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SJC-11339

            COMMONWEALTH    vs.   EDMOND J. CARRIERE, JR.



        Barnstable.        May 9, 2014. - October 28, 2014.

            Present:   Spina, Cordy, Duffly, & Lenk, JJ.


Homicide. Joint Enterprise. Evidence, Joint venturer,
     Testimonial statement, Pattern of conduct, Subsequent
     misconduct, Prior misconduct, Motive, State of mind,
     Declaration against interest. Constitutional Law,
     Confrontation of witnesses. Practice, Criminal, Capital
     case, Confrontation of witnesses, Argument by prosecutor,
     Presumptions and burden of proof.



     Indictment found and returned in the Superior Court
Department on July 13, 2010.

    The case was tried before Robert C. Rufo, J.


     Neil L. Fishman for the defendant.
     Julia K. Holler, Assistant District Attorney, for the
Commonwealth


    DUFFLY, J.   On January 3, 1980, at approximately 8 P.M., the

victim, who was the defendant's wife, was found dead on the

bathroom floor in her home in Bourne.     She had died "quite some

time" earlier of multiple stab wounds.     When the victim's body
                                                                    2

was discovered, the defendant and his fourteen year old daughter,

who lived with the victim, were in Florida visiting one of the

defendant's older daughters.   In June, 2005, Steven Stewart, the

man who stabbed the victim, was convicted of murder in the first

degree; this court reversed his conviction in 2009 based on

errors in the admission of testimony by a key witness.     See

Commonwealth v. Stewart, 454 Mass. 527, 527-528 (2009).     The

defendant was indicted in July, 2010, after Stewart entered into

a plea agreement under which he pleaded guilty to manslaughter,

agreed to testify against the defendant, and was sentenced to

time served.

     The Commonwealth's theory at trial was that the defendant,

who was in the midst of a highly contentious divorce from the

victim, had engaged in a murder-for-hire scheme with Stewart and

their mutual friend Richard Grebauski.1   Grebauski, the alleged

middleman, arranged to hire Stewart for $5,000 after accepting

the defendant's offer of $10,000 to kill his wife.   The

Commonwealth's case relied heavily on evidence introduced through

Stewart, who testified both to his own actions and to out-of-

court statements by other asserted members of the joint venture,

including Grebauski.   The remainder of the evidence was based

largely on out-of-court statements introduced by witnesses to


     1
       Richard Grebauski also was indicted for murder, but died
in 2004, prior to his trial.
                                                                     3

those statements, such as the defendant's friends and neighbors

Russell Breault, Charles Berryman, and David Phinney.     A police

report and a letter sent to the police, containing additional

statements, were introduced in evidence by stipulation.    In May,

2012, a Superior Court jury found the defendant guilty of murder

in the first degree on theories of deliberate premeditation and

extreme atrocity or cruelty.   See G. L. c. 265, § 1.

    On appeal, the defendant challenges the admission of a

number of out-of-court statements introduced through Stewart's

testimony under the joint venture exception to the hearsay rule;

the defendant contends that the Commonwealth did not prove the

existence of a joint venture, and also that some of the

statements were made outside the period in which the joint

venture allegedly occurred.    The defendant maintains further that

errors in the admission of impermissible and highly prejudicial

propensity evidence, the judge's decision not to allow testimony

concerning purportedly exculpatory statements made by Grebauski,

and improper remarks in the prosecutor's closing argument require

a new trial.   The defendant objected to certain of the

evidentiary rulings and to some of the prosecutor's remarks at

trial; other asserted errors were unpreserved.   The defendant

also requests that we exercise our authority under G. L. c. 278,

§ 33E, to grant him a new trial.

    We conclude that there was no prejudicial error or
                                                                     4

substantial likelihood of a miscarriage of justice in any of the

challenged evidentiary rulings, or in the prosecutor's closing

argument.   After careful review of the record pursuant to G. L.

c. 278, § 33E, we discern no reason to order a new trial or to

reduce the degree of guilt.

    Trial evidence.     We recite facts the jury could have found,

reserving additional detail for later discussion.

    In the months prior to the killing, the defendant and his

wife were engaged in a hotly contested divorce.     The defendant

told a number of his friends that his wife intended to take the

marital home and "everything else" in the divorce.     At one point,

he told Grebauski, in Stewart's presence, that he had offered his

wife money to "just go away," but she refused.     Approximately two

to three months before the victim was killed, the defendant,

Breault, and Berryman were at Berryman's house, drinking beer,

when the defendant asked if they wanted to "make some money."

When Berryman responded affirmatively, thinking the defendant

meant a job installing vinyl siding, the defendant explained that

it was not a siding job, but that he would pay $2,000 for killing

his wife, because she was going to take everything in the

divorce.    The defendant also said that, "[i]f [his] wife takes a

dime, . . . he would pay $1,000 to get it back."    Breault and

Berryman thought that the defendant was joking.     At some point

either during or shortly after this conversation, Phinney
                                                                   5

arrived.

     In December, 1979, when the defendant was at Grebauski's

house, he asked if Grebauski "knew anyone big, big and black that

would go in there and do things to his wife that she would never

forget" while the defendant was in Florida with his fourteen year

old daughter, Ginger Kirby.   Both Stewart and Shannon Glover

Grebauski, Grebauski's then girl friend,2 heard the defendant

talking about the divorce and his desire that his wife were dead.

     At some point thereafter, Grebauski approached Stewart,

saying that he "[had] a deal for" Stewart, and that the defendant

had offered Grebauski $5,000 to kill the defendant's wife.

Stewart initially declined the offer, but, after continued

"prodding" by Grebauski, eventually agreed to kill the

defendant's wife because he owed Grebauski $500 for purchases of

cocaine.   Approximately a week before the victim was stabbed,

Stewart told his friend Stephen Tracy that "Grebauski had

somebody who wanted him to do his old lady."

