Commonwealth v. Niemic ( 2019 )

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SJC-12436
COMMONWEALTH vs. JONATHAN NIEMIC.
Bristol. April 5, 2019. - November 19, 2019.
Present: Gants, C.J., Lenk, Lowy, Budd, & Cypher, JJ.
Homicide. Constitutional Law, Double jeopardy. Practice,
Criminal, Double jeopardy, Verdict, Witness, Argument by
prosecutor, Instructions to jury, Capital case. Evidence,
Rebuttal, Impeachment of credibility, Medical report,
Argument by prosecutor. Witness, Impeachment. Jury and
Jurors.
Indictment found and returned in the Superior Court
Department on December 9, 2010.
Following review by this court, 472 Mass. 665 (2015), the
case was tried before Renee P. Dupuis, J.
Theodore F. Riordan (Deborah Bates Riordan also present)
for Jonathan E. Niemic.
Tara L. Johnston, Assistant District Attorney, for the
Commonwealth.
LENK, J. In 2012, the defendant was convicted of murder in
the first degree on a theory of extreme atrocity or cruelty in
the stabbing death of Michael Correia on October 20, 2010.
2
Following the defendant's appeal from that conviction, we
remanded the matter to the Superior Court, where the
Commonwealth was given the option either of vacating the
conviction and retrying the defendant on the murder indictment,
or accepting a reduction of the verdict to manslaughter. See
Commonwealth v. Niemic, 472 Mass. 665, 667, 679 (2015) (Niemic
I). The Commonwealth elected to pursue a new trial. At that
trial, with a different judge presiding, another attorney for
the defendant, and the same prosecutor, the jury convicted the
defendant of murder in the first degree on theories of
deliberate premeditation and extreme atrocity or cruelty.
In this appeal, the defendant argues that a new trial is
required because of four asserted errors at his second trial: a
violation of the protection against double jeopardy in pursuing
the theory of deliberate premeditation, where the jury at the
first trial had not checked the "guilty" box on the verdict slip
for that theory; erroneously admitted testimony of a rebuttal
witness, which later was treated as substantive evidence by the
Commonwealth; improperly introduced testimony by a substitute
medical examiner as to facts in the autopsy report; and a number
of improprieties in the prosecutor's closing argument, including
an issue repeated from the defendant's first trial. The
defendant also asks us to exercise our authority under G. L.
c. 278, § 33E, to reduce the degree of guilt or to order a new
3
trial.
We conclude that errors in the closing argument alone, both
that are reprised from the first trial and those newly
introduced, would require a new trial. To the extent that this
may be a close question, that determination is buttressed by
other issues that emerged on our review pursuant to G. L.
c. 278, § 33E. Accordingly, the defendant's conviction of
murder in the first degree shall be vacated and set aside. On
remand, the Commonwealth shall once again be given the option
either of accepting a reduction in the verdict to manslaughter,
or of retrying the defendant.
Should the Commonwealth again choose to pursue the latter
path, we recognize the costs that a third trial would occasion,
on the parties, the witnesses, the victim's family, and the
court. We are nonetheless constrained to conclude that a new
trial is necessary unless the Commonwealth decides to accept a
reduced verdict. See Commonwealth v. Kater, 388 Mass. 519, 534
(1983), S.C., 394 Mass. 531 (1985), 409 Mass. 433 (1991), 412
Mass. 800 (1992), and 432 Mass. 404 (2000).
1. Background. We recite the facts as the jury could have
found them, in the light most favorable to the Commonwealth,
reserving certain details for later discussion. The victim was
stabbed five times; any one of the wounds could have been fatal.
The defendant testified at trial that he had stabbed the victim;
4
the primary issue before the jury was whether he had done so in
self-defense. The theory of defense was that the older, taller,
and heavier victim initiated a fist fight, and then pulled out a
knife; the defendant managed to wrench the knife from the victim
and swung wildly to fend off the victim.
a. Facts. In the summer of 2010, the defendant was
twenty-two years old and living in a halfway house in New
Bedford for individuals who were recovering from alcohol and
drug abuse. He was dating Lisa Weaver, who lived at a different
sober house in New Bedford. During his time at the halfway
house, the defendant befriended his roommates, James Nason and
Nathan Goodwin. The defendant also introduced Nason to his
friend Kari Wright, and the two began dating.
In August of 2010, the defendant left town for
approximately two months. When he returned, he moved in with
his grandmother in New Bedford. While he was away, the
defendant wrote Weaver two love letters describing how "perfect"
she was, and how he missed her and imagined them being together.
At the same time, however, Weaver and the victim1 appeared to
have begun a romantic relationship; they were seen in public on
a number of occasions flirting, holding hands, and kissing.
The defendant returned to New Bedford in October 2010. A
1 The victim was then thirty-four years old.
5
few days before the stabbing, Nason told the defendant about the
relationship between Weaver and the victim. Nason also said
that the victim had referred to the defendant as a "punk," and
had bragged that the victim "could take any girl away from [the
defendant]." The defendant told Nason that when they next met,
he would punch the victim in the head.2 A friend of Weaver, who
was her roommate at the sober house, testified that, at some
point a few days prior to the stabbing, the defendant had
appeared at an alcoholics anonymous (AA) meeting looking for the
victim.
On October 19, 2010, Weaver, Wright, and Nason picked up
the defendant in a sport utility vehicle (SUV) belonging to
Wright's mother. Weaver and the defendant embraced when they
saw each other, and sat together in the rear seat. At some
point, Wright heard the defendant angrily asking, with reference
to an unknown topic, "Why didn't you tell me that?" The group
spent the day at Wright's parents' house, where the relationship
between Weaver and the defendant seemed affectionate, as usual.
The group left so that Weaver could get back to the sober house
before her 11 P.M. curfew. They planned to meet the following
day to paint a property in Abington that belonged to Weaver's
2 The defendant was interested in becoming a professional
fighter, and for "a couple of" months had been working out at a
gym, training on punching the heavy bag.
6
parents.
On October 20, 2010, at approximately 3 P.M., the
defendant, Weaver, Nason, and Wright arrived at the building in
Abington, and painted until 6:30 P.M., when it got dark. They
left intending to return to New Bedford. En route, Weaver
realized that she did not have her house key. She then
remembered that some of her housemates would be attending an AA
meeting at a soup kitchen at New Bedford, which regularly took
place from 7 P.M. until 8:30 P.M. on Wednesdays, and decided
that she could later enter the sober house with them. The four
thus headed to the soup kitchen. On the way, the defendant
asked Nason to stop at the side of the road because he had to
urinate, but Wright would not allow this, as neither she nor
Nason had a valid driver's license, and she did not want Nason
to be caught at the side of the road if any police officers
passed by.
Between seventy and one hundred twenty people attended the
meeting that evening. The defendant, Weaver, Nason, and Wright
reached the soup kitchen shortly before the usual break between
7:30 and 7:45 P.M., when many people would go outside to smoke.
Nason parked approximately 200 yards from the front door.
Wright remained in the vehicle, while the others headed to the
soup kitchen. They encountered their former roommate Goodwin
standing outside. Nason and the defendant chatted with Goodwin
7
for approximately five minutes, and then went inside to use the
restroom. Weaver also went into the building to use the
restroom, and then joined the crowd outside.
When the defendant and Nason returned to the vehicle, the
break had begun and numerous meeting participants were heading
outside. Nason pointed out to the defendant that the victim was
at the meeting, and then returned to the SUV.
