MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial in the Superior Court, the defendant was convicted of murder in the second degree on a theory of joint venture.
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In this direct appeal of his conviction, the defendant raises a number of challenges, including to the judges evidentiary rulings and the prosecutors closing argument. We affirm.
Background. The defendant is one of seven brothers; in 2002, he and one of his younger brothers, Nickoyan, were indicted for the March 26, 2000 murder of another of their brothers, Tasfa.
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Tasfa was shot multiple times through the closed door to his apartment. After the murder, the defendant remained at large, using a false identity until he was arrested in 2004; Nickoyan had been arrested several years earlier. The defendant was tried in 2017.
Discussion. 1. Witnesss prior statements and testimony. The Commonwealth called Ojecko Wallace, another of the defendants, Nickoyans, and the victims brothers, as a trial witness. Over the defendants objections, the prosecutor was permitted to use both a statement Ojecko made to the police on the day of the murder and Ojeckos grand jury testimony to impeach him. The defendant did not request a contemporaneous limiting instruction and the judge did not give one.
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When Ojecko repeatedly testified that he did not recall making the statement or giving the testimony with which he was confronted as impeachment, the judge concluded that the witness was feigning a lack of memory and permitted the Commonwealth to introduce certain parts of Ojeckos grand jury testimony (though not his statements to the police) substantively.
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See Commonwealth v. Trotto, 487 Mass. 708, 724 (2021) (reading of grand jury testimony permitted where judge determines witnesss memory loss is feigned); Commonwealth v. Sineiro, 432 Mass. 735, 741-742 (2000); Commonwealth v. Daye, 393 Mass. 55, 71-75 (1984). The judge prefaced the prosecutors recitation of Ojeckos grand jury testimony with the instruction that “[t]he passages that [the prosecutor] is about to read to you may be used as substantive evidence” (emphasis added). Then, during closing arguments, the prosecutor read portions of that grand jury testimony to the jury.
a. Limiting instruction. As there is no requirement that a judge give a limiting instruction in the absence of a request, the judge did not err in failing to give, sua sponte, a contemporaneous limiting instruction on the jurys use of the Commonwealths impeachment evidence. See Commonwealth v. Sullivan, 436 Mass. 799, 809 (2002); Commonwealth v. Delong, 60 Mass. App. Ct. 122, 131-132 (2003). We are satisfied that any risk that the jury would misunderstand how to use the impeachment evidence was minimized by the judges final instructions to the jury, which included guidance on the jurys use of prior inconsistent statements.
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See Commonwealth v. Peno, 485 Mass. 378, 396 (2020).
Likewise, we discern no error in the judge permitting the jury to hear excerpts from Ojeckos grand jury testimony three times, i.e., for impeachment, as substantive evidence, and in the prosecutors final argument.
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As an initial matter, we are satisfied that in each instance, the repeated testimony was used properly. See Trotto, 487 Mass. at 723 (witnesss prior statements and testimony may be introduced for purposes of impeachment); Sineiro, 432 Mass. at 742 (same); Daye, 393 Mass. at 75 (grand jury testimony admissible as probative “provided the witness can be effectively cross-examined as to the accuracy of the statement, the statement was not coerced and was more than a mere confirmation or denial of an allegation by the interrogator, and other evidence tending to prove the issue is presented”); Commonwealth v. Delacruz, 61 Mass. App. Ct. 445, 449 (2004), S.C., 443 Mass. 692 (2005) (no abuse of discretion in permitting prosecutor to read from trial transcript in closing). Furthermore, the judge instructed the jury on the permissible ways in which they could use that evidence, distinguishing prior inconsistent statements and closing arguments from the trial evidence.
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See Commonwealth v. Silva, 482 Mass. 275, 290 (2019) (“The jury are presumed to follow all instructions they are given”). Under the circumstances, we are satisfied that even if there were error here, it “did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
2. Ineffective assistance of counsel. The defendant argues that trial counsel was ineffective in failing to request a contemporaneous limiting instruction on the use of Ojeckos grand jury testimony, and in failing to seek a curative instruction after an “outburst” by the victims girlfriend during her trial testimony. Applying the familiar test set out in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974) (“whether there has been serious incompetency, inefficiency, or inattention of counsel ․ falling measurably below that which might be expected from an ordinary fallible lawyer [and] ․ whether it has likely deprived the defendant of an otherwise available, substantial ground of defence”), and mindful that these challenges were not developed in a motion for new trial, but raised for the first time on appeal, we are not persuaded. Cf. Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002) (“an ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge”).
a. Failure to request curative instruction. Given our conclusion that there was nothing improper in the use of Ojeckos prior statements and grand jury testimony, we reject the defendants claim that trial counsel was ineffective in failing to request a contemporaneous curative instruction. See Commonwealth v. Garvin, 456 Mass. 778, 783 (2010) (to prevail on ineffective assistance claim, “the defendant must show that there was an error”).
b. Failure to request limiting instruction after witness “outburst.” Where the defendant has not shown that counsels failure to request a curative instruction after an “outburst” by the victims girlfriend on the witness stand was a mistake, rather than a reasonable tactical decision, we also reject the defendants ineffective assistance argument on that basis.
