Commonwealth v. Fritz , 472 Mass. 341 ( 2015 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-07763
COMMONWEALTH vs. SHAWN T. FRITZ.
Suffolk. May 4, 2015. - July 29, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines,
JJ.
Homicide. Firearms. Constitutional Law, Public trial, Jury,
Conduct of government agents, Confrontation of witnesses.
Jury and Jurors. Evidence, Relevancy and materiality,
Motive, Admission by silence, Expert opinion, Consciousness
of guilt, Cross-examination, Credibility of witness.
Witness, Expert, Credibility. Practice, Criminal, Capital
case, New trial, Severance, Public trial, Jury and jurors,
Empanelment of jury, Challenge to jurors, Conduct of
government agents, Admissions and confessions,
Confrontation of witnesses, Argument by prosecutor,
Instructions to jury. Escape.
Indictments found and returned in the Superior Court
Department on December 19, 1994.
The cases were tried before Vieri Volterra, J.; a motion
for a new trial, filed on November 19, 2009, was considered by
Mitchell H. Kaplan, J.; and a motion for a new trial, filed on
December 9, 2011, was heard by Linda E. Giles, J.
Rosemary Curran Scapicchio for the defendant.
Paul B. Linn, Assistant District Attorney, for the
Commonwealth.
2
HINES, J. On October 24, 1996, a jury convicted the
defendant, Shawn T. Fritz, of murder in the first degree of
Albert Tyler Titcomb, III, on the theories of deliberate
premeditation and extreme atrocity or cruelty, and of unlawful
possession of a firearm.1 The defendant's appeal from his
convictions was consolidated with his appeals from the denial of
his first two motions for a new trial.2 He raises a plethora of
appellate issues and also asks that we exercise our power under
G. L. c. 278, § 33E, to grant him a new trial or to reduce the
verdict.3 We affirm his convictions and the orders denying his
motions for a new trial, and discern no basis to reduce the
verdict or to order a new trial.
1
The defendant was tried together with Timothy McLaughlin
and Frederick Stearns. The trial judge granted McLaughlin's and
Stearns's motions for a required finding of not guilty after the
close of the Commonwealth's case.
2
The defendant is represented on appeal by counsel who had
represented him in connection with his new trial motions. The
trial judge did not decide those motions.
3
The defendant submitted two appellate briefs with an
unwieldy total of 142 pages, in violation of Mass. R. A. P. 16
(h), as amended, 438 Mass. 1601 (2003); one brief also is in
apparent violation of Mass. R. A. P. 20 (a), as amended, 456
Mass. 1601 (2010). Together, the briefs assert approximately
twenty-four different principal claims of error, some of which
are barely comprehensible and lack compliance with our rule
governing appropriate appellate argument. Mass. R. A. P. 16 (a)
(4), as amended, 367 Mass. 921 (1975). See Kellogg v. Board of
Registration in Med., 461 Mass. 1001, 1003 (2011).
3
Background. We summarize the facts the jury could have
found. The victim was shot in the head five times at close
range in the hallway of 17 Carney Court, an apartment building
in the Charlestown section of Boston, at approximately 4 P.M. on
November 22, 1994. He died as a result of his wounds. The
murder weapon was never recovered. Five discharged .32 caliber
automatic cartridge casings and two spent .32 caliber bullets
were recovered in the vicinity of the victim's body. Three
spent bullets and one fragment of a spent bullet were recovered
from the victim's body during his autopsy. A firearms
identification expert testified regarding his opinion that,
based on his microscopic examination, all of the discharged
cartridge casings and spent bullets had been fired from the same
weapon.
The victim had a lengthy history of drug addiction. He
owed the defendant fifty dollars. When unable to pay, the
victim fabricated a story that he had been arrested and had used
the fifty dollars to post bail. This story was reported to the
defendant by the victim's cousin and again by the victim on the
morning of the shooting, but the defendant did not believe it.
The victim spent much of the day on November 22 with his
friend, William Barends, in Charlestown. The two smoked
marijuana with other acquaintances and consumed other drugs.
