NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-732
COMMONWEALTH
vs.
STEPHANIE A. FERNANDES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2022, after a jury trial, the defendant was convicted of
voluntary manslaughter for killing the victim, Andrew Wagner.1
She was sentenced to serve eight to ten years in State prison.
On appeal, she claims, inter alia, that (1) the judge erred in
failing to instruct the jury on the Commonwealth's burden to
disprove accident; (2) several aspects of the Commonwealth's
expert's testimony were inadmissible; (3) evidence of the
defendant's prior bad acts was admitted for the impermissible
purpose of proving character traits of violence and
1The Supreme Judicial Court previously considered whether the integrity of the grand jury process was impaired and concluded that it was not. Commonwealth v. Fernandes, 483 Mass. 1, 16 (2019). untruthfulness; and (4) the Commonwealth's closing argument
lacked a sufficient factual basis and reiterated inadmissible
evidence. We affirm.
Discussion. 1. Accident instruction. First, the
defendant claims that the judge erred in failing to instruct the
jury on the Commonwealth's burden to disprove accident. We
disagree.
"Voluntary manslaughter and an accidental killing are
mutually exclusive concepts in the criminal law of homicide."
Commonwealth v. Squailia, 429 Mass. 101, 109 (1999). This is
because "voluntary manslaughter is an intentional killing, which
is mitigated by extenuating circumstances," while "[a]n
accidental killing is, by definition, an unintentional killing,
and as such is excused by law." Id. "When the issue of
accident is 'fairly raised,' the judge, at least on request,
must instruct the jury that the Commonwealth must disprove
accident beyond a reasonable doubt." Commonwealth v. Podkowka,
445 Mass. 692, 699 (2006). "Where there is no evidence of
accident, the issue is not fairly raised and the judge need not
give an accident instruction." Id. "When analyzing whether a
judge erred in declining to give an accident instruction, a
reviewing court considers the evidence in the light most
favorable to the defendant." Commonwealth v. Lugo, 482 Mass.
94, 102 (2019).
2 Here, in relevant part, the defendant testified to the
following: after the victim attacked her, she ran into the
kitchen, picked up a knife, and held it in front of her; the
defendant "didn't even move" as the victim ran to her saying,
"[g]ive me the knife, you fucking bitch"; she felt "frozen" when
the victim reached her, at which point the victim put his hand
on her throat, grabbed her hand, and subsequently said, "I think
I got stabbed"; and following the stabbing, the defendant
claimed that she was "in shock" and felt "confused" because the
events occurred "so quick."
The defendant did not testify that the stabbing occurred
accidentally during a struggle over the knife. Contrast
Commonwealth v. Zezima, 387 Mass. 748, 750 (1982) ("According to
the defendant, as [the deceased] attempted to take the gun from
him, it discharged several times, killing [the deceased]");
Commonwealth v. Power-Koch, 69 Mass. App. Ct. 735, 736 (2007)
(during police interview, defendant claimed "by accident I shot
my friend in the chest"). To the contrary, the defendant denied
having testified that the defendant "fell onto the knife," and
stated that she "d[id]n't know what happened" during the
encounter. The record is devoid of evidence of the events that
took place between the time that the victim allegedly grabbed
the defendant's hand and the time of the stabbing. Accordingly,
even viewing the evidence in the light most favorable to the
3 defendant, it did not fairly raise the issue of accident. The
judge did not err in declining to instruct the jury on the
Commonwealth's burden to disprove it.
2. Expert testimony. The defendant raises five arguments
for the first time on appeal regarding the expert testimony
offered by Dr. David Adams, a licensed psychologist called by
the Commonwealth. Where there was no timely objection, "our
review is limited to whether any error created a substantial
risk of a miscarriage of justice." Commonwealth v. Henley, 488
Mass. 95, 127 (2021).
a. Opinion that the defendant was not a victim of domestic
violence. The defendant claims that Dr. Adams improperly opined
on the defendant's credibility. See Commonwealth v. Quinn, 469
Mass. 641, 646 (2014) ("No witness, neither a lay witness nor an
expert, may offer an opinion regarding the credibility of
another witness"). Specifically, the defendant contends that
Dr. Adams's testimony that "[the defendant] was not a victim of
domestic violence" and "did not fit the profile or the
experience of a battered woman" amounted to an opinion that her
claims of abuse were false.
