Commonwealth v. Smith, 444 N.E.2d 374 (Mass. 1983). · Go Syfert
Commonwealth v. Smith, 444 N.E.2d 374 (Mass. 1983). Cases Citing This Book View Copy Cite
146 citation events (37 in the last 25 years) across 10 distinct courts.
Strongest positive: Commonwealth v. McLeod (mass, 1985-05-08)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (verbatim quote) Commonwealth v. McLeod
Mass. · 1985 · signal: see · quote attribution · 1 verbatim quote · confidence high
pure speculation . . . contrary to the evidence
examined Cited as authority (verbatim quote) Commonwealth v. Lowe (3×) also: Cited "see", Cited "see, e.g."
Mass. App. Ct. · 1983 · signal: compare · quote attribution · 1 verbatim quote · confidence high
it is hardly fitting for a prosecutor to rely on curative instructions to present his case properly
examined Cited as authority (quoted) State v. Stull (2×)
Or. Ct. App. · 2019 · quote attribution · 2 verbatim quotes · confidence low
the prosecutor was entitled to make a comment on the demeanor of in the courtroom.
discussed Cited as authority (rule) Commonwealth v. Moffat
Mass. · 2020 · signal: cf. · confidence medium
Cf. Commonwealth v. Smith, 387 Mass. 900, 907 (1983) (no error for prosecutor to point out that, as jury observed, defendant, who did not testify, "squirm[ed] and smirk[ed] and laugh[ed]" during trial).
discussed Cited as authority (rule) Commonwealth v. Leary
Mass. App. Ct. · 2017 · confidence medium
The prosecutor "interjected no extraneous material or belief but [merely] expressed [his] view of the strength of the evidence." Commonwealth v. Smith, 387 Mass. 900, 907 (1983). 3 It appears that the prosecutor sought to emphasize evidence of erratic driving, which bears on negligence, but without misleading the jury into believing that the law requires outright erratic driving.
discussed Cited as authority (rule) Commonwealth v. Shelley (2×)
Mass. · 2017 · confidence medium
In reaching a verdict, jurors may not consider the legal consequences of that verdict, including what, if any, punishment a defendant may receive.6 See Commonwealth v. Smith, 387 Mass. 900, 911 (1983), quoting Commonwealth v. Burke, 373 Mass. 569 , 576 n.3 (1977); E.B. without an express exception in the statute or commentary.
discussed Cited as authority (rule) Commonwealth v. Mazariego
Mass. · 2016 · confidence medium
We doubt that the prosecutor’s needless comment had the effect of sweeping the jurors beyond a fair and calm consideration of the evidence, see Commonwealth v. Smith, 387 Mass. 900, 905 (1983), and we continue to credit jurors with that “certain measure of . . . sophistication in sorting out excessive claims,” Commonwealth v. Kozec , 399 Mass, at 517.
discussed Cited as authority (rule) Commonwealth v. Baran
Mass. App. Ct. · 2009 · confidence medium
The cumulative effect of the government’s presentation, see Commonwealth v. Smith, 387 Mass. 900, 911-912 (1983) (cumulative effect of inflammatory and misleading remarks requires reversal), was likely to “sweep jurors beyond a fair and calm consideration of the evidence.” Commonwealth v. Perry, 254 Mass. 520, 531 (1926).
discussed Cited as authority (rule) Commonwealth v. Ramos
Mass. App. Ct. · 2009 · confidence medium
We reiterate the familiar refrain: “Advance preparation would eliminate from our consideration most aspects of closing arguments constantly being urged as improper.” Commonwealth v. Smith, 387 Mass. 900, 903 (1983), quoting from Commonwealth v. Haas, 373 Mass. 545, 557 (1977).
discussed Cited as authority (rule) Smith v. State
Ga. · 2008 · confidence medium
App. 1990); Armstrong v. Arkansas, 233 SW3d 627, 637-639 (Ark. 2006); Massachusetts v. Smith, 444 NE2d 374, 380 (Mass. 1983); North Carolina v. Brown, 358 SE2d 1, 14-16 (N.C. 1987); Ohio v. Hill, 661 NE2d 1068, 1078 (Ohio 1996).
discussed Cited as authority (rule) Commonwealth v. Daley (2×)
Mass. App. Ct. · 2002 · confidence medium
“We have often warned that we will not tolerate prosecutorial misconduct during trial.” Commonwealth v. Smith, 387 Mass. 900, 903 (1983).
discussed Cited as authority (rule) Commonwealth v. Buzzell
Mass. App. Ct. · 2001 · confidence medium
Commonwealth v. Hawley, supra. See Commonwealth v. Smith, 387 Mass. 900, 908-909 (1983) (statement that “the only evidence we have here of what the defendant . . . has said outside of court, not guilty, not guilty and no more” held to be reasonably susceptible of being interpreted as a comment on the defendant’s failure to take the stand and not harmless beyond a reasonable doubt).
discussed Cited as authority (rule) Commonwealth v. Springer
Mass. App. Ct. · 2000 · confidence medium
“We remind prosecutors again that ‘[a]dvance preparation would eliminate from our consideration most aspects of closing arguments constantly being urged as improper.’ ” Commonwealth v. Phoenix, 409 Mass. 408, 428 (1991), quoting from Commonwealth v. Smith, 387 Mass. 900, 903 (1983), quoting from Commonwealth v. Haas, 373 Mass. 545, 557 (1977).
cited Cited as authority (rule) Bryant v. State
Md. Ct. Spec. App. · 1999 · confidence medium
Commonwealth v. Smith, 387 Mass. 900 , 444 N.E.2d 374, 380 (1983).
cited Cited as authority (rule) Commonwealth v. Awad
Mass. App. Ct. · 1999 · confidence medium
Commonwealth v. Smith, 387 Mass. 900, 908-909 (1983).
discussed Cited as authority (rule) Commonwealth v. Pagano
Mass. App. Ct. · 1999 · confidence medium
Later in his closing, the prosecutor committed another lapse by saying, “If I haven’t proven this case beyond a reasonable doubt, then let my vote be the thirteenth for not guilty.” Defense counsel objected and, on appeal, argues that the remark “creates the false issue of the reliability and credibility of counsel,” especially where the prosecutor possesses “the advantage of official backing.” Commonwealth v. Smith, 387 Mass. 900, 906 (1983), quoting from Commonwealth v. DeChristoforo, 360 Mass. 531, 547 (1971) (Tauro, C.J., dissenting).
