The defendant was convicted of murder in the first degree by reason of extreme atrocity or cruelty (G. L. c. 265, § 1) and of violating an abuse prevention order (G. L. c. 209A, § 7).
Facts. We summarize the evidence in the light most favorable to the Commonwealth. The defendant and the victim lived together. In May, 1995, four months before the victim’s murder, she gave birth to their son. In the course of their relationship the defendant physically abused the victim and isolated her from her family. On September 11, 1995, after the victim obtained a protective order against the defendant, two Boston police officers accompanied the victim back to her apartment, where they served the defendant with the protective order. The defendant became extremely angry, collected some of his belongings, and told the victim that he would be back. The officers reminded the defendant that, if he returned, he would be placed under arrest.
After staying a few days with her sister, the victim moved back to her apartment with a male friend. On September 19, 1995, at approximately 5:45 p.m., police officers, responding to a radio call, arrived at the victim’s apartment where they found -the victim half conscious, lying on the kitchen floor, bleeding profusely from several stab wounds. The victim’s son was crying in a swing seat in the living room. As one of the officers was trying to stop the victim’s bleeding, she indicated that her former boy friend was the one who injured her.
The victim was taken to a hospital emergency room where,
The defendant, after being arrested on an unrelated charge and receiving his Miranda rights, admitted stabbing the victim. He said he had gone to the apartment to see his son and to see whether he and the victim had a future together; when he saw men’s clothing in the bedroom closet, “something happened” and he “lost it.”
At trial, the defendant admitted that he killed the victim. He argued that he was only guilty of manslaughter or, at most, murder in the second degree because of an alleged mental impairment. In support of this theory of defense, the defendant’s mother testified that, when the defendant was nine months old, he received an injury which caused him to stop breathing and necessitated his being taken to a hospital where he was resuscitated. The defense also presented a forensic pathologist who testified that the defendant had an I.Q. of sixty-eight, or “the intellectual level of a person with mild mental retardation.” He also testified that the defendant suffered mild to moderate brain damage including frontal lobe damage, which, he opined, was consistent with the incident recounted by the defendant’s mother. The witness further stated that frontal lobe damage impairs a person’s ability to control his impulses, such that once a person started acting on that impulse, he would be unable to stop himself.
1. Alleged prosecutorial misconduct. The defendant argues that the prosecutor created reversible error by inflammatory argument, stating facts not in evidence, and inappropriately commenting on the defendant’s failure to produce evidence. The defendant objected to the prosecutor’s opening statement and to the admission of a photograph, but failed to object to the other errors raised on appeal. We review those objections which were made at trial to determine whether the alleged errors constituted prejudicial error. Commonwealth v. Santiago,
a. Inflammatory statements and evidence. The defendant
(1) The opening. The defendant points to the prosecutor’s remarks during her opening statement regarding the presence of the victim’s child stating, “Baby Matthew in his little swing seat in the living room, right nearby, and [the victim] underneath her kitchen table, whimpering.” He also points to the prosecutor’s characterization of the case as one of “ ‘domestic violence’; of an abusive relationship; of a battered and bruised woman.” The defendant contends that these remarks overstepped the bounds of zealous advocacy and appealed excessively to the jury’s sympathy.
“Generally, a prosecutor in a criminal action may state anything in [her] opening argument that [she] expects to be able to prove by evidence.” Commonwealth v. Cohen,
(2) The closing. Similarly, the defendant’s contention that the prosecutor’s closing argument excessively appealed to the emotions of the jury is also unavailing. Because defense counsel did not object to the prosecutor’s closing argument, our review is limited to “whether there is a substantial likelihood that a miscarriage of justice has occurred.” Commonwealth v. Payne,
The defendant points to the prosecutor’s description of the murder as a “bloody massacre.” As we have noted previously “ ‘[t]o the degree the recitation of the evidence was inflammatory, that was inherent in the odious . . . nature of the crime[s] committed.’ Commonwealth v. Sanchez,
(3) The evidence. The defendant further argues that the prosecutor improperly introduced inflammatory evidence by having the victim’s sister read a statement by the victim from her application for a protective order against the defendant, where she stated: “I asked the defendant to leave. He became very violent and threatening. And he said, if I left, don’t ask him for child support. . . . And, when I come inside the courthouse, I won’t be walking home alive.” The defendant neither objected to the admission of the application for the protective order nor to the witness’s reading from it.
