MEADE, J.
The defendant was indicted for murder in the second degree of Carlos Borrero, in violation of G. L. c. 265, § 1. After a jury trial, he was convicted of voluntary manslaughter. On appeal, he claims that the prosecutor's cross-examination of
1. Background. Based on the evidence presented at trial, the jury were entitled to find the following. The victim and the defendant had been friends for years, and one-time roommates. They worked together at Turner Fisheries in the Westin Copley Hotel, the victim as a bartender and the defendant as a line cook. A new bartender, Anna Davis, started working at the restaurant, and the defendant took a romantic interest in her. When the victim and Davis became friends and the defendant's romantic interest went unrequited, the defendant grew jealous of the victim. As time went by, the defendant grew increasingly angry and resentful of the victim. The defendant believed that the victim had been talking behind his back and that the victim might have said something to Davis to make her not want to date the defendant.
The defendant told Frank Neugebauer, the head chef, about his problems with the victim. The defendant was "quite aggravated" when he told Neugebauer, "I can't take it anymore," and, "One day I [am] going to get him." Neugebauer urged the defendant to see him if he had any problems with the victim.
On the day of the victim's death, the defendant's anger was boiling over. He was neglecting his kitchen duties and acting aggressively toward other restaurant staff. At some point that afternoon, the defendant told a coworker to tell the victim to "[s]top talking shit about me," and to tell him, "If you have any balls, come talk to me face to face." When the victim arrived at work, the coworker informed him that the defendant was mad at him. The victim was "not extremely upset about it," but replied, "Oh, really? He doesn't like it, but it's okay for him to talk behind my back."
Later that afternoon, the victim came into the kitchen and argued with the defendant in Spanish. The defendant left his work station, with a long kitchen knife in hand. Watching this unfold, Hemid Bouez, a line cook, yelled, "Stop, Ivan. Stop, Ivan," but the defendant continued approaching the victim, who
The defendant had stabbed the victim four times, with the fatal wound being to the right side of his chest. The knife went four to six inches deep into his chest, fracturing his fifth rib and some cartilage on his sixth rib, and going through a lung, the superior vena cava, and, finally, the aorta. He also suffered a cut to his right ring finger, consistent with trying to defend himself. The second stab wound was to the back of his right thigh, consistent with being stabbed with his knees drawn up to his chest. The third wound was to the front of the right thigh near his hip, and the fourth one was on the outside of his right arm.
Once the defendant was pried off the victim, he stood motionless, white, and in "shock," not responding to Bouez's frantic question, "What the fuck ... did [you do]?" He had blood covering the front of his shirt. He pulled out his cellular telephone, dialed, gave it to Bouez, and said, "Call my mother."
Moments later, security arrived and began to perform cardiopulmonary resuscitation on the victim. Neugebauer had been summoned into the kitchen, where he took the defendant aside and asked him why he had attacked the victim. The defendant said that the victim "came over. He irritated [me]," and that the victim asked him, "You want to do something about it?" The defendant replied, "Let's do it." The defendant told Neugebauer, "They lock me away for a long time now." When the defendant asked if he could have a cigarette, Neugebauer went with him to the loading dock. While there, the defendant told Neugebauer, "It was meant to be," and "I will be gone for a long time."
When the police arrived, Officer Paul DeLeo, Jr., noticed that
2. The defense. According to the defendant, he was working in the kitchen when the victim came in "yelling and screaming." The victim was loud and angry, and started talking about a woman named Angela Hanks, who used to work at the restaurant. He told the defendant, "Forget about her. She doesn't love you. It's me the one she wants. It's me the one she wants." The victim started looking around the kitchen; the defendant thought he was looking for something to throw at him. The defendant tried to calm the victim down and threatened to call Neugebauer. The victim reached for the defendant's knife, but the defendant grabbed it and put it by his side. The defendant "marched" past the line cooks, and the victim yelled, "He's got a knife. He's got a knife." When the defendant got closer to the victim, the victim twice hit him on the head with a metal bowl. The defendant tried to take it away, and the victim threw the bowl at him. The victim then grabbed a knife from a work station and ran at the defendant, swinging the knife. Cornered against the wall, the defendant stabbed the victim in the chest, and they both fell to the ground.
On the ground, the fight continued and the victim bit the defendant's face. Bouez tried to pull the defendant off the victim, but the victim was biting his face. Bouez eventually got the defendant off the victim; the victim was "shaking." The defendant knew the victim's condition was "bad," and he had a busboy call 911.