At that point, approximately eighty people were outside, in
a small, crowded area. The victim and Goodwin were standing
approximately fifteen feet from the entrance to the soup
kitchen, looking at something on a cellular telephone. The
defendant went over to talk to Weaver, who was standing on the
corner near a crosswalk approximately thirty feet away from the
victim. Nason moved the SUV closer to the crosswalk, and stayed
inside with the vehicle idling. The defendant gestured to the
victim, indicating that he wanted to talk. The victim
apparently held up a finger, in a "just a minute" gesture. The
defendant gave Weaver "a quick goodbye kiss." She seemed
"concerned" and appeared to try to "pull[] him back" from
talking to the victim, and then the defendant and Weaver kissed
again.3 At some point, the defendant pulled the hood of his
3 The evidence as to the extent of physical contact between
the defendant and Weaver, like much other testimony, differed
widely, ranging from descriptions of talking only, to a brief
goodbye kiss or a peck on the cheek, to more protracted kissing
8
sweatshirt up. He crossed the street and opened the rear
passenger door of the SUV as though he were about to get in, but
then left the door slightly ajar and walked over to the victim.4
The defendant said, "I've been hearing some things. I feel
disrespected"; the victim asked what the defendant had heard.
The defendant began punching the victim, aiming at his head,
while the victim attempted to ward off the blows.5 The defendant
tried to hold the victim in a headlock, but the victim broke
free. At some point, the victim lifted his arms up with his
palms facing outward and said something to the effect of, "What?
Are you going to use a knife?"6 The defendant lunged at the
or hugging before and as the defendant was heading away, when
Weaver grabbed him by the arm and pulled him back.
4 Multiple witnesses testified for the Commonwealth and also
during the defendant's case. Their descriptions of events
surrounding the confrontation varied widely, even among
witnesses for the Commonwealth. As with much of the other
testimony about the confrontation, the testimony on this point
was conflicting. Only two of the ten witnesses who described
the events mentioned the defendant as going over to the SUV and
then returning to the victim; none of the other witnesses
testified that the defendant went to the SUV before he
approached the victim. We present the testimony in the light
most favorable to the Commonwealth.
5 Wright noticed the altercation and got out of the SUV to
break up the fight, but dropped her cellular telephone, and its
battery fell out. By the time she had retrieved the battery and
the telephone, the defendant was getting into the rear seat of
the SUV, so Wright returned to the front seat.
6 Both the defendant and the victim were known at times to
have carried knives. The knife used in the stabbing had a black
9
victim four to five times. The victim ran into the soup
kitchen. The defendant chased him into the building. About
twenty seconds later, the defendant ran out of the building and
into the SUV; the vehicle then was driven away.7
Bystanders carried the victim, who was saying that he had
been stabbed and that someone should telephone 911, upstairs to
the meeting hall and tried to render first aid. His father was
present. Emergency medical technicians (EMTs) arrived within a
few minutes. The victim lost consciousness shortly thereafter.
He was taken to a hospital by ambulance, where physicians
attempted emergency surgery, but their efforts were unsuccessful
and the victim was pronounced dead. He had suffered five stab
wounds, any one of which could have been fatal. The two wounds
on the left side of the chest had penetrated the heart, and a
wound to the lower right side had perforated the liver. The
handle and a black blade, different from the knife the defendant
had been known to carry, but both were "flick" knives.
7 A number of witnesses testified that when the defendant
initially confronted the victim, the victim threatened to stab
the defendant or punched him in the head. The defendant
testified that the victim threatened to stab him, and then
quickly punched him on the side of his head, before reaching
down into a pocket and pulling out a knife. The defendant
wrenched the knife away, while the victim continued to attack
the defendant. The defendant then started swinging wildly with
the knife. Other witnesses said that there was a "fist fight"
and they could not see who threw the first punch. After a
flurry of punches, the victim eventually backed off, and the
defendant ran to the SUV.
10
fourth and fifth wounds were to the back and the lateral part of
the chest. The victim was determined to have died within
minutes of the stabbing.
Meanwhile, the SUV, with Nason driving, headed toward the
highway. The defendant noticed that he had blood on his hands.
Wright also noticed the blood and that the defendant had a small
black folding knife in his lap. The defendant told the others
that he had been in a fight with the victim, he thought he had
stabbed the victim, and he hoped the victim was "ok." The
defendant wanted to go to his grandmother's house, but Wright
told Nason to drop him off at a grocery store in Fairhaven. The
defendant threw the knife out the window near the exit to the
grocery store.
When they reached the grocery store parking lot, the
defendant cleaned the blood from his hands, with Wright's help,
using one of her tank tops that had been in the back of the SUV.
He discarded the tank top in the parking lot. The others headed
to Wright's parents' house, and the defendant waited at the
grocery store until his grandmother picked him up.
At 8:30 P.M., the defendant and his grandmother went to the
home of John Voisine, the stepfather of a close friend of the
defendant's. The defendant borrowed some clothes from Voisine,
11
and remained in his apartment for approximately four hours.8 The
defendant told Voisine he had been in a fight with the victim,
that he was worried the victim might be dead, and that he had
not intended to harm the victim, but had been acting in self-
defense. The defendant left sometime before midnight.
That evening, police interviewed multiple witnesses. They
investigated the grocery store parking lot and discovered a
discarded tank top covered with blood. In a grassy area near
the highway, police found a small black folding knife, covered
with red-brown stains. Around midnight, officers went to
Voisine's apartment. The defendant was not in the apartment,
but officers eventually found him under a set of exterior stairs
and arrested him.9
Deoxyribonucleic acid from the blood on the knife handle,
the blade, and the tank top contained a mixture of two profiles,
with the "major profile" matching the defendant's; the minor
profile on the tank top did not match the victim's. The victim
was a potential contributor to the minor profile on the knife
handle and the blade. The major profile of the stains on the
8 The defendant later testified that he went to Voisine's
house to use heroin, as that was the only thing he could think
to do at the time.
9 The defendant had one cut on his right hand and three on
his left hand.
12
jeans that the defendant had been wearing, which were found at
Voisine's house, matched the defendant's.
The defendant called a number of witnesses, and also
testified on his own behalf. Several defense witnesses
testified that when the defendant initially confronted the
victim, the victim threatened to stab the defendant.10 The
victim then punched the defendant on the side of his head,
before reaching down and pulling out a knife. The defendant
wrenched the knife away, while the victim continued to attack.
The defendant ultimately was able to run to the SUV.
b. Prior proceedings. In December 2010, the defendant was
indicted on a charge of murder in the first degree, G. L.
c. 265, § 1. After an eight-day trial in June 2012, a Superior
Court jury found the defendant guilty of murder in the first
degree on a theory of extreme atrocity or cruelty. In September
2015, after review of the defendant's direct appeal by this
court, the matter was remanded to the Superior Court for entry
of a reduced verdict of guilty of voluntary manslaughter or a
new trial, as the Commonwealth preferred. See Niemic I, 472
Mass. at 667, 679.
Prior to the defendant's second trial, he moved to preclude
10Nason also testified that, a few months prior to this
incident, the victim had threatened to "slice" the defendant if
they saw each other again, and then later apologized to the
defendant for making the threat.
13
the Commonwealth from pursuing the theory of deliberate
premeditation, and later filed a motion to dismiss the charge of
murder in the first degree on that theory. Both motions were
denied. After a ten-day trial in September 2016, tried by the
same prosecutor11 but with different defense counsel and before a
different judge, a jury convicted the defendant of murder in the
first degree on theories of deliberate premeditation and extreme
atrocity or cruelty.
2. Discussion. In this direct appeal, the defendant
maintains that a new trial is required due to a violation of the
protection against double jeopardy in pursuing the theory of
deliberate premeditation after a purported acquittal. He also
claims error in the introduction of impeachment testimony of a
rebuttal witness, which was later treated as substantive
evidence by the prosecutor; impermissible testimony by a
substitute medical examiner; and a number of improprieties in
the prosecutor's closing argument. We consider each issue in
turn.
a. Double jeopardy. At his first trial, the defendant was
convicted of murder in the first degree on a theory of extreme
atrocity or cruelty. The jury checked the guilty box on the
verdict slip for this theory, the foreperson presented it as the
11 The second chairs, who did not argue, differed.
14
theory underlying the conviction, and the jurors all agreed that
they found the defendant guilty under that theory. See
Niemic I, 472 Mass. at 666. On the verdict slip concerning
murder on a theory of deliberate premeditation, the jury checked
neither the "guilty" nor the "not guilty" box. The foreperson
also made no reference to the theory of deliberate premeditation
when responding to the session clerk in announcing the verdict.
