Commonwealth v. Correia ( 2023 )


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    revision and are superseded by the advance sheets and bound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-13223
    COMMONWEALTH   vs.   ANILDO LOPES CORREIA.
    Plymouth.     October 7, 2022. - June 12, 2023.
    Present (Sitting at Plymouth): Budd, C.J., Gaziano, Lowy,
    Cypher, Kafker, Wendlandt, & Georges, JJ.
    Homicide. Evidence, Disclosure of evidence, Relevancy and
    materiality, Prior misconduct, Inflammatory evidence, Self-
    defense. Self-Defense. Jury and Jurors. Practice,
    Criminal, Discovery, Disclosure of evidence, Cross-
    examination by prosecutor, Jury and jurors, Instructions to
    jury.
    Indictment found and returned in the Superior Court
    Department on June 16, 2015.
    The case was tried before Brian A. Davis, J.
    The Supreme Judicial Court granted an application for
    direct appellate review.
    Eva G. Jellison (Melissa Ramos also present) for the
    defendant.
    Johanna S. Black, Assistant District Attorney, for the
    Commonwealth.
    Rebecca Kiley, Committee for Public Counsel Services, Leon
    Smith, Joshua M. Daniels, & Katharine Naples-Mitchell, for
    Citizens for Juvenile Justice & others, amici curiae, submitted
    a brief.
    2
    BUDD, C.J.    The defendant, Anildo Lopes Correia, was
    charged with murder in the first degree in connection with the
    stabbing death of Ywron Martins.   After a jury trial, the
    defendant was convicted of the lesser charge of voluntary
    manslaughter, and was sentenced to from ten to twelve years in
    State prison on June 17, 2019.   We granted the defendant's
    application for direct appellate review, and for the reasons
    discussed infra, we affirm.1
    Background.   We recite the facts the jury could have found
    at trial, reserving certain details for later discussion.      On
    the late afternoon of April 22, 2015, in a Brockton park
    multiple fights broke out amongst a large group of individuals
    between fourteen and twenty years of age.    The defendant, who
    went to the park to look for his cousin, began fist fighting
    with the victim soon after he arrived.    Although there was
    conflicting testimony regarding how the fight began, at some
    point the defendant gained the upper hand, landing a punch that
    caused the victim to stumble backward.    The defendant then
    lifted the victim's shirt, pulled out a knife, and began
    thrusting it into the victim's body.     The defendant continued to
    1 We acknowledge the amicus brief submitted by Citizens for
    Juvenile Justice, Committee for Public Counsel Services,
    Massachusetts Association of Criminal Defense Lawyers, New
    England Innocence Project, Charis E. Kubrin, and Jack Lerner.
    3
    attack the victim with the knife after police had arrived,
    announced their presence, and engaged their sirens.
    At trial, the defendant testified that the victim and he
    once were friendly and remained "friends" on social media
    platforms until the day of the fight.     The defendant admitted
    that he stabbed the victim but that he did so believing that the
    victim was reaching for a gun.
    The defendant further testified that after he punched the
    victim, causing him to stumble back, the defendant laughed and
    asked the victim if "that's all he ha[d], that's all he got."
    The victim then looked at the defendant and said, "[N---a], do
    you know how the hot shit feel?"     The defendant understood the
    question to be a lyric from a rap song known to him at the time,
    meaning "[do] you know how to burn from the bullets?"     According
    to the defendant, the victim then took off his backpack and
    reached inside.   The combination of the victim's words and
    reaching into his backpack caused the defendant to believe that
    the victim was about to pull out a gun to shoot him.     Fearing
    this, the defendant testified that he lunged at and stabbed the
    victim with a pocketknife.   He continued to do so in an attempt
    to get the victim to drop the bag.     When the defendant heard
    police announce themselves, he began to run, but as he did so,
    the victim grabbed his shirt, so he continued punching the
    victim "trying to get out of there."     The defendant eventually
    4
    ran from the park, in the process dropping the jacket that
    contained the knife he had used in the fight.
    The victim was not breathing and had no pulse when
    emergency personnel arrived.   He was pronounced dead at a
    hospital.   An autopsy revealed that the victim had twelve wounds
    created by a sharp instrument, two of which were fatal:    one
    that penetrated the victim's heart, and another that struck the
    victim's liver.   Police located the defendant four days later in
    Fall River.
    Discussion.    On appeal, the defendant argues that a number
    of errors entitle him to a new trial:   (1) rap lyrics written by
    the defendant erroneously were admitted both because the
    Commonwealth violated its discovery obligations and because they
    were unduly prejudicial; (2) the Commonwealth improperly
    commented on the defendant's prearrest silence, suggesting that
    it indicated his culpability; (3) one of the deliberating jurors
    was not fair and impartial; and (4) the instructions provided to
    the jury misstated the law on self-defense.     The defendant also
    argues that the cumulative effect of the errors requires
    reversal.
    1.   Defendant's rap lyrics.   As part of his self-defense
    strategy, the defendant testified about and offered in evidence
    posts he had seen on the victim's Facebook social media account.
    The posts included images of the victim seated with a pistol,
    5
    the victim covering his face with a rifle behind him, the victim
    seated in a car with a knife in his hand, and the victim seated
    in front of a motorcycle with a pistol across his lap.   The
    defendant testified that he saw this last photograph on the day
    of the fight, along with another image of the victim posted with
    the caption:   "Don't Let a Sneak Dissin to a Murder," which the
    defendant said he understood to mean, "Don't get killed over
    talking behind somebody's back."   The defendant testified that
    the posts, together with the victim's statement during the
    fight, prompted his belief that the victim possessed, and was
    prepared to use, a gun.
    During cross-examination, the Commonwealth asked the
    defendant about his own social media posts, including four rap
    songs the defendant wrote and posted to his "channel" on the
    video sharing Web site YouTube.    The Commonwealth questioned the
    defendant on select lyrics from these songs that included
    "[l]iving this [l]ife of [c]rime," "being at war with the
    north," "[e]nemies [t]urn[ing] to [m]emories," and "I love my
    Glock, pop, now you're dead."   The Commonwealth also asked about
    another song, the cover image of which depicted an unidentified
    person in a T-shirt with an AK-47.    Trial counsel objected to
    the prosecution's references to the defendant's lyrics and cover
    image as prior bad acts of which the Commonwealth had not given
    notice.   That objection was overruled.   The following day
    6
    counsel moved for a mistrial, arguing that the defendant never
    received notice of the Commonwealth's intention to use them and
    that, had notice been given, counsel would have made different
    decisions, including advising the defendant not to testify.2    The
    motion was denied.
    a.   Rule 14 (a) of the Massachusetts Rules of Criminal
    Procedure.   The Commonwealth is required to "disclose to the
    defense . . . [a]ny written or recorded statements, and the
    substance of any oral statements, made by the defendant"
    "provided [they are] relevant to the case and [are] in the
    possession, custody or control of the prosecutor."   Mass. R.
