Commonwealth v. Bresilla , 470 Mass. 422 ( 2015 )

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SJC-10837
COMMONWEALTH vs. ELYSEE BRESILLA.
Middlesex. October 10, 2014. - January 16, 2015.
Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.
Homicide. Firearms. Evidence, Firearm, Identification,
Relevancy and materiality. Identification. Constitutional
Law, Identification. Due Process of Law, Identification of
inanimate object. Practice, Criminal, Capital case, Motion
to suppress, Identification of defendant in courtroom,
Conduct of prosecutor, Argument by prosecutor, Request for
jury instructions, New trial.
Indictments found and returned in the Superior Court
Department on June 6, 2006.
Pretrial motions to suppress evidence were heard by Diane
M. Kottmyer, J; the cases were tried before Sandra L. Hamlin,
J., and a motion for a new trial, filed on August 12, 2011, was
considered by her.
James W. Rosseel for the defendant.
Fawn D. Balliro Andersen, Assistant District Attorney
(Nicole L. Allain, Assistant District Attorney, with her) for
the Commonwealth.
CORDY, J. In the early morning hours of March 28, 2006,
Doowensky Nazaire was shot and killed in front of a night club
2
in Cambridge. Although the firearm was never recovered, the
evidence implicating the defendant, Elysee Bresilla, as the
shooter was substantial. Within minutes of the shooting,
Cambridge police officers found the defendant crouching in the
yard of a nearby residence. Within an hour, the police had
performed a showup with a witness who identified the defendant
as the shooter. Two eyewitnesses who knew the defendant came
forward and identified him as the shooter. The defendant's
hands tested positive for gunshot primer residue. In the path
of flight described by numerous witnesses, the police found the
defendant's discarded brown leather jacket. On the night of the
shooting, two witnesses identified that jacket as the one worn
by the shooter.
The defendant was indicted on charges of murder in the
first degree under theories of premeditation and extreme
atrocity or cruelty, and possession of a firearm without a
firearm identification (FID) card, in violation of G. L. c. 269,
§ 10 (h) (1). The defendant filed motions to suppress the
identifications of himself and his jacket, which motions were
denied. At trial, the defendant primarily challenged the
identification evidence and the procedures employed by the
Cambridge police in obtaining that evidence. A jury convicted
the defendant of murder in the first degree on a theory of
3
deliberate premeditation, and he was sentenced to a mandatory
term of life without the possibility of parole.
On appeal, the defendant raises numerous claims of error,
including a contention that the Cambridge police should have
presented witnesses with a "jacket lineup." We reject that
contention and find no reversible error arising from the
defendant's other claims. Although evidence of inappropriate
conduct by some of the investigating police officers was brought
out during the course of the proceedings, we conclude that there
is an insufficient basis for exercising our authority under
G. L. c. 278, § 33E, to order a new trial. Accordingly, we
affirm the defendant's conviction.
1. Background. a. The murder. We recite the facts in
the record, reserving certain details for our analysis of the
issues raised on appeal. See Commonwealth v. Raposa, 440 Mass.
684, 686 (2004). On the evening of March 27, 2006, the victim,
Francillon Dabady, and Mackenson Mathurin went to a night club
in Cambridge. All three were acquainted with the defendant:
the victim was the defendant's former roommate; Dabady had met
the defendant at the victim's home; and Mathurin attended grade
school with the defendant and, on the night of the shooting,
conversed with him inside the club. As the club closed, the
victim, Dabady, and Mathurin, along with many other patrons,
filed out onto Massachusetts Avenue.
4
On leaving the club, Dabady and Mathurin observed a man
(whom they later identified as the defendant), holding a
semiautomatic firearm, cross the street toward the crowd, aim
the weapon at the victim, and fire multiple shots. One bullet
struck the victim and sent him to the ground. Then, standing
almost above the victim, the man shot him a second time before
fleeing in the direction of a nearby video store. The Cambridge
police were promptly notified of the shooting and, within one
minute, Officer Mark McHale arrived at the night club.
Officer McHale was approached by a crowd of people shouting
descriptions of the shooter. From the noise, Officer McHale
distilled a description of a black male wearing a white T-shirt
and baseball hat, which he then broadcast across Cambridge
police radio. Sergeant John Gardner heard the broadcast and,
within minutes, observed a black male fitting the description
running down Essex Street, a few blocks away from the site of
the shooting. Less than four minutes after being alerted to the
shooting, Cambridge police officers found the defendant, clad in
a white T-shirt and white baseball hat with dark pinstripes,
crouching among the shrubs of a yard on Essex Street.
Meanwhile, Officer McHale was speaking with a witness named
Daniel Jacobs. Jacobs claimed to have had a clear view of the
shooter. After learning that a potential suspect had been
apprehended, Officer McHale asked Jacobs if he would be willing
5
to observe a person who had been stopped in the area. Jacobs
agreed, confirmed his understanding of the precautionary
advisements given by Officer McHale, and traveled to Essex
Street in Officer McHale's police cruiser. Although Officer
McHale observed alcohol on Jacobs's breath, he determined that
Jacobs was capable of providing an accurate statement and
performing a reliable identification. On viewing the defendant,
who was surrounded by police officers but did not appear to be
handcuffed, Jacobs stated, "That's the guy."
As these events unfolded, other Cambridge police officers
scoured the area in search of other evidence of the murder. In
the parking lot behind the video store, which was located
between the night club and the yard where the defendant was
apprehended, the police found a multicolored button-up shirt and
a light brown leather jacket with a fur collar and fur cuffs.
