COMMONWEALTH vs. JONATHAN NIEMIC.

LENK, J. In 2012, the defendant was convicted of murder in the first degree on a theory of extreme atrocity or cruelty in the stabbing death of Michael Correia on October 20, 2010. Following the defendant's appeal from that conviction, we remanded the matter to the Superior Court, where the Commonwealth was given the option either of vacating the conviction and retrying the defendant on the murder indictment, or accepting a reduction of the verdict to manslaughter. See Commonwealth v. Niemic, 472 Mass. 665, 667, 679 (2015) (Niemic I). The Commonwealth elected to pursue a new trial. At that trial, with a different judge presiding, another attorney for the defendant, and the same prosecutor, the jury convicted the defendant of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.

In this appeal, the defendant argues that a new trial is required because of four asserted errors at his second trial: a violation of the protection against double jeopardy in pursuing the theory of deliberate premeditation, where the jury at the first trial had not checked the "guilty" box on the verdict slip for that theory; erroneously admitted testimony of a rebuttal witness, which later was treated as substantive evidence by the Commonwealth; improperly introduced testimony by a substitute medical examiner as to facts in the autopsy report; and a number of improprieties in the prosecutor's closing argument, including an issue repeated from the defendant's first trial. The defendant also asks us to exercise our authority under G. L. c. 278, § 33E, to reduce the degree of guilt or to order a new trial.

We conclude that errors in the closing argument alone, both that are reprised from the first trial and those newly introduced, would require a new trial. To the extent that this may be a close question, that determination is buttressed by other issues that emerged on our review pursuant to G. L. c. 278, § 33E. Accordingly, the defendant's conviction of murder in the first degree shall be vacated and set aside. On remand, the Commonwealth shall once again be given the option either of accepting a reduction in the verdict to manslaughter, or of retrying the defendant.

Should the Commonwealth again choose to pursue the latter path, we recognize the costs that a third trial would occasion, on

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the parties, the witnesses, the victim's family, and the court. We are nonetheless constrained to conclude that a new trial is necessary unless the Commonwealth decides to accept a reduced verdict. See Commonwealth v. Kater, 388 Mass. 519, 534 (1983), S.C., 394 Mass. 531 (1985), 409 Mass. 433 (1991), 412 Mass. 800 (1992), and 432 Mass. 404 (2000).

1. Background. We recite the facts as the jury could have found them, in the light most favorable to the Commonwealth, reserving certain details for later discussion. The victim was stabbed five times; any one of the wounds could have been fatal. The defendant testified at trial that he had stabbed the victim; the primary issue before the jury was whether he had done so in self-defense. The theory of defense was that the older, taller, and heavier victim initiated a fist fight, and then pulled out a knife; the defendant managed to wrench the knife from the victim and swung wildly to fend off the victim.

a. Facts. In the summer of 2010, the defendant was twenty-two years old and living in a halfway house in New Bedford for individuals who were recovering from alcohol and drug abuse. He was dating Lisa Weaver, who lived at a different sober house in New Bedford. During his time at the halfway house, the defendant befriended his roommates, James Nason and Nathan Goodwin. The defendant also introduced Nason to his friend Kari Wright, and the two began dating.

In August of 2010, the defendant left town for approximately two months. While he was away, the defendant wrote Weaver two love letters describing how "perfect" she was, and how he missed her and imagined them being together. At the same time, however, Weaver and the victim [Note 1] appeared to have begun a romantic relationship; they were seen in public on a number of occasions flirting, holding hands, and kissing.

The defendant returned to New Bedford in October 2010 and moved in with his grandmother. A few days before the stabbing, Nason told the defendant about the relationship between Weaver and the victim. Nason also said that the victim had referred to the defendant as a "punk," and had bragged that the victim "could take any girl away from [the defendant]." The defendant told Nason that when they next met, he would punch the victim

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in the head. [Note 2] A friend of Weaver, who was her roommate at the sober house, testified that, at some point a few days prior to the stabbing, the defendant had appeared at an Alcoholics Anonymous (AA) meeting looking for the victim.

On October 19, 2010, Weaver, Wright, and Nason picked up the defendant in a sport utility vehicle (SUV) belonging to Wright's mother. Weaver and the defendant embraced when they saw each other, and sat together in the rear seat. At some point, Wright heard the defendant angrily asking, with reference to an unknown topic, "Why didn't you tell me that?" The group spent the day at Wright's parents' house, where the relationship between Weaver and the defendant seemed affectionate, as usual. The group left so that Weaver could get back to the sober house before her 11 p.m. curfew. They planned to meet the following day to paint a property in Abington that belonged to Weaver's parents.

On October 20, 2010, at approximately 3 p.m., the defendant, Weaver, Nason, and Wright arrived at the building in Abington, and painted until 6:30 p.m., when it got dark. They left intending to return to New Bedford. En route, Weaver realized that she did not have her house key. She then remembered that some of her housemates would be attending an AA meeting at a soup kitchen at New Bedford, which regularly took place from 7 p.m. until 8:30 p.m. on Wednesdays, and decided that she could later enter the sober house with them. The four thus headed to the soup kitchen. On the way, the defendant asked Nason to stop at the side of the road because he had to urinate, but Wright would not allow this, as neither she nor Nason had a valid driver's license, and she did not want Nason to be caught at the side of the road if any police officers passed by.

Between seventy and 120 people attended the meeting that evening. The defendant, Weaver, Nason, and Wright reached the soup kitchen shortly before the usual break between 7:30 and 7:45 p.m., when many people would go outside to smoke. Nason parked approximately 200 yards from the front door. Wright remained in the vehicle, while the others headed to the soup kitchen. They encountered their former roommate Goodwin standing outside. Nason and the defendant chatted with Goodwin for approximately five minutes, and then went inside to use the restroom. Weaver also went into the building to use the restroom, and

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then joined the crowd outside.

