A jury сonvicted the defendant, Hector Guerrero Avila, of murder in the first degree on the theories of premeditation and extreme atrocity or cruelty and possession of a firearm without a license. On appeal, the defendant argues that the judge erred (1) in admitting testimonial and documentary evidence that had been introduced by the Commonwealth to rebut a defense based on the allegedly inadequate police investigation (Bowden defense
1. Background. The jury could have found the following. The defendant was close friends with Pedro Cruz, and in the fall of 2003, the two lived two blocks apart in Lawrence. The defendant and Cruz typically spoke to each other on the telephone several times a day and the defendant regularly spent time at Cruz’s apartment. Cruz drove a white Chevrolet Corsica automobile that the defendant had permitted Cruz to have registered in the defendant’s name in order for Cruz to obtain a lower insurance rate.
In October, 2003, Cruz was selling drugs in Lawrence with the assistance of the defendant. The defendant loaned Cruz money to be used for the purchase of cocaine, which Cruz stored in his home, repackaged into smaller quantities, and sold at a profit. At some point, the defendant introduced Cruz to Jose Crespo, the victim, whom Cruz knew only by the name of “Xavier.” The victim apparently stayed with Cruz in his apartment for some days, but also rented a room or apartment from Felipa Marquez. Marquez purchased drugs from Cruz, and the victim worked with Cruz in the sale of drugs. Cruz initially gave the victim drugs to sell, but after the victim failed to turn over to Cruz all the money from the sale of these drugs, Cruz arranged to have the victim telephone him when the victim had a buyer.
Some days after Cruz met the victim, Cruz traveled to New York. While Cruz was in New York, the defendant, who had access to Cruz’s apartment even when Cruz was not there, telephoned him to say that $1,000 of cocaine was missing from Cruz’s closet. According to Cruz, both he and the defendant suspected that the victim had taken the drugs. When Cruz returned from New York and mentioned the theft to the victim, he responded, “Oh well, you know, things happen.”
On November 6, the defendant telephoned Cruz and again asked him for help in looking for the victim; the defendant indicated that he wanted to determine if the victim was the person who had attacked him. Cmz telephoned his employer to say he would not be in for work. Cmz then received a telephone call from the victim, who asked whether Cmz could provide him with some cocaine to sell. Cmz told the victim that if the victim had the money, Cmz could supply the drags, and the two agreed on a meeting place. When Cmz arrived at the meeting place, the victim left the car of his customer, entered Cmz’s car, gave Cmz some money, took the “stuff” back to his customer,
As Cmz and the victim were driving, the defendant telephoned Cmz on Cmz’s cellular telephone, and Cmz described his location to the defendant. Soon afterward, the defendant telephoned Cmz again to tell him that he, the defendant, was direсtly behind Cmz and that Cmz should pull over. Cmz pulled over on Brook
The defendant asked the victim whether he had stolen money from the defendant and whether the victim had been part of the attack on him. The victim replied that he had not been involved. The defendant then pulled a gun out of a bag and shot the victim. At the time of this first shot, the defendant and the victim were approximately five to six feet apart, facing one another. The victim fell to the ground and then struggled to get up. The defendant extended his arm out toward the victim and shot him a second time. Cruz returned to his car and drove down Brook Street, passing a witness, Harry Milliken, who was standing in or near the street but past where the defendant’s and Cruz’s cars were parked, and who very soon thereafter reported the car’s registration plate number to the police.
At some point after Cruz left the scene, the defendant telephoned Cruz, told him that he, the defendant, was now in a different car, and arranged to meet him at a gasoline station in Methuen. When they met, the defendant told Cruz that the police had already been to the defendant’s home, having found his address through the registration plate number reported by Milliken to the police. The defendant encouraged Cruz to go to the police and tell them that the defendant had shot the victim because he was “scared for his life.” The defendant then drove Cruz to his sister’s house and left him there. Cruz stayed at his sister’s house for several hours and then drove with his brother to the Lawrence police station.
