Commonwealth v. Stephanie A. Fernandes.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-732

COMMONWEALTH

vs.

STEPHANIE A. FERNANDES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2022, after a jury trial, the defendant was convicted of

voluntary manslaughter for killing the victim, Andrew Wagner.1

She was sentenced to serve eight to ten years in State prison.

On appeal, she claims, inter alia, that (1) the judge erred in

failing to instruct the jury on the Commonwealth's burden to

disprove accident; (2) several aspects of the Commonwealth's

expert's testimony were inadmissible; (3) evidence of the

defendant's prior bad acts was admitted for the impermissible

purpose of proving character traits of violence and

1The Supreme Judicial Court previously considered whether
the integrity of the grand jury process was impaired and
concluded that it was not. Commonwealth v. Fernandes, 483 Mass.
1, 16 (2019).
untruthfulness; and (4) the Commonwealth's closing argument

lacked a sufficient factual basis and reiterated inadmissible

evidence. We affirm.

Discussion. 1. Accident instruction. First, the

defendant claims that the judge erred in failing to instruct the

jury on the Commonwealth's burden to disprove accident. We

disagree.

"Voluntary manslaughter and an accidental killing are

mutually exclusive concepts in the criminal law of homicide."

Commonwealth v. Squailia, 429 Mass. 101, 109 (1999). This is

because "voluntary manslaughter is an intentional killing, which

is mitigated by extenuating circumstances," while "[a]n

accidental killing is, by definition, an unintentional killing,

and as such is excused by law." Id. "When the issue of

accident is 'fairly raised,' the judge, at least on request,

must instruct the jury that the Commonwealth must disprove

accident beyond a reasonable doubt." Commonwealth v. Podkowka,

445 Mass. 692, 699 (2006). "Where there is no evidence of

accident, the issue is not fairly raised and the judge need not

give an accident instruction." Id. "When analyzing whether a

judge erred in declining to give an accident instruction, a

reviewing court considers the evidence in the light most

favorable to the defendant." Commonwealth v. Lugo, 482 Mass.

94, 102 (2019).

2
Here, in relevant part, the defendant testified to the

following: after the victim attacked her, she ran into the

kitchen, picked up a knife, and held it in front of her; the

defendant "didn't even move" as the victim ran to her saying,

"[g]ive me the knife, you fucking bitch"; she felt "frozen" when

the victim reached her, at which point the victim put his hand

on her throat, grabbed her hand, and subsequently said, "I think

I got stabbed"; and following the stabbing, the defendant

claimed that she was "in shock" and felt "confused" because the

events occurred "so quick."

The defendant did not testify that the stabbing occurred

accidentally during a struggle over the knife. Contrast

Commonwealth v. Zezima, 387 Mass. 748, 750 (1982) ("According to

the defendant, as [the deceased] attempted to take the gun from

him, it discharged several times, killing [the deceased]");

Commonwealth v. Power-Koch, 69 Mass. App. Ct. 735, 736 (2007)

(during police interview, defendant claimed "by accident I shot

my friend in the chest"). To the contrary, the defendant denied

having testified that the defendant "fell onto the knife," and

stated that she "d[id]n't know what happened" during the

encounter. The record is devoid of evidence of the events that

took place between the time that the victim allegedly grabbed

the defendant's hand and the time of the stabbing. Accordingly,

even viewing the evidence in the light most favorable to the

3
defendant, it did not fairly raise the issue of accident. The

judge did not err in declining to instruct the jury on the

Commonwealth's burden to disprove it.

2. Expert testimony. The defendant raises five arguments

for the first time on appeal regarding the expert testimony

offered by Dr. David Adams, a licensed psychologist called by

the Commonwealth. Where there was no timely objection, "our

review is limited to whether any error created a substantial

risk of a miscarriage of justice." Commonwealth v. Henley, 488

Mass. 95, 127 (2021).

a. Opinion that the defendant was not a victim of domestic

violence. The defendant claims that Dr. Adams improperly opined

on the defendant's credibility. See Commonwealth v. Quinn, 469

Mass. 641, 646 (2014) ("No witness, neither a lay witness nor an

expert, may offer an opinion regarding the credibility of

another witness"). Specifically, the defendant contends that

Dr. Adams's testimony that "[the defendant] was not a victim of

domestic violence" and "did not fit the profile or the

experience of a battered woman" amounted to an opinion that her

claims of abuse were false.

