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Robert KOSILEK

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Parricide - Diagnosed with a gender identity disorder
Number of victims: 1
Date of murder: May 20, 1990
Date of arrest: 4 days after
Date of birth: 1949
Victim profile: Cheryl Kosilek, 36 (his wife)
Method of murder: Strangulation
Location: Boston, Massachusetts, USA
Status: Sentenced to life imprisonment in 1993
 
 

 
 

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Robert Kosilek (57 years old) is a convicted murderer who has made headlines by fighting to undergo gender reassigment while in prison. He changed his name to Michelle Kosilek in 1993, and lives his life as a woman in an all-male prison.

In 1990, he killed his wife Cheryl. He is serving a life sentence in Norfolk, Massachusetts.

He has been diagnosed with a gender identity disorder. After suing the government in 2000 for violation of the Eighth Amendment, he has undergone female hormone therapy, laser hair therapy and psychotherapy. He wears women's clothing in prison.


Convicted killer sues state for free sex change

Suit argues that denying operation constitutes cruel, unusual punishment

Associated Press - May 31, 2006

BOSTON - A man serving a life sentence for the murder of his wife is asking a federal judge to order the state to pay for a sex-change operation for him, saying that denying him the surgery amounts to cruel and unusual punishment.

A psychiatrist testified Tuesday that he believes Robert Kosilek will kill himself if state correction officials refuse to allow the surgery and Kosilek is unable to complete his transformation into a woman.

Kosilek, 57, was convicted of strangling his wife, Cheryl, in 1990.

In 2002, U.S. District Judge Mark Wolf ruled that Kosilek — who now goes by the name of Michelle — was entitled to treatment for gender identity disorder, but stopped short of ordering the state to pay for the sex-change operation.

Since then, Kosilek has received psychotherapy, female hormone treatments and laser hair removal. Kosilek, who wears his hair long and tucked behind his ears, has developed larger breasts since beginning hormone treatments.

Operation ‘medically necessary’

Kosilek sued the Department of Correction for the second time last year, saying that numerous psychiatrists who had examined him — including two of the DOC's own experts — had determined that a sex-change operation is "medically necessary."

"We ask that gender identity disorder be treated like any other medical condition," said Kosilek's attorney, Frances Cohen.

Kosilek sat quietly in court Tuesday as his attorney and an attorney for the state Department of Correction made opening statements in a trial that is expected to last up to two weeks. Kosilek opted to have the case heard by Wolf instead of a jury.

During the 2002 trial, Kosilek testified that he has suffered from gender identity disorder since the age of 3. He said he had twice tried to kill himself and also tried to castrate himself.

The DOC's attorney, Richard McFarland, said that DOC Commissioner Kathleen Dennehy made the decision to deny surgery for Kosilek based on "significant safety and security concerns."

Risk at men’s, women’s prisons

McFarland said correction officials fear that if Kosilek has the surgery and returns — as a woman — to the all-male, medium-security prison in Norfolk where he is now serving his sentence, he could be a target for assault by male inmates. If he is transferred to the women's prison in Framingham, there are concerns he will pose a risk to female inmates there, McFarland said.

Two psychiatrists will testify that Kosilek functions "at a very high level" and that a sex-change operation is not medically necessary, McFarland said.

Neither side gave an estimate on the costs of the sex-change operation. Kosilek's attorney told Wolf she believes the DOC could argue that the surgery should be covered by the DOC's provider under its overall mental health contract.

Dr. George Richard Brown, a psychiatrist who said he has treated more than 1,000 patients with gender identity disorder since 1979, acknowledged that Kosilek's depression and anxiety have improved since he began receiving female hormones. But he said that improvement was based on Kosilek's sense of hope that he will be allowed to become a woman.

"I believe that she would kill herself," Brown said, when asked by Kosilek's attorney what would happen if Kosilek does not have a sex-change operation.

"I don't believe she would consider life worth living without hope for completion of her treatment plan," he said.


Killer Wants State to Pay for His Surgery to Become a Woman

A convicted murderer in Boston wants the state of Massachusetts to pay for his sex-change operation, saying that denying him the operation would be cruel and unusual punishment.

By Linda Orlando - Buzzle.com

6/1/2006

Robert Kosilek was sentenced to life in prison without parole nine years ago for murdering his wife, Sheryl. He wrapped a wire around her neck three times and strangled her, dumped her in the back of car, and left her at a mall. At the time he killed her, he sported a beard and dressed and acted like a man.