"While an expert may describe the general behavioral characteristics shared by victims of abuse, deference must be preserved for the role of the jury as the final judge of credibility. Expert testimony must be confined to a description of the general or expected characteristics shared by typical victims, and may not relate directly to the symptoms exhibited by an individual victim . . ., nor
4 may it include an opinion or diagnosis that that person suffers from the described condition" (quotation, citation and alteration omitted).
Commonwealth v. Morris, 82 Mass. App. Ct. 427, 433 (2012).
Although Dr. Adams improperly opined that the defendant did
not suffer from intimate partner violence, the defendant's
expert, Dr. Carol Ball, likewise exceeded the scope of
permissible expert testimony -- i.e., the general
characteristics shared by typical victims of intimate partner
violence -- by stating, "[m]y opinion is that [the defendant]
experiences the symptoms of battered women's syndrome, also
known as intimate partner violence." See Morris, 82 Mass. App.
Ct. at 433. In light of Dr. Ball's equally impermissible
opinion, we have no serious doubt whether Dr. Adams's opinion
changed the outcome of the trial. See Commonwealth v. Valentin,
470 Mass. 186, 189 (2014). See also Commonwealth v. Randolph,
438 Mass. 290, 297 (2002) ("Errors of this magnitude are
extraordinary events and relief is seldom granted").
Accordingly, this error did not create a substantial risk of
miscarriage of justice. See Valentin, supra.
b. Opinion that the victim was a victim of domestic
violence. Next, the defendant claims that Dr. Adams's testimony
that "[the victim] was a victim of intimate partner violence,
coercively controlled and fearful," amounted to an opinion of
5 the defendant's guilt.2 For the reasons discussed, supra, Dr.
Adams's opinion exceeded the bounds of permissible expert
testimony, see Morris, 82 Mass. App. Ct. at 433, but did not
create a substantial risk of a miscarriage of justice in light
of Dr. Ball's improper opinion. See Valentin, 470 Mass. at 189.
Moreover, Dr. Adams did not improperly testify that he believed
the defendant was lying. To the contrary, and by way of
example, in reference to whether the defendant had visible
bruises, Dr. Adams testified that he did not "claim to know the
truth," and that it was not his job "to believe or not believe"
the defendant's claims of abuse.
c. References to the defendant's fits of rage. Next, the
defendant claims that Dr. Adams improperly testified to prior
incidents involving the defendant's "rage," which amounted to
inadmissible propensity evidence.3
2 Contrary to the defendant's assertion, Dr. Adams merely opined on the nature of the relationship between the victim and defendant, based on his review of phone records, police reports and interviews, grand jury minutes, and Dr. Ball's evaluation of the defendant. In doing so, Dr. Adams did not imply that the defendant "necessarily was the perpetrator." Rather, he clarified that "domestic violence isn't indicated by just isolated events of violence. . . . [It] is a pattern of coercive control."
3 In relevant part, Dr. Adams testified: (1) that the defendant "sometimes rag[ed] at [the victim] for not coming home right away [after work]"; (2) "there was lots of incidents where [the defendant] was raging at [the victim]"; (3) "there were just frequent . . . rages at both [the victim and another intimate partner, Michael Laramee]"; (4) "I saw lots of evidence
6 "While evidence of the defendant's prior bad acts is not
admissible to show bad character or propensity to commit a
crime, . . . such evidence is admissible if relevant to show the
defendant's motive, intent, or state of mind" (citation
omitted). Commonwealth v. Gonzalez, 469 Mass. 410, 420 (2014).
However, "[t]he judge also must find that the probative value of
the evidence in question outweighs undue prejudice to the
defendant." Id. at 420-421. "Whether evidence of prior bad
acts is relevant, and whether the probative value of such
evidence is outweighed by its potential for unfair prejudice,
are determinations committed to the sound discretion of the
trial judge and will not be disturbed by a reviewing court
absent 'palpable error'" (citation omitted). Commonwealth v.
Rosario, 460 Mass. 181, 192-193 (2011).
Here, the defendant's claims of self-defense and intimate
partner violence placed the nature of her relationship with the
victim, as well as her state of mind at the time of the
stabbing, directly at issue. See Commonwealth v. Pike, 428
Mass. 393, 396 (1998), quoting Commonwealth v. Harrington, 379
in the interviews of witnesses, neighbors about incidents in which [the defendant] had displayed explosive rage"; (5) "I thought there was really quite a compelling history of [the defendant's] explosive rage towards other people"; (6) that there was an incident in which the defendant, who was a passenger in a car driven by the victim, "raged" at another driver; and (7) "there were a lot of incidents where [the defendant was] raging at [the victim]."