When the defendant and Nason returned to the vehicle, the break had begun and numerous meeting participants were heading outside. Nason pointed out to the defendant that the victim was at the meeting, and then returned to the SUV. At that point, approximately eighty people were outside, in a small, crowded area. The victim and Goodwin were standing approximately fifteen feet from the entrance to the soup kitchen, looking at something on a cellular telephone. The defendant went over to talk to Weaver, who was standing on the corner near a crosswalk approximately thirty feet away from the victim. Nason moved the SUV closer to the crosswalk, and stayed inside with the vehicle idling. The defendant gestured to the victim, indicating that he wanted to talk. The victim apparently held up a finger, in a "just a minute" gesture. The defendant gave Weaver "a quick goodbye kiss." She seemed "concerned" and appeared to try to "pull[] him back" from talking to the victim, and then the defendant and Weaver kissed again. [Note 3] At some point, the defendant pulled the hood of his sweatshirt up. He crossed the street and opened the rear passenger door of the SUV as though he were about to get in, but then left the door slightly ajar and walked over to the victim. [Note 4]

The defendant said, "I've been hearing some things. I feel disrespected"; the victim asked what the defendant had heard. The defendant began punching the victim, aiming at his head, while the victim attempted to ward off the blows. [Note 5] The defendant

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tried to hold the victim in a headlock, but the victim broke free. At some point, the victim lifted his arms up with his palms facing outward and said something to the effect of, "What? Are you going to use a knife?" [Note 6] The defendant lunged at the victim four to five times. The victim ran into the soup kitchen. The defendant chased him into the building. About twenty seconds later, the defendant ran out of the building and into the SUV; the vehicle then was driven away. [Note 7]

Bystanders carried the victim, who was saying that he had been stabbed and that someone should telephone 911, upstairs to the meeting hall and tried to render first aid. His father was present. Emergency medical technicians (EMTs) arrived within a few minutes. The victim lost consciousness shortly thereafter. He was taken to a hospital by ambulance, where physicians attempted emergency surgery, but their efforts were unsuccessful and the victim was pronounced dead. He had suffered five stab wounds, any one of which could have been fatal. The two wounds on the left side of the chest had penetrated the heart, and a wound to the lower right side had perforated the liver. The fourth and fifth wounds were to the back and the lateral part of the chest. The victim was determined to have died within minutes of the stabbing.

Meanwhile, the SUV, with Nason driving, headed toward the highway. The defendant noticed that he had blood on his hands. Wright also noticed the blood and that the defendant had a small black folding knife in his lap. The defendant told the others that he had been in a fight with the victim, he thought he had stabbed the victim, and he hoped the victim was "ok." The defendant wanted to go to his grandmother's house, but Wright told Nason to drop him off at a grocery store in Fairhaven. The defendant threw the knife out the window near the exit to the grocery store.

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When they reached the grocery store parking lot, the defendant cleaned the blood from his hands, with Wright's help, using one of her tank tops that had been in the back of the SUV. He discarded the tank top in the parking lot. The others headed to Wright's parents' house, and the defendant waited at the grocery store until his grandmother picked him up.

At 8:30 p.m., the defendant and his grandmother went to the home of John Voisine, the stepfather of a close friend of the defendant's. The defendant borrowed some clothes from Voisine, and remained in his apartment for approximately four hours. [Note 8] The defendant told Voisine he had been in a fight with the victim, that he was worried the victim might be dead, and that he had not intended to harm the victim, but had been acting in self-defense. The defendant left sometime before midnight.

That evening, police interviewed multiple witnesses. They investigated the grocery store parking lot and discovered a discarded tank top covered with blood. In a grassy area near the highway, police found a small black folding knife, covered with red-brown stains. Around midnight, officers went to Voisine's apartment. The defendant was not in the apartment, but officers eventually found him under a set of exterior stairs and arrested him. [Note 9]

Deoxyribonucleic acid from the blood on the knife handle, the blade, and the tank top contained a mixture of two profiles, with the "major profile" matching the defendant's; the minor profile on the tank top did not match the victim's. The victim was a potential contributor to the minor profile on the knife handle and the blade. The major profile of the stains on the jeans that the defendant had been wearing, which were found at Voisine's house, matched the defendant's.

The defendant called a number of witnesses, and also testified on his own behalf. Several defense witnesses testified that when the defendant initially confronted the victim, the victim threatened to stab the defendant. [Note 10] The victim then punched the defendant on the side of his head, before reaching down and pulling out a knife. The defendant wrenched the knife away, while the victim continued to attack. The defendant ultimately was able to

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run to the SUV.

b. Prior proceedings. In December 2010, the defendant was indicted on a charge of murder in the first degree, G. L. c. 265, § 1. After an eight-day trial in June 2012, a Superior Court jury found the defendant guilty of murder in the first degree on a theory of extreme atrocity or cruelty. In September 2015, after review of the defendant's direct appeal by this court, the matter was remanded to the Superior Court for entry of a reduced verdict of guilty of voluntary manslaughter or a new trial, as the Commonwealth preferred. See Niemic I, 472 Mass. at 667, 679.

Prior to the defendant's second trial, he moved to preclude the Commonwealth from pursuing the theory of deliberate premeditation, and later filed a motion to dismiss the charge of murder in the first degree on that theory. Both motions were denied. After a ten-day trial in September 2016, tried by the same prosecutor [Note 11] but with different defense counsel and before a different judge, a jury convicted the defendant of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty.

