Commonwealth v. Martinez

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SJC-11657

COMMONWEALTH vs. RAFAEL MARTINEZ.

Essex. September 9, 2016. - January 5, 2017.

Present: Gants, C.J., Botsford, Gaziano, Lowy, & Budd, JJ.

Homicide. Evidence, Videotape, Relevancy and materiality,
Inflammatory evidence, Consciousness of guilt. Practice,
Criminal, Capital case, Redaction, Voir dire, Opening
statement, Argument by prosecutor.

Indictment found and returned in the Superior Court
Department on June 29, 2011.

The case was tried before Timothy Q. Feeley, J.

Amy M. Belger for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.

GAZIANO, J. The victim, Timothy Walker, was shot while

seated and talking with two friends on the porch of his

grandmother's house in the Tower Hill section of Lawrence.

Despite two eyewitnesses, and surveillance video recordings of

the incident obtained from nearby businesses, police were unable
 2

to identify a suspect. Nine months after the victim's death, a

local television station featured the shooting in an "unsolved

crime" series news broadcast that included portions of the

surveillance footage showing the suspect, whose face was not

discernable. The defendant watched the news broadcast with his

girl friend's mother and told her that he had been the shooter.

At the defendant's trial, the Superior Court judge allowed the

admission in evidence, over the defendant's objection, of a

redacted version of the news broadcast. The jury convicted the

defendant of murder in the first degree on a theory of

deliberate premeditation.

On appeal, the defendant's principal argument is that the

news broadcast should not have been admitted in evidence, or,

alternatively, that it should have been more heavily redacted,

because much of it was irrelevant, inflammatory, and highly

prejudicial. The defendant also claims error in certain aspects

of the judge's conduct of the voir dire of the venire and two of

the judge's evidentiary rulings. Finally, the defendant

contends that several statements in the prosecutor's opening

statement and closing argument were improper.

We conclude that there was no abuse of discretion in the

judge's decision to allow admission of the news broadcast, and

no error requiring reversal in the defendant's other challenges.

Having carefully examined the record pursuant to our duty under
 3

G. L. c. 278, § 33E, we discern no reason to order a new trial

or to reduce the degree of guilt. We therefore affirm the

defendant's conviction.

1. Facts. We recite the facts the jury could have found,

reserving other facts for our discussion of specific issues. On

July 24, 2010, while the victim was sitting on the porch of his

grandmother's house with his cousin and a friend, a man

approached the porch, shot the victim in the head with a

shotgun, and then fled back the way he had come, shooting as he

ran.1 The shooter was wearing a dark baseball cap pulled low

over his face, and neither eyewitness was able to identify him,

although each gave a similar description of his height, build,

complexion, and clothing. The victim died of his injuries

several days later. In the months following the shooting,

police were unable to identify a suspect.

The shooter's movements immediately before and after the

shooting were captured by four security cameras located at

nearby business establishments. The edited footage constituted

an approximately four and one-half minute video recording, which

was admitted and played for the jury. This video recording

showed an automobile arrive in the vicinity of the crime and

stop for several minutes. During that time, the shooter got out

1
As the gunman approached the victim, he said, "Here, this
is for you, nigger."
 4

of the passenger's side of the vehicle, approached the victim,

fired a weapon, ran back toward the vehicle, and entered the

passenger's side, upon which the vehicle was driven away.

In the spring of 2011, the defendant was dating Tesseana

Wilson and stayed frequently at the home of her mother, Michelle

Wilson,2 up to five nights per week.3 Approximately nine months

after the shooting, on the evening of May 2, 2011, sometime

between 11 and 11:30 P.M., the defendant walked into the living

room where Michelle was watching television and asked her to

change the station to a particular channel. She did so. The

station was airing the first broadcast of a new unsolved crime

series; the program that evening was titled, "Who Killed Timothy

Walker?" Michelle recognized the name "Timothy Walker" as a

"distant cousin" of her children, whom she knew had been shot

the previous summer.