7 Mass. 446, 450 (1980) (to establish self-defense with deadly
force, "the defendant [must have] reasonably and actually
believed that [s]he was in 'imminent danger of death or serious
bodily harm, from which [s]he could save [her]self only by using
deadly force'"); Commonwealth v. Goetzendanner, 42 Mass. App.
Ct. 637 (1997), quoting G. L. c. 233, § 23F ("expert testimony
concerning [battered women's syndrome] . . . may [b]e used to
establish 'the reasonableness of the defendant's apprehension
that death or serious bodily injury was imminent'"). Dr. Adams
testified to the defendant's "compelling history of . . .
explosive rage" not for the purpose of establishing the
defendant's propensity for violence, but because he considered
it in forming his opinion about the nature of her relationship
with the victim. This, in turn, was relevant to the defendant's
state of mind at the time of the stabbing. See Goetzendanner,
supra.
Moreover, during his final charge, the judge provided a
clear limiting instruction regarding the permissible uses of
prior bad acts evidence, which mitigated the risk of undue
prejudice to the defendant.4 We presume that the jury followed
4 The defendant contends that the judge's final instructions were inadequate for two reasons: (1) they "endorsed the use of propensity evidence"; and (2) they provided nothing other than a "bland, nonspecific" instruction when a "more pointed, forceful, and timely" directive was required, Commonwealth v. Demars, 42 Mass. App. Ct. 788, 791 (1997). We disagree on both points.
8 this instruction. See Commonwealth v. Bryant, 482 Mass. 731,
737 (2019). Where the prior bad acts evidence was highly
probative for nonpropensity purposes, "and the chance of
prejudice was minimized by a specific limiting instruction, we
cannot say on the record before us that the judge's decision to
admit the testimony was in palpable error." Commonwealth v.
Dunn, 407 Mass. 798, 807 (1990). As there was no error, the
admission of this evidence did not cause justice to miscarry.
d. Hearsay. Next, the defendant claims that Dr. Adams, on
direct examination, testified to inadmissible hearsay that
violated the confrontation clause of the Sixth Amendment to the
United States Constitution and art. 12 of the Massachusetts
Declaration of Rights.5 See Commonwealth v. McNickles, 434 Mass.
First, the judge emphasized that the jury "may not use [prior bad acts] evidence as proof that [the defendant] is a person of bad character with a propensity to commit criminal acts." Second, the instructions were not "bland" or "nonspecific" like those in Demars, supra at 790, where the judge merely instructed, "if you heard arguments about facts that were not in evidence, you are to disregard that." Here, dissimilarly, the instructions explicitly referred to the defendant's "prior bad acts," including "evidence of incidents that occurred during [the defendant's] relationships with Michael Laramee and [the victim]."
5 Specifically, the defendant takes issue with four aspects of Dr. Adams's testimony: (1) that the defendant "smashed the windshield of [another] person's vehicle"; (2) that the defendant "raged in her [neighbor's] face"; (3) that the defendant "smashed a light bulb in the [victim's] eye on a cruise ship"; and (4) that "according to Mr. Laramee, [the
9 839, 857 (2001) ("an expert witness may not, on direct
examination, present the specifics of hearsay information on
which she has relied in reaching her opinion"). We need not
conduct a hearsay analysis for each of the statements described
in note 5, supra, as such statements, even if inadmissible, were
cumulative of other properly admitted evidence of the
defendant's "fits of rage."6 Therefore, any error would not have
created a substantial risk of a miscarriage of justice. See
defendant] said that sometimes she feels like [s]he could stab somebody." We note that the defendant did not object to any of the above testimony. The defendant objected only to Dr. Adams's testimony regarding the defendant's alleged prior conviction of malicious destruction of property, and an e-mail or text message exchange in which the defendant allegedly "rag[ed]" at her landlord.
6 Laramee testified that, after the defendant returned from being away for several days on what he believed to be a heroin binge with her ex-husband, Laramee said to the defendant, "cut the bullshit. You're going to lose your kid," which caused the defendant to become "[e]xtremely angry" and "thr[ow] a remote at [Laramee's] head." Laramee further alleged that, after forbidding the defendant from leaving the house with his truck, "[s]he grabbed a knife" and "stabbed [a] dining room chair." Laramee also testified that, on a separate occasion, he and the defendant had gotten into an argument, during which he "heard a ching of a knife coming out of the butcher block," so he entered the kitchen, "hit [the knife] out of [the defendant's] hand," and "threw her on the ground and had her on the floor by her neck." In response, the defendant allegedly "took [Laramee's] thumb and bent it backwards, dislocat[ing] it." As discussed, infra, we disagree with the defendant's arguments against the admissibility of Laramee's testimony.
