Commonwealth v. Matthew Lariviere.

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-1035

COMMONWEALTH

vs.

MATTHEW LARIVIERE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the

defendant, Matthew Lariviere, was convicted of voluntary

manslaughter.1 He argues on appeal that an instruction regarding

the use of excessive force in self-defense constituted error

that created a substantial risk of a miscarriage of justice, and

that various comments by the prosecutor in closing argument

warrant reversal of the conviction and a new trial. We affirm.

1A grand jury indicted the defendant for murder,
carjacking, two counts of armed robbery, and negligent operation
of a motor vehicle. The judge allowed the defendant's pretrial
motion to sever the murder charge from the other charges, and
the jury returned a guilty verdict on the lesser included
offense of voluntary manslaughter. The defendant subsequently
pleaded guilty to the remaining charges.
Background. In 2019, the defendant, the victim,2 and others

lived in a "homeless encampment" (camp) in New Bedford in a

wooded area behind a general supply building. On August 5,

2019, the victim was upset because he could not locate a bag

containing his belongings. Believing that his bag had been

stolen, he threatened to "kill everybody" at the camp and

threatened to "stab everybody." Later that night, Troy Serpa,

who lived at the camp and knew both the victim and the

defendant, heard someone say, "Oh God," followed by a gargling

sound. Serpa then saw the defendant "running out of the bushes

after having a fight," and the defendant "said he had stabbed

[the victim] six times, once in the throat."

The next morning the defendant told Serpa that the victim's

body was "[i]n a tarp," and asked Serpa to help him "get rid" of

the victim's body. The defendant subsequently asked Kevin

Rioux, Serpa's cousin who also stayed at the camp, for some

bleach. Rioux purchased bleach and brought it back to the camp.

That same day, August 6, 2019, Rioux reported that there was "a

body in the woods." Police officers searched the camp, but did

not find a body.

2 The victim, Robert Jones, also went by the name
"Lawrence."

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Also on August 6, 2019, police officers were dispatched to

look for a 2005 gray Toyota Corolla. They located the vehicle

and attempted to effectuate a stop, but the vehicle sped away.

After chasing the vehicle and then the driver on foot, officers

stopped and arrested the driver who was identified as the

defendant. In the Toyota, officers located a "pink-camouflage

knife" on the driver's seat. Testing confirmed the presence of

blood in the "recess area" of the knife "where the blade goes

into the handle."

On August 8, 2019, officers found the victim's body in a

"trash area" in the camp located underneath tents, blankets, and

a tarp. A knife protruded from the side of the victim's neck.

The body showed signs of decay and had "maggots on it." On

August 9, 2019, officers searched the area of the camp where the

defendant lived, and found cleaning materials including a bottle

of bleach that "was not full." They also found a bag containing

clothing with red and brown stains and a "camouflaged-handled

knife." The bag had a strong odor of bleach. Finally, officers

found a steak knife with a black-colored handle inside the

defendant's tent.

The medical examiner observed at least 137 "sharp-force

injuries" on the victim's body. These included "incised" and

"stabbed" wounds all over the victim's body including his head,

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arms, neck, legs, and torso. Various wounds penetrated his

lung, liver, and heart. Some wounds were wider than others,

some deeper than others. The medical examiner opined that

"[m]ultiple sharp-force injuries" caused the victim's death, but

could not discern which injuries, if any, may have occurred post

mortem.

The defendant testified at trial that he acted in self-

defense after the victim entered his tent and attacked him. He

further claimed that he was experiencing drug-induced paranoia,

had been on a "crack bender," and had not slept in days. A

defense expert testified that the defendant suffered from a

substance-induced psychotic episode exacerbated by diabetes at

the time of the homicide, which resulted in irrational

behaviors.