While at the police station that night, November 6, Cruz gave the first of three statements he would make to the lead police investigators on the case, Lawrence Detective Michael Laird and State Trooper Matthew Gravini. In this first statement, Cruz acknowledged that he had driven the victim to the scene of the shooting in the white Chevrolet Corsica, claimed that the shooter was an unknown black man who had driven there in a black Honda Prelude, and did not tell the police that the defendant
As a result of a lead developed from the subpoenaed telephone records, the police interviewed Marquez, the victim’s landlady, who described a telephone call she had received the night before the shooting from a Spanish-speaking male, warning her to not “let [the victim] in anymore” because “a very dangerous person is looking for [him] to kill him, because they gave him some material that he didn’t pay for.” Marquez used a feature on her telephone that allowed her to identify the number from which she had just been telephoned; the number was the same as the defendant’s cellular telephone number.
Approximately two weeks later, on November 20, 2003, the police went to Cruz’s workplace and interviewed him again, both at the workplace and at the police station. In this second interview, Cruz provided additional informatiоn but did not identify the defendant as the shooter. Later that night, Cruz telephoned Laird and told him that the defendant was the shooter. The next day, November 21, Cruz went to the police station, met with Laird and Gravini, and made a third statement. In it, he told the police about his close friendship with the defendant and connection to the victim, related to them details about the events that preceded the shooting, described the shooting itself, and reiterated his claim from the night before that the defendant was the shooter.
Following Cruz’s third statement to the police, charges were brought against the defendant and, on December 18, 2003, he was arrested in New York City. Gravini traveled there with a
At the scene of the shooting, the police recovered two spent shell casings, one spent projectile (bullet), and clothing that had been cut оff the victim by emergency medical technicians. The bullet was found embedded in an article of that clothing, a leather jacket. A ballistician, Lieutenant Michael Coleman of the Massachusetts State police, took possession of the bullet and the two shell casings. After conducting tests on these three items and a second bullet recovered from the victim’s body during autopsy, Coleman concluded that both shell casings were discharged by the same weapon, and that both bullets also were fired from the same weapon. The bullet recovered from the leather jacket was severely damaged; it had a “flattened portion to it, consistent with striking a solid object.” The bullet recovered from the victim was in relatively good condition.
The victim’s clothing was examined by criminalist Paul J. Zambella of the Massachusetts State police crime laboratory. On the basis of his observations and testing of the clothing, Zambella concluded that at the rime of the shooting, the victim was wearing a leather jacket over a sweater and a jersey. Zam-bella located two holes in the leather jacket, onе in the back and one in the front and corresponding holes in the sweater and jersey as well. The bullet was embedded in the hole in the front of the jacket. Based on his examination of the hole in the back of the jacket, and of the melting and inward orientation of liner fibers near this hole, Zambella concluded that a weapon had been discharged while in contact with the back of the jacket.
2. Discussion, a. Rebuttal of defendant’s Bowden defense. At trial, the defendant’s primary challenge to the Commonwealth’s case against him was built around a Bowden defense (see note 1, supra). See Bowden, 379 Mass, at 485-4S6.
(i) Background. The thrust of the defendant’s Bowden defense was that the police had obtained the defendant’s name (through the car registration plate number reported by Milliken) on the day of the murder, and had thereafter focused exclusively on the defendant in their investigation. As a result, the defense contended, the police failed to pursue strong leads pointing to other suspects and were too easily led astray by Cruz — an individual the defense characterized as far from truthful, probably involved in the murder himself, and therеfore motivated to turn the investigative spotlight on the defendant. This was the theme of defense counsel’s opening statement, his closing argument, and substantial parts of his cross-examination of the two lead police investigators, Laird and Gravini.
