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SJC-11556

             COMMONWEALTH   vs.   MIKOLAJ K. LETKOWSKI.



         Hampden.    April 10, 2014. - September 9, 2014.

 Present:   Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
                            & Lenk, JJ.1


Kidnapping. Rape. Robbery. Assault and Battery by Means of a
     Dangerous Weapon. Intimidation of Witness. Witness,
     Intimidation. Constitutional Law, Admissions and
     confessions, Voluntariness of statement. Evidence,
     Admissions and confessions, Voluntariness of statement.
     Practice, Criminal, Admissions and confessions,
     Voluntariness of confession, Argument by prosecutor.



     Indictments found and returned in the Superior Court
Department on June 8, 2006.

     A pretrial motion to suppress evidence was heard by Peter
A. Velis, J., and the cases were tried before Daniel A. Ford, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.


     Charles W. Rankin (Kerry A. Haberlin with him) for the
defendant.
     Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.

     1
       Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
                                                                     2




    BOTSFORD, J.   After a jury trial, the defendant, Mikolaj

Letkowski, was convicted of aggravated kidnapping, aggravated

rape, armed robbery, assault and battery by means of a dangerous

weapon, and intimidation of a witness.     The defendant appealed,

and the Appeals Court affirmed the convictions.     Commonwealth v.

Letkowski, 83 Mass. App. Ct. 847 (2013).    We granted the

defendant's application for further appellate review, limited to

issues concerning the prosecutor's references to the defendant's

invocation of his rights as set forth in Miranda v. Arizona, 384

U.S. 436, 444-445 (1966), at trial.    We conclude that the

prosecutor's references to the defendant's invocation of his

Miranda rights were improper.   We conclude also, however, that

in the particular circumstances of this case, the improper

references, which were not objected to at trial, did not raise a

substantial risk of a miscarriage of justice.    We affirm the

defendant's convictions.

    1.   Background.   a.   Facts.   The jury could have found the

following.   At approximately 11:30 P.M. on April 17, 2006, the

victim, a student at a college in Springfield, drove from her

off-campus job and entered the parking lot of her campus

dormitory.   When she pulled into the parking lot, she noticed

the defendant walking on the sidewalk near one of the

dormitories.   The victim parked her car.    While she was
                                                                     3


collecting her belongings from it, the defendant approached her

and asked whether she knew where a set of nearby dormitories was

located.   After answering him, the victim returned to gathering

her belongings; when she turned around again, the defendant had

a knife in his hand and ordered the victim back into her car.

He then ordered the victim to give him one hundred dollars, but

she told him that she did not have that much money on her.     The

defendant drove the victim's motor vehicle (with the victim in

the front passenger seat) to an automated teller machine (ATM)

in West Springfield, declining to go to the ATM across from the

college because, as he later told the police, it was too well

lit and was close to a coffee shop which was frequented by the

police.2

     Once they arrived at the ATM, the defendant ordered the

victim to switch places with him; she complied and moved into

the driver's seat.   He placed a black winter hat over his face

as the victim drove through the ATM and aimed his face toward

the passenger's side door to avoid being detected by video

cameras.   The victim removed sixty dollars from her bank

account; the defendant removed the hat from his face only after

they left the ATM.

     2
       The facts we set out here include some explanations of the
defendant's reasons for taking certain actions. The source of
this evidence is either the defendant's statement to the police
that was admitted at trial or the victim's testimony as to what
the defendant said to her.
                                                                   4


     The defendant then directed the victim to an apartment

complex in Agawam where his former girl friend used to live.      He

took the victim to the woods behind the complex and twice forced

her to perform oral sex; he also digitally penetrated her.

During the second instance of oral sex, a car pulled into the

apartment complex, which prompted the defendant to have the

victim stop and to tell her that, if anyone came into the woods,

she should tell them that they were just "making out."   The

defendant then hit the victim with a belt, directed her to get

dressed, brought her to the bottom of a hill, and told her that

he did not believe that she would not go to the police and that

he could just stab her then and throw her in some nearby water.

     They returned to the car, and the victim drove back toward

campus.   The defendant made her enter campus from a particular

direction that had fewer lights and video cameras.   Once the

victim parked her car near her dormitory, the defendant escorted

her to her door.   Before leaving, he insisted that, should the

victim go to the police, he knew her home address and where she

lived on campus so he could find her.3

     The next day, Longmeadow police officers seized both a knit

hat and a knife from the defendant's car during a valid traffic

     3
       Before the defendant and the victim arrived at the
automated teller machine (ATM) in West Springfield, the
defendant asked her for her driver's license. He wrote down her
name and her address on a piece of paper he found in the
victim's vehicle.
                                                                    5


stop of the defendant, but did not arrest him at that point.

