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SJC-12198
COMMONWEALTH vs. PETER DECONINCK.
Suffolk. April 6, 2018. - August 10, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Kafker, JJ.
Homicide. Self-Defense. Evidence, Self-defense, Testimony
before grand jury, Declaration of deceased person, Hearsay,
Prior violent conduct, Bias. Practice, Criminal, Capital
case, Disqualification of judge, Instructions to jury,
Question by jury.
Indictment found and returned in the Superior Court
Department on November 20, 2013.
The case was tried before Linda E. Giles, J.
Amy M. Belger for the defendant.
Paul B. Linn, Assistant District Attorney (Masai-Maliek
King, Assistant District Attorney, also present) for the
Commonwealth.
GAZIANO, J. A Superior Court jury convicted the defendant
of murder in the first degree on a theory of extreme atrocity or
cruelty for the fatal stabbing of Ronald Russo on August 24,
2013. That evening, the defendant and the victim, who were
2
long-time friends, got into an argument and shoving match inside
a mobile home. Both had been consuming alcohol before the
shoving match. They then armed themselves with kitchen knives.
During the ensuing fight, the defendant stabbed or slashed the
victim sixty-nine times, while sustaining a stab wound to his
right leg.
At trial, the defendant claimed that he had stabbed the
victim in self-defense or, in the alternative, that the
Commonwealth's evidence, at best, supported a conviction of
voluntary manslaughter due to the excessive use of force in
self-defense, sudden combat, or heat of passion.
The defendant argues that a new trial is required for a
number of reasons. He contends first that he was deprived of
the right to present a defense, based on the judge's rulings on
the admissibility of an out-of-court statement to police made by
the only eyewitness to the altercation, a few hours after the
fight. The witness, a mutual friend of the defendant and the
victim, was unavailable to testify because he died unexpectedly
prior to trial. Over the Commonwealth's objection, the
defendant was permitted to introduce the witness's grand jury
testimony in evidence as prior recorded testimony. Defense
counsel's repeated efforts to introduce an audio-video recording
of the witness's statement to police, however, were denied on
the ground that the recording was hearsay evidence. The
3
defendant maintains, as he did strenuously at trial, that the
statement should have been played for the jury because it was
admissible under the narrow exception to the hearsay rule carved
out by this court in Commonwealth v. Drayton, 473 Mass. 23, 25,
40 (2015), S.C., 479 Mass. 479 (2018).
In addition, the defendant argues that he is entitled to a
new trial because the judge abused her discretion in excluding
so-called Adjutant evidence, including the unavailable witness's
recorded statement to police and other evidence of the victim's
violent conduct. See Commonwealth v. Adjutant, 443 Mass. 649,
664 (2005). The defendant contends that this evidence suggests
that the victim was the first aggressor in the knife fight. The
defendant claims further that his right to a fair trial was
violated by the judge's failure sua sponte to conduct a recusal
analysis, given that she had found his trial counsel in contempt
of court in an unrelated prior case, and that the judge
improperly instructed the jury in response to a question
regarding self-defense. The defendant also asks that we use our
extraordinary power under G. L. c. 278, § 33E, to reduce the
verdict. For the reasons that follow, we affirm the conviction
and decline to exercise our authority to grant relief under
G. L. c. 278, § 33E.
1. Facts. We recite the facts the jury could have found,
reserving some facts for later discussion of particular issues.
4
a. Commonwealth's case. In the summer of 2013, the victim
had been staying with John Fay at a trailer park located on
Revere Beach Parkway in Revere. Sometime during the day of
August 24, 2013, a neighbor encountered the victim and the
defendant in the driveway of Fay's trailer. The neighbor, who
had known both the victim and the defendant for years, went
inside the trailer with them and spoke with them briefly.
At around 8:15 P.M. that evening, the neighbor stopped by
Fay's trailer to ask the victim for help moving an appliance.
After calling out to see if anyone was there, he entered the
trailer and found that it was in complete disarray. He saw a
body on the kitchen floor and ran across the street to another
neighbor to telephone 911.
The responding police officers and emergency medical
technicians (EMTs) found the victim on the kitchen floor, lying
on his back in a pool of blood. There were extensive
bloodstains throughout the kitchen, and the table and several
chairs had been tipped over. The victim was holding a detached
blade from a chef-style knife in his right hand. Officers found
a bloodstained handle belonging to the chef-style knife, and a
5
bloodstained kitchen knife with a slightly bent blade, on the
kitchen counter.1
The victim died as a result of multiple sharp force
injuries. Of the sixty-nine stab wounds, there were nineteen on
his chest and stomach, twenty-six on his back, and fifteen on
his hands. Most of the wounds were superficial. One deep stab
wound in the victim's chest, and two deep stab wounds to his
back, pierced internal organs; each independently would have
been fatal.
Sometime around 8 P.M., a resident of the trailer park had
been walking home along Revere Beach Parkway. He a saw
shirtless white male, covered in blood "from head to toe"
approaching from the opposite direction. When he reached the
trailer park, he told one of the officers who had responded to
the crime scene what he had seen. As a result, officers headed
to Revere Beach Parkway in search of the suspect.
A Revere police officer located the defendant at the closed
Massachusetts Bay Transportation Authority Beachmont station.
1 Subsequent deoxyribonucleic acid (DNA) testing of a
bloodstain from the intact knife showed that the victim's blood
matched the major male profile; the minor DNA profile was
inconclusive. The bloodstain on the knife handle contained a
mixture of DNA that matched the defendant's DNA and the victim's
DNA. The victim's DNA matched the major DNA profile from the
bloodstain on the tip of the knife blade found in the victim's
hand; the defendant's DNA did not match the major male profile
on the tip of the blade, and the minor DNA profile was
inconclusive.
