Commonwealth v. Cassidy , 470 Mass. 201 ( 2014 )

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SJC-11342
COMMONWEALTH vs. TIMOTHY CASSIDY.
Bristol. September 5, 2014. - December 16, 2014.
Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ.
Homicide. Evidence, Third-party culprit, Relevancy and
materiality, Cumulative evidence, Hearsay, Opinion,
Consciousness of guilt, Intoxication, Bias of government
witness, Unavailable witness. Fair Trial. Constitutional
Law, Fair trial. Due Process of Law, Fair trial. Jury and
Jurors. Witness, Unavailability. Practice, Criminal,
Capital case, Assistance of counsel, Argument by counsel,
Argument by prosecutor, Fair trial, Jury and jurors,
Question by jury.
Indictment found and returned in the Superior Court
Department on February 8, 2008.
The case was tried before Barbara A. Dortch-Okara, J.
Robert F. Shaw, Jr., for the defendant.
Thomas M. Quinn, III, Assistant District Attorney (Yul-mi
Cho, Assistant District Attorney, with him) for the
Commonwealth.
HINES, J. In January, 2012, a jury convicted the
defendant, Timothy Cassidy, of murder in the first degree on the
theory of extreme atrocity or cruelty.1 Represented by new
counsel on appeal, the defendant argues that (1) the trial judge
committed numerous evidentiary errors that undermined the
defendant's right to present his defenses and deprived him of
due process and fundamental fairness under the United States
Constitution and the Massachusetts Declaration of Rights; (2)
defense counsel misstated evidence during his closing argument;
and (3) the judge improperly responded to a question posed by
the jury. We affirm the defendant's convictions and discern no
basis to exercise our authority pursuant to G. L. c. 278, § 33E.
Background. 1. The Commonwealth's case. We recite the
facts the jury could have found based on the Commonwealth's
case, see Commonwealth v. Latimore, 378 Mass. 671, 676-677
(1979), reserving certain details for our discussion of the
specific issues raised. The defendant and the victim, James
Madonna, were best friends.2 On Tuesday, November 20, 2007,
between 7 and 7:30 P.M., the defendant went to the victim's
house. The two had plans to play poker at a hotel located in an
industrial park in Taunton. Instead of driving together, they
1
The Commonwealth also had proceeded under a theory of
deliberate premeditation, but the jury did not find the
defendant guilty under that theory.
2
The victim worked for a construction company that the
defendant had owned for a short time. The defendant sold the
business and the victim continued to work as a finish carpenter
for the new owner.
drove separately. A fellow poker player saw them leaving the
hotel together at approximately 8:15 P.M.
Telephone records confirmed that at 10:11 and 10:12 P.M.,
the defendant's wife telephoned him, asking him to bring home
some medicine. He went to a nearby pharmacy at 10:21 P.M. and
purchased the medication along with a package of cigarettes. He
arrived home between 10:30 and 11 P.M. He did not enter the
house immediately, but went to the garage where he remained for
about twenty minutes.
The victim did not return home that evening. His wife, who
was related to the defendant,3 repeatedly called the victim's
cellular telephone, to no avail. She took their eldest son,
James, out looking for the victim. James telephoned the
defendant, who stated that the victim, after playing poker, said
that he was going to meet a friend.
The next morning, the victim's wife telephoned the
defendant, who told her that he had left the poker game early,
but that the victim had stayed to continue playing. The
defendant went to the victim's home and joined James in looking
for the victim. The search was unsuccessful, and after filing a
3
The victim's oldest son testified that his mother and the
defendant were cousins. The victim's wife testified, however,
that the defendant was a son of her cousin. The exact relation
is of no significance.
missing person's report at the Taunton police department, the
two returned to the victim's house.
Shortly thereafter, the defendant suggested that they
resume their search and look through "every single parking lot"
in the industrial area near the hotel. After some searching,
the defendant suggested that James drive to a parking lot in the
area near a particular convenience store. James had to change
direction to do so. As he drove into the parking lot in the
back of the building, James recognized his father's automobile,
which was running.
Thinking that his father was drunk and sleeping, James went
over to the victim's automobile. There he discovered the victim
who, though seated in the driver's seat, was "slumped over" onto
a cooler in the passenger seat side of the automobile. A
significant amount of blood was on the inside window to the
front passenger door, and on the cooler. The victim was
unresponsive and his son telephoned 911. As he was doing so,
the defendant went to the opposite side of the automobile and
looked inside.
The victim had been shot once in the neck and four times in
the back, left side of his head. The medical examiner testified
that the victim's skull had been shattered, his brain "extremely
fragmented," and that there was "a large amount of destruction."
She could not determine the sequence of the gunshot wounds and
opined that the victim could have remained conscious for minutes
after suffering the gunshot wound to the neck. The gunshot
wounds to the back of the victim's head, however, would have
resulted in death within seconds. The victim died as result of
gunshot wounds to his head and neck, with perforations to his
skull and brain.
Police arrived at the parking lot shortly thereafter. The
defendant was shaken and indicated that he suffered from heart
problems. A police officer directed a firefighter to treat him,
and the defendant was taken to a different area of the parking
lot where an ambulance was parked.
By the driver's side of the victim's automobile, police
recovered cigarette ash on the door and one cigarette butt on
the ground. A second cigarette butt was found on the opposite
side of the parking lot, in the vicinity of where the ambulance
had been parked. The cigarette butts were sent for
deoxyribonucleic acid (DNA) testing, which revealed that the DNA
recovered from them matched the defendant's DNA.4
Police also recovered five .40 caliber discharged shell
casings manufactured by Federal, one from outside the victim's
automobile and four from the inside. In addition, police found
4
The statistical significance of the deoxyribonucleic acid
(DNA) testing was presented to the jury. See Commonwealth v.
Ortiz, 463 Mass. 402, 408 & n.10 (2012); Commonwealth v.
Lanigan, 419 Mass. 15, 20 (1994).
two spent projectiles and one spent metal jacket5 inside the
automobile. Three .40 caliber spent projectiles were recovered
from the victim by the medical examiner. The Commonwealth's
firearms identification expert opined that, based on his
examination, all of the discharged cartridge casings recovered
during the investigation and all of the spent projectiles and
the spent metal jacket were fired from the same weapon.
There was evidence that the defendant was licensed to
possess and owned a .40 caliber Star Modern Firestar
semiautomatic pistol. He usually kept it in the top drawer of
his bureau, but it was missing when his wife looked a day or two
following the victim's murder. When police, pursuant to a
warrant, searched the defendant's house on Friday, November 23,
they found a fifty-round box of Smith and Wesson Federal .40
caliber ammunition; five rounds were missing from the box. They
did not find the defendant's .40 caliber pistol. Police
eventually recovered the defendant's pistol and submitted it for
forensic testing.6 The Commonwealth's firearms identification
5
The Commonwealth's firearms identification expert
explained that a projectile can be "jacketed," meaning that
there is a copper jacket encasing the lead core of the bullet.