At the second trial, the defendant was convicted on both
theories.
The defendant now contends that the jury found him not
guilty of murder on a theory of deliberate premeditation at his
first trial, based on their failure to check that box.
Therefore, he claims, it was a violation of the double jeopardy
clause of the Fifth Amendment to the United States Constitution
to have retried him on that theory a second time.
This court repeatedly has declined to accept a jury's
failure to mark one of the theories of a charge as an acquittal
on that theory. See Commonwealth v. Carlino, 449 Mass. 71, 78-
79 (2007), and cases cited; Commonwealth v. Nardone, 406 Mass.
123, 132-134 (1989); Commonwealth v. Preston, 393 Mass. 318,
320, 325 n.8 (1984). Courts in other jurisdictions also have
determined that retrial is not barred in such circumstances.
See United States v. Ham, 58 F.3d 78, 84-86 (4th Cir.), cert.
denied, 516 U.S. 986 (1995); Beebe v. Nelson, 37 F. Supp. 2d
15
1304, 1307-1308 (D. Kan. 1999); State v. Pexa, 574 N.W.2d 344,
347 (Iowa 1998). We see no reason to disturb our well-
established precedent in this case.
The defendant argues further that because silence was
interpreted as "no" with respect to the absence of a response to
a question to the venire during empanelment (when no members of
the venire raised their hands in response to some of the judge's
questions), silence likewise must be interpreted as "no" in the
context of unmarked boxes on the verdict slip. We do not agree.
There is no indication that the jury were aware that
silence on a particular theory would be deemed an acquittal.
Rather, they were told that they had to be unanimous in deciding
whether the defendant was guilty or not guilty, and that the
foreperson was "simply to put an X or a check mark next to the
appropriate verdict and then sign it certifying that it's
unanimous." They were instructed further that, if they found
the defendant guilty, they had to be unanimous as to which of
the "two types of murder in the first degree [they found]. . . .
[I]t can be one, or the other, or both."
We cannot ascertain by the jury's silence on the theory of
deliberate premeditation whether they actually reached a
unanimous decision to acquit the defendant on that theory. By
contrast, we do know definitively that the first jury were
unanimous in their conviction on a theory of extreme atrocity or
16
cruelty at the first trial. Thus, retrial on the theory of
deliberate premeditation was not error.
b. Rebuttal testimony. Toward the end of trial, after the
defendant had rested his case, the Commonwealth recalled Wright
as a rebuttal witness.12 Over the defendant's objection, she
testified that, as the defendant approached the victim, Nason
said "[the defendant] wants to sucker Mikey [(the victim)].
Sucker punch Mikey." While the testimony was admitted for the
limited purpose of impeaching Nason's credibility, neither party
requested a limiting instruction.13
12At the beginning of trial, the judge conducted a hearing
on the defendant's motion in limine to introduce certain
statements made in the SUV by the defendant after the stabbing.
The judge then ordered the statements excluded on the
representation of the prosecutor that the Commonwealth would not
be seeking to introduce any of the other statements made by the
occupants of the vehicle. On direct examination by the
defendant, Nason testified that, on the evening of the stabbing,
he was not expecting a physical confrontation between the
defendant and the victim when the defendant headed toward the
victim. On cross-examination, Nason testified that, several
days earlier, the defendant had told Nason that the next time he
saw the victim, he was going to "punch [the victim] in the
head." Nason added that he had not believed that the defendant
intended to act on the statement, which Nason viewed as
something "everybody says." On further questioning, Nason
testified that he did not remember having told Wright, while
they were in the SUV, that the defendant planned to "sucker
punch" the victim. After the defense rested, the judge then
allowed the prosecutor to recall Wright to impeach Nason's
testimony with her own recollection of his prior inconsistent
statement.
13Before her final charge, on her own initiative, the judge
instructed the jury on the limited purpose for which they could
consider Wright's rebuttal testimony that Nason told her the
17
The defendant now challenges the admission of Wright's
testimony as reversible error on the ground that it was
irrelevant and impermissible hearsay.14 Because the statements
concerned the core issue at trial of the defendant's intent in
approaching the victim -- in the defendant's words, "the most
important issue in the case" -- the defendant maintains that
their improper admission constituted prejudicial error. We do
not agree.
There was no error in the introduction of Wright's rebuttal
testimony that the defendant wanted to "sucker punch" the victim
in order to impeach Nason's testimony. The testimony had the
potential to undermine Nason's credibility in the eyes of the
jury, given Nason's testimony on cross-examination that he did
not recall telling Wright the defendant had wanted to sucker
punch the victim, and, indeed, believed that the defendant
defendant intended to "sucker punch" the victim. See part 2.d,
infra.
14Because the defendant objected at trial to the
introduction of the rebuttal testimony, we review for
prejudicial error. See Commonwealth v. Barbosa, 477 Mass. 658,
673 (2017), citing Commonwealth v. Canty, 466 Mass. 535, 545
(2013) (reviewing for prejudicial error where objection was
preserved). "An error is not prejudicial if it 'did not
influence the jury, or had but very slight effect'; however, if
we cannot find 'with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error,'
then it is prejudicial." Canty, supra, quoting Commonwealth v.
Cruz, 445 Mass. 589, 591 (2005).
18
approached the victim simply to talk. See Commonwealth v. Pina,
430 Mass. 66, 76 (1999), overruled on another ground by
Commonwealth v. Colon, 482 Mass. 162 (2019). Testimony
reporting a prior out-of-court statement that "tend[s] to
contradict [the declarant's] testimony . . . [is] admissible"
for purposes of impeachment.15 Id., quoting Commonwealth v.
Cataldo, 326 Mass. 373, 377 (1950). See Mass. G. Evid.
§ 613(a)(2), (3) & note (2019). "Although there is discretion
involved in determining whether to admit or exclude evidence
offered for impeachment, when the impeaching evidence is
directly related to testimony on a central issue in the case,
there is no discretion to exclude it." Mass. G. Evid.
§ 613(a)(4) note, citing Commonwealth v. McGowan, 400 Mass. 385,
390-391 (1987).
The rebuttal testimony was particularly important here for
two reasons. First, as the defendant argues, it concerned the
seminal issue in the case: the defendant's intent at the time
he approached the victim. Secondly, the evidence of that intent
rested in large part on the jury's view of the witnesses'
credibility, in a case in which almost all the witnesses
described the events in significantly different ways, many had
15Under certain conditions, not present here, a prior
inconsistent statement made under oath may be admissible not
just to impeach a declarant's trial testimony, but also for its
truth. See Mass. G. Evid. § 801(d)(1)(A) (2019).
19
known the victim, the defendant, or both, and many were
vulnerable to impeachment. Both Wright, the Commonwealth's
primary witness,16 and Nason, who testified for the defense, had
been friends of the defendant. Both had been present in the SUV
with the defendant driving to the soup kitchen, and driving away
after the stabbing, thus leaving either of them open to possible
impeachment.17
Although there was no error in the introduction of the
rebuttal testimony for impeachment purposes, the later use of
the statement as substantive evidence in closing is another
matter. See part 2.d, infra.
c. Autopsy report. The defendant challenges the
introduction of information in the autopsy report that was
introduced by a substitute medical examiner. The Commonwealth
filed a motion in limine to introduce the testimony of Dr. Henry
16There was evidence from which the jury could have
concluded that Wright's testimony was not unbiased and she had a
reason to cooperate with the prosecution. The defendant used
Wright's tank top, which she had handed to him, to clean blood
from his hands, and she helped him to do so by pouring water on
them. Wright testified that, within minutes after she and Nason
returned to her parents' house from dropping the defendant at
the grocery store, police arrived. She and Nason accompanied
the officers to the police station, where she remained until
3 or 4 A.M. At the station, police took photographs, swabbed
her hands and took a sample of her deoxyribonucleic acid.
