked his right to remain silent and his right to

counsel. Although the defendant could have challenged the

judge's ruling on these grounds in his first appeal, he did not

do so. See Commonwealth v. Durand, 457 Mass. 574, 590-598

(2010). He argued only that the motion judge erred in ruling

that the statements made to the police on October 20 were

voluntary. Id. at 593. We affirmed, concluding that despite

the use of "improper interrogation tactics" by the police, the

statements made on October 20, 2003, were voluntary. Id. at

598. Passing the question whether our G. L. c. 278, § 33E,

review of the "whole case, both the law and the evidence,"

Commonwealth v. Gunter, 459 Mass. 480, 485-486, cert. denied,

132 S. Ct. 218 (2011), quoting Dickerson v. Attorney Gen., 396

Mass. 740, 744 (1986), necessarily encompassed the judge's

denial of the motion on these grounds as well, we address the

merits of the defendant's claims. There was no error.
 12

"In reviewing a ruling on a motion to suppress, we accept

the judge's subsidiary findings of fact absent clear error 'but

conduct an independent review of his ultimate findings and

conclusions of law.'" Commonwealth v. Craan, 469 Mass. 24, 26

(2014), quoting Commonwealth v. Scott, 440 Mass. 642, 646

(2004). "[O]ur duty is to make an independent determination of

the correctness of the judge's application of constitutional

principles to the facts as found." Commonwealth v. Bostock, 450

Mass. 616, 619 (2008), quoting Commonwealth v. Mercado, 422

Mass. 367, 369 (1996). However, where "the judge's findings are

based almost exclusively on the two videotapes of the

defendant's interviews, . . . 'we are in the same position as

the [motion] judge in reviewing the videotape,' and need not

accord such deference." Durand, 457 Mass. at 596, quoting

Commonwealth v. Novo, 442 Mass. 262, 266 (2004). See

Commonwealth v. Bean, 435 Mass. 708, 714 n.15 (2002).

a. Background. We recite the motion judge's findings of

fact supplemented with evidence in the record that is

uncontroverted or implicitly credited by the judge. See

Commonwealth v. Melo, 472 Mass. 278, 286 (2015). On October 20,

after the police read the defendant the Miranda rights, he

inquired about his eligibility for public counsel but then

remarked, "I do work, so, I don't believe I'm going to need a

lawyer anyway, but I'm just saying, like you said, the court
 13

will appoint one . . . . Well, I don't need one." Later in the

same interview, the defendant told the officers, "I want to go

home and I want to go to bed." Later, he asked, "Can I go

please? Can I go please?" The defendant readily answered the

police officers' subsequent questions. Near the end of the six-

hour interview, the defendant stated, "Let's stop. Let's just,

you guys are going to drive me crazy." One of the police

officers responded, "Okay. If you want to stop, you got to let

us know." The defendant continued to talk and the police

continued to press for a confession. The defendant was asked

again, "Okay, do you want to stop?" He responded, "Please," and

the interview concluded a few moments later.

At the second interview on October 21, after being informed

of his right to remain silent, the defendant replied, "Of course

I want to talk to you. I want to get this resolved." Toward

the middle of the interview, the defendant stated, "I am going

to have to get a lawyer. Everything is going to come down on me

because you think that I was in the room with [the victim] at

that certain time when he died." The defendant continued to

speak with the police at length.

b. Right to remain silent. "The Fifth Amendment provides

that '[n]o person . . . shall be compelled in any criminal case

to be a witness against himself."' Commonwealth v. Simon, 456

Mass. 280, 285, cert. denied, 562 U.S. 874 (2010). "In Miranda
 14

[v. Arizona, 384 U.S. 436, 444 (1966)], the United States

Supreme Court established a 'prophylactic' mechanism . . . to

safeguard the protections afforded by the Fifth Amendment during

police interrogation" (citation omitted). Simon, supra. Thus,

Miranda warnings are required only when a suspect is subject to

a custodial interrogation. Id. In all cases, "responsibility

for invoking the protections guaranteed by Miranda . . . and

art. 12 rests squarely in the hands of criminal defendants"

(citation omitted). Commonwealth v. Collins, 440 Mass. 475, 479

n.3 (2003). Invocations of the right to remain silent must be

scrupulously honored. Michigan v. Mosley, 423 U.S. 96, 104

(1975). When faced with an ambiguous request to stop

questioning, the police may seek to clarify the defendant's

intent. Commonwealth v. Santos, 463 Mass. 273, 286 (2012).

