Commonwealth v. Howard , 469 Mass. 721 ( 2014 )


Menu:
  • NOTICE: All slip opinions and orders are subject to formal
    revision and are superseded by the advance sheets and bound
    volumes of the Official Reports. If you find a typographical
    error or other formal error, please notify the Reporter of
    Decisions, Supreme Judicial Court, John Adams Courthouse, 1
    Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
    1030; SJCReporter@sjc.state.ma.us
    SJC-11128
    COMMONWEALTH    vs.   CLYDE HOWARD.
    Middlesex.        February 7, 2014. - October 2, 2014.
    Present:    Spina, Botsford, Gants, & Lenk, JJ.
    Constitutional Law, Admissions and confessions, Voluntariness of
    statement, Waiver of constitutional rights, Harmless error.
    Waiver. Error, Harmless. Evidence, Admissions and
    confessions, Voluntariness of statement, Prior misconduct,
    Argument by prosecutor, Intoxication. Practice, Criminal,
    Motion to suppress, Admissions and confessions,
    Voluntariness of statement, Waiver, Harmless error,
    Argument by prosecutor, Instructions to jury.
    Indictments found and returned in the Superior Court
    Department on March 19, 2009.
    A pretrial motion to suppress evidence was heard by Wendie
    I. Gershengorn, J., and the cases were tried before her.
    Robert F. Shaw, Jr., for the defendant.
    Jamie M. Charles, Assistant District Attorney, for the
    Commonwealth.
    BOTSFORD, J.       A Superior Court jury found the defendant,
    Clyde Howard, guilty of murder in the first degree on theories
    2
    of deliberate premeditation and extreme atrocity or cruelty.1
    The defendant appeals his conviction, arguing that:   (1) the
    motion judge erred in denying his pretrial motion to suppress
    statements that he made to police both on the day of his arrest
    and on the following day during an interview with police; (2)
    the Commonwealth impermissibly focused on prior bad acts and
    character evidence during trial; (3) statements made by the
    prosecutor during his closing argument prejudiced the defendant
    and warrant a new trial; and (4) the jury instructions on mental
    impairment and the voluntariness of the defendant's statements
    were erroneous and warrant reversal of his convictions.
    Pursuant to our review of the entire case under G. L. c. 278,
    § 33E, we conclude that the erroneous admission of portions of
    the defendant's statement to the police, combined with other
    errors, require reversal of the defendant's conviction of murder
    in the first degree.    On remand, at the Commonwealth's option, a
    verdict of murder in the second degree may be entered in lieu of
    a new trial on the first degree murder indictment.
    1.   Background.   We recite the facts as the jury could have
    found them, reserving other facts for later discussion.   On the
    morning of January 28, 2009, the victim, Maurice Ricketts, was
    1
    The jury also found the defendant guilty of unlawful
    possession of a firearm; unlawful possession of ammunition; and
    discharging a firearm within 500 feet of a building. The
    defendant does not contest those convictions in this appeal.
    3
    shot in the head and killed while at his job at Baystate Pool
    Supplies (Baystate), a pool supply distributor located in
    Cambridge.   He was shot by the defendant, who worked at Baystate
    as a handyman.
    Earlier that morning, at around 9 A.M., the defendant was
    asked by the Baystate branch manager Derek Roczynski and
    operations manager Michael Najarian, Jr., to buy breakfast for
    them at a local fast food restaurant.2   After breakfast, Najarian
    joined the victim in the warehouse known to Baystate employees
    as the "chemical building," located directly across the street
    from Baystate's offices and other warehouses.   Shortly after 10
    A.M., the defendant entered the front door of the chemical
    building carrying a bag of trash.   Singing and joking with
    Najarian as he passed, he walked down a pathway toward the back
    exit and out to the dumpster.    This outdoor area was known to
    employees as the "chemical backyard" (chemical yard).   After
    taking out the trash, the defendant returned through the
    chemical building and proceeded to leave through the front door,
    but then turned around, reentered, and exchanged words with the
    victim who was working nearby.    Najarian heard an "explosion of
    2
    The defendant claimed that after he returned from buying
    breakfast, and before the shooting took place, the victim came
    at him with a hammer. At trial, Michael Najarian testified that
    the only hammers at Baystate Pool Supplies (Baystate) were
    located in his office.
    4
    yelling" between the defendant and victim, and he approached
    them, "scream[ing]" for them to stop.    Within moments, the
    defendant reached into his right pocket, pulled out a gun, and
    pointed it at the victim, who turned and ran through the
    warehouse toward the back door leading to the chemical yard.
    The defendant fired once, missing the victim, and then quickly
    followed him.   Najarian shouted twice at the defendant to "stop
    it"; each time, the defendant responded, "What?", but continued
    to pursue the victim while looking straight ahead toward the
    back door.
    After the two men ran out of the warehouse, Najarian ran to
    the company offices across the street where he alerted Roczynski
    and assistant manager James McGaffigan before telephoning 911.
    Roczynski and McGaffigan immediately ran toward the chemical
    building but heard shots coming from the chemical yard before
    they reached the building entrance.     They ran along the building
    toward the chemical yard and peered through an opening in the
    locked fence.   There, they saw the defendant facing the back of
    the dumpster with his arm outstretched and pointed slightly
    downward, and then heard two additional shots.    After each shot,
    Roczynski heard the victim make a grunting sound and, after the
    second, also heard the defendant mutter, "I got you."    Roczynski
    then shouted, "[W]hat the f are you doing"; the defendant
    briefly glared at him.   McGaffigan saw the defendant walk toward
    5
    the back door, stop, return to the dumpster area, and fire an
    additional shot.     Roczynski and McGaffigan returned to the
    entrance of the chemical building and Roczynski bumped into the
    defendant who was coming out of the door.     The defendant
    muttered, "I got to get out of here," ran to a white van, and
    drove away.
    Roczynski, McGaffigan, and other Baystate workers rushed to
    the chemical yard where they found the victim behind the
    dumpster, wedged between a stack of wood pallets.    He had
    suffered two gunshot wounds to the head.     Shortly thereafter,
    paramedics responded to the scene and, finding a faint pulse,
    transported him to the hospital.     During transport, the victim
    went into cardiac arrest, and medics performed cardiopulmonary
    resuscitation on him.    He was pronounced dead shortly after
    arriving at the emergency room.
    Later that day, at approximately 4 P.M., Sergeant Thomas J.
    Teahan of the Boston police department heard a radio broadcast
    to be on the lookout for the defendant in a white van in the
    Roxbury area.   Teahan, who was driving in Roxbury at the time,
    came across a van parked alongside the road that matched the
    description of the defendant's vehicle.    He called for backup,
    parked his vehicle to block the van, and approached the driver's
    side door on foot.    Teahan observed the defendant apparently
    asleep in the driver's seat with a cellular telephone at his
    6
    ear; he removed the defendant from the van and conducted a pat
    frisk to locate weapons.    When Teahan asked the defendant if he
    was carrying a firearm, he replied, "No, I threw it in the
    Charles River."   The defendant was then placed under arrest,
    handcuffed, and transported to the Boston police department
    station in Roxbury for initial booking (Roxbury booking).     At
    the station, Teahan read the defendant the Miranda rights and
    informed him that he was under arrest for murder.    During the
    booking, the defendant made several unsolicited statements to
    Teahan.
    Thereafter, State police Trooper Erik Gagnon and two
    Cambridge police officers transported the defendant to the
    Cambridge police department for further booking (Cambridge
    booking).   Gagnon detected the odor of alcohol on the
    defendant's breath, as well as slurred speech and a slightly
    unsteady gait while the defendant was walking, although he was
    not slipping, falling, or stumbling.   During the twenty-five
    minute ride to Cambridge, the officers did not ask the defendant
    any questions.    Nevertheless, the defendant made several
    unsolicited statements about the events that had transpired
    earlier in the day.    At around 5:15 P.M., the defendant arrived
    at the Cambridge police department where he was booked, his
    clothing was taken, and he was placed in a cell.    Thereafter,
    Gagnon and his colleagues decided that because the defendant
    7
    appeared "somewhat impaired," they would wait until the
    following morning to interview him.    The next morning, at
    approximately 6:30 A.M., Gagnon and Detective Daniel McNeill of
    the Cambridge police department interviewed the defendant.
    At trial, the defendant did not dispute that he shot and
    killed the victim.   He did not testify but presented evidence to
    show that, because of a mental impairment, he lacked the
    capacity to commit murder in the first degree at the time of the
    killing.   In particular, the defendant introduced the testimony
    of Dr. Robert Joss, a certified forensic psychologist, who
    opined that at the time of the killing the defendant had an Axis
    II personality disorder, not otherwise specified, with obsessive
    compulsive, schizoid, and paranoid features.   Joss characterized
    the defendant as having a "substantial disorder of perception,
    particularly the perception of the sort of social interactions
    that grossly impaired his judgment."   Therefore, whether the
    defendant actually was threatened or intimidated by the victim
    on the day of the killing was immaterial because the defendant
    was "predisposed to perceive [the victim] as threatening."