The defendant later admitted to police that the knit hat

recovered was the one used during the robbery.4    In addition, a

piece of paper containing the victim's name and information was

recovered from a trash barrel outside the defendant's home

during the execution of a search warrant.     Analysis of

fingerprints lifted from the victim's car revealed that the

fingerprints located on the driver's front door window and

passenger's front door window matched the defendant's prints.

The defendant's deoxyribonucleic acid (DNA) was also a match

with a vaginal swab taken from the victim.5

     b.   The defendant's statement to police.6   On April 19,

2006, the defendant was arrested in his parents' home.      The

defendant's mother provided the arresting officers with the




     4
       The defendant indicated in his interview with police that
a knife the police recovered during the search of his car was
the knife that he had carried with him in a gym bag when he
committed the robbery, although he initially denied using the
knife against the victim.
     5
       Amylase, an enzyme found in human saliva, was detected on
the victim's vaginal swab and served as the basis for the
positive match of the defendant's deoxyribonucleic acid (DNA).
     6
       The facts relied on here are principally taken from the
motion judge's findings of fact on the defendant's motion to
suppress.
                                                                   6


defendant's prescription pain medication,7 and he was thereafter

taken to the Springfield police department.   On arrival, the

defendant was read the Miranda warnings, as well as his right to

a prompt arraignment.   He told the officers that he understood

those rights but stated that he did not wish to speak with them.8

After this invocation, the officers took the defendant to be

booked; in conjunction with the booking process, he was

photographed and fingerprinted, and submitted to a DNA test.

While he was in the booking area, the defendant received some of

his prescription pain medication.

     After his fingerprints had been taken and the DNA swab

obtained, the defendant told the officers that he wanted to give

a statement.   Accordingly, two hours after he had initially

invoked his Miranda rights, the defendant was escorted back to

the police interview room where he again was advised of his

Miranda rights and his right to prompt arraignment.   He

indicated that he understood the rights and that he wanted to

talk with the officers.   The defendant's resulting statement




     7
       On April 18, 2006, the defendant was assaulted and
sustained facial injuries. He was prescribed medication to
alleviate the pain.
     8
       Before he was read the Miranda warnings, the defendant
informed the officers that he was receiving methadone
maintenance treatment but had missed receiving his dose the
morning of the arrest.
                                                                   7


contained portions that implicated him in the robbery of the

victim but denied sexually assaulting and beating her.

    c.   The references to the defendant's invocation of his

Miranda rights.    Before trial, the defendant moved to suppress

his statements to the police, asserting, in part, that his

statements were not voluntary because the officers withheld the

defendant's prescription pain medication and told him they would

provide the defendant with his medication if he reconsidered

talking to them.    After an evidentiary hearing, the motion

judge, who was not the trial judge, did not accept the

defendant's allegation about withheld medication, concluded that

the defendant's statements were voluntary based on the totality

of the circumstances, and ultimately denied the motion to

suppress in its entirety.    The defendant based his defense at

trial on his claim that he lacked criminal responsibility, and

informed the prosecutor and the trial judge at the outset of the

trial that voluntariness of the defendant's statements to the

police remained a live issue.

    In three different portions of the trial, the prosecutor

referred to the defendant's initial invocation of his Miranda

right to remain silent and not to speak with police:     during her

direct examination of Detective Eugene Dean of the Springfield

police department; in her cross-examination of the defendant's

expert witness, Dr. Melvin Lurie; and in her closing argument.
                                                                       8


     (i)     Detective Dean.   On the first day of Dean's testimony,

the prosecutor elicited in her direct examination the following:

     The prosecutor: "[C]an you explain to the ladies and
     gentlemen of the jury how you went over the Miranda
     warnings with him?"

     The witness: "Line by line. Read question number one, and
     he would read before we ask him any questions. . . .
     Number eight is, 'Having these rights in mind, do you wish
     to talk to me now?' Stated he understood it, put his
     initials, but then wrote the word 'no', meaning he did not
     wish to talk with us any further."

     . . .

     The prosecutor: "Showing you this document, can you
     explain to the ladies and gentlemen of the jury what that
     document is."

     The witness: "Yes. That document is your right to a
     prompt arraignment . . . ."

     The prosecutor:     "Did you go over that document with [the
     defendant]?"

     The witness: "Yes, in the same manner as I did in the
     first document. . . . 'Having these rights in mind, do you
     wish to talk to me now?' He again wrote, 'No.'"

The prosecutor thereafter introduced into evidence the "Miranda

Warning" and "Arraignment Warning" forms, both of which

evidenced the defendant's initial invocation of his right to

remain silent in his own handwriting.      This testimony of Dean

and these forms provided the first references to the defendant's

invocation of his Miranda rights at trial.9



     9
       The defendant did not object to either the testimony or
the admission of the forms from the first interview on the
                                                                   9


     On the second day of Dean's testimony, the prosecutor again

referred to the defendant's invocation through her questioning:

     The prosecutor: "I think you told us on Friday, initially,
     the defendant indicated that he did not wish to speak to
     you; is that correct?" (Emphasis added.)

