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SJC-13022
COMMONWEALTH vs. ANDREW MacCORMACK.
Suffolk. November 7, 2022. - May 9, 2023.
Present: Budd, C.J., Gaziano, Cypher, Kafker, & Georges, JJ.
Homicide. Evidence, Prior misconduct, Third-party culprit,
Inference, Consciousness of guilt, Inflammatory evidence,
Relevancy and materiality. Practice, Criminal, Capital
case.
Indictment found and returned in the Superior Court
Department on October 31, 2017.
The case was tried before Mary K. Ames, J.
Stephen Paul Maidman for the defendant.
Sarah Montgomery Lewis, Assistant District Attorney (Ian
Polumbaum, Assistant District Attorney, also present) for the
Commonwealth.
GEORGES, J. A Superior Court jury convicted the defendant
of murder in the first degree on a theory of extreme atrocity or
cruelty, see G. L. c. 265, § 1, in the killing of his wife,
Vanessa MacCormack, by blunt force trauma and strangulation. On
appeal, the defendant argues that there was insufficient
2
evidence to support his conviction. He also contends that the
police investigation focused exclusively on him, rather than
pursuing other leads, and that the judge abused her discretion
in permitting the introduction of certain evidence that the
defendant argues was used improperly as propensity evidence. In
addition, the defendant asks us to exercise our extraordinary
authority under G. L. c. 278, § 33E, to direct the entry of a
verdict of not guilty or to order a new trial. Having carefully
reviewed the record, we discern no error that would warrant
vacating the conviction, or ordering a new trial, and no reason
to grant relief under G. L. c. 278, § 33E.
1. Facts. We recite the facts the jury could have found,
viewed in the light most favorable to the Commonwealth.
Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).
The defendant and the victim were married in August of
2015, and purchased a house in Revere a few months later. Both
of their families lived nearby and were intimately involved in
the couple's lives. At the time of the victim's killing in
September of 2017, the defendant's mother was living with the
defendant and the victim, as she had been since the previous
April. Ordinarily, the defendant already would have left for
work by the time his mother would wake up at 6 A.M. The victim
was in daily contact with members of her family, calling and
sending text messages to them multiple times a day, and to
3
family and friends, the victim and the defendant appeared to be
happy.
Beginning in early 2017, however, issues arose stemming
from the defendant's financial improprieties, which the victim
suspected were to fund his growing use of drugs. In February
2017, the victim realized that approximately $6,000 had been
taken from her bank account. Evidence at trial pointed to the
defendant: he had forged and cashed at least two checks to
himself, each for $350, from the victim's account, and there was
no evidence of third-party access. That same month, the victim
realized that her wedding ring was missing. The couple
purchased a replacement, but it also went missing two weeks
later. When the couple called police to investigate a potential
robbery, officers found no signs of forced entry. The defendant
mentioned to officers that the baby monitor had been "hacked,"
and a small basement window was open. Police determined that
the window was too small for anyone to have entered through it.
The second ring was never found.
The defendant began frequenting local pawn shops, taking
out loans on gift cards and other jewelry, including his wedding
ring, and then defaulting on the loans. Unbeknownst to his
wife, the defendant repeatedly opened, overdrew, and closed bank
accounts throughout 2017. By the summer, the defendant was
spending between $100 and $400 on cocaine and steroids weekly.
4
On July 28, 2017, the victim sent a text message to the
defendant saying that he was ruining their marriage and that she
was unhappy and furious. The defendant tried to assure her that
everything would be fixed, but the victim said that she knew the
defendant was doing something suspicious, as she had seen a
notification on his cellular telephone from someone she knew to
be a drug seller, and the defendant had attempted to take out a
loan without her knowledge. The victim continued to send the
defendant a series of angry and indignant text messages, full of
profanity, throughout the night. Text messages over the
following month indicated that the victim's frustration with the
defendant continued to grow.1
On August 31, 2017, the defendant and the victim got into
another argument. The victim sent a text message to the
defendant saying that she was going to sell the house and find a
1 Among other things, the victim sent the defendant a text
message saying, "I'm furious. You are ruining this marriage.
It's not fair. I'm unhappy in this marriage because of you.
You need to fix this." In subsequent messages, she reiterated
that the situation was not fair to her, she did not trust the
defendant, she was "at the end of [her] rope in this marriage,"
and the defendant was "making [her] fucking miserable."
Over the course of the month, the victim, on separate
occasions, sent the defendant messages saying that she was "so
fucking mad," demanded detailed information about the
defendant's whereabouts, said that she was "blind-sided" that he
was not where she thought he had been, protested that she
"thought [they] were trying to work on [their] marriage," and
repeatedly asked about different sums of money that had gone
missing from their joint account.
