Commonwealth v. Gardner , 479 Mass. 764 ( 2018 )

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SJC-11751
COMMONWEALTH vs. THOMAS GARDNER.
Bristol. November 10, 2017. - June 18, 2018.
Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
Homicide. Practice, Criminal, Cross-examination by prosecutor,
Argument by prosecutor, Instructions to jury, Lesser
included offense, Capital case. Evidence, Cross-
examination, Impeachment of credibility.
Indictments found and returned in the Superior Court
Department on July 25, 2012.
The cases were tried before Gary A. Nickerson, J.
Theodore F. Riordan (Deborah Bates Riordan also present)
for the defendant.
Stephen C. Nadeau, Assistant District Attorney, for the
Commonwealth.
LOWY, J. On the morning of Saturday, November 5, 2011, the
defendant, Thomas Gardner, and the victim, Michael Duarte, met
to conduct a drug transaction at a house in New Bedford that was
owned by the defendant's ex-wife. Four days later, after the
victim's girl friend had reported him missing, the police found
2
the victim's body wrapped in a painter's tarpaulin hidden
beneath the basement stairs of that house. The police also
found evidence of the victim's blood in the kitchen, and a trash
bag outside the house that contained clothing and a hammer
bearing both the victim's and the defendant's blood. Further
investigation showed that the victim had died of blunt force
trauma to the head. He had suffered nineteen lacerations to his
head and had four skull fractures; these injuries were
consistent with blows from a hammer.
A Superior Court jury convicted the defendant of murder in
the first degree on the theory of extreme atrocity or cruelty.1
The defendant appeals from his convictions, claiming that (1)
the prosecutor's references to the defendant's prearrest silence
during cross-examination and in closing argument were improper;
(2) the prosecutor mischaracterized evidence during closing
argument; and (3) the judge's instructions to the jury
concerning lesser included offenses were erroneous. Although we
agree that certain of the prosecutor's questions and comments
concerning the defendant's failure to contact the police before
his arrest were improper, we conclude that neither these errors
nor the other arguments raised by the defendant created a
substantial likelihood of a miscarriage of justice.
1 The jury also found the defendant guilty of larceny of a
motor vehicle; violation of an abuse prevention order; and
larceny.
3
Accordingly, we affirm the defendant's convictions and decline
to exercise our extraordinary authority to grant relief under
G. L. c. 278, § 33E.
Facts. We summarize the facts relevant to this appeal as
the jury could have found them, reserving certain details for
later discussion. The victim lived in New Bedford with his girl
friend and their two daughters. Shortly before 9 A.M. on
November 5, 2011, the victim left his home, driving a Honda
Civic automobile, after telling his girl friend that he was
going to look at a house, located on Churchill Street, that was
for sale. He was supposed to return home shortly to take care
of his daughters. When the victim failed to return, his girl
friend began calling him repeatedly on his cellular telephone
beginning at 9:30 A.M., but she was unable to reach him. That
afternoon, she drove to the house on Churchill Street that the
victim had gone to see, but no one answered when she knocked on
the door. Later that evening she contacted the New Bedford
police to report that the victim was missing.
On the morning of November 9, officers with the Fairfield,
Connecticut, police department learned that the victim's Honda
Civic was at a rest area off of Interstate Route 95. When the
first officer arrived, she observed the victim's vehicle parked
at the far end of the parking lot, and the defendant sitting in
the driver's seat.
4
When the defendant saw the police cruiser, he fled in the
vehicle, reaching speeds in excess of one hundred miles per hour
and, among other things, struck another vehicle and ran over the
foot of a police officer. The defendant eventually lost control
of the vehicle, abandoning it in a wooded area. He continued on
foot until he reached Westport, Connecticut, where he entered a
building that was under construction and hid.
Shortly afterward, police officers arrested the defendant
as he walked through Westport. The defendant initially denied
that he was Thomas Gardner and claimed that he was a
construction contractor working on the building where he had
been hiding.
