Commonwealth v. McGee, 11 N.E.3d 1043

Defendant killed his wife (choking followed by stabbing) in Nov. 2007; the couple's 3½-year-old son, Gavin, witnessed the choking and later testified at trial. The stab wounds, inflicted after strangulation, caused death.
Defendant conceded he caused the death but claimed heat-of-passion (sudden provocation) rather than deliberate premeditation; jury convicted of first-degree murder (deliberate premeditation).
Commonwealth sought and the judge allowed Gavin (six at trial) to demonstrate on a courtroom couch how his mother was positioned during the choking; defense objected as prejudicial.
Defense attempted to use a police report to refresh witness Mark Vigeant’s recollection that the victim had proposed a sexual "threesome" to Vigeant that night; judge limited cross-examination because there was no evidence the defendant knew of that overture.
The judge gave cautionary instructions before the demonstration and in the final charge; defendant appealed the demo and the limitation on refreshing Vigeant’s recollection.

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (McGee)	Held
Admissibility of child’s courtroom demonstration of victim’s position	Demonstration was relevant, clarified child’s testimony, corroborated photographs, and not unduly prejudicial	Demonstration was more prejudicial than probative and risked unfair emotional impact	Affirmed: judge did not abuse discretion; demo was probative, brief, corroborative, and cured by instructions
Use of police report to refresh Vigeant re: victim’s sexual overture to Vigeant	Evidence of victim’s statements admissible only if defendant knew of them; no foundation shown that defendant was aware	Sought to refresh Vigeant with report to prove defendant learned of overture and was provoked	Affirmed: judge properly excluded use of report to elicit inadmissible out-of-court statements because defendant failed to show he was aware; no error in limiting refreshment

Commonwealth v. Noxon, 319 Mass. 495 (permission for demonstrations rests in judge's discretion)
Commonwealth v. Perryman, 55 Mass. App. Ct. 187 (demonstration must sufficiently resemble event and be fair)
Commonwealth v. Rosario, 444 Mass. 550 (probative vs. prejudicial balancing)
Commonwealth v. Walden, 380 Mass. 724 (heat-of-passion manslaughter requires provocation likely to produce ordinary person’s passion)
Commonwealth v. Watkins, 373 Mass. 849 (deliberate premeditation may be found where defendant left scene, retrieved weapon, and returned)
Commonwealth v. Qualls, 440 Mass. 576 (use of corroborative evidence to assess witness credibility)
Commonwealth v. Borodine, 371 Mass. 1 (state-of-mind evidence admissible only if defendant likely knew of that state of mind)
Commonwealth v. Olszewski, 401 Mass. 749 (defendant must make credible showing he knew victim’s state of mind)
Commonwealth v. Lodge, 431 Mass. 461 (prerequisite of defendant’s awareness for admission of victim’s statements)
Commonwealth v. Woodbine, 461 Mass. 720 (requirements for refreshing a witness’s recollection)