discussed Cited as authority (rule) Commonwealth v. Rock
Mass. · 1999 · confidence medium
The Commonwealth concedes, and we agree, that this statement may have been “excessive.” Because the defendant objected, we consider whether, “in the context of the entire argument and the case as a whole,” the summation constituted “prejudicial error.” Id. at 500, citing Commonwealth v. Loguidice, 420 Mass. 453, 454 (1995); Commonwealth v. Daggett, 416 Mass. 347 , 352 n.5 (1993); Commonwealth v. Smith, 387 Mass. 900, 912 (1983).
cited Cited as authority (rule) Commonwealth v. Wilson
Mass. · 1998 · confidence medium
See Santiago, supra, citing Commonwealth v. Loguidice, 420 Mass. 453, 454 (1995); Commonwealth v. Smith, 387 Mass. 900, 912 (1983).
discussed Cited as authority (rule) Commonwealth v. DeCicco
unknown court · 1998 · confidence medium
The prosecutor managed to refrain from exploiting the manner of the victim’s death, compare Commonwealth v. Smith, 387 Mass. 900, 909 (1983), and the trial judge instructed the jury that their decision “cannot and must not in any way be influenced by sympathy or by emotion or by prejudice.” See Commonwealth v. Palmariello, 392 Mass. 126, 135 (1984).
discussed Cited as authority (rule) Commonwealth v. Coyne (2×)
Mass. App. Ct. · 1997 · confidence medium
See Commonwealth v. Burke, 373 Mass. 569 , 576 n.3 (1977); Commonwealth v. Smith, 387 Mass. 900, 910-911 (1983).
cited Cited as authority (rule) Commonwealth v. Santiago
Mass. · 1997 · confidence medium
See Commonwealth v. Loguidice, 420 Mass. 453, 454 (1995); Commonwealth v. Smith, 387 Mass. 900, 912 (1983).
discussed Cited as authority (rule) Commonwealth v. Raymond
Mass. · 1997 · confidence medium
Contrast Commonwealth v. Smith, 387 Mass. 900, 910 (1983) (prosecutor suggesting “the victim felt ‘the flame come at him’ ” was improper where the medical examiner concluded the victim was already dead before his body was burned).
cited Cited as authority (rule) Commonwealth v. Curtiss
Mass. · 1997 · confidence medium
This was proper argument.” Commonwealth v. Smith, 387 Mass. 900, 907 (1983), citing Commonwealth v. Daigle, 379 Mass. 541, 550 (1980), and Commonwealth v. Stone, 366 Mass. 506, 516 (1974).
discussed Cited as authority (rule) Mello v. Hingham Mutual Fire Insurance
Mass. · 1995 · confidence medium
L. c. 233, § 20, Third (1994 ed.) (failure of defendant to take the stand “shall not create any presumption against him”); Commonwealth v. Smith, 387 Mass. 900, 908-909 (1982) (impermissible to argue to jury that they should draw adverse inferences from defendant’s invocation of his privilege against self-incrimination).
cited Cited as authority (rule) Commonwealth v. Spence
Mass. App. Ct. · 1995 · signal: cf. · confidence medium
Cf. Commonwealth v. Smith, 387 Mass. 900, 910-911 (1983); Commonwealth v. Ward, 28 Mass. App. Ct. 292, 295 (1990).
discussed Cited as authority (rule) Commonwealth v. Costello (2×)
Mass. App. Ct. · 1994 · confidence medium
Commonwealth v. Smith, 387 Mass. 900, 903 (1983). "[E]xtemporized arguments only serve to increase the burdens on the trial judge and to provide grist for the appellate mill." Commonwealth v. Grammo, 8 Mass. App. Ct. 447, 457 (1979).
discussed Cited as authority (rule) Commonwealth v. Dowdy (2×)
Mass. App. Ct. · 1994 · confidence medium
Nothing seems to get through. [2] Why cannot prosecutors get it right? [3] Why should appellate courts continue to reiterate that familiar refrain: *503 "We remind prosecutors again that `[a]dvance preparation would eliminate from our consideration most aspects of closing arguments constantly being urged as improper.' [ Commonwealth v. Smith, 387 Mass. 900, 903 (1983)], quoting Commonwealth v. Haas, 373 Mass. 545, 557 (1977)." Commonwealth v. Phoenix, 409 Mass. 408, 428 (1991).
discussed Cited as authority (rule) Commonwealth v. Cohen (2×) also: Cited "see"
Mass. · 1992 · signal: cf. · confidence medium
Cf. Comonwealth v. Smith, 387 Mass. 900, 907 (1983) (proper for prosecutor to comment on defendant’s demeanor where such comment did not suggest personal knowledge of the prosecutor).
discussed Cited as authority (rule) Commonwealth v. Viriyahiranpaiboon
Mass. · 1992 · confidence medium
The officer was allowed to testify, however, as to his observations of a person fitting the description of the defendant and his automobile on the evening of the murder. 8 Cf. Commonwealth v. Smith, 387 Mass. 900, 910-911 (1983) (emotional, inflammatory speech that commented on the consequences of the jury’s decision not isolated remarks and with other prosecutorial errors was unacceptable), and Commonwealth v. Belton, 352 Mass. 263, 270 , cert, denied, 389 U.S. 872 (1967) (isolated remark which was emotional appeal to jury, but not objected to, not so prejudicial as to call for a reversal).…
discussed Cited as authority (rule) Commonwealth v. McLeod (2×)
Mass. App. Ct. · 1991 · confidence medium
In these circumstances, particular care was needed to assure that the central issues were tried factually and dispassionately, without inflammatory diversions.” See also Commonwealth v. Smith, 387 Mass. 900, 905 (1983).
discussed Cited as authority (rule) Commonwealth v. Phoenix
Mass. · 1991 · confidence medium
The prosecutor’s remarks were “reasonably susceptible of being interpreted as a comment on [the defendant’s] failure to take the stand.” Commonwealth v. Smith, 387 Mass. 900, 908 (1983), quoting Commonwealth v. Domanski, 332 Mass. 66, 69 (1954).
cited Cited as authority (rule) Commonwealth v. Ward
Mass. App. Ct. · 1990 · confidence medium
Commonwealth v. Smith, 387 Mass. 900, 910-911 (1983).
cited Cited as authority (rule) Commonwealth v. Yesilciman