The defendant watched the broadcast with Michelle. While

they were watching, she looked at the defendant and said,

"That's you" or "Is it you?," while he said, "I killed him."

The defendant thereafter described his actions, narrating events

as they were shown on the surveillance footage. When Michelle

2
Because Tesseana Wilson and her mother, Michelle Wilson,
share a last name, we refer to them by their first names.
3
The defendant was living at the home of Dolores Regan.
Delores was the mother of the defendant's friend, Max Regan,
with whom he had attended high school and played football. To
avoid confusion, we refer to them as "Delores" and "Max."
 5

asked him why he was shooting as he ran from the scene, the

defendant said that he had been concerned that he would be shot

at or pursued. At another point in the broadcast, when the

victim's mother described being told of her son's death, the

defendant said that she was incorrect in stating that the bullet

had passed through the victim's head, because he had used a

hollow-point bullet. The defendant also described the actions

of the getaway vehicle's driver, and his own efforts to conceal

evidence of the crime.

Michelle told the defendant to tell Tesseana and then to

leave her house. The defendant spoke with Tesseana privately,

telling her that he had been the shooter, and Michelle then

drove him to a house in Lawrence where he had requested to be

taken. Shortly thereafter, in the early morning hours of May 3,

2011, Tesseana watched a rebroadcast of the news program and

recognized the shooter's walk and build as the defendant's.

Later that day, Michelle contacted police and told them of the

defendant's confession. Police also spoke with Tesseana, who

initially denied recognizing the shooter on the news broadcast.

She later said that she had recognized the defendant, but did

not want to believe it was him, and described her conversation

with the defendant.

Four days after the news broadcast aired, on Friday, May 6,

2011, police went to Dolores's house; Max was home and spoke
 6

briefly with them. Later that day, Max gave the defendant a

ride home and noticed that the defendant was holding a pair of

sneakers. When they arrived at the house, the defendant asked

Dolores for a plastic bag, which she gave him. Max later drove

the defendant to a bridal shower; en route, Max asked the

defendant why the police had been at the house looking for him.

The defendant explained that a friend of his from Lawrence had

shot a gun into the air and then had dropped it, and that the

defendant had picked it up; he said that the police probably

wanted to ask why his fingerprints were on the gun.

The next day, Saturday, when taking out the trash, Dolores

noticed the bag containing the sneakers in an otherwise empty

trash can. On Sunday, she contacted police and gave them the

sneakers. Max also identified them as those the defendant had

with him while in Max's vehicle on May 6.

2. Discussion. The defendant challenges the introduction

of the redacted recording of the news broadcast, the judge's

decision not to conduct a voir dire of the venire concerning the

news broadcast, the judge's evidentiary rulings with respect to

Max's testimony, and several of the prosecutor's remarks in his

opening statement and closing argument. We address each

argument in turn.

a. The news broadcast. The defendant argues that the

audio-video recording of the news broadcast should not have been
 7

admitted in its redacted form; he contends that it should have

been excluded, or more heavily redacted, on the ground that much

of the content was irrelevant, highly inflammatory, and unduly

prejudicial. Because the defendant objected to the introduction

of the recording, we review to determine whether any abuse of

discretion resulted in prejudicial error. See Commonwealth v.

Rosa, 468 Mass. 231, 239-242 (2014).

A judge has broad discretion in making evidentiary rulings.

Commonwealth v. Bell, 473 Mass. 131, 142 (2015), cert. denied,

136 S. Ct. 2467 (2016). In determining whether the judge erred

in allowing introduction of the redacted recording,4 we consider

whether the judge took "care to avoid exposing the jury

unnecessarily to . . . material that might inflame [their]

emotions and possibly deprive the defendant of an impartial

jury." Commonwealth v. Berry, 420 Mass. 95, 109 (1995). This

analysis requires us to review the redactions themselves, the

limiting instructions, and the probative value of the news

broadcast in light of its likely prejudicial effect. Bell,

supra at 142-143.

