NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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
12‑P‑687 Appeals Court
RUSSELL DOW vs. GREGORY CASALE.
Suffolk. November 8, 2012. ‑ June 19, 2013.
Present: Cohen, Katzmann, & Wolohojian, JJ.
Massachusetts Wage Act. Labor, Wages.
Civil action commenced in the Superior Court Department on April 1, 2010.
The case was heard by Peter M. Lauriat, J., on motions for summary judgment.
W. Paul Needham (Mark A. Johnson with him) for the defendant.
Elise Busny (Margaret M. Pinkham with her) for the plaintiff.
COHEN, J. In this action pursuant to the Massachusetts Wage Act, G. L. c. 149, §§ 148, 150 (Wage Act), Florida resident Russell Dow, an employee of Starbak, Inc., a corporation organized under the laws of Delaware, with a sole place of business in Massachusetts, brought suit against Starbak’s chief executive officer, Gregory Casale, a Massachusetts resident, seeking unpaid sales commissions of more than $ 100,000, certain unreimbursed expenses, wages in lieu of accrued vacation time, treble damages, and attorney’s fees. In defending Dow’s claim, Casale contended that it would be an impermissible “extraterritorial” application of the statute to permit Dow to avail himself of the private right of action provided in § 150, because Dow did not reside in Massachusetts and did not perform his work “primarily” in Massachusetts.
On stipulated facts, a judge of the Superior Court concluded that Dow had more than sufficient “contacts” with Massachusetts to afford him the protection of the Wage Act. Accordingly, he ruled in favor of Dow on the parties’ cross motions for summary judgment, and entered separate and final judgment for Dow. See Mass. R. Civ. P. 54(b), 365 Mass. 820 (1974). Casale appeals, again arguing that, as matter of law, the remedy provided by § 150 does not extend to Dow. After de novo review, see Crocker v. Townsend Oil Co., 464 Mass. 1, 5 (2012), we affirm.
Facts. We summarize the stipulated facts that bear on the issue presented. At all relevant times, Starbak was a Massachusetts-based developer and manufacturer of video conferencing software and hardware. Dow began working for Starbak on January 3, 2006, and, throughout his tenure with the company, was its only salesperson. From March 15, 2007, until February 5, 2010, Dow held the title “director of sales.” His written employment agreement with Starbak provided that it “shall be governed by and interpreted under the laws of the Commonwealth of Massachusetts.”
While working for Starbak, Dow resided in Florida; however, he served Starbak customers in at least thirty States. His job caused him to travel to at least nineteen of those States, including Massachusetts, where he served between eleven and nineteen customers. Dow traveled to Massachusetts about twelve times in 2008, and eight or ten times in 2009. Unless he was required to visit a customer site, Dow could and did work from home in Florida, contacting the customers by either telephone or electronic mail (e-mail). Starbak paid for Internet service at Dow’s home and expressly approved his telecommuting status.
At all relevant times, Starbak had a single office — initially located in Newton, and later located in Burlington. Dow did not have dedicated office space at either location, but he used the same cubicle each time he was present. The business cards issued to Dow by Starbak showed his contact information as Starbak’s Massachusetts address, telephone number, and facsimile transmission number. All paperwork related to Dow’s sales was generated in Massachusetts; all purchase orders from his customers were sent to Massachusetts; all invoices were sent from Massachusetts; and all payments were sent to Starbak in Massachusetts.
Dow reported to Starbak by contacting Casale in Massachusetts. The two spoke several times per week and communicated by e-mail almost daily with regard to new products, product changes, sales promotions and trade shows, customer sales forecasts and complaints, and other subjects related to the sale of Starbak’s products.
Dow’s paychecks were issued by Starbak in Massachusetts. His compensation consisted of an annual base salary plus commissions on sales, pursuant to a written commission plan. Commissions were calculated quarterly, and the amount due was payable on the second pay period following the end of each quarter. From October 31, 2008, onward, Starbak routinely failed to pay Dow commissions that were due and payable to him.
On January 29, 2010, an involuntary bankruptcy petition was filed against Starbak. Less than one month later, Starbak ceased business operations and terminated all employees, including Dow. Dow received his final base pay through February 5, 2010, but did not receive reimbursement of certain expenses, compensation for fifteen days of accrued but unused vacation time, and upwards of $ 100,000 in unpaid commissions.
Discussion. “The purpose of the Wage Act is ‘to prevent the unreasonable detention of wages.’” Melia v. Zenhire, Inc., 462 Mass. 164, 170 (2012), quoting from Boston Police Patrolmen’s Assn. v. Boston, 435 Mass. 718, 720 (2002). Section 148 of the Wage Act provides, in pertinent part: “Every person having employees in his service shall pay weekly or bi-weekly each such employee the wages earned by him . . . and any employee discharged from such employment shall be paid in full on the day of his discharge . . . .” Such “wages” include, among other things, holiday or vacation pay due under an oral or written agreement, and commissions that are “definitely determined” and “due and payable” to the employee. G. L. c. 149, § 148.
Section 150 of the Wage Act establishes both public and private mechanisms for enforcement. “The [A]ttorney [G]eneral may make complaint or seek indictment against any person for a violation of § 148.” In addition, “[a]n employee claiming to be aggrieved by a violation of . . . § 148 . . . may, 90 days after the filing of a complaint with the [A]ttorney [G]eneral, or sooner if the [A]ttorney [G]eneral assents in writing, and within 3 years after the violation, institute and prosecute . . . a civil action for injunctive relief, for any damages incurred, and for any lost wages and other benefits.” If the employee is successful, the employee is entitled to a mandatory award of treble damages, as well as attorney’s fees and costs. G. L. c. 149, § 150.
Although Casale acknowledges in his brief that the Attorney General “presumably” would have the power to enforce the Wage Act directly against a noncompliant Massachusetts employer, he argues that the private right of action under § 150 should not be extended to a nonresident employee who did not “primarily” perform the duties of his employment within the borders of the Commonwealth. According to Casale, Dow’s limited physical presence in Massachusetts (twelve visits in 2008, and eight or ten visits in 2009) falls short of what is necessary to afford him private relief under the Wage Act.
In support of his position, Casale points to a Superior Court decision, Hadfield vs. A.W. Chesterton Co., Middlesex Superior Court No. 20084382 (Sept. 15, 2009), which concerned the applicability of the Wage Act to a citizen of Australia who was employed by a Massachusetts-based employer to work as a sales manager in sub-Saharan Africa. During twelve years in this position, the employee was required to travel to the employer’s Massachusetts office on numerous occasions and, towards the end of his tenure, was in frequent communication with the company’s director of human resources, who was based in Massachusetts. When, after the employee’s resignation, the employer refused to pay him for unused vacation time, the employee brought suit in Massachusetts for violation of the Wage Act. The judge — after noting a lack of Massachusetts precedent on the issue — dismissed the claim, reasoning that the determinative factor for application of the Wage Act was where the employee worked, and, because the plaintiff’s work predominantly took place not only outside Massachusetts, but also outside the United States, the protections of the Wage Act did not extend to him.
Hadfield is readily distinguishable because of its international context. See Taylor v. Eastern Connection Operating, Inc., 465 Mass. 191, 198 n.9 (2013). Regardless, insofar as the Hadfield case suggests that the physical place where work is performed trumps all other considerations, we disagree with its analysis. Nor do we accept the plaintiff’s equally absolute position that an employer’s presence in Massachusetts is all that is necessary for an employee — wherever situated and whatever the circumstances of employment — to bring a private action against the employer under the Wage Act. To be sure, the language of the statute is directed at the regulation of employers and does not, in terms, restrict its remedies to employees who live or work in Massachusetts. See O’Connell v. Chasdi, 400 Mass. 686, 689 n.3 (1987) (noting that the Massachusetts Civil Rights Act does not contain a provision limiting its reach to objectionable behavior within the Commonwealth). However, we think a more refined analysis is necessary.
The trial court judge, analogizing to the law of personal jurisdiction, concluded that Dow’s contacts with Massachusetts were sufficient to afford him a remedy under § 150. We agree with the judge’s assessment, although the analysis is better framed in terms of choice-of-law doctrine. See Taylor v. Eastern Connection Operating, Inc., supra at 198, citing Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N.Y.U. L. Rev. 267, 306 (1966). See also O’Connell v. Chasdi, 400 Mass. at 689 n.3 (citing choice-of-law precedent, Saharceski v. Marcure, 373 Mass. 304, 310-312 , in support of the observation that the Massachusetts Civil Rights Act may provide the plaintiff with a remedy for the defendant’s out-of-State conduct).
In accordance with choice-of-law doctrine, so long as the requisite criteria are met, the application by a State of its local law is not an impermissible “extraterritorial” assertion of its authority. The overarching limiting principle, as set forth in the Restatement (Second) Conflict of Laws § 9 (1971), is that “[a] court may not apply the local law of its own [S]tate to determine a particular issue unless such application of this law would be reasonable in the light of the relationship of the [S]tate and of other [S]tates to the person, thing or occurrence involved.”
Here, as compared to any other State, Massachusetts has by far the most significant relationship not only to Starbak and Casale as citizens of the Commonwealth, but also to Dow’s employment relationship with them. See Cormier v. Pezrow New England, Inc., 437 Mass. 302, 307 (2002) (for venue purposes, under G. L. c. 151B, “an unlawful employment practice may occur where ‘the core of the employment relationship’ lies”). Throughout Dow’s employment, Starbak was headquartered in Massachusetts, and all of its physical facilities were located in the Commonwealth. See Taylor v. Eastern Connection Operating, Inc., 465 Mass. at 197. The customers Dow acquired entered into business with Starbak in Massachusetts; Dow’s business cards identified Starbak’s Massachusetts contact information as his own; Dow’s paychecks were issued from Massachusetts; Dow came to Massachusetts on business multiple times each year, often working from Starbak’s office, using the same cubicle each time he was there; Dow communicated with Casale in Massachusetts via e-mail almost daily and spoke with him numerous times each week by telephone; Dow’s paychecks were issued from Massachusetts; and Dow’s employment agreement provided that it “shall be governed by and interpreted under the law of the Commonwealth of Massachusetts.”
Indeed, given the particular nature of Dow’s work, his employment with Starbak had no substantial relationship to any place but Massachusetts. Dow essentially was a mobile employee, untethered to any particular workplace. His duties as a salesman required him to travel throughout the United States on Starbak’s behalf irrespective of where he lived; and he was allowed and expected to perform his duties whether he was in residence at Starbak’s office, traveling on business, or working from home. In that sense, his work sensibly may be viewed as having “occurred” in Massachusetts where it benefited Starbak, no matter where he physically was located from day to day.
In short, in the circumstances presented, where the Commonwealth has such a close connection to the parties and their employment relationship, it is entirely reasonable to apply local law to Dow’s claim and to afford him the remedy provided by § 150. The judgment for Dow is therefore affirmed.
 As amended through St. 1998, c. 236, § 10.
 As appearing in St. 2008, c. 80, § 5.
 During the course of Dow’s employment, the company went through three organizational iterations. It began as Starbak
Communications, Inc.; later became Gulfstream Media Corporation doing business as Starbak; and finally became Starbak, Inc. We refer to all of these entities as “Starbak” unless otherwise noted.
 Dow also sued two other company executives, who are not parties to this appeal.
 Pursuant to § 150, Dow first filed a complaint with the Attorney General, and received authorization to prosecute his claim.
 Cross claims and third-party claims remain to be decided.
 Casale does not dispute that he is an “employer” for purposes of the Wage Act. See G. L. c. 149, § 148 (“The president and treasurer of a corporation and any officers or agents having the management of such corporation shall be deemed to be the employers of the employees of the corporation within the meaning of this section”). Nor does he contest the amounts awarded to Dow in the separate and final judgment. As required by § 150, the judge trebled the amount owed to Dow. The resulting judgment was in the amount of $ 337,168.23, with interest as allowed by law, and $ 25,000 in attorney’s fees and costs.
 Although the Hadfield case lacks precedential authority, in the absence of appellate cases on the subject, it has been cited in Federal District Court cases involving claims under Massachusetts wage laws. See, e.g., Telford v. Iron World Mfg.,
LLC, 680 F. Supp. 2d 337, 342 (D. Mass. 2010); Gonyou v. Tri-Wire Engr. Solutions, Inc., 717 F. Supp. 2d 152, 155 (D. Mass. 2010).
 Without reference to any Massachusetts cases, the judge in Hadfield relied upon a “presumption” against the extraterritorial application of statutes, which derives from Federal concern about conflicts between our laws and those of other nations; however, no such concern arises in the interstate context. Taylor v. Eastern Connection Operating, Inc., 465 Mass. 191, 198 & n.9 (2013).
 In this respect, the Wage Act differs, for example, from the North Carolina Wage and Hour Act, which states that it is intended to “promote the general welfare of the people of the State.” N.C. Gen. Stat. § 95-25.1(b) (2012). Based upon this language, the North Carolina statute has been construed to apply only for the benefit of North Carolina residents and those nonresidents whose primary workplace is in North Carolina. Sawyer v. Market America, Inc., 190 N.C. App. 791, 795 (2008); Panos v. Timco Engine Center, Inc., 197 N.C. App. 510, 512, 516-517 (2009).