The application for a protective order was inadmissible hearsay. See Commonwealth v. Cormier,
There is also no proper justification for the introduction of a photograph of the child’s crib, empty except for a teddy bear. In speaking of photographs depicting the victim after her death the judge instructed the jury: “Each defendant is entitled to a verdict based solely on the evidence and not one based on pity for the alleged victim which might be occasioned by the photographs.” While this instruction could have been more to the point, we deem it sufficient to dispel any prejudice arising from the photograph in light of the other evidence of the child’s presence at the murder scene and the overwhelming evidence of the defendant’s guilt. See Commonwealth v. Wilson, supra.
b. Allegedly arguing facts not in evidence. In her closing argument the prosecutor suggested that testimony from the defendant’s expert witness was not to be accepted because the psychiatric tests could have been manipulated by the defendant. The thrust of the defendant’s objection to this statement is that the prosecutor argued facts not in evidence and that her remarks constituted impermissible vouching. Our review is limited to whether the defendant’s claim of error created a substantial likelihood of a miscarriage of justice. Commonwealth v. Mello,
“The prosecutor is entitled to argue the evidence and fair inferences to be drawn therefrom.” Commonwealth v. Paradise,
c. The alleged comments on the defendant’s failure to produce evidence. The defendant argues that the prosecutor’s comments regarding the defendant’s failure to produce medical evidence in support of his defense of mental impairment as a result of an injury he allegedly had sustained as a child created reversible error.
Even assuming for the sake of argument that the prosecutor’s remarks constituted an improper comment on a missing witness, “[sjuch impropriety, however, ‘does not. . . ordinarily create a basis for reversal; it merely creates the risk that the attorney will be interrupted by the judge who may then give an unfavorable instruction.’ ” Commonwealth v. Evans,
2. Alleged judicial misconduct. The defendant further contends that the judge’s inattention and moving away, as defense counsel was attempting to argue a motion at sidebar,
“We have recognized that ‘any judicial [conduct] is likely to be accorded substantial weight by the jury.’ ” Commonwealth v. Sylvester,
Any adverse inference that might have been created by the judge’s conduct was cured by his very thorough and explicit instructions.
3. Jury instructions. After the jury had deliberated for approximately two hours, they requested that the judge “define the law for first degree murder and its components therein for deliberate premeditation and the components for extreme atrocity or cruelty.” Consequently, the judge reinstructed the jury as he had done in his main charge, including the definitions of the three prongs of malice. Despite defense counsel’s request, the judge refused to reinstruct the jury on the relevance of mental impairment.
The judge was not required to reinstruct the jury on the defense of mental impairment. Commonwealth v. Barros, supra at 577. The judge adequately instructed the jury in his main charge to consider evidence of the defendant’s alleged mental impairment in determining whether the Commonwealth had proved that the defendant acted with deliberate premeditation or extreme atrocity or cruelty. “The necessity, extent, and character of supplemental instructions in response to a jury request are matters within a trial judge’s discretion.” Commonwealth v. O’Connor,
The defendant also contends that his trial counsel was ineffective in failing to object to the judge’s instruction with respect to the third prong of malice. Contrary to the defendant’s assertion, the judge’s charge neither misstated the subjective component of the third prong of malice, nor reduced the Commonwealth’s burden of proof. The judge properly instructed the jury on the subjective component of the third prong (referring to “circumstances known to the defendant” and “the nature and extent of the defendant’s knowledge of the circumstances at the time he acted”) numerous times in the main and.supplemental charge.
4. Ineffective assistance of counsel. “Appellate review of a conviction of murder in the first degree, regardless of whether a claim of ineffective assistance of counsel has been made, is governed by G. L. c. 278, § 33E. [See Commonwealth v. Painten, ante 536, 549 (1999); Commonwealth v. Hung Tan Vo,
The defendant’s most substantial argument on appeal regarding his claim of ineffective assistance of counsel concerns defense counsel’s failure to object to the admission of certain evidence of the relationship between the defendant and the victim, specific instances of abuse, and the victim’s fear of the defendant. In light of the overwhelming evidence of the defendant’s guilt, including the defendant’s own confession, we conclude that the admission of this evidence did not result in a substantial likelihood of a miscarriage of justice.