6
The defendant was unsteady on his feet and staggering, yanking
on the station doors and biting the lock. After disregarding
multiple orders to lie on the ground, and after staring for more
than thirty seconds at the officer, who had drawn his weapon and
was pointing it at the defendant, the defendant ultimately
complied. The officer saw that the defendant was bleeding from
an injury to his lower right leg. EMTs responded to the scene
to treat the defendant. During this time, the defendant was
combative, screaming, yelling, and threatening to kill the
officers and EMTs.
The defendant was transported to a hospital for further
treatment.2 At around 10 P.M., a State police detective entered
the defendant's hospital room. Upon seeing the detective, the
defendant said, "I don't remember where I was." The defendant
then declined to be interviewed, and the detective left the
room. The defendant later called for the detective to come
back. While the detective was attempting to read the defendant
the Miranda rights, the defendant interrupted and said that the
victim had stabbed him first in the leg. The defendant later
called the detective a "moron," and requested to be taken to
court because "it was self-defense." In a subsequent statement
2 The defendant's medical records indicate that he was
treated for a wound on the back of his right leg that appeared
to look more like a "stab injury." He also had abrasions on his
left leg, face, hands, and fingers.
7
to police, the defendant said that he had been at his friend
"Johnny Fay's" house, he had not killed anyone, and he had been
shot or stabbed in the back of his leg.
At trial, the Commonwealth played for the jury thirty-nine
short "snippets" from twenty-four recorded telephone calls made
by the defendant from the Suffolk County jail approximately one
month after his arrest.3 In these telephone conversations, the
defendant said that he stabbed the victim in self-defense, he
had been stabbed multiple times by the victim, he had not
intended to kill the victim, and he had been impaired by
Klonopin or Xanax. At other points, the defendant characterized
himself as a "stone cold killer" and reported that he had
"knocked [the victim] out, [taken] the knife, and . . . kept
sticking till [the victim] stopped moving."
b. Defendant's case. The only percipient witness, John
Fay, died unexpectedly prior to trial. In support of his theory
of self-defense, and that the victim had been the first
3 The Commonwealth introduced two compact discs (CDs)
containing 174 recorded telephone calls from the Suffolk County
jail, between August 27, 2013, and October 18, 2013, but played
only certain small portions for the jury. The judge initially
allowed the recordings of the calls to be introduced in their
entirety and to be available for the jury to play during
deliberations. She later ordered portions of the recordings
redacted as not relevant. Ultimately, toward the end of the
trial, the prosecutor and defense counsel agreed to the
admission of certain portions of specific calls. The two CDS
were withdrawn, and the jury were given a recording of only
those calls.
8
aggressor, the defendant introduced Fay's grand jury testimony
as prior recorded testimony. A transcript of Fay's grand jury
testimony was read into the record; trial counsel read the
prosecutor's questions and counsel's investigator read Fay's
responses.
Fay's testimony is summarized as follows. On the morning
of August 24, 2013, the victim went to Revere Beach, where he
encountered the defendant, who was one of his long-time friends.
The victim invited the defendant and the defendant's brother
back to Fay's trailer. While Fay was in the kitchen cooking,
the others were talking and drinking vodka. The victim and the
defendant also sniffed cocaine, and the defendant took some
prescription pills.4 Other friends stopped by, and the victim
instigated a shoving match with one of the guests.
By 6 P.M., the other guests had left and only the defendant
and the victim remained in the trailer with Fay. The others
decided to leave because "[the victim] was being disruptive,
pounding on the table. He was drunk and . . . it wasn't a good
scene . . . ." The victim pushed Fay into the stove so hard
that a pot was almost knocked over. The defendant, who had been
sitting at the kitchen table, stood up and told the victim to
leave Fay alone and to stop causing trouble. This resulted in
4 When the defendant was arrested, police seized a bottle of
Xanax pills from his pants pocket.
9
several arguments and shoving matches between the victim and the
defendant. The quarrel became more heated when the defendant
mentioned "an old prison beef." They also quarreled because the
defendant said the victim had stolen prescription pills from him
earlier that day. Fay separated the victim and the defendant
three or four times.
While Fay was in the bathroom, he heard the two men
continuing to argue about the allegedly stolen pills. From the
hallway, Fay saw the two seated at opposite ends of the kitchen
table. The defendant jumped up from his chair, lifting the
table off the floor in doing so. He went around the table
toward the victim. The victim jumped up to face the defendant.
According to Fay, the defendant and the victim each took a knife
from the table. Fay did not actually see either man reach for a
knife, and could not tell who was the first to arm himself.
"[I]t just happened so quick. I just saw two people with
knives. I don't know how or what they grabbed."
The victim and the defendant moved to the side of the
table. Fay saw them "stabbing each other." He did not see
whether the victim or the defendant was the first to swing a
knife or stab the other. "I don't know who struck who or
whatever. They were wrestling back and forth, and then I saw
the knives, and then I seen each other sticking. I don't know
who struck who first." Fay described the victim as "fighting
10
for his life" against a much larger and more hostile opponent.5
The victim and the defendant swung their knives at each other
"back and forth." The defendant got the better of the victim,
and connected at least three to five times. The victim
collapsed on the kitchen floor, and the defendant fled the
trailer. Fay did not telephone for help. He left to go to a
neighborhood bar.6
The defendant called two expert witnesses. The first, a
chemist, extrapolated from the defendant's blood alcohol content
(BAC) of 0.11 when he was admitted to the hospital, and opined
that the defendant had had a BAC of approximately 0.15 to 0.16
earlier in the evening. The expert also testified to the
effects of Xanax and cocaine on cognitive functioning. The
second expert, a forensic neuropsychologist, testified that the
defendant suffered from impaired judgment and impulse control
due to past traumatic brain injuries, depression, and substance
abuse.