2. Discussion. In this direct appeal, the defendant maintains that a new trial is required due to a violation of the protection against double jeopardy in pursuing the theory of deliberate premeditation after a purported acquittal. He also claims error in the introduction of impeachment testimony of a rebuttal witness, which was later treated as substantive evidence by the prosecutor; impermissible testimony by a substitute medical examiner; and a number of improprieties in the prosecutor's closing argument. We consider each issue in turn.

a. Double jeopardy. At his first trial, the defendant was convicted of murder in the first degree on a theory of extreme atrocity or cruelty. The jury checked the guilty box on the verdict slip for this theory, the foreperson presented it as the theory underlying the conviction, and the jurors all agreed that they found the defendant guilty under that theory. See Niemic I, 472 Mass. at 666. On the verdict slip concerning murder on a theory of deliberate premeditation, the jury checked neither the "guilty" nor the "not guilty" box. The foreperson also made no reference to the theory of deliberate premeditation when responding to the session clerk in announcing the verdict. At the second trial, the defendant was convicted on both theories.

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The defendant now contends that the jury found him not guilty of murder on a theory of deliberate premeditation at his first trial, based on their failure to check that box. Therefore, he claims, it was a violation of the double jeopardy clause of the Fifth Amendment to the United States Constitution to have retried him on that theory a second time.

This court repeatedly has declined to accept a jury's failure to mark one of the theories of a charge as an acquittal on that theory. See Commonwealth v. Carlino, 449 Mass. 71, 78-79 (2007), and cases cited; Commonwealth v. Nardone, 406 Mass. 123, 132-134 (1989); Commonwealth v. Preston, 393 Mass. 318, 320, 325 n.8 (1984). Courts in other jurisdictions also have determined that retrial is not barred in such circumstances. See United States v. Ham, 58 F.3d 78, 84-86 (4th Cir.), cert. denied, 516 U.S. 986 (1995); Beebe v. Nelson, 37 F. Supp. 2d 1304, 1307-1308 (D. Kan. 1999); State v. Pexa, 574 N.W.2d 344, 347 (Iowa 1998). We see no reason to disturb our well-established precedent in this case.

The defendant argues further that because silence was interpreted as "no" with respect to the absence of a response to a question to the venire during empanelment (when no members of the venire raised their hands in response to some of the judge's questions), silence likewise must be interpreted as "no" in the context of unmarked boxes on the verdict slip. We do not agree.

There is no indication that the jury were aware that silence on a particular theory would be deemed an acquittal. Rather, they were told that they had to be unanimous in deciding whether the defendant was guilty or not guilty, and that the foreperson was "simply to put an X or a check mark next to the appropriate verdict and then sign it certifying that it's unanimous." They were instructed further that, if they found the defendant guilty, they had to be unanimous as to which of the "two types of murder in the first degree [they found]. . . . [I]t can be one, or the other, or both."

We cannot ascertain by the jury's silence on the theory of deliberate premeditation whether they actually reached a unanimous decision to acquit the defendant on that theory. By contrast, we do know definitively that the first jury were unanimous in their conviction on a theory of extreme atrocity or cruelty at the first trial. Thus, retrial on the theory of deliberate premeditation was not error.

b. Rebuttal testimony. Toward the end of trial, after the defendant had rested his case, the Commonwealth recalled Wright as a

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rebuttal witness. [Note 12] Over the defendant's objection, she testified that, as the defendant approached the victim, Nason said "[the defendant] wants to sucker Mikey [(the victim)]. Sucker punch Mikey." While the testimony was admitted for the limited purpose of impeaching Nason's credibility, neither party requested a limiting instruction. [Note 13]

The defendant now challenges the admission of Wright's testimony as reversible error on the ground that it was irrelevant and impermissible hearsay. [Note 14] Because the statements concerned the core issue at trial of the defendant's intent in approaching the victim -- in the defendant's words, "the most important issue in the case" -- the defendant maintains that their improper admission constituted prejudicial error. We do not agree.

There was no error in the introduction of Wright's rebuttal testimony that the defendant wanted to "sucker punch" the victim in order to impeach Nason's testimony. The testimony had the

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potential to undermine Nason's credibility in the eyes of the jury, given Nason's testimony on cross-examination that he did not recall telling Wright the defendant had wanted to sucker punch the victim, and, indeed, believed that the defendant approached the victim simply to talk. See Commonwealth v. Pina, 430 Mass. 66, 76 (1999), overruled on another ground by Commonwealth v. Colon, 482 Mass. 162 (2019). Testimony reporting a prior out-of-court statement that "tend[s] to contradict [the declarant's] testimony . . . [is] admissible" for purposes of impeachment. [Note 15] Id., quoting Commonwealth v. Cataldo, 326 Mass. 373, 377 (1950). See Mass. G. Evid. § 613(a)(2), (3) & note (2019). "Although there is discretion involved in determining whether to admit or exclude evidence offered for impeachment, when the impeaching evidence is directly related to testimony on a central issue in the case, there is no discretion to exclude it." Mass. G. Evid. § 613(a)(4) note, citing Commonwealth v. McGowan, 400 Mass. 385, 390-391 (1987).

The rebuttal testimony was particularly important here for two reasons. First, as the defendant argues, it concerned the seminal issue in the case: the defendant's intent at the time he approached the victim. Secondly, the evidence of that intent rested in large part on the jury's view of the witnesses' credibility, in a case in which almost all the witnesses described the events in significantly different ways, many had known the victim, the defendant, or both, and many were vulnerable to impeachment. Both Wright, the Commonwealth's primary witness, [Note 16] and Nason, who testified for the defense, had been friends of the defendant. Both had been present in the SUV with the defendant driving to the soup kitchen, and driving away after the stabbing, thus leaving either

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of them open to possible impeachment. [Note 17]

Although there was no error in the introduction of the rebuttal testimony for impeachment purposes, the later use of the statement as substantive evidence in closing is another matter. See part 2.d, infra.

c. Autopsy report. The defendant challenges the introduction of information in the autopsy report that was introduced by a substitute medical examiner. The Commonwealth filed a motion in limine to introduce the testimony of Dr. Henry Nields, a substitute medical examiner, as the original medical examiner, Dr. William Zane, was unavailable at the time of trial. The defense objected to the use of a substitute due to a concern that the defendant would be unable to elicit testimony from Zane that the victim had had an injury to his lip, which defense counsel viewed as supporting the theory that the encounter began as a fist fight.

