Commonwealth v. Steeves

Full title: COMMONWEALTH v. DOUGLAS STEEVES.

Court: Massachusetts Supreme Judicial Court

Date published: Jul 18, 2022

No. SJC-12981 (Mass. Jul. 18, 2022)

Opinion

SJC-12981

07-18-2022

COMMONWEALTH v. DOUGLAS STEEVES.

Stephen Paul Maidman for the defendant. Emily R. Mello, Assistant District Attorney, for the Commonwealth.

CYPHER, J.

Heard: February 7, 2022.

Indictments found and returned in the Superior Court Department on August 10, 2016.

The cases were tried before James F. Lang, J.

Stephen Paul Maidman for the defendant.

Emily R. Mello, Assistant District Attorney, for the Commonwealth.

Present: Budd, C.J., Gaziano, Cypher, Wendlandt, & Georges, JJ.

CYPHER, J.

The defendant was convicted of murder in the first degree, on a theory of deliberate premeditation.¹ The conviction arose from the defendant's admitted strangulation of his estranged wife, which the defendant contended occurred under mitigating circumstances of reasonable provocation or sudden combat during an argument. On appeal, the defendant argues that portions of a recorded interview with police should have been admitted under the doctrine of verbal completeness, instruction of the venire and attorney-conducted voir dire were improperly limited, certain communications with a former romantic partner should have been excluded from evidence, and the prosecutor's cross-examination of the defendant was improper. We affirm the convictions and decline to exercise our power under G. L. c. 278, § 33E, to reduce the verdict to manslaughter or to order a new trial.

1 The defendant was also convicted of violating a restraining order.

1. Background.

a. Facts.

We summarize the facts the jury could have found, reserving certain details for discussion. On the evening of August 1, 2016, the defendant was invited to the apartment shared by his daughters and his estranged wife, the victim, to have dinner and use the shower facilities. The defendant was homeless at the time, having broken up that same day with a romantic partner, Jean Chakoutis, with whom he had been living for the preceding two months. The victim had been dating another man in the preceding weeks; the defendant was aware of, and upset about, this relationship. Despite their separate dating relationships, an existing restraining order requiring the defendant to stay away from the victim, and the victim's initiation of divorce proceedings in February 2016, the victim and the defendant had been in intermittent contact over the preceding months, and the victim agreed to have the defendant come over for dinner on the night of the killing. During dinner, the mood was awkward: the defendant appeared to cry, and then he left the table.

After dinner, the defendant received a telephone call from an unknown caller who warned the defendant to stay away from the caller's "girl" and called the defendant by his nickname, "Binky" (Binky call). The defendant then sent a text message to his former romantic partner, Chakoutis, stating that he believed he had just received a call from Chakoutis's former boyfriend, and warning her that "no one better mess with [his] stuff." Chakoutis called the defendant shortly thereafter, assuring him that his personal belongings were safe at her home until he was ready to retrieve them; the defendant did not seem upset to Chakoutis at the time.

The defendant subsequently stayed the night in the apartment and joined the victim in her bedroom. The victim's family observed her alive at approximately 1 A.M. At some time before 2 A.M, the defendant killed the victim by strangling her, causing substantial crushing injuries to her neck. Other family members in the apartment did not awaken during the killing. The victim's body, when later discovered, showed no indication of injuries to her hands or defensive wounds. Bloodstains were found on pillows near the victim's body, but no blood was found under her fingernails. The defendant left the apartment around 2 A.M., without attempting to summon medical help or telling his daughter, with whom he spoke as he left, that he had just killed the victim.

At 3:44 A.M., the defendant arrived in the lobby of a police station, where he stated to the desk officer that he had "just killed [his] wife." After giving the defendant Miranda warnings, a police lieutenant walked the defendant to a booking room to process his arrest. As he walked down the hallway to the booking room, the defendant told the police lieutenant that he "strangled [the victim] with [his] hands" and that she was "probably not" still alive. The defendant further told the lieutenant that he had been angry about the call telling him, "Stay away from my girl, Binky Bink." Despite the defendant's conversation with Chakoutis about the Binky call prior to the killing, the defendant told the lieutenant at this time that he believed the Binky call was related to the victim. Neither the conversation with the desk officer, nor the conversation with the lieutenant in the hallway, was audio recorded.

When the defendant was examined at the police station that morning, the only injury observed on his body was a small, fingernail-sized abrasion on his chest. His shirt had a bloodstain on the chest area, which contained a combination of his and the victim's deoxyribonucleic acid.

b. The trial.

On August 10, 2016, the defendant was indicted on one count of murder in the first degree, pursuant to G. L. c. 265, § 1; and one count of violation of a restraining order pursuant to G. L. c. 209A, § 7. A jury trial commenced on September 9, 2019. At trial, the Commonwealth's theory of the case was that the defendant killed the victim with premeditation because he remained obsessed with her after the breakup of their relationship, despite his new relationship with Chakoutis, and blamed the victim for "ruining his life." The Commonwealth presented cellular text messages sent by the defendant to his daughter and the victim's boyfriend in support of the inference that the defendant's anger about perceived infidelity and thoughts of killing the victim escalated over several weeks until culminating in deliberately premediated murder.² The Commonwealth also introduced testimony recounting the unrecorded confessions the defendant made to the desk officer and lieutenant when he first arrived at the police station. The Commonwealth chose not to introduce in evidence a subsequent recorded interview of the defendant by a Salem police detective and a State police trooper, conducted more than two hours after the initial confessions, wherein the defendant again admitted to strangling the victim after he was upset by the Binky call but for the first time claimed that he had done so in response to a physical attack by the victim during a verbal argument.³

2 On multiple occasions, the defendant made statements consistent with threats against the victim. Six weeks before the killing, the defendant sent text messages to his daughter in which he stated that the victim was "making a fool of [him]," and that the victim's "days [were] numbered." The defendant stated that he hated the victim, warning his daughter to "watch what [he] do[es]," that he "want[ed] to go to jail," that he would have "[n]o more . . . cheating whore," and that he was "not taking it anymore." Approximately two weeks before the killing, the defendant sent text messages to his daughter stating that "[he] c[ould not] do this anymore," that "a person can only take so much," and that "it [was] in [his] head continuing] [non]stop." He stated that he knew whom the victim was dating and where the man lived, telling his daughter to "let [the victim] know[,] [he was] going to cave [the man's] [f]ucking head in," and stating that he "hate[d]" the victim. Approximately one week before the killing, the defendant sent a text message to Scott McHugh, who had been dating the victim for approximately a month. The defendant warned McHugh to stay away from the victim, and stated that he knew where McHugh lived and worked and what vehicle he drove.