When Kosilek was tried for her killing, he came to court dressed in women’s clothing, with his fingernails long and painted. After his conviction, Robert Kosilek changed his name legally to Michelle. Now Kosilek is suing the state of Massachusetts, demanding that taxpayers fund his sex-change operation.

A state judge ruled earlier that Kosilek is entitled to treatment for a condition called "gender identity disorder," and the court granted the 57-year old Kosilek the right to have the state pay for his female hormone treatments and laser hair removal.

Kosilek claims that his condition is equivalent to "biological claustrophobia," and he says that the universally accepted treatment for his disorder involves psychotherapy, hormone therapy, and finally "surgical correction of the offending genitalia."

John Moses, the Assistant District Attorney who prosecuted Kosilek, says that prisoners are not supposed to be sexual in the prison, so he is surprised by Kosilek’s lawsuit. As for the surgery being cruel and unusual punishment, Moses is adamant that nobody is punishing Kosilek. "He is doing life without parole for murder. The fact that he is serving a sentence, anybody serving a sentence is deprived of certain choices in his life. He was 41 years old when he killed Sheryl Kosilek. He didn't try to get a sex change operation at that time. Now he's 53 years of age, and he wants the state to pay for that?"

There are currently 12 prisoners in federal prisons who have been diagnosed with gender identity disorder, and four are receiving hormone treatments. So far their medical care and lawsuits for these conditions have cost taxpayers tens of thousands of dollars. Sex change operations for all of them—operations that insurance companies won’t even pay for—would cost at least a quarter of a million dollars.

If Kosilek is granted the operation, the results would cause a nightmare for prison officials, who will then have to decide whether to house him in a men’s prison or a women’s prison, and either situation would certainly disrupt the prison and cause problems for other inmates as well as Kosilek.

Kosilek claims that the Corrections Department is violating his civil rights and subjecting him to cruel and unusual punishment by refusing to provide him the treatment he deserves. He says that as a result of being denied treatment, he suffers constant depression, anxiety, and a high level of stress.

A psychiatrist testified that "Michelle" is likely to commit suicide if he doesn’t get the operation. Perhaps the state could save a lot of money and time by just letting him do that. Or maybe they could just treat him the same way he treated his wife—wrap a wire around his neck three times, dump him in a car, and leave him at a mall.

By Buzzle Staff and Agencies

 


Transgendered inmates push for state-funded sex-change surgery

USAtoday.com - 8/19/2006

BOSTON (AP) — Wearing lipstick, a scooped-neck sweater and nearly waist-length hair, the witness cried while describing what it feels like to be a woman trapped inside a man's body.

"The greatest loss is the dying I do inside a little bit every day," said Michelle Kosilek, an inmate who is serving a life sentence for murder.

Michelle Kosilek was Robert Kosilek when he was convicted in the killing of his wife. In 1993, while in prison, he legally changed his name to Michelle. Since then, Kosilek has been fighting with prison officials to complete his transformation into a woman.

Kosilek, 57, wants the state Department of Correction to pay for a sex-change operation. After two lawsuits and two trials, the decision now rests with a federal court judge.

Kosilek's case has become fodder for radio talk shows, where the topic of whether the state should pay for a sex-change operation for a convicted murderer often attracts outraged callers.

The case is also being closely watched by attorneys and advocates across the country who say Kosilek is an example of the poor treatment transgendered inmates receive in prison.

Courts in several other states have ordered prison systems to allow transgendered inmates to receive psychotherapy and, in some cases, hormone shots. But no inmate in the country has ever succeeded in getting a court to order a sex-change operation, according to advocates.

"People often have a knee-jerk reaction that public money shouldn't be spent on this," said Shannon Minter, a board member of the Transgender Law and Policy Institute.

"If people are not treated, they suffer tremendously," said Minter. "It's just as cruel to withhold treatment for gender identity disorder as it is to withhold treatment for any other medical issue."

Some states allow inmates to continue hormone treatments if they are already on hormones when they begin their sentences. But most do not allow inmates to initiate hormone therapy while in prison, and many states do not have any written policy for the treatment of transgendered inmates, said Cole Thaler, a transgender-rights attorney for Lambda Legal, a national advocacy group for homosexual, bisexual and transgendered people.