We conclude that there was no abuse of discretion in

allowing the introduction of the redacted recording, given its

4
"The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence." Mass. G. Evid. § 403 (2016).
 8

significant probative value, the redactions made, and the

judge's instructions before the recording was played for the

jury and during his final charge.

i. Redactions. The four-minute and twenty-second news

broadcast, asking for the public's assistance in locating a

killer, was narrated by a station news reporter. It contains

his introductory and closing comments, the surveillance video

footage of the shooter approaching and running from the scene of

the shooting, statements made during an interview by the

district attorney, statements from the victim's mother, and

photographs of the victim and his belongings.

The judge conducted several hearings during the first two

days of trial on the Commonwealth's motion in limine to

introduce the recording. After having viewed the recording

several times, the judge provided the parties with a document

dividing the news broadcast into twenty-one segments, setting

forth his ruling as to each. He ordered audio redaction in a

number of segments, and, in one section, both audio and video

redactions. The audio portion was muted approximately fifteen

times, for a total of two minutes and five seconds

(approximately forty-eight per cent of the recording) to prevent

the jury from hearing statements by the district attorney, some

of the narrator's comments concerning the victim and the crime,

and certain comments by the victim's mother. A ten-second
 9

portion of the video recording was dark, and the audio was

muted, to exclude a photograph of the victim's mother holding

her son's hand in the hospital.

The redacted recording of the news broadcast was played for

the jury during Michelle's testimony, immediately before she

testified about the defendant's confession. Before the

recording was played, the judge gave a limiting instruction on

the reasons for which the jury could consider the recording, the

nature of the redactions (both audio and visual), and the

reasons for the redactions (so that the recording the jury would

"hear and see is admissible under our rules of evidence").

ii. Probative value. The defendant argued in his

opposition to the Commonwealth's motion in limine to introduce

the audio-video recording of the news broadcast that the

recording included statements by police officers, "commentary"

from the district attorney, and "heartfelt" pleas from the

victim's family that "this crime must be solved," all of which

would be unduly prejudicial and highly "inflammatory." He also

argued that the witnesses would be able to provide relevant

context through their testimony, rendering the news broadcast

unnecessary. In addition, counsel argued that the quality of

the announcer's voice was itself inflammatory.5

5
The defendant argued at the hearing that the announcer has
a "voice like Gregory Peck, like the voice of God, on that
 10

To be admissible, evidence must be both relevant and

probative. See Commonwealth v. Carey, 463 Mass. 378, 386–390

(2012). While the audio-video recording of the news broadcast,

as redacted, well may have tended to arouse an emotional

response from the jury, that is not the extent of the question.

Even where relevant, evidence is not admissible if "its

probative value is substantially outweighed by the danger of

unfair prejudice" to the defendant. Id. at 387-388, quoting

Mass. G. Evid. § 403 (2012). The Commonwealth, however, is

"'entitled to present as full a picture as possible of the

events surrounding the incident itself,' as long as the

probative value of the evidence presented is not substantially

outweighed by any prejudice to the defendant" (quotations

omitted). Commonwealth v. Hernandez, 473 Mass. 379, 394 (2015).

See Commonwealth v. Robidoux, 450 Mass. 144, 158 (2007).

Here, the judge concluded that the audio-video recording

was relevant and probative to support Michelle's testimony about

the defendant's statements admitting to having been the shooter.

Shortly before the broadcast aired, the defendant asked Michelle

to turn to the channel on which it would air. The defendant

confessed to the shooting while he and Michelle watched the news

broadcast. During the broadcast, the defendant provided a

screen which is like being at a drive-in movie, it's just going
to be so prejudicial and so inflammatory beyond belief."
 11

detailed narrative of the events unfolding on the surveillance

video footage, described his actions after the surveillance

footage ended, and responded to Michelle's questions about his

reasons for having undertaken some of the actions depicted. He

then referenced the news broadcast in his confession to

Tesseana. Within a few hours, she saw a rebroadcast of the news

program and recognized the shooter's walk and build as the

defendant's. This evidence was central to a case in which there

was no physical evidence connecting the defendant to the

shooting and no apparent motive, and the defendant's confessions

to Michelle and Tesseana were at the heart of the Commonwealth's

case.6 Given this, we discern no abuse of discretion in the

judge's conclusion that the redacted recording of the news

broadcast was relevant and probative.

