COMMONWEALTH v. DURAND

a, 386 U.S. 18, 23 (1967), quoting Fahy v. Connecticut, 375 U.S. 85, 86-87 (1963) ("The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction"); Commonwealth v. Tyree, 455 Mass. 676, 701 (2010) ("we ask whether, on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the jury and did not contribute to the jury's verdicts").

The Commonwealth introduced through Dr. Flomenbaum a series of nine photographs taken at the victim's autopsy, and he provided detailed descriptions and explanations of each of the external injuries that could be observed in these photographs. Dr. Flomenbaum was not present at the autopsy, and thus could not properly authenticate the photographs as a fair and accurate representation of the victim's body or injuries. See Commonwealth v. Weichell, 390 Mass. 62, 77 (1983), cert. denied, 465 U.S. 1032 (1984), S.C., 446 Mass. 785 (2006); Commonwealth v. Figueroa, 56 Mass. App. Ct. 641, 646 (2002) ("Photographs usually are authenticated directly through competent testimony that the scene they show is a fair and accurate representation of something the witness actually saw"). Although the photographs might properly have been introduced through a different witness, Joseph Ferreira of the Somerset police department, who had been present throughout the entire autopsy, see note 13, supra, this was not done, and the introduction of the photographs was without proper foundation, although the defendant did not object. See Commonwealth v. Rodriguez, supra.

As noted, no photographs of the victim's internal injuries were admitted in evidence.

ii. Dr. Goldberg. Dr. Goldberg, like Dr. Flomenbaum, testified to factual findings contained in the autopsy report prepared by Dr. Philip. Like Dr. Flomenbaum's testimony, this constituted testimonial hearsay, violated the defendant's right of confrontation, and should not have been admitted. Nardi, 452 Mass. at 391-394. There is no need to address this aspect of Dr. Goldberg's testimony separately. The defendant also contends, however, that Dr. Goldberg's testimony concerning the contents of "studies" not in evidence similarly violated the defendant's right to confrontation.

As an example, in response to a question asked by the Commonwealth concerning the witness's review of the autopsy report, Dr. Goldberg stated: " The autopsy report noted that the child had intra-abdominal injuries or injuries inside of his belly, his abdomen. Two organs in particular were injured. One, a solid organ, the pancreas, had a complete transection; and the small intestine from the stomach had been completely severed or ruptured, transected. Those are all terms that would describe what he had. The child also had multiple skin injuries described as abrasions and lacerations all over his body. He had some intra-oral trauma as well. . . ." (Emphasis added.)

The defendant did not object to Dr. Goldberg's testimony on confrontation or hearsay grounds. However, because Dr. Flomenbaum's testimony alone would have been sufficient to require reversal, we need not address whether the defendant's failure to make such an objection would call for review under the substantial likelihood of a miscarriage of justice standard.

During direct examination, Dr. Goldberg testified that she reviewed several records and documents pertaining to the victim, including all the medical records from the medical examiner's office; the victim's pediatric records from his primary care physician; hospital records from Charlton Memorial Hospital; photographs from the autopsy of the victim; a witness statement from a detective; and a document prepared by the witness's colleague, Dr. Carole Jenny, and references cited in it. Dr. Goldberg offered several opinions concerning the cause of the abdominal injuries that the victim suffered, whether the cause of the victim's injuries could have been caused by a stairway fall, and the amount of force that would have been required to inflict the victim's injuries. The judge, not the prosecutor, then asked the witness to provide the basis of her opinion that the victim's injuries were inconsistent with a fall down stairs. She answered that her opinion was based on her clinical experience as well as her review of medical literature and, in a separate question posed by the prosecutor, described the substance of information contained in that literature.

