years old) is a convicted murderer who has made headlines by
fighting to undergo gender reassigment while in prison. He
changed his name to Michelle Kosilek in 1993, and lives
his life as a woman in an all-male prison.
In 1990, he
killed his wife Cheryl. He is serving a life sentence in
He has been
diagnosed with a gender identity disorder. After suing the
government in 2000 for violation of the Eighth Amendment, he has
undergone female hormone therapy, laser hair therapy and
psychotherapy. He wears women's clothing in prison.
Convicted killer sues state for free sex
Suit argues that denying operation
constitutes cruel, unusual punishment
Associated Press - May 31, 2006
BOSTON - A man
serving a life sentence for the
murder of his wife is asking a
federal judge to order the state to
pay for a sex-change operation for
him, saying that denying him the
surgery amounts to cruel and unusual
testified Tuesday that he believes
Robert Kosilek will kill himself if
state correction officials refuse to
allow the surgery and Kosilek is
unable to complete his
transformation into a woman.
Kosilek, 57, was
convicted of strangling his wife,
Cheryl, in 1990.
In 2002, U.S.
District Judge Mark Wolf ruled
that Kosilek — who now goes by
the name of Michelle — was
entitled to treatment for gender
identity disorder, but stopped
short of ordering the state to
pay for the sex-change operation.
Kosilek has received
psychotherapy, female hormone
treatments and laser hair
removal. Kosilek, who wears his
hair long and tucked behind his
ears, has developed larger
breasts since beginning hormone
Kosilek sued the
Department of Correction for the
second time last year, saying
that numerous psychiatrists who
had examined him — including two
of the DOC's own experts — had
determined that a sex-change
operation is "medically
"We ask that
gender identity disorder be
treated like any other medical
condition," said Kosilek's
attorney, Frances Cohen.
quietly in court Tuesday as his
attorney and an attorney for the
state Department of Correction
made opening statements in a
trial that is expected to last
up to two weeks. Kosilek opted
to have the case heard by Wolf
instead of a jury.
During the 2002
trial, Kosilek testified that he
has suffered from gender
identity disorder since the age
of 3. He said he had twice tried
to kill himself and also tried
to castrate himself.
attorney, Richard McFarland,
said that DOC Commissioner
Kathleen Dennehy made the
decision to deny surgery for
Kosilek based on "significant
safety and security concerns."
men’s, women’s prisons
correction officials fear that
if Kosilek has the surgery and
returns — as a woman — to the
all-male, medium-security prison
in Norfolk where he is now
serving his sentence, he could
be a target for assault by male
inmates. If he is transferred to
the women's prison in Framingham,
there are concerns he will pose
a risk to female inmates there,
will testify that Kosilek
functions "at a very high level"
and that a sex-change operation
is not medically necessary,
Neither side gave an estimate on the costs of the sex-change operation. Kosilek's attorney told Wolf she believes the DOC could argue that the surgery should be covered by the DOC's provider under its overall mental health contract.
Dr. George Richard Brown, a psychiatrist who said he has treated more than 1,000 patients with gender identity disorder since 1979, acknowledged that Kosilek's depression and anxiety have improved since he began receiving female hormones. But he said that improvement was based on Kosilek's sense of hope that he will be allowed to become a woman.
"I believe that she would kill herself," Brown said, when asked by Kosilek's attorney what would happen if Kosilek does not have a sex-change operation.
"I don't believe she would consider life worth living without hope for completion of her treatment plan," he said.
State to Pay for His Surgery to
Become a Woman
A convicted murderer in Boston wants the
state of Massachusetts to pay for his sex-change operation,
saying that denying him the operation would be cruel and unusual
By Linda Orlando - Buzzle.com
Robert Kosilek was sentenced to life in prison without parole
nine years ago for murdering his wife, Sheryl. He wrapped a wire
around her neck three times and strangled her, dumped her in the
back of car, and left her at a mall. At the time he killed her,
he sported a beard and dressed and acted like a man.
When Kosilek was tried for her killing, he came to court dressed
in women’s clothing, with his fingernails long and painted.
After his conviction, Robert Kosilek changed his name legally to
Michelle. Now Kosilek is suing the state of Massachusetts,
demanding that taxpayers fund his sex-change operation.