The medical examiner who conducted the victim's autopsy
4
testified that at the time of the victim's death, he had a large
amount of morphine in his blood, which was the result of
ingesting either morphine or heroin.
A woman who lived across from 17 Carney Court testified
that she saw the defendant, Barends, the victim, and others near
her apartment on the afternoon of November 22; heard shots fired
at approximately 3:50 P.M.; saw the defendant walk out of the
entryway of 17 Carney Court; and then saw him run toward Bunker
Hill Street. When she walked to the hallway of 17 Carney Court,
she discovered the victim lying on his stomach. A boy testified
that on November 22, when he was fourteen years of age, he was
waiting for friends near 17 Carney Court; saw four "kids" enter
the hallway at 17 Carney Court and close the door; heard shots;
and saw one of the "kids," whom he later identified as the
defendant from a photographic array, then run from the hallway.
Mary Johnson, the mother of one of the victim's children,
testified that the defendant had admitted to her that he had
been present near the scene of the shooting on the day the
victim was killed and that the victim owed him money, but he
denied committing the murder.
The Commonwealth also called Mark Duggan, who testified as
follows. A young woman Duggan had been dating at the time lived
across from 17 Carney Court, and on November 22, he had been
working on an automobile in a lot behind that address. Duggan
5
saw the defendant, the victim, Barends, and two others in the
area on the afternoon of the shooting and observed that the
victim was unsteady on his feet. Later, as Duggan was leaving
in a taxicab, he observed this group, including the victim,
Barends, and the defendant, enter the building across the way
(17 Carney Court). Subsequent to the victim's death, in 1995,
while Duggan was being detained after an arrest on an unrelated
matter, he spoke with the defendant, who also was being
detained. The defendant stated that he "didn't understand why
everyone was coming down on [him]" and that "[h]e wasn't the
only one there that day."
Barends provided the testimony that most directly tied the
defendant to the shooting. After describing the activities in
which he and the victim had engaged in on November 22, Barends
testified that the defendant suggested to the group that had
formed, which included the victim, Frederick Stearns, and
Timothy McLaughlin (see note 1, supra) that they smoke some
"angel dust" together. Although Barends told the defendant that
the victim did not "need[] any more of that," the defendant and
the victim went into the hallway of 17 Carney Court presumably
to smoke. Barends then followed the two inside. While Barends
was near the door to the exterior, he heard gun shots and turned
to see the defendant pointing a gun at the victim. Barends then
ran from the hallway. About ten minutes later, the defendant
6
approached Barends, who was visibly shaken, gave him a hug, and
stated, "How do you think I feel? I just took a father from his
son."
The defendant attempted to escape while awaiting trial. In
connection with a disciplinary hearing following the escape
attempt, the defendant stated that he was only twenty-two years
of age; was facing life in prison; and, were he to have the
opportunity, he would try to escape again.
The defendant did not testify, and he did not present any
evidence. Rather, his defense counsel attacked the credibility
of Barends and Duggan, pointing out during cross-examination
that they were criminals who had received benefits from the
prosecutors in this case and in Federal cases, including
placement in the witness protection program and payment of
living expenses.
Discussion. 1. Pretrial issues. a. Severance. Contrary
to the defendant's contention, there was no abuse of discretion
in the judge's declining to sever the defendant's case from
those of McLaughlin and Stearns. There was no showing that the
defenses at trial were mutually antagonistic and irreconcilable.
See Commonwealth v. Siny Van Tran, 460 Mass. 535, 543 (2011).
b. Public trial. In 2011, the defendant filed a second
motion for a new trial claiming a violation of his right to a
public trial under the Fifth, Sixth, and Fourteenth Amendments
7
to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights when court officers excluded
the public and his family from the court room during jury
empanelment. A Superior Court judge (who was not the trial
judge and was not the judge who decided the first motion for a
new trial) conducted an evidentiary hearing at which the
defendant's trial counsel and sister testified, and also a
newspaper reporter. In her written memorandum of decision and
order, the judge made the following findings of fact.
