The defendant, Timothy Duguay, appeals from his conviction of murder in the first degree on the theory of extreme atrocity or cruelty. The defendant challenges (1) the denial of
We recite the evidence in the light most favorable to the Commonwealth. Commonwealth v. Salemme,
The defendant-and the victim were neighbors and lived just a few houses away from each other. When the defendant was seventeen years old and the victim was twelve years old, they became involved in a homosexual relationship. Their relationship continued over the next five years, until the victim’s death. The victim alternated between maintaining intimacy with the defendant and distancing himself from the defendant.
Throughout this period, the defendant and the victim had several disagreements. Four days before the victim’s death, the defendant received a judgment against the victim. That judgment required the victim to pay back money that he had borrowed from the defendant. The defendant had previously told a friend that he would rather the victim spend the night with him (the defendant) than pay back the money. That evening, according to the defendant, a Thursday, the defendant and the victim spent the night together and were intimate.
After that evening, the defendant and the victim planned to spend thе following Sunday night together, one night before the victim’s murder. The defendant and the victim did not spend Sunday night together; instead, the victim went out with a girl friend and then spent the night at his own house.
The defendant had a telephone conversation approximately one to two hours before the victim was killed during which he told a friend that he was tired of being “hurt” by the victim. He also said he was going to kill the victim. Approximately twenty minutes before thе victim’s death, the defendant telephoned the victim’s home and left a recorded voice message for the victim’s mother. In this message, the defendant told the victim’s mother of his homosexual relationship with the victim. He also said that the victim was “going to answer for the head games he’s played with me,” and that the victim was “not going to threаten me . . . because I’m just going to turn myself in and I’ve already started that.” He also instructed the victim’s mother to “get ready for a fun ride at the courthouse.”
Shortly before eight, the victim stumbled out of his house. A relative of the victim, who lived in a neighboring house, saw the victim and telephoned emergency services. As the first emergency vehicle pullеd onto the victim’s street, the driver noticed a person in dark clothing walking away from the victim’s house. This person displayed no apparent physical response to a loud scream coming from the direction of the victim’s house. Emergency medical personnel were not able to resuscitate the victim. He died on the way to a hospital from blood loss caused by multiple stab wounds to his neck, face, and chest.
After learning from a neighbor that the defendant’s vehicle was seen leaving the front of the victim’s house “earlier in the evening, before this happened,” the police went to the defendant’s house. When the police arrived, the defendant told them that he knew they were coming. The police then recited Miranda warnings.
The defendant consented to testing for the presence of blood on his person and on his clothing. A police chemist performed an ortho-tolidine test. This test is for screening only because it yields a positive result for substances as diverse as vegetation, food items, and detergents, as well as for human blood. The defendant tested positive on his hands, the soles of his feеt, and the soles of his sneakers. The back of his left hand and his socks did not test positive.
Subsequently, the police obtained a search warrant and performed the same testing on the defendant’s house, car, and clothing. No blood was visible to the eye, but the results were positive in the defendant’s bathtub, car, on a light switch, and clothing. The рolice did not find the defendant’s fingerprints at the victim’s house. Furthermore, hairs found at the victim’s house were inconsistent with the victim’s and the defendant’s hair.
1. Denial of the defendant’s motion to suppress. The defendant contends that the statement he made to the police on the way to the police station should be suppressed. The defendant correctly states that the Mirandа warnings given before he entered the police cruiser were deficient. He also correctly notes that statements made by a defendant in police custody in response to interrogation must be suppressed when the Miranda warnings are deficient. The defendant also, however, makes three assertions that are not correct. He asserts that he was in custody when he made the statement; that the officer’s comment
As the motion judge found, the defendant is incorrect with respect to all three of these assertions. First, the defendant was
Second, the officer’s comment did not amount to questioning. The officer did not initiate the conversation. The defendant did. The officer merely answered the defendant’s question. See Commonwealth v. Cote,
Finally, the defendant’s contention that the statement was not voluntary has no merit. The defendant, without prompting, blurted out a statement. Because voluntary statements made by a defendant without аny police coercion are admissible in evidence, Commonwealth v. Diaz,
2. Admission of expert testimony concerning the results of the ortho-tolidine test. The defendant argues that the judge erred when he allowed expert testimony concerning the results of the ortho-tolidine test, a test that screens for the presence of blood. The defendant concedes that under Commonwealth v. Gordon,
In Commonwealth v. Gordon, supra at 842, we held that results of ortho-tolidine tests are admissible in evidence. We did not qualify the admission of the results on the availability of additional confirmatory evidence. We decline to do so now. “ ‘The defendant’s argument goes only to the weight of the evidence, not to its admissibility, and it is for the jury to determine — after listening to cross-examination and the closing arguments
The defendant is concerned that the test will be excessively prejudicial. We do not agree. Here, as in Gordon, the evidencе was presented with an abundance of precaution. The chemist informed the jury that it was a presumptive, or screening, test and that it was capable of producing false positives. She explained that, even when there is a positive result, that does not mean that there is human blood on the surface tested. The expert also explained that the test is extremely sensitive and yields a positive result even for a minuscule amount of blood. Under cross-examination, she acknowledged a long list of substances other than human blood that could yield a positive result. Defense counsel freely and repeatedly pointed out the limitations of the tеst. Admission of the result of the ortho-tolidine test was not error.