     Around December 10, 1979, a week before school vacation was

to begin, the defendant and his daughter Kirby, who lived with

the victim, left to visit the defendant's older daughter, Linda

McCraney, who lived in Florida.   Kirby stayed with McCraney in



     2
       At the time of the stabbing, Richard Grebauski and Shannon
Glover had been living together for approximately ten years.
They married in February, 2003.
                                                                    6

McCraney's mobile home,3 and the defendant stayed with his girl

friend and her family.    During that time, the defendant made a

number of derogatory comments about his wife, including telling

McCraney several times that her mother "was a whore" who was

sleeping with everyone on Cape Cod, and that, "if [she] continued

with the divorce she would be sorry for what she had done."

McCraney thought that her father and sister would return to

Massachusetts before school resumed on January 3 or 4, 1980, but,

on January 3, they had not left and showed no signs of leaving.

When McCraney asked the defendant about his plans, the defendant

said that "it was none of [her] goddamn business and that he

[would] leave whenever he[ was] ready to leave."

     On January 3, 1980, the day planned for the killing, Stewart

went to Grebauski's house.    Grebauski received a telephone call

from the defendant in Florida; the defendant said that "it had to

be done that night" because Kirby needed to return to school.

Grebauski gave Stewart one of two fillet knives that were kept on

the kitchen windowsill, and a pair of gloves.   Grebauski told

Stewart that the victim would be alone in the house, because her

son would be working and her daughter was in Florida.    He told

Stewart to just walk into the house and stab the victim in the

heart.

     When Stewart drove to the victim's house for the first time

     3
         The defendant owned the mobile home.
                                                                     7

that evening, no one was at home; he went to a nearby grocery

store parking lot and returned shortly thereafter to see a

vehicle in the driveway.    He entered as Grebauski had instructed,

and found the victim upstairs in the bathroom.    He started to

choke the victim, and she slipped and hit her head on the

radiator.    Stewart then stabbed the victim in the heart and left

her on the floor with her head leaning up against the side of the

tub.    While he was moving the victim's body, he inadvertently cut

her arm.    He threw the knife and gloves in the Cape Cod canal,

then drove to his grandmother's house in Brockton, where he

telephoned Grebauski to tell him that "it's done."    Grebauski

came to the grandmother's house, and he and Stewart discussed

plans for an alibi; Stewart planned to say that he had been with

Grebauski in Brockton when the victim was killed.    Grebauski said

that he could not pay Stewart until the defendant returned from

Florida.

       That same day, Berryman telephoned the defendant in Florida,

looking for Phinney.    Berryman and Phinney had been working on a

vinyl siding job which was almost completed when Phinney suddenly

departed for a week-long vacation in Florida.    When the client

contacted Berryman, angry that the job was not finished, Berryman

attempted to reach Phinney at the defendant's house in Florida.

Berryman asked Phinney when he would be returning to

Massachusetts to complete the job, and Phinney replied, "It
                                                                    8

hasn't happened yet, but it's going to happen tonight.      Listen to

your radio, watch the TV.   She's going to die tonight."4

     Edmond Carriere, III, the son of the victim and the

defendant,5 contacted McCraney and Kirby in Florida to tell them

that their mother had been killed; they flew to Massachusetts,

while the defendant drove back.    At the victim's funeral service,

the defendant did not go inside the church, but remained outside,

sitting near his parked car.    Kirby testified that the family did

not want the defendant at the funeral because they believed that

he had harmed the victim.

     At some point shortly after the victim's death, Stewart and

Grebauski were playing pool in Grebauski's house when the

defendant telephoned to say he was coming over with the money.

When the defendant arrived, he said he was pleased that his wife

was dead ("the bitch was out of the way"), but was very angry

that his son had not been killed and that the body had not been

removed from the house so that it would not be discovered.     After

an angry exchange during which the defendant told Grebauski he

     4
       At trial, David Phinney testified that he did not tell
Charles Berryman to watch for news of the victim's death until
after he had received notice the following day that she had been
killed; Phinney said he told Berryman to watch the television
news to get more information about the killing if he had not
heard the details.
     5
       Edmond Carriere, III,   who was approximately twenty-two
years old at the time of the   victim's death, lived with the
victim and his fourteen year   old sister. For simplicity, we
refer to Edmond by his first   name.
                                                                   9

would not pay all of the agreed amount, the defendant and

Grebauski resolved their differences and the defendant threw

$10,000, in a stack of bills bound in an elastic band, onto the

pool table.   When the defendant left, Grebauski and Stewart had a

heated discussion about the amount Stewart would be paid.

Stewart had believed that the full amount offered by the

defendant was $5,000, not $10,000.   Eventually, Stewart agreed to

accept $4,500 for the killing, representing the $5,000 Grebauski

had discussed, minus a $500 deduction for the cocaine debt.

    A few months after the victim was killed, Berryman

encountered the defendant on the driveway at Phinney's house.

The defendant approached Berryman, put his arm around Berryman's

shoulder, and said, "Charlie, I hear you're doing a lot of

flapping."    When Berryman inquired what the defendant meant by

this, he responded, "You know what I mean.    You keep it up,

you're going to end up just like my wife."

    Several years after the victim's death, in 1994, the

defendant encountered Edmond and Edmond's wife, Sharon Cope

Carriere, at a fair in the Onset section of Wareham.    The

defendant approached them, but Edmond refused to speak to him,

claiming that the defendant was not his father.   The defendant

then engaged in a loud and angry verbal confrontation with Cope

Carriere, saying, among other things, that Edmond had had a

sexual relationship with his mother and should have been killed
                                                                       10

with her.

    Discussion.   1.     Standard of review.   The defendant

challenges the introduction or exclusion of testimony to which

there was an objection at trial, as well as testimony which was

introduced without objection.    Where the error was preserved, we

review for prejudicial error and consider "whether there is a

reasonable possibility that the error might have contributed to

the jury's verdict."     Commonwealth v. Alphas, 430 Mass. 8, 23

(1999).   The Commonwealth "bears the risk of doubt when any

exists as to the error being nonprejudicial."      Id.   Reversal is

not necessary if the error "did not influence the jury, or had

but very slight effect."    Commonwealth v. Cruz, 445 Mass. 589,

591 (2005), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353

(1994).   Where the error was unpreserved, we review for a

substantial likelihood of a miscarriage of justice.       Commonwealth

v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).