     The witness:     "That's correct."

     The judge:     "Which is --"

     The prosecutor:     "Which is his right?"

     The witness:     "It is, indeed, his right."

     . . .

     The prosecutor: "At that time, you brought him back down
     to the booking area . . . so that he could continue with
     the booking process; is that correct?"

     The witness:     "That's correct."

     The prosecutor: "It was at that point that he was booked
     and fingerprinted?"

     The witness:     "Correct."

     The prosecutor: "And then he came back upstairs and
     decided to change his mind. He did want to talk to you?"
     (Emphasis added.)

     The witness: "He had told us that while we were downstairs
     that he requested to go back upstairs."

     The prosecutor:     "After he was fingerprinted?"

     The witness: "After he was fingerprinted and after he gave
     a DNA sample."10



grounds that his invocation of his Miranda rights was being used
against him.
     10
        The defendant did not raise an objection to the questions
posed or testimony elicited on this second day of testimony.
                                                                  10


    (ii)    Dr. Lurie.   During her cross-examination of the

defendant's expert, the following exchange occurred:

    The prosecutor: "Now, would it be fair to say that you
    know that, initially, the defendant did not want to speak
    to the police. He went through his rights and said, [']no,
    I don't want to.[']"

    The witness:    "Right."

    . . .

    The prosecutor: "[A]re you aware it was after he got
    fingerprinted that he indicated he was willing to speak to
    the police?"

    The witness: "That might be the case; that might not be.
    If you tell me it is, then I don't have reason to doubt
    it."

    . . .

    The prosecutor: "Now, is -- could it be -- hypothetically,
    if a person realizes that they are getting fingerprinted,
    and they realize that they touched something that was used
    in the course of a crime, hypothetically, is it not
    reasonable to assume that a person thinks they might have
    my fingerprints, I'm going to tell them my side of the
    story."11

    (iii)   Closing argument.   In her closing, the prosecutor

rehearsed the various actions taken by the defendant during the

criminal events that, the prosecutor argued, showed that the

defendant was criminally responsible and described them as

"calculated" actions.    The prosecutor then stated:

         "What I suggest [is] he calculated the scenario -- at
    first, he said he didn't want to talk to the police which
    is his right. He has every right to say he did not want to

    11
       The defendant only objected to the final hypothetical
question in this exchange; the objection was overruled.
                                                                   11


    talk to the police and that should not be taken against
    him.

         "But, then he finishes the booking process. What does
    that involve? They are rolling his fingerprints, and he's
    thinking to himself as they are rolling finger by finger by
    finger by finger, damn, damn. I drove that girl's car. I
    touched the steering wheel. Okay. I want to talk to the
    cops. I want to tell my side of the story."

    . . .

         "It wasn't impulsive behavior. It was cold.      It was
    calculated. And he should be punished for it."12

    2.   Discussion.   a.   Prosecutor's use of defendant's

invocation of right to silence.   At trial, the defendant

conceded that he committed the acts of aggravated kidnapping,

aggravated rape, assault and battery with a dangerous weapon,

and intimidation of the victim that were at issue in the case;

his defense, and the question in dispute, was whether he was

criminally responsible for those acts.   Relying principally on

Doyle v. Ohio, 426 U.S. 610, 617-619 (1976), and Commonwealth v.

Madhi, 388 Mass. 679, 694-697 (1983), he argues that the

prosecutor's several references to his initial invocation of his

right to remain silent violated his constitutional due process

rights in that the prosecutor was using the defendant's

invocation to argue, impermissibly, that he was indeed




    12
       The defendant did not raise an objection to the
prosecutor's closing argument at trial.
                                                                 12


criminally responsible.13   We agree with the defendant.   We begin

with the governing constitutional principles.

     "There is no question that, under the fundamental

principles of jurisprudence, evidence of a criminal defendant's

postarrest, post-Miranda silence cannot be used for the

substantive purpose of permitting an inference of guilt . . . ."

Mahdi, 388 Mass. at 694, citing United States v. Hale, 422 U.S.

171, 175, 181 (1975).   This prohibition exists because

     "[s]ilence in the wake of these warnings may be nothing
     more than the arrestee's exercise of these Miranda rights.
     Thus, every post-arrest silence is insolubly ambiguous
     because of what the State is required to advise the person
     being arrested. . . . Moreover, while it is true that the
     Miranda warnings contain no express assurance that silence
     will carry no penalty, such assurance is implicit to any
     person who receives the warnings."