The defendant was eventually transported to a police
station in Fairfield, Connecticut, where he was questioned by a
member of the Massachusetts State police and a detective with
the New Bedford police department. The interview was recorded
and later shown to the jury at trial.2 After the police read the
defendant the Miranda rights and informed him that the interview
was being recorded, the defendant waived his rights and agreed
2 The defendant challenged the voluntariness of his
statements. After a hearing, the motion judge found that the
statements "were freely and voluntarily given beyond a
reasonable doubt." After the videotape was played for the jury,
and later in his final instructions, the trial judge told the
jury that they should not consider the statements made by the
defendant unless they found beyond a reasonable doubt that the
defendant had made the statements and that he had made them
voluntarily, freely, and rationally.
5
to speak with police. The defendant stated that he was
traveling with a "buddy" who was going to Florida and who had
agreed to drop the defendant off at his mother's house in
Pennsylvania on the way. The defendant said that he and his
friend had left New Bedford late in the evening on November 6 in
the friend's Honda Civic. En route, they pulled off at the
Fairfield rest stop, where they remained for two days. The
defendant said that his friend had been inside a restaurant at
the rest stop when the police cruiser had appeared, and that the
defendant fled without him in the Honda Civic. After some
prompting, the defendant indicated that the person he had been
traveling with was the victim, who, he suggested, was going to
Florida to get away from his girl friend. After further
questioning about his trip, the defendant terminated the
interview.
Later that same day, the New Bedford police department
contacted the defendant's ex-wife and obtained her permission to
search the Churchill Street house. There, the police discovered
the victim's body hidden beneath a staircase in the basement,
wrapped in a painter's tarpaulin secured with tape, with a
plastic bag placed over his head. A paint can, a white
painter's cloth, and other painter's materials had been piled on
top of the body. In the kitchen, blood was found on the floor,
a ceiling fan, and a wall clock. Police also detected blood on
6
the basement stairs. There was testimony that the blood on the
wall clock in the kitchen belonged to the victim. Outside the
house, the police discovered a trash bag containing a sweatshirt
with both the victim's and the defendant's blood on a sleeve, a
T-shirt with the victim's blood on the back, and a hammer
bearing both the victim's and the defendant's blood. Subsequent
investigation of the defendant's cellular telephone showed that
on November 5, 2011, the defendant had called the victim at 8:24
A.M. and 10:47 A.M., and that the victim had called the
defendant at 8:38 A.M. and 9:06 A.M.
The medical examiner testified that the victim's death was
caused by blunt force trauma to the head and brain injuries.
The victim had suffered nineteen lacerations and two abrasions
to his head; thirteen of the lacerations went to the bone.
There were four distinct skull fractures. All of these injuries
were consistent with having been caused by blows from a hammer.
All the injuries were inflicted at around the same time and,
although any one laceration alone could have been fatal, there
was no way to determine the order in which the injuries were
sustained, which injury rendered the victim unconscious, or
which caused his death. The victim also had lacerations on his
face, bleeding around both eyes, and minor abrasions on his
right hand. He was missing some teeth that were later
7
discovered in his stomach. The medical examiner opined that the
victim had swallowed them prior to his death.
At trial, the defendant testified in his own defense. He
admitted that he had killed the victim with the hammer that the
police had found, but claimed that he had acted in self-defense.
He testified that he was living at the Churchill Street house
and that, on the morning of November 5, 2011, he had arranged to
meet the victim there to buy heroin from him. When the
defendant gave the victim money for the heroin purchase,
however, the victim became angry because the defendant already
owed him money and did not have enough cash for the new
purchase. According to the defendant, the victim punched him
and a fight ensued, during which the victim tackled him and
slammed him to the floor; the victim then got on top of the
defendant, putting his knees on the defendant's chest and his
hands around the defendant's throat, choking him. The defendant
testified that he then grabbed a hammer from a nearby shelf and
began "slapping" the victim's head with the side of the hammer
before finally striking him with the face of the hammer and
knocking him out briefly. After the defendant stood up and
tried to catch his breath, however, the victim regained
consciousness, grabbed the defendant's pants leg, and tried to
yank the defendant back down to the ground. At that point, the
defendant testified, he struck the victim again with the face of
8
the hammer, killing him. The defendant then wrapped the
victim's body in a tarpaulin and put it in the basement;
disposed of the hammer and clothes in the trash; took the money
from the victim's wallet; sent a false text message to the
victim's cellular telephone asking him why he had not yet
arrived; hid the victim's wallet and the victim's cellular
telephone; and arranged to meet a friend to sell him the
victim's drugs. The next day the defendant fled New Bedford.