3 Over the course of this approximately hour-long recorded interview, the defendant further explained the circumstances of the killing as follows. He received the Binky call at approximately 9:30 P..M., but initially "let it go." Later, he became upset about the call when he came to believe the caller was the victim's boyfriend telling the defendant to stay away from her. The defendant claimed that he argued with the victim about this call multiple times over the subsequent hours, ending with a final argument about infidelity at approximately 1:30 A.M. He described a verbal argument escalating when the victim grabbed his chest and then his mouth, inserted her fingers, and pulled his mouth open with her hands. The defendant claimed that it was only in response to the victim's physical attack that he grabbed her throat with both hands for a period of what he guessed was five to seven minutes. The defendant recalled the victim as unable to speak and gagging while he strangled her; he admitted that he continued to strangle her after she removed her hands from his mouth. The defendant described that the victim was limp and unresponsive when he eventually let go of her throat. He stayed with the victim for a further five to six minutes, before leaving the apartment; the victim's body was cold by this time.

The defendant conceded to the killing at the outset of the trial, and he urged the jury to find that the killing was manslaughter committed in the heat of passion. Trial counsel argued that the defendant and the victim had been in a loving relationship that deteriorated due to the victim's alcoholism and drug use, but that the pair intermittently reunited over the preceding year and were talking of moving to California together in the days prior to the killing. Trial counsel asserted that the defendant, upset by the Binky call, argued repeatedly with the victim about infidelity until she grabbed his chest and mouth, causing the defendant to "snap[]," "los[e] it," and strangle the victim before he realized what he had done.

The defendant sought to introduce the recorded interview pursuant to the doctrine of verbal completeness, arguing that it contained details of the alleged mitigating circumstances of the argument and physical attack on the defendant that were necessary to explain the meaning of his initial confessions to strangulation. The judge excluded the recorded interview as inadmissible hearsay, ruling that the doctrine of verbal completeness was not applicable where the recorded interview was a separate conversation conducted hours after the defendant's initial confessions.

With the recorded interview excluded from evidence, the defense theory of reasonable provocation by heat of passion or sudden combat was supported solely through the defendant's own testimony on the stand. The defendant testified that in the year before the killing, his previously happy relationship with the victim had deteriorated due to her heavy drinking. The defendant testified that although the victim had filed for divorce and obtained a restraining order against him, they continued to socialize several times per week, and spoke of getting back together. A few days before the killing, according to the defendant, he and the victim spoke of moving to California together within the month.

As to the night of the killing, the defendant recounted that he received a telephone call from a number he did not recognize. The caller referred to the defendant as "Binky Bink" and stated, "You talk to my girl, don't do it -- don't do it," before hanging up. The defendant testified that he had concluded that the call was from the man the victim had been dating and that he argued with her about it before leaving the apartment briefly. After the defendant returned, he testified, he continued to argue with the victim over the next few hours. The defendant recounted that the Binky call telling him to stay away from the victim "drove [him] absolutely nuts in [his] head. It just wouldn't stop."

At some point during the argument, the defendant recalled, the victim "grabbed [his] chest, and then somehow got both of her hands inside of [his] mouth and was pulling them apart." In response, the defendant testified, he grabbed the victim by the throat. The defendant testified that then "everything went black," and the next thing he remembered was holding the victim's cold body in his arms. The defendant testified that, at that time, the victim was not breathing and had lost control of her bodily functions. Believing the victim to be dead, the defendant recounted, he left the apartment and later went to the police station, where he told officers several times that he had just killed his wife and participated in a "long" interview.⁴

4 The existence of the recorded interview, but not its contents, was referenced during the defendant's testimony and at other times during the trial; the judge instructed the jury not to speculate as to its contents.

The Commonwealth's cross-examination of the defendant challenged his version of his relationship with the victim. The defendant admitted that he was angry with the victim for dating other people, despite the fact that he had been cohabitating and in a sexual relationship with Chakoutis until shortly before the killing. The defendant denied that the text messages he sent to his daughter were threats to kill the victim. Using portions of the transcript of the recorded interview, the prosecutor impeached the defendant's testimony that he "blacked out" and could not remember strangling the victim to death; the defendant testified that he did not remember stating in the recorded interview that he had strangled the victim for "five to six, seven minutes."⁵

5 The trial judge determined that the defendant's professed lack of memory was feigned, and admitted the defendant's prior inconsistent statement for impeachment purposes only. During cross-examination, the prosecutor read aloud the portion of the recorded interview transcript where the defendant estimated the time of strangulation -- the recorded interview itself was not admitted in evidence.

c. The verdict.

The jury found the defendant guilty of murder in the first degree on a theory of deliberate premeditation, and guilty of violating the restraining order requiring him to stay away from the victim. The defendant timely appealed.

2. Discussion.

The defendant argues that the trial judge erred in not admitting portions of the recorded interview under the doctrine of verbal completeness, abused his discretion by limiting the instruction of the venire and improperly limited attorney-conducted voir dire during jury selection, abused his discretion in admitting the defendant's cellular text messages and a letter to former romantic partner Chakoutis, and allowed improper cross-examination of the defendant by the prosecutor. The defendant also asks this court to exercise its power under G. L. c. 278, § 33E, to order a new trial or a reduction in the verdict. We address each contention in turn.

a. Exclusion of the recorded interview.