    Crim. P. 14 (a) (1) (A) (i), as amended, 
    444 Mass. 1501
     (2005).
    The Commonwealth contends that, because the defendant's rap
    lyrics were publicly available online, the prosecution never
    possessed, controlled, or had custody of them within the meaning
    of Mass. R. Crim. P. 14, as appearing in 
    442 Mass. 1518
     (2004)
    (rule 14).   We take a broader view of what it means for
    2 According to the Commonwealth, it discharged its discovery
    obligations when it turned over a police report, which stated
    that a witness told police "she knows [the defendant] to have
    rap music on YouTube under the name AC$TACK$." This argument
    hinges on the Commonwealth's assertion that because it did not
    have possession, custody, or control of the defendant's lyrics,
    it only was required to "notify the defendant of the existence"
    of his lyrics. Mass. R. Crim. P. 14 (a) (1) (E), as appearing
    in 
    442 Mass. 1518
     (2004).
    7
    something to be "in the possession, custody or control of the
    prosecutor" than does the Commonwealth.
    The operative terms at issue, "possession," "custody," and
    "control," are not defined in rule 14.    Moreover, their ordinary
    meanings may be broad or narrow depending on the context of
    their use.   For example, "possession" may be "actual" or
    "constructive," "exclusive" or "joint."     Black's Law Dictionary
    1408-1409 (11th ed. 2019).3   Similarly, "control" can be the
    "direct or indirect power to govern the management and policies
    of a person or entity" or, more generally, "the power or
    authority to manage, direct, or oversee."    Id. at 416.
    In considering the phrase "possession, custody or control,"
    we note that our discovery rules "were created to permit defense
    counsel to learn, through discovery of the government's
    evidence, what the defendant faces in standing trial, and to
    assist in preventing trial by ambush."    Commonwealth v. Edwards,
    
    491 Mass. 1
    , 8 (2022), quoting Commonwealth v. Eneh, 
    76 Mass. 3
     Black's Law Dictionary 1408 (11th ed. 2019) defines
    "possession" as:
    "1. The fact of having or holding property in one's power;
    the exercise of dominion over property. 2. The right
    under which one may exercise control over something to the
    exclusion of all others; the continuing exercise of a claim
    to the exclusive use of a material object. 3. Civil law.
    The detention or use of a physical thing with the intent to
    hold it as one's own. . . . 4. (usu. pl.) Something that
    a person owns or controls. . . . 5. A territorial
    dominion of a state or country."
    8
    App. Ct. 672, 677 (2010).    See Commonwealth v. Frith, 
    458 Mass. 434
    , 439 (2010) ("The purpose of mandatory discovery is to
    encourage full pretrial discovery, increase what will be
    discovered by both sides, and promote judicial efficiency"
    [citation omitted]).    Given the purpose of the rule, it is
    appropriate to take a comprehensive view of the phrase.    Cf.
    Commonwealth v. Hanright, 
    465 Mass. 639
    , 641-643 (2013)
    ("examination" interpreted broadly under Mass. R. Crim. P. 14
    [b] [2] [B]).4
    The Commonwealth argues that because the statements at
    issue here were on a third-pary website, it did not control
    them.    However, "[o]nce a third-party record is obtained by the
    Commonwealth . . . it becomes part of the prosecutor's case
    file, triggering discovery obligations."    Commonwealth v.
    Kostka, 
    489 Mass. 399
    , 412 (2022).    Although the record is
    silent as to the form the lyrics took,5 the prosecutor obviously
    had access to the statements because she quoted from them during
    her cross-examination of the defendant.    She also showed the
    defendant a photograph of the image that was displayed alongside
    4 We have done the same in the civil context. For example,
    we have interpreted the term "control" broadly under the
    analogous civil discovery rule. See Strom v. American Honda
    Motor Co., 
    423 Mass. 330
    , 341 (1996).
    5 At trial, the prosecutor indicated that she never
    downloaded the lyrics; however, during the cross-examination of
    the defendant she nevertheless quoted them verbatim.
    9
    one of his rap songs, mentioned supra.    In these circumstances,
    we consider the lyrics to have been in the prosecutor's files,
    in electronic form or otherwise; thus, the Commonwealth was
    obligated to disclose them under rule 14.6
    Nevertheless, we further conclude that the judge did not
    err in denying the defendant's motion for a mistrial based on
    the Commonwealth's discovery violation.    "When the issue of the
    timeliness of disclosure is presented, we inquire whether 'the
    defendant is able to make effective use of the evidence in
    preparing and presenting the case.'"     Commonwealth v. Felder,
    
    455 Mass. 359
    , 367 (2009), quoting Commonwealth v. Cronk, 
    396 Mass. 194
    , 200 (1985).   Where, as here, the defendant does not
    allege bad faith on the part of the prosecutor, we consider
    whether the discovery violation prejudiced the defendant.
    Commonwealth v. Nolin, 
    448 Mass. 207
    , 224 (2007).    "In measuring
    prejudice, it is the consequences of the delay that matter, not
    the likely impact of the nondisclosed evidence, and we ask
    6 The Commonwealth's additional arguments against disclosure
    similarly are unavailing. The claim that by requiring such
    disclosure, the prosecution would be "required to track down and
    copy items of social media not already in its possession" is
    obviously incorrect based on the plain language of the rule.
    See Commonwealth v. Torres, 
    479 Mass. 641
    , 648 (2018) (if "[t]he
    district attorney does not have access to the [third-party's]
    files[,] . . . the practical indicia of the prosecutor's
    'possession, custody, or control' are absent"). Moreover,
    disclosure of the defendant's statements alone cannot be
    considered protected work product, nor does such disclosure
    implicate the "best evidence" rule.
    10
    whether the prosecution's disclosure was sufficiently timely to
    allow the defendant to make effective use of the evidence in
    preparing and presenting his case" (quotations and citations
    omitted).   
    Id.
       See Commonwealth v. Lao, 
    460 Mass. 12
    , 20
    (2011).