    Overall, Joss concluded that at the time of the killing, the
    defendant had a diminished capacity to form the intent necessary
    to premeditate deliberately or to act with extreme atrocity or
    cruelty, as well as more generally the intent necessary for
    malice.
    8
    In rebuttal, the Commonwealth called Dr. Alison Fife, a
    psychiatrist, who testified to her opinion that at the time of
    the killing, the defendant was not suffering from any mental
    illness, mental defect, or personality disorder, and had the
    capacity to appreciate the wrongfulness of his acts.
    2.   Motion to suppress.   Before trial, the defendant moved
    to suppress statements he made after his arrest on January 28,
    2009, on the ground that they were involuntary due to his
    intoxication; he also argued that the statements made during his
    interview with police on January 29 were obtained in violation
    of his Miranda rights, see Miranda v. Arizona, 
    384 U.S. 436
    (1966), and his constitutional right against self-incrimination.3
    After an evidentiary hearing, the motion judge, who was the
    trial judge, denied the motion.    The defendant argues that the
    denial constituted error.
    a.   Standard of review.   "In reviewing a ruling on a motion
    to suppress, we accept the judge's subsidiary findings of fact
    3
    The defendant argued as well that his right to a prompt
    arraignment under Commonwealth v. Rosario, 
    422 Mass. 48
     (1996),
    was violated because the police initially failed to advise him
    of this right and later obtained a waiver by "trickery." The
    motion judge rejected the argument, reasoning that there was no
    Rosario violation because its safe harbor window did not begin
    to run until the defendant became sober and, in any event, the
    defendant executed a valid waiver of his Rosario rights. See
    Rosario, supra at 56-57. The defendant does not challenge the
    judge's ruling on appeal. We agree with the judge's analysis,
    and do not consider the issue further.
    9
    absent clear error 'but conduct an independent review of [her]
    ultimate findings and conclusions of law.'"    Commonwealth v.
    Scott, 
    440 Mass. 642
    , 646 (2004), quoting Commonwealth v.
    Jimenez, 
    438 Mass. 213
    , 218 (2002).   We "make an independent
    determination of the correctness of the judge's application of
    constitutional principles to the facts as found."     
    Id.,
     quoting
    Commonwealth v. Mercado, 
    422 Mass. 367
    , 369 (1996).     Here, in
    addition to testimony, the motion judge considered videotape
    evidence of the defendant's Cambridge booking on January 28 and
    of his interview with police on January 29.   Thus, "to the
    extent that the judge based [her] legal conclusions on facts
    found by virtue of a video recording, 'we are in the same
    position as the judge in viewing the videotape,'" and
    independently review it without deference to the motion judge.4
    Commonwealth v. Clarke, 
    461 Mass. 336
    , 341 (2012), quoting
    Commonwealth v. Prater, 
    420 Mass. 569
    , 578 n.7 (1995).
    b.   January 28, 2009, statements.   The defendant does not
    dispute that the statements he made at the time of his arrest,
    transport, and the Roxbury booking were spontaneous and not
    4
    However, to the extent that the motion judge relied on
    testimony and videotape evidence to make credibility
    determinations relevant to her subsidiary findings of fact, we
    "adhere to the normal standard of review . . . [and] afford such
    findings substantial deference, and accept them unless not
    warranted by the evidence" (citations and quotations omitted).
    Commonwealth v. Clarke, 
    461 Mass. 336
    , 341 (2012).
    10
    obtained through police questioning, and that therefore Miranda
    protections did not apply.5   See Commonwealth v. Diaz, 
    422 Mass. 269
    , 271 (1996).   His sole argument is that, because he was
    intoxicated, the Commonwealth did not meet its burden of proving
    beyond a reasonable doubt that his statements were voluntary.
    "The test for voluntariness is 'whether, in light of the
    totality of the circumstances surrounding the making of the
    statement, the will of the defendant was overborne to the extent
    that the statement was not the result of a free and voluntary
    act.'"   Commonwealth v. Durand, 
    457 Mass. 574
    , 595-596 (2010),
    quoting Commonwealth v. Souza, 
    428 Mass. 478
    , 483-484 (1998).
    Relevant factors "include whether promises or other inducements
    were made to the defendant by the police, as well as the
    defendant's age, education, and intelligence; experience with
    5
    The defendant's unsolicited statements made on January 28,
    2009, may be summarized as follows. At the Roxbury booking,
    after learning from Sergeant Thomas J. Teahan that he would be
    charged with murder, the defendant stated: "Oh, the individual
    transpired, huh?"; he further told Teahan, "I am not a bad guy.
    [The victim] is always fucking with me . . . [h]e's always
    grabbing me and slapping me like I'm a woman." The defendant
    also said that the victim told him to "[p]ull your knife. I'll
    knock you the fuck out," and that the defendant said that he
    "just went into a rage. I know I should have known better. He
    died, huh? My life is pretty much over, don't you think?"
    Thereafter, the defendant was transported to Cambridge, and he
    made the following statements to Trooper Erik Gagnon during the
    twenty-five minute drive: "I was fed up with the individual";
    "My goose is cooked"; "If I thought this out better, I would
    have gotten a passport and made a run for it"; and "I know I'm
    going to jail, but can we drive around for a while and talk?"
    11
    the criminal justice system; and his physical and mental
    condition, including whether the defendant was under the
    influence of drugs or alcohol."   Durand, supra at 596.    The mere
    presence of one or more factors "is not always sufficient to
    render the statements involuntary."   Commonwealth v. Selby, 
    420 Mass. 656
    , 664 (1995).   Further, although "special care must be
    taken to assess the voluntariness of a defendant's statement
    where there is evidence that he was under the influence of
    alcohol or drugs, an 'otherwise voluntary act is not necessarily
    rendered involuntary simply because an individual has been
    drinking or using drugs.'"   Commonwealth v. Brown, 
    462 Mass. 620
    , 627 (2012), quoting Commonwealth v. Silanskas, 
    433 Mass. 678
    , 685 (2001).
    Considering these factors, the motion judge found the
    defendant's statements to be voluntary.   There was no error.
    The defendant indisputably showed signs of intoxication.6
    However, as the motion judge found (and as the videotape of the
    Cambridge booking confirms), the defendant was not so
    intoxicated that he was stumbling or falling down -- he followed
    6
    The officers who interacted with the defendant testified,
    and the motion judge credited their testimony, that they
    detected the odor of alcohol on the defendant and observed his
    slurred speech, unsteady walking, and glassy, bloodshot eyes at
    various points from his arrest at around 4 P.M. through his
    arrival at the Cambridge police department after 5 P.M. A
    review of the videotape of the Cambridge booking corroborates
    the testimony.
    12
    commands, answered questions, carried on conversations, and
    stood, walked, and removed his clothing without assistance.
    Further, during that booking, the defendant acknowledged that he
    had received the Miranda rights earlier and asked questions
    about his location, the charges against him, and what would
    happen to him next; all of this signifies that he was lucid,
    cognizant of his surroundings, and had some appreciation of the
    gravity of his situation.7   We agree with the motion judge's
    conclusion, "put in different terms by her, that 'although the
    defendant may have been somewhat intoxicated when he spoke to
    the police, his mind was rational and his faculties were under
    control.'"   Commonwealth v. Koney, 
    421 Mass. 295
    , 305 (1995),
    quoting Commonwealth v. Simmons, 
    417 Mass. 60
    , 65 (1994).
    7
    See Commonwealth v. Brown, 
    462 Mass. 620
    , 627 (2012)
    (although defendant's speech was "sluggish" from influence of
    drugs, his statements were voluntary where "there [was] nothing
    to suggest that he was acting irrationally or was out of
    control, or that his denials were induced by psychological
    coercion"); Commonwealth v. Simmons, 
    417 Mass. 60
    , 65-66 (1994)
    (defendant's speech was slurred due to intoxication, but his
    statements were voluntary when police could understand him, he
    walked without difficulty, and appeared to understand
    situation); Commonwealth v. Liptak, 
    80 Mass. App. Ct. 76
    , 80-82
    (2011) (although defendant was intoxicated, his statements were
    voluntary because he was alert, coherent, understood and
    answered questions asked of him, and spoke cogently). Contrast
    Commonwealth v. Hosey, 
    368 Mass. 571
    , 578-579 (1975) (defendant
    did not intelligently waive Miranda rights when his level of
    intoxication rendered him "extremely high," "extremely
    emotional," and "detached from reality").
    13
    c.    January 29, 2009, statements.    The defendant further
    argues that his motion to suppress was erroneously denied
    because, when police interviewed him on January 29, 2009, the
    officers obtained statements from him in violation of his rights
    under the Fifth and Fourteenth Amendments of the United States
    Constitution and art. 12 of the Massachusetts Declaration of
    Rights.