     13
       The defendant advanced this same argument before the
Appeals Court. That court viewed the prosecutor's references to
the defendant's initial invocation during her direct examination
of Detective Eugene Dean as being intended to respond to the
defendant's claim that his statement to the police was not
voluntary. Commonwealth v. Letkowski, 83 Mass. App. Ct. 847,
853-854 (2013). The court concluded, however, that the
references came before the defendant had raised the
voluntariness issue at trial and therefore were improper as a
matter of timing. See id. at 855-856. Nevertheless, because
the defendant later did raise the voluntariness of his statement
as a trial issue, in the Appeals Court's view, the prosecutor's
questioning of the detective about the defendant's initial
invocation ultimately would have been admissible, and the timing
error did not create a substantial risk of a miscarriage of
justice. Id. at 856-857. As for the prosecutor's references to
the defendant's initial invocation during her cross-examination
of the defendant's expert and in her closing argument, the
Appeals Court opined that the references "came dangerously close
to using the defendant's initial silence against him and should
not have been said[,]" id. at 856.
                                                                     13


Commonwealth v. Cobb, 374 Mass. 514, 520-521 (1978), quoting

Doyle, 426 U.S. at 617-618.     See Commonwealth v. Beneche, 458

Mass. 61, 73 (2010), quoting Commonwealth v. Peixoto, 430 Mass.

654, 658-659 (2000).     See also Commonwealth v. Waite, 422 Mass.

792, 797 (1996).     Moreover, "[f]undamental unfairness results

from the use of evidence of such silence regardless whether the

person exercising his or her constitutional right to remain

silent claims insanity as a defense."     Mahdi, supra at 695.14

    There are, however, "rare instances where evidence of a

defendant's postarrest, post-Miranda silence . . . may be

admissible."     Commonwealth v. DePace, 433 Mass. 379, 383 (2001),

overruled on other grounds, Commonwealth v. Carlino, 449 Mass.

71, 80 (2007).    Such instances include explaining why a police

    14
       See Wainwright v. Greenfield, 474 U.S. 284, 292 (1986),
where the United States Supreme Court rejected a State's
argument that Doyle v. Ohio, 426 U.S. 610, 617-619 (1976), did
not preclude the State from contending that a defendant's post-
Miranda invocation of his right to remain silent and not to
speak with the police was evidence that he did not lack criminal
responsibility:

         "The point of the Doyle holding is that it is
    fundamentally unfair to promise an arrested person that his
    silence will not be used against him and thereafter to
    breach that promise by using the silence to impeach his
    trial testimony. It is equally unfair to breach that
    promise by using silence to overcome a defendant's plea of
    insanity. In both situations, the State gives warnings to
    protect constitutional rights and implicitly promises that
    any exercise of those rights will not be penalized. In
    both situations, the State then seeks to make use of the
    defendant's exercise of those rights in obtaining his
    conviction. The implicit promise, the breach, and the
    consequent penalty are identical in both situations."
                                                                  14


interview of the defendant abruptly ended and the jury would be

confused without the explanation, see Commonwealth v. Habarek,

402 Mass. 105, 110 (1988), S.C., 421 Mass. 1005 (1995);

rebutting the defendant's suggestion at trial that some

impropriety on the part of the police prevented him from

completing his statement to them, see id.; and rebutting a claim

by the defendant that he had given the police at the time of his

arrest the same exculpatory explanation as he was presenting to

the jury at trial.   See DePace, supra at 383-384.   None of these

exceptions applies in this case.

    (i)   Direct examination of Detective Dean.   The

Commonwealth contends that the prosecutor was justified in

eliciting that the defendant initially invoked his right to

remain silent during her direct examination of Dean to (1)

"provide a complete picture of the defendant's interaction with

the police," and in particular to explain why the first

interview ended in very short order; and (2) rebut the

defendant's theory that the statements elicited during his

second police interview were not voluntary.   We disagree.

    When a defendant gives a statement to the police, it is

permissible for the Commonwealth to present a fair and

reasonably complete picture of the interaction between police

and the defendant, including the administration of Miranda

warnings and the defendant's responses to questions posed to him
                                                                    15


during that process.   See, e.g., Commonwealth v. Toolan, 460

Mass. 452, 472 (2011); Habarek, 402 Mass. at 110.     In this case,

the defendant gave a statement to the police when they brought

him back to the interview room in response to his request near

the end of the booking process.     The Commonwealth was entitled

to, and did, present a full account of that interrogation

through the prosecutor's direct examination of Dean.    The

defendant's earlier invocation of his right to remain silent was

a distinct event, separated by time and circumstances; clearly,

there was no need, in the name of fairness or completeness, to

include a description of that event in presenting evidence about

the defendant's postbooking waiver of Miranda rights and police

interview.