One of the officers broadcast a description of the jacket over
the police radio. The defendant overheard the broadcast and
stated, "That's my jacket."
As the police secured the scene around the jacket, two
other witnesses to the shooting, Sonny Bhatia and Fabio Mendes,
were walking to their automobile, which was parked in the same
parking lot. Bhatia and Mendes saw the jacket, and each
identified it as the one worn by the shooter. David Vicini, the
doorman at a nearby restaurant, reported seeing a man wearing a
6
light brown jacket with a fur collar standing over the victim,
shooting. Other witnesses variously recalled seeing a brown
leather jacket, a black leather jacket, a "bubble" jacket, or no
jacket at all. Despite these inconsistencies, however, most of
the descriptions were generally consistent with the defendant
and the articles of clothing found in the parking lot. The
victim was transported to a hospital, where he died from his
wounds at approximately 3 A.M. The defendant was transported to
the Cambridge police station, where his hands were swabbed for
gunshot primer residue testing. Cambridge police officers
questioned the defendant regarding the whereabouts of the gun,
to which he responded, "I don't think you guys gonna find any
guns." The defendant's booking photograph was placed in
photographic arrays to be shown to several of the witnesses to
the shooting.
On the same morning, Cambridge police arranged for
Detective Daniel McNeil, a so-called "blind presenter," to
conduct a photographic array procedure with Dabady. Dabady
explained that an array was unnecessary, as he already knew the
shooter. Nonetheless, Detective McNeil read to Dabady a list of
advisements from the Cambridge police photographic
identification checklist and presented him with a sequential
array. Dabady identified the defendant as the shooter, which
McNeil recorded on the checklist.
7
McNeil then conducted photographic array procedures with
Mendes and Bhatia. Although each selected the defendant's
photograph, neither was able to express confidence that the
person in the photograph was the shooter. Approximately one
month later, a different blind presenter, Detective Donald
Mahoney, conducted a sequential photographic array procedure
with Mathurin, who, along with Dabady, had been with the victim
on the night of the shooting. Mahoney recited each of the
advisements and Mathurin identified the defendant as the
shooter. In addition, Cambridge police presented the
defendant's sister, Shelly Bresilla, with a photograph of the
jacket found in the parking lot. She recognized the jacket and
the cellular telephone contained in one of its pockets as gifts
she had given to the defendant.
b. The motions to suppress. Prior to trial, the defendant
moved to suppress the showup identification by Jacobs, the
photographic identifications by Dabady and Mathurin, and the
jacket identifications made by Bhatia and Shelly Bresilla. A
three-day evidentiary hearing was held on the motions. At some
point during the course of the hearing, Detective Mahoney
approached Bhatia in the hallway and showed him some photographs
from the photographic array procedure in which Bhatia previously
participated. Although both witnesses were sequestered,
Detective Mahoney asked Bhatia if he remembered which photograph
8
he had selected and, when Bhatia responded in the negative,
Detective Mahoney pointed to a photograph of the defendant and
informed Bhatia that he had selected that photograph.
The motion judge sanctioned the Commonwealth by precluding
Bhatia from identifying the defendant at trial either directly
or through a photographic array, while preserving the
defendant's right to elicit before the jury Bhatia's inability
to positively identify the defendant's photograph. The motion
judge also suggested that a midtrial voir dire be conducted to
ensure that Bhatia would not make a surprise identification of
the defendant during his testimony.
With respect to the merits of the motion to suppress, the
judge found no error in the showup procedure used with Jacobs
given the ongoing threat to public safety, the use of cautionary
advisements by Detective McHale, Jacobs's professed ability to
identify the shooter, and the fact that the showup occurred
within one hour of the shooting. The judge also determined that
the defendant failed to meet his burden of establishing that the
photographic arrays shown to Dabady and Mathurin were
unnecessarily suggestive, noting that the police had used blind
presenters, that precautionary advisements had been given, and
that both witnesses were already familiar with the defendant.
The judge likewise rejected the defendant's challenge of the
jacket identifications, concluding that the circumstances did
9
not render this the "extreme case" alluded to in Commonwealth v.
Simmons, 383 Mass. 46, 51 (1981), S.C., 392 Mass. 45, cert.
denied, 469 U.S. 196 (1984) (in "extreme case," suggestiveness
of identification procedure of inanimate objects might rise to
denial of due process).
c. The trial. The Commonwealth presented substantial
evidence of the defendant's culpability, including the showup
identification by Jacobs, the photographic identifications by
Dabady and Mathurin, and the jacket identifications made by
Mendes and Bhatia in the video store parking lot. The
Commonwealth's expert witnesses opined that the jacket tested
positive for the defendant's deoxyribonucleic acid (DNA), that
both of the defendant's hands tested positive for gunshot
residue primer, and that the ammunition recovered from the scene
was consistent with having been fired from a Luger semiautomatic
pistol. The jury also heard the testimony of Jacobs, who was
standing within feet of the victim; Dabady and Mathurin, who
knew the defendant and indentified him as the shooter; Bhatia,
Mendes, and Vicini, who identified the jacket as the one worn by
the shooter; and Shelly Bresilla, who identified the jacket and
cellular telephone as items that she had given to her brother as
gifts.