    (i)   Initial Miranda warnings.    Finding the defendant awake
    and alert in his cell the morning after his arrest, Detective
    McNeill and Trooper Gagnon asked him if he would agree to be
    interviewed and, after obtaining consent, brought him to an
    interview room.   He was given coffee and a bagel, and his
    handcuffs were removed.   At the outset, McNeill, who conducted
    the majority of the interview, read the defendant the Miranda
    rights.   After the defendant indicated that he understood those
    rights, the following exchange occurred:
    Detective McNeill: "Having these [Miranda] rights in mind,
    do you wish to speak to us now?"
    Defendant: "Yeah, but -- yes, I'll speak to you but
    there's certain things that might be kind of like sensitive --"
    McNeill:    "Okay."
    Defendant: "-- that may jeopardize me because my rights
    has been read and --"
    McNeill:    "I understand that."
    Defendant:   "And then say hey look [inaudible] the rest of
    [inaudible]."
    14
    McNeill: "Again, I'm going to ask you to initial right
    here. Right here where it says -- right here under your
    previous initials and sign right here on the line. Just sign
    your name right there."
    The defendant then signed the Miranda waiver form and permitted
    the interview to be recorded.
    The officers began by asking the defendant about his
    upbringing, family, education, and employment.   After about
    fifteen minutes, McNeill stopped the interview and read the
    defendant a form explaining his right to prompt arraignment
    under Commonwealth v. Rosario, 
    422 Mass. 48
    , 56 (1996).     The
    defendant signed a Rosario waiver form and agreed to continue
    speaking with the officers but also stated that he "would kind
    of deviate from the more sensitive matters."
    On appeal, the defendant claims that his waivers of the
    right to remain silent in response to the administration of
    Miranda rights were conditional rather than unequivocal, and as
    a result, the officers were obligated to seek further
    clarification from him before proceeding with the interview.      At
    least with respect to the defendant's initial Miranda waiver, we
    disagree.8   The motion judge found that the defendant's words,
    "Yes, I'll speak with you," and his signature of the Miranda
    8
    The defendant's second Miranda waiver occurred after he
    invoked his right to remain silent; we consider that invocation
    in the following section of this opinion.
    15
    waiver signified an unequivocal, knowing, voluntary, and
    intelligent waiver of his right to silence.9    There was no error.
    The statement by the defendant that he may want to "deviate"
    from more "sensitive" matters merely indicated that he
    understood that he could invoke the right to remain silent, and
    might choose to do so, in the future.     See Commonwealth v.
    Bradshaw, 
    385 Mass. 244
    , 265 (1982) ("defendant has not only the
    right to remain silent from the beginning but also a continuing
    right to cut off, at any time, any questioning that does take
    place").     Accordingly, the officers were not obligated to seek
    clarification, at the time of the defendant's waiver.     See
    Clarke, 461 Mass. at 351-352.
    (ii)    Postwaiver statements.   After waiving his Miranda
    rights, the defendant spoke openly with the officers for
    approximately forty-five minutes, answering all questions asked
    of him.     As questioning progressed, the conversation became
    increasingly focused on the defendant's prior relationship with
    the victim and the moments leading up to the shooting.    After
    9
    This conclusion has a strong evidentiary basis in the
    record: the defendant was alert and showed no signs of
    intoxication during the interview, see Commonwealth v. Shipps,
    
    399 Mass. 820
    , 826 (1987); he had received and acknowledged
    understanding his Miranda rights on four separate instances the
    prior day, see Commonwealth v. Williams, 
    456 Mass. 857
    , 864
    (2010); and there is no evidence that the officers engaged in
    trickery, coercion, or intimidation to obtain this waiver. See
    Commonwealth v. Cruz, 
    373 Mass. 676
    , 688-689 (1977).
    16
    describing how the victim had approached him holding a hammer on
    the morning of the shooting, the defendant stated:
    Defendant: "Then I went to [buy] the breakfast and stuff
    and then I came back. But I would like to stop at that point
    because it [be]comes more intricate now and who knows what's
    going to happen" (emphasis added).
    McNeill:   "Okay.   But, you know, I just want to say it's
    happened."
    Defendant:    "Yeah."
    McNeill:    "There are witnesses and the employees."
    Defendant:    "Yeah.    I think --"
    McNeill:    "You know people -- Mike, Derek, Jimmy."
    Defendant:    "Yeah, Mike, yeah."
    McNeill:    "I just want to --"
    Defendant:    "But I don't know if Jimmy saw anything."
    McNeill: "Well, they did, right. But what did [the
    victim] say -- what just -- you just had enough of his tactic
    [inaudible] of bullying you?"
    Defendant:    "Yeah.    A lot of intimidation, yeah."
    The defendant contends that once he stated, "I would like
    to stop at that point," he invoked unequivocally his right to
    remain silent, and that, rather than honoring his request,
    McNeill began pressuring him by emphasizing that "it happened"
    and pointing out that there were witnesses to try to get him to
    talk about the incident.     The motion judge acknowledged the
    defendant's statement that he "would like to stop," but
    17
    determined that at no point during the interview did the
    defendant "cho[o]se to cut off questioning."
    A defendant who has waived his right to silence may
    subsequently invoke that right at any point during questioning.
    Bradshaw, 
    385 Mass. at 265
    .   However, in the postwaiver context,
    a subsequent invocation of the right to remain silent must be
    clear and "unambiguous[]," see Clarke, 461 Mass. at 342, quoting
    Berghuis v. Thompkins, 
    560 U.S. 370
    , 381 (2010), such that "'a
    reasonable police officer in the circumstances would understand
    the statement' to be an invocation of the Miranda right."     
    Id.,
    quoting Davis v. United States, 
    512 U.S. 452
    , 459 (1994).     See
    Commonwealth v. Robidoux, 
    450 Mass. 144
    , 161 (2007), quoting
    Commonwealth v. James, 
    427 Mass. 312
    , 314 (1988) (postwaiver
    invocation of right to silence requires that defendant show
    "expressed unwillingness to continue").   Whether the defendant
    has met this burden is a fact-specific determination to be made
    based on the totality of the circumstances.    Commonwealth v.
    Almonte, 
    444 Mass. 511
    , 519, cert. denied, 
    546 U.S. 1040
     (2005),
    overruled on another ground by Commonwealth v. Carlino, 
    449 Mass. 71
     (2007).
    The Commonwealth argues that the defendant's statement
    about wanting to stop "reflect[s] nothing more than the
    defendant's desire to deviate from questioning touching on the
    shooting itself."   It is the case that "a suspect's
    18
    unwillingness to answer questions on a particular topic does not
    unambiguously indicate that the suspect is unwilling to continue
    speaking with police or obligate them to inquire whether the
    suspect would 'like to reassert his right to silence.'"
    Commonwealth v. Santos, 
    463 Mass. 273
    , 285 (2012), quoting
    Robidoux, 450 Mass. at 161 n.7.10   Cf. Commonwealth v. Sicari,
    
    434 Mass. 732
    , 748-749 (2001), cert. denied, 
    534 U.S. 1142
    (2002) (prolonged silence in response to police questions);
    Commonwealth v. Senior, 
    433 Mass. 453
    , 463 (2001) (silence).
    However, considering the totality of the circumstances here, we
    disagree with the Commonwealth that the defendant's statement is
    to be read so narrowly.   There is nothing in the language of the
    defendant's entire statement, "I would like to stop at that
    point, because it [be]comes more intricate now and who knows
    what's going to happen," that qualifies or limits it to a
    particular question.
    A defendant's request to halt the questioning at a later
    point of an interview, or failure to answer one specific
    question, "must be interpreted in the context of his willingness
    to talk both immediately prior to and subsequent to" that point.
    10
    In Commonwealth v. Robidoux, 
    450 Mass. 144
    , 160 (2007),
    we concluded that there was no postwaiver invocation by the
    defendant of his right to silence when he "simply declined to
    talk about certain subjects" by stating, "I will not talk about
    my family," or stared at the interrogating officers.
    19
    Senior, 433 Mass. at 463, quoting Commonwealth v. Pennellatore,
    
    392 Mass. 382
    , 387 (1984).   Here, although initially the
    defendant had indicated twice that he might want to avoid
    "sensitive" matters, in the period immediately prior to his
    statement about stopping, he had engaged in conversation with
    the officers and willingly answered every one of their questions
    without any qualification at all for approximately forty-five
    minutes; there was no indication that the defendant was
    "pick[ing] and choos[ing]" among which questions to answer.11
    See 
    id.
       In this context, his statement, "I would like to stop
    at that point," indicated that he had reached the "sensitive"
    areas that he did not want to talk about, and, accordingly, no
    longer wanted to proceed with the interview, but as he said,
    wanted "to stop."   In the circumstances, we conclude that in
    stating, "I [want] to stop at that point," the defendant invoked
    his right to silence.12
    11
    As to the period immediately following the statement, the
    Commonwealth's claim that it casts doubt on the defendant's
    invocation because he resumed answering some questions after
    refusing to answer others mischaracterizes what happened. The
    defendant did not immediately resume speaking or even answering
    questions after indicating that he would like to "stop."