"The majority of states don't seem to have formal or informal policies or practices," said Thaler.

Inmates in several other states have sued prison officials for sex-change operations. Like Kosilek, they argued that gender identity disorder is a serious illness that can lead to severe anxiety, depression, suicide attempts and self-castration. They argue that treatment for their condition is a "medical necessity" and denying it would violate the Eighth Amendment's prohibition against cruel and unusual punishment.

Those arguments have fueled the anger of some taxpayer groups and politicians.

"It's the most absurd thing I've ever heard of," said state Rep. Mark Gundrum of Wisconsin, who helped author a state law that bars the Department of Correction from using tax dollars for hormone therapy or sex-reassignment surgery.

"I think the founders of our country — when they wrote that clause — they were envisioning preventing people from being burned in oil or burned at the stake, not simply refusing to use taxpayer dollars to allow inmates to get a sex change or breast implants or whatever else," Gundrum said.

The "Inmate Sex Change Prevention Act" was introduced after Wisconsin inmate Scott Konitzer filed a lawsuit seeking a sex-change operation. The law took effect in January, but is being challenged by the American Civil Liberties Union and Lambda Legal.

In Colorado, inmate Christopher "Kitty" Grey, who is serving 16 years to life for molesting an 8-year-old girl, is suing the state to provide him with a gender specialist he hopes will determine that he needs a sex-change operation. The state Department of Corrections is already giving Grey female hormones.

"For all intents and purposes, I am a woman in a man's prison," Grey told the Denver Post in an interview earlier this year. "That's like putting a cat in a dog kennel," Grey said.

Colorado officials say that providing a sex-change operation for Grey or any of the other two dozen transgendered inmates in the state's prisons would create security concerns.

Dr. James Michaud, chief of mental health for the Colorado DOC, said he does not believe sex-change operations are "medically necessary."

"There are certainly people who are transgendered who want surgery and who want to appear different, but I don't think that makes it medically necessary," said Michaud.

In addition to the cost — estimates for sex-change operations are in the $10,000 to $20,000 range — prison officials cite the safety risks of housing a male inmate who has been transformed into a female.

During Kosilek's trial, Massachusetts Correction Commissioner Kathleen Dennehy said that if Kosilek has the surgery, prison officials believe Kosilek could end up being a target of sexual assault in prison.

"The safety and security concerns are enormous," Dennehy testified.

In Massachusetts, four of the 12 inmates diagnosed with gender identity disorder are receiving hormone shots.

Kosilek has been receiving hormone therapy since a federal judge ruled in 2002 that he was entitled to some treatment for gender identity disorder. Although Judge Mark Wolf did not order a specific treatment plan, he ruled that Kosilek had proven he has a serious medical condition that had not been adequately treated.

After Wolf's ruling, the corrections department allowed Kosilek to receive female hormones and laser hair removal. He was also given access to female undergarments and some makeup.

During testimony this spring in his second lawsuit, Kosilek said the female hormones and other treatments have not been enough to relieve his suffering and said he would likely commit suicide if he does not get the surgery.

Such talk infuriates state Sen. Scott Brown, who filed legislation seeking to ban sex-change operations for inmates in 1998. The legislation died in committee.

Brown points out that most private health insurers do not cover sex-change operations, and says taxpayers should not have to pay for such "elective" surgery for inmates.

"I just think it would be deemed a luxury for him to have that operation. He is in there because he murdered his wife," Brown said. "There are no luxuries that are supposed to be available."

But advocates for transgendered inmates say that in some cases, sex reassignment surgery is a medical necessity, not a luxury.

Dr. George Brown, a psychiatry professor at East Tennessee State University who has treated hundreds of transgendered people, testified during Kosilek's trial that he believes Kosilek will commit suicide if he does not get a sex-change operation. Kosilek said he has twice tried to kill himself and once tried to castrate himself.

"For severe gender-identity disorder, after that person has already been through other less invasive treatments like psychotherapy, hormones, electrolysis, group support — there's nowhere else to go," Brown said in a recent interview. "At a certain point, there are no other treatments that actually work."