     In addition, the Commonwealth's reliance on Habarek, 402

Mass. at 109-110, is misplaced.15    Unlike that case, where the


     15
       In Commonwealth v. Habarek, 402 Mass. 105 (1988), S.C.,
421 Mass. 1005 (1995), the defendant, after waiving his Miranda
rights, spoke to a police officer, provided some information,
and then stated that he did not want to say any more, at which
point the interview ended. Id. at 109 & n.1. At trial, the
interrogating officer recounted the entire interview on direct
examination, including the defendant's statement about not
wanting to say more. Id. at 109. Then, following a question by
defense counsel during cross-examination about the fact that the
interview had not been taped, id., the officer stated on
redirect that no tape had been made because the defendant
"exercised his right to remain silent so I terminated the
conversation." Id. at 110. We concluded that although "[t]here
should be no comments on the defendant's claim of his rights
under the Fifth Amendment to the United States Constitution[,]"
the officer's direct examination testimony about the defendant's
                                                                    16


defendant waived his Miranda rights and spoke to the police

about the alleged crime in question for at least a short while

(see note 15, supra), in this case, Dean did not conduct any

interview of the defendant the first time he and the defendant

spoke, precisely because upon receiving the Miranda warnings,

the defendant stated he did not want to speak with the police.

See DePace, 433 Mass. at 384 ("The rule in Habarek does not

apply to the present case [. . . .]   Here, there was no evidence

of any interview, much less one that ended abruptly").   See also

Commonwealth v. King, 34 Mass. App. Ct. 466, 469 (1993).16    The



request to end the interview was necessary to not leave the jury
"wondering why the interview ended abruptly," id.; and that the
officer's reference to exercise of rights on redirect was
permissible "in response to the inferences left by defense
counsel on cross-examination." Id.
     16
       The Commonwealth also contends that it needed to present
the defendant's invocation to the jury to explain why a second
set of Miranda warnings were given; not to do so would leave the
jury "without any explanation as to the unnecessary repetition."
We are not persuaded. First of all, there was no need to
mention the initial invocation at all, which would render
"unnecessary repetition" a nonissue. In any event, it is not
unusual for the police to give a suspect multiple sets of
Miranda warnings. See, e.g., Commonwealth v. Beneche, 458 Mass.
61, 68 (2010) (Miranda warnings given twice); Commonwealth v.
Tolan, 453 Mass. 634, 644 (2009) (police read defendant Miranda
warnings multiple times during interview). And, here there was
an intervening event -- the defendant's booking -- that provided
the jury with a sufficient explanation for why the initial
interaction with Dean was cut short and would need to be resumed
later in time. More to the point, we expect prosecutors,
defense counsel, and trial judges to work together in order to
find ways to provide juries with a reasonably complete picture
of an interrogation without trenching on or even implicating the
defendant's exercise of constitutional rights. See Commonwealth
                                                                      17


prosecutor's references to the defendant's desire to remain

silent were not justified under Habarek.

    That the voluntariness of the defendant's statement to

police remained a live issue at trial likewise did not justify

the prosecutor's use of the defendant's exercise of his right to

silence during her direct examination of Dean.   It is true that

"under the Commonwealth's 'humane practice' rule, where the

voluntariness of a statement is a live issue at trial, the jury

may hear evidence that a defendant was informed of and

understood his Miranda rights."   Toolan, 460 Mass. at 471.     But

evidence that Miranda warnings were provided and that the

defendant understood them does not itself require reference to

the fact that the defendant earlier exercised the rights

included in those warnings.   See id. at 472-473.17   This is

particularly the case where, as here, the prosecutor introduced

the evidence of the defendant's exercise of his Miranda rights



v. Waite, 422 Mass. 792, 799 n.5 (1996). See also Commonwealth
v. Toolan, 460 Mass. 452, 472-473 (2011).
    17
       We recognize that a defendant's initial exercise of his
right to silence and then a change of mind and request to speak
to the police could be deemed probative of the voluntariness of
the defendant's statement. But the fact that evidence might be
relevant or probative does not mean that it can always properly
be introduced. As suggested in note 16, supra, when
introduction of such arguably relevant evidence directly
implicates the defendant's protected exercise of his
constitutional rights, an inquiry as to whether alternatives are
available should be undertaken -- before trial, if possible, and
at sidebar during trial, if not.
                                                                   18


at a time when the defendant had yet to raise the issue of

voluntariness before the jury.   The references to the fact that

the defendant initially declined to speak to police during the

prosecutor's direct examination of Dean constituted error.

     (ii)   Cross-examination of the defendant's expert.    In

cross-examining Dr. Lurie, the prosecutor again mentioned the

defendant's initial assertion of his right to remain silent.18

The Commonwealth argues that in doing so, the prosecutor was

clearly addressing the voluntariness of the defendant's

statement, and that she was careful to distinguish the

"voluntariness" line of questioning from her questions that

dealt with the defendant's criminal responsibility.   The

defendant disputes this characterization.   He contends that the


     18
       The pertinent portions of the cross-examination are set
out in the fact section of this opinion. To summarize, the
prosecutor asked Dr. Lurie if he knew the defendant had
initially invoked his right not to speak with the police, and,
following some intervening questions, asked if Lurie knew that,
after the defendant was fingerprinted, he wanted to speak to the
police. The prosecutor then asked this question:

          "Now, is -- could it be -- hypothetically, if a
     person realizes that they are getting fingerprinted, and
     they realize that they touched something that was used in
     the course of a crime, hypothetically, is it not reasonable
     to assume that a person thinks they might have my
     fingerprints, I'm going to tell them my side of the story."