The judge instructed the jury on self-defense, murder in
the first degree on a theory of extreme atrocity or cruelty,
5 According to Fay, the victim was six feet tall and weighed
approximately 220 pounds, and the defendant was six foot three
or four inches tall and weighed approximately 280 pounds.
6 Some of Fay's testimony to the grand jury was consistent
with what he had told police in the audio-video recorded
statement a few hours after the incident; other portions
differed or were more detailed.
11
murder in the second degree, and voluntary manslaughter on
theories of excessive force in self-defense, heat of passion,
and sudden combat. The jury convicted the defendant of murder
in the first degree.
2. Discussion. In this direct appeal, the defendant
contends that Fay's recorded statement to police was admissible
under an exception to the hearsay rule discussed in Drayton,
473 Mass. at 25, 40, because it bore indicia of reliability, was
contemporaneous with the events, and was critical to his
defense; the defendant argues that the denial of his motion to
introduce this evidence deprived him of the right to present a
defense and requires a new trial. Second, the defendant asserts
that the judge abused her discretion in excluding other Adjutant
evidence concerning prior acts of the victim. Third, the
defendant contends that the judge should have considered
recusing herself, sua sponte, after considering her order of
civil contempt against his trial counsel in an unrelated case
prior to his trial. The defendant argues that the judge's bias
toward his counsel, and her decision not to even consider
recusing herself, deprived him of the right to a trial by a fair
and impartial tribunal. Fourth, the defendant argues that the
judge's answer to a jury question concerning self-defense
foreclosed the possibility of a lesser verdict of voluntary
manslaughter. In addition, the defendant asks us to exercise
12
our extraordinary authority to overturn the conviction and order
a new trial, or to reduce the verdict.
a. Admissibility of Fay's videotaped statement. In
Drayton, 473 Mass. at 33, we considered whether to adopt a
narrow, constitutionally based exception to the hearsay rule.
In the "unusual circumstances" presented in that case, the
defendant sought to admit an affidavit of a deceased witness as
newly discovered evidence in support of a motion for a new
trial. Id. at 25, 27-28. Applying the dying declaration
exception to the hearsay rule, the judge had excluded the
affidavit and denied the motion for new trial. Id. at 32.
We concluded that the affidavit "plainly would have been
critical to the defense" because it directly contradicted the
sole eyewitness's testimony implicating the defendant in the
fatal shooting. Id. at 36. Recognizing a constitutionally
based hearsay exception "rooted in the United States Supreme
Court's decision in Chambers v. Mississippi," 410 U.S. 284, 302
(1973), we held that the deceased witness's affidavit could be
admissible at postconviction proceedings, notwithstanding that
it did not fall into any traditional category of a hearsay
exception. Drayton, 473 Mass. at 33, 36. See Chambers, supra
("hearsay rule may not be applied mechanistically to defeat the
ends of justice"). Accordingly, we remanded the case to the
Superior Court to allow the defendant to establish that the
13
deceased witness's affidavit was sufficiently reliable.
Drayton, supra at 36, 40. Notwithstanding this ruling, the
opinion ended "by emphasizing the narrowness of the
constitutional principle that governs this case and necessitates
our remand. . . . In the vast majority of cases, the
established hearsay exceptions will continue to govern the
admissibility of hearsay evidence at most criminal trials, with
this constitutional hearsay exception operating only in the
rarest of cases, where otherwise inadmissible evidence is both
truly critical to the defendant's case and bears persuasive
guarantees of trustworthiness." Id. at 40.
Here, the judge excluded Fay's recorded statement to police
on hearsay grounds. She found that the audio-video recorded
statement was inadmissible hearsay. She also noted that, as
compared to Fay's grand jury testimony, which she allowed to be
introduced at trial as prior recorded testimony because Fay was
unavailable, the recorded statement did not materially advance
the defendant's claim of self-defense. In the recorded
statement, Fay said that, after he saw the defendant and the
victim facing each other holdings knives, he left and went to a
bar.
The defendant concedes that Fay's grand jury testimony,
which was read to the jury, "does overlap with much of the Fay
[s]tatement." He contends, however, that there are crucial
14
differences between the recorded statement and the grand jury
testimony. "[W]hat the jury would have gotten from the Fay
[s]tatement that it did not get from the grand jury testimony
[introduced at trial] was the fact that [the victim] was an
instigator of violence who was provoking both [the defendant]
and Fay to the point where even Fay pushed [the victim] and
slammed [the victim]."
We agree with the judge's conclusion that the statement did
not fit within the narrow hearsay exception set forth in
Drayton. Notably, the defendant did not establish that its
admission was critical to his case. By introducing Fay's grand
jury testimony, the defendant was able to demonstrate that the
victim had been intoxicated and belligerent. The jury heard
that the victim pushed one guest to the floor and that almost
all of the guests left the gathering because the victim had been
so disruptive and was banging on the table. After the others
left, the victim continued to pound on the kitchen table with
his fists, got into multiple heated arguments, and pushed his
friends.7
7 There are other differences in Fay's recorded statement as
compared to his grand jury testimony. For instance, in his
statement, Fay told police that he was so frustrated with the
victim that, "[I] finally . . . slammed him. I pushed him. I
said, 'Don't -- stop. Go sit down. You know, I'm trying to
cook. Go sit down." The victim, chastened, did so. In his
grand jury testimony, Fay did not mention that he "slammed" the
15
In addition, Fay's statement did not bear "persuasive
assurances of trustworthiness" (citation omitted). See Drayton,
473 Mass. at 36. Fay told the police that he left the trailer
as soon as he saw the victim and the defendant holding knives.