10 Commonwealth v. Avila, 454 Mass. 744, 763 (2009) (applying
substantial likelihood standard).
e. Scientific foundation. Next, the defendant claims that
Dr. Adams's opinion lacked a sufficient scientific foundation.
This argument is waived, as the defendant did not raise it
below. Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 694
(2015), S.C., 90 Mass. App. Ct. 227 (2016). See Commonwealth v.
Wilkerson, 486 Mass. 159, 172 (2020) ("Where a defendant does
not request a Daubert-Lanigan hearing to challenge the general
scientific reliability of the methodology prior to trial, the
issue is waived on appeal").
3. Miscellaneous character evidence claims. a. The
defendant's occupation. The defendant claims that the
Commonwealth improperly insinuated the defendant's "dishonest
and exploitative character" based on her prior occupation as a
dancer at a Springfield strip club. Specifically, the defendant
takes issue with two questions that the prosecutor posed on
cross-examination to Danielle Lord, the defendant's former
coworker: (1) "[A]s an exotic dancer, your role or your job to
make money was to dance for men? . . . So you would agree that
a stripper uses manipulation?"; and (2) "[W]hen you were an
11 exotic dancer, you didn't go under your legal name did you?
. . . You went under a stage name?"7
"As a general matter, trial attorneys are allowed to pursue
vigorous cross-examination." Commonwealth v. Fahey, 99 Mass.
App. Ct. 304, 309 (2021).
"[T]he fact that a question may be degrading is not, by itself, a barrier to its utterance. If the examiner reasonably believes that the answer will shed light on the credibility of the witness, or that the answer will aid the jury's exploration of a material fact, then a question's degrading content is simply a factor . . . in determining whether the anticipated answer's probative value is substantially outweighed by any unfair prejudice the question will likely produce."
Commonwealth v. Murphy, 57 Mass. App. Ct. 586, 590 (2003).
On appeal, "[w]e review a judge's evidentiary rulings for
an abuse of discretion." Commonwealth v. Andre, 484 Mass. 403,
414 (2020). "We will conclude that there has been an abuse of
discretion only if the judge has 'made "a clear error of
judgment in weighing" the factors relevant to the decision,
. . . such that the decision falls outside the range of
reasonable alternatives.'" Commonwealth v. Hammond, 477 Mass.
7 The defendant cites to Commonwealth v. Kozec, 399 Mass. 514, 525 (1987), for the proposition that the prosecutor's questions to Lord "had no purpose other than showing that both [the defendant] and the witness . . . were shameless women engaged in 'a form of exhibitionism with demeaning sexual overtones, in a sense evidence of the defendant's bad character.'" As discussed, infra, we need not decide whether the judge abused his discretion in allowing such questions, as any error was insufficiently prejudicial to require vacating the judgment.
12 499, 505 (2017), quoting L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014). In particular, "[t]he determination whether
the prejudicial effect of a statement outweighs its probative
value 'rests in the sound discretion of the judge and will be
upheld absent palpable error.'" Commonwealth v. Julien, 59
Mass. App. Ct. 679, 688 (2003), quoting Pike, 430 Mass. at 325.
With respect to the question about manipulation tactics,
the defendant objected at trial, so we review for prejudicial
error. Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). "This
requires a two-part analysis: (1) was there error; and (2) if
so, was that error prejudicial." Id. "An error is not
prejudicial if it 'did not influence the jury, or had but very
slight effect.'" Id., quoting Commonwealth v. Flebotte, 417
Mass. 348, 353 (1994).
Even if the judge erred in allowing this question, which we
need not decide, such error did not prejudice the defendant.
The defendant's occupation was already in evidence when the
prosecutor asked the question, contrast Commonwealth v. Kozec,
399 Mass. 514, 525 (1987) (no evidence of defendant's employment
as "jello wrestler" before witness gave inadmissible testimony);
the testimony was brief and not repeated in closing; and Lord
denied that the defendant was a manipulator.
With respect to the question about Lord's use of a stage
name, the defendant did not object at trial, so we review for
13 whether any error created a substantial risk of a miscarriage of
justice. See Commonwealth v. McGann, 484 Mass. 312, 322 (2020).