Mass. · 1990 · confidence medium
Commonwealth v. Andrews, 403 Mass. 441, 457 (1988); Commonwealth v. Smith, 387 Mass. 900, 906-907 (1983);.
cited Cited as authority (rule) Commonwealth v. Gallego
Mass. App. Ct. · 1989 · confidence medium
See Commonwealth v. Burke, 373 Mass. 569, 574-575 (1977); Commonwealth v. Smith, 387 Mass. 900, 905-906 (1983); Commonwealth v. Clary, 388 Mass. 583, 590 (1983).
cited Cited as authority (rule) Commonwealth v. Thomas
Mass. · 1987 · confidence medium
We reiterate that “[ljawyers shall not and must not misstate principles of law nor may their summations infringe or denigrate constitutional rights.” Commonwealth v. Smith, 387 Mass. 900, 903 (1983).
discussed Cited as authority (rule) Commonwealth v. Porter
Mass. App. Ct. · 1987 · confidence medium
Although the prosecutor should have avoided the use of vulgar terms (such as “fuck” and “suck off’) in pinpointing the various times when the victim could see the defendant, see Commonwealth v. Smith, 387 Mass. 900, 904, 905-906 (1983), the terms had been repeatedly used by the victim and were used by the prosecutor to refer to the events as the victim had described them.
discussed Cited as authority (rule) Commonwealth v. Young
Mass. · 1987 · confidence medium
See Commonwealth v. Connor, 392 Mass. 838, 853 (1984) (“The prosecutor’s reference to the defendant as ‘the man that you’ve observed here for seven weeks, writing, writing and writing,’ was a reference to the defendant’s courtroom appearance and was not improper”); Commonwealth v. Smith, 387 Mass. 900, 907 (1983) (no error in a prosecutor’s comment that “you have had an opportunity to look at him during the trial as he squirms and smirks and laughs, or whatever you have seen him do”).
discussed Cited as authority (rule) Commonwealth v. Kozec (2×)
Mass. · 1987 · confidence medium
Verdict set aside. 1 Commonwealth v. Smith, 387 Mass. 900, 908-909 (1983).
cited Cited as authority (rule) Commonwealth v. Sherick
Mass. App. Ct. · 1987 · confidence medium
See Commonwealth v. Domanski, 332 Mass. 66, 69 (1954); Commonwealth v. Smith, 387 Mass. 900, 908-909 (1983).
cited Cited as authority (rule) Commonwealth v. Pullum
Mass. App. Ct. · 1986 · confidence medium
See Commonwealth v. Domanski, 332 Mass. 66, 69 (1954); Commonwealth v. Smith, 387 Mass. 900, 908-909 (1983); Commonwealth v. Young, supra at 453-454.
cited Cited as authority (rule) Commonwealth v. Trigones
Mass. · 1986 · confidence medium
See Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974); Commonwealth v. Smith, 387 Mass. 900, 912 (1983); Commonwealth v. Collins, 386 Mass. 1, 14 (1982).
examined Cited as authority (rule) Commonwealth v. Kozec (4×)
Mass. App. Ct. · 1985 · confidence medium
While a prosecutor has a duty to argue the public's case aggressively, "[i]t is the evidence, not the sympathy, that must be the foundation of the jury's decision." Commonwealth v. Smith, 387 Mass. 900, 909-910 (1983).
discussed Cited as authority (rule) Commonwealth v. Childs
Mass. App. Ct. · 1985 · confidence medium
Contrast Commonwealth v. Smith, 387 Mass. 900, 904-912 (1983) (deliberate and repeated improprieties by experienced prosecutor created significant danger of prejudice).
discussed Cited as authority (rule) Commonwealth v. Dickinson
Mass. · 1985 · signal: cf. · confidence medium
Cf. Commonwealth v. Smith, 387 Mass. 900, 904-907 (1983) (deliberate and repeated improprieties by experienced prosecutor created significant danger of prejudice).
examined Cited as authority (rule) Commonwealth v. Yelle (3×)
Mass. App. Ct. · 1985 · signal: cf. · confidence medium
Cf. Commonwealth v. Smith, 387 Mass. 900, 904-905 (1983); Commonwealth v. Clary, 388 Mass. 583, 592 (1983).
discussed Cited as authority (rule) Commonwealth v. Tuitt (2×)
Mass. · 1985 · signal: cf. · confidence medium
Cf. Commonwealth v. Smith, 387 Mass. 900, 912 (1983) (new trial ordered in light of “cumulative effect of prosecutorial errors during the trial and the closing argument”). 6.
cited Cited as authority (rule) Commonwealth v. Brown
Mass. · 1984 · confidence medium
Contrast Commonwealth v. Smith, 387 Mass. 900, 909-910 (1983).
discussed Cited as authority (rule) Commonwealth v. Palmariello (2×)
Mass. · 1984 · confidence medium
Palmariello next objects to the prosecutor’s comment that “if gullible juries decided these cases without the aid of their good common sense, or went upstairs to their deliberation rooms and conducted a search for doubts as an excuse to acquit a defendant, and the hoodlums in our society may come to believe that murder can be committed without certainty of conviction, human life will become very cheap.” Palmariello argues that by these remarks the prosecutor encouraged the jury “to eschew its responsibility to acquit the defendant if there is any reasonable doubt because of the harm th…
cited Cited as authority (rule) Commonwealth v. Bourgeois
Mass. · 1984 · confidence medium
Commonwealth v. Smith, 387 Mass. 900, 906 (1983).” Commonwealth v. Gagnon, 16 Mass. App. Ct. 110, 114-115 (1983).
discussed Cited as authority (rule) Commonwealth v. Martin
Mass. App. Ct. · 1984 · confidence medium
See Commonwealth v. Burke, 339 Mass. 521, 532-533 (1959); Commonwealth v. Hawley, 380 Mass. 70 , 82-86 *725 (1980); Commonwealth v. Smith, 387 Mass. 900, 908-909 (1983); Commonwealth v. Kendall, 9 Mass. App. Ct. 152, 160-162 (1980). 2.
Commonwealth vs. Stephen E. Smith
Massachusetts Supreme Judicial Court.
Jan 11, 1983.
444 N.E.2d 374
Willie J. Davis for the defendant., Peter W. Agnes, Jr., Assistant District Attorney, for the Commonwealth.
Wilkins, Liacos, Abrams, Nolan, Lynch.
Cited by 110 opinions  |  Published
1 passages pin-cited by 1 case
Pinpoint authority: bottom 64%
Citer courts: Court of Appeals of Oregon (2)