When the weapon is fired, sometimes the copper jacket and lead
core stay intact, while other times the lead core separates from
the jacket.
6
The pistol was recovered almost two years later in
November, 2009. Although the defendant was in jail awaiting
trial at this time, there was evidence that, while he was
expert opined that, based on his examination, all of the
recovered .40 caliber discharged cartridge casings had been
fired from the defendant's pistol. He was unable, however, to
determine whether the recovered projectiles had been fired from
the defendant's pistol.
The Commonwealth's evidence showed that, at the time of the
victim's murder, the defendant was experiencing significant
financial trouble. In connection with a franchise business the
defendant had undertaken, he could not account for approximately
$14,657 and had been given until November 21 either to pay back
the money or to produce proof that deposits had been made. He
did neither, and continued to make excuses.
The defendant, without his wife's knowledge, borrowed money
from the victim and his wife. In late October, 2007, the victim
and his wife pressed the defendant to repay $30,000 on a loan of
$25,000 that they had made to the defendant. The victim's wife
awaiting trial, he had sent a letter to his stepfather directing
him to pick up a can of contact cement from the defendant's
house. The pistol was inside the can (which had been
manufactured only recently). In further correspondence, the
defendant arranged for the can containing the pistol to exchange
hands and eventually be planted under a shed at a particular
address or under the driver's seat of a Lincoln automobile that
would be there. There was evidence that Kevin Hayes, the
brother of the victim's wife, drove a Lincoln automobile. The
plan was thwarted, and the pistol recovered, after one of the
people involved, Gerard Menard (a former inmate who had been
housed with the defendant, contacted police. No forensic
evidence was obtained from the pistol, which had been submerged
in paint inside the can and was not loaded.
threatened the defendant that she would inform his wife about
the loan if he did not pay them back by Monday, November 19 (the
day before the victim's murder).
The defendant, through the help of Kevin Hayes, who was the
brother of the victim's wife, had borrowed $40,000 from a "loan
shark in Brockton" (loan shark) in September or October, 2007.
In exchange for this loan, the defendant agreed to pay $10,000
in interest, and signed over a motorcycle and granted as
collateral a mortgage on a parcel of land in Maine that he owned
with his wife.7 The defendant, without telling his wife, also
had borrowed large sums of money from her uncle. The defendant
further kept his wife uninformed about running up charges on
their credit card, withdrawing money from an equity line of
credit, and cashing a tax refund check made payable to them
jointly without obtaining her signature. At one point, in
September or October of 2007, the defendant's wife asked him to
move out of their home due to his financial dealings.
The defendant spoke with police following the murder. On
November 21, 2007, he spoke twice with State Trooper Michael
Cherven and Taunton police Officer Honorato M. Santos. In the
first interview, which started about 3:15 P.M. and was recorded,
the defendant told them that he did not know why anyone would
7
The mortgage later was invalidated because the signature
of the defendant's wife had been forged. She was not informed
of her husband's business with the loan shark.
want the victim dead. The defendant said he had left the hotel
at 9:30 P.M. He told police that after leaving the hotel, he
went to a specific store and purchased a package of cigarettes.8
The defendant informed the officers that he went to a pharmacy
thereafter to purchase some medication for his wife. The
defendant acknowledged to the officers that he owned a number of
firearms and indicated specifically what he owned, but made no
mention of his .40 caliber pistol.
The following day, November 22, near midnight, the
defendant returned to the police station, claiming that earlier
Hayes had taken a shotgun from his truck and "racked" it toward
his direction. Trooper Cherven offered the defendant police
protection, but he declined. Trooper Cherven asked the
defendant if he thought Hayes had killed the victim. The
defendant replied that he did not.
The defendant agreed to speak with police again and the
interview was recorded. Because the police had obtained
additional information about the defendant's whereabouts after
leaving the hotel with the victim, Trooper Cherven informed the
defendant that they could not see the defendant on the
surveillance videotape from the store at which he had claimed to
purchase cigarettes. The defendant insisted that he had been
8
Police soon thereafter learned that the store did not
carry the brand of cigarettes that the defendant smoked, and the
store's surveillance footage did not confirm his presence there.
there. When asked about receiving a loan from the victim, the
defendant admitted to having borrowed money from the victim, but
stated that the loan amount was $10,000. When Trooper Cherven
confronted him with checks concerning the $25,000 loan, the
defendant expressed shock and insisted the he had only borrowed
$10,000 from the victim. The defendant told police that the
victim owed him money. The defendant left around 2:30 A.M. on
November 23. He agreed to return later for further questioning.
The defendant did not return. Instead, he stole a blank
check from his wife's uncle, wrote himself a check for $4,000,
cashed it, and fled. He was arrested in Georgia in December
after vanishing from his family with no word of his whereabouts.
When he was arrested, he had altered his appearance and was
using a fictitious name and address. When apprehended, the
defendant said, "Fuck. Okay. You got me -- you got me."
After his arrest, the defendant was detained pending trial.
While he was awaiting trial, the defendant on several occasions
attempted to fabricate evidence relative to the murder,
including an attempt to plant the murder weapon on Hayes. See
note 6, supra.
2. The defendant's case. The defendant testified.
According to him, the victim had been delivering cocaine for a
motorcycle gang called the "Outlaws." About one and one-half
years before the victim was killed, the victim had a package
delivered to one of the defendant's stores. The defendant
opened the package and discovered five packages of cocaine. He
told the victim he wanted nothing to do with it and left it
behind one of his stores. The defendant stated that the package
went missing and gang members contacted him and the victim to
let them know that they were going to be held responsible for
the loss of the drugs and would have to reimburse the gang
$150,000. The gang members threatened to kill their families if
they did not pay.
To repay the gang, the defendant testified that he took
money from his stores and obtained, with the help of Hayes, a
loan from the loan shark for $35,000. The money from the loan
was to be used for a drug transaction that was to involve the
defendant, the victim, and Hayes. According to the defendant,
Hayes set up the deal. It occurred after the poker game on
November 20, 2007, in the parking lot where the victim was
found. The defendant testified that he watched from the "far
corner" of the parking lot. He testified to the following. The
defendant saw Hayes leave his automobile and go over to the
victim, who was standing outside of his automobile. Hayes
reached into the victim's automobile and grabbed something out
of the front seat, then walked away. The victim entered his
automobile. After a couple of minutes, a truck pulled into the
parking lot. Hayes went over to the driver's side of the truck
and exchanged "bags" with the driver. Hayes returned to his
automobile and tossed the bag inside. Hayes then returned to
the victim. The two appeared to be talking, and then Hayes shot
the victim five times. Hayes went over to the defendant,
pointed the gun at him, told him to leave, and threatened him
and his family if he "opened his mouth."
