Commonwealth v. Soi Ket Dang.

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

22-P-684

COMMONWEALTH

vs.

SOI KET DANG.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Soi Ket Dang, was indicted for murder in the

first degree in connection with the stabbing death of Marissa

Randall. Following a jury trial in the Superior Court, the

defendant was found guilty of murder in the second degree.

Following a nonevidentiary hearing, a second judge (motion

judge) denied the defendant's motion for a new trial. In this

consolidated appeal, the defendant argues that 1) the motion

judge erred in denying his motion for new trial based on

ineffective assistance of counsel, 2) the trial judge erred in

admitting a video recording depicting Randall performing a sex

act on the defendant, 3) the evidence was insufficient to prove

the absence of heat of passion induced by sudden combat, and 4)

cumulative errors and the Commonwealth's closing argument denied

him a fair trial. We affirm.
Background. We summarize the facts that the jury could

have found while reserving certain facts for later discussion.

The defendant first met Randall when he initiated contact with

her online. On November 10, 2015, they met in person. In

exchange for sex, the defendant gave Randall a tattoo and

approximately $120. Less than a week later, on November 16,

2015, the defendant contacted Randall via text message and

offered to pay her $350 in exchange for one hour of her time.

The defendant later changed the arrangement to $350 for thirty-

five minutes; Randall ultimately agreed.

The defendant picked up Randall and took her to his

apartment. Randall asked the defendant if he wanted to make a

video recording of her performing oral sex on him; she planned

to sell the video recording for $100. The defendant agreed.

After they made the video recording and had sex again, the pair

argued over the amount of money that the defendant owed Randall.

Ultimately the defendant fatally stabbed Randall with a large

knife approximately twenty times.

The defendant went to work the next day, leaving Randall's

body in his apartment. While at work, the defendant was

contacted via text message by S.W., a young woman he knew from a

website. S.W. asked to stay with the defendant. He agreed, but

said that he was "uncomfortable bringing [her] back to his house

because he had done something bad," eventually admitting to S.W.

2
that he killed Randall. Nevertheless, S.W. accompanied the

defendant to his apartment. During this time Halifax police

were looking for S.W. They "pinged" her location from her

tablet and found her at the defendant's apartment. The police

eventually discovered Randall's body in a partially opened

closet, wrapped in a rug.

The defendant was handcuffed, provided his Miranda rights,

and brought to the police station, where he made a statement. A

redacted version of the recorded statement was admitted at

trial. The defendant told investigators that a prostitute that

he met online was in the rolled up rug. He said that they

argued over money, Randall became upset, and said that she

needed to get home. The defendant felt that Randall was

"wasting time" making the video recording, and he became

frustrated because she was "rush[ing] [him]." He then offered

to give Randall "$80 or $60" rather than the previously agreed

amount of $350. He said that they continued to argue, and

Randall pushed him because "she wanted [him] to pay her." He

eventually placed Randall in a headlock; she "tr[ied] to get

away from [him]" by elbowing him. The defendant said that

Randall "[was] screaming 'stop' and 'why are you doing this.'"

He then grabbed a knife, and stabbed Randall. Once he realized

that he had killed her, the defendant wrapped Randall's body in

plastic tablecloths, zip tied her legs, and dragged her body

3
into a closet. When asked, the defendant said that the knife

was in a bucket next to the refrigerator. The defendant had

some rug burns, but did not mention any other injuries, nor did

the police observe any.

Investigators executed a search warrant on the defendant's

apartment and car. Among other things, they found a knife that

was later determined to have Randall's deoxyribonucleic acid on

it, a Samsung phone, and a ZTE phone. The video recording of

Randall performing oral sex on the defendant was found on the

ZTE phone along with text messages between the two.