 The only other potentially interested jurisdiction is Florida, where, as Dow’s place of residence, the effects of his failure to receive wages likely would be felt. However, it is not contended by either party that, as an alternative to the Wage Act, Florida law could be applied to this case. Florida law does not grant substantive rights like those guaranteed by the Wage Act, and Dow’s only claim is one specifically asserted under the Wage Act. It is Casale’s position that, if the Wage Act does not apply, Dow’s action must be dismissed.
 At a minimum, the choice-of-law provision in Dow’s employment agreement is some additional indication that Massachusetts is at the “core of the employment relationship.” Cormier v. Pezrow New England, Inc., supra. Although Dow would have us go farther and conclude that the contractual choice-of-law clause in his employment agreement mandates that § 150 of the Wage Act applies to him, we question whether the clause, as phrased, extends to an extracontractual claim under the Wage Act. Cf. Melia v. Zenhire, Inc., 462 Mass. at 169 (discussing New York law on the construction of choice-of-law clauses). Compare Taylor v. Eastern Connection Operating, Inc., supra at 195 n.7 (plaintiffs’ misclassification claim, under G. L. c. 149, § 148B [a], was within the scope of a choice-of-law clause providing that “‘[t]his Contract and all rights and obligations of the parties’ be construed in accordance with Massachusetts law . . . as the question of classification [bore] directly on the proper construction of the contract — i.e. whether it constitute[d] an employment or an independent contractor agreement”).
 Section 150 entitles a prevailing employee to an award of reasonable attorney’s fees and costs. Dow shall have fourteen days from the date of the rescript to submit to this court an application for appellate attorney’s fees and costs, together with supporting documentation. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004). Casale shall have fourteen days thereafter to respond.
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
COMMONWEALTH vs. JOHN J. TASSINARI.
Plymouth. May 10, 2013. ‑ September 9, 2013.
Present: Ireland, C.J., Spina, Cordy, Botsford, & Duffly, JJ.
Homicide. Evidence, Hearsay, State of mind, Motive, Prior misconduct, Spontaneous utterance, Relevancy and materiality, Photograph, Firearm. Firearms. Jury and Jurors. Practice, Criminal, Capital case, Jury and jurors, Argument by prosecutor, Instructions to jury.
Indictment found and returned in the Superior Court Department on June 20, 2008.
The case was tried before Jeffrey A. Locke, J.
Robert F. Shaw, Jr., for the defendant.
Mary E. Lee, Assistant District Attorney, for the Commonwealth.
IRELAND, C.J. On November 1, 2010, a jury found the defendant guilty of murder in the first degree of his wife on the theories of deliberate premeditation and extreme atrocity or cruelty. The defendant argues error in the admission of evidence; the judge’s failure to exclude a juror based on the juror’s dual citizenship; portions of the prosecutor’s argument; and jury instructions. He also seeks relief pursuant to G. L. c. 278, § 33E. Because we discern no error, and see no reason to exercise our power under G. L. c. 278, § 33E, we affirm.
1. Background. The defendant admitted to shooting and killing his wife, the victim, in the driveway of their home on April 22, 2008. The main issue at trial was whether the shooting was a result of the defendant’s sudden “heat of passion.”
a. The Commonwealth’s case. We present the essential facts the jury could have found, reserving certain details for our discussion of the issues.
The defendant and the victim were married in November, 2004, after a relationship of approximately two years. At the time of the murder, the couple lived next door to the victim’s brother and his wife, with whom they regularly socialized. The defendant was a licensed firearms instructor who owned six handguns and one target rifle, all of which were licensed. He stored the guns and various types of ammunition in a gun safe in the closet in his bedroom. Some of the guns in the safe were kept loaded. He also carried a gun during the day, taking it off only to shower and go to sleep at night.
In the months prior to the murder, the defendant and the victim were experiencing tension in their marriage and discussed divorce on more than one occasion. The defendant and victim discussed these difficulties in electronic communications with each other. According to the victim’s sister-in-law, in whom the victim confided, the victim had asked the defendant for an “open marriage” because she hoped the defendant would find someone else and “would go off with that person and leave her alone.” The victim also told her sister-in-law that she had asked for a divorce about three months before her death, and that the defendant wanted to stay in the house until the divorce became final.
The defendant told the victim he “couldn’t bear the thought of . . . going outside the marriage.” He communicated to his coworker and parents that he and the victim had discussed having an open marriage and told his parents that he had some “pretty serious marital problems” and had researched divorce on the Internet. In an electronic communication to the victim on April 11, 2008, the defendant stated that he would “be gone in 18 months” because he believed, based on his research, that a divorce would be finalized in that period of time.
In other electronic exchanges that month, the defendant told the victim he was concerned about her upcoming plans to go on vacation to a dog show with her best friend because he was worried about other men being there. In these communications and in his testimony at trial, the defendant also expressed his resentment concerning the time the victim spent on her computer and stated that he felt she was choosing the computer over him. The defendant conveyed his disappointment that he and the victim did not have sexual relations as often as they had in the past and accused the victim more than once of having an affair. Approximately two weeks before the shooting, the defendant acknowledged to the victim that he was “controlling, and “need[ed] to work on trusting [her] more.” The victim repeatedly denied that she was having an affair. She told the defendant that, when she spent time on the computer with other people, “[she] was just looking for a small bit of [her] own time,” and accused the defendant of being upset when she did not acquiesce to his requests. The victim believed the defendant to be “insecure,” “obsessive,” and “controlling.”
At trial, the Commonwealth highlighted two events leading up to the murder. On April 10, the defendant had anticipated spending the evening with the victim, but the defendant became angry and left the house. The victim called her best friend on the telephone and told her that this was the first time she thought the defendant would hit her. The second event occurred on April 20, 2008, when the victim went out with a group of girl friends, which was unusual for her. The defendant telephoned or sent text messages to the victim twelve times between 8:25 P.M. and 1:48 A.M. In the electronic communications between the defendant and the victim the next day, the defendant expressed his concern that the victim “[could not] handle herself” and that other men would take advantage of her while she was on vacation.
One day later, the day of the shooting, the defendant believed the couple would spend the evening together. The victim was typing on her computer while the couple was watching television. When the defendant asked her who she was communicating with, the victim told the defendant that she was talking to some friends and that she could “talk to whoever [she] want[ed] and do whatever [she] want[ed].” The defendant left the room “to see how long it would take for her to notice that [he] had gone upstairs.” When the victim asked him whether he would be returning to watch television, he told her that it was “rude” that she “disappeared into cyberspace” when they were supposed to be spending time together. At 9:17 P.M., the victim telephoned her sister-in-law and went next door to talk with her in order to defuse the situation.
After the victim left the house, the defendant contacted her and asked whether she had worn a sweatshirt to cover the tight-fitting shirt she was wearing and when she would return home. The victim responded that she would be home after she finished her tea. At 9:50 P.M., the defendant viewed three images on his computer: one of himself with a dog baring its teeth, one of a gun, and one pornographic image. The defendant also called his mother, with whom he spoke from 9:50 until 10:02 P.M., and told her that the victim was talking about “other guys again.” At some point while the defendant was talking to his mother, the victim returned home.
At 10:08 P.M., witnesses heard multiple gunshots. A waitress from a nearby restaurant saw the defendant leave from the rear door of his house. The surrounding lights were bright enough for her to see him on the back steps of his porch. He walked very quickly down the back stairs into the yard, firing a gun. She heard several shots, a woman scream, and two more shots. She then heard metal hitting the ground and saw the defendant move quickly back up the stairs into the house. He went inside, shut off the interior lights, and came back outside. She then heard another set of shots.
Immediately after killing the victim, the defendant telephoned 911 and told police that his wife had been cheating on him for a long time, that he killed her by shooting her more than twelve times, that there were two guns, and that he would wait for them. When police officers arrived at the home, they found the deceased victim at the end of the driveway, surrounded by casings and ammunition.
The victim had been shot eighteen times. She had wounds to her head, torso, and legs. Multiple bullets and bullet fragments were found in the victim’s body and clothing. The medical examiner stated that some of the “wound tracks were consistent with [the victim] having been lying down and receiving those gunshots to the top of her head” and that the wounds to the victim’s inner ankle and the back of her thigh would not have been fatal. The cause of death was injuries to the skull, brain, spine, heart, lung, kidney, spleen, stomach, intestines, and major blood vessels.
b. The defendant’s case. To support his theory that the victim was involved with other men, the defendant introduced evidence about the victim’s participation in an Internet chat room about dogs, as well as telephone records showing the victim communicated with two men without the defendant’s knowledge. The defendant emphasized that in many electronic communications in the months prior to the murder, even after the victim and the defendant had argued, the couple expressed their love and care for each other.
The defendant testified about the night of the murder, stating that, after he saw his wife return home, he had gone into the bedroom alone, opened up his gun safe to put his gun away, and was interrupted by the victim entering the bedroom. He and the victim then had a conversation about “all these other guys,” who might take advantage of her during her vacation. When the victim screamed, “Fine. I’ve been having an affair,” and that she did not love him, he “lost control.” In the next few moments, he could only remember reaching toward the gun safe and seeing the victim’s face. He next found himself in the driveway holding an empty pistol. The defendant argued that the victim’s sudden statement of infidelity caused him to lose control and that learning of his wife’s infidelity was reasonable provocation for the defendant to lose control in the “heat of passion.”
To support this theory, the defendant introduced evidence (1) that while he was in the driveway immediately after the shooting, he told his mother, father, and brother-in-law that he killed his wife because she was cheating on him; and (2) that he told police that he killed his wife because she was unfaithful. Four witnesses testified for the defendant. The defendant’s mother, father, and coworker stated that on the day of the murder, the defendant had not exhibited any unusual behavior. An expert in forensic psychology, who also testified for the defense, stated that the defendant was not suffering from a mental illness at the time of the murder, but that he has difficulties “looking at unpleasant circumstances,” that he “works really hard to not deal with that [unpleasantness] until such time as he can’t avoid it,” and that the defendant’s personality traits were “obsessional,” “self-centered, pleasure oriented, and manipulative.”
The defense also proposed the theory that there was tension in the marriage because the couple was experiencing financial difficulties related to improvements to their home, the purchase of three dogs, and the couple’s two vehicles. The defendant stressed the fact that the couple went out to dinner two nights before the murder and had seemed happy.
2. Admission of evidence. The defendant argues that he is entitled to a new trial because much of the Commonwealth’s evidence constituted inflammatory “bad act” or character evidence and because the judge did not adequately instruct the jury at the end of trial. We consider each in turn.
a. Testimony of victim’s sister-in-law and best friend. The defendant argues that the judge erred in admitting evidence by the victim’s sister-in-law and the victim’s best friend. He asserts that testimony from these witnesses was based in hearsay and was misused by the prosecutor at trial.
The victim’s sister-in-law, who had spoken with the victim minutes before the shooting, testified about the victim’s request for a divorce which had occurred about three months before the murder. She stated that the victim told her she was “having a hard time dealing with [the defendant] and how he was,” that shewished the defendant would move out, and that she had suggested an open marriage so that the defendant “would go off with that person and leave her alone.” She also testified that she never saw any aggressiveness or violence between the victim and the defendant.
An out-of-court statement, if offered to prove the truth of what is asserted, is generally inadmissible. Commonwealth v. Qualls, 425 Mass. 163, 167 (1997), S.C., 440 Mass. 576 (2003). However, “[t]he state-of-mind exception to the hearsay rule calls for admission of evidence of a murder victim’s state of mind as proof of the defendant’s motive to kill the victim when and only when there also is evidence that the defendant was aware of that state of mind at the time of the crime and would be likely to respond to it.” Id., and cases cited.
Here, the statements are relevant to the victim’s hopes for a divorce, her dissatisfaction with the marriage, and the defendant’s response to those issues. See Commonwealth v. Borodine, 371 Mass. 1, 7-9 (1976), cert. denied, 429 U.S. 1049 (1977). They are also are relevant to the defendant’s motive to kill the victim because he was made aware of her state of mind at the time of the crime through their electronic communications. See Commonwealth v. Bins, 465 Mass. 348, 366 (2013); Commonwealth v. Andrade, 422 Mass. 236, 239 (1996). There was no error.
The victim’s best friend testified to the victim’s statements regarding an incident that occurred a few weeks before the victim’s death. At the start of this testimony, the judge instructed the jury that the testimony could be used only to understand the couple’s relationship. The witness stated that the victim had called her late one evening, “scared” and crying, and said that when she told the defendant she was not interested in having sexual relations with him, “he ripped the covers off of her and he was very close to her face and she thought he was going to hit her.”
After conducting a voir dire, the judge found that the best friend’s testimony was relevant to demonstrate an ongoing hostility or discord within the marriage; the statements were not unduly prejudicial; and, because the victim was “at that time communicating while still under the sway of the event,” the statements were an excited utterance.
The defendant asserts that the admission of this testimony was error because it did not constitute an excited utterance and functioned as evidence of the defendant’s prior misconduct to show the defendant’s bad character. He also argues that the testimony was unclear and differed from that of the defendant and that the prosecutor misused the testimony during closing argument. There was no error.
The contested testimony constitutes an excited utterance because there was a “sufficiently startling” event and the victim’s reaction was spontaneous, rather than the “result of reflective thought.” Commonwealth v. Santiago, 437 Mass. 620, 623 (2002), quoting 2 McCormick, Evidence § 272, at 204 (5th ed. 1999). The statements were not testimonial in nature because they “were not made in a deposition, affidavit, confession, or prior testimony, or in response to law enforcement interrogation.” Commonwealth v. Linton, 456 Mass. 534, 550 (2010). In addition, the record supports the judge’s determination that the victim’s best friend was competent and had personal knowledge of the event. See Commonwealth v. King, 436 Mass. 252, 255 (2002).
