Commonwealth v. Deconinck

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

Decisions, Supreme Judicial Court, John Adams Courthouse, 1

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-12198

COMMONWEALTH vs. PETER DECONINCK.

Suffolk. April 6, 2018. - August 10, 2018.

Present: Gants, C.J., Gaziano, Lowy, Budd, & Kafker, JJ.

Homicide. Self-Defense. Evidence, Self-defense, Testimony

before grand jury, Declaration of deceased person, Hearsay,

Prior violent conduct, Bias. Practice, Criminal, Capital

case, Disqualification of judge, Instructions to jury,

Question by jury.

Indictment found and returned in the Superior Court

Department on November 20, 2013.

The case was tried before Linda E. Giles, J.

Amy M. Belger for the defendant.

Paul B. Linn, Assistant District Attorney (Masai-Maliek

King, Assistant District Attorney, also present) for the

Commonwealth.

GAZIANO, J. A Superior Court jury convicted the defendant

of murder in the first degree on a theory of extreme atrocity or

cruelty for the fatal stabbing of Ronald Russo on August 24,

2013. That evening, the defendant and the victim, who were

2

long-time friends, got into an argument and shoving match inside

a mobile home. Both had been consuming alcohol before the

shoving match. They then armed themselves with kitchen knives.

During the ensuing fight, the defendant stabbed or slashed the

victim sixty-nine times, while sustaining a stab wound to his

right leg.

At trial, the defendant claimed that he had stabbed the

victim in self-defense or, in the alternative, that the

Commonwealth's evidence, at best, supported a conviction of

voluntary manslaughter due to the excessive use of force in

self-defense, sudden combat, or heat of passion.

The defendant argues that a new trial is required for a

number of reasons. He contends first that he was deprived of

the right to present a defense, based on the judge's rulings on

the admissibility of an out-of-court statement to police made by

the only eyewitness to the altercation, a few hours after the

fight. The witness, a mutual friend of the defendant and the

victim, was unavailable to testify because he died unexpectedly

prior to trial. Over the Commonwealth's objection, the

defendant was permitted to introduce the witness's grand jury

testimony in evidence as prior recorded testimony. Defense

counsel's repeated efforts to introduce an audio-video recording

of the witness's statement to police, however, were denied on

the ground that the recording was hearsay evidence. The

3

defendant maintains, as he did strenuously at trial, that the

statement should have been played for the jury because it was

admissible under the narrow exception to the hearsay rule carved

out by this court in Commonwealth v. Drayton, 473 Mass. 23, 25,

40 (2015), S.C., 479 Mass. 479 (2018).

In addition, the defendant argues that he is entitled to a

new trial because the judge abused her discretion in excluding

so-called Adjutant evidence, including the unavailable witness's

recorded statement to police and other evidence of the victim's

violent conduct. See Commonwealth v. Adjutant, 443 Mass. 649,

664 (2005). The defendant contends that this evidence suggests

that the victim was the first aggressor in the knife fight. The

defendant claims further that his right to a fair trial was

violated by the judge's failure sua sponte to conduct a recusal

analysis, given that she had found his trial counsel in contempt

of court in an unrelated prior case, and that the judge

improperly instructed the jury in response to a question

regarding self-defense. The defendant also asks that we use our

extraordinary power under G. L. c. 278, § 33E, to reduce the

verdict. For the reasons that follow, we affirm the conviction

and decline to exercise our authority to grant relief under

G. L. c. 278, § 33E.

1. Facts. We recite the facts the jury could have found,

reserving some facts for later discussion of particular issues.

4

a. Commonwealth's case. In the summer of 2013, the victim

had been staying with John Fay at a trailer park located on

Revere Beach Parkway in Revere. Sometime during the day of

August 24, 2013, a neighbor encountered the victim and the

defendant in the driveway of Fay's trailer. The neighbor, who

had known both the victim and the defendant for years, went

inside the trailer with them and spoke with them briefly.

At around 8:15 P.M. that evening, the neighbor stopped by

Fay's trailer to ask the victim for help moving an appliance.

After calling out to see if anyone was there, he entered the

trailer and found that it was in complete disarray. He saw a

body on the kitchen floor and ran across the street to another

neighbor to telephone 911.

The responding police officers and emergency medical

technicians (EMTs) found the victim on the kitchen floor, lying

on his back in a pool of blood. There were extensive

bloodstains throughout the kitchen, and the table and several

chairs had been tipped over. The victim was holding a detached

blade from a chef-style knife in his right hand. Officers found

a bloodstained handle belonging to the chef-style knife, and a

5

bloodstained kitchen knife with a slightly bent blade, on the

kitchen counter.1

The victim died as a result of multiple sharp force

injuries. Of the sixty-nine stab wounds, there were nineteen on

his chest and stomach, twenty-six on his back, and fifteen on

his hands. Most of the wounds were superficial. One deep stab

wound in the victim's chest, and two deep stab wounds to his

back, pierced internal organs; each independently would have

been fatal.

Sometime around 8 P.M., a resident of the trailer park had

been walking home along Revere Beach Parkway. He a saw

shirtless white male, covered in blood "from head to toe"

approaching from the opposite direction. When he reached the

trailer park, he told one of the officers who had responded to

the crime scene what he had seen. As a result, officers headed

to Revere Beach Parkway in search of the suspect.

A Revere police officer located the defendant at the closed

Massachusetts Bay Transportation Authority Beachmont station.

1 Subsequent deoxyribonucleic acid (DNA) testing of a

bloodstain from the intact knife showed that the victim's blood

matched the major male profile; the minor DNA profile was

inconclusive. The bloodstain on the knife handle contained a

mixture of DNA that matched the defendant's DNA and the victim's

DNA. The victim's DNA matched the major DNA profile from the

bloodstain on the tip of the knife blade found in the victim's

hand; the defendant's DNA did not match the major male profile

on the tip of the blade, and the minor DNA profile was

inconclusive.