Not only did Dr. Goldberg testify that she reviewed hospital records from Charlton Memorial Hospital, but she provided further testimony, in response to questions posed by the prosecutor on direct examination, describing their contents in detail. Although the hospital records could have been admitted in evidence in accordance with G.L. c. 233, § 79, see Bouchie v. Murray, 376 Mass. 524, 531 (1978), the Commonwealth never sought to introduce them as an exhibit. Thus, Dr. Goldberg's testimony describing the contents of the records was erroneous. See Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 274 (1990). See also Commonwealth v. Markvart, 437 Mass. 331, 338 (2002) ("The expert's direct examination may not be used to put before the jury facts that are not . . . properly in evidence"); Commonwealth v. Jaime, 433 Mass. 575, 576-578 (2001) (expert may base opinion on facts or data that, although admissible, have not actually been admitted in evidence, but expert may not articulate that factual basis as part of direct examination); Mass. G. Evid. § 705 (2010).

The witness stated: "[T]here have also been multiple studies, many more than what we have cited in this record, that have looked at the injuries that children sustain when they fall down stairs because they're so common, and what is found and what I have found is that children really do not sustain serious — especially in comparison to the injuries that [the victim] has when they fall down even a flight of stairs." She further provided, "Studies that looked at intraabdominal trauma in children found that, as I just stated, many of the reasons for that trauma was a high speed motor vehicle accident. They found that children — and they looked at all intra-abdominal trauma; so stomach, liver, pancreas, intestine, and all grades of those injuries to those organs. When they looked specifically at combined pancreatic-intestinal injuries, all of the children who had those injuries had suffered inflicted injuries."

We disagree with the defendant's assertion that Dr. Goldberg's testimony concerning the content of the literature she reviewed constituted a confrontation clause violation. The studies to which she testified were not testimonial. See Commonwealth v. Gonsalves, 445 Mass. at 3. Nevertheless, the testimony relating to the contents of the studies constituted hearsay, and was inadmissible on direct examination. See, e.g., Commonwealth v. McNickles, 434 Mass. 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"). See also Mass. G. Evid. §§ 802, 803 (18) (B) (2010).

b. Involuntary statements admitted at trial. On October 21, 2003, the second day on which the defendant was interviewed by police officers concerning the victim's death, he admitted to tossing a plastic shark to get the victim to turn around when he was in the corner, but added that he was sure the shark did not hit the victim in the face; that the shark may have hit the victim's leg or hip; and that "it wasn't anything big." In ruling on the defendant's motion to suppress statements he made to police during his two interrogations, the motion judge determined that these statements of the defendant concerning the toy shark were made involuntarily, and granted the defendant's motion to exclude them from introduction in evidence at trial.

During the October 21, 2003, interview, the following exchange took place:

SERGEANT NETO: "Eric listen to me. But there's also a certain time where you give them a little shove and they could fall and hit their head on the counter and something would happen. Does that make me a murderer, Eric?"

THE DEFENDANT: "No, it does not."

SERGEANT NETO: "Of course it doesn't make me a murderer. Did an accident happen? Yeah an accident happened. Should I go to jail for that? No. Should you go to jail for that? No. . . ."

The motion judge determined that the interrogating officers improperly implied a promise of leniency, and that the promise the defendant would not go to jail carried over to when the defendant was questioned concerning the toy shark. Accordingly, based on the rule against improper "minimization," see Commonwealth v. DiGiambattista, 442 Mass. 423, 436 (2004); see also Commonwealth v. O'Brian, 445 Mass. 720, 726-728 (2006), and the Commonwealth's heavy burden to prove voluntariness, the motion judge ordered the statements suppressed.

During trial, however, the defendant's admission to throwing the toy shark was introduced through the testimony of Chief Joseph Ferreira of the Somerset police department. During cross-examination, defense counsel, in an effort to support the position that the police investigation was prematurely focused on the defendant, suggested that the police did not learn any new information from their second interview of the defendant on October 21. Ferreira responded, "That's not correct," and stated that the officers did receive additional information, some of which further incriminated the defendant. During redirect examination, the prosecutor informed the judge at a sidebar conference that the additional information alluded to during cross-examination included the suppressed statements concerning the toy shark, and asked that, in the circumstances opened by defense counsel, he be able to ask the witness what the new information was. The judge agreed, and the witness thereafter testified, "We learned that [the defendant] said that when he had put [the victim] in the corner, that he threw a shark at his face and cut his lip. A rubber shark." On appeal, the defendant argues that the introduction of this testimony was constitutional error and that it requires a reversal of both of his convictions.