However, clarifications of a defendant's request to stop

questioning cannot "be used to cast retrospective doubt on . . .

the initial request itself" (quotation and citation omitted).

Id. at 287. Accordingly, a defendant may invoke the right to

remain silent after initially waiving that right. Commonwealth

v. Clarke, 461 Mass. 336, 343 (2012), quoting Commonwealth v.

Bradshaw, 385 Mass. 244, 265 (1982). The subsequent invocation

"must be clear and unambiguous[], . . . such that a reasonable

police officer in the circumstances would understand the

statement to be an invocation of the Miranda right" (quotations
 15

and citations omitted). Commonwealth v. Howard, 469 Mass. 721,

731 (2014). Statements made during a custodial interrogation

may still be admissible at trial if "the Commonwealth [can]

prove beyond a reasonable doubt that the defendant voluntarily,

knowingly, and intelligently waived these rights before making

the statement." Santos, 463 Mass. at 283.

Here, the defendant was not in custody and therefore had no

right of silence to invoke. See Simon, 456 Mass. at 287.

However, assuming, arguendo, that the interviews were custodial,

the defendant did not clearly invoke his right to silence after

waiving his Miranda rights at each interview.3 The defendant's

statements, such as "I can't take any more of this" and "I want

to go home and I want to go to bed," did not indicate his

unwillingness to continue the interrogation. Indeed, after

these ambiguous statements, the defendant continued to talk

without further prompting. A reasonable police officer in the

circumstances would not have understood these statements to be

an invocation of the right to silence. Howard, 469 Mass. at

3
Citing Commonwealth v. Clarke, 461 Mass. 336, 337 (2012),
the defendant erroneously claims that his invocation did not
need to be unambiguous: "[W]e hold that, in the prewaiver
context, art. 12 does not require a suspect to invoke his right
to remain silent with the utmost clarity, as required under
Federal law. See Berghuis v. Thompkins, [560 U.S. 370, 386]
(2010)." Because the defendant waived his right to silence at
the start of each interview, the prewaiver inquiry of Clarke is
inapplicable.
 16

731. Contrast Commonwealth v. Santana, 465 Mass. 270, 282

(2013) ("[I] couldn't say any more" invoked right to silence

after Miranda waiver); Santos, 463 Mass. at 285 ("I'm not going

on with this conversation" invoked right to silence postwaiver).

There was no error in the judge's determination that the

defendant did not invoke his right to silence.

c. Right to counsel. "Once the defendant invokes his

right to an attorney, the police must stop questioning until an

attorney is present." Commonwealth v. Jones, 439 Mass. 249, 258

(2003). Nonetheless, "if a suspect makes a reference to an

attorney that is ambiguous or equivocal in that a reasonable

officer in light of the circumstances would have understood only

that the suspect might be invoking a right to counsel, our

precedents do not require the cessation of questioning."

Commonwealth v. Judge, 420 Mass. 433, 450 (1995), quoting Davis

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

Here, the defendant equivocally stated, "I am going to have

to get a lawyer. Everything is going to come down on me

. . . ." We agree with the motion judge that the defendant did

not request an attorney, rather, he expressed a future need for

a lawyer if he faced charges for the victim's death. Compare

Jones, 439 Mass. at 258-259 ("[I'm] going to need a lawyer

sometime" not invocation of right to counsel). The defendant's

anticipatory statement is in marked contrast to the invocations
 17

that we deemed effective in Santos, 463 Mass. at 282 ("I'm not

going on with this conversation. I want a lawyer"), and

Commonwealth v. Contos, 435 Mass. 19, 28 (2001) ("I think we're

going to stop, and I think I'm going to get a lawyer. If this

is the way this is going, you're either accusing me or charging

me") There was no error in the judge's determination that the

defendant did not invoke his right to counsel. Assuming for the

sake of argument that the defendant was in custody, the motion

to suppress was properly denied where the defendant failed to

invoke his right to silence and his right to counsel.

3. Motion for mistrial. The defendant argues that the

trial judge erred in denying his motion for a mistrial after the

jury were repeatedly exposed to inadmissible evidence resulting

in prejudice that was not cured by the judge's instructions.

The defendant's claim stems from what appear to be unintentional

mistakes4 in the presentation of the audio-visual recording of

the defendant's interviews at the police station to the jury.