iii. Prejudicial effect. We turn to consider whether the

judge erred in concluding that the probative value of the news

broadcast was not substantially outweighed by its prejudicial

effect. "Relevant evidence is not rendered inadmissible by its

6
At the hearing on the motion in limine, the judge observed
that "[the news broadcast] really is kind of integral to the
development of the Commonwealth's case. You know, this has the
unique set of circumstances [in] that while this was being
televised live . . . the defendant is in a room with another
person; and there is a conversation about this broadcast that
includes, allegedly includes, admissions. . . . It's not just
throwing the broadcast up there. It's throwing it up there in
the context of an important conversation that occurred as a
result of and during the course of the broadcast."
 12

potential to arouse feelings of sympathy in a jury. The

evidence remains admissible if its probative value outweighs its

potential for sympathy." Commonwealth v. Mendes, 441 Mass. 459,

467 (2004). In that case, we concluded that there was no abuse

of discretion in the judge's decision to allow introduction of

evidence that the victim, the defendant's wife, had been

pregnant at the time of her death, because the evidence was not

offered solely to garner sympathy for the victim or to cast the

defendant in a bad light. Id. at 468. It was relevant to the

defendant's state of mind and his relationship with his wife,

which were relevant to establish his motive to kill her. Id.

See, e.g., Bell, 473 Mass. at 143-145 (no abuse of discretion in

allowance of Commonwealth's motion to introduce "graphic" and

"disturbing" photographs of victim receiving treatment for burn

injuries, even where photographs "had a tendency to arouse the

jury's emotions," because of their probative value on issue of

extreme cruelty or atrocity).

In this case, the audio-video recording of the news

broadcast was relevant to support Michelle's testimony about the

defendant's confession to her while watching it, and was

particularly probative given the absence of physical or

eyewitness evidence, and the apparent lack of any motive.7

7
The defendant argues that only the surveillance footage
portion of the news broadcast should have been admitted because,
 13

Because of the extensive redactions, the jury did not hear the

most inflammatory portions of the broadcast. The victim's

mother's remarks during the interview at her kitchen table,

potentially highly inflammatory, were all muted, with the

exception of her statement regarding the bullet penetrating her

son's skull. This statement corroborated Michelle's testimony

concerning the defendant's statement about the hollow-point

bullet used. Although the news broadcast contained family

photographs of the victim, they were of a type that we have

deemed admissible at a murder trial. See Commonwealth v.

Holliday, 450 Mass. 794, 816, cert. denied sub nom. Mooltrey v.

Massachusetts, 555 U.S. 947 (2008) ("Commonwealth may properly

tell the jury 'something of the person whose life [has] been

lost in order to humanize the proceedings'" [citation omitted]).

Moreover, during cross-examination and in closing argument,

the defendant relied on the recording of the news broadcast to

support his theory that Michelle fabricated the confession to

get the defendant out of the house and out of Tesseana's life.8

during their May 2, 2011, conversation, he and Michelle
principally discussed the contents of the surveillance footage.
Michelle testified, however, that the defendant also discussed
the comment by the victim's mother about the victim's head
wound. In addition, the broadcast, with its request for help in
identifying the shooter, was airing in its entirety when the
defendant decided to confess.
8
For example, in closing, defense counsel argued:
 14

The judge twice instructed the jury that they were not to

consider any of the recorded statements for their truth.

Immediately before the audio-video recording was played, the

judge instructed the jury:

"You may only consider the broadcast for a limited
purpose. You may not consider the statements that you hear
for the truth of the matter asserted in those statements.
You may only consider the statements you hear for the fact
that they were made and as the context to permit you to
understand certain testimony that you will then hear from
this witness."