At trial, the victims girlfriend, Ingride Francoeur, testified for the prosecution.
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Pressed on cross-examination about the credibility of her claim to have been afraid of the defendant after the murder, she responded by pointing to the defendant and saying, “He killed my husband.”
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The defendant moved to strike the statement, and the judge did so; counsel did not request a curative instruction. Instead he continued with his cross-examination, and elicited Francoeurs concession that, in fact, she “never saw who pulled the trigger” to fire the fatal shots.
The defendant has not shown counsel to have been ineffective. Once Francoeurs accusatory statement had been stricken, trial counsel could reasonably have determined that requesting and obtaining a limiting instruction would simply highlight the statement in the jurors’ minds, and that the more prudent approach would be to focus on undermining it, as counsel ultimately did. A strategic decision amounts to ineffective assistance “only if it was manifestly unreasonable when made.” Commonwealth v. Martin, 427 Mass. 816, 822 (1998). Counsels approach to the outburst was not manifestly unreasonable, and consequently, the defendants ineffective assistance claim fails.
3. Prosecutors closing argument. The defendant next challenges several aspects of the prosecutors closing argument as reversible errors, including the prosecutor arguing facts not in evidence, misstating the evidence, improperly appealing to juror sympathy, and improperly suggesting his personal opinion on the defendants guilt. The defendant preserved his claims as to the misstated evidence, facts not in evidence, and improper appeal to juror sympathy; as to those issues, we review for prejudicial error.
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See Commonwealth v. Alvarez, 480 Mass. 299, 305-306 (2018); Commonwealth v. Silva–Santiago, 453 Mass. 782, 807–810 (2009). The portions of closing argument to which the defendant did not object but challenges now on appeal -- the prosecutors arguments concerning the defendants consciousness of guilt -- we review only for a “substantial risk of miscarriage of justice.” Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). “We consider statements made during closing argument ‘in the context of the whole argument, the evidence admitted at trial, and the judges instructions to the jury.’ ” Commonwealth v. Moffat, 486 Mass. 193, 201 (2020), quoting Commonwealth v. Felder, 455 Mass. 359, 368 (2009).
a. Facts not in evidence and misstatements of fact. “A prosecutor must limit comment in closing statement to the evidence and fair inferences that can be drawn from the evidence.” Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 234 (2016), quoting Commonwealth v. Cole, 473 Mass. 317, 333 (2015). The defendant highlights several parts of the prosecutors closing argument, alleging that in each instance, the prosecutor misstated the evidence, and that, taken together, these statements amount to an improper appeal to the jurys sympathies. We review each in turn.
We discern no error in the prosecutors argument that “[w]ell never know how long [the victim] suffered” after being shot. As defendants trial counsel recognized, at the time of trial, that argument was relevant to the Commonwealths theory of murder in the first degree on the basis of extreme atrocity and cruelty,
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see Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983) (consciousness and degree of victims suffering relevant to determination whether murder committed with extreme atrocity and cruelty), and the statement was consistent with the medical examiners testimony that the victim was hit by four bullets, one of which was a lethal wound to his aorta, and that the victim would likely have lived for a period of minutes after suffering that wound. See Commonwealth v. Nelson, 468 Mass. 1, 11 (2014) (“It is not improper for a prosecutor to make an argument presented by way of reasonable inferences”).
We agree that the prosecutors reference to Francoeurs having “held” the victim where he fell after being shot was not supported by the evidence. However, in light of the evidence showing that Francoeur and her children were present in the apartment at the time of the shooting, that Francoeur came upon the defendant immediately after he was shot, and her emotional reaction to the crime, whether Francoeur “held” the victim would not, in our view, have influenced the jury. See Flebotte, 417 Mass. at 353.
