NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-11556

COMMONWEALTH vs. MIKOLAJ K. LETKOWSKI.

Hampden. April 10, 2014. - September 9, 2014.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, 

& Lenk, JJ.1

Kidnapping. Rape. Robbery. Assault and Battery by Means of a 

Dangerous Weapon. Intimidation of Witness. Witness, 

Intimidation. Constitutional Law, Admissions and 

confessions, Voluntariness of statement. Evidence, 

Admissions and confessions, Voluntariness of statement.

Practice, Criminal, Admissions and confessions, 

Voluntariness of confession, Argument by prosecutor.

Indictments found and returned in the Superior Court 

Department on June 8, 2006.

A pretrial motion to suppress evidence was heard by Peter 

A. Velis, J., and the cases were tried before Daniel A. Ford, J.

After review by the Appeals Court, the Supreme Judicial 

Court granted leave to obtain further appellate review.

Charles W. Rankin (Kerry A. Haberlin with him) for the 

defendant.

Bethany C. Lynch, Assistant District Attorney, for the 

Commonwealth.

 

1 Chief Justice Ireland participated in the deliberation on 

this case prior to his retirement.
2

BOTSFORD, J. After a jury trial, the defendant, Mikolaj 

Letkowski, was convicted of aggravated kidnapping, aggravated 

rape, armed robbery, assault and battery by means of a dangerous 

weapon, and intimidation of a witness. The defendant appealed, 

and the Appeals Court affirmed the convictions. Commonwealth v. 

Letkowski, 83 Mass. App. Ct. 847 (2013). We granted the 

defendant's application for further appellate review, limited to 

issues concerning the prosecutor's references to the defendant's 

invocation of his rights as set forth in Miranda v. Arizona, 384 

U.S. 436, 444-445 (1966), at trial. We conclude that the 

prosecutor's references to the defendant's invocation of his 

Miranda rights were improper. We conclude also, however, that 

in the particular circumstances of this case, the improper 

references, which were not objected to at trial, did not raise a 

substantial risk of a miscarriage of justice. We affirm the 

defendant's convictions.

1. Background. a. Facts. The jury could have found the 

following. At approximately 11:30 P.M. on April 17, 2006, the 

victim, a student at a college in Springfield, drove from her 

off-campus job and entered the parking lot of her campus 

dormitory. When she pulled into the parking lot, she noticed 

the defendant walking on the sidewalk near one of the 

dormitories. The victim parked her car. While she was 
3

collecting her belongings from it, the defendant approached her 

and asked whether she knew where a set of nearby dormitories was 

located. After answering him, the victim returned to gathering 

her belongings; when she turned around again, the defendant had 

a knife in his hand and ordered the victim back into her car. 

He then ordered the victim to give him one hundred dollars, but 

she told him that she did not have that much money on her. The 

defendant drove the victim's motor vehicle (with the victim in 

the front passenger seat) to an automated teller machine (ATM) 

in West Springfield, declining to go to the ATM across from the 

college because, as he later told the police, it was too well 

lit and was close to a coffee shop which was frequented by the 

police.2

Once they arrived at the ATM, the defendant ordered the 

victim to switch places with him; she complied and moved into 

the driver's seat. He placed a black winter hat over his face 

as the victim drove through the ATM and aimed his face toward 

the passenger's side door to avoid being detected by video 

cameras. The victim removed sixty dollars from her bank 

account; the defendant removed the hat from his face only after 

they left the ATM.

 

2 The facts we set out here include some explanations of the 

defendant's reasons for taking certain actions. The source of 

this evidence is either the defendant's statement to the police 

that was admitted at trial or the victim's testimony as to what 

the defendant said to her.
4

The defendant then directed the victim to an apartment 

complex in Agawam where his former girl friend used to live. He 

took the victim to the woods behind the complex and twice forced 

her to perform oral sex; he also digitally penetrated her. 

During the second instance of oral sex, a car pulled into the 

apartment complex, which prompted the defendant to have the 

victim stop and to tell her that, if anyone came into the woods,

she should tell them that they were just "making out." The 

defendant then hit the victim with a belt, directed her to get 

dressed, brought her to the bottom of a hill, and told her that 

he did not believe that she would not go to the police and that 

he could just stab her then and throw her in some nearby water.

They returned to the car, and the victim drove back toward 

campus. The defendant made her enter campus from a particular 

direction that had fewer lights and video cameras. Once the 

victim parked her car near her dormitory, the defendant escorted 

her to her door. Before leaving, he insisted that, should the 

victim go to the police, he knew her home address and where she 

lived on campus so he could find her.3

The next day, Longmeadow police officers seized both a knit 

hat and a knife from the defendant's car during a valid traffic 

 

3 Before the defendant and the victim arrived at the 

automated teller machine (ATM) in West Springfield, the 

defendant asked her for her driver's license. He wrote down her 

name and her address on a piece of paper he found in the 

victim's vehicle.
5

stop of the defendant, but did not arrest him at that point. 