"While an expert may describe the general behavioral
characteristics shared by victims of abuse, deference must
be preserved for the role of the jury as the final judge of
credibility. Expert testimony must be confined to a
description of the general or expected characteristics
shared by typical victims, and may not relate directly to
the symptoms exhibited by an individual victim . . ., nor

4
may it include an opinion or diagnosis that that person
suffers from the described condition" (quotation, citation
and alteration omitted).

Commonwealth v. Morris, 82 Mass. App. Ct. 427, 433 (2012).

Although Dr. Adams improperly opined that the defendant did

not suffer from intimate partner violence, the defendant's

expert, Dr. Carol Ball, likewise exceeded the scope of

permissible expert testimony -- i.e., the general

characteristics shared by typical victims of intimate partner

violence -- by stating, "[m]y opinion is that [the defendant]

experiences the symptoms of battered women's syndrome, also

known as intimate partner violence." See Morris, 82 Mass. App.

Ct. at 433. In light of Dr. Ball's equally impermissible

opinion, we have no serious doubt whether Dr. Adams's opinion

changed the outcome of the trial. See Commonwealth v. Valentin,

470 Mass. 186, 189 (2014). See also Commonwealth v. Randolph,

438 Mass. 290, 297 (2002) ("Errors of this magnitude are

extraordinary events and relief is seldom granted").

Accordingly, this error did not create a substantial risk of

miscarriage of justice. See Valentin, supra.

b. Opinion that the victim was a victim of domestic

violence. Next, the defendant claims that Dr. Adams's testimony

that "[the victim] was a victim of intimate partner violence,

coercively controlled and fearful," amounted to an opinion of

5
the defendant's guilt.2 For the reasons discussed, supra, Dr.

Adams's opinion exceeded the bounds of permissible expert

testimony, see Morris, 82 Mass. App. Ct. at 433, but did not

create a substantial risk of a miscarriage of justice in light

of Dr. Ball's improper opinion. See Valentin, 470 Mass. at 189.

Moreover, Dr. Adams did not improperly testify that he believed

the defendant was lying. To the contrary, and by way of

example, in reference to whether the defendant had visible

bruises, Dr. Adams testified that he did not "claim to know the

truth," and that it was not his job "to believe or not believe"

the defendant's claims of abuse.

c. References to the defendant's fits of rage. Next, the

defendant claims that Dr. Adams improperly testified to prior

incidents involving the defendant's "rage," which amounted to

inadmissible propensity evidence.3

2 Contrary to the defendant's assertion, Dr. Adams merely
opined on the nature of the relationship between the victim and
defendant, based on his review of phone records, police reports
and interviews, grand jury minutes, and Dr. Ball's evaluation of
the defendant. In doing so, Dr. Adams did not imply that the
defendant "necessarily was the perpetrator." Rather, he
clarified that "domestic violence isn't indicated by just
isolated events of violence. . . . [It] is a pattern of
coercive control."

3 In relevant part, Dr. Adams testified: (1) that the
defendant "sometimes rag[ed] at [the victim] for not coming home
right away [after work]"; (2) "there was lots of incidents where
[the defendant] was raging at [the victim]"; (3) "there were
just frequent . . . rages at both [the victim and another
intimate partner, Michael Laramee]"; (4) "I saw lots of evidence

6
"While evidence of the defendant's prior bad acts is not

admissible to show bad character or propensity to commit a

crime, . . . such evidence is admissible if relevant to show the

defendant's motive, intent, or state of mind" (citation

omitted). Commonwealth v. Gonzalez, 469 Mass. 410, 420 (2014).

However, "[t]he judge also must find that the probative value of

the evidence in question outweighs undue prejudice to the

defendant." Id. at 420-421. "Whether evidence of prior bad

acts is relevant, and whether the probative value of such

evidence is outweighed by its potential for unfair prejudice,

are determinations committed to the sound discretion of the

trial judge and will not be disturbed by a reviewing court

absent 'palpable error'" (citation omitted). Commonwealth v.

Rosario, 460 Mass. 181, 192-193 (2011).

Here, the defendant's claims of self-defense and intimate

partner violence placed the nature of her relationship with the

victim, as well as her state of mind at the time of the

stabbing, directly at issue. See Commonwealth v. Pike, 428

Mass. 393, 396 (1998), quoting Commonwealth v. Harrington, 379

in the interviews of witnesses, neighbors about incidents in
which [the defendant] had displayed explosive rage"; (5) "I
thought there was really quite a compelling history of [the
defendant's] explosive rage towards other people"; (6) that
there was an incident in which the defendant, who was a
passenger in a car driven by the victim, "raged" at another
driver; and (7) "there were a lot of incidents where [the
defendant was] raging at [the victim]."