The statements concerning the incident also were relevant to the couple’s ongoing difficulties, revealed in this incident where the frightened victim “qualif[ied], characterize[d] and explain[ed] the underlying event.” Commonwealth v. DiMonte, 427 Mass. 233, 236 (1998), quoting Commonwealth v. Crawford, 417 Mass. 358, 362 (1994). Moreover, the defendant’s testimony concerning the same incident is arguably more prejudicial than that of the victim’s best friend because he stated that he “violently” pulled off the blankets, said he did not want to be married to a “bitch” or a “whore,” took off his wedding ring and left it on the night stand, and told her, “We’re through.” As to the matter of differences between the best friend’s testimony and other testimony, the jury must determine “the weight and credibility of the evidence.” Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007) and 460 Mass. 12 (2011). The testimony of the victim’s best friend was not overly prejudicial given the defendant’s own characterization of the event and in light of the judge’s instruction. See Commonwealth v. Williams, 450 Mass. 645, 651 (2008) (“Jurors are presumed to follow a judge’s instructions”). Finally, the prosecution did not mischaracterize the testimony in closing argument because the prosecutor referenced the defendant’s testimony about that night and used it to show the nature of the couple’s relationship. See Commonwealth v. Ferreira, 381 Mass. 306, 316 (1980) (closing argument may include “suggestions by counsel as to what conclusions the jury should draw from the evidence”).
b. Photographs. The defendant objected at trial to the admission in evidence of three autopsy photographs and a photograph of himself with one of his dogs. He argues that the autopsy photographs were “grotesque,” the dog photograph provided no insight regarding the defendant’s state of mind, and that they were therefore unduly prejudicial.
“The admissibility of photographic evidence is left to the discretion of the trial judge . . . .” Commonwealth v. Waters, 399 Mass. 708, 715 (1987). “[I]f the photographs possess evidential value on a material matter, they ‘are not rendered inadmissible solely because they are gruesome or may have an inflammatory effect on the jury.’” Commonwealth v. Ramos, 406 Mass. 397, 407 (1990), quoting Commonwealth v. Bys, 370 Mass. 350, 358 (1976). Here, the contested autopsy photographs depicted the extensive and serious injuries to the victim’s head. These photographs comprised a small portion of the exhibits from the medical examiner and the police investigation, and each revealed a different way the victim was wounded, including one photograph of the victim’s fractured and open skull. See Commonwealth v. Urrea, 443 Mass. 530, 545 (2005) (eleven autopsy photographs not prejudicial where each showed different injury). These photographs also were relevant to the defendant’s intent and whether the murder was premeditated and committed with extreme atrocity or cruelty, see Commonwealth v. Obershaw, 435 Mass. 794, 803 (2002); Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983), and were not unduly prejudicial because they depicted the victim’s wounds. The judge, who excluded duplicative photographs of the victim, did not abuse his discretion in admitting the autopsy photographs. See Commonwealth v. Olsen, 452 Mass. 284, 293-294 (2008).
During cross-examination of the defendant at the end of trial, over the defendant’s objection, the Commonwealth introduced a picture of the defendant with one of his dogs, which was one of three that the defendant had viewed on his computer minutes before the murder. The defendant testified that he did not remember looking at the photograph that night. The defendant argues that this photograph is inflammatory because, in addition to not being relevant to the murder, it shows the defendant as an aggressive individual. The Commonwealth contends that the prosecutor was impeaching the defendant’s statement that he needed firearm protection within his home, despite the couple’s three dogs, a fenced-in backyard, and a deadbolt on the door.
The Commonwealth offered this photograph immediately before the close of evidence, rather than earlier at trial, which could have left the jury with a particular visual impression of the defendant as an aggressive individual. Assuming, without deciding, that the admission of the photograph was error because it depicted the defendant as aggressive, however, the admission of the photograph does not warrant a new trial. See Commonwealth v. Peixoto, 430 Mass. 654, 660-661 (2000). The testimony of the victim’s best friend that the victim was “scared” one night after an altercation, the defendant’s statements that he shot the victim multiple times, and the characterization of the defendant by the defendant’s forensic psychologist could have led the jury to a similar conclusion.
c. References to sexual material. At trial, the defendant objected to the admission of evidence that referenced the defendant’s viewing of pornographic Web sites and the admission of unredacted portions of electronic communications describing sexual practices the defendant has termed “Bondage Dominance Submission Masochism.” He asserts these references were irrelevant and had a tendency to depict him as having a propensity for aggression. Portions of the electronic communications concerning this evidence were read in evidence, and the entirety of the instant messaging conversations referencing these sexual practices was presented to the jury in written form. These communications reference numerous details of the couple’s consensual sexual practices and their shared viewing of pornographic sites.
“All evidence, including that of a violent or sexual nature, must meet the threshold test of relevancy; that is, it must have a ‘rational tendency to prove an issue in the case . . . .’” Commonwealth v. Carey, 463 Mass. 378, 387 (2012), quoting Commonwealth v. LaCorte, 373 Mass. 700, 702 (1977). Even if the evidence is relevant, it “may not be admitted if ‘its probative value is substantially outweighed by the danger of unfair prejudice.’” Commonwealth v. Carey, supra at 387-388, quoting Mass. G. Evid. § 403 (2012). The evidence concerning the couple’s sexual practices does not constitute impermissible character evidence of the defendant as an aggressor.
Here, the judge asked each juror during individual voir dire whether they could view such types of evidence impartially, and dismissed those who did not answer in the affirmative. The communications also provided evidence of the defendant’s state of mind in the weeks prior to the murder and supported the Commonwealth’s theory that the defendant’s anger toward the victim regarding sexual activities could have contributed to his intent to kill with premeditation. See Commonwealth v. Carey, supra at 389 (defendant’s photographs of women being strangled and Internet searches related to strangulation were probative of his state of mind). In the context of the lengthy electronic communications between the couple, the contested references to sexual practices demonstrated that these consensual activities were a part of the couple’s day-to-day discussions and that they viewed their sexual relations as an important part of their relationship. See id. at 387. Further, the judge properly exercised his discretion when he did not allow graphic photographs of the victim, which had been saved on the defendant’s computer, see Commonwealth v. Berry, 420 Mass. 95, 109 (1995), and pictures of the sexual paraphernalia or the content of the pornographic Web sites referenced in the couple’s communications because they were irrelevant and unduly prejudicial. Commonwealth v. King, 387 Mass. 464, 475 (1982).
d. The defendant’s firearms. The defendant asserts that introduction of his numerous firearms, as well as evidence of his training and certification as a firearms instructor, constituted impermissible character evidence. He concedes that the evidence was relevant to his carrying and storage practices, but argues he was prejudiced by an excessive focus on this evidence. We review to determine whether there was prejudicial error. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
Police recovered a .45 caliber Glock semiautomatic pistol on the ground next to the victimand a .40 caliber Glock semiautomatic pistol on the ground in the backyard. These weapons had a capacity of thirteen rounds each, and there were twenty-six discharged shell casings consistent with the type of ammunition that would be used for these weapons. The ammunition found at the scene and in the victim’s body was hollow point ammunition that opens and expands on impact. The Commonwealth also introduced the defendant’s license to carry firearms, firearms instructor certification, business card as a firearms instructor, and membership card to the National Rifle Association. The defendant’s other firearms, holsters, and ammunition found in the defendant’s safe, as well as ammunition of the type of caliber for each gun, were also in evidence.
“[W]e have not unconditionally disapproved of the admission of weapons-related evidence unconnected to the commission of a crime.” Commonwealth v. Barbosa, 463 Mass. 116, 122 (2012), and cases cited. Information about the defendant’s firearms and firearm-related credentials was relevant to the Commonwealth’s theory of premeditation, particularly whether the defendant deliberately chose the two guns which he used to shoot the victim from his collection of firearms. See Commonwealth v. Hodge (No. 2), 380 Mass. 858, 863 (1980) (defendant’s proficiency with firearms relevant to deliberate shooting of victim); Commonwealth v. Bonomi, 335 Mass. 327, 356 (1957) (injuries showed conscious purpose to kill continuing for length of time and warranted finding of murder committed with premeditation). The evidence of the guns and the defendant’s licensing information demonstrated his access to each firearm, his familiarity with how each operated, and the appropriate ammunition for each. The evidence also was relevant to the issue whether the murder was committed with extreme atrocity or cruelty. See Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983).
Where the main issue at trial is whether the defendant acted in the heat of passion or killed his wife with premeditation (as was the case here), the evidence of his firearms and his access to them is highly relevant because the choice of weapons could indicate the defendant planned to kill the victim. The judge, who instructed the jury that there was no impropriety in the lawful possession of firearms, did not abuse his discretion in admitting this evidence. See Commonwealth v. Hodge (No. 2), supra, quoting Commonwealth v. D’Agostino, 344 Mass. 276, 279, cert. denied, 371 U.S. 852 (1962). However, the judge should not have allowed the defendant’s membership in a firearms-related group in evidence because it was not relevant. We conclude, however, that this evidence could not have substantially swayed the jury given the evidence of the defendant’s license to carry firearms and status as a firearms instructor. The error does not warrant a new trial. See Commonwealth v. Flebotte, supra.
3. Juror issue. In the midst of jury deliberation, a juror asked to speak with the judge, stating he wanted to tell him about his dual citizenship status. In the presence of counsel, the judge asked the juror pertinent information about his status as a United States citizen. The judge found that the juror, a Micmac who stated he has dual citizenship in Canada and the United States, who had lived in the United States since 1953, and who voted in United States elections, was a citizen. Because systemic exclusion of jurors based on race or ethnicity presents constitutional issues, the judge did not wish to dismiss the juror on grounds of nationality or ethnicity. See generally Powers v. Ohio, 499 U.S. 400 (1991). The judge gave defense counsel an opportunity for further hearing on the issue.
The defendant argues that, even though the juror stated he had dual citizenship in the United States and Canada, the judge erred by not dismissing the juror. The defendant claims that the juror’s presence prejudiced him because a defendant is to be tried by a jury of peers who are fellow citizens.
General Laws c. 234A § 74, which governs, inter alia, juror qualifications, challenges, and discharges, provides that “any defect in any procedure performed under this chapter shall not be sufficient to cause a mistrial or to set aside a verdict unless objection to such irregularity or defect has been made as soon as possible after its discovery or after it should have been discovered and unless the objecting party has been specially injured or prejudiced thereby.” Even assuming the judge, who also found that the juror was impartial, erred when he did not excuse the juror, the defendant has not demonstrated that he was prejudiced. See Commonwealth v. Garrey, 436 Mass. 422, 431 (2002) (“verdict shall not be set aside based on irregularity in excusing juror under G. L. c. 234A unless objecting party has been prejudiced thereby”). In the circumstances here, where the judge conducted individual voir dire and later questioned the juror regarding his citizenship status, the judge was the person best able to gauge the juror’s assertions. See Commonwealth v. Sanders, 451 Mass. 290, 307 (2008).
4. Prosecutor’s closing statement. The defendant asserts, in essence, that the prosecutor impermissibly suggested to the jurors that they must decide whether the law regarding “heat of passion” was no longer acceptable in 2010, when the trial took place. There is no error.
“[P]rosecutors are entitled to marshal the evidence and suggest inferences that the jury may draw from it,” Commonwealth v. Drayton, 386 Mass. 39, 52 (1982), and those inferences need only be reasonable and possible. Commonwealth v. Casale, 381 Mass. 167, 173 (1980). We presume the jury recognize the prosecutor’s role as an advocate, see Commonwealth v. Mitchell, 428 Mass. 852, 857 (1999), and review the prosecutor’s remarks “in light of the ‘entire argument, as well as in light of the judge’s instruction to the jury and the evidence at trial.’” Commonwealth v. Ortiz, 463 Mass. 402, 415 (2012), quoting Commonwealth v. Raposa, 440 Mass. 684, 694 (2004).
Voluntary manslaughter based on heat of passion requires evidence that there was “provocation that would have been likely to produce in an ordinary person” such a state of mind as would overcome reflection or restraint and that the provocation “actually did produce such a state of mind in the defendant.” Commonwealth v. Sirois, 437 Mass. 845, 854 (2002). See Model Jury Instructions on Homicide 64-67 (2013). “The jury must be able to infer that a ‘reasonable person would have become sufficiently provoked and that, in fact, the defendant was provoked.’” Commonwealth v. Burgess, 450 Mass. 422, 438 (2008), quoting Commonwealth v. Garabedian, 399 Mass. 304, 313 (1987).
Here, the contested comments were that the victim’s disclosure of infidelity was not the sort of provocation that would cause a reasonable adult male to lose his capacity for self-restraint because there were other options, such as telephoning a friend, sibling, or parent. See Commonwealth v. Smith, 460 Mass. 318, 325 (2011). The prosecutor’s statement properly made the distinction between a killing committed with “heat of passion,” where the defendant was sufficiently provoked, and one committed with premeditation.