The defendant later admitted to police that the knit hat 

recovered was the one used during the robbery.

4 In addition, a 

piece of paper containing the victim's name and information was 

recovered from a trash barrel outside the defendant's home 

during the execution of a search warrant. Analysis of

fingerprints lifted from the victim's car revealed that the 

fingerprints located on the driver's front door window and 

passenger's front door window matched the defendant's prints. 

The defendant's deoxyribonucleic acid (DNA) was also a match 

with a vaginal swab taken from the victim.5

b. The defendant's statement to police.

6 On April 19, 

2006, the defendant was arrested in his parents' home. The 

defendant's mother provided the arresting officers with the 

 

4 The defendant indicated in his interview with police that 

a knife the police recovered during the search of his car was 

the knife that he had carried with him in a gym bag when he 

committed the robbery, although he initially denied using the 

knife against the victim.

5 Amylase, an enzyme found in human saliva, was detected on 

the victim's vaginal swab and served as the basis for the 

positive match of the defendant's deoxyribonucleic acid (DNA).

6 The facts relied on here are principally taken from the 

motion judge's findings of fact on the defendant's motion to 

suppress.
6

defendant's prescription pain medication,7 and he was thereafter 

taken to the Springfield police department. On arrival, the 

defendant was read the Miranda warnings, as well as his right to 

a prompt arraignment. He told the officers that he understood 

those rights but stated that he did not wish to speak with them.8 

After this invocation, the officers took the defendant to be 

booked; in conjunction with the booking process, he was 

photographed and fingerprinted, and submitted to a DNA test. 

While he was in the booking area, the defendant received some of 

his prescription pain medication.

After his fingerprints had been taken and the DNA swab 

obtained, the defendant told the officers that he wanted to give 

a statement. Accordingly, two hours after he had initially 

invoked his Miranda rights, the defendant was escorted back to 

the police interview room where he again was advised of his 

Miranda rights and his right to prompt arraignment. He 

indicated that he understood the rights and that he wanted to 

talk with the officers. The defendant's resulting statement 

 

7 On April 18, 2006, the defendant was assaulted and 

sustained facial injuries. He was prescribed medication to 

alleviate the pain.

8 Before he was read the Miranda warnings, the defendant 

informed the officers that he was receiving methadone 

maintenance treatment but had missed receiving his dose the 

morning of the arrest.
7

contained portions that implicated him in the robbery of the 

victim but denied sexually assaulting and beating her.

c. The references to the defendant's invocation of his 

Miranda rights. Before trial, the defendant moved to suppress 

his statements to the police, asserting, in part, that his 

statements were not voluntary because the officers withheld the 

defendant's prescription pain medication and told him they would 

provide the defendant with his medication if he reconsidered 

talking to them. After an evidentiary hearing, the motion 

judge, who was not the trial judge, did not accept the 

defendant's allegation about withheld medication, concluded that 

the defendant's statements were voluntary based on the totality 

of the circumstances, and ultimately denied the motion to 

suppress in its entirety. The defendant based his defense at 

trial on his claim that he lacked criminal responsibility, and 

informed the prosecutor and the trial judge at the outset of the 

trial that voluntariness of the defendant's statements to the 

police remained a live issue.

In three different portions of the trial, the prosecutor 

referred to the defendant's initial invocation of his Miranda 

right to remain silent and not to speak with police: during her 

direct examination of Detective Eugene Dean of the Springfield 

police department; in her cross-examination of the defendant's 

expert witness, Dr. Melvin Lurie; and in her closing argument.
8

(i) Detective Dean. On the first day of Dean's testimony, 

the prosecutor elicited in her direct examination the following:

The prosecutor: "[C]an you explain to the ladies and 

gentlemen of the jury how you went over the Miranda 

warnings with him?"

The witness: "Line by line. Read question number one, and 

he would read before we ask him any questions. . . . 

Number eight is, 'Having these rights in mind, do you wish 

to talk to me now?' Stated he understood it, put his 

initials, but then wrote the word 'no', meaning he did not 

wish to talk with us any further."

. . . 

The prosecutor: "Showing you this document, can you 

explain to the ladies and gentlemen of the jury what that 

document is."

The witness: "Yes. That document is your right to a 

prompt arraignment . . . ."

The prosecutor: "Did you go over that document with [the 

defendant]?"

The witness: "Yes, in the same manner as I did in the 

first document. . . . 'Having these rights in mind, do you 

wish to talk to me now?' He again wrote, 'No.'"

The prosecutor thereafter introduced into evidence the "Miranda 

Warning" and "Arraignment Warning" forms, both of which

evidenced the defendant's initial invocation of his right to 

remain silent in his own handwriting. This testimony of Dean 

and these forms provided the first references to the defendant's 

invocation of his Miranda rights at trial.9

 

9 The defendant did not object to either the testimony or 

the admission of the forms from the first interview on the 
9

On the second day of Dean's testimony, the prosecutor again 

referred to the defendant's invocation through her questioning:

The prosecutor: "I think you told us on Friday, initially, 

the defendant indicated that he did not wish to speak to 

you; is that correct?" (Emphasis added.)