By contrast, Fay testified before the grand jury that he was
present during the knife fight and saw the victim collapse onto
the kitchen floor, upon which Fay left the trailer. Fay also
testified at the grand jury that he had lied to the police in
his initial statement. He explained that, at the time of the
recorded statement, "I was basically scared to death. I mean, I
didn't want to get hemmed up in something that I had nothing to
do with and had no control of. We're all friends, and it was
just a -- nutty situation. And at that point I was in shock,
and what I saw I never saw before in my life. And that was it.
victim, or that he ordered the victim to sit down. These facts,
and some other differences in Fay's description of the events,
were not material to the defendant's claim of self-defense.
The defendant makes much of the fact that the judge issued
her ruling based on a transcript of Fay's statement, without
viewing the audio-video recording. We have watched the
recording and conclude that the video portion of the interview
did not add any substantive evidence. The recording does show
that Fay spoke using many gestures, and demonstrated parts of
the altercation, such as the victim pounding on the table; Fay
also made pushing motions to indicate the victim pushing others.
Fay insisted that he left the trailer as soon as the victim and
the defendant armed themselves, and that he did not see the
knife fight. As such, Fay did not reenact the stabbing.
16
I just, I wasn't right in my mind at that point."8 See
Commonwealth v. Dame, 473 Mass. 524, 533 n.17, cert. denied, 137
S. Ct. 132 (2016) (rejecting defendant's claim that Drayton
exception applied where excluded statements were contradicted by
other evidence).
For these reasons, we conclude that the judge did not err
in excluding Fay's recorded statement from being introduced in
evidence.
b. Adjutant evidence. In Adjutant, 443 Mass. at 650, 664,
we modified our common law of evidence and decided that, in a
case involving a claim of self-defense where the identity of the
initial aggressor is in dispute, a defendant may introduce
evidence of specific prior acts of violence that had been
initiated by the victim. See Mass. G. Evid. § 404(a)(2)(B)
(2018). Departing from our prior case law, see Commonwealth v.
Fontes, 396 Mass. 733, 735-736 (1986), we held that this
evidence is admissible whether or not the victim's prior acts of
violence were known to the defendant. Adjutant, supra at 649-
650. The purpose of so-called Adjutant evidence "is to give the
Over the defendant's objection, the judge allowed the
8
Commonwealth to impeach Fay's grand jury testimony with portions
of the audio-video recording. Thus, the jury heard that, on a
prior occasion, Fay had told the police that he left the trailer
before the stabbing, and did not see a knife fight. This
evidence was admissible to impeach the credibility of a hearsay
declarant. See Commonwealth v. Mahar, 430 Mass. 643, 649
(2000); Mass. G. Evid. § 806 (2018).
17
jury a full picture of the altercation so as to make an informed
decision about the identity of the initial aggressor."
Commonwealth v. Pring-Wilson, 448 Mass. 718, 737 (2007). See
Commonwealth v. Morales, 464 Mass. 302, 307 (2013) (noting that
self-defense cases often involve "confusing and conflicting
evidence of what actually happened and a dispute about the
identity of the first aggressor").
Subsequently, we clarified that the term "first aggressor"
is not limited to the person who provokes or initiates a
nondeadly assault. See Commonwealth v. Chambers, 465 Mass. 520,
528-530 (2013). Adjutant evidence is relevant to the issue
which person initiated the hostilities, and also as to which
person escalated the potential for violence through the use or
threat of deadly force. See id. at 529-530. Where either fact
is at issue, a defendant may introduce Adjutant evidence to
assist the jury in deciding whether the Commonwealth has proved
that the defendant did not act in self-defense. Id. at 530.
A trial judge plays a critical role in evaluating proffered
Adjutant evidence and allowing the admission of "so much of that
evidence as is noncumulative and relevant to the defendant's
self-defense claim." Adjutant, 443 Mass. at 663. See Pring-
Wilson, 448 Mass. at 738 (admissibility of Adjutant evidence
left to sound discretion of trial judge). Accordingly, we do
not disturb a judge's finding on the admissibility of Adjutant
18
evidence unless the finding results from "a clear error of
judgment in weighing the factors relevant to the decision, . . .
such that the decision falls outside the range of reasonable
alternatives" (citation and quotation omitted). See L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Here, in support of his argument that he was forced to stab
the victim in self-defense, the defendant filed a motion in
limine seeking to admit four prior acts of violence committed by
the victim. The four specific acts were (1) the victim's 2009
admission to sufficient facts to charges of assault and battery;
(2) a 2010 violation of a restraining order; (3) the victim's
guilty plea to charges of assault and battery; and (4) a 2001
burglary conviction. In addition, the defendant moved to
introduce Fay's audio-video recorded statement also for this
second purpose, as Adjutant evidence. He argued that, "[d]uring
this interview just a few hours after the fatal stabbing, Fay
[told] the police that [the victim] was drunk on vodka, started
pounding the table with his fists, pushed Fay and repeatedly got
into a shoving match with the defendant right before the fatal
knife fight." The Commonwealth objected to the admission of the
proffered Adjutant evidence on the ground that certain of the
incidents were too remote, and others failed to establish that
the victim had been the first aggressor.
19
The judge allowed the defendant's motion to introduce
evidence of the victim's 2009 admission to sufficient facts to a
charge of assault and battery. In that case, as described in a
police report, the victim approached his former girl friend at
the restaurant where she worked and slapped her face with the
back of his hand. A few minutes later, the victim assaulted her
with a knife that he had grabbed from the restaurant kitchen,
and threatened to "snap" her neck.