Jury empanelment in this case took place during the course
of two days, and the court room was closed during at least the
first day of empanelment. On the first day of empanelment,
court officers asked everyone, including the defendant's sister
and mother, to leave, and they were not permitted to reenter.
At the time of the defendant's trial in 1996, it was a
well-established custom and practice at the Superior Court in
Suffolk County to exclude members of the public, including
members of the media, from the court room during empanelment.
Court officers would clear the court room of the public before
the venire was escorted in because of space constraints. A
court officer would be posted at the court room door, which bore
a sign reading, "Jury Selection -- Do Not Enter," during jury
empanelment.
8
The defendant's trial counsel, who had many years of
experience and was known by the judge to be "a most capable,
skilled, and reputable attorney," had no specific memory of a
court room closure in the defendant's trial. The defendant's
trial counsel would not have had any tactical reason to ask that
the defendant's family members be excluded from the court room.
His focus would have been on the various aspects of the jury
selection process. He would not have objected to the practice
of clearing the court room for jury empanelment because he was
not aware that it raised an issue of constitutional dimension
until the publication of Commonwealth v. Cohen (No. 1), 456
Mass. 94 (2010). As such, defense counsel did not think to
discuss the matter with the defendant or his family.
Regardless, it was not defense counsel's practice even to have
the defendant at sidebar during empanelment.
The judge correctly concluded that a procedural waiver
occurred in this case and that the case stands on all fours with
our decisions in Commonwealth v. Morganti, 467 Mass. 96, cert.
denied, 135 S. Ct. 356 (2014), and Commonwealth v. Alebord, 467
Mass. 106, cert. denied, 134 S. Ct. 2830 (2014). The lack of
defense counsel's specific memory on what occurred during the
jury empanelment in the defendant's case is not significant, as
he testified to knowledge of the general practice at that time.
See Commonwealth v. Jackson, 471 Mass. 262, 268-269 (2015)
9
(finding procedural waiver despite fact that neither defendant
nor defense counsel had been aware of closure). Further, any
knowledge would not have altered his practice, as Cohen (No. 1),
supra, had not yet been decided. Thus, in the circumstances,
defense counsel was not ineffective for failing to object to the
closure. See Alebord, supra at 114; Morganti, supra at 104-105.
Last, we conclude that no prejudice has been shown to have
arisen from the closure as no "effect on the judgment" has been
shown to have occurred. See Commonwealth v. LaChance, 469 Mass.
854, 858-859 (2014). Cf. Commonwealth v. Wall, 469 Mass. 652,
673 (2014); Commonwealth v. Dyer, 460 Mass. 728, 735 n.7 (2011),
cert. denied, 132 S. Ct. 2693 (2012).
c. Exclusion of defendant at sidebar and in off-the-record
discussions between judge and prospective jurors during jury
empanelment. The record indicates that the defendant, through
counsel, waived his right to be present at sidebar discussions
during jury empanelment. The defendant's express consent or
personal waiver was not required. See Commonwealth v. Myers, 82
Mass. App. Ct. 172, 181-182 (2012) (personal waiver of defendant
only required for "very short list of rights," including whether
to plead guilty, waive jury trial, testify on own behalf, take
an appeal, and waive right to counsel). The defendant's
additional claim, concerning his absence from certain off-the-
record conversations between the judge and several prospective
10
jurors, is waived as he made no request to be present, the judge
did not take steps to exclude him, and defense counsel never
objected to his absence. See Commonwealth v. Dyer, 460 Mass.
728, 738 (2011), cert. denied, 132 S. Ct. 2693 (2012). Last, to
the extent that any error occurred from these particular
absences, the defendant has not shown that a substantial
likelihood of a miscarriage of justice resulted.
d. Peremptory challenges. There is no merit to the
defendant's argument that he should be afforded a new trial
because his Federal and State constitutional rights were
violated when the trial judge refused to permit peremptory
challenges of three African-American jurors. "Article 12 of the
Massachusetts Declaration of Rights proscribes the use of
peremptory challenges 'to exclude prospective jurors solely by
virtue of their membership in, or affiliation with, particular,
defined groupings in the community.'" Commonwealth v. Smith,
450 Mass. 395, 405, cert. denied, 555 U.S. 893 (2008), quoting
Commonwealth v. Soares, 377 Mass. 461, 486, cert. denied, 444
U.S. 881 (1979).