Lead Opinion

Liacos, J.

The defendant was convicted by a jury on February 6, 1980, of murder in the first degree, arson, and armed robbery. He was sentenced to concurrent terms of life imprisonment at the Massachusetts Correctional Institution at Walpole on the murder and armed robbery indictments. A sentence of not more than twenty years nor less than eighteen years at Walpole was imposed on the arson indictment, to be served from and after the life sentences. The defendant filed a notice of appeal. G. L. c. 278, § 33E. He claims that the conduct by the prosecutor during the trial and closing argument was so unfair and prejudicial as to warrant reversal and a new trial. The appeal raises two ad[*901] ditional issues, namely, the correctness of the trial judge’s charge on alibi and of the trial judge’s limitation of cross-examination by the defendant of the Commonwealth’s principal witness.

We conclude that the conduct of the prosecutor was of such an improper and prejudicial nature as to require reversal and a new trial.[1] There is no need to address the remaining issues, which are unlikely to recur at a new trial.

The evidence before the jury was as follows. On November 4, 1978, the defendant was present at a gathering of people at the home of the victim, William E. McArthur, in Waltham. In the defendant’s presence, McArthur was asked by another person to sell some drugs. McArthur declined, explaining that he did not sell drugs to strangers. Subsequently, a woman at the party, Janice Kendall, left for a bar in Forest Hills with five people, including the defendant, in the defendant’s car. She overheard the defendant say, “What’s wrong with him?” “That dirty motherf-----?” “I will get him. His time will come sooner than he thinks. I will blow him away, the little motherf-----.” There was a later comment by the defendant about the “bastard.” Believing the defendant was referring to McArthur, Kendall responded by orally defending McArthur. Shortly thereafter all the occupants of the vehicle went to a bar and eventually home.

The following day, November 5, the defendant met a long-time friend, Frank Rice, at a bar. Telling Rice about the party and the quantity of drugs and money the defendant believed McArthur to have, the defendant indicated to Rice that he was going to rob McArthur. Later in the same evening of November 5, Bruce Gorham, Richard Fallavolli-ta, and the defendant left in one car, and Rhonda Bennett and Steven Gorham followed in another car for the purpose of going to Waltham to rob McArthur of his drugs and money. The defendant had been drinking liquor and smoking “angel dust.” The group stopped at a small grocery store to buy nylon stockings to use as masks.

[*902] The only testimony of what happened when the group arrived at McArthur’s home in Waltham was the testimony of the Commonwealth’s principal witness, Richard Fallavolli-ta, an admitted accomplice. Fallavollitta had agreed to testify in exchange for the promise that the Commonwealth would nol-pros the murder charges and recommend a five to fifteen year suspended prison sentence on charges of armed robbery and arson. Fallavollita testified about the plea bargain given in exchange for his testimony.

According to Fallavollita’s testimony, only Bruce Gorham, the defendant, and Fallavollita went into the house through an unlocked door. Bruce Gorham already had a knife, and the defendant pulled a knife from the wall. Gorham found McArthur sitting in the bedroom. He stabbed McArthur and demanded the drugs and money. When the victim denied having any substantial amount of drugs or money, the defendant and Gorham continued to abuse McArthur physically. Only $30 and three small packets of heroin were found. At one point, the defendant pulled his mask off, saying that McArthur had recognized his assailants, and suggested they kill him. Fallavollita stated that he protested and did not strike the victim.