Discussion. 1. Jury instruction. The defendant

acknowledges that he "undeniably used excessive force by

stabbing [the victim] over 100 times." He contends, however,

that the judge's instructions on self-defense were inadequate

because he failed to tell the jury that the use of excessive

force must cause the death for there to be a crime. The

defendant relies on Commonwealth v. Carlino, 429 Mass. 692, 694

(1999), to support the proposition that the jury must have been

instructed that if the defendant used excessive force in an

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otherwise appropriate exercise of self-defense, and if death

resulted from that use of excessive force, he should be found

guilty of manslaughter; but if the excessive force did not cause

the death, then there could be no crime. Otherwise stated, the

defendant argues that the jury could have found that he killed

the victim with one or two blows in response to the victim's

attack, and that he inflicted the remaining excessive blows post

mortem. The defendant accordingly argues that a properly

instructed jury could have determined that he acted in proper

self-defense, by concluding that the excessive force did not

cause the victim's death.

In the present case, we are not persuaded. While we do not

exclude the possibility that on a different trial record the

evidence may warrant an instruction along the lines now

suggested by the defendant on appeal, we hold that on the

present record such an instruction was neither required nor

warranted.

We first note that the defendant did not object at trial to

the judge's instructions on self-defense, excessive force, or

manslaughter. Indeed, defense counsel advised the judge that he

was content with the jury instructions.3 Accordingly, we review

3 In response to a subsequent jury question asking the judge
to, inter alia, "go over self-defense," the judge reinstructed
the jury on self-defense, the use of excessive force in self-

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his claim to determine first whether there was error, and if so,

we then inquire whether the error created a substantial risk of

a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass.

8, 13 (1999). A substantial risk of a miscarriage of justice

exists only when an appellate court has "a serious doubt whether

the result of the trial might have been different had the error

not been made" (citation omitted). Commonwealth v. Dirgo, 474

Mass. 1012, 1016 (2016).

Here, we discern no error. The defendant's theory that he

killed the victim with one or two blows and inflicted the

remaining 135 or 136 blows post mortem "is entirely

speculative." Commonwealth v. Pina, 481 Mass. 413, 424 (2019).

The evidence at trial provides nothing to support the claim that

the victim died from one or two initial stab wounds, and "a

judge should not instruct the jury 'on a hypothesis not

supported by the evidence.'" Id. at 422, quoting Commonwealth

v. Vanderpool, 367 Mass. 743, 746 (1975). That the medical

examiner could not determine when the blows were struck, or the

timing of each injury, does not alter our conclusion that the

theory now advanced on appeal constitutes speculation

unsupported by evidence at trial. To the contrary, the medical

defense, manslaughter, reasonable doubt, and the presumption of
innocence. Here again, the defendant did not object to these
instructions.

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examiner opined at trial, to a reasonable degree of medical

certainty, that "[m]ultiple sharp-force injuries" caused the

victim's death. Thus, to the extent that there was evidence at

trial regarding the cause of death, it ran contrary to the

defendant's appellate claim.

Furthermore, as the defendant acknowledges, the judge's

comprehensive instructions tracked the Supreme Judicial Court's

Model Jury Instructions on Homicide 21-40 (2018) almost

verbatim. Those instructions conveyed that the Commonwealth had

the burden to prove beyond a reasonable doubt that the defendant

caused the victim's death; that the defendant did not act in

proper self-defense; and that where the Commonwealth proved the

requisite elements, but the defendant used more force than was

reasonably necessary, then the defendant shall be found guilty

of manslaughter. The instructions were clear and accurate, and

we presume the jury followed them. See Commonwealth v. Morgan,

422 Mass. 373, 379-380 (1996). See also Commonwealth v.

Marinho, 464 Mass. 115, 122 (2013) ("We evaluate jury

instructions as a whole, and interpret them as would a

reasonable juror. . ." and "do not require that judges use

particular words, but only that legal concepts are properly

conveyed").

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Finally, even assuming arguendo that the judge should have

provided the instruction now requested on appeal, the absence of

that instruction did not create a substantial risk of a

miscarriage of justice. In view of the strength of the

Commonwealth's case and the comprehensive jury charge, the

alleged error was not "sufficiently significant in the context

of the trial to make plausible an inference that the [jury's]

result might have been otherwise but for the error" (citation

omitted). Alphas, 430 Mass. at 13. Cf. Commonwealth v. Torres,

420 Mass. 479, 492-493 (1995) (no substantial likelihood of

miscarriage of justice where "record shows that the jury's

verdict of deliberately premeditated murder in the first degree

'would have been substantially unsullied' by any alleged error

in the judge's instructions concerning excessive force in self-

defense" [citation omitted]).