We agree with the motion judge who denied the defendant's
motion for a new trial on this ground that the record supports
the trial judge's determination that a pattern of purposeful
exclusion of members of a discrete group had been established.
See Commonwealth v. Curtiss, 424 Mass. 78, 80 (1997). Although
11
the trial judge did not make a specific finding whether the
reasons advanced by the exercising party were "bona fide or a
mere sham," id. at 81, the judge's statements (which clearly
indicated that he was rejecting the asserted reasons)
demonstrate that he fulfilled his responsibility to determine
the reasonableness of the basis given for the challenge and the
actual motivation in asserting it. The record supports our
conclusion that the trial judge acted within his discretion in
determining the challenges to be race-based and in deciding not
to allow the challenges. See id. at 82. Last, contrary to the
defendant's contentions, "[a] judge may, of course, raise the
issue of a Soares violation sua sponte." Smith, supra at 406.
2. Trial errors. a. Evidentiary errors. "Generally,
determinations as to the admissibility of evidence lie 'within
the sound discretion of the trial judge.'" Commonwealth v.
Bins, 465 Mass. 348, 364 (2013), quoting Commonwealth v. Jones,
464 Mass. 16, 19-20 (2012).
i. Admission of defendant's postindictment statements made
to Duggan. The defendant argues that his State and Federal
constitutional rights were violated by the admission of his
postindictment statements to Duggan, who was acting as a
jailhouse informant and had deliberately elicited the
statements. The defendant's claim fails because on this record,
he did not demonstrate the existence of an agency relationship
12
between Duggan and the government at the time of the challenged
statement. See Commonwealth v. Murphy, 448 Mass. 452, 459, 467
(2007); Commonwealth v. Rancourt, 399 Mass. 269, 274 (1987). We
add that the statements at issue only placed the defendant near
the location where the victim had been killed, which was
cumulative of other evidence, including the defendant's own
statement to police and that of other witnesses in the area.
Thus, even the improper admission of the statements would not
have required a new trial.
ii. Admission of Johnson's testimony concerning statements
made by the defendant. Much of the challenged testimony of
Johnson was properly admitted with a contemporaneous limiting
instruction as bearing on the defendant's motive for killing the
victim. See Commonwealth v. Diaz, 422 Mass. 269, 273 (1996).
Johnson's testimony concerning the defendant's silence after she
asked him why, if he was innocent, he did not go to the police
falls into the category of an admission by the defendant. See
Commonwealth v. Crayton, 470 Mass. 228, 247 n.23 (2014) (silence
of defendant in response to statement of another may be
admissible as admission of defendant); Commonwealth v. Babbitt,
430 Mass. 700, 705-706 (2000) (adoptive admissions include
statements to which defendant responds by silence). There was
no error in the admission of the challenged testimony.
13
iii. Admission of expert firearms identification
testimony. As an initial matter, defense counsel did not
challenge the expert qualifications of the firearms
identification witness, Boston police Officer John Seay, at
trial. Nor did the defendant request a hearing pursuant to
Commonwealth v. Lanigan, 419 Mass. 15, 24 (1994), and Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), to establish the
reliability of the methodology underlying Seay's testimony. The
defendant mounted no such challenge to the witness's conclusion,
based on his microscopic examination, that all the spent shell
casings and bullets recovered had been fired from the same
weapon. These issues (recast as claims for ineffective
assistance of counsel), thus, have been waived. Fishman v.
Brooks, 396 Mass. 643, 649 (1986). In any event, we are
satisfied, based on the record indicating Seay's experience in
firearms identification, including examining 2,000 or more
firearms over the course of approximately three years, that the
trial judge acted within his discretion in determining that Seay
satisfied the foundational requirements to qualify as an expert.