When defense counsel questioned Laird on cross-examination about the failure of the police to investigate fully two other potential suspects, the judge permitted the questions, over the prosecutor’s hearsay objections, on the ground that they were relevant to the defendant’s Bowden defense. The judge twice gave limiting instructions to the jury, explaining that Laird’s testimony about what third parties had told him about these other suspects was not admitted for the truth of the matter, but for the sole purpose of allowing the jury to base their evaluation of the police investigation on an understanding of what the police knew.
On redirect examination, the prosecutor asked Laird when and why the police investigation began to focus on the defendant. Responding to the “when,” Laird testified that it was on November 21, 2003, because on that day, “we had [Cruz] putting the gun in [the defendant’s] hand and [Cruz] sаid that [the defendant] shot [the victim].” When the prosecutor then asked “what were the factors that drew you to focus your investigation on [the defendant],” the defendant objected. The judge
When Gravini testified, the prosecutor asked him a series of specific questions about what Cruz had said to the police investigators in his three statements, in response to which Gravini recounted much of each statement. The judge gave more than one hmiting instruction, similar in content to those he gave during Laird’s testimony.
Gravini had taken notes of Cruz’s three statements to the investigators during the interrogations that took place on November 6, November 20, and November 21, respectively. He testified that his practice was to make written notes of everything a witness said verbatim, but not to make written notes of any of his own questions. Cruz had signed each of the three sets of notes taken by Gravini.
The judge instructed the jury at length that none of the evidence pertaining to Cruz’s statements to the police (i.e., the oral
“Now in this case, you have a number of statements, both testified to orally by Mr. Cruz and that were apparently made in writing and signed by Mr. Cruz concerning the events of November sixth. Those were offеred for a couple of purposes: one, to impeach the credibility of his in-court testimony to the extent that they may have been inconsistent with his in-court testimony and, two, so that you could see how his statement evolved over time, and use the information that the police had from those statements to assess the propriety of the actions which they took as they underwent their investigation. But the one thing you cannot use those statements for, you cannot use them as substantive evidence. . . . It is only Mr. Cruz’s in-court statements as to facts, which may be considered as substantive evidence of whether those facts occurred.”
(ii) Testimony concerning Cruz’s statements. “Defendants have the right to base their defense on the failure of police adequately to investigate a murder in order to raise the issue of reasonable doubt as to the defendant’s guilt in the minds of the jury.” Commonwealth v. Phinney,
The defendant’s first argument is that under the guise of allowing the Commonwealth to respond to his Bowden defense, the judge erroneously allowed the prosecutor to elicit impermissible opinion testimony from both lead investigators about their views of the defendant’s guilt, as well as about the credibility of the Commonwealth’s primary witness, Pedro Cruz — with “overwhelming” prejudicial effect. See Lodge, supra at 467. We disagree.
There is no question that the defendant forcefully and persistently raised his Bowden defense. Contrary to the defendant’s claim, however, the Commonwealth was not limited, in its rebuttal, to seeking explanations from the two police investigators about why they did not pursue the investigative leads that the defendant (through his counsel’s cross-examination) had put into play. As both the judge and this court have recognized,
The defendant focuses on Laird’s testimony that the police concentrated on the defendant after Cruz identified the defendant as the shooter in his third statement. By itself, this answer might perhaps be viewed as an implicit statement of opinion as to the defendant’s guilt or Cruz’s positive credibility, or both, but it was followed directly by questions and answers from Laird that explained more carefully the factors that led the police to focus on the defendant at that point: the information provided by Cruz in his third statement corresponded with the testimony of disinterested witnesses to the shooting and also with the cellular telephone records from that day. This is clearly different from the Lodge case, where the police detectivе responded to a general question with a comprehensive account of the evidence against the defendant. Lodge, 431 Mass, at 467 (detective’s answer provided impermissible “general expression of the officer’s opinion of guilt, followed by a recital of all the evidence against the defendant”). “[T]he prosecutor may proceed by inquiring of the officer the reason for each specific omission or decision.” Id. That is what happened here.