Discussion. 1. Prosecutor's references to the defendant's
prearrest silence. The defendant argues that the prosecutor
improperly cross-examined him about his prearrest silence,3 and
exploited that evidence in closing argument, in violation of the
common law and his privilege against self-incrimination under
art. 12 of the Massachusetts Declaration of Rights. The
Commonwealth contends that the prosecutor's cross-examination
concerning the defendant's prearrest silence was permissible in
light of the omissions and falsehoods in the defendant's
postarrest statements.
3 "Prearrest" silence occurs in the period prior to custody,
"[w]hen a citizen is under no official compulsion whatever,
either to speak or to remain silent." Jenkins v. Anderson, 447
U.S. 231, 243-244 (1980) (Stevens, J., concurring). See
Commonwealth v. Nickerson, 386 Mass. 54, 55, 60 (1982).
"Postarrest" silence is silence at the time of arrest and after
receiving Miranda warnings. See Doyle v. Ohio, 426 U.S. 610,
618-619 (1976). See also Fletcher v. Weir, 455 U.S. 603, 605-
606 (1982) (per curiam).
9
We begin our analysis by noting that we have not previously
considered whether art. 12 prohibits use of a defendant's
prearrest silence for impeachment. See Commonwealth v.
Nickerson, 386 Mass. 54, 59 (1982).4 Instead, we have resolved
issues involving use of a defendant's prearrest silence for
impeachment on evidentiary grounds. See Commonwealth v. Niemic,
472 Mass. 665, 672-673 (2015); Nickerson, supra at 60-61.5
We first addressed the use of a defendant's prearrest
silence for impeachment in Nickerson, 386 Mass. at 54. We
recognized that where a defendant does not contact the police to
tell them his story before he is arrested, and later testifies
at trial to facts that he failed to disclose to the police
before his arrest, the defendant's prearrest silence typically
is of limited probative value with respect to the credibility of
his testimony. See id. at 60-61 & n.6. We explained that there
may be many reasons why a defendant does not wish to come
4 "The Supreme Court of the United States . . . held that a
defendant's pre-arrest silence may be used to impeach him
without denying fundamental fairness guaranteed by the
Fourteenth Amendment" to the United States Constitution, but
"left it to the States to determine under their own rules of
evidence when pre-arrest silence is so inconsistent with a
defendant's testimony that impeachment by reference to that
silence is probative." Nickerson, 386 Mass. at 59, citing
Jenkins, 447 U.S. at 239.
5 The defendant in Nickerson, 386 Mass. at 59, made no
claims under the Massachusetts Constitution, and accordingly we
decided the case solely on common-law grounds. See Irwin v.
Commonwealth, 465 Mass. 834, 852 n.31 (2013).
10
forward and speak to the police that have no bearing on his
guilt or innocence. See id. at 61 n.6. "[A]n individual's
failure to speak may be the result of his awareness that he has
no obligation to speak, his caution arising from knowledge that
anything he says may be used against him, and his belief that
efforts to exonerate himself would be futile." Id., citing
People v. Conyers, 52 N.Y.2d 454, 458 (1981). Moreover, "some
individuals [may] not come forward because they want to avoid
contact with the police." Nickerson, supra.
Jurors, however, who may not recognize the wide variety of
alternative explanations for a defendant's prearrest silence,
may overvalue such evidence and "construe such silence as an
admission and, as a consequence, may draw an unwarranted
inference of guilt." Nickerson, 386 Mass. at 61 n.6, quoting
Conyers, 52 N.Y.2d at 459. Given these circumstances, allowing
a defendant to be impeached based on his prearrest silence may
result in substantial prejudice to that defendant, "burden[ing]
his right to testify in his own defense." Nickerson, supra at
61, citing Jenkins v. Anderson, 447 U.S. 231, 246 (1980)
(Marshall, J., dissenting).