The defendant testified that he did not tell anyone that
Hayes had killed the victim because he was "scared" based on
Hayes's threat to him. The defendant said that on November 22,
from a distance, Hayes had "racked" a shotgun at him and stated
he had more guns in his possession; on the morning of the next
day, he received a telephone call from Hayes; after this call,
the defendant decided to leave town because he was in fear of
his life and the lives of the members of his family. The
defendant admitted that, before he left, he stole $4,000 from
his wife's uncle and altered his appearance. He left a note to
police inside his automobile that he abandoned during his flight
encouraging police to "keep looking for" the victim's killer.
The defendant also testified that the victim had full
access to his home at any time. The defendant last saw his .40
caliber pistol with the victim, who had received his permission
to borrow it.
The defendant admitted that he had "lied from the
beginning." He had done so and had created various schemes from
jail to plant and fabricate evidence because he was afraid and
because he wanted to expose Hayes as the killer.
Through the cross-examination of the Commonwealth's
witnesses, the defendant elicited that there was a lack of
physical evidence establishing that he had been the shooter and
that the police investigation had been inadequate, thus laying
the basis for a Bowden defense, see Commonwealth v. Bowden, 379
Mass. 472, 486 (1980). In addition, defense counsel argued,
relying on his cross-examination of Trooper Cherven, that the
police had not fully investigated existing third-party culprit
evidence that pointed to Hayes as being the shooter.
Discussion. The defendant argues that (1) the trial judge
committed numerous evidentiary errors that undermined his right
to present several defenses and deprived him of due process and
a fair trial; (2) defense counsel misstated evidence during his
closing argument; and (3) the judge improperly responded to a
jury question.
1. Evidentiary errors. The defendant claims that the
judge "repeatedly and improperly prohibited" him from
introducing evidence relating to the adequacy of the police
investigation pursuant to Commonwealth v. Bowden, supra. He
contends also that he was precluded from presenting third-party
culprit evidence and from rebutting and responding to the
Commonwealth's consciousness of guilt evidence. The defendant
argues that these erroneous rulings caused "a common threat of
severe prejudice," depriving him of the right to present his
defense, the right to confrontation, and the right to a
fundamentally fair proceeding.9
a. Adequacy of the police investigation. A defense of
inadequate police investigation suggests to a jury "that the
evidence at trial may be inadequate or unreliable because the
police failed to conduct the scientific tests or to pursue leads
that a reasonable police investigation would have conducted or
investigated," with the result that the police may have missed
"significant evidence of the defendant's guilt or innocence."
Commonwealth v. Silva-Santiago, 453 Mass. 782, 801 (2009).
"Under the so-called Bowden defense, a defendant [also may]
challenge the adequacy of a police investigation [by using]
information concerning third-party culprits to question whether
the police took reasonable steps to investigate the crime."
Commonwealth v. Ridge, 455 Mass. 307, 316 (2009), citing
Commonwealth v. Bowden, 379 Mass. at 486. "Because any
9
The defendant raises more than thirty such evidentiary
errors and does so in footnotes. In these footnotes, he
provides no individual legal analysis or citation to the
relevant legal authority on which he relies. "Briefs that limit
themselves to 'bald assertions of error' that 'lack[] legal
argument . . . [do not] rise[] to the level of appellate
argument' required by [Mass. R. A. P. 16 (a) (4), as amended,
367 Mass. 921 (1975)]." Kellogg v. Board of Registration in
Med., 461 Mass. 1001, 1003 (2011). Nevertheless, we reviewed
these claims pursuant to our duty under G. L. c. 278, § 33E, and
conclude that they do not present any basis for relief.
statements introduced as part of such a defense are offered not
for their truth, but to prove that the police did not take
'reasonable steps to investigate,' those statements are not
hearsay." Commonwealth v. Bizanowicz, 459 Mass. 400, 414
(2011), quoting Commonwealth v. Ridge, supra. "Evidence is
admissible to show inadequate police investigation, however,
only if police learned of it during the course of their
investigation."10 Commonwealth v. Bizanowicz, supra, citing
Commonwealth v. Silva-Santiago, supra at 803. In addition, the
judge must determine "whether the probative weight of the Bowden
evidence exceed[s] the risk of unfair prejudice to the
Commonwealth from diverting the jury's attention to collateral
matters." Commonwealth v. Silva-Santiago, supra. "If the
[evidence] is admitted, the Commonwealth may offer evidence
explaining why the police did not follow that line of
investigation." Commonwealth v. Ridge, supra, citing
Commonwealth v. Silva-Santiago, supra at 803 n.25.
"[T]he exclusion of evidence of a Bowden defense is not
constitutional in nature and therefore is examined under an
abuse of discretion standard." Commonwealth v. Silva-Santiago,
supra at 804 n.26, citing Commonwealth v. Mayfield, 398 Mass.
10
In deciding whether to admit such evidence, a trial judge
must "conduct a voir dire hearing to determine whether the
third-party culprit information had been furnished to the
police." Commonwealth v. Silva-Santiago, 453 Mass. 782, 803
(2009).
615, 629 (1986). See Commonwealth v. Wood, 469 Mass. 266, 278
(2014). Where there has been an abuse of discretion, we review
properly preserved challenges involving alleged Bowden
violations for prejudicial error. Commonwealth v. Ridge, 455
Mass. at 317-318. With regard to unpreserved challenges, and
where there has been an abuse of discretion, we review to
determine whether a substantial likelihood of a miscarriage of
justice occurred. See Commonwealth v. Matthews, 450 Mass. 858,
866, 872 (2008). See also G. L. c. 278, § 33E.
i. Exclusion of evidence that police were informed that
victim's murder involved drugs. The defendant objects to four
instances where the judge excluded evidence that the police
received information that the victim's murder likely involved
drugs. First, although we agree with the defendant that the
judge should have permitted defense counsel to ask the victim's
wife whether she told the police after her husband's murder that
she believed that her husband's death was "over drugs," the
error did not prejudice the defendant. See Commonwealth v.
Ridge, 455 Mass. at 317-318. The defendant successfully
elicited from Trooper Cherven that "numerous people," including
the victim's wife and son, had suggested to police that the
murder might have been connected to drugs. The jury heard this
information and the victim's wife's testimony would have been
cumulative. See Commonwealth v. Alammani, 439 Mass. 605, 611-
612 (2003) (exclusion of statements involving facts of which
jury were already aware would have been cumulative and any
erroneous exclusion of such statements would not have prejudiced
defendant).
The defendant's Bowden defense also was not impaired when
the judge refused to permit defense counsel to elicit from
Sergeant Santos whether the purported "illegitimate purpose" of
a check from the victim to the defendant was to hide drug
activity. The judge did not abuse her discretion in concluding
that there was no basis to question Santos, who had been present
only as a witness during the questioning of the defendant, about
this subject, and that the subject should be left for Trooper
Cherven, the lead investigator who had conducted the
questioning. See Commonwealth v. Andrews, 403 Mass. 441, 461
(1988) (judge properly excluded witness's testimony where
witness had no personal knowledge of purported event). Defense
counsel later did ask Trooper Cherven whether he investigated
the purpose underlying the loan and whether the loan money was
"not for [a] legitimate reason."