The defendant argues that the failure to admit in evidence "exculpatory portions"⁶ of his recorded interview with police forced him to testify to potentially mitigating circumstances under which the killing occurred, thereby violating his right not to testify, his right to a fair trial, and his right to a meaningful opportunity to present a complete defense under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. Where the exclusion of evidence involves constitutional dimensions, we examine the judge's decision independently, under "a standard higher than that of abuse of discretion." Commonwealth v. Scott, 470 Mass. 320, 327 (2014), quoting Commonwealth v. Conkey, 443 Mass. 60, 67 n.14 (2004), S.C., 452 Mass. 1022 (2008) (examining standard of review for third-party culprit hearsay evidence). Upon examination under this higher standard, we are satisfied that the exclusion of the recorded interview was not error and did not infringe on the defendant's constitutional rights.

6 The defendant fails to specify which "exculpatory portions" of the recorded interview he asserts should have been admitted under the Federal standard. It is not clear from the record whether trial counsel sought admission of the entire recorded interview under the doctrine of verbal completeness; trial counsel's arguments and the judge's evidentiary rulings on that theory of admissibility did not address any particular statements, and were general in nature.

When offered by the defendant, the recorded interview was inadmissible hearsay because he sought to prove the truth of the statements he made therein, i.e., to prove that he became upset when he came to believe that the Binky call referred to the victim's perceived infidelity, resulting in a heated verbal argument during which the victim grabbed his chest and pulled his mouth apart with her hands, causing him to strangle her. See generally Mass. G. Evid. § 801 (2022). Commonwealth v. McCowen, 458 Mass. 461, 485 (2010) ("the defendant's statement . . . was inadmissible hearsay, because the defendant made the statement outside the court room, the defendant was not subject to cross-examination regarding the statement, the statement was intended to prove the truth of the matter asserted, and the defendant, not an adverse party, was offering the statement in evidence"). In its case-in-chief, the Commonwealth did not elect to offer the recorded interview. Rather, its presentation was confined to officer testimony regarding the defendant's initial admissions regarding killing the victim, which he made upon his arrival at the police station. For that reason, the defendant could only offer the recorded interview to the extent that the Commonwealth's introduction of the prior unrecorded statements warranted an exception to the rule against hearsay.

Under Massachusetts law on this subject, "[w]hen a party introduces a portion of a statement or writing in evidence the doctrine of verbal completeness allows admission of other relevant portions of the same statement or writing which serve to clarify the context of the admitted portion and prevent one side from presenting a fragmented and misleading version of events to the finder of fact" (quotations omitted). Commonwealth v. Aduayi, 488 Mass. 658, 671 (2021), quoting Commonwealth v. Carmona, 428 Mass. 268, 272 (1998). "For a hearsay statement to be admitted under the doctrine [of verbal completeness], an adverse party must show that the additional statements are (1) on the same subject as the admitted statement; (2) part of the same conversation as the admitted statement; and (3) necessary to the understanding of the admitted statement" (quotation omitted). Commonwealth v. Amaral, 482 Mass. 496, 504 (2019), quoting Commonwealth v. Crayton, 470 Mass. 228, 247 (2014).

The defendant concedes that his unrecorded confessions upon arrival at the police station were "temporally separate" from his subsequent recorded interview, which occurred approximately two hours later. Moreover, the recorded interview was conducted by different investigators, not the desk officer and lieutenant to whom the defendant confessed upon his arrival at the police station. For those reasons, the second prong of the doctrine was not met -- the recorded interview was not part of the "same conversation" as the defendant's initial, unrecorded admissions upon arrival. Amaral, 482 Mass. at 504, quoting Crayton, 470 Mass. at 247.

Nevertheless, the defendant argues that the recorded interview would have been admissible under the broader Federal common-law doctrine of verbal completeness, to qualify the admitted statements that he strangled the victim, regardless of the time elapsed between those separate conversations. On that basis, the defendant asserts that the exclusion of the recorded interview was error because the circumstances of this case required the application of the broader Federal common-law doctrine to protect his fundamental rights to not testify, to a fair trial, and to a meaningful opportunity to present a complete defense of reasonable provocation or sudden combat.

"[A]lthough they share many similarities, Massachusetts courts follow statutory and common law of evidence, not the Federal rules." Commonwealth v. Zeininger, 459 Mass. 775, 784, cert, denied, 565 U.S. 967 (2011). The Federal "common law doctrine [of verbal completeness] is partially codified in Rule 106 of the Federal Rules of Evidence." United States v. Lopez-Medina, 596 F.3d 716, 734 (10th Cir. 2010). Specifically, Fed. R. Evid. 106 allows the introduction of "any other part -- or any other writing or recorded statement -- that in fairness ought to be considered at the same time" as "all or part of a writing or recorded statement" introduced by an opposing party.⁷ "[T]he provision of Rule 106 grounding admission on 'fairness' reasonably should be interpreted to incorporate the common-law requirements that the evidence be relevant, and be necessary to qualify or explain the already introduced evidence allegedly taken out of context." United States v. Sutton, 801 F.2d 1346, 1369 (D.C. Cir. 1986) .

7 "Rule 106, by its text, does not apply to unrecorded oral statements." United States v. Altvater, 954 F.3d 45, 51 (1st Cir. 2020). However, the Federal common-law doctrine of verbal completeness has been applied to encompass unrecorded oral conversations in addition to the written and recorded statements explicitly identified in rule 106. Lopez-Medina, 596 F.3d at 734 ("we have held the rule of completeness embodied in Rule 106 is substantially applicable to oral testimony, as well by virtue of [Fed. R. Evid. 611(a)], which obligates the court to make the interrogation and presentation effective for the ascertainment of the truth" [quotations and citation omitted]).