Again, we need not inquire into the question's propriety, as any
error would not have created a substantial risk of a miscarriage
of justice. We are not persuaded that the testimony was
sufficiently significant in the context of the trial to
materially influence the verdict, where the testimony (1)
addressed only Lord's use of a stage name, and did not discuss
the defendant; and (2) was brief and not repeated in closing.
See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
b. Cross-examination by innuendo. Next, the defendant
claims that the Commonwealth improperly cross-examined Lord by
innuendo by asking whether the defendant's tendency to "go
missing for days" might have been caused by substance abuse, as
the question "had no basis in the evidence." See Commonwealth
v. Wynter, 55 Mass. App. Ct. 337, 337 (2002), citing
Commonwealth v. Fordham, 417 Mass. 10, 20 (1994) ("it is error
for a prosecutor to communicate impressions by innuendo through
patterned and leading questions with no demonstrated evidentiary
or good faith basis, which are crafted to evoke negative and
prejudicial answers leaving nothing more or less than the
unsubstantiated innuendo").
There was no error, as we cannot say that the prosecutor's
question had no "mooring in evidence." Wynter, 55 Mass. App.
14 Ct. at 339. The defendant's history of substance abuse was in
evidence.8 Moreover, that defense counsel did not object is
further indication that the questions did not convey improper
innuendo as the defendant now claims. Commonwealth v. Alemany,
488 Mass. 499, 512 (2021).
c. The defendant's character for truthfulness. Next, the
defendant claims that the prosecutor improperly impeached the
defendant's credibility with "evidence of false statements in
unrelated matters" by asking whether she lied (1) to her
boyfriend's mother about her occupation; and (2) in an affidavit
filed in connection with a 2007 restraining order.
"The general rule . . . is that a party may impeach a
witness by attacking the witness's character for truthfulness,
but only through general reputation evidence, or evidence of a
witness's prior criminal convictions in conformity with the
requirements of G. L. c. 233, § 21." Commonwealth v. Almonte,
465 Mass. 224, 241 (2013). That is to say, "specific instances
of misconduct showing the witness to be untruthful are not
admissible for the purpose of attacking . . . the witness's
credibility" (citation omitted). Commonwealth v. Lopes, 478
Mass. 593, 606 (2018).
8 Laramee testified that, between 2004 and 2006, the defendant used "[p]ills, cocaine . . . [and] [e]ventually . . . heroin," and that he stopped talking to the defendant in 2006 "when she went to rehab" in order to address her addiction.
15 We agree that the above questions were improper; neither
was relevant other than to undermine the defendant's character
for truthfulness. Because the defendant did not object to
either question, we review for whether they created a
substantial risk of a miscarriage of justice. Alphas, 430 Mass.
at 13. In doing so,
"[w]e review the evidence and the case as a whole. We consider the strength of the Commonwealth's case, the nature of the error, the significance of the error in the context of the trial, and the possibility that the absence of an objection was the result of a reasonable tactical decision."
Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass.
72 (2005).
First, in assessing the significance of the errors in the
context of the trial -- i.e., the relatively9 increased
likelihood that the jury might discredit the defendant's
testimony -- we note that her testimony provided little detail
regarding the circumstances of the stabbing. The defendant did
not describe the victim's and defendant's movements between the
time that the victim allegedly grabbed the defendant's hand and
neck and the time of the stabbing. Moreover, the defendant
explicitly testified that she "d[id]n't know what happened"
9 The defendant's credibility was otherwise impeached through proper cross-examination. As a representative example, the Commonwealth demonstrated inconsistencies between the alleged incident between the victim and defendant on July 4, 2010, and photographic evidence taken shortly thereafter.