As for Gravini, as mentioned, the prosecutor elicited a great deal of testimony about the contents of Cruz’s three statements to the investigators. The defendant asserts that Gravini’s recitation of almost everything Cruz had told the police in his sequential statements was error because it served to express Gravini’s subjective opinion of (1) the defendant’s guilt and the catalog of reasons supporting that opinion, and (2) Cruz’s credibility. The argument fails to acknowledge the Commonwealth’s right, in the face of the defendant’s attack on the police decision to accept and act on Cruz’s ultimate statement, to trace and explain the investigators’ response to Cruz’s statements. The judge
(iii) Written notes of Cruz’s statements. As previously indicated, near the end of the trial, after quite extensive discussion with counsel (out of the jury’s presence) and over the defendant’s objection, the judge admitted Gravini’s handwritten notes of Cruz’s three statements in evidence as an exhibit. At trial the defendant objected to the admission of the written statements on the grounds that they —■ and particularly the third — put in concrete form the version and chronology of events that were at the heart of the Commonwealth’s case, and would permit the jury to rely on the writings rather than their memory of Cruz’s testimony; he also argued that the statements were not everything Cruz said, but were instead a summary of Cruz’s statements, prepared by Gravini, the Commonwealth’s lead investigator. On appeal, the defendant raises these and additional arguments; in the latter category are his claims that in substance, the written version of the statements served as prior consistent statements that were inadmissible as such.
The judge was correct that the presentation of a Bowden defense can expand the usual evidentiary boundaries quite significantly, permitting, as it does, the admission of evidence concerning information conveyed to the police by a wide variety of sources that would not or might not otherwise be admitted on hearsay or relevance grounds. See, e.g., Commonwealth v. Silva-Santiago, 453 Mass, at 803-804; Commonwealth v. Mathews,
The Commonwealth contends that Cruz’s statements to the lead investigators, and the written notes of those statements, were admissible under the doctrine of verbal completeness; the claim is that the defense “opened the door” by cross-examining Cruz as well as the investigators about portions of Cruz’s statements, and therefore the Commonwealth was entitled to introduce
The defendant objected to the admission of the written notes at trial; the claim of error is therefore preserved. The resulting question is whether the error was prejudicial. See Commonwealth v. Flebotte,
b. Expert testimony relating to victim’s manner of death. The defendant argues that the prosecution proved its charge of murder in the first degree committed with deliberate premeditation and extreme atrocity or cruelty
(i) Medical examiner’s testimony concerning autopsy report. Dr. Abraham Philip, the mediсal examiner who conducted the victim’s autopsy in November, 2003, was no longer employed by the Commonwealth at the time of trial. Dr. Flomenbaum, then the chief medical examiner for the Commonwealth, testified at trial in Dr. Philip’s stead. Dr. Flomenbaum offered his opinions on direct examination that the “cause of death” was “the gunshot wounds through the aorta and kidney” and the “mechanism” of death was “hemorrhage” or “loss of blood.” He also offered an opinion on how long it might have taken the victim to die, and about whether the victim might have been conscious after each shot was fired. These opinions were based
Dr. Flomenbaum also testified on direct examination, based on the autopsy report and diagram, that one bullet entered on the left front side of the victim’s body, damaged the kidney, fractured a rib, and lodged on the right side of the body, just beneath the surface of the back; and that a second bullet entered the victim’s back on the right side, went through a spinal bone, injured the aorta, and exited the body on the right front side of his abdomen, leaving a “shored exit wound.” He explained that a shored exit wound is created when a bullet exits a body that is “shored up against” another surface and that such a wound has specific characteristics recognizable to an expert.