Inmate's Sex-Change Demand Draws Scrutiny

Murderer's Bid To Have The State Pay For His Sex Change Is Bogged Down In Federal Court

BOSTON, June 26, 2007 - CBS News

A trial that opened more than a year ago has become bogged down in Boston federal court. There have been hundreds of hours of testimony from witnesses, including 10 medical specialists paid tens of thousands of dollars. The judge himself even hired an expert to help him make sense of it all.

The question at the center of the case: Should a murderer serving life in prison get a sex-change operation at taxpayer expense?

The case of Michelle — formerly Robert — Kosilek is being closely watched across the country by advocates for other inmates who want to undergo a sex change. Transgender inmates in other states have sued prison officials, and not one has succeeded in persuading a judge to order a sex-change operation.

The Massachusetts Correction Department is vigorously fighting Kosilek's request for surgery, saying it would create a security nightmare and make Kosilek a target for sexual assault.

An Associated Press review of the case, including figures obtained through Freedom of Information Act requests and interviews, found that the Correction Department and its outside health care provider have spent more than $52,000 on experts to testify about an operation that would cost about $20,000.

The duration and expense of the case have outraged some lawmakers who insist that taxpayers should not have to pay for inmates to have surgery that most private insurers reject as elective.

"They are prisoners. They are there because they've broken the law," said Republican state Sen. Scott Brown, who unsuccessfully introduced a bill to ban sex-change surgery for inmates. "Other folks, people who want to get these types of surgeries, they have to go through their insurance carrier or save up for it and do it independently. Yet if you are in prison, you can do it for nothing? That doesn't make a lot of sense."

But advocates say in some cases — such as that of Kosilek, who has twice attempted suicide — sex-change surgery is as much a medical necessity as treatment for diabetes or high blood pressure.

"The duty belongs to the prison to figure out how to fulfill its constitutional obligations to both provide adequate medical care and provide a fundamental security for all inmates," said Cole Thaler, an attorney with Lambda Legal, a gay-and transgender-rights group.

Kosilek, 58, was convicted of strangling his wife in 1990. He claimed he killed her in self-defense after she spilled boiling tea on his genitals.

Robert Kosilek legally changed his name to Michelle in 1993, and has sued the Correction Department twice, arguing that its refusal to allow a sex-change operation violates the Eighth Amendment protection against cruel and unusual punishment.

In 2002, U.S. District Judge Mark Wolf ruled that Kosilek was entitled to medical treatment for gender identity disorder, but stopped short of ordering the surgery. Kosilek sued again in 2005, arguing that the hormone treatments, laser hair removal and psychotherapy she has received since Wolf's ruling have not relieved her anxiety and depression.

"I would not want to continue existing like this," Kosilek testified.

Kosilek's second trial, which began in May 2006, has featured expert testimony from 10 doctors, psychiatrists and psychotherapists. Wolf has not indicated when he will rule.

The Correction Department has spent about $33,000 on two experts it retained to evaluate Kosilek. Both Cynthia Osborne, a Baltimore psychotherapist, and Chester Schmidt, a psychiatry professor at Johns Hopkins University, said Kosilek does not need the surgery. Schmidt's fee alone was $350 per hour.

Two other doctors retained and paid for by the department's outside health provider, the University of Massachusetts Correctional Health Program, at a cost of just under $19,000 said they believe the surgery is medically necessary for Kosilek. Two other doctors who work for the health provider agreed with that.

In addition, two psychiatrists who testified for Kosilek recommended the surgery. A Boston law firm representing Kosilek for free paid for those experts but would not disclose the cost.

In Wisconsin, five inmates sued after the Legislature passed a law that bars Correction Department funding for hormone treatments or sex-change surgery. The case is expected to go to trial in October.

Those who argue against allowing the surgery say it could open the floodgates to other inmates who want sex-change operations or other treatments considered elective.

In Massachusetts, 10 inmates have been diagnosed with gender identity disorder and are receiving hormone treatments. Two other inmates besides Kosilek have asked for sex-change surgery.

Corrections officials say their decision to deny the surgery has nothing to do with costs or the politics of crime. They cite the testimony of their experts and Kosilek herself that her feelings of depression have diminished since she began taking hormones.

Former Commissioner Kathleen Dennehy testified that allowing Kosilek to complete the transformation into a woman would present a security problem. Whether she stays in a male prison or is transferred to a female prison, she could become a target for sexual assault, Dennehy testified.

Dennehy also said prison officials cannot be influenced by Kosilek's talk of suicide.