The defendant's theory at trial was that he stabbed Randall

in self-defense. He testified that when Randall first arrived

at his apartment, she seemed "happy because [he] said yes to

helping her make the video." According to the defendant, after

making the video recording and having sex, they argued over

money. The defendant claimed that Randall was going through his

personal belongings and demanding money, although he did not

tell investigators that when he gave his statement. The

defendant testified that Randall initiated the confrontation by

shoving him, which prompted him to restrain her in a bear hug,

although he stated that he did not have concerns about his

safety at this point.

For the first time at trial the defendant claimed that

Randall picked up a screwdriver and "jabbed" him on his right

4
knee with it. 1 He then ran and grabbed a knife, pulled it out of

its sheath, and "waved it in front of [Randall] . . . doing [a]

slashing motion in the air." He said Randall came at him with

the screwdriver and "advanced and then retreat[ed]." Because

Randall "got so close," the defendant ran, grabbed her, placed

her in a second bear hug, and repeatedly stabbed her because she

kept coming at him. The defendant said that he held Randall

down with the weight of his body while he strangled her to keep

the neighbors from hearing her screams.

The defendant called Dr. Carl Dahlberg, an emergency room

physician who had reviewed Randall's toxicology report, as a

witness. Dahlberg confirmed that amphetamines and marijuana

were present in Randall's system, that the level of amphetamines

was "pretty high," and that they can produce restlessness,

agitation, mania, impulsiveness, and psychosis.

Discussion. 1. Ineffective assistance of counsel. The

defendant contends that the motion judge erred in denying his

motion for new trial based on claims of ineffective assistance

of counsel on two grounds: failing to move for a mistrial, and

failing to timely investigate an abuse prevention order issued

1 During execution of the search warrant, investigators did not
recover a screwdriver in the defendant's apartment. They did
find screwdrivers in the defendant's car, although none had
visible stains on them.

5
pursuant to G. L. c. 209A (209A order) taken out by Randall's

former boyfriend on behalf of their infant son.

We review the denial of a motion for new trial "only to

determine whether there has been a significant error of law or

other abuse of discretion." Commonwealth v. Duguay, 492 Mass.

520, 531 (2023), quoting Commonwealth v. Sanchez, 485 Mass. 491,

498 (2020). To prevail on a claim of ineffective assistance of

counsel, a defendant must show that trial counsel's

representation fell "measurably below that which might be

expected from an ordinary fallible lawyer," and that the

defendant was "likely deprived . . . of an otherwise available,

substantial ground of defence" as a result. Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). "If a defendant challenges

the 'tactical or strategic decisions[]' of trial counsel, he

must establish them as 'manifestly unreasonable.'" Commonwealth

v. Shanley, 455 Mass. 752, 768 (2010), quoting Commonwealth v.

Montanez, 410 Mass. 290, 295 (1991). As is the case here, where

"the motion judge did not preside at the trial, we defer only to

the trial judge's credibility determinations and 'regard

ourselves in as good a position as the motion judge to assess

the trial record.'" Commonwealth v. Wilson, 486 Mass. 328, 334

(2020), quoting Commonwealth v. Wright, 469 Mass. 447, 461

(2014).

6
a. Failure to move for a mistrial. The defendant contends

that trial counsel was ineffective because he did not move for a

mistrial based on a police officer's unsolicited testimony that

S.W. reported to police that she was "drugged and forced to have

sex." Prior to trial, in response to the defendant's motion in

limine, the prosecutor made a proffer of S.W.'s anticipated

testimony. The trial judge permitted S.W. to testify but ruled

that any reference to child exploitation and S.W.'s age were

excluded. Thereafter S.W. testified consistent with the trial

judge's ruling. However, a police officer provided unsolicited

testimony that S.W. reported "she was drugged and forced to have

sex," which the prosecutor promptly interrupted. 2 The defendant

2 Specifically, the defendant pointed to this exchange:

"Q. Did you tell the defendant what statements [S.W.] had
made --

"A. Yes.

"Q. -- regarding an individual in his home?

"A. Yes.

"Q. And what were those statements specifically about that
individual?

"A. The statements that were made [S.W.] passed on was
that she was drugged and forced to have sex --

"Q. Not about her, just about the individual, the separate
individual in the home."