During the trial, defense counsel learned that, just prior
to trial, the prosecutor had conducted witness preparation
10
sessions with Bhatia, Mendes, and Vicini in which he showed each
witness a photograph of the jacket found in the parking lot to
determine whether they could still identify it.1 Defense counsel
then moved to preclude the in-court identification of the jacket
by Mendes and Vicini, arguing essentially that such testimony
would be the product of a highly prejudicial showup photographic
identification. The prosecutor countered that he properly asked
each witness if they recognized the jacket depicted on the
photograph in the context of trial preparation. The judge
denied the defendant's motion, concluding there was no
misconduct and no prejudice.
Also during the trial, defense counsel noticed
discrepancies between the original eyewitness photographic
identification forms regarding the defendant that were entered
in evidence and the copies provided to the defendant in
discovery. Several of the originals apparently had been altered
with "whiteout" and reflected new or different information.
Defense counsel moved to dismiss the case on grounds of
prosecutorial misconduct or, in the alternative, to stay the
proceedings pending an investigation into the Cambridge police
procedures used in building the case against the defendant.
1
Defense counsel learned of this during the Commonwealth's
direct examination of Fabio Mendes, which was prior to the
testimony of Sonny Bhatia and David Vicini.
11
The judge held a midtrial, two-day evidentiary hearing
outside the presence of the jury. At the hearing, defense
counsel extensively cross-examined Detective McNeil and Sergeant
John Boyle, the officer who had been in charge of the
investigation. Each denied any knowledge regarding the
modifications made to the witness identification forms, and the
judge denied the defendant's motion. At the conclusion of the
trial, the defendant requested that the jury be given specific
instructions regarding police misconduct and the fallibility of
eyewitness identifications of physical evidence. These requests
were denied as well, although the judge did allow defense
counsel to argue those points to the jury. The judge also
extensively instructed the jury regarding the factors that
generally affect eyewitness identification testimony. The jury
found the defendant guilty of the firearm violation and murder
in the first degree on a theory of premeditation.
d. Motion for a new trial. The defendant moved for a new
trial on grounds that the Cambridge police failed to adhere to
department protocols with respect to the photographic
identifications and that the Commonwealth failed to timely
disclose its pretrial jacket identification sessions, which, in
any event, violated due process because the photograph of the
jacket was presented alone rather than in an array of jacket
photographs.
12
In light of the midtrial evidentiary hearing, the judge
denied the defendant's motion without holding an additional
hearing. The judge concluded that the procedural lapses of the
Cambridge police with respect to filling out the eyewitness
identification forms were minor, did not prejudice the
defendant, and -– in one instance -– actually benefited him.
Citing the Simmons case, she ruled that the witness preparation
sessions did not violate due process and, further, that the
amended through 442 Mass. 1518 (2004), did not apply to
identifications of inanimate objects and, even if it did, the
defendant was not prejudiced by any delay in the disclosure. On
appeal, the defendant assigns error to various rulings related
to the motions to suppress, evidentiary rulings at trial, the
prosecutor's closing, the judge's jury instructions, and the
denial of the motion for new trial. We affirm.
2. Discussion. "When this court reviews a defendant's
appeal from the denial of a motion for a new trial in
conjunction with his direct appeal from an underlying conviction
of murder . . . , we review both under G. L. c. 278, § 33E."
Commonwealth v. Burgos, 462 Mass. 53, 59, cert. denied, 133
S. Ct. 796 (2012).
a. The jacket identifications. The defendant argues that
the admission of the jacket identifications violated due process
and rule 14. In Simmons, 383 Mass. at 51, we observed that
13
although the principles applicable to pretrial identifications
of suspects do not ordinarily extend to out-of-court
identifications of inanimate objects, "in an extreme case, the
degree of suggestiveness of an identification procedure
concerning an inanimate object might rise to the level of a
denial of due process." The defendant contends that this is
such a case. We do not agree.
In the Simmons case, a rape victim had told the police
"that her attacker's vehicle was 'a small vehicle, a Volkswagen-
type of vehicle.'" Id. at 49. The Commonwealth was concerned
that the victim would be unable to identify the defendant's
vehicle, which was a Ford Mustang. Id. at 47-49. Prior to
trial, the victim was escorted to and shown the vehicle by the
police. Id. at 47. At trial, the victim described the
perpetrator's vehicle as a Ford Mustang. Id. at 49. In
concluding that the showup procedure employed by the police was
not marked by fundamental unfairness, we noted that the evidence
did not demonstrate that the victim had been contemporaneously
instructed as to the ownership of the vehicle. Id. at 53.
The jacket identifications in this case were significantly
less suggestive than the automobile identification in the
Simmons case. First, the parking lot identifications of the
jacket made by Bhatia and Mendes just after the shooting were
critical to the ongoing police effort to apprehend an armed
14
murderer on the loose. There can be no serious argument that,
in such a situation, the police were required to present the
witnesses with a jacket lineup. Second, given that the trial
did not take place until nearly four years after the shooting,2
it was reasonable for the prosecutor, during trial preparation,
to show Bhatia and Mendes a photograph and to inquire whether
they would be able to make an in-court identification of the
jacket that they had identified in the parking lot on the night
of the murder. It was also reasonable to ask Vicini whether he
recognized the jacket in the photograph, where he had described
it to police right after the shooting.