17Moreover, although Wright testified at the second trial
that she and Nason were at that point broken up, the two had
remained in an "on and off" romantic relationship "for years"
and had two children together.
20
Nields, a substitute medical examiner, as the original medical
examiner, Dr. William Zane, was unavailable at the time of
trial. The defense objected to the use of a substitute due to a
concern that the defendant would be unable to elicit testimony
from Zane that the victim had had an injury to his lip, which
defense counsel viewed as supporting the theory that the
encounter began as a fist fight.
The Commonwealth offered either to stipulate to Zane's
prior testimony or to conduct a video-recorded deposition that
could be played at trial, rather than to rely on Nields's
testimony. The defendant rejected both of these options.
Before Nields testified, the judge reminded both parties of the
limitations on permissible testimony when using a substitute
medical examiner, and reminded defense counsel that he had a
duty to object individually to each question he thought violated
the limitations on the introduction of underlying facts from the
autopsy report.
Defense counsel did not object to the prosecutor's
questioning of Nields, nor to the introduction of the answers
elicited directly from the autopsy report. Indeed, the evidence
from the autopsy report was introduced after defense counsel
stated explicitly, with respect to a question from the
Commonwealth about an injury to the victim's mouth that was not
clearly visible on the autopsy photographs, that he had no
21
objection to evidence from the autopsy report being introduced
on that particular issue. On appeal, however, the defendant
challenges the introduction of two different sets of facts from
the autopsy report, as well as the prosecutor's emphasis on the
improperly admitted evidence in his closing argument.18 In
particular, the defendant points to information on the height
and weight of the victim and the depth and nature of the
victim's wounds.
Nields testified, in response to an unobjected-to question
from the prosecutor specifically asking about the content of the
autopsy report, that the autopsy report described the victim as
being five feet, eight inches tall, and weighing approximately
one hundred and seventy-five pounds. This evidence touched upon
an important component of the defense strategy: the defendant
argued that he had been intimidated by the victim because the
victim was ten years older, and taller and heavier than the
defendant, in addition to being known to be aggressive ("a
bully"). The defendant contends, therefore, that Nields's
testimony created a substantial likelihood of a miscarriage of
18Defense counsel also did not object when the prosecutor
relied heavily upon the information from the autopsy report in
his closing. See part 2.d, infra.
22
justice because it undermined the defense argument that the
defendant was smaller than the victim.19
We need not address the extent to which a substitute
medical examiner who did not perform the autopsy may testify to
the facts contained in the underlying autopsy report. Even if
this evidence were improperly admitted, where it is cumulative
of other, properly admitted evidence, there is no substantial
likelihood of a miscarriage of justice. See Commonwealth v.
Reavis, 465 Mass. 875, 884 (2013); Commonwealth v. Rogers, 459
Mass. 249, 268, cert. denied, 565 U.S. 1080 (2011). Here, other
properly admitted evidence about the victim's height and weight
placed essentially the same information before the jury. That
evidence included testimony by Dr. Richard T. Miller, a surgeon
who was called to the emergency room to perform an emergency
thoracotomy on the victim; 20 one of the witnesses to the
19There was testimony that the defendant was six feet tall
and weighed two hundred pounds, but there also was testimony
that the defendant was smaller and thinner than the victim,
maybe five feet, eight inches tall.
20 Miller testified,
"I -- difficult to say. He was being resuscitated on a
trauma stretcher on a gurney in the emergency room. I
would say he -- my impression was he was an average-sized
individual, under six feet tall, somewhere between one
hundred and sixty and one hundred and eighty pounds.
That's my best recollection."
The prosecutor then asked Miller if he had been able to "refresh
[his] memory" by reviewing the autopsy report. When Miller
23
stabbing who testified that he believed the defendant and the
victim were "[a]bout the same height;" and a friend of the
victim who testified that the victim was shorter and wider than
his own six feet and one hundred and ninety-five pounds.
The defendant also challenges the introduction of
information from the autopsy report describing the victim's
wounds and stating that the wounds were three to four inches
deep, information which was not evident from the autopsy
photographs that Nields properly had relied upon earlier in his
testimony. The information about the wounds was introduced by
the prosecutor's unobjected-to specific questions as to the
contents of the autopsy report.
Generally, where a defendant relies on erroneously admitted
facts contained in an autopsy report to challenge the
Commonwealth's theory of guilt, there is no substantial
likelihood of a miscarriage of justice by the prosecutor's
reliance on facts from the same report. See Commonwealth v.
McGowen, 458 Mass. 461, 481-482 (2010). See also Commonwealth
v. Nardi, 452 Mass. 379, 395-396 (2009). Such is the case here.
In his closing, defense counsel relied upon the challenged
responded that he had, the prosecutor asked if the contents of
the report were consistent with Miller's memory and Miller
responded that they were, thus again introducing, albeit
cumulative of other assumedly improper testimony, the contents
of the autopsy report.
24
testimony regarding the depth of the wounds. He argued that the
nature of the wounds, and their depth, showed that the defendant
inflicted the fatal wounds to the heart while he swung wildly in
self-defense, trying to push the victim off and that the victim
died instantly. Counsel focused as well on the injury to the
victim's mouth, likely inflicted by a fist (termed "the busted
lip" by the prosecutor), which counsel argued showed that the
confrontation had begun with a fist fight.
Moreover, Miller, the emergency room surgeon, testified
that, ordinarily, a human heart lies between four and six inches
below the surface of the chest, and that the victim's heart had
been penetrated. One of the witnesses who saw the encounter
also testified that at first he saw someone wearing a "hoodie"
punching with nothing in his hand, and later saw the man holding
what looked like a "blade, four or five inches long." This
would have allowed the jury to infer, from properly admitted
evidence, that the blade of the knife went four inches into the
victim's body.21 See Rogers, 459 Mass. at 268.
d. Prosecutor's closing argument. The defendant contends
that there were multiple improprieties in the prosecutor's
21Defense counsel himself interrupted the prosecutor at one
point to emphasize that, based on the autopsy report, the "three
to four" inch depth of the wound was from the surface of the
skin to the heart, not the depth of the cut in the heart itself.
25
closing argument, some reprising errors that contributed to the
remand for a new trial in Niemic I. In particular, the
defendant points to the prosecutor's reliance on Wright's
rebuttal testimony as though it were substantive evidence, and
the reappearance, albeit in a more nuanced form, of the appeals
to jury sympathy and suggestions that the defendant's testimony
was not actual evidence,22 both of which we deemed impermissible
in reviewing the prosecutor's closing in Niemic I.
At his second trial, the defendant objected to the first
two issues. When the prosecutor finished his closing on
retrial, defense counsel argued that no instruction could
ameliorate the damage caused by the substantive use of the
rebuttal testimony and the improper play to juror sympathy, and
that a mistrial should be declared.
We consider first whether the arguments were improper, and,
if so, whether, in the context of the trial as a whole, the
impropriety or combination of improprieties requires a new
trial. Given all the circumstances, we conclude that the
22Notwithstanding that our remand in Commonwealth v.
Niemic, 472 Mass. 665 (2015) (Niemic I), was based in part on
the prosecutor's unobjected-to suggestions in closing that the
defendant's testimony was not evidence, at the second trial
defense counsel again did not object when the prosecutor made a
number of statements that were virtually identical to those
sharply criticized at the first trial. Given the result we
reach on the other issues, we need not address the extent to
which these statements alone may have resulted in a substantial
likelihood of a miscarriage of justice.