A state judge ruled earlier that Kosilek is entitled to
treatment for a condition called "gender identity disorder," and
the court granted the 57-year old Kosilek the right to have the
state pay for his female hormone treatments and laser hair
Kosilek claims that his condition is equivalent to "biological
claustrophobia," and he says that the universally accepted
treatment for his disorder involves psychotherapy, hormone
therapy, and finally "surgical correction of the offending
John Moses, the Assistant District Attorney who prosecuted
Kosilek, says that prisoners are not supposed to be sexual in
the prison, so he is surprised by Kosilek’s lawsuit. As for the
surgery being cruel and unusual punishment, Moses is adamant
that nobody is punishing Kosilek. "He is doing life without
parole for murder. The fact that he is serving a sentence,
anybody serving a sentence is deprived of certain choices in his
life. He was 41 years old when he killed Sheryl Kosilek. He
didn't try to get a sex change operation at that time. Now he's
53 years of age, and he wants the state to pay for that?"
There are currently 12 prisoners in federal prisons who have
been diagnosed with gender identity disorder, and four are
receiving hormone treatments. So far their medical care and
lawsuits for these conditions have cost taxpayers tens of
thousands of dollars. Sex change operations for all of them—operations
that insurance companies won’t even pay for—would cost at least
a quarter of a million dollars.
If Kosilek is granted the operation, the results would cause a
nightmare for prison officials, who will then have to decide
whether to house him in a men’s prison or a women’s prison, and
either situation would certainly disrupt the prison and cause
problems for other inmates as well as Kosilek.
Kosilek claims that the Corrections Department is violating his
civil rights and subjecting him to cruel and unusual punishment
by refusing to provide him the treatment he deserves. He says
that as a result of being denied treatment, he suffers constant
depression, anxiety, and a high level of stress.
A psychiatrist testified that "Michelle" is likely to commit
suicide if he doesn’t get the operation. Perhaps the state could
save a lot of money and time by just letting him do that. Or
maybe they could just treat him the same way he treated his wife—wrap
a wire around his neck three times, dump him in a car, and leave
him at a mall.
By Buzzle Staff and Agencies
Transgendered inmates push for state-funded sex-change surgery
BOSTON (AP) — Wearing lipstick, a scooped-neck sweater and
nearly waist-length hair, the witness cried while describing
what it feels like to be a woman trapped inside a man's body.
"The greatest loss is the dying I do inside a little bit every
day," said Michelle Kosilek, an inmate who is serving a life
sentence for murder.
Michelle Kosilek was Robert Kosilek when he was convicted in the
killing of his wife. In 1993, while in prison, he legally
changed his name to Michelle. Since then, Kosilek has been
fighting with prison officials to complete his transformation
into a woman.
Kosilek, 57, wants the
state Department of Correction to pay for a sex-change operation.
After two lawsuits and two trials, the decision now rests with a
federal court judge.
Kosilek's case has become
fodder for radio talk shows, where the topic of whether the
state should pay for a sex-change operation for a convicted
murderer often attracts outraged callers.
The case is also being
closely watched by attorneys and advocates across the country
who say Kosilek is an example of the poor treatment
transgendered inmates receive in prison.
Courts in several other
states have ordered prison systems to allow transgendered
inmates to receive psychotherapy and, in some cases, hormone
shots. But no inmate in the country has ever succeeded in
getting a court to order a sex-change operation, according to
"People often have a knee-jerk
reaction that public money shouldn't be spent on this," said
Shannon Minter, a board member of the Transgender Law and Policy
"If people are not
treated, they suffer tremendously," said Minter. "It's just as
cruel to withhold treatment for gender identity disorder as it
is to withhold treatment for any other medical issue."
Some states allow inmates
to continue hormone treatments if they are already on hormones
when they begin their sentences. But most do not allow inmates
to initiate hormone therapy while in prison, and many states do
not have any written policy for the treatment of transgendered
inmates, said Cole Thaler, a transgender-rights attorney for
Lambda Legal, a national advocacy group for homosexual, bisexual
and transgendered people.
"The majority of states
don't seem to have formal or informal policies or practices,"
Inmates in several other
states have sued prison officials for sex-change operations.
Like Kosilek, they argued that gender identity disorder is a
serious illness that can lead to severe anxiety, depression,
suicide attempts and self-castration. They argue that treatment
for their condition is a "medical necessity" and denying it
would violate the Eighth Amendment's prohibition against cruel
and unusual punishment.