     After defense counsel's objection was overruled, Lurie
answered that he thought the fingerprints issue was irrelevant -
- what mattered was that the defendant was desperate for pain
medication, and, Lurie stated, the defendant agreed to give a
statement in exchange for receiving medicine.
                                                                   19


true focus of the prosecutor's references to the defendant's

assertion of his right to silence and then waiver was on his

capacity to appreciate the wrongful nature of his conduct and to

take steps post hoc to exculpate himself -- that is, the focus

was on the defendant's criminal responsibility.19

     It is true Dr. Lurie testified that, in his opinion, the

defendant's statement to the police was not voluntary.      But just

as it was not necessary for the prosecutor to refer to the

defendant's initial invocation of his rights in order to address

the voluntariness issue with Detective Dean, it was equally

unnecessary in cross-examining Lurie.    The prosecutor could have

asked questions to challenge Lurie's view on voluntariness

without the reference, and certainly could have posed the same

hypothetical question whether a person in the defendant's

position who had been fingerprinted would want to tell his story

to the police without any mention of the defendant's earlier

exercise of his right not to speak.     See Wainwright v.


     19
       In particular, the defendant points out that the
prosecutor immediately preceded her references to the
defendant's initial decision to decline to speak to police with
questions highlighting a series of decisions by the defendant
during the criminal event that evidenced he was not "oblivious"
to the consequences of his criminal behavior. The defendant
argues that the prosecutor left the jury with the same
impression about the defendant's invocation of his right to
silence, i.e., that the defendant's ability first to invoke his
Miranda rights and then waive them when he realized that "they
might have my fingerprints" also proved that he was not
oblivious to such consequences.
                                                                     20


Greenfield, 474 U.S. 284, 295 (1986) (carefully framed questions

can accomplish same task as comment on silence).

    Moreover, assuming for the sake of argument that it would

have been permissible to introduce evidence of the defendant's

initial invocation in order to respond to his claim of

involuntariness, cf. Habarek, 402 Mass. at 110, contrary to the

Commonwealth's claim, the prosecutor's questions were not so

focused.   As the defendant points out (see note 19, supra),

right before the prosecutor referred to the defendant's initial

decision not to speak to police, she listed a series of the

defendant's actions on the night the crimes were committed to

show that he understood the consequences of his actions.       The

Commonwealth argues that the prosecutor paused following these

questions before turning to the voluntariness issue.     The

transcript does reflect a pause, but we question whether that

pause, by itself, was sufficient to signal to the jury that the

prosecutor was no longer addressing the defendant's lack of

criminal responsibility defense.   Moreover, the prosecutor

followed her reference to the defendant's invocation of his

right to silence with more questions about particular aspects of

the criminal episode that arguably showed appreciation and

control (i.e., criminal responsibility).   Cf. Commonwealth v.

Acevedo, 427 Mass. 714, 716-717 (1998) (prejudice created by
                                                                   21


correct jury instruction sandwiched between two incorrect

instructions on same issue).

    In sum, the prosecutor's references to the defendant's

invocation of the right to silence in the cross-examination of

Lurie were improper.

    (iii)    Prosecutor's closing argument.   The portion of the

prosecutor's closing argument challenged by the defendant

followed the same pattern as her cross-examination of Lurie, and

indeed built on it.    As earlier described, the prosecutor in her

closing listed actions by the defendant that reflected his

capacity for appreciation and control in relation to his

conduct, characterizing them for the jury as "calculated"

actions; she then moved to the defendant's initial exercise of

his right to silence and subsequent decision to speak to the

police after being fingerprinted, describing the defendant's

thought pattern in essentially the same words as she had in her

hypothetical question earlier posed to Lurie, and then labeling

the entire invocation-waiver sequence as a "calculated . . .

scenario."

    The Commonwealth asserts that the prosecutor's challenged

remarks were addressing the voluntariness of the defendant's

statement, not his criminal responsibility, and that she was

entitled to do so to reply to the defendant's contrary position.