Consequently, we advised in Nickerson, 386 Mass. at 62,
that "[i]n general, impeachment of a defendant with the fact of
his prearrest silence should be approached with caution, and,
wherever it is undertaken, it should be prefaced by a proper
11
demonstration that it was 'natural' to expect the defendant to
speak in the circumstances." The trial judge may consider
conducting a voir dire in these circumstances and, "if the
evidence is admitted, the judge should, on request, instruct the
jury to consider that silence for the purposes of impeachment
only if they find that the witness naturally should have spoken
up in the circumstances." Id.6
Applying this test to the situation in Nickerson, 386 Mass.
at 55, 61-62, where the defendant testified at trial that
another person had committed the assault and battery at issue,
we held that it was improper for the judge to instruct the jury
that, in assessing the defendant's credibility, they could
consider the defendant's failure to give this information to the
police before his arrest. We reasoned that, if the defendant
had volunteered this information to the police, it would have
shown that he was at the scene of the crime when it was
committed, had seen the victim attacked and the weapon used, and
knew the identity of the attacker -- information that "would
6 In contrast to impeachment of a testifying defendant,
before a witness other than the defendant can be impeached with
his or her failure to report exculpatory evidence to police, the
Commonwealth must establish "[1] that the witness knew of the
pending charges in sufficient detail to realize that he
possessed exculpatory information, [2] that the witness had
reason to make the information available, [and] [3] that he [or
she] was familiar with the means of reporting it to the proper
authorities." Commonwealth v. Hart, 455 Mass. 230, 238 (2009),
quoting Commonwealth v. Brown, 11 Mass. App. Ct. 288, 296–297
(1981).
12
have gone a long way toward proving that the defendant committed
the crime charged and, as an admission, would have been
admissible as tending to prove his guilt." Id. at 60. Hence
"[i]t would not have been 'natural' for the defendant to have
come forward . . . and produce incriminating evidence against
himself." Id.
More recently, in Niemic, 472 Mass. at 668-669, 673, a
murder case where the defendant took the stand to testify that
he had stabbed the victim in self-defense, we also held that it
was error for the prosecutor to cross-examine the defendant
about his failure to contact police and tell them about his
alleged self-defense before his arrest. As in Nickerson, 386
Mass. at 60, we concluded that "it would not have been natural
for [the defendant] to seek out police to tell his exculpatory
story." Niemic, supra at 673.7 See Commonwealth v. Irwin, 72
7 It is important to distinguish the situation where a
defendant is being questioned about his or her failure to
contact the police, however, from the situation where a
defendant is being questioned about omissions in prearrest
statements or inconsistencies between those statements and the
defendant's later testimony. For example, although we held in
Commonwealth v. Niemic, 472 Mass. 665, 672-673 (2015), that it
was improper for the prosecutor to question the defendant about
his failure to contact the police to tell them that he had
stabbed the victim in self-defense, we also held that the
prosecutor could properly question the defendant about voluntary
prearrest statements that he had made to civilian witnesses in
which he had omitted any mention of self-defense, where it would
have been natural for him to explain that he had been acting in
self-defense. See Commonwealth v. Greineder, 458 Mass. 207,
13
Mass. App. Ct. 643, 653-654 (2008) (prosecutor's focus during
cross-examination of defendant and in closing argument on
defendant's refusal to participate in prearrest interview with
police detective was improper); Commonwealth v. Ewing, 67 Mass.
App. Ct. 531, 544-545 (2006), S.C., 449 Mass. 1035 (2007)
(prosecutor's remarks urging jury to discredit defendant's
testimony because he did not contact police prior to trial after
learning of charges not proper).
There are, however, situations where a defendant's
testimony suggests that it would have been natural for him to
contact police in the circumstances described, and in those
cases it is appropriate for the prosecutor to cross-examine the
defendant about his failure to do so. For example, in
Commonwealth v. Barnoski, 418 Mass. 523, 524, 534 (1994), the
Commonwealth alleged that the defendant had shot a father and
son who were his social friends. The father died from his
wounds, while the son survived. Id. at 527. The defendant
testified that the son had shot the father, that the son had
then threatened the defendant's wife, and that while the
defendant was protecting his wife another acquaintance struggled
with the son over the gun, resulting in the son's shooting. Id.
at 534. Given this testimony, we concluded that it was not
243-244 (2010), vacated on another grounds, 567 U.S. 948 (2012),
S.C., 464 Mass. 580, cert. denied, 571 U.S. 865 (2013).