Those arguments have
fueled the anger of some taxpayer groups and politicians.
"It's the most absurd
thing I've ever heard of," said state Rep. Mark Gundrum of
Wisconsin, who helped author a state law that bars the
Department of Correction from using tax dollars for hormone
therapy or sex-reassignment surgery.
"I think the founders of
our country — when they wrote that clause — they were
envisioning preventing people from being burned in oil or burned
at the stake, not simply refusing to use taxpayer dollars to
allow inmates to get a sex change or breast implants or whatever
else," Gundrum said.
The "Inmate Sex Change
Prevention Act" was introduced after Wisconsin inmate Scott
Konitzer filed a lawsuit seeking a sex-change operation. The law
took effect in January, but is being challenged by the American
Civil Liberties Union and Lambda Legal.
In Colorado, inmate
Christopher "Kitty" Grey, who is serving 16 years to life for
molesting an 8-year-old girl, is suing the state to provide him
with a gender specialist he hopes will determine that he needs a
sex-change operation. The state Department of Corrections is
already giving Grey female hormones.
"For all intents and
purposes, I am a woman in a man's prison," Grey told the
Denver Post in an interview earlier this year. "That's like
putting a cat in a dog kennel," Grey said.
Colorado officials say
that providing a sex-change operation for Grey or any of the
other two dozen transgendered inmates in the state's prisons
would create security concerns.
Dr. James Michaud, chief
of mental health for the Colorado DOC, said he does not believe
sex-change operations are "medically necessary."
"There are certainly
people who are transgendered who want surgery and who want to
appear different, but I don't think that makes it medically
necessary," said Michaud.
In addition to the cost —
estimates for sex-change operations are in the $10,000 to
$20,000 range — prison officials cite the safety risks of
housing a male inmate who has been transformed into a female.
During Kosilek's trial,
Massachusetts Correction Commissioner Kathleen Dennehy said that
if Kosilek has the surgery, prison officials believe Kosilek
could end up being a target of sexual assault in prison.
"The safety and security
concerns are enormous," Dennehy testified.
In Massachusetts, four of
the 12 inmates diagnosed with gender identity disorder are
receiving hormone shots.
Kosilek has been
receiving hormone therapy since a federal judge ruled in 2002
that he was entitled to some treatment for gender identity
disorder. Although Judge Mark Wolf did not order a specific
treatment plan, he ruled that Kosilek had proven he has a
serious medical condition that had not been adequately treated.
After Wolf's ruling, the
corrections department allowed Kosilek to receive female
hormones and laser hair removal. He was also given access to
female undergarments and some makeup.
During testimony this
spring in his second lawsuit, Kosilek said the female hormones
and other treatments have not been enough to relieve his
suffering and said he would likely commit suicide if he does not
get the surgery.
Such talk infuriates
state Sen. Scott Brown, who filed legislation seeking to ban
sex-change operations for inmates in 1998. The legislation died
Brown points out that
most private health insurers do not cover sex-change operations,
and says taxpayers should not have to pay for such "elective"
surgery for inmates.
"I just think it would be
deemed a luxury for him to have that operation. He is in there
because he murdered his wife," Brown said. "There are no
luxuries that are supposed to be available."
But advocates for
transgendered inmates say that in some cases, sex reassignment
surgery is a medical necessity, not a luxury.
Dr. George Brown, a
psychiatry professor at East Tennessee State University who has
treated hundreds of transgendered people, testified during
Kosilek's trial that he believes Kosilek will commit suicide if
he does not get a sex-change operation. Kosilek said he has
twice tried to kill himself and once tried to castrate himself.
"For severe gender-identity
disorder, after that person has already been through other less
invasive treatments like psychotherapy, hormones, electrolysis,
group support — there's nowhere else to go," Brown said in a
recent interview. "At a certain point, there are no other
treatments that actually work."
Demand Draws Scrutiny
Murderer's Bid To Have
The State Pay For His Sex Change Is Bogged Down In Federal Court
BOSTON, June 26, 2007 -
trial that opened more than a year ago has become bogged down in
Boston federal court. There have been hundreds of hours of
testimony from witnesses, including 10 medical specialists paid
tens of thousands of dollars. The judge himself even hired an
expert to help him make sense of it all.
The question at the
center of the case: Should a murderer serving life in prison get
a sex-change operation at taxpayer expense?