6

The defendant was unsteady on his feet and staggering, yanking

on the station doors and biting the lock. After disregarding

multiple orders to lie on the ground, and after staring for more

than thirty seconds at the officer, who had drawn his weapon and

was pointing it at the defendant, the defendant ultimately

complied. The officer saw that the defendant was bleeding from

an injury to his lower right leg. EMTs responded to the scene

to treat the defendant. During this time, the defendant was

combative, screaming, yelling, and threatening to kill the

officers and EMTs.

The defendant was transported to a hospital for further

treatment.2 At around 10 P.M., a State police detective entered

the defendant's hospital room. Upon seeing the detective, the

defendant said, "I don't remember where I was." The defendant

then declined to be interviewed, and the detective left the

room. The defendant later called for the detective to come

back. While the detective was attempting to read the defendant

the Miranda rights, the defendant interrupted and said that the

victim had stabbed him first in the leg. The defendant later

called the detective a "moron," and requested to be taken to

court because "it was self-defense." In a subsequent statement

2 The defendant's medical records indicate that he was

treated for a wound on the back of his right leg that appeared

to look more like a "stab injury." He also had abrasions on his

left leg, face, hands, and fingers.

7

to police, the defendant said that he had been at his friend

"Johnny Fay's" house, he had not killed anyone, and he had been

shot or stabbed in the back of his leg.

At trial, the Commonwealth played for the jury thirty-nine

short "snippets" from twenty-four recorded telephone calls made

by the defendant from the Suffolk County jail approximately one

month after his arrest.3 In these telephone conversations, the

defendant said that he stabbed the victim in self-defense, he

had been stabbed multiple times by the victim, he had not

intended to kill the victim, and he had been impaired by

Klonopin or Xanax. At other points, the defendant characterized

himself as a "stone cold killer" and reported that he had

"knocked [the victim] out, [taken] the knife, and . . . kept

sticking till [the victim] stopped moving."

b. Defendant's case. The only percipient witness, John

Fay, died unexpectedly prior to trial. In support of his theory

of self-defense, and that the victim had been the first

3 The Commonwealth introduced two compact discs (CDs)

containing 174 recorded telephone calls from the Suffolk County

jail, between August 27, 2013, and October 18, 2013, but played

only certain small portions for the jury. The judge initially

allowed the recordings of the calls to be introduced in their

entirety and to be available for the jury to play during

deliberations. She later ordered portions of the recordings

redacted as not relevant. Ultimately, toward the end of the

trial, the prosecutor and defense counsel agreed to the

admission of certain portions of specific calls. The two CDS

were withdrawn, and the jury were given a recording of only

those calls.

8

aggressor, the defendant introduced Fay's grand jury testimony

as prior recorded testimony. A transcript of Fay's grand jury

testimony was read into the record; trial counsel read the

prosecutor's questions and counsel's investigator read Fay's

responses.

Fay's testimony is summarized as follows. On the morning

of August 24, 2013, the victim went to Revere Beach, where he

encountered the defendant, who was one of his long-time friends.

The victim invited the defendant and the defendant's brother

back to Fay's trailer. While Fay was in the kitchen cooking,

the others were talking and drinking vodka. The victim and the

defendant also sniffed cocaine, and the defendant took some

prescription pills.4 Other friends stopped by, and the victim

instigated a shoving match with one of the guests.

By 6 P.M., the other guests had left and only the defendant

and the victim remained in the trailer with Fay. The others

decided to leave because "[the victim] was being disruptive,

pounding on the table. He was drunk and . . . it wasn't a good

scene . . . ." The victim pushed Fay into the stove so hard

that a pot was almost knocked over. The defendant, who had been

sitting at the kitchen table, stood up and told the victim to

leave Fay alone and to stop causing trouble. This resulted in

4 When the defendant was arrested, police seized a bottle of

Xanax pills from his pants pocket.

9

several arguments and shoving matches between the victim and the

defendant. The quarrel became more heated when the defendant

mentioned "an old prison beef." They also quarreled because the

defendant said the victim had stolen prescription pills from him

earlier that day. Fay separated the victim and the defendant

three or four times.

While Fay was in the bathroom, he heard the two men

continuing to argue about the allegedly stolen pills. From the

hallway, Fay saw the two seated at opposite ends of the kitchen

table. The defendant jumped up from his chair, lifting the

table off the floor in doing so. He went around the table

toward the victim. The victim jumped up to face the defendant.

According to Fay, the defendant and the victim each took a knife

from the table. Fay did not actually see either man reach for a

knife, and could not tell who was the first to arm himself.

"[I]t just happened so quick. I just saw two people with

knives. I don't know how or what they grabbed."

The victim and the defendant moved to the side of the

table. Fay saw them "stabbing each other." He did not see

whether the victim or the defendant was the first to swing a

knife or stab the other. "I don't know who struck who or

whatever. They were wrestling back and forth, and then I saw

the knives, and then I seen each other sticking. I don't know

who struck who first." Fay described the victim as "fighting

10

for his life" against a much larger and more hostile opponent.5

The victim and the defendant swung their knives at each other

"back and forth." The defendant got the better of the victim,

and connected at least three to five times. The victim

collapsed on the kitchen floor, and the defendant fled the

trailer. Fay did not telephone for help. He left to go to a

neighborhood bar.6

The defendant called two expert witnesses. The first, a

chemist, extrapolated from the defendant's blood alcohol content

(BAC) of 0.11 when he was admitted to the hospital, and opined

that the defendant had had a BAC of approximately 0.15 to 0.16

earlier in the evening. The expert also testified to the

effects of Xanax and cocaine on cognitive functioning. The

second expert, a forensic neuropsychologist, testified that the

defendant suffered from impaired judgment and impulse control

due to past traumatic brain injuries, depression, and substance

abuse.