The defendant points out that, unlike in the Simmons case,
it would not have been burdensome for the Commonwealth to
arrange either a jacket lineup or a photographic array of
jackets in advance of trial. That may be so, but that is not
the governing standard. Our observation regarding the
feasibility of an automobile lineup in the Simmons case was but
one of several distinctions we drew between identifications of
people and property. Id. at 52. The finer point was that,
unlike people, tangible objects are typically not unique, and
thus identifications of the latter provide only indirect
2
The delay is explained, in part, by the fact that the
defendant was sent to Bridgewater State Hospital, apparently on
two occasions, for evaluation of his competency to stand trial.
See G. L. c. 123, § 15.
15
evidence of the defendant's guilt. Id. By comparison, the
"chances of fundamental unfairness are greater in the former
situation. Identification of a defendant directly tends to prove
the case against him." Id.
In this case -– and in sharp contrast to Detective
Mahoney's inappropriate conduct in the hallway during the motion
to suppress hearing -– the prosecutor simply showed a picture of
the previously identified jacket to the witnesses and asked
whether they recognized it. We find nothing fundamentally
unfair or suggestive about the procedures employed by either the
police or the prosecutor with respect to the jacket. As in the
Simmons case, the Commonwealth was not required to create a
photographic array of jackets as part of its preparation for
trial.
The defendant posits that, even if the identifications
themselves were not unduly suggestive, the Commonwealth's
failure to disclose them violated the rule of Brady v. Maryland,
373 U.S. 83 (1963). In that case, the United States Supreme
Court held "that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution."
Id. at 87. We have clarified that "[w]here such evidence is
disclosed belatedly, 'it is the consequences of the delay that
16
matter, not the likely impact [of the evidence].'" Commonwealth
v. Forte, 469 Mass. 469, 486 (2014), quoting Commonwealth v.
Wilson, 381 Mass. 90, 114 (1980). The threshold issue, however,
is whether the evidence was in fact exculpatory. See
Commonwealth v. Williams, 455 Mass. 706, 714 (2010).
The defendant reasons that the trial testimony of Mendes
and Vicini constituted exculpatory impeachment evidence because
it was more damaging than their original statements to the
police. See Commonwealth v. Vieira, 401 Mass. 828, 832 (1988),
quoting Commonwealth v. Ellison, 376 Mass. 1, 22 (1978)
("Although the evidence was more incriminating than the earlier
statements, it was exculpatory in the sense that the variance
with the previous statements permitted 'challenge[] [to] the
credibility of a key prosecution witness'"). We are not
persuaded. Contrary to the defendant's recitation of the
evidence, Mendes did identify the jacket in the video store
parking lot as the one worn by the shooter. Moreover, although
Vicini had previously only described the jacket to the police,
the defendant was on notice of the Commonwealth's intention to
elicit a jacket identification from Vicini at trial. However,
even if the defendant were correct that the Commonwealth was
obliged to disclose the pretrial photographic identification of
the jacket, he was not prejudiced by the fact of the delay in
that disclosure.
17
The defendant complains that he did not have the benefit of
this "new" testimony when cross-examining Jacobs, Jeanne Pinette
(an eyewitness), and Officer Janie Munroe (who found the
jacket). Yet, if the exculpatory character of the testimony lay
in its capacity to impeach its source, it is unclear how the
defendant would have used that evidence effectively against
Jacobs, Pinette, and Munroe. See Vieira, 401 Mass. at 832. In
contrast, defense counsel was able to cross-examine Bhatia,
Mendes, and Vicini -- the sources of the purportedly
inconsistent testimony. See Commonwealth v. Gilbert, 377 Mass.
887, 895 (1979) ("As to the problem of preparation, the cross-
examination of [the witness] was not only extended but
searching, and we do not think it would have been materially
improved by earlier warning about the witness's departure from
the written statement"). There is no apparent basis to conclude
that a restructured cross-examination of any of the witnesses -–
based on an earlier disclosure -– would have "create[d] a
reasonable doubt that would not otherwise have existed."
Commonwealth v. St. Germain, 381 Mass. 256, 263 (1980), quoting
Wilson, 381 Mass. at 114. The defendant also makes much of the
varying descriptions of the jacket that were relayed to the
jury. Yet, any such inconsistencies go to weight rather than
its admissibility. See Simmons, 383 Mass. at 50-51. There was
no due process violation.
18
In addition, the trial judge correctly determined that any
nondisclosure was not in bad faith. "When the ground for a
continuance or exclusion of evidence involves late disclosure by
the prosecution, without any showing of bad faith on its part
(as is the case here), a defendant is required to show material
prejudice from the disclosure before a new trial can be
considered." Commonwealth v. Hamilton, 426 Mass. 67, 70 (1997).
Defense counsel was able to cross-examine vigorously Bhatia,
Mendes, and Vicini regarding the pretrial jacket identification
procedures. The photograph was not presented to any of the
three in an unduly suggestive manner and, therefore, there was
little risk that the in-court identifications were premised on
the witness preparation session rather than the witnesses'
memories of what they had observed on the night of the shooting.
Contrast Commonwealth v. Jones, 423 Mass. 99, 105 (1996) ("We
too reject the Commonwealth's argument that the evidence was
clear and convincing that [the witness's] in-court
identification had a source independent of what the Commonwealth
implicitly concedes were two highly suggestive pretrial
encounters"). Consequently, the delay did not affect materially
the jury's consideration of the evidence or the defendant's
ability to challenge that evidence.
b. The photographic arrays. The defendant also assigns
error to the admission of the photographic arrays conducted with
19
Dabady, Mathurin, Mendes, and Bhatia.3 The judge acting on the
motion to suppress "articulated the correct standard, placing on
the defendant the burden of proving that the identification
procedures were '"so unnecessarily suggestive and conducive to
irreparable mistaken identification" as to deny the defendant
due process of law.'" Commonwealth v. Echavarria, 428 Mass.