    Rather, in response to the next substantive question asked of
    him, he stated, "I don't want to answer that question." This
    was the first time in the interview that the defendant stated
    that he did not want to answer a question posed by the officers.
    12
    "Each case turns, as it must, on the specific facts."
    Commonwealth v. Sicari, 
    434 Mass. 732
    , 748 (2001), cert. denied,
    
    534 U.S. 1142
     (2002). However, it is instructive to consider
    20
    We appreciate that an appellate court reviewing a police
    interview after the fact -- generally aided by a written
    transcript and, often, a videotape of the interview, both of
    which can be reviewed more than once -- is in a different
    position than the police officers who are conducting that
    interview and acting in the moment.13   Here, the testimony at the
    motion to suppress hearing reflected that at least one of the
    interrogating officers, Gagnon, and perhaps also the officers'
    supervisors who were observing the interview through a two-way
    mirror, had some question about whether the defendant's
    statement about wishing to "stop at that point" meant he was
    other cases, and the defendant's words about wanting to stop are
    more in line with the facts of cases in which an invocation was
    found than with those concluding the opposite. Compare, e.g.,
    Commonwealth v. Santana, 
    465 Mass. 270
    , 282 (2013) (postwaiver
    statement that defendant could not "say any more" was clear
    invocation, precluding any further interview of defendant for
    remainder of evening, although not permanently); and
    Commonwealth v. Santos, 
    463 Mass. 273
    , 285 (2012) (postwaiver
    statement that "I'm not going on with this conversation" was
    clear invocation), with Commonwealth v. Leahy, 
    445 Mass. 481
    ,
    488-489 (2005) (postwaiver statement -- "Not right now, in a
    minute. I need to figure some things out" -- in response to
    question whether defendant wanted to talk, was not clear
    invocation).
    13
    Nonetheless, we take the word "stop" to mean what it
    says. A suspect's or defendant's use of the word "stop," or the
    phrase, "I would like to stop at that point," in this context
    should raise a red flag for an interrogating police officer -- a
    signal that it is necessary at the very least for the officer
    immediately to pause in order to reflect on what the defendant
    has just said, and to consider whether the defendant is seeking
    to invoke his right to remain silent. As discussed in the text,
    that is not what happened here.
    21
    terminating the interview altogether or only expressing a wish
    not to talk specifically about the actual shooting incident.14
    See Santos, 463 Mass. at 286.   Assuming this to be the case, the
    uncertainty would have permitted the officers to ask a direct
    question designed to clarify the defendant's intent.   See id.
    ("The question . . . should be brief, worded only to elicit an
    affirmative or negative response concerning whether the suspect
    wants [to stop] and should not be designed to keep the suspect
    talking").   The officers here did not follow such a course,
    however.   Rather, when the defendant stated he "would like to
    stop at that point," McNeill, who was questioning the defendant
    at the time, immediately pressed on with arguments for why the
    defendant should keep speaking about the shooting incident.    It
    was only a bit later, following a series of questions by McNeill
    about the gun the defendant had used, that Gagnon abruptly
    announced a "two minute" break that actually lasted fifty-one
    minutes.   During the break the defendant was brought to the
    restroom, but otherwise kept in the interview room alone,
    14
    Gagnon testified at the hearing on the motion to suppress
    that the fifty-one minute break taken in the interview at his
    behest was taken in part because Gagnon did not "fully
    understand" what the defendant meant when the defendant said he
    wanted to stop (i.e., he did not understand whether the
    defendant meant to invoke his rights to remain silent and to
    counsel), and Gagnon wanted to "clarify" that point -- and to
    "regroup, to talk to our supervisors" who were watching the
    interview through a two-way mirror.
    22
    although he was given reading glasses and a drink.   At some
    point before the break ended, Gagnon apparently returned to the
    room and asked the defendant in substance about whether he
    wanted to continue.   According to Gagnon, this conversation,
    which was not audio recorded, lasted about three minutes, but
    there is no indication that Gagnon specifically sought
    clarification about the meaning of the defendant's earlier
    statement about wishing to stop, or that he referenced that
    earlier statement at all.15
    In these circumstances -- where McNeill did not seek to
    clarify but sought to keep the defendant talking, where a break
    occurred before any effort at all was made to inquire about the
    defendant's wishes about speaking to the police, and where no
    reference ever was made to the defendant's statement about
    15
    At the motion to suppress hearing, Gagnon testified to
    his memory of the substance of his conversation with the
    defendant about wanting to continue. After this unrecorded
    conversation, the audio-recorded interview resumed with both
    officers present, and the following exchange occurred:
    McNeill: "Since the time we took a break, there's probably
    been about a half hour break or so. You told us you don't have
    a problem talking to us."
    Defendant:   "No."
    McNeill:   "Is that correct?"
    Defendant:   "Yes."
    The defendant was then given a fresh set of Miranda
    warnings and signed a waiver form.
    23
    wanting to stop -- we conclude that the officers "exceeded the
    narrow scope that was permitted [to clarify], and intruded into
    the defendant's invocation of his right" to remain silent.       See
    Santos, 463 Mass. at 287.
    When a person in custody has exercised his right to cut off
    police questioning, this does not "create a per se proscription
    of indefinite duration upon any further questioning by any
    police officer on any subject[.]"    Michigan v. Mosley, 
    423 U.S. 96
    , 102-103 (1975).   Rather, once such a person invokes this
    right, we must inquire "whether the person's right to be free
    from interrogation, once exercised, was 'scrupulously honored'
    before questioning resumed."     Commonwealth v. Atkins, 
    386 Mass. 593
    , 598 (1982), quoting Mosley, 
    supra at 104
    .     To do so, we
    consider factors such as whether "the police (1) had immediately
    ceased questioning; (2) resumed questioning 'only after the
    passage of a significant period of time and the provision of a
    fresh set of warnings'; and (3) limited the scope of the later
    interrogation 'to a crime that had not been a subject of the
    earlier interrogation'" (Mosley factors).     Clarke, 461 Mass. at
    344, quoting Mosley, 
    supra at 106
    .
    In this case, the first and third Mosley factors
    unmistakably favor the defendant.    As to the first, when the
    defendant invoked his right to silence, the officers did not
    immediately cease questioning.    
    Id.
       Instead, in an obvious
    24
    effort to "overcome the defendant's resistance to
    interrogation," Commonwealth v. Brant, 
    380 Mass. 876
    , 884-885,
    cert. denied, 
    449 U.S. 1004
     (1980), McNeill immediately reminded
    the defendant that the crime already had happened and that there
    were numerous witnesses, and persisted in questioning the
    defendant about the gun he had used.   Although Gagnon called for
    a break shortly thereafter, by that point, McNeill had already
    pressured the defendant to talk and had obtained additional
    substantive statements from him.16   With respect to the third
    16
    The pressure on the defendant to answer questions about
    the shooting incident continued in force after the break. At
    that time, the defendant was given a fresh set of Miranda
    warnings and signed a waiver. Shortly thereafter, McNeill
    broached the topic of the shooting itself, stating, "[W]hat's
    happened happened. We just need your side of the story on how
    and why so we can put closure to this ordeal." The defendant
    then made a series of general inculpatory statements about the
    circumstances, and his feelings, in the moments leading up to
    the shooting. Thereafter, the officers' questions focused on
    the shooting incident. When asked how he and the victim had
    ended up in the chemical yard together the defendant stated:
    "Can I let this one go by, this question" and McNeill responded,
    "Absolutely." The defendant then indicated that he was willing
    to talk from the point when he left the scene of the shooting,
    and the officers respected that request for about six minutes
    before McNeill resumed questioning the defendant about the
    shooting itself. The defendant then stated -- at least four
    times -- that he did not want to answer or that he wanted to
    leave parts out, but McNeill persisted, telling the defendant
    that his answers would allow McNeill "closure and just to put an
    end to it" and to "learn from it and understand it." After this
    exchange, the defendant again said that he would talk only about
    the period after the shooting. The officers respected this
    directive for about four minutes before McNeill once more urged
    the defendant to describe the incident from his perspective. At
    that point, the defendant spoke openly about the shooting,
    describing what had occurred in the chemical yard, how the
    25
    Mosley factor, the officers plainly did not limit the scope of
    the later interrogation "to a crime that had not been a subject
    of the earlier interrogation."     Clarke, 461 Mass. at 344,
    quoting Mosley, 
    423 U.S. at 106
    .    Here, there was no separate
    crime ever at issue.17   Compare Mosley, 
    supra at 105
     (no
    violation when second interrogation focused on "a crime
    different in nature and in time and place of occurrence" from
    subject of first interrogation), with Commonwealth v. Taylor,
    
    374 Mass. 426
    , 435 (1978) (when subsequent "questioning of the
    defendant was not restricted to an unrelated crime, the police
    had departed from the procedure approved in Mosley, and . . .
    the judge was warranted in finding the defendant's Miranda
    rights to have been violated").