The judge instructed the jury on self-defense, murder in

the first degree on a theory of extreme atrocity or cruelty,

5 According to Fay, the victim was six feet tall and weighed

approximately 220 pounds, and the defendant was six foot three

or four inches tall and weighed approximately 280 pounds.

6 Some of Fay's testimony to the grand jury was consistent

with what he had told police in the audio-video recorded

statement a few hours after the incident; other portions

differed or were more detailed.

11

murder in the second degree, and voluntary manslaughter on

theories of excessive force in self-defense, heat of passion,

and sudden combat. The jury convicted the defendant of murder

in the first degree.

2. Discussion. In this direct appeal, the defendant

contends that Fay's recorded statement to police was admissible

under an exception to the hearsay rule discussed in Drayton,

473 Mass. at 25, 40, because it bore indicia of reliability, was

contemporaneous with the events, and was critical to his

defense; the defendant argues that the denial of his motion to

introduce this evidence deprived him of the right to present a

defense and requires a new trial. Second, the defendant asserts

that the judge abused her discretion in excluding other Adjutant

evidence concerning prior acts of the victim. Third, the

defendant contends that the judge should have considered

recusing herself, sua sponte, after considering her order of

civil contempt against his trial counsel in an unrelated case

prior to his trial. The defendant argues that the judge's bias

toward his counsel, and her decision not to even consider

recusing herself, deprived him of the right to a trial by a fair

and impartial tribunal. Fourth, the defendant argues that the

judge's answer to a jury question concerning self-defense

foreclosed the possibility of a lesser verdict of voluntary

manslaughter. In addition, the defendant asks us to exercise

12

our extraordinary authority to overturn the conviction and order

a new trial, or to reduce the verdict.

a. Admissibility of Fay's videotaped statement. In

Drayton, 473 Mass. at 33, we considered whether to adopt a

narrow, constitutionally based exception to the hearsay rule.

In the "unusual circumstances" presented in that case, the

defendant sought to admit an affidavit of a deceased witness as

newly discovered evidence in support of a motion for a new

trial. Id. at 25, 27-28. Applying the dying declaration

exception to the hearsay rule, the judge had excluded the

affidavit and denied the motion for new trial. Id. at 32.

We concluded that the affidavit "plainly would have been

critical to the defense" because it directly contradicted the

sole eyewitness's testimony implicating the defendant in the

fatal shooting. Id. at 36. Recognizing a constitutionally

based hearsay exception "rooted in the United States Supreme

Court's decision in Chambers v. Mississippi," 410 U.S. 284, 302

(1973), we held that the deceased witness's affidavit could be

admissible at postconviction proceedings, notwithstanding that

it did not fall into any traditional category of a hearsay

exception. Drayton, 473 Mass. at 33, 36. See Chambers, supra

("hearsay rule may not be applied mechanistically to defeat the

ends of justice"). Accordingly, we remanded the case to the

Superior Court to allow the defendant to establish that the

13

deceased witness's affidavit was sufficiently reliable.

Drayton, supra at 36, 40. Notwithstanding this ruling, the

opinion ended "by emphasizing the narrowness of the

constitutional principle that governs this case and necessitates

our remand. . . . In the vast majority of cases, the

established hearsay exceptions will continue to govern the

admissibility of hearsay evidence at most criminal trials, with

this constitutional hearsay exception operating only in the

rarest of cases, where otherwise inadmissible evidence is both

truly critical to the defendant's case and bears persuasive

guarantees of trustworthiness." Id. at 40.

Here, the judge excluded Fay's recorded statement to police

on hearsay grounds. She found that the audio-video recorded

statement was inadmissible hearsay. She also noted that, as

compared to Fay's grand jury testimony, which she allowed to be

introduced at trial as prior recorded testimony because Fay was

unavailable, the recorded statement did not materially advance

the defendant's claim of self-defense. In the recorded

statement, Fay said that, after he saw the defendant and the

victim facing each other holdings knives, he left and went to a

bar.

The defendant concedes that Fay's grand jury testimony,

which was read to the jury, "does overlap with much of the Fay

[s]tatement." He contends, however, that there are crucial

14

differences between the recorded statement and the grand jury

testimony. "[W]hat the jury would have gotten from the Fay

[s]tatement that it did not get from the grand jury testimony

[introduced at trial] was the fact that [the victim] was an

instigator of violence who was provoking both [the defendant]

and Fay to the point where even Fay pushed [the victim] and

slammed [the victim]."

We agree with the judge's conclusion that the statement did

not fit within the narrow hearsay exception set forth in

Drayton. Notably, the defendant did not establish that its

admission was critical to his case. By introducing Fay's grand

jury testimony, the defendant was able to demonstrate that the

victim had been intoxicated and belligerent. The jury heard

that the victim pushed one guest to the floor and that almost

all of the guests left the gathering because the victim had been

so disruptive and was banging on the table. After the others

left, the victim continued to pound on the kitchen table with

his fists, got into multiple heated arguments, and pushed his

friends.7

7 There are other differences in Fay's recorded statement as

compared to his grand jury testimony. For instance, in his

statement, Fay told police that he was so frustrated with the

victim that, "[I] finally . . . slammed him. I pushed him. I

said, 'Don't -- stop. Go sit down. You know, I'm trying to

cook. Go sit down." The victim, chastened, did so. In his

grand jury testimony, Fay did not mention that he "slammed" the

15

In addition, Fay's statement did not bear "persuasive

assurances of trustworthiness" (citation omitted). See Drayton,

473 Mass. at 36. Fay told the police that he left the trailer

as soon as he saw the victim and the defendant holding knives.