    2.    Admission of out-of-court statements.     "Out-of-court

statements by joint venturers are admissible against the others

if the statements are made during the pendency of the criminal

enterprise and in furtherance of it."     Commonwealth v. Burton,

450 Mass. 55, 63 (2007).    See Commonwealth v. Bongarzone, 390

Mass. 326, 340 (1983).    Such statements of coventurers are

considered to be reliable, and are deemed "equivalent to a

statement by the defendant."    Commonwealth v. Stewart, 454 Mass.
                                                                     11

527, 535 (2009), citing Commonwealth v. White, 370 Mass. 703, 708

(1976).   Before statements by coventurers may be admitted, the

Commonwealth first must establish the existence of the joint

venture (and the defendant's involvement in it) by a

preponderance of the evidence, independent of the out-of-court

statements.   Commonwealth v. Cruz, 430 Mass. 838, 844 (2000).

See Commonwealth v. White, supra at 709 n.7.    If the judge is

satisfied that the Commonwealth has met this burden, the

statement may be admitted, and the jury are instructed that they

may consider the statements only if they find that a joint

venture existed independent of the statements, and that the

statements were made in furtherance of that venture.   See, e.g.,

Commonwealth v. Bright, 463 Mass. 421, 427 (2012); Commonwealth

v. Burton, supra; Commonwealth v. Silanskas, 433 Mass. 678, 693

(2001); Commonwealth v. Cruz, supra at 844-846.

    Here, numerous out-of-court statements made by Grebauski,

Stewart, and Phinney were introduced under the joint venture

exception to the hearsay rule, the majority through Stewart's

testimony.    The defendant argues that the Commonwealth did not

establish the existence of a joint venture between the defendant

and Grebauski, Stewart, or Phinney, and therefore that many of

the out-of-court statements should not have been admitted.     The

defendant argues also that, even if the evidence was sufficient

to establish a joint venture between himself, Grebauski, and
                                                                      12

Stewart, Grebauski's statements should not have been admitted

because they were testimonial and introduced in violation of

Crawford v. Washington, 541 U.S. 36, 53-54 (2004).

    Turning first to this later argument, the claim is

unavailing.   A defendant's right under the Sixth Amendment to the

United States Constitution to confront the witnesses against him,

see Crawford v. Washington, supra, "does not bar the admission of

statements that a reasonable person in the position of the

declarant would not objectively foresee as being used in the

investigation or prosecution of a crime."    Commonwealth v.

Burton, supra at 63-64, citing Commonwealth v. Gonsalves, 445

Mass. 1, 12-13 (2005), cert. denied, 548 U.S. 926 (2006).      This

inquiry looks to the intent of the declarant and the specific

circumstances of the statement.   See Commonwealth v. Gonsalves,

supra at 12. "Certainly, just after the murder, in the privacy of

[a residence], neither [coventurer] would have reasonably

foreseen [his] statements being used in the investigation or

prosecution of a crime."   Commonwealth v. Burton, supra at 64.

"Many other jurisdictions have reached a similar conclusion,

holding in general that statements of joint venturers (or

coperpetrators or coconspirators) are the type of remarks that

the Crawford Court deemed nontestimonial."   Id.   See Crawford v.

Washington, supra at 56 ("statements in furtherance of a

conspiracy" are not testimonial).
                                                                     13

    a.   Evidence of existence of joint venture.     The defendant

challenges as improper hearsay testimony the introduction of

Stewart's description of statements Grebauski made to him

concerning the defendant's plan to kill his wife, particularly

that, on the night of the killing, Grebauski told Stewart that

the defendant had said during a telephone call from Florida that

"it had to be done that night" because the defendant's daughter

had to return to school.   The defendant also contests testimony

by Stewart's friend Stephen Tracy describing what Stewart told

him about someone wanting Grebauski "to do his old lady" a few

weeks before the victim's death; Berryman's testimony regarding

the substance of the telephone call with Phinney in Florida on

the day of the stabbing; and State police Sergeant Paul White's

testimony that Phinney told him that he went to Florida in part

to provide an alibi for the defendant.   The defendant filed a

motion in limine to exclude Tracy's testimony, and thereafter

objected when it was introduced at trial.   Defense counsel

objected to portions of Stewart's and Berryman's trial testimony;

the defendant did not object to White's testimony.

    The Commonwealth maintains that the evidence of joint

venture was stronger in this case than in Commonwealth v.

Stewart, supra at 534-536, in which the court concluded that

there was sufficient evidence of a joint venture between the

defendant, Grebauski, and Stewart, but insufficient evidence of
                                                                  14

Phinney's involvement.

     We conclude that the evidence in this case was more than

sufficient to permit the jury to find that the defendant entered

into a joint venture with Grebauski and Stewart to kill his wife.

Therefore, save for a few exceptions that we discuss infra, the

statements by Grebauski and Stewart were admissible as made in

furtherance of the joint venture to kill the defendant's wife.6

See Commonwealth v. Bright, supra at 426-427; Commonwealth v.

Stewart, supra.   Moreover, the defendant's own statements made in

furtherance of the joint venture to kill his wife are not

hearsay, and were admitted properly.   See Commonwealth v. Bright,

supra at 426 n.8, citing Commonwealth v. Marshall, 434 Mass. 358,

365-366 (2001).