He reminded them of this instruction during his final charge.9

He also instructed during his charge that the jury were not to

base their decision "on sympathy, anger, passion, prejudice or

pity for or against either party in this case."

"We presume, as we must, that a jury understand[] and

follow[] limiting instructions." Commonwealth v. Jackson, 384

Mass. 572, 579 (1981). See Commonwealth v. Stegemann, 68 Mass.

"Ladies and gentlemen, I respectfully suggest to you
that the only [way] to fairly evaluate and characterize
Michelle Wilson's testimony during this trial is that she
was evasive. She got caught in [lies], which leads to one
conclusion. She was not telling the truth. . . . And then
on May 2nd, when there is a [network] [n]ews broadcast, she
wants you to believe that all of a sudden, out of the blue,
he volunteers a confession. . . . Ladies and gentlemen,
it's the confession of all confessions. And, if it seems
too good to be true, it's because it is."
9
"As you will recall, I gave you an extensive limiting
instruction about the [news] broadcast, prohibiting the use of
that evidence for the truth of the matters asserted and limiting
the use of that evidence for the purpose of providing context
for other evidence that you heard from witnesses."
 15

App. Ct. 292, 306 n.25 (2007) (presuming juries obey

instructions "to base their verdicts solely on the evidence and

to exclude emotion or sympathy for either side from their

deliberations").

Further, the prosecutor did not seek to exploit the

emotional effect of the audio-video recording. His closing

remarks about the news broadcast were limited to its effect on

the defendant and the statements he made to Michelle while

watching it ("when that video aired and [the defendant] was out

there and he saw it, it came out. It just all came flooding

out"). See Holliday, 450 Mass. at 816 (prosecution did not

emphasize or exploit emotional testimony elicited from family

members of shooting victims).

In sum, while clearly prejudicial to the defendant, the

record does not support a conclusion that introduction of the

audio-video recording was unfairly prejudicial. In light of the

extensive redactions of the news broadcast, and the judge's

limiting instructions, and given its significant probative

value, the judge's decision to allow the jury to see and hear

the redacted recording was not "a clear error of judgment in

weighing the factors relevant to the decision, . . . such that

the decision falls outside the range of reasonable

alternatives." Commonwealth v. Chatman, 473 Mass. 840, 846
 16

(2016), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).

b. Voir dire. The defendant argues that the judge abused

his discretion by failing to question the members of the venire

regarding the prejudicial impact of seeing the news broadcast at

trial. On appeal, the defendant suggests that the judge, sua

sponte, should have asked potential jurors "whether viewing

media coverage of this exact case would affect their ability to

be fair and impartial." We conclude that the judge was not

required to make such an inquiry.

"The scope of voir dire rests in the sound discretion of

the judge . . . ." Commonwealth v. Lopes, 440 Mass. 731, 736

(2004). It is well established that "the requirement for

individual voir dire arises upon the defendant's request for

such inquiry; it is not automatic." Commonwealth v. DiRusso, 60

Mass. App. Ct. 235, 238 (2003). See Commonwealth v. Kater, 432

Mass. 404, 412-414 (2000), and cases cited. See, e.g.,

Commonwealth v. Reavis, 465 Mass. 875, 888-890 (2013), and cases

cited. Here, while the defendant did submit a request that the

judge ask nineteen specific questions "on an individual basis,"

he did not request that any questions be posed with regard to

the news broadcast.10

10
The judge inquired of individual members of the venire
whether the race of the defendant and the nature of the
 17

The defendant argues on appeal that the audio-video

recording was extraneous and that the judge therefore was

required to conduct voir dire with respect it. We do not agree.

Evidence that does not lie outside the record or that is "fully

relevant and probative" of an issue at trial is not extraneous.

Kater, 432 Mass. at 413-414, discussing G. L. c. 234, § 28.

Here, because the audio-video recording of the news broadcast

was introduced in evidence at trial (a determination that was

pending at the time of jury empanelment), and because it was

probative of the circumstances surrounding the defendant's

confession, it is not "extraneous" within the meaning of G. L.

c. 234, § 28.