The witness: "That's correct."

The judge: "Which is --"

The prosecutor: "Which is his right?"

The witness: "It is, indeed, his right."

. . . 

The prosecutor: "At that time, you brought him back down 

to the booking area . . . so that he could continue with 

the booking process; is that correct?"

The witness: "That's correct."

The prosecutor: "It was at that point that he was booked 

and fingerprinted?"

The witness: "Correct."

The prosecutor: "And then he came back upstairs and

decided to change his mind. He did want to talk to you?"

(Emphasis added.)

The witness: "He had told us that while we were downstairs 

that he requested to go back upstairs."

The prosecutor: "After he was fingerprinted?"

The witness: "After he was fingerprinted and after he gave 

a DNA sample."10

 

grounds that his invocation of his Miranda rights was being used 

against him.

10 The defendant did not raise an objection to the questions 

posed or testimony elicited on this second day of testimony.
10

(ii) Dr. Lurie. During her cross-examination of the 

defendant's expert, the following exchange occurred:

The prosecutor: "Now, would it be fair to say that you 

know that, initially, the defendant did not want to speak 

to the police. He went through his rights and said, [']no, 

I don't want to.[']"

The witness: "Right."

. . .

The prosecutor: "[A]re you aware it was after he got 

fingerprinted that he indicated he was willing to speak to 

the police?"

The witness: "That might be the case; that might not be. 

If you tell me it is, then I don't have reason to doubt 

it."

. . .

The prosecutor: "Now, is -- could it be -- hypothetically, 

if a person realizes that they are getting fingerprinted, 

and they realize that they touched something that was used 

in the course of a crime, hypothetically, is it not 

reasonable to assume that a person thinks they might have 

my fingerprints, I'm going to tell them my side of the 

story."11

(iii) Closing argument. In her closing, the prosecutor 

rehearsed the various actions taken by the defendant during the 

criminal events that, the prosecutor argued, showed that the 

defendant was criminally responsible and described them as 

"calculated" actions. The prosecutor then stated:

"What I suggest [is] he calculated the scenario -- at 

first, he said he didn't want to talk to the police which 

is his right. He has every right to say he did not want to 

 

11 The defendant only objected to the final hypothetical 

question in this exchange; the objection was overruled.
11

talk to the police and that should not be taken against 

him.

"But, then he finishes the booking process. What does 

that involve? They are rolling his fingerprints, and he's 

thinking to himself as they are rolling finger by finger by 

finger by finger, damn, damn. I drove that girl's car. I 

touched the steering wheel. Okay. I want to talk to the 

cops. I want to tell my side of the story."

. . .

"It wasn't impulsive behavior. It was cold. It was 

calculated. And he should be punished for it."

12

 

2. Discussion. a. Prosecutor's use of defendant's 

invocation of right to silence. At trial, the defendant 

conceded that he committed the acts of aggravated kidnapping, 

aggravated rape, assault and battery with a dangerous weapon, 

and intimidation of the victim that were at issue in the case; 

his defense, and the question in dispute, was whether he was 

criminally responsible for those acts. Relying principally on

Doyle v. Ohio, 426 U.S. 610, 617-619 (1976), and Commonwealth v. 

Madhi, 388 Mass. 679, 694-697 (1983), he argues that the 

prosecutor's several references to his initial invocation of his 

right to remain silent violated his constitutional due process 

rights in that the prosecutor was using the defendant's 

invocation to argue, impermissibly, that he was indeed 

 

12 The defendant did not raise an objection to the 

prosecutor's closing argument at trial.
12

criminally responsible.13 We agree with the defendant. We begin 

with the governing constitutional principles.

"There is no question that, under the fundamental 

principles of jurisprudence, evidence of a criminal defendant's 

postarrest, post-Miranda silence cannot be used for the 

substantive purpose of permitting an inference of guilt . . . ." 

Mahdi, 388 Mass. at 694, citing United States v. Hale, 422 U.S. 

171, 175, 181 (1975). This prohibition exists because

"[s]ilence in the wake of these warnings may be nothing 

more than the arrestee's exercise of these Miranda rights. 

Thus, every post-arrest silence is insolubly ambiguous 

because of what the State is required to advise the person 

being arrested. . . . Moreover, while it is true that the 

Miranda warnings contain no express assurance that silence 

will carry no penalty, such assurance is implicit to any 

person who receives the warnings."