5. Jury instructions. The defendant requested an instruction that “sudden oral revelation of infidelity may be sufficient provocation to reduce murder to manslaughter.” He contends that the judge’s denial to instruct the jury in this manner was error. He also argues that the judge’s instructions were contradictory and implicitly conveyed instructions that the fact learned in a sudden revelation of infidelity must be true. Additionally, he asserts that the defendant’s multiple statements that his wife was cheating on him immediately after the killing provide sufficient evidence to entitle him to his proposed instruction on reasonable provocation and an instruction that the government must disprove mitigation beyond a reasonable doubt.
The judge used the Model Jury Instructions on Homicide. See Commonwealth v. Mercado, 452 Mass. 662, 671 (2008). The judge was not required to adopt the defendant’s proposed language, which would have credited the defendant’s testimony that the victim’s statements constituted a “sudden revelation.” Rather, the language of the Model Jury Instructions permits the jury to make that determination. There was ample evidence, including the defendant’s testimony, that the idea of the victim’s infidelity was not new to the defendant, and the instructions on provocation were proper. See Commonwealth v. Ruiz, 442 Mass. 826, 839-840 (2004); Commonwealth v. Mercado, supra, quoting Commonwealth v. Andrade, 422 Mass. 236, 237-238 (1996) (“revelation alleged to have precipitated the homicide must be a ‘sudden discovery’”).
Although the defendant argues otherwise, the order of the charges, first defining murder and malice, and then defining how malice may be negated by mitigating circumstances, does not constitute error. See Commonwealth v. Rivera, 445 Mass. 119, 130-131 (2005) (proper to instruct on felony-murder before felony-murder in second degree). The judge instructed the jury on murder in the first degree, voluntary manslaughter, and “heat of passion,” in that order. Given the fact that the judge issued instructions that were nearly verbatim to the Model Jury Instructions, there was no error.
Likewise, the record does not support the contention that these instructions are contradictory and convey implicit instructions that the fact learned in a sudden revelation of infidelity must be true. The judge properly instructed the jury that they “have an obligation to return a verdict of the highest degree of murder that the Commonwealth has proved beyond a reasonable doubt,” an instruction which this court has approved. See Commonwealth v. Pimental, 454 Mass. 475, 484-485 (2009). Finally, the judge repeatedly instructed the jury on the presumption of innocence and the Commonwealth’s burden of proof. There were no errors in the instructions to the jury.
6. Relief pursuant to G. L. c. 278, § 33E. We have reviewed the entire record and see no reason to exercise our authority to reduce the jury’s verdict or to order a new trial.
 Electronic communications comprised much of the evidence of the couple’s relationship in the months leading up to the murder. The couple exchanged messages nearly continuously during the day. As part of their investigation, State police conducted
a forensic examination of the defendant’s home and work computers, and the victim’s computer. The parties stipulated to the authentication of the evidence from the computers. Telephone records from both the victim and the defendant were also introduced.
 In the months before the murder, the couple frequently discussed their relationship in instant messages, text messages, and electronic mail. The electronic communications also show that, interspersed with issues such as child care and grocery shopping, the couple also shared links to pornographic Internet sites, the specific content of which was excluded at trial, and routinely discussed their sexual interests and practices.
 In one 911 call to police admitted in evidence, the second round of shots can be heard in the background.
 The jury fairly could have inferred that the event described by the victim’s best friend was the same incident as the one described by the defendant and referenced in text messages between the couple on April 11, 2008. See Commonwealth v. Casale, 381 Mass. 167, 173 (1980) (inference is permissible if it is reasonable and possible).
 In the photograph, the dog’s teeth are bared as he runs toward an unknown person. The defendant, who is holding the dog’s leash, is looking intently at the object of the attack.
 After a pretrial hearing, the judge denied the defendant’s motion to suppress evidence seized from the external hard drive to the defendant’s home computer. At trial, the judge sustained the defendant’s objection to evidence that the links to pornographic Web sites were saved as “bookmarks” on the defendant’s computer.
 During individual voir dire, the judge referenced issues of “unconventional” sexual practices such as open marriage, “bondage,” and “domination or submission.”
 The jury could have found that the evidence of a sexual nature was relevant to the defendant’s state of mind immediately before he shot the victim. See Commonwealth v. Carey, 463 Mass. 378, 389 (2012) (images stored on defendant’s computer were relevant to and probative of his state of mind).
 An officer with the State police firearms division testified that the casings found at the scene had an “insufficient amount of striations” to connect the ammunition to the two guns found at the scene to the ammunition. The weapons belonging to the defendant and used in the shooting were not in dispute at trial.
 Police found the following firearms in the defendant’s gun safe: a loaded .357 caliber revolver; a loaded .44 caliber magnum revolver; an unloaded AR-15 assault rifle; an unloaded .22 caliber target pistol; and an unloaded .22 caliber long rifle.
 The juror also stated that his citizenship was recognized in both countries, asserted that he did not have any immigration issues, and referenced the Jay Treaty, which he believed grants him dual citizenship. See 8 U.S.C. § 1359 (2006); Akins v. Saxbe, 380 F. Supp. 1210, 1214 (D. Me. 1974).
 The prosecutor stated, “And even if you believe that she blurted out in those moments . . . and suddenly decide[d] well, I think I’ll just poke the bear right now and tell him. Is that reasonable provocation? Do you accept that? In 2010 that is reasonable provocation such that an adult male can lose his self-restraint and kill. Do you accept that? Because that’s the
first part of this analysis. Is it reasonable provocation for the reasonable person to have been sufficiently provoked?”
 The judge’s instructions were nearly verbatim to the Model Jury Instructions on Homicide in effect at the time of the trial, including the instruction that “mere words, no matter how insulting or abusive, standing alone do not constitute reasonable provocation. However, the existence of sufficient provocation is not foreclosed because a defendant learns of a fact from a statement rather than from personal observation.” We note that in March, 2013, a new edition of the Model Jury Instructions on Homicide was released. See Commonwealth v. Alcequiecz, 465 Mass. 557, 567 n.13 (2013).
“If the Commonwealth proves each of these two elements [of an unlawful killing] beyond a reasonable doubt but has
failed to prove the absence of heat of passion based on reasonable provocation, then you should return a verdict of guilty of manslaughter. If, however, the Commonwealth has failed to prove either of the two elements of voluntary manslaughter beyond a reasonable doubt, then you cannot find the defendant guilty of that crime and your verdict would be not guilty.”
There is no burden-shifting language here, as the defendant suggests.
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
COMMONWEALTH vs. SCOTT HANRIGHT.
Middlesex. May 6, 2013. ‑ August 28, 2013.
Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.
Joint Enterprise. Homicide. Felony‑Murder Rule. Intent. Robbery. Assault and Battery. Assault and Battery by Means of a Dangerous Weapon. Assault and Battery on Certain Public Officers and Employees. Firearms. Practice, Criminal, Capital case, Dismissal, Instructions to jury. Probable Cause. Evidence, Joint venturer, Intent.
Indictments found and returned in the Superior Court Department on March 31, 2011.
A motion to dismiss was considered by Thomas P. Billings, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Casey E. Silvia, Assistant District Attorney (Marian T. Ryan, District Attorney, with her) for the Commonwealth.
John P. Osler, Committee for Public Counsel Services, for the defendant.
SPINA, J. A grand jury returned twenty-two indictments against the defendant, Scott Hanright, including indictments charging murder in the first degree and various counts of masked armed robbery. The charges arose out of a robbery, perpetrated by Domenic Cinelli, of a jewelry counter at a department store in Woburn on December 26, 2010, and from other offenses Cinelli committed while attempting escape, including shooting a police officer to death. The Commonwealth is proceeding against the defendant as a joint venturer and coconspirator. In relevant part, the defendant moved to dismiss indictments relating to Cinelli’s offenses committed outside the department store as Cinelli tried to flee the scene of the armed robbery on the ground that the charges were not supported by sufficient evidence. See Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). These charges include: (1) assault and battery with a deadly weapon against a person over sixty years or older against Officer John Maguire, G. L. c. 265, § 15A; (2) assault and battery on a public employee against Maguire, G. L. c. 265, § 13D; (3) assault by means of a dangerous weapon against Officer Glenn Grammar, G. L. c. 265, § 15B; (4) assault by means of a dangerous weapon against Douglas Matney, G. L. c. 265, § 15B; and (5) discharge of a firearm within 500 feet of a building, G. L. c. 269, § 12E. In addition, the defendant moved to dismiss so much of the indictment alleging the murder of Maguire as included any theory of murder other than felony-murder. The motion judge allowed the portion of the defendant’s motion that sought dismissal of the listed charges and so much of the murder indictment as included theories of deliberate premeditation and extreme atrocity or cruelty because the judge determined that the Commonwealth presented no evidence that the defendant either participated in or intended any of the events after Cinelli left the department store following the robbery. See Commonwealth v. McCarthy, supra. The Commonwealth appealed, and we transferred the case to this court on our own motion. We reverse the portion of the motion judge’s decision that dismissed the challenged indictments and precluded the Commonwealth from proceeding at trial on all three theories of murder.
1. Facts. We recount the evidence presented to the grand jury in the light most favorable to the Commonwealth. See Commonwealth v. Walczak, 463 Mass. 808, 812 (2012) (Lenk, J., concurring). The defendant lived with his grandmother and met Cinelli, whom the defendant knew to have been imprisoned for over three decades for robbing jewelry stores, when Cinelli became romantically involved with the defendant’s grandmother. The defendant, aged nineteen at the time, did not own an automobile and did not drive, and Cinelli began driving the defendant to work. Approximately one month before the robbery, Cinelli mentioned the idea of robbing the jewelry counter while he and the defendant were out driving. Cinelli told the defendant that the plan was to go into the store with a gun and a mask, approach the jewelry counter, and demand money or jewelry. He also stated that he preferred to commit the robbery during a snow storm. The defendant knew that Cinelli had a gun because Cinelli had showed the defendant a gun when the two were in Cinelli’s apartment. On several occasions following the initial conversation about robbing the jewelry counter, Cinelli and the defendant drove possible escape routes. A few days before the robbery, Cinelli told the defendant that he had gone to the store by himself with the intention of robbing it, but changed his mind because police officers were present.
A blizzard dropped over a foot of snow on the evening of the robbery. Cinelli telephoned the defendant and asked if he wanted to go for a ride. Cinelli arrived at the defendant’s home shortly thereafter, and the defendant went outside and got into Cinelli’s automobile. The defendant realized that Cinelli intended to commit the robbery that evening because Cinelli was wearing a fake beard and a ski mask, and also because of the snow storm. The defendant later told the police that he did not see a gun in the automobile, but that he “just knew” that Cinelli was armed and was afraid that Cinelli would shoot someone.
Cinelli drove to the store and parked the car on the intended escape route. He left the key in the ignition and told the defendant to leave his door unlocked. Cinelli then gave the defendant a ski mask (which the defendant later told the police he put on his head but did not pull down over his face) and told the defendant that he was to run back to the car after Cinelli completed the robbery. Both Cinelli and the defendant left their cellular telephones in the automobile. The two then walked to the department store, and the defendant waited outside while Cinelli went inside. The defendant later denied that he was asked to, or did, play an active role in the robbery, and specifically denied that he was to serve as a lookout. He claimed that he merely went along because he was afraid of Cinelli, and because he hoped to share in some of the proceeds from the robbery.
Inside the store, Cinelli demanded jewelry from several department store employees, and collected it in a duffle bag. Responding to a telephone call that a robbery was in progress, Officer Grammar arrived on the scene. He observed the defendant standing outside, but then focused his attention on Cinelli, who was coming out of the department store carrying the duffle bag. Cinelli pointed a gun in Grammar’s direction, and a chase ensued. Matney, who was driving a snow plow, saw the chase and maneuvered the snow plow to block Cinelli’s exit. Although Matney did not observe a gun at that time, Cinelli raised his arm toward Matney as if preparing to shoot, causing Matney to raise the bucket on the snow plow to protect himself. Officer Maguire then arrived on the scene and joined in the chase. Upon seeing Cinelli, Maguire got out of his police vehicle and a gunfight ensued. Both Cinelli and Maguire died from gunshot wounds.
While the police were pursuing Cinelli, the defendant threw his ski mask into the trash and walked away from the scene of crime. As he was walking, he saw an elderly woman sweeping her porch and asked if he could use her telephone. He telephoned his aunt and asked for her boy friend’s telephone number, and then telephoned the boy friend and asked to be picked up in front of a nearby store. The defendant was arrested before the boy friend arrived.
2. Joint venture liability for escape-related crimes. The issue in this appeal is whether the defendant may be held liable on a theory of joint venture for the offenses Cinelli committed outside the store while attempting escape on the ground that such crimes were part of the over-all scheme of the underlying armed robbery. We conclude that the defendant may be liable for Cinelli’s escape-related crimes, but only if the Commonwealth proves beyond a reasonable doubt that he participated in, and intended, such crimes.