7
only challenges trial counsel's failure to move for a mistrial,

not his failure to object in front of the jury.

Trial counsel submitted an affidavit in connection with the

motion for new trial where he averred that he did not move to

strike this testimony in open court, instead intending to move

for a mistrial at sidebar, so as to not call more attention to

this statement. See Commonwealth v. Haley, 413 Mass. 770, 778

(1992). Trial counsel did not so move, and his affidavit did

not explain this inaction. 3 We note that the testimony from the

police officer was brief and unsolicited. It was nonresponsive

to the question asked, was promptly cut off by the prosecutor,

and was not repeated at any point during the remainder of the

trial. 4 As the motion judge observed, "when the jury have been

exposed to inadmissible evidence in violation of a court order,

the judge may rely on a curative instruction to remedy any

prejudice." Therefore, had trial counsel requested a mistrial,

3 The affidavit stated that he "[did] not recall if [he] moved
for a mistrial as a result of that testimony, but [he] d[id] not
know of any reason why [he] would not have, and [he] would
expect that [he] so moved at sidebar at the earliest occasion."
4 The defendant's reliance on Commonwealth v. Lavin, 42 Mass.

App. Ct. 711 (1997), is misplaced. In Lavin, we held that a
defendant was prejudiced by testimony of a prosecution witness
in violation of an agreement between the prosecutor and the
defense attorney when the testimony "destroyed defense counsel's
strategy . . . [and] seriously [undermined] the credibility of a
key defense witness" because the police officer stated that the
witness was arrested as part of the same incident at issue in
the case. Id. at 713. The passing, nonspecific reference to
S.W.'s statement did not undermine the defendant's testimony.

8
the trial judge likely would have denied the motion and opted to

give the jury a curative instruction instead. See Commonwealth

v. Paige, 488 Mass. 677, 684 (2021). In fact, the trial judge

did precisely that in connection with other testimony from this

same witness.

From this we conclude that a request for a mistrial was

likely to fail, and therefore trial counsel was not ineffective

for failing to move for one. See Commonwealth v. Conceicao, 388

Mass. 255, 264 (1983) ("It is not ineffective assistance of

counsel when trial counsel declines to file a motion with a

minimal chance of success"). Moreover, the defendant has failed

to show that "better work might have accomplished something

material for the defense." Commonwealth v. Satterfield, 373

Mass. 109, 115 (1977).

b. Failure to investigate. The defendant next argues that

trial counsel was ineffective for failing to investigate a 209A

order obtained by Randall's former boyfriend (on behalf of their

infant son) that issued against Randall as potential Adjutant

evidence. 5 The affidavit submitted in support of the 209A order

claimed that Randall "threatened to take her life and the life

5 "[W]here a claim of self-defense has been asserted and the
identity of the first aggressor is in dispute . . . trial judges
have the discretion to admit in evidence specific incidents of
violence that the victim is reasonably alleged to have
initiated." Commonwealth v. Adjutant, 443 Mass. 649, 650
(2005).

9
of [her] son." Trial counsel raised this issue for the first

time on the third day of trial. He advised the judge that he

did not believe the 209A order qualified as Adjutant evidence

because it involved "just threats," and that he sought to use

the 209A order as impeachment evidence.

After initially stating that the 209A order was "backdoor

Adjutant material" and therefore inadmissible, 6 the trial judge

revisited his ruling and admitted the 209A order and supporting

affidavit for the limited purpose of impeaching Randall's

mother. The 209A order was admitted and the jury were provided

a limiting instruction as to its use. The judge denied trial

counsel's request to admit the 209A order substantively.