     6
       Because the testimony concerning Phinney's knowledge of
the joint venture was scant, limited, and contradictory, however,
and, in any event, no testimony was introduced to establish that
Phinney shared the intent to kill the victim, the evidence was
insufficient to establish a joint venture between the defendant
and Phinney, or between Phinney and Grebauski or Stewart.
Therefore, Berryman's testimony concerning Phinney's statement
over the telephone, "It hasn't happened yet, but it's going to
happen tonight. Listen to your radio, watch the TV. She's going
to die tonight," should not have been admitted. The objected-to
admission of this evidence, however, did not result in
prejudicial error. The statement was cumulative of substantial
other evidence of the defendant's plan to kill the victim on
January 3, and also was cumulative of other evidence that Phinney
unexpectedly traveled to Florida with his family a few days
previously, inferably in part to provide an alibi for the
defendant. Moreover, at trial, Phinney denied having made the
statement, and said that he had told Berryman after being
notified of the victim's death to watch the news for further
details if Berryman did not already know them. See note 4,
supra.
                                                                   15

    b.   Scope of joint venture.     We turn to consideration of

particular statements that the defendant contends, even if we

conclude that there was sufficient evidence of a joint venture,

were beyond its scope.   The defendant maintains that certain

statements were inadmissible because they were made before the

joint venture was formed, or after it ended.    See Commonwealth v.

Andrews, 403 Mass. 441, 452 (1988) (statements of joint venturer

not admissible after joint venture has ended).    The inquiry to

determine if a statement is made during the pendency of the joint

venture, however, "focuses not on whether the crime has been

completed, but on whether a joint venture was continuing."

Commonwealth v. Stewart, supra at 537, citing Commonwealth v.

Braley, 449 Mass. 316, 322 (2007).    Statements made prior to the

formation of a joint venture may be admissible if they were made

in furtherance of a joint venture that formed thereafter.    See

Commonwealth v. McLaughlin, 431 Mass. 241, 248 (2000) ("Matters

surrounding the history of the conspiracy, including statements

of coconspirators, may be admissible even if they predate the

conspiracy").   Statements made in an effort to conceal a crime,

made after the crime has been completed, may be admissible under

the joint venture exception because the joint venture is then

ongoing, with a purpose to ensure that the joint venture itself

remains concealed.   See Commonwealth v. Braley, supra at 322;

Commonwealth v. Anderson, 445 Mass. 195, 211 (2005), quoting
                                                                  16

Commonwealth v. Colon-Cruz, 408 Mass. 533, 543 (1990).

    The defendant challenges Stewart's testimony about

Grebauski's initial $5,000 offer, and Tracy's statement that

Stewart said Grebauski had someone who wanted Grebauski to "do

his old lady" as having been made before the joint venture was

formed.   The challenged statements, however, were probative of

the defendant's intent to kill his wife and of the defendant's,

Stewart's, and Grebauski's actions in furtherance of that intent

several months later.    The judge did not abuse his discretion in

determining that these statements concerning the formation of the

joint venture were not "too remote to be relevant."   See

Commonwealth v. McLaughlin, supra; Commonwealth v. Rankins, 429

Mass. 470, 474 (1999).

    The defendant also challenges Stewart's testimony regarding

the theft of two truckloads of lumber, in which he, the

defendant, and Grebauski were involved, as being outside the

scope of the joint venture to kill the victim.   The testimony was

introduced to support a finding that the three would have been

involved in a subsequent joint venture to perpetrate the killing.

We agree that this testimony should not have been admitted on

this ground.   The lumber theft took place in 1977, several years

before the defendant told his friends and acquaintances that he

was seeking someone to kill his wife, and did not form any part

of the later joint venture to perpetrate the killing.    The
                                                                     17

testimony about another criminal enterprise in which the

defendant was involved thus was not relevant to any issue in the

case, and served only to suggest that the defendant was likely to

engage in criminal activity.     Because the Commonwealth contends

in its brief that the testimony was also admissible to show

motive and intent, we reserve for later discussion, see part 4,

infra, our consideration whether the admission of this

unobjected-to testimony was error resulting in a substantial

likelihood of a miscarriage of justice.

    3.    Propensity evidence.    The defendant asserts that certain

of his statements and testimony concerning his conduct after his

wife's death should not have been admitted because the evidence

was more prejudicial than probative and was introduced merely to

paint a negative portrait of his character.    We consider each

challenged statement in turn.

    a.    Statements that defendant wanted his son killed.     The

defendant asserts error in the admission of testimony that, in

addition to his wife, the defendant sought to have his son

killed.   This evidence included testimony by Stewart that when

Grebauski initially made the $5,000 offer to Stewart to kill the

defendant's wife, Grebauski said that the defendant also wanted

his son killed, but Stewart refused to have anything to do with

the son or with moving the wife's body.    The evidence also

included testimony by Stewart that, at Grebauski's house after
                                                                  18

the stabbing, the defendant was reported to have been angry that

his son had not been killed; and testimony by the defendant's

daughter-in-law that, in 1994, she and the defendant's son

encountered the defendant at a fair in Onset, where the defendant

told the son that he should have been killed just like his

mother.   The Commonwealth sought to introduce this evidence under

the joint venture exception, maintaining that a plan to kill the

defendant's son was part of the joint venture between Stewart,

Grebauski, and the defendant to kill his wife.    In its brief, the

Commonwealth asserts also that the evidence is relevant to the

defendant's motive to kill his wife.    The defendant did not

object to the admission of most of this testimony at trial, but

did object to certain statements.

    We conclude that the evidence was not sufficient to support

the existence of a joint venture to kill the defendant's son.

The only evidence of the defendant's solicitation of participants

in a joint venture to kill his son, or of others' possible

agreement to participate in such a venture, was introduced

through Stewart.    Stewart testified that, when Grebauski

initially had asked him about killing the defendant's wife,

Stewart told Grebauski that he refused to have anything to do

with killing the son or moving the wife's body.    The plan between

Grebauski and Stewart proceeded with the killing of the

defendant's wife.    Stewart also testified that he "assumed" that
                                                                    19

the conversation about the son meant that the defendant and

Grebauski had discussed the matter previously.    Stewart further

testified that, after the killing, Grebauski said the defendant

was angry that the son had not been killed and the wife's body

had not been moved.    Because Stewart explicitly refused to

participate in any plan to kill the son (which apparently went by

the wayside upon Stewart's refusal), Stewart was not a member of

a joint venture to kill the son, and his statements about any

such venture, if one existed, do not fall under the joint venture

exception to the hearsay rule.