"The department does not negotiate or respond to threats of harm or suicide in an effort to barter," she said. "You couldn't run a prison with that kind of leveraging going on."


Com. v. Kosilek

8/8/1996

Homicide. Practice, Criminal, Instructions to jury, Assistance of counsel, Argument by prosecutor, Capital case. Intent. Mental Impairment. Intoxication. Evidence, Prior inconsistent statement. Self-Defense.

LYNCH, J. The defendant, Robert Kosilek, was convicted of murder in the first degree under theories of premeditated and deliberate murder and extreme atrocity or cruelty for the death of his wife, Cheryl Kosilek. On appeal, the defendant contends that his conviction must be reversed principally because of: (1) errors in jury instructions; (2) limitation of cross-examination on the issue of self-defense; and (3) improper statements in the prosecutor's closing argument. The defendant also challenges the Judge's denial of his motion for a required finding of not guilty, and alleges ineffective assistance of trial counsel. We have considered these arguments and have reviewed the entire record pursuant to G. L. c. 278, § 33E (1994 ed.). We affirm the conviction.

1. Facts.

We review the facts in the light most favorable to the Commonwealth. Commonwealth v. Morgan, 422 Mass. 373, 374, 663 N.E.2d 247 (1996). The victim's body was discovered in the back seat of her automobile in a shopping mall parking lot in North Attleborough on the evening of Sunday, May 20, 1990, after the mall had closed for the evening. She had been strangled with a rope and a wire.

A taxicab driver testified that he picked up the defendant from the same mall on the afternoon of May 20 and drove him to a store located about one-half mile from the defendant's house in Mansfield. That evening, police in North Attleborough received a telephone call from the defendant stating that his wife had not come home that evening and asking whether there had been any report of an automobile accident in which she might have been involved. The police told the defendant that they had located his wife's automobile, and they asked him to come to the police station, which he agreed to do. At the defendant's request, an officer was sent to pick him up and bring him to the station. At the station, Lieutenant Michael Gould informed the defendant that "a body was found in the back seat" of his wife's automobile. Gould questioned the defendant about his actions and the victim's actions during the day. The defendant stated that the victim had gone to work for part of the day and intended to stop at the mall on the way home; he also said that he had spent the day working around the house.

The following day, May 21, 1990, the defendant was again asked to come to the police station to speak with Gould. During the interview, Gould advised the defendant that he was a suspect and informed him of his Miranda rights. Gould told the defendant that the police had spoken with the victim's son, Timothy McCaul, who had lived with the defendant and the victim. McCaul told the police that he had been working during the day of the murder, that he called home at about 5 P.M. to ask for a ride home, and that no one answered the telephone. The defendant noted that Timothy often dialed wrong numbers, and he suggested that he may have been in the shower at the time of the call and failed to hear it. During this second interview with police, the defendant excused himself to go downstairs for cigarettes. Once downstairs, the defendant called up to the officers that he was going to get a lawyer, and left.

On May 22, 1990, shortly after midnight, the defendant was involved in an automobile accident in Bedford. When a police officer arrived at the scene, he observed the defendant, dressed in women's clothing, seated in his vehicle, which had crashed into a stop sign and some shrubs. The officer administered field sobriety tests, determined that the defendant was not intoxicated, and called a taxi to drive the defendant home.

Two days later, on the afternoon of May 24, 1990, police in New Rochelle, New York, stopped the defendant for speeding. After the officer observed a bottle of vodka, two-thirds full, and two cans of beer in the automobile, and smelled alcohol on the defendant's breath, he arrested the defendant for driving while intoxicated and brought him to the police station. At some point, the defendant remarked to the arresting officer, "You would be drunk too if the police thought you killed your wife." Later, at the New Rochelle police station, the defendant stated, "Look, I had a fifteen year old son and a wife. I can't call my wife. I murdered my wife. Now, I need to call a psychiatrist now." The defendant was taken to the psychiatric unit of a New York hospital and subsequently was brought back to Massachusetts by the Massachusetts State police.