The Commonwealth offered either to stipulate to Zane's prior testimony or to conduct a video-recorded deposition that could be played at trial, rather than to rely on Nields's testimony. The defendant rejected both of these options. Before Nields testified, the judge reminded both parties of the limitations on permissible testimony when using a substitute medical examiner, and reminded defense counsel that he had a duty to object individually to each question he thought violated the limitations on the introduction of underlying facts from the autopsy report.

Defense counsel did not object to the prosecutor's questioning of Nields, nor to the introduction of the answers elicited directly from the autopsy report. Indeed, the evidence from the autopsy report was introduced after defense counsel stated explicitly, with respect to a question from the Commonwealth about an injury to the victim's mouth that was not clearly visible on the autopsy photographs, that he had no objection to evidence from the autopsy report being introduced on that particular issue. On appeal, however, the defendant challenges the introduction of two different sets of facts from the autopsy report, as well as the prosecutor's emphasis on the improperly admitted evidence in his closing argument. [Note 18] In particular, the defendant points to information on the height and weight of the victim and the depth and nature of

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the victim's wounds.

Nields testified, in response to an unobjected-to question from the prosecutor specifically asking about the content of the autopsy report, that the autopsy report described the victim as being five feet, eight inches tall, and weighing approximately one hundred and seventy-five pounds. This evidence touched upon an important component of the defense strategy: the defendant argued that he had been intimidated by the victim because the victim was ten years older, and taller and heavier than the defendant, in addition to being known to be aggressive ("a bully"). The defendant contends, therefore, that Nields's testimony created a substantial likelihood of a miscarriage of justice because it undermined the defense argument that the defendant was smaller than the victim. [Note 19]

We need not address the extent to which a substitute medical examiner who did not perform the autopsy may testify to the facts contained in the underlying autopsy report. Even if this evidence were improperly admitted, where it is cumulative of other, properly admitted evidence, there is no substantial likelihood of a miscarriage of justice. See Commonwealth v. Reavis, 465 Mass. 875, 884 (2013); Commonwealth v. Rogers, 459 Mass. 249, 268, cert. denied, 565 U.S. 1080 (2011). Here, other properly admitted evidence about the victim's height and weight placed essentially the same information before the jury. That evidence included testimony by Dr. Richard T. Miller, a surgeon who was called to the emergency room to perform an emergency thoracotomy on the victim; [Note 20] one of the witnesses to the stabbing who testified that he believed the defendant and the victim were "[a]bout the same height;" and a friend of the victim who testified that the

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victim was shorter and wider than his own six feet and one hundred and ninety-five pounds.

The defendant also challenges the introduction of information from the autopsy report describing the victim's wounds and stating that the wounds were three to four inches deep, information which was not evident from the autopsy photographs that Nields properly had relied upon earlier in his testimony. The information about the wounds was introduced by the prosecutor's unobjected-to specific questions as to the contents of the autopsy report.

Generally, where a defendant relies on erroneously admitted facts contained in an autopsy report to challenge the Commonwealth's theory of guilt, there is no substantial likelihood of a miscarriage of justice by the prosecutor's reliance on facts from the same report. See Commonwealth v. McGowen, 458 Mass. 461, 481-482 (2010). See also Commonwealth v. Nardi, 452 Mass. 379, 395-396 (2009). Such is the case here.

In his closing, defense counsel relied upon the challenged testimony regarding the depth of the wounds. He argued that the nature of the wounds, and their depth, showed that the defendant inflicted the fatal wounds to the heart while he swung wildly in self-defense, trying to push the victim off and that the victim died instantly. Counsel focused as well on the injury to the victim's mouth, likely inflicted by a fist (termed "the busted lip" by the prosecutor), which counsel argued showed that the confrontation had begun with a fist fight.

Moreover, Miller, the emergency room surgeon, testified that, ordinarily, a human heart lies between four and six inches below the surface of the chest, and that the victim's heart had been penetrated. One of the witnesses who saw the encounter also testified that at first he saw someone wearing a "hoodie" punching with nothing in his hand, and later saw the man holding what looked like a "blade, four or five inches long." This would have allowed the jury to infer, from properly admitted evidence, that the blade of the knife went four inches into the victim's body. [Note 21] See Rogers, 459 Mass. at 268.

d. Prosecutor's closing argument. The defendant contends that there were multiple improprieties in the prosecutor's closing argument, some reprising errors that contributed to the remand

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for a new trial in Niemic I. In particular, the defendant points to the prosecutor's reliance on Wright's rebuttal testimony as though it were substantive evidence, and the reappearance, albeit in a more nuanced form, of the appeals to jury sympathy and suggestions that the defendant's testimony was not actual evidence, [Note 22] both of which we deemed impermissible in reviewing the prosecutor's closing in Niemic I.

At his second trial, the defendant objected to the first two issues. When the prosecutor finished his closing on retrial, defense counsel argued that no instruction could ameliorate the damage caused by the substantive use of the rebuttal testimony and the improper play to juror sympathy, and that a mistrial should be declared.