The defendant asserts that his Bowden defense also was
impaired when the judge did not allow him to call a witness who
was expected to testify that, every ten minutes during the poker
game, he saw the victim walking outside. The witness, however,
did not see anything that occurred when the victim went outside.
Thus, the judge properly refused defense counsel from asking the
jury to infer from the expected testimony that the reason the
victim went outside was to meet someone for a drug deal. There
was no error. See Commonwealth v. Bright, 463 Mass. 421, 441
(2012); Olson v. Ela, 8 Mass. App. Ct. 165, 167 (1979).
The defendant contends that the judge erroneously precluded
him from calling one of the victim's brothers, Joe, as a witness
to testify that he had given information to police concerning
the victim's drug activities. Joe spoke with police on November
22, 2007. The interview was recorded and marked for
identification at trial. In that interview, Joe told police
that he thought that the victim's death had something to do with
drugs, the victim may have been dealing drugs, and the "guys"
from the Budweiser plant may have been involved.11 Joe also
stated that initially he thought that his brother's death may
have resulted from a drug overdose. At trial, defense counsel
objected to the exclusion of Joe's testimony on the basis that
it should have led the police to investigate Hayes.12 Defense
11
There was evidence that the victim had previously worked
at the Budweiser plant, which was close in proximity to where
his body was found.
12
Defense counsel argued to the judge that in the
interview, Joe had told police that Hayes was upset at the
victim for cheating on his sister (the victim's wife), and that
"perhaps the last breath of Kevin Hayes' father was [']kill [the
victim,'] and Joe thought it was curious that [the victim] was
killed after Kevin Hayes' father had passed away two days
counsel did not object on grounds relating to an inadequate
investigation of the victim's alleged drug activities. No
substantial likelihood of a miscarriage of justice could have
arisen from the exclusion of this evidence because the
information had already come out at trial through other
witnesses and would have been cumulative. See Commonwealth v.
Alammani, 439 Mass. at 611-612. Further, Joe's statements in
his police interview were clearly his personal suspicions based
on questionable conduct by the victim (possession of a camcorder
bag and telephone calls followed by trips to a fast food
restaurant) that he had observed. Joe, however, never actually
saw any drugs.13
ii. Exclusion of evidence that police were informed of
suspicions that Hayes may have been involved in victim's murder.
earlier." The defendant's references are taken out of context.
In the recording, Joe acknowledged that Hayes had been aware
that the victim had cheated on the victim's wife and had been
angry, but Joe did not think Hayes had killed the victim. Also,
when discussing how people can hold grudges, Joe said that
"someone said" that "maybe" Hayes's father's last words had been
"kill [the victim]." The information concerning Hayes being
upset with the victim for having cheated on the victim's wife
had already come out through Trooper Cherven, so its exclusion
would not have been prejudicial to the defendant. The latter
information about what the victim's father may have said was
inadmissible hearsay and improper speculation.
13
The same points apply with regard to the defendant's
remaining arguments concerning the victim's involvement with
drugs. Instances of limitation of such evidence fell within the
sound discretion of the trial judge, keeping in mind that the
issue was a collateral one and, as it pertained to drug use by
the victim, tended to prejudice the victim unduly.
No prejudice to the defendant could have arisen from the
exclusion of testimony from the defendant's stepfather regarding
suspicion, conveyed to the police, that Hayes was involved in
the victim's death because the evidence came in through Trooper
Cherven. See Commonwealth v. Alammani, 439 Mass. at 611-612.
iii. Exclusion of evidence concerning information about
"Scotty." Contrary to the defendant's suggestion, the judge did
not abuse her discretion in precluding the defendant from asking
Trooper Cherven whether Kelly Croce had told police that
somebody named Scotty had warned her that something might
happen.14 There was no proffer that Scotty's statement had
anything to do with the victim's death, and the judge, based on
the record before her, correctly determined that the proffered
evidence likely would generate jury confusion. See Commonwealth
v. Bright, 463 Mass. at 441. For these same reasons, the judge
did not abuse her discretion in handling other attempts by
defense counsel to admit evidence regarding Scotty. See id.
iv. Exclusion of evidence concerning Croce's boy friend.
Because Trooper Cherven did not interview Croce's boy friend,
the judge did not abuse her discretion in precluding the
defendant from questioning Trooper Cherven about police
14
There was evidence that Hayes and the victim had been
involved with drugs with Kelly Croce and her boy friend. There
was also evidence that Croce told police that Hayes was upset
with the victim because the victim had stolen his drug contacts.
questions posed to Croce's boy friend. See Commonwealth v.
Andrews, 403 Mass. at 461; Commonwealth v. Whitehead, 379 Mass.
640, 656 (1980). The defendant called the officer who did,
Trooper Christopher Dumont.
v. Exclusion of evidence of how police considered
information they received. First, during the further recross-
examination of Trooper Cherven, the judge sustained the
prosecutor's objection to the following question posed by
defense counsel: "My question is: Did you think that maybe
Kevin Hayes -- right after, on the Thursday or Friday after [the
victim] was killed when Kevin Hayes is saying that he suspected
[the defendant], did you give thought to maybe Kevin Hayes is
trying to create evidence in case [the defendant], at some
point, has the guts to come forward to say, Kevin Hayes killed
him, and I saw it?" The judge did not abuse her discretion in
sustaining the prosecutor's objection. The question was
designed to elicit an answer that required the witness to accept
an assumption not in evidence (that the defendant had "guts" to
come forward) when such an answer would require surmise.
Moreover, the witness had just testified that it never had
occurred to him that Hayes was implicating the defendant because
Hayes was fearful that the defendant would implicate him.
No prejudicial error arose when the judge precluded defense
counsel from questioning Trooper Chad Laliberte about whether
the defendant or someone else could have placed the defendant's
gun in the paint can or whether Trooper Laliberte considered
whether the person who put the gun in the paint can did not
realize the manufacturing date of the paint can. These
questions called for the witness to engage in speculation. See
Olson v. Ela, 8 Mass. App. Ct. at 167. Moreover, defense
counsel already had elicited the information he wanted from
Trooper Cherven who said that he knew, based on the date
indicating when the paint can had been manufactured and based on
the fact that the defendant at that time was incarcerated, that
the defendant could not have been the person who placed his gun
inside the paint can from which it was recovered.
No prejudicial error occurred when the judge cut off
further questioning of Trooper Cherven concerning whether he
thought a notation on a check indicating a loan from the victim
to the defendant "could have been subterfuge to cover for the
illegitimate drug transaction." Defense counsel already had
elicited that Trooper Cherven did not consider this money as
relating to drugs.
vi. Exclusion of evidence pertaining to the police
investigation of Hayes's background. The defendant argues that
his Bowden defense was impaired because the judge refused to
allow defense counsel to impeach Trooper Cherven "with questions
as to Hayes' background that the police had themselves conveyed
to [the defendant's stepfather]." The line of questioning
served to call into question Trooper Cherven's decision not to
look more closely at Hayes as a suspect. Although "defendants
are entitled to reasonable latitude on cross-examination, the
scope of such cross-examination, including the extent of
impeachment of a witness for credibility and competency, are
well within the judge's sound discretion." Commonwealth v.