 

13 The defendant advanced this same argument before the 

Appeals Court. That court viewed the prosecutor's references to 

the defendant's initial invocation during her direct examination 

of Detective Eugene Dean as being intended to respond to the 

defendant's claim that his statement to the police was not 

voluntary. Commonwealth v. Letkowski, 83 Mass. App. Ct. 847, 

853-854 (2013). The court concluded, however, that the 

references came before the defendant had raised the 

voluntariness issue at trial and therefore were improper as a 

matter of timing. See id. at 855-856. Nevertheless, because 

the defendant later did raise the voluntariness of his statement 

as a trial issue, in the Appeals Court's view, the prosecutor's 

questioning of the detective about the defendant's initial 

invocation ultimately would have been admissible, and the timing 

error did not create a substantial risk of a miscarriage of 

justice. Id. at 856-857. As for the prosecutor's references to 

the defendant's initial invocation during her cross-examination 

of the defendant's expert and in her closing argument, the 

Appeals Court opined that the references "came dangerously close 

to using the defendant's initial silence against him and should 

not have been said[,]" id. at 856.
13

Commonwealth v. Cobb, 374 Mass. 514, 520-521 (1978), quoting 

Doyle, 426 U.S. at 617-618. See Commonwealth v. Beneche, 458 

Mass. 61, 73 (2010), quoting Commonwealth v. Peixoto, 430 Mass. 

654, 658-659 (2000). See also Commonwealth v. Waite, 422 Mass. 

792, 797 (1996). Moreover, "[f]undamental unfairness results 

from the use of evidence of such silence regardless whether the 

person exercising his or her constitutional right to remain 

silent claims insanity as a defense." Mahdi, supra at 695.14

There are, however, "rare instances where evidence of a 

defendant's postarrest, post-Miranda silence . . . may be 

admissible." Commonwealth v. DePace, 433 Mass. 379, 383 (2001), 

overruled on other grounds, Commonwealth v. Carlino, 449 Mass. 

71, 80 (2007). Such instances include explaining why a police 

 

14 See Wainwright v. Greenfield, 474 U.S. 284, 292 (1986), 

where the United States Supreme Court rejected a State's 

argument that Doyle v. Ohio, 426 U.S. 610, 617-619 (1976), did 

not preclude the State from contending that a defendant's postMiranda invocation of his right to remain silent and not to 

speak with the police was evidence that he did not lack criminal 

responsibility:

"The point of the Doyle holding is that it is 

fundamentally unfair to promise an arrested person that his 

silence will not be used against him and thereafter to 

breach that promise by using the silence to impeach his 

trial testimony. It is equally unfair to breach that 

promise by using silence to overcome a defendant's plea of 

insanity. In both situations, the State gives warnings to 

protect constitutional rights and implicitly promises that 

any exercise of those rights will not be penalized. In 

both situations, the State then seeks to make use of the 

defendant's exercise of those rights in obtaining his 

conviction. The implicit promise, the breach, and the 

consequent penalty are identical in both situations."
14

interview of the defendant abruptly ended and the jury would be 

confused without the explanation, see Commonwealth v. Habarek, 

402 Mass. 105, 110 (1988), S.C., 421 Mass. 1005 (1995); 

rebutting the defendant's suggestion at trial that some 

impropriety on the part of the police prevented him from 

completing his statement to them, see id.; and rebutting a claim 

by the defendant that he had given the police at the time of his 

arrest the same exculpatory explanation as he was presenting to 

the jury at trial. See DePace, supra at 383-384. None of these 

exceptions applies in this case.

(i) Direct examination of Detective Dean. The 

Commonwealth contends that the prosecutor was justified in 

eliciting that the defendant initially invoked his right to 

remain silent during her direct examination of Dean to (1) 

"provide a complete picture of the defendant's interaction with 

the police," and in particular to explain why the first 

interview ended in very short order; and (2) rebut the 

defendant's theory that the statements elicited during his 

second police interview were not voluntary. We disagree.

When a defendant gives a statement to the police, it is 

permissible for the Commonwealth to present a fair and 

reasonably complete picture of the interaction between police 

and the defendant, including the administration of Miranda 

warnings and the defendant's responses to questions posed to him 
15

during that process. See, e.g., Commonwealth v. Toolan, 460 

Mass. 452, 472 (2011); Habarek, 402 Mass. at 110. In this case, 

the defendant gave a statement to the police when they brought 

him back to the interview room in response to his request near 

the end of the booking process. The Commonwealth was entitled 

to, and did, present a full account of that interrogation 

through the prosecutor's direct examination of Dean. The 

defendant's earlier invocation of his right to remain silent was 

a distinct event, separated by time and circumstances; clearly, 

there was no need, in the name of fairness or completeness, to 

include a description of that event in presenting evidence about 

the defendant's postbooking waiver of Miranda rights and police 

interview.