By contrast, Fay testified before the grand jury that he was

present during the knife fight and saw the victim collapse onto

the kitchen floor, upon which Fay left the trailer. Fay also

testified at the grand jury that he had lied to the police in

his initial statement. He explained that, at the time of the

recorded statement, "I was basically scared to death. I mean, I

didn't want to get hemmed up in something that I had nothing to

do with and had no control of. We're all friends, and it was

just a -- nutty situation. And at that point I was in shock,

and what I saw I never saw before in my life. And that was it.

victim, or that he ordered the victim to sit down. These facts,

and some other differences in Fay's description of the events,

were not material to the defendant's claim of self-defense.

The defendant makes much of the fact that the judge issued

her ruling based on a transcript of Fay's statement, without

viewing the audio-video recording. We have watched the

recording and conclude that the video portion of the interview

did not add any substantive evidence. The recording does show

that Fay spoke using many gestures, and demonstrated parts of

the altercation, such as the victim pounding on the table; Fay

also made pushing motions to indicate the victim pushing others.

Fay insisted that he left the trailer as soon as the victim and

the defendant armed themselves, and that he did not see the

knife fight. As such, Fay did not reenact the stabbing.

16

I just, I wasn't right in my mind at that point."8 See

Commonwealth v. Dame, 473 Mass. 524, 533 n.17, cert. denied, 137

S. Ct. 132 (2016) (rejecting defendant's claim that Drayton

exception applied where excluded statements were contradicted by

other evidence).

For these reasons, we conclude that the judge did not err

in excluding Fay's recorded statement from being introduced in

evidence.

b. Adjutant evidence. In Adjutant, 443 Mass. at 650, 664,

we modified our common law of evidence and decided that, in a

case involving a claim of self-defense where the identity of the

initial aggressor is in dispute, a defendant may introduce

evidence of specific prior acts of violence that had been

initiated by the victim. See Mass. G. Evid. § 404(a)(2)(B)

(2018). Departing from our prior case law, see Commonwealth v.

Fontes, 396 Mass. 733, 735-736 (1986), we held that this

evidence is admissible whether or not the victim's prior acts of

violence were known to the defendant. Adjutant, supra at 649-

650. The purpose of so-called Adjutant evidence "is to give the

Over the defendant's objection, the judge allowed the

8

Commonwealth to impeach Fay's grand jury testimony with portions

of the audio-video recording. Thus, the jury heard that, on a

prior occasion, Fay had told the police that he left the trailer

before the stabbing, and did not see a knife fight. This

evidence was admissible to impeach the credibility of a hearsay

declarant. See Commonwealth v. Mahar, 430 Mass. 643, 649

(2000); Mass. G. Evid. § 806 (2018).

17

jury a full picture of the altercation so as to make an informed

decision about the identity of the initial aggressor."

Commonwealth v. Pring-Wilson, 448 Mass. 718, 737 (2007). See

Commonwealth v. Morales, 464 Mass. 302, 307 (2013) (noting that

self-defense cases often involve "confusing and conflicting

evidence of what actually happened and a dispute about the

identity of the first aggressor").

Subsequently, we clarified that the term "first aggressor"

is not limited to the person who provokes or initiates a

nondeadly assault. See Commonwealth v. Chambers, 465 Mass. 520,

528-530 (2013). Adjutant evidence is relevant to the issue

which person initiated the hostilities, and also as to which

person escalated the potential for violence through the use or

threat of deadly force. See id. at 529-530. Where either fact

is at issue, a defendant may introduce Adjutant evidence to

assist the jury in deciding whether the Commonwealth has proved

that the defendant did not act in self-defense. Id. at 530.

A trial judge plays a critical role in evaluating proffered

Adjutant evidence and allowing the admission of "so much of that

evidence as is noncumulative and relevant to the defendant's

self-defense claim." Adjutant, 443 Mass. at 663. See Pring-

Wilson, 448 Mass. at 738 (admissibility of Adjutant evidence

left to sound discretion of trial judge). Accordingly, we do

not disturb a judge's finding on the admissibility of Adjutant

18

evidence unless the finding results from "a clear error of

judgment in weighing the factors relevant to the decision, . . .

such that the decision falls outside the range of reasonable

alternatives" (citation and quotation omitted). See L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Here, in support of his argument that he was forced to stab

the victim in self-defense, the defendant filed a motion in

limine seeking to admit four prior acts of violence committed by

the victim. The four specific acts were (1) the victim's 2009

admission to sufficient facts to charges of assault and battery;

(2) a 2010 violation of a restraining order; (3) the victim's

guilty plea to charges of assault and battery; and (4) a 2001

burglary conviction. In addition, the defendant moved to

introduce Fay's audio-video recorded statement also for this

second purpose, as Adjutant evidence. He argued that, "[d]uring

this interview just a few hours after the fatal stabbing, Fay

[told] the police that [the victim] was drunk on vodka, started

pounding the table with his fists, pushed Fay and repeatedly got

into a shoving match with the defendant right before the fatal

knife fight." The Commonwealth objected to the admission of the

proffered Adjutant evidence on the ground that certain of the

incidents were too remote, and others failed to establish that

the victim had been the first aggressor.

19

The judge allowed the defendant's motion to introduce

evidence of the victim's 2009 admission to sufficient facts to a

charge of assault and battery. In that case, as described in a

police report, the victim approached his former girl friend at

the restaurant where she worked and slapped her face with the

back of his hand. A few minutes later, the victim assaulted her

with a knife that he had grabbed from the restaurant kitchen,

and threatened to "snap" her neck.