We have already determined that the defendant's conviction on the murder charge must be reversed, and therefore we review this error only in relation to the conviction of assault and battery by means of a dangerous weapon.

We agree with the defendant that the use of his involuntary statement at trial constituted constitutional error. See Arizona v. Fulminante, 499 U.S. 279, 306-312 (1991). Having been found involuntary by the motion judge, the defendant's statements concerning the toy shark were not "the product of a rational intellect and a free will," Mincey v. Arizona, 437 U.S. 385, 398 (1978), quoting Townsend v. Sain, 372 U.S. 293, 307 (1963), and should not have been used against him. See Mincey v. Arizona, supra, quoting Jackson v. Denno, 378 U.S. 368, 376 (1964) (" any criminal trial use against a defendant of his involuntary statement is a denial of due process of law" [emphasis in original]).

Relying on Commonwealth v. Williams, 379 Mass. 600, 606 (1980), the Commonwealth suggests that the decision to permit Chief Ferreira to testify to the defendant's involuntary statements was not improper. The argument fails. In Williams, the defendant moved to suppress a statement he made to police on the ground that it was coerced and involuntary. Id. at 604. The trial judge, however, postponed a hearing on the defendant's motion until the Commonwealth attempted to introduce the statement, and thus there was no finding of involuntariness. Id. The Commonwealth did not seek to introduce the statement in its case-in-chief. Id. Rather, the defendant's expert testified to the existence of the statement and that he considered it in forming his opinion as to the defendant's lack of criminal responsibility. Id. Thereafter, in the Commonwealth's case-in-rebuttal, the Commonwealth sought to introduce the statement itself, arguing that the jury had already heard testimony about it. Id. The judge admitted the statement and provided the jury with instructions that they were not to consider the truth of what was asserted but rather consider the statement only for the limited purpose of assessing the defendant's criminal responsibility. Id. at 605. This court concluded in Williams that the defendant's own use of the statement obviated any need for a hearing on its voluntariness. Id.
The differences between Williams and the present case are quite obvious and significant. Most prominently, the defendant's statement at issue here had previously been found involuntary. Moreover, no limiting instruction was provided at the time the statement was introduced during the redirect testimony of Ferreira or during the judge's instructions to the jury. Statements that are coerced or involuntary may not even be used to impeach a defendant's credibility, Commonwealth v. Dwyer, 448 Mass. 122, 132 (2006), never mind admitted substantively to support the truth of the matter asserted.

The defendant contends that this error is structural in nature and requires, notwithstanding that no trial objection was preserved on constitutional grounds, automatic reversal. In contrast, the Commonwealth contends that such an error should be reviewed to determine whether there was a miscarriage of justice, and asserts that there was not. Although we recognize that the Commonwealth's position finds some support under Federal law — in Arizona v. Fulminante, 499 U.S. 279, 306-312 (1991), five Justices of the Supreme Court held that admission in evidence of a coerced confession (or involuntary statement) is a "trial error" subject to harmless error analysis rather than a "structural defect" in the trial mechanism — we do not now need to resolve whether the Massachusetts Constitution requires a similar standard of review or whether the structural error standard should apply. Here, the introduction of the defendant's statement concerning the toy shark gave rise to a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 294-295, 297-298 (2002).

During the sidebar conference in which the Commonwealth sought the judge's permission to introduce the involuntary statement, defense counsel stated: "Judge, my argument would be that all I asked was additional information. I didn't ask for specific information. He would testify that there were alleged other inconsistencies about where he was and what time. It wasn't necessarily referring to the shark." This argument focuses on counsel's belief that her cross-examination of Ferreira did not open the door for the introduction of the defendant's involuntary statement; it does not raise a constitutional objection.

As indicated (see note 21, supra), we are reviewing the introduction of the involuntary statement only in relation to the conviction of assault and battery by means of a dangerous weapon. Accordingly, the defendant is not entitled to the more deferential standard that applies pursuant to G.L. c. 278, § 33E.