The felony-murder rule “imposes criminal liability for homicide on all participants in a certain common criminal enterprise if a death occurred in the course of that enterprise.” Commonwealth v. Matchett, 386 Mass. 492, 502 (1982), quoting Commonwealth v. Watkins, 375 Mass. 472, 486 (1978). To establish liability for felony-murder on a theory of joint venture the Commonwealth must prove “that a homicide occurred in the commission or attempted commission of that felony[.] [C]omplicity in the underlying felony is sufficient to establish guilt of murder in the first or second degree . . . if the homicide followed naturally and probably from the carrying out of the joint enterprise” (emphasis added). Commonwealth v. Ambers, 370 Mass. 835, 839 (1976). “The effect of the felony-murder rule,” both for principals and accomplices, “is to substitute the intent to commit the underlying felony for the malice aforethought required for murder” (emphasis added). Commonwealth v. Matchett, supra. See Commonwealth v. Housen, 458 Mass. 702, 708 (2011); Commonwealth v. Ambers, supra. Consequently, a defendant may be liable for felony-murder on a theory of joint venture not because he or she shared with the principal the requisite mental state for murder, but because he or she shared with the principal the intent to commit the underlying felony, which satisfies the intent requirement for felony-murder. See Commonwealth v. Housen, supra; Commonwealth v. Ambers, supra.
Outside the narrow context of joint venture felony-murder, we have held that joint venture liability should not extend to unintended crimes, even if such unintended crimes are the “natural and probable” consequences of a crime in which a defendant participated as a joint venturer. See Commonwealth v. Hogan, 379 Mass. 190, 193 (1979), and cases cited; Commonwealth v. Richards, 363 Mass. 299, 306-307 (1973). In Commonwealth v. Richards, supra at 305-308, we considered whether a joint venturer in an armed robbery may be liable for a coventurer’s crime of assault with intent to murder a police officer who arrived on the scene where the assault was committed in the course of, as opposed to during escape from, the armed robbery. We “firmly rejected” the argument that a joint venturer should be liable for “any crime committed by any of his partners which follows naturally and probably from the carrying out of the enterprise.” Id. at 306. We concluded that “guilt of the accessory is established when it is . . . shown that he intentionally assisted the principal in the commission of the crime and that he did this, sharing with the principal the mental state required for that crime.” Id. at 307-308. See Commonwealth v. Fillippini, 1 Mass. App. Ct. 606, 612-613 (1973), quoting Commonwealth v. Richards, supra at 307-308. See also Commonwealth v. Zanetti, 454 Mass. 449, 467-468 (2009). “We have not extended the concept of general complicity [of an accomplice] applicable in the area of felony-murder to other crimes,” and do not do so here. Commonwealth v. Hogan, supra.
This case presents a useful illustration of the divergent workings of the theories of joint venture liability for felony-murder as compared to joint venture liability for other crimes perpetrated by a coventurer while attempting escape from a crime in which a defendant participated as a joint venturer. Here, Cinelli shot and killed Maguire as Cinelli attempted to escape following the armed robbery. Consequently, a jury may find the defendant liable for Maguire’s death by virtue of the defendant’s complicity in the underlying armed robbery pursuant to the felony-murder rule; they need not find that the defendant specifically intended the harm to Maguire. See Commonwealth v. Housen, supra; Commonwealth v. Netto, 438 Mass. 686, 702 (2003). Cinelli also committed multiple other offenses in the course of his escape that did not result in death, including several additional offenses against Maguire, as well as offenses against others who were involved in the chase and survived. The intent to commit armed robbery, although sufficient to support liability for felony-murder on a theory of joint venture, is insufficient to support liability for these additional offenses. See Commonwealth v. Richards, supra at 306-308. Admittedly, our rule of imputed intent depends on whether the victim dies from a crime perpetrated against him (or, more precisely, whether the Commonwealth pursues a murder conviction on a theory of felony-murder, see note 5, supra). To that end, we simply note that the felony-murder rule operates according to a unique set of principles. As we stated in Commonwealth v. Richards, supra at 307, “[a] broad conception of complicity is indeed at work in the special field of so called felony-murder, but there is no basis for importing it . . . where murder did not occur.” See 2 W.R. LaFave, Substantive Criminal Law § 13.3(b), at 363 (2d ed. 2003) (LaFave).
We are well aware that we are in the minority of jurisdictions that have “expressly rejected the ‘natural and probable consequences’ doctrine” of joint venture liability outside the joint venture felony-murder context. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190-191 (2007). See LaFave, supra at § 13.3(b), at 361. Cf. Model Penal Code and Commentaries § 2.06(3) and comment at 310-313 (rejecting “natural and probable” consequences doctrine); LaFave, supra at § 13.3(b), at 363 n.40. Nevertheless, we remain committed to the view that
“general application of the ‘natural and probable consequence’ rule of accomplice liability is unwarranted. A’s guilt as an accomplice to one crime should not per se be a basis for holding A accountable for a related crime merely because the latter offense was carried out by A’s principal, for this as well would result in A’s guilt of a crime as to which he did not have the requisite mental state.”
LaFave, supra at 362-363. Thus, we do not dispense with the intent requirement for joint venture liability for each of a coventurer’s escape-related crimes. Joint venture liability for escape-related crimes is not coextensive with joint venture liability for escape-related felony-murder. See Commonwealth v. Richards, 363 Mass. 299, 306-307 (1973); Commonwealth v. Fillippini, supra.
3. Sufficiency of the evidence. Of course, just because it is not sufficient for joint venture liability (with the exception of liability for joint venture felony-murder) that a coventurer’s crimes follow “naturally and probably” from the underlying joint venture does not mean that the Commonwealth cannot charge a joint venturer for a coventurer’s crimes committed while attempting escape. See Commonwealth v. Richards, supra; Commonwealth v. Fillippini, supra. The Commonwealth simply must establish that the joint venturer knowingly participated in the crime with the intent that such crime occur. Commonwealth v. Zanetti, 454 Mass. 449, 467-468 (2009). Commonwealth v. Richards, supra at 307-308. Thus, we turn to the issue whether the challenged indictments were supported by probable cause. See Commonwealth v. Moran, 453 Mass. 880, 883-884 (2009); Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). The motion judge granted the defendant’s motion to dismiss the indictments for crimes Cinelli committed outside the store while attempting escape (assault and battery with a deadly weapon against a person sixty years or older; assault and battery on a public employee; two counts of assault by means of a dangerous weapon; and discharge of a firearm within 500 feet of a building), and so much of the indictment as alleges murder in the first degree on any theory other than felony-murder. He concluded that the evidence is insufficient as to both the defendant’s participation in and intent to commit each offense to sustain the indictments. See Commonwealth v. Zanetti, supra; Commonwealth v. Richards, supra. We have reviewed the evidence presented to the grand jury and conclude, contrary to the motion judge, that there is sufficient evidence to support the challenged indictments. Therefore, we reverse the portion of the motion judge’s order that grants the defendant’s motion to dismiss the challenged indictments and precludes the Commonwealth from proceeding at trial on the theories of murder based on deliberate premeditation and extreme atrocity or cruelty (in addition to felony-murder). Whether the defendant knowingly participated in, and harbored the intent required for, the escape-related crimes is a question appropriately left for trial. Commonwealth v. Zanetti, supra. Commonwealth v. Richards, supra.
Probable cause to sustain an indictment is a decidedly low standard. See Commonwealth v. Moran, supra; Commonwealth v. Hason, 387 Mass. 169, 174 (1982). See also Brinegar v. United States, 338 U.S. 160, 175-176 (1949), and cases cited. “[A]t the very least the grand jury must hear sufficient evidence to establish the identity of the accused . . . and probable cause to arrest him” for the crime charged. Commonwealth v. Moran, supra at 883, quoting Commonwealth v. McCarthy, supra. Probable cause has been defined as “reasonably trustworthy information . . . sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense.” Commonwealth v. Stevens, 362 Mass. 24, 26 (1972), quoting Beck v. Ohio, 379 U.S. 89, 91 (1964). Of course, “[t]he grand jury must be presented with evidence on each of the . . . elements” of each offense charged in order for an indictment to stand. Commonwealth v. Moran, supra at 884. Where, as here, the liability of a joint venturer is at issue, the Commonwealth must present the grand jury with evidence that the defendant both participated in, and shared the requisite mental state for, each crime charged. Commonwealth v. Zanetti, supra. Commonwealth v. Richards, supra. A joint venturer may share with a principal a willingness to perpetrate other crimes, whether “in the actual commission [of the underlying joint venture] or getting away after the crime was committed.” Commonwealth v. Richards, supra at 305. As concerns a joint venturer’s requisite intent, “it would suffice if the purpose . . . in the mind of the accessory was a conditional or contingent one, a willingness to see [a crime] take place should it become necessary to effectuate the [underlying joint venture] or make good an escape” (emphases added). Id. at 308. See Commonwealth v. Scanlon, 373 Mass. 11, 17 (1977) (“conditional or contingent intent”); Commonwealth v. Ferguson, 365 Mass. 1, 8 (1974) (same). In Commonwealth v. Ferguson, supra, we stated that “if the defendant had knowledge of and thus acquiesced in the carrying of the [weapon], he could be found to have been willing to see the [weapon] used as a means to the desired end.”
Here, the grand jury had probable cause to find that the defendant intentionally participated as a joint venturer in the assault and battery crimes against Maguire, the assault crimes against Grammar and Matney, and the discharge of a firearm. See Commonwealth v. Richards, supra. Certainly, the evidence suggests that Cinelli was the principal in the armed robbery and the escape-related offenses, and that the defendant played a relatively minor role in the over-all scheme. Cf. id. Nevertheless, there was evidence that the defendant participated in the planning of an escape: he and Cinelli mapped out escape routes several times in the month leading up to the robbery. Although he denies it, evidence suggests that the defendant was positioned as a lookout during the commission of the armed robbery. See Commonwealth v. DeJesus, 48 Mass. App. Ct. 911, 911-912 (1999). As such, the grand jury could have inferred that there was probable cause to believe the defendant was “in a position to render aid,” both in the armed robbery and in the subsequent escape. Commonwealth v. Casale, 381 Mass. 167, 173 (1980). Compare Commonwealth v. Mangula, 2 Mass. App. Ct. 785, 793 (1975) (position ready to aid), with Commonwealth v. Perry, 357 Mass. 149, 150, 152 (1970) (defendant, who was one block away, was not “in any location or position where he could aid in any way in the commission of the crimes”). Perhaps of greatest significance, the defendant admitted that he knew Cinelli had a gun and that the plan was that Cinelli would use the gun to perpetrate the armed robbery. See Commonwealth v. Ferguson, supra; Commonwealth v. Padgett, 44 Mass. App. Ct. 359, 363 (1998). In an interview with police following his arrest, the defendant also acknowledged his fear, notwithstanding Cinelli’s alleged assurances to the contrary, that Cinelli might hurt someone. Moreover, there was evidence that the defendant knew that Cinelli recently had been paroled following more than three decades of imprisonment for robbing jewelry stores. Thus, the grand jury could infer that the defendant knew that Cinelli was prepared to shoot to effectuate his escape and avoid returning to jail, and that the defendant shared with Cinelli a willingness to see the assault and battery and firearm crimes occur were they to become necessary to effectuate the joint plan, including both the underlying robbery and the subsequent escape. See Commonwealth v. Ferguson, supra; Commonwealth v. Richards, 363 Mass. 299, 305 (1973); Commonwealth v. Fillippini, 1 Mass. App. Ct. 606, 612-613 (1973).
Likewise, the Commonwealth presented sufficient evidence of the defendant’s participation and intent to support the indictment for Maguire’s murder in so far as it advances theories of deliberate premeditation and extreme atrocity or cruelty. To support a murder indictment on a theory of joint venture (other than for joint venture felony-murder), the Commonwealth must present evidence to the grand jury that the defendant (1) aided, encouraged, planned, participated in, or stood ready to assist Cinelli in killing Maguire, and (2) intended Maguire’s death, grievous bodily harm to him, or any act which a reasonable person would know created a plain and strong likelihood of death. See Commonwealth v. Earle, 458 Mass. 341, 346 (2010); Commonwealth v. Zanetti, 454 Mass. 449, 467-468 (2009). As stated previously, the Commonwealth presented evidence that the defendant was positioned such that he could render aid in the underlying armed robbery and subsequent escape, and that the defendant participated in the planning of the escape. Moreover, there was sufficient evidence to establish probable cause that the defendant shared the requisite intent, even if conditional or contingent, to see a person die if such were necessary to effectuate Cinelli’s escape. The grand jury heard evidence that the defendant acquiesced in Cinelli’s carrying of a gun and knew that the consequences of capture would be particularly severe for Cinelli, considering his criminal history. See Commonwealth v. Richards, supra; Commonwealth v. Padgett, supra (defendant knew coventurer “would use all force necessary to escape”). The subsequent question, whether the Commonwealth can sustain its burden of proof beyond a reasonable doubt as to joint venture liability for each of the challenged indictments and for murder on the theories of deliberate premeditation or extreme atrocity or cruelty, is one we leave for trial.
Assuming the Commonwealth decides to proceed on the challenged indictments and theories of murder in the first degree other than felony-murder, we lastly consider the requisite jury instructions. In light of the intent required to establish the defendant’s liability on a theory of joint venture for Cinelli’s crimes committed while attempting escape and that did not result in death (assault and battery with a deadly weapon against a person sixty or over; assault and battery on a public employee; two counts of assault by means of a dangerous weapon; and discharge of a firearm within 500 feet of a building), the trial judge should instruct the jury on each crime individually and on the defendant’s liability for aiding or abetting with respect to each crime individually. Commonwealth v. Zanetti, supra; Commonwealth v. Richards, supra at 305-306. Similarly, as concerns the murder in the first degree of Maguire based on deliberate premeditation and extreme atrocity or cruelty, the trial judge should instruct the jury on the elements of murder and on the defendant’s liability on a theory of aiding or abetting. See Commonwealth v. Zanetti, supra; Commonwealth v. Richards, supra. The trial judge may also instruct the jury on contingent or conditional intent, and should make clear that the intent to commit the underlying armed robbery is not sufficient to establish liability on any of the challenged indictments. See Commonwealth v. Hogan, 379 Mass. 190 (1979); Commonwealth v. Scanlon, 373 Mass. 11, 17 (1977); Commonwealth v. Richards, supra. As to the charge of murder in the first degree of Maguire on the theory of felony-murder with armed robbery as the predicate felony, the trial judge should instruct the jury on felony-murder liability, including that a joint venturer’s shared intent to commit the underlying armed robbery substitutes for the malice required for murder. See Model Jury Instructions on Homicide 13-17, 50 (2013).