We consider first whether the arguments were improper, and, if so, whether, in the context of the trial as a whole, the impropriety or combination of improprieties requires a new trial. Given all the circumstances, we conclude that the improprieties in the prosecutor's closing alone warrant a new trial. That conclusion is further reinforced when other errors that emerged during our review under G. L. c. 278, § 33E, are considered in conjunction with the challenged errors.

i. Substantive use of rebuttal testimony. At four points in his closing, the prosecutor referenced Wright's testimony concerning Nason's statement that the defendant was going to "sucker punch" the victim when he left the SUV. Three of these were used substantively, and one was used properly for impeachment purposes. [Note 23] Three times, woven throughout his closing, the prosecutor relied on the statement to argue that the defendant clearly

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intended to assault the victim, not to talk to him and resolve any issues, when the defendant approached. [Note 24]

The prosecutor maintained further, as the judge commented, "very effectively," that the defendant had gone to the soup kitchen with a "purposeful plan" to attack the victim, and that his own words proved the confrontation was planned, rather than an unexpected fight in which the defendant stabbed in self-defense. Indeed, the prosecutor's use at closing of the statement as substantive evidence was so emphatic that, after the prosecutor's closing, the judge noted sua sponte that the statement went to the "seminal" issue at trial (the defendant's intent when he went over to the victim), that she thought Wright's testimony had been introduced only for rebuttal purposes, and that she was going to give a limiting instruction to that effect. Immediately before her final charge, the judge instructed the jury accordingly. [Note 25]

Improper argument by a prosecutor can be harmless error where confined to collateral issues and accompanied by a curative instruction. Commonwealth v. Shelley, 374 Mass. 466, 470 (1978), S.C., 381 Mass. 340 (1980), and 411 Mass. 692 (1992). The prosecutor's repeated use of what had been admitted for a limited purpose as substantive evidence here, however, undermined the heart of the defense, "namely, the defendant's credibility as to who was the initial aggressor, who produced the knife, and whether the defendant acted in self-defense." [Note 26] Niemic I, 472 Mass. at 677. The improper references to the testimony as substantive evidence during closing argument could not but have had an effect upon the jury.

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See part 2.v, infra. Contrast Commonwealth v. Giguere, 420 Mass. 226, 234-235 (1995).

ii. Appeals to juror sympathy and emotion. The defendant argues that in his closing the prosecutor improperly appealed to the jury's sympathies, thus replicating an error in Niemic I that contributed to the need for a new trial. See Niemic I, 472 Mass. at 675. The Commonwealth concedes that, rather than steering a wide berth around this error on retrial, the prosecutor relied on virtually the same language on a number of occasions. Notwithstanding this court's decision in Niemic I, supra, the Commonwealth argues that the language was not an improper appeal to sympathy, but, rather, was "entirely appropriate." Alternatively, the Commonwealth maintains that, in "context," no reasonable juror would have drawn the inference from the challenged statements that the prosecutor was appealing to sympathy or saying that the defendant's testimony was inherently incredible. The Commonwealth also suggests that the asserted improprieties were relatively minor in scope in comparison to the percentage of the closing that they encompassed in Niemic I; in the Commonwealth's view, "only four" remarks by the prosecutor are at issue. While certain specific statements were not reiterated in the prosecutor's second closing, [Note 27] the emphasis on the impermissible arguments was not any less "hard driving and sustained" on "critical aspect[s] of the case." [Note 28] Id. at 677. The impact of the closing on the jury should be judged not by the number of transcript pages it occupies, but by the import of its use. [Note 29] Moreover,

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in many instances the language used was perilously close to that which had been found inappropriate in Niemic I.

At the defendant's second trial, the prosecutor began and ended his closing with the same attempt to tug at the jury's heart strings. Indeed, he framed his argument with equally improper plays to juror sympathy in virtually the same language that he had used at the first trial, including the victim's last words to his father -- "Dad, don't let me die, don't let me die," with which the prosecutor once again ended his closing -- which had been a focus of the court's discussion of the improprieties in Niemic I, 472 Mass. at 675-676. The prosecutor then proceeded in the same vein as at the first trial, frequently using much the same language. Structuring his argument with the jury's focus on the victim's words, he ended with the same pleading statement by the victim. For example,

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This is all the more surprising in that, shortly before closing arguments, the parties informed the judge that they had entered into a stipulation concerning a statement by the victim's father about the victim's last words to him, a focus of our discussion in

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Niemic I. [Note 30] Defense counsel read the stipulation to the jury immediately prior to the closings. Rather than referencing the language in the agreed-upon stipulation, the prosecutor instead chose to attack the very idea of the stipulation to which he had agreed, arguing, as noted, "give whatever consideration you want to the stipulation. It's hard to imagine how or what a father might say or understand in the course of watching his son bleed out in front of him . . . ."

As before, the prosecutor pointed out all the other people who happened to be present "at the wrong spot at the wrong time." He also said that they had seen the victim "bleeding out," "begging for his life" "in front of all these people, including his own father," "at the start," "at the middle," "and, unfortunately, the bitter end." Foreshadowed by the prosecutor's opening, [Note 31] this language mirrored the prosecutor's improper statements in Niemic I, 472 Mass. at 675, that the "civilian witnesses" were "at the wrong time at the wrong place." As the court emphasized in Niemic I, "[t]he emotional impact on witnesses of the victim's death was not a proper matter for consideration by the jury." Id.

Notwithstanding this court's prior admonitions, after defense counsel objected at the end of the closing, the prosecutor told the judge:

"The one thing I would say, Your Honor, just about dying in front of his father. One, begging for his life, that's in evidence; two, in front of his father, that was in evidence; and three, I do believe, and I think I maybe said this to you or I've said it, dying in front of your father to me is more conscious suffering than dying out in the woods alone. I mean, I would feel worse if I'm dying in front of my father. And so it goes to the issue of conscious suffering of the victim."