       Nor was there sufficient evidence independently to support

the existence of a joint venture to kill the defendant's son.

The only evidence of such a joint venture was the hearsay

statements by Stewart.    The statements by the defendant at the

fair in Onset, years after the killing, that his son should have

been killed like the defendant's wife, do not indicate anything

about the defendant's involvement in a joint venture years

earlier that might have been formed with an intent to kill the

son.

       The Commonwealth asserts also that the defendant's hostility

toward his son is probative of the defendant's hostility toward

the victim.    Evidence of a defendant's hostility towards his

spouse may be admissible to show a defendant's motive to kill the

spouse.    See Commonwealth v. Dung Van Tran, 463 Mass. 8, 15
                                                                    20

(2012).    Here, however, evidence of the defendant's hostility

towards his son does not render the desired inference of the

defendant's hostility toward the victim and intent to kill her

more probable than it would have been absent such evidence

without asking the jury to make impermissible inferences

concerning the defendant's character.    See Commonwealth v.

Fayerweather, 406 Mass. 78, 83 (1989).   The defendant's motive to

kill his wife is unrelated to any motive he may have had to kill

his son.    The two crimes were separate and distinct.   The

evidence of the defendant's motive to kill his wife hinged on her

refusing to give him a divorce or to accept money to "just go

away," and the defendant's belief that his wife would take

everything he owned in a divorce.    There was no such motive for

the defendant to want to kill his son.    Furthermore, statements

made years after the victim's death were not, as the Commonwealth

argues, "part and parcel" of the plan to kill the defendant's

wife.   We agree that the evidence that the defendant said he

wanted his son killed was more prejudicial than probative.

    Moreover, the evidence was not crucial to the Commonwealth's

case.   Although the evidence of the defendant throwing $10,000 on

the pool table, and his argument with Grebauski about whether the

whole amount should be paid, was part of the course of the joint

venture, the argument also involved the defendant's expressed

anger over the manner in which the victim had been killed, and
                                                                   21

the fact that her body had not been removed from the house as he

had told Grebauski he wanted done.   Likewise, Stewart's argument

with Grebauski over the $5,000 he believed had been offered for

the stabbing, and the amount of $10,000 that the defendant had

discussed with Grebauski, did not involve the defendant's son.

Thus, the Commonwealth could have presented its case effectively

without statements about a hypothetical crime that never

occurred.

    Nonetheless, given the extensive, properly admitted

testimony about the defendant's statements that he wanted his

wife killed, and his efforts to hire someone to do so; his trip

to Florida and his statements while in Florida; and his actions

following the victim's death, the admission of the testimony

concerning the defendant's statements about his son was unlikely

to have influenced the jury's verdict.   See Commonwealth v.

Ortiz, 435 Mass. 569, 578-579 (2002).

    b.   Evidence of defendant's hostility toward victim.   The

defendant contends also that other testimony, both objected to

and not objected to at trial, was unduly prejudicial and

introduced to attack his character by portraying him as what the

defendant characterizes as an "evil" man who did not like his

family (a "cold monster or devil . . . who cared so little about

his wife and children").   The challenged testimony includes the

statement by the defendant's daughter McCraney that the defendant
                                                                   22

said her mother was a "whore" who was engaging in sex with

"everyone on Cape Cod"; that while McCraney and the defendant's

younger daughter flew back from Florida upon being told of the

victim's death, the defendant instead chose to drive back; and

that the defendant did not attend his wife's funeral.    The

defendant also challenges the admission of statements by Glover

Grebauski, Grebauski's then girl friend, that, approximately one

month before the stabbing, the defendant had asked if Grebauski

"knew anyone big, big and black that would go in there and do

things to his wife that she would never forget."   The

Commonwealth maintains that this evidence was admitted properly

to show the defendant's state of mind and intent toward the

victim, and that the judge's instruction on prior bad acts was

sufficient to cure any prejudice.

    Evidence of a defendant's adversarial or hostile

relationship with a spouse may be admissible to show a

defendant's motive to kill the spouse.   See, e.g., Commonwealth

v. Dung Van Tran, 463 Mass. 8, 15 (2012) (evidence that defendant

was abusive to estranged wife and children and had threatened to

kill them prior to starting fire in wife's house was admissible

because it "tended to show the defendant's long-standing and

persistent anger and hostility toward" his family and thus was

relevant to establish motive and intent); Commonwealth v. Mendes,

441 Mass. 459, 464 (2004) (defendant's use of cocaine and
                                                                    23

association with prostitutes admissible to show motive to kill

wife, because it supported inference that defendant would seek

money from wife's inheritance to support these habits);

Commonwealth v. Hunter, 416 Mass. 831, 837 (1994), S.C., 427

Mass. 651 (1998) (out-of-court statements concerning witness's

conversation with victim admissible to show hostile relationship

between defendant and victim, in order to establish defendant's

state of mind and motive to kill victim); Commonwealth v. Gil,

393 Mass. 204, 215 (1984) (evidence of hostile relationship

between defendant and spouse may be admissible as relevant to

defendant's motive to kill spouse).