That the judge had yet to rule on the admissibility of the

news broadcast at the time of empanelment is significant. In

Kater, 432 Mass. at 413, we concluded that there was no abuse of

discretion in a judge's decision not to conduct individual voir

dire regarding prior bad act evidence in part because, "if the

evidence were ultimately not admitted at trial, the questions

would have then contaminated the jury." See Commonwealth v.

Ramirez, 407 Mass. 553, 554-557 (1990).

Moreover, there is no suggestion that any juror saw the

news broadcast at any time other than in the court room. See

allegation would render them incapable of being fair and
impartial.
 18

Reavis, 465 Mass. at 890 ("The defendant has not indicated, nor

does the record suggest, that any of the jurors selected were

not fair and impartial"). Indeed, two members of the venire

responded affirmatively to the question regarding prior

knowledge of the case because they each recalled reading an

article in a local newspaper and one of them had a spouse who

owned a business in Lawrence. Although the potential jurors did

not remember any specifics about the case, and did not state

that their prior knowledge rendered them unable to be fair and

impartial, the judge ordered each of them excused. Accordingly,

there was no abuse of discretion in the judge's decision not to

conduct voir dire of the venire with respect to the news

broadcast.

c. Introduction of defendant's statement about handling a

firearm. The defendant contends that the judge committed

reversible error by allowing the jury to hear prejudicial

evidence about the defendant's handling of a firearm in a prior,

unrelated incident. In particular, the defendant objects to the

introduction of Max's testimony concerning the defendant's

statement that the police "probably want[ed] to talk to him why

his fingerprints were on" a gun that he had handled and that a

friend of his from Lawrence purportedly had fired. The judge

allowed this testimony to be introduced, over objection, on the

ground that it showed consciousness of guilt (i.e., that the
 19

defendant sought to deceive Max as to the reason for the police

visit to his house).

Out-of-court statements are not hearsay, and may be

admissible substantively when offered to show consciousness of

guilt or liability. See Commonwealth v. Chappell, 473 Mass.

191, 207 (2015) (consciousness of guilt evidence is "relevant to

an assessment of the defendant's mental state and whether he was

criminally responsible"); Mass. G. Evid. § 1110(a) (2016).

Evidence "susceptible of a finding" that a defendant "embarked

on a series of actions consciously designed to deflect attention

from himself" may indicate consciousness of guilt (citation

omitted). Commonwealth v. Vick, 454 Mass. 418, 424 (2009).

Evidence that a defendant provided false information also may be

admissible to show consciousness of guilt. See, e.g.,

Commonwealth v. Delaney, 442 Mass. 604, 613 (2004) (defendant's

lying to coworker to cover up involvement in incident showed

consciousness of guilt).

Because the defendant preserved the objection, we review

for prejudicial error. See Commonwealth v. Dargon, 457 Mass.

387, 399 (2010). We discern no error in the admission of this

consciousness of guilt evidence. The Commonwealth was entitled

to show the jury that the defendant sought to deceive his friend

regarding the nature of the police investigation. Further, even

if there were error in allowing the introduction of this
 20

testimony, any error would have had little, if any, effect on

the jury, given the defendant's other, far more explicit

statements of guilt. See Delaney, supra. In addition, in his

closing the prosecutor made no mention of the disputed

consciousness of guilt evidence. See id.

d. Prosecutor's opening statement. At the end of his

opening statement, the prosecutor said:

"Ladies and gentlemen, this crime went unsolved for
months. This crime went unsolved for months. Well,
judgment day is here. And, at the end of this case, I'd
suggest that you will find that on July 24th of 2010, the
defendant murdered Timothy Walker in cold blood."

The defendant immediately sought a mistrial. The judge denied

the motion. The defendant contends that this denial was error

because the prosecutor's use of the phrase "judgment day"

"suggested to the jury the [prosecutor's] long road to victory

was expected to end with the jury's guilty verdict."