593, 596 (1998), quoting Commonwealth v. Venios, 378 Mass. 24,
27 (1979). Based on the state of the evidence at that juncture,
her findings of fact were accurate and her conclusions of law
were sound.
Over the course of the trial, additional facts came to
light, specifically the modifications to the identification
forms that appeared after the motion to suppress hearing, where
defense counsel pointed out several mistakes that had been made
in filling them out. Yet, whether these modifications were a
result of mere sloppiness or affirmative misconduct, they did
not affect the conditions under which the photographic arrays
were conducted. The judge had discretion in fashioning a
remedy, which she exercised by permitting defense counsel to
extensively cross-examine the officers regarding the changes.
See, e.g., Commonwealth v. Hine, 393 Mass. 564, 573 (1984)
(remedy for police misconduct should be tailored to cure
3
The motion judge ordered that Bhatia was not permitted to
identify the defendant or any of the photographs he picked out
of the photographic array during his trial testimony.
20
prejudice to defendant); Commonwealth v. Williams, 6 Mass. App.
Ct. 923, 924 (1978) (remedy for police misconduct committed to
discretion of trial judge). In so doing, defense counsel cast
considerable doubt over the thoroughness and integrity of the
police investigation and eliminated any prejudice inuring to the
defendant by way of the modifications.4
In his motion for new trial, the defendant buttressed his
initial suppression arguments with the additional irregularities
uncovered at trial. The motion judge, who was also the trial
judge, determined that any error did not prejudice the
defendant. Several of the changes, such as the addition of file
numbers and the name of the person who composed the arrays, were
completely innocuous. Moreover, the modification to the
identification form signed by Mendes benefited the defendant by
more overtly indicating that Mendes was unable to identify the
perpetrator. Although it is accurate to say that the police
officers who presented the photographic arrays failed to
indicate on the form which advisements were given to each
witness, it is also accurate that the evidence at trial plainly
established that each witness was read the full menu of
advisements and was asked to state how certain he was of the
4
The changes were not even remotely inculpatory, but,
because they existed, defense counsel was able to use them
largely to his advantage.
21
identification. See Commonwealth v. Silva-Santiago, 453 Mass.
782, 798 (2009).
The fact that Dabady and Mathurin already knew the
defendant at the time they made the photographic identifications
of him, and that that information was not written on the
identification forms, lacks constitutional significance. See,
e.g., Commonwealth v. Carr, 464 Mass. 855, 871 (2013)
("witnesses knew the defendant from the neighborhood and
witnessed the shooting in broad daylight; it is unlikely that
suggestiveness would have played much of a role in their
identifications"). Although the one-month delay in the Mathurin
array was not ideal, it was not so lengthy as to render the
identification procedure unduly suggestive. See, e.g.,
Commonwealth v. Funderberg, 374 Mass. 577, 582 (1978) (two-month
lapse not suggestive). Further, Detective McNeil's continued
status as a blind presenter following the photographic
identification made by Dabady was "properly a matter of the
weight of the identification evidence . . . rather than of
admissibility." Silva-Santiago, 453 Mass. at 797.5 Looking at
the evidence as a whole, we conclude that the defendant was not
5
Moreover, whatever the slight effect Detective McNeil's
errant remark of "that's good" (made after Mendes selected a
photograph) had on the suggestiveness of the array, its force
was blunted by Mendes's failure to make a positive
identification.
22
deprived of due process by the manner in which the photographic
identifications of him were made.
c. The showup. The defendant next renews his claim of
error with respect to the showup identification of Jacobs. "We
have repeatedly held that, although inherently suggestive, one-
on-one confrontations in the immediate aftermath of a crime need
not be suppressed." Commonwealth v. Walker, 421 Mass. 90, 95
(1995). Such one-on-one identification procedures will pass
muster so long as there was "good reason" for the police to
employ them. Commonwealth v. Austin, 421 Mass. 357, 361 (1995).
"Relevant to the good reason examination are the nature of the
crime involved and corresponding concerns for public safety; the
need for efficient police investigation in the immediate
aftermath of a crime; and the usefulness of prompt confirmation
of the accuracy of investigatory information, which, if in
error, will release the police quickly to follow another track."
Id. at 362.
The crime involved in this case was homicide -– potentially
murder -– by means of a semiautomatic firearm fired in the midst
of a crowd of people. The police had not located the firearm
and the perpetrator was still at large, late at night, in a
densely populated city. Within less than one hour, the police
had located a suspect who roughly matched the descriptions
supplied by witnesses, as well as a witness who claimed he could
23
recognize the shooter if given the opportunity. It is difficult
to imagine a scenario presenting a more compelling reason to
conduct a showup procedure.
The defendant acknowledges the exigency of the situation,
but asserts that the showup was conducted in an unnecessarily
suggestive manner. The defendant identifies Jacobs as the
primary source of this suggestiveness. "The question raised by a
motion to suppress identification testimony," however, "is not
whether the witness might have been mistaken, but whether any
possible mistake was the product of improper suggestions by the
police." Commonwealth v. Watson, 455 Mass. 246, 251 (2009). In
Commonwealth v. Phillips, 452 Mass. 617, 628 (2008), we held
that the "facts that [the defendant] had been detained in a
police wagon, was handcuffed, and was flanked by two police
officers during the investigation did not render the procedure
unnecessarily suggestive."