5
divorce lawyer and that she could not stop thinking about the
possibility of divorce. The following day, the defendant
responded that the victim was "crazy" and that he would not sign
anything to sell the house or to obtain a divorce. On September
2, the victim continued to express her anger to the defendant in
text messages, and the following day, she demanded answers from
the defendant about times when she felt that he had lied to her,
including instances of missing cash, mysterious bank
withdrawals, and her missing credit card.
On September 8, 2017, the victim sent the defendant a
message about additional money that was missing from their bank
account, and accused him of creating their financial problems
because of his drug habit and only saying he would improve
things and repay her missing money in order to avoid a divorce.
The next day, the victim again told the defendant that she was
unhappy with him and their marriage. These later messages were
in response to the defendant's accrual of hundreds of dollars in
unpaid parking tickets for the victim's father's sport utility
vehicle (SUV), which the defendant had been using regularly
since February.
On September 22, 2017, the victim checked into her gym at
6:36 P.M. Later, after returning home, she had an audio-video
call with her parents so they could say goodnight to her
daughter. At 8:17 P.M., the defendant sent the victim a
6
photograph of his new haircut and they both called each other.
At 8:58 P.M., the victim sent the defendant a text message
asking where he was.
The defendant ultimately spent the evening in the basement
of the house, where he intended to sleep. He devoted his time
that evening to browsing Internet escort listings advertising
sex for money.
a. Events of September 23, 2017. In the early morning
hours of September 23, 2017, the defendant sent a text message
to an escort and arranged to meet her at 10 A.M. on Route 1 in
Peabody. He continued to peruse similar listings until after
3 A.M.
The defendant's mother testified that she left the house at
around 8:30 A.M. At 8:28 A.M., surveillance camera footage
showed the defendant driving toward a liquor store at the end of
the street, circling it, and returning home at 8:35 A.M. During
this brief trip, the victim called the defendant's cellular
telephone twice.
Throughout the morning, the defendant made a series of
telephone calls to his friend James Caruso, the first at
around 10 A.M. Caruso lived in Saugus, which is north of
Revere. Earlier that week, the defendant and Caruso had
discussed the defendant going to Caruso's house to help finish
some work on the house. Surveillance video footage and cell
7
site location information (CSLI) for the defendant's telephone
showed that he did not leave his house again until 12:49 P.M.,
when he drove away with his daughter in the SUV. By that time,
according to the medical examiner, the victim was dead. The
defendant had killed the victim and left her body on the floor
of their bedroom.
After leaving the house, the defendant called Caruso at
12:54 P.M. He told Caruso that he had taken the baby for a walk
and was going to see if the victim was home from the gym before
heading to Caruso's house. Approximately four minutes later, as
he was driving south on Route 107 toward Revere, the defendant
called the victim at 12:58 P.M., and the call went directly to
voicemail.2 He then sent the victim two text messages saying
that he would be going to visit Caruso and asking why she was
not responding, respectively. The defendant drove a meandering
route through Revere, and then drove north on Route 107 toward
Saugus; he arrived at Caruso's house, a five-minute drive from
his own house, at 1:30 P.M.
As he was completing the work on Caruso's home, the
defendant called his mother-in-law. He told her that the victim
had not been home when he left the house and that she was
2 Other calls to the victim's cellular telephone that
afternoon, from the defendant and from the victim's sister and
parents, also went directly to voicemail.
8
probably at the gym. He said that he had been at Caruso's house
for approximately one hour with the baby and would be leaving in
about fifteen minutes. After ending the call, the defendant
mentioned to Caruso that he had not heard from the victim since
she left for the gym that morning. The defendant seemed
concerned and said that it was unusual not to have heard from
her, as the two usually spoke while the victim was at the gym.
The defendant called his home telephone for six seconds, and
then again called the victim's cellular telephone. The victim's
mother called the defendant again at around 2:10 P.M.; he said
that he was still at Caruso's house, and would be leaving in
about twenty minutes.
The defendant left Caruso's house a few minutes later. He
bought gasoline in Winthrop, drove to a pharmacy in the East
Boston section of Boston, and then met his drug supplier in East
Boston, where he purchased cocaine. The defendant took an
indirect route back to his house in Revere, approaching it from
Saugus to the north, rather than from Caruso's house to the
south. During the drive, he again spoke with his in-laws
concerning the victim's whereabouts.
The victim's mother called the defendant again at around
3:30 P.M., as the defendant was pulling into his driveway. The
defendant remained on the telephone with her as he parked and
entered the house. Then he screamed, "Call 911. She's dead."