7
Mass. 446, 450 (1980) (to establish self-defense with deadly

force, "the defendant [must have] reasonably and actually

believed that [s]he was in 'imminent danger of death or serious

bodily harm, from which [s]he could save [her]self only by using

deadly force'"); Commonwealth v. Goetzendanner, 42 Mass. App.

Ct. 637 (1997), quoting G. L. c. 233, § 23F ("expert testimony

concerning [battered women's syndrome] . . . may [b]e used to

establish 'the reasonableness of the defendant's apprehension

that death or serious bodily injury was imminent'"). Dr. Adams

testified to the defendant's "compelling history of . . .

explosive rage" not for the purpose of establishing the

defendant's propensity for violence, but because he considered

it in forming his opinion about the nature of her relationship

with the victim. This, in turn, was relevant to the defendant's

state of mind at the time of the stabbing. See Goetzendanner,

supra.

Moreover, during his final charge, the judge provided a

clear limiting instruction regarding the permissible uses of

prior bad acts evidence, which mitigated the risk of undue

prejudice to the defendant.4 We presume that the jury followed

4 The defendant contends that the judge's final instructions
were inadequate for two reasons: (1) they "endorsed the use of
propensity evidence"; and (2) they provided nothing other than a
"bland, nonspecific" instruction when a "more pointed, forceful,
and timely" directive was required, Commonwealth v. Demars, 42
Mass. App. Ct. 788, 791 (1997). We disagree on both points.

8
this instruction. See Commonwealth v. Bryant, 482 Mass. 731,

737 (2019). Where the prior bad acts evidence was highly

probative for nonpropensity purposes, "and the chance of

prejudice was minimized by a specific limiting instruction, we

cannot say on the record before us that the judge's decision to

admit the testimony was in palpable error." Commonwealth v.

Dunn, 407 Mass. 798, 807 (1990). As there was no error, the

admission of this evidence did not cause justice to miscarry.

d. Hearsay. Next, the defendant claims that Dr. Adams, on

direct examination, testified to inadmissible hearsay that

violated the confrontation clause of the Sixth Amendment to the

United States Constitution and art. 12 of the Massachusetts

Declaration of Rights.5 See Commonwealth v. McNickles, 434 Mass.

First, the judge emphasized that the jury "may not use
[prior bad acts] evidence as proof that [the defendant] is a
person of bad character with a propensity to commit criminal
acts."
Second, the instructions were not "bland" or "nonspecific"
like those in Demars, supra at 790, where the judge merely
instructed, "if you heard arguments about facts that were not in
evidence, you are to disregard that." Here, dissimilarly, the
instructions explicitly referred to the defendant's "prior bad
acts," including "evidence of incidents that occurred during
[the defendant's] relationships with Michael Laramee and [the
victim]."

5 Specifically, the defendant takes issue with four aspects
of Dr. Adams's testimony: (1) that the defendant "smashed the
windshield of [another] person's vehicle"; (2) that the
defendant "raged in her [neighbor's] face"; (3) that the
defendant "smashed a light bulb in the [victim's] eye on a
cruise ship"; and (4) that "according to Mr. Laramee, [the

9
839, 857 (2001) ("an expert witness may not, on direct

examination, present the specifics of hearsay information on

which she has relied in reaching her opinion"). We need not

conduct a hearsay analysis for each of the statements described

in note 5, supra, as such statements, even if inadmissible, were

cumulative of other properly admitted evidence of the

defendant's "fits of rage."6 Therefore, any error would not have

created a substantial risk of a miscarriage of justice. See

defendant] said that sometimes she feels like [s]he could stab
somebody."
We note that the defendant did not object to any of the
above testimony. The defendant objected only to Dr. Adams's
testimony regarding the defendant's alleged prior conviction of
malicious destruction of property, and an e-mail or text message
exchange in which the defendant allegedly "rag[ed]" at her
landlord.

6 Laramee testified that, after the defendant returned from
being away for several days on what he believed to be a heroin
binge with her ex-husband, Laramee said to the defendant, "cut
the bullshit. You're going to lose your kid," which caused the
defendant to become "[e]xtremely angry" and "thr[ow] a remote at
[Laramee's] head." Laramee further alleged that, after
forbidding the defendant from leaving the house with his truck,
"[s]he grabbed a knife" and "stabbed [a] dining room chair."
Laramee also testified that, on a separate occasion, he and
the defendant had gotten into an argument, during which he
"heard a ching of a knife coming out of the butcher block," so
he entered the kitchen, "hit [the knife] out of [the
defendant's] hand," and "threw her on the ground and had her on
the floor by her neck." In response, the defendant allegedly
"took [Laramee's] thumb and bent it backwards, dislocat[ing]
it."
As discussed, infra, we disagree with the defendant's
arguments against the admissibility of Laramee's testimony.