We address separately the claimed errors.

a. First error. In response to a pretrial motion in

limine filed by the defendant, the judge ordered the redaction

of a portion of the defendant's statement during which he

4
The judge indicated at sidebar that the prosecutor's
publication of unredacted video was unanticipated and the result
of human error.
 18

admitted that on one occasion, he had pushed the victim's twin

brother after the twin dropped the defendant's infant daughter.

More specifically, the following statements were to be redacted

before the video of the interview was played for the jury:

"I never touch her kids. And, like, the other
day, [the twin] dropped . . . my little daughter,
[eleven] months. She was actually [ten, eleven]
months at that time. And he dropped her. He picked
her up like this [indicating], to get her out of the
way and threw her down on the ground. And I got mad,
and I pushed [the twin] on the ground. Yes, I did.
That was the only time that I've ever laid hands on
[the twin] or [the victim], ever. And that was the
only reason why, it was uncontrollable that he threw
my [ten] month year-old baby, literally lifted her up
like this [indicating] and throwed [sic] her on the
ground just so he could get through the doorway, which
I thought that was wrong, and I was hurt by that,
because the baby was screaming. And I got up off the
bed, and I pushed him. That was a while back, but he
didn't get any hurt, he didn't get hurt or anything.
He gave his mother a fuss, and he didn't like me.
Obviously, he wouldn't like me because I pushed him.
But he didn't see the wrong in throwing the baby like
that. That was wrong for me to push him, you're
absolutely right, but he didn't get hurt or anything
like that. It wasn't out to hurt him. It was just
out to let him know not to throw babies, [ten] month
year-old babies."
The redaction did not occur and the excluded statements were

played for the jury. The defendant objected and moved for a

mistrial. The judge denied the defendant's motion but gave a

curative instruction to disregard the statement regarding

interactions between the defendant and the twin.5

5
The judge's full instruction was:
 19

b. Second error. The next portion of the recorded

statement that the defendant claims was erroneously shown to the

jury ended with the police informing the defendant that the

victim had died. The recording then immediately looped back to

the beginning of the recorded interview showing the defendant

laughing with the police. The defendant objected and reiterated

prior concerns regarding prejudicial editing. The prosecution

conceded that there was an agreement between the parties to

prevent this loop back. The judge gave another curative

instruction, explaining that the automatic restart of the

recording created a false sequence that should be disregarded.

The defendant's renewed request for a mistrial was denied.

c. Third error. Soon thereafter, the jury viewed another

segment of the interview that the judge had determined should be

redacted, wherein one of the detectives stated: "We talked to

[the twin]. Did you kick him?" The defendant again renewed his

request for a mistrial. The judge, however, denied the request

and refused to issue another curative instruction, determining

"Jurors, the segment that you just saw relating to any
contact between the defendant and [the twin] is to be
stricken from your minds. Just banish that from your
minds. Disregard it just like I tell you when a witness
says something and I exclude it. Just remove it. You do
it consciously, and I know you'll follow my instructions,
and that's my clear instruction."
 20

that the prejudice created from this single statement was de

minimis.

We review the denial of motion for a mistrial for an abuse

of discretion. Commonwealth v. Gallagher, 408 Mass. 510, 517

(1990). When a jury have been exposed to inadmissible evidence,

the judge may rely on a curative instruction to "correct any

error and to remedy any prejudice" (citation omitted).

Commonwealth v. Kilburn, 426 Mass. 31, 38 (1997), S.C., 438

Mass. 356 (2003). "As long as the judge's instructions are

prompt and the jury do not again hear the inadmissible evidence

. . . a mistrial is unnecessary." Commonwealth v. Garrey, 436

Mass. 422, 435 (2002).

Here, the defendant argues that his multiple requests for a

mistrial should have been granted because inadmissible evidence

was repeatedly presented to the jury and the resulting prejudice

was not curable with an instruction to disregard it. We

disagree. Although the defendant properly relies on the

expectation that the proponent of evidence bears the

responsibility to comply with a court order6 and that in this

case the Commonwealth should reap the consequences of its

failure to do so, we are not persuaded that the judge's curative

6
See, e.g., Firo v. State, 878 S.W.2d 254, 256 (Tx. Ct.
App. 1994) ("the party offering the evidence has the burden to
redact or sanitize a document . . . before [it] is properly
admissible").
 21

instructions were inadequate. In this case, the jury heard each

excluded statement only once. See Gallagher, 408 Mass. at 517-

518 (witness's solitary reference to defendant's incarceration

during ten-day trial "could not have tainted the jury's

verdict"). The judge then gave two separate instructions,

addressing the defendant's statement that he had pushed the twin

and then the improper "loop back." See Garrey, 436 Mass. at 435

(prompt instruction sufficiently remedied any prejudice). In

addition, jurors are presumed to have followed the judge's

instructions to disregard the evidence. See Commonwealth v.