Carrion, 407 Mass. 263, 273 (1990). Defense counsel was
permitted to ask Trooper Cherven whether any background
information on Hayes raised concerns or questions for him
regarding Hayes's possible involvement in killing the victim.
Trooper Cherven answered, "No." The judge sustained the
prosecutor's objection to defense counsel's next question which
asked whether Trooper Cherven had considered Hayes "[a]s far as
doing anything or things that were unsavored." She acted within
her discretion in so doing. The question was improper as it
called for an opinion concerning what "unsavored" meant. No
error occurred when the judge cut off questioning of Trooper
Cherven regarding whether he had information concerning any
involvement of Hayes with "mob people." Trooper Cherven
testified that he had given consideration to the fact that there
was information that Hayes had involvement with "bookies," and
that bookies sometimes are involved in organized crime. This
testimony sufficiently revealed the intimations of defense
counsel and use of the terminology "mob people" was unduly
inflammatory.
b. Third-party culprit. The defendant argues that
improper evidentiary rulings prejudicially obstructed his third-
party culprit defense. The well-established principles
governing the admissibility of third-party culprit evidence are
set forth in Commonwealth v. Silva-Santiago, 453 Mass. at 800-
801, and need not be restated. "Because the issue is one of
constitutional dimension, we are not bound by an abuse of
discretion standard, but rather examine the issue
independently." Commonwealth v. Conkey, 443 Mass. 60, 66-67
(2004), S.C., 452 Mass. 1022 (2008).
The defendant first claims error in the judge's limitation
of questions to Trooper Cherven concerning Hayes's attempts to
"mislea[d]" the police. As an initial matter, prior to trial,
in connection with a motion in limine, defense counsel admitted
that there were no substantial connecting links tying Hayes to
the victim's murder. Thus, the motion judge15 ruled that, unless
the substantial connecting link was provided by the defendant,
no third-party culprit evidence would be admissible at trial.
That showing had not been made when Trooper Cherven
testified. Thus, there is no merit to the defendant's claim
that his third-party culprit defense was impaired by his
15
The motion judge was not the trial judge.
inability to question Trooper Cherven about Hayes telling police
that he "heard" that the defendant had borrowed money from the
loan shark (when Hayes knew in fact that the defendant had).
Further, the proffered testimony did not establish a
"substantial connecting link" between Hayes and the victim's
murder. The evidence was inadmissible. Commonwealth v.
Bizanowicz, 459 Mass. at 418-419.
Second, the defendant claims error in the judge's
limitation of his testimony concerning a third-party culprit.
Once the defendant testified,16 the defendant's testimony that he
saw Hayes shoot and kill the victim provided the "substantial
connecting link" under the third-party culprit doctrine to
render such evidence admissible (so long as all other
prerequisites to admission were met). With this point in mind,
we turn to the defendant's claims of error.
The defendant asserts that the judge erroneously refused to
let him testify about the content of Hayes's telephone call to
him on the morning that the defendant fled. We conclude that
the evidence should have been admitted, but that its exclusion,
on this record, was harmless. See Commonwealth v. Rosario, 444
Mass. 550, 551 (2005). Although the content of the telephone
call was not elicited, there were telephone records
16
Defense counsel did not know whether the defendant would
testify until after the close of the Commonwealth's evidence.
corroborating the fact that the call had been made and the
defendant was permitted to testify that when he fled, he left in
fear for his life and in fear for the lives of his family.
Further, the defendant testified that it was Hayes who had
killed the victim, threatened him just after doing so, and
threatened him by racking the shotgun at him after the murder
had occurred. The jury reasonably could have inferred that
Hayes had threatened the defendant before he fled. The
defendant does not state in what other manner the content of the
telephone call would have materially aided his defense.
The defendant also claims that he should have been
permitted to testify, in accordance with the third-party culprit
doctrine, to how and when he learned that the murder weapon had
been planted at his house, when he believed that information to
be true, and to his opinion concerning who he believed planted
the gun at his home. It was made known off the record that this
information, in the main, derived from a letter that the
defendant had sent to his stepfather when he was in jail
awaiting trial. The letter was not admitted, but was marked for
identification and we have reviewed it.17
17
In the letter, the defendant tells of an encounter he had
with an unknown male inmate who attacked him in the shower. The
defendant wrote in the letter that he was able to obtain from
this unknown person information that Hayes "did not kill [the
victim], but is involved;" that Hayes told the unidentified
inmate where the gun was; that before trial unidentified people
The judge correctly determined that the proffered evidence
constituted inadmissible hearsay. In particular, the proffered
testimony was based on inadmissible "layered" hearsay (i.e., the
defendant stating what an unknown person said Hayes and other
unidentified persons said). See Commonwealth v. Caillot, 449
Mass. 712, 721 (2007). "[E]vidence based on a chain of
statements is admissible only if each out-of-court assertion
falls within an exception to the hearsay rule." Commonwealth v.
McDonough, 400 Mass. 639, 643 n.8 (1987), citing Bouchie v.
Murray, 376 Mass. 524, 527-531 (1978). To the extent that the
unknown inmate's statements do not offer the source of his
information, the statements have no reliability. The
information also amounts to nothing more than speculation. See
Commonwealth v. Santos, 463 Mass. 273, 296 (2012). The
defendant's testimony on these subjects was properly excluded.
In addition, the defendant's opinion concerning who had
planted the gun was properly excluded because it called for
speculation and was not based on personal knowledge given that
the defendant was in jail at the time the gun was planted in the
paint can. See Commonwealth v. Santos, supra. Further, even if
the defendant had been permitted to testify how and when he
learned that the gun had been planted in the paint can, how he
were going to "leak" to police that the defendant had the gun
and "leak" its location; and that Hayes was "making money on
it."
believed that information to be true, and who he believed
planted the gun inside the paint can, that information did not
inculpate Hayes as the shooter so the exclusion of this evidence
would have been harmless. Last, admission of this evidence
could have hurt the defendant. The unknown inmate said that
Hayes had not killed the victim. See note 17, supra. The
reference in the letter to Hayes's having being "involved" may
have meant a cover-up after the fact or participation in the
event underlying the killing (a drug transaction according to
the defendant), but the reference was hardly clear. Cf.
Commonwealth v. Alammani, 439 Mass. at 611-612 (judge properly
excluded hearsay evidence to show that defendant's mother
committed crime; evidence consisted of mother's statements which
were vague and "could have had any number of meanings").
c. Consciousness of guilt. Evidence of flight,
concealment, false statements to police, destruction or
concealment of evidence, bribing or threatening witnesses, or
similar conduct, generally is admissible as some evidence of
consciousness of guilt. See Commonwealth v. Stuckich, 450 Mass.