The case of Michelle —
formerly Robert — Kosilek is being closely watched across the
country by advocates for other inmates who want to undergo a sex
change. Transgender inmates in other states have sued prison
officials, and not one has succeeded in persuading a judge to
order a sex-change operation.
Correction Department is vigorously fighting Kosilek's request
for surgery, saying it would create a security nightmare and
make Kosilek a target for sexual assault.
An Associated Press
review of the case, including figures obtained through Freedom
of Information Act requests and interviews, found that the
Correction Department and its outside health care provider have
spent more than $52,000 on experts to testify about an operation
that would cost about $20,000.
The duration and expense
of the case have outraged some lawmakers who insist that
taxpayers should not have to pay for inmates to have surgery
that most private insurers reject as elective.
"They are prisoners. They
are there because they've broken the law," said Republican state
Sen. Scott Brown, who unsuccessfully introduced a bill to ban
sex-change surgery for inmates. "Other folks, people who want to
get these types of surgeries, they have to go through their
insurance carrier or save up for it and do it independently. Yet
if you are in prison, you can do it for nothing? That doesn't
make a lot of sense."
But advocates say in some
cases — such as that of Kosilek, who has twice attempted suicide
— sex-change surgery is as much a medical necessity as treatment
for diabetes or high blood pressure.
"The duty belongs to the
prison to figure out how to fulfill its constitutional
obligations to both provide adequate medical care and provide a
fundamental security for all inmates," said Cole Thaler, an
attorney with Lambda Legal, a gay-and transgender-rights group.
Kosilek, 58, was
convicted of strangling his wife in 1990. He claimed he killed
her in self-defense after she spilled boiling tea on his
Robert Kosilek legally
changed his name to Michelle in 1993, and has sued the
Correction Department twice, arguing that its refusal to allow a
sex-change operation violates the Eighth Amendment protection
against cruel and unusual punishment.
In 2002, U.S. District
Judge Mark Wolf ruled that Kosilek was entitled to medical
treatment for gender identity disorder, but stopped short of
ordering the surgery. Kosilek sued again in 2005, arguing that
the hormone treatments, laser hair removal and psychotherapy she
has received since Wolf's ruling have not relieved her anxiety
"I would not want to
continue existing like this," Kosilek testified.
Kosilek's second trial,
which began in May 2006, has featured expert testimony from 10
doctors, psychiatrists and psychotherapists. Wolf has not
indicated when he will rule.
The Correction Department
has spent about $33,000 on two experts it retained to evaluate
Kosilek. Both Cynthia Osborne, a Baltimore psychotherapist, and
Chester Schmidt, a psychiatry professor at Johns Hopkins
University, said Kosilek does not need the surgery. Schmidt's
fee alone was $350 per hour.
Two other doctors
retained and paid for by the department's outside health
provider, the University of Massachusetts Correctional Health
Program, at a cost of just under $19,000 said they believe the
surgery is medically necessary for Kosilek. Two other doctors
who work for the health provider agreed with that.
In addition, two
psychiatrists who testified for Kosilek recommended the surgery.
A Boston law firm representing Kosilek for free paid for those
experts but would not disclose the cost.
In Wisconsin, five
inmates sued after the Legislature passed a law that bars
Correction Department funding for hormone treatments or sex-change
surgery. The case is expected to go to trial in October.
Those who argue against
allowing the surgery say it could open the floodgates to other
inmates who want sex-change operations or other treatments
In Massachusetts, 10
inmates have been diagnosed with gender identity disorder and
are receiving hormone treatments. Two other inmates besides
Kosilek have asked for sex-change surgery.
Corrections officials say
their decision to deny the surgery has nothing to do with costs
or the politics of crime. They cite the testimony of their
experts and Kosilek herself that her feelings of depression have
diminished since she began taking hormones.
Kathleen Dennehy testified that allowing Kosilek to complete the
transformation into a woman would present a security problem.
Whether she stays in a male prison or is transferred to a female
prison, she could become a target for sexual assault, Dennehy
Dennehy also said prison
officials cannot be influenced by Kosilek's talk of suicide.
"The department does not
negotiate or respond to threats of harm or suicide in an effort
to barter," she said. "You couldn't run a prison with that kind
of leveraging going on."
Com. v. Kosilek
Homicide. Practice, Criminal, Instructions to
jury, Assistance of counsel, Argument by prosecutor, Capital case.