9
The victim's mother hung up and called 911. When the defendant
called the victim's mother again, he told her that the victim
was "dead" and "cold." The defendant picked up the baby, still
in her carrier seat, and ran out of the house to call 911.
First responders found the victim in the couple's bedroom,
lying face-down in a pool of blood, with a garbage bag partially
full of trash over her head. An autopsy later revealed that the
cause of death had been a combination of blunt force trauma to
the face, strangulation, and stab and slash wounds to the neck.
Blood pooling indicated that she had been alive when some of the
blunt force injuries and lacerations occurred, although the stab
and slash wounds to the victim's neck were inflicted "pretty
near death" or postmortem.
b. The investigation. That evening, police officers
brought the defendant to the Revere police station for an
interview. There were no signs of bruising, scratches,
injuries, or marks on the defendant's body. The defendant
described to the officers the course of his actions that day.
He also said that he and the victim were "very happily" married
and did not have any problems related to infidelity, drugs, or
finances. He explained that all of the doors had been locked
when he left the house that morning and that he had had to use a
key upon his return. When the interviewing officers brought up
the issue of the missing rings, the defendant suggested that the
10
second ring must have been stolen and said that police had found
a "suspicious" window in the basement that was unlocked.
When police searched the defendant's and the victim's
house, they found no signs of forced entry. Blood spatter on
the inside of the bedroom door, walls, closet doors, and
bedframe also showed no signs of a struggle. The bathroom
appeared to have been cleaned recently, and the television and
other surfaces had been wiped down. The bed linen had been
removed and was in a laundry basket, but contained no trace of
blood. A large butcher knife was missing from the knife block
in the kitchen, and there was no bag in the kitchen garbage
container. There was an overwhelming odor of bleach throughout
the house. The investigation uncovered no useful fingerprints
or deoxyribonucleic acid.
A forensic examination of the defendant's cellular
telephone revealed that he had deleted several items from it
shortly after the victim's death. Those items included Internet
browsing history of visits to an escort Web site, and several
text messages in which the defendant attempted to arrange a
meeting with an escort, in the week leading up to the victim's
death and in the early morning hours of September 23, 2017.
c. Prior proceedings. The grand jury indicted the
defendant on one count of murder in the first degree. At trial,
the Commonwealth proceeded on theories of deliberate
11
premeditation and extreme atrocity or cruelty. The defendant
maintained a defense that the Commonwealth's evidence did not
establish him as the killer beyond a reasonable doubt. He
called two witnesses to testify for the defense. His mother
testified to his former drug use and the time he spent in drug
rehabilitation. Thomas Riley, who knew the defendant from
playing in a local hockey league, testified that the defendant
had given him a ride that afternoon. The judge denied the
defendant's motions for a required finding of not guilty at the
close of the Commonwealth's case and at the close of all the
evidence. The jury convicted the defendant of murder in the
first degree on a theory of extreme atrocity or cruelty.
2. Discussion. The defendant argues that there was
insufficient evidence to support a finding that he was the
perpetrator and that, thus, his motions for a required finding
should have been allowed. Specifically, the defendant asserts
that the Commonwealth's case rested on improper speculation
about his character and that the prosecutor did not introduce
evidence that affirmatively demonstrated that the defendant had
committed the crime.
a. Sufficiency of the evidence. In reviewing the denial
of a motion for a required finding of not guilty, we consider
whether, after viewing the evidence in the light most favorable
to the Commonwealth, any rational trier of fact could have found
12
the essential elements of the crime beyond a reasonable doubt.
See Commonwealth v. Latimore, 378 Mass. 671, 678 (1979), citing
Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). "The
relevant question is whether the evidence would permit a jury to
find guilt, not whether the evidence requires such a finding."
Commonwealth v. Brown, 401 Mass. 745, 747 (1988).
Circumstantial evidence is competent to establish guilt beyond a
reasonable doubt, Commonwealth v. Nadworny, 396 Mass. 342, 354
(1985), cert. denied, 477 U.S. 904 (1986), and the reasonable
inferences drawn from such evidence "need not be necessary or
inescapable," only "reasonable and possible" (citation omitted),
Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass.
215 (2007) and 460 Mass. 12 (2011). At the same time, a
conviction may not rest on the piling of inference upon
inference or on conjecture and speculation. Id.
Here, the jury reasonably could have found that it was the
defendant, and not a third-party culprit, who committed the
murder, where the evidence supported an inference that the
defendant was the only person in the house with the victim and
their baby during the relevant time frame. Video surveillance
footage showed the defendant driving away from the house in the
SUV at 12:49 P.M.; that is the first time the defendant appears
on surveillance footage near his street after he was shown
returning home at 8:35 A.M.