The defendant contends that trial counsel was ineffective

for failing to timely locate and produce evidence contained

within the 209A order prior to trial to support his claim of

self-defense. Trial counsel's affidavit set forth the steps he

took to obtain the 209A order and his efforts to summons

Randall's former boyfriend as a witness. 7 In concluding that

trial counsel was not ineffective, the motion judge noted that a

6 The trial judge stated that he would have admitted the 209A
order as Adjutant evidence if the defense had provided proper
notice. The judge's "thinking out loud" and "musings" from the
bench are not a final ruling. Commonwealth v. Spencer, 465
Mass. 32, 45 & n.18 (2013).
7 This included hiring an investigator to locate Randall's former

boyfriend and securing a court order to obtain the 209A order.

10
threat of future violence, without evidence of follow through,

is not probative of the first aggressor issue of self-defense.

See Commonwealth v. Deconinck, 480 Mass. 254, 267 (2018)

(victim's threats to girlfriend in violation of restraining

order not Adjutant evidence where threats were different in

nature from violence at issue, and no evidence victim followed

through on threats). The judge further concluded that, even if

the 209A order qualified as Adjutant evidence, the defendant

could not establish prejudice under the second prong of

Saferian, 366 Mass. at 96. We agree.

Moreover, the fact that Randall threatened to kill herself

and her infant some twelve days before her murder, and did not

act on it, would not likely have affected the jury's

deliberations as it went to a collateral issue, and thus the

defendant has failed to show "that better work might have

accomplished something material for the defense." Satterfield,

373 Mass. at 115. In any event, the 209A order was admitted to

impeach Randall's mother's testimony about her daughter's

general "bubbly" disposition and demeanor. Because the 209A

order was not probative of the issue of the first aggressor, its

exclusion as Adjutant evidence did not "[deprive] the defendant

of an otherwise available, substantial ground of defence."

11
Commonwealth v. Souza, 492 Mass 615, 636 (2023) (quotation

omitted). 8

2. Admission of video recording. The defendant next

argues that the trial judge abused his discretion by admitting

the video recording depicting Randall performing oral sex on him

as it constituted improper bad act evidence with minimal

probative value and was "severely prejudicial." In general, a

"court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair prejudice."

Mass. G. Evid. § 403 (2023). See Commonwealth v. Bell, 473

Mass. 131, 144 (2015), cert. denied, 579 U.S. 906 (2016).

"Determinations whether proffered evidence is more prejudicial

than probative are entrusted to the trial judge's broad

discretion and are not disturbed absent palpable error."

Commonwealth v. Spencer, 465 Mass. 32, 52 (2013) (quotation

omitted).

Here, the video recording depicted acts that were

inextricably intertwined with the description of the events of

8 For the first time on appeal, the defendant contends that had
his trial attorney timely investigated the 209A order, he would
have discovered out of state records relating to Randall. He
did not, however, include this claim in his motion for a new
trial and does not identify what evidence would be gleaned from
these records. Accordingly, this claim does not rise to the
level of appellate argument, see Mass. R. A. P. 16 (a) (9) (A),
as appearing in 481 Mass. 1628 (2019), and is waived, see Mass.
R. Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501 (2001).

12
the night of the killing as it unfolded, and thus was part of

the "full picture of the events surrounding the crime."

Commonwealth v. Bryant, 482 Mass. 731, 736 (2019). It was "part

of the movie unfolding during the time leading up to" and

immediately preceding the killing. Commonwealth v. Robidoux,

450 Mass. 144, 159 (2007). Indeed, the argument over payment

began after the defendant and Randall made the video recording.

The video recording was also properly admitted to rebut the

defendant's claim of self-defense, see Commonwealth v. Anestal,

463 Mass. 655, 665 (2012), and was probative of the defendant's

motive to kill Randall and of his state of mind. See

Commonwealth v. Oberle, 476 Mass. 539, 551 (2017). It was also

probative of Randall's state of mind and disposition prior to

her death. Commonwealth v. Jaime, 433 Mass. 575, 579 (2001).