5. Relief under G. L. c. 278, § 33E. The defendant requests that we order a new trial or reduce the verdict in light of the “combined weight of the errors.” We have reviewed the entire record pursuant to G. L. c. 278, § 33E, and conclude that a reduction in the verdict or a new trial is not required.
Judgment affirmed.
Notes
Although the Commonwealth proceeded at trial on theories of deliberate premeditation and extreme atrocity or cruelty, the jury convicted the defendant only on the latter theory.
The defendant appeals from his conviction of murder in the first degree by reason of extreme atrocity or cruelty. He does not appeal from his conviction of violating a protective order issued pursuant to G. L. c. 209A.
During her closing argument, the prosecutor made the following remarks:
“I’d like to briefly address the defense in this case, [the defendant’s mother] and Doctor Brown. [The defendant’s mother] came in and talked to you. And I mean no disrespect to [the defendant’s mother]. She is the mother of the defendant, and she is doing her best to protect him. But that doesn’t mean you have to ac.cept what she had to say because, as you recall, her story was that somehow the defendant had some injury that caused him to die; and, an hour later, miraculously, he was alive and released from the hospital and, alas, he was never the same.
“I would suggest that that is a ridiculous story. I would suggest there is no medical evidence. There is no doctor to back that up, even though she told you that he went to a hospital and he sought medical attention. He wasn’t even kept overnight for observation, a nine-month-old infant who died for an hour? I would suggest that [the defendant’s mother] is not an evil person. She’s just a mother who is trying to protect her son.”
The judge instructed the jury as follows:
“In any event, if the Court during these proceedings has in any way intimated to you how I think you should decide this case, you should entirely disregard that. How you decide this case is entirely up to you. It doesn’t matter to me how you decide the case. When this case is over, I go on and try another case. When that is over, I’ll go on and try another case after that. There is no end to the cases that come before the Court, as you can well imagine.
“But, in any event, what I am trying to point out to you is this. If, during the course of this trial in some way, either by my body language or the rulings I may have made in this case or in my interaction between the lawyers in one way or another, whether it was heeded or not heeded, none of these matters have anything to do with how you decide the issues in the case. So, if you have seen anything like that happening in this case, entirely disregard that. That should not be considered or weighed in any way and ... it would be unfortunate if you should determine anything that I have done in this case as bearing on how you decide the issues in this case. It would be unfair to either party in the case. So keep in mind from time to time during the course of the trial if you may have gotten some impression, well, the Judge is doing this or the Judge is doing this, or the Judge doesn’t like this, or the Judge doesn’t like that, that is all irrelevant. It doesn’t have anything to do with how you decide the issues in this case.”
In Commonwealth v. Fitzgerald,
“[PJlease don’t for a moment assume from any comments I may make to counsel, or any colloquy between counsel and me that I have an opinion or that I have taken a position in this case, because if I have and I have soindicated to you, you have a right to resent my intrusion into your prerogative because I can’t put my view on you and that is the system and I have no view
“I might ask a question. You are not to give that question any more emphasis or think because it was asked by the Court it is to be considered important by you. It may well be a matter of curiosity. So don’t place any emphasis, don’t guesswork my thoughts on the case because you would be ducking your duty, which is to decide this case in your mind and then hopefully your twelve minds can come to a conclusion.”
An important distinction between Commonwealth v. Fitzgerald, supra, and this case is that the judge’s conduct occurred at a sidebar conference, which is generally considered outside the presence of the jury. See Commonwealth v. Benoit,
At certain points in both the main charge and the supplemental charge the judge omitted the subjective component in his description of third prong malice. Additionally, at certain points, he erroneously included a reference to “death or injury” in his definition of the objective component of the third prong. The defendant does not challenge either of these errors. We conclude that these errors did not create a substantial likelihood of a miscarriage of justice, when viewed in the context of the entire charge and the evidence presented in this case.
In the first part of this opinion, supra at 750, we have shown that, where a proper objection was raised to the improper admission of a photograph, no prejudice resulted.