13
Moreover, the prosecutor introduced sufficient evidence
from which the jury reasonably could have found that the
defendant was alone with the victim, because there was no
evidence that anyone else was present in the house at that time.3
Cf. Commonwealth v. Coonan, 428 Mass. 823, 829 (1999) (evidence
showing that victim and defendant were together at time of
killing, in conjunction with other incriminating evidence, was
sufficient to support conviction). The defendant told police,
the victim's mother, and Caruso that the victim intended to go
to the gym that morning. CSLI evidence, however, indicated that
the victim's telephone had been at her house all morning, as did
testimony from employees of the victim's gym asserting that her
last visit to the gym had been the previous evening. The
defendant's mother testified that she left the house at around
8:30 A.M, and the victim's mother and father testified that they
were out of town that day. No evidence was introduced to
suggest that any other person had entered the house; given the
3 Testimony by a paramedic who responded to the 911 call
indicated that in her opinion, the victim had been dead for at
least two to three hours based on the state of rigor mortis in
the victim's jaw when first responders arrived at the scene
shortly after 3:30 P.M. The jury later heard testimony from a
State medical examiner that there was no certain way to
establish a time of death from rigor mortis, nor a current
reliable formula to establish the precise time of death from
temperature. If the jury credited the paramedic's testimony,
drawing all inferences in the Commonwealth's favor, the victim
would have been dead when, as the surveillance video footage
indicated, the defendant left the house at 12:49 P.M.
14
locked doors and windows, the jury reasonably could have
concluded that no one had done so. The jury thus could have
discredited the defendant's version of events and found instead
that the victim had remained home that morning and that the
defendant was the only one there with her and the baby after the
defendant's mother left the house. See Commonwealth v. Lopez,
484 Mass. 211, 217 (2020) (jury may credit or reject some, part,
or all of particular witness's testimony).
In addition, the prior bad act evidence that the defendant
challenges, which was introduced to show the nature of his and
the victim's prior relationship, was properly before the jury as
evidence of consciousness of guilt. Evidence of consciousness
of guilt, while not conclusive, may be considered in conjunction
with other evidence to establish guilt beyond a reasonable
doubt. See Commonwealth v. Woods, 466 Mass. 707, 715, cert.
denied, 573 U.S. 937 (2014), S.C., 480 Mass. 231, cert. denied,
139 S. Ct. 649 (2018), citing Commonwealth v. Rojas, 388 Mass.
626, 629 (1983). Such evidence may include making false or
inconsistent statements to police and giving a false alibi.
Woods, supra. See Rojas, supra at 629-630.
As discussed, quite a few of the defendant's statements
about his location and activities on the day of the crime were
inconsistent with other evidence introduced at trial. In his
statement to police, the defendant said that he went to the
15
beach at around 12:30 P.M. with his daughter, and then stopped
at a pharmacy and a gasoline station, before he headed to
Caruso's house at around 2 P.M. The defendant also stated that
after leaving Caruso's house, he drove directly home, where he
discovered the victim's body. Riley testified that he saw the
defendant at the beach in East Boston that afternoon and said
that the defendant had given him a ride to a liquor store.
The jury, however, reasonably could have inferred that the
images on the surveillance footage, and the CSLI records,
reflected the defendant's actual location. The CSLI and
telephone records suggested that the defendant had remained at
his house until 12:49 P.M., not 12:30 P.M. Video surveillance
footage then showed the defendant driving around Revere and
Saugus, in a direction away from his and Caruso's houses, for
approximately forty minutes. Additional footage showed the
defendant leave Caruso's house and drive to a pharmacy and a
gasoline station before going to East Boston to purchase
cocaine. The jury could have inferred from the CSLI and video
surveillance footage that the defendant returned home from East
Boston using a deliberately circuitous route, in order to delay
his report of having found the victim dead in their house.4
4 CSLI from that period was consistent with the defendant's
route as seen in the surveillance footage.
16
In his statement to police, the defendant repeatedly
emphasized how concerned he was about the victim and that he had
communicated his concern to others throughout the day. In the
defendant's concerned calls to the victim's telephone, his
statements to Caruso, and his meandering drives, the jury
reasonably could have inferred that the defendant was attempting
to orchestrate a timeline that placed him away from the house at
critical moments and provided a way for him to express concern
for his wife. See Commonwealth v. Fitzpatrick, 463 Mass. 581,
594 (2012) (defendant's fabricating alibi by parking truck in
driveway so it would be visible, and recounting false series of
events to police, was consistent with consciousness of guilt).