449, 453 (2008). "[C]onsciousness of guilt, together with other
evidence, may establish guilt." Commonwealth v. Epsom, 399
Mass. 254, 259 (1987), citing Commonwealth v. Porter, 384 Mass.
647, 653 (1981). When the Commonwealth has introduced
consciousness of guilt evidence, a defendant may rebut it. See
Commonwealth v. Hicks, 375 Mass. 274, 277-278 (1978), and cases
cited; Commonwealth v. Chase, 26 Mass. App. Ct. 578, 580-581
(1988). To the extent a defendant offers consciousness of
innocence evidence, "[s]uch evidence is [typically] of little
value" because of the variety of possible motives behind the
conduct, Commonwealth v. Oeun Lam, 420 Mass. 615, 620 (1995),
but when admitted, it is "properly left to the give and take of
argument, without jury instructions." Id. at 619. The
relevancy and admissibility of both types of evidence is within
the discretion of the trial judge.
The defendant testified that, after he received a telephone
call from Hayes on November 23, he fled to Georgia. He
testified that when he left, he was in fear of his life and the
lives of his family, and that he was fleeing from Hayes and not
the police. He stated that he did not go to the police because
he was afraid because Hayes had threatened him and his family at
the time of the murder and after by racking a shotgun at him.
The defendant testified that he disguised his appearance and
abandoned his automobile along the way, leaving a note with it
for the purpose of informing the police that they needed "to
keep looking for [the victim's] killer."
The defendant argues that he should have been permitted, in
rebutting the Commonwealth's consciousness of guilt evidence of
his flight, to testify to the content of Hayes's telephone call
to him as well as the content of the note he had left with his
automobile. He also contends that he should have been able to
testify that, once arrested, he wished to speak to police.
Last, he asserts that defense counsel should have been permitted
to ask him and Trooper Cherven questions about the defendant's
then attorney "having contacted police to raise safety
concerns," which the defendant asserts was relevant to his
fearful state of mind and rebutted the Commonwealth's
consciousness of guilt evidence. The defendant properly
preserved objections to these claims of error.
The content of Hayes's telephone call was not offered for
its truth, but rather insofar as relevant to the issue raised
here, to explain why the defendant fled to Georgia. On the
record, however, no prejudice to the defendant resulted from the
exclusion of this evidence. The jury heard that Hayes had
threatened the defendant (and his family) at the time of the
murder, and after it by racking a shotgun at him. The jury also
heard that the defendant, shortly after receiving the call from
Hayes, left the Commonwealth in a fearful state and in order to
evade Hayes, not police. The jury reasonably could have
inferred from this evidence that the defendant had fled, in
part, due to a threat made by Hayes during that telephone call.
There was no error in the exclusion of the defendant's
note, which was written after the murder and essentially
amounted to consciousness of innocence evidence. See
Commonwealth v. Fitzpatrick, 463 Mass. 581, 602-603 (2012);
Commonwealth v. Fatalo, 345 Mass. 85, 87 (1962); Commonwealth v.
Henry, 37 Mass. App. Ct. 429, 432-433 (1994).
Similarly, the fact that the defendant wished to speak to
police on his arrest also constituted consciousness of innocence
evidence and was properly excluded. The sincerity of the
defendant's request reasonably could be construed as unreliable.
See Commonwealth v. Martinez, 437 Mass. 84, 88 (2002)
(defendant's offer to submit to polygraph examination as
evidence of consciousness of innocence inadmissible). The
defendant's remaining claims of error, relating to his attempts
through an attorney to have his family receive protection, fall
into this same category.18
The next set of errors that the defendant raises relate to
instances where the judge precluded him from explaining why he
had engaged in a scheme to plant the gun.
Some background is in order. The defendant testified that
Hayes was the shooter. The gun used was the defendant's, but it
was not recovered until 2009. Following the murder and pursuant
18
We add that with respect to this evidence coming in
through Trooper Cherven, the concern for the defendant's
family's safety appeared to have come from the defendant's
stepfather, and not from the defendant. Thus, the evidence had
no bearing on the defendant's state of mind or consciousness of
innocence.
to a warrant, the police searched the defendant's home and
premises, but did not recover the gun. The Commonwealth
presented evidence that the defendant had been involved in a
scheme involving others to have the gun planted "back" on Hayes.
See note 6, supra. As indicated previously, Trooper Cherven
testified that, based on the date the paint can had been
manufactured and the fact that the defendant was incarcerated at
that time, police did not believe that the defendant was the
person who had placed the gun in the paint can.
The judge did not abuse her discretion in excluding a
letter (mentioned supra in connection with third-party culprit
evidence) that was written by the defendant to his stepfather
when the defendant was in jail awaiting trial. The letter
contained layered hearsay (namely, what an unknown inmate told
the defendant that Hayes had told the unknown inmate) and was
inherently unreliable. See Commonwealth v. Martinez, 437 Mass.
at 88.
Nor did the judge abuse her discretion in refusing to
permit the defendant to testify who he believed possessed the
gun after the murder. The defendant did not have personal
knowledge of that information and the question called for
speculation. See Olson v. Ela, 8 Mass. App. Ct. at 167.
The defendant next argues that he should have been
permitted to testify how he had learned of the emergence of the
gun. The basis of his expected testimony, as revealed in the
ensuing sidebar, was the information in the letter to his
stepfather involving what the unknown inmate had stated that
Hayes had told him. See note 17, supra. The judge properly
excluded the evidence. The information derived from layered
hearsay and did not involve facts known to the defendant based
on his personal knowledge. Also, the information concerning how
the defendant came to know of the emergence of the gun was not
relevant to why he had engaged in a scheme to plant the gun on
Hayes, the latter inquiry being relevant evidence to refute
consciousness of guilt. In this regard, the defendant was
permitted to testify why he had engaged in the scheme, namely,
that he did so in order to "put [the gun] back to where it
belonged."
There is no merit to the defendant's contention that his
defense counsel was impermissibly prohibited from eliciting from
a former inmate, Gerald Menard, when the defendant first raised
the issue of the gun emerging to corroborate the fact that the
defendant did not know about the gun at an earlier date. Menard
testified that the issue first arose in letters written to him
by the defendant within a week or two from when he (Menard) had
been released from jail, which was in October, 2009.
The defendant claims that he should have been able to
introduce statements he made to various individuals that could
have been construed as consistent with his claim of innocence.
The statements either maintained that Hayes had been the killer
or that the defendant had stated he was innocent or never said
that he had killed the victim. The evidence was classic
consciousness of innocence evidence, and the judge acted within
her discretion in excluding it. See Commonwealth v. Espada, 450
Mass. 687, 698 (2008).
d. Other evidentiary errors. The defendant argues that
other errors deprived him a fair trial. The judge did not
impermissibly preclude defense counsel from asking Trooper
Cherven whether the manner of the victim's killing, being
repeatedly shot, indicated hatred. The question impermissibly
called for speculation. See Commonwealth v. Whitehead, 379
Mass. at 656.