Intent. Mental Impairment. Intoxication. Evidence, Prior
inconsistent statement. Self-Defense.
LYNCH, J. The defendant, Robert Kosilek, was
convicted of murder in the first degree under theories of
premeditated and deliberate murder and extreme atrocity or cruelty
for the death of his wife, Cheryl Kosilek. On appeal, the
defendant contends that his conviction must be reversed
principally because of: (1) errors in jury instructions; (2)
limitation of cross-examination on the issue of self-defense; and
(3) improper statements in the prosecutor's closing argument. The
defendant also challenges the Judge's denial of his motion for a
required finding of not guilty, and alleges ineffective assistance
of trial counsel. We have considered these arguments and have
reviewed the entire record pursuant to G. L. c. 278, § 33E (1994
ed.). We affirm the conviction.
We review the facts in the light most favorable
to the Commonwealth. Commonwealth v. Morgan, 422 Mass. 373, 374,
663 N.E.2d 247 (1996). The victim's body was discovered in the
back seat of her automobile in a shopping mall parking lot in
North Attleborough on the evening of Sunday, May 20, 1990, after
the mall had closed for the evening. She had been strangled with a
rope and a wire.
A taxicab driver testified that he picked up
the defendant from the same mall on the afternoon of May 20 and
drove him to a store located about one-half mile from the
defendant's house in Mansfield. That evening, police in North
Attleborough received a telephone call from the defendant stating
that his wife had not come home that evening and asking whether
there had been any report of an automobile accident in which she
might have been involved. The police told the defendant that they
had located his wife's automobile, and they asked him to come to
the police station, which he agreed to do. At the defendant's
request, an officer was sent to pick him up and bring him to the
station. At the station, Lieutenant Michael Gould informed the
defendant that "a body was found in the back seat" of his wife's
automobile. Gould questioned the defendant about his actions and
the victim's actions during the day. The defendant stated that the
victim had gone to work for part of the day and intended to stop
at the mall on the way home; he also said that he had spent the
day working around the house.
The following day, May 21, 1990, the defendant
was again asked to come to the police station to speak with Gould.
During the interview, Gould advised the defendant that he was a
suspect and informed him of his Miranda rights. Gould told the
defendant that the police had spoken with the victim's son,
Timothy McCaul, who had lived with the defendant and the victim.
McCaul told the police that he had been working during the day of
the murder, that he called home at about 5 P.M. to ask for a ride
home, and that no one answered the telephone. The defendant noted
that Timothy often dialed wrong numbers, and he suggested that he
may have been in the shower at the time of the call and failed to
hear it. During this second interview with police, the defendant
excused himself to go downstairs for cigarettes. Once downstairs,
the defendant called up to the officers that he was going to get a
lawyer, and left.
On May 22, 1990, shortly after midnight, the
defendant was involved in an automobile accident in Bedford. When
a police officer arrived at the scene, he observed the defendant,
dressed in women's clothing, seated in his vehicle, which had
crashed into a stop sign and some shrubs. The officer administered
field sobriety tests, determined that the defendant was not
intoxicated, and called a taxi to drive the defendant home.
Two days later, on the afternoon of May 24,
1990, police in New Rochelle, New York, stopped the defendant for
speeding. After the officer observed a bottle of vodka, two-thirds
full, and two cans of beer in the automobile, and smelled alcohol
on the defendant's breath, he arrested the defendant for driving
while intoxicated and brought him to the police station. At some
point, the defendant remarked to the arresting officer, "You would
be drunk too if the police thought you killed your wife." Later,
at the New Rochelle police station, the defendant stated, "Look, I
had a fifteen year old son and a wife. I can't call my wife. I
murdered my wife. Now, I need to call a psychiatrist now." The
defendant was taken to the psychiatric unit of a New York hospital
and subsequently was brought back to Massachusetts by the
Massachusetts State police.
About two and one-half years later, in October
of 1992, the defendant gave a series of recorded interviews to a
television news reporter. An audiotape recording of one of the
interview sessions was played for the jury. During the interview,
the defendant stated that: on the day of the murder, he and the
victim had been in an argument; the victim threw boiling tea into
the defendant's face; he then knocked the victim down; she grabbed
a butcher knife and chased the defendant into another room,
threatening to kill him; he picked up a piece of wire that had
been on a table; and this was all he was able to recall until he
woke up days later in the hospital. The defendant stated in the
interview that he "probably, because of the trauma of it . . .
went into a black out at that moment." He also said, "Apparently,
I did take her life. It was probably in self-defense."