10
Commonwealth v. Avila, 454 Mass. 744, 763 (2009) (applying

substantial likelihood standard).

e. Scientific foundation. Next, the defendant claims that

Dr. Adams's opinion lacked a sufficient scientific foundation.

This argument is waived, as the defendant did not raise it

below. Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 694

(2015), S.C., 90 Mass. App. Ct. 227 (2016). See Commonwealth v.

Wilkerson, 486 Mass. 159, 172 (2020) ("Where a defendant does

not request a Daubert-Lanigan hearing to challenge the general

scientific reliability of the methodology prior to trial, the

issue is waived on appeal").

3. Miscellaneous character evidence claims. a. The

defendant's occupation. The defendant claims that the

Commonwealth improperly insinuated the defendant's "dishonest

and exploitative character" based on her prior occupation as a

dancer at a Springfield strip club. Specifically, the defendant

takes issue with two questions that the prosecutor posed on

cross-examination to Danielle Lord, the defendant's former

coworker: (1) "[A]s an exotic dancer, your role or your job to

make money was to dance for men? . . . So you would agree that

a stripper uses manipulation?"; and (2) "[W]hen you were an

11
exotic dancer, you didn't go under your legal name did you?

. . . You went under a stage name?"7

"As a general matter, trial attorneys are allowed to pursue

vigorous cross-examination." Commonwealth v. Fahey, 99 Mass.

App. Ct. 304, 309 (2021).

"[T]he fact that a question may be degrading is not, by
itself, a barrier to its utterance. If the examiner
reasonably believes that the answer will shed light on the
credibility of the witness, or that the answer will aid the
jury's exploration of a material fact, then a question's
degrading content is simply a factor . . . in determining
whether the anticipated answer's probative value is
substantially outweighed by any unfair prejudice the
question will likely produce."

Commonwealth v. Murphy, 57 Mass. App. Ct. 586, 590 (2003).

On appeal, "[w]e review a judge's evidentiary rulings for

an abuse of discretion." Commonwealth v. Andre, 484 Mass. 403,

414 (2020). "We will conclude that there has been an abuse of

discretion only if the judge has 'made "a clear error of

judgment in weighing" the factors relevant to the decision,

. . . such that the decision falls outside the range of

reasonable alternatives.'" Commonwealth v. Hammond, 477 Mass.

7 The defendant cites to Commonwealth v. Kozec, 399 Mass.
514, 525 (1987), for the proposition that the prosecutor's
questions to Lord "had no purpose other than showing that both
[the defendant] and the witness . . . were shameless women
engaged in 'a form of exhibitionism with demeaning sexual
overtones, in a sense evidence of the defendant's bad
character.'" As discussed, infra, we need not decide whether
the judge abused his discretion in allowing such questions, as
any error was insufficiently prejudicial to require vacating the
judgment.

12
499, 505 (2017), quoting L.L. v. Commonwealth, 470 Mass. 169,

185 n.27 (2014). In particular, "[t]he determination whether

the prejudicial effect of a statement outweighs its probative

value 'rests in the sound discretion of the judge and will be

upheld absent palpable error.'" Commonwealth v. Julien, 59

Mass. App. Ct. 679, 688 (2003), quoting Pike, 430 Mass. at 325.

With respect to the question about manipulation tactics,

the defendant objected at trial, so we review for prejudicial

error. Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). "This

requires a two-part analysis: (1) was there error; and (2) if

so, was that error prejudicial." Id. "An error is not

prejudicial if it 'did not influence the jury, or had but very

slight effect.'" Id., quoting Commonwealth v. Flebotte, 417

Mass. 348, 353 (1994).

Even if the judge erred in allowing this question, which we

need not decide, such error did not prejudice the defendant.

The defendant's occupation was already in evidence when the

prosecutor asked the question, contrast Commonwealth v. Kozec,

399 Mass. 514, 525 (1987) (no evidence of defendant's employment

as "jello wrestler" before witness gave inadmissible testimony);

the testimony was brief and not repeated in closing; and Lord

denied that the defendant was a manipulator.