Additionally, Kimberly Donovan, a friend of the victim's
mother, testified that she gave the defendant a ride to the
victim's parents' house on the evening of the killing. During
that ride, the defendant insisted to Donovan, without prompting,
that investigators had asked him repeatedly about the presence
of bleach in the house in efforts to "trick" him. During that
interview, however, the officers deliberately had not mentioned
bleach. Here, too, the jury reasonably could have inferred that
the defendant's non sequitur protestations to Donovan that the
police were trying to "trick" him were intended as an attempt to
fabricate sympathy and protest his innocence.
17
The defendant also repeatedly told police that he and the
victim were "very happily" married, had no financial
difficulties, and were faithful. From the victim's text
messages, testimony by the defendant's friends and members of
the victim's family, and content on the defendant's cellular
telephone, however, the jury could have determined that the
relationship was quite different from what the defendant
described. The jury heard evidence from which they could have
concluded that the defendant was buying and using drugs, had
stolen money, jewelry, and credit cards from the victim, and had
sought to exchange money for sex with escorts. The victim's
text messages suggested a degree of frustration with, and anger
at, the defendant to such an extent that she was contemplating
obtaining a divorce.
The forensic investigation of the defendant's telephone
indicated that he had deleted certain text messages and browsing
history from his telephone that portrayed him in an unflattering
light, detailed his efforts to find escorts, including hours
before the victim's death, and showed contentious discussions
between the victim and himself concerning financial
difficulties. The jury could have understood these deleted
telephone records as a willful attempt at concealment, and as
evidence of the defendant's consciousness of guilt. See, e.g.,
Commonwealth v. Gilbert, 423 Mass. 863, 869-870 (1996), S.C.,
18
447 Mass. 161 (2006) (defendant's repeated denial of serious
difficulties between couple in face of consistent evidence to
contrary was evidence of his consciousness of guilt). While
such evidence by itself would be insufficient to sustain a
conviction, it may be considered as part of the "mosaic of
evidence" upon which the jury could have concluded that the
Commonwealth had met its burden of proof beyond a reasonable
doubt. See Commonwealth v. Javier, 481 Mass. 268, 284 (2019),
quoting Commonwealth v. Salim, 399 Mass. 227, 233 (1987).
And although the Commonwealth need not prove motive for a
conviction of murder in the first degree, evidence of a
defendant's motive may be relevant and admissible, as it was
here, to show that the defendant intended and acted as argued.
See Commonwealth v. Carlson, 448 Mass. 501, 508-509 (2007).
The jury heard multiple types of evidence from which they
reasonably could have inferred that the defendant had a motive
to kill the victim. Text messages from the victim, as well as
police testimony, indicated certain underlying reasons for the
increasingly fraught relationship between the defendant and the
victim and the growing animosity the victim directed at the
defendant. This evidence, among other things, showed that the
defendant forged and cashed two checks from the victim's
accounts, repeatedly opened and closed bank accounts, was
dishonest about having paid parking tickets, pawned his wedding
19
ring and household gift cards, and caused the disappearance of
the victim's two wedding rings, in the victim's view, to support
his drug habit. The defendant also repeatedly told the victim
that their bank accounts had been hacked, notwithstanding the
absence of any evidence indicating that this had occurred. See
Commonwealth v. Tassinari, 466 Mass. 340, 347 (2013) (victim's
statements expressing dissatisfaction with marriage and hopes
for divorce were relevant to defendant's motive); Commonwealth
v. Mendes, 441 Mass. 459, 464-465 (2004) (evidence of husband's
financial irregularities, use of cocaine, and consorting with
prostitutes established existence of strained marital
relationship as possible motive for killing).
The victim told the defendant multiple times that she was
thinking of divorcing him. Each time, the defendant responded
that he did not want the marriage to end, apologized, and
promised that he would do better. See Lao, 443 Mass. at 780
(defendant's knowledge of termination of marriage was evidence
of motive); Commonwealth v. Lodge, 431 Mass. 461, 463 (2000)
(evidence showing deteriorating relationship between victim and
defendant in year prior to murder was probative of motive).
b. Defendant's arguments. The defendant argues that the
Commonwealth's case was based on attacking his character and
speculation about his behavior in the months leading up to the
victim's death, rather than on any direct evidence that he had
20
played a role in the killing. The only way he could have been
convicted, the defendant contends, is if the jury failed to
presume him innocent while weighing the evidence, in violation
of his right to due process. He argues that because the
Commonwealth did not demonstrate to the jury that it ruled out
other suspects and lacked direct evidence that he had played a
role in the killing, his conviction cannot stand.