The defendant argues that it was error to exclude evidence
of the victim's toxicology screening because the presence of
certain drugs in his system at the time of his death bore on
whether he was able to experience pain and suffering, thus
preventing the jury from finding extreme atrocity or cruelty. A
case of murder in the first degree based on extreme atrocity or
cruelty may be proved by any one or more of the factors set
forth in Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983).
See Commonwealth v. Noeun Sok, 439 Mass. 428, 431 (2003). Here,
there was significant disproportion between the means necessary
to cause death and those used, and a significant number of
extensive wounds, thus establishing at least two of the Cunneen
factors. The possibility that the degree of the victim's
suffering may have been impaired by drug use would not have
prevented the jury from finding extreme atrocity or cruelty
based on these other factors. In these circumstances and on
this record, no prejudice to the defendant arose.
The record belies the defendant's contention that the judge
refused to allow defense counsel to question the defendant's
stepfather regarding his cooperation agreement with the
Commonwealth. The judge prohibited only one question and
followed the governing principles set forth in Commonwealth v.
Ciampa, 406 Mass. 257, 266 (1989), and Commonwealth v.
Washington, 459 Mass. 32, 44 n.21 (2011). There was no error.
The defendant next contends that the judge allowed Trooper
Cherven to improperly vouch for Hayes's credibility. There was
no improper vouching. The full context of the exchange to which
the defendant cites demonstrates that Trooper Cherven was not
expressing his personal belief in Hayes's credibility, but
rather summarized the fruits of the investigation. See
Commonwealth v. Ahart, 464 Mass. 437, 442-443 (2013). Our
conclusion applies equally to the remaining challenged
testimony, noting that such testimony occurred in the context of
rebutting the claims of an inadequate investigation.
The defendant's next argument is that the judge refused to
permit him to answer questions and fully explain his financial
relationship with the victim. Again, the defendant fails to
present the full picture of the part of the record to which he
cites. Regarding the first exchange to which the defendant
objects, the defendant's answers were not responsive to the
Commonwealth's questions and the judge did not abuse her
discretion in attempting to move the trial along. As to the
second objectionable exchange, which occurred during redirect
examination, the defendant improperly sought to introduce
statements that he had made to the victim or statements that the
victim had made to him. Such statements amounted to
inadmissible hearsay and were properly excluded. See
Commonwealth v. Eugene, 438 Mass. 343, 350 (2003).
2. Defendant's closing argument. The evidence at trial
established that the victim was known to carry a pistol and not
a revolver. The defendant argues that his trial counsel's
mistaken reference, in his closing argument, to the victim being
known to carry a revolver as opposed to a gun or to a pistol19
served to contradict the evidence suggesting that the victim was
known to carry the defendant's .40 caliber gun. The mistaken
19
There was no dispute at trial that the murder weapon was
a .40 caliber semiautomatic pistol that was owned by the
defendant. The term "pistol" was used synonymously with the
term "gun" throughout the trial.
reference, the defendant asserts, undermined his defense,
prejudiced his trial, and created a substantial likelihood of a
miscarriage of justice.
For claims of ineffective of assistance of counsel in a
capital case, which essentially is the essence of the
defendant's claim, we review pursuant to G. L. c. 278, § 33E, to
determine whether there exists a substantial likelihood of a
miscarriage of justice. Commonwealth v. Marrero, 459 Mass. 235,
244 (2011), citing Commonwealth v. Saferian, 366 Mass. 89, 96
(1974). Errors that arguably occur during the closing arguments
of counsel must be "considered in the context of the entire
argument, and in light of the judge's instructions to the jury
and the evidence at trial." Commonwealth v. Degro, 432 Mass.
319, 333-334 (2000), quoting Commonwealth v. Viriyahiranpaiboon,
412 Mass. 224, 231 (1992).
Although the defendant's trial counsel initially
incorrectly used the term "revolver," in the very next sentence,
regarding whether the victim was licensed to carry a firearm, he
referenced the term "gun." Both terms, when viewing defense
counsel's use of terminology in context, referenced the same
thing, namely the firearm used by the victim. Any possible
confusion that may have arisen was cured by the judge's charge
to the jury that explained that the arguments of counsel are not
evidence, the jurors are to decide the case based on the
evidence, the collective recollection of the jurors of what
comprises the evidence is to control, and the jurors are the
sole and exclusive judges of the facts. In these circumstances,
we conclude that the isolated misstatement did not create a
substantial likelihood of a miscarriage of justice.
3. Judge's response to jury question. During
deliberations, the jury asked the judge: "Could defense
[counsel] have called Kevin Hayes as a witness?" Over the
defendant's objection, the judge replied: "Jurors, if
available, a witness can be called by either party. However, a
defendant is not required to produce evidence, as the burden of
proof is on the Commonwealth, the prosecution."20
The defendant contends that the jury's question had no
relevance or application unless the jury sought to determine
whether the defense had an option to call Hayes and, if so, to
ascribe weight to the defendant's failure to produce him at
trial. As a result, the defendant argues that the judge's
response improperly permitted the jury to draw a negative
inference against the defendant for his failure to call Hayes,
and improperly placed a burden on the defendant to produce
evidence. Last, the defendant asserts that the error was
20
Defense counsel preferred the judge's initial proposed
response, namely that she could not "inquire of the defense as
to whether they could call any witnesses." Such a statement,
however, is not accurate or complete.
compounded by repeated improper burden-shifting remarks made by
the prosecutor in his closing argument.
"The proper response to a jury question must remain within
the discretion of the trial judge, who has observed the evidence
and the jury firsthand and can tailor supplemental instructions
accordingly." Commonwealth v. Monteagudo, 427 Mass. 484, 488
(1998), quoting Commonwealth v. Waite, 422 Mass. 792, 807 n.11
(1996). "[B]efore a judge responds to a jury communication of
legal significance . . . , counsel should be given the
opportunity to assist the judge in framing an appropriate
response and to place on record any objection they might have to
the course chose by the judge." Commonwealth v. Floyd P., 415
Mass. 826, 833 (1993). The judge's additional instructions
"must be read in light of the entire charge," and the judge is
"not required to repeat all aspects of [her] prior charge."
Commonwealth v. Sellon, 380 Mass. 220, 233-234 (1980).
Here, the jury's question, and the judge's response, took
on significance because at trial the judge declined to give the
defendant's missing witness instruction regarding Hayes because
the Commonwealth had legitimate tactical reasons for not calling
him and he had been equally available to both sides, but neither
side wished to call him.21 See Commonwealth v. Salentino, 449
Mass. 657, 668 (2007); Commonwealth v. Figueroa, 413 Mass. 193,
199 (1992), S.C., 422 Mass. 72 (1996). She permitted, however,
defense counsel to comment on the Commonwealth's failure to call
him as a witness, which he did. This was error. Commonwealth
v. Salentino, supra at 671 (if judge determines missing witness
adverse inference is not appropriate in case, jury should not,
whether by way of instruction or argument, be given option of
drawing inference). No prejudice arose to the defendant,
however, because he "got more than he was entitled to in the
first place." Id. at 672.