    Once the motion for a mistrial was denied, on redirect
    examination trial counsel elicited testimony from the defendant
    that he had been writing rap lyrics since junior high school,
    they were a form of art, and they were based on observations he
    has made but were not about him personally.    In doing so, the
    defendant effectively mitigated the negative effect of the
    Commonwealth's late disclosure.7   See Commonwealth v. Baldwin,
    
    385 Mass. 165
    , 176 (1982); Commonwealth v. Cundriff, 
    382 Mass. 137
    , 151 (1980), cert. denied, 
    451 U.S. 973
     (1981).    Moreover,
    the defendant obviously already was familiar with his own
    lyrics, making the timing of their disclosure unlikely to affect
    his ability to respond.    See Frith, 
    458 Mass. at 443
    , citing
    Commonwealth v. Schand, 
    420 Mass. 783
    , 789-790 (1995).    Finally,
    7 We note that trial counsel did not request additional time
    either to investigate or to prepare for redirect examination
    after the defendant's rap lyrics were raised by the
    Commonwealth. See Commonwealth v. Emerson, 
    430 Mass. 378
    , 382
    (1999), cert. denied, 
    529 U.S. 1030
     (2000); Commonwealth v.
    Gilbert, 
    377 Mass. 887
    , 895-896 (1979). Contrast Commonwealth
    v. Vaughn, 
    32 Mass. App. Ct. 435
    , 441-443 (1992) (abuse of
    discretion in denial of mistrial where defendant demonstrated
    that more time was needed to develop defense fully after late
    disclosure of evidence).
    11
    the defendant's claim that he might have decided not to testify
    had he known that the Commonwealth was going to cross-examine
    him with his rap lyrics is belied by his acknowledgement that
    his testimony -- the only evidence at trial supporting his
    theory of self-defense -- "was the single most important
    evidence" in his case.8   We conclude, therefore, that the
    defendant was not prejudiced by the Commonwealth's delayed
    disclosure.   See Cundriff, 
    supra at 150
     ("There is no showing
    that the defendant was significantly prejudiced at trial by the
    late disclosure of the statement or how a new trial would
    substantially cure any error").
    b.   Admissibility of the lyrics.   As noted, when the
    prosecution questioned the defendant about several rap songs he
    had posted online, trial counsel objected.   The following day,
    counsel moved for a mistrial, arguing that the lyrics were
    irrelevant and highly prejudicial.   On appeal, the defendant
    renews this claim, arguing that his rap lyrics were inadmissible
    because they were not relevant to the case or, alternatively, if
    they were relevant, any possible probative value of the evidence
    was outweighed by the risk of unfair prejudice.
    8 The defendant also argues that had the prosecutor
    disclosed that he planned to use the defendant's lyrics, the
    defendant might have argued more effectively to exclude them.
    Because, as discussed in further detail infra, we conclude that
    the admission of the lyrics was not unduly prejudicial, this
    argument fails as well.
    12
    As discussed in more detail infra, we conclude that the
    defendant's rap lyrics were relevant for the purpose of
    rebutting the defendant's theory of self-defense.      However, they
    should have been analyzed as prior bad act evidence potentially
    admissible for a nonpropensity purpose.      See Mass. G. Evid.
    § 404(b)(2) (2023); Commonwealth v. Crayton, 
    470 Mass. 228
    , 249
    n.27 (2014).    See also Mass. G. Evid § 403 note.    To the extent
    that any of the lyrics were found to be admissible, they should
    have been considered by the jury for the narrow purpose of
    determining whether the defendant truly believed the victim was
    carrying a firearm.      Although the foregoing is not the way the
    trial unfolded, we nonetheless conclude that the defendant was
    not prejudiced by the admission of his lyrics.
    i.   Relevance.   In denying the defendant's request for a
    mistrial, the judge ruled that the defendant's rap lyrics were
    relevant to rebut the defendant's theory of self-defense.      The
    defendant argued that it was reasonable for him to assume that
    the victim had a gun at the park because the defendant had seen
    the victim's social media posts that depicted the victim with a
    gun.   In response, the Commonwealth offered the defendant's own
    posts, consisting of rap lyrics posted to YouTube, that also
    contained references to guns, to shed light on the sincerity of
    the defendant's concern that the victim possessed a gun.      The
    judge agreed that the lyrics were admissible in this limited
    13
    context.   See Commonwealth v. Adjutant, 
    443 Mass. 649
    , 654
    (2005).
    The defendant argues on appeal that the judge erred in
    finding the lyrics to be relevant because it was only in the
    context of their fight and the victim's threat that the
    defendant found the posts threatening, not the victim's posts in
    and of themselves.9   In other words, because he did not "react[]
    solely to violence-themed posts on social media," the defendant
    maintains that his own posts were irrelevant.    We do not agree.
    We review a judge's determination of relevance for an abuse
    of discretion.   Commonwealth v. Andre, 
    484 Mass. 403
    , 414
    (2020).    The threshold for determining whether evidence is
    relevant is a low one.    Commonwealth v. Gerhardt, 
    477 Mass. 775
    ,
    782 (2017).    The evidence "need not establish directly the
    proposition sought; it must only provide a link in the chain of
    proof."    
    Id.,
     quoting Commonwealth v. Sicari, 
    434 Mass. 732
    , 750
    (2001).    See Mass. G. Evid. § 401.   The defendant maintained
    that he was convinced the victim had a gun in part because he
    saw the victim's posts featuring guns.     However, the defendant
    himself also posted (lyrics) about guns and testified that they
    9 The defendant's theory was that it was reasonable for him
    to believe that the victim was likely to use a gun based on the
    victim's statement, just prior to the physical altercation, in
    one of the victim's posts referencing what it feels like to get
    shot.
    14
    were not meant to be taken literally.   Thus, the defendant's own
    posts were probative of whether the victim's posts gave rise to
    an actual and reasonable fear that the victim had a gun.    The
    trial judge did not abuse his discretion in concluding that the
    defendant's own rap lyrics were relevant.10   See Commonwealth v.