    Assessment of the second Mosley factor is less clear.     The
    second factor looks at the passage of time between the
    individual's invocation of the right to remain silent and the
    resumption of police questioning.    There is no bright line that
    victim's "survival instincts kicked in," how the victim was
    trapped because the gate was locked, the number of shots fired,
    and how the defendant had fled the scene. The defendant also
    stated that, ever since an incident with the victim involving a
    forklift several months earlier, discussed infra, he brought his
    gun to work "every day" without anyone else knowing.
    17
    Although the defendant ultimately was convicted of
    various firearms offenses in addition to murder in the first
    degree, those charges all stemmed from the same shooting; there
    is no evidence that the officers ever were investigating the
    defendant's involvement in a separate criminal episode.
    26
    divides what would be a permissible break from one that is too
    short to be acceptable.18   Nonetheless, because there was no
    meaningful change in circumstances before and after the fifty-
    one minute break between the defendant's invocation and the
    officers' return to questioning -- the defendant remained in
    police custody, was returned to the same room, and did not
    reinitiate questioning on his own, and when questioning resumed
    the same officers continued with the interview on the same
    subject -- the fifty-one minutes likely did not constitute a
    "significant period of time" sufficient to honor the defendant's
    invocation of his right to silence, even with the administration
    of a fresh set of Miranda warnings.   See Commonwealth v.
    Callender, 
    81 Mass. App. Ct. 153
    , 158 n.5 (2012) (thirty-five-
    minute break between interrogations insufficient, particularly
    in light of officers' violation of other Mosely factors).
    18
    Compare, e.g., Commonwealth v. Brant, 
    380 Mass. 876
    , 882-
    883, cert. denied, 
    449 U.S. 1004
     (1980) (fourteen minutes
    between interrogations impermissible), with Commonwealth v.
    Woodbine, 
    461 Mass. 720
    , 729-730 (2012) (no violation seventeen
    hours after invocation); Commonwealth v. Rivera, 
    424 Mass. 266
    ,
    269 (1997) (no violation three and one-half hours after
    invocation, fresh Miranda warnings given, and defendant never
    questioned by booking officer in first interview); Commonwealth
    v. Santo, 
    375 Mass. 299
    , 304 (1978) (no violation where
    invocation was previous day, fresh Miranda warnings given, and
    second interview was in different city); Commonwealth v.
    Avellar, 
    70 Mass. App. Ct. 608
    , 616 (2007) (no violation two
    hours after invocation and fresh Miranda warnings given).
    27
    In sum, considering the totality of the circumstances, the
    officers did not "scrupulously honor" the defendant's invocation
    of his right to silence.    The question is whether that error was
    harmless beyond a reasonable doubt.    See Chapman v. California,
    
    386 U.S. 18
    , 24 (1967); Commonwealth v. Santos, 463 Mass. at
    287.    To make this determination, we consider factors such as
    "the importance of the evidence in the prosecution's case;
    the relationship between the evidence and the premise of
    the defense; who introduced the issue at trial; the
    frequency of the reference; whether the erroneously
    admitted evidence was merely cumulative of properly
    admitted evidence; the availability or effect of curative
    instructions; and the weight or quantum of evidence of
    guilt."
    Commonwealth v. Tyree, 
    455 Mass. 676
    , 701 (2010), quoting
    Commonwealth v. Dagraca, 
    447 Mass. 546
    , 553 (2006).
    The Commonwealth contends that any error in this case was
    harmless beyond a reasonable doubt because the erroneously
    admitted statements were largely cumulative of other evidence,
    and the evidence of the defendant's guilt was overwhelming.     The
    defendant disagrees, arguing that the prejudicial impact of his
    image and words on the video was too strong to be considered
    harmless.    The Commonwealth's points are not without merit:
    there is overlap between a good number of the defendant's
    statements after he invoked his right to end the interview and
    properly admitted evidence of statements he had volunteered to
    police the day before the interview, and the evidence of the
    28
    defendant's guilt was indeed extremely strong.    But for reasons
    we explain infra, we conclude that the erroneous admission of
    the defendant's postinvocation statement, when considered in
    combination with (1) the prosecutor's use in his closing
    argument of that statement and other improper aspects of the
    closing, and (2) errors in the judge's final instruction on
    mental impairment, was not harmless and reversal of the
    defendant's murder conviction is required.     Because the issue
    bears on our consideration of the closing argument and may arise
    at a new trial, we first consider the defendant's claims of
    error relating to the admission of prior bad act evidence.
    3.     Prior bad acts.   The defendant argues that the
    prosecution improperly introduced prior bad act and character
    evidence for which the unfair prejudice substantially outweighed
    its probative value.   The Commonwealth counters that the
    evidence complained of was properly admitted because it
    "established a pattern of workplace violence and hostility
    towards co-workers," and therefore was relevant and admissible
    to show the defendant's capacity to form the intent required for
    conviction; and that because the defendant touched on these same
    topics in his interview with the police, he "opened the door" to
    most of the prior bad act evidence admitted at trial.
    The general rule governing prior bad act evidence is well
    settled:
    29
    "The prosecution may not introduce evidence that a
    defendant previously has misbehaved, indictably or not, for
    the purpose of showing his bad character or propensity to
    commit the crime charged, but such evidence may be
    admissible if relevant for some other purpose. . . . Such
    evidence can be highly prejudicial to the defendant, and
    therefore must be excluded unless it comes within one of
    the permitted uses, such as to show a common scheme,
    pattern of operation, absence of accident or mistake,
    identity, intent, or motive [or state of mind]."
    (Citations omitted.)
    Commonwealth v. Helfant, 
    398 Mass. 214
    , 224–225 (1986).    Accord
    Commonwealth v. Sharpe, 
    454 Mass. 135
    , 143 (2009).
    Additionally, to be admissible, a defendant's prior bad acts may
    not be too remote in time.   (Citation omitted.)    Commonwealth v.
    Butler, 
    445 Mass. 568
    , 574 (2005).   Here, the prior bad act and
    character evidence the defendant complains of includes:    (1) a
    previous incident between the defendant and the victim over a
    forklift; (2) a previous incident between the defendant and
    another Baystate employee, Miguel Carballido, over a forklift;
    and (3) derogatory comments about Haitian women that the
    defendant allegedly made in the victim's presence.    We consider
    each separately.
    (i)   Prior forklift incident with victim.     The Commonwealth
    presented evidence of a confrontation between the defendant and
    the victim over the use of a forklift at work that occurred in
    November, 2008, approximately three months before the victim was
    killed.   The evidence came in through the testimony of other
    Baystate employees as well as from the portion of the
    30
    defendant's statement to police that was properly admitted at
    trial.19   There was no error in the admission of this evidence.
    It tended to show the antagonistic character of the defendant's
    and the victim's relationship, was not too remote in time, and
    was probative of the defendant's motive, state of mind, and
    intent.    See, e.g., Commonwealth v. Rosenthal, 
    432 Mass. 124
    ,
    126-128 (2000) (evidence of violent relationship between
    defendant and victim, including two black eyes sustained by
    victim, admissible to demonstrate motive, intent, and rebut
    defendant's claim of lack of criminal responsibility);
    Commonwealth v. Ashman, 
    430 Mass. 736
    , 741-742 (2000) (evidence
    of altercation between defendant and victim in month preceding
    murder properly admitted to show defendant's state of mind,
    intent, and relationship with victim).   See generally
    Commonwealth v. Morgan, 
    460 Mass. 277
    , 289 (2011), quoting
    Robidoux, 450 Mass. at 158 ("Determinations of the relevance,
    probative value, and prejudice of such evidence are left to the
    sound discretion of the judge, whose decision to admit such
    evidence will be upheld absent clear error").
    19
    Specifically, in his interview with police, the defendant
    described this series of events: when the defendant used the
    forklift, the victim, who claimed to be using it, approached the
    defendant, grabbed him, "jacked him up," and said, "I'll F --
    you up" while threatening to "knock [the defendant] out." After
    this occurred, the defendant "got into a stinking rage" and
    backed his own vehicle into the victim's car.
    31
    (ii)    Prior forklift incident between defendant and
    Carballido.   The prosecutor elicited testimony from Baystate
    employee Miguel Carballido, who was Mexican, that for at least
    three years, the defendant, who was from Trinidad, would "always
    bother" him at work in various ways, including calling
    Carballido a racist and making comments about Mexicans.
    Carballido testified that in June, 2008, approximately six
    months before the killing, the defendant took a forklift that
    Carballido was using.   On realizing that the defendant had done
    so, Carballido physically pulled the defendant from the
    forklift, and the defendant "pulled a knife" on Carballido.     In
    response, Carballido picked up a stick and challenged the
    defendant; the defendant walked away, and the confrontation
    ended.   The day after this incident, the defendant threatened to
    shoot and kill Carballido.
    Throughout the defendant's statement to police, including
    the properly admitted portion, he portrayed himself as the
    victim of harassment and intimidation by both Carballido and the
    victim, and implied that they acted together to antagonize him.