In these circumstances, the judge's response did not
prejudice the defendant. The judge followed appropriate
procedures by consulting with counsel. Her supplemental
instruction, when viewed in light of the entire charge, would
not have resulted in shifting the burden of proof to the
defendant and would not have permitted the jury to draw an
adverse inference against the defendant for not calling Hayes as
a witness. In her supplemental instruction and repeatedly in
her earlier charge to the jury, the judge forcefully instructed
21
The underlying reasons concerning the Commonwealth's
decision were not expressly stated on the record, nor was any
explanation given concerning Hayes's availability.
the jury that the Commonwealth bore the burden of proof.22
Although the usual practice is for a judge expressly to instruct
the jury not to draw inferences from the failure of a defendant
to call a witness, see Commonwealth v. Franklin, 366 Mass. 284,
293 (1974), quoting Commonwealth v. Finnerty, 148 Mass. 162, 167
(1889), and that would have been the better practice here, a
reasonable juror would not have construed the judge's
instructions as permitting the jury to draw such an inference.
We add also that the jury would not have known whether Hayes had
been "available" to have been called. Thus, the jury could not
have inferred that he was available to be called by the defense
to testify. Examining the supplemental instruction in light of
this factor and the circumstances, as well as the charge as a
whole, we conclude that no prejudicial error occurred.
We consider next whether the judge's response to the jury
question was compounded by alleged improper burden-shifting
22
In her earlier charge, the judge also instructed as
follows:
"Jurors, the defendant in this case, as in every
criminal case, is presumed innocent. You as jurors must
bear in mind that the law never imposes on a defendant in a
criminal case the burden or the duty of calling any witness
or indeed of presenting any evidence whatsoever. This
legal presumption of the defendant's innocence is not an
idle theory to be discarded or disposed of by the jury by
caprice, passion, or prejudice. Furthermore, the defendant
is not to be found guilty of these charges on suspicion or
conjecture, but only on evidence produced and admitted
before you, the jury, in this courtroom; evidence which
establishes his guilt by proof beyond a reasonable doubt."
language in the prosecutor's closing argument. The defendant
challenges the following statements of the prosecutor:
"Now we get to the critical time frame. . . . If
somehow you think [that the defendant's] telling the truth
about that . . . now we hear, 'Oh, Kevin Hayes is
outside.' Again, the defendant absolutely doesn't have to
prove anything. This is the burden of the Commonwealth.
This is what this country is all about. But he got up
there and can't prove that. Kevin Hayes."
"Car's backed in. November night. Windows down.
Consistent with someone knowing the person? Victim sitting
in the seat. Someone smoking outside, I would ask you to
find. Notice how [the defendant] conveniently says, 'I
left five to six cigarettes there. I was smoking.' He
knows that [a] cigarette was there. Chief Walsh said it
could have been up to a day. It is not unreasonable for
you to find, in fact very reasonable, he is puffing his
Parliament Lights, not Parliament, chatting with the
victim. The victim's at ease, or sitting in his car. He's
got the murder weapon, knows how to use it. . . . The only
evidence of anything going on in that parking lot is him
smoking and the victim executed. There's no evidence of
Kelly Croce or Kevin Hayes or whoever he wants; the
Outlaws."
"There's not one shred of credible evidence [that]
Kevin Hayes was involved in anything. There's not one --
the fact that [the loanshark] said, 'Oh, you ought to look
at Kevin Hayes.' Said he was kidding. This is his sister
whose husband was murdered. Because he didn't like him or
said, 'I don't like the guy,' he's going to kill him? That
is a smoke screen and a diversion, which is what [the
defendant] is all about. There is no evidence."
The defendant did not object to these statements at trial. We
therefore review to determine whether the statements were
improper, and if so, whether they created a substantial
likelihood of a miscarriage of justice. Commonwealth v.
Francis, 450 Mass. 132, 140 (2007). "We consider the remarks in
the context of the entire argument, and in light of the judge's
instructions to the jury and the evidence at trial." Id.,
citing Commonwealth v. Yesilciman, 406 Mass. 736, 746 (1990).
Generally, a prosecutor "cannot make statements that shift
the burden of proof from the Commonwealth to the defendant."
Commonwealth v. Amirault, 404 Mass. 221, 240 (1989). Such
burden shifting typically arises where a prosecutor offers
direct comment on the defendant's decision not to testify, see
Commonwealth v. Feroli, 407 Mass. 405, 409 (1990), quoting
Commonwealth v. Storey, 378 Mass. 312, 324 (1979), cert. denied,
446 U.S. 955 (1980), or "calls the jury's attention to the
defendant's failure to call a witness or witnesses, or . . . 'to
contradict testimony.'" Commonwealth v. Tu Trinh, 458 Mass.
776, 787 (2011), quoting Commonwealth v. Miranda, 458 Mass. 100,
117 (2010), cert. denied, 132 S. Ct. 548 (2011). In these cases
"the prosecution is signaling to the jury that the defendant has
an affirmative duty to bring forth evidence of his innocence,
thereby lessening the Commonwealth's burden to prove every
element of a crime." Commonwealth v. Tu Trinh, supra. A
prosecutor, however, "is entitled to emphasize the strong points
of the Commonwealth's case and the weaknesses of the defendant's
case." Commonwealth v. Feroli, supra.
We conclude that the remarks were a proper reflection on
the weakness of the defendant's case. See Commonwealth v.
Bregoli, 431 Mass. 265, 275-276 (2000). In addition, the
remarks must be reviewed in the context of the trial, in which
the defendant testified to the fact and argued that Hayes had in
fact committed the murder. The prosecutor's remarks were an
attempt to meet the Commonwealth's essential burden "to prove
beyond a reasonable doubt that the third-party culprit did not
commit the crime." Commonwealth v. Silva-Santiago, 453 Mass. at
801. Cf. Commonwealth v. Williams, 450 Mass. 879, 889 (2008)
(prosecutor's comments were attempt to meet Commonwealth's
burden of disproving self-defense). Even if the remarks crossed
the line, no substantial likelihood of a miscarriage of justice
arose because the judge instructed the jury repeatedly that the
Commonwealth bore the burden of proof, the defendant has no
burden of producing any evidence or witnesses and is presumed
innocent, and that the arguments of counsel are not evidence.
See Commonwealth v. Tu Trinh, 458 Mass. at 788; Commonwealth v.
Bregoli, supra at 276. Further, "[t]he fact that the defendant
did not object, '[a]lthough not dispositive of the issue . . .
is some indication that the tone [and] manner . . . of the now
challenged aspects of the prosecutor's argument were not
unfairly prejudicial.'" Commonwealth v. Mello, 420 Mass. 375,
380 (1995), quoting Commonwealth v. Sanchez, 405 Mass. 369, 375
(1989).
4. Review pursuant to G. L. c. 278, § 33E. We discern no
basis to exercise our authority pursuant to G. L. c. 278, § 33E.
Judgment affirmed.