In addition, the Commonwealth's reliance on Habarek, 402 

Mass. at 109-110, is misplaced.15 Unlike that case, where the 

 

15 In Commonwealth v. Habarek, 402 Mass. 105 (1988), S.C., 

421 Mass. 1005 (1995), the defendant, after waiving his Miranda 

rights, spoke to a police officer, provided some information, 

and then stated that he did not want to say any more, at which 

point the interview ended. Id. at 109 & n.1. At trial, the 

interrogating officer recounted the entire interview on direct 

examination, including the defendant's statement about not 

wanting to say more. Id. at 109. Then, following a question by 

defense counsel during cross-examination about the fact that the 

interview had not been taped, id., the officer stated on 

redirect that no tape had been made because the defendant 

"exercised his right to remain silent so I terminated the 

conversation." Id. at 110. We concluded that although "[t]here 

should be no comments on the defendant's claim of his rights 

under the Fifth Amendment to the United States Constitution[,]" 

the officer's direct examination testimony about the defendant's 
16

defendant waived his Miranda rights and spoke to the police 

about the alleged crime in question for at least a short while 

(see note 15, supra), in this case, Dean did not conduct any 

interview of the defendant the first time he and the defendant 

spoke, precisely because upon receiving the Miranda warnings, 

the defendant stated he did not want to speak with the police.

See DePace, 433 Mass. at 384 ("The rule in Habarek does not 

apply to the present case [. . . .] Here, there was no evidence 

of any interview, much less one that ended abruptly"). See also 

Commonwealth v. King, 34 Mass. App. Ct. 466, 469 (1993).16 The 

 

request to end the interview was necessary to not leave the jury 

"wondering why the interview ended abruptly," id.; and that the 

officer's reference to exercise of rights on redirect was 

permissible "in response to the inferences left by defense 

counsel on cross-examination." Id.

16 The Commonwealth also contends that it needed to present 

the defendant's invocation to the jury to explain why a second 

set of Miranda warnings were given; not to do so would leave the 

jury "without any explanation as to the unnecessary repetition." 

We are not persuaded. First of all, there was no need to 

mention the initial invocation at all, which would render 

"unnecessary repetition" a nonissue. In any event, it is not 

unusual for the police to give a suspect multiple sets of 

Miranda warnings. See, e.g., Commonwealth v. Beneche, 458 Mass. 

61, 68 (2010) (Miranda warnings given twice); Commonwealth v. 

Tolan, 453 Mass. 634, 644 (2009) (police read defendant Miranda 

warnings multiple times during interview). And, here there was 

an intervening event -- the defendant's booking -- that provided 

the jury with a sufficient explanation for why the initial 

interaction with Dean was cut short and would need to be resumed 

later in time. More to the point, we expect prosecutors, 

defense counsel, and trial judges to work together in order to 

find ways to provide juries with a reasonably complete picture 

of an interrogation without trenching on or even implicating the 

defendant's exercise of constitutional rights. See Commonwealth
17

prosecutor's references to the defendant's desire to remain 

silent were not justified under Habarek.

That the voluntariness of the defendant's statement to 

police remained a live issue at trial likewise did not justify 

the prosecutor's use of the defendant's exercise of his right to 

silence during her direct examination of Dean. It is true that 

"under the Commonwealth's 'humane practice' rule, where the 

voluntariness of a statement is a live issue at trial, the jury 

may hear evidence that a defendant was informed of and 

understood his Miranda rights." Toolan, 460 Mass. at 471. But 

evidence that Miranda warnings were provided and that the 

defendant understood them does not itself require reference to 

the fact that the defendant earlier exercised the rights 

included in those warnings. See id. at 472-473.17 This is 

particularly the case where, as here, the prosecutor introduced 

the evidence of the defendant's exercise of his Miranda rights 

 

v. Waite, 422 Mass. 792, 799 n.5 (1996). See also Commonwealth

v. Toolan, 460 Mass. 452, 472-473 (2011).

17 We recognize that a defendant's initial exercise of his 

right to silence and then a change of mind and request to speak 

to the police could be deemed probative of the voluntariness of 

the defendant's statement. But the fact that evidence might be 

relevant or probative does not mean that it can always properly 

be introduced. As suggested in note 16, supra, when

introduction of such arguably relevant evidence directly 

implicates the defendant's protected exercise of his 

constitutional rights, an inquiry as to whether alternatives are 

available should be undertaken -- before trial, if possible, and 

at sidebar during trial, if not.
18

at a time when the defendant had yet to raise the issue of 

voluntariness before the jury. The references to the fact that 

the defendant initially declined to speak to police during the 

prosecutor's direct examination of Dean constituted error.

(ii) Cross-examination of the defendant's expert. In 

cross-examining Dr. Lurie, the prosecutor again mentioned the 

defendant's initial assertion of his right to remain silent.18 

The Commonwealth argues that in doing so, the prosecutor was 

clearly addressing the voluntariness of the defendant's 

statement, and that she was careful to distinguish the 

"voluntariness" line of questioning from her questions that 

dealt with the defendant's criminal responsibility. The 

defendant disputes this characterization. He contends that the 

 

18 The pertinent portions of the cross-examination are set 

out in the fact section of this opinion. To summarize, the 

prosecutor asked Dr. Lurie if he knew the defendant had 

initially invoked his right not to speak with the police, and, 

following some intervening questions, asked if Lurie knew that, 

after the defendant was fingerprinted, he wanted to speak to the 

police. The prosecutor then asked this question:

"Now, is -- could it be -- hypothetically, if a 

person realizes that they are getting fingerprinted, and 

they realize that they touched something that was used in 

the course of a crime, hypothetically, is it not reasonable 

to assume that a person thinks they might have my 

fingerprints, I'm going to tell them my side of the story."