16 during the encounter. Therefore, the defendant's testimony,
even if credited, was minimally probative of the following
avenues through which the Commonwealth could disprove self-
defense: (1) the reasonableness of her belief of the immediacy
of the danger of death or serious bodily harm; and (2) the
defendant's use or attempt to use all proper and reasonable
means under the circumstances to avoid physical combat before
resorting to the use of deadly force. See Commonwealth v. Toon,
55 Mass. App. Ct. 642, 652 (2002).
This, together with the strength of the Commonwealth's
case, leads to our conclusion that the questions did not create
a substantial risk of a miscarriage of justice. In particular,
the Commonwealth's arterial spray evidence strongly suggested
that the defendant stabbed the victim from either the side or
behind, undercutting the defendant's self-defense claim.10
10The Commonwealth's expert medical examiner, Dr. Andrew Elin, testified that the blood from the victim's neck wound would have sprayed "in vaguely a forward direction." The defendant's neighbor testified that when the defendant came to the neighbor's door seeking help, she did not see any blood on the defendant. The defendant's expert forensic scientist, Stuart James, testified that he "did see an arterial squirt pattern [on the defendant's shirt], but [was] not sure when and where that got there . . . it certainly occurred when they were face to face." However, on cross-examination, James testified that he relied only on "the bloodstain evidence at the scene and the bloodstain evidence on the various physical evidence objects"; he did not consider the testimony of the defendant's neighbor, including that the defendant "pounced on" the victim while he was lying in the bathroom, bleeding out, in a pool of his own blood.
17 d. The defendant's past drug use. Next, the defendant
claims that the prosecutor improperly questioned Laramee and
Renee Johnson, the defendant's sister, about the defendant's
past drug use, which had no relevant purpose other than to
undermine the defendant's character. As the defendant did not
object, we review for whether any error created a substantial
risk of a miscarriage of justice. Alphas, 430 Mass. at 13. We
discern no error.
Defense counsel's cross-examination of Laramee opened the
door to the information elicited from Laramee and Johnson.11 See
Commonwealth v. Otsuki, 411 Mass. 218, 236 (1991). "For this
reason, the defendant's claim of prejudice is highly suspect.
Even assuming, however, that the testimony prejudiced the
defendant in some manner, such prejudice did not create a
substantial risk of a miscarriage of justice in this case." Id.
Laramee's and Johnson's testimony was cumulative of other
properly admitted evidence of the defendant's history of drug
use.
e. The November 18, 2003, theft report. Next, the
defendant claims that the prosecutor improperly asked the
Laramee testified on cross-examination that the defendant 11
had left him in 2006 to go to a rehabilitation facility. Johnson took the defendant to the facility on that occasion. Additionally, Laramee testified that the defendant was addicted to pain medication, and that the use of cocaine was part of the relationship between him and the defendant.
18 defendant whether she recalled that, on November 18, 2003,
Brandon Fernandes, the defendant's ex-husband, "call[ed] the
police on [her] for going into his apartment and taking items
from him." Specifically, the defendant contends that "th[is]
bald allegation was hearsay," and, citing to Commonwealth v.
Dew, 443 Mass. 620, 628 (2005), "such allegations not resulting
in conviction . . . are inadmissible." At trial, the defendant
objected to this line of questioning on relevancy grounds. "As
the grounds . . . raised on appeal differ from the objection
made at trial, the standard of review that applies to this claim
is whether there was a substantial [risk] of a miscarriage of
justice." Commonwealth v. Almeida, 479 Mass. 562, 568 (2018).
We need not decide the question's propriety, as any error
did not create a substantial risk of a miscarriage of justice,
where such evidence was cumulative of Lord's testimony that the
defendant "stole my belongings from her ex -- from her apartment
that her and her ex-husband shared." See Commonwealth v. Ortiz,
487 Mass. 602, 611 (2021).
f. The defendant's loyalty. Next, the defendant claims
that the prosecutor improperly asked the defendant about her
loyalty to the victim and Laramee for the purpose of
"denigrat[ing]" the defendant's character as "promiscuous."12
12The prosecutor asked the defendant, "Now, were you loyal to [the victim] when you cheated on him with [Laramee]? . . .
19 The defendant did not object, so we review for whether any error
created a substantial risk of a miscarriage of justice. Alphas,
430 Mass. at 13.
The defendant testified that she had told police on the
night of the stabbing that she was loyal to the victim.
Contrary to the defendant's assertion, the prosecutor's line of
questioning was permissible for the purpose of impeaching the
defendant's credibility. See Commonwealth v. Dabney, 478 Mass.
839, 859, cert. denied, 586 U.S. 846 (2018) ("A witness
generally may be impeached by contradiction with [1] the
witness's own prior, inconsistent statement; [2] internal
inconsistency in the witness's testimony; or [3] other
conflicting evidence"). We discern no error, let alone one
creating a substantial risk of a miscarriage of justice.
g. Prior acts of aggression. Next, the defendant claims
that the Commonwealth improperly questioned the defendant and
Laramee about "prior acts of aggression" by the defendant for
the purpose of establishing the defendant's propensity for
violence.13
And were you loyal to [Laramee] when you were cheating on him with [the victim]?"