3. Discussion. a. The prosecutor's cross-examination. The defense proceeded on a theory of self-defense. In support of that defense, the defendant testified on direct examination that the victim twice hit him on the head with a metal bowl and ran toward the defendant swinging a knife. On cross-examination, the prosecutor asked whether he had told Neugebauer that the victim had attacked him with a bowl and a knife, to which the defendant replied that he had not. The prosecutor then asked,
At sidebar, the defendant objected and moved for a mistrial based on his claim that the prosecutor's question unfairly commented on the defendant's right to remain silent. The prosecutor explained that his purpose was to emphasize that the defendant had not told his coworkers about the victim's attack,
The defendant claims that the prosecutor's cross-examination ran afoul of the proscription against the use of a defendant's post-Miranda silence to impeach him. We disagree. In Doyle v. Ohio, 426 U.S. at 618, the United States Supreme Court held that the due process clause of the Fourteenth Amendment to the United States Constitution prohibits impeachment on the basis of a defendant's silence following Miranda warnings.
Here, as clarified by the prosecutor, the defendant failed to mention the victim's bowl and knife attack to his coworkers when he was asked about the stabbing. This omission or silence occurred prior to his arrest and prior to his being advised of the Miranda warnings. The due process prohibition in Doyle neither contemplates nor extends to impeachment of a defendant with his pre-Miranda silence. Jenkins v. Anderson, 447 U.S. 231, 240 (1980).
Despite the prosecutor's clarification of his question, the
Even if we indulged the possibility of the inference urged by the defendant, the claim is without merit. The fatal problem with this argument, as recognized by the trial judge, is that the defendant did not remain silent after he received the Miranda warnings.
The animating concern in Doyle was that a defendant's silence in the wake of receiving the Miranda warnings may be nothing
In light of these precepts, the challenged question, even without the clarification it received, could not have been an improper comment on the defendant's post-Miranda silence, because he did not remain silent. Even though Moriarty did not testify regarding the post-Miranda statement, the defendant cannot claim the benefit of an induced silence that did not occur. There was no error.
b. The judge's instruction on witness testimony. The defendant claims that the judge erred in instructing the jury that when a witness adopts his prior statement, the prior statement may only be used to assess credibility. We disagree, as the argument misapprehends what occurred at trial.
During his direct examination, Neugebauer testified that when he asked the defendant why the defendant had attacked the victim, the defendant stated that he asked the victim, "You want to do something about it? Let's do something about it." On cross-examination, when asked about his grand jury testimony on the subject, Neugebauer corrected his trial testimony to reflect what he had told the grand jury, i.e., that it was the victim and not the defendant who had said, "Do you want to do something about
During the charge conference, in reference to the judge's proposed instruction on prior inconsistent statements not being proof of any given fact, the defendant requested the judge to add the words "unless the witness has adopted the prior statement as true." The judge disagreed with the request and thought the suggested language was confusing because if the witness adopted the prior statement, it becomes his present testimony as substantive evidence. The defendant's objection was noted at the charge conference, and after the jury received its instructions.
During her instructions to the jury, the judge explained that a witness's prior inconsistent statement is relevant only to credibility and that it is not proof of the facts contained within the statement. This was a correct statement of the law. See Commonwealth v. Daye, 393 Mass. 55, 66 (1984). While the judge did not tack on the language the defendant requested, she did not, contrary to the defendant's claim on appeal, instruct the jury that if a witness adopts a prior statement, it would only be relevant to credibility determinations. The manner in which a judge instructs the jury is a matter of discretion, Commonwealth v. Roberts, 378 Mass. 116, 130 (1979), which was not abused here.
When the jury instructions are reviewed as a whole, as we are required to do, Commonwealth v. Miller, 457 Mass. 69, 75 (2010), what emerges is a thorough explanation of what constitutes evidence that the jury may consider. In particular, the judge made it abundantly clear that witness testimony was one form of evidence for the jury to consider. She further instructed that questions are not evidence and that only a witness's answers constitute evidence. Given that Neugebauer's trial testimony was that his grand jury testimony provided the true sequence of the conversation between the defendant and the victim, we do not see how the jury could conclude that this testimony was not to be accorded its full probative value. See Commonwealth v. Jones, 432 Mass. 623, 627 (2000) (where a witness adopts an earlier inconsistent statement as true, the adopted statement acquires full probative value).
c. Self-defense instruction. Finally, the defendant claims that
On the issue of the duty to retreat within self-defense, following the model jury instruction nearly verbatim, the judge instructed as follows:
In general, when a judge employs the Model Jury Instructions on Homicide (1999), which have been approved by the
Furthermore, in support of the requested instruction, the defendant relied on Commonwealth v. Peloquin, 437 Mass. 204 (2002), which does not mandate the use of the defendant's suggested language. In fact, it is only in dicta that the court discusses the issue at all. Id. at 211-212. There, the court noted that the judge had instructed the jury that "the defendant must have done everything that was reasonable in the circumstances to avoid physical combat before resorting to force," and that when deciding whether the defendant's use of force to protect himself was reasonable, the jury could consider what "escape routes" were available, and that a person under attack "may have to decide what to do quickly and under emotional strain." Ibid. It was these instructions, when taken as a whole, that explained "that a defendant need not retreat unless he can do so in safety, and need not do so when he would increase the danger to his own life." Id. at 212.
Judgment affirmed.