Here, at the time of the showup, the defendant stood in the
fresh air with his hands behind his back and, although there
were police officers nearby, the defendant did not appear to be
detained. The circumstances of the showup in this case were
less suggestive than the circumstances in the Phillips case.
See id.; see also Commonwealth v. Figueroa, 468 Mass. 204, 218
(2014). Jacobs may or may not have been a reliable witness, but
that was a question for the jury, who were thoroughly instructed
24
on the subject by the trial judge. See Commonwealth v. Francis,
390 Mass. 89, 100-101 (1983). Detective McHale had to make a
judgment call in the face of an ongoing threat to public safety,
and we find no error in his exercise of that judgment. He gave
Jacobs all of the advisements, confirmed that he understood
them, and then recorded all of the information required by the
showup identification form. See Silva-Santiago, 453 Mass. at
798. The showup procedure was valid.
d. The challenged testimony. The defendant next contends
that the admission of prejudicial testimony of two of the
Commonwealth's witnesses constituted reversible error.
Specifically, he casts "Sergeant [Edward J.] Frammartino's
testimony about white, frothy sputum coming out of (the
victim's) mouth and all over the place, and the chemist's
extensive and illustrated testimony about the blood-stained pink
shirt," as appealing to the sympathies of the jury.6 Because
this testimony was not relevant to the identity of the shooter,
the defendant contends that his objection at trial should have
been sustained.
"Evidence is relevant if it has a rational tendency to
prove a material issue." Commonwealth v. Dunn, 407 Mass. 798,
807 (1990). "The weighing of the prejudicial effect and
6
The defendant does not appeal the admission in evidence of
the bloody shirt, which exhibited fourteen holes, or the
photographs of that bloody shirt.
25
probative value of evidence is within the sound discretion of
the trial judge, the exercise of which we will not overturn
unless we find palpable error." Commonwealth v. Bonds, 445
Mass. 821, 831 (2006). The boundaries of relevance are not
defined solely by the defendant's theory of the case. In other
words, the defendant's misidentification theory did not relieve
the Commonwealth of its burden of proving each element of its
prima facie case of murder in the first degree. See
Commonwealth v. Fitzgerald, 380 Mass. 840, 841-842 (1980) ("It
is incontrovertible that the burden is on the Commonwealth to
prove or disprove beyond a reasonable doubt each of the elements
constituting the crime of murder that were in issue in this
case").
In order to meet its burden with respect to the theory of
extreme atrocity or cruelty, the Commonwealth's "evidence [had
to] be of such a character as to show that the crime was
committed under circumstances indicating something more than
ordinary atrocity or cruelty, and manifesting a degree of
atrocity or cruelty which must be considered as aggravated and
extreme." Commonwealth v. Knowlton, 265 Mass. 382, 388 (1928).
In evaluating whether the Commonwealth met that standard, the
jury were permitted to consider:
"the defendant's indifference to or pleasure in the
victim's suffering, the victim's consciousness and degree
of suffering, the extent of injuries inflicted, the number
26
of blows, the manner and force by which the blows were
delivered, the weapon used by the defendant, and the
disproportion between the means necessary to cause death
and the means employed."
Commonwealth v. Semedo, 422 Mass. 716, 721 (1996), citing
Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983). Evidence
probative of extreme atrocity or cruelty will often be gruesome,
but that fact alone is insufficient to render the evidence
inadmissible. Commonwealth v. Ramos, 406 Mass. 397, 406-407
(1990).
Sergeant Frammartino's testimony regarding the white,
frothy sputum and breathing difficulties of the victim as he lay
dying was relevant to consciousness and degree of suffering.
See Semedo, 422 Mass. at 721. The chemist's testimony regarding
the photographs clarified which of the fourteen holes in the
shirt were consistent with the travel of bullets, which was
relevant to the extent of the injuries, the number of blows, and
the weapon used to inflict them. See id. The judge did not
abuse her discretion in determining that the relevance of each
witness's testimony was not outweighed by its prejudicial
effect. Cf. Commonwealth v. Campbell, 375 Mass. 308, 313-314
(1978) (no error in admission of both photographic and verbal
testimony illustrating nature of murder victim's wound).
e. The prosecutor's closing argument. The defendant also
challenges two aspects of the Commonwealth's closing argument.
27
First, he accuses the prosecutor of improperly speculating that
the "defendant wasn't alone that night. He was talking to
friends. Don't you think that's who he ditched the gun -- or,
handed the gun off to?" Second, he contends that the prosecutor
shifted the burden of proof by commenting on the defendant's
unhelpfulness during the police investigation. Because defense
counsel objected to both of the challenged remarks at trial, we
review for prejudicial error. Commonwealth v. Santiago, 425
Mass. 491, 500 (1997), S.C., 427 Mass 298 (1998), and 428 Mass.
39 (1998), cert. denied, 525 U.S. 1003 (1998). "The cumulative
effect of all the errors in the context of the entire argument
and the case as a whole is considered in making this
determination." Id.
"The rules governing prosecutors' closing arguments are
clear in principle." Commonwealth v. Kozec, 399 Mass. 514, 516
(1987). Prosecutors may not refer to facts not in evidence or
make statements that shift the burden of proof to the defendant.