With respect to the question about Lord's use of a stage

name, the defendant did not object at trial, so we review for

13
whether any error created a substantial risk of a miscarriage of

justice. See Commonwealth v. McGann, 484 Mass. 312, 322 (2020).

Again, we need not inquire into the question's propriety, as any

error would not have created a substantial risk of a miscarriage

of justice. We are not persuaded that the testimony was

sufficiently significant in the context of the trial to

materially influence the verdict, where the testimony (1)

addressed only Lord's use of a stage name, and did not discuss

the defendant; and (2) was brief and not repeated in closing.

See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).

b. Cross-examination by innuendo. Next, the defendant

claims that the Commonwealth improperly cross-examined Lord by

innuendo by asking whether the defendant's tendency to "go

missing for days" might have been caused by substance abuse, as

the question "had no basis in the evidence." See Commonwealth

v. Wynter, 55 Mass. App. Ct. 337, 337 (2002), citing

Commonwealth v. Fordham, 417 Mass. 10, 20 (1994) ("it is error

for a prosecutor to communicate impressions by innuendo through

patterned and leading questions with no demonstrated evidentiary

or good faith basis, which are crafted to evoke negative and

prejudicial answers leaving nothing more or less than the

unsubstantiated innuendo").

There was no error, as we cannot say that the prosecutor's

question had no "mooring in evidence." Wynter, 55 Mass. App.

14
Ct. at 339. The defendant's history of substance abuse was in

evidence.8 Moreover, that defense counsel did not object is

further indication that the questions did not convey improper

innuendo as the defendant now claims. Commonwealth v. Alemany,

488 Mass. 499, 512 (2021).

c. The defendant's character for truthfulness. Next, the

defendant claims that the prosecutor improperly impeached the

defendant's credibility with "evidence of false statements in

unrelated matters" by asking whether she lied (1) to her

boyfriend's mother about her occupation; and (2) in an affidavit

filed in connection with a 2007 restraining order.

"The general rule . . . is that a party may impeach a

witness by attacking the witness's character for truthfulness,

but only through general reputation evidence, or evidence of a

witness's prior criminal convictions in conformity with the

requirements of G. L. c. 233, § 21." Commonwealth v. Almonte,

465 Mass. 224, 241 (2013). That is to say, "specific instances

of misconduct showing the witness to be untruthful are not

admissible for the purpose of attacking . . . the witness's

credibility" (citation omitted). Commonwealth v. Lopes, 478

Mass. 593, 606 (2018).

8 Laramee testified that, between 2004 and 2006, the
defendant used "[p]ills, cocaine . . . [and] [e]ventually . . .
heroin," and that he stopped talking to the defendant in 2006
"when she went to rehab" in order to address her addiction.

15
We agree that the above questions were improper; neither

was relevant other than to undermine the defendant's character

for truthfulness. Because the defendant did not object to

either question, we review for whether they created a

substantial risk of a miscarriage of justice. Alphas, 430 Mass.

at 13. In doing so,

"[w]e review the evidence and the case as a whole. We
consider the strength of the Commonwealth's case, the
nature of the error, the significance of the error in the
context of the trial, and the possibility that the absence
of an objection was the result of a reasonable tactical
decision."

Commonwealth v. Azar, 435 Mass. 675, 687 (2002), S.C., 444 Mass.

72 (2005).

First, in assessing the significance of the errors in the

context of the trial -- i.e., the relatively9 increased

likelihood that the jury might discredit the defendant's

testimony -- we note that her testimony provided little detail

regarding the circumstances of the stabbing. The defendant did

not describe the victim's and defendant's movements between the

time that the victim allegedly grabbed the defendant's hand and

neck and the time of the stabbing. Moreover, the defendant

explicitly testified that she "d[id]n't know what happened"

9 The defendant's credibility was otherwise impeached
through proper cross-examination. As a representative example,
the Commonwealth demonstrated inconsistencies between the
alleged incident between the victim and defendant on July 4,
2010, and photographic evidence taken shortly thereafter.