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

of discretion. Commonwealth v. Lao, 460 Mass. 12, 19 (2011).

The trial judge is in the best position to assess any potential

prejudice and, where possible, to tailor an appropriate remedy

short of declaring a mistrial. See Commonwealth v. Amran, 471

Mass. 354, 360 (2016). "[T]he burden of demonstrating an abuse

of discretion is a heavy one." Commonwealth v. Medeiros, 395

Mass. 336, 351 (1985).
 21

In opening statements and closing arguments, prosecutors

may not "play . . . on the jury's sympathy or emotions, or

comment on the consequences of a verdict" (footnote omitted).

Commonwealth v. Kozec, 399 Mass. 514, 516–517 (1987). "It is

improper for a prosecutor to equate a guilty verdict with

justice." Commonwealth v. Francis, 450 Mass. 132, 140 (2007).

See Commonwealth v. Degro, 432 Mass. 319, 328–329 (2000)

(prosecutor's statement to jury to "do your job" and,

implicitly, to find defendant guilty was not permissible

argument).

In framing the defendant's trial as his "judgment day," the

prosecutor improperly invoked a biblical reference to a day of

reckoning and created the impression that it was the jury's duty

to bring closure to a long-unsolved killing by rendering a

guilty verdict. This was improper and impermissible. We

conclude, however, that the judge did not abuse his discretion

in denying the defendant's motion for a mistrial in light of his

repeated instructions to the jury that opening statements and

closing arguments are not evidence. See Commonwealth v. Thomas,

429 Mass. 146, 158 (1999).

e. Prosecutor's closing argument. The defendant contends

that certain unobjected-to statements in the prosecutor's

closing argument created a substantial likelihood of a

miscarriage of justice. In particular, he maintains that the
 22

prosecutor improperly vouched for Michelle's credibility, and

presented three arguments that were not supported by the

evidence: that the defendant led a "secret life"; that he did

not want Tesseana to meet his friends; and that Max recognized

the defendant when police showed him surveillance footage.

Because the defendant did not object at trial, we consider

whether any of the challenged statements was improper and, if

so, whether it created a substantial likelihood of a miscarriage

of justice. See Commonwealth v. Penn, 472 Mass. 610, 626-627

(2015), cert. denied, 136 S. Ct. 1656 (2016). We review the

statements in the context of the entire closing, the jury

instructions, and the evidence introduced at trial. See

Commonwealth v. Costa, 414 Mass. 618, 628 (1993).

i. Improper vouching. The defendant argues that certain

of the prosecutor's statements constituted improper vouching for

the credibility of a witness:

"You have to believe Michelle is one of the most evil
people on this planet to think that she's going to set this
guy up for a murder she knew he didn't commit just so he
wouldn't see her daughter anymore. That's what defense
counsel wants you to believe. That is almost wors[e] than
shooting [the victim] yourself, to set this guy up for a
murder he didn't commit. For what good reason? For no
good reason, no good reason. But they talked. And she
asked questions and he let it out. That is the reality.
That's what happened. It's not pretty but it's true.

"And she told you on the stand she was conflicted
about what to do, too. And where did we hear that before?
We heard it just by our last witness, Dolores, when she
found those sneakers. She was conflicted. She didn't know
 23

what to do. It's [the defendant]. And she eventually
called the police.

"And so when Michelle sat in front of the Lawrence
[p]olice [s]tation, not knowing what to do and eventually
not going in, going home and then going to the police the
next day, that just made sense to her. And who can judge
that? What do you do? She ended up doing the right
thing." (Emphases supplied.)

Prosecutors may "argue forcefully for the defendant's

conviction." Commonwealth v. Wilson, 427 Mass. 336, 350 (1998).

The jury are presumed to understand that a prosecutor is an

advocate, and statements that are "[e]nthusiastic rhetoric,

strong advocacy, and excusable hyperbole" will not require

reversal. Id. at 351. Prosecutors may not, however, appeal to

the jury's sympathy, argue facts not in evidence, or give their

own opinion of the evidence or the credibility of a witness.

