NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-131

COMMONWEALTH

vs.

JOEL MONEGRO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Joel Monegro, was indicted for murder in 

connection with the stabbing death of his wife, Yesenia Torres. 

Following a jury trial in the Superior Court, the defendant was 

found guilty of voluntary manslaughter. The defendant now 

appeals his conviction, maintaining that (1) the trial judge 

erred by determining that Torres's statement, "he stabbed me," 

qualified as a dying declaration; (2) it was improper for the 

Commonwealth to refer to the defendant's testimony as "a 

demented jigsaw puzzle put together with half-truths and out and 

out lies" during closing arguments; and (3) the judge 

erroneously allowed the Commonwealth to introduce inflammatory 

crime scene and autopsy photographs into evidence. We affirm.
2

Background. We recite the facts as the jury could have 

found them, reserving certain details for later discussion. The 

defendant and Torres were married and had three children. In 

2016, Torres learned that the defendant was having an 

extramarital affair with another woman and that he had a child

with her. In April 2018, the other woman again became pregnant 

by the defendant, prompting Torres to end her relationship with 

him. Torres and the defendant agreed that she and their

children would live in their apartment and the defendant would 

give her money each month for rent.

In May 2018, the defendant met Torres at the apartment to 

give her rent money. Shortly after the defendant arrived at the 

apartment, he and Torres engaged in a physical altercation 

involving two knives, and both parties received multiple stab 

wounds. At trial, the prosecution and defense disputed who 

started the altercation. After the struggle ended, the 

defendant made several phone calls. First, he returned a call 

from his upstairs neighbor and stated, "call 911. We are dying 

over here. We got into a fight and stabbed each other." The 

defendant then made two calls to the Lawrence Police Department. 

Recordings of these calls were admitted in evidence and played 

for the jury. In one call, the defendant said, "We almost 

stabbed to death, we are stabbed to death . . . if you don't 

hurry up, we are both going to die"; "come quick we don't have 
3

much time"; and "hurry up, we're going to die . . . my wife and 

me, we're both gonna die . . . we both stabbing each other to 

death." In the other call, the defendant can be heard calling 

Torres's name and yelling, "come now, she's gonna die, please, 

hurry up, please, if you don't hurry up, she's gonna die . . .

we both stabbed each other to death."

When first responders arrived on scene, they found the 

defendant and Torres lying face down on the kitchen floor

together, bleeding. One officer recorded the scene with his 

cell phone and asked Torres what had happened.1 In response,

Torres gestured towards the defendant and said, "he stabbed me." 

Torres died a short while later.

Discussion. 1. Dying declaration. On appeal, the 

defendant challenges the judge's conclusion that Torres's

statement to first responders that "he stabbed me" qualified as 

a dying declaration. Specifically, he asserts that the 

Commonwealth did not present sufficient evidence to prove that 

Torres believed that her death was imminent. We disagree.

"In homicide prosecutions in Massachusetts, a victim's outof-court statement may qualify as a dying declaration if the 

'statement [is] made . . . under the belief of imminent death 

1 The recording inadvertently stopped after twenty-one 

seconds. Torres's response is not recorded on this video, but 

the officer testified about the response at trial.
4

and [the declarant] died shortly after making the statement, 

concerning the cause or circumstances of what the declarant 

believed to be the declarant's own impending death or that of a 

co-victim.'" Commonwealth v. Middlemiss, 465 Mass. 627, 632

(2013), quoting Mass. G. Evid. § 804(b)(2) (2013). Before 

admitting a statement into evidence as a dying declaration, the 

trial judge must first determine by a preponderance of the 

evidence that the victim believed he or she was going to die 

imminently. Commonwealth v. Nesbitt, 452 Mass. 236, 251 n.16 

(2008), quoting Commonwealth v. Key, 381 Mass. 19, 22 (1980). 

This belief "may be inferred from the nature of the victim's 

injury and the victim's conduct," Commonwealth v. Moses, 436 

Mass. 598, 602 (2002), and does not require an explicit 

statement from the victim. Key, supra at 24.

Torres suffered multiple wounds to her face, neck, torso, 

and hands, the most serious of which included a stab wound to 

the side of her torso that was four and one-half centimeters 

long and five centimeters deep, and a "gaping incised wound" to 

her left bicep that measured fifteen centimeters long and three 

centimeters deep. Torres was bleeding so heavily from her 

wounds that one first responder "suspected an arterial bleed." 