    Although the derogatory statements about the defendant's

wife were prejudicial to the defendant, they were not unfairly

prejudicial.   The defendant's intent, and his participation in

the planning of the killing that was carried out by Stewart and

Grebauski, were key issues in the case, and the statements were

clearly probative on those issues.     See Commonwealth v. Carey,

463 Mass. 378, 387-388 (2012).   The statement concerning "someone

big, big and black," who would do things his wife would never

forget, is similarly relevant to the defendant's state of mind

and his hostility toward the victim.    Although, as the defendant

emphasizes, the statement contained both racial and sexual

overtones, it was not of such an unduly inflammatory nature as to

require a conclusion that the judge abused his discretion in
                                                                    24

allowing its admission, where its probative value concerning the

defendant's state of mind was strong.    See Commonwealth v. Olsen,

452 Mass. 284, 294 (2008) (that evidence on material matter is

"gruesome" or "inflammatory" does not necessarily render it

inadmissible).    There was also no error in the judge's decision

to permit the introduction of evidence that the defendant drove

rather than flew home after being informed of his wife's death,

and that he did not attend the victim's funeral.    Evidence of a

defendant's behavior after a victim's death may be admissible

where it is probative of the defendant's mental state at the time

of the killing.   See Commonwealth v. Mendes, supra at 466-467;

Commonwealth v. Cardarelli, 433 Mass. 427, 434 (2001).

    4.   Prior bad acts.    Stewart testified that, approximately

two years before the killing, he and Grebauski stole two

truckloads of lumber from a lumberyard in Wareham, at the behest

of the defendant, with Stewart acting as the driver, and that

Grebauski paid him $2,500 for the job.   In addition to his

argument that testimony concerning the theft of the two

truckloads of lumber was beyond the scope of the joint venture,

see part 2, supra, the defendant argues that the testimony was

not relevant to any issue in the case, and was introduced

impermissibly only to attack his character.

    Evidence of prior bad acts "is not admissible to show a

defendant's bad character or propensity to commit the charged
                                                                   25

crime."   Commonwealth v. Dwyer, 448 Mass. 122, 128 (2006).   It

may, however, "be admissible if relevant for other purposes such

as 'common scheme, pattern of operation, . . . identity, intent

or motive.'"   Id., quoting Commonwealth v. Marshall, 434 Mass.

358, 366 (2001).   See Commonwealth v. Beneche, 458 Mass. 61, 80

(2010) (evidence of misconduct or prior bad acts may be

admissible to show defendant's motive, intent, or state of mind).

Even if such evidence is relevant for other purposes, its

probative value must not be substantially outweighed by its

prejudicial effect.   See Commonwealth v. Sylvia, 456 Mass.

182, 192 (2010); Mass. G. Evid. § 403 (2014).

    We conclude that, in addition to not supporting the

formation of a later joint venture to kill the defendant's wife,

the testimony concerning the lumber theft also should not have

been admitted to show motive or intent.   The lumber theft was too

remote in time to make the formation of a joint venture between

the defendant, Stewart, and Grebauski to kill the victim more

likely, and bore little, if any, probative value on a motive to

kill the victim.   It served therefore merely to paint the

defendant as someone prone to criminal activity.

    Nonetheless, there was no substantial likelihood of a

miscarriage of justice in the erroneous admission of this

evidence.   In the context of the other evidence at trial

concerning the brutal killing and the victim's efforts to defend
                                                                    26

herself, the theft of materials from a lumber yard was a

relatively minor offense.    Furthermore, Stewart testified that

Grebauski, who was "into everything," and not the defendant, paid

him to be a driver in the lumber yard theft.    Moreover, defense

counsel made use of the lumber theft evidence as part of his

defense strategy.    In both opening statement and closing

argument, defense counsel argued that Grebauski, not Stewart,

killed the victim, and that the lumber theft gave Grebauski an

independent motive to want the victim dead, because both the

victim and the defendant's son Edmond were planning to testify

against Grebauski at his upcoming trial on charges stemming from

the lumber theft.7

     5.   Exclusion of statement by deceased joint venturer.    The

defendant argues that his right to due process was violated when

the judge denied his motion to admit, as a statement against

penal interest, testimony from David Mello that, while he and his

friend Grebauski were driving past the victim's house at some

point within a month of the stabbing, Grebauski said, "See that

white house there?    I offed the bitch.   She was getting to be too

much trouble and I killed her.   I had to wait until her daughter

went to Florida with her father before I could kill her."

     A defendant has a constitutional right to present a defense,

     7
       Testimony suggested that the defendant was estranged from
Edmond in part because of Edmond's plan to testify against
Grebauski.
                                                                  27

and to offer evidence that another person committed the crime.

See Commonwealth v. Galloway, 404 Mass. 204, 208-209 (1989);

Commonwealth v. Jewett, 392 Mass. 558, 562 (1984).   An out-of-

court statement "is admissible under the penal interest exception

if (1) the declarant's testimony is unavailable; (2) the

statement so far tends to subject the declarant to criminal

liability that a reasonable person in his position would not have

made the statement unless he believed it to be true; and (3) the

statement, if offered to exculpate the accused, is corroborated

by circumstances clearly indicating its trustworthiness."

Commonwealth v. Charles, 428 Mass. 672, 677 (1999), citing

Commonwealth v. Drew, 397 Mass. 65, 73 (1986).   A judge

determining whether to admit such a statement "should not base

his determination on an assessment of the proffered witness's

credibility," but rather should consider several factors,

including the relationship between the declarant and the witness,

the reliability and character of the declarant, and "the

credibility of the declarant and the credibility and probativity

of his statement" to assess whether "there is some reasonable

likelihood that the statement could be true" given the other

evidence.   Commonwealth v. Drew, supra at 75-76 (citation

omitted).   Where the question of corroboration of the declarant's

credibility or trustworthiness is a close one, a judge should err

in favor of allowing the statement to be admitted.   See
                                                                    28

Commonwealth v. Tague, 434 Mass. 510, 516-517 (2001), cert.

denied, 534 U.S. 1146 (2002) (judges should favor admission of

statements against penal interest and leave assessments of

credibility and weight to jury).