The victim was stabbed by the defendant and by Gorham thirty-two times, and his house was set on fire. The charred corpse was found in the bedroom. The medical examiner testified that the victim had died of the stab wounds and not because of the fire. After the stabbings, the defendant and Gorham went to an apartment, where they cleaned themselves and divided between them the $30 and the heroin which they had taken. Witnesses testified that later, on two separate occasions, the defendant boasted that he had stabbed McArthur.

Edward White, a defense witness, presented an alibi for the defendant. White testified that on the evening of November 5 he found the defendant inebriated in a bar and took him home to sleep. According to White, the defendant did not leave until some time between midnight and ten o’clock the next morning. Another witness testified that the[*903] defendant was known as a braggart and a heavy user of drugs.

The defendant contends that he was denied due process of law by the trial tactics of the prosecutor that were intended to prejudice and inflame the jury. The defendant also alleges that he was deprived of his constitutional right against self-incrimination by the remarks of the prosecutor in his closing argument that referred to the defendant’s failure to take the stand to testify in his own defense. Finally, the defendant asserts that he was denied a fair and impartial trial because of the prosecutor’s comments during closing argument that injected his personal belief in the defendant’s guilt, that referred to facts not in evidence, that remarked on the consequences of the jury’s decision, and that attempted to inflame and prejudice the jury. We consider these claims in the context of our many decisions dealing with alleged prosecutorial misconduct.

We have often warned that we will not tolerate prosecu-torial misconduct during trial. “ The concern of the court in this regard has been expressed repeatedly.” Commonwealth v. Johnson, 372 Mass. 185, 198 (1977).

We stated clearly our views as to the significance we attach to improper prosecutorial conduct in Commonwealth v. Haas, 373 Mass. 545, 557 (1977): “We recognize that it is essential to our present day adversary system that trials be vigorously prosecuted and vigorously defended. We are aware that trials take place neither in academic halls nor under laboratory conditions and that ‘[g]reat latitude should be permitted to counsel in argument.’ Commonwealth v. Pettie, 363 Mass. 836, 840 (1973). Nevertheless, final arguments cannot be freewheeling, extemporaneous verbal slugfests. Lawyers shall not and must not misstate principles of law nor may their summations infringe or denigrate constitutional rights. Advance preparation would eliminate from our consideration most aspects of closing arguments constantly being urged as improper. We remind counsel that we shall not tolerate misconduct by lawyers during the persuasion phase of a criminal trial” (emphasis added).

[*904] A review of cases decided both before and after the trial of this case should put all on notice that prosecutorial misconduct unnecessarily risks reversal of a conviction that otherwise might have been affirmed — all at great cost to the Commonwealth as well as to the defendants. See Commonwealth v. Hoppin, ante 25, 31-32 (1982); Commonwealth v. Drayton, 386 Mass. 39, 52 (1982); Commonwealth v. Ferreira, 381 Mass. 306, 317 (1980); Commonwealth v. Hawley, 380 Mass. 70, 87-90 (1980); Commonwealth v. Roberts, 378 Mass. 116, 117-118 (1979); Commonwealth v. O’Brien, 377 Mass. 772, 778 (1979); Commonwealth v. Earltop, 372 Mass. 199, 205-207 (1977) (Hennessey, C.J., concurring). “That prosecutors are frequently not familiar with the boundaries of argument, or choose to ignore them” is clear when it appears that the simple precaution of careful advance preparation suggested on several occasions has not been invoked. Commonwealth v. Earltop, supra at 205. See Commonwealth v. Haas, supra. We turn to consider the defendant’s claims of prosecutorial error.

1. Trial tactics. The defendant has three complaints regarding the prosecutor’s trial tactics which he contends exceeded the permissible limits of examination by seeking to prejudice and inflame the jury. First, during the direct and redirect examination of Janice Kendall, and despite the repeated objections of the defendant, the prosecutor asked eleven questions which emphasized vulgar statements the defendant had made only once. Second, the prosecutor, in another question, characterized as “threats” the conversation that Janice Kendall had overheard. However, there was no testimony of “threats,” and the trial judge finally directed the prosecutor to confine himself to language used by the witness. The third and most serious charge raised by the defendant of improper trial tactics involved the cross-examination of a defense witness. The witness, who was not being asked to authenticate the exhibit, was shown a photograph. After some difficulty the witness identified the object in the photograph as a dead body. At this point, the[*905] prosecutor interjected, “Looks like a piece of charred meat, doesn’t it?” [2] The judge denied the defendant’s motion for a mistrial but struck the remark.

The Commonwealth contends that, although the prosecutor’s last remark admittedly went far beyond permissible boundaries, no new trial is warranted because of the overwhelming evidence of the defendant’s guilt. Furthermore, it argues that, although there was an undue emphasis on the expletives, the prosecutor was only trying to elicit a fact already in evidence and that any prejudice was insignificant. These arguments are not wholly persuasive.

The defendant’s personality was not particularly one to create admiration or sympathy for him. Furthermore, the victim had been killed in a gruesome manner. In such circumstances, the prosecutor owed a particular care in discharging his duty to seek justice and not merely a conviction by trying the case factually and dispassionately without inflammatory tactics. See Commonwealth v. Redmond, 370 Mass. 591, 597 (1976). Cf. ABA Standards for Criminal Justice, The Prosecution Function § 3-1.1(c) (2d ed. 1980). The “charred meat” comment was clearly unjustifiable. Cf. Commonwealth v. Fitzgerald, 376 Mass. 402, 413 (1978). Such a characterization “could only have been made for [its] emotional impact. Such elements of irrationality and irrelevance introduced into the trial can only serve to make it less likely that the jury will return a verdict based on fair, calm consideration of the evidence.” Commonwealth v. Shelley, 374 Mass. 466, 470 (1978). Furthermore, the inappropriate tactics of the prosecution did not relate to collateral issues but rather to material facts. Cf. Commonwealth v. Nordstrom, 364 Mass. 310, 316 (1973).