Over the Commonwealth's objection, the judge ruled that the
defendant would be able to introduce a certified copy of the
admission to sufficient facts. The judge did not allow the
defendant to introduce the police report, reasoning that it was
inadmissible hearsay and that, in any event, the defendant had
the opportunity to introduce this evidence through the testimony
of the victim's former girl friend and the court records. When
defense counsel argued that calling the former girl friend would
be infeasible because she had been hostile and uncooperative
with counsel and his investigator, the judge commented, "Just
because she's uncooperative with you, doesn't mean you still
can't call her to the stand and put her under oath and ask her
about that incident." The judge denied the defendant's motion
as to the other proffered Adjutant evidence. She found that the
violation of the restraining order was not probative of the
victim's aggression and use of a deadly weapon. With respect to
20
Fay's recorded statement, the judge found that it did not
qualify as Adjutant evidence because it did not establish that
the victim had been the first to use deadly force.
At trial, the defendant decided to forgo introducing
Adjutant evidence. Defense counsel noted, "I don't feel that
the Adjutant is powerful with just the one witness, although the
[c]ourt disagrees." On appeal, the defendant contends that the
judge abused her discretion in her rulings on the admissibility
of the proffered Adjutant evidence. He argues that it was error
to exclude the audio-video recording of Fay's statement to
police because the statement showed that the victim initiated
the aggression "close in time to the introduction of deadly
force." The defendant argues also that the judge erred in
excluding the police report on hearsay grounds and in excluding
the victim's violation of the restraining order issued regarding
his former girl friend.9
9 The defendant also claims that the judge erred by
"threatening" to allow the Commonwealth to introduce Adjutant
rebuttal evidence. Prior to trial, the Commonwealth moved to
introduce evidence that, in 2005, the defendant had been the
first aggressor in a barroom brawl with an off-duty fire
fighter. See Commonwealth v. Morales, 464 Mass. 302, 310-311
(2013); Mass. G. Evid. § 404(a)(2)(B) (2018). The judge ruled
that if the defendant chose to introduce Adjutant evidence, she
would conduct a voir dire of the fire fighter to determine
whether the defendant had been the first aggressor in that
fight. Who had been the first aggressor in that incident was a
disputed issue at the trial in the case, because the
Commonwealth also had charged the fire fighter with a crime, and
21
We first consider the argument that the judge's exclusion
of the audio-video recording of Fay's statement to police
deprived the defendant of the right to introduce admissible
evidence that the victim had been the first aggressor. The
defendant maintains that the statement included "compelling
evidence on the question of who initiated the assault."
According to the defendant, this "compelling" evidence consisted
of the victim's intoxication, the victim acting aggressively by
pounding on the kitchen table and starting a fight with the
defendant, and the victim pushing Fay.
Contrary to the defendant's claim, however, he was in fact
able to, and did, present this evidence to the jury in the form
of Fay's testimony to the grand jury, which was read in evidence
in a question and answer form, as it had been given. Fay's
testimony, through the grand jury transcript, included his
statement that the victim had been drinking vodka and sniffing
cocaine.10 Fay described the victim as "drunk" and "disruptive."
the fire fighter admitted to sufficient facts. In making this
ruling, the judge noted that the defendant had changed his
position on whether he intended to introduce Adjutant evidence
at trial. She requested that defense counsel discuss with the
defendant the strategic choice of going forward with the
Adjutant evidence and consider the possibility of rebuttal
evidence if he chose to do so. This was not a "threat."
10This testimony was corroborated by the medical evidence.
The medical examiner testified that the victim's blood alcohol
22
Fay testified that that the victim, in an intoxicated state, had
pushed Fay and another guest without provocation. Fay also
testified that the victim had been continuously pounding the
kitchen table and that he had fought with the defendant. Fay
stated that he had been forced to separate the victim and the
defendant three or four times because the victim and the
defendant "were arguing back and forth, and they got into a few
pushing contests."11 Thus, there was no abuse of discretion in
the judge's decision not to allow the introduction of the audio-
video recording of Fay's earlier statement, which the judge
determined to be hearsay.
We turn to the police report in the 2009 case of assault
and battery, in which the victim admitted to sufficient facts.
The judge excluded the police report as inadmissible hearsay.
As stated, in Adjutant, 443 Mass. at 664, we concluded that, in
content was .10, and that the toxicology screen was positive for
cocaine.
11 During a hearing on the defendant's motion, trial counsel
agreed that Fay's grand jury testimony included the Adjutant
evidence contained in the audio-video recording of Fay's
statement to police.
The judge: "And I believe [the Adjutant evidence] has to
do with the portion of the recorded interview of Mr. Fay
dealing with the allegations that [the victim] was drunk,
started pounding on the table with his fist, pushed Mr.
Fay, and repeatedly got into a shoving match. It's my
understanding that that testimony is in Mr. Fay's grand
jury testimony. Is that correct . . . ?"
Defense counsel: "Yes."
23
a case involving a claim of self-defense, where the identity of
the first aggressor is disputed, a defendant may introduce
evidence of specific acts of violence by the victim to
demonstrate that the victim had been the first aggressor. The
decision did not, however, "alter the rule against the admission
of hearsay evidence." See Commonwealth v. Clemente, 452 Mass.
295, 306 & n.18 (2008), cert. denied, 555 U.S. 1181 (2009)
(police reports detailing specific incidents of violence were
inadmissible). "The case merely permitted the admission of
evidence that previously had been deemed irrelevant." Id. at
306 n.18.