    Admission of the forklift incident with Carballido served to
    rebut the defendant's assertions about the source of his hostile
    relationships with both men, thereby providing the jury with a
    complete picture of those relationships.   See Commonwealth v.
    McCowen, 
    458 Mass. 461
    , 479 (2010) (defendant's cross-
    32
    examination of police officer "opened the door" for prior bad
    act evidence on redirect to rebut implications raised by defense
    counsel); Commonwealth v. Maimoni, 
    41 Mass. App. Ct. 321
    , 327-
    328 (1996) (prior bad acts admissible, in part, to rebut
    defendant's testimony).   See also Commonwealth v. Young, 
    382 Mass. 448
    , 463 (1981) (prior bad act evidence admissible to show
    full picture of entire relationship between defendant and
    victim).   Further, although it presents a close question,
    evidence of the defendant's state of mind toward another
    Baystate employee was arguably probative of his state of mind
    and intent toward the victim.   Cf. Commonwealth v. Riley, 
    467 Mass. 799
    , 818 (2014) (defendant's abuse toward other children
    probative of his state of mind toward child who was victim of
    murder).   As such, the trial judge did not abuse her discretion
    in admitting the Carballido evidence.
    (iii) Defendant's comments about Haitian women.    Baystate
    employee Shane Nixon testified that, in the summer of 2008, he
    and the victim were having a conversation about the women they
    were dating, both of whom were Haitian or of Haitian descent.
    The defendant interjected, "You'd pretty much be a fool to date
    a Haitian woman."   Nixon also related that after that initial
    comment, the defendant purposely made additional negative
    remarks about Haitian women in the victim's presence and that
    these comments upset the victim.   The comments illustrated a
    33
    facet of the defendant's relationship with the victim -- a
    proper nonpropensity purpose -- and we cannot say that the trial
    judge abused her discretion in admitting evidence of them.20    See
    Commonwealth v. Mendes, 
    441 Mass. 459
    , 464-465 (2004) (verbal
    fights between defendant and victim admissible to demonstrate
    defendant's hostile relationship with victim).   See also
    Commonwealth v. Thomas, 
    448 Mass. 180
    , 188 (2007); Commonwealth
    v. Robertson, 
    408 Mass. 747
    , 750-751 (1990).
    4.   Prosecutor's closing argument.   The defendant complains
    that the prosecutor's closing argument prejudiced his trial and
    warrants reversing his convictions.   He specifically argues that
    the prosecutor:   (1) impermissibly commented on the defendant's
    invocation of his right to silence; (2) misused -- for character
    and propensity purposes -- the prior bad act evidence that had
    been admitted solely on the issues of motive, intent, and
    relationship between defendant and victim; and (3) affirmatively
    misrepresented certain evidence.   We agree that the closing was
    improper.21
    20
    In connection with each instance of prior bad act
    evidence, the trial judge gave a thorough instruction to the
    jury about the limited purpose for which they could consider the
    evidence, and she repeated this limiting instruction in her
    final jury charge.
    21
    The defendant did not object to the prosecutor's closing
    and therefore, the closing argument is subject to review under
    the substantial likelihood of a miscarriage of justice standard.
    Commonwealth v. Jenkins, 
    458 Mass. 791
    , 796 (2011). To the
    34
    We summarize the critical portions of the prosecutor's
    closing.    Near the beginning of his argument, the prosecutor
    told the jury that "this case started back in November of 2008"
    with the "forklift incident":
    "[A]fter [the forklift incident,] . . . the gun's
    coming to work. . . . My gun, a loaded gun, it's coming
    with me because at some point sometime I'm going to use it.
    And this day, January 28th, was the time. Premeditation
    can be a matter of seconds, and the Court will tell you, or
    it can be longer. In this case you have both. He was
    thinking about taking out [the victim] since early
    November."
    . . .
    "[D]on't ever get in his face. Don't ever confront
    him like Miguel [Carballido] did[,] or he'll pull a knife
    on you."
    The prosecutor then reprised the forklift incidents with the
    victim and Carballido as well as the defendant's comments to the
    two men as follows:
    "He jumps on the forklift. He does it just to
    irritate people when they're using it. That's why he
    talked to [the victim] about, you shouldn't go out with
    Haitian women. That's why he called Miguel a Mexican.
    It's the world of Clyde Howard."
    "Knife to Miguel; violent, rams the car in a stinking
    rage."
    Shortly thereafter, the prosecutor discussed the defendant's
    January 29, 2009, statement to the police, saying,
    extent that the defendant did not raise all of the errors
    contained in the prosecutor's closing argument, we consider them
    in the following discussion as part of our review pursuant to
    G. L. c. 278, § 33E.
    35
    "Defense counsel says, oh, he really can't remember
    the details. Kind of having a bad day. It's a . . .
    little fuzzy. What did he tell the police? I'll talk to
    you guys, but there are certain things I'm not going to
    talk about because they might incriminate me. And the
    police say[], okay, whatever. Those are your rights. And
    he never wanted to go there. He didn't want to talk about
    the gun. He didn't want to talk about where it was. He
    didn't want to talk about the shooting because it might
    incriminate him. No kidding, Clyde. He's a violent man."
    Toward the end of the closing, the prosecutor turned to
    testimony from the defense expert Joss, using it to undercut the
    defendant's theory of diminished capacity.   The prosecutor
    stated:
    "Defense counsel says there's only one Clyde Howard.
    That's not what Dr. Joss said. He agreed with me; there
    are two sides to him. He wants to please his superiors,
    Roczynski, Najarian, McGaffigan. He looks down to people
    he feels are inferior to Clyde Howard and makes derogatory
    comments towards them and is arrogant towards them. That's
    what that fancy little test showed.[22]
    "Do you know what else it showed? He has a history of
    intimidating his wife and his children -- intimidating.
    That's the other side of Clyde Howard. He's a mean man,
    he's an intimidating man, he's a violent man who took a
    life with no justification, no reason."
    "He deserves no sympathy. He didn't snap. You don't
    snap when you bring a gun to work [f]or over two months
    loaded."
    These excerpts from the closing reflect essentially two
    categories of impropriety:   (1) use of portions of the
    22
    The "fancy little test" is a reference to the
    psychological testing performed by Joss as part of his
    examination of the defendant.
    36
    defendant's statements that were obtained in violation of his
    Miranda rights; and (2) propensity-based argument.
    a.   Miranda rights.   The prosecutor referred to the
    defendant bringing a loaded gun to work for several months at
    the beginning and the end of the closing, and also referenced
    the defendant’s unwillingness to discuss with the police either
    the shooting itself or the gun he used in the shooting.      Each of
    these references was to the portion of the defendant's statement
    that followed his invocation of the Miranda-protected right to
    cut off questioning and remain silent -- the portion that should
    not have been admitted in evidence.
    By including the two references to the defendant's decision
    to bring a loaded gun to work for months preceding the shooting,
    the prosecutor directly connected it to the defendant's capacity
    to form the necessary intent for deliberately premeditated
    murder.   Moreover, by making these references at the beginning
    and close to the end of the argument the prosecutor created
    bookends that served to highlight the premeditation theme.23     See
    23
    It bears emphasis that although, as the Commonwealth
    contends, there was substantial, properly admitted evidence --
    including the volunteered statements of the defendant to the
    police the day before his custodial interview -- that the
    defendant possessed a gun on the day of the killing, apart from
    the defendant's erroneously admitted statement, no evidence was
    before the jury that the defendant had been bringing the gun,
    loaded, to work every day for two or three months before the
    killing. See note 16, supra.
    37
    Tyree, 455 Mass. at 702-704 (prosecutor's use of
    unconstitutionally admitted evidence as organizing theme of
    closing rendered error harmful).
    As for the comments about the defendant's desire not to
    answer questions about the gun or the actual shooting incident,
    by arguing, "He didn't want to talk about the shooting because
    it might incriminate him," the prosecutor in effect connected
    the defendant's invocation of his right to remain silent to the
    issue of his substantive guilt.    Using the invocation of Miranda
    rights to comment on a defendant's substantive guilt is strictly
    prohibited.   See Doyle v. Ohio, 
    426 U.S. 610
    , 619 (1976);
    Commonwealth v. Mahdi, 
    388 Mass. 679
    , 694 (1983), citing United
    States v. Hale, 
    422 U.S. 171
    , 175, 181 (1975).     In addition,
    this section of the prosecutor's argument sought to emphasize
    the rational thought process of the defendant during the
    interview to undercut defense's theory that he suffered from
    diminished capacity at the time of the crime.    Cf. Wainwright v.