16
during the encounter. Therefore, the defendant's testimony,

even if credited, was minimally probative of the following

avenues through which the Commonwealth could disprove self-

defense: (1) the reasonableness of her belief of the immediacy

of the danger of death or serious bodily harm; and (2) the

defendant's use or attempt to use all proper and reasonable

means under the circumstances to avoid physical combat before

resorting to the use of deadly force. See Commonwealth v. Toon,

55 Mass. App. Ct. 642, 652 (2002).

This, together with the strength of the Commonwealth's

case, leads to our conclusion that the questions did not create

a substantial risk of a miscarriage of justice. In particular,

the Commonwealth's arterial spray evidence strongly suggested

that the defendant stabbed the victim from either the side or

behind, undercutting the defendant's self-defense claim.10

10The Commonwealth's expert medical examiner, Dr. Andrew
Elin, testified that the blood from the victim's neck wound
would have sprayed "in vaguely a forward direction." The
defendant's neighbor testified that when the defendant came to
the neighbor's door seeking help, she did not see any blood on
the defendant. The defendant's expert forensic scientist,
Stuart James, testified that he "did see an arterial squirt
pattern [on the defendant's shirt], but [was] not sure when and
where that got there . . . it certainly occurred when they were
face to face." However, on cross-examination, James testified
that he relied only on "the bloodstain evidence at the scene and
the bloodstain evidence on the various physical evidence
objects"; he did not consider the testimony of the defendant's
neighbor, including that the defendant "pounced on" the victim
while he was lying in the bathroom, bleeding out, in a pool of
his own blood.

17
d. The defendant's past drug use. Next, the defendant

claims that the prosecutor improperly questioned Laramee and

Renee Johnson, the defendant's sister, about the defendant's

past drug use, which had no relevant purpose other than to

undermine the defendant's character. As the defendant did not

object, we review for whether any error created a substantial

risk of a miscarriage of justice. Alphas, 430 Mass. at 13. We

discern no error.

Defense counsel's cross-examination of Laramee opened the

door to the information elicited from Laramee and Johnson.11 See

Commonwealth v. Otsuki, 411 Mass. 218, 236 (1991). "For this

reason, the defendant's claim of prejudice is highly suspect.

Even assuming, however, that the testimony prejudiced the

defendant in some manner, such prejudice did not create a

substantial risk of a miscarriage of justice in this case." Id.

Laramee's and Johnson's testimony was cumulative of other

properly admitted evidence of the defendant's history of drug

use.

e. The November 18, 2003, theft report. Next, the

defendant claims that the prosecutor improperly asked the

Laramee testified on cross-examination that the defendant
11

had left him in 2006 to go to a rehabilitation facility.
Johnson took the defendant to the facility on that occasion.
Additionally, Laramee testified that the defendant was addicted
to pain medication, and that the use of cocaine was part of the
relationship between him and the defendant.

18
defendant whether she recalled that, on November 18, 2003,

Brandon Fernandes, the defendant's ex-husband, "call[ed] the

police on [her] for going into his apartment and taking items

from him." Specifically, the defendant contends that "th[is]

bald allegation was hearsay," and, citing to Commonwealth v.

Dew, 443 Mass. 620, 628 (2005), "such allegations not resulting

in conviction . . . are inadmissible." At trial, the defendant

objected to this line of questioning on relevancy grounds. "As

the grounds . . . raised on appeal differ from the objection

made at trial, the standard of review that applies to this claim

is whether there was a substantial [risk] of a miscarriage of

justice." Commonwealth v. Almeida, 479 Mass. 562, 568 (2018).

We need not decide the question's propriety, as any error

did not create a substantial risk of a miscarriage of justice,

where such evidence was cumulative of Lord's testimony that the

defendant "stole my belongings from her ex -- from her apartment

that her and her ex-husband shared." See Commonwealth v. Ortiz,

487 Mass. 602, 611 (2021).

f. The defendant's loyalty. Next, the defendant claims

that the prosecutor improperly asked the defendant about her

loyalty to the victim and Laramee for the purpose of

"denigrat[ing]" the defendant's character as "promiscuous."12

12The prosecutor asked the defendant, "Now, were you loyal
to [the victim] when you cheated on him with [Laramee]? . . .

19
The defendant did not object, so we review for whether any error

created a substantial risk of a miscarriage of justice. Alphas,

430 Mass. at 13.

The defendant testified that she had told police on the

night of the stabbing that she was loyal to the victim.

Contrary to the defendant's assertion, the prosecutor's line of

questioning was permissible for the purpose of impeaching the

defendant's credibility. See Commonwealth v. Dabney, 478 Mass.

839, 859, cert. denied, 586 U.S. 846 (2018) ("A witness

generally may be impeached by contradiction with [1] the

witness's own prior, inconsistent statement; [2] internal

inconsistency in the witness's testimony; or [3] other

conflicting evidence"). We discern no error, let alone one

creating a substantial risk of a miscarriage of justice.

g. Prior acts of aggression. Next, the defendant claims

that the Commonwealth improperly questioned the defendant and

Laramee about "prior acts of aggression" by the defendant for

the purpose of establishing the defendant's propensity for

violence.13

And were you loyal to [Laramee] when you were cheating on him
with [the victim]?"