After defense counsel's objection was overruled, Lurie 

answered that he thought the fingerprints issue was irrelevant -

- what mattered was that the defendant was desperate for pain 

medication, and, Lurie stated, the defendant agreed to give a 

statement in exchange for receiving medicine.
19

true focus of the prosecutor's references to the defendant's 

assertion of his right to silence and then waiver was on his 

capacity to appreciate the wrongful nature of his conduct and to 

take steps post hoc to exculpate himself -- that is, the focus 

was on the defendant's criminal responsibility.19

It is true Dr. Lurie testified that, in his opinion, the 

defendant's statement to the police was not voluntary. But just 

as it was not necessary for the prosecutor to refer to the 

defendant's initial invocation of his rights in order to address 

the voluntariness issue with Detective Dean, it was equally 

unnecessary in cross-examining Lurie. The prosecutor could have 

asked questions to challenge Lurie's view on voluntariness 

without the reference, and certainly could have posed the same 

hypothetical question whether a person in the defendant's 

position who had been fingerprinted would want to tell his story 

to the police without any mention of the defendant's earlier 

exercise of his right not to speak. See Wainwright v. 

 

19 In particular, the defendant points out that the 

prosecutor immediately preceded her references to the 

defendant's initial decision to decline to speak to police with 

questions highlighting a series of decisions by the defendant 

during the criminal event that evidenced he was not "oblivious" 

to the consequences of his criminal behavior. The defendant 

argues that the prosecutor left the jury with the same 

impression about the defendant's invocation of his right to 

silence, i.e., that the defendant's ability first to invoke his 

Miranda rights and then waive them when he realized that "they 

might have my fingerprints" also proved that he was not 

oblivious to such consequences.
20

Greenfield, 474 U.S. 284, 295 (1986) (carefully framed questions 

can accomplish same task as comment on silence).

Moreover, assuming for the sake of argument that it would 

have been permissible to introduce evidence of the defendant's 

initial invocation in order to respond to his claim of 

involuntariness, cf. Habarek, 402 Mass. at 110, contrary to the 

Commonwealth's claim, the prosecutor's questions were not so 

focused. As the defendant points out (see note 19, supra), 

right before the prosecutor referred to the defendant's initial 

decision not to speak to police, she listed a series of the 

defendant's actions on the night the crimes were committed to 

show that he understood the consequences of his actions. The 

Commonwealth argues that the prosecutor paused following these 

questions before turning to the voluntariness issue. The 

transcript does reflect a pause, but we question whether that 

pause, by itself, was sufficient to signal to the jury that the 

prosecutor was no longer addressing the defendant's lack of 

criminal responsibility defense. Moreover, the prosecutor 

followed her reference to the defendant's invocation of his 

right to silence with more questions about particular aspects of 

the criminal episode that arguably showed appreciation and 

control (i.e., criminal responsibility). Cf. Commonwealth v. 

Acevedo, 427 Mass. 714, 716-717 (1998) (prejudice created by 
21

correct jury instruction sandwiched between two incorrect 

instructions on same issue).

In sum, the prosecutor's references to the defendant's 

invocation of the right to silence in the cross-examination of 

Lurie were improper.

(iii) Prosecutor's closing argument. The portion of the 

prosecutor's closing argument challenged by the defendant 

followed the same pattern as her cross-examination of Lurie, and 

indeed built on it. As earlier described, the prosecutor in her 

closing listed actions by the defendant that reflected his 

capacity for appreciation and control in relation to his 

conduct, characterizing them for the jury as "calculated" 

actions; she then moved to the defendant's initial exercise of 

his right to silence and subsequent decision to speak to the 

police after being fingerprinted, describing the defendant's 

thought pattern in essentially the same words as she had in her 

hypothetical question earlier posed to Lurie, and then labeling 

the entire invocation-waiver sequence as a "calculated . . . 

scenario."

The Commonwealth asserts that the prosecutor's challenged 

remarks were addressing the voluntariness of the defendant's 

statement, not his criminal responsibility, and that she was 

entitled to do so to reply to the defendant's contrary position. 

Again, assuming the propriety of raising the defendant's initial 
22

invocation of Miranda rights as a response to a defense 

challenge to voluntariness, the Commonwealth's argument ignores 

the close proximity and significant degree of parallelism 

between the portion of the prosecutor's closing argument 

countering the defendant's contention that he lacked criminal 

responsibility, and the portion purporting to address the 

voluntariness of the defendant's statement. We agree with the 

defendant that the prosecutor's closing left the impression that 

the defendant's invocation in significant part demonstrated that 

he was criminally responsible.20 This is precisely what Madhi

prohibits. See Mahdi, 388 Mass. at 694-695.

b. Effect of errors. With one partial exception, the 

defendant did not object at trial to the prosecutor's references 

to his invocation.21 Both the defendant and the Commonwealth 

agree, as do we, that the proper standard of review is whether 

 

20 Cf. Toolan, 460 Mass. at 472 (conviction reversed on 

other grounds; prosecutor's opening statement and police 

testimony focused on defendant's actions and statements about 

whether to exercise Miranda rights came "dangerously close to an 

improper suggestion that the defendant was manipulating his 

constitutional rights to his own advantage"; "[o]n remand, the 

Commonwealth should exercise care to avoid using the defendant's 

exercise of his Miranda rights against him by suggesting that 

his invocations of or deliberations on those rights demonstrated

his criminal responsibility").