The defendant concedes that Dr. Flomenbaum’s opinions on the victim’s cause of death, the mechanism of death, and “how long it took [the victim] to die” were admissible. See Commonwealth v. Nardi,
In Nardi, we addressed the issue whether our rules of hearsay, as well as the confrontation clause of the Sixth Amendment to the United States Constitution, limit the types of testimony that may be offered by a medical examiner who did not perform the victim’s autopsy but who, in preparation for testifying, reviewed the autopsy report and related materials (substitute medical examiner). We held that the substitute medical examiner could offer an opinion as to the victim’s cause of death even though that opinion was based on the facts and findings in the autopsy report that was not itself admissible, Nardi, 452 Mass, at 390-391, but that the substitute medical examiner could not testify about these facts and findings themselves on direct examination. Id. at 392-393.
The victim’s cause of death in Nardi was hotly disputed, and
Expert opinion testimony of this nature is permissible as an evidentiary matter. “[Medical] examiners, as expert witnesses, may base their opinions on (1) facts personally observed; (2) evidence already in the record or which the parties represent will be admitted during the course of the proceedings, assumed to be true in questions put to the expert witnesses; and (3) ‘facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion.’ ” Nardi, supra at 388, quoting Commonwealth v. Markvart,
Expert opinion testimony of this nature does not offend the confrontation clause as interpreted by the Supreme Court of the United States in Crawford v. Washington,
There was no error. “A judge has wide discretion in qualifying a witness to offer an expert opinion on a particular question . . . and his determination will not be upset on appeal if any reasonable basis appears for it (citations omitted).” Commonwealth v. Rice,
(iii) Ballistician’s testimony concerning deformed bullet. At trial, the prosecutor posed the following hypothetical to Coleman, the ballistician:
*765 “Assume that an individual is shot, the bullet goes in through the back, it now progresses through the body, and now is coming out the front portion of the body. And you have this projectile that you recover, and you recover it from the jacket as you did, [and the jacket was worn by the person in a normal manner,23 ] are you able to form an opinion as to what, if any, surface that projectile hit, either within the body, or outside of the body based on your inspection of that projectile?”
Coleman replied, “For that projectile to stop at that point and sustain that type of damage, some solid contact such as pavement — the jacket would have to be in contact with something such as pavement to stoр at that point and sustain that type of damage.”
The defendant objected at trial to the hypothetical. He argues here that the use of the hypothetical was error because it was based on facts that were not properly introduced into evidence. See Commonwealth v. Federico,
It is true that a proper hypothetical question must be based on admissible evidence that has been or will be introduced. Commonwealth v. Rodriguez,
The factual basis of the hypothetical was thus sufficient. Coleman’s response, that is, his opinion that the damage to the bullet could be explained only by positing that it had hit a hard surface such as pavement, fell within the scope of his training and experience (the defendant does not argue otherwise) and was therefore admissible.
To conclude, our review of the various evidentiary errors that the defendant has raised in relation to evidence of the victim’s death persuades us that there is no basis for reducing the defendant’s verdict from murder in the first degree to murder in the second degree. See, e.g., Commonwealth v. DelValle, 443 Mass, at 797.
c. Evidence concerning telephone call purportedly made by defendant. The defendant claims error in the admission of the testimony of Felipa Marquez concerning the contents of a telephone call that she received the night before the victim was killed.
Thеre was no error. The evidence at trial would permit the jury reasonably to infer that the caller was the defendant,
d. Bowden instruction. The defendant asserts that the judge, having told the jury members that they could consider various pieces of evidence to evaluate the quality of the police investigation and determine whether it was biased against the defendant, was duty bound to give the jury a Bowden instruction. See Bow-den, 379 Mass, at 486. The defendant claims that the judge’s failure to give such an instruction impermissibly took the issue of a potentially faulty police investigation away from the jury. We disagree.