4. Conclusion. We reverse the grant of the defendant’s motion to dismiss the indictments that charge the defendant with the assault and battery and firearm crimes perpetrated by Cinelli during his flight following the armed robbery. We likewise reverse the grant of the defendant’s motion to dismiss that prevents the Commonwealth from proceeding at trial on all three theories of murder.
 The defendant also moved to dismiss the charge of murder in the first degree based on a theory of felony-murder on the ground that the felony-murder rule is unconstitutional. The motion judge denied that portion of the defendant’s motion, and the defendant does not press his challenge to the constitutionality of the felony-murder rule on appeal. He also concedes that the evidence presented to the grand jury established probable cause to support the felony-murder charge and, therefore, does not challenge that theory of murder.
 The defendant does not challenge the sufficiency of the evidence to prosecute him as a joint venturer to the underlying robbery offenses committed by Domenic Cinelli when Cinelli was inside the store.
 We have recognized that escape efforts may be attributed to the underlying, predicate felony for the purposes of the application of the felony-murder doctrine. See Commonwealth v. Rogers, 459 Mass. 249, 252-256, cert. denied, 132 S. Ct. 813 (2011); Commonwealth v. Dellelo, 349 Mass. 525, 529-530 (1965).
 In its brief, the Commonwealth argued that the defendant need not have shared with Cinelli the intent to commit the escape-related crimes to be held liable on a theory of joint venture. At oral argument, however, the Commonwealth appears to have conceded its burden to establish intent as to each of Cinelli’s escape-related crimes.
 The Commonwealth also wishes to proceed against the defendant for joint venture murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty. To succeed on either theory, unlike under a theory of joint venture felony-murder, the Commonwealth must prove that the defendant intended the harm to Maguire. See Commonwealth v. Earle, 458 Mass. 341, 346 (2010); Commonwealth v. Richards, 363 Mass. 299, 306-308 (1973).
 For other jurisdictions that follow a similar approach to joint venture liability outside the limited context of felony-murder, see Gonzales v. Duenas-Alvarez, 549 U.S. 183, at 196 Appendix B (2007), and 2 W.R. LaFave, Substantive Criminal Law § 13.3(b), at 363 n.35 (2d ed. 2003) (LaFave), and sources cited.
 Nor does the scope of joint venture liability extend, as the Commonwealth argues, to the unintended crimes of a coventurer committed “in furtherance of” a joint venture. We have used the phrase “in furtherance of” to delineate the scope of the joint venture exception to the rule against hearsay, and to determine whether an act of a defendant constitutes participation in a joint venture. See Commonwealth v. Bright, 463 Mass. 421, 426 (2012); Commonwealth v. Borans, 379 Mass. 117, 146 (1979); Commonwealth v. Blow, 370 Mass. 401, 407-408 (1976). Such language is not used to define the scope of the criminal liability of an accomplice. Moreover, in the related conspiracy context, we have rejected the view of that members of a conspiracy are liable for the substance offenses of coconspirators committed “in furtherance of” the conspiracy. Commonwealth v. Richards, supra at 306. “Under the better view, one is not an accomplice to a crime merely because that crime was committed in furtherance of a conspiracy of which he is a member, or because that crime was a natural and probable consequence of another offense as to which he is an accomplice.” LaFave, supra at § 13.3, at 356.
 We offer no comment whether the evidence is sufficient to defeat a motion for a required finding of not guilty.
 After his arrest following the robbery, the defendant told police that he asked Cinelli if Cinelli was worried about violating his parole and going back to jail, and that Cinelli indicated that he knew he would spend the rest of his life in jail if he was caught.
 Murder in the first degree (other than on a felony-murder theory) requires proof of these elements and also of deliberate premeditation and either extreme atrocity or cruelty. Commonwealth v. Earle, supra at 346 n.7.
 In Commonwealth v. Scanlon, 373 Mass. 11, 18-19 n.1 (1977), we determined that the following instruction on the requisite intent of an accomplice was proper: “[I]t is not enough if [the defendant] merely thought a crime might or may be committed, that the victim might get killed. Even if that happened . . . it is not enough. He has to know that there is more than a possibility or more than a ‘maybe.’ He has to know that there is a substantial chance that the victim will be killed.”
COMMONWEALTH vs. ROBERT ROY.
Bristol. December 7, 2012. ‑ April 11, 2013.
Present: Ireland, C.J., Spina, Botsford, Gants, & Lenk, JJ.
Homicide. Practice, Criminal, Capital case, Argument by prosecutor, Instructions to jury. Malice. Evidence, Relevancy and materiality, Consciousness of guilt.
Indictment found and returned in the Superior Court Department on December 5, 2007.
The case was tried before Robert J. Kane, J.
Charles K. Stephenson for the defendant.
Eva M. Zelnick, Assistant District Attorney, for the Commonwealth.
IRELAND, C.J. On February 25, 2010, a jury convicted the defendant, Robert Roy, of murder in the first degree of his wife on the theory of extreme atrocity or cruelty. The murder was alleged to have occurred in March, 1986. Represented by new counsel on appeal, the defendant asserts that a reduction in the verdict is required because there was insufficient evidence to support the jury’s verdict of murder by extreme atrocity or cruelty. He also argues error in the admission of evidence, the prosecutor’s closing argument, and the jury instructions, and seeks relief pursuant to G. L. c. 278, § 33E. Because we conclude that no error requires a new trial and discern no reason to exercise our power pursuant to G. L. c. 278, § 33E, we affirm.
Background. We recite the facts the jury could have found, reserving certain details for our discussion of the issues raised. See Commonwealth v. Belcher, 446 Mass. 693, 694 (2006).
The victim, who was nineteen years old when she disappeared in March, 1986, married the defendant in December, 1984. She and the defendant had a volatile relationship. Sometime in the late fall of 1985, the victim separated from the defendant and moved into her mother’s home in Acushnet. She would see the defendant periodically after their separation, and the defendant at one point stayed in the cellar at his mother-in-law’s home, without his mother-in-law’s knowledge. There were numerous times that neighbors saw the defendant cross their yards to get to the victim’s mother’s home. Once there, the defendant sat on the back steps or looked in the windows. This behavior continued until the victim disappeared. In February, 1986, the defendant took his sister’s vehicle without her permission and followed the victim to New Bedford. He was involved in an accident on the way and abandoned the damaged vehicle at the scene.
During their separation, the defendant was jealous of other men he saw with the victim. He asked the victim’s sister about the victim’s whereabouts and her clothing. The defendant physically attacked one man who had dropped the victim off after her evening waitressing shift and told him that he and the victim were trying to make their relationship work. The night before the victim’s disappearance, the defendant vandalized the vehicle of another man whom the victim had been dating.
At approximately noon on March 4, 1986, the victim visited a neighbor, repaid some of the money she owed her, and told her she would pay the outstanding twenty dollars the next day because she was working that night. After returning home a few minutes later, the victim informed her mother that she was going out to meet the defendant, who had telephoned her that morning.
The victim and the defendant met in a nearby field. The victim did not return. Later that evening, the victim’s sister saw the defendant at her mother’s home, looking “flushed . . . like he had been running.” He retrieved his belongings from the cellar, telling the victim’s sister, “The cops are after me.”
Two days later, the victim’s sister and mother found the victim’s Nike brand sneakers and socks in a culvert near the field. They filed a missing person report that day. Police conducted multiple search efforts to find the victim; the defendant did not participate. He also fled from the police on several occasions when police tried to speak with him. On March 10, 1986, police were able to contact and question the defendant, who admitted that, on the day the victim disappeared, he had telephoned and asked her to meet him in the field. He told police that they met there and talked, and although the defendant wanted to continue their relationship, the victim told him she was going to go to Florida with someone named Kevin. During the course of the initial investigation, police tested the defendant’s denim jacket, which had a reddish-brown stain, for blood. Police also took possession of a white pullover sweatshirt, similar to the one the victim wore on the day of her disappearance, that was found in the woods approximately one month after the victim disappeared.
On March 30, 1986, the defendant told his friend he was moving to Florida and requested help in “moving some stuff.” They put a rolled up and tied rug into the bed of the friend’s truck. The defendant instructed his friend to drive in a manner whereby other vehicles would not see the truck’s contents. They stopped at a quarry in Dartmouth, a local swimming place, lifted the rug from the truck bed, and placed it in the water. The defendant made sure the rug was submerged in deeper water. As they drove away, the defendant said, “See ya, bitch.” The defendant threatened to kill his friend’s pregnant wife if he told anyone what they had done.
The defendant moved to Florida, where he lived for some time. While out of State, he maintained contact with the friend who had helped him move the rug, and whom he telephoned approximately one month after he moved to inquire whether anything was in the newspaper. The defendant also asked him to “get rid of” a cement cinder block that was in his friend’s yard. At some point, the defendant returned to Massachusetts, where he admitted to two people to killing the victim and disposing of her body.
In April, 1990, divers found the victim’s partially skeletonized remains in the quarry in Dartmouth. The victim’s body was in a sitting position suspended in the water, and her legs were bound together by a rope attached to a cement block laying at the bottom of the quarry. The rope connecting the victim’s body to the cinder block had been looped twice around the victim’s knees, with the other end tied off to one of the outer holes of the cinder block.
Subsequent dives recovered some of the victim’s bones, including her fractured jaw and skull, as well as remains of a chair and parts of the victim’s clothing, including a white shirt collar. The medical examiner, who had performed the autopsy on the victim, testified that the victim died as a result of blunt force trauma to the head.
No new evidence came to light until 2007, when police, who were interviewing former Acushnet residents living in Florida, learned of one of the defendant’s confessions. On December 5, 2007, a Bristol County grand jury returned an indictment charging the defendant with murder. While detained and awaiting trial, the defendant discussed the victim with another inmate.
The defendant, who did not testify at trial, offered a theory of defense that someone else, such as a stranger or someone dating the victim, had killed, and perhaps sexually assaulted, the victim and dumped her body in the quarry. Based on the defendant’s statement to police that the victim had told him she was going to Florida with someone named Kevin, and a witness who testified he saw the victim in Florida more than one year after her disappearance, defense counsel also argued in the alternative that the victim had run away. Further, counsel suggested that the police investigation had been inadequate, that the defendant had been targeted by police, and that the defendant’s admissions did not amount to a confession. He also asserted that the evidence of a broken jaw and fractured skull did not warrant a conviction of murder in the first degree based on a theory of extreme atrocity or cruelty.
Discussion. 1. Admission of medical examiner’s testimony. The defendant argues that the medical examiner’s testimony was speculative because there was no statement as to what caused the blunt force trauma to the victim’s skull. A medical examiner’s testimony is not speculative where the testimony is based on a reasonable degree of medical certainty and his or her experience and knowledge. See Commonwealth v. Rodriguez, 437 Mass. 554, 563 (2002); Commonwealth v. Nadworny, 396 Mass. 342, 358 (1985), cert. denied, 477 U.S. 904 (1986). There was no error. Here, the medical examiner testified that there could have been several potential causes of the victim’s injuries, but that the cause of death was blunt force trauma to the head.
The medical examiner testified as follows: the victim’s skull had a four- to five-inch fracture on the outer plate and inner plate of her skull at the back of her head. He stated that “[c]onsiderable” force was required to fracture a skull in that manner, and the impact resulting in such a fracture would “cause the brain to react,” rendering a person unconscious and ultimately causing death in “seconds, minutes, hours, [or] days.” The skull fracture could have been caused by “some force applied” to the head by a flat solid object such as “a floor,” “a board,” “a tree,” “a rock,” or “the ground.”
The victim’s jaw was fractured in a manner consistent with a punch to the front or side of the face. The jaw and skull fractures were “consistent with two separate impacts,” both of which would be caused by “considerable force” but were not consistent with an impact with water. The jaw and skull fractures were on the same side of the body, indicating that the head wound was not the result of a fall caused by being punched in the jaw. The victim’s lower torso was in a seated position, with her knees at an angle, as though she were sitting.
Here, the medical examiner’s testimony was based on a reasonable degree of medical certainty and his experience and knowledge. There was no error in the admission of the medical examiner’s testimony. See Commonwealth v. Rodriguez, supra; Commonwealth v. Snell, 428 Mass. 766, 779, cert. denied, 527 U.S. 1010 (1999).