The error in admitting the defendant's own involuntary statement was compounded in this case by the fact that Chief Ferreira testified incorrectly to the defendant's words. During the October 21, 2003, interview, the defendant stated that he tossed the toy shark at the victim and hit him in the hip or the leg. During trial, however, Ferreira testified that the defendant admitted to hitting the victim in the face and cutting his lip. Thus, the jury heard an admission that the defendant did not actually make. For this reason, coupled with the fact of the constitutional violation, "we are left with uncertainty that the defendant's guilt [on the assault and battery by means of a dangerous weapon charge] has been fairly adjudicated." Commonwealth v. Azar, 435 Mass. 675, 687 (2002), quoting Commonwealth v. Chase, 433 Mass. 293, 299 (2001).

c. Motion to suppress. The police interviewed the defendant for approximately six hours on October 20, 2003, and for an additional two hours on October 21. During the course of these interviews, the defendant never confessed to causing the victim's injuries, but he did make several incriminating statements. Before trial, the defendant filed a motion to suppress his statements to police made during the interrogations. After an evidentiary hearing, the motion judge (who was not the trial judge) issued two separate memoranda of decision, both of which included extensive findings of fact, based on his review of the videotapes of the interviews, concerning the circumstances in which the defendant made his contested statements. The judge ultimately denied the defendant's motion, with the exception (discussed previously) of the defendant's statements concerning the plastic shark that the judge ruled should be suppressed because they were involuntary. The defendant now challenges the ruling that his other statements were voluntary. Because all the other statements at issue were made on October 20, we summarize the judge's findings of that interview, supplemented by additional facts based on our independent review of the videotape of that interrogation.

For example, on October 20, the defendant admitted to slapping Bowden on the evening before the victim's death; kicking the victim on previous occasions; and being frustrated with the victim for urinating on his leg that morning. On October 21, during the second interview, the defendant made the statement that he threw a plastic shark at the victim on the morning of his death.

Lieutenant Ferreira and Trooper Serpa conducted the October 20, 2003, interview, which began at 2 P.M. During its duration, the three men sat around a small table; at no time did the defendant leave the room. The interview began with the officers restating that the defendant agreed to have the interview audiotaped and videotaped, and informing him of his Miranda rights and of the fact that he was not under arrest. The initial questions concerned the defendant's background, his relationship with the victim's family, the living arrangements at the Paquette house in Somerset, and the events leading up to the 911 call. During this time, Lieutenant Ferreira asked most of the questions, and did so in an even, neutral manner. The defendant responded "eagerly and comprehensively," often telling the officers that he wanted to do what was best for the victim and that he wanted to tell the truth.

At the time the defendant agreed to be interviewed and throughout the beginning portion of the interview, he was unaware that the victim had died.

At some point after 5:45 P.M., the tone of the questioning changed dramatically. The officers reported to the defendant that the information he had provided conflicted with information they received from interviews of others, and also told him that the victim had died. The news of the victim's death "destabiliz[ed]" the defendant. He got up from his chair, pounded his fist, stood in the corner, and cried. Over the course of the next two hours, the officers pressured the defendant to tell them what he did that resulted in the victim's death. In addition to focusing on their belief that the defendant was lying or not telling the full version of events, Lieutenant Ferreira and Trooper Serpa showed the defendant photographs of the victim from the emergency room after he was pronounced dead; yelled and screamed at him; told him that he had the opportunity to tell them what happened "because tomorrow is going to be too late"; and implied that perhaps whatever happened to the victim was an accident. The officers also told the defendant that they had children and would sometimes become frustrated with them and would hit them. Throughout, the defendant steadfastly and repeatedly denied any involvement in hurting the victim or in causing his injuries.

Eventually the defendant asked whether he could go home. The officers did not prevent him from doing so, but the defendant ultimately agreed to continue talking. The atmosphere then became somewhat lighter. Closer to the end of the interview, however, the police again increased the pressure, with Lieutenant Ferreira on one occasion standing "toe to toe" with the defendant, raising his voice, firing questions at the defendant, and interrupting the defendant's answers. Again, the defendant did not admit to any involvement in the victim's death. Finally, the interview ended and the defendant left.