Over the Commonwealth's objection, the judge ruled that the

defendant would be able to introduce a certified copy of the

admission to sufficient facts. The judge did not allow the

defendant to introduce the police report, reasoning that it was

inadmissible hearsay and that, in any event, the defendant had

the opportunity to introduce this evidence through the testimony

of the victim's former girl friend and the court records. When

defense counsel argued that calling the former girl friend would

be infeasible because she had been hostile and uncooperative

with counsel and his investigator, the judge commented, "Just

because she's uncooperative with you, doesn't mean you still

can't call her to the stand and put her under oath and ask her

about that incident." The judge denied the defendant's motion

as to the other proffered Adjutant evidence. She found that the

violation of the restraining order was not probative of the

victim's aggression and use of a deadly weapon. With respect to

20

Fay's recorded statement, the judge found that it did not

qualify as Adjutant evidence because it did not establish that

the victim had been the first to use deadly force.

At trial, the defendant decided to forgo introducing

Adjutant evidence. Defense counsel noted, "I don't feel that

the Adjutant is powerful with just the one witness, although the

[c]ourt disagrees." On appeal, the defendant contends that the

judge abused her discretion in her rulings on the admissibility

of the proffered Adjutant evidence. He argues that it was error

to exclude the audio-video recording of Fay's statement to

police because the statement showed that the victim initiated

the aggression "close in time to the introduction of deadly

force." The defendant argues also that the judge erred in

excluding the police report on hearsay grounds and in excluding

the victim's violation of the restraining order issued regarding

his former girl friend.9

9 The defendant also claims that the judge erred by

"threatening" to allow the Commonwealth to introduce Adjutant

rebuttal evidence. Prior to trial, the Commonwealth moved to

introduce evidence that, in 2005, the defendant had been the

first aggressor in a barroom brawl with an off-duty fire

fighter. See Commonwealth v. Morales, 464 Mass. 302, 310-311

(2013); Mass. G. Evid. § 404(a)(2)(B) (2018). The judge ruled

that if the defendant chose to introduce Adjutant evidence, she

would conduct a voir dire of the fire fighter to determine

whether the defendant had been the first aggressor in that

fight. Who had been the first aggressor in that incident was a

disputed issue at the trial in the case, because the

Commonwealth also had charged the fire fighter with a crime, and

21

We first consider the argument that the judge's exclusion

of the audio-video recording of Fay's statement to police

deprived the defendant of the right to introduce admissible

evidence that the victim had been the first aggressor. The

defendant maintains that the statement included "compelling

evidence on the question of who initiated the assault."

According to the defendant, this "compelling" evidence consisted

of the victim's intoxication, the victim acting aggressively by

pounding on the kitchen table and starting a fight with the

defendant, and the victim pushing Fay.

Contrary to the defendant's claim, however, he was in fact

able to, and did, present this evidence to the jury in the form

of Fay's testimony to the grand jury, which was read in evidence

in a question and answer form, as it had been given. Fay's

testimony, through the grand jury transcript, included his

statement that the victim had been drinking vodka and sniffing

cocaine.10 Fay described the victim as "drunk" and "disruptive."

the fire fighter admitted to sufficient facts. In making this

ruling, the judge noted that the defendant had changed his

position on whether he intended to introduce Adjutant evidence

at trial. She requested that defense counsel discuss with the

defendant the strategic choice of going forward with the

Adjutant evidence and consider the possibility of rebuttal

evidence if he chose to do so. This was not a "threat."

10This testimony was corroborated by the medical evidence.

The medical examiner testified that the victim's blood alcohol

22

Fay testified that that the victim, in an intoxicated state, had

pushed Fay and another guest without provocation. Fay also

testified that the victim had been continuously pounding the

kitchen table and that he had fought with the defendant. Fay

stated that he had been forced to separate the victim and the

defendant three or four times because the victim and the

defendant "were arguing back and forth, and they got into a few

pushing contests."11 Thus, there was no abuse of discretion in

the judge's decision not to allow the introduction of the audio-

video recording of Fay's earlier statement, which the judge

determined to be hearsay.

We turn to the police report in the 2009 case of assault

and battery, in which the victim admitted to sufficient facts.

The judge excluded the police report as inadmissible hearsay.

As stated, in Adjutant, 443 Mass. at 664, we concluded that, in

content was .10, and that the toxicology screen was positive for

cocaine.

11 During a hearing on the defendant's motion, trial counsel

agreed that Fay's grand jury testimony included the Adjutant

evidence contained in the audio-video recording of Fay's

statement to police.

The judge: "And I believe [the Adjutant evidence] has to

do with the portion of the recorded interview of Mr. Fay

dealing with the allegations that [the victim] was drunk,

started pounding on the table with his fist, pushed Mr.

Fay, and repeatedly got into a shoving match. It's my

understanding that that testimony is in Mr. Fay's grand

jury testimony. Is that correct . . . ?"

Defense counsel: "Yes."

23

a case involving a claim of self-defense, where the identity of

the first aggressor is disputed, a defendant may introduce

evidence of specific acts of violence by the victim to

demonstrate that the victim had been the first aggressor. The

decision did not, however, "alter the rule against the admission

of hearsay evidence." See Commonwealth v. Clemente, 452 Mass.

295, 306 & n.18 (2008), cert. denied, 555 U.S. 1181 (2009)

(police reports detailing specific incidents of violence were

inadmissible). "The case merely permitted the admission of

evidence that previously had been deemed irrelevant." Id. at

306 n.18.