    Teixeira, 
    486 Mass. 617
    , 627 (2021).
    ii.   "Bad act" evidence.   Generally, relevant evidence is
    subject to exclusion "if its probative value is substantially
    outweighed by a danger of," among other things, "unfair
    prejudice."   Mass. G. Evid. § 403.11   However, when the relevant
    evidence in question is so-called "bad act" evidence, the test
    10On appeal, the Commonwealth appears to argue for the
    first time that the defendant's lyrics were admissible because
    they were "likely literal." However, there was no suggestion at
    trial that the defendant's lyrics had anything to do with the
    victim or that any of the acts mentioned in the lyrics had taken
    place (nor were they admitted on that basis). Cf. Commonwealth
    v. Keown, 
    478 Mass. 232
    , 243 (2017) (admitting evidence of
    defendant's computer username based on "fictional criminal
    mastermind" for "limited purpose," i.e., not to show that
    defendant was, in fact, criminal mastermind). Of course,
    "[e]vidence of a crime, wrong, or other act is not admissible to
    prove a person's character in order to show that on a particular
    occasion the person acted in accordance with the character."
    Mass. G. Evid. § 404(b)(1). See Commonwealth v. Anestal, 
    463 Mass. 655
    , 665 (2012), quoting Commmonwealth v. Helfant, 
    398 Mass. 214
    , 224-225 (1986).
    11Rule 403 of the Massachusetts Guide to Evidence states,
    "The court may exclude relevant evidence if its probative value
    is substantially outweighed by a danger of one or more of the
    following: unfair prejudice, confusing the issues, misleading
    the jury, undue delay, wasting time, or needlessly presenting
    cumulative evidence."
    15
    for admissibility is more rigorous.    As an initial matter,
    although such evidence is not admissible to demonstrate the
    defendant's bad character or propensity to commit the crimes
    charged, see Mass. G. Evid. § 404(b)(1), it may be admissible
    for other purposes, including, as relevant here, the defendant's
    state of mind.    See Commonwealth v. Philbrook, 
    475 Mass. 20
    , 26
    (2016); Mass. G. Evid. § 404(b)(2).     However, even if offered
    for a permissible purpose, bad act evidence nevertheless is
    inadmissible where "its probative value is outweighed by the
    risk of unfair prejudice to the defendant, even if not
    substantially outweighed by that risk."     Mass. G. Evid.
    § 404(b)(2).     See Crayton, 
    470 Mass. at
    249 n.27.
    The defendant argues that the lyrics should have been
    analyzed under the bad act evidence standard for admissibility.
    See Mass. G. Evid. § 404(b)(2).     The judge rejected this view on
    the basis that a song does not "qualif[y] as a bad act."       This
    is not necessarily so.
    "The nature of so-called prior bad act . . . evidence . . .
    is that it reflects badly on the character of the defendant."
    Commonwealth v. Veiovis, 
    477 Mass. 472
    , 481 (2017).     "[O]ur
    focus is on whether the . . . evidence 'creates a risk that the
    jury will use the evidence impermissibly to infer that the
    defendant has a bad character or a propensity to commit the
    crime charged."     Commonwealth v. Valentin, 
    474 Mass. 301
    , 308
    16
    (2016), quoting Commonwealth v. McGee, 
    467 Mass. 141
    , 156
    (2014).   To this end, bad acts are not limited to unlawful acts.
    Id. at 307.   See, e.g., Commonwealth v. Lowery, 
    487 Mass. 851
    ,
    866 (2021) (analyzing "text messages contain[ing] vulgar sexual
    references" as bad act evidence); Commonwealth v. Chalue, 
    486 Mass. 847
    , 866, 870 (2021) (analyzing membership in Aryan
    Brotherhood, drawings of human dissections, and photographs of
    weapons as bad act evidence).
    As the Supreme Court of New Jersey aptly put it:
    To be sure, writing rap lyrics -- even disturbingly graphic
    lyrics . . . -- is not a crime. Nor is it a bad act or a
    wrong to engage in the act of writing about unpalatable
    subjects, including inflammatory subjects such as depicting
    events or lifestyles that may be condemned as anti-social,
    mean-spirited, or amoral. However, the very purpose of
    Rule 404(b) is simply to keep from the jury evidence that
    the defendant is prone to commit crimes or is otherwise a
    bad person, implying that the jury needn't worry overmuch
    about the strength of the government's evidence"
    (quotations and citations omitted).
    State v. Skinner, 
    218 N.J. 496
    , 517 (2014).    In short, "[r]ule
    404(b) serves as a safeguard against propensity evidence that
    may poison the jury against a defendant."     
    Id.
    Although rap lyrics do not qualify as bad act evidence,12
    here, the defendant's lyrics conveyed ideas or acts that
    12 We have considered rap lyrics to be bad act evidence on
    at least one other occasion. See Commonwealth v. Gray, 
    463 Mass. 731
    , 743-744, 752-753 (2012) (music appearing to
    demonstrate evidence of gang membership treated as bad act
    evidence).
    17
    themselves could be considered bad acts and therefore could
    reflect poorly on his character.   Some of the lyrics at issue
    here arguably describe committing crimes, including:   "[l]iving
    this [l]ife of [c]rime"; "being at war with the north";
    "[f]riends [t]urn to [e]nemies, [e]nemies [t]urn to [m]emories";
    and "I love my Glock, pop, now you're dead."   Other lyrics were
    less explicit, but equally likely to "paint the defendant as a
    violent person of bad character," Commonwealth v. Santos, 
    463 Mass. 273
    , 296 (2012), citing Commonwealth v. Barrett, 
    418 Mass. 788
    , 793 (1994), including:   "the [p]olice [c]an't [s]top [u]s";
    and "I keep my weapons everywhere in the field."   Because the
    defendant was on trial for murder, the rap lyrics he wrote
    referencing violence, possible gang affiliation, and killing
    enemies with guns should have been analyzed as bad act evidence
    under Mass. G. Evid. § 404(b) to determine admissibility.
    Indeed, each of the lyrics sought to be admitted should
    have been scrutinized separately to weigh prejudicial impact
    against probative value.   See Commonwealth v. Peno, 
    485 Mass. 378
    , 393-394 (2020).   If the probative value of a particular
    lyric was outweighed by the risk of unfair prejudice (even if
    not substantially so), the lyric should have been excluded from
    evidence.   See Mass. G. Evid. § 404(b)(2).
    There is unique potential for prejudice when using "the
    inflammatory contents of a person's form of artistic self-
    18
    expression" "without a strong connection to the" facts of a
    given case.   Skinner, 
    218 N.J. at 524-525
    .13    That is true
    especially when such thematic art is used as evidence in a
    criminal trial where violence is alleged, but where there is no
    factual link between the art and the alleged conduct.     See
    Commonwealth v. Gray, 
    463 Mass. 731
    , 754 & n.23 (2012).