26
improprieties in the prosecutor's closing alone warrant a new
trial. That conclusion is further reinforced when other errors
that emerged during our review under G. L. c. 278, § 33E, are
considered in conjunction with the challenged errors.
i. Substantive use of rebuttal testimony. At four points
in his closing, the prosecutor referenced Wright's testimony
concerning Nason's statement that the defendant was going to
"sucker punch" the victim when he left the SUV. Three of these
were used substantively, and one was used properly for
impeachment purposes.23 Three times, woven throughout his
closing, the prosecutor relied on the statement to argue that
the defendant clearly intended to assault the victim, not to
talk to him and resolve any issues, when the defendant
approached.24
The prosecutor maintained further, as the judge commented,
23The prosecutor's fourth reference to Wright's rebuttal
testimony, made in the context of his vigorous efforts to
discredit several witnesses who testified that the victim threw
the first punch, was properly used for impeachment purposes.
The prosecutor argued that Nason and the defendant had testified
that the victim "land[ed] a punch on the defendant," and
contrasted that with Wright's testimony that Nason told her the
defendant was going to "sucker punch" the victim; the
prosecutor asked, "Is she making that up? Is she not credible?
What does that say to you about who is the aggressor?"
24On appeal, the Commonwealth concedes that the substantive
use of Wright's testimony in the prosecutor's closing was error,
but states that this error did not result in a substantial
likelihood of a miscarriage of justice.
27
"very effectively," that the defendant had gone to the soup
kitchen with a "purposeful plan" to attack the victim, and that
his own words proved the confrontation was planned, rather than
an unexpected fight in which the defendant stabbed in self-
defense. Indeed, the prosecutor's use at closing of the
statement as substantive evidence was so emphatic that, after
the prosecutor's closing, the judge noted sua sponte that the
statement went to the "seminal" issue at trial (the defendant's
intent when he went over to the victim), that she thought
Wright's testimony had been introduced only for rebuttal
purposes, and that she was going to give a limiting instruction
to that effect. Immediately before her final charge, the judge
instructed the jury accordingly.25
Improper argument by a prosecutor can be harmless error
where confined to collateral issues and accompanied by a
25 The judge instructed:
"Ms. Wright was called this morning in rebuttal, and she
testified about a statement that she alleged Mr. Nason made
to her about -- that he, Mr. Nason, told her that the
defendant was going to sucker [the victim]. The only
reason that that testimony was admitted, and we'll talk
about this a little bit later on, was to impeach Mr.
Nason's testimony. That's the only reason it was allowed
in, and I'll talk to you about impeachment. You may not
consider that evidence from Ms. Wright this morning for any
other purpose than impeaching Mr. Nason's testimony. You
may not specifically consider it or attribute it in any way
to the defendant and his state of mind."
28
curative instruction. Commonwealth v. Shelley, 374 Mass. 466,
470 (1978), S.C., 381 Mass. 340 (1980), and 411 Mass. 692
(1992). The prosecutor's repeated use of what had been admitted
for a limited purpose as substantive evidence here, however,
undermined the heart of the defense, "namely, the defendant's
credibility as to who was the initial aggressor, who produced
the knife, and whether the defendant acted in self-defense."26
Niemic I, 472 Mass. at 677. The improper references to the
testimony as substantive evidence during closing argument could
not but have had an effect upon the jury. See part 2.v, infra.
Contrast Commonwealth v. Giguere, 420 Mass. 226, 234-235 (1995).
ii. Appeals to juror sympathy and emotion. The defendant
argues that in his closing the prosecutor improperly appealed to
the jury's sympathies, thus replicating an error in Niemic I
that contributed to the need for a new trial. See Niemic I, 472
Mass. at 675. The Commonwealth concedes that, rather than
steering a wide berth around this error on retrial, the
prosecutor relied on virtually the same language on a number of
occasions. Notwithstanding this court's decision in Niemic I,
supra, the Commonwealth argues that the language was not an
26We are cognizant that here, as with other testimony that
had been excluded or was inadmissible, it was defense counsel's
own questions that resulted in the introduction of the
previously excluded statement, with apparently significant
harmful effect on his client.
29
improper appeal to sympathy, but, rather, was "entirely
appropriate." Alternatively, the Commonwealth maintains that,
in "context," no reasonable juror would have drawn the inference
from the challenged statements that the prosecutor was appealing
to sympathy or saying that the defendant's testimony was
inherently incredible. The Commonwealth also suggests that the
asserted improprieties were relatively minor in scope in
comparison to the percentage of the closing that they
encompassed in Niemic I; in the Commonwealth's view, "only four"
remarks by the prosecutor are at issue. While certain specific
statements were not reiterated in the prosecutor's second
closing,27 the emphasis on the impermissible arguments was not
any less "hard driving and sustained" on "critical aspect[s] of
the case."28 Id. at 677. The impact of the closing on the jury
27Many of the detailed statements about the efforts to
render aid to the victim, by attendees at the meeting, by the
EMTs, and at the hospital, that this court had criticized in
Niemic I, were instead made in the prosecutor's opening
statement at the retrial, and mentioned more briefly in his
closing argument.
28As he had in Niemic I, "[t]oward the end of his argument
the prosecutor focused on the Cunneen factors that must be
considered on the question of extreme atrocity or cruelty."
Niemic I, 472 Mass. at 675. "This part of the prosecutor's
closing was very powerful, and proper. The prosecutor should
have stopped there." Id. Thereafter, "[t]he improper comments
at the end of the closing comprised a structural segment,
indeed, the denouement of the prosecutor's closing. This
section of his argument was integrated into his argument of the
Cunneen factors, particularly the defendant's indifference
to the victim's suffering." Id. at 676.
 30
should be judged not by the number of transcript pages it
occupies, but by the import of its use.29 Moreover, in many
instances the language used was perilously close to that which
had been found inappropriate in Niemic I.
At the defendant's second trial, the prosecutor began and
ended his closing with the same attempt to tug at the jury's
heart strings. Indeed, he framed his argument with equally
improper plays to juror sympathy in virtually the same language
that he had used at the first trial, including the victim's last
words to his father -- "Dad, don't let me die, don't let me
die," with which the prosecutor once again ended his closing --
which had been a focus of the court's discussion of the
29In any event, the numbers favor the defendant. The
prosecutor's sympathy argument in total was longer at the second
trial than at the first. In Niemic I, the prosecutor's closing
argument in full required thirty-one pages of transcript; of
these, approximately the last six pages were devoted to the
improper argument. At the second trial, the prosecutor's
closing argument covered approximately thirty-nine pages of
trial transcript, approximately twenty-one percent longer than
at the first trial. While much of the last ten pages of the
second closing was devoted to improper argument, the improper
argument began in the first paragraph of the first page, and was
woven throughout. Furthermore, the prosecutor's opening
statement at the new trial also began with reference to the same
inflammatory statement by the victim that had been a focus of
the improprieties in the closing at the Niemic I trial.
Finally, three pages of the prosecutor's opening statement
contained the reported efforts of meeting attendees, EMTs, and
emergency room personnel to save the victim for which the
prosecutor had been admonished in Niemic I. See note 27, supra.
31
improprieties in Niemic I, 472 Mass. at 675-676. The prosecutor
then proceeded in the same vein as at the first trial,
frequently using much the same language. Structuring his
argument with the jury's focus on the victim's words, he ended
with the same pleading statement by the victim. For example,
First Trial Second Trial
"And they saw him struggling "Ladies and gentlemen, on
and bleeding in front of his October 20, 2010, there was a
own father." See Niemic I, 472 brutal, senseless murder in the
Mass. at 675. city of New Bedford. The
brutality you've already heard
about. A young man unarmed, set
upon by the defendant, hands up,
defenseless, stabbed multiple
times over and over. Ends up
bleeding out, dying, begging for
his life in front of his father"
(emphasis added).
"What does that say about what
he intended? Some punching,
then the knife comes out.