There was also ample evidence to support an inference that 

Torres was conscious and near enough to the defendant for her to 

overhear his panicked statements on the phone about her 
5

impending demise, including, "we are stabbed to death," "we are 

both going to die," and "come now, please, she's gonna die." 

When first responders arrived, the two of them were found lying 

directly next to each other with the defendant's phone on the 

floor near their heads, and Torres can be heard moaning on the 

911 recordings.2 It would also be permissible to infer that 

Torres was aware enough to understand the defendant's statements 

because, although she was "semiconscious" when officers arrived, 

she was able to answer the officer's question about what had 

happened. In these circumstances, we see no error in the 

judge's determination that the Commonwealth proved by a 

preponderance of the evidence that Torres believed she was going 

to die.

2. Closing arguments. During closing arguments, the 

prosecutor stated that the defendant's testimony was "a demented 

jigsaw puzzle put together with half truths and out and out 

lies, attempting to match it to physical evidence except when it 

can't." The defendant asserts that this statement was an 

impermissible expression of the prosecutor's own personal belief 

about the defendant's credibility. There was no objection to 

2 The neighbor also testified that while he was talking to 

the defendant over the phone, he heard Torres "moan" and she 

"didn't sound distant." On the recording of the defendant's 911 

call, officers can be heard entering the house; these officers 

testified that the defendant and Torres were lying next to each 

other when they arrived.
6

this statement at trial; we therefore assess whether the 

"argument [was] improper and, if so, whether [it] created a 

substantial risk of a miscarriage of justice [quotation 

omitted]." Commonwealth v. Sanders, 101 Mass. App. Ct. 503, 511 

(2022).

"Prosecutors may 'argue forcefully for the defendant's 

conviction.'" Commonwealth v. Martinez, 476 Mass. 186, 199 

(2017), quoting Commonwealth v. Wilson, 427 Mass. 336, 350 

(1998). "The jury are presumed to understand that a prosecutor

is an advocate, and statements that are '[e]nthusiastic 

rhetoric, strong advocacy, and excusable hyperbole' will not 

require reversal." Martinez, supra, quoting Wilson, supra at 

351. A prosecutor may not, however, "express[] a personal 

belief in the credibility of a witness, or indicate[] that he or 

she has knowledge independent of the evidence before the jury." 

Martinez, supra, quoting Wilson, supra at 352. We view the 

remark "in the context of the entire argument, and in light of 

the judge's instructions to the jury and the evidence at trial." 

Commonwealth v. Kolenovic, 478 Mass. 189, 199 (2017), quoting 

Commonwealth v. Gaynor, 443 Mass. 245, 273 (2005).

The challenged remark introduced the portion of the 

prosecutor's argument in which she contrasted the defendant's 

testimony with the evidence and argued that the jury should not 

believe the defendant. Commonwealth v. Ortega, 441 Mass. 170, 
7

181 (2004). Although the statement limned the border of 

acceptable rhetoric and would better have been left unsaid, we 

conclude that it did not cross the line. See Commonwealth v. 

Yesilciman, 406 Mass. 736, 746 (1990) ("A certain measure of 

jury sophistication in sorting out excessive claims on both 

sides may fairly be assumed" [quotation omitted]); Sanders, 101 

Mass. App. Ct. at 511 (closing referred to defendant as a "liar" 

and characterized defense as "garbage"; in the circumstances, no 

substantial risk of miscarriage of justice). Context assists us 

in this analysis; the judge instructed the jury on three 

separate occasions that closing arguments are not evidence. In 

reviewing this statement, we presume that the jury understood 

and followed these instructions. Commonwealth v. Hernandez, 473 

Mass. 379, 392 (2015). Under this standard, and considering the 

overwhelming evidence against the defendant, we are not 

persuaded that the statement constituted reversible error.3 See 

Commonwealth v. Carter, 475 Mass. 512, 522 (2016) ("Even if 

there had been an appearance of impropriety in the statements, 

the judge carefully and clearly instructed the jury that closing 

3 The fact that the jury returned a verdict for voluntary 

manslaughter, not first degree murder, indicates that the jury 

followed the judge's instructions and questioned the 

Commonwealth's theory of the case. See Commonwealth v. Bois, 

476 Mass. 15, 35-36 (2016) ("it is clear that the jury did not 

blindly accept the prosecutor's arguments, as they rejected the 

Commonwealth's theory that the defendant had committed the 

killing with deliberate premeditation").
8

arguments are not evidence and that they alone were tasked with 

determining credibility").