14
improper for the prosecutor to question the defendant about his
failure to contact the police after the shootings, because "if
the defendant's story were true, he naturally would have
contacted the police to get help for his wounded friend," the
father. Id. at 536. "The prosecutor did not ask any questions
about the defendant's failure to inculpate [the son] (and thus
exculpate himself)," but "simply brought out the fact that the
defendant did not come forward when it would have been natural
for him to do so." Id. at 536-537.
Here, after the defendant testified that he had killed the
victim in self-defense, the prosecutor repeatedly cross-examined
the defendant about his failure to contact the police during the
period between the victim's death on November 5, 2011, and his
arrest on November 9, 2011.8 As in the cases cited above, the
8 For example, at one point the prosecutor engaged in the
following colloquy with the defendant:
Q.: "And it never occurred to you during any of this that
you might want to call the police?"
A.: "Yes, it did. I wanted to call the police, yes."
Q.: "You wanted to call the police?"
A.: "Yes."
Q.: "Okay. Did you call the police on November 5th,
2011?"
A.: "No."
Q.: "The 6th?"
15
prosecutor's cross-examination and closing argument were
improper insofar as they focused on the defendant's prearrest
silence. Notwithstanding the defendant's statement that he
"wanted to call the police," the record suggests that, even
assuming that he had killed the victim in self-defense, it would
not have been natural for him to contact the police or volunteer
information to them under the circumstances. In addition to the
fact that telling his story to the police would have implicated
him in the victim's death, the defendant had other reasons for
avoiding the police: he was a drug addict; he had taken the
victim's money and his vehicle; and he had been previously
arrested for violating a restraining order that his ex-wife had
obtained, and he knew that he had violated that order again by
being in the Churchill Street house.
A.: "No."
Q.: "The 7th?"
A.: "No, I did not."
Q.: "The 8th?"
A.: "No."
The prosecutor returned to this line of questioning three more
times during cross-examination of the defendant, asking the
defendant to "tell the jury when it crossed [his] mind to call
the police after this happened," and whether he was thinking
about calling the police while he was hiding the defendant's
body, while he sent a text message to his ex-wife, or while he
was trying to sell drugs to another friend.
16
We reject the Commonwealth's argument that it was
appropriate for the prosecutor to question the defendant about
his prearrest silence because he dissembled in his postarrest
statement. Our decisions have carefully distinguished
impermissible references to a defendant's prearrest silence from
permissible references to a defendant's postarrest statements.9
Even where we have concluded that the prosecutor properly
referred to inconsistencies and omissions in a defendant's
postarrest statement, we have still held that references to a
defendant's prearrest silence were improper. See Commonwealth
v. Thompson, 431 Mass. 108, 116-118, cert. denied, 531 U.S. 864
(2000) (prosecutor could properly comment on defendant's
failure, during his postarrest interrogation, to ask appropriate
questions about what had happened to his wife and daughter, but
that it was error for prosecutor to question officer about
defendant's prearrest silence when told of his wife's death).
9 In a line of cases beginning with Doyle, 426 U.S. at 618,
the United States Supreme Court defined the category of
infractions involving the use of a defendant's silence that
gives rise to constitutional error. In Doyle, the Court held
that the "use for impeachment purposes of [a defendant's]
silence, at the time of arrest and after receiving Miranda
warnings, violate[s] the Due Process Clause of the Fourteenth
Amendment." Id. at 619. The Court in Doyle did not, however,
establish a prophylactic rule that gives rise to a
constitutional error in every case in which a prosecutor refers
to a defendant's postarrest silence. The rule announced in
Doyle does not apply to impeachment testimony regarding prior
inconsistent statements after Miranda warnings. See Anderson v.
Charles, 447 U.S. 404, 408 (1980) (per curiam).
17
Cf. Commonwealth v. Beneche, 458 Mass. 61, 71-72 & n.13, 76
(2010) (prosecutor could elicit testimony concerning defendant's
failure to ask how his son was killed to show consciousness of
guilt, but testimony about prearrest silence were not proper).
The fact that the defendant ultimately chose to speak to the
police after his arrest, but did so falsely, does not change our
conclusion that his prearrest silence was of minimal probative
value.