    This risk is exacerbated by realities that we cannot
    ignore, namely, that rap historically has been used, by Black
    Americans especially, to give voice to observations of violence,
    poverty, and crime -- frequently irrespective of the rapper's
    own involvement -- as "a form of political expression."     Gray,
    
    463 Mass. at
    755 n.24, citing Dennis, Poetic (In)justice?       Rap
    Music Lyrics as Art, Life, and Criminal Evidence, 
    31 Colum. J.L. & Arts 1
     (2007).   See Dennis, supra at 20-21.    Moreover, in the
    context of criminal prosecution, it is difficult to separate the
    fact that Black Americans and other people of color
    disproportionately are overrepresented in the criminal legal
    13 See United States v. Gamory, 
    635 F.3d 480
    , 493 (11th
    Cir.), cert. denied, 
    565 U.S. 1080
     (2011) (lyrics that
    "contained violence" and "could reasonably be understood as
    promoting a violent and unlawful lifestyle" were "heavily
    prejudicial"); State v. Cheeseboro, 
    346 S.C. 526
    , 550 (2001),
    cert. denied, 
    535 U.S. 933
     (2002) ("general references
    glorifying violence" were "far outweighed by . . . unfair
    prejudicial impact as evidence of appellant's bad character,
    i.e., his propensity for violence in general").
    19
    system14 at the same time that rap music and its practitioners
    more likely are to be viewed negatively and as inherently
    violent or dangerous.15
    Courts in some jurisdictions have suggested that to be
    admitted in evidence, rap lyrics must have "a strong nexus" to
    the issues to be decided in the case.   See Montague v. State,
    
    471 Md. 657
    , 679 (2020) (both "nexus to the details" of alleged
    crime and "temporal nexus" are necessary); Skinner, 
    218 N.J. at 500
     (artistic "self-expression" must have "a strong nexus
    between the specific details of the artistic composition and the
    circumstances of the underlying offense" to be admissible).
    This "nexus" can be direct -- where rap music or lyrics recount
    key details of the events in a case -- or indirect -- where a
    defendant expresses through music evidence of knowledge, a
    motive, or another relevant fact in dispute, even though the
    music is not a literal account of events that took place.16    We
    14See generally E.T. Bishop, B. Hopkins, C. Obiofuma, & F.
    Owusu, Criminal Justice Policy Program, Harvard Law School,
    Racial Disparities in the Massachusetts Criminal System (Sept.
    2020); Commonwealth v. Sweeting-Bailey, 
    488 Mass. 741
    , 757-758
    (2021) (Wendlandt, J., concurring), cert. denied, 
    143 S. Ct. 135 (2022)
    ; 
    id.
     at 770 & n.9 (Budd, C.J., dissenting); Commonwealth
    v. Long, 
    485 Mass. 711
    , 716-717 (2020), and cases cited.
    15See generally Dunbar, Kubrin, & Scurich, The Threatening
    Nature of "Rap" Music, 22 Psychol., Pub. Pol'y, & L. 280, 288-
    290 (2016).
    16See United States v. Moore, 
    639 F.3d 443
    , 447-448 (8th
    Cir. 2011) (admitting rap lyrics as evidence of knowledge of
    20
    adopt this individualized approach to determining the
    admissibility of rap lyrics.
    Once bad act evidence is determined to be admissible,
    however, it is important for the jury to understand how it may
    be used in determining the facts of the case by way of limiting
    instructions.17   See McGee, 
    467 Mass. at 158
     ("Often a limiting
    instruction is required as to the proper use of such evidence to
    ensure that its probative value outweighs the danger of unfair
    prejudice").   Cf. Commonwealth v. Forte, 
    469 Mass. 469
    , 480-481
    (2014) (bad act evidence "served a limited and probative purpose
    of illustrating the defendant's angry state of mind" and "the
    jury were instructed on numerous occasions regarding the limited
    purpose").
    Here, because the judge did not consider the lyrics to be
    bad act evidence, the statements were not analyzed under
    § 404(b)(2).   Some of the lyrics that the jury heard, including
    drug "prices" and "code words"); United States v. Foster, 
    939 F.2d 445
    , 456 (7th Cir. 1991) (rap containing "drug code words"
    admissible to show knowledge of drug trade, not to show that
    defendant "was the character portrayed in the lyrics").
    17Although there generally is "no requirement that the
    judge give limiting instructions sua sponte," Commonwealth v.
    Cruzado, 
    480 Mass. 275
    , 279 (2018), quoting Commonwealth v.
    Sullivan, 
    436 Mass. 799
    , 809 (2002), we have said that where
    "the risk of unfair prejudice is apparent . . . contemporaneous
    limiting instructions are much to be preferred," even "if a
    defendant does not request them" (citations omitted). Peno, 485
    Mass. at 395-396.
    21
    those hightlighting living a life of crime, neighborhood wars,
    and disliking the police, hardly were probative of the
    defendant's self-defense claim.    Given their inflammatory
    themes, these lyrics could serve only to create an impression
    that the defendant was of poor character.    See Santos, 
    463 Mass. at 296
    , citing Barrett, 
    418 Mass. at 793
    .
    Other lyrics penned by the defendant, including "I love my
    Glock, pop, now you're dead," properly may have been admitted to
    help the jury determine whether the defendant actually believed
    that the victim had a gun in his backpack.     However, without
    limiting instructions, the risk was too great that the jury may
    have considered it (improperly) as propensity evidence as well.
    See Crayton, 
    470 Mass. at 249
    , citing Commonwealth v. Anestal,
    
    463 Mass. 655
    , 665 (2012).    See also Peno, 485 Mass. at 398.      In
    the absence of an instruction as to how the jury could consider
    the lyrics, their probative value was outweighed by their
    prejudicial effect.    See Commonwealth v. Facella, 
    478 Mass. 393
    ,
    407 (2017).
    iii.     Prejudice.   As the defendant timely objected to the
    introduction of the rap lyrics, we review the ruling for
    prejudice.    Anestal, 
    463 Mass. at 672
    .   "An error is
    nonprejudicial only if we are convinced that the error did not
    influence the jury, or had but very slight effect" (quotations
    and citations omitted).    Peno, 485 Mass. at 399-400.    A number
    22
    of factors may be taken into consideration in making this
    determination, including, but not limited to, the frequency of
    the improper references; whether the error was central to the
    trial; the strength of the Commonwealth's case; whether limiting
    instructions mitigated the error; and whether the jury were able
    to sort between the permissible and impermissible evidence such
    that the defendant was not prejudiced by the error.    See
    Anestal, 
    supra at 672-673
    ; Commonwealth v. Santiago, 
    425 Mass. 491
    , 500-501 (1997), S.C., 
    427 Mass. 298
     and 
    428 Mass. 39
    , cert.
    denied, 
    525 U.S. 1003
     (1998), and cases cited.
