COMMONWEALTH vs. ROBERT E. JENNER.

LYNCH, J. A jury convicted the defendant of murder in the first degree without specifying the theory on which the convic-

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tion was based. [Note 1] On appeal, the defendant contends the trial judge erred in: (1) admitting the victim's statements that she feared the defendant; and (2) instructing the jury regarding extreme atrocity or cruelty. He also requests that, pursuant to our plenary power under G. L. c. 278, s. 33E, we either order a new trial or reduce the degree of guilt. For the reasons set forth below, we affirm the convictions and decline to exercise our s. 33E power.

1. Facts. We set forth the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with certain issues raised. See Commonwealth v. Nichypor, 419 Mass. 209, 210 (1994); Commonwealth v. Burnett, 417 Mass. 740, 741 (1994). On the evening of January 8, 1993, the defendant entered a nursing home where the victim, his estranged wife, was working. After locating her on the second floor, the defendant dragged the victim to the elevator which took them to the ground floor. Witnesses testified that, as this was occurring, the victim looked very scared, and was mouthing, "Help me." The defendant and the victim, who continued to resist, then made their way toward the nursing home's front door, at which time he began stabbing her repeatedly in the stomach. After being interrupted briefly by a nursing home orderly, the defendant returned to the victim, again stabbing her in the stomach and chest. As he did so, he screamed, "Now you're getting yours and you're getting everything you deserve." The defendant's principal defense was lack of criminal responsibility.

2. The victim's statements. The judge allowed, over the defendant's objection, two witnesses for the Commonwealth to testify that, in the months preceding her death, the victim had told them that she feared that the defendant would kill her. The defendant now claims that this was error, and that the resulting prejudice he suffered was such that a new trial is required. Although we agree that the testimony should not have been admitted, we conclude that a new trial is not required.

"A murder victim's attitude of contempt or hostility toward the defendant, when it is known to the defendant, . . . might warrant a fact finder's determination that the defendant

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responded by killing the victim." Commonwealth v. Qualls, 425 Mass. 163, 168 (1997). However, "[a] murder victim's statement that he feared the defendant, even if made known to the defendant, sheds no light on whether the defendant had a motive to kill him, and therefore is not admissible in the defendant's trial for murder." Id. at 169. See Commonwealth v. Seabrooks, 425 Mass. 507, 512-513 n.7 (1997) (victim's statement describing her "fear of the defendant . . . should not have been admitted"); Commonwealth v. Cyr, 425 Mass. 89, 94 (1997) (admission of "statements of [the victim] as to her fear of the defendant was erroneous"). It was therefore error to admit the victim's statements that she feared that the defendant would kill her.

To warrant a new trial, however, we must also conclude that the error "weakened the defendant's case in some significant way." Commonwealth v. Cyr, supra at 95. See Commonwealth v. Schulze, 389 Mass. 735, 741 (1983). Here there was ample properly admitted evidence bearing on the relationship between the victim and the defendant. Cf. Commonwealth v. Seabrooks, supra at 513. See Commonwealth v. Cruz, 424 Mass. 207, 212 (1997); Commonwealth v. Andrade, 422 Mass. 236, 239-240 (1996). The victim's daughter testified that she had previously observed the defendant's physical abuse of the victim. Others testified about the victim's fearful reaction to the defendant after he arrived at the nursing home. In addition, there was evidence of a protective order the victim had obtained against the defendant. Finally, a witness testified that the defendant had, prior to the murder, told him of his plans to kill the victim in the very same manner in which the actual murder took place. This properly admitted evidence allowed the jury to conclude, independent of the erroneously admitted statements, that the relationship between the defendant and the victim was violent and abusive. [Note 2] Furthermore, the erroneously admitted evidence had no bearing on the defendant's principal defense of lack of criminal responsibility. See Commonwealth v. Cruz, supra at 212-213; Commonwealth v. Andrade, supra at 239.

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Consequently, the defendant was not significantly prejudiced by the admission of the victim's statements.

3. The judge's instructions. The defendant next claims that the judge committed reversible error in instructing the jury that: (1) killing with a single blow could constitute murder by means of extreme atrocity or cruelty; and (2) they were not limited to the Cunneen factors in determining whether extreme atrocity or cruelty was present. Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). The defendant objected to the "single blow" instruction, but not the instruction on the Cunneen factors.

We need not dwell at length on the defendant's claim of error arising from the judge's instruction that a "single blow" killing warrants a charge of extreme atrocity or cruelty. [Note 3] Commonwealth v. Blackwell, 422 Mass. 294, 299-300 (1996). The murder in the present case resulted from twelve stab wounds to the victim's stomach and chest. Thus, there was no evidentiary basis for the jury to consider the issue. See Commonwealth v. Torres, 420 Mass. 479, 492 (1995) (erroneous self-defense instruction was harmless because evidence showed that defendant "was not entitled to" any such instruction); Commonwealth v. Avellar, 416 Mass. 409, 422 (1993) (erroneous instruction regarding malice was nonreversible error because assailant's identity, not malice, was principal issue in contention at trial); Commonwealth v. Gabbidon, 398 Mass. 1, 5 (1986) ("no harm accrues to a defendant if an error does not relate to an issue actively contested at trial").

For similar reasons, we decline to order a new trial based on the defendant's second claim. [Note 4] The defendant correctly points out that, in Commonwealth v. Hunter, 416 Mass. 831, 837 (1994), we stated that at least a finding of one of the evidentiary considerations set forth in Commonwealth v. Cunneen, supra, was a mandating prerequisite for a jury's determination that the

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defendant committed a murder with extreme atrocity or cruelty. [Note 5] See Commonwealth v. Semedo, 422 Mass. 716, 727 (1996). Nonetheless, we refuse to order a new trial because, on the evidence presented, the jury could only have based their finding of extreme atrocity or cruelty on one or more of the Cunneen factors. Immediately before her death, the victim screamed and pleaded with others for help. She was then stabbed repeatedly in the stomach and chest, left to suffer briefly, and then stabbed again. All told, the defendant stabbed the victim twelve times, stating along the way, "Now you're getting yours and you're getting everything you deserve." The defendant also kicked the victim twice in the head after she fell to the floor. Finally, the defendant told arresting officers immediately after the killing, "I guess I'll be on the news tonight." Such indifference toward his victim, coupled with the brutality and suffering involved in the killing itself, leaves us with no doubt that the finding of extreme atrocity or cruelty was based on one or more of the Cunneen factors. See Commonwealth v. James, 424 Mass. 770, 791 (1997); Commonwealth v. Goudreau, 422 Mass. 731, 736 (1996); Commonwealth v. Semedo, 422 Mass. 716, 726-727 (1996). The judge's erroneous instruction thus presented no substantial likelihood of a miscarriage of justice. For this reason, a new trial on this ground is not required.

4. General Laws c. 278, s. 33E, review. We decline to exercise our plenary power under G. L. c. 278, s. 33E, either to order a new trial or to reduce the verdict.

Judgments affirmed.