Qualls, 440 Mass. 576, 584 (2003). There was no prejudice.

We also agree with the trial judge that the officer's

question whether the defendant kicked the twin was fleeting and

did not likely influence the jury as there was abundant

admissible evidence showing that the defendant regularly

ridiculed and kicked the victim. See Commonwealth v. Cunneen,

389 Mass. 216, 223-224 (1983) ("vague and fleeting comment [was]

not likely to influence, or even seize the attention of the

jury"). Regardless, "[t]he statement was not so inflammatory

that a denial of the defendant's motion for a mistrial was

inherently an abuse of discretion." Commonwealth v. Bryant, 447

Mass. 494, 503 (2006).

The defendant likens the impact of this bad character

evidence to an error in his first trial, when the jury were
 22

permitted to hear testimony that the defendant slapped the

victim's mother. Durand, 457 Mass. at 599-600. We recognize

that the cumulative effect of improper statements may warrant a

finding of prejudice. However, the challenged statements here

were sufficiently dissimilar that we do not perceive any

prejudice to the defendant.7

4. Hearsay testimony. The defendant argues that the trial

judge erred when he permitted Dr. Amy Goldberg to testify "based

upon studies that she did not perform and literature that she

did not author," because it constituted inadmissible hearsay.8

Specifically, he asserts that the literature forming the basis

of Dr. Goldberg's opinion was not independently admissible and

therefore her testimony should have been excluded. The

defendant's claim is unavailing. An expert is permitted to rely

on hearsay studies to form his or her opinion, but the expert

may not testify to the content of those studies during direct

7
The defendant misinterprets our analysis of this issue in
Commonwealth v. Durand, 457 Mass. 574, 599-600 (2010). He
claims that admission of the bad act evidence in his first trial
was reversible error, but we did not consider the prejudicial
effect of the error because we reversed on other grounds.
8
The trial judge conducted a voir dire of Dr. Amy Goldberg,
a pediatrician specializing in child abuse, and determined that
Dr. Goldberg was a qualified expert who could testify based on
her experience and review of relevant scientific literature
regarding childhood traumatic injury. He ordered Dr. Goldberg
to refrain from referencing her expertise in child abuse --
including use of her professional title -- out of concern that
the information would be too prejudicial.
 23

examination. Commonwealth v. McNickles, 434 Mass. 839, 857

(2001). "Only the defendant can open the door on cross-

examination to testimony regarding the basis for the expert's

opinion, which may invite the expert witness to testify to facts

or data that may be admissible . . . and that may be testimonial

in nature." Commonwealth v. Barbosa, 457 Mass. 773, 785 (2010),

cert. denied, 563 U.S. 990 (2011). This evidentiary rule "is

consistent with the right of confrontation." Id. On direct

examination, Dr. Goldberg testified that her opinion was based

on relevant scientific literature but she did not name specific

studies or discuss their factual findings. The defendant's

subsequent failure to cross-examine Dr. Goldberg regarding the

sources of her opinion did not transform her testimony into

inadmissible hearsay. Id. Dr. Goldberg's reliance on treatises

and literature not in evidence was proper opinion testimony and

did not violate the defendant's confrontation rights.

5. The prosecutor's closing argument. The defendant

claims that the prosecutor's closing remarks were highly

prejudicial and the judge erred when he declined to issue a

curative instruction or grant a mistrial. "Remarks made during

closing arguments are considered in context of the whole

argument, the evidence admitted at trial, and the judge's

instructions to the jury." Commonwealth v. Andrade, 468 Mass.

543, 552 (2014), quoting Commonwealth v. Whitman, 453 Mass. 331,
 24

343 (2009). Because the defendant objected to the argument at

trial, we review for prejudicial error. Commonwealth v.