    Here, we conclude that the error did not prejudice the
    defendant.   Although the prosecutor questioned the defendant
    extensively on his lyrics during cross-examination, she did not
    mention them in her opening statement or closing argument.      See
    Commonwealth v. Rutherford, 
    476 Mass. 639
    , 649 (2017), citing
    Commonwealth v. LeBeau, 
    451 Mass. 244
    , 261 (2008).    Unlike in
    other cases, the lyrics did not pervade the trial.    See, e.g.,
    Anestal, 
    463 Mass. at 672-673
     (reversal where bad acts were
    "repeatedly introduced, through three separate witnesses, in
    significant detail").
    Further, the defendant's self-defense claim only partially
    hinged on his perception of the victim's posts.   Indeed, he
    still was able to testify in full to his basis for fearing the
    victim; that is, his defense was still viable after his own rap
    23
    lyrics were admitted.18    Contrast Commonwealth v. Santos, 
    460 Mass. 128
    , 129, 136-138 (2011) (prejudicial error where judge
    erroneously excluded most compelling evidence of self-defense).
    Moreover, on redirect, the defendant's testimony may have
    blunted the prejudicial effect of the lyrics when he explained
    that his lyrics and music were a "form of art" and his way "to
    express the community around me" and "not me, personally."        See
    Commonwealth v. Mason, 
    485 Mass. 520
    , 535 (2020) (risk of
    prejudice effectively mitigated on cross-examination).
    In addition, the Commonwealth's case was strong.       See
    Commonwealth v. Martinez, 
    431 Mass. 168
    , 174 (2000) (although
    witness's testimony regarding defendant's inculpatory statements
    and behavior "was important to the Commonwealth's case, it was
    not indispensable").     There was no question that the defendant
    killed the victim; instead, the prosecution needed only to prove
    that he did so without justification.     Although the defendant
    claimed to have acted in self-defense, his version of the fight
    was inconsistent with the accounts provided by other
    eyewitnesses who testified.    For example, the defendant
    testified that when police arrived, he started to run away and
    the victim grabed him.    However, one of the responding officers
    18As discussed infra, the jury were persuaded, at least in
    part, by the defendant's testimony that he acted in self-
    defense.
    24
    testified that when the police arrived, the sirens had no effect
    on the defendant, who had the victim "bent over, [with his]
    shirt[] completely over his head, so that he can't see or move,
    and [the defendant] was . . . giving him uppercuts to the body."
    Another witness stated that when the victim was "dazed," the
    defendant pulled the victim's shirt over his head and stabbed
    his chest, throat, and arm.   The medical examiner testified that
    the victim was stabbed twelve times.   The defendant, on the
    other hand, sustained only a cut on his thumb as a result of the
    attack.
    Additionally, although the judge did not give limiting
    instructions when the lyrics were admitted, prior to
    deliberations he instructed the jury to "act without bias or
    prejudice" and cautioned twice that they were not to be swayed
    by emotions or sympathy for either side.
    Finally, the jury's nuanced verdict suggests that they did
    not consider the defendant's rap lyrics as evidence of his
    character or propensity to commit crime.   That is, the jury did
    not adopt the Commonwealth's theory of the case and instead
    apparently credited much of the defendant's testimony, including
    that he acted in self-defense (but that he used excessive force
    in doing so).   See Commonwealth v. Bois, 
    476 Mass. 15
    , 35 (2016)
    (in acquitting on two charges and returning lesser verdict on
    another "the jury did not blindly accept the prosecutor's
    25
    arguments").   Given all of the above, we conclude that the
    defendant was not prejudiced by the references to his rap
    lyrics.
    2.     References to the defendant's prearrest silence.     At
    trial, the prosecutor made a number of references to the fact
    that the defendant failed to inform police that he had stabbed
    the victim in self-defense.    The defendant now contends that
    these references amounted to reversible error.    As discussed
    infra, a defendant's prearrest silence is admissible in very
    limited circumstances; substantive evidence of consciousness of
    guilt is not one of them.    Commonwealth v. Pierre, 
    486 Mass. 418
    , 433 (2020).
    As we have observed on more than one occasion, "there may
    be many reasons why a defendant does not wish to come forward
    and speak to the police that have no bearing on his [or her]
    guilt or innocence."    Commonwealth v. Gardner, 
    479 Mass. 764
    ,
    769 (2018).    In the event that a defendant takes the stand,
    however, prearrest silence may be used to impeach his or her
    credibility.    See Pierre, 486 Mass. at 433; Gardner, 
    supra at 768-769
    .   That is, the Commonwealth may raise the defendant's
    prearrest silence to show that, if the circumstances were as the
    defendant described them to be, it would be "natural" for the
    defendant to have said something at or near the time of the
    26
    event.19   Gardner, 
    supra at 769-770
    , citing Commonwealth v.
    Nickerson, 
    386 Mass. 54
    , 62 (1982).
    For example, in Commonwealth v. Barnoski, 
    418 Mass. 523
    ,
    534 (1994), where the defendant claimed to have witnessed his
    friend get shot, we concluded that the Commonwealth was
    permitted to question the defendant as to why he did not attempt
    to contact authorities to get help for his friend.   In that
    case, "there was . . . immediate danger to another that could
    have created an incentive to contact the police to get help."
    Pierre, 486 Mass. at 434, citing Barnoski, 
    supra at 534
    .
    Here, the prosecutor asked a series of questions about the
    defendant's failure to contact police regarding the fight.      In
    particular, the prosecutor asked the defendant why, if he had
    acted in self-defense, he had not (1) called police as he fled
    the park, (2) reported to police that a gun was at the park, (3)
    called police as he fled to a friend's house and later to Fall
    River, or (4) answered the door when police arrived at his
    location four days later.   The prosecutor also called to the
    stand four officers who had responded to the scene and asked
    19As a general matter, evidence of prearrest silence is of
    limited probative value as it pertains to a defendant's
    credibility. See Gardner, 
    479 Mass. at 769
    . Moreover, because
    jurors may "construe [prearrest] silence as an admission and, as
    a consequence, may draw an unwarranted inference of guilt," the
    admission of such evidence can be highly prejudicial. 
    Id.,
    quoting Commonwealth v. Nickerson, 
    386 Mass. 54
    , 61 n.6 (1982).