13Specifically, the defendant takes issue with the
following: (1) the prosecutor's question to the defendant
whether, in 2003, Brandon Fernandes "called the police on [her]
for slapping him"; (2) Laramee's testimony that the defendant
"stabbed [his] dining room chair" with a knife; (3) Laramee's

20
Even if prior bad act evidence is admissible to show the

defendant's motive, intent, or state of mind, "the evidence will

not be admitted if its probative value is outweighed by the risk

of unfair prejudice to the defendant." Commonwealth v. Foreman,

101 Mass. App. Ct. 398, 401 (2022), quoting Bryant, 482 Mass. at

734-735. The evaluation of evidence, both for its relevance and

its prejudicial impact, is committed to the sound discretion of

the trial judge and will not be disturbed absent palpable error.

Rosario, 460 Mass. at 192-193.

As discussed, supra, the defendant claimed to be a victim

of intimate partner violence in support of her theory of self-

defense. We do not discern palpable error in the judge's

determination that the aforementioned testimony was "relevant to

[the defendant's] reaction in domestic relationships, which

[wa]s at the heart of the defense raised," as well as to her

"awareness of intimate partner violence, her ability to extract

herself from it, to call police, to reach out to authorities,

[and] to react to it." Nor do we discern palpable error in the

judge's determination that the probative value of such testimony

was not outweighed by its prejudicial impact, particularly in

light of the judge's clear limiting instruction during his final

testimony that the defendant scratched his neck during an
altercation; and (4) Laramee's testimony that, during a separate
altercation, the defendant bent his thumb backwards, dislocating
it.

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charge. The judge specified the limited purposes for which the

prior bad acts evidence was admitted, and emphasized that the

jury could not consider that evidence as proof that the

defendant is a person of bad character with a propensity to

commit criminal acts. See Commonwealth v. Donahue, 430 Mass.

710, 718 (2000) ("We presume that a jury understand and follow

limiting instructions, . . . and that the application of such

instructions ordinarily renders any potentially prejudicial

evidence harmless").

h. The nude photographs. Next, the defendant claims that

the judge erred in admitting nude and sexually explicit

photographs of the defendant found on the victim's cell phone,

which she contends "had zero 'informational value' . . . [and]

simply tended to degrade [the defendant] before the jury." The

defendant objected to the introduction of such evidence, so we

review for prejudicial error. See Cruz, 445 Mass. at 591.

In light of the defendant's claims of self-defense and

intimate partner violence, we discern no error in the judge's

exercise of his broad discretion in determining that the

photographs were relevant to the nature of the relationship

between the victim and defendant, as well as to the frequency of

the alleged domestic violence, given the lack of bruising or

injuries displayed in the photographs. See Commonwealth v.

Pina, 430 Mass. 66, 78 (1999), quoting Commonwealth v. Tobin,

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392 Mass. 604, 613 (1984) ("We accord a trial judge 'substantial

discretion in deciding whether evidence is relevant, and whether

the prejudicial implications of such evidence outweigh its

probative value'"). "To the extent that there was a risk of

unfair prejudice to the defendant, the judge provided a limiting

instruction on this issue both at the time the evidence was

admitted and during the final charge." Commonwealth v. Samia,

492 Mass. 135, 149 (2023). We presume that the jury followed

the judge's limiting instructions. Bryant, 482 Mass. at 737.

i. The 2011 Las Vegas trip. Next, the defendant claims

that the Commonwealth asked the defendant three questions about

her 2011 trip to Las Vegas for the sole purpose of degrading the

defendant's character. The defendant did not object to such

questions, so we review for whether any error created a

substantial risk of a miscarriage of justice. Alphas, 430 Mass.

at 13.

First, the defendant contends that the prosecutor

improperly asked, "when you were in Vegas, you started sending

[the victim] nude photographs of your vagina, isn't that

correct?" We disagree that the question was improper. This

question was within the scope of permissible cross-examination,

as defense counsel raised the subject on direct examination.

See Commonwealth v. Balboni, 89 Mass. App. Ct. 651, 662 (2016).

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Second, the defendant contends that the prosecutor

improperly insinuated the defendant's dishonesty and bad

character in asking, "Vegas is known as Sin City, isn't that

correct? . . . A lot of drinking, a lot of partying, isn't that

correct?" We need not decide the propriety of these questions,

as any error did not create a substantial risk of a miscarriage

of justice. The resulting testimony was brief and not repeated

in closing, and the defendant's answers merely addressed the

general, public perception of Las Vegas.