Because defense counsel did not object to the prosecutor's
references to the defendant's prearrest silence during the
defendant's cross-examination and closing argument, we determine
whether those errors resulted in a substantial likelihood of a
miscarriage of justice. See Commonwealth v. Kolenovic, 478
Mass. 189, 201 (2017). We conclude that they did not, because
the defendant's testimony and self-defense claim were
extensively and primarily undermined by other evidence at trial.
First, the jury saw the videotape recording of the
defendant's interrogation following his arrest in Connecticut,
during which the defendant said nothing about his alleged fight
with the victim, the victim's death, or killing in self-defense.
Instead, the defendant spun an elaborate tale about traveling
south with the victim and having left him behind at the rest
stop restaurant when he fled from the police. At trial, the
defendant admitted that the story he had told during this
18
interrogation was a lie. As described above, the prosecutor
permissibly cross-examined the defendant about the falsehood of
his story and the inconsistencies between it and the defendant's
testimony at trial, and emphasized this topic in closing
argument.10
Second, certain forensic evidence contradicted the
defendant's testimony. Although the defendant testified that he
10The prosecutor's cross-examination and comments in
closing argument concerning the defendant's postarrest
statements to police were proper, in contrast with the
references to the defendant's prearrest silence. The defendant
certainly had the right to refuse to speak to the police
following his arrest, as he was informed at the outset of his
interrogation. See, e.g., Commonwealth v. Clarke, 461 Mass.
336, 341, 345 (2012). Having chosen to speak, the defendant's
omissions in his postarrest statements to the police and the
inconsistencies between those statements and his testimony at
trial could be properly used by the prosecutor to question his
credibility. "A defendant who takes the witness stand . . . is
subject to the ordinary rigors of proper cross-examination,
including questioning about prior inconsistent statements
voluntarily made." Commonwealth v. Rivera, 425 Mass. 633, 639
(1997). See, e.g., Commonwealth v. Morales, 440 Mass. 536, 551-
552 (2003) (prosecutor could properly comment on defendant's
failure to indicate he acted in self-defense in statement given
to police); Commonwealth v. Thompson, 431 Mass. 108, 118, cert.
denied, 531 U.S. 864 (2000) (where defendant charged with
murdering wife gave voluntary postarrest statement to police
during which he maintained innocence but failed to ask any
questions about what had happened to wife or condition of
daughter, prosecutor could properly comment on defendant's
failure to ask appropriate questions that innocent party would
ordinarily ask); Commonwealth v. Lavalley, 410 Mass. 641, 648-
650 (1991), overruled on another ground by Commonwealth v. King,
445 Mass. 217 (2005) (where defendant in rape case testified at
trial that victim had made sexual advances to him, but omitted
that information in first statement to police, trial judge
properly instructed jury that if they found that defendant had
made false statements to police they could consider statements
as evidence of consciousness of guilt).
19
and the victim were on the floor near some shelves when he
struck most of the hammer blows, the forensic chemist saw no
visible blood in that area but found visible blood on a ceiling
fan and a wall clock. Most of the blood on the kitchen floor
was in a different area from where the defendant alleged that he
had fought with the victim and struck him with the hammer. The
medical examiner stated that the scrapes on the victim's hands
were "very small," "lacking any contusion around them," and that
there were no injuries to the victim's forearms; this is
contrary to what one might expect if the victim had engaged in a
protracted struggle with the defendant.11 And two witnesses who
saw the defendant later on Saturday, November 5, testified that
the defendant's demeanor was normal and that they did not notice
that he had any injuries. See Commonwealth v. Waite, 422 Mass.
792, 802 (1996).
Finally, the jury heard extensive evidence tending to show
the defendant's consciousness of guilt, including his efforts to
conceal the victim's body and the evidence of the crime; the
admittedly false text message sent to the victim's cellular
telephone making it appear as if the victim had not come to the
Churchill Street house on the morning of November 5; the
11The medical examiner testified that it was possible the
abrasions on the victim's right hand were caused by punching the
defendant, but that it was very unlikely given the absence of
any bruising.
20
defendant's departure from New Bedford; and, after being
discovered in Connecticut, his flight, efforts to hide, and
false statements to police. See Commonwealth v. Cassidy, 470
Mass. 201, 217 (2014) ("[e]vidence of flight, concealment, false
statements to police, destruction or concealment of evidence, .