This is particularly so where the defendant called an expert

witness who testified that the high levels of amphetamines in

Randall's system could produce "mania or even psychosis,"

consistent with his claim that she was the first aggressor and

that he acted in self-defense because she came at him with a

screwdriver. The video recording, which was made nearly

contemporaneously with the killing, depicted Randall in a calm

and unagitated state thereby rebutting the defendant's

contentions at trial. See Commonwealth v. Howard, 479 Mass. 52,

13
67 (2018) (prior bad act evidence admissible to rebut

defendant's contentions made in course of trial). 9

Furthermore, the judge took steps to minimize the

prejudicial effect of the video recording by ordering redactions

of it, asking potential jurors about their ability to be

impartial when viewing graphic evidence of sexual activity, and

by providing a limiting instruction contemporaneously with the

showing of the video recording and again in his final charge to

the jury. 10 We therefore conclude that the judge did not abuse

his discretion in admitting the video recording and took

appropriate steps to mitigate any prejudicial effect. See

Commonwealth v. Alleyne, 474 Mass. 771, 780 (2016), quoting

Commonwealth v. Amran, 471 Mass. 354, 358 (2015) ("judge may

mitigate prejudice" by "alerting the venire" that graphic

evidence might be shown, asking potential jurors about potential

difficulty with evidence, and "by instructing the jury that they

should not be swayed by emotion").

3. Sufficiency of the evidence. The defendant next argues

that there was insufficient evidence to warrant a conviction of

9 In addition, the prosecutor limited references to the video
recording in closing argument and discussed it in a "technical,
analytical manner, without drama or undue emphasis that might
have released its potential for unfair prejudice." Commonwealth
v. Veiovis, 477 Mass. 472, 487 (2017) (quotation omitted).
10 Trial counsel did not object to the limiting instructions, and

the defendant does not raise their sufficiency on appeal.

14
murder in the second degree because the Commonwealth did not

meet its burden to show the absence of heat of passion induced

by sudden combat. As a result, he argues that his murder

conviction must be reversed or reduced to a conviction of

voluntary manslaughter. 11 In a murder case, if "evidence has

raised the possibility of provocation and voluntary manslaughter

may be at issue," the Commonwealth is required to prove the

absence of provocation. Commonwealth v. Whitman, 430 Mass. 746,

751-752 (2000). "The mitigating circumstance of sudden combat

contemplates a scenario in which two meet, not intending to

quarrel, and angry words suddenly arise, and a conflict springs

up in which blows are given on both sides, without much regard

to who is the assailant." Commonwealth v. Grassie, 476 Mass.

202, 209 (2017), S.C., 482 Mass. 1017 (2019) (quotation

omitted). In reviewing a claim of insufficient evidence, we

evaluate whether, when viewed in the light most favorable to the

Commonwealth, "any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).

11"Voluntary manslaughter is an unlawful killing arising not
from malice, but from . . . sudden passion induced by reasonable
provocation, sudden combat, or excessive force in self-defense"
(quotation omitted). Commonwealth v. Yat Fung Ng, 489 Mass.
242, 257 (2022).

15
According to the defendant, the only evidence as to how the

altercation began was that Randall "shoved" him during an

argument over payment for sex, but the jury were not required to

credit this testimony. See Commonwealth v. Gomez, 450 Mass.

704, 710-711 (2008). He posits that there was insufficient

evidence for the jury to convict him of murder in the second

degree where the evidence with regard to heat of passion as a

result of sudden combat was not "of sufficient force to bring

minds of ordinary intelligence and sagacity to the persuasion of

[guilt] beyond a reasonable doubt." Latimore, 378 Mass. at 677

(quotation omitted). We are not persuaded.

Contrary to his contention, the defendant's statement that

Randall pushed him is not sufficient provocation to explain

stabbing Randall twenty times, and strangling her. This is

particularly true where the jury could have concluded, based on

the lack of injuries to the defendant, that Randall was unarmed.

See Commonwealth v. Brown, 387 Mass. 220, 227 (1982) (unarmed

victim choking defendant with shirt insufficient provocation to

explain stabbing victim twenty-seven times). There was no

evidence that the alleged "wrestling" between the two was the

type of physical contact that would warrant a reasonable person

to doubt that Randall presented a threat of serious harm to the

defendant. See Commonwealth v. Lennon, 463 Mass. 520, 525

(2012).