Relying on United States v. Giles, 246 F.3d 966, 974 (7th Cir. 2001), the defendant argues that the Federal common-law doctrine contemplates the introduction of statements made in separate conversations, even where the opposing party has introduced the entirety of one conversation, without any limitation on the temporal relationship between those conversations when determining whether "fairness" requires admission. On that basis, the defendant asserts that the Commonwealth's introduction of his initial confessions upon arrival would likely require admission, under the Federal common-law doctrine, of "exculpatory portions" of the recorded interview, despite the approximately two-hour delay and difference in participants between the conversations. Even if we were to assume without deciding that some or all of the recorded interview statements would be admissible under the Federal common-law doctrine,⁸ we nevertheless decline to apply the Federal doctrine in this case because the application of Massachusetts law did not burden the defendant's constitutional rights. "A defendant's right to present relevant evidence is not unlimited, but rather is subject to reasonable restrictions." United States v. Scheffer, 523 U.S. 303, 308 (1998). "[S]tate . . . rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials. Such rules do not abridge an accused's right to present a defense so long as they are not 'arbitrary' or 'disproportionate to the purposes they are designed to serve.'" Id., quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987). Only where the exclusion of evidence has "infringed on a weighty interest of the accused" is such exclusion unconstitutionally arbitrary or disproportionate. Scheffer, supra.

8 Giles provides only limited support for the defendant's proposition, and it is distinguishable in several key aspects from the case at bar. There, a prosecutor offered the entirety of several recorded conversations between a defendant and an informant, but did not offer another, allegedly exculpatory, conversation between the pair occurring three weeks after the admitted conversations. Giles, 246 F.3d at 974. The Giles defendant argued that the later conversation should have been admitted under any of three Federal rules of evidence: as evidence of his then-existing mental state under Fed.R.Evid. 803(3), as completeness evidence necessary to contextualize his prior statements under Fed.R.Evid. 106, and otherwise under the Fed.R.Evid. 807 catch-all provision. I_d. Without specifying which rule provided the basis of its conclusion, the Giles court held that although a "close evidentiary call," the later conversation "should have been admitted"; its reasoning emphasized the defendant's intention to testify at trial and the attendant opportunity for cross-examination. I_d. The Giles court ultimately concluded that the exclusion of the later conversation was not an abuse of discretion and that any error was harmless given the strong evidence of guilt. I_d. Even assuming for the purposes of argument that the Giles court's ambiguous holding as to admissibility rested upon Fed.R.Evid. 106, the circumstances at issue here are distinguishable: the defendant's initial unrecorded confessions were made to different individuals from those to whom his recorded interview statements were made, and the claimed error arises from the defendant's assertion that he planned not to testify at trial but was compelled to do so by the exclusion of the recorded interview. Id. Moreover, even though the Federal doctrine of completeness does not categorically exclude temporally separate conversations, such wholly distinct conversations may nevertheless fail to meet Federal rule 106's relevance or necessity requirements. See, e.g., United States v. Burks, 746 Fed.Appx. 191, 201 (4th Cir. 2018), cert, denied, 139 S.Ct. 1204 (2019) (rule 106 did not apply to additional "separate conversations" where admitted statements between defendant and coconspirator were "complete conversations or email exchanges"); United States v. Reese, 666 F.3d 1007, 1019-1020 (7th Cir. 2012) (no abuse of discretion in declining to admit under rule 106 "entirely separate and distinct" conversations between defendant and one coconspirator occurring several months after admitted conversations between defendant, confidential informant, and one coconspirator); United States v. Bauzo-Santiago, 49 F.Supp.3d 155, 159 (D.P.R. 2014) (rule of completeness inapplicable to "two separate and distinct interviews" with two different law enforcement agencies occurring on same day).

Here, the application of Massachusetts law did not wholly preclude admission of evidence supporting the defense's theory of reasonable provocation or sudden combat. Instead, it merely eliminated the strategic option to present the defendant's testimonial statements absent the risk of cross-examination: it restricted only the form, not the content, of evidence that the victim grabbed the defendant's chest and mouth during a heated argument about the Binky call. See Commonwealth v. Leiva, 484 Mass. 766, 782 (2020), quoting Scheffer, 523 U.S. at 308 (where evidentiary rule "restrict[s] only the manner in which a party may present evidence, without restricting its content," and is not "arbitrary or disproportionate to the purposes [it is] designed to serve," rule "do[es] not abridge an accused's right to present a defense" [quotations omitted]). We conclude that the application of Massachusetts law in this instance did not infringe on the defendant's State or Federal constitutional rights, because (i) the limitation of our existing doctrine of verbal completeness to exclude a separate conversation, occurring more than two hours later and amongst different individuals, is logically related to the important purposes we intend our law of evidence to serve, and (ii) insofar as our law of evidence may limit the defendant's opportunity to present a defense of reasonable provocation or sudden combat without having his statements subject to cross-examination, "the interests served by [our] [law] justify the [possible] limitation imposed on the defendant's constitutional right[s]" (alterations in original). Leiva, supra at 783, quoting Rock, 483 U.S. at 56.

"'[A]dherence to rules of procedure that govern the orderly presentation of facts and arguments to provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponent's case' are necessary for the adversary process to function effectively, and '[t]he State's interest in the orderly conduct of a criminal trial is sufficient to justify the imposition and enforcement of firm, though not always inflexible, rules relating to the identification and presentation of evidence.'" Leiva, 484 Mass. at 781 n.14, quoting Taylor v. Illinois, 484 U.S. 400, 411 (1988). "State . . . [g]overnments unquestionably have a legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial. Indeed, the exclusion of unreliable evidence is a principal objective of many evidentiary rules." Scheffer, 523 U.S. at 309. This objective underpins the rule against hearsay, which informs the purpose of the Massachusetts doctrine of verbal completeness. The purpose of the rule against hearsay is "the prevention of evidence by those not present at trial." Commonwealth v. Diaz, 453 Mass. 266, 278 (2009), overruled on other grounds by Commonwealth v. Womack, 457 Mass. 268 (2010). This rule guards against the admission of unsworn testimony presented without the opportunity for cross-examination of the declarant, wherein the reliability and accuracy of the statement could be tested. 2 McCormick on Evidence § 245 (R.P. Mosteller ed., 8th ed. 2020). See Commonwealth v. DelValle, 351 Mass. 489, 491 (1966), S_.C., 353 Mass. 684 (1968) ("The theory which underlies exclusion [of hearsay evidence] is that with the declarant absent[,] the trier of fact is forced to rely upon the declarant's memory, truthfulness, perception, and use of language not subject to cross-examination"). Thus, exceptions to the rule against hearsay must be narrowly crafted so as not to frustrate the purpose of the rule itself.