About two and one-half years later, in October of 1992, the defendant gave a series of recorded interviews to a television news reporter. An audiotape recording of one of the interview sessions was played for the jury. During the interview, the defendant stated that: on the day of the murder, he and the victim had been in an argument; the victim threw boiling tea into the defendant's face; he then knocked the victim down; she grabbed a butcher knife and chased the defendant into another room, threatening to kill him; he picked up a piece of wire that had been on a table; and this was all he was able to recall until he woke up days later in the hospital. The defendant stated in the interview that he "probably, because of the trauma of it . . . went into a black out at that moment." He also said, "Apparently, I did take her life. It was probably in self-defense."

2. Jury instructions.

The defendant points to a number of mistakes, omissions, or misstatements in the jury charge which, he contends, created a substantial likelihood of a miscarriage of Justice, either in whole or in part.

a. Deliberate premeditation.

The instructions for deliberate and premeditated murder (the full text of which is set out in the margin ) contained two mistakes. First, in the course of explaining the concept of deliberation, the Judge included the following statement:

"Deliberation may be a matter of days, hours, or indeed, seconds. First the deliberation and premeditation, then the decision to kill, and lastly, the killing in furtherance of that decision. All of this may occur within a few seconds. However, it does not exclude action that is taken so quickly that there is no time to think about the action and then determine to do it " (emphasis added).

The emphasized portion of the statement is incorrect as a matter of law. The Commonwealth does not argue otherwise. Cf. Commonwealth v. Callahan, 401 Mass. 627, 633, 519 N.E.2d 245 (1988) (deliberate premeditation "excludes action which is taken so spontaneously that there is no time to think"). There was no objection to the instruction.

When the erroneous statement is read in the context of the entire instruction, it is clear that the mistake was not prejudicial. The error is sandwiched between accurate statements of the law regarding premeditation and deliberation. In particular, the Judge followed the error with a sentence stating in part that "the Commonwealth must show that the defendant's resolve to kill was the product of cool reflection." This statement, and others like it, substantially corrected any misconception which may have arisen in the minds of the jurors. Indeed, if the transcript is correct, the error was not even noticed by counsel. Taken as a whole, then, the instruction did not create a substantial likelihood of a miscarriage of Justice. See Commonwealth v. Campbell, 378 Mass. 680, 706, 393 N.E.2d 820 (1979); Commonwealth v. Diaz, 19 Mass. App. Ct. 29, 38-39, 471 N.E.2d 741 (1984).

The second mistake in the premeditation instruction occurred in the course of the Judge's Discussion of the effect of any mental impairment on the defendant's ability deliberately to premeditate. The Judge stated, in part:

"You should weigh the defendant's mental impairment, if any, in evaluating any evidence that he formed a plan to kill the victim after deliberation and reflection. The Commonwealth does not have to prove that the defendant was entirely free of mental impairment, but the Commonwealth does have to prove that the defendant was so impaired that he lost the ability to deliberately premeditate " (emphasis added).

Once again, the emphasized portion of the statement is incorrect as a matter of law. See Commonwealth v. Meinholz, 420 Mass. 633, 637-638, 651 N.E.2d 385 (1995). At trial, both the Commonwealth and defense counsel brought this to the Judge's attention, and the Judge provided a supplementary instruction in an attempt to cure the error. The additional instruction -- to which the defendant did not object -- did not refer specifically to impairment or intoxication.

The Commonwealth contends that any error was cured by the instructions taken as a whole, which set out several times the jury's requirement to consider the effect of any mental impairment. We agree. "Where there is evidence of the effects of the consumption of drugs (or alcohol) that, if believed, would be relevant to a defendant's state of mind or knowledge, then a simple instruction is required." Commonwealth v. Morgan, 422 Mass. 373, 377, 663 N.E.2d 247 (1996), citing Commonwealth v. Sires, 413 Mass. 292, 300-301, 596 N.E.2d 1018 (1992). Here, the instructions on mental impairment as a whole satisfied these requirements. As with the earlier error, the misstatement is preceded and followed by accurate statements of the controlling law on the issue of mental impairment. Furthermore, the Judge's supplementary instruction on the Commonwealth's burden served to dissipate any lingering confusion resulting from the misstatement. We perceive no prejudice to the defendant that would result in a miscarriage of Justice. See Commonwealth v. Giguere, 420 Mass. 226, 232, 648 N.E.2d 1279 (1995).

b. Extreme atrocity or cruelty.