Again, assuming the propriety of raising the defendant's initial
                                                                    22


invocation of Miranda rights as a response to a defense

challenge to voluntariness, the Commonwealth's argument ignores

the close proximity and significant degree of parallelism

between the portion of the prosecutor's closing argument

countering the defendant's contention that he lacked criminal

responsibility, and the portion purporting to address the

voluntariness of the defendant's statement.     We agree with the

defendant that the prosecutor's closing left the impression that

the defendant's invocation in significant part demonstrated that

he was criminally responsible.20   This is precisely what Madhi

prohibits.   See Mahdi, 388 Mass. at 694-695.

     b.   Effect of errors.   With one partial exception, the

defendant did not object at trial to the prosecutor's references

to his invocation.21   Both the defendant and the Commonwealth

agree, as do we, that the proper standard of review is whether


     20
       Cf. Toolan, 460 Mass. at 472 (conviction reversed on
other grounds; prosecutor's opening statement and police
testimony focused on defendant's actions and statements about
whether to exercise Miranda rights came "dangerously close to an
improper suggestion that the defendant was manipulating his
constitutional rights to his own advantage"; "[o]n remand, the
Commonwealth should exercise care to avoid using the defendant's
exercise of his Miranda rights against him by suggesting that
his invocations of or deliberations on those rights demonstrated
his criminal responsibility").
     21
       The defendant objected to the hypothetical question the
prosecutor asked Dr. Lurie about what a person in the
defendant's circumstances would think about speaking to the
police once fingerprinted, and the trial judge overruled the
objection.
                                                                  23


the errors created a substantial risk of a miscarriage of

justice.   See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

Cf. Commonwealth v. Fowler, 431 Mass. 30, 42 & n.20 (2000)

(unpreserved error concerning admission of evidence of

defendant's invocation of right to remain silent in first degree

murder appeal was properly reviewed under substantial likelihood

of miscarriage of justice standard).

     In Alphas, 430 Mass. at 13, this court stated:

     "An error creates a substantial risk of a miscarriage of
     justice unless we are persuaded that it did not materially
     influence[] the guilty verdict. . . . In making that
     determination, we consider the strength of the
     Commonwealth's case against the defendant (without
     consideration of any evidence erroneously admitted), the
     nature of the error, . . . whether the error is
     sufficiently significant in the context of the trial to
     make plausible an inference that the [jury's] result might
     have been otherwise but for the error, and whether it can
     be inferred from the record that counsel's failure to
     object was not simply a reasonable tactical decision"
     (quotations, citations, and footnotes omitted).

See Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002)

(review of denial of motion for new trial; articulation of

factors for reviewing substantial risk of miscarriage of

justice).22


     22
       The factors set forth in Commonwealth v. Madhi, 388 Mass.
679, 696-697 (1983), are ones that the court originally set out
for determining whether the Commonwealth's impermissible use of
the defendant's invocation of his right to remain silent at
trial was harmless beyond a reasonable doubt -- a standard which
does not apply to unpreserved errors. See Commonwealth v.
LeFave, 430 Mass. 169, 174 n.6 (1999). A number, but not all,
of this court's decisions reviewing convictions of murder in the
                                                                  24


    We first review the considerations set forth in Alphas.      As

to the strength of the Commonwealth's case, the defendant

admitted to committing the acts constituting the crimes charged,

and even without the evidence of the defendant's invocation of


first degree have applied the Mahdi factors when determining
whether such error, unpreserved at trial, raised a substantial
likelihood of a miscarriage of justice. See, e.g., Commonwealth
v. Adams, 434 Mass. 805, 811-815 (2001) (applying Madhi factors
to introduction of defendant's postarrest silence as evidence of
criminal responsibility to determine whether errors created
substantial likelihood of miscarriage of justice). Cf.
Commonwealth v. Johnston, 467 Mass. 674, 690-691 (2014) (using
Madhi factors to determine whether admission of defendant's
requests to confer with counsel created substantial likelihood
of miscarriage of justice). But see Commonwealth v. Fowler, 431
Mass. 30, 42-43 & n.20 (2000) (unpreserved error concerning
invocation of right to silence; court concluded there was no
substantial likelihood of miscarriage of justice based solely on
strength of Commonwealth's case). Decisions also have varied in
using the Madhi factors to assess whether an unpreserved Doyle
error raises a substantial risk of a miscarriage of justice.
Compare Commonwealth v. Connolly, 454 Mass. 808, 829 (2009)
(stating that court uses five Madhi factors to determine whether
unpreserved Doyle error created substantial risk of miscarriage
of justice), and Commonwealth v. Ewing, 67 Mass. App. Ct. 531,
544-545 (2006), S.C., 449 Mass. 1035 (2007) (looking at Madhi
factors to determine whether prosecutor's impermissible but
unobjected-to questions and comments infringing on defendant's
right to remain silent after arrest created substantial risk of
miscarriage of justice), with Commonwealth v. Brown, 451 Mass.
200, 209 (2008), citing Commonwealth v. Alphas, 430 Mass. 8, 13
(1999) (analyzing whether unpreserved possible Doyle issue
created substantial risk of miscarriage of justice; no mention
of Mahdi factors). The Commonwealth and the defendant have
applied the Mahdi factors in their arguments before this court,
and in assessing whether the defendant was prejudiced by the
errors, we consider in the text first the substantial risk
factors set forth in Alphas, supra at 13, and then the Madhi
factors. The difference between the two sets of factors is not
great. We leave for decision in another case the question which
set properly should apply to determine whether an unpreserved
Doyle error creates a substantial risk of a miscarriage of
justice and requires reversal.
                                                                   25