Our law of evidence accomplishes this purpose without unduly burdening a defendant's constitutional rights through the interaction of two exceptions: the doctrine of verbal completeness, and the constitutionally based exception to the hearsay rule articulated in Commonwealth v. Drayton, 473 Mass. 23, 25 (2015), S_.C., 479 Mass. 479 (2018). Our doctrine of verbal completeness exception is limited in scope to instances where otherwise inadmissible hearsay on the same subject is necessary to prevent a presentation of a misleading version of events through admission of selected fragments of a single conversation or document. Aduayi, 488 Mass. at 671. As such, the doctrine directly specifies temporal and subject factors as determinative of the equivalent, but more general, relevancy standard incorporated into Fed.R.Evid. 106. Compare Sutton, 801 F.2d at 1369 (rule 106 incorporates "common-law requirement[] that the evidence be relevant"), with Amaral, 482 Mass. at 504 (statements at issue must be on "same subject" and made in "same conversation" as admitted statements). For that reason, these temporal and subject factors may operate to exclude hearsay statements that could otherwise be determined to be relevant under Fed.R.Evid. 106. However, "[a]lthough perhaps no rule of evidence has been more respected or more frequently applied in jury trials than that applicable to the exclusion of hearsay," our law of evidence, such as the doctrine of verbal completeness exception, "may not be applied mechanistically to defeat the ends of justice." Drayton, 473 Mass. at 35, quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973) .

It is for that reason that we have applied the United States Supreme Court's reasoning in Chambers to recognize a "narrow, constitutionally based exception to the hearsay rule . . . where otherwise inadmissible hearsay is critical to the defense and bears persuasive guarantees of trustworthiness." Drayton, 473 Mass. at 25. This constitutional hearsay exception "operat[es] only in the rarest of cases," J_d. at 40, to avoid injustice "where constitutional rights directly affecting the ascertainment of guilt are implicated," Chambers, 410 U.S. at 302, and exclusion of evidence "significantly undermine[s] fundamental elements of [a] defendant's defense," Scheffer, 523 U.S. at 315. Although the application of this exception requires a highly fact-intensive inquiry, certain elements support the conclusion that a hearsay statement has "persuasive guarantees of trustworthiness": hearsay that fails to satisfy the technical requirements for a traditional hearsay exception, but nevertheless appears to fall within the rationale for such an exception; hearsay that is corroborated by some other evidence in the case; and hearsay offering a consistent account on multiple occasions over time. Drayton, supra at 37, 38. These elements fairly balance the interest in excluding unreliable testimony with a defendant's right to present a defense, ensuring that a defendant's constitutional rights are not infringed by the application of our doctrine of verbal completeness to the extent that its temporal and subject factors apply more narrowly than the Federal relevancy standard.

Here, despite the substantial similarity between the defendant's arguments regarding the Massachusetts and Federal doctrines of verbal completeness and the reasoning in Drayton, the defendant does not urge this court to find that Drayton applies here, and we find no reason to conclude that it does. Insofar as the recorded interview falls within the rationale of the Massachusetts doctrine of verbal completeness, but not the technical "same conversation" requirement, the recorded interview is not corroborated by other evidence in the case or reflective of multiple consistent accounts over time. Drayton, 473 Mass. at 37, 38. No witness other than the defendant testified that an argument occurred between the pair on the night in question; to the contrary, none of the other family members present in the apartment awoke during the killing. Likewise, the physical evidence was largely inconsistent with the defendant's version of events: although the defendant had a small scratch on his chest at the time of the recorded interview, no blood was found under the victim's fingernails, and her hands bore no injuries consistent with forcing apart the defendant's mouth. Further, the defendant did not mention to his daughter an argument or strangulation triggered by the victim assaulting him, despite speaking with the daughter as he left the apartment shortly after the killing -- this explanation was only offered to investigators during the recorded interview two hours after the defendant's arrival at the police station, after time for reflection.

In such circumstances, the defendant's recorded interview statements represent not the "rarest of cases" warranting the application of the constitutionally based hearsay exception, but a common circumstance where a defendant makes potentially favorable hearsay statements to investigators at various times during an investigation that would benefit the defense if offered without the risk of cross-examination. See Drayton, 473 Mass. at 40. In this context, it is reasonable to require that evidence of the defendant's version of events be subjected to cross-examination and the legitimate demands of the adversarial system. Leiva, 484 Mass. at 782. Accordingly, we find that, in the circumstances of this case, the exclusion of the defendant's recorded interview statements as inadmissible hearsay did not violate the defendant's right not to testify, his right to a fair trial, or his right to a meaningful opportunity to present a complete defense under the Fifth, Sixth, and Fourteenth Amendments and art. 12.

b. Instruction of the venire and limitation on attorney-conducted voir dire.

The defendant contends that two aspects of the jury empanelment violated his right to trial by an impartial jury. First, he argues that the judge erroneously refused to instruct the venire that murder is subject to mitigating circumstances, such as heat of passion on reasonable provocation. Second, the defendant asserts that his trial counsel was improperly restrained in the type of questions he was permitted to ask during individual voir dire. We conclude that no prejudicial error occurred during empanelment.

"A criminal defendant is entitled to a trial by an impartial jury pursuant to the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights." Commonwealth v. Espinal, 482 Mass. 190, 194 (2019), quoting Commonwealth v. Williams, 481 Mass. 443, 447 (2019). "[P]art of the guarantee of a defendant's right to an impartial jury is an adequate voir dire to identify unqualified jurors." Espinal, supra, quoting Commonwealth v. Dabney, 478 Mass. 839, 848, cert, denied, 139 U.S. 127 (2018). Since 2014, attorneys and self-represented parties in the Superior Court have had the right to question potential jurors during voir dire, but "the scope of such questioning remains in the discretion of the judge," Dabney, supra, who "need not [approve] the specific questions proposed by the defendant," Commonwealth v. Morales, 440 Mass. 536, 548-549 (2003), quoting Commonwealth v. Sanders, 383 Mass. 637, 641 (1981). See G. L. c. 234A, § 67D. "Following voir dire, a judge's determination that a jury are impartial will not be disturbed absent clear error or law or abuse of discretion." Espinal, supra.