The theory of the defense at trial, consistent with the
defendant's statement to police, was that the defendant was not
at home at the time of the killing. In his statement to police
on the evening of the victim's death, the defendant said that he
had slept in the basement the previous night. According to the
defendant, the victim woke him up at around 9 A.M. with the
baby, and his mother left the house at approximately 9:30 A.M.
At 11:30 A.M., the victim told him that she wanted to go to the
gym. He told the victim he would take the baby for a walk and
then go to Caruso's house. The victim was still at home when
the defendant left at 12:30 P.M. and took the baby in her
stroller to the beach. When he got to the beach, he contacted
Caruso to arrange his visit. The defendant showed the officers
his cellular telephone, which indicated that he had tried to
call the victim and had sent her a text message at 12:59 P.M.
The jury reasonably could have rejected the defendant's
account. The absence of any sign of entry by anyone else, the
21
locked doors, the lack of any means of alternate entry, and the
absence of any struggle by the victim, in conjunction with the
testimony, video surveillance footage, and CSLI, discussed
supra, would have allowed a reasonable juror to infer that the
defendant had not been where he claimed he had been at the time
of the killing. Rather, he and the victim had been alone with
their daughter in the house at the time of the victim's death.
See Commonwealth v. Anderson, 396 Mass. 306, 311-313 (1985)
(evidence that defendant was alone with victim at about time of
murder, along with evidence of consciousness of guilt, was
sufficient to sustain verdict); Rojas, 388 Mass. at 629-630
(same).
The defendant's argument that the Commonwealth improperly
relied on solely circumstantial evidence also fails. When
reviewing sufficiency of the evidence, we "must look at the
evidence as a whole and not examine exhaustively each piece of
evidence separately." Salim, 399 Mass. at 233. Each inference
drawn from the evidence must be a reasonable and logical
conclusion, and the jury may not rely upon conjecture,
guesswork, or speculation to choose between alternate
inferences. See Commonwealth v. Dostie, 425 Mass. 372, 376-377
(1997). Thus, where the Commonwealth's evidence is entirely
circumstantial, it cannot meet its burden if the evidence
equally supports inconsistent propositions, as resolution of
22
such a case necessarily requires conjecture or surmise. See,
e.g., Commonwealth v. Merry, 453 Mass. 653, 663 (2009).
The case before us, however, is not one of equally
inconsistent propositions, as there was no evidence of a
plausible culprit aside from the defendant. See Merry, 453
Mass. at 663 (evidence did not equally support defendant's and
Commonwealth's theories of crime). Rather, the evidence would
have supported an inference that the defendant and the victim
were home alone with their infant daughter on the morning of the
killing, and there was no evidence of a forced entry. See
Commonwealth v. Merola, 405 Mass. 529, 535 (1989). From the
inconsistencies between the defendant's statements and the
record evidence of the location of his cellular telephone and
the surveillance footage showing the location of the SUV, the
jury reasonably could have inferred that the defendant's
statements were false and represented an attempt to construct an
alibi, demonstrating consciousness of guilt. See Rojas, 388
Mass. at 629-630. In addition, evidence was introduced of a
troubled marriage, resulting from the defendant's financial
improprieties, which coincided with his return to, and
increasing use of, drugs. There also was abundant evidence of
the victim's escalating anger toward the defendant and her
contemplation of leaving the marriage in the weeks and days
leading up to her death. See Fitzpatrick, 463 Mass. at 594.
23
While a conviction may rest entirely on circumstantial
evidence, "[t]he evidence and the inferences permitted to be
drawn therefrom must be 'of sufficient force to bring minds of
ordinary intelligence and sagacity to the persuasion of [guilt]
beyond a reasonable doubt.'" Commonwealth v. Sokphann Chhim,
447 Mass. 370, 377 (2006), quoting Latimore, 378 Mass. at 677.
Here, no single inference the jury reasonably could have drawn
would have been sufficient, in isolation, to establish guilt
beyond a reasonable doubt. Combined, however, those reasonable
inferences create a "fabric of proof" that is sufficient to
warrant the jury's finding that the defendant was the person who
killed the victim beyond a reasonable doubt. Rojas, 388 Mass.
at 629-630. See Fitzpatrick, 463 Mass. at 594. As the
defendant emphasizes, the evidence against him was wholly
circumstantial. Nonetheless, it was not, as he contends,
insufficient to warrant the jury's conclusion that he killed the
victim. See Lao, 443 Mass. at 780.