    The judge denied the motion to admit Mello's testimony on

the ground that Grebauski's statement did not meet the third

prong of the requirements for a statement against penal interest,

that the statement be corroborated by circumstances clearly

indicating its trustworthiness.    See Commonwealth v. Charles,

supra.   The judge noted that, in addition to being Mello's

cocaine supplier, Grebauski had engaged in a number of criminal

ventures with Mello, including selling drugs, stealing, and

automobile theft.   He concluded that there was no corroborating

evidence, and that nothing in the circumstances indicated the

proffered testimony was trustworthy.   Given a defendant's

constitutional right to present exculpatory evidence, and that,

in considering a statement against penal interest, "[t]he jury,

rather than the judge, should evaluate the credibility of the

witness," Commonwealth v. Drew, supra at 76, Mello's proffered

testimony should have been admitted.   See Commonwealth v. Tague,

supra.

    There was no prejudice, however, in the decision not to

leave the question of Mello's or Grebauski's credibility to the

jury.    Grebauski's statement that he "offed" the victim was not
                                                                    29

exculpatory and did nothing to undermine the Commonwealth's

theory that Grebauski participated in the killing at the

defendant's request, while the defendant was the mastermind.

Whether Grebauski killed the victim himself, or hired Stewart to

do so, did not exculpate the defendant; under either theory of

the crime, the defendant asked Grebauski to kill the victim, and

paid him for having done so.   Given the other evidence of

Grebauski's involvement, the statement would have "had but very

slight effect" on the jury.    Commonwealth v. Flebotte, 417 Mass.

348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App.

Ct. 437, 445 (1983).

    6.   Prosecutor's closing argument.    The defendant contends

that a new trial is required based on two improper aspects of the

prosecutor's closing argument.   He maintains first that the

prosecutor misstated the law and impermissibly shifted the burden

of proof by several of his remarks.   The defendant maintains

further that certain of the prosecutor's comments were highly

inflammatory and not based on the evidence, but rather were

inappropriate efforts to attack the defendant's character and to

portray him as a "mastermind," a "puppet master," and the

"architect of a murder for hire" who wished to "envelop" himself

in "a cloak of darkness" and a "veil of secrecy."

    Prosecutors may not "misstate the evidence or refer to facts

not in evidence" or "play . . . on the jury's sympathy or
                                                                    30

emotions, or comment on the consequences of a verdict."

Commonwealth v. Kozec, 399 Mass. 514, 516-517 (1987).     They may,

however, argue "forcefully for a conviction based on the evidence

and on inferences that may reasonably be drawn from the

evidence."   Id. at 516.   "Remarks made during closing arguments

are considered in the context of the entire argument, and in

light of the judge's instructions to the jury and the evidence at

trial."   Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 231

(1992).   See Commonwealth v. Francis, 450 Mass. 132, 140 (2007).

The absence of an objection at trial may be viewed as "some

indication that the tone [and] manner . . . of the now challenged

aspects of the prosecutor's argument were not unfairly

prejudicial."   Commonwealth v. Mello, 420 Mass. 375, 380 (l995),

quoting Commonwealth v. Toro, 395 Mass. 354, 360 (1985).

"[I]nstructions may mitigate any prejudice in the final

argument."   Commonwealth v. Kozec, supra at 517.

    a.    Statements concerning Commonwealth's burden.    As he did

at trial, the defendant challenges certain of the prosecutor's

statements that the defendant maintains were misstatements of law

that shifted the burden of proof away from the Commonwealth, or

that would have resulted in juror confusion as to the standard of

proof necessary for a conviction.    He points particularly to the

prosecutor's comment that it was the jury's duty to "determine

what happened or what didn't happen," and "to determine what
                                                                     31

version [of events] is the correct version.    What is it that

happened?"    He also challenges the prosecutor's statement that

"[t]he term 'verdict' comes from the Latin 'veritas,' truth; and

'dicta,' to speak.   Speak the truth.   Thirty-two years is a long

time; and now it's time for you, jurors, to speak the truth."

    Following closing arguments, the defendant sought a curative

instruction as to these statements.     He argued that telling the

jury that their job is to decide "which version is correct . . .

shifts the burden," and, "They're not looking for the truth here.

They're looking to see whether the Commonwealth has proved their

case [beyond a reasonable doubt]."    The judge declined to give

such an instruction.   In his final charge, however, the judge

instructed:

         "[Y]our function as the jury is to determine the facts
    of this case. You are the sole and exclusive judges of the
    facts. You alone will determine, What evidence do I accept?
    How important any evidence is that you do accept. And what
    conclusions you can draw from all of the believable evidence
    in this case. After that, you must apply the law as I'm
    going to state it to you to the facts as you have determined
    them to be in order to decide whether the Commonwealth has,
    as it must, proven this particular Defendant guilty of the
    offense known as murder beyond a reasonable doubt."

    "It is improper for a prosecutor to equate a guilty verdict

with justice."   Commonwealth v. Francis, supra at 140.    See

Commonwealth v. Degro, 432 Mass. 319, 328-329 (2000) (request to

jury to "do your job" and, implicitly, to find defendant guilty,

was not permissible argument).   Even assuming that certain of the
                                                                   32

prosecutor's statements could be seen as implicitly urging the

jury to do their job and find the defendant guilty, the majority

of the prosecutor's statements that the defendant characterizes

as burden-shifting did not suggest that the Commonwealth's burden

was less than proof beyond a reasonable doubt, or that the jury

could do their duty only by reaching a guilty verdict.   Indeed,

early in his argument the prosecutor noted that the defendant's

counsel had misspoken at one point and suggested that the burden

of proof rested on defense counsel; the prosecutor then correctly

stated:

         "But many times, he also said the burden is on the
    Commonwealth. And folks, make no mistake about that. That
    is absolutely 100 percent true. The burden is on the
    government here to prove this case to you beyond a
    reasonable doubt."

The prosecutor's statement regarding the jury's duty to determine

what happened, and to seek the truth, were not improper.   See

Commonwealth v. Lyons, 426 Mass. 466, 471-472 (1998) (prosecutor

may urge jury to "do [their] duties as jurors to return a just

verdict").   It is appropriate for counsel to "impress upon the

jury their duty to act with . . . impartiality."   Commonwealth v.