Pointing, however, to this court's comments about playing to juror sympathy and emotion in Niemic I, the judge, just prior to her final charge, instructed the jury that sympathy, and specifically sympathy for the father, should play no role in the jury's

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deliberations. [Note 32]

In Niemic I, 472 Mass. at 675, we concluded that the prosecutor's "highly improper, emotionally charged discussion covering three pages of transcript" that attempted to inflame the jury's emotions was a significant factor in the need for a new trial. Prosecutorial "appeals to sympathy . . . obscure the clarity with which the jury would look at the evidence and encourage the jury to find guilt even if the evidence does not reach the level of proof beyond a reasonable doubt." Commonwealth v. Bois, 476 Mass. 15, 34 (2016), quoting Commonwealth v. Santiago, 425 Mass. 491, 501 (1997), S.C., 427 Mass. 298 and 428 Mass. 39, cert. denied, 525 U.S. 1003 (1998).

In addition to the defendant's claims concerning the prosecutor's closing argument, our review under G. L. c. 278, § 33E, [Note 33] reveals two other types of improprieties, namely that the prosecutor used facts not in evidence or misstated facts and improperly stated his own opinion on multiple occasions. We discuss each in turn.

iii. Facts not in evidence and misstatements of fact. On more than ten occasions, the prosecutor argued facts not in evidence, often on issues central to the case, or asked the jury to draw inferences the evidence did not support. We focus on only a few of the more significant misstatements: (A) that the defendant had said a few months previously that he planned to slice up the victim

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at an AA meeting; (B) that the defendant had attempted deliberately to provoke the victim by overt romantic gestures with Weaver in front of the victim; and (C) that the victim had gone to the meeting that night to avoid the defendant.

A. "Slice" up the victim. In one particularly glaring misstatement, the prosecutor argued that, several months before the stabbing, the defendant had told the victim he planned to "slice [the victim] up when [he saw him] at an AA meeting." There was no testimony that the defendant made such a statement. To the contrary, Nason testified that, a few months before the stabbing, the victim had said he would "slice" the defendant when they next met. The defendant testified similarly. Even if meant sarcastically, the prosecutor was not free to attribute this testimony to the defendant. See Commonwealth v. Young, 461 Mass. 198, 206 (2012).

B. The kiss. To emphasize the defendant's premeditation, and the inference that the defendant's interaction with Weaver was designed to upset or annoy the victim, the prosecutor argued repeatedly that the defendant had intentionally hugged and kissed Weaver multiple times, in order to provoke him. "[The defendant] takes a position with [Weaver], and that's when all the hugging and the kissing, like right in front of [the victim]. Does that sound like he's trying to get a reaction: This is my girl. There was a lot of hugging and kissing that was described." The prosecutor sprinkled multiple references to "the business with the hugging and kissing," and the defendant's act of "kiss hug, kiss hug" throughout his closing.

Whether the physical intimacy between Weaver and the defendant was limited to a brief peck on the cheek or included some hugs and kisses, see note 3, supra, there was no evidence that the defendant had planned or engaged in such interaction with Weaver to provoke the victim. There was no evidence that the victim was even watching the two, whose interaction was at an approximate distance of thirty feet from the victim. The evidence was that the victim spent that time standing with his former roommate looking at his cellular telephone, learning how to download music. If anything, the evidence suggested that Weaver's conduct -- reaching out, grabbing the defendant by the arm, and pulling him back toward her, saying, "no, don't" -- was meant to detain the defendant and discourage him from approaching the victim. While a prosecutor may argue reasonable inferences to be drawn from the evidence, a prosecutor may not argue facts not in evidence or misstate the evidence. See Young, 461 Mass. at 206.

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C. Hiding from the defendant. To further his theme that the defendant had gone to the soup kitchen with a "purposeful plan" to confront the victim, rather than to drop off Weaver, the prosecutor argued that the victim ("a deer in the headlights") had gone to the AA meeting specifically to avoid the defendant, and the defendant, in turn, had "gone to where [the victim] is when he has tried -- you know, when [the victim] doesn't want to deal with [the defendant]." There was absolutely no evidence to support this misrepresentation that the victim was at the meeting at the soup kitchen seeking refuge from the defendant.

Such "[r]eferences to facts not in the record or misstatements of the evidence have been treated as serious errors where the misstatement may have prejudiced the defendant." Santiago, 425 Mass. at 499–500. See Shelley, 374 Mass. at 469 (where prosecutor introduced facts not in evidence, "we have recognized that the failure to object and possibly obtain a curative instruction may be the very thing which permits the remarks to have their maximum prejudicial effect").

iv. Statements of prosecutor's opinion. At numerous points in his closing, as he had impermissibly in Niemic I, 472 Mass. at 674-675, 677, the prosecutor explicitly told the jury his own opinion of the defendant's credibility, as well as that of some of the other witnesses. See Commonwealth v. Sanders, 451 Mass. 290, 296-297 (2008), citing Commonwealth v. Wilson, 427 Mass. 336, 352 (1998), and Commonwealth v. Chavis, 415 Mass. 703, 713 (1993) (prosecutor may not express his or her personal belief in testimony or suggest that he or she has knowledge outside record, and may not suggest prosecutor has personal knowledge of, or vouch for, credibility of any witness). See also United States v. Torres-Galindo, 206 F.3d 136, 142 (1st Cir. 2000) (vouching includes statements that "invite the jury to rely on the prestige of the government and its agents rather than the jury's own evaluation of the evidence").

A prosecutor's statement of personal belief is improper. See Commonwealth v. Thomas, 401 Mass. 109, 115 (1987). "To permit counsel to express his personal belief in the testimony (even if not phrased so as to suggest knowledge of additional evidence not known to the jury), would afford him a privilege not even accorded to witnesses under oath and subject to cross-examination. Worse, it creates the false issue of the reliability and credibility of counsel. This is peculiarly unfortunate if one of them has the advantage of official backing." Id. at 115-116, quoting

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Commonwealth v. De Christoforo, 360 Mass. 531, 547 (1971) (Tauro, J., dissenting).