We do not agree with the defendant's argument that Clemente

has been abrogated by the court's holding in Drayton. As

discussed, in that case we carved out a narrow exception for the

"rarest" of cases "where otherwise inadmissible evidence is both

truly critical to the defense's case and bears persuasive

guarantees of trustworthiness." Drayton, 473 Mass. at 40.

Here, by contrast, the police report was not critical to the

defense because the victim's former girl friend, although

apparently hostile to defense counsel, was available to testify

to the incident of assault and battery.

Finally, we discern no error in the judge's decision not to

allow introduction of the victim's violation of the restraining

order. In April, 2010, the victim repeatedly telephoned his

24

former girl friend in violation of a protective order not to

have any contact with her. During one of those telephone calls,

the victim asked his former girl friend, "What's going on -- Are

you going to [c]ourt? . . . Are you trying to lock me up?" In

another telephone call, the former girl friend asked the victim,

"What do you want from me?" The victim replied, "I want your

blood." Relying on Commonwealth v. Gaynor, 73 Mass. App. Ct.

71, 75-76 (2008), the judge found that the violation of the

restraining order did not qualify as an incident of specific

violence admissible to prove that the victim had been the first

aggressor. The violation of the restraining order was different

in nature from the knife fight. See id. The victim's threats

to his former girl friend were made by telephone, and there was

no indication that the victim followed through on those threats.

On this evidence, the judge did not abuse her discretion in

finding that the violation of the restraining order did not tend

to show that the victim was the initial aggressor in this

incident.

c. Recusal. Six years prior to this trial, defense

counsel was counsel for a different defendant in an unrelated

murder case before the same judge. The judge found defense

counsel in contempt of court. Although the defendant did not

seek the judge's recusal at trial, on appeal, the defendant

raises the question whether the judge's failure to consider

25

recusal sua sponte deprived him of the right to trial before an

impartial tribunal. Because the defendant did not ask the judge

to recuse herself prior to or during trial, we consider this

claim to determine whether there was a substantial likelihood of

a miscarriage of justice. See Commonwealth v. Wright, 411 Mass.

678, 681-682 (1992), S.C., 469 Mass. 447 (2014).

The issue requires us to examine the judge's prior decision

to hold defense counsel in civil contempt. During the course of

a 2010 trial, the judge found that counsel had behaved "like a

five year old" and "in the most unprofessional, unethical manner

that [she had] ever witnessed . . . in [her] nineteen years on

the bench." At the end of the trial, the judge conducted a

contempt hearing and found, among other things, that defense

counsel had made repeated, loud outbursts at sidebar; had acted

"absolutely out of control"; had displayed a lack of respect and

disdain for the court and the court's rulings; and had called

the prosecutor "jackass" in a voice loud enough to be heard by

the jury. The judge held counsel in contempt for violating

Mass. R. Prof. C. 3.4, 426 Mass. 1389 (1998) (fairness to

opposing party and counsel), and Mass. R. Prof. C. 3.5, 426

Mass. 1391 (1998) (decorum of tribunal). She commented that he

was a zealous advocate but had stepped far over the line;

accordingly, she fined him $500. The judge noted, however, that

26

counsel's actions had not been undertaken with a malicious

intent and, therefore, she would not report him to bar counsel.

The defendant maintains that, based on this prior finding,

the judge was required sua sponte to consider the issue of

recusal. Supreme Judicial Court Rule 3:09, Canon 2, Rule

2.11 (A) (2016), provides that a judge shall "disqualify himself

or herself in any proceeding in which the judge cannot be

impartial or the judge's impartiality might reasonably be

questioned." The duty to disqualify includes circumstances

where "[t]he judge has a personal bias or prejudice concerning a

party or a party's lawyer." Id. "The touchstone for the

principle of judicial impartiality are the words memorialized in

art. 29 of the Massachusetts Declaration of Rights, requiring

that judges be "as free, impartial and independent as the lot of

humanity will admit" (citation omitted). Commonwealth v.

Eddington, 71 Mass. App. Ct. 138, 142-143 (2008). See

Commonwealth v. Leventhal, 364 Mass. 718, 721 (1974) (rigid

adherence to principles embodied in art. 29 "is essential to the

maintenance of free institutions" [citation omitted]).

We have held that bias requiring removal "ordinarily

arise[s] from an extrajudicial source." Commonwealth v. Gogan,

389 Mass. 255, 259 (1983). A judicial ruling, standing alone,

"almost never constitute[s] a valid basis for a bias or

partiality motion." Liteky v. United States, 510 U.S. 540, 555

27

(1994). See Erickson v. Commonwealth, 462 Mass. 1006, 1007

(2012) (recusal not required where defendant was unable to

demonstrate that judge's rulings were "influenced by any

considerations other than the law" [citation omitted]).

"[J]udicial remarks during the course of a trial that are

critical or disapproving of, or even hostile to, counsel, the

parties, or their cases, ordinarily do not support a bias or

partiality challenge. They may do so if they reveal an opinion

that derives from an extrajudicial source; and they will do so

if they reveal such a high degree of favoritism or antagonism as

to make fair judgment impossible." Liteky, supra. See LoCascio

v. United States, 473 F.3d 493, 495-496 (2d Cir.), cert. denied,

552 U.S. 1010 (2007) (trial judge's decision to hold defense

counsel in contempt and his fourteen-year history of denying

defendant's motions "do not raise even a suspicion of a 'deep-

seated and unequivocal antagonism that would render fair

judgment impossible'" [citation omitted]).

The defendant contends that the judge in his case

"displayed an improper judicial temperament and a clear bias

toward counsel in front of [the] jury." He maintains that she

exhibited bias against defense counsel by repeatedly criticizing

28

and scolding him, raising her voice,12 admonishing counsel in

front of the jury, and declining to provide counsel with the

opportunity to be heard.