Stabbing. And then he is
finishing the job right up to
the point where he chases him
down, stabs him in the side and
in the back, and then leaves him
to die, bleeding out, right at
the -- in front of all these
people, including his own father
who -- give whatever
consideration you want to the
stipulation. It's hard to
imagine how or what a father
might say or understand in the
course of watching his son bleed
out in front of him, saying,
'Dad, don't let me die. Don't
let me die.'" (Emphases added.)
"begging for his life"
This is all the more surprising in that, shortly before
32
closing arguments, the parties informed the judge that they had
entered into a stipulation concerning a statement by the
victim's father about the victim's last words to him, a focus of
our discussion in Niemic I.30 Defense counsel read the
stipulation to the jury immediately prior to the closings.
Rather than referencing the language in the agreed-upon
stipulation, the prosecutor instead chose to attack the very
idea of the stipulation to which he had agreed, arguing, as
noted, "give whatever consideration you want to the stipulation.
It's hard to imagine how or what a father might say or
understand in the course of watching his son bleed out in front
of him . . . ."
As before, the prosecutor pointed out all the other people
who happened to be present "at the wrong spot at the wrong
time." He also said that they had seen the victim "bleeding
out," "begging for his life" "in front of all these people,
including his own father," "at the start," "at the middle,"
"and, unfortunately, the bitter end." Foreshadowed by the
prosecutor's opening,31 this language mirrored the prosecutor's
30The stipulation was that the father stated, "My son comes
running in. He said, 'Dad, I was just fighting with a guy.'"
31The prosecutor's opening statement detailed the efforts
of bystanders, EMTs, and emergency room doctors to save the
victim, another "highly improper, emotionally charged
discussion" that had featured in the court's admonition in
Niemic I. Id. at 675.
 33
improper statements in Niemic I, 472 Mass. at 675, that the
"civilian witnesses" were "at the wrong time at the wrong
place." As the court emphasized in Niemic I, "[t]he emotional
impact on witnesses of the victim's death was not a proper
matter for consideration by the jury." Id.
Notwithstanding this court's prior admonitions, after
defense counsel objected at the end of the closing, the
prosecutor told the judge:
"The one thing I would say, Your Honor, just about dying in
front of his father. One, begging for his life, that's in
evidence; two, in front of his father, that was in
evidence; and three, I do believe, and I think I maybe said
this to you or I've said it, dying in front of your father
to me is more conscious suffering than dying out in the
woods alone. I mean, I would feel worse if I'm dying in
front of my father. And so it goes to the issue of
conscious suffering of the victim."
Pointing, however, to this court's comments about playing to
juror sympathy and emotion in Niemic I, the judge, just prior to
her final charge, instructed the jury that sympathy, and
specifically sympathy for the father, should play no role in the
jury's deliberations.32
32 The judge instructed:
"[T]o the extent that in the closing argument [the
prosecutor] talked about [the victim] begging for his life
in front of his father and that the defendant left him to
die in front of his father, you may not decide this case in
any way, shape or form based upon sympathy. It's not to
take any place in your deliberations. And if you
interpret -- if you interpret that argument by [the
34
In Niemic I, 472 Mass. at 675, we concluded that the
prosecutor's "highly improper, emotionally charged discussion
covering three pages of transcript" that attempted to inflame
the jury's emotions was a significant factor in the need for a
new trial. Prosecutorial "appeals to sympathy . . . obscure the
clarity with which the jury would look at the evidence and
encourage the jury to find guilt even if the evidence does not
reach the level of proof beyond a reasonable doubt."
Commonwealth v. Bois, 476 Mass. 15, 34 (2016), quoting
Commonwealth v. Santiago, 425 Mass. 491, 501 (1997), S.C., 427
Mass. 298 and 428 Mass. 39, cert. denied, 525 U.S. 1003 (1998).
In addition to the defendant's claims concerning the
prosecutor's closing argument, our review under G. L. c. 278,
§ 33E,33 reveals two other types of improprieties, namely that
prosecutor] that he's -- as appealing to your sympathy, you
are to disregard because that's not a proper purpose. It
may be considered on other issues, but appealing to
sympathy is not a proper purpose."
See part 2.v, infra.
33"General Laws c. 278, § 33E, directs us to review the
case of a defendant convicted of murder in the first degree by
considering the 'whole case,' and not merely questions that have
been properly preserved for appellate review." Commonwealth v.
Colleran, 452 Mass. 417, 430-431 (2008), quoting Commonwealth v.
Hall, 369 Mass. 715, 736 (1976). "The statute states: 'Upon
such consideration the court may, if satisfied that the verdict
was against the law or the weight of the evidence, or because of
newly discovered evidence, or for any other reason that justice
may require (a) order a new trial or (b) direct the entry of a
35
the prosecutor used facts not in evidence or misstated facts and
improperly stated his own opinion on multiple occasions. We
discuss each in turn.
iii. Facts not in evidence and misstatements of fact. On
more than ten occasions, the prosecutor argued facts not in
evidence, often on issues central to the case, or asked the jury
to draw inferences the evidence did not support. We focus on
only a few of the more significant misstatements: (A) that the
defendant had said a few months previously that he planned to
slice up the victim at an AA meeting; (B) that the defendant had
attempted deliberately to provoke the victim by overt romantic
gestures with Weaver in front of the victim; and (C) that the
victim had gone to the meeting that night to avoid the
defendant.
A. "Slice" up the victim. In one particularly glaring
misstatement, the prosecutor argued that, several months before
the stabbing, the defendant had told the victim he planned to
"slice [the victim] up when [he saw him] at an AA meeting."
There was no testimony that the defendant made such a statement.
To the contrary, Nason testified that, a few months before the
stabbing, the victim had said he would "slice" the defendant
when they next met. The defendant testified similarly. Even if
verdict of a lesser degree of guilt . . .'" (emphasis omitted).
Colleran, supra at 431, quoting G. L. c. 278, § 33E.
36
meant sarcastically, the prosecutor was not free to attribute
this testimony to the defendant. See Commonwealth v. Young, 461
Mass. 198, 206 (2012).
B. The kiss. To emphasize the defendant's premeditation,
and the inference that the defendant's interaction with Weaver
was designed to upset or annoy the victim, the prosecutor argued
repeatedly that the defendant had intentionally hugged and
kissed Weaver multiple times, in order to provoke him. "[The
defendant] takes a position with [Weaver], and that's when all
the hugging and the kissing, like right in front of [the
victim]. Does that sound like he's trying to get a reaction:
This is my girl. There was a lot of hugging and kissing that
was described." The prosecutor sprinkled multiple references to
"the business with the hugging and kissing," and the defendant's
act of "kiss hug, kiss hug" throughout his closing.
Whether the physical intimacy between Weaver and the
defendant was limited to a brief peck on the cheek or included
some hugs and kisses, see note 3, supra, there was no evidence
that the defendant had planned or engaged in such interaction
with Weaver to provoke the victim. There was no evidence that
the victim was even watching the two, whose interaction was at
an approximate distance of thirty feet from the victim. The
evidence was that the victim spent that time standing with his
former roommate looking at his cellular telephone, learning how
37
to download music. If anything, the evidence suggested that
Weaver's conduct -- reaching out, grabbing the defendant by the
arm, and pulling him back toward her, saying, "no, don't" -- was
meant to detain the defendant and discourage him from
approaching the victim. While a prosecutor may argue reasonable
inferences to be drawn from the evidence, a prosecutor may not
argue facts not in evidence or misstate the evidence. See
Young, 461 Mass. at 206.
C. Hiding from the defendant. To further his theme that
the defendant had gone to the soup kitchen with a "purposeful
plan" to confront the victim, rather than to drop off Weaver,
the prosecutor argued that the victim ("a deer in the
headlights") had gone to the AA meeting specifically to avoid
the defendant, and the defendant, in turn, had "gone to where
[the victim] is when he has tried -- you know, when [the victim]
doesn't want to deal with [the defendant]." There was
absolutely no evidence to support this misrepresentation that
the victim was at the meeting at the soup kitchen seeking refuge
from the defendant.