Based on these facts, the motion judge determined that the defendant was not in custody at the time of the interview, but that even if the interview was a "custodial interrogation," the defendant intelligently and freely waived his Miranda rights and agreed to speak with the police. The judge then examined whether the defendant's will was overborne during the interrogation. He found that the prolonged pressure applied by the police constituted psychological coercion designed to overcome the defendant's resistance, and that the police improperly implied leniency and wrongly told the defendant that the interrogation represented his only opportunity to explain. Nevertheless, the judge determined that the statements given by the defendant were voluntary because, despite the use of improper interrogation tactics, the defendant repeatedly resisted police efforts to have him admit to striking the victim or explain how the victim died.

The defendant does not dispute the finding that he was not in custody at the time of the interrogation, but challenges the motion judge's determination of voluntariness. He argues that as matter of law his statements to police could not have been voluntary given the motion judge's other findings concerning the improper interrogation tactics used by both Lieutenant Ferreira and Trooper Serpa. There was no error.

In reviewing the defendant's claims, because we agree with the finding that he was not in custody, we focus solely on the question whether his statements were voluntary and not the result of coercion or intimidation. Commonwealth v. Garcia, 379 Mass. 422, 428-430 (1980). See Commonwealth v. Freeman, 430 Mass. 111, 114-115 (1999), and cases cited.

The test for voluntariness is "whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act." Commonwealth v. Souza, 428 Mass. 478, 483-484 (1998), quoting Commonwealth v. Raymond, 424 Mass. 382, 395 (1997). Factors relevant to the totality of the circumstances include whether promises or other inducements were made to the defendant by the police, as well as the defendant's age, education, and intelligence; experience with the criminal justice system; and his physical and mental condition, including whether the defendant was under the influence of drugs or alcohol. Commonwealth v. Scott, 430 Mass. 351, 355 (1999). The Commonwealth bears the burden of proving, beyond a reasonable doubt, that the defendant's statements were made voluntarily. Commonwealth v. Jackson, 432 Mass. 82, 85 (2000). We generally accept the judge's subsidiary findings of fact and afford substantial deference to the judge's ultimate findings. Commonwealth v. Novo, 442 Mass. 262, 266 (2004), quoting Commonwealth v. Raymond, supra at 395. In this case, however, the judge's findings are based almost exclusively on the two videotapes of the defendant's interviews at the Somerset police station. Thus, "we are in the same position as the [motion] judge in reviewing the videotape," and need not accord such deference. Commonwealth v. Novo, supra, quoting Commonwealth v. Prater, 420 Mass. 569, 578 n. 7 (1995).

Based on our review of the October 20 interrogation, we agree with the judge that the Commonwealth has met its burden of proving that the defendant's statements were voluntary. Although the officers used a variety of interrogation techniques this court has found improper — see, e.g., Commonwealth v. DiGiambattista, 442 Mass. 423, 435-436 (2004) (minimization of crimes and suggestions of leniency); Commonwealth v. Novo, supra at 267-270 (informing defendant that this was his only opportunity to explain); Commonwealth v. Magee, 423 Mass. 381, 388 (1996) (psychological coercion) — the use of such tactics alone does not render statements made by the defendant involuntary. Rather, the relevant focus is on whether the defendant's will was overborne. Here, the incriminating statements made by the defendant were not tied to or otherwise made in response to the pressure tactics employed by the officers. For example, during the initial part of the interview, before the defendant was told that the victim had died and before the officers engaged in any pressure tactics, the defendant acknowledged he was frustrated by the fact that the victim had urinated and that the defendant had yelled at the victim and told him that "this is disgusting." Moreover, the defendant's admissions that he kicked the victim on prior occasions and that he slapped Bowden the day before the victim's death were made throughout the October 20 interview, not only when the officers used questionable or improper tactics designed to elicit confessions.

See Commonwealth v. O'Brian, 445 Mass. 720, 726-728 (2006) (minimizing crime implies leniency, but minimizing crime alone does not render defendant's statement involuntary; defendant's confession voluntary despite officer's statement to defendant's father that defendant "may see the light of day down the road" and further statement that maybe "the shooting was an accident"); Commonwealth v. Ortiz, 435 Mass. 569, 577-578 (2002) (officer's statement that it would benefit defendant to tell truth because confession could reduce charge did not constitute police coercion so as to render defendant's statement involuntary).