13Specifically, the defendant takes issue with the following: (1) the prosecutor's question to the defendant whether, in 2003, Brandon Fernandes "called the police on [her] for slapping him"; (2) Laramee's testimony that the defendant "stabbed [his] dining room chair" with a knife; (3) Laramee's
20 Even if prior bad act evidence is admissible to show the
defendant's motive, intent, or state of mind, "the evidence will
not be admitted if its probative value is outweighed by the risk
of unfair prejudice to the defendant." Commonwealth v. Foreman,
101 Mass. App. Ct. 398, 401 (2022), quoting Bryant, 482 Mass. at
734-735. The evaluation of evidence, both for its relevance and
its prejudicial impact, is committed to the sound discretion of
the trial judge and will not be disturbed absent palpable error.
Rosario, 460 Mass. at 192-193.
As discussed, supra, the defendant claimed to be a victim
of intimate partner violence in support of her theory of self-
defense. We do not discern palpable error in the judge's
determination that the aforementioned testimony was "relevant to
[the defendant's] reaction in domestic relationships, which
[wa]s at the heart of the defense raised," as well as to her
"awareness of intimate partner violence, her ability to extract
herself from it, to call police, to reach out to authorities,
[and] to react to it." Nor do we discern palpable error in the
judge's determination that the probative value of such testimony
was not outweighed by its prejudicial impact, particularly in
light of the judge's clear limiting instruction during his final
testimony that the defendant scratched his neck during an altercation; and (4) Laramee's testimony that, during a separate altercation, the defendant bent his thumb backwards, dislocating it.
21 charge. The judge specified the limited purposes for which the
prior bad acts evidence was admitted, and emphasized that the
jury could not consider that evidence as proof that the
defendant is a person of bad character with a propensity to
commit criminal acts. See Commonwealth v. Donahue, 430 Mass.
710, 718 (2000) ("We presume that a jury understand and follow
limiting instructions, . . . and that the application of such
instructions ordinarily renders any potentially prejudicial
evidence harmless").
h. The nude photographs. Next, the defendant claims that
the judge erred in admitting nude and sexually explicit
photographs of the defendant found on the victim's cell phone,
which she contends "had zero 'informational value' . . . [and]
simply tended to degrade [the defendant] before the jury." The
defendant objected to the introduction of such evidence, so we
review for prejudicial error. See Cruz, 445 Mass. at 591.
In light of the defendant's claims of self-defense and
intimate partner violence, we discern no error in the judge's
exercise of his broad discretion in determining that the
photographs were relevant to the nature of the relationship
between the victim and defendant, as well as to the frequency of
the alleged domestic violence, given the lack of bruising or
injuries displayed in the photographs. See Commonwealth v.
Pina, 430 Mass. 66, 78 (1999), quoting Commonwealth v. Tobin,
22 392 Mass. 604, 613 (1984) ("We accord a trial judge 'substantial
discretion in deciding whether evidence is relevant, and whether
the prejudicial implications of such evidence outweigh its
probative value'"). "To the extent that there was a risk of
unfair prejudice to the defendant, the judge provided a limiting
instruction on this issue both at the time the evidence was
admitted and during the final charge." Commonwealth v. Samia,
492 Mass. 135, 149 (2023). We presume that the jury followed
the judge's limiting instructions. Bryant, 482 Mass. at 737.
i. The 2011 Las Vegas trip. Next, the defendant claims
that the Commonwealth asked the defendant three questions about
her 2011 trip to Las Vegas for the sole purpose of degrading the
defendant's character. The defendant did not object to such
questions, so we review for whether any error created a
substantial risk of a miscarriage of justice. Alphas, 430 Mass.
at 13.
First, the defendant contends that the prosecutor
improperly asked, "when you were in Vegas, you started sending
[the victim] nude photographs of your vagina, isn't that
correct?" We disagree that the question was improper. This
question was within the scope of permissible cross-examination,
as defense counsel raised the subject on direct examination.
See Commonwealth v. Balboni, 89 Mass. App. Ct. 651, 662 (2016).
23 Second, the defendant contends that the prosecutor
improperly insinuated the defendant's dishonesty and bad
character in asking, "Vegas is known as Sin City, isn't that
correct? . . . A lot of drinking, a lot of partying, isn't that
correct?" We need not decide the propriety of these questions,
as any error did not create a substantial risk of a miscarriage
of justice. The resulting testimony was brief and not repeated
in closing, and the defendant's answers merely addressed the
general, public perception of Las Vegas.