    27
    whether the defendant sought to speak with any of them.20    The
    Commonwealth argues that the questions appropriately countered
    the defendant's claims that he went to the park because he
    believed his cousin was in danger, and that he stabbed the
    victim because he believed the victim had a gun in his backpack.
    We are not convinced.
    The defendant had no obvious incentive to speak to police
    at the time of the incident or thereafter, as there was no
    immediate danger to his cousin or others and doing so "would
    have implicated him in the victim's death."   Gardner, 
    479 Mass. at 772
    .   Thus, referencing the defendant's prearrest silence was
    error.
    Because trial counsel did not object to the questions asked
    of the defendant on cross-examination, we review the error there
    to determine whether there is a substantial risk of a
    miscarriage of justice, i.e., "a serious doubt whether the
    result of the trial might have been different had the error not
    been made."   Commonwealth v. Brown, 
    479 Mass. 600
    , 610 (2018),
    quoting Commonwealth v. Dirgo, 
    474 Mass. 1012
    , 1016 (2016).
    Trial counsel did object to a question put to one of the
    20Although the defendant claims that the prosecutor also
    referenced the defendant's prearrest silence in her closing
    argument, the comment of which he complains referred to his
    flight from the area, not his silence, and was based on a
    statement he made on direct examination.
    28
    responding officers.    The objection was overruled.   We therefore
    review that question for prejudicial error; that is, whether the
    error "did not influence the jury, or had but very slight
    effect."    Peno, 485 Mass. at 399, quoting Commonwealth v.
    Vinnie, 
    428 Mass. 161
    , 163 (1998).    See Commonwealth v.
    Griffith, 
    45 Mass. App. Ct. 784
    , 785 n.2 (1998).    Under either
    standard, we ask whether the references to the defendant's
    prearrest silence improperly led the jury to ascribe
    "consciousness of guilt" to the defendant.    Pierre, 486 Mass. at
    433.    See Gardner, 
    479 Mass. at 769
    , quoting Nickerson, 
    386 Mass. at
    61 n.6 (jurors "may draw an unwarranted inference of
    guilt").
    Where there is other, properly admitted evidence of
    consciousness of guilt, e.g., flight, or where the improper
    references to prearrest silence are duplicative of proper
    evidence, a substantial risk of a miscarriage of justice is
    unlikely.    See Pierre, 486 Mass. at 434-435 (because of other
    evidence of flight, no substantial likelihood of miscarriage of
    justice); Gardner, 
    479 Mass. at 775
    , citing Commonwealth v.
    Cassidy, 
    470 Mass. 201
    , 217 (2014) (because of "his flight,
    [and] efforts to hide," no substantial likelihood of miscarriage
    of justice in references to defendant's prearrest silence);
    Commonwealth v. Niemic, 
    472 Mass. 665
    , 673 (2015), S.C., 
    483 Mass. 571
     (2019) (no substantial likelihood of miscarriage of
    29
    justice where improper questions about absence of self-defense
    explanation in prearrest statements "added little, if anything"
    to other, properly admitted statements).
    Here, during direct examination the defendant testified
    that he left the area for Fall River for several days and, when
    police arrived at his location, he hid in a bathroom.   In
    addition, trial counsel asked the defendant twice why he did not
    contact police.   Thus, the questions the prosecutor subsequently
    asked the defendant on cross-examination regarding his prearrest
    silence, although improper, elicited testimony that was somewhat
    duplicative of that which the defendant had provided on direct.
    Finally, the fact that the defendant was convicted of
    manslaughter, rather than murder in the first degree, was an
    indication that the jury accepted that the defendant's testimony
    that he, in fact, did act in self-defense.   There was no
    substantial risk of a miscarriage of justice as a result of the
    prosecution's references to, or unobjected-to questions about,
    the defendant's prearrest silence.   Contrast Commonwealth v.
    Irwin, 
    72 Mass. App. Ct. 643
    , 654-655 (2008) (substantial risk
    of miscarriage of justice where "there was no corroborating
    evidence or eyewitness testimony," Commonwealth focused on
    prearrest silence in closing, and defense had not offered
    similar evidence).   Nor did the one question to which trial
    counsel did object, regarding the defendant's prearrest silence,
    30
    amount to prejudicial error on its own.     See Commonwealth v.
    Gonzalez, 
    68 Mass. App. Ct. 620
    , 631-632 (2007) (no prejudice
    where "the jury's attention had been drawn to the defendant's .
    . . prearrest behavior by the defense" and where "[t]he
    reference to the issue was brief" and "evidence of guilt . . .
    was strong"); Commonwealth v. Martinez, 
    53 Mass. App. Ct. 327
    ,
    330-331 (2001).
    3.    Juror issue.   The defendant contends that a juror made
    comments indicating that she was no longer impartial and that
    the judge abused his discretion by allowing her to remain on the
    jury.     See Commonwealth v. Colon, 
    482 Mass. 162
    , 168 (2019), and
    cases cited.    This argument is unavailing.
    On the seventh day of trial, a court officer informed the
    judge that a juror had reported that individuals in the court
    room gallery were "staring" in "what may have been an
    intimidating manner," and that after court proceedings, a court
    spectator who had been sitting across from the jury box "pulled
    up alongside [another juror's] vehicle," "made eye contact with
    [her], pointed at [her], and then drove off."21    As a result of
    these reports, the judge conducted an individual voir dire of
    each juror to determine whether they had experienced, heard
    about, or been affected by any of these events.
    21The court room in which the trial was held had some
    gallery seating directly across from and facing the jury box.
    31
    During questioning, thirteen of the sixteen jurors reported
    members of the audience "staring" or "looking intently" at
    jurors during the trial.   Most did not personally observe this
    behavior, but stated they learned of it through other jurors.
    The judge asked each juror whether he or she could continue to
    serve as a juror in a fair and impartial manner.     Based on their
    answers, the judge found fourteen of the sixteen jurors to be
    "indifferent" with no objection from either party.     See
    Commonwealth v. Williams, 
    481 Mass. 443
    , 447 (2019).     One juror,
    who indicated that she could remain impartial despite the
    incidents, nevertheless was excused "out of an abundance of
    caution" because she expressed safety concerns.