However, certain categories of questions posed to the venire are mandatory. General Laws c. 234A, § 67A, inserted by St. 2016, c. 36, § 4 (formerly G. L. c. 234, § 28), requires the trial judge in every criminal case to inquire as to several subjects, including the presumption of innocence, the Commonwealth's burden of proof, and the absence of any burden on the defendant.⁹ The second paragraph of § 67A requires additional inquiry of jurors where "it appears that ... a decision [may] be made in whole or in part upon issues extraneous to the case, including, but not limited to, community attitudes, possible exposure to potentially prejudicial material or possible preconceived opinions toward the credibility of certain classes of persons." "We have interpreted this language to mean that, where a defendant can show that there exists a substantial risk of extraneous issues that might influence the jury, additional questioning is required . . . [of] each prospective juror individually and outside the presence of other persons" (quotations and citations omitted). Espinal, 482 Mass. at 196. We have determined that a substantial risk of extraneous influence exists as a matter of law where the defendant's lack of criminal responsibility is at issue, Commonwealth v. Seguin, 421 Mass. 243, 249 (1995), cert, denied, 516 U.S. 1180 (1996), and "in trials for murder, rape, and sex offenses against children where the defendant and victim are of different races" or ethnic backgrounds, Commonwealth v. Mason, 485 Mass. 520, 524 (2020), citing Commonwealth v. Colon, 482 Mass. 162, 175-176 (2019) (collecting cases).

9 General Laws c. 234A, § 22, also requires that prospective jurors complete a confidential juror questionnaire, which elicits "the juror's name, sex, age, residence, marital status, number and ages of children, education level, occupation, employment address, spouse's occupation, spouse's employment address, previous service as a juror, present or past involvement as a party to civil or criminal litigation, relationship to a police or law enforcement officer, and such other information as the jury commissioner deems appropriate."

Here, the defendant requested that the judge instruct the jury regarding mitigating circumstances to murder, a subject that we have not previously recognized as posing a substantial risk of extraneous influence or as required by § 67A. Specifically, the defendant requested before trial that the judge include in his statement of facts to the venire the contention that "[t]he defense in this case maintains that although [the defendant] did cause the death of [the victim], he did so as a result of heat of passion upon reasonable provocation." The defendant argued that because the legal concept of mitigating circumstances to murder was "less known to the public," it was necessary to raise the issue to the attention of the venire to properly assess impartiality through the general bias question posed collectively to members of the venire. Although the judge did not make a clear ruling on the defendant's request during the pretrial conference, he subsequently did not include the requested description in his statement of the facts to the venire.

Notably, the defendant did not offer before empanelment, and does not offer on appeal, any support for his assertion that the public has limited awareness of reasonable provocation as a mitigating circumstance. He also does not argue that such limited awareness would result in a substantial risk of extraneous influence. "Where the subject of requested questioning is not enumerated in G. L. c. 234A, § 22, or G. L. c. 234A, § 67A, and where, as here, no substantial risk of extraneous influence has been shown, both the scope and form of such questioning are left to the sound discretion of the trial judge." Espinal, 482 Mass. at 197. We cannot conclude that the judge here abused his discretion by declining to instruct the venire as to the existence of the defendant's reasonable provocation defense theory before posing the collective general bias question. I_d. at 200 (defendant's "bare allegation that there exists a widespread belief that could result in bias" insufficient to conclude decision declining to voir dire on that basis was abuse of discretion). Moreover, we see no reason to invoke our power of general superintendence to require trial judges in future cases to include upon the defendant's request mitigating circumstances, or reasonable provocation specifically, in collective or individual voir dire.

Next, we turn to the defendant's arguments regarding the scope of attorney-conducted individual voir dire. At the beginning of individual voir dire, the defendant's trial counsel asked a prospective juror about the subject of her education degree. The judge permitted the prospective juror to answer the question, but subsequently instructed trial counsel that he would not permit attorney questions relating to "general background information that might help inform" peremptory challenges unless there was an apparent connection to potential bias. The judge later clarified that he did not intend to "chill either attorney's legitimate questioning on bias issues," and assured counsel that they should "stand up and ask [their] questions" because he would "let [them] know after the fact if it was something that [he] thought was more extraneous." Thereafter, trial counsel subsequently questioned three additional prospective jurors about the subject of their respective doctoral degrees, without restriction or further comment by the judge. One of these prospective jurors was seated, one was excused upon the Commonwealth's exercise of a peremptory challenge, and one was excused upon the defendant's exercise of a peremptory challenge.¹⁰

10 During empanelment, the defendant exercised the majority of, but did not fully exhaust, his peremptory challenges.

We agree that the judge erred in instructing counsel that attorney-conducted voir dire is properly limited to questions solely relating to apparent bias, and does not include the opportunity to elicit information that may help counsel exercise a peremptory challenge. See American Bar Association, Principles for Juries and Jury Trials, Principle 11(B)(3) (rev. 2016) (voir dire should be "sufficient to disclose grounds for challenges for cause and to facilitate intelligent exercise of peremptory challenges"). However, we conclude that the error was harmless and did not result in a substantial likelihood of a miscarriage of justice where the record demonstrates that the judge's misstatement did not produce actual restraint upon trial counsel's subsequent inquiry regarding background information, such as educational degrees, or the exercise of the defendant's peremptory challenges. See Colon, 482 Mass. at 175 (defendant's exclusion from voir dire harmless error where no demonstration of actual prejudice).

c. Admission of the Chakoutis text messages and letter.

Next, the defendant argues that the trial judge abused his discretion in admitting prior bad act evidence in the form of text messages between the defendant and his former romantic partner, Chakoutis, as well as a letter the defendant sent to Chakoutis three years after the homicide. "We review a judge's decision to allow the introduction of prior bad act evidence for abuse of discretion." Commonwealth v. Peno, 485 Mass. 378, 386 (2020). "When assessing whether the risk of unfair prejudice outweighs the probative value of the challenged evidence, the factors a reviewing court considers may include (1) whether the trial judge carefully weighed the probative value and prejudicial effect of the evidence introduced at trial; (2) whether the judge mitigated the prejudicial effect through proper limiting instructions; (3) whether the challenged evidence was cumulative of other admissible evidence, thereby reducing the risk of any additional prejudicial effect; and (4) whether the challenged evidence was so similar to the charged offense as to increase the risk of propensity reasoning by the jury" (alterations omitted). Commonwealth v. West, 487 Mass. 794, 807 (2021), quoting Peno, supra.