The Judge gave the instruction on extreme atrocity or cruelty that we disapproved in Commonwealth v. Hunter, 416 Mass. 831, 626 N.E.2d 873 (1994). The defendant did not object. We review the instruction only to see whether it caused a substantial likelihood of a miscarriage of Justice. See Commonwealth v. Semedo, 422 Mass. 716, 726, 665 N.E.2d 638 (1996). Where, as here, the jury found the defendant guilty on the theory of premeditated and deliberate murder, as well as extreme atrocity or cruelty, it is highly unlikely that the defendant was prejudiced by the instruction. See Commonwealth v. Blackwell, 422 Mass. 294, 300, 661 N.E.2d 1330 (1996) (Hunter error not prejudicial where jury clearly found defendant guilty on another theory of murder).

c. Voluntariness-humane practice.

Several inculpatory statements made by the defendant were admitted in evidence. Motions to suppress the statements were denied. The defendant does not appeal from the denial of these motions, but instead argues that the instruction on the voluntariness of these statements was error because it failed to enumerate the factors to be considered in making this determination, especially the effect of intoxication. The defendant did not object to this aspect of the instruction. We conclude that the instruction was sufficient in light of the evidence at trial. "Although the instruction appropriately might have contained more detail, it was correct." Commonwealth v. Grenier, 415 Mass. 680, 688, 615 N.E.2d 922 (1993). See Commonwealth v. Mello, 420 Mass. 375, 385, 649 N.E.2d 1106 (1995). We discern no substantial likelihood of a miscarriage of Justice arising from the charge on voluntariness.

d. Prior inconsistent statements.

During his instructions on the evidentiary weight of prior inconsistent statements, the Judge concluded an otherwise accurate description of the law by saying, "The present statement is relevant only to the witness's credibility, and you may not take it as proof of any fact contained in it" (emphasis added). The instruction would be accurate if the word "prior" is substituted for the word "present." See Commonwealth v. Pierce, 419 Mass. 28, 39-41, 642 N.E.2d 579 (1994). See generally P.J. Liacos, Massachusetts Evidence § 6.6.2 (c), at 282-286 (6th ed. 1994). Even as the record indicates, the mistake is relatively innocuous and there was no objection.

Furthermore, the Commonwealth notes that there was no evidence of any prior statements that were inconsistent with testimony at trial. The defendant offers no examples of actual or potential prejudice as a result of the misstatement. We conclude that any error in the instruction did not create a substantial likelihood of a miscarriage of Justice. See Commonwealth v. Anderson, 396 Mass. 306, 316, 486 N.E.2d 19 (1985).

e. Cumulative error and ineffective assistance of counsel.

The defendant argues that, even if none of the above errors requires reversal separately, the combined effect of the mistakes was so prejudicial that it created a substantial likelihood of a miscarriage of Justice. We disagree. The cumulative error was no more prejudicial than the individual errors, which had minimal impact. See Commonwealth v. Fuller, 421 Mass. 400, 410-413, 657 N.E.2d 1251 (1995); Commonwealth v. Garcia, 379 Mass. 422, 441-442, 399 N.E.2d 460 (1980).

In the alternative, the defendant asks us to determine that the trial counsel's failure to object to these errors constituted ineffective assistance of counsel. "If an error not objected to by trial counsel does not create a substantial likelihood of a miscarriage of Justice, see G. L. c. 278, § 32E . . . a claim of ineffective assistance of counsel with respect to such error will not succeed, Commonwealth v. Wright, 411 Mass. 678, 681-682, 584 N.E.2d 621 (1992)." Commonwealth v. Waite, 422 Mass. 792, 807, 665 N.E.2d 982 (1996).

3. Evidentiary error.

The defendant claimed that he had been acting in self-defense. He told a television news reporter (in an audiotaped interview that was played for the jury) that, on the day of his wife's death, she had attacked him with a pan of boiling tea and a large kitchen knife. There was evidence that the defendant had burns on his hands that were consistent with the story. In an attempt to develop this theory, defense counsel sought to cross-examine the victim's son about any arguments he may have had with his mother, apparently to elicit testimony that she had reacted violently in some instances. The Commonwealth objected. At sidebar, defense counsel made an offer of proof. The Judge sustained the objection, noting that the fact that a mother may have hit her son while disciplining him was not relevant to the self-defense issue. The relevant portion of the colloquy is set out in the margin.