See discussion of this evidence concerning Bowden in Part 2.e, infra.

We agree with the judge that the totality of circumstances demonstrate that the defendant's will was not overborne. Our review of the videotape indicates that the defendant consistently had control over both his actions and mental faculties. He was sober, alert, oriented, and lucid. Cf. Magee, supra at 386-388 (officers questioned defendant for seven hours while defendant, in exhausted state, cried and shook uncontrollably; statements involuntary). The defendant does not argue that he was in any way incapacitated or incompetent, and although he became emotionally upset when the officers informed him that the victim had died, that itself does not render his statements involuntary. Commonwealth v. Look, 379 Mass. 893, 906-907 (1980). Further, rather than acting in a manner that would suggest he was at the mercy of the interrogating officers, the defendant's actions reveal that he was able to decide what to tell the officers and could further identify the officers' tactics for what they were. In sum, based on a consideration of the totality of the circumstances and a full review of the record, in particular the videotape of the interrogation, we conclude that while the police used improper interrogation tactics, the defendant's statements to the police on October 20 were voluntary.

The judge stated that the defendant was able to "intelligently decide what he should admit," and that the defendant "never confessed." The defendant argues that these statements reflect that the judge drew an invalid distinction between admissions and confessions, and incorrectly decided that because the defendant did not actually "confess" to killing the victim, his statements must have been voluntary. We read the decision differently. We understand the judge to be stating that the defendant's admission to some acts while repeatedly denying that he killed or hurt the victim, in the face of relentless and aggressive pressure to do so by the police, indicated that he had the cognitive awareness and ability to decide what facts and circumstances to admit to and that, ultimately, his will was not overborne.

For example, the defendant told the officers, "That's your job. That's what you try to do. I'm not stupid; okay? Don't play me like an idiot. I know what's going on." The defendant also stated, "You don't see that because you're a detective, and that's what you're paid to make people do . . . get nervous and lie and fuck them all up. . . . I know your fucking job." He later continued, "[Y]our little job [is] to make [it] sound like I'm the baddest person, that I hurt this kid, and your detective work is going to make me confobble [ sic] my fucking story, so I say that I did it. . . . It's not going to work, because I didn't hurt that kid."

d. Other issues. We consider certain additional issues that may arise at the defendant's retrial.

i. Testimony regarding blood on defendant's hands. The defendant argues that it was error for the trial judge to permit the Commonwealth to call a forensic chemist to testify that on the evening of October 20, 2003, the defendant's hands tested positive for the presence of blood, because its likely prejudicial effect outweighed its probative value. According to the defendant, such testimony had little, if any, probative value because the test did not indicate whether the blood on the defendant's hands was the victim's blood or even whether it was human blood. At the same time, he claims, the evidence was highly prejudicial because it increased the likelihood that the jury would conclude he killed the victim. There was no error.

This court previously has allowed the introduction of test results for occult blood, see Commonwealth v. Mathews, 450 Mass. 858, 863 n. 7 (2008), and cases cited, and to the extent that the blood test at issue did not reveal the origin, age, or identity of the blood, the defendant was free to explore these issues during cross-examination of the forensic chemist. Commonwealth v. Gonzalez, 443 Mass. 799, 810 (2005). Therefore, the judge acted within his discretion in permitting the testimony. See, e.g., Commonwealth v. Lewin (No. 2), 407 Mass. 629, 631 (1990).

ii. Jury instruction on reasonable provocation. The defendant argues that the judge erred in failing to instruct the jury that in order to find the defendant guilty of murder in the first or second degree, they first had to find the Commonwealth had proved an absence of provocation beyond a reasonable doubt. Such an instruction was required, according to the defendant, because the Commonwealth had presented evidence to the jury that the defendant had killed the victim because he was angry that the victim had urinated on his leg. An instruction on reasonable provocation is necessary only if the evidence, taken in the light most favorable to the defendant, would support a conviction of voluntary manslaughter based on reasonable provocation. See Commonwealth v. Acevedo, 427 Mass. 714, 716 (1998). The evidence here suggests that a four year old boy urinated on the adult defendant's leg; while the defendant may have found this behavior frustrating or annoying, it did not rise to the level of "adequate provocation" within the meaning of our law, and no rational jury could have found otherwise. See Commonwealth v. Vatcher, 438 Mass. 584, 589-590 (2003). It was error for the judge to include an instruction on voluntary manslaughter at all, but this was not an error that prejudiced the defendant.