    Juror no. 16, who reported observing more than one
    spectator "looking intently" at herself and at other members of
    the jury, indicated that she could remain fair and impartial,
    and denied fearing for her safety.   As a result of concerns that
    trial counsel expressed about the juror believing that the
    staring spectators were affiliated with the defendant, the judge
    asked the juror additional questions to probe her impartiality:
    The judge: "[D]o you think consciously or subconsciously
    the fact that somebody is sitting across from the jury box
    and staring at the jury who may be affiliated with the
    defendant would again affect in any way, creep into any of
    your thinking as to whether this defendant is guilty of the
    crimes in which he is charged?"
    32
    The juror: "I am waiting until I have all the evidence put
    in front of me, basically. I'm not going to worry about, I
    can't worry about that."
    The judge: "You can't worry about that meaning you can't
    worry about someone in the spectators' gallery."
    The juror: "I am assuming that anything, if anything ever
    did happen people here would be taking care of it, because
    I would be telling you. I would say I feel uncomfortable."
    The judge:   "And do you feel uncomfortable?"
    The juror:   "I'm fine."
    The judge:   "You're fine?"
    The juror:   "Yeah."
    The judge:   "So it doesn't cause you any discomfort?"
    The juror:   "Not at the moment.   I will tell you if it
    does."
    . . .
    The judge: "Again, you're comfortable that you can and
    will be fair and impartial --"
    The juror:   "Yes."
    The judge: "-- irrespective of the fact that you think
    maybe somebody --"
    The juror: "I don't think he's going to be out there.      I
    don't know if he's trying to intimidate me but I'm not
    going to be intimidated."
    The judge:   "I'm going to ask you to step back for a
    moment."
    The juror:   "All right."
    Although trial counsel expressed no concerns along these
    lines at trial, the defendant now claims that the judge abused
    33
    his discretion in refusing to remove juror no. 16 because the
    juror expressed antagonism and bias toward the defendant during
    the voir dire.    More specifically, the defendant contends that
    the juror was referring to the defendant when she said:     "I
    don't think he's going to be out there.    I don't know if he's
    trying to intimidate me but I'm not going to be intimidated."
    The defendant contends that the statement showed that the juror
    felt safe because the defendant would be found guilty and
    therefore would be incarcerated.
    This argument is based on an obvious misreading of the
    transcript.    It is clear from the context of the exchange that
    when the juror said "he," she was referring not to the defendant
    but instead to the spectator in the courtroom gallery who had
    been was staring at her and other jurors.
    After questioning the juror extensively, the judge
    determined that the juror would follow his instructions not to
    draw any inferences with regard to any of the spectators, and
    that she would base her verdict solely on the evidence presented
    at trial.     See Philbrook, 
    475 Mass. at 31
    , citing Commonwealth
    v. Guisti, 
    434 Mass. 245
    , 254 (2001), S.C., 
    449 Mass. 1018
    (2007).   There was no abuse of discretion.   See Colon, 
    482 Mass. at 168
    , citing Philbrook, 
    supra at 31
     ("Where a judge conducts
    individual voir dire of each juror, excuses all influenced
    jurors, and determines that the remaining jurors are impartial,
    34
    a defendant's right to an impartial jury has not been
    violated").
    4.    Jury instructions on excessive force in self-defense.
    Reciting the Model Jury Instructions on Homicide 80-82 (2018)
    almost word-for-word, the judge instructed the jury that
    "'excessive force' in self-defense means that considering all of
    the circumstances, the defendant used more force than . . . was
    reasonably necessary to defend himself."   The defendant argues
    that Commonwealth v. Kendrick, 
    351 Mass. 203
     (1966), the case
    from which the model instruction is derived, has been
    misinterpreted, and that, in fact, "excessive force" instead
    should be defined as "substantially more force than was
    reasonably necessary" (emphasis added).    Not so.
    In Kendrick, 
    351 Mass. at 211
    , "excessive force" is
    described as "unreasonable and clearly excessive in light of the
    existing circumstances" or "manifestly disproportionate."     The
    court makes clear in Kendrick that where a defendant claims
    self-defense, the question to be decided by the jury is whether
    the amount of force used was reasonable.   
    Id. at 211-212
    .    This
    concept has remained unchanged since Kendrick was decided.    See,
    e.g., Commonwealth v. Santos, 
    454 Mass. 770
    , 773 (2009);
    Commonwealth v. Boucher, 
    403 Mass. 659
    , 663 (1989); Commonwealth
    v. Harris, 
    376 Mass. 201
    , 208-209 (1978), S.C., 
    487 Mass. 1016
    (2021).   Indeed, we have noted that "a single punch in response
    35
    to a single punch" may be "unreasonable in the circumstances."
    Commonwealth v. King, 
    460 Mass. 80
    , 85-86, 89 (2011).
    Adding "substantially" to the phrase "more force than was
    reasonably necessary" would change the meaning of "excessive
    force" as we have defined it in our case law.      We decline to do
    so.
    5.   Cumulative effect of errors.    Finally, the defendant
    argues that in the absence of individual reversible error, the
    cumulative effect of the errors at trial created a substantial
    risk of a miscarriage of justice because nearly all of them22
    concerned his credibility and the question whether he used
    excessive force in self-defense.    See, e.g., Commonwealth v.
    Dwyer, 
    448 Mass. 122
    , 138-139 (2006); Commonwealth v. Yang, 
    98 Mass. App. Ct. 446
    , 454 (2020).    We disagree.
    The trial errors we detected, i.e., a discovery violation
    relating to, and the admission of, the defendant's lyrics, and
    the admission of the defendant's prearrest silence, did not in
    combination create a substantial risk of a miscarriage of
    justice.   As discussed supra, the jury apparently believed that
    the defendant acted in self-defense.      The question whether he
    used excessive force is a separate one that did not hinge solely
    The defendant does not count the so-called biased juror
    22
    claim as affecting the excessive use of force issue. In any
    event, as indicated supra, we conclude that the juror claim is
    without merit.
    36
    on the defendant's credibility.     Contrary to other cumulative
    error cases, the Commonwealth's case was not "word against
    word," Commonwealth v. Mazzone, 
    55 Mass. App. Ct. 345
    , 353
    (2002), quoting Commonwealth v. Dion, 
    30 Mass. App. Ct. 406
    , 415
    (1991), but relied on, among other things, the extent of the
    victim's injuries, the fact that the defendant was not injured
    when found, and numerous eyewitness accounts contradicting the
    defendant's account of the fight.     That the defendant's account
    was still credited in large part demonstrates that, in the
    context of the entire trial, there was no substantial risk of a
    miscarriage of justice.   See Commonwealth v. Russell, 
    439 Mass. 340
    , 351 (2003).
    Judgment affirmed.