Such "[r]eferences to facts not in the record or
misstatements of the evidence have been treated as serious
errors where the misstatement may have prejudiced the
defendant." Santiago, 425 Mass. at 499–500. See Shelley, 374
Mass. at 469 (where prosecutor introduced facts not in evidence,
38
"we have recognized that the failure to object and possibly
obtain a curative instruction may be the very thing which
permits the remarks to have their maximum prejudicial effect").
iv. Statements of prosecutor's opinion. At numerous
points in his closing, as he had impermissibly in Niemic I, 472
Mass. at 674-675, 677, the prosecutor explicitly told the jury
his own opinion of the defendant's credibility, as well as that
of some of the other witnesses. See Commonwealth v. Sanders,
451 Mass. 290, 296-297 (2008), citing Commonwealth v. Wilson,
427 Mass. 336, 352 (1998), and Commonwealth v. Chavis, 415 Mass.
703, 713 (1993) (prosecutor may not express his or her personal
belief in testimony or suggest that he or she has knowledge
outside record, and may not suggest prosecutor has personal
knowledge of, or vouch for, credibility of any witness). See
also United States v. Torres-Galindo, 206 F.3d 136, 142 (1st
Cir. 2000) (vouching includes statements that "invite the jury
to rely on the prestige of the government and its agents rather
than the jury's own evaluation of the evidence").
A prosecutor's statement of personal belief is improper.
See Commonwealth v. Thomas, 401 Mass. 109, 115 (1987). "To
permit counsel to express his personal belief in the testimony
(even if not phrased so as to suggest knowledge of additional
evidence not known to the jury), would afford him a privilege
not even accorded to witnesses under oath and subject to cross-
39
examination. Worse, it creates the false issue of the
reliability and credibility of counsel. This is peculiarly
unfortunate if one of them has the advantage of official
backing." Id. at 115-116, quoting Commonwealth v.
De Christoforo, 360 Mass. 531, 547 (1971) (Tauro, J.,
dissenting).
Here, the prosecutor repeatedly stated his own opinion that
Nason "lie[d]"34 in much of his testimony, and, later told the
jury Nason had "lied to you folks."35 The prosecutor also
repeatedly emphasized that the defendant was "lying,"36 as were
the other defense witnesses.37 The prosecutor also identified,
as he had impermissibly at the first trial, see Niemic I, 472
34For example, "So only the words out of his mouth about
the kind of bad guy [the victim] is to make you think less of
him. That's not the evidence. You heard the evidence in this
case. He had a motive. He had a motive because he was angry
about the girlfriend."
35For example, "The wheel man who lied to you folks when he
said [he] didn't know what [the defendant] was going to do as
he's going to over to talk to [the victim]. Remember?"
36For example, "[The defendant] lied to us about, "Oh, no.
I didn't know I stabbed him." He's telling them as he jumped in
the car, "I stabbed him." He knew he stabbed him. Not swinging
aimlessly. He knew he stabbed him."
37The prosecutor argued multiple times in a similar vein
that the defendant's testimony was contrary to "the evidence."
At one point, the prosecutor argued that the defendant will
"keep saying what he wants to say. Get his story out there,
hoping that there will be a narrative that somebody will buy.
That's inconsistent with the evidence" (emphasis added).
40
Mass. at 671, 673, 675, 676, that testimony which had been given
by "civilians" (who were not friends of the defendant) and
therefore was the sole credible evidence.
The prosecutor of course was entitled to use "enthusiastic
rhetoric, strong advocacy, and excusable hyperbole" (citation
omitted). Wilson, 427 Mass. at 350. These statements, however,
crossed the line between fair and improper argument. "This line
of argument . . . further suggested to the jury that the
testimony of these . . . prosecution witnesses had to be
believed in toto and that any testimony of the defendant which
diverged had to be discredited as a lie." Thomas, 401 Mass. at
116. A prosecutor "may not explicitly or implicitly vouch to
the jury that he [or she] . . . knows that the witness's
testimony is true." Commonwealth v. Marrero, 436 Mass. 488, 501
(2002), quoting Commonwealth v. Ciampa, 406 Mass. 257, 265
(1989).
Given the absence of objection by defense counsel,38 the
We are not unaware of apparent deficiencies in defense
38
counsel's performance, as already remarked upon here and in
parts 2.c and 2.d.i, ii, iii, and iv, supra. See, for example,
notes 18, 21, 22, 26, and 27, supra. Also, counsel's efforts to
introduce evidence favorable to the defendant often served as
the bulwark of much of the evidence that was contrary to the
theory of defense. See note 26, supra. In addition, counsel
failed to object to the prosecutor's more than "hard driving"
cross-examinations; failed to ask for a contemporaneous (or any)
limiting instruction; and failed to object to the prosecutor's
persistent interruptions of defense counsel's questions on
41
only relevant instruction provided was the general instruction
that the attorneys' closing arguments are not evidence, and that
if the jury's memory of the evidence differed, they were to rely
on their collective memory. This general instruction was not
sufficient to explain to the jury why they should not rely on
the prosecutor's assertions of his own beliefs. Marrero, 436
Mass. at 502. See Torres-Galindo, 206 F.3d at 142. See, e.g.,
Commonwealth v. Williams, 450 Mass. 894, 906 (2008) ("In cases
where a prosecutor improperly has given unsworn testimony that
went to a critical issue in the case, or improperly has vouched
for a key Commonwealth witness, where there has been an
objection [and sometimes not], and where the case against the
defendant is not otherwise overwhelming [as here], we have
required a judge to respond to prosecutorial misconduct with
force and specificity. A general instruction, as here, will not
suffice to neutralize the prejudice"). See also Commonwealth v.
Worcester, 44 Mass. App. Ct. 258, 266-267 (1998) (new trial
required based on prosecutor's improper comments on defendant's
credibility).
v. Whether a new trial is warranted. Given our conclusion
that portions of the prosecutor's closing were improper, we turn
direct and cross-examination of many witnesses. Because of the
result we reach, we need not address these issues further.
42
to consideration whether one or more of these improprieties, or
a combination of all, warrant a new trial. In determining
whether a new trial is required because of errors at trial, we
consider "whether 'defense counsel seasonably objected to the
arguments at trial . . . whether the judge's instructions
mitigated the error . . . whether the errors in the arguments
went to the heart of the issues at trial or concerned collateral
matters . . . whether the jury would be able to sort out the
excessive claims made by the prosecutor . . . and whether the
Commonwealth's case was so overwhelming that the errors did not
prejudice the defendant.'" Commonwealth v. Maynard, 436 Mass.
558, 570 (2002), quoting Santiago, 425 Mass. at 500.
"[T]he cumulative effect of all the errors must be
'considered in the context of the arguments and the case as a
whole.'" Niemic I, 472 Mass. at 673, quoting Maynard, 436 Mass.
at 570. "Once a properly raised objection to a prosecutor's
argument is found to be valid, the entire record, including the
balance of the prosecutor's argument, becomes relevant in
determining whether the error was prejudicial to the point of
requiring a reversal of the conviction." Commonwealth v. Kozec,
399 Mass. 514, 523 (1987), citing Commonwealth v. Burke, 373
Mass. 569, 577 (1977).
Here, even if no one impropriety alone would mandate a new
trial, we conclude that the confluence of the asserted errors in
43
closing, one of which reiterated the essence of the errors that
contributed primarily to the need for the second trial, do again
necessitate a new trial. Counsel "seasonably objected" to two
of the arguments -- the substantive use of rebuttal testimony
and the play to jury sympathy -- and not to the others, which we
uncovered in our review pursuant to G. L. c. 278, § 33E, but the
absence of an objection makes no difference in our conclusion.