2. Jury instructions.
The defendant points to a number of mistakes,
omissions, or misstatements in the jury charge which, he contends,
created a substantial likelihood of a miscarriage of Justice,
either in whole or in part.
a. Deliberate premeditation.
The instructions for deliberate and
premeditated murder (the full text of which is set out in the
margin ) contained two mistakes. First, in the course of
explaining the concept of deliberation, the Judge included the
"Deliberation may be a matter of days, hours,
or indeed, seconds. First the deliberation and premeditation, then
the decision to kill, and lastly, the killing in furtherance of
that decision. All of this may occur within a few seconds. However,
it does not exclude action that is taken so quickly that there is
no time to think about the action and then determine to do it " (emphasis
The emphasized portion of the statement is
incorrect as a matter of law. The Commonwealth does not argue
otherwise. Cf. Commonwealth v. Callahan, 401 Mass. 627, 633, 519
N.E.2d 245 (1988) (deliberate premeditation "excludes action which
is taken so spontaneously that there is no time to think"). There
was no objection to the instruction.
When the erroneous statement is read in the
context of the entire instruction, it is clear that the mistake
was not prejudicial. The error is sandwiched between accurate
statements of the law regarding premeditation and deliberation. In
particular, the Judge followed the error with a sentence stating
in part that "the Commonwealth must show that the defendant's
resolve to kill was the product of cool reflection." This
statement, and others like it, substantially corrected any
misconception which may have arisen in the minds of the jurors.
Indeed, if the transcript is correct, the error was not even
noticed by counsel. Taken as a whole, then, the instruction did
not create a substantial likelihood of a miscarriage of Justice.
See Commonwealth v. Campbell, 378 Mass. 680, 706, 393 N.E.2d 820
(1979); Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 38-39, 471 N.E.2d
The second mistake in the premeditation
instruction occurred in the course of the Judge's Discussion of
the effect of any mental impairment on the defendant's ability
deliberately to premeditate. The Judge stated, in part:
"You should weigh the defendant's mental
impairment, if any, in evaluating any evidence that he formed a
plan to kill the victim after deliberation and reflection. The
Commonwealth does not have to prove that the defendant was
entirely free of mental impairment, but the Commonwealth does have
to prove that the defendant was so impaired that he lost the
ability to deliberately premeditate " (emphasis added).
Once again, the emphasized portion of the
statement is incorrect as a matter of law. See Commonwealth v.
Meinholz, 420 Mass. 633, 637-638, 651 N.E.2d 385 (1995). At trial,
both the Commonwealth and defense counsel brought this to the
Judge's attention, and the Judge provided a supplementary
instruction in an attempt to cure the error. The additional
instruction -- to which the defendant did not object -- did not
refer specifically to impairment or intoxication.
The Commonwealth contends that any error was
cured by the instructions taken as a whole, which set out several
times the jury's requirement to consider the effect of any mental
impairment. We agree. "Where there is evidence of the effects of
the consumption of drugs (or alcohol) that, if believed, would be
relevant to a defendant's state of mind or knowledge, then a
simple instruction is required." Commonwealth v. Morgan, 422 Mass.
373, 377, 663 N.E.2d 247 (1996), citing Commonwealth v. Sires, 413
Mass. 292, 300-301, 596 N.E.2d 1018 (1992). Here, the instructions
on mental impairment as a whole satisfied these requirements. As
with the earlier error, the misstatement is preceded and followed
by accurate statements of the controlling law on the issue of
mental impairment. Furthermore, the Judge's supplementary
instruction on the Commonwealth's burden served to dissipate any
lingering confusion resulting from the misstatement. We perceive
no prejudice to the defendant that would result in a miscarriage
of Justice. See Commonwealth v. Giguere, 420 Mass. 226, 232, 648
N.E.2d 1279 (1995).
b. Extreme atrocity or cruelty.
The Judge gave the instruction on extreme
atrocity or cruelty that we disapproved in Commonwealth v. Hunter,
416 Mass. 831, 626 N.E.2d 873 (1994). The defendant did not object.
We review the instruction only to see whether it caused a
substantial likelihood of a miscarriage of Justice. See
Commonwealth v. Semedo, 422 Mass. 716, 726, 665 N.E.2d 638 (1996).