. . or similar conduct generally is admissible as some evidence
of consciousness of guilt"); Barnoski, 418 Mass. at 537 n.8
(defendant's consciousness of guilt supported by "ample
evidence, other than the defendant's failure to go to police, of
the defendant's flight and concealment to justify this
instruction").
Given all of this other evidence, we conclude that the
prosecutor's improper references to the defendant's prearrest
silence would have played little if any role in the jury's
decision to reject the defendant's version of events.
Accordingly, we conclude there was no substantial likelihood of
a miscarriage of justice.
2. Prosecutor's statement in closing argument. During
closing argument, the prosecutor made the following statement:
"We now know that the defendant had a flurry of blows
on [the victim's] head, that he was not unconscious
for a period of time. And according to the defendant,
he was the one who knocked him out. He was down on
the ground. He was unconscious. That was the
defendant's opportunity to flee there. That was his
time to leave. All he had to do was walk out the door
of the house. He didn't do that. He chose to stay,
and he chose to strike [the victim] again and again
21
and again in the head with that hammer. And so [the
victim] breathes his last breath on the kitchen floor
. . . ."
Defense counsel did not object to this statement at trial. The
defendant argues on appeal that the prosecutor mischaracterized
the evidence, and thereby caused a substantial likelihood of a
miscarriage of justice. See Commonwealth v. Mello, 420 Mass.
375, 379–380 (1995).
We disagree. There was ample evidence to support the
prosecutor's statement that the defendant struck the victim with
the hammer again and again, and the defendant admitted as much.
The medical examiner testified that the victim had suffered a
total of nineteen lacerations to his scalp and that the victim's
injuries could have been caused by the hammer identified as the
murder weapon. Further, given the defendant's admission that
one of the hammer blows he struck rendered the victim
unconscious, the medical examiner's testimony that any of the
lacerations and fractures she found on the victim's head could
have been sufficient to do that, and her testimony that the
victim only had minor scrapes on his hands and no injuries on
his forearms where defensive wounds would be expected, it was
certainly open to the prosecutor to suggest that some of the
hammer blows were struck after the victim had lost
consciousness. See Commonwealth v. Roy, 464 Mass. 818, 829
(2013) ("In closing argument, '[p]rosecutors are entitled to
22
marshal the evidence and suggest inferences that the jury may
draw from it.' . . . Those inferences need only be reasonable
and possible" [citation omitted]).
The defendant's argument that the prosecutor
mischaracterized the evidence is based on the contention that
the prosecutor was recounting the defendant's testimony about
the altercation with the victim. This is not a fair
interpretation of the prosecutor's statement, where he cited
only the defendant's admission that he had knocked the victim
out, leaving him on the ground and unconscious. The prosecutor
was not reciting the defendant's entire story about the fight,
nor was he required to do so. Citing the defendant's admission
that he had knocked out the victim did not require the
prosecutor to accept the defendant's other testimony that he did
not strike the victim again while the victim was unconscious.
The prosecutor was free to argue to the jury that they could
rely on some of the defendant's admissions without being bound
by all of his testimony. See Commonwealth v. McInerney, 373
Mass. 136, 142-143 (1977) (jury may accept defendant's
admissions as true while still rejecting his accompanying
exculpatory statements as untrue).
3. Jury instructions on lesser included offenses. As a
general rule, "a defendant is entitled to an instruction on a
lesser included offense of the charged crime, when the facts
23
could support the lesser offense." Commonwealth v. Shelley, 477
Mass. 642, 643 (2017). Instructing the jury on the lesser
included offense "gives the jury a third option, beyond
acquittal or conviction" on the charged offense, and thus
"mitigates concern that a jury would return a guilty verdict for
the greater crime, even if they believe the prosecution has not
proved each element, because the jury believe that the
defendant's conduct warrants some form of punishment." Id. at
644.
The defendant contends that the judge's instructions on the
lesser included offenses to murder in the first degree were
defective because they supposedly failed to make it clear that
murder in the second degree and voluntary manslaughter are
lesser included offenses of murder in the first degree committed
with deliberate premeditation. The defendant's argument is
premised on two statements in the judge's instructions. First,
in the course of instructing the jury on murder in the second
degree, the judge said: "The requirements of proof for murder
in the second degree are the same as for murder in the first
degree with extreme atrocity or cruelty but without the element
that the killing was committed with extreme atrocity or
cruelty." The judge repeated this statement the next day in the
course of reinstructing the jury in response to their request
for "a definition of the various charges and conditions."