3. Photographic evidence. Finally, the judge did not 

abuse his discretion in allowing the Commonwealth to introduce

two autopsy photographs and multiple photographs of the crime 

scene into evidence. "Relevant evidence is admissible as long 

as the probative value of the evidence is not substantially 

outweighed by the danger of unfair prejudice." Commonwealth v. 

Wall, 469 Mass. 652, 661 (2014). "Whether evidence is relevant 

in any particular instance, and whether the probative value of 

relevant evidence is outweighed by its prejudicial effect, are 

questions within the sound discretion of the judge." Id.

(quotation omitted). We will not disturb a judge's 

determination that photographs are relevant and admissible 

unless the "defendant is able to bear the heavy burden of 

demonstrating an abuse of that discretion." Commonwealth v. 

Benson, 419 Mass. 114, 118 (1994), quoting Commonwealth v. 

Waters, 399 Mass. 708, 715 (1987).

The judge properly allowed two autopsy photographs of the 

victim's hands into evidence. In weighing the probative value 

of these photographs, the judge noted that

"the significance or potential significance of the 

fingernails [shown in the photographs] is obvious. There 

is a struggle, even by the defendant's version, where they 

were stabbing each other. Therefore, this is an 

altercation, and the damaged fingernails are relevant 
9

potentially to the issues of who is the first aggressor, 

self-defense . . . [and] the amount of force that was 

used."

The judge also concluded, and we agree, that any potential 

prejudice was mitigated by the fact that the autopsy photos were 

not overly graphic; they showed only the victim's hands and not 

the rest of her body. See Commonwealth v. Obershaw, 435 Mass. 

794, 803-804 (2002) (photographs admissible where "[n]one of the 

photographs taken in the autopsy room showed the body in an 

altered state"). We agree with the judge's reasoning and 

conclude that there was no error in admitting the two autopsy 

photographs.4

The judge also did not abuse his discretion by allowing the 

Commonwealth to introduce thirty-two photographs of the bloody 

crime scene into evidence. "That the photographs may be 

gruesome or have an inflammatory effect on the jury does not 

render them inadmissible so long as they possess evidentiary 

value on a material matter." Commonwealth v. Olsen, 452 Mass. 

284, 294 (2008). They did. The crime scene photographs

depicted the location and amount of blood evidence in various 

areas of the apartment, which was relevant to three central 

4 Although the Commonwealth initially represented that it 

would not introduce any autopsy photos into evidence, trials are 

fluid, and it was within the judge's discretion to revisit this 

issue in light of the other trial evidence and the defendant's 

trial strategy. See Commonwealth v. Gonzalez, 22 Mass. App. Ct. 

274, 277 n.5 (1986).
10

issues: (1) malice; (2) extreme atrocity or cruelty; and 

(3) whether the defendant acted in self-defense.5 Moreover, the 

probative value of these photographs was not outweighed by any 

potential prejudice to the defendant. As the trial judge noted, 

the photographs were not unnecessarily repetitive because each 

photograph "depicted different views [of the crime scene]." See 

Commonwealth v. Alleyne, 474 Mass. 771, 780-781 (2016) (no abuse 

of discretion in admitting autopsy photographs where each 

photograph "was probative of a point that the others were not"). 

Any potential prejudice was also mitigated by the judge's 

contemporaneous instruction to the jury that they should not be

swayed by any sympathy that might be evoked by the photographs.6 

5 The number of photographs does not change this analysis.

6 We find no merit in the defendant's contention that the 

photographs prejudiced him because they depicted his own blood, 

as well as Torres's blood, so that the apartment looked "twice 

as bloody." The defendant himself relied on the bloody nature 

of the scene to support his theory of self-defense. He was not 

prejudiced by the fact that his blood was also depicted in the 

photographs.
11

See Commonwealth v. DeSouza, 428 Mass. 667, 670 (1999). There 

was no abuse of discretion.

Judgment affirmed.

By the Court (Green, C.J., 

Desmond & Hershfang, JJ.7),

Clerk

Entered: July 30, 2024.

7 The panelists are listed in order of seniority.