At trial, Chakoutis testified that she had a romantic cohabitation relationship with the defendant for more than two months, and that she amicably terminated the relationship on August 1, 2016, the day before the victim's death. Over the defendant's objection, text messages between the defendant and Chakoutis were admitted in evidence. In text messages during May and June, the defendant expressed love for Chakoutis, made limited references to sexual activity with her, and expressed an intent to stay in a relationship with her for a "long time." Text messages from August 1 corroborated Chakoutis' account of the end of the relationship. On appeal, the defendant challenges only the admission of the text messages between himself and Chakoutis expressing love, referencing sex, and discussing future plans; the defendant does not challenge the admission of Chakoutis's direct testimony regarding her relationship with the defendant.

We conclude that the admission of the relationship-related text messages between the defendant and Chakoutis was not an abuse of discretion, where there was little risk of unfair prejudice outweighing the probative value of these text messages in establishing the defendant's state of mind and relationship with the victim shortly before the killing. First, the text messages, although corroborative and in the defendant's own words, were cumulative of other admissible evidence of the defendant's own infidelity with Chakoutis and posed little risk of additional prejudicial effect: Chakoutis directly testified that she had a sexual and romantic cohabitation relationship with the defendant for more than two months and that she amicably terminated the relationship the day before the killing. See West, 487 Mass. at 807. Moreover, the evidence of the defendant's own infidelity and apparently happy romantic relationship was not similar to the charged offenses of murder and violation of a restraining order, such that there was little to no risk of propensity reasoning by the jury. Id. Last, the trial judge carefully considered the probative value and risk of prejudicial effect of each of a large number of text messages between the defendant and Chakoutis in the course of their relationship, excluding all but eleven messages that fairly represented the entire corpus without excess or salaciousness.

Similarly, we find no abuse of discretion in the admission over the defendant's objection of a letter he wrote to Chakoutis in June 2019, approximately three years after the killing. In the letter, the defendant blamed Chakoutis for the loss of his family, his freedom, and the victim. The defendant wrote that he believed that it was Chakoutis' former boyfriend, Joe Kerwin, who "called [him]" after she gave the defendant's telephone number to Kerwin. This evidence was consistent with the Commonwealth's theory that the defendant never believed the Binky call came from the victim's boyfriend and that he had premeditated the murder of the victim over several weeks before the call ever occurred. Consequently, it also undermined the defendant's heat of passion defense, wherein he claimed that he argued with the victim over his belief that her boyfriend made the Binky call and strangled her after she grabbed his chest and mouth. Although the three-year delay between the killing and the time the defendant wrote the letter limited the relevance of this evidence as to his state of mind at the time of the crime, the risk of unfair prejudice outweighing probative value was minimal where the letter was cumulative of the properly admitted testimony by Chakoutis and the related text message establishing that the defendant believed the caller was Kerwin on the night of the killing. See West, 487 Mass. at 807

For those reasons, we find no abuse of discretion in the admission of either the defendant's text messages or his letter to Chakoutis.

d. Cross-examination of the defendant.

The defendant claims that the judge committed reversible error in overruling his objections to three improper questions posed to him by the prosecutor during cross-examination. Specifically, the defendant argues that the prosecutor's first question, noting that the defendant did not mention Chakoutis during his testimony on direct examination, improperly shifted the burden of proof to the defendant, and that two subsequent questions referencing the defendant's relationship with Chakoutis were humiliations with no valid evidentiary purpose. Because the defendant timely objected, we review the claims of burden shifting and excessive personal attacks on the defendant for prejudicial error. Commonwealth v. Fernandes, 487 Mass. 770, 790-791 (2021), cert, denied, 142 S.Ct. 831 (2022). "An error is nonprejudicial only if we are convinced that the error did not influence the jury, or had but very slight effect" (quotations omitted). Peno, 485 Mass. at 399, quoting Commonwealth v. Vinnie, 428 Mass. 161, 163, cert, denied, 525 U.S. 1007 (1998) .

The prosecutor began his cross-examination of the defendant with the question: "One person we didn't hear about at all during the course of your direct examination, was Jean Chakoutis; is that correct?" The defendant's objection to the question was overruled, and he answered, "Yes." After intervening questions about the defendant's relationship with Chakoutis to which the defendant did not object, the prosecutor asked, "So, you moved in with her, you had sex with her, you told her that you loved her, and that didn't make [Chakoutis] think that you were starting a new life with her?" The defendant's objection was overruled, and he answered, "No." The defendant then testified that he was angry that the victim was dating other people. The prosecutor asked, "And do you realize what a giant hypocrite that makes you, this whole nine months that -- leading up to the time you killed your wife?" The defendant's objection was overruled, and he answered, "A hypocrite, how?"¹¹

11 The prosecutor responded to the defendant's question by rearticulating the prior question: "You were telling somebody else that you loved them, yet you were angry with your wife because you thought she was seeing other people. That makes you [a] hypocrite; right?" The defendant did not object to this rearticulated question, and answered that he "was angry with her because of who she was seeing."

The first question, regarding the absence of testimony about the defendant's relationship with Chakoutis, posed little, if any, "implication by [the] prosecutor that [the] defendant failed to meet a purported burden at trial" (emphasis omitted). See Commonwealth v. Pierre, 486 Mass. 418, 435 (2020). This simple "yes or no" question did not directly require the defendant to explain a testimonial choice, and merely confirmed what had not been said. See, e.g., Commonwealth v. Ivy, 55 Mass.App.Ct. 851, 859 (2002) (no burden shifted by question why defendant had not produced sign-in log for night of assault). Moreover, the absence of this information in the defendant's testimony was probative to the extent that it contradicted the defendant's claim that on the night of the killing, he was a loving husband who expected to reunite with the victim until the Binky call occurred. Where the jury received precharge instructions that the Commonwealth bore the burden of proof and that the attorneys' questions were not evidence, the judge did not err in overruling the defendant's objection to the first question.