Even when reviewed under a substantial likelihood of a
miscarriage of justice standard,39 the improprieties require a
new trial, because we cannot be certain that the jury would have
been able to look at the evidence clearly and reach a decision
based only on proof beyond a reasonable doubt. See Bois, 476
Mass. at 34, quoting Santiago, 425 Mass. at 501.
As to the second Maynard factor, while there was no
contemporaneous limiting instruction, the judge gave appropriate
curative instructions with respect to the two preserved errors
immediately before her final charge. See Maynard, 436 Mass.
at 570; notes 25 and 32, supra. In her final charge, given
shortly thereafter, the judge provided general instructions that
39Under G. L. c. 278, § 33E, we review for a substantial
likelihood of a miscarriage of justice, under which a defendant
is entitled to relief only "if we have a serious doubt whether
the result of the trial might have been different had the
error[s] not been made." Commonwealth v. Russell, 439 Mass.
340, 345 (2003), quoting Commonwealth v. LeFave, 430 Mass. 169,
174 (1999).
44
attorneys' arguments are not evidence, and that the jurors
should not make a decision based on sympathy or pity. The judge
did as much as she could to mitigate the improprieties, which,
in other circumstances, might be enough. See Giguere, 420 Mass.
at 235.
We have long recognized, however, that not all errors can
be cured by providing proper instructions. See Commonwealth v.
Redmond, 370 Mass. 591, 597 (1976) (no one error "was
necessarily so prejudicial that curative instructions were
useless or that the instructions given were inadequate";
nonetheless, curative instructions were inadequate in
circumstances to overcome combination of errors); Commonwealth
v. DiMarzo, 364 Mass. 669, 681 (1974) ("It is reasonable for us
to be confident that in most cases limiting instructions
accomplish their intended purpose. Nevertheless, in cases like
the instant one, where the evidence subject to limitations has
an extremely high potential for unfair prejudice, we have a duty
to be skeptical as to the effectiveness of limiting
instructions"); id., quoting Nash v. United States, 54 F.2d
1006, 1007 (2d Cir.), cert. denied, 285 U.S. 556 (1932) (in some
contexts, curative instructions "have been characterized by
Judge Learned Hand as 'the recommendation to the jury of a
mental gymnastic which is beyond, not only their power, but
anybody's else'"). See also Commonwealth v. James, 424 Mass.
45
770, 782 (1997), quoting Richardson v. Marsh, 481 U.S. 200, 208
(1987) (curative instruction not sufficient to cure prejudice in
"cases where the codefendant's statement 'expressly
implicate[s]' the defendant, leaving no doubt that it would
prove to be 'powerfully incriminating'"). In the circumstances
here, given the confluence of errors, the inherently highly
emotional testimony, and the context of the trial, we cannot say
with confidence that the repeated references to the rebuttal
testimony and the appeals to sympathy and emotion did not infect
the jury.
Turning to the remaining Maynard factors, the improprieties
went to "the heart of the issues at trial," and were not
collateral. See Niemic I, 472 Mass. at 676-677. The
Commonwealth's case at the defendant's first trial was "not
overwhelming," id. at 677, and in some respects it was weaker at
the second trial, due to the unavailability of the medical
examiner who had performed the autopsy and changes in testimony
or lapses in memory by a number of witnesses. The improper
undermining of the theory of defense in effect instructed the
jury that they reasonably could not believe the defendant's
testimony.
At the same time, the improper statements in the
prosecutor's closing were designed to inflame the jury's
passions, such that they would feel the need to avenge the
46
victim, in a trial where a significant portion of the evidence,
concerning the efforts to save the victim after he lost
consciousness, was designed to be emotionally disturbing, in
order to support the charge of extreme atrocity or cruelty.
Yet, the statements were not so clearly hyperbole that the jury
would have been able to identify and sort out "the excessive
claims made by the prosecutor," and his exhortations that the
jury could not believe the defendant or any of the "non-
civilian" testimony. Maynard, 436 Mass. at 570, quoting
Santiago, 425 Mass. at 500.
"[T]he prosecutor, in his opening and closing
statements . . . improperly appealed to the jury's sympathy for
the victim in a way that may have 'swe[pt] the jurors beyond a
fair and calm consideration of the evidence." Santiago, 425
Mass. at 493–494, quoting Commonwealth v. Perry, 254 Mass. 520,
531 (1926). The prosecutor's "comments went to the very heart
of the case. They struck, and struck impermissibly, at the
defendant's sole defense, and sought to impeach his only
witnesses." Shelley, 374 Mass. at 471. "[I]mproper
suggestions, insinuations, and, especially, assertions of
personal knowledge [by the prosecutor] are apt to carry much
weight against the accused when they should properly carry
none." Id. at 472, quoting Berger v. United States, 295 U.S.
78, 88 (1935). It was thus unlikely that the jurors would have
47
been able to "sort out the excessive claims made by the
prosecutor" and decide the case on the evidence (citation
omitted). See Niemic I, 472 Mass. at 673-674.
Given all this, the improprieties in argument, especially
the appeals to sympathy, were rendered particularly crucial.
"[T]hat is the nature of appeals to sympathy: they do not
misstate any piece of evidence, but rather obscure the clarity
with which the jury would look at the evidence and encourage the
jury to find guilt even if the evidence does not reach the level
of proof beyond a reasonable doubt. Thus, the strength of the
Commonwealth's case is particularly crucial where improper
appeals to sympathy are made. Where guilt is clear, we may
conclude that the overwhelming strength of the evidence led the
jury to its conclusion, but where the questions are close and
difficult, we cannot be certain that the jury's conclusion was
not clouded by the improper appeals and that their verdict was
based on a dispassionate view of the evidence." Santiago, 425
Mass. at 501-502. Here, the evidence was not overwhelming, and
the appeals to sympathy are accordingly worrisome.
We turn to the effect of the improprieties as a whole. As
discussed, two of the improprieties in the prosecutor's closing
are preserved, and are reviewable under a prejudicial error
standard. With respect to those uncovered during § 33E review,
we review for a substantial likelihood of a miscarriage of
48
justice, under which a defendant is entitled to relief only "if
we have a serious doubt whether the result of the trial might
have been different had the error[s] not been made."
Commonwealth v. Russell, 439 Mass. 340, 345 (2003), quoting
Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).
In the context of this case, the use of the rebuttal
testimony as substantive evidence, and the improper appeals to
sympathy and emotion were prejudicial to the defendant. Because
the statements at issue addressed his intent in approaching the
victim -- a core issue at trial underpinning his conviction for
premeditated murder -- and called upon the jury to rely on
sympathy and emotion, the wrongful use of such evidence
constituted prejudicial error. That is so because, in this
context, the prosecutor's improper statements on seminal issues
would have been too intertwined with what the prosecutor himself
described as his "strenuous[]" and "contentious" trial
strategies for the jury to have engaged in "fair and calm"
consideration of the evidence (citation omitted). See Santiago,
425 Mass. at 494. We have serious doubt, particularly when
these errors are reviewed in combination with those revealed in
our review under G. L. c. 278, § 33E, "whether the result of the
trial might have been different had the error[s] not been made."
Russell, 439 Mass. at 345, quoting LeFave, 430 Mass. at 174.
Accordingly, a new trial is necessary.
49
3. Conclusion. "We take no pleasure, in fact we harbor a
degree of concern, that a time-consuming and costly retrial must
be held. . . . Our task, not always an easy one, is to preserve
the interests of justice, both for the Commonwealth and the
accused. On this record, the risk of a miscarriage of justice
is too great for us to let stand the defendant's conviction of
murder . . . ." Kater, 388 Mass. at 534.
The verdict of guilty of murder in the first degree is
vacated and set aside. The matter is remanded to the Superior
Court, where the Commonwealth again may accept a reduction in
the verdict to manslaughter, or once again may retry the
defendant on the murder charge.
So ordered.