The Bowden case makes clear that a judge may not remove the issue of a biased or faulty police investigation from thе jury, see id., but that is not what happened here. The judge carefully and repeatedly instructed the jury that certain pieces of evidence, including Cruz’s statements, were being admitted for the sole purpose of allowing the jury to evaluate whether the police investigation was biased or faulty. In Commonwealth v. Williams,
(i) Jury instructions. The defendant claims that the judge improperly omitted the element of unlawful killing from his charge to the jury on murder in the first degree. It is true that the judge did not use the term “unlawful” in instructing the jury that they must find (1) the defendant himself killed the victim, and (2) did so with the actual, subjective intent to cause the victim’s death. An unlawful killing is a killing done “without legal excuse or justification, such as accident, self-defense, or defense of another.” Commonwealth v. Medina,
The judge did not err in declining to instruct the jury on reasonable provocation manslaughter because the victim’s conduct toward the defendant did not rise to the level of provocation. For such an instruction to be appropriate, “[tjhere must be evidence that would warrant a reasonable doubt that something happened which would have been likely to produce in an ordinary person such a state of passion, anger, fear, tight, or nervous excitement as would eclipse his capacity for reflection or restraint, and that what happened actually did produce such a state of mind in the defendant.” Commonwealth v. Walden,
The judge also did not err in failing to instruct on self-defense as a complete defense from criminal liability.
Because the judge did not err with respect to these jury instructions on unlawful killing, provocation manslaughter, and self-defense, trial counsel was not ineffective for failing to challenge the jury instructions.
(ii) Daubert-Lanigan challenge to ballistics evidence. Trial counsel was not ineffective in failing to make a Daubert-Lanigan challenge to the ballistics testimony. Daubert v. Merrell Dow Pharms., Inc.,
f. G. L. c. 278, § 33E. We have reviewed the entire record and have found no grounds warranting relief under G. L. c. 278, § 33E.
Judgments affirmed.
Notes
A “Bowden defense” refers to a defense built around the proposition that an inadequate police investigation may raise serious questions about whether the police and the Commonwealth have charged and are prosecuting the proper perpetrator, and thus may give rise to reasonable doubt about the defendant’s guilt. See Commonwealth v. Bowden,
The two people in the car to which the victim brought the drugs were Miguel Perez and Ludim Pagan. Both testified at trial, and both testified consistently with Cruz in relation to the time and specifics of the drug sale and the victim’s role in it.
Craz also provided the police with his and the defendant’s cеllular telephone numbers, which they used to subpoena telephone records. See G. L. c. 271, § 17B.
A number of witnesses — two police officers and Cruz —• testified about Cruz’s taking a lie detector test at the request of the police investigators and about some of the results of that test. This evidence was introduced and admitted without objection, presumably because the defense sought to use the fact that Cruz “failed” the test to the defendant’s advantage.
Cruz testified at trial to essentially the same facts as he stated to the police in his third statement. Cruz’s trial testimony is the evidentiary source of many of the facts summarized in the text, supra.
We set out additional facts hereafter in connection with our discussion of the issues raised.
Although the defense in Bowden itself focused on the alleged failure of the
In a sidebar conference on the issue, the judge stated: “Of course in a normal case a police officer would never be ablе to summarize the factors that in his mind pointed to the guilt of the defendant but here there is a direct challenge to the motives of the police and I do think that the Commonwealth has the right to have them then elicit what motives other than bias, what factors other than bias led them to head in a certain direction. So I think it is permissible. I mean that is — the upside of a Bowden Defense is it’s very powerful and juries are very accepting of it but the downside is I think it does open up the right of the Commonwealth to go into police officers’ thoughts and so forth.”
None of the interviews with Cruz was recorded on audiotape or videotape.
The defendant objected to certain portions of Detective Laird’s and Trooper Gravini’s testimony, but not to all of the testimony that he challenges on appeal. Because we conclude there was no error, we do not need to decide whether the standard of review is prejudicial error, see, e.g., Commonwealth v. Flebotte, All Mass. 348, 353 (1994), or a substantial likelihood of a miscarriage of justice, see, e.g., Commonwealth v. Raymond,
See Commonwealth v. Silva-Santiago, 453 Mass, at 803 n.25.