As to the second question, regarding a new life with Chakoutis, we conclude that the prosecutor did not "go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate." Commonwealth v. Johnson, 431 Mass. 535, 540 (2000), quoting Alford v. United States, 282 U.S. 687, 694 (1931). Like the first question, the second question was probative to contradict the defendant's claim of a loving relationship with the victim and mutual plans for a future with her in California, and cumulative of extensive evidence of the defendant's prior sexual and romantic relationship with Chakoutis extending to the day before the killing. There was no error.

To the extent that the third question contained excessive hyperbole regarding the defendant's character as a "giant hypocrite" that crossed the boundary of proper cross-examination, any error was not prejudicial. See Johnson, 431 Mass. at 540. No more than a slight effect was possible where the jury received extensive, properly admitted evidence of the defendant's romantic relationship with Chakoutis, supporting a reasonable conclusion that the defendant's anger at the victim's dating relationship and accusations of infidelity were hypocritical. See Fernandes, 487 Mass. at 792, quoting Commonwealth v. Salazar, 481 Mass. 105, 118 (2018) (prosecutor's "brief, isolated statement . . . was not egregious enough to infect the whole of the trial"). For these reasons, we conclude that the Commonwealth's cross-examination of the defendant did not result in reversible error.

e. Review under G. L. c. 278, § 33E .

The defendant asks us to exercise our authority under § 33E to reduce or set aside his conviction of murder in the first degree, on the ground that the claimed errors addressed supra, combined with the weight of the evidence, produced a verdict that was not consonant with justice. As we have already noted, the defendant fails to show reversible error with respect to exclusion of his recorded interview, the scope of voir dire, the questions posed to him during cross-examination, or the admission of his communications with Chakoutis. Where we agree with the Commonwealth that the limited evidence offered in support of the defendant's reasonable provocation defense was substantially contradicted by contrary evidence of deliberate premeditation, we decline to order a new trial or reduce the conviction to manslaughter.

"Reasonable provocation is provocation [deemed adequate in law] by the person killed . . . that would be likely to produce such a state of passion, anger, fear, fright, or nervous excitement in a reasonable person as would overwhelm his capacity for reflection or restraint and did actually produce such a state of mind in the defendant" (alteration in original). Commonwealth v. Yat Fung Ng, 489 Mass. 242, 257 (2022), quoting Commonwealth v. Brea, 488 Mass. 150, 156 (2021) . Neither mere quarreling, nor discovery of spousal infidelity over an extended period, constitutes legally adequate provocation to prove heat of passion upon reasonable provocation. See Commonwealth v. Vatcher, 438 Mass. 584, 588-589 (2003) (insults or verbal arguments insufficient); Commonwealth v. Rodriguez, 431 Mass. 804, 812 (2000) (discovery of spousal infidelity must be sudden) .¹² Thus, where the evidence clearly established that the defendant knew of the victim's relationship with Scott McHugh for weeks before the Binky call and killing, only the victim's purported physical assault on the defendant could arguably have constituted reasonable provocation by sudden combat.¹³

12 While it is not necessary here to determine whether the sudden revelation of infidelity should continue to be considered provocation deemed adequate in law, we express serious doubt about the ongoing viability of this legal principle, where it rests on the outmoded perception that "[t]he killing of a spouse (usually a wife) by a spouse (usually a husband)" is "an acceptable response to the discovery of infidelity," thereby "reinforc[ing] male irrationality as normal, and legitim[izing] the view of women as property" (quotation and citations omitted). See Commonwealth v. Richards, 485 Mass. 896, 923 (2020) (Cypher, J., concurring).

13 "Sudden combat is a form of reasonable provocation" that "involves a sudden assault by the person killed . . . and the defendant upon each other" (quotation omitted). Yat Fung Ng, 489 Mass. at 266, quoting Brea, 488 Mass. at 157.

Even if credited by the jury, the defendant's description of events provided little evidence that this physical assault posed any threat of serious harm to him, or that the assault would have rendered a reasonable person incapable of reflection or restraint for the period of time it took to strangle the victim to death.^[14]'^[15] Unlike a killing by knife or gun, which could be consistent with death occurring as a result of single, impulsive blow, a manual strangulation requires sustained force over a prolonged period of time to accomplish death, during which an objectively reasonable person would likely have "cooled off." See Felix, 476 Mass. at 759 ("the time required to strangle the victim . . . supported a finding of deliberate premeditation inconsistent with sudden provocation"). Moreover, there was substantial evidence of deliberate premeditation in the months and weeks leading up to the killing, as the defendant sent text messages repeatedly threatening the victim and her boyfriend, and warned his daughter that he wanted to "go to jail" and to "watch what [he] do[es]." In this context, the weight of the evidence supported the defendant's conviction on a theory of deliberation premeditation.

[14] "'[p]hysical contact between a defendant and a victim is not always sufficient to warrant a manslaughter instruction, even when the victim initiated the contact.' This may be especially true where the defendant outweighs and is physically far more powerful than the victim, and the defendant uses . . . excessive force" (citation omitted). Commonwealth v. Felix, 476 Mass. 750, 757 (2017), quoting Commonwealth v. Walden, 380 Mass. 724, 727 (1980).

[15] The victim was 149 pounds; the defendant weighed more than twice her weight, approximately 350 pounds at the time of the killing. The defendant sustained no injuries to his face or mouth from this purported physical attack and only a small, fingernail-sized abrasion of unknown origin on his chest. The victim's hands showed no signs of defensive wounds or injuries consistent with forcing the defendant's mouth apart. None of the family members sleeping nearby heard any argument or physical altercation around the time of killing.

After a thorough review of the record, we conclude that there is no other reason to exercise our authority under § 33E to grant a new trial or reduce or set aside the verdict of murder in the first degree.

Judgments affirmed.