Third, the defendant contends that the prosecutor exceeded

the scope of permissible cross-examination in asking the

defendant whether she "like[s] to masturbate," to which the

defendant answered, "I can't have orgasms, to be honest."

The question was improper. "Trials are a search for truth,

not socialized stonings." Commonwealth v. Murphy, 57 Mass. App.

Ct. at 589. Where, as here, "it is 'extremely unlikely' that

the prosecutor reasonably believed a helpful answer would be

forthcoming, . . . or when the question's likely impact is

simply to inflame or degrade, then the question goes 'beyond the

bounds of proper cross-examination,' . . . and should not be

asked." Id. at 590. That being said, the error did not create

a substantial risk of a miscarriage of justice; the resulting

testimony was innocuous, brief, and not repeated in closing.

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j. The alleged intrafamilial affair. Next, the defendant

claims that the prosecutor improperly cross-examined the

defendant's sister, Renee Johnson, about an alleged affair

between Johnson's mother and ex-boyfriend, which had no relevant

purpose other than to "degrade [the defendant] by association."

The defendant did not object, so we review for whether any error

created a substantial risk of a miscarriage of justice. See

Alphas, 430 Mass. at 13. We need not decide the propriety of

the question, as any error did not create a substantial risk of

a miscarriage of justice; the resulting testimony was brief, not

repeated in closing, and did not involve the defendant.

4. The Commonwealth's closing argument. a. Factual

basis. The defendant next claims that the Commonwealth, in its

closing argument, made the following statement without a

sufficient factual basis: "This case is about the defendant

. . . taking a knife and stabbing [the victim] not in front of

him, but from behind or the side when he wasn't looking and

killing him." Specifically, the defendant contends that the

evidence does not support the Commonwealth's inference that the

stabbing occurred from either the side of or behind the victim,

as the medical examiner testified that the wound would cause an

arterial spray "in vaguely a forward direction," and the defense

expert testified that he saw arterial spray on the defendant's

shirt. As the defendant did not object to the Commonwealth's

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argument, we review to determine if there was error, and if so,

whether it created a substantial risk of a miscarriage of

justice. See Commonwealth v. Chambers, 93 Mass. App. Ct. 806,

821 (2018).

"The prosecutor is entitled to argue the evidence and fair

inferences to be drawn therefrom." Commonwealth v. Johnson, 429

Mass. 745, 750 (1999), quoting Commonwealth v. Paradise, 405

Mass. 141, 152 (1989). "The inferences suggested by the

prosecutor need only be reasonable and possible and need not be

necessary or inescapable." Commonwealth v. Dinkins, 415 Mass.

715, 725 (1993).

Here, sufficient blood spray evidence existed in the record

to reasonably infer that the defendant stabbed the victim from

the side or behind. See note 10, supra. The Commonwealth's

argument was therefore supported by the evidence and the fair

inferences to be drawn therefrom.

b. Reliance on expert testimony. Next, the defendant

claims that the Commonwealth, in its closing argument,

erroneously summarized Dr. Adams's opinion that the victim was a

victim of intimate partner violence, based in part on the

defendant's fits of rage.

We discern no error in this aspect of the Commonwealth's

closing. Dr. Adams's testimony was in evidence, albeit in

error, as discussed, supra, and the Commonwealth accurately

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summarized such testimony. See Johnson, 429 Mass. at 750

(applying substantial likelihood standard).

c. Fits of rage. Finally, the defendant claims that the

Commonwealth, in its closing argument, improperly referred to

the defendant's "fits of rage" to prove that she acted in

conformity with a character trait for violence.

Contrary to the defendant's assertion, the prosecutor

explained to the jury that he was "only suggesting [the fits of

rage] to you as you consider the defendant's state of mind for

what happened on May 7th." See Gonzalez, 469 Mass. at 420

(prior bad acts admissible if relevant to show defendant's

motive, intent, or state of mind). To the extent the jury could

have misinterpreted the purpose of such evidence, the judge

mitigated any undue prejudice with a limiting instruction on the

manner in which the jury could properly consider the defendant's

prior bad acts. See Donahue, 430 Mass. at 718.14

Judgment affirmed.

By the Court (Blake, C.J.,
Meade & Grant, JJ.15),

Clerk

Entered: April 30, 2025.

14For the reasons discussed, supra, to the extent that
errors occurred, we conclude that there was no cumulative error
necessitating a new trial.

15 The panelists are listed in order of seniority.

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