2. Closing argument. The defendant claims that various

errors in the prosecutor's closing argument constituted

prejudicial error, warranted a mistrial, or created a

substantial risk of a miscarriage of justice. The claims are

unavailing.

We consider the challenged statements "in the context of

the entire closing," the judge's instructions to the jury, and

the evidence at trial. Commonwealth v. Martinez, 476 Mass. 186,

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198 (2017). "A new trial will be ordered only in the

extraordinary situation where, after such a review, we are left

with uncertainty that the defendant's guilt has been fairly

adjudicated" (citation omitted). Commonwealth v. Azar, 435

Mass. 675, 687 (2002).

We begin with the preserved claims on appeal. First, the

defendant objected at trial to the prosecutor's contention that

"[t]here were multiple knives" in evidence and that the jury

could "infer from the holes in [the victim's] body, the size of

the wounds the medical examiner testified about in [] depth[,]

that more than one knife was potentially used." The defendant

claims that these statements were incorrect because the medical

examiner testified that she could not discern the type, length,

or width of the knife that was used to kill the victim and could

not testify as to whether more than one sharp-force instrument

was used. He further claims that the prosecutor's statements

were highly prejudicial because the notion that the defendant

somehow paused to "change knives suggests a level of malice and

bloodthirstiness not apparent elsewhere in the record and which

was sure to turn the jury against the [defendant]." In view of

the recovery of multiple knives (one from the victim's neck, one

from the bag with the bloody clothing and bleach, and one in the

vehicle in which the defendant fled from police officers), the

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medical examiner's testimony that she could not "rule out

whether more than one [knife] was used," and the evidence of

differing measurements for different injuries to the victim,

"[s]ome wider than others, some deeper than others," the

prosecutor's argument constituted a reasonable inference to draw

from the evidence. See Commonwealth v. Goddard, 476 Mass. 443,

449 (2017) (in closing argument prosecutor "may analyze the

evidence and suggest what reasonable inferences the jury should

draw from" it; inferences need only be reasonable and possible

not necessary and inescapable). We further note that the

defendant argues that the alleged misstatement was prejudicial

in that it suggested a higher level of malice than justified by

the evidence. This claim of prejudice is undermined where, as

here, the jury convicted the defendant of manslaughter, a

killing without malice. See Commonwealth v. Acevedo, 446 Mass.

435, 443 (2006) ("Voluntary manslaughter is an unlawful killing

arising not from malice. . ." [quotation and citation omitted]).

The defendant also objected to the prosecutor's argument to

the effect that the defendant blamed others for the killing and

the circumstances leading to the killing, using the statement

that "it was someone else's fault." The defendant contends that

the prosecutor misrepresented his testimony at trial. We

disagree. There were various instances of conflicting testimony

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at trial where the defendant's testimony could be interpreted as

shifting responsibility toward others. For example, the

defendant testified that Rioux "went to go buy bleach" and

returned with it yet the defendant denied that he had asked

Rioux to do so. He also testified that Rioux, in effect, took

control of disposing of the victim's body. This testimony

conflicted with other evidence at trial. Viewed in context, the

prosecutor's statements constituted a fair summary of the

evidence. See Goddard, 476 Mass. at 449.

In addition, the defendant objected to the following

argument by the prosecutor:

"The presumption of innocence does apply to the defendant,
sure. But just like any other witness that takes that
stand you get to judge their credibility. He's not
presumed truthful. He doesn't get extra protection when he
testifies. He gets the same treatment as everyone else who
testifies. The judge is going to instruct you to look, how
does a witness behave on the stand? You got to see [the
defendant]. You remember. Does his memory seem accurate?"

While it may have been preferable to avoid the phrase "[h]e's

not presumed truthful," we do not agree that this statement

equated to a direct attack on the presumption of innocence.