The unnecessary, repeated emphasis on the foul language allegedly used by the defendant, the reference to “threats”[*906] as to which there was no evidence, or the tactic of using a witness to emphasize the gruesome nature of the crime by reference to an exhibit already in evidence, taken alone, might not warrant reversal, but the cumulative impact of such tactics must be considered. The deliberate, repeated, and improper tactics used by this experienced prosecutor created a significant danger of prejudice to the defendant. We need not decide, however, whether the cumulative impact of such tactics is sufficient to require reversal. Instead, we consider the effect of these tactics in conjunction with the impact of the prosecutor’s closing argument.

2. Closing argument. The prosecutor made five comments during his closing argument, each of which the defendant claims is sufficient to violate his due process rights. Some of these alleged errors, taken alone, do not appear to have created reversible error. We consider the claims seriatim.

a. Personal belief of prosecutor. In discussing the theories under which the defendant could be convicted of murder in the first degree, the prosecutor allegedly expressed his personal belief that “[a]ny one of those three [theories] would be enough to convict Stephen Smith of the crime of which he is charged, and I submit to you, the crime that he deserves to be convicted of.” “To permit counsel to express his personal belief in the testimony . . . would afford him a privilege not even accorded to witnesses under oath and subject to cross-examination. Worse, it creates the false issue of the reliability and credibility of counsel. This is peculiarly unfortunate if one of them has the advantage of official backing.” Commonwealth v. DeChristoforo, 360 Mass. 531, 547 (1971) (Tauro, C.J., dissenting), quoting Greenberg v. United States, 280 F.2d 472, 475 (1st Cir. 1960). It has long been held in this Commonwealth that the prosecutor may not prejudice the jury by imposing his personal beliefs. Commonwealth v. Sherman, 294 Mass. 379 (1936). See Commonwealth v. Hoppin, supra at 30.

A prosecutor who argues from the evidence and the inferences fairly drawn therefrom does not violate this prin[*907] ciple, however. This part of the argument in the case before us interjected no extraneous material or belief but expressed the prosecutor’s view of the strength of the evidence. This was proper argument. Commonwealth v. Daigle, 379 Mass. 541, 550 (1980). Commonwealth v. Stone, 366 Mass. 506, 516 (1974).

b. Comment on the defendant’s demeanor. The prosecutor commented on the defendant’s demeanor during the trial by saying, “And you have had an opportunity to look at him during the trial as he squirms and smirks and laughs, or whatever you have seen him do.” The jury were entitled to observe the demeanor of the defendant during the trial. “ [T]he comment by the prosecutor did not suggest that he had knowledge the jury did not share.” Commonwealth v. Valliere, 366 Mass. 479, 494 (1974). See Commonwealth v. Borodine, 371 Mass. 1, 11 (1976), cert. denied, 429 U.S. 1049 (1977). There was no error in this regard.

c. Comments on evidence not admitted. Defense counsel sought to remove the sting of the gruesome photographs of the victim’s body by urging the jury, in his closing argument, not to be “blinded” by them. To counteract this argument, the prosecutor made an ambiguous statement possibly referring to photographs of the body not admitted in evidence.[3] The remark has two possible interpretations. The first is that the prosecutor was referring to his knowledge of evidence not before the jury. Alternatively, he was merely urging the jury to review carefully the actual exhibits.

Counsel for either side is not permitted to refer to evidence not admitted at trial. See Commonwealth v. Hoppin, supra at 30; Commonwealth v. Burke, 373 Mass. 569, 575 (1977). The photographs, however, were not passed among the jurors when they were introduced as exhibits.[*908] In such circumstances the Commonwealth’s explanation for the prosecutor’s remarks is plausible. Although the prosecutor could have chosen his words more carefully, his remarks in this regard, even if error, would not be sufficient to overturn the convictions.

d. Comment on the defendant’s failure to testify. In response to defense counsel’s proper strategy of questioning Fallavollita’s credibility because of his plea bargain with the Commonwealth, the prosecutor said, “I submit to you the only evidence we have here of what the defendant Smith has said outside of court, not guilty, not guilty and no more.”[4] The defendant argues that his Fifth Amendment right against self-incrimination, exercised by not taking the witness stand, was violated by the prosecutor’s reference to the defendant’s silence. See Griffin v. California, 380 U.S. 609 (1965). Claiming that there was another connotation to the prosecutor’s reference to the defendant’s silence, the Commonwealth contends that the prosecutor was simply offering the jury an explanation for the plea bargain with Fallavollita. While this court has recognized the “fight fire with fire” concept (Commonwealth v. Burnett, 371 Mass. 13, 19 [1976]), it is limited to correcting errors for which the defense counsel is responsible. Commonwealth v. Haas, 373 Mass. 545, 561 (1977). There was no such error by the defense. Indeed, in oral argument before us, the Commonwealth admitted the closing argument of the defense counsel to be proper. Thus, the “fight fire with fire” concept is inapplicable.