LaCorte, 373 Mass. 700, 707 (1977).

    A few of the prosecutor's comments were more questionable.

The remark that the jury had to determine which of two stories

was the true version of events did not, standing alone, inform

the jury that their duty was to decide whether the Commonwealth
                                                                 33

had proven the defendant's guilt beyond a reasonable doubt,

rather than to pick between two scenarios proffered by the

attorneys.8   Viewed in the context of the prosecutor's entire

closing argument, however, see Commonwealth v. Lyons, supra,

there was no prejudicial error.   See Commonwealth v. LaCorte,

supra (prosecutor's remark that jury were courageous and that he


     8
       Although the defendant made no mention of this statement,
we note that, toward the end of his closing, having summarized
the evidence and immediately after his statement that thirty-two
years is a long time, the prosecutor said, "Edmond Carriere, Jr.
is guilty of murder in the first degree under the theory of
deliberate premeditation; and he's guilty of murder in the first
degree by extreme atrocity or cruelty." A prosecutor may not
"interject his personal belief in the defendant's guilt" into his
closing argument. See Commonwealth v. Young, 461 Mass. 198, 206
(2012), citing Commonwealth v. Good, 409 Mass. 612, 623 (1991).
In the context of the surrounding statements, however, the jury
reasonably could have understood this statement as the prosecutor
arguing permissibly that they should find the defendant guilty
based on the evidence. See Commonwealth v. Mamay, 407 Mass. 412,
424-425 (1990). Cf. Commonwealth v. Santiago, 425 Mass. 491, 500
(1997), quoting Commonwealth v. Bradshaw, 385 Mass. 244, 277
(1982) (jury "could be expected to take both arguments with a
grain of salt" and would be able to sort out excessive claims
made by prosecutor).

     In any event, even if the statement were improper, it
resulted in no substantial likelihood of a miscarriage of
justice. At the beginning of his closing, the prosecutor himself
said that the jury must find the facts and that their collective
memories alone would determine what the facts were, not the
attorneys' views of the evidence. Later, before summarizing the
evidence, he argued properly, "I'm going to suggest to you,
ladies and gentlemen, that you will be convinced beyond a
reasonable doubt." In addition, the closing was followed by the
judge's forceful instructions on the attorneys' arguments being
merely their view of the evidence, and his instructions on the
Commonwealth's burden of proof and the jury's duty to determine
the facts and how much, if any, of the witnesses' testimony they
believed.
                                                                     34

believed they would return truthful verdict not improper).

Immediately before and after making this statement, the

prosecutor informed the jury correctly that the Commonwealth had

to prove its case beyond a reasonable doubt, and that it was

their exclusive province to determine what the facts were.     The

prosecutor's closing argument was followed by the judge's

detailed and proper instructions that explained the

Commonwealth's burden to prove the defendant's guilt beyond a

reasonable doubt; the instructions also emphasized that opening

statements and closing arguments are not evidence.    See

Commonwealth v. Francis, supra at 140-141 (prosecutor's statement

that "justice delayed is justice denied" was improper, but error

did not create substantial likelihood of miscarriage of justice

because jury knew that thirty years had passed since killing

occurred and argument was followed by appropriate jury

instructions); Commonwealth v. Viriyahiranpaiboon, supra at 232,

and cases cited (where prosecutor made improper burden-shifting

comments in closing, defendant must show that effect on jury was

sufficiently prejudicial to merit reversal).

    b.   Inflammatory remarks.    "A prosecutor must limit comment

in closing statement to the evidence and fair inferences that can

be drawn from the evidence."     Commonwealth v. Pearce, 427 Mass.

642, 646 (1998), quoting Commonwealth v. Kelly, 417 Mass. 266,

270 (1994).   Nonetheless, a prosecutor may argue zealously in
                                                                    35

support of inferences favorable to the Commonwealth's case that

reasonably may be drawn from the evidence.    See Commonwealth v.

Johnson, 429 Mass. 745, 748-749 (1999), quoting Commonwealth v.

Sanchez, 405 Mass. 369, 376 (1989) ("to the degree the recitation

of the evidence was inflammatory, that was inherent in the

odious . . . nature of the crime[] committed").    Although

forceful, the prosecutor's characterization of the defendant

seems to have been based properly on reasonable inferences that

could have been drawn from the evidence.     The suggestion that the

defendant was a "mastermind" and the "architect of a murder for

hire" was grounded in the evidence of months of planning by the

defendant to arrange his wife's killing in Massachusetts while he

was with friends and relatives in Florida; the characterization

of the defendant as a "puppet master," while perhaps hyperbolic,

also rested on this evidence.   See Commonwealth v. Lyons, supra

at 472-473, and cases cited ("The prosecutor's remarks were

characteristic of 'enthusiastic rhetoric, strong advocacy, and

excusable hyperbole,' and did not cross the line between fair and

improper argument").

    Moreover, even if certain of the remarks might have been

better avoided, there was no error giving rise to a substantial

likelihood of a miscarriage of justice.    Given the properly

admitted evidence, the comments that the defendant wanted someone

else to "do the dirty work" so that he could have an alibi, or
                                                                  36

that he "wishe[d] to envelop" himself "in a cloak of darkness, in

a shroud of secrecy," did not step over the line of zealous

advocacy.   Furthermore, during his final charge immediately after

the prosecutor's closing, the judge instructed that closing

arguments are not evidence, but "merely an opportunity for [the

attorneys] to sum up from their perspective what they felt the

evidence might suggest or mean to you."   See Commonwealth v.

Francis, supra at 140-141; Commonwealth v. Kozec, supra at 517

("instructions may mitigate any prejudice in the final

argument").

    6.   Review pursuant to G. L. c. 278, § 33E.    Having reviewed

the entire record pursuant to G. L. c. 278, § 33E, we discern no

reason to reduce the conviction of murder in the first degree to

a lesser degree of guilt or to order a new trial.

                                    Judgment affirmed.