Turning to the substance of Seays's testimony, his
testimony and conclusion were of a type that this court has long
found admissible and for which a Daubert-Lanigan hearing is not
required. Commonwealth v. Pytou Heang, 458 Mass. 827, 845-846
(2011). Last, on the record before us no substantial likelihood
14
of a miscarriage of justice could have occurred from the
admission of Seay's testimony. Seay only provided his "opinion"
at trial and did not express it with a reasonable degree of
scientific certainty. Id. at 849. Further, no weapon was
recovered, and the defense did not challenge the theory that
there had been a single shooter at trial; rather, he argued that
the defendant had not been the shooter. Moreover, the judge
correctly instructed the jury that they could accept or reject
an expert's opinion and give an expert's testimony as much
weight as they decided it deserved.
iv. Admission of medical examiner's testimony and death
certificate. Assuming without deciding that, in this case and
on these charges, the content of the laboratory report
concerning the victim's blood alcohol level should have been
presented by the author of the report, see Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 311 (2009), and not by the medical
examiner, we conclude that its erroneous admission was harmless
beyond a reasonable doubt. See Commonwealth v. Vasquez, 456
Mass. 350, 352 (2010). The evidence pertained to the victim and
not to the defendant, went unchallenged during the medical
examiner's cross-examination, and was cumulative of other
witness testimony concerning the condition of the victim.
Where the manner of death was properly redacted, the death
certificate was properly admitted. Commonwealth v. Wallace, 460
15
Mass. 118, 127 (2011). Contrary to the defendant's contention,
no violation of the confrontation clause occurred in its
admission because the medical examiner who testified at trial
concerning its content was the person who had prepared the death
certificate and had performed the victim's autopsy. Cf.
Commonwealth v. Almonte, 465 Mass. 224, 242 n.19 (2013).
v. Evidence of the defendant's attempted escape. On the
record before us we reject the defendant's argument that,
because it was unduly prejudicial, evidence of the defendant's
attempted escape from jail should not have been admitted. See
Commonwealth v. Oeun Lam, 420 Mass. 615, 617 (1995) (evidence of
attempted escape admissible to prove consciousness of guilt);
Commonwealth v. Roberts, 407 Mass. 731, 736 (1990) (whether
inflammatory nature of evidence outweighs probative value is
matter within discretion of trial judge).
b. Restrictions during cross-examination. The defendant
argues that he was unduly prejudiced by the trial judge's
improper restriction of his cross-examination of Duggan and
Barends. The judge who denied his motion for a new trial on
this basis rejected the claim, pointing out that the record
established a meaningful opportunity to establish bias on the
part of these witnesses. We agree. The trial judge did not
abuse his discretion in determining the proper scope of cross-
16
examination. See Commonwealth v. Crouse, 447 Mass. 558, 572
(2006).
c. Improper rehabilitation or bolstering witness
credibility. The defendant argues for the first time on appeal
that, in some instances over objection at trial, the judge
impermissibly allowed the Commonwealth to bolster the
credibility of certain witnesses with prior consistent
statements and improperly questioned witnesses concerning their
fear of the defendant. The defendant's contentions lack merit.
In the circumstances here, where defense counsel challenged the
witnesses' delayed reporting in the opening statements, no
prejudice arose when the prosecutor elicited the circumstances
of that disclosure during direct examination. See Commonwealth
v. Hall, 66 Mass. App. Ct. 390, 396 (2006). Nor, in the
circumstances, did the judge abuse his discretion in permitting
one witness to testify that she had not gone to police initially
because she was afraid where she did not attribute that fear to
the defendant. See Commonwealth v. Santiago, 458 Mass. 405,
411-412 (2010); Commonwealth v. Fitzgerald, 376 Mass. 402, 412
(1978).
d. Prosecutor's closing argument. The defendant
challenges numerous statements in the prosecutor's closing
argument. Regarding those that were the subject of an
objection, we review for prejudicial error. Commonwealth v.
17
Andrade, 468 Mass. 543, 551 (2014). Where no objection was
made, we "examine whether any of the statements were improper
and, if so, whether the impropriety created a substantial
likelihood of a miscarriage of justice." Commonwealth v.