We do not agree with the defendant's argument that Clemente
has been abrogated by the court's holding in Drayton. As
discussed, in that case we carved out a narrow exception for the
"rarest" of cases "where otherwise inadmissible evidence is both
truly critical to the defense's case and bears persuasive
guarantees of trustworthiness." Drayton, 473 Mass. at 40.
Here, by contrast, the police report was not critical to the
defense because the victim's former girl friend, although
apparently hostile to defense counsel, was available to testify
to the incident of assault and battery.
Finally, we discern no error in the judge's decision not to
allow introduction of the victim's violation of the restraining
order. In April, 2010, the victim repeatedly telephoned his
24
former girl friend in violation of a protective order not to
have any contact with her. During one of those telephone calls,
the victim asked his former girl friend, "What's going on -- Are
you going to [c]ourt? . . . Are you trying to lock me up?" In
another telephone call, the former girl friend asked the victim,
"What do you want from me?" The victim replied, "I want your
blood." Relying on Commonwealth v. Gaynor, 73 Mass. App. Ct.
71, 75-76 (2008), the judge found that the violation of the
restraining order did not qualify as an incident of specific
violence admissible to prove that the victim had been the first
aggressor. The violation of the restraining order was different
in nature from the knife fight. See id. The victim's threats
to his former girl friend were made by telephone, and there was
no indication that the victim followed through on those threats.
On this evidence, the judge did not abuse her discretion in
finding that the violation of the restraining order did not tend
to show that the victim was the initial aggressor in this
incident.
c. Recusal. Six years prior to this trial, defense
counsel was counsel for a different defendant in an unrelated
murder case before the same judge. The judge found defense
counsel in contempt of court. Although the defendant did not
seek the judge's recusal at trial, on appeal, the defendant
raises the question whether the judge's failure to consider
25
recusal sua sponte deprived him of the right to trial before an
impartial tribunal. Because the defendant did not ask the judge
to recuse herself prior to or during trial, we consider this
claim to determine whether there was a substantial likelihood of
a miscarriage of justice. See Commonwealth v. Wright, 411 Mass.
678, 681-682 (1992), S.C., 469 Mass. 447 (2014).
The issue requires us to examine the judge's prior decision
to hold defense counsel in civil contempt. During the course of
a 2010 trial, the judge found that counsel had behaved "like a
five year old" and "in the most unprofessional, unethical manner
that [she had] ever witnessed . . . in [her] nineteen years on
the bench." At the end of the trial, the judge conducted a
contempt hearing and found, among other things, that defense
counsel had made repeated, loud outbursts at sidebar; had acted
"absolutely out of control"; had displayed a lack of respect and
disdain for the court and the court's rulings; and had called
the prosecutor "jackass" in a voice loud enough to be heard by
the jury. The judge held counsel in contempt for violating
Mass. R. Prof. C. 3.4, 426 Mass. 1389 (1998) (fairness to
opposing party and counsel), and Mass. R. Prof. C. 3.5, 426
Mass. 1391 (1998) (decorum of tribunal). She commented that he
was a zealous advocate but had stepped far over the line;
accordingly, she fined him $500. The judge noted, however, that
26
counsel's actions had not been undertaken with a malicious
intent and, therefore, she would not report him to bar counsel.
The defendant maintains that, based on this prior finding,
the judge was required sua sponte to consider the issue of
recusal. Supreme Judicial Court Rule 3:09, Canon 2, Rule
2.11 (A) (2016), provides that a judge shall "disqualify himself
or herself in any proceeding in which the judge cannot be
impartial or the judge's impartiality might reasonably be
questioned." The duty to disqualify includes circumstances
where "[t]he judge has a personal bias or prejudice concerning a
party or a party's lawyer." Id. "The touchstone for the
principle of judicial impartiality are the words memorialized in
art. 29 of the Massachusetts Declaration of Rights, requiring
that judges be "as free, impartial and independent as the lot of
humanity will admit" (citation omitted). Commonwealth v.
Eddington, 71 Mass. App. Ct. 138, 142-143 (2008). See
Commonwealth v. Leventhal, 364 Mass. 718, 721 (1974) (rigid
adherence to principles embodied in art. 29 "is essential to the
maintenance of free institutions" [citation omitted]).
We have held that bias requiring removal "ordinarily
arise[s] from an extrajudicial source." Commonwealth v. Gogan,
389 Mass. 255, 259 (1983). A judicial ruling, standing alone,
"almost never constitute[s] a valid basis for a bias or
partiality motion." Liteky v. United States, 510 U.S. 540, 555
27
(1994). See Erickson v. Commonwealth, 462 Mass. 1006, 1007
(2012) (recusal not required where defendant was unable to
demonstrate that judge's rulings were "influenced by any
considerations other than the law" [citation omitted]).
"[J]udicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias or
partiality challenge. They may do so if they reveal an opinion
that derives from an extrajudicial source; and they will do so
if they reveal such a high degree of favoritism or antagonism as
to make fair judgment impossible." Liteky, supra. See LoCascio
v. United States, 473 F.3d 493, 495-496 (2d Cir.), cert. denied,
552 U.S. 1010 (2007) (trial judge's decision to hold defense
counsel in contempt and his fourteen-year history of denying
defendant's motions "do not raise even a suspicion of a 'deep-
seated and unequivocal antagonism that would render fair
judgment impossible'" [citation omitted]).
The defendant contends that the judge in his case
"displayed an improper judicial temperament and a clear bias
toward counsel in front of [the] jury." He maintains that she
exhibited bias against defense counsel by repeatedly criticizing
28
and scolding him, raising her voice,12 admonishing counsel in
front of the jury, and declining to provide counsel with the
opportunity to be heard.