Where, as here, the jury found the defendant guilty on the theory
of premeditated and deliberate murder, as well as extreme atrocity
or cruelty, it is highly unlikely that the defendant was
prejudiced by the instruction. See Commonwealth v. Blackwell, 422
Mass. 294, 300, 661 N.E.2d 1330 (1996) (Hunter error not
prejudicial where jury clearly found defendant guilty on another
theory of murder).
c. Voluntariness-humane practice.
Several inculpatory statements made by the
defendant were admitted in evidence. Motions to suppress the
statements were denied. The defendant does not appeal from the
denial of these motions, but instead argues that the instruction
on the voluntariness of these statements was error because it
failed to enumerate the factors to be considered in making this
determination, especially the effect of intoxication. The
defendant did not object to this aspect of the instruction. We
conclude that the instruction was sufficient in light of the
evidence at trial. "Although the instruction appropriately might
have contained more detail, it was correct." Commonwealth v.
Grenier, 415 Mass. 680, 688, 615 N.E.2d 922 (1993). See
Commonwealth v. Mello, 420 Mass. 375, 385, 649 N.E.2d 1106 (1995).
We discern no substantial likelihood of a miscarriage of Justice
arising from the charge on voluntariness.
d. Prior inconsistent statements.
During his instructions on the evidentiary
weight of prior inconsistent statements, the Judge concluded an
otherwise accurate description of the law by saying, "The present
statement is relevant only to the witness's credibility, and you
may not take it as proof of any fact contained in it" (emphasis
added). The instruction would be accurate if the word "prior" is
substituted for the word "present." See Commonwealth v. Pierce,
419 Mass. 28, 39-41, 642 N.E.2d 579 (1994). See generally P.J.
Liacos, Massachusetts Evidence § 6.6.2 (c), at 282-286 (6th ed.
1994). Even as the record indicates, the mistake is relatively
innocuous and there was no objection.
Furthermore, the Commonwealth notes that there
was no evidence of any prior statements that were inconsistent
with testimony at trial. The defendant offers no examples of
actual or potential prejudice as a result of the misstatement. We
conclude that any error in the instruction did not create a
substantial likelihood of a miscarriage of Justice. See
Commonwealth v. Anderson, 396 Mass. 306, 316, 486 N.E.2d 19
e. Cumulative error and ineffective
assistance of counsel.
The defendant argues that, even if none of the
above errors requires reversal separately, the combined effect of
the mistakes was so prejudicial that it created a substantial
likelihood of a miscarriage of Justice. We disagree. The
cumulative error was no more prejudicial than the individual
errors, which had minimal impact. See Commonwealth v. Fuller, 421
Mass. 400, 410-413, 657 N.E.2d 1251 (1995); Commonwealth v. Garcia,
379 Mass. 422, 441-442, 399 N.E.2d 460 (1980).
In the alternative, the defendant asks us to
determine that the trial counsel's failure to object to these
errors constituted ineffective assistance of counsel. "If an error
not objected to by trial counsel does not create a substantial
likelihood of a miscarriage of Justice, see G. L. c. 278, § 32E .
. . a claim of ineffective assistance of counsel with respect to
such error will not succeed, Commonwealth v. Wright, 411 Mass.
678, 681-682, 584 N.E.2d 621 (1992)." Commonwealth v. Waite, 422
Mass. 792, 807, 665 N.E.2d 982 (1996).
3. Evidentiary error.
The defendant claimed that he had been acting
in self-defense. He told a television news reporter (in an
audiotaped interview that was played for the jury) that, on the
day of his wife's death, she had attacked him with a pan of
boiling tea and a large kitchen knife. There was evidence that the
defendant had burns on his hands that were consistent with the
story. In an attempt to develop this theory, defense counsel
sought to cross-examine the victim's son about any arguments he
may have had with his mother, apparently to elicit testimony that
she had reacted violently in some instances. The Commonwealth
objected. At sidebar, defense counsel made an offer of proof. The
Judge sustained the objection, noting that the fact that a mother
may have hit her son while disciplining him was not relevant to
the self-defense issue. The relevant portion of the colloquy is
set out in the margin.
The Judge has broad discretion to determine the
extent of cross-examination, see Commonwealth v. Clarke, 418 Mass.