Gentile, 437 Mass. 569, 579-580 (2002). "Remarks made during
closing arguments are considered in context of the whole
argument, the evidence admitted at trial, and the judge's
instructions to the jury." Commonwealth v. Whitman, 453 Mass.
331, 343 (2009).
We need not address each of the criticized remarks. We
conclude that, for the most part, the prosecutor's argument was
based on the evidence and fair inferences from the evidence, or
was a proper response to the argument of defense counsel. On
the one occasion in the beginning of her closing argument when
the prosecutor improperly attacked defense counsel, the judge
immediately addressed the error by sustaining defense counsel's
objection and instructing the jury to disregard the argument,
thus effectively mitigating any potential prejudice.4 In
4
The error was not compounded by improper burden-shifting
in the prosecutor's opening statement. In response to the
prosecutor's statement that the shooting had been an execution
without justification, the judge gave a curative instruction at
the end of her opening explaining that the Commonwealth bears
the burden of proving a lack of justification for the killing.
No reversible error occurred, in isolation or in combination
with the challenged remarks of the prosecutor's closing
argument.
18
addition, the judge correctly instructed the jury that the
closing arguments of counsel are not evidence, and emphasized
that the jury were to decide the case on the evidence alone. No
prejudicial error resulted. Even if the prosecutor crossed the
line with some improper references to fear on the part of three
of the witnesses, in view of the evidence at trial, defense
counsel's attack of the credibility of these witnesses, and the
judge's instructions to the jury, and "because the jury are to
be given a measure of sophistication in sorting out excessive
claims made in closing argument," we conclude that any missteps
made by the prosecutor did not create a substantial likelihood
of a miscarriage of justice. See Commonwealth v. Frank, 433
Mass. 185, 196 (2001). We conclude that no prejudicial error or
substantial likelihood of a miscarriage of justice arose from
any statements made in the prosecutor's closing argument.
e. Jury instructions. i. Failure to instruct on
voluntary intoxication. Because the evidence,5 viewed in a light
most favorable to the defendant, see Commonwealth v. Little, 431
Mass. 782, 783 (2000), did not show "debilitating intoxication"
that could support a reasonable doubt as to whether the
defendant was capable of forming the requisite criminal intent,
see Commonwealth v. James, 424 Mass. 770, 789 (1997), the
5
Contrary to the defendant's contention, it was the victim,
not the defendant, with whom Barends had smoked a "joint"
earlier in the day on November 22.
19
evidence did not warrant a voluntary intoxication instruction
and the judge did not commit error by declining to give it.
ii. Judge's slip of the tongue. When viewed in context of
the entire charge, no substantial likelihood of a miscarriage of
justice resulted when the judge erroneously instructed:
"For any killing to be either first or second degree
murder, it must be an unlawful killing committed with
malice aforethought. If the Commonwealth has not proven to
you beyond a reasonable doubt that the defendant unlawfully
killed the victim with malice aforethought, you, the jury,
must find the defendant guilty of both first and second
degree murder" (emphasis added).
Obviously, the judge inadvertently omitted "not" before
"guilty." Where counsel did not object, we question whether he
recognized it as an obvious slip of the tongue that did not
warrant an immediate correction. Regardless, in the
circumstances, no reasonable juror could have failed to realize
that it was a mere slip of the tongue. See Commonwealth v.
Silva-Santiago, 453 Mass. 782, 805 (2009).
iii. Definition of malice. The defendant's challenge to
the judge's definition of malice was rejected in Commonwealth v.
Simpson, 434 Mass. 570, 588-589 (2001). The record here does
not require a different result.
iv. Failure to instruct pursuant to DiGiambattista. The
defendant's trial took place in 1996, and an instruction
pursuant to Commonwealth v. DiGiambattista, 442 Mass. 423
(2004), was not then required. See Commonwealth v. Dagley, 442
20
Mass. 713, 721-722 (2004), cert. denied, 544 U.S. 930 (2005).