2. Sufficiency of the evidence. The defendant asserts that the evidence does not support a conviction of murder in the first degree on the theory of extreme atrocity or cruelty. A jury can consider several factors to determine whether a murder was committed with extreme atrocity or cruelty: “ indifference to or taking pleasure in the victim’s suffering,  consciousness and degree of suffering of the victim,  extent of physical injuries,  number of blows,  manner and force with which delivered,  instrument employed, and  disproportion between the means needed to cause death and those employed.” Commonwealth v. Cunneen, 389 Mass. 216, 227-228 (1983). If the jury find even one of these factors, they may establish that the murder was committed with extreme atrocity or cruelty, Commonwealth v. Young, 461 Mass. 198, 204 (2012), citing Model Jury Instructions on Homicide 14 (1999), and “[b]ecause they are not elements of the offense, unanimity is not required.” Commonwealth v. Moses, 436 Mass. 598, 606 (2002).
The defendant first argues that the Cunneen factors are vague and arbitrarily applied and therefore have resulted in a violation of his constitutional due process rights. We addressed this issue in Commonwealth v. Moses, supra, where we concluded that the factors do not violate a defendant’s constitutional rights. Here, at least three Cunneen factors (the victim’s consciousness and degree of suffering, the manner and force causing the victim’s physical injuries, and the defendant’s indifference to or taking pleasure in the victim’s suffering) were among the reasonable inferences a rational jury could make.
The defendant next asserts that the Commonwealth has not met its burden to prove that he killed the victim with extreme atrocity or cruelty because it offered three separate reasons for the victim’s death, and because evidence of a broken jaw and skull fracture does not warrant a conviction of murder committed with extreme atrocity or cruelty.
A conviction may be based on circumstantial evidence and the permissible inferences drawn therefrom. Corson v. Commonwealth, 428 Mass. 193, 197 (1998). A permissible inference is one that is “reasonable and possible”; it need not be “necessary or inescapable.” Commonwealth v. Casale, 381 Mass. 167, 173 (1980). “Whether an inference is warranted or is impermissibly remote must be determined, not by hard and fast rules of law, but by experience and common sense.” Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007), and 460 Mass. 12 (2011), quoting Commonwealth v. Giang, 402 Mass. 604, 609 (1988).
There was ample evidence from which the jury could reasonably infer that the defendant murdered the victim with extreme atrocity or cruelty. The defendant’s admissions alone provide sufficient evidence that the defendant killed the victim with extreme atrocity or cruelty. The defendant told one witness that he became angry after finding the victim at a party, took her outside, drove her away, then “slammed her down . . . strapped her to [a] chair . . . taped her mouth shut [and] threw her in the . . . bottomless pit . . . where she won’t be lying and playing games.” While telling the witness what had occurred, the defendant mimicked the victim’s pleading to return home and used his hands to indicate his actions of punching and shaking her. When the witness told the defendant that “bodies float,” the defendant replied, “[N]ot this one. It’s weighed down with a block.” When speaking to an inmate while awaiting trial, he stated that the victim was “a lying cheating whore, and he couldn’t take it anymore, so he choked her out [and] took her body for a swim.” From these statements, the jury reasonably could infer that the defendant was indifferent to the victim’s suffering. Moreover, his single admission that he “choked out,” or strangled, the victim, supports a reasonable inference that the defendant was indifferent to or took pleasure in the victim’s conscious suffering. See Commonwealth v. Mejia, 461 Mass. 384, 393 (2012) (verdict of murder committed with extreme atrocity or cruelty supported by evidence of death occurring after three minutes of strangulation).
Even without the defendant’s admissions, there was sufficient physical evidence to support the conviction. The medical examiner’s findings that the victim was hit in the back of the head with a hard, flat object, the blow causing death in “seconds, minutes, hours, [or] days,” is not only evidence of the defendant’s indifference to the victim’s conscious suffering, but also evidence of the excessive manner and force by which the physical injuries were inflicted. See Commonwealth v. Podkowka, 445 Mass. 692, 698 (2006) (reasonable inference of extreme atrocity or cruelty where jury could infer victim experienced severe pain when no single blow to victim’s head caused unconsciousness); Commonwealth v. Anderson, 445 Mass. 195, 201-202 (2005). The jury also reasonably could have inferred that the 240-pound defendant tied the victim, who was “petite,” to a chair, and then beat her such that she sustained injury to her jaw and skull and threw her into the quarry. See Commonwealth v. Raymond, 424 Mass. 382, 383, 390 (1997).
The defendant argues that the Commonwealth presented inconsistent “competing hypotheses” of the victim’s death and needed to prove that each potential manner of death occurred with malice. This argument is unavailing because the Commonwealth presented evidence that the victim was assaulted in a single attack that led to her death, not three separate incidents, and the medical examiner testified, based on physical evidence, that the cause of death was blunt force trauma to the skull.
3. Admission of defendant’s jailhouse telephone call recordings. At trial, the Commonwealth introduced evidence that the defendant’s jacket had a blood stain that matched the victim’s deoxyribonucleic acid (DNA). Over the defendant’s objection, the judge admitted a portion of an April 14, 2008, telephone call between the defendant and a woman, made while the defendant was incarcerated and awaiting trial. In the recording, the defendant discussed the stain on his jacket and made statements concerning its nature and origin. The defendant argues that the admission of this evidence amounted to prejudicial error because its relevance was outweighed by its prejudicial effect. See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994); Commonwealth v. Dunn, 407 Mass. 798, 807 (1990).
The defendant’s conversation addresses the issue whether the stain on the jacket was relevant because it implicated the defendant in the victim’s murder. See Commonwealth v. Valentin, 420 Mass. 263, 270 (1995), quoting Commonwealth v. Dunn, supra (“Evidence is relevant if it has a rational tendency to prove a material issue”). The defendant was hypothesizing about how blood came to be on his jacket and was speculating about how the results of the DNA testing might be explained away. His statements indicate consciousness of guilt. Moreover, the recording was not cumulative of other evidence. The recording presents the defendant’s admissions concerning the stain on his jacket, which he categorizes as blood. This information is not repetitive of the State police criminologist’s testimony about testing the stain. See Commonwealth v. Brown, 449 Mass. 747, 770 (2007), quoting Commonwealth v. Carroll, 439 Mass. 547, 553 (2003) (“judge may exclude evidence that is ‘cumulative, repetitive, or confusing’”).
Admission of the recording did not unduly prejudice the defendant. “[W]hether the probative value of relevant evidence is outweighed by its prejudicial effect [is a] question within the sound discretion of the judge.” Commonwealth v. Martinez, 431 Mass. 168, 174 (2000). It is clear that the judge “considered the duty of the Court to engage in a weighing calculation.” He reflected on potential prejudice to the defendant when he discussed with counsel, outside the presence of the jury, the “most direct way, the least prejudicial way to introduce the calls.” The judge relied on his “knowledge of the case as a whole,” viewed the conversation “in the context of other calls,” and admitted only a small portion of the recording to ensure evidence not relevant to a material issue was excluded and to minimize any prejudicial impact. Further, the jury could have credited the defendant’s admission, “I believe the blood that’s on my jacket is from before, a long time before she disappeared,” as a truthful statement, in which case the admission of the recording could have bolstered the jury’s belief in the defendant’s innocence. There was no error. See Commonwealth v. Simpson, 434 Mass. 570, 578-579 (2001) (evidentiary rulings are “entrusted to the trial judge’s broad discretion and are not disturbed absent palpable error”).
Moreover, to the extent that the recording reminded the jury that the defendant had been incarcerated, any potential prejudice would have been adequately cured by the judge’s instruction. The judge stated, “[T]he fact that the defendant may have been held awaiting trial means nothing. Nothing. Absolutely nothing. Because that’s the law. The law is that it’s presumed that he will be held. And so you can’t of course hold that against him. That has nothing to do with his presumption of innocence. It has nothing to do with his right to a fair trial. It is irrelevant, and you cast it from your minds.” “Jurors are presumed to follow a judge’s instructions,” Commonwealth v. Williams, 450 Mass. 645, 651 (2008), and we presume they followed the instructions here.
4. Prosecutor’s closing argument. The defendant next asserts that the prosecutor “misuse[d]” the evidence in his closing argument, creating impermissible inferences that appealed to jurors’ emotions. We view the prosecutor’s remarks “in light of the ‘entire argument, as well as in light of the judge’s instruction to the jury and the evidence at trial.’” Commonwealth v. Ortiz, 463 Mass. 402, 415 (2012), quoting Commonwealth v. Raposa, 440 Mass. 684, 694 (2004). The defendant’s argument that these errors warrant a reversal of his conviction is unavailing. See Commonwealth v. Vuthy Seng, 436 Mass. 537, 556, cert. denied, 537 U.S. 942 (2002), S.C., 456 Mass. 490 (2010).
a. We review the following statements to which the defendant objected to determine whether there was prejudicial error. Commonwealth v. Flebotte, supra at 353, quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983), (error nonprejudicial if “the conviction is sure that the error did not influence the jury, or had but very slight effect”).
First, the defendant challenges the prosecutor’s remark that the victim was “begging for her life.” The prosecutor stated, “How would [the witness] know that [the defendant] was using those words to describe how he killed her and the method he killed her when she’s essentially begging for her life? And how [the witness] then talked about the number of blows.”
In closing argument, “[p]rosecutors are entitled to marshal the evidence and suggest inferences that the jury may draw from it.” Commonwealth v. Drayton, 386 Mass. 39, 52 (1982). Those inferences need only be reasonable and possible. Commonwealth v. Casale, 381 Mass. 167, 173 (1980). Here, the prosecutor’s closing remarks were based on a witness’s testimony that the defendant mimicked the victim’s repeated request to go home while he was shaking her and beating her. There was no error.
We also find no merit in the defendant’s assertion that the prosecutor’s remarks concerning the rug were error because no rug was found and there was no testimony as to the buoyancy or the decomposition of the rug. The prosecutor stated, “[W]hy would a rug if you rolled it up, throw it in the water, why would that sink to the bottom? Why? . . . Everything is buoyancy. Clothing or something of that type of material, maybe eventually over time it will sink down.” With this statement, the prosecutor refers to the testimony concerning the braided rug made from natural fibers that the defendant threw into the quarry. It is not an unreasonable inference that this type of rug, thrown into water, would decompose over time.
The defendant also challenges the prosecutor’s use of one witness’s testimony about the rug, specifically that the defendant and the witness moved the rug out of the truck, and that the defendant moved the rug further into the water. The prosecutor’s statement is firmly based on the witness’s testimony. If there were conflicting inferences that could be made from that witness’s testimony, “it is for the jury to determine where the truth lies.” Commonwealth v. Lao, 443 Mass. 770, 779 (2005). The prosecutor’s statement was not error.
Citing Commonwealth v. Coren, 437 Mass. 723, 732 (2002), the defendant asserts that it was prejudicial error for the prosecutor to employ hypothetical dialogue that showed the defendant’s hostility toward the victim. He challenges the prosecutor’s statement, “[The victim's] out there working. And of course what does she get when she comes home? Hostility. ‘Who you seeing? Who you talking to? Who you doing this with?’”
Hypothetical dialogue is prejudicial where it goes to the heart of the case and is not based on evidence offered at trial. Id. at 732-733. Here, the prosecutor relays testimony that, after the victim moved back to her mother’s home, the defendant asked the victim’s sister questions about the victim’s whereabouts, whom the victim was with, and what the victim was wearing. The prosecutor’s dialogue is nearly identical to the testimony of the victim’s sister. Further, the prosecutor’s references to the defendant’s hostility can be reasonably inferred from evidence of the violence that the defendant exhibited toward the victim and the defendant’s admission that he was jealous of other men whom the victim dated. The prosecutor’s statements remained properly grounded in the evidence. See Commonwealth v. Corriveau, 396 Mass. 319, 337 (1985).
The defendant objected at trial to the prosecutor’s statement that the defendant was one of two people who knew “precisely how it happened that day in the field.” The defendant’s argument that the statement shifted the burden of proof to the defendant is unpersuasive because the defendant told police that he had met the victim in the field the day of her disappearance. Moreover, the judge issued multiple instructions on the presumption of innocence and the Commonwealth’s burden to prove the elements of the crime, which would have cured any potential prejudice.
b. Concerning the remaining challenges to the prosecutor’s closing argument to which the defendant did not object, we review for a substantial likelihood of a miscarriage of justice. See Commonwealth v. Ortiz, supra. The defendant argues, in essence, that the statements that follow are “untrue” or mischaracterizations of evidence in contravention of Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) (in closing argument, prosecutor should not misstate evidence).
“Counsel may . . . attempt to assist the jury in their task of analyzing, evaluating, and applying evidence. Such assistance includes suggestions by counsel as to what conclusions the jury should draw from the evidence.” Commonwealth v. Ferreira, 381 Mass. 306, 316 (1980). We review the prosecutor’s argument in the context of the whole argument and the jury instructions. Commonwealth v. Phillips, 452 Mass. 617, 630 (2008). We note that most of the defendant’s arguments concerning the prosecutor’s statements are premised on our accepting an inference more favorable to the defendant, not on what constitutes permissible argument. See Commonwealth v. Kozec, supra. All of the challenged statements are firmly based in evidence. See Commonwealth v. Pope, 406 Mass. 581, 587 (1990) (prosecutors must tailor remarks to ensure they remain properly grounded in evidence).