Whatever the prosecutor’s intent, his remarks were “reasonably susceptible of being interpreted as a comment on [the defendant’s] failure to take the stand.” Commonwealth v. Domanski, 332 Mass. 66, 69 (1954). Such conduct is, of[*909] course, improper. Commonwealth v. Gouveia, 371 Mass. 566, 571 (1976). Cf. Commonwealth v. Smallwood, 379 Mass. 878, 891 (1980). Counsel may attempt to assist the jury in analyzing evidence by presenting a comprehensive picture but may not draw any inference from the exercise of a constitutional right. Commonwealth v. Ferreira, 381 Mass. 306, 316 (1980). No curative instruction was given, despite the fact that the defendant raised this and the other alleged improprieties at the close of the prosecutor’s argument. A conviction must be set aside for such an impropriety unless harmless beyond a reasonable doubt. Commonwealth v. Hawley, 380 Mass. 70, 89 (1980). The prosecutor’s stress on the defendant’s failure to testify can hardly be said to be “harmless” beyond a reasonable doubt. Id. at 87, 90.

e. Inflammatory appeals. The defendant claims that the prosecutor also appealed to the passions of the jury by speculating whether a stab wound to the heart would hurt and whether the victim had felt the flames of the fire.[5] The defendant maintains that the prosecutor’s speculative argument as to extreme atrocity and cruelty was improper because such speculation appealed to the jury to convict the defendant out of sympathy for the victim.

A verdict must be based only on facts established by evidence beyond a reasonable doubt. It is the evidence, not[*910] the sympathy, that must be the foundation of the jury’s decision. See Commonwealth v. Fitzgerald, 376 Mass. 402, 424 (1978).

There was no evidence that the victim was alive at the time of the fire. Indeed, the medical evidence presented by the prosecutor’s witness was that the victim’s death was caused by the stab wounds and that the victim had died before his body was burned. The prosecutor’s argument about whether the victim felt “the flame come at him” was not only pure speculation but also was contrary to the evidence. Thus, the prosecutor’s closing argument in this regard was improper.

The Commonwealth attempts to defend the prosecutor’s remarks by arguing that he “struck a hard but fair blow.” This characterization of this aspect of the closing argument is not supported by the record.

f. Remarks on the consequences of the jury’s decision. Finally, the prosecutor ended his closing argument with an emotional, inflammatory speech that commented on the consequences of the jury’s decision.[6] The prosecutor stated,[*911] in effect, that a person like the defendant should not be let loose on society. It was highly improper for the prosecutor to imply that the defendant should not be allowed to “walk the streets.” “Neither the judge nor counsel may inform the jury of the consequences of their verdict.” Commonwealth v. Burke, 373 Mass. 569, 576 n.3 (1977). (“You have ... to decide whether or not someone like Mr. Burke is going to go out in the streets again.” Id. at 574.) See Commonwealth v. Killelea, 370 Mass. 638, 645, 646-647 (1976). The impropriety by the prosecutor was not an isolated remark. Cf. Commonwealth v. Belton, 352 Mass. 263, 270 (1967). Taken together with the other prosecutorial errors, this remark was certainly outside the acceptable perimeter of closing argument.

3. Conclusion. Although counsel for the defendant objected to all these remarks at the end of the prosecutor’s argument, he failed to request curative instructions, nor did he request additional instructions after the charge by the judge. Nevertheless, we believe that he adequately preserved his appellate rights. Although the trial judge should be provided with a fair opportunity to correct “ambiguous or misrepresentative statements at a time when such a correction could be achieved easily and without prejudice to either side,” Commonwealth v. Hooks, 375 Mass. 284, 296 (1978),[7] “we have not made a fetish of the form or persistence of the objections.” Commonwealth v. Hawley, supra at 86. See Commonwealth v. Hoppin, supra at 29 n.4. It is hardly fitting for a prosecutor to rely on curative instructions to present his case properly. See Commonwealth v. Borodine, 371 Mass. 1, 12 (1976), cert. denied, 429 U.S. 1049 (1977). In addition, in light of the broad review power granted to this court in capital cases under[*912] G. L. c. 278, § 33E, it is proper for us to review errors to determine if there is a substantial risk of a miscarriage of justice. See Commonwealth v. Ferreira, 381 Mass. 306, 316-317 (1980); Commonwealth v. Fitzgerald, supra at 416; Commonwealth v. Shelley, supra at 469.

We recognize that there was much evidence of the defendant’s guilt. The Commonwealth urges us to follow Commonwealth v. DeChristoforo, 360 Mass. 531, 539 (1971), and hold that the remarks of the prosecutor were insignificant as viewed in the context of the weight of evidence of guilt. However, not only were some of the comments by the prosecutor independently harmful, but “the prejudicial impact of the prosecutor’s charge should be assessed by looking at the combined effect of all his errors.” Commonwealth v. Borodine, supra at 11. Looking at the cumulative effect of the prosecutorial errors during the trial and the closing argument, reversal is required. See Commonwealth v. Burke, supra at 577.

Accordingly, the judgments of conviction are reversed, the verdicts set aside, and the case is remanded for a new trial.

So ordered.

1

The assistant district attorney who argued the appeal before this court was not trial counsel.

2

There was no demonstrated evidentiary need with this witness to refer to the photograph of the corpse. The question, “Looks like a piece of charred meat, doesn’t it?”, can be viewed only as a deliberate attempt to inflame the jury.

3

The statement was: “You haven’t seen close up, I submit to you, all the pictures in this case. Mr. Davis said they are gruesome, they are gory. But look at them, because you are going to have to make a determination

4

The prosecutor’s other remarks on Fallavollita’s plea bargain were: “Why Fallavollita? Why did Fallavollita get the deal? I submit to you, did Fallavollita come in and say, ‘Hey, I want to plead guilty. I am guilty, so I want to plead guilty’? Is he along the road to rehabilitation? Is part of being rehabilitated saying, T did something wrong and I should be punished’?”

5

The full text of the prosecutor’s rhetorical question is:

“What is extreme atrocity and cruelty? Is one stab wound, when a knife blade punctures into your heart, when a knife blade goes into your heart, a knife blade similar to this, perhaps [pointing], goes into your heart? Is that extreme atrocity and cruelty? There is a stab wound to the heart. What does it feel like? Does it hurt? Has anyone ever suffered that here?