See Commonwealth v. Sanders, 451 Mass. 290, 296-297 (2008). A

prosecutor engages in improper vouching if he or she "expresses

a personal belief in the credibility of a witness, or indicates

that he or she has knowledge independent of the evidence before

the jury." Wilson, supra at 352.

The prosecutor's statements here, while they could have

been better phrased, do not rise to the level of improper

vouching. A prosecutor properly may comment on and urge the

jury to draw inferences from the trial evidence, Commonwealth v.

Chavis, 415 Mass. 703, 713 (1993), and may state logical reasons

based on inferences from the evidence why a witness's testimony
 24

should be believed. Commonwealth v. Rolon, 438 Mass. 808, 816

(2003). See Commonwealth v. Caillot, 454 Mass. 245, 259 (2009),

cert. denied, 559 U.S. 948 (2010) (no improper vouching because,

"in the context in which the remark was made, the jury would

have understood that the prosecutor intended to convey not that

he knew what [the witness] had stated was truthful, but that

[the witness'] testimony was credible because there was evidence

corroborating [the witnesses'] testimony").

In the context of the argument as a whole, the prosecutor's

remarks here did not express a personal belief in Michelle's

credibility. The statements were made in response to the

defendant's contention, during cross-examination and in closing

argument, that Michelle was not credible and that she fabricated

the defendant's confession in order to force an end to the

defendant's relationship with Tesseana. Defense counsel argued

in his closing that Michelle "was not telling the truth," and

that she had persuaded Tesseana to corroborate her story. The

prosecutor permissibly could respond to these challenges. See

Commonwealth v. Bol Choeurn, 446 Mass. 510, 522 (2006) (where

credibility is at issue, it is proper for counsel to argue from

evidence why witness should be believed).

ii. Arguing facts not in evidence. Prosecutors may not

"misstate the evidence or refer to facts not in evidence."

Kozec, 399 Mass. at 516–517. They may, however, argue
 25

"forcefully for a conviction based on the evidence and on

inferences that may reasonably be drawn from the evidence." Id.

at 516. "Remarks made during closing arguments are considered

in the context of the entire argument, and in light of the

judge's instructions to the jury and the evidence at trial."

Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231 (1992).

The defendant contends that the prosecutor's statements

that the defendant maintained a secret life in Lawrence and that

the defendant did not want to meet Tesseana's friends or allow

her to meet any of his friends were not supported by the

evidence. Evidence was introduced at trial, however, that the

defendant rarely saw Tesseana other than at her mother's house,

she rarely met any of his friends, she had not met any member of

his family, and his mother was unaware that he had a girl friend

in Lawrence. There was also evidence that Max, the defendant's

friend and housemate, whom he had known since high school, never

met Tesseana or any of the defendant's friends from Lawrence.

With respect to the defendant's challenge to the

prosecutor's statement that Max had "recognized" the defendant

on a recording of the video surveillance footage that police

played for him, Max's testimony supported this inference. Max,

the defendant's former football teammate, testified that, when

police showed him a copy of the surveillance footage, he said

that the shooter's walk was "similar" to the defendant's, his
 26

build was a "lot similar," and the way in which the man in the

footage ran was "very similar." The interviewing officer also

testified that Max's "head dropped" when he saw the recording,

and that he "put his hands up to his head." In his closing

argument, the prosecutor referred specifically to Max's

testimony that the shooter walked, ran, and was built "like" the

defendant. Thus, the prosecutor's statements were not

impermissible inferences, and it is unlikely that the jury would

have been misled by the use of the word "recognized."11

f. Review pursuant to G. L. c. 278, § 33E. We have

carefully reviewed the entire record pursuant to our duty under

G. L. c. 278, § 33E, and discern no reason to order a new trial

or to reduce the conviction to a lesser degree of guilt.

Judgment affirmed.

11
We have considered the arguments in the defendant's brief
filed pursuant to Commonwealth v. Moffett, 383 Mass. 201 (1981),
and conclude that they are unavailing.