Here, the prosecutor repeatedly stated his own opinion that Nason "lie[d]" [Note 34] in much of his testimony, and, later told the jury Nason had "lied to you folks." [Note 35] The prosecutor also repeatedly emphasized that the defendant was "lying," [Note 36] as were the other defense witnesses. [Note 37] The prosecutor also identified, as he had impermissibly at the first trial, see Niemic I, 472 Mass. at 671, 673, 675, 676, that testimony which had been given by "civilians" (who were not friends of the defendant) and therefore was the sole credible evidence.

The prosecutor of course was entitled to use "enthusiastic rhetoric, strong advocacy, and excusable hyperbole" (citation omitted). Wilson, 427 Mass. at 350. These statements, however, crossed the line between fair and improper argument. "This line of argument . . . further suggested to the jury that the testimony of these . . . prosecution witnesses had to be believed in toto and that any testimony of the defendant which diverged had to be discredited as a lie." Thomas, 401 Mass. at 116. A prosecutor "may not explicitly or implicitly vouch to the jury that he [or she] . . . knows that the witness's testimony is true." Commonwealth v. Marrero, 436 Mass. 488, 501 (2002), quoting Commonwealth v. Ciampa, 406 Mass. 257, 265 (1989).

Given the absence of objection by defense counsel, [Note 38] the only

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relevant instruction provided was the general instruction that the attorneys' closing arguments are not evidence, and that if the jury's memory of the evidence differed, they were to rely on their collective memory. This general instruction was not sufficient to explain to the jury why they should not rely on the prosecutor's assertions of his own beliefs. Marrero, 436 Mass. at 502. See Torres-Galindo, 206 F.3d at 142. See, e.g., Commonwealth v. Williams, 450 Mass. 894, 906 (2008) ("In cases where a prosecutor improperly has given unsworn testimony that went to a critical issue in the case, or improperly has vouched for a key Commonwealth witness, where there has been an objection [and sometimes not], and where the case against the defendant is not otherwise overwhelming [as here], we have required a judge to respond to prosecutorial misconduct with force and specificity. A general instruction, as here, will not suffice to neutralize the prejudice"). See also Commonwealth v. Worcester, 44 Mass. App. Ct. 258, 266-267 (1998) (new trial required based on prosecutor's improper comments on defendant's credibility).

v. Whether a new trial is warranted. Given our conclusion that portions of the prosecutor's closing were improper, we turn to consideration whether one or more of these improprieties, or a combination of all, warrant a new trial. In determining whether a new trial is required because of errors at trial, we consider "whether 'defense counsel seasonably objected to the arguments at trial . . . whether the judge's instructions mitigated the error . . . whether the errors in the arguments went to the heart of the issues at trial or concerned collateral matters . . . whether the jury would be able to sort out the excessive claims made by the prosecutor . . . and whether the Commonwealth's case was so overwhelming that the errors did not prejudice the defendant.'" Commonwealth v. Maynard, 436 Mass. 558, 570 (2002), quoting Santiago, 425 Mass. at 500.

"[T]he cumulative effect of all the errors must be 'considered in the context of the arguments and the case as a whole.'" Niemic I, 472 Mass. at 673, quoting Maynard, 436 Mass. at 570. "Once a properly raised objection to a prosecutor's argument is found to

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be valid, the entire record, including the balance of the prosecutor's argument, becomes relevant in determining whether the error was prejudicial to the point of requiring a reversal of the conviction." Commonwealth v. Kozec, 399 Mass. 514, 523 (1987), citing Commonwealth v. Burke, 373 Mass. 569, 577 (1977).

Here, even if no one impropriety alone would mandate a new trial, we conclude that the confluence of the asserted errors in closing, one of which reiterated the essence of the errors that contributed primarily to the need for the second trial, do again necessitate a new trial. Counsel "seasonably objected" to two of the arguments -- the substantive use of rebuttal testimony and the play to jury sympathy -- and not to the others, which we uncovered in our review pursuant to G. L. c. 278, § 33E, but the absence of an objection makes no difference in our conclusion. Even when reviewed under a substantial likelihood of a miscarriage of justice standard, [Note 39] the improprieties require a new trial, because we cannot be certain that the jury would have been able to look at the evidence clearly and reach a decision based only on proof beyond a reasonable doubt. See Bois, 476 Mass. at 34, quoting Santiago, 425 Mass. at 501.

As to the second Maynard factor, while there was no contemporaneous limiting instruction, the judge gave appropriate curative instructions with respect to the two preserved errors immediately before her final charge. See Maynard, 436 Mass. at 570; notes 25 and 32, supra. In her final charge, given shortly thereafter, the judge provided general instructions that attorneys' arguments are not evidence, and that the jurors should not make a decision based on sympathy or pity. The judge did as much as she could to mitigate the improprieties, which, in other circumstances, might be enough. See Giguere, 420 Mass. at 235.