There is no need to discuss every exchange between the
judge and defense counsel over the course of the defendant's
trial. It suffices to say that, on multiple occasions, defense
counsel raised issues that previously had been fully argued and
decided by the judge. The judge was required to admonish him to
stop interrupting her and to keep his voice down at sidebar
conferences so that he would not be overheard by the jury.
After one sidebar conference towards the end of the trial, the
judge commented that defense counsel was acting unprofessionally
and was "absolutely out of control."
Notwithstanding counsel's persistence in continuing this
type of behavior, the judge admonished him before the jury on a
single occasion. During cross-examination of a police officer,
defense counsel sought to inquire into the reason why the
12The defendant provided this court with the audio
recordings of the trial. Based upon our thorough review of
those recordings, including all of the instances in which the
defendant claims that the judge "yelled" at defense counsel, we
are not persuaded that the record evinces bias against defense
counsel. The few isolated exchanges, when viewed in context,
show that counsel repeatedly questioned and rejected the judge's
rulings, at many points talking over her. Although clearly
frustrated by defense counsel's conduct, the judge took great
care to explain the legal basis for her rulings and displayed
appropriate judicial demeanor while maintaining control of the
trial.
29
defendant was hostile toward members of the Revere fire
department. The judge sustained the prosecutor's objection to
this line of questioning. Ignoring the judge's ruling on the
objection, as well as the judge's request to see the parties at
sidebar, defense counsel twice repeated the prohibited question.
The judge instructed defense counsel in open court, "When there
is an objection, you stop. Please, you know better than that."
It is well established that "a trial judge is responsible
for controlling the trial, maintaining order in the courtroom,
and guarding against improper conduct of counsel." Commonwealth
v. Perez, 390 Mass. 308, 316 (1983). After carefully
considering the record, we discern no evidence of "deep-seated
favoritism or antagonism that would make fair judgment
impossible." See Liteky, 510 U.S. at 555; Erickson, 462 Mass.
at 1007. The judge remained as respectful as possible to
defense counsel while fulfilling her obligation to control the
trial and to maintain order in her court room. See Commonwealth
v. Imbert, 479 Mass. 575, 588 (2018) (judge sometimes required
to admonish counsel to maintain order).
Our conclusion is supported by the judge's careful
instructions to the jury that were intended to mitigate any
potential prejudice that may have resulted from the jury's
perception that the judge viewed defense counsel as having been
out of line. The judge twice instructed the jury to "applaud"
30
the lawyers for acting as "zealous advocates." She explained
further that the jury should not infer anything from her rulings
on objections or motions, or from her comments to the lawyers.
See Imbert, 479 Mass. at 588; Commonwealth v. Carter, 475 Mass.
512, 526 (2016). In sum, we discern no evidence of bias and no
reason that the judge should have, sua sponte, considered
recusing herself.
d. Jury question. The defendant argues that the judge
committed reversible error when she provided supplemental
instructions to the jury in response to a question concerning
self-defense. During deliberations, the jury posed the
following question:
"Dear Judge, If we find that the sole basis self-
defense is not available to the defendant is his use of
excessive force (reason #4 on pg. 20 of your instructions),
are we limited to a conviction of voluntary manslaughter
due to mitigating circumstances? Or, are First & Second
degree murder convictions still possible if we find that
the other elements of those crimes are satisfied by the
facts proven beyond a reasonable doubt?"13
Defense counsel requested that the judge instruct the jury that,
if they found that the defendant had used excessive force in
13 "[R]eason #4 on pg. 20 of [the judge's written]
instructions" refers to that section of the judge's written
final charge which listed the five ways in which the
Commonwealth could establish the absence of the proper use of
self-defense. See Model Jury Instructions on Homicide 20-21
(2013). See also Commonwealth v. Glacken, 451 Mass. 163, 166-
167 (2008). The fourth proposition stated: "4. The defendant
used more force than was reasonably necessary under all the
circumstances."
31
self-defense, they would be limited to a verdict of voluntary
manslaughter. The judge determined that the question called for
a broader explanation of self-defense, because the jury's note
conflated the defense of self-defense with the mitigating factor
of excessive use of force in self-defense. See Commonwealth v.
Santos, 454 Mass. 770, 780 (2009) (Gants, J., dissenting) ("The
defense of self-defense is related to, but separate and distinct
from, the mitigating factor of excessive use of force in self-
defense"). See also Commonwealth v. Allen, 474 Mass. 162, 172
(2016) ("the use of excessive force . . . does not cause the
defendant to lose the benefit of the defense entirely . . . but
instead may warrant a finding of manslaughter" [citation
omitted]).
Over the defendant's objection, the judge instructed:
"If you find that the Commonwealth has proved beyond a
reasonable doubt that the defendant used more force than
was reasonably necessary under the circumstances, then the
defense of self-defense is not available to the defendant,
and you may not acquit him on the basis of such a defense.
"You may convict the defendant of either first or
second degree murder if the Commonwealth has proven to you
beyond a reasonable doubt, in addition to all the other
elements of either first or second degree murder, that
there were no mitigating circumstances, including but not
limited to the excessive use of force in self-defense."
On appeal, the defendant acknowledges that the jury's
question was ambiguous. Nonetheless, the defendant asserts that
the proper answer to the jury's question should have been a
32
simple "no." That is, a conviction of murder is not possible if
the jury were to find that the defendant used excessive force in
self-defense. Relying on Commonwealth v. Tavares, 471 Mass. 430
(2015), the defendant contends that the effect of the
supplemental instructions was to obscure or eliminate the
possibility that he could be found guilty of voluntary
manslaughter.