24
Second, while reinstructing the jury, the judge also said: "If
you look at those elements [of manslaughter] and compare it,
say, to the elements of second-degree murder, you'll find that
they are the identical element[s], except in second-degree
murder, the Commonwealth has to prove the absence of mitigating
circumstances." Because the first statement compared the
elements of murder in the second degree only with the elements
of murder in the first degree committed with extreme atrocity or
cruelty, but not with the elements of murder in the first degree
committed with deliberate premeditation, the defendant contends
that these statements misled the jury into believing that murder
in the second degree and voluntary manslaughter are lesser
included offenses only of murder committed with extreme atrocity
or cruelty, but not of murder committed with deliberate
premeditation. Consequently, the defendant argues that the jury
were not given the option of finding the defendant guilty of
murder in the second degree or voluntary manslaughter as lesser
included offenses of murder in the first degree committed with
deliberate premeditation.
We conclude that there was no error in the judge's
instructions. As an initial matter, both of the statements by
the judge are legally correct, as the defendant concedes. The
first statement is taken verbatim from the instruction on murder
in the second degree contained in the Model Jury Instructions on
25
Homicide at 58 (2013). It properly states that the elements of
murder in the second degree are the same as for murder in the
first degree with extreme atrocity or cruelty, except that the
former lacks the element of extreme atrocity or cruelty. See
id. at 43 (instruction for murder in the first degree with
extreme atrocity or cruelty). Likewise, the second statement is
correct because "[a] killing that would otherwise be murder in
the . . . second degree is reduced to the lesser offense of
voluntary manslaughter where the Commonwealth has failed to
prove that there were no mitigating circumstances." Id. at 64.
Furthermore, considered in their entirety and as a whole,
the judge's instructions plainly informed the jury they could
consider murder in the second degree and voluntary manslaughter
as lesser included offenses of murder in the first degree with
deliberate premeditation. See Commonwealth v. Bois, 476 Mass.
15, 26 (2016), quoting Commonwealth v. Young, 461 Mass. 198, 207
(2012) ("When reviewing jury instructions, '[w]e evaluate the
instruction as a whole, looking for the interpretation a
reasonable juror would place on the judge's words.' . . . We do
not consider bits and pieces of the instruction in isolation").
The verdict slip clearly listed "Guilty of the lesser
included offense of Murder in the Second Degree" and "Guilty of
the lesser included offense of Manslaughter" as options for the
jury to consider, following the options of not guilty, and
26
guilty of murder in the first degree on each of the three
theories (deliberate premeditation, extreme atrocity or cruelty,
and felony-murder).12 Moreover, when the judge described the
verdict slip to the jury at the outset of his instructions on
homicide, he specifically identified murder in the second degree
and manslaughter as lesser included offenses of murder in the
first degree under the theories of both deliberate premeditation
and extreme atrocity or cruelty. Given this context, it was
sufficiently clear to the jurors that they could consider murder
in the second degree and manslaughter as lesser included
alternatives to murder in the first degree with deliberate
premeditation.
4. Review under G. L. c. 278, § 33E. We have reviewed the
entire record pursuant to our obligation under G. L. c. 278,
§ 33E, and conclude that there are no grounds for reversing the
defendant's convictions or for granting any other relief.
12Insofar as the judge's instruction and the verdict slip
suggested that "traditional" murder in the second degree was a
lesser included offense of felony-murder in the first degree,
the defendant received an instruction beyond what he was
entitled to receive, because at the time of trial murder in the
second degree based on malice was not a lesser included offense
of felony-murder in the first degree. See Commonwealth v. Bell,
460 Mass. 294, 307 n.19 (2011) (distinguishing between
"'traditional' murder in the second degree based on malice, and
felony-murder in the second degree based on a felony not
punishable by life imprisonment"). But see Commonwealth v.
Brown, 477 Mass. 805, 807 (2017) (in trials commencing after
date of opinion, defendant may not be convicted of felony-murder
without proof of one of the three prongs of malice).
27
Judgments affirmed.