We reiterate, however, the need to use caution in assessing the scope of a rebuttal to a Bowden defense. Even where a Bowden defense is broad, it does not mean that the case becomes devoid of evidentiary constraint. As appellate decisions have noted, the prospect of rebuttal to a Bowden defense should raise cautionary flags, because there is always the potential that the rebuttal evidence may come close to or cross the line between a permissible account of the police investigators’ rationale for pursuing a certain suspect or investigatory direction, and an impermissible expression of opinion of the defendant’s guilt or implicit comment on a witness’s credibility. See Commonwealth v. Lodge,
The defendant also argues that the written statements included some portions that were highly prejudicial to the defendant, and that the jury were able to consider these portions for the truth of their contents because the judge gave no limiting instruction. However, as indicated in the text, supra, the record is clear that the judge did in fact give a very specific limiting instruction on this precise subject.
The jury first heard the version frоm Cruz directly; the second time was through the testimony of Laird; the third time was through Gravini’s testimony; and the written notes were the fourth.
The Commonwealth, in its closing statement, suggested that the victim had been “executed.”
The autopsy diagram, but not the autopsy report, was admitted in evidence at trial.
For example, Dr. Mark Flomenbaum explained his opinion that the victim was alive at the time of the gunshot from the rear by pointing to “the quantity of blood that bled out when his heart was beating.” The defendant asserts that it was error to permit this testimony.
“If the defendant chooses to inquire about the basis for the testimony upon cross-examination, then the basis comes in; otherwise, the expert may give a conclusion but cannot describe the inadmissible basis for the opinion. In many circumstances, this may be as sensible an approach to balancing the competing concerns as any.” D.H. Kaye, D.E. Bernstein, I.L. Mnookin, The New Wig-more: A Treatise on Evidence — Expert Evidence § 3.10.8, at 64 (Supp. 2009).
The Commonwealth concedes that under Commonwealth v. Nardi,
It is uncontested that the findings in the autopsy report were hearsay. See Nardi, 452 Mass, at 393-394. The statements made by Dr. Philip in the autopsy report were testimonial because “a reasonable person in [Dr. Philip’s] position would anticipate his [findings and conclusions] being used against the accused in investigating and prosеcuting a crime.” Id. at 394, quoting Commonwealth v. Gonsalves,
The only time the defendant objected to the prosecutor’s questioning of Dr. Flomenbaum was when Dr. Flomenbaum was asked for his opinion whether the deformation of the bullet retrieved from the victim’s jacket was consistent with the bullet having struck pavement. See discussion of that point, infra.
Harry Milliken, one of the eyewitnesses, testified that he heard a “crack,” saw a man fall to the ground, saw an individual extend his arm toward the fallen man, and then heard a second crack. Zambella, the criminalist, testified that a weapon was fired while in contact with the back of the jacket.
This assumed fact was interposed by the judge.
As stated at the outset of Part 2 (b), the defendant asserts that the evidentiary errors he raises in connection with Dr. Flomenbaum’s and Coleman’s testimony affect the Commonwealth’s proof of murder in the first degree on the theory of deliberate premeditation as well as extreme atrocity or cruelty. It appears, however, that the thrust of his argument focuses almost exclusively on the Commonwealth’s proof of extreme atrocity or cruelty. In any event, quite apart from the testimony of Dr. Flomenbaum and Coleman, there cleаrly was ample evidence to support a theory of deliberately premeditated murder.
Felipa Marquez testified that the caller was a Spanish-speaking male who told her not to let the victim into her house any more because “a very dangerous person is looking for [him] to kill him, because they gave him some material that he didn’t pay for.”
There was abundant evidence that the telephone number that appeared on Marquez’s telephone as the caller’s was the same as the defendant’s cellular telephone number.
The judge did instruct on excessive use of force in self-defense, one theory of voluntary manslaughter. In particular, he told the jury that evidence that the defendant shot the victim in self-defense would render the defendant
The defendant argues, citing United States v. Sepulveda,