Commonwealth v. Correia

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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.