    Greenfield, 
    474 U.S. 284
    , 295 (1986) (defendant's post-Miranda
    silence inadmissible to prove criminal responsibility); Madhi,
    supra at 694-695 (same).
    b.   Prior bad acts and propensity.    As discussed, the trial
    judge did not abuse her discretion in admitting evidence of
    certain prior bad acts committed by the defendant.    But, as the
    judge explained to the jury both when the evidence was admitted
    38
    and in her final charge, this evidence was only to be used for
    the limited purpose of evaluating the defendant's motive,
    intent, state of mind, or, in some instances, the nature of the
    relationship between the defendant and the victim -- not for
    assessing the defendant's character.    See Part 3, supra.   In his
    closing, the prosecutor repeatedly and quite blatantly ignored
    the judge's evidentiary limitation; the argument is laced with
    remarks describing the defendant as a "mean" and "violent man"
    likely to commit violent acts -- i.e., using the bad acts
    directly as propensity evidence and negative character evidence.
    This use is forbidden and prejudicial.    See Helfant, 
    398 Mass. at 224-225
    .   See also Commonwealth v. Anestal, 
    463 Mass. 655
    ,
    672 (2012) ("It is implicit in the general rule regarding the
    inadmissibility of prior bad acts evidence that admission of
    such evidence carries with it a high risk of prejudice to the
    defendant" [citation omitted]).
    The prosecutor's attempt to paint the defendant in a
    negative light reached its nadir with the reference to the
    defendant's intimidation of his family -- a reference that also
    misrepresented the evidence at trial.    The prosecutor asserted
    that the psychological testing performed by Joss showed the
    defendant had a history of intimidating his wife and children.
    Although Joss had stated at trial, in response to the
    prosecutor's question on cross-examination, that the defendant
    39
    had had, in the past, a history of being intimidating, there was
    no suggestion by Joss that this "history" of intimidation was
    revealed by a psychological test of the defendant.24      More to the
    point, the prosecutor transformed Joss's reference to a past
    "history" into a current character trait of the defendant,
    summarizing:     "Intimidating.   That's the other side of Clyde
    Howard.     He's a mean man, he's an intimidating man, he's a
    violent man who took a life with no justification, no reason."
    In sum, the prosecutor's extensive use of propensity-based
    argument in his closing was improper.      It remains to evaluate
    the impact of these improprieties and the prosecutor's erroneous
    use of portions of the defendant's statement in the argument.
    We do so in conducting our review of the entire case under G. L.
    c. 278, § 33E.     See Part 6, infra.
    5.     Jury instructions.    The defendant claims error in the
    judge's final charge on mental impairment, the voluntariness of
    the defendant's statement, and the inference of malice the jury
    were permitted to draw from the intentional use of a dangerous
    weapon.25
    24
    That the defendant had a (past) history of "intimidating"
    his wife and children came from Joss's report; the specific
    quotation from the report that the prosecutor elicited during
    cross-examination was that, "[the defendant] did have a history
    from years back of being intimidating to his wife and children."
    25
    The defendant's claim relating to the permissible
    inference of malice from intentional use of a dangerous weapon
    40
    a.    Mental impairment.   The judge instructed the jury on
    mental impairment following her full instructions on the
    elements of murder in the first degree committed with deliberate
    premeditation and committed with extreme atrocity or cruelty.
    The instruction is reproduced below.26
    appears to be that the judge's repetition of this instruction
    immediately following each separate definition or explanation of
    a prong of malice, without any concomitant explanation that the
    mental impairment claimed by the defendant also could be
    considered in relation to each of the prongs, constituted error
    in the circumstances of this case. See Commonwealth v. Miller,
    
    457 Mass. 69
    , 72-76 (2010). Given our conclusion that the
    judge's instruction on mental impairment, in itself, was
    erroneous, we need not decide this point.
    26
    The judge stated:
    "Now, when considering and determining whether the
    Commonwealth has proven beyond a reasonable doubt the
    elements in first degree murder by deliberate premeditation
    and/or first degree murder by extreme atrocity or cruelty,
    you may consider the following. In determining whether the
    Commonwealth has proven beyond a reasonable doubt the
    defendant's intent to commit first degree murder by
    deliberate premeditation or by extreme atrocity or cruelty,
    you should consider all the credible evidence relevant to
    the defendant's intent, including any credible evidence of
    the defendant's mental impairment on the defendant.
    "In determining whether the Commonwealth has proven
    beyond a reasonable doubt the defendant's knowledge at the
    particular time, you should consider all the credible
    evidence relevant to the defendant's knowledge, including
    any credible evidence of the defendant's mental impairment
    on the defendant."
    The judge repeated essentially the same mental impairment
    instruction at the end of her instruction on murder in the
    second degree.
    41
    The instruction in itself is confusing, given its
    suggestion that the Commonwealth was required to prove "intent
    to commit first degree murder by deliberate premeditation or by
    extreme atrocity or cruelty."   The Commonwealth does not have
    such a burden.   Rather, the Commonwealth's obligation is to
    prove "malice" -- a term that certainly focuses on intent, but
    each of its prongs has a meaning distinct from "intent to commit
    murder by deliberate premeditation" or "by extreme atrocity or
    cruelty."   But of greater significance, and similar to
    Commonwealth v. Gonzalez, ante 410, 421-422 (2014), insofar as
    the judge's explanation of mental impairment focused solely on
    intent (and associated knowledge), the instruction never
    explained that the jury might consider the defendant's mental
    impairment in weighing whether the defendant more generally
    committed the crime with extreme atrocity or cruelty, an
    instruction that was required in substance.27   See id.;
    Commonwealth v. Rutkowski, 
    459 Mass. 794
    , 798 (2011);
    Commonwealth v. Gould, 
    380 Mass. 672
    , 685-686 & n.16 (1980).
    See also Model Jury Instructions on Homicide 62 (1999); 
    id.
     at
    27
    The judge similarly failed to explain to the jury that
    they could consider the defendant's mental impairment in
    determining whether the Commonwealth had proved the defendant:
    (1) acted with malice -- any one of the three prongs; and (2)
    deliberately premeditated the victim's killing -- i.e., whether
    he thought before acting, and whether his decision to kill was
    based on reflection for some period of time. See Model Jury
    Instructions on Homicide 62 (1999; id. at 40-41, 46 (rev. 2013).
    These omissions, too, constituted error.
    42
    49 (rev. 2013).28   Particularly where the defendant's entire
    defense was based on his allegedly impaired mental state, the
    omission of these instructions was error.29
    b.   Voluntariness.   Concerning the judge's instruction on
    the voluntariness of the defendant's statements.   The judge
    stated:
    "You may consider whether the statements, if any, made by
    [the defendant] were calculated to exculpate or mitigate
    his actions, such as an inference might be drawn that he
    knew his statements to the police could have adverse
    consequences, and therefore, you may draw an inference that
    he made the statements voluntarily. Or you may not draw
    28
    The 1999 version of the Model Jury Instructions on
    Homicide (1999) reflects this point, and the 2013 version does
    so even more clearly. See Model Jury Instructions on Homicide
    49 (rev. 2013) ("You may consider the defendant's mental
    condition at the time of the killing, including any credible
    evidence of mental impairment . . . in determining whether the
    Commonwealth has proved beyond a reasonable doubt that the
    defendant committed the killing with extreme atrocity or
    cruelty"); Model Jury Instruction on Homicide 62 (1999) ("More
    particularly, you may consider any credible evidence of the
    defendant's mental impairment in determining . . . whether the
    defendant acted in a cruel or atrocious manner in causing the
    death of the deceased"). We urge trial judges to use these
    instructions on mental impairment in their complete form.
    29
    During the charge conference that the judge held the day
    before instructing the jury, the defendant's counsel in
    substance raised the points we have just discussed in objecting
    to the Commonwealth's proposed instruction on mental impairment.
    After the judge charged the jury, however, defense counsel
    simply stated his objection "to not providing the mental
    impairment instruction that I submitted." Because we consider
    the errors in the mental impairment instruction in combination
    with other errors in conducting the review required by G. L.
    c. 278, § 33E, see Part 6, infra, we need not decide whether the
    defendant's objection to the mental impairment instruction was
    preserved.
    43
    that inference and you may determine that that inference is
    not reasonable."
    As the Commonwealth points out, there are cases that offer
    support for considering the fact that a defendant made an
    exculpatory statement in the course of a police interrogation in
    determining whether statements were voluntary.     See, e.g.,
    Commonwealth v. Davis, 
    403 Mass. 575
    , 581 (1988); Commonwealth
    v. Vasquez, 
    387 Mass. 96
    , 99-100 (1982).   These cases, however,
    did not involve jury instructions but were reviews of denials of
    motions to suppress.   In a case such as this, where a claim of
    mental impairment is made and is central to the case, there is a
    potential for misuse by a jury, that is, a risk that the
    exculpating nature of the defendant's words or statements will
    be used as evidence of his mental capacity.    A jury instruction
    such as the one given is better left unsaid.
    6.   Review under G. L. c. 278, § 33E.     "Our duty under
    G. L. c. 278, § 33E, is to consider broadly the whole case on
    the law and the facts to determine whether the verdict is
    'consonant with justice.'"   (Citation omitted.)    Gould, 
    380 Mass. at 680
    .