his Miranda rights, the Commonwealth's case that the defendant

was criminally responsible was very strong.   The testimony of

the victim, as well as the defendant's own statement to the

police, provided detailed, compelling evidence that the

defendant understood and appreciated that what he was doing was

criminal and that he had the capacity to direct and control his

behavior.23   Turning to the nature of the error and the failure

of defense counsel to object, for all the reasons we have

discussed previously, the prosecutor's various references to the

defendant's initial invocation constituted a constitutional

error that at least in part related to the premise of the

defense.   Nevertheless, in the context of the other evidence

presented at trial, the error does not create a plausible


     23
       The defendant through his statement, and the victim
through her testimony, provided the jury with information that
during the criminal episode: (1) the defendant drove the
victim's car as part of the abduction rather than his own; (2)
the defendant drove with the victim to an ATM in West
Springfield rather than the ATM near the college because that
ATM was well-lit and near a coffee shop frequented by police;
(3) once they arrived at the West Springfield ATM, the defendant
switched places with the victim and moved from the driver's seat
to the passenger's seat, pulled a hat over his face, and looked
toward the passenger's window, all to avoid being detected on
the drive-through ATM's video camera; (4) the defendant
thereafter took the victim to an apartment complex that he knew
had a wooded area where he and the victim would be shaded from
view; (5) during the criminal episode, the defendant wrote the
victim's name and information down on a piece of paper, and
threatened to harm the victim should she go to the police; and
(6) he also directed her to use a particular entrance of the
college when they returned to the campus because there were
fewer lights and video cameras.
                                                                    26


inference that if it had not occurred, the jury would have

decided the case differently.     See Commonwealth v. Miranda, 22

Mass. App. Ct. 10, 21 (1986).     In these circumstances, we

conclude that no substantial risk of a miscarriage of justice

occurred in this case.

    Finally, we turn to the factors that the court set out in

Mahdi, 388 Mass. at 696-697, for assessing the degree of harm

caused by constitutional evidentiary errors.    See note 22,

supra.   The Mahdi factors are:    "(1) the relationship between

the evidence and the premise of the defense; (2) who introduced

the issue at trial; (3) the weight or quantum of evidence of

guilt; (4) the frequency of the reference; and (5) the

availability or effect of curative instructions."     Id.

(footnotes omitted).     Many of the factors weigh against the

Commonwealth here.   The prosecutor's references to the

defendant's invocation of Miranda rights, when used to suggest

criminal responsibility, directly connected to the premise of

the defendant's defense (factor 1); the Commonwealth introduced

the evidence at trial (factor 2); the prosecutor referred to the

invocation in three contexts (factor 4); and there were no

targeted curative instructions by the judge (factor 5) --

although the absence of such instructions is consistent with the

evidence being admitted without objection.     See Commonwealth v.
                                                                    27


Adams, 434 Mass. 805, 812 (2001).24    But as discussed, the

victim's testimony and, significantly, the defendant's own

statement described the series of intentional actions he took

during the criminal episode and offered explanations for those

actions (see note 23, supra), and these explanations provided

very powerful evidence of the defendant's ability to appreciate

both the wrongfulness of his actions and his ability to conform

his actions to the requirements of law -- i.e., that he

possessed criminal responsibility while committing the crimes

(factor 3).    See id. at 814 ("lengthy laundry list of rational,

calculating, nondelusional conduct . . . admittedly engaged in

by [the defendant] before, during, and just after the crime"

supported "[the Commonwealth's] expert's testimony that [the

defendant] was fully capable of complex thought and action when

he committed the murders, and was able to appreciate the

wrongfulness of his conduct and form it to the requirements of

the law" [footnote omitted]).    See also Fowler, 431 Mass. at 42-

43.25    In light of the strength of the evidence of the



        24
       Moreover, the fact that the defendant ultimately spoke
with the police serves to mitigate the potential for
impermissible inferences being drawn by the jury from the
defendant's initial refusal to speak with them. See
Commonwealth v. Peixoto, 430 Mass. 654, 658 n.4, 661 (2000).
        25
       In cases of murder in the first degree where the
substantial likelihood of a miscarriage of justice standard
applies, Mahdi indicates that where a clear Doyle error occurs
                                                                   28


defendant's criminal responsibility, even considering the Mahdi

factors, we conclude that there was no substantial risk of a

miscarriage of justice, and reversal of the defendant's

convictions is not warranted.

    3.   Conclusion.   The prosecutor's references to the

defendant's invocation of his right to remain silent constituted

error but they did not create a substantial risk of a

miscarriage of justice.   For the reasons stated by the Appeals

Court, Letkowski, 83 Mass. App. Ct. at 858-859, the case is

remanded to the Superior Court for further proceedings.

                                    So ordered.




"reversal is the norm, not the exception."   Mahdi, 388 Mass. at
698.