We have long recognized, however, that not all errors can be cured by providing proper instructions. See Commonwealth v. Redmond, 370 Mass. 591, 597 (1976) (no one error "was necessarily so prejudicial that curative instructions were useless or that the instructions given were inadequate"; nonetheless, curative instructions were inadequate in circumstances to overcome combination of errors); Commonwealth v. DiMarzo, 364 Mass. 669,

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681 (1974) ("It is reasonable for us to be confident that in most cases limiting instructions accomplish their intended purpose. Nevertheless, in cases like the instant one, where the evidence subject to limitations has an extremely high potential for unfair prejudice, we have a duty to be skeptical as to the effectiveness of limiting instructions"); id., quoting Nash v. United States, 54 F.2d 1006, 1007 (2d Cir.), cert. denied, 285 U.S. 556 (1932) (in some contexts, curative instructions "have been characterized by Judge Learned Hand as 'the recommendation to the jury of a mental gymnastic which is beyond, not only their power, but anybody's else'"). See also Commonwealth v. James, 424 Mass. 770, 782 (1997), quoting Richardson v. Marsh, 481 U.S. 200, 208 (1987) (curative instruction not sufficient to cure prejudice in "cases where the codefendant's statement 'expressly implicate[s]' the defendant, leaving no doubt that it would prove to be 'powerfully incriminating'"). In the circumstances here, given the confluence of errors, the inherently highly emotional testimony, and the context of the trial, we cannot say with confidence that the repeated references to the rebuttal testimony and the appeals to sympathy and emotion did not infect the jury.

Turning to the remaining Maynard factors, the improprieties went to "the heart of the issues at trial," and were not collateral. See Niemic I, 472 Mass. at 676-677. The Commonwealth's case at the defendant's first trial was "not overwhelming," id. at 677, and in some respects it was weaker at the second trial, due to the unavailability of the medical examiner who had performed the autopsy and changes in testimony or lapses in memory by a number of witnesses. The improper undermining of the theory of defense in effect instructed the jury that they reasonably could not believe the defendant's testimony.

At the same time, the improper statements in the prosecutor's closing were designed to inflame the jury's passions, such that they would feel the need to avenge the victim, in a trial where a significant portion of the evidence, concerning the efforts to save the victim after he lost consciousness, was designed to be emotionally disturbing, in order to support the charge of extreme atrocity or cruelty. Yet, the statements were not so clearly hyperbole that the jury would have been able to identify and sort out "the excessive claims made by the prosecutor," and his exhortations that the jury could not believe the defendant or any of the "non-civilian" testimony. Maynard, 436 Mass. at 570, quoting Santiago, 425 Mass. at 500.

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"[T]he prosecutor, in his opening and closing statements . . . improperly appealed to the jury's sympathy for the victim in a way that may have 'swe[pt] the jurors beyond a fair and calm consideration of the evidence." Santiago, 425 Mass. at 493–494, quoting Commonwealth v. Perry, 254 Mass. 520, 531 (1926). The prosecutor's "comments went to the very heart of the case. They struck, and struck impermissibly, at the defendant's sole defense, and sought to impeach his only witnesses." Shelley, 374 Mass. at 471. "[I]mproper suggestions, insinuations, and, especially, assertions of personal knowledge [by the prosecutor] are apt to carry much weight against the accused when they should properly carry none." Id. at 472, quoting Berger v. United States, 295 U.S. 78, 88 (1935). It was thus unlikely that the jurors would have been able to "sort out the excessive claims made by the prosecutor" and decide the case on the evidence (citation omitted). See Niemic I, 472 Mass. at 673-674.

Given all this, the improprieties in argument, especially the appeals to sympathy, were rendered particularly crucial. "[T]hat is the nature of appeals to sympathy: they do not misstate any piece of evidence, but rather obscure the clarity with which the jury would look at the evidence and encourage the jury to find guilt even if the evidence does not reach the level of proof beyond a reasonable doubt. Thus, the strength of the Commonwealth's case is particularly crucial where improper appeals to sympathy are made. Where guilt is clear, we may conclude that the overwhelming strength of the evidence led the jury to its conclusion, but where the questions are close and difficult, we cannot be certain that the jury's conclusion was not clouded by the improper appeals and that their verdict was based on a dispassionate view of the evidence." Santiago, 425 Mass. at 501-502. Here, the evidence was not overwhelming, and the appeals to sympathy are accordingly worrisome.

We turn to the effect of the improprieties as a whole. As discussed, two of the improprieties in the prosecutor's closing are preserved, and are reviewable under a prejudicial error standard. With respect to those uncovered during § 33E review, we review for a substantial likelihood of a miscarriage of justice, under which a defendant is entitled to relief only "if we have a serious doubt whether the result of the trial might have been different had the error[s] not been made." Commonwealth v. Russell, 439 Mass. 340, 345 (2003), quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).

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In the context of this case, the use of the rebuttal testimony as substantive evidence, and the improper appeals to sympathy and emotion were prejudicial to the defendant. Because the statements at issue addressed his intent in approaching the victim -- a core issue at trial underpinning his conviction for premeditated murder -- and called upon the jury to rely on sympathy and emotion, the wrongful use of such evidence constituted prejudicial error. That is so because, in this context, the prosecutor's improper statements on seminal issues would have been too intertwined with what the prosecutor himself described as his "strenuous[]" and "contentious" trial strategies for the jury to have engaged in "fair and calm" consideration of the evidence (citation omitted). See Santiago, 425 Mass. at 494. We have serious doubt, particularly when these errors are reviewed in combination with those revealed in our review under G. L. c. 278, § 33E, "whether the result of the trial might have been different had the error[s] not been made." Russell, 439 Mass. at 345, quoting LeFave, 430 Mass. at 174. Accordingly, a new trial is necessary.

3. Conclusion. "We take no pleasure, in fact we harbor a degree of concern, that a time-consuming and costly retrial must be held. . . . Our task, not always an easy one, is to preserve the interests of justice, both for the Commonwealth and the accused. On this record, the risk of a miscarriage of justice is too great for us to let stand the defendant's conviction of murder . . . ." Kater, 388 Mass. at 534.

The verdict of guilty of murder in the first degree is vacated and set aside. The matter is remanded to the Superior Court, where the Commonwealth again may accept a reduction in the verdict to manslaughter, or once again may retry the defendant on the murder charge.

So ordered.