16
The Commonwealth's evidence included the fact that the

defendant retrieved a knife, removed it from its sheath, and

repeatedly stabbed Randall twenty times -- according to the

defendant -- all in response to being pushed by her. And the

defendant strangled Randall to keep her quiet when she yelled

for him to stop. While "by no means the only conclusion

available to the jury," the Commonwealth presented sufficient

evidence such that a reasonable jury could have found an absence

of heat of passion induced by sudden combat. See Grassie, 476

Mass. at 212 (sufficient evidence of murder even if other

evidence introduced from which jury could have "embraced any of

[defendant's] theories of mitigation").

Although the defendant claimed that Randall stabbed him

with a screwdriver and threw items at him, the sufficiency of

the Commonwealth's evidence did not deteriorate merely because

the defendant presented a contrary version of critical events.

See Gomez, 450 Mass. at 710-711. The defendant's testimony did

not demonstrate that the Commonwealth's proof was "incredible or

conclusively incorrect." Id. at 710 (quotation omitted).

Instead, the defendant's testimony presented a credibility

question for the jury to resolve. See Commonwealth v. Ruci, 409

Mass. 94, 97 (1991). The evidence sufficed for a conviction of

murder in the second degree.

17
4. Cumulative errors and closing argument. Finally, the

defendant argues that "the cumulative weight of these errors,"

in conjunction with statements made during the prosecutor's

closing argument, require a new trial. As discussed supra,

there were no errors by the trial judge or the motion judge that

warrant a new trial.

Because trial counsel objected to two remarks in the

prosecutor's closing argument, we review them for prejudicial

error. 12 Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 234

(2016). The defendant challenges the prosecutor's statements

regarding the testimony of Randall's roommate regarding a plan

to rob the defendant, and her suggestion that the jury disregard

the 209A order because Randall was unable to challenge it in

court. Though the prosecutor did misquote the roommate's

testimony, this brief mischaracterization, which went to a

collateral issue, was not prejudicial. This is particularly

true where the judge gave the jury a preliminary instruction

that closing arguments are not evidence, a curative instruction

after the defense attorney lodged his objection, an instruction

in his final charge to the jury, and gave repeated instructions

that the jury's recollections of the evidence controlled. See

12The trial judge instructed the jury that closing arguments are
not evidence. Trial counsel objected and asked that the judge
give "specific references, and indicate that there are no basis
for [the prosecutor's] claims [in closing]."

18
Commonwealth v. Thomas, 400 Mass. 676, 683 (1987) (prosecutor's

"slip of the tongue" did not risk misleading jury when judge

"fully instructed the jury that closing arguments are not

evidence"). As further evidence that the jury were not swayed

by emotion or hyperbole, the defendant was convicted of murder

in the second degree (a lesser included offense of murder in the

first degree) despite the brutality of the killing. Cf.

Commonwealth v. Sosnowski, 43 Mass. App. Ct. 367, 372 (1997)

(difficult to find prejudice where defendant acquitted of

certain charges).

As to the 209A order, the prosecutor was entitled to

marshal the evidence and argue reasonable inferences from it to

the jury. See Commonwealth v. Carriere, 470 Mass. 1, 22 (2014).

In any event, these remarks did not prejudice the defendant.

They went to a collateral issue and the trial judge repeatedly

instructed the jury regarding the limited purpose of the 209A

19
order. Because "the jury are presumed to follow [the judge's]

instructions," Commonwealth v. Gonzalez, 465 Mass. 672, 681

(2013), we discern no prejudice.

Judgment affirmed.

Order denying motion for a
new trial, dated May 26,
2022, affirmed.

By the Court (Green, C.J.,
Blake & Henry, JJ. 13),

Assistant Clerk

Entered: February 7, 2024.

13 The panelists are listed in order of seniority.

20