The prosecutor stated that the victim was “scared” and “barefoot” when, at some point, she left the apartment that she shared with the defendant. This remark is based on testimony that a witness saw her not wearing shoes and that her demeanor was “agitated, nervous, upset,” as well as other testimony that the victim was scared when the defendant beat her. Moreover, even if this had been error, the prosecutor’s comment would not have produced undue sympathy or bias that rises to a substantial likelihood of a miscarriage of justice given all the evidence of the couple’s volatile relationship. See Commonwealth v. Marquetty, 416 Mass. 445, 451 (1993) (“we assume that the jury have a reasonable measure of sophistication and are capable of sorting out hyperbole”). There was no error.
The prosecutor’s statement that the defendant, but not the victim, was interested in continuing their relationship is based on evidence of the defendant’s own admissions. In particular, the defendant told police that he believed the couple was “work[ing] things out,” but the victim “wasn’t interested in getting back together.” The jury also could have inferred that the victim did not wish to continue the relationship based on the victim’s move from the apartment she shared with the defendant to her mother’s home, and the defendant’s violence toward her. The prosecutor’s remarks were based in evidence, and the prosecutor was merely “arguing what conclusion the jury should draw from the evidence.” Commonwealth v. Ruiz, 442 Mass. 826, 837 (2004).
We likewise find no error in the prosecutor’s characterization of the violence in the relationship as “brutality.” The defendant would like to characterize his pushing the victim against the wall and hitting her as a “scuffle,” a word used by a witness to describe another incident. It is the jury’s duty to determine which parts of a witness’s testimony are credible. See Commonwealth v. Deane, 458 Mass. 43, 52 (2010). Given the defendant’s own statement that he “used to beat [the victim] before, when he was drunk,” evidence the defendant cut up the victim’s clothes, and the testimony about the couple’s violent arguments, the prosecutor’s statements are fairly inferable and fall within the permissible scope of a prosecutor’s closing remarks. See Commonwealth v. Raymond, 424 Mass. 382, 389-390 (1997) (suffering of victim relevant to whether defendant’s actions constituted extreme atrocity or cruelty).
There is also no merit in the defendant’s claims that the prosecutor’s characterizations of the defendant “lur[ing]” the victim to the field, lying in wait for her because he “knew what was going to come,” misrepresent the evidence. The defendant told the police that he had telephoned the victim, asking her to meet him in the field, and that while he was waiting, he was lying down with his head propped up on his elbows. There was no error.
The defendant challenges the prosecutor’s statement that “[the defendant] gets arrested for [an altercation with the police]. It’s important. It’s important because later on when he’s telling everybody about why he’s running, he’s suggesting that somehow it has to do with the police. . . . Well, you heard from the clerk of the court. There was no warrant on him . . . . There was no process issued for him after February 25th of 1986.” The defendant argues there is another interpretation of the evidence, namely, that the police were “out to get him.” Because of this alternate interpretation, he argues, the prosecutor’s closing remarks were in error. We disagree. Here, the prosecutor recounted the testimony of the victim’s sister that the defendant arrived at her house and stated that “the cops [were] after [him],” even before the victim’s sister knew her sister had disappeared, indicating consciousness of guilt. It is the jury’s duty to determine “where the truth lies,” Commonwealth v. Lao, 443 Mass. 770, 779 (2005), and the prosecutor’s statement was not error.
The defendant also challenges the prosecutor’s statement that the defendant dragged the victim’s body to the culvert while it was still daylight. A prosecutor may argue forcefully “for a conviction based on the evidence and on inferences that may reasonably be drawn from the evidence.” Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Based on the evidence of the victim’s sneakers and socks discovered in the culvert, the jury could have reasonably inferred that the defendant moved the victim to the culvert to hide her, particularly because the victim had met the defendant around noon.
Next, the defendant claims that the prosecutor disparaged the defense’s argument and appealed to the jury’s emotions when he stated, “Sexual assault? What’s the evidence of that? . . . Some weird crazy guy pops in that day, kills her, and then, okay, presumably leaves the body. Why take it ten miles? . . . Who says later on he made her disappear? Who says that? This unknown crazy rapist that’s running around?” We presume the jury recognize the prosecutor’s role as an advocate, not a witness. Commonwealth v. Mitchell, 428 Mass. 852, 857 (1999). The prosecutor’s statement responds to defense counsel’s suggestion that the victim had been sexually assaulted and killed by someone other than the defendant. He referenced the defendant’s admission that he threw the victim in a “bottomless pit,” reasonably inferred as the quarry in Dartmouth where the victim’s body was found. Even if the remarks were embellishment, they were merely “excusable hyperbole” in light of the entire argument and do not provide grounds for reversal. See Commonwealth v. Sanna, 424 Mass. 92, 107 (1997).
The defendant objects to the prosecutor’s statement, “You need to consider all of the evidence, the evidence, not the supposition. Did you hear any evidence about needing a permit to run a truck up and down [Route] 195 on Easter Sunday? So why are we hearing that? That’s not evidence.” The defendant argues that the prosecutor’s remarks were not based on evidence. Here, the prosecutor references the testimony of the witness who drove the defendant to the quarry on March 30, 1986 (Easter Sunday), with the braided rug in the back of the truck. The witness testified that while he and the defendant were driving to the quarry, they saw a commercial vehicle on the highway. During cross-examination, defense counsel elicited testimony from a police officer that one would need a permit to operate a commercial vehicle before 6 P.M. on a holiday such as Easter. The defendant suggests that the witness’s credibility was at issue because the witness testified that he saw a commercial truck on the highway on a day when that truck would need a permit to operate. “Evaluations of credibility are. . . within the exclusive province of the trier of fact.” Commonwealth v. Bohannon, 376 Mass. 90, 94 (1978), S.C., 385 Mass. 733 (1982). When the prosecutor told the jury, “That’s not evidence,” he may have referred to evidence proving or disproving the defendant’s guilt. The prosecutor’s remarks are based in evidence, and there was no error.
Finally, the defendant objects to the prosecutor’s remarks concerning the white pullover sweatshirt recovered in a wooded area similar to the one the victim wore on the day of her disappearance: “That coat. Consider this. That got stuffed, buried somewhere. There’s dirt on it. Somebody knew the significance to this case, the same way [a witness] when she saw it knew it, and somebody didn’t want to be involved, meaning call up the police and say . . . ‘I just found a coat here,’ but they wanted it to be found.” The defendant argues that this statement intimates that the defendant “stuffed” the sweatshirt somewhere. However, regarding the phrase “got stuffed, buried somewhere,” the prosecutor referred to one witness’s testimony that the sweatshirt was found in an open area where it could be seen easily. The evidence indicates that the witness would have found it earlier had the sweatshirt been visible, so an inference that the sweatshirt was hidden, or “stuffed” somewhere, is reasonable. Second, the prosecutor’s remarks concerning the dirt on the sweatshirt is a reasonable inference based on the sweatshirt itself, which was in evidence. These statements do not constitute error.
5. Instruction on “dangerous weapon.” During his instruction to the jury on the Commonwealth’s burden to prove the elements of the crime beyond a reasonable doubt, the judge stated:
“In relation to malice, follow this instruction as to the use of a dangerous weapon. As a general rule, you the jury are permitted, but not required, to infer that a person who intentionally uses a dangerous weapon on another human being is acting with malice. A dangerous weapon is an item which is capable of causing serious injury or death. Excluded from the definition of a dangerous weapon is any part of the human body, such as a hand, a foot, or any other part of the body.”
The defendant contends that the judge’s charge was error because, in essence, it allowed the jury to conclude that the defendant used a weapon. He argues that the prejudice was magnified because of the circumstances of the victim’s death, the medical examiner’s improper testimony, and the jury’s sympathies, all of which led them to conclude that the defendant murdered the victim with malice.
Because the defendant did not object at trial, we review to determine whether there was a substantial likelihood of a miscarriage of justice. Commonwealth v. Dostie, 425 Mass. 372, 374 (1997). We determine whether there was error in a charge by “reading the charge as a whole, and not by scrutinizing bits and pieces removed from their context.” Commonwealth v. Cundriff, 382 Mass. 137, 153 (1980), cert. denied, 451 U.S. 973 (1981). Here, the judge’s instructions clearly told the jury that making inferences was permissible but not required. Given the evidence of the victim’s fractured skull, the medical examiner’s testimony that “considerable force” was needed to inflict that fracture, and that the fractures to the victim’s skull and jaw were on the same side of the body, this instruction was proper. Additionally, the jury could have inferred from the defendant’s request that his friend dispose of one specific cinder block approximately one month after the victim disappeared that the cinder block may have been the “considerable force” applied to the victim’s head. There was no error.
6. Cumulative effect of errors. The defendant argues that his conviction requires reversal because of the cumulative effect of the errors at trial. Given our conclusions, there was no risk that any error requires reversal. See Commonwealth v. Guy, 441 Mass. 96, 109 (2004).
7. Relief pursuant to G. L. c. 278, § 33E. We have reviewed the entire record as required by G. L. c. 278, § 33E, and we see no reason to reduce the murder conviction or order a new trial.
 The Commonwealth also had proceeded under a theory of deliberate premeditation, but the jury did not find the defendant guilty under that theory.
 The defendant and the victim frequently argued and had physical altercations.
 While walking to the culvert, the victim’s sister noticed footprints. One set of footprints had the imprint of a Nike brand sneaker, and the other set had a clover imprint similar to that of the defendant’s boots. The prints were side by side until one set ended. When the area was secured, however, the prints were not distinguishable.
 When police tested the stain for human blood in 1986, the result was positive, but when the stain was retested in 2007, the test for human blood was inconclusive. A State police criminologist testified that the negative results were unsurprising because blood decomposes over time. In 2007, a partial deoxyribonucleic acid (DNA) profile from saliva was taken from a stamp recovered from a letter the victim had sent to a friend, and compared with the sample from the jacket. This test showed that the DNA from the stain on the jacket matched the DNA on the stamp. One in 16,480 unrelated people in the Caucasian population would be expected to have the same partial profile as that on the stamp and the jacket. The statistical analysis of the DNA testing was presented to the jury. See Commonwealth v. Lanigan, 419 Mass. 15, 20 (1994) (evidence of DNA match “meaningless without evidence indicating the significance of the match”). The defendant does not contest the DNA evidence.
 Based on the victim’s dental records, a forensic odontologist identified the jaw and skull as those of the victim.
 The day of her disappearance, the victim was wearing a navy blue rugby shirt with a white collar and jogging pants.
 The medical examiner’s duties were made more difficult because of the decomposition of the victim’s body. Although his common practice is to examine the hyoid bone in the upper part of the neck to determine the presence or absence of trauma, such as injury caused by strangulation, the victim’s hyoid bone was not recovered from the quarry where the victim was found.
 When divers recovered a chair from the quarry in the general area where the victim’s body was found, the chair was partially intact, with the wood still hard to the touch.
 The judge properly instructed the jury on inferences. Prior to the presentation of evidence, the judge instructed the jury on circumstantial evidence and the need to make reasonable inferences based on the evidence. During the trial, the judge stated, “This case is going to go through a number of days, and you’re going to hear testimony from a lot of people. You’re going to see a lot of exhibits. And it’s at the end of the case that you look at any linkages, if there are linkages, and then I will instruct you on what I refer to as drawing reasonable inferences.” He also instructed the jury that an inference must be based in evidence that the jury believes, and that the inference must be “reasonable, and as such, not a guess.”
 The portion of the telephone call in the recording admitted at trial is as follows:
The caller: “All right. You got your jacket, and there’s some blood on it.”
The defendant: “Yeah.”
The caller: “Because the blood on the jacket is your blood. You licked the stamp. You mailed the letter.”
The defendant: “Yeah. Well, that’s what I’m thinking the same thing too. You know, something to that effect, you know.”
The caller: “And the blood on the jacket is your blood, and you licked the stamp and mailed it for her.”
The defendant: “It’s very possible.”
The caller: “And why the letter and the blood on the jacket? I’m like, oh my God, the blood on the jacket is his.”
The defendant: “Yeah, it probably freaking is, but I mean at this point, who knows?”
The caller: “I’m glad you had the jacket on you when you got in the car accident. You got hurt in the car accident, and it’s like that’s why it matches.”
The defendant: “I believe the blood that’s on my jacket is from before, a long time before she disappeared. A long time. This must be some detergent or something, some soap or something that’s on here. I don’t know. But I guarantee you I’m a hundred percent sure that the jacket’s been washed at least once. At least.”
The caller: “Yeah.”
The defendant: “And you know, it wasn’t after she disappeared because I didn’t have the jacket. They found it in Stevie’s garage.”
The caller: “Right, right, right.”
The defendant: “The whole thing is just [pause] I couldn’t have washed it because I had no place to live. Where did I wash it, you know? That’s my point there. You know what I mean? That’s why I’m . . . .”
The caller: [interjecting] “Yeah, what did you do, wash it and throw it back in the garage?”
The defendant: “Yeah, right. Exactly. Where did I wash it? I was living, you know, in people’s cellars and shit.”
 The jury could have also reasonably inferred hostility on the part of the defendant through testimony that the victim’s clothes were cut into pieces when the victim and the defendant lived together.
 The judge instructed the jury that they were “not required to draw such inferences, and . . . should not do so unless they appear to be reasonable in light of all the circumstances in the case.” His charge included at least three other instructions on making inferences.
 Throughout the trial and during jury instructions, the judge repeatedly instructed the jury to use intellect, not emotion, when evaluating the evidence and the arguments.
 Following his instructions on malice related to the theory of extreme atrocity or cruelty, the judge instructed the jury to follow the same malice instruction as to murder in the second degree, but did not repeat the instruction itself.