Third, the defendant contends that the prosecutor exceeded
the scope of permissible cross-examination in asking the
defendant whether she "like[s] to masturbate," to which the
defendant answered, "I can't have orgasms, to be honest."
The question was improper. "Trials are a search for truth,
not socialized stonings." Commonwealth v. Murphy, 57 Mass. App.
Ct. at 589. Where, as here, "it is 'extremely unlikely' that
the prosecutor reasonably believed a helpful answer would be
forthcoming, . . . or when the question's likely impact is
simply to inflame or degrade, then the question goes 'beyond the
bounds of proper cross-examination,' . . . and should not be
asked." Id. at 590. That being said, the error did not create
a substantial risk of a miscarriage of justice; the resulting
testimony was innocuous, brief, and not repeated in closing.
24 j. The alleged intrafamilial affair. Next, the defendant
claims that the prosecutor improperly cross-examined the
defendant's sister, Renee Johnson, about an alleged affair
between Johnson's mother and ex-boyfriend, which had no relevant
purpose other than to "degrade [the defendant] by association."
The defendant did not object, so we review for whether any error
Alphas, 430 Mass. at 13. We need not decide the propriety of
the question, as any error did not create a substantial risk of
a miscarriage of justice; the resulting testimony was brief, not
repeated in closing, and did not involve the defendant.
4. The Commonwealth's closing argument. a. Factual
basis. The defendant next claims that the Commonwealth, in its
closing argument, made the following statement without a
sufficient factual basis: "This case is about the defendant
. . . taking a knife and stabbing [the victim] not in front of
him, but from behind or the side when he wasn't looking and
killing him." Specifically, the defendant contends that the
evidence does not support the Commonwealth's inference that the
stabbing occurred from either the side of or behind the victim,
as the medical examiner testified that the wound would cause an
arterial spray "in vaguely a forward direction," and the defense
expert testified that he saw arterial spray on the defendant's
shirt. As the defendant did not object to the Commonwealth's
25 argument, we review to determine if there was error, and if so,
whether it created a substantial risk of a miscarriage of
justice. See Commonwealth v. Chambers, 93 Mass. App. Ct. 806,
821 (2018).
"The prosecutor is entitled to argue the evidence and fair
inferences to be drawn therefrom." Commonwealth v. Johnson, 429
Mass. 745, 750 (1999), quoting Commonwealth v. Paradise, 405
Mass. 141, 152 (1989). "The inferences suggested by the
prosecutor need only be reasonable and possible and need not be
necessary or inescapable." Commonwealth v. Dinkins, 415 Mass.
715, 725 (1993).
Here, sufficient blood spray evidence existed in the record
to reasonably infer that the defendant stabbed the victim from
the side or behind. See note 10, supra. The Commonwealth's
argument was therefore supported by the evidence and the fair
inferences to be drawn therefrom.
b. Reliance on expert testimony. Next, the defendant
claims that the Commonwealth, in its closing argument,
erroneously summarized Dr. Adams's opinion that the victim was a
victim of intimate partner violence, based in part on the
defendant's fits of rage.
We discern no error in this aspect of the Commonwealth's
closing. Dr. Adams's testimony was in evidence, albeit in
error, as discussed, supra, and the Commonwealth accurately
26 summarized such testimony. See Johnson, 429 Mass. at 750
(applying substantial likelihood standard).
c. Fits of rage. Finally, the defendant claims that the
Commonwealth, in its closing argument, improperly referred to
the defendant's "fits of rage" to prove that she acted in
conformity with a character trait for violence.
Contrary to the defendant's assertion, the prosecutor
explained to the jury that he was "only suggesting [the fits of
rage] to you as you consider the defendant's state of mind for
what happened on May 7th." See Gonzalez, 469 Mass. at 420
(prior bad acts admissible if relevant to show defendant's
motive, intent, or state of mind). To the extent the jury could
have misinterpreted the purpose of such evidence, the judge
mitigated any undue prejudice with a limiting instruction on the
manner in which the jury could properly consider the defendant's
prior bad acts. See Donahue, 430 Mass. at 718.14
Judgment affirmed.
By the Court (Blake, C.J., Meade & Grant, JJ.15),
Clerk
Entered: April 30, 2025.
14For the reasons discussed, supra, to the extent that errors occurred, we conclude that there was no cumulative error necessitating a new trial.
15 The panelists are listed in order of seniority.