The apparent context of this argument is the following. The judge instructed the jury on both voluntary and involuntary manslaughter as lesser included offenses of murder. Our Model Jury Instructions on Homicide counsel that when a voluntary manslaughter instruction is provided as a lesser included offense of murder, the jury should be instructed that in order to prove the defendant acted with malice necessary for murder, the Commonwealth must establish beyond a reasonable doubt the absence of mitigating circumstances, including heat of passion on reasonable provocation. See Model Jury Instructions on Homicide 27 (1999). The judge did not include such an instruction in this case.

e. Review under G.L. c. 278, § 33E. In addition to considering the defendant's specific claims on appeal, we have reviewed the entire record pursuant to our duty under G.L. c. 278, § 33E. That review reveals three additional errors. First, the Commonwealth introduced evidence, primarily through the testimony of Bowden, that the defendant had on previous occasions pushed Bowden onto the bed when the two would argue and she would attempt to leave, and further that on the night before the victim's death, the defendant slapped Bowden across the face, leaving a red mark. Generally, prior crimes, wrongs, or acts of the defendant are inadmissible if offered solely to establish criminal disposition or bad character. Mass. G. Evid. § 404 (b) (2010); Commonwealth v. Bonds, 445 Mass. 821, 833-835 (2006). To be admissible, such evidence must be relevant to "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, nature of relationship, or absence of mistake or accident," Mass. G. Evid., supra, and the probative value of the prior act must not be "substantially outweighed by its prejudicial effect." Commonwealth v. Bonds, supra at 834. Here, it appears that the defendant's prior acts of misconduct against Bowden do not fit within any one of these categories. To the extent the Commonwealth might argue that the evidence was relevant to show the nature of "the relationship," in this case the relevant relationship was between the defendant and victim, not the defendant and Bowden. This evidence should not have been admitted.

At the defendant's retrial, if either party seeks to introduce all or portions of the defendant's two police interviews, those segments of the videotape that show the defendant admitting to either of these acts against Bowden should be redacted.

Second, the defendant called as a witness Diane Costa, the mother of his two young children. During direct examination, defense counsel questioned Costa about an incident in 2004 when she was asked to bring her son Devon (the defendant is Devon's father) to the Department of Social Services for an interview. The witness testified that she was asked about her relationship with the defendant and whether the defendant had ever hit or otherwise abused Devon; she responded in the negative. During cross-examination, in an apparent effort to establish why Costa and Devon were called to that 2004 meeting, the Commonwealth elicited testimony concerning allegations that Devon had put his penis into the mouth of Costa's goddaughter.

The relevance of this testimony appears to be virtually nonexistent, see Mass. G. Evid. at §§ 401, 402, and it is highly prejudicial, Mass. G. Evid. at § 403. Specific testimony concerning the allegations that may have led to the 2004 meeting between Costa, Devon, and the Department of Social Services should not be admitted at a retrial.

Third, on several occasions throughout the trial, the Commonwealth questioned its expert witnesses concerning facts or data that were not otherwise admitted in evidence. As we have discussed, while an expert may base his or her opinion on facts or data not in evidence — assuming the facts and data are otherwise admissible and are a permissible basis for an expert to consider in formulating an opinion, see Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986) — the expert may not on direct examination detail the specifics of that background material. See, e.g., Commonwealth v. Markvart, 437 Mass. 331, 338 (2002); Commonwealth v. Jaime, 433 Mass. 575, 577-578 (2001). At retrial, the autopsy photographs and the victim's hospital records must be properly admitted before Dr. Flomenbaum, Dr. Goldberg, or any other expert testifies to their contents.

3. Conclusion. The convictions are reversed, the verdicts set aside, and the case is remanded to the Superior Court for a new trial.

So ordered.