Commonwealth v. Amirault, 404 Mass. 221, 238-240 (1989). "A
prosecutor may, however, in closing argument, analyze the
evidence and suggest what reasonable inferences the jury should
draw from that evidence." Commonwealth v. Grimshaw, 412 Mass.
505, 509 (1992). Because the line separating speculation and
inference is often a fine one, "we must and do recognize that
closing argument is identified as argument, the jury
28
understand[] that, instructions from the judge inform the jury
that closing argument is not evidence, and instructions may
mitigate any prejudice in the final argument." Kozec, 399 Mass.
at 517.
The prosecutor was entitled to offer a response to defense
counsel's closing argument regarding the failure by police to
locate the gun. See Commonwealth v. LeFave, 407 Mass. 927, 939
(1990) (prosecutor has right of retaliatory reply). As there
was no direct evidence that the defendant "ditched the gun," the
prosecutor asked the jury to draw an inference based on the
following facts that were in evidence: (1) the police were
unable to locate the gun; (2) when asked about the location of
the gun, the defendant indicated that the police would not find
it; (3) the defendant discarded articles of his clothing in the
aftermath of the shooting; and (4) the defendant told the police
that he was with his friends outside the night club at the time
of the shooting. In light of these facts, as well as the
substantial evidence that the defendant was the shooter, the
jury were permitted to infer that the defendant handed the gun
off to a friend.
The prosecutor was also entitled to respond to defense
counsel's criticism of the police investigation, which
characterized the police as more interested in building a case
against the defendant than in finding the actual perpetrator.
29
See LeFave, 407 Mass. at 939. The defendant told the police
that he was with his friends outside the night club at the time
of the shooting. In express rebuttal to defense counsel's
charge, the prosecutor recounted the Cambridge police
department's unsuccessful attempts to contact these friends to
confirm the defendant's alibi. The defendant contends that this
"signal[ed] to the jury that the defendant ha[d] an affirmative
duty to bring forth evidence of his innocence." Commonwealth v.
Tu Trinh, 458 Mass. 776, 787 (2011). We disagree.
The cases cited by the defendant are not on point. In
Commonwealth v. Buzzell, 53 Mass. App. Ct. 362, 370 (2001), the
prosecutor observed to the jury that defense counsel had failed
to offer an explanation for the "uncontested" evidence against
the defendant. As we explained in Commonwealth v. Borodine, 371
Mass. 1, 10 (1976), cert. denied, 429 U.S. 1049 (1977):
"References to certain facts as 'uncontested' are improper when
the defendant himself is the only one who can contradict the
evidence." In Tu Trinh, 458 Mass. at 788, the prosecutor opined
to the jury that "to come in here and point the finger at the
Boston police department because it's easy to do is just not
fair and it's not right." This constituted improper argument
because it suggested that defense counsel's strategy was
inappropriate. We held that the trial judge mitigated any
prejudice by instructing the jury that "[w]hat [the prosecutor]
30
meant to say . . . was, in his view, based on the state of the
evidence and the circumstances of this case[,] that it was
unwarranted, not that it was not right or unfair." Id. at 789 &
n.21.
By comparison, the prosecutor in this case did not comment
on the defendant's failure to contradict "uncontested" evidence,
nor did he imply that it was improper for defense counsel to
attack the thoroughness of the police investigation. Rather, he
argued that defense counsel's assertion was not supported by the
evidence. This was permissible. Viewing the prosecutor's
statements in context, there is no basis to conclude that the
burden of proof was shifted from the Commonwealth to the
defendant.
f. The requested jury instructions. The defendant argues
that the judge erred in denying three requested jury
instructions. We find no error. Two of the requested
instructions, which the defendant captions "Omissions in Police
Investigations" and "Missing or Tampered with Evidence," were
intended to address certain purported failures or inadequacies
in the police investigation. These requested instructions are
accurately characterized as a so-called Bowden instruction. See
Commonwealth v. Tolan, 453 Mass. 634, 652 (2009) ("[Commonwealth
v Bowden, 379 Mass. 472, 486 (1980)] instruction permits jurors
31
to consider evidence . . . of police failure to take certain
investigatory steps").
On a number of occasions, we have said that the Bowden
instruction may be given in the judge's discretion, but it is
never required. See e.g., Commonwealth v. Fitzpatrick, 463
Mass. 581, 598 (2012), quoting Commonwealth v. Williams, 439
Mass. 678, 687 (2003) ("such an instruction is 'never required
under our case law'"); Commonwealth v. Perez, 460 Mass. 683, 692
(2011), quoting Williams, 439 Mass. at 687 ("as we have often
stated, 'a judge is not required to instruct on the claimed
inadequacy of a police investigation'"). All Bowden requires,
we have said, is that the judge not remove from the jury's
consideration the issue of claimed failure or inadequacy.
Fitzpatrick, 463 Mass. at 598.
Here, the judge did not prevent defense counsel from
arguing the inadequacies of the police investigation to the
jury. Indeed, defense counsel took full advantage of the
opportunity. The issue was properly before the jury, and the
judge's instructions provided a sufficient legal framework for
the jury to weigh the evidence and determine the credibility of
each witness. There was no abuse of discretion. Perez, 460
Mass. at 692.