It was likewise error for the prosecutor to represent Odinga Wallaces testimony as the prosecutor did. In misstating Nickoyans question to the victim immediately before the shooting as “You dont want to deal with us” (emphasis added), rather than, as Odinga actually testified, “You dont want to deal with me” (emphasis added), the prosecutor put words in Nickoyans mouth that bolstered the Commonwealths joint venture argument by suggesting that Nickoyan and the defendant were acting as a team. Reviewing for prejudice, however, we conclude that the error here had “very slight effect” on the jury, Commonwealth v. Lester, 486 Mass. 239, 247 (2020), quoting Alvarez, 480 Mass. at 305, and was therefore not prejudicial, because the prosecutor, recognizing the mistake, immediately corrected it, repeating the argument in a way consistent with the evidence. Additionally, the judges instructions clearly distinguished closing arguments from the trial evidence.
b. Plea to sympathy. There was no error in the prosecutors description of the scene of the shooting at the defendants apartment, nor in his characterization of the damage done to the victims body as a result.
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The prosecutors characterizations were supported by the evidence, and were, at most, “enthusiastic rhetoric, strong advocacy, and excusable hyperbole,” and not grounds for reversal. Commonwealth v. Sanna, 424 Mass. 92, 107 (1997), quoting Commonwealth v. Costa, 414 Mass. 618, 628 (1993). Additionally, the prosecutor was arguing for a murder in the first degree conviction on a theory of extreme atrocity or cruelty. “Dramatic description from the prosecutor is more likely in such cases given the nature of the charge ․” Commonwealth v. Witkowski, 487 Mass. 675, 684 (2021), quoting Commonwealth v. Young, 461 Mass. 198, 205 (2012). “Accordingly, the prosecutor permissibly could argue based ‘both on the defendants actions, in terms of the manner and means of inflicting death, and on the resulting effect on the victim.’ ” Witkowski, supra, quoting Commonwealth v. Barros, 425 Mass. 572, 581 (1997).
While we consider the prosecutors argument analogizing the defendant to an “assassin” to have been imprudent, given our aversion to the use of “insulting names designed to evoke an emotional, rather than a rational, response from jurors,” Commonwealth v. Fahey, 99 Mass. App. Ct. 304, 311 (2021), quoting Commonwealth v. Lewis, 465 Mass. 119, 129-130 (2013), we are not persuaded that it rose to the level of error.
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c. Evidence of consciousness of guilt. At trial, the jury heard evidence -- including the defendants prior testimony -- of the defendants departure from both Massachusetts and from his home in Rhode Island shortly after Tasfas murder, and of his living under a false identity for several years and in three different States before being arrested in New York. In that prior testimony, the defendant denied that he was hiding during this time, saying instead that he was trying “to be on the safe side and survive.” In closing, the prosecutor argued that this evidence showed that “[the defendant] was trying to stay as far away from the police as he could,” and that his use of a false identity from the time of the murder until the time of his arrest “is consciousness of guilt. Thats a guilty man trying to run from the law. That stops here.”
“It is well established that flight constitutes classic evidence of consciousness of guilt.” Commonwealth v. Vick, 454 Mass. 418, 426 (2009). See Commonwealth v. Jackson, 419 Mass. 716, 731 (1995) (use of false identity may be evidence of consciousness of guilt). We discern no error in this argument, and thus, no risk of a miscarriage of justice, substantial or otherwise. See Commonwealth v. Horsman, 47 Mass. App. Ct. 262, 265-266 (1999) (prosecutor may argue consciousness of guilt where argument supported by trial evidence).
d. Cumulative effect of errors. The defendant argues that even if no individual error in the prosecutors closing was prejudicial, the cumulative effect of those errors requires reversal of his conviction. We do not agree. While the defendant preserved his objections to the prosecutors misstatements and to his casting the defendant as “an assassin,” we note that the judges introductory instructions to the jury and her final charge were clear and comprehensive, and that at least one of the errors (the statement that Francoeur “held” the victim) concerned a collateral matter. See Commonwealth v. Niemic, 483 Mass. 571, 595 (2019). We are confident that “the jury would be able to sort out the excessive claims made by the prosecutor,” particularly given the strength of the Commonwealths case. Id., quoting Commonwealth v. Maynard, 436 Mass. 558, 570 (2002).
4. Evidence of Nickoyans character. At trial, the Commonwealth introduced evidence of a variety of items found in Nickoyans house after the murder. Most of the items, including firearms, gun holsters, ammunition, marijuana, and a poem written by Nickoyan and arguably describing the murder of a brother, were admitted without objection and with the defendants approval, on the basis that they supported the defense theory that Nickoyan alone planned and executed Tasfas murder. The defendant objected to the introduction of articles by “the DEA”
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and to evidence of the fact of Nickoyans arrest for the murder.