3. Exclusion of polygraph test. The defendant contends that the judge abused his discretion by excluding expert testimony by a polygraph examiner. In Commonwealth v. Stewart,
The defendant suggests that the standard stated in Stewart is inappropriate for polygraph evidence because the requirements establish an impossible bar to the admission of polygraphic evidence. We disagree. There is nothing to suggest that an expert polygraph examiner could not design a test to meet the criteria outlined in Stewart.
Finally, the defendant urges that the evidence should be
4. Denial of the defendant’s motion for a required finding of not guilty. In reviewing the denial of the defendant’s motion, we review the evidence in the light most favorable to the Commonwealth. We have met that standard. See supra at 398-400. The defendant argues that other facts support a finding of not guilty. Conflicting evidence is for the jury. The defendant’s motion for a required finding of not guilty was correctly denied.
5. Propriety of the prosecutor’s closing argument. The defendant contends that the prosecutor made a number of prejudicial remarks during her closing argument. Though we have cautioned prosecutors against pressing the bounds of propriety, we conclude that there is no basis for reversing the conviction on this ground.
There is not a bright line rule that we can use to determine whether a prosecutor’s closing argument is fair or improper. Commonwealth v. Kozec, 399 Mass. 514, 516-517 & nn.1-6 (1987). We review a number of relevant factors on a case-by-case basis. Id. at 518. During this rеview, “we must and do recognize that closing argument is identified as argument, the jury understands that, instructions from the judge inform the jury that closing argument is not evidence, and instructions may mitigate any prejudice in the final argument.” Id. at 517.
We also note that defense counsel did not object at the time
The defendant complains that the prosecutor made improper arguments with respect to the ortho-tolidine tests, the viсtim’s wounds, and the defendant’s knowledge of the clothing the victim was wearing at the time of his death. In a closing argument, the prosecutor may “comment on evidence developed at trial and draw inferences from such evidence.” Commonwealth v. Chavis,
Next, defendant contends that the prosecutor committed error by introducing a “conspiracy theоry.” Although a prosecutor’s introduction of a conspiracy theory has been found to be improper, Commonwealth v. Thomas,
Finally, the defendant correctly notes that the prosecutor made an improper statement regarding the punishment for the crime charged. Although it is clearly error for the prosecutor to address the issue of punishment, it was not prejudicial in this case because the judge immediately struck the statement. Further, in the instructions to the jury, the judge reminded the jury not to consider statements that wеre struck from the record. Because we presume that the jury will follow the judge’s instructions, Commonwealth v. Pope,
6. Relief under G. L. c. 278, § 33E. We have reviewed the record and conclude that the interests of justice do not require either a new trial or the entry of a verdict of a lesser degree of guilt. See G. L. c. 278, § 33E.
Judgment affirmed.
Notes
The viсtim lived with his mother, her boy friend, his siblings, and his uncle. His uncle had moved in with the family approximately one week before the victim’s death. His uncle was an admitted cocaine user and dealer. The
The Miranda warnings given at this time were incompletе because the detective failed to inform the defendant that, if he could not afford an attorney, he had the right to court-appointed counsel.
In response to a question from the defendant, the officer advised the defendant to tell the detective what had happened.
A polygraph examination does not, itself, determine whether the subject is telling the truth. Rather, the examination provides data that the polygraph examiner analyzes to form an opinion as to whether the subject is telling the truth.
In one instance, when the prosecutor referred to the sentence for the crime charged, the judge interrupted the prosecutor sua sponte.