“How about a stab wound to the lung, to the right lung; how about a stab wound to the left lung, the stab to the bladder, the stab through the stomach? What was it, 31, 36 stab wounds, to the heart, to the bladder, to the stomach, to the kidneys, slicing and slicing and slicing McArthur until he was cut to what? To what the pictures show you. Is that extreme atrocity and cruelty? Was he alive? Was he alive when they li. the fire to destroy fingerprints, to destroy whatever evidence there was? Did he feel the flame come at him? You can decide that. You can decide it.”

6

Referring to the consequences of the jury’s decision, the district attorney said:

“If you want to believe it, you go out to that jury room and you sit there and you decide and you say, ‘Hey, William McArthur is really alive in Brazil, but he is just not here.’ I submit you can do that, because that’s within your province. You can say this never happened. It’s ugly, it’s bad, I don’t like it, it never happened. You can say that Richard Fallavollita who pleaded guilty to these crimes was never there, that he is having — it is a figment of his imagination. You can say that Bruce Gorham and Stephen Smith were never part of it. You can say that there wasn’t 31 stab wounds, or 36 stab wounds. You can say that the throat wasn’t slit. You can say all those things. You can say that the clothes weren’t burned. You can say that Smith didn’t say all these things to every witness who came in, because that is your province. And if you do, if that is your decision, you come back and you tell your foreman to stand up and say Stephen Smith is not guilty, because that will be your decision, and that’s your right and privilege. And if you believe that, that’s what you ought to do.

“And if you believe that, you take Stephen Smith out the door with you and turn him loose again on society, because that is what you are saying should happen.

“And to say less is for all of us, for you as jurors, for me as a prosecutor, for Mr. Davis, to laugh at the system that we have before us.”

7

We have said that, as to clear prejudicial excesses by the prosecutor, the preferable practice is for the judge to intervene then and there on his own motion. See Commonwealth v. Hawley, supra at 85; Commonwealth v. Shelley, 374 Mass. 466, 473 (1978); Commonwealth v. Gouveia, 371 Mass. 566, 571 (1976); Commonwealth v. DeChristoforo, 360 Mass. 531, 549 (1971).

Concurrence

Abrams, J.

(concurring). While I can concur in the result reached by the court, I think it necessary to add the following remarks. Every experienced prosecutor- knows that “a bad argument can lose a good case.”[1] Codinha, Trial Tac[*913] tics for Prosecutors: Closing Argument, MCLE-NELI 171 (1979). That is exactly what happened here. Due to the misconduct of an experienced prosecutor, we are forced to reverse a strong Commonwealth case.

The prosecutor’s misconduct in this case penalizes taxpayers by requiring the expenditure of thousands of dollars for a new trial. The prosecutor’s misconduct requires reallocation of scarce police, prosecutorial, and judicial resources from new prosecutions to this retrial. The prosecutor’s misconduct forces the friends and family of the victim to relive the trauma of the crime and again suffer the ordeal of a trial. The prosecutor’s misconduct penalizes the defendant, who again must undergo the fear and anxiety associated with a criminal trial. Why, then, is the prosecutor, whose conduct results in such consequences, not named in our opinion?[2]

Experienced prosecutors, including this prosecutor, know that “juries for the most part do their duty, and find in accordance with the facts,” and that prosecutors should only “[djiscuss the issues, the evidence and the credibility of the witnesses [and that they should] not misstate the evidence in closing argument.” Codinha, supra at 171, 176. Well knowing these principles, this prosecutor appealed to the passions of the jury, went outside the scope of the evidence, and commented on the defendant’s silence. He knew that such tactics went beyond “the bounds of decency and fairness and [were] calculated to ‘sweep [the jury from a calm and fair] assessment of the evidence.’” Codinha, supra at 173, quoting Commonwealth v. Graziano, 368 Mass. 325, 332 (1975).

[*914] We fail in our duty to the public and the Bar when we do not penalize publicly those prosecutors who engage in egregious conduct. I, therefore, respectfully dissent from the decision of the majority not to name the prosecutor in our opinion.[3]

1

We have said that “we shall not tolerate misconduct by lawyers during the persuasion phase of a criminal trial.” Commonwealth v. Haas, 373 Mass. 545, 557 (1977). However, experienced prosecutors know that we do not name the erring prosecutor in our opinions; we simply indicate, if such is the case, that appellate counsel is not the person responsible for the misconduct at trial. See, e.g., the majority opinion, supra at 901 n.l; Commonwealth v. Hoppin, supra at 26 n.2; Commonwealth v. Ferreira, 381 Mass. 306, 315 n.12 (1980); Commonwealth v. Roberts, 378 Mass. 116, 119 n.3 (1979); Commonwealth v. Shelley, 374 Mass. 466, 473 n.3 (1978).

2

There is no question that we have given ample warning to prosecutors that we are concerned with excesses in prosecutorial summation. See, e.g., Commonwealth v. Roberts, supra at 117-118; Commonwealth v. O’Brien, 377 Mass. 772, 778 (1979); Commonwealth v. Haas, supra; Commonwealth v. Earltop, 372 Mass. 199, 204-207 (1977) (Hennessey, C.J., concurring); Commonwealth v. Johnson, 372 Mass. 185, 196-198 (1977). Prosecutors well know that a prosecutor’s closing argument is a “vulnerable area in which ... an otherwise well-tried Commonwealth case” can be reversed. Codinha, supra.

3

Whether we identify the prosecutor or not in our opinions, the Board of Bar Overseers may seek its own sanctions. (At present the Board issues private reprimands.)