Viewed in context, the prosecutor did not err by urging the jury

to evaluate the defendant's credibility as a witness. See

Commonwealth v. Wright, 107 Mass. 403, 404 (1871) (jury

instruction rightly conveyed that "there is no presumption

either way as to the truthfulness of a defendant's testimony,"

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"that [defendant's] testimony was to be considered and weighed

by [jurors], taking all the circumstances of the case and all

the other evidence into consideration," and that jurors were to

give "such weight to the testimony as in their judgment it ought

to have"). We also note that the judge's instructions on the

presumption of innocence were clear, forceful, and unequivocal.

We discern no error and, in any event, no prejudice resulting

therefrom.

The defendant further claims that various statements in the

Commonwealth's closing argument constituted error that created a

substantial risk of a miscarriage of justice. Two of these

contentions warrant comment.4

First, the prosecutor argued that the disposal of the

victim's body was inhumane; that the defendant covered the

victim's body in a tarp, and then "put all the bloody clothing

in trash and covered it in bleach." These comments were not

improper. However, the prosecutor then stated that Serpa

"didn't want to see that. [Serpa] didn't want to touch [the

victim]. He was covered in maggots surrounded in trash." In a

trial charging first degree murder, the prosecutor could comment

4 The remaining arguments regarding the Commonwealth's
closing argument involve unpreserved claims where there was no
error. Even assuming arguendo that there was a minor error,
nothing came close to creating a substantial risk of a
miscarriage of justice.

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on the callous disposal of the victim's body. See Commonwealth

v. Gardner, 479 Mass. 764, 775-776 (2018). Such evidence was

relevant to show, inter alia, consciousness of guilt, malice,

and extreme atrocity or cruelty. However, it was improper to

argue that a witness did not want to see or touch a dead body

covered in maggots. That comment was not relevant to the above-

mentioned issues at trial or to the critical issue of self-

defense.

Second, we agree that the prosecutor erred by stating that

the defendant testified that upon entering the defendant's tent

the victim said, "I'm not here for my bags." The defendant's

testimony does not reflect that statement. Nonetheless, these

errors, viewed in the context of the closing arguments as a

whole and in view of the evidence at trial, did not create a

substantial risk of a miscarriage of justice. The judge

instructed the jury five times that closing arguments are not

evidence. He further instructed the jury that the defendant is

entitled to a verdict based solely on the evidence and not based

on pity or sympathy for the deceased; and that the jury "can't

find facts or base [its] decision on sympathy, anger, passion or

prejudice, or pity for or against either side in this case."

See Commonwealth v. Anderson, 445 Mass. 195, 209-210 (2005)

(judge "mitigated any potential prejudice" by instructing

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jurors, inter alia, "not to base their verdicts on any sympathy

or emotion"). See Commonwealth v. Hernandez, 473 Mass. 379, 392

(2015) ("jury are presumed to follow instructions").

That the defendant did not object to the prosecutor's

statements at trial also "tends to support the inference that

the prosecutor's misstatement was not so egregious and

prejudicial as [he] now claims." Commonwealth v. Maynard, 436

Mass. 558, 571 (2002). Of further note, "[w]e ascribe a certain

level of sophistication to the jury, and, [on this record], have

little doubt that they would not have been swayed by this

[misstatement]" (quotation and citation omitted). Commonwealth

v. Kapaia, 490 Mass. 787, 805 (2022). We also note the

overwhelming evidence supporting the jury's verdict. Finally,

the jury acquitted the defendant of murder and found the

defendant guilty of the lesser included charge of voluntary

manslaughter. See Commonwealth v. Lassiter, 80 Mass. App. Ct.

125, 132 (2011) (that jury acquitted defendant of certain

charges "suggests that they were not . . . swayed by the

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prosecutor's excesses"). Therefore, appellate relief is not

warranted.

Judgment affirmed.

By the Court (Neyman,
Ditkoff & Englander, JJ.5),

Clerk

Entered: November 14, 2025.

5 The panelists are listed in order of seniority.

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