21 The defendant objected to the hypothetical question the 

prosecutor asked Dr. Lurie about what a person in the 

defendant's circumstances would think about speaking to the 

police once fingerprinted, and the trial judge overruled the 

objection.
23

the errors created a substantial risk of a miscarriage of

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

Cf. Commonwealth v. Fowler, 431 Mass. 30, 42 & n.20 (2000) 

(unpreserved error concerning admission of evidence of 

defendant's invocation of right to remain silent in first degree 

murder appeal was properly reviewed under substantial likelihood 

of miscarriage of justice standard).

In Alphas, 430 Mass. at 13, this court stated:

"An error creates a substantial risk of a miscarriage of 

justice unless we are persuaded that it did not materially 

influence[] the guilty verdict. . . . In making that 

determination, we consider the strength of the 

Commonwealth's case against the defendant (without 

consideration of any evidence erroneously admitted), the 

nature of the error, . . . whether the error is

sufficiently significant in the context of the trial to 

make plausible an inference that the [jury's] result might 

have been otherwise but for the error, and whether it can 

be inferred from the record that counsel's failure to 

object was not simply a reasonable tactical decision"

(quotations, citations, and footnotes omitted).

See Commonwealth v. Randolph, 438 Mass. 290, 297-298 (2002) 

(review of denial of motion for new trial; articulation of 

factors for reviewing substantial risk of miscarriage of 

justice).22

 

22 The factors set forth in Commonwealth v. Madhi, 388 Mass. 

679, 696-697 (1983), are ones that the court originally set out 

for determining whether the Commonwealth's impermissible use of 

the defendant's invocation of his right to remain silent at 

trial was harmless beyond a reasonable doubt -- a standard which 

does not apply to unpreserved errors. See Commonwealth v. 

LeFave, 430 Mass. 169, 174 n.6 (1999). A number, but not all, 

of this court's decisions reviewing convictions of murder in the 
24

We first review the considerations set forth in Alphas. As 

to the strength of the Commonwealth's case, the defendant 

admitted to committing the acts constituting the crimes charged, 

and even without the evidence of the defendant's invocation of 

 

first degree have applied the Mahdi factors when determining 

whether such error, unpreserved at trial, raised a substantial 

likelihood of a miscarriage of justice. See, e.g., Commonwealth

v. Adams, 434 Mass. 805, 811-815 (2001) (applying Madhi factors 

to introduction of defendant's postarrest silence as evidence of 

criminal responsibility to determine whether errors created 

substantial likelihood of miscarriage of justice). Cf. 

Commonwealth v. Johnston, 467 Mass. 674, 690-691 (2014) (using 

Madhi factors to determine whether admission of defendant's 

requests to confer with counsel created substantial likelihood 

of miscarriage of justice). But see Commonwealth v. Fowler, 431 

Mass. 30, 42-43 & n.20 (2000) (unpreserved error concerning 

invocation of right to silence; court concluded there was no

substantial likelihood of miscarriage of justice based solely on 

strength of Commonwealth's case). Decisions also have varied in 

using the Madhi factors to assess whether an unpreserved Doyle

error raises a substantial risk of a miscarriage of justice. 

Compare Commonwealth v. Connolly, 454 Mass. 808, 829 (2009) 

(stating that court uses five Madhi factors to determine whether

unpreserved Doyle error created substantial risk of miscarriage 

of justice), and Commonwealth v. Ewing, 67 Mass. App. Ct. 531, 

544-545 (2006), S.C., 449 Mass. 1035 (2007) (looking at Madhi

factors to determine whether prosecutor's impermissible but 

unobjected-to questions and comments infringing on defendant's 

right to remain silent after arrest created substantial risk of 

miscarriage of justice), with Commonwealth v. Brown, 451 Mass. 