There is no need to discuss every exchange between the

judge and defense counsel over the course of the defendant's

trial. It suffices to say that, on multiple occasions, defense

counsel raised issues that previously had been fully argued and

decided by the judge. The judge was required to admonish him to

stop interrupting her and to keep his voice down at sidebar

conferences so that he would not be overheard by the jury.

After one sidebar conference towards the end of the trial, the

judge commented that defense counsel was acting unprofessionally

and was "absolutely out of control."

Notwithstanding counsel's persistence in continuing this

type of behavior, the judge admonished him before the jury on a

single occasion. During cross-examination of a police officer,

defense counsel sought to inquire into the reason why the

12The defendant provided this court with the audio

recordings of the trial. Based upon our thorough review of

those recordings, including all of the instances in which the

defendant claims that the judge "yelled" at defense counsel, we

are not persuaded that the record evinces bias against defense

counsel. The few isolated exchanges, when viewed in context,

show that counsel repeatedly questioned and rejected the judge's

rulings, at many points talking over her. Although clearly

frustrated by defense counsel's conduct, the judge took great

care to explain the legal basis for her rulings and displayed

appropriate judicial demeanor while maintaining control of the

trial.

29

defendant was hostile toward members of the Revere fire

department. The judge sustained the prosecutor's objection to

this line of questioning. Ignoring the judge's ruling on the

objection, as well as the judge's request to see the parties at

sidebar, defense counsel twice repeated the prohibited question.

The judge instructed defense counsel in open court, "When there

is an objection, you stop. Please, you know better than that."

It is well established that "a trial judge is responsible

for controlling the trial, maintaining order in the courtroom,

and guarding against improper conduct of counsel." Commonwealth

v. Perez, 390 Mass. 308, 316 (1983). After carefully

considering the record, we discern no evidence of "deep-seated

favoritism or antagonism that would make fair judgment

impossible." See Liteky, 510 U.S. at 555; Erickson, 462 Mass.

at 1007. The judge remained as respectful as possible to

defense counsel while fulfilling her obligation to control the

trial and to maintain order in her court room. See Commonwealth

v. Imbert, 479 Mass. 575, 588 (2018) (judge sometimes required

to admonish counsel to maintain order).

Our conclusion is supported by the judge's careful

instructions to the jury that were intended to mitigate any

potential prejudice that may have resulted from the jury's

perception that the judge viewed defense counsel as having been

out of line. The judge twice instructed the jury to "applaud"

30

the lawyers for acting as "zealous advocates." She explained

further that the jury should not infer anything from her rulings

on objections or motions, or from her comments to the lawyers.

See Imbert, 479 Mass. at 588; Commonwealth v. Carter, 475 Mass.

512, 526 (2016). In sum, we discern no evidence of bias and no

reason that the judge should have, sua sponte, considered

recusing herself.

d. Jury question. The defendant argues that the judge

committed reversible error when she provided supplemental

instructions to the jury in response to a question concerning

self-defense. During deliberations, the jury posed the

following question:

"Dear Judge, If we find that the sole basis self-

defense is not available to the defendant is his use of

excessive force (reason #4 on pg. 20 of your instructions),

are we limited to a conviction of voluntary manslaughter

due to mitigating circumstances? Or, are First & Second

degree murder convictions still possible if we find that

the other elements of those crimes are satisfied by the

facts proven beyond a reasonable doubt?"13

Defense counsel requested that the judge instruct the jury that,

if they found that the defendant had used excessive force in

13 "[R]eason #4 on pg. 20 of [the judge's written]

instructions" refers to that section of the judge's written

final charge which listed the five ways in which the

Commonwealth could establish the absence of the proper use of

self-defense. See Model Jury Instructions on Homicide 20-21

(2013). See also Commonwealth v. Glacken, 451 Mass. 163, 166-

167 (2008). The fourth proposition stated: "4. The defendant

used more force than was reasonably necessary under all the

circumstances."

31

self-defense, they would be limited to a verdict of voluntary

manslaughter. The judge determined that the question called for

a broader explanation of self-defense, because the jury's note

conflated the defense of self-defense with the mitigating factor

of excessive use of force in self-defense. See Commonwealth v.

Santos, 454 Mass. 770, 780 (2009) (Gants, J., dissenting) ("The

defense of self-defense is related to, but separate and distinct

from, the mitigating factor of excessive use of force in self-

defense"). See also Commonwealth v. Allen, 474 Mass. 162, 172

(2016) ("the use of excessive force . . . does not cause the

defendant to lose the benefit of the defense entirely . . . but

instead may warrant a finding of manslaughter" [citation

omitted]).

Over the defendant's objection, the judge instructed:

"If you find that the Commonwealth has proved beyond a

reasonable doubt that the defendant used more force than

was reasonably necessary under the circumstances, then the

defense of self-defense is not available to the defendant,

and you may not acquit him on the basis of such a defense.

"You may convict the defendant of either first or

second degree murder if the Commonwealth has proven to you

beyond a reasonable doubt, in addition to all the other

elements of either first or second degree murder, that

there were no mitigating circumstances, including but not

limited to the excessive use of force in self-defense."

On appeal, the defendant acknowledges that the jury's

question was ambiguous. Nonetheless, the defendant asserts that

the proper answer to the jury's question should have been a

32

simple "no." That is, a conviction of murder is not possible if

the jury were to find that the defendant used excessive force in

self-defense. Relying on Commonwealth v. Tavares, 471 Mass. 430

(2015), the defendant contends that the effect of the

supplemental instructions was to obscure or eliminate the

possibility that he could be found guilty of voluntary

manslaughter.