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The defendants argument that the judge erred in failing to give an instruction limiting the jurys consideration of this evidence to their assessment of Nickoyans role in the murder fails because he did not request such an instruction. See Commonwealth v. Roberts, 433 Mass. 45, 48 (2000). As there was no error, we discern no risk of a miscarriage of justice. See Alphas, 430 Mass. at 13. The judge did not abuse her discretion in permitting the jury to hear the bare fact of Nickoyans arrest in this case; we are not persuaded that the admission of that fact invited speculation by the jury about the disposition of any charges against Nickoyan, and there is nothing in the record to suggest that they did.
We also reject the defendants challenge to the following passage from the prosecutors closing argument:
“All the brothers in this case for some convenient reason want[ ] to blame Nick, that Nick is a murderer. Well, yeah, no one is denying that Nick is a murderer. He murdered Tasfa Wallace with Timi Wallace. So its convenient that Nick is not here and Tasfa cant be here.”
This was a proper response to the defendants argument, which focused on shifting the blame for Tasfas murder to Nickoyan alone -- “[Nickoyan]’s a murderer. Theres no issue about whether or not hes a murderer” -- and away from the defendant. See Kozec, 399 Mass. at 516-517 (prosecutor permitted to respond to defense argument, within established parameters).
5. Sufficiency of the evidence. Reviewing the defendants challenge to the sufficiency of the evidence, we conclude that under the Latimore standard, there was more than enough evidence to support the defendants conviction of murder under a joint venture theory. See Commonwealth v. Bruneau, 472 Mass. 510, 518 (2015) (defining murder in the second degree); Commonwealth v. Zanetti, 454 Mass. 449, 468 (2009) (standard for sufficiency review under theory of joint venture); Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979) (sufficiency standard applicable generally). The jury could have found that the defendant and Nickoyan were involved in a dispute with the victim over money, and, angered by the victims failure to appear to meet with them as planned, they each armed themselves with loaded firearms, went to the victims apartment, and shot him to death through the door of his apartment. The jury could also have found that after the murder, the defendant fled and hid behind a false identity for several years before he was discovered and arrested. See Vick, 454 Mass. at 426; Jackson, 419 Mass. at 731. Whether the defendant shot the fatal bullets or not, the evidence was sufficient to show that he “participated in and shared the requisite intent to commit the crime,” and so to support his conviction as a joint venturer. Commonwealth v. Akara, 465 Mass. 245, 254 (2013). See Commonwealth v. Keown, 478 Mass. 232, 250 (2017), cert. denied, 138 S. Ct. 1038 (2018) (jury inference of malice permitted); Commonwealth v. Norris, 462 Mass. 131, 139 (2012) (defendants intent may be inferred from knowledge and participation in crime).
6. Speedy trial claim. The defendants challenge to the denial of his motion to dismiss for lack of a speedy trial was decided in Commonwealth v. Wallace, 472 Mass. 56 (2015).
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Accordingly, it is barred by principles of direct estoppel. See Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005) (direct estoppel precludes party from relitigating issues “actually litigated and determined” in prior proceeding).
7. Constitutional challenges. Arguing pro se, where counsel filed a Moffett disclaimer, the defendant contends that it was impermissible to try him as a joint venturer with Nickoyan where Nickoyans prosecution had been discontinued. See Commonwealth v. Moffett, 383 Mass. 201, 208-209 (1981). The defendant is incorrect; joint venturers need not be tried together, see, e.g., Commonwealth v. Cifizzari, 397 Mass. 560, 574 (1986), and there is no impropriety in prosecuting one joint venturer and not another. Cf. Commonwealth v. Jones, 403 Mass. 279, 290 (1988) (coventurers acquittal did not “insulate the defendant from being found guilty as a joint venturer”).
Judgment affirmed.
FOOTNOTES
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. The defendant was tried for murder in the first degree on the alternative theories of deliberate premeditation and extreme atrocity or cruelty. The jury convicted the defendant of the lesser included offense of murder in the second degree.
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. Because the brothers all share the defendants surname, we refer to them by their first names to avoid confusion.
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. The judges final jury charge, however, included instruction on the permitted use of prior inconsistent statements.
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. Although the defendant objected, he did so on the grounds that he had never been provided with a certified transcript of the statement. The issue on appeal was not preserved, so we review any error only for a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
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. That the deliberating jury asked to see Ojeckos statement to the police does not persuade us that the jury was “confused” about the use to which they could put the evidence of the prior inconsistent statements. Indeed, the judge took the opportunity to repeat the limiting instruction at that time.