The defendant also objects that the criminal investigation
improperly focused on him to the exclusion of all others. The
defendant moved in limine to introduce evidence that police
improperly and immediately focused on him, and did not pursue
any other investigative leads. The defendant argued that there
was evidence of hostility between a boyfriend of the victim's
sister and the victim's family; the boyfriend's telephone number
24
was stored in the mother's telephone under the moniker
"asshole." At the time of the victim's death, the boyfriend
lived a short distance away, on the same street as the victim.
At a hearing on the motion, the defendant explained that the
victim's family told investigators that when her family was
trying to locate her on the day of her death, they looked at a
map showing the location of all telephones enrolled in their
family's cellular provider's plan. On that map, the victim's
cellular telephone appeared in near vicinity to the boyfriend's
telephone, suggesting that the two were close by. The defendant
maintained that police should have investigated this individual
further.
The defendant also argued in his motion in limine that
police failed to investigate the hacking of the baby monitor.
When they spoke to police after the victim's replacement wedding
ring vanished, the defendant and the victim both mentioned that
they had seen the motorized baby monitor moving as if it were
being operated, but without either of them doing so. The
defendant also mentioned the baby monitor in his statement to
police. The judge allowed the defendant's motion to introduce
both pieces of Bowden evidence, but declined the request for a
Bowden instruction. See Commonwealth v. Bowden, 379 Mass. 472,
485-486 (1980). At trial, the defendant attempted to suggest
25
the possibility of an unknown third-party culprit through cross-
examination.
A defendant has a constitutional right to a defense and to
present evidence that another may have committed the crime. See
Commonwealth v. Alcantara, 471 Mass. 550, 559 (2015).
Consequently, we afford such evidence wide latitude, insofar as
it tends to show that another person had the motive, intent, or
opportunity to commit the offense. Commonwealth v. Steadman,
489 Mass. 372, 383 (2022), citing Commonwealth v. Silva-
Santiago, 453 Mass. 782, 800-801 (2009). Such evidence "must
have a rational tendency to prove the issue the defense raises,
and the evidence cannot be too remote or speculative."
Commonwealth v. Rosa, 422 Mass. 18, 22 (1996).
Information concerning a third-party culprit whose
existence was known to police, but whose potential involvement
was never investigated, may be admissible in order to defend
against a criminal charge by suggesting the existence of other
possible culprits whom police did not investigate. See Silva-
Santiago, 453 Mass. at 802; Rosa, 422 Mass. at 22.
Here, as the defendant concedes, although his motion in
limine regarding Bowden evidence was allowed, he did not present
any evidence at trial that a specific third-party culprit
26
existed.5 The Commonwealth was not required to prove that no one
else possibly could have killed the victim. See Merola, 405
Mass. at 533, citing Commonwealth v. Casale, 381 Mass. 167, 175
(1980). The Commonwealth's burden was to prove that there was
sufficient evidence for the jury to find, beyond a reasonable
doubt, that the defendant had done so. See Latimore, 378 Mass.
at 677. They have done so here.
Finally, the defendant argues that the judge abused her
discretion in allowing the introduction of evidence that, during
the evening before the killing, the defendant spent several
hours browsing websites advertising escort services, scheduled a
meeting with an escort, and sent an explicit photograph of
himself to her (escort evidence). The defendant maintains that
the admission of the escort evidence resulted in overwhelmingly
unfair prejudice that was disproportionate to its limited
probative value. By associating him with a website that he
describes as "the most infamous illicit sexual marketplace in
America," the defendant contends, the prosecution improperly
played on the jury's emotions and caused them to conclude that
he was capable of killing his wife. He argues that the escort
evidence was not probative, because it was not logically related
5 No evidence regarding the victim's sister's boyfriend or
the family's view of him was introduced at trial, nor did the
jury hear any specific evidence concerning the absence of any
investigation of the baby monitor.
27
to the crime charged and, to the extent that it suggested
marital strain, it was cumulative of other evidence. The
defendant also argues that any limiting instructions would have
been ineffective, as the evidence left the jury to conclude that
he was deceitful. As a result, he contends, the jury must have
inferred, based only on his "sinister" behavior, rather than on
any direct evidence, that the defendant was the killer.
Evidence of a defendant's prior bad acts may not be
introduced to show the defendant's bad character or propensity
to commit the crimes charged. See Commonwealth v. Da Lin Huang,
489 Mass. 162, 173 (2022), citing Commonwealth v. Helfant, 398
Mass. 214, 224 (1986); Mass. G. Evid. § 404(b)(1) (2022). Such
evidence may be admissible, however, for other purposes, such as
to establish motive, state of mind, or intent. See Commonwealth
v. Crayton, 470 Mass. 228, 249 (2014); Mass. G. Evid.