Johnson, 463 Mass. 95, 112 (2012).

a. Victim fear. The prosecution began its closing, "For

most four year olds, the boogeyman is a figment of their

imagination. In this case, there is a boogeyman. There was a

boogeyman in the life of [the victim]. He is the defendant in

this case." Thereafter, the prosecutor repeatedly referred to

the victim's fear of the defendant and characterized the

victim's interactions with the defendant as "torture." The

defendant renewed his prior objection regarding the irrelevance

of victim fear in determining a defendant's culpability. He

complains that the prosecution's dramatization of the victim's

fear was unfairly prejudicial.

The prosecutor's comment was improper but not prejudicial

where, as here, the defendant stated during the police

interrogation that he never "touched [the mother's] kids" or hit

the victim. He further claimed that in the weeks leading up to

the incident, he had been getting along well with the boys and

that the victim was no longer afraid of him. When asked how

others would describe his relationship with the victim, he

replied, "good." Moreover, the defendant vigorously impeached

the mother, the roommate, and a daycare provider regarding the

allegedly strained relationship between the victim and the
 25

defendant. Thus, the prosecutor was entitled to argue that the

evidence contradicted the defendant's statements. Indeed, the

defendant admitted to police that the victim appeared afraid

that morning; that the victim did not normally urinate on the

defendant's leg; that the victim was shaking from nervousness in

the bathroom; and that the defendant regularly ridiculed the

victim. No curative instruction was warranted where the

defendant was aware of the victim's fear and likely to respond

to it.

b. Comment on the defendant's statement excluded as

involuntary. Later in the Commonwealth's closing, the

prosecutor argued that the defendant denied throwing a toy

rubber shark at the victim:

"And then you're going to be asked to evaluate
the credibility of the defendant on the one day that
he's now stuck with the kids, on the one day that
everything seems to be going wrong; and you're going
to be asked if he was truthful. And you'll recall in
the course of his statements . . . . He told the
police he never -- they asked him, 'Did you ever throw
anything at the boy when he was in the corner -- sorry
-- that day? Did you ever throw anything?' 'No.' We
know that's not true. He threw the shark, hit [the
victim] in the mouth. (Emphasis added.)
The defendant did not object to the statement or request a

curative instruction. Contrary to the prosecutor's suggestion,

the defendant had admitted to throwing the shark during the

second police interview on October 21, but the judge had

suppressed this statement on the ground that it was not
 26

voluntary in light of police promises of leniency. The

Commonwealth defends the prosecutor's comment, pointing out that

the judge's suppression order did not apply to the defendant's

statements during the first police interview on October 20, when

he denied throwing anything at the victim. That denial was

admitted in evidence as part of the audio-visual recording of

the October 20 interview. Although the prosecutor's comment did

not violate the letter of the judge's order, it undoubtedly

undermined the spirit of the ruling where it unfairly suggested

that the defendant withheld the information, and that this act

reflected consciousness of guilt. Although we are constrained

to conclude that this error was not prejudicial, we note our

concern with such unfair tactics that undercut the intended

effect of the judge's ruling.

6. Motion to dismiss. Citing United States v. Dinitz, 424

U.S. 600, 601 (1976), the defendant claims error in the denial

of his motion to dismiss the indictments on the ground that the

double jeopardy clause bars retrial where a prosecutor's bad

faith results in a reversal of the first conviction and the

defendant is subjected to a second trial. Specifically, the

defendant argues that the prosecutor's tactical decision in the

first trial to introduce testimony from a substitute medical

examiner that was later determined to be a violation of the

defendant's rights under the confrontation clause, Durand, 457
 27

Mass. at 587-588, 601, meets the bad faith test. We reject the

argument because the defendant has failed to demonstrate

prosecutorial misconduct warranting a dismissal on double

jeopardy grounds.9

We have recognized limited circumstances where

prosecutorial misconduct bars retrial: "if the Commonwealth

intended to goad the defendant into moving for a mistrial[;]

. . . if the 'governmental conduct resulted in such irremediable

harm that a fair trial of the complaint or indictment is no

longer possible'[;] . . . and where the prosecutor's conduct is

otherwise so egregious that dismissal is warranted to deter

similar future misconduct" (citations omitted). Commonwealth v.

Merry, 453 Mass. 653, 666 (2009). No such conduct occurred

here.