Unlike the instructions in Tavares, however, the
instruction here accurately stated the law. The complete
defense of self-defense is not available to an individual who
uses excessive force. See Commonwealth v. Glacken, 451 Mass.
163, 167 (2008). It is the Commonwealth's burden to prove that
there were no mitigating circumstances that would reduce the
crime from murder to manslaughter. Commonwealth v. Torres, 420
Mass. 479, 485 (1995).
Moreover, in her final charge before the jury began
deliberations, the judge provided the jury with comprehensive
instructions concerning the possibility of a verdict of
voluntary manslaughter based on the excessive force in self-
defense. See Commonwealth v. Harris, 395 Mass. 296, 301 (1985)
(supplemental instructions considered in light of entire set of
instructions). The judge informed the jury that, "[i]f you do
not find the defendant guilty of murder in the first-degree or
murder in the second-degree, you shall consider whether the
33
Commonwealth has proved the defendant guilty beyond a reasonable
doubt of the lesser offense of voluntary manslaughter." In
concluding her instructions on the elements of murder, she
explained, "[I]n addition to these elements, the Commonwealth
must also prove that there were no mitigating circumstances." A
mitigating circumstance, the judge instructed, "is a
circumstance that reduces the seriousness of the offense in the
eyes of the law. A killing that would be murder in first or
second degree is reduced to the lesser offense of voluntary
manslaughter where the Commonwealth has failed to prove that
there were no mitigating circumstances." See Model Jury
Instructions on Homicide 36, 41-42 (2013).
The judge also properly instructed the jury on the lesser
included offense of voluntary manslaughter based on excessive
use of force in self-defense. She explained, "I have already
told you that to prove the defendant guilty of murder, the
Commonwealth is required to prove beyond a reasonable doubt that
the defendant did not act in the proper exercise of self-
defense. If the Commonwealth proves that the defendant did not
act [in] proper self-defense solely because the defendant used
more force than was reasonably necessary, then the Commonwealth
has not proved that the defendant committed the crime of murder.
But if the Commonwealth has proved the other required elements,
34
you shall find the defendant guilty of voluntary manslaughter."
See Model Jury Instructions on Homicide, supra at 71.
Because the supplemental instructions, viewed in light of
the entire charge, did not eliminate or reduce the possibility
of a verdict of voluntary manslaughter based on the excessive
use of force in self-defense, there was no error.
e. Relief pursuant to G. L. c. 278, § 33E. The defendant
asks the court to consider all of the claims of error, taken as
a whole, and to come to the conclusion that justice was not
done. In particular, the defendant argues that he is entitled
to relief under G. L. c. 278, § 33E, because he was tried by a
judge who failed to safeguard his rights, and was represented by
a lawyer who antagonized the judge.
As discussed, we do not agree with the defendant's
contention that he was deprived of a fair trial because of
animus between the judge and defense counsel, and therefore
decline to disturb the verdict on that basis.
Pursuant to our duty under G. L. c. 278, § 33E, we have
carefully examined the entire record to determine whether relief
should be granted on some other ground. We have considered the
evidence of self-defense and sudden combat that the defendant
emphasizes, including the senseless nature of the fight,
evidence of both the victim's and the defendant's levels of
intoxication, and the fact that the victim was armed with a
35
knife. We also have considered evidence that the defendant and
the victim had been arguing and fighting earlier, and that they
had been separated a number of times because of that. In
addition, we have considered evidence that, although Fay gave
inconsistent statements concerning what he saw of the fight, in
one of those statements, Fay said that he saw the smaller victim
"fighting for his life" and being overpowered by the larger and
stronger defendant.
Having carefully reviewed the record, we conclude that the
defendant is not entitled to relief under G. L. c. 278, § 33E.
The issue of self-defense, which was the central theory of
defense, was fully aired at trial. Furthermore, based upon the
nature, number, and severity of the victim's wounds, we discern
no reason to disturb the jury's verdict that the offense was
murder in the first degree, not murder in the second degree or
manslaughter, nor was it a killing in self-defense. The record
does not suggest a fight between two equally matched combatants
or that the defendant was overpowered and had no other means by
which to escape an onslaught from the victim. The victim, who
was approximately four inches shorter and sixty pounds lighter
than the defendant, sustained three stab wounds, any one of
which could have been fatal, in addition to more than sixty
other knife wounds. The defendant sustained a single cut on the
back of one leg.
36
"The search under [G. L. c. 278, § 33E,] is a more general
and an obligatory one for a result that may be 'more consonant
with justice,'" Commonwealth v. Davis, 380 Mass. 1, 15 n.20
(1980), quoting Commonwealth v. Seit, 373 Mass. 83, 94 (1977),
but "[w]e do not sit as a second jury to pass anew on the
question of the defendant's guilt." Commonwealth v. Reddick,
372 Mass. 460, 464 (1977). See Commonwealth v. Walker, 443
Mass. 213, 229 (2005). In light of the entirety of the record,
we discern no reason to set aside the verdict or to reduce the
degree of guilt. See Commonwealth v. Harris, 464 Mass. 425,
429-430, 436 (2013) (court declined to exercise its
extraordinary authority to set aside murder verdict despite
evidence that victim had reached for firearm, had threatened to
shoot defendant, and had grabbed defendant by throat). Contrast
Commonwealth v. Vargas, 475 Mass. 338, 365-367 (2016) (verdict
of voluntary manslaughter more consonant with justice where
defendant was fearful of victim, "who was much larger" and was
"trained to kill," and where fight was result of "uncontrolled
violent actions on the part of the defendant").
Having carefully considered all of the evidence, we discern
no reason to use our authority under G. L. c. 278, § 33E, to
reduce the verdict to a lesser degree of guilt.
Judgment affirmed.