This is an appeal from a conviction of murder in the second degree. The defendant raises three issues. He argues that (1) evidence of certain statements made by the victim about him to a third party should not have been admitted in evidence, (2) evidence of a witness’s religious beliefs was admitted in error, and (3) the judge should have instructed the jury on manslaughter.
We summarize those portions of the evidence which are necessary to answer the defendant’s contentions. The defendant and the victim were acquainted and had been involved in a personal relationship for some time. On October 23, 1981, between 9:00 and 9:30 p.m. , the body of the victim *397 was discovered in the downstairs storage area of a building at 82 Walnut Street, Boston. She had been shot twice in the head. Earlier that evening, after receiving a telephone call from the defendant, she left her home in Dorchester and went to a political meeting at 88 Walnut Street. After she left the meeting she was seen near 82 Walnut Street arguing with a man identified by witnesses at the trial as the defendant. The victim was heard to say to the defendant, “Leave [me] alone” and “get away from [me].” They were then observed going into the basement of 82 Walnut Street. Gunshots were heard, and the defendant was observed leaving the building. At trial, the defendant’s sole defense was that the witnesses had mistakenly identified him as being at the scene of the homicide.
With the above summary as background, we now discuss the issues raised by the defendant.
1. Admission of certain hearsay testimony. Fatimah Payne was called as a witness by the Commonwealth. She identified herself as a close friend and confidante of the victim, who had known her for thirty-four years. She was asked by the Commonwealth about statements made to her concerning an incident between the victim and the defendant that had occurred in late August, 1981. Over the defendant’s objection she testified that she had been called by the victim’s children and asked to come to the victim’s house. Upon her arrival she was told of an incident that had just occurred. 1 She testified that she was told that the victim’s ex-husband had arrived at the victim’s home earlier in the day with money for one of the children’s school clothes. The defendant arrived shortly thereafter and briefly spoke to the victim, who then said to her ex-husband, “Leave, he’s got a knife.” After the ex-husband and the children left the room the defendant locked the door. He then argued with the victim, slapped and punched her in the face, and threatened her with a knife. She started screaming to the children that he had a knife and was trying to hurt her. Eventually, the *398 defendant was chased out of the house by the victim’s children. The witness testified that while she was at the house she saw that the victim had a large black eye.
The witness further testified that she saw and talked to the victim every day, from the date of the incident until the Thursday prior to her death. Over the defendant’s objection, the witness testified that the victim had told her that she was very nervous and afraid of the defendant and that he had even come to her place of employment. The victim had also told the witness that the defendant had encountered the victim at a bus stop and threatened to “off” her. Also, the witness testified that the victim had told her that the defendant had made threats to her concerning the victim’s children and the witness. At no time did the witness testify to any statement made by the defendant to her (the witness), and there was no testimony from any other witness about the incident in late August, 1981, or about any threat allegedly made by the defendant to the victim.
The judge recognized that ordinarily the testimony of the witness would have been barred by the hearsay rule. He allowed the testimony in evidence, however, as an exception to the hearsay rule for the limited purpose of showing the victim’s state of mind toward the defendant at the time the statements were made, and he so instructed the jury.
The state of mind exception to the hearsay rule allows the admission of extrajudicial statements to show the state of mind of the declarant if it is relevant to a material issue in the case.
Commonwealth
v.
Borodine,
In
Commonwealth
v.
Borodine, supra,
the court held that it was not error to allow in evidence statements made by the victim to others indicating that she had abandoned plans to marry the defendant and intended to end their relationship where the jury would have been warranted in inferring that the victim had told the defendant of her state of mind. The evidence was properly admitted because the victim’s attitude toward the defendant was relevant to the question whether the defendant had a motive to kill her. Similarly, this court in
Commonwealth
v.
Van Liew, supra,
permitted the same type of evidence to be admitted for the same reason.
2
In the present case the evidence offered to show the victim’s state of mind is markedly dissimilar from the evidence in
Commonwealth
v.
Borodine, supra,
and
Commonwealth
v.
Van Liew, supra.
Here, the hearsay evidence consists of threats by the defendant toward the victim and testimony that the victim feared the defendant. None of this evidence was material to any issue in the case. “[E]vidence of threats preceding a crime can properly come only from one who heard or witnessed them.”
Commonwealth
v.
DelValle,
2. Other issues. We shall briefly discuss the other issues which may surface at retrial.
a.
Questions as to a witness’s religious beliefs.
At the outset of Fatimah Payne’s testimony, the prosecutor noted that she was wearing what appeared to be a turban. She acknowledged that it was indeed a turban. The prosecutor then asked if she was a follower of a particular religious belief, and she answered in the affirmative. She was then asked what particular religion she belonged to and, over the defendant’s objection, stated that she was a “Sunni Muslim.” The defendant contends that it was error for the court to allow the answer because it was irrelevant and prejudicial. We disagree with the defendant. The prosecutor’s questions can hardly be characterized as an attempt to “sweep jurors beyond a fair and calm consideration of the evidence.”
Commonwealth
v.
Mahdi,
b.
Judge’s failure to charge on manslaughter.
The defendant contends that the judge erred in refusing to instruct the jury on manslaughter. There was no error. It has been repeatedly held that “if any view of the evidence in a case would permit a finding of manslaughter rather than murder, a manslaughter charge should be given.”
Commonwealth
v.
Walden,
Judgment reversed.
Verdict set aside.
Notes
It is impossible to tell from the record the identity of the person or persons who related to the witness the story of the incident.
In Van Liew, statements made by the victim to his wife were ruled admissible. The content of the testimony was that the victim told her that he had seen the defendant with a woman and that he told the defendant that if he did not pay him money owed to him, the victim would inform the defendant’s live-in companion of the other woman. The court ruled that from the evidence the jury could infer that the defendant suspected that the victim did inform the defendant’s companion of the other woman.