The defendant captions the third requested instruction,
"Identification of Physical Evidence." He contends that this
32
instruction anticipated our holding in Commonwealth v. Franklin,
465 Mass. 895, 912 (2013), that, when requested, a "variation of
the approved identification instruction" should be given where
"eyewitnesses have provided a physical description of the
perpetrator or his clothing." Id. The new rule articulated in
the Franklin case arose in the context of our observation "that
eyewitness identification may be an important issue at trial
even where no eyewitness made a positive identification of the
defendant as the perpetrator, but where eyewitnesses have
provided a physical description of the perpetrator or his
clothing." Id. Nonetheless, we concluded that the "absence of
a specific identification instruction was not likely to have
influenced the jury's verdicts and, therefore, did not result in
a substantial likelihood of a miscarriage of justice." Id. at
914.
The defendant does not directly argue that the Franklin
case should be applied retroactively, and we need not reach that
issue, as the defendant suffered no prejudice from the omission.
See Commonwealth v. Dyous, 436 Mass. 719, 730 (2002). The trial
judge instructed the jury extensively regarding eyewitness
identification testimony. The instruction covered numerous
factors to consider when evaluating such testimony, including
lighting, distance, whether the witness had seen or known the
person in the past, the witness's capacity and opportunity to
33
make the observation, and the length of time between the
observation and the testimony. Although the judge did not
assign explicitly this framework to identifications of physical
evidence, the concepts were transferable readily.
Moreover, defense counsel was permitted to argue this very
point during his closing argument and, in fact, did so
extensively. In light of defense counsel's vigorous argument,
the court's instructions on eyewitness identification testimony,
and the strong evidence implicating the defendant as the
shooter, we conclude that the absence of the modified
instruction "did not influence the jury, or had but very slight
effect." Commonwealth v. Gambora, 457 Mass. 715, 729 (2010),
quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
g. The motion for a new trial. The defendant's final
argument is that he was erroneously deprived of an evidentiary
hearing in connection with his motion for a new motion. "The
decision to hold an evidentiary hearing on a motion for a new
trial is a matter committed to the sound discretion of the trial
judge." Commonwealth v. Britto, 433 Mass. 596, 608 (2001). A
"judge may rule on the issue or issues presented by such motion
on the basis of the facts alleged in the affidavits without
further hearing if no substantial issue is raised by the motion
or affidavits." Mass. R. Crim. P. 30 (c) (3), as appearing in
435 Mass. 1501 (2001). "In determining whether a 'substantial
34
issue' meriting an evidentiary hearing under rule 30 has been
raised, we look not only at the seriousness of the issue
asserted, but also to the adequacy of the defendant's showing on
the issue raised." Commonwealth v. Stewart, 383 Mass. 253, 257-
258 (1981).
The issues raised by the defendant's motion and the
accompanying affidavit of trial counsel were the pretrial jacket
identifications, the protocol lapses by the Cambridge police,
and the altered identification forms. Those issues were
thoroughly explored through evidentiary hearings both prior to
and during the trial. The judge did not abuse her discretion in
concluding that an additional hearing would have been cumulative
and unnecessary. Britto, 433 Mass. at 608.
h. G. L. c. 278, § 33E. We have reviewed the record in
accordance with G. L. c. 278, § 33E, to determine whether there
is any basis to set aside or reduce the verdict of murder in the
first degree or to order a new trial, regardless of whether such
grounds were raised on appeal. During that review, we
encountered questionable actions by the police,7 and several
7
As indicated above, we conclude that the various lapses in
protocol and judgment by the Cambridge police department in this
case were appropriately addressed at each stage of the
proceedings below.
35
erroneous evidentiary rulings.8 We conclude, however, that these
errors did not give rise to a substantial likelihood of a
miscarriage of justice. Accordingly, we decline to exercise our
authority under § 33E to order a new trial or reduce the degree
of guilt.
Judgments affirmed.
8
One of these rulings pertained to the identification
testimony of Daniel Jacobs. The trial judge entirely precluded
defense counsel from using Jacobs's medical records to impeach
the credibility of his observations on the night of the
shooting. Just six weeks prior to the shooting, Jacobs had been
admitted to a hospital specializing in the treatment of
psychiatric illness and chemical dependency. The hospital
records reveal a history of bipolar disorder and poly-substance
abuse. During his stay, Jacobs also complained of intermittent
blurred vision, exhibited inconsistent memory, and engaged in
unstable behavior that resulted in his being chemically
restrained on two occasions. Given the temporal proximity of
Jacobs's stay to the night in question, the records may very
well have cast doubt among the jury regarding Jacobs's ability
to accurately perceive and describe the events he allegedly
witnessed on the night of the shooting. Commonwealth v. Caine,
366 Mass. 366, 369 (1974) ("mental impairment, as well as
habitual intoxication and drug addiction, may be the subject of
proper impeachment if it is shown that such factors affect the
witness's capacity to perceive, remember, and articulate
correctly"). Therefore, we disagree with the judge's conclusion
that the records were not relevant.
Nevertheless, this error does not require reversal because
defense counsel was permitted and able to broadly and
effectively impeach Jacobs's credibility. On cross-examination,
Jacobs admitted to prior convictions for drug possession, to
having substance abuse problems, to drinking on the night of the
shooting, to misremembering the date and time of his arrival at
the night club, and to many inconsistencies between his trial
testimony and grand jury testimony. Moreover, given the
strength of the Commonwealth's other evidence, we conclude that
the additional, disallowed source of impeachment could not have
affected the jury's decision. See Commonwealth v. Morales, 461
Mass. 765, 784-785 (2012).
36
Order denying motion for
new trial affirmed.