At the time of the first trial, Dr. Abraham Philip, the

medical examiner who performed the victim's autopsy, was the

plaintiff in a pending civil suit alleging wrongful termination

against the office of the chief medical examiner. Whether

9
The defendant's reliance on United States v. Dinitz, 424
U.S. 600, 611 (1976) (retrial barred when prosecutorial
misconduct is "undertaken to harass or prejudice" defendant), is
misplaced because Dinitz was long ago narrowed by the United
States Supreme Court. Oregon v. Kennedy, 456 U.S. 667, 679
(1982) (retrial resulting from prosecutorial misconduct
prohibited under Federal double jeopardy clause only where
prosecution committed said misconduct with intent to provoke
mistrial).
 28

because of the lawsuit or not, the Commonwealth chose not to

call Dr. Philip as its expert on the cause of the victim's

death. Instead, the Commonwealth introduced testimony from a

substitute medical expert, Dr. Mark Flomenbaum. Durand, 457

Mass. at 581-590. At that time we had not yet decided

Commonwealth v. Nardi, 452 Mass. 379, 391 (2008), in which we

held that the confrontation clause precludes on direct

examination the testimony of a substitute medical examiner as to

the factual findings in an autopsy report. Additionally, the

substitute medical examiner's testimony did not create

"irremediable harm" that would make it impossible for a

subsequent trial to be fair. Merry, 453 Mass. at 666, quoting

Commonwealth v. Murchison, 392 Mass. 273, 276 (1984). During

both trials, the medical examiners opined that the victim died

of blunt force trauma. Presenting Dr. Flomenbaum's opinion that

the trauma was from a "forceful squeeze" at the first trial,

instead of Dr. Philip's opinion that the trauma was from a punch

or a kick, was not so different as to create irremediable harm.

Moreover, the Commonwealth's use of Dr. Philip's testimony

during a trial that resulted from the defendant's own appeal

does not "amount to an overzealous attempt to obtain 'tactical

advantage' over the defendant." Marshall, 463 Mass. 529, 540

(2012), quoting Glawson v. Commonwealth (No. 1), 445 Mass. 1019,

1021 (2005), cert. denied, 547 U.S. 1118 (2006). We further
 29

note that the defendant had no right to compel the Commonwealth

to call Dr. Philip during the first trial. Durand, 457 Mass. at

585 ("to the extent that the defendant sought to require the

Commonwealth to call Dr. Philip as a trial witness because he

was the only witness who could offer an opinion as to the

victim's cause and manner of death, the defendant's motion and

objection were properly denied").

7. Jury instructions. The defendant argues that the judge

erred in declining to instruct the jury regarding the adequacy

of the police investigation, the so-called Bowden instruction,

because, the defendant claims, it was necessary to "balance the

equities" where the judge elected to instruct the jury on

consciousness of guilt.10 Commonwealth v. Bowden, 379 Mass. 472,

486 (1980). The judge declined the request but advised defense

counsel that he could "absolutely argue it" during closing.

We have consistently held that "a judge is not required to

instruct on the claimed inadequacy of a police investigation.

10
The defendant's claim is centered on testimony from a
forensic chemist asserting that, on the day of the victim's
murder, the defendant's hands tested positive for the presence
of blood. During cross-examination, defense counsel elicited
testimony that there had been no confirmatory testing to
determine whether the blood belonged to the victim or even
whether it was human. In the defendant's first appeal, we
concluded that the allowance of similar testimony was not error
because "the defendant was free to explore these issues during
cross-examination." Durand, 457 Mass. at 598, citing
Commonwealth v. Gonzalez, 443 Mass. 799, 810 (2005).
 30

'Bowden simply holds that a judge may not remove the issue from

the jury's consideration.'" Commonwealth v. Lao, 460 Mass. 12,

23 (2011), quoting Commonwealth v. Boateng, 438 Mass. 498, 507

(2003). There was no error where the defendant was free to

argue, and did argue, during closing that the police

investigation was inadequate. See Commonwealth v. Kaeppeler,

473 Mass. 396, 406 (2015).

8. Relief pursuant to G. L. c. 278, § 33E. Although we

conclude that the Commonwealth's closing argument contained an

improper reference to an inadmissible statement, that error

alone does not require a reduction in the defendant's verdict or

a new trial. We have examined the record pursuant to our duty

under G. L. c. 278, § 33E, and we discern no basis on which to

grant the defendant extraordinary relief.

Judgment affirmed.