There was no error.
v. Disbelief of witnesses' testimony. Contrary to the
defendant's argument, there was no error in an instruction that
he contends disallowed the jury from disbelieving witnesses.
See Commonwealth v. Gonzalez, 67 Mass. App. Ct. 877, 881-882
(2006).
vi. Circumstantial evidence. The defendant challenges,
for the first time on appeal, one sentence in the judge's
instructions pertaining to circumstantial evidence, namely,
"[t]he Commonwealth need not exclude every reasonable hypothesis
of innocence provided that the evidence as a whole supports a
conclusion of guilt beyond a reasonable doubt." The instruction
was a correct statement of law and, when viewed in context of
the charge as a whole, did not create jury confusion. See
Commonwealth v. Platt, 440 Mass. 396, 401 (2003); Commonwealth
v. Merola, 405 Mass. 529, 533-534 (1989).
vii. Witness's prior inconsistent statement. On the
record before us, no prejudicial error arose from the judge's
decision not to instruct that the jury could consider prior
inconsistent statements for their substantive value. See
Commonwealth v. Swafford, 441 Mass. 329, 338 n.11 (2004).
viii. Extreme atrocity or cruelty. The judge did not
commit error by instructing that, in deciding whether the
21
defendant acted with extreme atrocity or cruelty, they (the
jury) served as "the representatives of the conscience of the
community." Commonwealth v. Barros, 425 Mass. 572, 585-586
(1997), and cases cited.
ix. Inadequacy of police investigation. The defendant's
claim concerning the decision not to give an instruction
pursuant to Commonwealth v. Bowden, 379 Mass. 472, 485-486
(1980), has no merit. See Commonwealth v. Lao, 460 Mass. 12, 23
(2011). On this record, there was no error.
f. Sleeping juror. Where the trial judge found that he
had been watching the jury and did not see any jurors sleeping,
he did not abuse his discretion in declining to conduct a voir
dire to determine whether, as defense counsel suspected, one
particular juror had been sleeping. See Commonwealth v.
Beneche, 458 Mass. 61, 77-78 (2010); Commonwealth v. Morales,
453 Mass. 40, 47 (2009).
3. New trial motion predicated on prosecutorial
misconduct. a. Withholding exculpatory evidence. The record
does not support the defendant's claim that he be afforded a new
trial on the ground that the prosecutor prejudicially withheld
material, exculpatory evidence. The order denying the
defendant's motion for a new trial on this ground sets forth
much of the relevant facts, with the record providing the
remaining information. As an initial matter, not all of the
22
"evidence" was material or exculpatory, or even withheld. Even
assuming the contrary, we see no basis for concluding that the
defendant's rights were irremediably prejudiced by such failure
to disclose. See Commonwealth v. Caillot, 454 Mass. 245, 261-
262 (2009), cert. denied, 559 U.S. 948 (2010).
b. Presentation of false or materially misleading evidence
concerning Duggan's testimony about when he dated a prior girl
friend. The record does not support the defendant's claim that
he is entitled to a new trial because his convictions were
obtained by the presentation of testimony of Duggan that the
prosecution knew to be false. "Simply because a witness alters
some portion of his testimony at the time of trial is not a
sufficient reason to conclude that the new testimony is false,
or that the Commonwealth knew or had reason to know that it was
false." Commonwealth v. McLeod, 394 Mass. 727, 743, cert.
denied, 474 U.S. 919 (1985). "Presentation of a witness who
recants or contradicts his prior testimony is not to be confused
with eliciting perjury. It was for the jury to decide whether
or not to credit the witness." Id. at 743-744, quoting United
States v. Holladay, 566 F.2d 1018, 1019 (5th Cir.), cert.
denied, 439 U.S. 831 (1978). The facts of this case fall into
this latter category.
Conclusion. Based on the foregoing, we discern neither
error nor abuse of discretion in the denial of the defendant's
23
motions for a new trial. We thus affirm the orders denying his
motions for a new trial and affirm his convictions. There is no
basis to reduce the verdict or to order a new trial pursuant to
G. L. c. 278, § 33E.
So ordered.