200, 209 (2008), citing Commonwealth v. Alphas, 430 Mass. 8, 13 

(1999) (analyzing whether unpreserved possible Doyle issue 

created substantial risk of miscarriage of justice; no mention 

of Mahdi factors). The Commonwealth and the defendant have 

applied the Mahdi factors in their arguments before this court, 

and in assessing whether the defendant was prejudiced by the 

errors, we consider in the text first the substantial risk 

factors set forth in Alphas, supra at 13, and then the Madhi

factors. The difference between the two sets of factors is not 

great. We leave for decision in another case the question which 

set properly should apply to determine whether an unpreserved 

Doyle error creates a substantial risk of a miscarriage of 

justice and requires reversal.
25

his Miranda rights, the Commonwealth's case that the defendant 

was criminally responsible was very strong. The testimony of 

the victim, as well as the defendant's own statement to the 

police, provided detailed, compelling evidence that the 

defendant understood and appreciated that what he was doing was 

criminal and that he had the capacity to direct and control his 

behavior.23 Turning to the nature of the error and the failure 

of defense counsel to object, for all the reasons we have 

discussed previously, the prosecutor's various references to the 

defendant's initial invocation constituted a constitutional 

error that at least in part related to the premise of the 

defense. Nevertheless, in the context of the other evidence 

presented at trial, the error does not create a plausible 

 

23 The defendant through his statement, and the victim 

through her testimony, provided the jury with information that 

during the criminal episode: (1) the defendant drove the 

victim's car as part of the abduction rather than his own; (2)

the defendant drove with the victim to an ATM in West 

Springfield rather than the ATM near the college because that 

ATM was well-lit and near a coffee shop frequented by police; 

(3) once they arrived at the West Springfield ATM, the defendant 

switched places with the victim and moved from the driver's seat 

to the passenger's seat, pulled a hat over his face, and looked 

toward the passenger's window, all to avoid being detected on 

the drive-through ATM's video camera; (4) the defendant 

thereafter took the victim to an apartment complex that he knew 

had a wooded area where he and the victim would be shaded from 

view; (5) during the criminal episode, the defendant wrote the 

victim's name and information down on a piece of paper, and 

threatened to harm the victim should she go to the police; and 

(6) he also directed her to use a particular entrance of the 

college when they returned to the campus because there were 

fewer lights and video cameras.
26

inference that if it had not occurred, the jury would have 

decided the case differently. See Commonwealth v. Miranda, 22 

Mass. App. Ct. 10, 21 (1986). In these circumstances, we 

conclude that no substantial risk of a miscarriage of justice 

occurred in this case.

Finally, we turn to the factors that the court set out in 

Mahdi, 388 Mass. at 696-697, for assessing the degree of harm 

caused by constitutional evidentiary errors. See note 22, 

supra. The Mahdi factors are: "(1) the relationship between 

the evidence and the premise of the defense; (2) who introduced 

the issue at trial; (3) the weight or quantum of evidence of 

guilt; (4) the frequency of the reference; and (5) the 

availability or effect of curative instructions." Id. 

(footnotes omitted). Many of the factors weigh against the 

Commonwealth here. The prosecutor's references to the 

defendant's invocation of Miranda rights, when used to suggest 

criminal responsibility, directly connected to the premise of 

the defendant's defense (factor 1); the Commonwealth introduced 

the evidence at trial (factor 2); the prosecutor referred to the 

invocation in three contexts (factor 4); and there were no 

targeted curative instructions by the judge (factor 5) --

although the absence of such instructions is consistent with the 

evidence being admitted without objection. See Commonwealth v. 
27

Adams, 434 Mass. 805, 812 (2001).24 But as discussed, the 

victim's testimony and, significantly, the defendant's own 

statement described the series of intentional actions he took 

during the criminal episode and offered explanations for those 

actions (see note 23, supra), and these explanations provided 

very powerful evidence of the defendant's ability to appreciate 

both the wrongfulness of his actions and his ability to conform 

his actions to the requirements of law -- i.e., that he 

possessed criminal responsibility while committing the crimes 

(factor 3). See id. at 814 ("lengthy laundry list of rational, 

calculating, nondelusional conduct . . . admittedly engaged in 

by [the defendant] before, during, and just after the crime" 

supported "[the Commonwealth's] expert's testimony that [the 

defendant] was fully capable of complex thought and action when 

he committed the murders, and was able to appreciate the 

wrongfulness of his conduct and form it to the requirements of 

the law" [footnote omitted]). See also Fowler, 431 Mass. at 42-

43.25 In light of the strength of the evidence of the 

 

24 Moreover, the fact that the defendant ultimately spoke

with the police serves to mitigate the potential for 

impermissible inferences being drawn by the jury from the 

defendant's initial refusal to speak with them. See 

Commonwealth v. Peixoto, 430 Mass. 654, 658 n.4, 661 (2000).

25 In cases of murder in the first degree where the 

substantial likelihood of a miscarriage of justice standard 

applies, Mahdi indicates that where a clear Doyle error occurs 
28

defendant's criminal responsibility, even considering the Mahdi

factors, we conclude that there was no substantial risk of a 

miscarriage of justice, and reversal of the defendant's 

convictions is not warranted.

3. Conclusion. The prosecutor's references to the 

defendant's invocation of his right to remain silent constituted 

error but they did not create a substantial risk of a 

miscarriage of justice. For the reasons stated by the Appeals 

Court, Letkowski, 83 Mass. App. Ct. at 858-859, the case is 

remanded to the Superior Court for further proceedings.

So ordered.

 

"reversal is the norm, not the exception." Mahdi, 388 Mass. at 

698.