    We have discussed previously that the admission of the
    defendant's postinvocation statement constituted error, in
    violation of the defendant's constitutional right to remain
    silent; and that, because the defendant objected to the
    44
    statement's admission, the error must be shown to be harmless
    beyond a reasonable doubt.   Chapman v. California, 
    386 U.S. at 24
    ; Santos, 463 Mass. at 287.   Although many of the defendant's
    postinvocation remarks were cumulative, evidence that the
    defendant had been carrying a gun to work every day for two to
    three months distinctly was not, and as described in Part 4,
    supra, this admission by the defendant became an important focal
    point of the prosecutor's closing argument.   Furthermore, the
    admission of the defendant's postinvocation statement placed
    before the jury the defendant's repeated requests to the
    officers not to answer questions about the shooting itself or to
    leave parts of the narrative out, and two instances of damning
    explanation as to why the defendant chose this path:   because it
    left him appearing "guilty" (Gagnon's word)30 and as "the
    culprit" (the defendant's word).31   The jury obviously could view
    30
    At about twelve minutes after the postinvocation portion
    of the interview began, the officers' questioning zeroed in on
    the actual shooting. As indicated, see note 16, supra, when
    asked how he and the victim ended up in the chemical yard
    together, the defendant stated: "Can I let this one go by, this
    question" and McNeill responded, "Absolutely." The conversation
    resumed and shortly thereafter the defendant stated, "That's not
    what happened so I want to leave that part out." Gagnon
    responded: "So you want to cut a certain part out because that
    leaves you guilty, and you don't want to talk about that, and I
    have no problem with that . . . . We'll skip that section,
    okay? That's not a problem." (Emphasis added.)
    31
    Later than the point in the interview described in note
    30, supra, Detective McNeill asked:
    45
    the defendant's reluctance to speak about the details of the
    shooting as reflecting repeatedly his consciousness of guilt,
    brought home even more clearly by the "guilty" and "culprit"
    remarks, which was stressed by the prosecutor in his closing.
    McNeill: "At this time, is there anything else you want to
    share with us on the event because, again, it will allow us
    closure on the events and -- because we've already had the
    statements from the four employees. But again to hear your side
    of the story and then how it got into the middle of the
    warehouse and out to the [d]umpster, because there's still a
    little gap there that we need to know and for my own self. It's
    not going to affect anyone else, but it just gives me a closure
    why -- . . . ."
    Defendant:    "That part is [inaudible].   Can I leave that
    part out?"
    McNeill: "Well, it's happened. If you want to leave it
    out, leave it out, but it would allow me closure and just to put
    an end to it, just to get it off your chest and say, hey, here
    it is, this is what happened. It's over and done with."
    Defendant: "I know, but that part I'd like to leave because
    -- "
    McNeill: "But you understand my point?      So I can, you
    know, learn from it and understand it."
    Defendant: "Well, it's just that that point -- I mean,
    that part I want to leave out because -- "
    . . .
    Gagnon: "Clyde, what is it? Is it the intimate details
    that's bothering you, like you don't want to talk about the
    intimate details here or like what -- let us know what's going
    on in your head as far as this."
    Defendant: "Well, there's certain details I would like
    to leave out there because I'd have to -- I mean not to give the
    other, but this particular part here it could be construed as
    though I -- well, I'm the culprit" (emphasis added).
    46
    In addition, the specific details about the shooting incident
    and his own appreciation of the victim's state of mind (see note
    16, supra), which the defendant finally supplied to the officers
    near the end of his statement, were chilling and could certainly
    be understood by the jury as evidence of deliberate
    premeditation as well as extreme atrocity or cruelty.   The
    potential for prejudice to the defendant arising from the
    admission of the statement -- both in itself and then as used by
    the prosecutor in the closing -- is obvious.
    The defendant was convicted of murder in the first degree
    committed with deliberate premeditation and also committed with
    extreme atrocity or cruelty.   Although the evidence of the
    defendant's guilt under both theories was very strong, with
    respect to deliberately premeditated murder, we cannot say that
    the erroneous admission of the defendant's postinvocation
    statement, and its use by the prosecutor in his closing, was
    harmless beyond a reasonable doubt.32   See Commonwealth v.
    32
    As for the closing argument, the defendant did not object
    to it, despite his objection to various portions of evidence
    that became the basis for errors in the prosecutor's closing.
    It also is true that the prosecutor's argument contained
    substantial sections that were entirely proper. Nevertheless,
    "[t]his is not a case in which a fleeting, isolated, improper
    statement in an otherwise proper argument could, in the context
    of the entire closing argument, be deemed nonprejudicial."
    Commonwealth v. Lewis, 
    465 Mass. 119
    , 132 (2013). The
    prosecutor's comments –- those concerning the erroneously
    admitted postinvocation evidence and the improper propensity
    statements that in part found their source in the postinvocation
    47
    Perrot, 
    407 Mass. 539
    , 549 (1990) (in determining whether error
    was harmless beyond reasonable doubt, "[t]he essential question
    is whether the error had, or might have had, an effect on the
    jury and whether the error contributed to or might have
    contributed to the verdicts").
    Turning to murder committed with extreme atrocity or
    cruelty, we similarly conclude that a combination of errors
    created sufficient harm to require reversal on that theory.     As
    discussed, a number of the defendant's postinvocation statements
    that were admitted in error provided support for the jury to
    find extreme atrocity or cruelty, as did the propensity-based
    descriptions of the defendant in the prosecutor's closing
    argument.   It is true that in contrast to deliberate
    premeditation, the prosecutor did not use postinvocation
    evidence in his closing explicitly to build the case for a
    finding of extreme atrocity or cruelty.   At the same time,
    however, the errors in the judge's instruction on mental
    impairment had a particularly prejudicial effect.   In relation
    evidence -- permeated the closing, and as earlier discussed, the
    prosecutor's erroneous bookend references to the postinvocation
    evidence that the defendant was carrying a gun for several
    months before the killing focused explicitly on the defendant's
    capacity to deliberately premeditate -- an issue at the heart of
    the defense: the defendant's argument to the jury at the end of
    the case was that he was guilty of murder in the second degree,
    not first. Further, although the judge explained to the jury
    that closing arguments were not evidence, her charge did not
    contain any targeted instructions designed specifically to
    mitigate the effect of the argument errors. See id. at 131.
    48
    to extreme atrocity or cruelty, the judge's mental impairment
    instruction, which focused solely on intent and knowledge,
    missed the mark:   "Intent and knowledge are not aspects of
    extreme atrocity or cruelty."    Rutkowski, 459 Mass. at 797-798.33
    Rather, as was true in that case, "[i]t should have been made
    clear to the jury that they could consider evidence of mental
    impairment on the specific question whether the murder was
    committed with extreme atrocity or cruelty."     Id. at 798.   "A
    jury could have found the defendant's act intentional, yet not
    extremely atrocious or cruel, due to the defendant's [mental
    impairment]. . . .    [T]he jury should reflect the community's
    conscience in determining what constitutes an extremely cruel or
    atrocious killing."    Commonwealth v. McDermott, 
    393 Mass. 451
    ,
    458 (1984).   See Gould, 
    380 Mass. at 685-686
    .   See also
    Gonzalez, ante at 422-423.
    7.   Conclusion.    The defendant's conviction of murder in
    the first degree on the theories of extreme atrocity or cruelty
    and deliberate premeditation is vacated.    The Commonwealth has
    33
    The potential for prejudice arising from the
    concentration on intent and knowledge of an instruction on
    mental impairment appears to be less in relation to the theory
    of deliberate premeditation. In contrast to extreme atrocity or
    cruelty, intent is an aspect of deliberate premeditation, which
    requires the Commonwealth to prove both an intent to kill as
    well as at least some intentional reflection on the part of the
    defendant. See Commonwealth v. McMahon, 
    443 Mass. 409
    , 418
    (2005). See also Model Jury Instructions on Homicide 39-40
    (rev. 2013).
    49
    the option of either retrying the defendant on the murder
    indictment or accepting a reduction of the verdict to murder in
    the second degree, which was the verdict urged by the defendant
    at his first trial.34   See Gonzalez, ante 424; Commonwealth v.
    Thomas, ante 531, 532 (2014).   See also Commonwealth v. Bell,
    
    460 Mass. 294
    , 310 (2011).   The Commonwealth shall inform this
    court within fourteen days of the date this opinion issues
    whether it will retry the defendant for murder in the first
    degree or move to have the defendant sentenced to murder in the
    second degree.   After the Commonwealth so informs us, we will
    issue an appropriate rescript to the Superior Court.
    So ordered.
    34
    Throughout this case, the defendant consistently has
    admitted that he killed the victim. In his opening statement to
    the jury, the defendant's counsel appeared to suggest that the
    jury should find the defendant guilty of manslaughter, and
    counsel later requested a manslaughter instruction as part of
    the final charge to the jury. The judge denied the request,
    however, because she found it lacking support in the evidence.
    The defendant does not press the point on appeal, and review of
    the trial evidence leads us to agree with the judge's
    conclusion.