Unlike the instructions in Tavares, however, the

instruction here accurately stated the law. The complete

defense of self-defense is not available to an individual who

uses excessive force. See Commonwealth v. Glacken, 451 Mass.

163, 167 (2008). It is the Commonwealth's burden to prove that

there were no mitigating circumstances that would reduce the

crime from murder to manslaughter. Commonwealth v. Torres, 420

Mass. 479, 485 (1995).

Moreover, in her final charge before the jury began

deliberations, the judge provided the jury with comprehensive

instructions concerning the possibility of a verdict of

voluntary manslaughter based on the excessive force in self-

defense. See Commonwealth v. Harris, 395 Mass. 296, 301 (1985)

(supplemental instructions considered in light of entire set of

instructions). The judge informed the jury that, "[i]f you do

not find the defendant guilty of murder in the first-degree or

murder in the second-degree, you shall consider whether the

33

Commonwealth has proved the defendant guilty beyond a reasonable

doubt of the lesser offense of voluntary manslaughter." In

concluding her instructions on the elements of murder, she

explained, "[I]n addition to these elements, the Commonwealth

must also prove that there were no mitigating circumstances." A

mitigating circumstance, the judge instructed, "is a

circumstance that reduces the seriousness of the offense in the

eyes of the law. A killing that would be murder in first or

second degree is reduced to the lesser offense of voluntary

manslaughter where the Commonwealth has failed to prove that

there were no mitigating circumstances." See Model Jury

Instructions on Homicide 36, 41-42 (2013).

The judge also properly instructed the jury on the lesser

included offense of voluntary manslaughter based on excessive

use of force in self-defense. She explained, "I have already

told you that to prove the defendant guilty of murder, the

Commonwealth is required to prove beyond a reasonable doubt that

the defendant did not act in the proper exercise of self-

defense. If the Commonwealth proves that the defendant did not

act [in] proper self-defense solely because the defendant used

more force than was reasonably necessary, then the Commonwealth

has not proved that the defendant committed the crime of murder.

But if the Commonwealth has proved the other required elements,

34

you shall find the defendant guilty of voluntary manslaughter."

See Model Jury Instructions on Homicide, supra at 71.

Because the supplemental instructions, viewed in light of

the entire charge, did not eliminate or reduce the possibility

of a verdict of voluntary manslaughter based on the excessive

use of force in self-defense, there was no error.

e. Relief pursuant to G. L. c. 278, § 33E. The defendant

asks the court to consider all of the claims of error, taken as

a whole, and to come to the conclusion that justice was not

done. In particular, the defendant argues that he is entitled

to relief under G. L. c. 278, § 33E, because he was tried by a

judge who failed to safeguard his rights, and was represented by

a lawyer who antagonized the judge.

As discussed, we do not agree with the defendant's

contention that he was deprived of a fair trial because of

animus between the judge and defense counsel, and therefore

decline to disturb the verdict on that basis.

Pursuant to our duty under G. L. c. 278, § 33E, we have

carefully examined the entire record to determine whether relief

should be granted on some other ground. We have considered the

evidence of self-defense and sudden combat that the defendant

emphasizes, including the senseless nature of the fight,

evidence of both the victim's and the defendant's levels of

intoxication, and the fact that the victim was armed with a

35

knife. We also have considered evidence that the defendant and

the victim had been arguing and fighting earlier, and that they

had been separated a number of times because of that. In

addition, we have considered evidence that, although Fay gave

inconsistent statements concerning what he saw of the fight, in

one of those statements, Fay said that he saw the smaller victim

"fighting for his life" and being overpowered by the larger and

stronger defendant.

Having carefully reviewed the record, we conclude that the

defendant is not entitled to relief under G. L. c. 278, § 33E.

The issue of self-defense, which was the central theory of

defense, was fully aired at trial. Furthermore, based upon the

nature, number, and severity of the victim's wounds, we discern

no reason to disturb the jury's verdict that the offense was

murder in the first degree, not murder in the second degree or

manslaughter, nor was it a killing in self-defense. The record

does not suggest a fight between two equally matched combatants

or that the defendant was overpowered and had no other means by

which to escape an onslaught from the victim. The victim, who

was approximately four inches shorter and sixty pounds lighter

than the defendant, sustained three stab wounds, any one of

which could have been fatal, in addition to more than sixty

other knife wounds. The defendant sustained a single cut on the

back of one leg.

36

"The search under [G. L. c. 278, § 33E,] is a more general

and an obligatory one for a result that may be 'more consonant

with justice,'" Commonwealth v. Davis, 380 Mass. 1, 15 n.20

(1980), quoting Commonwealth v. Seit, 373 Mass. 83, 94 (1977),

but "[w]e do not sit as a second jury to pass anew on the

question of the defendant's guilt." Commonwealth v. Reddick,

372 Mass. 460, 464 (1977). See Commonwealth v. Walker, 443

Mass. 213, 229 (2005). In light of the entirety of the record,

we discern no reason to set aside the verdict or to reduce the

degree of guilt. See Commonwealth v. Harris, 464 Mass. 425,

429-430, 436 (2013) (court declined to exercise its

extraordinary authority to set aside murder verdict despite

evidence that victim had reached for firearm, had threatened to

shoot defendant, and had grabbed defendant by throat). Contrast

Commonwealth v. Vargas, 475 Mass. 338, 365-367 (2016) (verdict

of voluntary manslaughter more consonant with justice where

defendant was fearful of victim, "who was much larger" and was

"trained to kill," and where fight was result of "uncontrolled

violent actions on the part of the defendant").

Having carefully considered all of the evidence, we discern

no reason to use our authority under G. L. c. 278, § 33E, to

reduce the verdict to a lesser degree of guilt.

Judgment affirmed.