§ 404(b)(2). Even where relevant for a permissible purpose,
such evidence is inadmissible if its probative value is
outweighed by the risk of unfair prejudice to the defendant.
See Crayton, supra at 249 n.27; Mass. G. Evid. § 403.
Evidentiary rulings on relevance, probative value, and
prejudice are left to the sound discretion of the trial judge.
See Commonwealth v. West, 487 Mass. 794, 805 (2021). A judge's
decision to permit the introduction of prior bad act evidence
will be upheld unless the judge made a clear error of judgment,
28
such that the decision falls outside the range of reasonable
alternatives. Id. at 805-806. When assessing whether the risk
of unfair prejudice outweighs the probative value of the
challenged evidence, a reviewing court considers, inter alia,
(1) whether the trial judge carefully weighed the probative
value and prejudicial effect of the evidence to be introduced;
(2) whether the judge mitigated the prejudicial effect through
proper limiting instructions; (3) whether the challenged
evidence was cumulative of other properly admitted evidence,
thereby reducing the risk of any additional prejudicial effect;
and (4) whether the challenged evidence was so similar to the
charged offense that it increased "the risk of propensity
reasoning by the jury." Da Lin Huang, 489 Mass. at 174, quoting
West, supra at 807.
Here, the judge initially denied the Commonwealth's
pretrial motion to introduce the escort evidence because she
found that its probative value was outweighed by the risk of
unfair prejudice; she also allowed the Commonwealth to renew its
motion as the evidence before the jury developed. When the
Commonwealth again sought to introduce the escort evidence on
the ninth day of trial, the judge again denied the motion, but
allowed the Commonwealth to resubmit it based on the state of
the evidence introduced. After the Commonwealth filed a
subsequent renewed motion following the introduction of the
29
defendant's statement to police, and having reviewed the
transcript of that statement, the judge found that the escort
evidence bore on the defendant's motive and state of mind. The
judge commented that the defendant's assertion that the marriage
had been happy was the "tipping point" and concluded that the
escort evidence was more probative than unfairly prejudicial,
based on the defendant's "repeated remonstration[s]" of how
happy the marriage was, in conjunction with the remainder of the
evidence.
The judge then undertook efforts to limit any possible
unfair prejudice to the defendant. When the escort evidence was
introduced, the judge instructed the jury on the "very, very,
very circumscribed" way that they could consider the evidence:
"on the very limited issue of motive of the defendant and [the]
defendant's state of mind." The judge also required the
prosecutor to redact the explicit photograph and the substance
of the escort websites so that the jury's attention would not be
drawn to the redactions. The judge reiterated the limiting
instruction in her final charge.
Given the juxtaposition of the defendant's statements of
happiness and his efforts in the hours before his wife's death
to meet with an escort, there was no abuse of discretion in the
judge's decision to permit the introduction of the challenged
evidence after concluding that the risk of unfair prejudice was
30
outweighed by the probative value of the evidence. At several
different times, after considering the totality of the evidence
that had been presented to that point in the trial, the judge
had denied the motion. See Commonwealth v. Peno, 485 Mass. 378,
394 (2020) ("A record of the thoughtful weighing of the risks of
unfair prejudice . . . may indicate a reasonable exercise of
discretion"). It was only after the defendant's statement to
police was introduced that the judge found that the balance had
shifted. Evidence that a defendant has sought out an
extramarital relationship also may form the basis of a finding
that the defendant entertained feelings of hostility toward his
or her spouse. See Commonwealth v. DeMarco, 444 Mass. 678, 683
(2005). Such inferences are permissible where the potential
adultery is not too remote in time from the killing. Id. at
682. See Mendes, 441 Mass. at 465 (defendant's history of
spending money on drugs and prostitutes was probative of
deterioration of marital relationship).
Without the challenged evidence, at a minimum, the jury
would have lacked context about the defendant's state of mind in
the hours before the killing, and could have concluded that the
killing was "an essentially inexplicable act of violence."
Mendes, 441 Mass. at 464, quoting Commonwealth v. Bradshaw, 385
Mass. 244, 269 (1982). The judge's decision to allow
introduction of the evidence, for limited purposes and with a
31
clear, contemporaneous limiting instruction, was not outside the
"range of reasonable alternatives." West, 487 Mass. at 805-806.
c. Review under G. L. c. 278, § 33E. Having carefully
reviewed the entire record, we discern no reason to exercise our
authority to grant extraordinary relief under G. L. c. 278,
§ 33E.
Judgment affirmed.