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. In his closing, the prosecutor also used additional parts of Ojeckos grand jury testimony that the judge had not admitted into evidence. The additional portions, however, were largely cumulative of other trial testimony. The defendant did not object, and we conclude that the use of the additional portions of the grand jury testimony did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Mazariego, 474 Mass. 42, 58 (2016).
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. The cases cited by the defendant are factually distinguishable from this case. As examples, this case involves neither first complaint evidence, in which the court must guard against skewing the jurys assessment of the victims credibility, cf. Commonwealth v. King, 445 Mass. 217, 218-219 (2005), cert. denied, 546 U.S. 1216 (2006), nor a judges repetition of selected evidence after the jury had begun its deliberations, cf. Commonwealth v. Mandeville, 386 Mass. 393, 405 (1982), nor the “repetition of the same questions.” Commonwealth v. Shea, 323 Mass. 406, 417 (1948). Likewise, it did not involve the oblique evidence of prior bad acts that our courts have cautioned may be “dangerously confusing to the triers when piled on and unduly exaggerated,” Commonwealth v. Mills, 47 Mass. App. Ct. 500, 505 (1999), and in the way the statements were used, did not amount to the admission of impermissibly cumulative evidence. Cf. Commonwealth v. Lessieur, 472 Mass. 317, 326, cert. denied, 577 U.S. 963 (2015); Commonwealth v. Clarke, 418 Mass. 207, 211-213 (1994). Even assuming, arguendo, there were error in allowing the grand jury testimony to be used as it was and the issue was preserved, the fact that the jury heard the witnesss grand jury testimony more than once did not amount to prejudicial error. See Commonwealth v. McDonagh, 480 Mass. 131, 142 (2018).
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. It was undisputed that Francoeur and two children were in the apartment at the time the victim was shot and killed.
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. Referring to the statement later, the judge characterized it as an “outburst” made in “very dramatic Perry Mason-like style.”
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. Given our determination that there was no error in the judges handling of Francoeurs “outburst” on the witness stand, we do not consider further the defendants argument that his claimed errors as to Francoeurs statements tainted the jury in any way.
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. In Commonwealth v. Castillo, 485 Mass. 852, 864-865, 867 (2020), the Supreme Judicial Court “modified the Cunneen factors prospectively, such that a jury no longer may ‘find extreme atrocity or cruelty based only on the degree of a victims suffering, without considering whether the defendants conduct was extreme in either its brutality or its cruelty.’ ” Commonwealth v. Witkowski, 487 Mass. 675, 684 n.8 (2021).
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. The defendant objected to the prosecutors description of the apartment as “a trail of carnage,” and statement that the defendant and Nickoyan “acted together to decimate[ ] that apartment and tear apart Tasfa Wallace.”
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. Assuming, arguendo, that it did, it was not prejudicial. See Flebotte, 417 Mass. at 353. The characterization was fleeting; the prosecutors use of the term was limited to one sentence of a closing that consumed nearly seventeen pages of transcript. See Commonwealth v. Salazar, 481 Mass. 105, 118 (2018) (prosecutors “brief, isolated statement ․ was not egregious enough to infect the whole of the trial”). Cf. Fahey, 99 Mass. App. Ct. at 311 (prosecutor referred to defendant as “bully” thirteen times in closing). More importantly, although the statements “went to the heart” of the theory of premeditated murder, the jury rejected that theory, “ ‘making these comments collateral,’ and suggesting that the jurys emotions in fact were not enflamed.” Witkowski, 487 Mass. at 685-686, quoting Commonwealth v. Teixeira, 486 Mass. 617, 635 (2021). We note that the judge instructed the jury that closing arguments are not evidence and of their obligation to decide the facts without “prejudice or sympathy.” See Commonwealth v. Niemic, 483 Mass. 571, 595 (2019), quoting Commonwealth v. Maynard, 436 Mass. 558, 570 (2002) (standard for determining whether prosecutors improper statements constitute “prejudicial error”).
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. We understand the reference to be to the Federal Drug Enforcement Administration.
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. The charges against Nickoyan had been dismissed before the defendants trial began, although the jury were not informed of that fact. See Commonwealth v. Wallace, 472 Mass. 56, 73 (2015).
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. Provided that decision exhausted the defendants State remedies as to his speedy trial claim, his inclusion of a speedy trial argument here does not advance his interests in pursuing an application for a writ of habeas corpus in the Federal courts. See 28 U.S.C. § 2254(b)(1)(A) (2018) (application for writ of habeas corpus “on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that ․ the applicant has exhausted the remedies available in the courts of the State”).