207, 212, 635 N.E.2d 1197 (1994), and to exclude evidence of
limited probative value, see Commonwealth v. Palmariello, 392 Mass.
126, 137-138, 466 N.E.2d 805 (1984). Evidence of past violent acts
against a third party by the victim is admissible where there is
evidence of "recent, specific instances of the victim's violent
conduct, known to the defendant at the time of the homicide."
Commonwealth v. Fontes, 396 Mass. 733, 735, 488 N.E.2d 760 (1986).
Determining which types of specific acts by the victim are
relevant to the issue of self-defense is a matter "left to the
sound discretion of the Judge." Commonwealth v. Rodriquez, 418
Mass. 1, 6, 633 N.E.2d 1039 (1994). Here, even if the defendant
knew that the victim had used physical force to discipline her son
on specific recent occasions (an assertion not at all clear from
the record), the Judge had discretion to exclude the evidence on
the basis of its limited probative value. There was no error. Cf.
Commonwealth v. Rodriquez, supra.
4. Prosecutorial error.
In his closing statement, the prosecutor
referred to the defendant on several occasions as a "liar" who had
constructed a "cunning charade" to mislead the police. There was
no objection. The defendant argues that the prosecutor improperly
gave his personal opinion of the defendant's guilt and credibility.
See Commonwealth v. Chavis, 415 Mass. 703, 713, 616 N.E.2d 423
(1993); S.J.C. Rule 3:07, Canon 7, DR 7-106 (C) (4), as appearing
in 382 Mass. 787 (1981). But cf. Commonwealth v. Yesilciman, 406
Mass. 736, 745-746, 550 N.E.2d 378 (1990).
It is well established that " prosecutor may
not assert his or her personal opinion as to the credibility of a
witness or the guilt of an accused." Commonwealth v. Chavis, supra
at 713. "However, the prosecutor may comment on evidence developed
at trial and draw inferences from such evidence." Id. In this case
the prosecutor probably crossed the line of fair comment on the
evidence and offered his opinion of the defendant's credibility.
We conclude, however, that, in the context of the Judge's
instructions and the weight of the Commonwealth's case, any error
was not so prejudicial as to create a substantial likelihood of a
miscarriage of Justice. See Commonwealth v. Campbell, 394 Mass.
77, 88 & n.11, 474 N.E.2d 1062 (1985); Commonwealth v. Cameron,
385 Mass. 660, 669-670, 433 N.E.2d 878 (1982); Commonwealth v.
MacDonald, 368 Mass. 395, 400-401, 333 N.E.2d 189 (1975).
5. Sufficiency of evidence.
The defendant argues that there was
insufficient evidence for a guilty finding on either the
premeditated and deliberate murder theory or the extreme atrocity
theory, and therefore, the Judge erred in denying his motion for a
required finding of not guilty. We disagree. There was ample
evidence to convict on both theories. With regard to deliberate
premeditation, the evidence would permit a rational jury to infer
that the defendant waited until the victim's son was at work, that
he approached his wife from behind with a wire, and strangled her
by tightening the wire around her neck. With regard to extreme
atrocity or cruelty, the prosecution's expert testified that:
there were multiple wounds on the victim's body; she was strangled
by a wire and then a rope; she was conscious for at least fifteen
seconds after strangulation began and remained alive for three to
five minutes; and there were indications of a conscious struggle.
These facts amply support a finding of premeditated and deliberate
murder, see Commonwealth v. Judge, 420 Mass. 433, 441, 650 N.E.2d
1242 (1995); Commonwealth v. Chipman, 418 Mass. 262, 269-270, 635
N.E.2d 1204 (1994); Commonwealth v. Basch, 386 Mass. 620, 622, 437
N.E.2d 200 (1982), as well as murder by extreme atrocity or
cruelty, see Commonwealth v. Simmons, 419 Mass. 426, 646 N.E.2d 97
(1995); Commonwealth v. Tanner, 417 Mass. 1, 2, 627 N.E.2d 895
6. Relief under G. L. c. 278, § 33E.
We have reviewed the entire record pursuant to
our responsibilities under G. L. c. 278, § 33E. There was
sufficient evidence to convict, and any errors did not create a
substantial likelihood of a miscarriage of Justice. Therefore, we
decline to exercise our extraordinary power to reverse the
conviction or reduce the degree of guilt.