The Judge has broad discretion to determine the extent of cross-examination, see Commonwealth v. Clarke, 418 Mass. 207, 212, 635 N.E.2d 1197 (1994), and to exclude evidence of limited probative value, see Commonwealth v. Palmariello, 392 Mass. 126, 137-138, 466 N.E.2d 805 (1984). Evidence of past violent acts against a third party by the victim is admissible where there is evidence of "recent, specific instances of the victim's violent conduct, known to the defendant at the time of the homicide." Commonwealth v. Fontes, 396 Mass. 733, 735, 488 N.E.2d 760 (1986). Determining which types of specific acts by the victim are relevant to the issue of self-defense is a matter "left to the sound discretion of the Judge." Commonwealth v. Rodriquez, 418 Mass. 1, 6, 633 N.E.2d 1039 (1994). Here, even if the defendant knew that the victim had used physical force to discipline her son on specific recent occasions (an assertion not at all clear from the record), the Judge had discretion to exclude the evidence on the basis of its limited probative value. There was no error. Cf. Commonwealth v. Rodriquez, supra.

4. Prosecutorial error.

In his closing statement, the prosecutor referred to the defendant on several occasions as a "liar" who had constructed a "cunning charade" to mislead the police. There was no objection. The defendant argues that the prosecutor improperly gave his personal opinion of the defendant's guilt and credibility. See Commonwealth v. Chavis, 415 Mass. 703, 713, 616 N.E.2d 423 (1993); S.J.C. Rule 3:07, Canon 7, DR 7-106 (C) (4), as appearing in 382 Mass. 787 (1981). But cf. Commonwealth v. Yesilciman, 406 Mass. 736, 745-746, 550 N.E.2d 378 (1990).

It is well established that " prosecutor may not assert his or her personal opinion as to the credibility of a witness or the guilt of an accused." Commonwealth v. Chavis, supra at 713. "However, the prosecutor may comment on evidence developed at trial and draw inferences from such evidence." Id. In this case the prosecutor probably crossed the line of fair comment on the evidence and offered his opinion of the defendant's credibility. We conclude, however, that, in the context of the Judge's instructions and the weight of the Commonwealth's case, any error was not so prejudicial as to create a substantial likelihood of a miscarriage of Justice. See Commonwealth v. Campbell, 394 Mass. 77, 88 & n.11, 474 N.E.2d 1062 (1985); Commonwealth v. Cameron, 385 Mass. 660, 669-670, 433 N.E.2d 878 (1982); Commonwealth v. MacDonald, 368 Mass. 395, 400-401, 333 N.E.2d 189 (1975).

5. Sufficiency of evidence.

The defendant argues that there was insufficient evidence for a guilty finding on either the premeditated and deliberate murder theory or the extreme atrocity theory, and therefore, the Judge erred in denying his motion for a required finding of not guilty. We disagree. There was ample evidence to convict on both theories. With regard to deliberate premeditation, the evidence would permit a rational jury to infer that the defendant waited until the victim's son was at work, that he approached his wife from behind with a wire, and strangled her by tightening the wire around her neck. With regard to extreme atrocity or cruelty, the prosecution's expert testified that: there were multiple wounds on the victim's body; she was strangled by a wire and then a rope; she was conscious for at least fifteen seconds after strangulation began and remained alive for three to five minutes; and there were indications of a conscious struggle. These facts amply support a finding of premeditated and deliberate murder, see Commonwealth v. Judge, 420 Mass. 433, 441, 650 N.E.2d 1242 (1995); Commonwealth v. Chipman, 418 Mass. 262, 269-270, 635 N.E.2d 1204 (1994); Commonwealth v. Basch, 386 Mass. 620, 622, 437 N.E.2d 200 (1982), as well as murder by extreme atrocity or cruelty, see Commonwealth v. Simmons, 419 Mass. 426, 646 N.E.2d 97 (1995); Commonwealth v. Tanner, 417 Mass. 1, 2, 627 N.E.2d 895 (1994).

6. Relief under G. L. c. 278, § 33E.

We have reviewed the entire record pursuant to our responsibilities under G. L. c. 278, § 33E. There was sufficient evidence to convict, and any errors did not create a substantial likelihood of a miscarriage of Justice. Therefore, we decline to exercise our extraordinary power to reverse the conviction or reduce the degree of guilt.


Judgment affirmed.

 

 

 
 
 
 
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